Exhibit 10.16
BRANCH PURCHASE
AND
DEPOSIT ASSUMPTION AGREEMENT
=======================
By and Between
POINTE BANK
AND
REPUBLIC BANK
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Table of Contents
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Page
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1. Assumption of Deposit Accounts, Loans, Fixed
Assets, Safe Deposit Obligations and Contracts..........................3
2. Assumption of Leases....................................................6
3. Loan Participations.....................................................7
4. Closing.................................................................7
5. Payment.................................................................8
6. Reporting of Allocation ................................................9
7. Transfer of Records: Notice to Customers: Post-
Closing Reconciliation of NOW Account Transactions......................10
8. Data Processing.........................................................12
9. Conduct of Business Prior to Closing....................................12
10. Representations and Warranties of Republic..............................13
11. Representations and Warranties of Pointe................................16
12. Survival of Representations and Warranties;
Indemnification.........................................................17
13. Conditions to the Closing...............................................19
14. Requirements of Regulatory Authorities..................................22
15. Covenant Not To Compete.................................................22
16. Subject Office Employees...............................................23
17. Additional Covenants; Prorations........................................23
18. Termination.............................................................24
19. Expenses................................................................24
20. Confidentiality.........................................................24
21. Notices.................................................................25
22. Entire Agreement, Modifications, Waivers, Headings......................26
23. Successors and Assigns..................................................26
24. Counterparts............................................................27
25. Governing Law...........................................................27
26. Public Announcements....................................................27
(i)
BRANCH PURCHASE
AND
DEPOSIT ASSUMPTION AGREEMENT
BRANCH PURCHASE AND DEPOSIT ASSUMPTION AGREEMENT (this "Agreement")
made and entered into as of January 4, 2001, by and between Pointe Bank
("Pointe"), a Florida chartered commercial bank and having its principal office
in Boca Raton, Florida, and Republic Bank ("Republic"), a Florida chartered
commercial bank having its main office in St. Petersburg, Florida.
R E C I T A T I O N S
A. Each of Pointe and Republic is a commercial bank having branch
offices in the State of Florida, the deposit accounts of which are insured by
the Federal Deposit Insurance Corporation (the "FDIC").
B. Subject to the terms and conditions hereof, Republic wishes to sell
and transfer to Pointe, and Pointe wishes to purchase and operate, those certain
branch offices currently operated by Republic and located at 00 X.X. 00xx
Xxxxxx, Xxxxx, Xxxxxxx 00000 (the "Airpark Branch"), 0000 X.X. 00xx Xxxxxx,
Xxxxx, Xxxxxxx 00000 (the "Doral Branch"), 0000 Xxxxx Xxxxx Xxxxxxx, Xxxxx,
Xxxxxxx 00000 (the "South Miami Branch"), and 0000 Xxxxx XxXxxx Xxxxxxxxx, Xxxxx
Xxxxxx, Xxxxxxx 00000 (the "Coral Gables Branch"). Additionally, Republic wishes
to assign and Pointe wishes to purchase and assume certain deposit liabilities
and assets domiciled or related to the branch office operated by Republic
located at 00000 Xxxxx Xxxxxxx Xxxxx, Xxxxx, Xxxxxxx 00000 (the "Town & Country
Branch"). Effective no later than the Closing Date, Republic will cease its
operations at the Town & Country Branch and transfer the deposits and loans
associated with that branch to the South Miami Branch. Collectively the Airpark
Branch, Doral Branch,
South Miami Branch, Coral Gables Branch and the Town & Country Branch, will be
referred to herein as the "Subject Offices".
C. Pointe proposes to file applications with the Florida Department of
Banking and Finance (the "DBF") and the Federal Reserve Bank of Atlanta (the
"FRB-A") for permission to operate branch offices at the location of the Subject
Offices except the Town & Country Branch, and any other applications required by
state law and federal laws or regulations, and if such applications are
approved, to take over and operate the Subject Offices, except the Town &
Country Branch, as branch offices of Pointe and to assume the deposits domiciled
at the Subject Offices.
D. Subject to the terms and conditions hereof, for the convenience of
the depositors of the Subject Offices, Republic desires to relinquish to Pointe,
and Pointe is willing to assume and acquire certain of the deposit accounts and
other loans that are attributable to the Subject Offices.
E. Subject to the terms and conditions hereof, Republic desires to
relinquish to Pointe and Pointe is willing to assume and acquire certain of
Republic's loans that are secured by the deposit accounts that are attributable
to the Subject Offices.
F. Subject to the terms and conditions hereof, Republic desires to
assign and relinquish to Pointe all of Republic's rights, title and interest,
and Pointe is willing to assume from Republic all of Republic's obligations,
under: (i) that certain lease dated June 22, 1998 (as subsequently amended), by
and between NationsBank, N.A., a National Banking Corporation (the "Airpark
Landlord") with respect to the occupancy of the Airpark Branch (the "Airpark
Lease"); (ii) that certain lease dated June 22, 1998 (as subsequently amended),
by and between NationsBank, N.A., a National Banking Corporation (the "Doral
Landlord") with respect to the occupancy of the Doral Branch (the "Doral
Lease"); (iii) that certain lease dated March 17, 1997 by and between Xxxxx
Pointe Associates (the "South Miami Landlord") with respect to the occupancy of
the South Miami Branch (the "South Miami Lease"); and (iv) that certain lease
dated May 7, 1998 by and between
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222 Xxxxx Corporation (the "Coral Gables Landlord") with respect to the
occupancy of the Coral Gables Branch (the "Coral Gables Lease"). Collectively,
the Airpark Landlord, the Doral Landlord, the South Miami Landlord and the Coral
Gables Landlord shall be referred herein to as the "Landlords" and the Airpark
Lease, the Doral Lease, the South Miami Lease and the Coral Gables Lease shall
be referred to as the "Leases".
G. Subject to the terms and conditions hereof, Republic desires to sell
to Pointe and Pointe desires to purchase from Republic at their current book
value certain fixed assets of Republic located at the Subject Offices, except
the Town & Country Branch.
NOW, THEREFORE, the parties hereto agree as follows:
1. Assumption of Deposit Accounts, Loans, Fixed Assets, Safe
Deposit Obligations and Contracts.
