FORM OF CD BROKERAGE AGREEMENT
Exhibit 1.20
FORM OF CD BROKERAGE AGREEMENT
BROKERAGE AGREEMENT (“the Agreement”) dated
, 20___, between Xxxxxxx
Xxxxx Bank USA, an industrial bank organized under the laws of the State of Utah (the “Depository”)
and [Name of institution], a organized under the laws of
(“Broker”).
WHEREAS, the Depository desires to offer to Broker customers from time to time its
certificates of deposit and/or callable certificates of deposit with terms and conditions as may be
agreed upon by the parties (hereinafter called collectively the “CDs”); [and]
WHEREAS, Broker is willing to act as a broker in effecting sales of CDs offered by the
Depository from time to time to Broker’s customers (each, a “Purchaser”)[; and]
[WHEREAS, Broker may enter into selling group agreements (each, a “Selling Group Agreement”)
with one or more financial institutions (each, a “Selling Group Member” or “Member” and,
collectively, the “Selling Group”) to participate with Broker in effecting sales of such offered
CDs, by selling such CDs, in the case of each Selling Group member, to customers of such Member
(each such customer, also a “Purchaser”)].
NOW THEREFORE, in consideration of the promises and the mutual covenants herein contained, the
Depository and Broker agree as follows:
1. Appointment of Broker. [(a)] The Depository hereby appoints Broker on a
non-exclusive basis as its broker for the purpose of selling CDs as hereinabove set forth. Broker
will act as agent for its customers [and the customers of the Selling Group] in purchasing the CDs;
provided that Broker may, at its option, act as principal in effecting sales of CDs hereunder, in
which case all provisions hereof will remain in effect. Broker [and the Selling Group] will not
offer CDs in such market areas, if any, as the Depository may from time to time designate in
writing to Broker. Broker agrees that it will not offer, sell or deliver, directly or indirectly,
any of the CDs in or from any jurisdiction outside the United States or its territories except
under circumstances that will result in compliance with the applicable laws and regulations thereof
and that will not impose any obligations on the Depository except as contained in this Agreement.
[The Selling Group will not include such parties as the Depository may from time to time designate
in writing to Broker.]
[(b) Broker represents, warrants and covenants to the Depository (i) that each Selling Group
Member has signed or will sign a Selling Group Agreement before offering the CDs for sale and
Broker will not offer or sell CDs through any party other than a Selling Group Member that has
signed a Selling Group Agreement; (ii) that each Selling Group Agreement (including any material
amendment thereto) shall be in a form approved by the Depository before it is executed by the
relevant Member, Broker will provide the Depository with a signed copy of each Selling Group
Agreement (including any material amendment thereto) promptly after it is signed by Broker and the
relevant Member and Broker will not waive compliance by any Member with its Selling Group
Agreement in any material respect without the prior written approval of the Depository; and (iii)
Broker will forward to the Selling Group any information provided to it by the Depository for
distribution to Purchasers or prospective Purchasers and direct the Selling Group to forward such
information to their respective customers to whom they offer CDs for sale.]
2. Terms of CDs. Each CD shall be issued by the Depository on such terms and
conditions as are indicated in a negotiable master certificate (the “Master Certificate”) in the
form agreed upon by the Depository and Broker prior to the offering of the CD.
3. Procedures for Effecting Sales of CDs.
(a) At the date hereof, the Depository will submit to Broker (i) one executed copy of this
Agreement, (ii) a certificate listing the Depository’s employees authorized to enter into
transactions under this Agreement (the “Incumbency Certificate”), and (iii) the Patriot Act
questionnaire.
