Exhibit 10.3
RELOCATION AGREEMENT
THIS RELOCATION AGREEMENT (this "Agreement") is made as of May 20, 2004 by
and between ADVANTA CORP., a Delaware corporation ("Advanta"), having an address
at Welsh and XxXxxx Xxxxx, Xxxxxx Xxxxx, Xxxxxxxxxxxx 00000, and XXXX X. XXXXX,
an individual ("Xxxx"), having an address at c/o Advanta Bank Corp., Welsh and
XxXxxx Xxxxx, Xxxxxx Xxxxx, Xxxxxxxxxxxx 00000.
BACKGROUND
A. Xxxx is President of Advanta Bank Corp., an affiliate of Advanta. In
connection with his presidency of Advanta Bank Corp., Advanta has asked Xxxx to
establish and maintain his principal residency in Utah and in return has agreed
to (i) pay Xxxx a relocation payment for certain expenses related to his
relocation to Utah, (ii) reimburse Xxxx for amounts borrowed under a home equity
line of credit that he uses to pay for certain expenses relating to the
maintenance of his residence in Utah and (iii) under certain circumstances
described below, purchase John's Utah residence.
B. John has signed an agreement of sale to purchase certain real property
located in Salt Lake County, Utah, and known as 0000 Xxxx Xxx Xxxxx Xxxxxx (the
"Property"), which is more particularly described in Exhibit "A" attached
hereto.
C. Advanta and Xxxx now wish to enter into this Agreement in order to set
forth their mutual understanding regarding the foregoing.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally xxxxx,
Xxxx and Advanta hereby agree as follows:
1. Relocation Payment.
(a) In order to assist Xxxx in purchasing the Property, which Xxxx
shall use as his principal residence, Advanta has agreed to pay to Xxxx the sum
of One Hundred Fifty-Seven Thousand Five Hundred Dollars ($157,500) as a
relocation payment (the "Relocation Payment"), plus an additional sum equal to
the amount of John's income tax liability for the Relocation Payment.
(b) A Seventy-Three Thousand Two Hundred Dollar ($73,200) portion of
the Relocation Payment (the "Equity Amount") has been paid by Advanta to Xxxx at
the time of the signing of this Agreement, the receipt of which is hereby
acknowledged by Xxxx. The Equity Amount shall be used by Xxxx to pay that
portion of the purchase price for the Property that exceeds the amount of John's
First Mortgage Loan (hereinafter defined). If for any reason Xxxx does not
purchase the Property on or before June 1, 2004, Xxxx shall promptly return the
Equity Amount to Advanta.
(c) The balance of the Relocation Payment (i.e., the Relocation
Payment less the Equity Amount, which balance is hereinafter called the
"Relocation Payment Balance"), plus
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the additional sum equal to the amount of John's income tax liability for the
Relocation Payment, shall be paid to Xxxx by Advanta on the date of settlement
for John's purchase of the Property.
(d) The Relocation Payment Balance shall be used by Xxxx for the
payment of the following expenses (collectively, the "First Year Expenses")
during the one-year period between the Effective Date and the first anniversary
of the Effective Date: (1) regularly scheduled payments of principal and
interest on John's First Mortgage Loan (hereinafter defined), (2) his costs of
maintaining the Property, including, for example, the payment of repair bills,
condominium fees, taxes, insurance and utility bills, as mutually agreed by Xxxx
and Advanta from time to time, and (3) his miscellaneous costs of initially
preparing the Property for his occupancy, as mutually agreed by Xxxx and Advanta
from time to time.
(e) As soon as reasonably possible after the first anniversary of
the Effective Date, Xxxx and Advanta shall mutually determine the aggregate
total amount of the First Year Expenses and John's income tax liability for the
Relocation Payment. If (1) the First Year Expenses exceed the Relocation Payment
Balance and/or (2) John's income tax liability for the Relocation Payment
exceeds the amount paid by Advanta to Xxxx for such purpose, Advanta shall pay
to Xxxx the sum equal to such excess amount(s), plus the additional sum equal to
the amount of John's income tax liability for such payment. If (1) the
Relocation Payment Balance exceeds the First Year Expenses and/or (2) the amount
paid by Advanta to Xxxx for John's income tax liability for the Relocation
Payment exceeds John's actual income tax liability for the Relocation Payment,
such excess amount(s) shall be credited to Advanta's obligation to reimburse
Xxxx for Reimbursable HELOC Expenses (hereinafter defined) pursuant to
subparagraph 2(b) below.
