AGREEMENT FOR
PURCHASE OF CERTAIN ASSETS AND
ASSUMPTION OF CERTAIN LIABILITIES
BETWEEN
REPUBLIC SECURITY BANK,
A FEDERAL SAVINGS BANK
AND
CENTURY BANK,
A FEDERAL SAVINGS BANK
DATED
OCTOBER 3, 1995
ARTICLE I
PURCHASE AND SALE OF ASSETS AND
ASSUMPTION OF DEPOSIT LIABILITIES................. 2
1.01 Sale of Assets........................................................ 2
1.02 Assignment and Assumption of Deposit Liabilities...................... 3
1.03 Purchase Price for Personal Property and Loans........................ 4
1.04 Payment for Assumption of Deposit Liabilities......................... 5
1.05 Assignment of Contracts............................................... 6
1.06 Prorations and Transfer Taxes......................................... 6
1.07 Closing Date and Place of Closing..................................... 6
1.08 Time for Delivery..................................................... 6
ARTICLE II
COVENANTS, REPRESENTATIONS AND WARRANTIES OF SELLER................... 7
2.01 Organization.......................................................... 7
2.02 List of Deposit Liabilities, Loans and Contracts...................... 7
2.03 Leases................................................................ 8
2.04 Personal Property..................................................... 8
2.05 Premises.............................................................. 8
2.06 Insurance............................................................. 9
2.07 Contracts, Consents and Other Agreements.............................. 9
2.08 Branch Office Employees............................................... 9
2.09 Changes In Wage Rates................................................. 9
2.10 Availability of Employees............................................. 9
2.11 Continuation of Benefits.............................................. 10
2.12 Access to Information................................................. 10
2.13 Preservation of Business, etc......................................... 10
2.14 Data Processing....................................................... 11
2.15 Accuracy of Exhibits.................................................. 11
2.16 Untrue Statements..................................................... 12
2.17 Litigation............................................................ 12
2.18 Compliance With Law................................................... 12
2.19 Conflicts............................................................. 12
2.20 Corporate Approval.................................................... 13
2.21 Regulatory Approval................................................... 13
2.22 Other Agreements...................................................... 13
2.23 Purchased Loans....................................................... 13
2.24 Seller's Indemnities and Assumptions.................................. 15
2.25 Warranties and Guaranties............................................. 16
2.26 Retirement Accounts................................................... 16
2.27 Notice of Change in Interest Rates.................................... 17
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ARTICLE III
COVENANTS, REPRESENTATIONS AND WARRANTIES OF PURCHASER................ 17
3.01 Organization.......................................................... 17
3.02 Corporate Approval.................................................... 17
3.03 Conflicts............................................................. 17
3.04 Regulatory Approval................................................... 17
3.05 Assumption of Contracts............................................... 17
3.06 Litigation............................................................ 18
3.07 Purchaser's Indemnities and Assumptions............................... 18
ARTICLE IV
DOCUMENTS AND TRANSFERS ON THE CLOSING DATE
AND THE ADJUSTMENT PAYMENT DATE................ 19
4.01 Closing Date - Seller................................................. 19
4.02 Closing Date - Purchaser.............................................. 21
4.03 Adjustment Payment Date - Seller...................................... 21
4.04 Adjustment Payment Date - Purchaser................................... 22
4.05 Designation of Additional Purchased Loans............................. 22
ARTICLE V
CONDITIONS TO OBLIGATIONS OF SELLER................................... 22
5.01 Compliance With Conditions............................................ 22
5.02 Truth of Warranties................................................... 22
5.03 Regulatory Approval................................................... 23
5.04 Opinion of Counsel.................................................... 23
5.05 Officers' Certificates................................................ 24
5.06 Cooperation After Closing............................................. 24
5.07 Validity of Assumption................................................ 24
5.08 Absence of Litigation................................................. 24
ARTICLE VI
CONDITIONS TO OBLIGATIONS OF PURCHASER................. 24
6.01 Compliance With Terms of Agreement.................................... 24
6.02 Truth of Warranties................................................... 24
6.03 Regulatory Approval................................................... 25
6.04 Opinion of Counsel.................................................... 25
6.05 Officers' Certificate................................................. 26
6.06 No Material Change.................................................... 26
6.07 Cooperation After Closing............................................. 26
6.08 Validity of Assumption................................................ 26
6.09 Absence of Litigation................................................. 26
6.10 Deposit Liabilities; Purchased Loans.................................. 26
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ARTICLE VII
COVENANT NOT TO COMPETE...................... 27
7.01 Covenant Not to Compete............................................... 27
7.02 Breach................................................................ 27
7.03 Waiver................................................................ 27
7.04 Judicial Modification................................................. 27
ARTICLE VIII
TERMINATION........................... 28
8.01 Termination........................................................... 28
8.02 Risk of Loss.......................................................... 29
ARTICLE IX
MISCELLANEOUS........................... 29
9.01 Expenses.............................................................. 29
9.02 Press Releases........................................................ 29
9.03 Nature and Survival of Representations and Warranties................. 29
9.04 Brokers............................................................... 29
9.05 Extensions and Waivers................................................ 29
9.06 Trade Names and Trademarks............................................ 30
9.07 Removal of Signs...................................................... 30
9.08 Amendments............................................................ 30
9.09 Further Assurances.................................................... 30
9.10 Binding Effect........................................................ 30
9.11 Notices............................................................... 30
9.12 Headings.............................................................. 31
9.13 Severability.......................................................... 31
9.14 Jurisdiction and Venue................................................ 32
9.15 Enforcement Costs..................................................... 32
9.16 Remedies Cumulative................................................... 32
9.17 Entire Agreement...................................................... 32
9.18 Governing Law......................................................... 32
EXHIBITS
A Description of Personal Property
B. Purchased Loans
C Premises Documents
D Insurance Policies for Branch Office
E Consent of Landlord
F Employees
G Employee Benefits, Plans and Agreements
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AGREEMENT
FOR
PURCHASE OF CERTAIN ASSETS AND
ASSUMPTION OF CERTAIN LIABILITIES
THIS AGREEMENT FOR PURCHASE OF CERTAIN ASSETS AND ASSUMPTION OF CERTAIN
LIABILITIES (the "Agreement") dated as of October 3, 1995 between Republic
Security Bank, a federally-chartered savings bank in stock form ("Purchaser"),
and Century Bank, a federally-chartered savings bank in stock form ("Seller").
WHEREAS, Seller operates a branch savings bank office in a free-standing
premises located at:
00000 Xxxxxxxxxx Xxxxxxxxx
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
(the "Branch Office"); and
WHEREAS, Seller desires to sell and transfer and Purchaser desires to
acquire certain assets and assume certain liabilities in connection with the
operation of the Branch Office including: (a) title to certain personal property
used in the operation of the Branch Office; (b) that certain lease for the
Branch Office premises (the "Premises") dated October 31, 1972, by and between
Fidelity Federal Savings Bank of Florida ("Fidelity"), as tenant, and Xxxxxxx X.
Xxxxx, as landlord, as subsequently assigned by Fidelity to Seller (the
"Premises Lease"); (c) certain time, savings and checking deposit accounts which
are maintained at the Branch Office; and (d) certain Purchased Loans (as defined
below).
NOW, THEREFORE, in consideration of the above premises and the mutual
covenants and agreements hereinafter set forth, Seller and Purchaser agree as
follows:
ARTICLE I
PURCHASE AND SALE OF ASSETS AND
ASSUMPTION OF DEPOSIT LIABILITIES
1.01 SALE OF ASSETS. Upon the terms and conditions set forth in this
Agreement, Seller shall sell and convey to Purchaser, and Purchaser shall
purchase from Seller, certain of the assets used in connection with the
operation of the Branch Office including:
A. PERSONAL PROPERTY. The leasehold improvements and
personal property owned by Seller and specifically set forth on the attached
EXHIBIT A, generally including, without limitation, fixtures, furniture,
equipment, materials, machine and equipment operations manuals, supplies, safe
deposit box keys, vault and drawer cash, subject to audit verification at the
close of business on the Closing Date (as defined
below), security deposits, telephone and fax numbers used by Seller in
connection with the Branch Office, checks deposited to Deposit Liabilities (as
defined below) and returned for insufficient funds or as doubtful of collection,
subject nevertheless to collection, and savings and checking deposit records and
customer records related thereto (collectively, the "Personal Property"), but
excluding proprietary signage inserts of Seller. Notwithstanding the foregoing,
Purchaser may reject any item of the Personal Property at any time on or prior
to Closing, in which case the consideration to be paid under Section 1.03A shall
be reduced appropriately.
B. PURCHASED LOANS. Those loans set forth on the attached
EXHIBIT B plus those additional loans which may be selected by Purchaser and
Seller pursuant to Section 4.05 hereof prior to the Closing Date (the "Purchased
Loans ").
C. CONTRACTS. Those contracts relating to the operation
of the Branch Office as specifically selected by Purchaser pursuant to Section
3.06 hereof including, without limitation, the Premises Lease and safe deposit
box rental agreements (the "Selected Contracts").
1.02 ASSIGNMENT AND ASSUMPTION OF DEPOSIT LIABILITIES. Upon the terms
and conditions set forth in this Agreement, Seller shall assign to Purchaser and
Purchaser shall assume all liabilities for payment of the withdrawal value of
all outstanding savings, checking, money-market and certificate of deposit
accounts, including individual retirement and Xxxxx accounts, at the Branch
Office existing as of the close of business on the Closing Date (the "Deposit
Liabilities"). Deposit Liabilities shall not include (i) any pledged deposits or
accounts unless said pledged deposits or accounts secure a Purchased Loan as
described in Section 1.01B of this Agreement; (ii) any commercial demand
deposits maintained pursuant to commercial loans; and (iii) overdraft checking
privileges. Deposit Liabilities shall include interest accrued thereon but not
credited to the withdrawal value of the appropriate account as of the close of
business on the Closing Date.
