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EXHIBIT 4.2
CREDIT AGREEMENT
THIS AGREEMENT is entered into as of December 4, 2000 by and between ENB
BANKSHARES, INC., a Texas corporation ("Borrower"), and XXXXX FARGO BANK
MINNESOTA, NATIONAL ASSOCIATION (Bank").
RECITALS
Borrower has requested that Bank extend or continue credit to Borrower
as described below, and Bank has agreed to provide such credit to Borrower on
the terms and conditions contained herein.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, Bank and Borrower hereby agree as follows:
ARTICLE I
CREDIT TERMS
SECTION 1.1. TERM LOAN.
(a) Term Loan. Subject to the terms and conditions of this Agreement,
Bank hereby agrees to make a loan to Borrower in the principal amount of One
Million Six Hundred Fifty Thousand Dollars ($1,650,000.00) ("Term Loan"), the
proceeds of which shall be used by the Borrower's subsidiary, ENB Delaware
Bankshares, Inc. ("ENB Delaware"), to acquire 100% of the outstanding common
voting stock of Eagle National Bank, Dallas, Texas ("Eagle Bank"), a federally
chartered banking institution located in Dallas, Texas, (the "Acquisition"), and
for miscellaneous acquisition expenses related thereto. Borrower's obligation to
repay the Term Loan shall be evidenced by a promissory note substantially in the
form of Exhibit A attached hereto ("Term Note"), all terms of which are
incorporated herein by this reference. Bank's commitment to grant the Term Loan
shall terminate on December 31, 2000.
(b) Repayment. The principal amount of the Term Loan shall be repaid
quarterly on the fourth day of each March, June, September and December in
installments of Forty One Thousand Two Hundred Fifty Dollars ($41,250.00) each,
commencing March 4, 2001, and continuing up to and including September 4, 2010,
with a final installment consisting of all remaining unpaid principal due and
payable in full on December 4, 2010.
(c) Prepayment. Borrower may prepay principal on the Term Loan at any
time, in any amount and without penalty. All prepayments of principal shall be
applied on the most remote principal installment or installments then unpaid.
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SECTION 1.2. INTEREST.
(a) Interest. The outstanding principal balance of the Term Loan shall
bear interest at the rate of interest set forth in the Term Note.
(b) Computation and Payment. Interest shall be computed on the basis of
a 360-day year, actual days elapsed, unless such calculation would result in a
usurious rate, in which case interest shall be computed on the basis of a
365/366-day year, as the case may be, actual days elapsed. Interest shall be
payable at the times and place set forth in each promissory note or other
instrument required hereby.
SECTION 1.3. COLLATERAL.
As security for all indebtedness of Borrower to Bank subject hereto,
Borrower hereby grants to Bank security interests of first priority in all
Borrower's shares of common stock of ENB Delaware and shall cause ENB Delaware
to grant to Bank security interests of first priority in all of its shares of
Eagle Bank. All of the foregoing shall be evidenced by and subject to the terms
of such security agreements, financing statements, deeds of trust and other
documents as Bank shall reasonably require, all in form and substance
satisfactory to Bank. Borrower shall reimburse Bank immediately upon demand for
all costs and expenses incurred by Bank in connection with any of the foregoing
security, including without limitation, filing and recording fees and costs of
appraisals, audits and title insurance.
SECTION 1.4. GUARANTIES. All indebtedness of Borrower to Bank under this
Agreement shall be guaranteed by ENB Delaware in the principal amount of One
Million Six Hundred Fifty Thousand Dollars ($1,650,000.00), as evidenced by and
subject to the terms of a guaranty in form and substance satisfactory to Bank.
The guaranty of ENB Delaware shall be secured as set forth in Section 1.3.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Borrower makes the following representations and warranties to Bank,
which representations and warranties shall survive the execution of this
Agreement and shall continue in full force and effect until the full and final
payment, and satisfaction and discharge, of all obligations of Borrower to Bank
subject to this Agreement.
SECTION 2.1. LEGAL STATUS. Borrower is a corporation, duly organized and
existing and in good standing under the laws of the State of Texas, and ENB
Delaware is a corporation, duly organized and existing and in good standing
under the laws of the State of Delaware, and each is qualified or licensed to do
business (and is in good standing as a foreign corporation, if applicable) in
all jurisdictions in which such qualification or licensing is
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required or in which the failure to so qualify or to be so licensed could have a
material adverse effect on Borrower or ENB Delaware.
SECTION 2.2. AUTHORIZATION AND VALIDITY. This Agreement and each
promissory note, contract, instrument and other document required hereby or at
any time hereafter delivered to Bank in connection herewith (collectively, the
"Loan Documents") have been duly authorized, and upon their execution and
delivery in accordance with the provisions hereof will constitute legal, valid
and binding agreements and obligations of Borrower or the party which executes
the same, enforceable in accordance with their respective terms.
SECTION 2.3. NO VIOLATION. The execution, delivery and performance by
Borrower of each of the Loan Documents do not violate any provision of any law
or regulation, or contravene any provision of the Articles of Incorporation or
By-Laws of Borrower or ENB Delaware, or result in any breach of or default under
any contract, obligation, indenture or other instrument to which Borrower or ENB
Delaware is a party or by which Borrower or ENB Delaware may be bound.
