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EXHIBIT 10.5
BARCLAYS BANK PLC
GENERAL SECURITY AGREEMENT
(STOCKS, BONDS, NOTES, TRUST INTERESTS,
PARTNERSHIP INTERESTS, DEBENTURES,
WARRANTS AND STOCK OPTIONS)
1. THE COLLATERAL. For value received, the undersigned (the
"Debtor") hereby pledges, assigns and grants to BARCLAYS BANK PLC, acting
through its Miami Agency at 000 Xxxxxxxx Xxxxxx, Xxxxx, Xxxxxxx 00000, with full
recourse to Debtor and subject to the provisions of this Agreement, a
first-ranking and perfected security interest in the following described
personal property (the "Collateral"):
(a) The following described Securities (as defined
below):
21,750 shares of the common stock of Colonial Bank,
an Alabama banking association ("Colonial Bank"), representing all of its issued
and outstanding capital stock.
(b) All General Intangibles, rights, powers, privileges
and preferences pertaining or incidental to any Securities pledged and assigned
hereunder from time to time, and any interest, stock rights, rights to
subscribe, cash distributions, dividends, stock dividends, dividends paid in
stock, liquidating dividends, new securities (whether certificated or
uncertificated) and other property to which Debtor may become entitled by reason
of the ownership of any Securities pledged and assigned hereunder from time to
time.
(c) All Proceeds and profits of any Collateral, all
increases and additions to any Collateral and all replacements and substitutions
for any Collateral, including without limitation any proceeds of any insurance,
indemnity, warranty or guaranty payable with respect to any Collateral, any
awards or payments due or payable in connection with any requisition,
confiscation, seizure or forfeiture of any Collateral by any person acting under
governmental authority or color thereof, and any damages or other amounts
payable to Debtor in connection with any lawsuit regarding any of the
Collateral.
(d) All monies, bank accounts, balances, credits,
deposits, collections, drafts, bills, notes and other property of every kind
(whether tangible or intangible) now owned or hereafter acquired by Debtor and
at any time in the actual or constructive possession of (or in transit to)
Secured Party or its affiliates in any capacity or for any purpose.
2. THE OBLIGATIONS. The Collateral secures and will secure the
prompt and unconditional payment of the "Obligations." As used in this
Agreement, the term "Obligations" means all amounts of any nature whatsoever now
or hereafter owing in respect of that certain Note (the "Note") from Debtor to
Secured Party of even date herewith in the principal amount of
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U.S. $25,000,000.00 and all renewals and extensions thereof, as well as all
other obligations, indebtedness and liabilities of any nature whatsoever of
Debtor to Secured Party under this Agreement.
3. CERTAIN DEFINITIONS. For purposes of this Agreement, unless
Debtor shall have otherwise agreed in writing (a) the term "Securities" means
any notes, stocks, treasury stocks, bonds, debentures, evidences of
indebtedness, warrants, partnership interests, stock options, beneficial
interests in trusts, or equity interests of any nature whatsoever in any legal
entity or, in general, any interest or instrument commonly known as a
"security," or any warrant or right to subscribe to or purchase any of the
foregoing; (b) the term "issuer" means, with respect to any Securities, the
legal entity in which such Securities evidence an ownership or beneficial
interest; (c) the term "Loan Documents" means this Agreement and the Note; and
(c) the term "organic documents" means with respect to Debtor or Colonial Bank,
its articles of incorporation and by-laws, memorandum of association and
articles of association, or comparable documents. All capitalized terms used but
not otherwise defined in this Agreement shall have the respective meanings given
them in the Florida Uniform Commercial Code.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS. Debtor acknowledges
and agrees that Secured Party is relying on the representations and warranties
and covenants in this Agreement and the Note as a condition precedent to the
extension(s) of credit secured hereby, and that all such representations and
warranties and covenants shall survive the execution and delivery of this
Agreement, the extension(s) of credit and any bankruptcy, insolvency or similar
proceedings. Debtor hereby represents and warrants to Secured Party and
covenants for the benefit of Secured Party as follows:
(a) Debtor is (and with respect to all Collateral
acquired hereafter, shall be) the sole legal and equitable owner of the
Collateral free from any adverse claim, lien, security interest, encumbrance or
other right, title or interest of any person except for the security interest
created hereby. Debtor has the unqualified right and power to grant a security
interest in the Collateral without the consent of any person (other than any
person whose written consent has been duly obtained, a true and correct copy of
such consent having been delivered to Secured Party), and Debtor shall at
Debtor's expense defend the Collateral against all claims and demands of all
persons at any time claiming the Collateral or any interest therein adverse to
Secured Party. Debtor shall not create, grant nor suffer to exist any pledge,
security interest, lien, levy, garnishment, attachment, charge or encumbrance
upon any of the Collateral (except in favor of Secured Party) and shall at all
times keep the Collateral free from the same.
(b) All Securities pledged and assigned hereunder are
(and with respect to all Collateral acquired hereafter, shall be) duly
authorized and validly issued, fully paid and nonassessable, authentic, genuine,
unaltered and not stolen or forged or counterfeit, and in all respects what they
purport to be. Except as otherwise disclosed in writing to Secured Party
simultaneously with or prior to the execution of this Agreement, the Collateral
is freely tradable and assignable and is not subject to any restrictions on
transfer or resale or other disposition in any manner (other than any
restrictions imposed by any applicable securities laws).
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(c) Colonial Bank is a duly-organized and validly
existing legal entity in good standing under the laws of the jurisdiction of its
organization, is duly qualified to do business in those jurisdictions where the
nature of its business requires it to be so qualified, and has the necessary
legal power and authority to own its property and assets and to transact the
business in which it is engaged.
(d) Debtor is delivering (or causing to be delivered) to
Secured Party upon or prior to execution of this Agreement all stock
certificates, bonds, debentures, warrants, or other Instruments or writings
evidencing any Securities pledged and assigned under this Agreement (and Debtor
shall promptly deliver the same with respect to all certificated Securities
pledged and assigned to Secured Party hereafter), together with duly executed
stock powers in blank and all other assignments or endorsements requested by
Secured Party. With respect to any uncertificated Securities pledged and
assigned hereunder, Debtor has caused Secured Party to be registered as the
transferee thereof on the books of the custodian bank, clearing corporation,
brokerage house or issuer, as may have been requested by Secured Party (and
Debtor shall promptly cause such registration with respect to all uncertificated
Securities pledged and assigned to Secured Party hereafter).
(e) If new or additional Securities are issued to Debtor
(as a stock dividend, stock split, or pursuant to any reclassification or
recapitalization of the capital, or the reorganization or, merger, acquisition
or consolidation, of Colonial Bank, or otherwise) with respect to the
Collateral, then the same shall be deemed an increment to the Collateral and
under pledge and assignment to Secured Party hereunder. If evidenced by a stock
certificate, bond, warrant, debenture, certificate, or other Instrument or
writing, then such Securities shall (to the extent acquired or received by or
placed under Debtor's control) be held in trust for and promptly delivered to
Secured Party, together with duly executed stock powers in blank and any other
assignments or endorsements as Secured Party may request. If any such Securities
are uncertificated, then Debtor shall immediately upon acquisition of such
Securities cause Secured Party to be registered as the transferee thereof on the
books of the custodian bank, clearing corporation, brokerage house or issuer, as
may be requested by Secured Party.