2. Reimbursable HELOC Expenses.
(a) Xxxx intends to partially finance his purchase of the Property
with a first mortgage loan in the amount of $292,800 (which first mortgage loan
and any replacement first mortgage loan is hereinafter called "John's First
Mortgage Loan"). Xxxx also intends to obtain a home equity line of credit (which
home equity line of credit and any replacement home equity line of credit is
hereinafter called "John's HELOC"), which shall be used by Xxxx, after he has
expended the remainder of the Relocation Payment for such purposes, to (1) make
regularly scheduled payments of principal and interest on John's First Mortgage
Loan, (2) pay his costs of maintaining the Property, including, for example, the
payment of repair bills, condominium fees, taxes, insurance and utility bills,
as mutually agreed by Xxxx and Advanta from time to time, (3) pay interest on
that portion of the principal amount of John's HELOC that qualifies as
Reimbursable HELOC Expenses and (4) pay the amount of John's income tax
liability, net of the effect of any income tax deductions for the Property that
are taken by Xxxx, for reimbursement payments for Reimbursable HELOC Expenses
(items (1) through (4), plus that portion of the outstanding balance of
principal of John's HELOC that qualifies as any of items (1) through (4),
collectively, "Reimbursable HELOC Expenses").
(b) Advanta shall reimburse Xxxx for all Reimbursable HELOC
Expenses. Requests for reimbursement may be made by Xxxx as of: (A) the second
anniversary of the Effective Date (hereinafter defined), (B) each subsequent
anniversary of the Effective Date and
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(C) the date determined pursuant to subparagraph (c) of this Paragraph. The
procedure to be followed for reimbursement is as follows:
(i) Xxxx shall submit to Advanta (to the attention of Xxxxx
Xxxx, Vice President of Corporate Administration) a Draw Request Form in the
form attached as Exhibit "B" to this Agreement, together with copies of all
supporting receipts or proof of payment and other appropriate documentation and,
if not clear from the documentation submitted, an explanation of the expenses
represented by such documentation.
(ii) Upon confirmation by Advanta of the expenses that qualify
as Reimbursable HELOC Expenses, Advanta shall reimburse such amount to Xxxx.
(c) For purposes of this Agreement, the term "Termination Date"
shall mean the date determined as follows:
(i) If a Put Option Trigger Event (as hereinafter defined)
occurs and Xxxx: (1) is not eligible to exercise the Put Option (as hereinafter
defined) because the FMV (hereinafter defined) equals or exceeds the Put Option
Sale Price (hereinafter defined) or (2) is eligible to exercise the Put Option
but fails to do so within the fifteen-day period provided in subparagraph 3(c)
below, the Termination Date shall be the date of the first to occur of the
following events:
(A) Xxxx ceases to be President of Advanta Bank Corp.
for any reason; or
(B) Xxxx leaves or retires or otherwise ceases to be
employed by Advanta Bank Corp., Advanta or any other Advanta affiliate for any
reason.
(ii) If a Put Option Trigger Event occurs and Xxxx is eligible
to and does properly exercise the Put Option, the Termination Date shall be the
date of the first to occur of the following events:
(A) The date of settlement for the sale of the Property
pursuant to subparagraph 3(d) below; or
(B) The date of settlement for Advanta's purchase of the
Property pursuant to subparagraph 3(e) below.
(iii) If the Property is sold at any time prior to the
occurrence of a Put Option Trigger Event, the Termination Date shall be the date
of settlement for such sale.
