FORM 10-K
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
(Mark One)
[X]ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 [FEE REQUIRED]
For the fiscal year ended December 31, 1993 or
[ ]TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 [NO FEE REQUIRED]
For the transition period from N/A to N/A
Commission file number 0-10140
CVB FINANCIAL CORP.
(Exact name of registrant as specified in its charter)
California 95-3629339
State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization
701 N. Haven Avenue, Suite 350
Ontario, California 91764
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code (909) 980-4030
Securities registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which registered
Common Stock American Stock Exchange
Securities registered pursuant to Section 12(g) of the Act: None
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the Securities
Exchange Act of 1934 during the preceding 12 months (or for such
shorter period that the Registrant was required to file such reports),
and (2) has been subject to such filing requirements for the past 90
days Yes X No ___
Indicate by check mark if disclosure of delinquent filers pursuant
to Item 405 of Regulation S-K is not contained herein, and will not be
contained, to the best of registrant's knowledge, in definitive proxy or
information statements incorporated by reference in Part III of this
Form 10-K or any amendment to this Form 10-K. [ X ]
As of March 15, 1994, the aggregate market value of the common
stock held by non-affiliates of the registrant was approximately
$86,493,700.
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Number of shares of common stock of the registrant outstanding as
of March 15, 1994: 7,283,682.
The following document is incorporated by reference herein:
Definitive Proxy Statement for Part III of Form 10-K
the Annual Meeting of Stockholders
which will be filed within 120
days of the fiscal year ended
December 31, 1993
THIS REPORT INCLUDES A TOTAL OF 283 PAGES
EXHIBIT INDEX ON PAGE 84
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PART I
ITEM 1. BUSINESS
CVB Financial Corp.
CVB Financial Corp. (referred to herein on an unconsolidated
basis as "CVB" and on a consolidated basis as the "Company") is a
bank holding company incorporated in California on April 27, 1981
and registered under the Bank Holding Company Act of 1956, as
amended. The Company commenced business on December 30, 1981
when, pursuant to a reorganization, it acquired all of the voting
stock of Chino Valley Bank (the "Bank"), which is the Company's
principal asset. The Company has two other subsidiaries,
Community Trust Deed Services ("Community") and Premier Results,
Inc. ("Premier").
The Company's principal business is to serve as a holding
company for the Bank and Community and for other banking or
banking related subsidiaries which the Company may establish or
acquire. Although Premier offered item and other processing
services, all of its assets were sold to Electronic Data Systems
Corporation on December 31, 1992. See "Item 1. BUSINESS
- - Premier Results, Inc." The Company has not engaged in any
other activities to date. As a legal entity separate and
distinct from its subsidiaries, CVB's principal source of funds
is and will continue to be dividends paid by and other funds
advanced from primarily the Bank. Legal limitations are imposed
on the amount of dividends that may be paid and loans that may
be made by the Bank to CVB. See "Item 1. BUSINESS - Supervision
and Regulation - Restrictions on Transfers of Funds to CVB by the
Bank." At December 31, 1993, the Company had $687.4 million in
total consolidated assets, $442.1 million in total consolidated
net loans and $596.0 million in total consolidated deposits.
The principal executive offices of the Company and the Bank
are located at 701 North Haven Avenue, Suite 350, Ontario,
California.
Chino Valley Bank
The Bank was incorporated under the laws of the State of
California on December 26, 1973, was licensed by the California
State Banking Department and commenced operations as a California
state chartered bank on August 9, 1974. The Bank's deposit
accounts are insured under the Federal Deposit Insurance Act up
to applicable limits. Like many other state chartered banks in
California, the Bank is not a member of the Federal Reserve
System. At December 31, 1993, the Bank had $686.7 million in
assets, $442.1 million in net loans and $596.5 million in
deposits.
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The Bank currently has 16 banking offices located in San
Bernardino County, Riverside County and the eastern portion of
Los Angeles County in Southern California. Of the 16 offices,
the Bank opened seven as de novo branches and acquired the other
nine in acquisition transactions. Since 1990, the Bank has added
four offices, two in 1990 and two in 1993.
On March 5, 1993, the Company completed its acquisition of
Fontana First National Bank, a one-branch bank located in
Fontana, California ("Fontana"), for an aggregate cash purchase
price of $5.0 million. As of December 31, 1992, Fontana had
total assets of $26.3 million, net loans of $18.5 million,
deposits of $22.8 million and shareholders' equity of $3.4
million. For the year ended December 31, 1992, Fontana reported
net income of $74,000.
On October 21, 1993, the Bank entered into an agreement with
the Federal Deposit Insurance Corporation for the purchase of
certain assets and the assumption of deposits and other
liabilities of the failed Mid City Bank. The agreement provided
the Bank with the ability to re-price the deposits assumed within
specific time frames, regardless of the original terms of the
deposit. Net of the deposits that were re-priced and allowed to
withdraw, the Bank assumed approximately $20.0 million in
deposits, $2.0 million in investments, and $18.0 million in
loans.
Through its network of banking offices, the Bank emphasizes
personalized service combined with offering a full range of
banking services to businesses, professionals and individuals
located in the service areas of its offices. Although the Bank
focuses the marketing of its services to small- and medium-sized
businesses, a full range of retail banking services are made
available to the local consumer market.
The Bank offers a wide range of deposit instruments. These
include checking, savings, money market and time certificates of
deposit for both business and personal accounts. The Bank also
serves as a federal tax depository for its business customers.
The Bank also provides a full complement of lending
products, including commercial, installment and real estate
loans. Commercial products include lines of credit and other
working capital financing, accounts receivable lending and
letters of credit. Financing products for individuals include
automobile financing, lines of credit and home improvement and
home equity lines of credit. Real estate loans include mortgage
and construction loans.
The Bank also offers a wide range of specialized services
designed for the needs of its commercial accounts. These
services include cash management systems for monitoring cash
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flow, a credit card program for merchants, courier pick-up and
delivery, payroll services and electronic funds transfers by way
of domestic and international wires and automated clearing house.
The Bank also makes available investment products to customers,
including a full array of fixed income vehicles and a program
pursuant to which it places its customers' funds in federally
insured time certificates of deposit of other institutions. The
Bank does not operate a trust department; however, it makes
arrangements with a correspondent institution to offer trust
services to its customers on request.
Community Trust Deed Services
The Company owns 100% of the voting stock of Community,
which has one office. Community's services, which are provided to
the Bank and non-affiliated persons, include preparing and filing
notices of default, reconveyances and related documents and
acting as a trustee under deeds of trust. At present, the
assets, revenues and earnings of Community are not material in
amount as compared to the Bank.
Premier Results, Inc.
The Company owns 100% of the voting stock of Premier.
Through Premier, the Company offered item processing services to
the Bank and other financial institutions, in addition to
statement reconcilement, bookkeeping, check filing, lock box,
microfilm development and on-site printing. On December 31,
1992, the Company sold all of the assets of Premier to Electronic
Data Systems Corporation. The assets, revenues and earnings of
Premier were not material in amount as compared to the Bank.
Economic Environment in the Bank's Market Area
The Bank concentrates on marketing to, and serving the needs
of, businesses, professionals and individuals in San Bernardino,
Riverside, northern Orange and eastern Los Angeles counties. The
general economy in Southern California, including the Bank's
market area, and particularly the real estate market, is
suffering from the effects of a prolonged recession that has
negatively impacted upon the ability of certain borrowers to
perform their obligations to their lending institutions,
including the Bank.
According to The UCLA Business Forecast For California, December
1993 Report (the "UCLA Report"), the current recession in California
is expected to continue until at least the second half of 1994,
despite the presence of a moderate national economic recovery. The
UCLA Report attributes the length and depth of the California
recession, which began in 1990, to a number of negative economic
factors, including permanent cutbacks in the California defense
industries and military base closings, a cyclical downturn in
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California residential real estate construction, lower rates on
international trade growth as a result of the worldwide recession and
the effects on employment of an increased global emphasis on cost
controls and downsizing. The statewide unemployment rate in November
1993 was 8.6%, compared with the national average of 6.4%. The UCLA
Report notes that while statewide unemployment figures have improved
recently, this was due to a decline in the size of the labor force
and that total CalifoRnia employment has declined. Nevertheless, the
UCLA Report expects a weak job recovery to begin in California during
the second half of 1994, approaching a normal growth rate over the
next four years. Based on its assessment of recent economic reports
and the current economic environment in the Company's market areas,
management believes that the California recession may continue beyond
1994.
The overall general economic conditions and the real estate
market in Southern California have had and may continue to have an
adverse impact on certain of the Bank's borrowing customers and
their debt service capacities. The Bank's nonperforming assets
increased from $19.0 million at year end 1992 to $23.0 million at
year end 1993. While management believes that the allowance for
credit losses at December 31, 1993 was adequate to absorb the
then known or inherent losses in the loan portfolio, declining
real estate values in Southern California have reduced the value
of the real estate collateral that secures certain of the Bank's
loans and increased the loan-to-value ratio of those credits. As
of December 31, 1993, the Bank had approximately $322.9 million
in loans secured by real estate located in Southern California.
For a further discussion of the Bank's nonperforming assets and
allowance for possible credit losses, see "Item 7. MANAGEMENT'S
DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
OPERATIONS."
Competition
The Bank faces substantial competition for deposits and
loans throughout its market areas. The primary factors in
competing for deposits are interest rates, personalized services,
the quality and range of financial services, convenience of
office locations and office hours. Competition for deposits
comes primarily from other commercial banks, savings
institutions, credit unions, money market and mutual funds and
other investment alternatives. The primary factors in competing
for loans are interest rates, loan origination fees, the quality
and range of lending services and personalized services.
Competition for loans comes primarily from other commercial
banks, savings institutions, mortgage banking firms and other
financial intermediaries. The Bank faces competition for
deposits and loans throughout its market areas not only from
local institutions but also from out-of-state financial
intermediaries which have opened loan production offices or which
solicit deposits in the Bank's market areas. Many of the financial
intermediaries operating in the Bank's market areas offer certain
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services, such as trust, investment and international banking
services, which the Bank does not offer directly. Additionally,
banks with larger capitalization and financial intermediaries not
subject to bank regulatory restrictions have larger lending
limits and are thereby able to serve the needs of larger
customers. The Bank has 16 offices located in San Bernardino,
Riverside, northern Orange and eastern Los Angeles counties.
Neither the deposits nor loans of any office of the Bank exceed
1% of the aggregate loans or deposits of all financial
intermediaries located in the counties in which such offices are
located.
Employees
At December 31, 1993, CVB, the Bank, Community and Premier
employed 311 persons, 200 on a full-time and 111 on a part-time
basis. The Company believes that its employee relations are
satisfactory.
Effect of Governmental Policies and Recent Legislation
Banking is a business that depends on rate differentials.
In general, the difference between the interest rate paid by the
Bank on its deposits and its other borrowings and the interest
rate received by the Bank on loans extended to its customers and
securities held in the Bank's portfolio comprise the major
portion of the Company's earnings. These rates are highly
sensitive to many factors that are beyond the control of the
Bank. Accordingly, the earnings and growth of the Company are
subject to the influence of local, domestic and foreign economic
conditions, including recession, unemployment and inflation.
The commercial banking business is not only affected by
general economic conditions but is also influenced by the
monetary and fiscal policies of the federal government and the
policies of regulatory agencies, particularly the Federal Reserve
Board. The Federal Reserve Board implements national monetary
policies (with objectives such as curbing inflation and combating
recession) by its open-market operations in United States
Government securities, by adjusting the required level of
reserves for financial intermediaries subject to its reserve
requirements and by varying the discount rates applicable to
borrowings by depository institutions. The actions of the
Federal Reserve Board in these areas influence the growth of bank
loans, investments and deposits and also affect interest rates
charged on loans and paid on deposits. The nature and impact of
any future changes in monetary policies cannot be predicted.
From time to time, legislation is enacted which has the
effect of increasing the cost of doing business, limiting or
expanding permissible activities or affecting the competitive
balance between banks and other financial intermediaries.
Proposals to change the laws and regulations governing the
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operations and taxation of banks, bank holding companies and
other financial intermediaries are frequently made in Congress,
in the California legislature and before various bank regulatory
and other professional agencies. The likelihood of any major
changes and the impact such changes might have on the Company are
impossible to predict. Certain of the potentially significant
changes which have been enacted and proposals which have been
made recently are discussed below.
Federal Deposit Insurance Corporation Improvement Act of 1991
On December 19, 1991, the Federal Deposit Insurance
Corporation Improvement Act of 1991 (the "FDIC Improvement Act")
was enacted into law. Set forth below is a brief discussion of
certain portions of this law and implementing regulations that
have been adopted or proposed by the Federal Reserve Board, the
Comptroller of the Currency, the Office of Thrift Supervision and
the FDIC (collectively, the "federal banking agencies").
BIF Recapitalization. The FDIC Improvement Act provides the
FDIC with three additional sources of funds to protect deposits
insured by the Bank Insurance Fund (the "BIF") administered by
the FDIC. The FDIC is authorized to borrow up to $30 billion
from the U.S. Treasury; borrow from the Federal Financing Bank up
to 90% of the fair market value of assets of institutions
acquired by the FDIC as receiver; and borrow from financial
intermediaries that are members of the BIF. Any borrowings not
repaid by asset sales are to be repaid through insurance premiums
assessed to member institutions. Such premiums must be
sufficient to repay any borrowed funds within 15 years and
provide insurance fund reserves of $1.25 for each $100 of insured
deposits.
Improved Examinations. All insured depository institutions, except
certain small, well managed and, well capitalized institutions, must
undergo a full-scope, on-site examination by their appropriate federal
banking agency at least once every 12 months. The cost of examinations of
insured depository institutions and any affiliates may be assessed by the
appropriate federal banking agency against each institution or affiliate as
it deems necessary or appropriate.
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Standards for Safety and Soundness. Pursuant to the FDIC Improvement
Act, the federal banking agencies have issued proposed safety and soundness
standards on matters such as loan underwriting and documentation, asset
quality, earnings, internal controls and audit systems, interest rate risk
exposure and compensation and other employee benefits. The proposals
establish, among other things, the maximum ratio of classified assets to
total capital plus ineligible allowance at 1.0 and the minimum level of
earnings sufficient to absorb losses without impairing capital. The
proposals provide that a bank's earnings are sufficient to absorb losses
without impairing capital if the bank is in compliance with minimum capital
requirements and the bank would, if its net income or loss over the last
four quarters continued over the next four quarters, remain in compliance
with minimum capital requirements. Any institution which fails to comply
with these standards must submit a compliance plan. Failure to submit an
acceptable plan or to comply with an approved plan will subject the
institution to further enforcement action. No assurance can be given as to
the final form of the proposed regulations or, if adopted, the impact of
such regulations on the Company and the Bank.
In December 1992, the federal banking agencies issued final
regulations prescribing uniform guidelines for real estate
lending. The regulations, which became effective on March 19,
1993, require insured depository institutions to adopt written
policies establishing standards, consistent with such guidelines,
for extensions of credit secured by real estate. The policies
must address loan portfolio management, underwriting standards
and loan-to-value limits that do not exceed the supervisory
limits prescribed by the regulations.
Prompt Corrective Regulatory Action. The FDIC Improvement Act
requires each federal banking agency to take prompt corrective
action to resolve the problems of insured depository institutions
that fall below one or more prescribed minimum capital ratios.
The purpose of this law is to resolve the problems of insured
depository institutions at the least possible long-term cost to
the appropriate deposit insurance fund.
The law required each federal banking agency to promulgate
regulations defining the following five categories in which an
insured depository institution will be placed, based on the level
of its capital ratios: well capitalized (significantly exceeding
the required minimum capital requirements), adequately
capitalized (meeting the required capital requirements),
undercapitalized (failing to meet any one of the capital
requirements), significantly undercapitalized (significantly
below any one capital requirement) and critically
undercapitalized (failing to meet all capital requirements).
In September 1992, the federal banking agencies issued
uniform final regulations implementing the prompt corrective
action provisions of the FDIC Improvement Act. Under the
regulations, an insured depository institution will be deemed to
be:
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o "well capitalized" if it (i) has a total risk-based
capital ratio of 10% or greater, a Tier 1 risk-based
capital ratio of 6% or greater and a leverage ratio of
5% or greater and (ii) is not subject to an order,
written agreement, capital directive or prompt
corrective action directive to meet and maintain a
specific capital level for any capital measure;
o "adequately capitalized" if it has a total risk-
based capital ratio of 8% or greater, a Tier 1 risk-
based capital ratio of 4% or greater and a leverage
ratio of 4% or greater (or a leverage ratio of 3% or
greater if the institution is rated composite 1 under
the applicable regulatory rating system in its most
recent report of examination);
o "undercapitalized" if it has a total risk-based
capital ratio that is less than 8%, a Tier 1 risk-
based capital ratio that is less than 4% or a leverage
ratio that is less than 4% (or a leverage ratio that
is less than 3% if the institution is rated composite
1 under the applicable regulatory rating system in its
most recent report of examination);
o "significantly undercapitalized" if it has a total
risk-based capital ratio that is less than 6%, a Tier
1 risk-based capital ratio that is less than 3% or a
leverage ratio that is less than 3%; and
o "critically undercapitalized" if it has a ratio of
tangible equity to total assets that is equal to or
less than 2%.
An institution that, based upon its capital levels, is
classified as well capitalized, adequately capitalized or
undercapitalized may be reclassified to the next lower capital
category if the appropriate federal banking agency, after notice
and opportunity for hearing, (i) determines that the institution
is in an unsafe or unsound condition or (ii) deems the institution
to be engaging in an unsafe or unsound practice and not to have
corrected the deficiency. At each successive lower capital
category, an insured depository institution is subject to more
restrictions and federal banking agencies are given less
flexibility in deciding how to deal with it.
The law prohibits insured depository institutions from
paying management fees to any controlling persons or, with
certain limited exceptions, making capital distributions if after
such transaction the institution would be undercapitalized. If
an insured depository institution is undercapitalized, it will be
closely monitored by the appropriate federal banking agency,
subject to asset growth restrictions and required to obtain prior
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regulatory approval for acquisitions, branching and engaging in
new lines of business. Any undercapitalized depository
institution must submit an acceptable capital restoration plan to
the appropriate federal banking agency 45 days after becoming
undercapitalized. The appropriate federal banking agency cannot
accept a capital plan unless, among other things, it determines
that the plan (i) specifies the steps the institution will take
to become adequately capitalized, (ii) is based on realistic
assumptions and (iii) is likely to succeed in restoring the
depository institution's capital. In addition, each company
controlling an undercapitalized depository institution must
guarantee that the institution will comply with the capital plan
until the depository institution has been adequately capitalized
on an average basis during each of four consecutive calendar
quarters and must otherwise provide adequate assurances of
performance. The aggregate liability of such guarantee is
limited to the lesser of (a) an amount equal to 5% of the
depository institution's total assets at the time the institution
became undercapitalized or (b) the amount which is necessary to
bring the institution into compliance with all capital standards
applicable to such institution as of the time the institution
fails to comply with its capital restoration plan. Finally, the
appropriate federal banking agency may impose any of the
additional restrictions or sanctions that it may impose on
significantly undercapitalized institutions if it determines that
such action will further the purpose of the prompt corrective
action provisions.
An insured depository institution that is significantly
undercapitalized, or is undercapitalized and fails to submit, or
in a material respect to implement, an acceptable capital
restoration plan, is subject to additional restrictions and
sanctions. These include, among other things: (i) a forced sale
of voting shares to raise capital or, if grounds exist for
appointment of a receiver or conservator, a forced merger; (ii)
restrictions on transactions with affiliates; (iii) further
limitations on interest rates paid on deposits; (iv) further
restrictions on growth or required shrinkage of assets; (v)
modification or termination of specified activities;
(vi) replacement of directors or senior executive officers,
subject to certain grandfather provisions for those elected prior
to enactment of the FDIC Improvement Act; (vii) prohibitions on
the receipt of deposits from correspondent institutions;
(viii) restrictions on capital distributions by the holding
companies of such institutions; (ix) required divestiture of
subsidiaries by the institution; or (x) other restrictions as
determined by the appropriate federal banking agency. Although
the appropriate federal banking agency has discretion to
determine which of the foregoing restrictions or sanctions it
will seek to impose, it is required to force a sale of voting
shares or merger, impose restrictions on affiliate transactions
and impose restrictions on rates paid on deposits unless it
determines that such actions would not further the purpose of the
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prompt corrective action provisions. In addition, without the
prior written approval of the appropriate federal banking agency,
a significantly undercapitalized institution may not pay any
bonus to its senior executive officers or provide compensation to
any of them at a rate that exceeds such officers' average rate of
base compensation during the 12 calendar months preceding the
month in which the institution became undercapitalized.
Further restrictions and sanctions are required to be
imposed on insured depository institutions that are critically
undercapitalized. For example, a critically undercapitalized
institution generally would be prohibited from engaging in any
material transaction other than in the ordinary course of
business without prior regulatory approval and could not, with
certain exceptions, make any payment of principal or interest on
its subordinated debt beginning 60 days after becoming critically
undercapitalized. Most importantly, however, except under
limited circumstances, the appropriate federal banking agency,
not later than 90 days after an insured depository institution
becomes critically undercapitalized, is required to appoint a
conservator or receiver for the institution. The board of
directors of an insured depository institution would not be
liable to the institution's shareholders or creditors for
consenting in good faith to the appointment of a receiver or
conservator or to an acquisition or merger as required by the
regulator.
As of December 31, 1993, the Bank had a total risk-based
capital ratio of 13.0%, a Tier 1 risk-based ratio of 11.7% and a
leverage ratio of 8.3%.
Other Items. The FDIC Improvement Act also, among other things,
(i) limits the percentage of interest paid on brokered deposits
and limits the unrestricted use of such deposits to only those
institutions that are well capitalized; (ii) requires the FDIC to
charge insurance premiums based on the risk profile of each
institution; (iii) eliminates "pass through" deposit insurance
for certain employee benefit accounts unless the depository
institution is well capitalized or, under certain circumstances,
adequately capitalized; (iv) prohibits insured state chartered
banks from engaging as principal in any type of activity that is
not permissible for a national bank unless the FDIC permits such
activity and the bank meets all of its regulatory capital
requirements; (v) directs the appropriate federal banking agency
to determine the amount of readily marketable purchased mortgage
servicing rights that may be included in calculating such
institution's tangible, core and risk-based capital; and (vi)
provides that, subject to certain limitations, any federal
savings association may acquire or be acquired by any insured
depository institution.
The FDIC has adopted final regulations implementing the
risk-based premium system mandated by the FDIC Improvement Act.
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Under the transitional regulations, which cover the assessment
periods commencing on and after January 1, 1994, insured
depository institutions are required to pay insurance premiums
within a range of 23 cents per $100 of deposits to 31 cents per
$100 of deposits depending on their risk classification. To
determine the risk-based assessment for each institution, the
FDIC will categorize an institution as well capitalized,
adequately capitalized or undercapitalized based on its capital
ratios. A well capitalized institution is one that has at least
a 10% total risk-based capital ratio, a 6% Tier 1 risk-based
capital ratio and a 5% Tier 1 leverage capital ratio. An
adequately capitalized institution will have at least an 8% total
risk-based capital ratio, a 4% Tier 1 risk-based capital ratio
and a 4% Tier 1 leverage capital ratio. An undercapitalized
institution will be one that does not meet either of the above
definitions. The FDIC will also assign each institution to one
of three supervisory subgroups based upon reviews by the
institution's primary federal or state regulator, statistical
analyses of financial statements and other information relevant
to evaluating the risk posed by the institution. As a result,
the assessment rates within each of three capital categories will
be as follows (expressed as cents per $100 of deposits):
Supervisory Subgroup
A B C
Well capitalized 23 26 29
Adequately capitalized 26 29 30
Undercapitalized 29 30 31
In addition, the FDIC has issued final regulations
implementing provisions of the FDIC Improvement Act relating to
powers of insured state banks. The regulations prohibit, subject
to certain specified exceptions, insured state banks from making
equity investments of a type, or in an amount, that are not
permissible for national banks. In general, equity investments
include equity securities, partnership interests and equity interests
in real estate. Under the final regulations, non-permissible
investments must be divested by no later than December 19, 1996.
The FDIC has also issued final regulations which prohibit
insured state banks from engaging as principal in any activity
not permissible for a national bank, without FDIC approval. The
regulations also provide that, subject to certain specified
exceptions, subsidiaries of insured state banks may not engage
as principal in any activity that is not permissible for a
subsidiary of a national bank, without FDIC approval.
The impact of the FDIC Improvement Act on the Company and
the Bank is uncertain, especially since many of the regulations
promulgated thereunder have been only recently adopted and
certain of the law's provisions still need to be defined through
future regulatory action. Certain provisions, such as the
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recently adopted real estate lending standards and the
limitations on investments and powers of state banks and the
rules to be adopted governing compensation, fees and other
operating policies, may affect the way in which the Bank conducts
its business, and other provisions, such as those relating to the
establishment of the risk-based premium system, may adversely
affect the Bank's results of operations.
Capital Adequacy Guidelines
The Federal Reserve Board and the FDIC have issued
guidelines to implement risk-based capital requirements. The
guidelines are intended to establish a systematic analytical
framework that makes regulatory capital requirements more
sensitive to differences in risk profiles among banking
organizations, takes off-balance-sheet financial instruments into
account in assessing capital adequacy and minimizes disincentives
to holding liquid, low-risk assets. Under these guidelines,
assets and credit equivalent amounts of off-balance-sheet
financial instruments, such as letters of credit and long-term
outstanding loan commitments, are assigned to one of several risk
categories, which range from 0% for credit risk-free assets, such
as cash and certain U.S. government securities, to 100% for
relatively high-risk assets, such as loans and investments in
fixed assets, premises and other real estate owned. The
aggregated dollar amount of each category is then multiplied by
the risk-weight associated with that category. The resulting
weighted values from each of the risk categories are then added
together to determine the total risk-weighted assets.
Beginning on December 31, 1992, the guidelines require a
minimum ratio of qualifying total capital to risk-weighted assets
of 8%, of which at least 4% must consist of Tier 1 capital.
Higher risk-based ratios are required to be considered well
capitalized under the prompt corrective action provisions of the
FDIC Improvement Act. See "Item 1. BUSINESS - Effect of
Governmental Policies and Recent Legislation - Federal Deposit
Insurance Improvement Act of 1991 - Prompt Corrective Regulatory
Action."
A banking organization's qualifying total capital consists
of two components: Tier 1 capital (core capital) and Tier 2
capital (supplementary capital). Tier 1 capital consists
primarily of common stock, related surplus and retained earnings,
qualifying noncumulative perpetual preferred stock (plus, for
bank holding companies, qualifying cumulative perpetual preferred
stock in an amount up to 25% of Tier 1 capital) and minority
interests in the equity accounts of consolidated subsidiaries.
Intangibles, such as goodwill, are generally deducted from Tier 1
capital; however, purchased mortgage servicing rights and
purchase credit card relationships may be included, subject to
certain limitations. At least 50% of the banking organization's
total regulatory capital must consist of Tier 1 capital.
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Tier 2 capital may consist of (i) the allowance for possible
loan and lease losses in an amount up to 1.25% of risk-weighted
assets; (ii) cumulative perpetual preferred stock and long-term
preferred stock (which for bank holding companies must have an
original maturity of 20 years or more) and related surplus;
(iii) hybrid capital instruments (instruments with
characteristics of both debt and equity), perpetual debt and
mandatory convertible debt securities; and (iv) eligible term
subordinated debt and intermediate-term preferred stock with an
original maturity of five years or more, including related
surplus, in an amount up to 50% of Tier 1 capital. The inclusion
of the foregoing elements of Tier 2 capital are subject to
certain requirements and limitations of the federal banking
agencies.
The Federal Reserve Board and the FDIC have also adopted a
minimum leverage ratio of Tier 1 capital to average total assets
of 3% for the highest rated banks. This leverage ratio is only a
minimum. Institutions experiencing or anticipating significant
growth or those with other than minimum risk profiles are
expected to maintain capital well above the minimum level.
Furthermore, higher leverage ratios are required to be considered
well capitalized or adequately capitalized under the prompt
corrective action provisions of the FDIC Improvement Act. See
"Item 1. BUSINESS - Effect of Governmental Policies and Recent
Legislation - Federal Deposit Insurance Corporation Improvement
Act of 1991 -Prompt Corrective Regulatory Action."
As of December 31, 1993, the Company and the Bank had total
risk-based capital ratios of 13.1% and 13.0%, Tier 1 risk-based
capital ratios of 11.8% and 11.7% and leverage ratios of 8.4% and
8.3%, respectively.
In addition, the federal banking agencies have issued
proposed rules, in accordance with the FDIC Improvement Act,
seeking public comment on methods for measuring interest rate
risk, and two alternative methods for determining what amount of
additional capital, if any, a bank may be required to have for
interest rate risk. The Company cannot yet determine whether
such proposals will be adopted or the impact of such regulations,
if adopted, on the Company and the Bank.
The federal banking agencies issued a statement advising
that, for regulatory purposes, federally supervised banks and
savings associations should report deferred tax assets in
accordance with Statement of Financial Accounting Standards
("SFAS") No. 109, "Accounting for Income Taxes," beginning in
1993. See "Item 1. BUSINESS -Effect of Governmental Policies and
Recent Legislation - Accounting Changes." However, the federal
banking agencies have advised that they will place a limit on the
amount of deferred tax assets that is allowable in computing an
institution's regulatory capital. Deferred tax assets that can be
15
realized from taxes paid in prior carryback years and from the
future reversal of temporary differences would generally not be
limited. Deferred tax assets that can only be realized through
future taxable earnings, including the implementation of a tax
planning strategy, would be limited for regulatory capital
purposes to the lesser of (i) the amount that can be realized
within one year of the quarter-end report date or (ii) 10% of
Tier 1 capital. The amount of deferred taxes in excess of this
limit, if any, would be deducted from Tier 1 capital and total
assets in regulatory capital calculations. The federal banking
agencies have notified institutions that their capital rules will
be amended to reflect this change. Management does not expect
implementation of this proposal to have a material impact on the
Bank's regulatory capital levels.
The federal banking agencies issued a proposal in January
1994 seeking public comment on whether to amend their capital
definitions of leverage and risk based capital to conform such
definitions to the recently issued SFAS No. 115, "Accounting for
Certain Investments in Debt and Equity Securities," which requires
an institution to recognize as a separate component of stockholders'
equity the amount of unrealized gains and losses on securities
that are deemed to be "available for sale." See "Business -- Effect
of Government Policies and Recent Legislation -- Accounting Changes."
Accounting Changes
In February 1992, the Financial Accounting Standards Board
("FASB") issued SFAS No. 109, which supersedes SFAS No. 96. SFAS
No. 109 is effective for fiscal years beginning after
December 31, 1992, or earlier at the Company's option. SFAS
No. 109 employs an asset and liability approach in accounting for
income taxes payable or refundable at the date of the financial
statements as a result of all events that have been recognized in
the financial statements and as measured by the provisions of
enacted tax laws. The Company adopted SFAS No. 109 in 1992,
elected not to restate prior years and has determined that the
cumulative effect of the implementation was immaterial.
In May 1993, the FASB issued SFAS No. 114, "Accounting by
Creditors for Impairment of a Loan" ("SFAS No. 114"). Under the
provisions of SFAS No. 114, a loan is considered impaired when,
based on current information and events, it is probable that a
creditor will be unable to collect all amounts due according to
the contractual terms of the loan agreement. SFAS No. 114 requires
creditors to measure impairment of a loan based on the present
value of expected future cash flows discounted at the loan's
effective interest rate, market prices (when available) or the fair
market value of collateral for a collateral-dependent loan. If the
measure of the impaired loan is less than the recorded investment in
the loan, a creditor shall recognize an impairment by recreating a
valuation allowance with a corresponding charge to bad debt expense.
This statement also applies to restructured loans and changes the
16
definition of in-substance foreclosures to apply only to the loans
where the creditor has taken physical possession of the borrower's
assets. SFAS No. 114 applies to financial statements for fiscal years
beginning after December 15, 1994. Earlier implementation is
permitted. The Company is currently evaluating the impact of the
statement on its results of operations and financial position but
is unlikely to implement the statement early.
In December 1990, the FASB issued SFAS No. 106, "Employers' Accounting
for Post-Retirement Benefits Other Than Pensions" ("SFAS No. 106"),
effective for fiscal years beginning after December 15, 1992. In November
1992, the FASB issued SFAS No. 112, "Employers' Accounting for Post-
Employment Benefits" ("SFAS No. 112") effective for fiscal years beginning
after December 15, 1993. SFAS No. 106 and SFAS No. 112 focus primarily on
post-retirement health care benefits. The Company does not provide post-
retirement benefits and SFAS No. 106 and SFAS No. 112 will have no impact
on net income in 1994.
17
In May 1993, the FASB issued SFAS No. 115, "Accounting for Certain
Investments in Debt and Equity Securities," addressing the accounting and
reporting for investments in equity securities that have readily
determinable fair values and for all investments in debt securities. Those
investments would be classified in three categories and accounted for as
follows: (i) debt and equity securities that the entity has the positive
intent and ability to hold to maturity would be classified as "held to
maturity" and reported at amortized cost; (ii) debt and equity securities
that are held for current resale would be classified as trading securities
and reported at fair value, with unrealized gains and losses included in
operations; and (iii) debt and equity securities not classified as either
securities held to maturity or trading securities would be classified as
securities available for sale, and reported at fair value, with unrealized
gains and losses excluded from operations and reported as a separate
component of shareholders' equity. The Compnay adopted SFAS No. 115
effective as of January 1, 1994, and as of that date the Bank had both
investment securities classified at "held to maturity" and investment
securities classified as "available for sale." Securities classified as
available for sale will be reported at their fair value at the end of each
fiscal quarter. The value of such securities fluctuates based on changes
in interest rates. Generally, an increase in interest rates would result
in a decline in the value of investment securities held for sale, while a
decline in interest rates would result in an increase in the value of such
securities. Therefore, the value of investment securities available for
sale and the Bank's shareholders' equity could be subject to fluctuation,
based on changes in interest rates. As a consequence, the Bank's capital
levels for regulatory purposes could change based solely on fluctuations
in interest rates and fluctuations in the value of investment securities
available for sale. Such change could result in additional regulatory
restrictions under the prompt corrective actions provisions of the FDIC
Improvement Act of 1991 and various other laws and regulations that are
based, in part, on a institution's capital levels, including those dealing
with the risk related insurance premium system and brokered deposit
restrictions. See "Item 1, Business -- Effect of Governmental Policies and
Recent Legislation -- Federal Deposit Insurance Corporation Improvement Act
of 1991."
Omnibus Budget Reconciliation Act of 1993
On August 10, 1993, President Clinton signed the Omnibus
Budget Reconciliation Act of 1993 (the "Reconciliation Act").
Some of the provisions in the Reconciliation Act that may have an
effect on the Company include the following: (i) the corporate
income tax rate was increased from 34.04% to 35.0% for taxable
income in excess of $10.0 million; (ii) mark-to-market rules for
tax purposes with regard to securities held for sale by the
Company; (iii) beginning in 1994 the amount of business meals
and entertainment expenses that will be disallowed will be
increased from the current 20.0% disallowance to 50.0%
disallowance; (iv) club dues and lobbying expenses will no longer
be deductible; and (v) certain intangible assets, including
goodwill, will be amortized over a period of 15 years.
Considering the Company's current tax situation, the Company does
18
not expect the provisions of the Reconciliation Act to have a
material effect on the Company.
Supervision and Regulation
Bank holding companies and banks are extensively regulated
under both federal and state law.
The Company
The Company, as a registered bank holding company, is
subject to regulation under the Bank Holding Company Act of 1956,
as amended (the "Act"). The Company is required to file with the
Federal Reserve Board quarterly and annual reports and such
additional information as the Federal Reserve Board may require
pursuant to the Act. The Federal Reserve Board may conduct
examinations of the Company and its subsidiaries.
The Federal Reserve Board may require that the Company
terminate an activity or terminate control of or liquidate or
divest certain subsidiaries or affiliates when the Federal
Reserve Board believes the activity or the control of the
subsidiary or affiliate constitutes a significant risk to the
financial safety, soundness or stability of any of its banking
subsidiaries. The Federal Reserve Board also has the authority
to regulate provisions of certain bank holding company debt,
including authority to impose interest ceilings and reserve
requirements on such debt. Under certain circumstances, the
Company must file written notice and obtain approval from the
Federal Reserve Board prior to purchasing or redeeming its equity
securities.
Under the Act and regulations adopted by the Federal Reserve
Board, a bank holding company and its nonbanking subsidiaries are
prohibited from requiring certain tie-in arrangements in
connection with any extension of credit, lease or sale of
property or furnishing of services. Further, the Company is
required by the Federal Reserve Board to maintain certain levels
of capital. See "Item 1. BUSINESS - Effect of Governmental
Policies and Recent Legislation - Capital Adequacy Guidelines."
The Company is required to obtain the prior approval of the
Federal Reserve Board for the acquisition of more than 5% of the
outstanding shares of any class of voting securities or
substantially all of the assets of any bank or bank holding
company. Prior approval of the Federal Reserve Board is also
required for the merger or consolidation of the Company and
another bank holding company.
The Company is prohibited by the Act, except in certain
statutorily prescribed instances, from acquiring direct or
indirect ownership or control of more than 5% of the outstanding
voting shares of any company that is not a bank or bank holding
19
company and from engaging directly or indirectly in activities
other than those of banking, managing or controlling banks or
furnishing services to its subsidiaries. However, the Company
may, subject to the prior approval of the Federal Reserve Board,
engage in , or acquire shares of companies engaged in, any
activities that are deemed by the Federal Reserve Board to be so
closely related to banking or managing or controlling banks as to
be a proper incident thereto. In making any such determination,
the Federal Reserve Board is required to consider whether the
performance of such activities by the Company or an affiliate can
reasonably be expected to produce benefits to the public, such as
greater convenience, increased competition or gains in
efficiency, that outweigh possible adverse effects, such as undue
concentration of resources, decreased or unfair competition,
conflicts of interest or unsound banking practices. The Federal
Reserve Board is also empowered to differentiate between
activities commenced de novo and activities commenced by
acquisition, in whole or in part, of a going concern and is
generally prohibited from approving an application by a bank
holding company to acquire voting shares of any commercial bank
in another state unless such acquisition is specifically
authorized by the laws of such other state.
Under Federal Reserve Board regulations, a bank holding
company is required to serve as a source of financial and
managerial strength to its subsidiary banks and may not conduct
its operations in an unsafe or unsound manner. In addition, it
is the Federal Reserve Board's policy that, in serving as a source
of strength to its subsidiary banks, a bank holding company
should stand ready to use available resources to provide adequate
capital funds to its subsidiary banks during periods of financial
stress or adversity and should maintain the financial flexibility
and capital-raising capacity to obtain additional resources for
assisting its subsidiary banks. A bank holding company's failure
to meet its obligations to serve as a source of strength to its
subsidiary banks will generally be considered by the Federal
Reserve Board to be an unsafe and unsound banking practice or a
violation of the Federal Reserve Board's regulations or both.
This doctrine has become known as the "source of strength"
doctrine. Although the United States Court of Appeals for the
Fifth Circuit found the Federal Reserve Board's source of
strength doctrine invalid in 1990, stating that the Federal
Reserve Board had no authority to assert the doctrine under the
Act, the decision, which is not binding on federal courts outside
the Fifth Circuit, was recently reversed by the United States
Supreme Court on procedural grounds. The validity of the source
of strength doctrine is likely to continue to be the subject of
litigation until definitively resolved by the courts or by
Congress.
The Company is also a bank holding company within the
meaning of Section 3700 of the California Financial Code. As
such, the Company and its subsidiaries are subject to examination
20
by, and may be required to file reports with, the California
State Banking Department.
Finally, the Company is subject to the periodic reporting
requirements of the Securities Exchange Act of 1934, as amended,
including, but not limited to, filing annual, quarterly and other
current reports with the Securities and Exchange Commission.
The Bank
The Bank, as a California state chartered bank, is subject
to primary supervision, periodic examination and regulation by
the California Superintendent of Banks ("Superintendent") and the
FDIC.
The Bank is insured by the FDIC, which currently insures
deposits of each member bank to a maximum of $100,000 per
depositor. For this protection, the Bank, as is the case with
all insured banks, pays a semiannual statutory assessment and is
subject to the rules and regulations of the FDIC. See "Item 1.
BUSINESS - Effect of Governmental Policies and Recent
Legislation." Although the Bank is not a member of the Federal
Reserve System, it is nevertheless subject to certain regulations
of the Federal Reserve Board.
Various requirements and restrictions under the laws of the
State of California and the United States affect the operations
of the Bank. State and federal statutes and regulations relate
to many aspects of the Bank's operations, including reserves
against deposits, interest rates payable on deposits, loans,
investments, mergers and acquisitions, borrowings, dividends and
locations of branch offices. Further, the Bank is required to
maintain certain levels of capital. See "Item 1. BUSINESS -
Effect of Governmental Policies and Recent Legislation - Capital
Adequacy Guidelines."
Restrictions on Transfers of Funds to CVB by the Bank
CVB is a legal entity separate and distinct from the Bank
and its subsidiaries.
There are statutory and regulatory limitations on the amount
of dividends which may be paid to CVB by the Bank. California law
restricts the amount available for cash dividends by state chartered
banks to the lesser of retained earnings or the bank's net income
for its last three fiscal years (less any distributions to
shareholders made during such period). In the event a bank has no
retained earnings or net income for its last three fiscal years,
cash dividends may be paid in an amount not exceeding the greater
of the retained earnings of the bank, the net income for such bank's
last preceding fiscal year, or the net income of the bank for its
current fiscal year only after obtaining the prior approval of the
Superintendent.
21
The FDIC also has authority to prohibit the Bank from
engaging in what, in the FDIC's opinion, constitutes an unsafe or
unsound practice in conducting its business. It is possible,
depending upon the financial condition of the bank in question
and other factors, that the FDIC could assert that the payment of
dividends or other payments might, under some circumstances, be
such an unsafe or unsound practice. Further, the FDIC and the
Federal Reserve Board have established guidelines with respect to
the maintenance of appropriate levels of capital by banks or bank
holding companies under their jurisdiction. Compliance with the
standards set forth in such guidelines and the restrictions that
are or may be imposed under the prompt corrective action
provisions of the FDIC Improvement Act could limit the amount of
dividends which the Bank or the Company may pay. See "Item 1.
BUSINESS - Federal Deposit Insurance Corporation Improvement Act
of 1991 - Prompt Corrective Regulatory Action and - Capital
Adequacy Guidelines" for a discussion of these additional
restrictions on capital distributions.
At present, substantially all of CVB's revenues, including
funds available for the payment of dividends and other operating
expenses, are, and will continue to be, primarily dividends paid
by the Bank. At December 31, 1993, the Bank had approximately
$18.0 million available for the payment of cash dividends.
The Bank is subject to certain restrictions imposed by
federal law on any extensions of credit to, or the issuance of a
guarantee or letter of credit on behalf of, CVB or other
affiliates, the purchase of or investments in stock or other
securities thereof, the taking of such securities as collateral
for loans and the purchase of assets of CVB or other affiliates.
Such restrictions prevent CVB and such other affiliates from
borrowing from the Bank unless the loans are secured by
marketable obligations of designated amounts. Further, such
secured loans and investments by the Bank to or in CVB or to or
in any other affiliate are limited to 10% of the Bank's capital
and surplus (as defined by federal regulations) and such secured
loans and investments are limited, in the aggregate, to 20% of
the Bank's capital and surplus (as defined by federal
regulations). California law also imposes certain restrictions
with respect to transactions involving CVB and other controlling
persons of the Bank. Additional restrictions on transactions with
affiliates may be imposed on the Bank under the prompt corrective
action provisions of the FDIC Improvement Act. See "Item 1.
BUSINESS - Effect of Governmental Policies and Recent Legislation
- - Federal Deposit Insurance Corporation Improvement Act of 1991 -
Prompt Corrective Regulatory Action."
Potential Enforcement Actions
Commercial banking organizations, such as the Bank, and
their institution-affiliated parties, which include the Company,
22
may be subject to potential enforcement actions by the Federal
Reserve Board, the FDIC and the Superintendent for unsafe or
unsound practices in conducting their businesses or for
violations of any law, rule, regulation or any condition imposed
in writing by the agency or any written agreement with the
agency. Enforcement actions may include the imposition of a
conservator or receiver, the issuance of a cease-and-desist order
that can be judicially enforced, the termination of insurance of
deposits (in the case of the Bank), the imposition of civil money
penalties, the issuance of directives to increase capital, the
issuance of formal and informal agreements, the issuance of
removal and prohibition orders against institution-affiliated
parties and the imposition of restrictions and sanctions under
the prompt corrective action provisions of the FDIC Improvement
Act. Additionally, a holding company's inability to serve as a
source of strength to its subsidiary banking organizations could
serve as an additional basis for a regulatory action against the
holding company. Neither the Company nor the Bank have been
subject to any such enforcement actions.
ITEM 2. Properties
The principal executive offices of the Company and the Bank
are located at 701 N. Haven Avenue, Suite 350, Ontario, California.
The office of Community is located at 125 East "H" Street, Colton,
California.
The Bank occupies the premises for ten of its offices under
leases expiring at various dates from 1994 through 2014. The
Bank owns the premises for its six other offices.
The Company's total occupancy expense, exclusive of furniture
and equipment expense, for the year ended December 31, 1993, was
$2.2 million. Management believes that its existing facilities
are adequate for its present purposes. However, management
currently intends to increase the Bank's assets over the next
several years and anticipates that a substantial portion of this
growth will be accomplished through acquisition or de novo opening
of additional banking offices. For additional information concerning
properties, see Notes 6 and 9 to the Company's financial statements
included in this report. See "Item 8, FINANCIAL STATEMENTS AND
SUPPLEMENTAL DATA."
ITEM 3. Legal Proceedings
From time to time the Company and the Bank are party to claims
and legal proceedings arising in the ordinary course of business.
After taking into consideration information furnished by counsel to
the Company and the Bank management believes that the ultimate
aggregate liability represented thereby, if any, will not
have a material adverse effect on the Company's consolidated
financial position or results of operations.
23
ITEM 4.Submission of Matters to a Vote of Security Holders
No matters were submitted to shareholders during the fourth
quarter of 1993.
ITEM 4(A). EXECUTIVE OFFICERS OF THE REGISTRANT
As of March 15, 1994, the principal executive officers of
the Company and Chino are:
Name Position Age
George A. Borba Chairman of the Board of 61
the Company and the Bank
D. Linn Wiley President and Chief Executive 55
Officer of the Company and the Bank
Daniel L. Thomas Executive Vice President/Manager 53
of the Chino office
Vincent T. Breitenberger Executive Vice President/Senior 60
Loan Officer of the Bank
Jay W. Coleman Executive Vice President of the Bank 51
Robert J. Schurheck Chief Financial Officer of 61
the Company and Executive Vice
President and Chief Financial Officer
of the Bank
Other than George A. Borba, who is the brother of John A.
Borba, a director of the Company and the Bank, there is no family
relationship among any of the above-named officers or any of the
Company's directors.
Mr. Borba has served as Chairman of the Board of the Company
since its organization in April 1981 and Chairman of the Board of
the Bank since its organization in December 1973. In addition,
Mr. Borba is the owner of George Borba Dairy.
Mr. Wiley has served as President and Chief Executive
Officer of the Company since October 4, 1991. Mr. Wiley joined
the Company and Bank as a director and as President and Chief
Executive Officer designate on August 21, 1991. Prior to that,
Mr. Wiley served as an Executive Vice President of Wells Fargo
Bank from April 1, 1990 to August 20, 1991. From 1988 to
April 1, 1990 Mr. Wiley served as the President and Chief
Administrative Officer of Central Pacific Corporation, and from
1983 to 1990 he was the President and Chief Executive Officer of
American National Bank.
24
Mr. Thomas assumed the position of Executive Vice
President/Manager of the Chino office effective November 1, 1988.
Prior to that time he was Executive Vice President from February 25,
1985 to October 31, 1988. Prior to that, he served as Senior Vice
President of Loan Administration at Bank of Newport.
Mr. Breitenberger has served as Executive Vice President of
the Bank since April 1982, and prior to that time was Senior Vice
President of the Bank from November 1980 to March 1982. He has
been the Senior Loan Officer of the Bank since November 1980.
Mr. Coleman assumed the position of Executive Vice President
of the Bank on December 5, 1988. Prior to that he served as
President and Chief Executive Officer of Southland Bank, N.A.
from March 1983 to April 1988.
Mr. Schurheck assumed the position of Chief Financial
Officer of the Company and Executive Vice President/Chief
Financial Officer of the Bank on March 1, 1990. He served as
Senior Vice President of the Bank from September 11, 1989 to
February 28, 1990. Prior to that he served as Senior Vice
President of General Bank from June 1988 to September 1989. From
July 1987 to June 1988 Mr. Schurheck was a self-employed
consultant; from December 1973 to June 1987 he was Senior Vice
President of Operations and Finance of State Bank in Lake Havasu
City, Arizona.
25
PART II
ITEM 5. MARKET FOR THE REGISTRANT'S COMMON STOCK AND RELATED
STOCKHOLDER MATTERS.
Shares of CVB Financial Corp. common stock price increased from an
average price of $10.129 for the first quarter of 1993, to an average price
of $12.538 for the fourth quarter of 1993. Fears regarding the recession,
weak California real estate prices, and bank capital levels continued to
dominate investors' perceptions of bank stocks, regardless of the
performance of CVB Financial Corp. The average price of CVB common stock
for the fourth quarter of 1993 was $12.538, and this represented a
multiple of book value of approximately 1.52. The following table
presents the high and low sales prices for the Company's common stock
during each quarter for the past three years. The share prices and cash
dividend per share amounts presented for all periods in the table below
have been restated to give retroactive effect to the ten percent stock
dividends declared on December 15, 1993. There were approximately 1,039
shareholders as of December 31, 1993.
Three Year Summary of Common Stock Prices
Quarter
Ended High Low Dividends
3/31/91 11.57 8.58 $.058 Cash Dividend
6/30/91 10.85 9.61 $.058 Cash Dividend
9/30/91 10.13 8.26 $.058 Cash Dividend
12/31/91 9.50 6.82 $.066 Cash Dividend
3/31/92 10.02 7.34 $.066 Cash Dividend
6/30/92 8.88 8.16 $.066 Cash Dividend
9/30/92 8.36 7.65 $.066 Cash Dividend
12/31/92 8.47 6.82 $.066 Cash Dividend
10% Stock Dividend
3/31/93 12.27 8.52 $.073 Cash Dividend
6/30/93 11.42 10.00 $.073 Cash Dividend
9/30/93 13.41 10.91 $.073 Cash Dividend
12/31/93 13.52 11.70 $.073 Cash Dividend
10% Stock Dividend
The Company lists its common stock on the American
Stock Exchange under the symbol "CVB."
26
ITEM. 6. SELECTED FINANCIAL DATA
1993 1992 1991 1990 1989
Net Interest Income $35,891,367 $32,020,207 $29,460,946 $29,736,722 $27,891,424
Provision for Credit Losses 1,720,000 1,772,109 604,000 545,000 1,414,000
Other Operating Income 10,744,921 7,897,796 7,038,897 6,400,600 4,900,574
Other Operating Expenses 29,353,759 23,419,389 22,709,783 20,908,041 18,692,995
Earnings Before Income Taxes 15,562,529 14,726,505 13,186,060 14,684,281 12,685,003
Income Taxes 6,040,178 5,711,445 5,217,380 5,837,716 4,854,375
NET EARNINGS $ 9,522,351 $ 9,015,060 $ 7,968,680 $ 8,846,565 $ 7,830,628
Net Earnings Per Common Share $1.27 $1.23 $1.10 $1.18 $1.05
Stock Splits ---- ---- ---- ---- 2 for 1
Stock Dividends 10% 10% ---- ---- 25%
Cash Dividends Declared Per Share $0.29 $0.26 $0.24 $0.22 $0.054
Dividend Pay-Out Ratio 22.83% 21.14% 21.82% 18.64% 5.14%
Financial Position:
Assets $687,407,957 $592,097,857 $560,324,296 $512,360,816 $472,657,303
Net Loans 442,083,848 374,661,538 365,573,877 362,757,799 342,555,462
Deposits 595,956,301 526,923,421 499,807,113 462,891,267 429,073,520
Stockholders' Equity 59,957,532 52,038,215 44,188,978 38,365,267 32,500,926
Book Value Per Share 8.24 7.19 6.25 5.44 4.52
Equity-to-Assets Ratio 8.72% 8.79% 7.89% 7.49% 6.88%
Financial Performance:
Return on:
Beginning Equity 18.30% 20.40% 20.77% 27.22% 31.65%
Average Equity 17.46% 18.72% 19.45% 24.67% 27.51%
Return on Average Assets 1.52% 1.62% 1.54% 1.81% 1.88%
Credit Quality:
Allowance for Credit Losses $ 8,849,442 $ 6,461,345 $ 5,262,614 $ 5,091,679 $ 5,037,155
Allowance/Total Loans 1.96% 1.70% 1.42% 1.38% 1.45%
Total Non-Performing Loans $13,262,357 $ 10,204,442 $ 5,847,393 $ 10,090,000 $ 3,946,000
Non-Performing Loans/Total Loans 2.94% 2.68% 1.58% 2.74% 1.14%
Non-Performing Loans/Allowance 149.87% 157.93% 111.11% 198.17% 78.34%
Net Charge-Offs $ 918,898 $ 573,378 $ 433,065 $ 490,476 $ 89,884
Net Charge-Offs/Average Loans 0.22% 0.16% 0.12% 0.14% 0.03%
All per share information has been retroactively adjusted to reflect the 10% stock dividend
declared December 15, 1993, as to holders of record on January 3, 1994, and payable January 17,
1994.
Stockholders' equity divided by total net assets.
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
27
Management's discussion and analysis is written to provide
greater insight into the results of operations and the financial
condition of CVB Financial Corp. and its subsidiaries. This
analysis should be read in conjunction with the audited financial
statements contained within this report including the notes
thereto. CVB Financial Corp., (CVB) is a bank holding company.
Its primary subsidiary, Chino Valley Bank, (the Bank) is a state
chartered bank with 16 branch offices located in San Bernardino,
Riverside, east Los Angeles, and north Orange Counties.
Community Trust Deed Services (CTD) is a nonbank subsidiary
providing services to the Bank as well as nonaffiliated persons.
For purposes of this analysis, the consolidated entities are
referred to as the "Company".
The results of operations, and the financial condition of
the Company were affected in 1993 by two separate bank
acquisitions. On March 8, 1993, the Company acquired Fontana
First National Bank through merger with the "Capital B Bank" as
the continuing entity. On the date of acquisition Fontana First
National Bank had approximately $23.7 million in deposits and
acquiring approximately $18.5 million in loans. Fontana First
National Bank was purchased for $5.04 million, which resulted in
$2.0 million in goodwill.
On October 21, 1993, the Bank assumed the deposits and
purchased certain assets of the failed Mid City Bank, N.A. from
the Federal Deposit Insurance Corporation (the FDIC). The
acquisition was structured under a written agreement between the
FDIC and the Bank that allowed the Bank certain rights in regard
to repricing deposits and purchasing additional assets as well as
providing the Bank with indemnification from prior activities of
the failed bank. After exercising its right to re-price specific
deposits, the Bank assumed approximately $20.0 million in
deposits, and purchased $2.0 million in investments and $18.0
million in loans.
ANALYSIS OF THE RESULTS OF OPERATIONS
The Company reported net earnings of $9.5 million for the
year ended December 31, 1993. This represented an increase of
$507,000 or 5.60%, over net earnings of $9.0 million for the year
ended December 31, 1992. For the year ended December 31, 1991,
net earnings totaled $7.9 million. Earnings per share have
increased from $1.10, to $1.23, to $1.27, for the years ended
December 31, 1991, 1992, and 1993, respectively.
The return on average assets increased from 1.54% for the
year ended December 31, 1991, to 1.62% for the year ended
December 31, 1992, then decreased to 1.52% for the year ended
December 31, 1993. Return on average shareholders' equity
decreased from 19.45%, to 18.72%, to 17.46%, for the years ended
December 31, 1991, 1992, and 1993, respectively. The capital to
28
asset ratio (the leverage ratio) increased from 8.28% at December
31, 1991, to 8.37% at December 31, 1993.
The increase in net earnings for 1993 and 1992 was primarily
the result of increases in net interest income. Contributing to
the increase in net interest income was a significant increase in
assets and a lower cost of total deposits resulting from
increased noninterest bearing demand deposits as a percent of
total deposits. Significant growth in other operating income for
1993 also contributed to increased net earnings. This was the
result of gains realized on securities sold during the year.
Increases in the provision for loan losses for 1992 and
1993, and a $2.8 million provision for potential losses on other
real estate owned for 1993, offset a portion of the increase in
net interest income for 1992 and 1993. Growth in assets exceeded
increases in earnings for 1993, resulting in a decrease in return
on assets.
NET INTEREST INCOME AND THE NET INTEREST MARGIN
Table 1 provides average balances of assets, liabilities,
and shareholders' equity, for the years ended December 31, 1993,
1992, and 1991. Interest income and interest expense and the
corresponding yields and costs are included for applicable
interest earning assets and interest bearing liabilities for each
year ended. Rates for tax preferenced investments are provided
on a taxable equivalent basis using a marginal tax rate of
34.25%.
29
TABLE 1 - Distribution of Average Assets, Liabilities, and
Stockholders' Equity; Interest Rates and Interest
Differentials
(amounts in thousands)
1993 1992 1991
Average 1993 1993 Average 1992 1992 Average 1991 1991
Balance Interest Rate Balance Interest Rate Balance Interest Rate
ASSETS
Investment Securities
Taxable $120,288 8,188 6.81% $111,543 8,682 7.78% $ 78,272 6,595 8.43%
Tax preferenced 3,142 131 5.87% 9,941 355 5.03% 11,822 658 7.81%
Federal Funds Sold 14,135 414 2.93% 11,530 414 3.59% 19,640 1,097 5.59%
Net Loans 410,097 37,036 9.03% 362,784 34,762 9.58% 357,298 40,491 11.33%
Total Earnings Assets 547,662 45,769 8.37% 495,798 44,213 8.95% 467,032 48,841 10.51%
Total Non-earning Assets 79,537 61,397 50,845
Total Assets $627,199 $557,195 $517,877
LIABILITIES AND
STOCKHOLDERS' EQUITY
Demand Deposits $178,539 $139,354 $114,909
Savings Deposits 287,044 6,478 2.26% 276,904 8,247 2.98% 271,274 13,815 5.09%
Time Deposits 92,472 3,180 3.44% 82,129 3,732 4.54% 79,110 5,206 6.58%
Total Deposits 558,055 9,658 1.73% 498,387 11,979 2.40% 465,293 19,021 4.09%
Other Borrowings 8,440 220 2.61% 6,548 214 3.27% 5,968 359 6.02%
Interest Bearing Liabilities 387,956 9,878 2.55% 365,581 12,193 3.34% 356,352 19,380 5.44%
Other Liabilities 6,172 4,110 5,653
Stockholders' Equity 54,532 48,150 40,963
Total Liabilities and
Stockholders' Equity $627,199 $557,195 $517,877
Net interest spread 5.82% 5.61% 5.07%
Net interest margin 6.56% 6.49% 6.36%
Net interest margin excluding loan fees 6.07% 6.02% 5.86%
Includes certificates of deposit purchased from other institutions
Yields are calculated on a taxable equivalent basis
Loan fees are included in total interest income as follows: 1993, $2,694; 1992, $2,321; 1991, $2,353
Non-performing loans are included in net loans a follows: 1993 $13,262;1992, $10,205; 1991, $5,847
Includes interest-bearing demand and money market accounts
Net interest income is equal to the difference between the
interest the Company receives on interest earning assets and the
interest it pays for interest bearing liabilities. Net interest
income totaled $35.9 million for the year ended December 31,
1993, representing an increase of $3.9 million, or 12.1%, over
net interest income of $32.0 million for the year ended December
31, 1992. For the year ended December 31, 1991, the Company
generated net interest income of $29.5 million. The net interest
margin is the net return on average interest earning assets, or
30
net interest income measured as a percent of average interest
earning assets. The net interest margin totaled 6.56%, 6.49%,
and 6.36%, for the years ended December 31, 1993, 1992, and 1991,
respectively.
The increases in net interest income and net interest margin for
both 1993 and 1992 were the result of continued improvement in
the net interest spread. A general decline in the rate paid for
interest bearing liabilities, coupled with increases in
noninterest bearing demand deposits as a percent of total
deposits, resulted in a decrease in the cost of funds.
The net interest spread is the difference between the yield on
interest earning assets and the cost of interest bearing
liabilities. The yield on interest earning assets decreased
from 10.51%, to 8.95%, to 8.37%, for the years ended December 31,
1991, 1992, and 1993, respectively. During the same period, the
cost of interest bearing liabilities decreased from 5.44% for
1991, to 3.34% for 1992, to 2.55% for 1993. The decreases in
the yields on interest earning assets as well as the cost of
interest bearing liabilities both reflect decreases in interest
rates in general during the three year period. As the decreases
in the cost of interest bearing liabilities was greater than the
decreases in the yield on interest earning assets, the net
interest spread increased from 5.07% for 1991, to 5.61%
for 1992, to 5.82% for 1993.
Increases in net interest income and the net interest margin for
1992 and 1993 were also affected by a less costly deposit mix.
The Company's assets are primarily funded by deposits, including
non-interest bearing demand deposits. Noninterest bearing demand
deposits have increased from $131.5 million, to $157.4 million,
to $221.6 million at December 31, 1991, 1992 and 1993,
respectively. This represented increases of $64.1
million, or 40.70% for 1993, and $25.9 million, or 19.75% for
1992. As a percent of average total deposits, average
noninterest bearing demand deposits have increased from
24.70%, to 27.96%, to 31.99%, for the years ended December 31,
1991, 1992, and 1993, respectively. As average noninterest
bearing deposits have increased as a percent of average total
deposits, the cost of average total deposits has decreased from
4.09%, to 2.40%, to 1.73%, for the years ended December 31, 1991,
1992 and 1993, respectively.
31
Table 2 provides a summary of the changes in interest income and
interest expense resulting from changes in the volume of interest earning
assets and interest bearing liabilities, and the changes resulting from
changes in interest rates for the years ended December 31, 1993, 1992, and
1991. The changes in interest income or expense attributable to volume
changes are calculated by multiplying the change in volume by the initial
average rate. The changes in interest income attributable to changes in
interest rates are calculated by multiplying the change in rate by the
initial volume. The changes attributable to rate and volume changes are
calculated by multiplying the change in rate times the change in volume.
TABLE 2 - Rate and Volume Analysis for Changes in Interest
Income, Interest Expense and Net Interest Income
(amounts in thousands)
1993 Compared to 1992 1992 Compared to 1991
Increase (decrease) due to Increase (decrease) due to
Rate/ Rate/
Volume Rate Volume Total Volume Rate Volume Total
Interest Income:
Taxable investment securities $ 680 $(1,089) $ (85) $(494) $ 2,804 $ (503) $ (214) $ 2,087
Tax preferenced securities (242) 61 (43) (224) (104) (237) 38 (303)
Fed funds 94 (77) (17) 0 (453) (391) 161 (683)
Loans 4,534 (1,999) (261) 2,274 622 (6,255) (96) (5,729)
Total earnings assets 5,066 (3,104) (406) 1,556 2,869 (7,386) (111) (4,628)
Interest Expense:
Savings deposits 302 (1,999) (72) (1,769) 287 (5,736) (119) (5,568)
Time deposits 470 (907) (115) (552) 199 (1,611) (62) (1,474)
Other borrowings 62 (43) (13) 6 35 (164) (16) (145)
Total interest bearing liabilities 834 (2,949) (200) (2,315) 521 (7,511) (197) (7,187)
Net Interest Income $ 4,232 (155) (206) 3,871 $ 2,348 $ 125 $ 86 $ 2,559
The Company's primary source of revenue is the interest
income it receives on loans. In general, the Company stops accruing
interest on a nonperforming loan after its principal or interest
becomes 90 days or more past due. Interest that has already
accrued on a nonperforming loan is reversed from income when the
loan is placed in a nonperforming status. Interest income for
the year ended December 31, 1992, and 1991, respectively,
included interest of $115,900, and $89,500 that was accrued and
not reversed on nonperforming loans. There was no interest
income that was accrued and not reversed on any nonperforming loan at
December 31, 1993. For 1991 and 1992, the amount of interest
accrued on nonperforming loans was deemed collectable primarily
based on the value of collateral in which the Bank held a
security interest. Had nonperforming loans for which interest
was no longer accruing complied with the original terms and
conditions of the notes, interest income would have increased by
32
$1,186,000, $698,600, and $1,037,200 for the years ended December
31, 1993, 1992, and 1991 respectively. Accordingly, yields on
loans would have increased by 0.28%, 0.19%, and 0.29%,
respectively. Included in Other Real Estate Owned at December
31, 1993 is a loan totaling $977,000 which, although performing
according to its original terms, is accounted for as real estate
held for sale as required under SFAS 66. As principal and
interest payments on this loan were current at December 31, 1993,
for analysis purposes, the average balance of the loan was
included in total loans, and the yield on loans was
adjusted accordingly.
Loan fees and the direct costs associated with the
origination of loans are deferred and netted against the outstanding
loan balance. The deferred net loan fees and costs are recognized
as interest income net of cost over the term of the loan in a manner
that approximates the level-yield method. (See Note 1 of the
Financial Statements). Fees collected on loans are an integral
part of the loan pricing decision. For the year ended December
31, 1993, the Company recognized $2.7 million in loan origination
fees, representing an increase of $373,000, or 16.1%, from fee
income of $2.3 million recognized in 1992. Fee income recognized
for 1991 totaled $2.4 million. Table 3 summarizes loan fee
activity for the Bank for the three year period.
TABLE 3 - Loan Fee Activity
(amounts in thousands)
1993 1992 1991
Fees collected $ 2,394 $ 3,419 $ 2,649
Fees and costs deferred (1,328) (2,262) (1,109)
Accretion of deferred fees and costs 1,628 1,164 813
Total fee income reported $ 2,694 $ 2,321 $ 2,353
Deferred net loan origination fees acquired 64 0 0
Deferred net loan origination fees
at end of year $ 1,604 $ 1,840 $ 718
During periods of changing interest rates, the ability to
reprice interest earning assets and interest bearing liabilities
can influence net interest income, the net interest margin, and
consequently, the Company's earnings. The Bank's Management
actively monitors interest rate "sensitivity" to potential
changes in interest rates using a maturity/repricing gap
analysis. This analysis measures, for specific time intervals,
the differences between interest earning assets and interest
bearing liabilities for which re-pricing opportunities will
occur. A positive difference, or gap, indicates that interest
earning assets will reprice faster than interest bearing
liabilities. This will generally produce a greater net interest
margin during periods of rising interest rates, and a lower
33
net interest margin during periods of decreasing interest rates.
Conversely, a negative gap will generally produce lower net
interest margin during periods of rising interest rates and
a greater net interest margin during periods of decreasing
interest rates.
Table 4 provides the Bank's maturity/repricing gap analysis
at December 31, 1993 and 1992. The Bank had a positive one year
cumulative gap of $22.1 million at December 31, 1993, compared
to a negative one year cumulative gap of $33.5 million at
December 31, 1992. The change from a negative gap position to a
positive gap position is primarily the result of an increase in
loans that reprice within one year.
TABLE 4 - Asset and Liability Maturity/Repricing Gap
(amounts in thousands)
Over 90 Over 180
90 days days to days to Over
or less 180 days 365 days 365 days
1993
Earnings Assets:
Fed Funds $ 15,000 $ 0 $ 0 $ 0
Investment Securities and
debt securities held for sale 22,846 4,829 3,429 118,415
Deposits with other financial
institutions 298 0 100 99
Total Loans 335,776 7,109 14,571 93,477
Total 373,920 11,938 18,100 211,991
Interest-Bearing Liabilities
Savings Deposits 292,550 0 0 0
Time Deposits 39,666 18,315 14,955 8,918
Other Borrowings 15,848 0 0 0
Total 348,064 18,315 14,955 8,918
Period GAP $ 25,856 $ (6,377) $ 3,145 $203,073
Cumulative GAP $ 25,856 $ 19,479 $ 22,624 $225,697
1992
Earnings Assets:
Fed Funds $ 12,290 $ 0 $ 0 $ 0
Investment Securities and
debt securities held for sale 16,823 3,983 7,083 93,165
Total Loans 280,507 3,720 11,616 85,280
Total 309,620 7,703 18,699 178,445
Interest-Bearing Liabilities
Savings Deposits 295,205 0 0 0
Time Deposits 34,392 24,355 4,565 11,294
Other Borrowings 10,988 0 0 0
Total 340,585 24,355 4,565 11,294
34
Period GAP $(30,965) $(16,652) $ 14,134 $167,151
Cumulative GAP $(30,965) $(47,617) $(33,483) $133,668
The interest rates paid on deposit accounts do not always
move in unison with the rates charged on loans. Specifically,
changes in the prime lending rate do not always result in an immediate
change in the rate paid on money market and savings accounts. In addition,
the magnitude of changes in the rate charged for loans is not necessarily
proportionate to the magnitude of changes in the rate paid for deposits.
Consequently, changes in interest rates do not necessarily result in
increases or decreases in the net interest margin solely as a result of the
differences between re-pricing opportunities of interest earning assets or
interest bearing liabilities. The fact that the Bank reported a nominal
positive gap at December 31, 1993 does not necessarily indicate that the
Bank's net interest margin will increase if rates increase in 1994, or
decrease if interest rates decrease. The analysis does provide a measure
for the Bank's Management to determine the relative level of interest rate
risk at any point in time.
SUMMARY OF CREDIT LOSS EXPOSURE
Implicit in lending activities is the risk that losses will
be experienced and the amount of such losses will vary over time.
Consequently, the Company maintains an allowance for credit
losses by charging to earnings a provision for potential credit
losses. Loans determined to be a loss are charged to the
allowance. The Company's allowance for credit losses is
maintained at a level considered by the Bank's Management to be
adequate to provide for estimated losses inherent in the existing
portfolio, including commitments under commercial and standby
letters of credit.
In evaluating the adequacy of the allowance for credit losses, the
Bank's Management estimates the amount of potential loss for each loan that
has been identified as having greater than standard credit risk, including
loans identified as nonperforming. Loss estimates also consider the
borrowers' financial data and the current valuation of collateral when
appropriate. In addition to the allowance for specific potential problem
credits, an allowance is further allocated for all loans in the portfolio
based on the risk characteristics of particular categories of loans
including historical loss experience in the portfolio. Additional
allowance is allocated on the basis of credit risk concentrations in the
portfolio and contingent obligations under off-balance sheet commercial and
standby letters of credit.
35
At December 31, 1993, the allowance for credit losses was $8.8
million, representing an increase of $2.4 million or 36.96%, over the
allowance for credit losses of $6.5 million at December 31, 1992. As a
percent of gross loans, the allowance for credit losses increased from
1.70% at December 31, 1992, to 1.96% at December 31, 1993. The increase in
the allowance for credit losses at December 31, 1993 resulted as the
provision for credit losses of $1.7 million, plus acquired reserves of $1.6
million, exceeded the net amount of loans charged to the reserve of
$919,000 for the year. Acquired reserves represent the allowance for
credit losses acquired from Fontana First National Bank, and the discount
from face value of specific loans purchased from the FDIC relating to the
Mid City Bank acquisition.
Net loans charged to the allowance for credit losses totaled
$433,000, $574,000, and $919,000 for the years ended December 31,
1991, 1992, and 1993, respectively. The increase in the amount
charged to reserves each year reflects the increases in loans
outstanding and the continued economic downturn in the Southern
California economy. The provision for credit losses totaled
$604,000, $1,772,000, and $3,307,000, for the years ended
December 31, 1991, 1992 and 1993. The increased provision
primarily reflects the increase in loans charged to the allowance
for credit losses for each period. Net loans charged to the
reserve, as a percent of average loans totaled 0.12%, 0.16%,
and 0.22% for the years ended December 31, 1991, 1992, and 1993.
The increase in the allowance for credit losses reflects the
prolonged regional economic downturn and the Bank's recognition
of the possibility that the downturn may continue and the
uncertain impact it may have on the Company's loan portfolio.
The increase in the allowance for credit losses has been made to
support the growth in the loan portfolio and to provide an
additional measure of protection in a recessionary economic
environment. The Bank recognizes that the current recessionary
conditions may continue, and the potential impact this may have
on the loan portfolio is uncertain. Nonperforming loans
increased from $10.2 million, or 2.68% of gross loans, at
December 31, 1992, to $12.5 million, or 2.77% of gross loans, at
December 31, 1993. While the Bank's Management believes that the
allowance was adequate to provide for both recognized potential
losses and estimated inherent losses in the portfolio, no
assurance can be given that economic conditions that may
adversely affect the Company's service area or other
circumstances will not result in increased provisions for credit
losses in the future.
36
Table 5 provides the comparative statistics on net credit losses, the
provisions for credit losses, and the allowance for credit losses. Loan
losses are fully, or partially charged against the allowance for credit
losses when, in the Bank's Management's judgment, the full collectability
of the loan's principal is in doubt. However, there is not a precise
method of predicting specific losses which ultimately may be charged
against the allowance for credit losses, and as such, Management is unable
to reasonably estimate the full amount of loans to be charged to the
reserve in future periods.
37
TABLE 5 - Summary of Credit Loss Experience
(amounts in thousands)
1993 1992 1991 1990 1989
Amount of Total Loans at End of Period $ 450,933 $ 381,123 $ 370,837 $ 367,849 $ 347,593
Average Total Loans Outstanding $ 416,984 $ 368,452 $ 362,457 $ 361,241 $ 291,476
Allowance for Credit Losses
at Beginning of Period $ 6,461 $ 5,263 $ 5,092 $ 5,037 $ 3,713
Loans Charged-Off:
Real Estate Loans 530 120 154 7 0
Commercial and Industrial 334 452 282 548 142
Consumer Loans 154 115 42 85 105
Total Loans Charged-Off 1,018 687 478 640 247
Recoveries:
Real Estate Loans 0 0 0 0 0
Commercial and Industrial 57 94 15 101 98
Consumer Loans 42 19 30 49 59
Total Loans Recovered 99 113 45 150 157
Net Loans Charged-Off 919 574 433 490 90
Provision Charged to Operating Expense 1,720 1,772 604 545 1,414
Adjustment Incident to Mergers 1,587
Allowance for Credit Losses
at End of period $ 8,849 6,461 5,263 5,092 5,037
Net Loans Charged-Off to
Average Total Loans 0.22% 0.16% 0.12% 0.14% 0.03%
Net Loans Charged-Off to Total Loans
at End of Period 0.20% 0.15% 0.12% 0.13% 0.03%
Allowance for Credit Losses
to Average Total Loans 2.12% 1.75% 1.45% 1.41% 1.73%
Allowance for Credit Losses
to Total Loans at End of Period 1.96% 1.70% 1.42% 1.38% 1.45%
Net Loans Charged-Off to allowance
for Credit Losses 10.39% 8.88% 8.23% 9.62% 1.79%
Net Loans Charged-Off to Provision
for Credit Losses 53.43% 32.39% 71.69% 89.91% 6.36%
Table 6 provides a summary of the allocation of the
allowance for credit losses for specific loan categories for the five
year period ended December 31, 1993. The allocations presented
should not be interpreted as an indication that loans charged to
the allowance for credit losses will occur in these amounts or
proportions, or that the portion of the allowance allocated to
each loan category represents the total amount available for
future losses that may occur within such categories, since there
is a large unallocated portion of the allowance for credit losses
and the total allowance is applicable to the entire
loan portfolio.
38
Table 6 - Allocation of Allowance for Credit Losses
(amounts in thousands)
1993 1993 1992 1992 1991 1991
Allow- % of Allow- % of Allow- % of
ance for Category ance for Category ance for Category
Credit to Total Credit to Total Credit to Total
Losses Loans Losses Loans Losses Loans
Real Estate Loans $ 43 30.1% $ 113 27.5% $ 77 29.5%
Commercial and Industrial 3,911 62.4% 2,422 68.0% 2,587 66.8%
Consumer 41 2.8% 164 3.0% 100 3.5%
Not Allocated 4,854 N/A 3,762 N/A 2,499 N/A
Total $8,849 95.2% $6,461 98.5% $5,263 99.8%
1990 1990 1989 1989
Allow- % of Allow- % of
ance for Category ance for Category
Credit to Total Credit to Total
Losses Loans Losses Loans
Real Estate Loans $ 128 30.1% $ 219 32.4%
Commercial and Industrial 2,320 65.8% 1,920 63.2%
Consumer 113 3.8% 130 4.0%
Not Allocated 2,531 N/A 2,768 N/A
Total $5,092 99.7% 5,037 99.6%
OTHER OPERATING INCOME
Other operating income for the Company includes service
charges on deposit accounts, gain on sale of securities, gross revenue
from CTD, and other revenues not derived from interest on earning
assets. Other operating income increased from $7.9
million for the year ended December 31, 1992, to $10.7 million
for the year ended December 31, 1993. This represented an
increase of $2.8 million, or 36.05%. For 1992, other operating
income increased $858,899, or 12.2%, from $7.0 million for the
year ended December 31, 1991.
The increase in other operating income for 1993 was the
result of gains on securities sold. Gains on sales of securities
totaled $3.7 million for the year ended December 31, 1993, compared
to gains of $261,531 for 1992, and $716,608 for 1991. The gains in
1993 were a result of restructuring the portfolio in anticipation
of adopting SFAS 115. (See discussion of Investment Securities
for explanation of SFAS 115).
39
Service charges on deposit accounts increased from $5.0 million to
$5.2 million for the years ended December 31, 1992 and 1993, respectively.
Service charges totaled $4.5 million for the year ended December 31, 1991.
Other operating income for 1991 and 1992 included gross revenue from a
subsidiary called Premier Results (Premier). Premier began operation in
1990 and provided item processing services for other financial
institutions. Premier had total revenues of $870,000 in 1992, and $638,000
for 1991. In December of 1992, Premier was sold to Electronic Data
Systems, Inc. as it was determined that the nature of the business was not
compatible with the Company's long term strategic plans. Net earnings from
Premier for 1992 totaled $125,000. Consequently, the divestiture did not
have a significant impact on 1993's earnings.
Other income also includes total revenue from CTD, a subsidiary of the
Company. Total revenue from CTD was approximately $238,000, $337,000, and
$271,000 for the years ended December 31, 1991, 1992, and 1993,
respectively.
NONINTEREST EXPENSES
Noninterest expenses totaled $29.4 million for the year
ended December 31, 1993. This represented an increase of $5.9
million, or 25.34%, from total noninterest expenses of $23.4
million for the year ended December 31, 1992. Total noninterest
expenses for the year ended December 31, 1991 were $22.7 million.
As a percent of average assets, total noninterest expenses
decreased from 4.39% for 1991, to 4.20% for 1992, then
increased to 4.68% for 1993. This increase was entirely related
to expenses associated with collection and foreclosure costs on
troubled credits.
A $2.8 million provision for potential losses on the sale of
other real estate owned contributed substantially to the increase
in noninterest expense for 1993. Other real estate owned is
property acquired by the Bank through foreclosure (See Loans).
Primarily as a result of the current economic climate in Southern
California, real estate values have decreased significantly over
the last two years. In anticipation of a continuation of this
trend in both commercial and residential real estate values, the
Bank's Management has provided an allowance for potential losses
on specific properties currently held by the Bank. The allowance
primarily protects against further decreases in real estate
values. Without the provision for potential losses on other
real estate owned for 1993, and the cost of carrying that real
estate, total noninterest expense, as a percent of average
assets, would have decreased for 1993 compared to 1992.
Salaries and related expenses totaled $14.4 million for the
year ended December 31, 1993. This represented an increase of
$962,073, or 7.14%, over total salaries and related expenses of
$13.5 million for the year ended December 31, 1992. Total
salaries and related expenses were $13.7 million for the year
ended December 31, 1991. As a percent of average assets, total
40
salaries and related expenses have decreased from 2.64%,
to 2.42%, to 2.30%, for the years ended December 31, 1991, 1992,
and 1993, respectively. Full time equivalent employees decreased
from 296 for 1991, to 243 for 1992, then increased to 302 for
1993. This increase in salaries for 1993 was primarily
related to the acquisitions of Fontana First National Bank and
Mid City Bank. As both acquisitions resulted in increased
assets, the additional salaries did not impact salary
expense as a percent of average assets.
INCOME TAXES
The Company's effective tax rate for 1993 was 39.2%, compared to a
rate of 38.8% for 1992, and a rate of 39.5% for 1991. These rates are below
the nominal combined Federal and State tax rates as a result of tax
preferenced income for each period. The increase in the effective tax rate
for 1993 reflects the retroactive Federal tax increase for revenues in
excess of $10.0 million, and the increase in the State tax rate for 1993.
ANALYSIS OF FINANCIAL CONDITION
Total assets increased from $592.1 million at December 31,
1992, to $687.4 million at December 31, 1993. This represented an
increase of $95.3 million, or 16.10%. Net loans increased $67.4
million, or 18.00%, from $374.7 million for the year ended
December 31, 1992, to $442.1 million for the year ended December
31, 1993. As in previous years, asset growth was primarily
funded by increased deposit growth. Total deposits increased
from $526.9 million at December 31, 1992, to $596.0 million at
December 31, 1993, an increase of $69.0 million, or 13.10%. The
acquisitions of Fontana First National Bank and Mid City Bank
accounted for approximately $43.0 million, or 45.0% of the $95.3
million increase in the Company's assets for 1993.
INVESTMENT SECURITIES
The Company maintains a portfolio of investment securities
to provide income and serve as a source of liquidity for its ongoing
operations. Note 2 of the financial statements sets forth the
distribution of the investment portfolio at December 31, 1993 and
1992.
In 1993, the Financial Accounting Standards Board introduced
new mark to market accounting rules for investment securities (SFAS
115). Under the new accounting method, when adopted, securities
held as "available for sale" will be reported at current market
value for financial reporting purposes. Increases or decreases
in market value when compared to cost will be adjusted directly
to the Company's capital accounts. While the Company has
demonstrated the ability and the intent to hold investment
securities until maturity, changes in liquidity needs as well
as changes in interest rates have resulted in the sale of
investment securities in the past. The introduction of SFAS 115
41
has changed the methodology used in determining the type
of securities purchased for the portfolio and the timing of sales
of securities within the portfolio.
The Bank's Management now reviews the portfolio from a total
return perspective. Current yields, in addition to current and
projected changes in market values, are now considered for both
purchases and sales of investment securities. Primarily as a
result of the adoption of this methodology in 1993, significant
changes were made to both the structure and maturities of the
investment portfolio. This restructure resulted in significant
gains from the sales of securities in 1993. (See Other Operating
Income)
The Bank's Management has elected to adopt SFAS 115 effective for
1994. At December 31, 1993, the market value of the investment portfolio
was approximately $150.9 million, representing an unrealized gain of
approximately $1.4 million over "book value" of $149.5 million. Had SFAS
115 been adopted, stockholders' equity would have been increased by the
amount of the unrealized gain at December 31, 1993, net of the tax effect.
The variance between market value and the cost value reported at December
31, 1993, is not material in relation to the Company's total capital.
In preparing for the implementation of SFAS 115 in 1994, the Bank's
investment portfolio is divided into two primary categories. These
included the "held for sale" portfolio and the "held to maturity"
portfolio. At December 31, 1993, the held for sale portion of the
portfolio comprised approximately 93.9% of the investment portfolio. The
balance was allocated to securities to be held to maturity. If securities
are sold prior to maturity to provide for liquidity needs or to take
advantage of changes in interest rates, securities from the held for sale
portion of the portfolio will be sold.
42
LOANS
Table 7 sets forth the distribution of the Company's loan
portfolio for each of the last five years.
TABLE 7 - Distribution of Loan Portfolio by Type
(amounts in thousands)
December 31 December 31 December 31 December 31 December 31
1993 1992 1991 1990 1989
Commercial and Industrial $282,177 $260,322 $248,168 $238,533 $220,982
Real Estate
Construction 56,358 43,879 40,788 39,775 48,076
Mortgage 79,929 61,619 68,753 75,006 64,353
Consumer,
net of unearned discount 12,517 11,642 13,067 13,948 13,818
Lease Finance Receivables 21,556 5,501 779 1,014 1,480
Gross Loans 452,537 382,963 371,555 368,276 348,709
Less:
Allowance for Credit Losses 8,849 6,461 5,263 5,092 5,037
Deferred Loan Fees 1,604 1,840 718 426 1,116
Total Net Loans $442,084 $374,662 $365,574 $362,758 342,556
Net loans increased $67.4 million, or 18.00%, from $374.7
million at December 31, 1992, to $442.1 million at December 31, 1993.
Approximately $32.9 million, or 48.8% of the $67.4 million
increase in net loans for 1993 resulted from the acquisitions of
Fontana First National Bank and Mid City Bank. Net of acquired
loans, loans increased approximately $34.5 million, or 9.2%, for
1993. The increase in loans, net of acquired loans, represents a
significant increase over the increase for 1992 when net loans
increased only $9.1 million, or 2.49%. The relatively slow real
growth in loans (net of loans acquired) for both 1992 and 1993,
reflects the prolonged economic downturn in the Southern
California economy, and the resulting decrease in loan demand.
Approximately $192.1 million, or 42.5% of the loan portfolio
matures within one year. Of this total, approximately $169.3
million, or 88.1%, have variable rates that are tied to the
Bank's prime lending rate. Loans that mature within one year
assist with the liquidity needs of the Bank as well as providing
greater repricing opportunities. Variable rate loans tied to the
Bank's prime lending rate provide immediate re-pricing
opportunities when interest rates change. Table 8 provides the
maturity distribution for commercial and industrial loans as well
as real estate construction loans as of December 31, 1993.
Amounts are also classified according to repricing opportunities
or rate sensitivity.
43
TABLE 8 - Loan Maturities and Interest Rate Sensitivity
(amounts in thousands)
December 31, 1993
After One
Within But Within After
One Year Five Years Five Years Total
Types of Loans:
Commercial and industrial 135,788 159,779 40,757 336,324
Construction 56,358 0 0 56,358
Total 192,146 159,779 40,757 392,682
Amount of Loans based upon:
Fixed Rates 22,869 31,778 15,424 70,071
Floating or adjustable rates 169,277 128,001 25,333 322,611
Total 192,146 159,779 40,757 392,682
Includes approximately $54.147 million in fixed rate commercial real estate loans.
These loans are classified as real estate mortgage loans for the financial statements, but
are accounted for as commercial and industrial loans on the Company's books.
As a normal practice in extending credit for commercial and
industrial purposes, the Bank may accept trust deeds on real
property as collateral. In some cases, when the primary source
of repayment for the loan is anticipated to come from cash flow
from normal operations of the borrower, the requirement of real
property as collateral is an abundance of caution. In these
cases, the real property is considered a secondary source
of repayment for the loan. Since the Bank lends primarily in
Southern California, its real estate loan collateral is
concentrated in this region. At December 31, 1993, approximately
97.0% of the Bank's loans secured by real estate were
collateralized by properties located in Southern California.
This concentration is considered when determining the adequacy
of the Company's allowance for credit losses.
In January of 1994, the greater Los Angeles area was affected by a
major earthquake and a series of aftershocks that were centered in the San
Fernando Valley. The Company is not located in the San Fernando Valley nor
is the San Fernando Valley part of the Company's service area. It is not
yet possible to assess the effect of the earthquake on the Company's
borrowers' primary or secondary repayment sources, or its overall effect on
the local economy in general. The Company's facilities and other real
estate owned suffered no damage, and management is not aware of any effects
from the earthquake that would materially impact its financial condition.
44
At December 31, 1993, nonperforming assets totaled $22.1 million. This
represented an increase of $4.1 million, or 21.6%, from total nonperforming
assets of $19.0 million at December 31, 1992. Nonperforming assets include
loans for which interest is no longer accruing, loans 90 or more days past
due, restructured loans, other real estate owned, and in substance
foreclosures. Although the Bank's Management believes that nonperforming
loans are generally well secured and that potential losses are provided for
in the Company's allowance for credit losses, there can be no assurance
that continued deterioration in economic conditions or collateral values
will not result in future credit losses. Table 9 provides information on
nonperforming loans and other real estate owned for the periods indicated.
TABLE 9 - Non-Performing Assets
(amounts in thousands)
December 31
1993 1992 1991 1990 1989 1988
Non-accrual loans $12,492 $6,642 $3,684 $9,164 $2,081 $3,828
Loans past due 90 days or more 0 272 85 19 23 174
Restructured loans 770 3,291 2,078 907 1,842 445
Other real estate owned (OREO) 9,768 8,797 3,586 0 695 693
Total non-performing assets $23,030 $19,002 $9,433 $10,090 $4,641 $5,140
Percentage of non-performing assets
to total loans outstanding & OREO 5.00% 4.87% 2.52% 2.74% 1.33% 2.04%
Percentage of non-performing assets
to total assets 3.35% 3.21% 1.68% 1.97% 0.98% 1.38%
At December 31, 1993, loans for which interest was no longer
accruing totaled $12.5 million. All loans on a nonaccrual status
were secured by real property which has a current appraisal that
is less than one year old. The estimated ratio of the
outstanding loan balances to the fair values of the related
collateral for nonaccrual loans at December 31, 1993, ranged
between approximately 21% to 92% of the loan value. The Bank has
allocated specific reserves included in the allowance for credit
losses for potential losses on these loans.
Except for nonperforming loans as set forth in Table 9, the
Bank's Management is not aware of any loans as of December 31,
1993 for which known credit problems of the borrower would cause
the Company to have serious doubts as to the ability of such
borrowers to comply with their present loan repayment terms or
any known events that would result in the loan being designated
as nonperforming at some future date. The Bank's Management
cannot, however, predict the extent to which the current economic
environment may persist or worsen or the full impact this
environment may have on the Company's loan portfolio.
At December 31, 1993, the book value of other real estate
45
owned totaled $9.8 million. This included 9 separate parcels of
property acquired through foreclosure, and one loan secured by
real estate that is performing but is classified as real estate
held for sale. The Bank is actively marketing these properties.
The Bank's Management cannot predict when these properties will
be sold or the terms of those sales when they occur. While
Management recognizes that the Southern California real estate
market continues to remain weak, the Bank has recent appraisals
on each property that support the carrying costs of those
properties at December 31, 1993. No assurance can be given that
if Southern California real estate values continue to decrease,
and the Bank cannot dispose of the properties held promptly,
further charges to earnings may not occur.
DEPOSITS
Total deposits increased $69.0 million, or 13.10%, from
$526.9 million at December 31, 1992, to $596.0 million at December 31,
1993. The acquisitions of Fontana First National Bank and Mid
City Bank accounted for approximately $43.0 million, or 62.0%, of
the $69.0 million increase in the Company's deposits for 1993.
Non-interest bearing demand deposits represented the largest
growth, increasing $64.1 million, or 40.73%, from $157.4 million
at December 31, 1992, to $221.6 million at December 31, 1993. As
a result of the increase, average non-interest bearing demand
deposits represented 32.0% of average deposits for the year ended
December 31, 1993. This compared with 27.96% of average deposits
for 1992.
Table 1 provides the average balances for each general
deposit category, including the associated costs for the years ended
December 31, 1991, 1992, and 1993. As average non-interest
bearing demand deposits have increased as a percent of total
average deposits for 1992 and 1993, average savings and time
deposits have decreased as a percent of total average deposits.
Average savings deposits, as a percent of average total deposits,
have decreased from 58.30% in 1991, to 55.56% for 1992, to 51.44%
for 1993. Average time deposits, as a percent of average total
deposits, have decreased from 17.00% in 1991, to 16.48% in 1992,
to 16.57%, for 1993. The change in the deposit mix has resulted
in a lower cost of average total deposits in 1992 and 1993.
Despite the changes in the deposit mix, the majority of funds
provided from customer deposits are derived from savings
deposits. Savings deposits include money market accounts as well
as traditional savings accounts.
Table 10 provides the remaining maturities of large
denomination ($100,000 or more) time deposits, including public
funds as of December 31, 1993.
46
TABLE 10 - Maturity Distribution of Large Denomination Time Deposits
(amounts in thousands)
December 31, 1993
3 months or less $27,242
Over 3 months through 6 months 7,732
Over 6 months through 12 months 6,716
Over 12 months 4,172
Total $45,862
LIQUIDITY
Liquidity is actively managed to ensure sufficient funds are
available to meet the ongoing needs of both the Bank and CVB.
This includes projections of future sources and uses of funds,
in addition to the maintenance of sufficient liquid reserves to
provide for unanticipated events.
For the Bank, sources of funds normally include interest and
principal payments on loans and investments, proceeds from
maturing or sold investments, and growth in deposits. Uses of
funds include withdrawal of deposits, interest paid on deposits,
advances or funding of new loans, purchases and operating
expenses. The Bank maintains funds as overnight federal funds
sold and other short term investment securities to provide
for short term liquidity needs. In addition, the Bank maintains
short term unsecured lines of credit of $50.0 million with
correspondent banks to provide for contingent liquidity
needs. At December 31, 1993, the Bank reported liquid assets,
including cash, federal funds sold, and unpledged investment
securities of $156.0 million. Liquid assets represented 22.7%
of total assets at December 31, 1993.
Since the primary sources and uses of funds for the Bank are
loans and deposits, the relationship between gross loans and
total deposits provides a useful measure of the Bank's liquidity.
Typically, the closer the ratio of loans to deposits is to 100%,
the more reliant the Bank is on its loan portfolio to provide for
short term liquidity needs. Since repayment of loans tends to be
less predictable than investments and other liquid resources, the
higher the loan to deposit ratio the less liquid the Bank. For
the year ended December 31, 1993, the Bank's loan to deposit
ratio averaged 74.7%, compared to an average ratio of 73.9% for
1992.
The liquidity ratio provides another measure of the Bank's
liquidity. This ratio is calculated by dividing the difference
between short term liquid assets from short term volatile
liabilities by the sum of loans and long term investments. This
ratio measures the percent of illiquid long term assets that are
being funded by short term volatile liabilities. As of December
31, 1993, this ratio was 2.72%, compared to a negative 1.7%, at
47
December 31, 1992.
CVB is a company separate and apart from the Bank that must
provide for its own liquidity. Substantially all of CVB's
revenues are obtained from dividends declared and paid by the
Bank. There are statutory and regulatory provisions that could
limit the ability of the Bank to pay dividends to CVB. At
December 31, 1993, approximately $20.0 million of the Bank's
equity was unrestricted and available to be paid as dividends to
CVB.
Management of CVB believes that such restrictions will not
have a significant impact on the ability of CVB to meet its
ongoing cash obligations. As of December 31, 1993, neither the
Bank nor CVB had any material commitments for capital
expenditures.
On November 16, 1993, the Company entered into a definitive
agreement and plan of reorganization (the Agreement) for the
Company to acquire, through merger, Western Industrial National
Bank (WIN). Chino Valley Bank will be the continuing operation.
The Company will provide to the shareholders of WIN $13.5
million, plus accrued earnings from December 31, 1993. WIN
currently has two branch offices located in South El Monte. WIN
reported total assets of $45.3 million, total deposits of $36.3
million, and gross loans of $37.5 million at December 31, 1993.
It is not anticipated that the acquisition will have a
significant effect on the Company's liquidity or its capital
ratios.
CAPITAL RESOURCES
Historically, the primary source of capital for the Company
has been the retention of operating earnings. The Company conducts
an ongoing assessment of projected sources and uses of capital in
conjunction with projected increases and anticipated mixes of
assets in order to maintain adequate levels of capital. Total
adjusted capital, shareholder equity plus allowance for credit
losses, was $68.8 million at December 31, 1993, representing an
increase of $10.3 million, or 17.6%, over total adjusted capital
of $58.5 million at December 31, 1992.
Bank regulators have established minimum capital adequacy
guidelines requiring that qualifying capital be at least 8.0% of
risk-based assets, of which at least 4.0% must be Tier 1 capital
(primarily stockholders' equity). These ratios represent minimum
capital standards. Under Prompt Corrective Action rules, certain
levels of capital adequacy have been established for financial
institutions. Depending on an institution's capital ratios, the
established levels can result in restrictions or limits on
permissible activities. The highest level for capital adequacy
under Prompt Corrective Action is "Well Capitalized". To
qualify for this level of capital adequacy an institution must
48
maintain a total risk-based capital ratio of at least 10.0%, a
Tier 1 risk-based capital ratio of at least 6.0%, and a leverage
ratio of at least 5.0%. At December 31, 1993, the Company
exceeded all of the minimum capital ratios required to be
considered well capitalized.
At December 31, 1993, the Company's total risk-based capital
ratio was 13.1% compared to 13.7% on December 31, 1992. The
ratio of Tier I capital to risk weighted assets was 11.8% at
December 31, 1993, compared to a ratio of 13.3% for December 31,
1992. The decrease in the risk-based capital ratios during 1993
reflects increases in risk weighted assets greater than increases
in both Tier I and total adjusted capital. The Company's risk-
based capital ratio was also affected by $2.0 million in goodwill
that resulted from the acquisition of Fontana First National
Bank.
In addition to the aforementioned requirement, the Company
and Bank must also meet minimum leverage ratio standards. The
leverage ratio is calculated as Tier 1 capital divided by the
most recent quarterly period's average total assets. As of
December 31, 1993, the Company's leverage ratio was 8.4%, down
from a ratio of 9.2% at December 31, 1992. The Bank's leverage
ratio was 8.3% at the 1993 year end, down from 8.9% at December
31, 1992. Banking regulators have established 3.0% as the
minimum leverage ratio. However, institutions experiencing or
anticipating significant growth or those with other than minimum
risk profiles are expected to maintain a leverage ratio in excess
of the minimum.
During 1992, the Board of Directors of the Company declared
quarterly cash dividends that totaled 32 cents per share for the
full year (29 cents per share after retroactive adjustment for
the ten percent stock dividend declared on December 15,
1993). After retroactive adjustment, cash dividends declared
during 1993 was equal to dividends paid for 1992. Management
does not believe that the continued payment of cash dividends
will impact the ability of the Company to exceed the current
minimum capital standards.
49
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
CVB Financial Corp.
Index to consolidated Financial Statements
and Financial Statement Schedules
Consolidated Financial Statements
Page
Consolidated Balance Sheets -- 51
December 31, 1993 and 1992
Consolidated Statements of Earnings
Year Ended December 31, 1993,
1992 and 1991 52
Consolidated Statements of
Stockholders' Equity Year Ended
December 31, 1993, 1992 and 1991 53
Consolidated Statements of Cash Flows
for the Year Ended December 31,
1993, 1992 and 1991 54
Notes to Consolidated Financial Statements 57
Independent Auditors' Report 79
All schedules are omitted because they are not applicable, not
material or because the information is included in the financial statements
or the notes thereto.
50
CONSOLIDATED BALANCE SHEETS - DECEMBER 31, 1993 AND 1992
December 31
ASSETS 1993 1992
Federal funds sold $ 15,000,000 $ 12,290,000
Investment securities held for investment,
at cost [market value of $9,506,000 (1993)
and $107,945,000 (1992) (Note 2)] 9,153,916 103,965,120
Investment securities held for sale,
at lower of cost or market [market value
of $141,378,000 (1993) and $17,462,000
(1992) (Note 2)] 140,364,947 17,088,577
Loans and lease finance receivables,
net (Notes 3, 4 and 5) 442,083,848 374,661,538
Total earning assets 606,602,711 508,005,235
Cash and due from banks (Note 12) 45,852,849 58,939,035
Premises and equipment, net (Note 6) 9,065,950 7,856,316
Other real estate owned (Note 5) 9,768,298 8,796,678
Other assets 16,118,149 8,500,593
Total Assets $687,407,957 $592,097,857
LIABILITIES AND STOCKHOLDERS' EQUITY
Liabilities:
Deposits (Note 8)
Noninterest-bearing $221,552,597 $157,428,049
Interest-bearing 374,403,704 369,495,372
595,956,301 526,923,421
Demand note to U.S. Treasury 14,205,027 6,652,757
Other liabilities 17,289,097 6,483,464
627,450,425 540,059,642
Commitments and contingencies (Note 9)
Stockholders' equity (Notes 11 and 12):
Preferred stock - authorized, 20,000,000
shares without par value; no shares issued
or outstanding Common stock - authorized,
50,000,000 shares without par value; issued
and outstanding, 7,274,582 (1993) and
6,577,865 (1992) 20,619,439 11,866,467
Retained earnings 39,338,093 40,171,748
59,957,532 52,038,215
Total Liabilities and Stockholders' Equity $687,407,957 $592,097,857
51
CONSOLIDATED STATEMENTS OF EARNINGS
THREE YEARS ENDED DECEMBER 31, 1993
Year Ended December 31
1993 1992 1991
INTEREST INCOME:
Loans, including fees $ 37,036,068 $ 34,762,460 $ 40,491,397
Investment securities:
Taxable 8,187,804 8,681,623 6,594,842
Tax-advantaged 131,424 354,587 658,407
8,319,228 9,036,210 7,253,249
Federal funds sold 413,834 414,475 1,096,701
45,769,130 44,213,145 48,841,347
INTEREST EXPENSE:
Deposits (Note 8) 9,657,636 11,979,025 19,021,807
Other borrowings 220,127 213,913 358,594
9,877,763 12,192,938 19,380,401
NET INTEREST INCOME BEFORE PROVISION
FOR CREDIT LOSSES 35,891,367 32,020,207 29,460,946
PROVISION FOR CREDIT LOSSES (Note 5) 1,720,000 1,772,109 604,000
NET INTEREST INCOME AFTER PROVISION
FOR CREDIT LOSSES 34,171,367 30,248,098 28,856,946
OTHER OPERATING INCOME:
Service charges on deposit accounts 5,214,765 5,046,780 4,488,567
Investment securities gains, net 3,721,041 261,531 716,608
Service charges on item processing 0 870,505 638,630
Other 1,809,115 1,718,980 1,195,092
10,744,921 7,897,796 7,038,897
- -CONTINUED-
52
CONSOLIDATED STATEMENTS OF EARNINGS - CONTINUED
Years Ended December 31
1993 1992 1991
OTHER OPERATING EXPENSES:
Salaries, wages and employee
benefits (Notes 10 and 11) 14,439,434 13,477,361 13,664,021
Occupancy (Note 9) 2,169,864 2,039,830 1,928,636
Equipment 1,526,519 1,446,283 1,551,331
Deposit insurance premiums 1,175,710 1,084,848 943,696
Stationery and supplies 1,068,657 982,332 854,992
Professional services 1,713,993 1,167,465 823,195
Data processing 877,542 819,765 746,285
Promotion 1,115,182 741,972 690,023
Other real estate owned expense
(Note 5) 3,834,015 305,768 103,651
Other 1,432,843 1,353,765 1,403,953
29,353,759 23,419,389 22,709,783
EARNINGS BEFORE INCOME TAXES 15,562,529 14,726,505 13,186,060
INCOME TAXES (Note 7) 6,040,178 5,711,445 5,217,380
NET EARNINGS $ 9,522,351 $ 9,015,060 $ 7,968,680
NET EARNINGS PER COMMON SHARE $ 1.27 $ 1.23 $ 1.10
53
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
THREE YEARS ENDED DECEMBER 31, 1993
Common Shares Common Retained
Outstanding Stock Earnings
BALANCE, JANUARY 1, 1991 5,829,708 $ 5,527,861 $32,837,406
Repurchase of common shares (75,007) (139,673) (779,217)
Common stock issued under
stock option plan 80,284 247,870
Tax benefit from exercise of
certain stock options 204,159
Cash dividends (1,678,108)
Net earnings 7,968,680
BALANCE, DECEMBER 31, 1991 5,834,985 5,636,058 38,552,920
Common stock issued under stock option plan
and deferred compensation agreements 145,131 477,075
10% stock dividend, declared on December 16,
1992 and distributed on January 19, 1993 597,749 5,753,334 (5,753,334)
Tax benefit from exercise of certain stock
options 294,926
Cash dividends (1,937,824)
Net earnings 9,015,060
BALANCE, DECEMBER 31, 1992 6,577,865 11,866,467 40,171,748
Common stock issued under stock option plan
and deferred compensation agreements 35,753 490,922
10% stock dividend, declared on December 15,
1993 and distributed on January 17, 1994 660,964 8,262,050 (8,262,050)
Tax benefit from exercise of certain
stock options 17,485
Cash dividends (2,111,441)
Net earnings 9,522,351
BALANCE, DECEMBER 31, 1993 7,274,582 $20,619,439 $39,338,093
See accompanying notes to the consolidated financial statements.
54
CONSOLIDATED STATEMENTS OF CASH FLOWS
THREE YEARS ENDED DECEMBER 31, 1993
Year Ended December 31
1993 1992 1991
CASH FLOWS FROM OPERATING ACTIVITIES:
Interest received $ 45,518,868 $ 43,876,733 $ 48,529,441
Service charges and other fees received 7,023,880 7,636,265 6,322,289
Interest paid (10,246,921) (12,533,022) (19,721,849)
Cash paid to suppliers and
employees (25,509,643) (23,574,465) (22,784,702)
Income taxes paid (6,145,842) (5,935,205) (5,453,759)
Net cash provided by operating activities 10,640,342 9,470,306 6,891,420
CASH FLOWS FROM INVESTING ACTIVITIES:
Proceeds from sales of investment securities 63,864,087 27,648,498 28,672,242
Proceeds from maturities of investment securities 42,248,230 70,400,000 57,300,000
Purchases of investment
securities (117,560,921) (116,737,235) (101,280,042)
Net increase in loans (35,577,319) (23,009,386) (8,269,407)
Loan origination fees received 2,394,180 3,418,808 2,648,969
Proceeds from sale of other real estate owned 2,374,291 6,847,215 535,584
Proceeds from sale of premises and equipment 24,212 168,442 68,277
Purchases of premises and
equipment (2,324,386) (539,484) (355,630)
Payment for purchase of Fontana First
National Bank (5,043,323)
Other investing activities (2,843,235) (192,085) (894,659)
Net cash used in investing activities (52,444,184) (31,995,227) (21,574,666)
CASH FLOWS FROM FINANCING ACTIVITIES:
Net increase in noninterest-bearing
deposits and money market and savings accounts 28,949,459 31,675,700 44,783,882
Net decrease in time certificates of deposit (14,064,629) (4,559,392) (7,868,036)
Net increase (decrease) in short-term borrowings 5,246,056 (3,489,421) 6,053,474
Cash dividends on common stock (2,111,441) (1,937,824) (1,678,108)
Repurchases of common shares (918,890)
Proceeds from exercise of stock options 106,173 477,075 247,870
Net cash provided by financing activities 18,125,618 22,166,138 40,620,192
NET (DECREASE) INCREASE IN CASH AND CASH EQUIVALENTS (23,678,224) (358,783) 25,936,946
CASH AND CASH EQUIVALENTS, beginning of year 71,229,035 71,587,818 45,650,872
CASH AND CASH EQUIVALENTS, BEFORE ACQUISTIONS 47,550,811 71,229,035 71,587,818
Cash & cash equivalents received in purchase of Fontana
First National Bank 8,235,436 0 0
Cash & cash equivalents received in purchase of
Mid City Bank 5,066,602 0 0
CASH AND CASH EQUIVALENTS, end of year $ 60,852,849 $ 71,229,035 $ 71,587,818
- -CONTINUED-
55
CONSOLIDATED STATEMENTS OF CASH FLOWS - CONTINUED
Reconciliation of Net Earnings to Net Cash
Provided by Operating Activities
Year Ended December 31
1993 1992 1991
Net earnings $ 9,522,351 $ 9,015,060 $ 7,968,680
Adjustments to reconcile net earnings to net cash
provided by operating activities:
Gain on sales of investment securities (3,724,956) (333,000) (882,000)
Loss on sales of investment securities 3,915 71,469 165,392
Gain on sale of other real estate owned (5,967) (445,844) (39,799)
Amortization of premiums on investment securities 710,718 738,017 526,475
Provision for credit losses 1,720,000 1,772,109 604,000
Provision for losses on other real estate owned 2,830,000 100,000
Accretion of deferred loan fees and costs (1,628,527) (1,164,459) (812,664)
Loan fees and costs deferred (1,328,458) (2,262,235) (1,108,951)
Depreciation and amortization 1,097,152 1,143,873 1,273,660
Change in accrued interest receivable 667,547 90,030 (25,717)
Change in accrued interest payable (369,158) (340,084) (341,448)
Deferred tax benefit (944,053) (806,201) (299,910)
Change in other assets and liabilities 2,089,778 1,891,571 (136,298)
Total Adjustments 1,117,991 455,246 (1,077,260)
Net cash provided by operating activities $ 10,640,342 $ 9,470,306 $ 6,891,420
SUPPLEMENTAL SCHEDULE OF NONCASH
INVESTING AND FINANCING ACTIVITIES:
Real estate acquired through foreclosure $ 5,204,093 $ 12,157,502 $ 4,275,587
Purchase of Fontana First National Bank:
Cash and cash equivalents acquired $ (8,235,436)
Fair value of other assets acquired (18,622,708)
Fair value of liabilities assumed 23,708,377
Goodwill (1,893,556)
Cash paid for purchase of Fontana National Bank $ (5,043,323)
Purchase of Mid City Bank, N.A.:
Cash and cash equivalents acquired $ (6,580,408)
Fair value of other assets acquired (25,466,359)
Fair value of liabilities assumed 79,273,984
Goodwill (50,000)
Cash received for purchase of Mid City Bank,
N.A. from the FDIC $ 47,177,217
The $79,273,984 of liabilities assumed in the Mid City Bank
acquisition includes $62,695,886 of time certificates of
deposit, of which $48,691,023 was withdrawn within 30 days of
acquisition date and is not reflected in the statement of cash flows.
