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EXHIBIT 10(B)(2)
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LOAN AGREEMENT
By and Between
THE COLONIAL BANCGROUP, INC.
(the Company)
AND
SUN BANK NATIONAL ASSOCIATION
(the Bank)
August 29, 1995
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TABLE OF CONTENTS
(The Table of Contents for this Loan Agreement is for convenience of reference
only and is not intended to define, limit or describe the scope or intent of
any provisions of this Loan Agreement.)
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ARTICLE ONE
DEFINITIONS AND ACCOUNTING TERMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
SECTION 1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
SECTION 1.2 Accounting Terms; Testing of Financial
Ratios . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 1.3 Subsidiary Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE TWO
AMOUNT AND TERM OF THE LOAN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 2.1 The Loan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 2.2 Interest on The Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 2.3 Prepayment of the Loan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 2.4 Calculation of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 2.5 Place of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 2.6 Set-Off . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 2.8 Application of Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 3.1 Organization, Corporate Powers, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 3.2 Authorization of Loan, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 3.3 Tax Returns and Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 3.4 Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 3.5 Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 3.6 Changes in Financial Conditions; Adverse
Developments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 3.7 Litigation, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 3.8 Principal Place of Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 3.9 Consents and Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 3.10 Title to Properties and Assets, Liens,
Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 3.11 Outstanding Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 3.12 Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 3.13 Regulation G, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE FOUR
COVENANTS OF THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 4.1 Affirmative Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 4.2 Negative Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE FIVE
CONDITIONS OF LENDING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 5.1 Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 5.2 No Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 5.3 Loan Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 5.4 Supporting Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
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ARTICLE SIX
EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE SEVEN
RIGHTS UPON DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 7.1 Acceleration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 7.2 Right of Setoff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 7.3 Other Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 7.4 Uniform Commercial Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
ARTICLE EIGHT
MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 8.1 Cumulative Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 8.2 Amendments, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 8.3 Addresses for Notices, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 8.4 Applicable Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 8.5 Survival of Representations and
Warranties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 8.6 Time of the Essence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 8.7 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 8.8 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 8.9 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 8.10 Conflict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 8.11 Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 8.12 Cross Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 8.13 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 8.14 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 8.15 Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 8.16 No Third Party Beneficiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 8.17 Waiver of Jury Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 8.18 No Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 8.19 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
LIST OF SUBSIDIARIES . . . . . . . . . . . . . . . . . . . . . . . 27
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LOAN AGREEMENT
THIS LOAN AGREEMENT is made and entered into this 29th
day of August, 1995, by and between:
THE COLONIAL BANCGROUP, INC., a Delaware corporation, ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter
referred to as the "Company");
and
SUN BANK, NATIONAL ASSOCIATION, a national banking
association, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter referred to as the "Bank").
W I T N E S S E T H:
WHEREAS, the Company has requested the Bank to extend a line of credit
loan to it up to the maximum principal amount of $15,000,000; and
WHEREAS, the Bank is willing to make such loan upon the terms and
conditions set forth in this Agreement;
NOW, THEREFORE, for and in consideration of the above premises and the
mutual covenants and agreements contained herein, the Company and the Bank
agree as follows:
ARTICLE ONE
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1 Definitions. For the purposes of this Agreement, the
following terms shall have the respective meanings specified in this Section
1.1 (such meanings to be equally applicable to both the singular and plural
forms of the terms defined):
"Agreement" shall mean this Loan Agreement as originally executed by
the parties hereto and all permitted amendments, modifications and restatements
hereof.
"Average Total Assets" shall mean twenty-five percent (25%) of the
aggregate sum of the Company's consolidated total assets as indicated on the
Company's four (4) most recent quarterly financial statements submitted
pursuant to Section 4.1 hereof.
"Banking Day" shall mean any day other than a Saturday, Sunday or Day
on which commercial banks are authorized to close under the laws of State of
Florida.
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"Collateral" shall mean one hundred percent (100%) of all of the
issued and outstanding shares of common stock of all present and future
Subsidiaries of the Company.
"Day" shall mean a calendar day, unless the context
indicates otherwise.
"Default Rate" shall mean the lesser of (i) twenty-five percent (25%)
per annum or (ii) the highest rate of interest permitted from time to time by
applicable law.
"Dollars" shall mean lawful money of the United States of America.
"Due Date" shall mean the date any payment of principal or interest is
due and payable on the Loan or Note.
"Event of Default" shall mean an event of default specified in Article
Six of this Agreement.
"GAAP" shall mean generally accepted accounting principles
consistently applied to the particular item.
"Interest Period" shall mean any interest period applicable to the
Loan as determined pursuant to Section 2.2 hereof.
"Interest Rate" shall mean the applicable interest rate as determined
pursuant to Section 2.2 hereof; provided, however, the Interest Rate shall
never exceed the maximum rate allowed by law from time to time.
"Interest Rate Determination Date" shall mean each date for
calculating the LIBOR for purposes of determining the interest rate in respect
of an Interest Period. The Interest Rate Determination Date shall be the
Banking Day prior to the first Day of the related Interest Period.
"LIBOR" shall mean, with respect to any Interest Period, the thirty
(30) Day, sixty (60) Day, ninety (90) Day or one hundred eighty (180) Day LIBOR
Rate (in accordance with the length of the designated Interest Period) in
effect on the Interest Rate Determination Date as published from time to time
in Telerate or such other publication as may be designated by the Bank from
time to time.
"Liabilities" shall mean all liabilities and obligations of the
Company, all as determined in accordance with GAAP.
"Loan" shall mean the revolving line of credit loan made by the Bank
to the Company pursuant to the terms of this Agreement.
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"Loan Documents" shall mean this Agreement, the Note, the First
Amendment to Pledge Agreement, and all of the other documents, agreements,
certificates, schedules, notes, statements and opinions, however described,
referenced herein or executed or delivered pursuant hereto or in connection
with or arising with the Loan or the transactions contemplated by this
Agreement.
"Margin Securities" shall mean any margin securities within the
meaning of Regulation G of the Board of Governors of the Federal Reserve System
(12 C.F.R. Part 207).
