LOAN AND STOCK PLEDGE AGREEMENT
THIS LOAN AND STOCK PLEDGE AGREEMENT (the "Agreement"), entered into as
of July 31, 2000, between xxxxx.xxx, Inc., a Georgia corporation (the
"Borrower"), and THE BANKERS BANK, a Georgia banking corporation (the "Lender").
On the date hereof the Borrower is borrowing the principal amount of up
to $2,500,000 from the Lender (the "Loan"), which will be evidenced by the Note.
The Lender is willing to make the Loan to the Borrower on the terms and
conditions described below. The Borrower and Lender agree that the payment and
performance of all obligations relating to the Loan will be secured through the
pledge to the Lender of all the issued and outstanding shares of capital stock
owned or hereafter acquired by the Borrower (the "Stock") in ebank, having its
main office at 0000 Xxxxx Xxxxx Xxxx, Xxxxxxx, Xxxxxxx 00000 (the "Bank"), and
the unconditional joint and several personal guaranty of Xxxxx Xxxxxxx, Xxxxxxx
Xxxxx, Xxxx Xxxxxx, Xxxxx Xxxxxxxx, Xxxx Xxxxxx, Xxxxx X. Xxxxxxxx, III, Xxxx
Xxxxxxxxxxx and Xxxxxxx X. Xxxxxx (the "Guaranty Agreement"). Certain
capitalized terms used in this Agreement are defined in Section 22 of this
Agreement.
In consideration of the premises and the mutual agreements and
representations in this Agreement, the Lender and the Borrower agree as follows:
1. SECURITY INTEREST.
(a) The Borrower hereby unconditionally grants and assigns to the
Lender and its successors and assigns a continuing security interest in and
security title to the Stock. The Borrower hereby delivers to the Lender all of
its right, title and interest in and to the Stock, together with certificates
representing the Stock and stock powers endorsed in blank, as security for (i)
all obligations of the Borrower to the Lender hereunder, and (ii) payment and
performance of all obligations of the Borrower to the Lender under the Note,
whether direct or indirect, absolute or contingent, now or hereafter existing,
or due or to become due. If the Borrower receives, for any reason whatsoever,
any additional shares of the capital stock of the Bank, such shares shall
thereupon constitute Stock to be held by the Lender under the terms of this
Agreement and the Borrower shall immediately deliver such shares to the Lender,
together with stock powers endorsed in blank by the Borrower. Beneficial
ownership of the Stock, including all voting, consentual and dividend rights,
shall remain in the Borrower until the occurrence of a Default.
(b) If, prior to repayment in full of the Loan, the aggregate book
value of the Stock becomes less than $6,000,000, 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 $6,000,000. 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
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 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 thrift holding company with the Office of Thrift
Supervision. The chief executive office of the Borrower and the principal place
of business of the Borrower where the records of the Borrower are kept are
located at 0000 Xxxxx Xxxxx Xxxx, Xxxxxxx, Xxxxxxx 00000 (Xxxx County), and the
Borrower's U.S. employer identification number is 00-0000000.
(b) The Bank is a federal savings bank duly organized, validly
existing, and in good standing under the laws of the United States. The Borrower
owns all the Stock (consisting of ________ shares) and there are no other
outstanding shares of capital stock and no outstanding options, warrants or
other rights which can be converted into shares of capital stock of the Bank.
The Bank has all requisite corporate power and authority and possesses all
licenses, permits and authorizations necessary for it to own its properties and
conduct its business as presently conducted.
(c) Each financial statement of the Borrower or any Subsidiary which
has been delivered to the Lender presents fairly the financial condition of the
Borrower or such Subsidiary as of the date indicated therein and the results of
its operations for the periods shown therein. There has been no material adverse
change, either existing or threatened, in the financial condition or operations
of the Borrower or any Subsidiary since the date of such financial statement.
(d) The Borrower has full power and authority to execute and perform
the Financing Documents. The execution, delivery, and performance by the
Borrower of the Financing Documents (i) have been duly authorized by all
requisite action by the Borrower, (ii) do not violate any provision of law, and
(iii) do not result in a breach of or constitute a default under any agreement
or other instrument to which the Borrower or any Subsidiary is a party or which
the Borrower or any Subsidiary is bound. Each of the Financing Documents
constitutes the legal, valid, and binding obligation of the Borrower enforceable
in accordance with its terms.