(f) Unless otherwise agreed in writing by Secured Party,
Debtor shall deliver to Secured Party, to be applied against the Obligations,
whether or not matured, in any manner deemed appropriate by the Secured Party,
any dividends, interest payments or other monies payable at any time in respect
of any Security, promptly upon Debtor's receipt thereof and in the form
received. Pending such delivery, Debtor shall hold such sums in trust for
Secured Party and shall not commingle the same with Debtor's other funds. If any
such dividend, interest payment or other monies shall be evidenced by a check,
draft or other Instrument, Debtor shall endorse the same to the order of Secured
Party immediately upon receipt and promptly deliver it to Secured Party, to be
applied against the Obligations, whether or not matured, in any manner deemed
appropriate by the Secured Party.
(g) Debtor's principal place of business is: Colonial
Financial Center, Xxx Xxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxx, 00000. Without
obtaining Secured Party's prior written consent, Debtor shall not change
Debtor's chief place of business or the office(s) where
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Debtor's books, papers and records concerning the Collateral are kept, nor
change Debtor's name, identity or corporate structure, nor do business under any
fictitious or assumed name.
(h) Without the prior written consent of Secured Party,
Debtor shall not sell, transfer, assign, convey or otherwise dispose of any
interest in any of the Collateral, nor enter into any contract or agreement to
do so.
(i) Debtor shall not take or permit any action that may
impair the Collateral or Secured Party's security interest therein, and shall
not permit any of the Collateral to be used in violation of any statute,
regulation or other law. Without limiting the foregoing, Debtor will not
compromise, release, surrender or waive any rights of any nature whatsoever in
respect of any of the Collateral without Secured Party's prior written consent,
which Secured Party may grant or withhold in its sole discretion.
(j) Debtor shall pay when due all taxes or other
governmental charges whatsoever levied against the Collateral and all
assessments (including stock assessments) upon the Collateral, and Debtor shall
pay any tax which may be levied on or assessed against any Loan Document or the
Obligations.
(k) Debtor shall pay on demand all reasonable filing fees
and similar charges and all reasonable costs incurred by Secured Party in
collecting or securing or attempting to collect or secure any Obligations,
including the reasonable expenses and reasonable fees of Secured Party's legal
counsel, whether or not involving litigation and/or appellate, administrative or
bankruptcy proceedings. Debtor agrees to indemnify and hold Secured Party
harmless on demand against all expenses, losses, consequences or damages
incurred or suffered by Secured Party arising from or relating to any claim,
demand, action or proceeding brought by any person(s) whomsoever in connection
with or relating to the Collateral, the Obligations, this Agreement or any other
Loan Document (including without limitation any court costs and the expenses and
reasonable fees of Secured Party's legal counsel), except to the extent that a
court of competent jurisdiction shall hold the same to be the result of Secured
Party's own gross negligence or willful misconduct. Debtor shall pay any
documentary stamp taxes, intangible taxes or other taxes (except for franchise
or income taxes based on the net income of Secured Party) which may now or
hereafter apply to the Collateral, the Obligations or this Agreement or any
other Loan Document, and Debtor agrees to indemnify and hold Secured Party
harmless from and against any liability, costs, attorney's fees, penalties,
interest or expenses relating to any such taxes, as and when the same may be
incurred. All sums payable by Debtor under this Agreement are and shall be
secured by the Collateral.
(l) If so requested by Secured Party at any time (whether
before or after the occurrence of an Event of Default), Debtor shall
immediately: (i) to the extent not previously delivered to the Secured Party in
compliance with the terms hereof, deliver to Secured Party any and all
Instruments and, Securities included in the Collateral at the time and place and
manner specified by Secured Party, together with any endorsements, stock powers
in blank and assignments requested by Secured Party for their transfer to
Secured Party or to any other person selected by Secured Party, all in form and
substance satisfactory to Secured Party; and (ii)
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execute, deliver and file any and all financing statements, continuation
statements, agreements, notices, vouchers, invoices, schedules, confirmatory
assignments, conveyances, transfer endorsements, powers of attorney, proxies,
certificates, deeds or other papers and/or perform any act which Secured Party
may reasonably deem necessary or appropriate to create, perfect, preserve,
validate or otherwise protect Secured Party's security interest in the
Collateral or to enable Secured Party from time to time to exercise and enforce
Secured Party's rights under this Agreement or any other Loan Document.
(m) Debtor shall deliver to Secured Party a satisfactory
annual financial statement and supporting documentation, prepared by an
independent certified public accountant acceptable to Secured Party, for each of
Debtor and Colonial Bank within ninety (90) days after the end of its fiscal
year. Debtor shall also promptly deliver any other information reasonably
requested by Secured Party from time to time regarding the respective financial
condition or business operations or prospects of Debtor and Colonial Bank. All
financial statements of Debtor previously delivered to Secured Party have been
prepared in accordance with generally accepted accounting principles
consistently applied and fairly present the correct respective financial
conditions of Debtor as of their respective dates, and the foregoing shall be
true with respect to all financial statements of Debtor and Colonial Bank
delivered to Secured Party hereafter.
(n) There is no fact (including any pending or threatened
litigation or proceeding) that Debtor has not disclosed to Secured Party in
writing that could materially adversely affect its or Colonial Bank's respective
properties, businesses or financial condition, or any Collateral to the extent
that Debtor's ability to repay the amount of the note would be jeopardized.
Debtor shall promptly notify Secured Party in writing if any event shall occur
or become known to Debtor which has or could have any such materially adverse
effect with respect to Debtor or Colonial Bank, or which materially changes the
truth or correctness of any representation or warranty in any Loan Document, or
which affects any rights incidental to, any Collateral or the ability of Debtor
or Secured Party to dispose of the same (including without limitation the levy
of any legal process or the filing of any lien against the Collateral or the
adoption of any marketing order, arrangement or procedure affecting the
Collateral, whether governmental or otherwise).
(o) Debtor has duly obtained all permits, licenses,
approvals and consents from, and made all filings with, any governmental
authority (and the same have not lapsed nor been rescinded or revoked) which are
necessary in connection with the execution or delivery or enforcement of any
Loan Document or the performance of Debtor's obligations thereunder.
(p) There are no actions, suits or proceedings pending or
threatened against or affecting any Collateral before any court of law or equity
or any tribunal, administrative board or governmental authority, and Debtor is
not in default under any other indebtedness or with respect to any order, writ,
injunction, decree, judgment or demand of any court or any governmental
authority.
(q) The execution and delivery of this Agreement and all
other Loan
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Documents do not and shall not (i) violate any provisions of any law, rule,
regulation, order, writ, judgment, injunction, decree, decision or award
applicable to Debtor or Colonial Bank, nor (ii) result in a breach of, or
constitute a default under, any indenture, bond, mortgage, lease, instrument,
credit agreement, undertaking, contract or other agreement to which Debtor or
Colonial Bank is a party or by which any of them or their respective properties
may be bound or affected. This Agreement and each Loan Document constitutes the
legal, valid and binding obligation of Debtor, enforceable against Debtor in
accordance with its terms.
(r) No extension of credit secured hereby is being used
to purchase or carry any "margin stock" within the meaning of Regulation "U" of
the Board of Governors of the Federal Reserve System, nor to extend credit to
others for that purpose. No amount borrowed from Secured Party will be used for
any purchase which violates or which is inconsistent with the provisions of
Regulations G, U or X of the Board of Governors of the Federal Reserve System.
(s) If Debtor shall receive from any issuer, broker,
custodian, clearing corporation or other person, any notice or communication
(including without limitation any proxy solicitation, purchase offer, notice of
any stockholders' meetings or annual report) with respect to any Collateral,
Debtor shall immediately notify Secured Party of such notice or communication
and, if the same shall be in writing, shall provide to Secured Party a true and
correct copy thereof.