"Maturity Date" shall mean (i) August 29, 1997 or (ii) the earlier
occurrence of an Event of Default.
"Net Income" shall mean, for any period, the aggregate of the net
income of the Company, determined in accordance with GAAP.
"Net Loans" shall mean the sum of Company's (i) total loans less
unearned income, (ii) Other Real Estate and (iii) repossessions, less (iv)
mortgages held for sale in the ordinary course of business.
"Non-accrual Loans" shall mean loans in which the accrual of interest
has been discontinued due to a deterioration in the financial condition of any
borrower.
"Nonperforming Assets" shall mean the sum of the Company's (i)
Non-accrual Loans, (ii) Other Real Estate, (iii) Restructured Loans and (iv)
repossessions.
"Nonperforming Assets to Net Loans Ratio" shall mean the ratio of
Company's Nonperforming Assets to its Net Loans calculated as set forth in
Section 1.2 of this Agreement.
"Note" shall mean the Company's promissory note evidencing the Loan
together with all amendments, modifications, supplements or renewals thereto or
thereof.
"Obligations", with respect to the Company, shall mean, individually
and collectively, all payment and performance duties, obligations and
liabilities of the Company to the Bank, however and whenever incurred, acquired
or evidenced, whether primary or secondary, direct or indirect, absolute or
contingent, sole or joint and several, or due or to become due, including,
without limitation, all such duties, obligations and liabilities of the Company
to the Bank, under and pursuant to the Loan Documents and all renewals,
modifications or extensions of any thereof.
"Other Real Estate" shall mean real estate acquired by the Company or
any of the Subsidiaries as a result of a deterioration in the financial
position of any borrower.
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"Person" shall mean any individual, joint venturer, partnership, firm,
corporation, trust, unincorporated organization or other organizational entity,
or a governmental body or any department or agency thereof, and shall include
both the singular and the plural.
"Pledge Agreement" shall mean, collectively, that certain Pledge
Agreement dated August 6, 1993 and that certain First Amendment to Pledge
Agreement dated of even date herewith executed by the Company in favor of the
Bank pledging the Collateral, together with all amendments and modifications
thereof.
"Primary Capital" shall mean the sum of Company's (i) total equity
capital, (ii) allowance for loan and lease losses and (iii) minority interests
in consolidated Subsidiaries.
"Primary Capital to Total Assets Ratio" shall mean the ratio of
Company's Primary Capital to its total assets calculated as set forth in
Section 1.2 of this Agreement.
"Principal Place of Business" shall mean the principal place of
business and the headquarters of the Company at which all of its records are
kept which is noted in the preamble of this Agreement.
"Restructured Loans" shall mean loans classified as restructured on
the Company financial statements, in accordance with the requirements of the
Federal Deposit Insurance Corporation.
"Return on Assets Ratio" shall mean the ratio of Company's Net Income
for the current quarter and preceding three (3) quarters to its Average Total
Assets calculated as set forth in Section 1.2 of this Agreement.
"Subsidiary" or "Subsidiaries" shall mean, individually or
collectively, as the context may require, any national or state banking
association, corporation or other entity whose assets and income are at any
time includible in the financial statements of the Company in accordance with
GAAP, and shall include subsidiaries of a Subsidiary.
"UCC" shall mean the Florida Uniform Commercial Code, Chapters 671 to
680, inclusive.
SECTION 1.2 Accounting Terms; Testing of Financial Ratios. All
accounting terms used herein shall be construed in accordance with GAAP and all
financial data submitted pursuant to this Agreement shall be prepared in
accordance with GAAP. In the event of ambiguities in GAAP, the more
conservative principle or interpretation shall be used. All financial ratios
and covenants contained herein shall be tested quarterly, as at the end of each
fiscal quarter of the Company, commencing with the fiscal quarter ending as at
June 30, 1995. Compliance with such ratios and
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covenants shall be tested on a "rolling four (4) quarters" basis by calculating
the average of each such ratio for the most recently ended fiscal quarter and
the three (3) fiscal quarters immediately preceding the most recently ended
fiscal quarter.
SECTION 1.3 Subsidiary Compliance. Whenever the term "Company"
is used throughout this Agreement, it shall mean to include, if applicable in
the context as so used, the Subsidiaries such that the Company and each of the
Subsidiaries shall perform, be in compliance with or otherwise discharge the
applicable term or condition of this Agreement.
ARTICLE TWO
AMOUNT AND TERM OF THE LOAN
SECTION 2.1 The Loan. Upon the execution hereof and the
Company's compliance with the terms of Article Five hereof, the Bank shall
extend to the Company, subject to the terms and conditions set forth in this
Agreement, a revolving line of credit loan in the maximum principal amount of
Fifteen Million Dollars ($15,000,000.00). During the term of the Loan, and
provided the Loan is not in default, the sums borrowed under the Note may from
time to time be repaid, in full or in part, and thereafter reborrowed.
SECTION 2.2 Interest on The Note. The Loan shall be evidenced by
the Note and shall be due and payable in accordance with and as required by
Section 2.7. The Note shall bear interest from the date thereof on the unpaid
principal balance thereof from time to time outstanding as follows:
(a) The Interest Rate for each Interest Period shall be:
(i) floating at the Prime Rate; or
(ii) floating at one and one-half (1 1/2) percentage
points (i.e., 150 basis points) in excess of the
thirty (30) Day, sixty (60) Day, ninety (90) Day,
one hundred twenty (120) Day or one hundred eighty
(180) Day LIBOR; or
(iii) fixed at one and one-half (1 1/2) percentage
points (i.e., 150 basis points) in excess of the
annual yield on the highest yielding United States
Treasury issue maturing in the calendar month closest
to the maturity date of the Note, as published in the
Wall Street Journal on the fifth (5th) Banking Day
prior to selection of this rate.
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(b) The Interest Rate set forth in a) (i) and (iii)
above, shall be selected by the Company for thirty (30) day Interest Periods
only.
