EXHIBIT 10.2 DRAFT ESOP LOAN COMMITMENT LETTER AND ESOP LOAN DOCUMENTS
Exhibit 10.2
FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF WARREN
EMPLOYEE STOCK OWNERSHIP TRUST
LOAN AND SECURITY AGREEMENT
First Place Financial Corp.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
_____, 199_
Gentlemen:
The undersigned, _______________________ ("Trustee"), not individually but
solely as Trustee under the First Federal Savings and Loan Association of ▇▇▇▇▇▇
Employee Stock Ownership Trust (the "Trust") effective [_________, 1998] (the
"Borrower"), applies to you for your commitment, subject to all of the terms and
conditions hereof and on the basis of the representations hereinafter set forth,
to make a loan available to the Borrower as hereinafter set forth. First Place
Financial Corp. is hereinafter referred to as the "Lender". The term
"Association" as used herein refers to First Federal Savings and Loan
Association of ▇▇▇▇▇▇, as the sponsoring employer of First Federal Savings and
Loan Association of ▇▇▇▇▇▇ Employee Stock Ownership Plan (the "ESOP").
SECTION ONE. THE TERM LOAN.
1.1 AMOUNT AND TERMS. By its acceptance hereof the Lender agrees, subject
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to all of the terms and conditions hereof and on the basis of the
representations hereinafter set forth, to make a loan (the "Loan") of up to
_______________________________ ($ ____________) (the "Commitment"), such
proceeds to be used by the Borrower entirely to finance the purchase of shares
("Shares") of the common stock, par value $.01 of First Place Financial Corp., a
Delaware corporation in connection with the public offering being conducted as
part of the conversion of the Association from the mutual into the stock form of
organization.
The Loan is intended to be an "exempt loan" as described in Section 4975(d)
of the Internal Revenue Code of 1986, as amended (the "Code"), as defined in
Section 54.4975-7(b) of the Treasury Regulations (the "Regulations"), as
described in Section 408(b)(3) of the Employee Retirement Income Security Act of
1974, as amended ("ERISA") and as described in Department of Labor Regulations
Section 2550.408b-3 (collectively, the "Exempt Loan Rules").
1.2 THE NOTE. The disbursement of the Loan pursuant to Section 1.1
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hereof shall be made against and evidenced by a promissory note of the Borrower
in the form annexed hereto as Exhibit A (the "Note"), such Note to bear interest
as hereinafter provided, and shall become due and payable in fifteen (15) equal
annual installments
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consisting of both principal and interest amortized over a fifteen (15) year
period in an amount sufficient to repay the Loan plus interest, commencing on
_____ __, 1998 and on the last Business Day of each and every ____________ each
year, except that the final installment in the amount of all principal and
interest not sooner paid shall be due on _____ __, __ the final maturity
thereof.
Without regard to the principal amount of the Note stated on its face, the
actual principal amount at any time outstanding and owed by the Borrower on
account of the Note shall be the amount of the disbursement of the Loan made by
the Lender under Section 1.1 hereof less all payments of principal actually
received by the Lender. The amount of such disbursement made by the Lender and
any repayments of principal thereof shall be recorded by the Lender on its books
or records or, at its option, endorsed on the reverse side of the Note by the
Lender and the unpaid principal balance at any time so recorded or endorsed by
the Lender shall be prima facie evidence in any court or other proceedings
brought to enforce the Note of the principal amount remaining unpaid thereon.
1.3 EXEMPT LOAN RULES. Notwithstanding anything to the contrary
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contained in this Loan and Security Agreement (the "Agreement") or in the Note,
the Borrower shall be obligated to make repayments of the Loan only to the
extent that such repayments when added to the repayments theretofore made during
the applicable plan year would not exceed an amount which would cause the
limitations of Section 415 of the Code to be exceeded for any ESOP participant.
Except as set forth in the next succeeding sentence and to the extent
permitted by applicable law, including, without limitation, the Exempt Loan
Rules, the principal amount of the Loan and any interest thereon shall be
payable solely from contributions (other than contributions of employer
securities) made to the Trust in accordance with the ESOP, and cash dividends
received on the Shares, to enable the Borrower to pay its obligations under the
Loan and from earnings attributable to the Shares and the investment of such
contributions and dividends.
