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Exhibit 10.1
SIXTH AMENDMENT TO RESTATED LOAN AGREEMENT
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THIS SIXTH AMENDMENT TO RESTATED LOAN AGREEMENT ("Amendment"), is
entered into as of the 31st day of May, 2001, by and between METROPOLITAN
FINANCIAL CORP., an Ohio Corporation (the "Borrower"), ROBERT M. KAYE (the
"Guarantor") and THE HUNTINGTON NATIONAL BANK (the "Bank").
WITNESSETH
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WHEREAS, the Borrower and the Bank entered into a Restated Loan
Agreement on October 16, 1996 which was effective as of February 22, 1995, and
which restated the Loan Agreement dated February 22, 1995 between the parties
hereto (such Loan Agreement, as amended by the amendments thereto and as
restated by such Restated Loan Agreement, as amended by the First Amendment
thereto dated March 31, 1998, the Second Amendment thereto dated December 18,
1998, the Third Amendment thereto dated May 28, 1999, the Fourth Amendment
thereto dated as of May 31, 2000, and the Fifth Amendment thereto dated July 28,
2000, is referred to herein as the "Loan Agreement"); and
WHEREAS, at the request of the Borrower, the Bank has agreed to modify
certain provisions of the Loan Agreement, including an extension of the maturity
date; and
WHEREAS, the Borrower and the Bank have agreed to further amend the
Loan Agreement as set forth herein and to enter into this Amendment to
effectuate such agreement. Terms defined in the Loan Agreement shall, unless
otherwise defined herein, have the meaning ascribed therein. All references to
"Paragraphs" or "Sections" herein are references to paragraphs and sections of
the Loan Agreement. and
NOW, THEREFORE, for valuable consideration, the sufficiency of which is
hereby acknowledged by the parties, the parties do hereby amend the Loan
Agreement and agree as follows:
1. The references to the Exhibit in the definition of "Note" and
in Section 2.04 are changed from "A-3" to"A-4 ", a copy of
which is attached hereto.
2. The two references to Twelve Million Dollars ($12,000,000.00)
in Section 2.02(A) are hereby changed to Six Million Dollars
($6,000,000.00).
3. Bank acknowledges that it holds 4,585,397 shares of stock of
Borrower as of the date of the execution of this Amendment.
4. Borrower and Guarantor acknowledge that the revolving feature
of the Note, as established in the original Loan Agreement, is
terminated with respect to Borrower's ability to draw
additional funds on the Note prior to maturity.
5. Borrower and Guarantor agree that a principal payment in the
amount of $1,000,000.00 shall be paid on the Note, on or
before December 31, 2001. Failure to make such principal
payment by such date shall constitute an Event of Default.
6. Guarantor has represented to Bank that he intends to purchase
additional shares of stock of the Borrower at a certain rights
offering which will be completed during the fourth quarter of
2001 (the "Rights Offering"). Guarantor agrees that any shares
purchased by him, either directly or beneficially, shall be
delivered to Bank as additional collateral to secure the Loan,
immediately
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upon Guarantor's receipt of such certificates. Guarantor
agrees that, in any and all events, following the Rights
Offering, the shares of the Borrower pledged to Bank will not
be less than 50% of all issued and outstanding shares of the
Borrower.
7. Section 2.02(B) is hereby deleted in its entirety. Any
references in the Loan Documents to letters of credit to be
issued by the Bank are hereby deleted, and the Borrower agrees
that the Bank shall have no obligation to issue any letters of
credit pertaining to the Borrower or the Borrower's customers.
8. Sections 2.05(A)(1), 2.05(A)(2) and 2.05(A)(3) are hereby
deleted in their entirety and the following is substituted in
lieu thereof:
"(1) Interest on the principal balance of the Loan, from time
to time outstanding, will be payable monthly with the first
payment due on August 30, 2001, at the Prime Rate in effect
from time to time. After maturity (whether maturity is brought
about by acceleration in the Event of Default or otherwise),
the interest rate shall be two hundred (200) basis points in
excess of the higher of-. (i) the interest rate in effect at
the time of such maturity or acceleration, as the case may be;
or (ii) the Prime Rate in effect from time to time.
