PROMISSORY NOTE
November 16, 1995 $25,000,000
For value received, the undersigned, Capital City Bank Group, Inc., a
corporation organized and existing under the laws of the state of Florida
(hereinafter "Company") promises to pay to the order of SunTrust Bank,
Atlanta f/k/a Trust Company Bank, a Georgia banking corporation,
(hereinafter the "Bank") at its offices in Atlanta, Georgia, or at any
other place designated by the holder hereof, in lawful money of the United
States of America, on the Revolving Maturity Date, or at such earlier date
as hereinafter provided, the principal sum of
TWENTY-FIVE MILLION DOLLARS ($25,000,000)
or such lesser amount of loans and other financial accommodations as may at
the Bank's sole discretion from time to time be advanced or, upon
repayment, readvanced to the Company by the Bank hereunder together with
interest from the date hereof on the unpaid principal balance at such
annual rate or rates of interest as shall be computed and paid in
accordance with the terms and conditions hereinafter set forth.
This Note evidences the obligation of the Company to repay, with
interest, any and all present and future indebtedness of the Company for
loans and financial accommodations at any time hereafter made or extended
by the Bank hereunder up to the aggregate principal amount of $25,000,000
at any one time outstanding. The payment of any indebtedness evidenced by
this Note shall not affect the enforceability of this Note as to any
future, different or other indebtedness evidenced hereby.
Section 1. Definitions. As used herein, the following terms shall
have the meanings set forth below:
(A) "Advances" shall mean any portion of the outstanding principal
balance hereof bearing interest as a Cost of Funds Advance, a Prime Rate
Advance or a LIBOR Advance, each individually called an "Advance" and
collectively "Advances".
(B) "Business Day" shall mean (i) with respect to Interest Periods
applicable to the LIBOR Rate, a day on which the Bank is open for business
and on which foreign exchange markets in Atlanta, Georgia, and London are
open for business; and (ii) with respect to all other Interest Periods, and
for all other purposes hereunder, a day on which the Bank, and commercial
banks in New York, New York are open for business.
(C) "Cost of Funds Rate" shall mean, as of any date of determination
thereof, that rate per annum which is forty-five one hundredths of one
percent (.45%) per annum above that rate of interest per annum representing
the cost to the Bank of funds in an amount and for an Interest Period
similar to a requested Cost of Funds Advance all as determined by the Bank
in accordance with its usual method of determining its cost of funds.
(D) "Cost of Funds Advance" shall mean Advances which bear interest
at the Cost of Funds Rate each individually called a "Cost of Funds
Advance" and collectively "Cost of Funds Advances."
(E) "Interest Period" shall mean, with respect to any borrowing as to
which the Company has elected the LIBOR Rate, a period of 30, 60, 90, 120,
150, or 180 days, and shall mean with respect to any borrowing as to which
the Company has elected the Cost of Funds Rate or the Prime Rate a period
of from 1 up to 180 days, provided however, (a) if any Interest Period
would otherwise end on a day which is not a Business Day, that Interest
Period shall be extended through the next succeeding day which is a
Business Day, unless such Business Day falls in another calendar month, in
which case the Interest Period shall end on the next preceding Business
Day, and (b) no Interest Period shall extend beyond the Revolving Maturity
Date.
(F) "LIBOR Rate" shall mean, as of any date of determination thereof,
that rate per annum which is forty-five one hundredths of one percent
(.45%) per annum above the quotient of
(i) the per annum rate of interest determined by the Bank to be the
rate quoted by the Bank at which U.S. dollar deposits for the relevant
Interest Period in an amount comparable to the principal amount of the
applicable LIBOR Advance, are offered to the Bank by other prime banks in
the London Inter-Bank Market as of 11:00 a.m., London time, on the day
which is two Business Days prior to the first day of such Interest Period,
divided by
(ii) a percentage equal to 1.00 minus the stated maximum rate of all
reserve requirements (expressed as a percentage) as specified in Regulation
D of the Board of Governors of the Federal Reserve System (including,
without limitation, any marginal, emergency, supplemental, special or other
reserves) that would be applicable on the day which is two Business Days
prior to the first day of the Interest Period during which the LIBOR Rate
is to be applicable to eurocurrency liabilities in excess of $100,000 and
with a maturity day as of the last day of the Interest Period, all as
conclusively determined by the Bank, such sum to be rounded up to the
nearest whole multiple of 1/100 of 1%.
(G) "LIBOR Advances" are Advances that bear interest at the LIBOR
Rate, each individually called a "LIBOR Advance" and collectively "LIBOR
Advances".
(H) "Prime Rate" shall mean that rate of interest from time to time
publicly announced by the Bank as its prime rate, which rate shall change
simultaneously with any change in the prime rate of the Bank.
(I) "Prime Rate Advances" are Advances that bear interest at the
Prime Rate, each individually called a "Prime Rate Advance" and
collectively "Prime Rate Advances".
(J) "Revolving Maturity Date" means November 16, 1998.