(c) The Interest Rate set forth in a) (ii) above, shall
be determined with reference to the LIBOR for the Interest Period selected.
(d) The Company shall give the Bank notice (in writing or
by telephone confirmed in writing) of the selection of the applicable Interest
Rate at least five (5) Banking Days prior to the end of the next preceding
Interest Period. If the Company does not so provide notice to the Bank of the
selection of any Interest Rate, then the Company's selection for the
immediately preceding Interest Period shall carry over until changed by the
Company in accordance with the procedure contained in this Article 2.2.
(e) Each Interest Period shall commence on the Day on
which the next preceding Interest Period expires unless any Interest Period
would otherwise expire on a Day which is not a Banking Day, in which event it
shall be extended to expire on the next succeeding Banking Day; provided, that
if any Interest Period would otherwise expire on a Day which is not a Banking
Day, but is a day of the month after which no further Banking Day occurs in
that month, that Interest Period shall expire on the next preceding Banking
Day. Any Interest Period which begins on the last Banking Day of a calendar
month (or on a day for which there is no numerically corresponding day on the
calendar month at the end of such Interest Period) shall end on the last
Banking Day of a calendar month.
(f) As soon as practicable after 11:00 a.m. (Orlando,
Florida time) on each Interest Rate Determination Date, the Bank shall
determine (which determination shall, absent manifest error, be final,
conclusive and binding upon all parties) the Interest Rate which shall apply
for the next succeeding Interest Period and shall promptly give notice thereof
(in writing or by telephone confirmed in writing) to the Company.
From and after the Due Date, interest shall accrue on the unpaid
principal balance of the Loan and on all accrued but unpaid interest thereon,
or on such defaulted payment, from the Due Date at the Default Rate. Such
interest shall continue to accrue until the date of payment in full of all
principal and accrued but unpaid interest of such defaulted payment, if
applicable.
SECTION 2.3 Prepayment of the Loan. The Company may prepay all
or any part of the principal amount of the Loan outstanding; provided, however,
that each permitted partial prepayment shall be applied to the reduction of the
Loan, in such manner as the Bank may, in its sole discretion, elect and,
further provided, that on the date of the prepayment, there shall exist no
Default and all
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accrued but unpaid interest on the amount of the prepayment through the
prepayment date, whether or not due and payable, shall be paid in full prior to
any prepayment. Each prepayment other than full payment shall be made prior to
2:00 p.m. (Orlando time) on the date of the prepayment, and shall be made on a
Banking Day in immediately available funds. Any prepayment made by the Company
shall be applied to amounts due under the Loan in such manner as the Bank may
designate in its absolute discretion.
SECTION 2.4 Calculation of Interest. Any interest due on the
Loan or any other Obligations shall be calculated on the basis of a year
containing 365 Days. The interest due on any date for payment of interest
hereunder shall be that interest to the extent accrued as of midnight on the
last Day immediately prior to that interest payment date. Notwithstanding
anything herein or in any Loan Document to the contrary, the sum of all
interest and all other amounts deemed interest under Florida or other
applicable law which may be collected by the Bank hereunder shall not exceed
the maximum lawful interest rate permitted by such law from time to time. The
Bank and the Company intend and agree that under no circumstance shall the
Company be required to pay interest on the Loan or on any other Obligations at
a rate in excess of the maximum interest rate permitted by applicable law from
time to time, and in the event any such interest is received or charged by the
Bank in excess of that rate, the Company shall be entitled to an immediate
refund of any such excess interest by a credit to and payment toward the unpaid
balance of the Loan (such credit to be considered to have been made at the time
of the payment of the excess interest) with any excess interest not so credited
to be immediately paid to the Company by the Bank.
SECTION 2.5 Place of Payment. All payments by the Company under
the Loan Documents shall be made to the Bank at its banking house at Orlando,
Florida, in lawful money of the United States of America and in immediately
available funds.
SECTION 2.6 Set-Off. The Company hereby grants to the Bank a
lien on, and a security interest in, the deposit balances, accounts, items,
certificates of deposit and monies of the Company in the possession of or on
deposit with the Bank to secure and as collateral for the payment and
performance of the Obligations. Upon default, the Bank may at any time and
from time to time, without demand or notice, appropriate and set-off against
and apply the same to the Obligations when and as due and payable.
SECTION 2.7 Payment of Note. The Company shall pay the Note
together with interest at the rate determined in accordance with Section 2.2
as follows:
(a) Interest on the unpaid principal amount of the Note
shall be payable quarterly on the last Day of each quarter during the term of
this Agreement, commencing September 30, 1995 and
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continuing on the same Day of each and every succeeding quarter during the term
hereof until the Maturity Date.
(b) The outstanding principal balance of the Loan,
together with all accrued but unpaid interest, shall be payable in full on the
Maturity Date.
SECTION 2.8 Application of Payments. All payments made on the
Note shall be applied first to interest accrued to the date of payment and next
to the unpaid principal balance; provided, however, in the event an Event of
Default occurs, payments shall be applied first to any costs or expenses,
including attorneys fees, that the Bank may incur in exercising its rights
under the Loan Documents, as the Bank may determine.
ARTICLE THREE
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Bank that:
SECTION 3.1 Organization, Corporate Powers, Etc.
(a) The Company (i) is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware,
(ii) has all requisite power and authority, corporate and otherwise, to own its
properties and assets and to carry on its business as now conducted and
proposed to be conducted, (iii) is duly qualified to do business and is in good
standing in every jurisdiction in which the character of its properties or
assets owned or the nature of its activities conducted makes such qualification
necessary, and (iv) has the corporate power and authority to execute and
deliver, and to perform its obligations under this Agreement, the Note, the
Pledge Agreement and the other Loan Documents.
