EXHIBIT 10.3
Pledge and Assignment Agreement, dated December 26, 2001
between
Virginia Commerce Bancorp, Inc. and Provident Bank
PLEDGE AND ASSIGNMENT AGREEMENT
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THIS PLEDGE AND ASSIGNMENT AGREEMENT (this "Agreement") is made this _____ day
of December, 2001, by VIRGINIA COMMERCE BANCORP, INC., a Virginia corporation
(the "Borrower") for the benefit of PROVIDENT BANK, a Maryland banking
corporation (the "Lender").
RECITALS
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A. The Borrower and the Lender have entered into a Loan Agreement dated of even
date with this Agreement (as amended, modified, restated, substituted, extended
and renewed at any time and from time to time, the "Loan Agreement").
B. It is a condition precedent, among others, to the Lender's agreement to enter
into the Loan Agreement and to make advances thereunder that the Borrower enter
into this Agreement in order to secure the full and prompt performance by the
Borrower of all of the "Obligations" defined in Loan Agreement.
C. All capitalized terms used but not defined in this Agreement shall have the
meaning given to such terms in the Loan Agreement.
AGREEMENTS
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NOW, THEREFORE, in consideration of the Lender's entering into the Loan
Agreement and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Borrower hereby agrees as
follows:
1. Pledge. As security for the prompt and full performance of the
Obligations, the Borrower hereby pledges, assigns and grants to the Lender a
security interest in the property of the Borrower described in EXHIBIT A and all
proceeds (cash and non-cash) thereof (collectively, the "Stock Collateral"),
whether now existing or hereafter created or arising and any substitutes for or
additions to the Stock Collateral, and together with any interest, stock rights,
rights to subscribe, cash dividends, dividends paid in stock, liquidating
dividends, new securities and other property to which the Borrower may become
entitled by reason of the ownership of the Stock Collateral therein during the
existence of this Agreement and all rights to receive payments relating thereto.
The Borrower agrees that with respect to the Stock Collateral the Lender shall
have all the rights and remedies of a secured party under the Uniform Commercial
Code, as well as those provided by law and/or in this Agreement, subject to
compliance with applicable Law.
2. Representation and Warranty. The Borrower represents and warrants
that:
(a) the Borrower is the owner of all legal and beneficial interests in
and to the Stock Collateral, free and clear of all security interests,
assignments, pledges, voting trusts, agreements, liens, security interests,
pledges, claims and encumbrances whatsoever (each a "Lien"; collectively,
"Liens"), other than the Lien granted to the Lender under this Agreement, and
the Lien related to the BB&T Loan;
(b) subject to the release of the Lien related to the BB&T Loan, the
Borrower has the right to transfer its interest in the Stock Collateral; and
(c) the shares of stock of the Bank represented by the certificate
described on Exhibit A constitute all of the shares of the Bank issued and
outstanding as of the date hereof, and the certificate is genuine and valid.
3. Borrower's Rights. Until such time an Event of Default has occurred
hereunder or under any of the Loan Documents which shall continue beyond any
applicable cure period, the Borrower shall retain the right to receive, and to
use and enjoy, all cash dividends and distributions paid on the Stock Collateral
at any time in the Lender's control and to vote all shares of stock and/or any
other securities constituting any part of the Stock Collateral.
4. Covenants. Until payment in full and the performance of all of the
Obligations secured hereby, the Borrower covenants and agrees with the Lender
that:
(a) All Stock Collateral at any time received or held by the Borrower
shall be received and held by the Borrower in trust for the benefit of the
Lender, shall be kept separate and apart from, and not commingled with, the
Borrower's other assets, and shall be immediately delivered to the Lender.
(b) The Borrower will do or cause to be done all things necessary to
preserve and to keep in full force and effect its interests in the Stock
Collateral, and shall defend, at its sole expense, the title to the Stock
Collateral and any and all parts thereof.
(c) The Borrower shall promptly, upon request by the Lender, execute,
acknowledge and deliver any financing statement, endorsement, notices,
assignment, continuation statement, certificate or other document as the Lender
reasonably may require in order to perfect, preserve, maintain, protect,
continue, realize upon, and/or extend the Lien granted to the Lender under this
Agreement and the priority thereof.
(d) The Borrower will not transfer any direct or indirect interest in
the Stock Collateral or create, incur, assume or suffer to exist any Lien upon
any of the Stock Collateral, other than that in favor of the Lender.