(K) "Subsidiary" shall mean, a corporation of which shares of stock
having ordinary voting power to elect a majority of the board of directors
or other managers are owned, or the management of which is otherwise
controlled, directly or indirectly through one or more intermediaries, by
the Company, collectively referred to as "Subsidiaries".
Section 2. Interest Rates. The Company shall pay interest upon each
Advance comprising the unpaid principal balance from time to time
outstanding hereunder from the date hereof until the maturity of this Note,
whether by acceleration or otherwise, at a rate per annum, calculated on
the basis of a 360 day year and upon the actual number of days elapsed,
equal to any one of the following described rates of interest, any one of
which may be selected by the Company in accordance with the terms
hereinafter provided:
(A) The Cost of Funds Rate for such Interest Period as the Company
shall select. Unpaid interest accruing at such rate will be due and
payable on the last day of March, June, September and December during the
term of this Note.
(B) The LIBOR Rate for such Interest Period as the Company may
select. Unpaid interest accruing at such rate will be due and payable on
the last day of March, June, September and December during the term of this
Note.
(C) The Prime Rate from time to time in effect for such Interest
Period as the Company may select. Unpaid interest accruing at such rate
will be due and payable on the last day of March, June, September and
December during the term of this Note.
Section 3. Method of Making Advances and Selection of Interest Rates.
When the Company desires an Advance hereunder, or if the Company desires to
renew or convert an Advance pursuant to Section 5 below, the Company shall
advise the Bank as to the amount of such Advance and the interest rate to
be applicable thereto by giving to the Bank either written or telephonic
notice thereof (which telephonic notice shall be promptly confirmed in
writing) in accordance with the following terms and conditions:
margin change at this point
(A) If the Company shall elect the LIBOR Rate, notification of such
election and the duration of the Interest Period to be applicable thereto,
shall be given to the Bank by the Company before two o'clock p.m.
Atlanta time on the second Business Day prior to the first day of the
applicable Interest Period.
(B) If the Company shall elect the Cost of Funds Rate or the Prime
Rate notification of such election, and the duration of the Interest Period
applicable thereto, shall be given to the Bank by the Company before two
o'clock p.m. Atlanta time on the first Business Day of the applicable
Interest Period.
Section 4. Repayment of Principal. The Company shall pay the entire
outstanding principal balance relative to each Cost of Funds Advance, Prime
Rate Advance and LIBOR Advance on the last Business Day of the applicable
Interest Period.
Section 5. Renewals and Conversion of Advances. The Company may on
any Business Day, renew or convert any outstanding Advance into an Advance
of the same or another type in the same aggregate principal amount provided
that (a) renewal or conversion of an Advance shall be made only on the last
Business Day of the then current Interest Period applicable thereto and (b)
the Bank is advised of the Company's election to renew or convert such
Advance in accordance with the provisions set forth in Section 3 above.
Section 6. Failure to Select Interest Rates. If no interest rate
basis has been elected for any Advance or for the principal balance
outstanding hereunder prior to maturity of this Note, or if such election
shall not be timely or shall be deemed canceled as herein provided, then
the applicable rate of interest during any such period shall be the 90-day
LIBOR Rate or the Prime Rate, whichever is less.
Section 7. Prepayment and Unavailability of Dollar Deposits. No
prepayment of any Advance shall be permissible during the Interest Period
applicable thereto, and any election of any interest rate hereunder shall
be final for the relevant Interest Period, provided that, with regard to
the LIBOR Rate election, if Bank should determine that dollar deposits in
an aggregate amount comparable to the amount of a requested LIBOR Advance
for periods equal to the Interest Period elected by the Company, are not
being offered to the Bank in the London Inter-Bank Market, then Bank shall
promptly give notice of such fact to the Company and said election shall be
deemed canceled. Thereafter, in the event that the Bank determines that
such dollar deposits are again being offered to the Bank in the London
Inter-Bank Market, then Bank shall promptly give notice of such fact to the
Company, and of the fact that the Bank can again consider a LIBOR Rate
election.
Section 8. Conversion to Term Loan. The Bank agrees, on the terms
and conditions contained herein, to make a loan (the "Term Loan") to the
Company on the Revolving Maturity Date in a principal amount up to but not
exceeding the outstanding principal balance of all Advances made hereunder
as of such date. The Term Loan shall be repayable, and the Company hereby
promises to pay to the order of Bank principal and interest on the Term
Loan, as follows:
The principal amount of the Term Loan will be repaid in twenty-eight
(28) consecutive quarterly installments, each in an amount equal to two and
one-half of one percent (2.5%) of the outstanding principal amount of the
Note as of such date. Accrued but unpaid interest on the outstanding
principal balance shall be payable quarterly on the same day as principal
payments. The first such installment shall be due on March 30, 1999, with
subsequent installments on the last day of each March, June, September and
December, and thereafter to and including December 31, 2005 provided,
however, that the last such installment shall be in the amount necessary to
repay in full all accrued but unpaid interest and the unpaid principal
amount of the Term Loan.