(b) Each Subsidiary (i) is a duly organized, validly
existing corporation and in good standing under the laws of the United States
of America in the jurisdiction in which formed, (ii) has all requisite power
and authority, corporate and otherwise, to own its properties and assets and to
carry on its business as now conducted and proposed to be conducted, (iii) is
duly qualified to do business and is in good standing in every jurisdiction in
which the character of its properties or assets owned or the nature of its
activities conducted makes such qualification necessary, and (iv) has the
corporate power and authority to execute and deliver, and to perform its
obligations under those Loan Documents to which it is a party.
SECTION 3.2 Authorization of Loan, Etc. The execution, delivery
and performance of the Loan Documents by the Company (a)
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have been duly authorized by all requisite corporate action (no shareholder
action being required pursuant to applicable law) and (b) will not (i) violate
(1) any provision of law, any governmental rule or regulation, any order of any
court or other agency of government or the Articles of Incorporation or bylaws
of the Company or (2) any provision of any indenture, agreement or other
instrument to which the Company is a party or by which it or any of its
properties or assets are bound, (ii) be in conflict with, result in a breach of
or constitute (with due notice or lapse of time or both) a default under any
such indenture, agreement or other instrument, or (iii) result in the creation
or imposition of any lien, charge or encumbrance of any nature whatsoever upon
any of the properties or assets of the Company other than as permitted by the
terms hereof.
SECTION 3.3 Tax Returns and Payments. All federal, state and
local tax returns and reports of the Company required to be filed have been
filed, and all taxes, assessments, fees and other governmental charges upon the
Company, or upon any of its properties, assets, incomes or franchises, which
are due and payable in accordance with such returns and reports, have been
paid, other than those presently (a) payable without penalty or interest, or
(b) contested in good faith and by appropriate and lawful proceedings
prosecuted diligently. The aggregate amount of the taxes, assessments, charges
and levies so contested is not material to the condition (financial or
otherwise) and operations of the Company. The charges, accruals, and reserves
on the books of the Company in respect of federal, state and local taxes for
all fiscal periods to date are adequate and the Company knows of no other
unpaid assessment for additional federal, state or local taxes for any such
fiscal period or of any basis therefor.
SECTION 3.4 Agreements.
(a) The Company is not a party to any agreement,
indenture, lease or instrument or subject to any charter or other corporate
restriction or any judgment, order, writ, injunction, decree, rule or
regulation materially and adversely affecting its business, properties, assets,
operations or condition (financial or otherwise). There are no unrealized
losses with respect to any such agreement, indenture, lease or instrument.
(b) The Company is not in default in the performance,
observance or fulfillment of any of the material obligations, covenants or
conditions contained in any material agreement or instrument to which it is a
party.
SECTION 3.5 Financial Statements. The Company has furnished the
Bank with its financial statements as of December 31, 1994. Such financial
statements are true and correct in all material respects. There has been no
material adverse change in the business, condition or operations (financial or
otherwise) of
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the Company and the Subsidiaries taken as a whole since the date of the
financial statements referred to above.
SECTION 3.6 Changes in Financial Conditions; Adverse
Developments. From the date of the annual financial statements referenced in
Section 3.5 hereof, to the date of this Agreement, there has been no change in
the properties, assets, liabilities, financial condition, business, operations,
affairs or prospects of the Company and the Subsidiaries from that set forth or
reflected in the Company's most recent federal income tax return or in the
fiscal year-end financial statements referred to in Section 3.5. other than
changes in the ordinary course of business, including acquisitions, none of
which have been, either in any case or in the aggregate, materially adverse.
SECTION 3.7 Litigation, Etc. Except as noted in the financial
statements there are no actions, proceedings or investigations pending or
threatened, against the Company or affecting the Company (or any basis therefor
known to the Company) which, either in any case or in the aggregate, might
result in any material adverse change in the financial condition, business,
prospects, affairs or operations of the Company or in any of its properties or
assets, or in any material impairment of the right or ability of the Company to
carry on its operations as now conducted or proposed to be conducted, or in any
material liability on the part of the Company and none which questions the
validity of this Agreement, the Note, the Pledge Agreement or any of the other
Loan Documents or of any action taken or to be taken in connection with the
transactions contemplated hereby or thereby.
SECTION 3.8 Principal Place of Business. The Principal Place of
Business of the Company is at the address noted in the preamble of this
Agreement.
SECTION 3.9 Consents and Approvals. No authorization, license,
consent, approval, or undertaking is required under any applicable law in
connection with the execution, delivery and performance by the Company of this
Agreement, the Note or any of the other Loan Documents.
SECTION 3.10 Title to Properties and Assets, Liens, Etc. The
Company has good and marketable title to its respective real properties other
than properties which it leases and good title to all of its other personal
property and assets including, but not limited to the Collateral, subject to no
encumbrances, liens, security interests or other rights of third parties except
as previously disclosed to the Bank in the financial statements provided to the
Bank. The Company enjoys peaceful and undisturbed possession of all leases
necessary in any material respect for the operation of its properties and
assets, none of which contains any unusual or burdensome provisions which might
materially affect or
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impair the operation of such properties and assets. All such leases are valid
and subsisting and are in full force and effect.
SECTION 3.11 Outstanding Debt. On the date hereof, the Company
has no outstanding indebtedness except as reflected on the financial statements
of the Company which have been provided to the Bank.
SECTION 3.12 Subsidiaries. The only presently existing
Subsidiaries of the Company are those listed on Exhibit "A" attached hereto.
SECTION 3.13 Regulation G, Etc. The Company does not own any
Margin Securities. Neither the Company nor the Subsidiaries nor any agent
acting on behalf of the Company or the Subsidiaries has taken any action that
might cause this Agreement or the Loan Documents 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 Act of 1933 or the Securities Act of 1934,
in each case as the same is now in effect or as the same may hereafter be in
effect.
