LOAN AGREEMENT
Exhibit
10.10
This Loan
Agreement (this “Agreement”) is made to be effective as of February 26, 2010
(the “Effective Date”), by and between Rurban Financial Corp., an Ohio
corporation (“Lender”), having an address of 000 Xxxxxxx Xxxxxx, Xxxxxxxx, Xxxx
00000, and Rurbanc Data Services, Inc., an Ohio corporation (“Borrower”), having
an address of 0000 Xxxxx Xxxxx 00 X, Xxxxxxxx, Xxxx 00000.
For
valuable consideration, the receipt of which is hereby acknowledged, Borrower
and Lender hereby recite and agree as follows, intending to be legally
bound.
Recitals
A. Borrower
desires to borrow from Lender, and Lender has agreed to lend to Borrower, the
aggregate principal amount of Two Million Dollars ($2,000,000) on the terms and
conditions stated herein.
B. The
terms and conditions of this Agreement and the loan contemplated hereby have
been authorized and approved by the Boards of Directors of Lender and Borrower,
upon the recommendation of their respective Special Committees.
Agreement
Section
1.1 Definitions. As
used in this Agreement and in any certificate, document or report delivered
pursuant to this Agreement (except as otherwise defined herein or in such
certificate, document or report), the following terms shall have the following
meanings:
“Authorized Officer”
means the chief executive officer, the chief financial officer or the treasurer
of Borrower.
“Borrower” has the
meaning given to it in the preamble.
“Business Day” means
any day excluding Saturday, Sunday or any day that is, in Defiance, Ohio or
Cincinnati, Ohio, a legal holiday or a day on which banking institutions are
authorized by law or a Governmental Authority to close.
“Contractual
Obligation” means, as to any Person, any provision of any security issued
by such Person or of any agreement, instrument or undertaking to which such
Person is a party or by which it or any of its property is bound.
“Default” means an
event or condition which would constitute an Event of Default with the giving of
notice, lapse of time or otherwise.
“Default Rate” means a
rate per annum equal to nine percent (9.00%).
“Event of Default”
shall have the meaning set forth in Section 6.1(a).
“GAAP” means generally
accepted accounting principles in the United States in effect at the time any
determination is made or financial statement is required hereunder as
promulgated by the American Institute of Certified Public Accountants, the
Accounting Principles Board, the Financial Accounting Standards Board or other
body existing from time to time that is authorized to establish or interpret
such principles.
“Governmental
Authority” shall mean the U.S. government, central bank or comparable
U.S. governmental agency, any state or other political subdivision thereof and
any entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
“Lender” has the
meaning given to it in the preamble.
“Lien” means any
mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance,
lien (statutory or other), security interest, preference, priority or other
security agreement, including without limitation, any conditional sale or other
title retention agreement, and the filing of any financing statement under the
Uniform Commercial Code or comparable law of any jurisdiction in respect of any
of the foregoing.
“Loan” means the term
loan from Lender to Borrower in the principal amount of Two Million Dollars
($2,000,000) to be made, subject to the terms and conditions hereof, on the Loan
Date.
“Loan Date” means the
date on which the Loan is made.
“Loan Documents” means
this Agreement and the Note.
“Loan Maturity Date”
means March 31, 2012.
“Material Adverse
Effect” means any occurrence of whatever nature (including any
determination in litigation, arbitration or governmental proceeding or
investigation) which has or is reasonably likely to have a materially adverse
effect on:
(a) the
assets, business, profits, properties, condition (financial or otherwise),
operations or foreseeable financial prospects of Borrower; or
(b) the
ability of Borrower to perform any of its payment or other obligations under
this Agreement, the Note or the transactions contemplated hereby and
thereby.
“Note” means the
promissory note, in the form attached hereto as Exhibit A, in the principal
amount of Two Million Dollars ($2,000,000), executed by Borrower to the order of
Lender and evidencing Borrower’s obligation to repay to Lender the Loan,
including interest thereon.
“Person” means an
individual, partnership, corporation, limited liability company, business trust,
joint stock company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature.
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“Requirements of Law”
means, as to any Person, the articles (certificate) of incorporation or
formation, code of regulations (by-laws), operating agreement or other
organizational agreements or other governing documents of such Person, and any
law, statute, treaty, rule or regulation or determination of an arbitrator or a
court or other Governmental Authority, in each case applicable to or binding
upon such Person or any of its property or to which such Person or any of its
property is subject.
Section
1.2 Use of
Terms. Unless otherwise
defined or the context otherwise requires, terms for which meanings are provided
in this Agreement shall have such meanings when used in the exhibits and
schedules hereto, the other Loan Documents and any other communications
delivered from time to time in connection with this Agreement. Terms
defined in the singular shall have a comparable meaning when used in the plural,
and vice versa, unless otherwise defined in the plural.