The Bank's obligation to make the Term Loan shall be subject to the
following:
(A) All of the representations and covenants contained in Sections 8
and 9 of this Note shall be true and correct as of the date of the Term
Loan, and Company shall be in full compliance therewith.
(B) Company shall execute and deliver to Bank a Pledge and Security
Agreement substantially in the form of Exhibit A, wherein Company shall
pledge to Bank, in order to secure Company's obligation and indebtedness
under the Term Loan, bank Subsidiary stock of a value at least equal to one
hundred twenty-five percent (125%) of the principal amount of the Term
Loan.
The Company shall pay interest upon the unpaid principal balance from
time to time outstanding under the Term Loan from the date hereof until the
maturity of the Term Loan, whether by acceleration or otherwise, at a rate
per annum, calculated on the basis of a 360 day year and upon the actual
number of days elapsed, equal to any one of the following described rates
of interest, any one of which may be selected by the Company in accordance
with the terms of the Note:
(A) The Cost of Funds Rate for such Interest Period as the Company
shall select.
(B) The LIBOR Rate for such Interest Period as the Company may
select.
(C) The Prime Rate from time to time in effect for such Interest
Period as the Company may select.
Section 9. Representations and Warranties. The Company represents
and warrants to Bank as follows:
(A) The Company is a corporation validly existing and in good
standing under the laws of the state of Florida.
(B) The execution and delivery of this Note and the performance by
the Company of its provisions have been duly authorized by all requisite
corporate action. This Note is enforceable against the Company in
accordance with its terms except to the extent enforcement may be limited
by any applicable bankruptcy or insolvency laws.
(C) The most recent consolidated balance sheet and statement of
income and retained earnings of the Company and its Subsidiaries provided
by the Company to Bank give a true and fair view of the state of affairs of
the Company and of the Company and its Subsidiaries as of such dates, and
there has been no material adverse change in the financial condition of the
Company or the Subsidiaries since such dates.
(D) The Company will be in full compliance with all terms and
conditions of this Note at the time any request for an Advance is made
hereunder.
Section 10. Covenants. Prior to the maturity of this Note, whether
by acceleration or otherwise, the Company will do each of the following:
(A) Within 45 days after the end of each fiscal quarter of the
Company, the Company will provide to the Bank consolidated financial
statements of the Company and its Subsidiaries.
(B) Within 90 days after the end of each fiscal year of the Company,
the Company will provide to the Bank (i) audited consolidated financial
statements of the Company and its Subsidiaries for such fiscal year, and
(ii) financial statements of only the Company for such fiscal year.
(C) The Company shall promptly provide to the Bank such information
respecting the condition or operation, financial or otherwise, of the
Company or its Subsidiaries as the Bank may from time to time reasonably
request.
(D) The Company shall preserve and maintain its existence as a
corporation.
(E) The Company will maintain a minimum consolidated tangible
shareholder's equity of $60,000,000.
(F) The Company will limit payment of dividends to its shareholders
in the aggregate to 50% of the Company's cumulative net consolidated income
after December 31, 1993.
(G) (i) The Company (on a consolidated basis) and Capital City
Bank will each maintain minimum leverage ratios of 6.5%, minimum Tier 1
Capital to Risk-Weighted Assets ratios of 7.00%, and minimum Tier 1 Capital
plus Tier 2 Capital to Risk-Weighted Assets ratios of 10.00%.
(ii) The terms "Tier 1 Capital", "Tier 2 Capital" and "Risk-
Weighted Assets" as used in this subsection (G) shall have the meanings
assigned to them pursuant to 12 C.F.R. 3.1 et seq.
(H) The Company (on a consolidated basis) and Capital City Bank, each
will maintain minimum Return on Average Assets Ratios of 0.90% each.
(I) The Company's consolidated and each bank Subsidiary's ratio of
non-performing assets (i.e. other real estate owned plus non-accrual loans)
shall not exceed 2.50% of related assets (i.e. net loans plus other real
estate).
(J) Company shall cause all bank Subsidiaries to each maintain at all
times reserves equal to 80% of total nonperforming loans (i.e. nonaccrual,
and restructured loans).
(K) The Company will not create, incur, assume, or suffer to exist,
or permit any Subsidiary to create, incur, assume, or suffer to exist any
lien or encumbrance upon or with respect to any of its properties, now
owned or hereafter acquired, including, without limitation, the common
stock of bank Subsidiaries, except:
(i) Any lien or encumbrance (purchase money or
otherwise)incurred by the Company or any Subsidiary in the normal course of
its business which does not materially interfere with the use and enjoyment
of the property so encumbered or materially impair the value of the
property subject to said lien, provided that the aggregate amount of all
indebtedness secured by such liens or encumbrances shall at no time exceed
$1,000,000; provided, however, the Company will not create, or allow to
exist, any lien or encumbrance upon any of the stock of any Subsidiary;
(ii) Any lien or encumbrance on any loans owned by Capital
City Bank secured by 1-4 family residential properties, including, without
limitation, open-end loans and loans extended under lines of credit (said
loans which are owned by Capital City Bank are hereinafter referred to as
"Residential Mortgages") if such lien or encumbrance is granted to the
Federal Home Loan Bank ("FHLB") to secure repayment of loans or advances
made by FHLB to Capital City Bank, provided, however, the unpaid principal
balance from time to time outstanding upon the loans or advances made by
FHLB to Capital City Bank shall at no time exceed 65% of the unpaid
principal balance of the Residential Mortgages securing such loans or
advances; and
(iii) Any lien or encumbrance on the common stock of a bank
Subsidiary or Subsidiaries granted by the Company in favor of Bank pursuant
to and in accordance with the Pledge and Security Agreement referenced in
Section 8 (B) hereof.
