Exhibit 10(h)


 


REVOLVING LINE OF CREDIT PROMISSORY NOTE AND SECURITY
AGREEMENT (UNSECURED)


 


	
  Borrower:

  	
  Frederick County
  Bancorp, Inc.

  	
  Lender:

  	
  Atlantic Central
  Bankers Bank

  
	
   

  	
  P.O. Box 1100

  	
   

  	
  1400 Market Street

  
	
   

  	
  Frederick, MD 21702

  	
   

  	
  P.O. Box 1109

  
	
   

  	
   

  	
   

  	
  Camp Hill, PA
  17001-1109

  
	
   

  	
   

  	
   

  	
   

  
	
  PRINCIPAL
  AMOUNT:  $4,000,000.00

  	
  DATE OF NOTE:
  July 22, 2009

  



 


PROMISE TO PAY. 
For value received, Frederick County Bancorp, Inc. (“Borrower”), a
Maryland corporation organized as the holding company of Frederick County Bank
(the “Bank”), hereby agrees to pay to Atlantic Central Bankers Bank, a state
banking institution chartered in the Commonwealth of Pennsylvania, (“Lender”)
the sum of Four Million and No/100 Dollars ($4,000,000.00), or so much of the
principal as may be outstanding, together with interest on the outstanding
principal balance of each advance made by Lender under this Revolving Line of
Credit Promissory Note and Security Agreement (Unsecured) (“Note”) at the rate
set forth in this Note from the date of each advance by Lender under this Note
until the principal balance of each advance under this Note is paid in full.


 


1.               INTEREST. The
interest rate on the principal of this Note is subject to change from time to
time based on changes in the Index set forth in this Note. The interest rate on
the Loan mayo r may not be the lowest rate available at any given time by
Lender to its customers. Borrower understands that Lender may make other
similar loans to other customers at interest rates different than the interest
rate provided for in this Note. The interest rate is a variable interest rate
equal to the sum of: New York Wall Street Journal Prime Rate (the “Index”) plus
one half of one percent (0.50%), subject to a floor of four and one-quarter of
one percent (4.25%). Under no circumstances will the interest rate on this Note
exceed the maximum interest permitted under the laws of the Commonwealth of
Pennsylvania. The interest rate will be computed on a year consisting of 360
days with interest charged and billed based on the actual number of days
elapsed.  Under no circumstances will the
interest rate on the Note exceed the maximum interest permitted under the laws
of the Commonwealth of Pennsylvania.


 


2.               PAYMENT. Borrower
will pay this Loan in one payment of all outstanding principal plus all accrued
unpaid interest on July 22, 2010. In addition, Borrower will pay regular
monthly payments of all accrued unpaid interest due as of each payment date,
beginning September 1, 2009, with all subsequent interest payments to be
due on the same day of each month thereafter. Unless otherwise agreed or
required by applicable law, payments will be applied first to accrued unpaid
interest, then to principal and any remaining amount to any unpaid collection
costs and 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.


 


3.               PREPAYMENT PENALTY.
Borrower may at any time prepay any part or the entire principal due under this
Note without any premium or penalty. Any prepayments shall first be applied to
interest, late charges and costs, if any, and then to principal.


 


4.   LATE CHARGE. If any payment to be made under
this Note, including any balloon payment, is fifteen (15) or more days late, a
late charge will be automatically assessed on the sixteenth day. The late
charge will be the greater of $25.00 or 5% of the payment not made.


 


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5.  REPRESENTATIONS AND WARRANTIES. Borrower
represents and warrants to the best of its knowledge, information and belief as
follows:


 


5.1 Judgments. There are
no judgments, injunction or similar order or decrees outstanding against
Borrower and there are no claims, actions, suits or proceedings pending or, to
the knowledge of Borrower, threatened against or affecting Borrower or its
properties which, if determined adversary to Borrower, could result in any
material adverse change in Borrower’s financial condition, property or ability
to perform its obligations under this Note and other agreements, and Borrower
is not, to its knowledge, in violation of or default under any judgment, order,
writ, injunction, decree, rule or regulation of any court or governmental
agency.


