Exhibit 10.41
BRANCH PURCHASE AND DEPOSIT ASSUMPTION AGREEMENT
THIS BRANCH PURCHASE AND DEPOSIT ASSUMPTION AGREEMENT (the "Agreement")
is made and entered into as of this 30th day of January, 2004 (the "Agreement
Date"), among the following parties (the "Parties"):
1) Matrix Capital Bank, a federal savings bank organized under
the laws of the United States of America (the "Seller"); and
2) FIRSTBANK, a federal savings bank organized under the laws of
the United States of America ("FIRSTBANK" or "Purchaser").
W I T N E S S E T H
WHEREAS, Purchaser desires to purchase certain of the assets and to
assume certain of the deposit and other liabilities of Seller's branch office
facilities located in Las Cruces, New Mexico and Seller desires to sell such
assets and to have such liabilities assumed;
NOW THEREFORE, in consideration of the mutual promises and conditions
herein set forth, the parties hereto agree as follows:
Section 1. Definitions: For the purpose of this Agreement, the terms
defined in this Section 1 shall have the meanings assigned to them herein:
"Adjustment Date" means the fifth Business Day after the end of the
first full calendar month following the Closing Date.
"Branch or Branches" means (as the context requires) 1) the Branch
Premises, 2) Seller's core banking activities and the assets specifically
described in this Agreement arising from, accounted for on the books of, or
relating most directly to, the Branch Premises as distinguished from the
operation of Seller's other locations (whether or not related documents are
maintained or accounting entries are made at the Branch Premises), or 3) both of
the foregoing.
"Branch Premises" means (collectively or individually, as the context
requires) 1) Seller's full-service banking facilities located at 277 ▇. ▇▇▇▇▇▇
and Annex and ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇ County, New Mexico
and the lessor's interest in the Leases at the facilities more particularly
described in Schedule 6.06, and 2) Seller's Automated Teller Machine located in
leased facilities at Picacho Hills Country Club, 6861 ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇.
"Business Day" means any day excluding Saturday, Sunday and any day
which is a legal holiday under the laws of the State of New Mexico, or is a day
on which banking institutions located in New Mexico are authorized or required
by law or other governmental action to close.
"Deposit" or "Deposits" shall have the meaning set forth in Section
3(1) of the Federal Deposit Insurance Act, 12 U.S.C. 1813(1), including, without
limitation, and as further defined in Section 3.01, all uncollected items
included in the depositors' balances and credited on the books of the Seller at
the Determination Date.
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"Determination Date" means the Seller's close of business on the last
Business Day preceding the Closing Date. (The daily statement of Seller's
Branches reflecting the amounts of various assets and liabilities as of the
close of business on the Determination Date on a full accrual basis shall
determine with respect to certain items the exact balance being transferred to
Purchaser, as more specifically set out below).
"Equipment" means those improvements, additions, alterations and
installations constituting all or a part of the Branch Premises, on and after
the Agreement Date, including, without limitation, the automated teller machines
presently in use at or in connection with the Branches, artwork, carpeting,
furniture, shelving, and office supplies (other than office supplies with
Seller's name or trademark), all as more specifically described on Schedule
6.06. As specified in Section 6.06, Schedule 6.06 hereto shall be delivered by
Seller to Purchaser on or before the 10th calendar day following the Agreement
Date.
"Fixtures" means those improvements, additions, alterations and
installations constituting all or a part of the Branch Premises on and after the
Agreement Date, all as more specifically described on Schedule 6.06.
"Furniture" means those improvements, additions, alterations and
installations constituting all or a part of the Branch Premises on and after the
Agreement Date, all as more specifically described on Schedule 6.06.
"Leases" means the real property leases entered into between Seller and
the tenants at the Branch Premises specifically described on Schedule 4.06.
"Loans" means all of the loans included in the books and records of
Seller which were originated by the Branches.
`Transferred Loan" is defined in Section 2.03.
"Loan Discount" shall have the meaning set forth in Section 2.03.
"Real Estate Properties" means the real estate and improvements located
in Las Cruces, New Mexico at 277 ▇. ▇▇▇▇▇▇ and Annex and ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, all as more specifically described in Exhibit A hereto.
"Contracts" have the meaning given them in Section 4.04.
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Section 2. Purchase and Sale of Assets.
2.01 Assets to be Purchased - Purchase Price. Subject to the
terms and conditions provided here, Seller agrees to sell to Purchaser, and
Purchaser agrees to purchase the Real Estate Properties, the Leases, the
Furniture, the Fixtures, the Equipment, the Contracts, Cash on Hand at the
Branches, and the Transferred Loans (collectively, the "Assets") as they exist
on the Closing Date. The total purchase price for the Assets, subject to
adjustment on the Determination Date in accordance with Section 5.03, shall be
as follows ("Purchase Price"):
Assets Purchase Price
Leases and Furniture, $ 227,000
Fixtures and Equipment
Transferred Loans As set forth in Section 2.03.
Cash on Hand Face amount
Real Estate As set forth in Section 2.07
Purchase Premium Determined pursuant
to section 2.02
Contracts Assumption of the Contracts
as specified in Section 3.05
2.02 Calculation of Purchase Premium. The "Purchase Premium"
shall be determined by multiplying (A) the average of the daily total Deposits
at the Branches (but, for purposes of determining the Purchase Premium only,
excluding specifically from the definition of Deposits any brokered deposits,
municipal, state or public school deposits) during the twenty (20) calendar day
period immediately preceding the Determination Date times (B) 6.5% (as stated in
the letter of intent).
2.03 Purchase Price for Transferred Loan and Loan Discount.
The purchase price for each Transferred Loan (including, for purposes of this
Agreement, the Loan Discount described below, the "Transferred Loan Purchase
Price") shall be (A) 100% of the unpaid principal balance of each such
Transferred Loan on the Determination Date plus (B) accrued and unpaid interest
on such Transferred Loan through the Determination Date.; provided that, with
respect to each Transferred Loan, Seller shall provide Purchaser a discount (the
"Loan Discount") equal to (A) .75% multiplied by (B) the unpaid principal
balance of each such Transferred Loan as of the Determination Date. In no event
shall the Loan Discount with respect to all of the Transferred Loans be greater
than $170,000. The Loan Discount is to cover prior General Valuation Allowance
(GVA) for future losses established on the total of the Transferred Loans on the
books of the Seller to meet the requirements of Generally Accepted Accounting
Principles, and general and specific allowance requirements.
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2.04 Allocation of Purchase Price. The Purchase Price shall be
allocated to the Assets based upon the schedule set forth above. Purchaser and
Seller shall jointly participate in preparing Internal Revenue Service Form 8594
("Asset Acquisition Statement under Section 1060") to be filed by Purchaser to
reflect this allocation.
2.05 Acquisition of Loans. Purchaser has had the opportunity
to make an extensive examination of the credit files containing documentation
with respect to all of the Loans. At least ten (10) Business Days prior to the
Determination Date, Seller shall provide Purchaser with a list of all Loans and
Purchaser shall ▇▇▇▇ on such list all Loans which Purchaser desires to exclude
from the purchase on the Closing Date. All Loans so included in the purchase are
referred to herein as the "Transferred Loans" and each is referred to herein as
a "Transferred Loan." Thirty days after the Closing Date Purchaser may request
Seller to repurchase any Transferred Loan. Seller agrees to make such
repurchase, by wire transfer within two (2) business days following receipt of
Seller's request. The repurchase price for each such repurchased Transferred
Loan shall be equal to the Transferred Loan Purchase Price for the Transferred
Loan in question.
2.06 Acquisition of Real Estate. At Closing, Purchaser shall
purchase from Seller and Seller shall sell to Purchaser the Real Estate
Properties. The terms upon which such purchase and sale shall occur are set
forth in Exhibit A hereto.
2.07. Real Estate Purchase Price. The purchase price for the
Real Estate Properties shall be equal to the assessed value of
the properties as determined by the ▇▇▇▇ ▇▇▇ County Assessor
for year 2002, plus a premium of three and one half percent
(3.5%) of such assessed value, which equals an acquisition
price of:
(1) $ 2,215,521
------------------
(2) 353,763
------------------
Total $ 2,569,284
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Section 3. Assumption of Liabilities; No Assumption of Other
Liabilities.
3.01 Deposit Liabilities. Seller agrees to assign to
Purchaser, and Purchaser agrees to assume on the Determination Date all
obligations and liabilities of Seller to be performed, satisfied, and discharged
on and after the Determination Date with respect to Deposits carried on the
books of the Branches and existing at the Determination Date and owed to the
person, corporations and other entities (including Deposits held by Individual
Retirement Accounts) named as the respective depositors in the books of the
Branches at the Determination Date, including, without limitation, (a) all
demand deposits, but excluding outstanding cashier's checks, other official
checks of Seller, and (b) all time and savings deposits, including accrued and
unpaid interest thereon computed through the Determination Date, but excluding
any brokered certificates of deposits of Seller (the items included in (a) and
(b) above being collectively, the "Deposits"). The term "Deposits" shall not
include deposit accounts, if any, that, by law or contract, cannot either be
transferred by Seller or assumed by Purchaser. Seller also agrees to transfer to
Purchaser all signature cards, deposit contracts, canceled checks and other
records required to be retained related to the Deposits in the possession of
Seller.
3.02 Payment of Checks, Drafts and Orders. Purchaser agrees to
pay all properly payable checks, drafts and withdrawal orders presented to it by
mail, over its counters, or through clearing houses by depositors whose accounts
are carried on the books of the Branches, whether drawn on the check or draft
forms provided by Seller or by Purchaser, to the extent that the assumed
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balances of Deposits to the credit of the respective makers or drawers shall be
sufficient to permit the payment thereof, and in all other respects to
discharge, in the usual course of the banking business, the duties and
obligations of Seller with respect to the balances due and owing with respect to
the Deposits.