See accompanying notes to the consolidated financial statements.
56
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
THREE-YEAR PERIOD ENDED DECEMBER 31, 1993
1.SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
The accounting and reporting policies of CVB Financial Corp. and
subsidiaries are in accordance with generally accepted accounting
principles and conform to practices within the banking industry. A summary
of the significant accounting policies consistently applied in the
preparation of the accompanying consolidated financial statements follows:
Principles of Consolidation - The consolidated financial statements
include the accounts of CVB Financial Corp. (the "Company") and its wholly
owned subsidiaries, Chino Valley Bank (the "Bank"), Community Trust Deed
Services and Premier Results, Inc., after elimination of all material
intercompany transactions and balances.
Investment Securities Held for Sale - The Bank has identified those
investment securities which may be sold prior to maturity. These assets
have been classified as held for sale on the accompanying consolidated
balance sheet and are recorded at the lower of amortized cost or market
value on an aggregate basis by type of asset.
Investment Securities Held for Investment - Investment securities,
excluding those held for sale, are carried at amortized cost, adjusted for
amortization of premiums and accretion of discounts over the estimated
terms of the assets using the interest method. Such amortization and
accretion are included in interest income. Sales of certain of these
assets could occur if unforeseen circumstances arise, and any gain or loss
on sale would be calculated based on the specific identification method.
The carrying value of these assets is not adjusted for temporary declines
in market value because the Bank intends and has the ability to hold them
to maturity. Equity securities are accounted for at the lower of aggregate
cost or market.
Loans and Lease Finance Receivables - Loans and lease finance
receivables are reported at the principal amount outstanding, less deferred
net loan origination fees and the allowance for credit losses. Interest on
loans and lease finance receivables is credited to income based on the
principal amount outstanding. Interest income is not recognized on loans
and lease finance receivables when collection of interest is deemed by
management to be doubtful.
The Bank receives collateral to support loans, lease finance
receivables and commitments to extend credit for which collateral is deemed
necessary. The most significant category of collateral is real estate,
principally commercial and industrial income-producing properties.
57
Nonrefundable fees and direct costs associated with the origination or
purchase of loans are deferred and netted against outstanding loan
balances. The deferred net loan fees and costs are recognized in interest
income over the loan term in a manner that approximates the level-yield
method.
Provision and Allowance for Credit Losses - The determination of the
balance in the allowance for credit losses is based on an analysis of the
loan and lease finance receivables portfolio and reflects an amount that,
in management's judgment, is adequate to provide for potential credit
losses after giving consideration to the character of the loan portfolio,
current economic conditions, past credit loss experience and such other
factors as deserve current recognition in estimating credit losses. The
provision for credit losses is charged to expense.
Premises and Equipment - Premises and equipment are stated at cost
less accumulated depreciation, which is computed principally on the
straight-line method over the estimated useful lives of the assets.
Property under capital lease and leasehold improvements are amortized over
the shorter of their economic lives or the initial term of the lease.
Other Real Estate Owned - Other real estate owned, shown net of an
allowance for losses of $1,650,903 and $100,000 at December 31, 1993 and
1992, respectively, represents real estate acquired through foreclosure in
satisfaction of commercial and real estate loans and is stated at the lower
of the fair value minus estimated costs to sell or cost (fair value at time
of foreclosure). Loan balances in excess of fair value of the real estate
acquired at the date of acquisition are charged against the allowance for
credit losses. Any subsequent operating expenses or income, reduction in
estimated values, and gains or losses on disposition of such properties are
charged to current operations.
Goodwill - Goodwill of $2.1 million, net of amortization of $116,000
resulting from the acquisition of Fontana First National Bank during March
1993, and the excess purchase premium of $50,000 paid on assuming the
deposits of Mid City Bank, N.A. in October 1993, are included in other
assets. Goodwill is amortized on a straight-line basis over 15 years.
Income Taxes - In the fourth quarter of 1992, the Company adopted
Statement of Financial Accounting Standards ("SFAS") No. 109, "Accounting
for Income Taxes." Under SFAS No. 109, deferred income taxes are
recognized for the tax consequences in future years of differences between
the tax basis of assets and liabilities and their financial reporting
amounts at each year-end based on enacted tax laws and statutory tax rates
applicable to the periods in which the differences are expected to affect
taxable income. Prior years' financial statements have not been restated
for the accounting change.
58
Earnings per Common Share - Earnings per common share are computed on
the basis of the weighted average number of common shares outstanding
during the year plus shares issuable upon the assumed exercise of
outstanding common stock options (common stock equivalents). The weighted
average number of common shares outstanding and common stock equivalents
was 7,511,884 (1993), 7,357,187 (1992) and 7,220,967 (1991). Earnings per
common share and stock option amounts have been retroactively restated to
give effect to all stock splits and dividends.
Statement of Cash Flows- Cash and cash equivalents as reported in the
statement of cash flows include cash and due from banks and federal funds
sold.
Recent Accounting Pronouncements - In May 1993, the Financial
Accounting Standards Board ("FASB") issued SFAS No. 114, "Accounting by
Creditors for Impairment of a Loan." This statement prescribes that a loan
is impaired when it is probable that a creditor will be unable to collect
all amounts due (principal and interest) according to the contractual terms
of the loan agreement. Measurement of the impairment can be based on the
expected future cash flows of an impaired loan, which are to be discounted
at the loan's effective interest rate, or impairment can be measured by
reference to an observable market price, if one exists, or the fair value
of the collateral. Collateral-dependent loans for which foreclosure is
probable must be measured at the fair value of the collateral.
Additionally, the statement prescribes measuring impairment of a
restructured loan by discounting the total expected future cash flows at
the loan's effective rate of interest in the original loan agreement.
Finally, the impact of initially applying the statement is reported as a
part of the provision for credit losses. The Company must adopt this
standard by 1995. The Company has not yet determined the impact of the
adoption of this statement or when the Company will adopt this statement.
In May 1993, the FASB also issued SFAS No. 115, "Accounting for
Certain Investments in Debt and Equity Securities." This statement
addresses the accounting and reporting for investments in equity securities
that have readily determinable fair values, and all investments in debt
securities. Under this statement, securities will be classified into three
categories as follows:
Held-to-Maturity Securities - Debt securities that the Company has the
positive intent and ability to hold to maturity. These securities are to
be reported at amortized cost.
Trading Securities - Debt and equity securities that are bought and
held principally for the purpose of selling them in the near term. These
securities are to be reported at fair value with unrealized gains and
losses included in earnings.
59
Available-for-Sale Securities - Debt and equity securities not
classified as either held-to-maturity or trading securities. These
securities are to be reported at fair value, with unrealized gains and
losses excluded from earnings and reported as a separate component of
stockholders' equity (net of tax effects).
The Company has elected to adopt SFAS No. 115 as of January 1, 1994.
If the Company had adopted SFAS No. 115 as of December 31, 1993,
stockholders' equity would have been increased by approximately $620,000,
net of $394,000 of applicable income taxes.
Reclassifications - Certain reclassifications were made to prior
years' presentations to conform them to the current-year presentation.
These reclassifications are of a normal recurring nature.
2.INVESTMENT SECURITIES
The amortized cost and estimated market value of investment
securities held for investment and investment securities held for sale are
shown below. All securities held are publicly traded, and estimated
market value was obtained from an independent pricing service.
December 31, 1993
Gross Gross
Amortized Unrealized Unrealized Market
Cost Gains Losses Value
Investment Securities Held
for Investment:
Mortgage-backed securities $ 3,296,842 $ 247,589 $ (2,431) $ 3,542,000
Municipal bonds 5,857,074 106,926 5,964,000
$ 9,153,916 $ 354,515 $ (2,431) $ 9,506,000
Investment Securities Held
for Sale:
U.S. Treasury securities $32,923,410 $1,343,442 $ (4,852) $34,262,000
Mortgage-backed securities 22,579,203 76,253 (13,456) 22,642,000
CMO/REMIC 69,862,334 26,886 (420,220) 69,469,000
Government Agency Fund 15,000,000 5,000 15,005,000
$140,364,947 $1,451,581 $ (438,528) $141,378,000
60
December 31, 1992
Gross Gross
Amortized Unrealized Unrealized Market
Cost Gains Losses Value
Investment Securities Held
for Investment:
U.S. Treasury securities $ 71,628,597 $ 3,736,403 $ 75,365,000
Auction rate preferred stock 10,800,000 10,800,000
Mortgage-backed securities 21,536,523 473,836 $(230,359) 21,780,000
$103,965,120 $ 4,210,239 $(230,359) $107,945,000
Investment Securities Held for Sale -
U.S. Treasury securities $ 17,088,577 $ 373,423 $ - $ 17,462,000
The CMO/REMIC securities noted above represent collateralized mortgage
obligations and real estate mortgage investment conduits. All are issues
of U.S. government agencies that guarantee payment of principal and
interest of the underlying mortgages. All CMO/REMIC securities in the
Bank's investment portfolio have met or surpassed the Federal Financial
Institutions Examination Council's three-part test.
At December 31, 1993 and 1992, investment securities having an
amortized cost of approximately $38,780,000 and $42,553,000, respectively,
were pledged to secure public deposits and for other purposes as required
or permitted by law.
The amortized cost and market value of debt securities at December 31,
1993, by contractual maturity, are shown below. Although mortgage-backed
securities/CMO/REMIC have contractual maturities through 2019, expected
maturities will differ from contractual maturities because borrowers may
have the right to prepay such obligations without penalty.
Weighted
Amortized Market Average
Cost Value Yield
Due in one year or less $ 27,997,692 $ 28,185,000 6.40 %
Due after one year through five years 25,782,792 27,046,000 7.10 %
53,780,484 55,231,000 6.74%
Mortgage-backed securities/CMO/REMIC 95,738,379 95,653,000 5.67 %
$149,518,863 $150,884,000 6.05 %
61
3.LOANS AND LEASE FINANCE RECEIVABLES
The Bank grants loans to its customers throughout its primary market
in the San Gabriel Valley and Inland Empire areas of Southern California,
which has recently experienced adverse economic conditions, including
declining real estate values. These factors have adversely affected
certain borrowers' ability to repay loans. Although management believes the
level of allowances for loan losses is adequate to absorb losses inherent
in the loan portfolio, additional declines in the local economy may result
in increasing loan losses that cannot be reasonably predicted at December
31, 1993.
The Bank makes loans to borrowers in a number of different industries.
No industry had aggregate loan balances exceeding 10% of the December 31,
1993 or 1992 loan and lease finance receivables balance. At December 31,
1993 the Bank's loan portfolio included approximately $322.9 million of
loans secured by commercial and residential real estate properties.
The following is a summary of the components of loan and lease
finance receivables:
December 31
1993 1992
Commercial, financial and industrial $282,177,282 $260,321,437
Real estate:
Construction 56,358,172 43,879,362
Mortgage 79,929,218 61,618,937
Loans to individuals for household, family and
other consumer expenditures 12,516,627 11,642,170
Municipal lease finance receivables 21,555,980 5,500,997
452,537,279 382,962,903
Less:
Allowance for credit losses (Note 5) 8,849,442 6,461,345
Deferred net loan origination fees 1,603,989 1,840,020
$442,083,848 $374,661,538
The following is a summary of nonperforming loans at December
31, 1993 and 1992:
62
December 31
1993 1992
Loans contractually past due 90 or more
days and continuing to accrue interest $ 272,000
Nonaccrual $12,492,000 6,642,000
Troubled debt restructurings 770,000 3,291,000
$13,262,000 $10,205,000
Interest foregone on nonperforming loans outstanding during the years
ended December 31, 1993, 1992 and 1991 amounted to approximately
$1,186,000, $698,600, and $1,037,200, respectively.
4.TRANSACTIONS INVOLVING DIRECTORS AND SHAREHOLDERS
In the ordinary course of business, the Bank has granted loans to certain
directors, executive officers and the businesses with which they are
associated. All such loans and commitments to lend were made under terms
that are consistent with the Bank's normal lending policies.
The following is an analysis of the activity of all such loans:
December 31
1993 1992
Outstanding balance, beginning of year $ 3,415,000 $2,971,000
Credit granted, including renewals 3,088,000 802,000
Repayments 3,430,000 (358,000)
Outstanding balance, end of year $ 3,073,000 $3,415,000
63
5.ALLOWANCE FOR CREDIT AND OTHER REAL ESTATE OWNED LOSSES
Activity in the allowance for credit losses was as follows:
December 31
1993 1992 1991
Balance, beginning of year $ 6,461,345 $5,262,614 $5,091,679
Provision charged to operations 1,720,000 1,772,109 604,000
Loans charged off (1,018,370) (687,360) (478,038)
Additions to allowance resulting from
acquisitions 1,586,995
Recoveries on loans previously charged off 99,472 113,982 44,973
Balance, end of year $ 8,849,442 $6,461,345 $5,262,614
Activity in the allowance for other real estate owned losses was
as follows:
December 31,
1993 1992
Balance, beginning of year $ 100,000
Provision charged to operations 2,830,000 $100,000
Charge-offs of real estate owned (1,279,097)
$ 1,650,903 $100,000
The Company incurred expenses of $1,004,015 (1993), $205,768
(1992) and $103,651 (1991) related to the holding and disposition of
other real estate owned.
6.PREMISES AND EQUIPMENT
Premises and equipment consist of:
December 31
1993 1992
Land $ 911,845 $ 911,845
Bank premises 3,846,426 3,846,426
64
Furniture and equipment 13,010,578 10,773,059
Leased property under capital lease 649,330 649,330
18,418,179 16,180,660
Less accumulated depreciation and
amortization 9,352,229 8,324,344
$ 9,065,950 $ 7,856,316
7.INCOME TAXES
In 1992, the Company adopted SFAS No. 109, "Accounting for Income Taxes."
Under the provisions of SFAS No. 109, the Company elected not to restate
prior year financial statements, and has determined that the cumulative
effect of implementation was immaterial.
65
Income tax expense (benefit) comprised the following:
Year Ended December 31,
1993 1992 1991
Current provision:
Federal $5,088,401 $4,792,091 $4,059,546
State 1,895,830 1,725,555 1,457,744
6,984,231 6,517,646 5,517,290
Deferred provision (benefit):
Federal (728,828) (601,578) (245,004)
State (215,225) (204,623) (54,906)
(944,053) (806,201) (299,910)
$6,040,178 $5,711,445 $5,217,380
Income tax liability (asset) comprised the following:
December 31,
1993 1992
Current:
Federal $ (348,630) $ 850,125
State 30,332 105,799
(318,298) 955,924
Deferred:
Federal (2,765,334) (2,036,506)
State (846,040) (630,815)
(3,611,374) (2,667,321)
$(3,929,672) $(1,711,397)
66
The components of the net deferred tax asset are as follows:
Year Ended December 31,
1993 1992
Federal
Deferred tax liabilities:
Depreciation $ 339,666 $ 309,929
Leases 220,959 228,252
Other 9,605
Gross deferred tax liability 570,230 538,181
Deferred tax assets:
California franchise tax 367,426 389,235
Bad debt and credit loss deduction 2,390,322 1,925,299
Other real estate owned reserves 577,816
Other 260,153
Gross deferred tax asset 3,335,564 2,574,687
Net deferred tax asset - federal $2,765,334 $2,036,506
Year Ended December 31,
1993 1992
State
Deferred tax liabilities -
Depreciation $ 128,818 $ 103,734
Gross deferred tax liability 128,818 103,734
Deferred tax assets:
Bad debt and credit loss deduction 743,848 724,222
Other real estate owned reserves 183,366
Other 47,644 10,327
Gross deferred tax asset 974,858 734,549
Net deferred tax asset - state $ 846,040 $ 630,815
67
No valuation allowance under SFAS No. 109 was required. Deferred tax
assets would be fully realized as an offset against reversing temporary
differences, which create net future tax liabilities, or through loss
carrybacks. Therefore, even if no future income was expected, deferred tax
assets would still be fully realized.
A reconciliation of the statutory income tax rate to the consolidated
effective income tax rate follows:
Year Ended December 31,
1993 1993 1992 1992 1991 1991
Amount Percent Amount Percent Amount Percent
Federal income
tax at
statutory rate $5,342,369 34.3% $5,007,012 34.0% $4,483,260 34.0%
State franchise
taxes, net of
federal income
tax benefit 1,140,830 7.3 1,069,825 7.3 926,261 7.0
Other, net (443,021) (2.8) (365,392) (2.5) (192,141) (1.5)
$6,040,178 38.8% $5,711,445 38.8% $5,217,380 39.5%
8.DEPOSITS
Time certificates of deposit with balances of $100,000 or more
amounted to approximately $45,862,000 and $43,887,000 at December 31, 1993
and 1992, respectively. Interest expense on such deposits amounted to
approximately $1,804,000 (1993), $2,044,000 (1992) and $2,856,000 (1991).
68
9.COMMITMENTS AND CONTINGENCIES
The Bank leases land and buildings under operating leases for varying
periods extending to 2014, at which time the Bank can exercise options that
could extend the leases to 2027. The future minimum annual rental payments
required, which have initial or remaining noncancelable lease terms in
excess of one year as of December 31, 1993, excluding property taxes and
insurance, are approximately as follows:
1994 $ 1,548,000
1995 1,498,000
1996 1,458,000
1997 1,444,000
1998 1,461,000
Succeeding years 6,475,000
Total minimum payments required $13,884,000
Total rental expense was approximately $1,449,000 (1993), $1,460,000
(1992) and $1,223,000 (1991).
At December 31, 1993, the Bank had commitments to extend credit of
approximately $61,543,000 and obligations under letters of credit of
$7,182,000. Commitments to extend credit are agreements to lend to
customers provided 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. Commitments are
generally variable rate, and many of these commitments are expected to
expire without being drawn upon. As such, the total commitment amounts do
not necessarily represent future cash requirements. The Company uses the
same credit underwriting policies in granting or accepting such commitments
or contingent obligations as it does for on-balance-sheet instruments,
evaluating customers' creditworthiness individually.
Standby letters of credit written are conditional commitments issued
by the Company to guarantee the financial performance of a customer to a
third party. Those guarantees are primarily issued to support private
borrowing arrangements. The credit risk involved in issuing letters of
credit is essentially the same as that involved in extending loan
facilities to customers. When deemed necessary, the Company holds
appropriate collateral supporting those commitments. Management does not
anticipate any material losses as a result of these transactions.
In the ordinary course of business, the Company becomes involved in
litigation. In the opinion of management and based upon discussions with
legal counsel, the disposition of such litigation will not have a material
effect on the Company's consolidated financial position.
69
During 1993 the Company executed a definitive agreement that provides
for its acquisition of Western Industrial National Bank ("WIN") through a
merger of WIN and the Bank. At December 31, 1993, WIN had deposits, loans
and shareholders' equity of $36.3 million, $36.6 million and $8.4 million,
respectively. Management currently expects the acquisition to be
consummated during the second quarter of 1994.
10.EMPLOYEE PROFIT SHARING PLAN
The Bank sponsors a noncontributory profit-sharing plan for the
benefit of its employees. Employees are eligible to participate in the
plan after 12 months of consecutive service provided they have completed
1,000 service hours in the plan year. Contributions to the plan are
determined by the Board of Directors. Contributions are limited to 15% of
the compensation of eligible participants. The Bank contributed
approximately $680,000 (1993), $639,000 (1992) and $760,000 (1991).
11.STOCK OPTION PLANS
The Company has a plan under which options to purchase shares of the
Company's common stock have been and may be granted to certain officers and
directors. The plan authorizes the issuance of up to 1,028,500 shares.
Option prices under the plan are to be at the fair market value of such
shares on the date of grant, and options are exercisable in such
installments as determined by the Board of Directors. Each option shall
expire no later than ten years from the grant date. Additional options
have been granted to certain officers and directors under a plan that
expired during 1991. Although no more options can be granted under the
expired plan, the options granted thereunder will remain outstanding until
they are exercised or canceled pursuant to their terms.
70
At December 31, 1993, options for the purchase of 482,555 shares of
the Company's common stock were outstanding, of which options to purchase
119,143 shares were exercisable at prices ranging from $2.66 to $14.50;
573,271 shares of common stock were available for the granting of future
options. Status of all optioned shares is as follows:
Shares Price Range
Outstanding at January 1, 1991 641,570 $ 2.66 - $16.14
Granted 348,810 $ 11.71 - $12.62
Exercised (88,312) $ 2.66 - $ 3.97
Canceled (285,718) $ 3.99 - $16.14
Outstanding at December 31, 1991 616,350 $ 2.66 - $12.62
Granted 348,398 $ 7.50 - $10.45
Exercised (159,645) $ 2.66 - $ 7.50
Canceled (350,460) $ 2.66 - $10.68
Outstanding at December 31, 1992 454,643 $ 2.66 - $12.62
Granted 55,745 $ 10.88 - $14.50
Exercised (13,753) $ 7.50 - $11.70
Canceled (14,080) $ 7.50 - $11.71
Outstanding at December 31, 1993 482,555 $ 2.66 - $14.50
In 1993 and 1992, the Company granted to a key executive 22,000 and
10,000 shares, respectively, of the Company's common stock in accordance
with his compensation agreement. The agreement also provides for the
granting of an additional 60,500 shares through 1996 for which the
executive is entitled to receive stock and cash dividends.
12.REGULATORY MATTERS
Section 23A of the Federal Reserve Act restricts the Bank from making
loans or advances to the Company and other affiliates in excess of 20% of
the Bank's capital stock and surplus.
In addition, California Banking Law limits the amount of dividends
that a bank can pay without obtaining prior approval from bank regulators.
Under this law, the Bank could, as of December 31, 1993, declare and pay
dividends of approximately $18,025,000 to the Company. The remaining
amount of Bank equity of approximately $41,265,000 is restricted with
respect to dividends and represents 70% of consolidated stockholders'
equity.
71
As of December 31, 1993, the Company and the Bank were required to
meet the risk-based capital standard set by the respective regulatory
authorities. The risk-based capital standards require the achievement of a
minimum ratio of total capital to risk-weighted assets of 8.0% (of which at
least 4.0% must be Tier 1 capital, which consists primarily of common stock
and retained earnings, less goodwill). Additionally, the regulatory
authorities require the highest rated institutions to maintain a minimum
leverage ratio of 3% as of December 31, 1993. The leverage ratio basically
consists of Tier 1 capital divided by average total assets. Institutions
experiencing or anticipating significant growth or those with high or
inordinate levels of risk are expected to maintain a leverage ratio well
above the minimum level, e.g., 4% or 5%. The leverage ratio will operate
in conjunction with the risk-based capital guidelines. The capital ratios
of the Company and Bank at December 31, 1993 and 1992 are as follows:
Company Bank Minimum
1993
Risk-Based Capital Ratio:
Tier 1 11.8% 11.7% 4.00%
Total 13.1% 13.0% 8.00%
Leverage Ratio 8.4% 8.3% 3.00%
1992
Risk-Based Capital Ratio:
Tier 1 12.4% 12.1% 4.00%
Total 13.7% 13.3% 8.00%
Leverage Ratio 9.2% 8.9% 3.00%
Banking regulations require that all banks maintain a percentage of
their deposits as reserves at the Federal Reserve Bank. During the year
ended December 31, 1993, required reserve balances averaged approximately
$11,099,000.
72
13.CONDENSED FINANCIAL INFORMATION OF PARENT COMPANY
BALANCE SHEETS
(In thousands)
December 31,
1993 1992
Assets:
Investment in Chino Valley Bank $59,290 $50,410
Other assets, net 782 1,628
Total assets $60,072 $52,038
Liabilities $ 114
Stockholders' equity 59,958 $52,038
Total liabilities and stockholders' equity $60,072 $52,038
STATEMENTS OF EARNINGS
(In thousands, except per-share amounts)
Year Ended December 31,
1993 1992 1991
Equity in earnings of Chino Valley Bank $9,935 $8,941 $8,075
Other (expense) income, net (413) 74 (106)
Net earnings $9,522 $9,015 $7,969
Dividends received from Chino Valley Bank $6,098 $ 956 $1,872
73
STATEMENTS OF CASH FLOWS
(In thousands)
Year Ended December 31,
1993 1992 1991
CASH FLOWS FROM OPERATING ACTIVITIES:
Net earnings $ 9,522 $ 9,015 $ 7,969
Adjustments to reconcile net earnings to cash
provided by (used in) operating activities:
Earnings of Chino Valley Bank (9,935) (8,941) (8,075)
Other operating activities, net 1,405 (599) (382)
Total adjustments (8,530) (9,540) (8,457)
Net cash provided by
(used in) operating activities 992 525 (488)
CASH FLOWS FROM INVESTING ACTIVITIES:
Distributed earnings of Chino Valley Bank 6,098 956 1,872
Investment in subsidiaries (4,693)
Net cash provided by
investing activities 1,405 956 1,872
CASH FLOWS FROM FINANCING ACTIVITIES:
Cash dividends on common stock (2,111) (1,938) (1,678)
Repurchases of common shares (919)
Proceeds from exercise of stock options 106 477 248
Net cash used in financing activities (2,005) (1,461) (2,349)
NET INCREASE (DECREASE) IN CASH
AND CASH EQUIVALENTS 392 (1,030) (965)
CASH AND CASH EQUIVALENTS,
BEGINNING OF YEAR 170 1,200 2,165
CASH AND CASH EQUIVALENTS,
END OF YEAR $ 562 $ 170 $ 1,200
74
14.QUARTERLY FINANCIAL DATA (UNAUDITED)
Summarized quarterly financial data follows:
(In thousands, except per-share amounts)
Three Months Ended
March 31 June 30 September 30 December 31
1993
Net interest income $8,439 $8,791 $9,053 $9,608
Investment securities gains, net 574 1,705 1,411 31
Provision for credit losses 420 375 450 475
Net earnings 2,171 2,316 2,490 2,545
Earnings per common share 0.29 0.31 0.33 0.34
1992
Net interest income $7,613 $7,825 $8,129 $8,453
Investment securities gains, net 69 - - 193
Provision for credit losses 547 300 225 700
Net earnings 2,079 2,107 2,288 2,541
Earnings per common share 0.28 0.29 0.31 0.35
75
15.FAIR VALUE INFORMATION
The following disclosure of the estimated fair value of financial
instruments is made in accordance with the requirements of SFAS No. 107,
"Disclosures about Fair Value of Financial Instruments." The estimated
fair value amounts have been determined by the Company using available
market information and appropriate valuation methodologies. However,
considerable judgment is required to develop the estimates of fair value.
Accordingly, the estimates presented below are not necessarily indicative
of the amounts the Company could have realized in a current market exchange
as of December 31, 1993 and 1992. The use of different market assumptions
and/or estimation methodologies may have a material effect on the estimated
fair value amounts.
December 31, 1993
Carrying Estimated
Amount Fair Value
Assets
Cash and due from banks $ 45,852,849 $ 45,852,849
Federal funds sold 15,000,000 15,000,000
Investment securities held for investment 9,153,916 9,506,000
Investment securities held for sale 140,364,947 141,378,000
Loans and lease finance receivables, net 442,083,848 447,680,000
Liabilities
Deposits:
Noninterest-bearing 221,552,597 221,552,597
Interest-bearing 374,403,704 375,948,000
December 31, 1992
Carrying Estimated
Amount Fair Value
Assets
Cash and due from banks $ 58,939,035 $ 58,939,035
Federal funds sold 12,290,000 12,290,000
Investment securities held for investment 103,965,120 107,945,000
Investment securities held for sale 17,088,577 17,462,000
Loans and lease finance receivables, net 374,661,538 379,940,000
Liabilities
Deposits:
Noninterest-bearing 157,428,049 157,428,049
Interest-bearing 369,495,372 369,840,000
76
The methods and assumptions used to estimate the fair value of each
class of financial instruments for which it is practicable to estimate that
value are explained below:
For federal funds sold and cash and due from banks, the carrying
amount is considered to be a reasonable estimate of fair value. For
investment securities, fair values are based on quoted market prices,
dealer quotes and prices obtained from an independent pricing service (see
also Notes 1 and 2).
The carrying amount of loans and lease financing receivables is their
contractual amounts outstanding reduced by deferred net loan origination
fees and the allocable portion of the allowance for credit losses (see also
Notes 1 and 3). Variable rate loans are composed primarily of loans whose
interest rates float with changes in the prime interest rate. The carrying
amount of variable rate loans (other than such loans in nonaccrual status)
is considered to be their estimated fair value.
The fair value of fixed rate loans (other than such loans in
nonaccrual status) was estimated by discounting the remaining contractual
cash flows using the estimated current rate at which similar loans would be
made to borrowers with similar credit risk characteristics and for the same
remaining maturities, reduced by deferred net loan origination fees and the
allocable portion of the allowance for credit losses.
Accordingly, in determining the estimated current rate for discounting
purposes, no adjustment has been made for any change in borrowers' credit
risks since the origination of such loans. Rather, the allocable portion
of the allowance for credit losses is considered to provide for such
changes in estimating fair value.
The fair value of loans on nonaccrual status (see Note 3) has not been
specifically estimated because it is not practicable to reasonably assess
the credit risk adjustment that would be applied in the market place for
such loans. As such, the estimated fair value of total loans at December
31, 1993 and 1992 includes the carrying amount of nonaccrual loans at each
respective date.
The amounts payable to depositors for demand, savings, and money
market accounts are considered to be stated at fair value. The fair value
of fixed-maturity certificates of deposit is estimated using the rates
currently offered for deposits of similar remaining maturities.
The fair value estimates presented herein are based on pertinent
information available to management as of December 31, 1993 and 1992.
Although management is not aware of any factors that would significantly
affect the estimated fair value amounts, such amounts have not been
comprehensively revalued for purposes of these financial statements since
that date, and, therefore, current estimates of fair value may differ
significantly from the amounts presented above.
16.ACQUISITION OF BRANCH AND PURCHASE OF ASSETS AND LIABILITIES
77
On March 8, 1993, the Company purchased Fontana First National Bank,
assuming approximately $23.7 million in deposits and acquiring
approximately $18.3 million in loans. Fontana First National Bank was
purchased by the Company for $5.0 million, which resulted in the recording
of $1.9 million in goodwill. The assets and liabilities were contributed
to the Bank by the Company.
On October 21, 1993, the Bank assumed the deposits and purchased
certain assets of the failed Mid City Bank, N.A. from the Federal Deposit
Insurance Corporation (the "FDIC"). The acquisition was structured under
a written agreement between the FDIC and the Bank that allowed the Bank
certain rights in regard to repricing deposits and purchasing additional
assets, as well as providing the Bank with indemnification from prior
activities of the failed bank. The Bank assumed approximately $79.3
million in deposits and purchased $4.6 million in investments and $20.8
million in loans.
17.SUBSEQUENT EVENT
In January 1994, the greater Los Angeles area was affected by a major
earthquake and series of aftershocks which were centered in the San
Fernando Valley. The Company is not located in the San Fernando Valley,
nor is the San Fernando Valley part of the Company's service area.
However, it is not yet possible to assess the effect of the earthquake on
the Company's borrowers' primary or secondary repayment sources, or its
overall effect on the local economy in general. The Company's facilities
and other real estate owned suffered no significant damage, and management
is not aware of any effects from the earthquake which would materially
impact its financial condition.
78
INDEPENDENT AUDITORS' REPORT
To the Board of Directors and
Stockholders of CVB Financial Corp.
Ontario, California
We have audited the accompanying consolidated balance sheets of CVB
Financial Corp. and subsidiaries as of December 31, 1993 and 1992, and the
related consolidated statements of earnings, stockholders' equity, and
cash flows for each of the three years in the period ended December 31,
1993. These financial statements are the responsibility of CVB Financial
Corp.'s management. Our responsibility is to express an opinion on these
financial statements based on our audits.
We have conducted our audits in accordance with generally accepted
auditing standards. Those standards require that we plan and perform the
audit to obtain reasonable assurance about whether the consolidated
financial statements are free of material misstatement. An audit 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, such consolidated financial statements present fairly,
in all material respects, the financial position of CVB Financial Corp. and
subsidiaries as of December 31, 1993 and 1992, and the results of their
operations and their cash flows for each of the three years in the period
ended December 31, 1993, in conformity with generally accepted accounting
principles.
/s/ Deloitte & Touche
Delloite & Touche
Los Angeles, California
January 27, 1994
79
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON
ACCOUNTING AND FINANCIAL DISCLOSURE
None
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
Except as hereinafter noted, the information concerning directors and
executive officers of the Company is incorporated by reference from the
section entitled "DIRECTORS AND EXECUTIVE OFFICERS - Election of Directors"
and "COMPLIANCE WITH SECTION 16(A) OF THE SECURITIES EXCHANGE ACT OF 1934"
of the Company's definitive Proxy Statement to be filed pursuant to
Regulation 14A within 120 days after the end of the last fiscal year. For
information concerning executive officers of the Company, see "Item 4(A).
EXECUTIVE OFFICERS OF THE REGISTRANT" above.
ITEM 11. EXECUTIVE COMPENSATION
Information concerning management remuneration and transactions is
incorporated by reference from the section entitled "DIRECTORS AND
EXECUTIVE OFFICERS -Compensation of Executive Officers and Directors -
Executive Compensation, - Employment Agreements and Termination of
Employment Arrangements, - Stock Options, - Option Exercises and Holdings
and - Compensation Committee Interlocks and Insider Participation" of the
Company's definitive Proxy Statement to be filed pursuant to Regulation
14A within 120 days after the end of the last fiscal year.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
Information concerning security ownership of certain beneficial owners
and management is incorporated by reference from the sections entitled
"INTRODUCTION -Principal Shareholders" and "DIRECTORS AND EXECUTIVE
OFFICERS - Election of Directors" of the Company's definitive Proxy
Statement to be filed pursuant to Regulation 14A within 120 days after the
end of the last fiscal year.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
Information concerning certain relationships and related transactions
with management and others is incorporated by reference from the section
entitled "DIRECTORS AND EXECUTIVE OFFICERS--Certain Transactions" of the
Company's definitive Proxy Statement to be filed pursuant to Regulation
14A within 120 days after the end of the last fiscal year.
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS
ON FORM 8-K
80
Financial Statements
Reference is made to the index to Financial Statements at
page 50 for a list of financial statements filed as part of this
Report.
Exhibits
See Index to Exhibits at Page 85 of this Form 10-K.
Executive Compensation Plans and Arrangements
The following compensation plans and arrangements are filed as
exhibits to this Form 10-K: 1981 Stock Option Plan, Exhibit
10.1; Agreement by and among D. Linn Wiley, CVB Financial Corp.
and Chino Valley Bank dated August 8, 1991, Exhibit 10.2; Chino
Valley Bank Profit Sharing Plan, Exhibit 10.3; 1991 Stock Option
Plan, Exhibit 10.17; Severance Agreement between John Cavallucci,
Chino Valley Bank and CVB Financial Corp. dated March 26, 1991
and Waiver Agreement dated October 4, 1991, Exhibit 10.18; Key
Employee Stock Grant Plan, Exhibit 10.19. See Index to Exhibits
at Page 85 to this Form 10-K.
Reports on Form 8-K
The Company filed a Report on Form 8-K, on November 4, 1993
reporting under Item 5.
Undertaking for Registration Statement on Form S-8
For the purpose of complying with the amendments to the rules
governing Form S-8 (effective July 13, 1990) under the Securities
Act of 1933, the undersigned registrant hereby undertakes as
follows, which undertaking shall be incorporated by reference
into registrant's Registration Statement on Form S-8 No. 2-76121
(filed February 18, 1982):
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 Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Securities Act of 1933 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
81
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.
82
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the
Securities Exchange Act of 1934, the registrant has duly caused
this report to be signed on its behalf by the undersigned,
thereunto duly authorized, on the 16th day of March, 1994.
CVB FINANCIAL CORP.
(Registrant)
By /s/ D. Linn Wiley
D. LINN WILEY
President and
Chief Executive Officer
Pursuant to the requirements of the Securities Exchange Act of
1934, this report has been signed below by the following persons
on behalf of the registrant in the capacities and on the dates
indicated.
Signature Title Date
/s/ George A. Borba Chairman of the Board March 28, 1994
George A. Borba
/s/ John A. Borba Director March 28, 1994
John A. Borba
/s/ Ronald O. Kruse Director March 28, 1994
Ronald O. Kruse
/s/ John J. LoPorto Director March 28, 1994
John J. LoPorto
/s/ Charles M. Magistro Director March 28, 1994
Charles M. Magistro
/s/ John Vander Schaaf Director March 28, 1994
John Vander Schaaf
/s/ Robert J. Schurheck Chief Financial Officer March 28, 1994
Robert J. Schurheck (Principal Financial
and Accounting Officer)
/s/ D. Linn Wiley Director, President and March 28, 1994
D. Linn Wiley Chief Executive Officer
(Principal Executive Officer)
83
INDEX TO EXHIBITS
Exhibit No. Page
3.1 Articles of Company, as amended.(1) *
3.2 Bylaws of Company, as amended.(2) *
10.1 1981 Stock Option Plan, as amended.(1) *
10.2 Agreement by and among D. Linn Wiley, CVB
Financial Corp. and Chino Valley Bank dated
August 8, 1991.(2) *
10.3 Chino Valley Bank Profit Sharing Plan, as amended.(3) *
10.4 Definitive Agreement by and between CVB Financial
Corp. and Huntington Bank dated January 6, 1987.(4) *
10.5 Transam One Shopping Center Lease dated May 20, 1986,
by and between Transam One and Chino Valley Bank for
the East Chino Office.(4) *
10.6 Sublease dated November 1, 1986, by and between
Eldorado Bank and Chino Valley Bank for the East
Highland Office.(4) *
10.7 Lease Assignment, Acceptance and Assumption and
Consent dated December 23, 1986, executed by the
FDIC, Receiver of Independent National Bank, Covina,
California, as Assignor, Chino Valley Bank, as
Assignee, and INB Bancorp, as Landlord under that
certain Ground Lease dated September 30, 1983 by and
between INB Bancorp and Independent National Bank for
the Covina Office.(4) *
10.8 Lease Assignment dated May 15, 1987 and Consent of
Lessor dated April 21, 1987 executed by Huntington
Bank, as Assignor, Chino Valley Bank as Assignee and
Gerald G. Myers and Lynn H. Myers as Lessors under
that certain lease dated March 1, 1979 between
Lessors and Huntington Bank for the Arcadia Office.(5) *
10.9 Lease Assignment dated May 15, 1987 and Consent of
Lessor dated March 18, 1987 executed by Huntington
Bank, as Assignor, Chino Valley Bank as Assignee and
George R. Meeker as Lessor under that certain
Memorandum of Lease dated May 1, 1982 between Lessor
and Huntington Bank for the South Arcadia Office.(5) *
10.10 Lease Assignment dated May 15, 1987 and Consent of
84
Lessor dated March 17, 1987 executed by Huntington
Bank, as Assignor, Chino Valley Bank as Assignee
and William R. Hayden and Marie Virginia Hayden as
Lessor under that Certain Lease and Sublease, dated
March 1, 1983, as amended, between Lessors and
Huntington Bank for the San Gabriel Office.(5) *
10.11 Lease Assignment dated May 15, 1987 executed by
Huntington Bank as Assignor and Chino Valley
Bank as Assignee under that certain Shopping
Center Lease dated June 1, 1982, between Anita
Associates, a limited partnership and Huntington
Bank for the Santa Anita ATM Branch.(5) *
10.12 Office Building Lease between Havenpointe Partners
Ltd. and CVB Financial Corp. dated April 14, 1987
for the Ontario Airport Office.(6) *
10.13 Form of Indemnification Agreement.(7) *
10.14 Office Building Lease between Chicago Financial
Association I, a California Limited Partnership and
CVB Financial Corp. dated October 17, 1989, as
amended, for the Riverside Branch.(1) *
10.15 Office Building Lease between Lobel Financial
Corporation and Chino Valley Bank dated June 12,
1990, for the Premier Results data processing center.(3) *
10.16 Office Space Lease between Rancon Realty Fund IV
and Chino Valley Bank dated September 6, 1990, for
the Tri-City Business Center Branch.(3) *
10.17 1991 Stock Option Plan.(6) *
10.18 Severance Agreement between John Cavallucci, Chino Valley
Bank and CVB Financial Corp. dated March 26, 1991 and
Waiver Agreement dated October 4, 1991.(2) *
10.19 Key Employee Stock Grant Plan.(8) *
10.20 Lease by and between Allan G. Millew and William F.
Kragness and Chino Valley Bank dated March 5, 1993
for the Fontana Office. (9) *
10.21 Office Lease by and between Mulberry Properties
and Chino Valley Bank dated October 12, 1992. (9) *
10.22 First Amended and Restated Agreement and Plan of
Reorganization by and between CVB Financial Corp.,
Chino Valley Bank and Fontana First National Bank,
dated October 8, 1992 88
85
10.23 Purchase and Assumption Agreement among FDIC
receiver of Mid City Bank, National Association, FDIC
and Chino Valley Bank, dated October 21, 1993 (10) *
10.24 Agreement and Plan of Reorganization by and between
CVB Financial Corp., Chino Valley Bank and Western
Industrial National Bank, dated November 16, 1993 181
10.25 Lease by and between Bank of America and Chino Valley
Bank dated October 15, 1993, for the West Arcadia Office 230
10.26 Lease be and between RCI Loring and CVB Financial Corp
dated March 11, 1993, for the Riverside Office. 250
22 Subsidiaries of Company. (9) *
23 Consent of Independent Certified Public Accountants. 283
86
__________________________
*Not applicable.
(1) Filed as Exhibits 3.1, 10.1 and 10.14 to Registrant's Annual
Report on Form 10-K for the fiscal year ended
December 31, 1989, Commission file number 0-10140, which
are incorporated herein by this reference.
(2) Filed as Exhibits 3.2, 10.2 and 10.18 to Registrant's Annual
Report on Form 10-K for the fiscal year ended December 31,
1991, Commission file number 0-10140, which are
incorporated herein by this reference.
(3) Filed as Exhibits 10.3, 10.15 and 10.16 to Registrant's Annual
Report on Form 10-K for the fiscal year ended December 31,
1990, Commission file number 0-10140, which are
incorporated herein by this reference.
(4) Filed as Exhibits 10.4, 10.5, 10.6 and 10.7 to Registrant's
Annual Report on Form 10-K for the fiscal year ended
December 31, 1986, Commission file number 0-10140, which
are incorporated herein by this reference.
(5) Filed as Exhibits 10.8, 10.9, 10.10, 10.11 and 10.12 to
Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1987, Commission file number 0-
10140, which are incorporated herein by this reference.
(6) Filed as Exhibit 4.1 to Registrant's Registration Statement on
Form S-8 (33-41318) filed with the Commission on June 21,
1991, which is incorporated herein by this reference.
(7) Filed as Exhibit 10.13 to Registrant's Annual Report on
Form 10-K for the fiscal year ended December 31, 1988,
Commission file number 0-10140, which is incorporated
herein by this reference.
(8) Filed as Exhibit 4.1 to Registrant's Registration Statement on
Form S-8 (33-50442) filed with the Commission on August 1,
1992, which is incorporated herein by this reference.
(9) Filed as Exhibit 10.20, 10.21 and 22 to Registrant's Annual
Report on Form 10-K for the fiscal year ended December 31,
1992, Commission file number 0-10140, which are incorporated
herein by this reference.
(10) Filed as Exhibit 99 to the Registrant's Current Report on
Form 8-K filed with the Commission on November 4, 1993,
which is incorporated herein by this reference.
87
FIRST AMENDED
AND
RESTATED
AGREEMENT
AND
PLAN OF REORGANIZATION
By and Between
CVB FINANCIAL CORP.,
CHINO VALLEY BANK
and
FONTANA FIRST NATIONAL BANK
October 28, 1992
88
FIRST AMENDED AND RESTATED
AGREEMENT AND PLAN OF REORGANIZATION
This First Amended and Restated Agreement and Plan of
Reorganization ("Agreement") is made and entered into as of October 28,
1992 by and between CVB Financial Corp., a California corporation ("CVB"),
Chino Valley Bank, a California banking corporation ("Chino Valley"), and
Fontana First National Bank, a national banking association ("Fontana").
R E C I T A L S
CVB, Chino Valley and Fontana entered into an Agreement and Plan
of Reorganization dated as of May 13, 1992 (the "Original Agreement"),
providing for the conversion of Fontana into a state banking corporation
(the "Converted Bank") and the merger of Chino Valley with and into the
Converted Bank.
The parties now desire to amend certain of the terms and
provisions of the Original Agreement and, as so amended, to restate the
Original Agreement in order to provide for the acquisition by CVB of all of
the outstanding shares of Fontana Stock (as defined below) pursuant to the
Consolidation (as defined below) and Merger (as defined below), subject to
the terms and conditions specified herein, as follows:
(a) CVB will establish New Bank (as defined below) as a
wholly-owned subsidiary;
(b) Fontana and New Bank will enter into an Agreement to
Consolidate (as defined below) providing for the consolidation of New Bank
and Fontana under the charter of Fontana; and
(c) Immediately thereafter, the Consolidated Association
(as defined below) will merge with and into Chino Valley pursuant to an
Agreement of Merger (as defined below).
In consideration of the mutual covenants, agreements,
representations and warranties contained herein, the parties hereto agree
as follows:
NOTE: PARAGRAPH DEFINITION REDEFINED AS FOLLOWS:
LEVELS: 1 2 3 4 5 6
# STYLE 0 5 3 1 2 4
PUNCTUATION 0 0 3 3 3 3
EXAMPLE I 1.1 (a) (i) (A) (1)
TYPE IN PARAGRAPH LEVELS ARTICLE 1
DEFINITIONS
89
1.1 Definitions. Capitalized terms used in this Agreement
shall have the meanings set forth below unless the context otherwise
requires:
"Adjusted Stockholders' Equity" shall mean the stockholders'
equity of Fontana as of the Determination Date (as defined below),
determined in accordance with generally accepted accounting principles on a
basis consistent with those utilized in the preparation of the Fontana
Financial Statements (as defined below) for the year ended December 31,
1991 (except for changes, if any, required by generally accepted accounting
principles), with all accruals and reserves necessary to fairly present the
stockholders' equity of Fontana as of the Determination Date, less the sum
of (A) amounts not previously expensed or accrued for payment (i) to
holders of Fontana Options (as defined below) for the cancellation of
Fontana Options in accordance with Section 2.1(c), (ii) in respect of the
cancellation and termination of the Fontana Employment Agreements (as
defined below), (iii) in respect of expenses and costs relating to the
transactions contemplated by this Agreement, (iv) in respect of the
termination of the Fontana Deferred Compensation Plan (as defined below)
and all benefits payable thereunder and (v) in respect of the termination
of the Fontana Banking Services Agreement (as defined below) and Fontana
Computer Accounting Agreement (as defined below), and (B) any increase in
stockholders' equity as a result of the exercise of Fontana Options (as
defined below) between the date of the Original Agreement and the
Determination Date, plus amounts previously expensed or accrued for the
payment of consideration to former employees of Fontana pursuant to Section
7.2 and any other adjustments mutually agreed to by CVB and Fontana.
"Affiliate" means any Person (as defined below) that directly, or
through one or more intermediaries controls, or is controlled by, or is
under common control with, the Person specified.
"Agreement to Consolidate" shall mean the Agreement to
Consolidate to be entered into by and between New Bank and Fontana
substantially in the form of Exhibit A-1 hereto, but subject to any changes
that may be necessary to conform to any requirements of any regulatory
agency having authority over the Consolidation (as defined below).
"Aggregate Purchase Price" shall have the meaning given such term
in Section 2.4.
"Aggregate Purchase Price Certificate" shall mean a certificate,
executed by the Chief Executive Officer and Chief Financial Officer of
Fontana and dated as of the Determination Date (as defined below), setting
forth the Aggregate Purchase Price and Per Share Price (as defined below),
including the Adjusted Stockholders' Equity, the Deferred Loan Fees (as
defined below) and the aggregate amount of cash, if any, received upon the
exercise of Fontana Options (as defined below) between the date of the
Original Agreement and the Determination Date.
90
"Agreement of Merger" shall mean the Agreement of Merger to be
entered into by and between Chino Valley and the Consolidated Association
(as defined below) substantially in the form of Exhibit A-2 hereto, but
subject to any changes that may be necessary to conform to any requirements
of any regulatory agency having authority over the Merger.
"Alternative Transaction" shall have the meaning given such term
in subsection (a) of Section 6.5.
"Business Day" shall mean any day other than a Saturday, Sunday
or day on which commercial banks in California are authorized or required
to be closed.
"Charter Documents" shall mean, with respect to any business
organization, any certificate or articles of incorporation or association,
any bylaws, any partnership agreement and any other similar documents that
regulate the basic organization of the business organization and its
internal relations.
"Chino Valley" shall mean Chino Valley Bank, a California banking
corporation.
"Chino Valley Stock" shall mean the common stock, no par value,
of Chino Valley.
"Closing" shall mean the consummation of the transactions
contemplated by this Agreement on the Closing Date (as defined below) at
the offices of Manatt, Phelps, Phillips & Kantor, 11355 West Olympic
Boulevard, Los Angeles, California, or at such other place as the Parties
(as defined below) may agree upon.
"Closing Date" shall mean, unless the Parties (as defined below)
agree on another date, the first Friday following the receipt of the
approvals and consents and expiration of the waiting periods specified in
subsection (c) of Section 8.1 and subsection (b) of Section 8.2.
"Code" shall mean the United States Internal Revenue Code of
1986, as amended, and all regulations thereunder.
"Comptroller" shall mean the Comptroller of the Currency.
"Confidential Information" shall mean all information heretofore
or hereafter provided by Fontana to CVB and Chino Valley, which is
information related to the business, financial position or operations of
Fontana (such information to include, by way of example only and not of
limitation, client lists, pricing information, company manuals, internal
memoranda, strategic plans, budgets, forecasts, projections, computer
models and marketing plans). Notwithstanding the foregoing, "Confidential
Information" shall not include any information that (i) at the time of
disclosure or thereafter is generally available to and known by the public
91
(other than as a result of a disclosure directly or indirectly by CVB and
Chino Valley or any of its officers, directors, employees or other
representatives), (ii) was available to CVB and Chino Valley on a
nonconfidential basis from a source other than Fontana, provided that such
source learned the information independently and is not and was not bound
by a confidentiality agreement with respect to the information, or
(iii) has been independently acquired or developed by CVB and Chino Valley
without violating any obligations under this Agreement.
"Consents" shall mean every consent, approval, absence of
disapproval, waiver or authorization from, or notice to, or registration or
filing with, any Person (as defined below).
"Consolidation" shall mean the consolidation of New Bank and
Fontana.
"Consolidated Association" shall mean the national banking
association surviving the Consolidation.
"Consolidated Association Stock" shall mean the common stock,
$5.00 par value, of the Consolidated Association.
"CRA" shall mean the Community Reinvestment Act.
"CVB" shall mean CVB Financial Corp., a California corporation.
"CVB Supplied Information" shall have the meaning given such term
in Section 5.4.
"Deferred Loan Fees" shall mean the book amount of the deferred
loan fees of Fontana (as defined below) as of the Determination Date (as
defined below).
"Deposit" shall mean any deposit as defined in Section 3(l) of
the Federal Deposit Insurance Act, as amended to the date of this Agreement
(12 U.S.C. Section 1813(l)).
"Determination Date" shall mean a day which is 10 Business Days
prior to the Effective Time of the Consolidation (as defined below), unless
the Parties mutually agree to another day.
"DPC Property" shall mean voting securities, other personal
property and real property acquired by foreclosure or otherwise, in the
ordinary course of collecting a debt previously contracted in good faith,
retained with the object of sale for a period not longer than one year, or
any applicable statutory holding period, and recorded in the holder's
business records as such.
"Effective Time of the Consolidation" shall have the meaning
given such term in Section 2.1.
92
"Effective Time of the Merger" shall mean the date and time of
the filing of the Agreement of Merger bearing the certification of the
Secretary of State (as defined below) with the Superintendent.
"Encumbrance" shall mean any option, pledge, security interest,
lien, charge, encumbrance or restriction (whether on voting, disposition or
otherwise), whether imposed by agreement, understanding, law or otherwise.
"Environmental Law" shall mean any federal, state, provincial or
local statute, law, ordinance, rule, regulation, order, consent, decree,
judicial or administrative decision or directive of the United States or
other jurisdiction whether now existing or as hereinafter promulgated,
issued or enacted relating to: (A) pollution or protection of the
environment, including natural resources; (B) exposure of persons,
including employees, to Hazardous Substances (as defined below) or other
products, materials or chemicals; (C) protection of the public health or
welfare from the effects of products, by-products, wastes, emissions,
discharges or releases of chemical or other substances from industrial or
commercial activities; or (D) regulation of the manufacture, use or
introduction into commerce of substances, including, without limitation,
their manufacture, formulation, packaging, labeling, distribution,
transportation, handling, storage and disposal. For the purposes of this
definition the term "Environmental Law" shall include, without limiting the
foregoing, the following statutes, as amended from time to time: (1) the
Clean Air Act, as amended, 42 U.S.C. S7401 et seq.; (2) the Federal Water
Pollution Control Act, as amended, 33 U.S.C. S1251 et seq.; (3) the
Resource Conservation and Recovery Act of 1976, as amended, 42 U.S.C. S6901
et seq., (4) the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended (including the Superfund Amendments and
Reauthorization Act of 1986), 42 U.S.C S2601 et seq.; (5) the Toxic
Substances Control Act, as amended, 15 U.S.C. S2601 et seq.; (6) the
Occupational Safety and Health Act, as amended, 29 U.S.C. S651; (7) the
Emergency Planning and Community Right-To-Know Act of 1986, 42 U.S.C. S1101
et seq.; (8) the Mine Safety and Health Act of 1977, as amended, 30 U.S.C.