SECTION 2.4. LITIGATION. There are no pending, or to the best of
Borrower's knowledge threatened, actions, claims, investigations, suits or
proceedings by or before any governmental authority, arbitrator, court or
administrative agency which could have a material adverse effect on the
financial condition or operation of Borrower or ENB Delaware other than those
disclosed by Borrower to Bank in writing prior to the date hereof.
SECTION 2.5. CORRECTNESS OF FINANCIAL STATEMENT. The pro-forma financial
statement of Borrower dated June 30, 2000, a true copy of which has been
delivered by Borrower to Bank prior to the date hereof, is complete and correct
and presents fairly the pro-forma financial condition of Borrower. Since the
date of such financial statement there has been no material adverse change in
the financial condition or prospects of Borrower, nor has Borrower mortgaged,
pledged, granted a security interest in or otherwise encumbered any of its
assets or properties except in favor of Bank or as otherwise permitted by Bank
in writing.
SECTION 2.6. INCOME TAX RETURNS. Borrower has no knowledge of any
pending assessments or adjustments of its income tax payable with respect to any
year.
SECTION 2.7. NO SUBORDINATION. There is no agreement, indenture,
contract or instrument to which Borrower is a party or by which Borrower may be
bound that requires the subordination in right of payment of any of Borrower's
obligations subject to this Agreement to any other obligation of Borrower.
SECTION 2.8. PERMITS, FRANCHISES. Borrower possesses, and will hereafter
possess, all permits, consents, approvals, franchises and licenses required and
rights to all trademarks, trade names, patents, and fictitious names, if any,
necessary to enable it to conduct the business in which it is now engaged in
compliance with applicable law.
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SECTION 2.9. ERISA. Borrower is in compliance in all material respects
with all applicable provisions of the Employee Retirement Income Security Act of
1974, as amended or recodified from time to time ("ERISA"); Borrower has not
violated any provision of any defined employee pension benefit plan (as defined
in ERISA) maintained or contributed to by Borrower (each, a "Plan"); no
Reportable Event as defined in ERISA has occurred and is continuing with respect
to any Plan initiated by Borrower; Borrower has met its minimum funding
requirements under ERISA with respect to each Plan; and each Plan will be able
to fulfill its benefit obligations as they come due in accordance with the Plan
documents and under generally accepted accounting principles.
SECTION 2.10. OTHER OBLIGATIONS. Borrower is not in default on any
obligation for borrowed money, any purchase money obligation or any other
material lease, commitment, contract, instrument or obligation.
SECTION 2.11 SUBSIDIARIES. As of the date of this Agreement there are
1,000 shares of issued and outstanding common voting stock in ENB Delaware, of
which Borrower owns 1,000 shares.
SECTION 2.12 ACQUISITION. All authorizations of governmental agencies,
bodies or authorities which are necessary to permit the Acquisition have been
obtained and are in full force and effect, and no further approval, consent,
order or authorization of or designation, registration, declaration or filing
with any governmental authority is required in connection therewith. As of the
date of this Agreement, there are 574,750 shares of common voting stock in Eagle
Bank issued and outstanding, of which ENB Delaware shall, at the closing of the
Term Loan, own 574,750 shares. Eagle Bank (and each bank hereafter acquired by
Borrower) is referred to as a "Subsidiary Bank".
ARTICLE III
CONDITIONS
SECTION 3.1. CONDITIONS OF INITIAL EXTENSION OF CREDIT. The obligation
of Bank to extend any credit contemplated by this Agreement is subject to the
fulfillment to Bank's satisfaction of all of the following conditions:
(a) Approval of Bank Counsel. All legal matters incidental to the
extension of credit by Bank shall be satisfactory to Bank's counsel.
(b) Documentation. Bank shall have received, in form and substance
satisfactory to Bank, each of the following, duly executed:
(i) This Agreement.
(ii) Term Note.
(iii) General Pledge Agreement from Borrower.
(iv) Continuing Guaranty from ENB Delaware.
(v) Third Party Security Agreement from ENB Delaware.
(vi) Stock Certificates and Stock Powers relating to Eagle Bank and
ENB Delaware.
(vii) A Certificate of Authority as to resolutions and incumbency from
Borrower.
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(viii) A Certificate of Authority as to resolutions and incumbency from
ENB Delaware.
(ix) Such other documents as Bank may require under any other Section
of this Agreement.
(c) Financial Condition. There shall have been no material adverse
change, as determined by Bank, in the financial condition or business of
Borrower, ENB Delaware or Eagle Bank, nor any material decline, as determined by
Bank, in the market value of any collateral required hereunder or a substantial
or material portion of the assets of Borrower, ENB Delaware or Eagle Bank.
SECTION 3.2. CONDITIONS OF EACH EXTENSION OF CREDIT. The obligation of
Bank to make each extension of credit requested by Borrower hereunder shall be
subject to the fulfillment to Bank's satisfaction of each of the following
conditions:
(a) Compliance. The representations and warranties contained herein and
in each of the other Loan Documents shall be true on and as of the date of the
signing of this Agreement and on the date of each extension of credit by Bank
pursuant hereto, with the same effect as though such representations and
warranties had been made on and as of each such date, and on each such date, no
Event of Default as defined herein, and no condition, event or act which with
the giving of notice or the passage of time or both would constitute such an
Event of Default, shall have occurred and be continuing or shall exist.