(a) On the date of the Closing, as described in Section 3
hereof (the "Closing Date") and subject to the terms and conditions set forth
herein, Pointe shall assume, by documents in form and substance reasonably
satisfactory to Republic, the liability of Republic for the payment of principal
and accrued but previously unpaid interests on all deposit accounts, including
any accounts accessible by check or negotiated orders of withdrawal ("NOW
Accounts"), which are on deposit at the Subject Offices as of the Closing Date,
but excluding any deposit accounts that are contractually related to a
repurchase agreement ("Sweep Accounts") or any other accounts which by their
terms are not subject to assignment. The deposit accounts to be assumed by
Pointe shall hereinafter be referred to as the "Deposit Accounts". Under cover
of letter dated of even date herewith, Republic has delivered to Pointe a true
and accurate schedule of the Deposit Accounts as of a date within 5 days prior
to the date of this Agreement. An updated Schedule of Deposit Accounts that
shall be prepared within forty-eight (48) hours prior to the Closing Date shall
be delivered by Republic to Pointe at the Closing. In connection with the
assumption by Pointe of the Deposit Accounts, Republic shall transfer and
deliver to Pointe as of the Closing
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Date all records, documents and information relating to the Deposit Accounts.
(b) At end as of the Closing Date, Pointe shall acquire from
Republic at the principal balance, and Republic shall transfer, endorse and
assign, without recourse or, except as otherwise provided herein, warranties or
representations as to collectabililty, to Pointe, by documents in form and
substance reasonably satisfactory to Pointe all of Republic's right, title and
interests, including servicing interests, in and to Republic's loans existing on
the Closing Date that are domiciled at the Subject Offices which in each case
are not more than 30 days delinquent (the "Loans"). The aggregate dollar value
of the Loans shall hereafter be referred to as the "Loan Price". Under cover of
a letter dated of even date herewith, Republic has delivered to Pointe a true
and correct Schedule of Loans as of a date within 5 days prior to the date of
this Agreement. An updated Schedule of Loans that shall be prepared within 48
hours prior to the Closing Date shall be delivered by Republic to Pointe at the
Closing.
(c) On and as of the Closing Date, Republic will sell, assign
and transfer to Pointe by xxxx of sale or other appropriate document of
transfer, in form and substance satisfactory to Pointe, and Pointe will purchase
from Republic at the book value thereof as of the Closing date, determined from
the books and records of Republic in accordance with Republic's consistent
reasonable past accounting practices, all leasehold improvements, furniture,
fixtures, equipment and other assets of Republic located at the Subject Offices,
except the Town & Country Branch, and more particularly described (including the
original cost and current book value thereof) in the Inventory of Fixed Assets
attached hereto as Schedule l(c) (collectively, the "Fixed Assets"). Except as
provided in this Agreement, the Fixed Assets are acquired without representation
and warranty, on an "as is", "where is" basis. Within thirty (30) days after
receipt by Pointe of Schedule l(c), Pointe shall conduct an inspection of the
Subject Offices. If, upon such inspection, Pointe shall reasonably determine in
good faith that any asset listed on Schedule l(c) is not compatible with, useful
to and usable by Pointe, and shall notify Republic of such determination
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within three (3) days following such inspection, then such asset will be
excluded from Schedule l(c). Notwithstanding anything herein to the contrary,
the Fixed Assets shall not include any data terminals or any signs or other
items with Republic's name or logo permanently affixed thereto.
(d) As of the Closing Date: (i) Pointe will assume and
discharge Republic's obligations with respect to the safe deposit box business
at the Subject Offices in accordance with the terms and conditions of contracts
or rental agreements related to such business, and Pointe will maintain all
facilities necessary for the use of such safe deposit boxes by persons entitled
to use them; (ii) Republic shall transfer and assign the records related to such
safe deposit box business to Pointe and Pointe shall maintain and safeguard all
such records and be responsible for granting access to and protecting the
contents of safe deposit boxes at the Subject Offices. Safe deposit box rental
payments and late payment fees collected by Republic before the Closing Date
shall be prorated.
(e) At the Closing Republic will assign to Pointe all of
Republic's right, title-and interest in and to, and Pointe will assume and agree
to perform all of Republic's obligations under those service contracts, and
equipment leases (collectively the "Contracts") covering the premises and
furnishings and equipment associated with the Subject Offices, except the Town &
Country Branch, identified on Schedule l(d) hereto, which are assignable and
have been designated by Pointe as acceptable. Republic shall within 5 days of
the date hereof, deliver to Pointe copies of all such Contracts. Pointe shall,
within 30 days of receipt of such copies, review the Contracts and designate to
Republic in writing those Contracts that are to be assigned to and assumed by
Pointe as of the Closing Date.
(f) Republic shall cooperate with Pointe and use its best
efforts to assist in the transfer to Pointe of the Deposit Accounts, the Loans,
the Fixed Assets and the Contracts, and shall take all actions necessary to
accomplish such transfer, including but not limited to the provision of any
required notices to customers in respect of the Deposit Accounts and the Loans.
Republic shall supply Pointe with such information and records relating to the
Deposit Accounts
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and the Loans as Pointe may reasonably request, including, but not limited to,
computer tapes setting forth current account information as to all of the
Deposit Accounts and Loans in machine-readable form and any information required
for inclusion in a11 applications to regulatory authorities necessary to
consummate the transactions contemplated by this Agreement. Pointe (and any
accountants, attorneys or other professionals employed by Pointe) shall have the
right to inspect Republic's books and records with respect to the Subject
Offices at reasonable times during normal business hours and upon reasonable
notice to Republic. Republic and Pointe shall each provide to the United States
Internal Revenue Service, to the extent required by law, Forms 1099 with respect
to each depositor in respect of the Deposit Accounts for the periods during
which Republic and Pointe, respectively, administered the Deposit Accounts.