ARTICLE FOUR
COVENANTS OF THE COMPANY
SECTION 4.1 Affirmative Covenants. The Company covenants, for so
long as any of the principal amount of or interest on the Note is outstanding
and unpaid or any duty or obligation of the Company or the Bank hereunder or
under any other Obligation remains unpaid or unperformed, as follows:
(a) Accounting; Financial Statements; Etc. The Company
will deliver to the Bank copies of each of the following:
(i) As soon as practicable and in any event
within forty-five (45) Days after the end of each quarterly period during the
term of this Agreement, financial statements, all in reasonable detail and
certified by the Chief Financial Officer of the Company;
(ii) As soon as practicable and in any event
within ninety (90) Days after the end of each fiscal year, year end audited
financial statements (consisting of profit and lose statement, balance sheet
and report on changes in stockholders equity) that are reviewed by a certified
public accountant acceptable to the Bank, all in reasonable detail and
certified by the Chief Financial Officer of the Company;
(iii) Promptly upon the preparation thereof, copies
of all quarterly call reports submitted by the Subsidiaries to the appropriate
federal regulatory agency;
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(iv) Promptly upon transmission thereof, copies of
all such financial statements, proxy statements, notices, and reports as it
shall send to its stockholders and of all registration statements (with
exhibits) and all reports which it is or may be required to file with the
Securities and Exchange Commission or any governmental body or agency
succeeding to the functions of such Commission;
(v) Promptly upon receipt thereof, a copy of each
other report submitted to the Company or any Subsidiary by independent
accountants in connection with any annual, interim or special audit made by
them of the books of the Company or any Subsidiary;
(vi) With reasonable promptness, such other data
and information as from time to time may be reasonably required by the Bank.
(b) Inspection. The Company will permit the Bank or
Bank's designated representative to (i) visit any place of business, (ii)
inspect its properties, (iii) inspect and make extracts from the Company's
books and records, and (iv) discuss the affairs, finances and accounts of the
Company with the officers of the Company, all at such reasonable times and as
often as may reasonably be requested.
(c) Maintenance of Corporate Existence; Compliance with
Laws. The Company shall at all times preserve and maintain in full force and
effect its corporate existence, powers, rights, licenses, permits and
franchises in the jurisdiction of its incorporation; continue to conduct and
operate its business substantially as conducted and operated during the present
and preceding fiscal year of the Company; operate in full compliance with all
applicable laws, statutes, regulations, certificates of authority and orders in
respect of the conduct of its business; and qualify and remain qualified as a
foreign corporation in each jurisdiction in which such qualification is
necessary or appropriate in view of its business and operations.
(d) Notice of Default. The Company shall immediately
notify the Bank in writing upon the happening, occurrence or existence of any
Event of Default, or any event or condition which with the passage of time or
giving of notice, or both, would constitute an Event of Default, and shall
provide the Bank with such written notice, a detailed statement by a
responsible officer of the Company of all relevant facts and the action being
taken or proposed to be taken by the Company with respect thereto.
(e) Maintenance of Properties. The Company shall
maintain or cause to be maintained in good repair, working order and condition
all properties used or useful in its businesses and from time to time will make
or cause to be made all appropriate
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repairs, renewals, improvements and replacements thereof so that the businesses
carried on in connection therewith may be properly and advantageously conducted
at all times. The Company will not do or permit any act or thing which might
impair the value or commit or permit any waste of its properties or any part
thereof (other than acts of nature beyond their control), or permit any
unlawful occupation, business or trade to be conducted on or from any of its
properties. To the extent the Company leases any of its places of business, it
shall maintain and keep current at all times all leases for said places of
business.
(f) Notice of Suit, Proceedings, Adverse Change. The
Company shall promptly give the Bank notice in writing (a) of all threatened or
actual actions or suits (at law or in equity) and of all threatened or actual
investigations or proceedings by or before any court, arbitrator or any
governmental department, commission, board, bureau, agency or other
instrumentality, state, federal or foreign, affecting the Company or its
Subsidiaries, the rights or other properties of the Company or its
Subsidiaries, (i) which involves potential liability of the Company in an
amount of $2,500,000 or more, or (ii) which the Company believes in good faith
is likely to materially and adversely affect the financial condition of the
Company or to impair the right or ability of the Company to carry on its
businesses as now conducted or to pay the Obligations or perform the duties
under the Loan Documents; (b) of any material adverse change in the condition
(financial or otherwise) of the Company; (c) of any seizure or levy upon any
part of the properties of the Company or its Subsidiaries under any process or
by a receiver and (d) of any memorandum of understanding, cease and desist
order or similar action taken by any state or federal regulatory against the
Company or any of its Subsidiaries.
(g) Execution and Delivery of Loan Documents. The
Company shall execute and deliver to the Bank all Loan Documents (to be
executed by the Company) as and when requested by the Bank.
(h) Insurance. The Company shall timely procure and
maintain and comply with such insurance and policies of insurance (including
without limitation public liability insurance) as may be required by law and
such other insurance including, but not limited to, coverage of real property
and improvements, to such extent and against such hazards and liabilities, as
is customarily maintained by companies similarly situated, or as the Bank may
from time to time reasonably request, and, if requested by the Bank, to furnish
to the Bank a certificate of said insurance and further providing for thirty
(30) Days notice to the Bank prior to any material amendment, expiration or
cancellation.
(i) Debts and Taxes and Liabilities. Except for
indebtedness, obligations, taxes, assessments, governmental charges and claims,
the amount or validity of which is contested by the
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Company in good faith and by appropriate and lawful proceedings prosecuted
diligently (the aggregate amount of which items shall not be material to the
condition (financial or otherwise) and operations of the Company), the Company
shall pay and discharge (i) all of its indebtedness and obligations in
accordance with their terms and before they shall become in default, (ii) all
taxes, assessments and governmental charges or levies imposed upon it or upon
its income and profits or against its properties, prior to the date on which
penalties attach thereto, and (iii) all lawful claims which, if unpaid, might
become a lien or charge upon any of its properties. The Company shall also set
aside and/or pay as and when due all monies required to be set aside and/or
paid by any federal, state or local statute or agency in regard to F.I.C.A.,
withholding, sales or excise or other similar taxes.
