Exhibit 10.14
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LOAN AGREEMENT
BY AND BETWEEN
WARWICK COMMUNITY BANCORP, INC.
EMPLOYEE STOCK OWNERSHIP PLAN TRUST
AND
WARWICK COMMUNITY BANCORP, INC.
MADE AND ENTERED INTO AS OF
DECEMBER 23, 1997
TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS
SECTION 1.1 BUSINESS DAY..............................................1
SECTION 1.2 CODE......................................................1
SECTION 1.3 DEFAULT...................................................2
SECTION 1.4 ERISA.....................................................2
SECTION 1.5 EVENT OF DEFAULT..........................................2
SECTION 1.6 INDEPENDENT COUNSEL.......................................2
SECTION 1.7 LOAN......................................................2
SECTION 1.8 LOAN DOCUMENTS............................................2
SECTION 1.9 PLAN YEAR.................................................2
SECTION 1.10 PLEDGE AGREEMENT..........................................2
SECTION 1.11 PRINCIPAL AMOUNT..........................................2
SECTION 1.12 PROMISSORY NOTE...........................................2
SECTION 1.13 REGISTER..................................................2
ARTICLE II
THE LOAN; PRINCIPAL AMOUNT;
INTEREST; SECURITY; INDEMNIFICATION
SECTION 2.1 THE LOAN; PRINCIPAL AMOUNT................................2
SECTION 2.2 INTEREST..................................................3
SECTION 2.3 PROMISSORY NOTE...........................................4
SECTION 2.4 PAYMENT OF TRUST LOAN.....................................4
SECTION 2.5 PREPAYMENT................................................5
SECTION 2.6 METHOD OF PAYMENTS........................................5
SECTION 2.7 USE OF PROCEEDS OF LOAN...................................6
SECTION 2.8 SECURITY..................................................6
SECTION 2.9 REGISTRATION OF THE PROMISSORY NOTE.......................7
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE BORROWER
SECTION 3.1 POWER, AUTHORITY, CONSENTS................................7
SECTION 3.2 DUE EXECUTION, VALIDITY, ENFORCEABILITY...................7
SECTION 3.3 PROPERTIES, PRIORITY OF LIENS.............................7
SECTION 3.4 NO DEFAULTS, COMPLIANCE WITH LAWS.........................8
SECTION 3.5 PURCHASES OF COMMON STOCK.................................8
(i)
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE LENDER
SECTION 4.1 POWER, AUTHORITY, CONSENTS................................8
SECTION 4.2 DUE EXECUTION, VALIDITY, ENFORCEABILITY...................9
SECTION 4.3 ESOP; CONTRIBUTIONS.......................................9
SECTION 4.4 TRUSTEE; COMMITTEE........................................9
SECTION 4.5 COMPLIANCE WITH LAWS; ACTIONS.............................9
SECTION 4.6 EXEMPT LOAN RULES.........................................9
ARTICLE V
EVENTS OF DEFAULT
SECTION 5.1 EVENTS OF DEFAULT UNDER LOAN AGREEMENT...................10
SECTION 5.2 LENDER'S RIGHTS UPON EVENT OF DEFAULT....................10
ARTICLE VI
MISCELLANEOUS PROVISIONS
SECTION 6.1 PAYMENTS DUE TO THE LENDER...............................11
SECTION 6.2 PAYMENTS.................................................11
SECTION 6.3 SURVIVAL.................................................11
SECTION 6.4 MODIFICATIONS, CONSENTS AND WAIVERS; ENTIRE AGREEMENT....11
SECTION 6.5 REMEDIES CUMULATIVE......................................12
SECTION 6.6 FURTHER ASSURANCES; COMPLIANCE WITH COVENANTS............12
SECTION 6.7 NOTICES..................................................12
SECTION 6.8 COUNTERPARTS.............................................13
SECTION 6.9 CONSTRUCTION; GOVERNING LAW..............................14
SECTION 6.10 SEVERABILITY.............................................14
SECTION 6.11 BINDING EFFECT; NO ASSIGNMENT OR DELEGATION..............14
EXHIBIT A FORM OF PROMISSORY NOTE.........................................A-1
EXHIBIT B FORM OF PLEDGE AGREEMENT........................................B-1
EXHIBIT C FORM OF ASSIGNMENT..............................................C-1
EXHIBIT D FORM OF IRREVOCABLE PROXY.......................................D-1
(ii)
LOAN AGREEMENT
This LOAN AGREEMENT ("Loan Agreement") is made and entered
into as of the 23rd day of December, 1997, by and between the WARWICK COMMUNITY
BANCORP, INC. EMPLOYEE STOCK OWNERSHIP PLAN TRUST ("Borrower"), a trust forming
part of the Warwick Community Bancorp, Inc. Employee Stock Ownership Plan
("ESOP"), acting through and by its Trustee, MARINE MIDLAND BANK ("Trustee"), a
banking corporation organized under the laws of the State of New York and having
an office at 000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000; and WARWICK COMMUNITY
BANCORP, INC. ("Lender"), a corporation organized and existing under the laws of
the state of Delaware, having an office at 00 Xxxxxxx Xxxxxx, Xxxxxxx, Xxx Xxxx
00000-0000.
W I T N E S S E T H :
WHEREAS, in the Combined Certificate of Directions dated as of
December 11, 1997, the Lender, the ESOP Plan Administrator and the ESOP
Committee ("Committee") has certified that the Trustee, as Trustee of the ESOP,
has been directed to acquire, through open market purchases, if necessary,
528,523 shares of common stock of the Lender ("Common Stock"), which is equal to
8% of the shares of Common Stock issued by the Lender in connection with the
conversion of The Warwick Savings Bank ("Conversion"), including the number of
shares to be issued to The Warwick Savings Foundation ("Foundation"), and to
borrow funds from the Lender for the purpose of financing authorized purchases
of Common Stock; and
WHEREAS, the Lender is willing to make a loan to the Borrower
for such purpose;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
The following definitions shall apply for purposes of this
Loan Agreement, except to the extent that a different meaning is plainly
indicated by the context:
SECTION 1.1 BUSINESS DAY means any day other than a Saturday,
Sunday or other day on which banks are authorized or required to close under
federal law or the laws of the State of New York.
SECTION 1.2 CODE means the Internal Revenue Code of 1986
(including the cor responding provisions of any succeeding law).
SECTION 1.3 DEFAULT means an event or condition which would
constitute an Event of Default. The determination as to whether an event or
condition would constitute an Event of Default shall be determined without
regard to any applicable requirement of notice or lapse of time.
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SECTION 1.4 ERISA means the Employee Retirement Income
Security Act of 1974, as amended (including the corresponding provisions of any
succeeding law).
SECTION 1.5 EVENT OF DEFAULT means an event or condition
described in Article 5.
SECTION 1.6 INDEPENDENT COUNSEL means Xxxxxxx Xxxxxxxx & Xxxx
or other counsel mutually satisfactory to both the Lender and the Borrower.
