exhibit10-1.htm


    Exhibit 10.1

    
      

    

    
      


      
        


         

        SEVENTH
          MODIFICATION AGREEMENT AND COVENANT
          WAIVER

         

        This
          Seventh Modification Agreement and Covenant
          Waiver (this “Agreement”) is
          made
          as of November 12,
          2008 but effective November 28,
          2008 (the “Effective
          Date”), by and between VINEYARD NATIONAL BANCORP, a California
          corporation (“Borrower”) and
          FIRST
          TENNESSEE BANK NATIONAL ASSOCIATION (“Lender”).  Unless
          otherwise set forth herein, all capitalized terms used herein shall have
          the
          meaning given such terms in the Loan Documents (defined below).

        


                   
          WHEREAS, in connection with a loan from Lender to Borrower in the original
          principal amount of $70,000,000.00, with a current outstanding principal
          loan
          balance of $48,300,000.00 (the “Loan”), the
          Borrower
          executed and delivered to Lender that certain Amended and Restated Promissory
          Note (“Note”)
          dated March 29, 2007, that certain Loan Agreement (“Loan Agreement”),
          that certain  Pledge Agreement together with Addendum to Pledge
          Agreement (collectively the “Pledge”), each
          dated
          as of March 17, 2006, that certain Modification Agreement effective as
          of May
          11, 2006 (“First
          Modification”), that certain Second Modification Agreement and Covenant
          Waiver effective as of March 29, 2007 (“Second
          Modification”), that certain Third Modification Agreement and Covenant
          Waiver effective as of March 15, 2008 (“Third Modification”),
          that certain Fourth Modification Agreement and Covenant Waiver effective
          as of
          June 30, 2008 (“Fourth
          Modification”), that certain Fifth Modification Agreement and Covenant
          Waiver dated and effective as of August 29, 2008 (“Fifth
          Modification”), that certain
          Amendment to Fifth Modification Agreement and Covenant Waiver effective
          as of
          September 23, 2008 (“Amendment to
          Fifth
          Modification”)
          and that certain Sixth Modification Agreement and
          Covenant Waiver effective as of October 28, 2008 (“Sixth
          Modification”)
          (this Agreement, the Note, the Loan Agreement, the Pledge, the First
          Modification, the Second Modification, the Third Modification, the Fourth
          Modification, the Fifth Modification,  Amendment to Fifth Modification,
          the Sixth
          Modification and any other documents executed by Borrower in connection
          with the
          Loan (but expressly excluding the Letter Agreement, defined below) are
          collectively herein referred to as the “Loan
          Documents”);

        


                   
          WHEREAS, Borrower desires to extend the maturity date of the Loan through
          March
          31, 2009;

        


                   
          WHEREAS, Borrower has requested that Lender extend the Waivers (as defined
          in
          the Fifth Modification and Amendment to Fifth Modification) through and
          including March 31, 2009 (“Existing
          Waivers”);

        


                   
          WHEREAS, Borrower has requested that Lender grant
          an additional waiver of the Loan Agreement as more particularly set forth
          on
          Exhibit A attached hereto and incorporated herein by reference (the “Additional
          Waiver”;
          the Existing Waivers and Additional Waiver are
          collectively referred to as the “Waivers”);

        


        WHEREAS,
          in connection with this
          Agreement, Borrower, Lender and Vineyard Bancshares, Inc. (the “Buyer”) are
          entering
          into a certain letter agreement, dated the date hereof (the “Letter Agreement”),
          pursuant to which Lender has agreed, subject to the terms and conditions
          set
          forth therein, to accept certain payments from Buyer in full satisfaction
          of the
          obligations owing under the Loan Documents;

         

        
          
            
            

          

          
            1

            
              

            

          

          
            
            

          

        

         

        WHEREAS,
subject
          to the terms and conditions
          contained herein, Lender is willing to (i) extend the Maturity Date of
          the Loan
          and (ii) grant and extend the
          Waivers.

        


                   
          NOW, THEREFORE, FOR MUTUAL CONSIDERATIONS, the receipt and sufficiency
          of which
          is hereby acknowledged, the undersigned Borrower and Lender do hereby modify
          the
          Loan Documents as follows:

        


        1) Capitalized
          Terms.  Any capitalized term used but not defined herein shall
          have the meaning ascribed to it in the Loan Documents.  All references
          to the “Loan Documents” in the Loan Agreement and any of the other Loan
          Documents shall include, without limitation, this Agreement and all other
          such
          Loan Documents, as modified by this Agreement.

         

        2) Extension
          of Maturity Date;
          Waiver. Subject to Borrower’s compliance with all representations,
          warranties, covenants and agreements contained in this Agreement and all
          the
          other Loan Documents as modified hereby:

         

        (a) Maturity
          Date.  The “Maturity Date” set forth in the Loan Agreement and
          elsewhere in the Loan Documents is hereby modified to mean March 31,
          2009 (the “New
          Maturity Date”).