(L) Neither the Company nor any Subsidiary will incur or suffer to
exist any indebtedness other than (i) the obligations owing to Bank
pursuant to this Note; (ii) any indebtedness secured by a lien or
encumbrance in accordance with the provisions of Section 9(K)(i) or
9(K)(ii) above; and (iii) indebtedness incurred in the ordinary course of
business.
(M) The Company will at all times be in material compliance with, and
the Company will cause each bank Subsidiary to at all times be in material
compliance with, all applicable federal, state, and local banking laws,
rules, and regulations.
(N) The Company's Chief Executive Officer or Chief Financial Officer
will provide the Bank a certificate within forty-five (45) days after the
end of each fiscal quarter and within sixty (60) days after the end of each
fiscal year certifying that the Company is in full compliance with the
terms and conditions of this Note.
(O) The Company shall cause to be delivered a favorable written
opinion of counsel for the Company with respect to the matters set forth in
Section 9 of this Note, and such other matters deemed necessary by the
Bank.
Section 11. Events of Default. Any one or more of the following
conditions or events shall constitute an Event of Default hereunder:
(A) The Company shall fail to pay any interest or other sums owing
pursuant to this Note within five calendar days after said sum shall be due
and payable; or
(B) If the Company or any Subsidiary should fail to comply with the
terms and conditions of any other agreement between Company and Bank and
such failure to comply is not cured to the reasonable satisfaction of Bank
within ten (10) days after Bank delivers written notice thereof to Company;
or
(C) (i) If the Company should liquidate, dissolve, or enter into any
transaction of merger or consolidation in which the Company is not the
surviving entity; or (ii) If during the term of this Note the Company or
any of its Subsidiaries should sell, transfer or otherwise dispose of
(whether in one transaction or a series of transactions) assets which in
the aggregate exceed 10% of the consolidated assets of the Company and its
Subsidiaries; or (iii) If during the term of this Note the Company should
cause or allow any one or more Subsidiaries to liquidate, dissolve or enter
into any transaction of merger or consolidation (other than a merger or
consolidation with the Company or another Subsidiary) if the aggregate
assets of all such Subsidiaries, plus the aggregate assets sold,
transferred or otherwise disposed of pursuant to (ii) above, exceeds 10% of
the consolidated assets of the Company and its Subsidiaries; or
(D) If any representation or warranty made by the Company to Bank in
connection with this Note shall be false or misleading in any material
respect as of the date made; or
(E) If final judgment for the payment of money in excess of $500,000
should be rendered against the Company or any Subsidiary and the same shall
remain unpaid, unstayed on appeal, undischarged, or undismissed for a
period of thirty (30) days; or
(F) Any condition shall exist or any event shall occur, the existence
or occurrence of which shall cause, or permit or allow any creditor of the
Company or any Subsidiary to cause, any obligation of the Company or such
Subsidiary for borrowed money with an unpaid principal balance in excess of
$500,000.00 to become due prior to its stated maturity date or prior to its
regularly scheduled dates of payment; or
(G) The Company shall fail to comply with the provisions of any of
the covenants set forth above in Section 9 of this Note; or
(H) If any person or entity, or any two or more related persons or
entities, shall in the aggregate acquire or hold beneficial ownership of
30% or more of the outstanding voting securities of the Company, other than
any person or entity, or any two or more related persons or entities, which
own or hold beneficial ownership of 30% or more of the outstanding voting
securities of the Company as of December 31, 1994. (The term "beneficial
ownership" as used in this subsection (H) shall have the same meaning as
provided in Rule 13d-3 promulgated by the Securities and Exchange
Commission under the Securities Exchange Act of 1934, as amended); or
(I) The failure to execute and deliver the Security Agreement, or the
Security Agreement shall at any time after its execution cease to be in
full force and effect or cease to create a valid and perfected first
priority security interest in the Collateral; or if the validity or
enforceability of the Security Agreement shall be contested by the Company;
or if the Company shall fail to perform any of its obligations under the
Security Agreement; or
(J) Any involuntary petition is filed against the Company or any
Subsidiary under any bankruptcy, reorganization, arrangement, insolvency,
readjustment of debt, dissolution or liquidation law of any jurisdiction,
whether now or hereafter in effect and such petition shall remain
undismissed for a period of 60 days or the Company or such Subsidiary
approves, consents, or acquiesces thereto; or any bank regulatory agency
shall commence proceedings that may result in the appointment of a
custodian, receiver or trustee for all, or a substantial part of, the
properties or assets of the Company or any Subsidiary; or
(K) If the Company or any Subsidiary makes an assignment for the
benefit of creditors or files a voluntary petition seeking relief under any
provision of any bankruptcy, reorganization, arrangement, insolvency or
readjustment of debt, dissolution or liquidation law of any jurisdiction,
whether now or hereafter in effect.
