JOINT CANCELLATION DIRECTION AND RELEASE
Exhibit 10.2
THIS JOINT CANCELLATION DIRECTION AND RELEASE, dated as of September 3, 2009 (this
“Cancellation Direction”) is entered into by and among PVF CAPITAL CORP. (the
“Company”), PVF CAPITAL TRUST I (the “Trust”) and The Bank of New York
Mellon Trust Company, National Association, (as successor to JPMorgan Chase Bank)
(“BNYM”), not in its individual capacity, but solely as Institutional Trustee (as defined in the
Trust Agreement described below) and as Trustee (as defined in the Indenture described below).
WHEREAS, the Company and BNYM have entered into that certain Junior Subordinated Indenture
dated as of June 29, 2004 (as amended and supplemented, the “Indenture”) pursuant to which
the Company’s junior subordinated debt securities (the “Debt Securities”) were issued to
the Trust;
WHEREAS, the Company as sponsor, BNY Mellon Trust of Delaware (successor to Chase Bank USA,
National Association), the administrators and BNYM have entered into that certain Amended and
Restated Trust Agreement dated as of June 29, 2004 (as amended and supplemented, the “Trust
Agreement”) pursuant to which the Trust issued Capital Securities and Common Securities (as
such terms are defined in the Trust Agreement);
WHEREAS, pursuant to an Exchange Agreement dated as of September 1, 2009 (the “Exchange
Agreement”) between the Company, Xxxxx & Company Financial Management, LLC, and Alesco
Preferred Funding IV, Ltd. (“Alesco”), Alesco has agreed to exchange $10,000,000
liquidation amount of Capital Securities (as defined in the Trust Agreement) as held by Alesco in
exchange for delivery, by the Company, of securities and other consideration to Alesco as agreed to
in the Exchange Agreement (collectively, the “Exchange”);
WHEREAS, pursuant to Section 6.6 of the Trust Agreement, the Administrators, at any time may
deliver Common Securities and Capital Securities to the Institutional Trustee for cancellation.
Pursuant to Section 2.09 of the Indenture, under certain circumstances the Company is entitled to
surrender Debt Securities (as defined in the Indentures) held by it to the Trustee for
cancellation;
WHEREAS, the Exchange occurred on September 3, 2009;
WHEREAS, following the Exchange, the Company, as beneficial and legal owner of $10,000,000
aggregate liquidation amount of the Capital Securities and $310,000 aggregate liquidation amount of
the Common Securities, and the Trust, each desire that all of the Capital Securities be cancelled,
and that all of the Common Securities and that all of the Debt Securities (equal to $10,310,000
principal amount) be cancelled;
WHEREAS, each of the Company and the Trust hereby waives (and directs BNYM as Institutional
Trustee under the Trust Agreement and as Trustee under the Indenture to waive) every applicable
condition and prerequisite to the exchange and cancellation of the above referenced Capital
Securities, Common Securities and Debt Securities;
WHEREAS, BNYM as Institutional Trustee under the Trust Agreement and as Trustee under the
Indenture, as directed by each of the Company and the Trust, hereby waives every
applicable condition and prerequisite for which either the Institutional Trustee or the
Trustee is the intended beneficiary, to the exchange and cancellation of the above-referenced
Capital Securities, Common Securities and Debt Securities; and
NOW THEREFORE, the Company, the Trust and the BNYM hereby agree as follows:
SECTION 1. INCORPORATION BY REFERENCE. Capitalized terms defined or referenced in
this Cancellation Direction and not otherwise defined or referenced herein are used herein as
defined or referenced in the Indenture or the Trust Agreement.
SECTION 2. CANCELLATION DIRECTION. By separate correspondence, the Company shall
deliver to the Trustee the Capital Securities and the Common Securities. Each of the Company and
the Trust hereby (a) consents to the cancellation of the Capital Securities, the Common Securities
and the Debt Securities and (b) directs BNYM to cancel the Capital Securities, the Common
Securities and the Debt Securities. Following cancellation of the Capital Securities, the Common
Securities and the Debt Securities, there will be no Capital Securities or Common Securities
outstanding under the Trust Agreement and no Debt Securities outstanding under the Indenture.