(b) Documentation. Bank shall have received all additional documents
which may be required in connection with such extension of credit.
SECTION 3.3. TERM LOAN. In addition to the conditions precedent set
forth in Sections 3.1 and 3.2, Bank's obligation to grant the Term Loan is
subject to receipt by Bank of copies of all documents relating to the
Acquisition, including without limitation: (i) upon request, all applications
submitted to the Federal Reserve Bank of Dallas and the Federal Deposit
Insurance Corporation, with respect to the Acquisition, and (ii) all written
approvals and other correspondence from the regulatory authorities referred to
in clause (i) of this sentence.
ARTICLE IV
AFFIRMATIVE COVENANTS
Borrower covenants that so long as Bank remains committed to extend
credit to Borrower pursuant hereto, or any liabilities (whether direct or
contingent, liquidated or unliquidated) of Borrower to Bank under any of the
Loan Documents remain outstanding, and until payment in full of all obligations
of Borrower subject hereto, Borrower shall, unless Bank otherwise consents in
writing:
SECTION 4.1. PUNCTUAL PAYMENTS. Punctually pay all principal, interest,
fees or other liabilities due under any of the Loan Documents at the times and
place and in the manner specified therein.
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SECTION 4.2. ACCOUNTING RECORDS. Maintain adequate books and records in
accordance with generally accepted accounting principles consistently applied,
and permit any representative of Bank, at any reasonable time, to inspect, audit
and examine such books and records, to make copies of the same, and to inspect
the properties of Borrower.
SECTION 4.3. FINANCIAL STATEMENTS. Provide to Bank all of the following,
in form and detail satisfactory to Bank:
(a) not later than 90 days after and as of the end of each fiscal year,
an unaudited financial statement of Borrower and ENB Delaware and their
respective subsidiaries, on a consolidated and consolidating basis, prepared by
independent certified public accountants acceptable to the Bank, to include a
balance sheet and income statement;
(b) as soon as available, copies of all financial reports required to be
submitted by: (i) Borrower, or (ii) ENB Delaware (including, but not limited to
a FRY-9SP and FRY-6 as each are defined below) to applicable regulatory
agencies;
(c) contemporaneously with each annual and quarterly financial statement
of Borrower required hereby, a certificate of compliance (the "Compliance
Certificate") executed by the president or chief financial officer of Borrower
(substantially in the form of Exhibit B, or such other form as the Borrower and
Lender may from time to time agree upon in writing), certifying that said
financial statements are accurate and that there exists no Event of Default nor
any condition, act or event which with the giving of notice or the passage of
time or both would constitute an Event of Default, and demonstrating compliance
with the financial covenants contained in this Agreement;
(d) as soon as available, and in any event within 45 days after the end
of each calendar quarter, the complete Consolidated Report of Condition and
Reported Income (FFIEC 034) (the "Call Report") prepared by each Subsidiary Bank
at the end of such calendar quarter in compliance with the requirements of any
federal or state regulatory agency which has authority to examine such
Subsidiary Bank(s), all prepared in accordance with the requirements imposed by
the applicable regulatory authorities and applied on a basis consistent with the
accounting practices reflected in any previous Call Report(s) and similar
statements delivered by such Subsidiary Bank(s) to Bank prior to the date of
this Agreement.
(e) as soon as available, and in any event no later than February 28 and
August 31 of each year, the complete Parent Company Only Financial Statements
for One Bank Holding Companies (FRY-9SP) required to be filed by Borrower
semi-annually with the Federal Reserve Bank (the "Fed") in the applicable
Federal Reserve District.
(F) AS SOON AS AVAILABLE, AND IN ANY EVENT WITHIN 90 DAYS AFTER THE END
OF EACH FISCAL YEAR OF THE BORROWER, THE ANNUAL REPORT OF DOMESTIC BANK HOLDING
COMPANIES (FRY - 6) REQUIRED OF THE BORROWER BY THE FED.
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(g) as soon as available (but without duplication of any other
requirement set forth in this Section 4.3) a photocopy of all reports which are
required by law to be furnished to any regulatory authority having jurisdiction
over any member of Bank or any Subsidiary Bank (including without limitation
Call Reports, but excluding any report which applicable law or regulation
prohibits Borrower or a Subsidiary Bank from furnishing to Bank).
(h) from time to time such other information as Bank may reasonably
request.
SECTION 4.4. COMPLIANCE. Preserve and maintain all licenses, permits,
governmental approvals, rights, privileges and franchises necessary for the
conduct of its business; and comply with the provisions of all documents
pursuant to which Borrower is organized and/or which govern Borrower's continued
existence and with the requirements of all laws, rules, regulations and orders
of any governmental authority applicable to Borrower and/or its business.
