Exhibit 10.2
[RICHMOND COUNTY FINANCIAL CORP. LETTERHEAD]
__________________, 1997
Richmond County Financial Corp.
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Dear ___________:
This letter confirms Richmond County 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: Richmond County Financial Corp. (the "Company").
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2. Borrower: Richmond County Savings Bank Employee Stock Ownership Plan.
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3. Trustee: _________________________.
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4. Security: Unallocated shares of stock of the Company held in the
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Richmond County Savings Bank Employee Stock Ownership Plan.
5. Maturity: Up to 20 years from takedown.
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6. Amortization: Equal annual principal and interest payments
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7. Pricing:
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a. [___%] or [the Prime Rate as published in the Wall Street Journal
on the date of the loan transaction].
8. Interest Payments:
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a. Annual on a 360 day basis.
9. Funding: In full by ______________, unless such date is waived by the
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Company.
10. Prepayment: Voluntary prepayment are permitted at any time.
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11. Conditions Precedent to Closing: Receipt by the Company of all
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supporting loan documents in a form and with terms and conditions
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 Richmond County Savings Bank or the
Company.
12. Closing Date: Not later than __________, unless such date is waived by
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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,
Lending Officer
Accepted on Behalf of
Richmond County Savings Bank
By: Date:
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President and Chief Executive Officer
RICHMOND COUNTY SAVINGS BANK
EMPLOYEE STOCK OWNERSHIP TRUST
LOAN AND SECURITY AGREEMENT
Richmond County Financial Corp.
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___________________, 1997
Gentlemen:
The undersigned, ____________________ ("Trustee"), not individually but
solely as Trustee under the Richmond County Savings Bank Employee Stock
Ownership Trust (the "Trust") effective ________ (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. Richmond County Financial
Corp. is hereinafter referred to as the "Lender". The term "Bank" as used
herein refers to the sponsoring employer of the Richmond County Savings Bank
Employee Stock Ownership Plan (the "ESOP").
SECTION ONE. THE TERM LOAN.
1.1 Amount and Terms. Subject to and upon the terms and conditions
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herein set forth, the Lender agrees to lend amounts to the Borrower from time to
time during the period of this agreement up to but not including ___________
(the "Maturity Date") in an aggregate principal amount sufficient to permit the
Borrower to acquire a number of shares ("Shares") of common stock, par value
$0.01 ("Common Stock") of Richmond County Financial Corp., a Delaware
corporation, and the Holding Company of the Bank, equal to 8% of the Shares
issued in connection with the conversion of the Bank from the mutual to stock
form ("Loan Amount").
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 to mature in
twenty (20) equal annual installments consisting of both principal and interest
amortized over a twenty (20) period in an amount sufficient to repay all
borrowed amounts plus interest, commencing on ________________ and on the last
day of each and every ______________ 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 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.
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
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to maturity shall be due and payable on an annual basis on the last day of each
year (commencing ______________) and at maturity (unless prepaid in whole prior
to such date, then on the date of
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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-Pledge Shares. The Borrower hereby grants,
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pledges and assigns to the Lender all Shares of the issues 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 at
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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 continuing, as promptly as is
practicable after ______________ in each year (the period commencing ___________
and ending __________ and each subsequent 12-month period ending on ___________
being hereinafter 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.
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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 or 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 or the date of the disbursement of 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.
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5.5 The ESOP and Trust have no material liabilities, whether absolute or
contingent, except for those heretofore disclosed to the Lender.
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 credits' 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 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 (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) , (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 Bank has taken such actions as are required by applicable law to
be taken by it to establish the ESOP and the Trust.
6.6 There is no action, suit, investigation or proceeding pending, or to
the best knowledge of the Bank, threatened against or affecting the ESOP before
any court or governmental department, agency or instrumentality.
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6.7 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.
6.8 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 6 days of the date 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 Bank shall apply for a determination letter
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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 an
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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 shall be 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
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its obligations pursuant to the Loan, cash 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 New York (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
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institutions are generally open for business in New York other than a Saturday
or Sunday.
10.2 The term "Event of Default" shall mean any event condition
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specified as such in Section 9.1 hereof and the term "Default" shall mean any
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event or condition which, with the lapse of time, the giving of notice, or both
would constitute an Event of Default.
Capitalized terms defined elsewhere in this Agreement shall have the
meanings as defined in all provisions hereof.
10.3 The term "Interest Rate" shall mean prime rate as published in the
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Wall Street Journal on _______________________.
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 New York 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 Noter 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 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 _________________________________ Trust Officer, if to the Lender
at _____________________________________, or at such other address as shall be
designated by any party hereto in written notice to each other party pursuant to
this Section 11.6.
11.7 Headings. Article and Section headings used in this Agreement are for
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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 binding
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upon the Borrower and its successors and assigns and shall inure to 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 New York 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 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 at Trustee under that certain Richmond county
Savings Bank Employee Stock Ownership Trust effective __________________, by and
between the undersigned and Richmond County Savings Bank and this Agreement
shall be binding upon the understanding 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 Lender's
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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) of the Code 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.
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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 _________________
_________________, and its successors in
trust, as Trustee under that certain
Richmond County Savings Bank Employee Stock
Ownership Trust effective _____________ by
and between the undersigned and Richmond
County Savings Bank.
By
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Accepted and agreed to at Staten Island, New York as of the
date last above written.
By
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EXHIBIT A
PROMISSORY NOTE
Amount sufficient to satisfy the Loan Amount ________, 199_
Staten Island, New York
For VALUE RECEIVED, the undersigned, _____________, not individually but
solely as Trustee under that certain Richmond County Savings Bank Employee Stock
Ownership Trust effective ____________ by and between the undersigned
("Borrower") and Richmond County Savings Bank promises to pay to the order of
Richmond County Financial Corp. (the "Lender") at its office at
___________________________, the aggregate unpaid principal amount of all loan
amounts or advances under the loan made to the Borrower under Section 1.1 of the
Loan and Security Agreement hereinafter referred to in twenty (20) consecutive
annual equal installments, consisting of both principal and interest, amortized
over a twenty (20) year period in an amount sufficient to repay all borrowed
amounts plus interest, payable annually on ____________________, 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 January, commencing
_____________________, and in each year thereafter and on the final maturity
date of this Note. On demand, the Borrower promises to pay interest and 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 Richmond
County Savings Bank 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 by or referred to in such Loan and
Security Agreement.
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 to 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 New York 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 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
Richmond County Savings Bank Employee
Stock Ownership Trust effective
___________ by and between the
undersigned and Richmond County
Savings Bank
By:
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EXHIBIT B
SECURITY AGREEMENT
INSTRUMENTS OR NEGOTIABLE DOCUMENTS TO BE DEPOSITED
For new value contemporaneously given by Richmond County 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 possession thereof and to the grant
of the security interest hereby made:
All Shares of the common stock, par value $.01 per share, of Richmond
County Financial Corp., a Delaware corporation, acquired with the proceeds
of the Loan Amount.
▇▇▇▇▇▇▇▇ agrees to deliver said collateral to said ▇▇▇▇▇▇ not later than
the close of business on _________________, said date being within _____
days from the date hereof.
Said security interest secures the payment of all indebtedness and
liabilities as undertaken in the Loan and Security Agreement OF 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 New York,
particularly the Uniform Commercial Code, except where preempted by federal law.
Dated at Staten Island, New York the ___ day of _____________.
_____________________, and its successors in
trust, as Trustee under that certain
Richmond County Savings Bank Employee Stock
Ownership Trust effective ____________ by
and between the undersigned and Richmond
County Savings Bank.
By:
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