1
EXHIBIT 10.1
LOAN AGREEMENT
THIS AGREEMENT, dated as of December 31, 1997, is by and between
UNIVERSITY BANCORP, INC., a corporation organized under the laws of the state of
Delaware (the "Borrower"), and NORTH COUNTRY BANK AND TRUST, a Michigan banking
corporation (the "Lender").
The parties hereto agree as follows:
SECTION 1. LOAN
SECTION 1.1. LOAN. Subject to the terms and conditions of this
Agreement, the Lender agrees to loan to the Borrower NINE HUNDRED TWENTY-FIVE
THOUSAND UNITED STATES DOLLARS ($925,000) (the "Commitment").
SECTION 1.2. NOTE. The Loan shall be evidenced by a promissory note
(the promissory note is referred to in this Agreement as the "Note"),
substantially in the from of Exhibit A, with appropriate insertions, dated the
date hereof, payable to the order of the Lender, in the principal amount of the
Commitment.
SECTION 2. INTEREST AND FEES
SECTION 2.1. INTEREST. The unpaid principal of the Loan from time to
time outstanding hereunder shall bear interest at the rates reflected in Exhibit
A.
SECTION 2.2. INTEREST PAYMENT DATES. Accrued interest shall be paid on
the dates reflected in Exhibit A.
SECTION 2.3. PAYMENT AND PREPAYMENT. Borrower may from time to time
prepay any principal, in whole or in part at any time, without premium of
penalty. All prepayment of principal shall include interest accrued to the date
of prepayment on the principal amount being prepaid. Amounts prepaid may not be
reborrowed. Any partial prepayments shall be applied to principal last coming
due.
SECTION 2.4. LOAN FEE. At closing of the Loan, Borrower will pay Lender
a fee of Two Thousand Three Hundred Twelve and 50/100 Dollars ($2,312.50) plus
Lender's legal fees for preparation of all required loan documentation.
SECTION 3. PAYMENTS
Payments and prepayments of principal and interest shall be made in
immediately available funds to the Lender at its main banking office at 000
Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000.
SECTION 4. SECURITY
The indebtedness evidenced by the Note shall be secured by one hundred
percent (100%) of the issued and outstanding capital stock of University Bank
(formerly "The Newberry State Bank"), a Michigan banking corporation having its
principal office in Ann Arbor, Michigan ("Bank"), which stock shall be pledged
pursuant to the Pledge Agreement in the form of Exhibit B attached hereto
("Pledge Agreement").
2
SECTION 5. REPRESENTATIONS AND WARRANTIES
To induce the Lender to make the Loan, the Borrower represents and
warrants to the Lender that:
SECTION 5.1. ORGANIZATION. The Borrower is a corporation existing and
in good standing under the laws of the state of Delaware; each subsidiary
(specifically including but not limited to each subsidiary which is a bank
("Subsidiary Bank")) is a corporation duly existing and in good standing under
the laws of the jurisdiction of its incorporation; the Borrower and any
subsidiary (specifically including but not limited to each Subsidiary Bank) are
duly qualified, in good standing and authorized to do business in each
jurisdiction where, because of the nature of their activities or properties,
such qualification is required; and the Borrower and any subsidiary
(specifically including but not limited to each Subsidiary Bank) have the
corporate power and authority to own their properties and to carry on their
businesses as now being conducted.
SECTION 5.2. AUTHORIZATION; NO CONFLICT; BINDING OBLIGATIONS. The
borrowing hereunder, the execution and delivery of the Note, and the performance
by the Borrower of its obligations under this Agreement and the Note are within
the Borrower's corporate powers, have been authorized by all necessary corporate
action, have received all necessary governmental approval (if any shall be
required) and do not and will not contravene or conflict with any provision of
law or of the articles of incorporation or by-laws of the Borrower or any
subsidiary or of any agreement binding upon the Borrower or any subsidiary. This
Agreement is, and the Note and Pledge Agreement upon their execution and
delivery will be, legal, valid and binding obligations of Borrower which are
enforceable against Borrower in accordance with their respective terms.
SECTION 5.3. FINANCIAL STATEMENTS. The Borrower has supplied copies of
the following financial or other statements to the Lender:
(a) The Borrower's unaudited consolidated financial statements as
at September 30, 1997;
(b) The Borrower's audited consolidated financial statements as at
December 31, 1996.
Such statements have been prepared in conformity with generally accepted
accounting principles applied on a basis consistent with that of the preceding
fiscal year and accurately present the condition of the Borrower and its
subsidiaries as at such dates and the results of their operations for the
respective periods then ended. Since the date of those statements, no material,
adverse change in the business, properties, assets, operations, conditions, or
prospects of the Borrower or any subsidiary has occurred of which the Lender has
not been advised in writing before this Agreement was signed. There is no known
contingent liability of the Borrower or any subsidiary which is known to be in
an amount in excess of $25,000 (excluding loan commitments, letters of credit,
and other contingent liabilities incurred in the ordinary course of the banking
business) that is not disclosed or reflected in such financial statements or of
which the Lender has not been advised in writing before this Agreement was
signed.
SECTION 5.4. TAXES. The Borrower and each subsidiary have filed or
caused to be filed all federal, state, and local tax returns, if any, which, to
the knowledge of the Borrower or any subsidiary, are required to be filed, and
have paid or have caused to be paid all taxes, including those shown on such
returns or on any assessment received by them, to the extent that such taxes
have become due (except for current taxes not delinquent and taxes being
contested in good faith and by appropriate proceedings for which adequate
reserves have been provided on the books of the Borrower or the appropriate
subsidiary, and as to which no foreclosure, distraint, sale, or similar
proceedings have been commenced).
-2-
3
SECTION 5.5. LIENS. None of the assets of the Borrower or any
subsidiary are subject to any mortgage, pledge, title retention lien, or other
lien, encumbrance, or security interest, except for: (a) current taxes not
delinquent or taxes being contested in good faith and by appropriate
proceedings; (b) liens arising in the ordinary course of business for sums not
due or sums being contested in good faith and by appropriate proceedings, but
not involving any deposits or advances or borrowed money or the deferred
purchase price of property or services; (c) liens and security interests
securing deposits of public funds, repurchase agreements, Federal funds
purchased, trust assets, and similar liens granted in the ordinary course of the
banking business; and (d) to the extent reflected in the financial statements
referred to above.