SECTION 3. RELEASE. The Company and the Trust hereby release BNYM and agree to
indemnify and hold BNYM (and its affiliates, directors, officers, stockholders, agents and
employees) harmless from any liability, loss, expense, claim or responsibility of any kind
(including the reasonable fees and expenses of counsel and other experts) in respect of or arising
from actions taken (or not taken) in accordance with this Cancellation Direction, in whatever
capacity BNYM may be acting hereunder.
SECTION 4. LOST CERTIFICATES. In the event that the Company is unable to locate the
certificate(s) representing the Common Securities, it agrees that it will cooperate with the BNYM
by providing such certifications and indemnities as may be required by the BNYM to protect BNYM
from any liability resulting from such lost certificate and as may otherwise be requested by BNYM
to facilitate cancellation of the Common Securities.
SECTION 5. BNYM ACCEPTANCE. BNYM shall not be responsible in any manner whatsoever
for the validity or sufficiency of this Cancellation Direction or the due execution hereof by any
of the parties hereto or for or in respect of the recitals and statements contained herein, all of
which recitals and statements are made solely by the Company. Anything in this Agreement
notwithstanding, in no event shall BNYM be liable for special, indirect or consequential damages or
losses of any kind whatsoever (including lost profits) even if BNYM has been advised of such damage
or loss and regardless of the form of action.
SECTION 6. COUNTERPARTS. This Cancellation Direction shall become effective only
upon BNYM’s receipt of a counterpart of this Cancellation Direction duly executed by the all of the
parties hereto. This Cancellation Direction may be executed in any number of counterparts, each of
which shall be deemed to be an original for all purposes, but such counterparts shall together be
deemed to constitute but one and the same instrument. The executed counterparts may be delivered
by facsimile transmission, which facsimile copies shall be deemed original copies.
SECTION 7. EXPENSES. The Company agrees to promptly pay the reasonable attorneys’
fees, expenses and disbursements of BNYM in connection with this Cancellation Direction.
SECTION 8. GOVERNING LAW. The laws of the State of New York shall govern this
Cancellation Direction without regard to the conflict of law principles thereof.
SECTION 9. EXECUTION, DELIVERY AND VALIDITY. The Company and the Trust each
represents and warrants, solely on its own behalf, to BNYM that this Cancellation Direction has
been duly and validly executed and delivered by such party and constitutes its respective legal,
valid and binding obligation, enforceable against such party in accordance with its terms. Each
further represents that the actions to be taken hereunder are authorized and permitted under the
Indenture and the Trust Agreement, as applicable, and any condition precedent to taking such
actions has been satisfied.
(The remainder of this page is intentionally left blank.)
IN WITNESS WHEREOF, the parties hereto have caused this Cancellation Direction to be duly
executed as of the day and year first above written.
| PVF CAPITAL CORP. |
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| By: | /s/ Xxxxx X. Xxxxx | |||
| Name: | Xxxxx X. Xxxxx | |||
| Title: | Interim CEO | |||
| as Company |
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| THE BANK OF NEW YORK MELLON TRUST COMPANY, NATIONAL ASSOCIATION, as Institutional Trustee under the Trust Agreement and as Trustee under the Indenture |
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| By: | /s/ Xxxx Xxxxxxxx | |||
| Name: | Xxxx Xxxxxxxx | |||
| Title: | Vice President | |||
| PVF CAPITAL TRUST I |
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| By: | /s/ Xxxx X. Male | |||
| Name: | Xxxx X. Male | |||
| Title: | Administrator | |||
| By: | /s/ C. Xxxxx Xxxxxx | |||
| Name: | C. Xxxxx Xxxxxx | |||
| Title: | Administrator | |||
ACKNOWLEDGEMENT
Alesco Preferred Funding IV, Ltd., acknowledges and agrees that the Exchange has occurred and it
has surrendered and forfeited any right, claim, title and interest in and to the PVF Trust I
Capital Securities.
| Alesco Preferred Funding IV, Ltd. |
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| By: | Xxxxx & Company Financial Management LLC, as Collateral Manager | |||
| By: | /s/ Xxxxxx Xxxxxxx | |||
| Xxxxxx Xxxxxxx, Director | ||||
