DATA PROCESSING AGENT AGREEMENT
Exhibit 99.4
Dear Mellon Investor Services LLC:
The following will confirm our agreement (“Agreement”), as more fully described below, in
which Mellon Investor Services LLC (the “Agent” or “MIS”) has agreed to serve as the exclusive data
processing agent in connection with the proposed stock issuance (the “Issuance”) by the to-be
stock holding parent company of Atlantic Coast Bank (“Atlantic Coast”). The Issuance will occur
pursuant to a Plan of Conversion (“Plan”), which may be amended from time to time, adopted in
accordance with applicable regulations (“Statute”). Certain terms whose initial letters are
capitalized are defined herein; others are defined as set forth in the Plan. This Agreement shall
not constitute a part of the Plan.
Both Atlantic Coast and MIS are a “party” to this Agreement and one or both of such entities
are “parties” hereto. For purposes of this Agreement, a “Business Day” is any day that MIS is open
for business, except Saturdays and Sundays.
Section 1. Appointment of Agent. Atlantic Coast hereby appoints and designates MIS as
the exclusive data processing agent for the Issuance and MIS hereby accepts such appointment and
designation, subject to the terms and conditions of this Agreement. The parties hereto understand
and acknowledge that the Agent, by accepting such appointment and designation, in no way endorses
the merits of the Issuance. Atlantic Coast hereby acknowledges that the status of the Agent is that
of an agent only for the limited purposes set forth herein, and Atlantic Coast hereby agrees that
in the Issuance it will not represent or imply that the Agent, by serving as the data processing
agent hereunder or otherwise, has investigated, approved or endorsed the desirability or
advisability of the Issuance, or has approved, endorsed, or passed upon the merits of the Plan and
the Issuance, other than an acknowledgment that the Agent has agreed to serve as data processing
agent for the limited purposes set forth herein. Atlantic Coast further agrees that it will not use
the Agent’s name in any registration statement, prospectus, sales literature, advertisement,
website, presentation or otherwise in connection with the Issuance without receiving the prior
written consent of the Agent. The Agent will not unreasonably withhold its consent to the use of
its name by Atlantic Coast in the Registration Statement and the Prospectus contained therein to be
filed with the Securities and Exchange Commission (“SEC”) and similar filings with the other
regulators in connection with the Stock Issuance Materials to be mailed to Eligible depositors,
Supplemental Eligible depositors and Other Depositors (collectively, “Eligible Members”) of
Atlantic Coast in connection with the Plan. The parties hereto acknowledge and agree that the
Agent has made no investigation with respect to Atlantic Coast, the Plan, the Issuance, the
investment decision of the Eligible Members, or any other aspect of the said transaction taking
place between Atlantic Coast, its depositors and the public. Without limiting the foregoing, the
Agent shall have no duty to ascertain whether Atlantic Coast is in compliance with the Statute or
the Plan and shall not be responsible or liable for any failure of Atlantic Coast to comply with
all applicable law, including the Statute and applicable federal and state securities laws, and the
Plan. All actions taken shall be taken by the Agent pursuant to the
terms and conditions of this Agreement and instructions from one or more authorized persons
representing Atlantic Coast.
Section 2. Fees Payable to the Agent.