Section
1.3 Cross
References; Headings. The words
“hereof”, “herein” and “hereunder” and words of similar import when used in this
Agreement or in any of the other Loan Documents shall refer to this Agreement or
such Loan Documents as a whole and not to any particular provision of this
Agreement or such Loan Documents. Section, article, schedule and
exhibit references contained in this Agreement are references to sections,
articles, schedules and exhibits in or to this Agreement unless otherwise
specified. Any reference in any section or definition to any clause
is, unless otherwise specified, to such clause of such section or
definition. The various headings in this Agreement and the other Loan
Documents are inserted for convenience of reference only and shall not affect
the meaning or interpretation of this Agreement or the other Loan Documents or
any provision hereof or thereof.
Section
1.4 Accounting
Terms. Any accounting
term used in this Agreement and in the other Loan Documents and any certificate
or other document made or delivered pursuant hereto or thereto that is not
specifically defined shall have the meaning customarily given in accordance with
GAAP; provided, however, that in the event that changes in GAAP shall be
mandated by the Financial Accounting Standards Board, or any similar accounting
body of comparable standing, and to the extent that such changes would modify or
could modify such accounting terms or the interpretation or computation thereof,
such changes shall be followed in defining such accounting terms only from and
after the date Borrower and Lender shall have amended this Agreement to the
extent necessary to reflect any such changes in the financial covenants and
other terms and conditions of this Agreement.
ARTICLE
II
Loan;
Repayment
Section
2.1 Loan;
Principal Due Date. Provided that all
of the conditions set forth in Section 3.1 hereof are satisfied, Lender shall
make the Loan to Borrower on the Effective Date. Unless sooner due
because of an acceleration as a result of an Event of Default, the unpaid
principal amount of the Note shall be due and payable on the Loan Maturity
Date.
Section
2.2 Interest. The unpaid
principal balance of the Note from time to time outstanding shall bear interest
from the Loan Date at the rate per annum equal to six percent
(6.00%). Interest shall be payable in arrears commencing on April 5,
2010 and continuing on the same day of each calendar month thereafter until the
Note has been paid in full. Any principal amount of the Note that is
not paid when due, whether at the stated maturity, by acceleration or otherwise,
shall bear interest at the Default Rate.
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Section
2.3 Note. The Loan made by
Lender to Borrower pursuant hereto shall be evidenced by the
Note. The Note shall (i) be dated as of the Loan Date, (ii) be in a
principal of Two Million Dollars ($2,000,000), (iii) bear interest as determined
pursuant to this Agreement, (iv) mature as provided in this Agreement, and (v)
require accrued interest to be paid in accordance with the terms of this
Agreement.
Section
2.4 Prepayment. The Loan may be
prepaid in whole or in part at any time without penalty.
Section
2.5 Use of
Proceeds. Borrower
represents and agrees that the proceeds of the Loan made hereunder shall be used
by Borrower for working capital and general corporate purposes.
Section
2.6 Subordination. The debt
evidenced by this Agreement and the Note shall be junior and subordinate with
respect to payment to all of Borrower’s secured debt, whether now existing or
hereafter arising. This Agreement and the Note shall, at the request
of Borrower or Lender, bear an appropriate legend evidencing this subordination,
and Lender agrees to execute any subordination agreements reasonably requested
from time to time by any secured creditor of Borrower.
ARTICLE
III
Conditions to
Lending
Section
3.1 Conditions to
Loan.
The
agreement of Lender to make the Loan hereunder is subject to the satisfaction of
the following conditions precedent:
(a) Representations
and Warranties. Each of the
representations and warranties made by Borrower in or pursuant to this Agreement
or the Note shall be true and correct in all material respects on and as of such
date as if made on and as of such date, unless stated to relate to a specific
earlier date.
(b) No
Default. No Default or
Event of Default shall have occurred and be continuing on the Loan Date or after
giving effect to the Loan.
(c) Loan
Documents. Lender shall have
received (i) this Agreement, executed and delivered by a duly authorized officer
of Borrower, and (ii) the Note, conforming to the requirements hereof, executed
and delivered by a duly authorized officer of Borrower.
(d) Consents. Lender shall have
received true copies (in each case certified as to authenticity on such date by
such Person as may be appropriate or may be reasonably required by Lender) of
all documents and instruments, including all consents, authorizations and
filings, required or advisable under any Requirements of Law or by any
Contractual Obligation in connection with the execution, delivery, performance,
validity and enforceability of this Agreement and the Note, and such consents,
authorizations and filings shall be reasonably satisfactory in form and
substance to Lender and its counsel and be in full force and
effect.
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(e) Corporate
Documents. Lender shall have
received true and complete certified copies of the resolutions (in form and
substance satisfactory to Lender) of the Board of Directors of Borrower
authorizing (i) the execution, delivery and performance of this Agreement and
the Note, (ii) the consummation of the transactions contemplated hereby and
thereby, (iii) the borrowing and other financial transactions provided for
herein, and (iv) the documents provided for in this Agreement, certified by the
secretary or an assistant secretary (or other appropriate representative) of
Borrower. Such certificate shall state that the resolutions set forth
therein have not been amended, modified, revoked or rescinded as of the Loan
Date.