Following the Closing Date, Republic shall continue to provide assistance to
Pointe in effecting an orderly transfer to Pointe of the Deposit Accounts, the
Loans, the Contract and the Fixed Assets and, in pursuance thereof, shall at any
time and from time to time upon the request of Pointe execute and deliver to
Pointe such further documents, certificates, assignments, receipts, endorsements
and instruments of transfer as Pointe may reasonably require. Without limiting
the generality of the foregoing, Republic shall provide all information and take
all steps required to be taken by it that are reasonably necessary for Pointe to
effect the transfer of any direct deposit arrangement affecting any of the
Deposit Accounts and shall promptly pay to Pointe any funds received by Republic
which are intended to be credited to any such Deposit Accounts. Pointe shall
complete all actions necessary to effect the transfer of such direct deposit
arrangements within 90 days of the Closing Date. Republic shall have the right
to return to the payor any direct deposit item received by it subsequent to 90
days after the Closing Date . Republic may pass along to Pointe the costs
Republic incurs in providing the items which Pointe may require pursuant to this
Paragraph l(e).
2. Assumption of Leases.
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(a) On and as of the Closing Date and subject to the terms and
conditions set
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xxxxx xxxxxx, Xxxxxxxx shall assign to Pointe all of its right, title and
interest under the Leases and shall vacate the Airpark Branch, the Doral Branch,
the South Miami Branch and the Coral Gables Branch and turn possession of such
office over to Pointe and Pointe shall assume the performance of all of the
terms, covenants, conditions and obligations of the tenant under the Leases
arising from and after the Closing Date. Republic shall, at its own expense,
obtain and deliver to Pointe at the Closing the consent of the Landlords to the
assignment of the Leases contemplated by this Agreement which consent shall be
substantially in the form attached hereto as Schedule 2.
(b) Republic agrees to pay to Pointe the sum of $445,097.71 as
a market adjustment in respect of the Leases (the "Lease Adjustment").
3. Loan Participations .
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On the closing date Republic agrees to sell to Pointe and,
subject to due diligence, Pointe agrees to purchase from Republic participation
interests (the "Participations") in commercial real estate loans (the "Other
Loans") originated by and in the portfolio of Republic. The aggregate dollar
amount of the Participations purchased by Pointe will be up to $25,000,000 and
the interest rate of the Participations will be at a coupon rate acceptable to
Pointe. The actual aggregate dollar amount of Participations purchased by Pointe
shall hereafter be referred to as the "Participation Price". Republic shall have
the right, but not the obligation, to repurchase the Participations in
accordance with the following schedule: (i) six (6) months after the Closing
Date - 25% of the then outstanding dollar balance of the Participations; (ii)
twelve (12) months after the Closing Date - 33 1/3% of the then outstanding
dollar balance of the Participations; (iii) fifteen (15) months after the
Closing Date - 50% of the then outstanding dollar balance of the Participations;
and (iv) eighteen months after the Closing Date - the then remaining dollar
balance of the Participations.
4. Closing.
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The closing of the transactions provided for herein shall take
place by the most
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practicable combination of telephone conferences, fax deliveries, wire transfers
and overnight mail deliveries initiated at the close of banking business on an
agreed upon day during the month in which all conditions specified in Sections
12 and 13 hereof have been satisfied or waived.
5. Payment.
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(a) Closing Date Payment. At the Closing, Republic shall pay
to Pointe by wire transfer of immediately available funds an amount (the
"Payment Amount") computed as follows:
(i) An amount estimated to be equal to the aggregate
principal amount of and accrued interest on the Deposit Accounts as of the
Closing Date (the "Estimated Deposit Amount"), which Estimated Deposit Amount
shall be equal to the amount reflected on the latest Schedule of Accounts
delivered pursuant to Section l(a) above; minus;
(ii) An estimated amount equal to four and
seventy-nine one hundredths of a percent (4.79%) of the aggregate principal
amount of the Deposit Accounts, domiciled at the Subject Offices (collectively
the "Estimated Premium Amount"), which Estimated Premium Amount shall be equal
to the amount reflected on the latest Schedule of Accounts, delivered pursuant
to Section 1(a) above provided, however, that for purposes of this calculation,
the principal amount of the Deposit Accounts attributable to the Town & Country
Branch shall be fixed as of the date of the notice sent to customers pursuant to
Section 42 of the Federal Deposit Insurance Act; minus;
(iii) An amount estimated to be equal to the
aggregate principal amount of and accrued interest on the Loans as of the
Closing Date (the "Estimated Loan Amount"), which estimated Loan Amount shall be
equal to the amount reflected on the latest Schedule of Loans delivered pursuant
to Section l(b) above; minus;
(iv) An amount equal to the agreed upon book value
of the Fixed Assets as of the Closing Date; minus;
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(v) An amount equal to the proration amount credited
to Republic under Section 16 hereof; minus;
(vi) An amount equal to the Participation Price;
plus; (vii) An amount equal to the Lease Adjustment.
(b) Post Closing Adjustment. (i) within seven (7) days after
the Closing Date, Republic shall provide Pointe with a final Schedule of Deposit
Accounts and a final Schedule of Loans, both certified by the Chief Financial
Officer of Republic to the effect that each such Schedule is true and accurate
as of the Closing Date. If such Schedules reflect Deposit Account amounts and
Loan amounts which are different from the amounts reflected on the Schedules
delivered at the Closing, then the Payment Amount shall be adjusted to
accurately reflect the actual Deposit Account and Loan Amounts as of the Closing
Date (the "Adjusted Payment Amount").
(ii) If the Payment Amount shall have been greater
than the Adjusted Payment Amount, Pointe shall refund to Republic the difference
between such amounts and if the Payment Amount shall have been less than the
Adjusted Payment Amount, Republic shall pay to Pointe the difference between
such amounts, in each case, in immediately available funds together with
interest thereon for the number of days from and including the Closing Date but
excluding such settlement date (the "Interest Period") at the rate per annum
equal to the average during the Interest Period of the average of the high and
the low bid rates for federal funds on each business day during the Interest
Period, as such bid rates are published in the Eastern Edition of the Wall
Street Journal, computed on the basis of a 365-day year.