| (a) | (i) Atlantic Coast hereby agrees to pay MIS for its services hereunder in accordance with the provisions of the Fee Schedule, attached hereto as Appendix B, and made a part hereof, together with reimbursement for out-of-pocket expenses (including reasonable fees and disbursements of counsel). All amounts owed to MIS are due upon receipt of the invoice and Atlantic Coast hereby agrees to pay all bills submitted by MIS promptly upon receipt. Outstanding balances unpaid for thirty (30) days will accrue interest at the rate of 1.5% per month until paid in full. Atlantic Coast agrees to reimburse MIS for any attorney’s fees or other costs associated with collecting delinquent payments. | ||
| (ii) In the event that this Agreement is terminated by Atlantic Coast due to the termination of the Issuance pursuant to Section 4 hereof, Atlantic Coast shall pay to the Agent all fees and expenses up to and through the date of receipt of notice by MIS of the termination of the Issuance regardless of whether such termination is due to a breach by MIS. | |||
| (iii) The payment of the fees and expenses to the Agent by Atlantic Coast shall not be contingent upon the completion of the Issuance. | |||
| (iv) MIS shall be paid by Atlantic Coast for all services performed and all expenses incurred during the term of this Agreement. | |||
| (v) Atlantic Coast shall be charged for certain expenses advanced or incurred by Mellon in connection with Mellon’s performance of its duties hereunder. Such charges include, but are not limited to, stationery and supplies, such as envelopes, and paper stock, as well as any disbursements for telephone, mail insurance, electronic document creation and delivery, travel expenses. Mellon endeavors to maintain such charges (both internal and external) at competitive rates and out-of-pocket costs will be billed at cost. | |||
| (vi) With respect to any mailings processed by Mellon, Atlantic Coast shall be charged postage as an out-of-pocket expense at postage rates that may not reflect all available or utilized postal discounts, such as presort or NCOA discounts. Atlantic Coast shall, at least one business day prior to mail date, provide immediately available funds sufficient to cover all postage due on such mailing. Any material mailing schedule changes, including, but not limited to, delays in delivering materials to Mellon or changes in a mailing commencement date, may result in additional fees and/or expenses. |
(b) The parties may agree, at a later date, for MIS to provide to Atlantic Coast services
which will be in addition to those set forth on Appendix A for additional fees to be
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mutually agreed upon at such time. With respect to the performance of any such additional
services (“Additional Services”), the parties will execute an authorization letter, which shall be
signed by duly authorized officers of Atlantic Coast and the Agent, setting forth a description of
the services to be rendered by the Agent, and the additional fees to be paid by Atlantic Coast to
the Agent for such service. Upon such execution, such authorization letter shall become an
amendment to this Agreement and, to the extent not inconsistent with the authorization letter,
subject to the terms and conditions of this Agreement.
Section 3. Duties of the Agent.
(a) The Agent hereby agrees to perform the services for Atlantic Coast as set forth in
Appendix A (the “Services”) attached hereto and made a part hereof. The Agent agrees to
perform the Services hereunder in a commercially reasonable manner. The Agent will use commercially
reasonable efforts to comply with all timely, appropriate and lawful instructions received from
previously identified duly authorized representatives of Atlantic Coast consistent with the
Services; provided, however, the Agent makes no warranties regarding the rendering of the Services,
and no additional warranties may be implied from the terms of this Agreement. Atlantic Coast will
promptly provide to the Agent all information that it may reasonably request in order to permit the
Agent to perform the Services required to be performed by the Agent hereunder. In addition,
Atlantic Coast will: (i) inform all of its Issuance advisors that the Agent shall act as the
exclusive data processing agent in the Issuance and that they are authorized and directed to
communicate with the Agent and to provide the Agent with all information that it may reasonably
request; (ii) cause the Agent to have adequate notice of and permit the Agent to attend meetings
(whether in person or by conference telephone, Internet or video) relating to the Issuance where
the Agent’s attendance is, in the discretion of the Agent, relevant, advisable or necessary; (iii)
cause the Agent to receive, as they become available, copies of the significant documents relating
to the Plan or the Issuance, to the extent the Agent believes that such documents are necessary or
appropriate for the Agent to perform its Services; and (iv) cause the Agent to have adequate
advance notice of any proposed changes to the Plan, Issuance or its proposed Services as set forth
on Appendix A. Failure by Atlantic Coast to keep the Agent timely and adequately informed
shall excuse the Agent’s delay in the performance of its Services and may be grounds for the Agent
to terminate this Agreement pursuant to Section 4 hereof. ▇▇▇▇ ▇▇▇▇▇▇▇ will manage the project.
(b)(i) The actions to be taken by the Agent hereunder are deemed by the parties to be
ministerial only and not discretionary, and Atlantic Coast shall have the sole responsibility to
make any and all decisions with respect to the Plan and the Issuance, including but not limited to
decisions as to who is an Eligible Member, the address of any Eligible Member, and other matters
set forth in the Plan. The Agent shall not be called upon at any time to give any advice to any
person or entity regarding the Issuance or the Plan. The Agent shall safe keep any monies it may
receive (the “Funds”) and exercise such care there over as it does over its own assets, but no less
than a prudent person would exercise under the circumstances.
(ii) Atlantic Coast may designate one or more persons to deal with the Agent and the Agent may
rely upon the instructions and representations (whether oral or in writing) of such persons without
further inquiry or investigation. The Agent shall not be responsible for any
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action taken in reliance upon any signature, endorsement, assignment, certificate, order,
request, notice or instruction (whether written or oral), or other instrument or document
reasonably believed by it to be valid, genuine and sufficient in carrying out its duties hereunder.
