As filed with the Securities and Exchange Commission on April 9,
1998
Registration No. 333-________
U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form SB-2
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF
1933
POINTE FINANCIAL CORPORATION
(Name of small business issuer in its charter)
Florida
(State or other jurisdiction 6712 65-0451402
of incorporation (Primary Standard Industrial (I.R.S. Employer
or organization) Classification Code Number) Identification No.)
21845 Powerline Road
Boca Raton, Florida 33433
(561) 368-6300
(Address and telephone number of principal executive offices)
21845 Powerline Road
Boca Raton, Florida 33433
(Address of principal place of business or
intended principal place of business)
R. Carl Palmer, Jr.
President
Pointe Financial Corporation
21845 Powerline Road
Boca Raton, Florida 33433
561) 368-6300
(Name, address, and telephone number,
including area code, of agent for service)
Copies to:
Thomas R. Blake, Esq. Michael T. Kohler, Esq.
Stuzin & Camner, P.A. Brown & Wood LLP
550 Biltmore Way, Suite 700 One World Trade Center
Coral Gables, FL 33134 New York, NY 10048
(305) 442-4994 (212) 839-5300
Approximate date of proposed sale to the public: As soon as
practicable after this Registration Statement becomes effective.
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement
number of the earlier effective registration statement for the
same offering.
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier
effective registration statement number of the earlier effective
registration statement for the same offering.
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier
effective registration statement for the same offering.
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box.
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
Title of Each Class
of Securities to be Registered Common Stock, $.01 par value
<S> <C>
Amount to be
Registered<F1> 764,750
Proposed
Maximum
Offering Price
per Unit<F2> $16.00
Proposed
Maximum
Aggregate
Offering
Price<F2> $12,236,000
Amount of
Registration
Fee $3,610.00
<FN>
<F1> Based upon the maximum number of shares of the Registrant's
Common Stock that may be issued under this Registration
Statement, including 99,750 shares of Common Stock that may be
issued upon exercise of the Underwriters' over-allotment option.
<F2> Estimated solely for the purpose of calculating the registration fee
on the basis of the proposed maximum offering price per share.
</FN>
</TABLE>
The Registrant hereby amends this Registration Statement on such
date or dates as may be necessary to delay its effective date until
the Registrant shall file a further amendment which specifically
states that this Registration Statement shall thereafter become
effective in accordance with Section 8(a) of the Securities Act of
1933 or until the Registration Statement shall become effective on
such date as the Commission, acting pursuant to Section 8(a),
may determine.
SUBJECT TO COMPLETION, DATED April 9, 1998
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR
AMENDMENT. A REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY
NOT BE SOLD NOR MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE
REGISTRATION STATEMENT BECOMES EFFECTIVE. THIS PROSPECTUS
SHALL NOT CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY
SALE OF THESE SECURITIES IN ANY STATE IN WHICH SUCH OFFER,
SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO REGISTRATION
OR QUALIFICATION UNDER THE SECURITIES LAWS OF
ANY SUCH STATE.
PRELIMINARY PROSPECTUS
665,000 Shares
POINTE FINANCIAL CORPORATION
Common Stock
All of the 665,000 shares of common stock, par value $.01 per share
(the "Common Stock"), offered hereby (the "Offering") are being sold
by Pointe Financial Corporation, a Florida corporation (the
"Company"), and are being acquired by the Underwriters from the
Company as newly issued shares of Common Stock. It is currently
estimated that the initial offering price for each share will be
between $14.00 and $16.00.
The Company intends to apply for quotation of the Common Stock on
The Nasdaq Stock Market's National Market ("Nasdaq") under the
symbol "PNTE." Prior to this Offering, there has been no public
trading market for the Common Stock and there can be no assurance
that an established and liquid market for the Common Stock will
develop. The initial offering price of the Common Stock has been
determined through negotiations between the Company and the
Underwriters. See "Underwriting."
THE SHARES OF COMMON STOCK OFFERED HEREBY ARE NOT SAVINGS
OR DEPOSIT ACCOUNTS AND ARE NOT INSURED BY THE FEDERAL
DEPOSIT INSURANCE CORPORATION, THE BANK INSURANCE FUND OR
ANY OTHER GOVERNMENT AGENCY.
See "Risk Factors" beginning on page 8 hereof for a discussion of
certain factors that should be considered by prospective purchasers
of shares of Common Stock.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR
HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF
THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
<TABLE>
<CAPTION>
Price Underwriting Proceeds to
to Public Discount<F1> Issuer<F2>
<S> <C> <C> <C>
Per Share $ $ $
Total<F3> $ $ $
<FN>
<F1> The Company has agreed to indemnify the Underwriters against
certain liabilities, including liabilities under the Securities Act
of 1933, as amended (the "Securities Act"). See "Underwriting."
<F2> Before deducting expenses of the offering payable by the
Company, estimated at $217,520.
<F3> The Company has granted the Underwriters a 30-day option to
purchase up to 99,750 additional shares of Common Stock, on the
same terms and conditions as set forth above, solely to cover over-
allotments, if any. If such option is exercised in full, the total
Price to Public, Underwriting Discount and Proceeds to Company will be
approximately $______, $______and $______, respectively.
See "Underwriting."
</FN>
</TABLE>
The shares of Common Stock to be distributed to the public are
offered by the Underwriters, subject to prior sale, when, as and if
received and accepted by the Underwriters, subject to approval of
certain legal matters by counsel for the Underwriters and certain
other conditions. The Underwriters reserve the right to withdraw
or cancel such offer and to reject orders in whole or in part. It is
expected that delivery of the certificates for the shares of Common
Stock will be made against payment thereon in New York, New York
on or about ______________, 1998.
Keefe, Bruyette & Woods, Inc. McGinn, Smith & Co., Inc.
The date of this Prospectus is _____________________, 1998
CERTAIN PERSONS PARTICIPATING IN THIS OFFERING MAY ENGAGE IN
TRANSACTIONS THAT STABILIZE, MAINTAIN, OR OTHERWISE AFFECT
THE PRICE OF THE COMMON STOCK OFFERED HEREBY. SUCH
TRANSACTIONS MAY INCLUDE STABILIZING THE MARKET PRICE OF THE
COMMON STOCK, THE PURCHASE OF COMMON STOCK TO COVER
SYNDICATE SHORT POSITIONS AND THE IMPOSITION OF PENALTY BIDS.
FOR A DESCRIPTION OF THESE ACTIVITIES, SEE "UNDERWRITING."
PROSPECTUS SUMMARY
The following is a summary of certain information contained
elsewhere in this Prospectus. This summary is provided for
convenience; it should not be considered complete and is qualified
in its entirety by reference to the more detailed information and the
Consolidated Financial Statements (including the notes thereto)
contained elsewhere in this Prospectus. Unless otherwise indicated,
all share and per share information has been adjusted to give effect
to (i) a three-for-two Common Stock split effected in the form of
a stock dividend issued to shareholders of record as of February 27,
1998 and (ii) the conversion of all outstanding shares of the
Company's Series A Preferred Stock (the "Preferred Stock") into
shares of Common Stock, which conversion will occur at or
immediately preceding the closing of this offering. Cross references
in this summary are to captions appearing in the body of this
Prospectus. Except as otherwise noted, all information contained in
this Prospectus assumes the underwriters' over-allotment option is
not exercised.
The Company
General
Pointe Financial Corporation, a Florida corporation (the "Company"),
is a bank holding company headquartered in Boca Raton, Florida. As
of December 31, 1997, the Company had total assets of $147.840
million, net loans of $105.653 million, total deposits of $124.995
million and total shareholders' equity of $13.845 million. The
Company had net income of $914 thousand for 1997. All of the
Company's net income is derived from the operation of its bank
subsidiary, Pointe Bank, a Florida state-chartered commercial bank
(the "Bank") with three full service banking facilities located in
Boca Raton (Palm Beach County), Pembroke Pines (Broward County)
and Aventura (Miami-Dade County), Florida. The Bank also has two
remote ATMs located in Boca Raton and Pembroke Pines. All of the
Bank's ATMs are members of international networks. The Bank
provides a full range of banking services catering to small and
middle sized businesses, professionals, and individuals in Palm
Beach, Broward and Miami-Dade Counties, Florida.
The strategy of the Company is to take advantage of the economic
vitality of its market by providing quality community banking
services to its customers. The market for financial services in south
Florida has been robust throughout the recent past. Based on
information provided by the Bureau of Economic and Business
Research, University of Florida, Broward and Palm Beach counties
rank in the top 10 counties in Florida in per capita income and
economic growth per county. Also, the two counties represent,
respectively, 6.81% and 9.66% of the population of Florida.
Additionally, the Bank is benefitting from the high degree of merger
consolidation in its market. According to the Florida Bankers
Association and other industry sources, at year-end 1997 over 40%
of the deposits in Florida have changed hands through acquisition
during the past five years and 81% of Florida bank deposits were
controlled by bank holding companies headquartered outside of
Florida. This has created a favorable operating environment for
community banks that provide personalized services to local
businesses and consumers. Management believes that the larger
banks in the Company's markets have increased the cost of certain
banking services and have not stressed personal service to the small
businesses and professionals who are the Company's targeted
clients. The Company markets its products and services to these
customers as a community banking alternative to the style of
banking exhibited by large out of state bank holding companies that
operate in Florida.
The Company was incorporated under the laws of the State of Florida
on September 29, 1993 for the dual purpose of serving as a holding
company for Pointe Federal Savings Bank, a federally chartered
thrift (the "Thrift"), and to facilitate the acquisition of the Bank,
then known as Flamingo Bank, in mid-1994. Both the Bank and the
Thrift were established in the mid-1980's. The Thrift, headquartered
in Boca Raton, had been a mortgage banking thrift highly focused on
residential mortgage lending. The Bank had focused on small
business commercial lending, with emphasis on originating Small
Business Administration ("SBA") guaranteed loans.
In late 1994, the Board of Directors of the Company, assisted by R.
Carl Palmer, Jr. on a consulting basis, adopted a Strategic Plan
which called for a dramatic change in focus, shifting from the
transaction orientation of mortgage banking and SBA lending to the
relationship orientation of a community bank. R. Carl Palmer, Jr.
joined the Company and the Bank in March of 1995 as President and
Chief Executive Officer and began to assemble the Company's current
management team and to implement the Strategic Plan. Part of the
implementation of the Strategic Plan has been the streamlining of
the Company's operations and the transfer in-house of certain
support systems for which the Company had previously relied on
external sources.
For example, in mid-1995 the Company purchased a software system
developed by Information Technology, Inc. ("ITI") that is designed
to support the operations of community banks and is used by more than
300 banks throughout the United States. This system was initially
installed in a service bureau mode, and was brought in-house by the
Company in mid-1997. Similarly, and at the same time, the Company
transferred the servicing of its residential mortgage loan portfolio
back in-house. These two "conversions" have given the Company
access to a state-of-the-art software system to support a full-
range of community banking services. The transfer to an "in-house"
mode also gives the Company full control of the quality of service
that it delivers to its customers.
The Company further streamlined its operations through the merger
in April 1997 of the Thrift into the Bank. After the acquisition of
the Bank in mid-1994, the Company had been both a bank holding
company (subject to regulation by the Board of Governors of the
Federal Reserve System (the "Federal Reserve Board")) and a thrift
holding company (subject to regulation by the Office of Thrift
Supervision (the "OTS")). This was a very complex regulatory
environment for the Company. As a result of the merger of the
Thrift into the Bank, the Company is no longer subject to regulation
by the OTS, thus the merger allowed the Company to alleviate some
of its regulatory burdens without negatively impacting its ability
to service its customers.
This streamlining and the staged conversion to in-house systems has
enabled management of the Bank to concentrate on building a local
relationship banking business. With the addition of seasoned
managers with significant lending and operating experience, the
Bank has been very successful in transitioning into the relationship
management orientation called for in the 1994 Strategic Plan. As of
December 31, 1997, the Bank's assets and liabilities were derived
almost entirely from banking relationships. During the three years
ended December 31, 1997, the Company's deposit mix has changed
significantly. Demand, savings, NOW and money market accounts
grew from 30% of total deposits at December 31, 1995 to 48% of
total deposits at December 31, 1997. The emphasis on building
customer relationships has also resulted in a substantial growth in
service charge income, which increased from $315,000 in 1995, to
$364,000 in 1996 and $502,000 in 1997. During this same three
year period, management developed a successful expense control
program. Operating expenses have been consistently reduced, from
$7.360 million in 1995, to $6.847 million in 1996 and $5.471 million
in 1997.
Business Strategy
Growth Strategy
Management believes that the Company is now in a position to grow.
The Bank's three banking center locations establish a presence in
Miami-Dade, Broward and Palm Beach Counties. The population of
these three counties exceeds 4,000,000 people, and the market
continues to experience substantial growth. The Company's strategy
for the next three years is to continue to implement its Strategic
Plan and to build its network of banking center locations into
communities that are consistent with the Bank's focus on small
businesses, professionals and individuals. This expansion will be
implemented by the establishment of new banking centers, most
likely in facilities that have already been constructed by other
banks, but have become redundant as a result of consolidations. The
Company may also seek strategic acquisitions of smaller financial
institutions that will complement this growth strategy.
Implementation of Strategic Plan.
Beginning in 1994, pursuant to the Strategic Plan, major efforts
were undertaken to permit the Bank to become a full-service,
community banking organization. The significant elements of the
implementation of the Plan are:
Strengthening of Senior Management Team. The Company has
strengthened its senior management team by supplementing the
hiring of Mr. Palmer in 1995 with the hiring of Senior Vice
Presidents Beverly Chambers in 1995, and Dennis Reed in 1996, both
of whom are experienced bankers with whom Mr. Palmer had worked
at Southeast Banking Corporation and Naples Federal. In addition,
in 1997, the Company hired Bradley Meredith to serve as its new Chief
Financial Officer and Senior Vice President. The new management's
responsibilities include marketing, commercial lending, retail
banking, operations, mortgage lending, accounting and finance.
Building Full-Service Banking Relationships with Small Businesses.
The Company's strategy is to aggressively build its number of full-
service banking relationships by providing high quality, personal
service. In furtherance of this strategy, the Company has continued
to attract and hire seasoned, professional bankers with substantial
commercial lending and relationship management experience. The
consolidation occurring in the market is having two positive effects
that enhance the Company's implementation of its strategy. First,
a principal result of these consolidations is a steady flow of business
clients who have been alienated from other banks by reduced service
levels and higher prices. Second, seasoned bankers who previously
worked for the acquired banks are released, thus, enabling the
Company to hire the experienced professionals it seeks.
Reducing Focus on Residential Mortgage Lending. In mid-1996, the
Company decided to substantially reduce its focus on the residential
mortgage lending business by limiting its activities to originating
residential mortgages through three specialists, one located in each
of its three full service banking offices. The focus of these
specialists is to originate mortgages for individuals who will
become relationship customers of the Company.
Broadening the Offering of Products and Services. The Company has
continued to broaden its offering of products and services.
Particular emphasis has been placed on attracting transaction
deposits from all three targeted business segments: small
businesses, professionals and individuals. An example of the
Company's efforts to broaden its offering of products and services
occurred in early 1997 when the Company introduced its own credit
card. The credit card has been marketed only to existing clients and
those prospective clients that have the potential to develop into
full service relationships. Similarly, the merchant processing of credit
cards is being offered to business clients using the same marketing
strategy. The back-office support for this activity has been
outsourced to a nationally prominent firm that specializes in this
business. In early 1998, the Company will be introducing its own
debit card, with processing similarly outsourced through the same
firm.
Reinvesting in the Company's Communities. The Company is
committed to the communities it serves. As an example of its
proactive commitment to be involved in its communities, the
Company was awarded the lead deposit in the Ft. Lauderdale
(Broward County) Enterprise Zone Linked Deposit Program in a 1996
competitive bidding process. Municipal deposits, provided by the
State of Florida, Broward County and the City of Ft. Lauderdale, were
placed with three banks which established programs to match those
funds to make loans to small businesses within the zone, an area
targeted by the State of Florida for economic revitalization.
Management of the Company sees this program as consistent with
its mission to actively provide credit and other financial services
to small and medium sized businesses as well as stimulate economic
growth in the zone.
Concentrating on Professionals. The Company has concentrated its
marketing and business development efforts on the professionals
who serve both the businesses and individuals in its markets. The
attorneys, accountants and doctors who are within the geographic
reach of the Company's banking center locations are both good
potential customers and excellent sources of business referrals.
Reducing Expenses. Management has focused on reducing expenses as
a percentage of average assets as it seeks to improve its operating
efficiency, During the last three years, operating expenses have
declined from $7.360 million in 1995 to $6.847 million in 1996 to
$5.471 million in 1997.
Converting to New Operating System. Following a full review of
operating and software support systems, a decision was made to
convert to the ITI system throughout the organization, in a two
stage process. The Bank and then the Thrift sequentially converted,
in a service bureau mode, to the ITT system in late 1995 and early
1996. ITI's parent, FiServe, Inc., managed the service bureau for
a planned eighteen month period during which time the Company and
its management became thoroughly familiar and comfortable with
the operating system. Also during this time, the Company was able
to hire a number of senior operations officers to manage the
Company's operations, loan administration and controller
responsibilities. Thus, the mid-1997 conversion to bring the ITI
system in-house was successful, due principally to the efforts of
the Company's operating group who had considerable prior experience
with the ITI system.
The principal offices of the Company and the Bank are located at
21845 Powerline Road, Boca Raton, Florida 33433 and their
telephone number is (561) 368-6300.
<TABLE>
<CAPTION>
The Offering
<S> <C>
Common Stock offered by the Company 665,000 shares
Common Stock outstanding before the Offering 1,372,308 shares<F1><F2>
Common Stock outstanding after the Offering 2,037,308 shares<F1><F2>
Use of Proceeds The Company intends to
contribute the majority of
the net proceeds from the
Offering to the
Bank. The Bank expects to
use the net proceeds to
fund branch expansion and
to support growth in its
loan and securities
portfolios. The Company
intends to retain a portion
of the proceeds
for general corporate
purposes, possible future
acquisitions and
capital contributions to
existing and possible future
subsidiaries of
the Company. See
"Use of Proceeds."
Risk Factors See "Risk Factors" for a
discussion of
certain factors that should
be considered by each
prospective investor.
Proposed Nasdaq Symbol "PNTE"
<FN>
<F1> Includes 122,323 shares of Common Stock assumed to be issued
upon the conversion of all outstanding shares of Preferred Stock.
Does not include 250,281 shares of Common Stock reserved for
issuance upon the exercise of options granted under the Company's
stock option plan as of February 28, 1998. See "Management -
Employee Stock Option Plan."
<F2> Upon consummation of this Offering, 30.60% of the issued and
outstanding shares of Common Stock of the Company will be held by
the Company's executive officers and directors, assuming
conversion of all outstanding shares of Preferred Stock and the
exercise of all options held by the Company's executive officers and
directors.
</FN>
</TABLE>
<TABLE>
SUMMARY CONSOLIDATED FINANCIAL DATA
<CAPTION>
The following summary consolidated financial data of the Company
is derived from the Selected Consolidated Financial Data appearing
elsewhere in this Prospectus, and should be read in conjunction with
the Consolidated Financial Statements of the Company and the Notes
thereto and the information contained in "Management's Discussion
and Analysis of Financial Condition and Results of Operations."
At or For the Year Ended December 31,
1997 1996 1995 1994 1993
Income Statement Data: (Dollars in thousands, except per share figures)
<S> <C> <C> <C> <C> <C>
Total interest income $ 11,932 12,186 14,690 11,966 9,879
Total interest expense 6,329 7,616 9,919 7,282 6,207
Net interest income 5,603 4,570 4,771 4,684 3,672
Provision for loan losses 80 185 336 75 120
Net interest income
after provision
for loan losses 5,523 4,385 4,435 4,609 3,552
Noninterest income 1,412 2,434 1,922 2,887 4,956
Noninterest expense before SAIF
Recapitalization Expense<F1> 5,471 6,847 7,360 6,273 5,729
SAIF Recapitalization Expense<F1> - - 926 - - - - - -
Earnings (loss) before
income taxes 1,464 (954) (1,003) 1,223 2,779
Income taxes (benefit) 550 (355) (376) 458 1,021
Net earnings (loss) $ 914 (599) (627) 765 1,758
Without SAIF Assessment<F1>
Net earnings (loss) $ 914 (18) (627) 765 1,758
Per Share Data<F2>:
Earnings (loss) per share:
Basic $ .68 (.52) (.51) .72 2.07
Diluted $ .62 (.52) (.51) .72 2.07
Without SAIF Assessment<F1>
Earnings (loss) per share:
Basic $ .68 (.01) (.51) .72 2.07
Diluted $ .62 (.01) (.51) .72 2.07
Weighted average common
shares outstanding:
Basic 1,224,441 1,219,092 1,219,092 1,062,500 849,275
Diluted 1,346,637 1,219,092 1,219,092 1,062,500 849,275
Total common shares outstanding
at end of period<F2>,<F4> 1,247,592 1,219,092 1,219,092 1,219,092 849,627
Book value per share<F2>,<F4> $ 10.23 9.54 10.27 10.27 10.36
Balance Sheet Data<F6>:
Cash and cash equivalents $ 2,575 6,663 10,212 5,857 8,009
Securities 32,079 42,790 48,542 54,674 32,639
Loans 105,653 90,973 104,677 123,048 97,183
Loans held for sale 4,443 4,396 18,561 6,697 19,329
All other assets 3,090 6,436 11,415 11,357 5,670
Total assets $ 147,840 151,258 193,407 201,633 162,830
Deposits 124,995 112,498 142,673 164,087 107,505
Other borrowings 6,191 23,746 33,215 18,003 39,867
All other liabilities 2,809 2,593 5,005 7,027 6,655
Stockholders' equity 13,845 12,421 12,514 12,516 8,803
Total liabilities and
stockholders' equity $ 147,840 151,258 193,407 201,633 162,830
Average Balance Sheet Data:
Total assets $ 151,209 158,572 200,897 188,067 157,221
Securities 38,200 41,068 52,045 56,840 29,807
Loans 103,193 98,072 131,023 125,460 114,552
Total deposits 119,377 115,718 159,088 135,426 108,066
Other borrowings 16,879 28,348 25,749 32,685 38,232
Stockholders' equity 12,982 11,519 12,515 10,963 7,912
Performance Ratios:
Return on average assets .60% (.38%) (.31%) .41% 1.12%
Return on average equity 7.04% (5.20%) (5.01%) 6.98% 22.22%
Return on average equity<F4> 7.56% (5.37%) (5.01%) 6.98% 22.22%
Interest rate spread during
the period<F3> 3.25% 2.72% 2.18% 1.98% 2.07%
Net interest margin 3.91% 3.15% 2.50% 2.51% 2.39%
Noninterest expense to
average assets 3.62% 4.90% 3.66% 3.34% 3.64%
Efficiency ratio<F5> 78.31% 112.42% 109.98% 82.53% 69.63%
Asset Quality Ratios<F6>:
Nonperforming loans to
total loans 2.34% 1.60% 2.09% .77% 1.02%
Nonperforming loans, and
foreclosed real
estate as a percentage
of total assets 1.76% 1.15% 1.15% .54% .72%
Allowance for loan losses
as a percentage
of total loans .80% .85% .79% .42% .38%
Allowance for loan losses
as a percentage
of nonperforming loans 33.97% 52.97% 37.74% 55.17% 37.20%
Net charge-offs as a percentage
of average loans .01% .25% .02% .03% .05%
Capital ratios<F6>:
Company
Total capital to risk
weighted assets 16.02% 17.58% 14.09% 13.75% --
Tier I capital to risk
weighted assets 15.09% 16.52% 13.18% 13.19% --
Tier I capital to average assets 9.10% 8.04% 6.02% 6.66% --
Bank<F7>
Total capital to risk
weighted assets 16.00% 15.88% 17.53% 22.87% --
Tier I capital to risk
weighted assets 15.06% 14.67% 15.66% 22.14% --
Tier I capital to average assets 8.95% 8.69% 10.53% 13.57% --
Savings Bank<F8>
Tangible -- 8.25% 6.00% 5.30% 5.39%
Core -- 8.25% 6.00% 5.30% 5.39%
Risk-based -- 18.32% 12.77% 12.40% 12.26%
Others<F6>:
Total number of offices 3 3 3 3 1
Full-service banking offices 3 3 3 3 1
<FN>
<F1> The Bank was subject to a one-time special assessment that
was paid by all financial institutions insured by the SAIF in 1996.
The Bank's pretax assessment was $926,000 ($581,000 after
taxes).
<F2> All per share information is presented to reflect a three-for-two
stock split effective February 1998.
<F3> Difference between weighted-average yield on all interest-
earning assets and weighted-average rate on all interest-bearing
liabilities.
<F4> Excludes Common Stock into which the Preferred Stock is
convertible.
<F5> Calculated by dividing total noninterest expenses by net
interest income plus noninterest income excluding securities gains
and losses.
<F6> At period end.
<F7> The Bank was acquired in 1994.
<F8> Represents the capital ratios of the Thrift prior to its merger
into the Bank in 1997.
</FN>
</TABLE>
RISK FACTORS
An investment in the Common Stock offered hereby involves a high
degree of risk, including the risks described below. In addition to
the other information contained herein, the following factors should be
considered carefully in evaluating the Company before purchasing
the Common Stock offered hereby. Information contained in this
Prospectus contains "forward-looking statements" which can be
identified by the use of forward-looking terminology such as
"believes," "expects," "may," "will," "should," "could," "intent,"
"estimated," "projected," "contemplated" or "anticipates" or the
negative thereof or other variations thereon or comparable
terminology. No assurance can be given that the future results
covered by the forward-looking statements will be achieved. These
statements, by their nature, involve substantial risks and
uncertainties, certain of which are beyond the Company's control.
The following factors and other factors described elsewhere in this
Prospectus could cause actual experience to vary materially from
the future results covered in such forward-looking statements.
Other factors, such as regional and national economic conditions,
changes in market interest rates, credit risks of lending activities,
and competition and regulatory factors, could also cause actual
experience to vary materially from the matters covered in such
forward-looking statements.
Exposure to Local and Regional Economic Conditions
The Company's success is dependent to a significant extent upon
general economic conditions in Florida, particularly south Florida.
General economic conditions include such factors as the south
Florida real estate market, inflation, recession, unemployment and
other factors beyond the Company's control. The south Florida
economy is susceptible to adverse effects resulting from adverse
conditions in the south Florida real estate markets, a decline in
tourism, or adverse economic conditions or recession in the national
economy. Economic recession over a prolonged period or other
economic dislocation in south Florida could cause increases in
nonperforming assets, thereby causing operating losses, impairing
liquidity and eroding capital. There can be no assurance that future
adverse changes in the Florida economy would not have a material
adverse effect on the Company's financial condition, results of
operations or cash flows.
Interest Rate Risk
The Company's earnings depend to a great extent on "rate
differentials," which are the differences between interest income
that the Company earns on interest-bearing assets, such as loans
and investments, and the interest expense paid on interest-bearing
liabilities, such as deposits and other borrowings. Financial
institutions, including the Bank, are affected by changes in general
interest rate levels. Fluctuations in interest rates are not
predictable or controllable. Interest rates are highly sensitive to
many factors which are beyond the Company's control, including
general economic conditions and the policies of various government
and regulatory authorities. For example, actions taken by Federal
Reserve Board can lead to changes in interest rates, which affect
the Company's interest income, interest expense and investment
portfolio. The nature, timing and effect of any future changes in
federal monetary and fiscal policies on the Company and its results
of operations are not predictable. From time to time, maturities of
assets and liabilities are not balanced, and a rapid increase or
decrease in interest rates could have a material adverse effect on
the net interest margin and results of operations of the Company.
There can be no assurance that the Company will not experience a
material adverse effect on its net interest income in a changing rate
environment. See "Management's Discussion and Analysis of
Financial Condition and Results of Operations -- For the Years Ended
December 31, 1997, 1996 and 1995 - Interest Rate Sensitivity and
Liquidity."
Competition in the Bank's Market Areas
Most of the financial institutions in the Bank's market areas have
been in existence for significantly longer periods of time than the
Bank and are better established in their market areas. Many of such
competitors are larger in size and possess substantially greater
financial and other resources than the Bank. There is currently a
trend toward consolidation of the banking industry, which may make
it more difficult for smaller banks to operate profitability. There
can be no assurance that the Bank will be able to continue to
compete successfully against larger institutions. See "BUSINESS--
Competition."
Regulation and Supervision
Bank holding companies and banks operate in a highly regulated
environment and are subject to extensive supervision and
examination by several federal and state regulatory agencies. The
Company is subject to the Bank Holding Company Act of 1956, as
amended (the "BHC"), and to regulation and supervision by the
Federal Reserve Board. The Bank, as a Florida state bank, is subject
to regulation and supervision by the Florida Department of Banking
and Finance and, as a result of the insurance of its deposits, by
the Federal Deposit Insurance Corporation ("FDIC"). These regulations
are intended primarily for the protection of depositors and
customers, rather than for the benefit of investors. The Company and
the Bank are subject to changes in federal and state laws, as well
as changes in regulations and governmental policies, income tax laws
and accounting principles. The effects of any potential changes
cannot be predicted but could adversely affect the business and
operations of the Company and the Bank in the future. See
"Regulation and Supervision."
The Federal Reserve Board has adopted a policy that requires a bank
holding company such as the Company to serve as a source of
financial strength to its banking subsidiaries. The Federal Reserve
Board has required bank holding companies to contribute cash to
their troubled bank subsidiaries based upon this "source of
strength" policy, which could have the effect of decreasing funds
available for distributions to shareholders. In addition, a bank
holding company in certain circumstances could be required to
guarantee the capital plan of an undercapitalized banking subsidiary.
See "Regulation and Supervision."
Dependence on Key Management Personnel
The Company's success depends to a significant extent upon the
performance of its executive officers, the loss of any of whom could
have a materially adverse effect on the Company. The Company has
not, however, entered into employment agreements with, or obtained
"key man" insurance for, its executive officers. The Company
believes that its future success will depend in large part upon its
ability to retain such personnel; however, there can be no assurance
that the Company will be successful in doing so.
Restrictions on Ability to Pay Dividends
The Company has not paid cash dividends on the Common Stock and at
the present time the Company does not foresee paying cash dividends
to shareholders and intends to retain all earnings to fund the growth
of the Company and the Bank. Any declaration and payment of
dividends on the Common Stock will depend upon the earnings and
financial condition of the Company, liquidity and capital
requirements, the general economic and regulatory climate, the
Company's ability to service any equity or debt obligations senior
to the Common Stock and other factors deemed relevant by the
Company's Board of Directors. It is the policy of the Federal Reserve
Board that bank holding companies should pay cash dividends on
common stock only out of income available over the past year and
only if prospective earnings retention is consistent with the
organization's expected future needs and financial condition. The
policy provides that bank holding companies should not maintain a
level of cash dividends that undermines the bank holding company's
ability to serve as a source of strength to its banking subsidiaries.
The Company's principal source of funds to pay dividends on the
shares of Common Stock will be cash dividends that the Company
receives from the Bank. The payment of dividends by the Bank to the
Company is subject to certain restrictions imposed by federal and
state banking laws, regulations and authorities. See "Regulation
and Supervision."
The federal banking statutes prohibit federally insured banks from
making any capital distributions (including a dividend payment) if,
after making the distribution, the institution would be
"undercapitalized" as defined by statute. In addition, the relevant
federal regulatory agencies also have the authority to prohibit an
insured bank from engaging in an unsafe or unsound practice, as
determined by the agency, in conducting an activity. The payment of
dividends could be deemed to constitute such an unsafe and unsound
practice, depending on the financial condition of the Bank.
Regulatory authorities could impose administratively stricter
limitations on the ability of the Bank to pay dividends to the
Company if such limits were deemed appropriate to preserve certain
capital adequacy requirements. See "Management's Discussion and
Analysis of Financial Condition and Results of Operations - Capital
Resources" and "Regulation and Supervision."
Concentration of Ownership
After the consummation of the Offering, the executive officers and
directors of the Company will beneficially own 30.60% of the
outstanding shares of Common Stock, and approximately 29.26% of
such shares of Common Stock if the Underwriters' over-allotment
option is fully exercised. Accordingly, these executive officers and
directors will be able to influence, to a significant extent, the
outcome of all matters required to be submitted to the Company's
shareholders for approval, including decisions relating to the
election of directors of the Company, the determination of day-to-
day corporate and management policies of the Company and other
significant corporate transactions. See "Management," "Security
Ownership of Certain Beneficial Owners and Management" and
"Description of Capital Stock."
Year 2000 Compliance
Almost all of the Company's operations are supported by accounting
and recordkeeping computerized systems and are dependent on the
capability of software applications and operating systems to
function properly in the year 2000. The Company has an ongoing
program designed to ensure that its operational and financial
systems will not be adversely affected by year 2000 software
failures, due to processing errors arising from calculations using
the year 2000 date. Based on current estimates, the Company
expects to incur expenses of $50,000 over the next two years on its
program to redevelop, replace, or repair its computer applications
to make them "year 2000 compliant." While the Company believes it is
doing everything technologically possible to assure year 2000
compliance, it is to some extent dependent upon vendor cooperation.
The Company is requiring its computer system and software vendors
to represent that the products provided are, or will be, year 2000
compliant, and has planned a program of testing for compliance.
While the Company believes that all essential computer applications
will be year 2000 compliant and that the costs associated with year
2000 compliance will not be material to the Company, any year 2000
compliance failure could result in additional expense to the Company.
No Prior Public Market; Volatility of Stock Price
Before the Offering, there has been no public market for the Common
Stock. The initial public offering price will be determined through
negotiations between the Company and the Representatives of the
Underwriters based on several factors that may not be indicative of
future market prices. See "Underwriting" for a discussion of the
factors to be considered in determining the initial public offering
price. Although the Company intends to apply to have the Common
Stock approved for inclusion on Nasdaq, there can be no assurance
that if the Common Stock is approved for inclusion that it will be
actively traded on such market or that, if active trading does
develop, it will be sustained.
Shares Eligible for Future Sale
Upon consummation of the Offering, the Company will have
2,037,308 shares of Common Stock outstanding (2,137,058 if the
over-allotment option granted to the Underwriters is exercised in
full). Of these shares, 665,000 shares (764,750 shares if the over-
allotment option granted to the Underwriters is exercised in full)
will be freely transferable without restriction or registration under
the Securities Act, unless purchased by persons deemed to be
"affiliates" (as that term is defined under the Securities Act) of
the Company. All of the remaining 1,372,308 shares of Common Stock
will be "restricted securities," as that term is defined in Rule 144
promulgated under the Securities Act. The Company and its executive
officers and directors and certain of the Company's existing
shareholders have agreed that they will not sell or otherwise
transfer any shares of Common Stock for 180 days after the Offering
without the prior written consent of the Representatives. Future
sales of substantial amounts of Common Stock in the public market,
or the availability of such shares for future sale, could impair the
Company's ability to raise capital through an offering of securities
and may adversely affect the then-prevailing market prices. See
"Shares Eligible for Future Sale."
Anti-Takeover Provisions
Certain provisions of the Company's Articles of Incorporation and
Bylaws could delay or frustrate the removal of incumbent directors
and could make a merger, tender offer or proxy contest involving the
Company more difficult, even if such events could be perceived as
beneficial to the interests of the stockholders. For example, the
Company's Articles of Incorporation provide for classes of
directors, whereby one-third of the members of the Board of
Directors are elected each year and each director of the Company is
to serve for a term of three years. In addition, options granted under
the Company's stock option plan provide for accelerated vesting of
such options in the event of a change in control of the Company.
These provisions could have the effect of discouraging or prohibiting
a future takeover attempt in which stockholders of the Company
might otherwise receive a substantial premium for their shares over
then-current market prices. See "Description of Capital Stock-
Certain Anti-Takeover Provisions."
Regulation of Control
Individuals or entities, alone or acting in concert with others, who
acquire 10% or more of any class of voting securities of the
Company are presumed to have acquired "control" of the Company
under the Change in Bank Control Act, which requires the prior
approval of the Federal Reserve Board for any such acquisition.
Entities, acting alone or through one or more other persons, seeking
to acquire, directly or indirectly, 25% or more (5% or more in the
case of an acquiror that is a bank holding company) of any class of
voting securities of, or otherwise to control, the Company are
required to obtain the prior approval of the Federal Reserve Board
under the BHC. Accordingly, prospective investors need to be aware
of and comply with these requirements in connection with any
purchase of shares of the Common Stock offered hereby.
THE COMPANY
General
Pointe Financial Corporation, a Florida corporation (the "Company"),
is a bank holding company headquartered in Boca Raton, Florida. As
of December 31, 1997, the Company had total assets of $147.840
million, net loans of $105.653 million, total deposits of $124.995
million and total shareholders' equity of $13.845 million. The
Company had net income of $914 thousand for 1997. All of the
Company's net income is derived from the operation of its bank
subsidiary, Pointe Bank, a Florida state-chartered commercial bank
(the "Bank") with three full service banking facilities located in
Boca Raton (Palm Beach County), Pembroke Pines (Broward County)
and Aventura (Miami-Dade County), Florida. The Bank also has two
remote ATMs located in Boca Raton and Pembroke Pines. All of the
Bank's ATMs are members of international networks. The Bank
provides a full range of banking services catering to small and
middle sized businesses, professionals, and individuals in Palm
Beach, Broward and Miami-Dade Counties, Florida.
The strategy of the Company is to take advantage of the economic
vitality of its market by providing quality community banking
services to its customers. The market for financial services in south
Florida has been robust throughout the recent past. Based on
information provided by the Bureau of Economic and Business
Research, University of Florida, Broward and Palm Beach counties
rank in the top 10 counties in Florida in per capita income and
economic growth per county. Also, the two counties represent,
respectively, 6.81% and 9.66% of the population of Florida.
Additionally, the Bank is benefitting from the high degree of merger
consolidation in its market. According to the Florida Bankers
Association and other industry sources, at year-end 1997 over 40%
of the deposits in Florida have changed hands through acquisition
during the past five years and 81% of Florida bank deposits were
controlled by bank holding companies headquartered outside of
Florida. This has created a favorable operating environment for
community banks that provide personalized services to local
businesses and consumers. Management believes that the larger
banks in the Company's markets have increased the cost of certain
banking services and have not stressed personal service to the small
businesses and professionals who are the Company's targeted
clients. The Company markets its products and services to these
customers as a community banking alternative to the style of
banking exhibited by large out of state bank holding companies that
operate in Florida.
The Company was incorporated under the laws of the State of Florida
on September 29, 1993 for the dual purpose of serving as a holding
company for Pointe Federal Savings Bank, a federally chartered
thrift (the "Thrift"), and to facilitate the acquisition of the Bank,
then known as Flamingo Bank, in mid-1994. Both the Bank and the
Thrift were established in the mid-1980's. The Thrift, headquartered
in Boca Raton, had been a mortgage banking thrift highly focused on
residential mortgage lending. The Bank had focused on small
business commercial lending, with emphasis on originating Small
Business Administration ("SBA") guaranteed loans.
In late 1994, the Board of Directors of the Company, assisted by R.
Carl Palmer, Jr. on a consulting basis, adopted a Strategic Plan
which called for a dramatic change in focus, shifting from the
transaction orientation of mortgage banking and SBA lending to the
relationship orientation of a community bank. R. Carl Palmer, Jr.
joined the Company and the Bank in March of 1995 as President and
Chief Executive Officer and began to assemble the Company's current
management team and to implement the Strategic Plan. Part of the
implementation of the Strategic Plan has been the streamlining of
the Company's operations and the transfer in-house of certain
support systems for which the Company had previously relied on
external sources.
For example, in mid-1995 the Company purchased a software system
developed by Information Technology, Inc. ("ITI") that is designed
to support the operations of community banks and is used by more than
300 banks throughout the United States. This system was initially
installed in a service bureau mode, and was brought in-house by the
Company in mid-1997. Similarly, and at the same time, the Company
transferred the servicing of its residential mortgage loan portfolio
back in-house. These two "conversions" have given the Company
access to a state-of-the-art software system to support a full-
range of community banking services. The transfer to an "in-house"
mode also gives the Company full control of the quality of service
that it delivers to its customers.
The Company further streamlined its operations through the merger
in April 1997 of the Thrift into the Bank. After the acquisition of
the Bank in mid-1994, the Company had been both a bank holding
company (subject to regulation by the Board of Governors of the
Federal Reserve System (the "Federal Reserve Board")) and a thrift
holding company (subject to regulation by the Office of Thrift
Supervision (the "OTS")). This was a very complex regulatory
environment for the Company. As a result of the merger of the Thrift
into the Bank, the Company is no longer subject to regulation by the
OTS, thus the merger allowed the Company to alleviate some of its
regulatory burdens without negatively impacting its ability to
service its customers.
This streamlining and the staged conversion to in-house systems has
enabled management of the Bank to concentrate on building a local
relationship banking business. With the addition of seasoned
managers with significant lending and operating experience, the
Bank has been very successful in transitioning into the relationship
management orientation called for in the 1994 Strategic Plan. As of
December 31, 1997, the Bank's assets and liabilities were derived
almost entirely from banking relationships. During the three years
ended December 31, 1997, the Company's deposit mix has changed
significantly. Demand, savings, NOW and money market accounts
grew from 30% of total deposits at December 31, 1995 to 48% of
total deposits at December 31, 1997. The emphasis on building
customer relationships has also resulted in a substantial growth in
service charge income, which increased from $315,000 in 1995, to
$364,000 in 1996 and $502,000 in 1997. During this same three year
period, management developed a very successful expense control
program. Operating expenses have been consistently reduced, from
$7.360 million in 1995, to $6.847 million in 1996 and $5.471 million
in 1997.
Business Strategy
Growth Strategy
Management believes that the Company is now in a position to grow.
The Bank's three banking center locations establish a presence in
Miami-Dade, Broward and Palm Beach Counties. The population of
these three counties exceeds 4,000,000 people, and the market
continues to experience substantial growth. The Company's strategy
for the next three years is to continue to implement its Strategic
Plan and to build its network of banking center locations into
communities that are consistent with the Bank's focus on small
businesses, professionals and individuals. This expansion will be
implemented by the establishment of new banking centers, most
likely in facilities that have already been constructed by other
banks, but have become redundant as a result of consolidations. The
Company may also seek strategic acquisitions of smaller financial
institutions that will complement this growth strategy.
Implementation of Strategic Plan
Beginning in 1994, pursuant to the Strategic Plan, major efforts
were undertaken to permit the Bank to become a full-service,
community banking organization. The significant elements of the
implementation of the Plan are:
Strengthening of Senior Management Team. The Company has
strengthened its senior management team by supplementing the
hiring of Mr. Palmer in 1995 with the hiring of Senior Vice
Presidents Beverly Chambers in 1995, and Dennis Reed in 1996, both
of whom are experienced bankers with whom Mr. Palmer had worked
at Southeast Banking Corporation and Naples Federal. In addition,
in 1997, the Company hired Bradley Meredith to serve as its new Chief
Financial Officer and Senior Vice President. The new management's
responsibilities include marketing, commercial lending, retail
banking, operations and mortgage lending, accounting and finance.
Building Full-Service Banking Relationships with Small Businesses.
The Company's strategy is aggressively to build its number of full-
service banking relationships by providing high quality, personal
service. In furtherance of this strategy, the Company has continued
to attract and hire seasoned, professional bankers with substantial
commercial lending and relationship management experience. The
consolidation occurring in the market is having two positive effects
that enhance the Company's implementation of its strategy. First,
a principal result of these consolidations is a steady flow of business
clients who have been alienated from other banks by reduced service
levels and higher prices. Second, seasoned bankers who previously
worked for the acquired banks are released, thus, enabling the
Company to hire the experienced professionals it seeks.
Reducing Focus on Residential Mortgage Lending. In mid-1996, the
Company decided to substantially reduce its focus on the residential
mortgage lending business by limiting its activities to originating
residential mortgages through three specialists, one located in each
of its three full service banking offices. The focus of these
specialists is to originate mortgages for individuals who will
become relationship customers of the Company.
Broadening the Offering of Products and Services. The Company has
continued to broaden its offering of products and services.
Particular emphasis has been placed on attracting transaction
deposits from all three targeted business segments: small
businesses, professionals and individuals. An example of the
Company's efforts to broaden its offering of products and services
occurred in early 1997 when the Company introduced its own credit
card. The credit card has been marketed only to existing clients and
those prospective clients that have the potential to develop into
full service relationships. Similarly, the merchant processing of credit
cards is being offered to business clients using the same marketing
strategy. The back-office support for this activity has been out-
sourced to a nationally prominent firm that specializes in this
business. In early 1998, the Company will be introducing its own
debit card, with processing similarly outsourced through the same
firm.
Reinvesting in the Company's Communities. The Company is
committed to the communities it serves. As an example of its
proactive commitment to be involved in its communities, the
Company was awarded the lead deposit in the Ft. Lauderdale
(Broward County) Enterprise Zone Linked Deposit Program in a 1996
competitive bidding process. Municipal deposits, provided by the
State of Florida, Broward County and the City of Ft. Lauderdale, were
placed with three banks which established programs to match those
funds to make loans to small businesses within the zone, an area
targeted by the State of Florida for economic revitalization.
Management of the Company sees this program as consistent with
its mission to actively provide credit and other financial services
to small and medium sized businesses as well as stimulate economic
growth in the zone.
Concentrating on Professionals. The Company has concentrated its
marketing and business development efforts on the professionals
who serve both the businesses and individuals in its markets. The
attorneys, accountants and doctors who are within the geographic
reach of the Company's banking center locations are both good
potential customers and excellent sources of business referrals.
Reducing Expenses. Management has focused on reducing expenses as
a percentage of average assets as it seeks to improve its operating
efficiency. During the last three years, operating expenses have
declined from $7.360 million in 1995 to $6.847 million in 1996 to
$5.471 million in 1997.
Converting to New Operating System. Following a full review of
operating and software support systems, a decision was made to
convert to the ITI system throughout the organization, in a two
stage process. The Bank and then the Thrift sequentially converted,
in a service bureau mode, to the ITT system in late 1995 and early
1996. ITI's parent, FiServe, Inc., managed the service bureau for
a planned eighteen month period during which time the Company and
its management became thoroughly familiar and comfortable with
the operating system. Also during this time, the Company was able
to hire a number of senior operations officers to manage the
Company's operations, loan administration and controller
responsibilities. Thus, the mid-1997 conversion to bring the ITI
system in-house was successful, due principally to the efforts of
the Company's operating group who had considerable prior experience
with the ITI system.
Management and Board Ownership
The Company's directors currently own 485,103 shares or 38.81% of
the issued and outstanding Common Stock. Giving effect to the
Offering, the conversion of all outstanding shares of Preferred
Stock, and the exercise of all options held by the Company's
executive officers and directors, the Company's executive officers
and directors would own 668,187 shares, or 30.60% of the issued
and outstanding Common Stock. The Company believes that this
ownership position gives management a significant incentive to
increase shareholder value.
Competition
The banking business is highly competitive, and the profitability
of the Company will depend upon the Company's ability to compete in
its market area. The Company competes with other commercial and
savings banks, savings and loan associations, credit unions, finance
companies, mutual funds, brokerage and investment banking firms,
asset-based nonbank lenders and certain other non-financial
institutions, including certain governmental organizations which
may offer subsidized financing at lower rates than those offered by
the Company. See "Risk Factors - Competition."
Employees
At December 31, 1997, the Company had 57 employees, of which 53
were full-time employees. None of the employees is represented by
a collective bargaining group, and the Company considers its
relations with its employees to be good. The Company provides
employee benefits customary in the financial institutions industry,
including group medical and life insurance, 401(k) plan, profit-
sharing plan and paid vacations. The Company also provides a stock
option plan for certain officers, directors and employees, pursuant
to which they may be granted options to purchase Common Stock of
the Company.
Properties
The Company conducts its operations from three leased facilities,
the largest of which is located at 21845 Powerline Road, Boca
Raton, Florida where it has leased 18,929 square feet of space for
its executive offices, the operations center and a banking center.
The lease expires in 2002 and may be renewed for one additional
five-year period. In addition, the Company has leased 5,719 square
feet of space at One S.W. 129th Avenue, Pembroke Pines, Florida for
a banking center. This lease expires on February 28, 2006.
The Bank also has a lease for a free-standing building containing
3,050 square feet of space and located at 2690 N.E. 203rd Street,
Aventura, Florida, as a full service banking center. The lease expires
in February 2000 and may be renewed for one five-year period.
Legal Proceedings
There are no material pending legal proceedings to which the
Company or the Bank is a party or of which any of their properties
are subject; nor are there material proceedings known to the
Company contemplated by any governmental authority; nor are there
material proceedings known to the Company, pending or
contemplated in which any director, officer or affiliate or any
proposed principal security holder of the Company, or any associate
of any of the foregoing is a party or has an interest adverse to the
Company or the Bank.
USE OF PROCEEDS
The net proceeds from the sale of Common Stock offered hereby,
based upon an assumed initial public offering price of $15.00 per
share, are estimated to be $9.059 million after deduction of the
underwriting discount and estimated expenses ($10.451 million if
the Underwriter's over-allotment option is exercised in full). The
Company intends to contribute the majority of the net proceeds to
the Bank. The Bank expects the proceeds to be used to fund branch
expansion and support growth in the loan and securities portfolio.
To the extent proceeds are allocated to the Company, the Company
intends to retain a portion of the proceeds for general corporate
purposes including, but not limited to, future acquisitions and
capital contributions to existing and future subsidiaries of the
Company. The Company presently has no agreements regarding future
acquisitions. The precise amounts and timing of the application of
cash proceeds will depend, among other things, upon the funding
requirements of the Bank and the availability of other funds. Pending
the application of net proceeds, the Company expects to invest the
net proceeds in short-term government or investment grade
obligations.
DIVIDEND POLICY
The Company has not paid any cash dividends on its Common Stock.
At the present time, the Company does not foresee paying cash
dividends to shareholders and intends to retain all earnings to fund
the growth of the Company and the Bank. The payment of dividends in
the future, if any, will depend upon earnings, capital levels, cash
requirements, the financial condition of the Company and the Bank,
applicable government regulations and policies and other factors
deemed relevant by the Company's Board of Directors, including the
amount of cash dividends payable to the Company by the Bank. The
principal source of income and cash flow for the Company, including
cash flow to pay cash dividends on the Common Stock, is dividends
from the Bank. The Bank will be restricted in its ability to pay
dividends under Florida banking laws and by regulations of the
Department. Under Florida law, a state bank may not pay dividends
from its capital. All dividends must be paid out of current net
profits then on hand plus retained net profits of the preceding two
years, after deducting bad debts, depreciation and other worthless
assets, and after making provision for reasonably anticipated future
losses on loans and other assets. Payments of dividends out of net
profits is further limited by Section 658.37, Florida Statutes, which
prohibits a bank from declaring a dividend on its shares of common
stock until its surplus equals its stated capital, unless there has
been transferred to surplus not less than 20% of a bank's net profits
for the preceding year (in the case of an annual dividend). Finally,
a state bank may not declare a dividend which would cause the capital
accounts of a bank to fall below the minimum amount required by
law, regulation, order or any written agreement with the Department
or any Federal regulatory agency. See "Regulation and Supervision
- - Regulation of the Bank - Payment of Dividends."
DILUTION
As of December 31, 1997, the tangible book value of the Common
Stock was $10.11 per share. "Tangible book value per share"
represents the amount of total tangible assets less total liabilities
divided by the number of shares of Common Stock outstanding. After
giving effect to the sale by the Company of 665,000 shares of
Common Stock offered hereby (after deducting the underwriting
discount and other estimated offering expenses to be paid by the
Company), the pro forma tangible book value of the Company as of
December 31, 1997 would have been $11.26 per share. This
represents an immediate increase in net tangible book value of $1.15
per share to current shareholders and an immediate dilution of $3.74
per share to new investors. The following table illustrates this per
share dilution.
<TABLE>
<CAPTION>
<S> <C>
Assumed price to public $ 15.00
Tangible book value per share before Offering<F1> 10.11
Increase per share attributable to new investors 1.15
Pro forma tangible book value per share after Offering 11.26
Dilution to new investors $ 3.74
<FN>
<F1> Assumes the conversion of all Preferred Stock as of December
31, 1997.
</FN>
</TABLE>
The foregoing computations do not take into account the possible
exercise of outstanding stock options granted under the Company's
stock option plan or the possible issuance of up to an additional
99,750 shares of Common Stock to new investors pursuant to the
exercise of an option granted by the Company to the Representatives
solely to cover over-allotments, if any, in connection with the
Offering. See "Underwriting." Options to purchase a total of 250,281
shares of Common Stock were outstanding under the Company's
stock option plan at February 28, 1998, of which 127,341 are
exercisable during 1998 at a weighted average exercise price of
$10.09 per share. If the shares subject to such outstanding options
under the Company's stock option plan were included in the
foregoing calculations, further dilution to new shareholders would
be incurred.
CAPITALIZATION
<TABLE>
<CAPTION>
The following table sets forth the consolidated capitalization of
the Company as of December 31, 1997, and as adjusted to give effect to
(i) the sale by the Company of 665,000 shares of Common Stock
offered hereby at an assumed initial public offering price of $15.00
per share and the related estimated net proceeds therefrom; (ii) the
issuance by the Company of 415,864 shares of Common Stock as a
result of the Company's three-for-two stock split on February 27,
1998; and (iii) the issuance by the Company of 121,761 shares of
Common Stock upon the conversion of all of the Company's
outstanding shares of Preferred Stock. The following data should be
read in conjunction with the Consolidated Financial Statements of
the Company contained elsewhere in this Prospectus.
December 31, 1997
(Dollars in thousands)
As
Actual Adjusted
<S> <C> <C>
Deposits $124,995 $124,995
Federal Home Loan Bank Advances $ 4,400 $ 4,400
Stockholders' equity
Preferred stock, $.01 par value, 1,000,000
shares authorized; 54,116 shares
outstanding 1 -
Additional paid-in capital, preferred 1,081 -
Common Stock, $.01 par value, 2,500,000
shares authorized; 831,728 shares
issued and outstanding (2,034,353shares
after the three-for- two
stock split, conversion of Preferred
Stock and the stock offering)<F1> 8 20
Additional paid-in capital, common 9,854 19,983
Retained earnings 3,039 3,039
Unrealized depreciation on securities
available for sale (138) (138)
Total Stockholders' Equity $ 13,845 $ 22,904
<FN>
<F1> Does not include 205,581shares of Common Stock reserved for
issuance upon the exercise of options granted under the Companys
stock option plan as of December 31, 1997. See "Management-
Employee Stock Option Plan."
</FN>
</TABLE>
<TABLE>
SELECTED CONSOLIDATED FINANCIAL DATA
<CAPTION>
The following Selected Consolidated Financial Data of the Company
should be read in conjunction with the Consolidated Financial
Statements of the Company, the information contained in
"Management's Discussion and Analysis of Financial Condition and
Results of Operations" and other financial information included
elsewhere in this Prospectus. The selected historical consolidated
financial data as of and for the three years ended December 31, 1997
are derived from the Company's Consolidated Financial Statements
which have been audited by Hacker, Johnson, Cohen & Grieb PA,
independent certified public accountants. The selected historical
consolidated financial data as of and for the two years ended
December 31, 1994 are derived from the Company's Consolidated
Financial Statements which have been audited by other independent
certified public accountants.
At or For the Year Ended December 31,
1997 1996 1995 1994 1993
Income Statement Data: (Dollars in thousands, except per share figures)
<S> <C> <C> <C> <C> <C>
Total interest income $ 11,932 12,186 14,690 11,966 9,879
Total interest expense 6,329 7,616 9,919 7,282 6,207
Net interest income 5,603 4,570 4,771 4,684 3,672
Provision for loan losses 80 185 336 75 120
Net interest income after
provision for loan losses 5,523 4,385 4,435 4,609 3,552
Noninterest income 1,412 2,434 1,922 2,887 4,956
Noninterest expense before SAIF
Recapitalization Expense<F1> 5,471 6,847 7,360 6,273 5,729
SAIF Recapitalization Expense<F1> - - 926 - - - - - -
Earnings (loss) before income taxes 1,464 (954) (1,003) 1,223 2,779
Income taxes (benefit) 550 (355) (376) 458 1,021
Net earnings (loss) $ 914 (599) (627) 765 1,758
Without SAIF Assessment<F1>
Net earnings (loss) $ 914 (18) (627) 765 1,758
Per Share Data<F2>:
Earnings (loss) per share:
Basic $ .68 (.52) (.51) .72 2.07
Diluted $ .62 (.52) (.51) .72 2.07
Without SAIF Assessment<F1>
Earnings (loss) per share:
Basic $ .68 (.01) (.51) .72 2.07
Diluted $ .62 (.01) (.51) .72 2.07
Weighted average common shares
outstanding:
Basic 1,224,441 1,219,092 1,219,092 1,062,500 849,275
Diluted 1,346,637 1,219,092 1,219,092 1,062,500 849,275
Total common shares outstanding
at end of period<F2>,<F4> 1,247,592 1,219,092 1,219,092 1,219,092 849,627
Book value per share<F2>,<F4> $ 10.23 9.54 10.27 10.27 10.36
Balance Sheet Data<F6>:
Cash and cash equivalents $ 2,575 6,663 10,212 5,857 8,009
Securities 32,079 42,790 48,542 54,674 32,639
Loans 105,653 90,973 104,677 123,048 97,183
Loans held for sale 4,443 4,396 18,561 6,697 19,329
All other assets 3,090 6,436 11,415 11,357 5,670
Total assets $ 147,840 151,258 193,407 201,633 162,830
Deposits 124,995 112,498 142,673 164,087 107,505
Other borrowings 6,191 23,746 33,215 18,003 39,867
All other liabilities 2,809 2,593 5,005 7,027 6,655
Stockholders' equity 13,845 12,421 12,514 12,516 8,803
Total liabilities and
stockholders' equity $ 147,840 151,258 193,407 201,633 162,830
Average Balance Sheet Data:
Total assets $ 151,209 158,572 200,897 188,067 157,221
Securities 38,200 41,068 52,045 56,840 29,807
Loans 103,193 98,072 131,023 125,460 114,552
Total deposits 119,377 115,718 159,088 135,426 108,066
Other borrowings 16,879 28,348 25,749 32,685 38,232
Stockholders' equity 12,982 11,519 12,515 10,963 7,912
Performance Ratios:
Return on average assets .60% (.38%) (.31%) .41% 1.12%
Return on average equity 7.04% (5.20%) (5.01%) 6.98% 22.22%
Return on average equity<F4> 7.56% (5.37%) (5.01%) 6.98% 22.22%
Interest rate spread during the
period<F3> 3.25% 2.72% 2.18% 1.98% 2.07%
Net interest margin 3.91% 3.15% 2.50% 2.51% 2.39%
Noninterest expense to average assets 3.62% 4.90% 3.66% 3.34% 3.64%
Efficiency ratio<F5> 78.31% 112.42% 109.98% 82.53% 69.63%
Asset Quality Ratios<F6>:
Nonperforming loans to total loans 2.34% 1.60% 2.09% .77% 1.02%
Nonperforming loans, and foreclosed real
estate as a percentage of total assets 1.76% 1.15% 1.15% .54% .72%
Allowance for loan losses as a percentage
of total loans .80% .85% .79% .42% .38%
Allowance for loan losses as a percentage
of nonperforming loans 33.97% 52.97% 37.74% 55.17% 37.20%
Net charge-offs as a percentage
of average loans .01% .25% .02% .03% .05%
Capital Ratios<F6>:
Company
Total capital to risk weighted assets 16.02% 17.58% 14.09% 13.75% --
Tier I capital to risk weighted assets 15.09% 16.52% 13.18% 13.19% --
Tier I capital to average assets 9.10% 8.04% 6.02% 6.66% --
Bank<F7>
Total capital to risk weighted assets 16.00% 15.88% 17.53% 22.87% --
Tier I capital to risk weighted assets 15.06% 14.67% 15.66% 22.14% --
Tier I capital to average assets 8.95% 8.69% 10.53% 13.57% --
Savings Bank<F8>
Tangible -- 8.25% 6.00% 5.30% 5.39%
Core -- 8.25% 6.00% 5.30% 5.39%
Risk-based -- 18.32% 12.77% 12.40% 12.26%
Others<F6>:
Total number of offices 3 3 3 3 1
Full-service banking offices 3 3 3 3 1
<FN>
<F1> The Bank was subject to a one-time special assessment that
was paid by all financial institutions insured by the SAIF in 1996.
The Bank's pre-tax assessment was $926,000 ($581,000 after
taxes).
<F2> All per share information is presented to reflect a three-for-two
stock split effective February 1998.
<F3> Difference between weighted-average yield on all interest-
earning assets and weighted-average rate on all interest-bearing
liabilities.
<F4> Excludes Common Stock into which the Preferred Stock is
convertible.
<F5> Calculated by dividing total noninterest expenses by net
interest income plus noninterest income excluding securities gains
and losses.
<F6> At period end.
<F7> The Bank was acquired in 1994.
<F8> Represents the capital ratios of the Thrift prior to its merger
into the Bank in 1997.
</FN>
</TABLE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF RESULTS
OF OPERATIONS AND FINANCIAL CONDITION
Management's Discussion and Analysis of Results of Operations and
Financial Condition analyzes the major elements of the Company's
statement of operations and balance sheets. This section should be
read in conjunction with the Company's Consolidated Financial
Statements and accompanying notes and other detailed information
appearing elsewhere in this Prospectus.
For the Years ended December 31, 1997, 1996 and 1995
Overview
For the year ended December 31, 1997, the Company had consolidated
net earnings of $914,000 or $.68 basic earnings per share ($.62
diluted earnings per share), compared to a consolidated net loss of
$599,000 or $.52 basic and diluted loss per share for 1996. The
consolidated net loss for the year ended December 31, 1996 included
the effect of the SAIF special assessment of $926,000 before taxes
($581,000 after taxes). The consolidated net loss for the year ended
December 31, 1995 was $627,000.
At December 31, 1997, the Company had total consolidated assets of
$147.840 million, a decrease of 2.26% over total assets of $151.258
million at December 31, 1996. During the year ended December 31,
1997 loans receivable increased $14.727 million (15.44%), while the
Company's portfolio of securities declined $10.711 million (25.03%)
to $32.079 million. The Company's deposits increased to $124.995
million as of December 31, 1997, from $112.498 million as of
December 31, 1996, an 11.11% increase. Other borrowings,
principally borrowings from the Federal Home Loan Bank (the
"FHLB"), were $6.191 million as of December 31, 1997, a decrease
of $17.555 million (73.93%) from December 31, 1996.
At December 31, 1996, the Company had total consolidated assets of
$151.258 million, a decrease of 21.79% over total assets of
$193.407 million at December 31, 1995. During the year ended
December 31, 1996, loans receivable decreased $27.869 million
(22.61%) to $95.369 million and the Company's portfolio of
securities declined $5.752 million (11.85%) to $42.790 million. The
Company's deposits decreased to $112.498 million at December 31,
1996 from $142.673 million at December 31, 1995. Other
borrowings, principally borrowings from the FHLB, were $23.746
million at December 31, 1996, a decrease of $9.469 million (28.51%)
from December 31, 1995.
Results of Operations
Net Interest Income
Net interest income represents the amount by which interest income
on interest-earning assets, including loans and securities, exceeds
interest expense incurred on interest-bearing liabilities, including
deposits and other borrowings. Net interest income is the principal
source of the Company's earnings. Interest rate fluctuations, as well
as changes in the amount and type of earning assets and liabilities,
combine to affect net interest income.
Net Interest Income 1997 versus 1996. Net interest income for the
year ended December 31, 1997 increased to $5.603 million from $
4.570 million in 1996, an increase of $1.033 million or 22.60%. This
resulted in a net interest margin of 3.91% and 3.15% and a net
interest spread of 3.25% and 2.72% for the years ended December 31,
1997 and 1996, respectively. The increase in the net interest margin
and net interest spread was primarily the result of a decrease in
the cost of interest-bearing liabilities to 5.07% for 1997 from 5.67%
for 1996.
The increase in net interest income was driven almost exclusively
by lower cost of interest-bearing liabilities, which decreased to
$6.329 million in 1997, from $7.616 million in 1996 a decrease of
$1.287 million or 16.90%. This improvement was caused by a more
favorable mix of deposits. Lower costing average demand deposits,
savings and NOW deposits and money market deposits grew by $1.557
million (15.87%), $1.743 million (20.42%) and $7.774 million
(26.19%), respectively, from 1996 to 1997. This growth allowed the
Company to reduce the levels of higher-costing time deposits and
other borrowings by $7.415 million (10.95%) and $11.469 million
(40.46%), respectively, from 1996 to 1997. Management attributes
this improvement to its success in developing more full-service
banking relationships with its targeted business, professional and
individual clients. This allowed the Company to replace borrowings
and rate-driven time deposits with transaction deposit accounts.
The increase in net interest income was also positively impacted by
the increase in the ratio of average interest earning assets to
average interest bearing liabilities which improved to 1.15 at
December 31, 1997 from 1.08 at December 31, 1996. This resulted in
a substantial decline in the level of non-interest earning assets
to $7.731 million in 1997, from $13.362 million in 1996, a decrease of
$5.631 million or 42.14%.
Net Interest Income 1996 versus 1995. Net interest income for the
year ended December 31, 1996 decreased to $4.570 million, from
$4.771 million in 1995, a decrease of approximately $201,000 or
4.21%. This decline in net interest income was directly attributable
to a substantial decline in the Company's average total assets,
which decreased to $158.572 million from $200.897 million in 1995,
a decrease of $42.325 million or 21.07%. During 1996, the Company
embarked upon a program to use the proceeds from the decrease of
average loans and securities, which declined $32.951 million
(25.15%) and $10.977 million (21.09%), respectively, during 1996 to
reduce higher costing time deposits. Time deposits averaged $67.688
million in 1996, as compared to $121.708 million in 1995, a
decrease of $54.020 million or 44.38%. These changes in the balance
sheet resulted in a net interest margin of 3.15% and 2.50% and a net
interest spread of 2.72% and 2.18% for the years ended December 31,
1996 and 1995, respectively. The improved net interest margin and
net spread was primarily the result of improved yields on interest
earning assets, which were 8.39% for the year ended December 31,
1996 from 7.71% for the year ended December 31, 1995.
The following table sets forth for the periods indicated, information
regarding (i) the total dollar amount of interest and dividend income
of the Company from interest-earning assets and the resultant
average yields; (ii) the total dollar amount of interest expense on
interest-bearing liabilities and the resultant average cost; (iii)
net interest/dividend income; (iv) interest-rate spread; (v) net interest
margin; and (vi) ratio of average interest-earning asset to average
interest-bearing liabilities.
<TABLE>
<CAPTION>
Year Ended December 31,
1997 1996 1995
Interest Average Interest Average Interest Average
Average and Yield/ Average and Yield/ Average and Yield/
Balance Dividends Rate Balance Dividends Rate Balance Dividends Rate
(Dollars in thousands)
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Interest-earning
assets:
Loans<F1> $103,193 9,427 9.14% $ 98,072 9,001 9.18% $131,023 11,024 8.41%
Securities 38,200 2,402 6.29 41,068 2,872 6.99 52,045 3,256 6.26
Other interest-
earning assets<F2> 2,085 103 4.94 6,070 313 5.16 7,416 410 5.53
Total interest-
earning assets 143,478 11,932 8.32 145,210 12,186 8.39 190,484 14,690 7.71
Noninterest-earning
assets 7,731 13,362 10,413
Total assets $151,209 $158,572 $200,897
Interest-bearing
liabilities:
Savings and
NOW deposits 10,278 203 1.98 8,535 180 2.11 8,441 161 1.91
Money-market
deposits 37,457 1,731 4.62 29,683 1,381 4.65 23,568 1,084 4.60
Time deposits 60,273 3,434 5.70 67,688 4,253 6.28 121,708 6,987 5.74
Other borrowings 16,879 961 5.69 28,348 1,802 6.36 25,749 1,687 6.55
Total interest-
bearing liabilities 124,887 6,329 5.07 134,254 7,616 5.67 179,466 9,919 5.53
Demand deposits 11,369 9,812 5,371
Noninterest-bearing
liabilities 1,971 2,987 3,545
Stockholders' equity 12,982 11,519 12,515
Total liabilities
and stockholders'
equity $151,209 $158,572 $200,897
Net interest income $ 5,603 $ 4,570 $ 4,771
Interest-rate spread<F3> 3.25% 2.72% 2.18%
Net interest margin<F4> 3.91% 3.15% 2.50%
Ratio of average interest-
earning assets to
average interest-
bearing liabilities 1.15 1.08 1.06
<FN>
<F1> Includes nonaccrual loans.
<F2> Includes interest-bearing deposits, federal funds sold and
securities purchased under agreements to resell.
<F3> Interest rate spread represents the difference between the
weighted-average yield on interest-earning assets and the
weighted-average cost of interest-bearing liabilities.
<F4> Net interest margin is net interest income dividend by average
interest-earning assets.
</FN>
</TABLE>
The following table sets forth certain information regarding changes
in interest income and interest expense of the Company for the
periods indicated. For each category of interest-earning assets and
interest-bearing liabilities, information is provided on changes
attributable to (1) changes in rate (change in rate multiplied by
prior volume), (2) changes in volume (change in volume multiplied
by prior rate) and (3) changes in rate-volume (change in rate multiplied
by change in volume).
<TABLE>
<CAPTION>
Year Ended December 31,
1997 vs. 1996
Increase (Decrease) Due to
Rate/
Rate Volume Volume Total
(In thousands)
<S> <C> <C> <C> <C>
Interest earning assets:
Loans<F1> $ (42) 470 (2) 426
Securities (290) (200) 20 (470)
Other interest-earning
assets (13) (206) 9 (210)
Total (345) 64 27 (254)
Interest-bearing liabilities:
Deposits:
Savings and NOW deposits (12) 37 (2) 23
Money-market deposits (9) 362 (3) 350
Time deposits (396) (466) 43 (819)
Other borrowings (188) (729) 76 (841)
Total (605) (796) 114 (1,287)
Net change in net
interest income $ 260 860 (87) 1,033
Year Ended December 31,
1996 vs. 1995
Increase (Decrease) Due to
Rate/
Rate Volume Volume Total
(In thousands)
<S> <C> <C> <C> <C>
Interest earning assets:
Loans<F1> $ 1,001 (2,772) (252) (2,023)
Securities 384 (687) (81) (384)
Other interest-earning assets (28) (74) 5 (97)
Total 1,357 (3,533) (328) (2,504)
Interest-bearing liabilities:
Deposits:
Savings and NOW deposits 17 2 - 19
Money-market deposits 13 281 3 297
Time deposits 660 (3,101) (293) (2,734)
Other borrowings (50) 170 (5) 115
Total 640 (2,648) (295) (2,303)
Net change in net
interest income $ 717 (885) (33) (201)
<FN>
<F1> Includes loans on nonaccrual.
</FN>
</TABLE>
Provision for Loan Losses
The provision for loan losses is charged to earnings to bring the
total allowance to a level deemed appropriate by management and is
based upon historical experience, the volume and type of lending
conducted by the Bank, industry standards, the amounts of
nonperforming loans, general economic conditions, particularly as
they relate to the Bank's market areas, and other factors related
to the collectibility of the Bank's loan portfolio. The provision
decreased to $80,000 in 1997 from $185,000 in 1996, a decrease of
$105,000 or 56.76%, reflecting improved portfolio quality. The
provision decreased to $185,000 in 1996 from $336,000 in 1995, a
decrease of $151,000 or 44.94%.
Noninterest Income
Total noninterest income decreased to $1.412 million for the year
ended December 31, 1997 from $2.434 million reported in 1996, a
decrease of $1.022 million or 41.99%, principally due to a decrease
in net gain on sale of loans and loan servicing rights to $508,000
in 1997 from $1.179 million in 1996, and $365,000 in earnings from a
limited partnership during 1996, compared to no such amounts
during the comparable period in 1997. This decrease was the result
of management's focus on its three primary business lines, a shift
away from the wholesale mortgage business and the sale of the
limited partnership in late 1996. An increase in service charges on
deposit accounts of $138,000 from the year ended December 31,
1996 to the year ended December 31, 1997, was the result of
increased attention to relationship banking and core noninterest
income opportunities. The increase in other noninterest income is
partially related to additional product introductions such as
merchant card services which will improve noninterest income going
forward.
Total noninterest income increased to $2.434 million in 1996 from
$1.922 million in 1995, an increase of $512,000 or 26.64% primarily
due to an increase in the net gain on sale of loans of $488,000 during
the year ended December 31, 1996, when compared to 1995.
The following table presents for the period indicated the major
categories of noninterest income:
<TABLE>
<CAPTION>
Year Ended December 31,
1997 1996 1995
(In thousands)
<S> <C> <C> <C>
Noninterest income:
Service charges on deposit accounts $ 502 364 315
Gain on sale of loan servicing rights 29 131 192
Loan servicing fees 70 170 180
Net gains from sale of loans 479 1,048 560
Net realized gains on sale of
securities available for sale 29 91 1
Equity in earnings of
limited partnership - 365 507
Other 303 265 167
Total noninterest income $1,412 2,434 1,922
</TABLE>
Noninterest Expense
Total noninterest expense declined to $5.471 million for the year
ended December 31,1997 from $6.847 million for the year ended
December 31,1996, a decrease of $1.376 million or 20.10%. Salaries
and employee benefits declined to $2.657 million in 1997, from
$3.169 million in 1996, a decrease of $512,000 or 16.16%,
reflecting the change in the business plan to reduce activities in
mortgage banking, with its emphasis on origination and sales of
mortgage loans. The remaining items in noninterest expense
decreased to $2.814 million in 1997 from $3.678 million in 1996, a
decrease of $864,000 or 23.49%, as a result of management's focus
on all areas of expense to improve the Company's operating
efficiency.
Noninterest expense declined to $6.847 million for year ended
December 31,1996 from $7.360 million for the year ended December
31, 1995, a decrease of $513,000 or 6.97%, due primarily to
reductions in other expenses. These reductions were related to
amortized purchased servicing rights and expenses in the limited
partnership which were eliminated in 1996.
The following table presents for the periods indicated the major
categories of noninterest expense:
<TABLE>
<CAPTION>
Year Ended December 31,
1997 1996 1995
(In thousands)
<S> <C> <C> <C>
Noninterest expenses:
Salaries and employee benefits $2,657 3,169 3,165
Occupancy expense 1,100 1,251 1,169
Advertising and promotion 257 142 226
Loan servicing expense 36 150 88
Professional fees 157 286 225
Federal deposit insurance premiums 82 283 390
Data processing 403 428 275
Other 779 1,138 1,822
Noninterest expenses before SAIF
recapitalization assessment 5,471 6,847 7,360
SAIF recapitalization assessment - 926 -
Total noninterest expenses $5,471 7,773 7,360
</TABLE>
Provision (Credit) for Income Taxes
The provision for income taxes increased to $550,000 in 1997 from
a $355,000 credit during the year ended December 31, 1996. The
effective tax rate increased to 37.57% during the year ended
December 31, 1997 from 37.21% for the year ended December 31,
1996.
The credit for income taxes decreased to $355,000 during the year
ended December 31, 1996 from $376,000 during the year ended
December 31, 1995, a decrease of $ 21,000 or 5.59%. The effective
tax rate decreased to 37.21% for the year ended December 31, 1996
from 37.49% for the year ended December 31, 1995.
Financial Condition
Loan Portfolio
Total loans were $106.659 million at December 31, 1997, an
increase of $14.734 million or l6.03% from $91.925 million at
December 31, 1996. This increase is believed to be the result of the
Company's increased focus on relationship banking, featuring
professional, attentive and responsive service to customers' needs
both in residential mortgage lending and commercial lending to
middle market companies.
The following table summarizes the loan portfolio of the Company
by type of loan as of December 31, 1997, 1996, 1995, 1994 and 1993:
<TABLE>
<CAPTION>
At December 31,
1997 1996 1995 1994 1993
% of % of % of % of % of
Amount Total Amount Total Amount Total Amount Total Amount Total
(Dollars in thousands)
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Commercial $ 19,832 18.59% $ 16,711 18.18% $ 15,401 14.49% $ 11,645 9.34% $ 3,135 3.12%
Commercial
real estate 17,628 16.53 10,894 11.85 2,572 2.42 2,097 1.69 922 .92
Residential
real estate 61,827 57.97 60,716 66.05 86,971 81.80 110,005 88.26 96,093 95.54
Consumer 7,372 6.91 3,604 3.92 1,371 1.29 887 .71 428 .42
Total loans 106,659 100.00% 91,925 100.00% 106,315 100.00% 124,634 100.00% 100,578 100.00%
Less:
Deferred loan fees (158) (175) (71) (109) (92)
Undisbursed portion
of loans in process - - (727) (949) (2,921)
Allowance for
loan losses (848) (777) (840) (528) (382)
Loans, net $105,653 $ 90,973 $104,677 $123,048 $ 97,183
</TABLE>
The primary lending focus of the Company is on small and medium
sized commercial, residential mortgage and consumer loans. A
substantial portion of the Company's loan portfolio consists of
single-family residential mortgage loans collateralized by owner-
occupied properties located in the Company's market area. The
Company offers a variety of mortgage loan products, with both fixed
and adjustable rates. The loans are generally amortized over fifteen
to thirty years, although such loans often remain outstanding for
significantly shorter periods than their contractual terms.
Loans collateralized by single-family residential real estate
generally have been originated in amounts of no more than 80% of
appraised value. For loans in amounts greater than 80% of appraised
value, the Company generally requires mortgage insurance. For all
such loans, the Company requires mortgage title insurance and
hazard insurance. Of the mortgages originated, the Company
generally retains mortgage loans with variable rates or where the
borrower has a deposit relationship with the Company and sells
longer term, fixed-rate, non-relationship loans.
The Company offers a variety of commercial lending products
including term loans, lines of credit and fixed asset loans, including
real estate and equipment financing. A broad range of short- to
medium-term commercial loans, both collateralized and
uncollateralized, are made available to businesses for working
capital (including inventory and receivables), business expansion
(including acquisitions of real estate and improvements) and the
purchase of equipment. The purpose of the particular loan
determines its structure.
Generally, the Company's commercial loans are underwritten in the
Company's primary market area on the basis of the borrower's
ability to service such debt from income. As a general practice, the
Company takes as collateral a lien on any available real estate,
equipment or other assets. Working capital loans are primarily
collateralized by short-term assets whereas term loans are
primarily collateralized by long-term assets.
The Company's commercial mortgage loans are secured by liens on
real estate, typically have variable interest rates and amortize over
a ten to fifteen year period with balloon payments due at the end
of three to five years. In underwriting commercial mortgage loans,
consideration is given to the property's operating history, future
operating projections, current and projected occupancy, location and
physical condition. The underwriting analysis also includes credit
checks, appraisals, a review of the financial condition of the
borrower and generally full recourse to the owner.
A number of the Company's commercial loans are underwritten under
guidelines of the SBA loan guarantee programs. SBA loan
originations were $2.878 million for 1997, $2.329 million for 1996
and $4.261 million for 1995.
Consumer loans made by the Company include automobile loans, home
improvement loans, home equity lines of credit, personal loans
(collateralized and uncollateralized) and loans collateralized by
deposit accounts. The terms of these loans typically range from 12
to 84 months and vary based on the nature of the collateral and size
of the loan.
Total loans decreased to $91.925 million at December 31, 1996,
from $106.315 million at December 31, 1995, a decrease of $14.390
million, or 13.54%. The decrease was primarily the result of the
shift away from the transaction orientation of mortgage banking to
a relationship driven approach to the origination of loans. At
December 31, 1996, residential real estate loans were $60.716
million or 66.05% of total loans as compared to $86.971 million or
81.80% of total loan outstandings at December 31, 1995.
The following table reflects the contractual principal repayments
of the Company's loan portfolio at December 31, 1997:
<TABLE>
<CAPTION>
Residential
Commercial Mortgage Consumer
Loans Loans Loans Total
(In thousands)
<S> <C> <C> <C> <C>
Due within one year $14,595 2,052 2,734 19,381
Due after one through
five years 15,977 767 1,762 18,506
Due after five years 6,888 59,008 2,876 68,772
Total $37,460 61,827 7,372 106,659
</TABLE>
Of the $87.278 million in loans due after one year, 39.20% of such
loans have fixed rates of interest and 60.80% have adjustable rates.
The following table displays loan originations by type of loan and
principal reductions during the periods indicated:
<TABLE>
<CAPTION>
Year Ended December 31,
1997 1996 1995 1994 1993
(In thousands)
<S> <C> <C> <C> <C> <C>
Originations:
Commercial loans $ 19,720 1,085 676 1,610 1,092
Commercial real estate loans 8,360 3,205 1,214 - - - -
Residential real estate 10,507 7,480 5,528 35,436 40,662
Consumer loans 3,564 1,497 553 293 52
Total loans originated 42,151 13,267 7,971 37,339 41,806
Principal reductions (27,417) (27,657) (26,290) (13,283) (25,551)
Increase (decrease)
in gross loans $ 14,734 (14,390) (18,319) 24,056 16,255
</TABLE>
The originations noted in the table above exclude originations of
loans held for sale of $9.005 million, $51.533 million, and $55.650
million for periods ended December 31, 1997, 1996 and 1995,
respectively.
Nonperforming Assets
The Company has several procedures in place to assist it in
maintaining the overall quality of its loan portfolio. These
procedures include low individual lending limits for officers, an
independent credit analysis for all commercial credit relationships
over $100,000, Management Loan Committee approval for all
commercial credit relationships over $100,000, Board of Director
Loan Committee approval for all commercial and for most
residential credit relationships over $500,000, quality loan
documentation and a periodic loan review by an independent
consultant with considerable OCC experience. The Board of Directors
reviews all new and renewed loans on a monthly basis. The Company
also monitors its delinquency levels for any negative or adverse
trends. There can be no assurance, however, that the Company's loan
portfolio will not become subject to increasing pressures from
deteriorating borrower credit or general economic conditions.
The Company generally places a loan on nonaccrual status and ceases
accruing interest when loan payment performance is deemed
unsatisfactory. All loans past due 90 days, however, are placed on
nonaccrual status, unless the loan is both well collateralized and
in the process of collection. Cash payments received while a loan is
classified as nonaccrual are recorded as a reduction of principal
as long as doubt exists as to collection.
The Company has historically had strong asset quality. Although
nonperforming assets (nonaccrual loans and foreclosed real estate)
at December 31, 1997 increased to $2.601 million from $1.737
million at December 31, 1996, this increase was primarily
attributable to one residential real estate loan for $1.225 million
where the original loan to value was less than 60%. The collateral
is involved in a complex bankruptcy. A trustee has been appointed and
was recently granted permission to retain a broker to sell the
property. This action will accelerate the liquidation of the
collateral and management expects a full recovery.
The following table presents information regarding nonperforming
assets at December 31, 1997, 1996, 1995, 1994 and 1993:
<TABLE>
<CAPTION>
At December 31,
1997 1996 1995 1994 1993
(Dollars in thousands)
<S> <C> <C> <C> <C> <C>
Nonaccrual loans:
Residential real estate loans $1,918 1,282 1,573 932 1,026
Commercial real estate - - 302 - -
Commercial loans 577 182 351 25 -
Consumer loans and other 1 3 - - 1
Total nonaccrual loans 2,496 1,467 2,226 957 1,027
Total nonperforming loans 2,496 1,467 2,226 957 1,027
Total nonperforming loans
to total loans 2.34% 1.60% 2.09% .77% 1.02%
Foreclosed real estate:
Real estate acquired by
foreclosure or deed
in lieu of foreclosure 105 270 - 127 145
Total nonperforming loans
and foreclosed real estate $2,601 1,737 2,226 1,084 1,172
Total nonperforming and
foreclosed real estate
to total assets 1.76% 1.15% 1.15% .54% .72%
</TABLE>
Interest income that would have been recorded under the original
terms of nonaccrual loans and the interest income actually
recognized are summarized below:
<TABLE>
<CAPTION>
Year Ended December 31,
1997 1996 1995 1994 1993
(Dollars in thousands)
<S> <C> <C> <C> <C> <C>
Interest income that would have
been recognized $343 200 203 117 110
Interest income recognized 123 3 103 28 19
Interest income forgone $220 197 100 89 91
</TABLE>
Allowance for Loan Losses
The allowance for loan losses is a reserve established through
charges to earnings in the form of a provision for loan losses. Based
on an evaluation of the loan portfolio, management presents a
monthly review of the allowance for loan losses to the Board of
Directors, indicating any changes in the allowance since the last
review and any recommendations as to adjustments in the
allowance. In making its evaluation, management considers the
diversification by industry of the Company's commercial loan
portfolio, the significant proportion of single family, owner-
occupied residential real estate loans in the portfolio, the effect
of changes in the local real estate market on collateral values, the
effects on the loan portfolio of current economic indicators and
their probable impact on borrowers, the amount of charge-offs for
the period, the amount of nonperforming loans and related collateral
security, the evaluation of its loan portfolio by the independent
loan review function and the annual examination of the Company's
financial statements by its independent auditors. Charge-offs occur
when loans are deemed to be uncollectible.
The Company maintains an internally classified loan list which,
along with the delinquency list of loans, helps management assess
the overall quality of the loan portfolio and the adequacy of the
allowance for loan losses. Loans classified as "substandard" are
those loans with clear and defined weaknesses such as a highly-
leveraged position, unfavorable financial ratios, uncertain
repayment sources or poor financial condition, which may jeopardize
recoverability of the debt. At December 31, 1997, the Company had
$134,000 of such loans, excluding loans on nonaccrual, of which one
loan for $119,200 was upgraded to a performing asset within thirty
days.
Loans classified as "doubtful" are those loans which have
characteristics similar to substandard loans but with an increased
risk that a loss may occur, or at least a portion of the loan may
require a charge-off if liquidated at present. Although loans
classified as substandard do not duplicate loans classified as
doubtful, both substandard and doubtful loans include some loans
that are delinquent at least 30 days or on nonaccrual status. Loans
classified as "loss" are those loans which are in the process of
being charged off. At December 31, 1997, the Company had four loans
classified as doubtful with aggregate balances of $965,400. One loan
carries an SBA guarantee in the amount of $609,400, reducing the
Company's exposure to $356,000.
In addition to the internally classified loan list and delinquency
list of loans, the Company maintains a separate ?watch list? which
further aids the Company in monitoring loan portfolios. Watch list
loans show warning elements where the present status portrays one
or more deficiencies that require attention in the short term or
where pertinent ratios of the loan have weakened to a point where
more frequent monitoring is warranted. These loans do not have all
of the characteristics of a classified loan (substandard or doubtful)
but do show weakened elements as compared with those of a
satisfactory credit. The Company reviews these loans to assist in
assessing the adequacy of the allowance for loan losses. At
December 31, 1997, the Company had four loans with aggregate
balances of $796,000 on the "watch list." Each of the four loans is
guaranteed under SBA loan programs in an aggregate amount of
$665,000, reducing the Company's exposure to $131,000.
In order to determine the adequacy of the allowance for loan losses,
management considers the risk classification or delinquency status
of loans and other factors, such as collateral value, portfolio
composition, trends in economic conditions and the financial
strength of borrowers. Management establishes specific allowances
for loans which management believes require reserves greater than
those allocated according to their classification or delinquent
status. An unallocated allowance is also established based on the
Company's historical charge-off experience. The Company then
charges to operations a provision for loan losses to maintain the
allowance for loan losses at an adequate level determined by the
foregoing analysis.
For the year ended December 31, 1997, net loan charge-offs totaled
$9,000 or .01% of average loans outstanding for the period, compared
to $248,000 in net charge-offs or .25% of average loans outstanding
for the year ended December 31, 1996. During the year ended
December 31, 1997, the Company recorded a provision for loan
losses of $80,000, compared to $185,000 for the year ended
December 31, 1996. At December 31, 1997, the allowance totaled
$848,000 or .80% of total loans resulting in an allowance to
nonperforming loans of 33.97%. Management feels the allowance for
loan losses is appropriate given the fact that one nonperforming
residential real estate loan totaling $1.225 million represents
49.08% of the nonperforming loans. The original loan to value was
less than 60% and the collateral is involved in a complex bankruptcy.
A trustee has been appointed and was recently granted permission to
retain a broker to sell the property. This action should accelerate
the liquidation of the collateral and management expects a full
recovery.
Management believes that the allowance for loan losses at December
31, 1997 is adequate to cover losses inherent in the portfolio as
of such date. There can be no assurance, however, that the Company
will not sustain losses in future periods, which could be greater
than the size of the allowance at December 31, 1997.
The following table sets forth information with respect to activity
in the Bank's allowance for loan losses during the periods indicated:
<TABLE>
<CAPTION>
Year Ended December 31,
1997 1996 1995 1994 1993
(Dollars in thousands)
<S> <C> <C> <C> <C> <C>
Average loans outstanding, net $103,193 98,072 131,023 125,460 114,552
Allowance at beginning of year 777 840 528 382 322
Charge-offs:
Residential real estate - (2) (27) (51) (66)
Commercial real estate (48) (238) - (2) -
Consumer loans (10) (8) (2) - -
Total loans charged-off (58) (248) (29) (53) (66)
Recoveries 49 - 5 10 6
Net charge-offs (9) (248) (24) (43) (60)
Provision for loan losses charged
to operating expenses 80 185 336 75 120
Amount attributable to Pointe Bank
at acquisition - - - 114 -
Allowance at end of year $ 848 777 840 528 382
Net charge-offs to average
loans outstanding .01% .25% .02% .03% .05%
Allowance as a percent of total loans .80% .85% .79% .42% .38%
Allowance as a percent of
nonperforming loans 33.97% 52.97% 37.74% 55.17% 37.20%
Total loans at end of year $106,659 91,125 106,315 124,634 100,578
</TABLE>
The following table presents information regarding the Company's
total allowance for loan losses as well as the allocation of such
amounts to the various categories of loans:
<TABLE>
<CAPTION>
At December 31,
1997 1996 1995 1994 1993
% of % of % of % of % of
Loans to Loans to Loans to Loans to Loans to
Total Total Total Total Total
Amount Loans Amount Loans Amount Loans Amount Loans Amount Loans
(Dollars in thousands)
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Commercial loans $158 18.59% $135 17.35% $122 14.49% $ 33 6.26% $ 12 3.12%
Commercial real
estate loans 140 16.53 88 11.31 20 2.42 25 4.77 3 .92
Residential real
estate loans 492 57.97 525 67.60 687 81.80 466 88.26 365 95.53
Consumer loans 58 6.91 29 3.74 11 1.29 4 .71 2 .43
Total allowance
for loan losses $848 100.00% $777 100.00% $840 100.00% $528 100.00% $382 100.00%
</TABLE>
<TABLE>
Securities
<CAPTION>
At December 31, 1997 securities totaled $32.079 million, from
$42.790 million in 1996, a decrease of $10.711 million, or 25.03%.
The decrease is a result of the Company's planned sale in 1997 of
mortgage backed securities products and re-positioning into United
States Treasury securities. During 1996, securities decreased to
$42.790 million from $48.542 million at December 31, 1995, a
decrease of $5.752 million or 11.85%. The yields on the securities
portfolio were 6.29%, 6.99% and 6.26% for 1997, 1996 and 1995,
respectively.
At December 31,
1997 1996 1995
Carrying % of Carrying % of Carrying % of
Value Total Value Total Value Total
(Dollars in thousands)
<S> <C> <C> <C> <C> <C> <C>
U.S. Government agency
securities $ 1,253 3.91% $ 2,311 5.40% $ 3,295 6.79%
U.S. Treasury securities 9,039 28.18 11,497 26.87 3,027 6.24
Mortgage-backed securities 15,177 47.31 22,390 52.32 35,536 73.20
Mutual funds 4,965 15.47 4,851 11.34 4,943 10.18
Other 1,645 5.13 1,741 4.07 1,741 3.59
$32,079 100.00% $42,790 100.00% $48,542 100.00%
</TABLE>
<TABLE>
<CAPTION>
The following table sets forth, by maturity distribution, certain
information pertaining to the securities portfolio:
After One Year
One Year or Less to Five Years After Five Years Total
Carrying Average Carrying Average Carrying Average Carrying Average
Value Yield Value Yield Value Yield Value Yield
(Dollars in thousands)
<S> <C> <C> <C> <C> <C> <C> <C> <C>
At December 31, 1997:
U.S. Government agency
securities $ - -% $ 779 8.45% $ 474 7.91% $ 1,253 8.24%
U.S. Treasury securities - - 9,039 5.93 - - 9,039 5.93
Mortgage-backed securities 7,328 6.45 3,080 6.30 4,769 5.92 15,177 6.25
Mutual funds 4,965 6.94 - - - - 4,965 6.94
Other - - 25 8.00 1,620 7.04 1,645 7.06
Total $12,293 6.65% $12,923 6.17% $6,863 6.12% $32,079 6.36%
At December 31, 1996:
U.S. Government agency
securities $ 983 7.77% $ 488 7.89% $ 840 7.45% $ 2,311 7.78%
U.S. Treasury securities - - 11,497 5.65 - - 11,497 5.65
Mortgage-backed securities 14,462 6.20 4,098 5.84 3,830 6.60 22,390 6.20
Mutual funds 4,851 6.30 - - - - 4,851 6.30
Other - - 25 7.88 1,716 7.08 1,741 7.09
Total $20,296 6.31% $16,108 5.78% $6,386 6.84% $42,790 6.19%
</TABLE>
The following table summarizes the carrying value and
classification of securities as of the dates shown:
<TABLE>
<CAPTION>
Year Ended December 31,
1997 1996 1995
(In thousands)
<S> <C> <C> <C>
Available for Sale $22,745 $32,920 $38,065
Held to Maturity 9,334 9,870 10,477
Total securities $32,079 42,790 48,542
</TABLE>
Deposits
The Company offers a variety of deposit accounts having a wide
range of interest rates and terms. The Company's deposits consist
of demand, NOW, savings, money market and time accounts. The
Company relies primarily on competitive pricing policies and
consumer services to attract and retain deposits. The Company does
not have any brokered deposits.
Average total interest bearing deposits during 1997 increased to
$108.008 million in 1997, from $105.906 million in 1996, an
increase of $2.102 million or 1.98%. The increase was primarily
attributed to the growth in the Company's transaction accounts as
the Company became less dependent on certificates of deposit.
Average interest bearing transaction balances at December 31, 1997
were $47.735 million as compared to $38.218 million in 1996 and
$32.009 million in 1995. The Company's percentage of non-interest
bearing demand deposits to average total deposits for years ending
1997, 1996 and 1995 were 9.52%, 8.48% and 3.38%, respectively, as
the Company's emphasis changed to relationship banking.
The following table shows the distribution of, and certain other
information relating to, deposit accounts by type:
<TABLE>
<CAPTION>
At December 31,
1997 1996 1995
% % %
Balance of Total Balance of Total Balance of Total
(Dollars in thousands)
<S> <C> <C> <C> <C> <C> <C>
Demand deposits $ 12,136 9.71% $ 9,386 8.34% $ 6,484 4.54%
Savings and NOW deposits 17,974 14.38% 20,933 18.61% 8,680 6.08%
Money-market deposits 30,186 24.15% 25,194 22.40% 27,470 19.25%
Time deposits 64,699 51.76% 56,985 50.65% 100,039 70.13%
Total deposits $124,995 100.00% $112,498 100.00% $142,673 100.00%
</TABLE>
Jumbo certificates ($100,000 and over) included above mature as
follows:
At December 31,1997
(In thousands)
Due three months or less $ 1,558
Due over three months to six months 1,123
Due over six months to one year 1,640
Due over one year 6,720
$11,041
The scheduled maturities of time deposits are as follows:
At December 31, 1997
(In thousands)
Due in one year or less $32,999
Due in more than one but less than three years 24,136
Due in more than three but less than five years 7,564
$64,699
The following table sets forth the net deposit flows of the Company
during the periods indicated:
<TABLE>
<CAPTION>
Year Ended December 31,
1997 1996 1995
(In thousands)
<S> <C> <C> <C>
Net increase (decrease) before interest credited $ 6,849 (37,026) (29,138)
Net credited 5,648 6,851 7,724
Net deposit increase (decrease) $12,497 (30,175) (21,414)
</TABLE>
The following table indicated the daily average balances and
weighted average interest rates paid on interest bearing deposits
for each of the three years ended December 31, 1997, 1996 and 1995:
<TABLE>
<CAPTION>
At December 31,
1997 1996 1995
Average % Average Average % Average Average % Average
Balance of Total Yield Balance of Total Yield Balance of Total Yield
(Dollars in thousands)
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Savings and
NOW deposit $ 10,278 8.61% 1.98% $ 8,535 7.38% 2.11% $ 8,441 5.31% 1)91
Money market
deposits 37,457 31.38% 4.62% 29,683 25.65% 4.65% 23,568 14.81% 4)6
Time deposits 60,273 50.49% 5.70% 67,688 58.49% 6.28% 121,708 76.50% 5)74
Total interest-
bearing deposits 108,008 90.48% 4.97% 105,906 91.52% 5.49% 153,717 96.62% 5)36
Non-Interest
bearing 11,369 9.52% 9,812 8.48% 5,371 3.38%
Total $119,377 100.00% $115,718 100.00% $159,088 100.00%
</TABLE>
Borrowings
FHLB advances, securities sold under repurchase agreements and for
investment and repurchase agreements offered to the Company's
commercial deposit customers provide the Company with short-term
and long-term sources of funds. FHLB advances have decreased from
$27.190 million to $22.972 million to $4.400 million at years ended
December 31, 1995, 1996 and 1997, respectively. Other borrowings
have changed from $ 6.025 million to $774,000 to $1.791 million at
years ended December 31, 1995, 1996 and 1997, respectively. It is
the strategy of the Company to fund asset growth from its deposit
base; however, the Company may, from time to time, borrow from
wholesale sources of funds to fund such growth as market
conditions warrant. As the Company shifts the balance sheet from
long-term fixed rate investments to shorter term relationship
assets, management expects the Company to become less dependent
on wholesale sources of funds.
Maturities and interest rates of advances from the FHLB were as
follows (dollars in thousands):
<TABLE>
<CAPTION>
Year Ended Interest At December 31,
December 31, Rate 1997 1996 1995
<C> <C> <C> <C> <C>
1996 6.76% $ - - 8,000
1996 6.25% - - 4,000
1996 5.95% - - 5,000
1996 5.93% - - 2,000
1996 6.00% - - 4,500
1996 5.77% - - 3,000
1996 5.43% - - 690
1997 5.44% - 5,000 -
1997 5.37% - 5,000 -
1997 6.95% - 1,672 -
1997 5.97% - 5,000 -
1997 6.00% - 1,300 -
1997 6.89% - 5,000 -
1998 6.50% 4,400 - -
Total $4,400 22,972 27,190
</TABLE>
At December 31, 1997, pursuant to a collateral agreement with the
FHLB, advances are collateralized by the Company's FHLB stock and
a blanket lien on the Company's qualifying first mortgage, one- to
four-family residential loans.
Interest Rate Sensitivity and Liquidity
Asset and liability management is concerned with the timing and
magnitude of repricing assets compared to liabilities. It is the
objective of the Company to generate stable growth in net interest
income and to attempt to control risks associated with interest rate
movements. In general, management's strategy is to reduce the
impact of changes in interest rates on its net interest income by
maintaining a favorable match between the maturities or repricing
dates of its interest-earning assets and interest-bearing liabilities.
The Company's asset and liability management strategy is
formulated and monitored by the Asset Liability Committee
("ALCO"), which is composed of senior officers of the Company, in
accordance with policies approved by the Company's Board of
Directors. ALCO meets regularly to review, among other things, the
sensitivity of the Company's assets and liabilities to interest rate
changes, the book and market values of assets and liabilities,
unrealized gains and losses, purchase and sale activity, maturities
of investments deposits and borrowings. ALCO also approves and
establishes pricing and funding decisions with respect to the
Company's overall asset and liability composition. ALCO reviews the
Company's liquidity, cash flow flexibility, maturities of
investments, deposits and borrowings, retail and institutional
deposit activity, current market conditions and interest rates on
both a local and national level.
The interest rate sensitivity ("GAP") is defined as the difference
between interest-earning assets and interest-bearing liabilities
maturing or repricing within a given time period. A GAP is
considered positive when the amount of interest rate sensitive
assets exceeds the amount of interest rate sensitive liabilities.
A GAP is considered negative when the amount of interest rate
sensitive liabilities exceeds interest rate sensitive assets. During
a period of rising interest rates, a negative GAP would tend to
adversely affect net interest income, while a positive GAP would
tend to result in an increase in net interest income. During a period
of falling interest rates, a negative GAP would tend to result in
an increase in net interest income while a positive GAP would tend to
affect net interest income adversely. While GAP is a useful
measurement and contributes toward effective asset and liability
management, it is difficult to predict the effect of changing
interest rates solely on that measure. Different types of assets and
liabilities with the same or similar maturities may react
differently to changes in overall market rates or conditions. Changes
in interest rates may affect net interest income positively or
negatively even if an institution were perfectly matched in each
maturity category.
The following table sets forth certain information relating to the
Company's interest-earning assets and interest-bearing liabilities
at December 31, 1997 that are estimated to mature or are scheduled
to reprice within the period shown.
<TABLE>
<CAPTION>
More
Than More
Three Than Six More
Months Months Than One
Three to Six to One Year to More Than
Months Months Year Five Years Five Years Total
(Dollars in thousands)
<S> <C> <C> <C> <C> <C> <C>
Loans<F1>,<F2> $ 37,201 10,857 17,647 20,552 24,845 111,102
Securities<F3> 10,936 570 787 12,923 6,863 32,079
Interest Bearing
Deposits 303 - - - - 303
Total rate-
sensitive assets 48,440 11,427 18,434 33,475 31,708 143,484
Deposit accounts<F4>:
Savings and NOW 17,974 - - - - 17,974
Money market 30,186 - - - - 30,186
Time deposits 9,664 7,026 16,309 31,700 - 64,699
Total deposit accounts 57,824 7,026 16,309 31,700 - 112,859
Other borrowings 6,191 - - - - 6,191
Total rate-sensitive
liabilities 64,015 7,026 16,309 31,700 - 119,050
Gap (repricing
differences) $(15,575) 4,401 2,125 1,775 31,708 24,434
Cumulative GAP $(15,575) (11,174) (9,049) (7,274) 24,434
Cumulative
GAP/total assets (10.54)% (7.56)% (6.12)% (4.92)% 16.53%
<FN>
<F1> In preparing the table above, adjustable-rate loans are
included in the period in which the interest rates are next scheduled
to adjust rather than in the period in which the loans mature. Fixed-
rate loans are scheduled, including repayment, according to their
contractual maturities.
<F2> Includes nonaccrual loans and loans held for sale.
<F3> Securities are scheduled according to their respective
repricing and maturity dates.
<F4> Savings, NOW and money market accounts are regarded as
readily accessible withdrawable accounts. All other time accounts
are scheduled according to their respective maturity dates.
</FN>
</TABLE>
Shortcomings are inherent in any GAP analysis since certain assets
and liabilities may not move proportionally as interest rates change.
Liquidity
Liquidity involves the Company's ability to raise funds to support
asset growth or reduce assets to meet deposit withdrawals and
other payment obligations, to maintain reserve requirements and
otherwise to operate the Company on an ongoing basis. During the
past three years, the Company's liquidity needs have been met
primarily by financing activities through FHLB advances, growth in
core deposits and other short term borrowing sources. In the
Company's investing activities, highly liquid securities have
provided flexibility in meeting our cash needs. Access to purchased
funds from correspondent banks is available and has been utilized
to take advantage of investment opportunities.
A Florida chartered commercial bank is required to maintain a
liquidity reserve of at least 15% of its total transaction accounts
and 8% of its total nontransaction accounts less deposits of certain
public funds. The liquidity reserve may consist of cash on hand, cash
on demand with other correspondent banks and other investments
and short-term marketable securities as determined by the rules of
the Department, such as federal funds sold and United States
government securities or securities guaranteed by the United States
or agencies thereof. As of December 31, 1997 and December 31,
1996, the Bank had liquidity of approximately $27.728 million and
$38.768 million, or approximately 22.41% and 34.65% of total
deposits combined with borrowings, respectively. Management
believes the Company has adequate resources to fund all of its
commitments, that substantially all of its existing commitments
will be funded within the next twelve months and, if so desired, that
it can adjust the rates on certificates of deposit to retain deposits
in a changing interest rate environment.
Capital Resources
Capital management consists of providing equity to support both
current and future operations. The Company is subject to capital
adequacy requirements imposed by the Federal Reserve Board and the
Bank is subject to capital adequacy requirements imposed by the
FDIC and the Department. Both the Federal Reserve Board and the
FDIC have adopted risk-based capital requirements for assessing the
capital adequacy of bank holding companies and banks. These
standards define capital and establish minimum capital
requirements in relation to assets and off-balance sheet exposure,
adjusted for credit risk. The risk-based capital standards currently
in effect are designed to make regulatory capital requirements more
sensitive to differences in risk profiles among bank holding
companies and banks, to account for off balance sheet exposure and
to minimize disincentives for holding liquid assets. Assets and off
balance sheet items are assigned to broad risk categories, each with
appropriate relative risk weights. The resulting capital ratios
represent capital as a percentage of total risk-weighted assets and
off-balance sheet items.
Bank regulatory authorities in the United States have issued risk-
based capital standards by which all bank holding companies and
banks are evaluated in terms of capital adequacy. The risk-based
capital standards issued by the Federal Reserve Board apply to the
Company. These guidelines relate a financial institution's capital
to the risk profile of its assets. The risk-based capital standards
require all financial institutions to have "Tier 1 capital" of at
least 4.0% and "total risk-based" (Tier 1 and Tier 2) capital of at least
8.0% of total risk-adjusted assets. "Tier 1 capital" generally
includes common shareholders' equity and qualifying perpetual
preferred stock, together with related surpluses and retained
earnings, less deductions for goodwill and various other intangibles.
"Tier 2 capital" may consist of a limited amount of intermediate
term preferred stock, a limited amount of term subordinated debt,
certain hybrid capital instruments and other debt securities,
perpetual preferred stock not qualifying as Tier 1 capital, and a
limited amount of the general valuation allowance for loan losses.
The sum of Tier 1 capital and Tier 2 capital is "total risk-based
capital."
The Federal Reserve Board has also adopted guidelines which
supplement the risk-based capital guidelines with a minimum ratio
of Tier 1 capital to average total consolidated assets ("leverage
ratio") of 3.0% for institutions with well diversified risk, including
no undue interest rate exposure; excellent asset quality; high
liquidity; good earnings; and that are generally considered to be
strong banking organizations, rated composite 1 under applicable
federal guidelines, and that are not experiencing or anticipating
significant growth. Other banking organizations are required to
maintain a leverage ratio of at least 4.0% to 5.0%. These rules
further provide that banking organizations experiencing internal
growth or making acquisitions will be expected to maintain capital
positions substantially above the minimum supervisory levels and
comparable to peer group averages, without significant reliance on
intangible assets.
Pursuant to Federal Deposit Insurance Corporation Improvement Act
of 1991 ("FDICIA"), each federal banking agency revised its risk-
based capital standards to ensure that those standards take
adequate account of interest rate risk, concentration of credit risk
and the risks of nontraditional activities, as well as reflect the
actual performance and expected risk of loss on multifamily
mortgages. The Bank is subject to capital adequacy guidelines of the
FDIC that are substantially similar to the Federal Reserve Board's
guidelines. Also pursuant to FDICIA, the FDIC has promulgated
regulations setting the levels at which an insured institution such
as the Bank would be considered "well capitalized," "adequately
capitalized," "undercapitalized," "significantly undercapitalized"
and "critically undercapitalized." The Bank is classified "well
capitalized" for purposes of the FDIC's prompt corrective action
regulations.
Shareholders' equity increased from $12.421 million at December
31, 1996 to $13.845 million at December 31, 1997, an increase of
$1.424 million or 11.46%. This increase was primarily the result of
net income of $914,000, net preferred stock issuance of $228,000
and $190,000 in proceeds from the exercise of common stock
options.
The following table summarizes the regulatory capital requirements
for the Company and the Company's risk-based and leverage capital
ratios at year end for 1997 (dollars in thousands):
<TABLE>
To Be Well
Capitalized Under
For Capital Prompt Corrective
Actual Adequacy Purposes: Action Provisions:
Amount Ratio Amount Ratio Amount Ratio
<S> <C> <C> <C> <C> <C> <C>
At December 31, 1997:
Total Capital
(to Risk-Weighted Assets) $14,565 16.02% $7,227 8.00% $9,033 10.00%
Tier I Capital
(to Risk-Weighted Assets) 13,718 15.09 3,613 4.00 5,420 6.00
Tier I Capital
(to Average Assets) 13,718 9.10 6,030 4.00 7,537 5.00
</TABLE>
Credit Risk
The Bank's primary business is making commercial, business,
consumer and real estate loans. That activity entails potential loan
losses, the magnitude of which depends on a variety of economic
factors affecting borrowers which are beyond the control of the
Bank. While management has instituted underwriting guidelines and
credit review procedures to protect the Bank from avoidable credit
losses, some losses will inevitably occur.
Market Risk
Market risk is the risk of loss from adverse changes in market
prices and rates. The Company's market risk arises primarily from
interest rate risk inherent in its lending and deposit taking
activities. To that end, management actively monitors and manages
its interest rate risk exposure. The measurement of market risk
associated with financial instruments is meaningful only when all
related and offsetting on- and off-balance-sheet transactions are
aggregated, and the resulting net positions are identified.
Disclosures about the fair value of financial instruments, which
reflect changes in market prices and rates, can be found in Note 10
of Notes to Consolidated Financial Statements.
The Company's primary objective in managing interest-rate risk is
to minimize the adverse impact of changes in interest rates on the
Bank's net interest income and capital, while adjusting the
Company's asset-liability structure to obtain the maximum yield-
cost spread on that structure. The Company relies primarily on its
asset-liability structure to control interest rate risk. However,
a sudden and substantial increase in interest rates may adversely
impact the Company's earnings, to the extent that the interest rates
borne by assets and liabilities do not change at the same speed, to
the same extent, or on the same basis. The Company does not engage
in trading activities.
Impact of Inflation and Changing Prices
The financial statements and related data presented herein have
been prepared in accordance with generally accepted accounting
principles, which require the measurement of financial position and
operating results in terms of historical dollars, without considering
changes in the relative purchasing power of money over time due to
inflation. Unlike most industrial companies, substantially all of
the assets and liabilities of the Company are monetary in nature. As a
result, interest rates have a more significant impact on the
Company's performance than the effects of general levels of
inflation. Interest rates do not necessarily move in the same
direction or with the same magnitude as the prices of goods and
services, since such prices are affected by inflation to a larger
extent than interest rates.
Future Accounting Requirements
Financial Accounting Standards 130 - Reporting Comprehensive
Income establishes standards for reporting comprehensive income.
The Standard defines comprehensive income as the change in equity
of an enterprise except those resulting from stockholder
transactions. All components of comprehensive income are required
to be reported in a new financial statement that is displayed with
equal prominence as existing financial statements. The Company
will be required to adopt this Standard effective January 1, 1998.
As the Statement addresses reporting and presentation issues only,
there will be no impact on operating results from the adoption of
this Standard.
Financial Accounting Standards 131 - Disclosures about Segments of
an Enterprise and Related Information establishes standards for
related disclosures about products and services, geographic areas,
and major customers. The Company will be required to adopt this
Standard effective January 1, 1998. As the Standard addresses
reporting and disclosure issues only, there will be no impact on
operating results from adoption of this Standard.
REGULATION AND SUPERVISION
General
As a one-bank holding company registered under the BHC, the
Company is subject to regulation and supervision by the Federal
Reserve Board. Under the BHC, the Company's activities are limited
to banking, managing or controlling banks, furnishing services to
or performing services for its subsidiaries and engaging in any other
activity that the Federal Reserve Board determines to be so closely
related to banking or managing or controlling banks as to be a proper
incident thereto. As a state-chartered commercial bank, the Bank is
subject to extensive regulation by the Department and the FDIC.
The Company and the Bank are required to file reports with the
Federal Reserve Board, the Department and the FDIC concerning their
activities and financial condition, in addition to obtaining regulatory
approvals prior to entering into certain transactions such as
mergers with or acquisitions of other financial institutions.
Periodic examinations are performed by the Federal Reserve Board,
the Department and the FDIC to monitor the Company's and the Bank's
compliance with the various regulatory requirements. Deposits held
by the Bank are insured up to the applicable limits by the FDIC under
the Bank Insurance Fund ("BIF"). The Bank is subject to regulation
of the Federal Reserve Board and the Department with respect to
reserves required to be maintained against transaction deposit
accounts and certain other matters.
Regulation of the Company
Acquisitions by Bank Holding Companies. The BHC prohibits bank
holding companies such as the Company from acquiring direct or
indirect control of more than 5% of any class of outstanding voting
stock or acquiring substantially all of the assets of any bank or
merging or consolidating with another bank holding company without
prior approval of the Federal Reserve Board. Additionally, the BHC
prohibits bank holding companies such as the Company from engaging
in or from acquiring ownership or control of more than 5% of the
outstanding voting stock of any company engaged in a non-banking
business, unless such business is determined by the Federal Reserve
Board to be so closely related to banking or managing or controlling
banks as to be properly incident thereto.
Transactions between the Bank and the Company. Sections 23A and
23B of the Federal Reserve Act (the "Act") restrict certain
transactions between banks (and their subsidiaries) and companies
affiliated with such institutions. Sections 23A and 23B generally
define an "affiliate" as any company that controls or is under
common control with an institution. Accordingly, the Company is an
affiliate of the Bank for purposes of Sections 23A and 23B.
