FOURTH AMENDED AND RESTATED LOAN AGREEMENT SECOND WAIVER AND AMENDMENT
Exhibit
8
FOURTH
AMENDED AND RESTATED LOAN AGREEMENT
SECOND
WAIVER AND AMENDMENT
THIS SECOND WAIVER AND AMENDMENT, dated
as of November 21, 2009 (this “Waiver”), is entered
into by and among Mercantile Bancorp, Inc., a Delaware corporation (“Borrower”), and Great
River Bancshares, Inc., a Nevada corporation (“Lender”). All
capitalized terms used herein and not otherwise defined herein shall have the
meanings given to such terms in the Amended Loan Agreement (as defined below) as
further amended by this Waiver.
RECITALS
WHEREAS, Borrower and Lender are
parties to that certain Fourth Amended and Restated Loan Agreement dated as of
April 30, 2009 (the “Loan Agreement”) and
that certain Fourth Amended and Restated Loan Agreement Waiver and Amendment,
dated as of August 10, 2009 (the “August Waiver;” and
together with the Loan Agreement, the “Amended Loan
Agreement”);
WHEREAS, Borrower has breached Sections
5.11, 5.13 and 6.12 of the Amended Loan Agreement (the “Breached
Provisions”), and as a result an Event of Default, as defined
in Section 7 of the Amended Loan Agreement, has
occurred;
WHEREAS,
Borrower has requested that Lender waive the Event of Default under the Amended
Loan Agreement resulting solely from the Breached Provisions, and Lender is
willing to waive such Event of Default in accordance with the terms and
conditions of this Waiver;
WHEREAS,
Lender and Borrower also desire to modify the payment dates for the payment of
the principal amounts outstanding on the Revolving Loan and Term Loan A, Term
Loan B and Term Loan C;
WHEREAS,
Borrower has requested that Lender loan to Borrower
additional funds, and Lender has agreed to lend such funds to Borrower on the
terms and conditions set forth herein; and
WHEREAS,
Borrower and Lender desire to further amend certain sections of the Amended Loan
Agreement as set forth in this Waiver.
NOW, THEREFORE, in consideration of the
premises and the mutual covenants contained herein, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Waiver. Subject
to the other terms and conditions of this Waiver, Lender hereby waives the Event
of Default caused solely by: (i) Borrower’s failure to comply with Section
5.13
of the
Amended Loan Agreement as of September 30, 2009; (ii) Borrower’s failure to
comply with Section 6.12 of the Amended Loan Agreement through the date hereof;
and (iii) Borrower’s failure to comply with the requirements contained in
Section 5.11 of the Amended Loan Agreement with respect to the failure of
Borrower and Royal Palm Bank to maintain a “well-capitalized” rating under the
Capital Guidelines and 12 U.S.C. §1831o through the date
hereof. Lender hereby waives the requirements of the last sentence of
Section 5.11 with respect to (1) Royal Palm Bank until the earlier of
(a) the contribution of $11 million of capital to Royal Palm Bank or (b) January
31, 2010, and (2) with respect to Borrower until January 31,
2010. Lender also hereby extends the principal payments on the Term
Note A as set forth herein. Except for the waiver and extension expressly set
forth in the immediately preceding three sentences, this Waiver does not modify
or affect the obligations of the Borrower to comply fully with all terms,
conditions and covenants contained in the Amended Loan Agreement (as amended
below) or any of the other Transaction Documents. Nothing contained in this
Waiver shall be deemed to constitute a waiver of any other Default or Event of
Default under the Amended Loan Agreement or any of the other Transaction
Documents or a waiver of any rights or remedies Lender may have arising as a
result of such other Defaults or Events of Default or any other rights or
remedies Lender may have under the Amended Loan Agreement, any of the other
Transaction Document or under applicable law. From and after the date
of this Waiver, the amounts outstanding under the Amended Loan Agreement shall
cease accruing interest at the default rate set forth in Section 2.04(e) of the
Amended Loan Agreement; provided, that nothing contained herein shall limit
Lender’s ability to charge or collect interest at the default rate contemplated
by Section 2.04(e) of the Amended Loan Agreement upon the occurrence of any
Event of Default occurring on or after the date hereof.
