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EXHIBIT 10.2
[BAR CODE]
*31311385163500000110010C40*
BUSINESS LOAN AGREEMENT
PRINCIPAL LOAN DATE MATURITY LOAN NO CALL/COLL ACCOUNT OFFICER INITIALS
$5,000,000.00 01-26-2005 02-01-2006 11001 402/511 N3113851635 CDROD
References in the shaded area are for Lender's use only and do not limit the
applicability of this document to any particular loan or item.
Any item above containing "***" has been omitted due to text length limitations.
BORROWER: EVERGREENBANCORP, INC. LENDER: KEYBANK NATIONAL ASSOCIATION
301 EASTLAKE AVENUE EAST WA-CB-TACOMA CORRESPONDENT BANKING
SEATTLE, WA 98109 1101 PACIFIC AVE.
1ST FLOOR
TACOMA, WA 98402
THIS BUSINESS LOAN AGREEMENT DATED JANUARY 26, 2005, IS MADE AND EXECUTED
BETWEEN EVERGREENBANCORP, INC. ("BORROWER") AND KEYBANK NATIONAL ASSOCIATION
("LENDER") ON THE FOLLOWING TERMS AND CONDITIONS. BORROWER HAS RECEIVED PRIOR
COMMERCIAL LOANS FROM LENDER OR HAS APPLIED TO LENDER FOR A COMMERCIAL LOAN OR
LOANS OR OTHER FINANCIAL ACCOMMODATIONS, INCLUDING THOSE WHICH MAY BE DESCRIBED
ON ANY EXHIBIT OR SCHEDULE ATTACHED TO THIS AGREEMENT ("LOAN"). BORROWER
UNDERSTANDS AND AGREES THAT: (A) IN GRANTING, RENEWING, OR EXTENDING ANY LOAN,
LENDER IS RELYING UPON BORROWER'S REPRESENTATIONS, WARRANTIES, AND AGREEMENTS AS
SET FORTH IN THIS AGREEMENT; (B) THE GRANTING, RENEWING, OR EXTENDING OF ANY
LOAN BY LENDER AT ALL TIMES SHALL BE SUBJECT TO LENDER'S SOLE JUDGMENT AND
DISCRETION; AND (C) ALL SUCH LOANS SHALL BE AND REMAIN SUBJECT TO THE TERMS AND
CONDITIONS OF THIS AGREEMENT.
TERM. This Agreement shall be effective as of January 26, 2005, and shall
continue in full force and effect until such time as all of Borrower's Loans in
favor of Lender have been paid in full, including principal, interest, costs,
expenses, attorneys' fees, and other fees and charges, or until such time as the
parties may agree in writing to terminate this Agreement.
CONDITIONS PRECEDENT TO EACH ADVANCE. Lender's obligation to make the initial
Advance and each subsequent Advance under this Agreement shall be subject to the
fulfillment to Lender's satisfaction of all of the conditions set forth in this
Agreement and in the Related Documents.
LOAN DOCUMENTS. Borrower shall provide to Lender the following documents
for the Loan: (1) the Note; (2) Security Agreements granting to Lender
security interests in the Collateral; (3) financing statements and all
other documents perfecting Lender's Security Interests; (4) evidence of
insurance as required below; (5) together with all such Related Documents
as Lender may require for the Loan; all in form and substance satisfactory
to Lender and Lender's counsel.
BORROWER'S AUTHORIZATION. Borrower shall have provided in form and
substance satisfactory to Lender properly certified resolutions, duly
authorizing the execution and delivery of this Agreement, the Note and the
Related Documents. In addition, Borrower shall have provided such other
resolutions, authorizations, documents and instruments as Lender or its
counsel, may require.
PAYMENT OF FEES AND EXPENSES. Borrower shall have paid to Lender all fees,
charges, and other expenses which are then due and payable as specified in
this Agreement or any Related Document.
REPRESENTATIONS AND WARRANTIES. The representations and warranties set
forth in this Agreement, in the Related Documents, and in any document or
certificate delivered to Lender under this Agreement are true and correct.
NO EVENT OF DEFAULT. There shall not exist at the time of any Advance a
condition which would constitute an Event of Default under this Agreement
or under any Related Document.
REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants to Lender, as
of the date of this Agreement, as of the date of each disbursement of loan
proceeds, as of the date of any renewal, extension or modification of any Loan,
and at all times any Indebtedness exists:
ORGANIZATION. Borrower is a corporation for profit which is, and at all
times shall be, duly organized, validly existing, and in good standing
under and by virtue of the laws of the State of Washington Borrower has
the full power and authority to own its properties and to transact the
business in which it is presently engaged or presently proposes to engage.
Borrower maintains an office at 301 Eastlake Avenue East, Seattle, WA
98109. Unless Borrower has designated otherwise in writing, the principal
office is the office at which Borrower keeps its books and records
including its records concerning the Collateral. Borrower will notify
Lender prior to any change in the location of Borrower's state of
organization or any change in Borrower's name. Borrower shall do all
things necessary to preserve and to keep in full force and effect its
existence, rights and privileges, and shall comply with all regulations,
rules, ordinances, statutes, orders and decrees of any governmental or
quasi-governmental authority or court applicable to Borrower and
Borrower's business activities.
ASSUMED BUSINESS NAMES. Borrower has filed or recorded all documents or
filings required by law relating to all assumed business names used by
Borrower. Excluding the name of Borrower, the following is a complete list
of all assumed business names under which Borrower does business: NONE.
AUTHORIZATION. Borrower's execution, delivery, and performance of this
Agreement and all the Related Documents have been duly authorized by all
necessary action by Borrower and do not conflict with, result in a
violation of, or constitute a default under (1) any provision of (a)
Borrower's articles of incorporation or organization, or bylaws, or (b)
any agreement or other instrument binding upon Borrower or (2) any law,
governmental regulation, court decree, or order applicable to Borrower or
to Borrower's properties.
FINANCIAL INFORMATION. Each of Borrower's financial statements supplied to
Lender truly and completely disclosed Borrower's financial condition as of
the date of the statement, and there has been no material adverse change
in Borrower's financial condition subsequent to the date of the most
recent financial statement supplied to Lender. Borrower has no material
contingent obligations except as disclosed in such financial statements.
LEGAL EFFECT. This Agreement constitutes, and any instrument or agreement
Borrower is required to give under this Agreement when delivered will
constitute legal, valid, and binding obligations of Borrower enforceable
against Borrower in accordance with their respective terms.
PROPERTIES. Except as contemplated by this Agreement or as previously
disclosed in Borrower's financial statements or in writing to Lender and
as accepted by Lender, and except for property tax liens for taxes not
presently due and payable, Borrower owns and has good title to all of
Borrower's properties free and clear of all Security Interests, and has
not executed any security documents or financing statements relating to
such properties. All of Borrower's properties are titled in Borrower's
legal name, and Borrower has not used or filed a financing
PAGE 2
BUSINESS LOAN AGREEMENT
LOAN NO: 11001 (CONTINUED)
statement under any other name for at least the last five (5) years.
HAZARDOUS SUBSTANCES. Except as disclosed to and acknowledged by Lender in
writing, Borrower represents and warrants that: (1) During the period of
Borrower's ownership of Borrower's Collateral, there has been no use,
generation, manufacture, storage, treatment, disposal, release or
threatened release of any Hazardous Substance by any person on, under,
about or from any of the Collateral. (2) Borrower has no knowledge of, or
reason to believe that there has been (a) any breach or violation of any
Environmental Laws; (b) any use, generation, manufacture, storage,
treatment, disposal, release or threatened release of any Hazardous
Substance on, under, about or from the Collateral by any prior owners or
occupants of any of the Collateral; or (c) any actual or threatened
litigation or claims of any kind by any person relating to such matters.
(3) Neither Borrower nor any tenant, contractor, agent or other authorized
user of any of the Collateral shall use, generate, manufacture, store,
treat, dispose of or release any Hazardous Substance on, under, about or
from any of the Collateral; and any such activity shall be conducted in
compliance with all applicable federal, state, and local laws,
regulations, and ordinances, including without limitation all
Environmental Laws. Borrower authorizes Lender and its agents to enter
upon the Collateral to make such inspections and tests as Lender may deem
appropriate to determine compliance of the Collateral with this section of
the Agreement. Any inspections or tests made by Lender shall be at
Borrower's expense and for Lender's purposes only and shall not be
construed to create any responsibility or liability on the part of Lender
to Borrower or to any other person. The representations and warranties
contained herein are based on Borrower's due diligence in investigating
the Collateral for hazardous waste and Hazardous Substances. Borrower
hereby (1) releases and waives any future claims against Lender for
indemnity or contribution in the event Borrower becomes liable for cleanup
or other costs under any such laws, and (2) agrees to indemnify and hold
harmless Lender against any and all claims, losses, liabilities, damages,
penalties, and expenses which Lender may directly or indirectly sustain or
suffer resulting from a breach of this section of the Agreement or as a
consequence of any use, generation, manufacture, storage, disposal,
release or threatened release of a hazardous waste or substance on the
Collateral. The provisions of this section of the Agreement, including the
obligation to indemnify, shall survive the payment of the Indebtedness and
the termination, expiration or satisfaction of this Agreement and shall
not be affected by Lender's acquisition of any interest in any of the
Collateral, whether by foreclosure or otherwise.
LITIGATION AND CLAIMS. No litigation, claim, investigation, administrative
proceeding or similar action (including those for unpaid taxes) against
Borrower is pending or threatened, and no other event has occurred which
may materially adversely affect Borrower's financial condition or
properties, other than litigation, claims, or other events, if any, that
have been disclosed to and acknowledged by Lender in writing.
TAXES. To the best of Borrower's knowledge, all of Borrower's tax returns
and reports that are or were required to be filed, have been filed, and
all taxes, assessments and other governmental charges have been paid in
full, except those presently being or to be contested by Borrower in good
faith in the ordinary course of business and for which adequate reserves
have been provided.
LIEN PRIORITY. Unless otherwise previously disclosed to Lender in writing,
Borrower has not entered into or granted any Security Agreements, or
permitted the filing or attachment of any Security Interests on or
affecting any of the Collateral directly or indirectly securing repayment
of Borrower's Loan and Note, that would be prior or that may in any way be
superior to Lender's Security Interests and rights in and to such
Collateral.
BINDING EFFECT. This Agreement, the Note, all Security Agreements (if
any), and all Related Documents are binding upon the signers thereof, as
well as upon their successors, representatives and assigns, and are
legally enforceable in accordance with their respective terms.
AFFIRMATIVE COVENANTS. Borrower covenants and agrees with Lender that, so long
as this Agreement remains in effect, Borrower will:
NOTICES OF CLAIMS AND LITIGATION. Promptly inform Lender in writing of (1)
all material adverse changes in Borrower's financial condition, and (2)
all existing and all threatened litigation, claims, investigations,
administrative proceedings or similar actions affecting Borrower or any
Guarantor which could materially affect the financial condition of
Borrower or the financial condition of any Guarantor.
FINANCIAL RECORDS. Maintain its books and records in accordance with GAAP,
applied on a consistent basis, and permit Lender to examine and audit
Borrower's books and records at all reasonable times.
FINANCIAL STATEMENTS. Furnish Lender with the following:
ANNUAL STATEMENTS. As soon as available, but in no event later than
one-hundred-twenty (120) days after the end of each fiscal year,
Borrower's balance sheet and income statement for the year ended,
audited by a certified public accountant satisfactory to Lender.
INTERIM STATEMENTS. As soon as available, but in no event later than
one-hundred-twenty (120) days after the end of each fiscal quarter,
Borrower's balance sheet and profit and loss statement for the
period ended, prepared by Borrower.
TAX RETURNS. As soon as available, but in no event later than
one-hundred-twenty (120) days after the applicable filing date for
the tax reporting period ended, Federal and other governmental tax
returns, prepared by Borrower.
All financial reports required to be provided under this Agreement shall
be prepared in accordance with GAAP, applied on a consistent basis, and
certified by Borrower as being true and correct.
ADDITIONAL INFORMATION. Furnish such additional information and
statements, as Lender may request from time to time.
INSURANCE. Maintain fire and other risk insurance, public liability
insurance, and such other insurance as Lender may require with respect to
Borrower's properties and operations, in form, amounts, coverages and with
insurance companies acceptable to Lender. Borrower, upon request of
Lender, will deliver to Lender from time to time the policies or
certificates of insurance in form satisfactory to Lender, including
stipulations that coverages will not be cancelled or diminished without at
least ten (10) days prior written notice to Lender. Each insurance policy
also shall include an endorsement providing that coverage in favor of
Lender will not be impaired in any way by any act, omission or default of
Borrower or any other person. In connection with all policies covering
assets in which Lender holds or is offered a security interest for the
Loans, Borrower will provide Lender with such lender's loss payable or
other endorsements as Lender may require.
INSURANCE REPORTS. Furnish to Lender, upon request of Lender, reports on
each existing insurance policy showing such information as Lender may
reasonably request, including without limitation the following: (1) the
name of the insurer; (2) the risks insured; (3) the amount of the policy;
(4) the properties insured; (5) the then current property values on the
basis of which insurance has been obtained, and the manner of determining
those values; and (6) the expiration date of the policy. In addition, upon
request of Lender (however not more often than annually), Borrower will
have an independent appraiser satisfactory to Lender determine, as
applicable, the actual cash value or replacement cost of any Collateral.
The cost of such appraisal shall be paid by Borrower.
OTHER AGREEMENTS. Comply with all terms and conditions of all other
agreements, whether now or hereafter existing, between Borrower and any
other party and notify Lender immediately in writing of any default in
connection with any other such agreements.
LOAN PROCEEDS. Use all Loan proceeds solely for Borrower's business
operations, unless specifically consented to the contrary by Lender in
writing.
PAGE 3
BUSINESS LOAN AGREEMENT
LOAN NO: 11001 (CONTINUED)
TAXES, CHARGES AND LIENS. Pay and discharge when due all of its
indebtedness and obligations, including without limitation all
assessments, taxes, governmental charges, levies and liens, of every kind
and nature, imposed upon Borrower or its properties, income, or profits,
prior to the date on which penalties would attach, and all lawful claims
that, if unpaid, might become a lien or charge upon any of Borrower's
properties, income, or profits.
PERFORMANCE. Perform and comply, in a timely manner, with all terms,
conditions, and provisions set forth in this Agreement, in the Related
Documents, and in all other instruments and agreements between Borrower
and Lender. Borrower shall notify Lender immediately in writing of any
default in connection with any agreement.
OPERATIONS. Maintain executive and management personnel with substantially
the same qualifications and experience as the present executive and
management personnel; provide written notice to Lender of any change in
executive and management personnel; conduct its business affairs in a
reasonable and prudent manner.
ENVIRONMENTAL STUDIES. Promptly conduct and complete, at Borrower's
expense, all such investigations, studies, samplings and testings as may
be requested by Lender or any governmental authority relative to any
substance, or any waste or by-product of any substance defined as toxic or
a hazardous substance under applicable federal, state, or local law, rule,
regulation, order or directive, at or affecting any property or any
facility owned, leased or used by Borrower.
COMPLIANCE WITH GOVERNMENTAL REQUIREMENTS. Comply with all laws,
ordinances, and regulations, now or hereafter in effect, of all
governmental authorities applicable to the conduct of Borrower's
properties, businesses and operations, and to the use or occupancy of the
Collateral, including without limitation, the Americans With Disabilities
Act. Borrower may contest in good faith any such law, ordinance, or
regulation and withhold compliance during any proceeding, including
appropriate appeals, so long as Borrower has notified Lender in writing
prior to doing so and so long as, in Lender's sole opinion, Lender's
interests in the Collateral are not jeopardized. Lender may require
Borrower to post adequate security or a surety bond, reasonably
satisfactory to Lender, to protect Lender's interest.
INSPECTION. Permit employees or agents of Lender at any reasonable time to
inspect any and all Collateral for the Loan or Loans and Borrower's other
properties and to examine or audit Borrower's books, accounts, and records
and to make copies and memoranda of Borrower's books, accounts, and
records. If Borrower now or at any time hereafter maintains any records
(including without limitation computer generated records and computer
software programs for the generation of such records) in the possession of
a third party, Borrower, upon request of Lender, shall notify such party
to permit Lender free access to such records at all reasonable times and
to provide Lender with copies of any records it may request, all at
Borrower's expense.