Subsidiaries of a bank, however, are generally exempted from the
definition of "affiliate." Section 23A limits the aggregate amount
of a bank's transactions restricted by Section 23A with any individual
affiliate to 10% of the capital and surplus of the bank and also
limits the aggregate amount of such transactions of a bank with all
affiliates to 20% of the capital and surplus of the bank. Certain
transactions with affiliates, such as loans to affiliates or
guarantees, acceptances and letters of credit issued by a bank on
behalf of affiliates, are required to be collateralized by collateral
in an amount and of a type described in the Act. The purchase by a bank
of low quality assets from affiliates is generally prohibited. Section
23B provides that certain transactions of a bank with affiliates,
including loans and asset purchases, must be on terms and under
circumstances, including credit standards, that are substantially
the same or at least as favorable to the institution as those prevailing
at the time for comparable transactions with nonaffiliated
companies. In the absence of comparable transactions, such
transactions may only occur under terms and circumstances,
including credit standards, that in good faith would be offered to
or would apply to nonaffiliated companies.
Support of Subsidiary Depository Institutions. Under Federal Reserve
Board policy, the Company is expected to act as a source of financial
strength and to commit resources to support the Bank. This support
may be required at times when the Company might not be inclined to
provide such support. In addition, any capital loans by a bank holding
company to any of its subsidiary banks must be subordinate in right
of payment to depositors and to certain other indebtedness of such
subsidiary banks. In the event of a bank holding company's
bankruptcy under Chapter 11 of the U.S. Bankruptcy Code, the trustee
will be deemed to have assumed and is required to cure immediately
any deficit under any commitment by the debtor holding company to
any of the federal banking agencies to maintain the capital of an
insured depository institution, and any claim for breach of that
obligation will generally have priority over most other unsecured
claims.
Under the Federal Deposit Insurance Act ("FDIA"), a subsidiary bank
of a bank holding company can be held liable for any loss incurred
by, or reasonably expected to be incurred by, the FDIC in connection with
(i) the default of a commonly controlled FDIC-insured depository
institution or (ii) any assistance provided by the FDIC to any
commonly controlled FDIC insured depository institution "in danger
of default." "Default" is defined generally as the appointment of
a conservator or a receiver and "in danger of default" is defined
generally as the existence of certain conditions indicating that a
default is likely to occur in the absence of regulatory assistance.
Control of a Bank Holding Company. The Change in Bank Control Act
and the Federal Reserve Board's Regulation Y, require persons
acting directly or indirectly or in concert with one or more persons
to give the Federal Reserve Board 60 days written notice before
acquiring control of a bank holding company. Under the regulation,
control is defined as the ownership or control with the power to
vote 25% or more of any class of voting securities of the bank
holding company. The regulation also provides for a presumption of
control if a person owns, controls, or holds with the power to vote
10% or more (but less than 25%) of any class of voting securities,
and if (i) the bank holding company's securities are registered
securities under Section 12 of the Securities and Exchange Act of
1934, as amended; or (ii) no other person owns a greater percentage
of that class of voting securities.
Regulation of the Bank
General. From time to time, various bills are introduced in the
United States Congress with respect to the regulation of financial
institutions. Recent banking legislation, particularly the Financial
Institutions Reform, Recovery and Enforcement Act of 1989
("FIRREA") and the Federal Deposit Insurance Corporation
Improvement Act of 1991 ("FDICIA"), has broadened the regulatory
powers of the federal bank regulatory agencies and restructured the
nation's banking system.
FDICIA revised sections of the FDIA affecting bank regulation,
deposit insurance and provisions for funding of the BIF administered
by the FDIC. FDICIA also revised bank regulatory structures
embodied in several other federal banking statutes, strengthened the
bank regulators' authority to intervene in cases of deterioration
of a bank's capital level, placed limits on real estate lending and imposed
detailed audit requirements.
Prompt Corrective Action. A central feature of FDICIA is the
requirement that the federal banking agencies take "prompt
corrective action" with respect to insured depository institutions
that do not meet minimum capital requirements. Pursuant to FDICIA,
the federal bank regulatory authorities have adopted regulations
setting forth a five-tiered system for measuring the capital
adequacy of the depository institutions they supervise. Under these
regulations, a depository institution is classified in one of the
following capital categories: "well capitalized," "adequately
capitalized," "undercapitalized," "significantly undercapitalized,"
and "critically undercapitalized." FDICIA imposes progressively
more restrictive constraints on operations, management, and capital
distributions depending on the category in which an institution is
classified. Pursuant to FDICIA, undercapitalized institutions must
submit recapitalization plans to their respective federal bank
regulatory agencies, and a company controlling a failing institution
must guarantee such institution's compliance with its
recapitalization plan in order for the plan to be accepted.
The FDIC's prompt corrective action regulations define, among other
things, the relevant capital measures for the five capital categories.
For example, a bank is deemed to be "well-capitalized" if it has a
total risk-based capital ratio (total capital to risk-weighted
assets) of 10% or greater, a Tier I risk-based capital ratio (Tier
I capital to risk-weighted assets) of 6% or greater, and a Tier I
leverage capital ratio (Tier I capital to adjusted total assets) of
5% or greater, and is not subject to a regulatory order, agreement or
directive to meet and maintain a specific capital level for any
capital measure. A bank is deemed to be "adequately capitalized" if
it has a total risk-based capital ratio of 8% or greater, and
(generally) a Tier I leverage capital ratio of 4% or greater, and
the bank does not meet the definition of a "well-capitalized" institution.
A bank is deemed to be "critically undercapitalized" if it has a ratio
of tangible equity (as defined in the regulations) to total assets
that is equal to or less than 2%. In addition, the FDIC is authorized
effectively to downgrade a bank to a lower capital category than the
bank's capital ratios would otherwise indicate, based upon safety
and soundness considerations (such as when the bank has received a
less than satisfactory examination rating for certain of the CAMELS
rating categories other than capital: i.e., Asset Quality, Management,
Eamings or Liquidity). As a bank drops to lower capital levels, the
extent of action to be taken by the appropriate regulator increases,
restricting the types of transactions in which the bank may engage.
The new capital standards are designed to bolster and protect the
deposit insurance fund. The Bank is considered to be well
capitalized, as of December 31, 1997.
Insurance on Deposit Accounts. FDICIA also provided for increased
funding of the BIF. Under the FDIC's risk-based insurance premium
assessment system, each bank whose deposits are insured by the BIF
is assigned one of the nine risk classifications based upon certain
capital and supervisory measures and, depending upon its
classification, is assessed premiums. On November 14, 1995, the
FDIC board of directors voted to lower the BIF premium range to zero
from .27% effective January 1996.The rate schedule is subject to
future adjustments by the FDIC. In addition, the FDIC has the
authority to impose special assessments from time to time. As a
result of the enactment of the Deposit Insurance Funds Act of 1996
on September 30, 1996, commercial banks are now required to pay
part of the interest on the Financing Corporation's ("FICO") bonds
issued to deal with the savings and loan crisis of the late 1980s.
As a result, commercial bank deposits are now also subject to
assessment by FICO ("FICO Assessment") upon the approval by the
FDIC Board of such assessment. Beginning in 1997 and continuing
until the earlier of December 31, 1999 or the date on which the last
saving association ceases to exist, the assessment rate FICO
imposes on a commercial bank must be at a rate equal to one-fifth
the assessment rate applicable to deposits assessable by the SAIF.
It is estimated that the annual assessment for BIF insured
institutions will be approximately 1.2 cents per $100 of deposits,
while SAIF insured institutions will pay 6.5 cents per $100 of
deposits. These payments began in 1997 and run through 1999.
Beginning in the year 2000 and continuing through the year 2017,
banks and thrifts will each pay 2.43 cents per $100 of deposits.
These assessments will be in addition to any regular deposit
insurance assessments imposed by the FDIC under FDICIA. On
September 30, 1996, President Clinton signed into law an act that
contained a comprehensive approach to recapitalizing the SAIF and
to assure the payment of the FICO bond obligations. Under this act,
banks insured under the BIF are required to pay a portion of the
interest due on bonds that were issued by FICO to support the
Federal Savings and Loan Insurance Corporation in 1987. The BIF rate
must equal one-fifth of the SAIF rate through year-end 1999, or
until the insurance funds are merged, whichever occurs first.
Thereafter, BIF and SAIF payers will be assessed pro rata for the
FICO bond obligations. With regard to the assessment for the FICO
obligation, the current BIF rate is .0126% of deposits and the SAIF
rate is .0630% of deposits.
After the merger of the Thrift into the Bank in April 1997, the Bank
became an Oakar Bank, in that the Bank belonged to one insurance
fund, the BIF, and the Thrift belonged to a secondary insurance fund,
the SAIF. The result of the merger produced an adjusted attributed
deposit amount (AADA) to the Bank. Approximately 63% of the total
deposits are subjected to SAIF FICO premiums and the remaining
37% is subjected to BIF FICO premiums. At December 31, 1997, the
blended FICO for the Bank was .0437%. The Bank's FICO Assessment
for 1997 was $59,000, and the Bank believes it will be at least
$59,000 for 1998.
Standards for Safety and Soundness. FDICIA requires each federal
banking agency to prescribe for all insured depository institutions
and their holding companies, standards relating to intemal controls,
information systems and audit systems, loan documentation, credit
underwriting, interest rate risk exposure, asset growth,
compensation, fees and benefits and such other operational and
managerial standards as the agency deems appropriate. In addition,
the federal banking agencies are required to prescribe by regulation
standards specifying: (i) maximum classified assets to capital
ratios; (ii) minimum eamings sufficient to absorb losses without
impairing capital; (iii) to the extent feasible, a minimum ratio of
market value to book value for publicly traded shares of depository
institutions or the depository institution holding companies; and
(iv) such other standards relating to asset quality, eamings and
valuation as the agency deems appropriate. Finally, each federal
banking agency is required to prescribe standards for employment
contracts and other compensation arrangements of executive
officers, employees, directors and principal shareholders of insured
depository institutions that would prohibit compensation and
benefits and other arrangements that are excessive or that could
lead to a material financial loss for the institution. If an insured
depository institution or its holding company fails to meet any of
its standards described above, it will be required to submit to the
appropriate federal banking agency a plan specifying the steps that
will be taken to cure the deficiency. If an institution fails to submit
an acceptable plan or fails to implement the plan, the appropriate
federal banking agency will require the institution or holding
company to correct the deficiency and, until corrected, may impose
restrictions on the institution or the holding company including any
of the restrictions applicable under the prompt corrective action
provisions of FDICIA.
FDICIA also requires each appropriate federal banking agency to
adopt uniform regulations prescribing standards for extensions of
credit secured by real estate or made for the purpose of financing
the construction of improvements on real estate. In prescribing
these standards, the federal banking agencies must consider the risk
posed to the deposit insurance funds by real estate loans, the need
for safe and sound operation of insured depository institutions and
the availability of credit.
Capital Requirements. The Federal Reserve Board and the FDIC have
adopted capital regulations which establish a Tier 1 core capital
definition and a minimum 3% leverage capital ratio requirement for
the most highly-rated bank holding companies and state nonmember
banks, respectively (i.e., those bank holding companies and state
nonmember banks with a composite CAMELS rating of 1 under the
Uniform Financial Institutions Rating System established by the
Federal Financial Institutions Examination Council) that are not
anticipating or experiencing significant growth. All other state
nonmember banks are required to meet a minimum leverage ratio
that is at least 100 to 200 basis points above 3%. A bank holding
company or state nonmember bank that is not in the highest-rated
category or that is anticipating or experiencing significant growth
will have to meet a minimum leverage ratio of at least 4%.
Under the applicable risk-based regulations, a bank holding company
or state nonmember bank must classify its assets and certain off-
balance sheet activities into categories and maintain specified
levels of capital for each category. The least capital is required
for the category deemed by the Federal Reserve Board and the FDIC to
have the least risk, and the most capital is required for the category
deemed by the Federal Reserve Board and the FDIC to have the
greatest risk. The regulations require a bank holding company or
state nonmember bank to have a total risk-based capital ratio of 8%
and a Tier I risk-based capital ratio of 4%. Under the statement of
policy, certain assets are required to be deducted from risk-based
capital. Such assets include intangible assets, unconsolidated
banking and finance subsidiaries, investments in securities
subsidiaries, ineligible equity investments and reciprocal holding
of capital instruments with other banks. In addition, the Federal
Reserve Board or the FDIC may consider deducting other assets on a
case-by-case basis or investments in other subsidiaries on a case-
by-case basis or based on the general characteristics or functional
nature of the subsidiaries.
Loans to One Borrower. Florida law allows a state bank to extend
credit to any one borrower in an amount up to 25% of its capital
accounts, which are defined as unimpaired capital, surplus and
undivided profits, provided that the unsecured portion may not
exceed 15% of the capital accounts of the bank. The law permits
exemptions for loans collateralized by accounts maintained with the
Bank and for loans guaranteed by the SBA, the Federal Housing
Administration and the Veterans Administration. The Bank is subject
to these limits.
Payment of Dividends. The primary source of income to the Company
is dividends from the Bank. Under Florida law, a Florida chartered
commercial bank may not pay cash dividends that would cause the
bank's capital to fall below the minimum amount required by federal
or Florida law. Otherwise, a commercial bank may pay a dividend out
of the total of current net profits plus retained net profits of the
preceding two years to the extent it deems expedient, except as
described below. Twenty percent of the net profits in the preceding
two-year period may not be paid in dividends, but must be retained
to increase capital surplus until such surplus equals the amount of
common and preferred stock issued and outstanding. In addition, no
bank may pay a dividend at any time that net income in the current
year when combined with retained net income from the preceding
two years produces a loss. The ability of the Bank to pay dividends
to the Company will depend in part on the FDIC capital requirements
in effect at such time and the ability of the Bank to comply with
such requirements.
Brokered Deposits. In accordance with FDICIA, the FDIC has
implemented restrictions on the acceptance of brokered deposits. In
general, an "undercapitalized" institution may not accept, renew or
roll over any brokered deposits. "Adequately capitalized"
institutions may request a waiver from the FDIC to do so, while
"well-capitalized" institutions may accept, renew or roll over such
deposits without restriction. The rule requires registration of
deposit brokers and imposes certain recordkeeping requirements.
Institutions that are not "well-capitalized" (even if meeting
minimum capital requirements) are subject to limits on rates of
interest they may pay on brokered and other deposits.
Liquidity. A state-chartered commercial bank is required under
Florida law to maintain a liquidity reserve of at least 15% of its
total transaction accounts and 8% of its total nontransaction
accounts, subject to certain restrictions. This reserve may consist
of cash-on-hand, demand deposits due from correspondent banks, and
other investments and short-term marketable securities.
Community Reinvestment. Under the Community Reinvestment Act of
1977 (the "CRA"), as implemented by Federal Reserve Board and
FDIC regulations, state nonmember banks have a continuing and
affirmative obligation consistent with their safe and sound
operation to help meet the credit needs of their entire community,
including low- and moderate-income neighborhoods. The CRA does
not establish specific lending requirements or programs for
financial institutions nor does it limit an institution's discretion
to develop the types of products and services that it believes are best
suited to its particular community consistent with the CRA. The CRA
requires the FDIC, in connection with its examination of state
nonmember banks, to assess an institution's record of meeting the
credit needs of its communities and to take such record into account
in its evaluation of certain applications by such institution to
establish branches, merge or acquire the assets and assume the
liabilities of another bank. FIRREA requires federal banking agencies
to make public a rating of a bank's performance under the CRA. In
the case of a bank holding company, the CRA performance records of
the banks involved in the transaction are reviewed and taken into
account by the Federal Reserve Board when considering applications
to acquire ownership or control of shares or assets of a bank or to
merge with any other bank holding company. An unsatisfactory
record can substantially delay or block the transaction. Under the
Bank's most recent CRA examination, conducted in October 1996,
the Bank received a "satisfactory" rating from the FDIC.
Interstate Banking. Effective September 29, 1995, the Riegle-Neal
Interstate Banking and Branching Efficiency Act of 1994 (the "RNA")
permits adequately capitalized and managed bank holding companies
to acquire control of banks in any state. Additionally, beginning
on June 1, 1997, the RNA provides for banks to branch across state
lines, although individual states were allowed to authorize
interstate branches earlier or elect to opt-out entirely. The RNA
authorizes de novo branching by an out-of-state bank only if
expressly permitted by the laws of the host state. Florida has
allowed bank holding companies from the southeastern United States
to acquire banks in Florida since 1984, and in 1994 this was
expanded to include bank holding companies from other parts of the
United States as well. In 1996, Florida enacted legislation, effective
as of June 1, 1997 which allows out-of-state banks to enter Florida
by merging with an existing Florida-based bank, and thereafter to
branch throughout the state, and also allows Florida-based banks to
establish branches in other states by merging with out-of-state
banks. Such legislation may further increase competition for the
Bank by allowing large banks from other parts of the United States
to operate directly in Florida.
Department Assessment. State-chartered commercial banks are
required by Department regulation to pay assessments to the
Department to fund the operations of the Department. The general
assessment, to be paid semi-annually, is computed based upon a
bank's total assets, including consolidated subsidiaries, as reported
in the bank's latest quarterly call report. The Bank is required to
pay such assessments semi-annually.
Reserve Requirements. Federal Reserve Board regulations require
banks to maintain non interest-earning reserves against their
transaction accounts (primarily NOW and regular checking accounts).
The Federal Reserve Board regulations generally require that
reserves of 3% must be maintained against aggregate transaction
accounts of $47.8 million or less (subject to adjustment by the
Federal Reserve Board) and an initial reserve of $1.434 million plus
10% (subject to adjustment by the Federal Reserve Board between
8% and 14%) against that portion of total transaction accounts in
excess of $47.8 million. The first $4.7 million of otherwise
reservable balances (subject to adjustments by the Federal Reserve
Board) are exempted from the reserve requirements. The balances
maintained to meet the reserve requirements imposed by the Federal
Reserve Board may be used to satisfy liquidity requirements.
Because required reserves must be maintained in the form of either
vault cash, a noninterest-bearing account at a Federal Reserve Bank
or a pass-through account as defined by the Federal Reserve Board,
interest-earning assets of the Bank are reduced.
Federal Securities Laws
The Company, in connection with this Offering, has filed with the
Securities and Exchange Commission a registration statement under
the Securities Act for the registration of the Company's Common
Stock. The registration under the Securities Act of shares of the
Common Stock issued in this Offering does not cover the resale of
such shares. Shares of the Common Stock purchased by persons who
are not affiliates of the Company may be resold without further
registration. Shares purchased by an affiliate of the Company will
be subject to the resale restrictions of Rule 144 under the Securities
Act. If the Company meets the current public information
requirements of Rule 144 under the Securities Act, each affiliate
of the Company who complies with the other conditions of Rule 144
(including the holding period and those that require the affiliate's
sale to be aggregated with those of certain other persons) may be
able to sell in the public market, without registration, a number
of shares not to exceed, in any three-month period, the greater of (i)
1% of the outstanding shares of the Company, or (ii) the average
weekly volume of trading in such shares during the preceding four
calendar weeks.
The scope of regulation, supervision and permissible activities of
the Company and the Bank is subject to change by future federal and
state legislation.
MANAGEMENT
Directors and Executive Officers of the Company
Information about the current directors and executive officers of
the Company is set forth below. The Company's Board of Directors
currently consists of six members. Four of the Directors of the
Company are also Directors of the Bank.
Name Position Age
Roberto Kassin Chairman of the Company and 47
Director of the Bank
Morris Massry Director of the Company and
Chairman of the Bank 68
Timothy McGinn Director and Vice-Chairman
of the Company and the Bank 49
R. Carl Palmer, Jr. Director and President and
Chief Executive Officer of the
Company and the Bank 57
Beverly P. Chambers Senior Vice President of the
Company and the Bank 47
Bradley R. Meredith Senior Vice President and Chief
Financial Officer of the
Company and the Bank 44
Dennis Reed Senior Vice President of the
Company and the Bank 54
Steven Elias Director 51
Richard Mead Director 67
Roberto Kassin. Mr. Kassin has been Chairman of the Board of the
Company and a director of the Bank since 1994. He was a director of
Pointe Federal in 1986 and Chairman in 1993. He has been President
of American Land Management Group, Inc. since 1986 and President
of Foreign Financial Investment, Inc. since 1979. Mr. Kassin is
President of the Greater Miami Jewish Federation-Latin Division,
Acting President of Aish H?Torah, and director of the Michael-Ann
Russell Jewish Community Center. Mr. Kassin is a resident of Miami-
Dade County.
Morris Massry. Mr. Massry has been a director of the Company since
1994. He became a director of Flamingo Bank in 1988 and Chairman
of the Board in 1989. Mr. Massry has been a partner in the real estate
investment firm of Albert, Kirsch, Massry & Massry, in Albany, New
York, since 1964. Mr. Massry serves as a director of the State
University Foundation, a director and former Chairman of the Center
for the Disabled, a director and former Chairman of The United Way,
and a trustee of Russell Sage College, all in Albany, New York. Mr.
Massry resides part of the year in Albany, New York and part of the
year in Miami-Dade County.
Timothy McGinn. Mr. McGinn became a director of the Company in
1994. He has been a director and Chairman of McGinn, Smith & Co.,
Inc., investment bankers and brokers, since 1980. Mr. McGinn serves
as director and Chairman of Health Enterprises Management, Inc. and
as a director of Same Day Surgery, Inc. Mr. McGinn resides in Albany,
New York and has a home in Palm Beach, County.
R. Carl Palmer, Jr. Mr. Palmer joined the Company and Bank in 1995
as Chief Executive Officer, President and director. He began his
banking career at Chemical Bank in New York in 1964. In 1979, he
moved to south Florida as an Executive Vice President for Southeast
Bank Banking Corporation, where he first became associated with
Beverly Chambers and Dennis Reed. During his tenure at that bank
with $17 billion in assets, he had responsibilities for business
development, commercial banking and retail banking. From 1988 to
1991, he was President, Chief Operating Officer and director of
Naples Federal Savings & Loan and NAFCO Financial Corporation. He
became a Senior Associate with Martin W. Taplin & Associates, Inc.,
a real estate investment firm, in 1991. Mr. Palmer received an M.B.A.
from Dartmouth College, Amos Tuck School and a J.D. from New York
Law School. Mr. Palmer resides in Miami-Dade County.
Beverly P. Chambers. Ms. Chambers joined the Company in 1995 with
twenty-five years of banking experience and manages business
banking, loan administration, marketing and human resources. Prior
to joining the Company, she spent three years as a Senior Vice
President and Manager of Private Banking for NationsBank of Florida.
Prior to that position, Ms. Chambers was a Senior Vice President of
Southeast Banking Corporation managing commercial banking,
and private banking departments. Ms. Chambers resides in
Broward County.
Bradley R. Meredith. Mr. Meredith joined the Company in 1997, after
eight years as Executive Vice President and Chief Financial Officer
for First Family Financial Corporation in central Florida. The
majority of his seventeen years of banking experience has been with
community banks. Mr. Meredith graduated from DePaul University
with a B.S. in Finance in 1982. Mr. Meredith resides in Palm Beach
County.
Dennis Reed. Mr. Reed joined the Company in 1996 with twenty-nine
years of banking experience, primarily in operations, retail banking
and residential mortgage lending. His most recent experience was
five years as Senior Vice President of Bank Operations and Retail
Lending with BancFlorida, FSB, preceded by six years as Senior Vice
President of Bank Operations with Southeast Bank. Mr. Reed manages
operations, retail banking and residential mortgage lending. Mr. Reed
resides in south Florida.
Steven Elias. Mr. Elias has been president of Steven Allan Elias &
Associates, Inc., registered real estate brokers, since 1976. He has
extensive knowledge of real estate in Miami-Dade, Broward and Palm
Beach counties. Prior to forming his company, Mr. Elias was a
manufacturer's representative for three and one half years. Mr. Elias
graduated from the University of Miami in 1968, after which he
joined the U.S. Coast Guard. He has been a resident of south Florida
since 1953.
Richard Mead. Mr. Mead retired from Southeast Banking Corporation
as a Senior Vice President and manager of the Commercial Real
Estate Division in 1991. From 1976 to 1991 he was also President
and Chief Executive Officer of Southeast Mortgage Company. Prior to
joining Southeast Bank, he was an officer of D. R. Mead & Co., a
commercial mortgage banking firm, which was sold to Southeast
Banking Corporation in 1970. Mr. Mead received his undergraduate
degree from Duke University in 1950 and a graduate degree from
Harvard Business School in 1954. He is currently a director and
Chairman of the Audit Committee of Consolidated Paper Company. Mr.
Mead resides in Miami-Dade County.
Directors are elected for three year terms, classified into Classes
I, II, and III. Mr. Massry is a Class I director with a term of office
expiring on the date of the Company's annual meeting of
shareholders in 1998; Messrs. Elias and Mead are Class II directors
with terms of office expiring on the date of the Company's annual
meeting of shareholders in 1999; and Messrs. Kassin, McGinn and
Palmer are Class III directors with terms of office expiring on the
date of the Company's annual meeting of shareholders in 2000. Each
officer of the Company is elected by the Board of Directors and holds
office until his successor is duly elected and qualified or until
his or her earlier death, resignation or removal.
Executive Compensation and Other Information
The following table provides certain summary information regarding
compensation paid or accrued by the Company to or on behalf of the
Company's Chief Executive Officer and President. No other
executive officer received compensation for the fiscal year ended
December 31, 1997 which exceeded $100,000.
<TABLE>
SUMMARY COMPENSATION TABLE
<CAPTION>
Annual Compensation
Other Securities
Name and Annual Underlying
Principal Position Year Salary($)<F1> Compensation<F2> Options(#)
<S> <C> <C> <C> <C>
R. Carl Palmer, Jr. 1997 $202,000 $2,375 19,500
Chief Executive Officer 1996 $202,000 $1,775 30,000
and President 1995 $200,000 $ 0 0
<FN>
<F1> The amount shown for cash compensation does not include
amounts expended for perquisites and other personal benefits, which
in the aggregate do not exceed the lesser of $50,000 or 10% of the
cash compensation reported for the executive named above.
<F2> Consists of the Company's contribution to the Company's
401(k) Plan.
</FN>
</TABLE>
The following table sets forth stock options exercised during 1997
by the executive officers, including the value realized upon exercise.
In addition, this table describes the number of unexercised options
and the value of unexercised in-the-money options at the end of the
1997 fiscal year.
<TABLE>
Aggregate Option Exercises in Last Fiscal Year and
Fiscal-Year-End Option Values
<CAPTION>
Number of
Securities Value of
Underlying Unexercised
Shares Unexercised in-the-Money
Acquired Options at Options at
on Value Fiscal-Year-End Fiscal-Year-End
Exercise Realized Exercisable/ Exercisable/
Name (#) ($) Unexercisable Unexercisable<F1>
<S> <C> <C> <C> <C>
Beverly Chambers 0 $0 4,378/5,522 $2,991/$3,774
Bradley R. Meredith 0 $0 976/8,024 $ 667/$5,483
R. Carl Palmer, Jr. 0 $0 41,070/8,430 $7,564/$5,761
Dennis Reed 0 $0 1,632/5,868 $1,115/$4,010
<FN>
<F1> There is currently no trading market for the Company's
Common Stock. The value of unexercised in-the-money options was
calculated based on the difference between the book value per share
at December 31, 1997 ($10.23) and the exercise price of the options.
Book value per share is not necessarily indicative of the actual
market value per share.
</FN>
</TABLE>
Director Compensation
Directors who are not also employees receive annual retainers of
$6,000 for serving on the board of directors of both the Company and
the Bank. The Chairman of the Board of the Company receives an
annual stipend of $10,000 and the Chairman of the Board of the Bank
receives an annual stipend of $5,000. In addition, committee
chairmen receive annual retainers of $3,000. These retainers and
stipends are paid 50% cash and 50% in the form of stock options
which are granted after the end of each year for the prior year's
service. In addition, each non-employee director receives an annual
stock option award and receives meeting fees of $100.00 per board
meeting and $200.00 per committee meeting. For 1997, total cash
payments to directors were $68,400 and the Company granted non-
employee Directors five year stock options to purchase 17,313
shares at $10.03 per share.
Employee Stock Option Plan
The Company has adopted a 1994 Non-Statutory Stock Option Plan
(the "1994 Plan"). The 1994 Plan authorizes the issuance of up to
300,000 shares of Common Stock pursuant to "non-qualified"
options granted to key employees of the Company. These options to
acquire the Company's Common Stock are granted for terms of five
years. Certain options vest over a five year period at a rate of 20% per
year, with up to three years prior service credit given against said
vesting requirement. All options vest immediately upon a change in
control of the Company. The options terminate upon the termination
of the option holder's employment with the Company although the
option agreement provides for one year extensions of the period of
exerciseability of the options in the event of termination by
retirement, disability or death. The purchase price of the shares
is the fair market value per share of the Common Stock on the date of
grant. In the absence of any arm's length trades in the three months
preceding the date of grant, "fair market value per share" is the
total equity available to holders of common stock divided by the
total number of outstanding shares of common stock.
At December 31, 1997, options to purchase 205,581 shares of
Common Stock granted to 21 employees and non-employee directors
were outstanding, with per share exercise prices ranging from $9.55
to $10.52, 65,919 shares of Common Stock remained available for
future grants, and 28,500 shares of Common Stock had been issued
upon exercise of stock options.
The following table sets forth information regarding stock options
granted to executive officers during 1997.
Option Grants in Last Fiscal Year
<TABLE>
<CAPTION>
Percent of
Number of Total Options
Securities Granted to
Underlying Employees Exercise
Options in Fiscal Price Expiration
Name Granted(#)<F1> Year ($/Share) Date
<S> <C> <C> <C> <C>
Beverly Chambers 9,900 8.45% $9.55 05/21/2002
Bradley R. Meredith 9,000 7.68% $9.55 05/21/2002
R. Carl Palmer, Jr. 19,500 16.65% $9.55 05/21/2002
Dennis Reed 7,500 6.40% $9.55 05/21/2002
<FN>
<F1> Granted under the Company's 1994 Stock Option Plan.
</FN>
</TABLE>
The Deferred Compensation Plan
In 1993, the Company adopted a Deferred Compensation Plan (the
"Plan") for certain directors. Under the Plan a portion of each
participant's compensation can be deferred and the Company makes
annual contributions, which are subject to an annual increase of 4%.
Upon retirement, disability, death, or termination of service, the
participant has the option to take a lump sum payment or receive
monthly installments for a period of ten years. In 1997, the Company
made contributions aggregating $21,889 to the Plan and participants
deferred $12,091 in fees as contributions.
At December 31, 1997 and 1996, approximately $118,000 and
$177,000, respectively, were deferred and included in Other
Liabilities on the Company's Consolidated Balance Sheet.
During 1997, two directors received lump sum payments under the
Plan and, in early 1998, one other director received a lump sum
payment.
401(k) Plan
The Company has adopted a contributory profit sharing plan pursuant
to Internal Revenue Code Section 401(k) covering substantially all
employees (the "401(k) Plan"). Each year the Company determines,
at its discretion, the amount of the Company's contributions to the
401(k) Plan. Expenses relating to the Company's contributions to the
401(k) Plan for 1997, 1996 and 1995 were approximately $1,000,
$4,400 and $15,800, respectively.
<TABLE>
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND
MANAGEMENT
<CAPTION>
The following table sets forth the beneficial ownership of the
Company's Common Stock as of February 28, 1998, by (i) each
director of the Company; (ii) each executive officer of the Company;
(iii) all directors and executive officers as a group; and (iv) each
person known to the Company to be the beneficial owner of more
than 5% of the outstanding shares of the Company's Common Stock.
Percentage of
Name and Address of Number of Shares Common Stock
Beneficial Owner Beneficially Owned<F1> Beneficially Owned<F1>
Before After
Offering Offering
<S> <C> <C> <C>
Roberto Kassin<F2>
21471 Highland Lakes Boulevard
North Miami, FL 33179 272,255 17.93% 12.47%
Morris Massry<F3>
Executive Park North
Stuyvesant Plaza
Albany, NY 12203 214,709 14.14% 9.83%
Timothy McGinn<F4>
15 Marion Avenue
Albany, NY 12203 33,186 2.19% 1.52%
R. Carl Palmer, Jr.<F5>
10231 East Bay Harbor Dr.
Apartment #6B
Bay Harbor, FL 33154 82,567 5.44% 3.78%
Beverly Chambers<F6>
2633 Oakbrook Drive
Ft. Lauderdale, FL 33332 20,524 1.35% .94%
Bradley M. Meredith<F7>
2302 N.W. 25th Way
Boca Raton, FL 33434 18,413 1.21% .84%
Dennis Reed<F8>
2015 Timberline Drive
Naples, FL 34109 20,125 1.33% .92%
Richard Mead<F9>
4990 S.W. 72nd Street
Unit 105
Miami, FL 33155 6,408 .42% .29%
Steven A. Elias
115 N.W. 167 St., #300
North Miami Beach, FL 33169 - - -
All directors and executive
officers, as a group
(9 persons)<F10> 668,187 44.00% 30.60%
<FN>
<F1> The nature of reported beneficial ownership, as such term is
defined in Rule 13d-3 under the Securities Exchange Act of 1934, as
amended, is sole voting and investment power unless otherwise
indicated. Common Stock ownership of the persons listed reflects,
as indicated, shares of the Company's Common Stock that would be
issued upon the exercise of options granted to such persons to
acquire such Common Stock.
<F2> Reflects 160,849 shares held jointly by Roberto Kassin and his
wife; 15,624 shares held by Foreign Financial Investment, Inc., of
which Mr. Kassin is president; 75,624 shares held by a trust for the
benefit of Mr. Kassin's father-in-law, Leon Papu, the co-trustees
of which are Mr. Kassin and his wife; 14,192 shares that may be
acquired by Mr. Kassin upon exercise of options; and 5,966 shares
that would be issued upon an election to convert Preferred Stock
into Common Stock.
<F3> Reflects 132,121 shares held by Mr. Massry; 62,969 shares
owned by KAM, Inc., controlled by Mr. Massry; 6,802 shares that may
be acquired by Mr. Massry upon exercise of his options; 12,817
shares that would be issued upon election to convert Preferred Stock
into Common Stock. Does not include 10,680 shares owned or
controlled by Mr. Massry's family members.
<F4> Reflects 488 shares held individually by Mr. McGinn; 12,681
shares held by McGinn, Smith & Co., Inc.; 277 shares held by Kathleen
McGinn; 242 shares held by Matthew McGinn; 4,797 shares that may
be acquired by Mr. McGinn upon the exercise of his options; and
14,701 shares that would be issued upon an election to convert
Preferred Stock into Common Stock.
<F5> Reflects 69,750 shares that may be acquired by Mr. Palmer
upon exercise of his options; 12,817 shares that would be issued
upon election to convert Preferred Stock into Common Stock.
<F6> Reflects 19,350 shares that may be acquired by Ms. Chambers
upon exercise of her options; 1,174 shares that would be issued upon
an election to convert Preferred Stock into Common Stock.
<F7> Reflects 16,500 shares that may be acquired by Mr. Meredith
upon exercise of his options; 1,913 shares that would be issued upon
an election to convert Preferred Stock into Common Stock.
<F8> Reflects 15,000 shares that may be acquired by Mr. Reed upon
exercise of his options; 5,125 shares that would be issued upon
an election to convert Preferred Stock into Common Stock.
<F9> Mr. Mead and Mr. Elias became directors subsequent to February
28, 1998. Reflects 6,408 shares that may be acquired by Mr. Mead
upon an election to convert Preferred Stock into Common Stock.
<F10> Includes an aggregate of 146,391 shares that may be acquired
by the group upon the exercise of options and an aggregate of 36,693
shares that would be issued upon all such persons electing to
convert their Preferred Stock into Common Stock.
</FN>
</TABLE>
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The Company, through the Bank, from time to time, makes loans and
extends credit to certain of its directors and officers and their
affiliates. The aggregate amount of loans to related parties at
December 31, 1997 totaled approximately $546,000 or 3.94% of
stockholders' equity. These loans were made on substantially the
same terms as those prevailing at the time for comparable
transactions with other persons and did not involve more than the
normal risk of collectibility or present other unfavorable features.
DESCRIPTION OF CAPITAL STOCK
Set forth below is a summary of certain terms and provisions of the
Company's capital stock, which is qualified in its entirety by
reference to the Company's Articles of Incorporation and to the
Statements of Designation setting forth the resolutions establishing
the rights and preferences of the Company's stock. Copies of the
Articles of Incorporation and Statements of Designation have been
attached as exibits to the Registration Statement of which this
Prospectus forms a part, and are incorporated herein by reference.
Under the Articles of Incorporation, the authorized but unissued and
unreserved shares of the Company's capital stock will be available
for issuance for general corporate purposes, including, but not
limited to, possible stock dividends, future mergers or acquisitions,
or private or public offerings. Except as may otherwise be required,
shareholder approval will not be required for the issuance of those
shares.
The following table sets forth all classes of stock outstanding, and
stock options held, as of February 28, 1998, as well as the amount
of Common Stock which would be outstanding upon exercise or
conversion of all outstanding options and convertible securities:
<TABLE>
<CAPTION>
Shares of Total Shares
Shares and Options Common Stock Assuming
Outstanding Convertible into Conversion
<S> <C> <C> <C>
Common Stock 1,249,985 - 1,249,985
Preferred Stock 54,366 122,323 122,323
Stock Options 250,281 250,281 250,281
Total 1,554,632 372,604 1,622,589
</TABLE>
The authorized capital stock of the Company consists of 2,500,000
shares of Common Stock, $.01 par value, of which 1,249,985 shares
are presently issued and outstanding, and 1,000,000 shares of
preferred stock, $.01 par value, of which 54,366 shares are
presently issued and outstanding. At February 28, 1998 there were
approximately 214 holders of Common Stock.
Common Stock
Dividends. The holders of the Common Stock are entitled to dividends
and other distributions if, as, and when declared by the Board of
Directors out of assets legally available therefor. Upon the
liquidation, dissolution or winding up of the Company, the holder
of each share of Common Stock will be entitled to share equally in the
distribution of the Company's assets. The holders of Common Stock
are not entitled to the benefit of any sinking fund provision. The
shares of Common Stock of the Company are not subject to any
redemption provisions, nor are they convertible into any other
security or property of the Company.
Voting Rights. The holders of Common Stock are entitled to elect the
members of the Board of Directors of the Company and such holders
are entitled to vote as a class on all matters required or permitted
to be submitted to the shareholders of the Company.
Stock Options. The Company has adopted a 1994 Non-Statutory Stock
Option Plan (the "1994 Plan"). The 1994 Plan authorizes the
issuance of up to 300,000 shares of Common Stock pursuant to
"non-qualified" options granted to key employees of the Company.
These options to acquire the Company's Common Stock are granted
for terms of five years. Certain options vest over a five year period at
a rate of 20% per year, with up to three years prior service credit
given against said vesting requirement. All options vest immediately
upon a change in control of the Company. The options terminate upon
the termination of the option holder's employment with the
Company although the option agreement provides for one year
extensions of the period of exerciseability of the options in the
event of termination by retirement, disability or death. The purchase
price of the shares is the fair market value per share of the Common
Stock on the date of grant. In the absence of any arm's length trades
in the three months preceding the date of grant, "fair market value
per share" is the total equity available to holders of Common Stock
divided by the total number of outstanding shares of Common Stock.
At December 31, 1997, options to purchase 205,581 shares of
Common Stock granted to 21 employees and non-employee directors
were outstanding, with per share exercise prices ranging from $9.55
to $10.52, 65,919 shares of Common Stock remained available for
future grants, and 28,500 shares of Common Stock had been issued
upon exercise of stock options.
Preferred Stock
The Company's Articles of Incorporation authorize the issuance, in
series, of up to 1,000,000 shares of preferred stock and permits the
Company's Board of Directors to establish the rights and preference
of each of such series and to increase the number of shares in any
of the series. As of February 28, 1998, 54,366 shares of Series A
Preferred Stock, $.01 par value per share (the "Preferred Stock"),
were outstanding.
Dividends. The total annual dividend requirement for the Company's
Preferred Stock outstanding as of December 31, 1997 is $91,970.
The holders of all issued and outstanding shares of Preferred Stock
are entitled to receive, when and as declared by the Board of
Directors out of any funds legally available therefor, dividends on
the $20.00 liquidation preference per share of Preferred Stock, at
the rate of eight and one-half percent (8.5%) per annum (computed
on the basis of actual days elapsed and a three hundred sixty-five (365)
day year) (the "8.5% Dividends"). The 8.5% Dividends accrue and are
cumulative to the extent unpaid, but without interest thereon,
whether or not they have been declared and whether or not there are
profits, surplus or other funds of the Company legally available for
the payment of dividends. The 8.5% Dividends are due and payable
with respect to any share of Preferred Stock commencing on January
1, 1997 and quarterly thereafter (a "Dividend Payment Date"), or
upon any redemption or conversion of such share of Preferred Stock
into Common Stock. All numbers relating to the calculation of 8.5%
Dividends are subject to equitable adjustment in the event of any
stock split, combination, reorganization, recapitalization,
reclassification or other similar event involving a change in the
Preferred Stock.
Voting Rights. The holders of Preferred Stock do not have any right
to vote, except as to any matter on which holders of Preferred Stock
are required to have a vote under applicable law: (i) each holder
of record shall be entitled to one vote for each share of Preferred
Stock standing in his name on the books of the Company and (ii)
except as required by applicable law, the holders of Preferred Stock
(to the extent of any voting rights) shall vote together as a single
class on all matters as to which holders of Preferred Stock are
entitled to vote. Also, if the Company fails to pay a dividend on
a Dividend Payment Date to the holders of Preferred Stock, then and
thereafter until all past dividends are paid, the holders of Preferred
Stock shall have voting rights equal to one vote per amount of
Common Stock into which the Preferred Stock could be converted
(that is, one and one-half votes per share of Preferred Stock). At
such time as all cumulative dividends have been paid in full, the
voting rights of the holders of Preferred Stock shall, without
further action, terminate, subject to reinstatement if thereafter
the Company fails to pay a dividend on a Dividend Payment Date.
Conversion Rights. The shares of Preferred Stock are convertible at
any time at the option of the record holder thereof into fully paid
and non-assessable shares of Common Stock of the Company at the
rate of 2.25 shares of Common Stock for each share of Preferred
Stock.
Liquidation. In the event of any liquidation, dissolution or winding
up of the Company, whether voluntary or involuntary ("Liquidation
Event"), each holder of outstanding shares of Preferred Stock is
entitled to be paid out of the assets of the Company available for
distribution to shareholders, whether such assets are capital,
surplus or earnings as follows, and before any amount shall be paid
or distributed to the holders of any class of Common Stock or of any
other stock ranking upon liquidation junior to the Preferred Stock,
an amount in cash equal to $20.00 per share (adjusted appropriately
for stock splits, stock dividends and the like) (the "Series A
Liquidation Amount") together with any accrued and unpaid 8.5%
Dividends. However, if upon any Liquidation Event the amounts
payable with respect to the Preferred Stock and any other stock
ranking as to any such distribution on parity with the Preferred
Stock are not paid in full, the holders of the Preferred Stock and
such other stock are to share ratably in any distribution of assets
in proportion to the full respective preferential amounts to which they
are entitled.
Redemption. The Company may, at its option, upon 30 days prior
written notice, and to the extent it may do so under applicable law,
redeem one hundred percent (100%) of the then outstanding shares of
Preferred Stock on or after November 1, 1998. The redemption price
(the "Redemption Price") for each share of the Preferred Stock
redeemed shall be the sum of (a) the Series A Liquidation Amount,
plus (b) the amount of any accrued and unpaid 8.5% Dividends. The
Redemption Price shall be paid in cash or immediately available
funds within thirty (30) days of the Redemption Price.
Rank. The Preferred Stock ranks senior, both as to payment of
dividends and as to distributions of assets upon liquidation,
dissolution or winding up of the Company, whether voluntary or
involuntary, to all of the Company's now or hereafter issued
Common Stock.
Preemptive Rights; Assessability. Each holder of Preferred Stock has
the preemptive right to purchase or subscribe for his pro rata share
of capital stock of the Company for all new issues of any class of
stock of the Company, no matter when authorized, and for whatever
consideration is contemplated to be received by the Company,
including, but not limited to, cash, other property, services, the
acquisition of other company shares or property through merger or
the extinguishment of debts. These preemptive rights apply to any
Company obligation which is convertible to or exchangeable for any
stock of the Company, or where there is attached to such obligation
any stock warrants or rights which allow the holder to acquire by
subscription or purchase any stock of the Company. Preemptive
rights do not apply to the reissuance of redeemed or otherwise
acquired shares which are not restored to the status of authorized
but unissued shares. Preemptive rights do not apply to capital stock
issued in connection with stock option plans or employee stock
benefit plans, or stock issued in connection with any acquisition
of any business or entity. The outstanding Preferred Stock is fully paid
and non-assessable.
Certain Anti-takeover Provisions
Certain provisions of the Company's Articles of Incorporation and
Bylaws, as well as certain provisions of Florida law, could have the
effect of deterring takeovers. The Board of Directors believes that
the provisions of the Company's Articles of Incorporation and
Bylaws described below are prudent and in the best interests of the
Company and its shareholders. Although these provisions may
discourage a future takeover attempt in which shareholders might
receive a premium for their shares over the then current market
price and may make removal of incumbent management more
difficult, the Board of Directors believes that the benefits of these
provisions outweigh their possible disadvantages. Management is not
aware of any current effort to effect a change in control of the
Company. In addition, the Company has opted not to be governed by
the affiliated transactions and control-share acquisitions sections
of the Florida Business Corporation Act.
Directors. The Board of Directors is divided into three classes of
directors serving staggered three-year terms. Vacancies on the
Board may be filled for the remainder of the unexpired term by a
majority vote of the directors then in office. The maximum number
of members of the Company's Board of Directors is 12.
Shareholders entitled to vote may nominate persons for election as
directors only if written notice is given not later than (i) with
respect to an annual meeting, 60 days in advance of the meeting, and
(ii) with respect to a special meeting, the close of business on the
seventh day following the date on which notice of the meeting is
first given.
Cumulative Voting. Shareholders may not cumulate their votes in the
election of directors.
Capital Structure. The Board of Directors may authorize for issuance
various series of Preferred Stock with different voting rights. The
Board of Directors is authorized to establish the rights and
preferences of such stock and issue such shares, subject to
shareholder approval in certain circumstances.
Limited Liability and Indemnification
Under the Florida Business Corporation Act (the "FBCA"), a director
is not personally liable for monetary damages to the corporation or
any other person for any statement, vote, decision or failure to act
unless (i) the director breached or failed to perform his duties as
a director and (ii) a director's breach of, or failure to perform, those
duties constitutes (1) a violation of the criminal law, unless the
director had reasonable cause to believe his conduct was lawful or
had no reasonable cause to believe his conduct was unlawful, (2) a
transaction from which the director derived an improper personal
benefit, either directly or indirectly, (3) a circumstance under which
an unlawful distribution is made, (4) in a proceeding by or in the
right of the corporation to produce a judgement in its favor or by
or in the right of a shareholder, conscious disregard for the best
interest of the corporation or willful misconduct, or (5) in a
proceeding by or in the right of someone other than the corporation
or a shareholder, recklessness or an act or omission which was
committed in bad faith or with malicious purpose or in a manner
exhibiting wanton and willfur disregard of human rights, safety or
property. A corporation may purchase and maintain insurance on
behalf of any director or officer against any liability asserted
against him and incurred by him in his capacity or arising out of
his status as such, whether or not the corporation would have the power
to indemnity him against such liability under the FBCA.
Article X of the Articles of Incorporation of the Company provides
that the Company shall indemnify and may insure its officers and
directors to the fullest extent permitted by law.
Transfer Agent
The Company's transfer agent is American Stock Transfer & Trust
Company, New York, New York.
SHARES ELIGIBLE FOR FUTURE SALE
Upon consummation of this Offering, the Company will have
2,037,308 shares of Common Stock outstanding (2,137,058 shares if
the over-allotment option granted to the Underwriters is exercised
in full). Of these shares, the 665,000 shares sold in this Offering
(764,750 shares if the over-allotment option is exercised in full)
will be freely transferable without restriction or registration under
the Securities Act, unless purchased by persons deemed to be
"affiliates" (as that term is defined under the Securities Act) of
the Company. The remaining 1,372,308 shares of Common Stock to be
outstanding immediately following the Offering may only be sold in
the public market if such shares are registered under the Securities
Act or sold in accordance with Rule 144 promulgated under the
Securities Act.
In general, under Rule 144 a person (or persons whose shares are
aggregated), including an affiliate, who has beneficially owned his
shares for one year may sell in the open market within any three-
month period a number of shares that does not exceed the greater of
(i) 1% of the then outstanding shares of the Company's Common
Stock (approximately 20,373 shares immediately after this
Offering, 21,370 if the over-allotment option is exercised in full)
or (ii) the average weekly trading volume in the Common Stock in the
over-the-counter market during the four calendar weeks preceding
such sale. Sales under Rule 144 are also subject to certain
limitations on the manner of sale, notice requirements and
availability of current public information about the Company. A
person (or persons whose shares are aggregated) who is deemed not
to have been an "affiliate" of the Company at any time during the
90 days preceding a sale by such person and who has beneficially owned
his shares for at least two years may sell such shares in the public
market under Rule 144(k) without regard to the volume limitations,
manner of sale provisions, notice requirements or availability of
current information referred to above. Shares properly sold in
reliance upon Rule 144 are thereafter freely tradable without
restrictions or registration under the Securities Act, unless
thereafter held by an "affiliate" of the Company.
The Company has reserved an aggregate of 300,000 shares of
Common Stock for issuance pursuant to the 1994 Plan. The Company
intends to register eligible shares of Common Stock issuable upon
the exercise of options under the Plan on Form S-8 following this
offering. Subject to restrictions imposed pursuant to the 1994 Plan
such eligible shares of Common Stock issued pursuant to the 1994
Plan after the effective date of any Registration Statement on Form
S-8 will be available for sale in the public market without
restriction to the extent they are held by persons who are not
affiliates of the Company. See "Management-Employee Stock Option
Plan."
Prior to this Offering, there has been no trading market for the
Common Stock. No prediction can be made as to the effect, if any,
that future sales of shares pursuant to Rule 144 or otherwise will
have on the market price prevailing from time to time. Sales of
substantial amounts of the Common Stock in the public market
following this Offering could adversely affect the then prevailing
market price. The Company and its executive officers, directors and
certain of the Company's existing shareholders are agreeing that
they will not sell or otherwise transfer any shares of Common Stock
for 180 days after this Offering without the prior written consent
of the Representatives. See "Risk Factors' Shares Eligible for Future
Sale" and "Underwriting."
UNDERWRITING
Subject to the terms and conditions of the Purchase Agreement
between the Company and the underwriters named below (the
"Underwriters"), for whom Keefe, Bruyette & Woods, Inc. and
McGinn, Smith & Co., Inc. are acting as representatives (the
"Representatives"), the Underwriters have severally agreed to
purchase from the Company, and the Company has agreed to sell to
the Underwriters, the following respective number of shares of
Common Stock at the initial public offering price less the
underwriting discounts set forth on the cover page of this
Prospectus.
Number of
Name Shares
Keefe, Bruyette & Woods, Inc.
McGinn, Smith & Co., Inc.
Total
The Purchase Agreement provides that the obligations of the
Underwriters are subject to certain conditions precedent and that
the Underwriters will purchase all such shares of Common Stock if
any of such shares are purchased. The Underwriters are obligated to
take and pay for all of the shares of Common Stock offered hereby
(other than those covered by the over-allotment option described
below) if any are taken.
The Company has been advised by the Representatives of the
Underwriters that the Underwriters propose to offer such shares of
Common Stock to the public at the public offering price set forth
on the over page of this Prospectus and to certain dealers at such price
less a concession not in excess of $________ per share. The
Underwriters may allow, and such dealers may re-allow, a
concession not in excess of $_______ per share to certain other
dealers. After the initial public offering, the offering price and
other selling terms may be changed by the Representatives of the
Underwriters.
Pursuant to the Purchase Agreement, the Company has granted to the
Underwriters an option, exercisable not later than 30 days after the
date of this Prospectus, to purchase up to 99,750 additional shares
of Common Stock at the public offering price, less the underwriting
discounts set forth on the cover page of this Prospectus, solely to
cover over-allotments. To the extent that the Underwriters exercise
such option, each Underwriter will become obligated, subject to
certain conditions, to purchase approximately the same percentage
of such additional shares as the number set forth next to such
Underwriter's name in the preceding table bears to the total number
of shares in such table, and the Company will be obligated, pursuant
to the option, to sell such shares to the Underwriters.
The Company, each of its directors and executive officers, and
certain of the shareholders of the Company have agreed not to sell
or otherwise dispose of any shares of Common Stock for a period of
180 days after the date of this Prospectus without the prior written
consent of the Representatives of the Underwriters, except that the
Company may issue shares of Common Stock upon the exercise of
currently outstanding options. See "Risk Factors - Shares Eligible
for Future Sale."
The Representatives of the Underwriters have advised the Company
that the Underwriters do not intend to confirm sales to any account
over which they exercise discretionary authority.
The Company has agreed to indemnify the Underwriters against
certain liabilities, including liabilities under the Securities Act.
Until the distribution of the Common Stock is completed, rules of
the Securities and Exchange Commission (the "Commission") may
limit the ability of the Underwriters and certain selling group
members to bid for and purchase the Common Stock. As an exception
to these rules, the Underwriters are permitted to engage in certain
transactions that stabilize the price of the Common Stock. Such
transactions consist of bids or purchases for the purpose of pegging,
fixing or maintaining the price of the Common Stock.
If the Underwriters create a short position in the Common Stock in
connection with the Offering, i.e., if they sell a greater aggregate
number of shares of Common Stock than is set forth on the cover
page of this Prospectus, the Underwriters may reduce the short
position by purchasing shares of Common Stock in the open market.
The Underwriters may also elect to reduce any short position by
exercising all or part of the over-allotment option described above.
The Underwriters may also impose a penalty bid on certain selling
group members. This means that if the Underwriters purchase
Common Stock in the open market to reduce the selling group
members' short position or to stabilize the price of the Common
Stock, they may reclaim the amount of the selling concession from
the selling group members who sold those shares of Common Stock
as part of the Offering.
In general, purchases of a security for the purpose of stabilization
or to reduce a short position could cause the price of the security
to be higher than it might be in the absence of such purchases. The
imposition of a penalty bid might also have an effect on the price
of a security to the extent that it were to discourage resales of the
security.
Neither the Company nor the Representatives make any
representation or prediction as to the direction or magnitude of any
effect that the transactions described above may have on the price
of the Common Stock. In addition, neither the Company nor the
Representatives make any representation that the Underwriters will
engage in such transactions or that such transactions, once
commenced, will not be discontinued without notice.
Prior to the Offering, there has been no public market for the
Common Stock. Consequently, the initial public offering price for
the Common Stock has been determined by negotiations between the
Company and the Representatives of the Underwriters. Among the
factors considered in such negotiations were prevailing market and
general economic conditions, the market capitalizations, trading
histories and stages of development of other traded companies that
the Company and the Representatives of the Underwriters believed
to be comparable to the Company, the results of operations of the
Company in recent periods, the current financial position of the
Company, estimates of the business potential of the Company and
the present state of the Company's development and the availability
for sale in the market of a significant number of shares of Common
Stock. Additionally, consideration has been given to the general
status of the securities market, the market conditions for new
issues of securities and the demand for securities of comparable
companies at the time the Offering was made.
Timothy McGinn is the Chairman of the Board of McGinn, Smith & Co.,
Inc. He has also served as a director of the Company since 1994 and
is a shareholder of the Company. See "Management-Directors and
Executive Officers of the Company."
Application has been made for quotation of the Common Stock on
Nasdaq.
LEGAL MATTERS
The validity of the shares of Common Stock offered hereby will be
passed upon for the Company by Stuzin and Camner, P.A., 550
Biltmore Way, Suite 700, Coral Gables, Florida 33134, counsel to the
Company. Certain legal matters with respect to the Common Stock
offered hereby will be passed upon for the Underwriters by Brown &
Wood LLP.
EXPERTS
The consolidated financial statements of the Company and
subsidiaries at December 31, 1997 and 1996 and for each of the
three years in the period ended December 31, 1997, included
elsewhere in the Registration Statement have been included in
reliance upon the report of Hacker, Johnson, Cohen & Grieb PA,
independent certified public accountants, given upon the authority
of said firm as experts in accounting and auditing matters.
AVAILABLE INFORMATION
Prior to the Offering, the Company has not been required to file
reports under the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
The Company has filed with the Commission a Registration
Statement on Form SB-2 (together with all exhibits and schedules
thereto, the "Registration Statement") under the Securities Act
with respect to the registration of the shares offered by this
Prospectus. This Prospectus does not contain all of information set
forth in such Registration Statement and the exhibits thereto,
certain parts of which are omitted in accordance with the rules and
regulations of the Commission. For further information pertaining
to the shares offered by this Prospectus and related matters, reference
is made to such Registration Statement, including the exhibits filed
as a part thereof. Each statement in this Prospectus referring to
a document filed as an exhibit to such Registration Statement is
qualified by reference to the exhibit for a complete statement of
its terms and conditions.
The Registration Statement filed by the Company can be inspected
and copies at the public reference facilities maintained by the
Commission at its Public Reference Section, 450 Fifth Street, N.W.,
Washington, D.C. 20549. The Commission maintains a web site that
contains registration statements, reports, proxy and information
statements and other information regarding registrants that file
electronically with the Commission. The address of such Web Site is
http://www.sec.gov. Copies of exhibits may also be obtained by
written request addressed to: Bradley R. Meredith, Chief Financial
Officer, 21845 Powerline Road, Boca Raton, Florida 33433.
The Company intends to furnish annual reports to its shareholders
which will contain audited financial statements and quarterly
reports which will contain unaudited financial statements. In
addition, the Company will be required, under section 15(d) of the
Exchange Act, to file annual and quarterly reports with the
Commission. Copies of such reports will be available to the
Company's shareholders.
Index to Financial Statements
POINTE FINANCIAL CORPORATION AND SUBSIDIARIES
Page
Audited Consolidated Financial Statements
Independent Auditors' Report F-2
Consolidated Balance Sheets, December 31, 1997 and 1996 F-3
Consolidated Statements of Operations for the Years Ended
December 31, 1997, 1996 and 1995 F-4
Consolidated Statements of Stockholders' Equity for the
Years Ended December 31, 1997, 1996 and 1995 F-5
Consolidated Statements of Cash Flows for the Years
Ended December 31, 1997, 1996 and 1995 F-6
Notes to Consolidated Financial Statements for the Years
Ended December 31, 1997, 1996 and 1995 F-7-F-25
All schedules are omitted because of the absence of the conditions
under which they are required or because the required information
is included in the financial statements and related notes.
Independent Auditors' Report
Board of Directors
Pointe Financial Corporation
Boca Raton, Florida:
We have audited the consolidated balance sheets of Pointe Financial
Corporation and Subsidiaries (the "Company") at December 31, 1997
and 1996, and the related consolidated statements of operations,
stockholders' equity, and cash flows for each of the years in the
three-year period ended December 31, 1997. These financial
statements are the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial statements
based on our audits.
We conducted our audits in accordance with generally accepted
auditing standards. Those standards require that we plan and
perform the audits to obtain reasonable assurance about whether the
financial statements are free of material misstatement. An audit
includes examining, on a test basis, evidence supporting the amounts
and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates
made by management, as well as evaluating the overall financial
statement presentation. We believe that our audits provide a
reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to
above present fairly, in all material respects, the financial position
of the Company at December 31, 1997 and 1996, and the results of
its operations and its cash flows for each of the years in the three-
year period ended December 31, 1997 in conformity with generally
accepted accounting principles.
HACKER, JOHNSON, COHEN & GRIEB PA
Tampa, Florida
February 14, 1998
POINTE FINANCIAL CORPORATION AND SUBSIDIARIES
Consolidated Balance Sheets
($ in thousands, except per share amounts)
<TABLE>
<CAPTION>
At December 31,
Assets 1997 1996
<S> <C> <C>
Cash and due from banks $ 2,272 2,861
Interest bearing deposits with banks 303 3,802
Total cash and cash equivalents 2,575 6,663
Securities available for sale 22,745 32,920
Securities held to maturity 7,764 8,204
Loans receivable, net of allowance for
loan losses of $848 in 1997 and $777 in 1996 105,653 90,973
Loans held for sale 4,443 4,396
Accrued interest receivable 1,027 1,181
Premises and equipment, net 1,225 1,275
Restricted securities:
Federal Home Loan Bank stock 1,271 1,555
Federal Reserve Bank stock 299 111
Foreclosed real estate 105 270
Deferred income tax asset 224 621
Other assets 509 3,089
Total $147,840 151,258
Liabilities and Stockholders' Equity
Liabilities:
Demand deposits 12,136 9,386
Savings and NOW deposits 17,974 20,933
Money-market deposits 30,186 25,194
Time deposits 64,699 56,985
Total deposits 124,995 112,498
Official checks 1,320 1,263
Other borrowings 1,791 774
Advances from Federal Home Loan Bank 4,400 22,972
Accrued interest payable 673 953
Advance payments by borrowers for taxes and insurance 333 30
Other liabilities 483 347
Total liabilities 133,995 138,837
Commitments and contingencies (Notes 5, 9 and 10)
Stockholders' equity:
Preferred stock, $.01 par value, 1,000,000
shares authorized, 60,000 shares designated
as Series A, convertible and cumulative,
54,116 and 39,250 shares issued and outstanding
(aggregate liquidation value $1,082 and $785) 1 1
Common stock, $.01 par value, 2,500,000 shares
authorized; 831,728 and 812,728 shares issued
and outstanding 8 8
Additional paid-in capital 10,935 10,452
Retained earnings 3,039 2,206
Unrealized depreciation on securities available
for sale, net of taxes of $83 in 1997
and $146 in 1996 (138) (246)
Total stockholders' equity 13,845 12,421
Total $147,840 151,258
See Accompanying Notes to Consolidated Financial Statements
</TABLE>
POINTE FINANCIAL CORPORATION AND SUBSIDIARIES
Consolidated Statements of Operations
($ in thousands except per share amounts)
<TABLE>
<CAPTION>
Year Ended December 31,
1997 1996 1995
<S> <C> <C> <C>
Interest income:
Loans receivable $ 9,427 9,001 11,024
Securities available for sale 1,892 2,330 1,759
Securities held to maturity 510 542 1,497
Other interest earning assets 103 313 410
Total interest income 11,932 12,186 14,690
Interest expense:
Deposits 5,368 5,814 8,232
Borrowings 961 1,802 1,687
Total interest expense 6,329 7,616 9,919
Net interest income 5,603 4,570 4,771
Provision for loan losses 80 185 336
Net interest income after provision
for loan losses 5,523 4,385 4,435
Noninterest income:
Service charges on deposit accounts 502 364 315
Gain on sale of loan servicing rights 29 131 192
Loan servicing fees 70 170 180
Net gains from sale of loans 479 1,048 560
Net realized gains on sale of securities
available for sale 29 91 1
Equity in earnings of limited partnership - 365 507
Other 303 265 167
Total noninterest income 1,412 2,434 1,922
Noninterest expenses:
Salaries and employee benefits 2,657 3,169 3,165
Occupancy expense 1,100 1,251 1,169
Advertising and promotion 257 142 226
Loan servicing expense 36 150 88
Professional fees 157 286 225
Federal deposit insurance premiums 82 283 390
Data processing 403 428 275
Other 779 1,138 1,822
Noninterest expenses before SAIF
recapitalization assessment 5,471 6,847 7,360
SAIF recapitalization assessment - 926 -
Total noninterest expenses 5,471 7,773 7,360
Earnings (loss) before income
taxes (benefit) 1,464 (954) (1,003)
Income taxes (benefit) 550 (355) (376)
Net earnings (loss) $ 914 (599) (627)
Earnings (loss) per share:
Basic $ .68 (.52) (.51)
Diluted $ .62 (.52) (.51)
See Accompanying Notes to Consolidated Financial Statements
</TABLE>
POINTE FINANCIAL CORPORATION AND SUBSIDIARIES
Consolidated Statements of Stockholders' Equity
(In thousands)
<TABLE>
<CAPTION>
Unrealized
Depreciation
on
Convertible Additional Securities Total
Preferred Common Paid-In Retained Available Stockholders'
Stock Stock Capital Earnings for Sale Equity
<S> <C> <C> <C> <C> <C> <C>
Balance at December 31, 1994 $- 8 9,716 3,467 (675) 12,516
Net loss - - - (627) - (627)
Net change in unrealized
depreciation on available-
for-sale securities,
net of taxes - - - - 625 625
Balance at December 31, 1995 - 8 9,716 2,840 (50) 12,514
Sale of preferred stock
net of offering costs 1 - 736 - - 737
Cash dividends declared on
preferred stock - - - (35) - (35)
Net loss - - - (599) - (599)
Net changes in unrealized
depreciation on available-
for-sale securities,
net of taxes - - - - (196) (196)
Balance at December 31, 1996 1 8 10,452 2,206 (246) 12,421
To adjust 1996 preferred dividend
for portion paid in preferred
stock (1,398 shares) - - 27 - - 27
Cash dividends on preferred
stock - - - (16) - (16)
Stock dividends on preferred
stock (3,218 shares) - - 65 (65) - -
Proceeds from issuance of
preferred stock, net of
offering costs (10,250 shares) - - 201 - - 201
Common stock options exercised
(19,000 shares) - - 190 - - 190
Net earnings - - - 914 - 914
Net changes in unrealized
depreciation on available-
for-sale securities,
net of taxes - - - - 108 108
Balance at December 31, 1997 $1 8 10,935 3,039 (138) 13,845
See Accompanying Notes to Consolidated Financial Statements
</TABLE>
POINTE FINANCIAL CORPORATION AND SUBSIDIARIES
Consolidated Statements of Cash Flows
(In thousands)
<TABLE>
<CAPTION>
Year Ended December 31,
1997 1996 1995
<S> <C> <C> <C>
Cash flows from operating activities:
Net earnings (loss) $ 914 (599) (627)
Adjustments to reconcile net earnings (loss) to net cash provided
by (used in) operating activities:
Provision for loan losses 80 185 336
Depreciation and amortization 414 555 536
Provision (credit) for deferred income taxes 334 (355) (376)
Decrease (increase) in other assets 2,580 (224) 590
Equity in earnings of limited partnership - (365) (507)
Gain on sale of securities available for sale (29) (91) (1)
Gain on sale of loans and loan servicing rights (508) (1,179) (752)
Originations of loans held for sale (9,005) (51,533) (55,650)
Proceeds from sale of loans held for sale 9,437 66,746 44,346
Increase (decrease) in official checks 57 (755) (997)
(Decrease) increase in accrued interest payable (280) (1,037) 508
Increase (decrease) in other liabilities 132 (215) (563)
Decrease (increase) in accrued interest receivable 154 1 (109)
Net amortization of fees, premiums, discounts and other (134) 156 177
Net cash provided by (used in) operating activities 4,146 11,290 (13,089)
Cash flows from investing activities:
Purchase of securities available for sale (5,098) (19,539) (4,711)
Proceeds from sale of available-for-sale securities 13,578 20,157 8,852
Purchase of premises and equipment, net (364) (221) (555)
Principal repayments on securities available for sale 1,029 2,036 2,826
Principal repayments on securities held to maturity 440 608 -
Proceeds from sale of limited partnership - 5,872 -
Net (increase) decrease in loans (14,816) 13,331 18,423
Proceeds from sale of foreclosed real estate 253 - 243
Investment in limited partnership - - (462)
Maturities of securities available for sale 1,000 2,264 -
Net decrease in restricted securities 96 - -
Net cash (used in) provided by investing activities (3,882) 24,508 24,616
Cash flows from financing activities:
Net increase in demand, savings, NOW and money-market deposits 4,783 12,879 8,169
Net increase (decrease) in time deposits 7,714 (43,054) (29,583)
Net (decrease) increase in Federal Home Loan Bank advances (18,572) (4,218) 17,000
Net increase (decrease) in other borrowings 1,017 (5,251) (1,788)
Decrease in federal funds purchased - - (800)
Increase (decrease) in advance payments for taxes and insurance 303 (440) (170)
Proceeds from issuance of preferred stock net of offering costs 201 737 -
Proceeds from issuance of common stock 190 - -
Cash dividends paid on preferred stock 12 - -
Net cash used in financing activities (4,352) (39,347) (7,172)
Net (decrease) increase in cash and cash equivalents (4,088) (3,549) 4,355
Cash and cash equivalents at beginning of year 6,663 10,212 5,857
Cash and cash equivalents at end of year $ 2,575 6,663 10,212
Supplemental disclosure of cash flow information:
Cash paid during the year for:
Interest $ 6,609 8,653 9,411
Income taxes $ 160 200 179
Noncash transactions:
Reclassification of loans receivable to
foreclosed real estate $ 156 270 102
Reclassification of foreclosed real estate
to loans receivable $ 68 - -
Unrealized appreciation (depreciation) on securities
available for sale, net of income taxes $ 108 (196) 625
Dividend payable on preferred stock $ 4 35 -
Stock dividends paid on preferred stock $ 65 - -
Conversion of mortgage loans to mortgage-backed securities $ - - 3,214
See Accompanying Notes to Consolidated Financial Statements.
</TABLE>
POINTE FINANCIAL CORPORATION AND SUBSIDIARIES
Notes to Consolidated Financial Statements
For the Years Ended December 31, 1997, 1996 and 1995
(1) Description of Business and Summary of Significant Accounting
Policies
General. Pointe Financial Corporation (the "Holding Company") was
formed in September 1993 and received approval from the
appropriate authorities to become both a savings and loan holding
company and a bank holding company. Prior to April 14, 1997, the
Holding Company owned 100% of Pointe Federal Savings Bank
("Pointe Federal"), a federally-chartered thrift, Pointe Bank (the
"Bank"), a state-chartered commercial bank and Pointe Financial
Services, Inc. (collectively the "Company"). On April 14, 1997, Pointe
Federal was merged into the Bank. The Bank provides a wide range of
community banking services to small- and middle-market
businesses and individuals through its three banking offices located
in Broward, Dade and Palm Beach counties, Florida. Pointe Financial
Services, Inc. is an inactive subsidiary.
Basis of Presentation. The accompanying consolidated financial
statements include the Holding Company and its subsidiaries. All
significant intercompany accounts and transactions have been
eliminated in consolidation.
The accounting and reporting policies of the Company conform to
generally accepted accounting principles and to general practices
within the banking industry. The following summarizes the more
significant of these policies and practices.
Estimates. The preparation of financial statements in conformity
with generally accepted accounting principles requires management
to make estimates and assumptions that affect the reported
amounts of assets and liabilities and disclosure of contingent
assets and liabilities at the date of the financial statements and
the reported amounts of revenues and expenses during the reporting
period. Actual results could differ from those estimates.
Securities. The Company may classify its securities as either
trading, held to maturity or available for sale. Trading securities
are held principally for resale and recorded at their fair values.
Unrealized gains and losses on trading securities are included
immediately in earnings. Held-to-maturity securities are those
which the Company has the positive intent and ability to hold to
maturity and are reported at amortized cost. Available-for-sale
securities consist of securities not classified as trading securities
nor as held-to-maturity securities. Unrealized holding gains and
losses, net of tax, on available-for-sale securities are reported
as a net amount in a separate component of stockholders' equity until
realized. Gains and losses on the sale of available-for-sale
securities are determined using the specific-identification method.
Premiums and discounts on securities available for sale and held to
maturity are recognized in interest income using the interest
method over the period to maturity.
Loans Held for Sale. Loans held for sale are carried at the lower
of cost or estimated market value in the aggregate. Net unrealized
losses are recognized through a valuation allowance by charges to
earnings. At December 31, 1997 and 1996 the book value of loans
held for sale approximated market value in the aggregate.
Loan origination fees and direct loan origination costs are deferred
until the related loan is sold, at which time the net fees are
included in the gain on sale of loans in the consolidated statements
of operations.
Loans Receivable. Loans receivable that management has the intent
and ability to hold for the foreseeable future or until maturity or
pay-off are reported at their outstanding principal adjusted for any
charge-offs, the allowance for loan losses, and any deferred fees
or costs on originated loans.
Loan origination fees and certain direct origination costs are
capitalized and recognized as an adjustment of the yield of the
related loan.
The accrual of interest on impaired loans is discontinued when, in
management's opinion, the borrower may be unable to meet payments
as they become due. When interest accrual is discontinued, all unpaid
accrued interest is reversed. Interest income is subsequently
recognized only to the extent cash payments are received.
The allowance for loan losses is increased by charges to earnings
and decreased by charge-offs (net of recoveries). Management's
periodic evaluation of the adequacy of the allowance is based on the
Company's past loan loss experience, known and inherent risks in the
portfolio, adverse situations that may affect the borrower's ability
to repay, the estimated value of any underlying collateral, and
current economic conditions.
Investment in Limited Partnership. The Company accounted for its
investment in a limited partnership by the equity method. In
accordance with this method, the Company included its share of
partnership's earnings or losses in the determination of the
Company's net earnings or loss and adjusted its recorded investment
in the partnership by a corresponding amount. Distributions from the
partnership reduced the Company's recorded investment. This
investment was sold in 1996.
Foreclosed Real Estate. Real estate properties acquired through, or
in lieu of, loan foreclosure are to be sold and are initially recorded
at fair value at the date of foreclosure establishing a new cost
basis. After foreclosure, valuations are periodically performed by
management and the real estate is carried at the lower of carrying
amount or fair value less cost to sell. Revenue and expenses from
operations and changes in the valuation allowance are included in
the consolidated statements of operations.
Premises and Equipment. Premises, furniture, fixtures, equipment
and leasehold improvements are carried at cost, less accumulated
depreciation and amortization computed by the straight-line method.
Income Taxes. Deferred tax assets and liabilities are reflected at
currently enacted income tax rates applicable to the period in which
the deferred tax assets or liabilities are expected to be realized
or settled. As changes in tax laws or rates are enacted, deferred tax
assets and liabilities are adjusted through the provision for income
taxes.
Stock-Based Compensation. Statement of Financial Accounting
Standards No. 123, "Accounting for Stock-Based Compensation"
("Statement 123") establishes a "fair value" based method of
accounting for stock-based compensation plans and encourages all
entities to adopt that method of accounting for all of their employee
stock compensation plans. However, it also allows an entity to
continue to measure compensation cost for those plans using the
intrinsic value based method of accounting prescribed by APB
Opinion No. 25, "Accounting for Stock Issued to Employees" ("Opinion
25"). The Company has elected to follow Opinion 25 and related
interpretations in accounting for its employee stock options.
Statement 123 requires the disclosure of proforma net earnings and
earnings per share determined as if the Company accounted for its
employee stock options under the fair value method of that
Statement.
Earnings (Loss) Per Share. Earnings (loss) per share ("EPS") of
common stock has been computed on the basis of the weighted-
average number of shares of common stock outstanding. For purposes
of calculating diluted EPS, because there is no active trading market
for the Company's common stock, the average book value per share
was used. For 1996 and 1995, outstanding stock options were not
dilutive due to the net loss incurred by the Company. The weighted-
average number of shares outstanding for 1996 and 1995 was
1,219,092 shares and the net loss used in the computation of basic
EPS was $634,000 in 1996 which takes into effect the dividend
declared on the preferred stock. There was no outstanding preferred
stock in 1995. All per share amounts reflect the three-for-two
stock split declared in February 1998 ($ in thousands, except per
share amounts).
<TABLE>
<CAPTION>
For the Year Ended December 31, 1997
Weighted- Per
Average Share
Earnings Shares Amount
<S> <C> <C> <C>
Basic EPS:
Net earnings $914
Less preferred stock dividends (81)
Net earnings available to common stockholders 833 1,224,441 $.68
Effect of dilutive securities-
Incremental shares from assumed exercise of options 435
Incremental shares from assumed conversion of
preferred stock 121,761
Diluted EPS:
Net earnings available to common stockholders
and assumed conversions $833 1,346,637 $.62
</TABLE>
Off-Balance-Sheet Financial Instruments. In the ordinary course of
business the Company has entered into off-balance-sheet financial
instruments consisting of commitment to extend credit, unused
lines of credit and stand-by-letters of credit. Such financial
instruments are recorded in the consolidated financial statements
when they are funded or related fees are incurred or received.
Fair Values of Financial Instruments. The following methods and
assumptions were used by the Company in estimating fair values of
financial instruments:
Cash and Cash Equivalents. The carrying amounts of cash and cash
equivalents approximate their fair value.
Securities Available for Sale and Held to Maturity. Fair values for
securities are based on quoted market prices, where available. If
quoted market prices are not available, fair values are based on
quoted market prices of comparable instruments.
Restricted Securities. Book value for these securities approximates
their fair value.
Loans. For variable-rate loans that reprice frequently and have no
significant change in credit risk, fair values are based on carrying
values. Fair values for fixed-rate mortgage (e.g. one- to four-family
residential), commercial real estate and commercial loans are
estimated using discounted cash flow analyses, using interest rates
currently being offered for loans with similar terms to borrowers
of similar credit quality.
Accrued Interest Receivable. Book value approximates fair value.
Deposit Liabilities. The fair values disclosed for demand, NOW,
money-market and savings deposits are, by definition, equal to the
amount payable on demand at the reporting date (that is, their
carrying amounts). Fair values for fixed-rate certificates of deposit
are estimated using a discounted cash flow calculation that applies
interest rates currently being offered on certificates to a schedule
of aggregated expected monthly maturities on time deposits.
Off-Balance-Sheet Instruments. Fair values for off-balance-sheet
lending commitments are based on fees currently charged to enter
into similar agreements, taking into account the remaining terms of
the agreements and the counterparties' credit standing.
Advertising. The Company expenses all advertising as incurred.
Future Accounting Requirements. Financial Accounting Standards
130 - Reporting Comprehensive Income establishes standards for
reporting comprehensive income. The Standard defines
comprehensive income as the change in equity of an enterprise
except those resulting from stockholder transactions. All
components of comprehensive income are required to be reported in
a new financial statement that is displayed with equal prominence
as existing financial statements. The Company will be required to
adopt this Standard effective January 1, 1998. As the Statement
addresses reporting and presentation issues only, there will be no
impact on operating results from the adoption of this Standard.
Financial Accounting Standards 131 - Disclosures about Segments of
an Enterprise and Related Information establishes standards for
related disclosures about products and services, geographic areas,
and major customers. The Company will be required to adopt this
Standard effective January 1, 1998. As the Standard addresses
reporting and disclosure issues only, there will be no impact on
operating results from adoption of this Standard.
Reclassification. Certain amounts in the 1996 and 1995 financial
statements have been reclassified to conform with the 1997
presentation.
(2) Securities Available for Sale and Held to Maturity
Securities have been classified according to management's intent.
The carrying amount of securities and their approximate fair values
are summarized as follows (in thousands):
<TABLE>
<CAPTION>
Gross Gross
Amortized Unrealized Unrealized Fair
Cost Gains Losses Value
<S> <C> <C> <C> <C>
Available for Sale:
At December 31, 1997:
U.S. Treasury securities $ 9,003 36 - 9,039
Mortgage-backed securities 8,826 45 (130) 8,741
Mutual funds 5,137 - (172) 4,965
Total $22,966 81 (302) 22,745
At December 31, 1996:
U.S. Treasury securities 11,496 19 (18) 11,497
U.S. Government agency securities 1,000 - (17) 983
Mortgage-backed securities 15,777 113 (301) 15,589
Mutual funds 5,039 - (188) 4,851
Total $33,312 132 (524) 32,920
Held to Maturity:
At December 31, 1997:
U.S. Government agency securities 1,253 11 - 1,264
Mortgage-backed securities 6,436 7 (304) 6,139
Other 75 - - 75
Total $ 7,764 18 (304) 7,478
At December 31, 1996:
U.S. Government agency securities 1,328 43 - 1,371
Mortgage-backed securities 6,801 21 (389) 6,433
Other 75 - - 75
Total $ 8,204 64 (389) 7,879
</TABLE>
During the quarter ended December 31, 1995, the Company adopted
the provisions of SFAS No. 115 Questions and Answers Guide ("SFAS
No. 115 Q&A") which allowed a one-time reclassification of
securities between held to maturity and available for sale between
November 15, 1995 and December 31, 1995. The Company
reclassified U.S. Government agency securities and mortgage-backed
securities with market values of approximately $248,000 and
$15,975,000, respectively, and amortized cost of $241,000 and
$16,081,000, respectively.
At December 31, 1997 and 1996, approximately $711,000 and
$245,000 respectively, of securities were pledged for the Company's
treasury tax and loan account, approximately $3,011,000 and
$4,001,000 were pledged as collateral for investment repurchase
agreements, approximately $277,000 and $6,276,000 were pledged
as collateral for Federal Home Loan Bank advances and
approximately $7,270,000 and $2,209,000 were pledged for public
deposits.
The following summarizes sales of securities available for sale (in
thousands):
<TABLE>
<CAPTION>
Year Ended December 31,
1997 1996 1995
<S> <C> <C> <C>
Proceeds from sale of securities available for sale $13,578 20,157 8,852
Gross gains from sale of securities available for sale 95 92 4
Gross losses from sale of securities available for sale (66) (1) (3)
Net gains $ 29 91 1
</TABLE>
The scheduled maturities of securities at December 31, 1997 are as
follows (in thousands):
<TABLE>
<CAPTION>
Available-for- Held-to-
Sale Securities Maturity Securities
Amortized Fair Amortized Fair
Cost Value Cost Value
<S> <C> <C> <C> <C>
Due from one to five years $ 9,003 9,039 804 808
Due from five to ten years - - 524 531
Mortgage-backed securities 8,826 8,741 6,436 6,139
Mutual funds 5,137 4,965 - -
$22,966 22,745 7,764 7,478
</TABLE>
(3) Loans Receivable
The components of loans in the consolidated balance sheets are
summarized as follows (in thousands):
<TABLE>
<CAPTION>
At December 31,
1997 1996
<S> <C> <C>
Residential real estate $ 61,827 60,716
Commercial real estate 17,628 10,894
Commercial loans 19,832 16,711
Consumer loans 7,372 3,604
106,659 91,925
Deferred loan fees (158) (175)
Allowance for loan losses (848) (777)
$105,653 90,973
</TABLE>
An analysis of the change in the allowance for loan losses follows
(in thousands):
<TABLE>
<CAPTION>
Year Ended December 31,
1997 1996 1995
<S> <C> <C> <C>
Balance at beginning of year $ 777 840 528
Loans charged-off (58) (248) (29)
Recoveries 49 - 5
Net loans charged-off (9) (248) (24)
Provision for loan losses 80 185 336
Balance at end of year $ 848 777 840
</TABLE>
The following summarizes the collateral dependent amounts of
impaired loans (in thousands):
<TABLE>
<CAPTION>
At December 31,
1997 1996
<S> <C> <C>
Loans identified as impaired:
Gross loans with no related allowance for losses $ - -
Gross loans with related allowance for losses recorded 1,428 222
Less: Allowances on these loans (163) (111)
Net investment in impaired loans $ 1,265 111
</TABLE>
The average net investment in impaired loans and interest income
recognized and received on impaired loans is as follows (in
thousands):
<TABLE>
<CAPTION>
Year Ended December 31,
1997 1996 1995
<S> <C> <C> <C>
Average investment in impaired loans $ 392 111 238
Interest income recognized on impaired loans $ - 32 -
Interest income received on impaired loans $ - 32 -
</TABLE>
Mortgage loans serviced for others are not included in the
accompanying consolidated balance sheets. The unpaid principal
balances of these loans are summarized as follows (in thousands):
<TABLE>
<CAPTION>
At December 31,
1997 1996
<S> <C> <C>
Mortgage loan portfolios serviced for:
FHLMC $ - 1,136
FNMA - 4,937
Other investors 11,969 8,732
$11,969 14,805
</TABLE>
Custodial escrow balances maintained in connection with the
foregoing loan servicing was approximately $28,200 and $6,400 at
December 31, 1997 and 1996, respectively.
(4) Investment in Limited Partnership
In late 1994 and early 1995, the Company invested a total of
$5,000,000 to acquire a 12.5% limited partner interest in Tranche
VII of Dovenmuehle Mortgage Company, L.P., a partnership whose
primary asset is mortgage servicing rights. The servicing rights in
Tranche VII, were acquired during the latter months of 1994 and
early 1995, were being amortized in proportion to and over the
period of estimated net servicing income and were subjected to an
independent valuation each calendar quarter. During 1995, the
Company recorded $507,000 as its share of partnership earnings and
received no cash distributions from the partnership. In 1996, the
Company recorded $365,000 as its share of partnership earnings and
sold its interest in the partnership for book value.
(5) Premises and Equipment
Premises and equipment is summarized as follows (in thousands):
<TABLE>
<CAPTION>
At December 31,
1997 1996
<S> <C> <C>
Leasehold improvements $ 1,000 904
Furniture, fixtures and equipment 3,108 2,873
Total, at cost 4,108 3,777
Less accumulated depreciation and amortization (2,883) (2,502)
Net book value $ 1,225 1,275
</TABLE>
The Company leases its banking offices. Rental expense was
approximately $420,000, $314,000 and $406,000 for the years ended
December 31, 1997, 1996 and 1995, respectively. Approximate
future minimum annual rental payments under these noncancellable
leases are as follows (in thousands):
<TABLE>
<CAPTION>
Year Ending
December 31, Amount
<S> <C>
1998 $ 554
1999 563
2000 514
2001 512
2002 371
Thereafter 368
Total $ 2,882
</TABLE>
(6) Deposits
The aggregate amount of jumbo certificates of deposit with a
minimum denomination of $100,000, was approximately $11.1
million and $9.5 million at December 31, 1997 and 1996,
respectively.
At December 31, 1997, the scheduled maturities of certificates of
deposit are as follows (in thousands):
<TABLE>
<CAPTION>
Year Ending
December 31, Amount
<S> <C>
1998 $ 32,999
1999 19,000
2000 5,136
2001 402
2002 and thereafter 7,162
$ 64,699
</TABLE>
(7) Other Borrowings
During 1997 and 1996, the Company entered into investment
repurchase agreements. These agreements require the Company to
pledge securities as collateral for the balance in the accounts. At
December 31, 1997 and 1996 the balances totaled $1,791,000 and
$774,000, respectively and the Company pledged securities as
collateral for these agreements with a book value of approximately
$3,011,000 and $4,001,000, respectively.
During 1996 and 1995, the Company entered into sales of securities
under agreements to repurchase ("reverse repurchase agreements").
Fixed-coupon reverse repurchase agreements are treated as
financings. The securities underlying the reverse repurchase
agreements and the obligations to repurchase securities sold are
reflected as assets and liabilities, respectively, in the consolidated
balance sheets. During the years ended December 31, 1996 and 1995
all of the Company's transactions were fixed-coupon reverse
repurchase agreements. At December 31, 1997 and 1996 there were
no securities sold under reverse repurchase agreements.
<TABLE>
<CAPTION>
Year Ended December 31,
1996 1995
(Dollars in thousands)
<S> <C> <C>
Maximum borrowing at any month-end
within the year $ 1,385 19,608
Average borrowing during the year 803 7,643
Average interest cost during the year 5.17% 6.27%
Average interest cost at end of the year 5.08% 6.23%
</TABLE>
(8) Advances from Federal Home Loan Bank
Maturities and interest rates of advances from the Federal Home
Loan Bank ("FHLB") were as follows (dollars in thousands):
<TABLE>
<CAPTION>
Year Ending Interest At December 31,
December 31, Rate 1997 1996
<S> <C> <C> <C>
1997 5.44% $ - 5,000
1997 5.37% - 5,000
1997 6.95% - 1,672
1997 5.97% - 5,000
1997 6.00% - 1,300
1997 6.89% - 5,000
1998 6.50% 4,400 -
Total $ 4,400 22,972
</TABLE>
At December 31, 1997, pursuant to the collateral agreement with
the FHLB, advances are collateralized by the Company's FHLB stock
and a blanket lien on the Company's qualifying first mortgage, one-
to four-family residential loans.
(9) Commitments and Contingencies
In the ordinary course of business, the Company has various
outstanding commitments and contingent liabilities that are not
reflected in the accompanying consolidated financial statements.
(10) Financial Instruments
The Company is a party to financial instruments with off-balance-
sheet risk in the normal course of business to meet the financing
needs of its customers. These financial instruments are
commitments to extend credit and standby letters of credit and may
involve, to varying degrees, elements of credit and interest-rate
risk in excess of the amount recognized in the consolidated balance
sheet. The contract amounts of these instruments reflect the extent
of involvement the Company has in these financial instruments.
The Company's exposure to credit loss in the event of
nonperformance by the other party to the financial instrument for
commitments to extend credit and standby letters of credit is
represented by the contractual amount of those instruments. The
Company uses the same credit policies in making commitments as it
does for on-balance-sheet instruments.
Commitments to extend credit are agreements to lend to a customer
as long as there is no violation of any condition established in the
contract. Commitments generally have fixed expiration dates or
other termination clauses and may require payment of a fee. Since
some of the commitments are expected to expire without being
drawn upon, the total commitment amounts do not necessarily
represent future cash requirements. The Company evaluates each
customer's credit worthiness on a case-by-case basis. The amount
of collateral obtained if deemed necessary by the Company upon
extension of credit is based on management's credit evaluation of
the counterparty.
Standby letters of credit are conditional commitments issued by the
Company to guarantee the performance of a customer to a third
party. The credit risk involved in issuing letters of credit is
essentially the same as that involved in extending loans to
customers.
The estimated fair values of the Company's financial instruments
were as follows (in thousands):
<TABLE>
<CAPTION>
At December 31, 1997 At December 31, 1996
Carrying Fair Carrying Fair
Amount Value Amount Value
<S> <C> <C> <C> <C>
Financial assets:
Cash and cash equivalents $ 2,575 2,575 6,663 6,663
Securities available for sale 22,745 22,745 32,920 32,920
Securities held to maturity 7,764 7,478 8,204 7,879
Loans receivable, net 105,653 107,076 90,973 91,084
Loans held for sale 4,443 4,443 4,396 4,396
Accrued interest receivable 1,027 1,027 1,181 1,181
Restricted securities 1,570 1,570 1,666 1,666
Financial liabilities:
Deposit liabilities 124,995 126,537 112,498 112,474
Other borrowings 1,791 1,791 774 774
Advances from Federal Home Loan Bank 4,400 4,400 22,972 22,972
</TABLE>
A summary of the notional amounts of the Company's financial
instruments, which approximate fair value, with off balance sheet
risk at December 31, 1997 is as follows (in thousands):
<TABLE>
<CAPTION>
<S> <C>
Unfunded loan commitments at fixed rates $1,930
Unfunded loan commitments at variable rates $ 118
Available lines of credit $8,237
Standby letters of credit $ 600
</TABLE>
(11) Credit Risk
The Company grants a majority of its loans to borrowers primarily
in Palm Beach, Broward and Dade Counties, Florida. Although the
Company has a diversified loan portfolio, a significant portion of
its borrowers' ability to honor their contracts is dependent upon the
economy of these counties in Florida. The contractual amounts of
credit-related financial instruments such as commitments to extend
credit and standby letters of credit represent the amounts of
potential accounting loss should the contract be fully drawn upon,
the customer default and the value of any existing collateral become
worthless.
(12) Income Taxes
The income taxes (benefit) consisted of the following (in thousands):
<TABLE>
<CAPTION>
Year Ended December 31, 1997: Current Deferred Total
<S> <C> <C> <C>
Federal $199 277 476
State 17 57 74
Total $216 334 550
Year Ended December 31, 1996:
Federal - (295) (295)
State - (60) (60)
Total $ - (355) (355)
Year Ended December 31, 1995:
Federal - (321) (321)
State - (55) (55)
Total $ - (376) (376)
</TABLE>
The reasons for the differences between the statutory Federal
income tax rate and the effective tax rate are summarized as
follows:
<TABLE>
<CAPTION>
Year Ended December 31,
1997 1996 1995
<S> <C> <C> <C>
Tax provision at statutory rate 34% (34)% (34)%
Increase (decrease) in taxes resulting from:
State taxes 3 (4) (4)
Other 1 1 1
Income taxes (benefit) 38% (37)% (37)%
</TABLE>
The tax effects of temporary differences that give rise to
significant portions of the deferred tax assets and liabilities relate
to the following (in thousands):
<TABLE>
<CAPTION>
December 31,
1997 1996
<S> <C> <C>
Deferred tax assets:
Allowance for loan losses $241 207
Depreciation 145 176
Net operating loss carryforwards - 461
Purchase accounting adjustments 43 180
Other 174 146
Total gross deferred tax assets 603 1,170
Deferred tax liabilities:
FHLB stock 27 104
Deferred loan fees 349 418
Other 3 27
Total gross deferred
tax liabilities 379 549
Net deferred tax asset $224 621
</TABLE>
(13) Related Parties
The Company has entered into transactions with officers, directors
and principal stockholders in the ordinary course of business. Loans
to such related parties amounted to approximately $546,000 and
$1,138,000 at December 31, 1997 and 1996, respectively and
deposits from such related parties were approximately $3,043,000
and $3,150,000, respectively.
(14) Profit Sharing Plan
The Company sponsors a 401(k) profit sharing plan (the "Plan"). The
Plan is available to all employees electing to participate after
meeting certain length-of-service requirements. The Company's
contributions to the Plan are discretionary and are determined
annually. Expenses relating to the Company's contributions to the
Plan included in the accompanying consolidated financial statements
were $1,000, $4,400 and $15,800 for 1997, 1996 and 1995,
respectively.
(15) Deferred Compensation Plans
The Company has deferred compensation plans for certain directors
that allow for a portion of the participant's earned compensation
to be deferred and paid upon retirement, disability, death or
termination of service at which time accrued benefits are payable
in a lump-sum payment or in monthly installments for a period of 10
years. At December 31, 1997 and 1996, approximately $118,000 and
$177,000, respectively was deferred and included in other
liabilities on the consolidated balance sheets for the Company's
obligations under these agreements. During 1997, certain directors
received lump-sum payments under these plans.
(16) Stock Options
Certain key employees and directors of the Company have options to
purchase shares of the Company's common stock under its stock
option plan. Under the plan, the total number of shares which may
be issued is 300,000. At December 31, 1997, 65,919 shares remain
available for grant. All per share amounts reflect the three-for-two
stock split declared in February 1998. A summary of stock option
transactions follows ($ in thousands, except per share amounts):
<TABLE>
<CAPTION>
Range
of Per Weighted-
Share Average Aggregate
Number of Option Per Share Option
Shares Price Price Price
<S> <C> <C> <C> <C>
Outstanding at December 31, 1994 and 1995 60,000 $ 6.67-10.52 8.50 510
Options granted 50,451 9.67-10.45 10.14 512
Expired options (2,100) 8.67 8.67 (18)
Outstanding at December 31, 1996 108,351 6.67-10.45 9.27 1,004
Options granted 135,963 9.55-10.03 9.61 1,307
Options exercised (28,500) 6.67 6.67 (190)
Options forfeited (10,233) 6.67-10.52 9.69 (99)
Outstanding at December 31, 1997 205,581 $ 9.55-10.52 9.84 $ 2,022
</TABLE>
The weighted-average remaining contractual life of the outstanding
stock options at December 31, 1997, 1996 and 1995 was forty-nine
months, thirty-five months and thirty-two months, respectively.
These options are exercisable as follows:
<TABLE>
<CAPTION>
Number Weighted-Average
Year Ending of Shares Exercise Price
<S> <C> <C>
1998 127,341 $ 10.09
1999 23,430 9.55
2000 23,430 9.55
2001 19,230 9.55
2002 9,450 9.55
2003 2,700 9.55
205,581 $ 9.84
</TABLE>
(16) Stock Options, Continued
On January 1, 1996, the Company adopted Statement of Financial
Accounting Standards No. 123, "Accounting for Stock-Based
Compensation," which establishes financial accounting and reporting
standards for stock-based employee compensation plans. As
permitted by this Statement, the Company has elected to continue
utilizing the intrinsic value method of accounting defined in APB
Opinion No. 25. Due to the exercise price of the options
approximating the market value of the common stock at the date of
grant, no compensation expense has been recognized in the
consolidated statements of operations.
The Statement requires pro forma fair value disclosures if the
intrinsic value method is being utilized. In order to calculate the
fair value of the options, it was assumed that the risk-free interest
rate was 6.0%, there would be no dividends paid by the Company over
the exercise period, the expected life of the options would be the
entire exercise period and stock volatility would be zero due to the
lack of an active market for the stock. For purposes of pro forma
disclosures, the estimated fair value is included in expense in the
period vesting occurs. The following information pertains to the
options granted to purchase common stock in 1997 and 1996 (in
thousands, except per share amounts):
<TABLE>
<CAPTION>
Year Ended December 31,
1997 1996
<S> <C> <C>
Weighted-average grant-date fair value of options
issued during the year $147 133
Proforma net earnings (loss) $767 (732)
Proforma basic earnings (loss) per share $.63 (.60)
</TABLE>
(17) Preferred Stock
The Company has 54,116 outstanding shares of convertible,
redeemable, cumulative preferred stock Series A, $.01 par value
("preferred stock"). The preferred stock can be redeemed by the
Company at $20 per share. The preferred stock has a 8.5% cumulative
dividend rate payable based on the $20 redemption value. Each share
of preferred stock is convertible at the option of the stockholder
into 2.25 shares of common stock at any time. In 1997, the Company
paid dividends on preferred stock in a combination of both preferred
stock and cash, based on the preference of the individual
stockholders. The total preferred stock issued was 3,218 shares and
the total cash was approximately $16,000. A preferred stock
dividend was declared in 1996 of approximately $35,000 which was
initially recorded as a cash dividend. Subsequently, it was decided
to pay the dividend in a combination of preferred stock and cash, based
on the preference of the individual stockholder. The total preferred
stock issued was 1,398 shares and the total cash was $8,000.
(18) Regulatory Matters
The Bank is subject to restrictions on the amount of dividends that
it may declare without prior regulatory approval.
The Bank is subject to various regulatory capital requirements
administered by the regulatory agencies. Failure to meet minimum
capital requirements can initiate certain mandatory and possibly
additional discretionary actions by regulators that, if undertaken,
could have a direct material effect on the Company's financial
statements. Under capital adequacy guidelines and the regulatory
framework for prompt corrective action, the Bank must meet
specific capital guidelines that involve quantitative measures of
the Bank's assets, liabilities, and certain off-balance-sheet items as
calculated under regulatory accounting practices. The Bank's capital
amounts and classification are also subject to qualitative
judgements by the regulators about components, risk weightings,
and other factors.
Quantitative measures established by regulation to ensure capital
adequacy require the Bank to maintain minimum amounts and ratios
(set forth in the tables below). Management believes, as of December
31, 1997, that the Bank meets all capital adequacy requirements to
which they are subject.
As of December 31, 1997, the most recent notification from the
regulatory authorities categorized the Bank as well capitalized
under the regulatory framework for prompt corrective action. To be
categorized as well capitalized the Bank must maintain minimum
total risk-based, Tier I risk-based, and Tier I leverage ratios as
set forth in the table. There are no conditions or events since that
notification that management believes have changed the Bank's
category. The Bank's actual capital amounts and ratios are also
presented in the table (dollars in thousands).
<TABLE>
<CAPTION>
For Well
For Capital Capitalized
Actual Adequacy Purposes: Purposes:
Amount % Amount % Amount %
<S> <C> <C> <C> <C> <C> <C>
As of December 31, 1997:
Total capital (to Risk
Weighted Assets) $ 14,529 16.00% $ 7,264 8.00% $ 9,080 10.00%
Tier I Capital (to Risk
Weighted Assets) 13,681 15.06 3,632 4.00 5,448 6.00
Tier I Capital
(to Average Assets) 13,681 8.95 6,117 4.00 7,646 5.00
As of December 31, 1996:
Total capital (to Risk
Weighted Assets) $ 4,216 15.88% $ 2,134 8.00% $ 2,667 10.00%
Tier I Capital (to Risk
Weighted Assets) 3,913 14.67 1,067 4.00 1,600 6.00
Tier I Capital
(to Average Assets) 3,913 8.69 1,801 4.00 2,252 5.00
</TABLE>
As of December 31, 1996, the most recent notification from the
Office of Thrift Supervision categorized Pointe Federal as well
capitalized under the regulatory framework for prompt corrective
action. To be categorized as well capitalized Pointe Federal had to
maintain minimum regulatory capital as set forth in the table. There
were no conditions or events since that notification that
management believed changed Pointe Federal's category prior to
being merged with the Bank. Pointe Federal's actual capital amounts
and ratios are also presented in the table (dollars in thousands).
<TABLE>
<CAPTION>
To Be Well
Minimum Capitalized
For Capital For Prompt
Adequacy Corrective Action
Actual Purposes Provisions
% Amount % Amount % Amount
<S> <C> <C> <C> <C> <C> <C>
At December 31, 1996:
Stockholders' equity,
and ratio to total
assets 8.25% $ 8,744 - - - -
Intangible assets - - - - -
Tangible capital,
and ratio to adjusted
total assets 8.25% $ 8,744 1.5% $ 1,589 - -
Tier 1 (core) capital, and
ratio to adjusted total
assets 8.25% $ 8,744 4.0% $ 3,179 5.0% $ 5,299
Tier 1 capital, and ratio
to risk-weighted assets 17.38% 8,744 - - 6.0% $ 3,019
Allowance for loan losses - 474 - - - -
Tier 2 capital - 474 - - - -
Total risk-based capital,
and ratio to risk-
weighted assets 18.32% $ 9,218 8.0% $ 4,025 10.0% $ 5,031
Total assets $ 105,977
Adjusted total assets $ 105,977
Risk-weighted assets $ 50,311
</TABLE>
(19) SAIF Recapitalization Assessment
On September 30, 1996, a law was enacted which imposed a one-
time assessment on all SAIF insured deposits as of March 31, 1995.
The effect on the Company was a pre-tax charge in 1996 of
$926,000.
(20) Stockholders' Equity
The Board of Directors voted to split the common shares on a three-
for-two basis effective in February 1998. All per share amounts
reflect this split.
(21) Holding Company Financial Information
The Holding Company's financial information is as follows (in
thousands):
<TABLE>
<CAPTION>
Condensed Balance Sheets
At December 31,
1997 1996
<S> <C> <C>
Assets
Cash and cash equivalents $ 127 110
Investment in subsidiaries 13,722 12,419
Other assets 94 148
Total assets $ 13,943 12,677
Liabilities and Stockholders' Equity
Other liabilities 98 256
Stockholders' equity 13,845 12,421
Total liabilities and stockholders' equity $ 13,943 12,677
</TABLE>
Condensed Statements of Operations
<TABLE>
<CAPTION>
For the Year Ended December 31,
1997 1996 1995
<S> <C> <C> <C>
Revenues $ 665 2,101 1,353
Expenses 752 2,182 1,653
Loss before earnings (loss) of subsidiaries (87) (81) (300)
Earnings (loss) of subsidiaries 1,001 (518) (327)
Net earnings (loss) $ 914 (599) (627)
Cash flows from operating activities:
Net earnings (loss) $ 914 (599) (627)
Adjustments to reconcile net earnings (loss) to net
cash provided by (used in) operating activities:
Decrease (increase) in other assets 54 7 (151)
(Decrease) increase in due to subsidiaries - (295) 271
(Decrease) increase in other liabilities (143) 14 207
Net cash provided by (used in)
operating activities 825 (873) (300)
Cash flows from investing activities:
Net (increase) decrease in investment in subsidiaries (1,187) 217 79
Dividends from subsidiary - - 250
Net cash (used in) provided by
investing activities (1,187) 217 329
Cash flows from financing activities:
Proceeds from issuance of preferred stock 201 737 -
Proceeds from issuance of common stock 190 - -
Cash dividends paid in preferred stock (12) - -
Net cash provided by investing activities 379 737 -
Net increase in cash and cash equivalents 17 81 29
Cash and cash equivalents at beginning of the year 110 29 -
Cash and cash equivalents at end of year $ 127 110 29
Noncash transactions:
Change in investment in subsidiaries due to unrealized
appreciation (depreciation) on securities available
for sale, net of income tax $ 108 (196) 625
Dividends payable on preferred stock $ 4 35 -
Stock dividends paid on preferred stock $ 65 - -
</TABLE>
No dealer, salesperson or any other person has been authorized to
give any information or to make any representations in connection
with the offer contained herein other than those contained this
Prospectus and, if given or made, such information or
representations must not be relied upon as having been authorized
by the Company or the Underwriters. This Prospectus does not
constitute an offer to sell, or a solicitation of an offer to buy,
to any person in any jurisdiction in which such an offer or solicitation
is not authorized, or in which the person making such offer or
solicitation is not qualified to do so or to any person to whom it
is unlawful to make such offer or solicitation. Neither the delivery
of this Prospectus nor any sale made hereunder shall, under any
circumstances, create any implication that there has been no change
in the affairs of the Company since the date hereof or that the
information contained herein is correct as of any time subsequent
to the date hereof.
TABLE OF CONTENTS
<TABLE>
<CAPTION>
<S> <C>
Prospectus Summary x
Summary Selected Consolidated
Financial Data x
Risk Factors x
Use of Proceeds x
Dividend Policy x
Dilution x
Capitalization x
Selected Consolidated
Financial Data x
Management's Discussion and Analysis x
of Financial Condition and Results
of Operations x
Regulation and Supervision x
Management x
Security Ownership of Certain
Beneficial Owners and Management x
Certain Relationships and Related
Transactions x
Description of Capital Stock x
Shares Eligible for Future Sale x
Underwriting x
Legal Matters x
Experts x
Available Information x
Index to Consolidated Financial
Statements F-1
</TABLE>
Until ___________, 1998 (25 days after the date of this
Prospectus) all dealers effecting transactions in the registered
securities, whether or not participating in this distribution, may
be required to deliver a Prospectus. This is in addition to the obligation
of dealers to deliver a Prospectus when acting as Underwriters and
with respect to their unsold allotments or subscriptions.
665,000 Shares
POINTE FINANCIAL CORPORATION
Common Stock
PROSPECTUS
Keefe, Bruyette & Woods, Inc.
McGinn, Smith & Co., Inc.
, 1998
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 24: Indemnification of Directors and Officers.
Article X of the Articles of Incorporation of the Company
provides that the Company shall indemnify its officers and directors
to the fullest extent permitted by law.
Section 607.0831 of the Florida Business Corporation Act provides,
among other things, that a director is not personally liable for
monetary damages to a company or any other person for any
statement, vote, decision, or failure to act, by the director,
regarding corporate management or policy, unless the director
breached or failed to perform his or her duties as a director and
such breach or failure constitutes (a) a violation of criminal law, unless
the director had reasonable cause to believe his or her conduct was
lawful or had no reasonable cause to believe his or her conduct was
unlawful; (b) a transaction from which the director derived an
improper personal benefit; (c) a circumstance under which the
liability provisions of Section 607.0834 of the Florida Business
Corporation Act (relating to the liability of the directors for
improper distributions) are applicable; (d) willful misconduct or
a conscious disregard for the best interest of the company in the case
of a proceeding by or in the right of the company to procure a
judgement in its favor or by or in the right of a shareholder; or
(e) recklessness or an act or omission in bad faith or with malicious
purpose or with wanton and willful disregard for human rights,
safety or property, in a proceeding by or in the right of someone
other than such company or a shareholder.
Section 607.0850 of the Florida Business Corporation Act
authorizes, among other things, the Company to indemnify any person
who was or is a party to any proceeding (other than an action by or
in the right of the Company) by reason of the fact that he is or was
a director, officer, employee or agent of the Company (or is or was
serving at the request of the Company in such a position for any
entity) against liability incurred in connection with such proceeding,
if he or she acted in good faith and in a manner reasonably believed
to be in the best interests of the Company and, with respect to
criminal proceedings, had no reasonable cause to believe his or her
conduct was unlawful.
Florida law requires that a director, officer or employee be
indemnified for expenses (including attorneys' fees) to the extent
that he or she has been successful on the merits or otherwise in the
defense of any proceeding. Florida law also allows expenses of
defending a proceeding to be advanced by a company before the final
disposition of the proceedings, provided that the officer, director
of employee undertakes to repay such advance if it is ultimately
determined that indemnification is not permitted.
Florida law states that the indemnification and advancement of
expenses provided pursuant to Section 607.0850 is not exclusive and
that indemnification may be provided by a company pursuant to other
means, including agreements or bylaw provisions. Florida law
prohibits indemnification or advancement of expenses, however, if
a judgment or other final adjudication establishes that the actions
of a director, officer or employee constitute (i) a violation of criminal
law, unless he or she had reasonable cause to believe his or her
conduct was lawful or had no reasonable cause to believe his or her
conduct was unlawful; (ii) a transaction from which such person
derived an improper personal benefit; (iii) willful misconduct or
conscious disregard for the best interests of the company in the
case of a derivative action or a proceeding by or in the right of
a shareholder; or (iv) in the case of a director, a circumstance under
which the liability provisions of Section 607.0834 of the Florida
Business Corporation Act (relating to the liability of directors for
improper distributions) are applicable.
The Company has purchased director and officer liability insurance
that insures directors and officers against liabilities in connection
with the performance of their duties.
The Purchase Agreement filed herewith as Exhibit 1.1 contains
provisions by which each underwriter agrees to indemnify the
Registrant, each person, if any, who controls the Registrant within
the meaning of Section 15 of the Securities Act of 1933 (the "Act"),
each Director of the Registrant, and each officer of the Registrant
who signs this Registration Statement, with respect to information
furnished in writing by and concerning such underwriter specifically
for use in the Registration Statement.
Item 25: Other Expenses of Issuance and Distribution.
The following table sets forth all expenses expected to be incurred
in connection with the issuance and distribution of the securities
being registered, other than the underwriting discounts and
commissions, if any.
<TABLE>
<CAPTION>
<S> <C>
SEC Registration Fees $ 3,610
NASD Filing Fee $ 1,724
NASDAQ Listing Fee $ 48,750
<F1> Transfer Agent's Fees and Expenses $ 1,500
<F1> Blue Sky Registration Fees and Expenses $ 10,000
<F1> Legal Fees and Expenses $ 75,000
<F1> Accounting Fees $ 35,000
<F1> Printing, Engraving and Mailing Expenses $ 30,000
<F1> Miscellaneous $ 11,936
TOTAL : $ 217,520
<FN>
<F1> Estimated.
</FN>
</TABLE>
Item 26: Recent Sales of Unregistered Securities
In a private placement which commenced in December 1995 and
concluded in March 1998, the Registrant sold 50,000 shares of
Preferred Stock, Series A (the "Preferred Stock"), at an offering
price of $ 20.00 per share. The $1,000,000 proceeds of the sale was
utilized by the Registrant for working capital.
On each of the quarterly dividend payment dates of the Preferred
Stock, holders of the Preferred Stock were permitted to elect to
receive in lieu of the specified cash dividend an equivalent value
of additional shares of Preferred Stock, valued at $20.00 per share.
In these private placements an aggregate of 3,616 additional shares of
Preferred Stock had been issued to holders of Preferred Stock as of
December 31, 1997.
The shares of such securities were exempt from the provisions of
Section 5 of the Securities Act of 1933, as amended (the "Act"),
pursuant to the provisions of Section 4(2) of the Act because of the
limited number of participants in such transactions and the
relationship of such participants to the Registrant. Sales of
securities in these offerings were made only to persons who were
"accredited investors" within the meaning of Rule 501 promulgated
under the Act. In addition, all such participants agreed to acquire
their securities for investment and not with a view to the
distribution thereof, and the certificates representing the
securities issued to each such participant contain a legend to the
effect that such securities are not registered under the Act and may
not be transferred except pursuant to a registration statement
which has become effective under the Act, or an exemption from
such registration requirement. Stop transfer instructions have been
given to the Registrant's transfer agent with respect to such
securities. The issuance of such securities was not underwritten,
and no commissions or other remuneration were paid or given,
directly or indirectly, in connection with such sales.
Item 27: Exhibits and Financial Statement Schedules.
The following exhibits are filed as part of this Registration Statement:
<TABLE>
<CAPTION>
Exhibit
Number Description of Exhibit
<S> <C>
1.1 <F1> Form of Purchase Agreement
2.1 Plan of Merger and Merge Agreement dated February 14, 1997
by and between Pointe Federal Savings Bank and Pointe Bank
3.1 Articles of Incorporation of the Registrant
3.2 By-Laws of the Registrant
4.1 <F1> Specimen Common Stock Certificate
5.1 <F1> Opinion of Stuzin and Camner, P.A.
10.1 1994 Non-Statutory Stock Option Plan
10.2 Deferred Compensation Plan
10.3 Office Lease Agreement dated October 8, 1986 by and between
Centrum Pembroke, Inc. and Flamingo Bank.
10.4 Lease dated as of July 15, 1992 between Konrad Ulmer
and Pointe Savings Bank
10.5 Lease Agreement dated January 23, 1995 by and between
Hollywood Associates VI and Pointe Bank
10.6 Credit Agreement dated August 18, 1997 between
Independent Bankers' Bank of Florida and Pointe Bank
10.7 Credit Agreement dated October 14, 1997 between SunTrust
Bank/Miami, N.A. and Pointe Bank
10.8 Agreement for Advances and Security Agreement with Blanket
Floating Lien dated November 24, 1997 between Pointe Bank and
the Federal Home Loan Bank of Atlanta
10.9 Equipment Sales and Software License Agreements between
Information Technology, Inc. and Pointe Financial Corporation
10.10 Master Equipment Lease Agreement dated May 7, 1997 between
Leasetec Corporation and Pointe Financial Corporation
21.1 Subsidiaries of the Registrant
23.1 <F1> Consent of Stuzin and Camner, P.A., included in the Opinion Letter
23.2 Consent of Hacker, Johnson, Cohen & Grieb PA
24 Power of Attorney (included in signature page to this Registration Statement).
27 Financial Data Schedule
<FN>
<F1> To be filed by amendment.