         

        (b) Waivers.  Lender
          hereby extends the Waivers for a period through and including the New Maturity
          Date.

         

        3) Modification
          of the
          Note.  The Note and, where applicable, the other Loan Documents
          are hereby modified as follows:

         

        a. Interest
          Rate.  From and after November 28, 2008 through and including
          the New
          Maturity Date, interest shall accrue on the outstanding principal balance
          of the
          Note at a fixed annual rate equal to the LIBOR Rate, as hereinafter defined,
          plus three hundred fifty (350) basis points (LIBOR Rate + 3.50%). As used
          herein, the term “LIBOR Rate” refers to the sixty (60) day London Interbank
          Offered Rate, as determined by Lender in its sole (but reasonable)
          discretion.  The LIBOR Rate shall be determined by Lender as of November 28, 2008 (or, if such date is not
          a
          business day, then on the next preceding business day).  Interest
          shall be calculated on the basis of a 360 day year and the actual number
          of
          calendar days elapsed.  Notwithstanding anything else in this
          instrument to the contrary, in no event shall the maximum rate of interest
          payable in respect to the indebtedness evidenced hereby exceed the maximum
          rate
          of interest allowed to be charged by applicable law.

         

        b. Payment
          Schedule.  Said principal and accrued interest thereon shall be
          due and payable as hereinafter set forth:

         

        On
          the New Maturity Date the entire outstanding principal balance of the Loan,
          any
          accrued and unpaid interest thereon, and all incurred fees shall be due
          and
          payable without demand.

         

        c. No
          New
          Advances.  Borrower may not reborrow any sums repaid under the
          Loan, and Lender has no obligation to advance any new loan proceeds under
          the
          Loan.

         

        
          
            
            

          

          
            2

            
              

            

          

          
            
            

          

        

         

        4) Conditions
          of Extension of
          Maturity Date; Waiver.  Lender’s agreement to extend the
          Maturity Date and Waivers is conditioned upon and subject to the timely
          satisfaction by Borrower of each of the following conditions (collectively
          the
“Conditions of
          Modification”):

         

        a. Correctness
          and
          Warranties.  Except as expressly modified or waived herein, all
          representations and warranties made by Borrower to Lender under this Agreement
          and the other Loan Documents (including without limitation all of Borrower’s
          representations and warranties set forth in Sections 3.5 and 3.9 of the
          Loan
          Agreement) are and shall remain true and correct through and including
          the New
          Maturity Date and payment in full of the Loan.

         

        b. No
          Defaults
          Hereunder.  Borrower shall not breach any promise or covenant
          contained in this Agreement and shall not be in default under any provision
          of
          this Agreement or the other Loan Documents (except with respect to the
          Waivers,
          as waived hereby).

         

        5) Termination
          Events.  Each of the following shall constitute a Termination
          Event and an Event of Default under this Agreement and all other Loan Documents
          without any further cure or grace period, notwithstanding anything to the
          contrary in the Loan Documents (each, a “Termination
          Event”):

         

        a. Conditions
          of Modification;
          Compliance.  If Borrower shall fail to comply in a timely
          manner with any of the Conditions of Modification set forth above.

         

        b. Bankruptcy.  If
          Borrower shall become a debtor in bankruptcy by means of either a voluntary
          or
          involuntary petition.

         

        c. Receivership;
          Insolvency.  If any kind of receivership or insolvency
          proceeding is commenced by or against Borrower.

         

        6) New
          Maturity Date;
          Acceleration of Loan.  Borrower agrees that the Loan
          automatically, and without notice, shall be immediately all due and payable
          in
          full upon the earlier of:

         

        a. 
          New Maturity Date; or

         

        b. 
          The occurrence of any Termination Event, as defined above.

         

                   
          The entire amount of the Loan, including all accrued and unpaid interest,
          shall
          be immediately due and payable upon the earlier to occur of the New Maturity
          Date or the occurrence of any Termination Event, and Lender shall be entitled
          immediately to exercise all of its rights and remedies under the Loan Documents,
          all without further notice to Borrower; provided, however, that in no event
          shall the occurrence of a Termination Event under Section 5.b. or 5.c.
          above
          affect the rights and obligations of Borrower and Lender under the Letter
          Agreement.

         

        7) Representations,
          Warranties
          and Covenants.  As an inducement to Lender to enter into this
          Agreement, Borrower makes the following representations, warranties and
          covenants:

         

        
          
            
            

          

          
            3

            
              

            

          

          
            
            

          

        

         

        a. Enforceability.  The
          Loan, this Agreement, and all the other Loan Documents are fully enforceable,
          and the Loan is not subject to any defense or counterclaim or any claim
          of
          setoff or recoupment by Borrower.

