EXHIBIT 10.38
COMMUNITY SHORES LLC
SUBORDINATED NOTE PURCHASE AGREEMENT
DECEMBER 31, 2001
To: Purchaser of a Floating Rate
Subordinated Note of Community Shores
Bank Corporation, Due June 30, 2007
Community Shores Bank Corporation, a Michigan corporation (the
"Company"), whose address is 0000 X. Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000,
agrees with you ("you") as follows:
1. The Note. The Company intends to issue up to $4,000,000 of its
Floating Rate Subordinated Notes due June 30, 2006 (the "Floating Rate
Subordinated Notes"). The Company has taken all necessary action to authorize
the execution and delivery of this Agreement and the sale and issuance to you
under this Agreement of one of its Floating Rate Subordinated Notes, in the
principal amount (which together with Floating Rate Subordinated Notes
previously issued to you and expected to be issued to you in the future, is not
less than $100,000) designated by you on the signature page of this Agreement
(the "Note"). The Note will be in substantially the form set forth as Exhibit A
to this Agreement. The Note will be dated as of the Closing Date (defined
below), and mature on June 30, 2007, unless the maturity date is extended by
written agreement of the Company and you. The Note will bear interest on its
unpaid principal balance at the Adjusted Firstar Prime Rate from the Closing
Date until payment in full, payable quarterly in arrears on April 15, July 15,
October 15, and January 15 of each year, for the immediately preceding quarter,
commencing April 15, 2002. The Adjusted Firstar Prime Rate is the per annum rate
announced from time to time by Firstar Bank, N.A. as its prime rate, or if that
rate is not practical to determine for any period, then during such period the
prime rate prevailing at the time in the State of Michigan, plus in either case
one and one-half percent (1 1/2%) per annum. Interest on overdue interest will
be payable on demand at the rate of ten percent (10%) per annum. During the
continuance of any Event of Default the per annum rate of interest payable on
the unpaid principal balance of the Note will increase from the Adjusted Firstar
Prime Rate to two percent (2%) per annum above the Adjusted Firstar Prime Rate.
The Note will be unsecured and will not be convertible into capital stock of the
Company. The Note may be prepaid in whole or in part prior to maturity, without
any prepayment fee, at any time at the election of the Company, upon at least
one (1) days prior written notice to you.
THE NOTE WILL BE ISSUED IN REGISTERED FORM ONLY AND WILL BE
TRANSFERABLE ONLY AS PROVIDED IN THIS AGREEMENT. THE NOTE WILL NOT BE ELIGIBLE
AS COLLATERAL FOR LOANS FROM THE COMPANY'S SUBSIDIARY, COMMUNITY SHORES BANK
(THE "BANK"). THE NOTE IS NOT A DEPOSIT OR OTHER OBLIGATION OF THE BANK. THE
NOTE IS NOT INSURED
BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY.
2. Purchase and Sale of the Note. Subject to the terms and conditions
of this Agreement, and in reliance upon the representations and warranties set
forth in this Agreement, you agree to purchase from the Company, and the Company
agrees to issue and sell to you, a Note, in the aggregate principal amount you
have designated on the signature page of this Agreement, upon delivery by you,
at or prior to the Closing Date, of the purchase price specified in Section 3.
The Company will initially issue to you one Note registered in your name and
payable to you in the aggregate principal amount of the Note being purchased by
you.
3. Closing. The Closing under this Agreement will take place at the
main office of the Company at 0000 X. Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000,
at 9:00 a.m., on December 31, 2001 or on such other date and time as may be
mutually agreed upon between you and the Company (such date and time is called
the "Closing Date"). Unless otherwise mutually agreed between you and the
Company, at the Closing the Company will deliver the Note to you against payment
by you, by delivery to the Company of cash, a personal check, bank cashier's
check, or wire transfer, for 100% of the aggregate principal amount of the Note
to be sold and delivered to you (the "Purchase Price").
4. Representations and Warranties of the Company. The Company
represents and warrants to you as follows:
(a) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Michigan.
(b) The Company is duly authorized to conduct its current
business and has all requisite corporate power and authority to own and operate
its properties and assets (including the voting capital stock of the Bank), and
to carry on its business; except to the extent that the Company's failure to be
so authorized or have such power or authority would not be expected to have a
material adverse effect on the Company.