(j) Notification of Change of Name or Business. The Company shall
notify the Bank of each change in the name of the Company and of each change of
the location of any place of business and the office where the records of the
Company are kept, and, in such case, shall execute such documents as the Bank
may reasonably request to reflect said change of name or change of location, as
the case may be; provided, however, the Principal Place of Business of the
Company and the office where the records of the Company are kept may not be
kept out of or removed from Montgomery County, Alabama without the prior
written consent of the Bank.
(k) Financial Covenants. As at the end of each of the Company's
fiscal quarters, commencing with the fiscal quarter ending September 30, 1993,
the Company shall comply with the following financial covenants:
(i) The Company shall maintain a Primary Capital to Total
Assets Ratio of at least 0.065 to 1.0, or shall maintain total risk-based
capital of at least 10.0%; and
(ii) The Company shall maintain a Return on Assets Ratio of at
least (A) 0.009 to 1.0 through its fiscal year ending in 1995 and (B) 0.0095 to
1.0 thereafter; and
(iii) The Company shall maintain a Nonperforming Assets to
Net Loans Ratio of less than 0.015 to 1.0.
Compliance with each of the financial covenants contained in this
Section 4.1(k) shall be calculated in the manner set forth in Section 1.2 of
this Agreement.
SECTION 4.2 Negative Covenants. The Company covenants, for so
long as any of the principal amount of or interest on the Note is outstanding
and unpaid or any Obligation remains unpaid or unperformed, as follows:
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(a) Sale of Assets. The Company will not sell, lease,
assign, transfer, convey or otherwise dispose of its assets or properties,
tangible or intangible, without prior written notice to the Bank other than the
sale of mortgages in the usual course of business, or permit any of its
Subsidiaries to do the same; provided, however, in the event the Company or any
of its Subsidiaries propose to sell certain real estate equities which it or
they now or at any time during the term hereof own or acquire in connection
with conducting its or their respective business operations, the Bank shall not
unreasonably withhold approval with respect to the sale of any such real estate
equities, such prior notice shall not be required for assets having a book
value of less than $1,000,000 per transaction.
(b) Acquisition or Mergers. During the term of this
Agreement, the Company shall notify the Bank in writing of any Company
acquisition, merger or consolidation with any other Person, provided however,
the Company shall not, without the Bank's prior written consent, which consent
shall not be unreasonably withheld, become a party to a merger or consolidation
with any other Person in which the Company is not the surviving entity.
(c) Fiscal Year. The Company will not change its fiscal
year ending December 31, without reasonable notice to the Bank.
(d) Changes in Business. The primary business of the
Company will not change from that conducted by it on the date of this Agreement
without the consent of the Bank.
(e) Other Agreements. The Company will not enter into
any arrangements, contractual or otherwise, which would materially and
adversely affect its duties or the rights of the Bank under the Loan Documents,
or which is inconsistent with or limits or abrogates the Loan Documents.
(f) Additional Indebtedness. The Company and/or any
Subsidiary shall not create or assume any liability for money borrowed or the
equivalent in excess of the aggregate amount of $10,000,000.00 during the term
of this Agreement, except for real estate assets pledged to the Federal Home
Loan Bank Board of Atlanta in the usual course of business, the indebtedness
permitted by this Agreement, indebtedness that is subordinated to the
Obligations and indebtedness that results from the sale of commercial paper or
similar short term borrowings that arise in the normal and ordinary course of
business.
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ARTICLE FIVE
CONDITIONS OF LENDING
The obligations of the Bank to lend hereunder and to make any Advance
from time to time are subject to the following conditions precedent:
SECTION 5.1 Representations and Warranties. The representations
and warranties set forth in the Loan Documents are true and correct on and as
of the date hereof, and on the date of each Advance or disbursement hereunder.
SECTION 5.2 No Default. On the date hereof and on the date of
each Advance or disbursement, the Company shall be in compliance with all the
terms and provisions set forth in the Loan Documents on its part to be observed
or performed, and no Event of Default nor any event that, upon notice or lapse
of time or both, would constitute such an Event of Default, shall have occurred
and be continuing at such time.
SECTION 5.3 Loan Documents. The Company shall have delivered or
caused to be delivered to the Bank, in fully executed form, all the Loan
Documents, in form and substance satisfactory to the Bank, as the Bank may
request and all of the Loan Documents shall be in full force and effect.
SECTION 5.4 Supporting Documents. On or prior to the date
hereof, the Bank shall have received the following supporting documents, all of
which shall be satisfactory in form and substance to the Bank:
(a) a certificate or certificates, dated as of the date
hereof, of (i) the Secretary or any Assistant Secretary of the Company
certifying (A) that attached thereto is a true and correct copy of certain
resolutions adopted by the Board of Directors of the Company authorizing the
execution, delivery and performance of the Loan Documents and the performance
of the obligations of the Company and the borrowings thereunder, which
resolutions have not been altered or amended in any respect, and remain in full
force and effect at all times since their adoption; (B) that attached thereto
is a true and correct copy of the Certificate of Incorporation of the Company,
and that such Certificate of Incorporation has not been altered or amended, and
no other charter documents have been filed, since the date of the filing of the
last amendment thereto or other charter document as indicated on the
certificate of the Secretary of State of the State of Florida or other
appropriate public official in any other state of incorporation attached
thereto; (C) that attached thereto is a true and correct copy of the Bylaws of
the Company and that such Bylaws are in full force and effect and no amendment
thereto is pending which would in any way affect the ability of the Company to
enter
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into and perform the obligations contemplated hereby; and (D) the incumbency
and signatures of the officers of the Company signing the Loan Documents and
any report, certificate, letter or other instrument or document furnished by
the Company in connection therewith, and (ii) another authorized officer of the
Company certifying the incumbency and signature of the Secretary or Assistant
Secretary of the Company; and
(b) a certificate or certificates of the Delaware
Secretary of State or other appropriate public official in any other state of
incorporation, dated as of a recent date, as to the good standing of the
Company.