SECTION 4.5. INSURANCE. Maintain and keep in force insurance of the
types and in amounts customarily carried in lines of business similar to that of
Borrower, ENB Delaware and the Subsidiary Banks, including but not limited to
fire, extended coverage, public liability, flood, property damage, workers'
compensation, blanket bond, director's and officer's liability, and errors and
omissions, with all such insurance carried with companies and in amounts
satisfactory to Bank, and deliver to Bank from time to time at Bank's request
schedules setting forth all insurance then in effect.
SECTION 4.6. FACILITIES. Keep all properties useful or necessary to
Borrower's business in good repair and condition, and from time to time make
necessary repairs, renewals and replacements thereto so that such properties
shall be fully and efficiently preserved and maintained.
SECTION 4.7. TAXES AND OTHER LIABILITIES. Pay and discharge when due any
and all indebtedness, obligations, assessments and taxes, both real or personal,
including without limitation federal and state income taxes and state and local
property taxes and assessments, except such (a) as Borrower may in good faith
contest or as to which a bona fide dispute may arise, and (b) for which Borrower
has made provision, to Bank's satisfaction, for eventual payment thereof in the
event Borrower is obligated to make such payment.
SECTION 4.8. LITIGATION. Promptly give notice in writing to Bank of any
litigation pending or threatened against Borrower with a claim in excess of
$100,000.
SECTION 4.9. FINANCIAL CONDITION/SUBSIDIARY BANK(S). Cause each
Subsidiary Bank to maintain its financial condition as follows using generally
accepted accounting principles consistently applied and used consistently with
prior practices (except to the extent modified by the definitions herein):
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(a) ROA not less than 0.90% for each fiscal quarter in the fiscal years
ending December 31, 2000 and 2001, and not less than 1.00% for each fiscal
quarter thereafter, with ROA defined as the percentage arrived at by dividing
net income to average total assets.
(b) Ratio of Equity Capital to Total Adjusted Assets not less than (a)
8.0%, determined as of each fiscal quarter end, or (b) the minimum ratio
required by any regulatory agency having authority over the applicable
Subsidiary Bank, whichever is greater, with "Equity Capital" defined as the
aggregate of perpetual preferred stock (and related surplus), common stock,
surplus (excluding all surplus related to perpetual preferred stock),
undivided profits and capital reserves; plus the net unrealized holding gains
(or less the net realized holding losses) on available-for-sale securities;
less goodwill and other disallowed intangible assets, as reported in the
Bank's quarterly Call Reports (as defined in Section 4.3(d) of this
Agreement), and with "Total Adjusted Assets" to be construed in conformity
with the Federal Reserve Board's definition of `adjusted total assets'
referred to by that agency as `average total consolidated assets which
provides for the elimination of intangible assets including goodwill'.
(c) Non-performing assets not greater than ten percent (10.0%) of
Primary Equity Capital, determined as of each fiscal quarter end, with "Primary
Equity Capital" defined as the sum of: (a) allowance for loan and lease losses,
as disclosed in the Call Reports, and (b) Equity Capital as defined above.
(d) Difference of the aggregate book value of the Subsidiary Bank's
securities portfolios, less the aggregate market value of those securities
portfolios classified in the held-to-maturity category, when expressed as an
unrealized securities loss, to exceed fifteen percent (15%) of the Equity
Capital of such Subsidiary Bank, with Equity Capital as defined above.
(e) Allowance for loan and lease losses not less than one hundred
percent (100%) of the total amount of Non-performing Assets, determined as of
each fiscal quarter end, with "Non-performing Assets" defined as the sum of:
(a) all loans classified as past due ninety (90) days or more and still
accruing interest; (b) all loans classified as `non-accrual' and no longer
accruing interest; (c) all loans classified as `restructured loans and
leases'; and (d) all other `non-performing assets', including those classified
as `other real estate owned' and `repossessed property', as reported in the
Subsidiary Bank's quarterly Call Reports.
SECTION 4.10. NOTICE TO BANK. Promptly (but in no event more than five
(5) days after the occurrence of each such event or matter) give written notice
to Bank in reasonable detail of: (a) the occurrence of any Event of Default, or
any condition, event or act which with the giving of notice or the passage of
time or both would constitute an Event of Default; (b) any change in the name or
the organizational structure of Borrower; (c) the occurrence and nature of any
Reportable Event or Prohibited Transaction, each as defined in ERISA, or any
funding deficiency with respect to any Plan; (d) any change in Executive
Management of Borrower or of any Subsidiary Bank. with herein, "Executive
Management" defined as the Board Chairman, President, Senior Vice President or
Cashier; or (e) any definitive agreement to sell any capital stock of Borrower,
ENB Delaware and/or any
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Subsidiary Bank, together with copies of such agreement; provided, however, that
this clause shall not be deemed approval by Bank of any such agreement, and,
provided further that this subparagraph shall not apply to information which
under applicable law or regulation is prohibited from disclosure to Bank.
ARTICLE V
NEGATIVE COVENANTS
Borrower further covenants that so long as Bank remains committed to
extend credit to Borrower pursuant hereto, or any liabilities (whether direct or
contingent, liquidated or unliquidated) of Borrower to Bank under any of the
Loan Documents remain outstanding, and until payment in full of all obligations
of Borrower subject hereto, Borrower will not, and will not cause ENB Delaware
to, without Bank's prior written consent:
SECTION 5.1. USE OF FUNDS. Use any of the proceeds of any credit
extended hereunder except for the purposes stated in Article I hereof.
