THIRD AMENDMENT TO LOAN AGREEMENT
Exhibit
10.13
THIS THIRD AMENDMENT TO LOAN AGREEMENT (this “Amendment”) is made and entered into as
of the _20th___ day of July, 2006 by and between WESTERN RESERVE BANCORP, INC., an Ohio
corporation (the “Borrower”) and TCF NATIONAL BANK, a national banking association (the
“Bank”).
RECITALS:
A. The Borrower and the Bank are parties to a certain letter loan agreement dated as of
May 5, 2003, as amended by a certain First Amendment to Loan Agreement dated as of March 31, 2005,
and as further amended by a certain Second Amendment to Loan Agreement dated as of June 30, 2005
(as amended, the “Loan Agreement”). All capitalized terms not otherwise defined herein
shall have the meanings given to them in the Loan Agreement.
B. The Borrower has requested that the Bank modify the Loan Agreement to (i) extend the
Maturity Date of the existing $3,000,000 revolving line of credit from June 30, 2007 to June 30,
2008, (ii) extend the Maturity Date of the existing $1,000,000 revolving line of credit from June
30, 2007 to June 30, 2008, and (iii) modify certain covenants and other terms and conditions set
forth in the Loan Agreement.
C. The Bank has agreed to make said modifications upon the terms and subject to the conditions
herein set forth.
AGREEMENTS:
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth,
and for other good and valuable consideration, the nature, receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
Section 1. Conditions Precedent. The effectiveness of all of the amendments and
agreements set forth in this Amendment are subject to condition precedent that the Bank shall have
received all of the following items, each dated such date and in form and substance satisfactory to
the Bank, and each duly executed by all appropriate parties:
(a) This Amendment.
(b) An Amended and Restated Promissory Note in substantially the form of Exhibit
A hereto made payable by the Borrower to the order of the Bank in the original principal
amount of $3,000,000.
(c) An Amended and Restated Promissory Note in substantially the form of Exhibit
B hereto made payable by the Borrower to the order of the Bank in the original principal
amount of $1,000,000.
(d) A certificate of the secretary or an assistant secretary of the Borrower,
certifying: (i) the names of the officers of the Borrower authorized to sign this Amendment
and the other
documents delivered or to be delivered in connection herewith to which the Borrower is
a party or by which it is bound, (ii) that the Articles of Incorporation and Bylaws of the
Borrower have not
been amended, modified, supplemented or restated since the date such
documents were last certified to the Bank, and (iii) a copy of the resolutions of the Board
of Directors of the Borrower authorizing the execution, delivery and performance by the
Borrower of this Amendment and any other documents delivered or to be delivered in
connection herewith to which the Borrower is a party or by which it is bound, together with
all documents evidencing other necessary corporate action.
(e) Such other documents or instruments as the Bank may reasonably require.
Section 2. Amendments.
(a) The Loans. Section 1.1 of the Loan Agreement is hereby amended by
deleting the reference to “June 30, 2007” and replacing it with a reference to “June 30,
2008”.
(b) The Notes. Section 1.2 of the Loan Agreement is hereby amended by
deleting each reference to “Second Amendment” and replacing it with a reference to “Third
Amendment”.
(c) Dividends and Distributions. Section 4.14 of the Loan Agreement is
hereby amended and restated in its entirety to read as follows:
4.14 Dividends and Distributions. Not purchase or redeem
or otherwise acquire for value any shares of the Borrower’s or any
Subsidiary’s stock, declare or pay any dividends thereon (other than stock
dividends and dividends payable solely to the Borrower), make any
distribution on, or payment on account of the purchase, redemption,
defeasance or other acquisition or retirement for value of, any shares of
the Borrower’s or any Subsidiary’s stock or set aside any funds for any such
purpose (other than payment to, or on account of or for the benefit of, the
Borrower only); provided, however, that so long as no Event of
Default has occurred or would result therefrom, the Borrower may from time
to time, subject to an aggregate limit of $100,000 over the life of the
Loans, purchase or redeem or otherwise acquire for value shares of the
Borrower’s stock; provided further, however, that so long as no
Event of Default has occurred or would result therefrom, the Borrower may
from time to time, subject to an aggregate limit of $100,000 over the life
of the Loans, declare or pay dividends.