(t) Debtor shall at all times, unless Secured Party shall
have otherwise instructed in writing, at Debtor's own expense and to the fullest
extent permitted by law, exercise all voting rights in respect of any Securities
pledged and assigned hereunder, and all other rights afforded to it by contract
or by law, to actively oppose and prevent: (i) the issuance by Colonial Bank of
additional Securities which might reduce or otherwise adversely affect the
voting power or liquidation or other rights of Securities pledged and assigned
hereunder; (ii) any modification or amendment to the organic documents of
Colonial Bank; (iii) any liquidation, winding-up, dissolution or termination of
existence of Colonial Bank; and (iv) any merger, consolidation, reorganization,
recapitalization, or acquisition by or of Colonial Bank.
5. RIGHTS OF SECURED PARTY. Debtor agrees with and for the
benefit of Secured Party that:
(a) If Secured Party shall reasonably determine at any
time that the Collateral is insufficient to secure the Obligations, then on
demand by Secured Party Debtor shall reduce the outstanding amount of the
Obligations to the extent specified by Secured Party, or shall pledge, assign
and deliver to Secured Party additional Securities or other collateral
reasonably acceptable to Secured Party sufficient to increase the Collateral to
the amount specified by Secured Party. All such additional Securities or other
Collateral so delivered to Secured Party from time to time shall thereupon
become a part of the Collateral and subject to the provisions of this Agreement.
From and after the occurrence of an Event of Default, Secured Party is
authorized (but is not obligated) to sell all or any part of the Collateral
whenever Secured Party considers such sale necessary for Secured Party's
protection, and any such sale shall be made in accordance with this Agreement
and applicable law, and may be made without prior demand for
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additional collateral or for payment on the Obligations or any other demands
whatsoever.
(b) Debtor hereby grants Secured Party an irrevocable
proxy, coupled with an interest, effective only from and after the occurrence
and during the continuation of an Event of Default, to vote all Securities
pledged and assigned hereunder, such proxy to remain effective as long as any
Obligations shall remain outstanding. Pursuant to this proxy, Secured Party or
its nominee(s) may, at any time an Event of Default is continuing, without
notice to Debtor, exercise all voting and corporate rights at any meeting of
Colonial Bank and may exercise any and all rights of conversion, exchange,
subscription, receipt of cash tenders, or any other rights, privileges or
options pertaining to such Securities as if Secured Party were the absolute
owner thereof, including without limitation the right to exchange the same for
other Securities or any other property upon the merger, consolidation,
reorganization, recapitalization or other readjustment of Colonial Bank or upon
the exercise by Colonial Bank or Secured Party of any right, privilege or option
pertaining to such Securities, and in connection therewith, Secured Party may
deposit and deliver any such Securities with any committee, depositary, transfer
agent, registrar or other designated agency upon such terms and conditions as
Secured Party may determine, all without liability except to account for
property actually received by Secured Party.
(c) Secured Party shall have the right (but not the
obligation) at its option to discharge or pay any taxes, assessments, liens,
security interests or other encumbrances at any time levied or placed on or
against the Collateral, to pay for the preservation or protection of the
Collateral, and/or to advance monies for any other reason or purpose permitted
under any Loan Document. Any amount so paid or advanced by Secured Party shall
be secured by the Collateral and shall be repayable by Debtor on demand.
(d) Secured Party may sign and file financing statements,
security agreements, recording instruments or other documents or amendments
thereto with respect to the Collateral or any portion thereof without the
signature of Debtor, all at Debtor's sole expense, and Debtor shall reimburse
Secured Party on demand for any costs advanced or incurred by Secured Party in
connection therewith. At Secured Party's option, a carbon, photographic or other
reproduction of this Agreement (or of any financing statement executed by
Debtor) shall be sufficient as a financing statement.
(e) During any continuing Event of Default, Secured Party
is hereby irrevocably appointed the attorney-in-fact of Debtor, which
appointment is coupled with an interest, with full power of substitution, on
behalf of Debtor to perform all acts, and to execute and deliver all
endorsements, notices, instruments of assignment and transfer, deeds, releases,
bills of sale or other writings whatsoever which Secured Party deems appropriate
to protect and preserve the Collateral and to perfect and maintain and realize
upon Secured Party's security interest and rights in the Collateral. If so
requested by Secured Party or by any other person, Debtor shall ratify and
confirm the acts of Secured Party (and/or any substitute) as Debtor's
attorney-in-fact.
(f) During any continuing Event of Default, Secured Party
may take control of any Proceeds of Collateral at any time and may at its option
apply any cash Proceeds of the
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Collateral (including without limitation any insurance proceeds or amounts
payable in any lawsuit on account of the Collateral) to the payment of the
Obligations, whether or not matured, in any manner deemed appropriate by Secured
Party, or return such cash Proceeds to Debtor for use in the operation of
Debtor's business.
(g) Secured Party shall not be obligated to do any of the
acts authorized in this Agreement or any other Loan Document, but if Secured
Party elects to do so then Secured Party shall not be responsible or liable to
Debtor therefor (or for any consequences of such acts) except to the extent that
a court of competent jurisdiction holds that Secured Party acted with gross
negligence or willful misconduct.
6. DUTY OF CARE. Secured Party shall have the right (but not the
obligation) at any time to take any action Secured Party deems appropriate in
its sole discretion for the protection or preservation of any Collateral in its
possession or control. Secured Party shall exercise reasonable care with respect
to Collateral in its custody only to the extent required by applicable law.
Secured Party shall be deemed to have used reasonable care if such Collateral is
accorded treatment substantially equal to that which Secured Party accords its
own property, or if Secured Party takes such action for that purpose as Debtor
may reasonably request in writing. No omission to do any act not requested by
Debtor shall be deemed a failure to exercise reasonable care, and no omission to
comply with any request of Debtor shall of itself be deemed a failure to
exercise reasonable care. Secured Party is not responsible for any injury or
loss to the Collateral or any part thereof arising from Act of God, robbery,
fire, flood, fraud or any other cause whatsoever beyond the control of Secured
Party, and Secured Party shall not be liable for any negligent act or default of
any of its collecting agents or correspondents. Secured Party shall not be
required to examine or inquire into the validity of any Collateral subject to
this Agreement, or to exchange or collect on any such Collateral, or to take any
action necessary to hold any corporation, issuer or other person liable on the
Collateral; Debtor hereby waives any obligation of diligence on the part of
Secured Party in looking after, preserving or acting with respect to the
Collateral or collecting the same.
