EXHIBIT 10.2
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LOAN AGREEMENT
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THIS AGREEMENT is made and entered into as of the 10th day of December,
1993, by and between XXXXXXX BANK OF SOUTHWEST FLORIDA (the "Lender"), a Florida
State banking corporation, and BANK OF COLORADO HOLDING COMPANY, a Colorado
corporation (the "Borrower").
RECITALS
X.X. Xxxxxxx and Xxxxx X. Xxxx (the "Original Borrowers") and the Lender
entered into a certain Loan Agreement dated as of March 10, 1989 (as
subsequently amended from time to time, the "Original Loan Agreement"), pursuant
to which the Lender agreed to lend $2,000,000 to the Original Borrowers to
finance the acquisition by the Original Borrowers of substantially all of the
issued and outstanding capital stock of Vail National Bank, a banking
association organized under the laws of the United States ("VNB") .
The Original Borrowers and other shareholders of VNB (the "Shareholders")
wish to reorganize VNB as a wholly-owned subsidiary of the Borrower (the
"Reorganization"), and the Federal Reserve Board issued its approval of the
Reorganization on November 2, 1993.
The Borrower wishes to obtain from the Lender a term loan in the principal
amount of $1,950,000 to purchase the shares of VNB's capital stock currently
held by the Shareholders and otherwise finance the Reorganization, and the
Lender, on the terms and conditions hereinafter set forth, is willing to lend
such sum to the Borrower.
NOW THEREFORE, for and in consideration of these premises and the mutual
agreements, warranties and representations herein made, the Lender and the
Borrower agree as follows:
ARTICLE I - DEFINITIONS
1.1 "Affiliate" means any Person directly or indirectly controlling,
controlled by, or under common control with the Borrower.
1.2. "Borrower" means Bank of Colorado Holding Company, a Colorado
corporation.
1.3. "Capital" means all primary capital or all primary components of
capital, including loan loss reserve, as defined from time to time by VNB's
primary federal regulator (as the case may be).
1.4. "Collateral" means and includes all property assigned or pledged to
the Lender or in which the Lender has been granted a security interest or to
which the Lender has been granted security title under this Agreement or the
other Financing Documents and the proceeds thereof.
1.5. "Financing Documents" means and includes this Agreement, the Note,
the Pledge Agreement, and any amendments, extensions, renewals, modifications or
substitutions thereof or therefor.
1.6. "Lender" means Xxxxxxx Bank of Southwest Florida, a Florida State
banking corporation, and shall include transferees, assignees and successors of
the Lender.
1.7. "Liabilities" means all indebtedness, liabilities, and obligations
of the Borrower of any nature whatsoever which arise under or are evidenced by
this Agreement, the Note or any of the other Financing Documents and 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 extinguished
and thereafter reincurred, including without limitation the Note and any
extensions, renewals, modifications or substitutions thereof or therefor.
1.8. Loan" shall have the meaning set forth in Section 2.1 hereof.
1.9. "Note" shall have the meaning set forth in Section 2.2 hereof.
1.10. "Original Loan Agreement" shall have the meaning set forth in the
first Recital paragraph hereof.
1.11. "Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
1.12. "Pledge Agreement" shall have the meaning set forth in Section 2.S
hereof.
1.13. "Reorganization" shall have the meaning set forth in the second
Recital paragraph of this Agreement.
1.14. "Shareholders" shall have the meaning set forth in the second
Recital paragraph of this Agreement.
1.15. "VNB Stock" means all of the issued and outstanding capital stock
of VNB after the Reorganization.
1.16. "VNB" means Vail National Bank, a banking association organized
under the laws of the United States.
1.17. 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.
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1.18. 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 permitted assigns.
ARTICLE II - THE LOAN
2.1. Subject to the terms and conditions of this Agreement, the Lender
agrees to lend to the Borrower the principal sum of $1,950,000 (the "Loan").