6. Reporting of Allocation. The consideration paid pursuant to this
Agreement shall be allocated among the Assets (including the Covenant Not to
Compete and any other intangible assets) and cash, if any, paid to Pointe on the
Closing Date in accordance with the rules under Section 1060 of the Internal
Revenue Code of 1986, as amended (the "Code"), and the Treasury
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Regulations promulgated thereunder. For Federal income tax purposes, Pointe and
Republic shall report the transactions contemplated by this Agreement in a
manner consistent with the allocation of consideration specified in a final
settlement statement agreed to by Pointe and Republic pursuant to this Section
6, which allocation shall be mutually agreed to by the parties. Pointe and
Republic agree to report in accordance with this allocation (including any
modifications thereto reflecting any post-closing adjustments determined
pursuant to the procedures described in this Section 6) in any relevant tax
returns or similar filings (including any forms or reports required to be filed
pursuant to Section 1060 of the Code or the Treasury Regulations promulgated
thereunder ("1060 Forms")), and to file such 1060 Forms in the manner required
by applicable law. Unless required by law, neither Pointe nor Republic shall at
any time file any return or take other action which is inconsistent with such
allocation. In the event any party hereto receives notice of an Internal Revenue
Service audit in respect of the allocation described above, such party shall,
within a reasonable time after receiving such notice, notify the other party in
writing as to the date and subject of such audit.
7. Transfer of Records: Notice to Customers: Post-Closing
Reconciliation: Checking and NOW Account Transactions.
(a) On or prior to the Closing Date, Republic shall assign,
transfer, and deliver to Pointe the signature cards and account records between
Republic and owners of the Deposit Accounts.
(b) Within such period of the Closing as shall be required
pursuant to applicable law and regulations, Pointe shall mail a notice in a form
acceptable to Republic and Pointe to each depositor having a Deposit Account.
Republic shall provide to Pointe a mailing list and mailing labels and such
other assistance as Pointe may reasonably request in order to facilitate such
mailing.
(c) Republic and Pointe shall make arrangements to provide for
the daily
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settlement with immediately available funds by Pointe of checks, drafts,
withdrawal orders, returns and other items presented to and paid by Republic,
following advice and instruction from Pointe, within 90 calendar days after the
Closing Date and drawn on or chargeable to accounts that have been assumed by
Pointe, and items deposited with Pointe relating to accounts which have not been
assumed by Pointe, provided, however, that Republic shall be held harmless and
indemnified by Pointe for acting in accordance with such arrangements.
(d) Pointe agrees, at its cost and expense, (1) to assign new
account numbers to depositors of assumed Deposit Accounts, (2) to notify such
depositors, on or before the Closing Date in a form and on a date mutually
acceptable to Republic and Pointe, of Pointe's assumption of the Deposit
Accounts, (3) to furnish such depositors with checks on the forms of Pointe and
with instructions to utilize Pointe's checks and to destroy unused check, draft
and withdrawal order forms of Republic, (4) to reissue all ATM and debit cards
(with new PIN numbers) associated with the depositors of assumed Deposit
Accounts, and (5) to disable and to notify customers of its disabling of all
credit card overdraft protection. In addition, subsequent to regulatory
approval, Republic will notify its affected customers by letter of the pending
assignment of Republic's Deposit Accounts to Pointe, which notice shall be at
Republic's cost and expense and shall be in a form mutually agreeable to
Republic and Pointe.
(e) Pointe agrees to pay promptly to Republic an amount
equivalent to the amount of any checks, drafts or withdrawal orders credited to
any assumed Deposit Accounts as of the Closing Date that are returned to
Republic after the Closing Date, provided, however, if (I) Pointe cannot recover
from, the accountholder an amount otherwise payable to Republic pursuant to this
Section 6(e), and (ii) Pointe has not permitted withdrawals prior to the
expiration of the period of time such deposits are not available for withdrawal
as previously determined by Republic and communicated to Pointe at the Closing,
then Pointe shall not be obliged to reimburse Republic for such returned item.
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(f) Prior to the Closing Date, Republic will provide a list
of, and , at its expense, will notify all Automated Clearing House ("ACH")
originators of the transfers and assumptions made pursuant to the Agreement. For
a period of 90 calendar days beginning on the Closing Date, Republic will honor
all ACH items related to accounts assumed under this Agreement which are
mistakenly routed or presented to Republic. Republic will make no charge to
Pointe for honoring such items, and will electronically transmit such ACH data
to Pointe. If Pointe cannot receive an electronic transmission, Republic will
make available to Pointe at Republic's operations center receiving items from
the Automated Clearing House tapes containing such ACH data. Items mistakenly
routed or presented after the 90-day period will be returned to the presenting
party. Republic and Pointe shall make arrangements to provide for the daily
settlement with immediately available funds by Pointe of any ACH items honored
by Republic, and Republic shall be held harmless and indemnified by Pointe for
acting in accordance with this arrangement to accept ACH items.
8. Data Processing. Pointe, with the cooperation of Republic,
shall complete the conversion to its own system of electronic data processing
and accounting records associated with the Subject Offices by the Closing Date.
9. Conduct of Business Prior to Closing.
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Between the date hereof and the Closing Date:
(a) Republic shall not (i) engage in any transaction related
to the Subject Offices except in the ordinary course of business, including loan
underwriting standards in effect as of the date of this Agreement, (ii) enter
into, amend, terminate or renew any material contract with respect to the
subject office except as may be required with respect to the assignment of the
Leases, and agreed to by Pointe, pursuant to Section 2(a) hereof, (iii) change
any of its Deposit Account practices at the Subject Offices (iv) pay a different
rate of interest than that paid at any other Republic branch office in Broward
and Palm Beach Counties; (v) pay any bonus or grant
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any increase in the compensation or benefits to any of the employees of the
Subject Offices except as provided for in the compensation plan applicable to
all Republic employees in effect as of the Date of this Agreement; (vi) enter
into any employment contracts with any employee of the Subject Offices without
the consent of Pointe; or (vii) adopt any new employee benefit plan or make any
material change in any existing employee benefit plan other than any such change
that is required by law.
(b) Republic shall pay and discharge all taxes, assessments,
rents, utilities and other charges levied against the Subject Offices and the
Fixed Assets. Republic shall maintain insurance with respect to the Subject
Offices and the Fixed Assets against losses, liabilities and risks, at their
current rates, types and amounts. Pointe shall be responsible for the security
of and insurance on all persons and property located in the Subject Offices from
and after the Closing Date;
(c) Republic shall keep, or cause to be kept, in their current
state of good repair, normal wear and tear excepted, the Subject Offices and the
heating, ventilating, electrical, gas, drainage, plumbing and other systems
located therein or used in connection therewith;
(d) Upon reasonable notice, Republic shall permit on any day
up to three employees of Pointe to observe the day-to-day operations of Republic
at the Subject Offices during the regular business hours of such office.
(e) Republic shall take all steps necessary under applicable
law, regulation and regulatory pronouncement to cause the closure of the Town &
Country Branch and the transfer of the Deposits and Loans associated with such
branch to the South Miami Branch, such closure and transfer to be effective on
or before the close of business of the Closing Date.
10. Representations and Warranties of Republic. In order to
induce Pointe to enter into this Agreement, Republic hereby represents, warrants
and agrees as follows:
(a) To the best knowledge of Republic, each Loan and Other
Loan is a legal,
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valid and binding obligation of the borrower thereunder and such Loan is
adequately secured by the Deposit Accounts purported to secure such Loan and
Republic is the sole owner of each Loan and Other Loan, free and clear of all
liens, claims, covenants, conditions, restrictions, security interests, charges,
equities and encumbrances of every kind or nature (collectively,
"Encumbrances"), and has the exclusive right to transfer each Loan to Pointe.
None of such Loans or Other Loans is materially in default. To the extent that
the Loans and Other Loans were originated or serviced by Republic, each of such
Loans and Other Loans has been originated and serviced in compliance with all
applicable laws. To the extent that the Loans and Other Loans were originated or
serviced by an unaffiliated third party, Republic has no knowledge that such
origination or servicing was not conducted in compliance with all applicable
laws.
(b) True and correct copies of the Leases as in effect on the
date hereof, including all attachments, amendments and addenda thereto have been
delivered by Republic to Pointe. The Leases constitute valid and binding
leasehold interests of Republic in all of the leased premises, free and clear of
all Encumbrances except for easements, covenants, conditions and restrictions of
record to which such property is commonly subject and which do not, individually
or in the aggregate, prohibit or materially interfere with the use of such
property as a commercial banking office. Republic has the right and power to
assign the Leases as contemplated hereby, (subject to the consent of the
Landlords). Republic has good marketable title to the Fixed Assets, free and
clear of any Encumbrances. Republic has not undertaken any construction or
improvements on the Subject Offices or Fixed Assets which could give rise to any
mechanics or other liens which Pointe would be required to discharge.
(c) With respect to the business of Republic related to the
Subject Offices including the Deposit Accounts and Loans, and with respect to
the Other Loans, Republic is in compliance in all material respects with the
provisions of all applicable federal, state and local statutes relating to such
assets and liabilities.
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(d) Republic has been duly organized and is validly existing
as a commercial bank in good standing under the laws of the State of Florida and
has all requisite corporate power and corporate authority and all necessary
authorizations, approvals and orders of and from all governmental officials and
bodies, to conduct its business as presently conducted, to enter into this
Agreement and to carry out the provisions and conditions hereof.
(e) Republic is not subject to any charter, bylaw, indenture,
mortgage, lien, lease, agreement, instrument, order, judgment, decree or other
restriction which would prevent or impair the consummation of the transactions
contemplated herein and this Agreement is valid and binding as to Republic.
(f) This Agreement has been, and on the Closing Date all other
documents to be delivered by Republic pursuant to this Agreement shall have
been, duly authorized, executed and delivered by Republic.
(g) There are no actions, proceedings or investigations
pending or, to the best knowledge of Republic, threatened against or affecting
Republic or any of its subsidiaries (or any basis therefor known to Republic)
which, if decided adversely to Republic, would affect its ability to carry out
the transactions contemplated in this Agreement.
(h) No consent, waiver, approval or other authorization of, or
registration, declaration or filing with, any court, governmental agency or
commission is required for the valid execution and delivery by Republic of this
Agreement, or for the validity or enforceability of this Agreement against
Republic or for the payment of any amounts by Republic hereunder, other than
those which have been or will be obtained or accomplished on or prior to the
Closing Date, as contemplated by this Agreement.
(i) Neither this Agreement nor any statement or other document
furnished or to be furnished to Pointe by or on behalf of Republic in connection
with the transactions contemplated herein contains or will contain any untrue
statement of a material fact or omits or
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will omit to state any material fact necessary in order to make the statements
contained herein or therein not misleading.
(j) No default exists in the due performance and observance by
Republic or the Landlords of any term, covenant or condition of the Leases and
no action has been instituted or to the best knowledge of Republic, threatened
wherein either party would or might be alleged to be in default under the
Leases.
(k) No default exists in the due performance and observance by
Republic or, to the best knowledge of Republic, the other party to any Contract
of any term, covenant or condition of any such Contract and no action has been
instituted or, to the best knowledge of Republic, threatened wherein either
party would or might be alleged to be in default under such Contract.
(l) The Contracts listed on Schedule l(d) attached hereto are
all of the contracts relating to the Subject Offices.
(m) Republic maintains insurance with respect to the Subject
Offices and the Fixed Assets against losses, liabilities and risks, in types and
amounts customary for financial institutions and, in the case of the Fixed
Assets, in amounts not less than the book value thereof.
11. Representations and Warranties of Pointe. In order to induce
Republic to enter into this Agreement, Pointe hereby represents, warrants and
agrees as follows:
(a) Pointe has been duly organized, is validly existing as a
commercial bank in good standing under the laws of the State of Florida and has
all requisite corporate power and corporate authority and all necessary
corporate authorizations, approvals and orders from all governmental officials
and bodies to enter into this Agreement and to carry out the provisions and
conditions hereof.
(b) Pointe is not subject to any charter, bylaw, indenture,
mortgage, lien, lease, agreement, instrument, order, judgment, decree or other
restriction which would prevent the
16
consummation of the transactions contemplated herein and this Agreement is valid
and binding as to Pointe.
(c) This Agreement has been, and on the Closing Date all
other documents to be delivered by Pointe pursuant to this Agreement shall have
been duly authorized, executed and delivered by Pointe.
(d) There are no actions, proceedings or investigations
pending or, to the best knowledge of Pointe, threatened against or affecting
Pointe or any of its subsidiaries (or any basis therefor known to Pointe) which,
if decided adversely to Pointe, would affect its ability to carry out the
transactions contemplated in this Agreement.