On the Closing Date, Seller shall provide a final customer list of the
Deposit Liabilities. Within fifteen (15) days after the date of this Agreement,
Seller shall notify the holders of the accounts comprising the Deposit
Liabilities to be assumed that, subject to closing requirements, Purchaser will
be assuming the liability of the accounts and shall set out the details of the
administration of the assumed accounts. Such notice shall be subject to the
prior approval by Purchaser, and Purchaser agrees to assist Seller in preparing
such notice. Holders of accounts opened subsequent to the date of the
notification contemplated above and the Closing Date will be given a copy of the
Seller's notification letter by Seller at the time the account is opened.
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With respect to the Deposit Liabilities, the parties agree as follows:
A. DIRECT DEPOSIT ACCOUNTS. Seller will provide to
Purchaser, no less than ten (10) nor more than thirty (30) days prior to the
Closing Date, a list of its Automated Clearing House ("ACH") entries for
electronic transfer accounts domiciled at the Branch Office. At the Closing (as
defined below), Purchaser will provide ACH originators with account number
conversion tapes or other documentary information. Seller will continue to
accept and forward to Purchaser ACH entries and corresponding funds related the
Deposit Liabilities for one hundred twenty (120) days following the Closing
Date. Seller will notify Purchaser of receipt of any such funds within
twenty-four (24) hours of receipt. Following the expiration of the 120-day
period, Seller may discontinue accepting and forwarding ACH entries and funds
and return them to the originators marked "Account Closed," and Seller shall not
be liable for any account overdrafts which may be thereby created.
B. CHECKING ACCOUNTS. Within twenty (20) days after the
Closing Date, Purchaser will provide holders of checking accounts, new checks
bearing appropriate Magnetic Ink Character Recognition ("MICR") encoding with
Purchaser's routing and transit numbers and the Purchaser's identification
number. Seller will forward to Purchaser checks received by it drawn on accounts
which are part of the Deposit Liabilities for a period of forty-five (45) days
following the Closing Date. After the 45-day period, Seller will return these
items marked "Account Closed" or "Refer to Maker" and Purchaser will have no
responsibility for the returned items. Purchaser accepts full responsibility to
either pay the items or return them in accordance with the customer agreement
and applicable law. During such 45-day period, Seller will give Purchaser a
daily accounting of debits to its clearing account. Purchaser shall promptly
reimburse Seller for such debits. For a period of six (6) months after the
Closing Date, Seller agrees to provide research services for transactions
conducted prior to the transfer of the Deposit Liabilities to Purchaser.
C. INTEREST REPORTING. Seller shall report from January
1, 1995 of the year of the Closing through the Closing Date and Purchaser shall
report from the day after the Closing Date and thereafter all interest credited
to, interest withheld from and early withdrawal penalties charged to the Deposit
Liabilities. Said reports shall be made to the holders of these accounts and to
the applicable federal and state regulatory agencies.
1.03 PURCHASE PRICE FOR PERSONAL PROPERTY AND LOANS. The purchase price
for the Personal Property and Purchased Loans shall be equal to the sum of the
Personal Property Purchase Price (as defined below) and the Loans Purchase Price
(as defined below), as set forth in this Section 1.03.
A. PERSONAL PROPERTY. The purchase price for the
Personal Property shall be equal to the net book value of the Personal Property
reduced by the book value of
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'any such property which is not in working order (the "Personal Property
Purchase Price"). Net book value of the Personal Property shall mean the sum of
values at which the items of Personal Property are carried for financial
reporting purposes on the Seller's books at the close of business on the last
day of the calendar month immediately preceding the month of the Closing.
B. PURCHASED LOANS. The purchase price for the Purchased
Loans shall be equal to the outstanding principal balance of said loans, less
any discount or plus any premium specified by Seller with respect to each, and
accrued interest thereon as of the close of business on the Closing Date (the
"Loans Purchase Price"). Such aggregate principal balance of the Purchased
Loans, as adjusted for premiums or discounts, shall be hereinafter referred to
as the "Purchased Loans Base."
C. METHOD OF PAYMENT. The Personal Property Purchase
Price and the Estimated Loans Purchase Price (as defined below) shall be paid
at the time of the Closing as a credit against Seller's payment of the
Estimated Liabilities Price (as defined below).
1.04 PAYMENT FOR ASSUMPTION OF DEPOSIT LIABILITIES. In connection
with Purchaser's assumption of the Deposit Liabilities, Seller shall pay
Purchaser the Liabilities Price (as defined below).
A. LIABILITIES PRICE. The "Liabilities Price" shall be
equal to one hundred percent (100%) of the total amount of the Deposit
Liabilities, less a premium equal to the lesser of (i) four and one-half
percent (4.5%) of such total amount of Deposit Liabilities or (ii) $1,125,000,
calculated in all cases at the close of business on the Closing Date.
B. CALCULATION OF PAYMENT ON THE CLOSING DATE. At the
time of Closing, Seller shall pay to Purchaser the estimated amount of the
Liabilities Price based on Deposit Liabilities as of a date (the "Calculation
Date") mutually agreed by Seller and Purchaser no more than five (5) business
days prior to the Closing Date (the "Estimated Liabilities Price"). The Seller
shall pay the Estimated Liabilities Price, adjusted for the Personal Property
Purchase Price and the estimated amount of the Loans Purchase Price based on the
Purchased Loans Base as of the close of business on the Closing Date (the
"Estimated Loans Purchase Price"), to Purchaser in cash by federal funds wire on
the Closing Date.
C. CALCULATION OF ADJUSTMENT PAYMENT DATE. Within
fifteen (15) days after the Closing Date, an adjustment payment (the
"Adjustment Payment") shall be made by the appropriate party so that the total
amount paid by Seller equals the Liabilities Price adjusted for the credits of
the Personal Property Purchase Price and the Loans Purchase Price; provided,
that if the Adjustment Payment is more than two percent (2%) of the net amount
paid by Seller on the Closing Date, then the payor of the Adjustment Payment
shall pay to the payee an additional amount equal to the Adjustment Payment
multiplied
4
by the Federal Home Loan Bank of Atlanta overnight investment rate (determined
as of the date of the Adjustment Payment) for the period from and including the
day following the Closing Date to, but excluding, the date of the Adjustment
Payment. The Adjustment Payment shall be paid in cash by federal funds wire.
1.05 ASSIGNMENT OF CONTRACTS. Seller shall assign the Selected Contracts
to Purchaser, who shall assume all rights and obligations of Seller under the
Selected Contracts from and after the close of business on the Closing Date.
1.06 PRORATIONS AND TRANSFER TAXES. Amounts due and payable or prepaid
relating to Selected Contracts (including rent under the Premises Lease),
property, intangible and tangible taxes, safe deposit box rents, Savings
Association Insurance Fund ("SAIF") insurance premiums, or other prepaid items
of a similar nature which are assigned to Purchaser, shall be adjusted ratably
to the Closing Date. Seller shall pay the amount of all documentary stamp taxes
and other transfer taxes imposed by the State of Florida and the county in which
the Branch Office is located, and all applicable municipal transfer taxes, as a
result of the transaction contemplated by this Agreement. Purchaser shall pay
the amount of all sales taxes imposed by the State of Florida or any other
governmental authority as a result of the transaction contemplated by this
Agreement. Utilities, including but not limited to phone, water, sewer, garbage,
electricity and gas, if applicable, shall be pro-rated as of the Closing Date.
Seller and Purchaser agree to cooperate with each other subsequent to the
Closing Date regarding the determination and payment of accurate prorations for
utilities.
1.07 CLOSING DATE AND PLACE OF CLOSING. Subject to satisfaction or
waiver of all the conditions set forth in Articles V and VI of this Agreement,
the Closing Date shall be on a date mutually agreed between Purchaser and
Seller, but in no event later than Friday, December 29, 1995. The Closing shall
be held on the Closing Date at 10:00 A.M. at the offices of Gunster, Yoakley,
Xxxxxx-Xxxxx & Xxxxxxx, P.A., 000 Xxxxx Xxxxxxx Xxxxx, Xxxxxxxx Point, Suite 000
Xxxx, Xxxx Xxxx Xxxxx, Xxxxxxx. The day of the Closing shall belong to the
Purchaser for purposes of prorating income and expenses.
1.08 TIME FOR DELIVERY. Except as otherwise provided in any delivery,
conveyance, assignment or transfer that is to be made on the Closing Date or the
date of the Adjustment Payment, shall be made by and as of the close of business
on such date in the manner and at the place reasonably requested in writing by
the party that is to receive such delivery, conveyance, assignment or transfer.
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ARTICLE II
COVENANTS, REPRESENTATIONS AND WARRANTIES OF SELLER
Seller covenants, represents and warrants to Purchaser as
follows:
2.01 ORGANIZATION. Seller is a federally-chartered stock savings bank,
validly existing and in good standing under the corporate laws of the United
States of America. Seller has all corporate power required to carry on its
business. Seller has and maintains all regulatory authorizations, licenses,
permits and certificates required to carry on its current business at the Branch
Office.
2.02 LIST OF DEPOSIT LIABILITIES, LOANS AND CONTRACTS. As soon as is
reasonably possible, but in any event not more than ten (10) days after the
execution of this Agreement, Seller at its sole cost and expense shall deliver
the following items, current (except as otherwise specified herein) as of a date
not more than five (5) days prior to the date of delivery to Purchaser:
A. DEPOSIT LIABILITIES. A schedule of all savings,
checking, money-market and certificate of deposit accounts, including Deposit
Liabilities, maintained at the Branch Office as of the close of business on July
31, 1995, and such other historical account records as are in possession of
Seller, certified by the Chief Financial Officer or Treasurer of Seller to be
true and accurate. Such schedule shall include the account number and type of
account for each deposit account, interest rate paid for each applicable
interest period, the maturity date, if any, the principal balance of and
interest paid for each applicable interest period and such other information as
may be necessary and desirable for the proper administration of such accounts
and claims made with respect thereto.
