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EXHIBIT NO. 10.5
SECOND AMENDMENT TO LOAN AGREEMENT
This Second Amendment to Loan Agreement as amended, dated as of
September 29, 2000, (the " Second Amendment") is entered into by and between
BancFirst Ohio Corp., an Ohio corporation (hereinafter called "Borrower"), and
LaSalle Bank N.A., a National Banking Association (hereinafter called "Lender").
WHEREAS, pursuant to that certain Loan Agreement dated as of August 14,
1996 (the "Loan Agreement"), Lender extended a loan in the amount of FIFTEEN
MILLION and 00/100 Dollars ($15,000,000.00), (the "Loan") to Borrower for the
purpose of funding the acquisition of County Savings Bank (hereinafter called
"County") and, as evidence thereof, Borrower also executed a Term Promissory
Note dated of even date with the Loan Agreement (the "Note").
WHEREAS, as security for the Loan, Borrower assigned, transferred,
pledged and delivered to Lender 100% of all of the issued and outstanding shares
of common stock in its subsidiary, First National Bank of Zanesville ("First
National"), and, as evidence thereof, Borrower executed a Pledge Agreement dated
as of August 14, 1996 (the "Pledge Agreement");
WHEREAS, in 1998 Borrower and Lender entered into the First Amendment
to Loan Agreement dated April 30, 1998, the First Amendment to Term Promissory
Note dated as of April 30, 1998, and the First Amendment to Pledge Agreement
dated as of April 30, 1998;
WHEREAS, the Borrower has requested Lender to extend a loan in the
amount of Eight Million and no/100s Dollars ($8,000,000.00) for the purpose of
refinancing Borrower's outstanding indebtedness in the sum of Three Million
Seven Hundred Fifty Thousand Dollars and no/100s Dollars ($3,750,000.00) and
Four Million Two Hundred Fifty Thousand Dollars and no/l00s Dollars
($4,250,000.00) to be contributed as additional paid in capital to First
National.
WHEREAS, Borrower and Lender agree to modify certain covenants
contained in the Loan Agreement as amended and the Term Promissory Note as
amended as more fully described herein.
NOW THEREFORE, in consideration of the premises set forth above and the
mutual covenants and promises contained in this Second Amendment to Loan
Agreement and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Borrower and Lender hereby agree,
effective as of the date hereof and subject to the conditions set forth herein,
to amend the Loan Agreement as amended as follows:
1.1 Section 1.A. Section 1.A of the Loan Agreement as amended is hereby deleted
and amended and restated in its entirety as follows:
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1.A. Subject to the terms and conditions of the Loan Agreement as
amended, theLender agrees to lend to the Borrower and the Borrower
agrees to borrow from the Lender the sum of Eight Million and no/100s
Dollars ($8,000,000.00) (hereinafter called the "Loan"). The Loan shall
be evidenced by a Term Promissory Note executed by the Borrower in the
form attached hereto as Exhibit "A". The funding of the Note by the
Lender is sometimes hereinafter referred to as the "Closing".
1.2 Section 3 Sections 3.A and 3.B of the Loan Agreement as amended are hereby
amended by deleting Section 3 Titled "Repayment, Loan Borrowing Procedures, and
Application of Payments" and replacing it with the following:
3. Repayment, Interest Rate, Selection of Interest Rate,
Application of Payments
A. Repayment
(a) Interest only shall be payable quarterly, commencing on
December 31, 2000 and on the last day of each quarterly period
thereafter.
(b) Six annual principal payments shall commence one (1) year from
the date hereof, with the first principal payment being due
September 30, 2001 in the sum of One Million and No/100
Dollars ($1,000,000.00), plus accrued interest, and One
Million and No/100s Dollars ($1,000,000.00), plus accrued
interest, on September 30, 2002, September 30, 2003, September
30, 2004, September 30, 2005, and September 30, 2006.
(c) The final payment of principal shall be payable on September
30, 2007, in the sum of Two Million and No/100 Dollars
($2,000,000.00), plus accrued interest.
B. Interest Rate
The outstanding principal hereunder shall bear interest at either of the
following rates as selected by Maker (see Selection of Interest Rate) from time
to time (the "Interest Rate"):
(a) Prime Rate. The outstanding principal hereunder may bear
interest at the Prime Rate per annum, floating. As used
herein, the phrase "Prime Rate" shall mean the rate in effect
from time to time as fixed by the management of the Bank for
the guidance of its loan officers and called its Prime Rate,
whether or not such rate is otherwise published. The effective
date of any change in the Prime Rate shall for purposes hereof
be the date the rate is changed by the Bank. The Bank shall
not be obligated to give notice of any change in the Prime
Rate. The use of the term "Prime Rate" herein is not intended
nor does it imply that said rate of interest is a preferred
rate of interest or one which is offered by the Bank to its
most creditworthy customers.