SECTION 1.7 LOAN means the loan described in section 2.1.
SECTION 1.8 LOAN DOCUMENTS means, collectively, this Loan
Agreement, the Promissory Note and the Pledge Agreement and all other documents
now or hereafter executed and delivered in connection with such documents,
including all amendments, modifications and supplements of or to all such
documents.
SECTION 1.9 PLAN YEAR means the calendar year, beginning with
the calendar year ending December 31, 1997.
SECTION 1.10 PLEDGE AGREEMENT means the agreement described in
section 2.8(a).
SECTION 1.11 PRINCIPAL AMOUNT means the face amount of the
Promissory Note, determined as set forth in section 2.1(c).
SECTION 1.12 PROMISSORY NOTE means the promissory note
described in section 2.3.
SECTION 1.13 REGISTER means the register described in section
2.9.
ARTICLE II
THE LOAN; PRINCIPAL AMOUNT;
INTEREST; SECURITY; INDEMNIFICATION
SECTION 2.1 THE LOAN; PRINCIPAL AMOUNT.
(a) The Lender hereby agrees to lend to the Borrower such
amounts, and at such times, as shall be determined under this section 2.1;
PROVIDED, HOWEVER, that in no event shall the aggregate amount lent under this
Loan Agreement from time to time exceed an amount sufficient to permit the
Borrower to purchase 528,523 shares of Common Stock, which is equal to 8% of the
number of shares of Common Stock issued by the Lender in the Conversion,
including the number of shares of Common Stock issued to the Foundation.
(b) Subject to the limitations of section 2.1(a), the Borrower
shall determine the amounts borrowed under this Agreement, and the times at
which such borrowings are effected. Each such determination shall be evidenced
in a writing which shall set forth the amount to be borrowed and the date on
which the Lender shall disburse such amount, and such writing shall be
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furnished to the Lender by notice from the Borrower. The Lender shall disburse
to the Borrower the amount specified in each such notice on the date specified
therein or, if later, as promptly as practicable following the Lender's receipt
of such notice; PROVIDED, HOWEVER, that the Lender shall have no obligation to
disburse funds pursuant to this Agreement following the occurrence of a Default
or an Event of Default until such time as such Default or Event of Default shall
have been cured.
(c) For all purposes of this Loan Agreement, the Principal
Amount on any date shall be equal to the excess, if any, of:
(i) the aggregate amount disbursed by the Lender
pursuant to section 2.1(b) on or before such date; over
(ii) the aggregate amount of any repayments of such
amounts made before such date.
The Lender shall maintain on the Register a record of, and shall record on the
Promissory Note, the Principal Amount, any changes in the Principal Amount and
the effective date of any changes in the Principal Amount.
SECTION 2.2 INTEREST.
(a) The Borrower shall pay to the Lender interest on the
Principal Amount, for the period commencing on the date of this Loan Agreement
and continuing until the Principal Amount shall be paid in full at the rate of
eight percent (8%) per annum. Interest payable under this Agreement shall be
computed on the basis of a year of 365 days and actual days elapsed (including
the first day but excluding the last) occurring in the period to which the
computation relates.
(b) Except as otherwise provided in this section 2.2(b),
accrued interest on the Principal Amount shall be payable by the Borrower
quarterly in arrears commencing on the last Business Day of the first calendar
quarter to end following the date of this Agreement and continu ing on the last
Business Day of each calendar quarter thereafter and upon the payment or prepay
ment of such Loan. All interest on the Principal Amount shall be paid by the
Borrower in immediately available funds. The Lender shall remit to the Borrower,
at least three (3) Business Days before the end of each calendar quarter, a
statement of the interest payment due under section 2.2(a) for such quarter;
PROVIDED, HOWEVER, that a delay or failure by the Lender in providing the
Borrower with such statement shall not alter the Borrower's obligation to make
such payment.
(c) Anything in this Loan Agreement or the Promissory Note to
the contrary notwithstanding, the obligation of the Borrower to make payments of
interest shall be subject to the limitation that payments of interest shall not
be required to be made to the Lender to the extent that the Lender's receipt
thereof would not be permissible under the law or laws applicable to the Lender
limiting rates of interest which may be charged or collected by the Lender. Any
such payment referred to in the preceding sentence shall be made by the Borrower
to the Lender on the earliest interest payment date or dates on which the
receipt thereof would be permissible under the
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laws applicable to the Lender limiting rates of interest which may be charged or
collected by the Lender. Such deferred interest shall not bear interest.
SECTION 2.3 PROMISSORY NOTE.
The Loan shall be evidenced by a Promissory Note of the
Borrower in substantially the form of Exhibit A attached hereto, dated the date
hereof, payable to the order of the Lender in the Principal Amount and otherwise
duly completed.
SECTION 2.4 PAYMENT OF TRUST LOAN.
(a) The Principal Amount of the Loan shall be repaid in annual
installments payable on the last Business Day of each Plan Year ending after the
date of this Agreement. The amount of each such annual installment shall be
equal to a fraction of the Principal Amount on the due date of such installment,
determined in accordance with the following schedule:
INSTALLMENT DUE ON FRACTION OF OUTSTANDING
LAST BUSINESS DAY OF PRINCIPAL AMOUNT
DECEMBER: ----------------
---------
1997 1/10
1998 1/10
1999 1/10
2000 1/10
2001 1/10
2002 1/10
2003 1/10
2004 1/10
2005 1/10
2006 1/10
PROVIDED, HOWEVER, that the Borrower shall not be required to make any payment
of principal due to be made in any Plan Year to the extent that (i) following
such payment, the consolidated return on average assets of Warwick Community
Bancorp. Inc. for such Plan Year, excluding the contribution by Warwick
Community Bancorp, Inc. to the Foundation, would be less than one-half of one
percent (0.5%) or the consolidated return on average equity for such Plan Year,
excluding the contribution by Warwick Community Bancorp, Inc. to the Foundation,
would be less than four percent (4%) or (ii) such payment would not be
deductible for federal income tax purposes for such Plan Year under section 404
of the Code. Notwithstanding anything contained herein to the contrary, a
reduction in regularly scheduled principal payments shall not be permitted
pursuant to the preceding sentence if such reduction would, in the sole
discretion of the Trustee, based on the opinion of its counsel, violate the
exempt loan rules described in section 4.6 hereof.
(b) Any payment not required to made pursuant to the clause
(i) of the proviso in section 2.4(a) shall be deferred to and be payable on the
earlier of the tenth (10th) anniversary of the loan origination date or the last
day of the first Plan Year in which such proviso would not
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apply to alleviate a requirement of payment; and payment not required to be made
pursuant to clause (ii) of section 2.4(a) shall be deferred to and be payable on
the last day of the first Plan Year in which such payment may be made on a tax
deductible basis.
SECTION 2.5 PREPAYMENT.