(f) Good
Standing Certificates. Lender shall have
received copies of certificates dated as of a recent date from the Secretary of
State, or other appropriate authority, of such jurisdiction, evidencing the good
standing (or comparable status) of Borrower in the jurisdiction of its
incorporation.
(g) Incumbency
Certificates. Lender shall have
received a certificate of the secretary or an assistant secretary (or other
appropriate representative) of Borrower as to the incumbency and signature of
the officer(s) or other representatives of Borrower executing this Agreement and
the Note.
(h) No
Litigation. No
suit, action, investigation, inquiry or other proceeding (including, without
limitation, the enactment or promulgation of a statute or rule) by or before any
arbitrator or any Governmental Authority shall be pending and no preliminary or
permanent injunction or order by a state or federal court shall have been
entered (i) in connection with this Agreement, the Note or any of the
transactions contemplated hereby or thereby, or (ii) which, in the reasonable
judgment of Lender, would have a Material Adverse Effect.
(i) No
Violation. The consummation
of the transactions contemplated hereby and by the Note shall not contravene,
violate or conflict with, nor involve Lender in a violation of, any Requirement
of Law.
(j) Additional
Documents. Lender shall have
received each additional document, instrument or item of information reasonably
requested by Lender.
(k) Additional
Matters. All
corporate and other proceedings, and all documents, instruments and other legal
matters in connection with the transactions contemplated by this Agreement and
the Note shall be reasonably satisfactory in form and substance to
Lender.
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ARTICLE
IV
Representations and
Warranties
Borrower
represents and warrants to Lender that:
Section
4.1 Good
Standing and Qualification. Borrower (i) is a
corporation duly incorporated, organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation, (ii) has all requisite
power and authority to own and operate its properties and to carry on its
business as presently conducted, (iii) is duly qualified as a foreign
corporation to do business in, and is in good standing (or comparable status)
under the laws of, each jurisdiction where, by the nature of its business or
because of the character of the properties owned or leased by it or the
transaction of its business, failure to be so qualified would have a Material
Adverse Effect or where failure to qualify would affect the ability of Borrower
to enforce any of its material rights, and (iv) is in compliance with all
Requirements of Law except to the extent that the failure to comply therewith
would not, in the aggregate, have a Material Adverse Effect.
Section
4.2 Authority. Borrower has full
power and authority (i) to enter into this Agreement and the Note, (ii) to make
the borrowings contemplated by this Agreement, (iii) to execute, deliver and
perform this Agreement and the Note and to incur the obligations provided for
herein and therein, all of which have been duly authorized by all necessary and
proper corporate action. No consent, waiver or authorization of, or
filing with, any Person (including without limitation any Governmental
Authority), is required to be made or obtained by Borrower in connection with
the borrowings hereunder or the execution, delivery, performance, validity or
enforceability of this Agreement and the Note.
Section
4.3 Binding
Agreements. This
Agreement constitutes, and the Note, when executed and delivered pursuant hereto
for value received, shall constitute, the valid and legally binding obligations
of Borrower, enforceable in accordance with their respective terms.
Section
4.4 Litigation. There are no actions, suits,
investigations or administrative proceedings of or before any court, arbitrator
or Governmental Authority, pending or, to the knowledge of Borrower, threatened
against Borrower or any of its properties or assets (i) in which, either in any
case or in the aggregate, (x) an adverse outcome for Borrower is probable (as
used in this context, “probable” means, as reasonably determined by Lender, the
prospects of the claimant not succeeding are judged to be extremely doubtful and
the prospects for success by Borrower in its defense are judged to be slight),
and (y) which, if so adversely determined, would have a Material Adverse Effect;
or (ii) question the validity of this Agreement or any other Loan Documents or
any action to be taken in connection with the transactions contemplated hereby
and thereby.
Section
4.5 No
Conflicting Law or Agreements. The execution, delivery and
performance by Borrower of this Agreement and the Note: (i) do not and will not
violate any Requirement of Law; (ii) do not and will not violate any order,
decree or judgment by which Borrower is bound; (iii) do not and will not violate
or conflict with, result in a breach of or constitute (with notice, lapse of
time, or otherwise) a default under any material agreement, mortgage, indenture
or other Contractual Obligation to which Borrower is a party, or by which
Borrower’s properties are bound, which violation would have a Material Adverse
Effect; or (iv) do not and will not result in the creation or imposition of any
Lien upon any property or assets of Borrower, except in favor of
Lender.
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Section
4.6 Regulations
T, U or X. Borrower is not
engaged, nor will Borrower engage, principally or as one of its important
activities, in the business of extending credit for the purpose of “purchasing”
or “carrying” any “margin stock” under Regulation U of the Board of Governors of
the Federal Reserve System as now or from time to time in effect. No
part of the proceeds of the borrowings hereunder will be used, directly or
indirectly, for the purpose of “purchasing” or “carrying” any “margin
stock”. The terms “purchasing,” “carrying” and “margin stock” shall
be as defined in Regulation U promulgated by the Board of Governors of the
Federal Reserve System. No part of the proceeds of the borrowings
hereunder will be used, directly or indirectly, for any purpose which violates,
or which is inconsistent with, the provisions of Regulations T, U or X of said
Board of Governors. If requested by Lender, Borrower shall furnish to
Lender a statement in conformity with the requirements of Federal Reserve Form
U-1 referred to in said Regulation U to the foregoing effect.
