EX-10.1 PURCHASE AND LOAN AGREEMENT






Exhibit 10.1




SUBORDINATED CAPITAL NOTE

SERIES 2008-1

NOTE PURCHASE/LOAN AGREEMENT




dated as of August 5, 2008




between




PINNACLE NATIONAL BANK,

as Issuer/Borrower




and




SUNTRUST BANK

as Purchaser/Lender





 









 








     THIS SUBORDINATED CAPITAL NOTE PURCHASE/LOAN AGREEMENT (this “Agreement”) is made as
of August 5, 2008, by and between Pinnacle National Bank, a national banking association (the
“Company” or the “Borrower”), as the issuer of the Subordinated Capital Notes
Series 2008-1 (the “Notes”) and the borrower thereunder, and SUNTRUST BANK, a Georgia
banking corporation, as the purchaser of, and lender under, the Notes (“SunTrust” or the
“Lender”).



W I T N E S S E T H:




          The Company has requested SunTrust, and SunTrust has agreed, subject to the terms and
conditions of this Agreement, and in reliance upon the representations, warranties and covenants of
the Company herein, and in the Notes and the other Transaction Documents to purchase the Notes and
thereby lend the Company $15,000,000, which the Company will treat as Tier 2 capital for bank
regulatory purposes.




          In consideration of the premises, the mutual agreements contained in this Agreement and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by
each party, the parties, intending to be legally bound, agree as follows:




ARTICLE I




DEFINITIONS; CONSTRUCTION




          Section 1.1 Definitions. The following terms have the definitions shown below:




          “BHC Act” means the federal Bank Holding Company Act of 1956, as amended, and any successor
thereto.




          “Borrower Parent” means Pinnacle Financial Partners, Inc., a Tennessee corporation and any
successor thereto, and any other Person that is a “company” that “controls” the Issuer for purposes
of the BHC Act.




          “Call Report” means, with respect to the Borrower, the “Consolidated Reports of Condition and
Income” (FFIEC Form 031 or 041 or any successor form of the Federal Financial Institutions
Examination Council).




          “Closing” means the closing of the transactions contemplated herein and in the Notes.




          “Closing Date” means the date on which the conditions precedent set forth in Section
3.1 have been satisfied or waived in accordance with Section 9.2, and which, unless
otherwise indicated, shall be the date of this Agreement.




          “Federal Reserve Reports” shall mean the “Consolidated Financial Statements for Bank Holding
Companies-FR Y-9C”, the “Parent Company Only Financial Statements for Large Bank Holding
Companies-FR Y-9LP”, or any successors thereto, and other reports required to be filed with the
Federal Reserve by the Borrower Parent.




 









 








          “FDIC” means the Federal Deposit Insurance Corporation and any successor thereto.




          “Transaction
Documents” mean this Agreement, the Notes, and any and all other instruments, agreements, documents and writings delivered at Closing
in connection with any of the foregoing.




          “Material Adverse Effect” means any event, action, omission or condition that (i) has had or
is reasonably likely to have a material adverse effect on the condition (financial or otherwise),
earnings, cash flows, business or prospects of the Company and whether or not arising in the
ordinary course of business, (ii) has had or is reasonably likely to have a material adverse effect
on the Notes, the rights of Holders of the Notes or the consummation or performance of the
Transactions, (iii) would limit or prevent the Notes from being included and recognized by all
applicable Governmental Authorities as Tier 2 capital for all purposes to the fullest extent
provided by the last sentence of Section 2(b)(4) of Appendix A to 12 CFR Part 3, (iv) questions the
validity or enforceability of any Transaction Document, or (v) seeks to restrain, enjoin, limit or
prohibit the execution, delivery or performance of any of the Transactions Documents or any of the
Transactions.




          “Maturity Date” means September 30, 2015, unless the maturity of the Notes is accelerated in
accordance with the terms of the Notes to an earlier date.




          Section 1.2 Terms Generally. All capitalized terms used in the Notes, and the
Interpretative Provisions of Exhibit 1 to the Notes are incorporated herein by reference in
full and shall apply to this Agreement.




ARTICLE II




AMOUNT AND TERMS OF THE SUBORDINATED TERM LOAN




          Section 2.1 Subordinated Term Loan and Subordinated Notes. Subject to the terms and
conditions set forth herein, the Lender agrees to purchase the Subordinated Capital Notes from the
Borrower on the Closing Date and thereby extend to the Borrower a loan in the principal amount of
FIFTEEN MILLION DOLLARS AND NO/100 ($15,000,000.00).




          Section 2.2 Terms of Notes. The terms of the Notes are hereby incorporated by
reference into this Agreement in full.