SECTION 5.2. OTHER INDEBTEDNESS. Create, incur, assume or permit to
exist any indebtedness or liabilities resulting from borrowings, loans or
advances, whether secured or unsecured, matured or unmatured, liquidated or
unliquidated, joint or several, except (a) the liabilities of Borrower to Bank,
(b) the Borrower's debentures issued in an aggregate amount of not more than
$1,350,000, and (c) any other liabilities of Borrower existing as of, and
disclosed to Bank prior to, the date hereof.
SECTION 5.3. MERGER, CONSOLIDATION, TRANSFER OF ASSETS. Merge into or
consolidate with any other entity; make any substantial change in the nature of
Borrower's or ENB Delaware's business as conducted as of the date hereof;
acquire all or substantially all of the assets of any other entity; nor sell,
lease, transfer or otherwise dispose of all or a substantial or material portion
of Borrower's or ENB Delaware's assets except in the ordinary course of its
business.
SECTION 5.4. GUARANTIES. Guarantee or become liable in any way as
surety, endorser (other than as endorser of negotiable instruments for deposit
or collection in the ordinary course of business), accommodation endorser or
otherwise for, nor pledge or hypothecate any assets of Borrower or ENB Delaware
as security for, any liabilities or obligations of any other person or entity,
except any of the foregoing in favor of Bank.
SECTION 5.5. DISTRIBUTIONS. Declare or pay any dividends or
distributions either in cash, stock or any other property to any shareholders in
Borrower or ENB Delaware, nor redeem, retire, repurchase or otherwise acquire
any common stock of Borrower, provided that no such action shall be prohibited
hereunder if, both before and after such action, the Borrower and ENB Delaware
will be in compliance with all covenants contained in this Agreement.
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SECTION 5.6. PLEDGE OF ASSETS. Mortgage, pledge, grant or permit to
exist a security interest in, or lien upon, all or any portion of Borrower's or
ENB Delaware's assets now owned or hereafter acquired, except any of the
foregoing in favor of Bank or which is existing as of, and disclosed to Bank in
writing prior to, the date hereof.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.1. The occurrence of any of the following shall constitute an
"Event of Default" under this Agreement:
(a) Borrower shall fail to pay when due any principal, interest, fees or
other amounts payable under any of the Loan Documents and such default shall
continue for a period of ten (10) days from its occurrence.
(b) Any financial statement or certificate furnished to Bank in
connection with, or any representation or warranty made by Borrower or any other
party under this Agreement or any other Loan Document shall prove to be
incorrect, false or misleading in any material respect when furnished or made.
(c) Any default in the performance of or compliance with any obligation,
agreement or other provision contained herein or in any other Loan Document
(other than those referred to in subsections (a) and (b) above), and with
respect to any such default which by its nature can be cured, such default shall
continue for a period of thirty (30) days from its occurrence.
(d) Any default in the payment or performance of any obligation, or any
defined event of default, under the terms of any contract or instrument (other
than any of the Loan Documents) pursuant to which Borrower or any Subsidiary
Bank or any guarantor hereunder has incurred any debt or other liability to any
person or entity, including Bank.
(e) The filing of a notice of judgment lien against Borrower or any
Subsidiary Bank or any guarantor hereunder; or the recording of any abstract of
judgment against Borrower or any Subsidiary Bank or any guarantor hereunder in
any county in which Borrower or such Subsidiary Bank or such guarantor has an
interest in real property; or the service of a notice of levy and/or of a writ
of attachment or execution, or other like process, against the assets of
Borrower or any Subsidiary Bank or any guarantor hereunder; or the entry of a
judgment against Borrower or any Subsidiary Bank or any guarantor hereunder.
(f) Borrower or any Subsidiary Bank or any guarantor hereunder shall
become insolvent, or shall suffer or consent to or apply for the appointment of
a receiver, trustee, custodian or liquidator of itself or any of its property,
or shall generally fail to pay its debts as they become due, or shall make a
general assignment for the benefit of creditors; Borrower or any Subsidiary Bank
or any guarantor hereunder shall file a voluntary petition in bankruptcy, or
seeking reorganization, in order to effect a plan or other arrangement with
creditors or any
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other relief under the Bankruptcy Reform Act, Title 11 of the United States
Code, as amended or recodified from time to time ("Bankruptcy Code"), or under
any state or federal law granting relief to debtors, whether now or hereafter in
effect; or any involuntary petition or proceeding pursuant to the Bankruptcy
Code or any other applicable state or federal law relating to bankruptcy,
reorganization or other relief for debtors is filed or commenced against
Borrower or any Subsidiary Bank or any guarantor hereunder, or Borrower or any
such Subsidiary Bank or any such guarantor shall file an answer admitting the
jurisdiction of the court and the material allegations of any involuntary
petition; or Borrower or any such Subsidiary Bank or any such guarantor shall be
adjudicated a bankrupt, or an order for relief shall be entered against Borrower
or any such Subsidiary Bank or any such guarantor by any court of competent
jurisdiction under the Bankruptcy Code or any other applicable state or federal
law relating to bankruptcy, reorganization or other relief for debtors.