(d) Total Capital Base. Section 4.15 of the Loan Agreement is
hereby amended by deleting the reference to “$9,000,000” and replacing it with a reference
to “$10,500,000.”
(e) Deposit Accounts. Section 4.18 of the Loan Agreement is hereby
amended by deleting the reference to “$700,000” and replacing it with a reference to
“$750,000”.
(f) Annual Cleanup. Section 4.19 of the Loan Agreement is hereby
amended by deleting the reference to “Commitment B” and replacing it with a reference to
“Commitment A”,
and by deleting each reference to “Second Amendment” and replacing it with a reference
to “Third Amendment”.
Section 3. Representations; No Default. The Borrower represents and warrants that:
(a) the Borrower has the power and legal right and authority to enter into this Amendment and has
duly authorized the execution and delivery of this Amendment and other agreements and documents
executed and delivered by the Borrower in connection herewith, (b) neither this Amendment nor the
agreements contained herein contravene or constitute an Event of Default, or an event which with
the
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giving of notice or passage of time or both would mature into an Event of Default (an
“Unmatured Event of Default”), under the Loan Agreement or a default under any other
agreement, instrument or indenture to which the Borrower is a party or a signatory, or any
provision of the Borrower’s Articles of Incorporation or Bylaws or, to the best of the Borrower’s
knowledge, any other agreement or requirement of law, or result in the imposition of any lien or
other encumbrance on any of its property under any agreement binding on or applicable to the
Borrower or any of its property except, if any, in favor of the Bank, (c) no consent, approval or
authorization of or registration or declaration with any party, including but not limited to any
governmental authority, is required in connection with the execution and delivery by the Borrower
of this Amendment or other agreements and documents executed and delivered by the Borrower in
connection herewith or the performance of obligations of the Borrower herein described, except for
those which the Borrower has obtained or provided and as to which the Borrower has delivered
certified copies of documents evidencing each such action to the Bank, (d) no events have taken
place and no circumstances exist at the date hereof which would give the Borrower grounds to assert
a defense, offset or counterclaim to the obligations of the Borrower under the Loan Agreement or
any of the other Loan Documents (defined below), and (e) there are no known claims, causes of
action, suits, debts, liens, obligations, liabilities, demands, losses, costs and expenses
(including attorneys’ fees) of any kind, character or nature whatsoever, fixed or contingent, which
the Borrower may have or claim to have against the Bank, which might arise out of or be connected
with any act of commission or omission of the Bank existing or occurring on or prior to the date of
this Amendment, including, without limitation, any claims, liabilities or obligations arising with
respect to the indebtedness evidenced by the Note.
Section 4. Reaffirmation of Pledge Agreement. The Borrower hereby reaffirms that the
unpaid balance of the Note and all of the other obligations of the Borrower under the Loan
Agreement are now and shall hereafter continue to be secured by, among other things, a first
priority, perfected security interest in the “Collateral” described in that certain Pledge
Agreement dated May 5, 2003 executed by the Borrower in favor of the Lender. All of the terms,
conditions, provisions, agreements, requirements, promises, obligations, duties, covenants and
representations of the Borrower under such Pledge Agreement and any and all other documents and
agreements entered into with respect to the obligations of the Borrower under the Loan Agreement
(collectively, the “Loan Documents”) are incorporated herein by reference and are hereby
ratified and affirmed in all respects by the Borrower.
Section 5. Affirmation, Further References. The Bank and the Borrower each acknowledge
and affirm that the Loan Agreement, as hereby amended, is hereby ratified and confirmed in all
respects and all terms, conditions and provisions of the Loan Agreement, except as amended by this
Amendment, shall remain unmodified and in full force and effect. All references in any document or
instrument to the Loan Agreement and the Loan Documents are hereby amended and shall refer to the
Loan Agreement and the Loan Documents, as amended by this Amendment.
