EXHIBIT 10-16(a)
MEMBERS AGREEMENT
THIS MEMBERS AGREEMENT ("Agreement") dated as of July 15,
2005, is entered into by and among UNION NATIONAL COMMUNITY BANK,
a national banking association organized under the federal
National Bank Act, as amended, and having its principal office in
Mount Joy, Pennsylvania ("UNCB" or the "Bank") and XXXX XXXXXXX,
an adult individual ("Neihart") and XXXXX XXXXXXX, an adult
individual ("Xxxxxxx") (each a separate "Party" hereto, but
together sometimes referred to as "Neihart/Xxxxxxx") (all parties
collectively referred to as the "Parties").
W I T N E S S E T H:
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WHEREAS, the Bank, by and through its Board of Directors and
management, has determined that it would be advantageous for UNCB
to develop additional capability to originate and process
consumer mortgage loans in Pennsylvania and other states; and
WHEREAS, Neihart and Xxxxxxx have substantial expertise in
the mortgage origination and processing business, and have
heretofore owned and operated a mortgage company licensed in
Pennsylvania and other states, named Home Team Mortgage, Inc., a
Pennsylvania corporation (hereinafter variously referred to as
"Home Team" or "Mortgage Company"); and
WHEREAS, UNCB and Neihart/Xxxxxxx believe and contemplate
that combining the expertise of Neihart and Xxxxxxx,
collectively, with the financial strength and regulatory
exemptions and other advantages of the Bank, owing to its status
as a national banking association will have a positive effect on
the profitability and scope of the operations of the contemplated
mortgage entity, and
WHEREAS, the Parties have each determined that the
transactions contemplated herein, whereby, among other things,
Home Team Financial, LLC ("HTF LLC"or "Company") is formed to
conduct the mortgage business contemplated herein, the Members
purchase interests therein, certain assets of Mortgage Company
are purchased and assumed by HTF, LLC, and Neihart and Xxxxxxx
agree to manage the business for the period of time contemplated
herein, are the best ways to effectuate such a combination and
that it is therefore in their best interests to consummate those
transactions, as set forth in this Agreement, an Operating
Agreement entered into on even date herewith, and the Employment
Agreements and the exhibits, annexes and schedules hereto and
thereto in the manner provided herein and therein; and
WHEREAS, in order for the Parties to take best advantage of
the privileges, exemptions and powers available to the Bank, the
Parties agree that the Bank is required to own a majority
interest in HTF, LLC and to operate the Company as an operating
subsidiary of the Bank; and
WHEREAS, Home Team Mortgage, Inc. also owns an 87.5 % share
in a title insurance agency, TA of Lancaster, LLC ("TA"), which
ownership share Neihart and Xxxxxxx desire to assign to HTF, LLC;
and
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WHEREAS, Neihart and Xxxxxxx desire to provide a mechanism
whereby they will receive value for relinquishing, over time,
their 100% ownership interest in the mortgage business and
furthermore to provide in advance for the Bank to ultimately
assume 100% ownership in the mortgage business; and
WHEREAS, the Bank desires to provide incentives for Neihart
and Xxxxxxx to remain as employees of the Bank and contribute
their considerable expertise to developing and expanding the
Bank's mortgage origination and processing capability through
HTF, LLC, therefore this Agreement and all terms and conditions
set forth herein are expressly contingent upon Neihart and
Xxxxxxx entering into written Employment Agreements with the
Bank, providing that Neihart and Xxxxxxx will be employed by the
Bank to effectuate the purposes of this Agreement,
NOW, THEREFORE, in consideration of the premises, mutual
promises, covenants, agreements, representations and warranties
hereinafter set forth, and of other good and valuable
consideration the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, the
Parties hereto agree as follows:
SECTION 1. DEFINITIONS.
In addition to the terms defined elsewhere in this
Agreement, the following terms shall have the meanings indicated:
"Closing" shall mean the date this Agreement is executed by
all Parties, or, if executed on different days by different
Parties, on the date the last Party executes this Agreement.
"HTF, LLC" or "Company" means Home Team Financial, LLC, the
limited liability company being formed by the Members to operate
the mortgage business of the Bank.
"Knowledge" as pertaining to UNCB, shall mean the actual
knowledge of UNCB Executive Officers Xxxx Xxxxxx, Xxxxxxx Xxxx or
Xxxxxxx Xxxxxx. "Knowledge" as pertaining to Neihart and Xxxxxxx
shall mean the actual knowledge of Xxxx Xxxxxxx and Xxxxx
Xxxxxxx.
"Licensed Software" means software licensed from a third
party licensor or "off the shelf" software.
"Material" Any reference to any event, change, condition or
effect being "material" with respect to any entity or group of
entities means any event, change, condition or effect which (i)
is material to the condition (financial or otherwise),
properties, assets (including
intangible assets), prospects, liabilities, business, operations
or results of operations of such entity or group of entities,
taken as a whole or (ii) would prevent or materially alter or
delay any of the transactions contemplated by this Agreement.
"Material Adverse Effect," with respect to a Person, means
any condition, event, change or occurrence that has or results in
an effect which is Material and adverse to the financial
condition, properties, assets under management, revenues,
business or results of operations and
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future prospects of such Person and its subsidiaries, taken as a
whole, provided, however, that "Material Adverse Effect" shall
not include any change in or effect on the person directly or
indirectly arising out of or attributable to any changes in
general economic conditions.
"Material Contracts" means any instrument, debt obligation,
lease, rental agreement, warehouse line of credit, correspondent
agreement, broker agreement, or agreement to buy and sell loans
to which Home Team, immediately prior to Closing is a party, that
will be assigned or re-executed subsequent to Closing in the name
of or for the benefit of HTF, LLC.
"Member" means a person having an ownership interest in Home
Team Financial, LLC, a limited liability company organized under
the laws of the Commonwealth of Pennsylvania.
"Members" means all of the persons having any ownership
interest in Home Team Financial, LLC, a limited liability company
organized under the laws of the Commonwealth of Pennsylvania.
"Membership interest" The interest of a Member in the
Company, including, without limitation, interests in the profits
and losses, rights to distributions (liquidating or otherwise),
allocations and information, and rights to consent to or approve
actions by the Company, all in accordance with the provisions of
this Agreement, the Operating Agreement, and the Act.
"Mortgage Loan(s)" only if those words are capitalized,
means those mortgage loans originated and closed prior to the
date of Closing.
"Operating Agreement" means that agreement, entered into
even date herewith, entered into by the Members, setting forth,
among other things, certain governing standards and procedures
applicable to HTF, LLC, a copy of which is attached as Exhibit 1.
"Person" includes an individual, corporation, partnership,
limited liability company, association, trust or other
organization, whether incorporated or unincorporated, including,
without limitation the Bank.
"Pipeline Loans" means mortgage loan applications in process
but not closed as of the date of Closing.
"Proprietary Software" means the customized proprietary
software developed by Neihart/Xxxxxxx and used by Home Team
Mortgage, Inc.
"Subsidiary," with respect to a Person, means any other
Person controlled by such Person.
"UNCB's Incremental Income Tax Rate" means, UNCB's parent
company's consolidated marginal income tax rate based on the
United States Internal Revenue Service published corporate income
tax rates, which as of the date of Closing, is 34%.
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SECTION 2. HOME TEAM FINANCIAL, LLC
2.1. Creation of Home Team Financial, LLC - Initial
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Ownership and Capitalization.
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UNCB shall, prior to Closing, have caused to be created a
limited liability company organized under the laws of the
Commonwealth of Pennsylvania, named Home Team Financial, LLC -
or, if that name is unavailable, a different name as close to
"Home Team Mortgage" as is allowable by state authorities, whose
operating purposes shall include the origination and processing
of consumer mortgage loans, and all other lawful activities
attendant thereto. At its inception, the members having a
membership share in HTF LLC shall be UNCB, 98% , Neihart 1.08%
and Xxxxxxx 0 .92%. However, voting rights of the respective
members shall initially be UNCB 51%, Neihart, 24.5% and Xxxxxxx,
24.5%. HTF LLC will be capitalized as follows: 98% cash capital
contribution by UNCB, and 2% cash capital contribution by
Neihart/Xxxxxxx. Neihart/Xxxxxxx also intend to take
distribution in kind from Home Team Mortgage, Inc., those
tangible and intangible assets necessary or appropriate for the
operation of Home Team Mortgage, Inc., for the purpose of
contributing them as capital (which shall include the Proprietary
Software) or selling them outright to HTF LLC such that HTF LLC
may operate substantially the same business operation as did Home
Team Mortgage, subject to differences owing to the fact that HTF
LLC is an LLC, not a corporation, and that HTF LLC will be a
qualified operating subsidiary of a national bank. The cash and
other property required to be contributed by the respective
parties shall be that set forth on Annex "A" to the Operating
Agreement.
2.2. Governance, Management and Operation of HTF LLC.
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HTF LLC shall be governed and overall management authority
shall be vested in an Operating Committee consisting of Xxxx
Xxxxxxx, Xxxxx Xxxxxxx and the current Chief Operating Officer of
the Bank, or his/her designee and current Chief Financial Officer
of the Bank or his/her designee. However the day-to-day
operations of HTF, LLC shall be managed by Xxxx Xxxxxxx, as
President; and Xxxxx Xxxxxxx, as Executive Vice President and
Assistant Secretary. The Operating Committee shall have the
powers and authority as set forth in the Operating Agreement, and
shall be authorized to hire and utilize outside consultants,
whose fees shall be paid by HTF LLC. It is contemplated that
Xxxxx X. Xxxxxx and Xxxx X. Xxxxxxxx, of S.R. Xxxxxxxxx, shall
initially serve as consultants to the Operating Committee.
2.3. Employment of Neihart and Xxxxxxx.
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The Parties Agree that a Material aspect of this Agreement
and the transactions contemplated hereunder are the employment of
Neihart and Xxxxxxx by the Bank to manage and direct HTF, LLC and
to develop new markets in multiple states. Accordingly, this
Agreement, and the transactions contemplated hereunder, are
contingent upon Neihart and Xxxxxxx each entering into an
Employment Agreement, the terms of which are set forth in
"Exhibit 2" and "Exhibit 3," hereto.
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2.4. HTF LLC Profit Distributions.
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Commencing at Closing and continuing for the balance of 2005
and for five (5) years, 2006 through 2010, 37.69% of the Net
Profit distributable to the Members of HTF LLC will be payable as
distributions to Neihart and 32.31% of the Net Profit
distributable to the Members of HTF LLC will be payable to
Xxxxxxx, the remainder shall be payable to the Bank. Commencing
at Closing, and in each successive year, the percentage of Net
Profit distributable to the Members shall be determined in
accordance with Generally Accepted Accounting Principles,
adjusted such that Net Profit is not reduced by amortization of
start-up costs or good-will that arise from the purchase
transactions contemplated in this Agreement. The Operating
Committee shall meet within 45 days after the close of each of
the first three quarters of each year and determine, based upon
all quarters for the year in which the determination is made, a
reasonable estimate of the annual Net Profit distributable to the
Members that will accrue during that year. Based upon that
estimate, 20% of the annual Net Profit distributable to the
Members shall be paid out at the end of each quarter. With the
approval of not less than 75% of the outstanding Membership
votes, the Operating Committee may authorize quarterly payments
in excess of the 20% of the projected annual Net Profit for that
year. The Operating Committee shall meet within 60 days after
the end of each year, determine the actual Net Profit
distributable to the Members for the preceding year and pay
adjusted distributions such that at least 80% of the annual Net
Profit distributable is paid to the Members in accordance with
the Operating Agreement. Distributions above 80% will require
approval of at least 75% of the outstanding Membership votes and
will be based on the Company's cash requirements and
availability, and borrowing capacity in place.