B. LOANS. A list of all loans of Seller which Seller
desires to make available for purchase by Purchaser to the extent expected to
remain outstanding on the Closing Date (the "Branch Office Loans"), certified
by the Chief Financial Officer or Treasurer of Seller to be true and accurate.
C. CONTRACTS. A list of all oral and written contracts
to which Seller is a party (including the Premises Lease) that are necessary
for or in any way relate to the operation of the Branch Office or Seller's
business therein and, if written, a copy of each such contract.
D. OPERATING EXPENSES. A schedule of operating expenses,
excluding employee salary and benefits, of the Branch Office for the twelve (12)
months preceding the date of this Agreement, if available, or if such schedule
is not available, the best available information regarding such operating
expenses.
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2.03 LEASES. Except as set forth in the list provided pursuant to Section
2.02C, no real or personal property used in conjunction with the operation of
the Branch Office or the Seller's business therein is leased by Seller.
2.04 PERSONAL PROPERTY. To the best of Seller's knowledge, the Personal
Property is in good condition, reasonable wear and tear excepted, and is
suitable for the business conducted at the Branch Office. Seller warrants that
it is the owner of and has good and marketable title to the Personal Property
free and clear of all debts, liens, security interests and encumbrances except
as may be otherwise set forth in this Agreement, none of which will materially
affect the value or use of such Personal Property.
2.05 PREMISES. EXHIBIT C consists of true and correct copies of all
documents and agreements relating to the Premises in the possession of Seller,
including the Premises Lease and any amendment or modifications thereto in the
possession of Seller. The Seller has a leasehold interest in the Premises under
and pursuant to the Premises Lease and related documents. The Seller has
performed all obligations required to be performed by it relating to the
Premises under and pursuant to the Premises Lease. The Seller is not in breach
of, or default under, the Premises Lease in any respect, and no event or action
has occurred, is pending, or is threatened, which after the giving of notice, or
the lapse of time, or otherwise, would constitute or result in a breach or
default in any respect by the Seller under the Premises Lease. The Seller has
not received written notice that the landlord of the Premises intends to cancel,
suspend or terminate the Premises Lease or to exercise or not exercise any
options under the Premises Lease. Such Premises have access to public roads and
to all utilities used in the operation of the Branch Office as conducted on such
Premises. All buildings, structures and appurtenances located on the Premises,
including drive-through facilities, are in good operating condition and in a
state of good repair, and are adequate and suitable for the purposes for which
they are being used. None of such buildings, structures, including drive-through
facilities, or appurtenances (or any equipment therein), nor the operation or
maintenance thereof, nor the operation of the Branch Office therein, violates
any documents or restrictive covenants or any provision of any federal, state or
local law, ordinance, rule or regulation, or encroaches on any property owned by
others. There are no special assessments affecting or relating to the Premises.
No work has been done upon, or materials delivered to, the Branch Office, or any
portion thereof, during Seller's occupancy pursuant to Seller's instructions
which is not fully paid for, nor does any person, firm or corporation now have
any lien rights with respect to the Branch Office or any part or parcel thereof
by reason of such work or material. No condemnation proceeding is pending or, to
the knowledge of the Seller, threatened which would preclude or impair the use
of any of the Premises by the Seller for the purposes for which it is currently
used. To the best of Seller's knowledge, during the Seller's occupancy of the
Premises, no hazardous or toxic materials have been disposed of on the Premises
or discharged to the surrounding or underlying ground or waters. To the best of
the Seller's knowledge, and without independent investigation, no hazardous or
toxic materials were disposed of on the Premises or
7
discharged to the surrounding or underlying ground or water prior to the
Seller's occupancy of the Premises.
2.06 INSURANCE. Attached hereto as EXHIBIT D is a list and brief
description of the policies of fire, liability and other forms of insurance held
by Seller in respect of and relating to the Branch Office or Personal Property.
Such policies are in amounts deemed by the management of Seller to be
sufficient, and Seller will keep such policies in such amounts duly in force
through the close of business on the Closing Date.
2.07 CONTRACTS, CONSENTS AND OTHER AGREEMENTS. The Seller has received a
valid consent to the assignment of the Premises Lease to Purchaser from the
current owner of the Premises, confirming the terms and validity of the Premises
Lease and the absence of any defaults by Seller thereunder, a copy of which is
attached hereto as EXHIBIT E. Seller shall use its best efforts to effect the
lawful and valid assignment of the other Selected Contracts designated by
Purchaser to Purchaser on the Closing Date, including without limitation, the
obtaining of all required consents to each such assignment from other parties to
the Selected Contracts. Seller agrees that, at any time and from time to time
after the Closing Date, Seller will, upon the request of Purchaser, do, execute,
acknowledge and deliver, or will cause to be done, executed, acknowledged and
delivered, all such further acts, deeds, assignments, transfers, conveyances,
powers of attorney or assurances as may be required for the valid assignment of
the Selected Contracts to Purchaser.
2.08 BRANCH OFFICE EMPLOYEES. Attached hereto as EXHIBIT F is a true and
complete list, as of the date of this Agreement, of all persons employed by
Seller at the Branch Office including each employee's position, job description,
length of service, and current annual rate of compensation. There is, and on the
Closing Date will be, no employment contract in force with any such person. No
such employee is covered by or subject to any collective bargaining agreement,
union contract or labor agreement. To the best of Seller's knowledge, there have
been no attempts to organize the Seller's employees at the Branch Office within
the last three (3) years.
2.09 CHANGES IN WAGE RATES. From the date of this Agreement to the Closing
Date, Seller shall make no change without prior written consent of Purchaser,
other than a change consistent with past practices and in no event greater than
four percent (4%), in the wage rates or salary scales applicable to employees
employed by Seller at the Branch Office.
2.10 AVAILABILITY OF EMPLOYEES. Seller will use its best efforts to
preserve for Purchaser the availability of all employees of Seller at the Branch
Office. Seller will afford to Purchaser the right, during normal business hours
or at any other time mutually agreed to by Purchaser and Seller, to contact and
to meet with Seller's employees at the Branch Office to discuss with them on a
general basis the transactions contemplated by this Agreement. Seller
acknowledges that Purchaser is
8
under no obligation to hire any of Seller's employees in connection with this
Agreement.
2.11 CONTINUATION OF BENEFITS. Each of the employees employed by Seller at
the Branch Office who at the Closing Date is receiving benefit payments for
disability due to sickness or accident under an existing insurance or
self-insured plan of Seller or to whom Seller is otherwise making such or
similar benefit payments shall without cost or expense to Purchaser continue to
receive such benefits during the continuance of such disability to the extent
provided in such insured plan or plans or agreements of Seller under which such
benefits are being paid.
Attached hereto as EXHIBIT G is an accurate and complete list of all
employment, consulting, bonus, incentive compensation, nonqualified deferred
compensation, termination or severance allowance, insurance (including, without
limitation, life, disability, medical and hospitalization insurance) and other
fringe benefit agreements, plans and commitments, that would continue to apply
to any employee of Seller who may continue as an employee of Purchaser after
completion of the transactions contemplated by this Agreement. Seller shall
deliver to Purchaser upon written request by Purchaser a copy of each such
agreement, plan, commitment, plan summary and indenture, and such other
information as deemed necessary by Purchaser.
2.12 ACCESS TO INFORMATION. From and after the date of this Agreement,
Seller shall, during normal business hours, afford the officers, attorneys,
accountants and other authorized representatives of Purchaser reasonable access
to the Branch Office and the books, records and properties of Seller pertaining
to the Branch Office (including the Branch Office Loans) in order that Purchaser
may have full opportunity to make such investigations as Purchaser shall
reasonably desire to make of the Branch Office and such books, records and
properties, and Purchaser shall be permitted to make extracts from, or copies
of, such books and records. Seller shall furnish to Purchaser such financial and
operating data and other information regarding the Branch Office as Purchaser
shall reasonably request, which information shall be kept confidential by
Purchaser. Information not specifically relating to the Branch Office
subsequently or heretofore obtained, other than information available to
Purchaser through independent sources or in the public domain, shall be kept
confidential by Purchaser and shall not be used by Purchaser otherwise than in
connection with this Agreement and operation of the Branch Office after the
Closing Date. In the event of termination of this Agreement, each party shall
keep confidential all information received by the other party. In the event of
any such termination, Purchaser shall return to Seller all documents received
from Seller, and all copies thereof, that include or evidence such information.
2.13 PRESERVATION OF BUSINESS, ETC. Between the date of execution of this
Agreement and the Closing Date, Seller: (a) shall preserve the Branch Office as
a going concern and operate such business only in the ordinary course in
accordance with its
9
past practices; (b) without the prior written consent of Purchaser, shall not
offer for savings and checking account deposits at the Branch Office any special
promotion or premium for new savings and checking accounts or additional
deposits to existing savings and checking accounts; (c) shall keep its books and
records in accordance with generally accepted accounting principles consistent
with the principles applied in the preceding fiscal year, except to the extent
that generally accepted accounting principles have been modified by federal law
or regulation; (d) shall not enter into any agreements relating to the Branch
Office other than such as are incidental to normal current operations; (e) shall
not institute any changes in wages, salaries or payments paid in connection with
the Branch Office except as provided in Section 2.09; (f) shall not, without the
prior written consent of Purchaser, make any commitments for Branch Office
expenditures of a capital nature for additional leasehold improvements or
personal property; (g) shall not effectuate or consent to any modification or
cancellation of any Selected Contract; (h) shall not dispose of any part of the
Branch Office without the consent of Purchaser; (i) shall make no changes in the
personnel employed at the Branch Office other than terminations for cause or
replacement of personnel; (j) shall not change any of its savings account
practices at the Branch Office, except as required by changes in applicable law
or industry-wide practice; (k) shall not take any action which would materially
affect Purchaser's rights hereunder or the assets to be acquired or liabilities
to be assumed hereunder; (l) shall not increase the interests rates payable on
any of the types of accounts at the Branch Office unless any such increases are
offered by the Seller at all of its other branches; and (m) shall not incur new
Deposit Liabilities (including by way of renewal of Deposit Liabilities existing
as of the date hereof) bearing interest rates in excess of those then being paid
by Purchaser on similar types of accounts (including, without limitation, any
certificates of deposits). Seller will use its best efforts to maintain the
Branch Office and Personal Property in customary repair, and preserve the
present relationships with all customers of the Branch Office and with entities
having business dealings with it through the Branch Office. Seller agrees to
provide to Purchaser, at the xxxx Xxxxxx provides such notice to its branch
offices, but in no event less than one business day prior to such change,
written notice of each change in interest rates to be paid on such types of
accounts throughout its branch offices generally, through the Closing Date.