ARTICLE III




REPRESENTATIONS AND WARRANTIES




          The Borrower and the Borrower Parent jointly and severally represents and warrants to the
SunTrust as follows:




          Section 3.1 Organization; Authority. The Company is a national banking association
duly organized, validly existing and in good standing under the laws of its




-3 -









 







jurisdiction of organization, and has the full corporate power and authority to own, lease and
operate its properties, to own its Subsidiaries, to issue the Notes, to conduct its business as
presently conducted and as described in the Borrower Parent’s latest SEC Reports on Forms 10-K and
10-Q, and to enter into and perform its obligations under this Agreement, the Notes and the other
Transaction Documents. The Borrower Parent is a bank holding company, and it has been duly
approved by and is registered with, the Federal Reserve as a bank holding company under the BHC
Act, and with all other federal or state regulatory authorities that require registration or
Approval of the Borrower Parent as a holding company (“Other Banking Approvals”) owning or
controlling its Subsidiaries. The Company has all necessary authorizations, approvals,
registrations, qualifications, orders, licenses, certificates, decrees, consents and permits
(collectively, “Approvals”) needed to conduct its business, to own its Subsidiaries, to
issue the Notes, to conduct its business as presently conducted to enter into and perform its
obligations under this Agreement and the other Transaction Documents, and to include the full
amount of such Notes as Tier 2 capital for all regulatory purposes to the fullest extent provided
by the last sentence of Section 2(b)(4) of Appendix A to 12 CFR Part 3, except to the extent that
the failure to obtain any such Approval has not had and is not reasonably likely to have a Material
Adverse Effect. The Company has duly authorized and outstanding capital stock as set forth in the
information provided to SunTrust, all of its outstanding shares of capital stock (“Company
Shares”) have been duly authorized and validly issued and are fully paid and non assessable
(except to the extent that shares may be assessable under applicable federal or state banking
Laws), and none of the outstanding Company Shares was issued in violation of any preemptive or
similar rights of any shareholder of the Company. The Company is duly qualified to transact
business as a foreign corporation and is in good standing in each jurisdiction where it owns or
leases property or transacts business, and where such qualification is necessary, except to the
extent that the failure to so qualify or to be in good standing has not had and is not reasonably
likely to have a Material Adverse Effect.




          Section 3.2 No Conflicts. The execution, delivery and performance of the Transaction
Documents to which each Issuer is a party, and the consummation of the Transactions




          (a) do not require any consent or Approval under, do not and will not conflict with,
constitute a breach of, or a default or an event, which with notice, lapse of time or both would be
a default under, an event or condition that gives any person the right to require the repurchase,
redemption or repayment of all or a portion of any note, debenture or other indebtedness of the
Issuer or the Company (each a “Repayment Event”)




          (b) will not result in the creation or imposition of any Lien upon any property or assets of
the Company or any of its Subsidiaries, under any contract, indenture, mortgage, loan agreement,
note, lease or other agreement or instrument (“Contract”) to which the Company or any of
its Subsidiaries is a party or by which it or any of them may be bound, or to which any of the
property or assets of any of them is subject, except for a conflict, breach, default or Lien which
does not have and is not reasonably likely to have, individually or in the aggregate, a Material
Adverse Effect, nor will any such action result in any violation of any applicable Law or Approval,
except for those violations which, individually or in the aggregate are not reasonably expected to
have a Material Adverse Effect.




-4 -









 








          Section 3.3 Financial Statements.




          (a) The audited consolidated financial statements, including the notes and schedules thereto,
of the Borrower Parent, as of and for the last full three years (the “Annual Financial
Statements”) and the interim unaudited consolidated financial statements of the Borrower
Parent, as of and for the latest interim periods and the corresponding interim periods of the
immediately preceding year, (the “Interim Financial Statements”, and collectively with the
Annual Financial Statements, the “Financial Statements”) provided to SunTrust have been
prepared in accordance with GAAP. The Borrower Parent’s Financial Statements conform to the
requirements of the 1934 Act and all applicable United States Securities and Exchange Commission
(“Commission”) rules and regulations. All Financial Statements of the Company and the
Borrower Parent fairly present in all material respects the consolidated financial condition,
earnings, cash flows and changes in shareholders’ equity as of the dates and for the periods
therein specified, subject, in the case of Interim Financial Statements, only to normal recurring
year-end audit adjustments that are not material, and each has been certified as required by
applicable Law.




          (b) The Company’s most recent principal and quarterly Call Reports, and any subsequent reports
have been provided to the Lender, and the information therein fairly presents in all material
respects the financial position and results of operation of the Company and its Subsidiaries, and
the Borrower Parent and its Subsidiaries, respectively, as of such date and for such periods.




          (c) All of the Borrower Parent’s Federal Reserve Reports, including those on Federal Reserve
Forms FRY-9 C and FRY-9LP and the various schedules and subreports thereunder, for the last full
year and any subsequent interim periods, conform in all material respects to the Federal Reserve’s
requirements for such reports, and all of the Issuer’s Call Reports submitted to its primary
federal regulators conform in all material respects to the Federal Financial Institutions
Examination Council’s (“FFIEC”) requirements for Call Reports, and all such Federal Reserve
Reports and Call Reports are accurate and complete in all material respects and fairly present in
all material respects the reporting entity’s financial condition, earnings, cash flows (to the
extent a statement of cash flows is included pursuant to the requirements of such form) and changes
in shareholders’ equity as of the dates and for the periods shown are not inconsistent with the
Financial Statements and the Interim Financial Statements as of and for the corresponding dates and
periods.