(e) No consent, waiver, approval or other authorization of,
or registration, declaration or filing with, any court, governmental agency or
commission is required for the valid execution and delivery by Pointe of this
Agreement, or for the validity or enforceability of this Agreement against
Pointe or for the payment of any amounts by Pointe hereunder, other than those
which have been or will be obtained or accomplished on or prior to the Closing
Date, as contemplated by this Agreement.
(f) Neither this Agreement nor any statement or other
document furnished or to be furnished to Republic by or on behalf of Pointe in
connection with the transactions contemplated herein contains or will contain
any untrue statement of a material fact or omits or will omit to state any
material fact necessary in order to make the statements contained herein or
therein not misleading.
(g) Pointe has employed no broker, finder or other agent or
agreed to pay any commission to any such person in connection with this
Agreement or any of the transactions contemplated hereby.
12. Survival of Representations and Warranties; Indemnification.
-----------------------------------------------------------
(a) The respective representations and warranties of Pointe
and Republic herein
17
shall survive the Closing Date.
(b) Republic shall indemnify and hold Pointe harmless against
any claims or damages, including reasonable attorneys' fees and expenses, to the
extent that the same are ultimately held in a final judgment (with respect to
which all appeals have expired or been denied) to have resulted from (i) the
breach by Republic of any Deposit Account, Loan, Contract, or Other Loan
assigned to or assumed by Pointe hereunder or pursuant to the Participations or
from the conduct of Republic or its agents in connection with the operation of
the Subject Office on or prior to the Closing Date, (ii) from any
misrepresentation or breach of warranty or failure to perform any agreement by
Republic hereunder, (iii) as the result of any undisclosed encumbrance,
liability, claim or commitment, contingent or otherwise, adversely affecting any
of the Subject Offices, the Deposit Accounts, the Loans, the Contracts, the
Lease, the Fixed Assets and the Participations, including without limitation,
any tax or other claims, liens, or liabilities, actions, claims or proceedings
arising out of events prior to the Closing Date, or (iv) from any other finally
adjudicated liability of Republic with respect to the Subject Offices not
expressly assumed by Pointe under or pursuant this Agreement.
(c) Pointe shall indemnify and hold Republic harmless against
any claims or damages, including reasonable attorneys', fees and expenses, to
the extent that the same are ultimately held in a final judgment (with respect
to which all appeals have expired or been denied) to have resulted from (i) the
breach by Pointe of any Deposit Account, Loan or Contract assigned to or assumed
by Pointe hereunder or from the conduct of Pointe or its agents in connection
with the operation of the Subject Offices subsequent to the Closing Date, (ii)
from any misrepresentation or breach of warranty or failure to perform any
agreement by Pointe hereunder, including but not limited to the failure to
perform in accordance with the terms of all of the obligations assumed
hereunder, or (iii) any actions taken by Republic in connection with the
processing of items pursuant to Section 7(c) hereof.
18
(d) In the event that Republic or Pointe learns of any claim
which may give rise to a claim for indemnification under Section 12(b) or (c),
the party learning of such claim ("Indemnified Party"), as a precondition to
making a claim for indemnification thereunder, shall give prompt notice of the
commencement thereof in writing to the other ("Indemnifying Party"). In case any
such claim is brought against the Indemnified Party and the Indemnified Party
notifies the Indemnifying Party of the commencement thereof, the Indemnifying
Party will be entitled to participate therein and to the extent that it may wish
to assume control of the defense thereof, with counsel reasonably satisfactory
to the Indemnified Party, and after notice from the Indemnifying Party to the
Indemnified Party of its election so to assume control of the defense of such
claims with such counsel, the Indemnifying Party will not be liable to the
Indemnified Party for any legal or other expenses subsequently incurred by the
Indemnified Party in connection with the defense thereof other than reasonable
costs of investigation.
(e) Republic shall indemnify Pointe against any and all
information reporting, backup withholding, customer tax payer identification
number certification, nonresident alien status certification or "due diligence"
penalties assessed against Pointe as a result of Republic's failure to comply
with the applicable Internal Revenue Service regulations in connection with the
Deposit Accounts. This indemnification shall survive the Closing Date without
limitation.
13. Conditions to the Closing.
-------------------------
(a) The obligation of the parties hereto are subject to the
satisfaction or waiver of the respective conditions to the performance of their
respective obligations under this Agreement and the receipt of all necessary
government or other regulatory approvals and the expiration of any applicable
waiting periods required before the transactions contemplated hereby can be
validly effectuated.
(b) The obligations of Pointe hereunder are subject to the
further conditions that, on or prior to the Closing Date:
19
(i) Republic shall have supplied Pointe with such
information and records relating to the Deposit Accounts, the Loans, the
Contracts, the Leases, the Fixed Assets and the Other Loans at such times as
Pointe may reasonably request;
(ii) All corporate and other proceedings in
connection with the transactions contemplated herein and all documents incident
thereto shall be reasonably satisfactory in form and substance to Pointe and its
counsel, and Pointe shall have received such other documents and instruments of
transfer incident to the transaction as Pointe or such counsel shall reasonably
request in form and substance reasonably acceptable to Pointe and such counsel;
(iii) The representations and warranties made by
Republic herein shall continue to be true and correct on and as of the Closing
Date as if they had been made on the Closing Date and Republic shall have
performed and substantially complied with all agreements and conditions in this
Agreement required to be performed or complied with by it on or before the
Closing Date;
(iv) To the extent required by applicable law and
regulations, the DBF, the FRB-A and any other governmental agencies whose
approval is necessary shall have approved the acquisition by Pointe of the
Deposit Accounts, the Loans, the Contracts and the Subject Offices, all as
contemplated by this Agreement, without the imposition of any conditions to
which Pointe reasonably objects;
(v) No action or proceeding shall have been
instituted or, to the best knowledge of Republic, threatened, on or before the
Closing Date pertaining to the transactions contemplated hereby the result of
which could be materially adverse to the operation by Pointe of the Subject
Offices;
(vi) Between the date hereof and the Closing Date,
there shall have been no material damage to or destruction or condemnation of
the Subject Offices, the improvements, furniture, fixtures, equipment or other
assets in or on the Subject Offices or of any other property
20
subject to this Agreement; provided, however, that Pointe may elect to purchase
all of the property subject to this Agreement in the event of such damage,
destruction or condemnation at the price agreed upon pursuant to Section 5
hereof, such purchase price to be reduced (to the extent such damage or
destruction is not fully covered by insurance, the proceeds of which are
assigned and paid to Pointe) in the same proportion as the reduction in market
value of such property attributable to such damage, destruction or condemnation.