The Agent shall not be liable or responsible, and shall be fully authorized and protected for,
acting or failing to act in accordance with any oral instructions or requests. The Agent may
consult with legal counsel chosen in good faith at the expense of Atlantic Coast as to any matter
relating to this Agreement, and the Agent shall not incur any liability in acting in good faith in
accordance with any advice from such counsel or in relying in good faith upon the Agent’s
determinations as to questions of fact.
(c) MIS may subcontract for the provision of the Services to be rendered hereunder with any
one or more of its affiliates or with any other party without the prior written consent of Atlantic
Coast. The fees and expenses of such subcontractor shall be in accordance with Appendix B
and billed to Atlantic Coast and paid directly to such subcontractor by the Agent, unless otherwise
agreed to by the parties hereto in writing. Any subcontractor retained by the Agent shall agree to
comply with the provisions of this Agreement relating to Confidentiality (Section 5) and Process
(Section 6).
(d) Neither the Agent nor any of its directors, managers, officers, employees, affiliates,
subsidiaries, agents or contractors nor any of their respective controlling persons, heirs,
representatives, estates, successors and assigns shall be liable, directly or indirectly, for any
losses, claims, judgments, damages or expenses suffered or incurred by Atlantic Coast, or any
person claiming through it, arising out of or relating to the services provided under this
Agreement, other than for, subject to Section 3(e) below, direct damages or expenses directly
related to the gross negligence or willful misconduct of the Agent as finally and specifically
determined by a court of competent jurisdiction. Moreover, MIS shall not be responsible nor liable
for delays, errors or omissions arising from, relating to or made in connection with circumstances
beyond its reasonable control, including but not limited to, acts or omissions of Atlantic Coast,
its parent company or any of their advisors, acts of governmental authorities, acts of civil
commotion or riot, insurrection, acts of military authority, war or acts of war or terrorism,
national emergencies, labor difficulties, fire, flood, weather-related problems, acts of God or
nature, mechanical or electrical breakdown, computer problems, failure or unavailability of the
Federal Reserve Bank wire, facsimile, internet, telex, or other transaction, communications or
power supply, a declaration of a banking moratorium or any suspension of payments in respect of
banks, any change in the prevailing market rate of interests or currency exchange rates or any
interruption in the financial markets in the United States of America or elsewhere, or any change
in law or regulation affecting the Agent or Atlantic Coast.
(e) The Agent shall not be liable for any action taken, suffered, or omitted by it or for any
error or judgment made by it in the performance of its duties under this Agreement, except for acts
or omissions directly relating to the Agent’s gross negligence or willful misconduct as finally and
specifically determined by a court of competent jurisdiction. In no event shall the Agent be
liable for: (i) acting in accordance with or relying upon any instruction, request, notice, demand,
certificate, order or document from Atlantic Coast or any authorized person or entity acting on its
behalf, or (ii) for any consequential, indirect, incidental, punitive, exemplary or special damages
of any kind whatsoever (including but not limited to lost profits) even if MIS
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has been advised of the possibility of such damages. Any liability of the Agent shall be
limited to the amount of fees paid to the Agent hereunder by Atlantic Coast.
(f) The duties, responsibilities and obligations of the Agent shall be limited to those
expressly set forth herein and no duties, responsibilities or obligations shall be inferred or
implied. The Agent shall not be subject to, nor required to comply with, any other agreement
between or among any or all of the parties hereto and/or any other person or entity, even though
reference thereto may be made herein or therein, or to comply with any direction or instruction
(other than those contained herein or delivered in accordance with this Agreement) from any person
or entity other than Atlantic Coast. Except as may otherwise be set forth herein, the Agent shall
not be required to, and shall not, expend or risk any of its own funds or otherwise incur any
financial liability in the performance of its duties hereunder.
(g) The parties hereto acknowledge that there are no third party beneficiaries to this
Agreement. This Agreement is for the exclusive benefit of the parties hereto and neither the
Eligible Members, nor any other person or entity or their respective heirs, successors and assigns
shall be deemed to have any legal or equitable right, remedy or claim hereto.