SECTION 5.6. ADVERSE CONTRACTS. Neither the Borrower nor any subsidiary
is a party to any agreement or instrument or subject to any charter or other
corporate restriction, nor is it subject to any judgment, decree or order of any
court or governmental body, that may have a material and adverse effect on the
business, assets, liabilities, financial condition, operations, or business
prospects of the Borrower and its subsidiaries taken as a whole or on the
ability of the Borrower to perform its obligations under this Agreement, the
Note or the Pledge Agreement. Neither the Borrower nor any subsidiary has
knowledge of or notice that it is in default in the performance, observance or
fulfillment of any of the obligations, covenants, or conditions contained in any
such agreement, instrument, restriction, judgment, decree, or order except as
the Borrower has notified the Lender in writing before the date of this
Agreement.
SECTION 5.7. REGULATION U. The Borrower is not engaged principally in,
nor is one of the Borrower's important activities, the business of extending
credit for the purpose of purchasing or carrying "margin stock" within the
meaning of Regulation U of the Board of Governors of the Federal Reserve System
as now and from time to time hereinafter in effect.
SECTION 5.8. LITIGATION AND CONTINGENT LIABILITIES. No litigation
(including derivative actions), arbitration proceedings, or governmental
proceedings are pending or, to the knowledge of the Borrower or its officers,
overtly threatened, against the Borrower or any subsidiary that would (singly or
in the aggregate), if adversely determined, have a material and adverse effect
on the financial condition, continued operations, or prospects of the Borrower
and its subsidiaries taken as a whole, except as set forth (including estimates
of the dollar amounts involved) in a schedule furnished by the Borrower to the
Lender before this Agreement was signed.
SECTION 5.9. SUBSIDIARIES. Each Subsidiary Bank and all other
subsidiaries and affiliates are listed in Exhibit C to this Agreement.
SECTION 5.10. BANK HOLDING COMPANY. To the best of its knowledge, the
Borrower has complied with all federal, state and local laws pertaining to bank
holding companies, including without limitation the Bank Holding Company Act of
1956, as amended, and to the best of its knowledge there are no conditions
precedent or subsequent to its engaging in the business of being a registered
bank holding company.
SECTION 6. COVENANTS
Until all obligations of the Borrower hereunder and under the Note and
Pledge Agreement are paid and fulfilled in full, the Borrower agrees that it
shall, and shall cause any subsidiary to, comply with the following covenants,
unless the Lender otherwise gives its prior written consent:
-3-
4
SECTION 6.1. CORPORATE EXISTENCE, MERGERS, ETC. The Borrower and each
subsidiary shall preserve and maintain its corporate existence, rights,
franchises, licenses, and privileges, and will not liquidate, dissolve, or merge
or consolidate with or into any other corporation, or sell, lease, transfer, or
otherwise dispose of all or a substantial part of its assets, except that:
(a) Any subsidiary (other than the Bank) may merge or consolidate
with or into any one or more wholly-owned subsidiaries of the
Borrower; and
(b) Any subsidiary (other than the Bank) may sell, lease,
transfer, or otherwise dispose of any of its assets to the
Borrower or one or more wholly-owned subsidiaries.
SECTION 6.2. REPORTS, CERTIFICATES, AND OTHER INFORMATION. The Borrower
shall furnish to the Lender:
(a) Interim Reports. Within forty-five (45) days after the end of
each quarter (except the last quarter) of each fiscal year of
the Borrower, a copy of an unaudited consolidated financial
statement of the Borrower and its subsidiaries prepared on a
basis consistent with the audited consolidated financial
statements referred to in Section 5.3 of this Agreement
(except that such reports do not need footnotes or statements
of changes as required for such audited statements), signed by
an authorized officer of the Borrower and consisting of at
least (i) a balance sheet as at the close of such quarter and
(ii) a statement of earnings for such quarter and for the
period from the beginning of such fiscal year to the close of
such quarter.
(b) Annual Report. Within ninety (90) days after the end of each
fiscal year of the Borrower, a copy of the annual report of
the Borrower and its subsidiaries prepared on a consolidated
basis and in conformity with generally accepted accounting
principles applied on a basis consistent with prior
consolidated financial statements of the Borrower and its
subsidiaries, which annual report shall be duly certified by
independent certified public accountants of recognized
standing satisfactory to the Lender, accompanied by an opinion
without significant qualification.
(c) Call Reports. Copies of the Bank's call reports at the same
time such reports are filed, or required to be filed, with any
regulatory agency.
(d) Certificates. Contemporaneously with the furnishing of a copy
of each annual report, and of each quarterly statement and of
each Call Report provided for in this Section, a certificate
signed by either the President or the Chief Financial Officer
of the Borrower, to the effect that no Event of Default or
Unmatured Event of Default has occurred and is continuing, or,
if there is any such event, describing it and the steps, if
any, being taken to cure it, and containing a computation of
and showing compliance with all financial ratios or
restrictions contained in this Agreement.
(e) Reports to Shareholders. Copies of each communication from the
Borrower or any subsidiary to shareholders generally, promptly
upon the filing or making thereof.
(f) Reports to and Filings with the Securities and Exchange
Commission. Promptly upon the filing or making thereof, copies
of each filing and report made by the Borrower or any
-4-
5
subsidiary (including any Subsidiary Bank) with or to the
Securities and Exchange Commission.
(g) Schedule of Non-Performing Loans. If such information shall
not be stated at least quarterly on the reports and filings
described in subsections (a), (b) and (c) of this Section 6.2,
promptly after the end of each quarter of each fiscal year of
the Borrower, a schedule signed by either the President or the
Chief Financial Officer of the Borrower, dated as of the last
day of such quarter, listing for the Borrower on a
consolidated basis the amount of all loans made by the
Borrower or any Subsidiary Bank that are ninety (90) days or
more past due (either principal or interest), in non-accrual
status, or listed as "other restructured" or "other real
estate owned" in any reports to regulatory authorities.