3.03 Interest on Accounts Assumed. Purchaser agrees to pay
interest on all interest bearing Deposits assumed by it in accordance with the
terms thereof at the declared rate established by Seller, subject to the
individual contracts relating to such Deposits and Purchaser's right to change
applicable interest rates as permitted or required by law.
3.04 Assumption of Leases. Purchaser shall assume and fully
discharge as they become due all liabilities and obligations arising after the
Determination Date under the Leases.
3.05 Assumption of Contracts. Purchaser shall assume and fully
discharge as they become due all liabilities and obligations arising after the
Determination Date under the Contracts.
3.06 No Other Liabilities Assumed. Purchaser shall not assume
any liabilities of Seller, or any kind or description, known or unknown,
disclosed or undisclosed, except for the liabilities described in this
Agreement. Those liabilities and obligations of Seller assumed by Purchaser
under this Agreement are referred to herein as the "Assumed Obligations" or
"Assumed Liabilities".
Section 4. Taxes; Pro-Rations and Reimbursements.
4.01 Sales Taxes. Purchaser shall pay and remit all sales
taxes or use taxes which, by law, become due and payable by reason of the
consummation of the transaction contemplated hereby.
4.02 Ad Valorem Taxes. Ad valorem taxes and personal property
taxes accruing or assessed with respect to the Assets for the calendar year
which includes the Closing Date shall be pro-rated between Purchaser and Seller
as of the Closing Date. If the amount of such taxes cannot be ascertained at
Closing, such pro-ration shall be done on the basis of taxes assessed for
calendar year 2003.
4.03 Utilities. The net actual payment necessary to pro-rate
utility bills (including without limitation monthly statements for electricity,
natural gas, water, sewer, trash collection and telephone) shall be made by
Purchaser or Seller, as applicable, on the Adjustment Date, but with the
pro-ration calculated as of the Closing Date.
4.04 Contracts. All equipment, maintenance, supplies and
material, and service agreements relating to the Branches ("Contracts") are
listed on Schedule 6.07. Seller shall assign to Purchaser, as of the Closing
Date, any of Seller's rights under the Contracts.
4.05 Leases. All payments under Leases shall be prorated as of
Closing Date.
4.06 Rental Income. Seller will assign all building leases
relating to the Real Estate Properties to Purchaser. All tenant deposits
covering such items as first and last months rentals plus any damage deposits
held in escrow will be assigned to the Purchaser. Schedule of tenant leases are
detailed in Schedule 4.06.
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4.07 Safe Deposit Boxes. Box income will be prorated to
Purchaser based on the Determination Date.
4.08 Employees.
(a) On the Closing Date, Purchaser shall offer
employment at the Branches to all employees of Seller
employed at the Branches at base wages and salaries no less favorable than the
wages and salaries currently being paid by Seller to such employees. To the
extent consistent with Purchaser's existing structure for comparable positions
and comparable officer titles and its current policies regarding officer titles,
such employees shall be offered positions with responsibilities and officer
titles comparable to those they currently have with Seller. All such employees
accepting employment with Purchaser are hereafter called the "Continuing
Employees". Purchaser shall cause all Continuing Employees to have the same
benefits provided by Purchaser generally to employees of Purchaser. Continuing
Employees will be provided with credit for time served with respect to
Purchaser's employee Profit Sharing and Employee Stock Ownership Plan. In
addition, Purchaser shall permit each Continuing Employee the option to obtain
past service credit for accrued vacation as of the Determination Date or to
accept payment from the Seller for such accrued vacation leave as of the
Determination Date (in which case, no past service credit shall be provided by
Purchaser to the Continuing Employee). In the event that a Continuing Employee
chooses to accept from Purchaser past service credit for his or her accrued
vacation as of the Determination Date, then Seller shall pay to Purchaser the
amount, plus applicable payroll taxes, that otherwise would have been payable to
such Continuing Employee had he or she chose to be paid for such accrued
vacation.
(b) Seller agrees that it shall render to Purchaser
commercially reasonable assistance in soliciting employees of the Branches to
accept employment with Purchaser, including but not limited to permitting
Purchaser to immediately contact and solicit such employees. Purchaser
acknowledges that Seller has made no assurances to Purchaser with respect to
such employees' accepting positions with Purchaser and incurs no liability to
Purchaser in rendering the assistance referred to herein.
(c) Purchaser shall have no liability to any of
Seller's current employees for any accrued wages, sick leave, vacation time,
pension obligations or any other employee benefits. Purchaser will have no
liability and will not assume obligations under any "employee benefit plan",
through the Closing Date (as such term is defined in the Employee Retirement
Security Act of 1974, as amended) of Seller or any other obligations (including,
without limitation, severance obligations) of Seller to the employees of the
Branches. Seller will be responsible for fulfilling, and resolving any disputes
concerning its liabilities or obligations (including, without limitation,
severance obligations) to the employees at the Branches under any such employee
benefit plan or otherwise. All wages and salaries, workers' compensation
payments, vacation pay and social security and unemployment taxes of employees
of the Branches shall be paid by Seller for the period to and including the
Determination Date. Seller affirms that there are no employment contracts with
any Continuing Employees in effect at Closing Date.
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Section 5. Closing.
5.01 Date of Closing. The closing of the transactions
contemplated hereby (the "Closing") shall take place at a mutually agreed time
and place on a Business Day within 30 days following the satisfaction (or
waiver, when appropriate) of all conditions, including the receipt of all
required regulatory approvals for the transactions provided for herein, and the
expiration of any statutory waiting periods applicable thereto. The date of
Closing is referred to herein as the "Closing Date". The effective time of the
Closing for the purpose of final calculation of balances of Assets transferred,
liabilities assumed, and Deposits and accrued interest thereon shall be as of
Seller's normal close of business on the Determination Date. Purchaser shall
take possession of the Branch Premises and shall open branch offices at the
Branch Premises effective at the normal closing of business on the Closing Date
notwithstanding the fact that the Closing may not be concluded until later that
day. Provided that the Closing is in fact consummated on the Closing Date, all
banking transactions occurring (deposits, withdrawals, receipt of loan payments,
accrual of interest, etc.) with respect to any Assets purchased or Deposits
assumed shall be treated (as between Purchaser and Seller) as having occurred
subsequently to the Closing and shall become part of the operations of the
Purchaser.
5.02 Actions of Parties at Closing.
(a) At Closing, Seller Shall:
(1) Execute and deliver to Purchaser in
recordable form an assignment of the Leases together with any required consents
and any assignments reasonably necessary in order to evidence the sale to
Purchaser, without recourse, of the Transferred Loans and any collateral
relating thereto;
(2) Execute and deliver to Purchaser such
bills of sale, endorsements, assignments and other instruments of transfer as
reasonably required in order to evidence ownership of the Assets in Purchaser,
together with any required consents;
(3) Deliver to Purchaser, all files,
documents, papers, agreements and other records pertaining to the Assets
transferred and the Assumed Liabilities;
(4) Deliver the Cash on Hand to Purchaser;
(5) Deliver physical possession of the
Branch Premises to Purchaser, including delivery of keys, security codes, etc;
(6) Pay to Purchaser by wire transfer in
same day funds a sum of money equal to the amount of the Deposits assumed by
Purchaser pursuant to Section 3 (including interest accrued through the
Determination Date) and execute, acknowledge and deliver to Purchaser all
certificates and other documents required to be delivered to Purchaser at the
Closing pursuant to the terms of this Agreement.
(b) At the Closing, Purchaser shall:
(1) Pay to Seller the Purchase Price;
(2) Execute, acknowledge and deliver to
Seller such instruments and documents as reasonably required to evidence
Purchaser's assumption of the Assumed Liabilities
(3) Execute, acknowledge and deliver to
Seller all certificates and other documents required to be delivered to Seller
at the Closing pursuant to the terms of this Agreement.
5.03 Adjustment Date: The payments which are required to be
made on the Closing Date shall be made pursuant to a preliminary settlement
statement agreed to by the parties, substantially in the form of Schedule 2.0
hereto. On the Adjustment Date, Seller and Purchaser shall make an adjusting
settlement between each other as of the Determination Date with regard to
pro-rations and other adjustments provided in this Agreement and with regard
to any errors, omissions or miscalculations with regard to amounts paid by
either party on the Closing Date or subsequently; notwithstanding the
foregoing, Purchaser and Seller shall make settlement with each other as often
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as each Business Day, if necessary, in order to reimburse the other party for
cashier's checks or customer checks presented to and paid by one party but
required to be paid by the other party pursuant to this Agreement.
Section 6. Representations and Warranties of Seller. Seller
represents and warrants to Purchaser as follows:
6.01 Organization of Seller. Seller is a federal savings bank
duly organized, validly existing under the laws of the United States and has all
requisite corporate power and authority and possesses all governmental and other
permits, licenses, approvals and other authorizations to own or lease its
properties and to carry on its business as now being conducted. Seller is an
insured bank as defined in the Federal Deposit Insurance Act and applicable
regulations thereunder.
6.02 Authority; Binding Effect. Seller has full right and
authority to enter into this Agreement and subject to receipt of any applicable
regulatory approvals, to perform its obligations hereunder. The execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby have been duly and validly authorized by the Board of Directors of Seller
and no other corporate acts or proceedings on the part of Seller are necessary
to authorize this Agreement or the transaction contemplated hereby; and this
Agreement constitutes the valid and legally binding obligation of Seller
enforceable against Seller in accordance with its terms. The execution and
delivery of this Agreement, the consummation of the transactions contemplated
hereby and the compliance by Seller with any of the provisions hereof will not
conflict with, result in a breach of, or entitle any party to terminate or call
a default with respect to any contract or instrument to which the Seller and the
Assets or liabilities assumed hereunder are subject.