2. Amendments. The
Amendment Loan Agreement shall be further amended by deleting the following
Sections: 2.02; 2.04(c); 2.04(f); 2.04(g); the introductory language to 3.02;
3.02(b); 3.02(g); the closing language of 3.02; 5.03(f); 5.03(g); 5.03(h); 5.13;
5.14(i); 6.12; and 7.12 in their entirety and replacing them with the
following:
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(i)
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“2.02 Term Loan
Commitments.
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(a)
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Lender
has acquired from US Bank and assumed all of US Bank's right, title and
interest in and to a term loan of Fifteen Million One Hundred Nine
Thousand One Hundred Twelve Dollars and Fifty Cents ($15,109,112.50)
(“Term Loan
A”) initially made by US Bank to Borrower pursuant to the Original
Loan Agreement. Term Loan A is not revolving in nature and any
principal repaid on Term Loan A may not be reborrowed. The
principal amount of Term Loan A shall be due and payable in two (2)
installments as follows: the first installment in the amount of $750,000
shall be due and payable on September 30, 2009, which amount has been paid
by Borrower; and a final installment in the amount of the then outstanding
and unpaid principal balance of Term Loan A shall be due and payable on
the earlier of January 31, 2010 and the Closing
Date.
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(b)
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Lender
has acquired from US Bank and assumed all of US Bank’s right, title and
interest in and to a term loan of Five Million Thirty Six Thousand Six
Hundred Nine Dollars and Seventy Two Cents ($5,036,609.72) (“Term Loan B”)
initially made by US Bank to Borrower pursuant to the Original Loan
Agreement. Term Loan B is not revolving in nature and any
principal repaid on Term Loan B may not be reborrowed. The
principal amount of Term Loan B shall be due and payable in two
installments as follows: the first installment in the amount of
$375,000.00 shall be due and payable on March 31, 2010; and, the final
installment in the amount of the then outstanding and unpaid principal
balance of Term Loan B shall be due and payable on August 31, 2010;
provided, that notwithstanding the foregoing, the then outstanding and
unpaid principal balance of Term Loan B, if any, shall become immediately
due and payable on the Closing
Date.
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(c)
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Lender
has acquired from US Bank and assumed all of US Bank's right, title and
interest in and to a term loan of Two Million Fourteen Thousand Nine
Hundred Seventy Eight Dollars and Thirty Four Cents ($2,014,978.34)
(“Term Loan
C”) initially made by US Bank to Borrower pursuant to the Original
Loan Agreement. Term Loan C is not revolving in nature and any
principal repaid on Term Loan C may not be reborrowed. The principal
amount of Term Loan C shall be due and payable in two installments as
follows: the first installment in the amount of $375,000.00 shall be due
and payable on March 31, 2010; and, the final installment in the amount of
the then outstanding and unpaid principal balance of Term Loan C shall be
due and payable on August 31, 2010; provided, that notwithstanding the
foregoing, the then outstanding and unpaid principal balance of Term Loan
C, if any, shall become immediately due and payable on the Closing
Date.”
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(ii)
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“2.04(c).
Interest on the Revolving Loans, Term Loan A, Term Loan B, Term
Loan C, Term Loan D and the Liquidity Revolving Loans shall accrue at a
fixed annual rate of Seven and One-Half Percent
(7.50%). Interest on the Revolving Loans and the Liquidity
Revolving Loans shall be paid in consecutive quarterly installments due
and payable on each February 10, May 10, August 10, and November 10 and on
the last day of the Revolving Credit Period or the Liquidity Revolving
Credit Period, as applicable. Interest on each Term Loan shall
be paid in consecutive quarterly installments due and payable on each
February 10, May 10, August 10, and November 10 and on the maturity dates
of the Term Notes.”
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(iii)
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“2.04(f). Borrower
shall have the right to prepay any Revolving Loan or Liquidity Revolving
Loan in whole or in part at any time, provided: (i) all accrued and unpaid
interest shall accompany such prepayment; and (ii) all prepayments shall
be credited and applied first to the principal amount and then to any
accrued and unpaid interest.”
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(iv)
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“2.04(g). Borrower
shall have the right to prepay the Term Loan A, Term Loan B, Term Loan C
or Term Loan D in whole or in part at any time, provided: (i) all accrued
and unpaid interest shall accompany such prepayment; and (ii) all
prepayments shall be credited and applied first to the installments of
principal in chronological order of their stated maturity beginning with
the stated maturity date closest in time to the date of prepayment, and
(iii) such prepayment is in an amount of at least $100,000 or if less the
entire aggregate remaining balance of principal and accrued and unpaid
interest outstanding on the Term Loan A, Term Loan B, Term Loan C, or Term
Loan D as applicable.”
