LOAN AGREEMENT
BY AND BETWEEN
FIRST FEDERAL SAVINGS BANK OF FORT DODGE
EMPLOYEE STOCK OWNERSHIP PLAN TRUST
AND
NORTH CENTRAL BANCSHARES, INC.
MADE AND ENTERED INTO AS OF
SEPTEMBER 3, 1996
TABLE OF CONTENTS
Page
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ARTICLE I
---------
DEFINITIONS
-----------
Section 1.1 Business Day.................................................. 1
Section 1.2 Code.......................................................... 2
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 Pledge Agreement.............................................. 2
Section 1.10 Principal Amount.............................................. 2
Section 1.11 Promissory Note............................................... 2
Section 1.12 Register...................................................... 2
ARTICLE II
----------
THE LOAN; PRINCIPAL AMOUNT;
INTEREST; SECURITY; INDEMNIFICATION
-----------------------------------
Section 2.1 The Loan; Principal Amount.................................... 3
Section 2.2 Interest...................................................... 3
Section 2.3 Promissory Note............................................... 4
Section 2.4 Payment of 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........................... 6
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............................. 7
Section 3.5 Purchases of Common Stock..................................... 8
Page
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ARTICLE IV
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REPRESENTATIONS AND WARRANTIES OF THE LENDER
--------------------------------------------
Section 4.1 Power; Authority; Consents.................................... 8
Section 4.2 Due Execution; Validity; Enforceability....................... 8
Section 4.3 ESOP; Contributions........................................... 8
Section 4.4 Trustee; Committee............................................ 9
Section 4.5 Compliance with Laws; Actions................................. 9
ARTICLE V
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EVENTS OF DEFAULT
-----------------
Section 5.1 Events of Default Under Loan Agreement........................ 9
Section 5.2 Lender's Rights upon Event of Default......................... 10
ARTICLE VI
----------
MISCELLANEOUS PROVISIONS
------------------------
Section 6.1 Payments Due to the Lender.................................... 10
Section 6.2 Payments...................................................... 10
Section 6.3 Survival...................................................... 11
Section 6.4 Modifications, Consents and Waivers; Entire Agreement......... 11
Section 6.5 Remedies Cumulative........................................... 11
Section 6.6 Further Assurances; Compliance with Covenants................. 11
Section 6.7 Notices....................................................... 11
Section 6.8 Counterparts.................................................. 13
Section 6.9 Construction; Governing Law................................... 13
Section 6.10 Severability.................................................. 13
Section 6.11 Binding Effect; No assignment or Delegation................... 13
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
LOAN AGREEMENT
--------------
This LOAN AGREEMENT ("Loan Agreement") is made and entered into as of
the 3rd day of September, 1996, by and between the FIRST FEDERAL SAVINGS BANK OF
FORT DODGE EMPLOYEE STOCK OWNERSHIP PLAN TRUST ("Borrower"), a trust forming
part of the First Federal Savings Bank of Fort Dodge Employee Stock Ownership
Plan ("ESOP"), acting through and by its Trustee, FIRST BANKERS TRUST COMPANY,
N.A. ("Trustee"); and NORTH CENTRAL BANCSHARES, INC. ("Lender"), a corporation
organized and existing under the laws of the state of Iowa, having an office at
000 Xxxxxxx Xxxxxx, Xxxx Xxxxx, Xxxx 00000.
W I T N E S S E T H :
-------------------
WHEREAS, the Borrower is a party to a Loan Agreement dated August __,
1994 with Northwest Savings, successor in interest to Nationar, pursuant to
which the Borrower obtained a loan with an outstanding principal balance of
Seven Hundred Forty-two Thousand Dollars ($742,000) on the date hereof ("First
ESOP Loan"), secured on the date hereof by a collateral pledge of 83,348 shares
of common stock of the Lender purchased with the proceeds of the First ESOP Loan
("First ESOP Loan Shares"); and
WHEREAS, the Borrower is a party to a Loan Agreement dated March 20,
1996 with the Lender, pursuant to which the Borrower obtained a loan with an
outstanding principal balance of Eight Hundred Nineteen Thousand Dollars
($819,000) on the date hereof ("Second ESOP Loan") secured by a collateral
pledge of 84,000 shares of common stock of the Lender purchased with the
proceeds of the Second ESOP Loan ("Second ESOP Loan Shares"); and
WHEREAS, the Borrower wishes to refinance the First ESOP Loan and the
Second ESOP Loan with the Lender without extending the repayment schedules
therefor; and
WHEREAS, the Lender is willing to accommodate such refinancing;
NOW, THEREFORE, the Borrower and the Lender hereby agree as follows:
ARTICLE I
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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 Iowa.