ARTICLE SIX
EVENTS OF DEFAULT
SECTION 6.1 Events of Default. The following each and all are
Events of Default hereunder:
(a) Monetary Default. If the Company shall default in
any payment of the principal of or interest on the Loan when and as the same
shall become due and payable, whether at maturity, by acceleration at the
discretion of the Bank or otherwise; or
(b) Non-Monetary Default. If the Company or any of the
Subsidiaries shall default in the performance of or compliance with any term or
covenant contained in the Loan Documents which default or non-compliance shall
continue and not be cured within ten (10) Days of the occurrence thereof; or
(c) Third Party Default. If the Company or any
Subsidiary shall suffer a material default in the performance of any agreement
with any Person other than the Bank; or
(d) Misrepresentation. If any representation or warranty
made in writing by or on behalf of the Company or any Subsidiary or in any
other Loan Document shall prove to have been false or incorrect in any material
respect on the date as of which made or reaffirmed; or
(e) Dissolution. Any order, judgment, or decree is
entered in any proceedings against Company or any Subsidiary decreeing the
dissolution of Company or any Subsidiary and such order, judgment, or decree
remains unstayed and in effect for more than thirty (30) days; or
(f) Default Under Pledge Agreement. If the Company fails
to fulfill or comply with the terms of the Pledge Agreement or there shall be a
default under the Pledge Agreement.
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(g) Bankruptcy, Failure to Pay Debts, Etc. If the
Company or any Subsidiary shall admit in writing its inability, or be generally
unable, to pay its debts as they become due or shall make an assignment for the
benefit of creditors, file a petition in bankruptcy, petition or apply to any
tribunal for the appointment of a custodian, receiver or trustee for the
Company or any Subsidiary or a substantial part of assets, or shall commence
any proceeding under any bankruptcy, reorganization, arrangement, readjustment
of debt, dissolution or liquidation law or statute of any jurisdiction, whether
now or hereafter in effect, or if there shall have been filed any such petition
or application, or any such proceeding shall have been commenced against the
Company or any Subsidiary, in which an order for relief is entered or which
remains undismissed for a period of thirty (30) Days or more, or the Company or
any Subsidiary by any act or omission shall indicate its consent to, approval
of or acquiescence in any such petition, application, or proceeding or order
for relief or the appointment of a custodian, receiver or any trustee for the
Company or any Subsidiary or any substantial part of any of its properties, or
shall suffer any such custodianship, receivership or trusteeship to continue
undischarged for a period of thirty (30) Days or more; or
(h) Fraudulent Conveyance. The Company or any Subsidiary
shall have concealed, removed, or permitted to be concealed or removed, any
part of its properties, with intent to hinder, delay or defraud its creditors
or any of them, or made or suffered a transfer of any of its properties which
may be fraudulent under any bankruptcy, fraudulent conveyance or similar law,
or shall have made any transfer of its properties to or for the benefit of a
creditor at a time when other creditors similarly situated have not been paid,
or shall have suffered or permitted, while insolvent, any creditor to obtain a
lien upon any of its properties through legal proceedings or distraint which is
not vacated within thirty (30) Days from the date thereof.
ARTICLE SEVEN
RIGHTS UPON DEFAULT
Upon the occurrence or continuing of any Event of Default, the Bank
shall have and may exercise any or all of the rights set forth herein
(provided, however, the Bank shall be under no duty or obligation to do so):
SECTION 7.1 Acceleration. To declare the indebtedness evidenced
by the Note and all other Obligations to be forthwith due and payable,
whereupon the Note and all other Obligations shall become forthwith due and
payable, both as to principal and interest, without presentment, demand,
protest or any other notice or grace period of any kind, all of which are
hereby expressly waived, anything contained herein or in the Note or in such
other
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Obligations to the contrary notwithstanding, and, upon such acceleration, the
unpaid principal balance and accrued interest upon the Note shall from and
after such date of acceleration bear interest at the Default Rate.
SECTION 7.2 Right of Setoff. To exercise its right of setoff as
permitted under Section 2.6.
SECTION 7.3 Other Rights. To exercise such other rights as may
be permitted under any of the Loan Documents or applicable law.
SECTION 7.4 Uniform Commercial Code. To exercise from time to
time any and all rights and remedies of a secured creditor under the UCC and
any and all rights and remedies available to it under any other applicable law.
ARTICLE EIGHT
MISCELLANEOUS
SECTION 8.1 Cumulative Remedies. The remedies provided in this
Agreement and in the Loan Documents are cumulative and not exclusive of any
remedies provided by law or in equity. Upon an Event of Default, the Bank may
elect to exercise any one or more of such remedies and such election shall not
waive or cause the Bank to have elected not to subsequently exercise any other
such remedies available to it under the Agreement or any Loan Document.
SECTION 8.2 Amendments, Etc. No amendment, modification,
termination or waiver of any provision of this Agreement, the Note or the other
Loan Documents, nor consent to any departure by the Company therefrom, shall in
any event be effective unless the same shall be in writing and signed by the
Bank, and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
SECTION 8.3 Addresses for Notices, Etc. All notices, requests,
demands and other communications provided for hereunder shall be in writing and
shall be deemed to have been given (i) in the case of delivery, when addressed
to the other party and delivered to the address set forth below, (ii) in the
case of mailing, three (3) Days after said notice has been deposited in the
United States Mails, postage prepaid, by certified or return mail, and
addressed to the other party as set forth below, and (iii) in all of the cases,
when received by the other party. The address at which notices may be sent
under this Section 8.3 are the following:
If to the Company: THE COLONIAL BANCGROUP, INC.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇. ▇▇▇▇▇ Oakley CFO
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If to the Bank: SUN BANK, NATIONAL ASSOCIATION
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Post Office Box 3833
Orlando, Florida 32802-3833
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President
With a copy to: A. ▇▇▇ ▇▇▇▇, Esq.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇, P.A.
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Any party may at any time change the address to which notices may be sent under
this Section by the giving of notice of such change to the other party in the
manner set forth herein.