6.03 Financial Records. All books and records of the Branches
have been (and will be as of the Closing Date) kept in accordance with generally
accepted accounting principles and in accordance with all applicable record
retention periods under federal or state law in all material respects and the
financial records of the Seller as of November 30, 2003 present fairly in all
material respects the financial position of the Branches and are complete,
current, and accurate in all material regards as of the date(s) so stated.
6.04 Liability and Obligations. At the Agreement Date, the
Branches had no obligation or liability, whether accrued, absolute, contingent
or otherwise, which was material to the financial condition, business or
obligations of the Branches or which when combined with all similar obligations
or liabilities, would have been material, which has not been reflected in the
Branches' financial records, or in the schedules referred to herein, nor does
there exist a set of circumstances resulting from transactions effected or
events occurring with respect to the Assets on or prior to the Agreement Date,
or from any action omitted to be taken during such period which, to the
knowledge of Seller, could reasonably be expected to result in any such material
obligation or liability, except as disclosed in the financial records or in the
schedules referred to herein.
6.05 Evidence of Indebtedness. Each note or other instrument
evidencing a Transferred Loan and any related security agreement or instruments
(including without limitation a guaranty or similar instrument) is (A) to the
knowledge of Seller, a legal, valid and binding obligation of the obligor named
therein, enforceable against such obligor in accordance with its terms (subject,
as to enforcement of remedies, to applicable bankruptcy, insolvency,
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reorganization, moratorium and similar laws from time to time in effect), (B)
has not been participated out to another lender, and (C) all actions necessary
to perfect any related security interest have been taken or will be taken by
Seller in a timely manner. To the best knowledge of Seller, no Transferred Loan
is subject to any defense, offset or counterclaim and each Transferred Loan
complies with all applicable laws and regulations known to Seller. To the
knowledge of Seller there are no valid claims for offset or other defense
(including, but not limited to usury) by any such obligor based on any action or
omission of Seller.
6.06 Physical Properties. Schedule 6.06, to be delivered by
Seller to Purchaser within ten (10) calendar days following the execution of
this Agreement, provides an itemized list of all items of Furniture, Fixtures,
Equipment, and other Assets owned by Seller and located at the Branches as of
the Agreement Date, except those items, if any, of Furniture, Fixtures and
Equipment listed in Schedule 6.06 which are not being acquired by Purchaser.
Seller owns each such item free and clear of all liens, pledges, security
interests, charges, burdens, encumbrances, options and adverse claims. The
operation of the property and business of Seller at the Branches in the manner
in which they were previously operated or are now operated does not, to the
knowledge of Seller, violate any existing or proposed environmental laws, zoning
ordinances, building codes or municipal regulations in such a way as could, if
such laws, ordinances or regulations were enforced, result in any material
impairment of the use of the Branches for the purpose for which they are now
operated. Seller is aware of no existing or contemplated condemnation
proceedings affecting or relating to the Branch premises and Seller has paid or
will pay in full all bills and invoices for labor and materials arising from the
ownership and operation of the Branch premises and such Branch premises shall be
in good operating condition and free of all liens and claims.
6.07. Agreements, Contracts and Commitments. Schedule 6.07 to
this Agreement lists specifically all Contracts to which Seller is a party or by
which Seller or any of the Assets is in any way affected or bound. All such
Contracts are legally valid and binding and in full force and effect, and
neither Seller nor, to the knowledge of Seller, any other party is in default
thereunder. None of the rights of Seller thereunder will be impaired by the
consummation of the transactions contemplated hereby.
6.08. Taxes.
(a) There are no tax liabilities of Seller that could
become payable by Purchaser as a result of the fact that Purchaser will be the
transferee of the Assets (except only ad valorem taxes, personal property taxes,
real estate taxes, which are not yet due and payable, and which are to be
prorated pursuant to Section 4.
(b) With respect to all interest bearing accounts
assigned to Purchaser, the records of Seller transferred to Purchaser contain or
will contain all information and documents (including without limitation
properly completed Forms W-9) necessary to comply in all material respects with
all information reporting and tax withholding requirements under federal and
state laws, rules and regulations, and such records identify with specificity
all accounts subject to backup withholding under the Internal Revenue Code.
(c) All federal, state, and local payroll,
withholding, property, sales, use and transfer taxes, if any, which are due and
payable by Seller relating to the operation of the Branches on or prior to the
Closing Date shall be paid in full or Seller shall have made appropriate
provision for such payment in accordance with ordinary business practices.
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6.09 Compliance with Laws. Seller is not in violation of any
law, statute, rule, governmental regulation or order, or court decree or
judgment which violation would reasonably be expected to have a material adverse
effect on the Assets, the liabilities to be assumed under this Agreement, or the
business and operations of the Branches.
6.10 Litigation or Other Proceedings. There is no suit, action
or legal, administrative, arbitration or other proceedings or governmental
investigation pending or threatened, which would reasonably be expected to have
a material adverse financial effect on Seller, the Assets, the liabilities
assumed or the business and operations of the Branches.
6.11 Inchoate Claims. Seller has no notice or knowledge of any
agreement, claim or controversy, relating to Seller either directly or
indirectly, which would reasonably be expected to result in a suit, action,
proceeding or other formal procedure against Seller relating to the Assets, the
liabilities assumed, or the business and operations of the Branches, nor
knowledge of any circumstances which might give rise to such claim or
controversy other than actions taken by Seller in the normal course of banking
business.
6.12 Broker's or Finder's Fee. There is no valid claim against
Seller by any broker or other third party for any finder's fee, brokerage
commission or other similar payment related to the transactions contemplated
hereby.
6.13 Insurance. Seller has in full force and effect policies
of insurance and fidelity bonds of type and in amounts that are customary in the
banking industry for an institution of comparable size and Seller will continue
all of such insurance and bonds in full force and effect and will give all
notices and present all claims thereunder in due and timely fashion up and to
the Closing Date.
6.14 Accident and Claims. There have been no accidents or
similar events relating to the Branches which have resulted, or may result, in
claims against Seller which are not either fully covered by insurance, or by
reserves, or other provisions created, or made, for such claims.
6.15 Employment Agreements. Seller is not a party to (i) any
written employment agreement, (ii) any oral or written management agreement
relating to the Real Estate Properties, or (iii) any oral employment agreement
with personnel of the Branches which cannot be terminated at the election of
Seller on not more than thirty (30) days notice.
6.16 Hazardous Substances. The Branches and the use and
operation of the Branches are in compliance with all federal, state or local
laws, ordinances or regulations relating to industrial hygiene and to the best
knowledge of the Seller the environmental conditions on, under or about the
Branches including without limitation air, soil, surface water and groundwater
conditions are in material compliance with all federal, state or local laws,
ordinances or regulations relating to environmental conditions. To the best
knowledge of Seller, there are no environmental, health or safety conditions on,
under or about the Branches, including without limitation the air, soil, surface
water and groundwater that would materially interfere with the conduct of the
business of the Branches or materially adversely affect the Branches, the
Assets, or the assumed liabilities. To the best of the knowledge of Seller,
neither Seller nor any third party, including, without limitation, Seller's
predecessors in title to the Branches, have used or installed any underground
tanks or gas or oil ▇▇▇▇▇, or used, generated, manufactured, treated, stored,
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placed, deposited, discharged, released or disposed of on, under or about the
Branches or transported to or from the Branches any Hazardous Substances (as
defined below). To the best knowledge of the Seller, the Branches have never
been used as a dump or landfill site, there are no asbestos-containing materials
in the Branches or incorporated into the improvements in violation of applicable
laws, there are and have been no polychlorinated biphenyl ("PCB")-containing
electrical transformer fluorescent light fixture with ballasts or other PCB
Item, as defined at 40 C.F.R. Section 761.3 or any PCB-containing fluid on the
Branches, or to the best knowledge of the Seller are there or have there ever
been any investigations, notices or violations, requests for information or
claims of any kind asserted or threatened to be asserted by any person,
including any federal, state or local governmental agency relating to the
storage, disposal, discharge or release of any Hazardous Substances. For
purposes of this Agreement, "Hazardous Substances" shall mean any flammable,
explosive, radioactive material, hazardous waste, toxic substance or related
material and any other substance or material defined or designated as a
hazardous or toxic substance, material or waste by any federal, state or local
law or environmental statute, regulation or ordinance presently in effect and
shall include, without limitation, (i) those substances included within the
definition of "hazardous substances", "hazardous materials", toxic substances",
"solid waste" in the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended, 42 U.S.C. Sections 9601, et seq. the Resource
Conservation and Recovery Act of 1976, 42 U.S.C. Sections 6901 et seq., the
Toxic Substances Control Act, 15 U.S.C. Sections 2601 et seq., and the Hazardous
Materials Transportation Act, 49 U.S.C Sections 1801 et seq., and in the
regulations promulgated pursuant to said laws; (ii) those substances listed in
the United States Department of Transportation Table (49 D.F.R. 172.101 and
amendments thereto) or by the Environmental Protection Agency (or any successor
agency) as hazardous substances (40 C.F.R. Part 302 and amendments thereto);
(iii) such other substances, materials and wastes which are regulated under
applicable local, state or federal law, or the Unites States government, or
which are classified as hazardous or toxic under federal, state or local laws or
regulations; (iv) any material, waste or substance which is or contains (i)
petroleum, (ii) asbestos or (iii) PCB, or which is designated as a "hazardous
substance" pursuant to Section 311 of the Clear Water Act, 33 U.S.C Sections
1251 et seq. (33 U.S.C. ss.1321) or listed pursuant to Section 307 of the Clean
Water Act (33 U.S.C. ss.1317), provided, however, that the term shall not
include those substances that are of a character and quantity that are
reasonably associated with the use of the Real Estate Properties as bank
branches.
