EXHIBIT 10.10
TERMINATION AGREEMENT
Termination Agreement ("Agreement") dated into as of January
27, 2004, by and among Hawthorne Financial Corporation, a Delaware corporation
(the "Company"), Hawthorne Savings, FSB, a federally chartered savings bank (the
"Bank") and Fort Pitt Fund (the "Securityholder").
RECITALS
A. The Company, the Bank and the Securityholder are parties to
that certain Director Agreement dated as of December 12, 1995 (the "Director
Agreement").
B. The Company has advised the Securityholder that the Company's
Board of Directors has determined that it is advisable and in the best interests
of the Company and its stockholders to enter into an Agreement and Plan of
Merger among Commercial Capital Bancorp, Inc., CBBI Acquisition Corp. and the
Company ("Acquisition Agreement"). On consummation of the transactions
contemplated by the Acquisition Agreement, Commercial Capital Bancorp, Inc. will
acquire the Company and the Bank, and the shares of the Company's common stock
issued and outstanding immediately prior to the Effective Time (as such term as
defined in the Acquisition Agreement) will be converted into shares of Parent
Common Stock (as defined in the Acquisition Agreement).
C. The Company has advised the Securityholder that Commercial
Capital Bancorp, Inc., will not enter into the Acquisition Agreement unless the
Securityholder executes this Agreement.
D. The Securityholder has been advised of the terms of the
Acquisition Agreement and had the opportunity to discuss the Acquisition
Agreement with representatives of the Company and believes that consummation of
the transactions contemplated by the Acquisition Agreement will benefit the
Securityholder and, in order to obtain such benefits, the Securityholder desires
to enter into this Agreement.
Now, therefore, in consideration of the mutual promises as set forth
herein and for other valuable consideration the receipt of which is hereby
acknowledged, the parties agrees as follows:
1. Effective concurrently with the consummation of the
Merger (as defined Acquisition Agreement), the Director Agreement shall
terminate and no party to the Director Agreement shall have any further rights,
liabilities or obligations under the Director Agreement.
2. The Securityholder represents and warrants to and
agrees with the Company and the Bank as follows:
(a) The Securityholder has all requisite power
and authority to enter into this Agreement.
(b) This Agreement constitutes the valid and
legally binding obligation of the Securityholder.
(c) The Securityholder has not assigned any of
its rights and will not assign any of its rights under the Director Agreement.
(d) The Securityholder shall hold and treat all
information provided to it concerning the Acquisition Agreement in confidence
and will not disclose or permit any of its representatives to disclose in any
manner whatsoever any such information and will not acquire or permit any of its
representatives to acquire any shares of the Company common stock or the Parent
Common Stock until such time as the execution of the Acquisition Agreement and
the transactions contemplated thereby are publicly disclosed.
3. The Company represents and warrants to and agrees
with the Securityholder as follows:
(a) The Company has all requisite power and
authority to enter into this Agreement.
4. This Agreement shall terminate on the date, if any,
of termination of the Acquisition Agreement in accordance with its terms.
5. This Agreement supersedes all prior agreements,
written or oral, among the parties hereto with respect to the subject matter
hereof and contains the entire agreement among the parties with respect to the
subject matter hereof. This Agreement may not be amended, supplemented or
modified, and no provisions hereof may be modified or waived except by an
instrument in writing signed by each party hereto.
6. This Agreement may be executed in one or more
counterparts each of which shall be deemed to be an original but all of which
together shall constitute one in the same instrument.
7. This Agreement shall be deemed a contract made under,
and for all purposes shall be construed in accordance with, the laws of the
State of California, without reference to its conflict of law principles.
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Agreement as of the date first written above.
HAWTHORNE FINANCIAL CORPORATION
By: /s/ XXXXXX XXXXXXXXXXX
___________________________________
Xxxxxx Xxxxxxxxxxx
President & Chief Executive Officer
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HAWTHORNE SAVINGS BANK
By: /s/ XXXXXX XXXXXXXXXXX
___________________________________
Xxxxxx Xxxxxxxxxxx
President & Chief Executive Officer
FORT PITT FUND
By: /s/ XXXXX X. XXXXXXXXX
___________________________________
Xxxxx X. Xxxxxxxxx
President & Chief Executive Officer
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