ENVIRONMENTAL COMPLIANCE AND REPORTS. Borrower shall comply in all
respects with any and all Environmental Laws; not cause or permit to
exist, as a result of an intentional or unintentional action or omission
on Borrower's part or on the part of any third party, on property owned
and/or occupied by Borrower, any environmental activity where damage may
result to the environment, unless such environmental activity is pursuant
to and in compliance with the conditions of a permit issued by the
appropriate federal, state or local governmental authorities; shall
furnish to Lender promptly and in any event within thirty (30) days after
receipt thereof a copy of any notice, summons, lien, citation, directive,
letter or other communication from any governmental agency or
instrumentality concerning any intentional or unintentional action or
omission on Borrower's part in connection with any environmental activity
whether or not there is damage to the environment and/or other natural
resources.
ADDITIONAL ASSURANCES. Make, execute and deliver to Lender such promissory
notes, mortgages, deeds of trust, security agreements, assignments,
financing statements, instruments, documents and other agreements as
Lender or its attorneys may reasonably request to evidence and secure the
Loans and to perfect all Security Interests.
RECOVERY OF ADDITIONAL COSTS. If the imposition of or any change in any law,
rule, regulation or guideline, or the interpretation or application of any
thereof by any court or administrative or governmental authority (including any
request or policy not having the force of law) shall impose, modify or make
applicable any taxes (except federal, state or local income or franchise taxes
imposed on Lender), reserve requirements, capital adequacy requirements or other
obligations which would (A) increase the cost to Lender for extending or
maintaining the credit facilities to which this Agreement relates, (B) reduce
the amounts payable to Lender under this Agreement or the Related Documents, or
(C) reduce the rate of return on Lender's capital as a consequence of Lender's
obligations with respect to the credit facilities to which this Agreement
relates, then Borrower agrees to pay Lender such additional amounts as will
compensate Lender therefor, within five (5) days after Lender's written demand
for such payment, which demand shall be accompanied by an explanation of such
imposition or charge and a calculation in reasonable detail of the additional
amounts payable by Borrower, which explanation and calculations shall be
conclusive in the absence of manifest error.
LENDER'S EXPENDITURES. If any action or proceeding is commenced that would
materially affect Lender's interest in the Collateral or if Borrower fails to
comply with any provision of this Agreement or any Related Documents, including
but not limited to Borrower's failure to discharge or pay when due any amounts
Borrower is required to discharge or pay under this Agreement or any Related
Documents, Lender on Borrower's behalf may (but shall not be obligated to) take
any action that Lender deems appropriate, including but not limited to
discharging or paying all taxes, liens, security interests, encumbrances and
other claims, at any time levied or placed on any Collateral and paying all
costs for insuring, maintaining and preserving any Collateral. All such
expenditures incurred or paid by Lender for such purposes will then bear
interest at the rate charged under the Note from the date incurred or paid by
Lender to the date of repayment by Borrower. All such expenses will become a
part of the Indebtedness and, at Lender's option, will (A) be payable on demand;
(B) be added to the balance of the Note and be apportioned among and be payable
with any installment payments to become due during either (1) the term of any
applicable insurance policy; or (2) the remaining term of the Note; or (C) be
treated as a balloon payment which will be due and payable at the Note's
maturity.
NEGATIVE COVENANTS. Borrower covenants and agrees with Lender that while this
Agreement is in effect, Borrower shall not, without the prior written consent of
Lender:
INDEBTEDNESS AND LIENS. (1) Except for trade debt incurred in the normal
course of business and indebtedness to Lender contemplated by this
Agreement, create, incur or assume indebtedness for borrowed money,
including capital leases, (2) sell, transfer, mortgage, assign, pledge,
lease, grant a security interest in, or encumber any of Borrower's assets
(except as allowed as Permitted Liens), or (3) sell with recourse any of
Borrower's accounts, except to Lender.
CONTINUITY OF OPERATIONS. (1) Engage in any business activities
substantially different than those in which Borrower is presently engaged,
(2) cease operations, liquidate, merge, transfer, acquire or consolidate
with any other entity, change its name, dissolve or transfer or sell
Collateral out of the ordinary course of business, or (3) pay any
dividends on Borrower's stock (other than dividends payable in its stock),
provided, however that notwithstanding the foregoing, but only so long as
no Event of Default has occurred and is continuing or would result from
the payment of dividends, if Borrower is a "Subchapter S Corporation" (as
defined in the Internal Revenue Code of 1986, as amended), Borrower may
pay cash dividends on its stock to its shareholders from time to time in
amounts necessary to enable the shareholders to pay income taxes and make
estimated income tax payments to satisfy their liabilities under federal
and state law which arise solely from their status as Shareholders of a
Subchapter S Corporation because of their ownership of shares of
Borrower's stock, or purchase or retire any of Borrower's outstanding
shares or alter or amend Borrower's capital structure.
PAGE 4
BUSINESS LOAN AGREEMENT
LOAN NO: 11001 (CONTINUED)
LOANS, ACQUISITIONS AND GUARANTIES. (1) Loan, invest in or advance money
or assets to any other person, enterprise or entity, (2) purchase, create
or acquire any interest in any other enterprise or entity, or (3) incur
any obligation as surety or guarantor other than in the ordinary course of
business.
CESSATION OF ADVANCES. If Lender has made any commitment to make any Loan to
Borrower, whether under this Agreement or under any other agreement, Lender
shall have no obligation to make Loan Advances or to disburse Loan proceeds if:
(A) Borrower or any Guarantor is in default under the terms of this Agreement or
any of the Related Documents or any other agreement that Borrower or any
Guarantor has with Lender; (B) Borrower or any Guarantor dies, becomes
incompetent or becomes insolvent, files a petition in bankruptcy or similar
proceedings, or is adjudged a bankrupt; (C) there occurs a material adverse
change in Borrower's financial condition, in the financial condition of any
Guarantor, or in the value of any Collateral securing any Loan; or (D) any
Guarantor seeks, claims or otherwise attempts to limit, modify or revoke such
Guarantor's guaranty of the Loan or any other loan with Lender; or (E) Lender in
good faith deems itself insecure, even though no Event of Default shall have
occurred.
RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a
right of setoff in all Borrower's accounts with Lender (whether checking,
savings, or some other account). This includes all accounts Borrower holds
jointly with someone else and all accounts Borrower may open in the future.
However, this does not include any IRA or Keogh accounts, or any trust accounts
for which setoff would be prohibited by law. Borrower authorizes Lender, to the
extent permitted by applicable law, to charge or setoff all sums owing on the
Indebtedness against any and all such accounts.
DEFAULT. Each of the following shall constitute an Event of Default under this
Agreement:
PAYMENT DEFAULT. Borrower fails to make any payment when due under the
Loan.
OTHER DEFAULTS. Borrower fails to comply with or to perform any other
term, obligation, covenant or condition contained in this Agreement or in
any of the Related Documents or to comply with or to perform any term,
obligation, covenant or condition contained in any other agreement between
Lender and Borrower.
DEFAULT IN FAVOR OF THIRD PARTIES. Borrower or any Grantor defaults under
any loan, extension of credit, security agreement, purchase or sales
agreement, or any other agreement, in favor of any other creditor or
person that may materially affect any of Borrower's or any Grantor's
property or Borrower's or any Grantor's ability to repay the Loans or
perform their respective obligations under this Agreement or any of the
Related Documents.
FALSE STATEMENTS. Any warranty, representation or statement made or
furnished to Lender by Borrower or on Borrower's behalf under this
Agreement or the Related Documents is false or misleading in any material
respect, either now or at the time made or furnished or becomes false or
misleading at any time thereafter.
INSOLVENCY. The dissolution or termination of Borrower's existence as a
going business, the insolvency of Borrower, the appointment of a receiver
for any part of Borrower's property, any assignment for the benefit of
creditors, any type of creditor workout, or the commencement of any
proceeding under any bankruptcy or insolvency laws by or against Borrower.
DEFECTIVE COLLATERALIZATION. This Agreement or any of the Related
Documents ceases to be in full force and effect (including failure of any
collateral document to create a valid and perfected security interest or
lien) at any time and for any reason.
CREDITOR OR FORFEITURE PROCEEDINGS. Commencement of foreclosure or
forfeiture proceedings, whether by judicial proceeding, self-help,
repossession or any other method, by any creditor of Borrower or by any
governmental agency against any collateral securing the Loan. This
includes a garnishment of any of Borrower's accounts, including deposit
accounts, with Lender. However, this Event of Default shall not apply if
there is a good faith dispute by Borrower as to the validity or
reasonableness of the claim which is the basis of the creditor or
forfeiture proceeding and if Borrower gives Lender written notice of the
creditor or forfeiture proceeding and deposits with Lender monies or a
surety bond for the creditor or forfeiture proceeding, in an amount
determined by Lender, in its sole discretion, as being an adequate reserve
or bond for the dispute.
EVENTS AFFECTING GUARANTOR. Any of the preceding events occurs with
respect to any Guarantor of any of the Indebtedness or any Guarantor dies
or becomes incompetent, or revokes or disputes the validity of, or
liability under, any Guaranty of the Indebtedness. In the event of a
death. Lender, at its option, may, but shall not be required to, permit
the Guarantor's estate to assume unconditionally the obligations arising
under the guaranty in a manner satisfactory to Lender, and, in doing so,
cure any Event of Default.
CHANGE IN OWNERSHIP. Any change in ownership of twenty-five percent (25%)
or more of the common stock of Borrower.
ADVERSE CHANGE. A material adverse change occurs in Borrower's financial
condition, or Lender believes the prospect of payment or performance of
the Loan is impaired.
INSECURITY. Lender in good faith believes itself insecure.
RIGHT TO CURE. If any default, other than a default on Indebtedness, is
curable and if Borrower or Grantor, as the case may be, has not been given
a notice of a similar default within the preceding twelve (12) months, it
may be cured if Borrower or Grantor, as the case may be, after receiving
written notice from Lender demanding cure of such default: (1) cure the
default within fifteen (15) days; or (2) if the cure requires more than
fifteen (15) days, immediately initiate steps which Lender deems in
Lender's sole discretion to be sufficient to cure the default and
thereafter continue and complete all reasonable and necessary steps
sufficient to produce compliance as soon as reasonably practical.
EFFECT OF AN EVENT OF DEFAULT. If any Event of Default shall occur, except where
otherwise provided in this Agreement or the Related Documents, all commitments
and obligations of Lender under this Agreement or the Related Documents or any
other agreement immediately will terminate (including any obligation to make
further Loan Advances or disbursements), and, at Lender's option, all
Indebtedness immediately will become due and payable, all without notice of any
kind to Borrower, except that in the case of an Event of Default of the type
described in the "Insolvency" subsection above, such acceleration shall be
automatic and not optional. In addition, Lender shall have all the rights and
remedies provided in the Related Documents or available at law, in equity, or
otherwise. Except as may be prohibited by applicable law, all of Lender's rights
and remedies shall be cumulative and may be exercised singularly or
concurrently. Election by Lender to pursue any remedy shall not exclude pursuit
of any other remedy, and an election to make expenditures or to take action to
perform an obligation of Borrower or of any Grantor shall not affect Lender's
right to declare a default and to exercise its rights and remedies.
MISCELLANEOUS PROVISIONS. The fallowing miscellaneous provisions are a part of
this Agreement:
AMENDMENTS. This Agreement, together with any Related Documents,
constitutes the entire understanding and agreement of the parties as to
the matters set forth in this Agreement. No alteration of or amendment to
this Agreement shall be effective unless given in writing and signed by
the party or parties sought to be charged or bound by the alteration or
amendment.
ATTORNEYS' FEES; EXPENSES. Borrower agrees to pay upon demand all of
Lender's costs and expenses, including Lender's attorneys' fees and
Lender's legal expenses, incurred in connection with the enforcement of
this Agreement. Lender may hire or pay someone else to help
PAGE 5
BUSINESS LOAN AGREEMENT
LOAN NO: 11001 (CONTINUED)
enforce this Agreement, and Borrower shall pay the costs and expenses of
such enforcement. Costs and expenses include Lender's attorneys' fees and
legal expenses whether or not there is a lawsuit, including attorneys'
fees and legal expenses for bankruptcy proceedings (including efforts to
modify or vacate any automatic stay or injunction), appeals, and any
anticipated post-judgment collection services. Borrower also shall pay all
court costs and such additional fees as may be directed by the court.
CAPTION HEADINGS. Caption headings in this Agreement are for convenience
purposes only and are not to be used to interpret or define the provisions
of this Agreement.
CONSENT TO LOAN PARTICIPATION. Borrower agrees and consents to Lender's
sale or transfer, whether now or later, of one or more participation
interests in the Loan to one or more purchasers, whether related or
unrelated to Lender. Lender may provide, without any limitation
whatsoever, to any one or more purchasers, or potential purchasers, any
information or knowledge Lender may have about Borrower or about any other
matter relating to the Loan, and Borrower hereby waives any rights to
privacy Borrower may have with respect to such matters. Borrower
additionally waives any and all notices of sale of participation
interests, as well as all notices of any repurchase of such participation
interests. Borrower also agrees that the purchasers of any such
participation interests will be considered as the absolute owners of such
interests in the Loan and will have all the rights granted under the
participation agreement or agreements governing the sale of such
participation interests. Borrower further waives all rights of offset or
counterclaim that it may have now or later against Lender or against any
purchaser of such a participation interest and unconditionally agrees that
either Lender or such purchaser may enforce Borrower's obligation under
the Loan irrespective of the failure or insolvency of any holder of any
interest in the Loan. Borrower further agrees that the purchaser of any
such participation interests may enforce its interests irrespective of any
personal claims or defenses that Borrower may have against Lender.
GOVERNING LAW. THIS AGREEMENT WILL BE GOVERNED BY, CONSTRUED AND ENFORCED
IN ACCORDANCE WITH FEDERAL LAW AND THE LAWS OF THE STATE OF WASHINGTON.
THIS AGREEMENT HAS BEEN ACCEPTED BY LENDER IN THE STATE OF WASHINGTON.
NO WAIVER BY LENDER. Lender shall not be deemed to have waived any rights
under this Agreement unless such waiver is given in writing and signed by
Lender. No delay or omission on the part of Lender in exercising any right
shall operate as a waiver of such right or any other right. A waiver by
Lender of a provision of this Agreement shall not prejudice or constitute
a waiver of Lender's right otherwise to demand strict compliance with that
provision or any other provision of this Agreement. No prior waiver by
Lender, nor any course of dealing between Lender and Borrower, or between
Lender and any Grantor, shall constitute a waiver of any of Lender's
rights or of any of Borrower's or any Grantor's obligations as to any
future transactions. Whenever the consent of Lender is required under this
Agreement, the granting of such consent by Lender in any instance shall
not constitute continuing consent to subsequent instances where such
consent is required and in all cases such consent may be granted or
withheld in the sole discretion of Lender.
NOTICES. Subject to applicable law, and except for notice required or
allowed by law to be given in another manner, any notice required to be
given under this Agreement shall be given in writing, and shall be
effective when actually delivered, when actually received by telefacsimile
(unless otherwise required by law), when deposited with a nationally
recognized overnight courier, or, if mailed, when deposited in the United
States mail, as first class, certified or registered mail postage prepaid,
directed to the addresses shown near the beginning of this Agreement. Any
party may change its address for notices under this Agreement by giving
formal written notice to the other parties, specifying that the purpose of
the notice is to change the party's address. For notice purposes, Borrower
agrees to keep Lender informed at all times of Borrower's current address.
Subject to applicable law, and except for notice required or allowed by
law to be given in another manner, if there is more than one Borrower, any
notice given by Lender to any Borrower is deemed to be notice given to all
Borrowers.
SEVERABILITY. If a court of competent jurisdiction finds any provision of
this Agreement to be illegal, invalid, or unenforceable as to any
circumstance, that finding shall not make the offending provision illegal,
invalid, or unenforceable as to any other circumstance. If feasible, the
offending provision shall be considered modified so that it becomes legal,
valid and enforceable. If the offending provision cannot be so modified,
it shall be considered deleted from this Agreement. Unless otherwise
required by law, the illegality, invalidity, or unenforceability of any
provision of this Agreement shall not affect the legality, validity or
enforceability of any other provision of this Agreement.
SUBSIDIARIES AND AFFILIATES OF BORROWER. To the extent the context of any
provisions of this Agreement makes it appropriate, including without
limitation any representation, warranty or covenant, the word "Borrower"
as used in this Agreement shall include all of Borrower's subsidiaries and
affiliates. Notwithstanding the foregoing however, under no circumstances
shall this Agreement be construed to require Lender to make any Loan or
other financial accommodation to any of Borrower's subsidiaries or
affiliates.