SECTION 8.4 Applicable Law. This Agreement, and each of the Loan
Documents and transactions contemplated herein (unless specifically stipulated
to the contrary in such document) shall be governed by and interpreted in
accordance with the laws of the State of Florida.
SECTION 8.5 Survival of Representations and Warranties. All
representations, warranties, covenants and agreements contained herein or made
in writing by the Company in connection herewith shall survive the execution
and delivery of this Agreement, the Note and the other Loan Documents and be
true and correct during the term of the Loan.
SECTION 8.6 Time of the Essence. Time is of the essence of this
Agreement, the Note and the other Loan Documents.
SECTION 8.7 Headings. The headings in this Agreement are
intended to be for convenience of reference only, and shall not define or limit
the scope, extent or intent or otherwise affect the meaning of any portion
hereof.
SECTION 8.8 Severability. In case any one or more of the
provisions contained in this Agreement, the Note or the other Loan Documents
shall for any reason be held to be invalid, illegal or unenforceable in any
respect, the same shall not affect any other provision of this Agreement, the
Note or the other Loan Documents, but this Agreement, the Note and the other
Loan Documents shall be construed as if such invalid or illegal or
unenforceable provision had never been contained therein; provided, however, in
the event said matter would in the reasonable opinion of the Bank adversely
effect the rights of the Bank under any or all of the Loan Documents, the same
shall be an Event of Default.
SECTION 8.9 Counterparts. This Agreement may be executed in any
number of counterparts, all of which taken together shall
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constitute one and the same instrument and any of the parties hereto may
execute this Agreement by signing any such counterpart.
SECTION 8.10 Conflict. In the event any conflict arises between
the terms of this Agreement and the terms of any other Loan Document, the Bank
shall have the option of selecting which conditions shall govern the loan
relationship evidenced by this Agreement and, if the Bank does not so indicate,
the terms of this Agreement shall govern in all instances-of such conflict.
SECTION 8.11 Term. The term of this Agreement shall be for such
period of time until the Loan and Note have been repaid in full, the Company
has no further right to request any Advance on the Loan and all Obligations
have been paid to the Bank in full.
SECTION 8.12 Cross Defaults. A default under any Loan Document,
including a default under this Agreement, shall be and constitute a default
under each and every Loan Document, including this Agreement. A default under
any other obligation of the Company or any of its affiliates to the Bank shall
be and constitute a default under this Loan and a default under this Loan shall
be and constitute a default under all other obligations of the Company or any
of its affiliates to the Bank.
SECTION 8.13 Expenses. The Company agrees, whether or not the
transactions hereby contemplated shall be consummated, to pay, and save Bank
harmless against liability for the payment of, all out-of-pocket expenses
arising in connection with this transaction, all taxes, together in each case
with interest and penalties, if any, and any income tax payable by Bank in
respect of any reimbursement therefor, which may be payable in respect of the
execution, delivery and performance of this Agreement or the execution,
delivery, acquisition and performance of any Note issued under or pursuant to
this Agreement (excepting only any tax on or measured by net income of Bank
determined substantially in the same manner, other than the rate of tax, as net
income is presently determined under the Federal Internal Revenue Code), and
the reasonable fees and expenses of any special counsel to Bank in connection
with this Agreement and any subsequent modification or enforcement thereof or
consent thereunder including, without limitation, attorneys fees and court
costs incurred in any legal proceeding whether at the trial or appellate level
or in any bankruptcy proceeding. The obligations of Company under this Section
8.13 shall survive the payment of any Note.
SECTION 8.14 Successors and Assigns. All covenants and agreements
in this Agreement contained by or on behalf of either of the parties hereto
shall bind and inure to the benefit of the respective successors and assigns of
the parties hereto whether so expressed or not; provided, however, this clause
shall not by itself authorize any delegation of duties by the Company or any
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other assignment which may be prohibited by the terms and conditions of this
Agreement.
SECTION 8.15 Further Assurances. The Company shall, from time to
time, execute such additional documents as may reasonably be requested by the
Bank or the counsel, to carry out and fulfill the intent and purpose of this
Agreement and the Loan Documents.
SECTION 8.16 No Third Party Beneficiaries. The parties intend
that this Agreement is solely for their benefit and no Person not a party
hereto shall have any rights or privileges under this Agreement whatsoever
either as the third party beneficiary or otherwise.
SECTION 8.17 WAIVER OF JURY TRIAL. THE COMPANY HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY, AFTER CAREFUL CONSIDERATION AND AN OPPORTUNITY
TO SEEK LEGAL ADVICE, WAIVES ITS RIGHT TO HAVE A TRIAL BY JURY IN RESPECT OF
ANY LITIGATION ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY OF THE
PROVISIONS OF THIS AGREEMENT, THE NOTE, THE PLEDGE AGREEMENT OR ANY OTHER LOAN
DOCUMENT EXECUTED IN CONJUNCTION WITH THE LOAN EVIDENCED BY THIS AGREEMENT.
SECTION 8.18 No Waiver. No failure or delay on the part of the
Bank in exercising any right, power or remedy hereunder, or under the Note or
the other Loan Documents shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right, power or remedy preclude any
other or further exercise thereof or the exercise of any other right, power or
remedy hereunder or thereunder.
SECTION 8.19 Entire Agreement. Except as otherwise expressly
provided, this Agreement and the other Loan Documents embody the entire
agreement and understanding between the parties hereto and supersede all prior
agreements and understandings relating to the subject matter hereof.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed, sealed and delivered, as applicable, by their duly
authorized officers on the day and year first above written.
COMPANY:
WITNESSES: THE COLONIAL BANCGROUP, INC.
------------------------- By:
-------------------------------
Name: ▇. ▇▇▇▇▇ OAKLEY
-------------------- Secretary
------------------------- (CORPORATE SEAL)
Name:
--------------------
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SUN BANK, NATIONAL ASSOCIATION
------------------------- By:
------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------- Vice President
-------------------------
Name:
--------------------
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EXHIBIT A
LIST OF SUBSIDIARIES
Colonial Bank
The Colonial BancGroup Building Corporation
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