6.17 Deposits. Attached hereto as Schedule 6.17 is a true and
accurate schedule of all Deposits (excluding brokered CDs, but including IRA's),
and related information, which are domiciled at the Branches, prepared as of a
date within 10 calendar days of the Agreement Date (which Schedule shall be
updated at and as of the Determination Date and, as updated, shall be true and
accurate as of such date). The Deposits are insured by the Savings Association
Insurance Fund of the Federal Deposit Insurance Corporation to the fullest
extent permitted by federal law. To the best knowledge of the Seller, the
Deposits were solicited and currently exist in material compliance with all
applicable requirements of federal, state and local laws and regulations
promulgated thereunder (for purposes of this clause, Deposit would not be in
material compliance if the non-compliance subjects the depository institution to
any penalty or liability). The Deposits (i) are in all material respects genuine
and enforceable obligations of Seller, except to the extent enforcement may be
limited by applicable bankruptcy, insolvency, reorganization or other similar
laws affecting creditor's rights generally and by general principles of equity
and (ii) were acquired in the ordinary course of Seller.
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6.18 Tenant Leases.
(a) The Leases are valid and binding
obligations of Seller, enforceable against Seller in accordance with their
terms, subject as to enforcement to bankruptcy, insolvency, reorganization,
moratorium, laws governing fraudulent conveyance or equitable subordination
principles and other laws of general applicability relating to or affecting
creditors' rights generally and to general principles of equity. To the best
knowledge of Seller, the Leases are valid and binding obligations of the
lessees, enforceable against the lessees in accordance with their terms, subject
as to enforcement to bankruptcy, insolvency, reorganization, moratorium, laws
governing fraudulent conveyance or equitable subordination principles and other
laws of general applicability relating to or affecting creditors' rights
generally and to general principles of equity. To the best knowledge of Seller,
the lessees under the Leases are not in default under, and no event has occurred
which, with notice or the lapse of time or both would constitute a default by
any lessee under the Leases. Seller has not previously received notice of any
event of default, or event or condition which with the giving of notice or lapse
of time, or both, would constitute a default under the Leases. Seller has
delivered a true and correct copy of the Leases to Purchaser. The Leases are the
only agreements between the Seller and the respective tenants thereunder
relating to the Branch Premises. The respective Leases represent the entire
agreement between the respective tenants thereunder and the Seller with respect
to the Branches. All payments of rent or other monies required to be paid to the
Seller pursuant to the Leases have been paid. The terms of the Leases permit the
premises subject to the Leases to be used as commercial offices only. Lease
summaries are detailed herein as Schedule 4.06.
(b) Seller is not entitled to, and has made
no agreements with the tenants under the Leases, or tenants' agents, employees
or representatives, concerning free rent, or other type of rental concession
including, without limitation, lease support payments or lease buyouts.
6.19 FIRPTA. Seller is not a "foreign person" within the
meaning of the Internal Revenue Codess.1445.
6.20 Closing Date. Each representation and warranty made by
Seller in this section shall be deemed to be made on and as of the date here of
and as of the Closing Date.
6.21 Representation Not Misleading. No representation or
warranty by the Seller contained in this Agreement, nor in any exhibit or
schedule furnished to the Purchaser by the Seller under and pursuant to, this
Agreement contains or will contain as of the date made and on the Closing Date
any untrue statement of a material fact or omits or will omit to state a
material fact necessary to make the statements contained herein or therein, in
light of the circumstances under which it was or will be made, not misleading.
6.22 Consents and Approvals. Except for any applicable
regulatory approvals, no consents, approvals, filings or registrations with any
third party or public body or agency are required in connection with Seller's
consummation of this transaction.
Section 7. Representations and Warranties of Purchaser. Purchaser
represents and warrants to Seller as follows:
7.01 Organization of Purchaser. Purchaser is a federal savings
bank, duly organized, validly existing under the laws of the United States of
America and has all corporate power and authority and possesses all governmental
and other permits, licenses, approvals and other authorizations to own or lease
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its properties and to carry on its business as now being conducted. Purchaser is
an insured bank as defined in the Federal Deposit Insurance Act and applicable
regulations relating thereto.
7.02 Authority; Binding Effect. Purchaser has full right and
authority to enter into this Agreement and, subject only to obtaining regulatory
approvals, to perform its obligations hereunder. The execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby have
been duly and validly authorized by the Board of Directors of Purchaser; no
other corporate acts or proceedings on the part of Purchaser are necessary to
authorize this Agreement or the transactions contemplated hereby; and this
Agreement constitutes the valid and legally binding obligation of Purchaser
enforceable against Purchaser in accordance with its terms. The execution and
delivery of this Agreement, the consummation of the transactions contemplated
hereby and the compliance by Purchaser with any of the provisions hereof will
not conflict with, result in a breach of, or entitle any party to terminate or
call a default with respect to any contract or instrument to which the Purchaser
is subject.
7.03 Broker's or Finder's Fees. Except for the fee to Bearing
Point, Inc., which shall be paid solely by Purchaser, there is no valid claim
against Purchaser by any broker or other third party for any finder's fee,
brokerage commission or other similar payment related to the transactions
contemplated hereby.
7.04 Closing Date. Each representation and warranty made by
Purchaser in this Article 7 shall be deemed to be made on and as of the date
hereof and as of the Closing Date.
7.05 Representation Not Misleading. No representation or
warranty by the Purchaser contained in this Agreement, nor in any exhibit or
schedule furnished to the Seller by the Purchaser under and pursuant to this
Agreement contains or will contain as of the date made and on the Closing Date
any untrue statement of a material fact or omits or will omit to state a
material fact necessary to make the statements contained herein or therein, in
light of the circumstances under which it was or will be made, not misleading.
7.06 Consents and Approvals. Except for any applicable
regulatory approvals, no consents, approvals, filings or registrations with any
third party or public body or agency are required in connection with Purchaser's
consummation of this transaction.
7.07 Community Reinvestment Act. At its most recent regulatory
evaluation of the Purchaser's performance under the Community Reinvestment Act
(the "CRA"), the Purchaser's record of performance was deemed to be
"outstanding" or "satisfactory", and no proceedings are pending or, to the
knowledge of the Purchaser, threatened, that would result in a change in such
evaluation. Purchaser has not received any adverse public comments with respect
to its compliance under the CRA since the date of its most recent regulatory
evaluation of its performance under the CRA.
7.08 USA PATRIOT Act. The Purchaser is in material compliance
with the applicable provisions of the Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of
2001 and the Bank Secrecy Act, and its implementing regulations.
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7.09 Regulatory Conditions. To the Purchaser's knowledge, no
fact or condition exists with respect to the Purchaser which Purchaser has
reason to believe will prevent it from obtaining approval from the applicable
governmental authorities of the transactions contemplated herein.
7.10 Application Filings. The Purchaser and Seller shall cause
to be filed within 10 calendar days of the Agreement Date, those applications
necessary to obtain the approval from the applicable governmental authorities to
complete the transactions contemplated herein. Purchaser and Seller shall pay
their own application filing fees.
Section 8. Conduct and Transactions Prior to Closing Date. Seller or
Purchaser, as the case may be, covenant that, except as otherwise previously
consented to in writing by the other party not making such covenant between the
date of this Agreement and the Closing Date, such party will do or cause the
following to occur:
8.01. Preservation of the Business of Seller. The business of
Seller at the Branches shall be conducted only in the ordinary course consistent
with past practices of the Seller.
8.02 Employee Compensation. Except for (A) customary merit and
grade increases, and (B) annual bonuses for 2003 performance that have not yet
been paid, in each case made in the ordinary course by Seller and consistent
with its past practices, no increase will be made in the compensation of the
employees at the Branches including, but not limited to, normal bonus, profit
sharing and other compensation.
8.03 Relationship. Seller shall use its commercially
reasonable efforts to maintain and preserve its relationships with depositors,
customers, and others having business relationships with the Branches.
8.04 Public Announcements; Purchaser's Right to Communicate
with Bank Customers. Neither the Purchaser nor Seller shall make any press
release, public announcements, or disclosure to any person or entity not having
a need to know, including announcements to employees or customers, concerning
the transactions provided for in this Agreement without the prior consent of the
other party hereto, which consent shall not unreasonably be withheld, delayed,
or denied, unless disclosure is required by law or regulation. Purchaser shall
also have the right to participate in preparing the text of any written
communication which the Seller may mail to its customers concerning the proposed
transaction or the assumption of their Deposits by the Purchaser.
8.05 Regulatory Approvals. Purchaser, with the reasonable
cooperation of the Seller, shall promptly prepare and file (but in any event no
later than 10 calendar days following the Agreement date) appropriate documents
with The Office of Thrift Supervision, and any other regulatory agencies whose
approval or consent may be required and thereafter use its best efforts to
obtain timely the requisite, unconditional approvals for the transactions
contemplated hereby from those agencies.
8.06 No Offers or Negotiations. Neither Seller nor its
affiliates will, directly or indirectly, negotiate, solicit, initiate or
encourage submission of proposals or offers from any other persons (including
without limitation any of its or their officers, directors, employees or
significant stockholders) relating to any acquisition or purchase of any portion
14
of the Assets or Assumed Liabilities. Seller shall promptly cease and cause to
be terminated any current negotiations conducted with any parties other than
Purchaser with respect to any such acquisition. Any consent heretofore granted
by Seller or its affiliates to permit persons to make any such proposal (other
than consents given to Purchaser) shall immediately be withdrawn and no further
consents, waivers or amendments shall be granted by Sellers. The provisions and
requirements of this Section 8.06 shall immediately terminate upon any
termination of this Agreement pursuant to Section 15.