SUCCESSORS AND ASSIGNS. All covenants and agreements by or on behalf of
Borrower contained in this Agreement or any Related Documents shall bind
Borrower's successors and assigns and shall inure to the benefit of Lender
and its successors and assigns. Borrower shall not, however, have the
right to assign Borrower's rights under this Agreement or any interest
therein, without the prior written consent of Lender.
SURVIVAL OF REPRESENTATIONS AND WARRANTIES. Borrower understands and
agrees that in extending Loan Advances, Lender is relying on all
representations, warranties, and covenants made by Borrower in this
Agreement or in any certificate or other instrument delivered by Borrower
to Lender under this Agreement or the Related Documents. Borrower further
agrees that regardless of any investigation made by Lender, all such
representations, warranties and covenants will survive the extension of
Loan Advances and delivery to Lender of the Related Documents, shall be
continuing in nature, shall be deemed made and redated by Borrower at the
time each Loan Advance is made, and shall remain in full force and effect
until such time as Borrower's Indebtedness shall be paid in full, or until
this Agreement shall be terminated in the manner provided above, whichever
is the last to occur.
TIME IS OF THE ESSENCE. Time is of the essence in the performance of this
Agreement.
WAIVE JURY. ALL PARTIES TO THIS AGREEMENT HEREBY WAIVE THE RIGHT TO ANY
JURY TRIAL IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM BROUGHT BY ANY PARTY
AGAINST ANY OTHER PARTY.
DEFINITIONS. The following capitalized words and terms shall have the following
meanings when used in this Agreement. Unless specifically stated to the
contrary, all references to dollar amounts shall mean amounts in lawful money of
the United States of America. Words and terms used in the singular shall include
the plural, and the plural shall include the singular, as the context may
require. Words and terms not otherwise defined in this Agreement shall have the
meanings attributed to such terms in the Uniform Commercial Code. Accounting
words and terms not otherwise defined in this Agreement shall have the meanings
assigned to them in accordance with generally accepted accounting principles as
in effect on the date of this Agreement:
ADVANCE. The word "Advance" means a disbursement of Loan funds made, or to
be made, to Borrower or on Borrower's behalf on a line of credit or
multiple advance basis under the terms and conditions of this Agreement.
AGREEMENT. The word "Agreement" means this Business Loan Agreement, as
this Business Loan Agreement may be amended or modified from time to time,
together with all exhibits and schedules attached to this Business Loan
Agreement from time to time.
BORROWER. The word "Borrower" means EvergreenBancorp, Inc. and includes
all co-signers and co-makers signing the Note.
PAGE 6
BUSINESS LOAN AGREEMENT
LOAN NO: 11001 (CONTINUED)
COLLATERAL. The word "Collateral" means all property and assets granted as
collateral security for a Loan, whether real or personal property, whether
granted directly or indirectly, whether granted now or in the future, and
whether granted in the form of a security interest, mortgage, collateral
mortgage, deed of trust, assignment, pledge, crop pledge, chattel
mortgage, collateral chattel mortgage, chattel trust, factor's lien,
equipment trust, conditional sale, trust receipt, lien, charge, lien or
title retention contract, lease or consignment intended as a security
device, or any other security or lien interest whatsoever, whether created
by law, contract, or otherwise.
ENVIRONMENTAL LAWS. The words "Environmental Laws" mean any and all state,
federal and local statutes, regulations and ordinances relating to the
protection of human health or the environment, including without
limitation the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended, 42 U.S.C. Section 9601, et seq.
("CERCLA"), the Superfund Amendments and Reauthorization Act of 1986, Pub.
L. No. 99-499 ("SARA"), the Hazardous Materials Transportation Act, 49
U.S.C. Section 1801, et seq., the Resource Conservation and Recovery Act,
42 U.S.C. Section 6901, et seq., or other applicable state or federal
laws, rules, or regulations adopted pursuant thereto.
EVENT OF DEFAULT. The words "Event of Default" mean any of the events of
default set forth in this Agreement in the default section of this
Agreement.
GAAP. The word "GAAP" means generally accepted accounting principles.
GRANTOR. The word "Grantor" means each and all of the persons or entities
granting a Security Interest in any Collateral for the Loan, including
without limitation all Borrowers granting such a Security Interest.
GUARANTOR. The word "Guarantor" means any guarantor, surety, or
accommodation party of any or all of the Loan.
GUARANTY. The word "Guaranty" means the guaranty from Guarantor to Lender,
including without limitation a guaranty of all or part of the Note.
HAZARDOUS SUBSTANCES. The words "Hazardous Substances" mean materials
that, because of their quantity, concentration or physical, chemical or
infectious characteristics, may cause or pose a present or potential
hazard to human health or the environment when improperly used, treated,
stored, disposed of, generated, manufactured, transported or otherwise
handled. The words "Hazardous Substances" are used in their very broadest
sense and include without limitation any and all hazardous or toxic
substances, materials or waste as defined by or listed under the
Environmental Laws. The term "Hazardous Substances" also includes, without
limitation, petroleum and petroleum by-products or any fraction thereof
and asbestos.
INDEBTEDNESS. The word "Indebtedness" means the indebtedness evidenced by
the Note or Related Documents, including all principal and interest
together with all other indebtedness and costs and expenses for which
Borrower is responsible under this Agreement or under any of the Related
Documents.
LENDER. The word "Lender" means KeyBank National Association, its
successors and assigns.
LOAN. The word "Loan" means any and all loans and financial accommodations
from Lender to Borrower whether now or hereafter existing, and however
evidenced, including without limitation those loans and financial
accommodations described herein or described on any exhibit or schedule
attached to this Agreement from time to time.
NOTE. The word "Note" means the Note executed by EvergreenBancorp, Inc. in
the principal amount of $5,000,000.00 dated January 26, 2005, together
with all renewals of,.extensions of, modifications of, refinancings of,
consolidations of, and substitutions for the note or credit agreement.
PERMITTED LIENS. The words "Permitted Liens" mean (1) liens and security
interests securing Indebtedness owed by Borrower to Lender; (2) liens for
taxes, assessments, or similar charges either not yet due or being
contested in good faith; (3) liens of materialmen, mechanics,
warehousemen, or carriers, or other like liens arising in the ordinary
course of business and securing obligations which are not yet delinquent;
(4) purchase money liens or purchase money security interests upon or in
any property acquired or held by Borrower in the ordinary course of
business to secure indebtedness outstanding on the date of this Agreement
or permitted to be incurred under the paragraph of this Agreement titled
"Indebtedness and Liens"; (5) liens and security interests which, as of
the date of this Agreement, have been disclosed to and approved by the
Lender in writing; and (6) those liens and security interests which in the
aggregate constitute an immaterial and insignificant monetary amount with
respect to the net value of Borrower's assets.
RELATED DOCUMENTS. The words "Related Documents" mean all promissory
notes, credit agreements, loan agreements, environmental agreements,
guaranties, security agreements, mortgages, deeds of trust, security
deeds, collateral mortgages, and all other instruments, agreements and
documents, whether now or hereafter existing, executed in connection with
the Loan.
SECURITY AGREEMENT. The words "Security Agreement" mean and include
without limitation any agreements, promises, covenants, arrangements,
understandings or other agreements, whether created by law, contract, or
otherwise, evidencing, governing, representing, or creating a Security
Interest.
SECURITY INTEREST. The words "Security Interest" mean, without limitation,
any and all types of collateral security, present and future, whether in
the form of a lien, charge, encumbrance, mortgage, deed of trust, security
deed, assignment, pledge, crop pledge, chattel mortgage, collateral
chattel mortgage, chattel trust, factor's lien, equipment trust,
conditional sale, trust receipt, lien or title retention contract, lease
or consignment intended as a security device, or any other security or
lien interest whatsoever whether created by law, contract, or otherwise.
BORROWER ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS BUSINESS LOAN
AGREEMENT AND BORROWER AGREES TO ITS TERMS. THIS BUSINESS LOAN AGREEMENT IS
DATED JANUARY 26, 2005.
BORROWER:
EVERGREENBANCORP, INC.
BY: /s/ Gerald O. Hatler BY: /s/ William G. Filer II
________________________________________________ _______________________________________________
GERALD O. HATLER, PRESIDENT OF EVERGREENBANCORP, WILLIAM G. FILER II, CHIEF FINANCIAL OFFICER OF
INC. EVERGREENBANCORP, INC.
PAGE 7
BUSINESS LOAN AGREEMENT
LOAN NO: 11001 (CONTINUED)
LENDER:
KEYBANK NATIONAL ASSOCIATION
BY: /s/ Cortland D. Rounds
________________________________________________
AUTHORIZED SIGNER
================================================================================
LASER PRO Lending, Ver. 5.24.10.002 Copr. Harland Financial Solutions, Inc.
1997, 2005. All Rights Reserved - WA N:\Lpro\CFI\LPL\C40.PC TR-83742 PR-3
[BAR CODE]
*31311385163500000110010D20*
PROMISSORY NOTE
PRINCIPAL LOAN DATE MATURITY LOAN NO CALL/COLL ACCOUNTS OFFICER INITIALS
$5,000,000.00 01-26-2005 02-01-2006 11001 402/511 N3113851635 CDROD
References in the shaded area are for Lender's use only and do not limit the
applicability of this document to any particular loan or item.
Any item above containing "***" has been omitted due to text length limitations.
BORROWER: EVERGREENBANCORP, INC. LENDER: KEYBANK NATIONAL ASSOCIATION
301 EASTLAKE AVENUE EAST WA-CB-TACOMA CORRESPONDENT BANKING
SEATTLE, WA 98109 1101 PACIFIC AVE.
1ST FLOOR
TACOMA, WA 98402
PRINCIPAL AMOUNT: $5,000,000.00 INITIAL RATE: 4.750% DATE OF NOTE: JANUARY 26, 2005
PROMISE TO PAY. EVERGREENBANCORP, INC. ("BORROWER") PROMISES TO PAY TO KEYBANK
NATIONAL ASSOCIATION ("LENDER"), OR ORDER, IN LAWFUL MONEY OF THE UNITED STATES
OF AMERICA, THE PRINCIPAL AMOUNT OF FIVE MILLION & 00/100 DOLLARS
($5,000,000.00) OR SO MUCH AS MAY BE OUTSTANDING, TOGETHER WITH INTEREST ON THE
UNPAID OUTSTANDING PRINCIPAL BALANCE OF EACH ADVANCE. INTEREST SHALL BE
CALCULATED FROM THE DATE OF EACH ADVANCE UNTIL REPAYMENT OF EACH ADVANCE.
PAYMENT. BORROWER WILL PAY THIS LOAN IN ONE PAYMENT OF ALL OUTSTANDING PRINCIPAL
PLUS ALL ACCRUED UNPAID INTEREST ON FEBRUARY 1, 2006. IN ADDITION, BORROWER WILL
PAY REGULAR QUARTERLY PAYMENTS OF ALL ACCRUED UNPAID INTEREST DUE AS OF EACH
PAYMENT DATE, BEGINNING MARCH 1, 2005, WITH ALL SUBSEQUENT INTEREST PAYMENTS TO
BE DUE ON THE SAME DAY OF EACH QUARTER AFTER THAT. UNLESS OTHERWISE AGREED OR
REQUIRED BY APPLICABLE LAW, PAYMENTS WILL BE APPLIED FIRST TO ANY ACCRUED UNPAID
INTEREST; THEN TO PRINCIPAL; THEN TO ANY UNPAID COLLECTION COSTS; AND THEN TO
ANY LATE CHARGES. THE ANNUAL INTEREST RATE FOR THIS NOTE IS COMPUTED ON A
365/360 BASIS; THAT IS, BY APPLYING THE RATIO OF THE ANNUAL INTEREST RATE OVER A
YEAR OF 360 DAYS, MULTIPLIED BY THE OUTSTANDING PRINCIPAL BALANCE, MULTIPLIED BY
THE ACTUAL NUMBER OF DAYS THE PRINCIPAL BALANCE IS OUTSTANDING. BORROWER WILL
PAY LENDER AT LENDER'S ADDRESS SHOWN ABOVE OR AT SUCH OTHER PLACE AS LENDER MAY
DESIGNATE IN WRITING.
VARIABLE INTEREST RATE. The interest rate on this Note is subject to change from
time to time based on changes in an index which is the Prime Rate announced by
Lender (the "Index"). The Index is not necessarily the lowest rate charged by
Lender on its loans and is set by Lender in its sole discretion. If the Index
becomes unavailable during the term of this loan, Lender may designate a
substitute index after notifying Borrower. Lender will tell Borrower the current
Index rate upon Borrower's request. The interest rate change will not occur more
often than each day that the Index changes. The interest rate will change
automatically and correspondingly on the date of each announced change of the
Index by Lender. Borrower understands that Lender may make loans based on other
rates as well. THE INDEX CURRENTLY IS 5.250% PER ANNUM. THE INTEREST RATE TO BE
APPLIED TO THE UNPAID PRINCIPAL BALANCE OF THIS NOTE WILL BE AT A RATE OF 0.500
PERCENTAGE POINTS UNDER THE INDEX, RESULTING IN AN INITIAL RATE OF 4.750% PER
ANNUM. NOTICE: Under no circumstances will the interest rate on this Note be
more than the maximum rate allowed by applicable law.
PREPAYMENT. Borrower may pay without penalty all or a portion of the amount owed
earlier than it is due. Early payments will not, unless agreed to by Lender in
writing, relieve Borrower of Borrower's obligation to continue to make payments
of accrued unpaid interest. Rather, early payments will reduce the principal
balance due. Borrower agrees not to send Lender payments marked "paid in full",
"without recourse", or similar language. If Borrower sends such a payment,
Lender may accept it without losing any of Lender's rights under this Note, and
Borrower will remain obligated to pay any further amount owed to Lender. All
written communications concerning disputed amounts, including any check or other
payment instrument that indicates that the payment constitutes "payment in full"
of the amount owed or that is tendered with other conditions or limitations or
as full satisfaction of a disputed amount must be mailed or delivered to:
KeyBank National Association, WA-CB-Tacoma Correspondent Banking, 1101 Pacific
Ave., 1st Floor, Tacoma, WA 98402.
LATE CHARGE. If a payment is 10 days or more late, Borrower will be charged
5.000% OF THE UNPAID PORTION OF THE REGULARLY SCHEDULED PAYMENT OR $50.00,
WHICHEVER IS GREATER.
INTEREST AFTER DEFAULT. Upon default, including failure to pay upon final
maturity, Lender, at its option, may, if permitted under applicable law,
increase the variable interest rate on this Note 3.000 percentage points. The
interest rate will not exceed the maximum rate permitted by applicable law.
DEFAULT. Each of the following shall constitute an event of default ("Event of
Default") under this Note:
PAYMENT DEFAULT. Borrower fails to make any payment when due under this
Note.
OTHER DEFAULTS. Borrower fails to comply with or to perform any other
term, obligation, covenant or condition contained in this Note or in any
of the related documents or to comply with or to perform any term,
obligation, covenant or condition contained in any other agreement between
Lender and Borrower.
DEFAULT IN FAVOR OF THIRD PARTIES. Borrower or any Grantor defaults under
any loan, extension of credit, security agreement, purchase or sales
agreement, or any other agreement, in favor of any other creditor or
person that may materially affect any of Borrower's property or Borrower's
ability to repay this Note or perform Borrower's obligations under this
Note or any of the related documents.
FALSE STATEMENTS. Any warranty, representation or statement made or
furnished to Lender by Borrower or on Borrower's behalf under this Note or
the related documents is false or misleading in any material respect,
either now or at the time made or furnished or becomes false or misleading
at any time thereafter.
INSOLVENCY. The dissolution or termination of Borrower's existence as a
going business, the insolvency of Borrower, the appointment of a receiver
for any part of Borrower's property, any assignment for the benefit of
creditors, any type of creditor workout, or the commencement of any
proceeding under any bankruptcy or insolvency laws by or against Borrower.
CREDITOR OR FORFEITURE PROCEEDINGS. Commencement of foreclosure or
forfeiture proceedings, whether by judicial proceeding, self-help,
repossession or any other method, by any creditor of Borrower or by any
governmental agency against any collateral securing the loan. This
includes a garnishment of any of Borrower's accounts, including deposit
accounts, with Lender. However, this Event of Default shall not apply if
there is a good faith dispute by Borrower as to the validity or
reasonableness of the claim which is the basis of the creditor or
forfeiture proceeding and if Borrower gives Lender written notice of the
creditor or forfeiture proceeding and deposits with Lender monies or a
surety bond for the creditor or forfeiture proceeding, in an amount
determined by Lender, in its sole discretion, as being an adequate reserve
or bond for the dispute.
