LOAN AGREEMENT
by and between
EMPLOYEE STOCK OWNERSHIP PLAN TRUST
of
ROME BANCORP, INC.
and
ROME BANCORP, INC.
Made and Entered Into as of
March 24, 2005
TABLE OF CONTENTS
Page
Article I
Definitions
Section 1.1 Business Day............................................2
Section 1.2 Code....................................................2
Section 1.3 Default.................................................2
Section 1.4 ERISA...................................................2
Section 1.5 Event of Default........................................2
Section 1.6 Fiscal Year.............................................2
Section 1.7 Independent Counsel.....................................2
Section 1.8 Loan....................................................2
Section 1.9 Loan Documents..........................................2
Section 1.10 Pledge Agreement........................................2
Section 1.11 Principal Amount........................................2
Section 1.12 Promissory Note.........................................2
Section 1.13 Register................................................2
Article II
The Loan; Principal Amount; Interest; Security; Indemnification
Section 2.1 The Loan; Principal Amount..............................2
Section 2.2 Interest................................................3
Section 2.3 Promissory Note.........................................4
Section 2.4 Payment of Trust Loan...................................4
Section 2.5 Prepayment..............................................5
Section 2.6 Method of Payments......................................5
Section 2.7 Use of Proceeds of Loan.................................6
Section 2.8 Security................................................6
Section 2.9 Registration of the Promissory Note.....................6
Article III
Representations and Warranties of the Borrower
Section 3.1 Power, Authority, Consents..............................7
Section 3.2 Due Execution, Validity, Enforceability.................7
Section 3.3 Properties, Priority of Liens...........................7
Section 3.4 No Defaults, Compliance with Laws.......................7
Section 3.5 Purchases of Common Stock...............................7
(i)
Article IV
Representations and Warranties of the Lender
Section 4.1 Power, Authority, Consents..............................8
Section 4.2 Due Execution, Validity, Enforceability.................8
Section 4.3 ESOP; Contributions.....................................8
Section 4.4 Trustee; Committee......................................8
Section 4.5 Compliance with Laws; Actions...........................9
Article V
Events of Default
Section 5.1 Events of Default under Loan Agreement..................9
Section 5.2 Lender's Rights upon Event of Default...................9
Article VI
Miscellaneous Provisions
Section 6.1 Payments Due to the Lender.............................10
Section 6.2 Payments...............................................10
Section 6.3 Survival...............................................10
Section 6.4 Modifications, Consents and Waivers; Entire Agreement..10
Section 6.5 Remedies Cumulative....................................11
Section 6.6 Further Assurances; Compliance with Covenants..........11
Section 6.7 Notices................................................11
Section 6.8 Counterparts...........................................12
Section 6.9 Construction; Governing Law............................12
Section 6.10 Severability...........................................13
Section 6.11 Binding Effect; No Assignment or Delegation............13
EXHIBIT A Form of Promissory Note...........................................A-1
EXHIBIT B Form of Pledge Agreement..........................................B-1
EXHIBIT C Form of Assignment................................................C-1
(ii)
LOAN AGREEMENT
--------------
This LOAN AGREEMENT ("Loan Agreement") is made and entered
into effective as of the 24th day of March, 2005, by and between the EMPLOYEE
STOCK OWNERSHIP PLAN TRUST OF ROME BANCORP, INC. ("Borrower"), a trust forming
part of the Employee Stock Ownership Plan of Rome Bancorp, Inc. ("ESOP"), acting
through and by its Trustee, RSGroup Trust Company ("Trustee"), a trust company
organized under the laws of the State of Maine; and Rome Bancorp, Inc.
("Lender"), a corporation organized and existing under the laws of the State of
Delaware.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Compensation Committee of the Lender
("Committee") has authorized the Borrower to purchase shares of common stock of
Rome Bancorp, Inc. ("Common Stock"), either directly from Rome Bancorp, Inc. or
in open market purchases in an amount not to exceed four percent (4%) of the
shares of Common Stock issued in connection with the transactions effected
pursuant to the Plan of Conversion and Agreement and Plan of Reorganization
adopted by Lender (the "Reorganization");
WHEREAS, the Committee has further authorized the Borrower to
borrow funds from the Lender for the purpose of financing authorized purchases
of Common Stock; and
WHEREAS, the Lender is willing to make a loan to the Borrower
for such purpose;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
The following definitions shall apply for purposes of this
Loan Agreement, except to the extent that a different meaning is plainly
indicated by the context:
SECTION 1.1 BUSINESS DAY means any day other than a Saturday,
Sunday or other day on which banks are authorized or required to close under
federal law or the laws of the State of New York.
SECTION 1.2 CODE means the Internal Revenue Code of 1986
(including the corresponding provisions of any succeeding law).
SECTION 1.3 DEFAULT means an event or condition which would
constitute an Event of Default. The determination as to whether an event or
condition would constitute an Event of Default shall be determined without
regard to any applicable requirement of notice or lapse of time.
SECTION 1.4 ERISA means the Employee Retirement Income
Security Act of 1974, as amended (including the corresponding provisions of any
succeeding law).
SECTION 1.5 EVENT OF DEFAULT means an event or condition
described in Article V.
SECTION 1.6 FISCAL YEAR means the fiscal year of Rome Bancorp,
Inc.
SECTION 1.7 INDEPENDENT COUNSEL means ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇
LLP or other counsel mutually satisfactory to both the Lender and the Borrower.
SECTION 1.8 LOAN means the loan described in section 2.1.
SECTION 1.9 LOAN DOCUMENTS means, collectively, this Loan
Agreement, the Promissory Note and the Pledge Agreement and all other documents
now or hereafter executed and delivered in connection with such documents,
including all amendments, modifications and supplements of or to all such
documents.
SECTION 1.10 PLEDGE AGREEMENT means the agreement described in
section 2.8(a).
SECTION 1.11 PRINCIPAL AMOUNT means the face amount of the
Promissory Note, determined as set forth in section 2.1(c).
SECTION 1.12 PROMISSORY NOTE means the promissory note
described in section 2.3.