          (d) Since the respective dates as of which information is included in the most recent
Financial Statements, Interim Financial Statements, Federal Reserve Reports and Call Reports, and
except as specifically disclosed in Schedule A attached hereto, there has not been (i) any
event, action, omission or condition that has had a Material Adverse Effect, (ii) any transactions
entered into by the Issuer, other than in the ordinary course of business, that are material to the
Issuer, (iii) except for regular quarterly cash dividends on the Company’s common stock in the
ordinary course of business and dividends paid by any Subsidiary to the Company, including
increases, consistent with past practice, any dividend or distribution of any kind declared, paid
or made by the Company on its capital stock, nor (iv) any other event, action, omission or
condition that is reasonably likely to have a Material Adverse Effect.




-5 -









 








          Section 3.4 Litigation Matters. There is no litigation, investigation or proceeding
of or before any arbitrators or Governmental Authorities pending, or, to the knowledge of the
Borrower, threatened against or affecting the Company or any of its Subsidiaries (i) as to which
there is a reasonable possibility of an adverse determination that could reasonably be expected to
have, either individually or in the aggregate, a Material Adverse Effect.




          Section 3.5 Compliance with Laws and Agreements. Each of the Company and each of its
Subsidiaries and the Borrower Parent is in compliance with all applicable Laws, and all commitments
to, all applicable Governmental Authorities, and all Approvals, except for those violations of
which, individually or in the aggregate, would not have a Material Adverse Effect.




          Section 3.6 Regulatory Enforcement Matters. None of the Company, the Borrower Parent
or any of their respective Subsidiaries, nor any of their respective officers, directors, employees
or representatives, is subject or is party to, or has received any written notice from any
Governmental Authority that any of them is or expected to be a subject of or party to any
investigation with respect to, any cease-and-desist order, agreement, civil monetary penalty, bar
or suspension from the securities investment or banking businesses, consent agreement, memorandum
of understanding or other regulatory enforcement action, proceeding or order with or by, or is a
party to any commitment letter or similar undertaking to, or is subject to any directive by, or has
been a recipient of any supervisory letter from, or has adopted any board resolutions at the
request or suggestion of, any Governmental Authority that, in any such case, currently restricts in
any material respect the conduct of their business or that in any material manner relates to their
capital adequacy, the payment of or any restriction upon, the payment of dividends, distributions
or payments (other than as imposed by Law, generally), their credit policies, their management or
their business (each, a “Regulatory Action”), nor has the Company or any of its
Subsidiaries or the Borrower Parent been advised by any Governmental Authority that it is
considering issuing or requesting any such Regulatory Action; and there is no unresolved violation,
criticism or exception by any Governmental Authority with respect to any report or statement
relating to any examinations of the Company or any of its Subsidiaries (including the Borrower),
except where such unresolved violation, criticism or exception would not, singly or in the
aggregate, have a Material Adverse Effect.




          Section 3.7 Investment Company Act. Neither the Borrower nor the Borrower Parent is
an “investment company”, as defined in, or subject to registration or regulation under, the
Investment Company Act of 1940, as amended.




          Section 3.8 Taxes. Each of the Company, the Borrower Parent and their respective
Subsidiaries has filed all federal, state, local and foreign tax returns that are required to be
filed or has duly requested extensions thereof and has paid all taxes required to be paid by any of
them and any related assessments, fines or penalties, except for any such tax, assessment, fine or
penalty that is being contested in good faith and by appropriate proceedings; and adequate charges,
accruals and reserves have been provided for in the Financial Statements or Interim Financial
Statements in respect of all federal, state, local and foreign taxes, including for all periods and
amounts as to which the tax liability of the Company, the Borrower Parent or their respective
Subsidiaries is being contested, has not been finally determined or remains open to




-6 -









 







examination by applicable taxing authorities and where such taxes have not become due and
payable.




          PNFP
Properties, Inc. (“PNFP”), an indirect subsidiary of the Company, is organized and
operated in conformance with the requirements for qualification as a real estate investment trust
(“REIT”) under Sections 856 through 860 of the Internal Revenue Code of 1986, as amended (the
“Code”), and the current and proposed method of operation of the Company and its
subsidiaries will enable PNFP to meet the requirements for taxation as a REIT under the Code.
There is no dispute, assessment, investigation, claim, or proceeding pending, or to the Company’s
or the Borrower Parent’s knowledge, threatened, questioning the status, or tax returns, payment or
amounts of payments of taxes by PNFP, as a REIT for any federal, state or local tax purpose.




          Section 3.9 Disclosure. The Company has disclosed to the Lender all agreements,
instruments, and corporate or other restrictions to which the Company, the Borrower Parent or any
of the Borrower Parent’s Subsidiaries is subject or bound , and all other matters known to any of
them, that, individually or in the aggregate, could reasonably be expected to result in a Material
Adverse Effect. None of the Call Reports, Federal Reserve Reports or any reports that the Borrower
Parent is required to file with the Commission), financial statements, certificates or other
information furnished by or on behalf of the Borrower to the Lender in connection with the
negotiation of this Agreement or any other Transaction Document or delivered hereunder or
thereunder (as modified or supplemented by any other information so furnished or filed) contains
any material misstatement of fact or omits to state any material fact necessary to make the
statements therein, taken as a whole, in light of the circumstances under which they were made, not
misleading.




