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Exhibit 10.37
THIS FIRST AMENDMENT TO TERM LOAN AGREEMENT, dated as
of June 30, 1993 (but effective as of May 5, 1993), by and among (i) the ST.
PAUL FEDERAL BANK FOR SAVINGS EMPLOYEE STOCK OWNERSHIP TRUST (hereinafter
called the "Borrower"), created by the Trust Agreement entered into on March
26, 1987 between St. Paul Federal Bank for Savings, a federal savings bank, and
Patrick J. Agnew, Joseph C. Scully, Michael R. Notaro, Faustin A. Pipal and
Alan J. Fredian, as trustees, (ii) ST. PAUL BANCORP, INC., a Delaware
corporation (hereinafter called the "Holding Company"), and (iii) NATIONAR, a
trust company organized under the laws of the State of New York (hereinafter
called the "Lender"),
W I T N E S S E T H:
WHEREAS, the Borrower, the Holding Company and the
Lender are parties to a Term Loan Agreement, dated as of November 21, 1991 (the
"Agreement"), pursuant to which the Lender agreed to lend to the Borrower the
aggregate principal sum of up to Five Million Dollars ($5,000,000), which
principal sum was subject to increase, in certain circumstances as described in
the Agreement, up to an aggregate principal sum of Six Million Dollars
($6,000,000), for the purpose of providing the funds necessary for the Borrower
to purchase shares of Holding Company Stock (as defined in the Agreement), from
time to time, in open market purchases; and
WHEREAS, the Borrower, the Holding Company and the
Lender desire to amend the terms and provisions of the Agreement in certain
respects as hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and of
the transactions contemplated by the Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereby agree as follows:
1. Amendment to Term Loan Agreement. The
Agreement is hereby amended in the following respects:
(a) Definitions.
A new definition of "Annual Period" is hereby
added to Article I of the Agreement to read in full as follows:
"Annual Period" means the period commencing on
May 5, 1993 and expiring on June 30, 1994 and,
if the Loan Commitment period is extended by
the Lender in its discretion as hereinafter
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provided, each successive one-year period
thereafter commencing July 1 and expiring June
30."
The definition of the term "Available
Commitment" in Article I of the Agreement is hereby amended to read in full as
follows:
"Available Commitment" means the difference
between $15,000,000 and the aggregate
outstanding principal amount of the Term Loan
as of the date such difference is to be
calculated."
The definition of the term "Balloon Payment" in
Article I of the Agreement is hereby amended to read in full as follows:
"Balloon Payment" means the amount of the
principal payment which would be required to
amortize the Term Loan advanced during each
Annual Period in full on the fourteenth
anniversary of the termination of such Annual
Period, in excess of one forty-eighth (1/48) of
the aggregate principal amount of the Term Loan
advanced during such Annual Period and
outstanding on the second anniversary of the
termination of such Annual Period (including
any interest added to such principal amount
pursuant to subparagraph (b) of Section 2.4)."
The definition of the term "Loan Commitment
Period" in Article I of the Agreement is hereby amended to read in full as
follows:
"Loan Commitment Period" means the period
commencing on May 5, 1993 and expiring on June
30, 1994 during which the Lender is obligated
to make loans to the Borrower pursuant to
Section 2.1 hereof in the amount referred to
therein, which period is subject to extension
for successive one-year periods in the
discretion of the Lender on the basis of the
Lender's credit review of the Borrower, the
Bank and the Holding Company. If the Lender
elects to extend the duration of the Loan
Commitment Period as aforesaid it will so
notify the Borrower and the Holding Company of
such election not later than May 30th of each
year during the Loan Commitment Period."
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A new definition of "Federal Funds Rate" is
hereby added to Article I of the Agreement to read in full as follows:
"Federal Funds Rate" means the average of the
high and low "federal funds" rates as published
in the New York edition of The Wall Street
Journal from time to time reflecting the rates
charged on overnight loans of reserves of
$1,000,000 or more among commercial banks. In
the event of any change in the Federal Funds
Rate, the rate of interest on the Term Loan
shall be changed accordingly as of the date of
change in the Federal Funds Rate, without
notice to the Borrower."
The definition of the term "Term Note" in Article I of
the Agreement is hereby amended to read in full as follows:
"Term Note" means the Amended and Restated Term
Note, dated as of June 30, 1993 (but effective
as of May 5, 1993), in the principal amount of
Eighteen Million Dollars ($18,000,000), made by
the Borrower in favor of the Lender."
(b) Amendment to Section 2.1. Section 2.1 of the
Agreement is hereby amended to read in full as follows:
"SECTION 2.1. Term Loan. Subject to the terms
and conditions of this Agreement, the Lender
agrees to make one or more loans to the
Borrower up to the aggregate principal amount
of Fifteen Million Dollars ($15,000,000),
subject to adjustment in such principal amount
to an aggregate principal amount of Eighteen
Million Dollars ($18,000,000) as provided in
Section 2.4 (the "Term Loan"). The Lender
shall make the principal amount of the Term
Loan available to the Borrower during the Loan
Commitment Period."
(c) Amendment to Section 2.2. Section 2.2 of the
Agreement is hereby amended to read in full as follows:
"SECTION 2.2 Term Note.
(a) The Term Loan shall be evidenced by an
Amended and Restated Term Note (the "Term
Note") which shall be payable to the order of
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the Lender and represent the obligation of the
Borrower to pay the amount of the Term Loan
with interest thereon as prescribed in Section
2.4. The Term Note shall: (i) be dated as of
June 30, 1993 (but effective as of May 5,
1993), (ii) bear interest at a rate per annum
determined as set forth in Section 2.4, payable
in arrears on each Payment Date as set forth in
Section 2.4 and upon payment in full of the
unpaid principal amount thereof and (iii) be
payable with respect to the principal amount
thereof advanced during each Annual Period and
all interest thereon commencing after the
second anniversary of the termination of such
Annual Period as hereinafter provided in
subparagraphs (b) and (c) below. Promptly
following the end of each Annual Period the
Lender shall deliver to the Borrower and the
Holding Company a schedule which reflects the
principal amount of the Term Loan advanced
during such Annual Period.
(b) Commencing with the first Payment Date
next succeeding the second anniversary of the
termination of each Annual Period, principal
and interest with respect to the Term Loan
advanced during such Annual Period shall be
payable on each Payment Date in forty eight
(48) equal payment installments (consisting of
principal and interest), each of which shall be
in an amount which would be sufficient to
amortize the aggregate principal amount of the
Term Loan advanced during such Annual Period
and outstanding on the second anniversary of
the date of the termination of such Annual
Period (including any interest added to the
principal amount of the Term Note pursuant to
subparagraph (b) of Section 2.4) fully on the
fourteenth anniversary of the termination of
such Annual Period, assuming, solely for
purposes of calculating the size of the payment
installments required pursuant to this
subparagraph (b) of Section 2.2, that interest
was payable with respect to the Term Loan
advanced during such Annual Period (including
any interest added to the principal amount of
the Term Note pursuant to subparagraph (b) of
Section 2.4) as provided in the first sentence
of subparagraph (a) of Section 2.4 but using
7.5% as the assumed interest rate payable with
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respect to the Term Loan. Such payment
installments will, upon receipt by the Lender,
be applied first to the payment of accrued
interest and second to the payment of principal
with respect to the Term Loan advanced during
such Annual Period (including any interest
added to the principal amount of the Term Note
pursuant to subparagraph (b) of Section 2.4) in
accordance with the amortization schedule
described in the immediately preceding
sentence; provided, however, that (i) during
any period in which the actual interest rate
payable with respect to the Term Loan pursuant
to subparagraph (a) of Section 2.4 is less than
7.5% at any time after the second anniversary
of the termination of such Annual Period, the
Lender shall apply any amount of a payment
installment received, in excess of (y) the
regularly scheduled principal payment and (z)
interest on the outstanding principal amount of
the Term Loan advanced during such Annual
Period (including any interest added to the
principal amount of the Term Note pursuant to
subparagraph (b) of Section 2.4) computed in
accordance with subparagraph (a) of Section
2.4, as a prepayment of the principal amount of
the Term Loan advanced during such Annual
Period (including any interest added to the
principal amount of the Term Note pursuant to
subparagraph (b) of Section 2.4) and (ii)
during any period in which the actual interest
rate payable with respect to the Term Loan
pursuant to paragraph (a) of Section 2.4) is
greater than 7.5% at any time after the second
anniversary of the termination of such Annual
Period, the Lender shall apply any payment
installment received first to interest on the
outstanding principal amount of the Term Loan
advanced during such Annual Period (including
any interest added to the principal amount of
the Term Note pursuant to subparagraph (b) of
Section 2.4) computed in accordance with
subparagraph (a) of Section 2.4 and the balance
of such installment, if any, after the payment
of interest as aforesaid, shall be applied to
reduce the outstanding principal amount of the
Term Loan advanced during such Annual Period
(including any interest added to the principal
amount of the Term Note pursuant to
subparagraph (b) of Section 2.4).