S801 et seq.; (9) the Safe Drinking Water Act, 42 U.S.C. S300f et seq.; and
(10) all comparable state and local laws, laws of other jurisdictions or
orders and regulations including, but not limited to, the Carpenter-
Presley-Tanner Hazardous Substance Account Act, Cal. Health & Safety Code
S25300 et seq.
"Equity Securities" shall mean the capital stock of Fontana or
any options, rights, warrants or other rights to subscribe for or purchase,
or any plans, contracts or commitments that are exercisable in, such
capital stock or that provide for the issuance of, or grant the right to
acquire, or are convertible into, or exchangeable for, such capital stock.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended, and all regulations thereunder.
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"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and all rules and regulations thereunder.
"Exchange Agent" shall mean the financial institution appointed
by CVB to effect the exchange contemplated by Section 2.5.
"Executive Officer" shall mean a natural person who participates
or has the authority to participate (other than in the capacity of a
director) in major policy making functions, whether or not such person has
a title or is serving with salary or other compensation.
"FDIC" shall mean the Federal Deposit Insurance Corporation.
"Fontana" shall mean Fontana First National Bank, a national
banking association.
"Fontana Banking Services Agreement" shall mean the Banking
Services Agreement dated as of February 21, 1990 between Fontana and
Community Automation and any other agreement entered into between Fontana
and Community Automation.
"Fontana Computer Accounting Agreement" shall mean the City
National Bank Independent Financial Institution Computer Accounting
Agreement entered into by and between City National Bank and Fontana.
"Fontana Deferred Compensation Plan" shall mean the Deferred
Compensation Plan maintained by Fontana.
"Fontana Employment Agreements" shall mean any employment
agreement, severance agreement, "golden parachute" agreement or any other
agreement which provides for payments to employees of Fontana upon
termination of employment, including termination after a change in control.
"Fontana Filings" shall have the meaning given such term in
Section 4.9.
"Fontana Lease" shall mean the Commercial Lease Agreement dated
October 3, 1989, between Fontana, on the one hand, and Allan J. Milew and
William F. Kragness, on the other hand.
"Fontana Options" shall mean options to purchase Fontana Stock
(as defined below) pursuant to the Fontana Stock Option Plan (as defined
below).
"Fontana Stock" shall mean the common stock, $5.00 par value, of
Fontana.
"Fontana Stock Option Plan" shall mean the 1986 Amended and
Restated Stock Option Plan of Fontana.
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"Fontana Supplied Information" shall have the meaning given such
term in Section 4.27.
"Fontana Financial Statements" shall have the meaning given such
term in subsection (a) of Section 4.4.
"Governmental Entity" shall mean any court or tribunal in any
jurisdiction or any United States federal, state, municipal, domestic,
foreign or other administrative agency, department, commission, board,
bureau or other governmental authority or instrumentality.
"Hazardous Substances" shall mean (i) substances that are defined
or listed in, or otherwise classified pursuant to, or the use or disposal
of which are regulated by, any Environmental Law as "hazardous substances,"
"hazardous materials," "hazardous wastes," toxic substances," or any other
formulation intended to define, list, or classify substances by reason of
deleterious properties such as ignitability, corrosivity, reactivity, car-
cinogenicity, reproductive toxicity, or "EP toxicity;" (ii) oil, petroleum
or petroleum derived from substances and drilling fluids, produced waters,
and other wastes associated with the exploration, development, or
production of crude oil, natural gas, or geothermal resources; (iii) any
flammable substances or explosives, any radioactive materials, any
hazardous wastes or substances, any toxic wastes or substances or any other
materials or pollutants which pose a hazard to any property or to Persons
on or about such property; and (iv) asbestos in any form or electrical
equipment which contains any oil or dielectric fluid containing levels of
polychlorinated biphenyls in excess of 50 parts per million.
"Material Contract" shall have the meaning given such term in
Section 4.11.
"Merger" shall mean the merger of the Consolidated Association
with and into Chino Valley.
"New Bank" shall mean the interim California banking corporation
established by CVB solely for the purpose of effecting the Consolidation.
"New Bank Stock" shall mean the common stock, no par value, of
New Bank.
"Noncompetition Agreement" shall mean an agreement, substantially
in the form of Exhibit B-1 or B-2 hereto, pursuant to which each of the
directors and Executive Officers of Fontana as of the date of the Original
Agreement shall covenant not to compete with the Surviving Bank (as defined
below).
"Operating Loss" shall have the meaning given such term in
Section 4.24.
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"Party" shall mean any of CVB, Chino Valley or Fontana and
"Parties" shall mean all of CVB, Chino Valley and Fontana.
"Per Share Price" shall mean the quotient obtained by dividing
(x) the Aggregate Purchase Price by (y) the total number of shares of
Fontana Stock outstanding immediately prior to the Effective Time of the
Consolidation (including Perfected Dissenting Shares).
"Perfected Dissenting Shares" shall mean shares of Fontana Stock
the holders of which have satisfied the requirements of Section 215 (as
defined below) and have not effectively withdrawn or lost their dissenters'
rights under Section 215.
"Permit" shall mean any United States federal, foreign, state,
local or other license, permit, franchise, certificate of authority, order
or approval necessary or appropriate under any applicable Rule (as defined
below).
"Person" shall mean any natural person, corporation, trust,
association, unincorporated body, partnership, joint venture, Governmental
Entity, statutorily or regulatory sanctioned unit or any other person or
organization.
"Proxy Statement" shall have the meaning given such term in
Section 4.27.
"Real Property" shall have the meaning given such term in
subsection (a) of Section 4.12.
"Representatives" shall have the meaning given such term in
subsection (a) of Section 6.1.
"Rule" shall mean any statute or law or any judgment, decree,
injunction, order, regulation or rule of any Governmental Entity,
including, without limitation, those relating to disclosure, usury, equal
credit opportunity, equal employment, fair credit reporting and
anticompetitive activities.
"Secretary of State" shall mean the Secretary of State of the
State of California.
"Section 215" shall mean Section 215 of Title 12 of the United
States Code.
"Securities Act" shall mean the Securities Act of 1933, as
amended, and all rules and regulations thereunder.
"Shareholder's Agreement" shall mean an agreement, substantially
in the form of Exhibit C hereto, pursuant to which each signatory shall
agree to vote or cause to be voted all shares of Fontana Stock with respect
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to which such Person has voting power on the date hereof or hereafter
acquires to approve the Agreement and the transactions contemplated hereby
and all requisite matters related thereto.
"Superintendent" shall mean the Superintendent of Banks of the
State of California.
"Surviving Bank" shall mean the bank surviving the Merger.
"Surviving Bank Stock" shall mean the common stock, no par value,
of the Surviving Bank.
"Tax Filings" shall have the meaning given such term in Section
4.10.
"Third Party Consent" shall have the meaning given such term in
subsection (b) of Section 7.1.
"To the knowledge" and "to the best knowledge" shall have the
meanings given such terms in Section 11.12.
ARTICLE 2
THE CONSOLIDATION AND RELATED MATTERS
2.1 The Consolidation. The Parties hereto agree that each
will use their best efforts to perfect the organization of New Bank in
accordance with the California Financial Code and the regulations
promulgated thereunder prior to the Closing Date. The directors and
officers of New Bank, and the Articles of Incorporation and Bylaws of New
Bank, shall be determined by CVB. Subject to the provisions of this
Agreement, the Parties agree to request that the approval of the
Consolidation to be issued by the Comptroller on or prior to the Closing
Date shall provide that the Consolidation shall become effective (the
"Effective Time of the Consolidation") as of the Closing Date and
immediately prior to the Effective Time of the Merger. At the Effective
Time of the Consolidation, the following transactions will occur simultane-
ously:
(a) Consolidation of Fontana and New Bank. Fontana and
New Bank shall be consolidated under the charter of Fontana.
(b) Effect on Fontana Stock. Subject to Section 2.3,
each share of Fontana Stock issued and outstanding immediately prior to the
Effective Time of the Consolidation shall, on and at the Effective Time of
the Consolidation, pursuant to the Agreement to Consolidate and without any
further action on the part of Fontana or the holders of Fontana Stock, be
automatically cancelled and cease to be an issued and outstanding share of
Fontana Stock and be converted into the right to receive the Per Share
Price.
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(c) Effect on Fontana Options. Prior to the Effective
Time of the Consolidation, Fontana shall make arrangements satisfactory to
CVB for the surrender for cancellation of all Fontana Options outstanding
immediately prior to the Effective Time of the Consolidation, such
cancellation to become effective at the Effective Time of the
Consolidation.
(d) Effect on New Bank Stock. Each share of New Bank
Stock issued and outstanding immediately prior to the Effective Time of the
Consolidation shall, on and at the Effective Time of the Consolidation,
pursuant to the Agreement to Consolidate and without any further action on
the part of Fontana or the holder of the New Bank Stock be converted into,
and shall for all purposes be deemed to represent, one share of
Consolidated Association Stock. Because the Consolidation is subject to,
and will occur only if it is immediately followed by, the Merger and the
cancellation of the Consolidated Association Stock, no certificates
representing shares of the Consolidated Association Stock will be issued.
2.2 Effect of the Consolidation. At the Effective Time of
the Consolidation, the corporate existence of New Bank and Fontana shall be
merged into and continued in the Consolidated Association and the
Consolidated Association shall be deemed the same corporation as each bank
participating in the Consolidation. All rights, franchises, and interests
of New Bank and Fontana in and to every type of property (real, personal
and mixed) and chooses in action shall be transferred to and vested in the
Consolidated Association by virtue of the Consolidation without any deed or
other transfer and the Consolidated Association shall hold and enjoy all
rights of property, franchises and interests, in the same manner and to the
same extent as such rights, franchises and interests were held or enjoyed
by any one of the consolidating banks at the Effective Time of the
Consolidation.
2.3 Dissenting Shareholders. Any Perfected Dissenting Shares
shall not be converted into the right to receive the Per Share Price, but
the holders thereof shall be entitled only to such rights as are granted
them by Section 215. Each dissenting shareholder who is entitled to
payment for his shares of Fontana Stock under Section 215 shall receive
such payment in an amount as determined pursuant to Section 215.
2.4 The Aggregate Purchase Price and Per Share Price.
(a) Computation of the Aggregate Purchase Price. The
Aggregate Purchase Price shall be the sum of (i) the product obtained by
multiplying (x) 1.6 times (y) the Adjusted Stockholders' Equity, (ii) the
product obtained by multiplying (x) .6 times (y) the Deferred Loan Fees and
(iii) the aggregate amount of cash, if any, received upon the exercise of
Fontana Options between the date of the Original Agreement and the
Determination Date.
98
(b) Officers' Certificate; Accountant's Review. The
Aggregate Purchase Price and Per Share Price, including the Adjusted
Stockholders' Equity, Deferred Loan Fees and the aggregate amount of cash,
if any, received upon the exercise of Fontana Options between the date of
the Original Agreement and the Determination Date, shall be set forth in
the Aggregate Purchase Price Certificate. The procedures upon which the
calculation of the Aggregate Purchase Price and Per Share Price, including
the Adjusted Stockholders' Equity, Deferred Loan Fees and the aggregate
amount of cash, if any, received upon the exercise of Fontana Options
between the date of the Original Agreement and the Determination Date, are
based shall be reviewed and confirmed by Deloitte & Touche, or such other
independent accountants as CVB may designate.
2.5 Delivery of Cash. Prior to the Effective Time of the
Consolidation, CVB will deliver to the Exchange Agent an amount of cash
equal to the Per Share Price multiplied by the number of shares of Fontana
Stock outstanding immediately prior to the Effective Time of the
Consolidation. Delivery to such holders of the cash to which they are
entitled will subsequently be made by the Exchange Agent against delivery
of share certificates formerly evidencing Fontana Stock (duly executed and
in proper form for transfer) to the Exchange Agent in accordance with this
Section 2.5 and an agreement to be entered into between CVB and the
Exchange Agent.
2.6 Name of Consolidated Association. The name of the
Consolidated Association shall be "Fontana First National Bank."
2.7 Directors and Officers of Consolidated Association. At
the Effective Time of the Consolidation, the directors of New Bank shall be
the directors of the Consolidated Association until their successors have
been chosen and qualified in accordance with the Articles of Association
and Bylaws of the Consolidated Association. The officers of New Bank at
the Effective Time of the Consolidation shall be the officers of the
Consolidated Association until they resign or are replaced or terminated by
the Board of Directors of the Consolidated Association or otherwise in
accordance with the Consolidated Association's Articles of Association or
Bylaws.
2.8 Noncompetition Agreements. Concurrently with the execu-
tion of this Agreement, Fontana shall cause each of its directors to enter
into an agreement substantially in the form of Exhibit B-1 hereto, and
Fontana shall cause each of its Executive Officers to enter into an
agreement substantially in the form of Exhibit B-2 hereto.
2.9 Shareholder's Agreements. Concurrently with the execu-
tion of this Agreement, Fontana shall cause each of its directors to enter
into a Shareholder's Agreement.
ARTICLE 3
THE CLOSING
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3.1 Closing Date. The Closing shall, unless another date or
place is agreed in writing by the Parties hereto, take place at the offices
of Manatt, Phelps, Phillips & Kantor, 11355 West Olympic Boulevard, Los
Angeles, California, on the Closing Date.
3.2 Execution of Agreement to Consolidate. Prior to the
Closing Date, and as soon as practicable after approval of the
Superintendent to organize New Bank, the Agreement to Consolidate (as
amended, if necessary, to conform to any requirements of any regulatory
authority having authority over the Consolidation) shall be executed by
Fontana and New Bank. On the Closing Date, the Consolidation shall become
effective in accordance with the approval granted by the Comptroller.
3.3 Execution of Agreement of Merger. Prior to the Closing
Date, and as soon as practicable after approval of the Superintendent to
organize New Bank, the Agreement of Merger (as amended, if necessary to
conform to any requirements of any regulatory authority having authority
over the Merger, shall be executed by Chino Valley and the Consolidated
Association. On the Closing Date the Agreement of Merger, bearing the
certification of the Secretary of State, together with all requisite
certificates shall be duly filed in the office of the Superintendent in
accordance with the California Corporations Code and the California
Financial Code.
3.4 Documents to be Delivered. At the Closing the Parties
shall deliver, or cause to be delivered, such documents or certificates as
may be necessary, in the reasonable opinion of counsel for any of the
Parties, to effectuate the transactions called for in this Agreement. If,
at any time after the Effective Time of the Merger, the Surviving Bank or
its successors or assigns shall determine that any further conveyance,
assignment or other documents or any further action is necessary or
desirable to further effectuate the transactions set forth herein or
contemplated hereby, the officers and directors of the Parties shall
execute and deliver, or cause to be executed and delivered, all such
documents as may be reasonably required to effectuate such transactions.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF FONTANA
Fontana represents and warrants to CVB and Chino Valley as
follows:
4.1 Organization, Standing and Power. Fontana is a national
banking association, duly organized and existing as an association under
the laws of the United States, and is authorized by the Comptroller to
conduct a general banking business. Fontana is a member of the Federal
Reserve System and its deposits are insured by the FDIC in the manner and
100
to the extent provided by law. Fontana has all requisite corporate power
and authority to own, lease and operate its properties and assets and to
carry on its business as presently conducted. Neither the scope of the
business of Fontana nor the location of any of its properties requires that
it be licensed to do business in any jurisdiction other than the State of
California. Fontana has delivered to CVB and Chino Valley true and correct
copies of its Articles of Association and Bylaws, as amended and in effect
as of the date hereof.
4.2 Capitalization. As of the date of this Agreement, the
authorized capitalization of Fontana consists of 480,000 shares of Fontana
Stock, of which 345,700 shares are issued and outstanding. All of the
outstanding shares of Fontana Stock are validly issued, fully paid and
nonassessable (except as provided for in 12 U.S.C. S55). Except for
Fontana Options covering 33,300 shares of Fontana Stock granted pursuant to
the Fontana Stock Option Plan, there are no outstanding options, warrants,
commitments, agreements or other rights in or with respect to the unissued
shares of Fontana Stock or any other securities convertible into Fontana
Stock. Schedule 4.2 sets forth the name of each holder of a Fontana
Option, the number of shares of Fontana Stock covered by each such Fontana
Option, the exercise price per share and the expiration date of each such
Fontana Option.
4.3 Subsidiaries. Fontana does not own, directly or
indirectly (except as pledged pursuant to loans which are not in default),
any equity position or other voting interest in any corporation,
partnership, joint venture or other entity.
4.4 Financial Statements. Fontana has delivered to CVB and
Chino Valley (a) audited Balance Sheets of Fontana as of December 31, 1991
and 1990, the related Statements of Income, Stockholders' Equity and Cash
Flows for each of the years ended December 31, 1991, 1990 and 1989, the
related notes and related opinions thereon of Vavrinek, Trine, Day & Co.
and (b) an unaudited balance sheet of Fontana as of June 30, 1992, the
related statements of income, stockholders' equity and cash flows for the
six months then ended and the related notes thereto (the "Fontana Financial
Statements"). Fontana has furnished CVB and Chino Valley with true and
correct copies of each management letter or other letter delivered to
Fontana by Vavrinek, Trine, Day & Co. in connection with the Financial
Statements of Fontana or relating to any review of the internal controls of
Fontana by Vavrinek, Trine, Day & Co. since January 1, 1989. The Fontana
Financial Statements (i) present fairly the financial condition of Fontana
as of the respective dates indicated and its results of operations and the
changes in its stockholders' equity and cash flows for the respective
periods indicated; (ii) have been prepared in accordance with generally
accepted accounting principles applied on a consistent basis (except for
changes, if any, required by generally accepted accounting principles and
disclosed therein); (iii) set forth as of the respective dates indicated
adequate reserves for loan losses and other contingencies; and (iv) are
based on the books and records of Fontana.
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4.5 No Material Liabilities. Schedule 4.5 sets forth all
material liabilities of Fontana, including liabilities for Hazardous
Substances or under any Environmental Law, contingent or otherwise, that
are not reflected or reserved against in the Fontana Financial Statements
dated as of December 31, 1991, except for liabilities incurred or accrued
since December 31, 1991 in the ordinary course of business, none of which
has had or may reasonably be expected to have a material adverse effect on
the business, financial condition, results of operations or prospects of
Fontana. Except as set forth in Schedule 4.5, Fontana knows of no basis
for the asserting against it of any liability, obligation or claim that may
reasonably be expected to have a material adverse effect on the business,
financial condition results of operations or prospects of Fontana.
4.6 Authority of Fontana. The execution and delivery by
Fontana of this Agreement, the Agreement to Consolidate and, subject to the
requisite approval of the shareholders of Fontana, the consummation of the
transactions contemplated hereby have been duly and validly authorized by
all necessary action on the part of Fontana and this Agreement is and the
Agreement to Consolidate, upon execution by the parties thereto, will be a
valid and binding obligation of Fontana, enforceable in accordance with its
terms, except as the enforceability thereof may be limited by bankruptcy,
insolvency, moratorium or other similar laws affecting the rights of
creditors of national banks generally, by general equitable principles and
by Section 8(b)(6)(D) of the Federal Deposit Insurance Act, 18 U.S.C.
S1818(b)(6)(D).
4.7 Reserved.
4.8 No Conflicts; Defaults. The execution, delivery and
performance of this Agreement, the Agreement to Consolidate and the
consummation of the transactions contemplated herein, including the Merger,
and therein and compliance by Fontana with any provision hereof and thereof
will not (a) conflict with or result in a breach of, or default or loss of
any benefit under, any provision of its Charter Documents or, except as set
forth in Schedule 4.8 any material agreement, instrument or obligation to
which it is, or the Consolidated Association will become, a party or by
which the property of Fontana is, or the Consolidated Association will
become, bound or give any other party to any such agreement, instrument or
obligation the right to terminate or modify any term thereof; (b) except
for the prior approval of the FRB, the Comptroller, the FDIC, the
Superintendent and as set forth in Schedule 4.8, require any Consents;
(c) result in the creation or imposition of any Encumbrance on any of the
properties or assets or Fontana or the Consolidated Association; or
(d) subject to obtaining the Consents referred to in subsection (b) of this
Section 4.8 and the expiration of any required waiting period, violate any
Rules to which Fontana is subject.
4.9 Reports and Filings. Since January 1, 1989, Fontana has
filed all reports, returns, registrations and statements (such reports and
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filings referred to as "Fontana Filings"), together with any amendments
required to be made with respect thereto, that were required to be filed
with (a) the Comptroller, (b) the FDIC, (c) the Superintendent and (d) any
other applicable Governmental Entity, including taxing authorities, except
where the failure to file such reports, returns, registrations and
statements has not had and is not reasonably expected to have a material
adverse effect on the business, financial condition, results of operations
or prospects of Fontana. No administrative actions have been taken or
orders issued in connection with such Fontana Filings. As of their
respective dates, each of such Fontana Filings (y) complied in all material
respects with all Rules enforced or promulgated by the Governmental Entity
with which it was filed (or was amended so as to be so promptly following
discovery of any such noncompliance); and (z) did not contain any untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading. Any finan-
cial statement contained in any of such Fontana Filings that was intended
to present the financial position of Fontana fairly presented the financial
position of Fontana and was prepared in accordance with generally accepted
accounting principles or banking regulations consistently applied, except
as stated therein, during the periods involved. Fontana has furnished CVB
and Chino Valley with true and correct copies of all Fontana Filings filed
by Fontana since January 1, 1989.
4.10 Tax and Other Returns and Reports.
(a) Returns; Liabilities Recorded. Fontana has filed
all United States federal and foreign income tax returns, all state and
local franchise and income tax, real and personal property tax, sales and
use tax, premium tax, excise tax and all other United States federal, state
or local tax reports and returns that it is required to file ("Tax
Filings") and has paid all taxes, together with any interest and penalties,
shown or required to be shown to be owing thereon, except taxes contested
in good faith and for which adequate reserves have been set aside.
Adequate provision has been made in the books and records of Fontana, and
to the extent required by generally accepted accounting principles,
reflected in the Financial Statements of Fontana, for all taxes, interest
and penalties, whether or not due and payable and whether or not disputed,
with respect to any and all United States federal, foreign, state, local,
environmental (including under any Environmental Law) and other taxes for
the periods covered by the Financial Statements of Fontana and for all
prior and subsequent periods. Fontana has furnished CVB and Chino Valley
with true and correct copies of all Tax Filings filed since January 1,
1989.
(b) Elections. Fontana has not elected to be treated as
a consenting corporation under Section 341(f) of the Code.
(c) Taxes. Except as set forth on Schedule 4.10,
(i) neither the Internal Revenue Service nor any foreign, state, local or
103
other taxing authority (A) has, for any period beginning on or after
January 1, 1986, examined or is in the process of examining any United
States federal, foreign, state, local or other tax returns of, or
affecting, Fontana, or (B) is now asserting or, to the best knowledge of
Fontana, threatening to assert or initiate, any deficiency or claim for
taxes (or interest thereon or penalties in connection therewith) against
Fontana; and (ii) no waivers of statutes of limitations as to any United
States federal, foreign, state, local or other tax matters relating to
Fontana have been given by Fontana or have been requested from it.
4.11 Contracts. Except as otherwise set forth in Schedule
4.12 or Schedule 4.18, Schedule 4.11 sets forth a description of each
contract or offer that would become binding on acceptance by any third
party, whether written or oral (a) that obligates Fontana to pay or forego
receipt of $10,000 or more in any 12-month period, other than any Deposit
or any loan or commitment to lend made in the ordinary course of business;
(b) that involves the payment by or to Fontana of more than $10,000 per
year and may not be terminated by Fontana on less than 30 days' notice
without liability for penalty or damages of any kind, other than for the
provision of retail banking products in the ordinary course of business or
a commitment to lend made in the ordinary course of business; (c) that
relates to any guarantee or indemnification, other than for the provision
of retail banking products in the ordinary course of business or a loan or
commitment to lend made in the ordinary course of business; (d) that would
be terminable, other than by Fontana, as a result of the consummation of
the transactions contemplated by this Agreement, including the Merger; (e)
that may not be terminated by Fontana on less than 30 days' notice without
liability for penalty or damages in an amount of $10,000 or more, other
than for the provision of retain banking products in the ordinary course of
business or any loan or commitment to lend made in the ordinary course of
business; (f) that binds Fontana and contains a covenant by Fontana not to
compete or restricts in any manner the ability of Fontana to engage in or
conduct any activities; (g) that binds Fontana or any of its properties and
contains a preferential right in favor of a third party; (h) that relates
to the purchase or sale by Fontana of any loan, lease or other extension of
or commitment to extend credit or any interest therein, in each case for a
aggregate amount exceeding $25,000, whether or not servicing rights or
obligations have been retained by Fontana; or (i) that is otherwise
material to the business, financial condition, results of operations or
prospects of Fontana ("Material Contract"). Except as set forth on
Schedule 4.11, (x) each Material Contract is valid and subsisting;
(y) Fontana has duly performed all obligations under the Material Contracts
to be performed by it to the extent that such obligations to perform have
accrued; and (z) there are no breaches, violations or defaults or
allegations or assertions of such by any party under any Material Contract.
Fontana has furnished CVB and Chino Valley with true and correct copies of
all Material Contracts, including all amendments and supplements thereof.
4.12 Title to Property.
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(a) Real Property. Schedule 4.12 sets forth a descrip-
tion (including the character of the ownership interest of Fontana) of all
real property of Fontana, including fees, leaseholds and all other
interests in real property (including real property that is DPC Property)
("Real Property"). Except as set forth on Schedule 4.12, (i) Fontana has
duly recorded, in the appropriate county, all recordable interests in Real
Property, (ii) Fontana has good and marketable title to all Real Property
and other assets and properties reflected in the Financial Statements of
Fontana dated as of December 31, 1991 free and clear of all Encumbrances,
except (A) Encumbrances that in the aggregate do not materially detract
from the value, interfere with the use, or restrict the sale, transfer or
disposition, of such properties and assets or otherwise materially affect
Fontana; (B) any lien for taxes not yet due; (C) any Encumbrances arising
under the document that created the interest in the Real Property (other
than Encumbrances arising as a result of any breach or default by Fontana);
and (D) assets and properties disposed of since December 31, 1991 in the
ordinary course of business and consistent with past practice. Fontana has
furnished CVB and Chino Valley with true and correct copies of all leases
included on Schedule 4.12 delivered as of the date of the Agreement, all
title insurance policies relating to the Real Property and all documents
evidencing recordation of all recordable interests in the Real Property.
(b) Condition of Properties. All tangible properties of
Fontana that are material to the business, financial condition, results of
operations or prospects of Fontana are in a good state of maintenance and
repair, except for ordinary wear and tear, and are adequate for the conduct
of the business of Fontana as presently conducted. Except as set forth in
Schedule 4.12, (i) the execution of this Agreement, the performance of the
obligations of Fontana hereunder and the consummation of the transactions
contemplated herein, including the Merger, does not conflict with and will
not result in a breach or default under any lease, agreement or contract
described in Schedule 4.12, or give any other party thereto a right to
terminate or modify any term thereof; (ii) Fontana has no obligation to
improve any Real Property; (iii) each lease and agreement under which
Fontana is a lessee or holds or operates any property (real, personal or
mixed) owned by any third party is in full force and effect and is a valid
and legally binding obligation of Fontana, and, to the best knowledge of
Fontana, each other party thereto; (iv) Fontana and, to the best knowledge
of Fontana, each other party to any such lease or agreement have performed
in all material respects all the obligations required to be performed by
them to date under such lease or agreement and are not in default in any
material respect under any such lease or agreement and there is no pending
or, to the best knowledge of Fontana, threatened proceeding, or proceeding
which Fontana has reason to believe may be threatened, that would interfere
with the quiet enjoyment of such leasehold or such material property by
Fontana; (v) there has not been any generation, use, handling,
transportation, treatment, storage, release or disposal of any Hazardous
Substance in connection with the conduct of the business of Fontana that
has or might result in any liability under any Environmental Law and there
has never been a use of any of the Real Property that has or might result
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in any liability under any Environmental Law; (vi) no underground storage
tanks or surface impoundments are on or in the Real Property; and (vii) no
asbestos or polychlorinated biphenyls are contained or located on any of
the Real Property.
4.13 Litigation.
(a) Litigation. Schedule 4.13 sets forth, except as
otherwise set forth in Schedule 4.10, a description of each legal,
administrative, arbitration, investigatory or other proceeding (including,
without limitation, any investigation, action, or proceeding with respect
to taxes) pending or, to the best knowledge of Fontana, that has been
threatened, or which Fontana has reason to believe may be threatened,
against or affecting Fontana or its assets or business, and has had or may
have a material adverse effect on the assets, liabilities, business,
financial condition, results of operations or prospects of Fontana or
involves or may involve a claim or claims asserting aggregate liability of
$10,000 or more. Schedule 4.13 includes with respect to each matter iden-
tified, if applicable, the case title, the court, the court file number,
the date filed, the law firm representing Fontana and such other
information as may be reasonably requested by CVB and Chino Valley. Except
as set forth on Schedule 4.13, there is no (i) outstanding judgment, order,
writ, injunction or decree, stipulation or award of any Governmental Entity
or by arbitration, against, or, to the knowledge of Fontana, affecting
Fontana or its assets or business that (A) has had or may have a material
adverse effect on the assets, liabilities, business, financial condition,
results of operations or prospects of Fontana, (B) requires any payment by,
or excuses an obligation of a third party to make any payment to, Fontana
of an amount exceeding $10,000 or (C) has the effect of prohibiting any
business practice of, or the acquisition, retention or disposition of
property by, Fontana; or (ii) legal, administrative, arbitration,
investigatory or other proceeding pending or, to the best knowledge of
Fontana, that has been threatened, or which Fontana has reason to believe
may be threatened, against or affecting any director, officer, employee,
agent or representative of Fontana, in connection with which any such
Person has or may have rights to be indemnified by Fontana.
(b) Regulatory Proceedings. Except as set forth in
Schedule 4.13, Fontana is not subject to any cease and desist order or
directive or a party to any written agreement or memorandum
of understanding with any Governmental Entity charged with the supervision
or regulation of banks or bank holding companies, or engaged in the
insurance of bank deposits, that restricts the conduct of its business, or
in any manner relates to its capital adequacy, its credit or compliance
policies or its management. Copies of any such orders, agreements or
memoranda have been made available to CVB and Chino Valley.
4.14 Certain Adverse Changes. Except as specifically
required or effected by this Agreement, since December 31, 1991 there has
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not been, occurred or arisen any of the following (whether or not in the
ordinary course of business unless otherwise indicated):
(a) Any change in any of the assets, liabilities,
Permits, methods of accounting or accounting practice, business, or manner
of conducting business, of Fontana or any other event or development that
has had or may reasonably be expected to have a material adverse effect on
the assets, liabilities, Permits, business, financial condition, results of
operations or prospects of Fontana;
(b) Any damage, destruction or other casualty loss
(whether or not covered by insurance) that has had or may reasonably be
expected to have a material adverse effect on the assets, liabilities,
business, financial condition, results of operations or prospects of
Fontana or that may involve a loss of more than $10,000 in excess of
applicable insurance coverage; or
(c) Any amendment, modification or termination of any
existing, or entry into any new, Material Contract or Permit that has had
or may reasonably be expected to have a material adverse effect on the
assets, liabilities, business, financial condition, results of operations
or prospects of Fontana;
(d) Any disposition by Fontana of an asset the lack of
which has had or may reasonably be expected to have a material adverse
effect on the business, financial condition, results of operations or
prospects of Fontana; or
(e) Any direct or indirect redemption, purchase or other
acquisition by Fontana of any Equity Securities or any declaration, setting
aside or payment of any dividend or other distribution on or in respect of
Fontana Stock whether consisting of money, other personal property, real
property or other things of value.
4.15 Minute Books. The minute books of Fontana accurately
reflect all material actions duly taken by shareholders, boards of
directors and committees and contain true and complete copies of its
Charter Documents and all amendments thereto.
4.16 Accounting Records; Data Processing. Fontana has
records that, in all material respects, fairly reflect its transactions,
and accounting controls sufficient to ensure that such transactions are in
all material respects (a) executed in accordance with management's general
or specific authorization; and (b) recorded in conformity with generally
accepted accounting principles. Except as set forth in Schedule 4.16, the
procedures and equipment, including, without limitation, the data
processing equipment, data transmission equipment, related peripheral
equipment and software, used by Fontana in the operation of its business
(including any disaster recovery facility) to generate and retrieve such
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records are adequate in relation to the size and complexity of the business
of Fontana.
4.17 Insurance. Schedule 4.17 sets forth all insurance
policies and bonds maintained by Fontana. Except as set forth on Schedule
4.17, (a) Fontana is, and at all times within five years hereof has been,
insured with insurers and has insurance coverage adequate to insure against
all risks normally insured against by companies in similar businesses and
of comparable size; (b) Fontana is not in default under any policy of
insurance or bond such that it could be canceled and all such insurance
policies and bonds maintained by Fontana are in full force and effect and,
except for expirations in the ordinary course, will remain so through and
after the Effective Time of the Merger; and (c) Fontana has filed claims
with, or given notice of claims to, its respective insurers with respect to
all material matters and occurrences for which it believes it has coverage.
Fontana has furnished CVB and Chino Valley with true and correct copies of
all insurance policies and bonds identified on Schedule 4.17, including all
amendments and supplements thereto.
4.18 Employee Benefit Plans and Employment and Labor
Contracts.
(a) Schedule 4.18, sets forth and describes all employee
benefit plans and any collective bargaining agreements, labor contracts and
employment agreements in which Fontana participates, or by which it is
bound, including, without limitation, (i) any profit sharing, deferred
compensation, bonus, stock option, stock purchase, pension, retainer
consulting, retirement, welfare or incentive plan or agreement whether
legally binding or not, (ii) any plan providing for "fringe benefits" to
its employees, including but not limited to vacation, sick leave, medical,
hospitalization, life insurance and other insurance plans, and related
benefits, (iii) any written employment agreement and any other employment
agreement not terminable at will, or (iv) any other "employee benefit plan"
(within the meaning of Section 3(3) of ERISA). Except as set forth in
Schedule 4.18, (v) there are no negotiations, demands or proposals that are
pending or threatened that concern matters now covered, or that would be
covered, by any employment agreements or employee benefit plans other than
amendments to plans qualified under Section 401 of the Code that are
required by the Tax Reform Act of 1986 and later legislation; (w) Fontana
is in compliance with the requirements prescribed by any and all Rules
currently in effect including but not limited to ERISA and the Code
applicable to all such employee benefit plans; (x) Fontana is in compliance
in all material respects with all other Rules applicable to employee
benefit plans and employment agreements; (y) Fontana has performed all of
its obligations under all such employee benefit plans and employment
agreements; and (z) there are no actions, suits or claims (other than
routine claims for benefits) pending or threatened against any such
employee benefit plans and employment agreements or the assets of such
plans, and to the best knowledge of Fontana, no facts exist which could
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give rise to any actions, suits or claims (other than routine claims for
benefits) against such plans or the assets of such plans.
(b) The "employee pension benefit plans" (within the
meaning of Section 3(2) of ERISA) described on Schedule 4.18 have been duly
authorized by the Board of Directors of Fontana. Except as set forth in
Schedule 4.18, each such plan and associated trust is qualified in form and
operation under Section 401(a) and exempt from tax under Section 501(a) of
the Code, respectively, and no event has occurred that will or could give
rise to disqualification of any such plan or loss of the exemption from tax
of any such trust under said Sections. No event has occurred that will or
could subject any such plans to tax under Section 511 of the Code. None of
such plans has engaged in a merger or consolidation with any other plan or
transferred assets or liabilities from any other plan. No prohibited
transaction (within the meaning of Section 409 or 502(i) of ERISA or
Section 4975 of the Code) or party-in-interest transaction (within the
meaning of Section 406 of ERISA) has occurred with respect to any of such
plans. No employee of Fontana has engaged in any transactions which could
subject Fontana to indemnify such person against liability. All costs of
plans have been provided for on the basis of consistent methods in
accordance with sound actuarial assumptions and practices. No employee
benefit plan has incurred any "accumulated funding deficiency" (as defined
in ERISA), whether or not waived, taking into account contributions made
within the period described in Section 412(c)(10) of the Code; nor are
there any unfunded amounts under any employee benefit plan; nor has Fontana
failed to make any contributions or pay any amount due and owing as
required by law or the terms of any employee benefit plan or employment
agreement. Subject to amendments that are required by the Tax Reform Act
of 1986 and later legislation, since the last valuation date for each
employee pension benefit plan, there has been no amendment or change to
such plan that would increase the amount of benefits thereunder.
(c) Fontana does not sponsor or participate in, and has
not sponsored or participated in, any employee benefit pension plan to
which Section 4021 of ERISA applies that would create a liability under
Title IV of ERISA.
(d) Fontana does not sponsor or participate in, and has
not sponsored or participated in, any employee benefit pension plan that is
a "multi-employer plan" (within the meaning of Section 3(37) of ERISA) that
would subject such Person to any liability with respect to any such plan.
(e) All group health plans of Fontana (including any
plans of affiliates of Fontana that must be taken into account under
Section 162(i) or (k) of the Code as in effect immediately prior to the
Technical and Miscellaneous Revenue Act of 1988 and Section 4980B of the
Code) have been operated in compliance with the group health plan
continuation coverage requirements of Section 4980B of the Code to the
extent such requirements are applicable.
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(f) There have been no acts or omissions by Fontana that
have given rise to or may give rise to fines, penalties, taxes, or related
charges under Sections 502(c) or (i) or 4071 of ERISA or Chapter 43 of the
Code.
(g) Except as described in Section 4.18(j), Fontana does
not maintain any employee benefit plan or employment agreement pursuant to
which any benefit plan or other payment will be required to be made by
Fontana or pursuant to which any other benefit will accrue or vest in any
director, officer or employee of Fontana, in either case as a result of the
consummation of the transactions contemplated by the Agreement.
(h) No "reportable event," as defined in ERISA, has
occurred with respect to any of the employee benefit plans.
(i) All amendments required to bring each of the
employee benefit plans into conformity with all of the provisions of ERISA
and the Code and all other applicable laws, rules and regulations have been
made.
(j) Schedule 4.18 sets forth the name of each director,
officer or employee of Fontana entitled to receive any benefit or any
payment of any amount under any existing employment agreement, severance
plan or other benefit plan as a result of the consummation of any trans-
action contemplated in this Agreement, including the Merger, and with
respect to each such person, the nature of such benefit or the amount of
such payment, the event triggering the benefit or payment, and the date of,
and parties to, such employment agreement, severance plan or other benefit
plan. Fontana has furnished CVB and Chino Valley with true and correct
copies of true copies of all documents with respect to the plans and
agreements referred to in Schedule 4.18 delivered as of the date of the
Agreement, including all amendments and supplements thereto, and all
related summary plan descriptions. For each of the employee pension
benefit plans of Fontana referred to in Schedule 4.18 delivered as of the
date of the Agreement, Fontana has furnished CVB and Chino Valley with true
and correct copies of (i) a copy of the Form 5500 which was filed in each
of the three most recent plan years, including without limitation, all
schedules thereto and all financial statements with attached opinions of
independent accountants; (ii) the most recent determination letter from the
Internal Revenue Service; (iii) the statement of assets and liabilities as
of the most recent valuation date; and (iv) the statement of changes in
fund balance and in financial position or the statement of changes in net
assets available for benefits under each of said plans for the most
recently ended plan year. The documents referred to in subdivisions (iii)
and (iv) fairly present the financial condition of each of said plans as of
and at such dates and the results of operations of each of said plans, all
in accordance with generally accepted accounting principles applied on a
consistent basis.
4.19 Investments. Except for investments that have matured
or been sold, Schedule 4.19 sets forth all of the investments reflected in
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the balance sheet of Fontana dated December 31, 1991 contained in the
Fontana Financial Statements and all of the investments made since
December 31, 1991. Except as set forth in Schedule 4.19, all such
investments are legal investments under applicable Rules and none of such
investments is subject to any restriction, contractual, statutory or other,
that would materially impair the ability of the entity holding such
investment to dispose freely of any such investment at any time, except
restrictions on the public distribution or transfer of such investments
under the Securities Act or state securities laws.
4.20 Broker's or Finder's Fees. No agent, broker, investment
or commercial banker, or other Person acting on behalf of Fontana, is or
will be entitled to any broker's or finder's fee or any other commission or
similar fee directly or indirectly in connection with any of the
transactions contemplated in this Agreement, including the Merger.
4.21 Compliance with Rules. Fontana has conducted its
business in accordance with applicable Rules, except for such violations
and noncompliance that have not had, and that are not reasonably expected
to have, a material adverse effect on the business, financial condition,
results of operations or prospects of Fontana. To the best knowledge of
Fontana, Fontana's compliance under the CRA should not constitute grounds
for either the denial by any bank regulatory authority of any application
to consummate the transactions contemplated by this Agreement or the
imposition of a materially burdensome condition in connection with the
approval of any such application.
4.22 Certain Interests. Schedule 4.22 sets forth a descrip-
tion of each instance in which an officer or director of Fontana (a) has
any material interest in any property, real or personal, tangible or
intangible, used by or in connection with the business of Fontana; (b) is
indebted to Fontana except for normal business expense advances; or (c) is
a creditor (other than as a Deposit holder) of Fontana except for amounts
due under normal salary and related benefits or reimbursement of ordinary
business expenses. Except as set forth in Schedule 4.22, all such
arrangements are arm's length transactions pursuant to normal commercial
terms and conditions.
4.23 Extensions of Credit. Schedule 4.23 sets forth a
description (a) by type and classification, if any, of each loan, lease
other extension of credit and commitment to extend credit; (b) by type and
classification of all loans, leases, other extensions of credit and
commitments to extend credit that have been classified by its bank
examiners or auditors (external or internal) as "Watch List,"
"Substandard," "Doubtful," "Loss" or any comparable classification; and (c)
all consumer loans as to which any payment of principal, interest or other
amount is 90 days or more past due.
4.24 Operating Losses. Schedule 4.24 sets forth any
Operating Loss (as defined below) that has occurred at Fontana during the
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period after December 31, 1990 through December 31, 1991. Except as set
forth on Schedule 4.24, since December 31, 1991, to the knowledge of
Fontana, no event has occurred, and no action has been taken or omitted to
be taken by any employee of Fontana that has resulted in the incurrence by
Fontana of an Operating Loss or that might reasonably be expected to result
in the incurrence by Fontana of an Operating Loss after December 31, 1991,
which, net of any insurance proceeds payable in respect thereof, exceeds,
or would exceed $5,000 by itself or $10,000 when aggregated with all other
Operating Losses during such period. For purposes of this Agreement,
"Operating Loss" means any loss resulting from cash shortages, lost or
misposted items, disputed clerical and accounting errors, forged checks,
payment of checks over stop payment orders, counterfeit money, wire
transfers made in error, theft, robberies, defalcations, check kiting,
fraudulent use of credit cards or electronic teller machines, civil money
penalties, fines, litigation, claims, arbitration awards or other similar
acts or occurrences.
4.25 Powers of Attorney. Except as set forth on Schedule
4.25, Fontana has not granted any Person a power of attorney or similar
authorization that is presently in effect or outstanding.
4.26 Offices and ATMs. Schedule 4.26 sets forth the
headquarters of Fontana (identified as such) and each of the offices and
automated teller machines ("ATMs") maintained and operated by Fontana
(including, without limitation, representatives and loan production offices
and operations centers) and the location thereof. Except as set forth on
Schedule 4.26, Fontana maintains no other office or ATM and conducts
business at no other location, and Fontana has not applied for nor received
permission to open any additional branch nor operate at any other location.
4.27 Disclosure Documents and Applications. None of the
information supplied or to be supplied by or on behalf of Fontana ("Fontana
Supplied Information") for inclusion in (a) the proxy statement or other
materials and documents ("Proxy Statement") to be mailed to the
shareholders of Fontana in connection with obtaining the approval of the
shareholders of Fontana of this Agreement, the Consolidation and the other
transactions contemplated hereby, and (b) any other documents to be filed
with the FRB, the Comptroller, the FDIC, the Superintendent or any other
Governmental Entity in connection with the transactions contemplated in
this Agreement will, at the respective times such documents are filed or
become effective, or with respect to the Proxy Statement, when mailed,
contain any untrue statement of a material fact, or omit to state any
material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading.
4.28 Accuracy and Currentness of Information Furnished. The
representations and warranties made by Fontana hereby or in the schedules
hereto contain no statements of fact which are untrue or misleading, or
omit to state any material fact which is necessary under the circumstances
112
to prevent the statements contained herein or in such schedules from being
misleading. Fontana hereby covenants that it shall, not later than the
15th day of each calendar month between the date hereof and the Closing
Date, amend or supplement the schedules prepared and delivered pursuant to
this Article 4 to ensure that the information set forth in such schedules
accurately reflects the then-current status of Fontana. Fontana shall
further amend or supplement the schedules as of the Closing Date if
necessary to reflect any additional changes in the status of Fontana.
4.29 Effective Date of Representations, Warranties, Covenants
and Agreements. Each representation, warranty, covenant and agreement of
Fontana set forth in this Agreement shall be deemed to be made on and as of
the date hereof and as of the Closing Date.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF CVB AND CHINO VALLEY
CVB and Chino Valley represent and warrant to Fontana as follows:
5.1 Organization, Standing and Power of CVB and Chino Valley.
CVB is duly organized and existing as a corporation under the laws of the
State of California and is registered as a bank holding company under the
Bank Holding Company Act of 1956, as amended. Chino Valley is duly
organized and existing as a corporation under the laws of the State of
California and is authorized by the Superintendent to conduct a general
banking business. CVB and Chino Valley have all requisite corporate power
and authority to own, lease and operate their respective properties and
assets and to carry on their respective businesses as presently conducted.
5.2 Authority of CVB and Chino Valley. The execution and
delivery by CVB and Chino Valley of this Agreement and by Chino Valley of
the Agreement of Merger and the consummation of the transactions
contemplated hereby have been duly and validly authorized by all necessary
corporate action on the part of CVB and Chino Valley and this Agreement is
a valid and binding obligation of CVB and Chino Valley, enforceable in
accordance with its terms, except as the enforceability thereof may be
limited by bankruptcy, insolvency, moratorium or other similar laws
affecting the rights of creditors of California banks generally, by general
equitable principles and by Section 8(b)(6)(D) of the Federal Deposit
Insurance Act, 18 U.S.C. S1818(b)(6)(D).
5.3 No Conflicts; Defaults. The execution, delivery and
performance of this Agreement by CVB and Chino Valley, and the Agreement of
Merger by Chino Valley, the consummation of the transactions contemplated
herein and compliance by CVB and Chino Valley with any provision hereof
will not (a) conflict with their respective Charter Documents; (b) except
for the prior approval of the FRB, the Comptroller, the FDIC and the
Superintendent, require any Consents; or (c) subject to obtaining the
Consents referred to in subsection (b) of this Section 5.3 and the
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expiration of any required waiting period, violate any Rules to which CVB
or Chino Valley is subject.
5.4 Accuracy of Information Furnished. None of the
information supplied or to be supplied by or on behalf of CVB or Chino
Valley ("CVB Supplied Information") for inclusion in (a) the Proxy
Statement, and (b) any other documents to be filed with the FRB, the
Comptroller, the FDIC, the Superintendent or any Governmental Entity in
connection with the transactions contemplated in this Agreement will, at
the respective times such documents are filed or become effective, or with
respect to the Proxy Statement when mailed, contain any untrue statement of
a material fact, or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading.
5.5 Adequacy of Capital. To the best knowledge of CVB, CVB
has as of the date of this Agreement sufficient capital and the financial
resources to consummate the transactions contemplated by this Agreement,
including the Merger.
5.6 Compliance with Rules. To the best knowledge of CVB and
Chino Valley, neither CVB nor Chino Valley is in default under, or in
violation of, any Rule where such default or violation would cause either
of them not to be able to consummate the transactions contemplated by this
Agreement, including the Merger.
5.7 Authority of New Bank. The execution and delivery by New
Bank of the Agreement to Consolidate and, subject to the requisite approval
of the shareholder of New Bank, the consummation of the transactions
completed thereby will be duly and validly authorized by all necessary
corporation action on the part of New Bank, and the Agreement to
Consolidate will be upon execution by the parties thereto a valid and
binding obligation of New Bank, enforceable in accordance with its terms,
except as the enforceability thereof may be limited by bankruptcy,
insolvency, moratorium or other similar laws affecting the rights of
creditors generally and by general equitable principles or by the
provisions of Section 8(b)(6)(D) of the Federal Deposit Insurance Act, 12
U.S.C. Section 1818(b)(6)(D). Except as set forth in Schedule 5.7, neither
the execution and delivery by New Bank of the Agreement to Consolidate, nor
the consummation of the transactions contemplated therein, nor compliance
by New Bank with any of the provisions thereof will (a) conflict with or
result in a breach of any provision of its Charter Documents, (b) except
for approval by the shareholder of New Bank and the prior approval of the
FRB, the Comptroller or the FDIC, require any Consents; (c) result in the
creation or imposition of any Encumbrance on any of the properties or
assets of New Bank; or (d) subject to obtaining the Consents referred to in
subsection (b) of this Section 5.7, and the expiration of any waiting
period, violate any Rules to which New Bank is subject.
ARTICLE 6
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CONDUCT AND TRANSACTIONS PRIOR TO
EFFECTIVE TIME OF MERGER
6.1 Access to Information. (a) Fontana will authorize and
permit CVB and Chino Valley, their representatives, accountants and counsel
(collectively "Representatives"), to conduct complete and full reviews of
the business, operations, assets and liabilities of Fontana at such dates
as CVB and Chino Valley may from time to time request. Without limiting
the foregoing, CVB and Chino Valley and their Representatives shall have
the right (i) to review all of Fontana's properties, books, records, loans
and leases, operating reports, audit reports, operation instructions and
procedures, tax returns, tax settlement letters, contracts and documents,
and all other information with respect to its business affairs, financial
condition, assets and liabilities, (ii) to make copies of such books,
records and other documents and (iii) to discuss its business affairs,
condition (financial and otherwise), assets and liabilities with Fontana's
directors, officers, accountants and counsel, as CVB and Chino Valley
consider necessary or appropriate for the purposes of familiarizing
themselves with the business and operations of Fontana, conducting an
evaluation of the assets and liabilities of Fontana, determining whether to
proceed with the transactions contemplated by this Agreement, determining
the accuracy of the representations and warranties set forth in Article 4,
obtaining any necessary orders, consents or approvals of the transactions
contemplated by this Agreement by any Governmental Entity. Any such review
shall be conducted in cooperation with the officers of Fontana and in such
a manner to minimize any disruption of, or interference with, the normal
business operations of Fontana. In addition, Fontana will cause Vavrinek,
Trine, Day & Co. to make available to CVB and Chino Valley and their
Representatives such personnel, work papers and other documentation of
Vavrinek, Trine, Day & Co., relating to its work papers and its audits and
examinations of the books and records of Fontana or the tax returns of
Fontana as may be requested by CVB and Chino Valley in connection with
their review of the foregoing matters.
(b) In addition to the requirements of subsection (j) of
Section 6.3, a Representative of CVB and Chino Valley, selected by CVB and
Chino Valley in their sole discretion, shall be authorized and permitted to
review each loan, lease, or other credit originated by Fontana after the
date hereof, and all information associated with such loan, lease or other
credit within three Business Days of such origination.
(c) A Representative of CVB and Chino Valley, selected by
CVB and Chino Valley in their sole discretion, shall be permitted by
Fontana to attend all regular and special Board of Directors' and committee
meetings of Fontana from the date shareholder approval pursuant to Section
6.7 has been obtained until the Effective Time of the Consolidation;
provided, however, that the attendance of such Representative shall not be
required at any meeting, or portion thereof, for the sole purpose of
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discussing the transactions contemplated by this Agreement or the
obligations of Fontana under this Agreement.
6.2 Material Adverse Changes; Reports; Financial
Statements; Filings.
(a) Fontana will promptly notify CVB and Chino Valley as
provided in Section 11.11 (i) of any event which may materially and
adversely affect the business, financial condition, results of operations
or prospects of Fontana; (ii) in the event it determines it is possible
that the conditions to the performance of CVB and Chino Valley set forth in
Sections 8.1 and 8.2 may not be satisfied; or (iii) any event, development
or circumstance that, to the best knowledge of Fontana, will or, with the
passage of time or the giving of notice or both, is reasonably expected to
result in the loss to Fontana of the services of any Executive Officer of
Fontana.
(b) Fontana will furnish to CVB and Chino Valley as
provided in Section 11.11, as soon as practicable, and in any event within
five Business Days after it is prepared or becomes available to Fontana,
(i) a copy of any report submitted to the Board of Directors of Fontana or
committee thereof and access to the working papers related thereto and
copies of other operating or financial reports prepared for management of
any of its business and access to the working papers related thereto;
provided, however, that Fontana need not furnish CVB and Chino Valley
communications of their legal counsel regarding Fontana's rights against
and obligations to CVB and Chino Valley under this Agreement; (ii) copies
of all Fontana Filings; (iii) monthly unaudited balance sheets and
statements of earnings for Fontana; and (iv) such other reports as CVB and
Chino Valley may reasonably request relating to Fontana.
(c) Each of the financial statements delivered pursuant to
subsection (b)(iii) of this Section 6.2 (i) shall be prepared in accordance
with generally accepted accounting principles on a basis consistent with
that of the audited Fontana Financial Statements; (ii) shall set forth
adequate reserves for loan losses and other contingencies; and (iii) shall
be accompanied by a certificate of the Chief Financial Officer of Fontana
to the effect that such financial statements fairly present the financial
condition and results of operations of Fontana for the periods covered, and
reflect all adjustments (which consist only of normal recurring
adjustments) necessary for a fair presentation thereof.
(d) The calculation of Adjusted Stockholders' Equity and
Deferred Loan Fees shall be made in accordance with generally accepted
accounting principles on a basis consistent with that of the audited
Fontana Financial Statements.
(e) Fontana agrees that through the Effective Time of the
Consolidation, each of its filings, including those referred to in Section
4.9, (i) will comply in all material respects with all of the Rules
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enforced or promulgated by the Governmental Entity with which it will be
filed; and (ii) will not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they
are made, not misleading. Any financial statement contained in any of such
filings that is intended to present the financial position of the entity to
which it relates will fairly present the financial position of such entity
and will be prepared in accordance with generally accepted accounting
principles or banking regulations consistently applied during the period
involved.
6.3 Limitation on Fontana's Conduct Prior to Closing. Unless
(i) otherwise provided in this Agreement, (ii) required by any applicable
Rule or (iii) consented to by CVB and Chino Valley (which consent shall be
deemed granted, except with respect to subsection (j) of this Section 6.3,
if within 5 days of CVB and Chino Valley's receipt of a written notice of a
request for prior consent, written notice of objection is not received by
Fontana), Fontana agrees that:
(a) Ordinary Course. Fontana shall conduct its affairs
in the ordinary course of business consistent with past practice and will
use all reasonable efforts to preserve its relationships with customers,
suppliers and others having business dealings with it.
