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Exhibit
10.3
FORM OF
ESOP LOAN
AGREEMENT
THIS LOAN AGREEMENT
(“Loan Agreement”) is made and entered into as of the
day of
, 2008, by and between the FIRST SAVINGS BANK, F.S.B. EMPLOYEE
STOCK OWNERSHIP PLAN TRUST (“Borrower”), a trust
forming part of the First Savings Bank, F.S.B. Employee Stock
Ownership Plan (“ESOP”), and FIRST SAVINGS FINANCIAL
GROUP, INC. (“Lender”), a corporation organized and
existing under the laws of Indiana.
WITNESSETH
WHEREAS, the Borrower is
authorized to purchase shares of common stock of First Savings
Financial Group, Inc. (“Common Stock”), either directly
from First Savings Financial Group, Inc. or in open market
purchases in an amount not to exceed [
] (
) shares of Common Stock.
WHEREAS, the Borrower is
authorized to borrow funds from the Lender for the purpose of
financing authorized purchases of Common Stock; and
WHEREAS, the Lender is
willing to make a loan to the Borrower for such purpose.
NOW, THEREFORE, the parties
agree hereto as follows:
ARTICLE I
DEFINITIONS
The following definitions
shall apply for purposes of this Loan Agreement, except to the
extent that a different meaning is plainly indicated by the
context:
Business Day
means any day other than a Saturday, Sunday or other day on which
banks are authorized or required to close under federal or local
law or regulation.
Code means the
Internal Revenue Code of 1986, as amended (including the
corresponding provisions of any succeeding law).
Default means
an event or condition which would constitute an Event of Default.
The determination as to whether an event or condition would
constitute an Event of Default shall be determined without regard
to any applicable requirements of notice or lapse of
time.
ERISA means the
Employee Retirement Income Security Act of 1974, as amended
(including the corresponding provisions of any succeeding
law).
Event of
Default means an event or condition described in Article
5.
Loan means the
loan described in section 2.1.
Loan Documents
means, collectively, the Loan Agreement, the Promissory Note and
the Pledge Agreement and all other documents now or hereafter
executed and delivered in connection with such documents, including
all amendments, modifications and supplements of or to all such
documents.
Pledge
Agreement means the agreement described in section
2.8(a).
Principal
Amount means the face amount of the Promissory Note,
determined as set forth in section 2.1(c).
Promissory Note
means the promissory note described in section 2.3.
Register means
the register described in section 2.9.
ARTICLE II
THE LOAN; PRINCIPAL
AMOUNT;
INTEREST; SECURITY;
INDEMNIFICATION
Section 2.1 The
Loan; Principal Amount .
(a) The Lender hereby agrees
to lend to the Borrower such amount, and at such time, as shall be
determined under this Section 2.1; provided, however, that in
no event shall the aggregate amount lent under this Loan Agreement
from time to time exceed the greater of (i) [
] or (ii) the aggregate amount paid by the Borrower to
purchase up to [
] shares of Common Stock.
(b) Subject to the
limitations of Section 2.1(a), the Borrower shall determine
the amounts borrowed under this Agreement, and the time at which
such borrowings are effected. Each such determination shall be
evidenced in a writing which shall set forth the amount to be
borrowed and the date on which the Lender shall disburse such
amount, and such writing shall be furnished to the Lender by notice
from the Borrower. The Lender shall disburse to the Borrower the
amount specified in each such notice on the date specified therein
or, if later, as promptly as practicable following the
Lender’s receipt of such notice; provided, however, that the
Lender shall have no obligation to disburse funds pursuant to this
Agreement following the occurrence of a Default or an Event of
Default until such time as such Default or Event of Default shall
have been cured.
(c) For all purposes of this
Loan Agreement, the Principal Amount on any date shall be equal to
the excess, if any, of:
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(i) |
the aggregate amount disbursed by the Lender pursuant to
section 2.1(b) on or before such date; over |
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(ii) |
the aggregate amount of any repayments of such amounts made
before such date. |
The Lender shall maintain on the
Register a record of, and shall record in the Promissory Note, the
Principal Amount, any changes in the Principal Amount and the
effective date of any changes in the Principal Amount.