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(c) Notwithstanding anything in
subparagraph (b) above to the contrary, from
and after the date that the aggregate amount of
the Balloon Payment equals or exceeds Three
Million Dollars ($3,000,000), the amount of the
remaining payment installments with respect to
the Term Loan for each Annual Period referred
to in subparagraph (b) above will be subject to
adjustment with the result that (x) the
remaining outstanding principal amount of the
Term Loan will be fully amortized over the
remainder of the maturity of the Term Loan
without the requirement of any Balloon Payment
on the fourteenth anniversary of the
termination of each Annual Period and (y)
interest shall be payable currently on the
principal balance of the Term Loan from time to
time outstanding as provided in subparagraph
(a) of Section 2.4."
(d) Amendment to Section 2.4. Section 2.4 of the
Agreement is hereby amended to read in full as follows:
"SECTION 2.4. Interest
(a) At the option of the Borrower, the
Term Note shall bear interest from the date
thereof until payment in full of the unpaid
principal amount thereof at a rate per annum
equal (i) to the Bank Prime or (ii) the Federal
Funds Rate plus two hundred and fifty basis
points (2.50%), in either case subject to
adjustment as hereinafter provided in
subsection (b) of this Section 2.4. The
Borrower shall select the rate of interest
which shall initially be applicable to the Term
Note by giving written notice of its election
with respect thereto to the Lender on or before
the termination of each Annual Period.
Thereafter, on each anniversary of the
termination of the Annual Period the Borrower
shall be permitted to make a new election with
respect to the rate of interest applicable to
the Term Note by giving the Lender notice of
its election with respect thereto not less than
thirty (30) days prior to each such anniversary
date. Each such subsequent election, if any,
shall be effective from and after the
anniversary of the termination of the Annual
Period to which it relates and in the absence
of such an election the rate of interest with
respect to the
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Term Note shall be determined pursuant to the
most recent effective interest rate election.
Interest shall be payable quarterly in arrears
on each Payment Date to occur after the date
hereof, commencing September 30, 1993, with a
final payment of interest being due and payable
on the fourteenth anniversary of the
termination of the last Annual Period
hereunder. Any change in the interest rate on
the Term Note resulting from a change in the
Bank Prime or Federal Funds Rate shall become
effective as of the date of change in the Bank
Prime or Federal Funds Rate without prior
notice to the Borrower.
(b) Notwithstanding anything in
subparagraph (a) above to the contrary, during
the period prior to the second anniversary of
the termination of each Annual Period and
except as otherwise set forth below, the
Borrower will make current payments of interest
on the unpaid principal amount of the Term Loan
advanced during such Annual Period at the rate
determined as provided in the first sentence of
subparagraph (a) above but using 7.5% as the
assumed interest rate payable with respect to
the Term Note. During such period, the excess
(the "Excess"), if any, of the interest with
respect to the Term Loan as provided in the
first sentence of subparagraph (a) above
(without regard to the provisions of the
immediately preceding sentence) and the
interest with respect to the Term Loan which is
currently payable as provided in the
immediately preceding sentence shall be added
to the outstanding principal amount of the Term
Loan advanced during such Annual Period as of
each Payment Date; provided, however, that in
no event shall such Excess exceed Three Million
Dollars ($3,000,000) with respect to all such
Annual Periods in the aggregate. From and
after the date that the Excess equals or
exceeds Three Million Dollars ($3,000,000),
interest shall be payable with respect to the
Term Loan without regard to the provisions of
this subparagraph (b). During the period prior
to the second anniversary of the termination of
each Annual Period, the surplus, if any, of the
interest with respect to the Term Loan advanced
during such Annual Period which is currently
payable as provided in the first
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sentence of this subparagraph (b) and the
interest with respect to the Term Loan advanced
during such Annual Period as provided in the
first sentence of subparagraph (a) above
(without regard to the provisions of the first
sentence of this subparagraph (b)) shall be
applied as a prepayment of the principal amount
of the Term Loan advanced during such Annual
Period. Each of the Lender, the Borrower and
the Holding Company acknowledges and agrees
that the provisions of this subparagraph (b)
relate solely to the determination of the
amount which is currently payable with respect
to the Term Loan during the periods set forth
herein and do not modify or alter in any
respect the provisions of subparagraph (a)
above which shall at all times govern the rate
of interest payable with respect to the Term
Loan.
(c) Interest shall be calculated on the
basis of the actual number of days elapsed over
a three hundred sixty-five (365) day year."
(e) Amendment to Section 2.5. Section 2.5 of the
Agreement is hereby amended to read in full as follows:
"SECTION 2.5 Prepayment. Subject to the
conditions and restrictions contained herein
and except as otherwise provided in Sections
2.2 and 2.4, the Borrower may prepay the Term
Note at any time after the date hereof, in
whole or in part, on at least three Business
Days' prior written notice to the Lender,
specifying the date and the amount of
prepayment, and upon the payment of accrued but
unpaid interest on the amount prepaid to the
date of such prepayment. Partial prepayments
on the Term Note shall be in an aggregate
principal amount of at least Ten Thousand
Dollars ($10,000) and shall be applied on
account of the installments of principal of the
Term Note in the order of their stated
maturities. During the period prior to May 5,
1995, any prepayment, in whole or in part, of
the Term Note shall be accompanied by a
prepayment premium equal to two percent (2%) of
the outstanding principal amount of the Term
Loan, as adjusted from time to time.
Prepayments on the Term Note shall not in any
way alter or suspend any obligation of the
Borrower under this Agreement except to
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the extent that such prepayments result in a
credit against payments on the Term Note, as
provided above, and the Borrower shall continue
to perform and be responsible for the
performance of all of the terms and provisions
of this Agreement."
2. Conditions Precedent.
(a) The obligation of the Lender to consummate the
transactions contemplated by this First Amendment to Term Loan Agreement shall
be subject to the satisfaction of the following conditions precedent:
(i) Documents. The Lender shall have
received executed counterparts of the documents annexed hereto as Exhibit A
through G.
(ii) Interest. All accrued but unpaid
interest with respect to the Term Loan as of the date of the Term Note shall
have been paid to the Lender.
(b) The obligation of the Borrower to consummate
the transactions contemplated by this First Amendment to Term Loan Agreement
shall be subject to the Borrower's receipt of the executed original promissory
note made by the Borrower in favor of the Lender at the time of and in
connection with the Agreement.
3. Ratification of Agreement. Each of the
Borrower, the Holding Company and the Lender hereby ratifies and confirms all
of the terms and provisions of the Agreement as amended hereby.
4. Applicable Law. This First Amendment to
Agreement shall be governed by, construed and enforced in accordance with the
laws of the State of New York without regard to the choice of law provisions
thereof, except to the extent that the laws of the State of New York are
superseded by mandatory provisions of applicable federal law.
5. Counterparts. This First Amendment to
Agreement may be executed in one or more counterparts and by different parties
hereto in separate counterparts, each of which when so executed and delivered
shall be deemed to be an original and all of which counterparts shall taken
together constitute but one and the same instrument.
6. Headings. Section headings in this First
Amendment to Agreement are included herein for convenience of reference only
and shall not constitute a part of the Agreement for any other purpose.
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IN WITNESS WHEREOF, the parties hereto have caused this
First Amendment to Term Loan Agreement to be executed by their respective
officers thereunto duly authorized as of the day and year first above written.
ST. PAUL FEDERAL BANK FOR SAVINGS
EMPLOYEE STOCK OWNERSHIP TRUST
By:_________________________________
Patrick J. Agnew, Trustee
By:_________________________________
Alan J. Fredian, Trustee
By:_________________________________
Michael R. Notaro, Trustee
By:_________________________________
Faustin A. Pipal, Trustee
By:_________________________________
Joseph C. Scully, Trustee
ST. PAUL BANCORP, INC.
By: ________________________________
Name:
Title:
NATIONAR
By: ________________________________
Name:
Title:
By: ________________________________
Name:
Title:
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EXHIBIT A
AMENDED AND RESTATED
TERM NOTE
Up to $18,000,000.00 New York, New York
As of June 30, 1993
(but effective as of
May 5, 1993)
FOR VALUE RECEIVED, ST. PAUL FEDERAL BANK FOR SAVINGS
EMPLOYEE STOCK OWNERSHIP TRUST (the "Borrower"), hereby promises to pay to the
order of NATIONAR, a trust company organized under the laws of the State of New
York (the "Lender"), the principal sum of Eighteen Million Dollars
($18,000,000.00) or, if less, the aggregate outstanding principal amount of all
loans (the "Loans") which are made by the Lender to the Borrower and which are
intended to be evidenced by this Note pursuant to and in accordance with the
provisions of the Term Loan Agreement, dated as of November 21, 1991, as
amended by a First Amendment to Term Loan Agreement, dated as of the date
hereof (but effective as of May 5, 1993) (as so amended, the "Loan Agreement"),
by and among the Borrower, the Lender and St. Paul Bancorp, Inc., a Delaware
corporation (the "Guarantor"), by written endorsement with respect thereto by
any officer of the Lender upon Schedule A annexed hereto, in quarterly
installments, commencing September 30, 1996, pursuant to Section 2.2 of the
Loan Agreement. The Borrower also promises to pay interest on the unpaid
principal amount hereof, pursuant to Sections 2.2 and 2.4 of the Loan
Agreement, from time to time outstanding (computed on the basis of the actual
number of days elapsed in a year of 365 days), from the date of the initial
advance pursuant to the Loan Agreement until payment in full of the principal
amount hereof, quarterly in arrears on the last Business Day of each March,
June, September and December during the term hereof, commencing September 30,
1993, at a fluctuating rate of interest equal to the rate of interest computed
pursuant to Sections 2.2 and 2.4 of the Loan Agreement. The Loan Agreement
sets forth further terms and conditions upon which the entire unpaid principal
amount hereof and all interest hereon may become due and payable prior to the
stated maturity hereof, and generally as to further rights of the Lender and
duties of the Borrower and the Guarantor, and is incorporated herein by
reference.
This Note is the Term Note referred to in, and is
entitled to the benefits of, the Loan Agreement. This Note
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may not be voluntarily prepaid except as provided in Sections 2.2, 2.4 and 2.5
of the Loan Agreement and is subject to acceleration and mandatory prepayment
as provided in Section 7.2 of the Loan Agreement. If the Borrower should fail
to make any payment of the principal amount hereof or any interest thereon, as
and when the same shall be due and payable, the amount so due shall bear
interest from the due date thereof to the date of actual payment at the rate of
interest set forth in Section 2.8 of the Loan Agreement, but in no event shall
interest be payable hereunder at a rate higher than the highest rate permitted
by applicable law. The obligation of the Borrower to the Lender hereunder is
secured pursuant to the terms of a Pledge and Security Agreement, dated as of
November 22, 1991, as amended by a First Amendment to Pledge and Security
Agreement, dated as of the date hereof (but effective as of May 5, 1993) (as so
amended, the "Pledge Agreement"), made by the Borrower in favor of the Lender.
In addition, the obligation of the Borrower to the Lender hereunder is
guaranteed pursuant to the terms of a Guaranty, dated as of November 22, 1991,
as amended by a First Amendment to Guaranty, dated as of the date hereof (but
effective as of May 5, 1993), made by the Guarantor in favor of the Lender (as
so amended, the "Guaranty") and such Guaranty is secured pursuant to the terms
of a Pledge and Security Agreement, dated as of November 22, 1991, as amended
by a First Amendment to Pledge and Security Agreement, dated as of the date
hereof (but effective as of May 5, 1993) (as so amended, the "Guarantor
Security Agreement"), made by the Guarantor in favor of the Lender. Upon the
occurrence of an Event of Default (as defined in the Loan Agreement), the
Lender shall have all of the rights set forth in the Pledge Agreement, the
Guaranty and the Guarantor Security Agreement.
The remedies of the holder hereof against the Borrower
hereunder upon the occurrence of an Event of Default specified in the Loan
Agreement are limited to the extent and in the manner set forth in Sections 2.7
and 7.6 of the Loan Agreement; reference is made thereto for a full statement
of the provisions thereof.
Both the principal amount hereof, together with all
interest thereon, shall be payable in Immediately Available Funds in lawful
money of the United States of America to the Lender at its office located at
1000 Woodbury Road, Woodbury, New York 11797 (or such other location as shall
be specified by Lender). As used herein, the term Immediately Available Funds
shall mean funds which are available for immediate use by the Lender not later
than the due date of such payment.
Presentment and demand for payment, notice of dishonor,
protest and notice of protest of this Note are hereby
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waived by the Borrower. The Borrower agrees to pay all reasonable
out-of-pocket expenses (including, but not limited to, reasonable attorneys'
fees) incurred by the holder hereof in connection with the enforcement of this
Note.
As further described in Section 9.14 of the Loan
Agreement, the loan evidenced hereby is intended to be an "exempt loan" for
purposes of the "prohibited transaction" provisions of the Employee Retirement
Income Security Act of 1974, as amended and Section 4975 of the Internal
Revenue Code of 1986, as amended, and all terms in the Loan Agreement or other
Loan Documents shall be construed in a manner consistent with such intent.
All capitalized terms used herein and not otherwise
defined are used with the meanings given to such terms in the Loan Agreement.
This Note and the rights and obligations of the Lender
and the Borrower hereunder shall be governed by, interpreted and construed in
accordance with the laws of the State of New York.
This Note is the Term Note dated November 22, 1991 made
by the Borrower in favor of the Lender which has been amended and restated in
its entirety as of the day and year first above written.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the Borrower has executed and delivered this Note
as of the day and year first above written.
ST. PAUL FEDERAL BANK FOR
SAVINGS EMPLOYEE STOCK
OWNERSHIP TRUST
By: __________________________
Patrick J. Agnew, Trustee
By: __________________________
Alan J. Fredian, Trustee
By: __________________________
Michael R. Notaro, Trustee
By: __________________________
Faustin A. Pipal, Trustee
By: __________________________
Joseph C. Scully, Trustee
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Schedule A
Schedule of Loans and Payments
Amount Amount of Unpaid Name and
of Principal Principal Signature of Person
Date Loan Paid Balance Making Notation
- ---- ------ --------- --------- -------------------
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EXHIBIT B
FIRST AMENDMENT TO
PLEDGE AND SECURITY AGREEMENT
THIS FIRST AMENDMENT TO PLEDGE AND SECURITY AGREEMENT,
dated as of June 30, 1993 (but effective as of May 5, 1993), by and between (i)
ST. PAUL FEDERAL BANK FOR SAVINGS EMPLOYEE STOCK OWNERSHIP TRUST (the
"Pledgor"), a trust created by the Trust Agreement entered into on March 26,
1987, between St. Paul Federal Bank For Savings, a federal savings bank (the
"Bank"), and Patrick J. Agnew, Joseph C. Scully, Michael R. Notaro, Faustin A.
Pipal and Alan J. Fredian, as trustees, and (ii) NATIONAR, a trust company
organized under the laws of the State of New York (the "Secured Party");
W I T N E S S E T H:
WHEREAS, the Pledgor, the Secured Party and St. Paul
Bancorp, Inc., a Delaware corporation which is the bank holding company of the
Bank (the "Holding Company"), are parties to a Term Loan Agreement, dated as of
November 21, 1991, as amended by a First Amendment to Term Loan Agreement (the
"First Amendment"), dated as of the date hereof (but effective as of May 5,
1993) (as so amended, the "Agreement"), pursuant to which the Secured Party has
agreed to make one or more loans to the Pledgor in the aggregate amount of up
to Eighteen Million Dollars (the "Loans") for the purpose of enabling the
Pledgor to purchase, from time to time, in open market purchases, shares of the
common stock, par value $.01 per share, of the Holding Company (the "Pledged
Shares");
WHEREAS, in connection with the transactions
contemplated by the Agreement, the Pledgor and the Secured Party have entered
into a Pledge and Security Agreement, dated as of November 22, 1991 (the
"Pledge Agreement"); and
WHEREAS, in connection with the transactions
contemplated by the First Amendment, the Pledgor and the Secured Party desire
to amend the terms and provisions of the Pledge Agreement in certain respects
as hereinafter set forth;
NOW, THEREFORE, in consideration of the Loans and the
transactions contemplated by the Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, it
is agreed as follows:
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1. Amendment to the Pledge Agreement. The Pledge
Agreement is hereby amended in the following respects:
a. Definitions.
A new definition of "Term Note" is hereby added
at the end of Section 1 of the Pledge Agreement to read in full as follows:
"Term Note" means the Amended and Restated Term
Note, dated as of the date hereof (but
effective as of May 5, 1993), in the principal
amount of Eighteen Million Dollars
($18,000,000), made by the Pledgor in favor of
the Secured Party."
All references in the Pledge Agreement to the
Agreement shall be deemed to refer to the Agreement as amended by the First
Amendment.
All references in the Pledge Agreement to Loans
shall be deemed to refer to the loans made by the Secured Party to the Pledgor
pursuant to the Term Note.
b. Amendment to Section 2. Section 2 of
the Pledge Agreement is hereby amended to read in full as follows:
"2. Secured Obligations. This Pledge
Agreement secures, and the Pledged Collateral
is collateral security for, the prompt payment
in full when due, whether by acceleration or
otherwise, of (i) the principal of and interest
on the Term Note and (ii) all other obligations
and liabilities of the Pledgor to the Secured
Party pursuant to the provisions of, or arising
on account or as a result of the breach of, the
Agreement and this Pledge Agreement, in each
case as amended by a First Amendment thereto,
dated as of the date hereof. All such
obligations are hereinafter collectively
referred to as the "Secured Obligations."
(c) Amendment to Section 14. The second
sentence of Section 14 of the Pledge Agreement is hereby amended to read in
full as follows:
"As of December 31 of each year, the Secured
Party agrees to release its security interest
in a number of whole Pledged Shares equal to
the number of Pledged Shares held immediately
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prior to such release, multiplied by a fraction
the numerator of which shall be the aggregate
amount of principal and interest paid under the
Term Note (as defined in the Agreement) during
such year and the denominator of which shall be
the sum of the numerator plus all principal and
interest to be paid under the Term Note for all
future years through the fourteenth anniversary
of the termination of the Loan Commitment
Period (as defined in the Agreement), assuming
for this purpose only that the Loan Commitment
Period was terminated as of the end of the
Annual Period (as defined in the Agreement)
during which such release occurs."
3. Ratification of Agreement. Each of the Pledgor
and the Secured Party hereby ratifies and confirms all of the terms and
provisions of the Pledge Agreement as amended hereby.
4. Applicable Law. This First Amendment to Pledge
Agreement shall be governed by, construed and enforced in accordance with the
laws of the State of New York without regard to the choice of law provisions
thereof, except to the extent that the laws of the State of New York are
superseded by mandatory provisions of applicable federal law.
5. Counterparts. This First Amendment to Pledge
Agreement may be executed in one or more counterparts and by different parties
hereto in separate counterparts, each of which when so executed and delivered
shall be deemed to be an original and all of which counterparts shall taken
together constitute but one and the same instrument.
6. Headings. Section headings in this First
Amendment to Pledge Agreement are included herein for convenience of reference
only and shall not constitute a part of the Pledge Agreement for any other
purpose.
19
4
IN WITNESS WHEREOF, the Pledgor and the Secured Party
have caused this First Amendment to Pledge Agreement to be executed by their
respective officers thereunto duly authorized as of the day and year first
above written.
ST. PAUL FEDERAL BANK FOR SAVINGS
EMPLOYEE STOCK OWNERSHIP TRUST
By:_______________________________
Patrick J. Agnew, Trustee
By:_______________________________
Alan J. Fredian, Trustee
By:_______________________________
Michael R. Notaro, Trustee
By:_______________________________
Faustin A. Pipal, Trustee
By:_______________________________
Joseph C. Scully, Trustee
NATIONAR
By: _____________________________
Name:
Title:
By: _____________________________
Name:
Title:
20
SCHEDULE I
Attached to and forming a part of that certain First
Amendment to Pledge and Security Agreement, dated as of June 30, 1993 (but
effective as of May 5, 1993) by and between St. Paul Federal Bank For Savings
Employee Stock Ownership Trust, as pledgor, and Nationar, as secured party.
Class Stock Number
of Certificate of
Stock Number Shares
- ----- ----------- ------
Date:
21
EXHIBIT C
FIRST AMENDMENT TO
GUARANTY
THIS FIRST AMENDMENT TO GUARANTY, dated as of June 30,
1993 (but effective as of May 5, 1993), is made by ST. PAUL BANCORP, INC., a
Delaware corporation (the "Guarantor"), in favor of NATIONAR, a trust company
organized under the laws of the State of New York (the "Lender");
W I T N E S S E T H:
WHEREAS, the St. Paul Federal Bank For Savings Employee
Stock Ownership Trust (the "Trust"), the Guarantor and the Lender are parties
to a Term Loan Agreement, dated as of November 21, 1991, as amended by a First
Amendment to Term Loan Agreement (the "First Amendment"), dated as of the date
hereof (but effective as of May 5, 1993) (as so amended, the "Agreement"),
pursuant to which the Lender has agreed to lend the aggregate sum of up to
Eighteen Million Dollars ($18,000,000) (collectively, the "Loan") to the Trust
for the purpose of enabling the Trust to purchase shares of common stock, par
value $.01 per share, of the Guarantor from time to time in open market
purchases;
WHEREAS, in connection with the transactions
contemplated by the Agreement, the Guarantor executed and delivered a Guaranty,
dated as of November 22, 1991 (the "Guaranty"), in favor of the Lender; and
WHEREAS, in connection with the transactions
contemplated by the First Amendment, the Guarantor desires to amend the terms
and provisions of the Guaranty in certain respects as hereinafter set forth;
NOW, THEREFORE, in consideration of the Loan and the
transactions contemplated by the Agreement and in order to provide the Lender
with assurance of the repayment of the Loan, the Guarantor hereby agrees for
the benefit of the Lender as follows:
1. Amendment to Section 2. Section 2 of the
Guaranty is hereby amended to read in full as follows:
"2. Definitions. All capitalized terms
used herein and not otherwise defined have the
meanings given to such terms in the Agreement."
22
2
A new definition of "Term Note" is hereby added
at the end of Section 2 to read in full as follows:
"Term Note" means the Amended and Restated Term
Note, dated as of the date hereof (but
effective as of May 5, 1993), in the principal
amount of Eighteen Million Dollars
($18,000,000), made by the Trust in favor of
the Lender."
All references in the Guaranty to the Agreement
shall be deemed to refer to the Agreement as amended by the First Amendment.
All references in the Guaranty to a Loan shall
be deemed to refer to a loan made by the Lender to the Trust pursuant to the
Term Note.
All references in the Guaranty to the Guarantor
Security Agreement shall be deemed to refer to the Guarantor Security Agreement
(as defined in Section 4 of the Guaranty) as amended by the First Amendment to
Guarantor Security Agreement, dated as of the date hereof (but effective as of
May 5, 1993), by and among the Guarantor and the Lender.
2. Ratification of Guaranty. The Guarantor hereby
ratifies and confirms all of the terms and provisions of the Guaranty as
amended hereby.
3. Applicable Law. This First Amendment to
Guaranty, the obligations of the Guarantor and the rights of the Lender and all
subsequent holders of the Term Note hereunder shall be governed by, construed
and enforced in accordance with the laws of the State of New York without
regard to the choice of law provisions thereof.
4. Headings. Section headings in this First
Amendment to Guaranty are included herein for convenience of reference only and
shall not constitute a part of the Guaranty for any other purpose.
23
3
IN WITNESS WHEREOF, this First Amendment to Guaranty
has been executed and delivered on behalf of the Guarantor by an officer
thereunto duly authorized as of the day and year first above written.
ST. PAUL BANCORP, INC.