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SECTION 1.2 CODE means the Internal Revenue Code of 1986 (including
the corresponding 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.
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 V.
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 PLEDGE AGREEMENT means the agreement described in section
2.8(a).
SECTION 1.10 PRINCIPAL AMOUNT means the face amount of the Promissory
Note, determined as set forth in section 2.1(c).
SECTION 1.11 PROMISSORY NOTE means the promissory note described in
section 2.3.
SECTION 1.12 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 on September 3,
1996 One Million Five Hundred Sixty-one Thousand Dollars ($1,561,000.00)
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(b) 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(a); 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.
(c) As soon as practicable after its receipt of the Principal Amount,
the Borrower shall use the entire Principal Amount to satisfy its outstanding
obligations pursuant to the First ESOP Loan and the Second ESOP Loan.
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
seven percent (7%) 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 continuing on the last Business Day of
each calendar quarter thereafter and upon the payment or prepayment 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 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.
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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 LOAN.
The Principal Amount of the Loan shall be repaid in quarterly
installments payable on the last Business Day of each calendar quarter beginning
after the date of this Agreement. The amount of each such quarterly installment
shall be as follows:
=======================================================================================
Month/Year Installment Month/Year Installment Month/Year Installment
---------------------------------------------------------------------------------------
September 1996 45,000 December 1999 45,000 March 2003 45,000
---------------------------------------------------------------------------------------
December 1996 45,000 March 2000 45,000 June 2003 45,000
---------------------------------------------------------------------------------------
March 1997 45,000 June 2000 45,000 September 2003 45,000
---------------------------------------------------------------------------------------
June 1997 45,000 September 2000 45,000 December 2003 45,000
---------------------------------------------------------------------------------------
September 1997 45,000 December 2000 45,000 March 2004 43,000
---------------------------------------------------------------------------------------
December 1997 45,000 March 2001 45,000 June 2004 21,000
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March 1998 45,000 June 2001 45,000 September 2004 21,000
---------------------------------------------------------------------------------------
June 1998 45,000 September 2001 45,000 December 2004 21,000
---------------------------------------------------------------------------------------
September 1998 45,000 December 2001 45,000 March 2005 21,000
---------------------------------------------------------------------------------------
December 1998 45,000 March 2002 45,000 June 2005 21,000
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March 1999 45,000 June 2002 45,000 September 2005 21,000
---------------------------------------------------------------------------------------
June 1999 45,000 September 2002 45,000 December 2005 21,000
---------------------------------------------------------------------------------------
September 1999 45,000 December 2002 45,000 March 19, 2006 21,000
=======================================================================================
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., Iowa time, on the date on which
such payment shall become due. Any such payment made on such date
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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 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 purposes of
repaying all outstanding principal on the First ESOP Loan and Second ESOP Loan.
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
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in, the Common Stock purchased with the proceeds of the First ESOP Loan and
Second ESOP Loan and not allocated to any participant account on the date
hereof, 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 equal to the product of: (i) the number of shares of Common
Stock purchased with the proceeds of the Loan and pledged as Collateral
immediately before the release is effected; multiplied by (ii) a fraction, the
numerator of which is the aggregate amount of the principal and interest
payments (other than principal payments made upon any refinancing of the Loan,
the First ESOP Loan and the Second ESOP Loan) made with respect to the Loan, the
First ESOP Loan and the Second ESOP Loan for such calendar year, and the
denominator of which is the aggregate amount of all of principal and interest
remaining to be paid with respect to the Loan, the First ESOP Loan and the
Second ESOP Loan as of the first day of such calendar year.
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 exchanged so that there will not be any loss
or gain of interest on the note surrendered. Such new 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:
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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 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.
The Borrower has 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.
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. 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
--------------------------------------------
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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 Bank 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 Bank 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 Bank 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.
SECTION 4.4 TRUSTEE; COMMITTEE.
The Bank has taken such action as is required to be taken by it to
duly appoint the Trustee and the members of the Committee. The Bank expressly
acknowledges and agrees that this Loan Agreement, the Promissory Note and the
Pledge Agreement are being executed by the Trustees not in their 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.
-9-
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.
(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.
--------------------------
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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 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
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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.
-------
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 telecopier, addressed as
follows:
(a) If to the Borrower:
First Federal Savings Bank of Fort Dodge
Employee Stock Ownership Plan Trust
c/o First Bankers Trust Company, N.W.
