EXHIBIT 8A(i)
BRANCH PURCHASE AND ASSUMPTION AGREEMENT
This PURCHASE AND ASSUMPTION AGREEMENT (this "Agreement") dated as of
May 31, 1996 by and between Rushmore Trust and Savings, FSB, Bethesda, Maryland
("Rushmore") and AmericasBank (in organization), Towson, Maryland
("AmericasBank").
AmericasBank desires to purchase certain assets and assume certain
liabilities associated with Rushmore's branch banking office located at 0000
Xxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000, (the "Baltimore Branch") subject
to the terms and conditions and based upon Rushmore's representations,
warranties, and agreements hereinafter expressed.
Rushmore desires to sell to AmericasBank certain assets and to have
AmericasBank assume certain liabilities associated with the Baltimore Branch,
subject to the terms and conditions and based upon AmericasBank's
representations, warranties, and agreements hereinafter expressed.
In consideration of the mutual covenants and agreements herein
contained and the mutual benefits to be derived herefrom, the parties hereto do
hereby agree as follows:
1. Effective Date and Closing. The transactions provided for herein
shall be on the last day of the month provided it is a business day; if not,
then the preceding day which is a day of business and which shall not be less
than 30 nor more than 45 days following the day on which AmericasBank receives
the approval of the Office of Thrift Supervision (the "OTS") and the Federal
Deposit Insurance Corporation (the "FDIC") to consummate the transactions
provided for herein (the "Effective Date"). The closing of the transactions
provided for herein (the "Closing") shall be at the close of business on the
Effective Date, at which time title to and possession of the assets to be sold
hereunder will be transferred from Rushmore to AmericasBank in accordance with
the procedures set forth in Section 7 hereof.
2. Events Preceding Effectiveness. On or before the Effective Date, the
following shall have occurred:
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(a) A majority of each of the Executive Committee of the Board
of Directors or the Board of Directors of AmericasBank and a disinterested
majority of the Board of Directors of Rushmore shall have approved this
Agreement and the transactions provided for herein; and
(b) the OTS and the FDIC shall have approved this Agreement
and transactions provided for herein.
3. Assets to be Purchased and Liabilities to be Assumed. The following
assets shall be purchased and liabilities shall be assumed hereunder:
3.1 Assets to be Purchased. Rushmore shall sell to
AmericasBank and Americas Bank shall purchase from Rushmore each of the
following assets of Rushmore (the "Assets")
(a) fee simple interest in the real estate, together
with the buildings and improvements constituting the Baltimore Branch location,
which is more particularly described in a Deed attached as Exhibit I hereto
(the "Real Estate");
(b) all fixtures, furnishings, equipment and
furniture (other than Rushmore's signs), security monitoring equipment, teller
equipment, and other tangible property now existing at the Baltimore Branch,
subject to reasonable wear and tear (but not subject to any obligation to make
any extraordinary repairs beyond ordinary and routine maintenance) from the date
of execution of this Agreement to the Closing, more particularly described in
Exhibit II hereto (the "Furnishings");
(c) cash in an amount equal to the face value, plus
accrued interest, (i) of all the deposits in all retail and commercial checking
accounts, statement savings accounts, Insured Investment Accounts, and
individual retirement accounts listed on the books of the Baltimore Branch as of
the close of business on the Effective Date (collectively, the "Accounts"), and
(ii) of all the certificates of deposit listed on the books of the Baltimore
Branch as of the close of business on the Effective Date (the "Certificates")
(the Accounts and the Certificates being referred to collectively as the "Total
Accounts");
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(d) the covenant by Rushmore not to compete with
AmericasBank described in Section 5 (the "Covenant Not to Compete");
(e) the Loans secured by deposits, including accrued
interest.
3.2 Liabilities Assumed. Subject to the provisions of Section
6.2 hereinafter set forth, AmericasBank shall assume no tax or other liabilities
of Rushmore in connection with the purchase of the Assets or otherwise, except
that AmericasBank shall assume each of the following liabilities of Rushmore
without recourse and will indemnify and hold Rushmore harmless from and against
any liability, cost, or expense incurred by Rushmore as a result of
AmericasBank's failure to perform its obligations with respect to any of the
following assumed liabilities (collectively, the "Liabilities"):
(a) the liabilities for payment to the depositors
or order of the Total Accounts and written contractual or statutory obligations
associated with the Total Accounts.
4. Employment Matters. With respect to the Employees:
4.1 Solicitation for Employment. AmericasBank shall offer
employment with AmericasBank to the present Baltimore Branch officers and
employees listed on Exhibit III hereto (the "Officers and Employees") subject to
their continued satisfactory performance of their duties. AmericasBank may
immediately contact and solicit the Officers and Employees for employment.