</FN>
</TABLE>
Item 28: Undertakings.
(a) The undersigned registrant hereby undertakes to provide the
underwriters at the closing specified in the purchase agreement
certificates in such denominations and registered in such names as
required by the underwriters to permit prompt delivery to each
purchaser.
(b) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in
the opinion of the Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities
(other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted
by such director, officer or controlling person in connection with
the securities being registered, the Registrant will, unless in the
opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication
of such issue.
SIGNATURES
In accordance with the requirements of the Securities Act of 1933,
the registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements of filing on Form SB-2 and
authorized this registration statement to be signed on its behalf
by the undersigned, in the City of Boca Raton, State of Florida, on April
9, 1998.
POINTE FINANCIAL CORPORATION
By: /s/ R Carl Palmer, Jr.
R. CARL PALMER, Jr.
President and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints R. Carl Palmer, Jr.
and Bradley R. Meredith, and each of them, his true and lawful
attorney-in-fact and agent with full power of substitution, for him
and in his name, place and stead, in any and all capacities, to sign
any or all amendments (including post-effective amendments) to
this Registration Statement, and to file the same, with all exhibits
thereto and all documents in connection therewith, with the
Securities and Exchange Commission, granting unto each said
attorney-in-fact and agent, full power and authority to do and
perform each and every act and thing requisite and necessary to be
done in and about the premises, as fully to all intents and purposes
as he might or could do in person, hereby ratifying and confirming
all that said attorney-in-fact and agent, or his substitute, may lawfully
door cause to be done by virtue hereof.
In accordance with the requirements of the Securities Act of 1933,
this registration statement was signed by the following persons in
the capacities indicated on this 9th day of April, 1998.
Name and Title Signature
ROBERTO KASSIN, Chairman of the Board /s/ Roberto Kassin
R. CARL PALMER, JR., President, Chief Executive
Officer and Director (Principal Executive Officer) /s/ R. Carl Palmer, Jr.
TIMOTHY McGINN, Director /s/ Timothy McGinn
MORRIS MASSRY, Director /s/ Morris Massry
BRADLEY R. MEREDITH, Senior Vice President
and Chief Financial Officer (Principal Financial
and Accounting Officer) /s/ Bradley R. Meredith
STEVEN ELIAS, Director
RICHARD MEAD, Director
EFFECTIVE DATE
4/14/97
PLAN OF MERGER AND MERGER AGREEMENT
POINTE FEDERAL SAV1NGS BANK
with and into
POINTE BANK
under the charter of
POINTE BANK
under the title of
POINTE BANK
(Resulting Financial Institution)
TO BE EFFECTIVE AS OF 12:01 A.M., APRIL 14, 1997
THIS AGREEMENT made between Pointe Federal Savings Bank (hereinafter
referred to as "Pointe Federal") a financial institution organized
under the laws of the United States, with its main office located
at Boca Raton, County of Palm Beach, in the State of Florida with
Total Capital Accounts of $8,991,676, divided into 566,400 shares
of Capital Stock, each with $0.01 par value, Surplus of $6,071,485,
and Undivided Profits or Retained Earnings of $2,914,526 as of January
31, 1997, and Pointe Bank (hereinafter referred as "Pointe Bank"),
a financial institution organized under the laws of the State of Florida,
with its main office located at One Southwest 129th Avenue, Pembroke
Pines, Florida, and one branch office located at 2690 N.E. 203rd Street,
Aventura, Florida 33180, with Total Capital Accounts of $3,953,993,
divided into 500,000 shares of Capital Stock, each with $6.00 par
value, Surplus of $695,150, and Undivided Profits of $258,843 as of
January 31, 1997, each acting pursuant to a resolution of its Board
of Directors, adopted by the vote of a majority of its directors,
pursuant to the authority given in accordance with the provisions
of Sections 655.41-655.419 and 658.40 through 658.45, Florida Statutes,
or federal law, as appropriate witnesseth as follows:
SECTION 1.
Pointe Federal shall be merged into Pointe Bank under the charter
of Point Bank.
SECTION 2.
The name of the Resulting Financial Institution shall be "Pointe
Bank." The Resulting Financial Institution will not exercise trust
powers.
SECTION 3.
The business of the Resulting Financial Institution shall be that
of a general commercial banking business. The business shall be conducted
by the Resulting Financial Institution at its main office which shall
be located at 21845 Power1ine Road, Boca Raton, Florida 33433, at
each existing and proposed branch office as follows One Southeast
129th Avenue, Pembroke Pines, Florida 33027 ("Pembroke Pines Branch")
and 2690 N.W. 203rd Street, Aventura, Florida 33180 ("Aventura Branch").
SECTION 4.
The amount of Total Capital Accounts of the Resulting Financial Institution
shall
be $12,945,669, divided into 150,000 shares of Capital Stock, each
with $10.00 par value, and at the time the merger shall become effective,
the Resulting Financial Institution shall have a Surplus of $11,445,669,
and Undivided Profits or Retained Earnings, which when combined with
the capital stock and surplus will equal to the combined total capital
accounts of all of the merging or constituent financial institutions
as stated in the preamble of this agreement, adjusted, however for
normal earnings and expenses between January 31, 1997, and the effective
time of the merger.
SECTION 5.
All assets of Pointe Federal, as they exist at the effective time
of the merger shall pass to and vest in the Resulting Financial Institution
without any conveyance or other transfer; and the Resulting Financial
Institution shall be considered the same business and corporate entity
as each constituent financial institution with all the rights, powers,
and duties of each constituent financial institution and the Resulting
Financial Institution shall be responsible for all the liabilities
of every kind and description of each of the financial institutions
existing as of the effective time of the merger.
SECTION 6.
Of the capital stock of the Resulting Financial Institution, the
presently outstanding 500,000 shares of capital stock of Pointe Bank
each of $6.00 par value, shall remain outstanding as 30,543 shares
of the Resulting Financial Institution, each of $10.00 par value,
and the holder thereof shall retain its present rights therein.
SECTION 7.
The following named persons shall serve as the Board of Directors
and executive officers of the Resulting Financial Institution until
the next annual meeting of shareholders or until such time as their
successors have been elected and have qualified.
Directorate
Stephen H. Barnett
7142 N.W. 66 Terrace
Parkland, Florida 33067
Alvin Stein
3650 North 45th Avenue.
Hollywood, Florida 33021
Roberto Kassin
21471 Highland Lakes Boulevard
North Miami Beach, Florida 33179
Stuart Reich
2240 Date Palm Road
Boca Raton, Florida 33432
Raymond Monteleone
3965 NW. 32nd Terrace
Hollywood, Florida 33021
Bruce Gottlieb
5410 North 35 Street
Hollywood, Florida 33021
Richard J. Gray
77 S. Birch Road, Unit 4B
Ft. Lauderdale, Florida 33316
Morris Massry
33 Centerview Drive
Troy, New York 12180
R. Carl Palmer, Jr.
280 Gulf Shore Drive
So. Naples, Florida 33940
Executive Officers
R. Carl Palmer, Jr., President/CEO
280 Gulf Shore Blvd. South
Naples, Florida 33940
Thomas B. Walker, Senior Vice President
Chief Financial Officer
1380 Algoma Road
Palm Beach, Florida 33480
SECTION 8.
This agreement may be terminated by the unilateral action of the Board
of Directors of any constituent financial institution prior to the
approval of the stockholders of the said constituent financial institution
or by the mutual consent of the Board of all constituent financial
institutions after the shareholders of the constituent financial institution
have ratified this agreement and approved the merger.
SECTION 9.
This agreement shall be ratified and confirmed by the affirmative
vote of the shareholders of each of the financial institutions owning
at least a majority of its capital stock outstanding, at a meeting
to be held on the call of the Directors or as otherwise provided by
the bylaws, and the merger shall become effective at the time specified
in a Certificate to be issued by the Comptroller of Florida, pursuant
to Sections 655.41-655.419 and 658.45, Florida Statutes, under the
seal of his office, approving the merger.
SECTION 10.
This agreement is also subject to the following terms and conditions:
(a) The Florida Department of Banking and Finance shall have approved
this Agreement to Merge and shall have issued all other necessary
authorizations and approvals for the merger, including a Certificate
of Merger.
(b) The appropriate federal regulatory agency(ies) shall have approved
the merger and shall have issued all other necessary authorizations
and approvals for the merger, and any statutory waiting period shall
have expired.
SECTION 11.
Effective as of the time this merger shall become effective as specified
in the "Certificate of Merger" to be issued by the Comptroller of
Florida, the Restated Articles of Incorporation of Pointe Bank as
attached hereto shall be the Articles of the Resulting Institution.
WITNESS the signatures and seals of said constituent financial institutions
this 14 day of February 1997, each hereunto set by its President or
a Vice President and attested by its Assistant/Secretary or pursuant
to a resolution of its Board of Directors, acting by a majority thereof,
and witness the signatures hereto (which may be in counterpart form)
of a majority of each of said Boards of Directors.
POINTE FEDERAL SAVINGS BANK
Attest: By: (signature)
President
(signature)
Secretary
(7 signatures)
[SEAL]
Directors of POINTE FEDERAL SAVINGS BANK
POINTE BANK
Attest: By: (signature)
President
(signature)
Assistant Secretary
(6 signatures)
[SEAL]
Directors of POINTE BANK
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
POINTE BANK
Pursuant to Section 607.1007 of the Florida Statutes,
1. The original Articles of Incorporation of the corporation were
filed by the Department of State on November 15, 1998 and amendments
were filed on February 26, 1991, June 18, 1992 and October 31, 1994.
2. The Articles of Incorporation are amended as follows:
Article III of the Articles of Incorporation is amended to increase
the par
value of the common stock to $10 per share and to reduce the authorized
shares
to 150,000 shares.
3. There are no discrepancies between the provisions of the Articles
of Incorporation as amended, and the provisions of these Amended and
Restated Articles of Incorporation other than the inclusion of the
foregoing, amendments, which were adopted pursuant to Section 607.1003,
Florida Statutes, and the omission of matters of historical interest.
The text of the Articles of Incorporation of the Corporation is restated
with the amendments described above, effective as of the date of filing
with the Department of State to read as follows:
ARTICLE I
The name of the corporation shall be POINTE BANK and its initial main
office is located at One West Flamingo Drive, Pembroke Pines, Florida
33027.
ARTICLE II
The general nature of the business to be transacted by this corporation
shall
be: That of a general commercial banking business with all the rights,
powers and privileges granted and conferred by the Florida Banking
Code, regulating the organization, powers and management of banking
corporations.
ARTICLE III
The total number of shares authorized to be issued by the corporation
shall be 150,000. Such shares shall be of a single class and shall
have a par value of $10.00 per share. The corporation shall begin
business with at least $1,500,000.00 in paid-in common capital stock.
The amount of surplus with which the corporation will begin business
will not be $700,000.00 and the amount of undivided profits, not less
than $300,000.00, all of which (capital stock, surplus and undivided
profits) shall be paid in cash.
ARTICLE IV
The term for which said corporation shall exist shall be perpetual
unless terminated pursuant to the Florida Banking Code.
ARTICLE V
The number of directors shall not be fewer than five (5).
ARTICLE VI
The Bank shall have the power to indemnify and hold harmless to the
full extent permitted by applicable Florida law, including without
limitation, the power
to advance indemnification related expenses to any person including
such person's heirs, executors or administrators, who was or is a
party to any action, suit or other proceeding, including without limitation
derivative actions, by reason of the fact that he is or was a director,
officer, employee or agent of the Bank or is or was serving at the
request of the Bank as a director, officer, employee or agent of another
corporation, partnership, joint venture trust or another enterprise
against liability, including costs and expenses related thereto, incurred
in connection with such proceeding, including any appeal thereof.
The Bank shall also have the power to purchase insurance policies
and enter into indemnification agreements covering the liability of
such persons and may provide additional indemnification to such persons
by By-Law, vote of shareholders or disinterested Directors or otherwise.
State of Florida
Department of State
I certify the attached is a true and correct copy of the Articles
of Incorporation, as amended to date, of POINTE FINANCIAL CORPORATION,
a corporation organized under the laws of the State of Florida, as
shown by the records of this office.
The document number of this corporation is P93000070976.
Given under my hand and the
Great Seal of the State of Florida
at Tallahassee, the Capitol, this the
Twenty-fourth day of February, 1998
/s/ Sandra B. Mortham
Sandra B. Mortham
Secretary of State
seal
CR2EO22 (2-95)
ARTICLES OF INCORPORATION
FOR
POINTE FINANCIAL CORPORATION
The undersigned, acting as incorporator of a corporation under the
Florida Business Corporation Act, adopts the following Articles of
Incorporation:
ARTICLE I
The name of the corporation is "POINTE FINANCIAL CORPORATION" (the
"Corporation").
ARTICLE II
The principal office and mailing address of this Corporation is 21845
Powerline Road, Boca Raton, Florida 33433.
ARTICLE III
The duration of this Corporation is to be perpetual.
ARTICLE IV
The Corporation may engage in any activity or business permitted under
the laws of the State of Florida.
ARTICLE V
The total number of shares of all classes of stock that the Corporation
is authorized to issue is 3,500,000 shares, of which 2,500,000 shall
be Common Stock, $.01 par value, and 1,000,000 shall be Preferred
Stock, $.01 par value, No holder of the Corporation's stock shall
have any preemptive right to acquire the Corporation's securities
Common Stock. The maximum number of shares of Common Stock which the
Corporation is authorized to have outstanding is 2,500,000 shares
at a par value of $.01 per share. Holders of Common Stock are entitled
to vote on all questions required by law on the basis of one vote
per share.
Preferred Stock. The maximum number of shares of Preferred Stock which
the Corporation is authorized to have outstanding is 1,000,000 shares
at a par value of $.01 per share. The Preferred Stock may be issued
from time to time in one or more series as specified in Section 607.0602,
Florida Statutes (or in such other manner as may be permitted by law),
as determined from time to time by the Board of Directors and stated
in the resolution or resolutions providing for the issuance of the
Preferred Stock adopted by the Board of Directors pursuant to authority
hereby vested in it, each series to be appropriately designated, prior
to the issuance of any shares thereof, by some distinguishing letter,
number, or title. The Board of Directors is hereby expressly granted
authority to fix the authorized number of shares of each series of
Preferred Stock, and to fix the terms of such series, including but
not limited to, the following:
(a) the rate or manner of payment, of dividends;
(b) whether shares may be redeemed and, if so, the redemption price
and the terms and conditions of redemption;
(c) the amount payable upon shares in the event of voluntary or involuntary
liquidation
(d) sinking fund provisions, if any, for the redemption or purchase
of shares;
(e) the terms and conditions, if any, on which shares may be converted;
(f) voting rights, if any; and
(g) the other special rights, if any, and the qualifications, limitations
or restrictions thereof, of the shares of such series.
The designation of each particular series of Preferred Stock and its
terms in respect of the foregoing particulars shall be fixed and determined
by the Board of Directors in any manner permitted by law and stated
in the resolution or resolutions providing for the issuance of such
shares adopted by the Board of Directors pursuant to authority hereby
vested in it, before any shares of such series are issued. The Board
of Directors may from time to time increase (but not above the total
number of authorized shares of the class) the number of shares of
any series of Preferred Stock already created by providing that any
unissued Preferred Stock shall constitute part of such series, or
may decrease (but not below the number of shares then outstanding)
the number of shares of any series of Preferred Stock already created
by providing that any unissued shares previously assigned to such
series shall no longer constitute part thereof. The Board of Directors
is hereby empowered to classify or reclassify any unissued Preferred
Stock by fixing or altering the terms thereof in respect of the above
mentioned particulars and by assigning the same to an existing or
newly created series from time to time before the issuance of such
shares
ARTICLE VI
The street address of the initial registered office is 21845 Powerline
Road, Boca Raton, Florida 33433. The name of the corporation's registered
agent at such address is Stephen H. Barnett.
ARTICLE VII
The number of directors constituting the Board of Directors shall
be fixed as provided by the bylaws, but shall not be less than one.
ARTICLE VIII
The number of directors constituting the initial Board of Directors
is five, whose names and addresses are as follows:
Stephen H. Barnett
21845 Powerline Road
Boca Raton, Florida 33433
Roberto Kassin
21845 Powerline Road
Boca Raton, Florida 33433
Raymond Monteleone
21845 Powerline Road
Boca Raton, Florida 33433
Stuart Reich
21845 Powerline Road
Boca Raton, Florida 33433
Alvin Stein
21845 Powerline Road
Boca Raton, Florida 33433
ARTICLE IX
The name and address of incorporator is Suzanne M. Legon,
1221 Brickell Avenue, 25th Floor, Miami, Florida 33131.
ARTICLE X
This corporation shall indemnify and may insure its officers and directors
to the fullest extent permitted by law currently in effect or hereinafter
enacted.
ARTICLE XI
These Articles of Incorporation may be amended in the manner authorized
by law at the time of amendment.
IN WITNESS WHEREOF, I, Suzanne M. Legon, being the Incorporator of
Pointe Financial Corporation, make and file these Articles of Incorporation
as of the 28th day of September, 1993.
By: /s/ Suzanne M. Legon
Suzanne M. Legon
ls-8416.sml
CERTIFICATE OF DESIGNATION
REGISTERED AGENT/REGISTERED OFFICE
Pursuant to the provisions at section 607.0501, Florida Statutes,
the undersigned corporation, organized under the laws of the State
of Florida, submits the following statement in designating the registered
office/registered agent, in the state of Florida.
1. The name of the corporation is: Pointe Financial Corporation
2. The name and address of the registered agent and office is:
Stephen H. Barnett
(NAME)
21845 Powerline Road
(P.O. BOX NOT ACCEPTABLE)
Boca Raton, Florida 33433
(CITY/STATE/ZIP)
SIGNATURE /s/ Stephen H. Barnett
(corporate officer)
TITLE President
DATE October , 1993
HAVING BEEN NAMED AS REGISTERED AGENT AND TO ACCEPT SERVICE OF PROCESS
FOR THE ABOVE STATED CORPORATION AT THE PLACE DESIGNATED IN THIS CERTIFICATE.
I HEREBY ACCEPT THE APPOINTMENT AS REGISTERED AGENT AND AGREE TO ACT
IN THIS CAPACITY. I FURTHER AGREE TO COMPLY WITH THE PROVISIONS OF
ALL STATUTES RELATING TO THE PROPER AND COMPLETE PERFORMANCE OF MY
DUTIES, AND I AM FAMILIAR WITH AND ACCEPT THE OBLIGATIONS OF MY POSITION
AS REGISTERED AGENT.
SIGNATURE
DATE October , 1993
REGISTERED AGENT FILING FEE: $35.00
ARTICLES OF AMENDMENT TO ARTICLES OF INCORPORATION
OF POINTE FINANCIAL CORPORATION
ESTABLISHING SERIES/CLASS OF SHARES
Pursuant to the provisions of Section 607.0602 of the Florida Business
Corporation Act, Pointe Financial Corporation (the "Company") adopts
the following Articles of Amendment to the Articles of Incorporation,
which establish a series/class of shares:
1. The name of the corporation is Pointe Financial Corporation.
2. The amendment determining the class/series of shares is as follows:
Pursuant to the authority vested in the Board of Directors of the
company in accordance with provisions of Article V of the Articles
of Incorporation of the Company, a series of Preferred Stock of the
Company known as Preferred Stock - Series A be, and it hereby is,
created, classified, authorized and the issuance thereof provided
for, and that the designation and number of shares, and relative rights,
preferences and limitations thereof, shall be as follows:
1. Designation; Ranking. A total of fifty thousand (50,000) shares
of the Company's preferred stock are hereby designated as the Preferred
Stock - Series A, $.01 par value per share (the "Series A Preferred"),
and shall have the relative powers, preferences, rights, qualifications,
limitations and restrictions contained in this Amendment. Terms used
but not defined herein shall have the meanings ascribed to them in
the Articles of Incorporation of the Company, as amended from time
to time. The Series A Preferred shall rank senior, both as to payment
of dividends and as to distributions of assets upon liquidation, dissolution
or winding up of the Company, whether voluntary or involuntary, to
all of the Company's now or hereafter issued common stock
2. Voting. The holders of Series A Preferred shall not have any right
to vote, except: that as to any matter on which holders of Series
A Preferred are required to have a vote under applicable law: (i)
each holder of record shall be entitled to one vote for each share
of Series A Preferred standing in his name on the books of the Company
and (ii) except as required by applicable law, the holders of Series
A Preferred and (to the extent of any voting rights) shall vote together
as a single class on all matters as to which holders of Series A Preferred
are entitled to vote. Also, if the Company fails to pay a dividend
on a Dividend Payment Date to the holders of Series A Preferred, then
and thereafter until all past dividends are paid, the holders of Series
A Preferred shall have voting rights equal to one vote per amount
of common stock into which the Series A Preferred could be converted
(that is, one and one-half votes per share of Series A Preferred).
At such time as all cumulative dividends have been paid in full, the
voting rights of the holders of Series A Preferred shall, without
further action, terminate, subject to reinstatement if thereafter
the company fails to pay a dividend on a dividend Payment Date.
3. Dividends. The holders of each issued and outstanding share of
Series A Preferred shall be entitled to receive, when and as declared
by the Board of Directors out of any funds legally available therefor,
dividends on the purchase price per share of Series A Preferred, at
the rate of eight and one-half percent (8.5%) per annum (computed
on the basis of actual days elapsed and a three hundred sixty-five
(365) day year) (the "8.5% Dividends"). The 8.5% Dividends will accrue
and be cumulative to the extent unpaid, but without interest thereon,
whether or not they have been declared and whether or not there are
profits, surplus or other funds of the Company legally available for
the payment of dividends. The 8.5% Dividends shall become due and
payable with respect to any share of Series A Preferred upon Januaryy
1, 1997 and quarterly thereafter (a "Dividend Payment Date"), or upon
any redemption or conversion of such share of Series A Preferred into
common stock. All numbers relating to the calculation of 8.5% Dividends
shall be subject to equitable adjustment in the event of any stock
split, combination, reorganization, recapitalization, reclassification
or other similar event involving a change in the Series A Preferred.
4. Liquidation. in the event of any liquidation, dissolution or winding
up of the Company, whether voluntary or involuntary (a "Liquidation
Event"), each holder of outstanding shares of Series A Preferred shall
be entitled to be paid out of the assets of the company available
for distrubution to stockholders, whether such assets are capital,
surplus, or earnings as follows, and before any amount shall be paid
or distributed to the holders of any class of common stock or of any
other stock ranking on liquidation junior to the Preferred Stock -
Series A an amount equal to $20.00 purchase price per share (adjusted
appropriately for stock splits, stock dividends and the like) (the
"Series A Liquidation Amount") together with any accrued and unpaid
8.5% dividends. Such amount shall be paid in cash or in property taken
at its fair market value, or both, at the election of the board of
Directors of the company. However, if upon any Liquidation Event the
amounts payable with respect to the Series A Preferred and any other
stock ranking as to any such distribution on a parity with the Series
A Preferred are not paid in full, the holders of the Series A Preferred
and such stock shall share ratably in any distribution of assets in
proportion to the full respective preferential amounts to which they
are entitled). Neither the consolidation or merger ???? Company into
or with another entity or entities,nor ???? lease transfer of all
or substantially all of the assets of the Company to either entity
or entities shall be deemed a liquidation, dissolution or winding
up of the affairs of the Company within the meaning of this Paragraph
4.
5. Conversion Into Common Stock.
(a) Conversion Rate. The shares of Series A Preferred shall be convertible
at any time after issue at the option of the record holder thereof,
in the manner hereinafter provided, into fully paid and nonassessable
shares of common stock of the Company at the rate of 1.5 shares of
common stock for each share of Series A Preferred; provided, however,
that as to any shares of Series A Preferred which shall have been
called for redemption, the right of conversion shall terminate at
the close of business on the fifth full business day prior to the
date fixed for redemption. No payment or adjustment shall be made
for dividends accrued on any shares of Series Preferred A that shall
be converted or for dividends on any shares of common stock that shall
be issuable upon such conversion, but all dividends accrued and unpaid
on such shares of Series A Preferred up to the dividend payment date
immediately preceding the date of conversion shall be payable in cash
to the converting shareholder, and no dividend shall be paid upon
the shares of common stock until the same shall be paid or sufficient
funds set apart for the payment thereof.
(b) Conversion Rate Adjustments. The conversion rate provided for
above shall be subject to the following adjustments:
(i) In case the Company shall declare and pay to the holders of the
shares of common stock a dividend in shares of common stock, the conversion
rate in effect immediately prior to the time fixed for the determination
of shareholders entitled to such dividend shall be proportionately
increased (adjusted to the nearest, or if there shall be no nearest
then to the next lower, one-thousandth of a share of common stock),
such adjustment to become effective immediately after the time fixed
for such determination.
(ii) In case the Company shall subdivide the outstanding shares of
common stock into a greater number of shares of common stock or combine
the outstanding shares of common stock into a smaller number of shares
of common stock, the conversion rate in effect immediately prior to
such subdivision or combination, as the case may be, shall be proportionately
increased or decreased (adjusted to the nearest, or if there shall
be no nearest then to the next lower, one-thousandth of a share of
common stock), as the case may require, such increase or decrease,
as the case may be, to become effective when such subdivision or combination
becomes effective.
(iii) In case of any reclassification or change of outstanding shares
of common stock issuable upon conversion of the shares of Series A
Preferred, or in case of any consolidation or merger of the Company
with or into another corporation, or in case of any sale or conveyance
to another corporation of all or substantially all of the property
of the Company, the holder of each share of Series A Preferred then
outstanding shall have the right thereafter, so long as his conversion
right hereunder shall exist to convert such share into the kind and
amount of shares of stock and other securities and property receivable
upon such reclassification, change, consolidation, merger, sale or
conveyance by a holder of the number of shares of common stock of
the Company into which such shares of Series A Preferred might have
been converted immediately prior to such reclassification, change,
consolidation, merger, sale or conveyance, and shall have no other
conversion rights under these provisions. The Articles of Incorporation
of the resulting, surviving, or successor corporation or otherwise,
shall be amended so that the provisions set forth herein shall thereafter
be applicable, as nearly as reasonably may be, to any such other shares
of stock and other securities and property deliverable upon conversion
of the shares of Series A Preferred remaining outstanding or other
convertible preferred shares received by the holders in place thereof.
In case securities or property other than shares or common stock shall
be issuable or deliverable upon conversion as aforesaid, then all
references in this paragraph shall be deemed to apply, so far as appropriate
and as nearly as may be, to such other securities or property. The
subdivision or combination of shares of common stock at any time outstanding
into a greater or lesser number of shares of common stock (whether
with or without par value) shall not be deemed to be a reclassification
of the common stock of the Company for the purposes of this subparagraph
c.
(c) Surrender of Certificates on Conversion. In order to convert shares
of Series A Preferred into shares of common stock, the holder thereof
shall surrender the certificate or certificates for shares of Series
A Preferred, duly endorsed to the Company or in blank (or accompanied
by duly executed stock powers relating thereto), at the office of
any transfer agent for the shares of Series A Preferred (or such other
place as may be designated by the Company), and shall give written
notice to the Company at such office that he elects to convert the
same and shall state in writing therein the name or names in which
he wishes the certificate or certificates for shares of common stock
to be issued. The Company shall, as soon as practicable thereafter,
deliver at such office to such holder of shares of Series A Preferred
or to his nominee or nominees, a certificate or certificates for the
number of full shares of common stock to which he shall be entitled
as aforesaid and shall make appropriate payment in cash for any fractional
shares. Shares of Series A Preferred shall be deemed to have been
converted as of the date of the surrender of such shares for conversion
as provided above, and the person or persons entitled to receive the
shares of common stock issuable upon such conversion shall be treated
for all purposes as the record holder or holders of such shares or
common stock on such date.
(d) No Fractional Shares. No fractions of shares of common stock shall
be issued upon conversion, but in lieu thereof the Company shall adjust
such fractional interest by payment to the holders of an amount in
cash equal to the prorata share of the purchase price of the Series
A Preferred not converted. (For example, .5 share of common stock
would be .5/l.5 = 1/3 x $20 = $6.67.).
(e) Reservation of Common Stock. A number of authorized shares of
common stock sufficient to provide for the conversion of shares of
Series A Preferred outstanding upon the bases here provided shall
at all times be reserved for such conversion.
6. Optional Redemption.
(a) Redemption. The Company may at its option, to the extent it may
do so under applicable law, redeem one hundred percent (100%) of the
then outstanding shares of Series A Preferred on or after January
1, 1999.
(b) Redemption Price. The redemption price (the "Redemption Price")
for each share of the Series A Preferred redeemed pursuant to this
Section 5 shall be the sum of (a) the Series A Liquidation Amount,
plus (b) the amount of any accrued and unpaid 8.5% Dividends. The
Redemption Price shall be paid in cash or immediately available funds
within thirty (30) days after the Redemption Date.
(c) Surrender of Certificates. Each holder of shares of Series A Preferred
to be renewed shall surrender the certificate or certificates representing
such shares to the Company, duly assigned or endorsed for transfer
(or accompanied by duly executed stock powers relating thereto), at
the principal executive office of the Company or the offices of the
transfer agent for the Series A Preferred or such office or offices
as may from time to time be designated by notice to the holders of
Series A Preferred, and thereupon the Redemption Price for such shares
shall be paid to the order of the person whose name appears on such
certificate or certificates and each surrendered certificate shall
be cancelled and retired.
7. Preemptive Rights. Each holder of Series A Preferred shall have
the preemptive right to purchase or subscribe for their prorata share
of capital stock of the Company for all new issues of any class of
stock of the Company, no matter when authorized, and for whatever
consideration is contemplated to be received by the Company, including
but not limited to cash, other property, services, the acquisition
of other Company shares or property through merger or the extinguishment
of debts. These preemptive rights shall apply to any Company obligation
which is convertible to or exchangeable for any stock of the Company,
or where there is attached to such obligation any stock warrants or
rights which allow the holder to acquire by subscription or purchase
any stock of the Company. Preemptive rights shall not apply to the
reissuance of redeemed or otherwise acquired shares which are not
restored to the status of authorized but unissued shares. Preemptive
rights shall not apply to capital stock issued in connection with
stock option plans or employee stock benefit plans, or stock issued
in connection with any acquisition of any business or entity.
3. The amendment was adopted by the Board of Directors effective as
of December 20, 1995.
4. The amendment was duly adopted by the Board of Directors
Dated: December 20, 1995.
POINTE FINANCIAL CORPORATION
By: /s/ R. Carl Palmer, Jr.
R. Carl Palmer, Jr.,
President and Chief
Executive Officer
amend
Articles of Amendment
to
Statement of Designation
of
Preferred Stock, Series A
of
Pointe Financial Corporation
Pursuant to the provisions of Section 607.0602 of the Florida Business
Corporation Act, Pointe Financial Corporation (the "Company") adopts
the following Articles of Amendment to the Statement of Designation
of Preferred Stock, Series A, of the Company (filed with the Florida
Department of State as Articles of Amendment to the Company's Articles
of Incorporation on April 11, 1996) (the "Statement of Designation"):
1. The name of the corporation is Pointe Financial Corporation.
2. The text of the amendment (the "Amendment") to the Statement of
Designation of
Preferred Stock, Series A of Pointe Financial Corporation is that
the first sentence of
Paragraph I of the Statement of Designation is amended to provide
in its entirety as
follows:
"1. Designation Ranking. A total of sixty thousand
(60,000) shares of the Company's preferred stock are
hereby designated as the Preferred Stock - Series A.
$.01 per value Per Share (the "Series A Preferred"), and
shall have the relative powers, preferences, rights,
qualifications, limitations and restrictions contained In
this Amendment."
3. The Amendment was duly adopted by the Board of Directors of the
Company on
April 16, 1997.
4. No shareholder action was required to adopt the Amendment.
IN WITNESS WHERE OF, these Articles of Amendment have been executed
on behalf of the Company by the undersigned member of the Company's
Board of Directors this 1st day of April, 1998.
Pointe Financial Corporation
By: /s/ R. Carl Palmer, Jr.
R. Carl Palmer, Jr.
President and Chief Executive Officer
BYLAWS
OF
POINTE FINANCIAL CORPORATION
ARTICLE I
PRINCIPAL OFFICE
The principal Office of Pointe Financial Corporation (the "Corporation") shall
be in Palm Beach County, Florida, or any such other place that the Board of
Directors may determine.
ARTICLE II
STOCKHOLDERS
Section 2.1 Place of Meetings. All annual and special meetings of stockholders
shall be held at the principal office of the Corporation or at such other place
in or outside of the State of Florida as the Board of Directors may determine.
Section 2.2 Annual Meeting. A meeting of the stockholders of the Corporation for
the election of directors and for the transaction of any other business of the
Corporation shall be held annually at such date and time as the Board of
Directors may determine.
Section 2.3 Special Meetings.
Special meetings of the stockholders
for any purpose or purposes may be called at any time by the Chairman of the
Board, the President, or a majority of the Board of Directors, and shall be
called by the Chairman of the Board, President or the Secretary upon the written
request of the holders of not less than 10% of all the outstanding capital stock
of the Corporation entitled to vote at the meeting. Such written request shall
state the place and purpose or purposes of the meeting and shall be delivered to
the principal office of the Corporation addressed to the Chairman of the Board,
President or Secretary.
Section 2.4 Conduct of Meetings. Annual and special meetings shall be conducted
in accordance with these bylaws and to the extent not inconsistent therewith,
the most current edition of Robert's Rules of Order. The Chairman of the Board
shall preside at all meetings of stockholders, unless he delegates such
authority.
Section 2.5 Notice of Meeting. Written notice stating the place, day and hour of
the meeting and, in the case of a special meeting, the purpose or purposes for
which meeting is called, shall be mailed by the Secretary or the officers
performing his duties, not less than 10 days nor more than 60 days before the
meeting to each stockholder of record entitled to vote at such meeting. If
mailed, such notice shall be deemed to be delivered when deposited in the U.S.
mail, addressed to the stockholder at his address as it appears on the stock
transfer books or records of the Corporation as of the record date prescribed in
Section 2.6, with postage thereon prepaid. If a stockholder is present at a
meeting, or in writing waives notice thereof before or after the meeting, notice
of the meeting to such stockholder need not be given. When any stockholders'
meeting, either annual or special, is adjourned for 30 days or more, notice of
the adjourned meeting shall be given as in the case of an original meeting. It
shall not be necessary to give any notice of the time and place of any meeting
adjourned for less than 30 days or of the business to be transacted at the
meeting, other than an announcement at the meeting at which such adjournment is
taken.
Section 2.6 Fixing of Record Date. For the purpose of determining stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or stockholders entitled to receive payment of any
dividend, or in order to make a determination of stockholders for any other
proper purpose, the Board of Directors may fix in advance a date as the record
date for any such determination of stockholders. Such date in any case shall not
be more than 60 days, and in case of a meeting of stockholders, not less than 10
days prior to the date on which the particular action, requiring such
determination of stockholders, is to be taken. When a determination of
stockholders entitled to vote at any meeting of stockholders has been made as
provided in this section, such determination shall apply to any adjournment
thereof.
Section 2.7 Quorum.
A majority of the outstanding shares of the Corporation entitled to vote,
represented in person or by proxy, shall constitute a quorum at a meeting of
stockholders. If less than a majority of the outstanding shares is represented
at a meeting, a majority of the shares so represented may adjourn the meeting
from time to time without further notice. At such adjourned meeting at which a
quorum shall be present or represented, any business may be transacted which
might have been transacted at the meeting as originally notified. The
stockholders present at a duly organized meeting may continue to transact
business until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum.
Section 2.8 Proxies.
At all meetings of stockholders, a stockholder may vote by proxy executed in
writing by the stockholder or by his duly authorized attorney-in-fact. Proxies
solicited on behalf of management of the Corporation shall be voted as directed
by the stockholder or, in the absence of such direction, as determined by the
Board of Directors. No proxy shall be valid after 11 months from the date of its
execution except for a proxy coupled with interest.
Section 2.9 Voting of Shares in the Names of Two or More Persons. When ownership
of stock of the Corporation stands in the names of two or more persons, in the
absence of written directions to the Corporation to the contrary, at any meeting
of the stockholders of the Corporation any one or more of such stockholders may
cast, in person or by proxy, all votes to which such ownership is entitled. In
the event an attempt is made to cast conflicting votes, in person or by proxy,
by the several persons in whose names shares of stock stand, the vote or votes
to which those persons are entitled shall be cast as directed by a majority of
those holding such stock and present in person or by proxy at such meeting, but
no votes shall be cast for such stock if a majority cannot agree.
Section 2.10 Voting of Shares by Certain Holders. Shares standing in the name of
another corporation may be voted by any officer, agent or proxy as the bylaws of
such corporation may prescribe, or, in the absence of such provision, as the
board of directors of such corporation may determine. Shares held by an
administrator, executor, guardian or conservator may be voted by him, either in
person or by proxy, without a transfer of such shares into his name. Shares
standing in the name of a trustee may be voted by him, either in person or by
proxy, but no trustee shall be entitled to vote shares held by him without a
transfer of such shares into his name. Shares standing in the name of a receiver
may be voted by such receiver, and shares held by or under the control of a
receiver may be voted by such receiver without the transfer thereof into his
name if authority to do so is contained in an appropriate order of the court or
other public authority by which such receiver was appointed.
A stockholder whose shares are pledged shall be entitled to vote such shares
until the shares have been transferred into the name of the pledgee and
thereafter the pledgee shall be entitled to vote the shares so transferred.
Neither treasury shares of its own stock held by the Corporation, nor shares
held by another corporation, if a majority of the shares entitled to vote for
the election of directors of such other corporation are held by the Corporation,
shall be voted at any meeting or counted in determining the total number of
outstanding shares at any given time for purposes of any meeting.
Section 2.11 Voting. At any election of directors every stockholder entitled to
vote at such election shall be entitled to one vote for each share of stock held
by him. Unless otherwise provided in the Articles of Incorporation or by
statute, a majority of those votes cast by stockholders at a lawful meeting
shall be sufficient to pass on a transaction or matter.
Section 2.12 Stockholder Action Without a Meeting.
Any action required to be taken at a meeting of the stockholders of the
Corporation, or any action that may be taken at a meeting of the stockholders,
may be taken without a meeting without prior notice and without a vote, if a
consent in writing setting forth the action so taken shall be signed by holders
of outstanding stock having not less than the minimum number of votes that would
be necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted. Within ten days after obtaining
such authorization by written consent, notice shall be given to those
stockholders who have not consented in writing, fairly summarizing the material
features of the authorized action in compliance with applicable law.
Section 2.13 Inspectors of Election. In advance of any meeting of stockholders,
the Board of Directors may appoint any persons, other than nominees for office,
as inspectors of election to act at such meeting or any adjournment thereof. The
number of inspectors shall be either one or three. If the Board of Directors so
appoints either one or three inspectors, that appointment shall not be altered
at the meeting. If inspectors of election are not so appointed, the person
presiding at the meeting may make such appointment at the meeting. In case any
person appointed as inspector fails to appear or fails or refuses to act, the
vacancy may be filled by appointment by the Board of Directors in advance of the
meeting or at the meeting by the person presiding at the meeting.
The duties of such inspectors shall include: Determining the number of shares of
stock and the voting power of each share, the shares of stock represented at the
meeting, the existence of a quorum, and the authenticity, validity and effect of
proxies; receiving votes, ballots or consents; hearing and determining all
challenges and questions in any way arising in connection with the right to
vote; counting and tabulating all votes or consents; determining the result; and
such acts as may be proper to conduct the election or vote.
Section 2.14 Nominating Committee. The Board of Directors shall act as a
nominating committee for selecting the management nominees for election as
directors. Except in the case of a nominee substituted as a result of the death
or other incapacity of a management nominee, the nominating committee shall
deliver written nominations to the Secretary at least 20 days prior to the date
of the annual meeting. Provided such committee makes such nominations, no
nomination for directors except those made by the nominating committee shall be
voted upon at the annual meeting unless other nominations by stockholders are
made in writing and delivered to the Secretary of the Corporation at least five
days prior to the date of the annual meeting. Ballots bearing the names of all
the persons nominated by the nominating committee and by stockholders shall be
provided for use at the annual meeting. If the nominating committee shall fail
or refuse to act at least 20 days prior to the annual meeting, nominations for
directors may be made at the annual meeting by any stockholder entitled to vote
and shall be voted upon.
Section 2.15 New Business. Subject to applicable regulations under the
Securities Exchange Act of 1934, as amended, any new business to be taken up at
any stockholders meeting shall be stated in writing and filed with the Secretary
of the Corporation at least five days before the date of such meeting, and all
business so stated, proposed and filed shall be considered at such meeting, but
no other proposal shall be acted upon at such meeting unless holders of in
excess of 10% of the outstanding voting capital stock of the Corporation,
present at such meeting in person or by proxy approve a resolution to the effect
that such new business shall be considered at the meeting. This provision shall
not prevent the consideration and approval or disapproval at such meeting or
reports of officers, directors and committees but in connection with such
reports no new business shall be acted upon at such meeting except as herein
provided.
ARTICLE III
BOARD OF DIRECTORS
Section 3.1 General Powers. The business affairs of the Corporation shall be
under the direction of its Board of Directors. The Board of Directors shall
annually elect a Chairman of the Board and a President from among its members.
The Chairman of the Board shall preside at all meetings of the Board of
Directors, unless he delegates such authority.
Section 3.2 Number, Term and Election. The Board of Directors shall consist of
not less than five nor more than 12 members, such number within these parameters
to be set by the Board of Directors by resolution. The Board of Directors shall
be divided into three classes of directors of as nearly equal numbers as is
possible, designated Class I, Class II and Class III, respectively, serving
staggered three-year terms, with the term of a class expiring at each annual
meeting of stockholders. The initial term of office of directors of Class I
shall expire at the annual meeting of stockholders in 1995, that of the
directors of Class II at the 1996 meeting, and that of the directors of Class
III at the 1997 meeting. The Board of Directors shall initially appoint the
members of each class. At each annual meeting of stockholders a number of
directors equal to the number of directors of the class whose term expires at
such meeting (or the number of directors properly nominated and qualified for
election) shall be elected to hold office until the third succeeding annual
meeting of stockholders after their election. In all cases, each director serve
until his successor is elected and qualified, or until earlier death,
resignation or removal.
Section 3.3 Meetings. A regular meeting of the Board of directors shall be held
without other notice than this bylaw provision immediately after, and at the
same place as, the annual meeting of stockholders. The Board of Directors may
provide, by resolution, the time and place for the holding of additional regular
meetings without other notice than such resolution. Special meetings of the
Board of Directors may be called by or at the request of the officer presiding
at meetings of the Board of Directors or by one-third of the directors. The
person authorized to call special meetings of the Board of Directors may fix any
place as the place for holding any special meeting of the Board of Directors
called by such persons.
Members of the Board of Directors may participate in meetings by means of
conference telephone or similar communications equipment by which all persons
participating in the meeting can hear each other. Such participation shall
constitute presence in person but not attendance for the purpose of compensation
pursuant to Section 3.11 of Article III.
Section 3.4 Notice. Written notice of any special meeting shall be given to each
director at least two days prior thereto delivered personally or by telegram or
at least five days previously thereto delivered by mail at the address at which
the director is most likely to be reached. Such notice shall be deemed to be
delivered when deposited in the U.S. mail so addressed, with postage thereon
prepaid if mailed or when delivered to the telegraph company if sent by
telegram. Any director may waive notice of any meeting by a writing, filed with
the Secretary. The attendance of a director at a meeting shall constitute a
waiver of notice of such meeting, except where a director attends a meeting for
the express purpose of objecting to the transaction of any business because the
meeting is not lawfully called or convened. Neither the business to be
transacted at, nor the purpose of, any meeting of the Board of Directors need be
specified in the notice or waiver of notice of such meeting.
Section 3.5 Quorum. A majority of the number of directors fixed by Section 3.2
of Article III shall constitute a quorum for the transaction of business at such
meeting, but if less than such majority is present at a meeting, a majority of
the directors present may adjourn the meeting from time to time. Notice of any
adjourned meeting shall be given in the same manner as prescribed by Section 3.4
hereof.
Section 3.6 Manner of Acting. The act of the majority of the directors present
at a meeting at which a quorum is present shall be the act of the Board of
Directors, unless a greater number is prescribed by these bylaws, the Articles
of Incorporation or by law.
Section 3.7 Action Without a Meeting. Any action required or permitted to be
taken by the Board of Directors at a meeting may be taken without a meeting if a
consent in writing, setting forth the action so taken, shall be signed by all of
the directors.
Section 3.8 Resignation. Any director may resign at any time by sending a
written notice of such resignation to the principal office of the Corporation
addressed to the person who presides at meetings of the Board of Directors.
Unless otherwise specified therein such resignation shall take effect upon
receipt thereof by such person. More than three consecutive absences from
regular meetings of the Board of Directors, unless excused by resolution of the
Board of Directors, shall automatically constitute a resignation, effective when
such resignation is accepted by the Board of Directors.
Section 3.9 Vacancies. Any vacancy occurring in the Board of Directors may be
filled by the affirmative vote of a majority of the remaining directors although
less than a quorum of the Board of Directors. A director elected to fill a
vacancy shall be elected to serve until the next election of directors by the
stockholders. Any directorship to be filled by reason of an increase in the
number of directors may be filled by election by the Board of Directors for a
term of office continuing only until the next election of directors by the
stockholders.
Section 3.10 Removal of Directors. At a lawful meeting of stockholders called
expressly for that purpose, any director or the entire Board of Directors may be
removed, with or without cause, by a vote of the holders of a majority of the
shares then entitled to vote at an election of directors voting at such meeting.
Section 3.11 Compensation. Directors, as such, may receive a stated salary for
their services. By resolution of the Board of Directors, a reasonable fixed sum,
and reasonable expenses of attendance, if any, may be allowed for actual
attendance at each regular or special meeting of the Board of Directors. Members
of either standing or special committees may be allowed such compensation for
actual attendance at committee meetings as the Board of Directors may determine.
Section 3.12 Presumption of Assent. A director of the Corporation who is present
at a meeting of the Board of Directors at which action on any corporate matter
is taken shall be presumed to have assented to the action taken unless his
dissent or abstention shall be entered in the minutes of the meeting or unless
he shall file his written dissent to such action with the person acting as the
Secretary of the meeting before the adjournment thereof or shall forward such
dissent by registered mail to the Secretary of the Corporation within five days
after the date he receives a copy of the minutes of the meeting. Such right to
dissent shall not apply to a director who voted in favor of such action.
ARTICLE IV
EXECUTIVE AND OTHER COMMITTEES
Section 4.1 Appointment. The Board of Directors, by resolution adopted by a
majority of the full Board of Directors, may designate the Chief Executive
Officer and two or more other directors to constitute an executive committee.
The designation of any committee pursuant to this Article IV and the delegation
of authority thereto shall not operate to relieve the Board of Directors, or any
director, of any responsibility imposed by law.
Section 4.2 Authority. The executive committee, when the Board of Directors is
not in session, shall have and may exercise all of the authority of the Board of
Directors except to the extent, if any, that such authority shall be limited by
the Articles of Incorporation, bylaws, the resolution appointing the executive
committee or Florida law.
Section 4.3 Tenure. Subject to the provisions of Section 4.8 of this Article IV,
each member of the executive committee shall hold office until the next regular
annual meeting of the Board of Directors following his designation and until his
successor is designated as a member of the executive committee.
Section 4.4 Meetings. Regular meetings of the executive committee may be held
without notice at such times and places as the executive committee may fix from
time to time by resolution. Special meetings of the executive committee may be
called by any member thereof upon not less than one day's notice stating the
place, date and hour of the meeting, which notice may be written or oral. Any
member of the executive committee may waive notice of any meeting and no notice
of any meeting need be given to any member thereof who attends in person. The
notice of a meeting of the executive committee need not state the business
proposed to be transacted at the meeting.
Section 4.5 Quorum. A majority of the members of the executive committee shall
constitute a quorum for the transaction of business at any meeting thereof, and
action of the executive committee must be authorized by the affirmative vote of
a majority of the members present at a meeting at which a quorum is present.
Section 4.6 Action without a Meeting. Any action required or permitted to be
taken by the executive committee at a meeting may be taken without a meeting if
a consent in writing, setting forth the action so taken, shall be signed by all
of the members of the executive committee.
Section 4.7 Vacancies. Any vacancy in the executive committee may
be filled by a resolution adopted by a majority of the full Board
of Directors.
Section 4.8 Resignations and Removals. Any member of the executive committee may
be removed at any time with or without cause by resolution adopted by a majority
of the full Board of Directors. Any member of the executive committee may resign
at any time by sending a written notice of such resignation to the principal
office of the Corporation addressed to the person who presides at meetings of
the Board of Directors. Unless otherwise specified therein, such resignation
shall take effect upon receipt thereof by such person; the acceptance of such
resignation shall not be necessary to make it effective.
Section 4.9 Procedure. The executive committee shall elect a presiding officer
from its members and may fix its own rules of procedure which shall not be
inconsistent with these bylaws. it shall keep regular minutes of its proceedings
and report the same to the Board of Directors for its information at the meeting
thereof held next after the proceedings shall have been taken.
Section 4.10 Other Committees. The Board of Directors may by resolution
establish an audit committee, a loan committee and such other committees
composed of directors as they may determine to be necessary or appropriate for
the conduct of the business of the Corporation and may prescribe the duties,
constitution and procedures thereof.
ARTICLE V
OFFICERS
Section 5.1 Positions. The officers of the Corporation shall be a President, one
or more Vice Presidents, a Secretary and a Treasurer, each of whom shall be
elected by the Board of Directors. The Board of Directors may also designate the
Chairman of the Board as an officer. The President shall be the Chief Executive
Officer, unless the Board of Directors designates the Chairman of the Board as
Chief Executive Officer. The President shall be a director of the Corporation.
The offices of the Secretary and Treasurer may be held by the same person and a
Vice President may also be either the Secretary or the Treasurer. The Board of
Directors may designate one or more Vice Presidents as Executive Vice President
or Senior Vice President. The Board of Directors may also elect or authorize the
appointment of such other officers as the business of the Corporation may
require. The officers shall have the authority and perform such duties as the
Board of Directors may from time to time authorize or determine. In the absence
of action by the Board of Directors the officers shall have such powers and
duties as generally pertain to their respective offices.
Section 5.2 Election and Term of Office. The officers of the Corporation shall
be elected annually at the regular meeting of the Board of Directors following
the annual meeting of the stockholders of the Corporation. If the election
officers is not held at such meeting, such election shall be held as soon
thereafter as possible. Each officer shall hold office until his successor shall
have been duly elected and qualified or until his death or until he shall resign
or shall have been removed in the manner hereinafter provided. Election or
appointment of an officer, employee or agent shall not of itself create contract
rights. The Board of Directors may authorize the Corporation to enter into an
employment contract with any officer; but no such contract shall impair the
right of the Board of Directors to remove any officer at any time in accordance
with Section 5.3 of this Article V.
Section 5.3 Removal. Any officer may be removed by the Board of Directors
whenever, in its judgment the best interests of the Corporation will be served
thereby, but such removal, other than for cause, shall be without prejudice to
the contract rights, if any, of the person so removed.
Section 5.4 Vacancies. A vacancy in any office because of death, resignation,
removal, disqualification or otherwise, may be filled by the Board of Directors
for the unexpired portion of the term.
Section 5.5 Remuneration. The remuneration of the officers shall be
fixed from time to time by the Board of Directors.
ARTICLE VI
CONTRACTS, LOANS, CHECKS AND DEPOSITS
Section 6.1 Contracts. Except as otherwise provided by these bylaws with respect
to certificates for shares, the Board of Directors may authorize any officer,
employee or agent of the Corporation to enter into any contract or execute and
deliver any instrument in the name of and on behalf of the Corporation. Such
authority may be general or confined to specific instances.
Section 6.2 Loans. No loans shall be contracted on behalf of the Corporation and
no evidence of indebtedness shall be issued in its name unless authorized by the
Board of Directors. Such authority may be general or confined to specific
instances.
Section 6.3 Checks, Drafts, Etc. All checks, drafts or other orders for the
payment of money, notes or other evidences of indebtedness issued in the name of
the Corporation shall be signed by one or more officers, employees or agents of
the Corporation in such manner as shall from time to time be determined by the
Board of Directors.
Section 6.4 Deposits. All funds of the Corporation not otherwise employed shall
be deposited from time to time to the credit of the Corporation in any of its
duly authorized depositories as the Board of Directors may select.
ARTICLE VII
CERTIFICATES FOR SHARES AND THEIR TRANSFER
Section 7.1 Certificates for Shares. Certificates representing shares of capital
stock of the Corporation shall be in such form as shall be determined by the
Board of Directors. Such certificates shall be signed by officers of the
Corporation as provided by law. The signatures of such officers upon a
certificate may be facsimiles if the certificate is manually signed on behalf of
a transfer agent or a registrar, other than the Corporation itself or one of its
officers. Each certificate for shares of capital stock shall be consecutively
numbered or otherwise identified. The name and address of the person to whom the
shares are issued, with the number of shares and date of issue, shall be entered
on the stock transfer books of the Corporation. All certificates surrendered to
the Corporation for transfer shall be canceled and no new certificate shall be
issued until the former certificate for the like number of shares shall have
been surrendered and canceled, except that in case of a lost or destroyed
certificate, a new certificate may be issued therefor upon such terms and
indemnity to the Corporation as the Board of Directors may prescribe.
Section 7.2 Transfer of Shares. Transfer of shares of capital stock of the
Corporation shall be made only on its stock transfer books. Authority for such
transfer shall be given only by the holder of record thereof or by his legal
representative, who shall furnish proper evidence of such authority, or by his
attorney thereunto authorized by power of attorney duly executed and filed with
the Corporation. Such transfer shall be made only on surrender for cancellation
of the certificate for such shares. The person in whose name shares of capital
stock stand on the books of the Corporation shall be deemed by the Corporation
to be the owner thereof for all purposes.
ARTICLE VIII
FISCAL YEAR; ANNUAL AUDIT
The fiscal year of the Corporation shall end on the 31st of December of each
year. The Corporation shall be subject to an annual audit as of the end of its
fiscal year by an independent public accountant appointed by and responsible to
the Board of Directors.
ARTICLE IX
DIVIDENDS
Dividends upon the stock of the Corporation, subject to the provisions
of its Articles of Incorporation, if any, may be declared by the Board
of Directors at any regular or special meeting, pursuant to law. Dividends
may be paid in cash, in property or in stock.
ARTICLE X
SEAL
The corporate seal of the Corporation shall be in such form as the Board of
Directors shall prescribe.
ARTICLE XI
INDEMNIFICATION AND INSURANCE
Section 11.1 General. Subject to Section 11.2 of this Article, the Corporation
shall indemnify any person against whom an action is brought or threatened
because that person is or was a director, officer, or employee of the
Corporation for:
(a) Any amount for which that person becomes liable under a judgment in such
action; and
(b) Reasonable costs and expenses, including reasonable attorneys' fees,
actually paid or incurred by that person in defending or settling such action,
or in enforcing his rights under this Article if he attains a favorable judgment
in such enforcement action.
Section 11.2 Requirements. Indemnification shall be made to such person
under Section 11.1 of this Article only if:
(a) Final judgment on the merits is in his favor; or
(b) In case of (i) settlement, (ii) final judgment against him, or (iii) final
judgment in his favor, other than on the merits, if a majority of the directors
of the Corporation determine that he was acting in good faith within the scope
of his employment or authority as he could reasonably have perceived it under
the circumstances and for a purpose he could reasonably have believed under the
circumstances was in the best interests of the Corporation or its members.
Section 11.3 Payment of Expenses. If a majority of the directors of the
Corporation concludes that, if any person ultimately may become entitled to
indemnification under this Article, the directors may authorize payment of
reasonable costs and expenses, including reasonable attorneys' fees, arising
from the defense or settlement of such action. Before making such payment the
Corporation shall obtain an agreement that it will be repaid if such person is
later determined not to be entitled to such indemnification.
Section 11.4 Additional Indemnification. Notwithstanding Section 11.1, 11.2, and
11.3 of this Article, but in addition thereto, each person who is or was a
director, officer, employee or agent of the Corporation (including the heirs,
executors, administrators or estate of such person), or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, shall be
indemnified by the Corporation as of right to the full extent permitted or
authorized by the present and future laws of the State of Florida and any other
applicable laws against any liability, cost, payment or expense asserted
against, or paid or incurred by, him in his capacity as such a director,
officer, employee or agent.
Section 11.5 Insurance. The Corporation may obtain insurance to protect it and
its directors, officers, and employees from potential losses arising from claims
against any of them for alleged wrongful acts, or wrongful acts, committed in
their capacity as directors, officers, or employees. The Corporation may not
obtain insurance which provides for payment of losses of any person incurred as
a consequence of his willful or criminal misconduct.
ARTICLE XII
AMENDMENTS
These bylaws may be amended at any time by either the Board of Directors or the
stockholders, but the Board of Directors may not amend or repeal any bylaw
adopted by the stockholders if the stockholders specifically provide that such
bylaw is not subject to amendment or repeal by the directors.
ARTICLE XIII
CONTROL SHARE ACQUISITIONS
Section 607.0902, Florida Statutes, shall not apply to control share
acquisitions (as that term is defined in such section) of shares of the
Corporation.
1S-8416a.sml
POINTE FINANCIAL CORPORATION
NON-STATUTORY
1994 STOCK OPTION PLAN
1. PURPOSE. The purpose of the Pointe Financial Corporation Non-Statutory 1994
Stock Option Plan (the "Plan") is to advance the interest of Pointe Financial
Corporation and its subsidiaries (collectively referred to herein as the
"Company"), by encouraging and enabling the acquisition, through options granted
under the Plan, of a personal and financial interest in the Company by certain
officers and other employees of the Company or its subsidiaries and by Directors
and Directors Emeriti who are not officers or employees of the Company or its
subsidiaries ("Outside Directors"), to retain present employees, to compete
effectively with other enterprises for the services of new employees, to
stimulate the efforts of said employees on their employer's behalf, to provide
Outside Directors with an incentive to achieve long-term objectives of the
Company, to attract and retain non-employee directors of outstanding competence,
and to provide such Outside Directors with an opportunity to acquire an equity
interest in the Company.
2. ADMINISTRATION. The Plan shall be administered by the Board of Directors of
the Company (the "Board"), subject to and in accordance with the following
provisions:
(a) The Board shall have the power, subject to and within the limitations of
the express provisions of the Plan:
(i) to determine from time to time which of the eligible persons designated in
Paragraph 4 hereof shall be granted options under the Plan (the "Optionees") and
the time or times when and the number of shares for which options (the
"Options") shall be granted to them;
(ii) to construe and interpret the Plan and to define the terms used therein,
and to prescribe and establish, amend, rescind and revoke rules and regulations
relating to the administration of the Plan;
(iii) to determine the duration and purpose of the leaves of absence which may
be granted to Optionees, without constituting the termination of their
employment for purposes of the Plan;
(iv) pursuant to and in the exercise of the powers contained herein, to
correct any defect or supply any omission, or reconcile any inconsistency in the
Plan or any Option agreement, in the manner and to the extent it shall deem
necessary or expedient to make the Plan effective;
(v) to prescribe the terms and provisions (not inconsistent with the Plan) of
each Option granted under the Plan (which need not be identical); and
(vi) to make all other determinations necessary or advisable for the
administration of the Plan and to exercise such power and to perform such
actions deemed necessary or expedient to promote the best interests of the
Company with respect to the Plan.
The Board shall have the final power to determine all questions of policy or
expediency which may arise in the administration of the Plan, and such
determinations of the Board in the matters referred to in the foregoing clause
or otherwise in the Plan shall be conclusive and binding upon the applicable
parties. All power and authority of the Board and all determinations made by the
Board as referred to in this Plan, shall be exercisable by the Board in its sole
discretion.
(b) The Board, by resolution, may delegate the administration of the Plan to
three or more persons (the "Committee"). If administration is delegated as
aforesaid, the delegates, as the Committee, shall have, in connection with the
administration of the Plan, the powers theretofore possessed by the Board in its
capacity as the administrator of the Plan, subject, however, to the exercise of
such power not being inconsistent with the provisions of the Plan as from time
to time may be adopted by the Board and subject to the final power of the Board
to determine all questions of policy and expediency in administration of the
Plan. The Board at any time, by resolution, may abolish the Committee and revest
the administration of the Plan in the Board.
(c) The Board shall bold its meetings at such times and such places as it
deems advisable and a majority of its members shall constitute a quorum. All
actions of the Board shall be taken by majority vote of its members entitled to
vote upon the matter before it. In lieu of a meeting, any such action may also
be taken by the written consent of all members of the Board entitled to vote on
the matters before it.
3. STOCK. The shares of stock of the Company available for the grant of Options
under this Plan shall consist of the Company's authorized but unissued Common
Stock (the "Common Stock") or shares of Common Stock held by the Company in its
treasury or the number or kind of shares of stock or other securities which
shall be substituted for said shares or to which said shares shall be adjusted,
as provided in Paragraph 7 below. The number of shares for which Options may be
granted shall not exceed 20,000 shares per year for a total of 100,000 shares
subject to adjustment as provided in Paragraph 7 of the Plan). In the event that
any outstanding Option under the Plan for any reason shall lapse, expire or
terminate, the shares of Common Stock allocable to the unexercised portion of
such Option may again be made available for the granting of an Option under this
Plan without being deemed to cause a reduction in the balance of shares of
Common Stock available for the granting of Options.
4. PARTICIPANTS. "Participant" shall be defined to mean those persons who are
employed by or serve the Company or its subsidiaries as an officer or employee
(whether or not they are directors or otherwise compensated) and those persons
who are members of the Board of Directors of the Company or any of its
subsidiaries. "Optionee" shall be defined to mean a Participant who, as a valued
officer, employee, or Director of the Company or its subsidiaries, or if
designated as Director Emeritus, for so long as so designated, has been selected
for and granted an Option or Options by the Board in accordance with the
provisions of the plan. For purposes hereof, the terms "employed by" and
"employment" shall include service as a Director or designation as Director
Emeritus. Any Participant may be granted more than one Option by the Board.
Notwithstanding anything to the contrary contained in the Plan, nothing
contained in this Plan nor in any option granted pursuant to the Plan shall be
deemed or construed as imposing upon the Company or any of its subsidiaries an
obligation or responsibility to continue the affiliation or employment of any
Optionee or Participant, nor limit in any way the right if the Company or its
subsidiaries, as applicable, to terminate the Optionee's or Participant's
employment or position with the Company or its subsidiaries, nor confer upon or
be construed as permitting an Optionee or Participant any right to continue in
the employ or service of the Company or any of its subsidiaries, nor to
interfere in any way with the right of the Company or any of its subsidiaries to
reduce any Optionee's or Participant's compensation and benefits from that
existing from time to time, including that as existing at the time of the
adoption of the Plan or of the granting of any Option. So long as an Optionee
shall continue to serve or be employed by the Company or its subsidiaries, his
Option shall not be affected by any change of duty or position or by any
temporary leave of absence approved by the Board.
5. GRANT AND TERMS OF OPTIONS. The Board may, from time to time, grant Options
to purchase Common Stock to eligible Participants in accordance with the
provisions of the Plan and upon such other terms and conditions as are not
inconsistent with the provisions and purposes of the Plan. The Board shall
determine the number of shares, if any, to be granted in any year, the
Participants to whom such Options shall be granted, the number of shares to be
granted to each Participant selected by the Board, and all other matters
pertaining thereto. All Options granted pursuant to the Plan shall be evidenced
by Option agreements ("Option Agreements") which need not be identical but which
shall be make by the Board in accordance with the following provisions:
(a) Terms of Options. No Option shall expire later than five (5) years from
the date it is granted, but each such Option shall be subject to earlier
termination as provided in subparagraph (g) below.
(b) Exercise of Options. Each Option granted under the Plan shall be
exercisable on such date or dates and during such period and for such number of
shares as shall be determined by the Board. Each Option may be exercisable in
one or more "installments" (which need not be equal) and/or in total and at such
times as the Board shall determine. To the extent not exercised, installments
may, if provided by the Board, accumulate and be exercised in whole or in part
at any time after installments become exercisable but not later than the date
the Option, or any such installment right to exercise the Option, expires as
determined by the Board.
(c) Price. The purchase price per share of Common Stock shall be the "fair
market value per share" of the Common Stock on the date the Option is granted.
For purposes of the Plan, the term "fair market value per share" shall be
defined to mean the total equity available to the holders of the Common Stock
divided by the total number of outstanding shares of Common Stock, except that,
notwithstanding the foregoing, if any arm's length trades in the Common Stock
were made in the three (3) months preceding the date on which the Option was
granted, "fair market value per share" shall be defined to mean the average
price per share of any such trades. The price per share shall be subject to
adjustment, as applicable under Paragraph 7 hereof. All price computations shall
be subject to the final determination of the Board, which shall be conclusive
upon all parties, and the Board shall further have the right to establish
different methods of computation of "fair market value per share" if the
circumstances shall make the foregoing methods impractical or if the Board shall
determine that a different method shall be appropriate and equitable.
(d) Number of Shares. The number of shares granted for each Option shall be
determined by the Board but shall not be less than fifty (50) shares and,
furthermore, no Option may be exercised for the purchase of less than
twenty-five (25) shares at any one time unless, by virtue of such exercise, the
balance of all unpurchased shares available to be purchased under the Option are
then purchased. No fractional shares shall be issued.
(e) Payment. The purchase price of the Common Stock sold pursuant to an Option
shall be paid in cash or in such other manner as may be determined by the Board.
(f) Notice of Exercise. To the extent that the right to purchase shares has
accrued thereunder, Options may be exercised from time to time by notice to the
Company, as the Board may prescribe or approve, stating the number if shares for
which the Option is being exercised. The date the notice is received by the
Company shall be the exercise date. Any cash payment and other appropriate
evidence of payment for the shares purchased under the terms of the Option shall
be made within five (5) business days after the exercise date. At the time of
such payment, or as soon as reasonable thereafter, the Company shall deliver to
the applicable Optionee a certificate or certificates for the shares of Common
Stock purchased and shall pay any transfer or issue tax therefor.
(g) Termination of Service. Subject to the Board's right to extend the period
during which the Option may be exercised as provided below, immediately upon
termination of the Optionee's employment with the Company or any of its
subsidiaries, as applicable, all rights of the Optionee to exercise such Option
shall then lapse, cease, and be terminated, unless the Board shall have provided
expressly to the contrary by incorporating exceptions in the Optionee's Option
Agreement in accordance with and as limited by the following provisions (i) and
(ii):
(i) Retirement or Disability. The Board may provide in the Option Agreement
for a period not exceeding any one (1) year during which the Optionee shall have
the right to exercise his Option following termination of employment if the
Optionee's employment was terminated because of retirement under any pension or
retirement plan of the Company or any of its subsidiaries, or with the approval
of the Board, or because of disability, as determined by the Board.
(ii) Death. The Board may provide in the Option Agreement, for a period not
exceeding one (1) year, during which, if an Optionee's employment is terminated
by his death, the person or persons to whom such Optionee's rights under such
Options shall pass by applicable laws of descent and distribution, or his
estate, as applicable, shall have the right to exercise such Option to the
extent such Option was exercisable by the Optionee immediately prior to his
death.
(h) Non-Transferability of Options. Options shall not be transferred nor
assigned except by will or by laws of descent and distribution. During the
lifetime of the Optionee only the Optionee may exercise his Option, except said
Option may be exercised by a person appointed under a durable power of attorney
as power of attorney or attorney in fact, made by the Optionee, pursuant to
Section 709.08, Florida Statutes, or by his duly appointed guardian in the event
of his adjudication of incompetency. If the Optionee shall die, his Option shall
be exercised only by his personal representative or administrator of his estate
or by a person or persons to whom such Optionee's rights under such Option is
passed by will or under the laws of descent or distribution, as applicable.
Except as provided above, the Option shall not be transferred, pledged or
hypothecated in any way; shall not be assigned by operation of law; and shall
not be subject to execution, attachment, or similar process.
(i) Non-Transferability of Stock Acquired. The Board shall have the right to
impose, as a condition of purchasing the Common Stock under any Option granted
hereunder, restrictions on the transfer of shares acquired through the exercise
of such Option.
(j) Other Terms and Conditions. Options may contain such other provisions
which may not be inconsistent with any of the foregoing terms as the Board may
determine to be appropriate.
6. USE OF PROCEEDS FROM OPTION. Proceeds from the sale of the Common Stock under
the Options shall constitute general funds of the Company to be used for general
corporate purposes.
7. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION.
(a) If any shares of the Company's Common Stock are increased, decreased or
changed into, exchanged for, or a dividend is declared consisting of, a
different number or kind of shares or securities, whether through merger,
consolidation, separation, reorganization, recapitalization, reclassification,
stock dividend, stock split, reverse split, combination of shares, exchange of
shares, spin-off, change in corporate structure or the like, an appropriate and
proportionate adjustment shall be made in the number and kinds of shares subject
to unexercised Options or portions thereof granted prior to any such change and
in all other numbers of shares provided for herein. Any such adjustment in an
outstanding Option, however, may be made with or without a change in the total
price applicable to the unexercised portion of the Option or with or without a
corresponding adjustment in the price for each share covered by the Option, as
the Board deems appropriate.
(b) Notwithstanding the foregoing, upon dissolution or liquidation of the
Company, or upon a reorganization, merger or consolidation or other change in
corporate structure in which the Company is not the surviving corporation, or
pursuant to which the Company becomes a more than fifty percent (50%) subsidiary
of another corporation, or upon the sale of substantially all of the property of
the Company to another corporation, the Options issued hereunder shall
terminate, unless provision was made by the Board in the Option Agreement
granted by the Board or is made in connection with such transaction for the
assumption of Options theretofore granted, or for the substitutions of such
Options for new Options of the successor corporation or a parent of subsidiary
thereof, with appropriate adjustment as to the number and kind of shares and the
per share exercise prices. Adjustments under this paragraph shall be made by the
Board, whose determinations as to what adjustment shall be made, and the extent
thereof, shall be conclusive.
(c) In adjusting the Common Stock as described in subparagraphs (a) and (b)
above, or in determining that no such adjustment is necessary, the Board may
rely upon the advice of counsel and accountants of the Company and the
determination of the Board shall be conclusive. Whether or not the Board
determines to make any such adjustment, it may nevertheless accelerate the
exercisability of Options then outstanding for limited period prior to the
occurrence of any of such events or in other circumstances where the Board
determines such acceleration appropriate. No fractional shares of Common Stock
shall be issued under the Plan on account of any adjustment specified above.
(d) Notwithstanding anything to the contrary contained in the foregoing
provisions of this Paragraph 7, the Board shall have the right to:
(i) waive any adjustment as described in subparagraphs (a) and (b) above,
because of the issuing of any shares for the acquisition of any corporation or
assets by the Company; for the satisfaction of this or any other stock option
plan; or for any new issue of corporation stock constituting a public offering
or a private placement;
(ii) provide in any Option Agreement (without requiring similar provisions in
any other Option Agreement) that in the event of a dissolution or liquidation of
the Company or upon any merger or consolidation or other change in corporate
structure in which the Company is not the surviving corporation, or pursuant to
which the Company becomes a more than fifty percent (50%) subsidiary of another
corporation, the Optionee shall have the right immediately prior to such
liquidation, dissolution, merger or consolidation, or other change in corporate
structure, to exercise his Options in whole or in part.
8. TERMINATION AND AMENDMENT OF THE PLAN. The Board shall have the right at any
time, without approval or further action on the part of the shareholders of the
Company, to suspend, modify, amend or terminate the Plan and, with consent of
the Optionee, to make such modification of the terms and conditions of this
Option as the Board shall determine, and further to adopt such rules and
regulations for carrying out the Plan, all as the Board shall determine;
provided, however, no amendment or modification of the Plan shall be made by the
Board which would: (i) materially increase the number of shares which may be
issued under the Plan; or (ii) materially modify the requirements as to
eligibility for Participants in the Plan; or (iii) materially increase the
benefits accruing to Participants under the Plan; unless such amendment or
modification shall be first approved by a majority of the total votes eligible
to be cast by the holders of the voting stock of the Company. Except as provided
in Paragraph 7, rights and obligations under any Option granted before amendment
or modification of the Plan or prior to any suspension or termination of the
Plan shall not be altered or impaired by such amendment, modification,
alteration or suspension except with the consent of the person to whom the
Option was granted. Notwithstanding the foregoing, the Board may grant to an
Optionee, if otherwise eligible, extensions of or additional Options, or, with
consent of the Optionee, grant a new Option in lieu of the outstanding Option,
for a number of shares, at an Option price and for a term which in any respect
may be greater or less than that of the prior Option, subject, however, to the
provisions of the Plan as set forth herein.
9. REGULATORY REQUIREMENTS. No Option granted pursuant to the Plan shall be
exercisable in whole or in part if at any time the Board shall determine that
the listing, registration, or qualification of the shares of Common Stock
subject to such Option on any securities exchange or under applicable
governmental laws, rules or regulations, or the consent or approval of a
governmental regulatory body, is necessary or desirable as a condition of or in
connection with, the granting of such Option or the issuance of shares
thereunder, unless (i) such listing, registration, qualification, consent, or
approval shall have been effected or obtained free of any condition not
acceptable to the Board; or (ii) the Board shall determine upon evidence
satisfactory to it that the holder of such Option will not transfer such shares
except pursuant to a registration required thereunder and/or an option of
counsel, acceptable to the Board and its counsel, has been received by the Board
to the effect that such registration is not required. Any determination in this
connection by the Board shall be final, binding and conclusive. Additionally,
the Board and its counsel may require the imprinting of a legend upon any shares
issued pursuant to an Option if it determines such to be necessary or
appropriate under applicable laws and regulations or otherwise to comply with
restrictions provided pursuant to the Plan. The Company may, at its cost,
register any securities issued under the Plan pursuant to applicable laws and
regulations as determined by the Board. The Company shall not be obligated to
take any other affirmative action in order to cause the exercise of any Option
or the issuance of shares pursuant thereto to comply with any law or regulation
of any governmental authority.
10. TAX WITHHOLDING. The Board shall have the right to require the deduction of
such sums which, under federal or state laws, will be required to be withheld
with respect to the exercise of any Option; provided, however, in the
alternative, the Board may require the Option holder or other person exercising
such Option to pay such sums with its payment for the Option. Neither the
Company nor any of its subsidiaries or affiliates shall have any obligation to
advise any Option holder of the existence or the amount of such tax which may be
required.
11. RIGHTS AS STOCKHOLDERS. No Optionee shall have rights of stockholders with
respect to shares of Common Stock covered by the Option until the date of
issuance of a stock certificate for such shares and the delivery thereof to the
Optionee after the exercise of his Option.
12. EFFECTIVENESS OF THE PLAN. The Plan as originally adopted by the Board was
approved by the stockholders of Pointe Federal Savings Bank ("Pointe Federal")
on _________; the Plan has become the stock option plan of the company as a
result of the Company's acquisition of Pointe Federal, which acquisition was
approved by the Pointe Federal stockholders on April 29, 1994. No Common Stock
shall be issued hereunder contrary to the provisions of the Company's Articles
of Incorporation.
13. MISCELLANEOUS.
(a) Whenever the singular number is used herein, the same shall include the
plural; and the masculine and/or feminine and natural and/or artificial person
shall include all genders whenever and wherever the context so requires or
permits.
(b) References herein to the terms: (i) "subsidiary" shall mean any company
which is controlled by the Company or by a company which is a subsidiary of the
company; and (ii) "company" shall mean any corporation, partnership, joint
venture, or other legal entity.
For purposes hereof, the Company shall be deemed to have "control" of the
applicable company if the Company directly or indirectly or through one or more
subsidiaries owns, controls or holds with power to vote or proxies representing,
fifty percent (50%) or more of the voting shares or interest in such company.
14. GOVERNING LAW. This Plan shall be governed by and construed in accordance
with the laws of the State of Florida. In the event any provision of this Plan
shall be deemed invalid, the remainder of this Plan, or the application of such
provision to persons or circumstances other than those to which it is held
invalid, shall not be affected thereby and shall continue to be binding and in
force.
1-10062.nsg
POINTE FEDERAL SAVINGS BANK
DEFERRED FEE AGREEMENT
THIS AGREEMENT, is made this ___ day of ______________, 199__, effective as
of the 1st day of October, 1993, by and between POINTE FEDERAL SAVINGS BANK
(the "Company"), and (the "Director").
WITNESSETH:
WHEREAS, the director is a director of the Company; and
WHEREAS, to encourage the Director to remain a memeber of the Company's
Board of Directors, the Company by action of its Board of Directors
authorized effective as of October 1, 1993 the provision to the Director of a
deferred fee opportunity should the Director wish to defer the fees payable
to him or her in consideration for his or her services as a director of the
Company, all as hereinafter set forth. In addition, the Company authorized
effective as of October 1, 1993 the provision to the Director of certain
deferred compensation benefits, all as hereinafter set forth; and
WHEREAS, the parties hereto wish to memorialize the terms and conditions
upon which the Company agreed to pay such deferred compensation to the
Director or his or her beneficiary; and
WHEREAS, the parties hereto intend that this Agreement be considered an
unfunded arrangement.
NOW, THEREFORE, in consideration of the mutual promises and covenants set
forth in this Agreement, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties to this
Agreement agree as follows:
Article 1
Recitation
1.1 Recitations. The above recitations are true and correct, and form a
part of this Agreement.
Article 2
Definitions
2.1 Definitions. Whenever used in this Agreement, the following words and
phrases shall have the meanings specified:
2.1.1 "Accrued Benefit" means the sum of all Deferred Fees credited to
the Director's Deferred Compensation Account pursuant to Article 3 and all
Deferred Compensation Amounts credited to the Director's Deferred
Compensation Account pursuant to Section 4. 1, together with Additions
thereof calculated as set forth in Section 4.2, minus distributions
hereunder.
POINTE FEDERAL SAVINGS BANK
DEFERRED FEE AGREEMENT
THIS AGREEMENT is made this __ day of __199__, effective as of the 1st day
of October, 1993, by and between POINTE FEDERAL SAVINGS BANK (the "Company"),
and (the "Director").
WITNESSETH:
WHEREAS, the Director is a director of the Company; and
WHEREAS, to encourage the Director to remain a member of the Company's
Board of Directors, the Company by action of its Board of Directors
authorized effective as of October 1, 1993 the provision to the Director of a
deferred fee opportunity should the Director wish to defer the fees payable
to him or her in consideration for his or her services as a director of the
Company, all as hereinafter set forth. In addition, the Company authorized
effective as of October 1, 1993 the provision to the Director of certain
deferred compensation benefits, all as hereinafter set forth; and
WHEREAS, the parties hereto wish to memorialize the terms and
conditions upon which the Company agreed to pay such deferred compensation to
the Director or his or her beneficiary; and
2.1.2 "Deferred Compensation Account " means book entries maintained by the
Company reflecting Deferred Fees, Deferred Compensation Amounts, and
Additions
thereon as set forth in Article 5.
2.1.3 "Effective Date" means October 1, 1993.
2.1.4 "Election Form" means the Form attached as Exhibit A.
2.1.5 "Fees" means the total directors fees and retainer payable to the
Director pursuant to the Schedule of Director's Fees, as such Schedule is
approved from time to time by the Board of Directors.
2.1.6 "Fiscal Year" means the taxable year of the Company for federal
income tax purposes.
2.1.7 "Normal Termination Date" means the Director attaining age 62.
2.1.8 "Termination of Service" means the Director's ceasing to be a member
of the Company's Board of Directors for any reason whatsoever, whether before
or after the Normal Termination Date and whether or not caused by death,
disability or change of control of the Company.
Article 3
Deferral Election
3.1 Initial Election. Commencing as of the Effective Date the Director
shall make an initial deferral election under this Agreement by filing with
the Company a signed Election Form within thirty (30) days after the date of
this Agreement. The Election Form shall set forth the amount of Fees to be
deferred (hereinafter the "Deferred Fees"), up to a maximum deferral of Ten
Thousand Dollars ($10,000.00) per Fiscal Year. The maximum deferral allowed
shall increase by four percent (4%) for each subsequent Fiscal Year. The
Deferred Fees shall be credited to the Director's Deferred Compensation
Account as of the last day of the month in which the Deferred Fees would have
otherwise been paid to the Director. The Election Form shall be effective to
defer only Fees earned after the date the Election Form is received by the
Company.
3.2 Election Changes
3.2.1 Generally. The Director may modify the amount of Fees to be deferred
by filing a subsequent signed Election Form with the Company. The modified
deferral shall not be effective until the Fiscal Year following the Fiscal
Year in which the subsequent Election Form is received by the Company.
3.2.2 Hardship. If an unforeseeable financial emergency arising from or
caused by the death of a family member, divorce, sickness, injury,
catastrophe, significant loss of annual income or similar event outside the
control of the Director occurs, the Director, by written instructions to the
Company may immediately reduce or cease future deferrals under this
Agreement.
Article 4
Deferred Compensation
4.1 Deferred Compensation Amount. In addition to the deferral election set
forth in Article 3, commencing as of the Effective Date, the Company shall
credit to the Deferred Compensation Account established for the Director, as
deferred compensation, an amount equal to Five Thousand Dollars ($5,000.00)
per Fiscal Year, increasing four percent (4%) for each subsequent Fiscal
Year, such amounts (hereinafter the "Deferred Compensation Amount") to be
credited to the Deferred Compensation Account for each Fiscal Year that the
Director serves on the Board of Directors of the Company. From the Effective
Date through December 31, 1995, a pro rata portion of such Deferred
Compensation Amount shall be credited to the Director's Deferred Compensation
Account on the last day of each month of the Company's Fiscal Year.
Commencing January 1, 1996, such Deferred Compensation Amount shall be
credited to the Director's Deferred Compensation Account on the last day of
the Company's Fiscal Year.
4.2 Additions to Deferred Compensation Accounts. The Company hereby agrees
that it will credit the Director's Deferred Compensation Account quarterly
with additions thereon ("Additions") based on the balance in the Director's
Deferred Compensation Account as of the last day of the prior Fiscal Year of
the Company. Additions to the Deferred Compensation Account shall accrue
commencing on the date the Deferred Compensation Account first has a positive
balance and shall continue up to the date the termination benefits are
completed hereunder. Additions from the Commencement Date through December
31, 1995 shall be calculated at the rate of ten percent (10%) per annum,
compounded monthly. Commencing January 1, 1996, Additions shall be calculated
at a rate per annum equivalent to the yield on one (1) year United States
Treasury Bills as of the last day of the Company's Fiscal Year (the "Treasury
Bill Rate"), adjusted as hereinafter set forth by the Company's "Return on
Equity", compounded annually at the end of each Fiscal Year. If the Company's
"Return on Equity" for the prior Fiscal Year exceeds or is less than the
Treasury Bill Rate as of the last day of such Fiscal Year, Additions shall be
calculated at a rate per annum equivalent to the Treasury Bill Rate adjusted
(positively, if the "Return on Equity" exceeds the Treasury Bill Rate and
negatively, if the "Return on Equity" is less than the Treasury Bill Rate) by
Twenty-five percent (25%) of the difference between the Treasury Bill Rate
and the "Return on Equity". For example, if the one (1) year Treasury Bill
Rate on December 31, 1995 six percent (6%) and the Company's "Return on
Equity" for its Fiscal Year ending December 3 1, 1995 is ten percent (10%),
Additions shall be calculated at the rate of seven percent (7%) from January
1, 1996 through December 31, 1996. Such Treasury Bill Rate shall initially be
established on December 3t, 1995 at the yield quoted in the Wall Street
Journal or, in the absence of quotation therein, as quoted in a similar
publication. The Treasury Bill Rate shall be determined by the same means and
shall be adjusted one (1) year after the date the Treasury Bill Rate is first
established hereunder (or on the first business day thereafter), and annually
thereafter. The "Return on Equity" for each Fiscal Year is defined as the
Company's "net income after taxes" divided by the Company's "stock-holders
equity" for such Fiscal Year, as reported in the Company's audited financial
statements of the Company and its consolidated subsidiaries for such Fiscal
Year. Such "Return on Equity" shall initially be established for the Fiscal
Year ending, December 31, 1995 and annually thereafter. The Company's
auditors shall make the determination of the Additions in accordance with the
provisions set forth above and such determination shall be conclusive for all
purposes and upon all parties.
Article 5
Deferred Compensation Account
5.1 Establishing and Crediting. The Company shall establish a Deferred
Compensation Account on its books for the Director, and shall credit and
debit to the Deferred Compensation Account the following amounts:
5. 1. 1 Deferrals. The Deferred Fees credited to the Director pursuant to
Section 3.1.
5.1.2 Deferred Compensation. The Deferred Compensation Amounts credited
to the Director pursuant to Section 4.1.
5. 1.3 Additions. The Additions credited to the Director pursuant to
Section 4.2.
5.1.4 Distributions. The Company shall debit from the Deferred Compensation
Account any distributions to the Director or his beneficiary hereunder.
5.2 Statement of Accounts. The Company shall provide to the Director,
within one hundred twenty (120) days after the end of the Company's Fiscal
Year, a statement setting forth the Deferred Compensation Account balance.
5.3 Accounting Device Only. The Deferred Compensation Account is solely a
device for measuring amounts to be paid under this Agreement. The existence
of such book entries and the Deferred Compensation Account shall not create
and shall not be deemed to create a trust of any kind, or a fiduciary
relationship between the Company and the Director, his designated
beneficiary, or other beneficiaries under this Agreement.
Article 6
Distribution Benefits
6.1 Termination Benefit. Upon the Director's Termination of Service, the
Company shall pay as a benefit to the Director the Director's Accrued Benefit
in his Deferred Compensation Account as of the date of Termination of
Service, payable in equal monthly installments for a period of one hundred
twenty (120) months. Such payments shall commence on the first day of the
first month following the Director's Termination of Service. The Company
shall continue to credit Additions at the annual rate determined pursuant to
Section 4.2 on the remaining Deferred Compensation Account balance during any
applicable installment period. The Director may make one (1) election to have
the Accrued Benefit in his Deferred Compensation Account paid in one lump sum
rather than in monthly installments. In the event of such election by the
Director, the Company shall immediately cease distributing the benefits
otherwise provided and shall instead, distribute the lump sum payment to the
Director on the first day of the first month following the Director's filing
of an effective written election to accelerate benefits. The distribution of
the Director's Deferred Compensation Account balance shall be made in cash.
6.2 Hardship Distribution. Upon the Company's determination (following
petition by the Director) that the Director has suffered an unforeseeable
financial emergency as described in Section 3.2.2, the Company shall
distribute to the Director on the first day of the first month following the
determination of hardship all or a portion of the Deferred Compensation
Account balance as determined by the Company, but in no event shall the
distribution be in excess of that necessary to relieve the financial
hardship. The Director shall continue to participate in the deferred
compensation plan set forth in this Agreement, and the only adjustment shall
be that the Accrued Benefit in the Director's Deferred Compensation Account
shall be reduced by the amount so distributed to the Director.
Article 7
Death Benefits
7.1 Death Prior to Commencement of Retirement Benefits. In the event of the
Director's death while in the employment of the Company and prior to
commencement of termination benefits, the Company shall pay the Accrued
Benefit in the Director's Deferred Compensation Account as of the date of his
death in equal monthly installments for a period of one hundred twenty (120)
months to the Director's designated beneficiary, in accordance with the last
such designation received by the Company from the Director prior to his
death. Such payments shall commence on the first day of the first month
following the Director's death. The Company shall continue to credit
Additions at the annual rate determined pursuant to Section 4.2 on the
remaining Deferred Compensation Account balance during any applicable
installment period. The beneficiary may make one (1) election to have the
Accrued Benefit in the Director's Deferred Compensation Account paid in one
lump sum rather than in monthly payments. The election referred to in the
preceding, sentence shall be made in writing within~ ninety (90) days from
the later of the Director's death or the appointment of the personal
representative of the Director's estate if the estate is the beneficiary and
shall be irrevocable. In the event of such election by the beneficiary, the
Company shall immediately cease distributing the benefits otherwise provided
and shall instead, distribute the lump sum payment to the beneficiary on the
first day of the first month following the beneficiary's filing of an
effective written election to accelerate benefits. The distribution of the
Director's Accrued Benefit shall be made in cash.
7.2 Death After Commencement of Benefits. In the event of the Director's
death after the commencement of termination benefits but prior to the
completion of all such payments due and owing hereunder, the Company shall
continue to make such payments, in equal monthly installments, over the
remainder of the period specified in Section 6.1 hereof that would have been
applicable to the Director had he survived. Such continuing payments shall be
made to the Director's designated beneficiary, in accordance with the last
such designation received by the Company from the Director prior to his
death. Such continuing payments shall commence on the first day of first
month following the Director's death. The Company shall continue to credit
Additions at the annual rate determined pursuant to Section 4.2 on the
remaining Deferred Compensation Account balance during any applicable
installment period. The beneficiary may make one (1) election to have the
Accrued Benefit in the Director's Deferred Compensation Account paid in one
lump sum rather than in monthly payments. The election referred to in the
preceding sentence shall be made in writing within ninety (90) days from the
later of the Director's death or the appointment of the personal
representative of the Director's estate if the estate is the beneficiary and
shall be irrevocable. In the event of such election by the beneficiary, the
Company shall immediately cease distributing the benefits otherwise provided
and shall instead, distribute the lump sum payment to the beneficiary on the
first day of the first month following the beneficiary's filing of an
effective written election to accelerate benefits.
Article 8
Beneficiaries
8.1 Beneficiary Designations. The Director shall designate a beneficiary by
filing a written designation with the Company. The Director may revoke or
modify the designation at any time by filing a new designation. However,
designations will only be effective if signed by the Director and accepted by
the Company during the Director's lifetime. The Director's beneficiary
designation shall be deemed automatically revoked if the beneficiary
predeceases the Director, or if the Director names a spouse as beneficiary
and the marriage is subsequently dissolved. If the Director dies without a
valid beneficiary designation, all payments shall be made to the Director's
estate.
8.2 Facility of Payment. If a benefit is payable to a minor, to a person
declared incompetent, or to a person incapable of handling the disposition of
his or her property, the Company may pay such benefit to the guardian, legal
representative or person having the care or custody of such minor,
incompetent person or incapable person. The Company may require proof of
incompetency, minority or guardianship as it may deem appropriate prior to
distribution of the benefit. Such distribution shall completely discharge the
Company from all liability with respect to such benefit.
8.3 Facility of Election. Any election permitted to be made hereunder by a
Director or beneficiary who is a minor, a person declared incompetent, or a
person incapable of handling the disposition of his or her property, can be
made by the guardian, legal representative or person having the care or
custody of such minor, incompetent person or incapable person. The Company
may require proof of incompetency, minority or guardianship as it may deem
appropriate prior to acceptance of such election. Any distribution made
pursuant to such election shall completely discharge the Company from all
liability with respect to such benefit.
Article 9
General Limitations
9.1 Termination for Cause. Notwithstanding any provision of this Agreement
to the contrary, the Company shall not pay any benefit under this Agreement
that is attributable to the Company's contributions pursuant to Section 4. 1
or any Additions to the Deferred Compensation Account pursuant to Section 4.2
if the Company terminates the Director's service as a director for personal
dishonesty, willful misconduct, breach of fiduciary duty involving personal
profit, intentional failure to perform stated duties,willful violation of any
law, rule, or regulation (other than traffic violations or similar offenses)
which negatively impacts the company. This agreement will in no way eliminate
the company's right to terminate the Director's participation on the Board at
any time.
Article 10
Claims and Review Procedures
10.1 Claims Procedure. A Director or his or her beneficiary who believes
that he or she is being denied a benefit to which he or she is entitled to
under this Agreement (hereinafter referred to as a "Claimant") may file a
written request for such benefits with the Company, setting forth the
Claimant's claim. Upon receipt of a claim, the Company shall notify the
Claimant in writing, within ninety (90) days of its receipt of such claim, of
Claimant's eligibility or noneligibility for benefits under the Agreement. If
the Company determines that the Claimant is not eligible for benefits or full
benefits, the notice shall set forth (1) the specific reasons for such
denial, (2) a specific reference to the provisions of the Agreement on which
the denial is based, (3) a description of any additional information or
material necessary for the claimant to perfect his or her claim, and a
description of why it is needed, and (4) an explanation of the Agreement's
claims review procedure and other appropriate information as to the steps to
be taken if the Claimant wishes to have the claim reviewed. If the Company
determines that there are special circumstances requiring additional time to
make a decision, the Company shall notify the Claimant of the special
circumstances and the date by which a decision is expected to be made, and
may extend the time for up to an additional ninety (90) day period.
10.2 Review Procedure. If the Claimant is determined by the Company not to
be eligible for benefits, or if the Claimant believes that he or she is
entitled to greater or different benefits, the Claimant shall have the
opportunity to have such claim reviewed by the Company by filing a petition
for review with the Company within sixty (60) days after receipt of the
notice issued by the Company. Said petition shall state the specific reasons
which the Claimant believes entitle him or her to benefits or to greater or
different benefits. Within sixty (60) days after receipt by the Company of
the petition, the Company shall afford the Claimant (and counsel, if any) an
opportunity to present his or her position to the Company orally or in
writing, and the Claimant (or counsel) shall have the right to review the
pertinent documents. The Company shall notify the Claimant of its decision in
writing within the sixty (60) day period, stating specifically the basis of
its decision, written in a manner calculated to be understood by the Claimant
and the specific provisions of the Agreement on which the decision is based.
If, because of the need for a hearing, the sixty (60) day period is not
sufficient, the decision may be deferred for up to another sixty (60) day
period at the election of the Company, but notice of this deferral shall be
given to the Claimant.
10.3 Administration of Plan. The Board of Directors of the Company shall
have the sole power and authority on behalf of the Company to construe,
interpret and administer the plan set forth in this Agreement, including but
not limited to, the initial processing of claims and review procedures,
hardship determinations, and any other decisions required to be made
hereunder by the Company.
10.4 Remedies. In the event the Claimant disagrees with or disputes the
decision of the Company after the claims and review procedure set forth
above, the Claimant's only recourse shall be to bring an Action in the manner
set forth in Section 13.7. In the event of any Action between the Company and
the Claimant with respect to the subject matter hereof, the prevailing party
shall be entitled to recover from the other party all costs and expenses
incurred in relation to such Action, including, without limitation,
reasonable attorneys' fees and court costs, both trial and appellate.
Article 11
Amendments and Termination
The Company, in its sole discretion, may amend or terminate this Agreement
at any time prior to the Director's Termination of Service by written notice
to the Director. In no event shall such amendment or termination adversely
affect the Director's right to receive his Deferred Compensation Account
balance attributable to the Director's Deferred Fees, Deferred Compensation
Amounts, and Additions credited on such amounts prior to such amendment or
termination.
Article 12
Unfunded Agreement
12.1 No Trust Created. Nothing contained in this Agreement, and no action
taken pursuant to its provisions by either parry hereto shall create, or be
construed to create, a trust of any kind, or a fiduciary relationship between
the Company and the Director, his designated beneficiary, other beneficiaries
of the Director, or any other person.
12.2 Unsecured General Creditor Status of Director. The payments to the
Director or his designated beneficiary or any other beneficiary hereunder
shall be made from assets which shall continue, for all purposes, to be a
part of the general, unrestricted assets of the Company; no person shall have
any interest in any such assets by virtue of the provisions of this
Agreement. The Company's obligation hereunder shall be an unfunded and
unsecured promise to pay money in the future. To the extent that any person
acquires a right to receive payments from the Company under the provisions
hereof, such right shall be no greater than the right of any unsecured
general creditor of the Company; no such person shall have nor require any
legal or equitable right, interest or claim in or to any property or assets
of the Company.
12.3 Insurance. In the event that, in its discretion, the Company purchases
an insurance policy or policies insuring the life of the Director (or any
other property), to allow the Company to recover the cost of providing
benefits, in whole or in part, hereunder, neither the Director, his
designated beneficiary nor any other beneficiary shall have any rights
whatsoever therein or in the proceeds therefrom. The Company shall be the
sole owner and beneficiary of any such insurance policy and shall possess and
may exercise all incidents of ownership therein. No such policy, policies or
other property shall be held in any trust for the Director or any other
person nor as collateral security for any obligation of the Company
hereunder.
Article 13
Miscellaneous
13.1 Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the Company and its successors and assigns, and the Director and
his beneficiaries, survivors, executors, administrators and successors.
13.2 No Guaranty of Employment. This Agreement is not an employment policy
or contract. It does not give the Director the right to remain a director of
the Company in his present capacity, or in any capacity, nor does it
interfere with the Company's right to discharge the Director. It also does
not require the Director to remain a director nor interfere with the
Director's right to terminate services at any time. It is expressly
understood by the parties hereto that this Agreement relates to the payment
of deferred compensation for the Director's services, payable after
Termination of Services with the Company, and is not intended to be an
employment contract.
13.3 Benefits Not Transferable. Neither the Director, his designated
beneficiary, nor any other beneficiary under this Agreement shall have any
power or right to transfer, assign, anticipate, hypothecate or otherwise
encumber any part or all of the amounts payable hereunder. No such amounts
shall be subject to seizure by any creditor of any such beneficiary, by a
proceeding at law or in equity, nor shall such amounts be transferable by
operation of law in the event of bankruptcy, insolvency or death of the
Director, his designated beneficiary, or any other beneficiary hereunder.
Any such attempted assignment or transfer shall be void.
13.4 Tax Withholding. The payments and benefits payable to Director
hereunder may be compensation and as such may be included 'in either the
Director's W-2 earnings statement or 1099 statement. The Company shall
withhold any federal (including FICA and FUTA), state or local taxes that are
required to be withheld from the benefits provided under this Agreement.
13.5 Notices. Any notice or election required or permitted to be given
hereunder pursuant to Sections 3.1, 3.2.1, and 8.1 shall be in writing and
shall be deemed filed:
13.5.1 on the date it is personally delivered to the elected Secretary of
the Company; or
13.5.2 three (3) business days after it is sent by registered or
certified mail, addressed to such elected Secretary at the following address,
or such other address as shall be designated by the Company in writing:
Pointe Federal Savings Bank
21845 Power Line Road
Boca Raton, Florida 33433
All other notices or elections required or permitted to be given
hereunder, including but not limited to, those set forth in Sections 3.2.2,
6.1, 6.2, 7.1, 7.2, 10.1 and 10.2 shall be in writing and shall be deemed
filed:
13.5.3 on the date it is personally delivered to the elected Chairman of
the Board of Directors of the Company; or
13.5.4 three (3) business days after it is sent by registered or
certified mail, addressed to such elected Chairman of the Board of Directors
at the following address, or such other address as shall be designated by the
Company in writing:
Pointe Federal Savings Bank
21845 Power Line Road
Boca Raton, Florida 33433
13.6 Entire Agreement. This Agreement shall be deemed to express, embody
and supersede all previous understandings, agreements and commitments,
whether written or oral, between the parties hereto with respect to the
subject matter hereof and to fully and finally set forth the entire agreement
between the parties hereto.
13.7 Applicable Law. The Agreement and all rights hereunder shall be
governed by the laws of Florida, except to the extent preempted by the laws
of the United States of America. In any action or proceeding arising out of
or relating to this Agreement (an "Action"), each of the parties hereby
irrevocably submits to the non-exclusive jurisdiction of any federal or state
court sitting in Palm Beach County, Florida, and further agrees that any
Action may be heard and determined in such federal court or in such state
court. Each party hereby irrevocably waives, to the fullest extent it may
effectively do so, the defense of an inconvenient forum to the maintenance of
any Action in Palm Beach County, Florida.
13.8 WAIVER OF JURY TRIAL. THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE THE RIGHT ANY OF THEM MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS AGREEMENT AND ANY DOCUMENT CONTEMPLATED TO BE EXECUTED
IN CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY. THIS
PROVISION IS A MATERIAL INDUCEMENT FOR THE PARTIES' ACCEPTANCE OF THIS
AGREEMENT.
IN WITNESS WHEREOF, the Director and a duly authorized Company officer
have signed this Agreement.
DIRECTOR: COMPANY:
___________________________ POINTE FEDERAL SAVINGS BANK
(Signature) By
TITLE
EXHIBIT A
TO
DEFERRED FEE AGREEMENT
Deferral Election
Under my Deferred Fee Agreement with the Company, I elect pursuant to Section
3.1 to defer $_of my Fees per month (an annual amount of $__).
I understand that commencing on the Effective Date, the maximum annual amount
of deferral is Ten Thousand Dollars ($10,000.00) (increased by 4% per year)
until Termination of Service as defined in Section 2.1.8 of the Deferred Fee
Agreement.
Beneficiary Designation
I designate the following as beneficiary of benefits under the Deferred Fee
Agreement payable following my death:
Primary:_________________________________
Contingent:______________________________
Note: To name a trust as beneficiary, please provide the name of the
trustee and the exact date of the trust agreement.
I understand that I may change these beneficiary designations by filing a new
written designation with the Company. I further understand that the
resignations will be automatically revoked if the beneficiary predeceases me.
or, if I have named my spouse as beneficiary, in the event of the dissolution
of our marriage.
Signature _____________________________
Date __________________________________
Accepted by the Company this ___day of ________ 199___.
By ____________________________________
Title _________________________________
mssec\pointe\deferfe5.kas
LEASE
ONE CENTRUM PLAZA
PEMBROKE PINES, FLORIDA
TENANT
FLAMINGO BANK
SPACE SUITE 101
SQUARE FOOTAGE 3,865
COMMENCEMENT DATE June 1, 1987
OFFICE LEASE
INDEX
<TABLE>
<CAPTION>
SUBJECT ITEM # PAGE
<S> <C> <C>
ADDENDUM 10
ADDITIONAL RENT 4 1
ASSIGNMENT 23 6
ATTORNEY'S FEES 26 7
ATTORNMENT 22 6
BASE RENT 3 1
BROKERAGE 45 9
CHARGES AS RENT 14 4
CONDITION OF PREMISES ON TERMINATION OF
LEASE AND HOLDING OVER 33 8
CONSTRUCTION 39 8
COST OF LIVING INCREASE 5 3
DAMAGE OR DESTRUCTION 27 7
DEFAULT 21 5
DELEGATION 48 9
EFFECTIVE DATE 43 8
EMINENT DOMAIN 28 7
ENTIRE AGREEMENT 44 8
ESTOPPEL STATEMENT 18 4
EXHIBIT A 14
EXHIBIT B 15
FORCE MAJEURE 47 9
GOVERNMENTAL REQUIREMENTS 12 4
HOLD HARMLESS 25 6
IMPROVEMENTS 9 3
INSURANCE 20 5
INSURANCE PREMIUMS 10 4
LANDLORD CONTROLLED AREAS 32 7
LEASED PREMISES 1 1
LIEN FOR PAYMENT OF RENT 29 7
LIENS 16 4
MISCELLANEOUS 42 8
NO RECORDING 46 9
NOTICE 31 7
OCCUPANCY TAX 34 8
OPERATING EXPENSES 4(b) 1
OPTION TO RENEW 11
PARKING 17 4
QUIET ENJOYMENT 8 3
RELOCATION OF TENANT 37 8
REPAIR OF LEASED PREMISES 15 4
RIGHT OF ENTRY 30 7
RULES AND REGULATIONS 11 4
RULES AND REGULATIONS 1-21 12
RULES AND REGULATIONS 22-23 13
SECURITY DEPOSIT 6 3
SERVICES 13 4
SIGNS 35 8
SUBORDINATION 19 4
SUCCESSORS AND ASSIGNS 24 6
TAXES 4(c) 2
TENANT'S PROPORTIONATE SHARE 4(a) 1
TERM 2 1
TIME IS OF THE ESSENCE 40 8
TRIAL BY JURY 38 8
USE 7 3
VALIDITY OF PROVISION 38 8
WAIVER OF VENUE 41 8
</TABLE>
OFFICE LEASE AGREEMENT
THIS OFFICE LEASE AGREEMENT ("Lease") made and entered into this 8 day of
October, 1986 by and between CENTRUM PEMBROKE, INC. ("Landlord"), whose address
for purposes hereof shall be 2100 PONCE DE LEON BLVD., CORAL GABLES, FLORIDA
33134 and ("Tenant"), whose address for purposes hereof until the commencement
of the term of this Lease shall be FLAMINGO BANK.
WITNESSETH:
1. LEASES PREMISES. Subject to and upon the terms, provisions, covenants and
conditions hereinafter set forth, Landlord does hereby lease, demise and let to
Tenant and Tenant does hereby lease demise and let from Landlord those certain
premises (the "Premises") in the building know as One Centrum Plaza located at 1
Southwest Flamingo Drive, Pembroke Pines, Florida (said building together with
the adjoining grounds and parking facilities owned by Landlord are collectively
referred to as the "Building") such Premises being more particularly described
on the floor plan of the Premises attached hereto as Exhibit A and made a part
hereof, identified by the signature of initials of Landlord and Tenant. The term
"Rentable Area" as used herein shall refer to (1) in the case of a single
tenancy floor, all space measured from the inside surface of the outer glass of
the Building to the inside surface to the opposite outer glass, excluding only
the areas within the outside glass used for building stairs, fire towers,
elevator shafts, flues, vents, pipe shafts and vertical ducts, but including any
such areas which are for the specific use of the particular tenant such as
special stairs or elevators, and (11) in the case of a multi-tenancy floor, all
space within the inside surface of the outer glass enclosing tenant occupied
portions of the floor and measured to the midpoint of the walls separating such
portions from areas leased by or held for lease to other tenants or from areas
devoted to corridors. elevator foyers, rest rooms and other similar facilities
for the use of all tenants on the particular floor ("Common Areas"), but
including a proportionate part of the Common Areas located on such floor. No
deductions from Rentable Areas are made for columns or projection necessary to
the Building. The Rentable Areas for the Premises and for the Building have been
calculated on the basis of the foregoing definition and are hereby stipulated
for all purposes hereof to be 3,885 square feet as to the Premises, whether the
same should be more or less as a result of variations resulting from actual
construction and completion of the Premises for occupancy, and 48,000 square
feet as to the Building whether same should be more or less as a result of
variations resulting from actual construction of the Building. See Page 1-A
2. TERM. This lease shall be for the term of ten (10) years commencing on (1)
and terminating at midnight on ten years later (2) (the "Lease term"), unless
sooner terminated or extended as provided herein. If Landlord is unable to give
possession of the Premises on the aforesaid date of commencement, for any reason
whatsoever, including, without limitation, the holding over of prior tenants or
the failure of Landlord to complete Landlord's Work (defined herein), an
abatement or diminution of the rent to be paid hereunder shall be allowed Tenant
under such circumstances until possession is given to Tenant, but nothing herein
shall operate to extend the Lease Term beyond the termination date set forth
above and said abatement in rent shall operate to extend the Lease Term beyond
the termination date set forth above and said abatement in rent shall be the
full extent of Landlord's liability to Tenant for any loss or damage to Tenant
on account of said delay in obtaining possession. There shall be no delay in the
commencement of the Lease Term and/or payment of rent where Tenant fails to
occupy the Premises when same are ready for occupancy, or where Tenant causes a
delay in preparing the Premises for occupancy. For purposes of this Lease, the
Premises shall be deemed completed and ready for occupancy by Tenant, the Lease
Term shall be deemed to have commenced and rent shall begin to accrue when
Landlord notifies Tenant that the work required of Landlord ("Landlord's Work")
as set forth in Exhibit B, if any, has been substantially completed. The taking
of possession of the Premises by Tenant shall be conclusive evidence that the
Premises were in good and satisfactory condition when possession was so taken
and that the Landlord's work has been complete as agreed. If Tenant shall occupy
the Premises prior to the beginning of the Lease Term, all provisions of this
Lease shall be in full force and effect commencing upon such occupancy, and rent
for such period shall be paid by Tenant at the same rate and upon the same terms
as set forth in this Lease. Tenant shall not enter or commence occupancy of the
Premises without Landlord's prior written consent. This Lease does not grant any
right to light or air over or about the Premises or the Building.
3. BASE RENT. Tenant agrees to pay Landlord a total base rent ("Total Base
Rent") of Fifty Eight Thousand Two Hundred Seventy Five and .00/100 ($58,275.00)
payable in equal monthly installments ("Monthly Base Rent") of Four Thousand
Eight Hundred Fifty Six and .25/100 ($4,856.25) per month without any offset or
deduction whatsoever. Monthly Base Rent shall be payable in advance on the first
day of each month during the term of this Lease, in lawful money of the United
States of America, and shall be made at the address of Landlord set forth above
or elsewhere as designated by Landlord's written notice. If the Lease Term shall
commence on any day other than the first day of a month, Tenant shall pay
Landlord, on said commencement date, rent as provided for herein for such
commencement month on a prorata basis calculated based on the actual number of
days in the commencement month, and the Monthly Base Rent paid by Tenant, if
any, upon execution of this Lease shall be credited to the Monthly Base Rent due
for the first full calendar month of the Lease term. Rent for any such partial
month of occupancy at the end of the term of this Lease will be prorated to be
based on the actual number of days in the partial month. In addition to Monthly
Base Rent, Tenant shall pay Landlord in advance on the first day of each month,
a sum equal to any sales tax, tax on rentals, and any other charges, taxes
and/or impositions now in existence or hereafter imposed in connection with
renting the Premises or upon the amount of rent collected therefor. Said amounts
shall be treated and collectible as rent. Nothing herein shall be taken to
require Tenant to pay any part of any Federal or State taxes imposed upon the
income of Landlord. Tenant shall be required to pay Landlord interest on any
rent due that remains unpaid for five (5) days after its due date. Said interest
will be computed from the due date at the maximum rate allowed by law. The Total
Base Rent and Monthly Base Rent due from Tenant shall be adjusted as provided
elsewhere in this Lease.
4. ADDITIONAL RENT. In addition to the Total Base Rent and Monthly Base Rent,
Tenant shall pay to Landlord as "Additional Rent", Tenant's Proportionate Share
of Operating Expenses and Taxes. As used herein the term:
(A) "Tenant's Proportionate Share" shall mean the percentage which the
Rentable Area attributable to Tenant bears to the total Rentable Area contained
in the Building.
(B) "Operating Expenses" shall mean all expenses, costs and disbursements of
every kind and nature which Landlord shall pay or become obligated to pay
because of or in connection with the ownership, maintenance, repair and/or
operation of the Building computed on the accrual basis, but shall not include
the cost of individual tenant improvements, management costs associated with
leasing activities, or the replacement of capital investment items and new
capital improvements unless such items and/or improvements result in the
operating efficiency of the Building being increased, in which latter event the
cost shall be spread over the
(1) The date the tenant opens for business.
(2) Not with standing the aforementioned this lease shall terminate No Later
than September 30, 1996.
As part of the leasing of the above square footage, tenant shall be provided
full use of the "Drive In" as outlined in green on Exhibit "A" (attached). This
shall be under the same terms and conditions as set forth in the lease herein,
except no rent or additional charges shall apply. There shall be no improvement
allowance provided, other than that of Article 9 (iv), page 3 - A of $52,500.00
period necessary to recover the cost of such improvements from the increased
efficiency. By way of explanation and clarification, but not by way of
limitation, Operating Expenses will include the following:
(1) All expenses incurred by Landlord or Landlord's agent, which shall be
directly related to employment of personnel, including amounts incurred for
wages, salaries and other compensation for services, payroll, social security,
unemployment and similar taxes, worker's compensation insurance, disability
benefits, pensions, hospitalization, retirement plans and group insurance,
uniforms and working clothes and the cleaning thereof, and expense imposed on
Landlord or Landlord's agents pursuant to any collective bargaining agreement
for the services of employees of Landlord or Landlord's agents in connection
with the operation, repair, maintenance, cleaning, management and protection of
the Building and its mechanical systems including, without limitation, day and
night supervisors, if any, property managers, accountants, bookkeepers,
janitors, carpenters, engineers, mechanics, electricians and plumbers and
personnel engaged in supervision of any of the persons mentioned above; provided
that, if any such employee is also employed on other property of Landlord, such
be suitably prorated among the Building and other such properties.
(11) The cost of services, utilities, materials and supplies furnished or
used in the operation, repair, maintenance, cleaning, management and protection
of the Building.
(111) The cost of replacements for tools and other similar equipment used in
the operation, repair, maintenance, cleaning and protection of the Building,
provided that, in the case of any such equipment used jointly on other property
of Landlord, such costs shall be suitably prorated among the Building and such
other properties.
(iv) Where the Building is managed by Landlord or an affiliate of Landlord,
a sum equal to five percent (5%) of gross annual income, whether or not actually
paid or where otherwise managed, the amounts accrued for management, together
with amounts accrued for legal and other professional fees relating to the
Building, but excluding such fees and commissions paid in connection with
services rendered for securing or renewing leases and for matters not related to
the normal administration and operation of the Building.
(v) Premiums for insurance against damage or loss to the Building from such
hazards as Landlord deems appropriate, in Landlord's sole discretion, including,
but not by way of limitation, insurance covering loss of rent attributable to
any such hazards, and comprehensive broad form liability an property damage
insurance.