7. EVENTS OF DEFAULT. The occurrence of any one or more of the
following events, regardless of the cause thereof and whether within or beyond
the control of Debtor, shall constitute an "Event of Default" under this
Agreement:
(a) The failure of Debtor to pay any sum when due under
any Loan Document, whether upon maturity or by acceleration, and the expiration
of any applicable grace period provided in such Loan Document for that payment;
(b) the following events which have not been cured by
Borrower within fifteen (15) calendar days after Borrower has learned of the
event or which have not been cured by Borrower within fifteen (15) calendar days
after Bank gives notice to Borrower of the occurrence of the event, whichever
occurs first: (i) the failure of Debtor to observe or perform any other covenant
or agreement in this Agreement or any other Loan Document, or the occurrence of
any other default under any Loan Document, and the expiration of any applicable
grace period provided in such Loan Document for the cure of that failure or
default; (ii) the sale
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or further voluntary or involuntary encumbrancing of any of the Collateral;
(iii) if any levy, attachment, execution, charging order, garnishment or other
process shall be issued, or any involuntary lien or encumbrance shall be filed,
against any portion of the Collateral; (iv) with respect to Colonial Bank, if
any event shall occur which, in the reasonable judgment of Secured Party,
represents or constitutes a material adverse change in the business or financial
condition or prospects of such bank; (v) if any representation, warranty,
affidavit, certificate or statement made or delivered to Secured Party by Debtor
or on Debtor's behalf from time to time in connection with the Loan Documents or
the Obligations shall prove false, incorrect or misleading in any material
respect; (vi) the dissolution or merger or consolidation or termination of
existence of Debtor or of Colonial Bank, or the failure or cessation or
liquidation of the business of Debtor or Colonial Bank; (vii) if Debtor or
Colonial Bank shall default in the payment of any indebtedness for borrowed
money (whether direct or contingent and whether matured or accelerated) to
Secured Party, or to any other person whomsoever in an amount of not less than
One Million United States Dollars (U.S. $1,000,000.00), or if Debtor or Colonial
Bank shall become insolvent or unable to pay its debts as they become due;
(viii) the anticipatory repudiation by Debtor of any of its obligations under
any Loan Document, or any declaration by Debtor of intention not to perform any
such obligations as and when the same become due; (ix) the disposition, transfer
or exchange of all or substantially all of Debtor's or Colonial Bank's assets
for less than fair market value; (x) the failure to obtain any permit, license,
approval or consent from, or to make any filing with, any governmental authority
(or the lapse or revocation or rescission thereof once obtained or made) which
is necessary in connection with the execution or delivery or enforcement of any
Loan Document or the performance of Debtor's obligations under any Loan
Document; (xi) if it shall become unlawful for Secured Party to extend credit to
Debtor, or to maintain any credit so extended, or for the Debtor to perform any
of the Debtor's obligations under any Loan Document; and (xii) if any
governmental authority (or any person acting or purporting to act under
governmental authority) shall take any action to condemn, assume custody or
control of, seize or appropriate all or any substantial part of Debtor's or
Colonial Bank's property or to displace the management of Debtor's or Colonial
Bank's business.
8. RIGHTS AND REMEDIES ON DEFAULT. If any of the foregoing Events
of Default shall occur, then Secured Party, in its sole discretion and without
prior notice to Debtor, may at any time and from time to time during the
continuation thereof take any or all of the following actions:
(a) declare any or all of the Obligations immediately due
and payable;
(b) declare any or all other liabilities of Debtor to
Secured Party immediately due and payable;
(c) terminate any obligation which Secured Party may have
at that time to make further loans or extensions of credit or other financial
accommodations to the Debtor;
(d) foreclose Secured Party's security interest(s) in any
or all of the Collateral as provided by law;
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(e) sell, re-sell, discount or dispose of all or any
portion of the Collateral, or endorse, assign and convey the same to any third
party;
(f) require Debtor to assemble Debtor's books, records,
files, papers and other data pertaining to the Collateral and deliver them to
Secured Party at Debtor's expense to a place designated by Secured Party;
(g) enter the premises of Debtor and take possession of
any Collateral not then in Secured Party's possession and any books, records,
files and papers pertaining to the Collateral (Debtor hereby waiving and
releasing Secured Party to the fullest extent permitted by law from any and all
claims which Debtor might otherwise have against Secured Party in connection
therewith or arising therefrom); and/or
(h) exercise any and all other rights and remedies with
respect to the Collateral which Secured Party may enjoy under the Loan
Documents, the Florida Uniform Commercial Code or any other applicable law.
All rights, remedies and powers granted to Secured Party in
this Agreement or in any other Loan Document or by applicable law shall be
cumulative and may be exercised singly or concurrently on one or more occasions.
No delay in exercising or failure to exercise any of Secured Party's rights or
remedies shall constitute a waiver thereof, nor shall any single or partial
exercise of any right or remedy by Secured Party preclude any other or further
exercise of that or any other right or remedy. No waiver of any right or remedy
by Secured Party shall be effective unless made in writing and signed by Secured
Party, nor shall any waiver on one occasion apply to any future occasion, but
shall be effective only with respect to the specific occasion addressed in that
signed writing. Debtor shall not be subrogated to any rights of Secured Party
against any other party or any Collateral until all sums due to Secured Party
under the Obligations shall have been paid in full, and if any of the
Obligations shall remain unpaid after the exercise of any or all of Secured
Party's rights and remedies, then Debtor shall remain liable for such
deficiency.
9. SALE OF THE COLLATERAL. With respect to any sale or
disposition of any of the Collateral provided for under this Agreement, whether
made under the power of sale in this Agreement, under any applicable provisions
of the Florida Uniform Commercial Code or other applicable law, or under
judgment or order or decree in any judicial proceeding for the foreclosure of
Secured Party's security interest or involving the enforcement of this
Agreement:
(a) The Collateral may be sold, resold, assigned or
delivered in one or more parcels, at the same or at different times, in whole or
in part, at public or private sale or at any broker's board or on any securities
exchange, for cash or on credit or for other property, for immediate or future
delivery, and at such price(s) and on such terms as Secured Party may determine
in its sole discretion, so long as such disposition is commercially reasonable.
Without precluding any other methods of sale, the sale of the Collateral shall
be deemed made in a commercially reasonable manner if conducted in conformity
with reasonable commercial practices of banks or other financial institutions
when disposing of similar property.
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(b) Debtor hereby waives any and all demand,
advertisement or notice (except as required by law), and any notification
required by law with respect to the time and place of such sale or disposition
shall be deemed reasonable if given at least fifteen (15) days before the time
thereof, but notice given in any other reasonable manner shall also be
sufficient. In the case of any sale at a broker's board or on a securities
exchange, the notice shall identify the board or exchange at which such sale is
to be made and the day on which the Collateral (or a portion thereof) will first
be offered for sale. Any public sale of any of the Collateral shall be held at
such time or times within ordinary business hours at such place or places as
Secured Party may state in the notice or publication (if any) of such sale.
(c) Secured Party shall not be obligated to sell any of
the Collateral if it determines not to do so, notwithstanding that notice of a
sale of such Collateral may have been given. Secured Party may, without notice
or publication, adjourn any public or private sale or cause the same to be
adjourned from time to time by announcement at the time and place fixed for the
sale, and such sale may be made, without further notice, at the time and place
identified in such announcement. In case of any sale of all or any part of the
Collateral on credit or for future delivery, Secured Party may retain the
Collateral sold until the sales price is paid by the purchaser(s) thereof, but
Secured Party shall not incur any liability if any such purchaser shall fail to
take up and pay for the Collateral so sold, in which case such Collateral may
again be sold upon like notice.
(d) Debtor understands that applicable federal and state
laws restricting and imposing requirements and restrictions on and the sales of
bank securities to the general public (the "Banking and Securities Laws") may
affect the disposition of any Securities and that Secured Party's concern that
its sale or disposition of any such Securities be in compliance with the Banking
and Securities Laws may very strictly limit Secured Party's course of conduct in
disposing or attempting to dispose of all or any part of such Securities, and
may also limit the extent to which or the manner in which any subsequent
transferee may dispose of the same. Consequently, Debtor agrees that Secured
Party may, in selling or disposing of any such Securities proceed in such manner
and under such circumstances as it may deem reasonably necessary or advisable to
assure compliance with the Banking and Securities Laws. Without limiting the
generality of the foregoing, the Secured Party may, in its sole and absolute
discretion: (i) sell privately any such Securities notwithstanding that such
Securities may be qualified or registered for sale to the general public; (ii)
approach and negotiate with a restricted number of potential purchasers to
effect such sale; and (iii) restrict such sale to purchasers as to their number,
nature of business and investment intention (including, without limitation, to
purchasers each of whom will represent and agree to the satisfaction of Secured
Party that such purchaser is purchasing for its own account, for investment, and
not with a view to the distribution or sale of such Securities or part thereof),
it being understood that Secured Party may require Debtor, and Debtor hereby
authorizes Secured Party, to cause a legend or legends to be placed on the
certificates or Instruments to be delivered to such purchasers to the effect
that the Securities represented thereby have not been registered under the
Banking and Securities Laws and setting forth or referring to restrictions on
the transferability of such Securities.