(b) Preservation of Permits. Fontana shall not amend,
modify, terminate or fail to renew or preserve its Permits.
(c) Preservation of Contracts. Fontana shall not amend,
modify, or, except as they may expire in accordance with their terms,
terminate any Material Contract or any lease or other agreement relating to
the Real Property or materially default in the performance of any of its
obligations under any Material Contract or any lease or other agreement
relating to the Real Property.
(d) Restrictions on New Contracts. Fontana shall not
enter into any Material Contract or any lease or other agreement relating
to the Real Property, except (i) Deposits and short-term debt securities
(obligations maturing within one year) issued in the ordinary course of
business and consistent with past practice; (ii) obligations arising out
of, incurred in connection with, or related to the consummation of this
Agreement; (iii) commitments to make loans or other extensions of credit in
compliance with subsections (j) and (k) below; (iv) loan sales in the
ordinary course of business and consistent with past practice, without any
recourse except to a reserve account funded by an interest rate spread
otherwise payable to the servicer of the loans sold, provided that no such
commitment to sell loans shall extend beyond the Effective Time of the
Consolidation; and (v) in the ordinary course of business and consistent
with past practice, purchases of interest in loans or purchases of loan
portfolios originated and serviced (if not by Fontana) by a nationally
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recognized originator and servicer, the debt of which is of investment
grade.
(e) Maintenance of Insurance. Fontana shall not
terminate or unilaterally fail to renew any existing insurance coverage or
bonds.
(f) Restrictions on Compensation. Fontana shall not
grant any general or uniform increase in the rates of pay of employees or
employee benefits or any increase in salary, employee benefits or
compensation of any officer, employee, director, agent or any Person or pay
any bonus to any Person, except as required by any existing written
employment agreement.
(g) Restrictions on Transfer of Assets. Fontana shall
not sell, transfer, mortgage, encumber or otherwise dispose of any assets
or release or waive any claim, except in the ordinary course of business
and consistent with past practice or as required by any existing contract
or for ordinary repairs, renewals or replacements.
(h) Grant or Issuance of Securities; Distributions;
Reclassifications. Fontana shall not acquire for value or grant, issue,
sell or redeem any Equity Securities or debt securities of Fontana, or
declare, issue or pay any dividend or other distribution of assets, whether
consisting of money, other personal property, real property or other things
of value, to the shareholders of Fontana, or split, combine or reclassify
any shares of its capital stock or other Equity Securities.
(i) Charter Documents. Fontana shall not amend or
modify any of its Charter Documents.
(j) Extensions of Credit. Fontana shall not grant or
commit to grant any loan or other extension of credit, if such loan or
other extension of credit, together with all other credit then outstanding
to the same Person and all Affiliates of such Person, would exceed $25,000,
prior to receiving CVB and Chino Valley's Consent. Consent shall be deemed
granted if within two Business Days of written notice delivered to CVB and
Chino Valley's designee in writing notice of objection is not received by
Fontana.
(k) Credit Standards. Fontana shall not make its credit
underwriting policies, standards or practices relating to the making of
loans and other extensions of credit, or commitments to make loans and
other extensions of credit, less stringent than those in effect on
December 31, 1991.
(l) Capital Expenditures. Fontana shall not make any
capital expenditures, or commitments with respect thereto, except in the
ordinary course of business and consistent with past practice.
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(m) No Extraordinary Payments. Fontana shall not make
special or extraordinary payments to any Person.
(n) Investments. Fontana shall not make any investment,
by purchase of stock or securities, contributions to capital, property
transfers, purchases of any property or assets or otherwise, in any other
Person, except in the ordinary course of business and consistent with past
practice.
(o) Compromise of Taxes. Fontana shall not (i) compro-
mise or otherwise settle or adjust any assertion or claim of a deficiency
in taxes (or interest thereon or penalties in connection therewith);
(ii) file any appeal from an asserted deficiency; (iii) file or amend any
United States federal, foreign, state or local tax return; or (iv) make any
tax election or change any method or period of accounting unless required
by generally accepted accounting principles or United States federal Rules.
(p) Employee Benefits. Fontana shall not enter into or
consent to any new employment agreement or other employee benefit
arrangement, or amend or modify any employment agreement or other employee
benefit arrangement in effect on the date of this Agreement to which
Fontana is a party or bound.
(q) Powers of Attorney. Fontana shall not grant any
Person a power of attorney or similar authority, except in accordance with
a written policy previously disclosed to CVB and Chino Valley.
(r) Offices. Fontana shall not open or close any branch
or other office at which the business of Fontana is or will be conducted.
(s) No Agreement to Forbidden Actions. Fontana shall
not agree or make any commitment to take any actions prohibited by this
Section 6.3.
6.4 Certain Loans and Other Extension of Credit. Fontana
will promptly inform CVB and Chino Valley of the amounts and categories of
any loans, leases or other extensions of credit of Fontana that have been
classified by any bank supervisory authority, by any unit of Fontana or by
any other Person as "Watch List," "Substandard," "Doubtful," "Loss" or any
comparable classification. Fontana will furnish to CVB and Chino Valley,
as soon as practicable, and in any event within 10 days after the end of
each calendar month, schedules including a listing of the following:
(a) classified credits, showing with respect to each
such credit the classification category, credit type and office;
(b) nonaccrual credits, showing with respect to each
such credit the credit type and office;
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(c) accrual exception credits that are delinquent 90 or
more days and have not been placed on nonaccrual status, showing with
respect to each such credit the credit type and office;
(d) delinquent credits, showing with respect to each
such credit the credit type, office and an aging schedule broken down into
30-59, 60-89, 90-119 and 120+ day categories;
(e) loan and lease participations, stating, with respect
to each, whether it was purchased or sold, the loan or lease type, and the
office;
(f) loans or leases (including any commitments) by
Fontana to any director, officer, or employee of Fontana, or any
shareholder holding 5% or more of the Fontana Stock, including with respect
to each such loan or lease, the identity and, to the best knowledge of
Fontana, the relation of the borrower to Fontana, the loan or lease type
and the outstanding and undrawn amounts;
(g) letters of credit, showing with respect to each
letter of credit the credit type and office;
(h) loans or leases charged off during the previous
month, showing with respect to each such loan or lease, the credit type and
office;
(i) loans or leases written down during the previous
month, including with respect to each such loan or lease, the credit type
and office;
(j) other real estate or assets owned, stating with
respect to each its credit type;
(k) a reconciliation of the allowance for loan and lease
losses, identifying specifically the amount and sources of all additions
and reductions to the allowance (which may be by reference to specific
portions of another schedule furnished pursuant to this Section 6.4 and, in
the case of unallocated adjustments, shall disclose the methodology and
calculations through which the amount of such adjustment was determined);
(l) extensions of credit originated on or after the date
of the schedule previously provided to CVB and Chino Valley (or, if it is
the first such schedule, the date of this Agreement) and before the date of
the schedule in which reported, showing with respect to each, the credit
type and the office; and
(m) renewals or extensions of maturity of outstanding
extensions of credit, showing with respect to each, the credit type and the
office.
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6.5 No Solicitation, etc.
(a) Fontana shall not, and will cause each of its
officers, directors, employees, agents, legal and financial advisors and
Affiliates not to, directly or indirectly, make, solicit, encourage,
initiate or enter into any agreement or agreement in principle, or announce
any intention to do any of the foregoing, with respect to any of Fontana's
business and properties or any of Fontana's Equity Securities or debt
securities, whether by purchase, merger (other than by CVB and Chino
Valley), purchase of assets, tender offer or otherwise (an "Alternative
Transaction").
(b) Fontana shall not, and will cause each of its
officers, directors, legal and financial advisors, agents and Affiliates
not to, directly or indirectly, participate in any negotiations or
discussions regarding, or furnish any information with respect to, or
otherwise cooperate in any way in connection with, or assist or participate
in, facilitate or encourage, any effort or attempt to effect or seek to
effect, any Alternative Transaction with or involving any Person other than
CVB and Chino Valley, unless Fontana shall have received an unsolicited
written offer from a Person other than CVB and Chino Valley to effect an
Alternative Transaction and the Board of Directors of Fontana is advised in
writing by outside legal counsel that in the exercise of the fiduciary
obligations of the Board of Directors such information should be provided
to or such discussions or negotiations undertaken with the Person
submitting such unsolicited written offer.
(c) Fontana will promptly communicate to CVB and Chino
Valley the terms of any proposal which it may receive in respect of any
Alternative Transaction and will keep CVB and Chino Valley informed as to
the status of any actions, including negotiations or discussions, taken
pursuant to subsection (b) of this Section 6.5.
6.6 Schedules of Fontana. Promptly in the case of material
matters, and not less than monthly in the case of all other matters,
Fontana shall amend or supplement the schedules provided for herein as
necessary so that the information contained therein accurately reflects the
then current status of Fontana and shall transmit copies of such amendments
or supplements to CVB and Chino Valley in accordance with Section 11.11.
6.7 Shareholder Approval. Promptly after the execution
of this Agreement, Fontana shall prepare the Proxy Statement and take all
action necessary in accordance with applicable Rules and its Charter
Documents to submit to its shareholders for approval the Agreement, the
Agreement to Consolidate and the other transactions contemplated hereby. In
connection with such submission, the Board of Directors shall recommend
shareholder approval of all the matters referred to in this Section 6.7 and
Fontana shall use its best efforts to obtain such shareholder approval.
Fontana shall complete the solicitation of shareholder approval of the
matters referred to in this Section 6.7 prior to December 15, 1992.
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6.8 Compliance with Rules. Fontana shall comply with the
requirements of all applicable Rules, the noncompliance with which would
materially and adversely affect the assets, liabilities, business,
financial condition, results of operations or prospects of Fontana.
6.9 Disposition of Employee Benefit Plans. Fontana shall
take all actions requested by CVB and Chino Valley to cause, on or before
the Closing Date, (i) the termination of all of its employee benefits
plans, programs and arrangements, including the Fontana Deferred
Compensation Plan and (ii) the payment of all benefits payable under such
plans, programs and arrangements.
6.10 Cancellation of Fontana Options. Fontana shall take all
actions necessary to cancel and terminate all outstanding Fontana Options
on terms and conditions satisfactory to CVB and Chino Valley on or before
the Closing Date.
6.11 Termination of Fontana Employment Agreements. Fontana
shall take all actions necessary to terminate all Fontana Employment
Agreements on terms and conditions satisfactory to CVB and Chino Valley on
or before the Closing Date.
6.12 Extension of Lease. Fontana shall take all actions
necessary, including but not limited to obtaining a certificate of
occupancy from the City of Fontana, to obtain an extension of the Fontana
Lease on terms and conditions satisfactory to CVB and Chino Valley on or
prior to the Closing Date.
6.13 Termination of Certain Agreements. Fontana shall take
all actions necessary to terminate the Fontana Banking Services Agreement
and the Fontana Computer Accounting Agreement on terms and conditions
satisfactory to CVB and Chino Valley on the Closing Date.
6.14 Execute Agreement to Consolidate. As soon as possible
after receipt of approval of the Superintendent to organize New Bank,
Fontana shall execute the Agreement to Consolidate.
ARTICLE 7
FURTHER COVENANTS OF THE PARTIES
7.1 Execution of Agreement to Consolidate. As soon as
practicable after receipt of approval of the Superintendent to form New
Bank, CVB shall cause New Bank to execute the Agreement to Consolidate.
7.2 Filings, Consents and Insurance.
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(a) The Parties will cooperate and use all reasonable
efforts to make all registrations, filings and applications, to give all
notices and to obtain all Consents necessary or desirable on the part of
the Parties for the consummation of the Consolidation, the Merger, and the
other transactions contemplated in this Agreement.
(b) To the extent that the Consent of a third party ("Third
Party Consent") with respect to any contract, agreement, license,
franchise, lease, commitment, arrangement, permit or release that is
material to the business of Fontana or that is contemplated in this
Agreement is required in connection with the Consolidation, the Merger or
the transactions contemplated in this Agreement, Fontana shall use all
reasonable efforts to obtain such Third Party Consent prior to the
Effective Time of the Consolidation.
(c) To the extent that a Third Party Consent identified on
Schedule 5.3 is required in connection with the Consolidation, the Merger
or the transactions contemplated by this Agreement, CVB and Chino Valley
shall use all reasonable efforts to obtain such Third Party Consent prior
to the Effective Time of the Consolidation.
(d) To the extent that a Third Party Consent that is
contemplated in this Agreement is required to consummate the Consolidation,
the Merger or the transactions contemplated in this Agreement, CVB and
Chino Valley shall use all reasonable efforts to obtain such Third Party
Consent prior to the Effective Time of the Consolidation.
(e) The Parties shall use all reasonable efforts to obtain
insurance policies and bonds for the Surviving Bank that are comparable in
terms of both cost and coverage to those maintained by or with respect to
Chino Valley or its officers and directors prior to the Effective Time of
the Merger.
7.3 Preservation of Employment Relations Prior to Effective
Time. Fontana will consult with CVB and Chino Valley concerning, and
Fontana will use all reasonable efforts to keep available to CVB and Chino
Valley, the services of the officers and employees of Fontana prior to the
Effective Time of the Consolidation. Prior to the Effective Time of the
Consolidation, CVB or Chino Valley will notify Fontana of the employees CVB
desires to retain as employees of the Surviving Bank. Fontana agrees that,
following such notification, it will lay off, effective immediately prior
to the Effective Time of the Consolidation, all remaining employees.
Fontana agrees to pay such laid-off employees (other than persons who are
parties to Fontana Employment Agreements) an amount equal to two week's
salary at the employee's then current weekly rate, plus one additional
week's salary for each year of service with Fontana in consideration for a
release from the employee of all known and unknown claims against Fontana,
New Bank, the Consolidated Association, CVB, Chino Valley or the Surviving
Bank, or any of them. Fontana further agrees that all such employees will
be laid off in accordance with Fontana's existing policies and practices.
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CVB and Chino Valley will use their best efforts to offer employment with
the Surviving Bank to all qualified Fontana officers and employees.
Nothing in this Section 7.3, however, shall obligate CVB and Chino Valley
to retain or offer employment to any officer or employee of Fontana.
ARTICLE 8
CONDITIONS PRECEDENT TO CONTEMPLATED TRANSACTIONS
8.1 Conditions to Each Party's Obligation to Close. The
respective obligations of the Parties to consummate the transactions
contemplated hereby are subject to the satisfaction or waiver (where
permissible) at or prior to the Closing Date of each of the following:
(a) The Agreement, the Consolidation, and the other
transactions contemplated hereby shall have received all requisite
approvals of the shareholders of Fontana and New Bank.
(b) No Rule shall be outstanding or threatened by any
Governmental Entity which prohibits or restricts the effectuation of, or
threatens to invalidate or set aside, the Consolidation, unless counsel to
the Party against whom such action or proceeding was instituted or
threatened renders to the other Party hereto a favorable opinion that such
Rule is without merit.
(c) To the extent required by applicable Rule, all Consents
of any Governmental Entity, including, without limitation, those of the
FRB, the Comptroller, the FDIC and Superintendent, shall have been obtained
or granted for the Consolidation, and all applicable waiting periods under
all Rules shall have expired.
8.2 Additional Conditions to Obligations of CVB and Chino Valley
to Close. The obligations of CVB and Chino Valley to consummate the
transactions contemplated hereby are subject to the satisfaction or waiver
(where permissible) at or prior to the Closing Date of each of the
following conditions:
(a) No Rule shall be outstanding or threatened by any
Governmental Entity which prohibits or restricts the effectuation of, or
threatens to invalidate or set aside, the Merger or which would not permit
the business presently carried on by Fontana, CVB or Chino Valley to
continue unimpaired following the Closing Date.
(b) To the extent required by applicable Rule, all Consents
of any Governmental Entity, including, without limitation, those of the
FRB, the Comptroller, the FDIC and Superintendent, shall have been obtained
or granted for the Merger and the other transactions contemplated hereby,
and all applicable waiting periods under all Rules shall have expired.
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(c) All actions necessary to authorize the execution,
delivery and performance of the Agreement by Fontana and the consummation
of the Consolidation by Fontana shall have been duly and validly taken by
the Board of Directors and shareholders of Fontana.
(d) The representations and warranties of Fontana contained
in Article 4 of this Agreement shall have been true and correct (i) on the
date of this Agreement and (ii) at and as of the Effective Time of the
Consolidation as though all such representations and warranties had been
made on and as of the Effective Time of the Consolidation. CVB and Chino
Valley shall have received a certificate to that effect from Fontana dated
as of the Closing Date and executed on behalf of Fontana by its Chief
Executive Officer and Chief Financial Officer.
(e) Each of the covenants and agreements of Fontana
contained in this Agreement to be performed at or before the Effective Time
of the Consolidation shall have been so performed in all material respects.
CVB and Chino Valley shall have received a certificate to that effect from
Fontana dated as of the Closing Date and executed on behalf of Fontana by
its Chief Executive Officer and Chief Financial Officer.
(f) During the period from the date of the Original
Agreement to the Effective Time of the Consolidation, there shall not have
occurred any event related to the business, condition (financial or
otherwise), prospects, capitalization or properties of Fontana that has had
or could reasonably be expected to have a material adverse effect on the
business, financial condition, results of operations or prospects of
Fontana, whether or not such event, change or effect is reflected in any
amended or supplemented schedule of Fontana delivered after the date of the
Original Agreement. CVB and Chino Valley shall have received a certificate
to that effect from Fontana dated the Closing Date and signed by the Chief
Executive Officer and the Chief Financial Officer of Fontana.
(g) CVB and Chino Valley shall have received (i) the
Aggregate Purchase Price Certificate and the statements contained therein
shall be true and correct and (ii) a report of Deloitte & Touche confirming
its review of the procedures upon which the calculation of the Aggregate
Purchase Price, including the Adjusted Stockholders' Equity and Deferred
Loan Fees, are based.
(h) Fontana shall have delivered to CVB and Chino Valley a
written opinion of Horgan, Rosen, Beckham & Coren, or other legal counsel
acceptable to CVB and Chino Valley, dated the Closing Date in substantially
the form attached to this Agreement as Exhibit D.
(i) The Parties shall have obtained all Third Party
Consents contemplated by subsections (b), (c) and (d) of Section 7.1.
(j) CVB and Chino Valley shall have received evidence
satisfactory to it that all directors and Executive Officers of Fontana,
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have tendered their resignations, to be effective immediately after the
Effective Time of the Consolidation.
(k) Any Consents of a Governmental Entity which are
referred to in this Agreement and are necessary to consummate the
Consolidation, the Merger or any of the other transactions contemplated
hereby shall have been granted without the imposition, in the sole opinion
of CVB and Chino Valley, of materially burdensome conditions.
(l) There shall have been executed and delivered to CVB and
Chino Valley, contemporaneously with the execution and delivery of this
Agreement:
(i) Noncompetition Agreements with each of Fontana's
directors and Executive Officers; and
(ii) Shareholder's Agreements with each of the
directors of Fontana.
(m) CVB and Chino Valley shall have received from the
Internal Revenue Service favorable rulings to the effect that (i) the
Consolidation constitutes a "qualified stock purchase" under Section 338(a)
of the Code, (ii) the Merger qualifies as a tax-free reorganization under
Section 368(a)(1)(A) of the Code and (iii) the Consolidation and Merger
will not result in the recognition of gain or loss for federal income tax
purposes by Fontana, CVB, Chino Valley or the Surviving Bank. In lieu of
the foregoing rulings or any part thereof, the transactions contemplated in
this Agreement may be completed, at CVB's election, upon receipt of an
opinion from Manatt, Phelps, Phillips & Kantor, or other legal counsel
acceptable to it, to the foregoing effect.
(n) CVB shall have received satisfactory evidence that all
Fontana Options have been cancelled and terminated on terms and conditions
satisfactory to CVB.
(o) CVB and Chino Valley shall have received satisfactory
evidence that all Fontana Employment Agreements, the Fontana Banking
Services Agreement and the Fontana Computer Accounting Agreement have been
terminated on terms and conditions satisfactory to CVB and Chino Valley.
(p) The Fontana Lease shall have been extended on terms and
conditions satisfactory to CVB and Chino Valley.
(q) CVB and Chino Valley shall have received satisfactory
evidence that (i) all of Fontana's employee benefit plans, programs and
arrangements, including the Fontana Deferred Compensation Plan, have been
terminated on terms and conditions satisfactory to CVB and Chino Valley and
(ii) all benefits payable under such plans, programs and arrangements have
been paid.
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(r) CVB and Chino Valley shall have received satisfactory
assurances that the Surviving Bank shall have, on and after the Effective
Time of the Merger, insurance policies and bonds that are comparable in
terms of both coverage and cost to those maintained by or with respect to
Chino Valley or its officers and directors prior to the Effective Time of
the Merger.
(s) As of the Determination Date, Fontana's allowance for
loan losses shall not be less than $245,000. CVB and Chino Valley shall
have received a certificate to that effect from Fontana dated as of the
Closing Date and executed on behalf of Fontana by its Chief Executive
Officer and Chief Financial Officer.
(t) All material legal matters in connection with the
consummation of the transactions contemplated hereby, including the Merger,
shall have been approved by Manatt, Phelps, Phillips & Kantor or such other
counsel of CVB and Chino Valley.
8.3 Additional Conditions to Obligations of Fontana to Close.
The obligations of Fontana to consummate the transactions contemplated
hereby are subject to the satisfaction or waiver (where permissible) at or
prior to the Closing Date of each of the following conditions:
(a) All actions necessary to authorize the execution,
delivery and performance of the Agreement by CVB and Chino Valley and
consummation of the Consolidation by New Bank shall have been duly and
validly taken by the Board of Directors of CVB, Chino Valley and New Bank.
(b) The covenants and agreements of CVB to be performed at
or before the Effective Time of the Consolidation shall have been duly
performed in all material respects. Fontana shall have received a
certificate to that effect dated the Closing Date and executed on behalf of
CVB by the Chief Executive Officer and Chief Financial Officer of CVB.
(c) CVB shall have delivered to Fontana the written opinion
of Manatt, Phelps, Phillips & Kantor or other legal counsel reasonably
acceptable to Fontana, dated the Closing Date in substantially the form
attached to this Agreement as Exhibit E.
(d) Cash representing the Aggregate Purchase Price shall
have been deposited with the Exchange Agent at least one Business Day prior
to the Effective Time of the Consolidation.
(e) All material legal matters in connection with the
consummation of the Consolidation shall been approved by Horgan, Rosen,
Beckham & Coren, or such other counsel of Fontana.
ARTICLE 9
EMPLOYEE BENEFITS
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9.1 Termination of Fontana Employee Benefits Plans. Fontana
shall have terminated all employee benefit plans, whether or not included
on Schedule 4.18 prior to the Effective Time of the Consolidation and no
such employee benefit plans shall become plans of the Consolidated
Association or the Surviving Bank.
9.2 Fontana Employee Benefits. At and as of the Effective Time
of the Merger, the former officers and employees of Fontana who become
officers and employees of the Surviving Bank shall, in that capacity, be
entitled to participate in all employee benefits and benefit programs of
the Surviving Bank in accordance with the terms of such employee benefit
programs. Surviving Bank shall recognize such former officers' and
employees' service with Fontana for purposes of eligibility of benefits
under such benefit programs, except that no former officer or employee of
Fontana shall be deemed to have accrued any rights under the Chino Valley
Employee Profit Sharing Plan by reason of past employment by Fontana. Such
former employee or officer of Fontana shall commence accruing service for
eligibility and vesting purposes under such Profit Sharing Plan beginning
on the date he first performs an hour of service for the Surviving Bank.
ARTICLE 10
TERMINATION OF AGREEMENT; WAIVER OF CONDITIONS;
PAYMENT OF EXPENSES; FILINGS AND APPROVALS
10.1 Termination of Agreement.
Anything herein to the contrary notwithstanding, this Agreement,
the Consolidation and the Merger contemplated hereby may be terminated at
any time before the Effective Time of the Consolidation, whether before or
after approval by the shareholders of Fontana and New Bank as follows, and
in no other manner:
(a) Mutual Consent. By mutual consent of the Parties.
(b) General Conditions Not Met. By CVB and Chino Valley or
Fontana, if any conditions set forth in Section 8.1 shall not have been met
by February 28, 1993.
(c) Conditions. By CVB and Chino Valley, if any conditions
set forth in Section 8.2 shall not have been met, or by Fontana if any
conditions set forth in Section 8.3 shall not have been met, by February
28, 1993 or such earlier time as it becomes apparent that such condition
cannot be met.
(d) FRB, Comptroller, FDIC or Superintendent Approval. By
CVB and Chino Valley or Fontana, if the FRB or the Comptroller shall have
finally declined to approve the Consolidation or by CVB and Chino Valley if
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the FDIC or Superintendent shall have finally declined to approve the
Merger.
(e) Default.
(i) By CVB and Chino Valley, if Fontana should
materially default in the observance or in the due and timely performance
of any of its covenants and agreements herein contained (other than
Section 6.5) and such default shall not have been fully cured within 20
Business Days after written notice specifying the alleged default.
(ii) By Fontana, if CVB or Chino Valley should
materially default in the observance or in the due and timely performance
of any of their covenants and agreements herein contained and such default
shall not have been fully cured within 20 Business Days after written
notice specifying the alleged default.
(f) Alternative Transactions.
(i) By CVB and Chino Valley, at any time, if Fontana
violates the covenants set forth in subsections (a), (b) or (c) of
Section 6.5.
(ii) By CVB and Chino Valley, at any time, if Fontana
has received an unsolicited offer from a Person other than CVB and Chino
Valley to effect an Alternative Transaction and takes any action referred
to in subsection (b) of Section 6.5 after the Board of Directors of Fontana
is advised in writing by outside legal counsel that in the exercise of its
fiduciary duty such action should be taken.
(g) Withdrawal of Board Recommendation. By CVB and Chino
Valley, at any time, if the Board of Directors of Fontana withdraws its
recommendation pursuant to Section 6.7.
(h) Shareholder Non-Approval. By CVB and Chino Valley, at
any time, if the approval of the shareholders of Fontana to all of the
matters referred to in Section 6.7 is not obtained prior to December 15,
1992.
(i) Expiration Date. By CVB and Chino Valley or Fontana if
the Closing has not occurred by February 28, 1993, unless such date is
extended by mutual agreement of the Parties (the "Expiration Date").
10.2 Effect of Termination; Liquidated Damages; Expenses.
(a) No termination of this Agreement under this Article 10
for any reason or in any manner shall release, or be construed as so
releasing, any Party from its obligations under subsection (b) of this
Section 10.2, or Sections 11.8, 11.9 and 11.11 or from any liability or
damage to any other Party hereto arising out of, in connection with or
129
otherwise relating to, directly or indirectly, said Party's material
breach, default or failure in performance of any of its covenants,
agreements, duties or obligations arising hereunder; provided, however,
that, if such termination shall result from (i) an election to terminate by
CVB and Chino Valley pursuant to subsection (f)(i) of Section 10.1, Fontana
shall pay to CVB and Chino Valley as reasonable and full liquidated damages
and reasonable compensation for the loss sustained thereby and not as a
penalty or forfeiture, the sum of $500,000, within ten Business Days
following the notice that such violation has occurred and (ii) an election
to terminate by CVB and Chino Valley pursuant to subsections (f)(ii) or (g)
of Section 10.1, Fontana shall pay to CVB and Chino Valley, as reasonable
and full liquidated damages and reasonable compensation for the loss
sustained thereby and not as a penalty or forfeiture, the sum of $250,000
plus CVB and Chino Valley's out-of-pocket expenses in connection with this
Agreement and the transactions contemplated hereby (including, but not
limited to, attorney's fees) up to $100,000 within ten Business Days
following notice of such election; and provided, further, that if such
termination shall result from CVB's willful failure to cause New Bank to
consummate the Consolidation on or before the Expiration Date,
notwithstanding each and every condition to its obligation to cause New
Bank to consummate the Consolidation having been satisfied prior to that
date, CVB shall pay to Fontana, (provided Fontana is not otherwise in
breach of this Agreement), as full liquidated damages and reasonable
compensation for the loss sustained thereby and not as a penalty or
forfeiture, the sum of $150,000 within ten Business Days following notice
thereof.
Any claim for reimbursement of out-of-pocket expenses pursuant to this
Section 10.2(a) shall be subject to reasonable documentation.
(b) Except as otherwise provided in this Section 10.2, all
legal and other costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by the
Party incurring such costs and expenses as indicated below:
(i) all fees and disbursements of their counsel,
consultants and accountants shall be paid by CVB and Chino Valley;
(ii) all fees and disbursements of its counsel,
consultants and accountants shall be paid by Fontana;
(iii) all fees and out-of-pocket expenses in
connection with obtaining approval by shareholders of Fontana of the
matters referred to in Section 6.7, including any proxy solicitation costs,
shall be paid by Fontana; and
(iv) all filing fees in connection with securing
approval of the transactions contemplated in this Agreement by the
Comptroller, the FRB, the FDIC and the Superintendent shall be paid by CVB
and Chino Valley.
130
ARTICLE 11
GENERAL
11.1 Amendments. To the fullest extent permitted by law, this
Agreement and any schedule or exhibit attached hereto may be amended by
agreement in writing of the Parties hereto at any time prior to the
Effective Time of the Consolidation, whether before or after approval of
this Agreement by the shareholders of Fontana.
11.2 Schedules; Exhibits; Integration. Each schedule, exhibit
and letter delivered pursuant to this Agreement shall be in writing and
shall constitute a part of the Agreement, although schedules and letters
need not be attached to each copy of this Agreement. This Agreement,
together with such schedules, exhibits, and letters, constitutes the entire
agreement between the Parties pertaining to the subject matter hereof and
supersedes all prior agreements and understandings of the Parties in
connection therewith. Any representation or warranty made as of the Closing
Date shall be deemed to have been made with respect to the schedules,
exhibits and letters provided as of the date of this Agreement and not as
amended and supplemented pursuant to Sections 4.28 or 6.6 on or before such
date.
11.3 Third Parties. Each Party intends that this Agreement
shall not benefit or create any right or cause of action in any Person
other than the Parties hereto.
11.4 Governing Law. This Agreement and the legal relations
between the Parties shall be governed by and construed in accordance with
the laws of the State of California applicable to contracts between
California parties made and performed in such state except that the
provisions of this Agreement with respect to the Consolidation and the
Merger shall also be governed by United States law.
11.5 No Assignment. Neither this Agreement nor any rights,
duties or obligations hereunder shall be assignable by the Parties, in
whole or in part. Any attempted assignment in violation of this
prohibition shall be null and void. Subject to the foregoing, all of the
terms and provisions hereof shall be binding upon, and inure to the benefit
of, the successors and assigns of the Parties hereto.
11.6 Headings. The descriptive headings of the several
Articles, Sections and subsections of this Agreement are inserted for
convenience only and do not constitute a part of this Agreement.
11.7 Counterparts. This Agreement and any exhibit hereto may be
executed in one or more counterparts, all of which shall be considered one
and the same agreement and shall become effective when one or more
131
counterparts have been signed by each Party hereto and delivered to each
Party hereto.
11.8 Publicity. The Parties shall coordinate all publicity
relating to the transactions contemplated by this Agreement, and no Party
shall issue any press release, publicity statement, shareholder
communication or other public notice relating to this Agreement or any of
the transactions contemplated hereby without obtaining the prior consent of
the Parties except to the extent that independent legal counsel to the
Parties, as the case may be, shall deliver a written opinion to the Parties
that a particular action is required by applicable Rules.
11.9 Confidentiality. All Confidential Information disclosed
heretofore or hereafter by any Party to this Agreement to any other Party
to this Agreement shall be kept confidential by such other Party and shall
not be used by such other Party otherwise than as herein contemplated,
except to the extent that (a) it is necessary or appropriate to disclose to
the FRB, the Comptroller, the Superintendent, the FDIC or any other
Governmental Entity having jurisdiction over Fontana or CVB and Chino
Valley or as may otherwise be required by Rule (any disclosure of
Confidential Information to a Governmental Entity shall be accompanied by a
request that such Governmental Entity preserve the confidentiality of such
Confidential Information); or (b) to the extent such duty as to
confidentiality is waived by the other Party. Such obligation as to
confidentiality and non-use shall survive the termination of this Agreement
pursuant to Article 10. In the event of such termination and on request of
another Party, each Party shall use all reasonable efforts to (y) return to
the other Parties all documents (and reproductions thereof) received from
such other Parties that contain Confidential Information (and, in the case
of reproductions, all such reproductions made by the receiving Party); and
(z) destroy the originals and all copies of any analyses, computations,
studies or other documents prepared for the internal use of such Party that
include Confidential Information.
11.10 Waiver. No waiver of any term, provision or condition of
this Agreement, whether by conduct or otherwise, in any one or more
instances, shall be deemed to be or construed as a further or continuing
waiver of any such term, provision or condition of this Agreement.
11.11 Notices. Any notice or communication required or
permitted hereunder, including, without limitation, supplemental schedules
required under Section 6.6, shall be deemed to have been given if in
writing and (a) delivered in person, (b) delivered by confirmed facsimile
transmission or (c) mailed by certified or registered mail, postage
prepaid, with return receipt requested, addressed as follows:
If to CVB and Chino Valley addressed to:
CVB Financial Corp.
701 N. Haven Avenue, Suite 350
132
Ontario, California 91764
Attention: D. Linn Wiley
Telecopier No.: (714) 980-5232
With a copy addressed to:
Manatt, Phelps, Phillips & Kantor
11355 West Olympic Boulevard
Los Angeles, California 90064
Attn: William T. Quicksilver, Esq.
Telecopier No.: (310) 312-4224
If to Fontana addressed to:
Fontana First National Bank
9244 Sierra Avenue
Fontana, California 92334
Attention: Fred O. Scarsella
Telecopier No.: (714) 350-0587
With a copy addressed to:
Horgan, Rosen, Beckham & Coren
3900 W. Alameda
Suite 2000
Toluca Lake, California 91505
Attention: Gary Horgan
Telecopier No.: (818) 955-7300
or at such other address and to the attention of such other Person as a
Party may give notice to the others in accordance with this Section 11.11.
Any such notice or communication shall be deemed received on the date
delivered personally or delivered by confirmed facsimile transmission or on
the third Business Day after it was sent by certified or registered mail,
postage prepaid with return receipt requested.
11.12 Knowledge. Whenever any statement herein or in any
Schedule, certificate or other documents delivered to any Party pursuant to
this Agreement is made "to the knowledge" or "to the best knowledge" of any
Party or another Person, such Party or other Person shall make such
statement only after conducting an investigation reasonable under the
circumstances of the subject matter thereof, and each such statement shall
constitute a representation that such investigation has been conducted.
133
IN WITNESS WHEREOF, the parties to this Agreement have duly
executed this Agreement as of the day and year first above written.
CVB FINANCIAL CORP.
By /s/ D. Linn Wiley
President and Chief Executive Officer
ATTEST:
Secretary /s/ Donna Marchesi
CHINO VALLEY BANK
By /s/ D. Linn Wiley
President and Chief Executive Officer
ATTEST:
Secretary /s/ Donna Marchesi
FONTANA FIRST NATIONAL BANK
By /s/ Fred O. Scharsella
President and Chief Executive Officer
ATTEST:
Secretary /s/ Tamara J. Wolfinbarger
134
Table of Contents
Page
1 DEFINITIONS
1.1 Definitions
2 THE CONSOLIDATION AND RELATED MATTERS
2.1 The Consolidation.
2.2 Effect of the Consolidation.
2.3 Dissenting Shareholders.
2.4 The Aggregate Purchase Price and Per Share Price
2.5 Delivery of Cash.
2.6 Name of Consolidated Association.
2.7 Directors and Officers of Consolidated Association.
2.8 Noncompetition Agreements
2.9 Shareholder's Agreements
3 THE CLOSING 11
3.1 Closing Date
3.2 Execution of Agreement to Consolidate
3.3 Execution of Agreement of Merger
3.4 Documents to be Delivered
4 REPRESENTATIONS AND WARRANTIES OF FONTANA
4.1 Organization, Standing and Power
4.2 Capitalization
4.3 Subsidiaries
4.4 Financial Statements
4.5 No Material Liabilities
4.6 Authority of Fontana
4.7 Reserved
4.8 No Conflicts; Defaults
4.9 Reports and Filings
4.10 Tax and Other Returns and Reports
4.11 Contracts
4.12 Title to Property
4.13 Litigation
4.14 Certain Adverse Changes
4.15 Minute Books
4.16 Accounting Records; Data Processing
4.17 Insurance
4.18 Employee Benefit Plans and Employment and Labor
Contracts.
4.19 Investments
4.20 Broker's or Finder's Fees
135
4.21 Compliance with Rules
4.22 Certain Interests
4.23 Extensions of Credit
4.24 Operating Losses
4.25 Powers of Attorney
4.26 Offices and ATMs
4.27 Disclosure Documents and Applications
4.28 Accuracy and Currentness of Information Furnished
4.29 Effective Date of Representations, Warranties, Covenants
and Agreements
5 REPRESENTATIONS AND WARRANTIES OF CVB AND CHINO VALLEY
5.1 Organization, Standing and Power of CVB and Chino Valley
5.2 Authority of CVB and Chino Valley
5.3 No Conflicts; Defaults
5.4 Accuracy of Information Furnished
5.5 Adequacy of Capital
5.6 Compliance with Rules
5.7 Authority of New Bank
6 CONDUCT AND TRANSACTIONS PRIOR TO EFFECTIVE TIME OF MERGER
6.1 Access to Information
6.2 Material Adverse Changes; Reports; Financial Statements;
Filings
6.3 Limitation on Fontana's Conduct Prior to Closing
6.4 Certain Loans and Other Extension of Credit
6.5 No Solicitation, etc
6.6 Schedules of Fontana
6.7 Shareholder Approval
6.8 Compliance with Rules
6.9 Disposition of Employee Benefit Plans
6.10 Cancellation of Fontana Options
6.11 Termination of Fontana Employment Agreements
6.12 Extension of Lease
6.13 Termination of Certain Agreements
6.14 Execute Agreement to Consolidate
7 FURTHER COVENANTS OF THE PARTIES
7.1 Execution of Agreement to Consolidate
7.2 Filings, Consents and Insurance
7.3 Preservation of Employment Relations Prior to Effective
Time
8 CONDITIONS PRECEDENT TO CONTEMPLATED TRANSACTIONS
8.1 Conditions to Each Party's Obligation to Close
136
8.2 Additional Conditions to Obligations of CVB and Chino
Valley to close
8.3 Additional Conditions to Obligations of Fontana to Close
9 EMPLOYEE BENEFITS
9.1 Termination of Fontana Employee Benefits Plans
9.2 Fontana Employee Benefits
10 TERMINATION OF AGREEMENT; WAIVER OF CONDITIONS;
PAYMENT OF EXPENSES; FILINGS AND APPROVALS
10.1 Termination of Agreement
10.2 Effect of Termination; Liquidated Damages; Expenses
11 GENERAL
11.1 Amendments
11.2 Schedules; Exhibits; Integration
11.3 Third Parties
11.4 Governing Law
11.5 No Assignment
11.6 Headings
11.7 Counterparts
11.8 Publicity
11.9 Confidentiality
11.10 Waiver
11.11 Notices
11.12 Knowledge
137
EXHIBITS
A-1 Agreement to Consolidate
A-2 Agreement of Merger
B-1 Form of Noncompetition Agreement (Directors)
B-2 Form of Noncompetition Agreement (Officers)
C Form of Shareholder's Agreement
D Form of Opinion of Counsel of Fontana
E Form of Opinion of Counsel of CVB and Chino Valley
SCHEDULES
Schedule 4.2 Fontana Options
Schedule 4.5 Material Liabilities
Schedule 4.8 Conflicts, Defaults and Required Consents
Schedule 4.10 Taxes
Schedule 4.11 Material Contracts
Schedule 4.12 Real Property
Schedule 4.13 Litigation and Regulatory Proceedings
Schedule 4.16 Data Processing
Schedule 4.17 Insurance
Schedule 4.18 Employee Benefit Plans; Employment and Labor Contracts
Schedule 4.19 Investments
Schedule 4.22 Certain Interests
Schedule 4.23 Classified Assets
Schedule 4.24 Operating Losses
Schedule 4.25 Powers of Attorney
Schedule 4.26 Offices and ATMs
138
EXHIBIT A-1
AGREEMENT TO CONSOLIDATE
between
CVB INTERIM STATE BANK
and
FONTANA FIRST NATIONAL BANK
Under the charter of
Fontana First National Bank
and
Under the title of
Fontana First National Bank
THIS AGREEMENT TO CONSOLIDATE made between CVB INTERIM STATE BANK
(hereinafter referred to as "New Bank"), a banking corporation organized
under the laws of the State of California, being located at 9244 Sierra
Avenue in the City of Fontana, County of San Bernardino, State of
California, with initial capital of $ , divided into 40,000
shares of common stock ("New Bank Stock"), each of no par value, and
FONTANA FIRST NATIONAL BANK (hereinafter referred to as "Fontana"), a
banking association organized under the laws of the United States, being
located at 9244 Sierra Avenue, in the City of Fontana, County of San
Bernardino, in the State of California, with capital of $1,728,500, divided
into 345,700 shares of common stock ("Fontana Stock"), each of $5.00 par
value, surplus of $ and undivided profits, including capital
reserves, of $ , as of September 30, 1 992, 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 by and in
accordance with the provisions of the Act of November 7, 1 918, as amended
(1 2 U.S.C., Section 21 5), witnesseth as follows:
Section 1 . New Bank and Fontana (hereinafter referred to as the
"Consolidating Banks") shall be consolidated under the charter of Fontana.
The closing of the transactions contemplated hereby (the "Closing") shall
take place at the offices of Manatt, Phelps, Phillips & Kantor, 1 1 355 W.
Olympic Boulevard, Los Angeles, California on the date fixed therefor
pursuant to Section 3.1 of the Reorganization Agreement (as defined below).
Section 2. The name of the consolidated association (hereinafter
referred to as the "Consolidated Association") shall be Fontana First
National Bank."
Section 3. The business of the Consolidated Association shall be that
of a national banking association. This business shall be conducted by the
139
Consolidated Association at its main office which shall be located at 9244
Sierra Avenue, Fontana, California.
Section 4. The amount of capital stock of the Consolidated Association
shall be $200,000.00, divided into 40,000 shares of common stock, each of $
5.00 par value, and at the time the consolidation shall become effective as
specified in the approval to be issued
140
by the Comptroller of the Currency, (the "Effective Time of the
Consolidation"), the Consolidated Association shall have a surplus of
$40,000 and undivided profits, including capital reserves, which when
combined with the Consolidated Association's capital and surplus will be
equal to the combined capital structures of the Consolidating Banks as
stated in the preamble of this Agreement, adjusted, however, for normal
earnings and expenses between September 30, 1 992 and the Effective Time of
the Consolidation.
Section 5. All assets of each of the Consolidating Banks, as they
exist at the Effective Time of the Consolidation, shall pass to and vest in
the Consolidated Association without any conveyance or other transfer. The
Consolidated Association shall be responsible for all of the liabilities of
every kind and description of each of the Consolidating Banks existing as
of the Effective Time of the Consolidation.
Section 6. Upon and as of the Effective Time of the Consolidation, and
by reason of the consolidation becoming effective, (i) each share of
Fontana Stock issued and outstanding immediately prior to the Effective
Time of the Consolidation, except for shares as to which dissenters' rights
are perfected pursuant to 1 2 U.S.C. section 21 5 ("Perfected Dissenting
Shares"), shall be automatically converted into the right to receive an
amount equal to the quotient obtained by dividing (A) the Aggregate
Purchase Price determined in accordance with the First Amended and Restated
Agreement and Plan of Reorganization (the "Reorganization Agreement") dated
as of October -, 1 992 by and between CVB Financial Corp., Chino Valley
Bank and Fontana First National Bank, by (B) the total number of shares of
Fontana Stock outstanding immediately prior to the Effective Time of the
Consolidation (including Perfected Dissenting Shares) and (ii) each share
of the New Bank Stock issued and outstanding immediately prior to the
Effective Time of the Consolidation, except for Perfected Dissenting
Shares, shall be automatically converted into one share of the common
stock, $5.00 par value, of the Consolidated Association.
Section 7. Neither of the Consolidating Banks shall declare or pay any
dividend to its shareholders between the date of this Agreement and the
time at which the consolidation shall be effective, or dispose of any of
its assets in any other manner except in the normal course of business and
for adequate value.
Section 8. The following named persons shall constitute the original
board of directors of the Consolidated Association until the next annual
meeting of its shareholders or until such time as their successors have
been elected and qualify:
George A. Borba Charles M. Magistro
John A. Borba John Vander Schaaf
Ronald 0. Kruse D. Linn Wiley
John J. Lo Porto
141
Section 9. On and after the Effective Time of the Consolidation the
articles of association of the Consolidated Association shall read in their
entirety as set forth in Exhibit I hereto.
142
Section 1 0. The obligations of New Bank to proceed with the Closing
are subject to the satisfaction at or prior to the Closing of all of the
conditions to the obligations of CVB Financial Corp. under the
Reorganization Agreement, any one or more of which, to the extent it is or
they are 'waivable, may be waived, in whole or in part, by New Bank.
Section 1 1. The obligations of Fontana to proceed with the Closing
are subject to the satisfaction at or prior to the Closing of all of the
conditions to the obligations of Fontana under the Reorganization
Agreement, any one or more of which, to the extent it is or they are
waivable, may be waived, in whole or in part, by Fontana.
Section 1 2. Notwithstanding any provision to the contrary herein, and
notwithstanding the fact that the stockholders of Fontana and New Bank may
have ratified and confirmed this Agreement, this Agreement shall
automatically be terminated and of no further force and effect if, prior to
the Effective Time of the Consolidation, the Reorganization Agreement is
terminated in accordance with the terms thereof.
Section 1 3. This Agreement shall be ratified and confirmed by the
affirmative vote of shareholders of each of the Consolidating Banks owning
at least two-thirds of its capital stock outstanding, at a meeting to be
held on the call of the directors; and the consolidation shall become
effective immediately prior to the effective time of the merger of the
Consolidated Association with and into Chino Valley Bank on the date
specified in an approval of consolidation to be issued by the Comptroller
of the Currency of the United States.
Section 1 4. New Bank and Fontana agree that solely for the purpose of
completing the merger of the Consolidated Association with and into Chino
Valley Bank or obtaining any necessary regulatory approval therefor or
approving, signing, ratifying or confirming any related merger agreement or
conferring any necessary or appropriate corporate authority related thereto
or taking any other corporate act or satisfying any other corporate
requirement necessary therefor, the board of directors of the Consolidated
Association, as it will be constituted upon the effectiveness of the
consolidation, may act as such in advance of such effectiveness, and CVB
Financial Corp., the shareholder of the Consolidated Association upon such
effectiveness, may act as such in advance of such effectiveness.
143
WITNESS the signatures and seals of said Consolidating Banks, each
hereunto set by its president or a vice president and attested by its
cashier or secretary, pursuant to a resolution of its board of directors,
acting by a majority thereof, and witness the signature hereto of a
majority of each of said boards of directors:
[SEAL]
Attest:
CVB INTERIM STATE BANK
By:
D. Linn Wiley
President
Robert J. Schurheck
Chief Financial Officer
Directors of CVB Interim State Bank
George A. Borba John J. Lo Porto
John A. Borba Charles M. Magistro
Ronald 0. Kruse
D. Linn Wiley
John Vander Schaaf
144
[SEAL]
Attest:
Roger J. Harris Cashier
G. Gary Clinard
Howard Edmiston
Anthony N. Finazzo
William G. Kellen
FONTANA FIRST NATIONAL BANK
By:
Fred 0. Scarsella President
Directors of Fontana First National Bank
Tamara Wolfinbarger
Dr. William F. Kragness
Dr. Allan G. Milew
145
Eugene L. Milew
Kenneth L. Roohr
146
EXHIBIT A-2
AGREEMENT OF MERGER
THIS AGREEMENT OF MERGER (the "Merger Agreement") is made and entered
into as of this day of , 1 992, by and between Chino
Valley Bank ("Chino Valley"), a California banking corporation, and Fontana
First National Bank ("Fontana"), with reference to the following facts:
RECITALS
1 .Fontana is a national banking association duly organized, validly
existing and in good standing under the laws of the United States and
is authorized by the Comptroller of the Currency to conduct a general
banking business, with authorized capital of shares of no par
value common stock ("Fontana Stock") of which, on the date hereof,
there are shares issued and outstanding.
2.Chino Valley is a corporation duly organized, validly existing and
in good standing under the laws of the State of California, with
authorized capital of shares of common stock ("Chino
Valley Stock") of which, on the date hereof, there are shares
issued and outstanding.
3.The respective Boards of Directors of Chino Valley and Fontana deem
it desirable and in the best interests of their respective
corporations and stockholders that Fontana be merged with and into the
Chino Valley as provided in this Merger Agreement pursuant to the laws
of the State of California and that Chino Valley be the surviving
corporation ("Surviving Bank").
NOW THEREFORE, in consideration of the premises and of the mutual
covenants and agreements herein set forth and for the purpose of
prescribing the terms and conditions of such Merger, the parties hereto
agree as follows:
ARTICLE I
THE MERGER
Upon consummation of the Merger at the Effective Time (as defined in
Article IX hereof), Fontana shall be merged with and into Chino Valley
which shall thereupon be the Surviving Bank, and the separate corporate
existence of Fontana shall cease.
147
ARTICLE 11
NAME
The name of the Surviving Bank shall be "Chino Valley Bank."
ARTICLE Ill
ARTICLES OF INCORPORATION
The Articles of Incorporation of Chino Valley as in effect
immediately prior to the Effective Time shall, at and after the Effective
Time, continue to be the Articles of Incorporation of the Surviving Bank.
ARTICLE IV
BYLAWS
The Bylaws of Chino Valley as in effect immediately prior to the
Effective Time shall, at and after the Effective Time, continue to be the
Bylaws of the Surviving Bank.
ARTICLE V
DIRECTORS
The Board of Directors of Chino Valley immediately prior to
the Effective Time, shall, at and after the Effective Time, serve as
the Directors of the Surviving Bank until its next annual meeting of
shareholders or until such time as their successors have been elected
and qualified.
ARTICLE Vi
RIGHTS AND DUTIES OF SURVIVING BANK
At and after the Effective Time, all rights, privileges,
powers and franchises and all property and assets of every kind and
description of Chino Valley and Fontana shall be vested in and be held
and enjoyed by the Surviving Bank, without further act or deed, and
all the estates and interests of every kind of Chino Valley and
Fontana, including all debts due to either of them, shall be as
effectively the property of the Surviving Bank as they were of Chino
Valley and Fontana, and the title to any real estate vested by deed or
otherwise in either Chino Valley or Fontana shall not revert or be in
any way impaired by reason of the Merger; and all rights of creditors
and liens upon any property of Chino Valley and Fontana shall be
preserved unimpaired and all debts, liabilities and duties of Chino
Valley and Fontana shall be debts, liabilities and duties of the
Surviving Bank and may be enforced against it to the same extent as if
said debts, liabilities and duties had been incurred or contracted by
it.
ARTICLE VII
CONVERSION OF SHARES
148
In and by virtue of the Merger and at the Effective Time,
pursuant to this Merger Agreement, the shares of Chino Valley Stock
and Fontana Stock outstanding at the Effective Time shall be converted
as follows:
149
(a) Effect on Chino Valley Stock. Each share of Chino Valley
Stock issued and outstanding immediately prior to the Effective Time shall,
on and after the Effective Time, be converted into and for all purposes be
deemed to represent one share of common stock of the Surviving Bank
("Surviving Bank Stock").
(b) Effect on Fontana Stock. Each share of Fontana Stock issued
and outstanding immediately prior to the Effective Time shall be
automatically cancelled and cease to be an issued and outstanding share of
Fontana Stock.
ARTICLE VIII
FURTHER ACTION
The parties hereto shall execute and deliver, or cause to be executed
and delivered, all such deeds and other instruments, and will take or cause
to be taken all further or other action as they may deem necessary or
desirable, in order to vest in and confirm to the Surviving Bank title to
and possession of all of Chino Valley's and Fontana's property, rights,
privileges, powers and franchises hereunder, and otherwise to carry out the
intent and purposes of this Merger Agreement.
ARTICLE IX
EFFECTIVE TIME
The Merger will become effective upon the filing, in accordance with
Section 2094 of the California Financial Code, of a copy of this Merger
Agreement (bearing the certification of the Secretary of State of the State
of California) and all other requisite accompanying certificates in the
office of the California Superintendent of Banks (the "Superintendent").
The date and time of such filing with the Superintendent is referred to
herein as to the "Effective Time".
ARTICLE Xi
SUCCESSORS AND ASSIGNS
This Merger Agreement shall be binding upon and enforceable by the
parties hereto and their respective successors, assigns and transferees,
but this Merger Agreement may not be assigned by either party without the
written consent of the other.
ARTICLE XII
GOVERNING LAW
This Merger Agreement has been executed in the State of California,
and the laws of the State of California shall govern the validity and
interpretation hereof and the performance by the parties hereto.
ARTICLE XIII
TERMINATION
150
This Merger Agreement may, by the mutual consent and action of the
Boards of Directors of Chino Valley and Fontana, be abandoned at any time
before or after approval
151
thereof by the shareholders of Chino Valley and Fontana, but not later than
the filing of this Merger Agreement with the Superintendent pursuant to
Section 2094 of the California Financial Code.
IN WITNESS WHEREOF, Chino Valleyand Fontana, pursuant to the approval
and authority duly given by resolution of their respective Board of
Directors, have caused this Merger Agreement to be signed by their
respective Presidents and Secretaries on the day and year first above
written.
CHINO VALLEY BANK
By:
President
Secretary
FONTANA FIRST NATIONAL BANK
By:
President
Secretary
152
EXHIBIT B-1
FIRST AMENDED AND RESTATED NONCOMPETITION AGREEMENT
THIS FIRST AMENDED AND RESTATED NONCOMPETITION AGREEMENT
("Agreement"), dated as of October ___, 1992, is entered into by and
between CVB Financial Corp., a California corporation ("CVB"), Chino Valley
Bank, a California state chartered bank ("Chino Valley"), and
_______________ ("Shareholder").
R E C I T A L S
A. CVB, Chino Valley and Fontana First National Bank, a national
banking association ("Fontana") entered into that certain Agreement and
Plan of Reorganization, dated as of May 13, 1992 (the "Original
Reorganization Agreement").