(e) Except for the security interest created by this Agreement, the
Borrower owns the Stock free and clear of all liens, charges, and encumbrances.
The Stock is duly issued, fully paid and non-assessable, and the Borrower has
the unencumbered right to pledge the Stock.
(f) There is no action, arbitration, or other proceeding at law or in
equity, or by or before any court, agency, or arbitrator, nor is there an
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,
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any Subsidiary, or their respective properties or assets, or which might call
into question the validity or enforceability of the Financing Documents, or
which might involve the alleged violation by the Borrower or any Subsidiary of
any law, rule or regulation.
(g) No consent or other authorization or filing with or of any
governmental authority or other public body on the part of the Borrower or any
Subsidiary is required in connection with the Borrower's execution, delivery, or
performance of the Financing Documents; or if required, all such prerequisites
have been fully satisfied.
(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 articles of incorporation and the Bank's
charter as in effect as of the date here (as certified by the Secretary of State
of the State of Georgia on July 31, 2000 and the Office of Thrift Supervision on
July 31, 2000, respectively); (ii) certificates of existence for the Borrower
issued by the Secretary of State of the State of Georgia on July 31, 2000 and
for the Bank issued by the Office of Thrift Supervision on July 31, 2000; (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 on July 31, 2000.
A quorum for the transaction of business was present and acting throughout the
meeting at which the Resolutions were adopted, and the Resolutions have been
since adoption and are now in full force and effect and have not been modified
in any respect. There have been no further amendments or other documents
affecting or altering the Borrower's articles of incorporation or the Bank's
charter 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 and the United States, respectively, since such
dates.
3. AFFIRMATIVE COVENANTS.
The Borrower agrees that so long as the Note is Outstanding or this
Agreement is in effect:
(a) The Borrower shall promptly furnish to the Lender: (i) not later
than 120 days after the end of each fiscal year, audited consolidated Financial
statements of the Borrower prepared in accordance with generally accepted
accounting principles ("GAAP") and certified by an independent accounting firm
acceptable to the Lender; (ii) not later than 45 days after each of the first
three quarters of each fiscal year, unaudited consolidated financial statements
of the Borrower, prepared in accordance with GAAP (subject to changes resulting
from normal year-end adjustments) and 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
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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.
(e) The Borrower shall allow the Lender to inspect the Borrower's books
and records, to review the loan portfolios of each Subsidiary and to review
internal and external loan review reports concerning each Subsidiary, which
inspections and reviews may be performed by the Lender at any time and from time
to time during the term of the Loan.
4. NEGATIVE COVENANTS.
The Borrower agrees that so long as the Note is outstanding, or this
Agreement is in effect:
(a) The Borrower shall not permit the ratio of Tier 1 Capital to
average total assets (the Tier 1 Leverage Ratio) of any of the Bank Subsidiaries
as of the end of any fiscal quarter to be less than 7.0%.
(b) The Borrower shall not permit the Tier 1 Risk Based Capital Ratio
(as defined by the capital maintenance regulations of the primary federal bank
regulatory agency of the relevant Bank Subsidiary) of any of the Bank
Subsidiaries as of the end of any fiscal quarter to be less than 9.5%.
(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.
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(d) The Borrower shall not permit the allowance for loan and lease
losses of any of the Bank Subsidiaries to be less than 1.0% of its gross loans
for each fiscal quarter.
(e) The Borrower shall not permit the aggregate amount of its loans or
the loans of any Bank Subsidiary which are internally or externally classified
either substandard, doubtful or loss to exceed 45% of the sum of Tier 1 Capital
Plus the allowance for loan and lease losses of the Borrower or such Bank
Subsidiary, as the case may be.