(b) The Depository may from time to time advise Broker that the Depository is willing to
effect an offering of CDs on certain terms and conditions, including the days on which the CDs will
be offered (the “Offering Period”). Prior to any offering of CDs, the Depository and Broker will
establish the amount, term and effective interest rate on the CDs proposed to be offered by the
Depository on the trade date (“Trade Date”) for settlement on a date agreed upon by the Depository
and Broker (the “Settlement Date”); provided that Broker shall have the right to refuse to purchase
and pay for any CD on the terms and conditions originally agreed upon by the Depository and Broker,
if (i) there has been, since Trade Date, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the Depository and its
affiliates considered as one enterprise, whether or not arising in the ordinary course of business,
or (ii) there shall have occurred since Trade Date, any outbreak or escalation of hostilities
involving the United States or the declaration by the United States of a national emergency or war
or the occurrence of any other calamity or crisis or any change in financial, political or economic
conditions in the United States or elsewhere, if the effect of any such event specified in this
clause (ii) in the judgment of Broker makes it impracticable or inadvisable to proceed with the
solicitation of offers to purchase the CD or the purchase of the CD, or (iii) since Trade Date, a
suspension or material limitation in trading in securities generally on the New York Stock Exchange
or a suspension or material limitation in trading in The Xxxxxxx Sachs Group, Inc. securities on
the New York Stock Exchange, or (iv) since Trade Date a general moratorium on commercial banking
activities shall have been declared by either federal or New York State authorities or a material
disruption in commercial banking or securities settlement or clearance services in the United
States shall have occurred. Unless the parties agree to confirm the terms and conditions by other
means, Broker will
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confirm the terms and conditions of the offering by delivering to the Depository a term sheet.
(c) Broker will advise the Depository on or before [1:00 p.m.] New York time, at least two
Business Days (as defined below) prior to any Settlement Date, or such other date preceding the
Settlement Date as shall be agreed upon by the parties, of the aggregate principal amount of CDs
sold during the preceding week and of the number of CDs to be issued by the Depository on the
Settlement Date and the aggregate purchase price for the CDs sold on such Settlement Date.
(d) Broker will effect transfer to the Depository of the aggregate purchase price for the CDs
sold, on or before [3:00 p.m.], New York time, on the Settlement Date, by remitting to the
Depository’s pre-designated bank account, Federal Funds in an amount equal to the aggregate
purchase price of such CDs (less an amount equal to the compensation payable to Broker in respect
of such CDs); provided, however, that such deduction from the proceeds of the sale of the CDs
remitted hereunder shall not affect the aggregate principal amount of such CDs reflected on the
Depository’s records and the Master Certificate. Broker’s obligation to transfer the funds to the
Depository in accordance with this Section 3(d) is conditioned upon the delivery by the Depository
to DTC of the executed Master Certificate in proper form, on or before [12:00 noon], New York time,
on the Settlement Date.
In the event that the funds are not delivered to the Depository by the time indicated in this
Section 3(d), so that the Depository will be unable to invest the funds overnight, Broker will
compensate the Depository for an amount equal to interest calculated on the amount of funds which
should have been so delivered to the Depository, at the “Federal Funds (Effective)” rate of
interest as published by the Board of Governors of the Federal Reserve System in the H.15 (519)
publication entitled “Selected Interest Rates” (or comparable successor publication) for the
applicable day such amount is owed or as mutually agreed by Broker and the Depository in writing.
A payment error shall include the failure of Broker to deliver the aggregate purchase price (less
an amount equal to the applicable compensation) to the Depository pursuant to this Section 3(d) in
time for the Depository to invest the funds on an overnight basis.
(e) Each CD shall be deemed established on the date when the Depository receives payment of
the purchase price therefore from Broker in accordance with clause (d) of this Section 3.
(f) If payment by the Depository of any amount due on a CD hereunder falls on a day which is
not a Business Day, the payment will be made on the Business Day immediately following such day and
will include interest accrued at the applicable stated rate to, but not including, the day on which
the payment was originally due; such payment will not include interest to the Business Day on which
the payment is made. For the purpose of this Agreement, a “Business Day” shall mean a day on which
the Depository and banks in The City of New York are open for business.
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4. Certain Obligations of the Parties.
(a) Except as provided below, the CDs will be held by The Depository Trust Company (“DTC”).
Each Master Certificate and the Depository’s records maintained in respect of each Master
Certificate evidencing CDs will reflect that CDs are registered in the name of CEDE & CO., as
nominee of DTC, as custodian for [Name of institution] and other DTC participants, each acting for
itself and as nominee or custodian for others or registered assigns. The Depository agrees that it
will not amend or make any changes to the form of Master Certificate used to evidence CDs (other
than to insert the terms of a particular issuance), without first obtaining the consent of Broker,
such consent not to be unreasonably withheld.
(b) CDs will be issued in book entry form only and no individual certificates of deposits will
be provided to purchasers. Notwithstanding the above, in the event a CD purchaser terminates the
agency relationship with Broker and does not elect to continue to hold the CD through another DTC
participant, upon the purchaser’s request, Broker will furnish to the Depository the necessary
information for the Depository to establish a direct depository relationship with each Purchaser.