Section 6. Merger and Integration, Superseding Effect. This Amendment, from and after
the date hereof, embodies the entire agreement and understanding between the parties hereto and
supersedes and has merged into it all prior oral and written agreements on the same subjects by and
between the parties hereto with the effect that this Amendment, shall control with respect to
the specific subjects hereof and thereof.
Section 7. Severability. Whenever possible, each provision of this Amendment and any
other statement, instrument or transaction contemplated hereby or thereby or relating hereto or
thereto shall be interpreted in such manner as to be effective, valid and enforceable under the
applicable law of any jurisdiction, but, if any provision of this Amendment or any other statement,
instrument or transaction contemplated hereby or thereby or relating hereto or thereto shall be
held to be prohibited, invalid or unenforceable under the applicable law, such provision shall be
ineffective in such jurisdiction only to the extent of such prohibition, invalidity or
unenforceability, without invalidating or rendering unenforceable
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the remainder of such provision
or the remaining provisions of this Amendment or any other statement, instrument or transaction
contemplated hereby or thereby or relating hereto or thereto in such jurisdiction, or affecting the
effectiveness, validity or enforceability of such provision in any other jurisdiction.
Section 8. Successors. This Amendment shall be binding upon the Borrower, the Bank
and their respective successors and assigns, and shall inure to the benefit of the Borrower, the
Bank and to the respective successors and assigns of the Bank.
Section 9. Costs and Expenses. The Borrower agrees to reimburse the Bank, upon
execution of this Amendment, for all reasonable out-of-pocket expenses (including attorneys’ fees
and legal expenses of counsel for the Bank) incurred in connection with the Loan Agreement,
including in connection with the negotiation, preparation and execution of this Amendment and all
other documents negotiated, prepared and executed in connection with this Amendment, and in
enforcing the obligations of the Borrower under this Amendment, and to pay and save the Bank
harmless from all liability for, any stamp or other taxes which may be payable with respect to the
execution or delivery of this Amendment.
Section 10. Headings. The headings of various sections of this Amendment have been
inserted for reference only and shall not be deemed to be a part of this Amendment.
Section 11. Counterparts. This Amendment may be executed in several counterparts as
deemed necessary or convenient, each of which, when so executed, shall be deemed an original,
provided that all such counterparts shall be regarded as one and the same document, and any party
to this Amendment may execute any such agreement by executing a counterpart of such agreement.
Section 12. Governing Law. This Amendment shall be governed by the internal laws of
the State of Minnesota, without giving effect to conflict of law principles thereof.
Section 13. No Waiver. Nothing contained in this Amendment (or in any other agreement
or understanding between the parties) shall constitute a waiver of, or shall otherwise diminish or
impair, the Bank’s rights or remedies under the Loan Agreement or any of the other Loan Documents,
or under applicable law.
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signature page follows]
signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Third Amendment to Loan Agreement to
be executed as of the day and year first above written.
BORROWER:
|
WESTERN RESERVE BANCORP, INC., | |
| an Ohio corporation | ||
| By: /s/ Xxxxxx X. XxXxxx | ||
| Printed Name: Xxxxxx X. XxXxxx | ||
| Its: President | ||
| By: /s/ Xxxxxxx X. Xxxx | ||
| Printed Name: Xxxxxxx X. Xxxx | ||
| Its: Senior Vice President | ||
BANK:
|
TCF NATIONAL BANK, | |
| a national banking association | ||
| By: /s/ Xxx X. Xxx | ||
| Printed Name: Xxx X. Xxx | ||
| Its: Senior Vice President | ||
| By: /s/ Xxxxxxx Xxx | ||
| Printed Name: Xxxxxxx Xxx | ||
| Its: Commercial Loan Officer |
EXHIBIT A
AMENDED AND RESTATED
PROMISSORY NOTE
PROMISSORY NOTE
| $3,000,000 | July 20, 2006 |
FOR VALUE RECEIVED, WESTERN RESERVE BANCORP, INC., an Ohio corporation (the
“Borrower”), promises to pay to the order of TCF NATIONAL BANK (the “Bank”), at its
main office in Minneapolis, Minnesota, the principal amount of all Loans made by the Bank to the
Borrower pursuant to Commitment A under the terms of the Loan Agreement (as hereinafter defined)
and under this Note (each, a “Loan” or collectively the “Loans”). The aggregate
principal amount of all Loans outstanding hereunder shall at no time exceed THREE MILLION DOLLARS
($3,000,000). The Loans shall be payable not later than the Due Date, as defined in the Loan
Agreement.
The unpaid principal amount of the Loans shall bear interest at the following rates per
year, determined as provided hereinafter (each computed on the basis of the actual number of days
elapsed and a year consisting of 360 days) and payable as follows:
(a) Subject to subsection (b) below, at the Base Rate in effect from time to time per
annum less 0.75% per annum, payable on the last day of each month of each year; and
(b) Following the occurrence of an “Event of Default” (as defined in the Loan
Agreement), at the rate per annum otherwise applicable to the Loans plus 4.00%, payable on
demand (the “Default Rate”).
For purposes of this Note, in addition to terms defined elsewhere and in the Loan Agreement
(as defined below), the term “Base Rate” means the rate of interest established by the Bank
in its sole discretion from time to time as its “prime rate” or “base rate”. The Bank may lend to
its customers at rates that are equal to, greater than, or less than the Base Rate.
All payments of principal and interest shall be made in immediately available funds in lawful
money of the United States of America.
The Borrower hereby authorizes the Bank to rely upon the telephone or written instructions of
any person identifying himself or herself as an authorized officer of the Borrower and upon any
signature which the Bank believes to be genuine, and the Borrower shall be bound thereby in the
same manner as if such person were authorized and such signature were genuine.
This Note is the Note referred to in, and evidences indebtedness incurred under, the letter
loan agreement dated as of May 5, 2003, as amended by a certain First Amendment to Loan Agreement
dated as of March 31, 2005, as further amended by a certain Second Amendment to Loan Agreement
dated as of June 30, 2005, and as further amended by a certain Third Amendment to Loan Agreement
dated as of July 20, 2006 (as amended and as it may be further amended, extended, renewed or
replaced, the “Loan Agreement”) between the Borrower and the Bank, to which reference is
made for a statement of the terms and provisions thereof, including those under which the Borrower
is permitted and required to make prepayments and repayments of principal of such indebtedness and
under which such indebtedness may be declared to be immediately due and payable. Certain
capitalized terms used herein shall be defined as in the Loan Agreement.
In the event that the interest or principal under this Note shall not be paid when due (upon
declaration of an Event of Default or otherwise): (a) the Borrower shall pay all costs of
collection of every kind, including but not limited to all reasonable attorneys’ fees, court costs,
and expenses incurred by the Bank in connection with collection or the protection or enforcement of
any rights hereunder whether or not any lawsuit is ever filed, and (b) the Bank or any other holder
of this Note shall have the right to set off the indebtedness evidenced by this Note against any
indebtedness of the Bank or such holder or any deposit of the Borrower with the Bank or such
holder.
The Borrower hereby waives presentment, demand, notice of dishonor, protest, and all other
demands and notices in connection with this Note. No act of omission or commission of the Bank,
including specifically any failure to exercise any right or remedy, shall be deemed to be a waiver
or release of the same, such waiver or release to be made only in writing signed by the Bank.
THE VALIDITY, CONSTRUCTION AND ENFORCEABILITY OF THIS NOTE SHALL BE GOVERNED BY THE INTERNAL
LAWS OF THE STATE OF MINNESOTA, WITHOUT GIVING EFFECT TO CONFLICT OF LAWS PRINCIPLES THEREOF, BUT
GIVING EFFECT TO FEDERAL LAWS OF THE UNITED STATES APPLICABLE TO NATIONAL BANKS.