The Borrower shall be entitled to prepay the Loan in whole or
in part, at any time and from time to time; PROVIDED, HOWEVER, that the Borrower
shall give notice to the Lender of any such prepayment; and provided, further,
that any partial prepayment of the Loan shall be in an amount not less than TEN
THOUSAND DOLLARS ($10,000.00). Any such prepayment shall be: (a) permanent and
irrevocable: (b) accompanied by all accrued interest through the date of such
prepayment; (c) made without premium or penalty; and (d) applied in the inverse
order of the maturity of the installments thereof unless the Lender and the
Borrower agree to apply such prepayments in some other order.
SECTION 2.6 METHOD OF PAYMENTS.
(a) All payments of principal, interest, other charges
(including indemnities) and other amounts payable by the Borrower hereunder
shall be made in lawful money of the United States, in immediately available
funds, to the Lender at the address specified in or pursuant to this Loan
Agreement for notices to the Lender, not later than 3:00 P.M., New York time, on
the date on which such payment shall become due. Any such payment made on such
date but after such time shall, if the amount paid bears interest, and except as
expressly provided to the contrary herein, be deemed to have been made on, and
interest shall continue to accrue and be payable thereon until, the next
succeeding Business Day. If any payment of principal or interest becomes due on
a day other than a Business Day, such payment may be made on the next succeeding
Business Day, and when paid, such payment shall include interest to the day on
which such payment is in fact made.
(b) Notwithstanding anything to the contrary contained in this
Loan Agreement or the Promissory Note, neither the Borrower nor the Trustee
shall be obligated to make any payment, repayment or prepayment on the
Promissory Note or take or refrain from taking any other action hereunder or
under the Promissory Note if doing so would cause the ESOP to cease to be an
employee stock ownership plan within the meaning of section 4975(e)(7) of the
Code or qualified under section 401(a) of the Code or cause the Borrower to
cease to be a tax exempt trust under section 501(a) of the Code or if such act
or failure to act would cause the Borrower or the Trustee to engage in any
"prohibited transaction" as such term is defined in section 4975(c) of the Code
and the regulations promulgated thereunder which is not exempted by section
4975(c)(2) or (d) of the Code and the regulations promulgated thereunder or in
section 406 of ERISA and the regulations promulgated thereunder which is not
exempted by section 408(b) of ERISA and the regulations promulgated thereunder;
PROVIDED, HOWEVER, that in each case, the Borrower or the Trustee or both, as
the case may be, may act or refrain from acting pursuant to this section 2.6(b)
on the basis of an opinion of Independent Counsel. The Borrower and the Trustee
may consult with Independent Counsel, and any opinion of such Independent
Counsel shall be full and complete authorization and protection in respect of
any action taken or suffered or omitted by it hereunder in good faith and in
accordance with such opinion of Independent Counsel. Nothing contained in this
section 2.6(b) shall be construed as imposing a duty on either the Borrower or
the Trustee to
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consult with Independent Counsel. Any obligation of the Borrower or the Trustee
to make any payment, repayment or prepayment on the Promissory Note or to take
or refrain from taking any other act hereunder or under the Promissory Note
which is excused pursuant to this section 2.6(b) shall be considered a binding
obligation of the Borrower or the Trustee, or both, as the case may be, for the
purposes of determining whether a Default or Event of Default has occurred
hereunder or under the Promissory Note and nothing in this section 2.6(b) shall
be construed as providing a defense to any remedies otherwise available upon a
Default or an Event of Default hereunder (other than the remedy of specific
performance).
SECTION 2.7 USE OF PROCEEDS OF LOAN.
The entire proceeds of the Loan shall be used solely for
acquiring shares of Common Stock, and for no other purpose whatsoever.
SECTION 2.8 SECURITY.
(a) In order to secure the due payment and performance by the
Borrower of all of its obligations under this Loan Agreement, simultaneously
with the execution and delivery of this Loan Agreement by the Borrower, the
Borrower shall:
(i) pledge to the Lender as Collateral (as defined in the
Pledge Agreement), and grant to the Lender a first priority lien on and
security interest in, the Common Stock purchased with the Principal
Amount, by the execution and delivery to the Lender of a Pledge
Agreement in the form attached hereto as Exhibit B; and
(ii) execute and deliver, or cause to be executed and
delivered, such other agreements, instruments and documents as the
Lender may reasonably require in order to effect the purposes of the
Pledge Agreement and this Loan Agreement.
(b) The Lender shall release from encumbrance under the Pledge
Agreement and transfer to the Borrower, as of the date on which any payment or
prepayment of the Principal Amount is made, a number of shares of Common Stock
held as Collateral pursuant to section 6.4 of the ESOP.
SECTION 2.9 REGISTRATION OF THE PROMISSORY NOTE.
(a) The Lender shall maintain a Register providing for the
registration of the Principal Amount and any stated interest and of transfer and
exchange of the Promissory Note. Transfer of the Promissory Note may be effected
only by the surrender of the old instrument and either the reissuance by the
Borrower of the old instrument to the new holder or the issuance by the Borrower
of a new instrument to the new holder. The old Promissory Note so surrendered
shall be cancelled by the Lender and returned to the Borrower after such
cancellation.
(b) Any new Promissory Note issued pursuant to section 2.9(a)
shall carry the same rights to interest (unpaid and to accrue) carried by the
Promissory Note so transferred or ex changed so that there will not be any loss
or gain of interest on the note surrendered. Such new
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Promissory Note shall be subject to all of the provisions and entitled to all of
the benefits of this Agreement. Prior to due presentment for registration or
transfer, the Borrower may deem and treat the registered holder of any
Promissory Note as the holder thereof for purposes of payment and all other
purposes. A notation shall be made on each new Promissory Note of the amount of
all payments of principal and interest theretofore paid.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE BORROWER
The Borrower hereby represents and warrants to the Lender as
follows:
SECTION 3.1 POWER, AUTHORITY, CONSENTS.
The Borrower has the power to execute, deliver and perform
this Loan Agreement, the Promissory Note and the Pledge Agreement, all of which
have been duly authorized by all necessary and proper corporate or other action.
SECTION 3.2 DUE EXECUTION, VALIDITY, ENFORCEABILITY.
Each of the Loan Documents, including, without limitation,
this Loan Agreement, the Promissory Note and the Pledge Agreement, have been
duly executed and delivered by the Borrower; and each constitutes the valid and
legally binding obligation of the Borrower, enforceable in accordance with its
terms.
SECTION 3.3 PROPERTIES, PRIORITY OF LIENS.
The liens which have been created and granted by the Pledge
Agreement constitute valid, first liens on the properties and assets covered by
the Pledge Agreement, subject to no prior or equal lien.
SECTION 3.4 NO DEFAULTS, COMPLIANCE WITH LAWS.
The Borrower is not, to the actual knowledge of the Trustee,
in default in any material respect under any agreement, ordinance, resolution,
decree, bond, note, indenture, order or judgment to which it is a party or by
which it is bound, or any other agreement or other instrument by which any of
the properties or assets owned by it is materially affected.
SECTION 3.5 PURCHASES OF COMMON STOCK.