(h) Notice of Default, Litigation, and ERISA Matters. Immediately
upon learning of the occurrence of any of the following,
written notice describing the same and the steps being taken
by the Borrower or any subsidiary affected in respect thereof:
(i) the occurrence of an Event of Default or Unmatured Event
of Default; or (ii) the issuance of any cease and desist
order, memorandum of understanding, cancellation of insurance,
or proposed disciplinary action from the Federal Deposit
Insurance Corporation or other regulatory entity or the
institution of, or any adverse determination in, any
litigation, arbitration or governmental proceeding which is
material to the Borrower or any subsidiary on a consolidated
basis or to the Bank; or (iii) the occurrence of a reportable
event under, or the institution of steps by the Borrower or
any subsidiary to withdraw from, or the institution of any
steps to terminate, any employee benefit plans as to which the
Borrower or any of its subsidiaries may have any liability.
(i) Other Information. From time to time such other information,
financial or otherwise, concerning the Borrower, any
subsidiary, or delinquent or non-performing loans as to the
Lender may reasonably request.
SECTION 6.3. INSPECTION. The Borrower and any subsidiary shall permit
the Lender and its agents at any reasonable time during normal business hours to
inspect their properties and, to the full extent permitted by applicable law and
subject to applicable confidentiality laws, to inspect and make copies of their
books and records.
SECTION 6.4. FINANCIAL REQUIREMENTS. Borrower shall maintain a minimum
consolidated tangible net worth equal to at least twice the outstanding
principal balance of the Note. The Bank shall maintain Tier 1 capital in an
amount equal to at least twice the unpaid principal balance of the Note. For
purposes of this Section 6.4, the term "Tier 1 capital" shall have the meaning
attributed to it, and shall be determined in accordance with, the capital
formula currently used by the primary federal regulator of the Bank.
SECTION 6.5. INDEBTEDNESS, LIENS AND TAXES. The Borrower and each
subsidiary shall:
(a) Indebtedness. Not incur, permit to remain outstanding, assume
or in any way become committed for indebtedness in respect of
borrowed money or the deferred purchase price of property or
services (specifically including but not limited to
indebtedness in respect of money borrowed from financial
institutions but excluding deposits), except for: (i)
indebtedness incurred hereunder; (ii) indebtedness existing on
the date of this Agreement shown on the financial statements
furnished to the Lender before this Agreement was
-5-
6
signed; (iii) indebtedness of the Subsidiary Banks arising in
the ordinary course of the banking business of the Subsidiary
Banks; and (iv) indebtedness in the aggregate amount at any
one time not to exceed $20,000,000.
(b) Liens. Except for the pledge of Bank stock to Lender, not
create, suffer or permit to exist any lien, encumbrance, or
pledge of any kind or nature upon or of any of their assets
now or hereafter owned or acquired (specifically including but
not limited to the capital stock of any of the Subsidiary
Banks), or acquire or agree to acquire any property or assets
of any character under any conditional sale agreement or other
title retention agreement, but this Section shall not be
deemed to apply to: (i) liens existing on the date of this
Agreement which are reflected in the financial statements
referred to in Section 5.3 hereinabove; (ii) liens of
landlords, contractors, laborers or supplymen, tax liens, or
liens securing performance or appeal bonds or other similar
liens or charges arising out of the Borrower's business, but
not involving any deposits or advances or the deferred
purchase price of property or services, provided that tax
liens are removed before related taxes become delinquent and
other liens are promptly removed, in either case unless
contested in good faith and by appropriate proceedings, and as
to which adequate reserves shall have been established; (iii)
liens securing borrowings or advances from the Borrower by
wholly-owned subsidiaries; and (iv) liens on the assets of any
Subsidiary Bank arising in the ordinary course of the banking
business of such Subsidiary Bank.
(c) Taxes. Pay and discharge all taxes, assessments and
governmental charges or levies imposed upon them, upon their
income or profits or upon any properties belonging to them,
prior to the date on which penalties attach thereto, and all
lawful claims for labor, materials and supplies when due,
except that no such tax, assessment, charge, levy or claim
need be paid which is being contested in good faith by
appropriate proceedings and as to which adequate reserves
shall have been established, and as to which no foreclosure,
distraint, sale, or similar proceedings have commenced.
(d) Keep Well Agreements. Not assume, guarantee, endorse, or
otherwise become or be responsible in any manner (whether by
agreement to purchase any obligations, stock, assets, goods or
services, or to supply or advance any funds, assets, goods or
services, or otherwise) with respect to the obligation of any
other person or entity other than a wholly-owned subsidiary,
except (i) by the endorsement of negotiable instruments for
deposit or collection in the ordinary course of business,
issuance of letters of credit or similar instruments or
documents in the ordinary course of business, and (ii) as
permitted by this Agreement.
SECTION 6.6. INVESTMENT AND LOANS. Neither the Borrower nor any
subsidiary shall make any loan, advance, extension of credit, or capital
contribution to, or purchase or otherwise acquire for a consideration, evidences
of indebtedness, capital stock or other securities of any person, except that
(a) the Borrower may invest, by way of purchase of securities or capital
contributions, in the Subsidiary Banks or any other bank or banks, and upon the
Borrower's purchase or other acquisition of fifty percent (50%) of the stock of
any bank, such bank shall thereupon become a "Subsidiary Bank" for all purposes
under this Agreement; (b) the Borrower may invest, by way of loan, advance,
extension of credit (whether in the form of lease, conditional sales agreement,
or otherwise), purchase of securities, capital contributions, or otherwise, in
subsidiaries other than banks or Subsidiary Banks; (c) the Borrower and any
subsidiary may purchase or otherwise acquire or own short-term money market
items (specifically including but not limited to preferred stock mutual funds);
and (d) the Subsidiary Banks may make any
-6-
7
investment permitted by applicable governmental laws and regulations. Nothing in
this Section 6.6 shall prohibit the Borrower or any Subsidiary Bank from making
loans, advances, or other extensions of credit in the ordinary course of banking
upon substantially the same terms as heretofore extended by them in such
business or upon such terms as may at the time be customary in the banking
business.