(h) In the event of any ambiguity or uncertainty hereunder or in any notice, instruction or
other communication received by the Agent hereunder, the Agent may, in its sole discretion, refrain
from taking any action unless and until the Agent receives written instructions from Atlantic Coast
clarifying the ambiguity or uncertainty and the Agent shall not be liable for the failure to take
any action during this period. In the event of any disagreement between Atlantic Coast and any
other person or entity resulting in adverse claims and demands being made herein or affected
hereby, the Agent shall be entitled to refuse to comply with any such claims or demands as long as
such disagreement may continue, and in so refusing, shall make no delivery or other disposition
under this Agreement or otherwise in the possession of the Agent, and in so doing shall be entitled
to continue to refrain from acting until: (i) the right of adverse claimants shall have been
finally settled by binding arbitration or finally adjudicated in a court of competent jurisdiction,
or (ii) all differences shall have been settled by agreement among the adverse claimants and
Atlantic Coast or other persons or entities and the Agent shall have been notified in writing of
such agreement signed by Atlantic Coast and the adverse person(s) or entity(ies). In the event of
such disagreement, the Agent may, but need not, tender into the registry or custody of any court of
competent jurisdiction all money or property in the Agent’s possession pursuant to the terms of
this Agreement, together with such legal proceedings as the Agent deems appropriate, and thereupon
the Agent shall be discharged from all further duties under this Agreement. The filing of any such
legal proceeding shall not deprive the Agent of compensation or expenses payable hereunder for
services actually performed and the Agent shall not be liable with respect to any suspension of
performance, delay or otherwise as a result of the tendering of such money or property into the
court. The Agent shall have no obligation to take any legal action in connection with this
Agreement or towards its enforcement, or to appear in, prosecute or defend any action or legal
proceeding which would or might involve the Agent in any cost, expense, loss or liability unless
indemnification, satisfactory to the Agent, in its sole discretion, shall be furnished by Atlantic
Coast. The Agent shall be indemnified for all reasonable costs (including employee time at the
employee’s hourly rate determined by his annual salary) and attorneys’ fees and expenses in
connection with any such action.
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Section 4. Commencement and Termination of this Agreement. This Agreement shall
commence immediately upon execution hereof by all parties and shall continue in force until the
earlier of the completion or termination of the Issuance pursuant to the Plan or the termination of
this Agreement hereunder. This Agreement may only be terminated by Atlantic Coast in the event of
the completion or a termination of the Issuance, or action by MIS constituting a material violation
of applicable law or a material breach of this Agreement, which breach remains uncured for seven
(7) days after written notice of such breach is delivered by Atlantic Coast to MIS. This Agreement
may only be terminated by MIS in the event of a material violation of applicable law, a material
breach of this Agreement by Atlantic Coast, which breach (which shall include the failure to
provide MIS with adequate and timely information as required by Section 3(a) hereof or the failure
to pay the fees and expenses of MIS as required by Section 2 hereof) remains uncured for seven (7 )
days after written notice of breach is delivered by MIS to Atlantic Coast or any proceeding in
bankruptcy, reorganization, rehabilitation, guaranty fund action, receivership or insolvency is
commenced by or against Atlantic Coast, Atlantic Coast shall become insolvent, or cease paying its
obligations as they become due, or either the Sponsor or the Insurer makes an assignment for the
benefit of creditors. At the written request of Atlantic Coast, upon termination of this
Agreement, provided that the Agent has been paid in full pursuant to Section 2 hereof, the Agent
shall use its reasonable efforts to transfer all of Atlantic Coast’s data and documentation
relating to the Issuance and the Plan (except for Agent and/or Third Party Software, the Agent’s
business processes, and other data and documentation which is proprietary to the Agent) to Atlantic
Coast or the substitute data processing agent selected by Atlantic Coast at Atlantic Coast’s
expense (including Agent employee time).
Section 5. Confidentiality. The parties hereto will: (a) hold, and will cause their
respective employees, officers, directors, consultants, and advisors to hold, in strict confidence,
unless compelled to disclose by judicial or administrative process and then only with written
notice prior to disclosure to the disclosing party, all documents and information concerning the
disclosing party furnished to the receiving party in connection with the transactions contemplated
by this Agreement (including any information about this Agreement, the services to be rendered
hereunder and the fees and expenses to be paid hereunder) (except to the extent that such
information can be shown to have been (i) previously known by the receiving party other than
through a breach of a confidentiality agreement by a third party; (ii) in the public domain through
no fault of the receiving party; or (iii) later lawfully acquired by the receiving party from other
sources) (the “Confidential Information”), (b) will not use such Confidential Information except
for the purposes set forth herein, and (c) will not release or disclose the Confidential
Information to any other person, except the receiving party’s attorneys or advisors being utilized
in connection with the performance of the receiving party’s duties hereunder (it being understood
that such persons shall be informed by the receiving party of the confidential nature of such
information and shall be directed by the receiving party to treat such information confidentially).