(d) All rights to reimbursement for Reimbursable HELOC Expenses
shall cease as of the date determined as follows:
(i) In the case of subparagraph 2(c)(i) above, the earlier of
the following dates:
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(A) the one hundred eightieth (180th) day after the
Termination Date; or
(B) the date of settlement for the sale of the Property.
(ii) In the case of subparagraphs 2(c)(ii) and (iii) above,
the Termination Date.
3. Option to Put the Property to Advanta.
(a) Within thirty (30) days after the occurrence of a Put Option
Trigger Event (hereinafter defined), or at any other time as Xxxx and Advanta
shall mutually agree, Xxxx shall cause the Property to be appraised (by an
appraiser mutually acceptable to Xxxx and Advanta) to determine its fair market
value ("FMV").
(b) As used in this Agreement, the term "Put Option Trigger Event"
means the first to occur of the following events:
(i) Xxxx ceases to be President of Advanta Bank Corp. for any
reason; or
(ii) Xxxx leaves or retires or otherwise ceases to be employed
by Advanta Bank Corp., Advanta or any other Advanta affiliate for any reason.
(c) In the event that the FMV is less than the Put Option Sale Price
(hereinafter defined), Xxxx shall, within fifteen (15) days after determination
of the FMV, advise Advanta whether he elects to require Advanta to purchase the
Property (the "Put Option").
(d) If Xxxx elects to exercise the Put Option, Xxxx shall, for a
period of one hundred eighty (180) days following the date of the exercise,
diligently attempt to sell the Property to a third party for a price that equals
or exceeds the Put Option Sale Price.
(e) If Xxxx is not successful in selling the Property pursuant to
subparagraph (d) of this Paragraph, then Advanta shall purchase the Property
from Xxxx for an amount equal to the Put Option Sale Price (less any costs, such
as brokerage commissions, that are payable solely in connection with a sale to a
third party), subject to the following conditions:
(i) Title to the Property shall not be subject to any liens,
encumbrances or other title objections created or suffered by Xxxx that are not
contemplated under this Agreement.
(ii) In the event that the Property has been damaged by fire
or other casualty that has not been fully repaired or restored as of the date of
settlement, Xxxx shall (1) pay to Advanta the proceeds of any casualty insurance
received by him and not applied to the repair or restoration of the Property and
(2) assign to Advanta John's right to receive any unpaid insurance proceeds.
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(f) As used in this Agreement, the term "Put Option Sale Price"
means the total of the following estimated amounts:
(i) the outstanding balance of principal and interest of
John's First Mortgage Loan as of the date of settlement for the sale; plus
(ii) the outstanding balance of principal and interest of that
portion of John's HELOC that qualifies as Reimbursable HELOC Expenses (and not
yet reimbursed by Advanta) as of the date of settlement for the sale; plus
(iii) John's cost of the sale, including customary brokerage
commissions and closing costs.
4. Return Amount.
(a) Notwithstanding anything to the contrary contained in this
Agreement, in the event that the Termination Date occurs at any time prior to
the third anniversary of the Effective Date, Xxxx shall return to Advanta, but
only to the extent of any Net Proceeds (as hereinafter defined), a percentage of
the Return Amount (as hereinafter defined) based on the following schedule:
Applicable Period Percentage
----------------- ----------
The Effective Date to the day prior to the first anniversary
of the Effective Date 100.00%
The first anniversary of the Effective Date to the day prior
to the second anniversary of the Effective Date 66.66%
The second anniversary of the Effective Date to the day
prior to the third anniversary of the Effective Date 33.33%
(b) Any Return Amount payable to Advanta pursuant to subsection (a)
of this Paragraph shall be paid on or before the date (the "Determination Date")
that is the earlier to occur of the following:
(i) the date of settlement for the sale of the Property; or
(ii) one hundred eighty (180) days after the Termination Date.
(c) As used in this Paragraph, the following terms have the
following meanings:
(i) "Net Proceeds" means the Gross Proceeds (as hereinafter
defined) less the total of the following amounts:
(A) the outstanding balance of principal and interest of
John's First Mortgage Loan as of the Determination Date; plus
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(B) the outstanding balance of principal and interest of
that portion of John's HELOC that qualifies as Reimbursable HELOC Expenses (and
not yet reimbursed by Advanta) as of the Determination Date; plus
(C) in the case of a sale of the Property, all of John's
costs of the sale, including customary brokerage commissions and closing costs.