0000 Xxxxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxx Xxxxx
Trust Officer
with copies to:
Xxxxxxx Xxxxxxxx & Xxxx
Two World Trade Center, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: W. Xxxxxx Xxxxxx, Esq.
(b) If to the Lender:
North Central Bancshares, Inc.
000 Xxxxxxx Xxxxxx
Xxxx Xxxxx, Xxxx 00000
Attention: Xx. Xxxxx X. Xxxxxxx
-12-
President and Chief Executive Officer
-------------------------------------
with a copy to:
Xxxxxxx Xxxxxxxx & Wood
Two World Trade Center, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: W. Xxxxxx Xxxxxx, 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 telecopier, 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 provisions of federal law and, in the absence of controlling
federal law, the laws of the State of Iowa. The transaction evidenced by this
Loan Agreement is intended to constitute an exempt loan under section 408(b)(3)
of ERISA and section 4975(d)(3) of the Code and shall be construed and enforced
to effect such intention.
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
-13-
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.
-14-
IN WITNESS WHEREOF, the parties hereto have caused this Loan Agreement
to be duly executed as of the date first above written.
FIRST FEDERAL SAVINGS BANK OF FORT DODGE
EMPLOYEE STOCK OWNERSHIP PLAN TRUST
BY: FIRST BANKERS TRUST COMPANY, N.A., in its
capacity as trustee and not in any other
capacity
BY: /s/ Xxxxxx Xxxxx
------------------------------------------
Name: Xxxxxx Xxxxx
Title: Trust Officer
DATE: September 3, 1996
NORTH CENTRAL BANCSHARES, INC.
BY: /s/ Xxxxx X. Xxxxxxx
------------------------------------------
Xxxxx X. Xxxxxxx
President and Chief Executive Officer
DATE: September 3, 1996
PROMISSORY NOTE
---------------
$1,561,000 Fort Dodge, Iowa
PRINCIPAL AMOUNT September 3, 1996
FOR VALUE RECEIVED, the undersigned, First Federal Savings Bank of
Fort Dodge Employee Stock Ownership Plan Trust ("Borrower"), acting by and
through its Trustee, First Bankers Trust Company, N.A. ("Trustee"), hereby
promises to pay to the order of North Central Bancshares, Inc. ("Lender") One
Million Five Hundred Sixty-one Thousand Dollars ($1,561,000.00) payable in
accordance with the Loan Agreement made and entered into between the Borrower
and the Lender as of September 3, 1996, pursuant to which this Promissory Note
is issued, in quarterly installments as follows:
========================================================================================
Month/Year Installment Month/Year Installment Month/Year Installment
----------------------------------------------------------------------------------------
September 1996 45,000 December 1999 45,000 March 2003 45,000
----------------------------------------------------------------------------------------
December 1996 45,000 March 2000 45,000 June 2003 45,000
----------------------------------------------------------------------------------------
March 1997 45,000 June 2000 45,000 September 2003 45,000
----------------------------------------------------------------------------------------
June 1997 45,000 September 2000 45,000 December 2003 45,000
----------------------------------------------------------------------------------------
September 1997 45,000 December 2000 45,000 March 2004 43,000
----------------------------------------------------------------------------------------
December 1997 45,000 March 2001 45,000 June 2004 21,000
----------------------------------------------------------------------------------------
March 1998 45,000 June 2001 45,000 September 2004 21,000
----------------------------------------------------------------------------------------
June 1998 45,000 September 2001 45,000 December 2004 21,000
----------------------------------------------------------------------------------------
September 1998 45,000 December 2001 45,000 March 2005 21,000
----------------------------------------------------------------------------------------
December 1998 45,000 March 2002 45,000 June 2005 21,000
----------------------------------------------------------------------------------------
March 1999 45,000 June 2002 45,000 September 2005 21,000
----------------------------------------------------------------------------------------
June 1999 45,000 September 2002 45,000 December 2005 21,000
----------------------------------------------------------------------------------------
September 1999 45,000 December 2002 45,000 March 19, 2006 21,000
=======================================================================================
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, commencing on March 31, 1996 and thereafter on the last
Business Day of each calendar quarter and upon payment or prepayment of this
Promissory Note.
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
A-2
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 000 Xxxxxxx Xxxxxx, Xxxx Xxxxx,
Xxxx 00000 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 secured by a Pledge Agreement between the
Borrower and the Lender of even date herewith and is entitled to the benefits
thereof.