8.07 ▇▇▇ Accounts. Prior to the Closing Date, Purchaser shall
designate a successor trustee or custodian, which may be Purchaser, as to any
▇▇▇ constituting a liability to be assumed by Purchaser and for which Seller
acts as trustee or custodian. Seller will transfer the trusteeship or
custodianship of all such IRAs to such successor trustee or custodian on the
Closing Date. Seller shall be responsible for all federal, state and local
income tax reporting for such accounts for the period ending on the Closing
Date, and the successor trustee or custodian shall be responsible for such
reporting thereafter.
8.08 Operational and Data Processing Conversion Matters.
Seller shall cooperate with Purchaser's reasonable requests in order to
accommodate any and all requirements for Purchaser to convert the operations of
the Branches from branches of Seller to branches of Purchaser, including without
limitation any requirements for the conversion of data processing to Purchaser's
systems. Seller covenants that it will assist Purchaser with Purchaser's
reasonable requests following the Closing in the event that Purchaser is unable
to complete its requirements prior thereto. If Purchaser believes it will be
unable to complete conversion prior to Closing, Purchaser shall so notify Seller
at least 30 days prior to Closing. In such event, Seller and Purchaser shall
negotiate in good faith to reach a service agreement that provides for Seller to
continue to "service" the Deposits and Transferred Loans for an interim period
of time and which provides for Seller to be compensated for providing such
services at Seller's fully-loaded costs not to exceed $5,000 per month.
8.09 Access to Books and Records. Seller shall furnish
Purchaser with such additional financial and other data and information
regarding the Assets and liabilities to be assumed as Purchaser reasonably may
request from time to time, including without limitation any information required
for inclusion in all government applications necessary to effect the transaction
contemplated hereby. Upon reasonable notice, Seller shall permit officers and
authorized representatives of Purchaser access to inspect the Branches during
normal business hours or at such other time mutually agreed by both parties and
permit Purchaser to make or cause to be made such reasonable investigation of
information and material relating to the condition of the Branches, including,
if any, general and subsidiary ledgers, deposit records and other information
concerning the business, property and legal questions concerning the Branches as
Purchaser reasonably deems necessary or advisable. Purchaser shall furnish
Seller with such additional financial and other data and information regarding
Purchaser as Seller reasonably may request from time to time, including without
limitation any information required for inclusion in all government applications
necessary to effect the transaction contemplated hereby.
8.10 Operation of Branches pending Closing. Excluding loan
commitments and deposits issued in the ordinary course of Seller, Seller shall
not in respect of the operations at the Branches enter into any contract
agreement or commitment which obligates the Purchaser for amounts in excess of
$5,000 without prior written approval from Purchaser, which shall not be
unreasonably withheld.
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Section 9. Obligation of Parties After the Closing. After the Closing
Date, and in addition, and not by way of limiting any of the foregoing:
9.01 Business Relationship.
(a) For a period of twenty-four months after
the Closing Date, Seller shall not cause, or attempt to cause or induce,
directly or indirectly, any person now or hereafter employed at the Branches to
terminate such employment; nor cause, directly or indirectly, or attempt to
cause, any customer or depositor whose name now or hereafter appears on the
books and records of the Branches to withdraw her, his or its banking
affiliation from the Branches; provided, however, the mere fact that Seller
hires any person formerly employed at the Branches or accepts banking business
from a former customer or depositor of the branches shall not be deemed to prove
Seller's breach under this subsection 9.01.
(b) For a period of twelve months following
the Closing Date, Seller shall not and shall cause it subsidiaries and
affiliates, successors or assigns not to, and shall not enter into any agreement
to, acquire, lease, purchase, own, operate or use any building, office or other
facility or premises located within ▇▇▇▇ ▇▇▇ County in the State of New Mexico
for the purpose of accepting deposits, cashing checks, making loans or
conducting general banking business. This provision shall not prohibit any
acquirer of the Seller or any of its subsidiaries or affiliates that currently
maintains banking operations in ▇▇▇▇ ▇▇▇ County from continuing such operations
after any such acquisition.
9.02 Transit Items. Each party shall exercise its best efforts
to assist the other party in the adjustment and delivery of all overages and
shortages of documentary and cash items in transit and items in collection as of
the Determination Date, as the interest in such items of the respective parties
hereto may then appear.
9.03 Indemnification.
(a) Seller agrees to and does hereby
indemnify, defend and hold Purchaser harmless from any loss, demand, obligation,
cost, expense or liability (including reasonable attorney's fees and expenses)
(i) arising out of any actions, suits or other proceedings by third parties
which (A) relate to the operations at the Branches on or prior to the
Determination Date, (B) relate to any wrongful act, omission or negligence of
Seller in regards to the operations of the Branches, the Assets or performance
(or the failure to fully perform or discharge any) of the Assumed Liabilities on
or prior to the Determination Date, or (C) relate to any liabilities of the
Seller or the Branches not specifically assumed by Purchaser hereunder or any
assets of the Seller or the Branches not acquired by Purchaser hereunder, or
(ii) arising out of the inaccuracy of any representation or warranty made by
Seller or any breach by Seller of its covenants or agreements contained herein
or in any instrument, document or certificate delivered to Purchaser pursuant
hereto.
(b) Purchaser agrees to and does hereby
indemnify, defend and hold Seller harmless from any loss, demand, obligation,
costs, expense or liability (including reasonable attorney's fees and expenses)
(i) arising out of any actions, suits or other proceedings by third parties
which (A) relate to the operations at the Branches subsequent to the
Determination Date, or (B) relate to any wrongful act, omission or negligence of
Purchaser relating to the operations of the Branches, the Assets or the
performance (or the failure to fully perform or discharge any) of the Assumed
Liabilities subsequent to the Determination Date; or (ii) arising out of the
16
inaccuracy of any representation or warranty made by Purchaser or any breach by
Purchaser of its covenants or agreements contained herein or in any instrument,
document or certificate delivered to Seller pursuant hereto.
(c) Any claim from indemnification under
this Section 9.03 must be made by the party claiming a right to such
indemnification on or before the date that is twenty-four months from the
Closing Date.
9.04 Tax Reporting. Seller and Purchaser agree that each party
shall be solely responsible for providing to the Internal Revenue Service and to
each depositor, other holder of a liability assumed or customer, to the extent
required by law, Forms 1098, 1099 INT, 1099R and 5498 and other applicable
reporting forms with respect to each of the liabilities assumed and Assets
transferred for the period during which Seller or Purchaser, as applicable,
administers such liabilities or Assets during 2004.
Section 10. Risk of Loss. Pending the Determination Date, the risk of
loss in regard to the Assets shall be upon Seller. After the Determination Date,
the risk of loss in regard to the Assets shall be on Purchaser. Each party shall
procure insurance, as appropriate, to cover such risks.
Section 11. Conditions to Obligations of Parties. The obligations of
Purchaser and Seller to consummate the transactions contemplated hereby shall be
subject to the condition that all orders, consents and approvals of regulatory
agencies necessary in order for the transactions provided for in this Agreement
to be lawfully accomplished shall have been obtained in form and substance
reasonably satisfactory to the Purchaser and Seller.
Section 12. Conditions to Obligations of Purchaser. The obligations of
Purchaser hereunder shall be subject to the satisfaction on or prior to the
Closing Date of each of the following conditions, unless Purchaser shall have
waived such condition in writing.
12.01 Representations and Warranties of Seller. The
representations and warranties of Seller contained herein shall be true in all
material respects when made and at the Closing Date with the same force and
effect as though made at and as of such time, and Seller shall have performed
all obligations and complied with all covenants to be performed or complied with
by it on or prior to the Closing Date. Seller shall have delivered to Purchaser
a certificate dated as of the Closing Date to such effect. Seller also shall
have delivered to Purchaser all documents, instruments and other items required
to be delivered by Seller under Section 5.02 hereof.
12.02 Litigation. At the Closing Date, there shall not be
pending or threatened any litigation in any court or any proceeding before or by
any governmental department, agency or instrumentality in which it is sought to
restrain or prohibit or obtain damages in respect of the consummation of the
transactions contemplated hereby, to cause a divestment by Seller or Purchaser
of any significant portion of its respective assets or to impose any limitation
upon the exercise by Purchaser of its general banking powers subsequent to
consummation of the transactions contemplated hereby.
12.03 No Material Adverse Change. There shall not have
occurred any material adverse change from Agreement Date to the Closing Date in
the business of the Branches, the Assets, the Transferred Loans, the Deposits,
17
or the other Assets; provided, however, in no event shall the resignation of any
employee (or any adverse change resulting primarily from the resignation of an
employee) be deemed a material adverse change for the purpose of this paragraph.
12.04 Lease Agreements. The consents under the Leases to the
assignment by Seller of the Leases to Purchaser shall have been obtained without
the imposition of conditions Purchaser deems in its reasonable discretion to be
unduly burdensome or unreasonable. Such consents shall be in form and substance
satisfactory to Purchaser in the exercise of its reasonable discretion, and
shall include the respective representation and warranty to Purchaser that each
respective Lease is a valid and binding obligation.
Section 13. Conditions to Obligations of Seller. The obligations of
Seller hereunder shall be subject to the satisfaction on or prior to the Closing
Date of the following conditions, unless waived in writing by Seller:
13.01 Representations and Warranties of Purchaser. The
representations and warranties of Purchaser hereunder shall be true in all
material respects when made and at the Closing Date with the same force and
effect as though made at and as of such time, and Purchaser shall have performed
all obligations and complied with all covenants required under this Agreement to
be performed or complied with by it on or prior to the Closing Date. Purchaser
shall have delivered to Seller a certificate dated as of the Closing Date to
such effect. Purchaser shall have delivered to Purchaser all documents,
instruments and other items required to be delivered by Purchaser under Section
5.02 hereof.