5. Events of Default. The occurrence of any one or more of the
following events shall constitute an "Event of Default" under the provisions of
this Agreement: (a) there occurs any failure to pay any amounts when due and
owing under the Obligations, subject to any applicable cure or grace periods
provided in the applicable Loan Documents; or (b) any representation or warranty
made in this Agreement or in any of the other Loan Documents, shall prove to
have been false or misleading in any material respect when made or, if
applicable, when reaffirmed, or (c) an event of default shall occur and shall
continue uncured under any of the other Loan Documents.
6. Remedies. Upon the occurrence of any Event of Default:
(a) The Lender shall have all of the rights and remedies of a secured
party under the applicable Uniform Commercial Code and other applicable Laws.
Upon demand by the Lender, the Borrower shall assemble the Stock Collateral not
in the Lender's possession and make it available to the Lender, at a place
designated by the Lender.
(b) Any written notice of the sale (public or private), disposition or
other intended action by the Lender with respect to the Stock Collateral which
is sent by regular mail, postage prepaid, to the Borrower at its address set
forth in the Loan Agreement, at least ten (10) days prior to such sale,
disposition or other action shall constitute commercially reasonable notice to
the Borrower. The Lender may alternatively or additionally give such notice in
any other commercially reasonable manner. Nothing in this Agreement shall
require the Lender to give any notice not required by applicable Laws.
(c) Any proceeds of sale or other disposition of the Stock Collateral
will be applied by the Lender, after deducting all reasonable costs of sale, to
the Obligations secured by this Agreement in such order and manner of
application as the Lender may determine from time to time in its sole and
absolute discretion.
7. Reimbursement for Expenses. In the event the Lender shall commence
any action or proceeding for the enforcement of this Agreement, the Borrower
will reimburse the Lender, promptly upon demand, for any and all reasonable
expenses incurred by the Lender in connection with such action or proceeding
including, without imitation, reasonable attorneys' fees.
8. Lender's Duty of Care. It is agreed and understood that the Lender's
duty with respect to the Stock Collateral shall be solely to use reasonable, due
care in the custody and preservation of the Stock Collateral at any time in the
Lender's possession, which shall not include any steps necessary to preserve
rights against prior parties.
9. Further Assurances. The Borrower shall, at its expense, do, make,
procure, execute and deliver all acts, things, writings and assurances as the
Lender may at any time request to protect, assure or enforce its interest,
rights and remedies created by, provided in or emanating from this Agreement and
that it will defend the Stock Collateral and its proceeds against the claims and
demands of all third parties.
10. Severability. In the event any provision of this Agreement (or any
part of any provision) is held by a court of competent jurisdiction to be
invalid, illegal, or unenforceable in any respect, such invalidity, illegality,
or unenforceability shall not affect any other provision (or remaining part of
the affected provision) of this Agreement; but this Agreement shall be construed
as if such invalid, illegal, or unenforceable provision (or part thereof) had
not been contained in this Agreement, but only to the extent it is invalid,
illegal, or unenforceable.
11. Successors and Assigns. All of the grants, covenants, terms,
provisions and conditions of this Agreement shall inure to the benefit of, and
be enforceable by, the Lender and its successors and assigns, and shall be
binding upon, and enforceable against, the Borrower and its successors and
assigns.
12. Modification - Waiver. No modification or waiver of any provision
of this Agreement, nor consent to any departure by the Borrower therefrom, shall
in any event be effective unless the same shall be in writing, and then such
waiver or consent shall be effective only in the specific instance and for the
purpose for which given. No notice to or demand on the Borrower in any instance
shall entitle the Borrower to any other or further notice or demand in the same,
similar or other circumstances.
13. Remedies Cumulative and Concurrent. No remedy herein conferred upon
or reserved to the Lender is intended to be exclusive of any other remedy or
remedies, and each and every such remedy shall be cumulative, and shall be in
addition to every other remedy given hereunder or now or hereafter existing at
law or in equity or by statute. Every right, power and remedy given by this
Agreement to the Lender shall be concurrent and may be pursued separately,
successively or together against the Borrower; and every right, power and remedy
given by this Agreement to the Lender may be exercised from time to time as
often as may be deemed expedient by the Lender.
14. Strict Performance. No delay or omission of the Lender to exercise
any right, power or remedy herein conferred upon or reserved to the Lender shall
impair any such right, power or remedy or shall be construed to be a waiver
thereof. No delay or omission on the part of the Lender to exercise any option
granted to the Lender hereunder in any one or more instances shall constitute a
termination or waiver of any such option and each such option shall remain
continuously in full force and effect.