The Lender acknowledges and agrees that it shall have no other recourse
against the Borrower for repayment of the Loan and that it shall have no
recourse against assets of the ESOP included in the Trust other than pursuant to
Sections 3 and 8 hereof.
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SECTION TWO. INTEREST AND FEES.
2.1 INTEREST RATE. The Loan shall bear interest (which the Borrower
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hereby promises to pay) prior to maturity (whether by lapse of time,
acceleration or otherwise) at a rate per annum equal at all times to the
Interest Rate as defined in Section 10.3 hereof.
2.2 BASIS AND PAYMENT DATES. All interest accruing on the Note prior to
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maturity shall be due and payable on an annual basis on the last Business Day of
each year (commencing ____________, 199_) and at maturity (unless prepaid in
whole prior to such date, then on the date of such prepayment in whole) and
interest accruing after maturity shall be due and payable upon demand. All
interest on the Note shall be computed on the basis of a year of 360 days.
SECTION THREE. COLLATERAL.
3.1 GRANT OF SECURITY INTEREST-PLEDGED SHARES. The Borrower hereby
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grants, pledges and assigns to the Lender all shares of the issued and
outstanding common stock, par value $.01 per share all of which were either (i)
purchased by the Borrower from the proceeds of the disbursement of the Loan;
(ii) acquired by the Borrower with the proceeds of a prior exempt loan within
the meaning of Section 54.4975-7(b) of the Regulations, and pledged as
collateral for such prior exempt loan, where the balance of such prior exempt
loan has been repaid with the proceeds of the disbursement of the Loan (the
"Pledged Shares" being hereinafter referred to as the "Collateral"). The
Pledged Shares shall be evidenced by a stock certificate. The assignment and
pledge herein granted and provided for is made and given to secure and shall
secure the prompt payment of principal of and interest on the Note as and when
the same becomes due and payable and the payment, observance and performance of
any and all obligations and liabilities arising under or provided for in this
Agreement or the Note or any of them in each instance as the same may be amended
or modified and whether now existing or hereafter arising.
3.2 FURTHER ASSURANCES. The Borrower covenants and agrees that it will
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at any time and from time to time as requested by the Lender execute and deliver
such further instruments and do and perform such other acts as the Lender may
reasonably deem necessary or desirable to provide for or perfect the lien of the
Lender in the Collateral hereunder.
3.3 VOTING. Upon the occurrence of a Default or an Event of Default
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hereunder, the Lender shall have the right to transfer the Collateral or any
part thereof into its name or into the name of its nominee. The Lender shall
not be entitled to vote the Pledged Shares unless and until an Event of Default
has occurred and so long as the same shall not have been waived by the Lender.
3.4 PARTIAL RELEASES. The Lender agrees, provided always that no Default
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or Event of Default shall have occurred and be continuing, as promptly as is
practicable after _____________ in each year (the period commencing ___________
and ending on
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________________ being herein after referred to as a "Plan Year"), to release
that number of Pledged Shares then being held to secure the Loan which is equal
to the number of such Pledged Shares held as of the last day of the Plan Year
multiplied by a fraction, the numerator of which is the aggregate amount of all
principal and interest payments made on the Note during the Plan Year and the
denominator of which is the sum of the numerator plus the unpaid principal and
interest of the Note as of the last day of such Plan Year.
SECTION FOUR. PAYMENTS.
4.1 PLACE AND APPLICATION. All payments of principal, interest, fees and
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all other amounts payable hereunder shall be made to the Lender at ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, for the account of the Lender (or at such
other place for the account of the Lender as the Lender may from time to time in
writing specify to the Borrower) in immediately available and freely
transferable funds at the place of payment. All payments shall be paid in full
without setoff or counterclaim and without reduction for and free from any and
all taxes, levies, duties, fees, charges, deductions, withholdings, restrictions
or conditions of any nature imposed by any government or any political
subdivision or taxing authority thereof.