2.5 Step-down in Ownership of HTF LLC and Distributions to
______________________________________________________
Neihart/Xxxxxxx
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Commencing at the beginning of 2011, the ownership shares
of the respective Parties in HTF LLC shall be as follows:
2011 Ownership: UNCB 98.4%
Neihart 0.86%
Xxxxxxx 0.74%
2012 Ownership UNCB 98.8%
Neihart 0.65%
Xxxxxxx 0.55%
2013 Ownership UNCB 99.2%
Neihart 0.43%
Xxxxxxx 0.37
2014 Ownership UNCB 99.6%
Neihart 0.22%
Xxxxxxx 0.18%
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2015 Ownership UNCB 100%
Neihart 0%
Xxxxxxx 0%
Distributions of Net Profit shall be made in accordance with
Annex C of the Company's Operating Agreement. At the
Commencement of calendar year 2015, UNCB shall become the sole
owner of HTF LLC and shall thereafter be entitled to 100% of the
Net Profit distributions.
2.6 Buyout Payments to Neihart/Xxxxxxx.
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Commencing with Calendar year 2011, Neihart and Xxxxxxx
shall be entitled to payments in consideration of the sale of
their ownership interests in HTF LLC, as set forth in detail in
Section 17 of the Operating Agreement.
2.7. Assumption of Ownership in Title Agency.
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At Closing, Neihart/Xxxxxxx will cause all of the ownership
interest in TA which is currently held by Home Team to be
assigned, free and clear of all encumbrances, to HTF LLC. HTF
LLC will, contemporaneously with the assignment described in this
Section, contribute $20,000 in cash as a capital contribution to
TA. Within 30 days after the date of Closing, TA will pay to
Home Team an amount equal to Home Team's capital account in TA,
calculated as of July 15, 2005. The assignment of ownership
shall be evidenced by the Assignment of Interest in a Limited
Liability Company attached as "Exhibit 4."
2.8 Sale of Assets.
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Certain non-cash assets, including equipment, furniture,
fixtures, furnishings, supplies, and computer hardware and
Licensed Software heretofore utilized in the business operations
of Home Team (but excluding the Proprietary Software which shall
be contributed as Capital in HTF, LLC) , and including all
Pipeline Loans , together with their files, and all records,
documentation manuals and other instruments evidencing such non-
cash assets shall be purchased by HTF LLC from Home Team on the
date of Closing, for the purchase price of One Hundred Fifty
Five Thousand Dollars ($155,000), including the list of assets
set forth in "Exhibit 5."
2.9 Assignment of Leases
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Home Team, on the date of Closing, also shall assign all
leases of real and personal property used in its mortgage
business, exclusive of any motor vehicles, to HTF LLC.
2.10 Liquidation and Dissolution of Home Team Mortgage, Inc.
_______________________________________________________
As of the date of Closing, Neihart and Xxxxxxx will have in
place procedures and means to pay all creditors of Home Team,
distribute all remaining assets thereof to Neihart and Xxxxxxx
individually, and to effectuate a dissolution of the corporation
by filing Articles of Dissolution with the Pennsylvania Secretary
of State, which shall take place within twelve (12) months after
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Closing.
SECTION 3.REPRESENTATIONS AND WARRANTIES OF UNCB
UNCB represents and warrants to Neihart and Xxxxxxx as
follows:
3.1 Corporate Authority. The execution and delivery of this
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Agreement and the consummation of the transactions contemplated
by this Agreement have been duly and validly authorized by the
Board of Directors of UNCB, and no other corporate action on the
part of UNCB is necessary to authorize the approval of this
Agreement. UNCB: (1) has corporate power to own its properties
and to conduct its business as currently conducted; (2) has
substantially complied with, and is not in default in any respect
under, any laws, regulations, ordinances, orders or decrees
applicable to the conduct of its business and the ownership of
its properties, including regulatory minimum capital
requirements, the non-compliance with which or the default under
which in the aggregate would have a Material Adverse Effect on
the transactions contemplated under this Agreement; (3) has not
failed to file with the proper federal, state, local or other
authorities any report or other document required to be so filed
in connection with the transactions contemplated in this
Agreement; and (4) has obtained all prior approvals,
authorizations, consents, licenses, clearances and orders of, and
has currently effective registrations with all governmental and
regulatory authorities, which are necessary to the business or
operations contemplated in this Agreement.
3.2 Organization and Standing. UNCB is a national banking
_________________________
association, and duly organized, validly existing and in good
standing under the laws of United States. UNCB has full power
and lawful authority to own and hold its properties and to carry
on its present business. UNCB is duly licensed, registered or
qualified to do business in each jurisdiction in which the nature
of the business conducted by it or the character or location of
the properties and assets owned or leased by it makes such
licensing, registration or qualification necessary, except where
the failure to be so licensed, registered or qualified will not
have a Material Adverse Effect, and all such licenses,
registrations and qualifications are in full force and effect in
all material respects.
3.3 Actions, Suits, and Proceedings.
_______________________________
(1) There is no litigation, investigation or proceeding
pending, or to the Knowledge of UNCB threatened, that
involves UNCB or its properties and that, if determined
adversely to UNCB, would have a Material Adverse Effect on
the transactions contemplated in this Agreement;
(2) There are no outstanding orders, writs, injunctions,
decrees, consent agreements, memoranda of understanding or
other directives of any federal, state or local court or
governmental authority or of any arbitration tribunal
against UNCB that would have a Material Adverse Effect; and
(3) UNCB is not aware of any fact or condition presently
existing that might give rise to any litigation,
investigation or proceeding that, if determined adversely to
UNCB, would have a Material Adverse Effect on the
transactions contemplated in this Agreement.
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3.4 Compliance with Laws; Governmental Authorizations.
__________________________________________________
Except where noncompliance would not have a Material Adverse
Effect upon the condition (financial or otherwise), assets,
liabilities, business, operations or future prospects of UNCB:
(i) UNCB is in compliance with all statutes, laws, ordinances,
rules, regulations, judgments, orders, decrees, directives,
consent agreements, memoranda of understanding, permits,
concessions, grants, franchises, licenses, and other governmental
authorizations or approvals applicable to UNCB or to any of its
properties; and (ii) all permits, concessions, grants,
franchises, licenses and other governmental authorizations and
approvals necessary for the conduct of the business of UNCB as
presently conducted have been duly obtained and are in full force
and effect and there are no proceedings pending, or to the
knowledge of threatened, which may result in the revocation,
cancellation, suspension or Material adverse modification of any
thereof.
3.5 Insurance. UNCB is insured by reputable insurers
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against all risks normally insured against by financial
institutions, and all of the insurance policies or bonds
maintained by it are in full force and effect and for reasonable
amounts against risks that companies engaged in a similar
business would, in accordance with good business practice,
customarily be insured, and have maintained all insurance
required by applicable laws and regulations. UNCB is not in
default and all material claims have been filed in due and timely
fashion.
3.6 Deposit Insurance. The deposits of UNCB are insured by
_________________
the Bank Insurance Fund of the Federal Deposit Insurance
Corporation (the "FDIC") to the maximum extent provided in the
Federal Deposit Insurance Act.
3.7 Compliance with Privacy Laws Policies. UNCB is in
_____________________________________
compliance with (1) the terms of its own privacy policy as it
exists on the date of this Agreement, a true and correct copy of
which has been made available to Neihart and Xxxxxxx (the
"Privacy Policy") and (2) any Applicable Laws concerning the
protection of confidential personal information received from
customers and consumers, including without limitation, Title V of
the Xxxxx-Xxxxx-Xxxxxx Act of 1999, except in each case for any
non-compliance that, individually or in the aggregate, has not
had, or would not reasonably be expected to have, a Material
Adverse Effect.
3.8 Representations and Warranties. No representation or
______________________________
warranty by UNCB and no statement by UNCB in any certificate,
agreement, exhibit or other document furnished in connection with
the transactions contemplated by this Agreement, contains any
untrue statement of a material fact or omit to state any material
fact necessary to make the representation, warranty or statement
not misleading; provided, however, that information as of a later
date shall be deemed to modify information as of an earlier date.
3.9 Consents and Approvals; No Violations. The execution,
_____________________________________
delivery and performance of this Agreement by UNCB does not, and
the consummation of the transactions contemplated herein will
not, constitute: (i) subject to receipt of any required
regulatory approvals, a breach or violation of, or a default
under, any law, rule or regulation or any judgment, decree,
order, governmental permit or license, to which UNCB (or any of
its properties) is subject, which breach, violation or default
would have a Material Adverse Effect on it, (ii) a breach or
violation of, or a default under UNCB's Articles of
Incorporation, or Bylaws, or (iii) a breach or violation of, or a
default under (or an event which with due notice or lapse of time
or both would constitute a default under), or result in the
termination of, accelerate
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the performance required by, or result in the creation of any
lien, pledge, security interest, charge or other encumbrance upon
any of the properties or assets of UNCB under any of the terms,
conditions or provisions of any note, bond, indenture, deed of
trust, capital lease, security agreement, loan agreement, or
commitment for the borrowing of money, or the deferred purchase
price of assets, or other agreement, instrument or obligation to
which UNCB is a party, or to which any of UNCB's properties or
assets may be bound, or affected, except for any of the foregoing
that, individually or in the aggregate, would not have a Material
Adverse Effect on UNCB or enable any person to enjoin the
transactions contemplated pursuant to this Agreement. The
consummation of the transactions contemplated hereby will not
require any approval, consent, notices or waiver under any such
law, rule, regulation, judgment, decree, order, governmental
permit or license or the approval, consent or waiver of any other
party to any such agreement, indenture or instrument, other than
Notice to the Office of the Comptroller of the Currency in the
United States Treasury Department of the creation of the
operating subsidiary of the Bank, and any other approvals,
consents or waivers, the absence of which, individually or in the
aggregate, would not result in a Material Adverse Effect on UNCB
or enable any person to enjoin the transactions contemplated
pursuant to this agreement.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF NEIHART AND XXXXXXX
Neihart and Xxxxxxx each individually represent and warrant to
UNCB as follows:
4.1. Neihart and Xxxxxxx are citizens of the United States
and are each at least twenty-one (21) years of age.
4.2.Neihart and Xxxxxxx are domiciled within the
Commonwealth of Pennsylvania and maintain their principal
residences at the address set forth at the end of this Agreement.
Neither Neihart nor Xxxxxxx has any present intention of moving
his principal residence to a different state or territory.
4.3.The Membership Interest in Home Team Financial, LLC will
be acquired by Neihart and Xxxxxxx for investment only, each for
his own account, and not with a view to resale, or offer for
sale, or for sale in connection with the distribution or transfer
thereof. The Membership Interest is not being purchased for
subdivision or fractionalization thereof; and Neihart and
Xxxxxxx have no contract, undertaking, agreement, arrangement, or
plans with any person or entity to sell, hypothecate, pledge,
donate, or otherwise transfer to any such person or entity all or
any part of the Membership Interest.
4.4.Xxxxxxx'x and Xxxxxxx'x present financial condition is
such that neither Neihart nor Xxxxxxx is under any present or
contemplated future need to dispose of any portion of the
Membership to satisfy any existing or contemplated undertaking,
need, or indebtedness.