          Section 3.10 Capital. On the Closing Date, each of the Borrower and the Borrower
Parent, and each depository institution Subsidiary of the Borrower Parent, is “well-capitalized”
for all bank regulatory purposes.




          Section 3.11 FDIC Insurance. The deposits of the Borrower are insured by the FDIC to
the fullest extent permitted by Law, and no proceedings for the termination of such insurance are
pending or, to the knowledge of the Borrower, threatened.




          Section 3.12 OFAC. None of the Company or the Borrower Parent, nor any of their
respective Subsidiaries (i) is a person whose property or interest in property is blocked or
subject to blocking pursuant to Section 1 of Executive Order 13224 of September 23, 2001 “Blocking
Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support
Terrorism” (66 Fed. Reg. 49079 (2001)), (ii) engages in any dealings or transactions prohibited by
Section 2 of such executive order, or is otherwise associated with any such person in any manner
violative of Section 2 or (iii) is a person on the list of Specially Designated Nationals and
Blocked Persons or subject to the limitations or prohibitions under any other U.S. Department of
Treasury’s Office of Foreign Assets Control regulation or executive order.




          Section 3.13 Patriot Act, Etc. Each of the Company, the Borrower Parent and their
respective Subsidiaries is in compliance, in all material respects, with (i) the Trading with




-7 -









 







the Enemy Act, as amended, and each of the foreign assets control regulations of the United
States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) and any other enabling
legislation or executive order relating thereto and (ii) the Uniting And Strengthening America By
Providing Appropriate Tools Required To Intercept And Obstruct Terrorism (USA Patriot Act of 2001).
No part of the proceeds of the Notes will be used, directly or indirectly, for any payments to any
governmental official or employee, political party, official of a political party, candidate for
political office, or anyone else acting in an official capacity, in order to obtain, retain or
direct business or obtain any improper advantage, in violation of the United States Foreign Corrupt
Practices Act of 1977, as amended.




          Section 3.14 Certificates. No filing with, or Approval of, any Governmental
Authority, other than those that have been made or obtained and which remain in full force and
effect, is necessary or required for the execution delivery and performance of the Transaction
Documents by the Company in connection with the issuance and sale of the Notes or the consummation
of the Transactions. The Company has given any required written notice to the applicable
Governmental Authorities having jurisdiction over the Issuer and the Transactions of its intent to
engage in the Transactions, and no applicable Governmental Authority has expressed any objection to
the Offering or the qualification of the Notes as Tier 2 Capital under applicable capital adequacy
guidelines and rules. The Company has no reason to believe that the Notes will not be treated as
Tier 2 Capital. The Company shall confirm such matters in an officers’ certificate delivered to
SunTrust at the Closing.




ARTICLE IV




COVENANTS




     The Borrower covenants and agrees that so long as any amount is owed under the Notes:



          Section 4.1 Financial Statements and Other Information. The Company will deliver to
the Lender:




          (a) as soon as available and in any event within 90 days after the end of each fiscal year of
the Borrower Parent, a copy of the annual audited report for such fiscal year for the Borrower
Parent and its Subsidiaries, containing a consolidated balance sheet and the related consolidated
statements of income, of shareholders’ equity and comprehensive income, and of cash flows (together
with all footnotes thereto), setting forth in each case in comparative form the figures for the
previous fiscal year, all in reasonable detail and reported on by independent public accountants of
nationally recognized standing (without a “going concern” or like qualification, exception or
explanation and without any qualification or exception as to scope of such audit) to the effect
that such financial statements present fairly in all material respects the financial condition and
the results of operations and cash flows on a consolidated basis of the Borrower Parent and its
Subsidiaries for such fiscal year in accordance with GAAP and that the examination by such
accountants in connection with such financial statements has been made in accordance with
generally accepted auditing standards; provided, that the requirements set forth in this
clause (a) may be fulfilled by providing to the Lender the report of the Company to the Commission
on Form 10-K for the applicable fiscal year;




-8 -









 








          (b) as soon as available and in any event within 45 days after the end of each of the first
three fiscal quarters of each fiscal year of the Borrower Parent, an unaudited balance sheet of the
Borrower Parent and its Subsidiaries on a consolidated basis as of the end of such fiscal quarter
and the related unaudited statements of income and cash flows of the Borrower Parent and its
Subsidiaries on a consolidated basis for such fiscal quarter and the then elapsed portion of such
fiscal year, setting forth in each case in comparative form the figures for the corresponding
quarter and the corresponding portion of Borrower Parent’s previous fiscal year, all certified by
the chief financial officer or treasurer of the Borrower Parent as presenting fairly in all
material respects the financial condition and results of operations of the Company and its
Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-end audit
adjustments and the absence of footnotes; provided, that the requirements set forth in this
clause (b) may be fulfilled by providing to the Lender the report of the Company to the Commission
on Form 10-Q for the applicable fiscal quarter;