2.2. The Loan shall be evidenced by a promissory note, in form and
substance satisfactory to the Lender, duly executed and delivered by the
Borrower in favor of the Lender. Said promissory note or any extensions,
renewals, modifications or substitutions thereof or therefor which is in effect
at any particular time is hereinafter called the "Note." The Note shall provide
that:
(a) The Loan shall bear interest at a rate per annum, calculated on
the basis of a 360-day year and actual days elapsed, equal to the Prime Rate
Basis (as defined in the Note) with a minimum interest rate of seven percent
(7%) per annum and a maximum interest rate of thirteen percent (13%) per annum.
(b) Principal shall be payable in quarterly installments of $50,000
each, together with all accrued interest, on March 31, June 30, September 30,
and December 31 of each year commencing on March 31, 1994, and with a final
payment of all principal, interest, and all other Liabilities then outstanding
due on December 10, 1998.
(c) Upon any sale or other disposition of the VNB Stock or
substantially all of the assets of the Borrower or VNB, in either case which
requires the filing of (i) a notice under the Change of Bank Control Act (as
amended from time to time, or any successor thereto) or (ii) an application
under the Federal Bank Holding Company Act (as amended from time to time, or any
successor thereto), the Borrower shall, immediately upon its receipt of the
proceeds of such sale or other disposition, cause the Liabilities to be paid in
full to the Lender.
(d) No penalty or premium shall be imposed for the prepayment in
whole or in part of the principal balance of the Loan. Each such prepayment
shall be applied first to accrued interest on the date of prepayment and
thereafter to principal in inverse order of maturity.
In the event of conflict between the terms of this Section 2.2 and those of the
Note, the Note shall control.
2.3. The proceeds of the Loan shall be used by the Borrower to purchase
the shares of capital stock of VNB currently held by the Shareholders and
otherwise finance the Reorganization.
2.4. The Borrower agrees to pay to the Lender a one-time up-front fee for
the Lender's making its commitment hereunder available to the Borrower, equal to
one percent (1%) of the original loan amount, or $19,500, $5,000 of which has
previously been paid to the Lender, leaving
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a balance of $14,500 which shall be due and payable at closing and shall be
fully earned when due and non-refundable when paid.
2.5. To secure the repayment of the Loan, the Borrower shall execute and
deliver to the Lender a pledge agreement (the "Pledge Agreement") in form and
substance satisfactory to the Lender and pursuant to which the Borrower shall
pledge to the Lender, and grant to the Lender a security interest in, the VNB
Stock. On the day the Loan is made, the Borrower shall deliver to the Lender
the certificate(s) representing the VNB Stock together with stock transfer
powers for same, in form and substance satisfactory to the Lender. If, at any
time prior to repayment in full of the Loan, the Borrower acquires any
additional shares of the capital stock of VNB, or any warrants, options,
subscriptions or other rights to acquire additional shares of the capital stock
of VNB, the Borrower shall promptly deliver certificates evidencing such shares
of capital stock or any documents evidencing such warrants, options,
subscriptions or other rights to acquire additional shares of capital stock of
VNB to the Lender and such additional shares or other documents shall be added
to the collateral already pledged to the Lender under the Pledge Agreement, and
the Lender shall have a security interest in such additional shares or other
documents.
2.6. In connection with the Loan, the Borrower also will deliver to the
Lender other agreements or instruments specified in Section 6.4 hereof and such
other documents as may be reasonably required by the Lender.
ARTICLE III - REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lender that each of the
following is true, correct, complete and accurate in all respects:
3.1. The Borrower is a Colorado corporation duly organized, validly
existing and in good standing under the laws of the State of Colorado. VNB is a
banking association duly organized, validly existing and in good standing under
the laws of the United States having the Borrower as its majority shareholder.
Each of the Borrower and VNB 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.
3.2. The quarterly financial statements of VNB dated September 30, 1993,
which have been delivered to the Lender, present fairly the financial condition
of VNB as of the date indicated therein.
3.3. Execution, delivery and performance by the Borrower of each and every
one of the Financing Documents do not violate any provision of law or
regulations and will not result in a breach of or constitute a default under any
agreement, indenture or other instrument to which the Borrower is a party or by
which the Borrower is bound.
3.4. Except for the security interest created by the Pledge Agreement,
the Borrower owns the VNB Stock free and clear of all liens, charges and
encumbrances. The VNB Stock is
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duly issued, fully paid and non-assessable, and the Borrower has the
unencumbered right to pledge the VNB Stock.