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(e) Debtor agrees, if requested by Secured Party, at
Debtor's sole expense to, and to cause Colonial Bank to, render such reasonable
assistance as Secured Party or its legal counsel may request in connection with
the private or public sale of such Securities. Debtor agrees to indemnify and
hold harmless Secured Party and any underwriter against all loss, liability,
expenses or claims (including the reasonable cost of any investigation) which
any of them may incur in connection with the sale of such Securities to the
extent that such loss, liability, expense or claim arises out of or is based
upon any alleged untrue statement of a material fact contained in any
registration statement, prospectus (or any amendment or supplement thereto) or
in any notification or offering circular, or arises out of or is based upon any
intentional omission to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, except to the extent
due to the gross negligence or willful misconduct of Secured Party or any such
underwriter.
(f) Secured Party may, to the fullest extent permitted by
applicable law, bid for and purchase the Collateral in a commercially reasonable
manner, and upon compliance with the terms of sale may hold, retain and possess
and dispose of the same in its own absolute right without further
accountability. Secured Party may credit all or any part of the Obligations
against the purchase price(s) so bid, and may deliver any notes or instruments
evidencing any of the Obligations in payment of such purchase price(s); if the
amounts then owing under any such notes or instruments exceed such purchase
price(s), then the same shall be returned to Secured Party after due notation of
the partial discharge thereof.
(g) Upon consummation of any sale, Secured Party shall
have the right to assign, transfer, endorse, convey and deliver to the
respective purchaser(s) the Collateral or portion thereof so sold. Secured Party
is hereby irrevocably appointed Debtor's true and lawful attorney-in-fact (which
appointment is coupled with an interest) in Debtor's name and stead, with power
of substitution, to make all necessary bills of sale, endorsements and
instruments of assignment and transfer of the Collateral thus sold, and for such
other purposes as Secured Party may deem necessary or desirable to effectuate
the provisions of this Agreement or any other Loan Document. If so requested by
Secured Party or by any other person, Debtor shall ratify and confirm the acts
of Secured Party (and/or any substitute) as Debtor's attorney-in-fact.
(h) Such sale shall divest all right, title, interest,
equity, redemption, claim and demand whatsoever of Debtor in and to the
Collateral sold and shall be a perpetual bar both at law and in equity against
Debtor and Debtor's successors and assigns, and against any and all persons
claiming or who may claim all or any part of the Collateral from, through or
under any of them.
(i) A receipt given by Secured Party (or its designated
agent) shall be a sufficient discharge to the purchaser(s) at such sale for his
or their purchase money, and none of them shall, after such payment and receipt,
be obliged to see to the application of such purchase money or be answerable for
any loss, misapplication or non-application thereof.
(j) Secured Party shall have no obligation whatsoever to
resort first to any other security which Secured Party may hold for the
Obligations. Secured Party shall not incur
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any liability to Debtor as a result of the sale of any Collateral at any private
sale conducted in a commercially reasonable manner, or as a result of any
failure to sell or offer for sale any Collateral for any reason whatsoever or to
exercise any other right, privilege, option or power to the fullest extent
permitted by law granted to Secured Party hereunder. Debtor hereby waives to the
fullest extent permitted by law any claims against Secured Party arising with
respect to any decrease in the market value of any Collateral during the period
held for sale, or arising by reason of the fact that the price at which the
Collateral may have been sold was less than the price that might have been
obtained had the sale been otherwise effected, even if Secured Party accepts the
first offer received and does not offer the Collateral to more than one offeree.
(k) A written agreement to sell any Collateral, which
agreement Secured Party in good xxxxx xxxxx itself bound to perform, shall be
treated as a sale of such Collateral and Secured Party shall be free to carry
out such agreement. If such an agreement is then effective, Debtor shall not be
entitled to the return of any Collateral subject thereto, even if after the date
of such agreement all Events of Default shall have been cured or the Obligations
shall have been fully paid and performed.
(l) After deducting all costs and expenses of every kind
for taking, retaking, care, safekeeping, collecting, holding, preparing for
sale, selling, delivering and the like (including legal costs, insurance,
commission for sale, and reasonable attorney's fees and expenses) and all other
charges against the Collateral, Secured Party shall apply the residue of the
proceeds of any such sale or other disposition against any and all amounts
remaining unpaid under the Obligations, all in such order of priority as Secured
Party may determine in its sole discretion. Debtor shall remain liable for any
deficiency remaining after such application, and any surplus shall be returned
to Debtor.
10. WAIVER OF RIGHTS. Except for the written notice required under
Section 7 hereof, to the fullest extent permitted by law, Debtor hereby waives
notice, demand, presentment, protest, notice of dishonor, suit against or
joinder of any other person, and all other requirements necessary to charge or
hold Debtor liable with respect to the Obligations. Until Secured Party receives
all sums due with respect to the Obligations in immediately available funds,
Debtor shall not be released from liability unless Secured Party expressly
releases Debtor in a writing signed by Secured Party.
11. ACTIONS OR PROCEEDINGS. With respect to any legal action or
proceeding arising under this Agreement or any other Loan Document or concerning
the Obligations and/or the Collateral, Debtor to the fullest extent permitted by
law: (a) submits to the jurisdiction of the state and federal courts in the
State of Florida; (b) agrees that the venue of any such action or proceeding may
be laid in Dade County and waives any claim that the same is an inconvenient
forum; (c) stipulates that service of process in any such action or proceeding
shall be properly made if made on its registered service agent in the State of
Florida; and (d) WAIVES TRIAL BY JURY (as does Secured Party by virtue of its
acceptance of this Security Agreement). No provision of this Agreement or of the
Note shall limit Secured Party's right to serve legal process in any other
manner permitted by law or to bring any such action or proceeding in any other
competent jurisdiction.
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12. NOTICES. Except as otherwise provided in this Agreement for
service of legal process, any notice to Debtor shall be in writing and shall be
deemed sufficiently made when received by Debtor at the address set forth in
Section 4(g) hereof to the attention of X. Xxxxx Oakley, IV, Chief Financial
Officer of Debtor. Any notice to Secured Party shall be directed to the
attention of a Vice-President or higher ranking officer of Secured Party and
shall be made in writing in the foregoing manner and shall be deemed sufficient
when received by Secured Party at the following address: Barclays Bank PLC,
Latin America Regional Office, 000 Xxxxxxxx Xxxxxx, Xxxxx, Xxxxxxx 00000. Any
party may change its address for notice by giving written notice of the change
in accordance with this paragraph.
13. BUSINESS ENTITY. If Debtor is a corporation, partnership or
other business entity, then Debtor hereby further represents and warrants to
Secured Party that: (a) Debtor is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its creation and is duly
qualified to do business in those jurisdictions where the nature of its business
requires it to be so qualified; (b) Debtor has all requisite power and authority
(corporate or otherwise) to conduct its business, to own its properties, to
execute and deliver this Agreement and all other Loan Documents, and to perform
its obligations under the same; (c) the execution, delivery and performance of
this Agreement and all other Loan Documents have been duly authorized by all
necessary actions (corporate or otherwise) and do not require the consent or
approval of Debtor's stockholders (if a corporation) or of any other person
whose consent has not been obtained; and (d) the execution, delivery and
performance of this Agreement and all other Loan Documents do not and shall not
conflict with any provision of Debtor's by-laws or articles of incorporation (if
a corporation), partnership agreement (if a partnership) or trust agreement or
other document pursuant to which Debtor was created and exists or any other
agreement by which Debtor is bound.