B. Shareholder is a beneficial shareholder, director and/or
Executive Officer of Fontana.
C. As an inducement to CVB and Chino Valley to enter into the
Original Reorganization Agreement, Shareholder agreed to refrain from
competing with, using trade secrets or soliciting customers or employees of
Fontana or any of its successors (the "Original Noncompetition Agreement").
D. CVB, Chino Valley and Fontana have agreed to amend certain of
the terms and provisions of and, as amended, to restate the Original
Reorganization Agreement (as amended and restated, the "Reorganization
Agreement").
E. The parties now desire to amend certain of the terms and
provisions of the Original Noncompetition Agreement to conform to the
amendments to the Reorganization Agreement.
F. Except as otherwise provided herein, each capitalized term
shall have the meaning given to such term in the Reorganization Agreement.
As used in this Agreement, the following terms shall have the meanings set
forth:
"Customer" shall mean any Person with whom Fontana has an existing
relationship for Financial Services (as defined below) from the date of the
Original Reorganization Agreement until immediately prior to the Effective
Time of the Consolidation.
"Enterprises" shall mean any of the businesses conducted by Fontana at
any time from the date of the Original Reorganization Agreement until
immediately prior to the Effective Time of the Consolidation.
153
"Financial Institution" shall mean a "depository institution" as that
term is defined in 12 C.F.R. Section 348.2, and any parent, subsidiary or
affiliate thereof.
"Financial Services" shall mean the origination, purchasing, selling
and servicing of commercial, real estate, residential, construction and
consumer loans and the solicitation and provision of deposit services and
services related thereto.
"Prospective Customer" shall mean any Person with whom Fontana has
actively pursued a relationship for Financial Services at any time between
the date of the Original Reorganization Agreement and the Effective Time of
the Merger.
"Trade Secrets" shall mean:
(a) All secrets and other confidential information, ideas,
knowledge, know-how, techniques, secret processes, improvements,
discoveries, methods, inventions, sales, financial information, Customers,
lists of Customers and Prospective Customers, plans, concepts, strategies
or products, as well as all documents, reports, drawings, designs, plans
and proposals otherwise pertaining to same or relating to the business and
properties of Fontana of which Shareholder has acquired, or may hereafter
acquire, knowledge and possession as a shareholder, director, officer or
employee or as a result of the transactions contemplated by the
Reorganization Agreement.
(b) Notwithstanding any other provisions of this Agreement to
the contrary, "Trade Secrets" shall not include any (i) information which
is or has become available from a third party who learned the information
independently and is not or was not bound by a confidentiality agreement
with respect to such information; or (ii) information readily ascertainable
from public, trade or other nonconfidential sources (other than as a
result, directly or indirectly, of a disclosure or other dissemination in
contravention of a confidentiality agreement).
NOW, THEREFORE, in consideration of the premises and respective
representations, warranties and covenants, agreements and conditions
contained herein and in the Reorganization Agreement, and intending to be
legally bound hereby, CVB and Chino Valley and Shareholder agree as
follows:
NOTE: Paragraph definition put in for legal numbering combined with
regular numbering. MUST PUT IN PARAGRAPH LEVEL. Definition is as follows:
Level: 1 2 3 4 5 6 7
Style: 4 5 3 1 2 4 3
Punct: 1 0 3 3 3 3 1
Ex: I 1.1 (a) (i) (A) (1) a.ARTICLE I
ACKNOWLEDGEMENTS BY SHAREHOLDER
154
Shareholder acknowledges that:
(a) CVB and Chino Valley would not enter into the
Reorganization Agreement unless Shareholder agrees not to enter into an
activity that is competitive with or similar to the Enterprises as provided
in this Agreement and that, accordingly, this Agreement is a material
inducement for CVB and Chino Valley to enter into and to carry out the
terms of the Reorganization Agreement. Accordingly, Shareholder expressly
acknowledges that he is entering into this Agreement to induce CVB and
Chino Valley to enter into and carry out the terms of the Reorganization
Agreement and to cause New Bank to enter into the Agreement to Consolidate
pursuant thereto.
(b) By virtue of his position with Fontana, Shareholder has
developed considerable expertise in the business operations of Fontana and
has access to Trade Secrets. Shareholder recognizes that CVB and Chino
Valley would be irreparably damaged, and its substantial investment in
Fontana materially impaired, if Shareholder were to enter into an activity
that is competitive with or similar to the Enterprises in violation of the
terms of this Agreement, if Shareholder were to disclose or make
unauthorized use of any Trade Secrets or if Shareholder were to solicit
Customers, Prospective Customers or employees of Fontana. Accordingly,
Shareholder expressly acknowledges that he is voluntarily entering into
this Agreement and that the terms and conditions of this Agreement are fair
and reasonable to Shareholder in all respects.
ARTICLE II
NONCOMPETITION
2.1 Noncompetition. For a period of two years after the Effective
Time of the Consolidation, Shareholder shall not, directly or indirectly,
without the prior written consent of CVB and Chino Valley or the Surviving
Bank (i) own, manage, operate, control, finance or participate in the
ownership, management, operation, control or financing of, or be connected
as an officer, director, employee, partner, principal, agent,
representative, consultant or otherwise with, any business or enterprise
engaged in any business which is competitive with or similar to the
Enterprises within the County of San Bernardino, State of California (the
"Territory"); (ii) engage in any other manner, within the Territory, in any
business that is competitive with or similar to the Enterprises; or (iii)
on behalf of any Financial Institution, solicit or aid in the solicitation
of Customers or Prospective Customers for Financial Services or induce or
attempt to induce any Person who is a Customer, Prospective Customer,
supplier, distributor, officer or employee of Fontana immediately prior to
the Effective Time of the Consolidation to terminate such person's
relationships with, or to take any action that would be disadvantageous to
CVB and Chino Valley or the Surviving Bank. Notwithstanding the above,
Shareholder shall not be deemed to be engaged directly or indirectly in any
business in contravention of paragraphs (i) or (ii) above, if (y)
Shareholder participates in any such business solely (A) as an officer or
155
director of the Surviving Bank or (B) as a passive investor in up to 5% of
the equity securities or 10% of the debt securities of a company or
partnership, provided such securities are publicly traded or (z)
Shareholder is employed by a business or enterprise that is engaged
primarily in a business other than that which is competitive with or
similar to the Enterprises and Shareholder does not apply his expertise at
such business or enterprise to that part of such business or enterprise
that is competitive with or similar to the Business or the Enterprises.
2.2 Trade Secrets. Without limiting the generality of the
foregoing and at all times after the date hereof, other than for the
benefit of Fontana and, after the Effective Time of the Consolidation,
other than for the benefit of the Surviving Bank, Shareholder (i) shall
make no use of the Trade Secrets, or any other part thereof, (ii) shall not
disclose the Trade Secrets, or any part thereof, to any other Person, and
(iii) shall deliver, on and after the Effective Time of the Consolidation,
all documents, reports, drawings, designs, plans, proposals and other
tangible evidence of Trade Secrets, now possessed or hereafter acquired by
Shareholder, to the Surviving Bank.
2.3 Exceptions. Notwithstanding any provision of this Agreement
to the contrary, Shareholder may disclose or reveal any information,
whether including in whole or in part any Trade Secrets, that
(a) Shareholder is required to disclose or reveal under any
applicable Rule, provided Shareholder makes a good faith request that the
confidentiality of the Trade Secrets be preserved and, to the extent not
prohibited by applicable Rules, gives CVB and Chino Valley prompt notice of
such requirement in advance of such disclosure;
(b) Shareholder is otherwise required to disclose or reveal
by any Governmental Entity, provided Shareholder makes a good faith request
that the confidentiality of the Trade Secrets be preserved and, to the
extent not prohibited by applicable Rules, gives CVB and Chino Valley
prompt notice of such requirement in advance of such disclosure; or
(c) In the opinion of Shareholder's counsel, Shareholder is
compelled to disclose or else stand liable for contempt or suffer other
censure or penalty imposed by any Governmental Entity, provided Shareholder
makes a good faith request that the confidentiality of the Trade Secrets be
preserved and, to the extent not prohibited by applicable Rules, gives CVB
and Chino Valley prompt notice of such requirement in advance of such
disclosure.
ARTICLE III
INDEPENDENCE OF OBLIGATIONS
The covenants of Shareholder set forth in this Agreement shall be
construed as independent of any other agreement or arrangement between
Shareholder, on the one hand, and CVB and Chino Valley on the other, and
156
the existence of any claim or cause of action by Shareholder against
Fontana or CVB and Chino Valley, shall not constitute a defense to the
enforcement of such covenants against Shareholder.
ARTICLE IV
GENERAL
4.1 Amendments. To the fullest extent permitted by law, this
Agreement may be amended by agreement in writing of the parties hereto at
any time.
4.2 Integration. This Agreement constitutes the entire agreement
between the parties pertaining to the subject matter hereof and (except for
an agreement in the form of the Shareholder's Agreement attached as
Exhibit C to the Reorganization Agreement (if executed by Shareholder))
supersedes all prior agreements and understandings of the parties in
connection therewith.
4.3 Termination.
(a) This Agreement shall terminate automatically without
further action in the event that the Reorganization Agreement is terminated
prior to the Effective Time of the Consolidation in accordance with its
terms.
(b) Unless sooner terminated pursuant to subsection (a) of
this Section 4.3, the obligations of Shareholder under Section 2.1 shall
terminate on the second anniversary of the Effective Time of the
Consolidation.
(c) Unless sooner terminated under subsection (a) of this
Section 4.3, and except as provided in subsection (b) of this Section 4.3,
the obligations of Shareholder under this Agreement shall terminate only on
the mutual agreement of Shareholder and CVB and Chino Valley or the
Surviving Bank.
4.4 Specific Performance. Shareholder, CVB and Chino Valley each
expressly acknowledge that, in view of the uniqueness of the obligations of
Shareholder contemplated hereby, CVB and Chino Valley would not have an
adequate remedy at law for money damages in the event that this Agreement
has not been performed by Shareholder in accordance with its terms, and
therefore Shareholder, CVB and Chino Valley agree that CVB and Chino Valley
shall be entitled to specific enforcement of the terms hereof in addition
to any other remedy to which it may be entitled at law or in equity.
4.5 Severability, etc. If any provision of this Agreement shall
be held by a court of competent jurisdiction to be unreasonable as to
duration, activity or subject, it shall be deemed to extend only over the
maximum duration, range of activities or subjects as to which such
provision shall be valid and enforceable under applicable law. If any
157
provisions shall, for any reason, be held by a court of competent
jurisdiction to be invalid, illegal or unenforceable, such invalidity,
illegality or unenforceability shall not affect any other provision of this
Agreement, but this Agreement shall be construed as if such invalid,
illegal or unenforceable provision had never been contained herein.
4.6 Notices. Any notice or communication required or permitted
hereunder, shall be deemed to have been given if in writing and (a)
delivered in person, (b) delivered by confirmed facsimile transmission or
(c) mailed by certified or registered mail, postage prepaid with return
receipt requested, addressed as follows:
If to CVB and Chino Valley addressed to:
CVB Financial Corp.
701 North Haven Avenue
Suite 350
Ontario, California 91764
Attention: D. Linn Wiley
Telecopier No.: (714) 980-5232
With a copy addressed to:
Manatt, Phelps, Phillips & Kantor
11355 W. Olympic Boulevard
Los Angeles, California 90064
Attention: William T. Quicksilver
Telecopier No.: (310) 312-4224
If to Shareholder, addressed to:
____________________________
____________________________
____________________________
____________________________
With a copy addressed to:
Horgan, Rosen, Beckham & Coren
3900 W. Alameda
Suite 2000
Toluca Lake, California 90802
Attention: Gary Horgan
Telecopier No.: (818) 955-7300
or at such other address and to the attention of such other Person as a
party may notice to the other in accordance with this section 4.6. Any
such notice or communication shall be deemed received on the date delivered
personally or delivered by confirmed facsimile transmission or on the third
158
Business Day after it was sent by certified or registered mail, postage
prepaid with return receipt requested.
4.7 Waiver of Breach. Any failure or delay by CVB and Chino
Valley in enforcing any provision of this Agreement shall not operate as a
waiver thereof; and the waiver by CVB and Chino Valley of a breach of any
provision of this Agreement by Shareholder shall not operate or be
construed as a waiver of any subsequent breach or violation thereof. All
waivers shall be in writing and signed by the party to be bound.
4.8 Assignment. This Agreement shall be assignable by CVB and
Chino Valley only in connection with a sale of all or substantially all its
assets or a merger or reorganization in which it is not the surviving
corporation. Any attempted assignment in violation of this prohibition
shall be null and void.
4.9 Binding Effect; Benefit to Successors. This Agreement shall
be binding upon Shareholder and upon Shareholder's successors and
representatives and shall inure to the benefit of CVB and Chino Valley and
their successors, representatives and assigns.
4.10 Governing Law. The Agreement and the legal relations between
the parties shall be governed by and construed in accordance with the laws
of the State of California applicable to contracts between California
parties made and performed in such State.
4.11 Headings. The descriptive headings of the several Articles
and Sections of this Agreement are inserted for convenience only and do not
constitute a part of this Agreement.
4.12 Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement
and shall become effective when one or more counterparts have been signed
by each party hereto and delivered to each party hereto.
IN WITNESS WHEREOF, the parties to this Agreement have duly executed
this Agreement as of the day and year first above written.
CVB FINANCIAL CORP.
By:
Title:
CHINO VALLEY BANK
159
By:
Title:
SHAREHOLDER
(Shareholder's Name)
160
EXHIBIT B-2
FIRST AMENDED AND RESTATED NONCOMPETITION AGREEMENT
THIS FIRST AMENDED AND RESTATED NONCOMPETITION AGREEMENT
("Agreement"), dated as of October ___, 1992, is entered into by and
between CVB Financial Corp., a California corporation ("CVB"), Chino Valley
Bank, a California state chartered bank ("Chino Valley"), and
_______________ ("Shareholder").
R E C I T A L S
A. CVB, Chino Valley and Fontana First National Bank, a national
banking association ("Fontana") entered into that certain Agreement and
Plan of Reorganization ("Reorganization Agreement"), dated as of May 13,
1992 (the "Original Reorganization Agreement").
B. Shareholder is a beneficial shareholder, director and/or
Executive Officer of Fontana.
C. As an inducement to CVB and Chino Valley to enter into the
Original Reorganization Agreement, Shareholder agreed to refrain from using
trade secrets or soliciting customers or employees of Fontana or any of its
successors (the "Original Noncompetition Agreement").
D. CVB, Chino Valley and Fontana have agreed to amend certain of
the terms and provisions of and, as amended, to restate the Original
Reorganization Agreement (as amended and restated, the "Reorganization
Agreement").
E. The parties now desire to amend certain of the terms and
provisions of the Original Noncompetition Agreement to conform to the
amendments to the Reorganization Agreement.
F. Except as otherwise provided herein, each capitalized term
shall have the meaning given to such term in the Reorganization Agreement.
As used in this Agreement, the following terms shall have the meanings set
forth:
"Customer" shall mean any Person with whom Fontana has an existing
relationship for Financial Services (as defined below) from the date of the
Original Reorganization Agreement until immediately prior to the Effective
Time of the Consolidation.
161
"Enterprises" shall mean any of the businesses conducted by Fontana at
any time from the date of the Original Reorganization Agreement until
immediately prior to the Effective Time of the Consolidation.
"Financial Institution" shall mean a "depository institution" as that
term is defined in 12 C.F.R. Section 348.2, and any parent, subsidiary or
affiliate thereof.
"Financial Services" shall mean the origination, purchasing, selling
and servicing of commercial, real estate, residential, construction and
consumer loans and the solicitation and provision of deposit services and
services related thereto.
"Prospective Customer" shall mean any Person with whom Fontana has
actively pursued a relationship for Financial Services at any time between
the date of the Original Reorganization Agreement and the Effective Time of
the Consolidation.
"Trade Secrets" shall mean:
(a) All secrets and other confidential information, ideas,
knowledge, know-how, techniques, secret processes, improvements,
discoveries, methods, inventions, sales, financial information, Customers,
lists of Customers and Prospective Customers, plans, concepts, strategies
or products, as well as all documents, reports, drawings, designs, plans
and proposals otherwise pertaining to same or relating to the business and
properties of Fontana of which Shareholder has acquired, or may hereafter
acquire, knowledge and possession as a shareholder, director, officer or
employee or as a result of the transactions contemplated by the
Reorganization Agreement.
(b) Notwithstanding any other provisions of this Agreement to
the contrary, "Trade Secrets" shall not include any (i) information which
is or has become available from a third party who learned the information
independently and is not or was not bound by a confidentiality agreement
with respect to such information; or (ii) information readily ascertainable
from public, trade or other nonconfidential sources (other than as a
result, directly or indirectly, of a disclosure or other dissemination in
contravention of a confidentiality agreement).
NOW, THEREFORE, in consideration of the premises and respective
representations, warranties and covenants, agreements and conditions
contained herein and in the Reorganization Agreement, and intending to be
legally bound hereby, CVB and Chino Valley and Shareholder agree as
follows:
NOTE: Paragraph definition put in for legal numbering combined with
regular numbering. MUST PUT IN PARAGRAPH LEVEL. Definition is as follows:
Level: 1 2 3 4 5 6 7
Style: 4 5 3 1 2 4 3
162
Punct: 1 0 3 3 3 3 1
Ex: I 1.1 (a) (i) (A) (1) a.ARTICLE I
ACKNOWLEDGEMENTS BY SHAREHOLDER
Shareholder acknowledges that:
(a) CVB and Chino Valley would not enter into the
Reorganization Agreement unless Shareholder agrees not to enter into an
activity that is competitive with or similar to the Enterprises as provided
in this Agreement, or to solicit or aid in the solicitation of, on behalf
of any Financial Institution, Customers or Prospective Customers for
Financial Services as provided in this Agreement and that, accordingly,
this Agreement is a material inducement for CVB and Chino Valley to enter
into and to carry out the terms of the Reorganization Agreement.
Accordingly, Shareholder expressly acknowledges that he is entering into
this Agreement to induce CVB and Chino Valley to enter into and carry out
the terms of the Reorganization Agreement and to cause New Bank to enter
into the Agreement to Consolidate pursuant thereto.
(b) By virtue of his position with Fontana, Shareholder has
developed considerable expertise in the business operations of Fontana and
has access to Trade Secrets. Shareholder recognizes that CVB and Chino
Valley would be irreparably damaged, and its substantial investment in
Fontana materially impaired, if Shareholder were enter into an activity
that is competitive with the Enterprises in violation of the terms of this
Agreement, if Shareholder were to disclose or make unauthorized use of any
Trade Secrets or if Shareholder were to solicit or aid in the solicitation
of, on behalf of any Financial Institution, Customers or Prospective
Customers of Fontana for Financial Services. Accordingly, Shareholder
expressly acknowledges that he is voluntarily entering into this Agreement
and that the terms and conditions of this Agreement are fair and reasonable
to Shareholder in all respects.
ARTICLE II
NONCOMPETITION
2.1 Noncompetition. For a period of two years after the Effective
Time of the Consolidation, Shareholder shall not, directly or indirectly,
without the prior written consent of CVB and Chino Valley or the Surviving
Bank (i) own, manage, operate, control, finance or participate in the
ownership, management, operation, control or financing of, or be connected
as an officer, director, employee, partner, principal, agent,
representative, consultant or otherwise with, any business or enterprise
engaged in any business which is competitive with or similar to the
Enterprises within the City of Fontana, in the County of San Bernardino,
State of California (the "Territory"); (ii) engage in any other manner,
within the Territory, in any business that is competitive with or similar
to the Enterprises; or (iii) on behalf of any Financial Institution,
solicit or aid in the solicitation of Customers or Prospective Customers
for Financial Services or induce or attempt to induce any Customer,
163
Prospective Customer, suppliers, distributors, officers or employees to
terminate such Person's relationships with, or to take any action that
would be disadvantageous to CVB and Chino Valley or the Surviving Bank.
Notwithstanding the above, Shareholder shall not be deemed to be engaged
directly or indirectly in any business in contravention of paragraphs (i)
or (ii) above, if (y) Shareholder participates in any such business solely
(A) as an officer or director of the Surviving Bank or (B) as a passive
investor in up to 5% of the equity securities or 10% of the debt securities
of a company or partnership, provided such securities are publicly traded
or (z) Shareholder is employed by a business or enterprise that is engaged
primarily in a business other than that which is competitive with or
similar to the Enterprises and Shareholder does not apply his expertise at
such business or enterprise to that part of such business or enterprise
that is competitive with or similar to the Enterprises.
2.2 Trade Secrets. Without limiting the generality of the
foregoing and at all times after the date hereof, other than for the
benefit of Fontana and, after the Effective Time of the Consolidation,
other than for the benefit of the Surviving Bank, Shareholder (i) shall
make no use of the Trade Secrets, or any other part thereof, (ii) shall not
disclose the Trade Secrets, or any part thereof, to any other Person, and
(iii) shall deliver, on and after the Effective Time of the Consolidation,
all documents, reports, drawings, designs, plans, proposals and other
tangible evidence of Trade Secrets, now possessed or hereafter acquired by
Shareholder, to the Surviving Bank.
2.3 Exceptions. Notwithstanding any provision of this Agreement
to the contrary, Shareholder may disclose or reveal any information,
whether including in whole or in part any Trade Secrets, that:
(a) Shareholder is required to disclose or reveal under any
applicable Rule, provided Shareholder makes a good faith request that the
confidentiality of the Trade Secrets be preserved and, to the extent not
prohibited by applicable Rules, gives CVB and Chino Valley prompt notice of
such requirement in advance of such disclosure;
(b) Shareholder is otherwise required to disclose or reveal
by any Governmental Entity, provided Shareholder makes a good faith request
that the confidentiality of the Trade Secrets be preserved and, to the
extent not prohibited by applicable Rules, gives CVB and Chino Valley
prompt notice of such requirement in advance of such disclosure; or
(c) In the opinion of Shareholder's counsel, Shareholder is
compelled to disclose or else stand liable for contempt or suffer other
censure or penalty imposed by any Governmental Entity, provided Shareholder
makes a good faith request that the confidentiality of the Trade Secrets be
preserved and, to the extent not prohibited by applicable Rules, gives CVB
and Chino Valley prompt notice of such requirement in advance of such
disclosure.
164
ARTICLE III
INDEPENDENCE OF OBLIGATIONS
The covenants of Shareholder set forth in this Agreement shall be
construed as independent of any other agreement or arrangement between
Shareholder, on the one hand, and CVB and Chino Valley on the other, and
the existence of any claim or cause of action by Shareholder against
Fontana or CVB and Chino Valley, shall not constitute a defense to the
enforcement of such covenants against Shareholder.
ARTICLE IV
GENERAL
4.1 Amendments. To the fullest extent permitted by law, this
Agreement may be amended by agreement in writing of the parties hereto at
any time.
4.2 Integration. This Agreement constitutes the entire agreement
between the parties pertaining to the subject matter hereof and (except for
an agreement in the form of the Shareholder's Agreement attached as
Exhibit C to the Reorganization Agreement (if executed by Shareholder))
supersedes all prior agreements and understandings of the parties in
connection therewith.
4.3 Termination.
(a) This Agreement shall terminate automatically without
further action in the event that the Reorganization Agreement is terminated
prior to the Effective Time of the Consolidation in accordance with its
terms.
(b) Unless sooner terminated pursuant to subsection (a) of
this Section 4.3, the obligations of Shareholder under Section 2.1 shall
terminate on the second anniversary of the Effective Time of the
Consolidation.
(c) Unless sooner terminated under subsection (a) of this
Section 4.3, and except as provided in subsection (b) of this Section 4.3,
the obligations of Shareholder under this Agreement shall terminate only on
the mutual agreement of Shareholder and CVB and Chino Valley or the
Surviving Bank.
4.4 Specific Performance. Shareholder, CVB and Chino Valley each
expressly acknowledge that, in view of the uniqueness of the obligations of
Shareholder contemplated hereby, CVB and Chino Valley would not have an
adequate remedy at law for money damages in the event that this Agreement
has not been performed by Shareholder in accordance with its terms, and
therefore Shareholder, CVB and Chino Valley agree that CVB and Chino Valley
shall be entitled to specific enforcement of the terms hereof in addition
to any other remedy to which it may be entitled at law or in equity.
165
4.5 Severability, etc. If any provision of this Agreement shall
be held by a court of competent jurisdiction to be unreasonable as to
duration, activity or subject, it shall be deemed to extend only over the
maximum duration, range of activities or subjects as to which such
provision shall be valid and enforceable under applicable law. If any
provisions shall, for any reason, be held by a court of competent
jurisdiction to be invalid, illegal or unenforceable, such invalidity,
illegality or unenforceability shall not affect any other provision of this
Agreement, but this Agreement shall be construed as if such invalid,
illegal or unenforceable provision had never been contained herein.
4.6 Notices. Any notice or communication required or permitted
hereunder, shall be deemed to have been given if in writing and (a)
delivered in person, (b) delivered by confirmed facsimile transmission or
(c) mailed by certified or registered mail, postage prepaid with return
receipt requested, addressed as follows:
If to CVB and Chino Valley addressed to:
CVB Financial Corp.
701 North Haven Avenue
Suite 350
Ontario, California 91764
Attention: D. Linn Wiley
Telecopier No.: (714) 980-5232
I put a block protect in here on 9/9/92.With a copy addressed to:
Manatt, Phelps, Phillips & Kantor
11355 W. Olympic Boulevard
Los Angeles, California 90064
Attention: William T. Quicksilver
Telecopier No.: (310) 312-4224
If to Shareholder, addressed to:
____________________________
____________________________
____________________________
____________________________
With a copy addressed to:
Horgan, Rosen, Beckham & Coren
3900 W. Alameda
Suite 2000
Toluca Lake, California 90802
Attention: Gary Horgan
166
Telecopier No.: (818) 955-7300
or at such other address and to the attention of such other Person as a
party may notice to the other in accordance with this section 4.6. Any
such notice or communication shall be deemed received on the date delivered
personally or delivered by confirmed facsimile transmission or on the third
Business Day after it was sent by certified or registered mail, postage
prepaid with return receipt requested.
4.7 Waiver of Breach. Any failure or delay by CVB and Chino
Valley in enforcing any provision of this Agreement shall not operate as a
waiver thereof; and the waiver by CVB and Chino Valley of a breach of any
provision of this Agreement by Shareholder shall not operate or be
construed as a waiver of any subsequent breach or violation thereof. All
waivers shall be in writing and signed by the party to be bound.
4.8 Assignment. This Agreement shall be assignable by CVB and
Chino Valley only in connection with a sale of all or substantially all its
assets or a merger or reorganization in which it is not the surviving
corporation. Any attempted assignment in violation of this prohibition
shall be null and void.
4.9 Binding Effect; Benefit to Successors. This Agreement shall
be binding upon Shareholder and upon Shareholder's successors and
representatives and shall inure to the benefit of CVB and Chino Valley and
their successors, representatives and assigns.
4.10 Governing Law. The Agreement and the legal relations between
the parties shall be governed by and construed in accordance with the laws
of the State of California applicable to contracts between California
parties made and performed in such State.
4.11 Headings. The descriptive headings of the several Articles
and Sections of this Agreement are inserted for convenience only and do not
constitute a part of this Agreement.
4.12 Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement
and shall become effective when one or more counterparts have been signed
by each party hereto and delivered to each party hereto.
IN WITNESS WHEREOF, the parties to this Agreement have duly executed
this Agreement as of the day and year first above written.
CVB FINANCIAL CORP.
By:
167
Title:
CHINO VALLEY BANK
By:
Title:
SHAREHOLDER
(Shareholder's Name)
168
EXHIBIT C
FIRST AMENDED AND RESTATED SHAREHOLDER'S AGREEMENT
THIS SHAREHOLDER'S AGREEMENT ("Agreement"), dated as of October
___, 1992, is entered into by and between CVB Financial Corp., a California
corporation ("CVB"), Chino Valley Bank, a California state chartered bank
("Chino Valley"), and ___________________________ ("Shareholder").
R E C I T A L S
A. CVB, Chino Valley and Fontana First National Bank, a national
banking association ("Fontana") entered into that certain Agreement and
Plan of Reorganization dated as of May 13, 1992 (the "Original
Reorganization Agreement")
B. Shareholder is a member of the Board of Directors of Fontana
and owns shares of the common stock, $5.00 par value, of Fontana ("Fontana
Stock").
C. As an inducement to CVB and Chino Valley to enter into the
Original Reorganization Agreement, Shareholder entered into a Shareholder's
Agreement dated as of May 13, 1992 (the "Original Shareholder's Agreement")
pursuant to which Shareholder agreed to vote or cause to be voted all
shares of Fontana Stock with respect to which Shareholder has voting power
on the date of the Original Shareholder's Agreement or thereafter acquired
to approve the Original Reorganization Agreement and the transactions con-
templated thereby and all requisite matters related thereto.
D. CVB, Chino Valley and Fontana have agreed to amend certain of
the terms and provisions of and, as amended, to restate the Original
Reorganization Agreement (as amended and restated, the "Reorganization
Agreement").
E. The parties now desire to amend certain of the terms and
provisions of the Original Shareholder's Agreement to conform to the
amendments to the Reorganization Agreement.
F. Unless otherwise provided in this Agreement, capitalized terms
shall have the meanings given to them in the Reorganization Agreement.
NOW THEREFORE, in consideration of the premises and of the respective
representations, warranties and covenants, agreements and conditions
contained herein and in the Reorganization Agreement, and intending to be
legally bound hereby, CVB and Chino Valley and Shareholder agree as
follows:
169
NOTE: Paragraph definition put in for legal numbering combined with
regular numbering. MUST PUT IN PARAGRAPH LEVEL. Definition is as follows:
Level: 1 2 3 4 5 6 7
Style: 4 5 3 1 2 4 3
Punct: 1 0 3 3 3 3 1
Ex: I 1.1 (a) (i) (A) (1) a.
ARTICLE I
SHAREHOLDER'S AGREEMENT
1.1 Agreement to Vote. Shareholder shall vote or cause to be
voted at any meeting of shareholders of Fontana to approve the
Reorganization Agreement and the transactions contemplated thereby (the
"Shareholders' Meeting"), all of the shares of Fontana Stock as to which
Shareholder has sole or shared voting power (the "Shares"), as of the
record date established to determine shareholders who have the right to
vote at any such Shareholders' Meeting or to give consent to action in
writing (the "Record Date"), to approve the Reorganization Agreement, the
Agreement to Consolidate and the transactions contemplated thereby,
including the principal terms of the Consolidation.
1.2 Legend. Shareholder agrees to stamp, print or type on the face of
his or her certificates of Fontana Stock evidencing the Shares the
following legend:
"THE VOTING, SALE, ASSIGNMENT, TRANSFER, PLEDGE,
HYPOTHECATION OR OTHER ENCUMBRANCE OR DISPOSITION OF THE SHARES
REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO A SHAREHOLDER'S
AGREEMENT DATED AS OF THE __ DAY OF OCTOBER, 1992 BY AND BETWEEN
CVB FINANCIAL CORP., CHINO VALLEY BANK AND (NAME OF SHAREHOLDER),
COPIES OF WHICH ARE ON FILE AT THE OFFICES OF FONTANA FIRST
NATIONAL BANK."
1.3 Restrictions on Dispositions. Shareholder agrees that, from and
after the date of the Original Shareholder's Agreement and during the term
of this Agreement, he will not take any action that will alter or affect in
any way the right to vote the Shares, except (i) with the prior written
consent of CVB and Chino Valley or (ii) to change such right from that of a
shared right of the Shareholder to vote the Shares to a sole right of the
Shareholder to vote the Shares.
1.4 Shareholder Approval. The Shareholder shall (i) recommend
shareholder approval of the Reorganization Agreement, the Agreement to
Consolidate and the transactions contemplated thereby by the Fontana
shareholders at the Shareholders' Meeting and (ii) advise the Fontana
shareholders to reject any subsequent proposal or offer received by Fontana
relating to any Alternative Transaction or purchase, sale, acquisition,
merger or other form of business combination involving Fontana or any of
its assets, equity securities or debt securities and to proceed with the
transactions contemplated by the Reorganization Agreement; provided,
however, that the Shareholder shall not be obligated to take any action
170
specified in clause (ii) if the Board of Directors of Fontana is advised in
writing by outside legal counsel (Horgan, Rosen, Beckham & Coren, or such
other counsel that is reasonably acceptable to CVB and Chino Valley) that,
in the exercise of his or her fiduciary duties, a director of Fontana
should not take such action.
I put a block protect here on 9/9/92.ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SHAREHOLDER
Shareholder represents and warrants to CVB and Chino Valley that the
statements set forth below are true and correct as of the date of this
Agreement, except those that are specifically as of a different date:
2.1 Ownership and Related Matters.
(a) Schedule 2.1(a) hereto correctly sets forth the number of
Shares and the nature of Shareholder's voting power with respect thereto as
of the date hereof. Within five business days after the Record Date, the
Shareholder shall amend said Schedule 2.1(a) to correctly reflect the
number of Shares and the nature of Shareholder's voting power with respect
thereto as of the Record Date.
(b) There are no proxies, voting trusts or other agreements
or understandings to or by which Shareholder or his or her spouse is a
party or bound or that expressly requires that any of the Shares be voted
in any specific manner other than as provided in this Agreement.
2.2 Authorization; Binding Agreement. Shareholder has the legal
right, power, capacity and authority to execute, deliver and perform this
Agreement, and this Agreement is the valid and binding obligation of
Shareholder enforceable in accordance with its terms, except as the
enforcement thereof may be limited by general principles of equity.
2.3 Non-Contravention. The execution, delivery and performance of
this Agreement by Shareholder will not (a) conflict with or result in the
breach of, or default or actual or potential loss of any benefit under, any
provision of any agreement, instrument or obligation to which Shareholder
or his or her spouse is a party or by which any of Shareholder's properties
or his or her spouse's properties are bound, or give any other party to any
such agreement, instrument or obligation a right to terminate or modify any
term thereof; (b) require any Consents; (c) result in the creation or
imposition of any Encumbrance on any of the Shares or any other assets of
Shareholder or his or her spouse; or (d) violate any Rules to which
Shareholder or his or her spouse is subject.
ARTICLE III
GENERAL
171
3.1 Amendments. To the fullest extent permitted by law, this
Agreement and any schedule or exhibit attached hereto may be amended by
agreement in writing of the parties hereto at any time.
3.2 Integration. This Agreement constitutes the entire agreement
between the parties pertaining to the subject matter hereof and (except for
the agreement in the form of the Noncompetition Agreement attached as
Exhibit B to the Reorganization Agreement (if executed by Shareholder))
supersedes all prior agreements and understandings of the parties in
connection therewith.
3.3 Specific Performance. Shareholder, CVB and Chino Valley each
expressly acknowledge that, in view of the uniqueness of the obligations of
Shareholder contemplated hereby, CVB and Chino Valley would not have an
adequate remedy at law for money damages in the event that this Agreement
has not been performed by Shareholder in accordance with its terms, and
therefore Shareholder, CVB and Chino Valley agree that CVB and Chino Valley
shall be entitled to specific enforcement of the terms hereof in addition
to any other remedy to which it may be entitled at law or in equity.
3.4 Termination. This Agreement shall terminate automatically
without further action at the earlier of the Effective Time of the
Consolidation or the termination of the Reorganization Agreement in
accordance with its terms. Upon termination of this Agreement as provided
herein, the respective obligations of the parties hereto shall immediately
become void and have no further force and effect.
3.5 No Assignment. Neither this Agreement nor any rights, duties
or obligations hereunder shall be assignable by CVB, Chino Valley or
Shareholder, in whole or in part. Any attempted assignment in violation of
this prohibition shall be null and void. Subject to the foregoing, all of
the terms and provisions hereof shall be binding upon, and inure to the
benefit of, the successors of the parties hereto.
3.6 Headings. The descriptive headings of the several Articles
and Sections of this Agreement are inserted for convenience only and do not
constitute a part of this Agreement.
3.7 Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement
and shall become effective when one or more counterparts have been signed
by each party hereto and delivered to each party hereto.
3.8 Notices. Any notice or communication required or permitted
hereunder, shall be deemed to have been given if in writing and (a)
delivered in person, (b) delivered by confirmed facsimile transmission or
(c) mailed by certified or registered mail, postage prepaid with return
receipt requested, addressed as follows:
If to CVB and Chino Valley, addressed to:
172
CVB Financial Corp.
701 North Haven Avenue
Suite 350
Ontario, California 91764
Attention: D. Linn Wiley
Telecopier No. (714) 980-5232
With a copy addressed to:
Manatt, Phelps, Phillips & Kantor
11355 West Olympic Boulevard
Los Angeles, California 90064
Attention: William T. Quicksilver
Facsimile No: (310) 312-4224
If to Shareholder, addressed to:
____________________________
____________________________
____________________________
____________________________
With a copy addressed to:
Horgan, Rosen, Beckham & Coren
3900 W. Alameda
Suite 2000
Toluca Lake, California 90802
Attention: Gary Horgan
Telecopier No.: (818) 955-7300
or at such other address and to the attention of such other person as a
party may notice to the others in accordance with this Section 3.8. Any
such notice or communication shall be deemed received on the date delivered
personally or delivered by confirmed facsimile transmission or on the third
Business Day after it was sent by certified or registered mail, postage
prepaid with return receipt requested.
3.9 Governing Law. This Agreement and the legal relations between the
parties shall be governed by and construed in accordance with the laws of
the State of California applicable to contracts between California parties
made and performed in such State.
3.10 Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement
and shall become effective when one or more counterparts have been signed
by each party hereto and delivered to each party hereto.
173
IN WITNESS WHEREOF, the parties to this Agreement have caused and duly
executed this Agreement as of the day and year first above written.
CVB FINANCIAL CORP.
By:
Title:
CHINO VALLEY BANK
By:
Title:
SHAREHOLDER
(Shareholder's Name)
SPOUSAL CONSENT
I am the spouse of __________________, the Shareholder in the
above Agreement. I understand that I may consult independent legal counsel
as to the effect of this Agreement and the consequences of my execution of
this Agreement and, to the extent I felt it necessary, I have discussed it
with legal counsel. I hereby confirm this Agreement and agree that it
shall bind my interest in the Shares, if any.
(Shareholder's Spouse's Name)
EXHIBIT D
FORM OF OPINION OF FONTANA'S COUNSEL
174
The opinion of counsel required by section 8.2(e) of the First
Amended and Restated Agreement and Plan of Reorganization (the "Agreement")
shall be dated as of the Closing Date, shall be in form and substance
reasonably satisfactory to CVB and Chino Valley, and shall contain opinions
substantially in the form set forth below. (All capitalized terms not
otherwise defined herein having the meaning specified in the Agreement).
1. Fontana is a national banking association, duly organized,
existing and in good standing under the laws of the United States and is
authorized by the Comptroller to conduct a general banking business.
Fontana is a member of the Federal Reserve System and its deposits are
insured by the FDIC. Fontana has all necessary corporate power and all
Permits, including all necessary California and United States federal
banking authorizations, licenses and qualifications, to own or lease its
properties and assets, and to carry on its business as now conducted. All
such Permits are valid and in full force and effect and, to the best
knowledge of Fontana, no suspension or cancellation of any of them has been
initiated or is threatened and all related filings, applications and
registrations are current. Neither the scope of the business of Fontana
nor the location of any of its properties requires that it be licensed to
do business in any jurisdiction other than the State of California.
2. The authorized capital of Fontana is as set forth in
section 4.2 of the Agreement. All of the outstanding shares of Fontana
Stock are validly issued, fully paid and nonassessable (except as provided
for in 12 U.S.C. Section 55). Except for the Fontana Options referred to
in section 4.2 of the Agreement, there are no outstanding options, warrants
or other rights in or with respect to the unissued shares of Fontana Stock
or any other securities convertible into Fontana Stock and Fontana is not
obligated to issue any additional shares of Fontana Stock or any additional
options, warrants or other rights in or with respect to the unissued shares
of such stock or securities convertible into such stock.
3. The execution and delivery by Fontana of the Agreement,
the Agreement to Consolidate and the consummation of the transactions
contemplated thereby, have been duly and validly authorized by all
necessary action on the part of Fontana. The Agreement and the Agreement
to Consolidate are valid and binding obligations of Fontana, enforceable in
accordance with their terms, except as the enforceability thereof may be
limited by bankruptcy, insolvency, moratorium or other similar laws
affecting the rights of creditors generally and by general equitable
principles or by Section 8(b)(6)(D) of the Federal Deposit Insurance Act,
12 U.S.C. Section 1818(b)(6)(D).
4. Neither the execution and delivery by Fontana of the
Agreement or the Agreement to Consolidate nor the consummation of the
transactions contemplated thereby, including the Merger, nor compliance by
Fontana with any of the provisions thereof, will (a) conflict with or
result in the breach of, or default or loss of any benefit under, any
175
provision of the Charter Documents of Fontana or any agreement, instrument
or obligation to which Fontana is, or the Consolidated Association will
become, a party or by which any of the properties or assets of Fontana or
the Consolidated Association are bound, or give any other party thereto the
right to terminate or modify any term thereof; (b) except for the prior
approval of the FRB, the Comptroller, the FDIC or the Superintendent and
the shareholders of Fontana, require any Consents; (c) result in the
creation or imposition of any Encumbrance on any of the properties or
assets of Fontana or the Consolidated Association; or (d) subject to
obtaining the Consents referred to in subsection (b) of this paragraph and
the expiration of any required waiting period, violate any Rule to which
Fontana is subject.
5. All Consents under California and federal law required to
be obtained by Fontana in order to permit the consummation by it of the
transactions contemplated by the Agreement and the Agreement to Consolidate
have been obtained.
6. Assuming that the Agreement to Consolidate has been duly
authorized by all necessary corporate proceedings on the part of New Bank
and that New Bank has taken all actions required to be taken by it prior to
the Effective Time of the Consolidation, upon the issuance of official
certification by the Comptroller for the Consolidation, the Consolidation
will be validly consummated in accordance with the laws of the United
States, Fontana will be consolidated with New Bank, each share of Fontana
Stock issued and outstanding as of the Effective Time of the Consolidation
(except Perfected Dissenting Shares) will be cancelled and converted into
the right to receive the Per Share Price and each outstanding option to
purchase Fontana Stock will be cancelled.
7. Except as disclosed in the schedules to the Agreement or in
such opinion, to the best knowledge of such counsel, based upon reasonable
investigation of the records of the Superior Court of California for the
County of Los Angeles and the U.S. District Court for the Central District
of California and responses of attorneys to audit inquiries of the public
accountants of Fontana and responses, if any, to inquiries of the
Comptroller, (i) there are no actions, suits or proceedings pending or
threatened against Fontana or any directors, officers or employees of
Fontana relating to the performance of their duties in such capacities, or
affecting any of the property of Fontana, before any court or arbitration
tribunal or before or by any governmental or regulatory authority or body;
(ii) Fontana has not been the subject of any indictment, information or
administrative notice of charges with respect to, nor is Fontana under
investigation with respect to, any violation of any provision of any
federal, state or other applicable law or regulation in respect of its
business, except as disclosed in writing to CVB and Chino Valley and
acknowledged by it; and (iii) Fontana is not a party to or bound by, and
none of the property of Fontana is subject to, any order, arbitration
award, judgment or decree entered in an action or proceeding brought by any
176
governmental or regulatory authority or body or by any other person against
Fontana.
8. The Proxy Statement for use at the shareholders' meeting
required pursuant to Section 4.27 of the Agreement, as of the date of
mailing and the date of the shareholders' meeting, complied as to form in
all material respects with the requirements of the National Bank Act and
all applicable rules and regulations.
Counsel shall further state that although counsel has necessarily
assumed the correctness and completeness of the statements made by Fontana
in the Proxy Statement and takes no responsibility therefor, such counsel
has, in the course of the preparation of the Proxy Statement, had
conferences with representatives of Fontana with respect thereto, and that
its examination of the Proxy Statement and its discussions in the above-
mentioned conferences did not disclose to it any information which has
caused such counsel to believe that the Proxy Statement at the time of
mailing and at the time of the meeting of Fontana's shareholders contained
any untrue statement of a material fact or omitted to state a material fact
necessary to make the statements therein not misleading (except that such
counsel need express no belief or opinion as to financial statements or
other financial or statistical data or as to any information supplied by
CVB and Chino Valley).
In rendering its opinion, such counsel may rely, to the extent
that such counsel deems reliance necessary or appropriate, as to matters of
fact, upon certificates of government officials and of any officer or
officers of Fontana or Fontana's registrar and transfer agent. The opinion
need refer only to matters of California and federal law, and such counsel
may expressly exclude any opinions as to choice of law matters, antitrust
matters and (except as set forth in paragraph 8) securities law matters and
may add other qualifications and explanations of the basis of its opinion
as may be reasonably acceptable to CVB and Chino Valley.
EXHIBIT E
FORM OF OPINION OF CVB AND CHINO VALLEY'S COUNSEL
The opinion of counsel required by Section 8.3(c) of the First
Amended and Restated Agreement and Plan of Reorganization (the "Agreement")
shall be dated as of the Closing Date, shall be in form and substance
reasonably satisfactory to Fontana and shall contain opinions substantially
in the form set forth below. (All capitalized terms not otherwise defined
herein having the meaning specified in the Agreement).
1. CVB is a corporation duly organized, existing and in a
good standing under the laws of the State of California. Chino Valley is a
177
banking corporation duly organized, existing and in a good standing under
the laws of the State of California and is authorized by the Superintendent
to conduct a general banking business. New Bank is a banking corporation
duly organized, existing and in good standing under the laws of the State
of California.
2. The execution and delivery by CVB and Chino Valley of the
Agreement and by New Bank of the Agreement to Consolidate, and the
consummation of the transactions contemplated thereby, have been duly and
validly authorized by all necessary corporate action on the part of CVB,
Chino Valley and New Bank. The Agreement is a valid and binding obligation
of CVB and Chino Valley, and the Agreement to Consolidate is a valid and
binding obligation of New Bank, each enforceable in accordance with its
terms, except as the enforceability thereof may be limited by bankruptcy,
insolvency, moratorium or other similar laws affecting the rights of
creditors generally and by general equitable principles or by Section
8(b)(6)(D) of the Federal Deposit Insurance Act, 12 U.S.C. Section
1818(b)(6)(D).
3. Neither the execution and delivery by CVB and Chino Valley of
the Agreement or by New Bank of the Agreement to Consolidate, nor the
consummation of the transactions contemplated thereby, nor compliance by
CVB, Chino Valley or New Bank with the provisions thereof, will (i)
conflict with their respective Charter Documents, (ii) except for the prior
approval of the FRB, the Comptroller, the FDIC, the Superintendent, require
any Consents, or (iii) subject to obtaining the Consents referred to in
subsection (ii) of this paragraph and the expiration of any required
waiting period, violate any Rules to which CVB, Chino Valley or New Bank is
subject.
4. All approvals required under federal and California law to
be obtained by CVB, Chino Valley and New Bank in order to permit the
consummation by them of the Consolidation and the Agreement to Consolidate
have been obtained. Assuming that the Agreement to Consolidate has been
duly authorized by all necessary corporate proceedings on the part of
Fontana and that Fontana has taken all actions required to be taken by it
prior to the Effective Time of the Consolidation, upon the issuance of
official certification by the Comptroller for the Consolidation, the
Consolidation will be validly consummated in accordance with the laws of
the United States, New Bank will be consolidated with Fontana and each
share of New Bank Stock issued and outstanding as of the Effective Time of
the Consolidation will be cancelled and converted into one share of
Consolidated Association Stock.
In rendering its opinion, such counsel may rely upon certificates
of governmental officials and of any officer or officers of CVB, Chino
Valley or New Bank. The opinion need refer only to matters of federal and
California law, and such counsel may expressly exclude any opinion as to
choice of law matters, antitrust matters and security law matters and may
178
add other qualifications and explanations of the basis of its opinion as
may be reasonably acceptable to Fontana.
AMENDMENT NO. 1 TO
FIRST AMENDED AND RESTATED
AGREEMENT AND PLAN OF REORGANIZATION
This Amendment No. 1 to First Amended and Restated Agreement and Plan
of Reorganization ("Agreement") is made and entered into as of February __,
1993 by and between CVB Financial Corp., a California corporation ("CVB"),
Chino Valley Bank, a California banking corporation ("Chino Valley"), and
Fontana First National Bank, a national banking association ("Fontana").
Capitalized terms used herein shall have the meanings given them in
the First Amended and Restated Agreement and Plan of Reorganization dated
as of October 28, 1992 (the "Restated Agreement").
R E C I T A L S
A. CVB, Chino Valley and Fontana entered into the Restated
Agreement, providing for the acquisition by CVB of all of the outstanding
shares of Fontana Stock pursuant to the Consolidation and Merger, subject
to the terms and conditions specified therein.
B. The Restated Agreement provides that the Restated Agreement may
be terminated by either party if certain conditions have not been met or if
the Closing has not occurred by February 28, 1993 (the "Expiration Date").
C. The parties now desire to extend the Expiration Date.
Now, therefore, the parties hereto agree as follows:
A G R E E M E N T
1. Paragraph 10.1(b) of the Restated Agreement shall be amended in
its entirety to read as follows:
"General Conditions Not Met. By CVB and Chino Valley or
Fontana, if any conditions set forth in Section 8.1 shall not have
been met by March 31, 1993."
2. Paragraph 10.1(c) of the Restated Agreement shall be amended in
its entirety to read as follows:
"Conditions. By CVB and Chino Valley, if any conditions set
forth in Section 8.2 shall not have been met, or by Fontana if any
conditions set forth in Section 8.3 shall not have been met, by
March 31, 1993 or such earlier time as it becomes apparent that such
condition cannot be met."
179
3. Paragraph 10.1(i) of the Restated Agreement shall be amended in
its entirety to read as follows:
"Expiration Date. By CVB and Chino Valley or Fontana if the
Closing has not occurred by March 31, 1993, unless such date is
extended by mutual agreement of the Parties (the "Expiration
Date")."
4. Except as specifically modified herein, the Restated Agreement
shall continue in full force and effect.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
CVB FINANCIAL CORP.
By
Name
Title
CHINO VALLEY BANK
By
Name
Title
FONTANA FIRST NATIONAL BANK
By
Name
Title
180
AGREEMENT
AND
PLAN OF REORGANIZATION By and Between
CVB FINANCIAL CORP., CHINO VALLEY BANK
and
WESTERN INDUSTRIAL NATIONAL BANK
November 16, 1993
AGREEMENT AND PLAN OF REORGANIZATION
This Agreement and Plan of Reorganization ("Agreement") is made
and entered into as of November 16, 1993 by and between CVB Financial
Corp., a California corporation ("CVB"), Chino Valley Bank, a California
banking corporation ("Chino Valley"), and Western Industrial National Bank,
a national banking association ("Western").
R E C I T A L S
CVB, Chino Valley and Western desire to enter into this Agreement
in order to provide for the acquisition by CVB of all of the outstanding
shares of Western Stock (as defined below) pursuant to the Consolidation
(as defined below) and Merger (as defined below), subject to the terms and
conditions specified herein, as follows:
(a) CVB will establish New Bank (as defined below) as a
wholly-owned subsidiary;
(b) Western and New Bank will enter into an Agreement to
Consolidate (as defined below) providing for the consolidation of New Bank
and Western under the charter of Western; and
(c) Immediately thereafter, the Consolidated Association
(as defined below) will merge with and into Chino Valley pursuant to an
Agreement of Merger (as defined below).
In consideration of the mutual covenants, agreements,
representations and warranties contained herein, the parties hereto agree
as follows:
181
NOTE: PARAGRAPH DEFINITION REDEFINED AS FOLLOWS:
LEVELS: 1 2 3 4 5 6
# STYLE 0 5 3 1 2 4
PUNCTUATION 0 0 3 3 3 3
EXAMPLE I 1.1 (a) (i) (A) (1)
TYPE IN PARAGRAPH LEVELSARTICLE 1
DEFINITIONS
1.1 Definitions. Capitalized terms used in this Agreement
shall have the meanings set forth below unless the context otherwise
requires:
"Affiliate" means any Person (as defined below) that directly, or
through one or more intermediaries controls, or is controlled by, or is
under common control with, the Person specified.
"Agreement to Consolidate" shall mean the Agreement to
Consolidate to be entered into by and between New Bank and Western
substantially in the form of Exhibit A-1 hereto, but subject to any changes
that may be necessary to conform to any requirements of any regulatory
agency having authority over the Consolidation (as defined below).
"Aggregate Purchase Price" shall have the meaning given such term
in Section 2.4.
"Aggregate Purchase Price Certificate" shall mean a certificate,
executed by the Chief Executive Officer and Chief Financial Officer of
Western and dated as of the Determination Date (as defined below), setting
forth the Aggregate Purchase Price and Per Share Price (as defined below),
including the Net Income/Losses (as defined below).
"Agreement of Merger" shall mean the Agreement of Merger to be
entered into by and between Chino Valley and the Consolidated Association
(as defined below) substantially in the form of Exhibit A-2 hereto, but
subject to any changes that may be necessary to conform to any requirements
of any regulatory agency having authority over the Merger.
"Alternative Transaction" shall have the meaning given such term
in subsection (a) of Section 6.5.
"Business Day" shall mean any day other than a Saturday, Sunday
or day on which commercial banks in California are authorized or required
to be closed.
"Charter Documents" shall mean, with respect to any business
organization, any certificate or articles of incorpo ration or
association, any bylaws, any partnership agreement and any other similar
documents that regulate the basic organization of the business organization
and its internal relations.
"Chino Valley" shall mean Chino Valley Bank, a
California banking corporation.
182
"Chino Valley Stock" shall mean the common stock, no par value,
of Chino Valley.
"Closing" shall mean the consummation of the transactions
contemplated by this Agreement on the Closing Date (as defined below) at
the offices of Manatt, Phelps &
Phillips, 11355 West Olympic Boulevard, Los Angeles, California, or at
such other place as the Parties (as defined below) may agree upon.
"Closing Date" shall mean, unless the Parties (as defined below)
agree on another date, the first Friday following the receipt of the
approvals and consents and expiration of the waiting periods specified in
subsection (c) of Section 8.1 and subsection (b) of Section 8.2.
"Code" shall mean the United States Internal Revenue
Code of 1986, as amended, and all regulations thereunder.
"Comptroller" shall mean the Comptroller of the
Currency.