Section
4.7 Compliance. No Default or
Event of Default has occurred or is existing. Borrower is not in
default with respect to any order, writ, injunction or decree of any court or of
any Governmental Authority or in violation of any Requirement of Law to which it
or its properties are subject, which default or violation might have a Material
Adverse Effect.
Section
4.8 Investment
Company; Holding Company. Borrower is not
(i) an “investment company” or a company “controlled” by an “investment company”
within the meaning of the Investment Company Act of 1940, as amended, (ii) a
“holding company” within the meaning of the Public Utility Holding Company Oct
of 1935, as amended, or (iii) subject to any regulatory provision which
restricts its ability to incur debt.
Section
4.9 Accuracy
of Information. All
information, reports and other papers and data (including without limitation,
copies of all filings made with all Governmental Authorities) furnished
heretofore or contemporaneously herewith by or on behalf of Borrower to Lender
for purposes of or in connection with this Agreement and the Note and the
transactions contemplated hereby and thereby, is, and all other such information
hereafter furnished by or on behalf of Borrower to Lender will be, true and
accurate in every material respect on the date as of which such information is
dated or certified.
ARTICLE
V
Covenants
Until
payment in full of the Note and all other amounts and obligations owing to
Lender hereunder and under Note, Borrower shall, unless Lender otherwise
consents in writing:
Section
5.1 Financial
Statements. Furnish to
Lender:
(a) as
soon as available, but in any event within 75 calendar days after the end of the
fiscal year, beginning with fiscal year 2009, of Borrower, a copy of the audited
balance sheet of Borrower as at the end of such fiscal year and the related
audited statements of income, stockholders’ equity and cash flows for such
fiscal year, setting forth in each case in comparative form the figures for the
previous year, together with the unqualified opinion of independent certified
public accountants of recognized standing; and
(b)
as soon as available, but in any event within 45 calendar days after the end of
each of the first three fiscal quarters, a copy of the unaudited balance sheet
of Borrower as at the end of such quarter and the related unaudited statements
of income, changes in shareholders’ equity and cash flows for such
quarter.
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Section
5.2 Certificates;
Other Information. Furnish to
Lender:
(a)
concurrently with the delivery of each annual financial statement referred to in
Section 5.1(a) and each quarterly financial statement referred to in Section
5.1(b), a certificate of an Authorized Officer of Borrower (in such form as
shall be reasonably acceptable to Lender) stated to have been made after due
examination by such Authorized Officer stating whether any Default or Event of
Default exists on the date of such certificate and, if any Default or Event of
Default then exists, setting forth the details thereof and the action which
Borrower is taking or proposes to take with respect thereto; and
(b)
promptly, on reasonable notice to Borrower, such additional financial and other
information as Lender may from time to time reasonably request.
Section
5.3 Payment
of Obligations.
Pay, discharge or otherwise satisfy, at or before maturity or before they
become delinquent, as the case may be, all its debt, including without
limitation all amounts due under the Note and hereunder, and other material
obligations of whatever nature, except for any debt or other obligations when
the amount or validity thereof is currently being contested in good faith by
appropriate proceedings and reserves in conformity with GAAP with respect
thereto have been provided on the books of Borrower.
Section
5.4 Compliance
with Law. Comply with all
Requirements of Law.
Section
5.5 Inspection
of Property, Books and Records, Discussions. Keep proper books
of record and account in which full, true and correct entries in conformity with
GAAP and all Requirements of Law shall be made of all dealings and transactions
in relation to its business and activities, subject in the case of interim
statements to year-end audit adjustments; and permit Lender (at Borrower’s
expense) to (i) visit and inspect any of its properties, and examine and make
abstracts from any of the books and records at any reasonable time and as often
as may reasonably be requested, and (ii) discuss the business, operations,
properties and financial and other condition of Borrower with appropriate
officers of Borrower and, if notice thereof is given to Borrower prior to the
date of such discussions and provided Borrower shall be entitled to
participate in such discussions, with its independent certified public
accountants.
Section
5.6 Notices.
(a) Promptly
give notice to Lender:
(i) of the
occurrence of any Default or Event of Default;
(ii) of any (A)
default under any loan, letter of credit agreement or acceptance agreement, (B)
default under any other Contractual Obligations that would enable the obligee of
such obligations to compel Borrower to immediately pay all amounts owing
thereunder or otherwise accelerate payments thereunder and which would have a
Material Adverse Effect, or (C) litigation, investigation or proceeding which
may exist at any time between Borrower and any Governmental Authority, which (x)
an adverse outcome for any such Borrower is probable (as used in this context,
“probable” means, as reasonably determined by Lender, the prospects of the
claimant not succeeding are judged to be extremely doubtful and the prospects
for success by Borrower in its defense are judged to be slight), and (y) if so
adversely determined, would have a Material Adverse Effect;
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(iii) of any litigation or
proceeding brought or threatened against Borrower (A) in which the aggregate
amount involved is $100,000 or more, or (B) in which injunctive or similar
relief is sought; or
(iv) of any change relating
to the business, operations, property or financial or other condition of
Borrower which may have a Material Adverse Effect.