Section 2.2
Interest .
(a) The Borrower shall pay to
the Lender interest on the Principal Amount, for the period
commencing with the first disbursement of funds under this Loan
Agreement and continuing until the Principal Amount shall be paid
in full, at the rate of [
] percent (
%) per annum. Interest payable under this Agreement shall be
computed on the basis of a year of 365 days and actual days elapsed
(including the first day but excluding the last) occurring during
the period to which the computation relates.
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(b) Accrued interest on the
Principal Amount shall be payable by the Borrower on the dates set
forth in Schedule I to the Promissory Note. All interest on the
Principal Amount shall be paid by the Borrower in immediately
available funds.
(c) Anything in the Loan
Agreement or the Promissory Note to the contrary notwithstanding,
the obligation of the Borrower to make payments of interest shall
be subject to the limitation that payments of interest shall not be
required to be made to the Lender to the extent that the
Lender’s receipt thereof would not be permissible under the
law or laws applicable to the Lender limiting rates of interest
which may be charged or collected by the Lender. Any such payment
referred to in the preceding sentence shall be made by the Borrower
to the Lender on the earliest interest payment date or dates on
which the receipt thereof would be permissible under the laws
applicable to the Lender limiting rates of interest which may be
charged or collected by the Lender. Such deferred interest shall
not bear interest.
Section 2.3
Promissory Note .
The Loan shall be evidenced
by the Promissory Note of the Borrower attached hereto as an
exhibit payable to the order of the lender in the Principal Amount
and otherwise duly completed.
Section 2.4
Payment of Trust Loan .
The Principal Amount of the
Loan shall be repaid in accordance with Schedule I to the
Promissory Note on the dates specified therein until fully
paid.
Section 2.5
Prepayment .
The Borrower shall be
entitled to prepay the Loan in whole or in part, at any time and
from time to time; provided, however, that the Borrower shall give
notice to the Lender of any such prepayment; and provided, further,
that any partial prepayment of the Loan shall be in an amount not
less than $1,000. Any such prepayment shall be: (a) permanent
and irrevocable; (b) accompanied by all accrued interest
through the date of such prepayment; (c) made without premium
or penalty; and (d) applied on the inverse order of the
maturity of the installment thereof unless the Lender and the
Borrower agree to apply such prepayments in some other
order.
Section 2.6 Method
of Payments .
(a) All payments of
principal, interest, other charges (including indemnities) and
other amounts payable by the Borrower hereunder shall be made in
lawful money of the United States, in immediately available funds,
to the Lender at the address specified in or pursuant to this Loan
Agreement for notices to the Lender, on the date on which such
payment shall become due. Any such payment made on such date but
after such time shall, if the amount paid bears interest, and
except as expressly provided to the contrary herein, be deemed to
have been made on, and interest shall continue to accrue and be
payable thereon until, the next succeeding Business Day. If any
payment of principal or interest becomes due on a day other than a
Business Day, such payment may be made on the next succeeding
Business Day, and when paid, such payment shall include interest to
the day on which payment is in fact made.