13.02 Litigation. At the Closing Date, there shall not be
pending or threatened any litigation in any court or any proceeding before or by
any governmental department, agency or instrumentality in which it is sought to
restrain or prohibit or obtain damages in respect of the consummation of the
transactions contemplated hereby, to cause a divestment by Seller or Purchaser
of any significant portion of its respective assets or to impose any limitation
upon the exercise by Purchaser of its general banking powers subsequent to
consummation of the transactions contemplated hereby.
13.03 No Material Adverse Change. There shall not have
occurred any material adverse change from Agreement Date to the Closing Date in
the business or financial condition of Purchaser.
13.04 Lease Agreements. The consents under the Leases to the
assignment by Seller of the Leases to Purchaser shall have been obtained without
the imposition of conditions Purchaser deems in its reasonable discretion to be
unduly burdensome or unreasonable. Such consents shall be in form and substance
satisfactory to Purchaser in the exercise of its reasonable discretion, and
shall include the respective representation and warranty to Purchaser that each
respective Lease is a valid and binding obligation.
Section 14. Notice to Depositors. Seller agrees that Purchaser shall,
in the form of a letter mutually acceptable to Seller and Purchaser or as
otherwise required by law, give notice to depositors of its assumption of the
Deposits at the Branches.
Section 15. Termination of Agreement. This Agreement may be terminated
at any time prior to the Closing under the following conditions:
18
(a) By the consent in writing of the
Purchaser and Seller;
(b) By the Purchaser in writing if any of
the conditions precedent to the obligations of the Purchaser contained in
Section 12 of this Agreement or the conditions of the obligations of the parties
contained in Section 11 of this Agreement shall not have been satisfied prior to
June 1, 2004.
(c) By the Seller in writing if any of the
conditions precedent to the obligations of the Seller contained in Section 13 of
this Agreement or the conditions to the obligations of the parties contained in
Section 11 of this Agreement shall not have been satisfied prior to June 1,
2004.
(d) By Purchaser in writing due to a breach
by Seller of any of its representations, warranties or covenants or agreements
contained herein, which breach remains uncured for more than 10 days following
notice of such breach by Purchaser.
(e) By Seller in writing due to a breach by
Purchaser of any of its representations, warranties or covenants or agreements
contained herein, which breach remains uncured for more than 10 days following
notice of such breach by Purchaser.
In the event of the termination of this Agreement pursuant to the provisions of
this section, this Agreement shall be of no further force and effect, and no
party hereto shall have any liability or further obligation to the other party
to this Agreement. Notwithstanding the foregoing, no party shall be relieved by
such termination for any liability that accrued due to any material breach of
this Agreement prior to such termination.
Section 16. Miscellaneous.
16.01 Expenses. Whether or not the transactions contemplated
herein shall be consummated, Purchaser and Seller each shall pay their own
expenses incident to, preparing for, entering into and carrying into effect the
terms of this Agreement.
16.02 Notices. Any notice or communication required or
permitted to be made hereunder shall be in writing, and shall be deemed to have
been made if personally delivered in return for a receipt, or if mailed, by
registered or certified mail, return receipt requested, to the parties at the
addresses shown below. The date of personal delivery shall be the date of giving
notice or if mailed in the manner prescribed above, notice shall be deemed to
have been given three business days after the mailing.
If to Purchaser: FIRSTBANK
▇▇. ▇▇▇ ▇▇▇▇▇▇▇, President
▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ - Telephone
(▇▇▇) ▇▇▇-▇▇▇▇ - Facsimile
19
with a copy to: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ LLP
Renaissance ▇▇▇
▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ - Telephone
(▇▇▇) ▇▇▇-▇▇▇▇ - Facsimile
E-Mail - ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
with a copy to Mr. ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.A.
▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ Telephone
(▇▇▇) ▇▇▇-▇▇▇▇ Facsimile
If to Seller: Matrix Capital Bank
D. ▇▇▇▇ ▇▇▇▇▇▇▇
President
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ , ▇▇ ▇▇▇▇▇
(▇▇▇)-▇▇▇-▇▇▇▇ - Telephone
(▇▇▇)-▇▇▇-▇▇▇▇ - Facsimile
with a copy to: T. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
General Counsel
with a copy to: T. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
General Counsel
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ - Telephone
(▇▇▇) ▇▇▇-▇▇▇▇ - Facsimile
16.03 Entire Agreement. This Agreement, including all
exhibits, schedules and documents delivered in connection therewith, and the
Confidentiality Agreement dated October 23, 2003 (the "Documents") sets forth
the entire understanding of the parties hereto and supersedes all prior
agreements and understanding, whether oral or written. This Agreement shall not
be modified or amended except by written agreement of all parties hereto. Any
reference herein to the Agreement shall be deemed to include the Documents.
16.04 Binding Effect. This Agreement shall be binding upon and
inure to the benefit of each of the parties hereto, their respective legal
representatives, successors and assigns; provided, however, that no assignment
of this Agreement or any rights or obligations hereunder may be made by any
party hereto without the prior written consent of the other party and no
assignment by any party hereunder shall relieve said party of any of its
obligations or duties hereunder.
20
16.05 Further Assurances. Each of the parties hereto agrees to
execute and deliver such further agreements, assurances, instruments and
documents at any time reasonably requested by another party as are necessary or
desirable in order to consummate the transactions contemplated by this
Agreement.
16.06 Survival of Representations and Warranties. All
representations and warranties contained in this Agreement shall survive the
execution and delivery hereof for a period of twenty-four months.
16.07 Construction. This Agreement shall be construed and
interpreted in accordance with the laws of the State of New Mexico applicable to
contracts made and performed entirely therein.
16.08 Section Headings. The section headings contained in this
Agreement are for convenience and reference only and shall not in any way affect
the meaning or interpretation of this Agreement.
16.09 Counterparts. This Agreement may be executed in any
number of identical counterparts, each of which shall be deemed an original for
all purposes, but all of which taken together shall form but one Agreement. This
Agreement may be executed and delivered by facsimile transmission of a
counterpart signature page hereof.
16.10 Attorney Fees. In any action brought by a party hereto
to enforce the obligations of any other party hereto, each party shall be
responsible for its own litigation costs and attorney's fees and expenses
(including court costs, reasonable fees of accountants and experts, and other
expenses incidental to the litigation).
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized officers as of the day and year first above
written.
PURCHASER: FIRSTBANK
By:_______________________
[seal] ▇▇▇ ▇. ▇▇▇▇▇▇▇, President
Attest: ___________________
___________________
Title
SELLER MATRIX CAPITAL BANK
By:_____________________
D. ▇▇▇▇ ▇▇▇▇▇▇▇, President
[seal]
Attest: ____________________
____________________
Title
21
SCHEDULE 4.06
RENT ROLL
Matrix Capital Bank and Annex
Unit # Sq Ft. Lease Date Termination Date
TOWER
100 7,433 N/A N/A
101 1,408 11/12/02 10/31/07
200/205 6,119 01/01/03 2/28/04
201 940 Vacant
204 1,433 07/01/03 06/30/04
301A/B 585 02/01/02 Month to month
301C/D 398 03/12/01 12/31/03
304 5,180 01/01/02 12/31/03
305 519 02/01/02 01/31/07
308 528 Vacant
309 1,344 12/01/01 11/30/04
------
Total 25,897
ANNEX
A 629 N/A N/A
AA 1,576 N/A N/A
C 1,369 01/01/03 06/30/05
D 703 N/A N/A
F 1,406
G 1,625 01/01/03 12/31/03
H 1,345 N/A
------
Total Annex 8,662
Total Building 34,560
22
SCHEDULE 6.06
FURNITURE, FIXTURES, EQUIPMENT & LEASE HELD IMPROVEMENTS PURCHASED
▇▇▇▇▇▇ FACILITY
BOOK VALUE
ASSET DESCRIPTION TYPE PURCHASE PRICE
--------------------------------------------------------------------------------------------------------------
SMART 2/DH PCI ARRAY Computer Hardware $ -
Video Conferencing System Las Cruces Office Equipment
GMC YUKON 2001 Green Office Equipment
F&F Board Room Art 4 PCS ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Furniture & Fixtures
F&F Board Room 12 chairs green leather Furniture & Fixtures
Equip-Drive-up Camera Office Equipment
Executive Conference Desk Furniture & Fixtures
Kneespace Credenza Furniture & Fixtures
High back chair with chrome base Furniture & Fixtures
Lateral File Furniture & Fixtures
Bookcase wire mesh doors for ▇. ▇▇▇▇▇ Furniture & Fixtures
F&F Board Room Cigar Chair/Ottoman Furniture & Fixtures
Lamp Table Furniture & Fixtures
Lamp Table Furniture & Fixtures
Arm Chair Chesepeake Furniture & Fixtures
Arm Chair Chesepeake Furniture & Fixtures
Arm Chair Chesepeake Furniture & Fixtures
Arm Chair Chesepeake Furniture & Fixtures
F&F 3 paintings Furniture & Fixtures
F&F Board room Universal Server Furniture & Fixtures
F&-Shelving Unit for LN Files Furniture & Fixtures
Equip-ATM Picacho Office Equipment
Equip-Alarm & Camera-ATM Picacho Office Equipment
Equip-ATM Pacacho FUJITSU Office Equipment