(g) The dissolution or liquidation of Borrower or any Subsidiary Bank or
any guarantor hereunder; or Borrower or any such Subsidiary Bank or any such
guarantor, or any of their directors, stockholders or members, shall take action
seeking to effect the dissolution or liquidation of Borrower or such Subsidiary
Bank or such guarantor.
(h) The issuance or proposed issuance against Borrower, or any
affiliate of Borrower (including without limitation, ENB Delaware or any
Subsidiary Bank) of any informal or formal administrative action, temporary or
permanent, by any federal or state regulatory agency having jurisdiction or
control over Borrower or such affiliate, such action taking the form of, but not
limited to: (i) any informal or formal directive citing conditions or activities
deemed to be unsafe or unsound or breaches of fiduciary duty or law or
regulation; (ii) a memorandum of understanding; (iii) a cease and desist order;
(iv) the termination of insurance coverage of customer deposits by the Federal
Deposit Insurance Corporation; (v) the suspension or removal of an officer or
director, or the prohibition of participation by any others in the business
affairs of Borrower or such affiliate; (vi) capital maintenance agreement; or
(vii) any other regulatory action, agreement or understanding with respect to
Borrower or such affiliate.
SECTION 6.2. REMEDIES. Upon the occurrence of any Event of Default: (a)
all principal and accrued and unpaid interest outstanding under each of the Loan
Documents, any term thereof to the contrary notwithstanding, shall at Bank's
option and without notice become immediately due and payable without
presentment, demand, or any notices of any kind, including without limitation
notice of nonperformance, notice of protest, protest, notice of dishonor, notice
of intention to accelerate or notice of acceleration, all of which are hereby
expressly waived by Borrower; (b) the obligation, if any, of Bank to extend any
further credit under any of the Loan Documents shall immediately cease and
terminate; and (c) Bank shall have all rights, powers and remedies available
under each of the Loan Documents, or accorded by law, including without
limitation the right to resort to any or all security for any credit subject
hereto and to exercise any or all of the rights of a beneficiary or secured
party pursuant to applicable law. All rights, powers and remedies of Bank may be
exercised at any time by Bank and from time to time after the occurrence of an
Event of Default, are cumulative and
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not exclusive, and shall be in addition to any other rights, powers or remedies
provided by law or equity.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1. NO WAIVER. No delay, failure or discontinuance of Bank in
exercising any right, power or remedy under any of the Loan Documents shall
affect or operate as a waiver of such right, power or remedy; nor shall any
single or partial exercise of any such right, power or remedy preclude, waive or
otherwise affect any other or further exercise thereof or the exercise of any
other right, power or remedy. Any waiver, permit, consent or approval of any
kind by Bank of any breach of or default under any of the Loan Documents must be
in writing and shall be effective only to the extent set forth in such writing.
SECTION 7.2. NOTICES. All notices, requests and demands which any party
is required or may desire to give to any other party under any provision of this
Agreement must be in writing delivered to each party at the following address:
BORROWER: ENB BANKSHARES, INC.
0000 Xxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Board Chairman
BANK: XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION
Sixth & Marquette
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxxx Xxxxx
or to such other address as any party may designate by written notice to all
other parties. Each such notice, request and demand shall be deemed given or
made as follows: (a) if sent by hand delivery, upon delivery; (b) if sent by
mail, upon the earlier of the date of receipt or three (3) days after deposit in
the U.S. mail, first class and postage prepaid; and (c) if sent by telecopy,
upon receipt.
SECTION 7.3. COSTS, EXPENSES AND ATTORNEYS' FEES. Borrower shall pay to
Bank immediately upon demand the full amount of all payments, advances, charges,
costs and expenses, including reasonable attorneys' fees (to include outside
counsel fees and all allocated costs of Bank's in-house counsel to the extent
permissible), expended or incurred by Bank in connection with (a) the
negotiation and preparation of this Agreement and the other Loan Documents,
Bank's continued administration hereof and thereof, and the preparation of any
amendments and waivers hereto and thereto, (b) the enforcement of Bank's rights
and/or the collection of any amounts which become due to Bank under any of the
Loan Documents, and (c) the prosecution or defense of any action in any way
related to any of the Loan
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Documents, including without limitation, any action for declaratory relief,
whether incurred at the trial or appellate level, in an arbitration proceeding
or otherwise, and including any of the foregoing incurred in connection with any
bankruptcy proceeding (including without limitation, any adversary proceeding,
contested matter or motion brought by Bank or any other person) relating to any
Borrower or any other person or entity.
SECTION 7.4. SUCCESSORS, ASSIGNMENT. This Agreement shall be binding
upon and inure to the benefit of the heirs, executors, administrators, legal
representatives, successors and assigns of the parties; provided however, that
Borrower may not assign or transfer its interest hereunder without Bank's prior
written consent. Bank reserves the right to sell, assign, transfer, negotiate or
grant participations in all or any part of, or any interest in, Bank's rights
and benefits under each of the Loan Documents. In connection therewith, Bank may
disclose all documents and information which Bank now has or may hereafter
acquire relating to any credit subject hereto, Borrower or its business, any
guarantor hereunder or the business of such guarantor, or any collateral
required hereunder.