(b) Each
notice pursuant to this Section 5.6 shall be accompanied by a statement of an
Authorized Officer setting forth details of the occurrence referred to therein
and stating what action Borrower propose to take with respect
thereto.
Section
5.7 Taxes. Pay and discharge
all taxes, assessments, governmental charges and levies upon or collected by
Borrower as and when they become due and payable, unless, and only to the extent
that, such taxes, assessments, governmental charges and levies shall be
contested in good faith by appropriate proceedings and shall have been reserved
against as required by GAAP by Borrower.
Section
5.8 Indemnification.
(a) Defend,
indemnify and hold Lender, its affiliates and holding companies and their
respective officers, directors, agents and employees harmless against any and
all loss, cost, expense (including the reasonable fees and expenses of counsel),
claims or actions relating to or arising out of this Agreement and the Note, or
any actual or proposed use of proceeds of the Loan, unless any such loss, cost,
expense, claim or action are due to the gross negligence or willful misconduct
of Lender. The provisions of this Section 5.8 shall survive the
termination of this Agreement.
(b) If
any claim, action or proceeding (a “Proceeding”) is made or brought against
Lender or any of its officers, directors, agents and employees in respect of
which indemnity may be sought hereunder, Lender shall promptly (but in any event
within thirty (30) days of receiving notice of any such claim or action) give
notice to Borrower of the Proceeding; provided that the failure of Lender to
give such notice shall not relieve Borrower from any of their obligations under
this Section 5.8 unless the failure prejudices the defense by Borrower of the
Proceeding, and then only to the extent of any such
prejudice. Following receipt by Borrower of such notice from Lender,
Borrower will be entitled to participate in such Proceeding and, to the extent
that it wishes (unless (i) Borrower is also a party to such Proceeding and
Lenders determines in good faith that joint representation would be
inappropriate, or (ii) Borrower fails to provide reasonable assurance to Lender
of its financial capacity to defend such Proceeding and provide indemnification
with respect to such Proceeding), to assume the defense of such Proceeding with
counsel satisfactory to Lender. If Borrower assumes the defense of a
Proceeding, (i) it will be conclusively established for purposes of this Section
5.8 that the claims made in that Proceeding are within the scope of and subject
to indemnification; (ii) no compromise or settlement of such claims may be
effected by Borrower without Lender’s consent unless (A) there is no finding or
admission of any violation of law or any violation of the rights of any Person
and no material effect on any other claims that may be made against Lender, and
(B) the sole relief provided is monetary damages that are paid in full by
Borrower; and (iii) Lender will have no liability with respect to any compromise
or settlement of such claims effected without its consent. If notice
is given to Borrower of the commencement of any Proceeding and Borrower does
not, within twenty (20) days after Lender’s notice is given, give notice to
Lender of its election to assume the defense of such Proceeding, Borrower will
be bound by any determination made in such Proceeding or any compromise or
settlement effected by Lender (to the extent is thereafter conclusively
established for purposes of this Section 5.9 that the claims made in that
Proceeding are within the scope of and subject to
indemnification).
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(c) Notwithstanding
the foregoing, if Lender determines in good faith that there is a reasonable
probability that a Proceeding may adversely affect it or its affiliates other
than as a result of monetary damages for which it would be entitled to
indemnification under this Section 5.8, Lender may, by notice to Borrower,
assume the exclusive right to defend, compromise, or settle such Proceeding, but
Borrower will not be conclusively bound by any determination of a Proceeding so
defended or any compromise or settlement effected without its consent (which may
not be unreasonably withheld).
Section
5.9 Corporate
Existence; Foreign Qualification. Do or cause to be
done at all times all things necessary to: (i) maintain and preserve its
existence, as a corporation or other entity, as the case may be; and (ii) be
duly qualified to do business and be in good standing as a foreign corporation
or other entity in each jurisdiction where failure to do so will have a Material
Adverse Effect.
Section
5.10 Performance
Under Loan Documents. Perform all
obligations required to be performed by it under the terms of this Agreement and
the other Loan Documents.
Section
5.11 Maintenance
of Business. Maintain the
general character of the business of Borrower as presently
conducted.
Section
5.12 Insurance. Borrower
shall keep (a) all of the property of Borrower of an insurable nature, including
without limitation the Collateral, insured at all times against such risks to
the extent that like properties are customarily insured by other companies
engaged in the same or similar business similarly situated, and (b) adequate
insurance at all times with financially sound and responsible insurance carriers
acceptable to Lender against general liability and liability on account of
damage to personal and properties under all applicable xxxxxxx compensation
laws. Borrower shall provide certificates of insurance coverage as
and when required by Lender.