Upon consummation of any purchase of Common Stock by the
Borrower with the proceeds of the Loan, the Borrower shall acquire valid, legal
and marketable title to all of the Common Stock so purchased, free and clear of
any liens, other than a pledge to the Lender of the Common Stock so purchased
pursuant to the Pledge Agreement. To the actual knowledge of the
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Trustee, (a) neither the execution and delivery of the Loan Documents nor the
performance of any obligation thereunder violates any provision of law or
conflicts with or results in a breach of or creates (with or without the giving
of notice or lapse of time, or both) a default under any agreement to which the
Borrower is a party or by which it is bound or any of its properties is
affected, and (b) no consent of any federal, state or local governmental
authority, agency or other regulatory body, the absence of which could have a
materially adverse effect on the Borrower or the Trustee, is or was required to
be obtained in connection with the execution, delivery or performance of the
Loan Documents and the transactions contemplated therein or in connection
therewith, including, without limitation, with respect to the transfer of the
shares of Common Stock purchased with the proceeds of the Loan pursuant thereto.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE LENDER
The Lender hereby represents and warrants to the Borrower as
follows:
SECTION 4.1 POWER, AUTHORITY, CONSENTS.
The Lender has the power to execute, deliver and perform this
Loan Agreement, the Pledge Agreement and all documents executed by the Lender in
connection with the Loan, all of which have been duly authorized by all
necessary and proper corporate or other action. No consent, authorization or
approval or other action by any governmental authority or regulatory body, and
no notice by the Lender to, or filing by the Lender with, any governmental
authority or regulatory body is required for the due execution, delivery and
performance of this Loan Agreement.
SECTION 4.2 DUE EXECUTION, VALIDITY, ENFORCEABILITY.
This Loan Agreement and the Pledge Agreement have been duly
executed and delivered by the Lender; and each constitutes a valid and legally
binding obligation of the Lender, enforceable in accordance with its terms.
SECTION 4.3 ESOP; CONTRIBUTIONS.
The ESOP and the Borrower have been duly created, organized
and maintained by the Lender in compliance with all applicable laws, regulations
and rulings. The ESOP qualifies as an "employee stock ownership plan" as defined
in section 4975(e)(7) the Code. The ESOP provides that the Lender may make
contributions to the ESOP in an amount necessary to enable the Trustee to
amortize the Loan in accordance with the terms of the Promissory Note and this
Loan Agreement, and the Lender will make such contributions; PROVIDED, HOWEVER,
that no such contributions shall be required if they would adversely affect the
qualification of the ESOP under section 401(a) of the Code.
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SECTION 4.4 TRUSTEE; COMMITTEE.
The Lender has taken such action as is required to be taken by
it to duly appoint the Trustee and the members of the Committee. The Lender
expressly acknowledges and agrees that this Loan Agreement, the Promissory Note
and the Pledge Agreement are being executed by the Trustee not in its individual
capacity but solely as trustee of and on behalf of the Borrower.
SECTION 4.5 COMPLIANCE WITH LAWS; ACTIONS.
Neither the execution and delivery by the Lender of this Loan
Agreement or any instruments required thereby, nor compliance with the terms and
provisions of any such documents by the Lender, constitutes a violation of any
provision of any law or any regulation, order, writ, injunction or decree or any
court or governmental instrumentality, or an event of default under any
agreement, to which the Lender is a party or by which the Lender is bound or to
which the Lender is subject, which violation or event of default would have a
material adverse effect on the Lender. There is no action or proceeding pending
or threatened against either of the ESOP or the Borrower before any court or
administrative agency.
SECTION 4.6 EXEMPT LOAN RULES.
The Loan will be an "exempt loan," as that phrase is defined
in Treasury Regulation section 54.4975-7 and Department of Labor Regulation
section 2550.408b-3, and the transactions contemplated by the Loan Documents are
not nonexempt "prohibited transactions" under section 4975 of the Code and
section 406 of ERISA.
ARTICLE V
EVENTS OF DEFAULT
SECTION 5.1 EVENTS OF DEFAULT UNDER LOAN AGREEMENT.
Each of the following events shall constitute an "Event of
Default" hereunder:
(a) Failure to make any payment or mandatory prepayment of
principal of the Promissory Note when due, or failure to make any payment of
interest on the Promissory Note not later than five (5) Business Days after the
date when due.
(b) Failure by the Borrower to perform or observe any term,
condition or covenant of this Loan Agreement or of any of the other Loan
Documents, including, without limitation, the Promissory Note and the Pledge
Agreement; PROVIDED, HOWEVER, that such failure is not cured by the Borrower
within five (5) Business Days after notice of such failure is provided to the
Borrower by the Lender.
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(c) Any representation or warranty made in writing to the
Lender in any of the Loan Documents or any certificate, statement or report made
or delivered in compliance with this Loan Agreement, shall have been false or
misleading in any material respect when made or delivered.
SECTION 5.2 LENDER'S RIGHTS UPON EVENT OF DEFAULT.
If an Event of Default under this Loan Agreement shall occur
and be continuing, the Lender shall have no rights to assets of the Borrower
other than: (a) contributions (other than contributions of Common Stock) that
are made by the Lender to enable the Borrower to meet its obligations pursuant
to this Loan Agreement and earnings attributable to the investment of such
contributions and (b) "Eligible Collateral" (as defined in the Pledge
Agreement); PROVIDED, HOWEVER, that: (i) the value of the Borrower's assets
transferred to the Lender following an Event of Default in satisfaction of the
due and unpaid amount of the Loan shall not exceed the amount in default
(without regard to amounts owing solely as a result of any acceleration of the
Loan); (ii) the Borrower's assets shall be transferred to the Lender following
an Event of Default only to the extent of the failure of the Borrower to meet
the payment schedule of the Loan; and (iii) all rights of the Lender to the
Common Stock purchased with the proceeds of the Loan covered by the Pledge
Agreement following an Event of Default shall be governed by the terms of the
Pledge Agreement.
ARTICLE VI
MISCELLANEOUS PROVISIONS
SECTION 6.1 PAYMENTS DUE TO THE LENDER.
If any amount is payable by the Borrower to the Lender
pursuant to any indemnity obligation contained herein, then the Borrower shall
pay, at the time or times provided therefor, any such amount and shall indemnify
the Lender against and hold it harmless from any loss or damage resulting from
or arising out of the nonpayment or delay in payment of any such amount. If any
amounts as to which the Borrower has so indemnified the Lender hereunder shall
be assessed or levied against the Lender, the Lender may notify the Borrower and
make immediate payment thereof, together with interest or penalties in
connection therewith, and shall thereupon be entitled to and shall receive
immediate reimbursement therefor from the Borrower, together with interest on
each such amount as provided in section 2.2(c). Notwithstanding any other
provision contained in this Loan Agreement, the covenants and agreements of the
Borrower contained in this section 6.1 shall survive: (a) payment of the
Promissory Note and (b) termination of this Loan Agreement.
SECTION 6.2 PAYMENTS.