THE BORROWER AND THE BANK (BY ACCEPTANCE HEREOF) EACH HEREBY EXPRESSLY WAIVES ANY RIGHT TO A
TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS NOTE OR UNDER
ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED
IN CONNECTION HEREWITH AND AGREE THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT
AND NOT BEFORE A JURY.
AT THE OPTION OF THE BANK, THIS NOTE MAY BE ENFORCED IN ANY FEDERAL COURT OR MINNESOTA STATE
COURT SITTING IN MINNEAPOLIS OR ST. XXXX, MINNESOTA; AND THE BORROWER CONSENTS TO THE JURISDICTION
AND VENUE OF ANY SUCH COURT AND WAIVES ANY ARGUMENT THAT VENUE IN SUCH FORUMS IS NOT CONVENIENT.
IN THE EVENT THE BORROWER COMMENCES ANY ACTION IN ANOTHER JURISDICTION OR VENUE UNDER ANY TORT OR
CONTRACT THEORY ARISING DIRECTLY OR INDIRECTLY FROM THE RELATIONSHIP CREATED BY THIS NOTE THE BANK,
AT ITS OPTION, SHALL BE ENTITLED TO HAVE THE CASE TRANSFERRED TO ONE OF THE JURISDICTIONS AND
VENUES ABOVE DESCRIBED, OR IF SUCH TRANSFER CANNOT BE ACCOMPLISHED UNDER APPLICABLE LAW, TO HAVE
SUCH CASE DISMISSED WITHOUT PREJUDICE.
This Note supersedes and replaces, but does not evidence repayment of or constitute a novation
with respect to, that certain Amended and Restated Promissory Note dated as of June 30, 2005 made
payable by the Borrower to the order of the Bank in the original principal amount of up to
$3,000,000.
| WESTERN RESERVE BANCORP, INC. | ||
| By: /s/ Xxxxxx X. XxXxxx | ||
| Title: President | ||
| and | ||
| By: /s/ Xxxxxxx X. Xxxx | ||
| Title: Senior Vice President |
EXHIBIT B
AMENDED AND RESTATED
PROMISSORY NOTE
PROMISSORY NOTE
| $1,000,000 | July 20, 2006 |
FOR VALUE RECEIVED, WESTERN RESERVE BANCORP, INC., an Ohio corporation (the
“Borrower”), promises to pay to the order of TCF NATIONAL BANK (the “Bank”), at its
main office in Minneapolis, Minnesota, the principal amount of all Loans made by the Bank to the
Borrower pursuant to Commitment B under the terms of the Loan Agreement (as hereinafter defined)
and under this Note (each, a “Loan” or collectively the “Loans”). The aggregate
principal amount of all Loans outstanding hereunder shall at no time exceed ONE MILLION DOLLARS
($1,000,000). The Loans shall be payable not later than the Due Date, as defined in the Loan
Agreement.
The unpaid principal amount of the Loans shall bear interest at the following rates per
year, determined as provided hereinafter (each computed on the basis of the actual number of days
elapsed and a year consisting of 360 days) and payable as follows:
(a) Subject to subsection (b) below, at the Base Rate in effect from time to time per
annum less 0.75% per annum, payable on the last day of each month of each year; and
(b) Following the occurrence of an “Event of Default” (as defined in the Loan
Agreement), at the rate per annum otherwise applicable to the Loans plus 4.00%, payable on
demand (the “Default Rate”).
For purposes of this Note, in addition to terms defined elsewhere and in the Loan Agreement
(as defined below), the term “Base Rate” means the rate of interest established by the Bank
in its sole discretion from time to time as its “prime rate” or “base rate”. The Bank may lend to
its customers at rates that are equal to, greater than, or less than the Base Rate.
All payments of principal and interest shall be made in immediately available funds in lawful
money of the United States of America.
The Borrower hereby authorizes the Bank to rely upon the telephone or written instructions of
any person identifying himself or herself as an authorized officer of the Borrower and upon any
signature which the Bank believes to be genuine, and the Borrower shall be bound thereby in the
same manner as if such person were authorized and such signature were genuine.