4.2 Employee Benefits. Officers and Employees who accept
employment with AmericasBank shall receive their current salaries at Rushmore
and shall participate in all other employee benefit plans of AmericasBank.
5. Covenant Not to Compete. Neither Rushmore nor any company affiliated
with Rushmore shall (a) maintain retail banking facilities, including offices
from which checking accounts, savings accounts or certificates or deposit are
offered by Rushmore or any company affiliated with Rushmore to the general
public or operate automated teller machines wholly-owned by Rushmore within five
miles of the Baltimore Branch (the "Covenant Area") for a period of three years
from the date of Closing, or (b) knowingly solicit any
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customers or potential customers of the Baltimore Branch located within the
Covenant Area for banking services described in clause(a). However, this Section
5 shall not prohibit (i) Rushmore or any affiliate from being acquired by a
company that has, or has an affiliate with, a banking office in the Covenant
Area or (ii) Rushmore or any affiliate from acquiring and operating a company
that itself or through an affiliate has an office in the Covenant Area where
that office is an incidental part of a larger acquisition by Rushmore or an
affiliate.
6. Purchase Price, Adjustment, and Payment. The purchase price for the
Assets shall be the sum of the separately bargained for amounts shown in Section
6.1 plus or minus, as the case may be, the adjustments described in Section 6.2
(the "Purchase Price") in accordance with the Closing Statement attached hereto
as Exhibit IV.
6.1 Purchase Price of Assets. At Closing, AmericasBank shall
pay to Rushmore the following purchase price for the Assets, less credits for a
deposit of $20,000.00 paid at the time of signing of this Agreement.
(a) Real Estate and Furnishings: $25,000.00.
(b) Purchase for Total Accounts: 3.5% of the
aggregate balance of the Total Accounts at Closing ("Closing Balance").
(c) AmericasBank shall have the right to allocate
the Purchase Price for the Assets sold hereunder.
(d) the amount of loans secured by the deposits
including accrued interest.
6.2 Adjustments. The Purchase Price shall be adjusted as
follows:
(a) all taxes, utilities, and other public or
governmental charges or assessments relating to the Real Estate which are or may
be payable on an annual basis (including assessments, liens or encumbrances for
sewer, water, drainage or other public improvements completed or commenced on or
prior to the date hereof, or subsequent thereto) shall be prorated as of the
close of business on the Effective Date.
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(b) it is specifically understood and agreed that
the second floor of the Real Estate is leased to a Tenant on a month-to-month
basis for the sum of Three Hundred Dollars ($300.00) per month. Accordingly, all
rent will be adjusted and apportioned as of the Effective Date.
6.3 Payment of the Purchase Price. In settlement of the
Purchase Price:
(a) Rushmore shall transfer all of the non-cash
Assets to AmericasBank;
(b) AmericasBank shall assume the Liabilities
without recourse.
7. Closing Events. At the Closing:
7.1 Real Estate. Rushmore shall deliver to AmericasBank a Deed
for the Real Estate conveying to AmericasBank good and marketable fee simple
title to the Real Estate without any material exception reasonably objectionable
to AmericasBank, containing covenants of special warranty and further
assurances, free and clear of all material liens and encumbrances, except for
recorded easements and covenants and restrictions of record and except for any
matters which may be observed by inspection or disclosed by survey of the Real
Estate or customarily excepted in a title insurance policy.
7.2 Furnishings. Rushmore shall deliver to AmericasBank a Xxxx
of Sale for the Furnishings; such Xxxx of Sale shall grant and convey unto
AmericasBank all of Rushmore's right, title, and interest in the Furnishings,
free and clear of all material liens and encumbrances.
7.3 Total Accounts. Rushmore shall deliver as of the Effective
Date to AmericasBank a revised list of the Total Accounts as of the Effective
Date, and the parties shall execute an Agreement of Assignment and Assumption of
Total Accounts in the form of Exhibit V.
7.4 Transfer of Funds. AmericasBank and Rushmore shall execute
a memorandum of settlement detailing the transfers of funds which occur in
connection with the transactions contemplated by this Agreement, identifying
specifically the Certificates and the
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Accounts being transferred. In the event that after Closing the memorandum of
settlement proves to be inaccurate, the parties will promptly make appropriate
adjustments and accounting, including, but not limited to, any adjustments in
order to reflect the amount of accrued interest on the Total Accounts on the
Effective Date.
7.5 Transfer Amounts to AmericasBank. The net cash transfer
amount due to AmericasBank from Rushmore shall be made in immediately available
funds to the account of AmericasBank maintained at Xxxx Xxxxx-Xxxx Xxxxxx, Inc.,
at Closing.