(c) The Company is duly authorized to enter into this
Agreement, to issue and sell the Note, and to perform the terms of this
Agreement and of the Note.
(d) The Company has furnished to you its audited consolidated
balance sheets as of December 31, 1999 and 1998, and the related consolidated
statements of income, changes in shareholders' equity and cash flow for the year
ended December 31, 1999 and the period from July 23, 1998 (inception) through
December 31, 1998; together with the report thereon of Xxxxx Xxxxxx and Company
LLP, independent auditors for the Company. Such financial statements present
fairly, in all material respects, the financial position of the Company as of
December 31, 1999 and 1998, and the results of its operations and its cash flows
for the year ended
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December 31, 1999 and for the period from July 23, 1998 (inception) through
December 31, 1998, in conformity with generally accepted accounting principles.
(e) Since December 31, 1999, there has been no material
adverse change in the business or financial condition of the Company, except to
the extent disclosed in the Company's Quarterly Report to the Securities and
Exchange Commission for the quarter ended September 30, 2000, a copy of which
has been provided to you, or to the extent that the Company's operations since
December 31, 1999 have used cash or generated a loss, or require that the
Company or the Bank have additional capital to satisfy applicable bank
regulatory requirements.
(f) There are no actions, suits, proceedings or investigations
pending before any court or governmental agency, or, to the Company's knowledge,
threatened before any such court or governmental agency, which the Company
expects will result in any judgment, order, decree or liability having a
material adverse effect upon the business or financial condition of the Company,
or which questions the validity of the Note or this Agreement.
(g) The Company has filed all federal, state, local and other
tax returns required by law to be filed by it, and all taxes shown to be due and
all additional assessments shown to be due, have been paid by the Company;
except to the extent that the failure to make any such filing or payment would
not be expected to have a material adverse effect on the Company.
(h) The Company is not in default under, nor is it violating
any term of its Articles of Incorporation or its Bylaws, or any term or
condition of any agreement, lease, contract, instrument, judgment, decree, or
order applicable to it, where such default or violation would be expected to
have a material adverse effect on the Company. Neither the execution and
delivery of this Agreement, nor the consummation of the transactions
contemplated by this Agreement, nor compliance with the provisions of this
Agreement and of the Note, will result in any default under or violation of any
term or condition of any agreement, lease, contract, instrument, judgment,
decree, or order applicable to it, where such default or violation would be
expected to have a material adverse effect on the Company, or in the creation of
any mortgage, lien, charge, or encumbrance upon any of the properties and assets
of the Company, where such mortgage, lien, charge or encumbrance would be
expected to have a material adverse effect on the Company.
(i) There exists no condition, event or act which would
constitute an Event of Default, as defined in Section 9 of this Agreement, or
which, after notice or lapse of time or both, would constitute such an Event of
Default.
5. Representations, Warranties and Covenants of the Purchaser. You are
aware that the Company intends to issue the Note and the other Floating Rate
Subordinated Notes pursuant to an exemption from registration under Rule 506 of
Regulation D or Section 4(2) of the Securities Act of 1933 (the "Securities
Act"), and
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under Section 402(b)(9) of the Michigan Uniform Securities Act (the "Michigan
Act"), or without registration under the Michigan Act in reliance on Section 18
of the Securities Act. In determining whether these exemptions from registration
under the Securities Act, the Michigan Act, or other applicable securities laws,
are available, the Company is relying upon your representations, warranties and
covenants contained in this Agreement, and upon those of other purchasers of the
Company's Floating Rate Subordinated Notes. You represent and warrant to, and
agree with, the Company as follows:
(a) You are acquiring the Note solely for your own account,
for investment and not with a view to any further sale or distribution of the
Note.
(b) The Note has not been registered under the Securities Act,
the Michigan Act, or any other state securities act, and will not be sold or
otherwise transferred without registration under the Securities Act, the
Michigan Act, and any other applicable state securities act, or an exemption
from registration. You recognize that the certificate representing the Note will
bear a restrictive legend providing that no sale or other transfer may be made
without registration under federal and state securities laws or an exemption
from registration. The records of the Company will also be marked to note the
restrictions on transfer of the Note referred to in this Section.