SECTION 6.7. CAPITAL STRUCTURE AND DIVIDENDS. Neither the Borrower nor
any subsidiary shall declare or pay any dividend (other than dividends payable
in its own common stock or to the Borrower) or make any other distribution in
respect of such shares other than to the Borrower, except that the Borrower may
declare or pay cash dividends to holders of the stock of the Borrower in any
fiscal year in an amount not to exceed 50% of the Borrower's consolidated net
income for the immediately preceding fiscal year; provided that no Event of
Default or Unmatured Event of Default exists as of the date of such declaration
or payment or would result therefrom. The Borrower shall at all times own,
directly or indirectly, the same (or greater) percentage of the stock of each
subsidiary that it held on the date of this Agreement. No subsidiary shall issue
any additional voting shares of capital stock other than to the Borrower.
SECTION 6.8. MAINTENANCE OF PROPERTIES. The Borrower and any subsidiary
shall maintain, or cause to be maintained, in good repair, working order and
condition, all their properties (whether owned or held under lease), and from
time to time make or cause to be made all needed and appropriate repairs,
renewals, replacements, additions, betterments and improvements thereto, so that
the business carried on in connection therewith may be properly and
advantageously conducted at all times.
SECTION 6.9 INSURANCE. The Borrower and any subsidiary shall maintain
with insurers of recognized responsibility insurance in such amounts and against
such risks as is required by law and such other insurance, in such amount and
against such hazards and liabilities, as is customarily maintained by bank
holding companies and banks similarly situated. Each Subsidiary Bank shall have
deposits insured by the Federal Deposit Insurance Corporation.
SECTION 6.10. USE OF PROCEEDS.
(a) Regulation U. The Borrower and any subsidiary shall not use or
permit any proceeds of the Loans to be used, either directly
or indirectly, for the purpose, whether immediate, incidental
or ultimate, of "purchasing or carrying any margin stock"
within the meaning of Regulations U or X of the Board of
Governors of the Federal Reserve System, as amended from time
to time. If requested by the Lender, the Borrower and any
subsidiary will furnish to the Lender a statement in
conformity with the requirements of Federal Reserve Form U-1
to the foregoing effect. No part of the proceeds of the Loans
will be used for any purpose which violates or is inconsistent
with the provisions of Regulation U or X of the Board of
Governors.
(b) Tender Offers and Going Private. Without the Lender's prior
written consent, neither the Borrower nor any subsidiary shall
use (or permit to be used) any proceeds of the Loans to
acquire any security in any transaction which is subject to
Section 13 or 14 of the Securities Exchange Act of 1934, as
amended, or any regulations or rulings thereunder.
(c) Use of Proceeds. The proceeds of the Loan shall be used by the
Borrower for working capital.
-7-
8
SECTION 7. CONDITIONS OF LENDING
SECTION 7.1. DOCUMENTATION. In addition to the conditions precedent set
forth in Section 7.2, the obligation of the Lender to make the Loan is subject
to the conditions precedent that the Lender shall have received all of the
following, each duly executed and dated the date of the Note, in form and
substance satisfactory to the Lender and its counsel, at the expense of the
Borrower, and in such number of signed counterparts as the Lender may request
(except for the Note, of which only the original shall be signed):
(a) Note. The Note in the form of Exhibit A, with appropriate
insertions;
(b) Resolution. A copy of a resolution of the Board of Directors
of the Borrower authorizing or ratifying the execution,
delivery and performance, respectively, of this Agreement, the
Note, the Pledge Agreement and the other documents provided
for in this Agreement, certified by the Secretary of the
Borrower;
(c) Articles of Incorporation and By-laws. A copy of the articles
of incorporation and by-laws of the Borrower, certified by the
Secretary of the Borrower;
(d) Certificate of Incumbency. A certificate of the Secretary of
the Borrower certifying the names of the officer or officers
of the Borrower authorized to sign this Agreement, the Note,
the Pledge Agreement and the other documents provided for in
this Agreement, together with a sample of the true signature
of each such officer (the Lender may conclusively rely on such
certificate until formally advised by a like certificate of
any changes therein);
(e) Certificate of No Default. A certificate signed by the
President, the Chief Financial Officer or the Treasurer of the
Borrower to the effect that: (i) no Event of Default or
Unmatured Event of Default has occurred and is continuing or
will result from the making of the Loan; and (ii) the
representations and warranties of the Borrower contained
herein are true and correct as at the date of the Loan as
though made on that date; and
(f) Miscellaneous. Such other documents and certificates as the
Lender may reasonably request.
SECTION 7.2. REPRESENTATIONS AND WARRANTIES; NO DEFAULT.
(a) Representations and Warranties. At the date of the Note, the
Borrower's representations and warranties set forth herein
shall be true and correct as at such date with the same effect
as though those representations and warranties had been made
on and as at such date.
(b) No Default. At the date of the Note, and immediately after
giving effect to the Loan, the Borrower shall be in compliance
with all the terms and provisions set forth herein on its part
to be observed or performed, and no Event of Default or
Unmatured Event of Default shall have occurred and be
continuing at the time of the Loan, or would result from the
making of such Loan.