(vi) If, during the Term of this Lease, Landlord shall make a capital
expenditure for an item designed to increase the operating efficiency of the
Building, the total cost of which is not properly includable in Operating
Expenses for the calendar year in which it was made, there shall nevertheless be
included in such Operation Expenses for the calendar year in which it was made
and in Operating Expenses for each succeeding calendar year during the useful
life of the capital expenditure the annual charge-off of such capital
expenditure. The annual charge-off shall be determined by dividing the original
capital expenditure plus an interest factor, reasonably determined by Landlord
as being the interest rate then being charged for long-term mortgages by
institutional lenders on like properties within the locality in which the
Building is located, by the number of years of useful life of the capital
expenditure. The useful life shall be determined reasonably by Landlord in
accordance with generally accepted accounting principals.
(vii) Costs for electricity, water and sewer use charges, and other
utilities supplied to the Building and not paid for directly by tenants.
(viii) Betterment assessments provided the same are apportioned equally over
the longest period permitted by law.
(ix) Amounts paid to independent contractors for services, materials and
supplies furnished for the operation, repair, maintenance, cleaning and
protection of the Building.
(C) "Taxes" shall mean all real estate and personal property taxes,
attributable in any manner to the Building, the personal property contained
therein, other than personal property owned by Tenant the land on which the
Building is located or any part thereof, or any use thereof, or any facility
located therein or thereon or used in conjunction therewith, taxes not included
in the term taxes as used herein shall be any inheritance, estate succession,
transfer or gift taxes imposed upon Landlord or any income taxes specifically
payable by Landlord as a separate tax paying entity without regard to Landlord's
income source as arising from or out of the Building and/or the land on which it
is located. Furthermore, the term Taxes as used herein shall not include any
taxes which the tenants of the Building are required to pay in full to Landlord.
Nothing set forth above shall in any way be construed as a representation by
Landlord or to require Landlord to perform any janitorial or other services of
any kind except as expressly set forth elsewhere in this Lease. Landlord shall
notify Tenant within forty five (45) days of the end of each calendar year
during the Lease Term of the amount which Landlord estimates will be the amount
of Tenant' Proportionate Share of Operating Expenses and Taxes for the
succeeding calendar year and Tenant shall pay such sum to Landlord in equal
monthly installments, during the succeeding calendar year payable in advance on
the first day of each month. Within ninety (90) days following the end of each
calendar year during the term hereof, Landlord shall submit to Tenant a
statement showing the actual amount of Additional Rent which should have been
paid by Tenant for the past calendar year, the amount thereof actually paid by
Tenant and the amount of the resulting balance due thereon, or overpayment
thereof, as the case may be. Said statement shall be final and conclusive as to
Tenant and its successors and assigns as to the matters set forth therein. For a
period of thirty (30) days after receipt by Tenant of said statement, Tenant
shall have the right in person to inspect Landlord?s books and records, at
Landlord's office during normal business hours, after four (4) days prior
written notice, showing the Operating Expenses and Taxes for the Building for
the calendar year covered by said statement. Any balance shown to be due
pursuant to said statement shall be paid by Tenant to Landlord within thirty
(30) days following Tenant's receipt thereof and any overpayment shall be
immediately credited against Tenant's next due payment of Additional Rent or, if
by reason of any termination of this Lease no such future obligation exists,
refunded to Tenant provided that Tenant has not been in default of any of the
terms, covenants and conditions of this Lease. Anything herein to the contrary
notwithstanding. Tenant shall not delay or withhold payment of any balance shown
to be due pursuant to the statement rendered by Landlord because of any
objection which Tenant may raise with respect thereto. The amount which Landlord
estimates will be Tenant's Additional Rent for the portion of the calendar year
in which the Lease Term commences is $1,375.94 per month, plus sales tax,
payable upon the execution of this Lease and on the first day of each month
after the commencement of the term hereof. In estimation the amount of Operation
Expenses and Taxes for the purposes hereof, Landlord may use any method which
Landlord deems from time to time to be reasonable in Landlord's sole discretion.
Additional Rent due for the final months of this Lease is due and payable even
though it may not be calculated until subsequent to the termination date of the
Lease. Operating Expenses and Taxes for the calendar year during which the Lease
terminates shall be prorated according to that portion of said calendar year
that this Lease was actually in effect. Landlord shall have the right, but not
the obligation, at Landlord's sole discretion, to apply any security deposits,
if any, in full or partial satisfaction of any Additional Rent due for the final
months of this Lease. Nothing herein contained shall be construed to relieve
Tenant, or imply that Tenant is relieved of the liability for or the obligation
to pay any Additional Rent due for the final months of this Lease, nor shall
Landlord be required to first apply said security deposits to such Additional
Rent if Landlord does not so desire in Landlord's sole discretion.
5. COST OF LIVING INCREASE. Commencing with the
first of the Adjustment Months as set forth below and on each of the succeeding
Adjustment Months thereafter, the Monthly Base Rent shall be adjusted as set
forth below. The "Price Index" as used herein shall mean the Consumer Price
Index shown on the U.S. City Average for all urban consumers, unadjusted, all
items, as promulgated by the Bureau of Labor Statistics of the U.S. Department
of Labor, using the year 1967 as a base of 100. The Monthly Base rent shall be
adjusted in accordance with the following provisions:
(A) The Price Index as of the commencement of the term of this Lease shall be
designated the "Base Index";
(B) The Price Index as of the current Adjustment Month shall be designated the
"Comparison Index";
(C) Promptly upon the availability of each Comparison Index, the Monthly Base
Rent shall be adjusted by multiplying the then existing Monthly Base Rent by the
Fraction which has as a numerator the Comparison Index for the current
Adjustment Month and has as a denominator, the Base Index. The product thereof
shall be the new Monthly Base Rent which shall remain as adjusted until the next
succeeding Adjustment Month. No adjustment shall be made if said adjustment
would reduce the Monthly Base Rent. Each adjustment shall be effective and shall
be due and payable as of the first day of the month following each respective
Adjustment Month regardless of when Tenant receives notice of such adjustment.
Tenant shall cover any deficiencies in the Monthly Base Rent already paid upon
the latter of ten (10) days after receipt by Tenant of notice of an adjustment
or the date upon which the next payment of Monthly Base Rent is due. The Total
Base Rent shall be adjusted by adding to the amount of Total Base Rent which
should have been paid through the end of the current Adjustment Month the
product of the number of months remaining in the term of this Lease after the
current Adjustment Month times the newly determined Monthly Base Rent. In the
event that the Price Index hereinabove referred to ceases to incorporate a
significant number of the items as currently set forth therein, or if a
substantial change is made in the method of establishing such Price Index, then
the Price Index shall be adjusted to the figure that would have resulted had no
change occurred in the manner of computing such Price Index. In the event that
such Price Index (or successor or substitute index) is not available, then
Landlord, in Landlord's sole discretion, may use another governmental or
nonpartisan publication evaluating the information theretofore used in
determining the Price Index in lieu of such Price Index. The Adjustment Months
shall be the month of January in each of the following years: 1987, 1988, 19889,
1990, 1991, 1992, 1993, 1994, and 1995
6. SECURITY DEPOSIT. Tenant will deposit with Landlord the sum of $5,000.00
which sum shall be held by Landlord as security for the faithful performance by
Tenant of all terms, covenants, and conditions of this Lease to be kept and
performed by Tenant during the term hereof. If Tenant defaults with respect to
any provision of this Lease, including but not limited to the provisions
relating to the payment of Monthly Base Rent or Additional Rent, Landlord may
(but shall not be required to) use, apply or retain all or any part of this
security deposit for the payment of any Monthly Base Rent or Additional Rent or
any other sum in default, or for the payment of any amount which Landlord may
spend or become obligated to spend by reason of Tenant's default, or to
compensate Landlord for any other loss or damage which Landlord may suffer by
reason of Tenant's default. If any portion of said security deposit is so used
or applied, Tenant shall, within five (5) days after written demand therefor,
deposit cash with Landlord in an amount sufficient to restore the security
deposit to its original amount and Tenant's failure to do so shall be a material
breach of this Lease. Tenant hereby waives any right, by stature or otherwise,
to earn any interest on security deposits or any right to have any security
deposits held in a separate account. Landlord shall not be required to keep any
security deposits separate from its general funds and Landlord may commingle
said security deposits with any other funds of Landlord. Tenant shall not be
entitled to interest on its security deposits. If Tenant shall fully and
faithfully perform every provision of this Lease to be performed by Tenant, the
balance of any security deposits made shall be returned to Tenant (or, at
Landlord's option, to the last assignee of Tenant's interest hereunder) within
sixty (60) days after the expiration of the term of the this Lease.
7. USE. The Tenant will use and occupy the entire Premises for the following use
or purpose and for no other use or purpose and shall not permit any other use of
the Premises or any portion thereof. As a Commercial Bank and such related
services which are typical and usual for such operations, and for no other
purposes. However, Tenant shall be permitted to operate a retail insurance
operation for depositors only, as an ancillary service of the Bank. There will
be no retail real estate brokerage operation other than for the sale of real
estate owned by the Tenant.
8. QUIET ENJOYMENT. Upon payment by Tenant or the rents herein provided, and
upon the observance and performance of all terms, provisions, covenants and
conditions on Tenant's part to be observed and performed, Tenant shall, subject
to all of the terms, provisions, covenants and conditions of this Lease,
peaceably and quietly hold and enjoy the Premises for the term hereof.
9. IMPROVEMENTS. Landlord shall, at Landlord's sole cost and expense, complete
Landlord's Work which shall be of the specifications, materials, design, finish
and color of the standard adopted by Landlord for the Building. Any improvements
and other work done to the Premises which in any manner exceed, change or are in
addition to Landlord's Work shall be referred to as "Tenants's Work" and shall
be constructed by Tenant at Tenant's sole cost and expense. No allowance shall
be made for the omission of any of Landlord's Work except when at the request of
Tenant part of Landlord's Work is omitted and Tenant's Work of a similar nature
and for a similar use is substituted therefor and incorporated into Landlord's
Work, in which case an allowance shall be made by Landlord to Tenant against the
cost of Tenant's Work in an amount equal to Landlord's savings in cost by reason
of such omission from Landlord's Work. Tenant shall pay to Landlord a reasonable
amount as overhead and profit above the cost for Tenant's Work. All of
Landlord's Work and the Tenant's Work shall be completed in accordance with the
Plans, as defined below. Tenant shall pay for Tenant's Work as rent due in
advance of construction, upon demand. Complete architectural and mechanical
plans and specifications ("Plans") shall be prepared by the architect and/or
engineers designated by Landlord. That portion of the Plans which contain
Landlord's Work shall be prepared at Landlord's expense except that any
modifications, changes or additions thereto which modifications, changes or
additions are at the request of Tenant shall be at Tenant's sole cost and
expense. The Plans shall be consistent with the design, construction and
equipment of the Building and in conformity with its standards and shall show
the location and extent of any excess floor loading, all special requirements
for air conditioning, plumbing and electricity and the estimated total
electrical load. The Plans are subject to the written approval of Landlord in
Landlord's sole and unquestionable discretion. All design, construction and
installation shall conform to the requirements of any and all authorities having
jurisdiction thereof. Tenant shall submit all information necessary to prepare
the Plans and any other information necessary to complete Landlord's Work,
except color and finish schedules, to Landlord on or before March 15, 1987. In
the event that Tenant fails to submit such information within said time period,
then Landlord shall have the right to proceed as it deems appropriate in
Landlord's sole discretion. In the event that any work so done by Landlord
thereafter requires changes, then said changes shall be at Tenant's sole cost
and expense. See Page 3-A
Tenant shall contract and pay for the Work and receive an allowance as set forth
below.
(i) All contractors, subcontractors, laborers, suppliers and materialmen shall
be subject to Landlord's written approval prior to their bidding for and/or
entering into any agreements to do any portion of the Work.
(ii) Tenant shall obtain Landlord's written approval to any contracts,
subcontracts or other agreements which are in any way related to the Work or any
portion thereof. All such agreements must require the parties thereto to
indemnify and hold Landlord harmless from and against any and all liens, claims,
causes, damages, losses or costs of any kind including, without limitation,
attorney's fees, incurred in connection with the Work or any portion thereof and
must expressly waive any right to file a lien against the Premises, the Office
Building or any other property owned by Landlord and the parties thereto shall
agree that the sole and exclusive remedy shall be to proceed against Tenant.
(iii) Tenant shall pay all amounts due in connection with the Work as and when
said payments are due.
(iv) Landlord shall reimburse Tenant the sum of $52,500.00 upon completion of
all of the following:
(a) Proof of payment of all contractors, subcontractors, laborers,
suppliers and materialmen in connection with the Work and receipt of releases of
liens from all of the aforesaid persons.
(b) Acceptance by all required authorities of the Work and the issuance of
a permanent certificate of occupancy in connection therewith.
(c) Verification by Landlord's architect that the Work was performed in
compliance with the Plans approved by Landlord.
(d) Tenant has opened for business in the Premises.
(e) Tenant is otherwise in full compliance with all of the terms and
conditions of this Lease.
(v) Landlord agrees to allow Tenant access thru the glass demising wall in
the premises for an entry way, providing: (1) all design and construction is
prepared and installed at Tenants expense: (2) Tenant has requested and received
in writing Landlord's approval, prior to commencing said work: (3) all work is
in keeping with local, state and municipal codes.
10. INSURANCE PREMIUMS. In no event shall Landlord increase the insurance pass
through to Tenant because of the nature of their business. Insurance market
conditions dictated to Landlord shall be passed on to Tenant as additional rent.
11. RULES AND REGULATIONS. Tenant shall comply with all rules and regulations
Landlord may adopt from time to time fro the operation and use of the Building.
The present rules and regulations, which Tenant hereby agrees to comply with,
entitled "Rules and Regulations" are attached hereto. Any future rules and
regulations shall become a part of this Lease, and Tenant hereby agrees to
comply with the same upon delivery of a copy thereof to Tenant, providing the
same do not materially deprive Tenant of its rights established under this
Lease.
12. GOVERNMENTAL REQUIREMENTS. In connection with any and all matters relating
to this Lease and the Building, Tenant shall comply with any and all laws,
statues, ordinances, codes, rules and regulations of any and all federal, state
and local governmental and quasi-governmental officials, bodies, agencies,
boards and other authorities and courts of competent jurisdiction.
13. SERVICES. Landlord will furnish the following services:
(A) Automatically operated elevator service, public stairs as allowed by
appropriate authorities, electrical current for lighting, incidentals, and
normal office use, and water at points of supply designated by Landlord provided
for general use of its tenants at all times and on all days throughout the year.
(B) Heat and air conditioning on Monday through Friday from 8:00 A.M. to 6:00
P.M., except Saturdays, Sundays and those holidays as declared by Landlord, in
Landlord's sole discretion. Landlord shall also, at Tenant's sole cost and
expense to be charged as rent, furnish heat and air conditioning at such other
times as are not set forth above, provided Tenant gives written request to
Landlord before 2:00 P.M. of the business day preceding the extra usage.
Such services shall be provided only as long as Tenant is not in default under
any of the terms, provisions, covenants and conditions of this Lease, which
services shall be subject to interruption caused by repairs, renewals,
improvements, changes to service, alterations, strikes, lockouts, labor
controversies, inability to obtain fuel or power, accidents, breakdowns,
catastrophes, national or local emergencies, acts of God and conditions and
causes beyond the control of Landlord, and upon such happening, no claim for
damages or abatement of rent for failure to furnish any such services shall be
made by Tenant or allowed by Landlord. No electric current shall be used except
that furnished or approved by Landlord, nor shall electric cable or wire be
brought into the Premises or the Building, except upon the written consent and
approval of Landlord. Tenant shall only use office machines and equipment that
operate on the Building's standard electric circuits, but which in no event
shall overload the Building's standard electric circuits from which the Tenant
obtains electric current. Landlord's estimated cost of such excess electric
current consumption or based upon the actual cost thereof if separately metered.
Continued on Page 4-A
14. CHARGES AS RENT. Any reference in this lease to the term "rent" shall be
deemed to include, without limitation, Total Base Rent, Monthly Base Rent and
Additional Rent as each may be adjusted from time to time; and any and all
charges of any kind whatsoever against Tenant for services or for work done on
the Premises by order of Tenant, or otherwise accruing under this Lease, all of
which items shall be included in any lien for rent as allowed by law, this Lease
or otherwise.
15. REPAIR OF LEASED PREMISES. Tenant will, at Tenant's sole cost and expense,
keep the Premises in good repair and tenantable condition during the term hereof
and will replace at Tenant's sole cost and expense, any and all broken glass
caused by tenant in and about the Premises. Tenant will make no alterations,
additions or improvements of any kind in or to the Premises or any part thereof
without the prior written consent of Landlord. Any and all additions, fixtures,
carpets or improvements of any kind, whenever made, except only office furniture
and trade fixtures which shall be readily removable without injury to the
Premises, shall become the sole property of Landlord during the term hereof and
shall remain a part of the Premises at the expiration of this Lease. Landlord
shall have the right at any time and from time to time, to make and build
additions, improvements and alterations to the Building or any part thereof and
make such alterations and repairs to said Building as it may deem wise and
advisable in Landlord's sole discretion without any liability to Tenant
therefor.
16. LIENS. Tenant shall not have any authority to create any liens on the
Building, the Premises or Landlord's interest therein for labor, materials or
any other matters and all persons or entities contracting with or otherwise
doing work for or at the request of Tenant on or about the Premises or the
Building, and all materialmen, contractors, subcontractors, suppliers, mechanics
and laborers are hereby charged with notice that they must look only to Tenant
and to Tenant's interest in the Premises to secure the payment of any amounts
claimed to be due, Tenant shall immediately pay-off, release and discharge, by
bond or otherwise, any and all liens of any kind or character, and will
indemnify Landlord against any and all expenses, costs and charges, including
bond premiums for release of liens and attorneys fees and costs reasonably
incurred in and about the defense of any suit in discharging any liens,
judgments, or encumbrances caused or suffered by Tenant. The expenses, costs and
charges above referred to shall be considered as rent due. Nothing herein shall
be deemed to subject Landlord's interest to any lien of any kind.
17. PARKING. During the term of this Lease, charges for parking are payable as
rent, in advance on the first day of each month throughout the term of this
Lease. In the event of an increase in monthly parking rates, Tenant shall have
the right to cancel any or all of its parking spaces herein leased upon thirty
(30) days written notice to Landlord. Said parking spaces will be in the areas
designated by Landlord. Parking spaces will be unassigned and Landlord shall not
be liable for any damage of any nature whatsoever to, or any theft of
automobiles or other vehicles or the contents thereof, while in or about the
Building Parking areas.
18. ESTOPPEL STATEMENT. Tenant agrees that from time to time, upon not less than
ten (10) days prior request by Landlord, Tenant will deliver to Landlord a
statement in writing certifying (a) that this Lease is unmodified and in full
force and effect (or, if there have been modifications, that the Lease as
modified is in full force and effect and stating the modifications); (b) the
dates to which the rent and other charges have been paid; (c) that Landlord is
not in default under any provisions of this Lease, or, if in default, the nature
thereof in detail; and (d) any other matters requested by Landlord to the extent
same are true and correct.
19. SUBORDINATION. If the Building or any part thereof, is at any time subject
to a mortgage, deed of trust, ground lease or other form of financing or
refinancing, and Tenant has received written notice from the holder
Interior Electrical Usage
Tenant shall install an electrical meter at Tenants' expanse and be billed
separately for the demised premises electrical usage, excluding usage required
for HVAC and the Common Areas.
HVAC ELECTRICAL USAGE
Not withstanding the above, electrical usage for the HVAC and appropriate
charges shall be calculated after Landlord provides a statement by it's
Electrical Engineer (at Landlord's expense) outlining the calculations as to
what the most accurate proportionate share of electrical charges for the demised
premises shall be. This shall not be based solely on the square footage
proportionate share.
OPERATING COST/ELECTRICAL USAGE
Excluding electrical for interior and HVAC, Tenant shall pay all other operating
cost as outlined, herein.
(a) Notwithstanding any other provision contained in the Lease, the following
are applicable:
In the event the Tenant or its successors or assigns shall become insolvent,
bankrupt, or make an assignment for the benefit of creditors, or if its or their
interest hereunder shall be levied upon or sold under execution or other legal
process, or in the event the bank to be operated on the premises is closed, or
is taken over by the Comptroller of the Currency, or other bank supervisory
authority, the Landlord may terminate the Lease only with the concurrence of
said Comptroller or other supervisory authority, and any such authority shall in
any event have the election to either continue or terminate the Lease, provided
that in the event the Lease is terminated, the maximum claim of Landlord for
damages or indemnity for injury resulting from the rejection or abandonment of
the unexpired Lease shall in no event be in an amount exceeding the rent
reserved by the Lease, without acceleration, for the year next succeeding the
date of the surrender of the premises to the Landlord, or the date of re-entry
of the Landlord, whichever first occurs whether before or after the closing of
the bank, plus an amount equal to the unpaid rent accrued, without acceleration,
up to such date.
(b) Upon Tenant's failure to pay an installment of rent due or if the Tenant
shall fail to observe and perform any of the other conditions, agreements, or
provisions of the Lease, it shall be lawful thereupon, after Landlord shall have
notified the Tenant, the Comptroller of the Currency, the Director of FDIC
Division of Bank Supervision, or the respective successors of either, in
writing, of such failure on the part of the Tenant, and the Tenant, Comptroller
of the Currency, the Director of FDIC Division of Bank Supervision, or the
respective successor of either, shall not have rectified such failure within
sixty (60) days after giving of such notice to it, for Landlord to reenter and
repossess said premises, to remove all persons therefrom, and all rights of
Tenant as a tenant shall immediately cease and terminate. The failure on the
part of the Landlord to re-enter or repossess the premises, or to exercise any
of its rights hereunder upon any default, shall not be deemed waiver of any of
the terms and conditions of the Lease, and shall not preclude said landlord from
the exercise of any such rights upon any subsequent occurring default or
defaults.
(c) The parties agree that the Lease may be modified by such terms and
conditions as shall be affirmatively imposed upon Tenant by the Federal Reserve
Board, the Federal Deposit Insurance Corporation, the Comptroller of the
Currency, or state regulatory agencies, except that Landlord shall not be
required to reduce the rent and other charges due hereunder. Notwithstanding any
other provisions contained in the Lease, in the event the Tenant is closed or
taken over by the financial institutions authority of the State of Florida, or
other financial institution supervisory authority, the Landlord may terminate
the Lease only with the concurrence of such authority and any such authority
shall in any event have the election either to continue or to terminate the
Lease; provided that in the event this Lease is terminated, the maximum claim of
Landlord for damages or indemnity for injury resulting from the rent reserved by
the Lease, without acceleration for the year next succeeding, the rejection or
abandonment of the unexpired term of the Lease shall in no event be in an amount
exceeding the date of the surrender of the premises to the Landlord, or of the
date of re-entry of the Landlord, whichever first occurs, whether before or
after the closing of the financial institution, plus an amount equal to the
unpaid rent accrued without acceleration up to such date.
(G) If the term of any lease, other than this Lease, made by Tenant for any
other space in the Building shall be terminated or terminable after the making
of this Lease because of any default by Tenant under such other lease, such
default shall, ipso facto constitute a default hereunder and empower Landlord,
at Landlord's sole discretion, to terminate this Lease as herein provided in the
event of default.
(H) Any right herein granted to Landlord to terminate this Lease shall apply
to any extension or removal hereof.
(I) No receipt of money by Landlord from Tenant after the termination of this
Lease or after the service of any notice or after the commencement of any suit,
or after final judgment for possession of the Premises shall reinstate, continue
or extend the terms of this Lease or affect any such notice, demand or suit or
imply consent for any action for which Landlord's consent is required.
(J) No waiver of any default of Tenant hereunder shall be impled from any
omission by Landlord to take any action on account of such default if such
default persists or be repeated, and no express waiver shall affect any default
other than the default specified in the express waiver and then only for the
time and to the extent therein stated.
Landlord shall not be deemed in default of any of the terms, conditions,
requirements and provisions of this Lease until the expiration of thirty (30)
days after the receipt of written notice specifying any alleged default, but
only if Landlord shall have failed to cure or remedy said default during said
period. If the specified default by Landlord shall be of a nature that cannot be
completely cured within said thirty (30) day period then, if Landlord shall have
diligently commenced curing same within said thirty (30) day period then no
default shall be deemed to have occurred.
22. ATTORNMENT. If all or any portion of Landlord's interests hereunder shall be
transferred voluntarily or by reason or foreclosure or other proceedings for
enforcement of any mortgage or other form of lien or financing on the Building
or any part thereof, Tenant shall, at the option of said transferee, be bound to
such transferee ("Purchaser") for the balance of the term hereof remaining, and
any extensions or renewals hereof which may be effected in accordance with the
terms and provisions hereof with the same force and effect as if the purchaser
were the Landlord under this Lease, and Tenant does hereby agree, at the option
of Purchaser, to attorn to the Purchaser, including the mortgagee under any such
mortgage if it be the Purchaser, as its Landlord, said attornment to be
effective and self-operative without the execution of any further instruments
upon the Purchaser succeeding to the interest of Landlord under this Lease. The
respective rights and obligations of Tenant and the Purchaser upon such
attornment, to the extent of the then remaining balance of the term of this
Lease and any extensions and renewals hereof, shall be and are the same as those
set forth herein. In the event of such transfer of Landlord's interests,
Landlord shall be released and relieved from all liability and responsibility
thereafter to Tenant under this Lease or otherwise and Landlord's successor
shall become liable and responsible to Tenant in respect to all obligations of
Landlord under this Lease accruing from and after the date of such transfer
including, without limitation, the retention, disbursement and return of any and
all security deposits and advance rent, if any.
23. ASSIGNMENT. Without the written consent of Landlord first obtained in each
case, Tenant shall not assign, transfer, mortgage, pledge, or otherwise encumber
or dispose of this Lease or any portion of Tenant's interest herein or underlet
the Premises or any part thereof or permit the Premises to be occupied or used
by other persons. Any such action taken without Landlord's prior written consent
shall be null and void and shall be an event of default hereunder. Landlord may
arbitrarily withhold such consent in Landlord's sole discretion. In the case of
a subletting Landlord shall become entitled to collect and retain all rentals
payable under the sublease. If this Lease be assigned, or if the Premises or any
part thereof be underlet or occupied or used by any person or entity other than
Tenant, Landlord may collect or accept rent from the assignee, undertenant, or
occupant and apply the net amount collected or accepted to the rent herein
reserved, but no such collection or acceptance shall be deemed a waiver of this
covenant or the acceptance of the assignee, undertenant, or occupant as Tenant,
nor shall it be construed as or implied to be a release of Tenant from the
further observance and performance by Tenant of the terms, provisions, covenants
and conditions herein contained. In lieu of consenting or not consenting,
Landlord may, in Landlord sole discretion: (I) in the case of the proposed
assignment or subletting of Tenant's entire leasehold interest, terminate this
Lease in its entirety, or (ii) in the case of the proposed assignment or
subletting of a portion of the Premises, terminate this Lease as to that portion
of the Premises which Tenant has proposed to assign or sublet. In the event
Landlord elects to partially terminate this Lease pursuant to clause (ii) of
this paragraph, Tenant's obligations as to rent and other charges shall be
reduced in the same proportion that the Rentable Area of the portion of the
Premises taken by the proposed assignee or subtenant bears to the total Rentable
Area of the Premises. Any change in the ownership (legal or equitable) of and/or
power to vote 50% or more of the outstanding ownership interest of Tenant,
whether such change in ownership is by sale, assignment, bequest, inheritance,
operation of law or otherwise, shall be deemed an assignment of this Lease and
shall give rise to Landlord's remedies hereunder. Landlord's consent to any
assignment, subletting or other transfer or to any pledge or encumbrance of all
or any portion of Tenant's interest herein, shall in no way be deemed a consent
to any other assignment, subletting, transfer, pledge or encumbrance. In the
event of any assignment, subletting or other transfer or encumbrance of all or
any portion of Tenant's interest herein, whether with or without Landlord's
consent, Tenant shall remain fully liable for the payment of all rent and other
charges due hereunder and for the faithful performance of all of the terms,
conditions.
Covenants and provisions hereof. See Page 6-A
24. SUCCESSORS AND ASSIGNS. All terms, provisions, covenants and conditions to
be observed and performed by Tenant shall be applicable to and binding upon
Tenant's respective heirs, administrators, executors, successors and assigns,
subject, however, to the restrictions of Tenant as provided herein. All
expressed covenants of this Lease shall be deemed to be covenants running with
the land. All of the benefits and rights contained in this Lease shall enure to
the benefit of Landlord and Landlord's successors and assign.
25. HOLD HARMLESS. Tenant does and shall indemnify and keep Landlord harmless
from and against any and all losses, damages, fines, penalties, liabilities and
expenses, including, without limitation, attorney's fees incurred whether or not
suit is brought, at trial and appellate levels which may arise or be claimed
against Landlord and be in favor of any persons or entities, consequent upon or
arising from the use or occupancy of the Premises by Tenant, or consequent upon
or arising from any acts, omissions, neglect or fault of landlord invitees, or
consequent upon or arising from Tenant's failure to comply with any laws,
statutes, ordinances, Notwithstanding anything to the contrary contained herein,
any prohibition, such as assigning or subletting leases shall not be applicable
if the tenant is assigning or subletting to a wholly owned and/or controlled
subsidiary financial institution regulated by a federal regulatory agency. Codes
or regulation as herein provided. Landlord shall not be liable to Tenant and
Tenant does hereby release, remise, quitclaim and forever discharge Landlord
from and against any and all damages, losses, claims or injuries to the
officers, directors, owners, agents, servants, employees, licensees, guests,
visitors, customers, persons, or property of Tenant which may be caused by the
acts, neglect, omissions, or faults of any persons or entities except for the
gross negligence of Landlord or its employees. Tenant shall look solely to
Landlord's interest in the Building and in Landlord's personal property used in
connection therewith for the satisfaction of any judgment or decree based upon
any matters arising in connection with or in any way related to this Lease or
the Building and no other property or asset of Landlord shall be subject to
levy, execution or other enforcement procedure for the satisfaction of such
judgement or decree. In case Landlord shall be made a party to any litigation
commenced against Tenant, then Tenant shall protect and hold Landlord harmless
and shall pay all costs, expenses and reasonable attorney's fees incurred or
paid by Landlord in connection with such litigation and any appeal thereof.
Conversely, the preceding sentence shall also apply to the Landlord. The
provisions of this paragraph shall survive the termination of this Lease.
26. ATTORNEY'S FEES. If either party defaults in the performance of any of the
terms, provisions, covenants and conditions of this Lease and by reason thereof
the other party employs the services of an attorney to enforce performance of
the covenants, or to perform any service based upon defaults, then in any of
said events the prevailing party shall be entitled to recover reasonable
attorney's fees and all expenses and costs incurred by the prevailing party
pertaining thereto at trial and appellate levels and in the enforcement of any
remedy.
27. DAMAGE OR DESTRUCTION. In the event the Premises shall be destroyed or so
damaged or injured by fire or other casualty, during the term of this Lease or
any extensions or renewals hereof, whereby the same shall be rendered
untenantable, then Landlord shall have the right, but not the obligation, to
render the Premises tenantable by repairs within one hundred eighty (180) days
therefrom or to terminate this Lease. Within sixty (60) days following receipt
by Landlord of notice of said damage or destruction, Landlord shall notify
Tenant with respect to whether or not Landlord intends to restore the Premises
or terminate this Lease. If said Premises are not rendered tenantable within the
aforesaid one hundred eighty (180) days, either party shall have the option to
terminate this Lease, and in the event of such termination rent and other
charges shall be paid only to the date of such fire or casualty. The termination
herein must be exercised by written notice delivered within ten (10) days after
the expiration of said one hundred eighty (180) days. During any time that the
Premises are untenantable due to causes set forth in this paragraph, the rent or
a just and fair proportion thereof shall be abated. The aforesaid right of
termination shall be Tenant's sole and exclusive remedy in the event of such
damage or destruction and Tenant hereby waives any other remedies or causes of
action of any kind in connection therewith. Notwithstanding the foregoing,
should damage, destruction or injury occur by reason of the negligence or
wrongful acts of Tenant or any of its officers, directors, employees, agents or
representatives, Landlord shall have the right, but not the obligation, to
render the Premises tenantable within three hundred sixty (360) days of the date
of damage, destruction or injury and in no event shall there by any abatement of
rent nor shall Tenant have any right of termination. notwithstanding the
foregoing, should damage or destruction occur during the last twelve (12) months
of the term hereof either party shall have the option to terminate this Lease,
effective on the date of damage or destruction, by delivering written notice of
such intention within thirty (30) days after the date of damage or destruction;
provided, however, that if such damage or destruction is due to the neglect or
wrongdoing of Tenant or any of its officers, directors, employees, agents or
representatives, then Tenant shall remain liable to Landlord for any damage
therefrom and any rent and other charges due notwithstanding such termination
until Landlord has been rendered whole by any and all payments due and owed.
28. EMINENT DOMAIN. If there shall be taken during the term of this Lease all or
any portion of the Premises or the Building, other than a part not interfering
with maintenance, operation or use of the Premises, Landlord may elect to
terminate this Lease or to continue same in effect. If Landlord elects to
continue the Lease, the rent shall be reduced in the proportion that the
Rentable Area of the Premises so taken bears to the original Rental Area of
Tenant and Landlord shall repair any damage to the Premises or the Building
resulting from such taking. Tenant shall only have a right to terminate if
enough of the Premises is taken by condemnation fr Eminent Domain to render the
Premises unsuitable for its intended use. If all of the Premises is taken by
condemnation or Eminent Domain, or if Landlord elects to terminate as set forth
above, this Lease shall terminate on the date of the taking. All sums awarded
(or agreed upon between Landlord and the taking authority) for the taking of the
interest of Landlord and/or Tenant, whether as damages of as compensation, and
whether for partial or total condemnation, will be property of the Landlord. If
this Lease should be terminated under any provisions of this paragraph, rent
will be abated for a period of ninety (90) days, other charges shall be due and
payable up to the date that possession is taken by the taking authority. Tenant
shall not be entitled to and expressly waives all claim to any condemnation
award for any taking, whether whole or partial, and whether for diminution in
value of the leasehold or to the fee although Tenant shall have the right, to
the extent that same shall not reduce Landlord's award, to claim from the taking
authority, but not from the Landlord, such compensation as may be recoverable by
Tenant in its own right for damage to Tenant's business, fixtures and
improvements installed by Tenant at its expense.
29. LIEN FOR PAYMENT OF RENT.
30. RIGHT OF ENTRY. Landlord, or its agents, shall have the right to enter the
Premises In case of emergencies or with Tenant's approval, having been first
received.
31. NOTICE. Unless otherwise specifically provided herein, all notices to be
given hereunder shall be in writing and sent to the parties, as hereinafter
provided, at their respective addresses set forth in the beginning of this
Lease, by hand delivery, Federal Express, or by certified mail, return receipt
requested, postage prepaid. Unless otherwise specifically provided herein, said
notice shall be effective on the date such notice is either posted on the
Premises, hand delivered, deposited in the United States Mail, postage prepaid,
certified mail, return receipt requested, or upon delivery to Federal Express.
The place to which Landlord is entitled to receive any notice may be changed by
giving five (5) days prior written notice thereof in accordance with the
foregoing provisions. Notwithstanding anything herein to the contrary, the
posting on the Premises or the delivery thereto by Landlord of any notice shall
be conclusively deemed as delivery to Tenant of such notice, any provisions
herein to the contrary being strictly for Tenant's convenience and not as a
matter of right. Tenant hereby waives any right to service or service of process
and agrees that posting on the Premises or delivery thereto of any service or
service of process shall be conclusively deemed as adequate service or service
of process for any and all purposes.
32. LANDLORD CONTROLLED AREAS. All parking areas, driveways, entrances and exits
thereto, Common Areas, truck way or ways, loading areas, pedestrian walkways and
ramps, landscaped areas, stairways, corridors, elevators and elevator shafts and
other areas and improvements provided by Landlord for the general use, in
common, of tenants, their officers, agents, employees, servants, invitees,
licensees, visitors, patrons and customers, shall be at all times subject to the
exclusive control and management of Landlord, and Landlord shall have the right
from time to time to establish, modify and enforce rules and regulations with
respect to all such facilities, areas and improvements; to operate, maintain and
repair same in Landlord's sole discretion; to police same, from time to time, to
change the level, location and arrangement of such areas and other facilities
hereinabove referred to; to restrict parking by and enforce parking charges with
meters or otherwise, to tenants, their officers, agents, invitees, employees,
servants, licensees, visitors, patrons and customers; to close all or any
portion of said areas or facilities to such extent as my, in the sol opinion of
Landlord, be sufficient to prevent a dedication thereof or the accrual of any
rights to any portion of the public areas, Common Areas or facilities; to
discourage non-tenant parking; and to do and perform such other acts in and to
said areas, facilities and improvements as, in the sole judgement of Landlord,
the Landlord shall determine to be advisable. Nothing herein shall be construed
as giving Tenant any rights and/or privileges in connection with such parking
areas and/or facilities unless such rights and/or privileges are expressly set
forth elsewhere in this Lease.
33. CONDITION OF PREMISES ON TERMINATION OF LEASE AND HOLDING OVER. Tenant
agrees to surrender to Landlord, at the end of the term of this Lease and/or
upon any cancellation or termination of this Lease, the Premises in as good
condition as said Premises were in at the commencement hereof, ordinary wear and
tear excepted. Tenant agrees that if, Tenant does not surrender the Premises to
Landlord at the end of the term of this Lease then Tenant will have three (3)
months, after term to negotiate and sign lease or then have sixty (60) days to
terminate, and pay to Landlord double the amount of the current rent and other
charges due for each month or portion thereof that Tenant holds over plus all
damages that Landlord may suffer on account of Tenant's failure to surrender to
Landlord possession of the Premises, and will indemnify and save Landlord
harmless from and against all claims made by any succeeding Tenant of the
Premises against Landlord on account of delay of Landlord din delivering
possession of the Premises to said succeeding Tenant so far as such delay is
occasioned by failure of Tenant to so surrender the Premises in accordance
herewith or otherwise. No receipt of money by Landlord from Tenant after
termination of this Lease or the service of any notice of commencement of any
suit or final judgment for possession shall reinstate, continue or extend the
term of this Lease or otherwise affect any such notice, demand, suit or
judgment. No act or thing done by Landlord or its agents during the term hereby
granted shall be deemed an acceptance of a surrender of the Premises, and no
agreement to accept a surrender of the Premises shall be valid unless it be made
in writing and subscribed by a duly authorized officer or agent of Landlord.
34. OCCUPANCY TAX. Tenant shall be responsible for and shall pay before
delinquency all federal, municipal, county or state taxes assessed during the
term of this Lease against any occupancy interest, occupational use, or personal
property of any kind, owned by or placed in, upon or about the Premises by
Tenant.
35. SIGNS. Landlord shall have the right to install signs on the interior or
exterior of the Building and the Premises and/or change the Building's name or
street address at any time, in Landlord's sole discretion and with proper
written notice.
36. TRIAL BY JURY.
37. RELOCATION OF TENANT.
38. VALIDITY OF PROVISION. If any term, provision, covenant or condition of this
Lease or the application thereof to any person or circumstance shall, to any
extent, be invalid or unenforceable, the remainder of this Lease or the
application of such term, provision, covenant or condition to persons or
circumstances other than those as to which it is held invalid or unenforceable
shall not be affected thereby and each other term, provision, covenant or
condition of this Lease shall be valid and be unenforceable to the fullest
extent permitted by law. If any term or provision herein is subject to more than
one interpretation, one of which would render it valid and one which would
render it void or unenforceable then said term or provision shall be given the
interpretation that would render it valid and enforceable.
39. CONSTRUCTION. This Lease shall be construed in accordance with the laws of
the State of Florida.
40. TIME IS OF THE ESSENCE. Time is of the essence of all the terms, provisions,
covenants and conditions of this Lease.
41. WAIVER OF VENUE.
42. MISCELLANEOUS. The terms Landlord ant Tenant as herein contained shall
include singular and/or plural, masculine, feminine and/or neuter, heirs,
successors, executors, administrators, personal representatives and/or assigns
whenever the context so requires or admits. The terms, provisions, covenants and
conditions of this Lease are expressed in the total language of this Lease and
the paragraph headings are solely for convenience and are not intended to limit
or expand any of the provisions of this Lease. Any formally executed addendum to
or modification of this Lease and any riders, exhibits or attachments hereto
shall be expressly deemed incorporated by reference herein unless a contrary
intention is clearly stated therein.
43. EFFECTIVE DATE. Submission of this instrument for examination does not
constitute an offer, right of first refusal, refusal, reservation of or option
for the Premises or any other space or premises in, on or about the Building.
This instrument becomes effective as a lease only upon execution and delivery by
both Landlord and Tenant.
44. ENTIRE AGREEMENT. This Lease along with Addendums 1 and 2, rules and
regulations, site plan and floor plan contains the entire agreement between the
parties hereto and all previous negotiations leading hereto are superseded
hereby. This Lease may be modified only by an agreement in writing signed by
Landlord and Tenant. Tenant acknowledges and agrees that Tenant has not relied
upon any prior written or prior or contemporaneous oral promises, statement,
representation, agreements or warranties except such as are expressed herein.
45. BROKERAGE. Tenant represents and warrants that it has dealt with no broker,
agent or other person or entity in connection with this transaction and that no
broker, agent or other person or entity brought about this transaction, other
than N/A (if the foregoing blank has not been completed, the word iNonei shall
be deemed to have been typed there3in) and Tenant agrees to indemnify and hold
Landlord harmless from and against any claims by any other broker, agent or
other person or entity claiming a commissioner other form of compensation by
virtue of having dealt with Tenant with regard to this transaction. The
provisions of this paragraph shall survive the termination of this Lease.
46. NO RECORDING. Tenant shall not record this Lease or any memorandum or notice
hereof and any such recording shall give Landlord the right, in Landlordis sole
discretion, to terminate this Lease and pursue any other remedies available by
law or contained herein with respect to a default by Tenant.
47. FORCE MAJEURE. Neither Landlord nor Tenant shall be required to perform any
term, condition, or covenant in this Lease so long as such performance is
delayed or prevented by force majeure, which shall mean acts of God, labor
disputes (whether lawful or not), material or labor shortages, restrictions by
any governmental authority, civil riots, floods, and any other cause not
reasonably within the control of Landlord or Tenant and which by the exercise of
due diligence landlord or Tenant is unable, wholly or in part, to prevent or
overcome. Lack of money shall not be deemed force majeure.
48. DELEGATION. Landlord shall have the right, at any time and from time to time
to delegate and/or assign all or any portion of its duties, responsibilities and
obligations hereunder, in Landlordis sole discretion.
49. ADDITIONAL PAGES. This Lease consists of six (6) additional pages of
exhibits, riders and addenda.
IN WITNESS WHEREO, the parties hereto have signed and delivered this Lease in
triplicate at Miami, Dade County, Florida, as if the day and year first above
written.
WITNESSES: LANDLORD Centrum Pembroke, Inc.
/s/ ______________________________ By: /s/
Larry Golinsky, Executive Vice President
/s/ ______________________________ Dated:
TENANT: Flamingo Bank
/s/ ______________________________ By:/s/
Jules Littman,
/s/ ______________________________ Subscription Agent in Organization
Dated: Oct. 8, 1986
Dated:
Lease2sm/23
ADDENDUM
THIS ADDENDUM TO THAT CERTAIN LEASE (THE "Lease") of even date herewith by and
between CENTRUM PEMBROKE, INC., as Landlord, and Flemingo Bank, as Tenant, which
Lease is attached hereto and incorporated herein.
Any improvements and othe work of any kind done to the premises which in any
manner exceed, change or are in addition to Landlordis Work set forth in Exhibit
B shall be referred to as iTenantis Worki and shall be done at the sole cost and
expense of Tenant. No allowance shall be made for the omission of any of
Landlordis Work as a result of any request by Tenant for Landlord to omit such
work or as a result of the inability of landlord to perform any of Landlordis
Work due to any default hereunder by Tenant. Prior to commencing any work,
Tenant shall submit complete architectural and engineering plans and
specification ("Plans") to Landlord for Landlordis approval in Landlordis sole
discretion. Tenant shall deliver the Plans to Landlord on or before March 15,
1987. In the event that Tenant fails to submit the Plans within said time
period, then Landlord shall have the right to either: (a) proceed with
Landlordis Work as it deems appropriate, in Landlordis sole discretion, in which
event any changes thereafter required shall be at Tenantis sole cost and
expense: or (b) to declare the Lease in default, giving Landlord all of the
rights and remedies available to Landlord in the event of a default as set forth
in the Lease. No work shall be done except pursuant to the Plans and contracts
as approved by Landlord such approval shall not be reasonably withheld. In the
event Tenant does not proceed with Tenantis Work within one hundred eighty (180)
days after the State Charter has been approved as quickly as possible or Tenant
does not diligently proceed to completion thereof in order to open for business
at the earliest date then Landlord shall have the right to either: (a) declare
the Lease in default giving Landlord all of the rights and remedies available t
Landlord in the event of a default as set forth in the Lease; or (b) charge
Tenant as additional rent, the amount of $100 per day for each day that the
premises are not open for business.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals on the
dates set forth below their respective signatures.
Witness: Centrum Pembroke, Inc.
/s/ By: /s/
/s/ Larry Golinsky, Executive Vice President
/s/ Landlord
/s/ Flamingo Bank
By: /s/
Jules Littman,
Subscription Agent in Organization
Tenant
RDC (2/84)
Addendum
Addendum to and forming a part of that certain Office Lease Agreement
("Lease") of even date herewith by and between CENTRUM PEMBROKE, INC.
("Landlord") and FLAMINGO BANK ("Tenant").
OPTION TO RENEW
Provided that Tenant has not been in default of any of the terms, conditions
or provisions of the Lease at any time during the term thereof, then Tenant
shall have the option, but only if exercised in writing at least six (6) months
prior to the expiration of the original term of the Lease, to renew the Lease
for an additional TEN (10) YEARS upon all of the terms, conditions, provisions
and conenants set forth in the Lease. In addition to any Adjustment Months set
forth in the Lease, the Monthly Base Rent shall also be adjusted in the month of
January in each of the following years: 1999, 2000, 2001, 2002, 2003, 2004, and
2005. The foregoing shall be considered as Adjustment Months as that term is
used in the Lease. Except as set forth herein to the contrary, all of the terms
and provisions of the Lease shall remain in full force and effect according to
their terms which terms and conditions are incorporated herein.
Witness: LANDLORD: Centrum Pembroke, Inc.
/s/ By: /s/
/s/ Larry Golinsky, Executive Vice President
/s/ Date: October 8, 1986
/s/
TENANT: Flamingo Bank
By: /s/
Jules Littman,
Subscription Agent in Organization
Date: October 8, 1986
RULES AND REGULATIONS
1. No sign, door plaque, directory strip, advertisement or notice shall be
displayed, painted or affixed by Tenant in or on nay part of the outside or
inside of the Premises or the Building without the prior written consent of
Landlord and then only of such color, size, character, style and material, and
in such places as shall be approved by Landlord and municipal government as may
apply. Landlord has agreed to make space available on the top of the building
for the Tenant to apply its sign in keeping with building criteria and local
code. In the event of the violation of the foregoing by Tenant, Landlord may
remove same without any liability, and may charge the expense incurred by such
removal to Tenant. Signs on entrance doors to the Premises and directories shall
be placed thereon by a contractor designated by landlord and paid for by Tenant.
Signs, logos and decals required by Tenants regulating agencies shall be
excluded from this paragraph. Tenant shall be allowed to have a sign at the
upper most facis of the building and immediately above the tenants entrance.
2. No additional locks or bolts of any
kind shall be placed on any door in the Building and no changes shall be made to
the existing locks or bolts without the prior written consent of Landlord.
Landlord may at all times keep a pass key to the Premises.
3. Tenant shall not block or obstruct any of the entries, passages, doors,
elevators, elevator doors, corridors, hallways or stairways of the Building or
place empty or throw any rubbish, litter, trash or material of any nature into
such areas, or permit such areas to be used at any time except for ingress or
egress.
4. Glass panel doors that reflect or admit light into the passageways, or into
any place in the Building, shall not be covered or obstructed by Tenant, and
Tenant shall not permit, erect and/or place solar reflective film, drapes,
curtains, blinds, shades, screens, furniture, fixtures, shelving, display cases,
tables, lights, signs or advertising devises in front of, or in the proximity of
any interior or exterior windows, glass panels or glass doors without Landlordis
prior written consent.
5. Tenant, its officers, agents,
servants, employees, patrons, customers, visitors, invitees and contractors
shall park their vehicles only in the area of the parking facilities designated
for this purpose by Landlord.
6. Tenant shall not move furniture,
machines, equipment, merchandise or materials within, into or out of the
Premises, Building or Common Areas without Landlordis prior written consent
which consent shall dictate time, method and routing of movement so as not to
obstruct general use of the building. Safes, large files, electronic data
processing equipment and other heavy equipment or machines shall be moved into
the Premises, Building or Common Areas only with Landlordis written consent and
places where directed by Landlord. Any damage done to the Premises, Building or
Common Areas or to other Tenants or persons during such movement of furniture,
equipment, machines, merchandise or materials shall be paid for by Tenant.
7. There shall not be used anywhere in the Building any hand trucks, except
those equipped with rubber tires and side guards.
8. All
contractors and/or technicians performing work for Tenant within the Premises,
Building or Common Areas, shall be referred to Landlord for approval before
performing such work. This shall apply to all work including, but not limited
to, installation of telephones, telegraph equipment, electrical devices and
attachments, and all installations affecting floors, walls, windows, doors,
ceilings, equipment, or any other physical feature of the Premises, Building or
Common Areas. None of this work shall be done by any Tenant without Landlordis
prior written approval.
9. Tenant shall do no painting or decorating in the Premises, or mark, paint or
cut into, drive nails or screw into, nor in any way deface any part of the
Premises or the Building without the prior written consent of Landlord. If
Tenant desires signal, communication, alarm or other utility or service
connection installed or changed, such work shall e done at the expense of
Tenant, but only after receipt of the approval and under the direction of
Landlord.
10. All doors leading to the Premises from any corridor, passage or hallway
shall be kept closed at all times, except when someone is actually entering or
leaving the Premises.
11. Tenant shall, before leaving the Demised Premises unattended, close and lock
all doors and shut off all utilities. Any damage resulting from failure to do so
shall be paid by Tenant.
12. Tenant, with best efforts, shall not permit any noise or noises to be heard
outside the Demised Premises that are obnoxious or nuissance causing.
13. Tenant shall not permit any equipment or device within the Premises which
will impair radio or television broadcasting or reception from or in the
Building.
14. Tenant shall not bring into the Building or keep on the Premises any fish,
fowl, reptile, insect or animal of any kind whatsoever without prior written
consent of Landlord.
15. Tenant shall not use the Premises, Building or Common Areas for housing,
lodging or sleeping purposes or for the cooking or preparation of food without
the prior written consent of Landlord.
16. Tenant shall not install or operate any refrigerating, heating or air
conditioning apparatus or carry on any mechanical operation, or bring into the
Premises, Building or Common Areas any flammable, combustible or explosive
fluid, chemical, material or substance without the prior written consent of
Landlord.
17. The requirements of Tenant will be attended to only upon application to
Landlord. Landlordis employees and agents shall not perform any work or do
anything outside of their regular duties, unless under special instructions from
the Landlord and with reasonable notice.
18. The plumbing facilities shall not be used for any other purpose than that
for which they are constructed, and no foreign substance of any kind shall be
thrown therein, and the expense of any breakage, stoppage or damage resulting
from a violation of this provision, shall be borne by Tenant.
19. The work of Landlordis janitorial personnel, if any, shall not be hindered
by Tenant after 5:30 p.m. and such work may be done at any time when the
Premises or Building are or should be vacant. The exterior windows, doors and
fixtures may be cleaned at any time.
20. In the event Tenant must dispose of crates, boxes, or other items which will
not fit into office wastepaper baskets, it will be the responsibility of Tenant
to dispose of same. In no event shall Tenant se such items in the public
hallways, or other areas of the Building or parking facilities, excepting
Tenantis won Premises, for disposal.
21. Tenant will be responsible for any damage to the Premises, including
carpeting and flooring, as a result of rust or corrosion of file cabinets,
roller chairs, metal objects, or spills of any type of liquid, excluding normal
wear and tear.
22.
23. Canvassing, solicitation and peddling in the Premises, Building and Common
Areas are prohibited, and each Tenant shall cooperate to prevent same. In this
respect, Tenant shall promptly report such activities to Landlord.
24. Tenant shall not solicit business in the Building or Common Areas, nor
distribute any handbills, or other advertising matter, to vehicles parking in
the parking facilities.
25. Landlord will not be responsible for lost or stolen property, equipment,
money or any article taken from the Premises, Building or parking facilities,
regardless of how or when such loss occurs.
26. No vending machine of any description shall be installed, maintained or
operated upon the Premises without the prior written consent of Landlord.
27. Tenant shall not go upon the roof of the Building without the written
consent of the Landlord.
28. Tenant shall not install any antenna or aerial wires, radio or television
equipment, or any other such equipment, inside or outside of the Building,
without Landlordis prior written consent and upon such terms and conditions as
may be specified by Landlord.
30. Landlord reserves the right to close the Building and refuse access to the
Building or the halls, corridors, elevators or stairways of the Building from
1:00 p.m. Saturday to 8:00 a.m. Monday, on holidays declared by Landlord,
whenever the Building is not open to the public and on Monday through Friday
between the hours of 6:00 p.m. and 8:00 a.m. unless the person seeking access
has a pass or is properly identified. Landlord shall in no case be liable for
damages for the admission to, or exclusion from the Building of any person.
Tenantis officers, agents, servants and employees shall be permitted to enter
and leave the Building whenever appropriate arrangements have been previously
made between Landlord and Tenant with respect hereto. Each Tenant shall be
responsible for all persons for whom he requests permission, and shall be liable
to Landlord for all acts of such persons. Any person whose presence in the
Building at any time shall, in the judgment of Landlord, be prejudicial to the
safety, character, reputation and interest of the Building or its tenants, may
be denied access to the Building or may be ejected therefrom. In case if
invasion, riot, public excitement or other commotion, Landlord may prevent all
access to the Building or any part thereof during the continuance of same, by
closing the doors or otherwise. Landlord may, but is not obligated, to require
any person leaving the Building with any package or other object, to exhibit a
pass from the tenant from whose Premises the package or object is being removed,
but the establishment and enforcement of such requirements shall not impose any
responsibility on Landlord for the protection of any Tenant against the removal
of property from the Premises of Tenant. Landlord shall in no way be liable to
any Tenant for damages or loss arising from the admission, exclusion or ejection
of any person to or from the Premises, or the Building. Landlord shall with
proper notice, allow invitees on to the premises. In no event shall permission
be unreasonable withheld.
31. Tenant shall not permit the violation of any of these Rules and Regulations
by any of Tenantis officers, directors, employees, agents, representatives,
guests, customers, licensees, invitees or any other person or entity visiting
the Building in connection with Tenant.
33. All of the terms,
provisions, conditions and covenants of that certain Office Lease Agreement of
which these Rules and Regulations form a part, are incorporated herein and all
defined terms as used herein shall have the same meaning as defined in said
Office Lease Agreement.
EXHIBIT A Site Plan (map)
EXHIBIT B Ground Floor Plan (map)
LEASE MODIFICATION ASSIGNMENT
THIS LEASE MODIFICATION AGREEMENT (the "Agreement"), made as of the 6th day of
December, 1989, by and between Centrum Pembroke, Inc., as Landlord (the
"Landlord"), and Flamingo Bank, as Tenant (the "Tenant").
WHEREAS, by the lease dated October 8, 1986, by and between the parties hereto
(such Lease, together with all valid addenda, exhibits, modifications,
assignments, extensions, options, riders, and amendments thereto, are
collectively referred to as the "Lease"), the Landlord leased to the Tenant and
the Tenant leased from the Landlord, for the term and upon the terms and
conditions therein set forth, certain space (the "Premises") within the office
building known as One Centrum Plaza (the "Office Building"), as more
particularly described in the Lease; and
WHEREAS, Landlord and Tenant have agreed to amend the Lease as herein
set forth;
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
herein contained, and for Ten Dollars ($10.00) and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. This Agreement modifies the terms and conditions of the Lease, and to the
extent of any conflict between this Agreement and the Lease, the terms contained
in this Agreement shall control.
2. Landlord will assure that the outside front doors of the Office Building
are unlocked on Saturdays between the hours of 9:00 a.m. and 1:00 p.m. during
the Lease.
3. Landlord will assure that the Premises receive air conditioning service on
Saturdays between the hours of 9:00 a.m. and 1:00 p.m., during the Lease.
4. Upon the execution of this Agreement, Tenant is simultaneously delivering
to Landlord (i) affidavits from the Tenant and its general contractor averring
that all contractors, subcontractors and material suppliers and laborers have
been paid in full for all work and materials furnished on or about the Premises,
(ii) a copy of Tenant's Certificate of Occupancy, and (iii) a copy of the final
release of liens from Tenant's general contractor. (Landlord hereby acknowledges
that Tenant has already satisfied the conditions of this Paragraph 4.)
5. Within fifteen (15) days after full execution of this Agreement, Landlord
will deliver to Tenant the sum of $50,000.00, representing the full amount of
Tenant's building allowance as adjusted and agreed. If the said $50,000.00 is
not so delivered by Landlord to Tenant within the said 15 days, Landlord will be
obligated to pay Tenant interest on the said $50,000.00 at the overnight Federal
Funds rate currently in effect, until the said amount is paid, but in no event
shall the above payment due to the Bank be made later than 30 days from the date
of this execution.
6. In settlement of the parties' dispute over the rental commencement date,
Landlord has granted Tenant a rent abatement in the amount of $55,539.06 paid by
credit towards rent, real estate taxes and common area maintenance charges for
the months of July, 1989 and thereafter until the said $55,539.06 credit has
been fully applied, and the parties hereby acknowledge and agree that said
credit in the amount of $55,539.06 has been fully applied and Tenant is not
entitled to any further credit.
7. Upon full execution hereof and until December 31, 1989, Tenant shall be
permitted to designate five parking spaces with yellow curbs reading "Bank
Parking Only", effective for the remainder of the term of the Lease and any
extensions thereof, provided however, that Tenant shall comply with all
applicable building, zoning and other legal requirements. Said spaces shall be
located facing the northeast corner of the building housing the Premises. The
parties further agree that Landlord shall not be responsible for monitoring,
policing or ensuring that no one is improperly using said spaces; said
responsibilities shall be totally that of Tenant. Tenant agrees that it shall
not cause any vehicle parked in said spaces to be damaged, and shall not cause
any such vehicle to be towed or removed without the consent of the owner
thereof.
8. Tenant's Monthly Base Rent for the months of April, 1989 through March,
1990, inclusive, shall be based upon a base rental rate of $16.00 per square
foot. Accordingly, Monthly Base Rent for each of those twelve (12) months will
be $5,909.33.
9. The first Consumer Price Index ("C.P.I.") adjustment to the Monthly Base
Rent of $5,909.33 will occur and apply to Monthly Base Rent due for the month of
April, 1990, and thereafter the Monthly Base Rent shall increase pursuant to the
terms and conditions of the Lease.
FIRST AMENDMENT TO LEASE
This First Amendment to Lease ("Amendment") is executed by and between
Pembroke Office, Inc., a Florida Corporation ("Lessor") and Flamingo Bank
("Tenant").
WITNESSETH
WHEREAS, Lessor and Tenant entered into that certain Lease Agreement dated
October 8, 1986 as modified by that certain Lease Modification Agreement dated
December 6, 1989 ("the Lease") for Tenant's use of the premises located at One
Centrum Plaza, ("The Building"), One Southwest 129th Avenue, Pembroke Pines, FL
("the Leased Premises");
WHEREAS, Lessor and Tenant desire to amend the Lease to provide for additional
signage for Tenant and to provide for occupancy of additional space by Tenant on
the terms set forth below.
NOW THEREFORE, based upon the foregoing mutual premises and the sum of $10.00
and other valuable consideration, the sufficiency and receipt of which are
hereby deemed conclusively acknowledged, it is agreed as follows:
1. The foregoing recitals are true and correct.
2. Capitalized Terms. Capitalized terms in this Amendment shall have the same
meaning as capitalized terms in the Lease, unless otherwise noted in this
Amendment.
3. Signage. Lessor agrees that subject to obtaining necessary approval from
all local governing authorities, Tenant may install one "Flamingo Bank" sign on
the top outer west facia of the Building of the same quality, size and style of
the sign presently installed on the eastern facia of the Building provided that
Tenant agrees to remove the "One Centrum Plaza" sign from the northern facia of
the Building with all costs of removal and installation to be borne by Tenant.
Tenant agrees that it shall have no further right to any additional signage on
the outer facia of the Building. Tenant further agrees to procure all necessary
permits prior to the removal or installation of any signage.
**Add: **Tenant will have the right to change the name of the Bank on
its signage subject to review and approval of the Lessor, such approval not
to be unreasonably withheld.
4. Expansion of Leased Area. Tenant hereby agrees that the Lease is expanded to
include the premises immediately adjacent to and contiguous with the Leased
Premises ("Expansion Area") which Expansion Area is comprised of approximately
_____________ Tenant's occupancy of the Expansion Area shall be governed by the
terms of the Lease subject to the following conditions:
(a). Commencement Date. Upon execution and delivery of this Amendment;
(b). Term of Lease. Co-terminus with Lease;
(c). Base Rent. ____________ for the duration of the Lease term;
(d). Additional Rent. _______________ to increases in accordance with
the terms of the Lease;
(e). Improvements. Tenant has inspected the Expansion Area and agrees to
accept the Expansion Area in "as is" condition. Any proposed improvements to
the Expansion Area shall be subject to Lessor's approval and shall be made
at Tenant's sole cost and expense.
(f). Right Of Termination. Lessor reserves the right to terminate Tenant's
entitlement to possession of the Expansion Area upon providing Tenant with 120
days written notice of its intention to do so. Landlord's election to terminate
Tenant's entitlement to possession of the Expansion Area will in no way release
Tenant from its obligations under the Lease with respect to the Leased Premises.
5. Radon Gas. The following paragraph shall be added to the Lease.
Radon Gas. Radon is a naturally occurring radioactive gas that, when it has
accumulated in a building in sufficient quantities, may present health risks to
persons who are exposed to it over time. Levels of radon that exceed federal and
state guidelines have been found in buildings in Florida. Additional information
regarding rayon testing may be obtained from your own county public health unit.
6. Conflicts. In the event of any conflicts between the provisions of this
Amendment and the provisions of the Lease, the terms of this Amendment will
control.
7. Ratification. Except as expressly provided in this Amendment, the Lease as
amended by this Amendment, shall remain in full force and effect and the parties
hereby ratify and confirm same as amended.
8. Entire Agreement. The Lease and this Amendment constitute the entire
agreement of the parties and the same shall not be amended or modified orally.
All understandings and agreements whether oral or written heretofore had between
the parties are merged into the Lease and this Amendment which alone fully
express the parties understandings with respect to this transaction.
Signed, sealed and
delivered in the
presence of:
Lessor:
Pembroke Office, Inc.
/s/ By: /s/
/s/ Name:
Title:
Date:
Tenant:
Flamingo Bank
/s/ By: /s/ Richard J. Gray
/s/ Name: /s/ Richard J. Gray
Title: President
Date: 10/26/92
SECOND AMENDMENT TO LEASE
This Agreement is made and entered into this 17th day of September 1993 by and
between FLAMINGO BANK ("Tenant") and Cen Office Building Limited Partnership
successor to Centrum Pembroke, Inc. ("Landlord") and is hereby a part of that
certain Lease Agreement dated October 8, 1986 and that Lease Modification
Agreement dated December 6, 1989 and that First Amendment to Lease (undated) by
and between Landlord and Tenant for office space located in:
CEN OFFICE BUILDING LIMITED
One S.W. 129th Avenue, Suite #100
Pembroke Pines, Broward County, Florida 33027
consistlng of approximately 5,719 square feet of rentable area.
WHEREAS Landlord and Tenant mutually agree to amend said Lease Agreement under
the following terms and conditions:
1. Landlord acknowledges that he has been advised of the proposed merger of
Tenant into Pointe Federal Savings Bank, which is subject to regulatory
approval. Landlord has been advised that this
proposed merger will result in a change of and/or
power to vote 50% or more of the outstanding ownership interest of Tenant.
Pursuant to Section 23 of the lease, Landlord agrees to treat the resulting
entity, Pointe Federal Savings Bank, as Tenant for all purposes under the terms
of the lease and Landlord hereby consents to such transfer of Tenant's
obligations under the Lease.
2. Any changes in signage required will be at Tenant's sole expense.
3. The Lease, as of the date hereof, is in full force and effect and has not
been modified or amended in any respect whatsoever and constitutes the complete
agreement between Lessee and Lessor or its agent with respect to the use and/or
occupancy of the Premises. Lessee has not been granted or received any options,
concessions or free rent and lessee does not have the option to purchase the
Premises pursuant to any lease or otherwise except as set forth in the Lease.
Lessor is not in default in the performance of the Lease and Lessee has no right
to cancel or otherwise terminate the Lease.
WITNESSES:
/s/ Michael J. Wilkie
Michael J. Wilkie
PRINT NAME
LANDLORD:
CEN OFFICE BUILDING LTD.
By: Lloyd J. Boggio
LLOYD J. BOGGIO
TITLE: Vice-Pres, CEN OFFICE BLDG, INC.
WITNESSES:
/s/ Joyce Fekete
Joyce Fekete
PRINT NAME
TENANT:
FLAMINGO BANK
By: Richard J. Gray
Richard J. Gray
PRINT NAME
TITLE: President/CEO
THIRD AMENDMENT TO LEASE
This agreement is made and entered into this 20th day of June, 1994, by and
between FLAMINGO BANK ("Tenant") and CEN Office Building Limited Partnership
successor to Centrum Pembroke, Inc. ("Landlord"), and is hereby a part of that
certain Lease Agreement dated October 8, 1986, and that Lease Modification
Agreement dated December 6, 1989, and that First Amendment to Lease (undated),
and the Second Amendment to Lease dated September 17, 1993 by and between
landlord and Tenant for office space located in:
CEN OFFICE BUILDING LIMITED
One S.W. 129th Avenue, Suite #100
Pembroke Pines, Broward County, Florida 33027
consisting of approximately 5,719 square feet of rentable area.
WHEREAS Landlord and Tenant mutually agree to amend said Lease Agreement under
the following terms and conditions.
1. Landlord acknowledges that he was previously advised of and consented to
transfer of tenant's obligations based on the proposed merger of tenant into
Pointe Federal Savings Bank. Landlord acknowledges that this transaction did not
occur and Landlord therefore withdraws its consent to the transfer of Tenant's
obligations to Pointe Federal Savings Bank.
2. Landlord has been advised that, instead, a holding company, Pointe Financial
Corporation, will be acquiring ownership of Tenant and that Tenant will continue
to operate as a wholly owned commercial banking subsidiary of the holding
company. Landlord has been advised that this proposed acquisition will result in
a change of and/or power to vote 50% or more of the outstanding ownership
interest of Tenant. Pursuant to Section 23 of the Lease, Landlord hereby
consents to the change in ownership of Tenant.
3. The Lease, as of the date hereof, is in full force and effect and has not
been modified or amended in any respect whatsoever and constitutes the complete
agreement between Lessee and Lessor or its agent with respect to the use and/or
occupancy of the Premises. Lessee has not been granted or received any options
concessions or free rent, and lessee does not have the option to purchase the
Premises pursuant to any lease or otherwise except as set forth in the Lease.
Lessor is not in default in the performance of the Lease, and Lessee has no
right to cancel or otherwise terminate the Lease.
4. Any changes in signage required will be at the sole expense of the tenant.
WITNESSES: LANDLORD:
/s/ Jacqueline Boggio CEN OFFICE BUILDING LTD.
(Print Name) Jacqueline Boggio /s/ S Marcus
/s/ Arlene Payne Stewart Marcus
(Print Name) Arlene Payne (Print Name)
General Partner
Title
WITNESSES: TENANT:
FLAMINGO BANK
/s/ Dora DeVito
(Print Name) Dora DeVito By: Richard J. Gray
Richard J. Gray
/s/ Kathy Martinez (Print Name)
(Print Name) Kathy Martinez President/Chief
Executive Officer
TITLE
SUBLEASE
THIS SUBLEASE, made and entered into this 31 day of March 1995, by and between
POINTE BANK, a Florida commercial bank, located at One West Flamingo Drive,
Pembroke Pines, Florida, 33027 (hereinafter called "Sublessor") and ELIASHIM
MICROCOMPUTERS, INC. a "Florida corporation, located at One W. Flamingo Dr.,
Suite 105, Pembroke Pines, FL. (hereinafter called
"Sublessee").
WITNESSETH:
WHEREAS, the Sublessor herein is the Tenant under
the Main Lease, as defined in paragraph 12 (a) below, by and between CEN Office
Building, Ltd., successor in Interest to Centrum Pembroke, Inc., as Landlord,
and Sublessor, formerly known as Flamingo Bank, as Tenant, dated October 8,
1986, which Main Lease covers approximately 3,885 square feet of the premises in
the building known as One Centrum Plaza located at the address of Sublessor set
forth above and Improvements located therein as more particularly described
therein (the "Demised Premises"); and
WHEREAS, the
Sublessee is desirous of subleasing a portion of the Demised Premises, as
hereafter described, from Sublessor.
NOW, THEREFORE, the Sublessor and the
Sublessee, for and in consideration of the mutual covenants, agreements and
undertakings herein contained, and in further consideration of payments herein
mentioned, made and to be made, do, by these presents, mutually covenant and
agree as follows:
1. SUBLEASED PREMISES: Sublessor hereby leases
to Sublessee, and Sublessee hereby leases from Sublessor, for the term and
subject to the conditions and covenants hereinafter set forth, these premises
depicted on Exhibit "A" attached hereto and by reference made hereof, containing
a Rentable Area of approximately 1,287 square feet located at the Demised
Premises (the "Subleased Premises").
2. TERM: The term of this
Sublease shall commence on April 1, 1995 (the "Commencement Date") and terminate
on the earliest of the dates set forth below (the "Termination Date"):
(a) Upon the termination of the Main Lease;
(b) Upon the termination
of this Sublease in accordance with the provisions hereof; and
(c) September 30, 1996
3. USE: The Subleased Premises shall be used by Sublessee for general office
purposes only and no other use whatsoever.
4. SECURITY:
Sublessee, concurrently with the execution of this Sublease, has deposited with
the Sublessor the sum of Three Thousand Five Hundred Thirty Nine and 25/100
Dollars ($3,539.25) (the "Security Deposit"), the receipt of which is hereby
acknowledged by Sublessor, which sum shall be retained by Sublessor as security
for the payment by Sublessee of the rents herein agreed to be paid by Sublessee
and the faithful performance by Sublessee of the terms and covenants of this
Sublease. In the event of any default by Sublessee, Sublessor, at its option,
may at any time apply the Security Deposit, or any part thereof, toward the
payment of any rentals in default and towards any and all other sums payable by
Sublessee under the Sublease which are in default, or to reimburse Sublessor for
any other sums which Sublessor may spend or may be required to spend by reasons
of Sublessee's default, and toward the performance of each and every of
Sublessee's covenants under this Sublease which are in default. Sublessee shall
remain liable for any amounts that such sum shall be insufficient to pay.
Sublessor may exhaust any or all rights and remedies against Sublessee before
resorting to said sum, but nothing herein contained shall require, or be deemed
to require, Sublessor so to do. In the event the Security Deposit shall not be
utilized for any such purpose, such sum (or the unused portion thereof) shall be
returned by Sublessor to Sublessee within thirty (30) days after the Termination
Date. Sublessor shall not be required to pay Sublessee any interest on the
Security Deposit.
5. RENT: For the term of the Sublease, in addition to the Security Deposit: a.
the total rental of Thirty One Thousand Eight Hundred Fifty Three Dollars and
Twenty Five Cents ($31,853,25), payable in equal monthly installments of One
Thousand Seven Hundred
12. DEFINED TERMS:
a. The term "Main Lease" shall be mean:
(i) The Office Agreement dated October 3, 1986 by and
between Centrum Pembroke, Inc.and Flamingo Bank;
(ii) The Lease Modification Agreement, dated December 6,
1989 by and between Centrum Pembroke, Inc. and Flamingo Bank;
(iii) The First Amendment to Lease, undated, by and between
Pembroke Office, Inc., successor to Centrum Pembroke, Inc., and Flamingo Bank;
(iv) The Second Amendment to the Lease, dated September 17, 1993 by and
between CEN Office Building Ltd., successor to Centrum Pembroke, Inc., and
Flamingo Bank;
(v) The Third Amendment to Lease, dated June 20, 1994, by and between CEN
Office Building, Ltd and Flamingo Bank;
(vi) All exhibits, schedules and attachments to any of the instruments
listed in paragraph 12 (i) through (v) inclusive above.
b. All terms used and not otherwise defined herein shall have the meanings
given in the Main Lease.
13. NO BROKER: Sublessee hereby represents, warrants and covenants to
Sublessor that no broker, finder or any intermediary, other than Abood &
Associates, Inc. (the "Broker") has been contacted, utilized or involved in the
negotiation and consummation of this Sublease. Further, Sublessee agrees to
indemnify and hold Sublessor harmless from any liability, claim, cause of
action, lawsuits, costs and expenses incurred by Sublessor as a result of any
claim made by any broker, finder or any intermediary claiming to have dealt with
Sublessee, other than the Broker.
14. CONDITION OF PREMISES: Sublessor,
at Sublessor's expense, agrees to alter the Subleased Premises as set forth in
Exhibit "B" attached hereto and by reference made a part hereof prior to the
Sublessee's occupancy of the Subleased Premises, provided that such alterations
are not prohibited under the terms of the Main Lease and that Sublessor's out of
pocket expenses in no event exceed $1200.00. Sublessee acknowledges that
Sublessee has inspected the Subleased Premises and, except as expressly noted in
this paragraph, accepts the Subleased Premises in its present and "as is"
condition.
15. CONFLICT: In the event of any conflict
between the terms and conditions set forth in the Main Lease and this Sublease,
the terms and provisions of the Main Lease shall govern and control the rights
and obligations of the parties thereto.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals as of
the day and year first set forth above.
Signed, Sealed and SUBLESSOR:
Delivered in the Presence of: Pointe Bank, a Florida
Commercial Bank
/s/ By: /s/ Richard J. Gray
Witness Richard Gray, President
/s/
Witness
CONSENT OF SUBLESSEE
The undersigned, as Sublessee under a Sublease Agreement date March 31, 1995 by
and between Pointe Bank, a Florida commercial bank, and Eliashim Microcomputers,
Inc., a Florida Corporation, ("Sublessee"), does hereby consent to and approve
the foregoing Assignment of Sublease.
Upon execution of this Assignment and effective March 1st, 1996, the Sublessee
will pay all rent monies, due in accordance with Sublease, directly to the
Assignee, CEN Office Building, Ltd., 9050 Pines Boulevard, Suite 450, Pembroke
Pines, FL 33024. In addition, the security deposit in the amount of Three
Thousand Five Hundred Thiry Nine and 25/100 Dollars ($3,539.25) shall be
transferred from the Assignor to the Assignee upon execution of this Assignment.
SUBLESSEE:
ELIASHIM MICROCOMPUTERS, INC.
By: /s/ Moti J. Dover
Name: Moti Dover
Title: President
ASSIGNMENT OF SUBLEASE
THIS ASSIGNMENT OF SUBLEASE (hereinafter the "Assignment") made and entered into
this 22nd day of February, 1996, by Pointe Bank, a Florida commercial bank, One
S.W. 129th Avenue, Suite 100, Pembroke Pines, FL 33027 (hereinafter the
"Assignor") to CEN Office Building, Ltd., 2121 Ponce de Leon Boulevard,
Penthouse II, Coral Gables, FL 33134 (hereinafter the "Assignee").
WITNESSETH
WHEREAS, Assignor, is a SubLessor under that certain SubLease Agreement dated
the 31st day of March, 1995 between Pointe Bank and Eliashim Microcomputers,
Inc. (hereinafter the "Sublessee") for space located at One S.W. 129th Avenue,
Pembroke Pines, FL 33027, known as Suite 105 and comprised of 1,287 square feet
(hereinafter the "Sublease"); and
WHEREAS, Assignee has executed an Addendum to Lease dated 22 February 1996, by
and between CEN Office Building, Ltd., and Pointe Bank a Florida commercial bank
for the premises and as part of said renewal has agreed to receive an assignment
of the Sublease.
NOW THEREFORE, for an in consideration of mutual covenants, promises and
conditions contained herein and pursuant to the terms of the Addendum to Lease
and other good and valuable consideration, the receipt and Sufficiency of which
are hereby acknowledged, Assignor (does hereby assign, transfer, set over and
convey unto Assignee all of Assignor's rights, title and interest in, to and
under the Sublease, together with all leasehold improvements thereon, and
additions thereto, now located thereon, it being the intention hereby to
establish an absolute transfer and assignment of all rights in the Sublease to
Assignee, which assignment is consented to by the Sublessee.
FURTHER, concurrently with the execution of this Assignment, the Security
Deposit of Three Thousand Five Hundred Thirty Nine and 25/100 Dollars
($3,539.25) shall be transferred to the Assignee.
THIS ASSIGNMENT shall include any extensions, modifications, amendments and
renewals of the SubLease.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
Signed, sealed and delivered in the presence of:
/s/ Dorothy Yacovone
/s/ Carol B. Stevenson
/s/ Kathryn Tretble
/s/ Deborah Villanova
/s/ Jan L. Gerdes
ASSIGNOR:
Pointe Bank, a Florida commercial bank
By: /s/ Richard J. Gray
Richard J. Gray, President
ASSIGNEE:
CEN Office Building, Ltd.
By: /s/ Stewart Marcus
Stewart Marcus, President
SUBLESSEE:
Eliashim Microcomputers, Inc.
By: /s/ Moti J. Dover
Moti Dover, President
ADDENDUM TO LEASE
THIS ADDENDUM TO LEASE (hereinafter the "Addendum") made and entered into this
22nd day of February, 1996, by and between CEN OFFICE BUILDING, LTD., successor
to CENTRUM PEMBROKE, INC. (hereinafter the "Landlord") and Pointe Bank, a
Florida commercial bank, successor to Flamingo Bank, One S.W. 129th Avenue,
Pembroke Pines, FL 33027 (hereinafter the "Tenant").
WITNESSETH:
WHEREAS, CEN Office Building, Ltd., is the owner and holder of that certain
office Lease Agreement dated the 8th day of October, 1986 by and between Centrum
Pembroke, Inc., a Florida corporation, and Pointe Bank, a Florida commercial
bank, and all addenda thereto which are attached hereto as Exhibit "A" (the
"Lease"); and
WHEREAS, Tenant and Landlord desire the following changes to the Lease Agreement
to which CEN Office Building, Ltd. is agreeable.
NOW THEREFORE, in consideration of the mutual covenants, promises and conditions
contained herein and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
1. TERM: Pursuant to the Lease dated October 8, 1986, the Lease terminates on
September 30, 1996. Pursuant to this Addendum, the term of the Lease is hereby
extended to February 28, 2006, unless sooner terminated as provided in the Lease
Agreement.
2. SQUARE FOOTAGE: Effective March 1, 1996, the square footage shall be reduced
from 5,719 to 4,432 Square feet.
3. BASE RENT: Effective March 1, 1996 through February 28, 1998 (3/1/96-
2/28/98) the per square foot annual rental rate will be $15.76 per square foot
or $5,820.69 per month, not including applicable sales tax.
4. ANNUAL INCREASES: For the periods of March 1, 1998 through February 28, 2006,
the monthly Base Rent shall be increased by the Consumer Price Index (CPI)
calculated by tile following formula:
The monthly Base Rent for each 12-month period subsequent to the first 12-month
period occurring during the term shall be computed by multiplying the Base Rent
of the prior 12-month period by fraction, the numerator of which shall be the
Consumer Price Index For All Urban Consumers (1982-1984=100). All Items, Bureau
of Labor statistics of the United States Department of labor (the "Index"), for
the third month prior to the respective anniversary date, and the denominator of
which shall he the index for the third month prior to the term commencement
date, provided, however, that in no event shall the monthly Base Rent, as
adjusted, be less than the Base Rent for the preceding 12-month period. Provided
however, that in no event shall the monthly Base Rent, as adjusted be less than
an increase of two percent (2%) or greater than an increase of six percent (6%)
for the preceding 12 month period.
5. ADDITIONAL RENT: For the first year, operating expenses pass through to the
Tenant shall not exceed $7.00 per square foot. Thereafter, operating expense
pass throughs will be in accordance with the Lease.
6. TENANT'S PERCENTAGE SHARE: The Tenant's Percentage Share of the Building will
be modified to be 10.7%
7. APPLICATION OF LEASE AGREEMENT: All terms and conditions of the Lease
Agreement shall remain in full force and effect and shall be equally applicable
in all respects hereto except as specifically and expressly modified hereby or
provided herein.
8. ASSIGNMENT OF SUBLEASE AGREEMENT: Landlord agrees that Tenant may assign its
interest in the sublease agreement to CEN Office Building, Ltd.
9. WAIVER OF DEFENSES AND CLAIMS: Tenant does hereby confirm and ratify that as
of the date hereof the Lease is in good standing, in full force and effect and
that Tenant has no set-offs, counterclaims or crossclaims against Landlord.
IN WITNESS WHEREOF, the parties hereto have executed this Addendum as of the day
and year first above written.
Signed, sealed and delivered in the presence of:
/s/ Kathryn
/s/ Deborah Villa
/s/ Dorothy Yarovone
/s/ Carol B. Stevenson
LANDLORD:
CEN OFFICE BUILDING, LTD.
By: /s/ Stewart Marcus
Stewart Marcus, President
TENANT:
POINT BANK
By: /s/ Richard J. Gray
Richard Gray, Chief Executive Officer
EXHIBIT "A"
Office Lease dated October 8, 1986
Option Agreement in Connection with Office Lease Agreement dated 1987
Lease Modification Agreement dated December 6, 1989
First Amendment to Lease dated October 26, 1992
Second Amendment to Lease dated September 17, 1993
Third Amendment to Lease dated June 20, 1994
Sublease dated March 31, 1995
LEASE
LEASE dated as of July 15, 1992 between KONRAD ULMER, having an address at c/o
Detlef G. Lehnardt, Esq., 4435 Main Street, Suite 840, Kansas City, Missouri
64111 ("Landlord") and POINTE SAVINGS BANK, having an address at 6853 Southwest
18th Street, Boca Raton, Florida 33433 ("Tenant").
Preliminary Statement
Landlord is the owner of that certain building known as 7008 Beracasa Way, Boca
Raton, Florida 33433, containing approximately 18,929 gross square feet of bank,
office and other space and improvements relating thereto (the "Building"),
situate on certain land located in the County of Palm Beach and more
particularly described on Schedule A attached hereto (the "Land"). The Building
and the Land are together herein called the "Premises". Landlord desires to
Lease the Premises to Tenant and Tenant desires to hire the Premises from
Landlord, on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the demise of the Premises and the rents,
covenants and conditions herein set forth, Landlord and Tenant do hereby
covenant, promise and agree as follows:
ARTICLE 1. PREMISES
1.1 Landlord, in consideration of the rents to be paid and the covenants and
agreements to be performed and observed by Tenant, does hereby Lease unto Tenant
and Tenant does hereby hire and take from Landlord the Premises.
ARTICLE 2. TERM OF LEASE
2.1 The term of this Lease shall commence on the date (the "Commencement Date")
which is the later of: (i) September 1, 1992, or (ii) the date on which Landlord
delivers possession of the Premises, and shall end, subject to the provisions of
Section 2.3, on the last day of the 10th "Lease Year", as defined below (the
"Lease Term").
2.2 The term "Lease Year" shall mean each successive period of 12 consecutive
calendar months, commencing on the first day of each September during the Lease
Term. Any portion of the Lease Term which is less than a full Lease Year shall
be deemed a "Partial Lease Year."
2.3 So long as Tenant is not in default at the conclusion of the Lease Term in
the performance of the terms and conditions of this Lease, Tenant shall have the
option to renew this Lease for one five-year renewal period (the "Renewal
Term"), commencing at the expiration of the then current Lease Term, pursuant to
all of the terms, covenants and conditions of this Lease except Tenant shall not
have the right to renew this Lease after the expiration of the Renewal Term, and
the words Lease Term shall thereafter include the Renewal Term. If Tenant shall
desire to exercise the option herein granted, Tenant shall so advise Landlord by
notice no later than September 1, 2001. Any final cancellation or termination of
this Lease shall terminate any right of renewal hereunder.
ARTICLE 3. RENT
3.1 Rent Payment Obligation. Tenant shall pay to Landlord, beginning with the
Commencement Date and throughout the Lease Term, including the Renewal Term if
Tenant exercises its option to renew, the sums set forth in this Article as rent
or additional rent, without prior demand therefor. The term "Rent" shall be
deemed to include "Fixed Rent" (defined below) and all additional undisputed
sums payable by Tenant to Landlord under this Lease ("Additional Rent").
Additional Rent shall constitute Rent payable hereunder with the same effect as
if the same were part of the Fixed Rent and, in the event of the nonpayment by
Tenant of any such Additional Rent, Landlord shall have the same rights and
remedies in respect thereof as Landlord may have in respect of Fixed Rent
(except to the extent reference is specifically made to the term "Fixed Rent").
All Rent shall be paid to Landlord in person or by mail at the Landlord's
address indicated on the first page hereof or to any other place designated by
Landlord upon at least 10 days' prior notice to Tenant. In the event the
Commencement Date shall not be the first day of a calendar month, then the
rental for such month shall be prorated upon a 360 day basis.
3.2 Fixed Rent. Tenant shall pay to Landlord, fixed rent ("Fixed Rent") at the
annual rate set forth below for each Lease Year, in equal monthly installments
of 1/12th thereof, in advance, on the first day of each month, commencing with
the Commencement Date.
<TABLE>
<CAPTION>
Lease Year(s) Annual Rent Monthly Installment
<S> <C> <C>
1 - 1Sept92-30Aug93 $166,575.24 $13,881.27
2 - 1Sept93-30Aug94 199,701.00 16,641.75
3 - 1Sept94-30Aug95 203,486.76 16,957.23
4 - 1Sept95-30Aug96 206,326.08 17,193.84
5 - 1Sept96-30Aug97 222,415.80 18,534.65
6 - 1Sept97-30Aug98 225,255.12 18,771.26
7 - 1Sept98-30Aug99 241,344.72 20,112.06
8 - 1Sept99-30Aug00 244,184.16 20,348.68
9 - 1Sept00-30Aug01 260,273.76 21,689.48
10 - 1Sept01-30Aug02 275,416.92 22,951.41
</TABLE>
Renewal Term
11 to 15-
1Sept02-30Aug07 Renewal Term Rent (defined below)
3.3 Market Rent. The Fixed Rent to be paid during the Renewal Term (the "Renewal
Term Rent") shall be the greater of: 100% of the Fixed Rent payable in the tenth
Lease Year, and the fair market rental for the Premises ("Market Rent"). Market
Rent shall be defined as the rental income for comparable office space located
in Boca Raton, taking into account the use, location, leasehold improvements
provided, rent concessions and age and condition of such comparable office
space. If Landlord and Tenant cannot agree on the amount of Market Rent on or
before 1 October 2001, then Market Rent shall be determined pursuant to the
Dispute Resolution provisions of Article 18. In establishing the Market Rent
(whether established by the parties hereto or by arbitration), all additional
capital improvements made by Tenant after the date of this Lease shall be
excluded from consideration, but any renovations, capital repairs or maintenance
improvements to the Building shall be included. The Dispute Resolution decision
as to the amount of Market Rent shall be binding on the parties.
3.4 Impositions. Tenant shall pay when due and payable, as Additional Rent, all
assessments and other governmental impositions and charges of every kind and
nature, imposed on Tenant, Tenant's property or the business conducted in the
Premises, including without limitation all rent taxes, occupancy taxes, sales
taxes, use taxes, and taxes levied against personal property and trade fixtures
in the Premises.
3.5 Security Deposit. Upon execution of this Lease, Tenant shall deposit with
Landlord the sum of $27,763.00 (the "Deposit") to be held, without interest, as
security for the payment of any monies for which Tenant shall or may become
liable to Landlord under this Lease, and for the faithful performance by Tenant
of all covenants and agreements under this Lease. After a three (3) days notice
of default to Tenant under this Lease, Landlord may apply the Deposit, or any
portion thereof, to any loss or damages resulting from such default. If any of
the Deposit is so applied, Tenant shall pay to Landlord, as Additional Rent, a
sum equal to the amount so applied, which payment shall be added to the Deposit
so that at the amount of the Deposit shall be restored to the sum of $27,763.00.
The Deposit, or any portion thereof as may then be remaining, shall be returned
to Tenant upon the expiration or sooner termination of the Lease Term, provided
Tenant shall not be in default and has vacated the Premises. Nothing in this
Section shall be deemed to limit the amount of any claim, demand or cause of
action of Landlord against Tenant under the provisions of this Lease.
ARTICLE 4. REPAIRS AND MAINTENANCE
4.1 Tenant shall take good care of the Premises. Tenant, at its expense, shall
maintain the Premises in a clean, safe and orderly condition and promptly make
all repairs, ordinary or extraordinary, interior or exterior, structural or
otherwise, in and about the Premises and the Building, as shall be required by
reason of (a) the performance or existence of Tenant's Alterations, (b) the
installation, use or operation of Tenant's Property in the Premises, (c) the
moving of Tenant's Property or any other property owned or being delivered to or
from Tenant in or out of the Building, or (d) the misuse or neglect of Tenant or
any of its employees, agents, invitees or contractors, or Tenant's sublessees,
assignees or licensees or their respective employees, agents, invitees or
contractors. Tenant shall not be responsible, and Landlord shall be responsible,
for any repairs as are required by reason of neglect or other fault of Landlord
or its employees, agents or contractors. Except if required by the neglect or
other fault of Landlord or its employees, agents or contractors, Tenant, at its
expense, shall replace all scratched, damaged or broken doors and glass in or
about the Premises and shall be responsible for all repairs, maintenance and
replacement of wall and floor coverings in the Premises and for the repair and
maintenance of all lighting fixtures therein.
4.2 Landlord, at its expense, shall keep and maintain the Building and its
fixtures, appurtenances, systems and facilities serving the Premises, in working
order, good condition and repair and shall make all repairs, structural and
otherwise, interior and exterior, as and when needed in or about the Premises,
except for those repairs for which Tenant is responsible pursuant to any other
provisions of this Lease.
4.3 Landlord reserves the right to make such changes, alterations, additions,
improvements, repairs or replacements in or to the Building and the fixtures and
equipment thereof, and to erect, maintain and use pipes, ducts and conduits in
and through the Premises, all as Landlord may deem necessary or desirable;
provided, however, that there be no unreasonable obstruction of the means of
access to the Premises or unreasonable interference with the use of the
Premises.
4.4 Landlord shall have no liability to Tenant by reason of any inconvenience,
annoyance, interruption or injury to business arising from Landlord's making any
repairs or changes which Landlord is required or permitted by this Lease, or
required by law, to make in or to any portion of the Building or the Premises,
or in or to the fixtures, equipment or appurtenances of the Building or the
Premises, provided Landlord shall, to the extent it is within the reasonable
control of Landlord, make such repairs or changes in such a way as to minimize
interference with Tenant's use of the Premises.
4.5 Without limiting the foregoing, Landlord shall paint the exterior of the
building one time within six (6) months after Tenant's written request and at
the end of the 10th Lease Year, and shall regularly perform appropriate
landscaping maintenance and refurbishing.
4.6 If Landlord shall default in the observance or performance of Landlord's
obligation under this Lease with respect to any services that are essential to
Tenant's use of the Premises, and if Landlord does not commence to cure such
default promptly after notice thereof from Tenant and thereafter diligently
proceed to complete such cure, then Tenant may take such action as may be
reasonably required to cure such condition or defect and Landlord shall
reimburse Tenant for all expenses reasonably incurred by Tenant in so doing.
ARTICLE 5. ELECTRICITY
5.1 Electric current shall be supplied through the transmission facilities
existing in the Building, to be used by Tenant for the lighting fixtures and
electrical receptacles installed in the Premises, but Landlord shall not be
liable in any way to Tenant for any failure or defect in supply or character of
electric current furnished to the Premises.
5.2 Tenant's use of electric current in the Premises shall not at any time
exceed the capacity of any of the electrical conductors and equipment in or
otherwise serving the Premises. Tenant shall not make or perform or permit the
making or performing of, any alterations to wiring installations or other
electrical facilities in or serving the Premises or any additions to the
business machines, office equipment or other appliances in the Premises which
utilize electrical energy without the prior consent of Landlord in each instance
(which shall not be unreasonably withheld or delayed). Should Landlord grant any
such consent, all additional risers or other equipment required therefor shall
be installed by Tenant, at its cost and expense, as an Alteration to be made in
compliance with this Lease.
5.3 Tenant shall purchase all electric energy used in connection with the
Premises from the utility supplying same on a direct basis and shall promptly
pay when due all charges made in connection therewith.
ARTICLE 6. LANDLORD'S SERVICES
6.1 Landlord, at its expense, subject to the provisions of Section 4.1, shall
maintain and keep in operating condition the heating, ventilating and
air-conditioning systems (the "Systems") so that the Systems shall be able to
furnish heat, ventilating and air-conditioning (collectively, "air-conditioning
service") in the Premises through the Systems, during business hours throughout
the year. Tenant agrees to take reasonable actions whenever required for the
proper and efficient operation of the air-conditioning service.
6.2 Landlord, at its expense, subject to the provisions of Section 4.1, shall
furnish adequate hot and cold water to the Premises, for drinking, lavatory,
lawn watering and maintenance and cleaning purposes. If Tenant uses water for
any other purpose Landlord, at Tenant's expense, shall install meters to measure
Tenant's consumption of water and/or steam, as the case may be. Tenant shall pay
for the quantities of water and/or steam shown on such meters, at Landlord's
cost thereof, on the rendition of Landlord's bills therefor.
6.3 Landlord reserves the right, without any liability to Tenant, except as
otherwise expressly provided in this Lease, to stop service of any of the
heating, ventilating, air conditioning, electric, sanitary, steam, elevator or
other building systems serving the Premises or the rendition of any of the other
services required of Landlord under this Lease, whenever and for so long as may
be necessary, by reason of accidents, emergencies, strikes or the making of
repairs or changes which Landlord is required by this Lease or by law to make or
in good faith deems necessary, by reason of difficulty in securing proper
supplies of fuel, steam, water, electricity, labor or supplies, or by
governmental or quasi-governmental restrictions or by reason of any other cause
beyond Landlord's reasonable control.
ARTICLE 7. TENANT'S OBLIGATIONS
7.1 Janitorial and Garbage Collection. Tenant shall keep the Premises, interior
and exterior, in a clean and orderly condition. Tenant shall maintain its own
janitorial service to the Premises, and Landlord shall pay all garbage dumpster
charges.
7.2 Tenant shall, at its sole cost and expense, exterminate the Premises from
time-to-time, to prevent and eliminate any infestation by vermin and/or other
types of infestations, except Landlord shall be responsible for extermination of
termites from the Building.
ARTICLE 8. ALTERATIONS
8.1 Alterations. Tenant shall have the right to make changes, alterations, or
additions ("Alterations") to the Premises and the Building and improvements
thereon, provided that (a) no structural Alterations are made, (b) no
Alterations are made which, after completion, would reduce the value of the
Premises, or impair the safety or structural soundness of the Premises; and (c)
no substantial change in the Premises is made in the final three Lease Years of
the Lease Term. No other Alterations may be made without Landlord's prior
approval, which approval shall not be unreasonably withheld or delayed.
8.2 Any Alterations that Tenant has a right to make, and any Alterations that
Landlord has approved, shall be made at Tenant's cost and expense, and in making
any such Alterations Tenant shall comply with the following conditions:
(a) No Alterations shall be undertaken until Tenant shall have procured and
paid for, so far as same may be required, all necessary permits and
authorizations of all governmental authorities having jurisdiction.
(b) Prior to making any Alterations which would materially affect the
structural soundness and foundation of the Building, Tenant will submit to
Landlord and Mortgagee (defined below), plans and specifications showing in
detail the proposed work and no such work shall commence until and unless Tenant
shall have received the Landlord's written approval of said plans and
specifications, which approval shall not be unreasonably withheld or delayed. No
Alterations affecting the structure of the Building shall be made except in
accordance with plans, specifications and cost estimates prepared by a licensed
architect and/or engineer selected by Tenant and reasonably approved by
Landlord. Any structural Alterations approved by Landlord shall be performed
under the supervision of such architect and/or engineer.
(c) Before commencing any Alterations, Tenant shall, at its expense, obtain
any necessary or appropriate riders to Tenant's and Landlord's insurance
policies, as appropriate, for fire and extended coverage, comprehensive general
public liability and property damage insurance covering the risks during the
course of such work, naming Landlord and Tenant as insureds.
(d) Any Alterations shall be made promptly in a good and workmanlike manner,
using materials of the same or better quality as those being replaced, and in
compliance with all applicable laws, municipal ordinances, building codes,
permits and requirements of all governmental authorities having jurisdiction,
and of the local Board of Fire Underwriters, if any, and, upon completion,
Tenant shall obtain and deliver to Landlord a copy of the amended Certificate of
Occupancy, if required.
(e) The cost of any Alterations shall be promptly paid so that the Premises
at all times shall be free of liens for labor and materials supplied for the
Alterations. Tenant shall not permit or suffer to be filed or claimed against
the Premises any claim of lien or liens of any kind by any person claiming
under, by, through or against Tenant.
(f) All persons are put upon notice of the fact that Tenant does not have
the power to subject the interest of Landlord in the Premises to any mechanic's
liens. All persons who furnish work, service or materials to the Premises upon
the request of Tenant or any person claiming under, by or through Tenant, must
look to the interest of Tenant and not to that of Landlord. The provisions of
this Section are intended to benef it only Landlord and Tenant and shall not be
deemed to confer rights in favor of any third party.
(g) All Alterations made in or upon the Premises by Tenant shall immediately
belong to Landlord and become part of the Premises, except to the extent of any
movable trade fixtures and equipment of Tenant which may be removed as provided
in Article 19.
(h) Tenant shall indemnify, defend and hold Landlord harmless from and
against any and all injury, loss, claims or damage to any person or property
occasioned by or arising out of any work done by Tenant or its employees, agents
or contractors in making any Alterations.
ARTICLE 9. TENANT'S COVENANTS
9.1 Tenant covenants and agrees:
(a) To procure any licenses and permits required for any use made of the
Premises by Tenant or any subtenant or licensee, and comply with all laws,
ordinances, building and fire codes and to pay all expenses which may be
required in order to so comply.
(b) To permit Landlord and its agents to examine the Premises and to show
the Premises to prospective purchasers during normal business hours as to public
areas (with a prior 24-hour notice as to non-public areas) and, during the last
6 months of the Lease Term, to show the Premises to prospective tenants during
normal business hours. Landlord and its agents shall use reasonable efforts
during any such entry on the Premises to not unreasonably interfere with the
conduct of Tenant's business.
(c) Upon the expiration or termination of this Lease to remove its goods and
effects and those of all persons claiming by, through or under Tenant and to
yield up peaceably to Landlord the Premises in good order, repair and condition
in all respects, damage by fire and casualty, and reasonable wear and tear only
excepted.
(d) To give notice to Landlord, promptly after Tenant learns thereof, of:
(i) any accident in or about the Premises for which Landlord might be liable,
(ii) all fires in the Premises, (iii) defects in the Premises, including the
fixtures, equipment and appurtenances thereof for the repair of which Landlord
might be responsible, and (iv) all damage to or defects in any parts of
appurtenances of the Building sanitary, electrical, heating, ventilating,
air-conditioning, elevator and other systems located in or passing through the
Premises or any part thereof.
ARTICLE 10. USE
The Premises may be used and occupied by Tenant for all office uses and as a
branch banking office, including customary ancillary bank uses, and for no other
purpose.
ARTICLE 11. ASSIGNMENT AND SUBLETTING
11.1 Tenant shall not transfer or assign this Lease or sublet all or any portion
of the Premises without the prior written consent of Landlord, which consent
shall not be unreasonably withheld or delayed. Tenant shall deliver to Landlord
executed counterparts of any instrument of sublease or assignment, together with
counterparts of any other documents evidencing the full agreement with respect
thereto between Tenant and the proposed assignee or subtenant. The use of the
Premises by any permitted assignee or sublessee shall expressly be limited to
the provisions of Article 10. Tenant shall require any permitted assignee to
execute a document to be delivered to Landlord as of the date of such assignment
pursuant to which any such assignee shall expressly assume in favor of Landlord
all of Tenant's obligations hereunder. Notwithstanding any permitted assignment
or subletting, Tenant shall remain fully and primarily liable for the
performance and observance of all the obligations to be performed by Tenant
pursuant to the provisions of this Lease. Landlord's consent to any assignment
or subletting shall not be deemed to be a consent to any other assignment or
subletting.
11.2 (a) Upon each and any subletting of the Premises and thereafter at three
months intervals, Tenant shall deliver to Landlord a statement showing the rent
roll for any sublet space, any amounts paid or to be paid to Tenant in
connection with any such subletting, and any costs reasonably incurred by Tenant
in connection with any such subletting payable to third-parties ("Tenant's
Sublet Costs"). Tenant's Sublet Costs may include, but are, not limited to,
insurance, tenant improvement costs, maintenance and management fees incurred by
Tenant in connection with such subletting. Tenant's "Net Profit" shall be the
excess of the rent and other sums received by Tenant in connection with such
subletting, over Tenant's Sublet Costs. If Tenant shall sublet more than
one-half of the gross rentable square footage of the Building, then Tenant shall
pay to Landlord, as Additional Rent, one-half of Tenant's Net Profit.
(b) Upon each and any assignment of this Lease, Tenant shall pay to Landlord
the excess of all amounts paid to Tenant in connection with such assignment over
Tenant's reasonable costs incurred in connection with such assignment ("Tenant's
Assignment Costs").
(c) Tenant shall reimburse Landlord for any reasonable expenses that may be
incurred by Landlord in connection with any proposed assignment or sublease,
including without limitation, the reasonable costs of investigating the
acceptability of a proposed assignee or subtenant and reasonable legal expenses
incurred in connection with the granting of any requested consent to the
assignment or sublease. Any sums reimbursed to Landlord hereunder shall be
includable in Tenant's Sublet Costs or Tenant's Assignment Costs, as
appropriate.
ARTICLE 12. SIGNS
Tenant may place or install signs in, on or around the Premises, whether
interior or exterior, at its own risk, cost and expense, subject to the terms
and conditions hereof. Notwithstanding the foregoing, no sign shall be installed
on the Premises until all governmental approvals and permits required therefor
are first obtained and all fees pertaining thereto have been paid. Tenant shall
comply with all laws and ordinances of the applicable governmental authorities
with respect to the installation and maintenance of all signs.
ARTICLE 13. INDEMNITY AND INSURANCE
13.1 Tenant shall indemnify, defend and hold Landlord harmless and indemnify
Landlord from and against all injury, loss, cost, claims or damage to any person
or property made in connection with the Premises, except to the extent such
injury, loss, cost, claims or damage is the result of the negligent or willful
act or omission of Landlord.
13.2 Tenant shall maintain in effect throughout the Lease Term comprehensive
general liability insurance covering the Premises and its appurtenances and the
sidewalks fronting thereon in the combined single limit amount of $1,000,000.00.
Such insurance shall specifically insure Tenant against all liability assumed by
it hereunder, as well as liability imposed by law, and shall insure both
Landlord and Tenant but shall be so endorsed as to create the same liability on
the part of the insurer as though separate policies had been written for
Landlord and Tenant. The insurance policy to be provided hereunder shall: (i)
provide that Landlord shall be provided with notice of nonpayment of premiums;
and (ii) be written in a form reasonably satisfactory to Landlord and by
insurance companies satisfactory to Landlord having a "Best" rating of A or
better. Tenant shall pay all of the premiums therefor and deliver such policies,
or certificates thereof, to Landlord, and if Tenant fails either to effect such
insurance in the names herein called for or to pay the premiums therefor or to
deliver such policies or certificates thereof, to Landlord, Landlord shall be
entitled, but shall have no obligation, to obtain such insurance and pay the
premiums therefor, which premiums shall be repayable to Landlord, as Additional
Rent, with the next installment of Fixed Rent. Each insurer mentioned in this
section shall agree, by endorsement on the policy or policies issued by it, or
by independent instrument furnished to Landlord, that it will give Landlord at
least 30 days' written notice before the policy or policies in question shall be
altered or canceled. Landlord agrees that it will not unreasonably withhold its
approval as to the form or to the insurance companies selected by Tenant.
Tenant, and any permitted subtenant, assignee or licensee, shall name Landlord
as an additional insured on any other liability insurance maintained by any of
them with respect to the Premises.
13.3 Landlord will not carry separate insurance of any kind covering the
activities or property of Tenant at the Premises. Tenant shall obtain and
maintain casualty insurance against loss or damage by fire and such other risks
to Tenant's property as are included in so-called "extended coverage"
endorsements (with provisions for deduction of not more than $1,000) in an
amount sufficient to prevent Tenant from being a co-insurer within the terms of
the policy or policies in question and in no event for less than 80% of the
replacement value of Tenant's property, without any deduction being made for
depreciation. Tenant shall require any subtenants, assignees or licensees of
Tenant to obtain and maintain similar insurance on their respective property.
Certificates evidencing compliance with this Section shall be delivered to
Landlord on or before the placement of any such property to be insured in the
Building, and thereafter, certificates of renewal shall be delivered to Landlord
at least 15 days prior to the expiration of the then current policy.
13.4 Tenant shall not violate, or permit the violation of, any condition imposed
by the standard fire insurance policy then issued for office buildings in the
County in which the Premises are located, and shall not do, or permit anything
to be done, or keep or permit anything to be kept in the Premises, which would
subject Landlord to any liability or responsibility for personal injury or death
or property damage, or which would increase the fire or other casualty insurance
rate on the Building or the property therein over the rate which would otherwise
then be in effect or which would result in insurance companies of good standing
refusing to insure the Building or any of such property in an amount reasonably
satisfactory to Landlord.
13.5 (a) Landlord and Tenant shall each endeavor to secure an appropriate clause
in, or an endorsement upon, each fire or extended coverage or rent insurance
policy obtained by it and covering the Building, the Premises or the personal
property, fixtures and equipment located therein or thereon, pursuant to which
the respective insurance companies waive subrogation or permit the insured,
prior to any loss, to agree with a third party to waive any claim it might have
against said third party. The waiver of subrogation or permission for waiver of
any claim herein before referred to shall extend to the agents of each party and
its employees and, in the case of Tenant, shall also extend to all other persons
and entities occupying or using the Premises in accordance with the terms of
this Lease. If and to the extent that such waiver or permission can be obtained
only upon payment of an additional charge then the party benefiting from the
waiver or permission shall pay such charge upon demand, or shall be deemed to
have agreed that the party obtaining the insurance coverage in question shall be
free of any further obligations under the provisions hereof relating to such
waiver or permission.
(b) Subject to the foregoing provisions of this Section 13.4, and insofar as
may be permitted by the terms of the insurance policies carried by it, each
party hereby releases the other with respect to any claim (including a claim for
negligence) which it might otherwise have against the other party for loss,
damages or destruction with respect to its property by fire or other casualty
(including rental value or business interest, as the case may be) occurring
during the term of this Lease.
13.6 If, by reason of any failure of Tenant to comply with the provisions of
this Lease, the rate of fire insurance with extended coverage on the Building or
equipment or other property of Landlord shall be higher than it otherwise would
be, Tenant shall reimburse Landlord, on demand, for that part of the premiums
for fire insurance and extended coverage paid by Landlord because of such
failure on the part of Tenant.
13.7 A schedule or make up of rates for the Building or the Premises, as the
case may be, issued by the Fire Insurance Rating organization or other similar
body making rates for fire insurance and extended coverage for the premises
concerned, shall be conclusive evidence of the facts therein stated and of the
several items and charges in the fire insurance rate with extended coverage then
applicable to such premises.
13.8 Landlord represents that Landlord will maintain for Landlord's benefit
comprehensive general liability and casualty insurance with respect to the
Premises in accordance with good business practices and in such amounts as is
reasonable and customary for comparable commercial properties.
ARTICLE 14. DAMAGE OR DESTRUCTION
14.1 If the Premises shall be partially or totally damaged or destroyed by fire
or other cause, then Tenant shall promptly notify Landlord of such occurrence
("Tenant's Damage Notice"). In such event, whether or not the damage or
destruction shall have resulted from the fault or neglect of Tenant, or its
employees, agents or visitors (and if this Lease shall not have been terminated
as provided below), Landlord shall repair the damage and restore and rebuild the
Building and/or the Premises, at its expense (without limiting the rights of any
insurance company subrogated to Landlord's rights hereunder to seek recovery
from Tenant, and any rights of Landlord under any other provisions of this Lease
or at law or in equity), with reasonable dispatch after the receipt of Tenant's
Damage Notice; provided, however, that Landlord shall not be required to repair
or replace any of Tenant's property, unless such damage is caused by the
negligent or willful act or omission of Landlord and if Tenant's insurance
policies do not contain a waiver of the right of subrogation. Notwithstanding
anything contained herein to the contrary, in no event shall Tenant be relieved
of liability or responsibility for damage or destruction resulting from the
negligence or willful act or omission of Tenant if the insurance policies
carried by Landlord on the Building do not contain a waiver of the right of
subrogation.
14.2 If the Building or the Premises shall be totally damaged or destroyed by
fire or other cause, or if the Building shall be so damaged or destroyed by fire
or other cause as to require a reasonably estimated expenditure of more than 25%
of the full insurance value of the Building immediately prior to the casualty,
then in either such case Landlord may terminate this Lease by giving Tenant
notice to such effect within 60 days after Tenant's Damage Notice. In case of
any damage or destruction mentioned in this Article 14, Tenant may terminate
this Lease by notice to Landlord if Landlord has not completed the making of the
required repairs and restored and rebuilt the Building and the Premises within 9
months from the date of Tenant's Damage Notice or within such period after such
date (not exceeding six months) as shall equal the aggregate period Landlord may
have been delayed in doing so by adjustment of insurance, labor trouble,
governmental controls, act of God, or any other cause beyond Landlord's
reasonable control and such termination shall be effective upon the expiration
of 30 days after the giving of such notice of termination.
14.3 No damages, compensation or claim shall be payable by Landlord for
inconvenience, loss of business or annoyance arising from any repair or
restoration of any portion of the Premises or of the Building. Landlord shall
use its best efforts to effect such repair or restoration promptly and in such
manner as not unreasonably to interfere with Tenant's use and occupancy.
14.4 In the event of the termination of this Lease pursuant to any of the
provisions of this Article 14, this Lease and the term and estate hereby granted
shall expire as of the date of such termination with the same effect as if that
were the date of expiration of the Lease Term, and the Rent payable hereunder
shall be apportioned as of such date.
14.5 If the Building or the Premises shall be partially or totally damaged or
destroyed by fire or other cause, the Rent payable hereunder shall be abated
proportionately, if such damage or destruction was not due to the negligence or
willful act or omission of Tenant.
ARTICLE 15.1 LANDLORD REMEDIES AND SELF-HELP
15.1 If Tenant shall at anytime be in default (i) in the payment of Rent or
other charges herein required to be paid by Tenant for more than 3 days after
notice to Tenant, provided notice shall not be required if default has occurred
more than twice in a Lease Year; or (ii) in the observance or performance of any
of the other covenants and agreements required to be performed and observed by
Tenant hereunder for a period of 30 days after notice to Tenant of such default,
(or if such default shall reasonably take more than 30 days to cure, Tenant
shall not have commenced the same within the 30 days and diligently prosecuted
the same to completion) and Tenant shall not thereafter cure such default; then
Landlord shall be entitled at its election, to exercise concurrently or
successively, any one or more of the following rights:
(a) To bring suit for the collection of the Rent or other amounts for which
Tenant may be in default, or for the performance of any other covenants or
agreement imposed upon Tenant, all without entering into possession or
terminating this Lease;
(b) To elect to declare the entire Rent for the balance of the Lease Term,
or any part thereof, due and payable forthwith, and may proceed to collect the
same by distress or other wise, and thereupon the Lease Term shall terminate at
the option of Landlord except that, to the extent any Rent has been collected in
such fashion, Tenant shall be entitled to remain in possession to the exhaustion
of the period covered by the Rent so collected; or
(c) To re-enter the Premises, by summary proceedings or otherwise, and take
possession thereof, without thereby terminating this Lease, and thereupon
Landlord may expel all persons and remove all property therefrom, and relet the
Premises and receive the rent therefrom, applying the same first to the payment
of the reasonable expenses of such re-entry and the reasonable cost of such
reletting, and then to the payment of the monthly Rent accruing hereunder.
Tenant, whether or not the Premises are relet, shall remain liable for any
deficiency. Landlord shall use reasonable efforts to relet the Premises. The
commencement and prosecution of any action by Landlord in detainer, ejectment or
otherwise, or the appointment of a receiver, or any execution of any decree
obtained in any action to recover possession of the Premises, or any re-entry,
shall not be construed as an election to terminate this Lease unless Landlord
shall, in writing, expressly exercise its election to declare the Lease Term
ended and to terminate this Lease, and, unless this Lease be expressly so
terminated, such re-entry or entry by Landlord, whether had or taken under
summary proceedings or otherwise, shall not be deemed to have absolved or
discharged Tenant from any of its obligations and liabilities for the remainder
of the term of this Lease;
(d) To terminate this Lease by giving at least 3 days' notice thereof to
Tenant, and to re-enter the Premises and take possession thereof. If Landlord
shall elect to terminate this Lease, all rights and obligations of Landlord, and
of any permitted successors or assigns, shall cease, except that Landlord shall
have and retain full right to sue for and collect all rents and other amounts
for the payment of which Tenant shall then be in default, and all damages to
Landlord by reason of such breach, and Tenant shall surrender and deliver up the
Premises to Landlord and upon any default by Tenant in so doing, Landlord shall
have the right to recover possession by summary proceedings or otherwise and to
apply for the appointment of a receiver and for other ancillary relief in such
action, and Landlord shall again have and enjoy the Premises, fully and
completely, as if this Lease had never been made. Tenant hereby expressly waives
any and all rights of redemption granted by or under any present or future laws
in the event of Landlord's obtaining possession of the Premises by reason of the
breach or violation by Tenant of any of the covenants and conditions of this
Lease.
15.2 If Tenant shall default in the performance or observance of any agreement
or condition in this Lease contained on its part to be performed or observed,
other than for the payment of Rent, and shall not cure such default within 30
days after notice from Landlord specifying the default (or, in the event of an
emergency such lesser notice or cure period as may be reasonable under the
circumstances), Landlord may, at its option, without waiving any claim for
damages for breach of agreement, at anytime thereafter cure such default for the
account of Tenant, and any amount paid or any contractual liability incurred by
Landlord in so doing shall be deemed paid or incurred for the account of Tenant
and Tenant agrees to reimburse Landlord therefor together with interest thereon
at the highest legal rate from the date of outlay by Landlord until reimbursed
by Tenant.
ARTICLE 16. CONDEMNATION.
16.1 Total Taking. If the whole of the Premises shall be acquired or taken by
eminent domain for any public or quasi-public use or purpose, then this Lease
and the term herein shall cease and terminate as of the date of title vesting in
the condemnor in such proceedings, and the Rent shall be paid up to the date
that title vests in condemnor, unless the court having jurisdiction over said
proceeding orders otherwise.
16.2 Partial Taking. If any part of the Premises shall be taken as aforesaid,
and such partial taking shall render that portion not so taken as unusable for
the business of Tenant, then this Lease and the term herein shall cease and
terminate as aforesaid. If such partial taking is not extensive enough to render
the Premises unusable for the business of Tenant, then this Lease shall continue
in effect except that Rent shall be reduced in an equitable manner to be agreed
upon by the parties and failing such agreement, to be resolved pursuant to the
Dispute Resolution provisions of Article 16. Upon receipt of the award in
condemnation, Landlord shall, to the extent of the available award, make all
necessary repairs or alterations to the improvements so as to constitute a
complete architectural unit and as may be reasonably satisfactory to Tenant.
After completion of such restoration, any remaining proceeds of such award will
remain the property of Landlord.
16.3 Compensation. Tenant shall have the right to claim from condemnor such
compensation as may be recoverable by Tenant in its own right for moving
expenses and for fixtures and improvements installed by Tenant at its own
expense. All other awards shall belong to Landlord.
ARTICLE 17. QUIET ENJOYMENT
17.1 So long as Tenant pays all of the Fixed Rent and Additional Rent due
hereunder and performs all of Tenant's other obligations hereunder, Tenant shall
peaceably and quietly have, hold and enjoy the Premises subject, nevertheless,
to the obligations of this Lease and, as below provided in this Article, to the
Mortgages.
17.2 (a) This Lease, and all rights of Tenant hereunder, are and shall be
subject and subordinate in all respects to all mortgages which may now or
hereafter affect the Land and/or the Building, whether or not such mortgages
shall also cover other lands and/or buildings, to each and every advance made or
hereafter to be made under such mortgages, and to all renewals, modifications,
replacements and extensions of such mortgages and spreaders and consolidations
of such mortgages. This Section shall be self-operative and no further
instrument of subordination shall be required. The mortgages to which this Lease
is, at the time referred to, subject and subordinate pursuant to this Article
are sometimes called "Mortgages" and the holder of a superior mortgage or the
successor in interest of any such holder at the time referred to is sometimes
called a "Mortgagee". In confirmation of such subordination, Tenant shall
promptly execute and deliver any instrument that Landlord or Mortgagee or any of
their respective successors in interest may reasonably request to evidence such
subordination.
(b) Landlord will use its reasonable efforts to obtain from Mortgagee a
non-disturbance agreement, in such Mortgagee's usual form, for the benefit of
Tenant.
17.3 In the event of any act or omission of Landlord which would give Tenant the
right, immediately or after lapse of a period of time, to cancel or terminate
this Lease, or to claim a partial or total eviction, Tenant shall not exercise
such right (i) until it has given written notice of such act or omission to each
Mortgagee whose name and address shall previously have been furnished to Tenant
in writing, and (ii) unless such act or omission shall be one which is not
capable of being remedied by Landlord or such Mortgagee within a reasonable
period of time, until a reasonable period for remedying such act or omission
shall have elapsed following the giving of such notice and following the time
when such Mortgagee shall have become entitled under such superior mortgage or
superior lease, as the case may be, to remedy the same (which reasonable period
shall in no event be less than the period to which Landlord would be entitled
under this Lease or otherwise, after similar notice, to effect such remedy),
provided such Mortgagee shall with due diligence give Tenant notice of its
intention to, and commence and continue to, remedy such act or omission.
17.4 If a Mortgagee shall succeed to the rights of Landlord under this Lease,
whether through possession or foreclosure action or delivery of a new lease or
deed, then at the request of such party so succeeding to Landlord's rights
(herein sometimes called "successor landlord") and upon such successor
landlord's written agreement to accept Tenant's attornment, Tenant shall attorn
to and recognize such successor landlord as Tenant's landlord under this Lease,
and shall promptly execute and deliver any instrument that such successor
landlord may reasonably request to evidence such attornment. Upon such
attornment this Lease shall continue in full force and effect as, or as if it
were, a direct lease between the successor landlord and Tenant upon all of the
terms, covenants, conditions, agreements and provisions, as are set forth in
this Lease except that the successor landlord shall not:
(a) be liable for any previous act or omission of Landlord under
this Lease,
(b) be subject to any offset, not expressly provided for in this Lease,
which shall have theretofore accrued to Tenant against Landlord, or
(c) be bound by any previous modification of this Lease, not expressly
provided for in this Lease, or by any previous prepayment of more than one
month's Fixed Rent, unless such modification or prepayment shall have been
expressly approved in writing by the Mortgagee through or by reason of which the
successor landlord shall have succeeded to the rights of Landlord under this
Lease.
ARTICLE 18. DISPUTE RESOLUTION
18.1 Either party may request resolution hereunder of any matter in dispute
wherein Dispute Resolution pursuant to this Article is expressly provided in
this Lease as a condition precedent before either party shall seek any other
remedy. To conduct the Dispute Resolution, Landlord and Tenant shall agree to
submit the matter in dispute to a neutral person (the "Mediator") acceptable to
both for resolution pursuant to procedures for mediation of business disputes to
be agreed to by the parties. The parties shall seek the assistance of the Center
for Public Resources, Inc., 336 Madison Avenue, New York, New York 10017 or any
similar or successor institution regarding appropriate procedures and the
selection of a Mediator. Unless agreed to by the parties in writing, any advice
or decision of the Mediator shall not be binding on the parties. The fees and
expenses of the Mediator and all other expenses (not including the attorneys,
fees, witness fees and similar expenses of the parties) of the Dispute
Resolution shall be borne by the parties equally. Both parties agree to use
their best efforts, in good faith, to expeditiously and equitably resolve the
matter in dispute pursuant to this Dispute Resolution procedure.
18.2 If any dispute, claim or controversy remains unresolved 120 days after the
matter has been submitted to Dispute Resolution under this Article, or if 30
days after the Mediator has issued a written resolution of the dispute, the
parties have failed to resolve their dispute in accordance with the Mediator's
written resolution, either party may elect to use other remedies to resolve the
dispute.
ARTICLE 19. BROKERAGE
Tenant covenants, represents and warrants that Tenant has had no dealings or
negotiations with any broker or agent other than Advantage Properties and Grubb
& Ellis (which are representing Landlord) in connection with the consummation of
this Lease, and Landlord shall pay any commission due to either of them in
connection with this Lease. Each of Landlord and Tenant covenants and agrees to
pay, hold harmless and indemnify the other from and against any and all cost,
expense (including reasonable attorneys, fees) or liability for any
compensation, commissions or charges claimed by any broker or agent, other than
the broker set forth in this Article, with respect to this Lease or the
negotiation thereof, arising out of the acts of the indemnitor.
ARTICLE 20. TERMINATION
At termination hereof Tenant may remove all of its personal property, movable
trade fixtures and its equipment provided that Tenant shall make any repairs
occasioned by such removal. The Premises and all other fixtures including all
additions and improvements, including but not limited to, carpeting, blinds,
drapes, light fixtures, air conditioning and heating, shall be surrendered to
the Landlord at termination and shall be in good order and repair, ordinary wear
and tear excepted. To the extent any Alterations by Tenant included the
installation of fixtures which exceeded building standard, Tenant shall either
remove and replace such fixtures with building standard fixtures at the
termination hereof or leave the fixtures so installed by Tenant.
ARTICLE 21. MISCELLANEOUS
21.1 Holding Over. Except to the extent otherwise specifically agreed in writing
between the parties, if Tenant remains in possession after expiration of the
Lease Term, Tenant shall be a Tenant at will, and there shall be no renewal of
this Lease by operation of law.
21.2 Waivers. Any failure of Landlord to enforce rights or seek remedies upon
any default of Tenant shall not prejudice or affect Landlord's rights or
remedies in the event of any subsequent default, and no waiver by Landlord of
any breach of any terms, covenant or condition shall be considered to be a
waiver of any subsequent breach of the same or any other term, covenant or
condition.
21.3 Successors and Assigns. The covenants, terms, conditions and provisions of
this Lease shall be binding upon and inure to the benefit of the parties hereto
and their respective permitted successors and assigns, except when the language
of this Lease expresses a different intent.
21.4 Notices. All notices, consents, approvals, requests and other
communications required or desired to be given hereunder shall be in writing and
shall be given by mailing the same by certified or express mail, return receipt
requested, postage prepaid, and any such notice or other communication shall be
deemed to have been given when mailed. All notices shall be sent to the parties
at their respective addresses first above written, or to such other address as
either party may specify by notice. Following the Commencement Date, notice to
the Tenant shall be send to the Premises.
21.5 Attorney's Fees. The parties hereto agree that in the event either of the
parties hereto are required to institute legal proceedings to enforce any of the
terms, covenants and conditions of this Lease, the prevailing party shall be
entitled to be reimbursed for all reasonable attorneys' fees and disbursements
incurred (including appellate fees and disbursements), as well as court costs.
21.6 Landlord's Signs. For three months prior to the expiration or sooner
termination of the Lease Term, Landlord may post reasonable as to location,
number and design "FOR RENT' signs in or on the exterior and interior of the
Premises.
21.7 Estoppel Certificates. From time-to-time Landlord and Tenant each agree
upon request in writing from the other, to execute a statement in writing
certifying that the Lease is unmodified and is in full force and effect, or if
there have been modifications, that the same is in full force and effect as
modified (stating the modifications), that the other party is not in default in
the performance of its covenants hereunder, or if there have been such defaults
specifying the same, and the dates to which the Fixed Rent and Additional Rent
have been paid.
21.8 Acceptance of Premises. Tenant accepts the Premises in their "as is"
condition, with there being no obligation upon the Landlord to make any repairs
or improvements of any kind or nature whatsoever, except as expressly otherwise
provided in this Lease.
21.9 Except as otherwise expressly provided in this Lease, this Lease and the
obligations of Tenant hereunder shall be in no wise affected, impaired or
excused because Landlord is unable to fulfill, or is delayed in fulfilling, any
of its obligations under this Lease by reason of strike, other labor trouble,
governmental pre-emption or priorities or other controls in connection with a
national or other public emergency or shortages of fuel, supplies or labor
resulting therefrom, or other like cause beyond Landlord's reasonable control.
21.10 Tenant shall look only to Landlord's estate and property in the Premises
for the satisfaction of Tenant's remedies or the collection of a judgment (or
other judicial process) requiring the payment of money by Landlord hereunder,
and no other property or assets of such Landlord shall be subject to levy,
execution or other enforcement procedure for the satisfaction of Tenant's
remedies under or with respect to this Lease, the relationship of landlord and
tenant hereunder or Tenant's use or occupancy of the Premises. In no event, and
under no circumstances, shall Landlord or any officer, employee, agent or
principal (disclosed or undisclosed) of Landlord have any personal liability or
monetary obligation of any kind under or pursuant to this Lease. Any attempt by
Tenant to seek any such personal liability or monetary obligation shall, in
addition to and not in limitation of Landlord's other rights, powers, privileges
and remedies under the terms and provisions of this Lease, immediately vest in
Landlord the unconditional right to cancel this Lease on no less than three
days' prior written notice to Tenant.
21.11 Invalidity of Particular Provisions. If any term or provision of this
Lease or the application hereof to any person or circumstances shall, to any
extent, be invalid or unenforceable, the remainder of this Lease, or the
application of such term or provision to persons or circumstances other than
those as to which it is held invalid or unenforceable, shall not be affected
thereby, and each term and provision of this Lease shall be valid and be
enforced to the fullest extent permitted by law.
21.12 Captions. The captions and sections of this Lease are for convenience only
and are not a part of this Lease and do not in any way limit or amplify the
terms and provisions of this Lease.
21.13 Recording. Neither this Lease nor any memorandum or short form thereof
shall be recorded.
21.14 Abandonment. Should Tenant abandon or vacate the Premises as evidenced by
Tenant's ceasing to occupy the Premises for a period of more than 15 days,
except for reasons beyond Tenant's control such as casualty or condemnation,
then Landlord shall have the option to terminate this Lease at any time after
the Building has been vacant for three months, provided, however, that at the
time of sending such notice the abandonment is continuing. Said termination
shall be effective 10 days after Landlord gives notice to Tenant of its election
to so terminate.
21.15 Insolvency. If Tenant shall become insolvent, or if bankruptcy proceedings
shall be begun by Tenant, or against Tenant and not dismissed within 120 days
after notice to Tenant, Landlord at its option may cancel this Lease. Landlord
may elect to accept Rent from a receiver, trustee or other judicial officer
during the term of their occupancy in their judicial capacity without affecting
Landlord's rights as contained in this Lease, but no receiver, trustee or
referee shall ever have the right, title or interest in or to the above Premises
by virtue of this Lease
21.16 Governmental Approvals. Tenant's obligation hereunder shall be subject to
the approval by the office of Thrift Supervision and the State of Florida
Department of Banking and Finance. Tenant shall use every reasonable effort to
expeditiously prosecute applications for such approval in order to secure such
approval promptly. In no event shall the payment of rent be delayed by a delay
in any approval hereunder. If approval is finally denied, this Lease shall be
deemed void.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the date
first above written.
WITNESSES AS TO LANDLORD: KONRAD ULMER
________________________ By:___________________________
________________________ By:
WITNESSES AS TO TENANT: POINTE SAVINGS BANK
/s/ Dorothy Yacovone By: /s/ Stephen H. Barnett
Dorothy Yacovone Stephen H. Barnett
/s/ Susan E. Dobson
Susan E. Dobson (CORP. SEAL)
SCHEDULE "A"
Parcel II, DEL MAR PLAZA SUBDIVISION #1, according to the Plat thereof as
recorded in Plat Book 41, Page 108 of the Public Records of Palm Beach County,
Florida, less the East 3.00 feet thereof.
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
THIS AGREEMENT, made as of this 15th day of July 1992, among The
Independent Order of Foresters ("Lender"), Konrad Ulmer, an individual
("Lessor" ) and Pointe Savings Bank ("Lessee").
W I T N E S S E T H:
WHEREAS, Lender has previously made a loan to Lessor (the "Loan");
and,
WHEREAS, the Loan is secured by, among other things, a Mortgage,
Security Agreement, Financing Statement and Assignment of Rents (the
"Mortgage") executed by Lessor for the benefit of Lender, creating
a first lien upon that certain tract of real property described on
Exhibit "A" attached hereto (the "Property"), and such other security
agreements, financing statements and assignments as required by Lender
(the Mortgage and all such other security instruments to be referred
to collectively as the "Collateral Documents"); and,
WHEREAS, Lessee is (or will be) in possession of all of the Property
(the "Demised Property"), under and by virtue of a written lease (the
"Lease"), dated as of the 15th day of July, 1992, entered into by
and between Lessor and Lessee; and,
NOW, THEREFORE, for and in consideration of the mutual covenants
herein contained, and other good and valuable considerations, the
receipt and sufficiency of which are hereby expressly acknowledged,
Lender and Lessee hereby agree as follows:
1. Subordination. The Lease and all of Lessee's rights thereunder
(including, without limitation, any option or right of first refusal)
are, shall be and remain and are expressly made, subordinate and inferior
to the Collateral Documents and the liens and security interests created
thereby, regardless of how often or in what manner the Loan, together
with the liens securing the same, and any of the Collateral Documents,
may be increased, renewed, extended or modified.
2. Non-Disturbance. So long as Lessee is not in default in the performance
of any of the terms, covenants or conditions of the Lease on Lessee's
part to be performed, Lessee's possession and occupancy of the Demised
Premises and Lessee's rights and privileges under the Lease shall
not be diminished or interfered with by Lender in the exercise of
any of Lender's rights under the Mortgage.
3. Attornment. In the event of the foreclosure of the lien of the
Mortgage or if the Demised Premises are conveyed to Lender by deed
in lieu of foreclosure, Lessee shall attorn to Lender or the purchaser
upon any such conveyance or foreclosure sale and shall recognize Lender
or such purchaser as Lessor under the Lease and Lender or such purchaser
shall have the same rights and remedies under the Lease as Lessor.
Such attornment shall be effective and self-operative without the
execution of any further instrument on the part of any of the parties
hereto. Lessee agrees, however, to execute and deliver at any time
and from time to time, upon the request of Lender or any such purchaser
(1) any instrument or certificate which, in the reasonable judgment
of Lender or such purchaser may be necessary or appropriate to evidence
such attornment, and (2) an estoppel certificate regarding the status
of the Lease, consisting of statements, if true, (i) that the Lease
is in full force and effect, (ii) the date through which rentals have
been paid, (iii) the date of the commencement of the term of the Lease,
(iv) the nature of any amendments or modifications to the Lease, (v)
that no default, or state of facts, which with the passage of time
or notice would constitute a default, exists on the part of either
party to the Lease, and (vi) the date on which payment of percentage
rentals, if any, are due under the terms of the Lease. Further, from
and after any such attornment, Lender or such purchaser shall be bound
to Lessee under all of the terms, covenants and conditions of the
Lease; provided however, that Lender or such purchaser shall not be
(a) liable for any action or omission of any prior lessor (including
Lessor);
(b) bound by any rent which Lessee might have paid for more than
the current month to any prior lessor (including Lessor);
(C) liable for the return or application of any security deposits
unless Lessor shall have delivered such deposits to Lender or such
purchaser, which obligation Lessor by its signature to this Agreement
expressly confirms;
(d) bound by any amendment or modification of the Lease made without
Lender's written consent, which consent shall not be unreasonably
withheld; or
(e) subject to any offsets or deficiencies which Lessee might be
entitled to assert against any prior lessor (including Lessor).
4. No Diminution of Lessor's Rights. Nothing contained herein is
intended, nor shall it be construed, to abridge or adversely affect
any right or remedy of Lessor under the Lease in the event of default
by Lessee in the performance of any of the terms, covenants or conditions
of the Lease on Lessee's part to be performed.
5. Notices. Any notice or communication required or permitted hereunder
shall be given in writing, sent by United States mail, postage prepaid,
registered or certified mail, or by hand delivery, addressed as follows:
To Lender:
The Independent Order of Foresters
789 Don Mills Road
Don Mills, Ontario
Canada M3C 1T9
Attention: Mortgage Loan Department
To Lessee:
Pointe Savings Bank
6853 Southwest 18th Street
Boca Raton, Florida 33433
To Lessor:
Konrad Ulmer
c/o Detlef G. Lehnardt, Esquire
4435 Main Street, Suite 840
Kansas City, Missouri 64111
or to such other address or in care of such other person as hereafter
shall be designated in writing by the applicable party, and shall
be deemed to have been given as of the date such item is mailed or
delivered as aforesaid.
6. Choice of Law. The validity and construction of this Agreement
shall be governed by the laws of the State of Florida.
7. Modifications. This Agreement may not be modified orally or in
any manner other than by an agreement in writing signed by the parties
hereto or their respective successors in interest. This Agreement
shall inure to the benefit of and be binding upon the parties hereto,
their successors and assigns, and any purchaser or purchasers at foreclosure
of the Demised Premises, and their respective heirs, personal representatives,
successors and assigns.
IN WITNESS WHEREOF, the parties hereto have hereunto caused this
Agreement to be duly executed as of the day and year first above written.
"LENDER"
THE INDEPENDENT ORDER OF
FORESTERS
By: (signature)
Wayne R. Taylor
Assistant Vice President
"LESSOR"
(signature)
Konrad Ulmer
(signature)
Attorney-in-fact
"LESSEE"
POINTE SAVINGS BANK
By: (signature)
STEPHEN H. BARNETT, President
(Name) (Title)
CANADA:
PROVINCE OF ONTARIO:
THE FOREGOING INSTRUMENT was acknowledged before me this 14th day
of September, 1992 by Wayne R. Taylor, as Assistant Vice-President
of The Independent Order of Foresters, a Canadian corporation, on
behalf of the corporation. He is personally known to me or _________
has produced _______ _______________ as identification and did not
take an oath. [Notary, check appropriate blank.]
(signature)
Notary Public
J. Robert Heatley, Notary Public
In and for the Province of Ontario
My Commission is for Life
My Commission Expires:
__________
(Serial Number, if any)
STATE OF Missouri
COUNTY OF Jackson
THE FOREGOING INSTRUMENT was acknowledged before me this __ day of
______. 1992 by Detlef G. Lehnardt as attorney in fact for Konrad
Ulmer, who __ is personally known to me or __ has produced _______
as identification and did not take an oath. [Notary, check appropriate
blank.]
(signature)
Notary Public
Renee C. Becker
(Printed Name of Notary)
My Commission Expires:
_________________
(Serial Number, if any)
RENEE C. BECKER
Notary Public - State of Missouri
Commissioned in Clay County
My Commission Expires April 24, 1996
Seal
STATE OF Florida
COUNTY OF Palm Beach
THE FOREGOING INSTRUMENT was acknowledged before me this 17 day
of August, 1992 by Stephen H. Barnett as President of Pointe Savings
Bank, on behalf of the Savings and Loan Association. He is personally
known to me or _____ has produced __________ as identification and
did not take an oath. [Notary, check appropriate blank.]
(Signature)
Notary Public
SUSAN E. DOBSON
(Printed Name of Notary)
My Commission Expires: CC 158606
(Serial Number, if any)
NOTARY PUBLIC, STATE OF FLORIDA,
MY COMMISSION EXPIRES: Nov. 6, 1995.
BONDED THRU NOTARY PUBLIC UNDERWRITERS
WKI:glp
081092:10339
AUGUST 25, 1992
The Independent Order of Foresters
789 Don Mills Road
Don Mills, Ontario
Canada M3C 1T9
Attention: Mortgage Loan Department
Re: Lease dated July 15, 1992
Ladies and Gentlemen:
The undersigned ("Tenant") has executed and entered into that certain
lease agreement (the "Lease") dated July 15, 1992 with Konrad Ulmer
as landlord ("Landlord"), which Lease is attached hereto as Exhibit
"A" and made a part hereof for all purposes, with respect to certain
space (the "Premises") in the office building located at 7008 Beracasa
Way, Boca Raton (the "Building") in Palm Beach County, Florida. Tenant
understands that Konrad Ulmer, the owner of the Building and of the
Lessor's interest in the Lease, borrowed funds (the "Loan") from The
Independent order of Foresters ("Lender"), repayment of which Loan
is secured by the above-referenced property.
1. With respect to the Lease and the above-referenced Loan, Tenant
represents and warrants to Lender as follows:
(a) A true and correct copy of the Lease is attached hereto as Exhibit
"A". The Lease is in full force and effect and has not changed except
as indicated on Exhibit "A".
(b) Tenant is to occupy the Premises, which covers 18,929 square
feet of rentable area, on or about September 1, 1992. The commencement
date of the term of the Lease is September 1, 1992, and the Lease
will expire on August 31, 2002, except that Tenant has the option
to extend lease term for one additional five (5) year period, unless
it is sooner terminated as provided for in the Lease.
(c) The Lease represents the entire agreement between Landlord and
Tenant relating to the Premises, and specifically, Tenant is not permitted
any rent holiday, rental concession, rebate of rent, or other offset
or credit against rents except as provided for in the Lease.
(d) Landlord has complied with all of its construction and other
obligations under the Lease to this date, and Tenant is fully obligated
to pay, and is paying, the rent and other charges due thereunder,
and is fully obligated to perform, and is performing, all of the other
obligations of Tenant under the Lease without right of counterclaim,
offset, or defense.
(e) Tenant's current annual base rent is $166,575.24 per year, payable
in monthly installments of $13,881.27. Tenant has made all rent payments
due under the Lease through ___________ . To Tenant's knowledge (i)
neither Landlord nor Tenant is in default in any respect under the
Lease, and (ii) no condition exists, which with the passage of time
or the giving of notice, or both, would constitute a default under
the Lease.
*rental payments do not commence until September 1, 1992.
(f) There are no actions, whether voluntary or involuntary, pending
under the United States Bankruptcy Code in which Tenant is a "debtor"
or in which, if Tenant is a partnership, any general partner of Tenant
is a "debtor."
(g) Tenant has not made any prepayment of rent or other charges
in advance except for the monthly payments for the current month or
payment of rent for the next ensuing month. Tenant will not pay rent
for more than one month in advance without Lender's prior written
consent.
(h) No security or other deposit has been paid by Tenant with respect
to the Lease except: $27,763.00.
(i) Tenant does not know of any assignment, hypothecation, or pledge
of the Lease or of the rentals thereof, other than the Assignment
(hereinafter defined).
(j ) Tenant has no option to renew the Lease except as provided
for therein. Tenant has no option or right of first refusal to purchase
the Premises or the Building, or any part thereof.
(k) The Lease is fully subordinated to all mortgages or deeds of
trust affecting the Premises or the Building.
2. Tenant acknowledges that Landlord has executed an assignment
(the "Assignment") of Landlord's interest in the Lease to Lender in
connection with the Loan, and that Lender will rely upon this instrument
in connection with the Loan. Tenant agrees to attorn to Lender and
to perform all of Tenant's obligations as lessee under the Lease,
including, without limitation, the payment of rent, directly to Lender
as lessor under the Lease from and after the date, if any, that Lender
requests Tenant to do so.
3. If and when Tenant notifies Landlord of a default or claimed
default by Landlord under the Lease, Tenant shall send a copy of the
written notice or a written explanation of any oral notice (the "Notice")
concurrently therewith to Lender at the address stated below, by certified
or registered mail, postage prepaid, return receipt requested. Lender
shall be permitted to remedy any such default or claimed default specified
in the Notice within an equal period of time, commencing on the date
Lender receives or is deemed to have received such notice, that Landlord
would be permitted to remedy same pursuant to the Lease. Notwithstanding
the foregoing provisions of this paragraph 3, Lender shall have a
minimum of thirty (30) days after its receipt of the Notice to remedy
the default or claimed default; provided, however, where such a default
cannot be remedied with reasonable diligence by Lender within thirty
(30) days, Lender shall have such additional time as is reasonably
necessary to remedy the default with reasonable diligence and continuity.
Furthermore, if a default can be reasonably remedied only by Lender's
first obtaining possession of the Building, Lender shall have any
additional time as is reasonably necessary under the circumstances
to obtain possession of the Building and such time thereafter to remedy
the default with reasonable diligence and continuity. The provisions
of this paragraph 3 shall continue in full force and effect until
Tenant has received notice to the contrary from Lender.
The name and address of Lender shall, unless changed, be as follows:
The Independent Order of Foresters
789 Don Mills Road
Don Mills, Ontario
Canada M3C 1T9
Attention: Mortgage Loan Department
With a copy to:
Anderson & Orcutt, P.A.
Landmark Centre
401 East Jackson Street
Suite 2400
Tampa, Florida 33602
Attention: William Kent Ihrig, Esquire
Lender shall have the right to change its address for notices to
it by giving Tenant written notice of the change.
4. Tenant agrees not to enter into any agreement with Landlord purporting
to change or terminate the Lease without Lender's joinder and prior
written consent. Tenant agrees that any attempted change to or termination
of the Lease made without Lender's joinder and prior written consent
shall be void and of no force or effect.
5. This instrument shall be binding upon Tenant and Landlord and
their respective heirs, executors, legal representatives, successors,
and assigns and shall inure to the benefit of the successors and assigns
of Lender.
6. The person executing this instrument on behalf of Tenant is authorized
to do so.
7. Tenant acknowledges and agrees that Lender may rely and is relying
on this letter for all purposes.
EXECUTED on August 25, 1992.
TENANT:
POINTE SAVINGS BANK
By: (signature)
Title: President
Konrad Ulmer, Landlord, joins in the execution of this instrument
for the purposes of confirming the facts set forth above and to acknowledge
and consent to paragraph 4 above.
LANDLORD:
(signature)
Konrad Ulmer
(signature)
Attorney-in-fact
EXHIBITS: "All" - Lease
WKI:glp:(1)072392:10345
LEASE AGREEMENT
THIS LEASE AGREEMENT, dated January 23,1995 (this"Lease"), is by and between
HOLLYWOOD ASSOCIATES VI, a Florida general partnership, (herein called
"Lessor"), whose address is 4601 Ponce de Leon Blvd., Suite 300, Coral Gables,
Florida 33146, and Pointe Bank, it Florida state chartered bank (herein called
"Lessee"), whose address is 21845 Powerline Road, Boca Raton, Florida 33433,
whereby in consideration of the mutual covenants contained herein, and in
recognition by both parties hereto of the proposed Flyover planned by the State
of Florida, Department of Transportation in close proximity to the Premises (the
"DOT Flyover"), the parties agree to the following terms and conditions:
LEASE AGREEMENT
Section 1.1. Lease of Premises and Condition.
In consideration of the rents and covenants herein stipulated to be paid and
performed by Lessee and upon the terms and conditions herein specified, Lessor
hereby leases to Lessee, and Lessee hereby leases from Lessor, the premises (the
"Premises") consisting of:
(a) that parcel of land more particularly described in Schedule
A attached hereto and made a part hereof (the "Land") having an address
at 2690 N.E. 203rd Street, Miami, Dade County, Florida;
(b) all of the buildings, structures, fixtures, facilities, installations
and other improvements of every kind and description now or hereafter
in, on, over and under the land, and all plumbing, gas, electrical,
ventilating, lighting and other utility systems, ducts, hot water
heaters, domestic water systems, canopies, signs, air conditioning
systems and all other building systems, and fixtures, attached to
or comprising a part of the buildings (collectively, the "Improvements");
and
(c) all of the Lessor's right, title and interest, if any, in and to all
easements, rights-of-way, appurtenances, and other rights and benefits
associated with the Land, and to all public or private streets, roads,
avenues, alleys, or passways, open or proposed, on or abutting the Land,
(all of the foregoing being included within the term "Land").
The Premises are leased to Lessee in their present condition without
representation or warranty by Lessor, except as specifically provided herein.
Lessee takes the Premises in "As Is" and "Where Is" condition, as of the time
Lessee takes possession of the Premises, and waives any and all claims against
Lessor as to the condition of the Premises, except as set forth herein. At the
time Lessee takes possession under this Lease, title to the Premises shall be
vested in Lessor. In the event Lessor has not obtained title to the Premises
prior to June 1, 1995, this Lease shall automatically terminate and the Rental
Deposit and Security Deposit shall be returned to the Lessee and the parties
shall be released from all further obligations hereunder.
At least five (5) business days prior to delivering possession of the Premises
to Lessee, Lessor shall deliver to Lessee, at Lessor's expense, (i) a survey
(the "Survey") of the Premises showing and certifying the exact location and
legal descriptions of the Premises and meeting the minimum technical standards
of the Florida Board of Land Surveyors and the State of Florida Department of
Professional Regulation; and (ii) an environmental Phase I report,
("Environmental Report") of the Premises prepared by ViroGroup, Inc. specifying
that there are no Regulated Substances (as hereinafter defined) present on the
Premises and no further studies or action is required. Notwithstanding the
foregoing, the parties acknowledge that the Environmental Report will make no
investigation as to the presence of asbestos on the Premises. The Survey shall
also show and certify: (i) the location of all improvements and easements and
rights-of-way affecting the Premises, and (ii) the location of all roadways
adjacent to the Premises. Lessee shall have five (5) business days from receipt
of the Survey and five (5) business days from receipt of the Environmental
Report to review the Survey and/or Environmental Report. In the event Lessee is
not satisfied with the Survey and/or Environmental Report, in Lessee's
reasonable discretion, Lessee may terminate this Lease by providing written
notice to Lessor prior to the expiration of each of the foregoing five (5)
business day periods, in which event the Rental Deposit and Security Deposit
shall be returned to Lessee, whereupon the parties shall be released from all
further obligations hereunder, except only those obligations which are expressly
intended to Survive such termination.
Section 1.2. Use.
Lessee may use the Premises for any lawful purpose, provided that such use shall
not constitute a nuisance.
Section 1.3. Term.
(a) This Lease shall be for a primary term of five (5) years (the
"Primary Term"), beginning on March 1, 1995 (as may be delayed as
provided in subparagraph (b) below), and ending at midnight on February
28, 2000 (as may be extended as provided in subparagraph (b) below).
The time period during which this Lease shall actually be in effect,
including the Primary Term and any Extended Term (as defined in Section
1.4) for which the right to extend is exercised, as any of the same
may be terminated prior to their scheduled expiration pursuant to
the provisions hereof, is sometimes referred to herein as the "Lease
Term".
(b) The parties acknowledge that the Premises are currently occupied
and that such occupant is scheduled to vacate the Premises on or before
February 8, 1995. In the event the current occupant fails to timely
vacate the Premises, the beginning of the Primary Term may be delayed
as set forth below. Lessor shall use its best efforts in causing such
occupant to vacate the Premises, including, without limitation, filing
any necessary lawsuit. Lessor shall provide written notice to Lessee
of the date such occupant actually vacates the Premises. The beginning
of the Primary Term shall be the later of March 1, 1995 or two weeks
from the date such occupant vacates the Premises. In the event the
Primary Term begins after March 1, 1995, the end of the Primary Term
shall be adjusted so that the Primary Term shall be a period of five
(5) years. In the event the Lessor is unable to remove such occupant
from the Premises and deliver exclusive possession to Lessee prior
to June 1, 1995 this Lease shall automatically terminate and the Rental
Deposit and the Security Deposit shall be returned to Lessee.
(C) If the construction of the and/or completed DOT Flyover restricts
the current existing access to the Premises, Lessee shall have six
(6) months from the date access is so restricted to terminate this
Lease, without penalty, by providing Lessor with written notice of
its intention to terminate on the next rental payment date which occurs
not less than thirty (30) days after the delivery of such notice (the
"Access Termination Date"). Upon payment by Lessee of all Basic Rent
(as herein defined), additional rent and other sums then due and payable
hereunder to and including the Access Termination Date, this lease
shall terminate on the Access Termination Date and the parties shall
be released from all further obligations hereunder, except with respect
to obligations and liabilities of Lessee and/or Lessor hereunder,
actual or contingent, which have arisen on or prior to the Access
Termination Date or which are expressly intended to survive such
termination.
(d) The Lessee has the right to terminate this Lease effective,
after twenty-four (24) months after commencement of the Primary Term;
if Lessee provides Lessor with written notice of its intention to
terminate no later than the end of the twentieth month after commencement
of the Primary Term, in which event the parties shall be released
from all further obligations hereunder, except with respect to obligations
and liabilities of Lessee and/or Lessor hereunder, actual or contingent,
which have arisen on or prior to the twenty-fourth (24) month after
commencement of the Primary Term or which are expressly intended to
survive such termination.
(e) Lessor and Lessee acknowledge that Basic Rent (as defined in 1.5(a) below)
as set forth for the Primary Tenn does not represent Fair Market Rental (as
defined in 1.5(d) below), and, in fact, is less than Fair Market Rental,
but has been negotiated by the parties cognizant of the uncertainties
regarding the proposed DOT Flyover and the uncertainty relating to the
timing of the DOT Flyover.
Section 1.4. Options To Extend the Primary Term.
Unless an Event of Default as defined herein has occurred and is continuing at
the time any option is exercised, Lessee shall have the right and option to
extend the Lease Term for one (1) additional period of five (5) years,
commencing at midnight on the day on which the Primary Term of this Lease
expires (an "Extended Term"), unless this Lease shall expire or be terminated
pursuant to any provision hereof. Lessee shall exercise its option to extend the
Lease Term for an Extended Term by (a) giving written notice of intent thereof
to Lessor at any time not less than nine (9) months prior to the expiration of
the then existing term (which notice of intent will not extend the then existing
term of this Lease but will obligate the parties to begin the determination of
Fair Market Rental of the Premises for the Extended Term pursuant to Subsection
1.5(d)) and then (b) by delivering to Lessor a written instrument of exercise of
option no later than four (4) months prior to the expiration of the then
existing term and after the Fair Market Rental of the Premises for the Extended
Term has been determined as provided in Subsection 1.5(d), provided, that if
such Fair Market Rental has not been so determined at least twenty (20) days
prior to the date by which Lessee must deliver such instrument of exercise
despite the diligent efforts of all parties to obtain such determination, Lessee
shall have an additional twenty (20) days after such determination within which
to make such delivery.
Upon the delivery of the written instrument of exercise referred to in
subparagraph (b) of the immediately preceding sentence, the Lease Term shall be
automatically extended for the Extended Term on the terms and conditions
provided herein. Upon the written request of Lessor or Lessee the parties hereto
will, exchange an instrument setting forth the extension of the Lease Term in
accordance with this Section 1.4.
Section 1.5. Rent.
(a) During the Primary Term, Lessee shall pay the amounts set forth
in Schedule B, and during the Extended Term, the amount determined
in accordance with subsection 1.5(d), to Lessor, in immediately available
funds as basic rent for the Premises ("Basic Rent"), at the address
set forth on page 1 of this Lease or pursuant to such other written
instructions or to such other person as Lessor from time to time may
designate in writing. Lessor shall give Lessee not less than fifteen
(15) days written notice of any change in the instructions to which
such payments are to be made. Such rental payments shall be payable
in equal monthly installments in advance on the first day of each
month. Any rental payment made in respect of a period which is less
than one month shall be pro-rated by multiplying the then applicable
monthly rental by a fraction, the numerator of which is the number
of days in such month with respect to which rent is being paid and
the denominator of which is the total number of days in such month.
Lessee shall perform all its obligations under this Lease at its sole
cost and expense, and shall pay all Basic Rent, additional rent and
any other sum due hereunder when due and payable, without notice or
demand.
(b) Lessor shall have the option to adjust Basic Rent to Fair Market
Rental (as determined under Section 1.5(d) below) by so notifying
Lessee in writing and providing Lessee with satisfactory evidence
that the Department of Transportation has abandoned the DOT Flyover
(such written notification and such satisfactory evidence shall be
collectively referred to herein as the "Notification"). Such Notification
may be delivered to Lessee at any time during the Primary or Extended
Lease Term, but, notwithstanding anything contained herein to the
contrary, there shall be no adjustment of Basic Rent prior to the
twenty-fifth (25th) month of this Lease nor prior to six (6) months
after Notification from Lessor. The adjustment to Basic Rent shall
be effective and commence with the monthly installment due thirty
(30) days after the determination of Fair Market Rental is completed
under the provisions of Section 1.5(d) below subject to the provisions
of the preceding sentence. If the adjustment of Basic Rent to Fair
Market Rental is unacceptable to Lessee, Lessee shall have the option
to terminate this Lease by so notifying Lessor, in writing, not later
than thirty (30) days after the determination of Fair Market Rental
is completed. Lessee's termination shall be effective on the next
rental payment date which occurs not less than ninety (90) days after
Lessor receives Lessees notice of termination (the "Rent Adjustment
Termination Date") in which event Lessee shal continue to pay Basic Rent,
without adjustment, until the Rent Adjustment Termination Date.* This
Lease will not terminate prior to the end of the twenty-fourth (24th)
month of the Lease Term. Upon payment by Lessee of all Basic Rent,
additional rent and other sums due and payable hereunder to and including
the Rent Adjustment Termination Date, this lease shall terminate on the
Rent Adjustment Termination Date, and the parties shall be released from
all further obligations under this Lease except with respect to
obligations and liabilities of Lessee and/or Lessor hereunder, actual or
contingent, which have arisen on or prior to the Rent Adjustment
Termination Date or which are expressly stated to survive the termination
of this Lease.
* In the event lessee elects to terminate this lease in accordance
with this Section 1.5(b),
(c) During all Extended Terms hereof if any, Lessee shall pay to
Lessor as Basic Rent for the Premises, without any prior demand therefor,
an amount equal to Fair Market Rental (as hereinafter defined) but
in no event shall the annual Basic Rent for the Extended Term be an
amount less than the Basic Rent paid in the final year of the immediately
preceding term. Such amount shall be payable in equal monthly installments
in advance on the first day of each month during such Extended Term
in the same manner as in the Primary Term.
(d) The term "Fair Market Rental" as used herein shall mean, in
amount equivalent to the then current fair market rate of rentals
received in the general market area in which the Premises are located
for a similar period, of buildings of comparable characteristics,
including, but not limited to, comparable lease terms (with consideration
of an effective rental rate reflecting the period of the Extended
Term or the applicable period remaining in the Primary Term or Extended
Term), age, condition, use and classification. Following delivery
of the applicable notice of intent as provided above, the Fair Market
Rental shall be determined mutually by Lessor and Lessee within thirty
(30) days after the receipt of the applicable notice of intent or,
if the parties are unable to mutually determine the Fair Market Rental
then, by the following procedure: Not more than fifteen (15) days
after the expiration of the foregoing thirty (30) day period, Lessee
and Lessor shall each designate, in writing, one appraiser to determine
such Fair Market Rental. In the event either party fails to so select
its own appraiser, the other party may obtain court appointment of
an appraiser. The two appraisers shall meet and select a third appraiser
within twenty (20) days after their individual appointments. In the
event the two appraisers fail to so select a third appraiser, either
party may obtain court appointment of such third appraiser. Each appraiser
shall independently determine the Fair Market Rental for the Premises
and complete and forward to Lessor and Lessee their separate appraisal
reports within forty-five (45) days after the selection of the third
appraiser. The three appraisals shall be averaged and the arithmetic
mean shall be the Fair Market Rental. All appraisers shall be members
in good standing of the American Institute of Real Estate Appraisers
or any organization succeeding thereto and have had not less than
ten ( 10) years' experience with commercial real estate of the type
of the Premises, in the location where the Premises are located. Lessor
and Lessee shall each be responsible for the cost of the appraiser
selected by that party and shall equally share the cost of any third
appraiser or mutually selected appraiser.
(e) Upon execution of this Lease, Lessee shall deposit in the trust account of
Greenberg Traurig, et al. as escrow agent, the sum of $3,195.00 as one
month's rental deposit including all sales tax thereon (the "Rental
Deposit") to be paid to Lessor at the time of delivery to Lessee of
exclusive possession of the Premises. Such amount shall be applied to the
first month's rent.
(f) Upon execution of this Lease, Lessee shall deposit in the trust
account of Greenberg Traurig, et al. as escrow agent, the sum of
$6,390.00, as security for Lessee's full and faithful performance of its
obligations hereunder (the "Security Deposit") to be paid to Lessor at the
time of delivery to Lessee of exclusive possession of the Premises. Lessor
will return same to Lessee within thirty (30) days following the end
of the Lease Term or the earlier termination of this Lease, provided
that Lessee is not then in default. If an Event of Default (as defined
in Section 7.1 below) shall occur the Security Deposit then held by
Lessor may be applied by Lessor to cure all or a portion of such default,
(without Lessor's waiving any other remedies it may have in law or
in equity) and Lessee will redeposit the full amount of the Security
Deposit within five (5) days after Lessor's written demand.
(g) The escrow agent shall not be liable for any actions taken in
good faith, but only for its gross or willful negligence. The parties
hereby indemnify and hold the escrow agent harmless from and against
any loss, liability, claim or damage whatsoever (including reasonable
attorney's fees and court costs at trial and all appellate levels)
the escrow agent may incur or be exposed to in its capacity as escrow
agent hereunder except for gross negligence or willful misconduct.
If there be any dispute as to disposition of any proceeds held by
the escrow agent pursuant to the terms of this Lease, the escrow agent
is hereby authorized to interplead said amount or the entire proceeds
with any court of competent jurisdiction and thereby be released from
all obligations hereunder. The parties recognize that the escrow agent
is the law firm representing Lessee, and hereby agree that such law
firm may continue to represent Lessee in any litigation pursuant to
this Lease. The escrow agent shall not be liable for any failure of
the depository.
Section 2.1. Maintenance and Repair.
(a) Lessee, at its own expense, will maintain all parts of the Premises
in the condition which exists at the time the Premises are delivered
to Lessee, subject to normal wear and tear and the provisions of Section
6.1 of this Lease and will take all action and will make all structural
and nonstructural, foreseen and unforeseen and ordinary and extraordinary
changes and repairs which may be required to maintain all parts of
the Premises in such condition (including, but not limited to, all
painting, glass, utilities, conduits, fixtures and equipment, foundation,
roof, exterior walls, heating and air conditioning systems, wiring,
plumbing, sprinkler systems and other utilities, and all paving, sidewalks,
roads, parking areas, curbs and gutters and fences on the Premises,
and to the extent Lessor is responsible, off the Premises, except
to the extent such items are to be maintained by third party governmental
agencies and are not the responsibility of Lessor). Lessor shall not
be required to maintain, repair or rebuild all or any part of the
Premises. Lessee waives the right to require Lessor to maintain, repair
or rebuild all or any part of the Premises, or make repairs at the
expense of Lessor pursuant to any Legal Requirement (as defined in
Section 5.2(b)), agreement, covenant, condition or restriction at
any time.
(b) If all or any part of the Improvements constructed by Lessee,
if any, shall encroach upon any property, street or right-of-way adjoining
or adjacent to the Premises, or shall violate the agreements or conditions
affecting the Premises or any part thereof, or shall hinder, obstruct
or impair any easement or right-of- way to which the Premises are
subject, then, promptly after written request of Lessor (unless such
encroachment, violation, hindrance, obstruction or impairment is a
Permitted Exception) or of any person so affected, Lessee shall, at
its expense, either (i) obtain valid and effective waivers or settlements
of all claims, liabilities and damages resulting therefrom or (ii)
if Lessor consents thereto, make such changes, including alteration
or removal, to the improvements and take such other action as shall
be necessary to remove or eliminate such encroachments, violations,
hindrances, obstructions or impairments.
Section 2.2. Alterations, Replacements and Additions.
Lessee may, at its expense, make additions to and alterations of the
Improvements, and construct additional Improvements, provided that (i) the fair
market value of the Premises shall not be lessened thereby, (ii) such work shall
be expeditiously completed in a good and workmanlike manner and in compliance
with all applicable Legal Requirements and the requirements of all insurance
policies required to be maintained by Lessee hereunder, (iii) no material
structural alterations shall be made to the Improvements or demolitions
conducted in connection therewith unless Lessee shall have first furnished
Lessor with such surety bonds or other security acceptable to Lessor as shall be
necessary in Lessor's opinion to assure rebuilding of such improvements, and
(iv) no structural additions, replacements or alterations, which cost in excess
of $25,000.00 shall be made unless Lessor's prior written consent shall have
been obtained. All structural additions and alterations of the Premises, without
consideration by Lessor, shall be and remain part of the Premises and the
property of Lessor and shall be Subject to this Lease.
Section 3.1. Severable Property.
Lessee may, at its expense, install, assemble or place on the Premises, and
remove and substitute any items of machinery, equipment, furniture, furnishings,
trade fixtures or other personal property used or useful in Lessee's business
(the "Severable Property"), and title to same shall remain in Lessee.
Section 3.2. Removal.
Lessee shall remove the Severable Property at the expiration of or within thirty
(30) days following the prior termination of this Lease (in which event Lessee
shall continue to pay Basic Rent for such thirty (30) day period) unless an
Event of Default has occurred and is continuing. Any of Lessee's Severable
Property not removed by Lessee prior to the expiration of the Lease or thirty
(30) days after an earlier termination shall be considered abandoned by Lessee
and may be appropriated, sold, destroyed or otherwise disposed of by Lessor
without obligation to account therefore. Lessee will repair at its expense all
damage to the premises caused by the removal of Lessee's Severable Property,
whether effected by Lessee or Lessor, unless such damage is caused by the gross
negligence or willful misconduct of Lessor.
Section 4. Transfer or P1edge by Lessor.
Lessor shall be free to transfer its fee interest in the Premises or any part
thereof or interest therein, subject, however, to the terms of this Lease.
Provided the transferee assumes the Lessor's obligations under this Lease, any
such transfer shall relieve the transferor of all liability and obligation
hereunder (to the extent of the interest transferred) accruing after the date of
the transfer. Lessor shall be free to pledge or mortgage its interest in the
Premises and this Lease on the condition that either (i) this Lease shall be
superior to such pledge or mortgage, or (ii) if this Lease is to be subordinate
to the mortgage of any lender of Lessor that Lessee receives a nondisturbance
agreement reasonably acceptable to Lessee from the holder of such pledge or
mortgage. Lessee agrees to make such reasonable modifications to this Lease as
may be requested by Lessor's lender, if any, provided that such modifications do
not increase Lessee's obligations or increase the rent due hereunder. Lessor
shall deliver to Lessee a non-disturbance agreement from any existing mortgagee
prior to delivery of possession of the Premises.
Section 5.1. Net Lease.
This lease is a net lease and, any present or future law to the contrary
notwithstanding, shall not terminate except as otherwise expressly provided
herein, nor shall Lessee be entitled to any abatement or reduction, set-off,
counterclaim, defense or deduction with respect to any Basic Rent, additional
rent or other sums payable hereunder, except as provided in this Lease. Nothing
contained in this Section 5.1 shall be deemed to be a waiver by Lessee of any
rights that it may have to bring a separate action with respect to any default
by Lessor hereunder or under any other agreement. The parties intend that the
obligations of Lessee hereunder shall be separate and independent covenants and
agreements from the covenants and agreements of Lessor hereunder and shall
continue unaffected unless such obligations shall have been modified or
terminated pursuant to all express provision of this Lease.
Section 5.2. Taxes and Assessments Compliance With Law.
(a) Lessee shall pay, prior to delinquency: (i) all ad valorem,
real property and personal property taxes, assessments, levies, fees,
water and sewer rents and charges, and all other governmental charges,
general and special, ordinary and extraordinary, foreseen and unforeseen,
which are, at any time prior to or during the Primary Term or the
Extended Term hereof, imposed or levied upon or assessed against or
which arise with respect to (A) the Premises, (B) any Basic Rent,
additional rent or other sums payable hereunder, (C) this Lease or
the leasehold estate hereby created, or (D) the operation, possession
or use of the Premises; (ii) all sales, value added, use and similar
taxes at any time levied, assessed or payable on account of the leasing,
operation, possession or use of the Premises; and (iv) all charges
of utilities, communications and similar services serving the Premises.
Lessee shall not be required to pay any franchise, estate, inheritance,
transfer, income, capital gains or similar tax of Lessor. Lessee will
furnish to Lessor, promptly after written demand therefor, proof of
payment of all items referred to above which are payable by Lessee.
If any such assessment may legally be paid in installments, Lessee
may pay such assessment in installments; in such event, Lessee shall
be liable only for installments which become due and payable with
respect to any tax period occurring in whole or in part during the
Lease Term hereof; provided, however, that all amounts referred to
in this Section 5.2(a) for the fiscal or tax year in which the Lease
Term shall expire shall be apportioned so that Lessee shall pay those
portions thereof which correspond with the portion of such year as
are within the Lease Term hereby demised.
(b) Lessee shall comply with and cause the Premises to comply with
and shall assume all obligations and liabilities with respect to (i)
all laws, ordinances and regulations, and other governmental rules,
orders and determinations presently in effect or hereafter enacted,
made or issued, whether or not presently contemplated (collectively,
"Legal Requirements") applicable to the Premises or the ownership,
operation, use or possession thereof and (ii) all contracts, insurance
policies (including, without limitation, to the extent necessary to
prevent cancellation thereof and to insure full payment of any claims
made under such policies), agreements, covenets, conditions and
restrictions now or hereafter applicable to the Premises or the ownership,
operation, use or possession thereof including, but not limited to, all
such Legal Requirements, contracts, agreements, covenants, conditions and
restrictions which require structural, unforeseen or extraordinary
changes; provided, however, that with respect to any of the obligations
of Lessee in clause (ii) above which are not now in existence, Lessee
shall not be required to so comply unless Lessee is either a party
thereto or has given its written consent thereto, or unless the same
is occasioned by Legal Requirements or Lessee's default (including
any failure or omission by Lessee) under this Lease. Nothing in clause
(ii) of the immediately preceding sentence shall modify the obligations
of Lessee under Section 5.4 of this Lease.
(c) If required by a person or entity holding a mortgage on the
Premises, or if at any time there shall have occurred an Event of
Default (as defined in Section 7.1 hereof) or if any fact exists which
with the giving of notice or the passage of time or both would constitute
an Event of Default, then upon request of Lessor, Lessee shall in
addition to and concurrently with the payment of Basic Rent as required
in subsection 1.5(a) hereof pay one-twelfth (1/12th) of the amount
(as estimated by Lessor, but if required by a mortgagee, not to exceed
any amount required by such mortgagee) of the annual taxes and assessments
described in subsection 5.2(a) hereof and the annual premiums for
insurance required in Section 6.2 hereof next becoming due and payable
with respect to the Premises, and Lessee shall also pay to Lessor
on demand therefore the amount by which the actual taxes and assessments
and insurance premiums exceed the payment by Lessee required in this
subsection. Lessor shall not be considered a fiduciary with respect
to any amounts paid to or received by it pursuant to the term of this
subsection and shall not be liable for the payment of interest on
all or part of such funds. In the event Lessee is required to make
payments to Lessor pursuant to the conditions set forth herein, Lessee's
obligation for such payments (adding any deficiency and subtracting
any overpayment caused by an error in an estimate) shall be deemed
satisfied and Lessor shall be responsible for seeing that such amounts
are used to satisfy the outstanding obligations for which such amounts
were paid so as to take advantage of the maximum available discount,
so long as Lessee has made adequate funds available. In the event
the funds paid by Lessee exceed the amount of real estate taxes due,
or any portion of real estate taxes paid by Lessee are refunded by
the taxing authority, Lessor will be obligated to refund such amounts
to Lessee.
(d) Notwithstanding anything contained herein to the contrary, in the event
there is no requirement to make payments to satisfy obligations under
Section 5.2(a) pursuant to paragraph (c) above, Lessee shall satisfy all
obligations required under Section 5.2(a) on or before the applicable due
date (currently March 31) as if there was no contest of such obligation
(whether or not a contest is in fact pursued).
Section 5.3. Liens.
Lessee will within thirty (30) days after receipt of written notice thereof,
remove and discharge any charge, lien, security interest or encumbrance upon the
Premises or upon any Basic Rent, additional rent or other sums payable,
hereunder which arises for any reason, including, without limitation, all liens
which arise out of Lessee's possession, use, occupancy, construction, repair or
rebuilding of the Premises or by reason of labor or materials furnished or
claimed to have been furnished to Lessee or for the Premises, but not including
(i) any liens and encumbrances set forth in Schedule A, (ii) this Lease, and
(iii) any mortgage, charge, lien, security interest or encumbrance created or
caused by Lessor or its agents, employees or representatives without the consent
of Lessee. Nothing contained in this Lease shall be construed as constituting
the consent or request of Lessor, express or implied, to or for the performance
by any contractor, laborer, materialman or vendor, of any labor or services or
for the furnishing of any materials for any construction, alteration, addition,
repair or demolition of or to the Premises or any part thereof. Notice is hereby
given that Lessor will not be liable for any labor, services or materials
furnished or to be furnished to Lessee, or to anyone holding an interest in the
Premises or any part thereof through or under Lessee, and that no mechanic's or
other liens for any such labor, services or materials shall attach to or affect
the interest of Lessor in and to the Premises.
Section 5.4. Indemnification.
Lessee shall defend all actions against Lessor, any partner, officer, director,
employee, agent, representative and shareholder of Lessor and the holder of any
mortgage On the Premises (collectively, "Indemnified Parties"), with respect to,
and shall pay, protect, indemnify and save harmless the Indemnified Parties from
and against, any and all liabilities, losses, damages, costs, expenses
(including, without limitation, reasonable attorneys' fees and expenses,
including at trial and on all appeals), causes of action, suits, claims, demands
or judgments of any nature arising from (i) injury to or death of any person, or
damage to or loss of property, on the Premises or any adjoining sidewalks,
streets or ways, or connected with the use, condition or occupancy of any
thereof, (ii) Lessee's violation of this Lease, (iii) use, act or omission of
Lessee or its agents, contractors, licensees, sublessees or invitees during the
Lease Term or during Lessee's presence at, use or occupancy of the Premises
prior to or after the Lease Term and (iv) any contest referred to in Section 5.5
of this Lease. Notwithstanding the foregoing, this indemnity shall not apply if
such damages and/or liabilities are caused by the gross negligence or willful
misconduct of Lessor. The indemnity contained in this Section 5A shall survive
the expiration or earlier termination of this Lease.
Section 5.5. Permitted Contests.
Lessee, at its expense, may contest, by appropriate legal proceedings conducted
in good faith and with due diligence, any Legal Requirement with which Lessee is
required to Comply pursuant to Section 5.2(b), or the amount or validity or
application, in whole or in part, of any tax, assessment or charge which Lessee
is obligated to pay or any lien, encumbrance or charge not permitted by Sections
2.1, 2.2, 5.3 and 6.1, provided that: (i) the commencement of such proceedings
shall suspend the enforcement or collection thereof against or from Lessor and
against or from the Premises, (ii) neither the Premises nor any rent therefrom
nor any part thereof or interest therein would be in any danger of being sold,
forfeited, attached or lost, (iii) Lessee shall have furnished such security, if
any, as may be required in the proceedings (iv) if such contest be finally
resolved against Lessee, Lessee shall pay prior to delinquency the amount
required to be paid, together with all interest and penalties accrued thereon,
and (v) such contest shall not cause Lessor to be in default under any mortgage
or deed of trust encumbering the Premises nor shall such contest subject Lessor
to the risk of any civil or criminal liability. Lessor, shall execute and
deliver to Lessee such authorizations and other documents as reasonably may be
required in any such contest and shall cooperate with Lessee in good faith. Any
reasonable out of pocket expenses incurred by Lessor as a result of such
cooperation shall be paid by Lessee. Lessee shall indemnify and save Lessor
harmless against any cost or expense of any kind that may be imposed upon Lessor
in connection with my such contest and any loss resulting therefrom. Lessee
shall not be in default hereunder in respect to the compliance with any Legal
Requirement with which Lessee is obligated to comply pursuant to Section 5.2(b)
or in respect to the payment of any tax, assessment or charge which Lessee is
obligated to pay or any lien, encumbrance or charge not permitted by Section
2.1, 2.2, 5.3 and 6.1 which Lessee is in good faith contesting. Notwithstanding
anything contained herein to the contrary, no mortgage placed on the Premises
will prohibit Lessee contesting the real estate tax assessment.
As previously set forth in Section 1.3(d) above, Lessor and Lessee acknowledge
that Basic Rent is materially less than Fair Market Rental. Basic Rent will not
be used or offered as a fair market rent in determining the fair market value of
the Premises, including, but not limited to, in any determination made relative
to Permitted Contests allowed under this Section 5.5.
Section 5.6. Environmental Compliance.
(a) For purposes of this Lease,
(i) the term "Environmental Laws" shall mean and include the Resource
Conservation and Recovery Act, as amended by the Hazardous and Solid
Waste Amendments of 1984, the Comprehensive Environmental Response,
Compensation and Liability Act, the Hazardous Materials Transportation
Act, the Toxic Substance Control Act, the Federal Insecticide, Fungicide
and Rodenticide Act and all applicable state and local environmental
laws, ordinances, rules, requirements, regulations and publications,
as any of the foregoing may have been or may be from time to time
amended, supplemented or supplanted, and any and all other federal,
state or local laws, ordinances, rules, requirements, regulations
and publications, now or hereafter existing, relating to the preservation
of the environment or the regulation or control of toxic or hazardous
substances, pollutants, contaminants or other materials; and
(ii) the term "Regulated Substance" shall mean and include any, each and all
Substances or materials now or hereafter regulated pursuant to any
Environmental Laws, including but not limited to any such substance or
material now or hereafter defined as or deemed to be a "regulated
substance", "pesticide", "hazardous substance" or "hazardous waste", or
included in any similar or like classification or categorization,
thereunder.
(b) Lessee shall
(i) not cause or permit any Regulated Substance to be placed, held, located,
released, transported or disposed of on, under, at or from the Premises in
violation of Environmental Laws or to otherwise adversely affect the
Premises during the Lease Term or during Lessee's presence at, use or
occupancy of the Premises prior to or after the Lease Term;
(ii) contain at or remove from the Premises, or perform any other necessary or
desirable remedial action regarding, any Regulated Substance in any way
affecting the Premises if, as and when such containment, removal or other
remedial action is required under any Legal Requirement and was caused by
the actions or inactions of Lessee and, if so required, shall perform such
containment, removal or remediation in compliance with all Legal
Requirements; at Lessee's sole cost and expense.
(iii)provide Lessor with written notice (and a copy as may be applicable) of
any of the following within five (5) clays thereof: (A) Lessee's obtaining
knowledge or notice of any kind of the presence, or any actual or
threatened release, of any Regulated Substance in any way affecting the
Premises; (B) Lessee's receipt or submission, or Lessee's obtaining
knowledge or notice of any kind, of any report, citation, notice or other
communication front or to any federal, state or local governmental or quasi
governmental authority regarding any Regulated Substance in any way
affecting the Premises; or (C) Lessee's obtaining knowledge or notice of
any kind of the incurrence of any cost or expense by any federal, state or
local governmental or quasi governmental authority or any private party in
connection with the assessment, monitoring, containment, removal or
remediation of any kind of any Regulated Substance in any way affecting the
Premises, or of the filing or recording of any lien on the Premises or any
portion thereof in connection with any such action or Regulated Substance
in any way affecting the Premises.
(c) Lessor shall
(i) contain at or remove from the Premises, or perform any other necessary or
desirable remedial action regarding, any Regulated Substance in any way
affecting the Premises if, as and when such containment, removal or other
remedial action is required under any Legal requirement and was not caused
by the actions or inactions of Lessee and, if so required, shall perform
such containment, removal or remediation in compliance with all Legal
Requirements; at Lessor's sole cost and expense.
(ii) provide Lessee with written notice (and a copy as may be applicable) of any
of the following within five (5) clays thereof: (A) Lessor's obtaining
knowledge or notice of any kind of the presence, or any actual or
threatened release, of any Regulated Substance in any way affecting the
Premises; (B) Lessor's receipt or submission, or Lessor's obtaining
knowledge or notice of any kind, of any report, citation, notice or other
communication from or to any federal, state or local governmental or quasi
governmental authority regarding any Regulated Substance in any way
affecting the Premises; or (C) Lessor's obtaining knowledge or notice of
any kind of the incurrence of any cost or expense by any federal, state or
local governmental or quasi governmental authority or any private party in
connection with the assessment, monitoring, containment, removal or
remediation of any kind of any Regulated Substance in any way affecting the
Premises, or of the filing or recording of any lien on the Premises or any
portion thereof in connection with any such action or Regulated Substance
in any way affecting the premises.
Section 5.7. Representations Warranties and Covenants of Lessee.
(a) Lessee represents and warrants to, and covenants with Lessor that:
(i). Due Organization. Lessee is a corporation duly formed and validly
existing under the laws of its jurisdiction of organization and is
duly qualified to do business in each jurisdiction in which such
qualification is necessary to the conduct of its business.
(ii). Due Authorization. The execution, delivery and performance by Lessee of
this Lease have been duly authorized by all necessary actions and
proceedings by or on behalf of Lessee and no further approvals or filings
of any kind, including, without limitation, any approval of or filing
with any governmental agency or body, are required as a condition to the
valid execution and delivery or the performance by Lessee of this Lease.
(iii). Valid and Binding Obligations. This Lease has been duly executed and
delivered and constitutes a legal, valid and binding obligation of Lessee
enforceable against Lessee in accordance with its terms. Lessee's
execution of this Lease and compliance with its terms and conditions will
not conflict with or cause a violation of any laws, regulations or orders
of which it or its assets are subject nor will it cause a breach or
violation of any document or agreement of which it or its assets are
subject.
(b) Lessor represents and warrants to, and covenants with, Lessee that:
(i). Title. At the time Lessee takes possession of the Premises, Lessor shall
be vested with good, marketable and insurable fee simple title to the
Premises subject only to the Permitted Exceptions as provided on Schedule
"A", none of which shall prohibit, restrict or impair the Premises for
their permitted uses. Lessor hereby agrees to defend the title to the
Premises against the lawful claims of all persons whomsoever throughout
the Lease Term.
(ii). Due Authorization. The execution, delivery and performance by Lessor of
this Lease have been duly authorized by all necessary actions and
proceedings by or on behalf of Lessor and no further approvals or filings
of any kind, including, without limitation, any approval of or filing
with any governmental agency or body, are required as a condition to the
valid execution and delivery or the performance by Lessor of this Lease.
(iii). Valid and Binding Obligations. This Lease has been duly executed and
delivered and constitutes a legal, valid and binding obligation of Lessor
enforceable against Lessor in accordance with its terms. Lessor's
execution of this Lease and compliance with its terms and conditions will
not conflict with or cause a violation of any laws, regulation or orders
of which it or its assets are subject nor will it cause a breach or
violation of any document or agreement of which it or its assets are
subject.
(iv). Zoning Compliance. To the best of Lessor's knowledge and without any
inquiry having been made by Lessor, all Improvements were permitted,
conforming structures under applicable zoning and building laws and
ordinances in effect when the Improvements were constructed and the
intended use thereof as a bank branch office is a permitted, conforming
use under applicable zoning and building laws and ordinances.
(v). Environmental Compliance. Lessor has requested, but as of the
date of execution hereof, has not received, a Phase I Environmental
Report. Lessor has made no other inquiries whatsoever as to the
environmental condition of the Premises. Lessor is not aware of any
environmental issues related to the Premises at the time of execution of
this Lease.
(vi) Legal Requirements. At the time Lessee takes possession of the Premises,
Lessor shall be in compliance with all Legal Requirements of which a
violation would cause Lessee to lose possession of the Premises.
(c) The foregoing representations and warranties by Lessee and Lessor shall
be true and correct as of the beginning of the Primary Term and shall
survive the expiration and/or earlier termination of this Lease.
Section 6.1. Condemnation and Casualty.
(a) General Provisions. Lessee hereby irrevocably assigns to Lessor
any award, Compensation as defined herein, or insurance payment to
which Lessee may become entitled by reason of Lessee's interest in
the Premises (i) if the access, use, occupancy or title of the Premises
or any part thereof, is taken, requisitioned or sold in, by or on
account of any actual or threatened eminent domain proceeding or other
action by any person or entity having the power of eminent domain
("Condemnation") or (ii) if the Premises or any part thereof are damaged
or destroyed by fire, flood or other casualty ("Casualty"). All awards,
compensation, severance damages, business damages, and insurance payments
on account of any actual or threatened Condemnation or Casualty are
herein collectively called "Compensation". Lessor may appear in any
such proceeding or action as the real party in interest to negotiate,
prosecute and adjust any claim for any Compensation, and Lessor shall
collect any such Compensation. Lessee shall not be entitled to participate
in any such proceeding, action, negotiation, prosecution or adjustment.
Lessee shall not be entitled to make any separate claim for compensation
for Lessee's moving and relocation expenses, anticipated loss of business
profits, loss of goodwill or fixtures and equipment paid for by Lessee
except in rebuilding the Premises pursuant to 6.1(d) below. Nothing
herein shall preclude Lessor from making any such claim as the assignee
of Lessee's interest therein. Lessor and Lessee agree and stipulate
that no part of any Compensation shall be distributed to Lessee and
that there shall be no apportionment of any such Compensation. All
Compensation shall be applied pursuant to this Section 6.2, and all
such Compensation (less the reasonable expense of collecting such
Compensation) is herein called the "Net Proceeds".
Notwithstanding the foregoing, Lessee shall have the option, but not the
obligation, to purchase, at Lessee's sole cost, business interruption
insurance for its own account ("Business Interruption Insurance").
(b) Substantial Condemnation. If a Condemnation shall, affect all
or a substantial portion of the Premises or shall render the Premises
unsuitable for restoration within one hundred twenty days (120) for
continued use and occupancy in Lessee's business as a bank branch
office or shall inhibit access as it currently exists, then Lessee
may, not later than thirty (30) days after such Condemnation, deliver
to Lessor notice of its intention to terminate this Lease on the next
rental payment date which occurs after the delivery of such notice
(the "Condemnation nation Termination Date"). Upon payment by Lessee
of all Basic Rent, additional rent and other sums then due and payable
hereunder to and including the date of such taking, this Lease shall
terminate on the Condemnation Termination Date and the parties shall
be released from all further obligations hereunder except with respect
to obligations and liabilities of Lessee and/or Lessor hereunder,
actual or contingent, which have arisen on or prior to the Condemnation
Termination Date or such obligations which are stated to survive such
termination, and the Net Proceeds shall belong to Lessor. Notwithstanding
the foregoing, the provisions of Section 1.3(c) shall govern any
termination of the Lease due to the DOT Flyover.
(c) Substantial Casualty. If an insured Casualty shall, in Lessee's
good faith judgment, affect all or a substantial portion of the Premises
or shall render the Premises unsuitable for restoration within one
hundred twenty (120) days for continued use and occupancy in Lessee's
business, then Lessee may, not later than thirty (30) days after such
Casualty, deliver to Lessor (i) notice of its intention to terminate
this Lease on the next rental payment date which occurs after the
delivery of such notice (the "Casualty Termination Date"), and (ii)
a certificate of an authorized officer of Lessee describing the event
giving rise to such termination and stating that Lessee has determined
that such Casualty has rendered the Premises unsuitable for restoration
within one hundred twenty (120) days for continued use and occupancy
in Lessee's business, Upon payment by Lessee of all Basic Rent, additional
rent and other sums then due and payable hereunder to and including
the date the Casualty occurred , this Lease shall terminate on the
Casualty Termination Date and the parties shall be released from all
further obligations hereunder except with respect to obligations and
liabilities of Lessee and/or Lessor hereunder, actual or contingent,
which have arisen on or prior to the Casualty Termination Date or
which are stated to survive such termination, and the Net Proceeds
shall belong to Lessor.
(d) Less Than Substantial Condemnation or Casualty. Notwithstanding
anything to the contrary contained herein, if, after a Condemnation
or Casualty, Lessee does not have the right to give notice of its
intention to terminate this Lease as provided in Subsections 6.1 (b)
or (c), then this Lease shall continue in full force and effect and
Lessee shall, at its expense, rebuild, replace or repair the Premises
in conformity with the requirements Of Subsections 2.1, 2.2 and 5.3
so as to restore the Premises (in the case of Condemnation, as nearly
as practicable) to the condition, character and fair market value
thereof immediately Prior to such Casualty or Condemnation. During
the period reasonably required to perform the restoration, Basic Rent
shall be abated provided that Lessor receives equivalent payment from
the Loss of Rents insurance policy described in Section 6.2(vi). Prior
to any such rebuilding, replacement or repair, Lessor and Lessee shall
agree on the maximum cost thereof (the "Restoration Cost"). The
Restoration Cost shall be paid first out of Lessee's own funds to the
extent that the Restoration Cost exceeds the Net Proceeds payable in
connection with such occurrence, after which expenditure Lessee shall be
entitled to receive the Net Proceeds, but only against (i) certificates of
Lessee delivered to Lessor from time to time as such work of rebuilding,
replacement and repair progresses, each such certificate describing
the work for which Lessee is requesting payment and the cost incurred
by Lessee in connection therewith and stating that Lessee has not
theretofore received payment for such work and (ii) such additional
documentation as Lessor may reasonably require, including, but not
limited to, copies of contracts and subcontracts relating to restoration,
architects' certifications, title policy updates and lien waivers
or releases. Any Net Proceeds remaining after final payment has been
made for such work and after Lessee has been reimbursed for any portions
it contributed to the Restoration Cost shall be retained by Lessor.
In the event of any temporary Condemnation, this Lease shall remain
in full effect and Lessor shall be entitled to receive the Net Proceeds
allocable to such temporary Condemnation provided, however, that if
such temporary Condemnation renders the Premises untenantable for
the operation of Lessee's business, Basic Rent shall be abated until
the Premises become tenantable for the operation of Lessee's business.
If the cost of any rebuilding, replacement or repair required to be
made by Lessee pursuant to this subsection 6.2(d) shall exceed the
amount of such Net Proceeds, the deficiency shall be paid by Lessee.
Section 6.2. Insurance.
(a) Lessee will maintain insurance on the Premises of the following character:
(i) Insurance against all risks of direct physical loss, including loss by
fire, lightning and other risks which at the title are included under
"extended coverage" endorsements, in amounts sufficient to prevent Lessor
and Lessee from becoming a coinsurer of any loss but in any event in
amounts not less than 100% of the actual replacement value of the
Improvements, exclusive of foundations and excavations;
(ii) General public liability insurance against claims for bodily injury, death
or property damage occurring on, in or about the Premises and adjoining
streets and sidewalks, in the minimum amounts of $3,000,000 for bodily
injury or death to any one person, $3,000,000 for any one accident and
$1,000,000 for property damage to others or in such greater amounts as are
then Customary for property similar in use to the Premises;
(iii)Worker's compensation insurance (including employers' liability insurance,
if requested by Lessor) to the extent required by the law of the state in
which the Premises are located and to the extent necessary to protect
Lessor and the Premises against Lessee's workers' compensation claims;
(iv) Explosion insurance in respect of any boilers and similar apparatus located
on the Premises in the minimum amount of $500,000 or in such greater
amounts as are then customary;
(v) During any period of construction on the Premises; builder's risk insurance
on a completed value, non-reporting basis for the total cost of such
alterations or improvements, and workers' compensation insurance as
required by applicable law;
(vi) Loss of Rents insurance for the benefit of Lessor for a twelve month period
in the event Lessee terminates the Lease due to a Casualty, or Basic Rent
is abated due to a Casualty; and
(vii)Such other insurance in such amounts and against such risks as is commonly
obtained in the case of property similar in use to the Premises and located
in the state in which the Premises are located, including, but not limited
to, flood insurance (if the Premises is in a flood plain).
Such insurance shall be written by companies of nationally recognized
financial standing legally qualified to issue such insurance and
satisfactory to Lessor, and shall name Lessor as insured party and include
Lessee as its interest may appear. If the Premises or any part thereof
shall be damaged or destroyed by Casualty, and if the estimated cost of
rebuilding, replacing or repairing the same shall exceed $25,000, Lessee
promptly shall notify Lessor thereof.
(b) Every such policy shall bear an endorsement in favor of the
Lessor and the mortgagee or beneficiary (whether one or more, the
"Mortgagee") under each mortgage, deed of trust or similar security
instrument creating a lien on the interest of Lessor in the Premises
(whether one or more, the "Mortgage"), and any loss under any such
policy shall be payable to the Lessor or Mortgagee which has a first
lien on such interest (if there is more than one first Mortgagee,
then to the trustee for such Mortgagees) to be held and applied pursuant
to Section 6.1. Every policy referred to in Subsection 6.2(a) shall
provide that it will not be cancelled or amended except after thirty
(30) days' written notice to Lessor and the Mortgagee and that it
shall not be invalidated by any act or negligence of Lessor, Lessee
or any person or entity having an interest in the Premises, nor by
occupancy or use of the Premises for purposes more hazardous than
permitted by such policy, nor by any foreclosure or other proceedings
relating to the Premises, nor by change in title to or ownership of
the Premises.
(c) Lessee shall deliver to Lessor and Mortgagee originals of the
applicable insurance policies or original or duplicate certificates
of insurance, reasonably satisfactory to Lessor and Mortgagee, evidencing
the existence of all insurance which is required to be maintained
by Lessee hereunder and payment of all premiums therefor, such delivery
to be made (i) prior to taking of possession of the Premises and (ii)
at least 30 days prior to the expiration of any such insurance. Lessee
shall not obtain or carry separate insurance concurrent in form or
contributing in the event of loss with that required by this Section
6.2 unless Lessor is named insured therein, and unless there is a
mortgagee endorsement in favor of Mortgagee with loss payable as provided
herein. Lessee shall immediately notify Lessor whenever any such separate
insurance is obtained and shall deliver to Lessor and Mortgagee the
policies or certificates evidencing the same. Any insurance required
hereunder may be provided under blanket policies provided that the
Premises are specified therein.
(d) The requirements of this Section 6.2 shall not be construed to negate or
modify Lessee's obligations under Section 5.4 and Section 5.6. Section 7.1.
Default Provisions.
(a) Any of the following occurrences or acts shall constitute an Event of
Default under this Lease:
(i) If Lessee shall (1) fail to pay any Basic Rent, additional rent
or other sum, as and when required to be paid by Lessee here under
and such failure shall continue for three (3) days following written
notice from Lessor of such failure; or (2) fail to observe or perform
any-other provision hereof and such nonmonetary failure shall continue
for thirty (30) days after written notice to Lessee of such failure
(provided, that in the case of any such failure which cannot be cured
by the payment of money and cannot with diligence be cured within
such thirty (30) day period, if Lessee shall commence promptly to
cure the same and thereafter prosecute the curing thereof with diligence,
the time within which such failure may be cured shall be extended
for such period not to exceed one hundred twenty (120) days as is
necessary to complete the curing thereof with diligence);
(ii) If Lessee shall file a petition in bankruptcy or for reorganization or for
an arrangement pursuant to any federal or state law, or shall be
adjudicated a bankrupt or become insolvent or shall make in assignment for
the benefit of creditors or shall admit in writing its inability to pay its
debts generally as they become due, or if a petition proposing the
adjudication of Lessee as a bankrupt or its reorganization pursuant to any
federal or state bankruptcy law or my similar federal or state law shall be
filed in any court and Lessee shall consent to or acquiesce in the filing
thereof or such petition shall not be discharged or denied within ninety
(90) days after the filing thereof; or
(iii)If the Premises shall have been left unoccupied (except with respect to
any permitted construction or reconstruction) and unattended for a period
of ninety (90) days;
(b) If an Event of Default shall have happened and be continuing, Lessor shall
have the right to give Lessee notice of Lessor's termination of the Lease
Term. Upon the giving of such notice, the Lease Term and the estate hereby
granted shall expire and terminate on such date as fully and completely and
with the same effect as if such date were the date herein fixed for the
expiration of the Lease Term, and all rights of Lessee hereunder shall
expire and terminate, but Lessee shall remain liable as hereinafter
provided.
(c) If an Event of Default shall have happened and be continuing,
Lessor shall have the immediate right, whether or not the Lease Term
shall have been terminated pursuant to Subsection 7.1(b), to re-enter
and repossess the Premises and the right to remove all persons and
property therefrom by summary proceedings, ejectment, any other legal
action or in any lawful manner Lessor determines to be necessary or
desirable. Lessor shall be under no liability by reason of any such
re-entry, repossession or removal. No such re-entry, repossession
or removal shall be construed as an election by Lessor to terminate
the Lease Term unless a notice of such termination is given to Lessee
pursuant to Subsection 7.1(b) or unless such termination is decreed
by a court.
(d) If an Event of Default shall have happened and be continuing, Lessor shall
have the right to declare the balance of the entire Rent for the entire
Lease Term to be immediately due and payable (in which event Lessor may
then proceed to collect all of the unpaid Basic Rent, additional rent or
other sums payable by distress or otherwise), and/or pursue any other
remedy afforded by law or equity.
(e) All expenses and costs incurred by the Lessor including reasonable
attorneys' fees and court costs, at trial and all appellate levels, in
connection with enforcing this Lease, shall be included as additional rent
and shall be payable on demand.
(f) Any termination of this Lease shall apply to any extension or renewal of
the Lease Term and to any right or option on the part of the Lessee that
may be contained in this Lease or any other agreement. All rights and
remedies granted in this Lease to Lessor or available at law or equity
shall be cumulative and not mutually exclusive.
(g) At any time or from time to time after a re-entry, repossession
or removal pursuant to Subsection 7.1(c), whether or not the Lease
Term shall have been terminated pursuant to Subsection 7.1(b), Lessor
may (but shall be under no obligation to) relate the Premises for
the account of Lessee, in the name of Lessee or Lessor or otherwise,
without notice to Lessee, for such term or terms and on such conditions
and for such uses as Lessor, in its absolute discretion, may determine.
Lessor may collect any rents payable by reason of such reletting.
Lessor shall not be liable for any failure to relet the Premises or
for any failure to collect any rent due upon any such reletting.
(h) No expiration or termination of the Lease Term pursuant to Subsection
7.I(b), by operation of law or otherwise, and no re-entry, repossession or
removal pursuant to subsection 7.1(c) or otherwise, and no reletting of the
Premises pursuant to Subsection 7.1(d) or otherwise, shall relieve Lessee
of its liabilities and obligations hereunder, all of which shall survive
such expiration, termination, re-entry, repossession, removal or reletting.
Section 7.2. Additional Rights of Lessor.
(a) No right or remedy hereunder shall be exclusive of any other
right or remedy, but shall be cumulative and in addition to any other
right or remedy hereunder or now or hereafter existing. Failure to
insist upon the strict performance of any provision hereof or to exercise
any option, right, power or remedy contained herein shall not constitute
a waiver or relinquishment thereof for the future. Receipt by Lessor
of any Basic Rent, additional rent or other sums payable hereunder
with knowledge of the breach of any provision hereof shall not constitute
waiver of such breach, and no waiver by Lessor of any provision hereof
shall be deemed to have been made unless made in writing. Lessor shall
be entitled to injunctive relief in case of the violation, or attempted
or threatened violation (beyond applicable notice and grace periods,
if any), of any of the provisions hereof, or to a decree compelling
performance of any of the provisions hereof, or to any other remedy
allowed to Lessor by law or equity.
(b) Lessee hereby waives and surrenders for itself and all those
claiming under it, including creditors of all kinds, (i) any right
and privilege which it or any of them may have to redeem the Premises
or to have a continuance of this Lease after termination of Lessee's
right of occupancy by order or judgment of any court or by any legal
process or writ, or under the terms of this Lease, or after the
termination of the Lease Term as herein provided, (ii) the benefits of any
law which exempts property from liability for debt or for distress for
rent and (iii) Lessee specifically waives any rights of redemption
or reinstatement available by law, or any successor law.
(c) If Lessee shall be in default in the observance or performance
of any term or covenant on Lessee's part to be observed or performed
under any of the provisions of this Lease (beyond applicable notice
and grace periods, if any), then, without thereby waiving such default,
Lessor may, but shall be under no obligation to, take all action,
including, without limitation, entry upon the Premises, to perform
the obligation of Lessee hereunder immediately and without notice
in the case of any emergency and upon five (5) business days' notice
to Lessee in other cases. All reasonable expenses incurred by Lessor
in connection therewith, including, without limitation, attorneys,
fees and expenses (including, without limitation, those incurred in
connection with any appellate proceedings) shall constitute additional
rent under this Lease and shall be paid by Lessee to Lessor upon demand.
(d) If Lessee shall be in default in the performance of any of its
obligations hereunder (beyond applicable notice and grace periods,
if any), Lessee shall pay to Lessor, on demand, all expenses incurred
by Lessor as a result thereof, including, without limitation, reasonable
attorneys' fees and expenses (including, without limitation, those
incurred in connection with any appellate proceedings). If Lessor
shall be made a party to any litigation commenced against Lessee and
Lessee shall fail to provide Lessor with counsel approved by Lessor
and pay the expenses thereof, Lessee shall pay all costs and reasonable
attorneys' fees and expenses in connection with such litigation (including,
without limitation, fees and expenses incurred in connection with
any appellate proceedings).
(e) If Lessee shall fail to pay within fifteen (15) days after the
date due any Basic Rent, additional rent or other sum required to
be paid by Lessee hereunder, Lessor shall be entitled to collect from
Lessee as additional rent and Lessee shall pay to Lessor, in addition
to such Basic Rent, additional rent or other sum, a late payment charge
on the delinquency equal to the Late Rate. The Late Rate shall be
the lesser of eighteen percent (18%) per annum or the maximum rate
permitted by applicable law.
Section 8.1. Notices and Other Instruments.
All notices, offers, consents and other instruments given pursuant to this Lease
shall be in writing and shall be validly given when hand-delivered or sent by a
courier or express service guaranteeing overnight delivery with original being
promptly sent as otherwise provided above, addressed as follows:
If to Lessor: Isaac K. Fisher
4601 Ponce de Leon Blvd., Suite 300
Coral Gables, Florida 33146
If to Lessee: Stephen H. Barnett
Pointe Financial Corporation
21845 Powerline Road
Boca Raton, Florida 33433
With a copy to: Joel K. Goldman, Esquire
Greenberg, Traurig, et al.
1221 Brickell Avenue
Miami, Florida 33131
Fax: (305) 579-0717
Lessor and Lessee each may from time to time specify, by giving fifteen (15)
days' notice to the other party (i) any other address as its address for
purposes of this Lease, and (ii) any other person or entity that is to receive
copies of notices, offers, consents and other instruments hereunder.
Section 8.2. Estoppel Certificates Inspections.
(a) Lessee will upon ten (10) days' written notice at the request
of Lessor, execute, acknowledge and deliver to Lessor a certificate
of Lessee stating that this Lease is unmodified and in full force
and effect (or, if there have been modifications, that this Lease
is in full force and effect as modified, and setting forth such
modifications); and stating the dates to which Basic Rent additional
rent and other sums payable hereunder have been paid; and either stating
that to the knowledge of Lessee no default exists hereunder or specifying
each such default of which Lessee has knowledge and whether or not
Lessee is still occupying and operating the Premises. Any such certificate
may be relied upon by any actual or prospective mortgagee or purchaser
of the Premises. Lessor will, upon ten (10) days' written notice at
the request of Lessee, execute, acknowledge and deliver to Lessee
a certificate of Lessor stating that this Lease is unmodified and
in full force and effect (or, if there have been modifications, that
this Lease is in full force and effect as modified, and setting forth
such modifications) and the dates to which Basic Rent, additional
rent and other sums payable hereunder have been paid, and either stating
that to the knowledge of Lessor no default exists hereunder or specifying
each such default of which Lessor has knowledge. Any such certificate
may be relied upon by Lessee.
(b) Lessor and its agents and designees may enter upon and examine the Premises
at reasonable times and on reasonable notice and show the Premises to
prospective mortgagees, purchasers or others. Except in the event of
emergency, Lessee may designate all employee to accompany Lessor, its
agents and designees on such examinations.
Section 9. Assumption.
It shall be a condition precedent to the merger of Lessee into any Person, to
the consolidation of Lessee with one or more Persons and to the sale or other
disposition of all or substantially all of the assets of Lessee to one or more
Persons that the surviving entity or transferee of assets, as the case may be,
shall deliver to Lessor, and any assignee of any interest of Lessor, an
acknowledged instrument assuming all obligations, covenants and responsibilities
of Lessee hereunder.
Section 10.1. No Merger.
There shall be no merger of this Lease or of the leasehold estate hereby created
with the fee estate in the Premises by reason of the fact that the same person
acquires or holds, directly or indirectly, this Lease or the leasehold estate
hereby created or any interest herein or in such leasehold estate as well as the
fee estate in the Premises or any interest in such fee estate.
Section 10.2. Surrender; Holdover.
Upon the expiration or termination of this Lease, Lessee shall surrender the
Premises to Lessor in the condition which exists at the time of delivery of
possession of the Premises, subject to normal wear and tear and the provisions
of Section 6.1 hereunder. The entire Premises, and any part thereof, shall be
considered in good repair and condition at the time Lessee takes possession of
the Premises, except for those items specifically described otherwise in a
written document Lessee must provide Lessor within thirty (30) days of Lessee
taking possession of the Premises. The provisions of this Section and Sections
3.1 and 3.2 shall survive the expiration or other termination of this Lease.
Lessee agrees that if Lessee does not surrender the Premises to Lessor at the
end of the Lease Term, then Lessee will pay to Lessor, to the extent permitted
by law, double the amount of the Basic Rent paid by Lessee for the last full
month of the Lease Term for each month or portion thereof that Lessee holds over
plus all damages that Lessor may stuffer on account of Lessee's failure to so
surrender to Lessor possession of the Premises, and will indemnify and save
Lessor harmless from and against all claims made by any succeeding lessee of the
Premises against Lessor on account of any delay of Lessor in delivering
possession of the Premises to the succeeding lessee so far as such delay is
occasioned by failure of Lessee to so surrender the Premises in accordance
herewith or otherwise.
No receipt of money by Lessor from Lessee after termination of this Lease or the
service of any notice of commencement of any suit or final judgment for
possession shall reinstate, continue or extend the Lease Term of this Lease or
affect any such notice, demand, suit or judgment.
No act or thing done by Lessor or its agents during the Lease Term shall be
deemed an acceptance of a surrender of the Premises, and no agreement to accept
a surrender of the Premises shall be valid unless it be made in writing and
signed by a duly authorized officer or agent of Lessor.
Section 10.3. Separability; Binding Effect; Governing law.
Each provision hereof shall be separate and independent and the breach of any
provision by Lessor shall not discharge or relieve Lessee from any of its
obligations hereunder. Each provision hereof shall be valid and shall be
enforceable to the extent not prohibited by law. If any provision hereof or the
application thereof to any person or circumstance shall to any extent be invalid
or unenforceable, the remaining provisions hereof, or the application of such
provision to persons or circumstances other than those as to which it is invalid
or unenforceable, shall not be affected thereby. All provisions contained in
this Lease shall be binding upon, inure to the benefit of, and be enforceable
by, the successors and assigns of Lessor to the same extent as if each such
successor and assign were named as a party hereto. All provisions contained in
this Lease shall be binding upon the successors and assigns of Lessee and shall
inure to the benefit of and be enforceable by the permitted successors and
assigns of Lessee in each case to the same extent as if each successor and
assign were named as a party hereto. This Lease shall be governed by and
interpreted in accordance with the laws of the State of Florida.
Section 10.4. Radon Gas.
Radon is a naturally occurring radioactive gas that, when it has accumulated in
a Building in sufficient quantities, may provide health risks to persons who are
exposed to it over time. Levels of Radon that exceed Federal and State
guidelines have been found in buildings in Florida. Additional information
regarding Radon and Radon testing may be obtained from your County Public Health
Unit. (Note: This paragraph is provided for informational purposes pursuant to
Section 404.056(g) Florida Statutes, (1988)).
Section 10.5. Prevailing Party.
It is understood and agreed between Lessor and Lessee that in the event of any
litigation resulting out of the terms and conditions outlined in this Lease,
that the prevailing party shall be entitled to recover all reasonable attorneys'
fees and court costs up to and including the appellate level.
Section 10.6 Waiver of Jury Trail.
LESSOR AND LESSEE WAIVE THE RIGHT TO ATRIAL BY JURY IN ANY ACTION OR PROCEEDING
BASED UPON, OR RELATED T0, THE SUBJECT MATTER OF THIS1 LEASE. THIS WAIVER IS
KNOWINGLY, INTENTIONALLY, AND VOLUNTARILY MADE BY LESSEE AND LESSEE ACKNOWLEDGES
THAT NEITHER LESSOR NOR ANY PERSON ACTING ON BEHALF OF LESSOR HAS MADE ANY
REPRESENTATIONS OF FACT TO INDUCE THIS WAIVER OF TRIAL BY JURY OR IN ANY WAY TO
MODIFY OR NULLIFY ITS EFFECT. LESSEE ACKNOWLEDGES THAT IT HAS READ AND
UNDERSTANDS THE MEANING AND EFFECT OF THIS WAIVER PROVISION.
Section 10.7 Lessor's Liability.
Notwithstanding anything to the contrary provided in this Lease, it is
specifically understood and agreed, such agreement being a primary consideration
for the execution of this Lease by Lessor, that there shall be absolutely no
personal liability on the part of Lessor or any partner of Lessor, its
successors or assigns with respect to any of the terms, covenants and conditions
of this Lease, and any liability on the part of Lessor shall be limited solely
to its interest in the Premises, such exculpation of liability to be absolute
and without any exception whatsoever.
Section 10.8 Amendments and Modifications.
Except as expressly provided herein, this Lease may not be modified or
terminated except by a writing signed by Lessor and Lessee.
Section 10.9 Additional Rent.
All amounts other than Basic Rent which Lessee is required to pay or discharge
pursuant to this Lease, shall constitute additional rent.
Section 10.10 Brokerage.
Lessor and Lessee each represent and warrant
to the other that the only real estate broker(s), salesman (salesmen) or
finder(s) involved in this Lease transaction is Capital Realty Services, Inc.
("Broker"). Lessor shall be solely responsible to pay all real estate brokerage
commissions which may be owing to the Broker with respect to this Lease. If a
claim for commissions in connection with the lease is made by any broker,
salesman or finder other than Broker and claiming to have dealt through or on
behalf of one of the parties hereto, ("Indemnitor"), Indemnitor shall indemnify,
defend and hold harmless the other party ("Indemnitee") and Indemnitee's
officers, directors agents and representatives, from and against all
liabilities, damages, claim costs, fees and expenses whatsoever (including
reasonable attorney's fees and court costs at trial and all appellate levels)
with respect to said claim for commissions. Notwithstanding anything to the
contrary contained in this Lease, the provisions of this paragraph shall survive
the expiration or earlier termination of this Lease.
Section 10.11 Quiet Enjoyment.
Lessor represents and warrants that Lessee, upon paying the Basic Rent,
additional rent, and other sums due hereunder pursuant to this Lease and
observing and keeping the covenants and agreements of this Lease on its part to
be kept and performed, shall lawfully and quietly hold, occupy and enjoy the
Premises without hindrance or molestation by Lessor or any party taking
by,through or under Lessor, during the Lease Term.
Section 10.12 Recording: Documentary Stamps.
This Lease, or a memorandum or short form hereof in form mutually satisfactory
to the parties ("Memorandum of Lease") may be recorded among the Official
Records of Dade County, Florida, and either party may cause any modification or
addition to this Lease or any ancillary document relevant to this transaction to
be recorded.
Section 10.13 Entire Agreement.
This Lease contains the entire agreement between the parties hereto.
Section 10.14. Schedules.
The following Schedules A & B referred to in this Lease, are hereby incorporated
by reference herein.
IN WITNESS WHEREOF, the parties hereto have caused this Lease to be executed by
their respective officers or parties, thereinto duly authorized.
WITNESSES: LESSEE
/s/ By: /s/ Stephen ????
/s/ Name: Stephen ????
Title: President
WITNESSES LESSOR
/s/ By: /s/ Issac K. Fisher
/s/ Name: Issac K. Fisher
Title: General Partner
RELEASE
The undersigned hereby releases the Lessee from all obligations to pay any
brokerage commissions due to the undersigned in connection with this lease
transaction.
CAPITAL REALTY SERVICES, INC.
BY: /s/ Issac K. Fisher
NAME: Issac K. Fisher
TITLE: Vice President
SCHEDULE A
LEGAL DESCRIPTION
2690 N.E. 203rd Street
Lots One (1) through Eight (8), and Lots Thirty-one (31) through Thirty-eight
(38), inclusive, of Block Three (3), of HALLANDALE PARK NO. 10, according to the
plat thereof recorded in Plat Book 29, page 16, of the public records of Dade
County, Florida; said lands situate, lying and being in Dade County, Florida.
PERMITTED LIENS AND ENCUMBRANCES
1. Subject to taxes for the year 1995 and thereafter. 2. Restrictions contained
in Deed Book 938, page 484.
3. Unity of Title Restrictions recorded in Official Records Book 10217, page
665.
4. Matters as reflected on the survey, provided that the Lessee has not elected
to terminate this lease pursuant to Section 1.1(c).
SCHEDULE B
PRIMARY TERM RENT:
Years 1 & 2: $36,000.00 per annum, $3,000.00 per month, plus applicable
sales tax
Years 3, 4 & 5: $60,000.00 per annum, $5,000.00 per month, plus applicable
sales tax
IN THE CIRCUIT COURT OF THE 11TH
JUDICIAL CIRCUIT OF FLORIDA
IN AND FOR DADE COUNTY
GENERAL JURISDICTION DIVISION
CIVIL ACTION NO: 97-26267CA23
STATE OF FLORIDA DEPARTMENT
OF TRANSPORTATION,
Petitioner,
- -vs-
HOLLYWOOD ASSOCIATES VI, ET AL.
Respondents.
- ----------------------------/
ORDER OF TAKING
THIS CAUSE coming on to be heard by the Court, it appearing that proper notice
was first given to all Respondents, and to all persons having or claiming any
equity, lien, title, or other interest in or to the real property described in
the Petition, that Petitioner would apply to this Court on the 2nd day of
February, 1998, for an Order of Taking, and the Court being fully advised in the
premises, upon consideration, it is, therefore,
ADJUDGED:
1. That the Court has jurisdiction of the subject matter of and the parties to
this cause.
2. That the pleadings in this cause are sufficient, and Petitioner is properly
exercising its delegated authority.
3. That the Estimate of Value filed in this cause by the Petitioner was made in
good faith, and based upon a valid appraisal.
4. That upon the payment of the deposit hereinafter specified into the Registry
of this Court, the right, title or interest specified in the Petition as
described herein, together with Respondent, Hollywood Associates VI's rights
of access to and from that frontage roadway abutting the parent tract's
northern boundary (see Specific Purpose Survey attached hereto depicting the
frontage roadway) and Respondent's rights of air, light and view appurtenant
thereto, shall vest In the Petitioner.
SECTION 87030-2534
STATE ROAD 5/US 1
DADE COUNTY
DESCRIPTION
FEE SIMPLE RIGHT OF WAY
PARCEL 106
SECTION 87030-2534
Those portions of Lots 1 through 4, and Lots 35 through 38, of Block 3,
HALLANDALE PARK NO. 10, according to the plat thereof as recorded in Plat Book
29, at Page 16, of the Public Records of Dade County, Florida, in the Southwest
one-quarter (S.W. 1/4) of Section 34, Township 51 South, Range 42 East, and
being more particularly described as follows:
COMMENCE at the Northwest corner of Lot 3 of said Block 3; thence along the
North line of Lots 5 through 8 and said Lot 1 of said Block 3, North
87(degree)37'16" East a distance of 59.459 meters (195.08 feet) to the POINT OF
BEGINNING; thence continue along said North line, North 87(degree)37'16" East a
distance of 2.533 meters (8.31 feet) to a point of curvature of a circular curve
concave to the Southwest and having a radius of 7.620 meters (25.00 feet);
thence run Northeasterly, Easterly and Southeasterly along the arc of said
circular curve to the right through a central angle of 90(degree)15'23" for a
distance of 12.004 meters (39.38 feet) to a point of tangency; thence along the
East line of said Lots 1 through 4 and Lots 35 through 38, South 02(degree)07'21
" East a distance of 45.709 meters (149.96 feet) to a point of curvature of a
circular curve concave to the Northwest and having a radius of 7.620 meters
(25.00 feet); thence run Southeasterly, Southerly and Southwesterly along the
arc of said circular curve to the right through a central angle of
89(degree)44'37" for a distance of 11.935 meters (39.16 feet) to a point of
tangency; thence along the South line of Lot 35, South 87(degree)37'16" West a
distance of 2.533 meters (8.31 feet) to a point of cusp and a point of curvature
of a circular curve concave to the Northwest and having a radius of 7.620 meters
(25.00 feet); thence run Northeasterly, Northerly and Northwesterly along the
arc of said circular curve to the left through a central angle of
89(degree)44'37" for a distance of 11.935 meters (39.16 feet) to a point of
tangency; thence North 02(degree)07'21" West a distance of 45.709 meters (149.96
feet) to a point of curvature of a circular curve concave to the Southwest and
having a radius of 7.620 meters (25.00 feet); thence run Northwesterly, Westerly
and Southwesterly along the arc of said circular curve to the left through a
central angle of 90(degree)15'23" for a distance of 12.004 meters (39.38 feet)
to a point of tangency and the POINT OF BEGINNING.
Containing 154.4 square meters (1 662 square feet), more or less.
J. Edgar /02/17/97
Kimley Horn & Associates
OWNED BY: HOLLYWOOD ASSOCIATES VI, A FLORIDA GENERAL PARTNERSHIP.
ENCUMBERED BY: MORTGAGE recorded in O.R. Book 16727 at Page 3199 in
Favor of: AREMEL COMPANY, A NEW YORK GENERAL PARTNERSHIP.
LEASE recorded in O.R. Book 12745 at Page 6126 in Favor of:
FEDERAL DEPOSIT INSURANCE CORPORATION, AS SUCCESSOR IN INTEREST
TO HOLLYWOOD FEDERAL SAVINGS AND LOAN ASSOCIATION, A FEDERALLY
CHARTERED SAVINGS AND LOAN ASSOCIATION.
LEASE recorded in O.R. Book 16720 at Page 4178 in Favor of:
POINTE BANK, A FLORIDA STATE CHARTERED BANK.
5. That the deposit of money will secure the persons lawfully entitled to the
compensation which will be ultimately determined by final judgment of this
Court.
6. That the sum of money to be deposited in the Registry of the Court within
twenty (20) days of the entry of this Order shall be in the amount of three
hundred seventy two thousand five hundred ($372,500.00) dollars.
7. That on deposit as set forth above and without further notice or Order of
this Court the Petitioner shall be entitled to possession of the property
described in the Petition.
DONE AND ORDERED this 2 day of February, 1998 in the State of Florida, County of
Dade.
BY:
CIRCUIT COURT JUDGE
SPECIFIC PURPOSE SURVEY
PARCEL 106
Diagram
This instrument prepared by, and after recording return to:
Name: Joel K. Goldman, Esq.
Address: Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel, P.A.
1221 Brickell Avenue
Miami, Florida 33131-3261
(Space reserved for Clerk or Court)
MEMORANDUM OF LEASE
THIS MEMORANDUM OF LEASE is made and entered Into this 6th day of March, 1995,
by and between POINTE BANK, a Florida State Chartered Bank ("Tenant") and
HOLLYWOOD ASSOCIATES VI, a Florida general partnership ("Landlord").
WHEREAS:
A. Landlord is the owner of that certain real property located in Dade
County, Florida, more particularly described in Exhibit "A" attached hereto and
by this reference made a part hereof (the "Property").
B. Landlord and Tenant have entered into a lease dated January 23, 1995,
for the leasing of the Property (the "Lease").
C. Landlord and Tenant desire to place all persons to whom these presents
may come upon notice of the existence of the Lease.
NOW, THEREFORE, in consideration of the foregoing, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Landlord and Tenant hereby agree as follows:
1. The foregoing recitals are true and correct and are incorporated herein
by reference.
2. All persons are hereby placed on notice of the execution and existence
of the Lease by and between Landlord and Tenant.
3. The Lease provides for an initial term of Five (5) years commencing on
March 1, 1995 and terminating on February 28, 2000 (with provisions for earlier
termination), together with one (1) additional renewal option of five (5) years.
4. The rights of Tenant as a tenant under the Lease and this Memorandum
shall expire for all purposes and be of no further force and effect either upon:
(i) the expiration of the term of the Lease, together with all applicable
renewal periods, (ii) the recording of a written instrument terminating or
releasing this Memorandum, executed by both Landlord and Tenant, or (iii) the
recording of a written instrument terminating or releasing this Memorandum,
together with a notarized affidavit stating that the Lease has been properly
terminated in accordance with the express terms thereof, executed by either
Landlord or Tenant, whichever is earlier. Upon such termination, no person who
comes upon these presents shall be charged with any notice of the provisions
hereof.
5. The terms of this Memorandum may only be modified or amended by an
instrument in writing, fully executed by Landlord and Tenant.
IN WITNESS WHEREOF, the parties have caused this Memorandum to be executed as of
the day and year first above written.
Signed, Sealed and Delivered in the presence of:
/s/ Dorothy Yacovone
Dorothy Yacovone
/s/ Charlotte M. Leddy
Charlotte M. Leddy
POINTE BANK,
a Florida State Chartered Bank
By: /s/
HOLLYWOOD ASSOCIATES VI,
a Florida general partnership
By: /s/
/s/ Maria Arias
Maria Arias
/s/ Beverly Shwartz
Beverly Shwartz
STATE OF FLORIDA ) SS:
)
COUNTY OF Palm Beach )
The foregoing instrument was acknowledged before me this 15th day of March,
1995, by Morris Massry, as Chairman of Pointe Bank, a Florida State Chartered
Bank, on behalf of said bank. He is personally known to me.
/s/ Judith O'Donovan
Name: Judith O'Donovan
Notary Public, State of Florida
Commission No.:
My Commission Expires:
[NOTARIAL SEAL]
JUDITH O'DONOVAN
MY COMMISSION # CC 343115
EXPIRES: February 15, 1998
Bonded Thru Notary Public Underwriters
STATE OF FLORIDA )
) SS:
COUNTY OF DADE )
The foregoing instrument was acknowledged before me this 6th day of March, 1995,
by Issac K. Fisher, as general partner of Hollywood Associates VI, a Florida
general partnership, on behalf of said partners. He is personally known to me or
has produced _________ as identification.
/s/ Maria Arias
Name: Maria Arias
Notary Public, State of Florida
My Commission Expires:
Commission No.:
[NOTARIAL SEAL]
NOTARY PUBLIC STATE OF FLORIDA
MY COMMISSION EXP. DEC. 15, 1995
BONDED THRU GENERAL INS. UND.
This instrument prepared by, and after recording return to:
Name: Joel K. Goldman, Esq.
Address: Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel, P.A.
1221 Brickell Avenue
Miami, Florida 33131-3261
(Space reserved for Clerk or Court)
MEMORANDUM OF LEASE
THIS MEMORANDUM OF LEASE is made and entered into this 6th day of March, 1995,
by and between POINTE BANK, a Florida State Chartered Bank ("Tenant") and
HOLLYWOOD ASSOCIATES VI, a Florida general partnership "(Landlord").
WHEREAS:
A. Landlord is the owner of that certain real property located in Dade County,
Florida, more particularly described in Exhibit "A" attached hereto and by
this reference made a part hereof (the "Property").
B. Landlord and Tenant have entered into a lease dated January 23, 1995, for the
leasing of the Property (the "Lease").
C. Landlord and Tenant desire to place all persons to whom these presents may
come upon notice of the existence of the Lease.
NOW, THEREFORE, in consideration of the foregoing, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Landlord and Tenant hereby agree as follows:
1. The foregoing recitals are true and correct and are incorporated herein by
reference.
2. All persons are hereby placed on notice of the execution and existence of the
Lease by and between Landlord and Tenant.
3. The Lease provides for an initial term of Five (5) years commencing on March
1, 1995 and terminating on February 28, 2000 (with provisions for earlier
termination), together with one (1) additional renewal option of five (5)
years.
4. The rights of Tenant as a tenant under the Lease and this Memorandum shall
expire for all purposes and be of no further force and effect either upon:
(i) the expiration of the term of the Lease, together with all applicable
renewal periods, (ii) the recording of a written instrument terminating or
releasing this Memorandum, executed by both Landlord and Tenant, or (iii) the
recording of a written instrument terminating or releasing this Memorandum,
together with a notarized affidavit stating that the Lease has been properly
terminated in accordance with the express terms thereof, executed by either
Landlord or Tenant, whichever is earlier. Upon such termination, no person
who comes upon these presents shall be charged with any notice of the
provisions hereof.
5. The terms of this Memorandum may only be modified or amended by an instrument
in writing, fully executed by Landlord and Tenant.
IN WITNESS WHEREOF, the parties have caused this Memorandum to be executed as of
the day and year first above written.
Signed, Sealed and Delivered in the presence of:
/s/ Dorothy Yacovone
Dorothy Yacovone
/s/ Charlotte M. Leddy
Charlotte M. Leddy
POINTE BANK,
a Florida State Chartered Bank
By: /s/
HOLLYWOOD ASSOCIATES VI,
a Florida general partnership
By: /s/
/s/ Maria Arias
Maria Arias
/s/ Beverly Shwartz
Beverly Shwartz
STATE OF FLORIDA ) SS:
)
COUNTY OF Palm Beach )
The foregoing instrument was acknowledged before me this 15th day of March,
1995, by Morris Massry, as Chairman of Pointe Bank, a Florida State Chartered
Bank, on behalf of said bank. He is personally known to me.
/s/ Judith O'Donovan
Name: Judith O'Donovan
Notary Public, State of Florida
My Commission Expires: Commission No.:
[NOTARIAL SEAL]
JUDITH O'DONOVAN
MY COMMISSION # CC 343115
EXPIRES: February 15, 1998
Bonded Thru Notary Public Underwriters
STATE OF FLORIDA )
) SS:
COUNTY OF DADE )
The foregoing instrument was acknowledged before me this 6th day of March, 1995,
by Issac K. Fisher, as general partner of Hollywood Associates VI, a Florida
general partnership, on behalf of said partners. He is personally known to me or
has produced _____________________ as identification.
/s/ Maria Arias
Name: Maria Arias
Notary Public, State of Florida
My Commission Expires: Commission No.:
[NOTARIAL SEAL]
NOTARY PUBLIC STATE OF FLORIDA
MY COMMISSION EXP. DEC. 15, 1995
BONDED THRU GENERAL INS. UND.
Independent Bankers' Bank
OF FLORIDA
August 12, 1997
Mr. Carl Palmer
President & CEO
Pointe Bank
21845 Powerline Road
Boca Raton, FL 33433
Re: Federal Funds Purchased - Accommodation
Dear Carl:
We to advise that we have revised our overnight Federal Funds Purchased
Accommodation in favor of Pointe Bank to a maximum of $2,500,000 unsecured,
allowing you to purchase funds at our daily "federal funds purchased"
rate. The Accommodation in favor of Pointe Federal Savings Bank, Boca
Raton, is hereby canceled.
This facility is subject to market conditions and ongoing financial
analysis of your bank's quarterly Call Reports, which you should furnish
us at the same time they are filed with your primary regulator. The
facility does not represent a contractual obligation of your Bankers'
Bank.
As you know, by our policy you are restricted to your approved volume
under this accommodation. When you require using this accommodation
for extended periods, we would encourage your discussing your funding
situation with us to explore possible alternatives.
We look forward to meeting your ongoing needs as they arise.
Very truly yours, Acknowledged & Accepted by:
/S/ Bruce E. Meacham /S/
Bruce E. Meacham
Senior Vice President Date
Credit Services Group
/S/ Bradley R. Meredith
BEM/jm Name & Title
Post Office Box 4998 - Orlando, Florida 32802-4998 - Telephone (407)
423-2002
SINCE 1983
Sun Trust Bank, Miami, N.A.
777 Brickell Avenue
Miami, Florida 33131-2803
SUNTRUST
October 8, 1997
Mr. Carl Palmer, Jr.
President & CEO
Pointe Bank
21845 Powerline Road
Boca, Raton, Florida 33433
Re: Approved line of credit
Dear Mr. Palmer,
In addition to our recent phone confirmation, I am pleased to
additionally confirm to you in writting that SunTrust Bank/Miami,
National Association has approved for Pinte Bank an unsecured line
Of credit facility (the "Facility") on the terms and conditions set
Forth below:
The amount of the Facility is $1,000,000.
1) The Facility will have available a $1,000,000 sub-limit for the
issuance of commercial letters of credit up to 180 days and for the purchase
of foreign exchange contracts up to 180 days. At the present time your
contact person for letters of credit is Tira McGee 305 591-6112 Manager of
our Letter of Credit Area and for foreign exchange is Dana Zietany
1 800 494-9782, Foreign Exchange Trader.
2) The full Facility will be available for overnight Fed Fund borrowing.
No borrowing will he permitted on any day until all outstanding Fed Funds
borrowing have been repaid in full. You may not borrow under the Facility
for more than five (5) consecutive banking days and, if you borrow under it
for five (5) consecutive banking days, you may not borrow under it for the
next two (2) banking days. You promise to repay each advance made to you under
the Facility before 2:00 p.m. on the banking day following the day such
advance is made and to pay at that time interest that accrued on the
principal amount of such advance at the rate you and we agreed to when
you requested the advance. Each computation of interest or of a commission
or fee under the Facility shall be made by us on the basis of a year of
360 days and the actual number of days elapsed in the period for which
such interest, commission or fee is
payable. At the present time, your contact person for Fed Funds
Pointe Bank
October 8, 1997
borrowing is David Caban 579-7392, in our Asset Liability Management
Department. We may, in our discretion, honor requests for advances made
by telephone, but may require them to be in or confirmed by writing,
including the interest rate quoted.
Our records regarding advances, interest rates and repayments shall
be conclusive absent manifest error. The normal deadline for requesting
a borrowing under the Facility is 4:00 p.m. We may be willing to make
exceptions in special circumstances if we are notified and give our
approval well in advance and, if doing so, does not put SunTrust
Bank/Miami, N.A. at risk.
You agree to pay on demand any documentary stamp, intangible or other
similar tax imposed on or with respect to any credit extensions made,
or documents delivered, under the Facility. You also agree that, upon
any failure by you to pay when due any amount owed under the Facility,
we may, to the fullest extent permitted by applicable law, set off and
apply, without advance notice to you, any and all deposits (general or
special, time or demand) at any time held by or booked with us for your
credit or account, against any and all of your obligations under the
Facility, irrespective of whether we have made demand with respect thereto.
The undersigned hereby agrees to pay without demand or notice interest
on any unpaid balance at the prevailing floating SunTrust Prime Rate
plus 4% until paid.
Your right to use the Facility will be conditional at all times upon your
then financial condition, management and your future financial prospects
being satisfactory to us in our sole judgment. We reserve the right, at
any time and at our sole discretion, to cancel the Facility or change its
terms and conditions. In accordance with our usual practice, we shall
review the Facility from time to time and notify you of any changes in
terms or conditions. You agree to forward to us a copy of your complete
quarterly call report at the end of each calendar quarter and a copy of
your year end audited financial statements within sixty (60) days after the
end of each of your fiscal year. Moreover, promptly upon our request, you
shall execute and deliver whatever additional documents, and take whatever
additional actions we may reasonably request in order to fully effectuate
the purposes of this agreement.
This agreement shall be binding upon us and our respective successors
and assigns, except that you may not assign your rights under it without
our prior written consent.
This agreement shall be governed by and construed in accordance with
Florida law. It may not be modified orally. You agree that any action
or proceeding arising under this letter agreement or the Facility that
is brought by you shall be tried by the courts of the State of Florida
Pointe Bank
October 8, 1997
sitting in Dade County or the United States district-- courts sitting
there. If we have to bring any legal action to enforce our rights in
respect of the Facility, you will reimburse us on demand for our court
costs and attorneys' fees.
We at SunTrust Bank / Miami greatly appreciate the opportunity to work
with you. If we can be of any assistance, please don't hesitate to
give us a call at 579-7264.
Very truly yours,
SUNTRUST BANK, MIAMI, N.A.
By: /s/ Ernesto J. Vidal
Ernesto J. Vidal, Vice President
ACCEPTANCE
The foregoing terms and conditions of the Facility are agreed to and
accepted this 14th day of October, 1997.
Point Bank
By: /s/ R.Carl Palmer, Jr.
Print Name R.Carl Palmer, Jr.
As Its President
FEDERAL HOME LOAN BANK OF ATLANTA
AGREEMENT FOR ADVANCES AND SECURITY AGREEMENT
WITH BLANKET FLOATING LIEN
AGREEMENT, dated as of November 24, 1997 between
POINTE BANK having its principal place of business at BOCA RATON,
FLORIDA, 33433
("Member") and the Federal Home Loan Bank of Atlanta, 1475 Peachtree
Street, N. E., Atlanta, Georgia 30309 ("Bank").
WHEREAS, the Member desires from time to time to participate
in the
Bank's credit programs under the terms of this Agreement, and the
Bank
is authorized to extend credit to the Member pursuant to the provisions
of the Federal Home Loan Bank Act, as now and hereafter amended (the
"Act"), and the regulations and guidelines of the Federal Housing
Finance Board (the "Board") or any successor entity now and hereafter
in effect (collectively, the "Regulations"); and
WHEREAS, the Bank requires that advances by the Bank be secured
pursuant to this Agreement, and the Member agrees to provide the
security the Bank requests in accordance with this Agreement.
NOW THEREFORE, the Member and the Bank agree as follows:
ARTICLE 1: DEFINITIONS
Section 1.01 Definitions. As used herein, the following terms shall
have
the following meanings:
(A) "Advance" or "Advances" means any and all loans or other extensions
of credit, including all Commitments, heretofore, now or hereafter
granted by the Bank to, on behalf of, or for the account of, the Member.
(B) "Application" means a writing, signed by the Member, and in such
form or forms as shall be specified by the Bank from time to time,
by
which the Member requests, and which if executed by the Bank shall
together with this Agreement evidence the terms of, an Advance or
a
commitment for an Advance.
(C) "Capital Stock" means all of the capital stock of the Bank held
by
the Member and all payments which have been or hereafter are made
on
account of subscriptions to and all unpaid dividends on such capital
stock.
(D) "Collateral" means all property, including the proceeds thereof,
heretofore assigned, transferred or pledged to the Bank by the Member
as
collateral for Advances or other extensions of credit prior to the
date
hereof, all Capital Stock, and First Mortgage Collateral, including
the
proceeds thereof, which is now or hereafter pledged to the Bank pursuant
to Section 3.01 hereof.
(E) "Collateral Maintenance Level" means the aggregate dollar amount
equal to such percentage(s) as the Bank may specify from time to time
of
(1) the outstanding amounts of all Advances; (2) with respect to each
outstanding Swap Transaction, the amount for which the
Member is required to maintain Collateral; and (3) any additional
obligations and liabilities of the Member to the Bank. The Bank may
increase or decrease the Collateral Maintenance Level at any time.
(F) "Commitment" or "Commitments" means any and all agreements under
which the Bank is contractually obligated to make a loan to, or to
make
a future payment on behalf or for the account of, the Member (but
excluding any obligations that the Bank may now or hereafter have
to honor items or transfer orders under a depository or similar
agreement between the Bank and the Member), regardless of whether
such
obligation is contingent in whole or in part, including,
without limitation, letters of credit issued for the account of the
Member.
(G) "Confirmation of Advance" means a writing or machine readable
electronic transmission, in such form or forms as the Bank may generate
from time to time, by which the Bank agrees to and
confirms the Member's request for an Advance or a commitment for an
Advance and which, together with this Agreement, shall evidence the
terms of such Advance or commitment.
(H) "First Mortgage Collateral" means First, Mortgage Documents
(excluding securitized loans and participation or other fractional
interests therein) and all ancillary security agreements,
policies and certificates of insurance or guarantees, evidences of
recordation, applications, underwriting materials, surveys, appraisals,
approvals, permits, notices, opinions of counsel and
loan servicing data and all other electronically stored and written
records or materials relating to the loans evidenced or secured by
the
First Mortgage Documents.
(1) "First Mortgage Documents" mean mortgages and deeds of trust (herein
"mortgages") secured by a first lien on one-to-four unit single family
dwellings, and all notes, bonds or other instruments (herein "mortgage
notes"') evidencing fully disbursed loans secured by such
mortgages and any endorsements or assignments thereof to the Member.
(J) "Indebtedness" means all indebtedness, now or hereafter outstanding,
of the Member to the Bank, including, without limitation, all Advances
and all other obligations to pay and liabilities of the Member to
the
Bank.
(K) "Lendable Collateral Value" means an amount equal to such percentage
as the Bank shall from time to time, in its sole discretion, ascribe
to
the market value or unpaid principal balances of items of Qualifying
Collateral.
(L) "Qualifying Collateral" means First Mortgage Collateral which:
(i)
is eligible as collateral that can be used to support the origination
of
Advances under the terms and conditions of the Act
and the Regulations, and satisfies such other requirements as may
be
established by the Bank; (ii) is owned by the Member free and clear
of
any liens, encumbrances or other interests other than
the assignment to the Bank hereunder, (iii) has not been in default
within the most recent 12-month period excepting only payments which
are
not past due except as permitted by the Bank's Credit Policy; (iv)
relates to residential real property on which is located a one-to-four
unit single family dwelling that is covered by fire and hazard insurance
in an amount at least sufficient to discharge the mortgage loan in
full
in case of loss and as to which all real estate taxes are current;
(v)
has not been classified as substandard, doubtful, or loss by the
Member's regulatory authority or its management; and (vi) does not
secure an indebtedness on which any director, officer, employee,
attorney or agent of the Member or any Federal Home Loan Bank is
personally liable unless the acceptance of such Collateral by the
Bank
has been specifically approved by formal resolution of the Board.
(M) "Swap Transaction" means an interest rate swap, interest rate
cap,
floor or collar, currency exchange transaction or similar transaction
entered into between the Bank and the Member.
ARTICLE II: ADVANCES AGREEMENT
Section 2.01 Advance Documentation. The Member may apply for Advances
and commitments for Advances by
completing and submitting an Application to the Bank or by telephonic
or
other unsigned communication. The Bank may
suspend the use of telephonic applications at any time. The terms
of
each Advance or commitment shall be conclusively
established by this Agreement and by either (i) the Member's Application
when such Application is executed by the Bank without any change,
or
(ii) in the case of an Application received, completed or modified
by
the Bank pursuant to a telephonic or other unsigned communication
from
the Member ("telephonic application"), by a Confirmation of Advance
generated by the Bank. The Member shall be estopped from asserting
any
claim or defense with respect to the terms applicable to an Advance
or a
commitment for an Advance entered into pursuant to a telephonic
application unless, within two (2) business days of receipt of the
Bank's Confirmation of Advance, the Member delivers to the Bank a
written notice specifying the disputed term(s) or condition(s) of
the
Advance or commitment. Within three (3) business days of the
date of the Member's receipt of the Bank's Confirmation of Advance,
the
Member shall prepare, sign and submit to the Bank a completed
Application conforming to such Confirmation of Advance. Upon the request
of the Bank, the Member shall sign and deliver to the Bank a promissory
note or notes in such form as the Bank may reasonably require evidencing
any Advance. Unless otherwise agreed to by the Bank in writing,
each Advance shall be made by crediting the Member's demand deposit
account(s) with the Bank.
Section 2.02 Repayment of Advances. The Member agrees to repay each
Advance in accordance with this Agreement and the terms and conditions
of the Application or Confirmation of Advance evidencing such Advance.
Interest shall be paid on each Advance at the times specified
by the Bank in writing and shall be charged for each day that an Advance
is outstanding at the rate applicable to the Advance. The Member shall
pay to the Bank, immediately and without demand, interest on any past
due principal of and interest on any Advance at an interest rate
which is the greater of (i) the rate applicable to such Advance plus
one
percent (1%) or (ii) the rate in effect and being charged by the Bank
from time to time on overdrafts on demand deposit
accounts of its Members, but in no event more than any applicable
limit
set by the Regulations. The Member shall ensure that, on any day on
which any payment is due to the Bank with respect
to Advances or other Indebtedness, the Member's demand deposit
account(s) with the Bank has an available balance in an amount at
least
equal to the amounts then due and payable to the Bank,
and the Member hereby authorizes the Bank to debit the Member's demand
deposit account(s) with the Bank for all amounts due and payable with
respect to any Advance and for all other amounts due and payable
hereunder. In the event that the available balance in the Member's
demand deposit account(s) is insufficient to pay such due and payable
amounts, the Bank may, without notice to or request from the Member,
apply any other deposits, credits, or monies of the Member then in
the
possession of the Bank to the payment of amounts due and payable.
All
payments with respect to Advances shall be applied first to any fees
or
charges applicable thereto and to interest due thereon, in such order
as
the Bank may determine, and then to any principal
amount thereof that is then due and payable.
Section 2.03 Right of Bank to Make Advances with Respect to Outstanding
Commitments. In the event that there are one or more outstanding
Commitments at the time of an Event of Default
under Section 4.01 hereof, the Bank may at its option, and without
notice to or request from the Member, make an Advance by crediting
a
special account of the Member with the Bank in an amount equal to
the
outstanding Commitments. Amounts credited to such special account
shall
be utilized by the Bank for the purpose of satisfying the Bank's
obligations under such Commitments. When all such obligations have
expired or have been satisfied, the Bank shall disburse the balance,
if
any, in such special account first to the satisfaction of any amounts
then due and owing by the Member to the Bank and then to the Member
or
its successors in interest. Advances made pursuant to this Section
2.03
shall be payable on demand and shall bear interest from the date the
same shall be made until paid at the rate in effect and being charged
by
the Bank from lime to time on overdrafts on demand deposit accounts
of
its members, but in no event more than any applicable limit set by
the
Regulations.
Section 2.04 Amortization of Advances. In the event that the Bank
determines that the creditworthiness of the Member, as determined
from
time to time by the Bank, does not meet the
requirements of the Bank, the Bank may, without limitation of the
Bank's
rights upon the occurrence of an Event of Default hereunder, require
amortization by means of monthly payments of principal on all or part
of
the Member's Advances. The Member agrees to begin
making such monthly amortization payments, upon thirty (30) days written
notice from the Bank, in such monthly amounts as the Bank shall specify
in writing. No monthly payment shall exceed
ten percent (10%) of the original principal balance of the Advance
being
amortized. Unless otherwise specified by the Bank in writing to the
Member, such monthly amortizing payments
shall not extend or modify the maturity date or other scheduled payment
dates applicable to the Advance being amortized.
ARTICLE III: SECURITY AGREEMENT
Section 3.01 Creation of Security Interest. As security for all
Indebtedness, the Member hereby assigns, transfers, and pledges to
the
Bank, and grants to the Bank a security interest in all of the
Capital Stock and First Mortgage Collateral now or hereafter owned
by
the Member, and all proceeds thereof, provided, however, that First
Mortgage Collateral that is encumbered or
disposed of by the Member in conformity, with the requirements of
Section 3.04 (A) hereof shall not be subject to the security interest
created hereunder. Without limitation of the foregoing, all
property heretofore assigned, transferred or pledged by the Member
to
the Bank as collateral securing Indebtedness and other obligations
of
the Member prior to the date hereof is hereby
assigned, transferred and pledged to the Bank as Collateral hereunder.
Section 3.02 Additional Collateral and Documentation: Required
Substitution of "Advances, Specific Collateral Pledge And Security
Agreement". The Member agrees to assign, transfer and
pledge Collateral in conformity with the Bank's "Advances, Specific
Collateral Pledge and Security Agreement" (i) at any time the Member
shall not have assigned, transferred, or pledged
to the Bank under this Agreement First Mortgage Collateral which is
Qualifying Collateral and which has a Lendable Collateral Value at
least
equal to the Collateral Maintenance Level or (ii) at any time the
Member
does not qualify under the Bank's criteria for member eligibility
to
secure Advances under this Agreement or (iii) if the Bank determines
in
good faith that the value of the Member's Qualifying Collateral may
not
be adequately ascertained, or (iv) at any time the Bank deems itself
insecure. In addition, the Member agrees to maintain such additional
amounts of Collateral (which may be Collateral that is not Qualifying
Collateral) as may be required by the Bank in order to protect its
security position with respect to outstanding Indebtedness. If the
Bank requires the Member to substitute for this Agreement the Bank's
"Advances, Specific Collateral Pledge and Security Agreement," the
Member must execute that agreement and comply with the requirements
of
that agreement in all respects. To assure that the Member
provides to the Bank Qualifying Collateral with a Lendable Collateral
Value at least equal to the Collateral Maintenance Level at all times,
the Bank may require, in connection with the substitution of agreements,
that the Member make, execute, record, and deliver to the Bank
additional agreements, financing statements, notices, assignments,
listings, powers, and other documents with respect to such Collateral
and the Bank's security interest therein.
Section 3.03 Member's Representation and Warranties Concerning
Collateral. The Member represents and warrants to the Bank, as of
the
date hereof and the date of each Advance hereunder, as follows:
(A) The Member owns and has marketable title to the Collateral and
has
the right and authority to grant a security interest in the Collateral
and to subject all of the Collateral to this Agreement;
(B) The information given from time to time by the Member as to each
item of Collateral is true, accurate and complete in all material
respects;
(C) All the Collateral meets the standards and requirements with respect
thereto from time to time established by the Act, the Regulations
and
the Bank:
(D) The lien of each mortgage pledged as Collateral hereunder is a
first, prior, and perfected lien under applicable law;
(E) The Member has not conveyed or otherwise created, and there does
not
otherwise exist, any participation interest or other direct, indirect,
legal, or beneficial interest in any Collateral on the
part of anyone other than the Bank and the Member;
(F) Except as may be approved in writing by the Bank, no account debtor
or other obligor owing any obligation to the Member with respect to
any
item of First Mortgage Collateral has or will
have any defenses, offsetting claims, or other rights affecting the
right of the Member or the Bank to enforce such mortgage, mortgage
note
or promissory obligation, and no defaults (or conditions that, with
the
passage of time or the giving of notice or both, would constitute
a
default) exist under any such writings; and
(G) No part of any real property or interest in real property that
is
the subject of First Mortgage Collateral which is Qualifying Collateral
contains or is subject to the effects of toxic or hazardous materials
or
other hazardous substances (including those defined in the Comprehensive
Environmental Response Compensation and Liability Act of 1980, as
amended, 42 U.S.C. SS 9601, et seq.; the Hazardous Materials
Transportation Act, 49 U.S.C. SS 1801 et seq.; the Resource Conservation
and Recovery Act, 42 U.S.C. SS 6901 et seq.; and in the regulations
adopted and publications promulgated pursuant to said laws) the presence
of which could subject the Bank to any liability under applicable
state
or Federal law or local ordinance either at any time that such property
is pledged to the Bank or upon the enforcement by the Bank
of its security interest therein. The Member hereby agrees to indemnify
and hold the Bank harmless against all costs, claims, expenses, damages,
and liabilities resulting in any way from the presence or effects
of any
such toxic or hazardous substances or materials in, on, or
under any real property or interest in real property that is subject
to
or included in the Collateral.
Section 3.04 Collateral Maintenance Requirement
(A) The Member shall at all times maintain as Collateral an amount
of
Qualifying Collateral which has a Lendable Collateral Value that is
at
least equal to the then current required Collateral
Maintenance Level. The Member shall not assign, pledge, transfer,
create
any security interest in, sell, or otherwise dispose of any Collateral
if: (i) such Collateral has been specified or identified
pursuant to Section 3.05 hereof or is held by or on behalf of the
Bank
pursuant to Section 3.06 hereof, or the Bank has otherwise perfected
its
security interest in such Collateral; or (ii) at the time of or
immediately after such action, the Member' is not or would not be
in
compliance with the collateral maintenance requirements of the first
sentence of this Section 3.04 (A) or is otherwise in default under
this
Agreement.
(B) Except for Collateral delivered pursuant to Section 3.06 hereof,
Collateral shall be held by the Member in trust for the benefit of,
and
subject to the direction and control of, the Bank and
will be physically safeguarded by the Member with at least the same
degree of care as the Member uses in physically safeguarding its other
property. Without limitation of the foregoing,
the Member shall take all action necessary or desirable to protect
and
preserve the Collateral and the Bank's interest therein, including
without limitation the maintaining of insurance on property
securing First Mortgage Collateral (such policies and certificates
of
insurance or guaranty relating to such mortgages are herein called
"insurance"), the collection of payments under all
mortgages and under all insurance, and otherwise assuring that all
mortgages are serviced in accordance with the standards of a reasonable
and prudent mortgagee.
(C) If any Collateral that was Qualifying Collateral ceases to be
Qualifying Collateral and, after such event, the Member is not or
would
not be in compliance with the collateral maintenance
requirements of the first sentence of this Section 3.04(A), the Member
shall promptly notify the Bank in writing of that fact and, if so
requested by the Bank, of the reason that the Collateral has
ceased to be Qualifying Collateral. If such Collateral was specified
or
identified pursuant to Section 3.05 hereof, or delivered to the Bank
pursuant to Section 3.06 hereof, the Member shall promptly specify,
identify, or deliver, as the case may be, other Qualifying Collateral
having at least the same Lendable Collateral Value as the Collateral
so
requested to be withdrawn.
(D) The Bank may review the form and sufficiency of all documents
pertaining to the Collateral.
Such documents must be satisfactory to the Bank and, if not, such
Collateral may not be acceptable as Qualifying Collateral or may have
a
Lendable Collateral Value applied thereto that
is less than the Lendable Collateral Value otherwise applicable under
the Bank's Credit Policy, as the Bank may specify. The Bank may require
that the Member make any or all documents pertaining to the Collateral
available to the Bank for its inspection and approval.
Section 3.05 Specification and Identification of Collateral.
(A) Upon the Bank's written or oral request, or at such times as shall
be necessary to satisfy the requirements of the Bank, or promptly,
at
any time that the Member becomes subject to any
Mandatory collateral specification requirements that may be established
in writing by the Bank and in any case from time to time thereafter
until such time as may be agreed upon by the Bank
in writing, the Member shall deliver to the Bank a Status report and
accompanying schedules, all in the form(s) prescribed by the Bank,
specifying and describing the First Mortgage Collateral
that is certified by the Member to be Qualifying Collateral.
(B) The Member shall hold each set of First Mortgage Documents which
is
a part of such specified Collateral in a separate file folder with
each
file folder clearly labeled with the loan identification number and
the
name of the borrower(s). Each such file folder shall be clearly marked
or stamped with the statement: "The Deed of Trust/Mortgage and Note
Relating to This Loan Have Been Assigned to the Federal Home Loan
Bank
of Atlanta," or such other statement that may be approved by the Bank
from time to time. If so requested by the Bank, in writing, the
Member shall physically segregate any, First Mortgage Collateral
specified in each status report delivered pursuant to subsection (A)
of
this Section 3.05 from all other property of the Member
in a manner satisfactory to the Bank.
Section 3.06 Delivery of Collateral.
(A) Upon the Bank's written or oral request, or promptly at any time
that the Member becomes subject to any mandatory collateral delivery
requirements that may be established in writing by
the Bank, and until such time as may be agreed upon by the Bank in
writing, the Member shall deliver to the Bank, or to a custodian
designated by the Bank, such First Mortgage Collateral as
may be necessary so that the Lendable Collateral Value of Qualifying
Collateral held by the Bank, or such custodian, meets or exceeds the
Collateral Maintenance Level at all times. Collateral delivered to
the
Bank shall be endorsed or assigned, as appropriate, in recordable
form
by the Member to the Bank, as specified by the Bank. Unless otherwise
indicated by the Bank, such endorsements or assignments may be in
blanket form provided that there shall be separate
endorsements and assignments for each county or recording district
in
which the real property covered by an item of First Mortgage Collateral
is located. The Member need only deliver the First Mortgage Documents
relating to the First Mortgage Collateral delivered hereunder
together with recordable assignments of the mortgages, unless otherwise
directed by the Bank. Concurrently with the initial delivery of
Collateral, the Member shall deliver to the Bank a status
report and accompanying schedules, all in the form(s) prescribed by
the
Bank, specifying and describing the Collateral held by the Bank or
its
custodian and certifying that such Collateral is Qualifying Collateral.
(B) The Member agrees to pay to the Bank such reasonable fees and
charges as may be assessed by the Bank to cover the Bank's overhead
and
other costs relating to the receipt, holding, redelivery and
reassignment of Collateral and to reimburse the Bank upon request
for
all recording fees and other reasonable expenses, disbursements and
advances incurred or made by the Bank in connection therewith (including
the reasonable compensation and the expenses and
disbursements of any custodian, consultant or appraiser that may be
appointed by the Bank hereunder, and the agents and legal counsel
of the
Bank and of such custodian).
(C) The Member shall, upon request of the Bank, immediately take such
other actions as the Bank shall deem necessary or appropriate to perfect
the Bank's security interest in the Collateral or otherwise to obtain,
preserve, protect, enforce or collect the Collateral or the proceeds
thereof.
Section 3.07 Withdrawal of Collateral. Upon receipt by the Bank of
writings in the form specified by the Bank constituting (i) a request
from the Member for the withdrawal of Collateral which has been
specified or identified pursuant to Section 3.05 hereof or has been
delivered pursuant to Section 3.06 hereof, or as to which the Bank
has
otherwise perfected its security interest, (ii) a detailed listing
of
the Collateral to be withdrawn, and (iii) a certificate of a
responsible officer of the Member certifying as to the Qualifying
Collateral that is specified and identified by the Member or held
by the
Bank, as appropriate, after such withdrawal, and upon
the Bank's determination that the Lendable Collateral Value of the
remaining Qualifying Collateral is not less than the current required
Collateral Maintenance Level, the Bank shall
promptly redeliver, release or reassign to the Member the Collateral
specified in the Member's listing of the Collateral to be withdrawn,
provided that the Collateral requested to be withdrawn
is not required by the Bank to be maintained as additional Collateral.
Notwithstanding anything to the contrary herein contained, while an
Event of Default hereunder shall have occurred and be
continuing, or at any time that the Bank reasonably and in good faith
deems itself insecure, the Member may not obtain any such withdrawal.
Section 3.08 Reports; Collateral Audits: Access.
(A) The Member shall furnish to the Bank annually and at such other
times as the Bank may request, an audit report with respect to the
Member's Collateral and Qualifying Collateral,
prepared by the Member's internal or external auditor and in form
and
substance acceptable to the Bank, and such financial reports and other
information relating to the Member's financial condition as the Bank
may
reasonably request.
(B) The Member shall furnish to the Bank at such times as the Bank
may
request, or as necessary to satisfy the requirements of the Bank,
a
status report with respect to the Member's Collateral
prepared by the Member in form and substance acceptable to the Bank,
and
as of a date within two weeks of the report due date. The Status report
shall be a written report covering such matters regarding the Collateral
as the Bank may require, including listings of mortgages and unpaid
principal balances thereof and certifications concerning the status
of
payments on mortgages and of taxes and insurance on property securing
mortgages.
(C) If so requested by the Bank, the Member shall promptly report
to the
Bank any event which reduces the principal balance of any mortgage
or
other item of Collateral by five percent (5%) or more, whether by
prepayment, foreclosure safe, insurance or guaranty payment or
otherwise.
(D) The Member shall give the Bank access at all reasonable times
to
Collateral in the Member's possession and to the Member's books and
records of account relating to such Collateral, for the
purpose of the Bank's examining, verifying or reconciling the Collateral
and the Member's reports to the Bank thereon.
(E) If the Member becomes aware or has reason to believe that the
Lendable Collateral Value of the Member's Qualifying Collateral has
fallen below the Collateral Maintenance Level, or that a
contingency exists which with the lapse of time could result in the
Member failing to meet the Collateral Maintenance Level, the Member
shall immediately notify the Bank.
(F) All Collateral and any matters relating thereto shall be subject
to
audit and verification by or on behalf of the Bank. Such audits and
verifications may occur without notice during the Member's normal
business hours or upon reasonable notice at such other times as the
Bank
may reasonably request. The Member shall provide access to, and shall
make adequate working facilities available to, the representatives
or
agents of the Bank for purposes of such audits.
Reasonable fees and charges may be assessed to the Member by the Bank
to
cover overhead and other costs relating to such audit and verification.
(G) Notwithstanding anything to the contrary, the Member shall be
solely
responsible for the accuracy and adequacy of all information and data
in
each audit or status report (or other writing
specifying and describing any Collateral) submitted to the Bank,
regardless of the form in which submitted. The Bank shall have no
duty
to make any independent examination of or calculation
with respect to the information submitted in an audit or status report
(or in any written schedule that may be submitted by the Member) and,
without limiting the generality of the foregoing, the
Bank makes no representation or warranty as to the validity, accuracy,
or completeness of any information contained in any written records
of
the Bank concerning, or of any response to, such audit or status report.
Section 3.09 Additional Documentation. The Member shall make, execute,
record and deliver to the Bank such financing statements, notices,
assignments, listings, powers, and other documents
with respect to the Collateral and the Bank's security interest therein
and in such form as the Bank may reasonably require.
Section 3.10 Bank's Responsibilities as to Collateral. The Bank's
duty
as to the Collateral shall be solely to use reasonable care in the
custody and preservation of the Collateral in its possession,
which shall not include any steps necessary to preserve rights against
prior parties nor the duty to send notices, perform services, or take
any action in connection with the management of the
Collateral. The Bank shall not have any responsibility or liability
for
the form, sufficiency, correctness, genuineness or legal effect of
any
instrument or document constituting a part of the Collateral, or any
signature thereon or the description or misdescription, or value of
property represented, or purported to be represented, by any such
document or instrument. The Member agrees that any and all Collateral
may be removed by the Bank from the state or location where situated,
and may be subsequently dealt with by the Bank as provided in this
Agreement.
Section 3.11 Bank's Rights as to Collateral; Power of Attorney. At
any
time or times, at the expense of the Member, the Bank may in its
discretion, before or after the occurrence of an Event
of Default as defined in Section 4.01 hereon, in its own name or in
the
name of its nominee or of the Member, do any or all things and take
any
and all actions that are pertinent to the protection
of the Bank's interest hereunder and are lawful under the laws of
the
State of Georgia, including, but not limited to, the following:
(A) Terminate any consent given hereunder;
(B) Notify obligors on any Collateral to make payments thereon directly
to the Bank;
(C) Endorse any Collateral in the Member's name;
(D) Enter into any extension, compromise, settlement, or other agreement
relating to or affecting any Collateral;
(E) Take any action the Member is required to take or which is otherwise
reasonably necessary to
(1) sign and record a financing statement or otherwise perfect a
security interest in any or all of the Collateral or (2) to obtain,
preserve, protect, enforce or collect the Collateral;
(F) Take control of any funds or other proceeds generated by the
Collateral and use the same to reduce Indebtedness as it becomes due;
and
(G) Cause the Collateral to be transferred to its name or the name
of
its nominee.
The Member hereby appoints the Bank as its true and lawful attorney,
for
and on behalf of the Member and in its name, place and stead, to
prepare, execute and record endorsements and assignments to the Bank
of
all or any item of Collateral, giving or granting to the Bank, as
such
attorney, full power and authority to do or perform every lawful act
necessary or proper in connection therewith as fully as the Member
might
or could do. The Member hereby ratifies and confirms all that the
Bank
shall lawfully do or cause to be done by virtue of this special power
of
attorney. This special power of attorney is granted for a period
commencing on the date hereof and continuing until the discharge of
all
Indebtedness and all obligations of the Member hereunder regardless
of
any default by the Member, is coupled with an interest, and is
irrevocable for the period granted.
Section 3.12 Subordination of Other Loans to First Mortgage Collateral.
The Member hereby agrees that all mortgage notes which are part of
the
First Mortgage Collateral ("pledged notes") shall have priority in
right
and remedy over any other loans, whenever made, and, however
evidenced, which are also secured by the mortgages or security
agreements securing the pledged notes. The pledged notes shall be
satisfied out of the property (or proceeds thereof) covered by
such mortgages or security agreements before any payment is made on
the
loans which are not part of the Collateral. To this end, the Member
hereby subordinates the lien of such mortgages and security agreements
with respect to such other loans to the lien of such mortgages and
security agreements with respect to the pledged notes. The Member
further agrees to retain possession of all notes or other instruments
evidencing such other loans and not to pledge, assign, or transfer
the
same, except insofar as such other loans may be pledged to the Bank
as
part of the Collateral.
Section 3.13 Proceeds of Collateral. The Member, as the Bank's agent,
shall collect all payments when due on all Collateral. If the Bank
so
requires, the Member shall hold such collections separate from its
other
monies in one or more designated cash collateral accounts maintained
at
the Bank and apply them to the reduction of Indebtedness as it becomes
due; otherwise, the Bank consents to the Member's use and disposition
of
all such collections.
ARTICLE IV: DEFAULT; REMEDIES
Section 4.01 Events of Default: Acceleration. Upon the occurrence
of any
of the following events or conditions of default ("Event of Default"),
the Bank may at its option, by a notice to the Member, declare all
or
any part(s) of the Indebtedness and accrued interest thereon, including
any prepayment fees or charges which are applicable to any Advance,
to
be immediately due and payable without presentment, demand, protest,
or
any further notice:
(A) Failure of the Member to pay when due any interest on or principal
of any Advance: or
(13) Failure of the Member to perform any promise or obligation or
to
satisfy any condition or liability contained herein, in any Application,
in any Confirmation of Advance or in any other agreement to which
the
Member and the Bank are parties; or
(C) Evidence coming to the attention of the Bank that any
representations, statements, or warranties made or furnished in any
manner to the Bank by or on behalf of the Member in
connection with any Advance or Swap Transaction, any specification
or
description of Qualifying Collateral or any report or certification
concerning the status, value, or principal balance of any item of
Collateral was false in any material respect when made or furnished;
or
(D) Failure of the Member to maintain adequate Qualifying Collateral
free of any encumbrances
or claims as required herein, or
(E) The Issuance of any tax, levy, seizure, attachment, garnishment,
levy of execution, or other process with respect to the Collateral;
or
(F) Any suspension of payment by the Member to any creditor of sums
due
or the occurrence of any event which results in another creditor having
the right to accelerate the maturity of any indebtedness of the Member
under any security agreement, indenture, loan agreement, or comparable
undertaking; or
(G) Appointment of a conservator, receiver, or similar official for
the
Member or any subsidiary of the Member, of the Member's property,
entry
of a judgment or decree adjudicating the
Member or any subsidiary of the Member insolvent or bankrupt or an
assignment by the Member or any subsidiary of the Member for benefit
of
creditors; or
(H) Sale by the Member of all or a material part of the Member's assets
or the taking of any other action by the Member to liquidate or
dissolve; or
(I) Termination for any reason of the Member's membership in the Bank,
or the Member's ceasing to be a type of entity that is eligible under
the Act to become a member of the Bank: or
(J) Merger, consolidation or other combination of the Member with
an
entity which is not a member of the Bank if the nonmember entity is
the
surviving entity; or
(K) With respect to Advances made pursuant to Section 11(g)(4) of
the
Act, if the creditor liabilities of the Member, excepting liabilities
to
the Bank, are increased in any manner to an amount exceeding five
percent (5%) of the Member's net assets; or
(L) The Bank reasonably and in good faith determines that a material
adverse change has occurred in the financial condition of the Member
from that disclosed at the time of the making
of any Advance or from the condition of the Member as theretofore
most
recently disclosed to the Bank.
Section 4.02 Remedies. Upon the occurrence of any Event of Default,
the
Bank shall have all of the rights and remedies provided by applicable
law which shall include, but not be limited to, all of the remedies
of a
secured party under the Uniform Commercial Code as in effect in the
State of Georgia. In addition, the Bank may take immediate possession
of
any of the Collateral or any part thereof wherever the same may be
found. The Bank may sell, assign and deliver the Collateral or any
part
thereof at public or private sale for such price as the Bank deems
appropriate without any liability for any loss due to decrease in
the
market value of the Collateral during the period held. The Bank shall
have the right to purchase all or part of the Collateral at such sale.
If the Collateral includes insurance or securities which will be
redeemed by the issuer upon surrender, or any accounts or deposits
in
the possession of the Bank, the Bank may realize
upon such Collateral without notice to the Member. If any notification
of intended disposition of any of the Collateral is required by
applicable law, such notification shall be deemed reasonable
and properly given if given as provided by applicable law or in
accordance with Section 5.06 hereof at least 5 days before any such
disposition. The proceeds of any sale shall be applied in the
order that the Bank, in its sole discretion, may choose. The Member
agrees to pay all the costs and expenses of the Bank in the collection
of the Indebtedness and enforcement of the Bank's rights
and remedies in case of default, including, without limitation,
reasonable attorneys' fees. The Bank shall, to the extent required
by
law, apply any surplus, after (i) payment of the indebtedness, (ii)
provision for repayment to the Bank of any amounts to be paid or
advanced under Outstanding Commitments, and (iii) payment of all costs
of collection and enforcement, to the claims of person(s) legally
entitled thereto, with any remaining surplus paid to the Member.
The Member shall be liable to the Bank for any deficiency remaining.
Section 4.03 Payment of Prepayment Charges. Any prepayment fees or
charges applicable to an Advance shall be payable at the time of any
voluntary or involuntary payment of all or part of the
principal of such Advance prior to the originally scheduled maturity
thereof, including without limitation payments that are made as a
part
of a liquidation of the Member or that become due by operation of
law or
as a result of an acceleration pursuant to Section 4.01 hereof, whether
such payment is made by the Member, by a conservator, receiver,
liquidator or trustee of or for the Member, or by any successor to
or
any assignee of the Member.
ARTICLE V: MISCELLANEOUS
Section 5.01 General Representations and Warranties by the Member.
The
Member hereby represents and warrants that, as of the date hereof
and
the date of each Advance hereunder
(A) The Member is not, and neither the execution of nor the performance
of any of the transactions or obligations of the Member under this
Agreement shall, with the passage of time, the giving of notice or
otherwise, cause the Member to be: (i) in violation of its charter
or
articles of incorporation, by-laws, the Act or the Regulations, any
other law or administrative regulation, or any court decree; or (ii)
in
default under or in breach of any material indenture, contract or
other instrument or agreement to which the Member is a party or by
which
it or any of its property is bound.
(B) The Member has full corporate power and authority and has received
all corporate and governmental authorizations and approvals (including
without limitation those required under the Act and the Regulations)
as
may be required to enter into and perform its obligations under this
Agreement, to borrow each Advance and to obtain each commitment for
Advance.
(C) The information given by the Member in any document provided,
or in
any oral statement made, in connection with an application or request
for an Advance or commitment for Advance, is true, accurate and complete
in all material respects.
Section 5.02 Assignment. The Bank may assign or negotiate to any other
Federal Home Loan Bank or to any other person or entity, with or without
recourse, any Indebtedness of the Member or participations therein,
and
the Bank may assign or transfer all or any part of the Bank's right,
title, and interest in and to this Agreement and may assign and deliver
the whole or any part of the Collateral to the transferee, which shall
succeed to all the powers and rights of the Bank in
respect thereof, and the Bank shall thereafter be forever relieved
and
fully discharged from any liability or responsibility with respect
to
the transferred Collateral. The Member may not assign
or transfer any of its rights or obligations hereunder without the
express prior written consent of the Bank.
Section 5.03 Discretion of the Bank to Grant or Deny Advances. Nothing
contained herein or in any documents describing or setting forth the
Bank's credit program and credit policies shall be
construed as an agreement or commitment on the part of the Bank to
grant
Advances or extend commitment for Advances hereunder, the right and
power of the Bank in its discretion to either
grant or deny any Advance or commitment for an Advance requested
hereunder being expressly reserved. The determination by the Bank
of
Lendable Collateral Value shall not constitute a
determination by the Bank that the Member may obtain Advances or
commitments for Advances in amounts up to such Lendable Collateral
Value.
Section 5.04 Amendment; Waivers. No modification, amendment or waiver
of
any provision of this Agreement or consent to any departure therefrom
shall be effective unless in a writing executed by a responsible officer
of the party against whom such change is asserted and shall be
effective only in the specific instance and for the purpose of which
given. No notice to or demand on the Member in any case shall entitle
the Member to any other or further notice or demand
in the same, or similar or other circumstances. Any forbearance,
failure or delay by the Bank in
exercising any right, power or remedy hereunder shall not be deemed
to
be a waiver thereof, and any single or partial exercise by the Bank
of
any right, power or remedy hereunder shall not preclude the further
exercise thereof. Every right, power and remedy of the Bank shall
continue in full force and effect until specifically waived by the
Bank
in writing.
Section 5.05 Jurisdiction: Legal Fees. In any action or proceeding
brought by the Bank or the Member in order to enforce any right or
remedy under this Agreement, the parties hereby consent
to, and agree that they will submit to, the jurisdiction of the United
States District Court for the Northern District of Georgia or, if
such
action or proceeding may not be brought in Federal court,
the jurisdiction of the courts cf the State of Georgia located in
the
City of Atlanta. The Member agrees that if any action or proceeding
is
brought by the Member seeking to obtain any legal or
equitable relief against the Bank under or arising out of this Agreement
or any transaction contemplated hereby and such relief is not granted
by
the final decision, after any and all appeals,
of a court of competent jurisdiction, the Member will pay all attorneys'
fees and other costs incurred by the Bank in connection therewith.
Section 5.06 Notices. Except as provided in the last sentence of this
Section, any written notice, advice, request, consent or direction
given, made or withdrawn pursuant to this Agreement shall
be either in writing or transmitted electronically and reproduced
mechanically by the addressee, and shall be given by first class mail,
postage prepaid, by telecopy or other facsimile transmission, or by
private courier or delivery service. All non-oral notices shall be
deemed given when actually received at the principal office of the
Bank
or the Member, as appropriate. All notices shall be designated to
the
attention of an officer or section of the Bank or of the Member
if the Bank or the Member has made a request for the notice to be
so
addressed. Any notice by the Bank to the Member pursuant to Sections
3.05 or 3.06 hereof may be oral and shall be deemed to have been duly
given to and received by the Member at the time of the oral
communication.
Section 5.07 Signatures of Member. For purposes of this Agreement,
documents shall be deemed signed by the Member when a signature of
an
authorized signatory or an authorized facsimile
thereof appears on the document. The Bank may rely on any signature
or
facsimile thereof which reasonably appears to the Bank to be the
signature of an authorized person, including signatures
appearing on documents transmitted electronically to and reproduced
mechanically at the Bank. The Secretary or an Assistant Secretary
of the
Member shall from time to time certify to the Bank
on forms provided by the Bank the names and specimen signatures of
the
persons authorized to apply on behalf of the Member to the Bank for
Advances and commitments for Advances and otherwise act for and on
behalf of the Member in accordance with this Agreement. Such
certifications are incorporated herein and made a part of this Agreement
and shall continue in effect until expressly revoked in writing by
the
Member notwithstanding that subsequent certifications may authorize
additional persons to act for and on behalf of the Member.
Section 5.08 Applicable Law: Severability. In addition to the terms
and
conditions specifically set forth herein and in any application or
confirmation of Advance between the Bank and the
Member, this Agreement and all Advances and all commitments for Advances
shall be governed by the statutory and common law of the United States
and, to the extent Federal law incorporates or defers to state law,
the
laws (exclusive of the choice of law provisions) of the State of
Georgia. Notwithstanding the foregoing, the Uniform Commercial Code
as
in effect in the State of Georgia shall be deemed applicable to this
Agreement and to any Advance hereunder and shall govern the attachment
and perfection of any security interest granted hereunder. In the
event
that any portion of this Agreement conflicts with applicable law,
such
conflict shall not affect other provisions of this Agreement which
can
be given effect without the conflicting provision, and
to this end the provisions of this Agreement are declared to be
severable.
Section 5.09 Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the successors and permitted assigns
of
the Member and the Bank.
Section 5.10 Entire Agreement. This Agreement embodies the entire
agreement and understanding between the parties hereto relating to
the
subject matter hereof and supersedes all prior agreements between
such
parties which relate to such subject matter. Notwithstanding the
above, rates of interest, repayment schedules, and fees and other
charges applicable to Advances and commitments for Advances made by
the
Bank to the Member prior to the execution of this
Agreement shall continue to be governed exclusively by the terms of
the
prior agreements pursuant to which such Advances and commitments for
Advances were made, provided, however, that Section 4.03 hereof shall
apply to all Advances.
IN WITNESS WHEREOF, Member and Bank have caused this Agreement
to be signed in their names by their duly authorized officers as of
the
date first above mentioned.
POINTE BANK
_______________________________________________________________________
(Full Corporate Name of Member)
By:_____________________________ R. CARL PALMER, JR., PRESIDENT/CEO
(Authorized Signature) (Typed Name and Title of Signer)
By:_____________________________ BRADLEY R. MEREDITH, SVP/CFO
(Authorized Signature) (Typed Name and Title of Signer)
(MEMBER'S CORPORATE SEAL)
FEDERAL HOME LOAN BANK OF ATLANTA
By:_____________________________ Senior Vice President and
(Authorized Signature) Chief Finacial Officer
(Title)
By:_____________________________ Vice President & Director
(Authorized Signature) of Collateral Services
(Title)
FEDERAL HOME LOAN BANK OF ATLANTA
MEMBER ACKNOWLEDGEMENT AND NOTARIZATION
STATE OF FLORIDA
County of PALM BEACH ss:
On this 24th day of NOVEMBER, 1997, before me personally came R. CARL
PALMER, JR. and BRADLEY R. MEREDITH, to me known, who being by
me
duly sworn, did despose and state that they are the PRESIDENT/CHIEF
EXECUTIVE OFFICER of said Member; the Member described in and which
executed the above instrument; that they know the seal of said Member;
that the seal affixed to said instrument is such corporate seal; that
it
was affixed by order of the Board of Directors or other governing
body
of said Member; and that they signed their names thereto by order
of the
Board of Directors or other governing body of said Member and that
said
R. CARL PALMER, JR. and BRADLEY R. MEREDITH acknowledged the execution
of said instrument to be the voluntary act and deed of said Member.
______________________________________
Notary Public Signature
Notary Public in and for the State of Florida (NOTARY PUBLIC'S SEAL)
My commission expires: _____________________
(This page intentionally left blank.)
FEDERAL HOME LOAN BANK OF ATLANTA
1475 Peachtree Street, N.E.
Atlanta, Georgia 30309
P.O. Box 105565
Atlanta, Georgia 30348
(404) 888-8000
July 14, 1997
Mr. Brad Meredith
Chief Financial Officer
Pointe Bank
21845 Powerline Road
Boca Raton, FL 33433
Dear Mr. Meredith:
I am pleased to confirm that the Bank has increased the Credit
Availability for Pointe Bank. The increased Credit Availability for
Pointe Bank is $30 million.
The Credit Availability is established to let you know, up front,
what
your borrowing capacity is. You may request additional funding or
an
increase to your Credit Availability by calling your credit analyst
and
the Bank's Credit Committee will review and act upon your request.
The Credit Availability is based on Pointe Bank's present financial
and
operating condition and may be revised if the Bank determines there
is a
change in these conditions. The ability to draw funds will be subject
to
Pointe Bank's continued creditworthiness, compliance with the terms
and
conditions of the application/draw request form, and the pledging
of
sufficient eligible collateral to secure advances. Additionally, you
are
asked to consult with your credit analyst prior to requesting any
significant advance draw (i.e., an advance in excess of 5% of the
institution's total assets).
If you have any questions about Credit Availability or about our
products and services, please do not hesitate to call me at 1-800-536-
9650. We look forward to assisting you with your funding needs.
Sincerely,
/s/ Randy B. Gonzalez
Randy B. Gonzalez
Vice President and
Director of Credit Administration
RBG/lw
FEDERAL HOME LOAN BANK OF ATLANTA
APPLICATION FOR WITHDRAWAL OF COLLATERAL AND OFFICER'S
CERTIFICATION
TO: FEDERAL HOME LOAN BANK OF ATLANTA
ATTN: Collateral Dept.
1475 Peachtree Street, N.E.
Atlanta, Georgia 30309
BRADLEY MEREDITH, SENIOR VICE PRESIDENT
attention
POINTE BANK
institution name
21845 POWERLINE ROAD
address
BOCA RATON, FLORIDA 33433
city State zip
WE REQUEST APPROVAL TO WITHDRAW THE FOLLOWING COLLATERAL
PLEDGED TO
THE
BANK:
THIS COLLATERAL IS: ( ) DELIVERED TO FHL
( ) ASSIGNED AND HELD IN TRUST BY
THIS INSTITUTION
MEMBER ACCOUNT NUMBER
(FIRST SIX DIGITS OF INSTITUTION 036418
DEMAND ACCOUNT NUMBER)
DATE OF RELEASE 121097
TAPE NO. (If applicable)
TOTAL DOLLAR AMOUNT
OF COLLATERAL TO BE RELEASED $31,632,944
TOTAL NUMBER OF
LOANS TO BE
RELEASED (ALL PAGES) 314
OFFICER'S CERTIFICATION:
I hereby certify that the Collateral listed below constitutes excess
Collateral
as set forth below under the Collateral Reconciliation and that the
release,
reassignment and delivery thereof is permitted by Section 3.06 of
the
Advances,
Specific Collateral Pledge and Security Agreement, or Section 3.07
of
the
Agreement for Advances, Security Agreement with Blanket Floating Lien,
subject
to determination by the Federal Home Loan Bank that the Lendable
Collateral
Value of the remaining Qualifying Collateral is not less than the
current
required Collateral Maintenance Level and is not required to be
maintained as
additional Collateral.
Signature of Authorized Institution Officer Title Page 1
of 1
LOAN NUMBER UNPAID BALANCE RESERVED
List in Numerical Order and As shown on Most Recent (For Federal
Home
Loan Bank Use)
Exactly as it Appears on Most Status Report
Recent Status Report (Including
Spaces and Dashes)
AS THE MEMBER INSTITUTION HAS EXECUTED AN "AGREEMENT FOR
ADVANCES
AND
SECURITY
AGREEMENT WITH BLANKET FLOATING LIEN" DATED NOVEMBER 24,
1997, THE
MEMBER
INSTITUTION IS RELEASED FROM THE REQUIREMENT OF ASSIGNING
SPECIFIC
COLLATERAL TO
THE FEDERAL HOME LOAN BANK OF ATLANTA.
COLLATERAL RECONCILIATION )To be completed by Institution)
A. AGGREGATE UNPAID BALANCE OF QUALIFYING MORTGAGE
COLLATERAL
PLEDGED PRIOR TO THIS WITHDRAWAL (AS SHOWN ON MOST
RECENT
STATUS REPORT OR WITHDRAWAL OF COLLATERAL FORM)
$31,632,944
B. UNPAID BALANCE OF QUALIFYING MORTGAGE COLLATERAL
WITHDRAWN THIS DATE -31,632,944
C. NEW AGGREGATE UNPAID BALANCE OF QUALIFYING
MORTGAGE COLLATERAL PLEDGED (A Less B Must Equal C) $ -
0-
SEE ATTACHED RECONCILIATION FOR BALANCING TO THIS
APPLICATION AFTER
RELEASE IS PROCESSED
APPROVED DATE 1/2/98
Federal Home Loan Bank of Atlanta
O/S ADVANCES DOCUMENTS REC'D N/A 1/30
POSTING
LCV DATE SHIPPED 1/2/98
DATE
ENTRY
LCV EXCESS APPROVED BY 1/8/98
EDIT
APPROVED DATE 1/12/98
UPDATE
*Please forward both copies of this form to FHLB and make a photocopy
for your
records.
The duplicate copy will be returned to you after FHLB approval.
(LOGO)
INFORMATION TECHNOLOGY INC.
SUBSCRIPTION AGREEMENT
This agreement made and entered into by and between Information Technology,
Inc. (the "Vendor") and "Customer" identified below the date executed by
Vendor.
Vendor hereby agrees to provide until December 31, 1999 (the "Subscription
Period"), at the subscription fee set forth below, the right to use the Y2KDB
Module (hereinafter the "Software"). The Software shall be subject to all the
restrictions and obligations of the Software License Agreements (sometimes
collectively referred to as the "License Agreement") which currently or
hereafter exist between Customer and Vendor, including, without limitation,
the provisions thereof relating to protection of the proprietary rights of
Vendor and maintenance of confidential information of Vendor but exclusive of
the payment of license fees specified under the License Agreement.
During the Subscription Period Vendor hereby grants to Customer the right to
use the Software at the location identified in the License Agreement, at a
backup facility or at a SunGard facility and on any CPU but, for only
accounts processed by Customer under the License Agreement.
Unless sooner terminated pursuant to the provisions of the License Agreement,
the Subscription Period shall commence on the delivery date of the above
referenced Software.
SUBSCRIPTION FEE: $2,500.00* LOCATION: Pointe Financial
Corporation
DUE UPON EXECUTION: 50% 21845 Powerline Road
PRODUCT NUMBER: 101-011 Boca Raton, FL 33433
CPU: NX4601 -11 under 15,000 accounts (Al 16)
CUSTOMER:
POINTE FINANCIAL CORPORATION
21845 Powerline Road 33433
Boca Raton, FL 33433
/s/
Signature
PAMELA A. OLSON
Name
VICE PRESIDENT
Title:
FEBRUARY 16,1998
Date
VENDOR:
INFORMATION TECHNOLOGY, INC.
1345 Old Cheney Road
Lincoln, NE 68512
/s/
Signature
Michael K. Young
Name
Executive Vice President
Title
February 23, 1998
Date Executed
*One half of the initial Subscription Fee (balance due) is waived if a
designated representative of Customer successfully completes the ITI Year
2000 Training Seminar.
INFORMATION TECHNOLOGY INC.
SOFTWARE LICENSE AGREEMENT
Agreement made between Information Technology, Inc. (the "Vendor"),
and the "Customer" identified below.
1. LICENSED SOFTWARE
1.1 LICENSE. Vendor grants to Customer and Customer accepts from
Vendor a nonexclusive and nontransferable license to use the software
identified in Appendix A (the "Software") under the terms set forth in this
agreement. The license herein granted shall commence upon the date of
delivery of the software and shall remain in effect for so long as Vendor's
warranties set forth in Article V remain in effect.
1.2 PROPRIETARY NATURE OF SOFTWARE AND TITLE. The Software and any
operations manuals, instructions, and other documents or written materials
provided to Customer as instruction in the use of the Software (the
"Documentation") are acknowledged by Customer to be and contain Vendor's
proprietary information and trade secrets, whether or not any portion thereof
is or may be validly copyrighted or patented, acknowledged to be protected by
civil and criminal law, and acknowledged to be of great value to Vendor.
Except as specifically licensed under this agreement, title and all ownership
rights to the Software and the Documentation remain with Vendor. Customer
shall retain or affix such evidences of ownership and proprietary notices as
Vendor may reasonably request This paragraph shall survive the term or
termination of this agreement.
1.3 USE OF SOFTWARE. The Software may be used only for, by and on
behalf of Customer and only in connection with Customer's business operations
This license is granted only for use at a single location identified in
Appendix A and upon a single computer system (CPU) identified in Appendix A
and may not be used upon any other computer or at any other location except
as provided under Paragraph 1.4.
1.4 BACKUP AND EMERGENCY USE. In the event Customer is unable to
use the Software at the location identified in Appendix A due to an
emergency, or to test emergency procedures, Vendor grants to Customer the
right to use the Software at a location other than the location defined in
Appendix A. Any such use shall be subject to all other restrictions of this
agreement and shall continue only so long as the condition giving rise to
such use continues. Prior to commencing such use, if possible, and in any
event within forty-eight (48) hours of such use. Customer shall give Vendor
written notice of the circumstance, location and the expected length of such
use. Failure to give notice shall nullify Customers right of emergency use,
as herein granted.
1.5 ASSIGNMENT. Customer rights under this agreement and in and to
the Software may not be assigned, licensed, sublicensed, pledged, or
otherwise transferred voluntarily, by operation of law or otherwise without
Vendors prior written consent, and any such prohibited assignment shall be
null and void.
II. CONSIDERATION
2.1 LICENSE FEE. In consideration of the license of the Software
granted under this agreement, Customer shall pay to Vendor the license fee
specified in Appendix A. Such license fee does not include, except as
expressly provided in this agreement or Appendix A hereto, installation or
maintenance of the Software, data base conversion, media, transportation
charges or taxes, all of which costs and taxes shall be the obligation of
Customer.
2.2 MANNER OF PAYMENT. The license fee listed in Appendix A
shall
be payable in the following manner
(A) A percentage of the license fee, as specified in Appendix A, upon
execution of this license agreement by Customer.
(B) The balance, including any applicable taxes, upon delivery of the
Software by Vendor to Customer.
Invoices respecting the license fee shall be rendered in accordance with the
above payment schedule and are payable to Vendor at Vendors address set forth
below within ten (110) days of receipt.
2.3 TAXES. In addition to the license fee payable hereunder,
Customer shall pay all taxes (including, without limitation, sales, use,
privilege, ad valorem or excise taxes) and customs duties paid or now or
hereafter payable, however designated, levied or based on amounts payable to
Vendor hereunder, on Customers use or possession of the Software under this
agreement or upon the presence of the Software at the location identified in
Appendix A, but exclusive of federal, state and local taxes based on Vendor's
net income, Customer shall not deduct from payments to Vendor any amounts
paid or payable to third parties for customs duties or taxes, however
designated.
2.4 CURRENCY. The purchase price and any other charges arising
under this agreement shall be invoiced and be payable in U.S. Dollars.
2.5 LATE PAYMENT. Customer shall pay a late payment charge of one
and one-half percent (1 1/2%) per month, or the maximum late payment charge
permitted by applicable law, whichever is less, on any amount payable by
Customer under this Agreement and not paid when due. Said late payment charge
shall be applied for each calendar month (or fraction thereof) that such
payment is not made following its due date.
2.6 SECURITY. Vendor reserves and Customer grants to Vendor a
security interest in the rights of Customer for use of the Software and in
the Documentation as security for the performance by Customer of its
obligations hereunder including, but not limited to, payment of the license
fee set forth in Appendix A. A copy of this agreement may be filed in
appropriate filing offices at any time after signature by Customer as a
financing statement or Vendor may require and Customer shall execute a
separate financing statement for purposes of perfecting Vendor's security
interest granted pursuant to the provisions of this paragraph
III. DELIVERY, TRAINING AND OPERATION
3.1 DELIVERY. Vendor shall deliver the Software and Customer shall
accept delivery of the Software at Customer's address set forth below. Unless
delayed, as hereinafter provided for, delivery shall be completed within one
(1 ) year of the date accepted by Vendor.
3.2 DELIVERY DELAYS. In the event Customer requests delay of
delivery, Vendor shall not be obligated to effect delivery of the Software
except upon thirty (30) days written notice by Customer to Vendor. If delay
in delivery is due to any cause beyond the control of Vendor, the date upon
which delivery is to be completed shall be extended by the number of days of
such delay.
3.3 TRAINING. Classes in the operation of the Software are
available at the offices of Vendor on a regularly scheduled basis. Customers
entitlement, if any, to such training is as set forth in Appendix A for such
additional charges, if any, as may be set forth therein. Reasonable
additional training will be provided to Customer at the offices of Vendor
upon Customer's request, at Vendors normal rates with respect thereto. All
travel, meal and lodging expenses of Customer in connection with such
training shall be borne by Customer. On-site training or assistance will be
available solely at Vendor's discretion and will be charged to Customer at
Vendor's normal rates together with reasonable expenses for travel, meals,
lodging and local transportation.
3.4 ASSISTANCE BY CUSTOMER. Customer shall provide reasonable
assistance and cooperation to Vendor in preparation of the Software and the
delivery or installation thereof. Such assistance and cooperation shall
include, as appropriate, reasonable access to Customer's facility and to
Customer's records, as necessary.
3.5 DOCUMENTATION. Operations manuals in respect to the Software
will be delivered to Customer prior to or contemporaneously with the delivery
of the Software.
3.6 RISK OF LOSS. If the Software or the Documentation is lost or
damaged, in whole or in part, during shipment, Vendor will replace said
Software or Documentation at no additional charge to Customer Upon delivery
in good condition of the Software and the Documentation, Customer shall be
responsible therefor and bear the risk of loss for said Software and
Documentation.
3.7 CONVERSION ASSISTANCE. Vendor may, at its sole discretion,
assist Customer in the conversion of Customer's files from a computer
processor or in-house computer system at Vendor's normal charges for such
assistance. Expenses, including but not limited to computer time, travel,
meals, lodging and local transportation incurred connection therewith, shall
be borne by Customer. In no event shall Vendor be liable to Customer for loss
of profits, consequential, incidental, indirect or special damages arising
from Vendors efforts to assist in the conversion of Customer's files. Vendor
agrees to treat Customer's confidential business with the same security as it
would its own.
3.8 OPERATION. Customer acknowledges and agrees that it is
exclusively responsible for the operation, supervision, management and
control of the Software. including, but not limited to, providing adequate
training for its personnel, instituting appropriate security procedures, and
implementing reasonable procedures to examine and verify all output before
use Vendor shall have no responsibility or liability for Customer's selection
or use of the Software or any associated equipment.
3.9 CUSTOMER OBLIGATIONS. In order to maintain the continuing
integrity and proper operation of the Software, Customer agrees to implement,
in the manner instructed by Vendor, each error correction and each
enhancement and improvement provided to Customer by Vendor Customer's failure
to do so shall relieve Vendor of any responsibility or liability whatsoever
for any failure or malfunction of the software as modified by a subsequent
correction or improvement, but in no such event shall Customer be relieved of
the responsibility for payment of fees and charges otherwise properly
invoiced during the term hereof. If requested by Vendor, Customer agrees to
provide written documentation and details to Vendor to substantiate problems
and to assist Vendor in the identification and detection of problems, errors
and malfunctions, and Customer agrees that Vendor shall have no obligation or
liability for said problems until it has received such documentation and
details from Customer
IV. VENDOR'S PROPRIETARY RIGHTS
4.1 NON-DISCLOSURE. Customer shall take all reasonable steps
necessary to ensure that neither the Software nor the Documentation, nor any
portion thereof, on magnetic tape or disk or in any other form, is made
available or disclosed by Customer or any of its agents or employees to any
other person, firm or corporation. Customer may disclose relevant aspects of
the Software and Documentation to its employees and agents to the extent such
disclosure is reasonably necessary to Customer's use of the Software,
provided, however, Customer agrees that it will cause all persons permitted
such access to the Software and the Documentation to observe and perform the
foregoing non- disclosure covenant, and that it will advise Vendor of the
procedures employed for this purpose. Customer shall hold Vendor harmless
against any loss, cost, expense, claim or liability, including reasonable
attorney's fees, resulting from Customers breach of this non-disclosure
obligation, This paragraph shall survive the term or termination of this
agreement.
4.2 COPIES. Customer agrees that while the Software and the
Documentation are in its custody and possession, A will not (a) copy or
duplicate or permit anyone else to copy or duplicate any of the Software,
Documentation or information furnished by Vendor, or (b) create or attempt to
create, or permit others to create or attempt to create, by reverse
engineering or otherwise, the source programs or any part thereof from the
object program for the Software, the Documentation or other information made
available under this agreement or otherwise, (whether oral, written, tangible
or intangible). Notwithstanding the foregoing, Customer may make and retain
two (2) copies of the Software, including all enhancements and changes
hereto, only for use in emergencies or to test emergency procedures and may
copy for its own use and at its own expense the Documentation, but shall
advise Vendor of the specific item copied, the number of copies made and
their distribution. The original and any copies in whole or in part of the
Software or Documentation which are made pursuant to this provision shall be
the exclusive property of Vendor and shall be fully subject to the provisions
of this agreement. Customer agrees to retain or place Vendors proprietary
notice on any copies or partial copies made pursuant to this provision.
4.3 UNAUTHORIZED ACTS. Customer agrees to notify Vendor immediately
of the unauthorized possession, use, or knowledge of the Software,
Documentation or any information made available to Customer pursuant to this
agreement, by any person or organization not authorized by this agreement to
have such possession, use or knowledge. Customer will, thereafter, fully
cooperate with Vendor in the protection and redress of Vendors proprietary
rights. Customer's compliance with this paragraph shall not, however, be
construed in any way as a waiver of Vendors rights against Customer for
Customers negligent or intentional harm to Vendor s Proprietary rights, or
for breach of Vendor's contractual rights
4.4 INSPECTION. To assist Vendor in the protection of its
proprietary rights, Customer shall permit representatives of Vendor to
inspect the Software and Documentation and their use, including inspection of
any location in which they are being used or kept at all reasonable times.
4.5 INJUNCTIVE RELIEF. If Customer attempts to use, copy, license,
sublicense, sell or otherwise convey or to disclose the Software or
Documentation, in any manner contrary to the terms of this agreement or in
derogation of Vendors proprietary rights, whether such rights are explicitly
herein stated, determined by law or otherwise, Vendor shall have, in addition
to any other remedies available to it, the right to injunctive relief
enjoining such actions, Customer hereby acknowledging that other remedies are
inadequate.
4.6 ACCESS TO SOURCE CODE. Vendor has deposited the Software in
source code form and Documentation sufficient to facilitate maintenance,
modification or correction of the Software with the custodial agent named in
Appendix A. Vendor reserves the right to change said custodial agent at any
time with written notification to Customer within sixty (60) days of said
change. If Vendor, its successors or assigns shall cease to conduct business
for any period in excess of thirty (30) days, Customer shall have the right
to obtain, for its own and sole use only, a single copy of the then current
version of the source code form of the Software supplied under this
agreement, and a single copy of the Documentation associated therewith, upon
payment to the person in control of the said source code form of the Software
of the reasonable cost of making each copy. The source code form of the
Software supplied to Customer under this paragraph shall be subject to each
and every restriction on use set forth in this agreement. Customer
acknowledges that the source code form of the Software and the associated
Documentation are extraordinarily valuable proprietary property of Vendor and
will be guarded against unauthorized use or disclosure with great care.
V. MAINTENANCE, ENHANCEMENTS AND WARRANTIES
5.1 SOFTWARE WARRANTY. Vendor warrants that during the first twelve
(12) months following delivery of the Software (the "Warranty Period"), the
Software will perform in accordance with the then current Documentation
provided Customer, and further warrants that it has the right to authorize
the use of the Software under this agreement. Vendors obligation and
liability under this paragraph shall, however, be limited to the replacement
and correction of the Software so that it will so perform, or to obtaining
any authorization necessary to make effective the grant of license to
Customer of the use of the Software.
5.2 PATENT INFRINGEMENTS. Vendor shall hold harmless and defend
Customer from any claim or any suit based on any claim that the use of the
Software by Customer under this agreement infringes on any patent, copyright,
trademark, or other proprietary right of any third party, provided that
Customer gives Vendor prompt and written notice of any such claim or suit and
permits Vendor to control the defense thereof .
5.3 WARRANTY DISCLAIMER. THE FOREGOING WARRANTIES ARE IN LIEU OF
ALL OTHER WARRANTIES AND NO OTHER WARRANTY IS EXPRESSED OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE.
5.4 RENEWAL OF WARRANTIES. Unless sooner terminated pursuant to the
provisions of paragraph 5.6, the warranties granted by paragraphs 5.1 and 5.2
(subject, however, to all limitations and disclaimers contained within this
agreement) and the right to any enhancements or corrections developed by
Vendor under paragraph 5.5, shall be subject to extension for successive
one-year warranty periods commencing on the first anniversary date of the
delivery of the Software for four (4) successive years. Such extension shall
be deemed to automatically occur unless notice is given by either Customer or
Vendor of an election not to so extend, such notice to be given on or prior
to the sixtieth (60th) day preceding the anniversary date of delivery. Any
such extension shall in no event be effective unless Customer shall have paid
to Vendor on or prior to the anniversary date of delivery an annual
maintenance fee set forth in Appendix A. Extension of Vendors warranties
beyond the fifth (5th) anniversary shall be governed by Vendors maintenance
extension agreement.
5.5 ENHANCEMENTS AND CHANGES. Vendor shall provide Customer with
all enhancements and changes to the Software designed or developed by Vendor
and released to its other customers during the Warranty Period. Any change or
enhancement to the Software, whether developed or designed by Vendor or by
Customer shall be and remain the property of Vendor, provided, however, that
Customer shall be entitled to a perpetual license without additional license
fee of any enhancements or corrections developed by Customer. Vendor reserves
the right to make changes in operating procedures, program language file
structures, access techniques, general purpose programs, data storage
requirements, input and output formats, report formats types of hardware
supported, throughput, and other related programming and documentation
improvements required to maintain the Software current. As part of these
services, Vendor will provide Customer the changes with written instructions
concerning implementation It is understood and agreed that Vendor provision
of improvements and enhancements under this paragraph does not include
providing to Customer a new set of software which may result from rewriting
the Software. Vendor alone shall determine whether the work product of Vendor
constitutes new software as a result of a complete rewrite (which is not
provided to Customer hereunder) or an improvement or enhancement of the
Software (which will be provided to Customer)
5.6 TERMINATION OF WARRANTIES. The warranties expressed in
paragraphs 5.1 and 5.2 and Customers rights under paragraph 5.5 shall
immediately terminate if the Software is revised, changed, enhanced, modified
or maintained by any one other than Vendor without the prior specific
direction or written approval of Vendor.
5.7 LIMITATION OF LIABILITY. Customer expressly agrees that
Vendor's responsibilities in the event of its breach of the warranties
contained in paragraphs 5.1 and 5.2 are as set forth in said paragraphs.
Vendors liability for damages, including but not limited to liability for
patent or copyright infringement, regardless of the form of action, shall not
exceed the license fee set forth in Appendix A to this agreement and shall
arise only if the remedies provided in paragraphs 5.1 and 5.2 are not
fulfilled by Vendor, Customer further agrees that Vendor will not be liable
for any lost profits, or for any claim or demand against Customer by any
other party, except a claim for patent or copyright infringement as provided
herein. IN NO EVENT WILL VENDOR BE LIABLE FOR CONSEQUENTIAL DAMAGES EVEN IF
VENDOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. No action,
regardless of form, arising out of this agreement, may be brought by either
party more than one (1 ) year after the cause of action has accrued, except
that an action for non-payment may be brought within one (1 ) year after the
date of last payment. No action by Vendor for wrongful disclosure or use of
the Software or Documentation shall be deemed to have accrued until Vendor
receives actual notice of such wrongful disclosure or use.
THE CUSTOMER'S REMEDIES SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE
VI. DEFAULT
6.1 TERMINATION. Vendor may terminate this agreement and the
license granted hereunder in the event of a default by Customer unless
Customer shall have cured the event of default, as hereinafter defined,
within twenty (20) days after notice of such event of default given by Vendor
to Customer This agreement and the license granted hereunder shall
automatically terminate if Vendor's warranties are not renewed as
contemplated in paragraph 5.4 hereof Upon any termination of this agreement,
Customer shall deliver to Vendor the Software, the Documentation and all
copies thereof and shall also warrant in writing that all copies have been
returned to Vendor or destroyed.
6.2 EVENTS OF DEFAULT. An event of default is defined as
any of the following:
(A) Customers failure to pay any amounts required to be paid to Vendor under
this agreement on a timely basis,
(B) Any attempt (ie) to assign, sell, mortgage, lease, sublease, license,
sublicense or otherwise convey, (ii) to grant any interest in, right of
use of, or access to, or (iii) to otherwise disclose the Software or the
Documentation, except, in any such case, as herein expressly permitted or
as consented to in writing by the Vendor,
(C) Causing or permitting any encumbrance, of any nature whatsoever to attach
to Customers interest in the Software in favor of any person or entity
other than Vendor,
(D) The entry of any order for relief under any provision of the federal
bankruptcy code in any bankruptcy proceedings initiated by or against
Customer, or
(E) Customer's breach of any of the terms or conditions of this agreement.
6.3 DAMAGES. Upon the occurrence of an event of default without
cure within the period of time above-provided, all license or other fees
payable to Vendor under this agreement shall without notice or demand by
Vendor become immediately due and payable as liquidated damages. This
provision for liquidated damages shall not be regarded as a waiver by Vendor
of any other rights to which it may be entitled in the event of Customer's
default, but rather, such remedy shall be an addition to any other remedy
lawfully available to Vendor.
VII. GENERAL.
7.1 TITLES. Titles and paragraph headings are for reference
purposes only and are not to be considered a part of this agreement.
7.2 FORCE MAJEURE. No party shall be liable for delay in
performance hereunder due to causes beyond its control, including but not
limited to acts of God, fires, strikes, delinquencies of suppliers, acts of
war or intervention by any governmental authority, and each party shall take
steps to minimize any such delay.
7.3 WAIVER. No waiver of any breach of any provision of this
agreement shall constitute a waiver of any prior, concurrent or subsequent
breach of the same or any other provisions hereof and no waiver shall be
effective unless made in writing and signed by an authorized representative
of the party to be charged therewith.
7.4 SEVERABILITY. In the event that any provision of this agreement
shall be illegal or otherwise unenforceable, such provision shall be severed
from this agreement and the entire agreement shall not fail an account
thereof, the balance of the agreement continuing in full force and effect.
7.5 NOTICES. Any notice which either party hereto is required or
permitted to give hereunder shall be addressed to the party to be charged
therewith at the address set forth below and shall be given by certified or
registered mail. Any such notice shall be deemed given on the date of deposit
in the mail.
7.6 ENTIRE AGREEMENT. THE PARTIES HERETO ACKNOWLEDGE THAT EACH HAS
READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS THE
PARTIES FURTHER AGREE THAT THIS AGREEMENT AND ANY MODIFICATIONS MADE PURSUANT
TO IT CONSTITUTE THE COMPLETE AND EXCLUSIVE WRITTEN EXPRESSION OF THE TERMS
OF THE AGREEMENT BETWEEN THE PARTIES. AND SUPERSEDE ALL PRIOR OR
CONTEMPORANEOUS PROPOSALS, ORAL OR WRITTEN, UNDERSTANDINGS, REPRESENTATIONS,
CONDITIONS, WARRANTIES, COVENANTS, AND ALL OTHER COMMUNICATIONS BETWEEN THE
PARTIES RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT THE PARTIES FURTHER
AGREE THAT THIS AGREEMENT MAY NOT IN ANY WAY BE EXPLAINED OR SUPPLEMENTED BY
A PRIOR OR EXISTING COURSE OF DEALINGS BETWEEN THE PARTIES. BY ANY USAGE- OF
TRADE OR CUSTOM, OR BY ANY PRIOR PERFORMANCE BETWEEN THE PARTIES PURSUANT TO
THIS AGREEMENT OR OTHERWISE. IN THE EVENT CUSTOMER ISSUES A PURCHASE ORDER OR
OTHER INSTRUMENT COVERING THE SOFTWARE HEREIN SPECIFIED, IT IS UNDERSTOOD AND
AGREED THAT SUCH PURCHASE ORDER OR OTHER INSTRUMENT IS FOR CUSTOMER'S
INTERNAL USE AND PURPOSES ONLY AND SHALL IN NO WAY AFFECT ANY OF THE TERMS
AND CONDITIONS OF THIS AGREEMENT.
7.7 GOVERNING LAW. This agreement is accepted in the State of
Nebraska, and shall be enforced in accordance with and governed by the laws
of the State of Nebraska.
7.8 CHOICE OF FORUM. Any action arising out of or related to this
agreement or the transaction herein described, whether at law or in equity,
may be instituted in and litigated in the state or federal courts of the
State of Nebraska. In accordance herewith, the parties hereto submit to the
jurisdiction of the courts of said state. Any party being not a resident of
Nebraska at the time of suit hereby appoints the Secretary of State of
Nebraska as its agent for receipt of service of process.
7.9 ATTORNEY'S FEES. In the event that any action or proceeding is
brought in connection with this agreement the prevailing party therein shall
be entitled to recover its costs and reasonable attorney's fees.
7.10 EFFECTIVE DATE. This agreement shall be effective on the date
accepted and executed by an authorized representative of Vendor.
CUSTOMER: VENDOR:
POINTE FINANCIAL CORPORATION INFORMATION TECHNOLOGY,
INC.
Signature: /s/ /s/ Signature: /s/ /s/
Name: R. CARL PALMER, JR. /PAMELA A. OLSON Name: Patrick J. Kerrigan
Title: PRESIDENT-CEO / VICE PRESIDENT Title: Executive Vice
President
Address: 21845 Powerline Road Address: 1345 Old Cheney
Road
Boca Raton, FL 33433 Lincoln, NE
68512
Date: FEBRUARY 24,1997 Date Accepted: February
28, 1997
APPENDIX A
DUE UPON EXECUTION: 30% CUSTODIAL AGENT:
COMPUTER SYSTEM (CPU): NDP500 (A99) West Gate Bank,
1204 West 0 Street, Lincoln, NE
68528
CUSTOMER'S ENTITLEMENT TO TRAINING:
Customer is entitled to 0 days training
for 0 person(s) at $ 0 LOCATION WHERE THE SOFTWARE
PRODUCT(S)
WILL BE USED:
ANNUAL MAINTENANCE FEE: Pointe Financial
Corporation
Twenty percent (20%) of license 21845 Powerline Road
fee exclusive of any discounts. Boca Raton, FL 33433
SOFTWARE PRODUCT(S) AND LICENSE FEE(S):
<TABLE>
<CAPTION>
<S> <C> <C>
106-115 NDP500 MICR Capture, Bulk Filing Interface & Directed Fine Sort $12,950
TOTAL: $12,950
</TABLE>
MKT301/0394
(Logo)
INFORMATION TECHNOLOGY INC.
PRODUCT LICENSE AGREEMENT
Agreement made between Information Technology, Inc. (the "Vendor"),
and the "Customer" identified below.
1. LICENSED PRODUCT
1.1 LICENSE. Vendor grants to Customer and Customer accepts from
Vendor a nonexclusive and nontransferable license to use the products
identified in Appendix A (the "Product") under the terms set forth in this
agreement The license herein granted shall commence upon the date of delivery
of the Product and shall remain in effect for so long as Vendor's warranties
set forth in Article V remain in effect.
1.2 PROPRIETARY NATURE OF PRODUCT AND TITLE. The Product and any
operations manuals, instructions, and other documents or written materials
provided to Customer as instruction in the use of the Product (the
"Documentation") are acknowledged by Customer to be and contain Vendor's
proprietary information and trade secrets, whether or not any portion thereof
is or may be validly copyrighted or patented, acknowledged to be protected by
civil and criminal law, and acknowledged to be of great value to Vendor.
Except as specifically licensed under this agreement, title and all ownership
rights to the Product and the Documentation remain with Vendor. Customer
shall retain or affix such evidences of ownership and proprietary notices as
Vendor may reasonably request. This paragraph shall survive the term or
termination of this agreement
1.3 USE OF PRODUCT. The Product may be used only for, by and on
behalf of Customer and only in connection with Customer's business
operations. This license is granted only for use at a single location
identified in Appendix A and upon a single computer system (CPU) identified
in Appendix A and may not be used upon any other computer or at any other
location except as provided under Paragraph 1.4.
1.4 BACKUP AND EMERGENCY USE. In the event Customer is unable to
use the Product at the location identified in Appendix A due to an emergency,
or to test emergency procedures, Vendor grants to Customer the right to use
the Product at a location other than the location defined in Appendix A. Any
such use shall be subject to all other restrictions of this agreement and
shall continue only so long as the condition giving rise to such use
continues. Prior to commencing such use, if possible, and in any event within
forty-eight (48) hours of such use, Customer shall give Vendor written notice
of the circumstance, location and the expected length of such use. Failure to
give notice shall nullify Customer's right of emergency use, as herein
granted.
1.5 ASSIGNMENT. Customer rights under this agreement and in and to
the Product may not be assigned, licensed, sublicensed, pledged, or otherwise
transferred voluntarily, by operation of law or otherwise without Vendor's
prior written consent, and any such prohibited assignment shall be null and
void.
II. CONSIDERATION
2.1 LICENSE FEE. In consideration of the license of the Product
granted under this agreement, Customer shall pay to Vendor the license fee
specified in Appendix A. Such license fee does not include, except as
expressly provided in this agreement or Appendix A hereto, installation or
maintenance of the Product, data base conversion, media, transportation
charges, or taxes, all of which costs and taxes shall be the obligation of
Customer.
2.2 MANNER OF PAYMENT. The license fee listed in Appendix A
shall
be payable in the following manner:
(A) A percentage of the license fee, as specified in Appendix A, upon
execution of this license agreement by Customer.
(B) The balance, including any applicable taxes, upon delivery of the Product
by Vendor to Customer.
Invoices respecting the license fee shall be rendered in accordance with the
above payment schedule and are payable to Vendor at Vendors address set forth
below within ten (10) days of receipt.
2.3 TAXES. In addition to the license fee payable hereunder,
Customer shall pay all taxes (including, without limitation, sales, use,
privilege, ad valorem or excise taxes) and customs duties paid or now or
hereafter payable, however designated, levied or based on amounts payable to
Vendor hereunder or on Customer's use or possession of the Product under this
agreement or upon the presence of the Product at the location identified in
Appendix A, but exclusive of federal, state and local taxes based on Vendor's
net income Customer shall not deduct from payments to Vendor any amounts Paid
or payable to third parties for customs duties or taxes, however designated.
2 4 CURRENCY. The purchase price and any other charges arising
under this agreement shall be invoiced and be payable in U S. Dollars.
2.5 LATE PAYMENT. Customer shall pay a late payment charge of one
and one-half percent (1 1/2%) per month, or the maximum late payment charge
permitted by applicable law, whichever is less, on any amount payable by
Customer under this Agreement and not paid when due. Said late payment charge
shall be applied for each calendar month (or fraction thereof) that such
payment is not made following its due date.
2.6 SECURITY. Vendor reserves and Customer grants to Vendor a
security interest in the rights of Customer for use of the Product and in the
Documentation as security for the performance by Customer of its obligations
hereunder including, but not limited to, payment of the license fee set forth
in Appendix A. A copy of this agreement may be filed in appropriate filing
offices at any time after signature by Customer as a financing statement or
Vendor may require and Customer shall execute a separate financing statement
for purposes of perfecting Vendor's security interest granted pursuant to the
provisions of this paragraph.
III. DELIVERY, TRAINING AND OPERATION
3.1 DELIVERY. Vendor shall deliver the Product and Customer shall
accept delivery of the Product at Customer's address set forth below. Unless
delayed, as hereinafter provided for, delivery shall be completed with in one
(1) year of the date accepted by Vendor.
3.2 DELIVERY DELAYS. In the event Customer requests delay of
delivery, Vendor shall not be obligated to effect delivery of the Product
except upon thirty (30) days written notice by Customer to Vendor. If delay
in delivery is due to any cause beyond the control of Vendor, the date upon
which delivery is to be completed shall be extended by the number of days of
such delay.
3.3 TRAINING. Classes in the operation of the Product are available
at the offices of Vendor, on a regularly scheduled basis at Vendors normal
rates with respect thereto. All travel, meal and lodging expenses of Customer
in connection with such training shall be borne by Customer. On-site training
or assistance will be available solely at Vendors discretion and will be
charged to Customer at Vendor's normal rates together with reasonable
expenses for travel, meals, lodging and local transportation.
3.4 ASSISTANCE BY CUSTOMER. Customer shall provide reasonable
assistance and cooperation to Vendor in preparation of the Product and the
delivery or installation thereof. Such assistance and cooperation shall
include, as appropriate, reasonable access to Customers facility and to
Customer's records, as necessary.
3.5 DOCUMENTATION. Operations manuals in respect to the Product
will be delivered to Customer prior to or contemporaneously with the delivery
of the Product.
3.6 RISK OF LOSS. If the Product or the Documentation is lost or
damaged, in whole or in part, during shipment, Vendor will replace said
Product or Documentation at no additional charge to Customer. Upon delivery
in good condition of the Product and the Documentation, Customer shall be
responsible therefor and bear the risk of loss for said Product and
Documentation.
3.7 INSTALLATION ASSISTANCE Vendor may at its sole discretion,
assist Customer in any required installation of the Product at Vendor's
normal charges for such assistance Expenses, including but not limited to
computer time, travel, meals lodging and local transportation incurred in
connection therewith shall be borne by Customer In no event shall Vendor be
liable to Customer for loss of profits, consequential, incidental, indirect
or special damages arising from Vendors efforts to assist in such
installation Vendor agrees to treat Customer's confidential business with the
same security as it would its own.
3.8 OPERATION. Customer acknowledges and agrees that it is
exclusively responsible for the operation, supervision, management and
control of the Product, including, but not limited to, providing adequate
training for its personnel, instituting appropriate security procedures, and
implementing reasonable procedures to examine and verify all output before
use. Vendor shall have no responsibility or liability for Customer's
selection or use of the Product or any associated equipment.
3.9 CUSTOMER OBLIGATIONS. In order to maintain the continuing
integrity and proper operation of the Product, Customer agrees to implement,
in the manner instructed by Vendor, each error correction and each
enhancement and improvement provided to Customer by Vendor. Customer's
failure to do so shall relieve Vendor of any responsibility or liability
whatsoever for any failure or malfunction of the Product as modified by a
subsequent correction or improvement, but in no such event shall Customer be
relieved of the responsibility for payment of fees and charges otherwise
properly invoiced during the term hereof. If requested by Vendor, Customer
agrees to provide written documentation and details to Vendor to substantiate
problems and to assist Vendor in the identification and detection of
problems, errors and malfunctions, and Customer agrees that Vendor shall have
no obligation or liability for said problems until it has received such
documentation and details from Customer.
IV. VENDOR'S PROPRIETARY RIGHTS
4.1 NON-DISCLOSURE. Customer shall take all reasonable steps
necessary to ensure that neither the Product nor the Documentation, nor any
portion thereof, on magnetic tape or disk or in any other form, is made
available or disclosed by Customer or any of its agents or employees to any
other person, firm or corporation. Customer may disclose relevant aspects of
the Product and Documentation to its employees and agents to the extent such
disclosure is reasonably necessary to Customer's use of the Product,
provided, however, Customer agrees that it will cause all persons permitted
such access to the Product and the Documentation to observe and perform the
foregoing non- disclosure covenant, and that it will advise Vendor of the
procedures employed for this purpose. Customer shall hold Vendor harmless
against any loss, cost, expense, claim or liability, including reasonable
attorneys fees, resulting from Customers breach of this non-disclosure
obligation. This paragraph shall survive the term or termination of this
agreement.
4.2 COPIES. Customer agrees that while the Product and the
Documentation are in its custody and possession, it will not (a) copy or
duplicate or permit anyone else to copy or duplicate any of the Product,
Documentation or information furnished by Vendor, or (b) create or attempt to
create, or permit others to create or attempt to create, by reverse
engineering or otherwise, the Product, the Documentation or other information
made available under this agreement or otherwise, (whether oral, written,
tangible or intangible). Notwithstanding the foregoing, Customer may make and
retain two (2) copies of the Product, including all enhancements and changes
hereto, only for use in emergencies or to test emergency procedures and may
copy for its own use and at its own expense the Documentation, but shall
advise Vendor of the specific item copied, the number of copies made and
their distribution. The original and any copies in whole or in part of the
Product or Documentation which are made pursuant to this provision shall be
the exclusive property of Vendor and shall be fully subject to the provisions
of this agreement. Customer agrees to retain or place Vendors proprietary
notice on any copies or partial copies made pursuant to this provision.
4.3 UNAUTHORIZED ACTS. Customer agrees to notify Vendor immediately
of the unauthorized possession, use, or knowledge of the Product,
Documentation or any information made available to Customer pursuant to this
agreement, by any person or organization not authorized by this agreement to
have such possession use or knowledge Customer will, thereafter, fully
cooperate with Vendor in the protection and redress of Vendor's proprietary
rights. Customers compliance with this paragraph shall not, however be
construed in any way as a waiver of Vendor's rights against Customer f9r
Customer's negligent or intentional harm to Vendor's proprietary rights, or
for breach of Vendor's contractual rights.
4.4 INSPECTION. To assist Vendor in the protection of its
proprietary rights Customer shall permit representatives of Vendor to inspect
the Product and Documentation and their use, including inspection of any
location in which they are being used or kept at all reasonable times
4.5 INJUNCTIVE RELIEF If Customer attempts to use, copy license,
sublicense sell or otherwise convey or to disclose the Product or
Documentation, in any manner contrary to the terms of this agreement or in
derogation of Vendors proprietary rights, whether such rights are explicitly
herein stated, determined by law or otherwise. Vendor shall have, in addition
to any other remedies available to it, the right to injunctive relief
enjoining such actions, Customer hereby acknowledging that other remedies are
inadequate
V. MAINTENANCE, ENHANCEMENTS AND WARRANTIES
5.1 PRODUCT WARRANTY. Vendor warrants that at delivery, the Product
will perform in accordance with the then current Documentation provided
Customer, and further warrants that it has the right to authorize the use of
the Product under this agreement, Vendors obligation and liability under this
paragraph shall, however, be limited to the replacement and correction of the
Product so that it will so perform, or to obtaining any authorization
necessary to make effective the grant of license to Customer of the use of
the Product.
5.2 PATENT INFRINGEMENTS. Vendor shall hold harmless and defend
Customer from any claim or any suit based on any claim that the use of the
Product by Customer under this agreement infringes on any patent, copyright,
trademark, or other proprietary right of any third party, provided that
Customer gives Vendor prompt and written notice of any such claim or suit and
permits Vendor to control the defense thereof.
5.3 WARRANTY DISCLAIMER. THE FOREGOING WARRANTIES ARE IN LIEU OF
ALL OTHER WARRANTIES AND NO OTHER WARRANTY IS EXPRESSED OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE.
5.4 RENEWAL OF WARRANTIES, Unless sooner terminated pursuant to the
provisions of paragraph 5.6, the warranties granted by paragraphs 5.1 and 5.2
(subject. however, to all limitations and disclaimers contained within this
agreement) and the right to any enhancements or corrections developed by
Vendor under paragraph 5.5, shall be subject to extension for successive
one-year warranty periods commencing on the date of the delivery of the
Product. Each one year extension (the "Warranty Period") shall be deemed to
automatically occur unless notice is given by either Customer or Vendor of an
election not to so extend, such notice to be given on or prior to the
sixtieth (60th) day preceding the Warranty Period, Any such extension shall
in no event be effective unless Customer shall have paid to Vendor on or
prior to the beginning of the Warranty Period its then current annual
maintenance fee.
5.5 ENHANCEMENTS AND CHANGES. Vendor shall provide Customer with
all enhancements and changes to the Product designed or developed by Vendor
and released to its other customers during the Warranty Period. Any change or
enhancement to the Product, whether developed or designed by Vendor or by
Customer shall be and remain the property of Vendor, provided, however, that
Customer shall be entitled to a perpetual license without additional license
fee of any enhancements or corrections developed by Customer. Vendor reserves
the right to make changes in operating procedures, program language, file
structures, access techniques, general purpose programs, data storage
requirements, input and output formats, report formats, types of hardware
supported, throughput, and other related programming and documentation
improvements required to maintain the Product current As part of these
services, Vendor will provide Customer the changes with written instructions
concerning implementation. It is understood and agreed that Vendor provision
of improvements and enhancements under this paragraph does not include
providing to Customer new product which may result from rewriting the
Product. Vendor alone shall determine whether the work product of Vendor
constitutes new product as a result of a complete rewrite (which is not
provided to Customer hereunder) or an improvement or enhancement of the
Product (which will be provided to Customer).
5.6 TERMINATION OF WARRANTIES. The warranties expressed in
paragraphs 5,1 and 5.2 and Customer's rights under paragraph 5 shall
immediately terminate if the Product is revised, changed. enhanced, modified
or maintained by any one other than Vendor without the prior specific
direction or written approval of Vendor.
5.7 LIMITATION OF LIABILITY. Customer expressly agrees that Vendors
responsibilities in the event of its breach of the warranties contained in
paragraphs 5.1 and 5.2 are as set forth in said paragraphs. Vendor's
liability for damages, including but not limited to liability for patent or
copyright infringement, regardless of the form of action, shall not exceed
the license fee set forth in Appendix A to this agreement and shall arise
only if the remedies provided in paragraphs 5. 1 and 5-2 are not fulfilled by
Vendor. Customer further agrees that Vendor will not be liable for any lost
profits, or for any claim or demand against Customer by any other party,
except a claim for patent or copyright infringement as provided herein, IN NO
EVENT WILL VENDOR BE LIABLE FOR CONSEQUENTIAL DAMAGES EVEN IF VENDOR HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. No action, regardless of form,
arising out of this agreement, may be brought by either party more than one
(I) year after the cause of action has accrued, except that an action for
nonpayment may be brought within one (1 ) year after the date of last
payment. No action by Vendor for wrongful disclosure or use of the Product or
Documentation shall be deemed to have accrued until Vendor receives actual
notice of such wrongful disclosure or use.
THE CUSTOMER'S REMEDIES SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE.
VI. DEFAULT
6.1 TERMINATION. Vendor may terminate this agreement and the
license granted hereunder in the event of a default by Customer unless
Customer shall have cured the event of default, as hereinafter defined,
within twenty (20) days after notice of such event of default given by Vendor
to Customer. This agreement and the license granted hereunder shall
automatically terminate if Vendor's warranties are not renewed as
contemplated in paragraph 5.4 hereof Upon any termination of this agreement,
Customer shall deliver to Vendor the Product, the Documentation and all
copies thereof and shall also warrant in writing that all copies have been
returned to Vendor or destroyed.
6.2 EVENTS OF DEFAULT. An event of default is defined as
any of the following:
(A) Customers failure to pay any amounts required to be paid to Vendor under
this agreement on a timely basis.
(B) Any attempt (I) to assign, sell, mortgage, lease, sublease, license,
sublicense or otherwise convey, (ii) to grant any interest in, right of
use of, or access to, or (iii) to otherwise disclose the Product or the
Documentation, except, in any such case, as
herein
expressly permitted or as consented to in writing by the Vendor,
(C) Causing or permitting any encumbrance, of any nature whatsoever to attach
to Customers interest in the Product in favor of any person or entity
other than Vendor:
(D) The entry of any order for relief under any provision of the federal
bankruptcy code in any bankruptcy proceedings initiated by or against
Customer; or
(E) Customers breach of any of the terms or conditions of this agreement.
6.3 DAMAGES, Upon the occurrence of an event of default without
cure within the period of time above-provided, all license or other fees
payable to Vendor under this agreement shall without notice or demand by
Vendor become immediately due and payable as liquidated damages This
provision for liquidated damages shall not be regarded as a waiver by Vendor
of any other rights to which it may be entitled in the event of Customer's
default, but rather, such remedy shall be an addition to any other remedy
lawfully available to Vendor.
VII. GENERAL
7.1 TITLES: Titles and paragraph headings are for reference
purposes only and are not to be considered a part of this agreement.
7.2 FORCE MAJEURE. No party shall be liable for delay in
performance hereunder due to causes beyond its control, including but not
limited to acts of God, fires, strikes, delinquencies of suppliers. acts of
war or intervention by any governmental authority, and each) party shall take
steps to minimize any such delay
7.3 WAIVER No waiver of any breach of any provision of this
agreement shall constitute a waiver of any prior, concurrent or subsequent
breach of the same or any other provisions hereof and no waiver shall be
effective unless made in writing and signed by an authorized representative
of the party to be charged therewith
7.4 SEVERABILITY In the event that any provision of this agreement
shall be illegal or otherwise unenforceable, such provision shall be severed
from this agreement and the entire agreement shall not fail on account
thereof, the balance of the agreement continuing in full force and effect.
7.5 NOTICES. Any notice which either party hereto is required or
permitted to give hereunder shall be addressed to the party to be charged
therewith at the address set forth below and shall be given by certified or
registered mail, Any such notice shall be deemed given on the date of deposit
in the mail.
7.6 ENTIRE AGREEMENT. THE PARTIES HERETO ACKNOWLEDGE THAT EACH HAS
READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS, THE
PARTIES FURTHER AGREE THAT THIS AGREEMENT AND ANY MODIFICATIONS MADE PURSUANT
TO IT CONSTITUTE THE COMPLETE AND EXCLUSIVE WRITTEN EXPRESSION OF THE TERMS
OF THE AGREEMENT BETWEEN THE PARTIES, AND SUPERSEDE ALL PRIOR OR
CONTEMPORANEOUS PROPOSALS, ORAL OR WRITTEN, UNDERSTANDINGS, REPRESENTATIONS,
CONDITIONS, WARRANTIES, COVENANTS, AND ALL OTHER COMMUNICATIONS BETWEEN THE
PARTIES RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT THE PARTIFS FURTHER
AGREE THAT THIS AGREEMENT MAY NOT IN ANY WAY BE EXPLAINED (DR SUPPLEMENTED BY
A PRIOR OR EXISTING COURSE OF DEALINGS BETWEEN THE PARTILS, BY ANY USAGE OF
TRADE OR CUSTOM, OR BY ANY PRIOR PERFORMANCE BETWEEN THE PARTIES PURSUANT TO
THIS AGREEMENT OR OTHERWISE. IN THE EVENT CUSTOMER ISSUES A PURCHASE ORDER OR
OTHER INSTRUMENT COVERING THE SERVICES OR DOCUMENTATION HEREIN SPECIFIED, IT
IS UNDERSTOOD AND AGREED THAT SUCH PURCHASE ORDER OR OTHER INSTRUMENT IS FOR
CUSTOMER'S INTERNAL USE AND PURPOSES ONLY AND SHALL IN NO WAY AFFECT ANY OF
THE TERMS AND CONDITIONS OF THIS AGREEMENT.
7.7 GOVERNING LAW. This agreement is accepted in the State of
Nebraska, and shall be enforced in accordance with and governed by the laws
of the State of Nebraska.
7.8 CHOICE OF FORUM. Any action arising out of or related to this
agreement or the transaction herein described, whether at law or in equity,
may be instituted in and litigated in the state or federal courts of the
State of Nebraska. In accordance herewith, the parties hereto submit to the
jurisdiction of the courts of said state. Any party being not a resident of
Nebraska at the time of suit hereby appoints the Secretary of State of
Nebraska as its agent for receipt of service of process.
7.9 ATTORNEY'S FEES. In the event that any action or proceeding is
brought in connection with this agreement the prevailing party therein shall
be entitled to recover its costs and reasonable attorney's fees.
7.10 EFFECTIVE DATE. This agreement shall be effective on the date
accepted and executed by an authorized representative of Vendor.
CUSTOMER: VENDOR:
POINTE FINANCIAL CORPORATION INFORMATION TECHNOLOGY,
INC.
Signature: /s/ /s/ Signature: /s/ /s/
Name: R. CARL PALMER, JR. /PAMELA A. OLSON Name: Patrick J. Kerrigan
Title: PRESIDENT-CEO / VICE PRESIDENT Title: Executive Vice President
Address: 21845 Powerline Road Address: 1345 Old Cheney Road
Boca Raton, FL 33433 Lincoln, NE 68512
Date: FEBRUARY 24,1997 Date Accepted: February 28, 1997
APPENDIX A
DUE UPON EXECUTION: 30%
COMPUTER SYSTEM NX4601-11 (A116),
LOCATION WHERE THE SOFTWARE PRODUCT(S)
WILL BE USED:
SOFTWARE PRODUCT(S) AND LICENSE FEE(S):
<TABLE>
<CAPTION>
<S> <C> <C>
107-122 Plus Commercial Bank Database $2,652
TOTAL $2,652
</TABLE>
*Accounts being defined as the total of all accounts (open or closed) for
demand deposit, demand deposit loan, savings, time savings, IRA, certificate
of deposit, and loan accounts, whether processed or not by Customer, for the
institutions being serviced by VendorOs software listed in Appendix A.
MKT307/0195
INFORMATION TECHNOLOGY INC.
SOFTWARE LICENSE AGREEMENT
Agreement made between Information Technology, Inc (the "Vendor"), and the
"Customer" identified below.
I. LICENSED SOFTWARE
1.1 LICENSE. Vendor grants to Customer and Customer accepts from
Vendor a nonexclusive and nontransferable license to use the software
identified in Appendix A (the "Software") under the terms set forth in this
agreement. The license herein granted shall commence upon the date of
deliver/ of the software and shall remain in effect for so long as Vendor's
warranties set forth in Article V remain in effect.
1.2 PROPRIETARY NATURE OF SOFTWARE AND TITLE. The Software and any
operations manuals, instructions, and other documents or written materials
provided to Customer as instruction in the use of the Software (the
"Documentation") are acknowledged by Customer to be and contain Vendor's
proprietary information and trade secrets, whether or not any portion thereof
is or may be validly copyrighted or patented, acknowledged to be protected by
civil and criminal law, and acknowledged to be of great value to Vendor,
Except as specifically licensed under this agreement, title and all ownership
rights to the Software and the Documentation remain with Vendor. Customer
shall retain or affix such evidences of ownership and proprietary notices as
Vendor may reasonably request. This paragraph shall survive the term or
termination of this agreement.
1.3 USE OF SOFTWARE. The Software may be used only for, by and on
behalf of Customer and only in connection with Customer's business
operations. This license is granted only for use at a single location
identified in Appendix A and upon a single computer system (CPU) identified
in Appendix A and may not be used upon any other computer or at any other
location except as provided under Paragraph 1.4.
1.4 BACKUP AND EMERGENCY USE. In the event Customer is unable to
use the Software at the location identified in Appendix A due to an
emergency, or to test emergency procedures, Vendor grants to Customer the
right to use the Software at a location other than the location defined in
Appendix A. Any such use shall be subject to all other restrictions of this
agreement and shall continue only so long as the condition giving rise to
such use continues. Prior to commencing such use, if possible, and in any
event within forty-eight (48) hours of such use, Customer shall give Vendor
written notice of the circumstance, location and the expected length of such
use. Failure to give notice shall nullify Customers right of emergency use,
as herein granted.
1.5 ASSIGNMENT. Customer rights under this agreement and in and to
the Software may not be assigned, licensed, sublicensed, pledged, or
otherwise transferred voluntarily, by operation of law or otherwise without
Vendors prior written consent, and any such prohibited assignment shall be
null and void.
II. CONSIDERATION
2.1 LICENSE FEE. In consideration of the license of the Software
granted under this agreement, Customer shall pay to Vendor the license fee
specified in Appendix A. Such license fee does not include, except as
expressly provided in this agreement or Appendix A hereto, installation or
maintenance of the Software, data base conversion, media, transportation
charges or taxes, all of which costs and taxes shall be the obligation of
Customer.
2.2 MANNER OF PAYMENT. The license fee listed in Appendix
A shall be payable in the following manner:
(A) A percentage of the license fee, as specified in Appendix A, upon
execution of this license agreement by Customer.
(B) The balance, including any applicable taxes, upon delivery of the
Software by Vendor to Customer,
Invoices respecting the license fee shall be rendered in accordance with the
above payment schedule and are payable to Vendor at Vendor's address set
forth below within ten (10) days of receipt.
2.3 TAXES. In addition to the license fee payable hereunder,
Customer shall pay all taxes (including, without limitation, sales, use,
privilege, ad valorem or excise taxes) and customs duties paid or now or
hereafter payable, however designated, levied or based on amounts payable to
Vendor hereunder, on Customer's use or possession of the Software under this
agreement or upon the presence of the Software at the location identified in
Appendix A, but exclusive of federal, state and local taxes based on Vendor's
net income. Customer shall not deduct from payments to Vendor any amounts
paid or payable to third parties for customs duties or taxes, however
designated.
2.4 CURRENCY. The purchase price and any other charges arising
under this agreement shall be invoiced and be payable in U.S. Dollars.
2.5 LATE PAYMENT. Customer shall pay a late payment charge of one
and one-half percent (1 1/2%) per month, or the maximum late payment charge
permitted by applicable law, whichever is less, on any amount payable by
Customer under this Agreement and not paid when due. Said late payment charge
shall be applied for each calendar month (or fraction thereto that such
payment is not made following its due date.
2.6 SECURITY. Vendor reserves and Customer grants to Vendor a
security interest in the rights of Customer for use of the Software and in
the Documentation as security for the performance by Customer of its
obligations hereunder including, but not limited to, payment of the license
fee set forth in Appendix A. A copy of this agreement may be filed in
appropriate filing offices at any time after signature by Customer as a
financing statement or Vendor may require and Customer shall execute a
separate financing statement for purposes of perfecting Vendor's security
interest granted pursuant to the provisions of this paragraph.
III. DELIVERY, TRAINING AND OPERATION
3.1 DELIVERY. Vendor shall deliver the Software and Customer shall
accept delivery of the Software at Customers address set forth below. Unless
delayed, as hereinafter provided for, delivery shall be completed within one
(1) year of the date accepted by Vendor.
3.2 DELIVERY DELAYS. In the event Customer requests delay of
delivery, Vendor shall not be obligated to effect delivery of the Software
except upon thirty (30) days written notice by Customer to Vendor. If delay
in delivery is due to any cause beyond the control of Vendor, the date upon
which delivery is to be completed shall be extended by the number of days of
such delay.
3.3 TRAINING. Classes in the operation of the Software are
available at the offices of Vendor on a regularly scheduled basis. Customers
entitlement, if any, to such training is as set forth in Appendix A for such
additional charges, if any, as may be set forth therein. Reasonable
additional training will be provided to Customer at the offices of Vendor
upon Customers request, at Vendor's normal rates with respect thereto. All
travel, meal and lodging expenses of Customer in connection with such
training shall be borne by Customer. On-site training or assistance will be
available solely at Vendors discretion and will be charged to Customer at
Vendor's normal rates together with reasonable expenses for travel, meals,
lodging and local transportation.
3.4 ASSISTANCE BY CUSTOMER. Customer shall provide reasonable
assistance and cooperation to Vendor in preparation of the Software and the
delivery or installation thereof. Such assistance and cooperation shall
include, as appropriate, reasonable access to Customer's facility and to
Customers records, as necessary.
3.5 DOCUMENTATION. Operations manuals in respect to the Software
will be delivered to Customer prior to or contemporaneously with the delivery
of the Software.
16 RISK OF LOSS. If the Software or the Documentation is lost or
damaged, in whole or in part, during shipment, Vendor *11 replace said
Software or Documentation at no additional charge to Customer. Upon delivery
in good condition of the Software and the Documentation, Customer shall be
responsible therefor and bear the risk of loss for said Software and
Documentation.
3.7 CONVERSION ASSISTANCE. Vendor may, at its sole discretion,
assist Customer in the conversion of Customer's files from a computer
processor or in-house computer system at Vendor's normal charges for such
assistance. Expenses, including but not limited to computer time, travel,
meals, lodging and local transportation incurred connection therewith, shall
be borne by Customer In no event shall Vendor be liable to Customer for loss
of profits, consequential, incidental, indirect or special damages arising
from Vendor's efforts to assist in the conversion of Customer's files. Vendor
agrees to treat Customer's confidential business with the same security as it
would its own.
3.8 OPERATION. Customer acknowledges and agrees that it is
exclusively responsible for the operation, supervision, management and
control of the Software, including, but not limited to, providing adequate
training for its personnel, instituting appropriate security procedures, and
implementing reasonable procedures to examine and verify all output before
use. Vendor shall have no responsibility or liability for Customer's
selection or use of the Software or any associated equipment,
3.9 CUSTOMER OBLIGATIONS. In order to maintain the continuing
integrity and proper operation of the Software, Customer agrees to implement,
in the manner instructed by Vendor, each error correction and each
enhancement and improvement provided to Customer by Vendor. Customer's
failure to do so shall relieve Vendor of any responsibility or liability
whatsoever for any failure or malfunction of the software as modified by a
subsequent correction or improvement, but in no such event shall Customer be
relieved of the responsibility for payment of fees and charges otherwise
properly invoiced during the term hereof. If requested by Vendor, Customer
agrees to provide written documentation and details to Vendor to substantiate
problems and to assist Vendor in the identification and detection of
problems, errors and malfunctions, and Customer agrees that Vendor shall have
no obligation or liability for said problems until it has received such
documentation and details from Customer
IV. VENDOR'S PROPRIETARY RIGHTS
4.1 NON-DISCLOSURE. Customer shall take all reasonable steps
necessary to ensure that neither the Software nor the Documentation, nor any
portion thereof, on magnetic tape or disk or in any other form, is made
available or disclosed by Customer or any of its agents or employees to any
other person, firm or corporation, Customer may disclose relevant aspects of
the Software and Documentation to its employees and agents to the extent such
disclosure is reasonably necessary to Customer's use of the Software,
provided, however, Customer agrees that it will cause all persons permitted
such access to the Software and the Documentation to observe and perform the
foregoing non- disclosure covenant, and that it will advise Vendor of the
procedures employed for this purpose. Customer shall hold Vendor harmless
against any loss, cost, expense, claim or liability, including reasonable
attorney's fees, resulting from Customer's breach of this non-disclosure
obligation. This paragraph shall survive the term or termination of this
agreement.
4.2 COPIES. Customer agrees that while the Software and the
Documentation are in its custody and possession, it will not (a) copy or
duplicate or permit anyone else to copy or duplicate any of the Software,
Documentation or information furnished by Vendor, or (b) create or attempt to
create, or permit others to create or attempt to create, by reverse
engineering or otherwise, the source programs or any part thereof from the
object program for the Software, the Documentation or other information made
available under this agreement or otherwise, (whether oral, written, tangible
or intangible). Notwithstanding the foregoing, Customer may make and retain
two (2) copies of the Software, including all enhancements and changes
hereto, only for use in emergencies or to test emergency procedures and may
copy for its own use and at its own expense the Documentation, but shall
advise Vendor of the specific item copied, the number of copies made and
their distribution. The original and any copies in whole or in part of the
Software or Documentation which are made pursuant to this provision shall be
the exclusive prop" of Vendor and shall be fully subject to the provisions of
this agreement. Customer agrees to retain or place Vendor's proprietary
notice on any copies or partial copies made pursuant to this provision.
4.3 UNAUTHORIZED ACTS. Customer agrees to notify Vendor immediately
of the unauthorized possession, use, or knowledge of the Software,
Documentation or any information made available to Customer pursuant to this
agreement, by any person or organization not authorized by this agreement to
have such possession, use or knowledge. Customer will, thereafter, fully
cooperate with Vendor in the protection and redress of Vendor's proprietary
rights. Customers compliance with this paragraph shall not, however, be
construed in any way as a waiver of Vendors rights against Customer for
Customer's negligent or intentional harm to Vendor's proprietary rights, or
for breach of Vendor's contractual rights
4.4 INSPECTION. To assist Vendor in the protection of its
proprietary rights, Customer shall permit representatives of Vendor to 7spect
the Software and Documentation and their use, including inspection of any
location in 'which they are being used or kept at all reasonable times
4.5 INJUNCTIVE RELIEF. If Customer attempts to use, copy, license,
sublicense sell or otherwise convey or to disclose the Software or
Documentation, in any manner contrary to the terms of this agreement or in
derogation of Vendor's proprietary rights, whether such rights are explicitly
herein stated, determined by law or otherwise, Vendor shall have, in addition
to any other remedies available to it, the right to injunctive relief
enjoining such actions, Customer hereby acknowledging that other remedies are
inadequate.
4.6 ACCESS TO SOURCE CODE. Vendor has deposited the Software in
source code form and Documentation sufficient to facilitate maintenance,
modification or correction of the Software with the custodial agent named in
Appendix A. Vendor reserves the night to change said custodial agent at any
time with written notification to Customer within sixty (60) days of said
change. If Vendor, its successors or assigns shall cease to conduct business
for any period in excess of thirty (30) days, Customer shall have the right
to obtain, for its own and sole use only, a single copy of the then current
version of the source code form of the Software supplied under this
agreement, and a single copy of the Documentation associated therewith, upon
payment to the person in control of the said source code form of the Software
of the reasonable cost of making each copy. The source code form of the
Software supplied to Customer under this paragraph shall be subject to each
and every restriction on use set forth in this agreement. Customer
acknowledges that the source code form of the Software and the associated
Documentation are extraordinarily valuable proprietary property of Vendor and
will be guarded against unauthorized use or disclosure with great care.
V. MAINTENANCE, ENHANCEMENTS AND WARRANTIES
5.1 SOFTWARE WARRANTY. Vendor warrants that during the first twelve
(12) months following delivery of the Software (the "Warranty Period"), the
Software will perform in accordance with the then current Documentation
provided Customer, and further warrants that it has the right to authorize
the use of the Software under this agreement, Vendors obligation and
liability under this paragraph shall however, be limited to the replacement
and correction of the Software so that it will so perform, or to obtaining
any authorization necessary to make effective the grant of license to
Customer of the use of the software.
5.2 PATENT INFRINGEMENTS. Vendor shall hold harmless and defend
Customer from any claim or any suit based on any claim that the use of the
Software by Customer under this agreement infringes on any patent, copyright,
trademark, or other proprietary right of any third party, provided that
Customer gives Vendor prompt and written notice of any such claim or suit and
permits Vendor to control the defense thereof.
5.3 WARRANTY DISCLAIMER. THE FOREGOING WARRANTIES ARE IN LIEU OF
ALL OTHER WARRANTIES AND NO OTHER WARRANTY IS EXPRESSED OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE.
5.4 RENEWAL OF WARRANTIES. Unless sooner terminated pursuant to the
provisions of paragraph 5.6, the warranties granted by paragraphs 5.1 and 5.2
(subject, however, to all limitations and disclaimers contained within this
agreement) and the right to any enhancements or corrections developed by
Vendor under paragraph 5.5, shall be subject to extension for successive
one-year warranty periods commencing on the first anniversary date of the
delivery of the Software for four (4) successive years. Such extension shall
be deemed to automatically occur unless notice is given by either Customer or
Vendor of an election not to so extend, such notice to be given on or prior
to the sixtieth (60th) day preceding the anniversary date of delivery. Any
such extension shall in no event be effective unless Customer shall have paid
to Vendor on or prior to the anniversary date of delivery an annual
maintenance fee set forth in Appendix A. Extension of Vendors warranties
beyond the fifth (5th) anniversary shall be governed by Vendors maintenance
extension agreement.
5.5 ENHANCEMENTS AND CHANGES. Vendor shall provide Customer with
all enhancements and changes to the Software designed or developed by Vendor
and released to its other customers during the Warranty Period. Any change or
enhancement to the Software, whether developed or designed by Vendor or by
Customer shall be and remain the property of Vendor, provided, however, that
Customer shall be entitled to a perpetual license without additional license
fee of any enhancements or corrections developed by Customer. Vendor reserves
the right to make changes in operating procedures, program language, file
structures, access techniques, general purpose programs, data storage
requirements, input and output formats, report formats, types of hardware
supported, throughput, and other related programming and documentation
improvements required to maintain the Software current As part of these
services, Vendor will provide Customer the changes with written instructions
concerning implementation It is understood and agreed that Vendor provision
of improvements and enhancements under this paragraph does not include
providing to Customer a new set of software which may result from rewriting
the Software. Vendor alone shall determine whether the work product of Vendor
constitutes new software as a result of a complete rewrite (which is not
provided to Customer hereunder) or an improvement or enhancement of the
Software (which will be provided to Customer).