SECTION 1.13 REGISTER means the register described in section
2.9.
ARTICLE II
THE LOAN; PRINCIPAL AMOUNT;
INTEREST; SECURITY; INDEMNIFICATION
SECTION 2.1 The Loan; Principal Amount.
(a) The Lender hereby agrees to lend to the Borrower such
amounts, and at such times, as shall be determined under this section 2.1;
provided, however, that in no event shall the aggregate amount lent under this
Loan Agreement from time to time exceed the aggregate amount paid by the
Borrower, exclusive of commissions, fees and other charges, to purchase a number
of shares of Common Stock not to exceed four percent (4%) of the shares of
Common Stock issued in connection with the Reorganization.
(b) Subject to the limitations of section 2.1(a), the Borrower
shall determine the amounts borrowed under this Agreement, and the times at
which such borrowings are effected. Each such determination shall be evidenced
in a writing which shall set forth the amount to be borrowed and the date on
which the Lender shall disburse such amount, and such writing shall be furnished
to the Lender by notice from the Borrower. The Lender shall disburse to the
Borrower the amount specified in each such notice on the date specified therein
or, if later, as promptly as practicable following the Lender's receipt of such
notice; provided, however, that the Lender shall have no obligation to disburse
funds pursuant to this Agreement following the
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occurrence of a Default or an Event of Default until such time as such Default
or Event of Default shall have been cured.
(c) For all purposes of this Loan Agreement, the Principal
Amount on any date shall be equal to the excess, if any, of:
(i) the aggregate amount disbursed by the Lender pursuant to
section 2.1(b) on or before such date; over
(ii) the aggregate amount of any repayments of such amounts
made before such date.
The Lender shall maintain on the Register a record of, and shall record on the
Promissory Note, the Principal Amount, any changes in the Principal Amount and
the effective date of any changes in the Principal Amount.
SECTION 2.2 INTEREST.
(a) The Borrower shall pay to the Lender interest on the
Principal Amount, for the period commencing on the date of this Loan Agreement
and continuing until the Principal Amount shall be paid in full, at the rate of
five percent (5.00%) per annum. Interest payable under this Agreement shall be
computed on the basis of a year of 360 days and months consisting of 30 days
each and actual days elapsed (including the first day but excluding the last) in
the period to which the computation relates.
(b) Except as otherwise provided in this section 2.2(b),
accrued interest on the Principal Amount shall be payable by the Borrower
quarterly in arrears commencing December 31, 2005 and continuing on the last
Business Day of each calendar quarter thereafter and upon the payment or
prepayment of such Loan. All interest on the Principal Amount shall be paid by
the Borrower in immediately available funds. The Lender shall remit to the
Borrower, at least three (3) Business Days before the end of each calendar
quarter, a statement of the interest payment due under section 2.2(a) for such
quarter; provided, however, that a delay or failure by the Lender in providing
the Borrower with such statement shall not alter the Borrower's obligation to
make such payment.
(c) Anything in this Loan Agreement or the Promissory Note to
the contrary notwithstanding, the obligation of the Borrower to make payments of
interest shall be subject to the limitation that payments of interest shall not
be required to be made to the Lender to the extent that the Lender's receipt
thereof would not be permissible under the law or laws applicable to the Lender
limiting rates of interest which may be charged or collected by the Lender. Any
such payment referred to in the preceding sentence shall be made by the Borrower
to the Lender on the earliest interest payment date or dates on which the
receipt thereof would be permissible under the laws applicable to the Lender
limiting rates of interest which may be charged or collected by the Lender. Such
deferred interest shall not bear interest.
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SECTION 2.3 PROMISSORY NOTE.
The Loan shall be evidenced by a Promissory Note of the
Borrower in substantially the form of EXHIBIT A attached hereto, dated the date
hereof, payable to the order of the Lender in the Principal Amount and otherwise
duly completed.
SECTION 2.4 PAYMENT OF TRUST LOAN.
(a) The Principal Amount of the Loan shall be repaid in annual
installments payable on the last Business Day of each Fiscal Year ending after
the date of this Agreement. The amount of each such annual installment shall be
that portion of the Principal Amount which will result in the release for
allocation to participants in the ESOP, pursuant to the Pledge Agreement, of a
cumulative fraction of the Collateral (within the meaning of the Pledge
Agreement and determined as of the last Business Day of December, 2005) equal to
the percentage set forth in column II below:
COLUMN I COLUMN II
INSTALLMENT DUE ON
LAST BUSINESS DAY OF CUMULATIVE FRACTION OF
FISCAL YEAR ENDING IN COLLATERAL RELEASED
--------------------- -------------------
2005 1/15
2006 2/15
2007 3/15
2008 4/15
2009 5/15
2010 6/15
2011 7/15
2012 8/15
2013 9/15
2014 10/15
2015 11/15
2016 12/15
2017 13/15
2018 14/15
2019 15/15
; provided, however, that the Borrower shall not be required to make any payment
of principal due to be made in any Fiscal Year to the extent that such payment
would not be deductible from federal income tax purposes for such Fiscal Year
under Section 404 of the Code. Principal payments may be deferred to the extent
that such payments would be in excess of the amount described above or otherwise
would be nondeductible for federal income tax purposes. Any payment not required
to be made pursuant to the immediately preceding sentence shall be
4
deferred to and be payable on the last day of the first Plan Year in which such
payment may be made on a tax deductible basis.
SECTION 2.5 PREPAYMENT.
The Borrower shall be entitled to prepay the Loan in whole or
in part, at any time and from time to time; provided, however, that the Borrower
shall give notice to the Lender of any such prepayment. Any such prepayment
shall be: (a) permanent and irrevocable: (b) accompanied by all accrued interest
through the date of such prepayment; (c) made without premium or penalty; and
(d) applied first to the installment of principal due and payable in the Fiscal
Year in which the prepayment is made and second in the order of the maturity of
the remaining installments thereof unless the Lender and the Borrower agree to
apply such prepayments in some order.
SECTION 2.6 METHOD OF PAYMENTS.