"Confidential Information" shall mean all information heretofore
or hereafter provided by Western to CVB and Chino Valley, which is
information related to the business, financial position or operations of
Western (such information to include, by way of example only and not of
limitation, client lists, pricing information, company manuals, internal
memoranda, strategic plans, budgets, forecasts, projections, computer
models and marketing plans). Notwithstanding the foregoing, "Confidential
Information" shall not include any information that (i) at the time of
disclosure or thereafter is generally available to and known by the public
(other than as a result of a disclosure directly or indirectly by CVB and
Chino Valley or any of its officers, directors, employees or other
representatives), (ii) was available to CVB and Chino Valley on a
nonconfidential basis from a source other than Western, provided that such
source learned the information independently and is not and was not bound
by a confidentiality agreement with respect to the information, or (iii)
has been independently acquired or developed by CVB and Chino Valley
without violating any obligations under this Agreement.
"Consents" shall mean every consent, approval, absence of
disapproval, waiver or authorization from, or notice to, or registration or
filing with, any Person (as defined below).
"Consolidation" shall mean the consolidation of New Bank and
Western.
"Consolidated Association" shall mean the national banking
association surviving the Consolidation.
"Consolidated Association Stock" shall mean the common stock,
$5.00 par value, of the Consolidated Association.
"Contingent Loans" shall mean the loans of Western described on
Schedule 1.1.
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"Contingent Payment Rights" and "Contingent Payment Right" shall
have the meanings given such terms in Section 2.6.
"Contingent Reserve" shall mean a special loan loss reserve
established by Western with respect to the Contingent Loans which shall be
equal to 20% of the principal amount of the Contingent Loans; provided,
however, that such reserve shall not exceed $400,000.
"CRA" shall mean the Community Reinvestment Act.
"CVB" shall mean CVB Financial Corp., a California corporation.
"CVB Supplied Information" shall have the meaning given such term
in Section 5.4.
"Deposit" shall mean any deposit as defined in Section 3(l) of
the Federal Deposit Insurance Act, as amended to the date of this Agreement
(12 U.S.C. Section 1813(l)).
"Determination Date" shall mean the last day of the month
immediately preceding the Effective Time of the Consolidation (as defined
below), unless such day is less than 10 Business Days prior to the
Effective Time of the Consolidation,
in which case the Determination Date shall be the last day of the second
month immediately preceding the Effective Time of the Consolidation.
"DPC Property" shall mean voting securities, other personal
property and real property acquired by foreclosure or otherwise, in the
ordinary course of collecting a debt previously contracted in good faith,
retained with the object of sale for a period not longer than one year, or
any applicable statutory holding period, and recorded in the holder's
business records as such.
"Effective Time of the Consolidation" shall have the meaning
given such term in Section 2.1.
"Effective Time of the Merger" shall mean the date and time of
the filing of the Agreement of Merger bearing the certi fication of the
Secretary of State (as defined below) with the Superintendent.
"Encumbrance" shall mean any option, pledge, security interest,
lien, charge, encumbrance or restriction (whether on voting, disposition or
otherwise), whether imposed by agreement, understanding, law or otherwise.
"Environmental Law" shall mean any federal, state, provincial or
local statute, law, ordinance, rule, regulation, order, consent, decree,
judicial or administrative decision or directive of the United States or
other jurisdiction whether now existing or as hereinafter promulgated,
issued or enacted relat ing to: (A) pollution or protection of the
environment, includ ing natural resources; (B) exposure of persons,
including employees, to Hazardous Substances (as defined below) or other
products, materials or chemicals; (C) protection of the public health or
welfare from the effects of products, by-products, wastes, emissions,
discharges or releases of chemical or other substances from industrial or
commercial activities; or (D) regu lation of the manufacture, use or
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introduction into commerce of substances, including, without limitation,
their manufacture, formulation, packaging, labeling, distribution,
transportation, handling, storage and disposal. For the purposes of this
definition the term "Environmental Law" shall include, without limiting the
foregoing, the following statutes, as amended from time to time: (1) the
Clean Air Act, as amended, 42 U.S.C. 7401 et seq.; (2) the Federal Water
Pollution Control Act, as amended, 33 U.S.C. 1251 et seq.; (3) the Resource
Conservation and Recovery Act of 1976, as amended, 42 U.S.C. 6901 et seq.,
(4) the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended (including the Superfund Amendments and
Reauthorization Act of 1986), 42 U.S.C 2601 et seq.; (5) the Toxic
Substances Control Act, as amended, 15 U.S.C. 2601 et seq.; (6) the
Occupational Safety and Health Act, as amended, 29 U.S.C. 651; (7) the
Emergency Planning and Community Right-To-Know Act of 1986, 42 U.S.C. 1101
et seq.; (8) the Mine Safety and Health Act of 1977, as amended, 30 U.S.C.
801 et seq.; (9) the Safe Drinking Water Act, 42 U.S.C. 300f et seq.; and
(10) all comparable state and local laws, laws of other jurisdictions or
orders and regulations including, but not limited to, the Carpenter-
Presley-Tanner Hazardous Substance Account Act, Cal. Health & Safety Code
25300 et seq.
"Equity Securities" shall mean the capital stock of Western or
any options, rights, warrants or other rights to subscribe for or purchase,
or any plans, contracts or commitments that are exercisable in, such
capital stock or that provide for the issuance of, or grant the right to
acquire, or are convert
ible into, or exchangeable for, such capital stock.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended, and all regulations thereunder.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and all rules and regulations thereunder.
"Exchange Agent" shall mean the corporation or financial
institution appointed by CVB to effect the exchange contemplated by Section
2.5.
"Executive Officer" shall mean a natural person who participates
or has the authority to participate (other than in the capacity of a
director) in major policy making functions, whether or not such person has
a title or is serving with salary or other compensation.
"FDIC" shall mean the Federal Deposit Insurance
Corporation.
"Governmental Entity" shall mean any court or tribunal in any
jurisdiction or any United States federal, state, munici pal, domestic,
foreign or other administrative agency, depart ment, commission, board,
bureau or other governmental authority or instrumentality.
"Hazardous Substances" shall mean (i) substances that are defined
or listed in, or otherwise classified pursuant to, or the use or disposal
of which are regulated by, any Environmental Law as "hazardous substances,"
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"hazardous materials," "hazardous wastes," toxic substances," or any other
formulation intended to define, list, or classify substances by reason of
deleterious properties such as ignitability, corrosivity, reactivity,
carcino genicity, reproductive toxicity, or "EP toxicity;" (ii) oil,
petroleum or petroleum derived from substances and drilling fluids,
produced waters, and other wastes associated with the exploration,
development, or production of crude oil, natural gas, or geothermal
resources; (iii) any flammable substances or explosives, any radioactive
materials, any hazardous wastes or substances, any toxic wastes or
substances or any other materials or pollutants which pose a hazard to any
property or to Persons on or about such property; and (iv) asbestos in any
form or electrical equipment which contains any oil or dielectric fluid
containing levels of polychlorinated biphenyls in excess of 50 parts per
million.
"Interim Period Amount" shall mean an amount equal to the net
income of Western for the six month period ending December 31, 1993,
divided by the number of days in such six month period, multiplied by the
number of days from the Determination Date to the Effective Time of the
Consolidation; provided, however, that the Interim Period Amount shall not
include any extraordinary charges relating to the transactions contemplated
by this Agreement.
"Material Contract" shall have the meaning given such term in
Section 4.11.
"Merger" shall mean the merger of the Consolidated Association
with and into Chino Valley.
"Net Income/Losses" shall mean an amount equal to the net income
or net losses of Western for the period commencing on January 1, 1993 and
ending on the Determination Date (as defined
below) (the "Income Period"), determined in accordance with generally
accepted accounting principles on a basis consistent with those utilized in
the preparation of the Western Financial Statements (as defined below) for
the year ended December 31, 1992 (except for changes, if any, required by
generally accepted accounting principles), taking into account (A) all
accruals and reserves necessary to fairly present the net income or net
losses of Western for the Income Period, (B) all amounts not previously
expensed or accrued for (i) payments to holders of Western Options (as
defined below) for the cancellation of Western Options in accordance with
Section 2.1(c), (ii) payments in respect of the cancellation and
termination of the Western Employment Agreements (as defined below), (iii)
payments in respect of expenses and costs relating to the transactions
contemplated by this Agreement, (iv) payments in respect of the termination
of all Western employee benefit plans and all benefits payable thereunder,
(v) establishing the Contingent Reserve and (vi) establishing a loan loss
reserve for all loans other than the Contingent Loans that is, as of the
Determination Date, not less than $700,000 and (C) any other adjustments
mutually agreed to by Western, CVB and Chino Valley. Notwithstanding the
foregoing, the parties hereto agree that any increase in capital resulting
from the exercise of Western Options for cash shall be added to net income.
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"New Bank" shall mean the interim California banking corporation
established by CVB solely for the purpose of effecting the Consolidation.
"New Bank Stock" shall mean the common stock, no par value, of
New Bank.
"Noncompetition Agreement" shall mean an agreement, substantially
in the form of Exhibit B-1 or B-2 hereto, pursuant to which each of the
directors and Executive Officers of Western as of the date of the Original
Agreement shall covenant not to compete with the Surviving Bank (as defined
below).
"Operating Loss" shall have the meaning given such term in
Section 4.24.
"Party" shall mean any of CVB, Chino Valley or Western and
"Parties" shall mean all of CVB, Chino Valley and Western.
"Per Share Price" shall mean the quotient obtained by dividing
(x) the Aggregate Purchase Price by (y) the total number of shares of
Western Stock outstanding immediately prior to the Effective Time of the
Consolidation (including Perfected Dissenting Shares).
"Perfected Dissenting Shares" shall mean shares of Western Stock
the holders of which have satisfied the requirements of Section 215 (as
defined below) and have not effectively withdrawn or lost their dissenters'
rights under Section 215.
"Permit" shall mean any United States federal, foreign, state,
local or other license, permit, franchise, certificate of authority, order
or approval necessary or appropriate under any applicable Rule (as defined
below).
"Person" shall mean any natural person, corporation, trust,
association, unincorporated body, partnership, joint venture, Governmental
Entity, statutorily or regulatory sanctioned unit or any other person or
organization.
"Proxy Statement" shall have the meaning given such term in
Section 4.27.
"Real Property" shall have the meaning given such term in
subsection (a) of Section 4.12.
"Representatives" shall have the meaning given such term in
subsection (a) of Section 6.1.
"Rule" shall mean any statute or law or any judgment, decree,
injunction, order, regulation or rule of any Governmental Entity,
including, without limitation, those relating to dis closure, usury, equal
credit opportunity, equal employment, fair credit reporting and
anticompetitive activities.
"Second Anniversary Date" shall mean the day that is the second
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anniversary date of the Closing Date.
"Secretary of State" shall mean the Secretary of State of the
State of California.
"Section 215" shall mean Section 215 of Title 12 of the United
States Code.
"Securities Act" shall mean the Securities Act of 1933, as
amended, and all rules and regulations thereunder.
"Shareholder's Agreement" shall mean an agreement, substantially
in the form of Exhibit C hereto, pursuant to which each signatory shall
agree to vote or cause to be voted all shares of Western Stock with respect
to which such Person has voting power on the date hereof or hereafter
acquires to approve the Agreement and the transactions contemplated hereby
and all requisite matters related thereto.
"Superintendent" shall mean the Superintendent of Banks of the
State of California.
"Surviving Bank" shall mean the bank surviving the Merger.
"Surviving Bank Stock" shall mean the common stock, no par value,
of the Surviving Bank.
"Tax Filings" shall have the meaning given such term in Section
4.10.
"Third Party Consent" shall have the meaning given such term in
subsection (b) of Section 7.1.
"To the knowledge" and "to the best knowledge" shall have the
meanings given such terms in Section 11.12.
"Western" shall mean Western Industrial National Bank, a national
banking association, and all of its subsidiaries.
"Western Employment Agreements" shall mean any employment
agreement, severance agreement, "golden parachute" agreement or any other
agreement which provides for payments to employees of Western upon
termination of employment, including termination after a change in control.
"Western Filings" shall have the meaning given such term in
Section 4.9.
"Western Lease" shall mean the Agreement of Lease dated
July 29, 1982 between Ray E. Andruss and Margaret M. Andruss and Western.
"Western Options" shall mean options to purchase Western Stock
(as defined below) pursuant to the Western Stock Option Plan (as defined
below).
"Western Stock" shall mean the common stock, $5.00 par value, of
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Western.
"Western's Stock Option Plan" shall mean the Incentive Stock
Option Plan of Western.
"Western Supplied Information" shall have the meaning given such
term in Section 4.27.
"Western Financial Statements" shall have the meaning given such
term in subsection (a) of Section 4.4.
"WIN Investment Group" shall mean an investment group comprised
of the following individuals: Thomas Walker; Mildred Walker; Evans Menon;
Gay Menon; Roger Gutierrez; Noel Castellon; Robert Byram; and Lewis Beery.
ARTICLE 2
THE CONSOLIDATION AND RELATED MATTERS
2.1 The Consolidation. The Parties hereto agree that each
will use their best efforts to perfect the organization of New Bank in
accordance with the California Financial Code and the regulations
promulgated thereunder prior to the Closing Date. The directors and
officers of New Bank, and the Articles of Incorporation and Bylaws of New
Bank, shall be determined by CVB. Subject to the provisions of this
Agreement, the Parties agree to request that the approval of the
Consolidation to be issued by the Comptroller on or prior to the Closing
Date shall provide that the Consolidation shall become effective (the
"Effective Time of the Consolidation") as of the Closing Date and
immediately prior to the Effective Time of the Merger. At the Effective
Time of the Consolidation, the following transactions will occur
simultaneously:
(a) Consolidation of Western and New Bank. Western and
New Bank shall be consolidated under the charter of Western.
(b) Effect on Western Stock. Subject to Section 2.3,
each share of Western Stock issued and outstanding immediately prior to the
Effective Time of the Consolidation shall, on and at the Effective Time of
the Consolidation, pursuant to the Agreement to Consolidate and without any
further action on the part of Western or the holders of Western Stock, be
automatically cancelled and cease to be an issued and outstanding share of
Western Stock and be converted into the right to receive (i) the Per Share
Price and (ii) one Contingent Payment Right.
(c) Effect on Western Options. Prior to the Effective
Time of the Consolidation, Western shall make arrange ments satisfactory to
CVB for the surrender for cancellation of all Western Options outstanding
immediately prior to the Effective Time of the Consolidation, such
cancellation to become effective at the Effective Time of the
Consolidation.
(d) Effect on New Bank Stock. Each share of New Bank
Stock issued and outstanding immediately prior to the Effective Time of the
Consolidation shall, on and at the
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Effective Time of the Consolidation, pursuant to the Agreement to
Consolidate and without any further action on the part of Western or the
holder of the New Bank Stock be converted into, and shall for all purposes
be deemed to represent, one share of Consolidated Association Stock.
Because the Consolidation is subject to, and will occur only if it is
immediately followed by, the Merger and the cancellation of the
Consolidated Association Stock, no certificates representing shares of the
Consolidated Association Stock will be issued.
2.2 Effect of the Consolidation. At the Effective Time of
the Consolidation, the corporate existence of New Bank and Western shall be
merged into and continued in the Consolidated Association and the
Consolidated Association shall be deemed the same corporation as each bank
participating in the Consolidation. All rights, franchises, and interests
of New Bank and Western in and to every type of property (real, personal
and mixed) and choses in action shall be transferred to and vested in the
Consolidated Association by virtue of the Consolidation without any deed or
other transfer and the Consolidated Association shall hold and enjoy all
rights of property, franchises and interests, in the same manner and to the
same extent as such rights, franchises and interests were held or enjoyed
by any one of the consolidating banks at the Effective Time of the
Consolidation.
2.3 Dissenting Shareholders. Any Perfected Dissenting Shares
shall not be converted into the right to receive the Per Share Price and
one Contingent Payment Right, but the holders thereof shall be entitled
only to such rights as are granted them by Section 215. Each dissenting
shareholder who is entitled to payment for his shares of Western Stock
under Section 215 shall receive such payment in an amount as determined
pursuant to Section 215.
2.4 The Aggregate Purchase Price and Per Share Price.
(a) Computation of the Aggregate Purchase Price. The
Aggregate Purchase Price shall be the sum of
(i) $13,450,000, (ii) the Net Income/Losses, as defined
above and (iii) the Interim Period Amount, as defined above.
(b) Officers' Certificate; Accountant's Review. The
Aggregate Purchase Price and Per Share Price, including the Net
Income/Losses shall be set forth in the Aggregate Purchase Price
Certificate. The procedures upon which the calculation of the Aggregate
Purchase Price and Per Share Price, including the Net Income/Losses, are
based shall be reviewed and confirmed by Deloitte & Touche, or such other
independent accountants as CVB may designate.
2.5 Delivery of Cash. Prior to the Effective Time of the
Consolidation, CVB or Chino Valley will deliver to the Exchange Agent an
amount of cash equal to the Per Share Price multiplied by the number of
shares of Western Stock outstanding immediately prior to the Effective
Time of the Consolidation. Delivery to such holders of the cash to which
they are entitled will subsequently be made by the Exchange Agent against
delivery of share certificates formerly evidencing Western Stock (duly
executed and in proper form for transfer) to the Exchange Agent in
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accordance with this Section 2.5 and an agreement to be entered into
between CVB and the Exchange Agent.
2.6 Contingent Payment Rights.
(a) The Contingent Payment Rights shall represent the right to
receive cash in an aggregate amount equal to the remaining balance, if any,
of the Contingent Reserve on the Second Anniversary Date, and each
Contingent Payment Right shall represent the right to receive a pro rata
portion thereof. The Contingent Reserve shall be reduced by the amount of
net charge offs incurred by Chino Valley with respect to the Contingent
Loans from the Effective Time of the Merger until the Second Anniversary
Date; provided, however, that (i) no charge off against the Contingent
Reserve for any one of the Contingent Loans will exceed 20% of the amount
of any such Contingent Loan on the date the Contingent Reserve is
established and (ii) no loss with respect to any one Contingent Loan may be
charged against the Contingent Reserve for any other Contingent Loan.
During the time from the Effective Date of the Merger until the Second
Anniversary Date, Chino Valley shall collect and manage the Contingent
Loans, including charging off such loans against the Contingent Reserve, in
a commercially reasonably manner and consistent with the manner in which it
manages, collects and charges off other loans in its loan portfolio with
similar characteristics. From the Effective Time of the Merger until the
Second Anniversary Date, Chino Valley (i) shall notify WIN Investment Group
five (5) Business Days prior to charging off any amount of the Contingent
Loans against the Contingent Reserve and (ii) on a semi-annual basis,
provide a written notice to WIN Investment Group as to the status of the
Contingent Reserve.
(b) The Contingent Payment Rights (i) will not be represented
by any certificate or instrument; (ii) will not be transferable or
assignable, except by will, the laws of intestacy or by other operation of
law; (iii) will not represent any ownership or equity interest in CVB or
Chino Valley; and (iv) will not entitle the holders thereof to any rights
as a security holder of CVB or Chino Valley.
(c) Each Contingent Payment Right will be initially registered
in the same name(s) as appears on the certificate evidencing the share of
Western Stock that has been converted into such right. CVB, Chino Valley or
a designated agent of either of them, will maintain a listing of the names,
addresses and tax identification numbers of the registered holders of the
Contingent Payment Rights, and such list will be conclusive and binding for
purposes of determining the registered holders of the Contingent Payment
Rights. CVB, Chino Valley or a designated agent of either of them, will
not change the registered holder of a Contingent Payment Right unless it
receives documents and assurances that it, in its sole discretion, deems
adequate to demonstrate that such Contingent Payment Right has been
transferred by will, the laws of intestacy or by other operation of law.
As soon as practicable, but in no event later than 45 days, after the
Second Anniversary Date, Chino Valley shall pay, or cause its designated
agent to pay, each registered holder of a Contingent Payment Right a pro
rata portion of the remaining balance, if any, of the Contingent Reserve as
of the Second Anniversary Date. Such payment shall not include or accrue
any interest.
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(d) From the Effective Time of the Merger until the Second
Anniversary Date, WIN Investment Group shall have the option to purchase
any Contingent Loan which Chino Valley has elected to charge off, in whole
or in part, against the Contingent Reserve at a price equal to the
principal amount of such Contingent Loan less the amount to be charged off.
2.7 Name of Consolidated Association. The name of the
Consolidated Association shall be "Western Industrial
National Bank."
2.8 Directors and Officers of Consolidated
Association. At the Effective Time of the Consolidation, the directors of
New Bank shall be the directors of the Consolidated Association until their
successors have been chosen and qualified in accordance with the Articles
of Association and Bylaws of the Consolidated Association. The officers of
New Bank at the Effective Time of the Consolidation shall be the officers
of the Consolidated Association until they resign or are replaced or
terminated by the Board of Directors of the Consolidated Association or
otherwise in accordance with the Consolidated Association's Articles of
Association or Bylaws.
2.9 Noncompetition Agreements. Concurrently with
the execution of this Agreement, Western shall cause each of its directors
to enter into an agreement substantially in the form of Exhibit B-1 hereto,
and Western shall cause each of its Executive Officers to enter into an
agreement substantially in the form of Exhibit B-2 hereto.
2.10 Shareholder's Agreements. Concurrently with
the execution of this Agreement, Western shall cause each of its directors
to enter into a Shareholder's Agreement.
ARTICLE 3
THE CLOSING
3.1 Closing Date. The Closing shall, unless
another date or place is agreed in writing by the Parties hereto, take
place at the offices of Manatt, Phelps & Phillips, 11355 West Olympic
Boulevard, Los Angeles, California, on the Closing Date.
3.2 Execution of Agreement to Consolidate. Prior
to the Closing Date, and as soon as practicable after approval of the
Superintendent to organize New Bank, the Agreement to Consolidate (as
amended, if necessary, to conform to any requirements of any regulatory
authority having authority over the Consolidation) shall be executed by
Western and New Bank. On the Closing Date, the Consolidation shall become
effective in accordance with the approval granted by the Comptroller.
3.3 Execution of Agreement of Merger. Prior to the
Closing Date, and as soon as practicable after approval of the
Superintendent to organize New Bank, the Agreement of Merger (as amended,
if necessary to conform to any requirements of any regulatory authority
having authority over the Merger) shall be executed by Chino Valley and the
Consolidated Association. On the Closing Date, the Agreement of Merger,
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bearing the certification of the Secretary of State, together with all
requisite certificates shall be duly filed in the office of the
Superintendent in accordance with the California Corporations Code and the
California Financial Code.
3.4 Documents to be Delivered. At the Closing the
Parties shall deliver, or cause to be delivered, such documents or
certificates as may be necessary, in the reasonable opinion of counsel for
any of the Parties, to effectuate the transactions called for in this
Agreement. If, at any time after the Effective Time of the Merger, the
Surviving Bank or its successors or assigns shall determine that any
further conveyance, assignment or other documents or any further action is
necessary or desirable to further effectuate the transactions set forth
herein or contemplated hereby, the officers and
directors of the Parties shall execute and deliver, or cause to be executed
and delivered, all such documents as may be reasonably required to
effectuate such transactions.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF WESTERN
Western represents and warrants to CVB and Chino Valley as
follows:
4.1 Organization, Standing and Power. Western is a national
banking association, duly organized and existing as an association under
the laws of the United States, and is authorized by the Comptroller to
conduct a general banking business. Western is a member of the Federal
Reserve System and its deposits are insured by the FDIC in the manner and
to the extent provided by law. Western has all requisite corporate power
and authority to own, lease and operate its properties and assets and to
carry on its business as presently conducted. Neither the scope of the
business of Western nor the location of any of its properties requires that
it be licensed to do business in any jurisdiction other than the State of
California. Western has delivered to CVB and Chino Valley true and correct
copies of its Articles of Association and Bylaws, as amended and in effect
as of the date hereof.
4.2 Capitalization. As of the date of this Agreement, the
authorized capitalization of Western consists of 500,000 shares of Western
Stock, of which 374,134 shares are issued and outstanding. All of the
outstanding shares of Western Stock are validly issued, fully paid and
nonassessable (except as provided for in 12 U.S.C. 55). Except for Western
Options covering 15,921 shares of Western Stock granted pursuant to the
Western Stock Option Plan, there are no outstanding options, warrants,
commitments, agreements or other rights in or with respect to the unissued
shares of Western Stock or any other securities convertible into Western
Stock. Schedule 4.2 sets forth the name of each holder of a Western
Option, the number of shares of Western Stock covered by each such Western
Option, the exercise price per share and the expiration date of each such
Western Option.
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4.3 Subsidiaries. Except as set forth on
Schedule 4.3 hereto, Western does not own, directly or indirectly
(except as pledgee pursuant to loans which are not in default), any equity
position or other voting interest in any corporation, partnership, joint
venture or other entity.
4.4 Financial Statements. Western has delivered to CVB and
Chino Valley (a) audited Balance Sheets of Western as of December 31, 1992
and 1991, the related Statements of Income, Stockholders' Equity and Cash
Flows for each of the years ended December 31, 1992, and 1991, the related
notes and related opinions thereon of Deloitte & Touche and (b) an
unaudited balance sheet of Western as of June 30, 1993, the related
statements of income, stockholders' equity and cash flows for the six
months then ended and the related notes thereto (the "Western Financial
Statements"). Western has furnished CVB and Chino Valley with true and
correct copies of each management letter or other letter delivered to
Western by Deloitte & Touche in connection with the Financial Statements of
Western or relating to any review of the internal controls of Western by
Deloitte & Touche since January 1, 1990. The Western Financial Statements
(i) present fairly the financial condition of Western as of the
respective dates indicated and its results of operations and the changes
in its stockholders' equity and cash flows for the respective periods
indicated; (ii) have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis (except for changes,
if any, required by generally accepted accounting principles and disclosed
therein); (iii) set forth as of the respective dates indicated adequate
reserves for loan losses and other contingencies; and (iv) are based on
the books and records of Western.
4.5 No Material Liabilities. Schedule 4.5 sets forth all
material liabilities of Western, including liabilities for Hazardous
Substances or under any Environmental Law, contingent or otherwise, that
are not reflected or reserved against in the Western Financial Statements
dated as of December 31, 1992, except for liabilities incurred or accrued
since December 31, 1992 in the ordinary course of business, none of which
has had or may reasonably be expected to have a material adverse effect on
the business, financial condition, results of operations or prospects of
Western. Except as set forth in Schedule 4.5, to the best knowledge of
Western, there exists no basis for the assertion against it of any
liability, obligation or claim that may reasonably be expected to have a
material adverse effect on the business, financial condition results of
operations or prospects of Western.
4.6 Authority of Western. The execution and delivery by
Western of this Agreement, the Agreement to Consolidate and, subject to the
requisite approval of the shareholders of Western, the consummation of the
transactions contemplated hereby have been duly and validly authorized by
all necessary action on the part of Western and this Agreement is, and the
Agreement to Consolidate, upon execution by the parties thereto, will be, a
valid and binding obligation of Western, enforceable in accordance with its
terms, except as the enforce ability thereof may be limited by bankruptcy,
insolvency, mora torium or other similar laws affecting the rights of
creditors of national banks generally, by general equitable principles and
by Section 8(b)(6)(D) of the Federal Deposit Insurance Act, 18 U.S.C.
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1818(b)(6)(D).
4.7 Reserved.
4.8 No Conflicts; Defaults. The execution, delivery and
performance of this Agreement, the Agreement to Consolidate and the
consummation of the transactions contemplated herein, including the Merger,
and therein and compliance by Western with any provision hereof and thereof
will not
(a) conflict with or result in a breach of, or default or loss of any
benefit under, any provision of its Charter Documents or, except as set
forth in Schedule 4.8 any material agreement, instrument or obligation to
which it is, or the Consolidated Association will become, a party or by
which the property of Western is, or the Consolidated Association will
become, bound or give any other party to any such agreement, instrument or
obligation the right to terminate or modify any term thereof; (b) except
for the prior approval of the FRB, the Comptroller, the FDIC, the
Superintendent and as set forth in Schedule 4.8, require any Consents; (c)
result in the creation or imposition of any Encumbrance on any of the
properties or assets or Western or the Consolidated Association; or (d)
subject to obtaining the Consents referred to in subsection (b) of this
Section 4.8 and the expiration of any required waiting period, violate any
Rules to which Western is subject.
4.9 Reports and Filings. Since January 1, 1990,
Western has filed all reports, returns, registrations and statements (such
reports and filings referred to as "Western Filings"), together with any
amendments required to be made with respect thereto, that were required to
be filed with (a) the Comptroller, (b) the FDIC, (c) the Superintendent and
(d) any other applicable Governmental Entity, including taxing authorities,
except where the failure to file such reports, returns, registrations and
statements has not had and is not reasonably expected to have a material
adverse effect on the business, financial condition, results of operations
or prospects of Western. No administrative actions have been taken or
orders issued in connection with such Western Filings. As of their
respective dates, each of such Western Filings (y) complied in all material
respects with all Rules enforced or promulgated by the Governmental Entity
with which it was filed (or was amended so as to be so promptly following
discovery of any such noncompliance); and (z) did not contain any untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading. Any
financial statement contained in any of such Western Filings that was
intended to present the financial position of Western fairly presented the
financial position of Western and was prepared in accordance with generally
accepted accounting principles or banking regulations consistently applied,
except as stated therein, during the periods involved. Western has
furnished CVB and Chino Valley with true and correct copies of all Western
Filings filed by Western since January 1, 1990.
4.10 Tax and Other Returns and Reports.
(a) Returns; Liabilities Recorded. Western has filed
all United States federal and foreign income tax returns, all state and
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local franchise and income tax, real and personal property tax, sales and
use tax, premium tax, excise tax and all other United States federal, state
or local tax reports and returns that it is required to file ("Tax
Filings") and has paid all taxes, together with any interest and penalties,
shown or required to be shown to be owing thereon, except taxes contested
in good faith and for which adequate reserves have been set aside.
Adequate provision has been made in the books and records of Western, and
to the extent required by generally accepted accounting principles,
reflected in the Financial Statements of Western, for all taxes, interest
and penalties, whether or not due and payable and whether or not disputed,
with respect to any and all United States federal, foreign, state, local,
environmental (including under any Environmental Law) and other taxes for
the periods covered by the Financial Statements of Western and for all
prior and subsequent periods. Western has furnished CVB and Chino Valley
with true and correct copies of all Tax Filings filed since January 1,
1990.
(b) Elections. Western has not elected to be treated as
a consenting corporation under Section 341(f) of the Code.
(c) Taxes. Except as set forth on Schedule 4.10, (i)
neither the Internal Revenue Service nor any foreign, state, local or other
taxing authority (A) has, for any period beginning on or after January 1,
1987, examined or is in the process of examining any United States federal,
foreign, state, local or other tax returns of, or affecting, Western, or
(B) is now asserting or, to the best knowledge of Western, threatening to
assert or initiate, any deficiency or claim for taxes (or interest thereon
or penalties in connection therewith) against Western; and (ii) no waivers
of statutes of limitations as to any
United States federal, foreign, state, local or other tax matters relating
to Western have been given by Western or have been requested from it.
4.11 Contracts. Except as otherwise set forth in Schedule
4.12 or Schedule 4.18, Schedule 4.11 sets forth a description of each
contract or offer that would become binding on acceptance by any third
party, whether written or oral
(a) that obligates Western to pay or forego receipt of $10,000 or more in
any 12-month period, other than any Deposit or any loan or commitment to
lend made in the ordinary course of business; (b) that involves the payment
by or to Western of more than $10,000 per year and may not be terminated by
Western on less than 30 days' notice without liability for penalty or
damages of any kind, other than for the provision of retail banking
products in the ordinary course of business or a commitment to lend made in
the ordinary course of business; (c) that relates to any guarantee or
indemnification, other than for the provision of retail banking products in
the ordinary course of business or a loan or commitment to lend made in the
ordinary course of business; (d) that would be terminable, other than by
Western, as a result of the consummation of the transactions contemplated
by this Agreement, including the Merger; (e) that may not be terminated by
Western on less than 30 days' notice without liability for penalty or
damages in an amount of $10,000 or more, other than for the provision of
retain banking products in the ordinary course of business or any loan or
commitment to lend made in the ordinary course of business; (f) that binds
Western and contains a covenant by Western not to compete or restricts in
any manner the ability of Western to engage in or conduct any activities;
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(g) that binds Western or any of its properties and contains a preferential
right in favor of a third party; (h) that relates to the purchase or sale
by Western of any loan, lease or other extension of or commitment to extend
credit or any interest therein, in each case for a aggregate amount
exceeding $25,000, whether or not servicing rights or obligations have been
retained by Western; or (i) that is otherwise material to the business,
financial condition, results of operations or prospects of Western
("Material Contract"). Except as set forth on Schedule 4.11, (x) each
Material Contract is valid and subsisting;
(y) Western has duly performed all obligations under the Material Contracts
to be performed by it to the extent that such obligations to perform have
accrued; and (z) there are no breaches, violations or defaults or
allegations or assertions of such by any party under any Material Contract.
Western has furnished CVB and Chino Valley with true and correct copies of
all Material Contracts, including all amendments and supplements thereof.
4.12 Title to Property.
(a) Real Property. Schedule 4.12 sets forth a
description (including the character of the ownership interest of Western)
of all real property of Western, including fees, leaseholds and all other
interests in real property (including real property that is DPC Property)
("Real Property"). Except as set forth on Schedule 4.12, (i) Western has
duly recorded, in the appropriate county, all recordable interests in Real
Property, (ii) Western has good and marketable title to all Real Property
and other assets and properties reflected in the Financial Statements of
Western dated as of December 31, 1992 free and clear of all Encumbrances,
except (A) Encumbrances that in the aggregate do not materially detract
from the value, interfere with the use, or restrict the sale, transfer or
disposition, of such properties and assets or otherwise materially affect
Western; (B) any lien for taxes not yet due; (C) any Encumbrances
arising under the document that created the interest in the Real Property
(other than Encumbrances arising as a result of any breach or default by
Western); and (D) assets and properties dis posed of since December 31,
1992 in the ordinary course of business and consistent with past practice.
Western has furnished CVB and Chino Valley with true and correct copies of
all leases included on Schedule 4.12 delivered as of the date of the
Agreement, all title insurance policies relating to the Real Property and
all documents evidencing recordation of all recordable interests in the
Real Property.
(b) Condition of Properties. All tangible properties of
Western that are material to the business, financial condition, results of
operations or prospects of Western are in a good state of maintenance and
repair, except for ordinary wear and tear, and are, in all material
respects, adequate for the conduct of the business of Western as presently
conducted. Except as set forth in Schedule 4.12, (i) the execution of this
Agreement, the performance of the obligations of Western hereunder and the
consummation of the transactions contemplated herein, including the Merger,
does not conflict with and will not result in a breach or default under any
lease, agreement or contract described in Schedule 4.12, or give any other
party thereto a right to terminate or modify any term thereof; (ii) Western
has no obligation to improve any Real Property; (iii) each lease and
agreement under which Western is a lessee or holds or operates any property
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(real, personal or mixed) owned by any third party is in full force and
effect and is a valid and legally binding obligation of Western, and, to
the best knowledge of Western, each other party thereto; (iv) Western and,
to the best knowledge of Western, each other party to any such lease or
agreement have performed in all material respects all the obligations
required to be performed by them to date under such lease or agreement and
are not in default in any material respect under any such lease or
agreement and there is no pending or, to the best knowledge of Western,
threatened proceeding, or proceeding which Western has reason to believe
may be threatened, that would interfere with the quiet enjoyment of such
leasehold or such material property by Western; (v) to the best knowledge
of Western, there has not been any generation, use, handling,
transportation, treatment, storage, release or disposal of any Hazardous
Substance in connection with the conduct of the business of Western that
has or might result in any liability under any Environmental Law and there
has never been a use of any of the Real Property that has or might result
in any liability under any Environmental Law; (vi) to the best knowledge of
Western, no underground storage tanks or surface impoundments are on or in
the Real Property; and (vii) to the best knowledge of Western, no asbestos
or polychlorinated biphenyls are contained or located on any of the Real
Property.
4.13 Litigation.
(a) Litigation. Schedule 4.13 sets forth, except as
otherwise set forth in Schedule 4.10, a description of each legal,
administrative, arbitration, investigatory or other proceeding (including,
without limitation, any investigation, action, or proceeding with respect
to taxes) pending or, to the best knowledge of Western, that has been
threatened, or which Western has reason to believe may be threatened,
against or affecting Western or its assets or business, and has had or may
have a material adverse effect on the assets, liabilities, business,
financial condition, results of operations or prospects of Western or
involves or may involve a claim or claims asserting aggregate liability of
$10,000 or more. Schedule 4.13 includes with respect to each matter
identified, if applicable, the case
title, the court, the court file number, the date filed, the law firm
representing Western and such other information as may be reasonably
requested by CVB and Chino Valley. Except as set forth on Schedule 4.13,
there is no (i) outstanding judgment, order, writ, injunction or decree,
stipulation or award of any Governmental Entity or by arbitration, against,
or, to the knowledge of Western, affecting Western or its assets or
business that (A) has had or may have a material adverse effect on the
assets, liabilities, business, financial condition, results of operations
or prospects of Western, (B) requires any payment by, or excuses an
obligation of a third party to make any payment to, Western of an amount
exceeding $10,000 or (C) has the effect of prohibiting any business
practice of, or the acquisition, retention or disposition of property by,
Western; or (ii) legal, administrative, arbitration, investigatory or
other proceeding pending or, to the best knowledge of Western, that has
been threatened, or which Western has reason to believe may be threatened,
against or affecting any director, officer, employee, agent or
representative of Western, in connection with which any such Person has or
may have rights to be indemnified by Western.
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(b) Regulatory Proceedings. Except as set forth in
Schedule 4.13, Western is not subject to any cease and desist order or
directive or a party to any written agreement or memorandum of
understanding with any Governmental Entity charged with the supervision or
regulation of banks or bank holding companies, or engaged in the insurance
of bank deposits, that restricts the conduct of its business, or in any
manner relates to its capital adequacy, its credit or compliance policies
or its management. Copies of any such orders, agreements or memoranda have
been made available to CVB and Chino Valley.
4.14 Certain Adverse Changes. Except as specifically
required or effected by this Agreement, since December 31, 1992 there has
not been, occurred or arisen any of the following (whether or not in the
ordinary course of business unless otherwise indicated):
(a) Any change in any of the assets, liabilities,
Permits, methods of accounting or accounting practice, business, or manner
of conducting business, of Western or any other event or development that
has had or may reasonably be expected to have a material adverse effect on
the assets, liabilities, Permits, business, financial condition, results of
operations or prospects of Western;
(b) Any damage, destruction or other casualty loss
(whether or not covered by insurance) that has had or may reasonably be
expected to have a material adverse effect on the assets, liabilities,
business, financial condition, results of operations or prospects of
Western or that may involve a loss of more than $10,000 in excess of
applicable insurance coverage; or
(c) Any amendment, modification or termination of any
existing, or entry into any new, Material Contract or Permit that has had
or may reasonably be expected to have a material adverse effect on the
assets, liabilities, business, financial condition, results of operations
or prospects of Western;
(d) Any disposition by Western of an asset the lack of
which has had or may reasonably be expected to have a material adverse
effect on the business, financial condition, results of operations or
prospects of Western; or
(e) Any direct or indirect redemption,
purchase or other acquisition by Western of any Equity Securities or any
declaration, setting aside or payment of any dividend or other distribution
on or in respect of Western Stock whether consisting of money, other
personal property, real property or other things of value.
4.15 Minute Books. The minute books of Western accurately
reflect all material actions duly taken by shareholders, boards of
directors and committees and contain true and complete copies of its
Charter Documents and all amendments thereto.
4.16 Accounting Records; Data Processing. Western has
records that, in all material respects, fairly reflect its transactions,
and accounting controls sufficient to ensure that such transactions are in
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all material respects (a) executed in accordance with management's general
or specific authorization; and (b) recorded in conformity with generally
accepted accounting principles. Except as set forth in Schedule 4.16, the
procedures and equipment, including, without limitation, the data
processing equipment, data transmission equipment, related peripheral
equipment and software, used by Western in the operation of its business
(including any disaster recovery facility) to generate and retrieve such
records are adequate in relation to the size and complexity of the business
of Western.
4.17 Insurance. Schedule 4.17 sets forth all insurance
policies and bonds maintained by Western. Except as set forth on Schedule
4.17, (a) Western is, and at all times within five years hereof has been,
insured with insurers and has insurance coverage adequate to insure against
all risks normally insured against by companies in similar businesses and
of comparable size; (b) Western is not in default under any policy of
insurance or bond such that it could be cancelled and all such insurance
policies and bonds maintained by Western are in full force and effect and,
except for expirations in the ordinary course, will remain so through and
after the Effective Time of the Merger; and (c) Western has filed claims
with, or given notice of claims to, its respective insurers with respect to
all material matters and occurrences for which it believes it has coverage.
Western has furnished CVB and Chino Valley with true and correct copies of
all insurance policies and bonds identified on Schedule 4.17, including all
amendments and supplements thereto.
4.18 Employee Benefit Plans and Employment and Labor
Contracts.
(a) Schedule 4.18, sets forth and describes all employee
benefit plans and any collective bargaining agreements, labor contracts and
employment agreements in which Western participates, or by which it is
bound, including, without limitation, (i) any profit sharing, deferred
compensation, bonus, stock option, stock purchase, pension, retainer
consulting, retirement, welfare or incentive plan or agreement whether
legally binding or not, (ii) any plan providing for "fringe benefits" to
its employees, including but not limited to vacation, sick leave, medical,
hospitalization, life insurance and other insurance plans, and related
benefits, (iii) any written employment agreement and any other employment
agreement not terminable at will, or (iv) any other "employee benefit plan"
(within the meaning of Section 3(3) of ERISA). Except as set forth in
Schedule 4.18, (v) there are no negotiations, demands or proposals that are
pending or threatened that concern matters now covered, or that would be
covered, by any employment agreements or employee benefit plans; (w)
Western is in compliance with the
requirements prescribed by any and all Rules currently in effect including
but not limited to ERISA and the Code applicable to all such employee
benefit plans; (x) Western is in compliance in all material respects with
all other Rules applicable to employee benefit plans and employment
agreements; (y) Western has performed all of its obligations under all such
employee benefit plans and employment agreements; and (z) there are no
actions, suits or claims (other than routine claims for benefits) pending
or threatened against any such employee benefit plans and employment
agreements or the assets of such plans, and to the best knowledge of
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Western, no facts exist which could give rise to any actions, suits or
claims (other than routine claims for benefits) against such plans or the
assets of such plans.
(b) The "employee pension benefit plans" (within the
meaning of Section 3(2) of ERISA) described on Schedule 4.18 have been duly
authorized by the Board of Directors of Western. Except as set forth in
Schedule 4.18, each such plan and associated trust is qualified in form and
operation under Section 401(a) and exempt from tax under Section 501(a) of
the Code, respectively, and no event has occurred that will or could give
rise to disqualification of any such plan or loss of the exemption from tax
of any such trust under said Sections. No event has occurred that will or
could subject any such plans to tax under Section 511 of the Code. None of
such plans has engaged in a merger or consolidation with any other plan or
transferred assets or liabilities from any other plan. No prohibited
transaction (within the meaning of Section 409 or 502(i) of ERISA or
Section 4975 of the Code) or party-in-interest transaction (within the
meaning of Section 406 of ERISA) has occurred with respect to any of such
plans. No employee of Western has engaged in any transactions which could
subject Western to indemnify such person against liability. All costs of
plans have been provided for on the basis of consistent methods in
accordance with sound actuarial assumptions and practices. No employee
benefit plan has incurred any "accumulated funding deficiency" (as defined
in ERISA), whether or not waived, taking into account contributions made
within the period described in Section 412(c)(10) of the Code; nor are
there any unfunded amounts under any employee benefit plan; nor has Western
failed to make any contributions or pay any amount due and owing as
required by law or the terms of any employee benefit plan or employment
agreement. Subject to amendments that are required by the Tax Reform Act
of 1986 and later legislation, since the last valuation date for each
employee pension benefit plan, there has been no amendment or change to
such plan that would increase the amount of benefits thereunder.
(c) Western does not sponsor or participate in, and has
not sponsored or participated in, any employee benefit pension plan to
which Section 4021 of ERISA applies that would create a liability under
Title IV of ERISA.
(d) Western does not sponsor or participate in, and has
not sponsored or participated in, any employee benefit pension plan that is
a "multi-employer plan" (within the meaning of Section 3(37) of ERISA) that
would subject such Person to any liability with respect to any such plan.
(e) All group health plans of Western (including any
plans of affiliates of Western that must be taken into account under
Section 162(i) or (k) of the Code as in effect immediately prior to the
Technical and Miscellaneous Revenue Act of 1988 and Section 4980B of the
Code) have been operated in compliance with the group health plan
continuation coverage requirements of Section 4980B of the Code to the
extent such
requirements are applicable.
(f) There have been no acts or omissions by Western that
have given rise to or may give rise to fines, penalties, taxes, or related
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charges under Sections 502(c) or (i) or 4071 of ERISA or Chapter 43 of the
Code.
(g) Except as described in Section 4.18(j), Western does
not maintain any employee benefit plan or employment agreement pursuant to
which any benefit plan or other payment will be required to be made by
Western or pursuant to which any other benefit will accrue or vest in any
director, officer or employee of Western, in either case as a result of the
consummation of the transactions contemplated by the Agreement.
(h) No "reportable event," as defined in ERISA, has
occurred with respect to any of the employee benefit plans.
(i) All amendments required to bring each of the
employee benefit plans into conformity with all of the provisions of ERISA
and the Code and all other applicable laws, rules and regulations have been
made.
(j) Schedule 4.18 sets forth the name of each director,
officer or employee of Western entitled to receive any benefit or any
payment of any amount under any existing employment agreement, severance
plan or other benefit plan as a result of the consummation of any
transaction contemplated in this Agreement, including the Merger, and with
respect to each such person, the nature of such benefit or the amount of
such payment, the event triggering the benefit or payment, and the date of,
and parties to, such employment agreement, severance plan or other benefit
plan; provided, however, Western shall not make any "excess parachute
payments" to any "disqualified individuals" within the meaning of Section
280G of the Code. Western has furnished CVB and Chino Valley with true and
correct copies of true copies of all documents with respect to the plans
and agreements referred to in Schedule 4.18 delivered as of the date of the
Agreement, including all amendments and supplements thereto, and all
related summary plan descriptions. For each of the employee pension
benefit plans of Western referred to in Schedule 4.18 delivered as of the
date of the Agreement, Western has furnished CVB and Chino Valley with true
and correct copies of (i) a copy of the Form 5500 which was filed in each
of the three most recent plan years, including without limitation, all
schedules thereto and all financial statements with attached opinions of
independent accountants; (ii) the most recent determination letter from the
Internal Revenue Service; (iii) the statement of assets and liabilities as
of the most recent valuation date; and (iv) the statement of changes in
fund balance and in financial position or the statement of changes in net
assets available for benefits under each of said plans for the most
recently ended plan year. The documents referred to in subdivisions (iii)
and (iv) fairly present the financial condition of each of said plans as of
and at such dates and the results of operations of each of said plans, all
in accordance with generally accepted accounting principles applied on a
consistent basis.
4.19 Investments. Except for investments that have matured
or been sold, Schedule 4.19 sets forth all of the investments reflected in
the balance sheet of Western dated December 31, 1992 contained in the
Western Financial Statements and all of the investments made since December
31, 1992. Except as set forth in Schedule 4.19, all such investments are
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legal
investments under applicable Rules and none of such investments is subject
to any restriction, contractual, statutory or other, that would materially
impair the ability of the entity holding such investment to dispose freely
of any such investment at any time, except restrictions on the public
distribution or transfer of such investments under the Securities Act or
state securities laws.
4.20 Broker's or Finder's Fees. Except as set forth below,
no agent, broker, investment or commercial banker, or other Person acting
on behalf of Western, is or will be entitled to any broker's or finder's
fee or any other commission or similar fee directly or indirectly in
connection with any of the transactions contemplated in this Agreement,
including the Merger and the Consolidation, except that Western has
retained Geiger/Kochaji & Associates ("Geiger") to act as its
representative in connection with the Merger and the Consolidation and the
transactions contemplated thereby and has agreed to pay Geiger a fee equal
to $144,500, subject to consummation of the transactions contemplated
hereby. Western represents and warrants that the obligation to pay Geiger
any monies resulting from its engagement in connection with the Merger and
the Consolidation is the sole obligation of Western.
4.21 Compliance with Rules. To the best knowledge of
Western, Western has conducted its business in accordance with applicable
Rules, except for such violations and noncompliance that have not had, and
that are not reasonably expected to have, a material adverse effect on the
business, financial condition, results of operations or prospects of
Western. To the best knowledge of Western, Western's compliance under the
CRA should not constitute grounds for either the denial by any bank
regulatory authority of any application to consummate the transactions
contemplated by this Agreement or the imposition of a materially burdensome
condition in connection with the approval of any such application.
4.22 Certain Interests. Schedule 4.22 sets forth a
description of each instance in which an officer or director of Western (a)
has any material interest in any property, real or personal, tangible or
intangible, used by or in connection with the business of Western; (b) is
indebted to Western except for normal business expense advances; or (c) is
a creditor (other than as a Deposit holder) of Western except for amounts
due under normal salary and related benefits or reimbursement of ordinary
business expenses. Except as set forth in Schedule 4.22, all such
arrangements are arm's length transactions pursuant to normal commercial
terms and conditions.
4.23 Extensions of Credit. Schedule 4.23 sets forth a
description (a) by type and classification, if any, of each loan, lease
other extension of credit and commitment to extend credit; (b) by type and
classification of all loans, leases, other extensions of credit and
commitments to extend credit that have been classified by its bank
examiners or auditors (external or internal) as "Watch List,"
"Substandard," "Doubtful," "Loss" or any comparable classification; and (c)
all consumer loans as to which any payment of principal, interest or other
amount is 90 days or more past due.
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4.24 Operating Losses. Schedule 4.24 sets forth any
Operating Loss (as defined below) that has occurred at Western during the
period after December 31, 1992. Except as set forth on Schedule 4.24, since
December 31, 1992, to the knowledge of Western, no event has occurred, and
no action has been taken or omitted to be taken by any employee of Western
that has
resulted in the incurrence by Western of an Operating Loss or that might
reasonably be expected to result in the incurrence by Western of an
Operating Loss after December 31, 1992, which, net of any insurance
proceeds payable in respect thereof, exceeds, or would exceed $5,000 by
itself or $10,000 when aggregated with all other Operating Losses during
such period. For purposes of this Agreement, "Operating Loss" means any
loss resulting from cash shortages, lost or misposted items, disputed
clerical and accounting errors, forged checks, payment of checks over stop
payment orders, counterfeit money, wire transfers made in error, theft,
robberies, defalcations, check kiting, fraudulent use of credit cards or
electronic teller machines, civil money penal ties, fines, litigation,
claims, arbitration awards or other similar acts or occurrences.
4.25 Powers of Attorney. Western has not granted any Person
a power of attorney or similar authorization that is presently in effect or
outstanding.
4.26 Offices and ATMs. Schedule 4.26 sets forth the
headquarters of Western (identified as such) and each of the offices and
automated teller machines ("ATMs") maintained and operated by Western
(including, without limitation, representatives and loan production offices
and operations centers) and the location thereof. Except as set forth on
Schedule 4.26, Western maintains no other office or ATM and conducts
business at no other location, and Western has not applied for nor received
permission to open any additional branch nor operate at any other location.
4.27 Disclosure Documents and Applications. None of the
information supplied or to be supplied by or on behalf of Western ("Western
Supplied Information") for inclusion in (a) the proxy statement or other
materials and documents ("Proxy Statement") to be mailed to the
shareholders of Western in connection with obtaining the approval of the
shareholders of Western of this Agreement, the Consolidation and the other
transactions contemplated hereby, and (b) any other documents to be filed
with the FRB, the Comptroller, the FDIC, the Superintendent or any other
Governmental Entity in connection with the transactions contemplated in
this Agreement will, at the respective times such documents are filed or
become effective, or with respect to the Proxy Statement, when mailed,
contain any untrue statement of a material fact, or omit to state any
material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading.
4.28 Accuracy and Currentness of Information Furnished. The
representations and warranties made by Western hereby or in the schedules
hereto contain no statements of fact which are untrue or misleading, or
omit to state any material fact which is necessary under the circumstances
to prevent the statements contained herein or in such schedules from being
misleading. Western hereby covenants that it shall, not later than the
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15th day of each calendar month between the date hereof and the Closing
Date, amend or supplement the schedules prepared and delivered pursuant to
this Article 4 to ensure that the information set forth in such schedules
accurately reflects the then-current status of Western. Western shall
further amend or supplement the schedules as of the Closing Date if
necessary to reflect any additional changes in the status of Western.
4.29 Effective Date of Representations, Warranties, Covenants
and Agreements. Each representation, warranty, covenant and agreement of
Western set forth in this Agreement
shall be deemed to be made on and as of the date hereof and as of the
Closing Date.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF CVB AND CHINO VALLEY
CVB and Chino Valley represent and warrant to Western as follows:
5.1 Organization, Standing and Power of CVB and Chino Valley.
CVB is duly organized and existing as a corporation under the laws of the
State of California and is registered as a bank holding company under the
Bank Holding Company Act of 1956, as amended. Chino Valley is duly
organized and existing as a corporation under the laws of the State of
California and is authorized by the Superintendent to conduct a general
banking business. CVB and Chino Valley have all requisite corporate power
and authority to own, lease and operate their respective properties and
assets and to carry on their respective businesses as presently conducted.
5.2 Authority of CVB and Chino Valley. The execution and
delivery by CVB and Chino Valley of this Agreement and by Chino Valley of
the Agreement of Merger and the consummation of the transactions
contemplated hereby have been duly and validly authorized by all necessary
corporate action on the part of CVB and Chino Valley and this Agreement is
a valid and binding obligation of CVB and Chino Valley, enforceable in
accordance with its terms, except as the enforceability thereof may be
limited by bankruptcy, insolvency, moratorium or other similar laws
affecting the rights of creditors of California banks generally, by general
equitable principles and by Section 8(b)(6)(D) of the Federal Deposit
Insurance Act, 18 U.S.C. 1818(b)(6)(D).
5.3 No Conflicts; Defaults. The execution, delivery and
performance of this Agreement by CVB and Chino Valley, and the Agreement of
Merger by Chino Valley, the consummation of the transactions contemplated
herein and compliance by CVB and Chino Valley with any provision hereof
will not (a) conflict with their respective Charter Documents; (b) except
for the prior approval of the FRB, the Comptroller, the FDIC and the
Superintendent, require any Consents; or (c) subject to obtaining the
Consents referred to in subsection (b) of this Section 5.3 and the
expiration of any required waiting period, violate any Rules to which CVB
or Chino Valley is subject.