Section 12. Remedies. (A) Upon the occurrence of any one or more
of the Events of Default set forth above in Section 11 as Events of Default
(A) through (I) then Bank may, at its option, accelerate the maturity of
this Note and declare the entire unpaid principal balance thereof, all
accrued but unpaid interest thereon, and any other sums then due and owing
pursuant to this Note, to be immediately due and payable without
presentment, demand, protest, or other notice of any kind, all of which are
hereby waived by the Company.
(B) Upon the occurrence of any one of the Events of Default set forth
above in Section 11 as Events of Default (J) and (K) then simultaneously
therewith the maturity of this Note shall be accelerated and the entire
unpaid principal balance thereof, all accrued but unpaid interest thereon,
and any other sums owing pursuant to this Note, will be immediately due and
payable without presentment, demand, protest, or other notice of any kind,
all of which are hereby waived by the Company.
(C) The Bank shall make no further disbursements hereunder (i) upon
the occurrence of any one or more of the Events of Default set forth above
in Section 11, or (ii) on and after the Revolving Maturity Date.
Section 13. Default Rate. The Company shall pay interest on any
unpaid and overdue principal hereof from and including the date payment
thereof was due, but excluding the date of actual payment, at an interest
rate of two percent (2%) per annum above the Prime Rate.
Section 14. Miscellaneous. This Note shall be delivered to and
accepted by the Bank in Atlanta, Georgia, and shall be governed by, and
construed and enforced in accordance with the laws of the State of Georgia.
Section headings have been inserted for convenience only and shall not be
construed as part of this Note. Any accounting terms used in this Note but
not specifically defined herein shall have the meanings generally given to
such terms under generally accepted accounting principles. If this Note is
collected by law or through an attorney at law, the Company shall pay all
costs of collection plus reasonable attorneys' fees. The Bank is hereby
authorized to set-off, without prior notice, any deposit, account or other
indebtedness owed by Bank to the Company against any obligation owing or
arising under this Note. The failure or forbearance of the Bank to
exercise any right granted hereunder or otherwise granted by law, shall not
constitute a waiver of such right. This Note shall be binding upon the
Company and its successors and assigns. The Company hereby waives
diligence, presentment, demand, protest and notice of any kind whatsoever.
The Company has caused this Note to be executed, by its duly
authorized officer(s) on the day and year first above written.
CAPITAL CITY BANK GROUP, INC.
By: /s/ J. Kimbrough Davis
Title: J. Kimbrough Davis
Senior Vice President and Chief
Financial Officer
Exhibit A
PLEDGE AND SECURITY AGREEMENT
THIS PLEDGE AND SECURITY AGREEMENT (this "Pledge Agreement"),
dated as of November 16, 1996 by Capital City Bank Group, Inc., a
corporation organized and existing under the laws of the state of Florida
(the "Pledgor"), in favor of SunTrust Bank, Atlanta, a Georgia banking
corporation (the "Bank").
W I T N E S S E T H:
WHEREAS, Bank extended to Pledgor a certain revolving credit
facility dated as of November 16, 1995 in the maximum aggregate amount at
any one time outstanding of $25,000,000 (the "Revolving Credit Facility");
and
WHEREAS, the Bank has agreed to make a term loan to the Pledgor
in the amount of the unpaid principal balance of the Revolving Credit
Facility (the "Loan"), which Loan will be evidenced by a promissory note of
even date herewith in the original principal amount of $25,000,000, or so
much thereof as may be outstanding under the Revolving Credit Facility (the
"Note");
WHEREAS, it is a condition precedent to the obligation to make
the Loan to the Pledgor that the Pledgor shall have executed and delivered
this Pledge Agreement to the Bank;
NOW, THEREFORE, in consideration of the premises and in order to
induce the Bank to make the Loan to the Pledgor, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Pledgor hereby agrees with the Bank as follows:
1. Pledge. The Pledgor hereby pledges, assigns, hypothecates,
transfers, and grants to the Bank a first lien on, and security interest
in, shares of the common stock of (the "Company") evidenced by stock certificate
no(s)., together with all dividends, stock dividends, stock splits, warrants,
options, stock purchase rights, and all other sums of money and property at
any time and from time to time distributed by the Company in respect of, or
in exchange or substitution for, any and all of such stock, and all
proceeds thereof, whether now existing or at any time hereafter acquired or
issued, and appropriate undated stock powers duly executed in blank (the
"Collateral")as collateral security for the prompt and complete payment and
performance when due (whether at the stated maturity or by acceleration)
of all indebtedness and obligations of the Pledgor to the Bank, whether now
existing or hereafter arising, however evidenced, whether direct or indirect,
liquidated or unliquidated, absolute or contingent, individual or joint with any
other person or entity including, without limitation, all indebtedness and
obligations arising out of or in connection with the Note, this Pledge Agreement
or any other collateral security document or agreement of the Pledgor in favor
of the Bank delivered in connection with the Pledge Agreement and the Note,
whether for principal, interest, fees, costs, expenses or otherwise (all of
the foregoing, together with any extensions, renewals, substitutions or
modifications of any of them, in whole or in part, and reasonable
attorney's fees if collected at law or by or through an attorney-at-law or
in bankruptcy, receivership or other proceedings, being hereinafter called
the "Obligations").
