EXHIBIT 10.11
DEPOSITORY AGREEMENT
THIS DEPOSITORY AGREEMENT (the "Agreement") is made and entered into as
of the 9th day of June, 2003, by and between Blue River Bancshares, Inc. ("Blue
River") and Unified Financial Services, Inc. ("Unified").
WITNESSETH
WHEREAS, Blue River is an Indiana corporation and a thrift holding
company, with its principal office located in Shelbyville, Indiana; and
WHEREAS, Blue River is the sole owner, directly or indirectly, of all
of the outstanding capital stock of Shelby County Bank ("SCB"), a federal
savings banking association located in Shelbyville, Indiana; and
WHEREAS, Unified is a Delaware corporation and a thrift holding
company, with its principal office located in Lexington, Kentucky; and
WHEREAS, Unified is the sole owner, directly or indirectly, of all of
the outstanding capital stock of Unified Banking Company ("UBC"), a federal
savings bank located in Lexington, Kentucky; and
WHEREAS, Blue River and Unified have entered into that certain Stock
Purchase Agreement, dated as of the date hereof (the "Stock Purchase
Agreement"), whereby Blue River will purchase from Unified, all of the
outstanding capital stock of UBC; and
WHEREAS, Blue River will, subsequent to the consummation of the Stock
Purchase Agreement, operate SCB and UBC under separate charters; and
WHEREAS, pursuant to the Stock Purchase Agreement, and as a condition
precedent to and as a material inducement for Blue River to consummate the Stock
Purchase Agreement, Unified has agreed to execute this Agreement and be bound by
the provisions herein.
NOW, THEREFORE, in consideration of the premises herein and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Blue River and Unified agree as follows:
MINIMUM BALANCE REQUIREMENT
Minimum Balance.
During the Term (as defined in Section 2.01) Unified,
together with its Affiliates (as defined in Section
1.02), shall not maintain a Deposit (as defined in
Section 1.04) with any entity other than SCB or UBC
until such time as Unified, together with its
Affiliates, maintains an aggregate average daily
minimum Deposit balance in Qualifying Accounts with
either or both of UBC and SCB, such average minimum
daily Deposit balance in Qualifying Accounts to be
computed on a quarterly basis, of Eight Million Five
Hundred Thousand and No/100 Dollars ($8,500,000.00)
(the "Minimum Deposit Balance").
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Notwithstanding anything to the contrary contained herein,
Unified and/or its Affiliates shall not be required
to maintain any Deposits at either SCB or UBC for any
period during the Term in which (i) either SCB or
UBC, under Federal banking regulations, is deemed to
be other than "well capitalized" for purposes of its
(A) total risk-based capital ratio, (B) Tier 1
risk-based capital ratio and (C) leverage ratio, (ii)
UBC has a ratio of non-performing loans to total
loans in excess of five percent (5.0%) or (iii) UBC
has a total loan loss reserve less than the level of
non-performing assets (the amount of the loan loss
reserve is less than the amount of non-performing
assets) (each, a "Capital Event"). Following the
occurrence of a Capital Event, neither Unified nor
any of its Affiliates shall be required to comply
with the provisions of this Agreement until such time
as Blue River shall certify to Unified that there no
longer exists a Capital Event with respect to either
SCB or UBC. Following receipt by Unified of such
certifying notice from Blue River, Unified shall, as
soon as commercially practicable, move all Deposits
back to either SCB or UBC.
Affiliates. For purposes of this Agreement the term "Affiliates" shall
mean and include any majority owned subsidiary or affiliate of Unified, whether
a corporation, limited liability company, limited partnership or general
partnership; provided, however, the term "Affiliates" shall not mean or include
any corporation, limited liability company, limited partnership or general
partnership in which Unified acquires a majority ownership interest after the
date of this Agreement.
Qualifying Accounts. The balances of the following types of accounts
may be aggregated in the calculation of the Minimum Deposit Balance and shall be
referred to as "Qualifying Accounts": (i) non-interest bearing demand deposit
accounts (DDA), and (ii) such other types of accounts as the parties may from
time agree in writing.