          (c) upon filing and not later than the respective due dates, copies of the Borrower Parent’s
Federal Reserve Reports, copies of the Borrower’s Call Report; and




          (d) deliver without charge to SunTrust or any Holder, promptly upon filing or becoming
available, copies of (i) all other reports or other publicly available information that the Company
or the Borrower Parent mails or otherwise makes available to their respective shareholders and
holders of securities, (ii) all reports, financial statements and proxy or information statements
filed by the Borrower Parent with the Commission, NASDAQ or any securities exchange, and (iii)
other nonconfidential information concerning the Company, the Borrower Parent or their respective
Subsidiaries as reasonably requested by SunTrust or any Holder, including press releases, analysts’
reports and communications with holders of Company or Subsidiary securities.




          (e) all amendments of the foregoing and all supplements and schedules to the foregoing.




Documents required to be delivered pursuant to Sections 5.1(a), 5.1(b), and
5.1(d) that are filed with, or furnished to, the Commission electronically shall be deemed
to have been delivered to the Lender on the date (i) on which the Borrower Parent posts such
documents or provides a link thereto on the Borrower Parent’s website on the internet at the
website address set forth in Section 9.1; provided, that (A) the Borrower shall
deliver paper copies of such documents to the Lender if the Lender so requests in writing until a
further written notice is received by the Borrower from the Lender to cease delivering paper copies
and (B) the Borrower shall notify the Lender of the posting of any such documents.




          Section 4.2 Notices of Material Events. The Borrower will furnish to the Lender
prompt written notice of the following:




          (a) the filing or commencement of any action, suit or proceeding by or before any arbitrator
or Governmental Authority against or, to the knowledge of the Company, affecting the Company, the
Borrower Party or any of their respective Subsidiaries which could reasonably be expected to result
in a Material Adverse Effect;




-9 -









 








          (b) any material investigation of the Company, the Borrower Parent, or any of their respective
Subsidiaries by any Governmental Agency having regulatory authority over the Company or any such
Subsidiaries (other than routine examinations of the Borrower and/or any such Subsidiary);




          (c) the issuance of any cease and desist order, written agreement, cancellation of insurance
or other public enforcement action by any Governmental Authority having regulatory authority over
the Company or any Subsidiary;




          (d) the issuance of any memorandum of understanding or enforcement or regulatory action
(formal or informal) by or from any Governmental Authority having regulatory authority over the
Company or any Subsidiary, to the extent that the Company or any such Subsidiary is permitted to
disclose such information (provided that the Borrower shall take all reasonable efforts to obtain
any necessary regulatory consents);




          (e) any other development that results in, or could reasonably be expected to result in, a
Material Adverse Effect.




          Each notice delivered under this Section shall be accompanied by a written statement of a
Responsible Officer setting forth the details of the event or development requiring such notice and
any action taken or proposed to be taken with respect thereto.




          Section 4.3 Use of Proceeds. The Borrower will use the proceeds from the sale of the
Notes for general working capital purposes and regulatory capital. No part of the proceeds of the
Subordinated Term Loan will be used, whether directly or indirectly, for any purpose that would
violate any rule or regulation of the Board of Governors of the Federal Reserve System, including
Regulation T, U or X.




          Section 4.4 OCC Notice. Promptly following the Closing, but in no event more than ten
days after the Closing Date, the Borrower shall provide notice to OCC of the Borrower’s issuance of
the Subordinated Capital Notes, which notice shall include the information required by, and
otherwise be made in compliance with, 12 C.F.R. §5.47(g).




ARTICLE V




CONDITIONS PRECEDENT TO NOTES PURCHASE




          Section 5.1 Conditions To Purchasing the Notes. The obligations of SunTrust to
purchase the Notes and extend credit to the Borrower thereunder is subject to the receipt by
SunTrust of the following documents in form and substance reasonably satisfactory to the SunTrust:




          (a) this Agreement duly executed and delivered by the Borrower;




          (b) a duly executed Note substantially in the form of Exhibit A hereto has been executed and
delivered to SunTrust;




-10 -









 








          (c) a certificate of the Secretary or Assistant Secretary of the Borrower, attaching and
certifying copies of its articles of association, bylaws and of the resolutions of its board of
directors, authorizing the execution, delivery and performance of the Transaction Documents and
certifying the name, title and true signature of each officer of the Borrower authorized to execute
the Transaction Documents;




          (d) a certificate of corporate existence issued by the Office of the Comptroller of the
Currency dated not more than 5 Business Days prior to the Closing Date;




          (e) a favorable written opinion of Bass Berry & Sims PLC, counsel to the Borrower, addressed
to the Lender, and covering such matters relating to the Borrower, the Transaction Documents and
the transactions contemplated therein as the Lender shall reasonably request;