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(b) Notwithstanding anything
to the contrary contained in this Loan Agreement or the Promissory
Note, the Borrower shall not be obligated to make any payment,
repayment or pre-payment on the Promissory Note if doing so would
cause the ESOP to cease to be an employee stock ownership plan
within the meaning of section 4975(e)(7) of the Code or qualified
under section 401(a) of the Code or cause the Borrower to cease to
be a tax exempt trust under section 501(a) of the Code or if such
act or failure to act would cause the Borrower to engage in any
“prohibited transaction” as such term is defined in the
section 4975(c) of the Code and the regulations promulgated
thereunder which is not exempted by section 4975(c)(2) or
(d) of the Code and the regulations promulgated thereunder or
in section 406 of ERISA and the regulations promulgated thereunder
which is not exempted by section 408(b) of ERISA and the
regulations promulgated thereunder; provided, however, that in each
case, the Borrower, may act or refrain from acting pursuant to this
section 2.6(b) on the basis of an opinion of counsel, and any
opinion of such counsel. The Borrower may consult with counsel, and
any opinion of such counsel shall be full and complete
authorization and protection in respect of any action taken or
suffered or omitted by it hereunder in good faith and in accordance
with such opinion of counsel. Nothing contained in this section
2.6(b) shall be construed as imposing a duty on the Borrower to
consult with counsel. Any obligation of the Borrower to make any
payment, repayment or prepayment on the Promissory Note or refrain
from taking any other act hereunder or under the Promissory Note
which is excused pursuant to this section 2.6(b) shall be
considered a binding obligation of the Borrower, or both, as the
case may be, for the purposes of determining whether a Default or
Event of Default has occurred hereunder or under the Promissory
Note and nothing in this section 2.6(b) shall be construed as
providing a defense to any remedies otherwise available upon a
Default or an Event of Default hereunder (other than the remedy of
specific performance).
Section 2.7 Use of
Proceeds of Loan .
The entire proceeds of the
Loan shall be used solely for acquiring shares of Common Stock, and
for no other purpose whatsoever.
Section 2.8
Security .
(a) In order to secure the
due payment and performance by the Borrower of all of its
obligations under this Loan Agreement, simultaneously with the
execution and delivery of this Loan Agreement by the Borrower, the
Borrower shall:
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(i) |
pledge to the Lender as Collateral (as defined in the Pledge
Agreement), and grant to the Lender a first priority lien on and
security interest in, the Common Stock purchased with the Principal
Amount, by the execution and delivery to the lender of the Pledge
Agreement attached hereto as an exhibit; and |
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(ii) |
execute and deliver, or cause to be executed and delivered,
such other agreement, instruments and documents as the Lender may
reasonably require in order to effect the purposes of the Pledge
Agreement and this Loan Agreement. |
(b) The Lender shall release
from encumbrance under the Pledge Agreement and transfer to the
Borrower, as of the date on which any payment or repayment of the
Principal Amount is made, a number of shares of Common Stock held
as Collateral determined pursuant to the applicable provisions of
the ESOP.
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Section 2.9
Registration of the Promissory Note .
(a) The Lender shall maintain
a Register providing for the registration of the Principal Amount
and any stated interest and of transfer and exchange of the
Promissory Note. Transfer of the Promissory Note may be effected
only by the surrender of the old instrument and either the
reissuance by the Borrower of the old instrument to the new holder
or the issuance by the Borrower of a new instrument to the new
holder. The old Promissory Note so surrendered shall be canceled by
the Lender and returned to the Borrower after such
cancellation.
(b) Any new Promissory Note
issued pursuant to section 2.9(a) shall carry the same rights to
interest (unpaid and to accrue) carried by the Promissory Note so
transferred or exchanged so that there will not be any loss or gain
of interest on the note surrender. Such new Promissory Note shall
be subject to all of the provisions and entitled to all of the
benefits of this Agreement. Prior to due presentment for
registration or transfer, the Borrower may deem and treat the
registered holder of any Promissory Note as the holder thereof for
purposes of payment and other purposes. A notation shall be made on
each new Promissory Note of the amount of all payments of principal
and interest theretofore paid.
ARTICLE III
REPRESENTATIONS AND
WARRANTIES OF THE BORROWER
The Borrower hereby
represents and warrants to the Lender as follows:
Section 3.1 Power,
Authority, Consents .
The Borrower has the power to
execute, deliver and perform this Loan Agreement, the Promissory
Note and Pledge Agreement, all of which have been duly authorized
by all necessary and proper corporate or other action.
Section 3.2 Due
Execution, Validity, Enforceability .
Each of the Loan Documents,
including, without limitation, this Loan Agreement, the Promissory
Note and the Pledge Agreement, has been duly executed and delivered
by the Borrower; and each constitutes the valid and legally binding
obligation of the Borrower, enforceable in accordance with its
terms.
Section 3.3
Properties, Priority of Liens .
The liens which have been
created and granted by the Pledge Agreement constitute valid, first
liens on the properties and assets covered by the Pledge Agreement,
subject to no prior or equal lien.
Section 3.4 No
Defaults, Compliance with Laws .
The Borrower is not in
default in any material respect under any agreement, ordinance,
resolution, decree, bond, note, indenture, order or judgment to
which it is a party or by which it is bound, or any other agreement
or other instrument by which any of the properties or assets owned
by it is materially affected.
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Section 3.5
Purchase of Common Stock .
Upon consummation of any
purchase of Common Stock by the Borrower with the proceeds of the
Loan, the Borrower shall acquire valid, legal and marketable title
to all of the Common Stock so purchased, free and clear of any
liens, other than a pledge to the Lender of the Common Stock so
purchased pursuant to the Pledge Agreement. Neither the execution
and delivery of the Loan Documents nor the performance of any
obligation thereunder violates any provisions of law or conflicts
with or results in a breach of or creates (with or without the
giving of notice of lapse of time, or both) a default under any
agreement to which the Borrower is a party or by which it is bound
or any of its properties is affected. No consent of any federal,
state, or local governmental authority, agency, or other regulatory
body, the absence of which could have a materially adverse effect
on the Borrower or the Trustee, is or was required to be obtained
in connection with the execution, delivery, or performance of the
Loan Documents and the transaction contemplated therein or in
connection therewith, including without limitation, with respect to
the transfer of the shares of Common Stock purchased with the
proceeds of the Loan pursuant thereto.
Section 3.6 ESOP;
Contributions .
As of the effective date of
the ESOP sponsor’s conversion, the ESOP and the Borrower will
be duly created, organized and maintained by the ESOP sponsor in
compliance with all applicable laws, regulations and rulings. The
ESOP will qualify as an “employee stock ownership plan”
as defined in section 4975(e)(7) of the Code. The ESOP provides
that the ESOP sponsor may make contributions to the ESOP in an
amount necessary to enable the Trustee to amortize the Loan in
accordance with the terms of the Promissory Note; provided,
however, that no such contributions shall be required if they would
adversely affect the qualification of the ESOP under section 401(a)
of the Code.
Section 3.7
Trustee .
The trustee of the ESOP has
been duly appointed by the ESOP sponsor.
Section 3.8
Compliance with Laws; Actions .
Neither the execution and
delivery by the Borrower of this Loan Agreement or any instruments
required thereby, nor compliance with the terms and provisions of
any such documents by the lender, constitutes a violation of any
provision of any law or any regulation, order, writ, injunction or
decree of any court or governmental instrumentality, or an event of
default under any agreement, to which the Borrower is a party, to
which the Borrower is bound or to which the Borrower is subject,
which violation or event of default would have a material adverse
effect on the Borrower. There is no action or proceeding pending or
threatened against either the ESOP or the Borrower before any court
or administrative agency.
ARTICLE IV
REPRESENTATIONS AND
WARRANTIES OF THE LENDER
The Lender hereby represents
and warrants to the Borrower as follows:
Section 4.1 Power,
Authority, Consents .
The Lender has the power to
execute, deliver and perform this Loan Agreement, the Pledge
Agreement and all documents executed by the Lender in connection
with the Loan, all of
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which have been duly authorized by all
necessary and proper corporate or other action. No consent,
authorization or approval or other action by any governmental
authority or regulatory body, and no notice by the Lender to, or
filing by the Lender with, any governmental authority or regulatory
body is required for the due execution, delivery and performance of
this Loan Agreement.
Section 4.2 Due
Execution, Validity, Enforceability .
This Loan Agreement and the
Pledge Agreement have been duly executed and deliver
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