8. Representations and Warranties of Rushmore. Rushmore hereby
represents and warrants to AmericasBank as follows:
8.1 Organization and Standing of Rushmore. Rushmore is an
organized and validly existing federal savings bank, in good standing, under the
laws of the United States of America, has the corporate power and authority to
conduct its business as it is now being conducted.
8.2 Absence of Certain Changes or Events. Except as heretofore
disclosed in writing to AmericasBank since April 1, 1996, there has not been any
change in the Baltimore Branch's assets to be purchased or liabilities to be
assumed, other than changes in the ordinary course of business which have not
been materially adverse.
8.3 No Conflict with Other Documents. Neither the execution
and delivery of this Agreement nor the carrying out of the transactions
contemplated hereunder will result in any material violation, termination, or
modification of, or be in conflict with, any terms of any contract or other
instrument to which Rushmore is a party, or of any material judgment, decree, or
order applicable to Rushmore, or result in the creation of any material lien,
charge, or encumbrance upon the property or assets of Rushmore being sold
hereunder.
8.4 Title of Assets: Absence of Liens and Encumbrances.
Rushmore is the true owner of and has good title to the assets free and clear of
all pledges, liens, encumbrances, and adverse claims of any kind or character,
but subject to exceptions described in Section 7.1. Rushmore is duly authorized
to transfer and assign the Assets to AmericasBank subject to receipt of
regulatory approval, and the Furnishings shall be in the same condition on the
Effective
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Date as they are on the date hereof, excepting reasonable wear and tear.
8.5 Compliance with Laws. None of the Total Accounts is in
violation of any federal, state, or local laws, regulations, and rulings
applicable thereto, specifically including the Federal Deposit Insurance Act and
any regulations and rulings issued pursuant thereto.
8.6 Litigation, etc. Except as heretofore disclosed in writing
to AmericasBank, there is no litigation, proceeding, or investigation pending
or, to the knowledge of Rushmore, threatened against it with respect to the
operation of the Baltimore Branch which would result in any material adverse
change in the business or financial condition of the Baltimore Branch or any
material liability on the part of Rushmore which questions the validity of this
Agreement or of any action taken or to be taken pursuant hereto or in connection
herewith.
8.7 Authority. The execution, delivery, and performance of
this Agreement by Rushmore have been duly and validly authorized by its Board of
Directors, subject only to the requisite approval by appropriate governmental
regulatory authorities.
8.8 List of Total Accounts. The list of the Total Accounts and
the characteristics of the Total Accounts contained in Exhibit VII hereto is a
complete and accurate list as of the date hereof in all material respects, and
at Closing Rushmore will deliver a complete and accurate list as of the
Effective Date.
8.9 Deposit Data. Data and information provided to
AmericasBank by Rushmore regarding the Total Accounts which were used by
AmericasBank in determining the purchase price shown in Sections 6. l(c) and (d)
accurately reflects the characteristics of the Total Accounts and historical
experience with such deposits in all material respects.
9. Representations and Warranties of AmericasBank. AmericasBank hereby
represents and warrants to Rushmore as follows:
9.1 Organization and Standing of AmericasBank. At the time of
Closing, AmericasBank will be a duly organized and validly existing federal
savings bank, will be in good standing under the
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laws of the United States of America, will have the corporate power and
authority to conduct its business to be conducted.
9.2 No Conflict with Other Documents. Neither the execution
and delivery of this Agreement nor the carrying out of the transactions
contemplated hereunder will result in any violation, termination, or
modification of or be in conflict with, any terms of any contract or other
instrument to which AmericasBank is a party, or of any judgment, decree, or
order applicable to AmericasBank.
9.3 Authority. The execution, delivery, and performance of
this Agreement by AmericasBank have been duly and validly authorized by its
Board of Directors or the Executive Committee of its Board of Directors, or the
Founders Group, subject only to approval by appropriate governmental regulatory
authorities.
9.4 Litigation, etc. At the time of Closing, there will be no
litigation, proceeding, or investigation pending or, to the knowledge of
AmericasBank, threatened against it which might result in any material adverse
change in the business or financial condition of AmericasBank or any material
liability on the part of AmericasBank which questions the validity of this
Agreement or of any action taken or to be taken pursuant hereto or in connection
herewith.
9.5 Deposit. At the Time of the signing of this Agreement, the
Founders Group shall have opened and maintained on behalf of AmericasBank a
$20,000.00 deposit at Rushmore.
9.6 Deposit Insurance. The deposits of AmericasBank are
insured by the Savings Association Insurance Fund to the fullest extent
permitted by law.