Such depository relationship will be evidenced in the same manner as the Depository evidences its
direct depository relationship with purchasers of Comparable CDs, as that term is defined in
Section 17 herein. Further, the aggregate amount of CDs evidenced by a Master Certificate, issued
on the same terms as the CD now directly held with the Depository, will be adjusted by following
the procedures applicable to early withdrawal of CDs and the issuance of individual certificates of
deposit, set forth in the Master Certificate.
(c) Broker will provide promptly to each Purchaser that purchased a CD on the Settlement Date
a written confirmation of the purchase of the CD complying with Rule 10b-10 promulgated under the
Securities Exchange Act of 1934, as amended (the “Exchange Act”). The confirmation will specify
the amount deposited, the interest rate or the yield to maturity (as applicable) calculated on the
basis of the actual number of days in the term of the CD and a 365-day year, the maturity date and
such other terms of the CD as Broker determines to be material. In addition, unless the Depository
has notified Broker that the CD is not subject to the General
Guarantee Agreement, dated October
21, 2008 (the “Guarantee”), made by the Xxxxxxx Xxxxx Group, Inc., the confirmation shall contain
substantially the following statement: “The sale of the guarantee of this CD (but not this CD) was
made pursuant to a registration statement under the Securities Act of 1933.” Broker will forward
(or cause to be forwarded) to any Purchaser that is its [(or a Selling Group Member’s)] customer a
disclosure statement (the “Disclosure Statement”) substantially in the form of Exhibit A attached
to this Agreement and, if requested by such Purchaser, a copy of the final prospectus relating to
such guarantee in the form most recently filed by The Xxxxxxx Sachs Group, Inc. with the Securities
and Exchange Commission. Broker shall not make any amendment or supplement to the Disclosure
Statement or such prospectus, or provide any other written information to Purchasers, without the
prior written consent of the Depository.
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5. Amounts Due on CDs. Not later than [12:00 noon], New York time, on any interest
payment or maturity date, the Depository shall deposit Federal Funds in a special purpose account
designated by DTC.
6. Representations, Warranties and Covenants of Broker As of the date hereof and as
of each Settlement Date, Broker represents, warrants and covenants to the Depository as follows:
(a) Broker is a
validly existing and in good standing under the laws of
.
(b) Broker is a registered and licensed broker dealer under the Exchange Act and in each
jurisdiction in which it will solicit Purchasers of CDs and is duly authorized to act as the agent
of each Purchaser for which Broker purchases or holds a CD.
(c) Broker has full power to execute, deliver and perform this Agreement.
(d) This Agreement constitutes a legal, valid and binding obligation of Broker enforceable
against Broker in accordance with its terms, except as enforcement may be limited by bankruptcy,
insolvency, liquidation or other similar laws generally affecting the enforcement of creditors’
rights.
(e) Broker will comply with any federal, state and local tax reporting requirements applicable
to the Depository in connection with CDs held by its customers (including such federal income tax
withholding provisions as may be required by the Internal Revenue Service) and will maintain a
separate account for any taxes required to be withheld as required by law with respect to any
Purchasers and will remit any such taxes withheld on a timely basis to the appropriate taxing
authority.
(f) Broker will comply with federal and state securities laws and regulations applicable to
its performance hereunder as seller of CDs (including CDs subject to the Guarantee).
(g) Broker will, in accordance with applicable published requirements of the Federal Deposit
Insurance Corporation (“FDIC”), maintain records of its customers who are purchasers of CDs,
including their names, addresses, tax identification numbers and dollar amounts of CDs owned by
them and of any representative capacity in which any Purchaser may be acting.
(h) Broker has fully complied with all requirements of 12 C.F.R. §337 applicable to deposit
brokers.
(i) Broker will comply with all federal anti-money laundering statutes, rules and regulations
applicable to a broker-dealer registered under the Exchange Act,
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including, but not limited to, the Bank Secrecy Act (31 U.S.C. 5311 et. seq.), its
implementing regulations (31 C.F.R. Part 103), and such federal statutes amended by the Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism
Act of 2001 (P.L. 107-56, October 26, 2001) or as may be amended from time to time (the “USA
PATRIOT Act”). Broker further represents that it will adopt appropriate policies, procedures and
internal controls to be fully compliant with any additional laws, rules or regulations, including
the Bank Secrecy Act, to which it may become subject. It is understood that the Depository will
not check or investigate the procedures of Broker [(or any Selling Group Member)] designed to
prevent the violation of these statutes, rules and regulations.
(j) Broker will comply with the United States regulations imposed by the Treasury Department’s
Office of Foreign Assets Control (“OFAC”) including but not limited to, the International Emergency
Economic Powers Act, 50 U.S.C. §1701 et seq., The Trading with the Enemy Act, 50 U.S.C. App. 1 et
seq., and any Executive Orders or regulations promulgated thereunder, which prohibit, among other
things, the engagement in transactions with, holding the securities of, and the provision of
services to certain embargoed foreign countries and specially designated nationals, specially
designated narcotics traffickers, terrorist sanctions, and other blocked parties.
(k) Broker will comply with the requirements of the “Truth in Savings Act”, 12 USC §4301 et
seq., and any advertisements, as that term is therein defined, in connection with the CDs will
contain the information required by the Act and the regulations promulgated thereunder.
(l) Broker will maintain policies and procedures reasonably designed to (i) make appropriate
disclosure to Purchasers of applicable FDIC insurance limits in connection with the purchase of a
CD pursuant to law or regulation, if and as applicable to a deposit broker and (ii) prohibit the
processing of a single CD purchase in excess of the FDIC insurance limits; provided, however that
Broker will not monitor the CD holdings of a Purchaser and is not responsible for CDs of the
Depository held by a Purchaser in excess of the FDIC insurance limit.
(m) Broker has and will maintain procedures reasonably designed to comply with the
requirements of the National Association of Securities Dealers, New York Stock Exchange and
Financial Industry Regulatory Authority, as applicable, concerning the offer and sale of CDs
(including CDs subject to the Guarantee).
7. Representations, Warranties and Covenants of the Depository. The Depository
represents, warrants and covenants to Broker as follows:
(a) The Depository is an industrial bank duly organized, validly existing and in good standing
under the laws of its organization.
(b) The Depository has full corporate power to execute, deliver and perform this Agreement and
to issue and perform its obligations with respect to the CDs.
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The execution, delivery and performance of this Agreement and the issuance of the CDs and the
performance by the Depository of its obligations in respect thereof has been duly authorized by the
Depository.
(c) This Agreement constitutes a legal, valid and binding obligation of the Depository
enforceable against the Depository in accordance with its terms, except as enforcement may be
limited by bankruptcy, insolvency, liquidation or other similar laws generally affecting the
enforcement of creditors’ rights, including laws relating to the rights of creditors of
institutions the accounts of which are insured by the FDIC or which are subject to regulation by
federal or state banking authorities.
(d) Each CD constitutes a legal, valid and binding obligation of the Depository enforceable
against the Depository in accordance with its terms, except as enforcement may be limited by
bankruptcy, insolvency, liquidation or other similar laws generally affecting the enforcement of
creditors’ rights, including laws relating to the rights of creditors of institutions the accounts
of which are insured by the FDIC or which are subject to regulation by federal or state banking
authorities.
(e) The obligation of the Depository in respect of each CD is entitled to the priority
provided to “depositor liabilities” by Section 11(d)(11) of the Federal Deposit Insurance Act.
(f) Each CD issued as contemplated hereby will be entitled to deposit insurance of the FDIC
subject to the maximum limits on such insurance under 12 U.S.C. §1821 and further subject to Broker
[and the Selling Group] being able to satisfy applicable rules and regulations with respect to the
identities of Purchasers of CDs and the total dollar amount of the CDs and further subject to FDIC
aggregation rules for other accounts held by a Purchaser with the Depository. It is understood and
agreed, however, that the Depository shall have no responsibility for monitoring the total amount
of deposits held by each Purchaser with the Depository and shall have no liability if a Purchaser’s
purchases with the Depository, including the CDs, exceed FDIC insured amounts. The Depository will
notify Broker promptly of any action by the FDIC or the Depository to terminate the Depository’s
insured status.
(g) If the deposit insurance on the outstanding CDs is compromised due to subsequent judicial,
legislative or regulatory action, the Depository will either (i) redeem the CDs, to the extent
permitted by applicable regulations, or (ii) exchange the CDs for like certificates of deposit
directly with the Depository if this action would result in the CDs having continuous deposit
insurance coverage.