4.5.Litigation. No litigation or administrative,
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investigative or arbitration proceeding is pending or, to the
best of Neihart/Xxxxxxx'x Knowledge, threatened against Home Team
Mortgage, Inc., or Neihart or Xxxxxxx individually, which if
determined adversely to Neihart/Xxxxxxx would materially
adversely affect the execution, delivery or enforceability of
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this Agreement or which would materially impair Neihart/Xxxxxxx'x
ability to perform its obligations under this Agreement.
4.6. Contracts. There are no material contracts to which
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Home Team Mortgage, Inc. or Neihart or Xxxxxxx individually is a
party or by which it is bound that contains covenants limiting
the freedom of Neihart/Xxxxxxx to engage in any line of business
in any geographic area or to compete with any Person or
restricting the ability of Neihart and Xxxxxxx, respectively, to
enter into the Employment Agreements attached hereto as Exhibits
2 and 3.
4.7. Representations and Warranties as to Home Team
______________________________________________
Mortgage, Inc.
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4.7.1 Financial Statements. Neihart/Xxxxxxx have
_____________________
delivered to UNCB the following financial statements, each of
which (including any related notes and schedules) to Neihart and
Xxxxxxx'x Knowledge, presents fairly the financial condition and
results of operations of Home Team, at the dates and for the
periods covered by the statements, in accordance with GAAP,
consistently applied throughout the periods covered by the
statements, except as otherwise noted in a footnote: Balance
Sheets, Statements of Income, Statements of Shareholders' Equity,
and Consolidated Statements of Cash Flows and accompanying notes
as of and for the years ended December 31, 2004, and December 31,
2003, audited by Trout, Xxxxxxxx & Xxxxx, LLP, Certified Public
Accountants.
4.7.2. Ability to Pay all Creditors. Home Team will
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be financially able to pay all creditors from Home Team's
retained earnings and surplus cash after sale of its fixed assets
to HTF LLC (as set forth in Exhibit 5 hereto) such that it may
assign TA to HTF LLC free and clear of any creditor claims.
4.7.3. Mortgage Banking Operations and Activities.
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(1) Mortgage Banking Licenses and Qualifications. To
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Xxxxxxx'x and Xxxxxxx'x Knowledge, Home Team possesses all
material certifications, authorizations, licenses, permits,
consents, qualifications and orders necessary to conduct
its current mortgage banking business ("Licenses"), and is
in good standing under all applicable federal, state and
local laws and regulations thereunder as a mortgage broker,
lender and/or servicer. All of the Licenses are in full
force and effect, and to Neihart/Xxxxxxx'x Knowledge,
information and belief, no suspension, modification or
cancellation of any of the Licenses is pending or
threatened.
(2) Mortgage Loans. Neihart/Xxxxxxx have previously
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delivered to UNCB certain data and information regarding
the Mortgage Loans originated by Mortgage Company during
2003, 2004 and as of April 30, 2005, pursuant to contracts
between Mortgage Company and investors. Neihart/Xxxxxxx
also have previously delivered to UNCB certain data and
information regarding Pipeline Loans as of the Closing Date,
pursuant to contracts between Mortgage Company and
investors. To Xxxxxxx'x and Xxxxxxx'x Knowledge, the
information provided to UNCB is correct in all Material
respects.
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(3) No Recourse. To Xxxxxxx'x and Xxxxxxx'x Knowledge,
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Mortgage Company is not a party to (i) any agreement or
arrangement with (or otherwise obligated to) any person,
including an investor or insurer, to repurchase from any
such person any Mortgage Loans which were brokered by
Mortgage Company ("Previously Disposed Loans") or (ii) any
agreement, arrangement or understanding to reimburse,
indemnify or hold harmless any person or otherwise assume
any liability with respect to any Loss suffered or incurred
as a result of any default under or the foreclosure or sale
of any such Mortgage Loan, except insofar as (a) such
recourse is based upon a breach by Mortgage Company of a
customary representation, warranty or undertaking, or (b)
Mortgage Company incurs expenses such as legal fees in
excess of the customary reimbursement limits, if any, set
forth in the applicable agreement.
(4) Mortgage Broker/Correspondent Agreements.
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Neihart/Xxxxxxx has previously provided UNCB true and
complete copies of all Mortgage Broker/Correspondent
Agreements to which Mortgage Company is a party as of the
date hereof. To Xxxxxxx'x and Xxxxxxx'x Knowledge, the
Mortgage Broker/Correspondent Agreements set forth all the
terms and conditions of Mortgage Company's rights against
any obligations to the Agencies and investors and they have
not been modified in any material respect. All of the
Mortgage Broker/Correspondent Agreements are valid and
binding obligations of Mortgage Company and, to the
Knowledge of Neihart/Xxxxxxx, all of the other parties
thereto, and are in full force and effect and are
enforceable in accordance with their terms, except as
enforcement thereof may be limited to bankruptcy, insolvency
or other similar laws affecting the enforcement of
creditors' rights generally and by general principles of
equity (whether applied in a proceeding in equity or at
law). To Xxxxxxx'x and Xxxxxxx'x Knowledge, there is no
default or claim of default by any party under any such
Mortgage Broker/Correspondent Agreement, and except for the
consummation of the transactions contemplated by this
Agreement, no event has occurred which with the passage of
time or the giving of notice or both would constitute a
default by any party under any such Mortgage
Broker/Correspondent Agreement or would result in any such
Mortgage Broker/Correspondent Agreement being terminable by
any party thereto. As of the date of this Agreement, there
is no pending or, to the Knowledge of Neihart/Xxxxxxx,
threatened cancellation of any Mortgage Broker/Correspondent
Agreement. No material sanctions or penalties have been
imposed upon Mortgage Company under any Mortgage
Broker/Correspondent Agreement or under any applicable
regulation.
(5) Compliance.
__________
(a) Except where noncompliance would not have a
Material Adverse Effect upon the condition (financial
or otherwise), assets, liability, business, operating
or future prospects of Mortgage Company, Mortgage
Company is, to Neihart/Xxxxxxx'x Knowledge, in
compliance in all Material respects with all federal,
state and other applicable laws, rules, regulations,
orders, writs, decrees, injunctions and other
requirements of any court or governmental authorities
applicable to it, its properties and assets and its
conduct of business, the breach of
11
which would require the repurchase of a Mortgage Loan
or result in the Mortgage Bank incurring a Material
loss. Mortgage Company has timely filed all material
reports required by any investor or insurer or by any
federal, state or municipal law, regulation or
ordinance, to be filed except where the failure to do
so would not have a Material Adverse Effect on the
business, financial condition or results of operation
of Mortgage Bank taken as a whole. To
Neihart/Xxxxxxx'x Knowledge, Mortgage Company has not
done or failed to do, and has not caused to be done or
omitted to be done, any act, the effect of which would
operate to invalidate or materially impair (i) any
private mortgage insurance or commitment of any private
mortgage insurer to insure, (ii) any title insurance
policy, (iii) any hazard insurance policy, (iv) any
flood insurance policy, (v) any fidelity bond, direct
surety bond, or errors and omissions insurance policy
required by FNMA, FHLMC, or private mortgage insurers,
or (vi) any surety or guaranty agreement. To
Neihart/Xxxxxxx'x Knowledge, no agency, investor or
private mortgage insurer has (i) claimed that Mortgage
Company has repeatedly violated or has not materially
complied on a recurring basis with the applicable
underwriting standards with respect to Mortgage Loans
originated by Mortgage Company to an investor or (ii)
imposed restrictions on the activities of Mortgage
Company.
(b) Neihart/Xxxxxxx have no Knowledge of any
notice received by Home Team as of the Closing Date
that any Mortgage Loan originated by Home Team involve
a violation of the purchaser's underwriting guidelines
which would require the Repurchase of a Mortgage Loan
by Home Team.
(c) Mortgage Company currently maintains and
enforces internal polices and procedures which protect
the confidentiality of non-public personal information
of borrowers in compliance with Title V of the Xxxxx-
Xxxxx-Xxxxxx Act and other applicable federal and state
privacy laws and regulations.
(6) Loan Disbursement.
_________________
To Neihart/Xxxxxxx'x Knowledge, upon origination,
all of the Mortgage Loans were fully disbursed in
accordance with applicable law and regulations in all
Material respects.
(7) Payment of Taxes, Insurance Premiums, Etc.
___________________________________________
The responsibilities of Mortgage Company with
respect to all applicable taxes (including tax
reporting for the period prior to the Closing),
assessments, ground rents, flood insurance premiums,
hazard insurance premiums and mortgage insurance
premiums that are related to the Mortgage Loans have
been duly met in all Material respects.
4.7.4. CONTRACTS. Neihart/Xxxxxxx has previously made
available to UNCB true and complete copies of each contract that
is Material to the current business of Home Team
12
Mortgage, Inc., including true and complete descriptions of any
oral contracts, in all cases as amended and currently in effect.
"Exhibit 5" sets forth a complete list of all fixed assets of
Home Team being purchased by HTF LLC on the date of Closing,
including, without limitation, fixtures, equipment, supplies,
computer hardware and Licensed Software.
Each of the Material Contracts to which Home Team is a
party that relates to or affects the assets or operations of
Home Team or to which Home Team or their respective assets or
operations may be bound or subject is a valid and binding
obligation of Home Team and is in full force and effect, except
for where the failure to be in full force and effect would not,
individually or in the aggregate, have a Material Adverse Effect.
4.7.5. LABOR AND EMPLOYMENT MATTERS.
(1) To Neihart/Xxxxxxx'x Knowledge, Home Team is and
has been in compliance in all Material respects with
all applicable laws respecting employment and
employment practices, terms, and conditions of
employment and wages and hours, including, such laws
respecting employment discrimination, equal
opportunity, affirmative action, worker's compensation,
occupational safety, and health requirements and
unemployment insurance and related matters, and are not
engaged in and have not engaged in any unfair labor
practice;
(2) Neihart/Xxxxxxx have not received notice,
correspondence, or oral or written indication or
communication of, nor to the Knowledge of
Neihart/Xxxxxxx, Home Team is not subject to, any
investigation or review by or before any governmental
entity concerning any violations of any such applicable
labor or employment laws, and, to the Knowledge of
Neihart/Xxxxxxx, there is no such investigation
threatened nor has any such investigation occurred
during the last three years, nor has any governmental
entity provided any notice to Home Team or otherwise
asserted an intention to conduct any such
investigation;
4.7.6.TITLE TO ASSETS.
(1) Home Team does not own any real property. To
Neihart/Xxxxxxx'x Knowledge, Home Team has good and
marketable title, free and clear of all liens and
encumbrances, to all other property and assets,
tangible and intangible, set forth on "Exhibit 5"
except liens for taxes or assessments not delinquent,
and such other liens and encumbrances and imperfections
of title as do not Materially affect the value of such
property or as reflected in the Home Team December 31,
2004 Balance Sheet and which do not interfere with or
impair its present and continued use. All real
properties leased or operated by Home Team which are
Material to the business, operations or financial
condition of Home Team are in substantially good
operating condition and repair (ordinary wear and tear
excepted).
(2) To Neihart/Xxxxxxx'x Knowledge, all properties
held by Home Team under leases are held by it under
valid, binding and enforceable leases (subject to
13
applicable bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium and similar laws
affecting creditors' rights generally and subject, as
to enforceability, to general principles of equity),
with such exceptions as are not Material and do not
interfere with the conduct of its business, as the case
may be, and it enjoys quiet and peaceful possession of
such leased properties. To Neihart/Xxxxxxx'x Knowledge,
Home Team, and to their Knowledge any third party, is
not in default in any Material respect under any
Material lease, agreement or obligation regarding Home
Team's properties or to which Home Team is a party or
by which it is bound.