2.14 DATA PROCESSING. At the close of business on the Closing Date, Seller
will provide reasonable assistance to Purchaser to convert the data base related
to the Deposit Liabilities and Purchased Loans to Purchaser's data base at
FIServe, Tampa, Florida.
2.15 ACCURACY OF EXHIBITS. True, complete and correct copies of contracts,
agreements, leases and other instruments listed on any exhibit hereto and noted
on the exhibit as having been furnished to Purchaser have been and will continue
to be made available to Purchaser by Seller. To the best of Seller's knowledge,
all exhibits, schedules or lists to be provided by Seller to Purchaser are or
will be when delivered, complete and accurate in all material respects. Seller
shall update on the Closing Date
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to the close of business on the Closing Date the information contained in any
such exhibit, schedule or list provided as of a date prior to the Closing Date
pursuant to this Agreement.
2.16 UNTRUE STATEMENTS. No representation or warranty by Seller in this
Agreement or any exhibit hereto, and/or any statement, schedule, list, or
officer's certificate furnished or to be furnished to Purchaser pursuant hereto
or in connection with the transactions contemplated hereby contains or will
contain, as of the date of delivery thereof or as amended or supplemented at the
Closing Date and at the Adjustment Payment Date, respectively, any untrue
statement of material fact, or omits or will omit to state any material fact,
necessary to make the statements contained herein or therein not misleading.
2.17 LITIGATION. There is no litigation, proceeding, examination or
investigation pending or, to the knowledge of Seller, threatened against or
relating to the Branch Office or business of Seller conducted on or from the
Branch Office or in connection therewith which would have a materially adverse
effect (a) on Seller's business at the Branch Office, (b) on the prospects of
such business, or (c) on the Branch Office, or which questions the validity of
any action taken or to be taken by Seller pursuant to or in connection with the
provisions of this Agreement; and Seller does not know and nor has any
reasonable grounds to know of any basis for any such action, or any governmental
investigation, examination or proceeding relative to the Branch Office or the
Seller's business conducted thereat.
2.18 COMPLIANCE WITH LAWS. With respect to the Branch Office and the
business of Seller carried on at the Branch Office, Seller is, and at all times
has been: (a) in material compliance with the provisions of any applicable
federal, state and local statutes, regulations and ordinances (including,
without limitation, those relating to solid waste and hazardous waste treatment
and their storage, on or off-site disposal, generation and transfers, those
relating to water, air or noise pollution, ground water contamination, the
handling, storage or release into the environment of hazardous materials or
hazardous substances or the transfer of hazardous materials), the violation of
which would impede Purchaser's ability to operate the Branch Office, including
without limitation all such regulations of governmental agencies having
jurisdiction over such business; and (b) in compliance with all material
agreements, contracts and commitments to which Seller is a party. To the best of
Seller's knowledge, Seller is not in violation of any such statute, regulation
or ordinance, or in default under any such material agreement, contract or
commitment other than as provided in Schedule 2.18 attached hereto.
2.19 CONFLICTS. The execution, delivery and performance of this Agreement
and compliance with the provisions hereof by Seller will not conflict with, or
result in any material breach of any of the terms, conditions or provisions of,
or constitute a material default under, or, except for such rights that may be
created in favor of Purchaser by
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this Agreement, result in the creation of any lien, charge or encumbrance upon
the Branch Office pursuant to, any corporate charter, bylaw, mortgage, lease,
agreement, order, decree, ruling or other instrument to which Seller is a party
or by which Seller is bound.
2.20 CORPORATE APPROVAL. The execution, delivery and performance of this
Agreement have been duly authorized by the Board of Directors of Seller and,
subject to receipt of required regulatory approvals, no other corporate action
or other approval, acquiescence or consent is required in order to authorize the
execution, delivery and performance of this Agreement by Seller.
2.21 REGULATORY APPROVAL. Seller shall use its best efforts to secure and
to assist in securing any regulatory approval or consent required to be obtained
as a condition to the lawful consummation of the transactions contemplated by
this Agreement.
2.22 OTHER AGREEMENTS. Except for this Agreement, there is no other
outstanding agreement for the sale or transfer of any portion or all of the
Branch Office, the Personal Property, the Deposit Liabilities or the Purchased
Loans.
2.23 PURCHASED LOANS.
A. The Seller is the sole owner of each Purchased Loan
and has the authority to sell, transfer, and assign such loans on the terms
herein set forth; and there has been no assignment, sale, or hypothecation
thereof by Seller, except the usual hypothecation of the Purchased Loan
documents in connection with Seller's normal banking transactions in the conduct
of its business. As to each Purchased Loan, all applicable federal and state
laws, rules and regulations, as from time to time amended, have been complied
with; and that all conditions within the control of Seller as to the validity of
the applicable insurance or guaranty as required by the National Housing Act of
1934, as amended, and the rules and regulations thereunder, or as required by
the Servicemen's Readjustment Act of 1944, and the rules and regulations
thereunder, or by the mortgage insurance companies or other insurers, have been
properly satisfied and said insurance or guaranty is valid and enforceable.
Seller agrees to do all acts necessary to perfect title to the Purchased Loans
in Purchaser at Closing, and to be responsible at no expense to Purchaser for
seeing to it that at all times while this Agreement is in force, policies of
fidelity, fire, and extended coverage, theft, forgery and errors and omissions
insurance are maintained on the collateral property securing the Purchased
Loans, and shall furnish proof of such insurance coverage upon demand by
Purchaser.
B. Seller represents and warrants as to each Purchased
Loan that:
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(i) The applicable loan documents have been
duly executed by the loan debtor, acknowledged, and recorded; and the loan is
valid and complies with all applicable lending laws and regulations;
(ii) The loan debtor has duly executed
appropriate evidence indicating that the loan debtor has received the
disclosure materials as required by applicable law and regulations;
(iii) The full original principal amount of the
loan has been advanced to the loan debtor, either by direct payment, or by
payment made on the loan debtor's request or approval; the unpaid principal
balance is as stated on EXHIBIT B; all costs, fees, and expenses incurred in
making, closing, and recording the loan have been paid; no part of the security
property has been released from the lien of the loan; the terms of the loan
have in no way been changed or modified, except for loan adjustments made in
compliance with the loan contract and applicable regulatory requirements or as
set forth in appropriate amendments executed by the loan debtor and Seller;
and the loan is current and not in default;
(iv) Each loan which Seller represents to be
insured by a private mortgage insurance company, or to be insured or guaranteed
by a governmental or quasi-governmental agency, is so insured or guaranteed;
(v) There is in force a paid-up title insurance
policy on the loan or other documentary evidence in an amount at least equal
to the outstanding principal balance of the loan affirming the quality and
validity of Seller's lien securing the loan;
(vi) The assignment, if any, of the loan from
the Seller to Purchaser will be valid and sufficient;
(vii) All documents submitted are genuine, and
all other representations as to each loan sold are true and correct;
(viii) There is in force such flood insurance
policy as is required (if any) under the Flood Disaster Protection Act of 1973,
as amended, and implementing and other regulations; and
(ix) The improvements on the premises securing
each loan are kept insured by hazard insurance policies (a) in an amount at
least equal to the outstanding principal of the loan, or the full insurable
value of the improvements, whichever is less, (b) of a type substantially in
the form of and at least as protective as the fire and extended coverage
contained in the "New York" loss mortgage clause (also known as "standard" or
"union" loss mortgage clause) which provides that the Seller's hazard insurance
is not invalidated by acts of the loan debtor, and (c) containing
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suitable provisions for payment on all present and future loans on the security
property in order of precedence.
2.24 SELLER'S INDEMNITIES AND ASSUMPTIONS.
A. INDEMNITIES. Seller agrees to indemnify, hold
harmless and defend Purchaser at all times from and after the Closing Date
against and from any and all losses, claims, damages, costs, expenses or
liabilities to which Purchaser may become subject insofar as such losses,
claims, damages, costs, expenses and liabilities (including such attorneys'
fees incurred in connection with such action even if incident to arbitration or
appellate, bankruptcy and post-judgment proceedings) arise out of or are based
upon the following:
(i) The activities and operations of Seller, its
officers, directors and employees at or relating to the Branch Office for all
periods prior to and including the Closing Date, including but not limited to
obligations and liabilities relating to Selected Contracts, Deposit Liabilities,
Personal Property, taxes and penalties and interest thereon and other
governmental laws and regulations, safe deposit boxes leased at any time prior
to closing from the Branch Office and the payment of accrued interest;
(ii) The existence of any facts, circumstances,
situations or conditions or the happening of any event constituting a breach or
violation of any of the representations, warranties, covenants or agreements of
Seller contained in this Agreement, or the untruth or inaccuracy thereof,
including but not limited to all statements or figures contained in the
exhibits to or statements, certificates or lists and schedules provided
pursuant to this Agreement; provided, however, that Seller's obligations
hereunder with respect to any breach of representation or warranty shall not
survive beyond three (3) years after the Closing Date;
(iii) Any default or failure to perform, on the
part of Seller, occurring prior to or on the Closing Date, under any of the
Selected Contracts and Deposit Liabilities; and
(iv) The existence of any defect in the assignment
of any Purchased Loan, including Seller's lack of power or authority to make
such assignment, or of a defense asserted by a borrower under a Purchased Loan,
which defect or defense impedes or prevents, upon default of such borrower,
the ability of Purchaser to collect such Purchased Loan or to otherwise
realize upon the collateral securing such Purchased Loan.