-8-
9
SECTION 8. DEFAULT
SECTION 8.1. EVENTS OF DEFAULT. Each of the following occurrences is
hereby defined as an "Event of Default":
(a) (i) Failure to pay, when and as due, any principal payable
under the Note; or (ii) (I) failure to pay, when and as due,
any interest or other amounts payable under the Note, or
failure to comply with or perform any agreement or covenant of
Borrower contained herein and (II) such failure shall continue
for a period of five (5) calendar days; or
(b) Any default, event of default, or similar event shall occur or
continue under the Pledge Agreement or any other instrument,
document, note, agreement, or guaranty delivered to Lender in
connection with this Agreement or the Note, or any such
instrument, document, note, agreement, or guaranty shall not
be, or shall cease to be, enforceable in accordance with its
terms; or
(c) There shall occur any default or event of default, or any
event that might become such with notice or the passage of
time or both, or any similar event, or any event that requires
the prepayment of borrowed money or the acceleration of the
maturity thereof, under the terms of any evidence of
indebtedness or other agreement issued or assumed or entered
into by Borrower, the Bank, any general partner or joint
venturer of Borrower, or any guarantor, or under the terms of
any indenture, agreement, or instrument under which any such
evidence of indebtedness or other agreement is issued,
assumed, secured, or guaranteed, and such event shall continue
beyond any applicable period of grace; or
(d) Any representation, warranty, schedule, certificate, financial
statement, report, notice, or other writing furnished by or on
behalf of Borrower, the Bank, any general partner or joint
venturer of Borrower, or any guarantor to Lender is false or
misleading in any material respect on the date as of which the
facts therein set forth are stated or certified; or
(e) Borrower or Bank shall fail to maintain their existence in
good standing in their state of formation or shall fail to be
duly qualified, in good standing and authorized to do business
in each jurisdiction where failure to do so might have a
material adverse impact on the consolidated assets, condition
or prospects of Borrower; or
(f) Borrower, Bank, any general partner or joint venturer of
Borrower, or any guarantor shall die, become incompetent,
dissolve, liquidate, merge, consolidate, or cease to be in
existence for any reason; or
(g) Any person or entity presently not in control of Borrower
shall obtain control directly or indirectly of Borrower,
whether by purchase or gift of stock or assets, by contract,
or otherwise; or
(h) Any proceeding (judicial or administrative) shall be commenced
against Borrower, Bank, any general partner or joint venturer
of Borrower, or any guarantor, or with respect to any assets
of Borrower, Bank, any general partner or joint venturer of
Borrower, or any guarantor which shall threaten to have a
material and adverse effect on the future operations or
financial condition of Borrower, Bank, any general partner or
joint venturer
-9-
10
of Borrower, or any guarantor; or final judgment(s) and/or
settlement(s) in an aggregate amount in excess of Fifty
Thousand United States Dollars ($50,000) in excess of
insurance for which the insurer has confirmed coverage in
writing, a copy of which writing has been finished to Lender,
shall be entered or agreed to in any suit or action commenced
against Borrower, Bank, any general partner or joint venturer
of Borrower, or any guarantor; or
(i) The Federal Deposit Insurance Corporation or other regulatory
entity shall issue a cease and desist order against the
Borrower or Bank; or the Federal Deposit Insurance Corporation
or other regulatory entity shall issue an order against the
Borrower or Bank materially adverse to the business or
operation of the Borrower or Bank; or
(j) Any bankruptcy, insolvency, reorganization, arrangement,
readjustment, liquidation, dissolution, or similar proceeding,
domestic or foreign, is instituted by or against Borrower,
Bank, any general partner or joint venturer of Borrower, or
any guarantor; or Borrower, Bank, any general partner or joint
venturer of Borrower, or any guarantor shall take any steps
toward, or to authorize, such a proceeding; or
(k) Borrower, Bank, any general partner or joint venturer of
Borrower, or any guarantor shall become insolvent, generally
shall fail or be unable to pay its(his)(her) debts as they
mature, shall admit in writing its(his)(her) inability to pay
its(his)(her) debts as they mature, shall make a general
assignment for the benefit of its(his)(her) creditors, shall
enter into any composition or similar agreement, or shall
suspend the transaction of all or a substantial portion of
its(his)(her) usual business.
SECTION 8.2. REMEDIES. Upon the occurrence of any Event of Default set
forth in subsections (a)-(i) of Section 8.1 and during the continuance thereof,
the Lender or any other holder of the Note may declare the Note and any other
amounts owed to the Lender to be immediately due and payable, whereupon the Note
and any other amounts payable hereunder shall forthwith become due and payable.
Upon the occurrence of any Event of Default set forth in subsections (j)-(k) of
Section 8.1, the Note and any other amounts owed to the Lender shall be
immediately and automatically due and payable without action of any kind on the
part of the Lender or any other holder of the Note. The Borrower expressly
waives presentment, demand, notice, or protest of any kind in connection
herewith. No delay or omission on the part of the Lender or any holder of the
Note in exercising any power or right hereunder or under the Note shall impair
such right or power or be construed to be a waiver of any Event of Default or
Unmatured Event of Default or any acquiescence therein, nor shall any single or
partial exercise of power or right hereunder preclude other or further exercise
thereof, or the exercise of any other power or right.
SECTION 9. DEFINITIONS
SECTION 9.1. GENERAL. As used herein:
(a) The term "affiliate" means any corporation of which the
Borrower owns directly or indirectly 20% or more, but less
than 50%, of the outstanding voting stock, or any partnership,
joint venture, trust or other legal entity of which the
Borrower has effective control, by contract or otherwise.
-10-
11
(b) The term "guarantor" means any person or entity, or any
persons or entities severally, now or hereafter guarantying
payment or collection of all or any part of the Loans.
(c) The term "subsidiary" means any corporation, partnership,
joint venture, trust, or other legal entity of which the
Borrower owns directly or indirectly 50% or more of the
outstanding voting stock or interest, or of which the Borrower
has effective control, by contract or otherwise, and shall
include all Subsidiary Banks.
(d) The term "Unmatured Event of Default" means an event or
condition which would become an Event of Default, with notice
or the passage of time or both.
(e) Except as and unless otherwise specifically provided herein,
all accounting terms in this Agreement shall have the meanings
given to them by generally accepted accounting principles and
shall be applied and all reports required by this Agreement
shall be prepared, in a manner consistent with the most recent
financial statements provided to the Lender before this
Agreement was signed.
SECTION 10. MISCELLANEOUS
SECTION 10.1. WAIVER OF DEFAULT. The Lender may, by written notice to
the Borrower, at any time and from time to time, waive any default in the
performance or observance of any condition, covenant or other term hereof, which
shall be for such period and subject to such conditions as shall be specified in
any such notice. In the case of any such waiver, the Lender and the Borrower
shall be restored to their former position and rights hereunder and under the
Note, respectively, and any Event of Default or Unmatured Event of Default so
waived shall be deemed to be cured and not continuing; but no such waiver shall
extend to or impair any right consequent thereon or to any subsequent or other
Event of Default or Unmatured Event of Default.
SECTION 10.2. NOTICES. All notices and requests to or upon the
respective parties hereto shall be deemed to have been given or made when
deposited in the mail, postage prepaid and all demands shall be deemed to have
been made when deposited in the mail, certified or registered with return
receipt requested, addressed, in each instance, as follows:
(a) if to the Lender to 000 Xxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxx
00000 (Attention: President);
(b) if to the Borrower to 000 Xxxx Xxxxxxx Xxxxxx, Xxxxx Xxx.
Xxxxx, Xxxxxxxx 00000 (Attention: President)
or to such other address as may be hereafter designated in writing by the
respective parties hereto.