(c) In addition to the restrictions on transfer set forth in
subsection (b) above, you agree that you will give the Company at least 10
business days (or such shorter period as the Company may agree to) advance
notice of any proposed sale, pledge, or other transfer of the Note or of any
interest in the Note; and will not sell, pledge or otherwise transfer the Note,
or any interest in the Note, without the written consent of the Company; except
that no consent of the Company shall be required for any sale of the Note to any
person who is a member of the Board of Directors of the Company at the time of
the sale, or that is an entity all of the equity owners of which are members of
the Board of Directors of the Company at the time of the sale, and provided
further that this Note may be pledged to Firstar Bank, N.A. (which entity may
also be referred to as Firstar Bank, National Association), and no consent of
the Company shall be required for any sale, pledge or transfer to Firstar Bank,
N.A., or for any sale or transfer in compliance with applicable securities laws
to any purchaser upon exercise of any remedy by Firstar Bank, N.A. in connection
with any such pledge. The Company may decline to grant its consent for any
reason, or no reason.
(d) The Note was not offered to you by means of any
advertisement, article, notice or other communication published in any
newspaper, magazine or similar medium, or broadcast over television or radio, or
any other form of general solicitation or advertising. Materials submitted to
you in connection with the purchase of the Note were received by you at least 48
hours before this Agreement was signed.
(e) You have not paid or agreed to pay any commission to any
person for soliciting you to purchase the Note; and you are not aware any other
person
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making any agreement to pay, or paying any commission in connection with the
sale of any Floating Rate Subordinated Note.
(f) You are an "accredited investor" as that term is defined
in Regulation D under the Securities Act, because (check the clause that
applies):
_______ You are a member of the Board of Directors of the Company; or
_______ You are a limited liability company, all of the members of which are
member of the Board of Directors of the Company; or
_______ You are an individual retirement account, the sole owner of which is a
member of the Board of Directors of the Company; or
___X___ Describe your basis for being an accredited investor
All of your members are members of the Board of Directors of
the Company.
(g) All communication with you regarding the purchase of the
Note has occurred in the State of Michigan; and if you are an individual, you
are a bona fide resident of the State of Michigan, and if you are an entity,
your principal office is located in the State of Michigan.
(h) You have full power and authority, and have taken, and if
you are an entity, your members, shareholders, directors, trustees or other
governing bodies have taken all action necessary to authorize the purchase of
the Note, and you have obtained the consent or approval of all governmental
agencies or bodies whose consent or approval is required for your purchase of
the Note. Your purchase of the Note does not violate any law, rule or regulation
to which you are subject nor the terms of any agreement or undertaking to which
you are a party.
6. Payment, Registration and Transfer of the Note. The Company may make
all payments on account of the principal of the Note and any interest thereon
directly by check duly mailed or delivered to you at your address set forth in
the register referred to in this Section 6, without any presentment or notation
of payment, notwithstanding any provisions to the contrary in the Note with
respect to the place and manner of payment. Any amount of principal so paid on
the Note shall be regarded as having been retired and cancelled at the time of
payment. When all principal of and interest on the Note has been fully paid, the
Note shall be surrendered to the Company and shall be retired and cancelled.
The Company will cause to be kept at its principal office a register in
which shall be entered the name and address of the holder of the Note, the
particulars of the Note, and of all transfers of the Note. The person in whose
name the Note shall be so registered shall be deemed and treated as the owner of
the Note for all purposes of
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this Agreement and the Company shall not be affected by any notice to the
contrary. Payment of or on account of the principal of and interest on the Note
shall be made only to or upon the written order of the registered owner. For the
purpose of any request, direction, consent, or waiver under this Agreement, the
Company may deem and treat the registered owner of the Note as the owner of the
Note without production of the Note.
Subject to compliance with the requirements of Sections 5(b) and 5(c)
of this Agreement, the holder of the Note may at any time prior to maturity or
payment in full of the Note transfer the Note by surrender of the Note at the
principal office of the Company with an appropriate instrument of transfer, and
the Company shall, without expense to such holder or transferee, execute and
deliver to the transferee a new Note registered in the name of such transferee
in principal amount equal to the unpaid principal amount of the Note so
transferred. All Notes so issued upon transfers or exchanges shall have the same
maturity and rate of interest, contain the same provisions, and be subject to
the same terms and conditions as the Note so surrendered, including all of the
provisions of this Agreement.