FIRST FEDERAL SAVINGS BANK OF FORT DODGE
EMPLOYEE STOCK OWNERSHIP PLAN TRUST
BY: FIRST BANKERS TRUST COMPANY, N.A., in its
capacity as Trustee and not in any other
capacity
BY: /s/ Xxxxxx Xxxxx
-----------------------------------------
Name: Xxxxxx Xxxxx
Title: Trust Officer
EXHIBIT B
---------
PLEDGE AGREEMENT
----------------
This PLEDGE AGREEMENT ("Pledge Agreement") is made as of the 3rd day
of September, 1996, by and between the FIRST FEDERAL SAVINGS BANK OF FORT DODGE
EMPLOYEE STOCK OWNERSHIP TRUST, acting by and through its Trustee, First Bankers
Trust Company, N.A. ("Pledgor"), and NORTH CENTRAL BANCSHARES, INC., a
corporation organized and existing under the laws of the State of Iowa, having
an office at 000 Xxxxxxx Xxxxxx, Xxxx Xxxxx, Xxxx 00000 ("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.
(d) Pledged Shares shall mean all the shares of Common Stock of North
Central Bancshares, Inc. purchased by the Pledgor with the proceeds of the
First ESOP Loan and the Second ESOP Loan, but excluding any such shares
previously released from encumbrance in accordance with the terms thereof.
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:
B-2
(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 subsequent 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 13
of this Pledge Agreement.
(b) The Pledged Shares shall be released from this Pledge Agreement by
the Pledgee, as of the date on which any payment or prepayment of the
Principal Amount is made by the Pledgor, in a number of shares of Common
Stock held as Collateral equal to the product of: (i) the number of shares
of Common Stock purchased with the proceeds of the Loan and pledged as
Collateral immediately before the release is effected; multiplied by (ii) a
fraction, the numerator of which is the aggregate amount of the principal
and interest payments on the Loan, the First ESOP Loan and the Second ESOP
Loan (other than principal payments made upon any refinancing) made for
such calendar year, and the denominator of which is the aggregate amount of
all of principal and interest remaining to be paid on the Loan, the First
ESOP Loan and the Second ESOP Loan as of the first day of such calendar
year, and in a manner conforming to the requirements of Treasury
Regulations Section 54.4957-7(b)(8), as the same may be from time to time
amended or supplemented. 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
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
B-3
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 continuing, (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 Collateral, 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 attorney's fees and legal expenses, 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,
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
B-4
necessary in order to avoid any violation of applicable law (including,
without limitation, compliance with such 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 Liabilities, 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 successors and assigns, except that the Pledgor may
not assign or transfer its right 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. This Pledge Agreement shall be governed
by and construed in accordance with the provisions of federal law, and in the
absence of controlling federal law, the laws of the State of Iowa applicable to
agreements to be performed wholly within the State of Iowa.
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:
B-5
(a) If to the Pledgee:
North Central Bancshares, Inc.
000 Xxxxxxx Xxxxxx
Xxxx Xxxxx, Xxxx 00000
Attention: Xx. Xxxxx X. Xxxxxxx
President and Chief Executive Officer
-------------------------------------
with a copy to:
Xxxxxxx Xxxxxxxx & Wood
Two World Trade Center, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: W. Xxxxxx Xxxxxx, Esq.
----------------------
(b) If to the Pledgor:
First Federal Savings Bank of Fort Dodge
Employee Stock Ownership Plan Trust
c/o First Bankers Trust Company, N.A.
0000 Xxxxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxx Xxxxx
Trust Officer
-------------
with copies to:
Xxxxxxx Xxxxxxxx & Xxxx
Two World Trade Center, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: W. Xxxxxx Xxxxxx, Esq.
----------------------
or at such other address as either of the parties may designate by written
notice to the other party. If delivered personally, the date on which the
notice, request, instruction or document is delivered shall be the date on which
such delivery is made, and, if delivered by mail, the date on which such notice,
request, instruction or document is deposited in the mail shall be the date of
delivery. Each notice, request, instruction or document shall bear the date on
which it is delivered.
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
(the "Code"), (b) the Trust as exempt from taxation under section 501(a) of the
Code and (c) the 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.
B-7
IN WITNESS WHEREOF, this Pledge Agreement has been duly executed by
the parties hereto as of the day and year first above written.