The defense and indemnification will include, but not be limited to, losses or
potential losses under the Uniform Commercial Code relating to negotiable
instruments, assignments or pledges; claims relating to disclosures,
representations, fraud or concealment; claims founded on employee defalcation or
negligence; and any other
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activity or failure to act relating to the obtaining and handling of said
accounts prior to or on the Closing Date or in connection with the performance
by Seller of any of its post-Closing Date obligations under this Agreement,
including without limitation improper crediting or debiting of receipts or
disbursements of the accounts; provided, however, that Seller's obligations
under Sections 2.24(A)(ii) and (iv) with respect to Purchased Loans shall arise
only if Seller fails to transfer to and exchange with Purchaser a new loan (a
"Substitute Loan") in substitution for the Purchased Loan(s) giving rise to
Seller's obligations under Sections 2.24(A)(ii) and (iv) within forty-five (45)
days after Purchaser's notice to Seller provided under this Section 2.24.
Purchaser shall have the right in its reasonable discretion to accept or reject
a loan as a Substitute Loan and, once accepted, a Substitute Loan shall be
deemed a Purchased Loan for all purposes of this Agreement. Transfers and
conveyances of Purchased Loans by Purchaser to Seller and of Substitute Loans by
Seller to Purchaser shall take place in the manner, and accompanied by the
ancillary documentation, as specified in this Agreement for the transfer and
conveyance of Purchased Loans by Seller to Purchaser on the Closing Date.
Accruals for interest, hazard insurance, real estate taxes, etc. shall be
prorated as of the date of transfer and conveyance, and differences in principal
balances between Substitute Loans and the Purchased Loans for which they were
substituted shall be reconciled and paid by the appropriate party on such date.
B. SELLER'S PARTICIPATION. Purchaser will supply Seller with
notice of any loss, damage or claim which, if true, could result in loss or
damage and an indemnification obligation of Seller as set forth above. Seller
shall have the right to pay, settle or compromise any such claim. If Seller
litigates any action arising from such claim, Seller shall pay all costs imposed
in litigating the claim and any awards or judgments related to the claim which
resulted from actions or inactions prior to or on the Closing Date. If Seller
fails to defend Purchaser or fails to settle or compromise the claim within a
reasonable period of time after notice, then Purchaser shall be entitled to
settle, compromise or pay any award or judgment (after giving Seller notice of
its intention to do so) and Purchaser shall be entitled to immediately receive
reimbursement therefore from Seller upon written demand, whether the matter was
litigated, settled or compromised, equal to the amount of any award or judgment,
and/or equal to the amount of any settlement or costs of any compromise paid by
or incurred by Purchaser plus an amount equal to attorneys' fees incident to
arbitration or appellate, bankruptcy and post-judgment proceedings and
paraprofessional fees.
2.25 WARRANTIES AND GUARANTIES. With respect to the Personal Property,
Seller shall assign and deliver to Purchaser, on or prior to the Closing Date,
all warranties and guaranties, manufacturers' or otherwise, which are in force
and effect as of the Closing Date and which are not expressly made
non-assignable by their own terms.
2.26 RETIREMENT ACCOUNTS. Seller shall resign as trustee under
individual retirement and Xxxxx accounts included in the Deposit Liabilities,
effective on the Closing Date and appoint Purchaser as its successor trustee in
accordance with the
15
terms of such account documents. Seller shall promptly send appropriate
notices to such account holders.
2.27 NOTICE OF CHANGE IN INTEREST RATES. Seller represents that
interest rates paid during the six (6) months prior to the Closing Date have
been and, except as otherwise required by the provisions of Section 2.13, will
be the same as it has paid throughout its branch offices generally with respect
to each type of savings and checking deposit account contained in the Deposit
Liabilities. Seller agrees to provide to Purchaser, at the xxxx Xxxxxx provides
such notice to its branch offices, but in no event less than one business day
prior to such change, written notice of each change in interest rates to be paid
on such types of accounts throughout its branch offices generally, for a period
of thirty-one (31) days following the Closing Date.
ARTICLE III
COVENANTS, REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser covenants, represents and warrants to Seller as follows:
3.01 ORGANIZATION. Purchaser is a federally-chartered savings bank in
stock form, validly existing and in good standing under the laws of the United
States of America. Purchaser has all corporate power, subject to required
regulatory approvals, to carry on the business of a savings association at the
Branch Office.
3.02 CORPORATE APPROVAL. The execution, delivery and performance of
this Agreement have been duly authorized by the Board of Directors of Purchaser
and, subject to receipt of required regulatory approvals, no other corporate
action or other approval or consent is required in order to authorize the
execution, delivery and performance of this Agreement by Purchaser.
3.03 CONFLICTS. The execution, delivery and performances of this
Agreement and compliance with the provisions hereof by Purchaser will not
conflict with, or result in any material breach of any of the terms, conditions
or provisions of, or constitute a material default under, any corporate charter,
bylaw, mortgage, lease, agreement, order, decree, ruling or other instrument to
which Purchaser is a party or by which Purchaser is bound.
3.04 REGULATORY APPROVAL. Purchaser shall use its best efforts to
secure and to assist in securing any regulatory approval or consent required to
be obtained as a condition to the lawful consummation of the transactions
contemplated by this Agreement.
3.05 ASSUMPTION OF CONTRACTS. Within fifteen (15) days after receipt of
contracts to be provided to Purchaser by Seller pursuant to Section 2.02C,
Purchaser shall inform
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Seller, in writing, of those contracts, Purchaser wants to assume, which
contracts shall comprise the "Selected Contracts."
3.06 LITIGATION. There is no litigation, proceeding, examination or
investigation pending or, to the knowledge of Purchaser, threatened against or
relating to the business of Purchaser to be conducted on or from the Branch
Office or in connection therewith which questions the validity of any action
taken or to be taken by Purchaser pursuant to or in connection with the
provisions of this Agreement; and, Purchaser does not know and has no reasonable
grounds to know of any basis for any such action, or any governmental
investigation, examination or proceeding relative to the Branch Office or the
Purchaser's proposed business thereat.
3.07 PURCHASER'S INDEMNITIES AND ASSUMPTIONS.
A. INDEMNITIES. Purchaser agrees to indemnify, hold
harmless and defend Seller at all times after the Closing Date against and
from any and all losses, claims, damages, costs, expenses or liabilities to
which Seller may become subject insofar as such losses, claims, damages, costs,
expenses and liabilities (including such attorneys' fees, incurred in
connection with such action even if incident to arbitration or appellate,
bankruptcy and post-judgment proceedings) arise out of or are based upon
the following:
(i) The activities and operations of Purchaser at
the Branch Office for all periods after the Closing Date, including, but not
limited to, obligations to depositors and borrowers on deposits and loans
acquired by Purchaser, obligations and liabilities relating to taxes and
penalties and interest thereon and other governmental laws and regulations;
(ii) The existence of any facts, circumstances,
situations or conditions or the happening of any event constituting a breach
or violation of any of the representations, warranties, covenants or agreements
of Purchaser contained in this Agreement, or the untruth or inaccuracy thereof;
provided, however, that Purchaser's obligations hereunder with respect to any
breach of representation or warranty shall not survive beyond three (3) years
after the Closing Date;
(iii) Any default or failure to perform, on the
part of Purchaser, occurring after the Closing Date, under any of the Selected
Contracts and Deposit Liabilities; and
(iv) All damages to persons or property which occur
after the Closing Date in or relating to the operation of the Branch Office
unless such damages result from a breach by Seller of its obligations under
this Agreement.
17
The defense and indemnification will include, but not be limited to, losses or
potential losses under the Uniform Commercial Code relating to negotiable
instruments, assignments or pledges; claims relating to disclosures,
representations, fraud or concealment; claims founded on employee defalcation or
negligence; and other activity or failure to act relating to the obtaining and
handling of said accounts after the Closing Date, including improper crediting
or debiting of receipts or disbursements of the accounts.
B. PURCHASER'S PARTICIPATION. Seller will supply Purchaser
with notice of any loss or damage or claim which, if true, could result in loss
or damage and an indemnification obligation of Purchaser as set forth above.
Purchaser shall have the right to pay, settle or compromise any such claim. If
Purchaser litigates any action arising from such claim, Purchaser shall pay all
costs imposed in litigating the claim and any awards or judgments related to the
claim which resulted from actions or inactions subsequent to the Closing Date.
If Purchaser fails to defend Seller or fails to settle or compromise the claim
within a reasonable period of time after notice, then Seller shall be entitled
to settle, compromise or pay any award or judgment (after giving Purchaser
notice of its intention to do so) and Seller shall be entitled to receive
reimbursement therefore from Purchaser upon written demand, whether the matter
was litigated, settled or compromised, equal to the amount of any award or
judgment, and/or equal to the amount of any settlement or cost of any compromise
paid by or incurred by Seller plus an amount equal to attorneys' fees even if
incident to arbitration or appellate, bankruptcy and post-judgment proceedings
and paraprofessional fees.
C. NO ASSUMPTIONS. There shall be no general assumption by
Purchaser of Seller's liabilities, whether accrued or unaccrued, contingent,
or otherwise; except, (i) liabilities relating to the Selected Contracts
(including the Premises Lease) assumed by Purchaser; and (ii) the Deposit
Liabilities.