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(v)
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“3.02. All
Advances. Notwithstanding any provision contained in
this Agreement to the contrary, the obligation of Lender to make a
Revolving Loan, the Term Loan D and/or a Liquidity Revolving Loan under
this Agreement shall be subject to the satisfaction of following
conditions precedent.”
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(vi)
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“3.02(b) all
of the representations and warranties of Borrower contained in this
Agreement and of Borrower, each Subsidiary Holding Company and each
Subsidiary Bank, as applicable, in the other Transaction Documents shall
be true and correct on and as of the date of the making of such advance as
if made on and as of the date of the making of the Revolving Loan, the
Term Loan D or the Liquidity Revolving Loan, as
applicable.”
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(vii)
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“3.02(g). if
the loan is to be a Revolving Loan, Lender shall have received a notice of
borrowing as required by Section 2.01(b) and Lender shall have approved
such Revolving Loan in its sole and absolute discretion; and if the loan
is to be a Liquidity Revolving Loan, Lender shall have received a notice
of borrowing as required by Section
2.08(b).”
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(viii)
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Closing
language to 3.02. “Each request for a Loan by Borrower under
this Agreement shall be deemed to be a representation and warranty by
Borrower on the date of the making of such advance as to the facts
specified in clauses (a), (b), (c), (d), (e), (f) and (h) of this Section
3.02.”
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(ix)
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“5.03(f)
On or before the thirtieth day of each calendar month following the end of
each calendar quarter, and with respect to the immediately preceding
calendar quarter, a written report of Borrower's compliance with each
requirement set forth in the MOU, the Royal Palm Bancorp MOU and the
Mid-America MOU in a form and substance satisfactory to Lender in its
reasonable discretion.”
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(x)
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“5.03(g) On
or before the thirtieth day of each calendar month following the end of
each calendar quarter, and with respect to the immediately preceding
calendar quarter, a written report of Borrower’s compliance with each
requirement set forth in the Heartland Order and the Royal Palm Order in a
form and substance satisfactory to Lender in its reasonable
discretion.”
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(xi)
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“5.03(h) Within
24 hours of its occurrence, a written notice of any modification of, or
amendment to, or of failure to comply with, the MOU, the Royal Palm Bancorp
MOU, the Mid-America MOU, the Royal Palm Order, or the Heartland Order in
a form and substance satisfactory to Lender in its reasonable
discretion.”
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(xii)
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“5.13
Consolidated
Fixed Charge Coverage Ratio. Maintain a Consolidated Fixed Charge
Coverage Ratio of at least negative (.75) to 1.00 for each four
consecutive fiscal quarter period ending on or after March 31,
2010.”
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(xiii)
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“5.14(i) Regulatory and Other
Matters. (a) The issuance of
any cease and desist order against Borrower, any Subsidiary Holding
Company or any Subsidiary Bank and/or the entry of any memorandum of
understanding or other agreement between Borrower, any Subsidiary Holding
Company or any Subsidiary Bank and any Regulatory Agency and any amendment
or modification of the foregoing, regardless of whether the same is
voluntary or involuntary; (b) the receipt of any written communication
from any Regulatory Agency or the receipt of any request from any
Regulatory Agency for a meeting with the executive officers or board of
directors of Borrower, any Subsidiary Holding Company or any Subsidiary
Bank, or (c) any material modification of the terms of any agreement
related to the sale of Xxxxx County State Bank, an Illinois banking
corporation (“Xxxxx County”),
or Marine Bank & Trust, an Illinois banking corporation (“Marine”),
including any modification that is likely to result in the purchase price
or the proceeds from such sale to be reduced or any termination of any
agreement relating the sale of such banks, within 24 hours after learning
of the occurrence thereof.”
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(xiv)
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“6.12 Non-Performing
Assets. Permit the aggregate amount of Non-Performing
Assets of all Subsidiary Banks on a combined basis to equal or exceed
eighty-five percent (85%) of the then Primary Capital of all Subsidiary
Banks, as determined according to GAAP, at any time from and after the
date hereof.