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(b) LIBOR. The outstanding principal hereunder may bear interest
at LIBOR (as defined below) per annum plus one and thirty-five
one hundredths percent (1.35%) (the "LIBOR Rate"). For
purposes hereof, LIBOR means, for each Interest Period, a rate
of interest equal to the rate per annum as conclusively
determined by the Bank in good faith (rounded upward, if
necessary, to the nearest 1/100th of 1%) at which United
States dollar deposits in an amount equal to the principal
amount of the applicable LIBOR Loan (as defined below)
outstanding hereunder and for a period equal to the relevant
"Interest Period" are offered generally to the Bank in the
London Interbank Market quoted at 11:00 a.m., London time, two
banking days prior to the commencement of each Interest
Period, such rate to remain fixed for such Interest Period.
"INTEREST PERIOD" shall mean a period (i) commencing (A) with
respect to the conversion of all or a portion of a Prime Loan
to a LIBOR Loan, on the business day specified by Borrower in
writing to the Bank or (B) with respect to the continuation as
a LIBOR Loan of all or a portion of a then existing LIBOR Loan
after the expiration of the LIBOR Interest Period applicable
to such existing LIBOR Loan, and (ii) ending 30, 60 or 90 days
thereafter as selected by the Borrower pursuant to a written
notice to the Bank; provided, however, that
(1) if any LIBOR Interest Period would otherwise end on a day
that is not a business day, such LIBOR Interest Period shall
end on the next succeeding business day, unless the result of
such extension would be to carry such LIBOR Interest Period
into another calendar month, in which event such LIBOR
Interest Period shall end on the immediately preceding
business day; and
(2) any LIBOR Interest Period with respect to a LIBOR Loan
that would otherwise extend beyond the Maturity Date shall end
on the Maturity Date; and
(3) any LIBOR Interest Period which begins on the last
business day of the calendar month (or on a day for which
there is no numerically corresponding day in the calendar
month at the end of such LIBOR Interest Period) shall, subject
to Paragraph 2 above end on the last business day of a
calendar month; and
(4) if for any reason the Maker shall fail to timely select an
Interest Rate in the manner described below, then it shall be
deemed to have selected the LIBOR Rate. Interest on LIBOR
Loans shall be payable on the last day of each quarterly
period commencing on the 31st day of December, 2000, and
continuing on the last day of each quarterly period
thereafter, at maturity, after maturity on demand, and on the
date of any principal payment herein on the amount paid. Maker
further hereby promises to pay to the order of Bank, on
demand, interest on the unpaid principal amount hereof after
maturity (whether by acceleration, or otherwise) at the rate
set forth below under "Default Interest".
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"Prime Loan(s)" means, at any time, that portion of the
principal which Maker selects with proper notice to Bank to
bear interest at the Prime Rate.
"LIBOR Loan(s)" means, at any time, that portion of the
principal which Maker selects with proper notice to Bank to
bear interest at the LIBOR Rate.
The Bank's determination of LIBOR as provided above shall be
conclusive, absent manifest error. Furthermore, if the Bank
determines in good faith (which determination shall be
presumed to be in good faith and, absent manifest error, shall
be conclusive), prior to the commencement of any Interest
Period that (a) U.S. dollar deposits of sufficient amount and
maturity for funding any LIBOR Loan are not available to the
Bank in the London Interbank Eurodollar market in the ordinary
course of business, or (b) by reason of circumstances
affecting the London Interbank Eurodollar market, adequate and
fair means do not exist for ascertaining the rate of interest
to be applicable to the relevant LIBOR Loan, the Bank shall
promptly notify the Maker and such LIBOR Loan shall
automatically convert on the last day of the then-current
Interest Period to a loan bearing interest at the Prime Rate.
If, for any reason, any LIBOR Loan is paid prior to the last
business day of its then current Interest Period, the Maker
agrees to indemnify the Bank against any loss (including any
loss on redeployment of the funds repaid), cost or expense
incurred by the Bank as a result of such prepayment.
C. Selection of Interest Rate. An authorized officer of Maker shall give bank
irrevocable telephonic notice confirmed in writing no later than 11:00 a.m.
Chicago time on the business day prior to the expiration of the then current
Interest Period of its selection of an Interest Rate. In the event Bank does not
receive such notice in a timely fashion, then the Maker shall be deemed to have
selected the LIBOR Rate for the next succeeding Interest Period.
D. Application of Payments. All payments received on account of the indebtedness
evidenced by this Note shall be applied to the payment of the following
obligations in the order set forth (a) to indebtedness (including accrued and
unpaid interest due thereon) secured by any collateral or security agreement
entered into in connection with this Note other than the principal balance
evidenced hereby and the interest due thereon; (b) to interest at the rate set
forth above; (c) to payment of late charges, enforcement costs and other
expenses; (d) to interest at the Default Rate; and (e) the remainder, if any,
shall be applied to the principal balance remaining unpaid hereunder.