14. INTEREST. All Obligations of Debtor to Secured Party arising
under this Agreement shall bear interest, from the date when due until paid in
full, at the rate then applicable under the Note. All such interest is and shall
be secured by the Collateral.
15. BINDING EFFECT; ASSIGNABILITY. The terms of this Agreement
shall inure to the benefit of Secured Party and its permitted successors and
assigns and shall be binding upon Debtor and Debtor's executors, personal
representatives, heirs and permitted successors and assigns. Without the prior
written consent of Secured Party (which it may grant or withhold in its sole
discretion), Debtor shall not assign this Agreement nor delegate any of Debtor's
duties hereunder.
16. TERM. This Agreement shall take effect when signed by Debtor
and delivered to Secured Party. This Agreement is a continuing agreement and
shall remain in full force and effect until all the Obligations shall have been
paid in full, unless earlier terminated by Secured Party in writing. After
termination of this Agreement and the full payment of the Obligations, Secured
Party shall turn over to Debtor any Proceeds of the Collateral received or held
by Secured Party and shall reassign the Collateral to Debtor without recourse to
Secured Party and without any representation or warranty or agreement of any
kind on the part of Secured Party.
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17. INTERPRETATION. Whenever used in this Agreement, the term
"person" means any individual, firm, corporation, trust or other organization or
association or other enterprise or any governmental or political subdivision,
agency, department or instrumentality thereof. Whenever used in this Agreement,
the terms "written" or "in writing" mean any form of written communication and
any communication by means of telex, telecopier device, telegraph or cable. Any
reference in this Agreement to a sum expressed in dollars or with the symbol
"U.S. $" or "$" means the lawful currency of the United States of America,
unless such reference expressly identifies another dollar-denominated currency.
Captions and paragraph headings contained in this Agreement are for convenience
only and shall not affect its interpretation. Whenever used in this Agreement
and unless the context otherwise requires, words in the plural include the
singular, words in the singular include the plural, and pronouns of any gender
include the other genders.
18. MISCELLANEOUS. Time is of the essence with respect to the
provisions of this Agreement. This Agreement may be amended but only by an
instrument in writing executed by the party to be burdened thereby. Any
provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction only, be ineffective only to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof or affecting the validity or enforceability of such
provision in any other jurisdiction. To the extent that Debtor may lawfully
waive any law that would otherwise invalidate any provision of this Agreement,
Debtor hereby waives the same, to the end that this Agreement shall be valid and
binding and enforceable against Debtor in accordance with all its terms. This
Agreement shall be governed by, and construed and enforced in accordance with,
the laws of the State of Florida, except that federal law shall govern to the
extent that it may permit Secured Party to charge, from time to time, interest
on the Obligations at a rate higher than may be permissible under Florida law.
WITNESS THE DUE EXECUTION HEREOF by Debtor as of the 30th day of
December, 1998.
Witnesses: THE COLONIAL BANCGROUP, INC.
/s/ Xxxxxxx X. XxXxxxx By: /s/ X. Xxxxx Oakley, IV
----------------------------------- -----------------------------------
Name: Xxxxxxx X. XxXxxxx, Esq. Name: X. Xxxxx Oakley, IV
Title: Chief Financial Officer
/s/ Xxxx X. Xxxxxxx, III
-----------------------------------
Name: Xxxx Xxxxxxx, Esq.
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PROMISSORY NOTE
(TERM)
U.S. $25,000,000.00 MONTGOMERY, ALABAMA
DECEMBER 30, 1998
FOR VALUE RECEIVED, THE COLONIAL BANCGROUP, INC., a Delaware
corporation, with its principal address at Xxx Xxxxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxx 00000 ("Borrower"), promise(s) to pay to the order of BARCLAYS BANK PLC,
a United Kingdom public limited company, with offices at 000 Xxxxxxxx Xxxxxx,
Xxxxx, Xxxxxxx 00000 ("Bank"), or at such other place as may be designated from
time to time by Bank, the principal amount of Twenty-Five Million United States
Dollars (U.S. $25,000,000.00), together with interest as provided in this
promissory note ("Note"), at the Interest Rate described in Section II below
until full and final payment of all sums, whether of principal and/or interest
and full satisfaction of all Obligations (as hereinafter defined) due and owing
to the Bank.
I. DISBURSEMENT AND MATURITY:
The loan hereunder (the "Loan") shall be disbursed on or before close
of business on December 30, 1998 in a single advance by payment of such amount
by Bank by wire transfer on behalf of Borrower to: SunTrust Bank, Central
Florida, N.A.; ABA #000000000; Beneficiary: Commercial Loan Operations;
Beneficiary Account Number: 9215004320; Re: For Further Credit to The Colonial
BancGroup, Inc. Commercial Loan #0000000000/83; Attention: Xxxxxx Xxxxxx,
Financial Institutions Group. The Loan shall mature on June 30, 1999.
II. INTEREST:
The unpaid principal balance hereunder shall bear interest at a rate
per annum equal to LIBOR plus 100 basis points (the "Interest Rate"). "LIBOR"
shall mean the rate (rounded, if necessary, up to the nearest 1/16 of 1%) at
which deposits in United States Dollars in an amount comparable to the Loan and
for a period equal to the interest period are available to the Bank in the
London Interbank Eurodollar Market two (2) London business days prior to the
first day of such interest period.
Principal shall be repaid in full upon maturity together with all
accrued interest and any and all other sums due under any Loan Document (as
defined below). Interest shall be paid on that day which falls thirty (30) days
from the date of this Note and on each and every successive date which falls
thirty (30) consecutive days thereafter (each, an "Interest Payment Date") until
repaid upon maturity or accelerated pursuant to the provisions hereof and of the
other Loan Documents, until all amounts required to be paid have been paid in
full.
Simultaneously herewith Borrower is executing a Security Agreement
(together with this Note, individually, a "Loan Document", and collectively, the
"Loan Documents"). Capitalized terms used and not otherwise defined in this Note
shall have the meanings respectively assigned to them in the Security Agreement.
Each use of a neuter, masculine, feminine or plural pronoun shall be deemed to
refer to the form of pronoun appropriate to the circumstance.
This Note evidences any and all principal amounts outstanding from time
to time (including future advances) in respect of the Loan and all other amounts
advanced from time to time or on behalf of Borrower by Bank pursuant to this
Note or any other Loan Document, together with all accrued and unpaid interest
thereon (including, without limitation, any and all interest and other amounts
accrued during the pendency of any bankruptcy, insolvency, receivership or other
similar proceedings, irrespective of whether such interest and other amounts are
allowed or allowable as claims in such proceedings), and all of the other
amounts to be paid by Borrower under this Note and performance of all
Obligations herein set forth or contained in any of the other Loan Documents and
any renewals, extensions or modifications of the same (collectively the
"Obligations"). All advances and payments made pursuant to this Note and the
other Loan Documents may be recorded by Bank on its books and records, and such
books and records, or any statement or certificate of Bank based upon such books
and records, shall be conclusive as to the existence and amounts thereof absent
manifest error.
III. PREPAYMENTS:
Unless otherwise provided for herein, the Borrower may prepay the Loan
in part or in whole without penalty on any Interest Payment Date.
IV. LOAN INSTRUMENTS AND COLLATERAL:
As security for the timely payment of the Obligations, Borrower
simultaneously with the execution of this Note and by means of the Security
Agreement, is granting to Bank a first-ranking and perfected security interest
in all of the issued and outstanding stock of Colonial Bank, a bank organized
under the laws of the State of Alabama and the wholly-owned bank subsidiary of
the Borrower ("Colonial Bank").