2. Stock Dividends, Distributions, Etc. If, while this Pledge
Agreement is in effect, the Pledgor shall become entitled to receive or
shall receive, with respect to or on account of any of the Collateral, (i)
any stock certificate (including, without limitation, any certificate
representing a stock dividend or a distribution in connection with any
reclassification, increase or reduction of capital, or issued in connection
with any reorganization), warrant, option or similar right, whether as an
addition to or in substitution or exchange for any of the Collateral, or
otherwise, (ii) any sums of money or property paid upon or in respect of
the Collateral upon the liquidation or dissolution of the Company, or (iii)
any distribution of capital or property on or in respect of any of the
Collateral pursuant to the recapitalization or reclassification of the
capital of the Company or pursuant to the reorganization thereof, the
Pledgor agrees to accept the same as the Bank's agent and to hold the same
in trust, segregated from the other assets of the Pledgor, on behalf of and
for the benefit of the Bank and to deliver the same forthwith to the Bank,
in the exact form received, with the endorsement of the Pledgor and
appropriate undated stock powers duly executed in blank when necessary, to
be held by the Bank, subject to the terms hereof, as additional Collateral.
3. Cash Dividends; Voting Rights. The Bank shall be entitled
to receive directly all cash dividends that the Pledgor shall be entitled
to receive in respect to the Collateral and may apply such cash dividends
as payment to Bank for any amounts then due, or to become due within 15
days, to the Bank under the Note, and Pledgor shall take all such action as
may be necessary or appropriate to give effect to such right; provided,
however, unless a default shall have occurred and be continuing under the
Note or this Pledge Agreement, any such cash dividend shall be paid to
Pledgor without any restriction as to use or application, except as
otherwise provided herein. The Pledgor shall be entitled to vote the
Collateral and to give consents, waivers and ratifications in respect to
the Collateral, provided, however, that no vote shall be cast or consent,
waiver or ratification given or action taken which would be inconsistent
with or violate any provision of this Pledge Agreement, the Note or any
other document, instrument, or agreement evidencing or securing any of the
Obligations. After the occurrence and during the continuance of any
default hereunder, the Bank shall have the right, upon notice to the
Pledgor, to exercise voting rights as specified in Section 4 below.
4. Rights of the Bank. The Bank shall not be liable for
failure to collect or realize upon the Obligations or any collateral
security or guarantee therefor, or any part thereof, or for any delay in so
doing nor shall it be under any obligation to take any action whatsoever
with regard thereto. Any or all of the Collateral held by the Bank
hereunder may, if any default shall have occurred and be continuing
hereunder, after notice to the Pledgor, be registered in the name of the
Bank or its nominee, and the Bank or its nominee may thereafter, without
notice, exercise all voting and corporate rights of a shareholder of the
Company and exercise any and all rights of conversion, exchange,
subscription or any other rights, privileges or options pertaining to any
of the Collateral as if it were the absolute owner thereof, including
without limitation, the right to exchange at its discretion any and all of
the Collateral upon the merger, consolidation, reorganization,
recapitalization or other readjustment of the Company or upon the exercise
by the Bank of any right, privilege or option pertaining to any of the
Collateral, and in connection therewith, to deposit and deliver any and all
of the Collateral with any committee, depositary, transfer agent, registrar
or designated agency upon such terms and conditions as it may determine,
all without liability except to account for property actually received by
it, but the Bank shall have no duty to exercise any of the aforesaid
rights, privileges or options and shall not be responsible for any failure
to do so or delay in so doing.