Section
5.13 Guaranties
and Other Liabilities. Borrower shall not purchase or
repurchase (or agree, contingently or otherwise to do so) the indebtedness of,
or assume, guarantee (directly or indirectly or by an instrument having the
affect of assuring another's payment or performance of any obligation or
capability of doing so), endorse or otherwise become liable, directly or
indirectly, in connection with the obligations, stock or dividends of any person
or entity, except for (a) the assumption or guarantee of any debt of New Core
Holdings, Inc. (“New Core”) in connection with the merger contemplated by the
Agreement and Plan of Merger, dated as of April 25, 2009 and amended as of December
29, 2009, among Borrower,
New Core and NC Merger Corp. (as the same may be further amended from time to
time) or (b) the endorsement of negotiable instruments for deposit or collection
in the ordinary course of business.
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ARTICLE
VI
Events of Default;
Remedies
Section
6.1 Events of
Default; Remedies.
(a) The occurrence of any of the following shall constitute an “Event of
Default” hereunder:
(i)
Borrower fails to pay any principal or interest payable
under the Note in accordance with its terms and such failure to pay is not cured
within ten (10) days after written notice from Lender;
(ii) Borrower
fails to observe or perform any other term of the Note or this Agreement, and
such failure to observe or perform continues for more than thirty (30) days
after such failure shall first become known to any Authorized Officer of
Borrower;
(iii) Borrower
(A) intentionally makes any materially incorrect or misleading representation,
warranty, or certificate to Lender; or (B) intentionally makes any materially
incorrect or misleading representation in any financial statement or other
information delivered to Lender;
(iv)
Borrower becomes insolvent or unable to pay
its debts as they become due;
(v) Borrower
(A) makes an assignment for the benefit of creditors; (B) consents to the
appointment of a custodian, receiver, or trustee for itself or for a substantial
part of its assets; or (C) commences or consents to any proceeding under any
bankruptcy, reorganization, liquidation, insolvency or similar laws of any
jurisdiction;
(vi) a
custodian, receiver or trustee is appointed for Borrower, or for a substantial
part of its assets, without its consent and is not removed within 60 days after
such appointment;
(vii) proceedings
are commenced against Borrower under any bankruptcy, reorganization,
liquidation, or similar laws of any jurisdiction, and such proceedings remain
undismissed for 60 days after commencement;
(viii) any
judgment is entered against Borrower, or any attachment, levy or garnishment is
issued against any property of Borrower, in excess of $100,000, individually or
in the aggregate, and which judgment, attachment, levy or garnishment has not
been discharged, vacated, bonded or stayed within 60 days of being so entered or
after such issuance; or
(ix) Borrower
defaults under any other agreement, obligation or instrument between Borrower
and Lender and such default continues past the applicable cure period, if
any.
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(b) Upon
the happening of any of the foregoing Events of Default, Lender may, in its sole
discretion by notice to Borrower, declare all amounts owing under the Note and
this Agreement to be, and the same shall thereupon become, immediately due and
payable without presentment, demand, protest, or other notice of any kind, all
of which are hereby waived by Borrower; provided, however, that in the case of
any of the Events of Default specified in clauses 6.1(a)(iv), (v), (vi) and
(vii) above with respect to Borrower, without any notice to Borrower or any
other act by Lender, all amounts owing under the Note and this Agreement shall
become immediately due and payable without presentment, demand, protest, or
other notice of any kind, all of which are hereby waived by
Borrower.
(c) Upon
the happening of any of the foregoing Events of Default, Lender shall have all
of the rights and remedies provided by any law or agreement, including the Loan
Documents. Borrower shall be liable to Lender for all reasonable
costs and expenses of every kind incurred in the making or collection of amounts
due hereunder and under the Note, including, without limitation, reasonable
attorneys’ fees and court costs. These costs and expenses shall
include, without limitation, any costs or expenses incurred by Lender in any
bankruptcy, reorganization, insolvency or other similar proceeding.
Section 6.2
Application
of Proceeds. Any
moneys received by Lender pursuant to the exercise of any remedies provided
herein or in the other Loan Documents or by law shall be applied in the
following order of priority:
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First:
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the
payment of Lender for all moneys reasonably advanced by each for taxes,
assessments, insurance, costs incurred for the protection of any property
of Borrower and costs incurred in the collection thereof (including,
without limitation, reasonable attorneys’ fees and
expenses);
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Second:
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the
payment to Lender of all unpaid interest, fees and other sums and/or
charges (other than the principal of the Advances) owing to Lender
hereunder and the Note;
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Third:
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the
payment to Lender of all unpaid principal of the Loan owing to
Lender;
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Fourth:
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to,
or at the direction of, Borrower, or as a court of competent jurisdiction
otherwise directs.
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ARTICLE
VII
Conditions of
Lending
Section 7.1 Expenses. Borrower agrees to also pay
all out-of-pocket expenses (including reasonable fees and expenses of counsel)
incurred by Lender in connection with the preparation of any amendments or
supplements to this Agreement and/or incidental to the enforcement of the rights
of Lender under any provisions of this Agreement and the Note.