Deposit. For purposes of this Agreement the term "Deposit" shall mean
and include any amount of money held by Unified and/or its Affiliates in (i)
demand deposit accounts (DDA), (ii) NOW accounts, (iii) savings accounts, (iv)
checking accounts, (v) money market deposit accounts, (vi) time deposits, (vii)
sweep accounts, and (viii) any other such accounts as are of the same general
type and character as the accounts listed in this Section 1.04, at any bank,
brokerage house or other financial or depository entity other than SCB or UBC;
provided, however, the term "Deposit" shall not include (i) any trading account
of Unified Financial Securities, Inc. at any of its clearing broker-dealers,
(ii) any deposit by Unified Financial Securities, Inc. at any broker-dealer that
is required by such broker-dealer for Unified Financial Securities, Inc. to
utilize such broker-dealer's clearing services, (iii) any deposit by any
subsidiary or affiliate of Unified with the National Securities Clearing
Corporation, (iv) any Deposit of Fiduciary Counsel, Inc., (v) any deposit of
Unified Trust Company, National Association ("UTC") for which UTC is bound by a
legal or fiduciary obligation to receive a reasonable rate of interest, (vi) any
account in the name of Unified Fund Services, Inc., or any successor thereto,
for which Unified Fund Services, Inc. serves as an agent or fiduciary of another
party, including, inter alia, mutual fund redemption accounts, control
disbursement accounts, wire transfer accounts, concentration accounts and
custody accounts, or (vii) any deposit of "seed" money by Unified Fund Services,
Inc. or any successor thereto, into a registered investment company.
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Trust Accounts. Subject to legal restrictions relating to, or the
fiduciary duty of, UTC to its trust customers, UTC shall, at the option of Blue
River, deposit the cash balance of its trust accounts in an interest bearing
account of either SCB or UBC, which account shall pay a rate of interest
sufficient to allow UTC to satisfy any legal or fiduciary obligation, until such
time as the Minimum Deposit Balance has been satisfied.
Default. Each event of Unified maintaining a Deposit with an entity
other than SCB or UBC during a period in which the Minimum Deposit Balance in
Qualifying Accounts at SCB and UBC is less than the amount of Eight Million Five
Hundred Thousand and No/100 Dollars ($8,500,000.00) shall constitute a default
("Default") under this Agreement and entitle Blue River to Liquidated Damages as
described in Section 5.01.
Terms of Account Relationship. The terms of the account relationship
between Unified or any of its Affiliates and UBC or SCB, as the case may be,
shall be governed by the business deposit account agreement which Unified or any
of its Affiliates and UBC or SCB, as the case may be, executes at the time the
account is opened.
Quarterly Certification.
During the Term, Unified, upon the request of Blue River,
shall deliver to Blue River, by January 15th, April
15th, July 15th and October 15th of each year, a
certificate, substantially in the form attached
hereto as Appendix A, of its chief financial officer
(the "Certificate") certifying compliance by Unified
with the terms of this Agreement during the preceding
quarter.
During the Term, Blue River shall deliver to Unified, by
January 15th, April 15th, July 15th and October 15th
of each year, a certificate of its chief financial
officer certifying to Unified that no Capital Event
has occurred with respect to either SCB or UBC during
the preceding quarter to the execution date of such
certificate (the "Blue River Certificate"). In the
event Blue River fails to timely deliver a Blue River
Certificate, neither Unified nor any of its
Affiliates shall be required to comply with the
provisions of this Agreement until such time as Blue
River shall deliver the required Blue River
Certificate to Unified.
Right of Audit. Upon not less than fourteen (14) days' prior notice to
Unified by Blue River, provided such notice is delivered by Blue River within
thirty (30) days of its receipt of the Certificate contemplated in Section 1.07
hereof, Blue River shall have the right to inspect or cause an audit, to be
conducted by an independent certified public accountant, of such of the books,
accounts and records of Unified as are necessary to verify the information
contained in the Certificate. Such audit shall be conducted at the cost and
expense of Blue River; provided, however, in the event that such audit
determines that the Certificate is materially incorrect, Unified shall reimburse
Blue River for all costs and expenses related to or arising out of such audit;
provided, further, however, a Certificate shall not be deemed to be materially
incorrect if it overstates the aggregate average daily Deposit balance in
Qualifying Accounts for such quarter by an amount equal to or less than Two
Hundred Fifty Thousand and No/100 Dollars ($250,000.00).