 


5.2 Financial Statements.
The Borrower will furnish to Lender


 


a.                                       as soon as available, but in any event
not later than 90 days after the close of each fiscal year of the Borrower, the
annual audit report of the Borrower containing a consolidated balance sheet of
the Borrower and its Subsidiaries as of the end of such fiscal year and related
consolidated statements of income, cash flow, and changes in shareholders’
equity of the Borrower and its Subsidiaries for such fiscal year, all in
reasonable detail, prepared in accordance with GAAP applied on a consistent
basis, and certified without exception or qualification by independent
certified public accountants selected by the Borrower and satisfactory to
Lender;


 


b.                                      as soon as
available, but in any event not later than 30 days after the close of each
quarter of each fiscal year of the Borrower, a consolidated balance sheet of
the Borrower and its Subsidiaries as at the end of such quarterly period and
related consolidated statement of income for such quarterly period and for the
period from the beginning of the current fiscal year to the end of such
quarterly period, prepared in accordance with GAAP applied on a consistent
basis (excluding disclosures in footnotes), and certified by the principal
financial or accounting officer of the Borrower (subject to normal year-end
adjustments);


 


c.                                       concurrently
with the delivery of the financial statements referred to in clause (a) above,
a certificate of the officer who certified such statements, setting forth the
Bank’s (i) total risk-based capital ratio, (ii) Tier 1 risk-based
capital ratio, and (iii) Tier 1 leverage ratio, computed in accordance
with the regulations and policies of the Federal Reserve; and


 


d.                                      from time to
time, such additional financial and other information as Lender may reasonably
request.


 


5.3
Capital. The Borrower will cause the Bank at all times to be “well capitalized’’
as determined in accordance with the regulations of the Federal Reserve. The
Borrower will also cause the Bank to (i) have total risk-based capital of
at least 10% at all times, (ii) to have a Tier 1 risk-based capital ratio
of at least 6.0% at all times, and (iii) to have a Tier 1 leverage ratio
of at least 5.0% at all times


 


5.4
Notice of Regulatory Action. The Borrower shall promptly notify the Lender of
any action or proposed action taken by any federal or state bank regulatory
agency with respect to the Borrower, the Bank or any of its directors or
officers, including without limitation any cease and desist order, civil
monetary penalty, memorandum of understanding, or consent agreement.


 


6.
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 to five percentage points (5%)
over the Index. The interest rate will not exceed the maximum rate permitted by
applicable law. If judgment is entered in connection with this Note, interest
will continue to accrue on this Note after judgment at the interest rate
applicable to this Note at the time judgment is entered.


 


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7.
DEFAULT. A default under this Note shall be defined to include one, several or
all of the following (“Events of Default”):


 


7.1 Payment Default. If
the Borrower fails to make any payment of principal and/or interest when due
under this Note.


 


7.2 Enforcement
Action. The Borrower, the Bank or any of its directors or officers shall have
agreed to, entered into or become subject to any cease or desist order, or
memorandum of understanding with any federal or state bank regulatory authority
having jurisdiction with respect to the Bank or the Borrower, including without
limitation the Federal Deposit Insurance Corporation, with respect to the
financial condition or operations of the Bank or the Borrower.


 


7.3
Other Defaults. If the Borrower fails to: (a) comply with or to perform
any other term, obligation, covenant, commitment or condition contained in this
Note or in any documents executed by Borrower in connection with this Note or
in connection with the Loan evidenced by this Note; or (b) fails to comply
with or perform any term, obligation, covenant, commitment or condition
contained in any other agreement between Borrower and Lender.


 


7.4 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.


 


7.5 False Statements. If
any warranty, representation or statement made, furnished or extended by
Borrower, or on behalf of Borrower, to Lender set forth in this Note or in any
documents executed by and/or delivered by Borrower to Lender in connection with
this Note or in connection with the Loan evidenced by this Note: (a) is
untrue, false and/or misleading in any material respect at the time the
warranty, representation or statement is made; or (b) subsequently becomes
untrue, false and/or misleading in any material respect.


 


7.6 Death or Insolvency.
If the Borrower is an individual: (a) the death of the Borrower or (b) the
filing by or against Borrower of any federal bankruptcy proceeding. If the
Borrower is a general, limited or limited liability partnership, a corporation
or a limited liability company: (a) the dissolution, whether voluntary or
involuntary, of Borrower, (b) the cessation of Borrower’s business, (c) the
appointment of a receiver for Borrower or any of Borrower’s assets, (d) the
assignment by Borrower of Borrower’s assets for the benefit of creditors, (e) the
filing of any dissolution, whether voluntary or involuntary, receivership,
winding up or liquidation proceedings by or against Borrower and/or (f) the
filing by or against Borrower of any federal and/or state insolvency and/or
bankruptcy proceeding.