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(xv)
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“7.12 (i) Any
Subsidiary Bank shall cease to be an “insured bank” under or within the
meaning of the Federal Deposit Insurance Act of 1959, as amended; (ii) a
cease and desist order, memorandum of understanding or other agreement
shall be issued by any Regulatory Agency against or affecting any
Subsidiary Holding Company, any Subsidiary Bank (other than Heartland Bank
and Royal Palm Bank) or any other Obligor (except Borrower, Royal Palm
Bancorp, Inc. and Mid-America Bancorp, Inc.) which (in Lender’s reasonable
opinion) has or could have a Material Adverse Effect on the business,
operation or condition, financial or otherwise, of Borrower, any
Subsidiary Holding Company, any Subsidiary Bank
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or
any other Obligor; (iii) the Memorandum of Understanding issued by the
Federal Reserve Bank of St. Louis on March 17, 2009 with respect to
Borrower is modified or amended in any manner (the “MOU”) that
makes the same more burdensome upon, more restrictive of, or imposes new
conditions, limitations or requirements on Borrower that are materially
adverse to Borrower as determined in the sole discretion of Lender; (iv)
the cease and desist order issued by the Florida Office of Financial
Regulation and the Federal Deposit Insurance Corporation (the “FDIC”) on May
7, 2009, with respect to Royal Palm Bank (the “Royal Palm
Order”) is modified or amended in any manner that makes the same
more burdensome upon, more restrictive of, or imposes new conditions,
limitations or requirements on Royal Palm Bank that are materially adverse
to Royal Palm Bank as determined in the sole discretion of Lender; (v) the
cease and desist order issued by the State Bank Commissioner of the State
of Kansas and the FDIC on March 9, 2009 with respect to Heartland Bank
(the “Heartland
Order”) is modified or amended in any manner that makes the same
more burdensome upon, more restrictive of, or imposes new conditions,
limitations or requirements on Heartland Bank that are materially adverse
to Heartland Bank as determined in the sole discretion of Lender; (vi) the
Memorandum of Understanding to be entered into with the Federal Reserve
Bank of St. Louis with respect to Royal Palm, a copy of which is attached
as Appendix 1 to this Agreement (the "Royal Palm Bancorp
MOU"), is modified or amended in any manner that makes the same
more burdensome upon, more restrictive of, or imposes new conditions,
limitations or requirements on Royal Palm that are materially adverse to
Royal Palm as determined in the sole discretion of Lender; (vii) the
Memorandum of Understanding to be entered into with the Federal Reserve
Bank of St. Louis with respect to Mid-America Bancorp, a copy of which is
attached as Appendix 2 to this Agreement (the "Mid-America
MOU"), is modified or amended in any manner that makes the same
more burdensome upon, more restrictive of, or imposes new conditions,
limitations or requirements on Mid-America Bancorp that are materially
adverse to Mid-America Bancorp as determined in the sole discretion of
Lender, or (viii) Borrower, any Subsidiary Holding Company or any
Subsidiary Bank fails to comply with the terms of the MOU, the Royal Palm
Order, the Heartland Order, the Royal Palm Bancorp MOU or the Mid-America
MOU or any amendment or waiver thereof in any respect as determined in the
sole discretion of Lender.”
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3. Further
Amendments. The Amended Loan Agreement shall be amended by
adding the following language as Section 2.03(d), 2.07, 2.08 and 3.02(h), ,
respectively:
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(i)
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“2.03(d). The
Liquidity Revolving Loans shall be evidenced by a revolving credit note of
Borrower in substantially the form of Exhibit I
attached hereto and incorporated herein by reference (as the same may from
time to time be amended, modified, extended, renewed or restated, the
“Liquidity
Revolving Note”). Borrower shall execute and deliver to
Lender a Liquidity Revolving Note in a
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principal
amount equal to the maximum amount of Lender’s Revolving Credit
Commitment.”
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(ii)
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“2.07. Term Loan D
Commitment. Subject to the terms and conditions set
forth in this Agreement and so long as no Default or Event of Default has
occurred and is continuing, within one (1) business day of receiving a
written request from Borrower, Lender agrees to make to Borrower a term
loan of Eleven Million Dollars ($11,000,000.00) (the “Term Loan D”)
so long as (1) Lender and/or its affiliates have received a waiver from
the FDIC of any cross guarantee liability that
the Lender or any of its affiliates may have as a result of the
acquisition of HNB National Bank, a national banking association (“Hannibal
Bank”), by an affiliate of Lender or a written confirmation from
the FDIC that the provisions of 12 U.S.C. Section 1815(e) and related
regulations are not applicable to the acquisition of Hannibal Bank by R.