(a) All payments of principal, interest, other charges
(including indemnities) and other amounts payable by the Borrower hereunder
shall be made in lawful money of the United States, in immediately available
funds, to the Lender at the address specified in or pursuant to this Loan
Agreement for notices to the Lender, not later than 3:00 P.M., Eastern Standard
time, on the date on which such payment shall become due. Any such payment made
on such date but after such time shall, if the amount paid bears interest, and
except as expressly provided to the contrary herein, be deemed to have been made
on, and interest shall continue to accrue and be payable thereon until, the next
succeeding Business Day. If any payment of principal or interest becomes due on
a day other than a Business Day, such payment may be made on the next succeeding
Business Day, and when paid, such payment shall include interest to the day on
which such payment is in fact made.
(b) Notwithstanding anything to the contrary contained in this
Loan Agreement or the Promissory Note, neither the Borrower nor the Trustee
shall be obligated to make any payment, repayment or prepayment on the
Promissory Note or take or refrain from taking any other action hereunder or
under the Promissory Note if doing so would cause the ESOP to cease to be an
employee stock ownership plan within the meaning of section 4975(e)(7) of the
Code or qualified under section 401(a) of the Code or cause the Borrower to
cease to be a tax exempt trust under section 501(a) of the Code or if such act
or failure to act would cause the Borrower or the Trustee to engage in any
"prohibited transaction" as such term is defined in section 4975(c) of the Code
and the regulations promulgated thereunder which is not exempted by section
4975(c)(2) or (d) of the Code and the regulations promulgated thereunder or in
section 406 of ERISA and the regulations promulgated thereunder which is not
exempted by section 408(b) of ERISA and the regulations promulgated thereunder;
provided, however, that in each case, the Borrower or the Trustee or both, as
the case may be, may act or refrain from acting pursuant to this section 2.6(b)
on the basis of an opinion of Independent Counsel. The Borrower and the Trustee
may consult with Independent Counsel, and any opinion of such Independent
Counsel shall be full and complete authorization and protection in respect of
any action taken or suffered or omitted by it hereunder in good faith and in
accordance with such opinion of Independent Counsel. Nothing contained in this
section 2.6(b) shall be construed as imposing a duty on either the Borrower or
the Trustee to consult with Independent Counsel. Any obligation
5
of the Borrower or the Trustee to make any payment, repayment or prepayment on
the Promissory Note or to take or refrain from taking any other act hereunder or
under the Promissory Note which is excused pursuant to this section 2.6(b) shall
be considered a binding obligation of the Borrower or the Trustee, or both, as
the case may be, for the purposes of determining whether a Default or Event of
Default has occurred hereunder or under the Promissory Note and nothing in this
section 2.6(b) shall be construed as providing a defense to any remedies
otherwise available upon a Default or an Event of Default hereunder (other than
the remedy of specific performance).
SECTION 2.7 USE OF PROCEEDS OF LOAN.
The entire proceeds of the Loan shall be used solely for
acquiring shares of Common Stock, and for no other purpose whatsoever.
SECTION 2.8 SECURITY.
(a) In order to secure the due payment and performance by the
Borrower of all of its obligations under this Loan Agreement, simultaneously
with the execution and delivery of this Loan Agreement by the Borrower, the
Borrower shall:
(i) pledge to the Lender as Collateral (as defined in the
Pledge Agreement), and grant to the Lender a first priority lien on and
security interest in, the Common Stock purchased with the Principal
Amount, by the execution and delivery to the Lender of a Pledge
Agreement in the form attached hereto as EXHIBIT B; and
(ii) execute and deliver, or cause to be executed and
delivered, such other agreements, instruments and documents as the
Lender may reasonably require in order to effect the purposes of the
Pledge Agreement and this Loan Agreement.
(b) The Lender shall release from encumbrance under the Pledge
Agreement and transfer to the Borrower, as of the date on which any payment or
prepayment of the Principal Amount is made, a number of shares of Common Stock
held as Collateral pursuant to section 6.4 of the ESOP.
SECTION 2.9 REGISTRATION OF THE PROMISSORY NOTE.
(a) The Lender shall maintain a Register providing for the
registration of the Principal Amount and any stated interest and of transfer and
exchange of the Promissory Note. Transfer of the Promissory Note may be effected
only by the surrender of the old instrument and either the reissuance by the
Borrower of the old instrument to the new holder or the issuance by the Borrower
of a new instrument to the new holder. The old Promissory Note so surrendered
shall be canceled by the Lender and returned to the Borrower after such
cancellation.
(b) Any new Promissory Note issued pursuant to section 2.9(a)
shall carry the same rights to interest (unpaid and to accrue) carried by the
Promissory Note so transferred or exchanged so that there will not be any loss
or gain of interest on the note surrendered. Such new Promissory Note shall be
subject to all of the provisions and entitled to all of the benefits of this
Agreement. Prior to due presentment for registration or transfer, the Borrower
may deem
6
and treat the registered holder of any Promissory Note as the holder thereof for
purposes of payment and all other purposes. A notation shall be made on each new
Promissory Note of the amount of all payments of principal and interest
theretofore paid.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE BORROWER
The Borrower hereby represents and warrants to the Lender as
follows:
SECTION 3.1 POWER, AUTHORITY, CONSENTS.
The Borrower has the power to execute, deliver and perform
this Loan Agreement, the Promissory Note and the Pledge Agreement, all of which
have been duly authorized by all necessary and proper corporate or other action.
SECTION 3.2 DUE EXECUTION, VALIDITY, ENFORCEABILITY.
Each of the Loan Documents, including, without limitation,
this Loan Agreement, the Promissory Note and the Pledge Agreement, have been
duly executed and delivered by the Borrower; and each constitutes the valid and
legally binding obligation of the Borrower, enforceable in accordance with its
terms.
SECTION 3.3 PROPERTIES, PRIORITY OF LIENS.
The liens which have been created and granted by the Pledge
Agreement constitute valid, first liens on the properties and assets covered by
the Pledge Agreement, subject to no prior or equal lien.
SECTION 3.4 NO DEFAULTS, COMPLIANCE WITH LAWS.