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V. GENERAL TERMS:
1. The occurrence of one or more of the following events,
circumstances or conditions shall constitute a default hereunder (each an "Event
of Default"):
(a) the failure of Borrower to pay to Bank, promptly when the
same shall become due (whether at scheduled maturity, upon acceleration
or otherwise) any portion of the Obligations including, but not limited
to, any installment of principal or of interest due under this Note or
any fees due and owing to Bank under or in connection with the terms of
this Note or any other Loan Documents; or
(b) the following events which have not been cured by Borrower
within fifteen (15) calendar days after Borrower has learned of the
event or which have not been cured by Borrower within fifteen (15)
calendar days after Bank gives notice to Borrower of the occurrence of
the event, whichever occurs first: (i) the occurrence of any other
default under any Loan Document between Bank and Borrower; (ii) the
occurrence of any default under any other agreement, loan or credit
facility which may be entered into between Bank and Borrower; (iii) the
failure of Borrower to perform any agreement, term, covenant or
provision hereunder; (iv) the filing of any petition under the United
States Bankruptcy Code or any similar federal or state statute by
Borrower, or the filing of an involuntary petition by any individual or
entity against Borrower pursuant to the United States Bankruptcy Code
or any similar federal or state statute, which petition is not
dismissed within sixty (60) days of the date of filing thereof; (v) the
appointment of a receiver for Borrower or Colonial Bank; (vi) the
making of a general assignment for the benefit of creditors by, or the
insolvency of, Borrower or Colonial Bank; (vii) the entry of a judgment
against the Borrower or Colonial Bank by any court, tribunal or
administrative agency, in an amount of not less than U.S. $50,000,000,
which is not vacated or bonded within thirty (30) days following the
entry or issuance thereof; (viii) the issuance of any writ of
attachment or writ of garnishment against any substantial portion of
the property of Borrower or Colonial Bank which is not vacated within
thirty (30) days following issuance; (ix) the dissolution, merger,
consolidation or reorganization of Borrower or Colonial Bank without
the prior written consent of Bank; (x) the reasonable determination by
Bank that a material adverse change has occurred in the financial
condition, affairs or prospects of Borrower or Colonial Bank which is
not cured or corrected to the reasonable satisfaction of Bank within
thirty (30) days following notice by Bank; and (xi) any representation
or warranty made by Borrower in connection the Loan proves to have been
false or materially misleading when made.
2. Upon or at any time after the occurrence of any Event of
Default, the indebtedness evidenced by this Note and all other Obligations of
Borrower to Bank, however created and existing, under this Note and any other
Loan Document shall at the option of Bank, accelerate and immediately become due
and payable, without demand upon or notice to Borrower, and Bank shall be
entitled to exercise any of the other remedies set forth herein and in the other
Loan Documents or as otherwise provided by law. Any delay or failure by Bank to
exercise any remedy hereunder or any forbearance by Bank in the exercise or
partial exercise of any remedy hereunder shall not be deemed to constitute a
waiver of any such remedy nor to preclude Bank from any further exercise of any
such remedy or any other remedy provided hereunder or by law.
3. Upon the occurrence and during the continuance of any Event of
Default, Bank is authorized and may, at its sole discretion, exercise or
otherwise enforce, at any time and from time to time, any one or more of Bank's
rights, privileges and/or remedies, at law or in equity, or as provided under
this Note or any Loan Document, without exhausting, pursuing or enforcing any
other right and without regard to any act or omission of Bank, without notice
(except as set forth in Section V.1.(b) above) to or demand upon Borrower to the
fullest extent permitted by applicable law (the giving of notice or demand being
expressly waived by Borrower); and Bank may, in addition to all other rights and
remedies set off and apply any indebtedness owing by Bank or any agency, branch
or affiliate of Bank to Borrower against the indebtedness evidenced by this
Note, although then contingent or unmatured, and may apply directly or through
any agency, branch, office or affiliate any and all deposits, whether general or
special, time or demand, provisional or final, individual or joint, and other
assets and properties at any time held by, under the control or custody or
otherwise in possession of Bank or any agency, branch, office, or affiliate of
Bank for the credit, account or benefit of Borrower against any and all of the
Obligations hereunder or under any other Loan Document, whether or not demand
for payment has been made. Borrower hereby grants Bank a continuing security
interest in and to all such deposits, assets, properties and indebtedness in the
possession of Bank, its branches, agencies, offices and affiliates and
authorizes each such person in the case of an Event of Default to so set off and
apply such amounts at such time and in such manner as Bank may direct as if each
such person were a direct creditor of Borrower in the full amount of all
Obligations hereunder. Bank agrees to notify Borrower after any such setoff and
application; provided, however, that the failure to give such notice shall not
affect the validity of such setoff and application; and Bank shall be deemed to
have exercised such right of setoff and to have made a charge against any such
money immediately upon the occurrence of such Event of Default even though such
setoff, application and charge is made or entered on the books of Bank
subsequent thereto. Bank, in its sole discretion, may proceed against Borrower
without first executing against any Collateral held as security for Borrower's
Obligations hereunder and Borrower hereby expressly waives any defense it may
have against Bank for failure to execute against the Collateral.
4. From and after an Event of Default, Bank may transfer this
Note and any other Loan Document and deliver to the transferee(s) all or any of
the property, if any, then held by Bank as security or collateral for the
indebtedness evidenced by this Note and the transferee(s) shall thereupon become
vested with all the rights and
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powers given to Bank under the Loan Documents with respect thereto; and, Bank
shall thereafter be forever relieved and fully discharged from any liability or
responsibility to Borrower, but shall retain all rights and powers hereby
conferred with respect to any rights or property not so transferred.
5. Except as otherwise set forth herein, the Borrower hereby
waives presentment for payment, demand, notice of demand, notice of non-payment
or dishonor, protest and notice of protest, notice of renewal, modification or
extension of time and all other notices except as otherwise specified in this
Note and agrees that none of the terms or provisions hereof may be waived,
altered, modified or amended without the written consent of Bank. Any waiver of
any provision hereof shall be effective only in the specific instance and for
the specific purpose for which such waiver is granted.
6. Borrower agrees to on demand pay all reasonable out-of-pocket
costs and expenses, including reasonable attorneys' fees and related costs,
incurred by the Bank in the collection of the indebtedness evidenced by this
Note or any other Loan Document and any modification hereof or thereof, or in
enforcing or protecting any of the rights, powers, remedies and privileges of
the Bank hereunder or under any of the Loan Documents.
7. Both principal and interest evidenced by this Note shall be
payable in lawful currency of the United States of America to Bank at its
offices at 000 Xxxxxxxx Xxxxxx, Xxxxx, Xxxxxxx 00000 or such other offices as
Bank may specify to Borrower in writing, or at such other place designated by
Bank, from time to time, in writing, in immediately available (same day) funds
without deduction for or on account of any present or future taxes, duties or
other charges levied or imposed on this Note, the proceeds hereof, or on
Borrower or holder hereof by any government, or any instrumentality, authority
or political subdivision thereof and without any other setoff or deduction
whatsoever. Borrower agrees, upon the request of Bank, to immediately pay all
such taxes (other than taxes on income of the holder hereof), duties and other
charges, in full, in addition to the principal and interest evidenced by this
Note.
8. Borrower shall indemnify and hold Bank harmless against, and
reimburse Bank for, any loss or expenses reasonably incurred by Bank (including
without limitation any loss or expenses incurred to liquidate or re-employ
deposits or other funds acquired by Bank to fund or maintain a loan hereunder)
as a result of any payment or prepayment (whether or not authorized or required
hereunder) of the Loan on any day other than the last day of the relevant
interest period.