15. Captions. The captions and headings contained in this Agreement are
included herein for convenience of reference only and shall not be considered a
part hereof and are not in any way intended to define, limit or enlarge the
terms hereof.
16. Applicable Law. This Agreement shall be governed by and construed,
interpreted and enforced in accordance with and pursuant to the laws of the
State of Maryland.
17. Notices. All notices, demands, requests and other communications
required pursuant to the provisions of this Agreement shall be in writing and
shall be deemed to have been properly given or served for all purposes when
delivered pursuant to the terms of the Loan Agreement.
18. Consent to Jurisdiction. The Borrower irrevocably submits to the
jurisdiction of any state or federal court sitting in the State of Maryland over
any suit, action, or proceeding arising out of or relating to this Agreement.
The Borrower irrevocably waives, to the fullest extent permitted by law, any
objection that it may now or hereafter have to laying the venue of any such
suit, action, or proceeding brought in any such court and any claim that any
such suit, action, or proceeding brought in any such court has been brought in
an inconvenient forum. Final judgment in any such suit, action, or proceeding
brought in any such court shall be conclusive and binding upon the Borrower and
may be enforced in any court to the jurisdiction of which the Borrower is
subject, by a suit upon such judgment provided that service of process is
effected upon the Borrower in a manner specified in this Agreement or as
otherwise permitted by applicable law.
19. WAIVER OF TRIAL BY JURY. THE BORROWER AND THE LENDER HEREBY,
JOINTLY AND SEVERALLY, WAIVE TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO
WHICH EITHER OF THEM MAY BE PARTIES, ARISING OUT OF OR IN ANY WAY PERTAINING TO
THIS AGREEMENT. IT IS AGREED AND UNDERSTOOD THAT THIS WAIVER CONSTITUTES A
WAIVER OF TRIAL BY JURY OF ALL CLAIMS AGAINST ALL PARTIES TO SUCH ACTIONS OR
PROCEEDINGS, INCLUDING CLAIMS AGAINST PARTIES WHO ARE NOT PARTIES TO THIS
AGREEMENT. THIS WAIVER IS KNOWINGLY, WILLINGLY AND VOLUNTARILY MADE BY THE
BORROWER, AND THE BORROWER HEREBY REPRESENTS AND WARRANTS THAT NO
REPRESENTATIONS OF FACT OR OPINION HAVE BEEN MADE BY ANY INDIVIDUAL TO INDUCE
THIS WAIVER OF TRIAL BY JURY OR TO IN ANY WAY MODIFY OR NULLIFY ITS EFFECT. THE
BORROWER FURTHER REPRESENTS AND WARRANTS THAT IT HAS BEEN, OR HAS HAD THE
OPPORTUNITY TO HAVE BEEN, REPRESENTED IN THE SIGNING OF THIS AGREEMENT AND IN
THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL, SELECTED OF ITS OWN FREE
WILL, AND THAT IT HAS HAD THE OPPORTUNITY TO DISCUSS THIS WAIVER WITH COUNSEL.
20. Term. This Agreement shall be a continuing one and shall be binding
upon the Borrower regardless of how long before or after the date hereof the
Obligations were or are incurred. This Agreement shall terminate when all sums,
if any, payable by the Borrower pursuant to the Loan Documents shall have been
paid in full and the Borrower shall have no further liability or obligations to
the Lender under the Loan Documents. If at any time any payment, or any portion
thereof, made by, or for the account of, the Borrower on account of any of the
obligations and liabilities hereunder is set aside by any court or trustee
having jurisdiction as a voidable preference or fraudulent conveyance or must
otherwise be restored or returned by the Lender to the Borrower under any
insolvency, bankruptcy or other federal and/or state laws or as a result of any
dissolution, liquidation or reorganization of the Borrower or upon, or as a
result of, the appointment of any receiver, intervenor or conservator of, or
trustee, or similar officer for, the Borrower or any substantial part of the
properties or assets of the Borrower, the Borrower hereby agrees that this
Agreement shall continue and remain in full force and effect or be reinstated,
as the case may be, all as though such payment(s) had not been made.
IN WITNESS WHEREOF, the Borrower has caused this Agreement to be executed,
sealed and delivered, as of the day and year first written above.
WITNESS OR ATTEST: VIRGINIA COMMERCE BANCORP, INC.
By: (SEAL)
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Name:
Title:
