EXHIBIT 10(f)
LOAN AGREEMENT
AGREEMENT dated December 20, 2001, by and between CITY NATIONAL BANCSHARES
CORPORATION, a New Jersey corporation ("Borrower"), and the NATIONAL COMMUNITY
INVESTMENT FUND, a trust ("Lender").
In consideration of the mutual promises and undertakings set forth or provided
for herein, the parties hereto agree as follows:
1. Loan. Subject to the terms and conditions herein set forth, Lender agrees
to lend to Borrower and Borrower agrees to borrow from Lender the
principal amount of $1,000,000. The loan shall be evidenced by, shall bear
interest and shall otherwise be repayable in accordance with the Secured
Promissory Note of Borrower dated the date hereof (the "Note") in the
principal amount of $1,000,000, which is being delivered by Borrower to
Lender herewith.
2. Security. Borrower's obligations hereunder and in connection herewith,
which shall include without limitation timely and complete fulfillment and
performance by Borrower of all its covenants and agreements hereunder and
under the Note, are secured by a Pledge Agreement dated the date hereof
(the "Pledge Agreement") between Borrower and Lender. Each of the Note and
the Pledge Agreement is being executed and delivered by the parties
thereto simultaneously with the execution and delivery of this Agreement.
3. Term. This Agreement shall remain in full force and effect until all
obligations of Borrower to Lender hereunder and in connection herewith are
paid, fulfilled and discharged.
4. Representations and Warranties. Borrower hereby represents and warrants to
Lender as follows:
(a) Borrower is a corporation, duly incorporated, validly existing and
in good standing under the laws of New Jersey, and Borrower has all
requisite authority to conduct its business as now conducted and in
each jurisdiction in which its business is conducted.
(b) Borrower has full corporate power and authority to execute and
deliver this Agreement, the Note and the Pledge Agreement; they have
each been duly approved, authorized, executed and delivered by and
on behalf of
Borrower; and they are valid and binding obligations of Borrower
enforceable against Borrower in accordance with their respective
terms.
(c) Borrower directly owns and holds, beneficially and of record, all of
the issued and outstanding shares of common capital stock of City
National Bank of New Jersey, a national association (the "Bank"),
free and clear of all pledges, liens, security interests, charges,
encumbrances, or other rights or interests of others. Schedule 4(c)
hereto completely and correctly describes all of the authorized
shares of capital stock of the Bank and sets forth the number of
shares which are issued and outstanding. There is no plan, agreement
or understanding providing for or contemplating the issuance of any
additional shares of common capital stock of the Bank. All of the
issued and outstanding shares of capital stock of the Bank, as set
forth on Schedule 4(c), have been duly authorized and issued, have
not been issued in violation of any preemptive rights, and are fully
paid and nonassessable. There are no outstanding options, rights,
warrants, agreements or commitments to issue, deliver or sell, or to
cause to be issued, delivered or sold, any additional shares of
capital stock of the Bank or to grant, offer or enter into any such
options, rights, warrants, agreements or commitments.
(d) The execution and delivery of this Agreement, the Note and the
Pledge Agreement by Borrower, and the performance by Borrower of its
obligations hereunder and thereunder, do not and will not violate,
conflict with or constitute a breach of or default under any
applicable law or regulation, the Articles of Incorporation or
By-Laws of Borrower, any order of any court or other governmental
authority or agency, or any material agreement, indenture, mortgage,
lease, note or other obligation or instrument to which Borrower is a
party or by which Borrower or any its properties is bound.
(e) The Bank is a bank, duly organized, validly existing and in good
standing under the banking and other applicable laws of the United
States, and the Bank has all requisite authority to conduct its
business as now conducted. The deposit accounts of the Bank are
insured
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by the Federal Deposit Insurance Corporation pursuant to the Federal
Deposit Insurance Act.
(f) There is no action, suit or proceeding, at law or in equity, or any
inquiry or investigation, before or by any court or other
governmental authority or agency, pending or, to Borrower's
knowledge, overtly threatened against or affecting Borrower or the
Bank or any of their respective properties.
(g) No approval, consent or authorization of any governmental authority
or agency is required in connection with Borrower's entering into or
performing its obligations under this Agreement, the Note or the
Pledge Agreement.