4.2 PREPAYMENTS. The Borrower shall have the privilege of prepaying in
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whole or in part the Note at any time upon giving three (3) Business Days' prior
notice to the Lender, each such prepayment to be made by the payment of the
principal amount to be prepaid and accrued interest thereon to the date fixed
for prepayment. All such prepayments shall be made without premium or penalty.
Prepayments shall first be applied to the several installments of the Note in
the inverse order of their respective maturities.
SECTION FIVE. REPRESENTATIONS AND WARRANTIES.
The Borrower represents and warrants to the Lender as follows:
5.1 The Trust is a duly organized, validly existing employee stock
ownership trust.
5.2 The proceeds of the disbursement of the Loan shall be applied in their
entirety to the payment of the purchase price for the Pledged Shares.
5.3 The Borrower has full right, power and authority to enter into this
Agreement, to make the borrowings hereunder provided for, to issue the Note in
evidence thereof and to perform each and all of the matters and things herein
and therein provided for and this Agreement does not, and the Note when issued
will not, nor will the performance or observance by the Borrower of any of the
matters or things herein or therein provided, contravene any provision of law or
the Trust or any other covenant or agreement affecting the Trust or any of its
assets. As of the date of the disbursement of
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the Loan, the Pledged Shares will be fully paid and non-assessable and the
Pledged Shares will be owned by the Borrower free and clear of all liens,
charges and encumbrances whatsoever, except for any lien of Lender provided for
herein.
5.4 Except as disclosed to the Lender in writing, there is no litigation
or governmental proceeding pending, nor to the knowledge of the Borrower
threatened, against the ESOP and Trust.
5.5 The ESOP and Trust have no material liabilities, whether absolute or
contingent, except for those heretofore disclosed to the Lender.
5.6 The Association has taken such actions as are required by applicable
law to be taken by it to establish the ESOP and the Trust.
5.7 There is no action, suit, investigation or proceeding pending, or to
the best knowledge of the Association, threatened against or affecting the ESOP
before any court or governmental department, agency or instrumentality.
SECTION SIX. REPRESENTATIONS AND WARRANTIES OF THE LENDER
The Lender represents and warrants that:
6.1 The Lender is a corporation duly organized under the laws of the State
of Delaware, and is validly existing and in good standing under the laws of the
State of Delaware. The Lender has full power and authority and legal right to
make and perform this Agreement.
6.2 The execution, delivery and performance by the Lender of this
Agreement have been duly authorized by all necessary action by the Lender and is
not and will not violate any provisions of law applicable to the Lender, any
rules, regulations or orders applicable to the Lender or any judgments or
decrees binding upon the Lender. This Agreement is a valid and legally binding
obligation of the Lender enforceable against the Lender in accordance with its
terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting creditors' rights
generally and the general principles of equity (regardless of whether considered
in a proceeding at law or in equity).
6.3 No authorizations, approvals or consents of, and no filings or
registrations with, any governmental regulatory authority or agency are required
for the execution, delivery or performance by the Lender of this Agreement, or
any transaction contemplated hereby, or for the validity or enforceability
against the Lender hereof except as have already been received or accomplished.
6.4 The execution, delivery and performance of the Agreement and the
consummation of the transactions contemplated hereby will not violate, conflict
with or constitute a default under (i) any of the provisions of the Lender's
Certificate of
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Incorporation or Bylaws, (ii) any provision of any agreement, instrument, order,
arbitration award, judgment or decree to which the Lender is a party or by which
it is or its assets are bound or (iii) any statute, rule or regulation of any
federal, state or local government or agency applicable to the Lender, except in
any such case (i), (ii), or (iii) above, for any such conflicts, violations,
defaults which either individually or in the aggregate do not have a material
adverse effect on the business properties of the Lender and its subsidiaries,
taken as a whole.
6.5 The Loan will be an "exempt loan" as that term is defined under
Section 54.4975-7(b)(1)(iii) of the Regulations, provided the ESOP Committee
determines that the interest rate is not more than reasonable; and the
transactions contemplated by this Agreement are not "prohibited transactions"
within the meaning of Section 4975 of the Code or Section 406(a) of ERISA.
6.6 Except as otherwise provided in this Agreement, the Shares are not
subject to any restriction on transfer under applicable Federal securities law
and may be freely traded over-the-counter.