(vii) Effective as of the Closing Date, the Town &
Country Branch shall be closed and the Deposits and Loans associated with the
Town & Country Branch shall have been transferred to the South Miami Branch.
(c) The obligations of Republic hereunder are subject to the
conditions that on or prior to the Closing Date:
(i) All corporate and other proceedings in
connection with the transactions contemplated herein and all documents incident
thereto shall be reasonably satisfactory in form and substance to Republic and
its counsel, and Republic shall have received such other documents incident to
the transaction as Republic or such counsel shall reasonably request;
(ii) The representations and warranties of Pointe
hereunder shall continue to be true and correct on and as of the Closing Date as
if they had been made on the Closing Date and Pointe shall have substantially
complied with all agreements and conditions in this Agreement required to be
performed or complied with by it on or before the Closing Date;
(iii) To the extent required by applicable law and
regulations, the DBF, the FRB-A, and any other governmental agency whose
approval is necessary, shall have approved the sale and transfer by Republic of
the Deposit Accounts, the Loans, the Contracts and the Subject Offices, all as
contemplated by this Agreement, without the imposition of any conditions to
which Republic reasonably objects;
21
(iv) No action or proceeding shall have been
instituted or, to the best knowledge of Pointe threatened, on or before the
Closing Date pertaining to the transactions contemplated hereby, the results of
which could be materially adverse to the operation by Pointe of the Subject
Offices;
(v) Pointe shall have converted the electronic data
processing and accounting records associated with the Subject Offices to its own
system in accordance with the provisions of Section 6 of this Agreement.
14. Requirements of Regulatory Authorities.
--------------------------------------
(a) Republic shall, as soon as is practicable, notify the
proper regulatory authorities of its intent to terminate operation of the
Subject Offices and to consummate the transaction hereunder and thereafter shall
(i) comply with the normal and usual requirements imposed by such authorities
applicable to effect the sale hereunder, and (ii) use good faith and due
diligence to obtain any required permission of such regulatory authorities to
cease operations of the Subject Offices.
(b) Pointe and Republic shall prepare and file with reasonable
assistance from Republic, within 30 days of the date of this Agreement, an
application, as required by law, to the DBF, the FRB-A and any other required
regulatory authorities for approval to effect the transactions contemplated
hereby, and the parties hereto shall, if required, publish appropriate notice of
the transactions contemplated hereby.
15. Covenant Not To Compete.
-----------------------
(a) For a period of 12 months from and after the Closing Date,
Republic shall not, within the "Restricted Area" described below, open or
maintain any branch or other office or purchase any branches or other offices
(except in the case of a merger with or acquisition of substantially all of the
assets and all of the liabilities of another financial institution) not in
existence on the date hereof.
22
(b) For the purposes of this Agreement, the Restricted Area
shall be defined generally as that geographic area within Miami-Dade County,
Florida.
16. Subject Office Employees.
------------------------
Pointe shall offer employment to all employees of the Subject
Offices. All employees employed by Pointe shall receive compensation at the
current level paid by Republic. Pointe shall, for purposes of determining
eligibility for Pointe retirement and benefit plans, consider the employment
date with Republic to be deemed to be the initial date of the employee's
employment with Pointe. Republic shall be free to continue to employ any
employee who declines an offer of employment from Pointe and who Republic wishes
to continue to employ at another Republic location. Nothing herein shall be
construed to give rise to any third party rights on behalf of any person.
17. Additional Covenants; Prorations.
--------------------------------
(a) Effective as of the Closing Date, the following taxes and
other items shall be appropriately prorated and adjusted:
(i) All real property taxes, personal property
taxes, and all other public or governmental charges against the Subject Offices
that are or may be payable on a periodic basis, all electric, sewer, water, gas
or other utility payments and deposits in connection with utility service for
the Subject Offices, FDIC insurance premiums and all deposits on any leases or
contracts assumed by Pointe.
(ii) All required payments or prepayments under the
Leases and other payments associated with the Subject Offices.
(b) Republic and Pointe will execute and deliver such
documents as are reasonably necessary to effectuate the transactions
contemplated hereby and will use their best efforts (i) to obtain, and to
cooperate in obtaining, all approvals, consents and permissions necessary to the
consummation of the transactions contemplated by this Agreement; and (ii) to
23
cause the satisfaction of all other conditions to their obligations hereunder.
18. Termination.
-----------
This Agreement shall terminate and be of no further force and
effect, except as to any liability for breach of any duty or obligation arising
prior to the date of termination, upon the occurrence of the following:
(a) The expiration of 30 days after the DBF, the FRB-A or any
other governmental agency has denied or finally refused to grant the approvals
or consents required to be obtained pursuant to this Agreement, unless within
such 30-day period Pointe and Republic agree to submit or resubmit an
application to or appeal the decision of the regulatory authority which denied
or finally refused to grant approval thereof; or
(b) The expiration of 30 days from the date that either party
has properly given notice to the other party of the notifying party's intention
to terminate this Agreement as a consequence of such other party's material
breach or misrepresentation of any material condition, warranty, representation
or covenant herein; provided, however, that no such termination shall take
effect if within said 30-day period the party so notified shall have fully and
completely corrected the grounds for termination as specified in the
aforementioned notice; or
(c) The failure of the transactions provided for herein to be
consummated by June 30, 2001; or
(d) The execution of a written termination agreement by both
of the parties.
19. Expenses.
--------
Except as otherwise expressly provided for herein, each party
hereto shall pay its own expenses incurred in fulfilling its obligations
hereunder.