Upon receipt of evidence satisfactory to the Company of the loss,
theft, destruction or mutilation of any Note, and, if requested by the Company,
upon delivery of an indemnity agreement or security reasonably satisfactory to
the Company, the Company will issue a new Note of like tenor and amount in lieu
of such lost, stolen, destroyed or mutilated Note. References in this Agreement
to the Note shall include any Note issued pursuant to this Section 6.
7. Subordination. The Company, for itself, its successors and assigns,
covenants and agrees, and each original and successor holder of the Note by his
acceptance thereof likewise covenants and agrees that, notwithstanding any other
provision of this Agreement or the Note, the payment of the principal of and
interest on the Note shall be subordinated in right of payment, to the extent
and in the manner set forth in this Agreement, to the prior payment in full of
all of the Company's Senior Debt. "Senior Debt" means (a) all obligations and
liabilities of the Company for borrowed money or purchased money, whether direct
or indirect, absolute or contingent, joint, several or joint and several,
secured or unsecured, due or to become due, now existing or later arising, (b)
all similar obligations of the Company arising from off-balance sheet guarantees
and direct credit substitutes, and (c) all obligations of the Company associated
with derivative products such as interest and foreign exchange rate contracts,
commodity contracts, and similar arrangements; to the extent, in each case, they
are not by their terms made subordinate and junior to or on a parity with the
Note, provided, however, that the obligations evidenced by the Company's
Floating Rate Subordinated Notes that are now outstanding or later issued shall
not constitute Senior Debt. The Note is not superior in right of payment to the
other Floating Rate Subordinated Notes, but instead shall rank pari passu with
all of the other Floating Rate Subordinated Notes for all purposes. The Note is
senior to the Company's capital stock and in the event of any liquidation or
insolvency of the Company would
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be eligible to receive payments out of the Company's assets before any payments
to the Company's shareholders with respect to the capital stock.
In the event of any bankruptcy, insolvency or similar proceedings or
any receivership, liquidation, reorganization or other similar proceedings
relative to the Company or to its property, and in the event of any proceedings
for voluntary liquidation, dissolution or other winding up of the Company or the
distribution or marshalling of its assets or any composition with creditors of
the Company, whether or not involving insolvency of the Company, then and in
such event:
(i) all obligations of the Company to which the Note is subordinated in
right of payment shall be paid in full before any payment or distribution of any
character shall be made on account of the Note;
(ii) any payment by, or distribution of assets of, the Company of any
kind or character, whether in cash, property or securities, to which the holder
of the Note would be entitled except for the provisions of this Section 7 shall
be paid or delivered by the person making such payment or distribution, whether
a trustee in bankruptcy, a receiver or liquidating trustee or otherwise,
directly to the holders of Senior Debt or their representative or
representatives or to the trustee or trustees under any indenture under which
any instruments evidencing any of such Senior Debt may have been issued, ratably
according to the aggregate amounts remaining unpaid on account of the Senior
Debt held or represented by each, to the extent necessary to make payment in
full of all Senior Debt remaining unpaid after giving effect to any concurrent
payment or distribution to the holders of such Senior Debt; and
(iii) in the event that, notwithstanding the foregoing, any payment by,
or distribution of assets of, the Company of any kind or character, whether in
cash, property or securities shall be received by the holder of the Note before
all Senior Debt is paid in full, such payment or distribution shall be held in
trust for the benefit of, and shall be paid over to the holders of such Senior
Debt or their representative or representatives or to the trustee or trustees
under any indenture under which any instruments evidencing any of such Senior
Debt may have been issued, ratably as aforesaid, for application to the payment
of all Senior Debt remaining unpaid until all such Senior Debt shall have been
paid in full, after giving effect to any concurrent payment or distribution to
the holders of such Senior Debt.
Subject to the payment in full of all Senior Debt, the holder of the
Note shall be subrogated to the rights of the holders of the Senior Debt to
receive payments or distributions of cash, property or securities of the Company
applicable to the Senior Debt until all amounts owing on the Note shall be paid
in full, and as between the Company, its creditors other than holders of Senior
Debt, and the holder of the Note no such payment or distribution made to the
holders of Senior Debt by virtue of this Section 7 which otherwise would have
been made to the holder of the Note shall be deemed to be a payment on account
of the Senior Debt, it being understood that the provisions of this Section 7
are intended solely for the purpose of defining the relative
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rights of the holder of the Note, on the one hand, and the holders of the Senior
Debt, on the other hand.