Xxxx Xxxxxxxx or another affiliate of Lender, which waiver or notice is
reasonably satisfactory to Lender and its affiliates; (2) Lender receives
a promissory note executed by Borrower substantially in the form of Exhibit J
attached hereto evidencing the Term Loan D (“Term Note D”);
(3) Borrower covenants and agrees to use the proceeds from the Term Loan D
solely to contribute to the capital of Royal Palm and to cause Royal Palm
to contribute such amount to the capital of The Royal Palm Bank of
Florida, a Florida banking corporation; and (4) so long as Lender receives
the written request to make the Term Loan D on or prior to November 30,
2009. Subject to the terms and conditions set forth in this Agreement, the
Term Loan D shall be advanced in one disbursement by Lender. The Term Loan
D will not be revolving in nature and any principal repaid on the Term
Loan may not be reborrowed. The principal amount of the Term Loan D shall
be due and payable on the earlier of January 31, 2010 and the Closing
Date.”
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(iii) “2.08. Liquidity Revolving Credit
Commitment.
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(a)
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Subject
to the terms and conditions set forth in this Agreement and so long as (i)
no Default or Event of Default has occurred and is continuing, (ii) the
Closing Date has occurred; and (iii) the proceeds from the sale of Marine
and Xxxxx County to United Community Bancorp, Inc., a Delaware
corporation, are used to repay the remaining outstanding principal and
interest under the Notes (assuming the sale of HNB National Bank, a
national banking association, to R. Xxxx Xxxxxxxx has previously been
consummated, but if the such sale has not been consummated an amount
necessary to bring all outstanding principal and interest under the Notes
to $28 million shall be paid by Borrower to Lender), during the Liquidity
Revolving Credit Period, Lender agrees to make loans to Borrower (individually, a
“Liquidity
Revolving Loan”; and collectively, the “Liquidity Revolving
Loans”) as Borrower may from time to time request pursuant to
Section 2.08(b). Each Liquidity Revolving Loan under this
Section 2.08(a) shall be for an aggregate principal amount of at least
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$500,000
or any larger principal amount in multiples of $25,000. The
aggregate principal amount of Liquidity Revolving Loans which Lender may
have outstanding under this Agreement as of any date shall not exceed the
amount of Lender’s Liquidity Revolving Credit Commitment as of such
date. In no event shall the aggregate principal amount of all
Liquidity Revolving Loans outstanding as of any date exceed the amount of
Lender’s Liquidity Revolving Credit Commitment as of such
date. Within the foregoing limits, Borrower may borrow under
this Section 2.08(a), prepay under Section 2.04(f) and reborrow at any
time during the Liquidity Revolving Credit Period under this Section
2.08(a), subject to the limitations and procedures contained in this
Section 2.08. All Liquidity Revolving Loans not paid
prior to the last day of the Liquidity Revolving Credit Period, together
with all accrued and unpaid interest thereon and all fees and other
amounts owing by Borrower to Lender with respect thereto, shall be due and
payable on the last day of the Liquidity Revolving Credit
Period.
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(b)
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Borrower
shall give written notice to Lender by 10:00 a.m. (Quincy, Illinois time)
at least three (3) Business Days prior to desired date of each advance of
a Liquidity Revolving Loan specifying (a) the date of such advance, which
must be a Business Day, and (b) the aggregate principal amount of such
advance. If the terms of this Agreement, including the
conditions set forth in Section 3.02, are satisfied, Lender shall deliver
the proceeds of the advance to an account identified to Lender by Borrower
and Borrower shall execute such documents and instruments as reasonably
requested by Lender. Borrower hereby irrevocably authorizes Lender to rely
on telegraphic, telecopy, telex or written instructions of any individual
identifying himself or herself as one of the individuals listed on Schedule
2.01(b) attached hereto (or any other individual from time to time
authorized to act on behalf of Borrower pursuant to a resolution adopted
by the Board of Directors of Borrower and certified by the Secretary of
Borrower and delivered to Lender) with respect to any request to make an
advance or a repayment hereunder, and on any signature which Lender
believes to be genuine, and Borrower shall be bound thereby in the same
manner as if such individual were actually authorized or such signature
were genuine. Borrower also hereby agrees to indemnify Lender
and hold Lender harmless from and against any and all claims, demands,
damages, liabilities, losses, costs and expenses (including, without
limitation, reasonable attorneys’ fees and expenses) relating to or
arising out of or in connection with its decision to lend or not to lend
funds pursuant to the terms of this Agreement or the acceptance of
instructions for making advances or repayments
hereunder.