By: _________________________
Name:
Title:
24
EXHIBIT D
FIRST AMENDMENT TO
PLEDGE AND SECURITY AGREEMENT
THIS FIRST AMENDMENT TO PLEDGE AND SECURITY AGREEMENT,
dated as of June 30, 1993 (but effective as of May 5, 1993), by and between (i)
ST. PAUL BANCORP, INC., a Delaware corporation (the "Pledgor"), and (ii)
NATIONAR, a trust company organized under the laws of the State of New York
(the "Secured Party");
W I T N E S S E T H:
WHEREAS, the Pledgor, the Secured Party and St. Paul
Federal Bank For Savings Employee Stock Ownership Trust (the "Trust") are
parties to a Term Loan Agreement, dated as of November 21, 1991, as amended by
a First Amendment to Term Loan Agreement (the "First Amendment"), dated as of
the date hereof (but effective as of May 5, 1993), (as so amended, the
"Agreement"), pursuant to which the Secured Party has agreed to make one or
more loans to the Trust in the aggregate principal amount of up to Eighteen
Million Dollars ($18,000,000.00) (the "Loans") for the purpose of enabling the
Trust to purchase from time to time, in open market purchases, shares (the
"Pledged Shares") of the common stock, par value $.01 per share, of the
Pledgor;
WHEREAS, in connection with the transactions
contemplated by the Agreement, the Pledgor and the Secured Party have entered
into a Pledge and Security Agreement, dated as of November 22, 1991 (the
"Pledge Agreement"); and
WHEREAS, in connection with the transactions
contemplated by the First Amendment, the Pledgor and the Secured Party desire
to amend the terms and provisions of the Pledge Agreement in certain respects
as hereinafter set forth;
NOW, THEREFORE, in consideration of the Loans and the
transactions contemplated by the Agreement and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the Pledgor hereby agrees for the benefit of the Secured Party as follows:
1. Amendment to Pledge Agreement. The Pledge
Agreement is hereby amended in the following respects:
25
2
a. A new clause (c) is hereby added at
the end of Section 1 of the Pledge Agreement to read in full as follows:
"(c) Definitions. Unless otherwise defined
herein, all capitalized terms used herein are
used with the meanings given to such terms in
the Agreement."
A new definition of the term "Term Note" is
hereby added at the end of clause (c) of Section 1 to read in full as follows:
"Term Note" means the Amended and Restated Term
Note, dated as of the date hereof (but
effective as of May 5, 1993), in the principal
amount of Eighteen Million Dollars
($18,000,000), made by the Trust in favor of
the Secured Party."
All references in the Pledge Agreement to the
Agreement shall be deemed to refer to the Agreement as amended by the First
Amendment.
All references in the Pledge Agreement to Loans
shall be deemed to refer to loans made by the Secured Party pursuant to the
Term Note.
All references in the Pledge Agreement to the
Guaranty shall be deemed to refer to the Guaranty, as amended by the First
Amendment to Guaranty, dated as of the date hereof (but effective as of May 5,
1993), made by the Pledgor in favor of the Secured Party.
b. Amendment to Section 2. Section 2 of
the Pledge Agreement is hereby amended to read in full as follows:
"2. Secured Obligations. This Pledge
Agreement secures, and the Pledged Collateral
is collateral security for, the prompt payment
in full when due, whether by acceleration or
otherwise, of (i) the principal of and interest
on the Term Note, (ii) all other obligations
and liabilities of the Trust to the Secured
Party pursuant to the provisions of, or arising
on account or as a result of the breach of, the
Agreement and (iii) all obligations and
liabilities of the Pledgor to the Secured Party
pursuant to the provisions of, or arising on
account of or as a result of the breach
26
3
of, the Agreement, this Pledge Agreement and
the Guaranty, dated as of November 22, 1991, as
amended by a First Amendment to Guaranty, dated
as of the date hereof (but effective as of May
5, 1993) (as so amended, the "Guaranty"), made
by the Pledgor in favor of the Secured Party
pursuant to the provisions of the Agreement.
All such obligations are hereinafter
collectively referred to as the "Secured
Obligations."
c. Amendment to Section 3. Clause (b) of
Section 3 of the Pledge Agreement is hereby amended to read in full as follows:
"(b) Except as provided in clauses (d), (e)
and (f) of this Section 3, at all times prior
to indefeasible payment in full of all Secured
Obligations, the Pledgor agrees to maintain
with the Secured Party Pledged Collateral with
an aggregate fair market value equal to not
less than the minimum percentages of the
outstanding principal amount of the Loans
(including the amount of all interest which is
added to the outstanding principal amount of
the Loans pursuant to the terms of the
Agreement) set forth below:
(i) As long as the aggregate fair
market value of the Pledged Shares is greater
than ninety five percent (95%) of the
outstanding principal amount of the Loans, the
aggregate fair market value of the Pledged
Collateral held by the Secured Party hereunder
shall be not less than fifteen percent (15%) of
the outstanding principal amount of the Loans;
(ii) In the event that the
aggregate fair market value of the Pledged
Shares is equal to or less than ninety five
percent (95%) of the outstanding principal
amount of the Loans but greater than ninety
percent (90%) of the outstanding principal
amount of the Loans for a period of five
consecutive business days, the aggregate fair
market value of the Pledged Collateral held by
the Secured Party hereunder shall be not less
than twenty percent (20%) of the outstanding
principal amount of the Loans;
(iii) In the event that the
aggregate fair market value of the Pledged
Shares is equal to
27
4
or less than ninety percent (90%) of the
outstanding principal amount of the Loans but
greater than eighty five percent (85%) of the
outstanding principal amount of the Loans for a
period of five consecutive business days, the
aggregate fair market value of the Pledged
Collateral held by the Secured Party hereunder
shall be not less than twenty-five percent
(25%) of the outstanding principal amount of
the Loans;
(iv) In the event that the
aggregate fair market value of the Pledged
Shares is equal to or less than eighty five
percent (85%) of the outstanding principal
amount of the Loans but greater than eighty
percent (80%) of the outstanding principal
amount of the Loans for a period of five
consecutive business days, the aggregate fair
market value of the Pledged Collateral held by
the Secured Party hereunder shall be not less
than thirty percent (30%) of the outstanding
principal amount of the Loans;
(v) In the event that the aggregate
fair market value of the Pledged Shares is
equal to or less than eighty percent (80%) of
the outstanding principal amount of the Loans
but greater than seventy five percent (75%) of
the outstanding principal amount of the Loans
for a period of five consecutive business days,
the aggregate fair market value of the Pledged
Collateral held by the Secured Party hereunder
shall be not less than thirty-five percent
(35%) of the outstanding principal amount of
the Loans;
(iv) In the event that the
aggregate fair market value of the Pledged
Shares is equal to or less than seventy five
percent (75%) of the outstanding principal
amount of the Loans but greater than seventy
percent (70%) of the outstanding principal
amount of the Loans for a period of five
consecutive business days, the aggregate fair
market value of the Pledged Collateral held by
the Secured Party hereunder shall be not less
than forty percent (40%) of the outstanding
principal amount of the Loans;
(vii) In the event that the
aggregate fair market value of the Pledged
Shares is equal to
28
5
or less than seventy percent (70%) of the
outstanding principal amount of the Loans but
greater than sixty five percent (65%) of the
outstanding principal amount of the Loans for a
period of five consecutive business days, the
aggregate fair market value of the Pledged
Collateral held by the Secured Party hereunder
shall be not less than forty five percent (45%)
of the outstanding principal amount of the
Loans;
(viii) In the event that the
aggregate fair market value of the Pledged
Shares is equal to or less than sixty five
percent (65%) of the outstanding principal
amount of the Loans but greater than sixty
percent (60%) of the outstanding principal
amount of the Loans for a period of five
consecutive business days, the aggregate fair
market value of the Pledged Collateral held by
the Secured Party hereunder shall be not less
than fifty percent (50%) of the outstanding
principal amount of the Loans;
(ix) In the event that the
aggregate fair market value of the Pledged
Shares is equal to or less than sixty percent
(60%) of the outstanding principal amount of
the Loans but greater than fifty five percent
(55%) of the outstanding principal amount of
the Loans for a period of five consecutive
business days, the aggregate fair market value
of the Pledged Collateral held by the Secured
Party hereunder shall be not less than fifty
five percent (55%) of the outstanding principal
amount of the Loans;
(x) In the event that the aggregate
fair market value of the Pledged Shares is
equal to or less than fifty five percent (55%)
of the outstanding principal amount of the
Loans but greater than fifty percent (50%) of
the outstanding principal amount of the Loans
for a period of five consecutive business days,
the aggregate fair market value of the Pledged
Collateral held by the Secured Party hereunder
shall be not less than sixty percent (60%) of
the outstanding principal amount of the Loans;
and
(xi) In the event that the
aggregate fair market value of the Pledged
Shares is equal to
29
6
or less than fifty percent (50%) of the
outstanding principal amount of the Loans for a
period of five consecutive business days, the
aggregate fair market value of the Pledged
Collateral held by the Secured Party hereunder
shall be not less than the amount required so
that the total fair market value of the Pledged
Shares and the Pledged Collateral held by the
Secured Party hereunder shall be not less than
one hundred and fifteen percent (115%) of the
outstanding principal amount of the Loans.