SECTION 10.3. NONWAIVER; CUMULATIVE REMEDIES. No failure to exercise,
and no delay in exercising, on the part of the Lender of any right, power or
privilege hereunder shall preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies of the
Lender herein provided are cumulative and not exclusive of any rights or
remedies provided by law.
SECTION 10.4. SURVIVAL OF AGREEMENTS. All agreements, representations
and warranties made herein shall survive the delivery of the Note and the Pledge
Agreement and the making of the Loan hereunder.
-11-
12
SECTION 10.5. SUCCESSORS. This Agreement shall, upon execution and
delivery by the Borrower, and acceptance by the Lender in Manistique, Michigan
become effective and shall be binding upon and inure to the benefit of the
Borrower, the Lender and their respective successors and assigns, except that
the Borrower may not transfer or assign any of its rights or interest hereunder
without the prior written consent of the Lender.
SECTION 10.6. CAPTIONS. Captions in this Agreement are for convenience
of reference only and shall not define or limit any of the terms or provisions
hereof. References herein to Sections or provisions without reference to the
document in which they are contained are references to this Agreement.
SECTION 10.7. SINGULAR AND PLURAL. Unless the context requires
otherwise, wherever used herein the singular shall include the plural and vice
versa, and the use of one gender shall also denote the others where appropriate.
SECTION 10.8 COUNTERPARTS. This Agreement may be executed by the
parties on any number of separate counterparts, and by each party on separate
counterparts; each counterpart shall be deemed an original instrument; and all
of the counterparts taken together shall be deemed to constitute one and the
same instrument.
SECTION 10.9. FEES. The Borrower agrees, upon written request of the
Lender, to pay or reimburse the Lender for all reasonable costs and expenses of
preparing, negotiating, amending or enforcing this Agreement, the Note or the
Pledge Agreement, or preserving its rights hereunder or under any document or
instrument executed in connection herewith (including legal fees and reasonable
time charges of attorneys who may be employees of the Lender, whether in or out
of court, in original or appellate proceedings or in bankruptcy).
SECTION 10.10. CONSTRUCTION. This Agreement, the Note, the Pledge
Agreement and any document or instrument executed in connection herewith shall
be governed by, and construed and interpreted in accordance with, the internal
laws of the State of Michigan, and shall be deemed to have been executed in the
State of Michigan.
SECTION 10.11. SUBMISSION TO JURISDICTION; VENUE. To induce the Lender
to make the Loans, as evidenced by the Note and this Agreement, the Borrower
irrevocably agrees that, subject to the Lender's sole and absolute election, all
suits, actions other proceedings in any way, manner or respect, arising out of
or from or related to this Agreement, the Note, the Pledge Agreement or any
document executed in connection herewith, shall be subject to litigation in
courts having situs within Grand Rapids, Michigan. The Borrower hereby consents
and submits to the jurisdiction of any local, state or federal court located
within Grand Rapids, Michigan. The Borrower hereby waives any right it may have
to transfer or change the venue of any suit, action or other proceeding brought
against the Borrower by the Lender in accordance with this Section, or to claim
that any such proceeding has been brought in an inconvenient forum.
UNIVERSITY BANCORP, INC. NORTH COUNTRY BANK AND TRUST
BY BY
NAME: NAME:
TITLE: TITLE:
-12-
13
EXHIBIT A
PROMISSORY NOTE
$925,000.00 Sault Ste. Xxxxx, Michigan
December 31, 1997
FOR VALUE RECEIVED, UNIVERSITY BANCORP, INC., a Delaware corporation,
of 000 Xxxx Xxxxxxx Xxxxxx, Xxxxx Xxx. Xxxxx, XX 00000 (the "Borrower"),
promises to pay to the order of NORTH COUNTRY BANK AND TRUST, a Michigan banking
corporation (the "Lender"), at 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxx, XX 00000, or
at such other place as the holder may designate in writing, the principal sum of
Nine Hundred Twenty-five Thousand Dollars ($925,000.00), together with interest
in accordance with the terms of this Note.
Interest Rate. The interest rate shall be the Prime Rate (as
hereinafter defined) plus one-one percent (1%). Interest shall be computed on
the basis of a 365-day year for the actual number of days outstanding. "Prime
Rate" shall mean that variable rate of interest per annum from time to time
published in the Wall Street Journal, as the prime rate of interest which may
not be the lowest rate of interest being charged by banks to their most credit
worthy customers. Any change in the interest rate occasioned by a change in the
Prime Rate shall be effective as of the date of such change.
Notwithstanding the foregoing, during all times that there exists an
event of default and after maturity, the interest rate shall be a per annum rate
which is two percent (2%) higher than the interest rate otherwise in effect, but
never less than the interest rate in effect immediately following such default
or maturity. In addition, a late payment charge to defray administrative
expenses in the amount of $.05 for each dollar overdue for more than fifteen
(15) days may be assessed by the holder.
Payment. Accrued interest only shall be paid on February 15, 1998, and
thereafter accrued interest plus Thirty-three Thousand Dollars ($33,000) of
principal shall be paid on the 15th day of May and on the 15th day of each
August, November, February and May thereafter until February 15, 2005, when all
outstanding principal and accrued interest shall be paid in full. All payments
shall first be applied against accrued interest, costs and late payment charges,
and the balance shall be applied against the principal.
Prepayment. Borrower may prepay the principal, in whole or in part, at
any time without premium or penalty. Borrower may from time to time prepay any
principal, in whole or in part at any time, without premium of penalty. All
prepayments of principal shall include interest accrued to the date of
prepayment on the principal amount being prepaid. Amounts prepaid may not be
reborrowed. Any partial prepayments shall be applied to principal last coming
due.
Security. The indebtedness evidenced by this Note and any extensions,
renewals or modifications of such indebtedness is secured by shares of capital
stock of University Bank pursuant to a Pledge Agreement ("Pledge") of even date
executed by Borrower.
Events of Default; Acceleration. This Note evidences indebtedness
incurred under a certain Loan Agreement dated as of December 31, 1997, executed
by and between the Borrower
14
and the Lender (and, if amended, restated or replaced, all amendments,
restatements and replacements thereto or therefore, if any,)(the "Loan
Agreement"), to which Loan Agreement reference is hereby made for a statement of
terms and provisions, including those under which this Note may be considered in
default and have its due date accelerated.