4.7.7. PROPRIETARY SOFTWARE. The current software
applications used by Home Team in the operation of its business
shall be migrated to and become the property of HTF, LLC as of
the Closing date. The Licensed Software shall be purchased by
HTF, LLC and the Proprietary Software shall be contributed as
capital of HTF, LLC. Neihart and Xxxxxxx represent that Home
Team has, and Neihart and Xxxxxxx, upon distribution to them of
the Proprietary Software, will have complete rights to and
ownership of the Proprietary Software, including possession of,
or ready access to, the source code for such Proprietary Software
in its most recent version. To Neihart/Xxxxxxx'x Knowledge, no
part of any such Proprietary Software infringes upon the software
of any other person or entity, or violates or infringes upon any
common law or statutory rights of any other person or entity.
None of the Proprietary Software has been sold, assigned,
licensed, distributed or in any other way disposed of or
encumbered.
4.7.8.LICENSED SOFTWARE. The Licensed Software is held by
Home Team legitimately and to Neihart/Xxxxxxx'x Knowledge, is
fully transferable hereunder without any third party consent. To
Neihart/Xxxxxxx'x Knowledge, all of Home Team's computer hardware
has legitimately licensed software installed therein.
4.7.9. NO ERRORS; NONCONFORMITY. To the Knowledge of
Neihart/Xxxxxxx, the Proprietary Software is free from any
Material defect or programming or documentation error, operates
and runs in a reasonable and efficient business manner,
Materially conforms to the stated specifications thereof, and,
the applications can be reasonably recreated from their
associated source codes.
4.7.10. DOCUMENTATION. At Closing, as part of the purchase
of the fixed assets of Home Team and in-kind capital
contribution, Neihart/Xxxxxxx will furnish UNCB with true and
accurate copies of all documentation (end user or otherwise)
relating to the use, maintenance and operation of the Proprietary
and Licensed Software, and as to the Software owned by Home Team,
the source code.
4.7.11 NO VA/FHA LOANS; NO GNMA/FNMA/FHLMC SALES. Home Team
has not originated any Federal Housing Administration or
Veterans Administration-insured Mortgage Loans, nor has it
originated any loans that were sold to or through any government
sponsored mortgage entity, including GNMA, FNMA or FHLMC.
14
4.8 REPRESENTATIONS AND WARRANTIES AS TO TA:
4.8.1. Home Team is the legal and beneficial owner of
eighty-seven and one half percent (87.5%) of the membership
rights in TA. Home Team has not sold, transferred, or encumbered
any or all of the Membership Rights. Neihart/Xxxxxxx has the
full and sufficient right at law and in equity to transfer and
assign the Membership Rights, and is transferring and assigning
the membership rights to HTF, LLC free and clear of any and all
right, title, or interest of any other person whatsoever.
4.8.2. NO DEFAULTS. Neihart/Xxxxxxx have been given no
notice of any default in performing its or Home Team's
obligations of TA.
4.8.3. CONSENTS OF MEMBERS. There are no agreements
between Neihart/Xxxxxxx and any member in TA which restrain,
restrict, or condition the transactions contemplated in this
Agreement, including the admission of HTF LLC as a member in TA,
or if any condition is applicable or any consent required, the
stated condition has been met and the required consent of each
member in TA has been obtained.
4.8.4. TA OPERATING AGREEMENT. Attached as Exhibit 6 is a
true and complete copy of the TA Operating Agreement, effective
and valid in accordance with its terms on the effective date of
this Agreement.
4.8.5. NO VIOLATIONS OR CONFLICTS. To Neihart/Xxxxxxx'x
Knowledge, the execution, delivery, and performance of this
Agreement by Neihart/Xxxxxxx and the consummation of the
transactions contemplated by this Agreement will not (a) violate
or require any registration, qualification, consent, approval, or
filing under, (i) any law, rule or regulation to which TA is
subject or (ii) any judgment, decree, order, government permit or
license to which TA is subject, which violation or requirement
would have a Material Adverse Effect on it; (b) except as
otherwise described in this Agreement, conflict with, require any
consent, approval, or filing under, result in the Material breach
or termination of any provision of, constitute a Material default
under, result in the acceleration of the performance of any of
TA's obligations under, or result in the creation of any claim,
security interest, lien charge, or encumbrance upon any of TA's
properties, assets, or business pursuant to (i) any of TA's
articles of organization or operating agreement, (ii) any
indenture, mortgage, deed of trust, license, permit, approval,
consent, franchise, lease, contract, or other instrument or
agreement to which TA is a party or by which any of TA's assets
or properties is bound, or (iii) any judgment, injunction, order,
writ or decree of any court, arbitrator, government or
governmental agency by which TA or any of TA's assets are bound,
except for any of the foregoing that, individually or in the
aggregate, would not have Material Adverse Effect on TA or enable
any person to enjoin the transfer of TA to HTF LLC under this
Agreement.
4.8.6. CONDUCT OF BUSINESS BY TA. Except where
noncompliance would not have a Material Adverse Effect upon the
condition or business of TA, to Neihart/Xxxxxxx'x Knowledge, TA
has conducted its business in material compliance with all
applicable laws and regulations including the federal Real Estate
Settlement Procedures Act. Except where noncompliance would not
have a Material Adverse Effect upon the condition or business of
TA, Neihart and Xxxxxxx are
15
not aware of the real or personal properties owned, leased,
operated or occupied by TA, nor the use, operation or maintenance
thereof, (i) violating any applicable laws, or (ii) violating any
restrictive or similar covenant, agreement, commitment,
understanding or arrangement.
4.8.7. PROPER LICENSURE. To Neihart/Xxxxxxx'x Knowledge,
TA possesses all Material certifications, authorizations,
licenses, permits, consents, approvals, appointments,
qualifications, and orders ("Permits") lawfully required to
enable TA to conduct its business as a land title company in all
jurisdictions in which TA conducts business, and is in good
standing under all applicable federal, state and local laws and
regulations thereunder. To Neihart/Xxxxxxx'x Knowledge, all of
the Permits are in full force and effect, and to
Neihart/Xxxxxxx'x Knowledge, no suspension, modification or
cancellation of any of the Permits is pending or threatened.
4.8.8. NO ADVERSE LITIGATION OR CLAIMS. To
Neihart/Xxxxxxx'x Knowledge, there is no action, suit,
proceeding, claim, arbitration, or investigation by any
government, or other person including, without limitation any
title insurance claim (i) pending to which TA is a party, (ii)
threatened against or relating to TA or any of TA's assets or
businesses, (iii) challenging Neihart/Xxxxxxx'x right to execute,
deliver and perform this Agreement, or (iv) asserting any right
with respect to any of the Neihart/Xxxxxxx'x interests in TA,
and to Neihart/Xxxxxxx'x Knowledge, there is no basis for any
such action, suit, proceeding, claim, arbitration or
investigation.
4.8.9. FINANCIAL INFORMATION. To Neihart/Xxxxxxx'x
Knowledge, the Bank has been provided with certain financial
statements of TA ("TA Financial Statements") which Neihart and
Xxxxxxx understand are consistent with the books and records of
TA. To Neihart/Xxxxxxx'x Knowledge, there is no Material basis
for assertion against TA of any claim, liability or obligation
not fully disclosed in the TA Financial Statements.
4.8.10.TAXES. To Neihart/Xxxxxxx'x Knowledge, TA has duly
and timely filed with all appropriate governmental agencies, all
tax returns, information returns, and reports required to be
filed by TA. To Neihart/Xxxxxxx'x Knowledge, TA has paid in
full all taxes (including taxes withheld from employees' salaries
and other withholding taxes and obligations), interest,
penalties, assessments and deficiencies owed by TA to all taxing
authorities. To Neihart/Xxxxxxx'x Knowledge, complete and
correct copies of: (a) the income tax returns of TA for two
fiscal years ending December 31, 2004, and December 31, 2003, as
filed by TA with the Internal Revenue Service (the "IRS") and all
state taxing authorities ("Returns") , (b) all audit reports
received by Neihart/Xxxxxxx concerning TA during the last two
years and issued by the IRS or any state taxing authorities, and
(c) any consents and agreements entered into by TA during the
last three years with the IRS or any state taxing authorities
concerning TA have been provided to UNCB. To Neihart/Xxxxxxx'x
Knowledge, all claims by the IRS or any state taxing authorities
for taxes due and payable by TA attributable to TA's business
have been paid by TA. Neihart/Xxxxxxx and TA are not parties to,
and are not aware of, any pending or threatened action, suit,
proceeding, or assessment against TA for the collection of taxes
by any governmental agency.
4.8.11. REAL PROPERTY ASSETS. To Neihart/Xxxxxxx'x
Knowledge, TA does not own any interest in any real estate.
16
4.8.12. PERSONAL PROPERTY ASSETS. To Neihart/Xxxxxxx'x
Knowledge, TA has good and marketable title to all of the
personal property owned by TA free and clear of all pledges,
claims, liens, restrictions, security interests, charges and
other encumbrances. To Neihart/Xxxxxxx'x Knowledge, all of TA's
personal property is in good operating condition and repair
(ordinary wear and tear excepted), fit for its intended purposes,
and is adequate for the continuation of TA's business as a land
title company.
4.8.13. INSURANCE. To Neihart/Xxxxxxx'x knowledge,
information and belief, each insurance policy covering the
activities of TA is in full force and effect, is valid and
enforceable, and TA is not in Material breach of or in default
under any of such policies. Neihart/Xxxxxxx has no notice of, or
any reason to believe that there is or has been, any actual,
threatened, or contemplated termination or cancellation of any
insurance policy relating to the insurance referred to in this
Section. To Neihart/Xxxxxxx'x knowledge, there are no claims that
have been made under any insurance policy relating to the
insurance referred to this Section. To Neihart/Xxxxxxx'x
knowledge, information and belief, TA has not failed to give any
notice or to present any claim under any insurance policy in a
due and timely fashion.
4.8.14. EMPLOYMENT LAWS. To Neihart/Xxxxxxx'x knowledge,
information and belief, TA is not in violation of any applicable
equal employment opportunity laws, wage and hour laws,
occupational safety and health laws, federal labor laws, or any
other applicable laws relating to employment and employment
practices. Neihart/Xxxxxxx are not aware of any investigations,
claims, charges, and employment-related suits or controversies
that have occurred with respect to TA within the last 3 years or
which are presently pending or threatened with respect to TA
under any applicable employment-related law.
4.8.15. BOOKS AND RECORDS. To Neihart/Xxxxxxx'x knowledge,
information and belief, TA has provided UNCB with all of the
books and records pertaining to its business. To
Neihart/Xxxxxxx'x knowledge, such books and records have been
maintained on a current basis. To Neihart/Xxxxxxx'x Knowledge,
TA has consistently used the fiscal year ended December 31 as
their taxable year, and has consistently used the cash method as
its method of accounting for tax purposes.
4.8.16. BANK ACCOUNTS. To Neihart/Xxxxxxx'x Knowledge, the
Bank has been provided with the records of each checking
account, savings account, escrow account and other bank account
and safe deposit box maintained by TA, and the names of all
persons authorized to withdraw funds or other property from, or
otherwise deal with, such accounts and safe deposit boxes. To
Neihart/Xxxxxxx'x Knowledge, TA's escrow and remittance accounts
have been audited by the insurance company(ies) with whom it is
appointed and the audits show no Material discrepancies.