If it shall become unlawful for Bank to fund or continue to maintain
the Loan evidenced hereby or to perform Bank's obligations hereunder, upon
Bank's demand, Borrower shall prepay in full all principal outstanding hereunder
together with accrued interest thereon and all other amounts payable hereunder
and upon such demand Bank shall have no further obligation to make the Loan.
If by reason of the introduction of any law, regulation or other legal
requirement or any change in any law, regulation or other legal requirement or
the interpretation or administration of any law, regulation or other legal
requirement or in compliance with any request or requirement from any central
bank or any fiscal, monetary or other authority whatsoever (whether or not
having the force of law) (a) Bank shall become subject to any tax (other than
any tax based on Bank's net income) with respect to the indebtedness
contemplated herein and or payment of all or any part of the indebtedness
contemplated herein; or (b) the basis of taxation of payments to Bank in respect
of all or any part of the indebtedness contemplated herein shall be changed or
any additional taxes or an increase in existing taxes shall be imposed (other
than any increase in any tax based on Bank's net income); or (c) any reserve
requirements (not reflected in the calculation of the Eurodollar Rate) shall be
imposed, modified or deemed applicable against assets held by or deposits in or
for the account of loans by the lending office of the Bank; or (d) the manner in
which the Bank allocates capital resources to its obligations hereunder or any
ratio (whether cash, capital adequacy, liquidity or otherwise) which the Bank is
required or requested to maintain shall be affected; and the result of any of
the foregoing shall be to increase the cost to the Bank of maintaining the Loan
or to cause the Bank to suffer a reduction in the rate of return on the Loan by
an amount that the Bank deems to be material, then (i) the Bank will, as soon as
reasonably practicable, notify the Borrower of the amount which Bank shall
reasonably deem necessary to compensate Bank in respect of the Loan as a result
of such event, and (ii) the Borrower shall within thirty (30) days after such
notice pay such amount to the Bank, but shall also have the right to prepay the
whole (but not part only) of the Loan subject to the provisions of this
paragraph.
9. Nothing contained in this Note or any other agreement between
the parties hereto shall be deemed to establish or require the payment of a rate
of interest in excess of the rate that may be legally charged on loans or
extensions of credit made by the Bank under the laws of the State of Florida or
of the United States, whichever is applicable and higher as such rate now exists
or may hereafter be increased or the ceiling, if any, on the legal rate of
interest eliminated, by legislation or otherwise ("Maximum Rate"). In the event
that the rate of interest so contracted should exceed the Maximum Rate, whether
as a result of its fluctuation, acceleration of the maturity hereof or
otherwise, the rate of interest to be paid hereunder shall be automatically
reduced to the Maximum Rate and so much of any interest reserved, charged or
taken as would cause the same to exceed the Maximum Rate shall be deemed not to
be a credit against interest but rather a prepayment on account of and be
automatically credited against outstanding principal evidenced hereby regardless
of how the same may appear on Bank's or Borrower's books or records; provided,
however, no such application shall operate to cure or as a waiver of any Event
of Default occasioning acceleration.
10. All amounts outstanding hereunder shall bear interest during
the continuance of any Event of Default hereunder or under any Loan Document
until paid in full, to the extent permitted by law, at an annual
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effective rate of simple interest (computed on the basis of actual days elapsed
in a 360-day year) equal to four percent (4 %) in excess of the otherwise
applicable Interest Rate.
11. All payments by Borrower shall be applied, first, to the
payment of any indemnities or reimbursements owed to the Bank under the Loan
Documents; second, to the payment of past-due interest; third, to accrued and
unpaid interest; and finally, to the payment (or prepayment, if permitted) of
the Loan.
12. TIME IS OF THE ESSENCE IN THE PAYMENT AND PERFORMANCE OF THIS
PROMISSORY NOTE. WHENEVER, HOWEVER, A PAYMENT HEREUNDER BECOMES DUE ON A DATE ON
WHICH BANKS ARE NOT OPEN FOR THE CONDUCT OF A GENERAL COMMERCIAL BANKING
BUSINESS IN MONTGOMERY, ALABAMA AND MIAMI, FLORIDA (A "BUSINESS DAY"), THE DUE
DATE FOR SUCH PAYMENT SHALL BE EXTENDED TO THE NEXT SUCCEEDING BUSINESS DAY, AND
INTEREST APPLICABLE TO SUCH AMOUNT SHALL ACCRUE DURING ANY SUCH EXTENSION AND
SHALL BE DUE AND PAYABLE ON SUCH NEXT SUCCEEDING BUSINESS DAY.
13. Any notice herein required or permitted to be given or service
of process in any suit, action or other proceeding to enforce this Note or any
of the other Loan Documents shall be made to Borrower by delivery to Borrower at
the address set forth on page one hereof or as then specified on Bank's records,
and shall be deemed to have been given when so delivered to the attention of X.
Xxxxx Oakley, IV, Chief Financial Officer of the Borrower. It shall be
Borrower's sole responsibility to notify Bank of any change in Borrower's
address and Bank is authorized to rely solely on its records, without any
independent investigation, for purposes of giving notice as specified in this
paragraph 13.
14. Borrower agrees that this Note has been made under and shall
be governed by the laws of the State of Florida, without giving effect to the
choice of law provisions thereof, in all respects (except as to interest rates
which are or may be preempted by the federal laws of the United States),
including matters of construction, validity and performance, and further
consents that jurisdiction and venue in respect of any dispute arising out of or
otherwise in connection with this Note shall be in Dade County, Florida and
waives any and all objections thereto.
15. If any provision of this Note shall be deemed unenforceable
under applicable law, such provision shall be ineffective but only to the extent
of such unenforceability, without invalidating the remainder of such provision
or the remaining provisions of this Note.
16. Borrower shall pay or reimburse on demand any and all
reasonable costs and expenses incurred by Bank in connection with the
preparation, execution and delivery of this Note and any other Loan Document,
including, without limitation, the reasonable fees and disbursements of the
Bank's legal counsel.
17. The Bank may sell participations in the Loan to other
financial institutions and, in connection therewith, deliver to such institution
any information which the Bank may have in its possession concerning the
Borrower or Colonial Bank.
18. TO THE FULL EXTENT ALLOWED BY APPLICABLE LAW, IN ANY DISPUTE
WITH BANK BORROWER AGREES THAT IT WILL NOT SEEK, RECOVER OR RETAIN ANY AND
HEREBY WAIVES ANY RIGHT IT MAY HAVE TO RECEIVE SPECIAL, EXEMPLARY, PUNITIVE
AND/OR CONSEQUENTIAL DAMAGES.
19. BANK AND BORROWER AND OTHER OBLIGOR(S) HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT ANY MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION BASED HEREON OR ARISING OUT OF, UNDER OR OTHERWISE IN
CONNECTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(ORAL OR WRITTEN) OR ACTIONS OF ANY PARTY. THIS PROVISION IS A MATERIAL
INDUCEMENT FOR BANK EXTENDING CREDIT TO BORROWER.
IN WITNESS WHEREOF, the undersigned has/have executed this Note on the
30th day of December, 1998.
Witnesses THE COLONIAL BANCGROUP, INC.
/s/ Xxxxxxx X. XxXxxxx By: /s/ X. Xxxxx Oakley, IV
----------------------------------- -----------------------------------
Name: Xxxxxxx X. XxXxxxx, Esq. Name: X. Xxxxx Oakley, IV
Title: Chief Financial Officer
/s/ Xxxx X. Xxxxxxx, III
-----------------------------------
Name: Xxxx Xxxxxxx, Esq.
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