3.5. There is no claim, action, suit, arbitration, investigation,
condemnation or other proceeding at law or in equity, or by or before any
federal, state, local or other governmental agency, or by or before any other
agency or arbitrator, nor is there any judgment, order, writ, injunction or
decree of any court pending, anticipated or threatened against the Borrower or
VNB or against any properties or assets which might have a material adverse
effect on the Borrower's or VNB's properties or assets, or which might call into
question the validity or enforceability of any of the Financing Documents, or
which might involve the alleged violation by the Borrower or VNB of any federal,
state, local or other law, rule or regulation.
3.6. No consent, approval, order, authorization, designation,
registration, declaration, or filing with or of any federal, state, local, or
other governmental authority or public body on the part of the Borrower or VNB
is required in connection with the Borrower's execution, delivery or performance
of any of the Financing Documents or, if required, all such prerequisites have
been, or as of the date the Loan is advanced will be, fully satisfied. Without
limiting the generality of the foregoing, the Borrower has (or, as of the date
the Loan is advanced, the Borrower will have) received all authorizations,
consents or approvals of all governmental agencies, authorities or bodies
required under applicable federal or state law for its acquisition of the VNB
Stock, and a true and correct copy of each such authorization, consent and
approval has been or will be delivered by the Borrower to the Lender prior to
the Loan's funding, and all required waiting periods with respect thereto have
(or, as of the date the Loan is advanced, will have) expired without comment or
objection. All conditions or requirements (if any) imposed by each governmental
agency, authority or body in connection with its approval have been (or, as of
the date the Loan is advanced, will have been) met.
3.7. The Borrower is not engaged principally or as one of its important
activities in the business of extending credit for the purpose of purchasing or
carrying, and the Borrower does not own or presently intend to acquire, any
"margin security" or "margin stock" as defined in Regulations G, T, U, and X (12
C.F.R. Parts 221 and 224) of the Board of Governors of the Federal Reserve
System (herein called "margin stock"). None of the proceeds of the Loan will be
used, directly or indirectly, for the purpose of purchasing or carrying any
margin stock or for the purpose of reducing or retiring any indebtedness which
was originally incurred to purchase or carry margin stock or for any other
purpose which might constitute this transaction a "purpose credit" within the
meaning of said Regulations G, T, U, and X. Neither the Borrower nor any bank
acting on its behalf has taken or will take any action which might cause this
Agreement or the Note to violate Regulation G, T, U, or X or any other
regulation of the Board of Governors of the Federal Reserve System or to violate
the Securities Exchange Act of 1934, in each case as now in effect or as the
same may hereafter be in effect. Neither the making of the Loan nor the use of
proceeds thereof will violate, or be inconsistent with, the provisions of
Regulation G, T, U, or X of said Board of Governors.
ARTICLE IV - AFFIRMATIVE COVENANTS
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For so long as this Agreement is in effect, and unless the Lender expressly
consents in writing otherwise or to the contrary, the Borrower hereby expressly
covenants and agrees as follows:
4.1. Upon request of the Lender, the Borrower shall, and shall cause VNB
to, make available its officers and employees to the Lender to discuss the
financial affairs of the Borrower and VNB, as applicable, at such reasonable
times and intervals as the Lender may request, and the Borrower shall promptly
confirm or furnish in reasonable detail whatever information relative to the
Borrower and VNB as the Lender or the Lender's authorized representative,
auditor or counsel may request.