ARTICLE IV
DOCUMENTS AND TRANSFERS ON THE CLOSING DATE
AND THE ADJUSTMENT PAYMENT DATE
4.01 CLOSING DATE - SELLER. On or before the Closing Date, Seller
shall deliver the following documents and make the following transfers to
Purchaser:
A. A statement listing each Deposit Liability as of
the Calculation Date upon which the Estimated Liabilities Price was calculated,
setting forth the name, address and social security number, if known, of the
depositor thereof, account number and type of account, the principal balance,
accrued interest, maturity date, if any, interest rate, and other information
requested by Purchaser, certified in writing by the Chief Financial Officer or
Treasurer of Seller as being true and correct as of the close of business of
such date;
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B. A statement setting forth the name and address of
the borrower, the outstanding principal amount, the maturity date, the interest
rate and the amount of accrued but unpaid interest owing as of the Calculation
Date, for each Purchased Loan, certified by the Chief Financial Officer or
Treasurer of Seller as being true and correct as of the close of business as of
such date. Seller shall furnish the borrower with an Internal Revenue Service
Form 1098 interest statement and an explanatory letter regarding the interest
paid for the calendar year-to-date as of the Closing Date. Purchaser shall
furnish the borrower with an Internal Revenue Service Form 1098 interest
statement for interest paid from the Closing Date through the end of the
calendar year;
C. A Closing Statement detailing the amounts to be
transferred by Seller to Purchaser pursuant to Section 1.04B setting forth, in
reasonable detail, the Estimated Liabilities Price, the Personal Property
Purchase Price and the Estimated Loans Purchase Price, as well as the prorations
required by Section 1.06 hereof;
D. An opinion of counsel as provided in Section 6.04 of
this Agreement;
E. An Officer's Certificate as provided in Section
6.05 of this Agreement;
F. The transfer of the Estimated Liabilities Price, as
adjusted, pursuant to Section 1.04B of this Agreement, and the payment of the
other amounts payable by Seller pursuant to Section 1.06 hereof;
G. The following records:
(i) All records maintained at the Branch Office
relating to the Deposit Liabilities, including signature cards, applications,
truth-in-savings and other disclosures, copies of passbooks and certificates;
(ii) All records maintained at the Branch Office
relating to the operation of the Branch Office;
(iii) All original forms of the Selected Contracts
duly assigned to Purchaser with all necessary consents obtained and attached;
(iv) Security deposits, if any, held by Seller
under the Selected Contracts; and
(v) All original notes, mortgages, security
agreements, loan files and other documents relating to Purchased Loans duly
endorsed or assigned to
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Purchaser including, without limitation, appraisals, surveys, title insurance
policies, applications, hazard insurance policies and disclosure statements;
H. A xxxx of sale containing warranties of title and
freedom from encumbrances transferring the Personal Property, Purchased Loans
and Seller's leasehold interest in the Premises to Purchaser;
I. Possession of the Branch Office, Premises and
Personal Property;
J. All warranties and guaranties as to Personal
Property as provided in Section 2.26 of this Agreement; and
K. All of Seller's right, title and interest in and to
the safe deposit box business located at the Branch Office including removable
safe deposit boxes and safe deposit box stacks in the vaults, together with all
rights and benefits accruing to the lessor from and after the Closing Date under
rental agreements with persons to whom any such boxes are rented under
agreements with Seller (which rent shall be prorated in accordance with Section
1.06), and all of the keys, combination, signature cards, agreements and records
pertaining to the operation of such safe deposit boxes by Seller.
4.02 CLOSING DATE - PURCHASER. On or before the Closing Date,
Purchaser shall deliver to Seller the following:
A. An opinion of counsel as provided in Section 5.04 of
this Agreement;
B. An Officer's Certificate as provided in Section 5.05
of this Agreement;
C. An assumption of Seller's obligations under the
Selected Contracts and Deposit Liabilities; and
D. The amount of the sales taxes to be paid by
Purchaser as provided in Section 1.06 of this Agreement.
4.03 ADJUSTMENT PAYMENT DATE - SELLER. On the Adjustment Payment
Date, Seller shall deliver the following documents and make the following
transfers to Purchaser:
A. An amended statement listing each change from the
statement delivered pursuant to Section 4.01A in the Deposit Liabilities to be
transferred to and assumed by Purchaser, setting forth the name, address and
social security number, if known, of the depositor thereof, account number and
type of account, the principal balance, accrued interest, maturity date, if any,
interest rate, and other information
20
required by Purchaser, as of the close of business on the Closing Date,
certified by the Chief Financial Officer or Treasurer of Seller as being true
and correct;
B. An amended statement setting forth any change from
the statement delivered pursuant to Section 4.01B setting forth the name and
address of the borrower, the outstanding principal amount, the maturity date,
the interest rate and the amount of accrued but unpaid interest owing for each
Purchased Loan as of the close of business on the Closing Date, certified by the
Chief Financial Officer or Treasurer of Seller as being true and correct; and
C. Any Adjustment Payment due to Purchaser, as
provided in Section 1.04C of this Agreement.
4.04 ADJUSTMENT PAYMENT DATE - PURCHASER. On the Adjustment Payment
Date, Purchaser shall prepare, with the assistance of Seller, a Closing
Statement for execution by the parties and pay to Seller any Adjustment Payment
due to Seller pursuant to Section 1.04C of this Agreement.
4.05 DESIGNATION OF ADDITIONAL PURCHASED LOANS. If necessary to satisfy
Purchaser's condition to its obligations to consummate this Agreement set forth
in Section 6.10 that Seller deliver a certain minimum aggregate Purchased Loans
Base, Seller and Purchaser may mutually agree prior to Closing to supplement or
modify EXHIBIT B attached hereto by adding or substituting loans owned by
Seller. The parties shall update EXHIBIT B through the Closing Date, and any
such loans added to EXHIBIT B by Seller and Purchaser shall be deemed "Purchased
Loans" for all purposes of this Agreement.
ARTICLE V
CONDITIONS TO OBLIGATIONS OF SELLER
The obligations of Seller to consummate the transactions
contemplated under this Agreement are subject to the satisfaction of the
following conditions on or prior to the Closing Date unless otherwise waived in
writing by Seller:
5.01 COMPLIANCE WITH CONDITIONS. All of the terms, covenants and
conditions of this Agreement to be complied with and performed by Purchaser on
or before the Closing Date shall have been duly complied with and performed in
all material respects.
5.02 TRUTH OF WARRANTIES. The representations and warranties made by
Purchaser herein or in any certificate or document delivered pursuant to the
provisions hereof or in connection with the transactions contemplated hereby
shall be true and correct in all material respects, on and as of the Closing
Date with the same force and
21
effect as though such representations and warranties had been made on the
Closing Date.
5.03 REGULATORY APPROVAL. All required regulatory approvals shall have
been obtained from the Office of Thrift Supervision or such other applicable
regulatory authority in a manner and form reasonably satisfactory to Seller and
shall be in full force and effect.
5.04 OPINION OF COUNSEL. Seller shall have received an opinion of
counsel for Purchaser, dated as of the Closing Date, in the form and substance
reasonably satisfactory to Seller and its counsel, to the effect that: (a)
Purchaser is a federally-chartered savings bank in stock form, organized and
validly existing under the laws of the United States of America and has all of
the necessary power and authority under the laws of the United States of America
to undertake and consummate the transfer and transactions with Seller
contemplated by this Agreement; (b) all corporate proceedings required to be
taken by or on behalf of Purchaser to authorize it to carry out this Agreement
have been duly and properly taken; (c) this Agreement has been duly executed and
delivered by Purchaser and (assuming due execution and delivery by Seller) is a
legal, valid and binding obligation of Purchaser, enforceable in accordance with
its terms, except as may be limited by bankruptcy, insolvency, reorganization,
moratorium or other laws affecting creditors' rights and except as may be
limited by the exercise of judicial discretion in applying general principles of
equity (regardless of whether such agreements or documents are considered in a
proceeding in equity or at law); (d) to the knowledge of such counsel there is
no litigation, proceeding or investigation pending or threatened against
Purchaser pursuant to or in connection with the provisions of this Agreement;
and (e) to the knowledge of such counsel, no authorization, approval, consent,
certificate or order under any federal law or regulation applicable to
federally-chartered savings associations is required in order for Purchaser to
consummate the transactions contemplated by this Agreement, except for the
approval and authorization of the Office of Thrift Supervision which has been
obtained and is in full force and effect; (f) to the knowledge of such counsel,
the execution, delivery and performance of this Agreement and compliance with
the provisions hereof by Purchaser will not conflict with, or result in any
breach of any of the terms, conditions or provisions of, or constitute a default
under, or result in the creation of any lien, charge or encumbrance upon the
Branch Office pursuant to any corporate charter, bylaw, mortgage, lease,
agreement, order decree, ruling or other instrument other than this Agreement to
which Purchaser is a party or by which Purchaser is bound; and (g) Purchaser has
the corporate power to purchase and accept from Seller all of the Personal
Property, the Purchased Loans and the Deposit Liabilities to be sold or assigned
hereunder.
In giving the foregoing opinion, such counsel may rely (as to
matters of fact) upon certificates of public officials and officers and
directors of Purchaser and shall
22
not be required to make any independent investigation as to matters qualified
by the knowledge of such counsel.
5.05 OFFICERS' CERTIFICATES. Seller shall have received certificates of
Purchaser's President or Executive Vice President, dated as of the Closing Date,
certifying that: (a) Purchaser has performed and complied with all agreements
and conditions required by this Agreement to be performed or complied with by
Purchaser prior to or at the Closing Date; and (b) all representations and
warranties made by Purchaser in this Agreement, or in any certificate or
document delivered pursuant to the provisions hereof or in connection with the
transactions contemplated hereby, are true and correct at and as of the Closing
Date.
5.06 COOPERATION AFTER CLOSING. Seller and Purchaser shall have agreed
on procedures for handling ACH transactions, direct deposits, in-clearing items,
ATM transactions and like transactions relating to the Deposit Liabilities after
the Closing Date.
5.07 VALIDITY OF ASSUMPTION. The validity of the form, substance and
legal enforceability of all instruments of transfer and other documentation
hereunder shall be subject to the reasonable approval of Seller and its counsel.
5.08 ABSENCE OF LITIGATION. No action or proceeding shall have been
instituted or threatened on or before the Closing Date or pertaining to the
acquisition contemplated hereby or otherwise, the result of which could be
materially adverse to the assumption, service and operation by Purchaser of the
assets purchased and liabilities assumed hereunder.