In the event that any default occurs in the payment of the principal of
(and premium, if any) or interest on any Senior Debt, and if thereafter judicial
proceedings shall have been instituted with respect to such defaulted payment,
or if the maturity of any Senior Debt is accelerated by any holder thereof upon
a default with respect thereto and such acceleration has not been rescinded or
said accelerated Senior Debt has not been paid, then, and during the continuance
of either of such events, no payment of principal or interest on the Note shall
be made by the Company or demanded or accepted by any holder of the Note who has
received notice from the Company or from a holder of such Senior Debt of either
of such events. In case any payment or distribution shall be paid or delivered
to any holder of the Note who has received notice of either of the events
specified in the preceding sentence, in violation or contravention of the
provisions of this subordination, such payment or distribution shall be held in
trust for and paid and delivered to the holders of such Senior Debt until they
shall have been paid in full.
No present or future holder of Senior Debt shall be prejudiced in his
right to enforce subordination of the Note by any failure to act on the part of
the Company.
The subordination provisions of this Section 7 are solely for the
purpose of defining the relative rights of the holders of Senior Debt on the one
hand and the holder of the Note on the other hand, and nothing herein shall
impair, as between the Company and the holder of the Note, the obligation of the
Company, which is unconditional and absolute, to pay to such holder the
principal of and interest on the Note in accordance with its terms, nor shall
anything in this Agreement prevent the holder of the Note from exercising all
remedies in this Agreement or otherwise permitted by applicable law upon the
occurrence of an Event of Default under this Agreement (subject to the rights,
if any, of the holders of Senior Debt to receive cash, property or securities
otherwise payable or deliverable to the holder of the Note).
8. Covenants of the Company. The Company covenants and agrees that, so
long as the Note is outstanding, it will perform and observe the following
covenants and provisions:
(a) The Company will pay the principal of and interest on the
Note at the time and place and in the manner stated in the Note.
(b) The Company will not sell all or substantially all of its
assets unless the purchaser agrees to be liable for the payment of all of the
Company's obligations under the Note.
(c) The Company will not consolidate with or merge into any
other corporation or entity or permit any other corporation or entity to
consolidate with or merge into the Company; provided that the foregoing shall
not apply to any
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consolidation or merger to which the Company is a party if the Company is the
surviving corporation, or the surviving corporation agrees to be liable for the
payment of all of the Company's obligations under the Note.
(d) The Company will provide, within 20 days after written
request or request in person at the main office of the Company, to the holder of
the Note a copy of the consolidated balance sheet of the Company as of the end
of the most recently completed fiscal year of the Company and a consolidated
statement of income for such fiscal year, in reasonable detail and prepared in
accordance with generally accepted accounting principles. Such financial
statements will be available to the holder of the Note on or after the 90th day
following the end of each fiscal year of the Company.
(e) During any period that an Event of Default exists and is
continuing under this Agreement, the Company will not make any payment of
principal of or interest on any other Floating Rate Subordinated Note unless the
Company makes a payment of principal or interest on the Note in an amount such
that the payments of principal and interest made on the Floating Rate
Subordinated Notes outstanding at that time are pro rata, based on the principal
and interest then due on each respective Floating Rate Subordinated Note
compared to the principal and interest then due on all of the Floating Rate
Subordinated Notes.
(f) The Company will, from time to time, within ten (10) days
after submission of a written request for payment, reimburse you for all
reasonable out-of-pocket costs, including legal fees and expenses, incurred by
you in connection with the preparation or review of this Agreement, the Note,
any amendment or proposed amendment to this Agreement or the Note, or any
related documents, or in analyzing or enforcing any of your rights under this
Agreement or the Note, or in connection with any claim or inquiry brought by any
shareholder of the Company or by any bank regulatory organization, in connection
with this Agreement, the Note, or any of the related transactions.
(g) Within five (5) days after the Closing, the Company will
pay to you an amount equal to one percent (1%) of the Purchase Price as a
closing fee.