4.2. The Borrower shall promptly furnish to the Lender: (1) Not later
than ninety (90) days after and as of the end of each fiscal year, audited
consolidated and consolidating financial statements of the Borrower and VNB, to
include a balance sheet and statement of income and stockholders' equity, all in
reasonable detail, prepared in accordance with generally accepted accounting
principles and certified by an independent accounting firm; (2) Not later than
thirty (30) days after and as of the end of each of the first three (3) quarters
of each fiscal year, unaudited consolidated and consolidating financial
statements of the Borrower and VNB, to include a balance sheet and statement of
income and stockholders' equity, all in reasonable detail, prepared in
accordance with generally accepted accounting principles (subject to changes
resulting from year-end adjustments), and certified by the chief financial
officer of each of the Borrower and VNB; (3) Not later than thirty (30) days
after and as of the end of each of the first three (3) quarters of each year,
copies of the Report of Condition and the Report of Income and Dividends of VNB
as filed by it with the Federal Deposit Insurance Corporation or the Office of
the Comptroller of the Currency; (4) Not later than thirty (30) days after and
as of the end of each fiscal quarter a certificate signed by an officer of the
Borrower and VNB as to compliance by the Borrower and VNB with the covenants
contained in Article IV and Article V of this Agreement and setting forth the
calculations necessary to demonstrate compliance with Sections 5.1, 5.2 and 5.3
hereof as of the end of the applicable fiscal quarter; (5) Immediately after the
occurrence of a material adverse change in the business, properties, condition,
management or prospects, financial or otherwise, of the Borrower or VNB, a
statement of the Borrower's or VNB's chief executive officer or chief financial
officer setting forth in reasonable detail such change and the action which the
Borrower and VNB propose to take with respect thereto; (6) From time to time
upon request of the Lender, such other information relating to the operations,
business, condition, management, properties and prospects of the Borrower and
VNB as the Lender may request; and (7) Notice of any supervisory or enforcement
action brought against the Borrower or VNB.
4.3. The Borrower shall, and shall cause VNB to, punctually pay and
discharge all taxes, assessments and governmental charges or levies imposed upon
it or upon its income or upon any of its property, as well as all claims of any
kind which, if unpaid, might by law become a lien or charge upon its property,
except taxes, assessments, charges, levies or claims which are in good faith
being timely litigated or otherwise properly contested by the Borrower or VNB
and as to which the contestant has established an adequate reserve on its books.
4.4. The Borrower shall, and shall cause VNB to, comply in all material
respects with the requirements of all provisions of constitutions, statutes,
rules, regulations and orders of
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governmental bodies or regulatory agencies applicable to it, and all orders and
decrees of all courts and arbitrators in proceedings or actions to which it is a
party or by which it is bound.
4.5. The Borrower shall cause VNB to maintain an adequate reserve for
loan losses that at all times shall be maintained at a level satisfactory to
VNB's primary regulator.
4.6. The Borrower shall cause VNB to insure that the financial and
managerial condition of VNB shall be maintained in compliance with all
regulatory standards and guidelines such that VNB's overall CAMEL rating shall
not be worse than 3.
4.7. The Borrower shall cause VNB's compensation programs, including
benefit and perquisite plans, director's fees, retainers and other compensation,
to be maintained at prudent levels, comparable to peer groups in the market
area.
4.8. The Borrower shall furnish to the Lender, not later than February
28, 1994, pro forma financial statements of the Borrower, which pro forma
financial statements shall be in form and substance reasonably satisfactory to
the Lender.
ARTICLE V - NEGATIVE COVENANTS
For so long as this Agreement is in effect, and unless the Lender expressly
consents in writing otherwise or to the contrary, the Borrower hereby expressly
covenants and agrees to the following negative covenants:
5.1. The Borrower shall not at any time permit the ratio of VNB's Capital
to total assets (the "Capital Ratio") during the term of this Agreement to be
less than the greater of (a) seven percent (7%) or (b) the minimum Capital Ratio
then required by VNB's primary federal regulator.
5.2. The Borrower shall not permit the Debt Service Coverage Ratio to be
less than 1.25:1.00 as of the end of each of its fiscal quarters. "Debt Service
Coverage Ratio" shall mean the ratio obtained by dividing (a) the amount of the
net income of VNB available under state or federal laws or regulations for the
payment of dividends to the shareholders of VNB during the Period plus
depreciation and amortization for such Period, by (b) the aggregate of all
principal and interest paid or due by the Borrower during the Period with
respect to indebtedness for borrowed money. "Period" shall mean the four fiscal
quarter period ending on the last day of the fiscal quarter of the Borrower
being tested; provided, however, that with respect to the first three fiscal
quarters after the date hereof, "Period" shall mean the period beginning on the
date hereof and ending on the last day of the fiscal quarter of the Borrower
being tested.