5.6 TERMINATION OF WARRANTIES. The warranties expressed in
paragraphs 5.1 and 5 2 and Customer's rights under paragraph 5.5 shall
immediately terminate if the Software is revised, changed, enhanced, modified
or maintained by any one other than Vendor without the prior specific
direction or written approval of Vendor
5.7 LIMITATION OF LIABILITY. Customer expressly agrees that Vendors
responsibilities in the event of its breach of the warranties contained in
paragraphs 51 and 5.2 are as set forth in said paragraphs. Vendors liability
for damages, including but not limited to liability for patent or copyright
infringement, regardless of the form of action, shall not exceed the license
fee set forth in Appendix A to this agreement and shall arise only if the
remedies provided in paragraphs 5.1 and 5,2 are not fulfilled by Vendor
Customer further agrees that Vendor will not be liable for any lost profits,
or for any claim or demand against Customer by any other party, except a
claim for patent or copyright infringement as provided herein. IN NO EVENT
WILL VENDOR BE LIABLE FOR CONSEQUENTIAL DAMAGES EVEN IF VENDOR HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. No action, regardless of form,
arising out of this agreement, may be brought by either party more than one
(1) year after the cause of action has accrued, except that an action for
non-payment may be brought within one (1) year after the date of last
payment. No action by Vendor for wrongful disclosure or use of the Software
or Documentation shall be deemed to have accrued until Vendor receives actual
notice of such wrongful disclosure or use.
THE CUSTOMER'S REMEDIES SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE.
VI. DEFAULT
6.1 TERMINATION. Vendor may terminate this agreement and the
license granted hereunder in the event of a default by Customer unless
Customer shall have cured the event of default, as hereinafter defined,
within twenty (20) days after notice of such event of default given by Vendor
to Customer. This agreement and the license granted hereunder shall
automatically terminate if Vendors warranties are not renewed as contemplated
in paragraph 5.4 hereof. Upon any termination of this agreement, Customer
shall deliver to Vendor the Software, the Documentation and all copies
thereof and shall also warrant in writing that all copies have been returned
to Vendor or destroyed.
6.2 EVENTS OF DEFAULT. An event of default is defined as
any of the following:
(A) Customer's failure to pay any amounts required to be paid to Vendor under
this agreement on a timely basis;
(B) Any attempt (i) to assign, sell, mortgage, lease, sublease, license,
sublicense or otherwise convey, (ii) to grant any interest in, right of
use of, or access to, or (iii) to otherwise disclose the Software
or
the Documentation, except, in any such case, as herein expressly
permitted
or as consented to in writing by the Vendor;
(C) Causing or permitting any encumbrance, of any nature whatsoever to attach
to Customers interest in the Software in favor of any
person
or entity other than Vendor;
(D) The entry of any order for relief under any provision of the federal
bankruptcy code in any bankruptcy proceedings initiated by or against
Customer; or
(E) Customer's breach of any of the terms or conditions of this agreement
6.3 DAMAGES. Upon the occurrence of an event of default without
cure within the period of time above-provided, all license or other fees
payable to Vendor under this agreement shall without notice or demand by
Vendor become immediately due and payable as liquidated carriages This
provision for liquidated damages shall not be regarded as a waiver by vendor
of any other rights to which it may be entitled in the event of Customer's
default but rather, such remedy shall be an ,addition to any other remedy
lawfully available to Vendor.
VII. GENERAL
7.1 TITLES. Titles and paragraph headings are for reference
purposes only and are not to be considered a part of this agreement.
7.2 FORCE MAJEURE. No party shall be liable for delay in
performance hereunder due to causes beyond its control, including but not
limited to acts of God, fires, strikes, delinquencies of suppliers, acts of
war or intervention by any governmental authority, and each party shall take
steps to minimize any such delay.
7.3 WAIVER. No waiver of any breach of any provision of this
agreement shall constitute a waiver of any prior concurrent or subsequent
breach of the same or any other provisions hereof and no waiver shall be
effective unless made in writing and signed by an authorized representative
of the party to be charged therewith.
7.4 SEVERABILITY. In the event that any provision of this agreement
shall be illegal or otherwise unenforceable, such provision shall be severed
from this agreement and the entire agreement shall not fail on account
thereof, the balance of the agreement continuing in full force and effect.
7.5 NOTICES. Any notice which either party hereto is required or
permitted to give hereunder shall be addressed to the party to be charged
therewith at the address set forth below and shall be given by certified or
registered mail. Any such notice shall be deemed given on the date of deposit
in the mail.
7.6 ENTIRE AGREEMENT. THE PARTIES HERETO ACKNOWLEDGE THAT EACH HAS
READ THIS AGREEMENT, UHDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS. THE
PARTIES FURTHER AGREE THAT THIS AGREEMENT AND ANY MODIFICATIONS MADE PURSUANT
TO IT CONSTITUTE THE COMPLETE AND EXCLUSIVE WRITTEN EXPRESSION OF THE TERMS
OF THE AGREEMENT BETWEEN THE PARTIES, AND SUPERSEDE ALL PRIOR OR
CONTEMPORANEOUS PROPOSALS, ORAL OR WRITTEN, UNDERSTANDINGS, REPRESENTATIONS,
CONDITIONS, WARRANTIES, COVENANTS, AND ALL OTHER COMMUNICATIONS BETWEEN THE
PARTIES RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT, THE PARTIES FURTHER
AGREE THAT THIS AGREEMENT MAY NOT IN ANY WAY BE EXPLAINED OR SUPPLEMENTED BY
A PRIOR OR EXISTING COURSE OF DEALINGS BETWEEN THE PARTIES, BY ANY USAGE OF
TRADE OR CUSTOM, OR BY ANY PRIOR PERFORMANCE BETWEEN THE PARTIES PURSUANT TO
THIS AGREEMENT OR OTHERWISE. IN THE EVENT CUSTOMER ISSUES A PURCHASE ORDER OR
OTHER INSTRUMENT COVERING THE SOFTWARE HEREIN SPECIFIED, IT IS UNDERSTOOD AND
AGREED THAT SUCH PURCHASE ORDER OR OTHER INSTRUMENT IS FOR CUSTOMER'S
INTERNAL USE AND PURPOSES ONLY AND SHALL IN NO WAY AFFECT ANY OF THE TERMS
AND CONDITIONS OF THIS AGREEMENT.
7.7 GOVERNING LAW. This agreement is accepted in the State of
Nebraska, and shall be enforced in accordance with and governed by the laws
of the State of Nebraska.
7.8 CHOICE OF FORUM. Any action arising out of or related to this
agreement or the transaction herein described, whether at law or in equity,
may be instituted in and litigated in the state or federal courts of the
State of Nebraska. In accordance herewith, the parties hereto submit to the
jurisdiction of the courts of said state. Any party being not a resident of
Nebraska at the time of suit hereby appoints the Secretary of State of
Nebraska as its agent for receipt of service of process
7.9 ATTORNEY'S FEES. In the event that any action or proceeding is
brought in connection with this agreement the prevailing party therein shall
be entitled to recover its costs and reasonable attorneys fees.
7.10 EFFECTIVE DATE. This agreement shall be effective on
the date accepted and executed by an authorized representative of
Vendor,
CUSTOMER: VENDOR:
POINTE FINANCIAL CORPORATION INFORMATION TECHNOLOGY, INC.
Signature: /s/ /s/ Signature: /s/ /s/
Name: R. CARL PALMER, JR. /PAMELA A. OLSON Name: Patrick J. Karin
Title: PRESIDENT-CEO / VICE PRESIDENT Title: Executive Vice President
Address: 21845 Powerline Road Address: 1345 Old Cheney Road
Boca Raton, FL 33433 Lincoln, NE 68512
Date: FEBRUARY 24,1997 Date Accepted: February 28, 1997
APPENDIX A
DUE UPON EXECUTION: 30% CUSTODIAL AGENT:
COMPUTER SYSTEM (CPU): NX4601-11 (A116) West Gate Bank,
*under 15,000 accounts 1204 West 0 Street
CUSTOMER'S ENTITLEMENT TO TRAINING: Lincoln, NE 68528
Customer is entitled to 0 days training
for 0 person(s) at $ 0 LOCATION WHERE THE SOFTWARE PRODUCT(S)
WILL BE USED:
ANNUAL MAINTENANCE FEE: Pointe Financial Corporation
Twenty percent (20%) of license 21845 Powerline Road
fee exclusive of any discounts. Boca Raton, FL 33433
SOFTWARE PRODUCT(S) AND LICENSE FEE(S):
<TABLE>
<CAPTION>
<S> <C> <C>
107-000 On-Line Teller Terminal Module $ 3,246
107-116 Signature Management Module 2,866
107-120 TTM Interface to: PLUS Commercial Bank 828
220-000 ATM File Transfer Module 2,037
220-140 ATM File Transfer Network Interface - Mellon Bank, Pittsburg PA 2,716
221-000 Data Communication File Transfer Module 2,716
380-000 Paperless Item Module 4,074
391-001 Federal Call Reporting System (Single Institution) 1,591
TOTAL: $20,074
</TABLE>
*Accounts being defined as the total of all accounts (open or closed) for
demand deposit, demand deposit loan, savings, time savings, IRA, certificate
of deposit, and loan accounts, whether processed or not by Customer, for the
institutions being serviced by VendorOs software listed in Appendix A.
MKT301/0394
(LOGO)
INFORMATION TECHNOLOGY INC.
SOFTWARE LICENSE AGREEMENT
Agreement made between Information Technology, Inc (the "Vendor"), and the
"Customer" identified below.
1. LICENSED SOFTWARE
1.1 LICENSE. Vendor grants to Customer and Customer accepts from
Vendor a nonexclusive and nontransferable license to use the software
identified in Appendix A (the "Software") under the terms set forth in this
agreement. The license herein granted shall commence upon the date of
delivery of the software and shall remain in effect for so long as Vendor's
warranties set forth in Article V remain in effect.
1.2 PROPRIETARY NATURE OF SOFTWARE AND TITLE. The Software and any
operations manuals, instructions, and other documents or written materials
provided to Customer as instruction in the use of the Software (the
"Documentation") are acknowledged by Customer to be and contain Vendor's
proprietary information and trade secrets, whether or not any portion thereof
is or may be validly copyrighted or patented, acknowledged to be protected by
civil and criminal law, and acknowledged to be of great value to Vendor.
Except as specifically licensed under this agreement, title and all ownership
rights to the Software and the Documentation remain with Vendor. Customer
shall retain or affix such evidences of ownership and proprietary notices as
Vendor may reasonably request. This paragraph shall survive the term or
termination of this agreement.
1.3 USE OF SOFTWARE. The Software may be used only for, by and on
behalf of Customer and only in connection with Customer's business
operations. This license is granted only for use at a single location
identified in Appendix A and upon a single computer system (CPU) identified
in Appendix A and may not be used upon any other computer or at any other
location except as provided under Paragraph 1.4.
1.4 BACKUP AND EMERGENCY USE. In the event Customer is unable to
use the Software at the location identified in Appendix A due to an
emergency, or to test emergency procedures, Vendor grants to Customer the
right to use the Software at a location other than the location defined in
Appendix A. Any such use shall be subject to all other restrictions of this
agreement and shall continue only so long as the condition giving rise to
such use continues. Prior to commencing such use, if possible, and in any
event within forty-eight (48) hours of such use, Customer shall give Vendor
written notice of the circumstance, location and the expected length of such
use. Failure to give notice shall nullify Customers right of emergency use,
as herein granted.
1.5 ASSIGNMENT. Customer rights under this agreement and in and to
the Software may not be assigned, licensed, sublicensed, pledged, or
otherwise transferred voluntarily, by operation of law or otherwise without
Vendors prior written consent, and any such prohibited assignment shall be
null and void.
III. CONSIDERATION
2.1 LICENSE FEE. In consideration of the license of the Software
granted under this agreement, Customer shall pay to Vendor the license fee
specified in Appendix A. Such license fee does not include, except as
expressly provided in this agreement or Appendix A hereto, installation or
maintenance of the Software, data base conversion, media, transportation
charges or taxes, all of which costs and taxes shall be the obligation of
Customer.
2.2 MANNER OF PAYMENT. The license fee listed in Appendix
A shall be payable in the following manner:
(A) A percentage of the license fee, as specified in Appendix A, upon
execution of this license agreement by Customer.
(B) The balance, including any applicable taxes, upon delivery of the
Software by Vendor to Customer.
Invoices respecting the license fee shall be rendered in accordance with the
above payment schedule and are payable to Vendor at Vendors address set forth
below within ten (10) days of receipt.
2.3 TAXES. In addition to the license fee payable hereunder,
Customer shall pay all taxes (including, without limitation, sales, use,
privilege, ad valorem or excise taxes) and customs duties paid or now or
hereafter payable, however designated, levied or based on amounts payable to
Vendor hereunder, on Customers use or possession of the Software under this
agreement or upon the presence of the Software at the location identified in
Appendix A, but exclusive of federal, state and local taxes based on Vendor's
net income. Customer shall not deduct from payments to Vendor any amounts
paid or payable to third parties for customs duties or taxes, however
designated,
2.4 CURRENCY. The purchase price and any other charges arising
under this agreement shall be invoiced and be payable in U.S Dollars
2.5 LATE PAYMENT. Customer shall pay a late payment charge of one
and one-calf percent (1 1/2%) per month, or the maximum late payment charge
permitted by applicable law, whichever is less, on any amount payable by
Customer under this Agreement and not paid when due Said late payment charge
shall be applied for each calendar month (or fraction thereto that such
payment is not made following its due date
2.6 SECURITY. Vendor reserves and Customer grants to Vendor a
security interest in the rights of Customer for use of the Software and in
the Documentation as security for the performance by Customer of its
obligations hereunder including, but not limited to, payment of the license
fee set forth in Appendix A. A copy of this agreement may be filed in
appropriate filing offices at any time after signature by Customer as a
financing statement or Vendor may require and Customer shall execute a
separate financing statement for purposes of perfecting Vendor's security
interest granted pursuant to the provisions of this paragraph.
III. DELIVERY, TRAINING AND OPERATION
3.1 DELIVERY. Vendor shall deliver the Software and Customer shall
accept delivery of the Software at Customer's address set forth below, Unless
delayed, as hereinafter provided for, delivery shall be completed within one
(1) year of the date accepted by Vendor.
3.2 DELIVERY DELAYS. In the event Customer requests delay of
delivery, Vendor shall not be obligated to effect, delivery of the Software
except upon thirty (30) days written notice by Customer to Vendor. If delay
in delivery is due to any cause beyond their control of Vendor, the date upon
which delivery is to be completed shall be extended by the number of days of
such delay.
3.3 TRAINING. Classes in the operation of the Software are
available at the offices of Vendor on a regularly scheduled basis. Customers
entitlement, if any, to such training is as set forth in Appendix A for such
additional charges, if any, as may be set forth therein. Reasonable
additional training will be provided to Customer at the offices of Vendor
upon Customers request, at Vendor's normal rates with respect thereto. All
travel, meal and lodging expenses of Customer in connection with such
training shall be borne by Customer, On-site training or assistance will be
available solely at Vendors discretion and will be charged to Customer at
Vendor's normal rates together with reasonable expenses for travel, meals,
lodging and local transportation.
3.4 ASSISTANCE BY CUSTOMER. Customer shall provide reasonable
assistance and cooperation to Vendor in preparation of the Software and the
delivery or installation thereof. Such assistance and cooperation shall
include, as appropriate, reasonable access to Customer's facility and to
Customer's records, as necessary.
3.5 DOCUMENTATION. Operations manuals in respect to the Software
will be delivered to Customer prior to or contemporaneously with the delivery
of the Software.
3.6 RISK OF LOSS. If the Software or the Documentation is lost or
damaged, in whole or in part, during shipment, Vendor will replace said
Software or Documentation at no additional charge to Customer. Upon delivery
in good condition of the Software and the Documentation, Customer shall be
responsible therefor and bear the risk of loss for said Software and
Documentation.
3.7 CONVERSION ASSISTANCE. Vendor may, at its sole discretion,
assist Customer in the conversion of Customers files from a computer
processor or in-house computer system at Vendors normal charges for such
assistance. Expenses, including but not limited to computer time, travel,
meals, lodging and local transportation incurred connection therewith, shall
be borne by Customer. In no event shall Vendor be liable to Customer for loss
of profits, consequential, incidental, indirect or special damages arising
from Vendor's efforts to assist in the conversion of Customer's files. Vendor
agrees to treat Customer's confidential business with the same security as it
would its own
3.8 OPERATION. Customer acknowledges and agrees that it is
exclusively responsible for the operation, supervision, management and
control of the Software, including, but not limited to, providing adequate
training for its personnel, instituting appropriate security procedures, and
implementing reasonable procedures to examine and verify all output before
use. Vendor shall have no responsibility or liability for Customer's
selection or use of the Software or any associated equipment.
3.9 CUSTOMER OBLIGATIONS. In order to maintain the continuing
integrity and proper operation of the Software, Customer agrees to implement,
in the manner instructed by Vendor, each error correction and each
enhancement and improvement provided to Customer by Vendor. Customer's
failure to do so shall relieve Vendor of any responsibility or liability
whatsoever for any failure or malfunction of the software as modified by a
subsequent correction or improvement, but in no such event shall Customer be
relieved of the responsibility for payment of fees and charges otherwise
properly invoiced during the term hereof. If requested by Vendor, Customer
agrees to provide written documentation and details to Vendor to substantiate
problems and to assist Vendor in the identification and detection of
problems, errors and malfunctions, and Customer agrees that Vendor shall have
no obligation or liability for said problems until it has received such
documentation and details from Customer
IV. VENDOR'S PROPRIETARY RIGHTS
4.1 NON-DISCLOSURE. Customer shall take all reasonable steps
necessary to ensure that neither the Software nor the Documentation, nor any
portion thereof, on magnetic tape or disk or in any other form, is made
available or disclosed by Customer or any of its agents or employees to any
other person, firm or corporation. Customer may disclose relevant aspects of
the Software and Documentation to its employees and agents to the extent such
disclosure is reasonably necessary to Customer's use of the Software,
provided, however, Customer agrees that it will cause all persons permitted
such access to the Software and the Documentation to observe and perform the
foregoing non- disclosure covenant, and that it will advise Vendor of the
procedures employed for this purpose. Customer shall hold Vendor harmless
against any loss, cost, expense, claim or liability, including reasonable
attorney's fees, resulting from Customer's breach of this non-disclosure
obligation. 7 this paragraph shall survive the term or termination of this
agreement.
4.2 COPIES. Customer agrees that while the Software and the
Documentation are in its custody and possession, it will not (a) copy or
duplicate or permit anyone else to copy or duplicate any of the Software,
Documentation or information furnished by Vendor, or (b) create or attempt to
create, or permit others to create or attempt to create, by reverse
engineering or otherwise, the source programs or any part thereof from the
object program for the Software, the Documentation or other information made
available under this agreement or otherwise, (whether oral, written, tangible
or intangible). notwithstanding the foregoing, Customer may make and retain
two (2) copies of the Software, including all enhancements and changes
hereto, only for use in emergencies or to test emergency procedures and may
copy for Its own use and at Its own expense the Documentation, but shall
advise Vendor of the specific item copied, the number of copies made and
their distribution. The original and any copies in whole or in part of the
Software or Documentation which are made pursuant to this provision shall be
the exclusive property of Vendor and shall be fully subject to the provisions
of this agreement. Customer agrees to retain or place Vendor's proprietary
notice on any copies or partial copies made pursuant to this provision.
4.3 UNAUTHORIZED ACTS. Customer agrees to notify Vendor immediately
of the unauthorized possession, use, or knowledge of the Software,
Documentation or any information made available to Customer pursuant to this
agreement, by any person or organization not authorized by this agreement to
have such possession, use or knowledge. Customer will, thereafter, fully
cooperate with Vendor in the protection and redress of Vendor's proprietary
rights. Customer's compliance with this paragraph shall not, however, be
construed in any way as a waiver of Vendor's rights against Customer for
Customer's negligent or intentional harm proprietary rights, or for breach of
Vendor's contractual rights.
4.4 INSPECTION. To assist Vendor in the protection of its pro
proprietary rights, Customer shall permit representatives of Vendor to in
inspect the Software and Documentation and their use, including inspection of
any location in which they are being used or kept at all reasonable times
4.5 INJUNCTIVE RELIEF. If Customer attempts to use, copy license.
sublicense, sell or otherwise convey or to disclose the Software or
Documentation, in any manner contrary to the terms of this agreement or in
derogation of Vendor's proprietary rights, whether such rights are explicitly
herein stated, determined by law or otherwise, Vendor shall have. in addition
to any other remedies available to it, the right to injunctive relief
enjoining such actions, Customer hereby acknowledging that other remedies are
inadequate.
4.6 ACCESS TO SOURCE CODE. Vendor has deposited the Software in
source code form and Documentation sufficient to facilitate maintenance,
modification or correction of the Software with the custodial agent named in
Appendix A. Vendor reserves the right to change said custodial agent at any
time with written notification to Customer within sixty (60) days of said
change. If Vendor, its successors or assigns shall cease to conduct business
for any period in excess of thirty (110) lays, Customer shall have the right
to obtain, for its own and sole use only, a single copy of the then current
version of the source code form of the Software supplied under this
agreement, and a single copy of the Documentation associated therewith, upon
payment to the person in control of the said source code form of the Software
of the reasonable cost of making each copy. The source code form of the
Software supplied to Customer under this paragraph shall be subject to each
and every restriction on use set forth in this agreement. Customer
acknowledges that the source code form of the Software and the associated
Documentation are extraordinarily valuable proprietary property of Vendor and
will be guarded against unauthorized use or disclosure with great rare.
V. MAINTENANCE, ENHANCEMENTS AND WARRANTIES
5.1 SOFTWARE WARRANTY. Vendor warrants that during the first twelve
(12) months following delivery of the Software (the "Warranty Period"), the
Software will perform in accordance with the then current Documentation
provided Customer, and further warrants that it has the right to authorize
the use of the Software under this agreement. Vendors obligation and
liability under this paragraph shall, however, be limited to the replacement
and correction of the Software so that it will so perform, or to obtaining
any authorization necessary to make effective the grant of license to
Customer of the use of the Software.
5.2 PATENT INFRINGEMENTS. Vendor shall hold harmless and defend
Customer from any claim or any suit based on any claim that the use of the
Software by Customer under this agreement infringes on any patent, copyright,
trademark, or other proprietary right of any third party, provided that
Customer gives Vendor prompt and written notice of any such claim or suit and
permits Vendor to control the defense thereof.
5.3 WARRANTY DISCLAIMER. THE FOREGOING WARRANTIES ARE IN LIEU OF
ALL OTHER WARRANTIES AND NO OTHER WARRANTY IS EXPRESSED OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE.
5.4 RENEWAL OF WARRANTIES. Unless sooner terminated pursuant to the
provisions of paragraph 5.6, the warranties granted by paragraphs 5.1 and 5.2
(subject, however, to all limitations and disclaimers contained within this
agreement) and the right to any enhancements or corrections developed by
Vendor under paragraph 5.5, shall be subject to extension for successive
one-year warranty periods commencing on the first anniversary date of the
delivery of the Software for four (4) successive years. Such extension shall
be deemed to automatically occur unless notice is given by either Customer or
Vendor of an election not to so extend, such notice to be given on or prior
to the sixtieth (60th) day preceding the anniversary date of delivery. Any
such extension shall in no event be effective unless Customer shall have paid
to Vendor on or prior to the anniversary date of delivery an annual
maintenance fee set forth in Appendix A. Extension of Vendor's warranties
beyond the fifth (5th) anniversary shall be governed by Vendors maintenance
extension agreement.
5.5 ENHANCEMENTS AND CHANGES. Vendor shall provide Customer with
all enhancements and changes to the Software designed or developed by Vendor
and released to As other customers during the Warranty Period. Any change or
enhancement to the Software, whether developed or designed by Vendor or by
Customer shall be and remain the property of Vendor, provided, however, that
Customer shall be entitled to a perpetual license without additional license
fee of any enhancements or corrections developed by Customer. Vendor reserves
the right to make changes in operating procedures, program language, file
structures, access techniques, general purpose programs, data storage
requirements, input and output formats, report formats, types of hardware
supported, throughput, and other related programming and documentation
improvements required to maintain the Software current. As part of these
services, Vendor will provide Customer the changes with written instructions
concerning implementation. It is understood and agreed that Vendor provision
of improvements and enhancements under this paragraph does not include
providing to Customer a new set of software which may result from rewriting
the Software, Vendor alone shall determine whether the work product of Vendor
constitutes new software as a result of a complete rewrite (which is not
provided to Customer hereunder) or an improvement or enhancement of the
Software (which will be provided to Customer).
5.6 TERMINATION OF WARRANTIES. The warranties expressed in
paragraphs 5.1 and 5.2 and Customer's rights under paragraph 5.5 shall
immediately terminate if the Software is revised, changed, enhanced, modified
or maintained by any one other than Vendor without the prior specific
direction or written approval of Vendor.
5.7 LIMITATION OF LIABILITY. Customer expressly agrees that
Vendor's responsibilities in the event of its breach of the warranties
contained in paragraphs 5.1 and 5.2 are as set forth in said paragraphs
Vendor's liability for damages, including but not limited to liability for
patent or copyright infringement, regardless of the form of action, shall not
exceed the license fee set forth in Appendix A to this agreement and shall
anise only if the remedies provided in paragraphs 5.1 and 5.2 are not
fulfilled by Vendor Customer further agrees that Vendor will not be liable
for any lost profits, or for any claim or demand against Customer by any
other party, except a claim for patent or copyright infringement as provided
herein. IN NO EVENT WILL VENDOR BE LIABLE FOR CONSEQUENTIAL DAMAGES EVEN IF
VENDOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. No action,
regardless of form, arising out of this agreement, may be brought by either
party more than one (1) year after the cause of action has accrued, except
that an action for non-payment may be brought within one (1 ) year after the
date of last payment. No action by Vendor for wrongful disclosure or use of
the Software or Documentation shall be deemed to have accrued until Vendor
receives actual notice of such wrongful disclosure or use.
THE CUSTOMER'S REMEDIES SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE.
VI. DEFAULT
6.1 TERMINATION. Vendor may terminate this agreement and the
license granted hereunder in the event of a default by Customer unless
Customer shall have cured the event of default, as hereinafter defined,
within twenty (20) days after notice of such event of default given by Vendor
to Customer. This agreement and the license granted hereunder shall
automatically terminate if Vendors warranties are not renewed as contemplated
in paragraph 5.4 hereof. Upon any termination of this agreement, Customer
shall deliver to Vendor the Software, the Documentation and all copies
thereof and shall also warrant in writing that all copies have been returned
to Vendor or destroyed.
6.2 EVENTS OF DEFAULT. An event of default is defined as
any of the following:
(A) Customer's failure to pay any amounts required to be paid to Vendor under
this agreement on a timely basis;
(B) Any attempt (i) to assign, sell, mortgage, lease, sublease, license,
sublicense or otherwise convey, (ii) to grant any interest in, right of
use of, or access to, or (iii) to otherwise disclose the Software or the
Documentation, except, in any such case, as herein expressly permitted or
as consented to in writing by the Vendor;
(C) Causing or permitting any encumbrance, of any nature whatsoever to attach
to Customers interest in the Software in favor of any
person
or entity other than Vendor;
(D) The entry of any order for relief under any provision of the federal
bankruptcy code in any bankruptcy proceedings initiated by or
against
Customer; or
(E) Customer's breach of any of the terms or conditions of this agreement
6.3 DAMAGES.- Upon the occurrence of an event of default without
cure within the period of time above-provided, all license or other fees
payable to Vendor under this agreement shall without notice or demand by
Vendor become immediately due and payable as liquidated damages. This
provision for Liquidated damages shall not be regarded as a waiver by Vendor
of any other rights to which it may be entitled in ,he event of Customer's
default. but rather, such remedy shall be an addition to any other remedy
lawfully available to Vendor,
VII. GENERAL
7.1 TITLES. Titles and paragraph headings are for reference
purposes only, and are not to be considered a part of this agreement.
7.2 FORCE MAJEURE. No party shall be liable for delay in
performance hereunder due to causes beyond its control, including but not
limited to acts of God fires, strikes, delinquencies of suppliers, acts of
war or intervention by any governmental authority, and each party shall take
steps to minimize any such delay
7.3 WAIVER. No waiver of any breach of any provision of this
agreement shall constitute a waiver of any prior, concurrent or subsequent
breach of the same or any other provisions hereof and no waiver shall be
effective unless made in writing and signed by an authorized representative
of the party to be charged therewith.
7.4 SEVERABILITY. In the event that any provision of this agreement
shall be illegal or otherwise unenforceable, such provision shall be severed
from this agreement and the entire agreement shall not fail on account
thereof, the balance of the agreement continuing in full force and effect.
7.5 NOTICES. Any notice which either party hereto is required or
permitted to give hereunder shall be addressed to the party to be charged
therewith at the address set forth below and shall be given by certified or
registered mail. Any such notice shall be deemed given on the date of deposit
in the mail.
7.6 ENTIRE AGREEMENT. THE PARTIES HERETO ACKNOWLEDGE THAT EACH HAS
READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BEBOUND BY ITS TERMS. THE
PARTIES FURTHER AGREE THAT THIS AGREEMENT AND ANY MODIFICATIONS MADE PURSUANT
TO IT CONSTITUTE THE COMPLETE AND EXCLUSIVE WRITTEN EXPRESSION OF THE TERMS
OF THE AGREEMENT BETWEEN THE PARTIES, AND SUPERSEDE ALL PRIOR OR
CONTEMPORANEOUS PROPOSALS, ORAL OR WRITTEN, UNDERSTANDINGS, REPRESENTATIONS,
CONDITIONS, WARRANTIES, COVENANTS, AND ALL OTHER CC AMUNICATIONS BETWEEN THE
PARTIES RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT. THE PARTIES FURTHER
AGREE THAT THIS AGREEMENT MAY NOT IN ANY WAY BE EXPLAINED OR SUPPLEMENTED BY
A PRIOR OR EXISTING COURSE OF DEALINGS BETWEEN THE PARTIES, BY ANY USAGE OF
TRADE OR CUSTOM, OR BY ANY PRIOR PERFORMANCE BETWEEN THE PARTIES PURSUANT TO
THIS AGREEMENT (DR OTHERWISE. IN THE EVENT CUSTOMER ISSUES A PURCHASE ORDER
OR OTHER INSTRUMENT COVERING THE SOFTWARE HEREIN SPECIFIED, IT IS UNDERSTOOD
AND AGREED THAT SUCH PURCHASE ORDER OR OTHER INSTRUMENT IS FOR CUSTOMER'S
INTERNAL USE AND PURPOSES ONLY AND SHALL IN NO WAY AFFECT ANY OF THE TERMS
AND CONDITIONS OF THIS AGREEMENT.
7.7 GOVERNING LAW. This agreement is accepted in the State of
Nebraska, and shall be enforced in accordance with and governed by the laws
of the State of Nebraska.
7.8 CHOICE OF FORUM. Any action arising out of or related to this
agreement or the transaction herein described, whether at law or in equity,
may be instituted in and litigated in the state or federal courts of the
State of Nebraska. In accordance herewith, the parties hereto submit to the
jurisdiction of the courts of said state. Any party being not a resident of
Nebraska at the time of suit hereby appoints the Secretary of State of
Nebraska as its agent for receipt of service of process.
7.9 ATTORNEY'S FEES. In the event that any action or proceeding is
brought in connection with this agreement the prevailing party therein shall
be entitled to recover its costs and reasonable attorneys fees.
7.10 EFFECTIVE DATE. This agreement shall be effective on
the date accepted and executed by an authorized representative of
Vendor
CUSTOMER: VENDOR:
POINTE FINANCIAL CORPORATION INFORMATION TECHNOLOGY, INC.
Signature: /s/ /s/ Signature: /s/ /s/
Name: R. CARL PALMER, JR. /PAMELA A. OLSON Name: Patrick J. Kerrigan
Title: PRESIDENT-CEO / VICE PRESIDENT Title: Executive Vice President
Address: 21845 Powerline Road Address: 1345 Old Cheney Road
Boca Raton, FL 33433 Lincoln, NE 68512
Date: FEBRUARY 24,1997 Date Accepted: February 28, 1997
APPENDIX A
DUE UPON EXECUTION: 30% CUSTODIAL AGENT:
COMPUTER SYSTEM (CPU): NX4601-11 (A116) West Gate Bank,
*under 15,000 accounts 1204 West 0 Street
CUSTOMER'S ENTITLEMENT TO TRAINING: Lincoln, NE 68528
Customer is entitled to 7 days training
for 2 person(s) at $ 0 LOCATION WHERE THE SOFTWARE PRODUCT(S)
WILL BE USED:
ANNUAL MAINTENANCE FEE: Pointe Financial Corporation
Twenty percent (20%) of license 21845 Powerline Road
fee exclusive of any discounts. Boca Raton, FL 33433
SOFTWARE PRODUCT(S) AND LICENSE FEE(S):
<TABLE>
<CAPTION>
<S> <C> <C>
107-000 On-Line Teller Terminal Module
102-000 Demand Deposit Accounting System
103-000 Savings Accounting System
104-000 Certificate of Deposit Accounting System
105-000 Loan Accounting System
106-000 Item Entry System
151-000 General Ledger System
Package Price $41,375
102-103 Express Exception Item Processing Module 1,697
103-101 Retirement Account Reporting Module 2,037
105-101 Automated Credit Reporting Module 951
108-101 Bulk Filing Module 4,346
151-101 Holding Company Module 1,765
152-101 ALM II (Single Institution) 3,395
350-000 Check Reconciliation System 3,395
370-000 Electronic Banking Base 1,697
370-101 TeleBanc-InterVoice Interface to EBB 2,334
400-000 Fixed Assets System 2,716
702-000 Accounts Payable System 2,228
TOTAL: $67,936
</TABLE>
*Accounts being defined as the total of all accounts (open or closed) for
demand deposit, demand deposit loan, savings, time savings, IRA, certificate
of deposit, and loan accounts, whether processed or not by Customer, for the
institutions being serviced by VendorOs software listed in Appendix A.
MKT301/0394
(LOGO)
INFORMATION TECHNOLOGY INC.
PLUS/FORMS LIBRARY
SUBSCRIPTION AGREEMENT
This agreement made and entered into this 28th day of February, 1997 by and
between Information Technology, Inc. (the "Vendor") and "Customer" identified
below Vendor hereby agrees to provide for a period of twelve (12) months (the
"Subscription Period"), at the initial subscription fee set forth below,
integration services for the Bankers Systems, Inc. Deposit Electronic Forms
Library (hereinafter the "Forms Library") into Vendor's PLUS Platform/Teller
product (hereinafter "PLUS"). Integration services provided under this
agreement shall be subject to all the restrictions and obligations of the
Software License Agreement (sometimes collectively, referred to as the
"License Agreement") which currently or hereafter exists between Customer and
'vendor, including, without limitation the provisions thereof relating to
protection of the proprietary rights of Vendor and maintenance of
confidential information of Vendor but exclusive of the payment of license
fees specified under the License Agreement.
This integration service is for the Forms Library for the specific state
identified below. Vendor agrees to provide this integration service to
Customer for Customer's location and for Customer's mainframe computer system
(CPU) identified below.
Unless sooner terminated pursuant to the provisions of the License Agreement
the Subscription Period shall commence on the delivery of the Bankers Systems
Deposit Electronic Forms Library. The Subscription Period shall be deemed to
automatically renew for successive one-year Subscription Periods unless
notice is given by either Customer or Vendor not to so extend. Such notice
shall be given on or prior to the sixtieth (60th) day preceding the end of
the then current Subscription Period. Any such renewal shall in no event be
effective unless Customer shall have paid to Vendor on or prior to the
beginning of the renewal Subscription Period its then current Subscription
Fee.
SUBSCRIPTION FEE: $1,850
PRODUCT CODE: 107-210
CPU: NX4601-11 (A116)
under 15,000 accounts
CUSTOMER:
POINTE FINANCIAL CORPORATION
21845 Powerline Road
Boca Raton, FL 33433
/s/
Signature
PAMELA A. OLSON
Name
VTCE PRESIDENT
Title
FEBRUARY 24, 1997
Date
STATE: Florida
LOCATION: Pointe Financial Corporation
21845 Powerline Road
Boca Raton, FL 33433
VENDOR:
INFORMATION TECHNOLOGY, INC.
1345 Old Cheney Road
Lincoln, NE 69512
/s/
Signature
Patrick J Kerrigan
Name
Executive Vice President
Title
February 28, 1997
Date Accepted
PLFB2/96
(LOGO)
INFORMATION TECHNOLOGY INC.
EQUIPMENT SALE AGREEMENT
Agreement made between Information Technology, Inc. (the "Vendor"),
and the "Customer" identified below.
I. PURCHASE
1.1 Customer hereby purchases from Vendor and Vendor hereby sells
to Customer the equipment identified in Appendix A (the "Equipment"), upon
the terms set forth in this agreement.
II. DELIVERY
2.1 Delivery and installation of the Equipment will be made by the
manufacturer of the Equipment identified in Appendix A (the "Manufacturer"),
at Customer's address set forth below. Customer agrees to have a site
adequately and properly prepared, in accordance with Manufacturer's
instructions, to receive and accept delivery of the Equipment. In no event
shall Vendor be responsible to Customer for any delays in delivery or
installation or any damages to Customer resulting from such delays.
III. CONSIDERATION
3.1 PURCHASE PRICE. As and for the purchase price for the
Equipment, Customer agrees to pay Vendor and Vendor agrees to accept from
Customer, the purchase price specified in Appendix A.
3.2 TAXES AND OTHER CHARGES. In addition to the purchase price,
Customer shall pay all transportation charges and all taxes (including,
without limitation, sales, use, privilege, ad valorem or excise taxes) and
customs duties paid or payable by Vendor, however designated, levied or based
on amounts payable to Vendor under this agreement, but exclusive of federal,
state and local taxes based on Vendor's net income. If additional labor and
rigging are required for installation due to Customer's special site
requirements, Customer will pay those costs, including costs to meet union or
local law requirements. Customer shall not deduct from payments to Vendor any
amounts paid or payable to third parties for transportation charges, customs
duties or taxes, however designated.
3.3 MANNER OF PAYMENTS. The purchase price and other charges
arising under this agreement shall be payable by Customer to Vendor in the
following manner:
(A) A percentage of the purchase price, as specified in Appendix A, shall be
payable upon execution of this agreement by Customer; the receipt or
deposit of such payment, however, shall not constitute Vendor's
acceptance of this agreement.
(B) The balance of the purchase price, together with any transportation
charges and any taxes and duties theretofore incurred by Vendor, shall be
payable upon delivery of the Equipment to Customer.
(C) Any taxes, duties, or other charges incurred by Vendor following delivery
of the Equipment shall be payable within ten (10) days of receipt by
Customer of Vendor's invoice therefor.
3.4 CURRENCY. The purchase price and any other charges arising
under this agreement shall be invoiced and be payable in U.S. Dollars.
3.5 LATE PAYMENT. Customer shall pay a late payment charge of one
and one-half percent (11/2%) per month, or the maximum late payment charge
permitted by applicable law, whichever is less, on any amount payable by
Customer under this Agreement and not paid when due. Said late payment charge
shall be applied for each calendar month (or fraction thereof) that such
payment is not made following its due date.
IV. TITLE
4.1 Until such time as the purchase price and any other charges
payable to Vendor as of the date of delivery have been paid in full, the
Equipment and all instruction manuals therefor shall remain the property of
Vendor and, at the option of Vendor, shall be returned to Vendor at
Customer's expense in the event the purchase price is not paid as
here-in-above provided.
V. SECURITY
5.1 Vendor reserves and Customer grants to Vendor a security
interest in the Equipment as security for the performance by Customer of its
obligations hereunder including, but not limited to, payment of the purchase
price and other charges as specified in Section III above. A copy of this
agreement may be filed in appropriate filing offices at any time after
signature by Customer as a financing statement or Vendor may require and
Customer shall execute a separate financing statement for purposes of
perfecting Vendor's security interest granted pursuant to the provisions of
this paragraph.
VI. CUSTOMER OBLIGATIONS
6.1 RISK OF LOSS. From and after the date of delivery, the risk of
loss or damage to the Equipment shall be on the Customer.
6.2 OPERATION. Customer acknowledges and agrees that it is
exclusively responsible for the operation, supervision, management and
control of the Equipment, including, but not limited to, providing adequate
training for its personnel, instituting appropriate security procedures, and
implementing reasonable procedures to examine and verify all output before
use. Vendor shall have no responsibility or liability for Customer's
selection or use of the Equipment or any associated equipment.
VII. WARRANTIES
7.1 WARRANTY. Vendor warrants to Customer that it has the right to
transfer title of the Equipment to Customer. Vendor's sole liability under
this warranty shall be to obtain any title or authorization necessary to
transfer such title to Customer.
7.2 DISCLAIMER. THE FOREGOING WARRANTY IS IN LIEU OF ALL
OTHER WARRANTIES AND NO OTHER WARRANTY IS EXPRESSED OR IMPLIED,
INCLUDING,
BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
7.3 MANUFACTURER'S WARRANTY. Customer expressly understands and
agrees that warranties regarding patents, materials, workmanship or use of
the Equipment (the "Manufacturer's Warranty's, if any, are made exclusively
by the Manufacturer and not by Vendor, and if made, shall be encompassed
within a separate agreement. Customer's exclusive remedy under Manufacturer's
Warranty shall be as provided therein and shall lie exclusively against and
be obtainable only from the Manufacturer, and Customer expressly agrees that
it shall have no claim or cause of action against Vendor in the event the
Manufacturer is for any reason unwilling or unable to perform under the terms
of Manufacturer's Warranty.
7.4 LIMITATION OF LIABILITY. Customer expressly agrees that
Vendor's responsibilities in the event of its breach of the warranties
contained in paragraph 7.1 of this agreement are as set forth in said
paragraph. Vendor's liability for damages, regardless of the form of action
shall not exceed the purchase price set forth in Appendix A to this agreement
and shall arise only if the remedies set forth in paragraph 7.1 are not
fulfilled by Vendor. Customer further agrees that Vendor will not be liable
for any lost profits, or for any claim or demand against Customer by any
other party. IN NO EVENT WILL VENDOR BE LIABLE FOR CONSEQUENTIAL DAMAGES EVEN
IF VENDOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. No action,
regardless of form, arising out of the transactions under this agreement, may
be brought by either party more than one (1) year after the cause of action
has accrued, except that an action for non-payment may be brought within one
(1) year after the date of the last payment. THE CUSTOMER'S REMEDIES SET
FORTH IN THIS AGREEMENT ARE EXCLUSIVE.
VIII. DEFAULT
8.1 REMEDY. Upon the occurrence of an event of default, as
hereinafter defined, by Customer, if the Equipment has theretofore been
delivered, Vendor may recover, together with any incidental damages, any
unpaid portion of the purchase price of the Equipment as specified in
Appendix A hereto. If the Equipment has not been delivered, in which event
Vendor may withhold delivery of such Equipment, or if the Equipment is
returned to Vendor upon Vendor's election pursuant to Section IV, Vendor
shall resell the Equipment. Upon such resale, Vendor shall recover from
Customer the difference between the unpaid portion of the purchase price, as
specified in Appendix A, and the resale price, together with any incidental
damages, including expenses of resale, sustained by Vendor by reason of
Customer's breach. If the resale price exceeds the unpaid portion of the
purchase price and Vendor's incidental damages, Vendor shall remit the excess
to Customer.
8.2 EVENTS OF DEFAULT. As utilized in this agreement, an
event of default is defined as any of the following:
(A) Customer's failure to pay any amounts required to be paid to
Vendor under this agreement on a timely basis;
(B) Until the purchase price has been paid in full, any attempt by
Customer to assign, sell, mortgage, or otherwise convey the Equipment;
(C) Prior to the payment in full of the purchase price, Customer
causing or permitting any encumbrance, of any nature whatsoever, to attach to
Customer's interest in the Equipment in favor of any person or entity other
than Vendor;
(D) The entry of any order for relief under any provision of the
federal bankruptcy code in any bankruptcy proceedings initiated by or against
Customer; or
(E) Customer's breach of any of the terms or conditions of this
agreement.
IX. GENERAL
9.1 TITLES. Titles and paragraph headings are for reference
purposes only and are not to be considered a part of this agreement.
9.2 FORCE MAJEURE. No party shall be liable for delay in
performance hereunder due to causes beyond its control, including but not
limited to acts of God, fires, strikes, delinquencies of suppliers,
intervention of any governmental authority or acts of war, and each party
shall take steps to minimize any such delay.
9.3 WAIVER. No waiver of any breach of any provision of this
agreement shall constitute a waiver of any prior, concurrent or subsequent
breach of the same or any other provisions hereof and no waiver shall be
effective unless made in writing and signed by an authorized representative
of the party to be charged therewith.
9.4 SEVERABILITY. In the event that any provision of this agreement
shall be illegal or otherwise unenforceable, such provision shall be severed
from this agreement and the entire agreement shall not fail on account
thereof, the balance of the agreement continuing in full force and effect.
9.5 NOTICES. Any notice which either party hereto is required or
permitted to give hereunder shall be addressed to the party to be charged
therewith at the address set forth below and shall be given by certified or
registered mail. Any such notice shall be deemed given on the date of deposit
in the mail.
9.6 ENTIRE AGREEMENT. THE PARTIES HERETO ACKNOWLEDGE THAT EACH HAS
READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS. THE
PARTIES FURTHER AGREE THAT THIS AGREEMENT AND ANY MODIFICATIONS MADE PURSUANT
TO IT CONSTITUTE THE COMPLETE AND EXCLUSIVE WRITTEN EXPRESSION OF THE TERMS
OF THE AGREEMENT BETWEEN THE PARTIES, AND SUPERSEDE ALL PRIOR OR
CONTEMPORANEOUS PROPOSALS, ORAL OR WRITTI EN, UNDERSTANDINGS,
REPRESENTATIONS, CONDITIONS, WARRANTIES, COVENANTS, AND ALL OTHER
COMMUNICATIONS BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER OF THIS
AGREEMENT. THE PARTIES FURTHER AGREE THAT THIS AGREEMENT MAY NOT IN ANY WAY
BE EXPLAINED OR SUPPLEMENTED BY A PRIOR OR EXISTING COURSE OF DEALINGS
BETWEEN THE PARTIES, BY ANY USAGE OF TRADE OR CUSTOM, OR BY ANY PRIOR
PERFORMANCE BETWEEN THE Parties PURSUANT TO THIS AGREEMENT OR OTHERWISE. IN
THE EVENT CUSTOMER ISSUES A PURCHASE ORDER OR OTHER INSTRUMENT COVERING THE
EQUIPMENT HEREIN SPECIFIED, IT IS UNDERSTOOD AND AGREED THAT SUCH PURCHASE
ORDER OR OTHER INSTRUMENT IS FOR CUSTOMER'S INTERNAL USE AND PURPOSES ONLY
AND SHALL IN NO WAY AFFECT ANY OF THE TERMS AND CONDITIONS OF THIS AGREEMENT.
9.7 GOVERNING LAW. This agreement is accepted in the State of
Nebraska, and shall be enforced in accordance with and governed by the laws
of the State of Nebraska.
9.8 CHOICE OF FORUM. Any action arising out of or related to this
agreement or the transaction herein described, whether at law or in equity,
may be instituted in and litigated in the state or federal courts of the
State of Nebraska. In accordance herewith, the parties hereto submit to the
jurisdiction of the courts of said state. Any party being not a resident of
Nebraska at the time of suit hereby appoints the Secretary of State of
Nebraska as its agent for receipt of service of process.
9.9 ATTORNEY'S FEES. In the event that any action or proceeding is
brought in connection with this agreement the prevailing party therein shall
be entitled to recover its costs and reasonable attorney's fees.
9.10 EFFECTIVE DATE. This agreement shall be effective on the date
accepted and executed by an authorized representative of Vendor.
CUSTOMER:
POINTE FINANCIAL
Signature: /s/
Name: PAMELA A. OLSON
Title: VP
Address:
Date: 3-10-97
VENDOR:
INFORMATION TECHNOLOGY, INC.
Signature: /s/
Name: Michael K. Young
Title: Senior Vice President
Address: 1345 Old Cheney Road
Lincoln, NE 68512
Date Accepted: June 30, 1997
APPENDIX A
EQUIPMENT AND TERMS
1. MANUFACTURER. The Manufacturer of the Equipment subject
to this agreement is: Unisys
2. PURCHASE PRICE: The purchase price for the Equipment is $86,370 00.
0% thereof shall be payable upon execution of this agreement, the
balance upon delivery of the Equipment.
3. EQUIPMENT. The Equipment subject to this agreement consists of the
following:
<TABLE>
<CAPTION>
PURCHASE
EXTENDED
QTY. STYLE DESCRIPTION PRICE PRICE
<S> <C> <C> <C> <C>
1 DP575-SNT SYS:DP500 STD HGT NT CON $37,096 $37,096
1 DP500-TNT O/S:TRACK NT SOFTWARE
1 DP575-SHC PROC.STD NT CONSOLE
1 DP550-HNT DISK: DP500 NT YTRACK (IDE)
1 evg142-COL DISPLAY: 14" COLOR
1 DP552-SEM READER:E13B MICR 6,784 6,784
1 DP503-EME ENCODER:E13B MICR 1,915 1,915
1 DP505-RMJ ENDORSER:REAR MJE 6,100 6,100
1 DP506-RS0 ENDORSER:REA-R STAMP 1,310 1,310
1 DP510-MPR PRINTER:MASTER 1,570 1,570
1 DP512-SHP STACKER:STD HGT 12 RP PKT 6,368 6,368
1 DP512-BAS STACKER:FIRST/LAST PKT
1 DP512SSM STACKER:STD HGT PKT MOD
1 DP509-SHM M/FILM:STD MICROFILM 9,545 9,545
1 DP508-DKC ADPTR:DUAL KEYBD CONNCT 110 110
1 DP507-NKB KEYBD:NUMERIC 295 295
1 UDS9616-LE1 PRINTER: 16PPM LASER 2,995 2,995
1 F8337-03 CABLE:6.5' PARALLEL I/F 70 70
1 CMT50074-ZFD SYS:7 SLOT BASE CONFIG 674 674
1 CMT50074-ZA SYS:AQUANTA DM ZBOX
1 CMT50074-OK1 ACC:CMT 7 SLT OP KIT
1 PRC5133-P54 PROC:P54C 133MRZ PROC 242 242
2 MPM4-16M MEM: 16MB EDO MEM EXP 122 244
1 EMC25606-CA MEM:256K SYC CACHE MOD 68 68
2 ETH101001-PC1 LAN HW: 10/100MI3 TX-PCI 215 430
1 EVG142-COL DISPLAY: 14" COLOR 341 341
1 PC1300-SUN CTRL:ULTRA NARROW SCSI 280 280
1 CDR1200-SI DISK: 12-SP INT SCSI CDR 357 357
2 HDS2000-SN5 DISK: 12GB ULTA SCSI 5400 689 1,378
1 PWMI-PS2 MOUSE:2 BUTT0N MOUSE/PS2 30 30
1 PCK104-SKB KEYBD:SPACE SAVER 40 40
1 B25-LC PWR CORDLINE CORD 8 8
1 TD829300 100MB 3COM HB 1,395 1,395
1 CWP50051-ZFD SYS. CWP 5 SLOT BASE SYS 595 595
1 CWP50051-ZA SYS:CWP 5 SLOT BASE SYS
1 CWP50051-OK1 ACC:CWP 5 SLOT OP KIT
1 PRC5 133-P54 PROC:P54C 133MI-IZ PROC 242 242
2 MPM4-16M MEM: 16MB EDO MEM EXP 122 244
1 EMC25606-CA MEM:256K SYNC CACHE MOD 68 68
1 PCV102-PCI CTRL:GRPH ADATR 2MB DRAM 176 176
1 EVG143-COL DISPLAY: 14" COLOR 341 341
1 PCK104-SKB KEYBD:SPACE SAVER 40 40
1 PWMI-PS2 MOUSE:2 BUTTON MOUSE/PS2 30 30
1 B25-LC PWR CORD:LINE CORD 8 8
1 H1200-4 DISK:1.2GB 4500RPM IDE 257 257
1 CDR1200-AI DISK:12-SP INT ATAPI CDR 235 235
1 ETH10100-PCI LAN HW: 10/ 1 OOMB TX-PCI 215 215
1 CWP50051-ZFD SYS:CWP 5 SLOT BASE SYS 595 595
1 CWP50051-ZA SYS:CWP 5 SLOT BASE SYS
1 CWP50051-OR1 ACC:CWP5SLOTOPKIT
1 PRC5133-P54 PROC:P54C 133MHZ PROC 242 242
2 MPM4-16M MEM 16NIB EDO MEM EXP 122 244
1 EMC25606-CA MEM:256K SY-NC CACHE MOD 68 68
1 PCVl02-PCI CTRL:GPPH ADPTR 2MB DRAM 176 176
1 EVG142-COL DISPLAY: 14" COLOR 341 341
1 PCKl04-SKB KEYBD:SPACE SAVER 40 40
1 PWMI-PS2 MOUSE:2 BUTT0N MOUSE/PS2 30 30
1 B25-LC PWR CORDLINE CORD 8 8
1 HDI1200-4 DISK: 1.2GB 4500RPM IDE 257 257
1 CDR1200-Al DISK: 12-SP INT ATAPI CDR 235 235
1 ETH101001-PCI LAN HW: 10/100MB TX-PCI 215 215
TOTAL HARDWARE $84,547
</TABLE>
<TABLE>
SYSTEM SOFTWARE
<CAPTION>
ONE TIME
LICENSE
EXTENDED
QTY. STYLE DESCRIPTION CHARGE PRICE
<S> <C> <C> <C> <C>
1 NTS40-L O/S:NT 4.0 SERVER $1,129 $1,129
1 PCT2-CNT DATAMGT:WIN NT CLIENT AG 495 495
1 NTW40-L O/S:NT 4.0 WORKSTATION 199 199
TOTAL 1,823
</TABLE>
MKT303/691
(LOGO)
INFORMATION TECHNOLOGY INC.
PRODUCT LICENSE AGREEMENT
Agreement made between Information Technology, Inc (the "Vendor"), and the
"Customer" identified below.
I. LICENSED PRODUCT
1.1 LICENSE. Vendor grants to Customer and Customer accepts from
Vendor a nonexclusive and nontransferable license to use the products
Identified in Appendix A (the "Product") under the terms set forth in this
agreement. The license herein granted shall commence upon the date of
delivery of the Product and shall remain in effect for so long as Vendor's
warranties set forth in Article V remain in effect.
1.2 PROPRIETARY NATURE OF PRODUCT AND TITLE. The Product and any
operations manuals, instructions, and other documents or written materials
provided to Customer as instruction in the use of the Product (the
"Documentation") are acknowledged by Customer to be and contain Vendor's
proprietary information and trade secrets, whether or not any portion thereof
is or may be validly copyrighted or patented, acknowledged to be protected by
civil and criminal law, and acknowledged to be of great value to Vendor.
Except as specifically licensed under this agreement, title and all ownership
rights to the Product and the Documentation remain with Vendor. Customer
shall retain or affix such evidences of ownership and proprietary notices as
Vendor may reasonably request. This paragraph shall survive the term or
termination of this agreement.
1.3 USE OF PRODUCT. The Product may be used only for, by and on
behalf of Customer and only in connection with Customers business operations.
This license is granted only for use at a single location identified in
Appendix A and upon a single computer system (CPU) identified in Appendix A
and may not be used upon any other computer or at any other location except
as provided under Paragraph 1.4.
1.4 BACKUP AND EMERGENCY USE. In the event Customer is unable to
use the Product at the location Identified in Appendix: A due to an
emergency, or to test emergency procedures, Vendor grants to Customer the
right to use the Product at a location other than the location defined in
Appendix A. Any such use shall be subject to all other restrictions of this
agreement and shall continue only so long as the condition giving rise to
such use continues. Prior to commencing such use, if possible, and in any
event within forty-eight (48) hours of such use, Customer shall give Vendor
written notice of the circumstance, location and the expected length of such
use. Failure to give notice shall nullify Customer's right of emergency use,
as herein granted.
1.5 ASSIGNMENT. Customer rights under this agreement and in and to
the Product may not be assigned, licensed, sublicensed, pledged, or otherwise
transferred voluntarily, by operation of law or otherwise without Vendors
prior written consent, and any such prohibited assignment shall be null and
void.
II. CONSIDERATION
2.1 LICENSE FEE. In consideration of the license of the Product
granted under this agreement, Customer shall pay to Vendor the license fee
specified in Appendix A. Such license fee does not Include, except as
expressly provided in this agreement or Appendix A hereto, Installation or
maintenance of the Product, data base conversion, media, transportation
charges, or taxes, all of which costs and taxes shall be the obligation of
Customer.
2.2 MANNER OF PAYMENT. The license fee listed in Appendix
A shall be payable In the following manner
(A) A percentage of the license fee, as specified in Appendix A,
upon execution of this license agreement by Customer.
(B) The balance, including any applicable taxes, upon delivery of
the Product by Vendor to Customer.
Invoices respecting the license fee shall be rendered In accordance with the
above payment schedule and are payable to Vendor at Vendor's address set
forth below within ten (10) days of receipt.
2.3 TAXES. In addition to the license fee payable hereunder,
Customer shall pay all taxes (including, without limitation, sales, use,
privilege, ad valorem or excise taxes) and customs duties paid or now or
hereafter payable, however designated, levied or based on amounts payable to
Vendor hereunder or on Customer's use or possession of the Product under this
agreement or upon the presence of the Product at the location identified in
Appendix A, but exclusive of federal, state and local taxes based on Vendors
net income. Customer shall not deduct from payments to Vendor any amounts
paid or payable to third parties for customs duties or taxes, however
designated.
2.4 CURRENCY. The purchase price and any other charges arising
under this agreement shall be invoiced and be payable in U. S. Dollars.
2.5 LATE PAYMENT. Customer shall! pay a late payment charge of one
and one-half percent (1 1/2%) per month, or the maximum late payment charge
permitted by applicable law, which ever is less, on any amount payable by
Customer under this Agreement and not paid when due. Said late payment charge
shall be applied for each calendar month (or fraction thereof) that such
payment is not made following Its due date.
2.6 SECURITY. Vendor reserves and Customer grants to Vendor a
security interest in the rights of Customer for use of the Product and in the
Documentation as security for the performance by Customer of its obligations
hereunder including, but not limited to, payment of the license fee set forth
In Appendix A. A copy of this agreement may be filed In appropriate filing
offices at any time after signature by Customer as a financing statement or
Vendor may require and Customer shall execute a separate financing statement
for purposes of perfecting Vendor's security interest granted pursuant to the
provisions of this paragraph.
III. DELIVERY, TRAINING AND OPERATION
3.1 DELIVERY. Vendor shall deliver the Product and Customer shall
accept delivery of the Product at Customer's address set forth below. Unless
delayed, as hereinafter provided for, delivery shall be completed within one
(1) year of the date accepted by Vendor.
3.2 DELIVERY DELAYS. In the event Customer requests delay of
delivery, Vendor shall not be obligated to effect delivery of the Product
except upon thirty (30) days written notice by Customer to Vendor. If delay
in delivery is due to any cause beyond the control of Vendor, the date upon
which delivery Is to be completed shall be extended by the number of days of
such delay.
3.3 TRAINING. Classes in the operation of the Product are available
at the offices of Vendor, on a regularly schedule basis at Vendors normal
rates with respect thereto. All travel, meal and lodging expenses of Customer
in connection with such training shall be borne by Customer. Outside training
or assistance will be available solely at Vendors discretion and might be
charged to Customer at Vendors normal rates together with reasonable expenses
for travel, meals, lodging and local transportation.
3.4 ASSISTANCE BY CUSTOMER. Customer shall provide reasonable
assistance and cooperation to Vendor In preparation of the Product and the
delivery or Installation thereof. Such assistance and cooperation shall
Include, as appropriate, reasonable access to Customer's facility and to
Customer's records, as necessary.
3.5 DOCUMENTATION. Operations manuals in respect to the Product
will be delivered to Customer prior to or contemporaneously with the delivery
of the Product.
3.6 RISK OF LOSS. If the Product or the Documentation is lost or
damaged, in whole or in part, during shipment, Vendor will replace said
Product or Documentation at no additional charge to Customer. Upon delivery
In good condition of the Product and the Documentation, Customer shall be
responsible therefor and bear the risk of loss for said Product and
Documentation.
3.7 INSTALLATION ASSISTANCE. Vendor may, at its sole discretion,
assist Customer in any required installation of the Product at Vendor's
normal charges for such assistance. Expenses, including but not limited to
computer time, travel, meals, lodging and local transportation incurred in
connection therewith. shall be borne by Customer. In no event shall Vendor be
liable to Customer for loss of profits, consequential, incidental, indirect
or special damages arising from Vendor's efforts to assist in such
installation. Vendor agrees to treat Customer's confidential business with
the same security as it would its own.
3.8 OPERATION. Customer acknowledges and agrees that it is
exclusively responsible for the operation, supervision, man agreement and
control of the Product, including, but not limited to, providing adequate
training for its personnel, instituting appropriate security procedures, and
implementing reasonable procedures to examine and verify all output before
use. Vendor shall have no responsibility or liability for Customer's
selection or use of the Product or any associated equipment.
3.9 CUSTOMER OBLIGATIONS. In order to maintain the continuing
integrity and proper operation of the Product, Customer agrees to implement,
in the manner instructed by Vendor, each error correction and each
enhancement and improvement provided to Customer by Vendor. customers failure
to do so) shall relieve Vendor of any responsibility or liability whatsoever
for any failure or malfunction of the Product as modified by a subsequent
correction or improvement, but in no such event shall Customer be relieved of
the responsibility for payment of fees and charges otherwise properly
invoiced during the term hereof. If requested by Vendor, Customer agrees to
provide written documentation and details to Vendor to substantiate problems
and to assist Vendor in the identification and detection of problems, errors
and malfunctions; and Customer agrees that Vendor shall have no obligation or
liability for said problems until ii: has received such documentation and
details from Customer.
IV. VENDOR'S PROPRIETARY RIGHTS
4.1 NON-DISCLOSURE. Customer shall take all reasonable steps
necessary to ensure that neither the Product nor the Documentation, nor any
portion thereof, on magnetic tape or disk or in any other form, is made
available or disclosed by Customer or any of its agents or employees to any
other person, firm or corporation. Customer may disclose relevant aspects of
the Product and Documentation to its employees and agents to the extent such
disclosure is reasonably necessary to Customer's use of the Product,
provided, however, Customer agrees that it will cause all persons permitted
such access to the Product and the Documentation to observe and perform the
foregoing non- disclosure covenant, and that it will advise Vendor of the
procedures employed for this purpose. Customer shall hold Vendor harmless
against any loss, cost, expense, claim or liability, including reasonable
attorneys fees, resulting from Customer's breach of this non-disclosure
obligation. This paragraph shall survive the term or termination of this
agreement.
4.2 COPIES. Customer agrees that while the Product and the
Documentation are in its custody and possession, it will not (a) copy or
duplicate or permit anyone else to copy or duplicate any of the Product,
Documentation or information furnished by Vendor, or (b) create or attempt to
create, or permit others to create or attempt to create, by reverse
engineering or otherwise, the Product, the Documentation or other information
made available under this agreement or otherwise, (whether oral, written,
tangible or intangible). Notwithstanding the foregoing, Customer may make and
retain two (2) copies of the Product, Including all enhancements and changes
hereto, only for use in emergencies or to test emergency procedures and may
copy for its own use and at Its own expense the Documentation, but shall
advise Vendor of the specific item copied, the number of copies made and
their distribution. The original and any copies in whole or in part of the
Product or Documentation which are made pursuant to this provision shall be
the exclusive property of Vendor and shall be fully subject to the provisions
of this agreement. Customer agrees to retain or place Vendor's proprietary
notice on any copies or partial copies made pursuant to this provision,
4.3 UNAUTHORIZED ACTS. Customer agrees to notify Vendor immediately
of the unauthorized possession, use, or knowledge of the Product,
Documentation or any information made available to Customer pursuant to this
agreement, by any organization not authorized by this agreement to have such
possession, use or knowledge. Customer will, thereafter, fully cooperate with
Vendor in the protection and redress of Vendor's proprietary rights.
Customers compliance with this paragraph shall not, however, be construed in
any way as a waiver of Vendor's rights against Customer for Customers
negligent or intentional harm to Vendors proprietary rights, or for breach of
Vendors contractual rights.
4.4 INSPECTION. To assist Vendor in the protection of its
proprietary rights, Customer shall permit representatives of Vendor to
inspect the Product and Documentation and their use, including inspection of
any location in which they are being used or kept at all reasonable limes.
4.5 INJUNCTIVE RELIEF. If Customer attempts to use, copy, license,
sublicense, sell or otherwise convey or to disclose the Product or
Documentation, in any manner contrary to the terms of this agreement or in
derogation of Vendors proprietary rights, whether such rights are explicitly
herein stated, determined by law or otherwise, Vendor shall have, in addition
to any other remedies available to 1, the night to injunctive relief
enjoining such actions, Customer hereby acknowledging that other remedies are
inadequate.
V. MAINTENANCE, ENHANCEMENTS AND WARRANTIES
5.1 PRODUCT WARRANTY. Vendor warrants that at delivery, the Product
will perform in accordance with the then current Documentation provided
Customer, and further warrants that it has the right to authorize the use of
the Product under this agreement. Vendor's obligation and liability under
this paragraph shall, however, be limited to the replacement and correction
of the Product so that it will so perform, or to obtaining any authorization
necessary to make effective the grant of license to Customer of the use of
the Product.
5.2 PATENT INFRINGEMENTS. Vendor shall hold harmless and defend
Customer from any claim or any suit based on any claim that the use of the
Product by Customer under this agreement infringes on any patent, copyright,
trademark, or other proprietary right of any third party, provided that
Customer gives Vendor prompt and written notice of any such claim or suit and
permits Vendor to control the defense thereof.
5.3 WARRANTY DISCLAIMER. THE FOREGOING WARRANTIES ARE IN LIEU OF
ALL OTHER WARRANTIES AND NO OTHER WARRANTY IS EXPRESSED OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE.
5.4 RENEWAL OF WARRANTIES. Unless sooner terminated pursuant to the
provisions of paragraph 5.6, the warranties granted by paragraphs 5.1 and 5.2
(subject, however, to all limitations and disclaimers contained within this
agreement) and the right to any enhancements or corrections developed by
Vendor under paragraph 5.5. shall be subject to extension for successive
one-year warranty periods commencing on the date of the delivery of the
Product. Each one year extension (the "Warranty Period') shall be deemed to
automatically occur unless notice is given by either Customer or Vendor of an
election not to so extend, such notice to be given on or prior to the
sixtieth (60th) day preceding the Warranty Period. Any such extension shall
in no event be effective unless Customer shall have paid to Vendor on or
prior to the beginning of the Warranty Period its then current annual
maintenance fee.
5.5 ENHANCEMENTS AND CHANGES. Vendor shall provide Customer with
all enhancements and changes to the Product designed or developed by Vendor
and released to its other customers during the Warranty Period. Any change or
enhancement to the Product, whether developed or designed by Vendor or by
Customer shall be and remain the property of Vendor, provided, however, that
Customer shall be entitled to a perpetual license without additional license
fee of any enhancements or corrections developed by Customer. Vendor reserves
the right to make changes in operating procedures, program language, file
structures, access techniques, general purpose programs, data storage
requirements, input and output formats, report formats, types of hardware
supported, throughput. and other related programming and documentation
improvements required to maintain the Product current. As part of these
services, Vendor will provide Customer the changes with written instructions
concerning implementation. It is understood and agreed that Vendor provision
of improvements and enhancements under this paragraph does not include
providing to Customer new product which may result from rewriting the
Product. Vendor atone shall determine whether the work product of Vendor
constitutes new product as a result of a complete rewrite (which is not
provided to Customer hereunder) or an improvement or enhancement of the
Product (which will be provided to Customer).
5.6 TERMINATION OF WARRANTIES. The warranties expressed in
paragraphs 5.1 and 5.2 and Customers rights under paragraph 5.5 shall
immediately terminate if the Product is revised, changed, enhanced, modified
or maintained by any one other than Vendor without the prior specific
direction or written approval of Vendor.
5.7 LIMITATION OF LIABILITY. Customer expressly agrees that Vendors
responsibilities in the event of its breach of the warranties contained in
paragraphs 5.1 and 5.2 are as set forth in said paragraphs. Vendors liability
for damages, including but not limited to liability for patent or copyright
infringement, regardless of the form of action, shall not exceed the license
fee set forth in Appendix A to this agreement and shall arise only if the
remedies provided in paragraphs 5.1 and 5.2 are not fulfilled by Vendor.
Customer further agrees that Vendor will not be liable for any lost profits,
or for any claim or demand against Customer by any other party, except a
claim for patent or copyright infringement as provided herein. IN NO EVENT
WILL VENDOR BE LIABLE FOR CONSEQUENTIAL DAMAGES EVEN IF VENDOR HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. No action, regardless of form,
arising out of this agreement, may be brought by either party more than one
(1) year after the cause of action has accrued, except that an action for
nonpayment may be brought within one (1 ) year after the date of last
payment- No action by Vendor for wrongful disclosure or use of the Product or
Documentation shall be deemed to have accrued until Vendor receives actual
notice of such wrongful disclosure or use.
THE CUSTOMER'S REMEDIES SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE
VI. DEFAULT
6.1 TERMINATION. Vendor may terminate this agreement and the
license granted hereunder in the event of a default by Customer unless
Customer shall have cured the event of default, as hereinafter defined within
twenty (20) days after notice of such event of default given by Vendor to
Customer. This agreement and the license granted hereunder snail
automatically terminate if Vendor's warranties are not renewed as
contemplated in paragraph 5.4 hereof. Upon any termination of this agreement,
Customer shall deliver to Vendor the Product, the Documentation and ail
copies thereof and shall also warrant in writing that ail copies have been
returned to Vendor or destroyed.
6.2 EVENTS OF DEFAULT. An event of default is defined as
any of the following:
(A) Customer's failure to pay any amounts required to be paid to
Vendor under this agreement on a timely basis:
(B) Any attempt (i) to assign, sell, mortgage, lease, sublease,
license, sublicense or otherwise convey, (ii) to grant any interest in, right
of use of, or access to, or (iii) to otherwise disclose the Product or the
Documentation, except, in any such case, as herein expressly permitted or as
consented to in writing by the Vendor,
(C) Causing or permitting any encumbrance, of any nature whatsoever
to attach to Customers interest in the Product in favor of any person or
entity other than Vendor's
(D) The entry of any order for relief under any provision of the
federal bankruptcy code in any bankruptcy proceedings initiated by or against
Customer or
(E) Customer's breach of any of the terms or conditions of this
agreement.
6.3 DAMAGES. Upon the occurrence of an event of default without
cure within the period of time above-provided, all license or other fees
payable to Vendor under this agreement shall without notice or demand by
Vendor become immediately due and payable as liquidated carriages, This
provision for liquidated damages shall not be regarded as a waiver by Vendor
of any other rights to which vendor may be entitled in the event of Customers
default, but rather, such remedy shall be an addition to any other remedy
lawfully available to Vendor.
VII. GENERAL
7.1 TITLES. Titles and paragraph headings are for reference
purposes only and are not to be considered a part of this agreement
7.2 FORCE MAJEURE. No party shall be liable for delay in
performance hereunder due to causes beyond its control, including but not
limited to acts of God, fires, strikes, delinquencies of suppliers. acts of
war or intervention by any governmental authority, and each party shall take
steps to minimize any such delay.
7.3 WAIVER. No waver of any breach of any provision of this
agreement snail constitute a waiver of any prior, concurrent or subsequent
breach of the same or any other provisions hereof and no waiver snail be
effective unless mace in writing and signed by an authorized representative
of the party to be charged therewith.
7.4 SEVERABILITY. In the event that any provision of this agreement
snail be illegal or otherwise unenforceable, such Provision snail be severed
from this agreement and the entire agreement shall not fail on account
thereof, the balance of the agreement continuing in full force and effect.
7.5 NOTICES. Any notice which either party hereto is required or
permitted to give hereunder shall be addressed to the party to be charged
therewith at the address set forth below and shall be given by certified or
registered mail. Any such notice shall be deemed given on the date of deposit
in the mail.
7.6 ENTIRE AGREEMENT. THE PARTIES HERETO ACKNOWLEDGE THAT EACH HAS
READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS. THE
PARTIES FURTHER AGREE THAT THIS AGREEMENT AND ANY MODIFICATIONS MADE PURSUANT
TO IT CONSTITUTE THE COMPLETE AND EXCLUSIVE WRITT EN EXPRESSION OF THE TERMS
OF THE AGREEMENT BETWEEN THE PARTIES, AND SUPERSEDE ALL PRICIR OR
CONTEMPORANEOUS PROPOSALS, ORAL CR WRITTEN, UNDERSTANDINGS, REPRESENTATICINS,
CONDITIONS, WARRANTIES, COVENANTS, AND ALL OTHER COMMUNICATIONS BE -FWEEN THE
PARTIES RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT. THE PARTIES FURTHER
AGREE THAT THIS AGREEMENT MAY NOT IN ANY WAY BE EXPLAINED OR SUPPLEMENTED BY
A PRIOR OR EXISTING COURSE OF DEALINGS BETWEEN THE PARTIES, BY ANY USAGE OF
TRADE OR CUSTOM, OR BY ANY PRIOR PERFORMANCE BETWEEN THE PARTIES PURSUANT TO
THIS AGREEMENT OR OTHERWISE. IN THE EVENT CUSTOMER ISSUES A PURCHASE ORDER OR
OTHER INSTRUMENT COVERING THE SERVICES OR DOCUMENTATION HEREIN SPECIFIED, IT
IS UNDERSTOOD AND AGREED THAT SUCH PURCHASE ORDER OR OTHER INSTRUMENT IS FOR
CUSTOMER'S INTERNAL USE AND PURPOSES ONLY AND SHALL IN NO WAY AFFECT ANY OF
THE TERMS AND CONDITIONS OF THIS AGREEMENT.
7.7 GOVERNING LAW. This agreement is accepted in the State of
Nebraska, and shall be enforced in accordance with and governed by the laws
of the State of Nebraska.
7.3 CHOICE OF FORUM. Any action arising out of or related to this
agreement or the transaction herein described, whether at law or in equity,
may be instituted in and litigated in the state or federal courts of the
State of Nebraska. In accordance herewith. the parties hereto submit to the
jurisdiction of the courts of said state. Any party being not a resident of
Nebraska at the time of suit hereby appoints the Secretary of State of
Nebraska as its agent for receipt of service of process.
7.9 ATTORNEY'S FEES. In the event that any action or
proceeding
is brought in connection with this agreement the prevailing party
therein shall be entitled to recover its costs
and reasonable attorney's fees.
7.10 EFFECTIVE DATE. This agreement shall be effective on the date
accepted and executed by an authorized representative of Vendor.
CUSTOMER:
POINTE FINANCIAL CORPORATION
Signature: /s/
Name: C. DARYL HOLLIS
Title: Sr. Vice President
Address: 21845 Powerline Road
Boca Raton, FL 33433
Date: 9/12/95
VENDOR:
INFORMATION TECHNOLOGY, INC.
Signature: /s/
Name: Donald F. Dillon
Title: *President
Address: 1345 Old Cheney Road
Lincoln, NE 68512
Date Accepted: September 22, 1995
APPENDIX
DUE UPON EXECUTION 30%
COMPUTER SYSTEM (CPU): N/A (A99)
LOCATION WHERE THE PRODUCT(S) WILL BE USED:
POINTE BANK
1 WEST FLAMINGO DRIVE
PEMBROKE PINES, FL 33027
<TABLE>
<CAPTION>
PRODUCT(S) AND LICENSE FEE(S)
<S> <C> <C>
504-002 Plus Run-Time System (2 Workstations for development only) $ 0
507-004 Plus Per Workstation Fee (4 @ $450) 1,800
TOTAL: $1,800
</TABLE>
<TABLE>
<CAPTION>
*Including this agreement, the revised site schedule is as follows:
# OF # OF
SITE # LOCATION NAME WORKSTATIONS SITES
<S> <C> <C> <C>
1 Main Office 9 1
2 Aventura 7 1
MKT307/0195
(LOGO)
INFORMATION TECHNOLOGY INC.
EQUIPMENT SALE AGREEMENT
Agreement made between Information Technology, Inc. (the "Vendor"),
and the "Customer" identified below.
I. PURCHASE
1.1 Customer hereby purchases from Vendor and Vendor hereby sells
to Customer the equipment identified in Appendix A (the "Equipment"), upon
the terms set forth in this agreement.
II. DELIVERY
2.1 Delivery and installation of the Equipment will be made by the
manufacturer of the Equipment identified in Appendix A (the "Manufacturer's,
at Customer's address set forth below. Customer agrees to have a site
adequately and properly prepared, in accordance with Manufacturer's
instructions, to receive and accept delivery of the Equipment. In no event
shall Vendor be responsible to Customer for any delays in delivery or
installation or any damages to Customer resulting from such delays.
III. CONSIDERATION
3.1 PURCHASE PRICE. As and for the purchase price for the
Equipment, Customer agrees to pay Vendor and Vendor agrees to accept from
Customer, the purchase price specified in Appendix A.
3.2 TAXES AND OTHER CHARGES. In addition to the purchase price,
Customer shall pay all transportation charges and all taxes (including,
without limitation, sales, use, privilege, ad valorem or excise taxes) and
customs duties paid or payable by Vendor, however designated, levied or based
on amounts payable to Vendor under this agreement, but exclusive of federal,
state and local taxes based on Vendor's net income. If additional labor and
rigging are required for installation due to Customer's special site
requirements, Customer will pay those costs, including costs to meet union or
local law requirements. Customer shall not deduct from payments to Vendor any
amounts paid or payable to third parties for transportation charges, customs
duties or taxes, however designated.
3.3 MANNER OF PAYMENTS. The purchase price and other charges
arising under this agreement shall be payable by Customer to Vendor in the
following manner:
(A) A percentage of the purchase price, as specified in Appendix A,
shall be payable upon execution of this agreement by Customer: the receipt or
deposit of such payment, however, shall not constitute Vendor's acceptance of
this agreement.
(B) The balance of the purchase price, together with any
transportation charges and any taxes and duties theretofore incurred by
Vendor, shall be payable upon delivery of the Equipment to Customer.
(C) Any taxes, duties, or other charges incurred by Vendor
following delivery of the Equipment shall be payable within ten (10) days of
receipt by Customer of Vendor's invoice therefor.
3.4 CURRENCY. The purchase price and any other charges arising
under this agreement shall be invoiced and be payable in U.S. Dollars.
3.5 LATE PAYMENT. Customer shall pay a late payment charge of one
and one-half percent (11/2%) per month, or the maximum late payment charge
permitted by applicable law, whichever is less, on any amount payable by
Customer under this Agreement and not paid when due. Said late payment charge
shall be applied for each calendar month (or fraction thereof)in that such
payment is not made following its due date.
IV. TITLE
4.1 Until such time as the purchase price and any other charges
payable to Vendor as of the date of delivery have been paid in full, the
Equipment and ail instruction manuals therefor shall remain the property of
Vendor and, at the option of Vendor, shall be returned to Vendor at
Customer's expense in the event the purchase price is not paid as
here-in-above provided.
V. SECURITY
5.1 Vendor reserves and Customer grants to Vendor a security
interest in the Equipment as security for the performance by Customer of its
obligations hereunder including, but not limited to, payment of the purchase
price and other charges as specified in Section III above. A copy of this
agreement may be filed in appropriate filing offices at any time after
signature by Customer as a financing statement or Vendor may require and
Customer shall execute a separate financing statement for purposes of
perfecting Vendor's security interest granted pursuant to the provisions of
this paragraph.
VI. CUSTOMER OBLIGATIONS
6.1 RISK OF LOSS. From and after the date of delivery, the risk of
loss or damage to the Equipment shall be on the Customer.
6.2 OPERATION. Customer acknowledges and agrees that it is
exclusively responsible for the operation, supervision, management and
control of the Equipment, including, but not limited to, providing adequate
training for its personnel, instituting appropriate security procedures, and
implementing reasonable procedures to examine and verify ail output before
use. Vendor shall have no responsibility or liability for Customer's
selection or use of the Equipment or any associated equipment.
VII. WARRANTIES
7.1 WARRANTY. Vendor warrants to Customer that it has the right to
transfer title of the Equipment to Customer. Vendor's sole liability under
this warranty shall be to obtain any title or authorization necessary to
transfer such title to Customer.
7.2 DISCLAIMER. THE FOREGOING WARRANTY IS IN LIEU OF ALL
OTHER WARRANTIES AND NO OTHER WARRANTY IS EXPRESSED OR IMPLIED,
INCLUDING,
BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
7.3 MANUFACTURER'S WARRANTY. Customer expressly understands and
agrees that warranties regarding patents, materials, workmanship or use of
the Equipment (the "Manufacturer's Warranty's, if any, are made exclusively
by the Manufacturer and not by Vendor, and if made, shall be encompassed
within a separate agreement. Customer's exclusive remedy under Manufacturer's
Warranty snail be as provided therein and shall lie exclusively against and
be obtainable only from the Manufacturer, and Customer expressly agrees that
it shall have no claim or cause of action against Vendor in the event the
Manufacturer is for any reason unwilling or unable to perform under the terms
of Manufacturer's Warranty.
7.4 LIMITATION OF LIABILITY. Customer expressly agrees that
vendor's responsibilities in the event of its breach of the warranties
contained in paragraph 7.1 of this agreement are as set forth in said
paragraph. Vendor's liability for damages, regardless of the form of action
shall not exceed the purchase price set forth in Appendix A to this agreement
and shall arise only if the remedies set forth in paragraph 7.1 are not
fulfilled by Vendor. Customer further agrees that Vendor will not be liable
for any lost profits, or for any claim or demand against Customer by any
other party. IN NO EVENT WILL VENDOR BE LIABLE FOR CONSEQUENTIAL DAMAGES EVEN
IF VENDOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. No action,
regardless of form, arising out of the transactions under this agreement, may
be brought by either party more than one (1) year after the cause of action
has accrued, except that an action for non-payment may be brought within one
(1) year after the date of the last payment. THE CUSTOMER'S REMEDIES SET
FORTH IN THIS AGREEMENT ARE EXCLUSIVE.
VIII. DEFAULT
8.1 REMEDY. Upon the occurrence of an event of default, as
hereinafter defined, by Customer, if the Equipment has theretofore been
delivered, Vendor may recover, together with any incidental damages, any
unpaid portion of the purchase price of the Equipment as specified in
Appendix A hereto. If the Equipment has not been delivered, in which event
Vendor may withhold delivery of such Equipment, or if the Equipment is
returned to Vendor upon Vendor's election pursuant to Section IV, Vendor
shall resell the Equipment. Upon such resale, Vendor shall recover from
Customer the difference between the unpaid portion of the purchase price, as
specified in Appendix A, and the resale price. together with any incidental
damages, including expenses of resale, sustained by Vendor by reason of
Customer's breach. If the resale price exceeds the unpaid portion of the
purchase price and Vendor's incidental damages, Vendor shall remit the excess
to Customer.
8.2 EVENTS OF DEFAULT. As utilized in this agreement, an
event of default is defined as any of the following:
(A) Customer's failure to pay any amounts required to be paid to
Vendor under this agreement on a timely basis;
(B) Until the purchase price has been paid in full, any attempt by
Customer to assign, sell. mortgage, or otherwise convey the Equipment;
(C) Prior to the payment in full of the purchase price, Customer
causing or permitting any encumbrance, of any nature whatsoever, to attach to
Customer's interest in the Equipment in favor of any person or entity other
than Vendor;
(D) The entry of any order for relief under any provision of the
federal bankruptcy code in any bankruptcy proceedings initiated by or against
Customer; or
(E) Customer's breach of any of the terms or conditions of by the
laws of the State of Nebraska. this agreement.
IX. GENERAL
9.1 TITLES. Titles and paragraph headings are for reference
purposes only and are not to be considered a part of this agreement.
9.2 FORCE MAJEURE. No party shall be liable for delay in
performance hereunder due to causes beyond its control, including but not
limited to acts of God, fires, strikes, delinquencies of suppliers,
intervention of any governmental authority or acts of war, and each party
shall take steps to minimize any such delay.
9.3 WAIVER. No waiver of any breach of any provision of this
agreement shall constitute a waiver of any prior, concurrent or subsequent
breach of the same or any other provisions hereof and no waiver shall be
effective unless made in writing and signed by an authorized representative
of the party to be charged therewith.
9.4 SEVERABILITY. In the event that any provision of this agreement
shall be illegal or otherwise unenforceable, such provision shall be severed
from this agreement and the entire agreement shall not fail on account
thereof, the balance of the agreement continuing in full force and effect.
9.5 NOTICES. Any notice which either party hereto is required or
permitted to give hereunder shall be addressed to the party to be charged
therewith at the address set forth below and shall be given by certified or
registered mail. Any such notice shall be deemed given on the date of deposit
in the mail.
9.6 ENTIRE AGREEMENT. THE PARTIES HERETO ACKNOWLEDGE THAT EACH HAS
READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS. THE
PARTIES FURTHER AGREE THAT THIS AGREEMENT AND ANY MODIFICATIONS MADE PURSUANT
TO IT CONSTITUTE THE COMPLETE AND EXCLUSIVE WRITTEN EXPRESSION OF THE TERMS
OF THE AGREEMENT BETWEEN THE PARTIES, AND SUPERSEDE ALL PRIOR OR
CONTEMPORANEOUS PROPOSALS, ORAL OR WRITTI EN, UNDERSTANDINGS,
REPRESENTATIONS, CONDITIONS, WARRANTIES, COVENANTS, AND ALL OTHER
COMMUNICATIONS BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER OF THIS
AGREEMENT. THE PARTIES FURTHER AGREE THAT THIS AGREEMENT MAY NOT IN ANY WAY
BE EXPLAINED OR SUPPLEMENTED BY A PRIOR OR EXISTING COURSE OF DEALINGS
BETWEEN THE PARTIES, BY ANY USAGE OF TRADE OR CUSTOM, OR BY ANY PRIOR
PERFORMANCE BETWEEN THE Parties PURSUANT TO THIS AGREEMENT OR OTHERWISE. IN
THE EVENT CUSTOMER ISSUES A PURCHASE ORDER OR OTHER INSTRUMENT COVERING THE
EQUIPMENT HEREIN SPECIFIED, IT IS UNDERSTOOD AND AGREED THAT SUCH PURCHASE
ORDER OR OTHER INSTRUMENT IS FOR CUSTOMER'S INTERNAL USE AND PURPOSES ONLY
AND SHALL IN NO WAY AFFECT ANY OF THE TERMS AND CONDITIONS OF THIS AGREEMENT.
9.7 GOVERNING LAW. This agreement is accepted in the State of
Nebraska, and shall be enforced in accordance with and governed by the laws
of the State of Nebraska.
9.8 CHOICE OF FORUM. Any action arising out of or related to this
agreement or the transaction herein described, whether at law or in equity,
may be instituted in and litigated in the state or federal courts of the
State of Nebraska. In accordance herewith, the parties hereto submit to the
jurisdiction of the courts of said state. Any party being not a resident of
Nebraska at the time of suit hereby appoints the Secretary of State of
Nebraska as its agent for receipt of service of process.
9.9 ATTORNEY'S FEES. In the event that any action or proceeding is
brought in connection with this agreement the prevailing party therein shall
be entitled to recover its costs and reasonable attorney's fees.
9.10 EFFECTIVE DATE. This agreement shall be effective on the date
accepted and executed by an authorized representative of Vendor.
CUSTOMER:
POINTE FINANCIAL CORPORATION
Signature: /s/
Name: R. CARL PALMER, JR. / PAMELA A. OLSON
Title: PRESIDENT-CEO / VICE PRESIDENT
Address: 21845 POWERLINE ROAD
BOCA RATON FL 33433
Date: FEBRUARY 24, 1997
VENDOR:
INFORMATION TECHNOLOGY, INC.
Signature: /s/
Name: Michael K. Young
Title: Senior Vice President
Address: 1345 Old Cheney Road
Lincoln, NE 68512
Date Accepted: May 23, 1997
APPENDIX A
EQUIPMENT AND TERMS
1. MANUFACTURER. The Manufacturer of the Equipment subject
to this agreement is: Unisys Corporation
2. PURCHASE PRICE: The purchase price for the Equipment is $242,070 . 0 %
thereof shall be payable upon execution of this agreement, the balance
upon delivery of the Equipment.
3. EQUIPMENT. The Equipment subject to this agreement consists of the
following:
</TABLE>
<TABLE>
<CAPTION>
PURCHASE EXTENDED
QTY. STYLE DESCRIPTION PRICE PRICE
<S> <C> <C> <C> <C>
1 NX4601-11 SYS. NX460 I -MODEL 11 $101,110 $101,110
1 NX4601-AP1 CABINET:NX4601-11
1 OR400-SY1 PROC:SINGLE IST PROC
1 OR400-OP ACC.OPERATIONAL CODE
1 NX4601-100 FUNCT'L S/V: NX4601-11
1 A14-96S MEM:96MB INCRENENT
1 NX4600-CP2 INSTL:NX4600 COW PKG 2 35,850 335,850
1 RM5-CA4 INSTL:CHANNEL ADPTR MOD
1 CA3301-FT ADPTR:CA RACK FEED THRU
1 CBLIO-CS CABLE:10FT CSBUS
1 CA622-BAS CTRL:ENTRY 802.3 BASE
1 CA600-OMS ADPTR:ETH ADAPTER
1 CP2013-5 I/F:802.3 LAN TRANSC VER
1 CHN36-CNV UPGRD:3U-6U CA RACK UPGR
1 RM36-FPM INSTL:FRAME ASSY, 36U
1 RM36-AP1 INSTL:SKIN-TOP, REAR, SIDE
1 RM2-TRM INSTL:APPEARANCE TRIM
1 RM1319-HK INSTL:FRONT FILLERS
1 RM1936-FOT INSTL:STABILIZER FOOT
ASD1545-SEA DISK:1.54 GB SE 180 SECT
1 VX1401-BSE SYS:BASIC SERVER 1X1
1 SFR600081-ZA2 SYS:PENT PRO BASE SYSTEM
1 SXE6200-512 PROCTP 200MZ W/512 CA
1 NIEM62 I-SIM MEM:MEM CARD W/SIMM SKTS
1 RAD341-PCI CTRL:3CHAN RAID W/4MB CA
1 CDR1200-SI DISK:12-SP INT SCSI CDR
2 HDS2000-WC5 DISK:2G SCA WIDE SCSI
1 PCV102-PCI CTRL:GRPH ADATR 2MB DRAM
1 PCI300-SUN CTRL:ULTRA NARROW SCSI
1 CBL421-SXE CABLE:SXE WIDE SCSI CBL
1 ETH101001-PCI LAN HW:10/100MB TX - PCI
1 PCT4000-INT TAPE:4GB INTERNAL TAPE
1 VXF4000-81Z INSTL:FASCIA, NT SERVER
1 VX9999-CPS INSTL:CLEARPATH SVR APPL
1 NX4010-FNT INSTL.-SINGLE DOMAIN PAGE
1 CCP6065-XED INSTL:DIFF. CCP KIT
1 CBL25-CSD CABLE:25FT EXT DIFF BUS
2 vx4000-xcr COMM HW:TRANSCEIVER
4 DSH600007-TBT CABLE:TW PAR 10 BAST, 7M
1 VX4004-SVvrr ACC:MONIKEY/MOUSE SWTICH
1 VX4000-SVv'H ACC:SWITCHING HUB
1 CBL25-APX CABLE:25 FT APEX SWITCH
2 CA312-SCI ADPTR:DIFFERENTIAL SCS12 7,500 15,000
1 HS8505-TD TAPE:8MM TABLE TOP DIF 4,495 4,495
2 CBL313-IOA CABLE: 10' SCSI I/0 100 200
1 0P378-33 ADPTR:DATA COMM HOST 4 4,000 4,000
1 CBL378-8 CABLE:CONN BOX - 8 FT 150 150
1 OMS-332144-S25 DISK:PKG SP 4X1, 545MB
1 OMS3000-SC DISK:3UJ SCSI RACK W/PCM
1 OSM1000-040 UPGRD:OSMf50P-C SW2WD
1 OSM3000-APM UPGRD:ALWAYS POWER MOD
1 OSM3000-SBS UPGRD:0SM STATUS BUS SLV
1 OSM3000-RMK UPGRD:USE CAB MOUNTING K
4 OSD2100-S25 DISK:DEV CAGE 1.545MB SP
1 RM3-APC POWER:AUTOMATIC CONTROL 6,000 6,000
1 WX400064-MEM MEM:INTTIAL 64NlBMEMORY
8 MTP6-8M MEM:60NS PARITY/TIN/72P
2 OSM1000-PRC INSTL.OSM IEC320 PWR CRD
TOTAL HARDWARE $180,185
</TABLE>
SYSTEM SOFTWARE
<TABLE>
<CAPTION>
INITIAL
ALC EXTENDED
QTY. STYLE DESCRIPTION PRICE PRICE
<S> <C> <C> <C> <C>
1 NXU4601-11W SUBSCRN:SSU 4601-11 S2,055 $ 2.055
1 NXIO-SSW SLBSCRN:SSU
1 TXCI-API GLI:TXCLIENT API IU
5 ICW30-CS WRKST SW:INFOCONNECT CS
1 NXP30-DCS COM SW:DATA COMM 7,700 7,700
1 NXI0-DCS COM SW:DATA COMM
1 NXP30-BYC COM SW:BISYNC PROTOCOL 2,673 2,673
1 NXPIOBYC COM SW:BISYNC PROTOCOL,
1 NXP30-RMP COM SW:REMOTE PRINT SYS 7,832 7,832
1 NXIO-RMP COM SW:REMOTE PRINT SYS
1 VXS 1104-IN IOE:NT/TMCP IXI-4 ENGLISH
1 NTS35104-L O/S,NT 3.51 SERVER 4 PROC
1 A5300-SL2 DRIVER: SNINI TAPE 525 525
TOTAL SOFTWARE $20,785
</TABLE>
<TABLE>
<CAPTION>
ONE TIME
LICENSE EXTENDED
QTY. STYLE DESCRIPTION PRICE PRICE
<S> <C> <C> <C> <C>
1 NXS4601-11W IOE:NT/MCP 4601-11 $41,100 $41,100
1 NIX10-MCM 10E.NX SYS SW CORMEDIA
1 NX1O-CPW IOE:NT/MCP COMM PLAT SW
1 NXIO-CNN IOE:NT/NlCP COMM NW SW
1 NX4600-PSS IOE:PLATFORM SPECIFIC SW
1 NXC4-ODL DATAMGT:ODBC 4 USER LIC
1 NXCI-CSL OLPT:1 USER C/S LIC LO
1 NXC25-NXV WRKST SW:ICXVIEW 25U LO
1 TXCI-R.T GUI:TXCLIENT R/T IU
TOTAL ONE TIME LICENSE $41,100
</TABLE>
MKT3031691
(LOGO)
INFORMATION TECHNOLOGY INC.
EQUIPMENT SALE AGREEMENT
Agreement made between Information Technology, Inc. (the "Vendor"),
and the "Customer" identified below.
I. PURCHASE
1.1 Customer hereby purchases from Vendor and Vendor hereby sells
to Customer the equipment identified in Appendix A (the "Equipment"), upon
the terms set forth in this agreement.
III. DELIVERY
2.1 Delivery and installation of the Equipment will be made by the
manufacturer of the Equipment identified in Appendix A (the "Manufacturer"),
at Customer's address set forth below. Customer agrees to have a site
adequately and properly prepared, in accordance with Manufacturer's
instructions, to receive and accept delivery of the Equipment. In no event
shall Vendor be responsible to Customer for any delays in delivery or
Installation or any damages to Customer resulting from such delays.
III.. CONSIDERATION
3.1 PURCHASE PRICE. As and for the purchase price for the
Equipment, Customer agrees to pay Vendor and Vendor agrees to accept from
Customer, the purchase price specified in Appendix A.
3.2 TAXES AND OTHER CHARGES. In addition to the purchase price,
Customer shall pay all transportation charges and all taxes (including,
without limitation, sales, use, privilege, ad valorem or excise taxes) and
customs duties paid or payable by Vendor, however designated, levied or based
on amounts payable to Vendor under this agreement, but exclusive of federal,
state and local taxes based on Vendor's net Income. if additional labor and
rigging are required for installation due to Customer's special site
requirements, Customer will pay those costs, including costs to meet union or
local law requirements. Customer shall not deduct from payments to Vendor any
amounts paid or payable to third parties for transportation charges, customs
duties or taxes, however designated.
3.3 MANNER OF PAYMENTS. The purchase price and other charges
arising under this agreement shall be payable by Customer to Vendor in the
following manner.
(A) A percentage of the purchase price, as specified in Appendix(A,
shall be payable upon execution of this agreement by Customer-, the receipt
or deposit of such payment, however, shall not constitute Vendor's acceptance
of this agreement.
(B) The balance of the purchase price, together with any
transportation charges and any taxes and duties theretofore incurred by
Vendor, shall be payable upon delivery of the Equipment to Customer.
(C) Any taxes, dudes, or other charges incurred by Vendor following
delivery of the Equipment shall be payable within ten (10) days of receipt by
Customer of Vendors invoice therefor.
3.4 CURRENCY. The purchase price and any other charges arising
under this agreement shall be invoiced and be payable in U. S. Dollars.
3.5 LATE PAYMENT. Customer shall pay a late payment charge of one
and one-half percent (1 1/2%) per month, or the maximum late payment charge
permitted by applicable law, whichever is less, on any amount payable by
Customer under this Agreement and not paid when due. Said late payment charge
shall be applied for each calendar month (or fraction thereon that such
payment is not made following its due date.
IV. TITLE
4.1 Until such time as the purchase price and any other charges
payable to Vendor as of the date of delivery have been paid in full, the
Equipment and all instruction manuals therefor shall remain the property of
Vendor and, at the option of Vendor, shall be returned to Vendor at Customers
expense in the event the purchase price is not paid as here-in-above
provided.
V. SECURITY
5.1 Vendor reserves and Customer grants to Vendor a security
interest in the Equipment as security for the performance by Customer of Its
obligations hereunder Including, but not limited to, payment of the purchase
price and other charges as specified in Section Ill above. A copy of this
agreement may be filed in appropriate filing offices at any time after
signature by Customer as a financing statement or Vendor may require and
Customer shall execute a separate financing statement for purposes of
perfecting Vendors security interest granted pursuant to the provisions of
this paragraph.
VI. CUSTOMER OBLIGATIONS
6.1 RISK OF LOSS. From and after the date of delivery, the risk of
loss or damage to the Equipment shall be on the Customer.
6.2 OPERATION. Customer acknowledges and agrees that it is
exclusively responsible for the operation, supervision, management and
control of the Equipment, including, but not limited to, providing adequate
training for its personnel, instituting appropriate security procedures, and
Implementing reasonable procedures to examine and verify all output before
use. Vendor shall have no responsibility or liability for Customers selection
or use of the Equipment or any associated equipment
VII. WARRANTIES
7.1 WARRANTY. Vendor warrants to Customer that it has the right to
transfer title of the Equipment to Customer. Vendor's sole liability under
this warranty shall be to obtain any title or authorization necessary to
transfer such title to Customer.
7.2 DISCLAIMERL THE FOREGOING WARRANTY IS IN LIEU OF ALL
OTHER WARRANTIES AND NO OTHER WARRANTY IS EXPRESSED OR IMPLIED,
INCLUDING,
BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
7.3 MANUFACTURER*S WARRANTY. Customer expressly understands and
agrees that warranties regarding patents, materials, workmanship or use of
the Equipment (the "Manufacturer's Warranty"), if any, are made exclusively
by the Manufacturer and not by Vendor, and if made, shall be encompassed
within a separate agreement. Customer's exclusive remedy under Manufacturer's
Warranty shall be as provided therein and shall lie exclusively against and
be obtainable only from the Manufacturer, and Customer expressly agrees that
it shall have no claim or cause of action against Vendor In the event the
Manufacturer Is for any reason unwilling or unable to perform under the terms
of Manufacturer's Warranty.
7.4 LIMITATION OF LIABILITY. Customer expressly agrees that
Vendor's responsibilities in the event of its breach of the warranties
contained in paragraph 7.1 of this agreement are as set forth in said
paragraph. Vendors liability for damages, regardless of the form of action
shall not exceed the purchase Price set forth in Appendix A to this agreement
and shall arise only if the remedies set forth in paragraph 7.1 are not
fulfilled by Vendor. Customer further agrees that Vendor will not be liable
for any lost profits, or for any claim or demand against Customer by any
other party. IN NO EVENT WILL VENDOR BE LIABLE FOR CONSEQUENTIAL DAMAGES EVEN
IF VENDOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. No action,
regardless of form, arising out of the transactions under this agreement, may
be brought by either party more than one (I ) year after the cause of action
has accrued. except that an action for non-payment may be brought within one
(1) year after the date of the last payment.
THE CUSTOMER'S REMEDIES SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE.
VIII. DEFAULT
8.1 REMEDY. Upon the occurrence of an event of default, as
hereinafter defined, by Customer, if the Equipment has theretofore been
delivered, Vendor may recover, together with any included damages, any unpaid
portion of the purchase price of the Equipment as specified in Appendix A
hereto. If the Equipment has not been delivered, in which event Vendor may
withhold delivery of such Equipment, or if the Equipment is returned to
Vendor Vendors election pursuant to Section IV, Vendor shall resell the
Equipment. Upon such resale, Vendor shall recover from Customer the
difference between the unpaid portion of the purchase price, as specified in
Appendix A, and the resale price, together with any incidental damages,
including expenses of resale, sustained by Vendor by reason of Customers
breach. If the resale price exceeds the unpaid portion of the purchase price
and Vendors incidental damages, Vendor shall remit the excess to Customer.
8.2 EVENTS OF DEFAULT. As utilized in this agreement, an
event of default is defined as any of the following:
(A) Customer's failure to pay any amounts required to be Paid to
Vendor under this agreement on a timely basis;
(B) Until the purchase price has been paid in full, any attempt by
Customer to assign, sell, mortgage, or otherwise convey the Equipment;
(C) Prior to the payment in full of the purchase price, Customer
causing or permitting any encumbrance, of any nature whatsoever, to attach to
Customers interest in the Equipment in favor of any person or entity other
than Vendor;
(D) The entry of any order for relief under any provision of the
federal bankruptcy code in any bankruptcy proceedings initiated by or against
Customer or
(E) Customers breach of any of the terms or conditions of this
agreement.
IX. GENERAL
9.1 TITLES. Titles and paragraph headings are for reference
purposes only and are not to be considered a part of this agreement.
9.2 FORCE MAJEURE. No party shall be liable for delay in
performance hereunder due to causes beyond its control, including but not
limited to acts of God, fires, strikes, delinquencies of suppers,
intervention of any governmental authority or acts of war, and each party
shall take steps to minimize any such delay.
9.3 WAIVER. No waiver of any breach of any provision of this
agreement shall constitute a waiver of any prior, concurrent or subsequent
breach of the same or any other provisions hereof and no waiver snail be
effective unless made in writing and signed by an authorized representative
of the party to be charged therewith.
9.4 SEVERABILITY. In the event that any provision of this agreement
shall be illegal or otherwise unenforceable, such provision snail be severed
from this agreement and the entire agreement snail not fail on account
thereof, the balance of the agreement continuing in full force and effect.
9.5 NOTICES. Any notice which either party hereto is required or
permitted to give hereunder shall be addressed to the party to be charged
therewith at the address set forth below and shall be given by certified or
registered mail. Any such notice shall be agreement given on the date of
deposit in the mail.
9.6 ENTIRE AGREEMENT. THE PARTIES HERETO ACKNOWLEDGE THAT EACH HAS
READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS, THE
PARTIES FURTHER AGREE THAT THIS AGREEMENT AND ANY MODIFICATIONS MADE PURSUANT
TO IT CONSTITUTE THE COMPLETE AND EXCLUSIVE WRITTEN EXPRESSION OF THE TERMS
OF THE AGREEMENT BETWEEN THE PARTIES, AND SUPERSEDE ALL PRIOR CR
COI~TEMPORANEOUS PROPOSALS, ORAL OR WRITTEN, UNDERSTANDINGS, REPRESENTATIONS,
CONDITICNS, WARRANTIES, COVENANTS, AND ALL OTHER COMMUNICATIONS BETWEEN THE
PARTIES RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT. THE PARTIES FURTHER
AGREE THAT THIS AGREEMENT MAY NOT IN ANY WAY BE EXPLAINED OR SUPPLEMENTED BY
A PRICR OR EXISTING COURSE OF DEALINGS BETWEEN THE PARTIES, BY ANY USAGE OF
TRADE OR CUSTOM, OR BY ANY PRIOR PERFORMANCE BETWEEN THE PARTIES PURSUANT TO
THIS AGREEMENT OR OTHERWISE. IN THE EVENT CUSTOMER ISSUES A PURCHASE ORDER OR
OTHER INSTRUMENT COVERING THE EQUIPMENT HEREIN SPECIFIED, IT IS UNDERSTOOD
AND AGREED THAT SUCH PURCHASE ORDER OR OTHER INSTRUMENT IS FOR CUSTOMER'S
INTERNAL USE AND PURPOSES ONLY AND SHALL IN NO WAY AFFECT ANY OF THE TERMS.
AND CONDITIONS OF THIS AGREEMENT.
9.7 GOVERNING LAW. This agreement is accepted in the State of
Nebraska, and shall be enforced in accordance with and governed by the laws
of the State of Nebraska.
9.8 CHOICE OF FORUM. Any action arising out of or related to this
agreement or the transaction herein described, whether at law or in equity,
may be instituted in and litigated in the state or federal courts of the
State of Nebraska. In accordance herewith, the parties hereto submit to the
jurisdiction of the courts of said state. Any party being not a resident of
Nebraska at the time of suit hereby appoints the Secretary of State of
Nebraska as its agent for receipt of service of process.
9.9 ATTORNEY'S FEES. In the event that any action or proceeding is
brought in connection with this agreement the prevailing party therein shall
be entitled to recover its costs and reasonable attorneys fees.
9.10 EFFECTIVE DATE. This agreement shall be effective on the date
accepted and executed by an authorized representative of Vendor.
CUSTOMER:
POINTE FINANCIAL CORPORATION
Signature: /s/
Name: C. DARYL HOLLIS
Title: SENIOR VICE PRESIDENT
Address: 21845 Powerline Road
Boca Raton, FL 33433
Date: AUGUST 17, 1995
VENDOR:
INFORMATION TECHNOLOGY, INC.
Signature: /s/
Name: Michael K. Young
Title: Vice President
Address: 1345 Old Cheney Road
Lincoln, NE 68512
Date Accepted: 11/14/95
APPENDIX A
EQUIPMENT AND TERMS
1. MANUFACTURER. The Manufacturer of the Equipment subject to this
agreement is: InterVoice, Inc.
2. PURCHASE PRICE: The purchase price for the Equipment is $32,290.00. 100%
thereof shall be payable upon execution of this agreement, the balance
upon delivery of the Equipment.
3. EQUIPMENT. The Equipment subject to this agreement consists of the
following:
<TABLE>
<CAPTION>
QTY STYLE NUMBER DESCRIPTION UNIT PRICE TOTAL
<S> <C> <C> <C> <C>
1 25.27.04 4 Port Analog System $23,500.00 $23,500.00
1 22.15.20 Unisys TDI Interface 5,200.00 5,200.00
1 21.71.11 Fax Interface 2,800.00 2,800.00
1 21.97.10 On-Site Installation 790.00 790.00
TOTAL: $32,290.00
</TABLE>
MKT303/0595
(LOGO)
INFORMATION TECHNOLOGY INC.
PRODUCT LICENSE AGREEMENT
Agreement made between Information Technology, Inc. (the "Vendor"),
and the "Customer" identified below.
I. LICENSED PRODUCT
1.1 LICENSE. Vendor grants to Customer and Customer accepts from
Vendor a non-exclusive and nontransferable license to use the products
identified in Appendix A (the "Product") under the terms set forth in this
agreement. The license herein granted shall commence upon the date of
delivery of the Product and shall remain in effect for so long as Vendor's
warranties set forth in Article V remain in effect.
1.2 PROPRIETARY NATURE OF PRODUCT AND TITLE. The Product and any
operations manuals, Instructions, and other documents or written materials
provided to Customer as instruction in the use of the Product (the
"Documentation") are acknowledged by Customer to be and contain Vendors
proprietary information and trade secrets, whether or not any portion thereof
Is or may be validly copyrighted or patented, acknowledged to be protected by
civil and criminal law, and acknowledged to be of great value to Vendor.
Except as specifically licensed under this agreement, title and all ownership
rights to the Product and the Documentation remain with Vendor. Customer
shall retain or affix such evidences of ownership and proprietary notices as
Vendor may reasonably request. This paragraph shall survive the term or
termination of this agreement.
1.3 USE OF PRODUCT. The Product may be used only for, by and on
behalf of Customer and only in connection with Customers business operations.
This license Is granted only for use at a single location Identified in
Appendix A and upon a single computer system (CPU) identified in Appendix A
and may not be used upon any other computer or at any other location except
as provided under Paragraph 1.4.
1.4 BACKUP AND EMERGENCY USE. In the event Customer is unable to
use the Product at the location identified in Appendix A due to an emergency,
or to test emergency procedures, Vendor grants to Customer the right to use
the Product at a location other than the location defined in Appendix A. Any
such use shall be subject to all other restrictions of this agreement and
shall continue only so long as the condition giving rise to such use
continues. Prior to commencing such use, if possible, and in any event within
forty-eight (48) hours of such use, Customer shall give Vendor written notice
of the circumstance, location and the expected length of such use. Failure to
give notice shall nullify Customers right of emergency use, as herein
granted.
1.5 ASSIGNMENT. Customer rights under this agreement and in and to
the Product may not be assigned, licensed, sublicensed, pledged, or otherwise
transferred voluntarily, by operation of law or otherwise without Vendor's
prior written consent, and any such prohibited assignment shall be null and
void.
II. CONSIDERATION
2.1 LICENSE FEE. In consideration of the license of the Product
granted under this agreement, Customer shall pay to Vendor the license fee
specified in Appendix A. Such license fee does not include, except as
expressly provided in this agreement or Appendix A hereto, Installation or
maintenance of the Product, data base conversion, media, transportation
charges, or taxes, all of which costs and taxes shall be the obligation of
Customer.
2.2 MANNER OF PAYMENT. The license fee listed in Appendix
A shall be payable In the following manner
(A) A percentage of the license fee, as specified in Appendix A,
upon execution of this license agreement by Customer.
(B) The balance, including any applicable taxes, upon delivery of
the Product by Vendor to Customer.
Invoices respecting the license fee shall be rendered in accordance with the
above payment schedule and are payable to Vendor at Vendor's address set
forth below within ten (110) days of receipt.
2.3 TAXES. In addition to the license fee payable hereunder,
Customer shall pay all taxes (including, without limitation, sales, use,
privilege, ad valorem or excise taxes) and customs duties paid or now or
hereafter payable, however designated, levied or based on amounts payable to
Vendor hereunder or on Customers use or possession of the Product under this
agreement or upon the presence of the Product at the location identified in
Appendix A, but exclusive of federal, state and local taxes based on Vendors
net Income. Customer shall not deduct from payments to Vendor any amounts
paid or payable to third parties for customs duties or taxes, however
designated.
2.4 CURRENCY. The purchase price and any other charges arising
under this agreement snail be Invoiced and be payable in U. S. Dollars.
2.5 LATE PAYMENT. Customer shall pay a late payment charge of one
and one-half percent (11 1/2%) per month, or the maximum late payment charge
permitted by applicable law, whichever is less, on any amount payable by
Customer under this Agreement and not paid when due. Said late payment charge
shall be applied for each calendar month (or fraction thereof) that such
payment is not made following its due date.
2.6 SECURITY. Vendor reserves and Customer grants to Vendor a
security interest in the rights of Customer for use of the Product and in the
Documentation as security for the performance by Customer of its obligations
hereunder including, but not limited to, payment of the license fee set forth
In Appendix A. A copy of this agreement may be flied in appropriate filing
offices at any time after signature by Customer as a financing statement or
Vendor may require and Customer shall execute a separate financing statement
for purposes of perfecting Vendor's security interest granted pursuant to the
provisions of this paragraph.
III. DELIVERY, TRAINING AND OPERATION
3.1 DELIVERY. Vendor shall deliver the Product and Customer shall
accept delivery of the Product at Customers address set forth below. Unless
delayed, as hereinafter provided for, delivery shall be completed within one
(1) year of the date accepted by Vendor.
3.2 DELIVERY DELAYS. In the event Customer requests delay of
delivery, Vendor shall not be obligated to effect delivery of the Product
except upon thirty (30) days written notice by Customer to Vendor. If delay
In delivery is due to any cause beyond the control of Vendor, the date upon
which delivery is to be completed shall be extended by the number of days of
such delay.
3.3 TRAINING. Classes in the operation of the Product are available
at the offices of Vendor, an a regularly scheduled basis at Vendors normal
rates with respect thereto. All travel, meal and lodging expenses of Customer
in connection with such training shall be borne by Customer. On-site training
or assistance will be available solely at Vendor's discretion and will be
charged to Customer at Vendor's normal rates together with reasonable
expenses for travel, meals, lodging and local transportation.
3.4 ASSISTANCE BY CUSTOMER. Customer shall provide reasonable
assistance and cooperation to Vendor In preparation of the Product and the
delivery or installation thereof. Such assistance and cooperation shall
Include, as appropriate, reasonable access to Customer's facility and to
Customers records, as necessary.
3.5 DOCUMENTATION. Operations manuals In respect to the Product
will be delivered to Customer prior to or contemporaneously with the delivery
of the Product.
3.6 RISK OF LOSS. If the Product or the Documentation is lost or
damaged, In whole or In part, during shipment, Vendor will replace said
Product or Documentation at no additional charge to Customer. Upon delivery
In good condition of the Product and the Documentation, Customer shad be
responsible therefor and bear the risk of loss for said Product and
Documentation.