9. Defaults. Each of the following events shall constitute an "Event of
Default" under this Agreement:
(a) If the Company shall default in the payments of any part
of the principal of the Note when the same shall become due and payable, whether
at maturity or at a date fixed for prepayment or by acceleration or otherwise;
and the default continues for more than (ten) 10 days after the holder of the
Note provides written notice of the default to the Company; or
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(b) If the Company shall default in the payment of any
installment of interest on the Note, and the default continues for more than
(fifteen) 15 days after the holder of the Note provides written notice of the
default to the Company; or
(c) If the Company shall default in the performance or
observance of any of the terms, covenants, or conditions of this Agreement or
the Note, and such default shall continue for more than thirty (30) days after
the holder of the Note provides written notice of the default to the Company; or
(d) If any representation or warranty made by the Company in
this Agreement shall prove to have been false or incorrect in any material
respect on the date as of which it was made; or
(e) If the Company shall default in the payment of any
principal of or interest on any Floating Rate Subordinated Note other than the
Note, or upon any Senior Debt aggregating more than $100,000 in amount; and such
default continues unremedied for more than fifteen (15) days after notice by the
holder or holders of any such Floating Rate Subordinated Notes or Senior Debt to
the Company of such default; or
(f) The Commissioner of the Michigan Office of Financial and
Insurance Services, the Board of Governors of the Federal Reserve System, or the
Federal Deposit Insurance Corporation, or any other regulatory authority having
jurisdiction shall take possession of the properties, assets, and business of
the Bank or appoint a receiver or conservator of the Bank; or
(g) Any action or proceeding shall be commenced by or against
the Company or the Bank for reorganization, liquidation or similar relief under
the Bankruptcy Code, or any other bankruptcy, reorganization or insolvency law
or statute, and shall remain undismissed for 30 days.
If an Event of Default under paragraphs (f) or (g) above shall occur
and be continuing, the Note shall, without further action on the part of the
holder or any other person, automatically and immediately become due and
payable. If an Event of Default under paragraphs (a), (b), (c), (d) or (e) above
shall occur and be continuing, then the holder of the Note shall have the option
(unless such event shall have been remedied) to pursue such remedies as are
permitted upon default under applicable law. In the event that the Note become
due and payable automatically as provided for in the first sentence of this
paragraph, then, subject to the subordination provisions of Section 7 of this
Agreement, the Note shall immediately mature and become due and payable without
presentment, demand, protest or further notice of any kind, all of which are
expressly waived. No delay on the part of the holder of the Note in exercising
any right, power, or privilege under this Agreement shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or
privilege preclude other or further exercise thereof or the exercise of any
other rights, power or privilege under this Agreement.
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10. Adjustment of Interest Rate and Fees. You and the Company
acknowledge that Community Shores LLC, one of the intended purchasers of a
Floating Rate Subordinated Note, intends to initially fund its purchase of a
Floating Rate Subordinated Note with a loan from Firstar Bank, N.A. that bears
interest at one-half percent (1/2%) below the per annum rate announced from time
to time by Firstar Bank as its prime rate. In the event that Community Shores
LLC is required to pay a higher rate of interest to Firstar Bank, N.A. (or
another lender) for money that it uses to fund (or continue funding) its
Floating Rate Subordinated Note, the Company agrees that during any period that
a higher rate is in effect for such funding, the Company will pay you an
additional amount as interest such that the interest rate paid on the Note will
be at a rate that is not less than two percent (2%) per annum above the rate of
interest payable by Community Shores LLC to fund its Floating Rate Subordinated
Note. In addition, to the extent that Community Shores LLC is required to pay
any fees to Firstar Bank, N.A. (or another lender) in connection with its
obtaining of money to fund (or continue to fund) its Floating Rate Subordinated
Note, the Company will upon request by Community Shores LLC, promptly reimburse
Community Shores LLC for the amount of such fees that it has paid.
11. Amendments, Waivers and Consents. Changes or additions to this
Agreement may be made, and compliance with any covenant or provision herein set
forth may be omitted or waived, if the Company shall obtain consent thereto in
writing from the holder of Note. No change in or addition to Section 7 of this
Agreement, or waiver of compliance with the provisions of Section 7, shall in
any way affect the existing rights of creditors of the Company outstanding at
the time of any such change, addition or waiver. Any consent may be given
subject to the satisfaction of conditions stated in the document setting forth
or accompanying the consent.
12. Survival of Representations and Warranties. All representations and
warranties contained in this Agreement are made in writing by the Company in
connection with the transactions contemplated by this Agreement, are made as of
the date of this Agreement, and shall survive the execution and delivery of this
Agreement and of the Note.