(h) No applicable law or regulation of the state in which the Depository’s headquarters is
located or any political subdivision thereof imposes any state or local income or franchise tax
with respect to any CD purchased by a non-resident of the above-referenced state.
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(i) Neither the execution and delivery of the Agreement by the Depository, the consummation by
the Depository of the transactions herein contemplated, the fulfillment by the Depository of, or
compliance by the Depository with, the terms and provisions hereof, nor the issuance and
performance of its obligations under the CDs will conflict with, or result in a breach of any of
the terms, conditions or provisions of any federal law, regulation or rule of any government
instrumentality governing the Depository or of any law, rule or regulation governing the acceptance
of deposits of the state in which the Depository’s headquarters is located, or the charter or
bylaws of the Depository or of any agreement to which the Depository is now a party or by which it
may be bound.
(j) At each Settlement Date, the Depository will have obtained and/or made any consent,
approval, waiver or other authorization of or by, or filing or registration with, any court,
administrative or regulatory agency or other governmental authority which is required to be
obtained by the Depository in connection with the execution, delivery or performance by the
Depository, or the consummation by the Depository, of the transactions contemplated by this
Agreement including, without limitation, the issuance, offer and sale of the CDs.
(k) At each Settlement Date, the Depository will be either (i) “well capitalized” or (ii)
“adequately capitalized,” as such terms are defined in 12 C.F.R. §337, or in any amendments or
revisions to such regulations. If the Depository is “adequately capitalized” pursuant to
(ii) above, prior to issuing CDs as contemplated hereby, the Depository will have obtained a waiver
from the FDIC waiving the prohibition on accepting brokered deposits, provided, however, that the
Depository will not be deemed to be in breach of this representation if (1) it has been granted a
temporary order from the FDIC waiving the prohibition on accepting brokered deposits and (2) it has
provided Broker with a copy of such order prior to any subsequent issuance of CDs. Notwithstanding
the preceding, Broker retains the right to decline to permit issuance for “adequately capitalized”
institutions.
(l) The Depository shall notify Broker of any material change affecting the Depository,
including, but not limited to, changes of its capital status, ownership, name and location or
acquisitions of other depository institutions as it relates to or impacts the CDs or the parties’
performance under this Agreement. The Depository will notify Broker of any such change as soon as
the Depository reasonably deems such change to relate to or impact the CDs or the parties’
performance under this Agreement; provided that the Depository will notify Broker immediately and
in any event prior to offering CDs, if there has been a change in the Depository’s capital status.
(m) To the extent permissible by law, the Depository will give Broker prompt notice (but in
any event prior to any subsequent issuance of CDs hereunder) of any regulatory enforcement actions,
decisions, or orders involving the Depository as it relates to or impacts the CDs or the parties’
performance under this Agreement.
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(n) Insofar as it applies to any CD sold by or through Broker [(including any Selling Group
Member)], the Guarantee is registered under the Securities Act of 1933, as amended. Neither the
applicable registration statement or any applicable prospectus included therein contains an untrue
statement of a material fact or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they are made, not misleading, in
each case insofar as relevant to the offering of the Guarantee.
| 8. | Withdrawals and Redemptions, Assignment, Termination of Deposit Insurance. |
(a) Unless otherwise agreed by the parties hereto, early withdrawal of any CD shall only be
permitted in the event of death or adjudication of incompetence of a Purchaser. Broker shall
promptly notify the Depository and DTC in writing of any request by or on behalf of a Purchaser for
early withdrawal, and shall provide all appropriate documentation to support such request. In the
event of any such early withdrawal, DTC, pursuant to the DTC Letter of Representations and the
Master Certificate, shall make appropriate notation of such withdrawal on the appropriate Master
Certificate then held by it to reflect the reduction in aggregate principal outstanding. The
Depository shall have no responsibility for verifying the validity or sufficiency of any such
documents. However, the Depository reserves the right to deny early withdrawal if the written
verification submitted by [Name of institution] of the Purchaser’s death or adjudication of mental
incompetence is determined to be unsatisfactory.
