March 31, 2008
Exhibit 10.9
March 31,
2008
Xx. Xxxxx
X. Xxxxxxxx
President
and CEO
MainStreet
Financial Corporation
000 X.
Xxxxx Xxxxxx
Hastings,
Michigan 49058
|
|
Re:
|
Loan Facility from
Independent Bank (successor to Independent Bank South Michigan) (the
"Bank")
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Dear
Xx. Xxxxxxxx:
This
letter (the "Letter Agreement") pertains to the credit facility outstanding
from the Bank to MainStreet Financial Corporation (the "Borrower") pursuant
to a certain Business Loan Agreement, Promissory Note, Pledge Agreement and
Irrevocable Proxy, and other related documents and agreements dated
June 30, 2005 by and between the parties, as the same may be amended,
modified, supplemented, restated, or replaced from time to time (collectively,
the "Loan Documents"), which facility involves a line of credit in the original
principal amount of $2,000,000 (the "Loan").
Conditional
Waiver of Failure to Meet Certain Covenants
The Bank
and the Borrower acknowledge the Loan Documents require the Borrower to achieve
a consolidated return on assets (ROA) of greater than 0.00%, measured
quarterly in accordance with generally accepted accounting principles and
regulatory requirements. The Borrower has advised the Bank that the
Borrower failed to achieve a consolidated ROA greater than 0.00% during any
quarter of 2007 and is not likely to achieve such required ROA for any quarter
in 2008.
In
addition, the Bank and the Borrower acknowledge the Loan Documents require the
Borrower to maintain consolidated non-accrual loans and ORE of less than 20% of
Tier 1 capital and less than 1.5% of total loans, in each case measured
quarterly in accordance with generally accepted accounting principles and
regulatory requirements. The Borrower has advised the Bank that the
Borrower failed to meet these covenants for one or more quarters in 2007 and may
not achieve these covenants for one or more quarters in 2008. The
defaults described in this paragraph and in the preceding paragraph are
collectively referred to as the "Defaults."
The
foregoing enumeration of Defaults is without prejudice to the rights of the Bank
to identify further defaults and events of default, whether now existing or
hereafter arising, as and when said defaults become known to the
Bank.
As a
result of the Defaults, the Loan is due and payable in full and the Bank is
entitled to exercise the remedies available to it under the Loan Documents and
applicable law.
The Bank
hereby agrees to refrain and forbear from taking any action to enforce its
remedies with respect to the Defaults upon the following
conditions:
(a) The
Borrower must remain, in all respects and at all times, in full compliance with
this Letter Agreement;
(b) Except
for the Defaults, the Borrower must remain, in all respects and at all times, in
full compliance with each of the Loan Documents, including (without
limitation) the obligation to make all periodic payments on the Loan as and
when due; and
(c) The
MainStreet Financial Corporation Employee Stock Ownership Trust (the
"ESOT") must remain, in all respects and at all times, in full compliance
with each of the Loan and Pledge Agreement, Promissory Note, and other related
documents and agreements dated December 22, 2006, by and between the Bank
and the ESOT, as the same may be amended, modified, supplemented, restated, or
replaced from time to time (collectively, the "ESOT Loan Documents"), except to
the extent specifically waived in that certain letter agreement between the ESOT
and the Bank dated on or about the same date as this Letter
Agreement.
If any of the above conditions are not
met at any time and for any reason, this Letter Agreement and the Bank's
forbearance hereunder shall automatically terminate, without notice to Borrower
and without prejudice to any rights of the Bank. Without limiting the
generality of the foregoing, in such event, the Bank shall be entitled to claim
and collect damages from the Borrower with respect to all periods in which any
default or event of default existed pursuant to any of the Loan Documents,
including at all times from and after the date of this Letter Agreement and
including with respect to the Defaults.
Notwithstanding the foregoing or
anything to the contrary in this Letter Agreement, this Letter Agreement and the
Bank's forbearance hereunder shall expire automatically and without notice upon
the earlier of:
(i) December 31, 2008; (ii) the occurrence of any default or
event of default under any of the Loan Documents, other than the Defaults listed
above; or (iii) the occurrence of any default or event of default under any
of the ESOT Loan Documents, including (without limitation) any default by
the Borrower under its Guaranty of the Bank's loan to the ESOT, except to the
extent specifically waived in that certain letter agreement between the ESOT and
the Bank dated on or about the same date as this Letter
Agreement. Notwithstanding anything herein to the contrary, nothing
in this Agreement shall be construed so as to imply any commitment by the Bank
to forbear in any respect regarding any of the Loan Documents at any time on or
after December 31, 2008.
The Bank's agreement to forbear
hereunder shall be effective only upon the acceptance and execution of this
Letter Agreement on the part of the Borrower, which must occur by 5:00 p.m.
(EDT) on March 31st, 2008, or this Letter Agreement will be null and void
and of no force or effect. The Borrower's execution of this Letter
Agreement shall constitute the Borrower's acknowledgement of the Defaults and
the Bank's rights and remedies resulting therefrom, and shall further constitute
the Borrower's acceptance of and agreement to all of the terms and provisions of
this Letter Agreement.
In consideration of the Bank's
agreements set forth in this Letter Agreement, the Borrower
hereby: (a) releases, quits and forever discharges the Bank and
its affiliates, officers, directors, agents (including, without limitation, its
legal representatives), successors and assigns (collectively, the "Bank
Affiliates") of and from any and all actions, causes of action, claims,
demands, damages and liabilities of whatever kind and nature, known and unknown,
which the Borrower now has, claims or asserts, or might or could hereafter have,
claim or assert, against the Bank or any of the Bank Affiliates, arising or
alleged to arise from any act, omission or neglect of the Bank or any Bank
Affiliate up to and including the date of this Letter Agreement, with respect to
the Loan, the Loan Documents, or any transaction related thereto; and
(b) waives any and all defenses, setoffs, or counterclaims, of whatever
kind and nature, known and unknown, under or with respect to the Loan, the Loan
Documents, or any transaction related thereto and based upon any act, omission,
or neglect of the Bank or any Bank affiliate up to and including the date of
this Letter Agreement. The Borrower acknowledges that this paragraph,
together with all other provisions of this Letter Agreement, is freely and
voluntarily made, without any duress or coercion and after careful review, with
the assistance of legal counsel, of all of the terms and provisions hereof, and
further acknowledges and agrees that the release and xxxxxx stated in this
paragraph shall have been fully earned upon the Bank's execution of this Letter
Agreement, shall not be subject to rescission or nullification at any time
hereafter due to the occurrence or nonoccurrence of any subsequent event, and
(notwithstanding anything in this Letter Agreement to the contrary) shall
survive the termination of this Letter Agreement and the termination of the
Bank's forbearance hereunder.
INDEPENDENT
BANK
By:
/s/ X.
Xxxxxxxxx
Name: Xxxxxx
Xxxxxxxxx
Its: Senior
Vice
President
AGREED AND
ACCEPTED:
MAINSTREET
FINANCIAL CORPORATION
By:
/s/ Xxxxx X.
Xxxxxxxx
Name: Xxxxx
X.
Xxxxxxxx
Its:
President
1372381/2