All payments hereunder and under the Promissory Note shall be
made without set-off or counterclaim and in such amounts as may be necessary in
order that all such payments
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shall not be less than the amounts otherwise specified to be paid under this
Loan Agreement and the Promissory Note, subject to any applicable tax
withholding requirements. Upon payment in full of the Promissory Note, the
Lender shall xxxx such Promissory Note "Paid" and return it to the Borrower.
SECTION 6.3 SURVIVAL.
All agreements, representations and warranties made herein
shall survive the delivery of this Loan Agreement and the Promissory Note.
SECTION 6.4 MODIFICATIONS, CONSENTS AND WAIVERS; ENTIRE
AGREEMENT.
No modification, amendment or waiver of or with respect to any
provision of this Loan Agreement, the Promissory Note, the Pledge Agreement, or
any of the other Loan Documents, nor consent to any departure from any of the
terms or conditions thereof, shall in any event be effective unless it shall be
in writing and signed by the party against whom enforcement thereof is sought.
Any such waiver or consent shall be effective only in the specific instance and
for the purpose for which given. No consent to or demand on a party in any case
shall, of itself, entitle it to any other or further notice or demand in similar
or other circumstances. This Loan Agreement embodies the entire agreement and
understanding between the Lender and the Borrower and supersedes all prior
agreements and understandings relating to the subject matter hereof.
SECTION 6.5 REMEDIES CUMULATIVE.
Each and every right granted to the Lender hereunder or under
any other document delivered hereunder or in connection herewith, or allowed it
by law or equity, shall be cumulative and may be exercised from time to time. No
failure on the part of the Lender or the holder of the Promissory Note to
exercise, and no delay in exercising, any right shall operate as a waiver
thereof, nor shall any single or partial exercise of any right preclude any
other or future exercise thereof or the exercise of any other right. The due
payment and performance of the obligations under the Loan Documents shall be
without regard to any counterclaim, right of offset or any other claim
whatsoever which the Borrower may have against the Lender and without regard to
any other obligation of any nature whatsoever which the Lender may have to the
Borrower, and no such counterclaim or offset shall be asserted by the Borrower
in any action, suit or proceeding instituted by the Lender for payment or
performance of such obligations.
SECTION 6.6 FURTHER ASSURANCES; COMPLIANCE WITH
COVENANTS.
At any time and from time to time, upon the request of the
Lender, the Borrower shall execute, deliver and acknowledge or cause to be
executed, delivered and acknowledged, such further documents and instruments and
do such other acts and things as the Lender may reasonably request in order to
fully effect the terms of this Loan Agreement, the Promissory Note, the Pledge
Agreement, the other Loan Documents and any other agreements, instruments and
documents delivered pursuant hereto or in connection with the Loan.
SECTION 6.7 NOTICES.
11
Except as otherwise specifically provided for herein, all
notices, requests, reports and other communications pursuant to this Loan
Agreement shall be in writing, either by letter (delivered by hand or commercial
messenger service or sent by registered or certified mail, return receipt
requested, except for routine reports delivered in compliance with Article VI
hereof which may be sent by ordinary first-class mail) or telex or facsimile,
addressed as follows:
(a) If to the Borrower:
Warwick Community Bancorp, Inc.
Employee Stock Ownership Plan Trust
c/o The Warwick Savings Bank
00 Xxxxxxx Xxxxxx
Xxxxxxx, Xxx Xxxx 00000-0000
Attention: Xx. Xxxxxxx X. Xxxxxxx
President and Chief Executive
Officer
with copies to:
Marine Midland Bank
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxxx X. Xxxxxx
Vice President
Xxxxxxx Xxxxxxxx & Wood
Two World Trade Center
New York, New York 10048
Attention: Xxxxxxx X. Xxxxxxxxxx, Esq.
Helm, Shapiro, Anito & XxXxxx, P.C.
00 Xxxxxxxxx Xxxxx Xxxxxxxxx
Xxxxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
(b) If to the Lender:
Warwick Community Bancorp, Inc.
00 Xxxxxxx Xxxxxx
Xxxxxxx, Xxx Xxxx 00000-0000
Attention: Xx. Xxxxxxx X. Xxxxxxx
President And Chief
Executive Officer
12
with a copy to:
Xxxxxxx Xxxxxxxx & Wood
Two World Trade Center
New York, New York 10048
Attention: Xxxxxxx X. XxXxxxxxxx, Esq.
Any notice, request or communication hereunder shall be deemed to have been
given on the day on which it is delivered by hand or by commercial messenger
service, or sent by telex or facsimile, to such party at its address specified
above, or, if sent by mail, on the third Business Day after the day deposited in
the mail, postage prepaid, addressed as aforesaid. Any party may change the
person or address to whom or which notices are to be given hereunder, by notice
duly given hereunder; PROVIDED, HOWEVER, that any such notice shall be deemed to
have been given only when actually received by the party to whom it is
addressed.
SECTION 6.8 COUNTERPARTS.
This Loan Agreement may be signed in any number of
counterparts which, when taken together, shall constitute one and the same
document.
SECTION 6.9 CONSTRUCTION; GOVERNING LAW.
The headings used in the table of contents and in this Loan
Agreement are for convenience only and shall not be deemed to constitute a part
hereof. All uses herein of any gender or of singular or plural terms shall be
deemed to include uses of the other genders or plural or singular terms, as the
context may require. All references in this Loan Agreement to an Article or
section shall be to an Article or section of this Loan Agreement, unless
otherwise specified. This Loan Agreement, the Promissory Note, the Pledge
Agreement and the other Loan Documents shall be governed by, and construed and
interpreted in accordance with, the laws of the State of New York.
13
SECTION 6.10 SEVERABILITY.
Wherever possible, each provision of this Loan Agreement shall
be interpreted in such manner as to be effective and valid under applicable law;
however, the provisions of this Loan Agreement are severable, and if any clause
or provision hereof shall be held invalid or unenforceable in whole or in part
in any jurisdiction, then such invalidity or unenforceability shall affect only
such clause or provision, or part thereof, in such jurisdiction and shall not in
any manner affect such clause or provision in any other jurisdiction, or any
other clause or provision in this Loan Agreement in any jurisdiction. Each of
the covenants, agreements and conditions contained in this Loan Agreement is
independent, and compliance by a party with any of them shall not excuse
non-compliance by such party with any other. The Borrower shall not take any
action the effect of which shall constitute a breach or violation of any
provision of this Loan Agreement.
SECTION 6.11 BINDING EFFECT; NO ASSIGNMENT OR DELEGATION.
This Loan Agreement shall be binding upon and inure to the
benefit of the Borrower and its successors and the Lender and its successors and
assigns. The rights and obligations of the Borrower under this Agreement shall
not be assigned or delegated without the prior written consent of the Lender,
and any purported assignment or delegation without such consent shall be void.
IN WITNESS WHEREOF, the parties hereto have caused this Loan
Agreement to be duly executed as of the date first above written.
WARWICK COMMUNITY BANCORP, INC.