The Borrower is not in default in any material respect under
any agreement, ordinance, resolution, decree, bond, note, indenture, order or
judgment to which it is a party or by which it is bound, or any other agreement
or other instrument by which any of the properties or assets owned by it is
materially affected.
SECTION 3.5 PURCHASES OF COMMON STOCK.
Upon consummation of any purchase of Common Stock by the
Borrower with the proceeds of the Loan, the Borrower shall acquire valid, legal
and marketable title to all of the Common Stock so purchased, free and clear of
any liens, other than a pledge to the Lender of the Common Stock so purchased
pursuant to the Pledge Agreement. Neither the execution and delivery of the Loan
Documents nor the performance of any obligation thereunder violates any
provision of law or conflicts with or results in a breach of or creates (with or
without the giving of notice or lapse of time, or both) a default under any
agreement to which the Borrower is a party or by which it is bound or any of its
properties is affected. No consent of any federal, state or local governmental
authority, agency or other regulatory body, the absence of which could have a
materially adverse effect on the Borrower or the Trustee, is or was required to
be obtained
7
in connection with the execution, delivery or performance of the Loan Documents
and the transactions contemplated therein or in connection therewith, including,
without limitation, with respect to the transfer of the shares of Common Stock
purchased with the proceeds of the Loan pursuant thereto.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE LENDER
The Lender hereby represents and warrants to the Borrower as
follows:
SECTION 4.1 POWER, AUTHORITY, CONSENTS.
The Lender has the power to execute, deliver and perform this
Loan Agreement, the Pledge Agreement and all documents executed by the Lender in
connection with the Loan, all of which have been duly authorized by all
necessary and proper corporate or other action. No consent, authorization or
approval or other action by any governmental authority or regulatory body, and
no notice by the Lender to, or filing by the Lender with, any governmental
authority or regulatory body is required for the due execution, delivery and
performance of this Loan Agreement.
SECTION 4.2 DUE EXECUTION, VALIDITY, ENFORCEABILITY.
This Loan Agreement and the Pledge Agreement have been duly
executed and delivered by the Lender; and each constitutes a valid and legally
binding obligation of the Lender, enforceable in accordance with its terms.
SECTION 4.3 ESOP; CONTRIBUTIONS.
The ESOP and the Borrower have been duly created, organized
and maintained by the Lender in compliance with all applicable laws, regulations
and rulings. The ESOP qualifies as an "employee stock ownership plan" as defined
in section 4975(e)(7) the Code. The ESOP provides that the Lender may make
contributions to the ESOP in an amount necessary to enable the Trustee to
amortize the Loan in accordance with the terms of the Promissory Note and this
Loan Agreement, and the Lender will make such contributions; provided, however,
that no such contributions shall be required if they would adversely affect the
qualification of the ESOP under section 401(a) of the Code.
SECTION 4.4 TRUSTEE; COMMITTEE.
The Lender has taken such action as is required to be taken by
it to duly appoint the Trustee and the members of the Committee. The Committee
constitutes the "Committee" defined in and described in the plan document for
the Employee Stock Ownership Plan of Rome Bancorp, Inc. and the Trust Agreement
by and between the Trustee and Rome Bancorp, Inc. The Lender expressly
acknowledges and agrees that this Loan Agreement, the Promissory Note and the
Pledge Agreement are being executed by the Trustee not in its individual
capacity but solely as trustee of and on behalf of the Borrower.
8
SECTION 4.5 COMPLIANCE WITH LAWS; ACTIONS.
Neither the execution and delivery by the Lender of this Loan
Agreement or any instruments required thereby, nor compliance with the terms and
provisions of any such documents by the Lender, constitutes a violation of any
provision of any law or any regulation, order, writ, injunction or decree of any
court or governmental instrumentality, or an event of default under any
agreement, to which the Lender is a party or by which the Lender is bound or to
which the Lender is subject, which violation or event of default would have a
material adverse effect on the Lender. There is no action or proceeding pending
or threatened against either of the ESOP or the Borrower before any court or
administrative agency.
ARTICLE V
EVENTS OF DEFAULT
SECTION 5.1 EVENTS OF DEFAULT UNDER LOAN AGREEMENT.
Each of the following events shall constitute an "Event of
Default" hereunder:
(a) Failure to make any payment or mandatory prepayment of
principal of the Promissory Note, or failure to make any payment of interest on
the Promissory Note, within five (5) Business Days after the date when due.
(b) Failure by the Borrower to perform or observe any term,
condition or covenant of this Loan Agreement or of any of the other Loan
Documents, including, without limitation, the Promissory Note and the Pledge
Agreement, PROVIDED, HOWEVER, that such failure is not cured by the Borrower
within five (5) Business Days after notice of such failure is provided to the
Borrower by the Lender.
(c) Any representation or warranty made in writing to the
Lender in any of the Loan Documents or any certificate, statement or report made
or delivered in compliance with this Loan Agreement, shall have been false or
misleading in any material respect when made or delivered.
SECTION 5.2 LENDER'S RIGHTS UPON EVENT OF DEFAULT.
If an Event of Default under this Loan Agreement shall occur
and be continuing, the Lender shall have no rights to assets of the Borrower
other than: (a) contributions (other than contributions of Common Stock) that
are made by the Lender to enable the Borrower to meet its obligations pursuant
to this Loan Agreement and earnings attributable to the investment of such
contributions and (b) "Eligible Collateral" (as defined in the Pledge
Agreement); provided, however, that: (i) the value of the Borrower's assets
transferred to the Lender following an Event of Default in satisfaction of the
due and unpaid amount of the Loan shall not exceed the amount in default
(without regard to amounts owing solely as a result of any acceleration of the
Loan); (ii) the Borrower's assets shall be transferred to the Lender following
an Event of Default only to the extent of the failure of the Borrower to meet
the payment schedule of the Loan; and (iii) all rights of the Lender to the
Common Stock purchased with the proceeds of the Loan covered by
9
the Pledge Agreement following an Event of Default shall be governed by the
terms of the Pledge Agreement.
ARTICLE VI
MISCELLANEOUS PROVISIONS
SECTION 6.1 PAYMENTS DUE TO THE LENDER.