ARTICLE VI
CONDITIONS TO OBLIGATIONS OF PURCHASER
The obligations of Purchaser to consummate the transactions
contemplated under this Agreement are subject to the satisfaction of the
following conditions on or prior to the Closing Date unless otherwise waived in
writing by Purchaser:
6.01 COMPLIANCE WITH TERMS OF AGREEMENT. All of the terms, covenants,
and conditions of this Agreement to be complied with and performed by Seller on
or before the Closing Date shall have been duly complied with and performed in
all material respects.
6.02 TRUTH OF WARRANTIES. The representations and warranties made by
Seller herein or in any certificate or document delivered pursuant to the
provisions hereof or in connection with the transactions contemplated hereby
shall be true and correct in all
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material respects on and as of the Closing Date with the same force and effect
as though such representations and warranties had been made on the Closing Date.
6.03 REGULATORY APPROVAL. All required regulatory approvals shall have
been obtained from the Office of Thrift Supervision or such other applicable
regulatory authority in a manner and form reasonably satisfactory to Purchaser
and shall be in full force and effect.
6.04 OPINION OF COUNSEL. Purchaser shall have received an opinion of
counsel for Seller, dated as of the Closing Date, in the form and substance
reasonably satisfactory to Purchaser and Purchaser's counsel, to the effect
that: (a) Seller is a federally-chartered savings bank in stock form, organized
and validly existing under the laws of the United States of America and has all
of the necessary power and authority under the laws of the United States of
America to undertake and consummate the transfer and transactions with Purchaser
contemplated by this Agreement; (b) all corporate proceedings required to be
taken by or on behalf of Seller to authorize it to carry out this Agreement, to
sell, convey, assign, transfer and deliver to Purchaser, the Personal Property,
the Purchased Loans and the Deposit Liabilities in accordance with this
Agreement have been duly and properly taken; (c) this Agreement has been duly
executed and delivered by Seller and (assuming due execution and delivery by
Purchaser) is a legal, valid and binding obligation of Seller enforceable in
accordance with its terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors' rights and except
as may be limited by the exercise of judicial discretion in applying general
principles of equity (regardless of whether such agreement or documents are
considered in a proceeding in equity or at law); (d) to the knowledge of such
counsel, the execution, delivery and performance of this Agreement and
compliance with the provisions hereof by Seller will not conflict with, or
result in any breach of any of the terms, conditions or provisions of, or
constitute a default under, or result in the creation of any lien, charge or
encumbrance upon the Branch Office pursuant to any corporate charter, bylaw,
mortgage, lease, agreement, order, decree, ruling or other instrument other than
this Agreement to which Seller is a party or by which Seller is bound; (e) to
the knowledge of such counsel there is no litigation, proceeding or
investigation pending or threatened against or relating to the Branch Office,
the Personal Property, the Purchased Loans, the Deposit Liabilities or the
business of Seller conducted at or from the Branch Office or in connection
therewith that would have a materially adverse effect on the business of the
Branch Office, or which questions the validity of any action taken or to be
taken by Seller pursuant to or in connection with the provisions of this
Agreement; (f) to the knowledge of such counsel, there are no other agreements
outstanding for the sale of the Personal Property, the transfer of the Deposit
Liabilities or the sale of the Purchased Loans; (g) Seller has the corporate
power to sell, convey, transfer and deliver to Purchaser all of the Personal
Property, the Purchased Loans and the Deposit Liabilities to be sold or assigned
hereunder; and (h) to the knowledge of such counsel, no authorization, approval,
consent, certificate or order under any federal law or regulation applicable to
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federally-chartered savings banks is required in order for Seller to consummate
the transactions contemplated by this Agreement, except for the approval and
authorization of the Office of Thrift Supervision, which has been obtained and
is in full force and effect.
In giving the foregoing opinion, such counsel may rely (as to
matters of fact) upon certificates of public officials and officers and
directors of Seller and shall not be required to make any independent
investigation as to matters qualified by the knowledge of such counsel.
6.05 OFFICERS' CERTIFICATE. Purchaser shall have received certificates
of Seller's President or Executive Vice President dated as of the Closing Date,
certifying that: (a) Seller has performed and complied with all agreements and
conditions required by this Agreement to be performed or complied with by Seller
prior to or at the Closing Date; (b) all representations and warranties made by
Seller in this Agreement, or in any certificate or document delivered pursuant
to the provisions hereof or in connection with the transactions contemplated
hereby, are true at and as of the Closing Date; and (c) no default exists under
any Purchased Loans as of the Closing Date.
6.06 NO MATERIAL CHANGE. On the Closing Date, there shall have been
no material adverse change in the business or prospects of the Branch Office.
6.07 COOPERATION AFTER CLOSING. Seller and Purchaser shall have agreed
on procedures for handling ACH transactions, direct deposits, in-clearing items,
ATM transactions and like transactions related to the Deposit Liabilities after
the Closing Date.
6.08 VALIDITY OF ASSUMPTION. The validity of the form, substance and
legal enforceability of all instruments of transfer and other documentation
hereunder including, without limitation, that required to be delivered pursuant
to Section 4.01 hereof, shall be subject to the reasonable approval of Purchaser
and its counsel.
6.09 ABSENCE OF LITIGATION. No action or proceeding shall have been
instituted or threatened on or before the Closing Date or pertaining to the
acquisition contemplated hereby or otherwise, the result of which could be
materially adverse to the assumption, service and operation of Purchaser of the
assets purchased and liabilities assumed hereunder.
6.10 DEPOSIT LIABILITIES; PURCHASED LOANS. As of the Calculation Date,
the Deposit Liabilities shall not be less than $20 million. As of the Closing
Date, the Purchased Loans must have a Purchased Loans Base of not less than
$12,500,000 and such Purchased Loans (after taking into account the accretion of
any discounts and amortization of any premiums specified by Seller with respect
to each in arriving at the Purchased Loans Base) must yield in the aggregate at
least 8.25% per annum.
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ARTICLE VII
COVENANT NOT TO COMPETE
7.01 COVENANT NOT TO COMPETE. Except as provided in Section 7.02, in
consideration of the assumption by Purchaser of the Deposit Liabilities, and the
purchase by Purchaser of the Personal Property and Purchased Loans, Seller
agrees that for three (3) years following the Closing Date, Seller and any
subsidiary thereof will not:
A. OTHER OFFICES AND INSTITUTIONS. Open, purchase, operate,
control or otherwise have any interest in any branch or other office or any
financial institution, including without limitation, a state or
federally-chartered commercial bank, savings association or savings bank, which
has a branch office or other place of business within a five (5) mile radius of
the Branch Office (the "Restricted Area").
B. GENERAL SOLICITATION. Make any direct mail, telephone or
other means of retail deposit solicitation, other than by way of television,
radio, newspaper or other form of media of general circulation, to persons
residing within the Restricted Area, provided that nothing herein shall prohibit
Seller from soliciting by mail residents of such Restricted Area who maintain
pre-existing customer relationships with Seller at any of its offices or
branches other than the Branch Office, as part of a general mail solicitation
sent only to customers of Seller.
7.02 BREACH. A breach of this covenant not to compete shall be a
default under this Agreement and shall entitle Purchaser to seek or obtain an
injunction against such breach and to seek and to obtain money damages arising
as a result of such breach. Seller agrees that the remedy at law for any breach
by it or its successors of any of the provisions of this Article VII shall be
inadequate, and that, in addition to any other remedies Purchaser may have,
Purchaser shall be entitled to temporary and permanent injunctive relief without
the necessity of proving actual damage to Purchaser or the posting of any bond
therefor.
7.03 WAIVER. No delay or omission on the part of Purchaser in the
exercise of any remedy hereunder shall operate as a waiver of any breach. The
remedies available to Purchaser hereunder shall be exercisable in any
combination with any and all other remedies available to Purchaser by operation
of law or in equity.
7.04 JUDICIAL MODIFICATION. In the event that any court shall finally
hold that the time or the Restricted Area or any other provision stated in this
Agreement constitutes an unreasonable restriction upon Seller, Seller hereby
expressly agrees that the provisions of this Agreement shall not be rendered
void, but shall apply as to time and territory or to such other extent as such
court may judicially determine or indicate constitutes a reasonable restriction
under the circumstances involved.
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ARTICLE VIII
TERMINATION
8.01 TERMINATION. This Agreement shall terminate and be of no further
force or effect between the parties hereto, and the parties shall be released
from all further obligations hereunder (except with respect to any liability for
breach of any duty or obligation arising prior to the date of termination), upon
the earlier occurrence of any of the following:
A. Purchaser's election, in its sole and absolute
discretion, not to proceed with this Agreement and the transactions contemplated
herein at the end of a period of thirty (30) days following the date hereof (the
"Due Diligence Period"). Such election shall be in writing and delivered to
Seller within five (5) business days following the end of the Due Diligence
Period. If Purchaser shall elect to terminate this Agreement under this Section
8.01A, such termination shall be without any liability to either of the parties
hereto.
B. Termination pursuant to Section 8.02.
C. Upon the expiration of fifteen (15) days after the
Office of Thrift Supervision (or its successor) and/or any other appropriate
regulatory authority issues a decision denying or refusing to grant the approval
or consent required to be obtained pursuant to this Agreement, unless within
said period Seller and Purchaser agree in writing to submit or resubmit an
application to or appeal the decision of the regulatory authority which has
denied or refused to grant said approval.
D. Immediately upon the expiration of thirty (30) days
from the date that either party hereto has given notice to the other party
hereto of such other party's breach or misrepresentation of any condition,
warranty, representation or covenant herein; provided, such breach or
misrepresentation results in a condition which materially and adversely affects
the value of one party's performance being tendered by the other, and further
provided that no such termination shall take effect if within said 30-day period
the party so notified shall have substantially corrected the ground for
termination as specified in the aforementioned notice.
E. Upon failure to consummate the transactions
contemplated herein by December 31, 1995.
Anything in the foregoing to the contrary notwithstanding, neither
party hereto shall have the right to terminate this Agreement due to its default
or immaterial default by the other party hereto, and no termination hereunder
shall relieve any party from any liability for its own breach of this Agreement.