         

        b. Representation
          by
          Counsel.  Borrower has been represented by, or advised to
          consult with, counsel in connection with the negotiation and execution
          of this
          Agreement; this Agreement represents an arms-length transaction; and Borrower
          has acted in good faith in the making of this Agreement.

         

        c. Consents.  The
          execution and performance of this Agreement by Borrower does not and will
          not
          violate any agreement to which Borrower is a party, and the execution and
          performance of this Agreement by Borrower does not require the consent
          of any
          third party, or if the consent of a third party is required, such consent
          has
          been previously obtained by Borrower.

         

        d. Sale
          of
          Assets.  Through and including the New Maturity Date, Borrower
          will not dispose of any of its property outside the ordinary course of
          business
          or as otherwise provided for in this Agreement or the Letter
          Agreement.

         

        e. New
          Debt.  Through and including the New Maturity Date, Borrower
          will not incur any additional debt except for unsecured trade debt incurred
          in
          the ordinary course of business without the prior written consent of Lender
          in
          its sole and absolute discretion.

         

        f. Impairment.  Borrower
          will take no action which would impair its ability to perform its obligations
          hereunder or to satisfy any of the Conditions of Modification.

         

        g. Extension
          Fee.  Promptly after with Borrower’s execution hereof, Borrower
          shall pay Lender’s attorneys fees in connection herewith.

         

        8) Further
          Assurances.  At any time and from time to time after the date
          of this Agreement, at the request of Lender, Borrower shall, without further
          consideration, and at Borrower’s sole expense, execute and deliver such
          documents and instruments, and take such actions, as Lender may deem necessary
          (a) to perfect any of Lender’s security interests or liens granted in any of the
          Loan Documents, and/or (b) to carry out the purposes and intentions of
          this
          Agreement and the Loan Documents.

         

        9) Effectiveness
          of the
          Loan.  This Agreement shall not constitute a novation of any of
          the other Loan Documents, and all the Loan Documents shall survive the
          execution
          of this Agreement and remain in full force and effect subject only to the
          Waivers as set forth herein and to any express modifications thereto as
          herein
          provided.  The lien and security interest on the Collateral granted
          pursuant to the Pledge is hereby extended, and the lien and security interest
          on
          the Collateral shall continue to secure the remaining amounts outstanding
          in
          respect of all indebtedness that may be due and owing pursuant to the terms
          of
          the Loan Documents, including without limitation principal and interest
          on all
          amounts loaned pursuant to the Note.  There are no oral
          representations or assurances from Lender to Borrower which survive the
          execution of this Agreement.

         

        
          
            
            

          

          
            4

            
              

            

          

          
            
            

          

        

         

        10) Release
          and
          Waiver.  Borrower hereby acknowledges and stipulates that it
          has no claims or causes of action of any kind whatsoever against
          Lender.  Borrower represents that it is entering into this Agreement
          freely, and with the advice of counsel as to its legal
          alternatives.  Borrower hereby releases Lender from any and all
          claims, causes of action, demands and liabilities of any kind whatsoever
          whether
          direct or indirect, fixed or contingent, liquidated or unliquidated, disputed
          or
          undisputed, known or unknown, which Borrower has or may acquire in the
          future
          relating in any way to any event, circumstance, action or failure to act
          to the
          date of this Agreement.  The release by Borrower herein, together with
          the other terms and provisions of this Agreement, is executed by Borrower
          advisedly and without coercion or duress from Lender, Borrower having determined
          that the execution of this Agreement, and all its terms and provisions
          are in
          Borrower’s economic best interest.

         

        11) No
          Obligation to Extend; No
          Waiver.  Borrower acknowledges and agrees that Lender is not
          obligated and does not agree to any additional extensions of the New Maturity
          Date or any further Waivers except as expressly set forth
          herein.  Except as expressly provided herein as to the New Maturity
          Date and the Waivers, (i) this Agreement shall not constitute a waiver
          by Lender
          of any defaults under the Loan Documents, (ii) Lender reserves all of its
          rights
          and remedies under the other Loan Documents, and (iii) all of the Loan
          Documents
          are in all respects confirmed, ratified and approved and are in full force
          and
          affect as of the date hereof.  No action or course of dealing on the
          part of Lender, its officers, employees, consultants, or agents, nor any
          failure
          or delay by Lender with respect to exercising any right, power or privilege
          of
          Lender under the Loan Documents or this Agreement, shall operate as a waiver
          thereof, except to the extent expressly provided herein.

         

        12) Costs
          and
          Expenses.  Borrower agrees to pay on demand all out-of-pocket
          costs and expenses of Lender, including the fees and out-of-pocket expenses
          of
          counsel for Lender, in connection with the administration, enforcement,
          or
          protection of Lender’s rights under this Agreement and/or the Note and other
          Loan Documents.