(2) On December 31, 2002 (the "Maturity Date"), any and all
principal, interest, and other Obligations of the Borrower
remaining unpaid shall be paid in full by the Borrower. The
Borrower acknowledges and agrees that the Bank will not renew
and/or extend the Maturity Date beyond December 31, 2002."
Any references to such maturity date in any other Amendments
to the Loan Agreement are hereby correspondingly referenced to
Section 2.05(A)(2).
10. Any references in the Loan Documents to LIBOR borrowings are
hereby deleted in their entirety.
11. Section 2.05(A)(4) is hereby amended to be renumbered as new
Section 2.05(A)(3). Any references in the Loan Documents to
Section 2.05(A)(4) shall be amended to read "Section
2.05(A)(3)."
12. Notwithstanding any language to the contrary as referenced in
Section 2.10, the Borrower shall pay in full, or reimburse the
Bank promptly upon demand for all costs and expenses,
including without limitation reasonable attorneys' fees and
expenses (including the fees of the Bank's counsel, Porter
Wright Morris & Arthur LLP), expended or incurred by the Bank
in any arbitration, judicial reference, legal action or
otherwise in connection with (a) the negotiation and
preparation or the amendment or enforcement of this Amendment
and the Loan Documents, including without limitation, during
any workout, attempted workout, and/or in connection with the
rendering of legal advice as to the Bank's rights, remedies
and obligations under this Amendment and any of the Loan
Documents, whether or not any form of legal proceeding has
commenced, (b) collecting any sum which becomes due the Bank
under this Amendment or any of the Loan Documents, (c) any
proceeding for declaratory relief, any counterclaim to any
proceeding, or any appeal, (d) the protection, preservation or
enforcement of any rights or remedies of the Bank or any of
the Collateral whether or not any form of legal proceedings is
commenced, or (e) any action necessary to defend, protect,
assert, or preserve any of the Bank's rights or remedies as a
result of or related to any case or proceeding under Chapter
11 of the
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United States Code, as amended, or any similar law of any
jurisdiction. All of such costs and expenses shall bear
interest from the time of demand at the highest rate then in
effect under the Loan Documents or this Amendment.
13. The parties acknowledge that there have been violations of the
covenant relating to return on assets ("ROA") of Metropolitan
Bank and Trust provided for in Section 6.01(H) of the Loan
Agreement, and the Bank waives any such violations and the
parties shall reset such covenant on terms satisfactory to
Bank on or before August 31, 2001.
14. The Borrower and Guarantor, hereby release, remise, acquit and
forever discharge the Bank and the Bank's employees, agents,
representatives, consultants, attorneys, fiduciaries,
servants, officers, directors, partners, predecessors,
successors and assigns, subsidiary corporations, parent
corporations, and related corporate divisions (all of the
foregoing hereinafter called the "Released Parties"), from any
and all actions and causes of action, judgments, executions,
suits, debts, claims, demands, liabilities, obligations,
damages and expenses of any and every character, known or
unknown, direct and/or indirect, at law or in equity, of
whatsoever kind or nature, whether heretofore or hereafter
arising, for or because of any matter or things done, omitted
or suffered to be done by any of the Released Parties prior to
and including the date of execution hereof, and in any way
directly or indirectly arising out of or in any way connected
to this Amendment or any of the Loan Documents, including but
not limited to, claims relating to lender liability and claims
relating to any settlement negotiations (all of the foregoing
hereinafter called the "Released Matters"). The Borrower and
Guarantor acknowledge that the agreements in this paragraph
are intended to be in full satisfaction of all or any alleged
injuries or damages arising in connection with the Released
Matters. The Borrower and Guarantor represent and warrant to
Bank that they have not purported to transfer, assign or
otherwise convey any right, title or interest of the Borrower
or Guarantor in any Released Matter to any other Person and
that the foregoing constitutes a full and complete release of
all Released Matters.