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(c)
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If
the amount of Lender’s Liquidity Revolving Credit Commitment on any date
is less than the aggregate principal amount of all Liquidity
Revolving
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Loans
outstanding as of such date, Borrower shall be automatically required
(without demand or notice of any kind by Lender, all of which are hereby
expressly waived by Borrower) to immediately repay the Liquidity Revolving
Loans (including any accrued interest on any principal repaid) in an
amount sufficient to reduce the amount of the aggregate principal amount
of all Liquidity Revolving Loans outstanding as of such date to an amount
equal to or less than the amount of Lender’s Liquidity Revolving Credit
Commitment.
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(d)
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Borrower
shall pay Lender a fee on each February 10, May 10, August 10 and November
10 and on the last day of the Liquidity Revolving Credit Period, in an
amount equal to the product of (i) 50 basis points (0.50%) per annum
multiplied by (ii) the difference between the Liquidity Revolving Credit
Commitment and the average outstanding principal amount of Revolving
Credit Loans during the three-month period ending on the last day of the
calendar month immediately preceding the payment
date.”
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(iv)
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“3.02
(h) after giving effect to the making of the Liquidity
Revolving Loan, the aggregate principal amount of all Liquidity Revolving
Loans shall not exceed the Liquidity Revolving Credit
Commitment.”
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4. Definitions.
(i) Section
1 of the Agreement shall be modified by deleting the definitions of the terms
“Loan,” "Material Adverse Effect," “Non-Performing Assets,” “Note”, “Term Loan,”
“Term Note,” and “Revolving Credit Period” and replacing each with the
following, as applicable:
“Loan shall mean each
Revolving Loan, each Liquidity Revolving Loan and each Term Loan; and Loans shall mean any
or all of the foregoing.”
"Material Adverse
Effect shall mean (a) a material adverse effect on the Properties,
assets, liabilities, business, operations, prospects, income or condition
(financial or otherwise) of Borrower, any Subsidiary Bank, any Subsidiary
Holding Company and/or any Consolidated Subsidiary, (b) material impairment of
the ability of Borrower, any Subsidiary Holding Company and/or any Subsidiary
Bank to perform any of its obligations under this Agreement, the Notes, or any
of the other Transaction Documents or (c) material impairment of the
enforceability of the rights of, or benefits available to, Lender under this
Agreement, the Notes, or any of the other Transaction Documents; provided, that
the sale of Xxxxx County and Marine to United Community Bancorp, Inc. pursuant
to that certain Stock Purchase Agreement to be entered into between United
Community Bancorp, Inc. and Borrower and the exchange of Hannibal Bank pursuant
to that Exchange Agreement of even date hereof, among the Borrower,
HNB Financial Services, Inc. and R. Xxxx Xxxxxxxx shall not
constitute a Material Adverse Effect.
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“Non-Performing Assets
shall mean, with respect to any Person, assets
which: (a) constitute or are classified as other real estate
owned (as such term is defined in the guidelines, rules and regulations of The
Board of Governors of the Federal Reserve Board pertaining to capital adequacy
in effect from time to time), (b) in the case of a particular asset, is (at the
time of such calculation) classified as a loan or other extension of credit (1)
which has been placed on nonaccrual status (regardless of whether such
classification is internal or as reported to or directed by any Regulatory
Agency) or has been required to be so placed by any Regulatory Agency, (2) the
obligee of which has reduced the agreed interest rate, reduced the principal or
interest obligation, extended the maturity, applied interest payments to reduce
principal, capitalized interest or otherwise renegotiated the terms of
the obligations based upon the actual or asserted inability of the obligor or
obligors of such loans to perform their obligations pursuant to the agreements
with the obligee prior to such modification or renegotiation, or which has been
otherwise classified as renegotiated pursuant to guidelines now or hereafter
established by the Federal Financial Institutions Examination Council, or (3)
with respect to which any payment of any principal or interest is past due for a
period of ninety (90) days or more, or (c) all other “Non-Performing Assets,” as
reported in the then most recent reports filed with the applicable Regulatory
Agency for the relevant entity.”