The fair market value of the Pledged Shares and
the Pledged Collateral described above in each
instance is referred to as the "Minimum
Collateral Requirement." As used herein, the
term "fair market value" shall mean (a) with
respect to bonds or obligations described in
subclauses (i), (ii) or (iii) of Section 2(b)
hereof, the aggregate outstanding principal
balance of the respective bond or obligation as
of the applicable Valuation Date multiplied by
the average bid price for such bond or
obligation, as of the close of business on the
Business Day next preceding such valuation
date, as quoted in writing to the Secured
Party, with a copy to the Pledgor, by three
nationally recognized securities dealers
selected by the Secured Party and reasonably
satisfactory to the Pledgor, which make a
market in such bond or obligation as of the
applicable valuation date, (b) with respect to
any certificate of deposit or other obligation
described in subclause (iv) of Section 2(b)
hereof, the face amount represented by such
certificate and (c) with respect to the Pledged
Shares, the average of the closing price per
share on the National Association of Securities
Dealers Automated Quotation System -- National
Market System or the principal securities
exchange on which the Pledged Shares are
traded, in either case for the five consecutive
trading days immediately preceding the date of
determination. If at any time prior to
indefeasible payment in full of all Secured
Obligations the aggregate fair market value of
the Pledged Collateral and the Pledged Shares
held by the Secured Party is less than the
Minimum Collateral Requirement, the Pledgor
shall within five Business Days
30
7
(as defined in the Agreement) after written
request by the Secured Party (accompanied by a
computation of such fair market value for each
individual item of Pledged Collateral and for
the Pledged Shares) deliver and pledge to the
Secured Party hereunder and grant to the
Secured Party a first priority security
interest hereunder in and to items of
additional Acceptable Collateral with a fair
market which is sufficient, when added to the
fair market value of the Pledged Collateral and
Pledged Shares then held by the Secured Party,
to satisfy the Minimum Collateral Requirement.
If at any time any item of Pledged Collateral
held by the Secured Party hereunder shall no
longer constitute Acceptable Collateral, the
Pledgor shall within five Business Days after
written request by the Secured Party
(accompanied by a computation of fair market
value for each individual item of Pledged
Collateral and for the Pledged Shares) deliver
and pledge to the Secured Party hereunder and
grant to the Secured Party a first priority
security interest hereunder in and to items of
substitute Acceptable Collateral with a fair
market value which is sufficient, when added to
the fair market value of the Pledged Collateral
and Pledged Shares then held by the Secured
Party which constitutes Acceptable Collateral,
to satisfy the Minimum Collateral Requirement."
Clause (e) of Section 3 of the Pledge Agreement
is hereby amended to read in full as follows:
"(e) Notwithstanding clause (b) of this
Section 3, in the event that for a continuous
period of six months the aggregate fair market
value of the Pledged Shares is greater than or
equal to one hundred and twenty percent (120%)
of the outstanding principal amount of the
Loans measured at any time after April 29, 1993
(which period may be measured prospectively or
retrospectively from such date), the Pledgor
shall be permitted during the continuance of
such event to maintain with the Secured Party
Pledged Collateral with an aggregate fair
market value equal to not less than ten percent
(10%) of the outstanding principal amount of
the Loans. Provided that
31
8
the provisions of this clause (e) are satisfied
for the time periods set forth herein, the
Secured Party will release designated
individual items of Pledged Collateral to the
Pledgor within five Business Days of the
Pledgor's written request therefor (accompanied
by a computation which demonstrates
satisfaction of the provisions set forth in
this clause (e)), subject to the Secured
Party's right to require the delivery of
additional items of Pledged Collateral in the
future in accordance with the terms of this
Agreement."
Clause (f) of Section 3 of the Pledge Agreement
is hereby amended to read in full as follows:
"(f) Notwithstanding clause (b) of this
Section 3, in the event that for a continuous
period of six months the aggregate fair market
value of the Pledged Shares is greater than or
equal to one hundred and twenty-five percent
(125%) of the outstanding principal amount of
the Loans measured at any time after April 29,
1993 (which period may be measured
prospectively or retrospectively from such
date), the Pledgor shall be permitted during
the continuance of such event to maintain with
the Secured Party Pledged Collateral with an
aggregate fair market value equal to not less
than five percent (5%) of the outstanding
principal amount of the Loans. Provided that
the provisions of this clause (f) are satisfied
for the time periods set forth herein, the
Secured Party will release designated
individual items of Pledged Collateral to the
Pledgor within five Business Days of the
Pledgor's written request therefor (accompanied
by a computation which demonstrates
satisfaction of the provisions set forth in
this clause (f)), subject to the Secured
Party's right to require the delivery of
additional items of Pledged Collateral in the
future in accordance with the terms of this
Agreement."
2. Ratification of Agreement. Each of the Pledgor
and the Secured Party hereby ratifies and confirms all of the terms and
provisions of the Pledge Agreement as amended hereby.
32
9
3. Applicable Law. This First Amendment to Pledge
Agreement shall be governed by, construed and enforced in accordance with the
laws of the State of New York without regard to the choice of law provisions
thereof.
4. Counterparts. This First Amendment to Pledge
Agreement may be executed in one or more counterparts and by different parties
hereto in separate counterparts, each of which when so executed and delivered
shall be deemed to be an original and all of which counterparts shall taken
together constitute but one and the same instrument.
5. Headings. Section headings in this First
Amendment to Pledge Agreement are included herein for convenience of reference
only and shall not constitute a part of the Pledge Agreement for any other
purpose.
33
10
IN WITNESS WHEREOF, the Pledgor and the Secured Party
have caused this First Amendment to Pledge Agreement to be executed by their
respective officers thereunto duly authorized as of the day and year first
above written.
ST. PAUL BANCORP, INC.
By: ___________________________
Name:
Title:
NATIONAR
By: ___________________________
Name:
Title:
By: ___________________________
Name:
Title:
34
SCHEDULE I
Attached to and forming a part of that certain First
Amendment to Pledge and Security Agreement, dated as of June 30, 1993 (but
effective as of May 5, 1993), by and between St. Paul Bancorp, Inc., as
pledgor, and Nationar, as secured party.
Description of Pledged Collateral
Date: ____________, 1993
35
EXHIBIT E
FIRST AMENDMENT TO
REGISTRATION RIGHTS AGREEMENT
THIS FIRST AMENDMENT TO REGISTRATION RIGHTS AGREEMENT,
dated as of June 30, 1993 (but effective as of May 5, 1993), by and between ST.