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EFFECTIVE DATE; TERM
Effective Date. This Agreement shall be effective as of the closing
date of the Stock Purchase Agreement (the "Effective Date"). In the event the
Stock Purchase Agreement is terminated prior to consummation of the Transaction
(as defined in the Stock Purchase Agreement), this Agreement shall automatically
terminate, without any action required by either party hereto.
Term. This Agreement shall be in continuous and uninterrupted effect
for a term (the "Term") commencing on the Effective Date and ending on the third
anniversary of the Effective Date.
REPRESENTATIONS AND WARRANTIES OF BLUE RIVER
Corporate Power; Authorization; and Enforceability. Blue River is a
corporation duly organized and validly existing under and by virtue of the laws
of the State of Indiana. Blue River has the requisite corporate power and
authority to enter into this Agreement and to perform its obligations hereunder.
This Agreement and its execution and delivery by Blue River have been duly
authorized and approved by the Board of Directors of Blue River and constitutes
a valid and binding obligation of Blue River, enforceable in accordance with its
terms, except to the extent limited by general principles of equity and public
policy and by bankruptcy, insolvency, reorganization, liquidation, moratorium,
readjustment of debt or other laws of general application relating to or
affecting the enforcement of creditors' rights.
No Violations. Neither the execution of this Agreement nor the
consummation of the transactions contemplated hereby (a) conflicts with or
violates Blue River's Articles of Incorporation or By-Laws; (b) conflicts with
or violates any local, state or federal law, statute, ordinance, rule or
regulation or any court or administrative judgment, order, injunction, writ or
decree applicable to Blue River; or (c) conflicts with, results in a breach of
or constitutes a default under any note, bond, indenture, mortgage, deed of
trust, license, agreement, contract, arrangement, commitment or other instrument
or obligation to which Blue River is a party or by which Blue River is subject
or bound.
Survival of Representations and Warranties. All of the representations
and warranties made by Blue River in this Agreement shall survive the Effective
Date.
REPRESENTATIONS AND WARRANTIES OF UNIFIED
Unified hereby represents and warrants to Blue River as follows:
Corporate Power; Authorization; and Enforceability. Unified is a
corporation duly organized and validly existing under and by virtue of the laws
of the State of Delaware. Unified has the requisite corporate power and
authority to enter into this Agreement and to perform its obligations hereunder.
This Agreement and its execution and delivery by Unified have been duly
authorized and approved by the Board of Directors of Unified and constitutes a
valid and binding obligation of Unified, enforceable in accordance with its
terms, except to the extent limited by general principles of equity and public
policy and by bankruptcy, insolvency, reorganization, liquidation, moratorium,
readjustment of debt or other laws of general application relating to or
affecting the enforcement of creditors' rights.
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No Violations. Neither the execution of this Agreement nor the
consummation of the transactions contemplated hereby (a) conflicts with or
violates Unified's Amended and Restated Certificate of Incorporation, as
amended, or By-Laws; (b) conflicts with or violates any local, state or federal
law, statute, ordinance, rule or regulation or any court or administrative
judgment, order, injunction, writ or decree applicable to Unified; or (c)
conflicts with, results in a breach of or constitutes a default under any note,
bond, indenture, mortgage, deed of trust, license, agreement, contract,
arrangement, commitment or other instrument or obligation to which Unified is a
party or by which Unified is subject or bound.
Litigation and Pending Proceedings. Except as set forth on Schedule
4.03 hereto, there are no claims, actions, suits, proceedings, arbitrations or
investigations pending or, to Unified's best knowledge, threatened in any court
or before any government agency or authority, arbitration panel or otherwise
(nor does Unified have any knowledge of a basis for any claim, action, suit,
proceeding, arbitration or investigation) which could prevent the performance of
this Agreement by Unified.
Survival of Representations and Warranties. All of the representations
and warranties made by Unified in this Agreement or in any Certificate furnished
hereunder shall survive the Effective Date.
