EXHIBIT 10.3
LOAN AND STOCK PLEDGE AGREEMENT
THIS LOAN AND STOCK PLEDGE AGREEMENT (the "Agreement"), entered into as
of July 7, 2003, between COMMUNITY NATIONAL BANCORPORATION, Ashburn, a Georgia
corporation (the "Borrower"), and XXXXXXX X. XXXX, a natural person (the
"Lender").
On the date hereof the Borrower is borrowing the principal amount of
$6,000,000 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 Community National
Bank, having its main office at 000 X. Xxxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000
and First National Bank of Tarpon Springs, having its main office at 000 X.
Xxxxxx Xxxxxx, Xxxxxx Xxxxxxx, Xxxxxxx 00000 and Cumberland National Bank,
having its main office at 000 Xxxxxxx Xxxxx, Xx. Xxxxxxx, Xx. Xxxx'x, Xxxxxxx
00000 (the "Bank"). Certain capitalized terns 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, consensual 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 $18,800,000, 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 $18,800,000.
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
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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 000 X.
Xxxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000.
(b) Community National Bank of Ashburn 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 300,000 shares) and
there are no other outstanding shares of capital stock and no outstanding
options, warrants or other rights that 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.
Community National Bank of St. Mary's 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 400,000 shares) and there are no
other outstanding shares of capital stock and no outstanding options, warrants
or other rights that 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.
First National Bank is a banking corporation duly organized, validly existing,
and in good standing under the laws of the State of Florida. The Borrower owns
all the Stock (consisting of 5,000 shares) and there are no other outstanding
shares of capital stock and no outstanding options, warrants or other rights
that can be converted into shares of capital stock of the Bank. The Bank has
all requisite corporate power and authority and possesses all licensee, 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
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the Borrower of the Financing Documents (i) have been duly authorized by all
requisite action by the Borrower, (ii) do not violate may 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 an 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.
(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 Stare on 05/21/99); (ii) certificates of existence for the Borrower
issued by the Georgia Secretary of State on 03/28/01; (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 at a meeting duly called and held an 3/2/01 and 11/13/01. A quorum
for the transaction of business was present and acting throughout the meeting at
which the Resolutions xxxx adopted, and the Resolutions have been since adopted
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
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is outstanding or this Agreement is in effect:
(a) The Borrower shall promptly furnish to the Lender: (i) not later
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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 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, management, or prospects (financial or otherwise) of the Borrower or
any Subsidiary, including, without limitation, 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 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.
(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.
(d) The Borrower shall immediately notify the Lender of any change
in management or the beneficial ownership of the Borrower's stock by any
officer, director or 25% or greater shareholder of the Borrower.
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 $18,800,000.
(b) The Borrower shall not permit the capital ratios of any of the
Bank Subsidiaries as of the end of any fiscal year to be less than: 10% for
Total Risk-Based Capital, 6% for Tier 1 Risk-Based Capital and 5% for Tier 1
Leverage Capital.
(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 to be less than .75% on an annualized basis at any quarter end, except
that the ratio for 2002 only, will not be less than .60%.
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(e) The Borrower 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) The Borrower's subsidiary Bank shall maintain asset quality
ratios as follows: 1) Net Charge-Offs will be less than 0.75% of average loans.
(Cumberland Xxxxxxxx Xxxx, Xx. Xxxx'x, Xxxxxxx is exempt from this ratio for the
remainder of 2002 only) 2) Non-performing loans shall be less than .75% of gross
assets at any quarter end, except that Cumberland Xxxxxxxx Xxxx, Xx. Xxxx'x,
Xxxxxxx and First National Bank, Tarpon Springs, Florida are exempt from this
ratio for the remainder of 2002 only. (Non-performing loans are those loans on
non-accrual plus all other loans 90 days or more past due, less the government
guaranteed portion of those loans.) 3) Non-performing loans plus Other Real
Estate Owned shall be less than 2.00% of total assets.
(g) 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.
(h) The Borrower shall not, directly or indirectly, become a
guarantor of any obligation of, or as 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.
(i) The Borrower shall not, nor permit any 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, or create any Subsidiary or enter into any partnership or
joint venture.
(j) The Borrower shall not permit any Subsidiary to issue, sell or
otherwise dispose of 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.
(k) 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
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
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 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.
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(c) No adverse change shall have occurred in the Borrower's or any
Subsidiary's condition (financial, or otherwise), or in the business,
properties, assets, liabilities, prospects, or management of the Borrower or
any Subsidiary 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.
(e) All other matters incidental to the Loan shall be satisfactory
to the Lender.
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.
(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 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 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 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 say of its property, and such action is
consented to or acquiesced in by the Borrower or such Subsidiary or is not
dismissed within 30 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 30 days of the date upon which it was
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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 30 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 30 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, means, or ability to pay the Liabilities.
(i) Any cease and desist or other order has been threatened,
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
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Subsidiary has 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.
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;
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(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 consensual 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 therefore, 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
(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 there from.
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 which may have
accrued on any obligations secured hereby; (iii) any unpaid principal on any
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obligations secured hereby; and (iv) damages incurred by the Lender by reason
of any breach secured against 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, 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 Agent. 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.
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.
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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: At such place as the Lender may specify in a
written notice to the Borrower (together with a
copy to Lender's counsel, Xxxxxxx Xxxx)
If to the Borrower: Community National Bancorporation
000 X. Xxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
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 construed
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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 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. The Borrower shall supply all reports and other documents or
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information furnished to the Lender under this Agreement without cost to the
Lender. Further, the Borrower shall reimburse the Lender on demand for all out-
of-pocket costs and expenses (including 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.
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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
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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
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counsel shall determine that any further document shall be required to effect
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.
20. Severability. If any paragraph or part thereof shall for any reason
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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.
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(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. Section 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, the Pledge Agreement, and all other associated loan and collateral
document 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 therefore.
(f) "Liabilities" means all indebtedness, liabilities, and
obligations of the Borrower of any nature whatsoever which the Lender may now
or hereafter have, owing 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
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 therefore.
(g) "Note" shall mean the promissory note dated the date hereof in
the principal amount of $6,000,000 and any amendments, extensions, renewals,
modifications, or substitutions thereof or therefore 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
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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 generally accepted accounting
principles in effect from time to time.
[Signature page follows]
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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: LENDER:
COMMUNITY NATIONAL BANCORPORATION
/s/Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx
By: /s/Xxxxxx X. Xxxx
---------------------------------
Name: Xxxxxx X. Xxxx
---------------------------------
Title: President
---------------------------------
Attest: /s/X. Xxxxxxx Xxxxx
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Name: X. Xxxxxxx Xxxxx
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Title: Secretary
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[CORPORATE SEAL]
Signature Page - Loan and Stock Pledge Agreement