          (f) a certificate of Borrower, signed by the Chief Executive Officer, President or an
Executive Vice President and by the Chief Financial Officer or Treasurer of the Borrower,
certifying that: (a) all representations and warranties of the Borrower herein shall be true and
correct in all material respects on and as of the Closing Date, both before and immediately after
giving effect to this Agreement, and (b) since December 31, 2007, there has been no material
adverse change in the condition (financial or other), earnings, business, prospects or assets of
the Borrower and its Subsidiaries; and




          (g) a certificate of Borrower Parent, signed by the Chief Executive Officer, President or an
Executive Vice President and by the Chief Financial Officer or Treasurer of the Borrower Parent,
certifying that all representations and warranties of the Borrower Parent and its Subsidiaries
herein shall be true and correct in all material respects on and as of the Closing Date, both
before and immediately after giving effect to this Agreement; and




          (h) the payment of the placement fee owed to SunTrust Robinson Humphrey, Inc. in the amount of
$225,000.




ARTICLE VI




MISCELLANEOUS




          Section 6.1 Notices.




          (a) Except in the case of notices and other communications expressly permitted to be given by
telephone, all notices and other communications to any party herein to be effective shall be in
writing and shall be delivered by hand or reliable overnight courier service, mailed by certified
or registered mail or sent by telecopy, as follows:




	 	 	 	 	 
	          To the Borrower:
	 	 	Pinnacle National Bank
	 
	 	 	211 Commerce Street
	 
	 	 	Suite 300
	 
	 	 	Nashville, Tennessee  37201






-11 -









 






	 	 	 	 	 
	 
	 	Attn:  Harold R. Carpenter
	 
	 	Telephone Number:  (615) 744-3742
	 
	 	Fax Number:  (615) 744-3842
	 
	 	Email:  harold.carpenter@pnfp.com
	 
	 	 	 	 
	To the Lender:
	 	SunTrust Bank
	 
	 	303 Peachtree Street, 3rd Floor
	 
	 	Atlanta, Georgia 30308
	 
	 	 	 	 
	 
	 	Attn:  Christopher M. Houck
	 
	 	Telephone Number:  (404) 588-7788
	 
	 	Fax Number:  (404) 581-1775
	 
	 	Email: chris.houck@suntrust.com





Notices sent by hand or reliable overnight courier service, or mailed by certified or registered
mail, shall be deemed to have been given when received; notices sent by telecopier shall be deemed
to have been given when sent (except that, if not given during normal business hours for the
recipient, shall be deemed to have been given at the opening of business on the next Business Day
for the recipient).



Any party hereto may change its address or telecopy number for notices and other communications
hereunder by notice to the other parties hereto. All such notices and other communications shall,
when transmitted by overnight delivery, or faxed, be effective when delivered for overnight
(next-day) delivery, or transmitted in legible form by facsimile machine, respectively, or if
mailed, upon the third Business Day after the date deposited into the mails or if delivered, upon
delivery; provided, that notices delivered to the Lender shall not be effective until
actually received by the Lender at its address specified in this Section 6.1. With respect
to any communications delivered or furnished by electronic communication under Section 5.1,
such communications sent to an e-mail address shall be deemed received upon the sender’s receipt of
an acknowledgement from the intended recipient (such as by the “return receipt requested” function,
as available, return e-mail or other written acknowledgement); provided, that if such
communications are not sent during the normal business hours of the recipient, such communications
shall be deemed to have been sent at the opening of business on the next Business Day for the
recipient, and (ii) communications posted to an internet website shall be deemed received upon the
deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause
(i) of notification that such communication is available and identifying the website address
therefor.




          (b) Any agreement of the Lender herein to receive certain notices by telephone or facsimile is
solely for the convenience and at the request of the Borrower. The Lender shall be entitled to
rely on the authority of any Person purporting to be a Person authorized by the Borrower to give
such notice and the Lender shall not have any liability to the Borrower or other Person on account
of any action taken or not taken by the Lender in reliance upon such telephonic or facsimile
notice.




-12 -









 








          Section 6.2 Waiver; Amendments.




          (a) No failure or delay by the Lender in exercising any right or power hereunder under the
Notes or any other Transaction Document, and no course of dealing between the Borrower and the
Lender, shall operate as a waiver thereof, nor shall any single or partial exercise of any such
right or power or any abandonment or discontinuance of steps to enforce such right or power,
preclude any other or further exercise thereof or the exercise of any other right or power
hereunder or thereunder. The rights and remedies of the Lender hereunder and under the other
Transaction Documents are cumulative and are not exclusive of any rights or remedies provided by
law.




          (b) No amendment or waiver of any provision of this Agreement or the other Transaction
Documents, nor consent to any departure by the Borrower therefrom, shall in any event be effective
unless the same shall be in writing and signed by the Lender in the case of a waiver by the Lender
and the Borrower in the case of a waiver by the Borrower, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which given.




          Section 6.3 Expenses; Indemnification.