LIQUIDATED DAMAGES
Liquidated Damages. The parties agree that, in the event of a Default
by Unified, as described in Section 1.06, actual damages suffered by Blue River
would be difficult and impractical to quantify. The parties therefore agree
that, in the event a Default by Unified for any quarterly period, Unified shall
pay to Blue River an amount equal to (a) (i) the Minimum Deposit Balance less
(ii) the aggregate average daily Deposit balance in Qualifying Accounts with
either or both of UBC and SCB for such quarter times (b) the Federal-funds
target rate, as published from time to time in The Wall Street Journal, Midwest
Edition or, if the difference between (a)(i) and (a)(ii) is greater than Two
Million and No/100 Dollars ($2,000,000.00) then the two year Treasury Rate, as
published from time to time in The Wall Street Journal, Midwest Edition, shall
be substituted for the Federal-funds target rate in this calculation, times (c)
(i) the number of days during the Term of this Agreement in such quarter divided
by (ii) 365. Unified specifically agrees that the amount of damages stipulated
is not greatly disproportionate to the loss likely to occur upon a Default by
Unified under this Agreement and that the sum is an adequate measure of damages,
and not a penalty.
MISCELLANEOUS
Assignment. This Agreement shall be binding upon and inure to the
benefit of the respective parties hereto and their respective successors and
assigns; provided, however, that this Agreement may not be assigned by either
party hereto without the prior written consent of the other party, which consent
shall not be unreasonably withheld.
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Amendment; Waiver.
This Agreement may be amended from time to time only by a
written instrument duly executed by the parties hereto.
Any term or provision of this Agreement may be waived at any
time by the party entitled to the benefit thereof by a
written instrument duly executed by such party. In the
event that a party hereto shall waive a term or
provision of this Agreement, such waiver shall be
effective only with respect to the specific term or
provision so waived and shall not be deemed a
continuing waiver with respect thereto, a waiver of
subsequent similar items or events or a waiver of any
other term or provision of this Agreement. No delay or
failure by either party to exercise any right under
this Agreement and no partial or single exercise of
that right shall constitute a waiver of that or any
other right, unless expressly provided in writing by
such party.
Notices. All notices, requests and other communications hereunder shall
be in writing (which shall include facsimile communication) and shall be deemed
to have been duly given if delivered by hand and receipted for, sent by
certified United States Mail, return receipt requested, first class postage
pre-paid, delivered by overnight express receipted delivery service or faxed if
confirmed immediately thereafter by also mailing a copy of such notice, request
or other communication by certified United States Mail, return receipt
requested, with first class postage pre-paid, as follows:
If to Blue River: with a copy to (which shall not
constitute notice):
Xxxxxxxx X. Xxxxxx Xxxxxxx X. Xxxxxxxxx, Esq.
President Xxxxx XxXxxxx LLP
Blue River Bancshares, Inc. Xxx Xxxxxxx Xxxxxx, Xxxxx 0000
00 X. Xxxxxxxxxx Street Indianapolis, Indiana 46204
Xxxxxxxxxxx, Xxxxxxx 00000 Telephone: (000) 000-0000
Telephone: (000) 000-0000 Fax: (000) 000-0000
Fax: (000) 000-0000
If to Unified: with a copy to (which shall not
constitute notice):
Xxxx X. Xxxx Xxxxx X. Xxxxxx, Esq.
President and Chief Executive Officer c/o Xxxxxxxx Xxxxxx LLP
Unified Financial Services, Inc. One US Bank Plaza
c/o 0000 Xxxxxxxxxxx Xxxx Xx. Xxxxx, Xxxxxxxx 00000
Xxxxxxxxx, Xxxxxxxx 00000 Telephone: (000) 000-0000
Telephone: (000) 000-0000 Fax: (000) 000-0000
Fax: (000) 000-0000
or such substituted address or person as any of them have given to the other in
writing.
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All such notices, requests or other communications shall be effective: (a) if
delivered by hand, when delivered; (b) if mailed in the manner provided herein,
three (3) business days after deposit with the United States Postal Service; (c)
if delivered by overnight express delivery service, on the next business day
after deposit with such service; and (d) if by facsimile, on the next business
day if also confirmed by mail in the manner provided herein.
Headings. The headings in this Agreement have been inserted solely for
ease of reference and should not be considered in the interpretation or
construction of this Agreement.
Severability. In case any one or more of the provisions contained
herein shall, for any reason, be held to be invalid, illegal or unenforceable in
any respect, such invalidity, illegality or unenforceability shall not affect
any other provision of this Agreement, but this Agreement shall be construed as
if such invalid, illegal or unenforceable provision or provisions had never been
contained herein.
Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but such counterparts shall
together constitute one and the same instrument.
Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Indiana, without reference to the
choice of law principles thereof. The parties hereto hereby agree that all
claims, actions, suits and proceedings between the parties hereto relating to
this Agreement shall be filed, tried and litigated only in the Circuit or
Superior Courts of Xxxxxx County, Indiana or the United States District Court
for the Southern District of Indiana - Southern Division. In connection with the
foregoing, the parties hereto consent to the jurisdiction and venue of such
courts and expressly waive any claims or defenses of lack of personal
jurisdiction of or proper venue by such courts.
Entire Agreement. This Agreement together with the Stock Purchase
Agreement supersedes any other prior understanding, commitment, representation,
negotiation or agreement, whether oral or written, between Unified and Blue
River relating to the transactions contemplated hereby and constitutes the
entire agreement between the parties hereto with respect to the subject matter
hereof.
Expenses. Except as provided otherwise herein, Unified and Blue River
shall each pay their respective expenses incidental to the transactions
contemplated hereby.
Enforcement. In the event either party shall file any suit or other
claim to enforce any provision of this Agreement, the prevailing party shall be
entitled to recover from the other party all of the prevailing party's costs and
expenses (including reasonable attorney's fees and court costs) of such
enforcement immediately upon final adjudication of the controversy.
Certain References. Whenever in this Agreement a singular word is used,
it also shall include the plural wherever required by the context and
vice-versa. Except expressly stated otherwise, all references in this Agreement
to periods of days shall be construed to refer to calendar, not business, days
Drafter of the Agreement. For purposes of construing this Agreement,
the parties agree that each has reviewed and had the opportunity to revise this
Agreement, and that he normal rule of construction to the effect that any
ambiguities are to be resolved against the drafting party shall not be employed
in the interpretation hereof.
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IN WITNESS WHEREOF, the parties hereto have duly executed or caused to be
executed this Agreement as of the day and year first above written.
BLUE RIVER BANCSHARES, INC.
By: _________________________________
Xxxxxxxx X. Xxxxxx
Its: President
UNIFIED FINANCIAL SERVICES, INC.
By: _________________________________
Xxxx X. Xxxx
Its: President and Chief Executive
Officer
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Appendix A
UNIFIED FINANCIAL SERVICES, INC.
ONE XX XXXX XXXXX, XXXXX 0000
XX. XXXXX, XXXXXXXX 00000
QUARTERLY CERTIFICATE
The undersigned ________________, the duly appointed and acting Chief
Financial Officer of Unified Financial Services, Inc. ("Unified") hereby
certifies in accordance with Section 1.07 of the Depository Agreement, dated as
of June ___, 2003 (the "Depository Agreement"), by and between Unified and Blue
River Bancshares, Inc. ("Blue River"), as set forth below. Capitalized terms
that are not otherwise defined herein shall have the meanings ascribed to them
in the Depository Agreement.
The aggregate average daily Deposit balance in Qualifying Account with either or
both of UBC and SCB, computed on a quarterly basis, for the preceding quarter
was ____________________; and (initial one)
______ During the quarter ended _____________, neither Unified, nor any of its
Affiliates maintained a Deposit with any entity other than UBC or SCB
(for any quarter during which Unified, together with its Affiliates,
failed to maintain an aggregate average daily Deposit balance in
Qualifying Accounts with either or both of UBC and SCB, for such
quarter, of at least Eight Million Five Hundred Thousand and No/100
Dollars ($8,500,000.00)); or
______ During the quarter ended _____________, (i) Unified, and/or one of its
Affiliates maintained a Deposit with any entity other than UBC or SCB
and (ii) Unified, together with its Affiliates, failed to maintain an
aggregate average daily Deposit balance in Qualifying Accounts with
either or both of UBC and SCB for such quarter, of Eight Million Five
Hundred Thousand and No/100 Dollars ($8,500,000.00). As a result,
Unified shall pay Liquidated Damages to Blue River in an amount
calculated pursuant to Section 5.01 of the Depository Agreement, which
is __________________________________ ($____________); or
______ During the quarter ended _____________, Unified, together with its
Affiliates, maintained an aggregate average daily Deposit balance in
Qualifying Accounts with either or both of UBC and SCB of at least
Eight Million Five Hundred Thousand and No/100 Dollars ($8,500,000.00).
IN WITNESS WHEREOF, I have hereupon set my hand as the Chief Financial
Officer of Unified as of this _____ day of _______________, 200__.
__________________________________
Printed: _________________________
Chief Financial Officer
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