PAGE 2
PROMISSORY NOTE
LOAN NO: 11001 (CONTINUED)
EVENTS AFFECTING GUARANTOR. Any of the preceding events occurs with
respect to any guarantor, endorser, surety, or accommodation party of any
of the indebtedness or any guarantor, endorser, surety, or accommodation
party dies or becomes incompetent, or revokes or disputes the validity of,
or liability under, any guaranty of the indebtedness evidenced by this
Note. In the event of a death, Lender, at its option, may, but shall not
be required to, permit the guarantor's estate to assume unconditionally
the obligations arising under the guaranty in a manner satisfactory to
Lender, and, in doing so, cure any Event of Default.
CHANGE IN OWNERSHIP. Any change in ownership of twenty-five percent (25%)
or more of the common stock of Borrower.
ADVERSE CHANGE. A material adverse change occurs in Borrower's financial
condition, or Lender believes the prospect of payment or performance of
this Note is impaired.
INSECURITY. Lender in good faith believes itself insecure.
CURE PROVISIONS. If any default, other than a default in payment or
failure to satisfy Lender's requirement in the Insufficient Market Value
of Securities section is curable and if Borrower has not been given a
notice of a breach of the same provision of this Note within the preceding
twelve (12) months, it may be cured if Borrower, after receiving written
notice from Lender demanding cure of such default: (1) cures the default
within fifteen (15) days; or (2) if the cure requires more than fifteen
(15) days, immediately initiates steps which Lender deems in Lender's sole
discretion to be sufficient to cure the default and thereafter continues
and completes all reasonable and necessary steps sufficient to produce
compliance as soon as reasonably practical.
LENDER'S RIGHTS. Upon default, Lender may declare the entire unpaid principal
balance on this Note and all accrued unpaid interest immediately due, and then
Borrower will pay that amount.
ATTORNEYS' FEES; EXPENSES. Lender may hire or pay someone else to help collect
this Note if Borrower does not pay. Borrower will pay Lender that amount. This
includes, subject to any limits under applicable law, Lender's attorneys' fees
and Lender's legal expenses, whether or not there is a lawsuit, including
attorneys' fees, expenses for bankruptcy proceedings (including efforts to
modify or vacate any automatic stay or injunction), and appeals. If not
prohibited by applicable law, Borrower also will pay any court costs, in
addition to all other sums provided by law.
JURY WAIVER. LENDER AND BORROWER HEREBY WAIVE THE RIGHT TO ANY JURY TRIAL IN ANY
ACTION, PROCEEDING, OR COUNTERCLAIM BROUGHT BY EITHER LENDER OR BORROWER AGAINST
THE OTHER.
GOVERNING LAW. THIS NOTE WILL BE GOVERNED BY, CONSTRUED AND ENFORCED IN
ACCORDANCE WITH FEDERAL LAW AND THE LAWS OF THE STATE OF WASHINGTON. THIS NOTE
HAS BEEN ACCEPTED BY LENDER IN THE STATE OF WASHINGTON.
DISHONORED ITEM FEE. Borrower will pay a fee to Lender of $20.00 if Borrower
makes a payment on Borrower's loan and the check or preauthorized charge with
which Borrower pays is later dishonored.
RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a
right of setoff in all Borrower's accounts with Lender (whether checking,
savings, or some other account). This includes all accounts Borrower holds
jointly with someone else and all accounts Borrower may open in the future.
However, this does not include any IRA or Keogh accounts, or any trust accounts
for which setoff would be prohibited by law. Borrower authorizes Lender, to the
extent permitted by applicable law, to charge or setoff all sums owing on the
indebtedness against any and all such accounts.
LINE OF CREDIT. This Note evidences a revolving line of credit. Advances under
this Note may be requested either orally or in writing by Borrower or as
provided in this paragraph. Lender may, but need not, require that all oral
requests be confirmed in writing. All communications, instructions, or
directions by telephone or otherwise to Lender are to be directed to Lender's
office shown above. The following persons currently are authorized to request
advances and authorize payments under the line of credit until Lender receives
from Borrower, at Lender's address shown above, written notice of revocation of
their authority: GERALD O. HATLER, PRESIDENT OF EVERGREENBANCORP, INC.; AND
WILLIAM G. FILER II, CHIEF FINANCIAL OFFICER OF EVERGREENBANCORP, INC. Borrower
agrees to be liable for all sums either: (A) advanced in accordance with the
instructions of an authorized person or (B) credited to any of Borrower's
accounts with Lender. The unpaid principal balance owing on this Note at any
time may be evidenced by endorsements on this Note or by Lender's internal
records, including daily computer print-outs. Lender will have no obligation to
advance funds under this Note if: (A) Borrower or any guarantor is in default
under the terms of this Note or any agreement that Borrower or any guarantor has
with Lender, including any agreement made in connection with the signing of this
Note; (B) Borrower or any guarantor ceases doing business or is insolvent; (C)
any guarantor seeks, claims or otherwise attempts to limit, modify or revoke
such guarantor's guarantee of this Note or any other loan with Lender; (D)
Borrower has applied funds provided pursuant to this Note for purposes other
than those authorized by Lender; or (E) Lender in good faith believes itself
insecure.
SUCCESSOR INTERESTS. The terms of this Note shall be binding upon Borrower, and
upon Borrower's heirs, personal representatives, successors and assigns, and
shall inure to the benefit of Lender and its successors and assigns.
GENERAL PROVISIONS. Lender may delay or forgo enforcing any of its rights or
remedies under this Note without losing them. Borrower and any other person who
signs, guarantees or endorses this Note, to the extent allowed by law, waive
presentment, demand for payment, and notice of dishonor. Upon any change in the
terms of this Note, and unless otherwise expressly stated in writing, no party
who signs this Note, whether as maker, guarantor, accommodation maker or
endorser, shall be released from liability. All such parties agree that Lender
may renew or extend (repeatedly and for any length of time) this loan or release
any party or guarantor or collateral; or impair, fail to realize upon or perfect
Lender's security interest in the collateral; and take any other action deemed
necessary by Lender without the consent of or notice to anyone. All such parties
also agree that Lender may modify this loan without the consent of or notice to
anyone other than the party with whom the modification is made. The obligations
under this Note are joint and several.
PAGE 3
PROMISSORY NOTE
LOAN NO: 11001 (CONTINUED)
PRIOR TO SIGNING THIS NOTE, BORROWER READ AND UNDERSTOOD ALL THE PROVISIONS OF
THIS NOTE, INCLUDING THE VARIABLE INTEREST RATE PROVISIONS. BORROWER AGREES TO
THE TERMS OF THE NOTE.
BORROWER ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THIS PROMISSORY NOTE.
BORROWER:
EVERGREENBANCORP, INC.
BY: /s/ Gerald O. Hatler BY: /s/ William G. Filer II
________________________________________________ _______________________________________________
GERALD O. HATLER, PRESIDENT OF EVERGREENBANCORP, WILLIAM G. FILER II, CHIEF FINANCIAL OFFICER OF
INC. EVERGREENBANCORP, INC.
================================================================================
LASER PRO Lending, Ver. 5.24.10.002 Copr. Harland Financial Solutions, Inc.
1997, 2005. All Rights Reserved - WA N:\Lpro\CFI\LPL\D20.PC TR-83742 PR-3
[BAR CODE]
*31311385163500000110010E60*
COMMERCIAL PLEDGE AGREEMENT
Principal Loan Date Maturity Loan No Call/coll Accounts Officer Initials
$5,000,000.00 01-26-2005 02-01-2006 11001 402/511 N3113851635 CDROD
References in the shaded area are for Lender's use only and do not limit the
applicability of this document to any particular loan or item.
Any item above containing "***" has been omitted due to text length limitations.
GRANTOR: EVERGREENBANCORP, INC. LENDER: KEYBANK NATIONAL ASSOCIATION
301 EASTLAKE AVENUE EAST WA-CB-TACOMA CORRESPONDENT BANKING
SEATTLE, WA 98109 1101 PACIFIC AVE.
1ST FLOOR
TACOMA, WA 98402
THIS COMMERCIAL PLEDGE AGREEMENT DATED JANUARY 26, 2005, IS MADE AND EXECUTED
BETWEEN EVERGREENBANCORP, INC. ("GRANTOR") AND KEYBANK NATIONAL ASSOCIATION
("LENDER").
GRANT OF SECURITY INTEREST. FOR VALUABLE CONSIDERATION, GRANTOR GRANTS TO LENDER
A SECURITY INTEREST IN THE COLLATERAL TO SECURE THE INDEBTEDNESS AND AGREES THAT
LENDER SHALL HAVE THE RIGHTS STATED IN THIS AGREEMENT WITH RESPECT TO THE
COLLATERAL, IN ADDITION TO ALL OTHER RIGHTS WHICH LENDER MAY HAVE BY LAW.
COLLATERAL DESCRIPTION. The word "Collateral" as used in this Agreement means
all of Grantor's property (however owned if more than one), in the possession
of, or subject to the control of, Lender (or in the possession of, or subject to
the control of, a third party subject to the control of Lender), whether
existing now or later and whether tangible or intangible in character, including
without limitation each and all of the following:
622,762 SHARES OF EVERGREEN BANK STOCK, ISSUED IN THE NAME OF
EVERGREENBANCORP, INC., ISSUED ON JUNE 20, 2001, CUSIP NO. 300186103
In addition, the word "Collateral" includes all of Grantor's property (however
owned), in the possession of, or subject to the control of, Lender (or in the
possession of, or subject to the control of, a third party subject to the
control of Lender), whether now or hereafter existing and whether tangible or
intangible in character, including without limitation each of the following:
(A) ALL PROPERTY TO WHICH LENDER ACQUIRES TITLE OR DOCUMENTS OF TITLE.
(B) ALL PROPERTY ASSIGNED TO LENDER.
(C) ALL PROMISSORY NOTES, BILLS OF EXCHANGE, STOCK CERTIFICATES, BONDS,
INVESTMENT PROPERTY, SAVINGS PASSBOOKS, TIME CERTIFICATES OF DEPOSIT,
INSURANCE POLICIES, AND ALL OTHER INSTRUMENTS AND EVIDENCES OF AN
OBLIGATION.
(D) ALL RECORDS RELATING TO ANY OF THE PROPERTY DESCRIBED IN THIS
COLLATERAL SECTION, WHETHER IN THE FORM OF A WRITING, MICROFILM,
MICROFICHE, OR ELECTRONIC MEDIA.
(E) ALL INCOME AND PROCEEDS FROM THE COLLATERAL AS DEFINED HEREIN.
CROSS-COLLATERALIZATION. In addition to the Note, this Agreement secures all
obligations, debts and liabilities, plus interest thereon, of Grantor to Lender,
or any one or more of them, as well as all claims by Lender against Grantor or
any one or more of them, whether now existing or hereafter arising, whether
related or unrelated to the purpose of the Note, whether voluntary or otherwise,
whether due or not due, direct or indirect, determined or undetermined, absolute
or contingent, liquidated or unliquidated whether Grantor may be liable
individually or jointly with others, whether obligated as guarantor, surety,
accommodation party or otherwise, and whether recovery upon such amounts may be
or hereafter may become barred by any statute of limitations, and whether the
obligation to repay such amounts may be or hereafter may become otherwise
unenforceable.
RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a
right of setoff in all Grantor's accounts with Lender (whether checking,
savings, or some other account). This includes all accounts Grantor holds
jointly with someone else and all accounts Grantor may open in the future.
However, this does not include any IRA or Keogh accounts, or any trust accounts
for which setoff would be prohibited by law. Grantor authorizes Lender, to the
extent permitted by applicable law, to charge or setoff all sums owing on the
Indebtedness against any and all such accounts.
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE COLLATERAL. Grantor
represents and warrants to Lender that:
OWNERSHIP. Grantor is the lawful owner of the Collateral free and clear of
all security interests, liens, encumbrances and claims of others except as
disclosed to and accepted by Lender in writing prior to execution of this
Agreement.
RIGHT TO PLEDGE. Grantor has the full right, power and authority to enter
into this Agreement and to pledge the Collateral.
AUTHORITY; BINDING EFFECT. Grantor has the full right, power and authority
to enter into this Agreement and to grant a security interest in the
Collateral to Lender. This Agreement is binding upon Grantor as well as
Grantor's successors and assigns, and is legally enforceable in accordance
with its terms. The foregoing representations and warranties, and all
other representations and warranties contained in this Agreement are and
shall be continuing in nature and shall remain in full force and effect
until such time as this Agreement is terminated or cancelled as provided
herein.
NO FURTHER ASSIGNMENT. Grantor has not, and shall not, sell, assign,
transfer, encumber or otherwise dispose of any of Grantor's rights in the
Collateral except as provided in this Agreement.
NO DEFAULTS. There are no defaults existing under the Collateral, and
there are no offsets or counterclaims to the same. Grantor will strictly
and promptly perform each of the terms, conditions, covenants and
agreements, if any, contained in the Collateral which are to be performed
by Grantor.
NO VIOLATION. The execution and delivery of this Agreement will not
violate any law or agreement governing Grantor or to which Grantor is a
party, and its certificate or articles of incorporation and bylaws do not
prohibit any term or condition of this Agreement.
FINANCING STATEMENTS. Grantor authorizes Lender to file a UCC financing
statement, or alternatively, a copy of this Agreement to perfect
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COMMERCIAL PLEDGE AGREEMENT
LOAN NO: 11001 (CONTINUED)
Lender's security interest. At Lender's request, Grantor additionally
agrees to sign all other documents that are necessary to perfect, protect,
and continue Lender's security interest in the Property. Grantor will pay
all filing fees, title transfer fees, and other fees and costs involved
unless prohibited by law or unless Lender is required by law to pay such
fees and costs. Grantor irrevocably appoints Lender to execute documents
necessary to transfer title if there is a default. Lender may file a copy
of this Agreement as a financing statement. If Grantor changes Grantor's
name or address, or the name or address of any person granting a security
interest under this Agreement changes, Grantor will promptly notify the
Lender of such change.
LENDER'S RIGHTS AND OBLIGATIONS WITH RESPECT TO THE COLLATERAL. Lender may hold
the Collateral until all Indebtedness has been paid and satisfied. Thereafter
Lender may deliver the Collateral to Grantor or to any other owner of the
Collateral. Lender shall have the following rights in addition to all other
rights Lender may have by law:
MAINTENANCE AND PROTECTION OF COLLATERAL. Lender may, but shall not be
obligated to, take such steps as it deems necessary or desirable to
protect, maintain, insure, store, or care for the Collateral, including
paying of any liens or claims against the Collateral. This may include
such things as hiring other people, such as attorneys, appraisers or other
experts. Lender may charge Grantor for any cost incurred in so doing. When
applicable law provides more than one method of perfection of Lender's
security interest, Lender may choose the method(s) to be used. If the
Collateral consists of stock, bonds or other securities for which no
certificate has been issued, Grantor agrees, at Lender's request, either
to request issuance of an appropriate certificate or to give instructions
on Lender's forms to the issuer, transfer agent, mutual fund company, or
broker, as the case may be, to record on its books or records Lender's
security interest in the Collateral.
INCOME AND PROCEEDS FROM THE COLLATERAL. Lender may receive all Income and
Proceeds and add it to the Collateral. Grantor agrees to deliver to Lender
immediately upon receipt, in the exact form received and without
commingling with other property, all Income and Proceeds from the
Collateral which may be received by, paid, or delivered to Grantor or for
Grantor's account, whether as an addition to, in discharge of, in
substitution of, or in exchange for any of the Collateral.
APPLICATION OF CASH. At Lender's option, Lender may apply any cash,
whether included in the Collateral or received as Income and Proceeds or
through liquidation, sale, or retirement, of the Collateral, to the
satisfaction of the Indebtedness or such portion thereof as Lender shall
choose, whether or not matured.
TRANSACTIONS WITH OTHERS. Lender may (1) extend time for payment or other
performance, (2) grant a renewal or change in terms or conditions, or (3)
compromise, compound or release any obligation, with any one or more
Obligors, endorsers, or Guarantors of the Indebtedness as Lender deems
advisable, without obtaining the prior written consent of Grantor, and no
such act or failure to act shall affect Lender's rights against Grantor or
the Collateral.
ALL COLLATERAL SECURES INDEBTEDNESS. All Collateral shall be security for
the Indebtedness, whether the Collateral is located at one or more offices
or branches of Lender. This will be the case whether or not the office or
branch where Grantor obtained Grantor's loan knows about the Collateral or
relies upon the Collateral as security.