1.3 Section 6E. Section 6E of the Loan Agreement as amended is hereby deleted
and amended and restated in its entirety as follows:
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6E. The Borrower shall maintain, on a consolidated basis, all
calculated quarterly (with the exception of minimum annualized
return on average assets which will be calculated annually as
of December 31 of each year), the following:
(a) Minimum ratio of total risk-based capital to risk
adjusted assets of Ten Percent (10%);
(b) Minimum ratio of Tier 1 capital to risk adjusted
assets of Six Percent (6%);
(c) Minimum ratio of Tier 1 capital to average assets
(leverage ratio) of Five Percent (5%);
(d) Maximum non-performing loans to equity capital of
Twenty-Five Percent (25%);
(e) Minimum loan loss reserve to non-performing loans of
Seventy-Five Percent (75%);
(f) Minimum annualized return on average assets of 0.80%.
SECTION 2. REPRESENTATIONS AND WARRANTIES
To induce Lender to amend the Loan Agreement, as amended, Borrower
represents and warrants to Lender that:
2.1 Compliance with Loan Agreement. On the date hereof, Borrower is in
compliance of all of the terms and provisions set forth in the Loan Agreement as
amended and no Default or Event of Default has occurred which has not been
waived or amended herein.
2.2 Representations and Warranties. On the date hereof, the representations and
warranties set forth in the Loan Agreement as amended are true and correct with
the same effect as though such representations and warranties had been made on
the date hereof, except to the extent that such representations and warranties
expressly relate to an earlier date.
2.3 Corporate Authority of Borrower. Borrower has full power and authority to
enter into this Second Amendment, all of which has been duly authorized by all
proper and necessary corporate action. Except for consents which have been
obtained by Borrower, no consent or approval of stockholders or of any public
authority or regulatory body or any other person or entity is required as a
condition to the validity or enforceability of this Second Amendment.
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2.4 Second Amendment as Binding Agreement. This Second Amendment constitutes the
valid and legally binding obligation of Borrower, fully enforceable against
Borrower, in accordance with its terms.
2.5 No Conflicting Agreements. The execution and performance by Borrower of this
Second Amendment will not (i) violate any provision of law, any order of any
court or other agency of government, or the Articles of Incorporation or By-Laws
of Borrower, or (ii) violate any indenture, contract, agreement or other
instrument to which Borrower is a party, or by which its property is bound, or
be in conflict with, result in a breach of or constitute (with due notice and/or
lapse of time) a default under, any such indenture, contract, agreement or other
instrument or result in the creation or imposition of any lien, charge or
encumbrance of any nature whatsoever upon any of the property or assets of
Borrower.
SECTION 3. CONDITIONS PRECEDENT
The agreement by Lender to amend the Loan Agreement as amended is
subject to the following conditions precedent:
3.1 Execution of Documents. Borrower shall have executed and delivered to Lender
the Second Amendment to Loan Agreement and the Term Promissory Note dated of
even date herewith.
3.2 Corporate Approval. Lender shall have received evidence of approval of this
Second Amendment by Borrower's board of directors by appropriate corporate
action of such board.
SECTION 4. GENERAL PROVISIONS
4.1 Except as amended by this Second Amendment, the terms and provisions of the
Loan Agreement as amended shall remain unchanged and are in all other respects
ratified and confirmed and remain in full force and effect. The terms and
provisions of the Pledge Agreement dated August 14, 1996, and as amended as of
April 30, 1998, shall remain unchanged and are in all other respects ratified
and confirmed and remain in full force and effect.
4.2 Borrower hereby agrees to pay all out-of-pocket expenses incurred by Lender
in connection with the preparation, negotiation and consummation of this Second
Amendment, and all other documents related thereto (whether or not any
borrowings under the Second Amendment shall be consummated), including, without
limitation, the fees and expenses of Lender's counsel not to exceed $5,000.00,
and any filing fees and recordation tax required in connection with the filing
of any documents necessary to consummate the provisions of this Second
Amendment.
4.3 This Second Amendment shall be construed in accordance with and governed by
the laws of the State of Illinois, and the obligations of Borrower under this
Second Amendment are and shall arise absolutely and unconditionally upon the
execution and delivery of this Second Amendment.
4.4 This Second Amendment may be executed in any number of counterparts.
4.5 On or after the effective date hereof, each reference in the Loan Agreement
to this "Agreement", "hereof", or word of like import, shall, unless the context
otherwise requires, be deemed to refer to the Loan Agreement as amended and this
Second Amendment.
4.6 The recitals to this Second Amendment are incorporated herein in their
entirety by this reference thereto and deemed to be a part hereof. Capitalized
terms used herein, unless otherwise defined herein, shall have the meanings
provided in the Loan Agreement as amended and this Second Amendment.
IN WITNESS WHEREOF, Borrower has caused this Second Amendment to be
duly executed by its duly authorized officer and Lender has caused this Second
Amendment to be executed by its duly authorized officer, all as of the day and
year first above written.
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BORROWER: BANCFIRST OHIO CORP.
By:
Title:
LENDER: LASALLE BANK, N.A.
a National Banking Association
By:
Title:
