Exhibit 10.11
LOAN AGREEMENT
by and between
EMPLOYEE STOCK OWNERSHIP PLAN
TRUST
of
WESTFIELD FINANCIAL,
INC.
and
NEW WESTFIELD FINANCIAL,
INC.
Made and Entered Into as of
January 3, 2007
TABLE OF CONTENTS
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Page
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ARTICLE I
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DEFINITIONS
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Section 1.1 Business
Day
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1
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Section 1.2 Code
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1
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Section 1.3 Default
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1
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Section 1.4 ERISA
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2
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Section 1.5 Event
of Default
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2
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Section 1.6 Fiscal
Year
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2
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Section 1.7 Independent
Counsel
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2
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Section 1.8 Loan
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2
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Section 1.9 Loan
Documents
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2
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Section 1.10 Pledge
Agreement
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2
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Section 1.11 Principal
Amount
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2
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Section 1.12 Promissory
Note
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2
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Section 1.13 Register
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2
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ARTICLE II
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THE LOAN; PRINCIPAL AMOUNT;
INTEREST; SECURITY; INDEMNIFICATION
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Section 2.1 The
Loan; Principal Amount.
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2
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Section 2.2 Interest.
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3
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Section 2.3 Promissory
Note.
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4
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Section 2.4 Payment
of Trust Loan.
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4
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Section 2.5 Prepayment.
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5
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Section 2.6 Method
of Payments.
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6
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Section 2.7 Use
of Proceeds of Loan.
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7
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Section 2.8 Security.
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7
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Section 2.9 Registration
of the Promissory Note.
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7
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ARTICLE III
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REPRESENTATIONS AND WARRANTIES OF
THE BORROWER
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Section 3.1 Power,
Authority, Consents.
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8
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Section 3.2 Due
Execution, Validity, Enforceability.
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8
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Section 3.3 Properties,
Priority of Liens.
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8
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Section 3.4 No
Defaults, Compliance with Laws.
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8
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Section 3.5 Purchases
of Common Stock.
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8
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Page
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ARTICLE IV
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REPRESENTATIONS AND WARRANTIES OF
THE LENDER
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Section 4.1 Power,
Authority, Consents.
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9
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Section 4.2 Due
Execution, Validity, Enforceability.
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9
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Section 4.3 ESOP;
Contributions.
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9
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Section 4.4 Trustee;
Committee.
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9
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Section 4.5 Compliance
with Laws; Actions.
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10
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ARTICLE V
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EVENTS OF DEFAULT
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Section 5.1 Events
of Default under Loan Agreement.
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10
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Section 5.2 Lender’s
Rights upon Event of Default.
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10
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ARTICLE VI
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MISCELLANEOUS PROVISIONS
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Section 6.1 Payments
Due to the Lender.
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11
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Section 6.2 Payments.
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11
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Section 6.3 Survival.
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11
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Section 6.4 Modifications,
Consents and Waivers; Entire Agreement.
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11
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Section 6.5 Remedies
Cumulative.
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12
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Section 6.6 Further
Assurances; Compliance with Covenants.
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12
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Section 6.7 Notices.
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12
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Section 6.8 Counterparts.
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13
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Section 6.9 Construction;
Governing Law .
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13
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Section 6.10 Severability
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13
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Section 6.11 Binding
Effect; No Assignment or Delegation .
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14
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ii
LOAN
AGREEMENT
This LOAN AGREEMENT (“Loan
Agreement”) is made and entered into as of the 3
rd
day of January, 2007, by
and between the EMPLOYEE STOCK OWNERSHIP PLAN TRUST OF WESTFIELD
FINANCIAL, INC. (“Borrower”), a trust forming part of
the Employee Stock Ownership Plan of Westfield Financial, Inc.
(“ESOP”), acting through and by its Trustee, FIRST
BANKERS TRUST SERVICES, INC. (“Trustee”), a corporation
having an office at 2321 Kochs Lane, P.O. Box 4005, Quincy,
Illinois 62305-4005; and NEW WESTFIELD FINANCIAL, INC.
(“Lender”), a Massachusetts-chartered corporation,
having an office at 141 Elm Street, Westfield, Massachusetts
01085.
W I T N E S S E T
H :
W HEREAS , the ESOP Committee of the Lender
(“Committee”) has authorized the Borrower to purchase
shares of common stock of New Westfield Financial, Inc.
(“Common Stock”), either directly from New Westfield
Financial, Inc. or in open market purchases in an amount not to
exceed 736,000 shares of commons stock (i.e., four percent
(4%) of the total number of shares of Common Stock sold in the
offering in connection with the Amended and Restated Plan of
Conversion and Stock Issuance (the
“Reorganization”));
W HEREAS , the Committee has further authorized the
Borrower to borrow funds from the Lender for the purpose of
financing authorized purchases of Common Stock; and
W HEREAS , the Lender is willing to make a loan to the
Borrower for such purpose;
N OW ,
T HEREFORE
, the parties hereto agree 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:
Section 1.1
Business Day means any day other than a
Saturday, Sunday or other day on which banks are authorized or
required to close under federal law or the laws of the Commonwealth
of Massachusetts.
Section 1.2
Code means the Internal Revenue Code of 1986
(including the corresponding provisions of any succeeding
law).
Section 1.3
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 requirement of
notice or lapse of time.
Section 1.4
ERISA means the Employee Retirement Income
Security Act of 1974, as amended (including the corresponding
provisions of any succeeding law).
Section 1.5
Event of Default means an event or condition
described in Article V.
Section 1.6
Fiscal Year means the fiscal year of New
Westfield Financial, Inc.
Section 1.7
Independent Counsel means Thacher
Proffitt & Wood LLP or other counsel mutually satisfactory
to both the Lender and the Borrower.
Section 1.8
Loan means the loan described in section
2.1.
Section 1.9
Loan Documents means, collectively, this 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.
Section 1.10
Pledge Agreement means the agreement described
in section 2.8(a).
Section 1.11
Principal Amount means the face amount of the
Promissory Note, determined as set forth in section
2.1(c).
Section 1.12
Promissory Note means the promissory note
described in section 2.3.
Section 1.13
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 amounts, and at such times, 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 aggregate amount paid by the Borrower,
exclusive of commissions, fees and other charges, to purchase a
number of shares of Common Stock not to exceed 736,000 shares of
Common Stock (i.e., four percent (4%) of the shares of Common
Stock sold in connection with the Reorganization).
2
(b) Subject to the limitations of
section 2.1(a), the Borrower shall determine the amounts borrowed
under this Agreement, and the times 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 (i) 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 and
(ii) on and after the earliest date on which Common Stock is
listed or admitted to trading on an established market (including
but not limited to the American Stock Exchange), while the Borrower
is in possession of funds previously advanced under this Agreement
that have not been used to purchase Common Stock.
(c) For all purposes of this Loan
Agreement, the Principal Amount on any date shall be equal to the
excess, if any, of:
(i) the aggregate amount disbursed
by the Lender pursuant to section 2.1(b) on or before such date;
over
(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 on 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
on the date of this Loan Agreement and continuing until the
Principal Amount shall be paid in full, at the rate of eight
percent (8%) per annum. Interest payable under this Agreement
shall be computed on the basis of a year of 360 days and months
consisting of 30 days each and actual days elapsed (including the
first day but excluding the last) occurring in the period to which
the computation relates.
(b) Except as otherwise provided in
this section 2.2(b), accrued interest on the Principal Amount shall
be payable by the Borrower annually in arrears commencing on the
last Business Day of the calendar year following the date of this
Agreement and continuing on the last Business Day of each calendar
year thereafter and upon the payment or prepayment of such Loan.
All interest on the Principal Amount shall be paid by the Borrower
in immediately available funds. The Lender shall remit to the
Borrower, at least three (3) Business Days before the end of
each calendar year, a statement of the interest payment due under
section 2.2(a) for such year; provided, however, that a delay or
failure by the Lender in providing the Borrower with such statement
shall not alter the Borrower’s obligation to make such
payment.
(c) Anything in this Loan Agreement
or the Promissory Note to the contrary notwithstanding, the
obligation of the Borrower to make payments of interest shall be
subject to
3
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 a
Promissory Note of the Borrower in substantially the form of
Exhibit A attached hereto, dated the date hereof, payable to the
order of the Lender in the Principal Amount and otherwise duly
completed.
Section 2.4
Payment of Trust Loan .
(a) The Principal Amount of the Loan
shall be repaid in annual installments payable on the last Business
Day of each December ending after the date of this Agreement. The
amount of each such annual installment shall be that portion of the
lesser of (i) that portion of the Principal Amount which will
result in the release for allocation to participants in the ESOP,
pursuant to the Pledge Agreement, of a cumulative fraction of the
Collateral (within the meaning of the Pledge Agreement and
determined as of the last Business Day of December, 2007) equal to
the percentage set forth in Column II below and (ii) that
portion of the Principal Amount which will result in the release
for allocation to participants in the ESOP, pursuant to the Pledge
Agreement, of Collateral (within the meaning of the Pledge
Agreement and valued as of the date of payment) having a value
equal to twenty-five percent (25%) of the compensation taken
into account under the ESOP for each person entitled to share in
such allocation taking into account all loans under the
ESOP:
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Column I
Installment Due on
Last Business Day of
December in
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Column II
Cumulative Fraction of
Collateral Released
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2007
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1/30
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2008
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2/30
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2009
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3/30
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2010
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4/30
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2011
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5/30
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2012
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6/30
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2013
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7/30
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2014
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8/30
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2015
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9/30
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2016
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10/30
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2017
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11/30
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2018
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12/30
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4
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Column I
Installment Due on
Last Business Day of
December in
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Column II
Cumulative Fraction of
Collateral Released
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2019
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13/60
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2020
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14/30
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2021
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15/30
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2022
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16/30
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2023
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17/30
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2024
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18/30
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2025
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19/30
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2026
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20/30
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2027
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21/30
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2028
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22/30
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2029
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23/30
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2030
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24/30
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2031
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25/30
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2032
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26/30
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2033
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27/30
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2034
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28/30
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2035
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29/30
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2036
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30/30
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; provided, however, that the
Borrower shall not be required to make any payment of principal due
to be made in any Fiscal Year to the extent that such payment would
not be deductible from federal income tax purposes for such Fiscal
Year under Section 404 of the Code. Principal payments may be
deferred to the extent that such payments would be in excess of the
amount described above or otherwise would be nondeductible for
federal income tax purposes. Any payment not required to be made
pursuant to clause (ii) of the above provision shall be
deferred to and be payable on the earlier of the thirtieth
(30th) anniversary of the loan origination date or the last
day of the first Plan Year in which such proviso would not apply to
alleviate a requirement of payment; and payment not required to be
made pursuant to the immediately preceding sentence shall be
deferred to and be payable on the last day of the first Plan Year
in which such payment may be made on a tax deductible
basis.
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. 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 first to the
installment of principal due and payable in the Fiscal Year in
which the prepayment is made and second in the order of the
maturity of the
5
remaining installments 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, not later than 3:00 P.M., Eastern Standard
time, 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 such payment is
in fact made.
(b) Notwithstanding anything to the
contrary contained in this Loan Agreement or the Promissory Note,
neither the Borrower nor the Trustee shall be obligated to make any
payment, repayment or prepayment on the Promissory Note or take or
refrain from taking any other action hereunder or under 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 or the Trustee to engage in any
“prohibited transaction” as such term is defined in
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 or the Trustee or both, as the case may be, may
act or refrain from acting pursuant to this section 2.6(b) on the
basis of an opinion of Independent Counsel. The Borrower and the
Trustee may consult with Independent Counsel, and any opinion of
such Independent 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 Independent Counsel. Nothing contained in this section
2.6(b) shall be construed as imposing a duty on either the Borrower
or the Trustee to consult with Independent Counsel. Any obligation
of the Borrower or the Trustee to make any payment, repayment or
prepayment on the Promissory Note or to take 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 the Trustee, 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).
6
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:
(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 a Pledge Agreement in the form
attached hereto as Exhibit B; and
(ii) execute and deliver, or cause
to be executed and delivered, such other agreements, 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 prepayment of the
Principal Amount is made, a number of shares of Common Stock held
as Collateral pursuant to section 6.4 of the ESOP.
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 surrendered. 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 all other purposes. A notation shall be
made on each new Promissory Note of the amount of all payments of
principal and interest theretofore paid.
7
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF
THE BORROWER
To the actual knowledge of the
Trustee, 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 the 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, have 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.
Section
3.5 Purchases 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 provision of law or conflicts
with or results in a breach of or creates (with or without the
giving of notice or 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 transactions