If requested by the disclosing party, the receiving party will return to the disclosing party or
destroy (and will provide to the disclosing party a certificate of destruction executed by an
authorized officer) all physical or electronic materials furnished by the disclosing party to the
receiving party or their respective agents, representatives or advisors and all copies thereof, in
whatever medium, and all materials prepared by the receiving party which evaluate or reflect the
Confidential Information to the extent such materials do not constitute proprietary data or
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documentation of the receiving party. It is understood by the parties hereto that the
receiving party shall be deemed to have satisfied its obligation to hold the Confidential
Information confidential if it exercises the same care as it takes to preserve the confidentiality
of its own similar information.
Section 6. Process. If at any time the Agent is served with any judicial or
administrative order, judgment, decree, motion, writ, or other form of judicial or administrative
process which in any way affects any property of Atlantic Coast or of any Eligible Members or any
Funds (including but not limited to orders of attachment or garnishment or other forms of levy or
injunctions or stays relating to the transfer of any Funds), the Agent is authorized to comply
therewith in any reasonable manner as it or its legal counsel of its own choosing deems
appropriate; provided that the Agent shall give prompt notice thereof to Atlantic Coast. If the
Agent complies with any such judicial or administrative order, judgment, decree, writ or other form
of judicial or administrative process, the Agent shall not be liable to any of the parties, or to
any other person or entity, even though such order, judgment, decree, writ or process may be
subsequently modified or vacated or otherwise determined to have been without legal force or
effect.
Section 7. Indemnification. Atlantic Coast hereby agrees to indemnify and hold
harmless the Agent, its directors, managers, officers, employees, affiliates, subsidiaries, agents,
contractors and each of their controlling persons, if any (within the meaning of Section 15 or
Section 20(a) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), and their
respective heirs, representatives, successors and assigns (together, the “Agent Group”) against any
loss, liability, claim or expense (“Loss”), joint or several, to which the Agent Group may become
subject, under any federal or state law or regulation, at common law, in equity or otherwise,
insofar as such Loss (or actions in respect thereof) arises out of or is based on or is in
connection with or is related to the Plan, the Issuance, or the terms or conditions of this
Agreement, except to the extent the Agent is finally found, by a court of competent jurisdiction,
to have engaged in willful misconduct or gross negligence. Atlantic Coast agrees to advance or
reimburse the Agent Group (or any one or more of them) within fifteen (15) Business Days of a
written request therefor in connection with investigating, preparing or defending against any such
loss, claim, damage, liability or action by the Agent Group (or any one or more of them). The
indemnification obligations of Atlantic Coast as provided above are in addition to any liabilities
that Atlantic Coast may have under other agreements, under common law or otherwise. It is
understood and agreed that, although the Agent may have consented to descriptions regarding its
duties in the Issuance documents of Atlantic Coast, all such documents (including without
limitation, all registration statements, change of control applications, prospectuses, sales
literature, advertisements and other such documents, as amended or supplemented) shall be the
documents of Atlantic Coast, and the Agent shall not be responsible for the disclosure or lack of
disclosure or the statements or omissions contained therein. The above indemnity shall expressly
include, but not be limited to, all liabilities under the Statute, the Securities Act of 1933, as
amended, the Exchange Act and any similar state insurance or securities laws and regulations.
Section 8. Representations of Atlantic Coast. Atlantic Coast represents and
warrants to the Agent that: (a) it is duly incorporated, validly existing and in good standing
under the laws of its jurisdiction of incorporation; (b) it has the full corporate power, authority
and legal right to
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execute, deliver and perform this Agreement; (c) the consummation of the Plan and the
performance of all transactions contemplated thereby (including, without limitation, the execution,
delivery and performance of this Agreement) have been duly authorized by all necessary corporate
actions and will not result in a breach of or constitute a default under: (i) its articles or
certificate of incorporation or bylaws; (ii) any indenture, agreement or instrument to which it is
a party or is bound; (iii) any existing law, ordinance, or governmental rule or regulation to which
it is subject; or (iv) any judgment, order, writ, injunction, decree or award of any court,
arbitrator or governmental or regulatory official, body or authority which is applicable to
Atlantic Coast; (d) this Agreement has been duly executed and delivered by Atlantic Coast and
(assuming its due execution and delivery by the Agent) constitutes the legal, valid and binding
obligations of Atlantic Coast, enforceable against Atlantic Coast in accordance with its terms; (e)
the Plan will comply in all material respects with all applicable requirements of law; and (f)
there is no action, claim or proceeding, pending or threatened, as of the date hereof, relating to
the Plan or affecting in any way the performance of this Agreement by Atlantic Coast.