F&F Cubicles Main Branch Furniture & Fixtures
Dell Notebook C810 13GHZ P3 Computer Hardware
VECTRA VE18DTP3 600E 13.5 GB Computer Hardware
CPQ 2HD's Computer Hardware
Computer-Dell Inspirion Laptop Computer Hardware
Aeron Chair Furniture & Fixtures
Equip Office Equipment
Drive-up Unit W/2 Lanes Office Equipment
F&F Furniture & Fixtures
F&F Teller Seating 3 chairs Furniture & Fixtures
F&F-6 Legal Size Drawer Cabinets Furniture & Fixtures
F&F-6 Conference Chairs Furniture & Fixtures
F&F-2 Posture Sterno Chairs Furniture & Fixtures
F&F Wooden Aerial Bench Furniture & Fixtures
F&F 4 Wooden Aerial Chairs New Accounts Furniture & Fixtures
F&F-4 Whitnel Wooden Chairs Waiting Area Furniture & Fixtures
F&F- Coffee Table East Mesa Furniture & Fixtures
F&F-furniture E. Mesa Furniture & Fixtures
23
Equip-Undercounter Office Equipment
Equip-Surveillance System Office Equipment
Equip-Diebold Deal Drawer Office Equipment
Night Depository Office Equipment
Equip-ATM Office Equipment
Equip-Refurbished Cash Vault Office Equipment
Equip-15 Porta Vault Office Equipment
Equip-Fax E. Mesa Office Equipment
Comp-HDWATM Circuit DSU E. Mesa Computer Hardware (inactive)
F&F-Refinish Desks Furniture & Fixtures
Equip-Phone System E. Mesa Office Equipment
Comp-HDWLASER Printer E. Mesa Computer Hardware (inactive)
Comp-HDWSERVER E. Mesa Computer Hardware (inactive)
Comp-HDWCABLING E. Mesa Computer Hardware (inactive)
Comp-HDWCABLING E. Mesa Computer Hardware (inactive)
Equip-Alarm System Office Equipment
Comp-HDWCISCO Router E. Mesa Computer Hardware
Lobby Cubicle Customer Service Furniture & Fixtures
Lobby Cubicles Customer Service Furniture & Fixtures
Coin Counter Main Lobby Office Equipment
HP Switches for LC Computer Hardware
Teller Pedestal W/Trays Furniture & Fixtures
File Server LC Computer Hardware
COMPAQ Proliant DL380 P3 Rembrandt Loan Computer Hardware
Printers Computer Hardware
▇▇▇▇ ▇▇▇▇▇/Computer Computer Hardware
Router LC Computer Hardware
HP Computer Equipment Las Cruces Computer Hardware
HP Switches PWR SVP Computer Hardware
SONY VAIO PCV LX700 P3 64GB 20GB Computer Hardware
SONY VAIO PCV LX700 P3 64MD 20GBHD/CD Computer Hardware
Dell Optiplex Computer Hardware
Dell Optiplex Computer Hardware
Dell Dimension Computer Hardware
Dell Dimension Computer Hardware
Dell Dimension Computer Hardware
Dell Dimension Computer Hardware
Currency Counter Office Equipment
Equip-Audio System Drive-up Windows Office Equipment
Audio System-Drive-up Office Equipment
Modular Router Computer Hardware
SAVIN 9220 Copier East Mesa Office Equipment
FORM Printer Computer Hardware
DELL Optiplex Computer Hardware
DELL Optiplex Computer Hardware
DELL Optiplex Computer Hardware
Comp-HDW-COMPAQ/Server East Mesa Computer Hardware
▇▇▇▇▇▇ Sorter/Counter Office Equipment
Proof Imaging Equip Office Equipment
SAVIN FAX/Print Office Equipment
24
MICROFICHE MACHINE Office Equipment
File Server Computer Hardware
CPQ 256 MB Registered SD RAM RIMM Computer Hardware
HARD DRIVE COMPONENT UPGRANDES Computer Hardware
HP Switches for LC Computer Hardware
CPQ Desktop ▇▇▇▇/LC Computer Hardware
FAX Machine - Main Office Equipment
NOVELL Network Components Computer Hardware
Comp-HDW Printer Computer Hardware
F&F-Carpet Mortgage Dept. Leasehold Improvements
XEROX Work Center PRO765 Office Equipment
INSPIRON 2500 12.1 SVGA Computer Hardware
Laser Jet HP 4000 Office Equipment
DELL Dimension Computer Hardware
F&F - Door Furniture & Fixtures
Comp-Soft - HMDA Relief software Computer Software
HP E-PC CO 7933 20GB 128 Las Cruces Computer Hardware
Cubicle Main Lobby Com Lending Furniture & Fixtures
Cubicle Main Lobby Com Lend Furniture & Fixtures
HP E-PC C10 20GB 128MB Computer Hardware
WIN FAST 2.3A ▇▇▇▇▇'▇ Risk Mgt Services Computer Software
HP Vectra VL400 Computer Hardware
HP Vectra VL400 Computer Hardware
Cubicle Maon Lobby Cons Lend Furniture & Fixtures
F&F-Exec Desk W/Hutch Furniture & Fixtures
EQUIP Office Equipment
Alarm System Office Equipment
DELL Optiplex Computer Hardware
Equip Office Equipment
Shredder Office Equipment
OFFICE BLDG-SLIM LINE ATM BLDG Commercial Property
$ 227,000
SCHEDULE 6.07
CONTRACTS
[▇▇▇ is verifying and updating]
Amount of
Payment Per Year
Person with whom Name of Date of Expiration Amount of
Contract is made contract contract Date (indicate which)
---------------- -------- -------- ---- ----------------
----------------------------------------------------------------------------------------------------------------------
CREDIT CARD MERCHANT APPLICATION AND AGREEMENTS
----------------------------------------------------------------------------------------------------------------------
Sun Bowl Inc. Credit Card Agree 11-18-96 15 day notice Unknown - No back side to
the Agreement
---------------------------- ------------------------- -------------- ---------------- -----------------------------
RG River Resort Credit Card Agree 09-29-98 15 day notice Unknown - Bank N/S
---------------------------- ------------------------- -------------- ---------------- -----------------------------
Cultural Society of Credit Card Agree 06-29-99 15 day notice Unknown
Mesilla Valley - 150
---------------------------- ------------------------- -------------- ---------------- -----------------------------
Pace Management Credit Card Agree 04-12-00 15 day notice Unknown
---------------------------- ------------------------- -------------- ---------------- -----------------------------
Las Cruces Symphony Credit Card Agree 07-06-00 15 day notice Unknown - Bank N/S
---------------------------- ------------------------- -------------- ---------------- -----------------------------
Veteran Home Lns Inc Credit Card Agree 08-26-00 15 day notice Unknown
---------------------------- ------------------------- -------------- ---------------- -----------------------------
Affordable Plumbing Credit Card Agree 09-05-00 15 day notice Unknown
---------------------------- ------------------------- -------------- ---------------- -----------------------------
Pro Source Supply Credit Card Agree 01-22-01 15 day notice Unknown
---------------------------- ------------------------- -------------- ---------------- -----------------------------
Lanelle's of Las Cruces Credit Card Agree 01-23-01 15 day notice Unknown - Not signed Bank
or Merchant
---------------------------- ------------------------- -------------- ---------------- -----------------------------
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Credit Card Agree 05-13-02 15 day notice Unknown
D.O.
--------------------------------------------------------------------------------------------------------------------
LICENSE AGREEMENT
----------------------------------------------------------------------------------------------------------------------
CALYX POINT@ S/W LIC 12-18-97 ??? $910 - 10 Computers
---------------------------- ------------------------- --------------- ---------------- ----------------------------
RMS Info. Services Mkt. Agreement 06-01-94 Yrly - Auto DA S&L - $63 p/m - $756
9-1-95 - 30 p/y
d/not b/anniv
---------------------------- ------------------------- --------------- ---------------- ----------------------------
▇▇▇▇ Brilliant Business Development 2000 Immediately $1,000 plus p/m - pd qtrly
Rep. with notice
either party
--------------------------------------------------------------------------------------------------------------------
SERVICE/ MAINTENANCE CONTRACTS
----------------------------------------------------------------------------------------------------------------------
Knight Security School Courier Agree 01-07-02 5 working days $9.75 p/hour - Main
notice
---------------------------- ------------------------- --------------- ---------------- ----------------------------
Knight Security School Courier Agree 01-07-02 5 working days $9.75 p/hour - Mesa
notice
---------------------------- ------------------------- --------------- ---------------- ----------------------------
Knight Security Patrol Agreement 01-07-02 5 working days $100 p/m - Main
notice
---------------------------- ------------------------- --------------- ---------------- ----------------------------
Knight Security Patrol Agreement 01-07-02 5 working days $100 p/m - Mesa
notice
---------------------------- ------------------------- --------------- ---------------- ----------------------------
Knight Security Security Agreement 01-07-02 5 working days $9.75 p/hour - Main
notice
---------------------------- ------------------------- --------------- ---------------- ----------------------------
Knight Security Security Agreement 01-07-02 5 working days $40 p/m
Church deposit notice
---------------------------- ------------------------- --------------- ---------------- ----------------------------
Knight Security Security Agreement 01-07-02 5 working days $9.75 p/hour - Mesa
notice
---------------------------- ------------------------- --------------- ---------------- ----------------------------
26
SCHEDULE 6.07 - CONTINUED
Amount of
Payment Per Year
Person with whom Name of Date of Expiration Amount of
Contract is made contract contract Date (indicate which)
---------------- -------- -------- ---- ----------------
----------------------------------------------------------------------------------------------------------------------
SERVICE/ MAINTENANCE CONTRACTS CONTINUED
----------------------------------------------------------------------------------------------------------------------
Fisource, Inc. ATM Software 12-01-97 1 yr, 1 yr $235.66 X 2 ATM's
Maintenance (Fujitsus) auto renew., ($471.32 annually)
notice to PREPAID
cancel 60 dys
prior to
renew.
---------------------------- ------------------------- --------------- ---------------- ----------------------------
Fisource, Inc. ATM 2nd line (3), 12-01-97 1 yr, 1 yr $10,861.46 annually
Pneumatics (both auto renew., PREPAID
branches, notice to
cancel 60 dys
prior to renew.