COLLECTION OF COLLATERAL. Lender at Lender's option may, but need not,
collect the Income and Proceeds directly from the Obligors. Grantor
authorizes and directs the Obligors, if Lender decides to collect the
Income and Proceeds, to pay and deliver to Lender all Income and Proceeds
from the Collateral and to accept Lender's receipt for the payments.
POWER OF ATTORNEY. Grantor irrevocably appoints Lender as Grantor's
attorney-in-fact, with full power of substitution, (a) to demand, collect,
receive, receipt for, sue and recover all Income and Proceeds and other
sums of money and other property which may now or hereafter become due,
owing or payable from the Obligors in accordance with the terms of the
Collateral; (b) to execute, sign and endorse any and all instruments,
receipts, checks, drafts and warrants issued in payment for the
Collateral; (c) to settle or compromise any and all claims arising under
the Collateral, and in the place and stead of Grantor, execute and deliver
Grantor's release and acquittance for Grantor; (d) to file any claim or
claims or to take any action or institute or take part in any proceedings,
either in Lender's own name or in the name of Grantor, or otherwise, which
in the discretion of Lender may seem to be necessary or advisable; and (e)
to execute in Grantor's name and to deliver to the Obligors on Grantor's
behalf, at the time and in the manner specified by the Collateral, any
necessary instruments or documents.
PERFECTION OF SECURITY INTEREST. Upon Lender's request, Grantor will
deliver to Lender any and all of the documents evidencing or constituting
the Collateral. When applicable law provides more than one method of
perfection of Lender's security interest, Lender may choose the method(s)
to be used. Upon Lender's request, Grantor will sign and deliver any
writings necessary to perfect Lender's security interest. If any of the
Collateral consists of investment property for which no certificate has
been issued, Grantor agrees, at Lender's option, either to request
issuance of an appropriate certificate or to execute appropriate
instructions on Lender's forms instructing the issuer, transfer agent,
mutual fund company, or broker, as the case may be, to record on its books
or records, by book-entry or otherwise, Lender's security interest in the
Collateral. Grantor hereby appoints Lender as Grantor's irrevocable
attorney-in-fact for the purpose of executing any documents necessary to
perfect, amend, or to continue the security interest granted in this
Agreement or to demand termination of filings of other secured parties.
THIS IS A CONTINUING SECURITY AGREEMENT AND WILL CONTINUE IN EFFECT EVEN
THOUGH ALL OR ANY PART OF THE INDEBTEDNESS IS PAID IN FULL AND EVEN THOUGH
FOR A PERIOD OF TIME GRANTOR MAY NOT BE INDEBTED TO LENDER.
LENDER'S EXPENDITURES. If any action or proceeding is commenced that would
materially affect Lender's interest in the Collateral or if Grantor fails to
comply with any provision of this Agreement or any Related Documents, including
but not limited to Grantor's failure to discharge or pay when due any amounts
Grantor is required to discharge or pay under this Agreement or any Related
Documents, Lender on Grantor's behalf may (but shall not be obligated to) take
any action that Lender deems appropriate, including but not limited to
discharging or paying all taxes, liens, security interests, encumbrances and
other claims, at any time levied or placed on the Collateral and paying all
costs for insuring, maintaining and preserving the Collateral. All such
expenditures incurred or paid by Lender for such purposes will then bear
interest at the rate charged under the Note from the date incurred or paid by
Lender to the date of repayment by Grantor. All such expenses will become a part
of the Indebtedness and, at Lender's option, will (A) be payable on demand; (B)
be added to the balance of the Note and be apportioned among and be payable with
any installment payments to become due during either (1) the term of any
applicable insurance policy; or (2) the remaining term of the Note; or (C) be
treated as a balloon payment which will be due and payable at the Note's
maturity. The Agreement also will secure payment of these amounts. Such right
shall be in addition to all other rights and remedies to which Lender may be
entitled upon Default.
LIMITATIONS ON OBLIGATIONS OF LENDER. Lender shall use ordinary reasonable care
in the physical preservation and custody of the Collateral in Lender's
possession, but shall have no other obligation to protect the Collateral or its
value. In particular, but without limitation, Lender shall have no
responsibility for (A) any depreciation in value of the Collateral or for the
collection or protection of any Income and Proceeds from the Collateral, (B)
preservation of rights against parties to the Collateral or against third
persons, (C) ascertaining any maturities, calls, conversions, exchanges, offers,
tenders, or similar matters relating to any of the Collateral, or (D) informing
Grantor about any
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COMMERCIAL PLEDGE AGREEMENT
LOAN NO: 11001 (CONTINUED)
of the above, whether or not Lender has or is deemed to have knowledge of such
matters. Except as provided above, Lender shall have no liability for
depreciation or deterioration of the Collateral.
DEFAULT. Each of the following shall constitute an Event of Default under this
Agreement:
PAYMENT DEFAULT. Grantor fails to make any payment when due under the
Indebtedness.
OTHER DEFAULTS. Grantor fails to comply with or to perform any other term,
obligation, covenant or condition contained in this Agreement or in any of
the Related Documents or to comply with or to perform any term,
obligation, covenant or condition contained in any other agreement between
Lender and Grantor.
DEFAULT IN FAVOR OF THIRD PARTIES. Should Grantor or any Grantor default
under any loan, extension of credit, security agreement, purchase or sales
agreement, or any other agreement, in favor of any other creditor or
person that may materially affect any of Grantor's property or Grantor's
or any Grantor's ability to repay the Indebtedness or perform their
respective obligations under this Agreement or any of the Related
Documents.
FALSE STATEMENTS. Any warranty, representation or statement made or
furnished to Lender by Grantor or on Grantor's behalf under this Agreement
or the Related Documents is false or misleading in any material respect,
either now or at the time made or furnished or becomes false or misleading
at any time thereafter.
DEFECTIVE COLLATERALIZATION. This Agreement or any of the Related
Documents ceases to be in full force and effect (including failure of any
collateral document to create a valid and perfected security interest or
lien) at any time and for any reason.
INSOLVENCY. The dissolution or termination of Grantor's existence as a
going business, the insolvency of Grantor, the appointment of a receiver
for any part of Grantor's property, any assignment for the benefit of
creditors, any type of creditor workout, or the commencement of any
proceeding under any bankruptcy or insolvency laws by or against Grantor.
CREDITOR OR FORFEITURE PROCEEDINGS. Commencement of foreclosure or
forfeiture proceedings, whether by judicial proceeding, self-help,
repossession or any other method, by any creditor of Grantor or by any
governmental agency against any collateral securing the Indebtedness. This
includes a garnishment of any of Grantor's accounts, including deposit
accounts, with Lender. However, this Event of Default shall not apply if
there is a good faith dispute by Grantor as to the validity or
reasonableness of the claim which is the basis of the creditor or
forfeiture proceeding and if Grantor gives Lender written notice of the
creditor or forfeiture proceeding and deposits with Lender monies or a
surety bond for the creditor or forfeiture proceeding, in an amount
determined by Lender, in its sole discretion, as being an adequate reserve
or bond for the dispute.
EVENTS AFFECTING GUARANTOR. Any of the preceding events occurs with
respect to any guarantor, endorser, surety, or accommodation party of any
of the Indebtedness or guarantor, endorser, surety, or accommodation party
dies or becomes incompetent or revokes or disputes the validity of, or
liability under, any Guaranty of the Indebtedness.
ADVERSE CHANGE. A material adverse change occurs in Grantor's financial
condition, or Lender believes the prospect of payment or performance of
the Indebtedness is impaired.
INSECURITY. Lender in good faith believes itself insecure.
CURE PROVISIONS. If any default, other than a default in payment or
failure to satisfy Lender's requirement in the Insufficient Market Value
of Securities section is curable and if Grantor has not been given a
notice of a breach of the same provision of this Agreement within the
preceding twelve (12) months, it may be cured if Grantor, after receiving
written notice from Lender demanding cure of such default: (1) cures the
default within fifteen (15) days; or (2) if the cure requires more than
fifteen (15) days, immediately initiates steps which Lender deems in
Lender's sole discretion to be sufficient to cure the default and
thereafter continues and completes all reasonable and necessary steps
sufficient to produce compliance as soon as reasonably practical.
RIGHTS AND REMEDIES ON DEFAULT. If an Event of Default occurs under this
Agreement, at any time thereafter, Lender may exercise any one or more of the
following rights and remedies:
ACCELERATE INDEBTEDNESS. Declare all Indebtedness, including any
prepayment penalty which Grantor would be required to pay, immediately due
and payable, without notice of any kind to Grantor.
COLLECT THE COLLATERAL. Collect any of the Collateral and, at Lender's
option and to the extent permitted by applicable law, retain possession of
the Collateral while suing on the Indebtedness.
SELL THE COLLATERAL. Sell the Collateral, at Lender's discretion, as a
unit or in parcels, at one or more public or private sales. Unless the
Collateral is perishable or threatens to decline speedily in value or is
of a type customarily sold on a recognized market, Lender shall give or
mail to Grantor, and other persons as required by law, notice at least ten
(10) days in advance of the time and place of any public sale, or of the
time after which any private sale may be made. However, no notice need be
provided to any person who, after an Event of Default occurs, enters into
and authenticates an agreement waiving that person's right to notification
of sale. Grantor agrees that any requirement of reasonable notice as to
Grantor is satisfied if Lender mails notice by ordinary mail addressed to
Grantor at the last address Grantor has given Lender in writing. If a
public sale is held, there shall be sufficient compliance with all
requirements of notice to the public by a single publication in any
newspaper of general circulation in the county where the Collateral is
located, setting forth the time and place of sale and a brief description
of the property to be sold. Lender may be a purchaser at any public sale.
SELL SECURITIES. Sell any securities included in the Collateral in a
manner consistent with applicable federal and state securities laws. If,
because of restrictions under such laws, Lender is unable, or believes
Lender is unable, to sell the securities in an open market transaction,
Grantor agrees that Lender will have no obligation to delay sale until the
securities can be registered. Then Lender may make a private sale to one
or more persons or to a restricted group of persons, even though such sale
may result in a price that is less favorable than might be obtained in an
open market transaction. Such a sale will be considered commercially
reasonable. If any securities held as Collateral are "restricted
securities" as defined in the Rules of the Securities and Exchange
Commission (such as Regulation D or Rule 144) or the rules of state
securities departments under state "Blue Sky" laws, or if Grantor or any
other owner of the Collateral is an affiliate of the issuer of the
securities, Grantor agrees that neither Grantor, nor any member of
Grantor's family, nor any other person signing this Agreement will sell or
dispose of any securities of such issuer without obtaining Lender's prior
written consent.
RIGHTS AND REMEDIES WITH RESPECT TO INVESTMENT PROPERTY, FINANCIAL ASSETS
AND RELATED COLLATERAL. In addition to other rights and remedies granted
under this Agreement and under applicable law, Lender may exercise any or
all of the following rights and remedies: (1) register with any issuer or
broker or other securities intermediary any of the Collateral consisting
of investment property or financial assets (collectively herein,
"investment property") in Lender's sole name or in the name of Lender's
broker, agent or nominee; (2) cause any
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COMMERCIAL PLEDGE AGREEMENT
LOAN NO: 11001 (CONTINUED)
issuer, broker or other securities intermediary to deliver to Lender any
of the Collateral consisting of securities, or investment property capable
of being delivered; (3) enter into a control agreement or power of
attorney with any issuer or securities intermediary with respect to any
Collateral consisting of investment property, on such terms as Lender may
deem appropriate, in its sole discretion, including without limitation, an
agreement granting to Lender any of the rights provided hereunder without
further notice to or consent by Grantor; (4) execute any such control
agreement on Grantor's behalf and in Grantor's name, and hereby
irrevocably appoints Lender as agent and attorney-in-fact, coupled with an
interest, for the purpose of executing such control agreement on Grantor's
behalf; (5) exercise any and all rights of Lender under any such control
agreement or power of attorney; (6) exercise any voting, conversion,
registration, purchase, option, or other rights with respect to any
Collateral; (7) collect, with or without legal action, and issue receipts
concerning any notes, checks, drafts, remittances or distributions that
are paid or payable with respect to any Collateral consisting of
investment property. Any control agreement entered with respect to any
investment property shall contain the following provisions, at Lender's
discretion. Lender shall be authorized to instruct the issuer, broker or
other securities intermediary to take or to refrain from taking such
actions with respect to the investment property as Lender may instruct,
without further notice to or consent by Grantor. Such actions may include
without limitation the issuance of entitlement orders, account
instructions, general trading or buy or sell orders, transfer and
redemption orders, and stop loss orders. Lender shall be further entitled
to instruct the issuer, broker or securities intermediary to sell or to
liquidate any investment property, or to pay the cash surrender or account
termination value with respect to any and all investment property, and to
deliver all such payments and liquidation proceeds to Lender. Any such
control agreement shall contain such authorizations as are necessary to
place Lender in "control" of such investment collateral, as contemplated
under the provisions of the Uniform Commercial Code, and shall fully
authorize Lender to issue "entitlement orders" concerning the transfer,
redemption, liquidation or disposition of investment collateral, in
conformance with the provisions of the Uniform Commercial Code.
FORECLOSURE. Maintain a judicial suit for foreclosure and sale of the
Collateral.
TRANSFER TITLE. Effect transfer of title upon sale of all or part of the
Collateral. For this purpose, Grantor irrevocably appoints Lender as
Grantor's attorney-in-fact to execute endorsements, assignments and
instruments in the name of Grantor and each of them (if more than one) as
shall be necessary or reasonable.
OTHER RIGHTS AND REMEDIES. Have and exercise any or all of the rights and
remedies of a secured creditor under the provisions of the Uniform
Commercial Code, at law, in equity, or otherwise.
APPLICATION OF PROCEEDS. Apply any cash which is part of the Collateral,
or which is received from the collection or sale of the Collateral, to
reimbursement of any expenses, including any costs for registration of
securities, commissions incurred in connection with a sale, attorneys'
fees and court costs, whether or not there is a lawsuit and including any
fees on appeal, incurred by Lender in connection with the collection and
sale of such Collateral and to the payment of the Indebtedness of Grantor
to Lender, with any excess funds to be paid to Grantor as the interests of
Grantor may appear. Grantor agrees, to the extent permitted by law, to pay
any deficiency after application of the proceeds of the Collateral to the
Indebtedness.
ELECTION OF REMEDIES. Except as may be prohibited by applicable law, all
of Lender's rights and remedies, whether evidenced by this Agreement, the
Related Documents, or by any other writing, shall be cumulative and may be
exercised singularly or concurrently. Election by Lender to pursue any
remedy shall not exclude pursuit of any other remedy, and an election to
make expenditures or to take action to perform an obligation of Grantor
under this Agreement, after Grantor's failure to perform, shall not affect
Lender's right to declare a default and exercise its remedies.
ADDITIONAL EVENT OF DEFAULT. In addition to the above DEFAULT provisions, the
following shall constitute an Event of Default under this Agreement:
INSUFFICIENT MARKET VALUE OF SECURITIES.
The Indebtedness to market value of Collateral percentage exceeds 50%; and
the event of a deterioration of the market value of the Collateral,
Grantor does not, by the close of business on the next business day after
Grantor has received notice from Lender of such deterioration, either (1)
reduce the amount of the Indebtedness as required by Lender or (2) pledge
or grant an additional security interest to increase the value of the
Collateral as required by Lender.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of
this Agreement:
AMENDMENTS. This Agreement, together with any Related Documents,
constitutes the entire understanding and agreement of the parties as to
the matters set forth in this Agreement. No alteration of or amendment to
this Agreement shall be effective unless given in writing and signed by
the party or parties sought to be charged or bound by the alteration or
amendment.
ATTORNEYS' FEES; EXPENSES. Grantor agrees to pay upon demand all of
Lender's costs and expenses, including Lender's attorneys' fees and
Lender's legal expenses, incurred in connection with the enforcement of
this Agreement. Lender may hire or pay someone else to help enforce this
Agreement, and Grantor shall pay the costs and expenses of such
enforcement. Costs and expenses include Lender's attorneys' fees and legal
expenses whether or not there is a lawsuit, including attorneys' fees and
legal expenses for bankruptcy proceedings (including efforts to modify or
vacate any automatic stay or injunction), appeals, and any anticipated
post-judgment collection services. Grantor also shall pay all court costs
and such additional fees as may be directed by the court.
CAPTION HEADINGS. Caption headings in this Agreement are for convenience
purposes only and are not to be used to interpret or define the provisions
of this Agreement.
GOVERNING LAW. THIS AGREEMENT WILL BE GOVERNED BY, CONSTRUED AND ENFORCED
IN ACCORDANCE WITH FEDERAL LAW AND THE LAWS OF THE STATE OF WASHINGTON.