         

        13) Governing
          Law.  This Agreement shall be governed by and construed in
          accordance with the laws of the State of Tennessee.

         

        14) Amendments.  This
          Agreement cannot be amended, rescinded, supplemented or modified except
          in
          writings signed by the parties hereto.

         

        15) Entire
          Agreement.  Subject to Section 9 above, this Agreement,
          together with the Letter Agreement, contains the entire agreement of the
          parties
          and supersedes any other discussions or agreements relating to the subject
          of
          this Agreement.

         

        16) Time
          of the
          Essence.                                                      
TIME IS OF THE ESSENCE OF THIS AGREEMENT.

         

        17) Counterpart
          Signature
          Pages.  This Agreement may be executed in one or more
          counterparts and may be delivered by facsimile or electronic mail, each
          of which
          shall be deemed an original and all of which together shall constitute
          one and
          the same instrument.

         

        [Signatures
          on Following Page]

         

        
          
            
            

          

          
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        COUNTERPART
          SIGNATURE PAGE TO

        SEVENTH
          MODIFICATION AGREEMENT AND COVENANT
          WAIVER

        


        IN
          WITNESS WHEREOF, the parties have executed this Agreement as of the date
          first
          above written.

        


                                                                                   
          BORROWER:

        


        VINEYARD
          NATIONAL
          BANCORP,

        a
          California corporation

        


                                                                                   
          By: /s/
          Glen
          C. Terry

        


                                                                                   
          Name: Glen C.
          Terry__

        


                                                                                   
          Title: President and Chief Executive Officer

        STATE
          OF CALIFORNIA

        COUNTY
          OF RIVERSIDE

        


                   
          Before me, Elizabeth A. Reyes, Notary Public of the state and county
          aforesaid, personally appeared Glen C. Terry, with whom I am personally
          acquainted (or proved to me on the basis of satisfactory evidence), and
          who,
          upon oath, acknowledged himself to be President and Chief Executive Officer
          (or
          other officer authorized to execute the instrument) of VINEYARD NATIONAL BANCORP, a
          California corporation, the within named bargainor, and that he as such
          President and Chief Executive Officer, executed the foregoing instrument
          for the
          purpose therein contained, by signing the name of the corporation by himself
          as
          President and Chief Executive Officer.

        


                   
          WITNESS MY HAND, at office, this 12th day of November, 2008.

        


        


                                                                                   
          _/s/ Elizabeth
          A.
          Reyes_____________________________

                                                                                   
          Notary Public

        


        My
          Commission Expires:

        


        __January
          24,
          2010____________________________

         

        
          
            
            

          

          
            
            

            
              

            

          

          
            
            

          

        

        


        COUNTERPART
          SIGNATURE PAGE TO

        SEVENTH
          MODIFICATION AGREEMENT AND COVENANT
          WAIVER

        


                   
          IN WITNESS WHEREOF, the parties have executed this Agreement as of the
          date
          first above written.

        


        


                                                                        
          LENDER:

        


                                                                        
          FIRST TENNESSEE BANK
          NATIONALASSOCIATION, a national
          banking association

        


                                                                        
          By:    /s/
          David S. Work_                                                                
          

                                                                        
          Name:     David S.
          Work                                           


        


                                                                        
          Title:        Executive Vice
          President

        


        STATE
          OF TENNESSEE

        COUNTY
          OF SHELBY

        


                   
          Before me, G. Porter Robinson, Notary Public of the state and county aforesaid,
          personally appeared David S. Work, with whom I am personally acquainted
          (or
          proved to me on the basis of satisfactory evidence), and who, upon oath,
          acknowledged himself to be Executive Vice President (or other officer authorized
          to execute the instrument) of First Tennessee Bank National Association,
          a
          national banking association, the within named bargainor, and that he as
          such
          Executive Vice President, executed the foregoing instrument for the purpose
          therein contained, by signing the name of the national banking association
          by
          himself as Executive Vice President.

        


                   
          WITNESS MY HAND, at office, this 13th day of November, 2008.

        


        


                                                                                   
          __/s/ G.
          Porter
          Robinson____________________________

                                                                                   
          Notary Public

        


        My
          Commission Expires:

        


        __April
          28,
          2009________________________

        


        
          
            
            

          

          
            
            

            
              

            

          

          
            
            

          

        

         

        EXHIBIT
          A

         

        ADDITIONAL
          WAIVER

         

         

        Borrower
          has disclosed to and has requested from Lender the Additional Waiver regarding
          Borrower’s
potential
noncompliance
          with Sections 5.5 and5.7
          of the Loan Agreement as a result
          of Borrower entering into that certain Stock Purchase Agreement dated November
          12, 2008
          in which Borrower proposes to sell
          its shares of common stock of Vineyard Bank, National Association to Vineyard
          Bancshares, Inc.