FIRST FEDERAL SAVINGS BANK OF FORT DODGE
EMPLOYEE STOCK OWNERSHIP TRUST
By: FIRST BANKERS TRUST COMPANY, N.A., in its
capacity as Trustee and not in any other capacity
By: /s/ Xxxxxx Xxxxx
------------------
Name: Xxxxxx Xxxxx
Title: Trust Officer
Date: September 3, 1996
NORTH CENTRAL BANCSHARES, INC.
By: /s/ Xxxxx X. Xxxxxxx
----------------------
Xxxxx X. Xxxxxxx
President and Chief Executive Officer
Date: September 3, 1996
PROMISSORY NOTE
---------------
$1,561,000 Fort Dodge, Iowa
PRINCIPAL AMOUNT September 3, 1996
FOR VALUE RECEIVED, the undersigned, First Federal Savings Bank of
Fort Dodge Employee Stock Ownership Plan Trust ("Borrower"), acting by and
through its Trustee, First Bankers Trust Company, N.A. ("Trustee"), hereby
promises to pay to the order of North Central Bancshares, Inc. ("Lender") One
Million Five Hundred Sixty-one Thousand Dollars ($1,561,000.00) payable in
accordance with the Loan Agreement made and entered into between the Borrower
and the Lender as of September 3, 1996, pursuant to which this Promissory Note
is issued, in quarterly installments as follows:
Month/Year Installment Month/Year Installment Month/Year Installment
September 1996 45,000 December 1999 45,000 March 2003 45,000
December 1996 45,000 March 2000 45,000 June 2003 45,000
March 1997 45,000 June 2000 45,000 September 2003 45,000
June 1997 45,000 September 2000 45,000 December 2003 45,000
September 1997 45,000 December 2000 45,000 March 2004 43,000
December 1997 45,000 March 2001 45,000 June 2004 21,000
March 1998 45,000 June 2001 45,000 September 2004 21,000
June 1998 45,000 September 2001 45,000 December 2004 21,000
September 1998 45,000 December 2001 45,000 March 2005 21,000
December 1998 45,000 March 2002 45,000 June 2005 21,000
March 1999 45,000 June 2002 45,000 September 2005 21,000
June 1999 45,000 September 2002 45,000 December 2005 21,000
September 1999 45,000 December 2002 45,000 March 19, 2006 21,000
=======================================================================================
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, commencing on March 31, 1996 and thereafter on the last
Business Day of each calendar quarter and upon payment or prepayment of this
Promissory Note.
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 000 Xxxxxxx Xxxxxx, Xxxx Xxxxx,
Xxxx 00000 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 secured by a Pledge Agreement between the
Borrower and the Lender of even date herewith and is entitled to the benefits
thereof.
FIRST FEDERAL SAVINGS BANK OF FORT DODGE
EMPLOYEE STOCK OWNERSHIP PLAN TRUST
BY: FIRST BANKERS TRUST COMPANY, N.A., in its
capacity as Trustee and not in any other
capacity
BY: /s/ Xxxxxx Xxxxx
------------------
Name: Xxxxxx Xxxxx
Title: Trust Officer
ASSIGNMENT
----------
In consideration of the loan made by North Central Bancshares, Inc.
("Lender") to the First Federal Savings Bank of Fort Dodge 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 Borrower hereby transfers, assigns and conveys to Lender
all its right, title and interest in and to those certain shares of common stock
of the Lender not allocated to the accounts of any participant which were
purchased with the proceeds of prior loans extended by Northwest Savings and the
Lender.
FIRST FEDERAL SAVINGS BANK OF FORT DODGE
EMPLOYEE STOCK OWNERSHIP PLAN TRUST
BY: FIRST BANKERS TRUST COMPANY, N.A., in its
capacity as Trustee and not in any other
capacity
BY: /s/ Xxxxxx Xxxxx
------------------------------------------
Name: Xxxxxx Xxxxx
Title: Trust Officer
SEPTEMBER 3, 1996.
IRREVOCABLE PROXY
-----------------
In consideration of the loan made by North Central Bancshares, Inc.
("Lender") to the First Federal Savings Bank of Fort Dodge 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, 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 not allocated to the account of any participant and which
were purchased with the proceeds of prior loans extended by Northwest Savings
and the Lender. 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.
FIRST FEDERAL SAVINGS BANK OF FORT DODGE
EMPLOYEE STOCK OWNERSHIP PLAN TRUST
BY: FIRST BANKERS TRUST COMPANY, N.A., in its
capacity as Trustee and not in any other
capacity
BY: /s/ Xxxxxx Xxxxx
--------------------------------------------
Name: Xxxxxx Xxxxx
Title: Trust Officer
SEPTEMBER 3, 1996.