EMPLOYEE STOCK OWNERSHIP PLAN TRUST
BY: MARINE MIDLAND BANK, AS TRUSTEE
BY: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
TITLE: Vice President
---------------------------------
WARWICK COMMUNITY BANCORP, INC.
BY: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxxx
President and Chief Executive
Officer
14
EXHIBIT A
TO LOAN AGREEMENT
BY AND BETWEEN
WARWICK COMMUNITY BANCORP, INC.
EMPLOYEE STOCK OWNERSHIP PLAN TRUST
AND
WARWICK COMMUNITY BANCORP, INC.
FORM OF PROMISSORY NOTE
For the "Principal Amount," Warwick, New York
as defined below December 23, 1997
FOR VALUE RECEIVED, the undersigned, Warwick Community
Bancorp, Inc. Employee Stock Ownership Plan Trust ("Borrower"), acting by and
through its Trustee, Marine Midland Bank ("Trustee"), hereby promises to pay to
the order of Warwick Community Bancorp, Inc. ("Lender") the "Principal Amount,"
as determined under the Loan Agreement made and entered into between the
Borrower and the Lender as of December 23, 1997 ("Loan Agreement") pursuant to
which this Promissory Note is issued, payable in ten equal annual installments,
commencing on the last Business Day of December, 1997 and continuing on the last
Business Day of December of each subsequent calendar year until the last
Business Day of December, 2006, at which time the entire Principal Amount then
outstanding and all accrued interest shall become due and payable; PROVIDED,
HOWEVER, that the Borrower shall not be required to make any payment of
principal due to be made in any Plan Year to the extent that (i) following such
payment, the consolidated return on average assets of Warwick Community Bancorp,
Inc. for such Plan Year, excluding the contribution by Warwick Community
Bancorp, Inc. to The Warwick Savings Foundation ("Foundation"), would be less
than one-half of one percent (0.5%) or the consolidated return on average equity
for such Plan Year, excluding the contribution by Warwick Community Bancorp,
Inc. to the Foundation, would be less than four percent (4%) or (ii) such
payment would not be deductible for federal income tax purposes for such Plan
Year under section 404 of the Code. Any payment not required to be made pursuant
to the clause (i) of the above provision shall be deferred to and be payable on
the earlier of the tenth (10th) anniversary of the loan origination date or the
last day of the first Plan Year in which such proviso would not apply to
alleviate a requirement of payment; and payment not required to be made pursuant
to clause (ii) of the above proviso shall be deferred to and be payable on the
last day of the first Plan Year in which such payment may be made on a tax
deductible basis.
This Promissory Note shall bear interest at the rate per annum
set forth or established under the Loan Agreement, such interest to be payable
quarterly in arrears, commenc ing on December 31, 1997 and thereafter on the
last Business Day of each calendar quarter and upon payment or prepayment of
this Promissory Note.
A-2
Anything herein to the contrary notwithstanding, the
obligation of the Borrower to make payments of interest shall be subject to the
limitation that payments of interest shall not be required to be made to the
Lender to the extent that the Lender's receipt thereof would not be permissible
under the law or laws applicable to the Lender limiting rates of interest which
may be charged or collected by the Lender. Any such payments of interest which
are not made as a result of the limitation referred to in the preceding sentence
shall be made by the Borrower to the Lender on the earliest interest payment
date or dates on which the receipt thereof would be permissible under the laws
applicable to the Lender limiting rates of interest which may be charged or
collected by the Lender. Such deferred interest shall not bear interest.
Payments of both principal and interest on this Promissory
Note are to be made at the principal office of the Lender at 00 Xxxxxxx Xxxxxx,
Xxxxxxx, Xxx Xxxx 00000-0000 or such other place as the holder hereof shall
designate to the Borrower in writing, in lawful money of the United States of
America in immediately available funds.
Failure to make any payment of principal on this Promissory
Note when due, or failure to make any payment of interest on this Promissory
Note not later than five (5) Business Days after the date when due, shall
constitute a default hereunder, whereupon the principal amount of and accrued
interest on this Promissory Note shall immediately become due and payable in
accordance with the terms of the Loan Agreement.
This Promissory Note is subject, in all respects, to the terms
and provisions of the Loan Agreement, which is incorporated herein by this
reference, and is secured by a Pledge Agreement between the Borrower and the
Lender of even date herewith and is entitled to the benefits thereof.
WARWICK COMMUNITY BANCORP, INC.
EMPLOYEE STOCK OWNERSHIP PLAN TRUST
BY: MARINE MIDLAND BANK, AS TRUSTEE
AND NOT IN ANY OTHER CAPACITY
BY:
---------------------------------
TITLE:
------------------------------
EXHIBIT B
TO LOAN AGREEMENT
BY AND BETWEEN
WARWICK COMMUNITY BANCORP, INC.
EMPLOYEE STOCK OWNERSHIP PLAN TRUST
AND
WARWICK COMMUNITY BANCORP, INC.
FORM OF PLEDGE AGREEMENT
This PLEDGE AGREEMENT ("Pledge Agreement") is made as of the
23rd day of December, 1997, by and between the WARWICK COMMUNITY BANCORP, INC.
EMPLOYEE STOCK OWNERSHIP PLAN TRUST, acting by and through its Trustee, MARINE
MIDLAND BANK, a banking corporation organized under the laws of the State of New
York and having office at 000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Pledgor"),
and WARWICK COMMUNITY BANCORP, INC., corporation organized and existing under
the laws of the State of New York, having an office at 00 Xxxxxxx Xxxxxx,
Xxxxxxx, Xxx Xxxx 00000-0000 ("Pledgee").
W I T N E S S E T H :
WHEREAS, this Pledge Agreement is being executed and delivered
to the Pledgee pursuant to the terms of a Loan Agreement of even date herewith
("Loan Agreement"), by and between the Pledgor and the Pledgee;
NOW, THEREFORE, in consideration of the mutual agreements
contained herein and in the Loan Agreement, the parties hereto do hereby
covenant and agree as follows:
SECTION 1. DEFINITIONS. The following definitions shall apply
for purposes of this Pledge Agreement, except to the extent that a different
meaning is plainly indicated by the context; all capitalized terms used but not
defined herein shall have the respective meanings assigned to them in the Loan
Agreement:
(a) COLLATERAL shall mean the Pledged Shares and, subject to
section 5 hereof, and to the extent permitted by applicable law, all
rights with respect thereto, and all proceeds of such Pledged Shares
and rights.
(b) EVENT OF DEFAULT shall mean an event so defined in the
Loan Agreement.
(c) LIABILITIES shall mean all the obligations of the Pledgor
to the Pledgee, howsoever created, arising or evidenced, whether direct
or indirect, absolute or contingent, now or hereafter existing, or due
or to become due, under the Loan Agreement and the Promissory Note.
B-2
(d) PLEDGED SHARES shall mean all the shares of Common Stock
of Warwick Community Bancorp, Inc. purchased by the Pledgor with the
proceeds of the loan made by the Pledgee to the Pledgor pursuant to the
Loan Agreement, but excluding any such shares previously released
pursuant to section 4.