10. Covenants of Rushmore. Except as otherwise consented to in writing
by AmericasBank after the date of this Agreement, Rushmore covenants to and
agrees with AmericasBank as follows:
10.1 Information. Rushmore will give to AmericasBank and to
its officers, accountants, counsel, and other representatives full access during
Rushmore's normal business hours upon reasonable notice throughout the period
prior to the Effective Date to all of Rushmore's properties, books, contracts,
customer records (consistent with applicable law), commitments, reports of
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examination (consistent with applicable law), and records which relate to
operation of the Baltimore Branch. Rushmore will furnish AmericasBank during
such period with all such information concerning the Baltimore Branch as
AmericasBank may reasonably request, including information for use in necessary
filings to be made with appropriate governmental regulatory authorities.
AmericasBank shall observe its duty of confidentiality regarding such
information as set forth in Section 11.2.
10.2 Conduct of Rushmore's Business. Pending the Effective
Date, (a) Rushmore will operate the Baltimore Branch only in the ordinary
course; (b) no increase shall be made in any salary or wages (excluding
regularly-scheduled salary increases), and no establishment or increase shall be
made in any bonus, pension, option, incentive or deferred compensation,
retirement, death, profit-sharing, or similar benefits of any of the Officers
and Employees of the Baltimore Branch (excluding bank-wide changes); and (c)
Rushmore shall not knowingly place upon or knowingly permit any material lien or
encumbrance upon any of the Assets. Pending the Effective Date, Rushmore shall
(d) use its best efforts to preserve the Assets subject to normal wear and tear
and to keep available the services of the Officers and Employees; (e) continue
in effect the present method of conducting business at the Baltimore Branch
(excluding bank-wide changes) except as otherwise consented to by AmericasBank,
and (f) consult with AmericasBank as to making decisions or actions in matters
relating to the Baltimore Branch other than those in the ordinary course of
operations.
10.3 Destruction by Fire or Other Casualty; Condemnation.
Rushmore shall obtain replacement insurance to cover the building and its
contents. In the event the Baltimore Branch is damaged or destroyed by fire or
other casualty prior to the Effective Date, Rushmore will immediately sell the
Real Estate to AmericasBank pursuant to Section 6.1(a) at which time Rushmore
shall assign to AmericasBank the insurance proceeds ("Real Estate Closing"), and
subsequent to the Real Estate Closing, transfer to AmericasBank the Total
Accounts pursuant to this Agreement. AmericasBank will reconstruct the Baltimore
Branch so that it is in reasonably the same condition as it was prior to the
fire or other casualty. Prior to Closing, AmericasBank will lease the Baltimore
Branch to Rushmore on a month to month basis for a monthly rent not to exceed
$400 per month. In the event that the Baltimore Branch or any portion thereof is
condemned, AmericasBank shall succeed to
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Rushmore's interest in any condemnation award received and proceed to Closing.
10.4 Installation of Equipment. Subject to obtaining any
required consents, and after issuance of a new thrift charter by the OTS,
Rushmore shall permit AmericasBank to install (without disruption of business
activities) teller equipment and security monitoring systems at the Baltimore
Branch prior to the Effective Date so that the same shall be operational on the
Effective Date, provided that in the event the transactions contemplated by this
Agreement are not consummated, AmericasBank shall at its expense remove teller
equipment and the security monitoring system and restore the premises to the
same condition as they were prior to installation of such systems.
10.5 Customer Information. Rushmore shall, upon the execution
of this Agreement, make available to AmericasBank all material information
regarding the Assets (consistent with applicable law), including customer lists,
account numbers and amounts, maturity schedules, and other data necessary to
effect an orderly transfer of the Assets at Closing. AmericasBank shall observe
its duty of confidentiality regarding such information as set forth in Section
11.2. Provided AmericasBank receives the prior written approval of Rushmore as
to the timing and content of any contact prior to the Effective Date with
Rushmore's customers, which approval will not be unreasonably withheld,
AmericasBank may contact the retail or commercial customers of Rushmore whose
Total Accounts are being assumed pursuant to this Agreement no sooner than 30
days prior to closing.
10.6 Exception of Additional Documents. Rushmore will execute
all documents that AmericasBank may reasonably require to evidence Rushmore's
ownership of the Assets.
10.7 Notice to Depositors. Rushmore will contact each person
having a deposit at the Baltimore Branch and will, at least 30 days prior to the
Closing, advise such persons in writing that their deposit will be transferred
and assumed by AmericasBank hereunder unless other arrangements are made by the
depositor; the form of notice provided to the depositors shall be in a form
satisfactory to AmericasBank and shall authorize AmericasBank to receive
information on each of the customer's Accounts prior to the Effective Date
unless the customer objects; and Rushmore will use
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its best efforts to secure the transfer of the maximum amount of deposits to
AmericasBank.
10.8 Press Release. AmericasBank and Rushmore shall jointly
agree on a press release or other media communication relative to the sale and
purchase of the Baltimore Branch.
10.9 Maintenance of Real Estate and Furnishings. Rushmore
shall continue reasonable maintenance of an ordinary and routine nature of the
Real Estate and Furnishings from the date of execution of this Agreement to the
Closing.
11. Covenants of AmericasBank. Except as otherwise consented to in
writing by Rushmore after the date of this Agreement, AmericasBank covenants to
and agrees with Rushmore as follows:
11.1 Performance. Subject to Rushmore's representations and
warranties contained in this Agreement, AmericasBank will accept the Assets and
assume and perform its obligations under this Agreement and the accompanying
Exhibits.
11.2 Protection of Information. AmericasBank will hold all
customer lists and account information provided by Rushmore in confidence except
to the extent that it is required to disclose such information to stockholders,
to the public, or in filings with governmental regulatory authorities. In the
event the sale and purchase of the Assets and assumption of the Liabilities as
provided in this Agreement are not consummated, AmericasBank agrees that it will
return all customer lists and account information provided by Rushmore and all
copies of abstracts thereof made by AmericasBank and shall not in any manner
retain, use, or disclose the customer lists and account provided by Rushmore.
AmericasBank will make available to Rushmore during normal business hours and at
Rushmore's expense copies of all documents provided under Section 7.5 for any
appropriate and non-competitive business reasons.
12. Conditions Precedent to AmericasBank' s Obligations Hereunder.
Unless waived in writing by AmericasBank in its sole discretion, all obligations
of AmericasBank hereunder shall be subject to the fulfillment prior to or at the
Effective Date of the following conditions:
12.1 Representations. Warranties and Covenants. The
representations and warranties of Rushmore herein contained shall
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be true as of the Effective Date, shall be deemed made again at and as of the
Effective Date, and shall be true as so made again; Rushmore shall have
performed all obligations and complied with all covenants required by this
Agreement to be performed or complied with by it on or prior to the Effective
Date; and AmericasBank shall have received from Rushmore an officers'
certificate in such detail as AmericasBank may reasonably request, dated the
Effective Date and signed by its president or senior executive vice president
and cashier or secretary, to the foregoing effect.
12.2 Events Preceding to the Effective Date. Each of the
events set forth in Section 2 shall have occurred.
12.3 Procedures. AmericasBank and Rushmore shall have agreed
upon the procedures, mechanical processes, and other details necessary to
transfer the Assets and assume the Liabilities in accordance with this Agreement
and the attached Exhibits.
12.4 No Adverse Proceedings or Events. No action or proceeding
against AmericasBank or the consummation of the transactions contemplated by
this Agreement shall have been instituted or threatened or any investigations
undertaken that might result in any such action or proceeding, no order of any
court entered, and no other event shall have occurred or not occurred, on or
before the Effective Date, which, in the opinion of AmericasBank's counsel,
renders it impossible or inadvisable for legal reasons for AmericasBank to
consummate the transactions contemplated by this Agreement.
12.5 Consents, etc. All requisite consents, undertakings,
agreements, exercises, and terminations of any third parties shall have been
obtained either to the satisfaction of AmericasBank or waived by AmericasBank.
13. Conditions Precedent to Rushmore's Obligations Hereunder. Unless
waived in writing by Rushmore in its sole discretion, all obligations of
Rushmore hereunder shall be subject to the fulfillment prior to or at the
Effective Date of the following conditions.
13.1 Representations, Warranties, and Covenants. The
representations and warranties of AmericasBank herein contained shall be true as
of the Effective Date, shall be deemed made again at and as of the Effective
Date, and shall be true as so made
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again. AmericasBank shall have performed all obligations and compiled with all
covenants required by this Agreement to be performed or complied with by it on
or prior to the Effective Date; and shall have received from AmericasBank an
officers' certificate in such detail as Rushmore may reasonably request, dated
the Effective Date and signed by its president and cashier or secretary, to the
foregoing effect.
13.2 Events Preceding the Effective Date. Each of the events
set forth in Section 2 shall have occurred.
13.3 Procedures. AmericasBank and Rushmore shall have agreed
upon the procedures, mechanical processes, and other details necessary to
transfer the Assets and assume the Liabilities in accordance with this Agreement
and the attached exhibits.
13.4 No Adverse Proceedings or Events. No action or proceeding
against Rushmore or the consummation of the transactions contemplated by this
Agreement shall have been instituted or threatened or any investigations
undertaken that might result in any such action or proceeding, no order of any
court entered, and no other event shall have occurred or not occurred, on or
before the Effective Date, which, in the opinion of Rushmore's counsel, renders
it impossible or inadvisable for legal reasons for Rushmore to consummate the
transactions contemplated by this Agreement.
14. Amendment of the Agreement. This Agreement may be amended at any
time provided that any such amendment is in writing and is approved by both of
the parties hereto.
14.1 Termination of Agreement. This Agreement shall terminate
and be of no further force or effect as between the parties hereto, except as to
the provisions of Section 14.5 hereof and liability for breach of any material
covenant, agreement, representation, or warranty occurring or arising prior to
the date of termination, upon the occurrence of any of the following:
(a) Immediately upon the expiration of thirty (30)
days from the date that Rushmore has given notice to AmericasBank of a breach or
default by AmericasBank in the performance of any covenant, agreement,
representation, warranty, duty, or obligation hereunder, provided, however, that
no such termination shall be effective if, within such thirty (30) day period,
AmericasBank shall have substantially corrected and cured, to Rushmore's
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reasonable satisfaction, the grounds for termination as set forth in such notice
of termination or Rushmore shall have waived such default or breach or shall
have extended the time for such cure;
(b) Immediately upon the expiration of thirty (30)
days from the date that AmericasBank has given notice to Rushmore of a breach or
default by Rushmore in the performance of any covenant, agreement,
representation, warranty, duty, or obligation hereunder, provided, however that
no such termination shall be effective if, within such thirty (30) day period.
Rushmore shall have substantially corrected and cured, to AmericasBank's
reasonable satisfaction, the grounds for termination as set forth in such notice
of termination or AmericasBank shall have waived such default or breach or shall
have extended the time for such cure; or
(c) By the Board of Directors of AmericasBank or
Rushmore, or the proper officers of either party acting pursuant to the
authority of their respective Board of Directors, if the Closing has not
occurred upon the latter of four months from the date of this Agreement or the
date of approval by OTS of the issuance of the Charter, but, in any event, no
later than October 31, 1996. Provided, however, that Rushmore agrees to grant,
if needed, a reasonable extension of this date, provided, that the approval by
OTS is imminent and AmericasBank has performed all that is required to pursue
its Application for a new charter however, in no event beyond December 31, 1996.
14.2 Immaterial Breach. Notwithstanding anything to the
contrary contained herein, no party hereto shall have the right to terminate
this Agreement on account of its own breach or because of any immaterial breach
by any other party hereto of any covenant, agreement representation, warranty,
duty, or obligation hereunder. Failure to clear an Encumbrance on an asset prior
to Closing shall be an Immaterial Breach under this Section provided that such
Encumbrance does not materially affect the value or use of the Asset.
14.3 Waiver of Right to Terminate. Any party may, at its
election, waive any of its respective rights to terminate this Agreement under
the foregoing provisions of this Section, and the parties shall be deemed to
have waived such rights from and after the Closing Date even though actual
settlement may have been delayed.
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14.4 Effect of Termination. Except as otherwise provided in
this Agreement, in the event of termination of this Agreement, each party shall
be responsible for its own expenses and neither party shall be liable in damages
to the other unless termination results from the breach or default of this
Agreement by one of the parties.
14.5 Break-Up Fee to Rushmore. AmericasBank hereby
acknowledges that, in negotiating and executing this Agreement and in taking the
steps necessary or appropriate to effect the transactions contemplated hereby,
Rushmore has incurred and will incur direct and indirect monetary costs
(including without limitation attorneys' fees and costs, costs of Rushmore
management and employee time and potential damage to Rushmore's business and
franchises as a result of the announcement of this pending transaction) and will
forego discussions with other potential acquirors of the Assets and Liabilities.
To compensate Rushmore for such costs and to induce it to forego such
discussions, if AmericasBank terminates or fails to consummate this Agreement
for any reason other than the ability of Rushmore to consummate the transaction,
then AmericasBank shall forfeit its Twenty Thousand Dollar ($20,000.00) deposit
at Rushmore.
15. Effect on Third parties. Except as otherwise provided by law,
neither the rights of creditors and depositors of Rushmore, nor any liability or
obligation for payment of money, nor any claim or cause of action against
Rushmore shall be in any manner released or impaired by this Agreement or by the
transactions contemplated hereunder, and the rights and obligations of all
creditors and depositors and of all other persons shall remain unimpaired, but
AmericasBank shall succeed to all such obligations and liabilities which are
included among the Liabilities as of the Closing and shall be liable from then
and thereafter to pay, discharge, and perform all such liabilities and
obligations of Rushmore assumed pursuant to this Agreement and in connection
with the transactions contemplated hereunder in the same manner as if
AmericasBank had itself incurred such liabilities or obligations, and
AmericasBank shall succeed to all of the rights, offsets, and defenses of
Rushmore in connection therewith.