 


7.7 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.


 


7.8 Events Affecting
Guarantor. Intentionally omitted.


 


7.9 Change in Ownership.
Any change in ownership interest of twenty-five percent (25%) or more of the
common stock of Borrower.


 


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7.10 Adverse Change. If
there is a material adverse change in the financial condition of Borrower of
this Note or a change in the value and/or condition of any assets of borrower
pledged to Lender to secure this Note, which in the sole discretion of Lender,
Lender determines to reasonably impair the prospect of payment in full of this
Note.


 


7.11 Loan to Value &
Margin Requirement. Intentionally omitted.


 


7.12 Insecurity. Lender
in good faith believes itself insecure.


 


7.13
Entry of Judgment. Entry of any judgment against Borrower and a determination
by Lender that the same, when taken together with all other judgments
outstanding against Borrower, could result in any material adverse change in
Borrower’s financial condition, property or ability to pay and perform its
obligations to Lender, unless such judgment shall have been discharged or
execution thereof stay within thirty (30) days after entry thereof or
discharged within thirty (30) days after the expiration of any such stay.


 


8.
CONFESSION OF JUDGMENT. Intentionally omitted.


 


9.
LENDERS RIGHTS. Upon a default, and without the need for Lender to issue any
notice to or demand upon Borrower, except as may be required by law: (1) the
entire amount of unpaid principal and all accrued and unpaid interest, as well
as all late charges and costs, if any, shall be immediately due and payable in
full, thus abrogating any amortization provisions set forth in Paragraph 2 of
this Note; (2) the interest rate on the unpaid principal shall be
automatically increased by 3.00 percentage points above the interest rate in
effect on the date of default; and (3) Lender may exercise any and all
rights and remedies available to Lender under the statutes and Rules of
Civil Procedure of the Commonwealth of Pennsylvania and as provided for in this
Note. All remedies available to Lender are cumulative. Lender is under no
obligation to proceed first against any collateral described in Paragraph 10 of
this Note prior to proceeding against Borrower or any assets of Borrower not
pledged by Lender.


 


10.
RIGHT OF SET OFF. Borrower grants to Lender a contractual security interest in,
and hereby assigns, conveys, delivers, pledges and transfers to Lender all of
Borrower’s right, title and interest in and to all of Borrower’s present and
future accounts, funds and assets of Borrower in possession of Lender, except
any trust accounts or funds or assets which Lender holds as a fiduciary, to
secure this Note. Borrower hereby authorizes and empowers Lender, to the extent
permitted by law and by this Note, to charge or setoff all sums owing on this
Note against any and all such accounts, funds and assets, and, at Lender’s
option, to administratively freeze all such accounts to allow Lender to protect
Lender’s charge and setoff rights provided for in this paragraph.


 


11.
CROSS DEFAULT. A default under this Note is a default under all present and
future obligations, agreements, instruments and commitments of Borrower to
Lender.


 


12.
COLLATERAL. Intentionally omitted.


 


13.
CROSS COLLATERAL. Intentionally omitted.


 


14.
LOAN TO VALUE RATIO. Intentionally omitted.


 


15.
INTEREST RATE ON JUDGMENT. The interest rate on any judgment entered on this
Note by confession or otherwise shall be the default rate as defined in
Paragraph 6 provided for in the Note, which is in effect as of the date of
judgment.


 


16.
JURISDICTION AND VENUE. Borrower acknowledges that this Note was executed and
delivered to Lender and accepted by Lender at Lender’s office in Camp Hill,
Pennsylvania. If there is a lawsuit arising directly or indirectly out of or
based directly or indirectly on this Note or the Loan by Lender to Borrower
evidenced by this Note, Borrower agrees that the exclusive and sole
jurisdiction and venue for any lawsuit involving Borrower, whether as plaintiff
or defendant, shall reside either in the Court of Common Pleas of Cumberland
County, Pennsylvania or the United States District Court for the Middle
District of Pennsylvania. This Note shall be construed and interpreted under
the laws of the Commonwealth of Pennsylvania.