SECTION SEVEN. CONDITIONS PRECEDENT.
The obligation of the Lender to make the Loan shall be subject to
satisfaction of the following conditions precedent:
7.1 The Lender shall have received executed originals of this Agreement
and the Note duly signed and properly completed.
7.2 The Lender shall have received either (i) the certificate evidencing
all the Pledged Shares together with duly executed blank stock power therefore
or (ii) if such Pledged Shares are not yet available, a duly executed agreement
to pledge such stock in the form attached hereto as Exhibit B (in which event
such certificate and stock power will be delivered within 10 days of the date of
the Lender makes the Loan).
7.3 The Lender shall have received copies (executed or certified, as may
be appropriate) of all legal documents or proceedings taken in connection with
the execution and delivery of this Agreement and the Note.
SECTION EIGHT. COVENANTS.
Borrower covenants and agrees that so long as any amount remains unpaid on
the Note or the Commitment is outstanding, except to the extent compliance in
any case or cases is waived in writing by the Lender:
8.1 COMPLIANCE. The Borrower will comply with all requirements of the
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Code, ERISA and any other law, rule or regulation applicable to it as such laws,
rules or regulations affect the ESOP or the Trust.
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8.2 REPORTS.
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(a) The Borrower will maintain a system of accounting for the ESOP and
the Trust in accordance with sound accounting practice and will, from time
to time, furnish to the Lender and its duly authorized representatives,
such information and data with respect to the financial condition of the
ESOP and the Trust as the Lender may reasonably request.
(b) Without any request the Borrower will furnish to the Lender
promptly after knowledge thereof shall have come to the attention of the
Borrower, written notice of the occurrence of any Default or Event of
Default hereunder or of any threatened or pending litigation or
governmental proceeding against the Plan or the Trust.
8.3 DETERMINATION LETTER. The Association shall apply for a
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determination letter from the Internal Revenue Service that the Plan and the
Trust, taken together, qualify as an employee stock ownership plan for purposes
of Section 4975(e)(7) of the Code and the rules and regulations thereunder.
SECTION NINE. EVENTS OF DEFAULT AND REMEDIES.
9.1 EVENT OF DEFAULT. Any one or more of the following shall constitute
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an Event of Default hereunder:
(a) The Borrower shall default in the payment of principal and/or
interest in respect of the Note or any other amounts payable under this
Agreement when due;
(b) Any representation, warranty or statement made by the Borrower
herein or in connection with the making of the Loan proves to be incorrect
in any material respect as of the date of the issuance or making thereof;
(c) The Borrower shall default in the due performance or observance by
it of any term, covenant or agreement (other than those referred to in
subparts (a) and (b), inclusive, of this Section 9.1) contained in this
Agreement and such default shall continue unremedied for a period of 30
days after notice to the Borrower by the Lender or any other holder of the
Note;
(d) The ESOP is terminated prior to the expiration of the term of this
Agreement.
9.2 LIMITATIONS ON USE OF TRUST ASSETS. When any Event of Default
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described in subsections (a) to (c), of Section 9.1 has occurred and is
continuing, the Lender or the holder of the Note shall have no rights to assets
of the Trust other than (i) contributions (other than contributions of employer
securities) that are made by the Lender to enable the Borrower to meet its
obligations pursuant to the Loan, cash
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dividends received by the Borrower on the Shares and earnings attributable to
the investment of such contributions and dividends and (ii) the Pledged Stock;
provided further, however, that the value of Trust assets transferred to the
Lender as a result of an Event of Default shall not exceed the amount of the
repayment then in default, and, provided further, that so long as the Lender is
a "party in interest" within the meaning of ERISA Section 3(14) or a
"disqualified person" within the meaning of Section 4975(e)(2) of the Code, a
transfer of Trust assets upon default shall be made only if, and to the extent
of, the Borrower's failure to meet the loan's payment schedule.