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Section
7.2 Covenants
to Survive; Binding Agreement. This Agreement
shall be binding upon and inure to the benefit of Lender, Borrower and their
respective successors or assigns. All covenants, agreements,
warranties and representations made herein, and in all certificates and
documents delivered in connection with this Agreement by or on behalf of
Borrower shall survive the execution and delivery hereof and thereof, and all
such covenants, agreements, representations and warranties shall inure to the
successors and assigns of Lender whether or not so expressed.
Section
7.3 Waivers. No failure on the
part of Lender to exercise, and no delay in exercising, any right or remedy
hereunder or under the Note shall operate as a waiver thereof, nor shall any
single or partial exercise by Lender of any right, remedy or power hereunder or
thereunder preclude any other right, remedy or power. The rights,
remedies and powers provided herein and in the Note are cumulative and not
exclusive of any other rights, remedies or powers which Lender would otherwise
have. Notice to or demand on Borrower in any circumstance in which
the terms of this Agreement or the Note do not require notice or demand to be
given shall not entitle Borrower to any other or further notice or demand in
similar or other circumstances or constitute a waiver of the rights of Lender to
take any other further action in any circumstances without notice or
demand.
Section
7.4 Notices. Notice from one
party to another relating to this Agreement and the Note shall be deemed
effective if made in writing (including telecommunications) and delivered to the
recipient’s address or facsimile number set forth below (or to such other
address or number as such party shall give notice) by any of the following
means: (i) hand delivery, (ii) registered or certified mail, postage prepaid,
with return receipt requested, (iii) Federal Express or like overnight courier
service or (iv) facsimile transmission with request for assurance of receipt in
a manner typical with respect to communications of that type. Notice
made in accordance with this Section 7.4 shall be deemed delivered on receipt if
delivered by hand or facsimile transmission, on the third business day after
mailing if mailed by registered or certified mail, or the next Business Day
after mailing or deposit with an overnight courier service if delivered by
express mail or overnight courier for next day delivery.
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If
to Lender:
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Rurban
Financial Corp.
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000
Xxxxxxx Xxxxxx
Xxxxxxxx,
Xxxx 00000
Attention: Chief
Executive Officer
Facsimile: (000) 000-0000
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If
to Borrower:
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Rurbanc
Data Services, Inc.
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0000
Xxxxx Xxxxx 00 X
Xxxxxxxx,
Xxxx 00000
Attention: Chief
Executive Officer
Facsimile: (000)
000-0000
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Section
7.5 Severability;
Entire Agreement; Effectiveness. Every provision
of this Agreement and the Note is intended to be severable; if any term or
provision of this Agreement or the Note shall be invalid, illegal or
unenforceable for any reason whatsoever, the validity, legality and
enforceability of the remaining provisions hereof or thereof shall not in any
way be affected or impaired thereby. The parties hereto shall
endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions, the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions. All exhibits and schedules to this Agreement shall be
annexed hereto and shall be deemed to be part of this Agreement. This
Agreement and the exhibits and schedules attached hereto and the Note embody the
entire agreement and understanding between Borrower and Lender and supersede all
prior agreements and understandings relating to the subject matter
hereof. This Agreement shall become effective upon receipt by Lender
of counterparts hereof signed by each of the parties hereto (or, in the case of
any party as to which an executed counterpart shall not have been received,
receipt by Lender in form satisfactory to it of facsimile or other written
confirmation from such party of execution of a counterpart hereof by such
party).
Section
7.6 Governing
Law; Venue. This
Agreement and the Note are being delivered, and are intended to be performed in,
the State of Ohio and shall be construed and enforceable in accordance with, and
governed by, the laws of the State of Ohio. Borrower agrees that any
legal suit, action or proceeding arising out of or related to this Agreement or
the Note or the transactions contemplated hereby and thereby shall, in the sole
discretion of Lender, be instituted in any state court of appropriate
jurisdiction in Defiance County, Ohio, or a federal court of appropriate
jurisdiction in Toledo, Ohio, and waives any objection that it may have, now or
hereafter, to the venue of any such suit, action or proceeding, and irrevocably
submits to the jurisdiction of any such court in any such suit, action or
proceeding.
Section
7.7 Amendments
and Waivers. Any provision of
this Agreement or the Note may be amended or waived if, but only if, such
amendment or waiver is in writing and is signed by an authorized representative
of Borrower and Lender.
Section
7.8 Taxes and
Fees. Should any tax
(other than a tax based upon the net income of Lender) or any recording or
filing fees become payable in respect of this Agreement or the Note or any
amendment, modification or supplement hereof or thereof, Borrower agrees to pay
the same together with any interest or penalties thereon and agree to hold
Lender harmless with respect thereof.
Section
7.9 Counterparts. This Agreement
may be executed in any number of counterparts, each of which shall be an
original and all of which shall constitute one agreement. It shall
not be in making proof of this Agreement or of any document required to be
executed and delivered in connection herewith to produce or account for more
than one counterpart.