---------------------------- ------------------------- --------------- ---------------- ----------------------------
B&K System Technologies, Maintenance on NCR ▇▇▇▇ ▇▇-▇▇-▇▇ 06-14-04 $1958.00 annually
Inc. (proof) PREPAID
---------------------------- ------------------------- --------------- ---------------- ----------------------------
▇▇▇▇ Enterprises d/b/a Armored car/cask 09-01-03 12 months, Per use fees apply per
Miracle Delivery transport then 30 days schedule, no fixed payment
notice required
---------------------------- ------------------------- --------------- ---------------- ----------------------------
Distribution Management Cash Letter Delivery to 11-13-00 30 days notice $12.50 per day, as
Corp. El Paso Fed. services are used
---------------------------- ------------------------- --------------- ---------------- ----------------------------
▇▇▇▇▇▇▇▇▇ Inc. Realtors Leasing Brokerage 09-05-02 10-31-04 None, based on signed
agreement on ▇▇▇▇▇▇ leases, payable at signing
---------------------------- ------------------------- --------------- ---------------- ----------------------------
Norstan Communications Telephone System Maint. 01-06-02 01-06-03 $6,284.48
(expired)
---------------------------- ------------------------- --------------- ---------------- ----------------------------
Telstar Comm Alarm Monitoring 08-29-97 08-29-98 - mtm Mesa - $32 p/m
30 d/n
---------------------------- ------------------------- --------------- ---------------- ----------------------------
Image Ideas Savin Copier 9965DP 12-01-99 Term not on $2,583 + p/y billed
Bank Docs quarterly
---------------------------- ------------------------- --------------- ---------------- ----------------------------
SW Professional S Janitorial Services 12-01-00 30 day notice $3,174 ▇▇▇▇▇▇ & Mesa
---------------------------- ------------------------- --------------- ---------------- ----------------------------
Envir Systems Cont HVAC - Controls 07-23-01 None $489 - No Annex
---------------------------- ------------------------- --------------- ---------------- ----------------------------
Go Direct Mailing Mail Processing 01-31-00 01-31-01 $3,000 p/mo plus - Bank N/S
Annual Auto -
30 d/notice
---------------------------- ------------------------- --------------- ---------------- ----------------------------
DIEBOLD Alarm Ser Panel 04-01-97 12-01-94 DA S&L $134 p/y
60 day notice
---------------------------- ------------------------- --------------- ---------------- ----------------------------
ThyssenKrupp Elevator Elevator (2) 01-01-03 01-01-08 - $900 p/q
noncancelable
---------------------------- ------------------------- --------------- ---------------- ----------------------------
▇▇▇▇▇▇▇ Ins. GP. SI Insurance 03-15-01 30 day notice Instl Repos $1,500=$50,000
---------------------------- ------------------------- --------------- ---------------- ----------------------------
----------------------------------------------------------------------------------------------------------------------
ADVERTISING AGENCY AGREEMENT
----------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇ & Assoc Client/Agency 07-01-99 mtm 1-1-00 30 $1,500 p/m plus cost plus
Agreement d/notice 15% ????
---------------------------- ------------------------- --------------- ---------------- ----------------------------
----------------------------------------------------------------------------------------------------------------------
LEASE AGREEMENTS
----------------------------------------------------------------------------------------------------------------------
Pitney B Credit Corp Inserting System 03-18-00 08-20-04 $1,350 p/q - $5,400 p/y
---------------------------- ------------------------- --------------- ---------------- ----------------------------
Picacho Hills Country Club Ground lease for ATM 05-01-02 5 years w/3 $150/quarter paid in
year mutual advance
option
---------------------------- ------------------------- --------------- ---------------- ----------------------------
Aquaperfect, Inc. 3 water coolers 06-06-03 36 months $124.85/month
---------------------------- ------------------------- --------------- ---------------- ----------------------------
--------------------------------------------------------------------------------------------------------------------
27
SCHEDULE 6.07 - CONTINUED
----------------------------------------------------------------------------------------------------------------------
STORAGE RENTAL
----------------------------------------------------------------------------------------------------------------------
RMS, Inc. Record Storage 05-17-02 Continues Priced per container,
until 60 day approx $500/month
notice
---------------------------- ------------------------- --------------- ---------------- ----------------------------
Holiday Storage 10' x 10' Stor Unit 08-31-99 10 days - Dep + $48 p/m
---------------------------- -------------------------- -------------- ---------------- ----------------------------
----------------------------------------------------------------------------------------------------------------------
COLLECTION AGREEMENT
----------------------------------------------------------------------------------------------------------------------
Collectrite Collection Agreement 12-21-00 12-21-02 - 30% of accts placed for
Annual Renewal collection.
---------------------------- -------------------------- -------------- ---------------- ----------------------------
----------------------------------------------------------------------------------------------------------------------
SERVICE/ MAINTENANCE CONTRACTS CONTINUED
----------------------------------------------------------------------------------------------------------------------
Telstar Comm Alarm Monitoring 08-29-97 08-29-98 - mtm Mesa - $32 p/m
30 d/n
---------------------------- ------------------------- --------------- ---------------- ----------------------------
Image Ideas Savin Copier 9965DP 12-01-99 Term not on $2,583 + p/y billed
Bank Docs quarterly
---------------------------- ------------------------- --------------- ---------------- ----------------------------
Copy Machines Inc ▇▇▇▇▇▇ Copier HIK003566 07-22-98 07-21-99 - $515 p/m
Annual -
unless 30
notice
---------------------------- ------------------------- --------------- ---------------- ----------------------------
SW Professional S Janitorial Services 12-01-00 30 day notice $3,174 ▇▇▇▇▇▇ & Mesa
---------------------------- ------------------------- --------------- ---------------- ----------------------------
Envir Systems Cont HVAC - Controls 07-23-01 None $489 - No Annex
---------------------------- ------------------------- --------------- ---------------- ----------------------------
Go Direct Mailing Mail Processing 01-31-00 01-31-01 $3,000 p/mo plus - Bank N/S
Annual Auto -
30 d/notice
---------------------------- ------------------------- --------------- ---------------- ----------------------------
Pitney B Credit Corp Inserting System 03-18-00 08-20-04 $1,350 p/q - $5,400 p/y
---------------------------- ------------------------- --------------- ---------------- ----------------------------
DIEBOLD Alarm Ser Panel 04-01-97 12-01-94 DA S&L $134 p/y
60 day notice
---------------------------- ------------------------- --------------- ---------------- ----------------------------
ThyssenKrupp Elevator Elevator (2) 01-01-03 01-01-08 - $900 p/q
noncancelable
---------------------------- ------------------------- --------------- ---------------- ----------------------------
▇▇▇▇▇▇▇ Ins. GP. SI Insurance 03-15-01 30 day notice Instl Repos $1,500=$50,000
---------------------------- ------------------------- --------------- ---------------- ----------------------------
----------------------------------------------------------------------------------------------------------------------
ADVERTISING AGENCY AGREEMENT
----------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇ & Assoc Client/Agency 07-01-99 mtm 1-1-00 30 $1,500 p/m plus cost plus
Agreement d/notice 15% ????
---------------------------- ------------------------- --------------- ---------------- ----------------------------
----------------------------------------------------------------------------------------------------------------------
COCA-COLA MACHINE
----------------------------------------------------------------------------------------------------------------------
??? ??? To Be Furnished By ▇▇▇ ▇▇▇▇▇▇
---------------------------- ------------------------- --------------- ---------------- ----------------------------
----------------------------------------------------------------------------------------------------------------------
STORAGE RENTAL
----------------------------------------------------------------------------------------------------------------------
Holiday Storage 10' x 10' Stor Unit 08-31-99 10 days - Dep + $48 p/m
---------------------------- -------------------------- -------------- ---------------- ----------------------------
----------------------------------------------------------------------------------------------------------------------
COLLECTION AGGREEMENT
----------------------------------------------------------------------------------------------------------------------
Collectrite Collection Agreement 12-21-00 12-21-02 - 30% of accts placed for
Annual Renewal collection.
---------------------------- -------------------------- -------------- ---------------- ----------------------------
----------------------------------------------------------------------------------------------------------------------
HOLD HARMLESS AGREEMENT
----------------------------------------------------------------------------------------------------------------------
Dr. ??? TO BE FUR BY ▇▇▇ Monitoring Equip 01-05-00 None No Income or Expense to
H. Bank
---------------------------- -------------------------- -------------- ---------------- ----------------------------
--------------------------------------------------------------------------------------------------------------------
SUGGESTIONS ???
--------------------------------------------------------- -------------- ---------------- ----------------------------
Armored car Looking - Have To Be Furnished By ▇▇▇ ▇▇▇▇▇▇
------------------------------ -------------------------- -------------- ---------------- ----------------------------
ATM - Maintaince Fisource, CC, M&M To Be Furnished By ▇▇▇ ▇▇▇▇▇▇
------------------------------ -------------------------- -------------- ---------------- ----------------------------
Landscaping None
------------------------------ -------------------------- -------------- ---------------- ----------------------------
Signs None
------------------------------ -------------------------- -------------- ---------------- ----------------------------
Data Processing N/A
------------------------------ -------------------------- -------------- ---------------- ----------------------------
Alarms - Main Diebold above
------------------------------ -------------------------- -------------- ---------------- ----------------------------
ATM - Cash Handling None
------------------------------ -------------------------- -------------- ---------------- ----------------------------
28
----------------------------------------------------------------------------------------------------------------------
SCHEDULE 6.07 - CONTINUED
----------------------------------------------------------------------------------------------------------------------
------------------------------ -------------------------- -------------- ---------------- ----------------------------
Credit Life None
------------------------------ -------------------------- -------------- ---------------- ----------------------------
HVAC - Mesa None
------------------------------ -------------------------- -------------- ---------------- ----------------------------
29