9.3 RIGHTS UPON AN EVENT OF DEFAULT. When any Event of Default has
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occurred and is continuing the Lender may, in addition to such other rights or
remedies as it may have, then or at any time or times thereafter exercise with
respect to the Collateral any and all of the rights, options and remedies of a
secured party under the Uniform Commercial Code of Ohio (the "UCC") including
without limitation the sale of all or any part of the Collateral at any brokers'
board or any public or private sale, provided, however that the Lender shall
only be able to exercise such rights and remedies to the extent of all interest
and principal payments which are due and payable as of the date of the Event of
Default and provided further that prior to such exercise the Lender shall
release from the Collateral so much thereof as it would have been required to
release under Section 3.4 hereof if the period from the previous ___________ to
the date of such release constituted a Plan Year and no Event of Default had
occurred. The net proceeds of any such sale, after deducting all costs and
expenses incurred in the collection, protection, sale and delivery of the
Collateral (which expenses Borrower promises to pay) shall be applied first to
the payment of any costs and expenses incurred by the Lender in selling or
otherwise disposing of the Collateral, second, to the payment of the principal
of and the interest on the Note, and, third, ratably as among any other items of
the indebtedness hereby secured. Any surplus remaining after the full payment
and satisfaction of the foregoing shall be returned to the Borrower or to
whomsoever a court of competent jurisdiction shall determine to be entitled
thereto. Any requirement of said UCC as to reasonable notice shall be met by
the Lender personally delivering or mailing notice (by certified mail - return
receipt requested) to the Borrower at its address as provided in Section 11.6
hereof at least ten (10) days prior to the event giving rise to the requirement
of such notice. In connection with any offer, solicitation or sale of the
Collateral, the Lender may restrict bidders and otherwise proceed in whatever
manner it reasonably believes appropriate in order to comply or assure
compliance with applicable legal requirements pertaining to the offer and sale
of securities of the same type as the Collateral.
9.4 ERISA RESTRICTIONS. The number of shares of Pledged Stock as to which
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the Lender may exercise the rights set forth in this Section 9 may not exceed
that number of shares (then remaining subject to pledge hereunder) which is then
equal in current value to the amount in default under the Note. The remedies
set forth in this Section 9 may only be exercised to the extent consistent with
the restrictions on remedies set forth in Section 408(b)(3) of ERISA and the
regulations thereunder and Section 4975(d)(3) of the Code and the regulations
thereunder.
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SECTION TEN. DEFINITIONS.
10.1 The term "Business Day" shall mean any day on which savings
institutions are generally open for business in Ohio other than a Saturday or
Sunday.
10.2 The term "Event of Default" shall mean any event condition specified
as such in Section 9.1 hereof and the term "Default" shall mean any event or
condition which, with the lapse of time, the giving of notice, or both would
constitute an Event of Default.
10.3 The term "Interest Rate" shall mean prime rate as published in the
Wall Street Journal on _______________, 1998.
Capitalized terms defined elsewhere in this Agreement shall have the
meanings as defined in all provisions hereof
SECTION ELEVEN. MISCELLANEOUS.
11.1 HOLIDAYS. If any principal of the Note shall fall due on Saturday,
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Sunday or on another day which is a legal holiday for savings institutions in
the State of Ohio, interest at the rate the Note bears for the period prior to
maturity shall continue to accrue on such principal from the stated due date
thereof to and including the next succeeding Business Day on which the same is
payable.
11.2 NO WAIVER, CUMULATIVE REMEDIES. No delay or failure on the part of
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the Lender or the part of the holder of the Note in the exercise of any power or
right shall preclude any other or further exercise thereof, or the exercise of
any other power or right, and the rights and remedies hereunder of the Lender
and of any holder of the Note are cumulative to, and not exclusive of, any
rights or remedies which any of them would otherwise have.
11.3 AMENDMENTS, ETC. No amendment, modification, termination or waiver
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of any provision of this Agreement or of the Note nor consent to any departure
by the Borrower therefrom, shall in any event be effective unless the same shall
be in writing and signed by the Lender, and then such consent, modification or
waiver shall be effective only in the specific instance and for the specific
purpose for which given. No notice to or demand on the Borrower in any case
shall entitle the Borrower to any other further notice or demand in similar or
other circumstances.
11.4. SURVIVAL OF REPRESENTATIONS. All representations and warranties
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made herein or in certificates given in connection with the Loan shall survive
the execution and delivery of this Agreement and of the Note, and shall continue
in full force and effect with respect to the date as of which they were made as
long as any credit is in use or available hereunder.