4.8.17. NO ADVERSE CIRCUMSTANCES. Neihart/Xxxxxxx has no
knowledge of any present or future Material condition, state of
facts or circumstances that have affected or may have a Material
Adverse Effect on the business of TA or materially prevent TA
from carrying on its business as a licensed Pennsylvania land
title company.
4.8.18. NO EMPLOYMENT AGREEMENTS. To Neihart/Xxxxxxx'x
Knowledge, TA has not entered into any employment agreements and
all employees can be terminated at will and, to
17
Niehart/Xxxxxxx'x Knowledge, TA has no arrangements with any TA
employees to pay severance or other undisclosed fees.
4.8.19. REAL AND PERSONAL PROPERTY LEASES. To
Neihart/Xxxxxxx'x Knowledge, the Bank has been provided with all
of the leases entered into by TA relating to real or personal
property.
4.8.20. EXISTING DEBT OF TA. To Neihart/Xxxxxxx'x
Knowledge, TA has no existing debt.
4.9. COMPLETE AND ACCURATE DISCLOSURE. Neither this
Agreement nor Neihart/Xxxxxxx'x representations, warranties or
covenants contained herein, nor any financial statement,
schedule (including, without limitation, the exhibits, annexes
and schedules attached hereto), certificate, or other statement
or document delivered by Neihart/Xxxxxxx to UNCB in connection
herewith, when read together, contains any statement which, at
the time and in light of the circumstances under which it is
made, is Materially incorrect, false or misleading with respect
to any Material fact or omits to state any Material fact
necessary to make the statements contained herein or therein not
Materially false or misleading.
4.10. NO UNDISCLOSED INFORMATION. No representation or
warranty in this Section 4 or any annex, schedule in this
Agreement contains any untrue statement of a Material fact, or
omits to state a Material fact necessary in order to make this
statement contained herein or therein in light of the
circumstances under which such statements were made, not
misleading.
4.11 CONSENTS AND APPROVALS; NO VIOLATIONS. The
execution, delivery and performance of this Agreement by
Neihart/Xxxxxxx does not, and the consummation of the
transactions contemplated herein will not constitute: (i) subject
to receipt of any required regulatory approvals, a breach or
violation of, or a default under, any law, rule or regulation or
any judgment, decree, order, governmental permit or license, to
which Home Team (or any of its properties) is subject, which
breach, violation or default would have a Material Adverse Effect
on them, or enable any person to enjoin the transactions
contemplated pursuant to this Agreement; (ii) a breach or
violation of, or a default under Home Team's Articles of
Incorporation, or Bylaws, (iii) a breach or violation of, or a
default under (or an event which with due notice or lapse of time
or both would constitute a default under), or result in the
termination of, accelerate the performance required by, or result
in the creation of any lien, pledge, security interest, charge or
other encumbrance upon any of the properties or assets of Home
Team or Neihart/Xxxxxxx as individuals under any of the terms,
conditions or provisions of any note, bond, indenture, deed of
trust, capital lease, security agreement, loan agreement, or
commitment for the borrowing of money, or the deferred purchase
price of assets, or other agreement, instrument or obligation to
which the Neihart/Xxxxxxx as individuals or Home Team is a party,
or to which any of Home Team's properties or assets may be bound,
or affected, except for any of the foregoing that, individually
or in the aggregate, would not have a Material Adverse Effect on
Home Team nor enable any person to enjoin the transactions
contemplated pursuant to this Agreement. The consummation of the
transactions contemplated hereby will not require any approval,
consent or waiver under any such law, rule, regulation, judgment,
decree, order, governmental permit or license or the approval,
consent or waiver of any other party to any such agreement,
indenture or instrument, all required approvals, consents and
waivers of
18
governmental authorities, any such approval, consent or waiver
that already has been obtained, and any other approvals, consents
or waivers, the absence of which, individually or in the
aggregate, would not result in a Material Adverse Effect on Home
Team or enable any person to enjoin the transactions contemplated
pursuant to this Agreement; and will not require prior approval
or consent of any other person having an ownership interest in
TA, unless such approval has been obtained in writing.
SECTION 5. COVENANTS OF NEIHART AND XXXXXXX
From the date of Closing for as long as Neihart and Xxxxxxx
are Officers or Members of the HTF, LLC, Neihart and Xxxxxxx
covenant and agree to do the following:
5.1 OPERATION OF BUSINESS. Neihart and Xxxxxxx agree to
serve the Operating Committee in carrying out the day to day
affairs of HTF, LLC as Employees of the Bank and Officers of HTF,
LLC, being responsible for the operations of XXX.XXX in all
respects, except for the duties and responsibilities of UNCB
enumerated in Section 15 of the Operating Agreement, and the
matters enumerated in the Operating Agreement that would require
the consent of the Operating Committee or the Members, it being
expressly understood that Neihart and Xxxxxxx, as Officers of
HTF, LLC will have authority to manage the day to day business of
HTF,LLC in accordance with the guidelines, policies and
procedures established by UNCB and the Operating Committee as
appropriate for HTF, LLC as an operating subsidiary of UNCB, the
provisions of their respective Employment Agreements, and
applicable laws, regulations, policies, recommendations and
directives of federal, state, local and municipal government
agencies governing the activities of UNCB, HTF, LLC and TA.
Notwithstanding the foregoing, Neihart and Xxxxxxx agree to
obtain the prior approval of the Operating Committee for the
following matters:
(a) The hiring or firing of any employee receiving
salary or hourly wages over $55,000 (exclusive of
commissions and fringe benefits) on an annualized basis;
(b) The entering into any Material contract, incur any
Material liability or obligation, or make any Material
commitment, acquire or dispose of any Material asset or
engage in any Material transaction or subject any of HTF
LLC's assets to any Material lien, claim, charge or
encumbrance of any kind;
(c) The origination of any loan outside of the
Company's internal lending guidelines or the expansion of
those internal lending guidelines;
(d) The material deviation in any way from the bank
guidelines, policies and procedures relating to mortgage
loan application processing, origination and funding; and
(e) The establishment of any new lender relationships
other than those in effect commencing at the Closing (i.e.,
Wilmington Finance, IndyMac, National City, Countrywide,
Long Beach, Washington Mutual, New Century, Option One,
Interfirst, and Nova Star).
19
5.2 MORTGAGE LOAN ORIGINATION. With respect to HTF, LLC
mortgage loan origination activities, Neihart and Xxxxxxx
covenant as follows:
(a) All mortgage loan applications accepted into HTF,
LLC's pipeline will be processed and underwritten in
accordance with applicable standards established by
purchasers of the loan, and will comply in all material
respects with applicable laws, regulations and policies of
the federal bank regulators.
(b) HTF LLC will maintain and enforce, internal
policies and procedures which protect the confidentiality of
non-public personal information of the borrowers in
compliance with Title V of the Xxxxx-Xxxxx-Xxxxxx Act and
all applicable federal and state privacy laws and
regulations. Any non-public personal information of the
borrowers to which HTF LLC may have access shall never be
used for anything other than the purpose for which it is
intended in connection with its performing services for the
borrowers and any and all purchasers of mortgage loans
originated by HTF, LLC, and any permissible cross-marketing
with the Bank's products and services as may be mutually
agreed and undertaken in accordance with applicable laws.
(c) Neihart/Xxxxxxx acknowledge and understand that
UNCB is committed to full compliance with any and all
applicable laws, rules, regulations and orders relating to
fair lending (the "Fair Lending Laws"). In connection with
such commitment, Neihart/Xxxxxxx covenants that HTF, LLC
shall not engage in any practice or transaction relating to
a mortgage loan which would directly or indirectly have the
effect of discriminating against any mortgage loan applicant
on the basis of race, color, religion, national origin, sex,
marital status or age (provided that the applicant has the
legal capacity to contract), the fact that all or part of
the applicant's income derives from any public assistance
program, or the fact that the applicant has in good faith
exercised any rights under the Consumer Credit Protection
Act. UNCB and Neihart/Xxxxxxx shall cooperate to develop
and implement underwriting criteria and other mortgage loan
practices which: (a) are consistent with safe and sound
banking practices, and (b) are consistent and comply with
the Fair Lending Laws.
5.3. DISSOLUTION OF HOME TEAM. Neihart and Xxxxxxx agree to
use all commercially reasonable efforts to effectuate the
dissolution of Home Team in accordance with the procedures
referenced in Section 2.10 within twelve (12) months after the
Closing, including preparing and filing appropriate Articles of
Dissolution and other documents relating to Home Team as may be
reasonably requested by UNCB that would effectuate an orderly
dissolution. During the interim period from the Closing to the
date of dissolution, Neihart and Xxxxxxx agree to keep in full
force and effect insurance policies covering the activities of
Home Team ("tail insurance") until such time as prudent business
judgment would allow for cancellation thereof.
5.4 COMPLIANCE WITH MUTUAL RELEASE. Neihart and Xxxxxxx
agree to ensure that payments called for in that certain Mutual
Release of All Claims, by and between Xxxxxx X. Xxxx, National
Affiliates, Inc. and Software Partners on the one hand, and
Xxxxxx Xxxxx, Xxxx Xxxxxxx and Home Team Mortgage, Inc., on the
other hand, dated June 13, 2005, shall be made
20
in a timely fashion as set forth in that Mutual Release.
5.5 BEST EFFORTS. Neihart/Xxxxxxx agree to cooperate with
UNCB and shall use its reasonable best efforts to do or cause to
be done all other things necessary or appropriate on their part
in order to undertake their respective obligations and fulfill
their covenants set forth in this Agreement to allow for an
orderly transition of Home Team's business to HTF, LLC. In
particular, Neihart/Xxxxxxx shall:
(1) cooperate with UNCB in making Home Team's
employees reasonably available for training by UNCB, to
the extent that such training is deemed reasonably
necessary by UNCB;
(2) pay all of its expenses related to the
transactions contemplated pursuant to this Agreement
within thirty (30) days after the Closing Date;
(3) prepare and file any other document or assist UNCB
in preparing and filing any other document necessary to
transfer the assets of Home Team to HTF, LLC;
(4) assist UNCB in UNCB's obligation to promptly
prepare and file, all required applications and notices
for regulatory approval of the transactions
contemplated by this Agreement;
(5) cooperate and work with UNCB in marketing HTF,
LLC's and TA's business and in implementing mutually
agreed upon and orderly expansion plans, consistent
with safe and sound operations of the company;
(6) not knowingly take or permit to be taken any action
which would constitute a material breach of any
representation, warranty or covenant set forth in this
Agreement;.
(7) to the extent consistent with prudent business
judgment, use all reasonable efforts to preserve its
present business organization, retain the services of
its present officers and employees, maintain good
relationships with its employees, and maintain its
relationships with customers, suppliers and others
heretofore having business dealings with Home Team, all
for the benefit of HTF LLC; and
(8) assist in maintaining HTF, LLC's books of account,
financial statements and other financial records in
accordance with applicable banking rules and
regulations.
21
SECTION 6. COVENANTS OF UNCB
6.1 Best Efforts. From the date of Closing, UNCB covenants
____________
and agrees to do the following:
(1) Generally to facilitate the establishment and
initial operation of HTF, LLC, consistent with Section 2 hereof,
and the Operating Agreement, and facilitate the smooth transition
of the assets and business operations of Home Team to HTF LLC by,
among other things, cooperating and assisting in the purchase and
transfer of assets from Home Team to HTF, LLC in accordance with
the provisions of Section 2 of this Agreement, the transition of
employees from Home Team to HTF, LLC, the conversion of back-
office operations and transitioning the company into an operating
subsidiary without undue disruption of Home Team's business.
(2) To use all reasonable efforts to undertake UNCB's
responsibilities to HTF, LLC as set forth in Section 15 of
the Operating Agreement;
(3) To make available or otherwise arrange for HTF LLC
one or more warehouse lines of credit along the lines set
forth in Section 15(a) of the Operating Agreement in
appropriate amounts to facilitate HTF LLC engaging in direct
lending;
(4) To promptly obtain all required regulatory
approvals for the creation and operation of the Company as a
qualified operating subsidiary of the Bank;
(5) To use all reasonable efforts to market the
business of HTF LLC and TA to existing and new customers,
and implement mutually agreed upon and orderly expansion
plans of HTF LLC and TA, consistent with safe and sound
operations of each company;
(6) To do or cause to be done all other things
necessary or appropriate on UNCB's part in order to
undertake its obligations and fulfill its covenants set
forth in this Agreement and the Operating Agreement; and
(7) Not knowingly take or permit to be taken any
action which would constitute a material breach of any
representation, warranty or covenant set forth in this
Agreement.
6.2 Within ten (10) days after Closing, UNCB will file with
the United States Office of the Comptroller of the Currency
("OCC"), a letter Notice under OCC regulation set forth at 12
C.F.R. Section 5.34(e)(v)(C)and (P), notifying the Bank's primary
regulator of the creation of HTF, LLC as an operating subsidiary
of the Bank and the transactions contemplated herein, together
with a copy of the Operating Agreement. In the event that,
within 60 days after Closing, the OCC affirmatively rejects an
application filed by the Bank to the effect of any of the
following, then the provisions of this Agreement and the
Employment Agreements shall immediately become null and void,
except for provisions relating to confidentiality, liquidation
and
22
dissolution of HTF, LLC, Dispute resolution and closing of
unclosed mortgage loan applications:
(a) Disapproving UNCB's creation of HTF, LLC as an
operating subsidiary of the Bank;
(b) Determining that HTF, LLC does not qualify under
applicable OCC regulations as an operating subsidiary,
as that term is defined in those regulations; or
(c) Ordering UNCB to divest its interest in HTF, LLC.
SECTION 7. INDEMNIFICATION
7.1. Subject to the terms and conditions of this Agreement,
Neihart and Xxxxxxx, jointly and severally, shall indemnify and
hold harmless UNCB from and against any and all liabilities,
losses, costs, damages, taxes, levies, fees, penalties, fines,
interest, obligations or expenses of any kind whatsoever
(including, without limitation, reasonable attorneys'
accountants', consultants' or experts' fees and disbursements)
("Losses") which UNCB or any of its affiliates actually suffers,
incurs or sustains arising out of or attributable to (whether or
not arising out of third party claims) any legal, administrative,
arbitral, governmental or other proceedings, actions or
governmental investigations of any nature in progress, open,
pending or threatened on the date of this Agreement and any
actions, suits, proceedings or causes of action, whether civil,
criminal, administrative or investigative (including an action by
or in the right of the Home Team Mortgage, Inc.), commenced on
the date of this Agreement or within five (5) years following the
date of this Agreement which relate to actions on or prior to the
date of this Agreement against UNCB, brought by reason of acts or
failure to act, errors and omissions of the officers, directors,
employees, shareholders, or agents of Home Team Mortgage , Inc.,
arising from the activities and business of Home Team Mortgage,
Inc.
7.2 Neihart and Xxxxxxx shall be indemnified by the Company
against expenses actually and necessarily incurred in connection
with the defense of any action, suit or proceedings of any nature
whatsoever in which he or she is made a party by reason of being
or having been an officer, or agent of the Company, or an
employee of the Bank to the fullest extent permitted under
Pennsylvania law. The indemnification shall include, without
limitation, any judgment, fine, penalty, settlement, and
reasonable expenses, unless and to the extent that the party
seeking indemnification has been adjudged liable to the Company,
or to the Bank pursuant to indemnification set forth in this
Section 7. The Operating Committee may not authorize
indemnification in relation to matters as to which the person
seeking indemnification has been adjudged in such action, suit or
proceeding to be liable by reason of willful misconduct
involving active and deliberate dishonesty, bad faith in the
performance of his or her duties, or disloyalty to, or breach of
any agreement with the Company.
7.3 The indemnified party shall promptly notify the
indemnifying party of the discovery by it of, or the assertion
against it of, any claim or potential liability for which
indemnification is provided herein or the commencement of any
action or proceeding in respect of which indemnity may be sought
hereunder; provided, however; that the failure promptly to give
such notice shall affect any indemnified party's rights hereunder
only to the extent that such
23
failure shall: (i) actually materially and adversely affect any
indemnifying party or its rights hereunder; or (ii) result in the
indemnified party failing to give notice of a claim for
indemnification prior to the expiration of the survival period
set forth in this Section 7 to which the claim relates.
7.4 The right of an indemnified party under this Section 7
shall be subject to the following conditions and limitations:
(i) notice of any claim for indemnification under this Section 7
shall have been given within five (5) years and fifteen (15) days
following the date of this Agreement and no party shall have the
right to seek indemnification hereunder unless the claim is so
asserted during such period; (ii) notice of any claim for
indemnification with respect to Losses attributable thereto,
shall have been given prior to the expiration of the applicable
statute of limitations (giving effect to any extensions thereof)
for the assertion of claims by the relevant tax authority; and
(iii) with respect to a claim for indemnification arising out of
or involving an assertion by a third party of liability on the
part of an indemnified party, the indemnified party shall advise
the indemnifying party of all facts relating to such assertion
within the knowledge of the indemnified party, and shall afford
the indemnifying party the opportunity, at the indemnifying
party's cost and expense, to defend against such claims for
liability; in any such action or proceeding, the indemnified
party shall have the right to retain its own counsel and to
participate in the defense, but the fees and expenses of such
counsel shall be at the expense of the indemnified party unless
(1) the indemnifying party and indemnified party mutually agree
in writing to the retention of such counsel or (2) in the
reasonable judgment of counsel for the indemnifying party,
representation of the indemnifying party and the indemnified
party by the same counsel would be inadvisable due to actual or
potential differing or conflicts of interest between them.
7.5 Notwithstanding anything else to the contrary contained
herein and in addition to any of the other conditions,
limitations and exclusions set forth herein, Neihart and Xxxxxxx
shall not be required to indemnify UNCB, and UNCB shall not seek
indemnity from the Neihart and Xxxxxxx for any of the following:
(1) Losses arising from the failure of UNCB in any
Material respect to comply with its obligations under
this Agreement, or with respect to which Neihart and
Xxxxxxx followed the instructions of UNCB; and
(2) Losses for which UNCB is indemnified by any
Person, whether pursuant to an insurance policy,
guarantee or otherwise.
7.6 The indemnifying party shall have the right to settle
or compromise any claim or liability subject to indemnification
under this Section 7 which is susceptible to being settled or
compromised, provided, however, that any such settlement shall
require the consent of the indemnified party, which consent shall
not be unreasonably withheld, provided further however, that the
consent of the indemnified party shall not be required if (1) the
terms of the settlement require only the payment of damages and
payment of the full amount of the relevant indemnification
obligation to the indemnified party is assured and (2) the
indemnified party is not otherwise materially and adversely
affected by the terms of the settlement.
24
7.7 For the limited purposes of determining Neihart and
Xxxxxxx'x indemnification obligations under this Section 7, a
"material" loss shall mean a single loss or claim of Ten Thousand
Dollars ($10,000) or more, or aggregate losses or claims arising
from the same circumstances of Ten Thousand Dollars ($10,000) or
more.
7.8 The foregoing indemnification provisions are in
addition to, and not in derogation of, any statutory, equitable,
or common law remedy any Party may have with respect to Losses
actually suffered, incurred or sustained due to the intentional
or willful actions of a Party in connection with this Agreement,
the transactions contemplated by this Agreement, or other
agreements entered into in connection with this Agreement. Each
of Neihart and Xxxxxxx hereby agrees that he or she will not make
any claim for indemnification against UNCB by reason of the fact
that he or she was a shareholder, director, officer, employee, or
agent of Home Team Mortgage, Inc., or was serving at the request
of such entity as a partner, trustee, shareholder, director,
officer, employee, or agent of another entity (whether such claim
is for judgments, damages, penalties, fines, costs, amounts paid
in settlement, losses, expenses, or otherwise and whether such
claim is pursuant to any statute, charter, document, bylaw,
agreement or otherwise).
SECTION 8. BREACH
8.1 (a) In the event that UNCB breaches the terms of
this Agreement in a material way, or in the event that any
representation, warranty or covenant of UNCB is found to
have been materially false when made by UNCB and the breach
or falsity has a Material Adverse effect on the operation of
HTF LLC, upon 30 days by written notice to UNCB that there
has been a Material breach of any obligation of UNCB
contained herein and such breach has not been remedied
within 30 days after receipt by UNCB of written notice
specifying the nature of such breach and requesting that it
be remedied, Neihart and Xxxxxxx, or either of them, shall
have the right to purchase UNCB's Membership Interest in the
Company at fair market value, as determined by an
independent qualified business valuation consultant having
experience in valuing mortgage banking/brokering businesses,
agreed upon by the parties.
(b) In the event that UNCB or its holding company is
acquired by or merges with another financial institution or
bank holding company, and that entity determines that it
does not want to continue the business of HTF, LLC, then
UNCB shall give notice thereof to Neihart and Xxxxxxx. In
that event, Neihart and Xxxxxxx, or either of them, shall
have the right to purchase UNCB's Membership Interest in
HTF, LLC at fair market value, as determined by an
independent qualified business valuation consultant having
experience in valuing mortgage banking/brokering businesses,
agreed upon by the parties.
(c) For purposes of this Section 8.1 only, if Neihart
and/or Xxxxxxx purchases UNCB's Membership Interest under
either subsection (a) or (b), then the Membership Interest
of the Bank shall be calculated for buyout purposes by
first establishing the fair market value as required above
in this subsection, and then:
25
(i) if the purchase of UNCB's Membership Interest
takes place on or before July 1, 2008, reducing the
fair market value of UNCB's Membership Interest
(including the capital position as set forth in Annex A
of the Operating Agreement) by twenty percent (20%); or
(ii) if the purchase of UNCB's Membership Interest
takes place after July 1, 2008, but before December 31,
2010, reducing the fair market value of UNCB's
Membership Interest (including the capital position as
set forth in Annex A of the Operating Agreement)by
twelve and one-half percent (12.5%).
(d) In the event of either a breach under 8.1(a), or an
acquisition or merger under 8.1(b) where surviving entity
determines not to continue the business of the Company, the
noncompete provisions set forth in Section 10 of Xxxxxxx'x
and Xxxxxxx'x Employment Agreements shall become null and
void.
8.2 In the event that Neihart or Xxxxxxx breaches the terms
of this Agreement in a material way, or in the event that any
representation, warranty or covenant of Neihart/Xxxxxxx is found
to have been materially false when made by Neihart/Xxxxxxx, and
the breach or falsity has a Material Adverse effect on the
operation of HTF, LLC, upon 30 days by written notice to
Neihart/Xxxxxxx that there has been a Material breach of any
obligation by Neihart/Xxxxxxx contained herein and such breach
has not been remedied within 30 days after receipt by
Neihart/Xxxxxxx of written notice specifying the nature of such
breach and requesting that it be remedied UNCB may, in its sole
discretion, immediately purchase all of Neihart and Xxxxxxx'x
Membership Interests in the Company, for which payments shall be
made according to the schedule set forth in Section 8.5 hereof.