5. Representations, Warranties and Covenants of the Pledgor.
The Pledgor represents and warrants that, (a) it is the legal record and
beneficial owner of, and has good title to, the Collateral, subject to no
pledge, lien, mortgage, hypothecation, security interest, charge, voting
restriction, option or other encumbrance whatsoever; (b) the Certificate is
genuine and is in all respects what it purports to be; (c) it has full
power, authority and legal right to pledge all of the Collateral pursuant
to this Pledge Agreement; (d) this Pledge Agreement has been duly
authorized, executed and delivered by the Pledgor and constitutes a legal,
valid and binding obligation of the Pledgor, and is enforceable in
accordance with its terms except as may be limited by applicable
bankruptcy, insolvency, moratorium or other similar laws affecting
creditors' rights generally and except as enforceability may be limited by
applicable principles of equity; (e) no consent of any other person or
entity (including, without limitation, creditors of the Pledgor) and no
consent, license, permit, approval or authorization of, exemption by,
notice or report to, or registration, filing or declaration with, any
nation or government, any state or other political subdivision thereof or
any entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government (collectively, a
"Governmental Authority") is required to be obtained by the Pledgor in
connection with the execution, delivery or performance of this Pledge
Agreement or the pledge of the Collateral hereunder; (f) the execution,
delivery and performance of this Pledge Agreement will not violate any law,
treaty, rule or regulation, or any determination, order, judgment, writ,
award or decree of any court, arbitrator or Governmental Authority or any
provision of any security issued by the Pledgor or of any agreement,
instrument or undertaking to which the Pledgor is a party or which purports
to be binding upon the Pledgor or upon any of its assets, and will not
result in the creation or imposition of any lien, charge or encumbrance on
or security interest in any of the assets of the Pledgor except as
contemplated by this Pledge Agreement; (g) all shares of the Company's
stock pledged hereunder have been duly and validly issued, are fully paid
and non-assessable; (h) the pledge, assignment and delivery of the
Collateral pursuant to this Pledge Agreement creates a valid first lien on
and a perfected security interest in the Collateral, and the proceeds
thereof, subject to no prior pledge, lien, mortgage, hypothecation,
security interest, charge, voting restriction, option or encumbrance or to
any agreement purporting to grant to any third party a security interest in
the property or assets of the Pledgor which would include the Collateral.
6. No Disposition, Etc. Without the prior written consent of
the Bank, the Pledgor agrees that it will not sell, assign, transfer,
exchange, or otherwise dispose of, or grant any option with respect to, the
Collateral, nor will it create, incur or permit to exist any pledge, lien,
mortgage, hypothecation, security interest, charge, voting restriction,
option or any other encumbrance with respect to any of the Collateral, or
any interest therein, or any proceeds thereof, except for the security
interest provided for by this Pledge Agreement. Without the prior written
consent of the Bank, the Pledgor agrees that it will not vote any of the
shares in the Company for, consent to, permit, or take any action to
facilitate (i) the authorization or issuance of any additional shares of
capital stock of the Company or options, warrants, subscription rights or
other instruments or securities of any other kind that are convertible into
additional shares of stock of the Company, (ii) the issuance or sale of any
treasury stock of the Company, or (iii) any action taken with the intent to
decrease or impair the value of the Collateral.
7. Default. The Pledgor shall be in default under this Pledge
Agreement upon the occurrence of any one or more of the following events:
(i) the occurrence of any Event of Default (as defined in the Note); (ii)
upon default by the Pledgor in the payment, performance or observance of
any provision of this Pledge Agreement or any instrument, document,
agreement or of any other writing evidencing, securing or otherwise related
to or delivered in connection with any other of the Obligations; or (iii)
any representation or warranty made to the Bank by the Pledgor herein or in
any such instrument, document, agreement or other writing provided to the
Bank which proves to be false or misleading in any material respect.
8. Remedies. If a default shall have occurred and be
continuing hereunder, then the Bank, without demand of performance or other
demand, advertisement or notice of any kind (except the notice specified
below of time and place of public or private sale) to or upon the Pledgor
or any other person (all and each of which demands, advertisements and/or
notices are hereby expressly waived), may forthwith collect, receive,
appropriate and realize upon the Collateral, or any part thereof, and/or
may forthwith sell, assign, give option or options to purchase, contract to
sell or otherwise dispose of and deliver said Collateral, or any part
thereof, in one or more parcels at public or private sale or sales, at any
exchange or broker's board or at the Bank's offices or elsewhere upon such
terms and conditions as it may deem advisable and at such prices as it may
deem best, for cash or on credit or for future delivery, with the right to
the Bank upon any such sale or sales, public or private, to purchase the
whole or any part of said Collateral so sold, free of any right or equity
of redemption in the Pledgor after such sale, which right or equity is
hereby expressly waived or released to the extent permitted by law. The
Bank shall apply the net proceeds of any such collection, recovery,
receipt, appropriation, realization or sale, after deducting all reasonable
costs and expenses of every kind incurred therein or incidental to the
care, safekeeping or otherwise of any and all of the Collateral, including
attorneys' fees as specified herein, to the payment in whole or in part of
the Obligations in such order as the Bank may elect, the Pledgor remaining
liable for any deficiency remaining unpaid after such application, and only
after so paying over such net proceeds and after the payment by the Bank of
any other amount required by any provisions of law, including, without
limitation, Section 9-504(1)(C) of the Uniform Commercial Code as enacted
in the State of Georgia, need the Bank account for the surplus, if any, to
the Pledgor. The Pledgor agrees that, to the extent permitted by law, the
Bank need not give more than ten days' notice of the time and place of any
public sale or of the time after which a private sale or other intended
disposition is to take place and that such notice is reasonable
notification of such matters. No notification need be given to the Pledgor
if it has signed after default a statement renouncing or modifying any
right to notification of sale or
other intended disposition. In addition to the rights and remedies granted
to the Pledgor in this Pledge Agreement and in any other instrument or
agreement evidencing, securing or otherwise related to any of the
Obligations, the Bank and the Pledgor (except to the extent legally waived
herein) shall have all the rights and remedies of a secured party or
debtor, respectively, under the Uniform Commercial Code of the State of
Georgia. The Pledgor shall be liable for the deficiency if the proceeds of
any sale or other disposition of the Collateral are insufficient to pay all
amounts to which the Bank is entitled in respect of the Obligations secured
hereby.