(h) The consolidated financial statements of Borrower as of and for the
years ended December 31, 2000 and 1999, which are audited by its
independent certified public accountants, and as of and for the 9
months ended September 30, 2001, which are unaudited, all of which
financial statements have been delivered to Lender, are, in each
case, correct and complete in all material respects, present fairly
the financial position of Borrower as of the date thereof and for
the period covered thereby, and have been prepared in accordance
with generally accepted accounting principles consistently applied.
Borrower has also delivered to Lender a correct and complete copy of
the call report filed by the Bank for the period ending September
30, 2001 and a correct and complete copy of the Form FRY-9C filed by
Borrower for the period ending September 30, 2001. There has been no
material adverse change in the financial condition, business,
properties or operations of either Borrower or the Bank since
September 30, 2001.
(i) Neither Borrower nor the Bank, nor any of their respective officers
or directors, are now operating under any restrictions, agreements,
memoranda or commitments (other than restrictions generally
applicable to banks and bank holding companies) imposed by any
governmental authority or agency.
(j) Borrower and the Bank are each in substantial compliance with all
applicable laws, rules, regulations, orders, writs, judgments,
injunctions, decrees and awards, where a failure to be in
substantial compliance has or might
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have, either separately or in the aggregate, a material adverse
impact on the financial condition, business, properties or
operations of either Borrower or the Bank.
(k) Each of Borrower and the Bank is and intends to remain a Community
Development Financial Institution, as defined in the Community
Development Banking and Financial Institutions Act of 1994 (a
"CDFI") (whether or not certified as a CDFI by the federal Community
Development Financial Institutions Fund), and as such, each of
Borrower and the Bank:
(i) has a primary mission of promoting community development;
(ii) serves either (A) an investment area that meets objective
criteria of economic distress and has significant unmet needs
for loans or equity investment, or (B) a targeted population
of low-income persons or persons who otherwise lack adequate
access to loans or equity investments;
(iii) provides development services in conjunction with equity
investments or loans, directly or through a subsidiary or
affiliate;
(iv) maintains, through representation on its governing board or
otherwise, accountability to residents of its investment area
or targeted population; and
(v) is not an agency or instrumentality of the United States, or
of any State or political subdivision of a State.
5. Covenants. Borrower covenants and agrees with Lender as follows:
(a) Borrower will pay all principal and interest under the Note in full
when due.
(b) Borrower will remain a CDFI.
(c) Within 120 days after the end of each fiscal year of Borrower,
Borrower will deliver to Lender a written report regarding
Borrower's and the Bank's development activities during such fiscal
year, using such
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definitions and otherwise in such form and detail as Lender may from
time to time reasonably request.
(d) Within 30 days after filing, Borrower will deliver or cause to be
delivered to Lender complete and correct copies of all call reports
filed by the Bank and of all forms FRY-9C filed by Borrower, in each
case in the same form as filed.
(e) Within 120 days after the end of each fiscal year of Borrower,
Borrower will deliver to Lender a consolidated balance sheet of
Borrower as at the end of such fiscal year and a consolidated income
statement and statement of cash flows of Borrower for such fiscal
year, all in reasonable detail and accompanied by an opinion thereon
by independent certified public accountants selected by Borrower,
which opinion shall state that such financial statements present
fairly the consolidated financial condition of Borrower as at the
end of such fiscal year and the consolidated results of its
operations and its cash flows for such fiscal year and have been
prepared in accordance with generally accepted accounting principles
consistently applied.
(f) Borrower will deliver or cause to be delivered to Lender such other
documents and information concerning Borrower or the Bank, their
respective operations or their respective financial condition as
Lender may from time to time reasonably request, including without
limitation information reasonably necessary to permit Lender to
comply with its obligations to its sources of capital.
(g) Borrower will itself, and Borrower will cause the Bank to,
substantially comply with all applicable laws, rules, regulations,
orders, writs, judgments, injunctions, decrees and awards, where a
failure to be in substantial compliance has or might have, either
separately or in the aggregate, a material adverse impact on the
financial condition, business, properties or operations of either
Borrower or the Bank.