(b) Pursuant to the procedures set forth in Section 3 of this Agreement, the parties hereto
may agree to permit the Depository to redeem certain CDs at its option under terms and conditions
set forth in the related term sheet and Master Certificate. Unless the parties hereto agree
otherwise, redemption shall be for the full aggregate principal amount of the Master Certificate
then outstanding and the redemption price payable shall be 100% of the principal amount of each CD
outstanding, plus accrued interest to, but not including, the date of redemption. Notice of
redemption shall be given by the Depository to DTC and to Broker in the time period specified in
the relevant Master Certificate. Broker shall use reasonable efforts to give notice of redemption
to Purchasers holding CDs subject to redemption prior to the date of redemption. Failure by Broker
[(or a Broker or Selling Group Member)] to give prior notice of redemption to a Purchaser shall not
affect the validity of any such redemption.
(c) Except in the event of the Depository’s insolvency, the Depository may not transfer or
assign the CDs to another insured depository institution unless (i) the Depository provides Broker
and DTC with at least 30 days’ prior notification (or if later, with prior notification as soon as
permitted under applicable law) of the transfer or assignment of the CDs and (ii) the depository
institution assuming the CDs agrees to assume the Depository’s obligations under this Agreement
with respect to establishing and maintaining the CDs.
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9. Indemnification.
[(a)] Either party shall indemnify and hold the other harmless from any loss, cost, damages
and expense (including court costs and attorneys’ fees and disbursements, but excluding loss of
anticipated profits) arising out of the transactions herein contemplated resulting from the breach
by either party of any of its representations, warranties or agreements contained in this
Agreement.
[(b) Broker shall indemnify and hold the Depository harmless from any loss, cost, damages and
expense (including court costs and attorney’s fees and disbursements, but excluding loss of
anticipated profits) arising out of the transactions contemplated herein or in any Selling Group
Agreement resulting from any actions taken or omitted to be taken by any Selling Group Member in
carrying out the transactions so contemplated or the breach or alleged breach by any Selling Group
Member of any representations, warranties or covenants contained in the Selling Group Agreement
between Broker and such Member, including the nonperformance of any of such Member’s obligations
under such Selling Group Agreement.]
10. Notice of Legal Action. Each party will promptly advise the other of any legal or
administrative action of which it obtains knowledge by any state or federal court, agency or
authority, taken or threatened to be taken, which would preclude, limit or otherwise restrict the
offering of the CDs.
11. Secondary Market. Broker will endeavor to maintain a secondary market for the CDs
sold through Broker; provided that Broker shall not be required to, and shall incur no liability
for failure to maintain such a market. It is understood and agreed that Broker shall be entitled
to the dealer spread in connection with such secondary market transactions effected with or through
Broker
12. Disclosure and Confidentiality.
(a) Prior to using any descriptive materials which identify the Depository by name and which
are not intended solely for internal use, Broker will submit such materials to the Depository for
prompt review and approval. Broker agrees to send the Depository on each Trade Date a copy of the
disclosure statement then in effect for the CD products being currently offered by Broker on behalf
of the Depository.
(b) The Depository has provided, and while any CD remains outstanding, will provide DTC with
information concerning changes of its ownership, name or location and assumption of the CDs by
another depository institution.
(c) Broker will comply with the regulations applicable to the advertising of deposits by
deposit brokers contained in Regulation DD, 12 C.F.R. Part 230.
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(d) Each party will safeguard and hold confidential from disclosure to unauthorized parties
all non-public information relating to this Agreement [(and the Selling Group Agreements)] and the
transactions contemplated herein [and therein]. Both parties agree to keep Purchasers’ records
strictly confidential and shall not use information disclosed under this Agreement [(and the
Selling Group Agreements)] for any purpose unrelated to this Agreement [(and the Selling Group
Agreements)]. For purposes of the foregoing, only officers, directors, employees and agents of
Broker and the Depository [(and the Selling Group Members)], including their accountants, auditors
and attorneys, shall be authorized parties on a “need to know basis” consistent with their
respective positions, legal obligations and responsibilities. Notwithstanding the foregoing,
disclosure may be made by either party [(or any Selling Group Member)] to state or federal agencies
in a manner and to the extent consistent with the legal and regulatory requirements applicable
to Broker, or the Depository [(or any Selling Group Member)]. In addition, if the Depository
receives a request for information regarding a Purchaser from a party to a judicial or
administrative proceeding, a court, an administrative agency or a federal or state bank regulatory
agency the Depository will inform Broker of the request and Broker will provide [(or will direct
the appropriate Selling Group Member to provide)] the information sought as soon as possible but in
any event within 10 days.