(f) The Borrower shall not incur or permit to exist any indebtedness or
liability for borrowed money in excess of $100,000 other than to the Lender or a
wholly-owned Subsidiary of the Borrower without prior Lender approval, except
that this covenant shall not apply to deposits, repurchase agreements, federal
funds borrowings, overdrafts, and other banking transactions entered into by a
Subsidiary in the ordinary course of its business.
(g) The Borrower shall not, directly or indirectly, become a guarantor
of any obligation of, or an endorser of, or otherwise assume or become liable
upon any notes, obligations, or other indebtedness of any other Person (other
than a Subsidiary) except in connection with the depositing of checks in the
normal and ordinary course of business.
(h) The Borrower shall not, nor permit any 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.
(i) The Borrower shall not permit any Subsidiary to issue, sell or
otherwise dispose or part with control of any shares of any class of its stock
(other than directors' qualifying shares) except to the Borrower or a
wholly-owned Subsidiary of the Borrower.
(j) The Borrower shall not sell or otherwise dispose or part with
control of any of the Stock or any other securities or indebtedness of any
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.
(k) The Borrower shall not pay any dividend at any time a Default
exists; moreover, the Borrower shall not, without the prior written consent of
the Lender, pay any dividend which would cause a Default.
5. ADVANCES UNDER THE LOAN.
The Lender shall not be obligated to make any 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 chance 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:
(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 under any other instrument executed by the
Borrower in favor of the Lender.
(e) If the Borrower or any Subsidiary becomes insolvent as defined in
the Georgia Uniform Commercial Code or makes an assignment for the benefit of
creditors; or if any action is brought by the Borrower or any Subsidiary seeking
dissolution of the Borrower or such Subsidiary or liquidation of its assets or
seeking the appointment of a trustee, interim trustee, receiver, or other
custodian for any of its property; or if the Borrower or any Subsidiary
commences a voluntary case Lender 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.
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(f) Any action is brought against the Borrower or any Subsidiary
seeking dissolution of the Borrower or such Subsidiary or liquidation of any of
its assets or seeking the appointment of a trustee, interim trustee, receiver,
or other custodian for any of its property, and such action is consented to or
acquiesced in by the Borrower or such Subsidiary or is not dismissed within 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 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 or 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 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.
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7. REMEDIES UPON DEFAULT.
Upon the occurrence of a Default, the Lender shall be entitled, without
limitation, to exercise the following rights at any time and from time to time,
which the Borrower hereby agrees to be commercially reasonable:
(a) declare any of the Liabilities due and payable, whereupon they
immediately will become due and payable (notwithstanding any provisions to the
contrary, and without presentment, demand, notice or protest of any kind (all of
which are expressly waived by the Borrower));
(b) (i) receive all amounts payable in respect of the Collateral
otherwise payable to the Borrower; (ii) settle all accounts, claims, and
controversies relating to the Collateral; (iii) transfer all or any part of the
Collateral into the Lender's or any nominee's name; and (iv) execute all
agreements and other instruments; bring, defend and abandon all actions and
other proceedings; and take all actions in relation to the Collateral as the
Lender in its sole discretion may determine;
(c) enforce the payment of the Stock and exercise all of the rights,
powers and remedies of the Borrower thereunder, including the exercise of all
voting rights and other ownership or consentual rights of the Stock (but the
Lender is not hereby obligated to exercise such rights), and in connection
therewith the Borrower hereby appoints the Lender to be the Borrower's true and
lawful attorney- in-fact and IRREVOCABLE PROXY to vote the Stock in any manner
the Lender deems advisable for or against all matters submitted to a vote of
shareholders, and such power-of-attorney is coupled with an interest and
irrevocable;
(d) sell, assign and deliver, or grant options to purchase, all or any
part of or interest in the Collateral in one or more parcels, at any public or
private sale at any exchange, any of the Lender's offices, or elsewhere, without
demand of performance, advertisement, or notice of intention to sell or of the
time or place of sale or adjournment thereof or to redeem or otherwise (all of
which are hereby expressly and irrevocably waived by the Borrower), for cash, on
credit, or for other property, for immediate or future delivery without any
assumption of credit risk, and for such price and on such terms as the Lender in
its sole discretion may determine; the Borrower agrees that to the extent that
notice of sale shall be required by law that at least five business days' notice
to the Borrower of the time and place of any public sale or the time after which
any private sale is to be made shall constitute reasonable notification; the
Lender shall not be obligated to make any sale of Collateral regardless of
notice of sale having been given; the Lender may adjourn any public or private
sale from time to time by announcement at the time and place fixed therefor, and
any such sale may, without further notice, be made at the time and place to
which it was so adjourned; the Borrower hereby waives and releases to the
fullest extent permitted by law any right or equity of redemption with respect
to the Collateral, whether before or after sale hereunder, and all rights, if
any, of marshalling the Collateral and any other security for the Loan or
otherwise; at any such sale, unless prohibited by applicable law, the Lender may
bid for and purchase all or any part of the Collateral so sold free from any
such right or equity of redemption; and the Lender shall not be liable for
failure to collect or realize upon any or all of the Collateral or for
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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 therefrom.