[The
remainder of this page is intentionally left blank. Signatures are on
the next page.]
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IN
WITNESS WHEREOF, Borrower and Lender have caused this Agreement to be executed
by their respective duly authorized officers as of the Effective
Date.
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BORROWER:
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RURBANC
DATA SERVICES, INC.
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By:
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/s/ Xxxxxxx X.
Xxxxx
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Print Name:
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Xxxxxxx X.
Xxxxx
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Its:
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President and Chief Executive
Officer
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LENDER:
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RURBAN
FINANCIAL CORP.
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By:
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/s/ Xxxx X.
Xxxxx
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Print Name:
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Xxxx X.
Xxxxx
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Its:
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President and Chief Executive
Officer
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[Signature
Page to Loan Agreement]
EXHIBIT
A
PROMISSORY
NOTE
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$2,000,000.00
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February
26, 2010
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(the
“Effective Date”)
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Reference
is made to that certain Loan Agreement, dated as of February 26, 2010, between
Rurban Financial Corp., an Ohio corporation (“Lender”), having an address of 000
Xxxxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000, and Rurbanc Data Services, Inc., an Ohio
corporation (“Borrower”), having an address of 0000 Xxxxx Xxxxx 00 X, Xxxxxxxx,
Xxxx 00000 (as amended, amended and restated or otherwise modified, the “Loan
Agreement”), the terms of which are hereby incorporated
herein. Capitalized terms used herein and not otherwise defined shall
have the meanings given to them in the Loan Agreement.
For value
received, Borrower promises to pay to the order of Lender, on or before March
31, 2012, the principal sum of Two Million Dollars ($2,000,000.00), together
with interest from the date hereof on the unpaid principal balance from time to
time outstanding, as described below.
The
unpaid principal balance of this Note from time to time outstanding shall bear
interest from the date of this Note at the rate per annum equal to six percent
(6.00%). Interest shall be payable in arrears commencing on April 5,
2010 and continuing on the same day of each calendar month thereafter until this
Note has been paid in full. Interest shall be computed on the basis
of a 365-day year for the actual number of days the unpaid principal balance of
this Note is outstanding. Any principal amount of this Note that is
not paid when due, whether at the stated maturity, by acceleration or otherwise,
shall bear interest at the Default Rate.
All
payments received under the terms of this Note will be applied by Lender first
to any sums due under this Note other than principal or interest, second to
interest due and payable, third to any amounts of principal due and payable, and
fourth to the last to mature of the payments of principal due under this
Note.
Principal,
interest and other sums payable in accordance with this Note shall be payable in
lawful money of the United States of America at Lender’s address referenced
above, or such other address of which Lender may from time to time give written
notice to Borrower.
If an
Event of Default shall occur, Lender shall, without limitation, have all of the
rights and remedies provided by any law or agreement, including the Loan
Agreement.
No delay
or failure on the part of Lender to exercise any of its rights hereunder shall
be deemed a waiver of such rights or of any other rights of Lender nor shall any
delay, omission or waiver on any one occasion be deemed a bar to or a waiver of
such rights or any other right on any future occasion.
Borrower
and all other persons now or hereafter liable, primarily or secondarily, for the
payment of the indebtedness evidenced hereby or any part thereof, waive
presentment for payment, demand, notice of dishonor, protest and notice of
protest, and all notices of every kind and assent to all extension(s) or
postponement(s) of the time of payment or any other indulgences by Lender to any
substitutions, exchanges, or releases of any security for this Note, and to
additions or releases of any other parties or persons primarily or secondarily
liable hereon.
Upon any
transfer of this Note by Lender or by any subsequent transferee, the transferee
shall thereupon become vested with all rights, benefits and privileges of Lender
under this Note and by law provided, and the term “Lender” shall mean such
subsequent transferee or transferee(s).
This Note
and all rights and obligations under this Note shall be governed by and
construed under the local laws of the State of Ohio. If any provision
hereof is or becomes invalid or unenforceable under any law of mandatory
application, it is the intent of Borrower, Lender, and all parties primarily or
secondarily liable hereunder, that such provision will be deemed severed and
omitted herefrom, the remaining portions hereof to remain in full force and
effect as written.
If there
is a lawsuit arising out of this Note, Borrower agrees, upon Lender’s request,
to submit to the jurisdiction of the courts of a state court of appropriate
jurisdiction in Defiance County, Ohio, or a federal court of appropriate
jurisdiction in Toledo, Ohio, and waives any objection that it may have, now or
hereafter, to the venue of any such suit, action or proceeding, and irrevocably
submits to the jurisdiction of any such court in any such suit, action or
proceeding. Borrower hereby waives the right to any jury trial in any
action, proceeding, or counterclaim brought by either Lender or Borrower on this
Note.
IN
WITNESS WHEREOF, Borrower has caused this Note to be executed by its duly
authorized representative to be effective as of the Effective Date.
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RURBANC
DATA SERVICES, INC.
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By:
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Name:
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Title:
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