          (a) The Borrower shall pay (i) all reasonable, out-of-pocket costs and expenses of the Lender
(including, without limitation, the reasonable fees, charges and disbursements of outside counsel
and the allocated cost of inside counsel) in connection with the preparation and administration of
the Notes, this Agreement and the Other Transaction Documents and any amendments, modifications or
waivers thereof (whether or not the Transactions contemplated in this Agreement, the Notes or any
other Transaction Document shall be consummated), and (ii) all out-of-pocket costs and expenses
(including, without limitation, the reasonable fees, charges and disbursements of outside counsel
and the allocated cost of inside counsel) incurred by the Lender in connection with the enforcement
or protection of its rights in connection with this Agreement, including its rights under this
Section, or in connection with the Notes or the other Transaction Documents, including all such
out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of the
Notes.




          (b) The Company agrees to indemnify and hold harmless SunTrust and its Affiliates and its
directors, officers, employees, agents, representatives, and each person or entity who controls
SunTrust and its Affiliates within the meaning of Section 15 of the Securities Act or Section 20 of
the 1934 Act, and their respective heirs, and personal and legal representatives of such
individuals, against any and all costs, losses, expenses, claims, damages or liabilities, joint,
several, or individual actions, investigations or proceedings of any nature (“Claims”),
including the reasonable fees, charges and disbursements of any counsel for any Indemnitee, all as
incurred which may be incurred by any Indemnitee, or asserted against any Indemnitee by the
Borrower, the Borrower Parent or their respective Subsidiaries or successors or any other Person,
arising out of, in connection with or as a result of (i) the authorization, issuance or sale of the
Notes the execution, delivery or performance of this Agreement, the Notes or any other Transaction
Document, the performance by the Parties hereto of their respective obligations hereunder or the
consummation of any of the transactions contemplated hereby or by the Notes or any other
Transaction Document, (ii) any actual or proposed use of the proceeds from the




-13 -









 







issuance and sale of the Notes, or (iii) any actual or prospective Claim or relating to any of
the foregoing, whether brought by the Borrower, the Borrower Parent or any of their respective
Affiliates or any third Person and whether based on contract, tort, or any other theory and
regardless of whether any Indemnitee is a party thereto, provided, that such indemnity shall not,
as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or
related expenses are determined by a court of competent jurisdiction in a final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee.




          (c) Promptly after receipt by an Indemnified Person of notice of the commencement of any
Claim, such Indemnified Person will, if a claim in respect thereof is to be made against the
Company under this Section 6.3, notify the Company in writing of the commencement thereof; but the
failure to so notify the Company shall not relieve the Company from any liability hereunder, except
and to the extent it is materially prejudiced as a result thereof, and in any event shall not
relieve it from any liability which it may have otherwise than on account of this Section 6.3,
except to the extent that the failure to so notify the other party is a defense to such other
liability.




          (d) The Borrower shall pay, and hold the Lender harmless from and against, any and all present
and future stamp, documentary, and other similar taxes with respect to the Notes, this Agreement
and any other Transaction Documents, any collateral described therein, or any payments due
thereunder, and save the Lender harmless from and against any and all liabilities with respect to
or resulting from any delay or omission to pay such taxes.




          (e) To the extent permitted by applicable law, the Borrower shall not assert, and hereby
waives, any claim against any Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to actual or direct damages) arising out of, in
connection with or as a result of, this Agreement, any other Transaction Document, the transactions
contemplated herein or therein, the Subordinated Term Loan or the use of proceeds thereof.




          (f) All amounts due under this Section shall be payable promptly after written demand
therefor.




          Section 6.4 Successors and Assigns.




          (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns, except that the Borrower may not assign
or transfer any of its rights or delegate any of its obligations hereunder without the prior
written consent of the Lender (and any attempted assignment, delegation or transfer by the Borrower
without such consent shall be null and void).




          (b) The Lender is purchasing the Notes without any view to “distribution” of such Notes within
the meaning of the Securities Act. The Lender may at any time sell some or all the Notes, or
participations or assignments in all or a portion of its rights and obligations under this
Agreement, the Notes and the other Transaction Documents, provided any such transfer shall be made
in a manner that does not require the Company to register the Notes under the Securities Act,
applicable OCC regulations, or any applicable state securities or blue sky




-14 -









 







laws. Any Holder of Notes shall be deemed to have all the same rights granted to SunTrust
hereunder and under the Notes and other Transaction Documents.




          Section 6.5 Governing Law; Jurisdiction; Consent to Service of Process.




          (a) This Agreement and the other Transaction Documents shall be construed in accordance with
and be governed by the laws (without giving effect to the conflict of law principles thereof) of
the State of New York.




          (b) The Borrower hereby irrevocably and unconditionally submits, for itself and its property,
to the non-exclusive jurisdiction of any Federal and/or state court located in the State of Georgia
and any appellate court from any thereof, in any action or proceeding arising out of or relating to
this Agreement or any other Transaction Document or the transactions contemplated hereby or
thereby, or for recognition or enforcement of any judgment, and each of the parties hereto hereby
irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding
may be heard and determined in any such court. Each of the parties hereto agrees that a final
nonappealable judgment in any such action or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other manner provided by applicable Law.
Nothing in this Agreement or any other Transaction Document shall affect any right that the Lender
may otherwise have to bring any action or proceeding relating to this Agreement, then Notes or any
other Transaction Document against the Borrower or its properties in the courts of any
jurisdiction.