(h) Borrower will pay all of its material debts, liabilities and other
obligations as or before the same mature.
(i) Borrower will not itself, and Borrower will not permit the Bank to,
merge or consolidate with or into any other entity, or to lease,
sell or otherwise dispose of any of
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its assets, except in the ordinary course of its business. Borrower
will not permit the Bank (i) to issue any additional shares of its
common capital stock; (ii) to declare or make any distribution with
respect to any shares of its common capital stock, other than cash
dividends which are otherwise lawful in all respects; or (iii) to
redeem or otherwise acquire any shares of its common capital stock.
Borrower will not sell, transfer, otherwise dispose of, cause the
reissuance of, exchange or grant any option with respect to any
shares of common capital stock of the Bank.
(j) Borrower will forthwith use the proceeds of the loan under this
Agreement to contribute to or otherwise invest in the common capital
of the Bank.
(k) Borrower will pay to Lender simultaneously with the execution and
delivery of this Agreement a loan fee in the amount of $10,000.
(l) In addition to and not in limitation of any obligations of Borrower
under the Note, the Pledge Agreement or Section 7 of this Agreement,
Borrower will pay all expenses of Lender in connection with the
documentation, negotiation and closing of the loan hereunder, not to
exceed $5,000.
6. Default. The occurrence of any one or more of the following events shall
constitute and shall be defined as an "Event of Default" hereunder:
(a) Any failure by Borrower to pay in full any installment of principal
or interest due under the Note within ten (10) days after the same
becomes due and payable.
(b) Any failure by Borrower to pay any other amount in full when due or
to observe or perform any other covenant, agreement or condition
under this Agreement, the Note or the Pledge Agreement in accordance
with the terms hereof or thereof within thirty (30) days after the
delivery of written notice to Borrower by Lender of such failure.
(c) Any failure of any of Borrower's representations and warranties
contained in this Agreement, the Note or the Pledge Agreement to be
true and correct in all material respects when made.
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(d) The occurrence of any Event of Default under the Pledge Agreement or
the Note, as the term "Event of Default" is respectively defined or
used therein.
(e) Either or both of Borrower or the Bank shall (i) undertake or
attempt to undertake a voluntary dissolution or liquidation of its
assets; (ii) have an order for relief entered with respect to it
under the Federal Bankruptcy Code; (iii) not pay, or admit in
writing its inability to pay, its debts generally as they become
due; (iv) make or attempt to make an assignment for the benefit of,
or a composition with, creditors; (v) apply for, seek, consent to or
acquiesce in, the appointment of a receiver, conservator, custodian,
trustee, examiner, liquidator or similar official for it or any
substantial part of its property; (vi) institute any proceeding
seeking to adjudicate Borrower or the Bank a bankrupt or insolvent
or seeking dissolution, winding up, liquidation, reorganization,
arrangement, adjustment or composition of it or its debts under any
law relating to bankruptcy, insolvency or reorganization or relief
of debtors, or fail to file an answer or other pleading denying the
material allegations of any such proceeding filed against it; (vii)
take any corporate action to authorize or effect any of the
foregoing actions set forth in (i) through (vi), inclusive, of this
subsection (e); or (viii) fail to contest in good faith and fail to
have promptly discharged or dismissed any appointment, order or
proceeding described in (v) or (vi) of this subsection (e).
(f) Either Borrower or the Bank ceases to be a CDFI.
7. Acceleration, Waivers and Remedies. Upon the occurrence of any Event of
Default, the principal amount outstanding under the Note, and all interest
accrued thereon, shall, at the election of Lender, immediately become due
and payable without presentment, demand, protest or notice of any kind,
all of which Borrower hereby expressly waives. In addition, upon the
occurrence of any Event of Default, Lender shall have available to it and
may exercise such other rights and remedies under this Agreement, the Note
or the Pledge Agreement or otherwise under any applicable law. No delay or
omission of Lender in the exercise of any right under this Agreement, the
Note or the Pledge Agreement or under any applicable law shall impair such
right or be construed to be
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a waiver of any Event of Default or an acquiescence therein, and any
single or partial exercise of any such right shall not preclude other or
future exercise thereof or the exercise of any other right. All remedies
of Lender shall be cumulative and shall be available to Lender until all
obligations of Borrower to Lender hereunder or in connection herewith are
fulfilled and discharged. Should it become necessary to collect the Note
through an attorney or otherwise, Borrower agrees to pay all costs of
collection of the Note, including costs of litigation and reasonable
attorneys' fees.