If any amount is payable by the Borrower to the Lender
pursuant to any indemnity obligation contained herein, then the Borrower shall
pay, at the time or times provided therefor, any such amount and shall indemnify
the Lender against and hold it harmless from any loss or damage resulting from
or arising out of the nonpayment or delay in payment of any such amount. If any
amounts as to which the Borrower has so indemnified the Lender hereunder shall
be assessed or levied against the Lender, the Lender may notify the Borrower and
make immediate payment thereof, together with interest or penalties in
connection therewith, and shall thereupon be entitled to and shall receive
immediate reimbursement therefor from the Borrower, together with interest on
each such amount as provided in section 2.2(c). Notwithstanding any other
provision contained in this Loan Agreement, the covenants and agreements of the
Borrower contained in this section 6.1 shall survive: (a) payment of the
Promissory Note and (b) termination of this Loan Agreement.
SECTION 6.2 PAYMENTS.
All payments hereunder and under the Promissory Note shall be
made without set-off or counterclaim and in such amounts as may be necessary in
order that all such payments shall not be less than the amounts otherwise
specified to be paid under this Loan Agreement and the Promissory Note, subject
to any applicable tax withholding requirements. Upon payment in full of the
Promissory Note, the Lender shall ▇▇▇▇ such Promissory Note "Paid" and return it
to the Borrower.
SECTION 6.3 SURVIVAL.
All agreements, representations and warranties made herein
shall survive the delivery of this Loan Agreement and the Promissory Note.
SECTION 6.4 MODIFICATIONS, CONSENTS AND WAIVERS; ENTIRE
AGREEMENT.
No modification, amendment or waiver of or with respect to any
provision of this Loan Agreement, the Promissory Note, the Pledge Agreement, or
any of the other Loan Documents, nor consent to any departure from any of the
terms or conditions thereof, shall in any event be effective unless it shall be
in writing and signed by the party against whom enforcement thereof is sought.
Any such waiver or consent shall be effective only in the specific instance and
for the purpose for which given. No consent to or demand on a party in any case
shall, of itself, entitle it to any other or further notice or demand in similar
or other circumstances. This Loan Agreement embodies the entire agreement and
understanding between the Lender and the Borrower and supersedes all prior
agreements and understandings relating to
10
the subject matter hereof; provided, however, that this Agreement shall have no
effect upon the Loan Agreement between Borrower and Lender dated as of September
14, 1999.
SECTION 6.5 REMEDIES CUMULATIVE.
Each and every right granted to the Lender hereunder or under
any other document delivered hereunder or in connection herewith, or allowed it
by law or equity, shall be cumulative and may be exercised from time to time. No
failure on the part of the Lender or the holder of the Promissory Note to
exercise, and no delay in exercising, any right shall operate as a waiver
thereof, nor shall any single or partial exercise of any right preclude any
other or future exercise thereof or the exercise of any other right. The due
payment and performance of the obligations under the Loan Documents shall be
without regard to any counterclaim, right of offset or any other claim
whatsoever which the Borrower may have against the Lender and without regard to
any other obligation of any nature whatsoever which the Lender may have to the
Borrower, and no such counterclaim or offset shall be asserted by the Borrower
in any action, suit or proceeding instituted by the Lender for payment or
performance of such obligations.
SECTION 6.6 FURTHER ASSURANCES; COMPLIANCE WITH COVENANTS.
At any time and from time to time, upon the request of the
Lender, the Borrower shall execute, deliver and acknowledge or cause to be
executed, delivered and acknowledged, such further documents and instruments and
do such other acts and things as the Lender may reasonably request to fully
effect the terms of this Loan Agreement, the Promissory Note, the Pledge
Agreement, the other Loan Documents and any other agreements related to the
Loan.
SECTION 6.7 NOTICES.
Except as otherwise specifically provided for herein, all
notices, requests, reports and other communications pursuant to this Loan
Agreement shall be in writing, either by letter (delivered by hand or commercial
messenger service or sent by registered or certified mail, return receipt
requested, except for routine reports delivered in compliance with Article VI
hereof which may be sent by ordinary first-class mail) or telex or facsimile,
addressed as follows:
(a) If to the Borrower:
Employee Stock Ownership Plan Trust
of Rome Bancorp, Inc.
c/o Rome Bancorp, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Chief Executive Officer
with copies to:
RSGroup Trust Company
c/o Retirement System Consultants
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
11
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Wood LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention: V. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
(b) If to the Lender:
Rome Bancorp. Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Chief Executive Officer
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention: V. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Any notice, request or communication hereunder shall be deemed to have
been given on the day on which it is delivered by hand or by commercial
messenger service, or sent by telex or facsimile, to such party at its address
specified above, or, if sent by mail, on the third Business Day after the day
deposited in the mail, postage prepaid, addressed as aforesaid. Any party may
change the person or address to whom or which notices are to be given hereunder,
by notice duly given hereunder; provided, however, that any such notice shall be
deemed to have been given only when actually received by the party to whom it is
addressed.
SECTION 6.8 COUNTERPARTS.
This Loan Agreement may be signed in any number of
counterparts which, when taken together, shall constitute one and the same
document.
SECTION 6.9 CONSTRUCTION; GOVERNING LAW.
The headings used in the table of contents and in this Loan
Agreement are for convenience only and shall not be deemed to constitute a part
hereof. All uses herein of any gender or of singular or plural terms shall be
deemed to include uses of the other genders or plural or singular terms, as the
context may require. All references in this Loan Agreement to an Article or
section shall be to an Article or section of this Loan Agreement, unless
otherwise specified. This Loan Agreement, the Promissory Note, the Pledge
Agreement and the other Loan Documents shall be governed by, and construed and
interpreted in accordance with, the laws of the State of New York. It is
intended that the transactions contemplated by this Loan Agreement constitute an
"exempt loan" within the meaning of Treasury Regulation ss.54.4975-7(b)(1)(iii)
and Department of Labor Regulation ss.2550.408b-3, and the provisions hereof
shall be construed and enforced in such manner as shall be necessary to give
effect to such intent.