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8.02 RISK OF LOSS. If the Branch Office or Personal Property are
damaged by fire or other casualty prior to the Closing Date and the estimated
cost of restoration does not exceed three percent (3%) of the assessed valuation
of the property so damaged, the cost of restoration shall be an obligation of
Seller and the Closing shall proceed pursuant to the terms of this Agreement
with estimated restoration costs paid by Seller and escrowed at Closing. If the
estimated cost of restoration exceeds three percent (3%) of the assessed
valuation of the property so damaged, Purchaser shall have the option of either:
(a) taking the Branch Office and the Personal Property as is, and assuming the
Premises Lease, together with either the three percent (3%) or any insurance
proceeds payable by virtue of such loss or damage; or (b) terminating this
Agreement without liability to Purchaser.
ARTICLE IX
MISCELLANEOUS
9.01 EXPENSES. Except as otherwise specifically provided in this
Agreement, Seller and Purchaser each shall pay its own expenses in connection
with this Agreement and the transactions contemplated thereby, including counsel
fees and expenses.
9.02 PRESS RELEASES. Seller and Purchaser shall consult with each other
as to the form and substance of any press release or other public disclosure of
matters relating to this Agreement prior to the distribution or publication of
any such release; provided, however, that nothing herein shall be deemed to
prohibit any party, after such consultation, from making any disclosure which it
or its counsel deems necessary in order to fulfill such party's disclosure
obligations imposed by law.
9.03 NATURE AND SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made by Seller and Purchaser in this Agreement or
pursuant hereto shall survive the Closing Date.
9.04 BROKERS. Each of the parties represents and warrants that such
party has dealt with no broker or finder in connection with any of the
transactions contemplated by this Agreement, and, insofar as such party knows,
no broker or other person is entitled to any commission or finder's fee in
connection with any of these transactions. The parties each agree to indemnify
and hold harmless one another against any loss, liability, damage, cost, claim
or expense incurred by reason of any brokerage commission or finder's fee
alleged to be payable because of any act, omission or statement of the
indemnifying party.
9.05 EXTENSIONS AND WAIVERS. The parties, by written agreement, may:
(a) extend the time for the performance of any of the obligations or other acts
of the parties hereto; (b) waive any inaccuracies in the representations
contained in this Agreement or in any document delivered pursuant to this
Agreement; and, (c) waive compliance with
28
or modify any of the covenants contained in this Agreement and waive or modify
the performance of any of the obligations of the parties hereto. Any agreement
on the part of any party for any such extension, modification or waiver shall be
validly and sufficiently authorized for the purposes of this Agreement if
authorized by the Board of Directors or the President or any Senior Vice
President of such party.
9.06 TRADE NAMES AND TRADEMARKS. Purchaser shall not acquire hereunder
any right to the use of the corporate names of Century Bank or any of its
subsidiaries or any trademark or service xxxx, which is used by Seller;
provided, however, Purchaser, in the ordinary course of operating the Branch
Office, may use for a period not to exceed ninety (90) days after the Closing
Date and in the reasonable use of the Branch Office or the operation of
Purchaser's business from the Branch Office, any property, equipment, materials
and supplies which are a part of the Branch Office and contain such name or
xxxx.
9.07 REMOVAL OF SIGNS. Purchaser and Seller shall coordinate the
removal of signs from the Branch Office bearing Seller's name and the
replacement of such signs with those bearing Purchaser's name. The parties shall
use their best efforts to cause this to occur immediately after the Closing Date
and prior to the next business day. Seller shall pay for the labor involved in
the removal of the signs, as well as any repairs necessary to be made to the
Branch Office as a result of the removal, and Purchaser shall pay for the new
sign bearing Purchaser's name. In the event Seller has not cooperated in the
removal of said signs or repaired the building within seven (7) days after the
Closing Date as provided herein, then Purchaser may remove said signs or repair
the building, which removal or repair shall be at Seller's expense.
9.08 AMENDMENTS. Except as otherwise provided herein, the provisions of
this Agreement may not be amended, supplemented or waived orally, but only by a
writing signed by the party as to whom enforcement of any such amendment,
supplement or waiver is sought and making specific reference to this Agreement.
9.09 FURTHER ASSURANCES. The parties hereby agree from time to time to
execute and deliver such further and other transfers, assignments and documents
and do all matters and things which may be convenient or necessary to more
effectively and completely carry out the intentions of this Agreement.
9.10 BINDING EFFECT. All of the terms and provisions of this Agreement,
whether so expressed or not, shall be binding upon, inure to the benefit of, and
be enforceable by the parties and their respective legal representatives,
successors and permitted assigns.
9.11 NOTICES. All notices, requests, consents and other communications
required or permitted under this Agreement shall be in writing (including telex,
telefaxed and telegraphic communication) and shall be (as elected by the person
giving
29
such notice) hand delivered by messenger or courier service,
telecommunicated, or mailed (airmail if international) by registered or
certified mail (postage prepaid), return receipt requested, addressed to:
PURCHASER: With a copy to:
Republic Security Bank, F.S.B. Gunster, Yoakley, Xxxxxx-Xxxxx
0000 Xxxxxxxx Xxxxxx & Xxxxxxx, X.X.
Xxxx Xxxx Xxxxx, XX 00000 000 X. Xxxxxxx Xxxxx
Xxxxxxxxx: Xxxx X. Xxxxxx, Suite 000-Xxxx Xxxxx
Xxxxxxxxx Xxxx Xxxx Xxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
SELLER: With a copy to:
Century Bank, F.S.B. Parker, Johnson, Xxxx & Dunlevie
0000 Xxxx Xxxxxx Xxxxx 000
Xxxxxxxx, XX 00000-0000 0000 Xxxxxxxxx Xxxxxx, X.X.
Attention: Xxxxx X. Xxxx Xxxxxxx, Xxxxxxx 00000
President Attention: Xxxxxx X. Xxxxxxxx, Esq.
or to such other address as any party may designate by notice complying with the
terms of this Section. Each such notice shall be deemed delivered (a) on the
date delivered if by personal delivery; (b) on the date telecommunicated if by
telegraph; (c) on the date of transmission with confirmed answer back if by
telex, telefax or other telegraphic method; and (d) on the date upon which the
return receipt is signed or delivery is refused or the notice is designated by
the postal authorities as not deliverable, as the case may be, if mailed.
9.12 HEADINGS. The headings, table of contents and list of exhibits
contained in this Agreement are for convenience of reference only, are not to be
considered a part hereof and shall not limit or otherwise affect in any way the
meaning or interpretation of this Agreement.
9.13 SEVERABILITY. If any provision of this Agreement or any other
Agreement entered into pursuant hereto is contrary to, prohibited by or deemed
invalid under applicable law or regulation, such provision shall be inapplicable
and deemed omitted to the extent so contrary, prohibited or invalid, but the
remainder hereof shall not be invalidated thereby and shall be given full force
and effect so far as possible. If any provision of this Agreement may be
construed in two or more ways, one of which would render the provision invalid
or otherwise voidable or unenforceable and another of which would render the
provision valid and enforceable, such provision shall have the meaning which
renders it valid and enforceable.
30
9.14 JURISDICTION AND VENUE. The parties acknowledge that a substantial
portion of negotiations, anticipated performance and execution of this Agreement
occurred or shall occur in Palm Beach County, Florida, and that, therefore,
without limiting the jurisdiction or venue of any other federal or state courts,
each of the parties irrevocably and unconditionally (a) agrees that any suit,
action or legal proceeding arising out of or relating to this Agreement may be
brought in the courts of record of the State of Florida in Palm Beach County or
the District Court of the United States, Southern District of Florida; (b)
consents to the jurisdiction of each such court in any suit, action or
proceeding; (c) waives any objection which it may have to the laying of venue of
any such suit, action or proceeding in any of such courts; and (d) agrees that
service of any court paper may be effected on such party by mail, as provided in
this Agreement, or in such other manner as may be provided under applicable laws
or court rules in said state.
9.15 ENFORCEMENT COSTS. If any legal action or other proceeding is
brought for the enforcement of this Agreement, or because of an alleged dispute,
breach, default or misrepresentation in connection with any provision of this
Agreement, the prevailing party shall be entitled to recover reasonable
attorneys' fees, court costs and all expenses (including, without limitation,
all such fees, costs and expenses incident to arbitration, appellate, bankruptcy
and post-judgment proceedings), incurred in that action or proceeding, in
addition to any other relief to which such party or parties may be entitled.
Attorneys' fees shall include, without limitation, paralegal fees, investigative
fees, expert witness fees, administrative costs, and all other charges billed by
the attorney to the prevailing party.
9.16 REMEDIES CUMULATIVE. Except as otherwise expressly provided
herein, no remedy herein conferred upon any party is intended to be exclusive of
any other remedy, and each and every such remedy shall be cumulative and shall
be in addition to every other remedy given hereunder or now or hereafter
existing at law or in equity or by statute or otherwise. No single or partial
exercise by any party of any right, power or remedy hereunder shall preclude any
other or further exercise thereof.
9.17 ENTIRE AGREEMENT. This Agreement represents the entire
understanding and agreement among the parties with respect to the subject matter
hereof, and supersedes all other negotiations, understandings and
representations (if any) made by and among such parties.
9.18 GOVERNING LAW. This Agreement and all transactions contemplated
by this Agreement shall be governed by the laws of the State of Florida without
regard to principles of conflicts of laws.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed, as of the 3rd day of October, 1995.
PURCHASER:
(CORPORATE SEAL) Republic Security Bank, F.S.B.
ATTEST: /s/ XXXXXXX X. XXXXXXX By: /s/ XXXX X. XXXXXX
---------------------- -------------------------
Secretary Xxxx X. Xxxxxx, President
SELLER:
(CORPORATE SEAL) Century Bank, F.S.B.
ATTEST: XXXXX X. XXXXXXXX By: /s/ XXXXX X. XXXX
---------------------- --------------------------
Secretary Xxxxx X. Xxxx, President
32