5.3. The Borrower shall not permit VNB to have a total shareholders
equity at any time of less than $5,400,000.
5.4. The Borrower shall not, and shall not permit VNB to, incur, create,
assume or permit to exist any indebtedness or liability for borrowed money other
than to the Lender or the Borrower, except that this covenant shall not apply to
deposits, repurchase agreements and other banking transactions entered into by
VNB in the ordinary course of its businesses.
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5.5. The Borrower shall not, and shall not permit VNB to, in any manner,
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 except in connection with the depositing of
checks in the normal and ordinary course of business.
5.6. The Borrower shall not, and shall not permit VNB to, (a) transfer all
or substantially all of its assets to, consolidate with or merge with any other
Person, (b) acquire all or substantially all of the properties or capital stock
of any other Person, (c) create any subsidiary or enter into any partnership or
joint venture, or (d) change or amend VNB' s articles of association in any way
which would change the voting rights of the VNB Stock or result in the VNB Stock
constituting less than 100% (except as otherwise provided in Section 5.7 hereof)
of the total outstanding shares of VNB' s capital stock which has voting power
under general circumstances; provided, however, that VNB may open and operate
branch offices.
5.7. The Borrower shall not and shall not permit VNB (either directly or
indirectly by the issuance of rights or options for, or securities convertible
into, such shares) to issue, sell or otherwise dispose of any shares of any
class of its stock except that (a) VNB may issue or sell shares of its stock (i)
to the Borrower and (ii) to full-time employees as part of a bona fide stock
option plan, and (b) the Borrower may issue or sell shares of its stock to Xxxx
Xxxxxx and Xxxxxxx Xxxxx such that the aggregate number of shares held by such
Persons does not exceed 1700 shares, or 1.3% of the outstanding shares, of the
Borrower's capital stock.
5.8. The Borrower shall not, and shall not permit VNB to, incur or suffer
to exist any material accumulated funding deficiency within the meaning of the
Employee Retirement Income Security Act of 1974, as such Act may be amended
("ERISA"), or incur any material liability to the Pension Benefit Guaranty
Corporation established under ERISA (or any successor thereto under ERISA).
5.9. The Borrower shall not permit VNB to pay any dividends, make any
distributions, pay any management fees or otherwise transfer any assets to the
Borrower or any other shareholders; provided that, subject to the other
provisions hereof, VNB shall be entitled to distribute to the Borrower (a) to
the extent permitted by applicable regulations or laws, dividends or other
distributions not in excess of VNB's earnings, and (b) special dividends to
service or prepay the indebtedness to the Lender provided for herein.
5.10. The Borrower shall not permit VNB to invest in any entity which
engages in nonbanking activities.
5.11. Neither the Borrower nor VNB shall at any time engage in any
transaction with an Affiliate, nor make an assignment or other transfer of any
of its properties or assets to any Affiliate, except for the provision of
routine services and ordinary banking transactions other than loans, all of
which shall be on terms less advantageous to the Borrower or VNB than would be
the case if such transaction had been affected with a non-Affiliate.
ARTICLE VI - CONDITIONS PRECEDENT
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All of the Lender's obligations under this Agreement, including without
limitation any obligation to make the Loan to the Borrower, are subject to the
prior fulfillment of each of the following conditions, and the Borrower shall
exert its best efforts to cause each of the following conditions to be so
fulfilled:
6.1. All representations and warranties of the Borrower contained in this
Agreement and in each and every one of the other Financing Documents shall be
true, correct, complete and accurate in all respects on and as of the date the
Loan is advanced.
6.2. Each of the Borrower and VNB shall have duly and properly performed
in all respects all covenants, agreements, and obligations required by the terms
of this Agreement or any of the other Financing Documents to be performed by the
Borrower or VNB.
6.3. Neither the Borrower nor VNB shall have taken or permitted to be
taken any actions which would conflict with any of the provisions of Article IV
or Article V of this Agreement.