“Note shall mean each
Revolving Note, each Term Note and each Liquidity Revolving Note; and Notes shall mean any
or all of the foregoing.”
“Term Loan shall mean
each of Term Loan A, Term Loan B, Term Loan C and Term Loan D; and Term Loans shall mean
any or all of the foregoing.”
“Term Note shall mean
each of Term Note A, Term Note B, Term Note C and Term Note D; and Term Notes shall mean
any or all of the foregoing.”
“Revolving Credit
Period shall mean the period commencing on the date of this Agreement and
ending on the earlier of (a) January 31, 2010 and (b) the Closing
Date.”
(ii) Section
1 of the Agreement shall be modified by deleting the defined term “Royal Palm
MOU” and not replacing it.
(iii) Section
1 of the Agreement shall be modified by adding the following definitions in
alphabetical order:
“Closing Date shall
mean the date upon which the transactions contemplated by that certain Stock
Purchase Agreement to be entered into between Borrower and United Community
Bancorp, Inc. are closed.”
"Xxxxx County shall
have the meaning ascribed thereto in Section 5.14(i)"
“Hannibal Bank shall
have the meaning ascribed thereto in Section 2.07.”
“Liquidity Revolving Credit
Commitment shall mean $7,000,000.”
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“Liquidity Revolving Credit
Period shall mean the period commencing on the date of this Agreement and
ending on December 31, 2010.”
“Liquidity Revolving
Loan and Liquidity Revolving
Loans shall have the meanings ascribed thereto in
Section 2.08(a).”
“Liquidity Revolving
Note shall have the meaning ascribed thereto in Section
2.03(d).”
"Marine shall have the
meaning ascribed thereto in Section 5.14(i)."
"Mid-America MOU shall
have the meaning ascribed thereto in Section 7.12."
"Royal Palm Bancorp
MOU shall have the meaning ascribed thereto in Section
7.12."
“Term Loan D shall
have the meaning ascribed thereto in Section 2.07.”
“Term Note D shall
have the meaning ascribed thereto in Section 2.07.”
5. Miscellaneous.
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(i)
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Except
as herein specifically agreed, the Transaction Documents, and the
obligations of Borrower thereunder, are hereby ratified and confirmed in
all respects and shall remain in full force and effect according to their
respective terms. Borrower agrees to strictly comply with the
terms of this Waiver and each Transaction Document. Each
Transaction Document shall continue to constitute a legal, valid and
binding obligation of Borrower enforceable against Borrower in accordance
with its respective terms except as such enforceability may be limited by
bankruptcy, insolvency or other similar laws affecting creditors’ rights
in general. Any breach of the terms of this Waiver shall
constitute and Event of Default under the Loan
Agreement.
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(ii)
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Borrower
hereby represents and warrants to Lender as
follows:
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(a)
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Borrower
has taken all necessary action to authorize the execution, delivery and
performance of this Waiver.
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(b)
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This
Waiver has been duly executed and delivered by the Borrower and
constitutes the Borrower’s legal, valid and binding obligation,
enforceable against Borrower in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency or other similar
laws affecting creditors’ rights in
general.
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(c)
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No
consent, approval, authorization or order of, or filing, registration or
qualification with, any court or governmental authority or third party is
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required
in connection with the execution, delivery or performance of this Waiver
by the Borrower other than any consent, approval, authorization, order,
filing, registration or qualification that has been obtained or requested
by Borrower.
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(d)
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The
execution, delivery and performance of this Waiver does not and will not:
(A) violate any provision of law applicable to Borrower, any Subsidiary
Holding Company or any Subsidiary Bank, the certificate of incorporation,
bylaws, or other applicable governing document of Borrower
any Subsidiary Holding Company or any Subsidiary Bank, or any order,
judgment, or decree of any court or agency of government binding upon
Borrower, any Subsidiary Holding Company or any Subsidiary Bank; (B)
conflict with, result in a breach of or constitute (with due notice or
lapse of time or both) a default under any material contractual obligation
of Borrower, any Subsidiary Holding Company or any Subsidiary Bank; or (C)
result in or require the creation or imposition of any lien upon any of
the assets of Borrower, any Subsidiary Holding Company or any Subsidiary
Bank,.
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(e)
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The
representations and warranties of the Borrower set forth in the
Transaction Documents are true and correct as of the date hereof with the
same effect as if made on and as of the date hereof, except to the extent
such representations and warranties expressly relate solely to an earlier
date, and, after giving effect to this Waiver, no Default or Event of
Default has occurred and is
continuing.