Section 9. Representations of the Agent. The Agent represents and warrants to
Atlantic Coast that: (a) it is a New Jersey limited liability company, duly organized and in
existence under the laws of the State of New Jersey and has full power and authority under such
laws to execute, deliver and perform this Agreement; (b) the execution, delivery and performance of
this Agreement by the Agent has been duly authorized by all necessary limited liability company
action and will not result in a breach of, or constitute a default under: (i) the Agent’s Articles
of Formation or Operating Agreement; (ii) any material indenture, agreement or instrument to which
the Agent is a party or is bound; (iii) any existing law, ordinance or governmental rule or
regulation known to the Agent to which the Agent is subject; or (iv) any judgment, order, writ,
injunction, decree or award of any court, arbitrator or governmental or regulatory official, body
or authority which is applicable to the Agent; and (c) this Agreement has been duly executed and
delivered by the Agent and (assuming its due execution and delivery by Atlantic Coast) constitutes
the legal, valid and binding obligation of the Agent, enforceable against the Agent in accordance
with its terms.
Section 10. Survival of Obligations. The covenants and agreements of the parties
hereto will remain in full force and effect and will survive the closing of the Issuance and the
termination of this Agreement, and the Agent Group shall be entitled to the benefit of the
covenants and agreements thereafter.
Section 11. Disputes. (a) In the event of any dispute or disagreement between the
parties to this Agreement with respect to the interpretation of any provision of this Agreement or
the performance of the Agent or Atlantic Coast under this Agreement, upon the written request of
either party, the parties’ respective project managers, or a designated representative of either of
them, will meet for the purpose of resolving such dispute or negotiating an adjustment or
modification to such provision of the Agreement. Atlantic Coast and Agent project managers or
designated representatives shall meet as often as the parties reasonably deem necessary in order to
furnish to the other all information with respect to the matter in issue which the parties believe
to be appropriate and germane in connection with its resolution. Atlantic Coast and Agent project
managers or designated representatives will discuss the problem and negotiate in good faith without
the necessity of any formal proceeding relating thereto. During the course of such
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negotiation, all reasonable requests made by one party to the other for information will be
honored in order that each of the parties may be fully advised in the premises. The specific
format for such discussion will be left to the discretion of Atlantic Coast and Agent project
managers or designated representatives but may include the preparation of agreed upon statements of
fact or written statements of position furnished to the other party. In the event the project
managers or their designated representatives are unable to amicably resolve the dispute within ten
(10) Business Days, the formal proceedings for the resolution of such dispute in accordance with
Section 11(b) hereof shall be commenced.
(b) Any dispute relating to this Agreement which cannot be resolved by the respective project
managers or their designated representatives pursuant to Section 11(a) hereof shall be referred to
Atlantic Coast and Agent senior officers or their designated representatives for resolution.
Without prejudice to the parties’ ability to mutually agree upon mediation, arbitration, or any
other alternative dispute resolution process with respect to the dispute, no litigation or other
formal proceeding for the resolution of such dispute may be commenced until either party’s senior
officer concludes in good faith that amicable resolution of the dispute through continued
negotiation does not appear likely.
Section 12. Notices. Except as otherwise contemplated by this Agreement, all notices,
demands, requests or other communications which may be or are required to be given, served or sent
by any party to any other party pursuant to this Agreement, other than in the normal course of
conducting the activities in Appendix A, shall be in writing and shall be mailed by
first-class, registered or certified mail, return receipt requested, postage prepaid, or
transmitted by hand delivery (including delivery by overnight courier), or by facsimile
transmission (confirmed by voice), addressed as follows:
| (a) | If to the Agent: | ||
| Mellon Investor Services LLC ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Attn: Jaddiel ▇▇▇▇▇ Telephone: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇ |
|||
| With a copy to: | |||
| Mellon Investor Services LLC ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Attn: General Counsel Telephone: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇ |
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| If to Atlantic Coast: | |||
| Atlantic Coast Bank | |||
| ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ | |||
| ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ | |||
| Atten: ▇▇▇ ▇▇▇▇▇▇, COO | |||
| Telephone: ▇▇▇-▇▇▇-▇▇▇▇ |
Each party may designate by notice in writing a new address to which any notice, demand,
request or communication may thereafter be so given, served or sent. Each notice, demand, request
or communication which shall be mailed, delivered or transmitted in the manner described above
shall be deemed sufficiently given, served, sent and received for all purposes at such time as it
is delivered to the addressee (with the return receipt as the delivery receipt, the signature of
the recipient by overnight courier or (with respect to a facsimile) the voice confirmation being
deemed conclusive (but not exclusive) evidence of such delivery) or at such time as delivery is
refused by the addressee, upon presentation. The Agent shall not be charged with knowledge of any
fact, including but not limited to the performance or non-performance of any condition, unless the
Agent has actual knowledge of such fact at the time in question or shall have actually received
written notice thereof from Atlantic Coast clearly referring to this Agreement. Whenever under the
terms hereof the time for giving a notice, demand, request or communication falls on a non-Business
Day, such time shall be extended to the next Business Day.