PAUL BANCORP, INC., a Delaware corporation (the "Issuer"), and NATIONAR, a
trust company organized under the laws of the State of New York (the "Holder"),
W I T N E S S E T H:
WHEREAS, the Issuer, the Holder and St. Paul Federal
Bank For Savings Employee Stock Ownership Trust (the "Borrower") are parties to
a Term Loan Agreement, dated as of November 21, 1991, as amended by a First
Amendment to Term Loan Agreement (the "First Amendment), dated as of the date
hereof (but effective as of May 5, 1993) (as so amended, the "Agreement"),
pursuant to which the Holder has agreed to make loans to the Borrower in the
aggregate amount of up to Eighteen Million Dollars ($18,000,000.00)
(collectively, the "Loan") for the purpose of enabling the Borrower to purchase
shares (the "Shares") of common stock, par value $.01 per share, of the Issuer,
from time to time, in open market purchases;
WHEREAS, in connection with the transactions
contemplated by the Agreement the Borrower has entered into a Pledge and
Security Agreement, dated as of November 22, 1991, as amended by a First
Amendment to Pledge Agreement, dated as of the date hereof (but effective as of
May 5, 1993) (as so amended, the "Pledge Agreement"), in favor of the Holder
pursuant to which the Borrower has pledged and delivered the Shares purchased
with the proceeds of the Loan to the Holder and granted the Holder a perfected
first priority security interest in and to the Shares to secure the obligations
of the Borrower to the Holder pursuant to the Agreement;
WHEREAS, in connection with the transactions
contemplated by the Agreement, the Issuer and the Holder have entered into a
Registration Rights Agreement, dated as of November 22, 1991 (the "Registration
Rights Agreement"); and
WHEREAS, in connection with the transactions
contemplated by the First Amendment, the Issuer and the Holder desire to amend
the terms and provisions of the Registration
36
2
Rights Agreement in certain respects as hereinafter set forth;
NOW, THEREFORE, in consideration of the Loan and the
transactions contemplated by the Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, it
is agreed as follows:
1. Amendment to Registration Rights Agreement.
The Registration Rights Agreement is hereby amended in the following respects:
All references to the Pledge Agreement in the
Registration Rights Agreement shall be deemed to refer to the Pledge Agreement
as amended by the First Amendment to Pledge Agreement, dated as of the date
hereof (but effective as of May 5, 1993), by and between the Borrower and the
Holder.
All references to the Agreement in the
Registration Rights Agreement shall be deemed to refer to the Agreement as
amended by the First Amendment.
All references to the Loan in the Registration
Rights Agreement shall be deemed to refer to loans made by the Holder to the
Borrower pursuant to the Amended and Restated Term Note, dated as of the date
hereof (but effective as of May 5, 1993), referred to in the First Amendment.
2. Ratification of the Registration Rights
Agreement. Each of the Issuer and the Holder hereby ratifies and confirms all
of the terms and provisions of the Registration Rights Agreement as amended
hereby.
3. Applicable Law. This First Amendment to
Registration Rights Agreement shall be governed by, construed and enforced in
accordance with the laws of the State of New York without regard to the choice
of law provisions thereof.
4. Counterparts. This First Amendment to
Registration Rights Agreement may be executed in one or more counterparts and
by different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed to be an original and all of which
counterparts shall taken together constitute but one and the same instrument.
5. Headings. Section headings in this First
Amendment to Registration Rights Agreement are included herein for convenience
of reference only and shall not constitute a part of the Registration Rights
Agreement for any other purpose.
37
3
IN WITNESS WHEREOF, the Issuer and the Holder have
caused this First Amendment to Registration Rights Agreement to be executed by
their respective officers thereunto duly authorized as of the day and year
first above written.
ST. PAUL BANCORP, INC.
By: ___________________________
Name:
Title:
NATIONAR
By: ___________________________
Name:
Title:
By: ___________________________
Name:
Title:
38
EXHIBIT F
[Letterhead of Clifford M. Sladnick]
June __, 1993
Nationar
330 Madison Avenue
New York, New York 10017
Attention: Mr. George Scott, Jr.
Senior Vice President and
Chief Administrative Officer
Dear Sirs:
I have acted as counsel to Patrick J. Agnew, Joseph C. Scully,
Michael R. Notaro, Faustin A. Pipal and Alan J. Fredian (collectively, the
"Trustees") in their capacities as trustees of the St. Paul Federal Bank For
Savings Employee Stock Ownership Trust (the "Borrower"), a trust organized
under the Trust Agreement, dated March 26, 1987, between St. Paul Federal Bank
For Savings, a federal savings bank (the "Bank"), and the Trustees, in
connection with the execution and delivery of (i) a First Amendment to Term
Loan Agreement, dated as of the date hereof (but effective as of May 5, 1993)
(the "First Amendment to Term Loan Agreement"), by and between the Borrower,
St. Paul Bancorp, Inc., a Delaware corporation which is the bank holding
company of the Bank (the "Holding Company"), and you, (ii) an Amended and
Restated Term Note, dated as of the date hereof (but effective as of May 5,
1993), made by the Borrower in favor of you (the "Amended and Restated Term
Note") and (iii) a First Amendment to Pledge and Security Agreement, dated as
of the date hereof (but effective as of May 5, 1993), by and between the
Borrower and you (the "First Amendment to Pledge Agreement") and the
consummation of the transactions contemplated thereby. This opinion is being
delivered to you pursuant to Section 2(a) of the First Amendment to Term Loan
Agreement. All capitalized terms used herein and not otherwise defined herein
are used with the meanings given to such terms in the Term Loan Agreement,
dated as of November 21, 1991, by and among the Borrower, St. Paul Bancorp,
Inc., a Delaware corporation (the "Holding Company"), and you, as amended by
the First Amendment to Term Loan Agreement.
39
-2-
For purposes of rendering this opinion, I have examined the
First Amendment to Term Loan Agreement, the Amended and Restated Term Note, the
First Amendment to Pledge Agreement and such other documents and laws as I have
deemed necessary or appropriate. In rendering the opinion set forth below, I
have assumed the genuineness of all signatures on documents (other than the
signatures of the Trustees), the authenticity of all documents submitted to me
as originals, the conformity with the originals of all documents submitted to
me as copies and the valid authorization, execution and delivery of the First
Amendment to Term Loan Agreement and the First Amendment to Pledge Agreement by
you; I have no reason to believe that any such assumption is not reasonable.
Based upon the foregoing, I advise you that in my opinion:
1. The Trustees have all requisite legal capacity, power
and authority to execute and deliver the First Amendment to Term Loan
Agreement, the Amended and Restated Term Note and the First Amendment to Pledge
Agreement (collectively, the "Amended Documents") on behalf of the Borrower and
to perform its obligations thereunder in accordance with the terms thereof.
2. The Borrower is a trust duly organized and validly
existing under the laws of the State of Illinois.
3. The execution and delivery by the Trustees of the
Amended Documents on behalf of the Borrower and the consummation by the
Trustees of the transactions contemplated thereby have been duly authorized by
all requisite action on the part of the Trustees and no other proceedings on
the part of the Trustees are necessary or required under any law (other than
ERISA and the Code) to which the Trustees are subject, or any regulation
promulgated under any such law, for such execution, delivery and consummation.
4. Neither the execution, delivery or performance by the
Trustees of the Amended Documents on behalf of the Borrower, the consummation
by the Trustees of the transactions contemplated thereby, nor compliance by the
Trustees with the terms and conditions thereof will (i) violate any material
provision of any law or regulation, any order of any court or other agency of
government applicable to the Trustees, (ii) violate any provision of the ESOP
Plan or the ESOP Trust Agreement, (iii) violate any material provision of any
other indenture, agreement or other instrument to which the Trustees or the
Borrower is a party or by which the Trustees or the Borrower or any of the
properties or assets of the Trustees or the Borrower are bound, (iv) conflict
with, result in a breach of or constitute (with notice, lapse of time or both)
a default under the ESOP Plan or the ESOP Trust Agreement, (v) materially
conflict with, result in a material breach of, or constitute (with notice,
lapse of time or both) a material default under any other indenture, agreement
or other instrument to which the Trustees or the Borrower is a party or by
which the Trustees
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or the Borrower or any of the properties or assets of the Trustees or the
Borrower are bound or (vi) result in the creation or imposition of any material
lien, charge or encumbrance of any nature whatsoever upon any of the properties
and assets of the Trustees or the Borrower in favor of any Person other than
you.
5. All authorizations, consents or approvals from any
federal, state or local governmental, regulatory or administrative agency or
body and all filings with any such governmental, regulatory or administrative
agency or body required in connection with the execution and delivery by the
Trustees of the Amended Documents on behalf of the Borrower or the consummation
by the Trustees of the transactions contemplated thereby in accordance with the
terms thereof have been obtained or made, as the case may be.
6. Each of the Amended Documents has been duly and validly
authorized, executed and delivered by the Trustees on behalf of the Borrower
and constitutes the legal, valid and binding obligation of the Trustees,
enforceable against the Trustees in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency, moratorium or
other similar laws now or hereafter enacted affecting the enforceability of
creditors' rights generally.