This Note is the Note referred to in, and evidences indebtedness incurred under, the letter
loan agreement dated as of May 5, 2003, as amended by a certain First Amendment to Loan Agreement
dated as of March 31, 2005, as further amended by a certain Second Amendment to Loan Agreement
dated as of June 30, 2005, and as further amended by a certain Third Amendment to Loan Agreement
dated as of July 20, 2006 (as amended and as it may be further amended, extended, renewed or
replaced, the “Loan Agreement”) between the Borrower and the Bank, to which reference is
made for a statement of the terms and provisions thereof, including those under which the Borrower
is permitted and required to make prepayments and repayments of principal of such indebtedness and
under which such indebtedness may be declared to be immediately due and payable. Certain
capitalized terms used herein shall be defined as in the Loan Agreement.
In the event that the interest or principal under this Note shall not be paid when due (upon
declaration of an Event of Default or otherwise): (a) the Borrower shall pay all costs of
collection of every kind, including but not limited to all reasonable attorneys’ fees, court costs,
and expenses incurred by the Bank in connection with collection or the protection or enforcement of
any rights hereunder whether or not any lawsuit is ever filed, and (b) the Bank or any other holder
of this Note shall have the right to set off the indebtedness evidenced by this Note against any
indebtedness of the Bank or such holder or any deposit of the Borrower with the Bank or such
holder.
The Borrower hereby waives presentment, demand, notice of dishonor, protest, and all other
demands and notices in connection with this Note. No act of omission or commission of the Bank,
including specifically any failure to exercise any right or remedy, shall be deemed to be a waiver
or release of the same, such waiver or release to be made only in writing signed by the Bank.
THE VALIDITY, CONSTRUCTION AND ENFORCEABILITY OF THIS NOTE SHALL BE GOVERNED BY THE INTERNAL
LAWS OF THE STATE OF MINNESOTA, WITHOUT GIVING EFFECT TO CONFLICT OF LAWS PRINCIPLES THEREOF, BUT
GIVING EFFECT TO FEDERAL LAWS OF THE UNITED STATES APPLICABLE TO NATIONAL BANKS.
THE BORROWER AND THE BANK (BY ACCEPTANCE HEREOF) EACH HEREBY EXPRESSLY WAIVES ANY RIGHT TO A
TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS NOTE OR UNDER
ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED
IN CONNECTION HEREWITH AND AGREE THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT
AND NOT BEFORE A JURY.
AT THE OPTION OF THE BANK, THIS NOTE MAY BE ENFORCED IN ANY FEDERAL COURT OR MINNESOTA STATE
COURT SITTING IN MINNEAPOLIS OR ST. XXXX, MINNESOTA; AND THE BORROWER CONSENTS TO THE JURISDICTION
AND VENUE OF ANY SUCH COURT AND WAIVES ANY ARGUMENT THAT VENUE IN SUCH FORUMS IS NOT CONVENIENT.
IN THE EVENT THE BORROWER COMMENCES ANY ACTION IN ANOTHER JURISDICTION OR VENUE UNDER ANY TORT OR
CONTRACT THEORY ARISING DIRECTLY OR INDIRECTLY FROM THE RELATIONSHIP CREATED BY THIS NOTE THE BANK,
AT ITS OPTION, SHALL BE ENTITLED TO HAVE THE CASE TRANSFERRED TO ONE OF THE JURISDICTIONS AND
VENUES ABOVE DESCRIBED, OR IF SUCH TRANSFER CANNOT BE ACCOMPLISHED UNDER APPLICABLE LAW, TO HAVE
SUCH CASE DISMISSED WITHOUT PREJUDICE.
This Note supersedes and replaces, but does not evidence repayment of or constitute a novation
with respect to, that certain Promissory Note dated as of June 30, 2005 made payable by the
Borrower to the order of the Bank in the original principal amount of up to $1,000,000.
| WESTERN RESERVE BANCORP, INC. | ||
| By: /s/ Xxxxxx X. XxXxxx | ||
| Title: President | ||
| and | ||
| By: /s/ Xxxxxxx X. Xxxx | ||
| Title: Senior Vice President |