 


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17.
WAIVER OF JURY TRIAL. Borrower knowingly and intelligently waives any trial by
jury with regards to any lawsuit arising directly or indirectly out of or based
directly or indirectly on this Note or the Loan by Lender to Borrower evidenced
by this Note, whether the lawsuit involves Borrower as a defendant or
plaintiff.


 


18.
COUNSEL FEES AND COSTS. Borrower agrees to pay upon demand all of Lender’s
costs and expenses, including attorneys’ fees and Lender’s legal expenses,
incurred in connection with the enforcement of this Note and all documents
executed by Borrower in connection with the Loan evidenced by this Note. Lender
may pay someone else to help enforce this Note and all documents and
instruments executed by Borrower in connection with the Loan evidenced by this
Note 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, and attorneys’ fees and legal expenses for any
bankruptcy proceedings (including efforts to modify or vacate any automatic
stay or injunction), appeals, and any anticipated post-judgment or post-appeal
collection services. Borrower also shall pay all court costs and such additional
fees as may be directed by the court.


 


19.
DISHONORED ITEM FEE. Borrower will pay a fee to Lender of $30.00 if Borrower
makes a payment on Borrower’s loan and the check or preauthorized charge with
which Borrower pays is later dishonored.


 


20.
NATURE OF LOAN. The obligation evidenced by this Note does not represent or
evidence a “consumer credit transaction” as that term is defined in Rule 2950
of Pennsylvania Rules of Civil Procedure but rather a business lending
transaction.


 


21.
WAIVERS. Borrower hereby waives all notices with regards to this Note,
including but not limited to presentment, demand for payment, protest, notice
of dishonor and/or any notices relating to commercial paper under Article 3
of the Uniform Commercial Code, as enacted in the Commonwealth of Pennsylvania.
Additionally, Borrower waives any and all notices required under Article 8
and/or Article 9 of the Uniform Commercial Code with regards to the
collateral described in Paragraph 12 hereof, and/or disposition of the
collateral described in Paragraph 12 hereof. Borrower hereby waives the
equitable and legal doctrines of election of remedies and marshalling of
assets.


 


22.
MISCELLANEOUS PROVISIONS. The failure of Lender to enforce any right under this
Note or under any documents executed by Borrower in connection with the Loan
evidenced by this Note shall not be deemed a waiver of Lender’s right under
this Note or otherwise. Caption headings in this Note are for convenience
purposes only and are not to be used to interpret or define the provisions of
this Note and do not constitute any part of the terms of this Note. This Note
shall be binding upon the heirs, successors, personal representatives and
assigns of Borrower. This Note shall inure to the benefit of Lender and its
successors and assigns. In the event anyone or more of the provisions contained
in this Note shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision of this Note, but the Note shall be
construed as if such invalid, illegal or unenforceable provision had never been
contained therein. This Note shall be governed by, construed, interpreted and
enforced according to the laws of the Commonwealth of Pennsylvania.


 


23. STOCK POWER.
Intentionally omitted.


 


24. LINE OF CREDIT.  This Note evidences a revolving line of
credit.  Advances under this Note, as
well as, directions for payment from Borrower’s accounts, must be requested in
writing by Borrower or by an authorized person. 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 printouts. 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


 


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provided pursuant to this Note for purposes other than
those authorized by Lender; or (e) Lender in good faith believes itself
insecure.


 


PRIOR TO
SIGNING THIS NOTE, EACH BORROWER HAS READ AND UNDERSTOOD ALL OF THE PROVISIONS
OF THIS NOTE. EACH BORROWER ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THIS
NOTE. THIS NOTE IS EXECUTED UNDER SEAL AND IT IS INTENDED THAT THIS NOTE IS AND
SHALL CONSTITUTE AND HAVE THE EFFECT OF A SEALED INSTRUMENT ACCORDING TO LAW.


 


	
  BORROWER

  	
   

  
	
   

  	
   

  
	
  Frederick County
  Bancorp, Inc.

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ William R.
  Talley, Jr.

  	
   

  
	
   

  	
   

  
	
  Name: William R.
  Talley, Jr.

  	
   

  
	
  Title:
  EVP and CFO

  	
   

  
			



 


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