Section 13. Agreement.
(a) This Agreement contains the entire agreement of the parties with respect to the subject
matter hereof. This Agreement supersedes any other agreements, either oral or written, among the
parties hereto. Each party hereto acknowledges that no representation, inducement, promise or
agreement, written, oral or otherwise, has been made by any party, or anyone acting on behalf of
any party, which is not embodied or expressly stated herein, and that no other agreement,
statement, or promise not contained in this Agreement shall be valid or binding.
(b) This Agreement may be enforced only by the parties hereto and shall be interpreted,
construed, enforced and administered in accordance with the internal substantive laws (and not the
choice of law rules) of the State of New Jersey. Each of the parties hereto hereby submits to the
personal jurisdiction of, and each agrees that all proceedings relating hereto shall be brought in,
courts located within the State of New Jersey. Each of the parties hereto hereby waives the right
to a trial by a jury. To the extent that in any jurisdiction any party
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hereto may be entitled to claim, for itself or its assets, immunity from suit, execution,
attachment (whether before or after judgment) or other legal process, each hereby irrevocably
agrees not to claim, and hereby waives, such immunity. Each party hereto waives personal service of
process and consents to service of process by certified or registered mail, return receipt
requested, directed to it at the address last specified for notices hereunder.
(c) This Agreement may be executed in several counterparts, which taken together, shall
constitute one and the same document. All section headings used herein are for convenience and ease
of reference only and do not constitute part of this Agreement and shall not be referred to for the
purpose of defining, interpreting, construing or enforcing any of the provisions of this Agreement.
All pronouns and variations thereof shall be deemed to refer to the masculine, feminine, neuter,
singular or plural, as the identity of the party or parties to this Agreement may require.
(d) This Agreement may not be assigned by any party without the prior written consent of the
other parties hereto and any purported assignment made in violation of the foregoing shall be void
and have no legal effect; except that consent is not required for an assignment to an MIS
affiliate. This Agreement may be modified only by a written amendment signed by all of the parties
hereto and no waiver of any provision hereof shall be effective unless expressed in a writing
signed by the party to be charged. No waiver of the breach of any provision or term of this
Agreement shall be deemed or construed to be a waiver of any other or subsequent breach.
(e) No implied duties or obligations shall be read into this Agreement against the Agent and
the Agent, in its capacity as such, shall not be bound by any provision of any agreement between
Atlantic Coast and any other person or entity other than this Agreement, and the Agent shall have
no duty to inquire into, or to take into account its knowledge of, the terms and conditions of any
agreement made or entered into in connection with this Agreement.
(f) Should any term or provision, or portion of such provision, of this Agreement be invalid
or unenforceable because the scope thereof or the period covered thereby or otherwise, such term,
provision, or portion of such provision, shall be deemed to be reduced and limited to enable MIS or
Atlantic Coast, as applicable, to enforce it to the maximum extent permissible under the laws and
public policies applied under the jurisdiction in which enforcement is sought. If any term or
provision of this Agreement is held or deemed to be invalid or unenforceable, in whole or in part,
by a court of competent jurisdiction, such term or provision shall be ineffective to the extent of
such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms
and provisions of this Agreement which shall be construed to preserve, to the maximum extent
permissible, the intent and purposes of this Agreement. Any such invalidity or unenforceability in
any jurisdiction shall not invalidate or render unenforceable such terms or provisions in any other
jurisdiction.