8. APPLICATION OF PROCEEDS.
The proceeds of the public or private sale or 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 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 and privileges under this Agreement,
the Lender may exercise from time to time any and all other rights and remedies
available to a secured party when a debtor is in default under a security
agreement as provided in the Uniform Commercial Code of Georgia, or available to
the Lender under any other applicable law or in equity, including without
limitation the right to any deficiency remaining after disposition of the
Collateral. The Borrower shall pay all of the reasonable costs and expenses
(including reasonable attorneys' fees) incurred by the Lender in enforcing its
rights under this Agreement.
10. RETURN OF STOCK TO BORROWER.
Upon payment in full of all principal 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 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 ignore private (instead of
public) sales in view of the lack of such
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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 under this Agreement shall be direct
and immediate and not conditional or contingent upon the pursuit of any other
remedies against the Borrower or any other Person, nor against other security or
liens available to the Lender or its successors, assigns or agents. The Borrower
hereby waives any right to require that an action be brought against any other
Person or require that resort be had to any security or to any balance of any
deposit account or credit on the books of the Lender in favor of any other
Person prior to any exercise of rights or remedies hereunder, or to require
resort to rights or remedies of the Lender in connection with the Loan.
13. NOTICES.
Except as provided otherwise in this Agreement, all notices 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 the
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 oil the second business day after being so posted.
If to the Lender: The Bankers Bank
0000 Xxxxx Xxxxx Xxxx
000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Xxxx Xxxxxx
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If to the Borrower: xxxxx.xxx, Inc.
0000 Xxxxx Xxxxx Xxxx
Xxxxxxx. Xxxxxxx 00000-0000
Attn: Xxxxx X. Xxxxxxxx, III
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 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 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.
All reports and other documents or information furnished to the Lender
under this Agreement shall be supplied by the Borrower without cost to the
Lender. Further, the Borrower shall reimburse the Lender on demand for all
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 Borrower under this
Agreement, the Borrower shall pay and indemnify the Lender from and against all
claims, liabilities, losses, costs, and expenses (including, without limitation,
reasonable attorneys' fees and expenses) which the Lender may (other than as a
result of the gross negligence or willful misconduct of the Lender) incur or be
subject to as a consequence, directly or indirectly, of (i) any breach by the
Borrower of any warranty, term or condition in, or the occurrence of any default
under, any of the Financing Documents, including all fees or expenses resulting
from the settlement or defense of any claims or liabilities arising as a result
of any such breach or default, (ii) the Lender's making, holding, or
administering the Loan or the Collateral, (iii) allegations of participation or
interference by the Lender in the management, contractual relations or other
affairs of the Borrower or any Subsidiary, (iv) allegations that the Lender has
joint liability with the Borrower or any Subsidiary for any reason, and (v) any
suit, investigation, or proceeding as to which the Lender or such participant is
involved as a consequence, directly or indirectly, of its execution of any of
the Financing Documents, or any other event or transaction contemplated by any
of the foregoing. The obligations of Borrower under this Section 17 shall
survive the termination of this Agreement.