THIS AGREEMENT HAS BEEN ACCEPTED BY LENDER IN THE STATE OF WASHINGTON.
NO WAIVER BY LENDER. Lender shall not be deemed to have waived any rights
under this Agreement unless such waiver is given in writing and signed by
Lender. No delay or omission on the part of Lender in exercising any right
shall operate as a waiver of such right or any other right. A waiver by
Lender of a provision of this Agreement shall not prejudice or constitute
a waiver of Lender's right otherwise to demand strict compliance with that
provision or any other provision of this Agreement. No prior waiver by
Lender, nor any course of dealing between Lender and Grantor, shall
constitute a waiver of any of Lender's rights or of any of Grantor's
obligations as to any future transactions. Whenever the consent of Lender
is required under this Agreement, the granting of such consent by Lender
in any instance shall not constitute continuing consent to subsequent
instances where such consent is required and in all cases such consent may
be granted or withheld in the sole discretion of Lender.
PREFERENCE PAYMENTS. Any monies Lender pays because of an asserted
preference claim in Grantor's bankruptcy will become a part of the
Indebtedness and, at Lender's option, shall be payable by Grantor as
provided in this Agreement.
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COMMERCIAL PLEDGE AGREEMENT
LOAN NO: 11001 (CONTINUED)
NOTICES. Subject to applicable law, and except for notice required or
allowed by law to be given in another manner, any notice required to be
given under this Agreement shall be given in writing, and shall be
effective when actually delivered, when actually received by telefacsimile
(unless otherwise required by law), when deposited with a nationally
recognized overnight courier, or, if mailed, when deposited in the United
States mail, as first class, certified or registered mail postage prepaid,
directed to the addresses shown near the beginning of this Agreement. Any
party may change its address for notices under this Agreement by giving
formal written notice to the other parties, specifying that the purpose of
the notice is to change the party's address. For notice purposes, Grantor
agrees to keep Lender informed at all times of Grantor's current address.
Subject to applicable law, and except for notice required or allowed by
law to be given in another manner, if there is more than one Grantor, any
notice given by Lender to any Grantor is deemed to be notice given to all
Grantors.
WAIVER OF CO-OBLIGOR'S RIGHTS. If more than one person is obligated for
the Indebtedness, Grantor irrevocably waives, disclaims and relinquishes
all claims against such other person which Grantor has or would otherwise
have by virtue of payment of the Indebtedness or any part thereof,
specifically including but not limited to all rights of indemnity,
contribution or exoneration.
SEVERABILITY. If a court of competent jurisdiction finds any provision of
this Agreement to be illegal, invalid, or unenforceable as to any
circumstance, that finding shall not make the offending provision illegal,
invalid, or unenforceable as to any other circumstance. If feasible, the
offending provision shall be considered modified so that it becomes legal,
valid and enforceable. If the offending provision cannot be so modified,
it shall be considered deleted from this Agreement. Unless otherwise
required by law, the illegality, invalidity, or unenforceability of any
provision of this Agreement shall not affect the legality, validity or
enforceability of any other provision of this Agreement.
SUCCESSORS AND ASSIGNS. Subject to any limitations stated in this
Agreement on transfer of Grantor's interest, this Agreement shall be
binding upon and inure to the benefit of the parties, their successors and
assigns. If ownership of the Collateral becomes vested in a person other
than Grantor, Lender, without notice to Grantor, may deal with Grantor's
successors with reference to this Agreement and the Indebtedness by way of
forbearance or extension without releasing Grantor from the obligations of
this Agreement or liability under the Indebtedness.
TIME IS OF THE ESSENCE. Time is of the essence in the performance of this
Agreement.
WAIVE JURY. ALL PARTIES TO THIS AGREEMENT HEREBY WAIVE THE RIGHT TO ANY
JURY TRIAL IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM BROUGHT BY ANY PARTY
AGAINST ANY OTHER PARTY.
DEFINITIONS. The following capitalized words and terms shall have the following
meanings when used in this Agreement. Unless specifically stated to the
contrary, all references to dollar amounts shall mean amounts in lawful money of
the United States of America. Words and terms used in the singular shall include
the plural, and the plural shall include the singular, as the context may
require. Words and terms not otherwise defined in this Agreement shall have the
meanings attributed to such terms in the Uniform Commercial Code:
AGREEMENT. The word "Agreement" means this Commercial Pledge Agreement, as
this Commercial Pledge Agreement may be amended or modified from time to
time, together with all exhibits and schedules attached to this Commercial
Pledge Agreement from time to time.
BORROWER. The word "Borrower" means EvergreenBancorp, Inc. and includes
all co-signers and co-makers signing the Note.
COLLATERAL. The word "Collateral" means all of Grantor's right, title and
interest in and to all the Collateral as described in the Collateral
Description section of this Agreement.
DEFAULT. The word "Default" means the Default set forth in this Agreement
in the section titled "Default".
EVENT OF DEFAULT. The words "Event of Default" mean any of the events of
default set forth in this Agreement in the default section of this
Agreement.
GRANTOR. The word "Grantor" means EvergreenBancorp, Inc..
GUARANTY. The word "Guaranty" means the guaranty from guarantor, endorser,
surety, or accommodation party to Lender, including without limitation a
guaranty of all or part of the Note.
INCOME AND PROCEEDS. The words "Income and Proceeds" mean all present and
future income, proceeds, earnings, increases, and substitutions from or
for the Collateral of every kind and nature, including without limitation
all payments, interest, profits, distributions, benefits, rights, options,
warrants, dividends, stock dividends, stock splits, stock rights,
regulatory dividends, subscriptions, monies, claims for money due and to
become due, proceeds of any insurance on the Collateral, shares of stock
of different par value or no par value issued in substitution or exchange
for shares included in the Collateral, and all other property Grantor is
entitled to receive on account of such Collateral, including accounts,
documents, instruments, chattel paper, investment property, and general
intangibles.
INDEBTEDNESS. The word "Indebtedness" means the indebtedness evidenced by
the Note or Related Documents, including all principal and interest
together with all other indebtedness and costs and expenses for which
Grantor is responsible under this Agreement or under any of the Related
Documents.
LENDER. The word "Lender" means KeyBank National Association, its
successors and assigns.
NOTE. The word "Note" means the Note executed by EvergreenBancorp, Inc. in
the principal amount of $5,000,000.00 dated January 26, 2005, together
with all renewals of, extensions of, modifications of, refinancings of,
consolidations of, and substitutions for the note or credit agreement.
OBLIGOR. The word "Obligor" means without limitation any and all persons
obligated to pay money or to perform some other act under the Collateral.
PROPERTY. The word "Property" means all of Grantor's right, title and
interest in and to all the Property as described in the "Collateral
Description" section of this Agreement.
RELATED DOCUMENTS. The words "Related Documents" mean all promissory
notes, credit agreements, loan agreements, environmental agreements,
guaranties, security agreements, mortgages, deeds of trust, security
deeds, collateral mortgages, and all other instruments, agreements and
documents, whether now or hereafter existing, executed in connection with
the Indebtedness.
GRANTOR HAS READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS COMMERCIAL PLEDGE
AGREEMENT AND AGREES TO ITS TERMS. THIS AGREEMENT IS DATED JANUARY 26, 2005.
PAGE 6
COMMERCIAL PLEDGE AGREEMENT
LOAN NO: 11001 (CONTINUED)
GRANTOR:
EVERGREENBANCORP, INC.
BY: Gerald O. Hatler BY: /s/ William G. Filer II
________________________________________________ ___________________________________________________
GERALD O. HATLER, PRESIDENT OF EVERGREENBANCORP, WILLIAM G. FILER II, CHIEF FINANCIAL OFFICER OF
INC. EVERGREENBANCORP, INC.
================================================================================
LASER PRO Lending, Ver. 5.24.10.002 Copr. Harland Financial Solutions, Inc.
1997, 2005. All Rights Reserved - WA N:\Lpro\CFI\LPL\E60.PC TR-83742 PR-3
F.R. U-1
O.M.B. No. 7100-0115
Approval expires April 30, 2005
BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM
STATEMENT OF PURPOSE FOR AN EXTENSION OF CREDIT SECURED BY MARGIN STOCK
(FEDERAL RESERVE FORM U-1)
KEYBANK NATIONAL ASSOCIATION
----------------------------
Name of Bank
This report is required by law (15 U.S.C. 78g and 78w; 12 CFR 221).
The Federal Reserve may not conduct or sponsor, and an organization (or a
person) is not required to respond to, a collection of information unless it
displays a currently valid OMB control number.
Public reporting burden for this collection of information is estimated to
average 10 minutes per response, including the time to gather and maintain data
in the required form and to review instructions and complete the information
collection. Send comments regarding this burden estimate, including suggestions
for reducing this burden, to Secretary, Board of Governors of the Federal
Reserve System, 20th and C Streets, N.W., Washington, D.C. 20551; and to the
Office of Management and Budget, Paperwork Reduction Project (7100-0115),
Washington, D.C. 20503.
INSTRUCTIONS
1. This form must be completed when a bank extends credit in excess of $100,000
secured directly or indirectly, in whole or in part, by any margin stock.
2. The term "margin stock" is defined in Regulation U (12 CFR 221) and includes,
principally: (1) stocks that are registered on a national securities exchange;
(2) debt securities (bonds) that are convertible into margin stocks; (3) any
over-the-counter security designated as qualified for trading in the National
Market System under a designation plan approved by the Securities and Exchange
Commission (NMS security); and (4) shares of most mutual funds, unless 95
percent of the assets of the fund are continuously invested in U.S. government,
agency, state, or municipal obligations.
3. Please print or type (if space is inadequate, attach separate sheet).
PART I To be completed by borrower(s)
1. What is the amount of the credit being extended? ____________________________
2. Will any part of this credit be used to purchase or carry margin stock?
[ ] Yes [ ] No
If the answer is "no", describe the specific purpose of the credit. ____________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
I (We) have read this form and certify that to the best of my (our) knowledge
and belief the information given is true, accurate, and complete, and that the
margin stock and any other securities collateralizing this credit are authentic,
genuine, unaltered, and not stolen, forged, or counterfeit.
Signed: Signed:
/s/ Gerald O. Hatler 4/1/05 /s/ William G. Filer II 4/1/05
_________________________________ ___________________________________
Borrower's Signature Date Borrower's Signature Date
Gerald O. Hatler William G. Filer II
_________________________________ ___________________________________
Print or Type Name Print or Type Name
This form should not be signed if blank.
A BORROWER WHO FALSELY CERTIFIES THE PURPOSE OF A CREDIT ON THIS FORM OR
OTHERWISE WILLFULLY OR INTENTIONALLY EVADES THE PROVISIONS OF REGULATION U WILL
ALSO VIOLATE FEDERAL RESERVE REGULATION X, "BORROWERS OF SECURITIES CREDIT."
F.R. U-1
PAGE 2 OF 2
PART II To be completed by bank only if the purpose of the credit is to purchase
or carry margin securities (Part I (2) answered "yes")
1. List the margin stock securing this credit; do not include debt securities
convertible into margin stock. The maximum loan value of margin stock is 50
percent of its current market value under the current Supplement to Regulation
U.
Date and source
No. of Market price of valuation Total market
shares Issue per share (See note below) value per issue
- ------ ----- ---------- ---------------- ---------------
2. List the debt securities convertible into margin stock securing this credit.
The maximum loan value of such debt securities is 50 percent of the current
market value under the current Supplement to Regulation U.
Date and source
Principal of valuation Total market
amount Issue Market price (See note below) value per issue
------ ----- ------------ ---------------- ---------------
3. List other collateral including nonmargin stock securing this credit.
Date and source
of valuation Good faith
Describe briefly Market price (See note below) loan value
- ---------------- ------------ ---------------- ----------
Note: Bank need not complete "Date and source of valuation" if the market value
was obtained from regularly published information in a journal of general
circulation or automated quotation system.
PART III To be signed by a bank officer in all instances
I am a duly authorized representative of the bank and understand that this
credit secured by margin stock may be subject to the credit restrictions of
Regulation U. I have read this form and any attachments, and I have accepted the
customer's statement in Part I in good faith as required by Regulation U*; and I
certify that to the best of my knowledge and belief, all the information given
is true, accurate, and complete. I also certify that if any securities that
directly secure the credit are not or will not be registered in the name of the
borrower or its nominee, I have or will cause to have examined the written
consent of the registered owner to pledge such securities. I further certify
that any securities that have been or will be physically delivered to the bank
in connection with this credit have been or will be examined, that all
validation procedures required by bank policy and the Securities Exchange Act of
1934 (section 17 (f), as amended) have been or will be performed, and that I am
satisfied to the best of my knowledge and belief that such securities are
genuine and not stolen or forged and their faces have not been altered.
Signed:
4/7/05 /s/ Cortland D. Rounds
__________________________________ _________________________________
Date Bank officer's signature
VP/RM Cortland D. Rounds
__________________________________ _________________________________
Title Print or type name
- ----------
* To accept the customer's statement in good faith, the officer of the bank must
be alert to the circumstances surrounding the credit and, if in possession of
any information that would cause a prudent person not to accept the statement
without inquiry, must have investigated and be satisfied that the statement is
truthful. Among the facts which would require such investigation are receipt of
the statement through the mail or from a third party.
THIS FORM MUST BE RETAINED BY THE LENDER FOR THREE YEARS AFTER THE CREDIT IS
EXTINGUISHED.
[BAR CODE]
*31311385163500000110010E80*
IRREVOCABLE STOCK OR BOND POWER OR ENTITLEMENT ORDER
FOR VALUE RECEIVED, the undersigned hereby sell, assign and transfer to ________
________________________________________________________________________________
Please insert Social Security
or Taxpayer I.D. Number [ ]
FOR STOCKS, COMPLETE THIS PORTION: ___________________ share(s) of the
_______________ stock of ___________________________________________
________________________________________________________________________________
represented by Certificate No. ____________________ ________________________,
standing in the name of the undersigned on the books of the Company.
FOR BONDS, COMPLETE THIS PORTION: ___________________________ bond(s) of
_____________________________________________________________ in the principal
amount of $____________________, No. ________________________________________,
standing in the name of the undersigned on the books of said Company.
FOR OTHER INVESTMENT COLLATERAL, COMPLETE THIS PORTION:
Account No. ___________, of ____________________________________________________
(NAME AND ADDRESS OF INTERMEDIARY OR ISSUER)
______________________, including all investment Collateral in the account and
free credit balances.
The undersigned hereby irrevocably constitute and appoint _____________________
attorney to transfer the above stock or bond or other investment Collateral, as
the case may be, on the books of said Company, with full power of substitution
in the premises.
DATED ________________________
SIGNATURE(S) GUARANTEED BY:
SIGNATURE _________________________ SIGNATURE ________________________
IMPORTANT - READ CAREFULLY
The signature(s) must correspond with the name(s) as written upon the face of
the certificate or bond in every particular without alteration or enlargement or
any change whatever, and must be guaranteed by a bank or registered securities
dealer.
================================================================================
LASER PRO Lending, Ver. 5.24.10.002 Copr. Harland Financial Solutions, Inc.
1997, 2005. All Rights Reserved - WA N:\Lpro\CFI\LPL\E80.PC TR-83742 PR-3
[BAR CODE]
*31311385163500000110010C10*
CORPORATE RESOLUTION TO BORROW / GRANT COLLATERAL
PRINCIPAL LOAN DATE MATURITY LOAN NO CALL/COLL ACCOUNT OFFICER
$ 5,000,000.00 01-26-2005 02-01-2006 11001 402/511 N3113851635 CDROD INITIALS
- -------------- ---------- ---------- -------- --------- ----------- ------- --------
References in the shaded area are for Lender's use only and do not limit the
applicability of this document to any particular loan or item. Any item above
containing "***" has been omitted due to text length limitations.
CORPORATION: EVERGREENBANCORP, INC. LENDER: KEYBANK NATIONAL ASSOCIATION
301 EASTLAKE AVENUE WA-CB-TACOMA CORRESPONDENT BANKING
EAST SEATTLE, WA 98109 1101 PACIFIC AVE.
1ST FLOOR
TACOMA, WA 98402
WE, THE UNDERSIGNED, DO HEREBY CERTIFY THAT:
THE CORPORATION'S EXISTENCE. The complete and correct name of the Corporation is
EvergreenBancorp, Inc. ("Corporation"). The Corporation is a corporation for
profit which is, and at all times shall be, duly organized, validly existing,
and in good standing under and by virtue of the laws of the State of Washington.