9. Indemnity. The Pledgor agrees to indemnify and hold
harmless the Bank from and against any and all claims, demands, losses,
judgments and liabilities (including liabilities for penalties) of
whatsoever kind or nature, and to reimburse the Bank for all costs and
expenses, including reasonable attorneys' fees, growing out of or resulting
from this Pledge Agreement or the exercise by the Bank of any right or
remedy granted to it hereunder or under the Note except for any claims,
demands, losses, judgments and liabilities that are due to the willful
misconduct or gross negligence of Bank. In no event shall the Bank be
liable for any matter or thing in connection with this Agreement other than
to account for moneys and stock actually received by it in accordance with
the terms hereof.
10. Further Assurance. The Pledgor agrees that it will join
with the Bank in executing and, at its own expense, file and refile under
the Uniform Commercial Code such financing statements, continuation
statements and other documents in such offices as the Bank may deem
necessary or appropriate and wherever required or permitted by law in order
to perfect and preserve the Bank's security interest in the Collateral and
hereby authorizes the Bank to file financing statements and amendments
thereto relative to all or any part of the Collateral without the signature
of the Pledgor where permitted by law, and agrees to do such further acts
and things and to execute and deliver to the Bank such additional
conveyances, assignments, agreements and instruments as the Bank may
require or deem advisable to carry into effect the purposes of this Pledge
Agreement or to further assure and confirm unto the Bank its rights, powers
and remedies hereunder.
11. Severability. Any provision of this Pledge Agreement which
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction.
12. Termination; Release. Upon payment in full of all
Obligations, this Pledge Agreement shall terminate, and the Bank will duly
assign, transfer and deliver to the Pledgor (without recourse and without
any representation or warranty) such of the Collateral as may be in the
possession of the Bank and as has not theretofore been sold or otherwise
applied or released pursuant to this Pledge Agreement, together with any
moneys at the time held by the Bank hereunder relating to the Collateral.
13. Notices, Etc. All notices and other communications
hereunder shall be in writing and shall be delivered or mailed by certified
mail-return receipt requested, postage prepaid addressed
(a) if to the Pledgor, at:
Capital City Bank Group, Inc.
217 North Monroe
Tallahassee, Florida 32301
Attention: Mr. J. Kimbrough Davis
(b) if to the Bank, at:
SunTrust Bank, Atlanta
P. O. Box 4418
Mail Code 121
Atlanta, Georgia 30302
Attention: Mr. Edward T. Summers
Southeastern Financial Institutions
or at such other address as shall have been furnished in writing by the
Pledgor, the Bank or any holder of the Note to the party required to give
notice hereunder. Any such notice or communication shall be deemed received
on the fourth (4th) business day after being deposited in the mail or upon
actual receipt, whichever shall occur first.
14. Miscellaneous. This Pledge Agreement shall be binding upon
the successors and assigns of the Pledgor and shall inure to the benefit of
and be enforceable by the Bank and its successors and assigns. This Pledge
Agreement may be changed, waived, discharged or terminated only by an
instrument in writing signed by the party against which enforcement of such
change, waiver, discharge or termination is sought. The headings in this
Pledge Agreement are for purposes of reference only and shall not limit or
define the meaning hereof. In the event that any provision of this Pledge
Agreement shall prove to be invalid or unenforceable, such provision shall
be deemed to be severable from the other provisions of this Agreement which
shall remain binding on all parties hereto.
15. No Waiver; Cumulative Remedies. The Bank shall not by any
act, delay, omission or otherwise be deemed to have waived any of its
rights or remedies hereunder and no waiver shall be valid unless in
writing, signed by the Bank, and then only to the extent therein set forth.
A waiver of any right or remedy hereunder on any one occasion shall not be
construed as a bar to any right or remedy which the Bank would otherwise
have on any future occasion. No failure to exercise nor any delay in
exercising on the part of the Bank, any right, power or privilege
hereunder, shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, power or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other right, power
or privilege. The rights and remedies herein provided are cumulative and
may be exercised singly or concurrently and are not exclusive of any rights
or remedies provided by law.
16. Applicable Law. This Pledge Agreement and the rights and
obligations of the parties hereunder shall be construed in accordance with
and be governed by the law (without giving effect to the conflict of law
principles thereof) of the State of Georgia.
IN WITNESS WHEREOF, the Pledgor has caused this Pledge Agreement
to be duly executed and delivered under seal by its duly authorized
officers on the day and year first above written.