SECTION 2. PLEDGE. To secure the payment of and performance
of all the Liabilities, the Pledgor hereby pledges to the Pledgee, and grants to
the Pledgee a security interest in and lien upon, the Collateral.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE PLEDGOR. The
Pledgor represents, warrants, and covenants to the Pledgee as follows:
(a) the execution, delivery and performance of this Pledge
Agreement and the pledging of the Collateral hereunder do not and will
not conflict with, result in a violation of, or constitute a default
under any agreement binding upon the Pledgor;
(b) the Pledged Shares are and will continue to be owned by
the Pledgor free and clear of any liens or rights of any other person
except the lien hereunder and under the Loan Agreement in favor of the
Pledgee, and the security interest of the Pledgee in the Pledged Shares
and the proceeds thereof is and will continue to be prior to and senior
to the rights of all others;
(c) this Pledge Agreement is the legal, valid, binding and
enforceable obligation of the Pledgor in accordance with its terms;
(d) the Pledgor shall, from time to time, upon request of the
Pledgee, promptly deliver to the Pledgee such stock powers, proxies,
and similar documents, satisfactory in form and substance to the
Pledgee, with respect to the Collateral as the Pledgee may reasonably
request; and
(e) subject to the first sentence of section 4(b), the Pledgor
shall not, so long as any Liabilities are outstanding, sell, assign,
exchange, pledge or otherwise transfer or encumber any of its rights in
and to any of the Collateral.
SECTION 4. ELIGIBLE COLLATERAL.
(a) As used herein the term "Eligible Collateral" shall mean
that amount of Collateral which has an aggregate fair market value equal to the
amount by which the Pledgor is in default (without regard to any amounts owing
solely as the result of an acceleration of the Loan Agreement) or such lesser
amount of Collateral as may be required pursuant to section 2 of this Pledge
Agreement.
(b) The Pledged Shares shall be released from this Pledge
Agreement in a manner conforming to the requirements of Treasury Regulations
Section 54.4975-7(b)(8), as the same may be from time to time amended or
supplemented, and section 6.4(a) of the ESOP. Subject to such Regulations, the
Pledgee may from time to time, after any Default or Event of Default, and
without prior notice to the Pledgor, transfer all or any part of the Eligible
Collateral
B-3
into the name of the Pledgee or its nominee, with or without disclosing that
such Eligible Collateral is subject to any rights of the Pledgor and may from
time to time, whether before or after any of the Liabilities shall become due
and payable, without notice to the Pledgor, take all or any of the following
actions: (i) notify the parties obligated on any of the Eligible Collateral to
make payment to the Pledgee of any amounts due or to become due thereunder, (ii)
release or exchange all or any part of the Eligible Collateral, or compromise or
extend or renew for any period (whether or not longer than the original period)
any obligations of any nature of any party with respect thereto, and (iii) take
control of any proceeds of the Eligible Collateral.
SECTION 5. DELIVERY.
(a) The Pledgor shall deliver to the Pledgee upon execution of
this Pledge Agreement (i) an assignment by the Pledgor of all the Pledgor's
rights to and interest in the Pledged Shares and (ii) an irrevocable proxy, in
form and substance satisfactory to the Pledgee, signed by the Pledgor with
respect to the Pledged Shares.
(b) So long as no Default or Event of Default shall have
occurred and be continu ing, (i) the Pledgor shall be entitled to exercise any
and all voting and other rights pertaining to the Collateral or any part thereof
for any purpose not inconsistent with the terms of this Pledge Agreement, and
(ii) the Pledgor shall be entitled to receive any and all cash dividends or
other distributions paid in respect of the Collateral.
SECTION 6. EVENTS OF DEFAULT.
(a) If a Default or an Event of Default shall be existing, in
addition to the rights it may have under the Loan Agreement, the Promissory Note
and this Pledge Agreement, or by virtue of any other instrument, (i) the Pledgee
may exercise, with respect to the Eligible Col lateral, from time to time any
rights and remedies available to it under the Uniform Commercial Code as in
effect from time to time in the State of New York or otherwise available to it
and (ii) the Pledgee shall have the right, for and in the name, place and stead
of the Pledgor, to execute endorsements, assignments, stock powers and other
instruments of conveyance or transfer with respect to all or any of the Eligible
Collateral. Written notification of intended disposition of any of the Eligible
Collateral shall be given by the Pledgee to the Pledgor at least three (3)
Business Days before such disposition. Subject to section 13 below, any proceeds
of any disposition of Eligible Collateral may be applied by the Pledgee to the
payment of expenses in connection with the Eligible Collateral, including,
without limitation, reasonable attorneys' fees and legal expen ses, and any
balance of such proceeds may be applied by the Pledgee toward the payment of
such of the Liabilities as are in Default, and in such order of application, as
the Pledgee may from time to time elect. No action of the Pledgee permitted
hereunder shall impair or affect its rights in and to the Eligible Collateral.
All rights and remedies of the Pledgee expressed hereunder are in addition to
all other rights and remedies possessed by it, including, without limitation,
those contained in the documents referred to in the definition of Liabilities in
section 1 hereof.
(b) In any sale of any of the Eligible Collateral after a
Default or an Event of Default shall have occurred, the Pledgee is hereby
authorized to comply with any limitation or restriction in connection with such
sale as it may be advised by counsel is necessary in order to avoid any
violation of applicable law (including, without limitation, compliance with such
B-4
procedures as may restrict the number of prospective bidders and purchasers or
further restrict such prospective bidders or purchasers to persons who will
represent and agree that they are purchasing for their own account for
investment and not with a view to the distribution or resale of such Eligible
Collateral), or in order to obtain such required approval of the sale or of the
purchase by any governmental regulatory authority or official, and the Pledgor
further agrees that such compliance shall not result in such sale's being
considered or deemed not to have been made in a commercially reasonable manner,
nor shall the Pledgee be liable or accountable to the Pledgor for any discount
allowed by reason of the fact that such Eligible Collateral is sold in
compliance with any such limitation or restriction.
SECTION 7. PAYMENT IN FULL. Upon the payment in full of all
outstanding Liabili ties, this Pledge Agreement shall terminate and the Pledgee
shall forthwith assign, transfer and deliver to the Pledgor, against receipt and
without recourse to the Pledgee, all Collateral then held by the Pledgee
pursuant to this Pledge Agreement.
SECTION 8. NO WAIVER. No failure or delay on the part of the
Pledgee in exercising any right or remedy hereunder or under any other document
which confers or grants any rights in the Pledgee in respect of the Liabilities
shall operate as a waiver thereof nor shall any single or partial exercise of
any such right or remedy preclude any other or further exercise thereof or the
exercise of any other right or remedy of the Pledgee.