SECTION 7.5. AMENDMENT. This Agreement may be amended or modified only
in writing signed by each party hereto.
SECTION 7.6. NO THIRD PARTY BENEFICIARIES. This Agreement is made and
entered into for the sole protection and benefit of the parties hereto and their
respective permitted successors and assigns, and no other person or entity shall
be a third party beneficiary of, or have any direct or indirect cause of action
or claim in connection with, this Agreement or any other of the Loan Documents
to which it is not a party.
SECTION 7.7. TIME. Time is of the essence of each and every provision of
this Agreement and each other of the Loan Documents.
SECTION 7.8. SEVERABILITY OF PROVISIONS. If any provision of this
Agreement shall be prohibited by or invalid under applicable law, such provision
shall be ineffective only to the extent of such prohibition or invalidity
without invalidating the remainder of such provision or any remaining provisions
of this Agreement.
SECTION 7.9. COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which when executed and delivered shall be deemed to be
an original, and all of which when taken together shall constitute one and the
same Agreement.
SECTION 7.10. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Texas.
SECTION 7.11. SAVINGS CLAUSE. It is the intention of the parties to
comply strictly with applicable usury laws. Accordingly, notwithstanding any
provision to the contrary in the Loan Documents, in no event shall any Loan
Documents require the payment or permit the payment, taking, reserving,
receiving, collection or charging of any sums constituting interest under
applicable laws that exceed the maximum amount permitted by such
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laws, as the same may be amended or modified from time to time (the "Maximum
Rate"). If any such excess interest is called for, contracted for, charged,
taken, reserved or received in connection with any Loan Documents, or in any
communication by or any other person to Borrower or any other person, or in the
event that all or part of the principal or interest hereof or thereof shall be
prepaid or accelerated, so that under any of such circumstances or under any
other circumstance whatsoever the amount of interest contracted for, charged,
taken, reserved or received on the amount of principal actually outstanding from
time to time under the Loan Documents shall exceed the Maximum Rate, then in
such event it is agreed that: (i) the provisions of this paragraph shall govern
and control; (ii) neither Borrower nor any other person or entity now or
hereafter liable for the payment of any Loan Documents shall be obligated to pay
the amount of such interest to the extent it is in excess of the Maximum Rate;
(iii) any such excess interest which is or has been received by Bank,
notwithstanding this paragraph, shall be credited against the then unpaid
principal balance hereof or thereof, or if any of the Loan Documents has been or
would be paid in full by such credit, refunded to Borrower; and (iv) the
provisions of each of the Loan Documents, and any other communication to
Borrower, shall immediately be deemed reformed and such excess interest reduced,
without the necessity of executing any other document, to the Maximum Rate. The
right to accelerate the maturity of the Loan Documents does not include the
right to accelerate, collect or charge unearned interest, but only such interest
that has otherwise accrued as of the date of acceleration. Without limiting the
foregoing, all calculations of the rate of interest contracted for, charged,
taken, reserved or received in connection with any of the Loan Documents which
are made for the purpose of determining whether such rate exceeds the Maximum
Rate shall be made to the extent permitted by applicable laws by amortizing,
prorating, allocating and spreading during the period of the full term of such
Loan Documents, including all prior and subsequent renewals and extensions
hereof or thereof, all interest at any time contracted for, charged, taken,
reserved or received by Bank. The terms of this paragraph shall be deemed to be
incorporated into each of the other Loan Documents.
To the extent that either Chapter 303 or 306, or both, of the Texas
Finance Code apply in determining the Maximum Rate, Bank hereby elects to
determine the applicable rate ceiling by using the weekly ceiling from time to
time in effect, subject to Bank's right subsequently to change such method in
accordance with applicable law, as the same may be amended or modified from time
to time.
SECTION 7.12. RIGHT OF SETOFF; DEPOSIT ACCOUNTS. Upon and after the
occurrence of an Event of Default, (a) Borrower hereby authorizes Bank, at any
time and from time to time, without notice, which is hereby expressly waived by
each Borrower, and whether or not Bank shall have declared any credit subject
hereto to be due and payable in accordance with the terms hereof, to set off
against, and to appropriate and apply to the payment of, Borrower's obligations
and liabilities under the Loan Documents (whether matured or unmatured, fixed or
contingent, liquidated or unliquidated), any and all amounts owing by Bank to
Borrower (whether payable in U.S. dollars or any other currency, whether matured
or unmatured, and in the case of deposits, whether general or special (except
trust and escrow accounts), time or demand and however evidenced), and (b)
pending any such action, to the extent necessary, to hold such amounts as
collateral to secure such obligations and
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liabilities and to return as unpaid for insufficient funds any and all checks
and other items drawn against any deposits so held as Bank, in its sole
discretion, may elect. Borrower hereby grants to Bank a security interest in all
deposits and accounts maintained with Bank and with any other financial
institution to secure the payment of all obligations and liabilities of Borrower
to Bank under the Loan Documents.