8. Further Assurances. Borrower agrees to execute and deliver such documents
and to take such other action as Lender may from time to time request to
protect or perfect the interests of Lender under and in connection with
this Agreement, the Note or the Pledge Agreement, or otherwise to carry
out the transactions contemplated hereby.
9. Benefit of Agreement; Assignment. This Agreement shall be binding upon and
shall inure to the benefit of Borrower and Lender and their respective
successors and assigns. No assignment shall be made by Borrower of
Borrower's rights hereunder without the prior written consent of Lender.
10. Notices. Any and all notices or other communications hereunder shall be in
writing and shall be deemed properly delivered when delivered personally
or when deposited in the United States mail for delivery by registered or
certified mail, return receipt requested, postage and fees prepaid, to the
parties as set forth below:
If to Lender:
National Community Investment Fund
0000 Xxxxx Xxxxxxx Xxxxxxxxx
Xxxxxxx, XX 00000
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If to Borrower:
Xxxxxx Xxxxxx, Chief Financial Officer
City National Bancshares Corporation
000 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Either party may change the name and address to which notice shall be sent by
giving written notice of such change to the other party.
11. Survival of Obligations. All representations, warranties, covenants and
agreements of Borrower contained or referred to in this Agreement, the
Note or the Pledge Agreement, and all Borrower's obligations with respect
thereto, shall survive delivery of this Agreement and the Note and shall
continue throughout the term of this Agreement.
12. Indemnity. Borrower agrees to indemnify Lender and hold Lender harmless
from and against any and all cost, expense, liability, loss or damage
incurred or suffered by Lender arising out of or in connection with,
whether directly or indirectly, any Event of Default, except to the extent
attributable to the gross negligence of Lender; provided that no
application of this exception shall relieve Borrower of its obligation to
pay all principal and interest under the Note in full when due.
13. Choice of Law. This Agreement and the Note and the Pledge Agreement shall
be governed by and construed in accordance with the internal laws (and not
the conflict of laws provisions) of Illinois.
14. Amendment. No extensions, changes, modifications or amendments to this
Agreement, the Note or the Pledge Agreement shall be made or claimed by
either party hereto, and no notices of any extension, change, modification
or amendment thereto made or claimed by a party hereto shall have any
force and effect whatsoever unless the same shall be endorsed in writing
and fully signed by both parties hereto.
15. Entire Agreement. This Agreement, including the Schedule hereto, the Note,
the Pledge Agreement and all other agreements referred to herein,
constitutes the entire agreement between the parties relating to the
subject matter hereof, and supersedes all prior correspondence,
agreements,
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discussions and understandings between the parties hereto relating to the
subject matter hereof.
16. Counterpart Execution. This Agreement and the Pledge Agreement may be
executed in more than one counterpart and by different parties in separate
counterparts, each of which when so executed and delivered shall be deemed
to be an original and all of which taken together shall constitute one and
the same instrument.
17. Lender agrees that any nonpublic information concerning Borrower provided
to it pursuant to the Loan Documents above shall not be disclosed by
Lender to any third person, except (i) with the written approval of
Borrower; (ii) to agents and advisors of Lender who have made this same
agreement; (iii) pursuant to requests or directions from bank regulators
or examiners or other authorized government agencies; or (iv) as required
by applicable law.
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this
Agreement as of the date first above written.
NATIONAL COMMUNITY INVESTMENT FUND
By:
--------------------------------------
Its Authorized Representative
CITY NATIONAL BANCSHARES CORPORATION
By:
--------------------------------------
Its President
ATTEST
------------------------------------
Secretary
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SCHEDULE 4(c)
Description of Authorized Shares of Capital Stock of City
National Bank of New Jersey and Number of Which Are
Issued and Outstanding
Authorized
69,000 shares of Common Stock, par value $0.10 per share
Issued and Outstanding
60,000 shares of Common Stock, par value $0.10 per share
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