Upon the occurrence of an event of default, the holder of this Note
may, without notice or demand, declare the entire principal balance of this
Note, together with all accrued interest, immediately due and payable.
General Provisions. Any failure by the holder to exercise any right
under this Note, including the right to accelerate Borrower's obligations upon
the occurrence of an event of default, shall not constitute a waiver of the
right to exercise such right while such default continues or upon another
default. No waiver or release shall be binding against the holder unless given
in writing by such holder.
In addition to all indebtedness and accrued interest, Borrower agrees
to pay all costs of collection and enforcement of this Note, the Pledge or any
related agreement including, without limitation, attorneys fees.
At no time shall the interest rate on this Note exceed the highest
interest rate permitted by law; to the extent amounts received by the holder are
attributable to an interest rate in excess of that permitted by law, such
amounts shall be deemed permitted prepayments of principal last coming due and
applied as such without premium or penalty.
Borrower waives presentment, demand, protest, notice of protest and
notice of dishonor of this Note, except as otherwise provided herein.
This Note shall be governed by and construed in accordance with the
laws of the state of Michigan.
UNIVERSITY BANCORP, INC.
By Xxxxxxx X. Xxxxxxx
Its President & CEO
And By Xxxxxx X. Xxxxxxx
Its Chairman & Secretary
-2-
15
EXHIBIT B
PLEDGE AGREEMENT
This is an agreement made as of the 31st day of December 1997, by and
between UNIVERSITY BANCORP, INC., 000 Xxxx Xxxxxxx Xxxxxx, Xxxxx Xx. Xxxxx, XX
00000 (the "Pledgor") in favor of NORTH COUNTRY BANK AND TRUST, a Michigan
banking corporation of 000 Xxxxx Xxxxx, Xxxxxxxxxx, XX 00000 (the "Lender").
RECITALS:
The Pledgor is proposing to borrow Nine Hundred Twenty-five Thousand
Dollars ($925,000.00) (the "Loan") from the Lender pursuant to a promissory note
of even date (the promissory note is referred to in this Agreement as the
"Note"). The Lender has agreed to lend the funds to the Pledgor but will not do
so unless and until the Lender receives a pledge of all the issued and
outstanding capital stock of University Bank, Ann Arbor, Michigan ("Bank") as
provided in a certain Loan Agreement of even date ("Loan Agreement"). In order
to induce the Lender to make the loan to the Pledgor, the Pledgor is willing to
pledge all the capital stock of the Bank ("Pledged Stock") to Lender to secure
the obligations of the Pledgor under the Note.
NOW THEREFORE, the Pledgor agrees and engages with the Lender as
follows:
AGREEMENT
1. Pledgor represents, warrants and agrees that all of the certificates
representing the Pledged Stock are genuine and all shares of the Pledged Stock
are duly and validly issued and outstanding and all shares of Pledged Stock are
free from any adverse claims or any other security interests or restrictions on
transfer, except as stated on the certificates representing the shares, and all
persons or entities executing this document have full authority and capacity to
do so and are fully bound by the terms and conditions of this Agreement and the
Pledged Stock constitutes one hundred percent (100%) of the issued and
outstanding capital stock of the Bank.
2. The Pledgor, in consideration of the Lender making the Loan to the
Pledgor and accepting Pledgor's Note, acknowledges and agrees that the Lender
shall have, and the Pledgor shall and does hereby grant to the Lender a security
interest in, and pledges to the Lender, the Pledged Stock, which is more fully
described on Exhibit I attached hereto and incorporated by reference.
3. The Lender shall hold the Pledged Stock as security for payment of
the principal amount of the Note plus interest thereon. Pledgor hereby appoints
the Lender as attorney to transfer the Pledged Stock to the name of the Lender
on the books of the Bank. However, until an event of default by the Pledgor in
payment on the Note, the Lender shall hold the certificates in the Pledgor's
name in the form received, duly endorsed for transfer or accompanied by separate
stock powers. In the event of an event of default by Pledgor in payment on the
Note
16
or if any event occurs which would be an event of default as defined in the Loan
Agreement, the Lender shall have the right to transfer the Pledged Stock to its
name on the books of the Bank for the purpose of exercising its rights as a
secured creditor. The Lender shall not encumber or dispose of the Pledged Stock
except in accordance with Paragraph 8 hereof.
4. All dividends paid with respect to the Pledged Stock shall belong to
the Pledgor so long as the Pledgor is not in default under this Agreement or
under the Loan Agreement and so long as the Pledgor is not in default in payment
of the Note.
5. As long as there is not an event of default under this Agreement or
under the Loan Agreement and as long as the Pledgor is not in default in payment
under the Note, Pledgor shall have the right to vote the Pledged Stock on all
matters submitted to stockholder vote.
6. In the event of any stock dividend, distribution, reclassification
or other adjustment in the capitalization of the Bank, any additional shares or
other securities issued by reason thereof with respect to the Pledged Stock
shall be held by the Lender as collateral security as aforesaid, subject to the
terms of this Agreement.
7. The Pledgor also agrees: (a) to any extension of time for the
payment of the Note without limit as to the number or the aggregate period of
such extensions; (b) that the Lender may make or consent to any form of
adjustment, compromise or composition respecting any indebtedness of the Pledgor
or any collateral securing the same and may release any or all such security;
(c) to the granting of any other indulgences to the Pledgor; (d) that any and
all of the foregoing may be without notice to or the further consent of the
Pledgor; and (e) that none of the foregoing actions shall in any way affect,
reduce or extinguish the interest of the Lender in the Pledged Stock.
8. In the event an event of default shall be in effect under this
Agreement or under the Loan Agreement or in the event that the Pledgor defaults
in payment of principal or interest on the Note which default is not cured
within the time period provided under the Note or the Loan Agreement, and such
event of default remains in effect, the Lender may, upon fifteen (15) business
days prior written notice to the Pledgor at the address stated at the end of
this Agreement by certified mail or by facsimile transmission or by personal
delivery, sell the Pledged Stock at public or private sale in accordance with
the requirements of Michigan law. The Lender may purchase the Pledged Stock or
any part thereof at any such sale to the extent permitted by Michigan law. Out
of the proceeds of any sale, the Lender shall retain an amount equal to the
principal and interest then due on the Note plus the amount of the expenses of
the sale and shall pay any balance of the proceeds to the Pledgor.
