AMENDMENT TO FIFTH MODIFICATION AGREEMENT AND COVENANT WAIVER
Exhibit 10.2
AMENDMENT
TO FIFTH MODIFICATION AGREEMENT
AND
COVENANT WAIVER
This
Amendment to Fifth Modification Agreement and Covenant Waiver (this “Agreement”) is made
and effective September 23, 2008 (the “Effective Date”), by
and between VINEYARD NATIONAL BANCORP, a California corporation (“Borrower”) and FIRST
TENNESSEE BANK NATIONAL ASSOCIATION (“Lender”). Unless
otherwise set forth herein, all capitalized terms used herein shall have the
meaning given such terms in the Loan Documents (defined below).
WHEREAS,
in connection with a loan from
Lender to Borrower in the original principal amount of $70,000,000.00, with
a
current outstanding principal loan balance of $48,300,000.00 (the “Loan”), the Borrower
executed and delivered to Lender that certain Amended and Restated Promissory
Note (“Note”)
dated March 29, 2007, that certain Loan Agreement (“Loan Agreement”),
that certain Pledge Agreement together with Addendum to Pledge
Agreement (collectively the “Pledge”), each dated
as of March 17, 2006, that certain Modification Agreement effective as of May
11, 2006 (“First
Modification”), that certain Second Modification Agreement and Covenant
Waiver effective as of March 29, 2007 (“Second
Modification”), that certain Third Modification Agreement and Covenant
Waiver effective as of March 15, 2008 (“Third Modification”),
that certain Fourth Modification Agreement and Covenant Waiver effective as
of
June 30, 2008 (“Fourth
Modification”) and that certain Fifth Modification Agreement and Covenant
Waiver dated and effective as of August 29, 2008 (“Fifth Modification”)
(this Agreement, the Note, the Loan Agreement, the Pledge, the First
Modification, the Second Modification, the Third Modification, the Fourth
Modification and the Fifth Modification and any other documents executed by
Borrower in connection with the Loan are collectively herein referred to as
the
“Loan
Documents”);
WHEREAS,
Borrower and Lender now desire
to amend the definition of the “Additional Waiver” set forth in Exhibit A to the
Fifth Modification by deleting said Exhibit A and replacing it with Exhibit
A
attached to this Agreement, as set forth below;
NOW,
THEREFORE, FOR MUTUAL
CONSIDERATIONS, the receipt and sufficiency of which is hereby acknowledged,
the
undersigned Borrower and Lender do hereby agree as follows:
1) Amendment. Borrower
and Lender hereby
amend the definition of “Additional Waiver” set forth in the Fifth Modification
by hereby deleting ExhibitA
of the Fifth Modification in its
entirety and hereby substituting in its place Exhibit A attached to this
Agreement and incorporated herein by reference.
2) Full
Force and
Effect. Except as expressly amended hereby, the Loan Documents
(including without limitation, the Fifth Modification) are in all respects
confirmed, ratified and approved and are in full force and effect as of the
date
hereof.
3) Capitalized
Terms. Any
capitalized term used but not defined herein shall have the meaning ascribed
to
it in the Fifth Modification. All references to the “Loan Documents”
in the Fifth Modification and any of the other Loan Documents shall include,
without limitation, this Agreement and all other such Loan Documents, as
modified by this Agreement.
4) Time
of the
Essence.
TIME
IS OF THE ESSENCE OF THIS
AGREEMENT.
5) Counterpart
Signature Pages. This Agreement may be
executed in one or more counterparts and may be delivered by facsimile or
electronic mail, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.
[Signature
Pages to
Follow]
COUNTER
PART SIGNATURE PAGE
TO
AMENDMENT
TOFIFTH MODIFICATION
AGREEMENT
AND
COVENANT WAIVER
IN
WITNESS WHEREOF, the parties have
executed this Agreement as of the date first above written.
BORROWER:
a Californiacorporation
By: /s/
▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇
Name: ▇▇▇▇▇
▇.
▇▇▇▇▇▇▇
Title: Chief
Executive
Officer
STATE
OF CALIFORNIA
COUNTY
OF RIVERSIDE
Before
me, ▇▇▇▇▇▇▇▇▇ ▇.▇▇▇▇▇, Notary
Public of the state and county aforesaid, personally appeared ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
with whom I am personally acquainted (or proved to me on the basis of
satisfactory evidence), and who, upon oath, acknowledged himself to be Chief
Executive Officer (or other officer authorized to execute the instrument)
of VINEYARD
NATIONAL
BANCORP, a California
corporation, the within named bargainor, and that he as such Chief Executive
Officer, executed the foregoing instrument for the purpose therein contained,
by
signing the name of the corporation by himself as Chief Executive
Officer.
WITNESS
MY HAND, at office,
this 23rd day of September,
2008.
_/s/
▇▇▇▇▇▇▇▇▇ ▇.
Reyes_____________
Notary
Public
My
Commission
Expires:
_January
24,
2010______________________
COUNTER
PART SIGNATURE PAGE
TO
AMENDMENT
TO FIFTH MODIFICATION AGREEMENT
AND
COVENANT WAIVER
IN
WITNESS WHEREOF, the parties have
executed this Agreement as of the date first above written.
LENDER:
FIRST
TENNESSEE BANK
NATIONALASSOCIATION,
a national banking
association
By: /s/
▇▇▇▇▇ ▇.
Work
Name: ▇▇▇▇▇
▇.
Work
Title: Executive
Vice
President
STATE
OF TENNESSEE
COUNTY
OF SHELBY
Before
me, ▇▇▇▇▇ ▇▇▇▇▇▇, Notary Public
of the state and county aforesaid, personally appeared ▇▇▇▇▇ ▇. Work, with
whom I am personally acquainted (or proved to me on the basis of satisfactory
evidence), and who, upon oath, acknowledged himself to be Executive Vice
President (or other officer authorized to execute the instrument) of First
Tennessee Bank National Association, a national banking association, the within
named bargainor, and that he as such Executive Vice President, executed the
foregoing instrument for the purpose therein contained, by signing the name
of
the national banking association by himself as Executive Vice
President.
WITNESS
MY HAND, at office,
this 22nd day of September,
2008.
___/s/
Carly
Wilson___________________
Notary
Public
My
Commission
Expires:
__February
23,
2011___________________
EXHIBIT
A
ADDITIONAL
WAIVER
Borrower
has disclosed to and has
requested from Lender the Additional Waiver as a result of Borrower’s
noncompliance with Section 3.5
(Litigation) of the Loan Agreement due (i) to
the issuance of a Consent Order on
July 22, 2008 by the Comptroller of the Currency of the United States
of America
and Borrower’s
agreement to a Stipulation and Consent
to the Issuance of the Consent Orderand (ii)
to an Agreement between Borrower
and the Federal Reserve Bank of San Francisco dated September 23,
2008.