(g) The Agent, in furnishing services to Atlantic Coast under this Agreement, is acting only
as an independent contractor. The Agent does not undertake by this Agreement or otherwise to
perform any obligation of Atlantic Coast, whether regulatory or contractual. The Agent has the
sole right and obligation to supervise, manage, contract, direct, procure, perform
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or cause to be performed, all work to be performed by the Agent under this Agreement unless
otherwise provided in this Agreement. Atlantic Coast understands and agrees that the Agent may
perform services substantially similar to those to be performed hereunder for others and nothing
herein is intended to restrict or prohibit the Agent from performing such services for others. The
parties each agree that, during the term of this Agreement and for three (3) years thereafter,
neither party shall, except with the prior consent of the other, offer employment to or employ any
person employed then or within the preceding twelve months by the other.
(h) All media releases, public announcements and public disclosures by either party or its
employees or agents relating to this Agreement or the subject matter of this Agreement, including
without limitation promotional or marketing material, but not including any announcement intended
solely for internal distribution at such party or any disclosure required by legal, accounting or
regulatory requirements beyond the reasonable control of such party, shall be coordinated with and
approved by the other party prior to the release thereof, which approval shall not be unreasonably
withheld.
(i) The parties shall abide by a standard of good faith and fair dealing in all aspects of
their business relationship and dealings with each other, including with respect to the performance
of their respective obligations and the exercise of their respective rights under this Agreement.
[The remainder of this page has been intentionally left blank. Signature page follows.]
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If the foregoing is in accordance with your understanding of our agreement, please sign and return
to us the enclosed copy of this Agreement, whereupon it will become a binding contract among the
parties hereto in accordance with its terms.
| Sincerely, Atlantic Coast Bank |
||||
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Title: | Chief Operating Officer | |||
The
foregoing Agreement is hereby agreed and accepted as of the 13th day
of June 2007.
| MELLON INVESTOR SERVICES LLC | ||||
By: |
/s/ Jaddiel ▇▇▇▇▇ | |||
Name:
|
||||
Title:
|
Event Manager, Corporate Actions | |||
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APPENDIX A
Services
| § | Borrowers will not be permitted to participate in the subscription. |
| § | Mellon will receive files in an agreed upon file layout / format. |
| § | Mellon will consolidate “like” accounts and further perform a household sort. |
| § | A financial printer will print the information on the proxy / stock order forms and deliver to the customer’s name and address record. |
| § | Mellon will receive stock orders periodically and will data enter them into our S&L system and provide hardcopy reports and an excel spreadsheet file to the client. |
| § | Mellon will receive proxy cards daily and will tabulate and report the vote. |
| § | Mellon will provide telephone and Internet capability for voting proxies |
| § | Mellon will produce two proxygram files upon request. |
| § | Mellon will deliver stock order records to the Transfer Agent. |
| § | Mellon will provide an account withdrawal file for debiting depositor accounts. |
| § | Mellon will send acknowledgement letters to depositors who have purchased stock. |
| § | Mellon will provide refund/interest records to Atlantic Coast Bank to print and mail the checks or Mellon will print and mail the checks and provide tax-reporting services at year-end at a fee to be determined. |
| § | Mellon will create a Folio View CD with depositor details for inquiry by the client. |
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APPENDIX B
MELLON INVESTOR SERVICES LLC
Schedule of Fees
As Data Processing Agent
For Atlantic Coast Bank
MELLON INVESTOR SERVICES LLC
Schedule of Fees
As Data Processing Agent
For Atlantic Coast Bank
Minimum Fee |
$46,000.00 | |||
Includes Management and set-up fee |
||||
Exclusive of Special Services and out of pocket expenses |
||||
Conversion of files, per depositor |
Included | |||
Processing Fee Stock Orders, each |
Included | |||
Proxy Tabulation, each |
Included | |||
Folio View CD |
Included | |||
Account Withdrawal file |
Included | |||
Certificate Issuance file |
Included | |||
Special Services (if required) |
||||
* Pro-ration (over subscription) |
$8.00 per stock order | |||
* Resolicitation of stock orders |
$8.00 each stock order | |||
* More than two Proxygram prep files |
$750.00 each file over Two | |||
* Telephone Number Research File |
$.50 per number (subject to a $500 minimum) | |||
* Attorney Review of Agreement (if there are
significant variations on the standard language) |
$1,000.00 | |||
* Programming Costs |
$250/hour for special services | |||
* Additional Special Services |
By Appraisal | |||
Out of Pocket Expenses |
Additional | |||
Including Postage, Printing, Stationery,
Overtime, Transportation. |
||||
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