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11.5 PAYMENTS. So long as the Lender is the holder of the Note, the
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Borrower will promptly and punctually pay the principal of and interest on the
Note without presentment of the Note and without any notation of any such
payment being made on the Note.
11.6 ADDRESSES FOR NOTICES. All communications provided for herein shall
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be in writing and shall be deemed to have been given or made when served
personally or when deposited in the United States mail addressed, if to the
Borrower at ____________________, ATTN: Trust Officer; if to the Lender at ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, or at such other address as shall be
designated by any party hereto in a written notice to each other party pursuant
to this Section 11.6.
11.7 HEADINGS. Article and Section headings used in this Agreement are
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for convenience or reference only and are not a part of this Agreement for any
other purpose.
11.8 SEVERABILITY OF PROVISIONS. Any provision of this Agreement which is
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unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such unenforceability without impairing the enforceability of
the remaining provisions hereof affecting the enforceability of such provision
in any other jurisdiction.
11.9 COUNTERPARTS. This Agreement may be executed in any number of
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counterparts, and by different parties hereto on separate counterparts, and all
such counterparts taken together shall be deemed to constitute one and the same
instrument.
11.10 BINDING NATURE, GOVERNING LAW, ETC. This Agreement shall be
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binding upon the Borrower and its successors and assigns and shall inure to the
benefit of the Lender and the benefit of its successors and assigns, including
any subsequent holder of the Note. To the extent not preempted by Federal law,
this Agreement and the rights and duties of the parties hereto shall be
construed and determined in accordance with the laws of the State of Ohio
without regard to principles of conflicts of laws. This Agreement constitutes
the entire understanding of the parties with respect to the subject matter
hereof and any prior agreements, whether written or oral, with respect thereto
are superseded hereby.
11.11 CONCERNING THE BORROWER. The term "Borrower" as used herein shall
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mean and include the undersigned as Trustee of the Trust and its successors in
trust not individually but solely as Trustee under that certain First Federal
Savings and Loan Association of ▇▇▇▇▇▇ Employee Stock Ownership Trust effective
_________, 199_, by and between the undersigned and First Federal Savings and
Loan Association of ▇▇▇▇▇▇ and this Agreement shall be binding upon the
undersigned and its successors and assigns and upon the trust estate. The
undersigned assumes no personal or individual liability or responsibility for
payment of the indebtedness evidenced by the Note or for observance or
performance of the covenants and agreements herein contained or for the
truthfulness of the representations and warranties herein contained, the
undersigned having executed this Agreement and the Note solely in its capacity
as trustee as aforesaid to bind the undersigned, its successors in trust and the
trust estates.
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11.12 LIMITED LIABILITY. Anything contained herein or in the Note to the
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contrary notwithstanding, the sole and only recourse of the Lender and any other
holder of the Note for payment of the obligations hereunder and under the Note,
as against the Borrower for the payment of the obligations hereunder and under
the Note shall be to (i) the Collateral, (ii) contributions, other than employer
securities not constituting Collateral hereunder, made to the ESOP and the Trust
by sponsoring employers to enable the Borrower to meet its obligations hereunder
and under the Note, and (iii) earnings attributable to the Pledged Shares and to
the investment of such employer contributions, but only to the extent of the
failure of the Borrower to meet the payment schedule of the Loan provided for
herein. The Trust assets may be transferred to Lender upon the occurrence of a
Default or an Event of Default hereunder only upon and to the extent of the
failure of the Plan to meet the payment schedule of the Loan. In no event may
the value of the Trust assets so transferred exceed the amount of the default.
11.13 ▇▇▇▇▇▇'S DUTY OF CARE. It is agreed and understood that the
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▇▇▇▇▇▇'s duty with respect to the Collateral shall be solely to use reasonable
care in the custody and preservation of the Collateral in the Lender's
possession, which shall not include any steps necessary to preserve rights
against prior parties.