(ii) "Gross Proceeds" means:
(A) in the case of a sale of the Property, the actual
gross proceeds of the sale; or
(B) if Xxxx has not sold the Property by the
Determination Date, the FMV.
(iii) "Return Amount" means the total of the following
amounts:
(A) the Equity Amount; plus
(B) the portion of the Relocation Payment used by Xxxx
to purchase furniture for the Property; plus
(C) the portion of the Relocation Payment used by Xxxx
to pay the closing costs of John's purchase of the Property; plus
(D) in the case of any such reimbursements pursuant to
subparagraph 2(d)(i) above, all Reimbursable HELOC Expenses reimbursed by
Advanta to Xxxx with respect to any period following the Termination Date.
5. Effective Date. This Agreement is effective as of May 20, 2004 (the
"Effective Date").
6. Notices. All notices required to be given by either party to this
Agreement (the "Sending Party") to the other party (the "Receiving Party") shall
be given by either hand delivering it or mailing it by first class mail to the
address of the Receiving Party stated in the first paragraph of this Agreement
or to another address if the Receiving Party has sent notice of such other
address to the Sending Party in accordance with this Paragraph 6.
7. Captions. The headings and captions used in this Agreement are for
convenience of reference only and shall not be construed to affect in any way
the interpretation of this Agreement.
8. Successors and Assigns. Subject to the following limitation, this
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective heirs, executors, administrators, successors and
assigns. Notwithstanding the immediately preceding sentence, except for a
transfer that occurs by reason of John's death, Xxxx shall not voluntarily,
involuntarily, or by operation of law assign or transfer any right to receive
funds or any other
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rights or interests he may have under this Agreement, without the prior written
consent of Advanta, which consent may be withheld in the sole discretion of
Advanta.
9. Amendment. This Agreement cannot be changed or amended except by
agreement in writing signed by the party against whom enforcement of the change
or amendment is sought.
10. Governing Law. The provisions of this Agreement shall be construed in
accordance with the laws of the Commonwealth of Pennsylvania, without regard to
its conflicts-of-law principles.
11. Execution in Counterparts. This Agreement may be executed in any
number of counterparts, which together shall be deeded to constitute one and the
same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
ADVANTA CORP.
By: /s/ Xxxxxxxxx Xxx
_____________________________________
Name: Xxxxxxxxx X. Xxx
Title: Senior Vice President and General
Counsel
/s/ Xxxx X. Xxxxx
__________________________________ (SEAL)
XXXX X. XXXXX
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EXHIBIT "A"
DESCRIPTION OF PROPERTY
All of Xxxx 0, of the CANYON RIDGE CONDOMINIUMS, as the same is identified in
the Record of Survey Map recorded in Salt Lake County, Utah, as Entry No.
7697068, in Book 2000P, at Page 211, and in the Declaration of Covenants,
Conditions and Restrictions and Bylaws of the CANYON RIDGE CONDOMINIUMS,
recorded in Salt Lake County, Utah, on August 14, 2000, as Entry No. 7697069.
TOGETHER WITH: (a) the undivided ownership interest in said Condominium
Project's Common Areas and Facilities which are appurtenant to said Unit (the
referenced Declaration of Condominium providing for periodic alteration both in
the magnitude of said undivided ownership interest and in the composition of the
Common Areas and Facilities to which said interest relates), (b) the exclusive
right to use and enjoy each of the Limited Common Areas which is appurtenant to
said Unit, and (c) the non-exclusive right to use and enjoy the Common Areas and
Facilities included in said Condominium Project (as said Project may hereafter
be expanded) in accordance with the aforesaid Declaration and Survey Map (as
said Declaration and Map may hereafter be amended or supplemented) and the Utah
Condominium Ownership Act.
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EXHIBIT "B"
DRAW REQUEST FORM
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