6.4. The Borrower shall have delivered, or shall have caused to be
delivered, to the Lender the following described documents:
(a) this Agreement duly executed by the Borrower;
(b) the Note duly executed by the Borrower;
(c) the Pledge Agreement duly executed by the Borrower;
(d) the certificates representing the VNB Stock together with a stock
power for each certificate duly executed by the Borrower;
(e) the loan certificate of the Borrower, including a certificate of
incumbency, together with appropriate attachments which shall include, without
limitation, the following: (i) the articles of incorporation of the Borrower,
certified by the Colorado Secretary of State; (ii) the by-laws of the Borrower;
(iii) a good standing certificate for the Borrower from the State of Colorado;
(iv) a copy of the corporate resolutions of the Borrower authorizing the
execution, delivery and performance by the Borrower of each of the Financing
Documents to which it is a party; (v) a true, complete and correct copy of any
shareholders' agreement or voting trust agreement with respect to the shares of
stock of the Borrower; and (vi) the charter documents of VNB, together with a
copy of all documents executed and/or delivered in connection with the
Reorganization;
(f) the opinion of Xxxxxxxxxx & Cody, counsel to the Borrower and
VNB, addressed to the Lender and satisfactory to the Lender, dated the date
hereof; and
(g) such other documents, instruments and agreements as may be
reasonably required by the Lender or the Lender's counsel in connection the Loan
hereunder.
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6.5. No Event of Default or event which, with the giving of notice or
passage of time (or both), would constitute an Event of Default under the terms
of this Agreement, shall have occurred.
6.6. All other matters incidental to the Loan hereunder shall be
satisfactory to the Lender, including, without limitation, the most recently
prepared financial statements (including, without limitation, any pro forma
financial statements) of the Borrower and VNB.
6.7. The Lender shall have received evidence satisfactory to it that the
Federal Reserve Board has approved the transfer to the Borrower of the stock of
VNB currently held by the Shareholders, all required waiting periods with
respect thereto shall have expired (without comment or objection), and all
conditions or requirements imposed by any governmental agency, authority or body
in connection with such approval shall have been met or fulfilled.
6.8. All obligations of the Original Borrowers under the Original Loan
Agreement and all documents executed in connection therewith (collectively, the
"Original Loan Documents") shall have been paid and performed in full, and the
Original Loan Documents shall have been terminated and cancelled.
ARTICLE VII - EVENTS OF DEFAULT
The occurrence of any one or more of the following events will constitute
an event of default (herein called an "Event of Default") by the Borrower under
this Agreement:
7.1. Failure of the Borrower punctually to make payment of any amount
payable, whether principal or interest, on any of the Liabilities within 5 days
after the same becomes due and payable, whether at maturity, or at a date fixed
for any prepayment or partial prepayment, or by acceleration or otherwise.
7.2. If any statement, representation, or warranty of the Borrower made
in this Agreement or in any of the other Financing Documents at any time
furnished by or on behalf of the Borrower to the Lender proves to have been
untrue, incorrect, misleading, or incomplete in any material respect as of the
date made.
7.3. Failure of the Borrower punctually and fully to perform, observe,
discharge or comply with any of the covenants set forth in Sections 4.5, 4.6,
4.7, 5.1, 5.2, 5.3, 5.10 or 5.11 of this Agreement.
7.4. Failure of the Borrower punctually and fully to perform, observe,
discharge or comply with any of the other covenants set forth in this Agreement,
which failure is not cured within thirty (30) days after notice from the Lender
to the Borrower.
7.5. The occurrence of a default, an event of default or an Event of
Default under any of the other Financing Documents.
7.6. If the Borrower or VNB becomes insolvent or makes an assignment for
the benefit of creditors; or if any action is brought by the Borrower or VNB
seeking its dissolution or
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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 VNB commences a voluntary case under the Federal Bankruptcy Code; or
if any reorganization or arrangement proceeding is instituted by the Borrower or
VNB 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 VNB seeking similar relief or alleging that it is insolvent or
unable to pay its debts as they mature.