12
SECTION 6.10 SEVERABILITY.
Wherever possible, each provision of this Loan Agreement shall
be interpreted in such manner as to be effective and valid under applicable law;
however, the provisions of this Loan Agreement are severable, and if any clause
or provision hereof shall be held invalid or unenforceable in whole or in part
in any jurisdiction, then such invalidity or unenforceability shall affect only
such clause or provision, or part thereof, in such jurisdiction and shall not in
any manner affect such clause or provision in any other jurisdiction, or any
other clause or provision in this Loan Agreement in any jurisdiction. Each of
the covenants, agreements and conditions contained in this Loan Agreement is
independent, and compliance by a party with any of them shall not excuse
non-compliance by such party with any other. The Borrower shall not take any
action the effect of which shall constitute a breach or violation of any
provision of this Loan Agreement.
SECTION 6.11 BINDING EFFECT; NO ASSIGNMENT OR DELEGATION.
This Loan Agreement shall be binding upon and inure to the
benefit of the Borrower and its successors and the Lender and its successors and
assigns. The rights and obligations of the Borrower under this Agreement shall
not be assigned or delegated without the prior written consent of the Lender,
and any purported assignment or delegation without such consent shall be void.
13
IN WITNESS WHEREOF, the parties hereto have caused this Loan
Agreement to be duly executed to be effective as of the date first above
written.
EMPLOYEE STOCK OWNERSHIP PLAN TRUST
OF ROME BANCORP, INC.
By RSGROUP TRUST COMPANY, as Trustee
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President, Counsel
and Secretary
Date: ▇▇▇▇▇ ▇▇, ▇▇▇▇
▇▇▇▇ BANCORP, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Treasurer and Chief Financial Officer
Date: March 24, 2005
EXHIBIT A
PROMISSORY NOTE
---------------
For the "Principal Amount," Rome, New York
as defined below March 24, 2005
FOR VALUE RECEIVED, the undersigned, Employee Stock Ownership
Plan Trust of Rome Bancorp, Inc. ("Borrower"), acting by and through its
Trustee, RSGroup Trust Company ("Trustee"), hereby promises to pay to the order
of Rome Bancorp, Inc. ("Lender") the "Principal Amount," as determined under the
Loan Agreement made and entered into between the Borrower and the Lender
effective as of March 24, 2005 ("Loan Agreement") pursuant to which this
Promissory Note is issued, payable in annual installments each of which shall be
that portion of the principal amount of the loan which will result in the
release for allocation to participants in the Employee Stock Ownership Plan of
Rome Bancorp., Inc. (the "ESOP") of a cumulative fraction of the collateral
(valued at December 31, 2005) equal to 1/15 as of the last business day of
December, 2005 and increased by 1/15 as of each succeeding December, to 15/15 on
the last business day of December, 2019. Principal payments may be deferred to
the extent that such payments would be in excess of the amount described above
or otherwise would be nondeductible for federal income tax purposes. Any payment
not required to be made pursuant to the immediately preceding sentence shall be
deferred to and be payable on the last day of the first Plan Year in which such
payment may be made on a tax deductible basis.
This Promissory Note shall bear interest at the rate per annum
set forth or established under the Loan Agreement, such interest to be payable
quarterly in arrears, commencing on December 31, 2005 and thereafter on the last
Business Day of each calendar quarter and upon payment or prepayment of this
Promissory Note.
Anything herein to the contrary notwithstanding, the
obligation of the Borrower to make payments of interest shall be subject to the
limitation that payments of interest shall not be required to be made to the
Lender to the extent that the Lender's receipt thereof would not be permissible
under the law or laws applicable to the Lender limiting rates of interest which
may be charged or collected by the Lender. Any such payments of interest which
are not made as a result of the limitation referred to in the preceding sentence
shall be made by the Borrower to the Lender on the earliest interest payment
date or dates on which the receipt thereof would be permissible under the laws
applicable to the Lender limiting rates of interest which may be charged or
collected by the Lender. Such deferred interest shall not bear interest.
Payments of both principal and interest on this Promissory
Note are to be made at the principal office of the Lender at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ or such other place as the holder hereof shall
designate to the Borrower in writing, in lawful money of the United States of
America in immediately available funds.
A-1
Failure to make any payment of principal on this Promissory
Note, or failure to make any payment of interest on this Promissory Note, not
later than five (5) Business Days after the date when due, shall constitute a
default hereunder, whereupon the principal amount of and accrued interest on
this Promissory Note shall immediately become due and payable in accordance with
the terms of the Loan Agreement.
This Promissory Note is subject, in all respects, to the terms
and provisions of the Loan Agreement, which is incorporated herein by this
reference, and is secured by a Pledge Agreement between the Borrower and the
Lender of even date herewith and is entitled to the benefits thereof.
EMPLOYEE STOCK OWNERSHIP PLAN TRUST
OF ROME BANCORP, INC.
BY: RSGROUP TRUST COMPANY, AS TRUSTEE
AND NOT IN ANY OTHER CAPACITY
BY: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
TITLE: Executive Vice President, Counsel
and Secretary
A-2
EXHIBIT B
PLEDGE AGREEMENT
----------------
This PLEDGE AGREEMENT ("Pledge Agreement") is made effective
as of the 24th day of March, 2005, by and between the EMPLOYEE STOCK OWNERSHIP
PLAN TRUST OF ROME BANCORP, INC., acting by and through its Trustee, RSGroup
Trust Company, a trust company organized under the laws of the State of Maine
("Pledgor"), and Rome Bancorp, Inc., a corporation organized and existing under
the laws of the State of Delaware ("Pledgee").
W I T N E S S E T H :
WHEREAS, this Pledge Agreement is being executed and delivered
to the Pledgee pursuant to the terms of a Loan Agreement of even date herewith
("Loan Agreement"), by and between the Pledgor and the Pledgee;
NOW, THEREFORE, in consideration of the mutual agreements
contained herein and in the Loan Agreement, the parties hereto do hereby
covenant and agree as follows:
SECTION 1. DEFINITIONS. The following definitions shall apply
for purposes of this Pledge Agreement, except to the extent that a different
meaning is plainly indicated by the context; all capitalized terms used but not
defined herein shall have the respective meanings assigned to them in the Loan
Agreement:
(a) COLLATERAL shall mean the Pledged Shares and, subject to
section 5 hereof, and to the extent permitted by applicable law, all
rights with respect thereto, and all proceeds of such Pledged Shares
and rights.