18. RIGHT TO SET-OFF.
Upon the occurrence of a Default hereunder, the Lender, without notice
or demand of any kind, may hold and set off against such of the Liabilities
(whether matured or unmatured) as the Lender may elect any balance or amount to
the credit of the Borrower in any deposit, agency, reserve, holdback or other
account of any nature whatsoever maintained by or on behalf of the Borrower with
the Lender at any of its offices, regardless of whether such accounts are
general or special and regardless of whether such accounts are individual or
joint. Any Person purchasing an interest in debt obligations under this
Agreement held by the Lender may exercise all rights of offset with respect to
such interest as fully as if such Person were a holder of debt obligations
hereunder in the amount of such interest.
19. FURTHER ASSURANCES.
If at any time the Lender upon advice of its counsel shall determine
that any further document shall be required to 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 be held or
adjudged to be invalid, 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.
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21. BINDING EFFECT.
All rights of the Lender under the Financing Documents shall insure to
the benefit of its transferees, successors and assigns. All obligations of the
Borrower under the Financing Documents shall bind its heirs, legal
representatives, successors, and assigns.
22. DEFINITIONS.
(a) "Assessment Risk Classification" means the assessment risk
classification assigned to each of the Bank Subsidiaries for purposes of
assessment of premiums by the Federal Deposit Insurance Corporation for deposit
insurance pursuant to 12 C.F.R. ' 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 Lender 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,
he Pledge Agreement, the Guaranty Agreement and all other associated loan and
collateral documents including, without limitation, all guaranties, suretyship
agreements, stock powers, security agreements, security deeds, subordination
agreements, exhibits, schedules, attachments, financing statements, notices,
consents, waivers, opinions, letters, reports, records, assignments, documents,
instruments, information and other writings related thereto, or furnished by
Borrower to the Lender in connection therewith or in connection with any of the
Collateral, and any amendments, extensions, renewals, modifications or
Substitutions thereof or therefor.
(f) "Liabilities" means all indebtedness, liabilities, and obligations
of the Borrower of any nature whatsoever which the Lender may now or hereafter
have, own or hold, and which are now or hereafter owing to the Lender regardless
of however and whenever created, arising or evidenced, whether now, heretofore
or hereafter incurred, whether now, heretofore or hereafter due and payable,
whether alone or together with another or others, whether direct or indirect,
primary or secondary, absolute or contingent, or joint or several, and whether
as principal, maker, endorser, guarantor, surety or otherwise, and also
regardless of whether such Liabilities are from time to time reduced and
thereafter increased or entirely
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extinguished and thereafter reincurred, including without limitation the Note
and any amendments, extensions, renewals, modifications or substitutions thereof
or therefor.
(g) "Note" shall mean the promissory note dated the date hereof in the
principal amount of $2,500,000 and any amendments, extensions, renewals,
modifications, or substitutions thereof or therefor in effect at any particular
time.
(h) "Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political Subdivision thereof.
(i) "Subsidiary" means each of the Bank Subsidiaries and each other
corporation for which the Borrower has the power, directly or indirectly, to
direct its management or policies or to vote 25% or more of any class of its
voting securities.
(j) "Tier 1 Capital" means Tier 1 capital as defined by the capital
maintenance regulations of the primary federal bank regulatory agency of the
relevant Bank Subsidiary.
(k) "Weighted Average Return on Assets" means (i) with respect to the
Borrower, its net income for the previous calendar year plus the amount of any
interest payments by it on the Loan during the previous calendar year 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.
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:
xxxxx.xxx, Inc.
By: /s/ Xxxxx X. Xxxxxxxx, III
-------------------------------------
Xxxxx X. Xxxxxxxx, III
President
Attest: /s/ Xxxx X. Xxxxxx
---------------------------------
Xxxx X. Xxxxxx, Secretary
[CORPORATE SEAL]
I hereby certify that the representation and warranty contained in Section
2(i)(v) of this Agreement is true and correct.
/s/ Xxxx X. Xxxxxx
--------------------------------------------
Xxxx X. Xxxxxx, Secretary
LENDER:
THE BANKERS BANK
By: /s/ Xxxx Xxxxxx
---------------------------------------
Xxxx Xxxxxx
Vice President
[BANK SEAL]