Except as otherwise provided herein, the Bank may declare its
obligations under this Agreement, and any obligations under the
Operating Agreement and the Employment Agreements with Neihart
and Xxxxxxx, including, without limitation, any obligations to
make distributions and/or salary payments to Neihart and/or
Xxxxxxx, to be null and void.
8.3 In the event that Neihart engages in conduct
constituting an act or omission that would constitute a cause for
his termination under Section 11(c) of the employment contract
entered into on even date herewith between Neihart, and the Bank,
or in the event that Neihart voluntarily terminates his
employment with the Bank prior to the expiration of the term of
that employment contract, UNCB may, in its sole discretion,
immediately purchase all of Xxxxxxx'x Membership Interest in the
Company, for which payments shall be made according to the
schedule set forth in Section 8.5 hereof. Except as otherwise
provided herein, the Bank may declare its obligations hereunder
to Neihart and any obligations under the Operating Agreement and
the Employment Agreement between Neihart and the Bank, including,
without limitation, any obligations to make distributions and/or
salary payments to be null and void.
8.4 In the event that Xxxxxxx engages in conduct
constituting an act or omission that would constitute a cause for
his termination under Section 11(c) of the employment contract
entered into on even date herewith between Xxxxxxx, and the Bank,
or in the event that Xxxxxxx voluntarily terminates his
employment with the Bank prior to the expiration of the term of
that
26
employment contract, UNCB may, in its sole discretion,
immediately purchase all of Xxxxxxx'x Membership Interest in the
Company, for which payments shall be made according to the
schedule set forth in Section 8.5 hereof. Except as otherwise
provided herein, the Bank may declare its obligations hereunder
to Xxxxxxx and any obligations under the Operating Agreement and
the Employment Agreement between Xxxxxxx, the Bank , including,
without limitation, any obligations to make distributions and/or
salary payments to be null and void.
8.5 Buyout of Neihart and Xxxxxxx in the event of Breach.
____________________________________________________
In the event of a purchase by the Bank of Neihart and/or
Xxxxxxx'x Membership Interest in the Company pursuant to Sections
8.2, 8.3 or 8.4 hereof, the payment in exchange for Neihart
and/or Xxxxxxx'x Membership Interest, which shall be deemed to be
transferred to the Bank as of termination, shall be calculated
as set forth in Section 2.6 hereof and Section 17 of the
Operating Agreement (including the application of the Member's
applicable Net Profit Distribution % prior to any scheduled
reductions as noted in Annex C), except that:
(a) In the event that the termination takes place on or
after July 1, 2008, the calculation of all payments
subsequent to termination of employment shall be derived
from calculating the annualized Net Profit distributable to
the Members, averaged from the quarter completed immediately
after the termination, together with the 11 quarters
immediately prior to the termination, which average shall
give more weight to the most recent years as set forth in
Section 2.6 hereof; multiplied by the number of buyout
payment years remaining in the schedule set forth in Section
2.6. The resulting sum calculated as the total of payments
to be made in exchange for the breaching party's Membership
Interest shall be reduced by twelve and one half percent
(12.5%). That sum shall be further reduced by a dollar
figure calculated by multiplying that same sum by UNCB's
incremental income tax rate for the latest completed taxable
year prior to the buyout payment. The resulting sum
calculated shall be paid out in equal annual installments by
April 30 of each year. The first installment becomes due on
or before April 30 of the calendar year following the year
of termination.
(b) In the event that the termination takes place prior to
July 1, 2008, the calculation of all payments subsequent to
termination of employment shall be derived from calculating
the annualized Net Profit distributable to the Members,
averaged from all the quarters including the quarter
completed immediately after the termination, during which
the terminated party held a Membership Interest in the
Company; multiplied by five (5). The resulting sum
calculated as the total of payments to be made in exchange
for the breaching party's Membership Interest shall be
reduced by Twenty percent (20%). That sum shall be further
reduced by a dollar figure calculated by multiplying that
same sum by UNCB's incremental income tax rate for the
latest completed taxable year prior to the buyout payment.
Payment of the total sum determined to be payable to the
terminated employee under this Section shall be payable in
five (5) equal annual installments, the first installment
becomes due on or before April 30 of the calendar year
following the year of termination.
8.6 It is understood by all Parties hereto that the 20% and
12.5% reduction factors in the provisions of Section 8.5 hereof,
are based upon the fact that there will be less time for
27
historical financial performance to indicate future, viable long-
term financial performance of HTF LLC. As such, if Section 8.5
is invoked, UNCB would incur additional risk attributable to the
buyout of Neihart and/or Xxxxxxx'x Membership interest(s). In
addition, if the breach takes place in 2005 through 2009, the
payments under the buyout provisions of this Agreement would be
paid in advance of the expected time absent breach. In making
buyout payments in advance of the expected time, UNCB would also
incur certain opportunity costs that UNCB would be unable to
invest in other ventures.
SECTION 9. EFFECT OF TERMINATION
9.1 Effect. In the event of termination of this Agreement
as provided above, this Agreement shall immediately become null
and void and the transactions contemplated herein shall thereupon
be abandoned, except that the provisions relating to
confidentiality (Subsection 9.3 and Section 11) publicity
(Subsection 17), and expenses (Section 10) of this Agreement
shall survive.
9.2 Limited Liability. Except as provided in Section 10,
the termination of this Agreement in accordance with the terms of
Section 8 shall create no liability on the part of any party, or
on the part of any party's directors, officers, shareholders,
agents or representatives, except that if this Agreement is
terminated by UNCB by reason of a Material breach by
Neihart/Xxxxxxx, or if this Agreement is terminated by
Neihart/Xxxxxxx by reason of a Material breach by UNCB, the
breaching party shall be liable to the nonbreaching party or
parties for all costs or such liability as may be pursued and
found as a matter of law or in equity, including but not limited
to, reasonable out-of-pocket costs and expenses reasonably
incurred by the nonbreaching party or parties in connection with
the preparation, execution and consummation of this Agreement,
including the fees of its or their counsel, accountants,
consultants and other representatives.
9.3 Confidentiality. In the event of the termination of
this Agreement, neither UNCB nor Neihart/Xxxxxxx shall use or
disclose to any other person any confidential information
obtained by it during the course of its investigation of the
other party or parties.
9.4 Buyout upon Termination of employment for no cause. In
the event that the Bank terminates the employment of Neihart or
Xxxxxxx for no cause, such termination shall be considered a
breach of the terminated employee's Employment Agreement and a
Material breach of this Agreement, with the effect set forth in
Section 8.1(a) of this Agreement, including the triggered right
of Neihart and Xxxxxxx to terminate this Agreement and purchase
UNCB's interest in the manner and at the price established in
Section 8.1 herein.
9.5 Upon termination of this Agreement under this Section
9, in the event that Neihart and/or Xxxxxxx purchases UNCB's
Membership Interest in HTF, LLC, all unclosed mortgage loans
being processed by HTF, LLC at the time of termination shall
become the responsibility of the purchaser for purposes of
completing and closing the remaining mortgage loans. Otherwise,
the responsibility for completing unclosed mortgage loan
transactions shall be responsibility of UNCB.
28
SECTION 10. EXPENSES -PAYMENTS ON TERMINATION
10.1 Expenses incurred by each Party in connection with this
Agreement and the transactions contemplated herein shall be
reimbursed by HTF LLC from the cash monies contributed as capital
by each separate party, up to the amount of that cash
contribution, as set forth in "Annex A" of the Operating
Agreement. That is, if the Bank's capital contribution is
$294,000 and Neihart contributes $3,240 cash and Xxxxxxx
contributes $2,760 cash in capital, then Neihart and Xxxxxxx may
be reimbursed for their expenses up to the amount each
contributed in cash capital, and the Bank shall be reimbursed for
its expenses up to $294,000.
10.2 In the event of termination of this Agreement pursuant
to Section 8.2, 8.3 or 8.4, so long as UNCB shall not have
Materially breached its obligations hereunder, subject to the
dispute resolution provisions in Section 27, UNCB may recover all
costs and damages to which it may be entitled by law or in
equity, including all costs and expenses (including reasonable
attorney's fees) incurred by UNCB in connection with any
alternative dispute resolution proceeding. In the event of
termination of this Agreement pursuant to Section 8.1, so long as
Neihart and Xxxxxxx shall not have Materially breached its
obligations hereunder, subject to the dispute resolution
provisions in Section 00, Xxxxxxx and Xxxxxxx may recover all of
their costs and damages to which they may be entitled by law or
in equity, including all costs and expenses (including reasonable
attorney's fees) incurred by Neihart and Xxxxxxx in connection
with any alternative dispute resolution proceeding.
SECTION 11. CONFIDENTIALITY
The parties agree to keep strictly confidential any non-public
or confidential information provided by Neihart/Xxxxxxx to UNCB,
or by UNCB to Neihart and Xxxxxxx pursuant to this Agreement or
as a result of the discussions and negotiations leading to this
Agreement, or to which any other party has acquired or may
acquire access, and indicated (either expressly, in writing or
orally, or by the context of the disclosure or access) by the
disclosing party to be non-public or confidential, or which by
the context thereof reasonably appears to be non-public or
confidential, and to not use or disclose such information in any
manner except in connection with the transactions contemplated by
this Agreement, or unless required by applicable law or court
order. To that end, the parties hereto will each, to the maximum
extent practicable, restrict knowledge of and access to non-
public or confidential information of the other party to its
officers, directors, employees and professional advisors who are
directly involved in the transactions contemplated hereby and
reasonably need to know such information. In the event that any
party is required or becomes legally compelled to disclose any
confidential information, that party shall use all reasonable
efforts to provide the other party with prompt written notice so
that the other party may seek a protective order or other
appropriate remedies and/or waive compliance with this Section
11. In the event that a protective order or other remedy is not
promptly obtained, or the parties waive compliance with the
provisions of this Agreement, the party providing the information
will furnish or disclose only that part of the information which
it is legally required to disclose, and, except in the case of
waiver, notify the entity receiving the information that such
information is considered confidential In addition, all non-
public or
29
confidential documents (including all copies thereof) obtained or
created hereunder by any party shall be returned as soon as
practicable after any termination of this Agreement, or
destroyed, with the party destroying such documents providing a
destruction certificate to the other party (provided, however,
that the parties may retain copies of confidential information
required to be maintained by law for a period of time, provided
that such information be kept strictly confidential and
procedures put in place to protect the continued confidentiality
of such information until the retention period is complete).
SECTION 12. SURVIVAL OF REPRESENTATIONS AND WARRANTIES, ETC.
The representations and warranties set forth in Sections 3 and 4
hereof shall be deemed to have been relied upon by the party to
whom they are made and shall survive for a period not to exceed
three years after the Closing. All covenants and duties which
relate to a time after Closing shall survive Closing and all
other covenants and duties which do not relate to a time after
Closing shall not survive Closing. No investigation made by or
on behalf of either party shall affect the representations and
warranties made pursuant to this Agreement.