(b) EVENT OF DEFAULT shall mean an event so defined in the
Loan Agreement.
(c) LIABILITIES shall mean all the obligations of the Pledgor
to the Pledgee, howsoever created, arising or evidenced, whether direct
or indirect, absolute or contingent, now or hereafter existing, or due
or to become due, under the Loan Agreement and the Promissory Note.
(d) PLEDGED SHARES shall mean all the shares of Common Stock
of Rome Bancorp, Inc. purchased by the Pledgor with the proceeds of the
loan made by the Pledgee to the Pledgor pursuant to the Loan Agreement,
but excluding any such shares previously released pursuant to section
4.
SECTION 2. PLEDGE. To secure the payment of and performance of
all the Liabilities, the Pledgor hereby pledges to the Pledgee, and grants to
the Pledgee a security interest in and lien upon, the Collateral.
B-1
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE PLEDGOR. The
Pledgor represents, warrants, and covenants to the Pledgee as follows:
(a) to the actual knowledge of the Trustee, the execution,
delivery and performance of this Pledge Agreement and the pledging of
the Collateral hereunder do not and will not conflict with, result in a
violation of, or constitute a default under any agreement binding upon
the Pledgor;
(b) the Pledged Shares are and will continue to be owned by
the Pledgor free and clear of any liens or rights of any other person
except the lien hereunder and under the Loan Agreement in favor of the
Pledgee, and the security interest of the Pledgee in the Pledged Shares
and the proceeds thereof is and will continue to be prior to and senior
to the rights of all others;
(c) to the actual knowledge of the Trustee, this Pledge
Agreement is the legal, valid, binding and enforceable obligation of
the Pledgor in accordance with its terms;
(d) the Pledgor shall, from time to time, upon request of the
Pledgee, promptly deliver to the Pledgee such stock powers, proxies,
and similar documents, satisfactory in form and substance to the
Pledgee, with respect to the Collateral as the Pledgee may reasonably
request; and
(e) subject to the first sentence of section 4(b), the Pledgor
shall not, so long as any Liabilities are outstanding, sell, assign,
exchange, pledge or otherwise transfer or encumber any of its rights in
and to any of the Collateral.
SECTION 4. ELIGIBLE COLLATERAL.
(a) As used herein the term "Eligible Collateral" shall mean
that amount of Collateral which has an aggregate fair market value equal to the
amount by which the Pledgor is in default (without regard to any amounts owing
solely as the result of an acceleration of the Loan Agreement) or such lesser
amount of Collateral as may be required pursuant to section 12 of this Pledge
Agreement.
(b) The Pledged Shares shall be released from this Pledge
Agreement in a manner conforming to the requirements of Treasury Regulations
Section 54.4975-7(b)(8), as the same may be from time to time amended or
supplemented, and section 6.4(a) of the ESOP. Subject to such Regulations, the
Pledgee may from time to time, after any Default or Event of Default, and
without prior notice to the Pledgor, transfer all or any part of the Eligible
Collateral into the name of the Pledgee or its nominee, with or without
disclosing that such Eligible Collateral is subject to any rights of the Pledgor
and may from time to time, whether before or after any of the Liabilities shall
become due and payable, without notice to the Pledgor, take all or any of the
following actions: (i) notify the parties obligated on any of the Eligible
Collateral to make payment to the Pledgee of any amounts due or to become due
thereunder, (ii) release or exchange all or any part of the Eligible Collateral,
or compromise or extend or renew for any period (whether or not longer than the
original period) any obligations of any nature of any party with respect
thereto, and (iii) take control of any proceeds of the Eligible Collateral.
B-2
SECTION 5. DELIVERY.
(a) The Pledgor shall deliver to the Pledgee upon execution of this
Pledge Agreement an assignment by the Pledgor of all the Pledgor's rights to and
interest in the Pledged Shares.
(b) So long as no Default or Event of Default shall have occurred and
be continuing, (i) the Pledgor shall be entitled to exercise any and all voting
and other rights pertaining to the Collateral or any part thereof for any
purpose not inconsistent with the terms of this Pledge Agreement, and (ii) the
Pledgor shall be entitled to receive any and all cash dividends or other
distributions paid in respect of the Collateral.
SECTION 6. EVENTS OF DEFAULT.
(a) If a Default or an Event of Default shall be existing, in
addition to the rights it may have under the Loan Agreement, the Promissory
Note, and this Pledge Agreement, or by virtue of any other instrument, (i) the
Pledgee may exercise, with respect to the Eligible Collateral, from time to time
any rights and remedies available to it under the Uniform Commercial Code as in
effect from time to time in the State of New York or otherwise available to it
and (ii) the Pledgee shall have the right, for and in the name, place and stead
of the Pledgor, to execute endorsements, assignments, stock powers and other
instruments of conveyance or transfer with respect to all or any of the Eligible
Collateral. Written notification of intended disposition of any of the Eligible
Collateral shall be given by the Pledgee to the Pledgor at least three (3)
Business Days before such disposition. Subject to section 13 below, any proceeds
of any disposition of Eligible Collateral may be applied by the Pledgee to the
payment of expenses in connection with the Eligible Collateral, including,
without limitation, reasonable attorneys' fees and legal expenses, and any
balance of such proceeds may be applied by the Pledgee toward the payment of
such of the Liabilities as are in Default, and in such order of application, as
the Pledgee may from time to time elect. No action of the Pledgee permitted
hereunder shall impair or affect its rights in and to the Eligible Collateral.
All rights and remedies of the Pledgee expressed hereunder are in addition to
all other rights and remedies possessed by it, including, without limitation,
those contained in the documents referred to in the definition of Liabilities in
section 1 hereof.