SECTION 9. BINDING EFFECT; NO ASSIGNMENT OR DELEGATION. This
Pledge Agreement shall be binding upon and inure to the benefit of the Pledgor,
the Pledgee and their respective suc cessors and assigns, except that the
Pledgor may not assign or transfer its rights hereunder without the prior
written consent of the Pledgee (which consent shall not unreasonably be
withheld). Each duty or obligation of the Pledgor to the Pledgee pursuant to the
provisions of this Pledge Agreement shall be performed in favor of any person or
entity designated by the Pledgee, and any duty or obligation of the Pledgee to
the Pledgor may be performed by any other person or entity designated by the
Pledgee.
SECTION 10. GOVERNING LAW. Except to the extent preempted by
federal law, this Pledge Agreement shall be governed by and construed in
accordance with the laws of the State of New York and interpreted without regard
to conflicts of law principles.
SECTION 11. NOTICES. All notices, requests, instructions or
documents hereunder shall be in writing and delivered personally or sent by
United States mail, registered or certified, return receipt requested, with
proper postage prepaid, as follows:
(a) If to the Pledgee:
Warwick Community Bancorp, Inc.
00 Xxxxxxx Xxxxxx
Xxxxxxx, Xxx Xxxx 00000-0000
Attention: Xx. Xxxxxxx X. Xxxxxxx
President and Chief Executive
Officer
with a copy to:
B-5
Xxxxxxx Xxxxxxxx & Wood
Two World Trade Center, 38th Floor
New York, New York 10048
Attention: Xxxxxxx X. Xxxxxxxxxx, Esq.
(b) If to the Pledgor:
Warwick Community Bancorp, Inc.
Employee Stock Ownership Plan Trust
c/o The Warwick Savings Bank
00 Xxxxxxx Xxxxxx
Xxxxxxx, Xxx Xxxx 00000-0000
Attention: Xx. Xxxxxxx X. Xxxxxxx
President and Chief Executive
Officer
with copies to:
Marine Midland Bank
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxxx X. Xxxxxx
Vice President
Xxxxxxx Xxxxxxxx & Xxxx
Two World Trade Center, 38th Floor
New York, New York 10048
Attention: Xxxxxxx X. Xxxxxxxxxx, Esq.
Helm, Shapiro, Anito & XxXxxx, P.C.
00 Xxxxxxxxx Xxxxx Xxxxxxxxx
Xxxxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
Any notice, request or communication hereunder shall be deemed to have been
given on the day on which it is delivered by hand or by commercial messenger
service, or sent by telex or facsimile, to such party at its address specified
above, or, if sent by mail, on the third Business Day after the day deposited in
the mail, postage prepaid, addressed as aforesaid. Any party may change the
person or address to whom or which notices are to be given hereunder, by notice
duly given hereunder; PROVIDED, HOWEVER, that any such notice shall be deemed to
have been given only when actually received by the party to whom it is
addressed.
SECTION 12. INTERPRETATION. Wherever possible each provision
of this Pledge Agreement shall be interpreted in such manner as to be effective
and valid under applicable law, but if any provision hereof shall be prohibited
by or invalid under such law, such provisions shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions hereof.
B-6
SECTION 13. CONSTRUCTION. All provisions hereof shall be
construed so as to maintain (a) the ESOP as a qualified leveraged employee stock
ownership plan under section 401(a) and 4975(e)(7) of the Internal Revenue Code
of 1986, as amended (the "Code"), (b) the Trust as exempt from taxation under
section 501(a) of the Code and (c) the Trust Loan as an exempt loan under
section 54.4975-7(b) of the Treasury Regulations and as described in Department
of Labor Regulation section 2550.408b-3.
IN WITNESS WHEREOF, this Pledge Agreement has been duly
executed by the parties hereto as of the day and year first above written.
WARWICK COMMUNITY BANCORP, INC.
EMPLOYEE STOCK OWNERSHIP PLAN TRUST
BY: MARINE MIDLAND BANK, AS TRUSTEE
AND NOT IN ANY OTHER CAPACITY
BY:
-----------------------------------
TITLE:
---------------------------------
WARWICK COMMUNITY BANCORP, INC.
BY:
-----------------------------------
XXXXXXX X. XXXXXXX
PRESIDENT AND CHIEF EXECUTIVE OFFICER
EXHIBIT C
TO LOAN AGREEMENT
BY AND BETWEEN
WARWICK COMMUNITY BANCORP, INC.
EMPLOYEE STOCK OWNERSHIP PLAN TRUST
AND
WARWICK COMMUNITY BANCORP, INC.
FORM OF ASSIGNMENT
In consideration of the loan made by Warwick Community
Bancorp, Inc. ("Lender") to the Warwick Community Bancorp, Inc. Employee Stock
Ownership Plan Trust ("Borrower") pursuant to the Loan Agreement of even date
herewith between the Lender and the Borrower ("Loan Agreement") and pursuant to
the Pledge Agreement between the Lender and the Borrower of even date herewith
pertaining thereto, the undersigned Borrower hereby transfers, assigns and
conveys to Lender, subject to the terms and provisions of the Loan Agreement,
all its right, title and interest in and to those certain shares of common stock
of the Lender which it shall purchase with the proceeds of the loan made
pursuant to the Loan Agreement, and agrees to transfer and endorse to Lender the
certificates representing such shares as and when required pursuant to the Loan
Agreement or Pledge Agreement.
WARWICK COMMUNITY BANCORP, INC.
EMPLOYEE STOCK OWNERSHIP PLAN TRUST
BY: MARINE MIDLAND BANK, AS TRUSTEE
AND NOT IN ANY OTHER CAPACITY
BY:
TITLE:
DECEMBER 23, 1997
EXHIBIT D
TO LOAN AGREEMENT
BY AND BETWEEN
WARWICK COMMUNITY BANCORP, INC.
EMPLOYEE STOCK OWNERSHIP PLAN TRUST
AND
WARWICK COMMUNITY BANCORP, INC.
FORM OF IRREVOCABLE PROXY
In consideration of the loan made by Warwick Community Bancorp, Inc.
("Lender") to the Warwick Community Bancorp, Inc. Employee Stock Ownership Plan
Trust ("Borrower") pursuant to the Loan Agreement of even date herewith between
the Lender and the Borrower ("Loan Agreement") and the Pledge Agreement between
the Lender and the Borrower of even date herewith pertaining thereto, and
subject to the terms and conditions of the Loan Agreement, the undersigned
Borrower hereby appoints the Lender as its proxy, with power of substitution, to
represent and to vote those certain shares of common stock of the Lender which
it shall purchase with the proceeds of the loan made pursuant to the Loan
Agreement. This proxy, when properly executed, shall be irrevocable and shall
give the Lender full power and authority to vote on any and all matters for
which other holders of shares of common stock of the Lender are entitled to
vote.
WARWICK COMMUNITY BANCORP, INC.
EMPLOYEE STOCK OWNERSHIP PLAN TRUST
BY: MARINE MIDLAND BANK, AS TRUSTEE
AND NOT IN ANY OTHER CAPACITY
BY:
----------------------------------
TITLE:
--------------------------------
DECEMBER 23, 1997