13. Notices. Any notice or demand which by any provision of this
Agreement is required or provided to be given shall be deemed to have been
sufficiently given or served for all purposes when actually delivered, or if
earlier, three business days after being sent by registered or certified United
States mail, return receipt requested, and postage prepaid, to the applicable
party at the address set forth opposite the signature of such party below or at
such other address with respect to either party as such party shall notify the
other in writing.
14. Benefits. All of the terms and provisions of this Agreement shall
bind and inure to the benefit of the parties to this Agreement and their
respective successors and assigns, including all assignees and subsequent
holders of the Note; provided that despite any assignment or transfer of the
Note the Company shall be
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entitled to treat as the owner of the Note the holder designated as payee on the
records maintained by the Company unless and until the Company shall have
received the tender of the Note for transfer as provided for in Section 6
hereof.
15. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Michigan, without regard to choice of
law principles of such State.
16. Counterparts. This Agreement may be executed in any number of
counterparts, each of which, when executed and delivered shall be an original,
but such counterparts shall together constitute one and the same instrument.
[The remainder of this page is intentionally left blank.]
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If you agree with the above, please sign this Agreement and return it
to the Company, at which time this Agreement will become and evidence a binding
agreement between the Company and you as of the date and year first above
written.
Very truly yours,
COMMUNITY SHORES BANK
CORPORATION
Address of Company:
0000 X. Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
By:___________________________ Attention: Chairman of the
Xxxx' X. Xxxxxxx Board, President and
Chairman of the Board, and Chief Executive
President and Chief Executive Officer Officer
PURCHASER
This Agreement is hereby accepted
and agreed to:
Address of Purchaser:
COMMUNITY SHORES LLC 0000 X. Xxxxxx Xxxxxx
Xxxxxxxxx Xxxxxxxx, Xxxxxxxx 00000
By: Xxxx' X. Xxxxxxx,
--------------------------------
Its: Manager
AMOUNT OF NOTE TO BE PURCHASED $200,000.00.
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EXHIBIT A
FORM OF FLOATING RATE SUBORDINATED NOTE
The Note shall be in substantially the form set forth in this Exhibit,
with such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by resolution of the Board of Directors of the
Company or by the officer or officers executing the Note, as evidenced by his,
her, or their execution of the Note.
No. R-______
COMMUNITY SHORES BANK CORPORATION
FLOATING RATE SUBORDINATED NOTE
DUE JUNE 30, 2006
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, THE
MICHIGAN UNIFORM SECURITIES ACT, OR THE SECURITIES LAWS OF ANY OTHER STATE. THIS
NOTE MAY NOT BE SOLD OR OTHERWISE TRANSFERRED WITHOUT REGISTRATION UNDER THE
SECURITIES ACT OF 1933, THE MICHIGAN UNIFORM SECURITIES ACT, AND ANY OTHER
APPLICABLE STATE SECURITIES LAWS, UNLESS AN EXEMPTION FROM REGISTRATION IS
AVAILABLE.
THIS NOTE IS SUBJECT TO RESTRICTIONS ON SALE, PLEDGE AND OTHER
TRANSFERS SET FORTH IN AN AGREEMENT BETWEEN THE HOLDER AND ISSUER OF THIS NOTE,
INCLUDING RESTRICTIONS REQUIRING, IN MOST CASES, THE ISSUER'S CONSENT PRIOR TO
ANY SALE, PLEDGE OR OTHER TRANSFER.
THIS NOTE IS NOT A DEPOSIT OR OTHER OBLIGATION OF COMMUNITY SHORES BANK
AND IS NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER
GOVERNMENT AGENCY. THIS NOTE IS SUBORDINATE TO THE CLAIMS OF CERTAIN OTHER
CREDITORS OF THE COMPANY, IS INELIGIBLE TO SECURE A LOAN FROM COMMUNITY SHORES
BANK, AND IS UNSECURED.
Community Shores Bank Corporation, a Michigan corporation (the
"Company"), for value received, hereby promises to pay to
or permitted registered assigns, on June 30, 2006, the principal sum of
______________________________________________ Dollars and to pay interest on
the unpaid principal amount of this Note from the date of this Note or from the
most recent Interest Payment Date to which interest hereon has been paid or duly
provided
14
for, whichever is later, quarterly in arrears on the 15th day of April, July,
October, and January (each an "Interest Payment Date") in each year commencing
on ___________ 15, 200__, at the Adjusted Firstar Prime Rate until the principal
of this Note is paid or made available for payment. The Adjusted Firstar Prime
Rate is the per annum rate announced from time to time by Firstar Bank, N.A. as
its prime rate, or if that rate is not practical to determine for any period
than during such period the prime rate prevailing at the time in the State of
Michigan, plus in either case one and one-half percent (1 1/2%) per annum.