(b) In any sale of any of the Eligible Collateral after a
Default or an Event of Default shall have occurred, the Pledgee is hereby
authorized to comply with any limitation or restriction in connection with such
sale as it may be advised by counsel is necessary in order to avoid any
violation of applicable law (including, without limitation, compliance with such
procedures as may restrict the number of prospective bidders and purchasers or
further restrict such prospective bidders or purchasers to persons who will
represent and agree that they are purchasing for their own account for
investment and not with a view to the distribution or resale of such Eligible
Collateral), or in order to obtain such required approval of the sale or of the
purchase by any governmental regulatory authority or official, and the Pledgor
further agrees that such compliance shall not result in such sale's being
considered or deemed not to have been made in a commercially reasonable manner,
nor shall the Pledgee be liable or accountable to the Pledgor for any discount
allowed by reason of the fact that such Eligible Collateral is sold in
compliance with any such limitation or restriction.
B-3
SECTION 7. PAYMENT IN FULL. Upon the payment in full of all
outstanding Liabilities, this Pledge Agreement shall terminate and the Pledgee
shall forthwith assign, transfer and deliver to the Pledgor, against receipt and
without recourse to the Pledgee, all Collateral then held by the Pledgee
pursuant to this Pledge Agreement.
SECTION 8. NO WAIVER. No failure or delay on the part of the
Pledgee in exercising any right or remedy hereunder or under any other document
which confers or grants any rights in the Pledgee in respect of the Liabilities
shall operate as a waiver thereof nor shall any single or partial exercise of
any such right or remedy preclude any other or further exercise thereof or the
exercise of any other right or remedy of the Pledgee.
SECTION 9. BINDING EFFECT; NO ASSIGNMENT OR DELEGATION. This
Pledge Agreement shall be binding upon and inure to the benefit of the Pledgor,
the Pledgee and their respective successors and assigns, except that the Pledgor
may not assign or transfer its rights hereunder without the prior written
consent of the Pledgee (which consent shall not unreasonably be withheld). Each
duty or obligation of the Pledgor to the Pledgee pursuant to the provisions of
this Pledge Agreement shall be performed in favor of any person or entity
designated by the Pledgee, and any duty or obligation of the Pledgee to the
Pledgor may be performed by any other person or entity designated by the
Pledgee.
SECTION 10. GOVERNING LAW. This Pledge Agreement shall be
governed by and construed in accordance with the laws of the State of New York
applicable to agreements to be performed wholly within the State of New York.
SECTION 11. NOTICES. All notices, requests, instructions or
documents hereunder shall be in writing and delivered by hand or commercial
messenger service or sent by United States mail, registered or certified, return
receipt requested, with proper postage prepaid, or by telex or facsimile,
addressed as follows:
(a) If to the Pledgee:
Rome Bancorp, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Chief Executive Officer
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Wood LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention: V. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
B-4
(b) If to the Pledgor:
Employee Stock Ownership Plan Trust
Rome Bancorp, Inc.
c/o Rome Bancorp, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Chief Executive Officer
with copies to:
RSGroup Trust Company
c/o Retirement Systems Consultants
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Wood LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention: V. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Any notice, request or communication hereunder shall be deemed to have been
given on the day on which it is delivered by hand or by commercial messenger
service, or sent by telex or facsimile, to such party at its address specified
above, or, if sent by mail, on the third Business Day after the day deposited in
the mail, postage prepaid, addressed as aforesaid. Any party may change the
person or address to whom or which notices are to be given hereunder, by notice
duly given hereunder; provided, however, that any such notice shall be deemed to
have been given only when actually received by the party to whom it is
addressed.
SECTION 12. INTERPRETATION. Wherever possible each provision
of this Pledge Agreement shall be interpreted in such manner as to be effective
and valid under applicable law, but if any provision hereof shall be prohibited
by or invalid under such law, such provisions shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions hereof.
SECTION 13. CONSTRUCTION. All provisions hereof shall be
construed so as to maintain (a) the ESOP as a qualified leveraged employee stock
ownership plan under section 401(a) and 4975(e)(7) of the Internal Revenue Code
of 1986 (the "Code"), (b) the Trust as exempt from taxation under section 501(a)
of the Code and (c) the Trust Loan as an exempt loan under section 54.4975-7(b)
of the Treasury Regulations and as described in Department of Labor Regulation
section 2550.408b-3.
B-5
IN WITNESS WHEREOF, this Pledge Agreement has been duly
executed by the parties hereto to be effective as of the day and year first
above written.
EMPLOYEE STOCK OWNERSHIP PLAN TRUST OF
ROME BANCORP, INC.
BY: RSGROUP TRUST COMPANY, AS TRUSTEE
AND NOT IN ANY OTHER CAPACITY
BY: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
TITLE: Executive Vice President,
Counsel and Secretary
ROME BANCORP, INC.
BY: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
TITLE: Treasurer and Chief Financial
Officer
B-6
EXHIBIT C
FORM OF ASSIGNMENT
------------------
In consideration of the loan made by Rome Bancorp, Inc.
("Lender") to the Employee Stock Ownership Plan Trust of Rome Bancorp, Inc.
("Borrower") pursuant to the Loan Agreement effective as of March 24, 2005
between the Lender and the Borrower ("Loan Agreement") and pursuant to the
Pledge Agreement between the Lender and the Borrower of even date herewith
pertaining thereto, subject to the terms of the Loan Agreement, the undersigned
Borrower hereby transfers, assigns and conveys to Lender all its right, title
and interest in and to those certain shares of common stock of the Lender which
it shall purchase with the proceeds of the loan made pursuant to the Loan
Agreement, and agrees to transfer and endorse to Lender the certificates
representing such shares as and when required pursuant to the Loan Agreement or
Pledge Agreement.
EMPLOYEE STOCK OWNERSHIP PLAN TRUST OF
ROME BANCORP, INC.
BY: RSGROUP TRUST COMPANY, AS TRUSTEE AND
NOT IN ANY OTHER CAPACITY
BY: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
TITLE: Executive Vice President, Counsel
and Secretary
MARCH 23, 2005
C-1