The Corporation has the full power and authority to own its properties and to
transact the business in which it is presently engaged or presently proposes to
engage. The Corporation maintains an office at 301 Eastlake Avenue East,
Seattle, WA 98109. Unless the Corporation has designated otherwise in writing,
the principal office is the office at which the Corporation keeps its books and
records. The Corporation will notify Lender prior to any change in the location
of The Corporation's state of organization or any change in The Corporation's
name. The Corporation shall do all things necessary to preserve and to keep in
full force and effect its existence, rights and privileges, and shall comply
with all regulations, rules, ordinances, statutes, orders and decrees of any
governmental or quasi-governmental authority or court applicable to the
Corporation and The Corporation's business activities.
RESOLUTIONS ADOPTED. At a meeting of the Directors of the Corporation, or if the
Corporation is a close corporation having no Board of Directors then at a
meeting of the Corporation's shareholders, duly called and held on JANUARY 26,
2005, at which a quorum was present and voting, or by other duly authorized
action in lieu of a meeting, the resolutions set forth in this Resolution were
adopted.
OFFICERS. The following named persons are officers of EvergreenBancorp, Inc.:
NAMES TITLES AUTHORIZED ACTUAL SIGNATURES
- ----- ------ ---------- -----------------
GERALD O. HATLER PRESIDENT Y X /s/ Gerald O. Hatler
_______________________________
WILLIAM G. FILER II CHIEF FINANCIAL OFFICER Y X /s/ William G. Filer II
_______________________________
ACTIONS AUTHORIZED. Any two (2) of the authorized persons listed above may enter
into any agreements of any nature with Lender, and those agreements will bind
the Corporation. Specifically, but without limitation, any two (2) of such
authorized persons are authorized, empowered, and directed to do the following
for and on behalf of the Corporation:
BORROW MONEY. To borrow, as a cosigner or otherwise, from time to time
from Lender, on such terms as may be agreed upon between the Corporation
and Lender, such sum or sums of money as in their judgment should be
borrowed, without limitation.
EXECUTE NOTES. To execute and deliver to Lender the promissory note or
notes, or other evidence of the Corporation's credit accommodations, on
Lender's forms, at such rates of interest and on such terms as may be
agreed upon, evidencing the sums of money so borrowed or any of the
Corporation's indebtedness to Lender, and also to execute and deliver to
Lender one or more renewals, extensions, modifications, refinancings,
consolidations, or substitutions for one or more of the notes, any portion
of the notes, or any other evidence of credit accommodations.
GRANT SECURITY. To mortgage, pledge, transfer, endorse, hypothecate, or
otherwise encumber and deliver to Lender any property now or hereafter
belonging to the Corporation or in which the Corporation now or hereafter
may have an interest, including without limitation all of the
Corporation's real property and all of the Corporation's personal property
(tangible or intangible), as security for the payment of any loans or
credit accommodations so obtained, any promissory notes so executed
(including any amendments to or modifications, renewals, and extensions of
such promissory notes), or any other or further indebtedness of the
Corporation to Lender at any time owing, however the same may be
evidenced. Such property may be mortgaged, pledged, transferred, endorsed,
hypothecated or encumbered at the time such loans are obtained or such
indebtedness is incurred, or at any other time or times, and may be either
in addition to or in lieu of any property theretofore mortgaged, pledged,
transferred, endorsed, hypothecated or encumbered.
EXECUTE SECURITY DOCUMENTS. To execute and deliver to Lender the forms of
mortgage, deed of trust, pledge agreement, hypothecation agreement, and
other security agreements and financing statements which Lender may
require and which shall evidence the terms and conditions under and
pursuant to which such liens and encumbrances, or any of them, are given;
and also to execute and deliver to Lender any other written instruments,
any chattel paper, or any other collateral, of any kind or nature, which
Lender may deem necessary or proper in connection with or pertaining to
the giving of the liens and encumbrances. Notwithstanding the foregoing,
any one of the above authorized persons may execute, deliver, or record
financing statements.
NEGOTIATE ITEMS. To draw, endorse, and discount with Lender all drafts,
trade acceptances, promissory notes, or other evidences of indebtedness
payable to or belonging to the Corporation or in which the Corporation may
have an interest, and either to receive cash for the same or to cause such
proceeds to be credited to the Corporation's account with Lender, or to
cause such other disposition of the proceeds derived therefrom as they may
deem advisable.
FURTHER ACTS. In the case of lines of credit, to designate additional or
alternate individuals as being authorized to request advances under such
lines, and in all cases, to do and perform such other acts and things, to
pay any and all fees and costs, and to execute and deliver such other
documents and agreements, INCLUDING AGREEMENTS WAIVING THE RIGHT TO A
TRIAL BY JURY, as the officers may in their discretion deem reasonably
necessary or proper in order to carry into effect the provisions of this
Resolution. The following persons currently are authorized to request
advances and authorize payments under the line of credit until Lender
receives from the Corporation, at Lender's address shown above, written
notice of revocation of their authority: GERALD O. HATLER, PRESIDENT OF
EVERGREENBANCORP, INC.; AND WILLIAM G. FILER II, CHIEF FINANCIAL OFFICER
OF EVERGREENBANCORP, INC.
CORPORATE RESOLUTION TO BORROW / GRANT COLLATERAL
LOAN NO: 11001 (CONTINUED) PAGE 2
ASSUMED BUSINESS NAMES. The Corporation has filed or recorded all documents or
filings required by law relating to all assumed business names used by the
Corporation. Excluding the name of the Corporation, the following is a complete
list of all assumed business names under which the Corporation does business:
NONE.
NOTICES TO LENDER. The Corporation will promptly notify Lender in writing at
Lender's address shown above (or such other addresses as Lender may designate
from time to time) prior to any (A) change in the Corporation's name; (B) change
in the Corporation's assumed business name(s); (C) change in the management of
the Corporation; (D) change in the authorized signer(s); (E) change in the
Corporation's principal office address; (F) change in the Corporation's state of
organization; (G) conversion of the Corporation to a new or different type of
business entity; or (H) change in any other aspect of the Corporation that
directly or indirectly relates to any agreements between the Corporation and
Lender. No change in the Corporation's name or state of organization will take
effect until after Lender has received notice.
CERTIFICATION CONCERNING OFFICERS AND RESOLUTIONS. The officers named above are
duly elected, appointed, or employed by or for the Corporation, as the case may
be, and occupy the positions set opposite their respective names. This
Resolution now stands of record on the books of the Corporation, is in full
force and effect, and has not been modified or revoked in any manner whatsoever.
NO CORPORATE SEAL. The Corporation has no corporate seal, and therefore, no seal
is affixed to this Resolution.
CONTINUING VALIDITY. Any and all acts authorized pursuant to this Resolution and
performed prior to the passage of this Resolution are hereby ratified and
approved. This Resolution shall be continuing, shall remain in full force and
effect and Lender may rely on it until written notice of its revocation shall
have been delivered to and received by Lender at Lender's address shown above
(or such addresses as Lender may designate from time to time). Any such notice
shall not affect any of the Corporation's agreements or commitments in effect at
the time notice is given.
IN TESTIMONY WHEREOF, WE HAVE HEREUNTO SET OUR HAND AND ATTEST THAT THE
SIGNATURES SET OPPOSITE THE NAMES LISTED ABOVE ARE THEIR GENUINE SIGNATURES.
WE EACH HAVE READ ALL THE PROVISIONS OF THIS RESOLUTION, AND WE EACH PERSONALLY
AND ON BEHALF OF THE CORPORATION CERTIFY THAT ALL STATEMENTS AND REPRESENTATIONS
MADE IN THIS RESOLUTION ARE TRUE AND CORRECT. THIS CORPORATE RESOLUTION TO
BORROW / GRANT COLLATERAL IS DATED JANUARY 26, 2005.
CERTIFIED TO AND ATTESTED BY:
BY: /s/ Denice M. Town
____________________________________________
AUTHORIZED SIGNER FOR EVERGREENBANCORP, INC.
BY: /s/ Stan W. McNaughton
____________________________________________
AUTHORIZED SIGNER FOR EVERGREENBANCORP, INC.
NOTE: If the officers signing this Resolution are designated by the foregoing
document as one of the officers authorized to act on the Corporation's behalf,
it is advisable to have this Resolution signed by at least one non-authorized
officer of the Corporation.
================================================================================
LASER PRO Lending, Ver. 5.24.10.002 Copr. Harland Financial Solutions, Inc.
1997, 2005. All Rights Reserved - WA N:\Lpro\CFI\LPL\C10.PC TR-83742 PR-3
NUMBER: __________
[BAR CODE]
*31311385163500000110010G50*
COLLATERAL RECEIPT
PRINCIPAL LOAN DATE MATURITY LOAN NO CALL/COLL ACCOUNT OFFICER
$5,000,000,00 01-26-2005 02-01-2006 11001 402/511 N3113851635 CDROD INITIALS
- ------------- ---------- ---------- ----- ------- ----------- ----- --------
References in the shaded area are for Lender's use only and do not limit the
applicability of this document to any particular loan or item. Any item above
containing "***" has been omitted due to text length limitations.
GRANTOR: EVERGREENBANCORP, INC. LENDER: KEYBANK NATIONAL ASSOCIATION
301 EASTLAKE AVENUE EAST WA-CB-TACOMA CORRESPONDENT BANKING
SEATTLE, WA 98109 1101 PACIFIC AVE.
1ST FLOOR
TACOMA, WA 98402
CUSTODY CONTROL
DESCRIPTION OF COLLATERAL SIGNATURES DATE RELEASED
------------------------- ---------- -------------
622,762 Shares of Evergreen Bank Stock, issued in the
name of EvergreenBancorp, Inc., issued on June 20,
2001, Cusip No. 300186103
INITIAL DELIVERY ACKNOWLEDGEMENTS: RETURN RECEIPT ACKNOWLEDGEMENT: INSTRUCTIONS FOR RETURNING COLLATERAL AND
DISPOSITION OF COUPONS:__________________
GRANTOR: /s/ Gerald O. Hatler GRANTOR ACKNOWLEDGES THE RECEIPT OF ALL
/s/ William G. Filer II COLLATERAL, INCLUDING ALL UNMATURED _________________________________________
________________________________ COUPONS, IF ANY.
(Grantor's Signature)
KEYBANK NATIONAL ASSOCIATION _________________________________________
BY: /s/ Cortland D. Rounds x
_____________________________________ _____________________________________ _________________________________________
(Authorized Officer) (Grantor's Signature)
================================================================================
LASER PRO Lending. Ver. 5.24.10.002 Copr. Harland Financial Solutions, Inc.
1997, 2005. All Rights Reserved. - WA N:\Lpro\CFI\LPL\G50.PC TR-83742 PR-3
[BAR CODE]
*31311385163500000110010I20*
DISBURSEMENT REQUEST AND AUTHORIZATION
PRINCIPAL LOAN DATE MATURITY LOAN NO CALL/COLL ACCOUNT OFFICER
$5,000,000.00 01-26-2005 02-01-2006 11001 402/511 N3113851635 CDROM INITIALS
- ------------- ---------- ---------- ----- ------- ----------- ----- --------
References in the shaded area are for Lender's use only and do not limit
the applicability of this document to any particular loan or item. Any
item above containing "***" has been omitted due to text length
limitations.
BORROWER: EVERGREENBANCORP, INC. LENDER: KEYBANK NATIONAL ASSOCIATION
301 EASTLAKE AVENUE EAST WA-CB-TACOMA CORRESPONDENT BANKING
SEATTLE, WA 98109 1101 PACIFIC AVE.
1ST FLOOR
TACOMA, WA 98402
LOAN TYPE. This is a Variable Rate Nondisclosable Revolving Line of Credit Loan
to a Corporation for $5,000,000.00 due on February 1, 2006. The reference rate
(Prime Rate announced by Lender, currently 5.250%) is added to the margin of
- -0.500%, resulting in an initial rate of 4.750.
PRIMARY PURPOSE OF LOAN. The primary purpose of this loan is for:
[ ] PERSONAL, FAMILY, OR HOUSEHOLD PURPOSES OR PERSONAL INVESTMENT.
[X] BUSINESS (INCLUDING REAL ESTATE INVESTMENT).
SPECIFIC PURPOSE. The specific purpose of this loan is: Working Capital.
DISBURSEMENT INSTRUCTIONS. Borrower understands that no loan proceeds will be
disbursed until all of Lender's conditions for making the loan have been
satisfied. Please disburse the loan proceeds of $5,000,000.00 as follows:
UNDISBURSED FUNDS: $5,000,000.00
-------------
NOTE PRINCIPAL: $5,000,000.00
CHARGES PAID IN CASH. Borrower has paid or will pay in cash as agreed the
following charges:
PREPAID FINANCE CHARGES PAID IN CASH: $ 0.00
OTHER CHARGES PAID IN CASH: $12,500.00
$12,500.00 LOAN ORIGINATION FEE
----------
TOTAL CHARGES PAID IN CASH: $12,500.00
FINANCIAL CONDITION. BY SIGNING THIS AUTHORIZATION, BORROWER REPRESENTS AND
WARRANTS TO LENDER THAT THE INFORMATION PROVIDED ABOVE IS TRUE AND CORRECT AND
THAT THERE HAS BEEN NO MATERIAL ADVERSE CHANGE IN BORROWER'S FINANCIAL CONDITION
AS DISCLOSED IN BORROWER'S MOST RECENT FINANCIAL STATEMENT TO LENDER. THIS
AUTHORIZATION IS DATED JANUARY 26, 2005.
BORROWER:
EVERGREENBANCORP, INC.
BY: /s/ Gerald O. Hatler BY: /s/ William G. Filer II
_____________________________ ____________________________________
GERALD O.HATLER, PRESIDENT OF WILLIAM G. FILER II, CHIEF FINANCIAL
EVERGREENBANCORP, INC. OFFICER OF EVERGREENBANCORP, INC.
================================================================================
LASER PRO Lending. Ver. 5.24.10.002 Copr. Harland Financial Solutions, Inc.
1997, 2005. All Rights Reserved. - WA N:\Lpro\CFI\LPL\I20.PC TR-83742 PR-3
COMMERCIAL TELEPHONE ADVANCE/PAYDOWN AUTHORIZATION FORM
PRINCIPAL LOAN DATE MATURITY LOAN NO CALL/COLL ACCOUNT OFFICER
$5,000,000.00 01-26-2005 02-01-2006 11001 402/511 N3113851635 CDROD INITIALS
- ------------- ---------- ---------- -------- --------- ----------- ------- --------
References in the shaded area are for Lender's use only and do not limit the
applicability of this document to any particular loan or item. Any item above
containing "***" has been omitted due to text length limitations.
BORROWER: EVERGREENBANCORP, INC. LENDER: KEYBANK NATIONAL ASSOCIATION
301 EASTLAKE AVENUE EAST WA-CB-TACOMA CORRESPONDENT BANKING
SEATTLE, WA 98109 1101 PACIFIC AVE.
1ST FLOOR
TACOMA, WA 98402
THIS COMMERCIAL TELEPHONE ADVANCE/PAYDOWN AUTHORIZATION FORM IS ATTACHED TO AND
BY THIS REFERENCE IS MADE A PART OF THE DISBURSEMENT REQUEST AND AUTHORIZATION,
DATED JANUARY 26, 2005, AND EXECUTED IN CONNECTION WITH A LOAN OR OTHER
FINANCIAL ACCOMMODATIONS BETWEEN KEYBANK NATIONAL ASSOCIATION AND
EVERGREENBANCORP, INC.
DATE: KEYCENTER/COMMERCIAL BANKING CENTER NAME:
BANK #: PREPARED BY: TELEPHONE #:
The undersigned Borrower ("Borrower") hereby authorizes KeyBank ("Bank") to
transfer funds between the accounts identified below pursuant to telephone
instructions from the Authorized Caller(s) listed below. Borrower warrants that
it is the owner of all checking accounts listed below and that all Authorized
Callers listed below are authorized to withdraw funds from such checking
accounts. Borrower agrees that it will be liable for all sums transferred
pursuant to this Authorization and that all transfers will also be subject to
the terms of the Promissory Note(s) evidencing the loan accounts referenced
below. Borrower agrees that Bank is not obligated to honor telephone
instructions made pursuant hereto if Borrower fails to maintain adequate funds
to cover requested transfers, and Bank shall not be liable for dishonor of
checks or other items due to insufficient funds caused by following the
instructions of Borrower hereunder. Borrower hereby releases the Bank from any
and all costs or damages which may arise out of any actions taken by Bank in
complying (or attempting to comply) with this authority until written
cancellation of this authority is received by the Bank.