9. Upon the Pledgor's payment of the entire principal of the Note,
together with all interest due thereon, the Pledged Stock shall be released from
the terms of this Agreement and shall be delivered by the Lender to the Pledgor,
duly endorsed for transfer or accompanied by a duly executed stock power and
this Agreement shall be cancelled and terminated.
10. The Agreement may be signed in multiple counterparts each of which
shall be deemed an original. This is the entire agreement of the Pledgor as to
the subject matter of this
-2-
17
Agreement. This Agreement shall be governed by and interpreted in accordance
with the laws of the State of Michigan.
IN WITNESS WHEREOF, the Pledgor has executed this Agreement as of this
31st day of December, 1997.
PLEDGOR:
UNIVERSITY BANCORP, INC.
BY Xxxxxxx X. Xxxxxxx
ITS President & CEO
Address and Facsimile Number for Notice Purposes:
000 Xxxx Xxxxxxx Xxxxxx
Xxxxx Xxx. Xxxxx, XX 00000
Facsimile No. (000) 000-0000
-3-
18
EXHIBIT I
TO PLEDGE AGREEMENT
The Pledged Stock consists of Twenty Thousand (20,000) shares of the common
stock of University Bank represented by the following certificates delivered by
Pledgor to the Lender:
Certificate No. Registered Owner Number of Shares
--------------- ---------------- ----------------
479 University Bancorp, Inc. 20,000
(formerly known as
Xxxxxxxx Bancorp, Inc.)
19
EXHIBIT C
LIST OF SUBSIDIARIES
1. University Bank, a Michigan banking corporation, Ann Arbor, MI
20
CERTIFICATE
ARTICLES OF INCORPORATION
The undersigned does hereby certify that attached hereto is a true and
correct copy of the Articles of Incorporation of University Bancorp, Inc., a
Delaware corporation, and all amendments thereto, as in effect on the date
hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this 31st day of
December, 1997.
/s/ Xxxxxx X. Xxxxxxx
------------------------------
Secretary
UNIVERSITY BANCORP, INC.
21
CERTIFICATE
BYLAWS
The undersigned does hereby certify that attached hereto is a true and
correct copy of the Bylaws of University Bancorp, Inc., a Delaware corporation,
and all amendments thereto, as in effect on the date hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this 31st day of
December, 1997.
/s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Secretary
UNIVERSITY BANCORP, INC.
22
CERTIFICATE
NO DEFAULT - REPRESENTATION ACCURATE
The undersigned does hereby certify that:
1. No "Event of Default" or "Unmatured Event of Default" as defined in
that certain Agreement (the "Loan Agreement") dated as of December 31, 1997,
executed by and between UNIVERSITY BANCORP, INC. and NORTH COUNTRY BANK AND
TRUST has occurred and is continuing as of the date of this Certificate.
2. All representations and warranties contained in the Loan Agreement
are true and complete in all material respects as of the date of this
Certificate with the same force and effect as if made on and as of the date
hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this 31st day of
December, 1997.
UNIVERSITY BANCORP, INC.
By
Its President & CEO
23
CERTIFICATE BORROWING RESOLUTION
AND INCUMBENCY
The undersigned certifies that set forth below is a copy of a
Resolution of UNIVERSITY BANCORP, INC., a Delaware corporation ("Corporation"),
which Resolution was properly adopted by the Board of Directors of the
Corporation and is still in effect.
BORROWING RESOLUTION
"Resolved that this Corporation borrow from NORTH COUNTRY BANK AND
TRUST an aggregate principal amount of Nine Hundred Twenty-five Thousand Dollars
($925,000), pursuant to that certain Note, Loan Agreement and Pledge Agreement,
all in the form filed herewith (all of the foregoing, and all other instruments,
documents and agreements to be executed in connection with such loans or
extensions of credit are hereinafter called the "Documents"), that the form of
the Documents is hereby approved; that Xxxxxx X. Xxxxxxx and Xxxxxxx X. Xxxxxxx
be and each, acting alone, hereby is designated to execute and deliver the
Documents with such changes as he may approve as evidenced by his execution of
the Documents; that the Secretary or any assistant secretary be and hereby is
authorized to attest to the execution and affix the corporate seal if such
attestation is required by the Bank; that Xxxxxx X. Xxxxxxx and Xxxxxxx X.
Xxxxxxx be and each, acting alone, hereby is authorized to execute such other
documents and take such other action as may be necessary or desirable to carry
out the provisions of the Documents; and that any action previously taken or
made by any of the foregoing officers, directors or employees to approve, sign,
execute or deliver the Documents is hereby approved, adopted and ratified."
The undersigned hereby certifies that the persons who may execute and
deliver the Documents, as authorized by the foregoing resolution, have been duly
elected, have duly qualified as, and this day are officers of the Corporation
holding the respective office listed opposite each name, and the signature set
forth opposite the respective name is the signature of such person:
Name Office Signature
Xxxxxx X. Xxxxxxx Chairman & Secretary
Xxxxxxx X. Xxxxxxx President & CEO
Dated: December 31, 1997
/s/ XXXXXX X. XXXXXXX
-----------------------------------
Secretary
UNIVERSITY BANCORP, INC.
ATTEST:
/s/ Xxxxxxx X. Xxxxxxx
President & CEO of
UNIVERSITY BANCORP, INC.
24
STOCK POWER
FOR VALUE RECEIVED, UNIVERSITY BANCORP, INC., hereby sells, assigns and
transfers unto NORTH COUNTRY BANK AND TRUST, Twenty Thousand (20,000) shares of
the common capital stock of UNIVERSITY BANK standing in the name of the
undersigned on the books of UNIVERSITY BANK and represented by Certificate No.
479 herewith and does hereby irrevocably constitute and appoint NORTH COUNTRY
BANK AND TRUST attorney to transfer said stock on the books of UNIVERSITY BANK
with full power of substitution in the premises.
Dated: December 31, 1997. UNIVERSITY BANCORP, INC.
(FORMERLY KNOWN AS XXXXXXXX BANCORP, INC.)
By Xxxxxxx X. Xxxxxxx
Its President & CEO