Interest on overdue interest will be payable on demand at the rate of
ten percent (10%) per annum. During the continuance of any Event of Default (as
defined in the Purchase Agreement referred to below) the per annum rate of
interest payable on the unpaid principal balance of this Note will increase from
the Adjusted Firstar Prime Rate to two percent (2%) per annum above the Adjusted
Firstar Prime Rate.
The interest so payable and punctually paid or duly provided for on any
Interest Payment Date will be paid to the person in whose name this Note is
registered at the close of business on the Regular Record Date for such interest
which shall be the 15th day (whether or not a business day) of the calendar
month immediately preceding an Interest Payment Date, notwithstanding the
cancellation of this Note upon any transfer or exchange of this Note subsequent
to such Regular Record Date and prior to such Interest Payment Date. The
principal of and interest on this Note shall be payable at the principal office
of the Company in Muskegon County, Michigan; provided, however, that payment of
interest or principal may be made at the option of the Company by check mailed
to the address of the person entitled to the payment as such address may appear
on the Note Register. All such payments shall be made in such coin or currency
of the United States of America as at the time of payment is legal tender for
payment of public and private debts.
This Note may be prepaid in whole or in part prior to maturity, without
any prepayment fee, at any time at the election of the Company, upon at least
one (1) days prior written notice to the person in whose name this Note is
registered.
This Note is one of a duly authorized issue of subordinated notes of
the Company designated as its Floating Rate Subordinated Notes Due June 30, 2006
(the "Floating Rate Subordinated Notes"), limited in aggregate principal amount
to $4,000,000. This Note is issued under and pursuant to a Subordinated Note
Purchase Agreement dated ___________________________, by and between the Company
and the initial registered owner of this Note (the "Purchase Agreement") to
which Purchase Agreement and any amendments to it reference is made for a
description of the rights, limitations of rights, obligations, and duties of the
Company and the person in whose name this Note is registered, and the terms upon
which the Notes are, and are to be, registered and delivered.
The payment of principal of and interest on this Note is expressly
subordinated, as provided in the Purchase Agreement to the payment of any and
all Senior Debt of
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the Company, as defined in the Purchase Agreement, which includes all
obligations of the Company for borrowed or purchased money, whether outstanding
at the date of the Purchase Agreement or subsequently incurred, other than
obligations evidenced by the Company's Floating Rate Subordinated Notes that are
now outstanding or later issued. This Note is not superior in right of payment
to the other Floating Rate Subordinated Notes, but instead shall rank pari passu
with all of the other Floating Rate Subordinated Notes. This Note is issued
subject to such provisions of the Purchase Agreement, and each holder of this
Note, by accepting the same, agrees to and shall be bound by such provisions.
This Note is issuable only as a registered Note without coupons in
minimum denominations of $1,000. No service charge will be made for any transfer
or exchange of this Note, but the Company will require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
with any transfer or exchange. The Company may treat the person in whose name
this Note is registered as the owner of this Note for the purpose of receiving
payment and for all other purposes whether or not this Note is overdue, and the
Company shall not be affected by any notice to the contrary.
As provided in the Purchase Agreement and subject to certain
limitations set forth in the Purchase Agreement, this Note is transferable on
the Note Register of the Company, upon surrender of this Note for transfer at
the principle office of the Company in Muskegon County, Michigan, duly endorsed
by, or accompanied by a written instrument of transfer in form satisfactory to
the Company, duly executed by, the registered holder of this Note.
The interest rate payable on this Note may be increased under certain
circumstances as provided for in Section 10 of the Purchase Agreement.
No reference in this Note to the Purchase Agreement and no provisions
of this Note or of the Purchase Agreement shall alter or impair the obligation
of the Company, which is absolute and unconditional, to pay, the principal of
and interest on this Note at the time and place, at the rate and in the currency
prescribed in this Note.
Community Shores Bank Corporation has caused this Note to be executed
in its corporate name by the manual signature of its duly authorized officer.
Date: __________________
COMMUNITY SHORES BANK CORPORATION
BY: ___________________________________
ITS: _____________________________