7.7. If any action is brought against the Borrower or VNB seeking its
dissolution 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 VNB or is
not dismissed within 90 days of the date upon which it was instituted; or if any
proceeding under the Federal Bankruptcy Code is instituted against the Borrower
or VNB 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 VNB or is not
dismissed within 90 days of the date upon which it was instituted; or if any
reorganization or arrangement proceeding is instituted against the Borrower or
VNB 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 VNB or is not dismissed within 90 days of the date upon which it
was instituted; or if any action or petition is otherwise brought against the
Borrower or VNB 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 VNB or is not dismissed within 90 days of the date upon which it was
brought.
7.8. If a "change of control," as defined in the Bank Holding Company Act
of 1956, as amended, of VNB occurs.
ARTICLE VIII - REMEDIES UPON DEFAULT
8.1. Upon the occurrence of an Event of Default:
(a) Any of the Liabilities may (notwithstanding any provisions
contained therein or herein to the contrary), at the option of the Lender and
without presentment, demand, notice or protest of any kind (all of which are
expressly waived by the Borrower in this Agreement), be declared due and
payable, whereupon they immediately will become due and payable.
(b) The Lender may also, at its option, and without notice or demand
of any kind, exercise from time to time any and all rights and remedies
available to it under this Agreement or under any of the other Financing
Documents, as well as exercise from time to time any and all 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.
(c) The Borrower shall pay all of the reasonable costs and expenses
incurred by the Lender in enforcing its rights under this Agreement and the
other Financing Documents. In
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the event any claim under this Agreement or under any of the other Financing
Documents is referred to an attorney for collection, or collected by or through
an attorney at law, the Borrower will be liable to the Lender for all expenses
incurred by it in seeking to collect the Liabilities or to enforce its rights
hereunder, in the other Financing Documents or in the Collateral, including,
without limitation, reasonable attorneys' fees (but not to exceed actual fees
incurred).
(d) Notwithstanding anything herein to the contrary, unless an Event
of Default occurs under Section 7.6, 7.7 or 7.8 above, the Lender shall give the
Borrower not less than 30 days prior written notice before it exercises any of
its rights and remedies under this Article VIII or under any of the other
Financing Documents and the Borrower shall have the opportunity during such 30-
day period to cure any existing Event of Default.
8.2. Any proceeds from disposition of any of the Collateral may be
applied by the Lender first to the payment of all expenses and costs actually
incurred by the Lender in collecting such Liabilities, in enforcing the rights
of the Lender under each and every one of the Financing Documents and in
collecting, retaking, holding, preparing the Collateral for and advertising the
sale or other disposition of and realizing upon the Collateral, including,
without limitation, reasonable attorneys' fees (but not to exceed actual fees
incurred) as well as all other legal expenses and court costs. Any balance of
such proceeds may be applied by the Lender toward the payment of such of the
Liabilities and in such order of application as the Lender may from time to time
elect. The Lender shall pay the surplus, if any, to the Borrower.
ARTICLE IX - MISCELLANEOUS
9.1. Time is of the essence of this Agreement.
9.2. This Agreement, together with all of the other Financing Documents,
supersedes all prior discussions, understandings and agreements by and between
the Borrower and the Lender with respect to the Loan and the Collateral, and
together they constitute the sole and entire agreement between the parties.
9.3. This Agreement and the security interests and security title
conveyed under the Financing Documents shall remain in full force and effect
until such time as (i) the Liabilities are repaid in full, (ii) the Lender is
under no obligation to make loans or other financial accommodations to the
Borrower, and (iii) either party in writing notifies the other that it is
thereby terminating this Agreement.
9.4. The Lender will not be deemed as a consequence of any act, delay,
failure, omission, or forbearance (including without limitation failure to
exercise its rights of accelerating the maturity of any of the Liabilities or
other indulgences granted from time to time by the Lender) or for any other
reason: (1) to have waived, or to be estopped from exercising, any of its rights
or remedies under this Agreement or under any of the other Financing Documents,
or (2) to have modified, changed, amended, terminated, rescinded, or superseded
any of the terms of this Agreement or of any of the other Financing Documents
unless such waiver, modification, amendment, change, termination, rescission, or
supersession is express, in writing and signed by a duly authorized officer of
the Lender. No single or partial exercise by the Lender of any right or
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remedy will preclude other or further exercise thereof or preclude the exercise
of any right or remedy, and a waiver expressly made in writing on one occasion
will be effective only in that specific instance and only for the precise
purpose for which given, and will not be construed as a consent to or a waiver
of any right or remedy on any future occasion.