SECTION 13. EMPLOYEES
13.1 Except for Xxxx Xxxxxxx and Xxxxx Xxxxxxx who shall be
employed by the Bank pursuant to their respective Employment
Agreements, and except as may be otherwise specifically agreed
to in writing by the Parties and subject to UNCB's satisfactory
review of personnel records, HTF, LLC shall continue to employ
all persons who are employees of Home Team Mortgage, Inc.
immediately before the date of Closing as employees of HTF, LLC
immediately following the date of Closing. The hired employees
will be employees at-will with no express or implied right to
continued employment. It shall be a condition to employment by
HTF, LLC that any former officer or employee of Home Team
Mortgage, Inc. agree to cancel any existing employment contract,
agreement or understanding between him or herself and Home Team
Mortgage, Inc., including, without limitation, all benefits
related to severance arrangements, bonuses, upon a change of
control or otherwise and release HTF, LLC, UNCB, UNCB Affiliates
and Neihart/Xxxxxxx from all contractual obligations under such
agreements, prior to accepting such new employment and without
accepting any of the severance benefits or other benefits or
payments associated with such contract, agreement or
understanding; provided however, that each such employee shall be
entitled to continue to receive medical and retirement benefits
as agreed by the parties, with credit for years of service with
Home Team Mortgage.
30
SECTION 14. MANAGERS AND OFFICERS
14.1 Initial Managers. Home Team Financial, LLC's initial
Operating Committee shall be Xxxx Xxxxxxx, Xxxxx Xxxxxxx, Xxxxxxx
Xxxxxx and Xxxxxxx Xxxx until such time as their successors are
elected or appointed, in accordance with the terms of Home Team
Financial, LLC's Operating Agreement.
14.2 Officers. Xxxx Xxxxxxx shall serve as President and
Xxxxx Xxxxxxx shall serve as Executive Vice President/Assistant
Secretary, Xxxxxxx Xxxxxx shall serve as Secretary/Treasurer and
Xxxxxx Xxxxxxx shall serve as Assistant Treasurer of HTF, LLC,
each pursuant to the terms and conditions of their respective
Employment Agreements with the Bank, if applicable (Copies of
Neihart and Xxxxxxx'x Employment Agreements with the Bank are
attached hereto as Exhibits 2 and 3).
SECTION 15. ENTIRE AGREEMENT
This Agreement, the Operating Agreement and the Employment
Agreements by and between the Bank and Neihart and the Bank and
Xxxxxxx, together with all exhibits, annexes and schedules
attached hereto and thereto, embody the entire agreement among
the Parties hereto with respect to the matters agreed to herein.
All prior negotiations, discussions and agreements by and among
the Parties hereto with respect to matters agreed to in this
Agreement, the Operating Agreement and the Employment Agreements,
or the exhibits, annexes or schedules hereto and thereto, are
hereby superseded and shall have no force or effect.
SECTION 16. SECURITIES AND EXCHANGE COMMISSION REPORTING -
PUBLICITY
16.1 It is understood by the Parties that there is a high
probability that this Agreement and the transactions contemplated
hereunder may be deemed "material" under the Securities laws of
the United States and the Commonwealth of Pennsylvania. The
Parties agree and hereby consent to the filing of a copy of this
Agreement and any ancillary agreements hereto, together with all
Schedules and Exhibits hereto, with the United States Securities
and Exchange Commission and any other government authority deemed
necessary or appropriate by UNCB.
16.2 Except as provided in Subsection 16.1, hereof, the
content and timing of all publicity and announcements concerning
this Agreement, and all transactions contemplated by this
Agreement, shall be subject to joint consultation and approval of
the Parties hereto, subject, however, to the legal and regulatory
obligations applicable to the Parties.
31
SECTION 17. AMENDMENT AND WAIVER
Neither this Agreement, nor any term, covenant, condition or
other provision hereof, may be amended, modified, supplemented,
waived, discharged or terminated except by a document in writing
signed by all of the Parties hereto.
SECTION 18. GOVERNING LAW
This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania
except to the extent that federal law is controlling.
SECTION 19. COMMUNICATIONS
All notices, claims, requests, demands, consents and other
communications which are required or permitted to be given
hereunder shall be in writing and shall be deemed to have been
duly given if hand delivered, sent by recognized overnight
delivery service, sent by certified or registered mail, postage
prepaid, return receipt requested, as follows:
19.1 If to UNCB, to:
UNION NATIONAL COMMUNITY BANK
000 Xxxx Xxxx Xxxxxx
X X Xxx 000
Xxxxx Xxx, XX 00000-0000
Attn: Xxxx X. Xxxxxx, President & CEO
or to such other person or place as shall be designated
in writing, and with a copy to:
XXXXXXXX XXXXXXXX, P.C.
0000 Xxxxxxx Xxxxx Xxxx
Xxxx Xxxx, XX 00000
Attn: Xxxxxxxx Xxxxx, Xx., Esquire
19.2 If to Neihart/Xxxxxxx, to:
Xxxx X. Xxxxxxx
000 Xxxx Xxxxx Xxxxx
Xxxxxxxxx, XX 00000
and
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Xxxxx Xxxxxxx
000 Xxxxxx'x Xxxx Xxx
Xxxxxxx Xxxxxx, XX, 00000
or to such other person or place as shall be designated
to UNCB in writing, and with a copy to:
XXXXXX & XXXXXX, LLP
000 00xx Xxxxxx, X.X.
Xxxxxxxxxx, X.X., 00000
Attn: Xxxx X. XxXxxxxx, Esq.
Any such notice or other communication so addressed shall be
deemed to have been received by the addressee (1) if hand-
delivered or sent by overnight delivery, on the next business day
following the date so delivered or sent, or (2) if sent by
registered or certified mail, five (5) business days following
the date sent.
SECTION 20. SUCCESSORS AND ASSIGNS
The rights and obligations of the Parties hereto shall inure
to the benefit of and shall be binding upon the successors and
assigns of each of them; provided, however, that UNCB shall be
permitted to assign any of the rights, interest or obligations
hereunder to any UNCB Affiliate without the prior written consent
of the other Party but may not otherwise assign its rights,
interest or obligations except in connection with the transfer of
its Membership Interest as permitted under the provisions of
Section 12 of the Operating Agreement.
SECTION 21. HEADINGS, ETC.
The headings of the Sections and Subsections of this
Agreement have been inserted for convenience only and shall not
be deemed to be a part of this Agreement.
SECTION 22. SEVERABILITY
In the event that any one or more provisions of this
Agreement shall for any reason be held invalid, illegal or
unenforceable in any respect, by any court of competent
jurisdiction, such invalidity, illegality or unenforceability
shall not affect any other provisions of this Agreement and the
Parties shall use their best efforts to substitute a valid, legal
and enforceable provision which, insofar as practicable,
implements the purposes and intents of this Agreement.
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SECTION 23. NO THIRD PARTY BENEFICIARY
Except as expressly provided for herein, nothing in this
Agreement is intended to confer upon any person who is not a
Party hereto any rights or remedies of any nature whatsoever
under or by reason of this Agreement.
SECTION 24. COUNTERPARTS
This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original as
against any party whose signature appears thereon, and all of
which shall together constitute one and the same instrument. If
executed in multiple counterparts, this Agreement shall become
binding when any counterparty or counterparty, individually or
taken together, bears the signature of all of the parties.
SECTION 25. FURTHER ASSURANCES
Each Party will execute and deliver such instruments and take
such other actions as the other Party hereto may reasonably
request in order to carry out the intent and purposes of this
Agreement.
SECTION 26. DISCLOSURE SCHEDULES
The inclusion of a given item in a disclosure schedule
annexed to this Agreement shall not be deemed a conclusion or
admission that such item (or any other item) is material or has a
Material Adverse Effect.
SECTION 27. DISPUTE RESOLUTION
27.1 Informal Dispute Resolution. Any and all disputes,
___________________________
claims, controversies and disagreements arising from or relating
to this Agreement initially shall be referred to the Operating
Committee of HTF, LLC for resolution, and then if unresolved
after thirty (30) days, shall be referred to the Chief Executive
Officer of UNCB and Xxxx Xxxxxxx, who shall evaluate the dispute
and meet in good faith to resolve the dispute. In the event a
resolution is not reached within 15 days, the parties agree that
the dispute shall, at the request of any party to the dispute, be
resolved by binding arbitration and not by court action.
27.2 Applicable Arbitration Law and Procedures. If
_________________________________________
arbitration is chosen, it will be conducted pursuant to the then
applicable rules of either the American Arbitration Association
("AAA") or that of JAMS, at the option of the party requesting
the arbitration. Copies of the AAA rules and forms may be
obtained at any American Arbitration Association office, or
through the internet at address xxx.xxx.xxx. Copies of the JAMS
___________
rules may be obtained at any
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JAMS office or through the internet at address xxx.xxxxxxx.xxx.
This arbitration provision is made pursuant to transactions
involving interstate commerce and shall be governed by the
Federal Arbitration Act, 9 U.S.C. Sections 1, et seq. (as amended
from time to time), and the substantive law of Pennsylvania.
27.3 Conduct of Arbitration. Arbitration shall be conducted
______________________
in Lancaster County, Pennsylvania, unless the parties agree to a
different location. The arbitrator shall be selected from a
panel of 3 arbitrators submitted by the parties to the
arbitration, by the parties either mutually agreeing on the
arbitrator or striking persons from the panel until one person is
left, that person being the arbitrator. The parties shall
equally share the fees of the arbitrator and other jointly
incurred reasonable expenses. The arbitrator shall have the
power to authorize reasonable discovery and to issue any
necessary orders and subpoenas. The parties agree that all
discovery shall be limited and expedited to the maximum extent
practical, and the arbitrator is specifically requested and
encouraged to minimize discovery and its cost to the maximum
extent practicable. The arbitrator shall have authority to award
damages and grant such other relief the arbitrator deems
appropriate, including reimbursement of a party's share of the
fees and expenses of the arbitration. The arbitrator shall give
effect to statutes of limitation in determining any claim. Any
controversy concerning whether an issue is arbitrable shall be
determined by the arbitrator. The arbitrator shall set forth in
the award findings of fact and conclusions of law supporting the
arbitrator's decision, which must be based upon applicable law
and supported by evidence meeting the judicial standards for the
burden of proof for like claims made in court, under the law of
Pennsylvania. Judgment upon the award may be entered by any
court of competent jurisdiction. Except as specifically set
forth herein, the arbitrator shall have the ability to grant all
equitable and legal remedies, declaratory and injunctive relief,
as may be available under applicable law.
BY AGREEING TO THIS ARBITRATION PROVISION, THE PARTIES ARE
AGREEING TO HAVE DISPUTES ARISING FROM THIS MEMBERS
AGREEMENT, AS DESCRIBED ABOVE (OTHER THAN THOSE DISPUTES
RESOLVED INFORMALLY UNDER SECTION 27.1 HEREOF), RESOLVED
EXCLUSIVELY BY ARBITRATION, AND ARE HEREBY KNOWINGLY AND
VOLUNTARILY WAIVING ANY RIGHT TO LITIGATE ANY SUCH DISPUTES
IN COURT, AND THE PARTIES ARE ALSO WAIVING ANY RIGHT TO A
TRIAL BY JURY.
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IN WITNESS WHEREOF, the Parties hereto, intending to be
legally bound hereby, have caused this Agreement to be duly
executed, as of the date set forth above.
ATTEST: UNION NATIONAL COMMUNITY BANK
___________________________ By:__________________________
Xxxx X. Xxxxxx, President
WITNESS:
___________________________ _____________________________
XXXX XXXXXXX
WITNESS:
___________________________ ______________________________
XXXXX XXXXXXX
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