7. Upon delivery of the Pledged Collateral by the Trustees
to you pursuant to the First Amendment to Pledge Agreement, you will have a
valid, enforceable and fully perfected lien on and security interest in the
Pledged Collateral prior to all other claims, liens or security interests
therein.
8. The transactions contemplated by the Amended Documents
are exempt from the provisions of Regulation G promulgated by the Board of
Governors of the Federal Reserve System, except for Section Section 207.3(a)
and 207.3(o) thereof.
9. There is no action, suit, inquiry, investigation or
proceeding pending or, to the best of my knowledge, threatened against or
affecting the Trustees, the Borrower or any of their respective properties or
assets.
Very truly yours,
_________________________
Clifford M. Sladnick
41
EXHIBIT G
[Letterhead of Clifford M. Sladnick]
June __, 1993
Nationar
330 Madison Avenue
New York, New York 10017
Attention: Mr. George Scott, Jr.
Senior Vice President and
Chief Administrative Officer
Dear Sirs:
I have acted as counsel to St. Paul Bancorp, Inc., a Delaware
corporation (the "Holding Company"), in connection with the execution and
delivery by the Holding Company of (i) a First Amendment to Term Loan
Agreement, dated as of the date hereof (but effective as of May 5, 1993) (the
"First Amendment to Term Loan Agreement"), by and between the St. Paul Federal
Bank For Savings Employee Stock Ownership Trust (the "Borrower"), the Holding
Company and you, (ii) a First Amendment to Guaranty, dated as of the date
hereof (but effective as of May 5, 1993), made by the Holding Company in favor
of you (the "First Amendment to Guaranty"), (iii) a First Amendment to Pledge
and Security Agreement, dated as of the date hereof (but effective as of May 5,
1993), by and between the Holding Company and you (the "First Amendment to
Guarantor Security Agreement") and (iv) a First Amendment to Registration
Rights Agreement, dated as of the date hereof (but effective as of May 5,
1993), by and between the Holding Company and you (the "First Amendment to
Registration Rights Agreement") and the consummation of the transactions
contemplated thereby. This opinion is being delivered to you pursuant to
Section 2(a) of the First Amendment to Term Loan Agreement. All capitalized
terms
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used herein and not otherwise defined herein are used with the meanings given
to such terms in the Term Loan Agreement, dated as of November 21, 1991, by and
among the Borrower, the Holding Company and you, as amended by the First
Amendment to Term Loan Agreement.
For purposes of rendering this opinion, I have examined the
First Amendment to Term Loan Agreement, the First Amendment to Guaranty, the
First Amendment to Guarantor Security Agreement, the First Amendment to
Registration Rights Agreement, the Certificate of Incorporation and Bylaws of
the Holding Company, the corporate records and proceedings of the Holding
Company, certificates of the Holding Company and public officials and such
other documents and such laws as I have deemed necessary or appropriate. In
rendering the opinion set forth below, I have assumed the genuineness of all
signatures on documents (other than signatures on behalf of the Holding
Company), the authenticity of all documents submitted to me as originals, the
conformity with the originals of all documents submitted to me as copies and
the valid authorization, execution and delivery of the First Amendment to Term
Loan Agreement, the First Amendment to Guarantor Security Agreement and the
First Amendment to Registration Rights Agreement by you; I have no reason to
believe that any such assumption is not reasonable.
Based upon the foregoing, I advise you that in my opinion:
1. The Holding Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware
and has all requisite power and authority to execute and deliver the First
Amendment to Term Loan Agreement, the First Amendment to Guaranty, the First
Amendment to Guarantor Security Agreement and the First Amendment to
Registration Rights Agreement (collectively, the "Amended Documents") and to
perform its obligations thereunder.
2. The execution and delivery by the Holding Company of
the Amended Documents and the consummation by the Holding Company of the
transactions contemplated thereby have been duly authorized by all requisite
corporate action on the part of the Holding Company. No other proceedings on
the part of the Holding Company are necessary or required under any law to
which the Holding Company is subject, or any rule or regulation promulgated
under any such law, for such execution, delivery and consummation.
3. Neither the execution, delivery or performance by the
Holding Company of the Amended Documents, the consummation by the Holding
Company of the transactions contemplated thereby, nor compliance by the Holding
Company with the terms and conditions thereof will (i) violate any material
provision of any law or regulation, any order of any court or other agency of
government
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applicable to the Holding Company or the Certificate of Incorporation or Bylaws
of the Holding Company, (ii) violate any material provision of any indenture,
agreement or other instrument to which the Holding Company is a party or by
which the Holding Company or any of its properties or assets are bound, (iii)
materially conflict with, result in a material breach of or constitute (with
notice, lapse of time or both) a material default under any such indenture,
agreement or other instrument or (iv) result in the creation or imposition of
any material lien, charge or encumbrance of any nature whatsoever upon any of
the properties and assets of the Holding Company in favor of any Person other
than you.
4. Except for the filings required upon the delivery of a
registration notice pursuant to the provisions of the Registration Rights
Agreement and pursuant to Section 4 of the Registration Rights Agreement, all
authorizations, consents or approvals from any federal, state or local
governmental, regulatory or administrative agency or body and all filings with
any such agency or body required in connection with the execution and delivery
by the Holding Company of the Amended Documents or the consummation by the
Holding Company of the transactions contemplated thereby in accordance with the
terms thereof have been obtained or made, as the case may be.
5. Each of the Amended Documents has been duly and validly
authorized, executed and delivered by the Holding Company and constitutes the
legal, valid and binding obligation of the Holding Company, enforceable against
the Holding Company in accordance with its terms, except as the enforceability
thereof may be limited by bankruptcy, insolvency, moratorium or other similar
laws now or hereafter enacted affecting the enforceability of creditors' rights
generally.
6. There is no action, suit, inquiry, investigation or
proceeding pending or, to the best of my knowledge, threatened against or
affecting the Holding Company or any of its properties or assets wherein an
unfavorable decision, ruling or finding could (i) impair in any material
respect the right or ability of the Holding Company or any Subsidiary to carry
on its business substantially as now conducted, (ii) result in any material
adverse change in the business, prospects, properties, rights, assets or
operations or in the condition (financial or otherwise) of the Holding Company
or any Subsidiary or (iii) adversely affect the validity or enforceability of
the Amended Documents or any of the other Loan Documents or the transactions
contemplated thereby.
7. The execution and delivery of the Amended Documents by
the parties thereto and the performance by the parties thereto of the
transactions contemplated thereby are exempt from being "prohibited
transactions" under the Code and ERISA.
8. Neither the Borrower nor the Bank is in breach of any
of its respective obligations under, or in violation of any
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provision of ERISA or the Code with respect to, the ESOP Trust Agreement or the
ESOP Plan.
9. The Shares purchased with the proceeds of the Term Loan
will be "qualifying employer securities" within the meaning of Section
4975(e)(8) of the Code for the Borrower.
10. The consideration paid by the Borrower for the Shares
purchased with proceeds of the Term Loan will not exceed "adequate
consideration" as defined in Section 3(18) of ERISA. No purchases of shares of
Holding Company Stock have been made by the Borrower from a person who is a
"party in interest" or a "disqualified person" as such terms are defined in
Section 3(14) of ERISA and Section 4975(e)(2) of the Code, respectively, in
which purchases the Borrower was charged any "commission" as defined in
Department of Labor regulation 29 C.F.R. Section 2550.408e-(e).
11. The authorized capital stock of the Holding Company
consists of 40,000,000 shares of common stock, par value $.01 per share, of
which _______________ shares are issued and outstanding as of the date hereof
and 10,000,000 shares of serial preferred stock, par value $.01 per share, none
of which are issued and outstanding as of the date hereof. All shares of
capital stock of the Holding Company outstanding on the date hereof are validly
issued, fully paid and nonassessable.
12. The transactions contemplated by the Amended Documents
do not violate Regulation T or Regulation U promulgated by the Board of
Governors of the Federal Reserve System and are exempt from the provisions of
Regulation G promulgated by the Board of Governors of the Federal Reserve
System, except for Section Section 207.3(a) and 207.3(o) thereof.
Very truly yours,
_____________________________
Clifford M. Sladnick