9.5. 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 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 addresses set forth below, such notices, demands
and other communications are to be deemed to have been delivered on the second
business day after being so posted. If sent by reputable commercial overnight
delivery service or telecopy addressed to the Lender or the Borrower at their
respective addresses set forth below, such notices, demands and other
communications are to be deemed to have been delivered one (1) business day
after being delivered to such delivery service or sent by telecopy. 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.
9.6. The Borrower may not, without the consent of the Lender, assign any
of its rights or duties hereunder or under any of the other Financing Documents.
9.7. This Agreement and all of the other Financing Documents have been
made and delivered in the State of Georgia, and the terms, provisions and
performance thereof are in all respects, including without limitation all
matters of construction, interpretation, validity, enforcement, and performance,
to be construed in accordance with and governed by the laws of that State,
including without limitation the Uniform Commercial Code of Georgia, as amended
and in effect on the date of this Agreement. Wherever possible, each provision
of this Agreement and of each and every one of the other Financing Documents is
to be interpreted in such manner as to be effective and valid under applicable
law, but if any provision thereof is prohibited or invalid under such law, such
provision is to be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Agreement or of any of the other Financing
Documents.
9.8. "Herein," "hereof," and "hereunder" and other words of similar
import refer to this Agreement as a whole and not to any particular article,
paragraph, section or other subdivision.
9.9. The titles of the Articles appear as a matter of convenience only
and shall not affect the interpretation hereof.
9.10. Words importing the singular number shall include the plural number
and vice versa, and pronouns used shall be deemed to cover all genders.
9.11. The Borrower agrees to promptly pay:
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(a) All reasonable out-of-pocket expenses of the Lender in connection
with the preparation, negotiation, execution, and delivery of this Agreement and
the other Financing Documents, the transactions contemplated hereunder and
thereunder, and the making of the Loan, including, but not limited to the
reasonable and customary fees and disbursements of counsel for the Lender;
(b) All reasonable out-of-pocket expenses of the Lender in connection
with the preparation and negotiation of any waiver, amendment, or consent
relating to this Agreement or the other Financing Documents whether or not
executed, including, but not limited to, the reasonable and customary fees and
disbursements of counsel for the Lender; and
(c) All reasonable out-of-pocket costs and expenses of collection if
default is made in the payment of the Note, which in each case shall include
reasonable and customary fees and out-of-pocket expenses of counsel for the
Lender, and the fees and out-of-pocket expenses of any experts, agents, or
consultants of the Lender.
9.12. Any brokerage commission or finder's fee payable to any Person in
connection with the transactions contemplated herein shall be payable by the
Borrower or VNB, or both of them, and not by the Lender. The Borrower hereby
indemnifies and agrees to hold the Lender harmless from and against any and all
losses, liabilities, damages, costs and expenses which may be suffered or
incurred by the Lender in respect of any claim, suit, action or cause of action
now or hereafter asserted by a broker or finder or any Person acting in a
similar capacity arising from or in connection with the execution and delivery
of this Agreement or any other Financing Document or the consummation of the
transactions contemplated herein or therein.
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IN WITNESS WHEREOF, the Lender has executed this Agreement, and the
Borrower has executed this Agreement under seal, all as of the day and year
first above written.
BORROWER:
BANK OF COLORADO HOLDING COMPANY, a Colorado
corporation
By: /s/ Xxxx X. Xxxxxx
------------------------------
Title: President
---------------------------
[CORPORATE SEAL]
Attest: /s/ Xxxxxxxx Xxxxxxxx
--------------------------
Title: Vice President/Secretary
---------------------------
Address: 000 Xxxxx Xxxxxxxx Xxxx Xxxx
Xxxx, Xxxxxxxx 00000
LENDER:
XXXXXXX BANK OF SOUTHWEST FLORIDA
By: /s/
------------------------------
Title: Vice President
---------------------------
Address: Xxxxxxx Bank of S.W. Florida
X.X. Xxx 0000
Xxxxxxxx, XX 00000
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