All provisions in this Agreement shall be construed so as to maintain (i)
the ESOP as a qualified leveraged employee stock ownership plan under Sections
401(a) and 4975(e)(7) of the Code, (ii) the Trust as exempt from taxation under
Section 501(a) of the Code, and (iii) the Loan as an "exempt loan" under the
Exempt Loan Rules.
[Remainder of this page intentionally left blank]
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Upon your acceptance hereof in the manner hereinafter set forth, this
Agreement shall constitute a contract between us for the uses and purposes
hereinabove set forth.
Dated as of this _____ day of ______________________, 1998.
_______________________, and its successors in trust,
as Trustee under that certain First Federal Savings and
Loan Association of ▇▇▇▇▇▇ Employee Stock Ownership
Trust by and between the undersigned and First Federal
Savings and Loan Association of Warren.
By___________________________
Accepted and agreed to at Warren, Ohio as of the date last above written
FIRST PLACE FINANCIAL CORP.
By__________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
President and Chief Executive Officer
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EXHIBIT A
PROMISSORY NOTE
$ __________
Warren, Ohio
_________________, 1998
For VALUE RECEIVED, the undersigned, _____________________, not
individually but solely as Trustee under that certain First Federal Savings and
Loan Association of ▇▇▇▇▇▇ Employee Stock Ownership Trust by and between the
undersigned ("Borrower") and First Federal Savings and Loan Association of
Warren promises to pay to the order of First Place Financial Corp. (the
"Lender") at its office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, the
principal sum of _____________________________ ($_______________ ), if less,
the aggregate principal amount of the loan made to the Borrower under Section
1.1 of the Loan and Security Agreement hereinafter referred to in fifteen
consecutive annual installments consisting of both principal and interest,
amortized over a fifteen (15) year period in an amount sufficient to repay the
Loan plus interest, payable annually commencing on _______, 199_, and on the
last Business Day of each and every ____________ in each year thereafter, except
that the final installment in the amount of all principal and interest not
sooner paid shall be due on ________, ____, the final maturity hereof.
The Borrower promises to pay interest (computed on the basis of a year of
360 days) at said office on the balance of principal from time to time remaining
outstanding and unpaid hereon at the rate per annum equal at all times to the
Interest Rate as defined in Section 10.3 of the Loan and Security Agreement (as
defined below) on the last Business Day of each and every _________________,
commencing _______, ____, and in each year thereafter and on the final maturity
date of this Note. On demand, the Borrower promises to pay interest on any
overdue principal hereof (whether by lapse of time, acceleration, or otherwise)
until paid at the stated rate.
This Note is issued under the terms and provisions of that certain First
Federal Savings and Loan Association of ▇▇▇▇▇▇ Employee Stock Ownership Trust
Loan and Security Agreement bearing even date herewith by and between the
Borrower and the Lender (the "Loan and Security Agreement") and this Note and
the holder hereof are entitled to all the benefits and security provided for
thereby or referred to therein to which Loan and Security Agreement reference is
hereby made for a statement thereof.
This Note may be declared due prior to its express maturity and voluntary
prepayments may be made hereon, all in the events, on the terms and in the
manner as provided in such Loan and Security Agreement.
Recourse for the payment of this Note has been limited by the provisions of
the Loan and Security Agreement and this Note is expressly made subject to such
provisions. This Note shall be governed by and construed in accordance with the
laws of Ohio
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without regard to principles of conflicts of laws. The Borrower hereby waives
presentment for payment and demand.
Upon the occurrence of an Event of Default as such term is defined in the
Loan and Security Agreement at the option of the Lender, all amounts payable by
the Borrower to the Lender under the terms of this Note may immediately become
due and payable by the Borrower to the Lender pursuant to the provisions of
Section 9.2 of the Loan and Security Agreement, and the Lender shall have all of
the rights, powers, and remedies available under the terms of this Note, any of
the other documents evidencing and securing this Loan and all applicable laws.
The Borrower and all endorsers, guarantors, and other parties who may now or in
the future be primarily or secondarily liable for the payment of the
indebtedness evidenced by this Note hereby severally waive presentment, protest
and demand, notice of protest, notice of demand and of dishonor and non-payment
of this Note and expressly agree that this Note and any payment hereunder may be
extended from time to time without in any way affecting the liability of the
Borrower, guarantors and endorsers.