15. Except as expressly provided herein, the Loan Documents shall
remain in full force and effect in accordance with their
respective terms, and this Amendment shall not be construed to
(a) impair the validity, perfection or priority of any lien or
security interest securing the Indebtedness; (b) waive or
impair any rights, powers or remedies of the Bank under the
Loan Documents upon the Maturity Date, with respect to any
Events of Default or otherwise; (c) constitute an agreement by
the Bank or require the Bank to extend the Maturity Date, or
grant additional extension periods, or extend the term of the
Loan Agreement or the time for payment of any of the
Indebtedness; or (d) make any loans or other extensions of
credit to the Borrower after the Maturity Date. The Borrower
acknowledges and agrees that, notwithstanding the foregoing
and except as modified by this Amendment, (e) the Bank
reserves the right to enforce each and every term of this
Amendment, the Loan Agreement and the other of the Loan
Documents; (f) the Bank's actions in entering into this
Amendment shall not be construed as a waiver or relinquishment
of, or estoppel to assert, any of the Bank's rights under the
Loan Documents or applicable law; and (g) the Bank's actions
in entering into this Amendment are without prejudice to the
Bank's right to pursue any and all remedies available to it on
or after the Maturity Date or immediately upon the occurrence
of any Event of Default.
In the event of any inconsistency between the terms of this
Amendment and any of the Loan Documents, this Amendment shall
govern. The Borrower and Guarantor acknowledge that they have
consulted with counsel and with such other experts and
advisors as they deem it necessary in connection with the
negotiation, execution and delivery of this Amendment. This
Amendment
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shall be construed without regard to any presumption or rule
requiring that it be construed against the party causing this
Amendment or any part hereof to be drafted.
16. Guarantor acknowledges that he executed and delivered to the
Bank a certain Guaranty of Borrower's Obligations to the Bank
on various dates, including but not limited to that certain
Guaranty dated July 28, 2000 (collectively, the "Guaranty"),
and hereby affirms, ratifies and restates his obligations to
the Bank under the Guaranty. The Obligations shall include the
Obligations as defined in the Guaranty and as modified
pursuant to the Loan Agreement. Guarantor further acknowledges
that he executed and delivered to the Bank a certain Pledge
and Collateral Assignment Agreement on various dates,
including but not limited to that certain Pledge and
Collateral Assignment Agreement dated December 18, 1998
(collectively, the "Pledge Agreement"), and hereby affirms,
ratifies and restates his pledge of shares of stock under the
Pledge Agreement, including but not limited to those shares of
stock evidenced by certificates previously delivered and now
in the Bank's possession. Guarantor agrees to execute new
Pledge and Collateral Assignment Agreements as may be
requested by bank to facilitate Guarantor's pledge of
additional shares of Borrower to Bank. Guarantor consents to
the modifications to the Loan Agreement as set forth herein.
17. JURY WAIVER. THE UNDERSIGNED AND THE BANK (BY ITS ACCEPTANCE
HEREOF) HEREBY VOLUNTARILY, KNOWINGLY, IRREVOCABLY AND
UNCONDITIONALLY WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE IN
RESOLVING ANY DISPUTE (WHETHER BASED UPON CONTRACT, TORT OR
OTHERWISE) BETWEEN OR AMONG THE UNDERSIGNED AND THE BANK
ARISING OUT OF OR IN ANY WAY RELATED TO THIS DOCUMENT, ANY
OTHER RELATED DOCUMENT, OR ANY RELATIONSHIP BETWEEN THE BANK
AND THE UNDERSIGNED. THIS PROVISION IS A MATERIAL INDUCEMENT
TO THE BANK TO PROVIDE THE FINANCING AND AMENDMENT DESCRIBED
HEREIN OR IN THE OTHER LOAN DOCUMENTS.
Except as otherwise provided, all amendments to the Loan Agreement set
forth herein shall be deemed effective from and after the date of this
Amendment. All references in the Loan Agreement to this "Agreement", "hereof',
"herein", "hereunder" or "hereby" shall, from and after the date of this
Amendment, be deemed references to the Loan Agreement as amended by this
Amendment.
In all other respects, the parties hereto hereby ratify and affirm the
terms and conditions of the Loan Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Amendment as of the day and year first above written.
METROPOLITAN FINANCIAL CORP.
/s/ Robert M. Kaye By: /s/ Kenneth T. Koehler
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Robert M. Kaye Kenneth T. Koehler, President
THE HUNTINGTON NATIONAL BANK
By: /s/ John R. Macks
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John R. Macks, Assistant Vice President