Please select one of the choices for the Advance/Paydown authorization
information to reflect the following:
________Customer Declines Advance/Paydown Functionality
________Add ____Change ____Delete
_______________________________________ _______________________________________
Authorized Caller (please print or type) Authorized Caller (please print or type)
_______________________________________ ________________________________________
Authorized Caller (please print or type) Authorized Caller (please print or type)
_______________________________________ ________________________________________
Authorized Caller (please print or type) Authorized Caller (please print or type)
List of Accounts Authorized for Advance/Paydown Transactions:
Customer Number Loan Number Checking Account Number
_______________ ___________ _______________________
___________ _______________________
___________ _______________________
___________ _______________________
NEW LOANS
Return To Loan Services With Completed Loan Documents
EXISTING LOANS/CREDIT LINE APPLICATIONS
Please Fax Completed Form To Appropriate Region:
Northeast & Midwest - 800-539-2507
Rocky Mountain & Northwest - 800-574-0634.
COMMERCIAL TELEPHONE ADVANCE/PAYDOWN AUTHORIZATION FORM
LOAN NO: 11001 (CONTINUED) PAGE 2
THIS COMMERCIAL TELEPHONE ADVANCE/PAYDOWN AUTHORIZATION FORM IS EXECUTED ON
JANUARY 26, 2005.
BORROWER:
EVERGREENBANCORP, INC.
BY: /s/ Gerald O. Hatler
__________________________________________
GERALD O. HATLER, PRESIDENT OF
EVERGREENBANCORP, INC.
BY: /s/ William G. Filer II
________________________________________________
WILLIAM G. FILER II, CHIEF FINANCIAL OFFICER
OF EVERGREENBANCORP, INC.
================================================================================
LASER PRO Lending. Ver. 5.24.10.002 Copr. Harland Financial Solutions, Inc.
1997, 2005. All Rights Reserved. - WA N:\Lpro\CFI\LPL\I20.PC TR-83742 PR-3
[BAR CODE]
*31311385163500000110010I21*
NOTICE OF FINAL AGREEMENT
PRINCIPAL LOAN DATE MATURITY LOAN NO CALL/COLL ACCOUNT OFFICER
$5,000,000.00 01-269-2005 02-01-2006 11001 402/511 N3113851635 CDROD INITIALS
- ------------- ----------- ---------- ------- --------- ----------- ------- --------
References in the shaded area are for Lender's use only and do not limit the
applicability of this document to any particular loan or item. Any item above
containing "***" has been omitted due to text length limitations.
BORROWER: EVERGREENBANCORP, INC. LENDER: KEYBANK NATIONAL ASSOCIATION
301 EASTLAKE AVENUE EAST WA-CB-TACOMA CORRESPONDENT BANKING
SEATTLE, WA 98109 1101 PACIFIC AVE.
1ST FLOOR
TACOMA, WA 98402
ORAL AGREEMENTS OR ORAL COMMITMENTS TO LOAN MONEY, EXTEND CREDIT, OR TO FORBEAR
FROM ENFORCING REPAYMENT OF A DEBT ARE NOT ENFORCEABLE UNDER WASHINGTON LAW.
BY SIGNING THIS DOCUMENT EACH PARTY ACKNOWLEDGES RECEIPT OF THE ABOVE NOTICE. IN
ADDITION (AND NOT AS A LIMITATION ON THE LEGAL EFFECT OF THE NOTICE), BY SIGNING
THIS DOCUMENT EACH PARTY REPRESENTS AND AGREES THAT: (a) THE WRITTEN LOAN
AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES, (b) THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES, AND (c) THE WRITTEN LOAN
AGREEMENT MAY NOT BE CONTRADICTED BY EVIDENCE OF ANY PRIOR, CONTEMPORANEOUS, OR
SUBSEQUENT ORAL AGREEMENTS OR UNDERSTANDINGS OF THE PARTIES.
AS USED IN THIS NOTICE, THE FOLLOWING TERMS HAVE THE FOLLOWING MEANINGS:
LOAN. The term "Loan" means the following described loan: a Variable Rate
Nondisclosable Revolving Line of Credit Loan to a Corporation for
$5,000,000.00 due on February 1, 2006.
LOAN AGREEMENT. The term "Loan Agreement" means one or more promises,
promissory notes, agreements, undertakings, security agreements, deeds of
trust or other documents, or commitments, or any combination of those
actions or documents, relating to the Loan.
PARTIES. The term "Parties" means KeyBank National Association and any and
all entities or individuals who are obligated to repay the loan or have
pledged property as security for the Loan, including without limitation
the following:
BORROWER: EVERGREENBANCORP, INC.
GRANTOR(S): EVERGREENBANCORP, INC.
EACH PARTY WHO SIGNS BELOW, OTHER THAN KEYBANK NATIONAL ASSOCIATION,
ACKNOWLEDGES, REPRESENTS, AND WARRANTS TO KEYBANK NATIONAL ASSOCIATION THAT IT
HAS RECEIVED, READ AND UNDERSTOOD THIS NOTICE OF FINAL AGREEMENT. THIS NOTICE IS
DATED JANUARY 26, 2005.
BORROWER:
EVERGREENBANCORP, INC.
BY: /s/ Gerald O. Hatler BY: /s/ William G. Filer II
________________________________ ____________________________________
GERALD O. HATLER, PRESIDENT OF WILLIAM G. FILER II, CHIEF FINANCIAL
EVERGREENBANCORP, INC. OFFICER OF EVERGREENBANCORP, INC.
LENDER:
KEYBANK NATIONAL ASSOCIATION
X /s/ Cortland D. Rounds
____________________________________________________
AUTHORIZED SIGNER
================================================================================
LASER PRO Lending, Ver. 5.24.10.002 Copr. Harland Financial Solutions, Inc.
1997, 2005. All Rights Reserved - WA N:\Lpro\CFI\LPL\I21.PC TR-83742 PR-3
[BAR CODE]
*31311385163500000110010I21*
NOTICE OF FINAL AGREEMENT
PRINCIPAL LOAN DATE MATURITY LOAN NO CALL/COLL ACCOUNT OFFICER
$5,000,000.00 01-26-2005 02-01-2006 11001 402/511 N3113851635 CDROD INITIALS
- ------------- ---------- ---------- ----- ------- ----------- ------- --------
References in the shaded area are for Lender's use only and do not limit the
applicability of this document to any particular loan or item. Any item above
containing "***" has been omitted due to text length limitations.
BORROWER: EVERGREENBANCORP, INC. LENDER: KEYBANK NATIONAL ASSOCIATION
3\01 EASTLAKE AVENUE EAST WA-CB-TACOMA CORRESPONDENT BANKING
SEATTLE, WA 98109 1101 PACIFIC AVE.
1ST FLOOR
TACOMA, WA 98402
ORAL AGREEMENTS OR ORAL COMMITMENTS TO LOAN MONEY, EXTEND CREDIT, OR TO FORBEAR
FROM ENFORCING REPAYMENT OF A DEBT ARE NOT ENFORCEABLE UNDER WASHINGTON LAW.
BY SIGNING THIS DOCUMENT EACH PARTY ACKNOWLEDGES RECEIPT OF THE ABOVE NOTICE. IN
ADDITION (AND NOT AS A LIMITATION ON THE LEGAL EFFECT OF THE NOTICE), BY SIGNING
THIS DOCUMENT EACH PARTY REPRESENTS AND AGREES THAT: (a) THE WRITTEN LOAN
AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES, (b) THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES, AND (c) THE WRITTEN LOAN
AGREEMENT MAY NOT BE CONTRADICTED BY EVIDENCE OF ANY PRIOR, CONTEMPORANEOUS, OR
SUBSEQUENT ORAL AGREEMENTS OR UNDERSTANDINGS OF THE PARTIES.
AS USED IN THIS NOTICE, THE FOLLOWING TERMS HAVE THE FOLLOWING MEANINGS:
LOAN. The term "Loan" means the following described loan: a Variable Rate
Nondisclosable Revolving Line of Credit Loan to a Corporation for
$5,000,000.00 due on February 1, 2006.
LOAN AGREEMENT. The term "Loan Agreement" means one or more promises,
promissory notes, agreements, undertakings, security agreements, deeds of
trust or other documents, or commitments, or any combination of those
actions or documents, relating to the Loan.
PARTIES. The term "Parties" means KeyBank National Association and any and
all entities or individuals who are obligated to repay the loan or have
pledged property as security for the Loan, including without limitation
the following:
BORROWER: EVERGREENBANCORP, INC.
GRANTOR(S): EVERGREENBANCORP, INC.
EACH PARTY WHO SIGNS BELOW, OTHER THAN KEYBANK NATIONAL ASSOCIATION,
ACKNOWLEDGES, REPRESENTS, AND WARRANTS TO KEYBANK NATIONAL ASSOCIATION THAT IT
HAS RECEIVED, READ AND UNDERSTOOD THIS NOTICE OF FINAL AGREEMENT. THIS NOTICE IS
DATED JANUARY 26, 2005.
BORROWER:
EVERGREENBANCORP, INC.
BY: /s/ Gerald O. Hatler BY: /s/ William G. Filer II
______________________________ ____________________________________
GERALD O. HATLER, PRESIDENT OF WILLIAM G. FILER II, CHIEF FINANCIAL
EVERGREENBANCORP, INC. OFFICER OF EVERGREENBANCORP, INC.
LENDER:
KEYBANK NATIONAL ASSOCIATION
X /s/ Cortland D. Rounds
_____________________________________________________
AUTHORIZED SIGNER
================================================================================
LASER PRO Lending, Ver. 5.24.10.002 Copr. Harland Financial Solutions, Inc.
1997, 2005. All Rights Reserved - WA N:\Lpro\CFI\LPL\I21.PC TR-83742 PR-3
FIRST MODIFICATION
OF
BUSINESS LOAN AGREEMENT
This First Modification of Business Loan Agreement ("Agreement") is made
as of January 26, 2005, by and between KeyBank National Association ("Lender")
and EvergreenBancorp, Inc. ("Borrower").
RECITALS
A. Borrower executed or will execute a promissory note made by Borrower in
favor of Lender in the original principal amount of $5,000,000.00 ("Note") and a
Business Loan Agreement ("Loan Agreement"), both dated January 26, 2005. All
terms not defined herein shall have the meanings given them in the Loan
Agreement.
B. In consideration for Lender's agreement to make the Loan, Borrower has
agreed to comply with certain financial covenants and ratios.
C. Borrower and Lender, therefore, agree to evidence Borrower's agreement
to comply with such financial covenants and ratios through this Agreement and to
modify the Loan Agreement as set forth below.
AGREEMENT
1. FINANCIAL COVENANTS AND RATIOS. Page 2 of the Loan Agreement shall be
modified to include a new Section entitled "Financial Covenants and Ratios,"
which shall read as follows:
FINANCIAL COVENANTS AND RATIOS. Borrower shall comply with the following
covenants and ratios:
RISK BASED CAPITAL - BORROWER AND BANK. Borrower shall maintain, and shall
further cause Evergreen Bank ("Bank") to maintain, Tier 1 Risk Based
Capital at a sufficient level to meet the definition of "Well Capitalized"
under the Tier 1 Capital Maintenance Regulations applicable to Borrower
and Bank that have been adopted by the appropriate federal bank agency
having authority over Borrower and Bank. "Well Capitalized" and "Tier 1
Risk Based Capital" shall have definitions given them under the FDIC
Capital Management Regulations, 12 CFR 325.1 et seq., as now in force or
hereafter amended.
LOAN LOSS RESERVE TO TOTAL NON-PERFORMING LOANS RATIO - BORROWER AND BANK.
Borrower shall maintain, and shall further cause Bank to maintain, a ratio
of Loan Loss Reserve to Total Non-Performing Loans of not less than 1.10,
measured annually. "Loan Loss Reserve" shall mean valuation allowances on
mortgage loans plus valuation allowances on non-mortgage loans, and "Total
Non-Performing Loans" shall mean the total of all loans past due ninety
(90) days or more and still accruing plus total non-accrual loans.
- 1 -
RETURN ON AVERAGE ASSETS - BORROWER AND BANK. Borrower shall maintain, and
shall further cause Bank to maintain, a ratio of Return on Average Assets
of not less than .50%, measured annually. "Return on Average Assets" shall
mean the income (loss) before extraordinary items and effects of
accounting changes divided by the average total assets.
TERM DEFINITIONS. Terms not otherwise defined in this Section 1 shall have
the meanings customarily given them by the appropriate governmental
agencies having authority over Borrower and its subsidiaries, including
without limitation, Bank.
2. FINANCIAL STATEMENTS. The subsection entitled "Financial Covenants" on
page 2 of the Loan Agreement shall be modified to include the following:
"CALL REPORTS. No later than forty five (45) days after the end of each
fiscal year, Borrower shall provide to Lender, and shall further cause
Bank to provide to Lender, their respective quarterly call reports in a
form satisfactory to Lender."
3. NOTICE OF ORAL AGREEMENTS. Page 6 of the Loan Agreement shall be
modified to include the following notice immediately before the signature
blocks:
NOTICE CONCERNING ORAL AGREEMENTS
ORAL AGREEMENTS OR ORAL COMMITMENTS TO LEND
MONEY, EXTEND CREDIT OR TO FORBEAR FROM
ENFORCING REPAYMENT OF A DEBT ARE NOT
ENFORCEABLE UNDER WASHINGTON LAW.
4. NO ADDITIONAL AGREEMENTS. Borrower understands and agrees that Lender
has only agreed to make this Agreement according to the terms provided herein
and further acknowledges that Lender has made no agreement or other
representations except as set forth herein.
5. LEGAL COUNSEL. Borrower hereby acknowledges that Lender and Lender's
counsel have not been requested to give any legal advice to Borrower with regard
to the matters set forth herein, and have not undertaken to do so.
6. REPRESENTATIONS AND WARRANTIES. To induce Lender to enter into this
Agreement, Borrower hereby makes the following representations and warranties,
which shall survive the termination of the Agreement indefinitely.
6.1 AUTHORITY, ETC. Borrower has the proper authority to enter into
and perform this Agreement.
6.2 VALID AND BINDING. This Agreement constitutes, or, if not yet
executed or delivered, shall when so executed and delivered, constitute the
valid and binding obligation of Borrower enforceable in accordance with its
terms.
- 2 -
7. MISCELLANEOUS:
7.1 EFFECTIVE DATE. This Agreement shall become effective only when
Lender and Borrower properly execute it.
7.2 BENEFIT. This Agreement shall bind and inure to the benefit of
Lender, Borrower, and their respective successors and assigns.
7.3 LEGAL ACTION. If any legal action or appeal is instituted by any
party to this Agreement to enforce any of the provisions hereof, or any party
shall retain an attorney to protect its rights hereunder, including in any
action in bankruptcy, the prevailing party or parties shall be entitled to
judgment against the other party or parties for all reasonable costs and
expenses, including attorneys' fees, incurred by the prevailing party in
connection with such action, appeal or bankruptcy.
7.4 SEVERABILITY. If any term or provision in this Agreement shall
be adjudicated to be illegal, invalid or unenforceable, in whole or in part, it
will be deemed deleted to that extent, and all other terms and provisions of
this Agreement will remain in full force and effect.
7.5 APPLICABLE LAW; VENUE. This Agreement and the rights and
obligations created hereunder and in the documents referenced herein shall be
construed under Washington law and the venue of any action in connection with
this Agreement shall be in Pierce County, Washington.
7.6 FULL FORCE. The parties agree that except as modified by the
above, all Related Documents and other agreements between Lender and Borrower
shall remain in full force and effect.
NOTICE CONCERNING ORAL AGREEMENTS
ORAL AGREEMENTS OR ORAL COMMITMENTS TO LEND
MONEY, EXTEND CREDIT OR TO FORBEAR FROM
ENFORCING REPAYMENT OF A DEBT ARE NOT
ENFORCEABLE UNDER WASHINGTON LAW.
BORROWER: LENDER:
EVERGREENBANCORP, INC. KEYBANK NATIONAL ASSOCIATION
By: /s/ Gerald O. Hatler By: /s/ Cortland D. Rounds
------------------------------ -----------------------------------
Gerald O. Hatler Cortland Rounds
President Vice President/Correspondent Banking
Dated: 4/1/5 Dated: 4/7/5
--------------------------- --------------------------------
- 3 -
BY: /s/ William G. Filer II
------------------------------
William G. Filer II
Chief Financial Officer
DATED: 4/1/05
---------------------------
- 4 -