SECTION 7.13. BUSINESS PURPOSE. Borrower represents and warrants that
each credit subject hereto is for a business, commercial, investment,
agricultural or other similar purpose and not primarily for a personal, family
or household use.
SECTION 7.14. ARBITRATION.
(a) Arbitration. Upon the demand of any party, any Dispute shall be
resolved by binding arbitration in accordance with the terms of this Agreement.
A "Dispute" shall mean any action, dispute, claim or controversy of any kind,
whether in contract or tort, statutory or common law, legal or equitable, now
existing or hereafter arising under or in connection with, or in any way
pertaining to, any of the Loan Documents, or any past, present or future
extensions of credit and other activities, transactions or obligations of any
kind related directly or indirectly to any of the Loan Documents, including
without limitation, any of the foregoing arising in connection with the exercise
of any self-help, ancillary or other remedies pursuant to any of the Loan
Documents. Any party may by summary proceedings bring an action in court to
compel arbitration of a Dispute. Any party who fails or refuses to submit to
arbitration following a lawful demand by any other party shall bear all costs
and expenses incurred by such other party in compelling arbitration of any
Dispute.
(b) Governing Rules. Arbitration proceedings shall be administered by
the American Arbitration Association ("AAA") or such other administrator as the
parties shall mutually agree upon in accordance with the AAA Commercial
Arbitration Rules. All Disputes submitted to arbitration shall be resolved in
accordance with the Federal Arbitration Act (Title 9 of the United States Code),
notwithstanding any conflicting choice of law provision in any of the Loan
Documents. The arbitration shall be conducted at a location in Texas selected by
the AAA or other administrator. If there is any inconsistency between the terms
hereof and any such rules, the terms and procedures set forth herein shall
control. All statutes of limitation applicable to any Dispute shall apply to any
arbitration proceeding. All discovery activities shall be expressly limited to
matters directly relevant to the Dispute being arbitrated. Judgment upon any
award rendered in an arbitration may be entered in any court having
jurisdiction; provided however, that nothing contained herein shall be deemed to
be a waiver by any party that is a bank of the protections afforded to it under
12 U.S.C. Section 91 or any similar applicable state law.
(c) No Waiver; Provisional Remedies, Self-Help and Foreclosure. No
provision hereof shall limit the right of any party to exercise self-help
remedies such as setoff, foreclosure against or sale of any real or personal
property collateral or security, or to obtain provisional or ancillary remedies,
including without limitation injunctive relief, sequestration, attachment,
garnishment or the appointment of a receiver, from a court of competent
16
jurisdiction before, after or during the pendency of any arbitration or other
proceeding. The exercise of any such remedy shall not waive the right of any
party to compel arbitration hereunder.
(d) Arbitrator Qualifications and Powers; Awards. Arbitrators must be
active members of the Texas State Bar, with expertise in the substantive laws
applicable to the subject matter of the Dispute. Arbitrators are empowered to
resolve Disputes by summary rulings in response to motions filed prior to the
final arbitration hearing. Arbitrators (i) shall resolve all Disputes in
accordance with the substantive law of the State of Texas, (ii) may grant any
remedy or relief that a court of the State of Texas could order or grant within
the scope hereof and such ancillary relief as is necessary to make effective any
award, and (iii) shall have the power to award recovery of all costs and fees,
to impose sanctions and to take such other actions as they deem necessary to the
same extent a judge could pursuant to the Federal Rules of Civil Procedure, the
Texas Rules of Civil Procedure or other applicable law. Any Dispute in which the
amount in controversy is $5,000,000 or less shall be decided by a single
arbitrator who shall not render an award of greater than $5,000,000 (including
damages, costs, fees and expenses). By submission to a single arbitrator, each
party expressly waives any right or claim to recover more than $5,000,000. Any
Dispute in which the amount in controversy exceeds $5,000,000 shall be decided
by majority vote of a panel of three arbitrators; provided however, that all
three arbitrators must actively participate in all hearings and deliberations.
(e) Miscellaneous. To the maximum extent practicable, the AAA, the
arbitrators and the parties shall take all action required to conclude any
arbitration proceeding within 180 days of the filing of the Dispute with the
AAA. No arbitrator or other party to an arbitration proceeding may disclose the
existence, content or results thereof, except for disclosures of information by
a party required in the ordinary course of its business, by applicable law or
regulation, or to the extent necessary to exercise any judicial review rights
set forth herein. If more than one agreement for arbitration by or between the
parties potentially applies to a Dispute, the arbitration provision most
directly related to the Loan Documents or the subject matter of the Dispute
shall control. This arbitration provision shall survive termination, amendment
or expiration of any of the Loan Documents or any relationship between the
parties.
NOTICE: THIS DOCUMENT AND ALL OTHER DOCUMENTS RELATING TO THE INDEBTEDNESS
CONSTITUTE A WRITTEN LOAN AGREEMENT WHICH REPRESENTS THE FINAL AGREEMENT BETWEEN
THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES RELATING TO THE INDEBTEDNESS.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first written above.
ENB BANKSHARES, INC. XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION
By: _________________________ By: _______________________
Title: ________________________ Title: ______________________