3.7 INSTALLATION ASSISTANCE. Vendor may, at Its sole discretion,
assist Customer in any required installation of the Product at Vendors normal
charges for such assistance. Expenses, including but not limited to computer
time, travel, meals, lodging and local transportation incurred in connection
therewith, shall be borne by Customer. In no event shall Vendor be liable to
Customer for loss of profits, consequential, incidental. indirect or special
damages arising from Vendor's efforts to assist in such installation. Vendor
agrees to treat Customer's confidential business with the same security as it
would its own.
3.8 OPERATION. Customer acknowledges and agrees that ft is
exclusively responsible for the operation, supervision, management and
control of the Product, including, but not limited to, providing adequate
training for its personnel, instituting appropriate security procedures, and
implementing reasonable procedures to examine and verify all output before
use. Vendor shall have no responsibility or liability for Customers selection
or use of the Product or any associated equipment.
3.9 CUSTOMER OBLIGATIONS. In order to maintain the continuing
integrity and proper operation of the Product, Customer agrees to implement,
in the manner instructed by Vendor, each error correction and each
enhancement and improvement provided to Customer by Vendor. Customers failure
to do so shall relieve Vendor of any responsibility or liability whatsoever
for any failure or malfunction of the Product as modified by a subsequent
correction or improvement, but in no such event shall Customer be relieved of
the responsibility for payment of fees and charges otherwise properly
invoiced during the term hereof. If requested by Vendor, Customer agrees to
provide written documentation and details to Vendor to substantiate problems
and to assist Vendor in the identification and detection of problems, errors
and malfunctions; and Customer agrees that Vendor shall have no obligation or
liability for said problems until it has received such documentation and
details from Customer.
IV. VENDOR'S PROPRIETARY RIGHTS
4.1 NON-DISCLOSURE. Customer shall take all reasonable steps
necessary to ensure that neither the Product nor the Documentation, nor any
portion thereof, on magnetic tape or disk or in any other form, is made
available or disclosed by Customer or any of its agents or employees to any
other person. firm or corporation. Customer may disclose relevant aspects of
the Product and Documentation to its employees and agents to the extent such
disclosure is reasonably necessary to Customer's use of the Product,
provided, however, Customer agrees that it will cause all persons permitted
such access to the Product and the Documentation to observe and perform the
foregoing non- disclosure covenant, and that ft will advise Vendor of the
procedures employed for this purpose. Customer shall hold Vendor harmless
against any loss, cost, expense, claim or liability, including reasonable
attorney's fees, resulting from Customer's breach of this non-disclosure
obligation. This paragraph shall survive the term or termination of this
agreement.
4.2 COPIES. Customer agrees that while the Product and the
Documentation are in its custody and possession, it will not (a) copy or
duplicate or permit anyone else to copy or duplicate any of the Product,
Documentation or Information furnished by Vendor, or (b) create or attempt to
create, or permit others to create or attempt to create, by reverse
engineering or otherwise, the Product, the Documentation or other information
made available under this agreement or otherwise, (whether oral, written,
tangible or intangible). Notwithstanding the foregoing, Customer may make and
retain two (2) copies of the Product, Including all enhancements and changes
hereto, only for use in emergencies or to test emergency procedures and may
copy for Its own use and at its own expense the Documentation, but shall
advise Vendor of the specific item copied, the number of copies made and
their distribution. The original and any copies in whole or In part of the
Product or Documentation which are made pursuant to this provision shall be
the exclusive property of Vendor and shall be fully subject to the provisions
of this agreement. Customer agrees to retain or place Vendors proprietary
notice on any copies or partial copies made pursuant to this provision.
4.3 UNAUTHORIZED ACTS. Customer agrees to notify Vendor Immediately
of the unauthorized possession, use, or knowledge of the Product,
Documentation or any information made available to Customer pursuant to this
agreement, by any person or organization not authorized by this agreement to
have such possession. use or knowledge. Customer will, thereafter. fully
cooperate with Vendor in the protection and redress of VendorOs proprietary
rights. Customers compliance with this paragraph shall not, however, be
construed in any way as a waiver of Vendor's rights against Customer for
Customers negligent or intentional harm to VendorOs proprietary rights. or
for breach of Vendor's contractual rights.
4.4 INSPECTION. To assist Vendor in the protection of its
proprietary rights, Customer shall permit representatives of Vendor to
inspect the Product and Documentation and their use, including inspection of
any location in which they are being used or kept at all reasonable times.
4.5 INJUNCTIVE RELIEF. If Customer attempts to use, copy, license,
sublicense, sell or otherwise convey or to disclose the Product or
Documentation, in any manner contrary to the terms of this agreement or in
derogation of Vendor's proprietary rights, whether such rights are explicitly
herein stated, determined by law or otherwise, Vendor shall have, in addition
to any other remedies available to it, the right to injunctive relief
enjoining such actions, Customer hereby acknowledging that other remedies are
inadequate.
V. MAINTENANCE, ENHANCEMENTS AND WARRANTIES
5.1 PRODUCT WARRANTY. Vendor warrants that at delivery, the Product
will perform in accordance with the then current Documentation provided
Customer, and further warrants that it has the right to authorize the use of
the Product under this agreement. Vendors obligation and liability under this
paragraph shall, however, be limited to the replacement and correction of the
Product so that it will so perform, or to obtaining any authorization
necessary to make effective the grant of license to Customer of the use of
the Product.
5.2 PATENT INFRINGEMENTS. Vendor shall hold harmless and defend
Customer from any claim or any suit based on any claim that the use of the
Product by Customer under this agreement infringes on any patent, copyright,
trademark, or other proprietary right of any third party, provided that
Customer gives Vendor prompt and written notice of any such claim or suit and
permits Vendor to control the defense thereof.
5.3 WARRANTY DISCLAIMER- THE FOREGOING WARRANTIES ARE IN LIEU OF
ALL OTHER WARRANTIES AND NO OTHER WARRANTY IS EXPRESSED OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE.
5.4 RENEWAL OF WARRANTIES. Unless sooner terminated pursuant to the
provisions of paragraph 5.6, the warranties granted by paragraphs 5.1 and 5.2
(subject, however, to all limitations and disclaimers contained within this
agreement) and the right to any enhancements or corrections developed by
Vendor under paragraph 5.5, shall be subject to extension for successive
one-year warranty periods commencing on the date of the delivery of the
Product. Each one year extension (the "Warranty Period") shall be deemed to
automatically occur unless notice is given by either Customer or Vendor of an
election not to so extend, such notice to be given on or prior to the
sixtieth (60th) day preceding the Warranty Period. Any such extension shall
in no event be effective unless Customer shall have paid to Vendor on or
prior to the beginning of the Warranty Period its then current annual
maintenance fee.
5.5 ENHANCEMENTS AND CHANGES. Vendor shall provide Customer with
all enhancements and changes to the Product designed or developed by Vendor
and released to its other customers during the Warranty Period. Any change or
enhancement to the Product, whether developed or designed by Vendor or by
Customer shall be and remain the property of Vendor, provided, however, that
Customer shall be entitled to a perpetual license without additional license
fee of any enhancements or corrections developed by Customer. Vendor reserves
the right to make changes In operating procedures, program language, file
structures, access techniques, general purpose programs, data storage
requirements, Input and output formats, report formats, types of hardware
supported, throughput, and other related programming and documentation
improvements required to maintain the Product current. As part of these
services, Vendor will provide Customer the changes with written instructions
concerning implementation. It is understood and agreed that Vendor provision
of improvements and enhancements under this paragraph does not include
providing to Customer new product which may result from rewriting the
Product. Vendor alone shall determine whether the work product of Vendor
constitutes new product as a result of a complete rewrite (which is not
provided to Customer hereunder) or an improvement or enhancement of the
Product (which will be provided to Customer).
5.6 TERMINATION OF WARRANTIES. The warranties expressed in
paragraphs 5.1 and 5.2 and Customer's rights under paragraph 5.5 shall
immediately terminate if the Product is revised, changed, enhanced, modified
or maintained by any one other than Vendor without the prior specific
direction or written approval of Vendor.
5.7 LIMITATION OF LIABILITY. Customer expressly agrees that
Vendor's responsibilities in the event of its breach of the warranties
contained in paragraphs 5.1 and 5.2 are as set forth in said paragraphs.
Vendors liability for damages, including but not limited to liability for
patent or copyright infringement, regardless of the form of action, shall not
exceed the license fee set forth in Appendix A to this agreement and shall
arise only if the remedies provided in paragraph 5.1 and 5.2 are not
fulfilled by Vendor. Customer further agrees that Vendor will not be liable
for any lost profits, or for any claim or demand against Customer by any
other party, except a claim for patent or copyright infringement as provided
herein. IN NO EVENT WILL VENDOR BE LIABLE FOR CONSEQUENTIAL DAMAGES EVEN IF
VENDOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. No action,
regardless of form, arising out of this agreement, may be brought by either
party more than one (1 ) year after the cause of action has accrued, except
that an action for non-payment may be brought within one (1) year after the
date of last payment. No action by Vendor for wrongful disclosure or use of
the Product or Documentation shall be deemed to have accrued until Vendor
receives actual notice of such wrongful disclosure or use.
THE CUSTOMER'S REMEDIES SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE.
VI. DEFAULT
6.1 TERMINATION. Vendor may terminate this agreement and the
license granted hereunder in the event of a default by Customer unless
Customer shall have cured the event of default, as hereinafter defined,
within twenty (20) days after notice of such event of default given by Vendor
to Customer. This agreement and the license granted hereunder shall
automatically terminate if Vendors warranties are not renewed as contemplated
in paragraph 5.4 hereof. Upon any termination of this agreement, Customer
shall deliver to Vendor the Product, the Documentation and all copies thereof
and shall also warrant in writing that all copies have been returned to
Vendor or destroyed.
6.2 EVENTS OF DEFAULT. An event of default is defined as
any of the following:
(A) Customer's failure to pay any amounts required to be paid to
Vendor under this agreement on a timely basis;
(B) Any attempt (i) to assign, sell, mortgage, lease, sublease,
license, sublicense or otherwise convey, (ii) to grant any interest in, right
of use of, or access to, or (iii) to otherwise disclose the Product or the
Documentation, except, in any such case, as herein expressly permitted or as
consented to in writing by the Vendor,
(C) Causing or permitting any encumbrance, of any nature whatsoever
to attach to Customer's interest in the Product in favor of any person or
entity other than Vendor:
(D) The entry of any order for relief under any provision of the
federal bankruptcy code in any bankruptcy proceedings initiated by or against
Customer, or
(E) Customer's breach of any of the terms or conditions of this
agreement.
6.3 DAMAGES. Upon the occurrence of an event of default without
cure within the period of time above-provided, all license or other fees
payable to Vendor under this agreement shall without notice or demand by
Vendor become immediately due and payable as liquidated damages- This
provision for liquidated damages shall not be regarded as a waiver by Vendor
of any other rights to which it may be entitled in the event of Customer's
default, but rather, such remedy shall be an addition to any other remedy
lawfully available to Vendor
VII. GENERAL
7.1 TITLES. Titles and paragraph headings are for reference
purposes only and are not to be considered a part of this agreement.
7 2 FORCE MAJEURE. No party shall be liable for delay in
performance hereunder due to causes beyond its control, including but not
limited to acts of God, fires, strikes, delinquencies of supplier's pliers,
acts of war or intervention by any governmental authority, and each party
snail take steps to minimize any such delay.
7.3 WAIVER. No waiver of any breach of any provision of this
agreement snail constitute a waiver of any prior, concurrent or subsequent
breach of the same or any other provisions hereof and no waiver shall be
effective unless made in writing and signed by an authorized representative
of the Party to be charged therewith.
7.4 SEVERABILITY. In the event that any provision of this agreement
shall be illegal or otherwise unenforceable, such provision shall be severed
from this agreement and the entire agreement shall not fail on account
thereof, the balance of the agreement continuing in full force and effect.
7.5 NOTICES. Any notice which either party hereto is required or
permitted to give hereunder shall be addressed to the party to be charged
therewith at the address set forth below and snail be given by certified or
registered mail. Any such notice shall be deemed given on the date of deposit
in the mail.
7.6 ENTIRE AGREEMENT. THE PARTIES HERETO ACKNOWLEDGE THAT EACH HAS
READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS. THE
PARTIES FURTHER AGREE THAT THIS AGREEMENT AND ANY MODIFICATIONS MADE PURSUANT
TO IT CONSTITUTE THE COMPLETE AND EXCLUSIVE WRITT EN EXPRESSION OF THE TERMS
OF THE AGREEMENT BETWEEN THE PARTIES, AND SUPERSEDE ALL PRIOR OR
CONTEMPORANEOUS PROPOSALS, CRAL OR WRITTEN, UNDERSTANDINGS, REPRESENTATIONS,
CONDITIONS, WARRANTIES, COVENANTS, AND ALL OTHER COMMUNICATIONS BETWEEN THE
PARTIES RELATING TO THE SUBJECT MAT7ER OF THIS AGREEMENT. THE PARTIES FURTHER
AGREE THAT THIS AGREEMENT MAY NOT IN ANY WAY BE EXPLAINED OR SUPPLEMENTED BY
A PRIOR OR EXISTING COURSE OF DEALINGS BETWEEN THE PARTIES, BY ANY USAGE OF
TRADE OR CUSTOM, OR BY ANY PRIOR PERFORMANCE BETWEEN THE PARTIES PURSUANT TO
THIS AGREEMENT OR OTHERWISE. IN THE EVENT CUSTOMER ISSUES A PURCHASE ORDER OR
OTHER INSTRUMENT COVERING THE SERVICES OR DOCUMENTATION HEREIN SPECIFIED, IT
IS UNDERSTOOD AND AGREED THAT SUCH PURCHASE ORDER OR OTHER INSTRUMENT IS FOR
CUSTOMER'S INTERNAL USE AND PURPOSES ONLY AND SHALL IN NO WAY AFFECT ANY OF
THE TERMS AND CONDITIONS OF THIS AGREEMENT.
7.7 GOVERNING LAW. This agreement is accepted in the State of
Nebraska, and shall be enforced in accordance with and governed by the laws
of the State of Nebraska.
7.8 CHOICE OF FORUM. Any action arising out of or related to this
agreement or the transaction herein described, whether at law or in equity,
may be instituted in and litigated in the state or federal courts of the
State of Nebraska. In accordance herewith, the parties hereto submit to the
jurisdiction of the courts of said state. Any party being not a resident of
Nebraska at the time of suit hereby appoints the Secretary of State of
Nebraska as its agent for receipt of service of process.
7.9 ATTORNEY'S FEES. In the event that any action or proceeding is
brought in connection with this agreement the prevailing party therein shall
be entitled to recover its costs and reasonable attorneys fees.
7.10 EFFECTIVE DATE. This agreement shall be effective on the date
accepted and executed by an authorized representative of Vendor.
CUSTOMER:
POINTE FINANCIAL CORPORATION
Signature: /s/
Name: C. DARYL HOLLIS
Title: SENIOR VICE PRESIDENT
Address: 21845 Powerline Road
Boca Raton, FL 33433
Date: AUGUST 17, 1995
VENDOR:
INFORMATION TECHNOLOGY, INC.
Signature: /s/
Name: Donald F. Dillon
Title: President
Address: 1345 Old Cheney Road
Lincoln, NE 68512
Date Accepted: August 23, 1995
APPENDIX A
DUE UPON EXECUTION 30%
COMPUTER SYSTEM (CPU) N/A (A99)
LOCATION WHERE THE PRODUCT(S) WILL BE USED:
Pointe Financial Corporation
21845 Powerline Road
Boca Raton, FL 33433
<TABLE>
<CAPTION>
PRODUCT(S) AND LICENSE FEE(S):
<S> <C> <C>
506-003 Plus Utilities & Authoring Tools (1 to 5 Sites) $10,000
TOTAL: $10,000
</TABLE>
MKT307/0195
(LOGO)
INFORMATION TECHNOLOGY INC.
PRODUCT LICENSE AGREEMENT
Agreement made between Information Technology, Inc. (the "Vendor"),
and the "Customer, identified below.
I. LICENSED PRODUCT
1.1 LICENSE. Vendor grants to Customer and Customer accepts from
Vendor a nonexclusive and nontransferable license to use the products
identified in Appendix A (the "Product") under the terms set forth in this
agreement. The license herein granted shall commence upon the date of
delivery of the Product and shall remain in effect for so long as Vendor's
warranties set forth in Article V remain in effect.
1.2 PROPRIETARY NATURE OF PRODUCT AND TITLE. The Product and any
operations manuals, instructions, and other documents or written materials
provided to Customer as instruction in the use of the Product (the
"Documentation") are acknowledged by Customer to be and contain Vendor's
proprietary information and trade secrets, whether or not any pardon thereof
is or may be validly copyrighted or patented, acknowledged to be protected by
civil and criminal law, and acknowledged to be of great value to Vendor.
Except as specifically licensed under this agreement, title and ail ownership
rights to the Product and the Documentation remain with Vendor. Customer
shall retain or affix such evidences of ownership and proprietary notices as
Vendor may reasonably request. This paragraph or shall survive the term or
termination of this agreement.
1.3 USE OF PRODUCT. The Product may be used only for, by and on
behalf of Customer and only in connection with Customers business operations.
This license is granted only for use at a single location identified in
Appendix A and upon a single computer system (CPU) Identified in Appendix A
and may not be used upon any other computer or at any other location except
as provided under Paragraph 1.4.
1.4 BACKUP AND EMERGENCY USE. In the event Customer is unable to
use the Product at the location identified in Appendix A due to an emergency,
or to test emergency procedures, Vendor grants to Customer the right to use
the Product at a location other than the location defined in Appendix A. Any
such use shall be subject to ail other restrictions of this agreement and
shall continue only so long as the condition giving rise to such use
continues. Prior to commencing such use, if possible, and in any event within
forty-eight (48) hours of such use, Customer shall give Vendor written notice
of the circumstance, location and the expected length of such use. Failure to
give notice shall nullify Customer's right of emergency use, as herein
granted.
1.5 ASSIGNMENT. Customer rights under this agreement and in and to
the Product may not be assigned, licensed, sublicensed, pledged, or otherwise
transferred voluntarily, by operation of law or otherwise without VendorOs
prior written consent, and any such prohibited assignment shall be null and
void.
II. CONSIDERATION
2.1 LICENSE FEE. In consideration of the license of the Product
granted under this agreement, Customer shall pay to Vendor the license fee
specified in Appendix A. Such license fee does not include, except as
expressly provided in this agreement or Appendix A hereto, Installation or
maintenance of the Product, data base conversion, media, transportation
charges, or taxes, all of which costs and taxes shall be the obligation of
Customer.
2.2 MANNER OF PAYMENT. The license fee listed In Appendix(A
shall be payable in the following manner
(A) A percentage of the license fee, as specified In Appendix A,
upon execution of this license agreement by Customer.
(B) The balance, including any applicable taxes, upon delivery of
the Product by Vendor to Customer.
Invoices respecting the license fee shall be rendered In accordance with the
above payment schedule and are payable to Vendor at Vendors address set forth
below within ten (10) days of receipt.
2.3 TAXES. In addition to the license fee payable hereunder,
Customer shall pay all taxes (including, without limitation, sales, use,
privilege, ad valorem or excise taxes) and Customs duties paid or now or
hereafter payable, however designated, levied or based On amounts payable to
Vendor hereunder or an Customers use or possession of the Product under this
agreement or upon the presence of the Product at the location identified in
Appendix A, but exclusive of federal, state and local taxes based on Vendor's
net income. Customer shall not deduct from payments to Vendor any amounts
paid or payable to third parties for customs duties or taxes, however
designated.
2.4 CURRENCY. The purchase price and any other charges arising
under this agreement shall be invoiced and be payable in U. S. Dollars.
2.5 LATE PAYMENT. Customer shall pay a late payment charge of one
and one-half percent (1 112%) per month, or the maximum late payment charge
permitted by applicable law, whichever is less, on any amount payable by
Customer under this Agreement and not paid when due. Said late payment charge
shall be applied for each calendar month (or fraction thereon that such
payment is not made following Its due date.
2.6 SECURITY. Vendor reserves and Customer grants to Vendor a
security Interest in the rights of Customer for use of the Product and in the
Documentation as security for the performance by Customer of its obligations
hereunder including, but not limited to, payment of the license fee set forth
in Appendix A. A copy of this agreement may be filed in appropriate filing
offices at any time after signature by Customer as a financial statement or
Vendor may require and Customer shall execute a separate financing statement
for purposes of perfecting Vendors security interest granted pursuant to the
provisions of this paragraph.
III. DELIVERY, TFLAINING AND OPERATION
3.1 DELIVERY. Vendor shall deliver the Product and Customer shall
accept delivery of the Product at Customer's address set forth below. Unless
delayed, as hereinafter provided for, delivery shall be completed within one
(1) year of the date accepted by Vendor.
3.2 DEL1VERY DELAYS. In the event Customer requests delay of
delivery, Vendor shall not be obligated to effect delivery of the Product
except upon thirty (30) days written notice by Customer to Vendor. If delay
in delivery is due to any cause beyond the control of Vendor, the date upon
which delivery Is to be completed shall be extended by the number of days of
such delay.
3.3 TRAINING. Classes in the operation of the Product are available
at the offices of Vendor, on a regularly scheduled basis at Vendors normal
rates with respect thereto. All travel, meal and lodging expenses of Customer
in connection with such training shall be borne by Customer. On-site training
or assistance will be available solely at VendorOs discretion and will be
charged to Customer at Vendors normal rates together with reasonable expenses
for travel, meals, lodging and local transportation.
3.4 ASSISTANCE BY CUSTOMER. Customer shall provide reasonable assistance and
cooperation to Vendor In preparation of the Product and the delivery or
installation thereof. Such assistance and cooperation shall Include, as
appropriate, reasonable access to Customers facility and to Customer's
records, as necessary.
3.5 DOCUMENTATION. Operations manuals in respect to the Product
will be delivered to Customer prior to or contemporaneously with the delivery
of the Product.
3.6 RISK OF LOSS. If the Product or the Documentation is lost or
damaged, In whole or in part, during shipment, Vendor will replace said
Product or Documentation at no additional charge to Customer. Upon delivery
In good condition of the Product and the Documentation, Customer shall be
responsible therefor and bear the risk of loss for said Product and
Documentation.
3.7 INSTALLATION ASSISTANCE. Vendor may, at its sole discretion,
assist Customer in any required installation of the Product at Vendors normal
charges for such assistance. Expenses, including but not limited to computer
time, travel, meals, lodging and local transportation incurred in connection
therewith, shall be borne by Customer. in no event shall Vendor be liable to
Customer for loss of profits, consequential, incidental, indirect or special
damages arising from Vendors efforts to assist in such installation. Vendor
agrees to treat Customer's confidential business with the same security as it
would its own.
3.8 OPERATION. Customer acknowledges and agrees that ft is
exclusively responsible for the operation, supervision, management and
control of the Product, including, but not limited to, providing adequate
training for its personnel, instituting appropriate security procedures, and
implementing reasonable procedures to examine and verify all output before
use. Vendor shall have no responsibility or liability for Customers selection
or use of the Product or any associated equipment.
3.9 CUSTOMER OBLIGATIONS. In order to maintain the continuing
integrity and proper operation of the Product, Customer agrees to implement,
in the manner instructed by Vendor, each error correction and each
enhancement and improvement provided to Customer by Vendor. Customers failure
to do so shall relieve Vendor of any responsibility or liability whatsoever
for any failure or malfunction of the Product as modified by a subsequent
correction or improvement, but in no such event shall Customer be relieved of
the responsibility for payment of fees and charges otherwise properly
invoiced during the term hereof. If requested by Vendor, Customer agrees to
provide written documentation and details to Vendor to substantiate problems
and to assist Vendor in the identification and detection of problems, errors
and malfunctions; and Customer agrees that Vendor shall have no obligation or
liability for said problems until it has received such documentation and
details from Customer.
IV. VENDOR'S PROPRIETARY RIGHTS
4.1 NON-DISCLOSURE. Customer shall take all reasonable steps
necessary to ensure that neither the Product nor the Documentation, nor any
portion thereof, on magnetic tape or disk or in any other form, is made
available or disclosed by Customer or any of its agents or employees to any
other person, firm or corporation. Customer may disclose relevant aspects of
the Product and Documentation to its employees and agents to the extent such
disclosure is reasonably necessary to Customers use of the Product, provided,
however, Customer agrees that it shall cause all persons permitted such
access to the Product and the Documentation to observe and perform the
foregoing non- disclosure covenant, and that it will advise Vendor of the
procedures employed for this purpose. Customer shall hold Vendor harmless
against any loss, cost, expense, claim or liability, including reasonable
attorneys fees, resulting from Customer's breach of this non-disclosure
obligation. This paragraph shall survive the term or termination of this
agreement.
4.2 COPIES. Customer agrees that while the Product and the
Documentation are in its custody and possession, I will not (a) copy or
duplicate or permit anyone else to copy or duplicate any of the Product,
Documentation or Information furnished by Vendor, or (b) create or attempt to
create, or permit others to create or attempt to create, by reverse
engineering or otherwise, the Product, the Documentation or other Information
made available under this agreement or otherwise, (whether oral, written,
tangible or intangible). Notwithstanding the foregoing, Customer may make and
retain two (2) copies of the Product, Including all enhancements and changes
hereto, only for use In emergencies or to test emergency procedures and may
copy for its own use and at its own expense the Documentation, but shall
advise Vendor of the specific Intern copied, the number of copies made and
their distribution. The original and any copies in whole or In part of the
Product or Documentation which are made pursuant to this provision shall be
the expulsive property of Vendor and shall be fully subject to the provisions
of this agreement. Customer agrees to retain or place Vendors proprietary
notice on any copies or partial copies made pursuant to this provision.
4.3 UNAUTHORIZED ACTS. Customer agrees to notify Vendor immediately
of the unauthorized possession, use, or knowledge of the Product,
Documentation or any information made available to Customer pursuant to this
agreement, by any person or organization not authorized by this agreement to
have such possession, use or knowledge. Customer will, thereafter, fully
cooperate with Vendor in the protection and redress of Vendors proprietary
rights. Customer's compliance with this paragraph shall not, however, be
construed in any way as a waiver of Vendor's rights against Customer for
customers negligent or intentional harm to Vendors proprietary rights, or for
breach of Vendor's contractual rights.
4.4 INSPECTION. To assist Vendor in the protection of its
proprietary rights, Customer shall permit representatives of Vendor to
inspect the Product and Documentation and their use, including inspection of
any location in which they are being used or kept at all reasonable times.
4.5 INJUNCTIVE RELIEF. If Customer attempts to use, copy, license,
sublicense, sell or otherwise convey or to disclose the Product or
Documentation, in any manner contrary to the terms of this agreement or in
derogation of Vendor's proprietary rights, whether such rights are explicitly
herein stated, determined by law or otherwise, Vendor shall have, in addition
to any other remedies available to it, the right to injunctive relief
enjoining such actions, Customer hereby acknowledging that other remedies are
inadequate.
V. MAINTENANCE, ENHANCEMENTS AND WARRANTIES
5.1 PRODUCT WARRANTY. Vendor warrants that at delivery, the Product
will perform in accordance with the then current Documentation provided
Customer, and further warrants that A has the right to authorize the use of
the Product under this agreement. Vendors obligation and liability under this
paragraph shall, however, be limited to the replacement and correction of the
Product so that it will so perform, or to obtaining any authorization
necessary to make effective the grant of license to Customer of the use of
the Product.
5.2 PATENT INFRINGEMENTS. Vendor shall hold harmless and defend
Customer from any claim or any suit based on any claim that the use of the
Product by Customer under this agreement infringes on any patent, copyright,
trademark, or other proprietary right of any third party, provided that
Customer gives Vendor prompt and written notice of any such claim or suit and
permits Vendor to control the defense thereof.
5.3 WARRANTY DISCLAIMER. THE FOREGOING WARRANTIES ARE IN LIEU OF
ALL OTHER WARRANTIES AND NO OTHER WARRANTY IS EXPRESSED OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE.
5.4 RENEWAL OF WARRANTIES. Unless sooner terminated pursuant to the
provisions of paragraph 5.6, the warranties granted by paragraphs 5.1 and 5.2
(subject, however, to ail limitations and disclaimers contained within this
agreement) and the right to any enhancements or corrections developed by
Vendor under paragraph 5.5, shall be subject to extension for successive
one-year warranty period commencing on the date of the delivery of the
Product. Each one year extension (the 'Warranty Period") shall be deemed to
automatically occur unless notice is given by either Customer or Vendor of an
election not to so extend, such notice to be given on or prior to the
sixtieth (60) day preceding the Warranty Period. Any such extension shall In
no event be effective unless Customer shall have paid to Vendor on or prior
to the beginning of the Warranty Period its then current annual maintenance
fee.
5.5 ENHANCEMENTS AND CHANGES. Vendor shall provide Customer with
all enhancements and changes to the Product designed or developed by Vendor
and released to Its other customers during the Warranty Period. Any change or
enhancement to the Product, whether developed or designed by Vendor or by
Customer shall be and remain the property of Vendor, provided, however, that
Customer shall be entitled to a perpetual license without additional license
fee of any enhancements or corrections developed by Customer. Vendor reserves
the right to make changes in operating procedures, program language, file
structures, access techniques, general purpose programs, data star-age
requirements, Input and output formats, report formats, types of hardware
supported, throughput, and other related programming and documentation
improvements required to maintain the Product current. As part of these
services, Vendor will provide Customer the changes with written instructions
concerning implementation. It is understood and agreed that Vendor provision
of improvements and enhancements under this paragraph does not include
providing to Customer new product which may result from rewriting the
Product. Vendor alone shall determine whether the work product of Vendor
constitutes new product as a result of a complete rewrite (which is not
provided to Customer hereunder) or an improvement or enhancement of the
Product (which will be provided to Customer).
5.6 TERMINATION OF WARRANTIES. The warranties expressed in
paragraphs 5.1 and 5.2 and Customers rights under paragraph 5.5 shall
immediately terminate if the Product is revised, changed, enhanced, modified
or maintained by any one other than Vendor without the prior specific
direction or written approval of Vendor.
5.7 LIMITATION OF LIABILITY. Customer expressly agrees that
Vendor's responsibilities in the event of its breach of the warranties
contained in paragraphs 5.1 and 5.2 are as set forth in said paragraphs.
Vendor's liability for damages, Including but not limited to liability for
patent or copyright infringement, regardless of the form of action, shall not
exceed the license fee set forth in Appendix A to this agreement and shall
arise only if the remedies provided in paragraphs 5.1 and 5.2 are not
fulfilled by Vendor. Customer further agrees that Vendor *11 not be liable
for any lost profits, or for any claim or demand against Customer by any
other party, except a claim for patent or copyright infringement as provided
herein. IN NO EVENT WILL VENDOR BE LIABLE FOR CONSEQUENTIAL DAMAGES EVEN IF
VENDOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. No action,
regardless of form, arising out of this agreement, may be brought by either
party more than one (1) year after the cause of action has accrued, except
that an action for non-payment may be brought within one (1) year after the
date of last payment. No action by Vendor for wrongful disclosure or use of
the Product or Documentation shall be deemed to have accrued until Vendor
receives actual notice of such wrongful disclosure or use.
THE CUSTOMER'S REMEDIES SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE.
VI. DEFAULT
6.1 TERMINATION. Vendor may terminate this agreement and the
license granted hereunder in the event of a default by Customer unless
Customer shall have cured the event of default, as hereinafter defined,
within twenty (20) days after notice of such event of default given by Vendor
to Customer. This agreement and the license granted hereunder shall
automatically terminate if Vendors warranties are not renewed as contemplated
in paragraph 5.4 hereof, Upon any termination of this agreement, Customer
shall deliver to Vendor the Product, the Documentation and all copies thereof
and shall also warrant in writing that all copies have been returned to
Vendor or destroyed.
6.2 EVENTS OF DEFAULT. An event of default is defined as
any of the following:
(A) Customer's failure to pay any amounts required to be paid to
Vendor under this agreement on a timely basis;
(B) Any attempt (i) to assign, sell, mortgage, lease, sublease,
license, sublicense or otherwise convey, (4) to grant any Interest In, right
of use of, or access to, or (III) to otherwise disclose the Product or the
Documentation, except, in any such case, as herein expressly permitted or as
consented to in writing by the Vendor;
(C) Causing or permitting any encumbrance, of any nature whatsoever
to attach to Customer's interest in the Product In favor of any person or
entity other than Vendor;
(D) The entry of any order for relief under any provision of the
federal bankruptcy code in any bankruptcy proceedings Initiated by or against
Customer or
(E) Customer's breach of any of the terms or conditions of this
agreement.
6.3 DAMAGES. Upon the occurrence of an event of default without
cure within the period of time above-provided, all license or other fees
payable to Vendor under this agreement shall without notice or demand by
Vendor become Immediately due and payable as liquidated damages. This
provision for liquidated damages shall not be regarded as a waiver by Vendor
of any other rights to which it may be entitled in the event of Customers
default, but rather, such remedy shall be an addition to any other remedy
lawfully available to Vendor.
VII. GENERAL
7.1 TITLES. Titles and paragraph headings are for reference
purposes only and shall not to be considered a part of this agreement.
7.2 FORCE MAJEURE. No party shall be liable for delay in
performance hereunder due to causes beyond its control, including but not
limited to acts of God, fires, strikes, delinquencies of suppliers, acts of
war or intervention by any governmental authority, and each party shall take
steps to minimize any such delay.
7.3 WAIVER. No waiver of any breach of any provision of this
agreement shall constitute a waiver of any prior, concurrent or subsequent
breach of the same or any other provisions hereof and no waiver snail be
effective unless made in writing and signed by an authorized representative
of the party to be charged therewith.
7.4 SEVERABILITY. In the event that any provision of this agreement
shall be illegal or otherwise unenforceable, such provision shall be severed
from this agreement and the entire agreement shall not fail an account
thereof, the balance of the agreement continuing in full force and effect.
7.5 NOTICES. Any notice which either party hereto is required or
permitted to give hereunder shall be addressed to the party to be charged
therewith at the address set forth below and shall be given by certified or
registered mail. Any such notice shall be deemed given on the date of deposit
in the mail.
7.6 ENTIRE AGREEMENT. THE PARTIES HERETO ACKNOWLEDGE THAT EACH HAS
READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS. THE
PARTIES FURTHER AGREE THAT THIS AGREEMENT AND ANY MODIFICATIONS MADE PURSUANT
TO IT CONSTITUTE THE COMPLETE AND EXCLUSIVE WRITTEN EXPRESSION OF THE TERMS
OF THE AGREEMENT BETWEEN THE PARTIES, AND SUPERSEDE ALL PRIOR OR
CONTEMPORANEOUS PROPOSALS, ORAL OR WRITTEN, UNDERSTANDINGS, REPRESENTATIONS,
CONDITIONS, WARRANTIES, COVENANTS, AND ALL OTHER COMMUNICATIONS BETWEEN THE
PARTIES RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT. THE PARTIES FURTHER
AGREE THAT THIS AGREEMENT MAY NOT IN ANY WAY BE EXPLAINED OR SUPPLEMENTED BY
A PRIOR OR EXISTING COURSE OF DEALINGS BETWEEN THE PARTIES, BY ANY USAGE OF
TRADE OR CUSTOM, OR BY ANY PRIOR PERFORMANCE BETWEEN THE PARTIES PURSUANT TO
THIS AGREEMENT OR OTHERWISE. IN THE EVENT CUSTOMER ISSUES A PURCHASE ORDER OR
OTHER INSTRUMENT COVERING THE SERVICES OR DOCUMENTATION HEREIN SPECIFIED, IT
IS UNDERSTOOD AND AGREED THAT SUCH PURCHASE ORDER OR OTHER INSTRUMENT IS FOR
CUSTOMER'S INTERNAL USE AND PURPOSES ONLY AND SHALL IN NO WAY AFFECT ANY OF
THE TERMS AND CONDITIONS OF THIS AGREEMENT.
7.7 GOVERNING LAW. This agreement is accepted in the State of
Nebraska, and shall be enforced in accordance with and governed by the lam of
the State of Nebraska.
7.8 CHOICE OF FORUM. Any action arising out of or related to this
agreement or the transaction herein described, whether at law or in equity,
may be instituted in and litigated in the state or federal courts of the
State of Nebraska. In accordance herewith, the parties hereto submit to the
jurisdiction of the courts of said state. Any party being not a resident of
Nebraska at the time of suit hereby appoints the Secretary of State of
Nebraska as Its agent for receipt of service of process.
7.9 ATTORNEY'S FEES. In the event that any action or proceeding is
brought In connection with this agreement the prevailing party therein shall
be entitled to recover its costs and reasonable attorneys fees.
7.10 EFFECTIVE DATE. This agreement shall be effective on the date
accepted and executed by an authorized representative of Vendor.
CUSTOMER:
POINTE FINANCIAL CORPORATION
Signature: /s/
Name: C. DARYL HOLLIS
Title: SENIOR VICE PRESIDENT
Address: 21845 Powerline Road
Boca Raton, FL 33433
Date: AUGUST 17, 1995
VENDOR:
INFORMATION TECHNOLOGY, INC.
Signature: /s/
Name: Donald F. Dillon
Title: President
Address: 1345 Old Cheney Road
Lincoln, NE 68512
Date Accepted: August 23, 1995
APPENDIX A
DUE UPON EXECUTION 30%
COMPUTER SYSTEM (CPU) N/A (A99)
LOCATION WHERE THE PRODUCT(S) WILL BE USED:
Pointe Bank
1 West Flamingo Drive
Pembroke Pines, FL 33027
<TABLE>
<CAPTION>
PRODUCT(S) AND LICENSE FEE(S):
<S> <C> <C>
505-002 Plus Run-Time System (2 Sites) $10,000
506-006 Plus Merge/Delta/Extract/Apply 3,000
507-012 Plus Per Workstation Fee (12 @ $450) 5,400
523-002 Plus SMM Site License (2 @ $650) 1,300
TOTAL: $19,700
</TABLE>
<TABLE>
<CAPTION>
# OF # OF
SITE # LOCATION NAME WORKSTATIONS SITES
<S> <C> <C> <C>
1 Main Office 9 1
1 Aventura 3 1
</TABLE>
MKT307/0195
(LOGO)
INFORMATION TECHNOLOGY INC.
PRODUCT LICENSE AGREEMENT
Agreement made between Information Technology, Inc. (the "Vendor"),
and the "Customer" identified below.
I. LICENSED PRODUCT
1.1 LICENSE. Vendor grants to Customer and Customer accepts from
Vendor a nonexclusive and nontransferable license to use the products
identified In Appendix A (the "Product") under the terms set forth in this
agreement. The license herein granted shall commence upon the date of
delivery of the Product and shall remain in effect for so long as Vendor's
warranties set forth in Article V remain in effect.
1.2 PROPRIETARY NATURE OF PRODUCT AND TITLE. The Product and any
operations manuals, instructions, and other documents or written materials
provided to Customer as instruction in the use of the Product (the
"Documentation") are acknowledged by Customer to be and contain Vendor's
proprietary information and trade secrets, whether or not any portion thereof
is or may be validly copyrighted or patented, acknowledged to be protected by
civil and criminal law, and acknowledged to be of great value to Vendor.
Except as specifically licensed under this agreement, title and ail ownership
rights to the Product and the Documentation remain with Vendor. Customer
shall retain or affix such evidences of ownership and proprietary notices as
Vendor may reasonably request. This paragraph shall survive the term or
termination of this agreement.
1.3 USE OF PRODUCT. The Product may be used only for, by and on
behalf of Customer and only in connection with Customer's business
operations. This license is granted only for use at a single location
identified in Appendix A and upon a single computer system (CPU) identified
in Appendix A and may not be used upon any other computer or at any other
location except as provided under Paragraph 1.4.
1.4 BACKUP AND EMERGENCY USE. In the event Customer is unable to
use the Product at the location identified in Appendix A due to an emergency,
or to test emergency procedures, Vendor grants to Customer the right to use
the Product at a location other than the location defined in Appendix A. Any
such use shall be subject to all other restrictions of this agreement and
shall continue only so long as the condition giving rise to such use
continues. Prior to commencing such use, if possible, and in any event within
forty-eight (48) hours of such use, Customer shall give Vendor written notice
of the circumstance, location and the expected length of such use. Failure to
give notice shall nullify Customers right of emergency use, as herein
granted.
1.5 ASSIGNMENT. Customer rights under this agreement and in and to
the Product may not be assigned, licensed, sublicensed, pledged, or otherwise
transferred voluntarily, by operation of law or otherwise without Vendors
prior written consent, and any such prohibited assignment shall be null and
void.
II. CONSIDERATION
2.1 LICENSE FEE. In consideration of the license of the Product
granted under this agreement, Customer shall pay to Vendor the license fee
specified In Appendix A. Such license fee does not Include, except as
expressly provided in this agreement or Appendix A hereto, installation or
maintenance of the Product, data base conversion, media, transportation
charges, or taxes, all of which costs and taxes shall be the obligation of
Customer.
2.2 MANNER OF PAYMENT. The license fee listed In Appendix A shall
be payable in the following manner:
(A) A percentage of the license fee, as specified in Appendix A,
upon execution of this license agreement by Customer.
(B) The balance, including any applicable taxes, upon delivery of
the Product by Vendor to Customer.
Invoices respecting the license fee shall be rendered in accordance with the
above payment schedule and are payable to Vendor at Vendor's address set
forth below within ten (10) days of receipt.
2.3 TAXES. In addition to the license fee payable hereunder,
Customer shall pay all taxes (including, without limitation, sales, use,
privilege, ac valorem or excise taxes) and customs duties paid or now or
hereafter payable, however designated, levied or based on amounts payable to
Vendor hereunder or on Customer's use or possession of the Product under this
agreement or upon the presence of the Product at the location identified in
Appendix A, but exclusive of federal, state and local taxes based on Vendor's
net income. Customer shall not deduct from payments to Vendor any amounts
paid or payable to third parties for customs duties or taxes, however
designated.
2.4 CURRENCY. The purchase price and any other charges arising
under this agreement shall be invoiced and be payable in U. S. Dollars.
2.5 LATE PAYMENT. Customer shall pay a late payment charge of one
and one-half percent (1 1/2%) per month, or the maximum late payment charge
permitted by applicable law, whichever is less, on any amount payable by
Customer under this Agreement and not paid when due. Said late payment charge
shall be applied for each calendar month (or fraction thereon that such
payment is not made following its due date.
2.6 SECURITY. Vendor reserves and Customer grants to Vendor a
security interest in the rights of Customer for use of the Product and in the
Documentation as security for the performance by Customer of Its obligations
hereunder including, but not limited to, payment of the license fee set forth
In Appendix A. A copy of this agreement may be flied in appropriate filing
offices at any time after signature by Customer as a financing statement or
Vendor may require and Customer shall execute a separate financing statement
for purposes of perfecting Vendors security interest granted pursuant to the
provisions of this paragraph.
III. DELIVERY, TRAINING AND OPERATION
3.1 DELIVERY. Vendor shall deliver the Product and Customer shall
accept delivery of the Product at Customers address set forth below. Unless
delayed, as hereinafter provided for, delivery shall be completed within one
(1) year of the date accepted by Vendor.
3.2 DELIVERY DELAYS. In the event Customer requests delay of
delivery, Vendor shall not be obligated to effect delivery of the Product
except upon thirty (30) days written notice by Customer to Vendor. If delay
in delivery is due to any cause beyond the control of Vendor, the date upon
which delivery is to be completed shall be extended by the number of days of
such delay.
3.3 TRAINING. Classes in the operation of the Product are available
at the offices of Vendor, on a regularly scheduled basis at Vendors normal
rates with respect thereto. All travel, meal and lodging expenses of Customer
in connection with such training shall be borne by Customer. On-site training
or assistance will be available solely at Vendor's discretion and will be
charged to Customer at VendorOs normal rates together with reasonable
expenses for travel, meals, lodging and local transportation.
3.4 ASSISTANCE BY CUSTOMER. Customer shall provide reasonable
assistance and cooperation to Vendor in preparation of the Product and the
delivery or Installation thereof. Such assistance and cooperation shall
include, as appropriate, reasonable access to CustomerOs facility and to
Customer's records, as necessary.
3.5 DOCUMENTATION. Operations manuals in respect to the Product
will be delivered to Customer prior to or contemporaneously with the delivery
of the Product.
3.6 RISK OF LOSS. If the Product or the Documentation is lost or
damaged, in whole or in part, during shipment, Vendor will replace said
Product or Documentation at no additional charge to Customer. Upon delivery
in good condition of the Product and the Documentation, Customer shall be
responsible therefor and bear the risk of loss for said Product and
Documentation.
3.7 INSTALLATION ASSISTANCE. Vendor may, at its sole discretion.
assist Customer in any required installation of the Product at Vendors normal
charges for such assistance. Expenses, including but not limited to computer
time, travel, meals, lodging and local transportation incurred in connection
therewith, shall be borne by Customer. In no event shall Vendor be liable to
Customer for loss of profits, consequential, incidental, indirect or special
damages arising from Vendors efforts to assist in such installation. Vendor
agrees to treat Customer's confidential business with the same security as it
would its own.
3.8 OPERATION. Customer acknowledges and agrees that it is
exclusively responsible for the operation, supervision, management and
control of the Product, including, but not limited to, providing adequate
training for its personnel, instituting appropriate security procedures, and
implementing reasonable procedures to examine and verify all output before
use. Vendor shall have no responsibility or liability for Customer's
selection or use of the Product or any associated equipment.
3.9 CUSTOMER OBLIGATIONS. In order to maintain the continuing
integrity and proper operation of the Product, Customer agrees to implement,
in the manner instructed by Vendor, each error correction and each
enhancement and improvement provided to Customer by Vendor. Customer's
failure to do so shall relieve Vendor of any responsibility or liability
whatsoever for any failure or malfunction of the Product as modified by a
subsequent correction or improvement, but in no such event shall Customer be
relieved of the responsibility for payment of fees and charges otherwise
property invoiced during the term hereof. If requested by Vendor, Customer
agrees to provide written documentation and details to Vendor to substantiate
problems and to assist Vendor in the identification and detection of
problems, errors and malfunctions; and Customer agrees that Vendor shall have
no obligation or liability for said problems until it has received such
documentation and details from Customer.
IV. VENDOR'S PROPRIETARY RIGHTS
4.1 NON-DISCLOSURE. Customer shall take all reasonable steps
necessary to ensure that neither the Product nor the Documentation, nor any
portion thereof, an magnetic tape or disk or in any other form, is made
available or disclosed by Customer or any of its agents or employees to any
other person, firm or corporation. Customer may disclose relevant aspects of
the Product and Documentation to its employees and agents to the extent such
disclosure is reasonably necessary to Customer's use of the Product,
provided, however, Customer agrees that will cause all persons permitted such
access to the Product and the Documentation to observe and perform the
foregoing non-disclosure covenant, and that ft will advise Vendor of the
procedures employed for this purpose. Customer shall hold Vendor harmless
against any loss, cost, expense, claim or liability, including reasonable
attorneys fees, resulting from Customer's breach of this non-disclosure
obligation. This paragraph shall survive the term or termination of this
agreement.
4.2 COPIES. Customer agrees that while the Product and the
Documentation are in its custody and possession, it will not (a) copy or
duplicate or permit anyone else to copy or duplicate any of the Product,
Documentation or information furnished by Vendor, or (b) create or attempt to
create, or permit others to create or attempt to create, by reverse
engineering or otherwise, the Product, the Documentation or other information
made available under this agreement or otherwise, (whether oral, written,
tangible or intangible). Notwithstanding the foregoing, Customer may make and
retain two (2) copies of the Product, Including all enhancements and changes
hereto, only for use in emergencies or to test emergency procedures and may
copy for Its own use and at Its own expense the Documentation, but shall
advise Vendor of the specific item copied, the number of copies made and
their distribution. The original and any copies in whole or In part of the
Product or Documentation which are made pursuant to this provision shall be
the exclusive property of Vendor and shall be fully subject to the provisions
of this agreement. Customer agrees to retain or place Vendor's proprietary
notice on any copies or partial copies made pursuant to this provision.
4.3 UNAUTHORIZED ACTS. Customer agrees to notify Vendor immediately
of the unauthorized possession, use, or knowledge of the Product,
Documentation or any information made available to Customer, pursuant to this
agreement, by any person or organization not authorized by this agreement to
have such possession, use or knowledge. Customer will, thereafter, fully
cooperate with Vendor in the protection and redress of Vendor proprietary
rights. Customers compliance with this paragraph shall not, however, be
construed in any way as a waiver of Vendors rights against Customer or
Customers negligent or intentional harm to Vendors proprietary rights, or for
breach of Vendor's contractual rights,
4.4 INSPECTION. To assist Vendor in the protection of its
proprietary rights, Customer snail permit representatives of Vendor to
inspect the Product and Documentation and their use, including inspection of
any location in which they are being used or kept at all reasonable times.
4.5 INJUNCTIVE RELIEF. If Customer attempts to use, copy, license,
sublicense. sell or otherwise convey or to disclose the Product or
Documentation, in any manner contrary to the terms of this agreement or in
derogation of Vendor's proprietary lights, whether such rights are explicitly
herein stated, determined by law or otherwise, Vendor shall have, in addition
to any other remedies available to it, the right to injunctive relief
enjoining such actions, Customer hereby acknowledging that other remedies are
inadequate.
V. MAINTENANCE, ENHANCEMENTS AND WARRANTIES
5.1 PRODUCT WARRANTY. Vendor warrants that at delivery, the Product
will perform in accordance with the then current Documentation provided
Customer, and further warrants that it has the light to authorize the use of
the Product under this agreement. VendorOs obligation and liability under
this paragraph shall, however, be limited to the re placement and correction
of the Product so that it will so perform, or to obtaining any authorization
necessary to make effective the grant of license to Customer of the use of
the Product.
5.2 PATENT INFRINGEMENTS. Vendor shall hold harmless and defend
Customer from any claim or any suit based on any claim that the use of the
Product by Customer under this agreement infringes on any patent, copyright,
trademark, or other proprietary right of any third party, provided that
Customer gives Vendor prompt and written notice of any such claim or suit and
permits Vendor to control the defense thereof.
5.3 WARRANTY DISCLAIMER. THE FOREGOING WARRANTIES ARE IN LIEU OF
ALL OTHER WARRANTIES AND NO OTHER WARRANTY IS EXPRESSED OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE.
5.4 RENEWAL OF WARRANTIES. Unless sooner terminated pursuant to the
provisions of paragraph 5.6, the warranties granted by paragraphs 5.1 and 5.2
(subject, however, to all limitations and disclaimers contained within this
agreement) and the right to any enhancements or corrections developed by
Vendor under paragraph 5.5, shall be subject to extension for successive
one-year warranty periods commencing on the date of the delivery of the
Product. Each one year extension (the 'Warranty Period") shall be deemed to
automatically occur unless notice is given by either Customer or Vendor of an
election not to so extend, such notice to be given on or prior to the
sixtieth (60th) day preceding the Warranty Period. Any such extension shall
in no event be effective unless Customer shall have paid to Vendor on or
prior to the beginning of the Warranty Period Its then current annual
maintenance fee.
5.5 ENHANCEMENTS AND CHANGES. Vendor shall provide Customer with
all enhancements and changes to the Product designed or developed by Vendor
and released to its other customers during the Warranty Period. Any change or
enhancement to the Product, whether developed or designed by Vendor or by
Customer shall be and remain the property of Vendor, provided, however, that
Customer shall be entitled to a perpetual license without additional license
fee of any enhancements or corrections developed by Customer. Vendor reserves
the right to make changes in operating procedures, program language, file
structures, access techniques, general purpose programs, data storage
requirements, input and output formats, report formats, types of hardware
supported, throughput, and other related programming and documentation
improvements required to maintain the Product current. As part of these
services, Vendor will provide Customer the changes with written instructions
concerning implementation. It is understood and agreed that Vendor provision
of improvements and enhancements under this paragraph does not include
providing to Customer new product which may result from rewriting the
Product. Vendor alone shall determine whether the work product of Vendor
constitutes new product as a result of a complete rewrite (which is not
provided to Customer hereunder) or an improvement or enhancement of the
Product (which will be provided to Customer).
5.6 TERMINATION OF WARRANTIES. The warranties expressed in
paragraphs 5.1 and 5.2 and Customers rights under paragraph 5.5 shall
immediately terminate if the Product is revised, changed, enhanced, modified
or maintained by any one other than Vendor without the prior specific
direction or written approval of Vendor.
5.7 LIMITATION OF LIABILITY. Customer expressly agrees that
Vendor's responsibilities In the event of its breach of the warranties
contained in paragraphs 5.1 and 5.2 are as set forth in said paragraphs.
Vendor's liability for damages, including but not limited to liability for
patent or copyright infringement, regardless of the form of action, shall not
exceed the license fee set forth In Appendix A to this agreement and shall
arise only if the remedies provided in paragraphs 5.1 and 5.2 are not
fulfilled by Vendor. Customer further agrees that Vendor will not be liable
for any lost profits, or for any claim or demand against Customer by any
other party, except a claim for patent or copyright Infringement as provided
herein. IN NO EVENT VVILL VENDOR BE LIABLE FOR CONSEQUENTIAL DAMAGES EVEN IF
VENDOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. No action,
regardless of form, arising out of this agreement, may be brought by either
party more than one (1 ) year after the cause of action has accrued, except
that an action for non-payment may be brought within one (1) year after the
date of last payment. No action by Vendor for wrongful disclosure or use of
the Product or Documentation shall be deemed to have accrued until Vendor
receives actual notice of such wrongful disclosure or use.
THE CUSTOMER'S REMEDIES SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE.
VI. DEFAULT
6.1 TERMINATION. Vendor may terminate this agreement and the
license granted hereunder in the event of a default by Customer unless
Customer shall have cured the event of default, as hereinafter defined,
within twenty (20) days after notice of such event of default given by Vendor
to Customer. This agreement and the license granted hereunder shall
automatically terminate if Vendor's warranties are not renewed as
contemplated in paragraph 5.4 hereof. Upon any termination of this agreement,
Customer shall deliver to Vendor the Product, the Documentation and all
copies thereof and shall also warrant in writing that all copies have been
returned to Vendor or destroyed.
6.2 EVENTS OF DEFAULT. An event of default is defined as
any of the following:
(A) Customers failure to pay any amounts required to be paid to
Vendor under this agreement on a timely basis;
(B) Any attempt (i) to assign, sell, mortgage, lease, sublease,
license, sublicense or otherwise convey, (ii) to grant any interest in, night
of use of, or access to, or (iii) to otherwise disclose the Product or the
Documentation, except, in any such case, as herein expressly permitted or as
consented to in writing by the Vendor-,
(C) Causing or permitting any encumbrance, of any nature whatsoever
to attach to Customer's interest in the Product in favor of any person or
entity other than Vendor,
(D) The entry of any order for relief under any provision of the
federal bankruptcy code in any bankruptcy proceedings initiated by or against
Customer; or
(E) Customer's breach of any of the terms or conditions of this
agreement.
6.3 DAMAGES. Upon the occurrence of an event of default without
cure within the period of time above-provided, all license or other fees
payable to Vendor under this agreement shall without notice or demand by
Vendor become immediately due and payable as liquidated damages. This
provision for liquidated damages shall not be regarded as a waiver by Vendor
of any other rights to which it may be entitled in the event of Customers
default, but rather, such remedy shall be an addition to any other remedy
lawfully available to Vendor.
VII. GENERAL
7.1 TITLES. Titles and paragraph headings are for reference
purposes only and are not to be considered a part of this agreement.
7 2 FORCE MAJEURE. No party shall be liable for delay in
performance hereunder due to causes beyond its control, including but not
limited to acts of God, fires, strikes, delinquencies of suppliers, acts of
war or intervention by any governmental authority, and each party shall take
steps to minimize any such delay.
7.3 WAIVER. No waiver of any breach of any provision of this
agreement shall constitute a waiver of any prior, concurrent or subsequent
breach of the same or any other provisions hereof and no waiver small be
effective unless made in writing and signed by an authorized representative
of the party to be charged therewith.
7.4 SEVERABILITY. In the event that any provision of this agreement
shall be illegal or otherwise unenforceable, such provision shall be severed
from this agreement and the entire agreement shall not fail on account
thereof, the balance of the agreement continuing in full force and effect.
7.5 NOTICES. Any notice which either party hereto is required or
permitted to give hereunder shall be addressed to the party to be charged
therewith at the address set forth below and shall be given by certified or
registered mail. Any such notice shall be deemed given on the date of deposit
in the mail.
7.6 ENTIRE AGREEMENT. THE PARTIES HERETO ACKNOWLEDGE THAT EACH HAS
READ THIS AGREE:MENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS.
THE PARTIES FURTHER AGREE THAT THIS AGREEMENT AND ANY MODIFICATIONS MADE
PURSUANT TO IT CONSTITUTE THE COMPLETE AND EXCLUSIVE WRITTEN EXPRESSION OF
THE TERMS OF THE AGREEMENT BETWEEN THE PARTIES, AND SUPERSEDE ALL PRIOR OR
CONTEMPORANEOUS PROPOSALS, ORAL OR WRITTEN, UNDERSTANDINGS, REPRESENTATIONS,
CONDITIONS, WARRANTIES, COVENANTS, AND ALL OTHER COMMUNICATIONS BETWEEN THE
PARTIES RELATING TO THE SUBJECT MATT ER OF THIS AGREEMENT. THE PARTIES
FURTHER AGREE THAT THIS AGREEMENT MAY NOT IN ANY WAY BE EXPLAINED OR
SUPPLEMENTED BY A PRIOR OR EXISTING COURSE OF DEALINGS BETWEEN THE PARTIES,
BY ANY USAGE OF TRADE OR CUSTOM, OR BY ANY PRIOR PERFORMANCE BETWEEN THE
PARTIES PURSUANT TO THIS AGREEMENT OR OTHERWISE. IN THE EVENT CUSTOMER ISSUES
A PURCHASE ORDER OR OTHER INSTRUMENT COVERING THE SERVICES OR DOCUMENTATION
HEREIN SPECIFIED, IT IS UNDERSTOOD AND AGREED THAT SUCH PURCHASE ORDER OR
OTHER INSTRUMENT IS FOR CUSTOMER'S INTERNAL USE AND PURPOSES ONLY AND SHALL
IN NO WAY AFFECT ANY OF THE TERMS AND CONDITIONS OF THIS AGREEMENT.
7.7 GOVERNING LAW. This agreement is accepted in the State of
Nebraska, and shall be enforced in accordance with and governed by the laws
of the State of Nebraska.
7.8 CHOICE OF FORUM. Any action arising out of or related to this
agreement or the transaction herein described, whether at law or In equity,
may be instituted in and litigated in the state or federal courts of the
State of Nebraska. In accordance herewith, the parties hereto submit to the
jurisdiction of the courts of said state. Any party being not a resident of
Nebraska at the time of suit hereby appoints the Secretary of State of
Nebraska as its agent for receipt of service of process.
7.9 ATTORNEY'S FEES. In the event that any action or proceeding is
brought in connection with this agreement the prevailing party therein shall
be entitled to recover Its costs and reasonable attorneys fees.
7.10 EFFECTIVE DATE. This agreement shall be effective on the date
accepted and executed by an authorized representative of Vendor.
CUSTOMER:
POINTE FINANCIAL CORPORATION
Signature: /s/
Name: C. DARYL HOLLIS
Title: SENIOR VICE PRESIDENT
Address: 21845 Powerline Road
Boca Raton, FL 33433
Date: AUGUST 17, 1995
VENDOR:
INFORMATION TECHNOLOGY, INC.
Signature: /s/
Name: Donald F. Dillon
Title: President
Address: 1345 Old Cheney Road
Lincoln, NE 68512
Date Accepted: August 23, 1995
APPENDIX A
DUE UPON EXECUTION 30%
COMPUTER SYSTEM (CPU) N/A (A99)
LOCATION WHERE THE PRODUCT(S) WILL BE USED:
Pointe Federal Savings & Loan
21845 Powerline Road
Boca Raton, FL 33433
<TABLE>
<CAPTION>
PRODUCT(S) AND LICENSE FEE(S):
<S> <C> <C>
505-001 Plus Run-Time System (1 Site) $ 5,000
506-006 Plus Merge/Delta/Extract/Apply 3,000
507-012 Plus Per Workstation Fee (12 @ $450) 5,400
523-003 Plus SMM Site License (1 @ $650) 650
TOTAL: $14,050
</TABLE>
<TABLE>
<CAPTION>
# OF # OF
SITE # LOCATION NAME WORKSTATIONS SITES
<S> <C> <C> <C>
1 Main Office 12 1
</TABLE>
MKT307/0195
(LOGO)
INFORMATION TECHNOLOGY INC.
EQUIPMENT SALE AGREEMENT
Agreement made between Information Technology, Inc. (the "Vendor"),
and the "Customer" identified below.
I. PURCHASE
1.1 Customer hereby purchases from Vendor and Vendor hereby sells
to Customer the equipment Identified in Appendix A (the "Equipment"), upon
the terms set forth in this agreement.
II. DELIVERY
2.1 Delivery and installation of the Equipment will be made by the
manufacturer of the Equipment identified in Appendix A the "Manufacturer), at
Customers address set forth below. Customer agrees to have a site adequately
and property prepared, in accordance with Manufacturer's instructions, to
receive and accept delivery of the Equipment. In no event shall Vendor be
responsible to Customer for any delays in delivery or installation or any
damages to Customer resulting from such delays.
III. CONSIDERATION
3.1 PURCHASE PRICE. As and for the purchase price for the
Equipment, Customer agrees to pay Vendor and Vendor agrees to accept from
Customer, the purchase price specified in Appendix A.
3.2 TAXES AND OTHER CHARGES. In addition to the purchase price,
Customer shall pay all transportation charges and all taxes (including,
without limitation, sales, use, privilege, ad valorem or excise taxes) and
customs duties paid or payable by Vendor, however designated, levied or based
on amounts payable to Vendor under this agreement, but exclusive of federal,
state and local taxes based an Vendors net income. If additional labor and
rigging are required for Installation due to Customer's special site
requirements, Customer will pay those costs, including costs to meet union or
local law requirements. Customer shall not deduct from payments to Vendor any
amounts paid or payable to third parties for transportation charges, customs
duties or taxes, however designated.
3.3 MANNER OF PAYMENTS. The purchase price and other charges
arising under this agreement shall be payable by Customer to Vendor
in the following manner
(A) A percentage of the purchase price, as specified in Appendix A,
shall be payable upon execution of this agreement by Customer; the receipt or
deposit of such payment, however, shall not constitute Vendor's acceptance of
this agreement.
(B) The balance of the purchase price, together with any
transportation charges and any taxes and duties theretofore incurred by
Vendor, shall be payable upon delivery of the Equipment to Customer.
(C) Any taxes, duties, or other charges incurred by Vendor
following delivery of the Equipment shall be payable within ten (10) days of
receipt by Customer of Vendor's invoice therefor.
3.4 CURRENCY. The purchase price and any other charges arising
under this agreement shall be Invoiced and be payable In U. S. Dollars.
3.5 LATE PAYMENT. Customer shall pay a late payment charge of one
and one-half percent (1 1/2%) per month, or the maximum late payment charge
permitted by applicable law, whichever Is less, on any amount payable by
Customer under this Agreement and not paid when due. Said late payment charge
shall be applied for each calendar month (or fraction thereon that such
payment is not made following its due date.
IV. TITLE
4.1 Until such time as the purchase price and any other charges
payable to Vendor as of the date of delivery have been paid in full, the
Equipment and all instruction manuals therefor shall remain the property of
Vendor and, at the option of Vendor, shall be returned to Vendor at
Customer's expense in the event the purchase price is not paid as hereinabove
provided.
V. SECURITY
5.1 Vendor reserves and Customer grants to Vendor a security interest in the
Equipment as security for the performance by Customer of Its obligations
hereunder including, but not limited to, payment of the purchase price and
other charges as specified in Section Ill above. A copy of this agreement may
be filed in appropriate filing offices at any time after signature by
Customer as a financing statement or Vendor may require and Customer shall
execute a separate financing statement for purposes of perfecting Vendors
security interest granted pursuant to the provisions of this paragraph.
VI. CUSTOMER OBLIGATIONS
6.1 RISK OF LOSS. From and after the date of delivery, the risk of
loss or damage to the Equipment shall be on the Customer.
6.2 OPERATION. Customer acknowledges and agrees that it is
exclusively responsible for the operation, supervision, management and
control of the Equipment, including, but not limited to, providing adequate
training for its personnel, instituting appropriate security procedures, and
implementing reasonable procedures to examine and verify all output before
use. Vendor shall have no responsibility or liability for Customer's
selection or use of the Equipment or any associated equipment.
VII. WARRANTIES
7.1 WARRANTY. Vendor warrants to Customer that It has the right to
transfer title of the Equipment to Customer. Vendors sole liability under
this warranty shall be to obtain any title or authorization necessary to
transfer such title to Customer.
7.2 DISCLAIMER. THE FOREGOING WARRANTY IS IN LIEU OF ALLOTHER
WARRANTIES AND NO OTHER WARRANTY IS EXPRESSED OR IMPLIED, INCLUDING, BUT NOT
LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
7.3 MANUFACTURER'S WARRANTY. Customer expressly understands and
agrees that warranties regarding patents, materials, workmanship or use of
the Equipment (the "Manufacturer's Warranty), If any, are made exclusively by
the Manufacturer and not by Vendor, and If made, shall be encompassed within
a separate agreement. Customers exclusive remedy under Manufacturer's
Warranty shall be as provided therein and shall lie exclusively against and
be obtainable only from the Manufacturer, and Customer expressly agrees that
It shall have no claim or cause of action against Vendor in the event the
Manufacturer Is for any reason unwilling or unable to perform under the terms
of Manufacturer's Warranty.
7.4 LIMITATION OF LIABILITY. Customer expressly agrees that Vendors
responsibilities in the event of its breach of the warranties contained in
paragraph 7.1 of this agreement are as set forth in said paragraph. Vendors
liability for damages, regardless of the form of action shall not exceed the
purchase price set forth in Appendix A to this agreement and shall arise only
if the remedies set forth in paragraph 7.1 are not fulfilled by Vendor.
Customer further agrees that Vendor will not be liable for any lost profit or
for any claim or demand against Customer by any other party. IN NO EVENT WILL
VENDOR BE LIABLE FOR CONSEQUENTIAL DAMAGES EVEN IF VENDOR HAS BEEN ADVISED OF
THE POSSIBILIT-Y OF SUCH DAMAGES. No action, regardless of form, arising out
of the transactions under this agreement, may be brought by either party more
than one (1) year after the cause of action has accrued, except that an
action for non-payment may be brought within one (1) year after the date of
the last payment
THE CUSTOMER'S REMEDIES SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE.
VIII. DEFAULT
8.1 REMEDY. Upon the occurrence of an event of default, as
hereinafter defined, by Customer, if the Equipment has theretofore been
delivered, Vendor may recover, together with any incidental damages, any
unpaid portion of the purchase price of the Equipment as specified in
Appendix A hereto. If the Equipment has not been delivered, in which event
Vendor may withhold delivery of such Equipment, or if the Equipment is
returned to Vendor upon Vendors election pursuant to Section IV, Vendor shall
resell the Equipment. Upon such resale, Vendor shall recover from Customer
the difference between the unpaid portion of the purchase price, as specified
in Appendix A, and the resale price, together with any incidental damages,
including expenses of resale, sustained by Vendor by reason of Customers
breach. If the resale price exceeds the unpaid portion of the purchase once
and Vendor's incidental damages, Vendor shall remit the excess to Customer.
8.2 EVENTS OF DEFAULT. As utilized in this agreement, an
event of default is defined as any of the following:
(A) Customer's failure to pay any amounts required to be paid to
Vendor under this agreement on a timely basis:
(B) Until the purchase once has been paid in full, any attempt by
Customer to assign, sell, mortgage, or otherwise convey the Equipment;
(C) Prior to the payment in full of the purchase price, Customer
causing or permitting any encumbrance, of any nature whatsoever, to attach to
Customer's interest in the Equipment in favor of any person or entity other
than Vendor;
(D) The entry of any order for relief under any provision of the federal
bankruptcy code in any bankruptcy proceedings initiated by or against
Customer, or
(E) Customer's breach of any of the terms or conditions of this
agreement.
IX. GENERAL
9.1 TITLES. Titles and paragraph headings are for reference
purposes only and are not to be considered a part of this agreement.
9.2 FORCE MAJEURE. No party shall be liable for delay in
performance hereunder due to causes beyond Its control, including but not
limited to acts of God, fires, strikes, delinquencies of suppliers,
intervention of any governmental authority or acts of war, and each party
shall take steps to minimize any such delay.
9.3 WAIVER. No waiver of any breach of any provision or this
agreement shall constitute a waiver of any prior, concurrent or subsequent
breach of the same or any other provisions hereof and no waiver snail be
effective unless made in writing and signed by an authorized representative
of the party to be charged there with.
9.4 SEVERABILITY. In the event that any provision of this agreement
snail be illegal or otherwise unenforceable, such provision shall be severed
from this agreement and the entire agreement snail not fail on account
thereof, the balance of the agreement continuing in full force and effect.
9.5 NOTICES. Any notice which either party hereto is required or
permitted to give hereunder shall be addressed to the party to be charged
therewith at the address set forth below and shall be given by certified or
registered mail. Any such notice shall be deemed given on the date of deposit
in the mail.
9.6 ENTIRE AGREEMENT. THE PARTIES HERETO ACKNOWLEDGE THAT E.ACH HAS
READ THIS AGREEMENT, UNDERSTANDS IT. AND AGREES TO BE BOUND BY ITS TERMS. THE
PARTIES FURTHER AGREE THAT THIS AGREEMENT AND ANY MODIFICATIONS MADE PURSUANT
TO IT CONSTITUTE THE COMPLETE AND EXCLUSIVE WRITT EN EXPRESSION OF THE TERMS
OF THE AGREEMENT BETWEEN THE PARTIES, AND SUPERSEDE ALL PRIOR OR
CONTEMPORANEOUS PROPOSALS, ORAL OR WRITT EN, UNDERSTANDINGS, REPRESENTATIONS,
COND[TIONS, WARRANTIES, COVENANTS, AND ALL OTHER COMMUNICATIONS BETWEEN THE
PARTIES RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT. THE PARTIES FURTHER
AGREE THAT THIS AGREEMENT MAY NOT IN ANY WAY BE F-XPL41NED OR SUPPLEMENTED BY
A PRICR OR EXISTING COURSE OF DEALINGS BETWEEN THE PARTIES, BY ANY USAGE OF
TRADE OR CUSTOM, (DR BY ANY PRIOR PERFORMANCE BETWEEN THE PARTIES PURSUANT TO
THIS AGREEMENT OR OTHERWISE. IN THE EVENT CUSTOMER ISSUES A PURCHASE ORDER OR
OTHER INSTRUMENT COVERING THE EQUIPMENT HEREIN SPECIFIED, IT IS UNDERSTOOD
AND AGREED THAT SUCH PURCHASE ORDER OR OTHER INSTRUMENT IS FOR CUSTOMER'S
INTERNAL USE AND PURPOSES ONLY AND SHALL IN NO WAY AFFECT ANY OF THE TERMS
AND CONDITIONS OF THIS AGREEMENT.
9.7 GOVERNING LAW. This agreement is accepted in the State of
Nebraska, and shall be enforced in accordance with and governed by the laws
of the State of Nebraska.
9.8 CHOICE OF FORUM. Any action arising out of or related to this
agreement or the transaction herein described, whether at law or in equity,
may be instituted in and litigated in the state or federal courts of the
State of Nebraska. In accordance herewith, the parties hereto submit to the
jurisdiction of the courts of said state. Any party being not a resident of
Nebraska at the time of suit hereby appoints the Secretary of State of
Nebraska as Its agent for receipt of service of process.
9.9 ATTORNEY'S FEES. In the event that any action or proceeding is
brought in connection with this agreement the prevailing party therein shall
be entitled to recover its costs and reasonable attorneys fees.
9.10 EFFECTIVE DATE. This agreement shall be effective on the date
accepted and executed by an authorized representative of Vendor.
CUSTOMER:
POINTE FINANCIAL CORPORATION
Signature: /s/
Name: C. DARYL HOLLIS
Title: SENIOR VICE PRESIDENT
Address: 21845 Powerline Road
Boca Raton, FL 33433
Date: AUGUST 17, 1995
VENDOR:
INFORMATION TECHNOLOGY, INC.
Signature: /s/
Name: Michael K. Young
Title: Vice President
Address: 1345 Old Cheney Road
Lincoln, NE 68512
Date Accepted: 9/26/95
APPENDIX A
EQUIPMENT AND TERMS
1. MANUFACTURER. The Manufacturer of the Equipment subject to this
agreement is: Software Dynamics, Inc.
2. PURCHASE PRICE: The purchase price for the Equipment is $1,395.00 . 1oo%
thereof shall be payable upon execution of this agreement, the balance
upon delivery of the Equipment.
3. EQUIPMENT. The Equipment subject to this agreement consists of the
following:
<TABLE>
<CAPTION>
QTY STYLE NUMBER DESCRIPTION UNIT PRICE TOTAL
<S> <C> <C> <C> <C>
1 1100 Jetform Design $495.00 $ 495.00
3 2500 Jetform Merge 300.00 900.00
TOTAL: $1,395.00
</TABLE>
(LOGO)
INFORMATION TECHNOLOGY, INC.
SERVICES AGREEMENT
This agreement is made and entered into between Information Technology, Inc.,
(the "Vendor"), and the "Client" identified below.
RECITALS
A. Vendor is in the business of providing computer hardware,
Software and services;
B. The Client has licensed Vendor software to provide data
processing services;
Whereas the Client has requested Vendor to provide consulting
services, and Vendor is willing to provide such services, IT IS HEREBY
AGREED;
1. LIMITATION OF LIABILITY. The Client agrees that in no event shall Vendor
be liable for any damages, including but not limited to, general, special,
direct, indirect, incidental or consequential damages which currently exist
or which may arise in connection with Vendor's performance of consulting
services for the Client.
2. INDEMNIFICATION. The Client agrees to indemnify and hold Vendor harmless
from any and all liability, claims, demands, actions or causes of action,
whether now existing, or hereafter occurring in connection with Vendor's
performance of consulting services. The Client's agreement to indemnify
Vendor shall also include any expenses, costs or attorney's fees which may
result from this Agreement.
3. FEES. The Client shall pay to Vendor a consulting fee of S700.00 per day,
including travel days, per consultant plus all travel expenses for all
consulting services provided by Vendor under this Agreement.
4. VENDOR'S EMPLOYEES. From and after the date hereof and continuing until
the expiration of one (1) year from the completion of services hereunder,
Client shall not. directly or indirectly, solicit for employment or employ
any employee of Vendor.
5. GOVERNING LAW. This Agreement shall be governed by and shall be construed
in accordance with the laws of the State of Nebraska.
6. ENTIRE AGRMEEMENT. THE PARTIES HERETO ACKNOWLEDGE THAT EACH HAS READ THIS
AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS. THE PARTIES
FURTHER AGREE THAT THIS AGREEMENT AND ANY MODIFICATIONS MADE PURSUANT TO IT
CONSTITUTE THE COMPLETE AND EXCLUSIVE WRITTEN EXPRESSION OF THE TERMS OF THE
AGREEMENT BETWEEN THE PARTIES, AND SUPERSEDE ALL PRIOR OR CONTEMPORANEOUS
PROPOSALS, ORAL OR WRITTEN. UNDERSTANDING, REPRESENTATIONS, CONDITIONS,
WARRANTIES, COVENANTS, AND ALL OTHER COMMUNICATIONS BETWEEN THE PARTIES
RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT.
7. HEADINGS. The headings of the several sections of this Agreement are
included for convenience of reference only and shall riot control or affect
the meaning or construction of any of the provisions hereof.
8. SEVERABILITY. If for any reason whatsoever, any one or more of the
provisions of this Agreement shall be held or deemed to be inoperative,
unenforceable or invalid as applied to any particular case or in all cases,
such circumstances shall not have the effect of rendering such provision
invalid in any other case or of rendering any of the other provisions of this
Agreement inoperative, unenforceable or invalid.
9. EFFECTIVE DATE. This Agreement shall be effective on date accepted and
executed by an authorized representative of Vendor.
CLIENT
POINTE FINANCIAL CORPORATION
Signature /s/
Name: PAMELA A. OLSON
Title: VP
Address: 21845 Powerline Road
Boca Raton, FL 33433
Date: 5-22-97
VENDOR
INNFORMATION TECHNOLOGY, INC
Signature: /s/
Name: Jerry L. Stearley
Title: Assistant Vice President
Address: Conversion Planning Department
1345 Old Cheney Road
Lincoln, NE 68512
Date: 5/27/97
Services Agreement for Assist in Test Database Migration. (# 800)
(LOGO)
INFORMATION TECHNOLOGY, INC
SERVICES AGREEMENT
This agreement is made and entered into between Information Technology, Inc.,
(the "Vendor"), and the "Client" identified below.
RECITALS
A. Vendor is in the business of providing computer hardware,
Software and services;
B. The Client has licensed Vendor software to provide data
processing services;
Whereas the Client has requested Vendor to provide consulting
services, and Vendor is willing to provide such services, IT IS HEREBY
AGREED;
1. LIMITATION OF LIABILITY. The Client agrees that in no event shall Vendor
be liable for any damages, including but not limited to, general, special,
direct, indirect, incidental or consequential damages which currently exist
or which may arise in connection with Vendor's performance of consulting
services for the Client.
2. INDEMNIFICATION. The Client agrees to indemnify and hold Vendor harmless
from any and all liability, claims, demands, actions or causes of action,
whether now existing, or hereafter occurring in connection with Vendor's
performance of consulting services. The Client's agreement to indemnify
Vendor shall also include any expenses, costs or attorney's fees which may
result from this Agreement.
3. FEES. The Client shall pay to Vendor a consulting fee of S700.00 per day,
including travel days, per consultant plus all travel expenses for all
consulting services provided by Vendor under this Agreement.
4. VENDOR'S EMPLOYEES. From and after the date hereof and continuing until
the expiration of one (1) year from the completion of services hereunder,
Client shall not. directly or indirectly, solicit for employment or employ
any employee of Vendor.
5. GOVERNING LAW. This Agreement shall be governed by and shall be construed
in accordance with the laws of the State of Nebraska.
6. ENTIRE AGRMEEMENT. THE PARTIES HERETO ACKNOWLEDGE THAT EACH HAS READ THIS
AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS. THE PARTIES
FURTHER AGREE THAT THIS AGREEMENT AND ANY MODIFICATIONS MADE PURSUANT TO IT
CONSTITUTE THE COMPLETE AND EXCLUSIVE WRITTEN EXPRESSION OF THE TERMS OF THE
AGREEMENT BETWEEN THE PARTIES, AND SUPERSEDE ALL PRIOR OR CONTEMPORANEOUS
PROPOSALS, ORAL OR WRITTEN. UNDERSTANDING, REPRESENTATIONS, CONDITIONS,
WARRANTIES, COVENANTS, AND ALL OTHER COMMUNICATIONS BETWEEN THE PARTIES
RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT.
7. HEADINGS. The headings of the several sections of this Agreement are
included for convenience of reference only and shall riot control or affect
the meaning or construction of any of the provisions hereof.
8. SEVERABILITY. If for any reason whatsoever, any one or more of the
provisions of this Agreement shall be held or deemed to be inoperative,
unenforceable or invalid as applied to any particular case or in all cases,
such circumstances shall not have the effect of rendering such provision
invalid in any other case or of rendering any of the other provisions of this
Agreement inoperative, unenforceable or invalid.
9. EFFECTIVE DATE. This Agreement shall be effective on date accepted and
executed by an authorized representative of Vendor.
CLIENT
POINTE FINANCIAL CORPORATION
Signature /s/
Name: PAMELA A. OLSON
Title: VICE PRESIDENT
Address: 21845 Powerline Road
Boca Raton, FL 33433
Date: May 8, 1997
VENDOR
INNFORMATION TECHNOLOGY, INC
Signature: /s/
Name: Jerry L. Stearley
Title: Assistant Vice President
Address: Conversion Planning Department
1345 Old Cheney Road
Lincoln, NE 68512
Date: 5/12/97
Services Agreement for Document Processing Installation (#772)
(LOGO)
INFORMATION TECHNOLOGY, INC.
SERVICES AGREEMENT
This agreement is made and entered into between Information Technology, Inc.,
(the "Vendor"), and the "Client" identified below.
RECITALS
A. Vendor is in the business of providing computer hardware,
Software and services;
B. The Client has licensed Vendor software to provide data
processing services;
Whereas the Client has requested Vendor to provide consulting
services, and Vendor is willing to provide such services, IT IS HEREBY
AGREED;
1. LIMITATION OF LIABILITY. The Client agrees that in no event shall Vendor
be liable for any damages, including but not limited to, general, special,
direct, indirect, incidental or consequential damages which currently exist
or which may arise in connection with Vendor's performance of consulting
services for the Client.
2. INDEMNIFICATION. The Client agrees to indemnify and hold Vendor harmless
from any and all liability, claims, demands, actions or causes of action,
whether now existing, or hereafter occurring in connection with Vendor's
performance of consulting services. The Client's agreement to indemnify
Vendor shall also include any expenses, costs or attorney's fees which may
result from this Agreement.
3. FEES. The Client shall pay to Vendor a consulting fee of S700.00 per day,
including travel days, per consultant plus all travel expenses for all
consulting services provided by Vendor under this Agreement.
4. VENDOR'S EMPLOYEES. From and after the date hereof and continuing until
the expiration of one (1) year from the completion of services hereunder,
Client shall not. directly or indirectly, solicit for employment or employ
any employee of Vendor.
5. GOVERNING LAW. This Agreement shall be governed by and shall be construed
in accordance with the laws of the State of Nebraska.
6. ENTIRE AGRMEEMENT. THE PARTIES HERETO ACKNOWLEDGE THAT EACH HAS READ THIS
AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS. THE PARTIES
FURTHER AGREE THAT THIS AGREEMENT AND ANY MODIFICATIONS MADE PURSUANT TO IT
CONSTITUTE THE COMPLETE AND EXCLUSIVE WRITTEN EXPRESSION OF THE TERMS OF THE
AGREEMENT BETWEEN THE PARTIES, AND SUPERSEDE ALL PRIOR OR CONTEMPORANEOUS
PROPOSALS, ORAL OR WRITTEN. UNDERSTANDING, REPRESENTATIONS, CONDITIONS,
WARRANTIES, COVENANTS, AND ALL OTHER COMMUNICATIONS BETWEEN THE PARTIES
RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT.
7. HEADINGS. The headings of the several sections of this Agreement are
included for convenience of reference only and shall riot control or affect
the meaning or construction of any of the provisions hereof.
8. SEVERABILITY. If for any reason whatsoever, any one or more of the
provisions of this Agreement shall be held or deemed to be inoperative,
unenforceable or invalid as applied to any particular case or in all cases,
such circumstances shall not have the effect of rendering such provision
invalid in any other case or of rendering any of the other provisions of this
Agreement inoperative, unenforceable or invalid.
9. EFFECTIVE DATE. This Agreement shall be effective on date accepted and
executed by an authorized representative of Vendor.
CLIENT
POINTE FINANCIAL CORPORATION
Signature /s/
Name: PAMELA A. OLSON
Title: VP
Address: 21845 Powerline Road
Boca Raton, FL 33433
Date: 4-30-97
VENDOR
INNFORMATION TECHNOLOGY, INC
Signature: /s/
Name: Jerry L. Stearley
Title: Assistant Vice President
Address: Conversion Planning Department
1345 Old Cheney Road
Lincoln, NE 68512
Date: 5/5/97
Services Agreement for Assist in 954/956 conversion. (#602)
(LOGO)
INFORMATION TECHNOLOGY INC.
CONVERSION ASSISTANCE AGREEMENT
Agreement made between Information Technology, Inc. (the "Vendor"),
and the "Customer" identified below.
I. CONVERSION ASSISTANCE
1.1 ASSISTANCE. Vendor hereby agrees to assist Customer in the
conversion of the applications specified in Appendix A for the "Client"
identified in Appendix A from Client's current computer processor to
Customer's computer system operating with Vendor's software. Vendor agrees to
treat Customer's and Client's confidential business with the same security as
it would its own.
1.2 CUSTOMER RESPONSIBILITY. Customer acknowledges and agrees that
it is exclusively responsible for the operations, supervision, management and
control of the conversion, including, but not limited to, providing adequate
training for Customer's and Client's personnel, instituting appropriate
security procedures, providing reasonable assistance and cooperation to
Vendor in preparation of the conversion, delivery and installation of
Client's converted files and implementing reasonable procedures to examine
and verify all output before use. Such assistance and cooperation shall
include, as appropriate, reasonable access to Customer's facility and access
to Customer's and Client's records including written documentation. In
addition, Customer agrees to provide the interface between Vendor, Client and
Client's current processor to insure the orderly flow of information as is
deemed necessary to facilitate Client's conversion. Customer agrees to
complete the conversion on or prior to the first anniversary of the effective
date of this agreement or such later date as Vendor shall have consented to
in writing.
1.3 CONVERSION SOFTWARE. Customer acknowledges that any software
written to accomplish Client's conversion and any standard conversion
software utilized to facilitate the conversion effort remain the exclusive
property of Vendor except to the extent specifically licensed under a
software license agreement between Vendor and Customer.
1.4 VENDOR EMPLOYEES. From and after the date hereof and continuing
until the expiration of one (1) year from the completion of services
hereunder, Customer shall not. directly or indirectly, solicit for employment
or employ any employee of Vendor.
II. CONSIDERATION
2.1 CONVERSION ASSISTANCE FEE. In consideration o t e assistance
provided under this agreement, Customer shall pay to Vendor the conversion
assistance fee specified in Appendix A. Such fee does not include, except as
expressly provided in this agreement or Appendix A hereto, conversion
software, installation or maintenance of the conversion software, media
conversion, per them charges specified in Appendix A, travel, meals, lodging,
local transportation, shipping and media charges incurred in connection
therewith, or taxes, ail of which costs and taxes shall be the obligation of
Customer.
2.2 MANNER OF PAYMENT. The conversion assistance fee listed in
Appendix A and expenses incurred in connection with the conversion shall be
payable in the following manner:
(A) A percentage of the conversion assistance fee, as specified in Appendix
A, upon execution of this agreement by Customer;
(B) The balance of the conversion assistance fee, including any applicable
taxes, plus expenses incurred in connection with the conversion upon
completion of said assistance by Vendor.
Invoices respecting the conversion assistance fee and expenses shall be
rendered in accordance with the above payment schedule and are payable to
Vendor at his address set forth below within ten days of receipt.
2.3 TAXES. In addition to the fee payable hereunder, Customer shall
pay all taxes (including, without limitation, sales, use, privilege, ad
valorem or excise taxes) and customs duties paid or payable, however
designated, levied or based on amounts payable to Vendor hereunder or on
Customer's use of Vendor's services or Customer's use or possession of the
conversion software under this agreement, but exclusive of federal, state and
local taxes based on Vendor's net income. Customer snail not deduct from
payments to Vendor any amounts paid or payable to third parties for customs
duties or taxes, however designated.
2.4 CURRENCY. The conversion assistance fee and any other charges
arising under this agreement shall be invoiced and be payable in U.S.
Dollars.
III. DEFAULT AND LIMITATION OF LIABILITY
3.1 TERMINATION. Vendor may terminate this agreement in the event
of a default by Customer unless Customer shall have cured the event of
default, as hereinafter defined. within twenty (20) days after notice of such
event of default given by Vendor to Customer. Upon any termination of this
agreement, Customer shall deliver to Vendor any software provided under this
agreement, the documentation and all copies thereof and shall also warrant in
writing that all copies have been returned to Vendor or destroyed.
3.2 EVENTS OF DEFAULT. An event of default is defined as
any of the following:
(A) Customer's failure to pay any amounts required to be paid to Vendor under
this agreement on a timely basis:
(B) The entry of any order for relief under any provision of the federal
bankruptcy code in any bankruptcy proceedings initiated by or
against Customer; or
(C) Customer's breach of any of the terms or conditions of this agreement.
3.3 DAMAGES. Upon the occurrence of any event of default without
cure within the period of time above-provided, all conversion assistance fees
or other fees payable to Vendor under this agreement shall without notice or
demand by Vendor become immediately due and payable as liquidated damages and
Vendor shall be entitled to retain any fees previously paid by Customer
hereunder. This provision for liquidated damages shall not be regarded as a
waiver by Vendor of any other rights to which it may be entitled in the event
of Customer's default, but rather, such remedy shall be an addition to any
other remedy lawfully available to Vendor.
3.4 LIMITATION OF LIABILITY. Vendor's liability for damages,
regardless of the form of action, shall not exceed the conversion assistance
fee set forth in Appendix A to this agreement. Customer further agrees that
Vendor will not be liable for any lost profits, or for any claim or demand
against Customer by any other party. IN NO EVENT WILL VENDOR BE LIABLE FOR
CONSEQUENTIAL DAMAGES EVEN IF VENDOR HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES. No action, regardless of form, arising out of this agreement,
may be brought by either party more than one (1) year after the cause of
action has accrued, except that an action for nonpayment may be brought
within one (1) year after the date of last payment.
CUSTOMER'S REMEDIES SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE.
IV. GENERAL
4.1 TITLES. Titles and paragraph headings are for reference
purposes only and are not to be considered a part of this agreement.
4.2 FORCE MAJEURE. No party shall be liable for delay in
performance hereunder due to causes beyond its control, including but not
limited to acts of God, fires, strikes, delinquencies of suppliers, acts of
war or intervention by any governmental authority, and each party shall take
steps to minimize any such delay.
4.3 WAIVER. No waiver of any breach of any provision of this
agreement shall constitute a waiver of any prior, concurrent or subsequent
breach of the same or any other provisions hereof and no waiver shall be
effective unless made in writing and signed by an authorized representative
of the party to be charged therewith.
4.4 SEVERABILITY. In the event that any provision of this agreement
shall be illegal or otherwise unenforceable, such provision shall be severed
from this agreement and the entire agreement shall not fail on account
thereof, the balance of the agreement continuing in lull force and effect.
4.5 NOTICES. Any notice which either party hereto is required or
permitted to give hereunder shall be addressed to the party to be charged
therewith at the address set forth below and shall be given by certified or
registered mail. Any such notice shall be deemed given on the date of deposit
in the mail.
4.6 ENTIRE AGREEMENT. THE PARTIES HERETO ACKNOWLEDGE THAT EACH HAS
READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS. THE
PAFMES FURTHER AGREE THAT THIS AGREEMENT AND ANY MODIFICATICNS MADE PURSUANT
TO IT CONSTITUTE THE COMPLETE AND EXCLUSIVE WRITTEN EXPRESSION OF THE TERMS
OF THE AGREEMENT BETWEEN THE PARTIES, AND SUPERSEDE ALL PRIOR OR
CONTEMPORANEOUS PROPOSALS, ORAL OR WRITTEN, UNDERSTANDINGS, REPRESENTATIONS,
CONDITIONS, WARRANTIES, COVENANTS, AND ALL OTHER COMMUNICATIONS BE TWEEN THE
PARTIES RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT THE PARTIES FURTHER
AGREE THAT THIS AGREEMENT MAY NOT IN ANYWAY BE EXPLAINED OR SUPPLEMENTED BY A
PRIOR OR EXISTING COURSE OF DEALINGS BETWEEN THE PARTIES, BY ANY USAGE OF
TRADE OR CUSTOM, OR BY ANY PRIOR PERFORMANCE BETWEEN THE PARTIES PUR. SUANT
TO THIS AGREEMENT OR OTHERWISE.
4.7 GOVERNING LAW. This agreement is accepted in the State
of Nebraska. and shall be enforced in accordance with and governed
by the laws of the State of Nebraska.
4.8 CHOICE OF FORUM. Any action arising out of or related to ,his
agreement or the transaction herein described, whether at law or in equity,
may be instituted in and litigated in the state or federal courts of the
State of Nebraska. In accordance herewith, the parties hereto submit to the
jurisdiction of the courts of said state. Any party being not a resident of
Nebraska at the time of suit hereby appoints the Secretary of State of
Nebraska as its agent for receipt of service of process.
4.9 ATTORNEY'S FEES. In the event that any action or proceeding is
brought in connection with this agreement the prevailing party therein shall
be entitled to recover its costs and reasonable attorney's fees.
4.10 EFFECTIVE DATE. This agreement shall be effective on the date
accepted and executed by an authorized representative of Vendor.
CUSTOMER:
POINTE FINANCIAL COPPORATION
Signature: /s/
Name: PAMELA A. OLSON
Title: VICE PRESIDENT
Address: 21845 Powerline Road
Boca Raton. FL 33433
Date: MARCH 25, 1997
VENDOR:
INFORMATION TECHNOLOGY, INC.
Signature: /s/
Name: Patrick Kerrigan
Title: Executive Vice President
Address: 1345 Old Cheney Road
Lincoln, NE 68512
Date Accepted: March 31, 1997
APPENDIX A
CLIENT:
POINTE BANK
Address: 21845 Powerline Road
Boca Raton, FL 33433
DUE UPON EXECUTION: $900
PER DIEM CHARGE PER INDIVIDUAL: $700
CLIENT APPLICATION(S) TO BE CONVERTED AND CONVERSION ASSISTANCE FEE(S):
Mortgage Loan $3,000 (per required program plus $.35 per account converted)
UNISYS LEASING CORPORATION
LEASE SCHEDULE NO. 01
DATED MAY 7, 1997
This Schedule incorporates by reference the terms of the following Master
Equipment Lease Agreement ("Master Lease"):
AGREEMENT NO.: 9016
DATE: May 7, 1997 BETWEEN
Unisys Leasing Corporation, AS LESSOR, AND
LESSEE: Pointe Financial Corporation
LESSEE ADDRESS: 21845 Powerline Road, Boca Raton, FL 33433
Capitalized terms not otherwise defined herein shall have the meanings set forth
in the above-referenced Master Lease. Lessee's execution of this Schedule shall
obligate Lessee to lease the Equipment from Unisys Leasing Corporation (which
for the purposes of this Schedule is the "Lessor") and pay the Rental Payments
and other amounts described under the terms and conditions of the
above-referenced Master Lease and this Schedule.
DESCRIPTION OF EQUIPMENT LEASED HEREUNDER AND/OR SOFTWARE AND SERVICES FOR WHICH
FEES ARE FINANCED HEREUNDER:
<TABLE>
<CAPTION>
Serial No.*
Quantity Style Description (if any)
<S> <C> <C> <C>
Equipment as described on Schedule A Equipment
Description attached hereto.
</TABLE>
EQUIPMENT LOCATION: 21845 Powerline Road
Boca Raton, FL 33433
Lessee permits Lessor to insert serial number of Equipment when determined by
Lessor.
RENTAL TERM: 60 months.
RENTAL PAYMENTS: 60 Monthly payments of $9,419.77 each (plus applicable
sales/use taxes, if any).
AMOUNT OF ADVANCE RENTAL PAYMENT(S): $ None (if none, so state).
RENEWAL OPTION: FMV (Fair Market Value)
PURCHASE OPTION: FMV (Fair Market Value)
LAST ACCEPTANCE DATE: June 30, 1997. (If the Equipment is not accepted
by this date, Lessor may cancel this Schedule.)
TAX BENEFITS: If Lessor does not intend to claim Tax Benefits with
respect to this Schedule, Lessor will initial here:_____
List any Addendums or Amendments attached to and made a part of this
Schedule: ____________
LESSEE:
Point Financial Corporation
(Name of Partnership/Corporation)
By: /s/ R. Carl Palmer, Jr.
(Signature)
R. CARL PALMER, JR.
(Printed Name)
President
(Title)
OR
- ------
(Individual Signature if Lessee is an individual, sole
proprietor or co-lessee)
- ------
(Printed Name)
This Schedule is accepted at Boulder, Colorado.
LESSOR:
UNISYS LEASING CORPORATION
BY: /s/ Christoper J. Queen
Christoper J. Queen
(Printed Name)
Director Region and Healthcare Syndications
(title)
AMENDMENT
UNISYS LEASING CORPORATION
Amendment and Addendum (this "Amendment")
Master Equipment Lease Agreement Number: 9016 (the "Lease")
Date of Lease: May 7, 1997
Lease Schedule Number: 01
Date of Schedule: May 7, 1997
Lessee has requested that the Lessor make certain changes and/or additions to
the Lease and Schedule, and Lessor has agreed to do so, upon the terms and
conditions provided herein. All capitalized terms not otherwise defined herein
shall have the meanings set forth in the Lease and Schedule.
1. The Lease and Schedule are hereby amended as follows:
A. Amend the Name of the Lessee adding Pointe Bank as Co-Lessee
2. Except as expressly provided herein, all other terms and conditions of the
Lease and Schedule shall remain unchanged and in full force and effect.
LESSOR:
UNISYS LEASING CORPORATION
By: /s/ Christopher J. Queen
(Signature)
Christopher J. Queen
(Printed Name)
Title: Director
Region and Healthcare Syndications
CO-LESSEE:
POINTE FINANCIAL CORPORATION
By: /s/ R. Carl Palmer, Jr.
R. CARL PALMER, JR.
(printed name)
Title: President
CO-LESSEE:
POINTE BANK
By: /s/ R. Carl Palmer, Jr.
R. CARL PALMER, JR.
(printed name)
Title: President
SCHEDULE A
EQUIPMENT DESCRIPTION
Attached to Lease Schedule Number 01 under Master Equipment Lease
Agreement Number 9016
<TABLE>
<CAPTION>
ITEM STYLE DESCRIPTION QUANTITY
<S> <C> <C> <C>
01 NX4601-11 SYS:NX4601-MODEL 11 1
02 NX4601-AP1 CABINET:NX4601-11 1
03 OR400-SY1 PROC:SINGLE 1ST PROC 1
04 OR400-OP ACC:OPERATIONAL CODE 1
05 NX4601 -100 FUNCT'L S/W:NX4601-11 1
06 A14-96S MEM:96MB INCREMENT 1
07 NX4600-CP2 INSTL:NX4600 COMP PKG 2 1
08 RMS-CA4 INSTL:CHANNEL ADPTR MOD 1
09 CA301-FT ADPTR:CA RACK FEED THRU 1
10 CBL10-CS CABLE:10FT CSBUS 1
11 CA622-BAS CTRL:ENTRY 802.3 BASE 1
12 CA600-OMS ADPTR:ETH ADAPTER 1
13 CP2013-5 I/F802.3 LAN TRANSC VER 1
14 CHN36-CNV UPGRD:3U-6U CA RACK UPGR 1
15 RM36-FRM INSTL:FRAME ASSY, 36U 1
16 RM36-AP1 INSTL.SKIN-TOP, REAR, SIDE 1
17 RM2-TRM INSTL:APPEARANCE TRIM 1
18 RM1319-HK INSTL:FRONT FILLERS 1
19 RM1936-FOT INSTL:STABILIZER FOOT 1
20 ASD1545-SEA DISK:1.54 GB SE 180 SECT 2
21 VX1401-BSE SYS.BASIC SERVER 1X1 1
22 SFR600081-ZA2 SYS:PENT PRO BASE SYSTEM 1
23 SXE6200-512 PROC:PP 200MZ W/512 CA 1
24 MEM621-SIM MEM:MEM CARD W/SIMM SKTS 1
25 RAD341-PCI CTRL:3CHAN RAID W/4MB CA 1
26 CDR1200-SI DISK:12-SP INT SCSI CDR 1
27 HDS2000-WC5 DISK:2G SCA WIDE SCSI 2
28 PCV102-PCI CTRL:GRPH ADATR 2MB DRAM 1
29 PC1300-SUN CTRL:ULTRA NARROW SCSI 1
30 CBL421-SXE CABLE:SXE WIDE SCSI CBL 1
31 ETH101001-PCI LAN HW:10/100MB TX - PCI 1
32 PCT4000-INT TAPE:4GB INTERNAL TAPE 1
33 VXF40OG-81Z INSTL:FASCIA, NT SERVER 1
34 VX9999-CPS INSTL:CLEARPATH SVR APPL 1
35 NX4010-INT INSTL:SINGLE DOMAIN PAGE 1
36 CCP6065-XED INSTL:DIFF. CCP KIT 1
37 CBK25-CSD CABLE:25FT EXT DIFF BUS 1
38 vx4000-xcr COMM HW:TRANSCEIVER 2
39 DSH600007-TBT CABLE:TW PAR 10 BAST, 7M 4
40 VX4004-SVVT ACC:MON/KEY/MOUSE SWTICH 1
41 VX4000-SWH ACC:SWITCHING HUB 1
42 CBL25-APX CABLE:25 FT APEX SWITCH 2
43 CA312-SCI ADPTR:DIFFERENTIAL SCSI2 2
44 HS8505-TD TAPE:8MM TABLE TOP 1
45 CBL313-1OA CABLE:10' SCSI I/O 2
46 OP378-33 ADPTR:DATA COMM HOST 1
47 CBL378-S CABLE:CONN BOX - 8 FT 1
48 OMS32144-S25 DISK:PKG SP 4X1, 545MB 1
49 OMS3000-SC DISK:3U SCSI RACK W/PCM 1
50 OSM1000-040 UPGRD:OSM 50P-C SW2WD 1
51 OSM3000-APM UPGRD:ALWAYS POWER MOD 1
52 OSM3000-SBS UPGRD:OSM STATUS BUS SLV 1
53 OSM30O0-RMK UPGRD:USE CAB MOUNTING K 1
54 OSD2100-S25 DISK:DEV CAGE 1,545MB SP 4
55 RM3-APC POWER:AUTOMATIC CONTROL 1
56 VX400064-MEM MEM:INITIAL 64MB MEMORY 1
57 MTP6-8M MEM:60NS PARITY/TIN/72P 8
58 OSM1000-PRC INSTL:OSM IEC320 PWR CRD 2
59 NXU4601-11W SUBSCRN:SSU 4601-11 1
60 NX10-SSW SUBSCRN:SSU 1
61 TXC1-API GUI:TXCLIENT API 1U 1
62 ICW30-CS WRKST SW:INFOCONNECT CS 5
63 NXP30-DCS COM SW:DATA COMM 1
64 NXI0-DCS COM SW:DATA COMM 1
65 NXP30-BYC COM SW:BISYNC PROTOCOL 1
66 NXP10-BYC COM SW:BISYNC PROTOCOL 1
67 NXP30-RMP COM SW:REMOTE PRINT SYS 1
68 NX10-RMP COM SW:REMOTE PRINT SYS 1
69 VXS 1104-1N IOE:NT/MCP 1X1-4 ENGLISH 1
70 NTS35104-L O/S:NT/3.51 SERVER 4 PROC 1
71 A5300-SL2 DRIVER: 8MM TAPE 1
72 NXS4601-11W IOE:NT/MCP 4601-11 1
73 NX10-MCM IOE:NX SYS SW COR MEDIA 1
74 NX10-CPW IOE:NT/MCP COMM PLAT SW 1
75 NX10-CNN IOE:NT/MCP COMM NW SW 1
76 NX4600-PSS IOE:PLATFORM SPECIFIC SW 1
77 NXC4-ODL DATAMGT:ODBC 4 USER LIC 1
78 NXC1-CSL OLTP:1 USER C/S LIC LO 1
79 NXC25-NXV WRKST SW:ICNXVIEW 25U LO 1
80 TXC1-RT GUI:TXCLIENT R/T 1U 1
81 DP575-SNT SYS DP500 STD HGT NT CON 1
82 DP500-TNT O/S:TRACK NT SOFTWARE 1
83 DP575-SHC PROC:STD NT CONSOLE 1
84 DP550-HNT DISK:DP500 NT YTRACK (IDE) 1
85 evgl42-COL DISPLAY:14" COLOR 1
86 DP552-SEM READER:E13B MICR 1
87 DP503-EME ENCODER:E13B MICR 1
88 DP505-RMJ ENDORSER:REAR MJE 1
89 DP506-RSO ENDORSER:REAR STAMP 1
90 DP510-MPR PRINTER:MASTER 1
91 DP509-SHM M/FILM:STD MICROFILM 1
92 UDS9616-LE1 PRINTER:16PPM LASER 1
93 15-1663-150 CASH LETTER PRT CBL-15 FT. 1
94 CWP50051-ZFD SYSICWP5 SLOT BASE SYS 1
95 CWP50051-ZA SYS:CWP5 SLOT BASE SYS 1
96 CWP50051-OK1 ACC:CWP5 SLOT OP KIT 1
97 PRC5133-P54 PROC:P54C 133MHZ PROC 1
98 MPM4-16M MEM:16MB EDO MEM EXP 2
99 EMC25606-CA MEM:256MB SYNC CACHE MOD 1
100 PCV102-PCI CRTL:GRPH ADATR 2MB DRAM 1
101 EVG142-COL DISPLAY:14" COLOR 1
102 DP512-SHP STACKER:STD HGT 12HP 1
103 DP512-BAS STACKER:FIRST/LAST PKT 1
104 DP512-SSM STACKER:STD HGT PKT MOD 1
105 KBM104-SS ACC: 104 SS KYBD/M/LC 1
106 PCK104-SB KEYBD:SPACE SAVER 1
107 PWM1-PS2 MOUSE:2 BUTTON MOUSE/PS2 1
108 B25-LC PWR CORD:LINE CORD 1
109 HDS2000-SN5 DISK:2GB ULTA SCSI 5400 1
110 CDR1200-AI DISK:12-SP INT ATAPI CDR 1
111 ETH100-PCI LAN HAW:l OM ETHERNET PCI 1
112 CWP50051-ZFD SYS:CWP 5 SLOT BASE SYS 2
113 CWP50051-ZA SYS:CWP 5 SLOT BASE SYS 2
114 CWP50051-OK1 ACC:CWP 5 SLOT OP KIT 2
115 ORC5100-P54 PROC:INTEL P54C 100 2
116 EMC25606-CA MEM:2546K SYC CACHE MOD 2
117 MPM4-16M MEM:16MB EDO MEM EXP 4
118 PCVlG2-PCI CTRL:GRPH ADATR 2MB DRAM 2
119 KBMl 94OSS ACC:104 SS KYBD/M/ 2
120 PCK104-SKB KEYBD:SPACE SAVER 2
121 PWM1-PS2 MOUSE:2 BUTTON MCUSE/PS2 2
122 B25-LC PWR CORD:LINE CORD 2
123 HDI1200-4 DISK:1.2GB 4500PM IDE 2
124 ETH100-PCI LAN HW:10M ETHERNET PCI 2
125 EVG142-COL DISPLAY:14" COLOR 2
126 CWC5131101-1OA SYS:33MZ 1G/HD 16M/RAM 1
127 CWD5001-ZA SYS:AQUANTA CWD ZBOX 1
128 CWD5002-PAK ACC:CWD ACC PAK 1
129 ORC5133-P54 PROC:54C 133MHZ PROC 1
130 CWD5144-FDD DISK:1.44 FDD PENT CWD 1
131 MPM4-8M MEM:8MB EDO MEM EXP 2
132 HDI1200-4 DISK:1.2GB 4500RPM IDE 1
133 ETHIO0-PCI LAN HW:10M ETHERNET PCI 1
134 EVG142-COL DISPLAY:14" COLOR 1
135 KBMI04-SS ACC:104 SS KYBD/M/LC 1
136 PCK104-SKB KEYBD:SPACE SAVER 1
137 PWM1-PS2 MOUSE:2 BUTTON MOUSE/PS2 1
138 B25-LC PWR CORD:LINE CORD 1
139 PCI300-SUN CRTL:ULTRA NARROW SCSI 1
140 CDR1200-SI DISK:12-SP INT SCSI CDR 1
141 DU4230 PRINTER:30P SPX EIGS 1
142 DU4000 PRT ACC:STAND 1
143 15-5010-101 PRINTER CABLE 1
144 IS7-IMP SERVICES
145 ICS-47
146 60 MONTHS SURETY
</TABLE>
LESSOR:
UNISYS LEASING CORPORATION
BY: /s/ Christopher J. Queen
TITLE: Christoper J. Queen
Director
Region and Healthcare Syndications
LESSEE:
Pointe Financial Corporation
BY: /s/ R. Carl Palmer, Jr.
TITLE: President
UNISYS LEASING CORPORATION
NOTICE AND ACKNOWLEDGMENT OF SALE OF RENTAL PAYMENTS
AND
ASSIGNMENT OF LEASE
Unisys Leasing Corporation ("ULC") and Pointe Financial Corporation
"Lessee" have entered into a Master Equipment Lease Agreement or
Conditional Sales Contract Number 9016 dated May 7, 1997 under which Lessee has,
or will have prior to its execution hereof, leased Equipment (the "Equipment)
described in the Lease or Contract Schedule Number 01 dated May 7, 1997 (such
Agreement or Contract and Schedules are hereinafter collectively called the
"Agreements").
Lessee is hereby notified that ULC has assigned its interest in the Agreement,
in the leased Equipment, and in the rental payments and
all other amounts provided for under the Agreement.
Lessee is hereby directed to pay any and all rental payments and other amounts
due with respect to which ULC's assignee ("Assignee") renders an invoice, at the
address set out immediately below or as otherwise directed in said invoice:
"ASSIGNEE"
Leasetec Corporation
1401 Pearl Street
Boulder, Colorado 80302
By signing this Notice and Acknowledgment, Lessee agrees that it will pay all
amounts due under the Agreement as direced in the invoice without any set-off or
deduction whatsoever notwithstanding any defect in, damage to, or requisition of
any of the property leased under the Agreement, any other similar or dissimilar
event, any defense, set-off, counterclaim or recoupment arising out of any claim
against ULC or Assignee.
Lessee further agrees that Assignee has not assumed any duties under the
Agreement or made any warranties whatsoever as to the Agreement or the
Equipment. Lessee agrees that no change may be made to the Lease without the
prior written consent of Assignee.
In signing this, Lessee warrants that its representations and warranties under
the Lease are true and correct on the date hereof.
DATE: _____
LESSEE: Pointe Financial Corporation
BY: /s/ R. Carl Palmer, Jr.
NAME PRINTED: R. CARL PALMER, JR.
TITLE: PRESIDENT
Exhibit 21.1
Subsidiaries of the Registrant
Pointe Bank, a Florida chartered commercial bank.
Pointe Financial Services, Inc., a Florida corporation.
Exhibit 23.2
Accountants' Consent
The Board of Directors
Pointe Financial Corporation
Boca Raton, Florida:
We consent to the use of our report dated February 14, 1998 relating
to the consolidated balance sheets as of December 31, 1997 and
1996 and the related consolidated statements of operations,
stockholders' equity and cash flows for each of the years in the
three-year period ended December 31, 1997 of Pointe Financial
Corporation and to the use of our name under the caption of
"Experts" in the Registration Statement on Form SB-2 of Pointe
Financial Corporation.
HACKER, JOHNSON, COHEN & GRIEB PA
Tampa, Florida
April 9, 1998
April 9, 1998
Via Modem
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Pointe Financial Corporation
Registration Statement on Form SB-2
Gentlemen:
On behalf of our client, Pointe Financial Corporation (the "Company"),
and pursuant to the applicable provisions of Regulation S-T,
transmitted herewith is an electronic copy of the Company's
Registration Statement on Form SB-2, including exhibits thereto.
A wire transfer in the amount of $3,610.00 for the required filing
fee was transmitted in payment of the application filing fee.
Please call the undersigned at (305) 442-4994, extension #25 if you
have any questions or comments regarding the foregoing.
Very truly yours,
Thomas R. Blake
TRB/cs
<TABLE> <S> <C>
<ARTICLE> 9
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-END> DEC-31-1997
<CASH> 2,272
<INT-BEARING-DEPOSITS> 303
<FED-FUNDS-SOLD> 0
<TRADING-ASSETS> 0
<INVESTMENTS-HELD-FOR-SALE> 22,745
<INVESTMENTS-CARRYING> 7,764
<INVESTMENTS-MARKET> 7,478
<LOANS> 106,501
<ALLOWANCE> 848
<TOTAL-ASSETS> 147,840
<DEPOSITS> 124,995
<SHORT-TERM> 6,191
<LIABILITIES-OTHER> 2,809
<LONG-TERM> 0
<COMMON> 8
0
1
<OTHER-SE> 13,836
<TOTAL-LIABILITIES-AND-EQUITY> 147,840
<INTEREST-LOAN> 9,427
<INTEREST-INVEST> 2,402
<INTEREST-OTHER> 103
<INTEREST-TOTAL> 11,932
<INTEREST-DEPOSIT> 5,368
<INTEREST-EXPENSE> 6,329
<INTEREST-INCOME-NET> 5,603
<LOAN-LOSSES> 80
<SECURITIES-GAINS> 29
<EXPENSE-OTHER> 5,471
<INCOME-PRETAX> 1,464
<INCOME-PRE-EXTRAORDINARY> 914
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 914
<EPS-PRIMARY> .68
<EPS-DILUTED> .62
<YIELD-ACTUAL> 3
<LOANS-NON> 2,496
<LOANS-PAST> 496
<LOANS-TROUBLED> 0
<LOANS-PROBLEM> 131
<ALLOWANCE-OPEN> 777
<CHARGE-OFFS> 58
<RECOVERIES> 49
<ALLOWANCE-CLOSE> 848
<ALLOWANCE-DOMESTIC> 848
<ALLOWANCE-FOREIGN> 0
<ALLOWANCE-UNALLOCATED> 0
</TABLE>