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(iii)
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IN
ADDITION, TO INDUCE LENDER TO AGREE TO THE TERMS OF THIS WAIVER, BORROWER
ON BEHALF OF ITSELF AND EACH OBLIGOR REPRESENTS AND WARRANTS THAT AS OF
THE DATE OF ITS EXECUTION OF THIS WAIVER, THERE ARE NO CLAIMS OR OFFSETS
AGAINST OR DEFENSE OR COUNTERCLAIMS TO ITS OBLIGATIONS UNDER THE
TRANSACTION DOCUMENTS AND IN ACCORDANCE THEREWITH
IT:
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(a)
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WAIVER. ON
BEHALF OF ITSELF AND EACH OBLIGOR, WAIVES ANY AND ALL SUCH CLAIMS,
OFFSETS, DEFENSES OR COUNTERCLAIMS WHETHER KNOWN OR UNKNOWN, ARISING PRIOR
TO THE DATE OF ITS EXECUTION OF THIS WAIVER;
AND
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(b)
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RELEASE. ON
BEHALF OF ITSELF AND EACH OBLIGOR, RELEASES AND DISCHARGES LENDER AND ITS
OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SHAREHOLDERS, AFFILIATES AND
ATTORNEYS (COLLECTIVELY, “RELEASED
PARTIES”) FROM ANY AND ALL OBLIGATIONS, INDEBTEDNESS, LIABILITIES,
CLAIMS, RIGHTS, CAUSES OF ACTION OR
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DEMANDS
WHATSOEVER, WHETHER KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, IN LAW OR
EQUITY, WHICH BORROWER OR ANY OBLIGOR EVER HAD, NOW HAS, CLAIMS TO HAVE OR
MAY HAVE AGAINST ANY RELEASED PARTY ARISING PRIOR TO THE DATE HEREOF AND
FROM OR IN CONNECTION WITH THE TRANSACTION DOCUMENTS OR THE TRANSACTIONS
CONTEMPLATED THEREBY.
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(iv)
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Borrower
acknowledges and agrees that as of the date hereof Lender has fully
performed all obligations that it may have under the Transaction
Documents.
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(v)
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This
Waiver may be executed in any number of counterparts, each of which when
so executed and delivered shall be an original, but all of which shall
constitute one and the same instrument. Delivery of an executed
counterpart of this Waiver by telecopy shall be effective as an original
and shall constitute a representation that an executed original shall be
delivered.
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(vi)
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THIS
WAIVER EMBODIES THE ENTIRE AGREEMENT AND UNDERSTANDING BETWEEN PARTIES
HERETO AND SUPERSEDES ALL PRIOR AGREEMENTS AND UNDERSTANDINGS (ORAL OR
WRITTEN) RELATING TO THE SUBJECT MATTER HEREOF. THIS WAIVER AND
THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
ILLINOIS.
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(vii)
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IMPORTANT: READ
BEFORE SIGNING. THE TERMS OF THIS WAIVER SHOULD BE READ
CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ARE
ENFORCEABLE. NO OTHER TERMS OR ORAL PROMISES NOT CONTAINED IN
THIS WRITTEN CONTRACT MAY BE LEGALLY ENFORCED. YOU MAY CHANGE
THE TERMS OF THIS WAIVER ONLY BY ANOTHER WRITTEN
AGREEMENT. THIS NOTIFICATION APPLIES TO ALL OTHER CREDIT
AGREEMENTS IN EFFECT BETWEEN THE PARTIES
HERETO.
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(viii)
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Borrower
agrees to pay on demand all out-of-pocket expenses incurred by Lender
(including fees and expenses of counsel) incurred in connection with the
negotiation and preparation of this
Waiver.
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Each of the parties hereto has caused a
counterpart of this Waiver to be duly executed and delivered as of the date
first above written.
[Remainder
of Page Intentionally Left Blank]
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Borrower:
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By:
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/s/ Xxx X. Xxxxxxxx | |
| Name: Xxx X. Xxxxxxxx | |||
| Title: President & Chief Executive Officer | |||
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Lender:
GREAT
RIVER BANCSHARES, INC.
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By:
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/s/ R. Xxxx Xxxxxxxx | |
| Name: R. Xxxx Xxxxxxxx | |||
| Title: Chairman of the Board | |||
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