16. Expenses. Whether or not the transactions hereunder are consummated
and subject to Section 7.4, each party to this Agreement shall pay its own
expenses relating hereto, including fees and disbursements of its counsel and
accountants. Further,
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AmericasBank shall bear the costs of documentary stamps and recordation fees,
sales taxes, excise taxes, title examination fees, and transfer taxes on the
Real Estate together with the cost of all regulatory filings and filing fees as
they may apply to AmericasBank and the costs of mailings to depositors.
16.1 Disputes as to Calculations. AmericasBank and Rushmore
agree to use their best efforts to agree on the calculation of the Payment
Amount. In the event that the parties should fail to agree on the calculation,
the parties agree to refer the matter in dispute with respect to such
calculation to an independent firm of certified public accountants of national
standing reasonably acceptable to AmericasBank and Rushmore, and AmericasBank
and Rushmore agree to be bound by the determination of such firm with respect to
the disputed matter relating to the calculation of the Payment Amount.
AmericasBank and Rushmore agree to share equally the fees and charges of such
accounting firm for its services in resolving such dispute. If in the resolution
of the dispute it is determined that one party owes an amount to the other
party, the paying party shall also pay interest on such amount from the date it
should have been paid to the date of payment at the same rate as provided in
Section 16.1.
16.2 Check Processing and Reimbursements. For a period of
thirty (30) calendar days after the Closing Date, Rushmore shall continue to
clear checks or drafts drawn on retail and commercial checking accounts,
statement savings accounts and Insured Investment accounts and individual
retirement accounts transferred to AmericasBank pursuant to this Agreement, and
AmericasBank shall reimburse Rushmore for the amount of funds paid on such
checks or drafts, by wire transfer in immediately available funds, as herein
provided. During said thirty (30) calendar day period, Rushmore shall place all
such checks or drafts received for collection on Deposit Accounts into the
possession of a courier (the Federal Express, Purolater, etc.) for delivery to
Electronic Data Services ("EDS") in Herndon, Virginia, by the morning of the
following Business Day. Prior to 3:00 p.m. on the day of such receipt,
AmericasBank shall make payment to Rushmore in the aggregate amount of such
checks or drafts. AmericasBank shall be responsible for determining if each such
check or draft delivered is properly payable. If any such check or draft is not
properly payable, AmericasBank shall dishonor such check or draft and return it
to Rushmore, which shall return such check or draft to the Federal Reserve Bank
with jurisdiction over Rushmore and AmericasBank, for
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credit to Rushmore's account. When Rushmore's account at the Federal Reserve
Bank is so credited, Rushmore shall reimburse AmericasBank for AmericasBank
payment to Rushmore hereunder. In addition, Rushmore shall segregate and notify
AmericasBank by telephone of any check or draft in an amount equal to or
exceeding $2,500. AmericasBank shall inform Rushmore whether any such check or
draft is properly payable, and, if it is, AmericasBank shall make payment to
Rushmore in the amount of such check or draft. If such check or draft is not
properly payable, Rushmore shall dishonor said draft and return it to the
Federal Reserve Bank for credit to Rushmore's account. After the thirty (30)
calendar day period, Rushmore shall not accept any such checks and such checks
shall be returned marked "Account number not properly formatted."
16.3 ACH Transactions. With respect to the direct pay and
automated clearing house transactions requested by customers of the Baltimore
Branch after the Closing Date, AmericasBank agrees to use its best efforts to
notify, within thirty (30) days after Closing, the appropriate Federal Reserve
Bank to redirect such direct pay and automated clearing house transactions from
Rushmore to AmericasBank. Rushmore agrees that for a period of six (6) months
following the Closing Date it will effectuate such requests in the same manner
and with the same diligence as it would have prior to the Closing Date. Rushmore
agrees to provide AmericasBank with the daily detail necessary for AmericasBank
to timely credit or debit the customer's account and to allow AmericasBank to
send Notifications of Changes. Rushmore and AmericasBank agree to a timely net
daily settlement of these transactions. At the end of such period of six (6)
months, Rushmore shall discontinue accepting and forwarding ACH entries and
funds and return them to the originators marked "Account Closed."
16.4 Returned Items. With respect to any items that are
credited to an account being transferred to AmericasBank pursuant hereto that
are returned unpaid ("Returned Item"), AmericasBank shall repay the amount to
Rushmore unless Rushmore has not followed its normal funds availability policy.