          (c) The Borrower irrevocably and unconditionally waives any objection which it may now or
hereafter have to the laying of venue of any such suit, action or proceeding described in paragraph
(b) of this Section and brought in any court referred to in paragraph (b) of this Section. Each of
the parties hereto irrevocably waives, to the fullest extent permitted by applicable law, the
defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.




          (d) Each party to this Agreement irrevocably consents to the service of process in the manner
provided for notices in Section 6.1. Nothing in this Agreement or in any other Transaction
Document will affect the right of any party hereto to serve process in any other manner permitted
by law.




          Section 6.6 WAIVER OF JURY TRIAL. EACH PARTY HERETO IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF THIS AGREEMENT, THE NOTES OR ANY OTHER TRANSACTION
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY
OTHER THEORY).




          Section 6.7 Counterparts; Integration. This Agreement may be executed by one or more
of the parties to this Agreement on any number of separate counterparts (including by telecopy),
and all of said counterparts taken together shall be deemed to constitute one and the same
instrument. This Agreement, the Notes the other Transaction Documents, and any separate




-15 -









 







letter agreement(s) relating to any fees payable to the Lender or any of its Affiliates
constitute the entire agreement among the parties hereto and thereto regarding the subject matters
hereof and thereof and supersede all prior agreements and understandings, oral or written,
regarding such subject matters.




          Section 6.8 Survival. All covenants, agreements, representations and warranties made
by the Borrower and the Borrower Parent herein and in the certificates or other instruments
delivered in connection with or pursuant to this Agreement shall be considered to have been relied
upon by the other parties hereto and shall survive the execution and delivery of this Agreement and
the purchase of the Notes, regardless of any investigation made by any such other party or on its
behalf and notwithstanding that the Lender may have had notice or knowledge of any incorrect
representation or warranty at the time any credit is extended hereunder, and shall continue in full
force and effect as long as the principal of or any accrued interest on the Notes or any other
amount payable or obligation under this Agreement or the Notes is outstanding and unpaid. The
provisions of Section 6.3 shall survive and remain in full force and effect
regardless of the consummation of the transactions contemplated hereby, the repayment of all of
Borrower’s obligations, or the termination of this Agreement or any provision hereof. All
representations and warranties made herein, in the certificates, reports, notices, and other
documents delivered pursuant to this Agreement or the Notes shall survive the execution and
delivery of this Agreement, the Notes and the other Transaction Documents, and the issuance and
sale of the Notes.




          Section 6.9 Severability. Any provision of this Agreement or any other Transaction
Document held to be illegal, invalid or unenforceable in any jurisdiction, shall, as to such
jurisdiction, be ineffective to the extent of such illegality, invalidity or unenforceability
without affecting the legality, validity or enforceability of the remaining provisions hereof or
thereof; and the illegality, invalidity or unenforceability of a particular provision in a
particular jurisdiction shall not invalidate or render unenforceable such provision in any other
jurisdiction.




          Section 6.10 Patriot Act. The Lender hereby notifies the Borrower that pursuant to
the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the “Patriot Act”), it is required to obtain, verify and record information that
identifies the Borrower, which information includes the name and address of the Borrower and other
information that will allow the Lender to identify the Borrower in accordance with the Patriot
Act. The Borrower shall, and shall cause each of its Subsidiaries to, provide to the extent
commercially reasonable, such information and take such other actions as are reasonably requested
by the Lender in order to assist the Lender in maintaining compliance with the Patriot Act.




[Remainder of Page Intentionally Left Blank]




-16 -









 








     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed, under
seal in the case of the Borrower, by their respective authorized officers as of the day and year
first above written.



	 	 	 	 	 	 	 
	 	 	PINNACLE NATIONAL BANK	 	 
	 
	 	 	 	 	 	 
	 

	 	By	 	/s/ M. Terry Turner	 	 
	 

	 	 	 	 

Name: M. Terry Turner
	 	 
	 

	 	 	 	Title: President & Chief
Executive Officer	 	 
	 
	 	 	 	 	 	 
	 	 	[SEAL]	 	 
	 
	 	 	 	 	 	 
	 	 	SUNTRUST BANK	 	 
	 
	 	 	 	 	 	 
	 

	 	By	 	/s/ William Christensen	 	 
	 

	 		 	 

Name: William Christensen
	 	 
	 

	 	 	 	Title: Director	 	 






     Joined in by Pinnacle Financial Partners, Inc. solely as to the representations, warranties,
and covenants made by the Borrower Parent and executed under seal by its undersigned duly
authorized officer as of the day and year first above written.



	 	 	 	 	 	 	 
	 	 	PINNACLE FINANCIAL PARTNERS, INC.	 	 
	 
	 
	 	By	 	/s/ M. Terry Turner	 	 
	 

	 	
	 	 

Name: M. Terry Turner
	 	 
	 

	 	 	 	Title: President & Chief
Executive Officer	 	 
	 
	 	 	 	 	 	 
	 	 	[SEAL]	 	 







-17 -