13. Duration of Agreement. This Agreement shall continue in full force and effect
until terminated by either party hereto by giving prior written notice to the other party.
Notwithstanding any such termination, the provisions of this Agreement shall continue to apply to
any CDs established by the Depository prior to such termination and the provisions of Sections 6,
7, 9, 10 and 12(d) hereof shall survive any such termination.
14. Expenses. Each party hereto shall pay any costs or expenses incurred by it in
connection with the preparation, execution and performance of this Agreement, except as otherwise
provided in Section 9 hereof.
15. Nonexclusive Operation. The Depository recognizes and agrees that Broker may
offer to purchase or otherwise market certificates of deposit, time deposits, savings accounts or
other instruments or accounts on behalf of or for the account of any other dealer, bank, savings
bank, savings association or any other financial institution.
16. Sales of Comparable Instruments. If the Depository elects to offer, directly or
through another deposit broker, Comparable CDs during the Offering Period in which the Depository
is effecting sales of CDs to or through Broker, the Depository shall notify Broker before it
commences to offer the Comparable CDs through another deposit broker at a higher all-in cost than
the all-in cost on CDs sold to or through Broker during the Offering Period. A “Comparable CD”
means any certificate of deposit, time deposit or other deposit instrument offered during any week
if it is offered generally to the same type of investor, in similar denominations and for a similar
term as any CD.
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17. Notice and Places of Payment. All notices, requests, and demands given to or made
upon the Depository or Broker shall be made in writing by certified, registered or overnight mail,
addressed as follows: If to the Depository, to Xxxxxxx Xxxxx Bank USA, 000 Xxxxxxx Xxx,
0xx Xxxxx, Xxxx Xxxx Xxxx, Xxxx 00000, Attention: Chief Financial Officer, and if to
Broker, to [Name of institution],
[address],
Attention: [Attention]. Such notices, requests,
and demands may also be made to such other persons or places as either party shall advise the other
party in writing in the manner aforesaid.
18. Performance through Subsidiaries or Affiliates. It is understood and agreed that
the services required to be performed by Broker hereunder may, at Broker’s option, be performed by
a subsidiary or an affiliate of Broker; provided, however, that notwithstanding the provisions of
this Section 18, Broker shall remain accountable to the Depository for the services required to be
performed by Broker hereunder.
19. Counterparts. This Agreement may be executed in separate counterparts, each of
which shall be considered one and the same Agreement.
20. Exclusivity. This Agreement and its exhibits constitute the exclusive statement
of the Agreement between the parties and supersedes all prior agreements, negotiations,
representations and proposals, written or oral. Its terms cannot be modified, supplemented or
rescinded except in writing signed by both parties. Neither party shall be bound by or be liable
to the other party for any representation, promise or inducement made by any agent or person in the
other’s employ which is not embodied in this Agreement. Nothing in this Section 20 shall be
interpreted as restricting the rights of the parties to consent to modification of this Agreement.
This Agreement shall be binding upon and inure solely to the benefit of the parties hereto and
their respective successors and permitted assigns, and no other person [(including any Selling
Group Member)] shall have any rights hereunder.
21. Invalidity. If any provision or condition of this Agreement is held invalid or
unenforceable by any court, or self-regulatory agency, such invalidity or unenforceability attaches
only to such provision or condition, and the validity of the remaining provisions and conditions
remains unaffected.
22. Successors. No assignment of this Agreement shall be valid unless the
nonassigning party consents to such an assignment in writing except for an assignment of the
Issuer’s rights and obligations hereunder to an entity that is a member of the FDIC and that
succeeds to all or substantially all of the Issuer’s assets and business and which assumes such
obligations by contract, operation of law or otherwise. Subject to the foregoing sentence, this
Agreement shall be binding upon all successors, assigns or transferees of either party,
irrespective of any change with regard to the name of or the personnel of either party.
23. Amendments. This Agreement may not be changed orally but only by an instrument in
writing signed by the party against whom enforcement of any waiver, change, modification or
discharge is sought.
24. Governing Law and Venue. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York and any legal suit, action or proceedings arising
under this Agreement will be instituted in a state or federal court of appropriate jurisdiction
located in the State of New York.
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IN WITNESS WHEREOF, the Depository and Broker have executed this Agreement as of the day and
year first above written.
XXXXXXX SACHS BANK USA
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[Name of institution] | |
By
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By | |
Authorized Signatory
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Authorized Signatory |
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