16.5 Records and Financial Information. The party having
control of the relevant records and financial information used in connection
with any adjustment provided for in this Section shall certify the accuracy of
such record and financial information if so requested by the other party, and
such request is reasonable.
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17. Notices. All notices, requests, demands and other communications
under or connected with this Agreement shall be in writing, and, (a) if to
AmericasBank, shall be addressed to AmericasBank, Attention: J. Xxxxxxxx Xxxxxxx
III, 000 Xxxx Xxxxx Xxxx, Xxxxxx, Xxxxxxxx, 00000, and, if to Rushmore, shall be
addressed to 0000 Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxx
X. X'Xxxxxx III. Any such notices, requests, demands, and other communications
shall be mailed, postage prepaid, first class mail, or delivered personally and
shall be sufficient and effective when delivered to or received at the address
as specified. Each of the parties may change the address at which it is to
receive communications by like written notice to the other.
17.1 Tax Information and Withholding. All tax information
reporting and filing requirements and all tax withholding requirements with
respect to the Real Property and Liabilities shall be the responsibility of
Rushmore up to the Closing and the responsibility of AmericasBank thereafter.
17.2 Successors and Assigns. All terms and provisions of the
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective transferees, successors, and assigns, provided, however,
that this Agreement and all rights, privileges, duties, and obligations of the
parties hereto may not be assigned or delegated by either party hereto after the
Closing Date without the written consent of the other party to this Agreement
and provided further that in case of any such assignment or delegation, the
party assigning or delegating also shall remain responsible as a party hereto.
17.3 Release. AmericasBank hereby releases and waives any and
all claims that it has or may have against Rushmore with respect to the
condition of the Real Property. AmericasBank acknowledges to Rushmore that it
has had the opportunity under this Agreement to fully inspect the Real Property
and AmericasBank assumes the responsibility and risks of all defects and
conditions, including such defects and conditions, if any, that cannot be
observed by casual inspection.
17.4 Third-Party Beneficiaries. Each party hereto intends that
this Agreement shall not benefit or create any right or cause of action in or on
behalf of any person other than the parties hereto.
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17.5 Governing Law. This Agreement is made and entered into in
the State of Maryland, and the laws of that State shall govern the validity and
interpretation hereof and the performance of the parties hereto of their
respective duties and obligations hereunder.
17.6 Partial Invalidity. If any portion of this Agreement
shall be invalid or unenforceable, such unenforceability or invalidity shall not
affect the remainder of the Agreement.
18. Entire Agreement: Effect. This Agreement (including the Exhibits,
list, schedules and documents delivered pursuant hereto, which are made a part
hereof) is intended by the parties to and does constitute the entire agreement
of the parties with respect to the transaction contemplated hereunder. This
Agreement supersedes any and all prior understandings, and it may not be
changed, waived, discharged, or terminated orally, but only in writing by a
party against which enforcement of the change, waiver, discharge or termination
is sought.
19. General. The section headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretations of this Agreement. This Agreement may be executed simultaneously
in two or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument. This Agreement
shall inure to the benefit of and be binding upon the parties hereto and their
respective successors, but shall not be assigned, and shall not create any
rights in third parties, including stockholders or employees of either party
hereto. All representations, warranties, agreements and covenants shall be
deemed to be conditions to the Agreement and shall not survive the Effective
Date, except for Section 16.2 and 16.3.
IN WITNESS WHEREOF, AmericasBank and Rushmore have caused this
Agreement to be duly executed by their respective representatives, thereunto
duly authorized, as of the date first above written.
AMERICASBANK (in formation)
By: /s/ J. Xxxxxxxx Xxxxxxx, III
________________________________
J. XXXXXXXX XXXXXXX, III
Duly Authorized Representative
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RUSHMORE TRUST AND SAVINGS, FSB
By: /s/ Xxxxxx X. X'Xxxxxx, III
________________________________
XXXXXX X. X'XXXXXX, III
Duly Authorized Representative
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LIST OF EXHIBITS
Exhibit Section in
Number Title Agreement
------ ----- ----------
I Deed to Baltimore Branch 3.1(a),7.1
II Furnishings Included in Sale 3.1(b)
III Officers and Employees 4
IV Closing Statement 6
V Agreement of Assignment and Assumption 7.3
of Total Accounts
VI List of Total Accounts 3.1
(a) Retail and commercial checking
accounts
(b) Statement savings accounts
(c) Insured investment accounts
(d) Individual retirement accounts
(e) Certificate of deposit
The Registrant will furnish supplementally a copy of any omitted schedule to the
Securities and Exchange Commission upon request.
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