_____________________, and its successors in trust, as
Trustee under that certain First Federal Savings and
Loan Association of ▇▇▇▇▇▇ Employee Stock Ownership
Trust by and between the undersigned and First Federal
Savings and Loan Association of Warren.
By: _______________________
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EXHIBIT B
SECURITY AGREEMENT
INSTRUMENTS OR NEGOTIABLE DOCUMENTS TO BE DEPOSITED
For new value contemporaneously given by First Place Financial Corp.,
("Lender") to the undersigned ("Borrower"), the receipt whereof is hereby
acknowledged, the Borrower does hereby grant a security interest to said ▇▇▇▇▇▇
in the instruments or negotiable documents hereafter described ("Collateral"),
in all of which Collateral the Borrower warrants that the Borrower has good,
valid and effective rights to the ownership and possession thereof and to the
grant of the security interest hereby made:
______________ shares of the common stock, par value $.01 per share, of
First Place Financial Corp., a Delaware corporation.
▇▇▇▇▇▇▇▇ agrees to deliver said collateral to said ▇▇▇▇▇▇ not later than
the close of business on ___________________, ____, said date being within 10
days from the date hereof.
Said security interest secures the payment of all indebtedness and
liabilities as undertaken in the Loan and Security Agreement to which this is a
part, now existing or hereafter arising, and the Lender has all the rights with
respect to said ▇▇▇▇▇▇▇▇▇▇ and said security interest as more fully set forth in
the form of secured note or notes executed and delivered by the undersigned to
said Lender prior hereto or contemporaneously herewith.
This agreement, including matters of interpretation and construction, and the
rights of the Lender and the duties and obligations of the debt hereunder are to
be determined in accordance with the laws of the State of Ohio, particularly the
Uniform Commercial Code, except where preempted by federal law.
Dated at Warren, Ohio the ______ day of ________________, 1998.
______________________, and its successors in
trust, as Trustee under that certain First Federal
Savings and Loan Association of ▇▇▇▇▇▇ Employee
Stock Ownership Trust by and between the
undersigned and First Federal Savings and Loan
Association of Warren.
By: _________________________________
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[FIRST PLACE FINANCIAL CORP.]
_____________, 1998
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
President and Chief Executive Officer
First Federal Savings and Loan Association of Warren
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Dear ▇▇. ▇▇▇▇▇:
This letter confirms First Place Financial Corp.'s commitment to fund a
leveraged ESOP in an amount up to $_____________. The commitment is subject to
the following terms and conditions:
1. Lender: First Place Financial Corp. (the "Company").
-------
2. Borrower: First Federal Savings and Loan Association of Warren
--------
Employee Stock Ownership Plan (the "ESOP").
3. Trustee: _______________________.
-------
4. Security: Unallocated shares of stock of the Company held in the
--------
ESOP.
5. Maturity: Up to ____ years from takedown.
--------
6. Amortization: Equal principal payments on quarterly, semi-annual or
------------
annual basis; specific amount to be set prior to takedown upon
determination of total loan disbursements.
7. Pricing: The Prime Rate as published in the Wall Street Journal on
-------
the date of the loan transaction.
8. Interest Payments: Quarterly, semi-annual or annual 360 or 365 day
-----------------
basis.
9. Funding: In full by ____________, unless such date is waived by the
-------
Company.
10. Prepayment: Voluntary prepayments are permitted at any time.
-----------
11. Conditions Precedent to Closing: Receipt by the Company of all
--------------------------------
supporting loan documents in a form and with terms and conditions
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satisfactory to the Company and its counsel. Consummation of the
transaction will also be contingent upon no material adverse change
occurring in the condition of First Federal Savings and Loan
Association of ▇▇▇▇▇▇ or the Company.
12. Closing Date: Not later than ___________, unless such date is waived
------------
by the Company.
If the terms and conditions are agreeable to you, please indicate your
acceptance by signing the enclosed copy and returning it to my attention.
Sincerely,
Accepted on Behalf of First Federal
Savings and Loan Association of ▇▇▇▇▇▇
By: ______________________ Date: ___________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
President and Chief Executive Officer
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