20. Confidentiality. Republic and Pointe shall each maintain the
confidentiality of all written, electronic (including computer software) or
verbal information obtained from the other party hereto and not use such
information for any purpose except (a) in furtherance of the
24
transactions contemplated hereby, (b) to the extent such information may have
been previously known by the party obligated hereby to keep such information
confidential, been publicly disclosed by the party seeking to keep its
information confidential, become public knowledge (otherwise than by any act of
omission to act by the party obligated hereby to keep such information
confidential) or been independently developed by such party or by third persons
without access to such information, or (c) to a party's counsel, accountants or
other appropriate representatives in connection with the transactions
contemplated hereby, or, as and to the extent required by law, to governmental
authorities. If this Agreement is not consummated, Republic and Pointe shall
return (as soon as is practicable after written request therefor) all written
information and electronic information (including computer software) supplied by
the other party hereto in connection with the transactions contemplated hereby
which shall have been identified as confidential, to such party, without
retaining copies thereof.
21. Notices.
-------
Unless otherwise specified herein, all notices, requests,
demands or other communications to or from the parties hereto shall be deemed to
have been duly given and made (a) in the case of a letter sent other than by
mail, when the letter is delivered to the party to whom it is addressed, (b) in
the case of a telegram, when the telegram is sent, (c) in the case of a letter
sent by mail, three (3) days from the day on which the letter is deposited,
postage prepaid, in a United States post office depository, registered or
certified mail, return receipt requested, and addressed as follows:
If to Republic: Republic Bank
Attn.: Xxxxxxx X. Xxxxxxx
000 Xxxxxx Xxxxxx XX, Xxxxx 000
Xx. Xxxxxxxxxx, XX 00000
Fax: (000) 000-0000
with a copy to: Republic Bank
Attn: Xxxxxxxxxxx X. Xxxxxx,
General Counsel
000 Xxxxxx Xxxxxx XX, Xxxxx 000
Xx. Xxxxxxxxxx, XX 00000
25
Fax Number: (000) 000-0000
If to Pointe: Pointe Bank
Attn: Xxxxxxx X. Xxxxxxxx
00000 Xxxxxxxxx Xxxx
Xxxx Xxxxx, Xxxxxxx 00000
with a copy to: Stroock & Stroock & Xxxxx LLP
3300 First Union Financial Center
000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Xxxxxx, Esq.
or, as to each party, at such other address as shall be designated by such party
in a written notice to the other party complying as to delivery with the terms
of this Section.
Notice of change of address shall be effective only upon receipt.
22. Entire Agreement, Modifications, Waivers, Headings.
--------------------------------------------------
This Agreement constitutes the entire agreement between the
parties pertaining to the subject matter hereof and supersedes all prior and
contemporaneous agreements and understandings of the parties. No modification or
termination of this Agreement shall be valid unless executed in writing by both
parties hereto, and no waiver of any provision of, breach of or default under
this Agreement shall be considered binding unless executed in writing by the
party granting such waiver. No waiver of any provision of this Agreement shall
be deemed or shall constitute a waiver of any other provision hereof or any
subsequent breach or default (whether or not similar) nor shall any such waiver
constitute a continuing waiver. The Recitations set forth at the outset of this
Agreement are true and correct and are of the same force and effect as if they
were a part of the body of this Agreement. Section, paragraph and subparagraph
headings are not to be considered part of this Agreement, are for the
convenience of reference only and are not intended to be full or accurate
descriptions of the contents of any Sections, paragraphs or subparagraphs.
23. Successors and Assigns.
----------------------
All of the terms and provisions of this Agreement shall be
binding upon and inure
26
to the benefit of the parties hereto and their respective transferees,
successors and assigns, but this Agreement may not be assigned by either party
without the written consent of the other.
24. Counterparts.
------------
This Agreement may be executed in one or more counterparts,
all of which taken together shall constitute one instrument.
25. Governing Law.
-------------
This Agreement shall be construed and enforced in accordance
with the laws of the State of Florida to the extent that federal law does not
control.
26. Public Announcements.
--------------------
Neither Pointe nor Republic shall make any public announcement
regarding the transactions provided for herein without the approval of the other
party; provided that, if either party receives a legal opinion from its counsel
that a public announcement of such transactions is required under applicable
law, such party may make such public announcement after giving notice to the
other party. Notwithstanding anything herein to the contrary, the initial public
announcement of the transactions contemplated by this Agreement shall be made
Jointly by Republic and Pointe and shall include language agreed to between
Republic and Pointe.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
REPUBLIC BANK POINTE BANK
By:/s/ Xxxxxxx X. Xxxxx By:/s/ R. Xxxx Xxxxxx, Jr.
--------------------------------------------- ------------------------
Xxxxxxx X. Xxxxx R. Xxxx Xxxxxx, Jr.
President and Chief Executive Officer President and Chief
Executive Officer
27
AMENDMENT NO. 1 TO
BRANCH PURCHASE AND
DEPOSIT ASSUMPTION AGREEMENT
THIS AMENDMENT NO. 1 (the "Amendment"), dated as of January 17, 2001 to
the Branch Purchase and Deposit Assumption Agreement ("Agreement"), dated as of
January 4, 2001, by and between Pointe Bank and Republic Bank.
1. Terms defined in the Agreement shall have the same meaning
when used herein unless the context otherwise requires.
2. To correct clerical errors, the parties agree to amend the
Agreement as follows:
(a) Page 1, Section B.:
Change address of the Air Park branch from 00 X.X.
00xx Xxxxxx to 000 X.X. 00xx Xxxxxx
(b) Page 10, Section 5(a)(v):
Change the reference to "Section 16" to read
"Section 17"
(c) Page 27, Section 15(a):
Delete the last seven words of paragraph to wit:
"not in existence on the date hereof."
3. This Amendment shall be governed by, and construed in
accordance with, the internal laws of the State of Florida without giving effect
to principles of conflicts of law.
4. Except as amended hereby, the Agreement shall remain in full
force and effect.
5. This Amendment may be executed in counterparts, each of which
shall be deemed an original, but all of which shall constitute one document.
1
IN WITNESS WHEREOF, this Amendment is executed effective for all
purposes as of the date first set forth above.
POINTE BANK
By:/s/ Xxxxxxx X. Xxxxxxxx
------------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President and Chief Financial
Officer
REPUBLIC BANK
By:/s/ Xxxxxxx X. Xxxxxxx
------------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: First Executive Vice President
and Chief Financial Officer
2