5.4 Accuracy of Information Furnished. None of the
information supplied or to be supplied by or on behalf of CVB or Chino
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Valley ("CVB Supplied Information") for inclusion in
(a) the Proxy Statement, and (b) any other documents to be filed with the
FRB, the Comptroller, the FDIC, the Superintendent or any Governmental
Entity in connection with the transactions contemplated in this Agreement
will, at the respective times such documents are filed or become effective,
or with respect to the Proxy Statement when mailed, contain any untrue
statement of a material fact, or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein,
in light of the circumstances under which they were made, not misleading.
5.5 Adequacy of Capital. To the best knowledge of CVB, CVB
has as of the date of this Agreement sufficient capital and the financial
resources to consummate the transactions contemplated by this Agreement,
including the Merger.
5.6 Compliance with Rules. To the best knowledge of CVB and
Chino Valley, neither CVB nor Chino Valley is in default under, or in
violation of, any Rule where such default or violation would cause either
of them not to be able to consummate the transactions contemplated by this
Agreement, including the Merger.
5.7 Authority of New Bank. The execution and delivery by New
Bank of the Agreement to Consolidate and, subject to the requisite approval
of the shareholder of New Bank, the consummation of the transactions
completed thereby will be duly and validly authorized by all necessary
corporation action on the part of New Bank, and the Agreement to
Consolidate will be upon execution by the parties thereto a valid and
binding obligation of New Bank, enforceable in accordance with its terms,
except as the enforceability thereof may be limited by bankruptcy,
insolvency, moratorium or other similar laws affecting the rights of
creditors generally and by general equitable principles or by the
provisions of Section 8(b)(6)(D) of the Federal Deposit Insurance Act, 12
U.S.C. Section 1818(b)(6)(D). Except as set forth in Schedule 5.7, neither
the execution and delivery by New Bank of the Agreement to Consolidate, nor
the consummation of the transactions contemplated therein, nor compliance
by New Bank with any of the provisions thereof will (a) conflict with or
result in a breach of any provision of its Charter Documents, (b) except
for approval by the shareholder of New Bank and the prior approval of the
FRB, the Comptroller or the FDIC, require any Consents; (c) result in the
creation or imposition of any Encumbrance on any of the properties or
assets of New Bank; or (d) subject to obtaining the Consents referred to in
subsection (b) of this Section 5.7, and the expiration of any waiting
period, violate any Rules to which New Bank is subject.
ARTICLE 6
CONDUCT AND TRANSACTIONS PRIOR TO
EFFECTIVE TIME OF MERGER
6.1 Access to Information. (a) Western will authorize and
permit CVB and Chino Valley, their representatives, accountants and counsel
(collectively "Representatives"), to conduct complete and full reviews of
the business, operations, assets and liabilities of Western at such dates
as CVB and Chino Valley may from time to time request. Without limiting
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the foregoing, CVB and Chino Valley and their Representatives shall have
the right (i) to review all of Western's properties, books, records, loans
and leases, operating reports, audit reports, operation instructions and
procedures, tax returns, tax settlement letters, contracts and documents,
and all other information with respect to its business affairs, financial
condition, assets and liabilities, (ii) to make copies of such books,
records and other documents and (iii) to discuss its business affairs,
condition (financial and otherwise), assets and liabilities with Western's
directors, officers, accountants and counsel, as CVB and Chino Valley
consider necessary or appropriate for the purposes of familiarizing
themselves with the business and operations of Western, conducting an
evaluation of the assets and liabilities of Western, determining whether to
proceed with the transactions contemplated by this Agreement, determining
the accuracy of the representations and warranties set forth in Article 4,
obtaining any necessary orders, consents or approvals of the transactions
contemplated by this Agreement by any Governmental Entity. Any such review
shall be conducted in cooperation with the officers of Western and in such
a manner to minimize any disruption of, or interference with, the normal
business operations of Western. In addition, Western will cause Deloitte &
Touche to make available to CVB and Chino Valley and their Representatives
such personnel, work papers and other documentation of Deloitte & Touche,
relating to its work papers and its audits and examinations of the books
and records of Western or the tax returns of Western as may be requested by
CVB and Chino Valley in connection with their review of the foregoing
matters.
(b) In addition to the requirements of subsection (j) of
Section 6.3, a Representative of CVB and Chino Valley, selected by CVB and
Chino Valley in their sole discretion, shall be authorized and permitted to
review each loan, lease, or other credit originated by Western after the
date hereof, and all information associated with such loan, lease or other
credit within three Business Days of such origination.
(c) A Representative of CVB and Chino Valley, selected by
CVB and Chino Valley in their sole discretion, shall be permitted by
Western to attend all regular and special Board of Directors' and committee
meetings of Western from the date shareholder approval pursuant to Section
6.7 has been obtained until the Effective Time of the Consolidation;
provided, however, that the attendance of such Representative shall not be
required at any meeting, or portion thereof, for the sole purpose of
discussing the transactions contemplated by this Agreement or the
obligations of Western under this Agreement.
6.2 Material Adverse Changes; Reports; Financial
Statements; Filings.
(a) Western will promptly notify CVB and Chino Valley as
provided in Section 11.11 (i) of any event which may materially and
adversely affect the business, financial condition, results of operations
or prospects of Western; (ii) in the event it determines it is possible
that the conditions to the performance of CVB and Chino Valley set forth in
Sections 8.1 and 8.2 may not be satisfied; or (iii) any event, development
or circumstance that, to the best knowledge of Western, will or, with the
passage of time or the giving of notice or both, is reasonably expected to
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result in the loss to Western of the ser vices of any Executive Officer of
Western.
(b) Western will furnish to CVB and Chino Valley as
provided in Section 11.11, as soon as practicable, and in any event within
five Business Days after it is prepared or becomes available to Western,
(i) a copy of any report submitted to the Board of Directors of Western or
committee thereof and access to the working papers related thereto and
copies of other operating or financial reports prepared for management of
any of its business and access to the working papers related thereto;
provided, however, that Western need not furnish CVB and Chino Valley
communications of their legal counsel regarding Western's rights against
and obligations to CVB and Chino Valley under this Agreement; (ii) copies
of all Western Filings; (iii) monthly unaudited balance sheets and
statements of earnings for Western; and (iv) such other reports as CVB and
Chino Valley may reasonably request relating to Western.
(c) Each of the financial statements delivered pursuant to
subsection (b)(iii) of this Section 6.2 (i) shall be prepared in accordance
with generally accepted accounting principles on a basis consistent with
that of the audited Western Financial Statements; (ii) shall set forth
adequate reserves for loan losses and other contingencies; and (iii) shall
be accompanied by a certificate of the Chief Financial Officer of
Western to the effect that such financial statements fairly present the
financial condition and results of operations of Western for the periods
covered, and reflect all adjustments (which consist only of normal
recurring adjustments) necessary for a fair presentation thereof.
(d) The calculation of Net Income/Losses shall be made in
accordance with generally accepted accounting principles on a basis
consistent with that of the audited Western Financial Statements.
(e) Western agrees that through the Effective Time of the
Consolidation, each of its filings, including those referred to in Section
4.9, (i) will comply in all material respects with all of the Rules
enforced or promulgated by the Governmental Entity with which it will be
filed; and (ii) will not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they
are made, not misleading. Any financial statement contained in any of such
filings that is intended to present the financial position of the entity to
which it relates will fairly present the financial position of such entity
and will be prepared in accordance with generally accepted accounting
principles or banking regulations consistently applied during the period
involved.
6.3 Limitation on Western's Conduct Prior to Closing. From
and after the date of this Agreement, unless (i) otherwise provided in this
Agreement, (ii) required by any applicable Rule or (iii) consented to by
CVB and Chino Valley (which consent shall be deemed granted, except with
respect to subsection (j) of this Section 6.3, if within 5 days of CVB and
Chino Valley's receipt of a written notice of a request for prior consent,
written notice of objection is not received by Western), Western agrees
that:
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(a) Ordinary Course. Western shall conduct its affairs
in the ordinary course of business consistent with past practice and will
use all reasonable efforts to preserve its relationships with customers,
suppliers and others having business dealings with it.
(b) Preservation of Permits. Western shall not amend,
modify, terminate or fail to renew or preserve its Permits.
(c) Preservation of Contracts. Western shall not amend,
modify, or, except as they may expire in accordance with their terms,
terminate any Material Contract or any lease or other agreement relating to
the Real Property or materially default in the performance of any of its
obligations under any Material Contract or any lease or other agreement
relating to the Real Property.
(d) Restrictions on New Contracts. Western shall not
enter into any Material Contract or any lease or other agreement relating
to the Real Property, except (i) Deposits and short-term debt securities
(obligations maturing within one year) issued in the ordinary course of
business and consistent with past practice; (ii) obligations arising out
of, incurred in con nection with, or related to the consummation of this
Agreement; (iii) commitments to make loans or other extensions of credit in
compliance with subsections (j) and (k) below; (iv) loan sales in the
ordinary course of business and consistent with past prac tice, without any
recourse except to a reserve account funded by an interest rate spread
otherwise payable to the servicer of the
loans sold, provided that no such commitment to sell loans shall extend
beyond the Effective Time of the Consolidation; and (v) in the ordinary
course of business and consistent with past practice, purchases of interest
in loans or purchases of loan portfolios originated and serviced (if not by
Western) by a nationally recognized originator and servicer, the debt of
which is of investment grade.
(e) Maintenance of Insurance. Western shall
not terminate or unilaterally fail to renew any existing insurance coverage
or bonds.
(f) Restrictions on Compensation. Western
shall not grant any general or uniform increase in the rates of pay of
employees or employee benefits or any increase in salary, employee benefits
or compensation of any officer, employee, director, agent or any Person or
pay any bonus to any Person, except as required by any existing written
employment agreement; provided, however, Western may pay bonuses to
employees consistent with past practice.
(g) Restrictions on Transfer of Assets.
Western shall not sell, transfer, mortgage, encumber or otherwise dispose
of any assets or release or waive any claim, except in the ordinary course
of business and consistent with past practice or as required by any
existing contract or for ordinary repairs, renewals or replacements.
(h) Grant or Issuance of Securities;
Distributions; Reclassifications. Western shall not acquire for value or
grant, issue, sell or redeem any Equity Securities or debt securities of
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Western, or declare, issue or pay any dividend or other distribution of
assets, whether consisting of money, other personal property, real property
or other things of value, to the shareholders of Western, or split, combine
or reclassify any shares of its capital stock or other Equity Securities;
provided, however, that Western may issue Western Stock upon the exercise
Western Options.
(i) Charter Documents. Western shall not
amend or modify any of its Charter Documents.
(j) Extensions of Credit. Until the date
which is 45 days from the date of this Agreement, Western shall deliver to
CVB and Chino Valley on a weekly basis a report setting forth all
extensions of credit made by Western for the preceding week. Thereafter,
Western shall not grant or commit to grant any loan or other extension of
credit, if such loan or other extension of credit, together with all other
credit then outstanding to the same Person and all Affiliates of such
Person, would exceed $25,000, prior to receiving CVB and Chino Valley's
Consent. For extensions of credit in an amount of $75,000 or less, consent
shall be deemed granted if within one Business Day of written notice
delivered to CVB and Chino Valley's designee, a written notice of objection
is not received by Western. For extensions of credit in excess of $75,000,
consent shall be deemed granted if within two Business Days of written
notice delivered to CVB and Chino Valley's designee, a written notice of
objection is not received by Western.
(k) Credit Standards. Western shall not make
its credit underwriting policies, standards or practices relating to the
making of loans and other extensions of credit, or com mitments to make
loans and other extensions of credit, less stringent than those in effect
on December 31, 1992.
(l) Capital Expenditures. Western shall not
make any capital expenditures, or commitments with respect thereto, except
in the ordinary course of business and consistent with past practice.
(m) No Extraordinary Payments. Western shall
not make special or extraordinary payments to any Person, except as
contemplated by Section 6.3(f).
(n) Investments. Western shall not make any
investment, by purchase of stock or securities, contributions to capital,
property transfers, purchases of any property or assets or otherwise, in
any other Person, except in the ordinary course of business and consistent
with past practice.
(o) Compromise of Taxes. Western shall not
(i) compromise or otherwise settle or adjust any assertion or claim of a
deficiency in taxes (or interest thereon or penalties in connection
therewith); (ii) file any appeal from an asserted deficiency; (iii) file or
amend any United States federal, foreign, state or local tax return; or
(iv) make any tax election or change any method or period of accounting
unless required by generally accepted accounting principles or United
States federal Rules.
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(p) Employee Benefits. Western shall not
enter into or consent to any new employment agreement or other employee
benefit arrangement, or amend or modify any employment agreement or other
employee benefit arrangement in effect on the date of this Agreement to
which Western is a party or bound.
(q) Powers of Attorney. Western shall not
grant any Person a power of attorney or similar authority, except in
accordance with a written policy previously disclosed to CVB and Chino
Valley.
(r) Offices. Western shall not open or close
any branch or other office at which the business of Western is or will be
conducted.
(s) No Agreement to Forbidden Actions.
Western shall not agree or make any commitment to take any actions
prohibited by this Section 6.3.
6.4 Certain Loans and Other Extension of Credit. Western will
promptly inform CVB and Chino Valley of the amounts and categories of any
loans, leases or other extensions of credit of Western that have been
classified by any bank supervisory authority, by any unit of Western or by
any other Person as "Watch List," "Substandard," "Doubtful," "Loss" or any
comparable classification. Western will furnish to CVB and Chino Valley,
as soon as practicable, and in any event within 10 days after the end of
each calendar month, schedules including a listing of the following:
(a) classified credits, showing with respect
to each such credit the classification category, credit type and office;
(b) nonaccrual credits, showing with respect
to each such credit the credit type and office;
(c) accrual exception credits that are
delinquent 90 or more days and have not been placed on nonaccrual status,
showing with respect to each such credit the credit type and office;
(d) delinquent credits, showing with respect
to each such credit the credit type, office and an aging schedule broken
down into 30-59, 60-89, 90-119 and 120+ day categories;
(e) loan and lease participations, stating,
with respect to each, whether it was purchased or sold, the loan or lease
type, and the office;
(f) loans or leases (including any
commitments) by Western to any director, officer, or employee of Western,
or any shareholder holding 5% or more of the Western Stock, including with
respect to each such loan or lease, the identity and, to the best knowledge
of Western, the relation of the borrower to Western, the loan or lease type
and the outstanding and undrawn amounts;
(g) letters of credit, showing with respect to
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each letter of credit the credit type and office;
(h) loans or leases charged off during the
previous month, showing with respect to each such loan or lease, the credit
type and office;
(i) loans or leases written down during the
previous month, including with respect to each such loan or lease, the
credit type and office;
(j) other real estate or assets owned, stating
with respect to each its credit type;
(k) a reconciliation of the allowance for loan
and lease losses, identifying specifically the amount and sources of all
additions and reductions to the allowance (which may be by reference to
specific portions of another schedule furnished pursuant to this Section
6.4 and, in the case of unallocated adjustments, shall disclose the
methodology and calculations through which the amount of such adjustment
was determined);
(l) extensions of credit originated on or
after the date of the schedule previously provided to CVB and Chino Valley
(or, if it is the first such schedule, the date of this Agreement) and
before the date of the schedule in which reported, showing with respect to
each, the credit type and the office; and
(m) renewals or extensions of maturity of
outstanding extensions of credit, showing with respect to each, the credit
type and the office.
6.5 No Solicitation, etc.
(a) Western shall not, and will cause each of
its officers, directors, employees, agents, legal and financial advisors
and Affiliates not to, directly or indirectly, make, solicit, encourage,
initiate or enter into any agreement or agreement in principle, or announce
any intention to do any of the foregoing, with respect to any of Western's
business and properties or any of Western's Equity Securities or debt secur
ities, whether by purchase, merger (other than by CVB and Chino Valley),
purchase of assets, tender offer or otherwise (an "Alternative
Transaction").
(b) Western shall not, and will cause each of
its officers, directors, legal and financial advisors, agents and
Affiliates not to, directly or indirectly, participate in any
negotiations or discussions regarding, or furnish any information with
respect to, or otherwise cooperate in any way in connection with, or assist
or participate in, facilitate or encourage, any effort or attempt to effect
or seek to effect, any Alternative Transaction with or involving any Person
other than CVB and Chino Valley, unless Western shall have received an
unsolicited written offer from a Person other than CVB and Chino Valley to
effect an Alternative Transaction and the Board of Directors of Western is
advised in writing by outside legal counsel that in the exercise of the
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fiduciary obligations of the Board of Directors such information should be
provided to or such discussions or negotiations undertaken with the Person
submitting such unsolicited written offer.
(c) Western will promptly communicate to CVB and Chino
Valley the terms of any proposal which it may receive in respect of any
Alternative Transaction and will keep CVB and Chino Valley informed as to
the status of any actions, including negotiations or discussions, taken
pursuant to subsection (b) of this Section 6.5.
6.6 Schedules of Western. Promptly in the case of material
matters, and not less than monthly in the case of all other matters,
Western shall amend or supplement the schedules provided for herein as
necessary so that the information contained therein accurately reflects the
then current status of Western and shall transmit copies of such amendments
or supple ments to CVB and Chino Valley in accordance with Section 11.11.
6.7 Shareholder Approval. Promptly after the execution of
this Agreement, Western shall prepare the Proxy Statement and take all
action necessary in accordance with applicable Rules and its Charter
Documents to submit to its shareholders for approval the Agreement, the
Agreement to Consolidate and the other transactions contemplated hereby. In
connection with such submission, the Board of Directors shall recommend
shareholder approval of all the matters referred to in this Section 6.7 and
Western shall use its best efforts to obtain such shareholder approval.
Western shall complete the solicitation of shareholder approval of the
matters referred to in this Section 6.7 prior to March 31, 1994.
6.8 Compliance with Rules. Western shall comply with the
requirements of all applicable Rules, the noncompliance with which would
materially and adversely affect the assets, liabilities, business,
financial condition, results of operations or prospects of Western.
6.9 Disposition of Employee Benefit Plans. Western shall
take all actions requested by CVB and Chino Valley to cause, on or before
the Closing Date, (i) the termination of all of its employee benefits
plans, programs and arrangements, including the Western Deferred
Compensation Plan and (ii) the payment of all benefits payable under such
plans, programs and arrangements.
6.10 Cancellation of Western Options. Western shall use its
best efforts to cancel and terminate all outstanding Western Options on
terms and conditions satisfactory to CVB and Chino Valley on or before the
Closing Date.
6.11 Termination of Western Employment Agreements. Western
shall take all actions necessary to terminate all Western Employment
Agreements on terms and conditions satisfactory to CVB and Chino Valley on
or before the Closing Date.
6.12 Action on Lease. Western shall take all actions
necessary to ensure the validity and enforceability of the Western Lease
following the Closing and shall obtain any necessary consents or
assignments required thereunder as a result of the Merger and/or
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Consolidation.
6.13 Execute Agreement to Consolidate. As soon as possible
after receipt of approval of the Superintendent to organize New Bank,
Western shall execute the Agreement to Consolidate.
ARTICLE 7
FURTHER COVENANTS OF THE PARTIES
7.1 Execution of Agreement to Consolidate. As soon as
practicable after receipt of approval of the Superintendent to form New
Bank, CVB shall cause New Bank to execute the Agreement to Consolidate.
7.2 Filings, Consents and Insurance.
(a) The Parties will cooperate and use all reasonable
efforts to make all registrations, filings and applications, to give all
notices and to obtain all Consents necessary or desirable on the part of
the Parties for the consummation of the Consolidation, the Merger, and the
other transactions contemplated in this Agreement.
(b) To the extent that the Consent of a third party ("Third
Party Consent") with respect to any contract, agreement, license,
franchise, lease, commitment, arrangement, permit or release that is
material to the business of Western or that is contemplated in this
Agreement is required in connection with the Consolidation, the Merger or
the transactions contemplated in this Agreement, Western shall use all
reasonable efforts to obtain such Third Party Consent prior to the
Effective Time of the Consolidation.
(c) To the extent that a Third Party Consent identified on
Schedule 5.3 is required in connection with the Consolidation, the Merger
or the transactions contemplated by this Agreement, CVB and Chino Valley
shall use all reasonable efforts to obtain such Third Party Consent prior
to the Effective Time of the Consolidation.
(d) To the extent that a Third Party Consent that is
contemplated in this Agreement is required to consummate the Consolidation,
the Merger or the transactions contemplated in this Agreement, CVB and
Chino Valley shall use all reasonable efforts to obtain such Third Party
Consent prior to the Effective Time of the Merger.
(e) The Parties shall use all reasonable efforts to obtain
insurance policies and bonds for the Surviving Bank that are comparable in
terms of both cost and coverage to those maintained by or with respect to
Chino Valley or its officers and directors prior to the Effective Time of
the Merger.
7.3 Preservation of Employment Relations Prior to Effective
Time. Western will consult with CVB and Chino Valley concerning, and
Western will use all reasonable efforts to keep available to CVB and Chino
Valley, the services of the officers and employees of Western prior to the
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Effective Time of the Consolidation. Prior to the Effective Time of the
Consolidation,
CVB or Chino Valley will notify Western of the employees CVB desires to
retain as employees of the Surviving Bank. Western agrees that, following
such notification, it will lay off, effective immediately prior to the
Effective Time of the Consolidation, all remaining employees. Western
agrees to pay such laid-off employees (other than persons who are parties
to Western Employment Agreements) an amount equal to two week's salary at
the employee's then current weekly rate in consideration for a release from
the employee of all known and unknown claims against Western, New Bank, the
Consolidated Association, CVB, Chino Valley or the Surviving Bank, or any
of them. Western further agrees that all such employees will be laid off
in accordance with Western's existing policies and practices. CVB and
Chino Valley will use their best efforts to offer employment with the
Surviving Bank to all qualified Western officers and employees. Nothing in
this Section 7.3, however, shall obligate CVB and Chino Valley to retain or
offer employment to any officer or employee of Western.
ARTICLE 8
CONDITIONS PRECEDENT TO CONTEMPLATED TRANSACTIONS
8.1 Conditions to Each Party's Obligation to Close. The
respective obligations of the Parties to consummate the trans actions
contemplated hereby are subject to the satisfaction or waiver (where
permissible) at or prior to the Closing Date of each of the following:
(a) The Agreement, the Consolidation, and the other
transactions contemplated hereby shall have received all requisite
approvals of the shareholders of Western and New Bank.
(b) No Rule shall be outstanding or threatened by any
Governmental Entity which prohibits or restricts the effectuation of, or
threatens to invalidate or set aside, the Consolidation, unless counsel to
the Party against whom such action or proceeding was instituted or
threatened renders to the other Party or Parties hereto a favorable opinion
that such Rule is without merit.
(c) To the extent required by applicable Rule, all Consents
of any Governmental Entity, including, without limi tation, those of the
FRB, the Comptroller, the FDIC and Superintendent, shall have been obtained
or granted for the Consolidation, and all applicable waiting periods under
all Rules shall have expired.
8.2 Additional Conditions to Obligations of CVB and Chino Valley
to Close. The obligations of CVB and Chino Valley to consummate the
transactions contemplated hereby are subject to the satisfaction or waiver
(where permissible) at or prior to the Closing Date of each of the
following conditions:
(a) No Rule shall be outstanding or threatened by any
Governmental Entity which prohibits or restricts the effectuation of, or
threatens to invalidate or set aside, the Merger or which would not permit
215
the business presently carried on by Western, CVB or Chino Valley to
continue unimpaired following the Closing Date.
(b) To the extent required by applicable Rule, all Consents
of any Governmental Entity, including, without limi tation, those of the
FRB, the Comptroller, the FDIC and Superintendent, shall have been obtained
or granted for the
Merger and the other transactions contemplated hereby, and all applicable
waiting periods under all Rules shall have expired.
(c) All actions necessary to authorize the execution,
delivery and performance of the Agreement by Western and the consummation
of the Consolidation by Western shall have been duly and validly taken by
the Board of Directors and shareholders of Western.
(d) The representations and warranties of Western contained
in Article 4 of this Agreement shall have been true and correct (i) on the
date of this Agreement and (ii) at and as of the Effective Time of the
Consolidation as though all such repre sentations and warranties had been
made on and as of the Effective Time of the Consolidation. CVB and Chino
Valley shall have received a certificate to that effect from Western dated
as of the Closing Date and executed on behalf of Western by its Chief
Executive Officer and Chief Financial Officer.
(e) Each of the covenants and agreements of Western
contained in this Agreement to be performed at or before the Effective Time
of the Consolidation shall have been so performed in all material respects.
CVB and Chino Valley shall have received a certificate to that effect from
Western dated as of the Closing Date and executed on behalf of Western by
its Chief Executive Officer and Chief Financial Officer.
(f) During the period from the date of this Original
Agreement to the Effective Time of the Consolidation, there shall not have
occurred any event related to the business, condition (financial or
otherwise), prospects, capitalization or properties of Western that has had
or could reasonably be expected to have a material adverse effect on the
business, financial condition, results of operations or prospects of
Western, whether or not such event, change or effect is reflected in any
amended or supplemented schedule of Western delivered after the date of the
Original Agreement. CVB and Chino Valley shall have received a certificate
to that effect from Western dated the Closing Date and signed by the Chief
Executive Officer and the Chief Financial Officer of Western.
(g) CVB and Chino Valley shall have received (i) the
Aggregate Purchase Price Certificate and the statements contained therein
shall be true and correct and (ii) a report of Deloitte & Touche confirming
its review of the procedures upon which the calculation of the Aggregate
Purchase Price, including the Net Income/Losses, are based.
(h) Western shall have delivered to CVB and Chino Valley a
written opinion of Labowe, Labowe & Hoffman, or other legal counsel
acceptable to CVB and Chino Valley, dated the Closing Date in substantially
the form attached to this Agreement as Exhibit D.
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(i) The Parties shall have obtained all Third Party
Consents contemplated by subsections (b), (c) and (d) of Section 7.2.
(j) CVB and Chino Valley shall have received evidence
satisfactory to it that all directors and Executive Officers of Western,
have tendered their resignations, to be effective immediately after the
Effective Time of the Consolidation.
(k) Any Consents of a Governmental Entity which are
referred to in this Agreement and are necessary to consummate
the Consolidation, the Merger or any of the other transactions contemplated
hereby shall have been granted without the imposition, in the sole opinion
of CVB and Chino Valley, of materially burdensome conditions.
(l) There shall have been executed and delivered to CVB and
Chino Valley, contemporaneously with the execution and delivery of this
Agreement:
(i) Noncompetition Agreements with each of Western's
directors and Executive Officers; and
(ii) Shareholder's Agreements with each of the
directors of Western.
(m) CVB and Chino Valley shall have received an opinion
from Manatt, Phelps & Phillips to the effect that (i) the Consolidation
constitutes a "qualified stock purchase" under Section 338(a) of the Code,
(ii) the Merger qualifies as a taxfree reorganization under Section
368(a)(1)(A) of the Code and (iii) the Consolidation and Merger will not
result in the recognition of gain or loss for federal income tax purposes
by Western, CVB, Chino Valley or the Surviving Bank.
(n) CVB shall have received satisfactory evidence that all
Western Options have been cancelled and terminated on terms and conditions
satisfactory to CVB.
(o) CVB and Chino Valley shall have received satisfactory
evidence that all Western Employment Agreements, have been terminated on
terms and conditions satisfactory to CVB and Chino Valley.
(p) The Western Lease shall have been extended on terms and
conditions satisfactory to CVB and Chino Valley.
(q) CVB and Chino Valley shall have received satisfactory
evidence that (i) all of Western's employee benefit plans, programs and
arrangements, have been terminated on terms and conditions satisfactory to
CVB and Chino Valley and (ii) all benefits payable under such plans,
programs and arrangements have been paid.
(r) CVB and Chino Valley shall have received satisfactory
assurances that the Surviving Bank shall have, on and after the Effective
Time of the Merger, insurance policies and bonds that are comparable in
terms of both coverage and cost to those maintained by or with respect to
Chino Valley or its officers and directors prior to the Effective Time of
the Merger.
217
(s) As of the Determination Date, Western's allowance for
loan losses shall not be less than $700,000. CVB and Chino Valley shall
have received a certificate to that effect from Western dated as of the
Closing Date and executed on behalf of Western by its Chief Executive
Officer and Chief Financial Officer.
(t) As of the Determination Date and immediately prior to
the Effective Time of the Consolidation and the Effective Time of the
Merger, the Contingent Reserve shall equal that number which is equal to
20% of the principal amount of the Contingent Loans at the Effective Time
of the Merger.
(u) CVB and Chino Valley shall have received from the
Securities and Exchange Commission and the California Department of
Corporations a letter to the effect that such agencies will not take any
action against CVB or Chino Valley if
CVB issues the Continent Payment Rights without registration or
qualification under the Securities Act of 1993, the Securities Exchange Act
of 1934, the Trust Indenture Act of 1939 or the California Corporate
Securities Laws of 1968.
(v) All material legal matters in connection with the
consummation of the transactions contemplated hereby, including the Merger,
shall have been approved by Manatt, Phelps & Phillips or such other counsel
of CVB and Chino Valley.
8.3 Additional Conditions to Obligations of Western to Close.
The obligations of Western to consummate the transactions contemplated
hereby are subject to the satisfaction or waiver (where permissible) at or
prior to the Closing Date of each of the following conditions:
(a) All actions necessary to authorize the execution,
delivery and performance of the Agreement by CVB and Chino Valley and
consummation of the Consolidation by New Bank shall have been duly and
validly taken by the Board of Directors of CVB, Chino Valley and New Bank.
(b) The covenants and agreements of CVB to be performed at
or before the Effective Time of the Consolidation shall have been duly
performed in all material respects. Western shall have received a
certificate to that effect dated the Closing Date and executed on behalf of
CVB by the Chief Executive Officer and Chief Financial Officer of CVB.
(c) CVB shall have delivered to Western the written opinion
of Manatt, Phelps & Phillips or other legal counsel reasonably acceptable
to Western, dated the Closing Date in substantially the form attached to
this Agreement as Exhibit E.
(d) Cash representing the Aggregate Purchase Price shall
have been deposited with the Exchange Agent at least one Business Day prior
to the Effective Time of the Consolidation.
(e) All material legal matters in connection with the
consummation of the transactions contemplated hereby, including the Merger,
shall been approved by Labowe, Labowe & Hoffman, or such other counsel of
218
Western.
ARTICLE 9
EMPLOYEE BENEFITS
9.1 Termination of Western Employee Benefits Plans. Western
shall have terminated all employee benefit plans prior to the Effective
Time of the Consolidation and no such employee benefit plans shall become
plans of the Consolidated Association or the Surviving Bank.
9.2 Western Employee Benefits. At and as of the Effective Time
of the Merger, the former officers and employees of Western who become
officers and employees of the Surviving Bank shall, in that capacity, be
entitled to participate in all employee benefits and benefit programs of
the Surviving Bank in accordance with the terms of such employee benefit
programs. Surviving Bank shall recognize such former officers' and
employees' service with Western for purposes of eligibility of benefits
under such benefit programs, except that no former officer or employee of
Western shall be deemed to have accrued
any rights under the Chino Valley Employee Profit Sharing Plan by reason of
past employment by Western. Such former employee or officer of Western
shall commence accruing service for eligibility and vesting purposes under
such Profit Sharing Plan beginning on the date he first performs an hour of
service for the Surviving Bank.
ARTICLE 10
TERMINATION OF AGREEMENT; WAIVER OF CONDITIONS;
PAYMENT OF EXPENSES; FILINGS AND APPROVALS
10.1 Termination of Agreement.
Anything herein to the contrary notwithstanding, this Agreement,
the Consolidation and the Merger contemplated hereby may be terminated at
any time before the Effective Time of the Consolidation, whether before or
after approval by the shareholders of Western and New Bank as follows, and
in no other manner:
(a) Initial Due Diligence. By CVB and Chino Valley, at any
time, within 45 days after the date of this Agreement, if in the course, or
as a result, of its examination of assets, liabilities, business, condition
(financial or otherwise) operations and prospects of Western, including,
but not limited to, its examination and review of (i) any matters,
documents, agreements or instruments included or referred to on the
schedules of Western delivered pursuant to Article 4 of this Agreement,
(ii) the accounting books and records of Western, (iii) the loan portfolio
of Western (iv) the minute and corporate books and records of Western, or
(v) the material contracts, agreements and leases of Western, CVB and Chino
Valley conclude, in their sole discretion, that (A) CVB, Chino Valley or
the Surviving Bank may not realize fully the benefits of the Consolidation
or Merger and the transactions contemplated by this Agreement or (B) there
219
exists a fact or event related to the business, condition (financial or
otherwise), prospects, capitalization or properties of Western that has or
could reasonably have a material adverse effect on the business, financial
condition, results of operations or prospects of Western or the Surviving
Bank.
(b) Mutual Consent. By mutual consent of the Parties.
(c) General Conditions Not Met. By CVB and Chino Valley or
Western, if any conditions set forth in Section 8.1 shall not have been met
by May 31, 1994.
(d) Conditions. By CVB and Chino Valley, if any conditions
set forth in Section 8.2 shall not have been met, or by Western if any
conditions set forth in Section 8.3 shall not have been met, by May 31,
1994, or such earlier time as it becomes apparent that such condition
cannot be met.
(e) FRB, Comptroller, FDIC or Superintendent Approval. By
CVB and Chino Valley or Western, if the FRB or the Comptroller shall have
finally declined to approve the Consolidation or by CVB and Chino Valley if
the FDIC or Superintendent shall have finally declined to approve the
Merger.
(f) Default.
(i) By CVB and Chino Valley, if Western
should materially default in the observance or in the due and timely
performance of any of its covenants and agreements herein contained (other
than Section 6.5) and such default shall not have been fully cured within
20 Business Days after written notice specifying the alleged default.
(ii) By Western, if CVB or Chino Valley should
materially default in the observance or in the due and timely performance
of any of their covenants and agreements herein contained and such default
shall not have been fully cured within 20 Business Days after written
notice specifying the alleged default.
(g) Alternative Transactions.
(i) By CVB and Chino Valley, at any time, if Western
violates the covenants set forth in subsections (a), (b) or (c) of Section
6.5.
(ii) By either Western or CVB and Chino Valley, at any
time, if Western has received an unsolicited offer from a Person other than
CVB and Chino Valley to effect an Alternative Transaction and takes any
action referred to in subsection (b) of Section 6.5 after the Board of
Directors of Western is advised in writing by outside legal counsel that in
the exercise of its fiduciary duty such action should be taken.
(h) Withdrawal of Board Recommendation. By CVB and Chino
Valley, at any time, if the Board of Directors of Western withdraws its
recommendation pursuant to Section 6.7.
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(i) Shareholder Non-Approval. By CVB and Chino
Valley, at any time, if the approval of the shareholders of Western to all
of the matters referred to in Section 6.7 is not obtained prior to March
31, 1994.
(j) Expiration Date. By CVB and Chino Valley or Western if
the Closing has not occurred by May 31, 1994, unless such date is extended
by mutual agreement of the Parties (the "Expiration Date").
10.2 Effect of Termination; Liquidated Damages; Expenses.
(a) No termination of this Agreement under this Article 10
for any reason or in any manner shall release, or be construed as so
releasing, any Party from its obligations under subsection (b) of this
Section 10.2, or Sections 11.8, 11.9 and 11.11 or from any liability or
damage to any other Party hereto arising out of, in connection with or
otherwise relating to, directly or indirectly, said Party's material
breach, default or failure in performance of any of its covenants,
agreements, duties or obligations arising hereunder; provided, however,
that, if such termination shall result from (i) an election to terminate by
CVB and Chino Valley pursuant to subsection (g)(i) of Section 10.1, Western
shall pay to CVB and Chino Valley as reasonable and full liquidated damages
and reasonable compensation for the loss sustained thereby and not as a
penalty or forfeiture, the sum of $500,000, within ten Business Days
following the notice that such violation has occurred and (ii) an election
to terminate by CVB and Chino Valley pursuant to subsections (g)(ii) or (h)
of Section 10.1, Western shall pay to CVB and Chino Valley, as reasonable
and full liquidated damages and reasonable compensation for the loss
sustained thereby and not as a penalty or forfeiture, the sum of $250,000
plus CVB and Chino Valley's out-of-pocket expenses in connection with this
Agreement and the transactions contemplated hereby (including,
but not limited to, attorney's fees) up to $100,000 within ten Business
Days following notice of such election; and provided, further, that if such
termination shall result from CVB's willful failure to cause New Bank to
consummate the Consolidation on or before the Expiration Date,
notwithstanding each and every condition to its obligation to cause New
Bank to consummate the Consolidation having been satisfied prior to that
date, CVB shall pay to Western (provided Western is not otherwise in breach
of this Agreement), as full liquidated damages and reasonable compensation
for the loss sustained thereby and not as a penalty or forfeiture, the sum
of $150,000 plus Western's out-of-pocket expenses in connection with this
Agreement and the transactions, contemplated hereby (including, but not
limited to, attorney's fees) up to $100,000 within ten Business Days
following notice thereof.
Any claim for reimbursement of out-of-pocket expenses pursuant to this
Section 10.2(a) shall be subject to reasonable
documentation.
(b) Except as otherwise provided in this Section 10.2, all
legal and other costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by the
Party incurring such costs and expenses as indicated below:
221
(i) all fees and disbursements of their counsel,
consultants and accountants shall be paid by CVB and Chino Valley;
(ii) all fees and disbursements of its counsel,
consultants and accountants shall be paid by Western;
(iii) all fees and out-of-pocket expenses in
connection with obtaining approval by shareholders of Western of the
matters referred to in Section 6.7, including any proxy solicitation costs,
shall be paid by Western; and
(iv) all filing fees in connection with securing
approval of the transactions contemplated in this Agreement by the
Comptroller, the FRB, the FDIC and the Superintendent shall be paid by CVB
and Chino Valley.
ARTICLE 11
GENERAL
11.1 Amendments. To the fullest extent permitted by law, this
Agreement and any schedule or exhibit attached hereto may be amended by
agreement in writing of the Parties hereto at any time prior to the
Effective Time of the Consolidation, whether before or after approval of
this Agreement by the shareholders of Western.
11.2 Schedules; Exhibits; Integration. Each schedule, exhibit
and letter delivered pursuant to this Agreement shall be in writing and
shall constitute a part of the Agreement, although schedules and letters
need not be attached to each copy of this Agreement. This Agreement,
together with such schedules, exhibits, and letters, constitutes the entire
agreement between the Parties pertaining to the subject matter hereof and
supersedes all prior agreements and understandings of the Parties in
connection therewith. Any representation or warranty made as of the Closing
Date shall be deemed to have been made with respect to the schedules,
exhibits and letters provided as of the
date of this Agreement and not as amended and supplemented pursuant to
Sections 4.28 or 6.6 on or before such date.
11.3 Third Parties. Except as contemplated by
Section 4.20, each Party intends that this Agreement shall not benefit or
create any right or cause of action in any Person other than the Parties
hereto.
11.4 Governing Law. This Agreement and the legal
relations between the Parties shall be governed by and construed
in accordance with the laws of the State of California applicable to
contracts between California parties made and performed in such state
except that the provisions of this Agreement with respect to the
Consolidation and the Merger shall also be governed by United States law.
11.5 No Assignment. Neither this Agreement nor any
rights, duties or obligations hereunder shall be assignable by the Parties,
222
in whole or in part. Any attempted assignment in violation of this
prohibition shall be null and void. Subject to the foregoing, all of the
terms and provisions hereof shall be binding upon, and inure to the benefit
of, the successors and assigns of the Parties hereto.
11.6 Headings. The descriptive headings of the
several Articles, Sections and subsections of this Agreement are inserted
for convenience only and do not constitute a part of this Agreement.
11.7 Counterparts. This Agreement and any exhibit
hereto may be executed in one or more counterparts, all of which shall be
considered one and the same agreement and shall become effective when one
or more counterparts have been signed by each Party hereto and delivered to
each Party hereto.
11.8 Publicity. The Parties shall coordinate all
publicity relating to the transactions contemplated by this Agreement, and
no Party shall issue any press release, publicity statement, shareholder
communication or other public notice relating to this Agreement or any of
the transactions contem plated hereby without obtaining the prior consent
of the Parties except to the extent that independent legal counsel to the
Parties, as the case may be, shall deliver a written opinion to the Parties
that a particular action is required by applicable Rules.
11.9 Confidentiality. All Confidential Information
disclosed heretofore or hereafter by any Party to this Agreement to any
other Party to this Agreement shall be kept confidential by such other
Party and shall not be used by such other Party otherwise than as herein
contemplated, except to the extent that (a) it is necessary or appropriate
to disclose to the FRB, the Comptroller, the Superintendent, the FDIC or
any other Governmental Entity having jurisdiction over Western or CVB and
Chino Valley or as may otherwise be required by Rule (any disclosure of
Confidential Information to a Governmental Entity shall be accompanied by a
request that such Governmental Entity preserve the confidentiality of such
Confidential Information); or (b) to the extent such duty as to
confidentiality is waived by the other Party. Such obligation as to
confidentiality and nonuse shall survive the termination of this Agreement
pursuant to Article 10. In the event of such termination and on request of
another Party, each Party shall use all reasonable efforts to (y) return to
the other Parties all documents (and reproductions thereof) received from
such other Parties that contain Confidential Information (and, in the case
of reproductions, all
such reproductions made by the receiving Party); and (z) destroy the
originals and all copies of any analyses, computations, studies or other
documents prepared for the internal use of such Party that include
Confidential Information.
11.10 Waiver. No waiver of any term, provision or condition of
this Agreement, whether by conduct or otherwise, in any one or more
instances, shall be deemed to be or construed as a further or continuing
waiver of any such term, provision or condition of this Agreement.
11.11 Notices. Any notice or communication required or
permitted hereunder, including, without limitation, supplemental schedules
required under Section 6.6, shall be deemed to have been given if in
223
writing and (a) delivered in person, (b) delivered by confirmed facsimile
transmission or
(c) mailed by certified or registered mail, postage prepaid, with return
receipt requested, addressed as follows:
If to CVB and Chino Valley addressed to:
CVB Financial Corp.
701 N. Haven Avenue, Suite 350
Ontario, California 91764 Attention: D. Linn Wiley
Telecopier No.: (714) 980-5232
With a copy addressed to:
Manatt, Phelps & Phillips 11355 West Olympic Boulevard Los
Angeles, California 90064 Attn: Barnet Reitner, Esq.
Telecopier No.: (310) 312-4224
If to Western addressed to:
Western Industrial National Bank 9754 Rush Street
South El Monte, California 91733 Attention: Thomas A. Walker
Telecopier No.: (818) 444-2763
224
With a copy addressed to:
Labowe, Labowe & Hoffman
1631 West Beverly Boulevard
2nd Floor
Los Angeles, CA 90026
Attn: Ronald B. Labowe, Esq.
Telecopier No.: (213) 975-1145
If to WIN Investment Group addressed to:
WIN Investment Group
1500 North Potrero Avenue
South El Monte, California 91733 Attention: Evans Menon
Telecopier No.: (818) 444-2915
With a copy addressed to:
Labowe, Labowe & Hoffman
1631 West Beverly Boulevard 2nd Floor
Los Angeles, CA 90026 Attn: Ronald B. Labowe, Esq.
Telecopier No.: (213) 975-1145
or at such other address and to the attention of such other Person as a
Party may give notice to the others in accordance with this Section
11.11. Any such notice or communication shall be deemed received on the
date delivered personally or delivered by confirmed facsimile transmission
or on the third Business Day after it was sent by certified or registered
mail, postage prepaid with return receipt requested.
11.12 Knowledge. Whenever any statement herein or in any
Schedule, certificate or other documents delivered to any Party pursuant to
this Agreement is made "to the knowledge" or "to the best knowledge" of any
Party or another Person, such Party or other Person shall make such
statement only after con ducting an investigation reasonable under the
circumstances of the subject matter thereof, and each such statement shall
constitute a representation that such investigation has been conducted.
IN WITNESS WHEREOF, the parties to this Agreement have duly
executed this Agreement as of the day and year first above written.
CVB FINANCIAL CORP.
By /s/ D. Linn Wiley
President and Chief Executive Officer
ATTEST:
Secretary
/s/ Donna Marchesi
225
CHINO VALLEY BANK
By /s/ D. Linn Wiley
President and Chief Executive Officer
ATTEST:
Secretary /s/ Donna Marchesi
WESTERN INDUSTRIAL NATIONAL BANK
By /s/ Tom L. Walker
President and Chief Executive Officer
ATTEST:
Secretary /s/ Noel A. Castellon
Table of Contents
ARTICLE 1 DEFINITIONS
1.1 Definitions
ARTICLE 2 THE CONSOLIDATION AND RELATED MATTERS
2.1 The Consolidation.
2.2 Effect of the Consolidation.
2.3 Dissenting Shareholders.
2.4 The Aggregate Purchase Price and Per Share
Price
2.5 Delivery of Cash.
2.6 Contingent Payment Rights
2.7 Name of Consolidated Association.
2.8 Directors and Officers of Consolidated
Association.
2.9 Noncompetition Agreements
2.10 Shareholder's Agreements
ARTICLE 3 THE CLOSING
3.1 Closing Date
3.2 Execution of Agreement to Consolidate
3.3 Execution of Agreement of Merger
3.4 Documents to be Delivered
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF WESTERN
4.1 Organization, Standing and Power
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4.2 Capitalization
4.3 Subsidiaries
4.4 Financial Statements
4.5 No Material Liabilities
4.6 Authority of Western
4.7 Reserved.
4.8 No Conflicts; Defaults
4.9 Reports and Filings
4.10 Tax and Other Returns and Reports
4.11 Contracts
4.12 Title to Property
4.13 Litigation
4.14 Certain Adverse Changes
4.15 Minute Books
4.16 Accounting Records; Data Processing
4.17 Insurance
4.18 Employee Benefit Plans and Employment and
Labor Contracts
4.19 Investments
4.20 Broker's or Finder's Fees
4.21 Compliance with Rules
4.22 Certain Interests
4.23 Extensions of Credit
4.24 Operating Losses
4.25 Powers of Attorney
4.26 Offices and ATMs
4.27 Disclosure Documents and Applications
4.28 Accuracy and Currentness of Information
Furnished
4.29 Effective Date of Representations, Warranties,
Covenants and Agreements
ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF CVB AND
CHINO VALLEY
5.1 Organization, Standing and Power of CVB and
Chino Valley
5.2 Authority of CVB and Chino Valley
5.3 No Conflicts; Defaults
5.4 Accuracy of Information Furnished
5.5 Adequacy of Capital
5.6 Compliance with Rules
5.7 Authority of New Bank
ARTICLE 6 CONDUCT AND TRANSACTIONS PRIOR TO EFFECTIVE
TIME OF MERGER
6.1 Access to Information
6.2 Material Adverse Changes; Reports; Financial
Statements; Filings
6.3 Limitation on Western's Conduct Prior to
Closing
6.4 Certain Loans and Other Extension of Credit
6.5 No Solicitation, etc
227
6.6 Schedules of Western
6.7 Shareholder Approval
6.8 Compliance with Rules
6.9 Disposition of Employee Benefit Plans
6.10 Cancellation of Western Options
6.11 Termination of Western Employment Agreements
6.12 Action on Lease
6.13 Execute Agreement to Consolidate
ARTICLE 7 FURTHER COVENANTS OF THE PARTIES
7.1 Execution of Agreement to Consolidate
7.2 Filings, Consents and Insurance
7.3 Preservation of Employment Relations Prior to
Effective Time
ARTICLE 8 CONDITIONS PRECEDENT TO CONTEMPLATED
TRANSACTIONS
8.1 Conditions to Each Party's Obligation to Close
8.2 Additional Conditions to Obligations of
Chino Valley to Close
8.3 Additional Conditions to Obligations of Western
to Close
ARTICLE 9 EMPLOYEE BENEFITS
9.1 Termination of Western Employee Benefits Plans
9.2 Western Employee Benefits
ARTICLE 10 TERMINATION OF AGREEMENT; WAIVER OF CONDITIONS; PAYMENT
OF EXPENSES; FILINGS AND APPROVALS
10.1 Termination of Agreement
10.2 Effect of Termination; Liquidated Damages;
Expenses
ARTICLE 11 GENERAL
11.1 Amendments
11.2 Schedules; Exhibits; Integration
11.3 Third Parties
11.4 Governing Law
11.5 No Assignment
11.6 Headings
11.7 Counterparts
11.8 Publicity
11.9 Confidentiality
11.10 Waiver
11.11 Notices
11.12 Knowledge
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EXHIBITS
A-1 Agreement to Consolidate
A-2 Agreement of Merger
B Form of Noncompetition Agreement
C Form of Shareholder's Agreement
D Form of Opinion of Counsel of Western
E Form of Opinion of Counsel of CVB and Chino Valley
SCHEDULES
Schedule 4.2 Western Options
Schedule 4.3 Subsidiaries
Schedule 4.5 Material Liabilities
Schedule 4.8 Conflicts, Defaults and Required Consents
Schedule 4.10 Taxes
Schedule 4.11 Material Contracts
Schedule 4.12 Real Property
Schedule 4.13 Litigation and Regulatory Proceedings
Schedule 4.16 Data Processing
Schedule 4.17 Insurance
Schedule 4.18 Employee Benefit Plans; Employment and Labor
Contracts
Schedule 4.19 Investments
Schedule 4.22 Certain Interests
Schedule 4.23 Classified Assets
Schedule 4.24 Operating Losses
Schedule 4.26 Offices and ATMs
229
SUBLEASE
(LSN 800191)
This Sublease is made this 15th day of October, 1993 by and
between Bank of America National Trust and Savings Association, a national
banking association ("Sublandlord") and Chino Valley Bank ("Subtenant").
WITNESSETH:
1.Recitals. This Sublease is made with reference to the following facts:
1.1 Sinclair-Arcadia, L.P. ("Master Landlord") and Pacific Southwest
Realty Company, predecessor in interest to Sublandlord, as tenant, entered
into a written lease dated April 17, 1991, a copy of which is attached
hereto as Exhibit A ("Master Lease") covering premises described in Section
1.01 and shown on Exhibit "B" of the Master Lease.
1.2 Intentionally omitted.
1.3 Subtenant desires to sublet all the premises described in Section
1.01 and shown on Exhibit "B" of the Master Lease (the "Premises") from
Sublandlord on the terms and conditions contained in this Sublease.
2. Basic Sublease Provisions.
2.1 Building Name: Arcadia Metro Centre
Floors: Ground Floor and Mezzanine
Premises Address: 630 W. Duarte Road
Suite 101
Arcadia, CA
2.2 Rentable Area of Premises: 6,800 square feet.
2.3 Operating Expenses: Subtenant shall pay Tenant's Share of
Operating Expenses as provided for and on the terms set forth on
page (ii) and in Section 6 of the Master Lease.
2.4 Commencement Date: The earlier of (i) the date Subtenant receives
a certificate of occupancy
with respect to the improvements to be conStrUCted by Subtenant
in the PreiniSes and (ii) September 1, 1993-
2.5 Expiration Date: April 30, 2001.
2.6 Basic Monthly Rent: $9,860. subject to Paragraphs 2.8 and 2.11,
all rent Bhall be paid without demand, deduction, set-off or
counter claim, in advance, on the first day OE each calendar
month during the term of this Sublease, and in the event of a
230
partial rental inonth, rent shall be prorated on the basis at a
thirty (30) day month.
2.7 Permitted Uset Any use permitted by law.
2.8 Subtenant Improvement Concession: As considoration for
Subtenant's performance of all obligations to be performed by
Subtenant under this Sublease, and for so long as Subtenant shall
not be in default hereunder, subtenant shall be excused from the
payment of one-half (1/2) of the Basic Monthly Rent beginnimg on
the first day of the Ilth month of the terra of this Sublease,
and ending when the total concession to Subtenant equals $75,000.
should subtenant at any time during the term hereof be in default
under this Sublease, then the total sum so conditionally excused
shall become immediately dua and payable by Subtenant to the
Sublandlord.
2.9 Late Charges: The parties agree that late payments by Subtenant
to Sublandlord of rent will cause Sublandlord to incur costs not
contemplated by this sublease, the amount of which is extremely
difficult to ascertain. Therefore, the parties agree that if any
installiaent of rent is not received by Sublandlord within seven
(7) days after rent is due, Subtenant will pay to Sublandlord,
with such late installment, a sum equal to 2.5% of the Basic
monthly Rent as a late charge. Additionally, after rent is past
due for seven (1) days, interest at Sublandlord's prime rate
shall apply to any such unpaid atiount from the due date until
the date paid.
2.10 Rental Adjustment(s) during initial term:
Adjustment-Date Adjusted Rent
January 1, 1997 $10,846 per month
2.11 Rental Abatement: As consideration for Subtenant's performance of
all obligations to be performed by Subtenant under this Sublease and
for so long as Subtenant shall not be in default hereunder, Subtenant
shall be excused from the payment of one-half (1/2) of the Basic
Monthly Rent for the first ten (10) months of the term of this
Sublease. Should Subtenant at any time during the term hereof be in
default under this Sublease, then the total sum of such Basic Monthly
Rent so conditionally excused shall become immediately due and payable
by Subtenant to Sublandlord. If at the date of expiration of the term
of this Sublease, including any option period, Subtenant is not in
default hereunder, Sublandlord shall waive any payment of all such
Basic Monthly Rent so excused.
2.12 Options to Extend: None. If Subtenant obtains from Master
Landlord the right to exercise the two (2) five (5) year options
granted by Master Landlord to Sublandlord in the Master Lease, such
extension periods are to be pursuant to a direct lease with Master
Landlord and Sublandlord shall have no obligations with respect
thereto. Sublandlord's obligations under the Master Lease and under
231
this Sublease shall terminate on the Termination Date set forth above.
2.13 Intentionally omitted.
2.14 Intentionally omitted.
2.15 Acceptance of Premises: Subtenant agrees to accept the Premises
in an "as is" condition. Without limiting the foregoing, Subtenant's
rights in the Premises are subject to all local, state and federal
laws, regulations and ordinances governing and regulating the use and
occupancy of the Premises and subject to all matters now or hereafter
of record. Subtenant acknowledges that neither Sublandlord nor
Sublandlord's agent has made any representation or warranty as to:
(i) the present or future suitability of the Premises for
the conduct of Subtenant's business;
(ii) the physical condition of the Premises;
(iii) the expenses of operation of the Premises;
(iv) the safety of the Premises, whether for the use of
Subtenant or any other person, including Subtenant's employees,
agents, invitees or customers;
(v) the compliance of the Premises with any applicable laws,
regulations or ordinances; or
(vi) any other matter or thing affecting or related to the
Premises.
Subtenant acknowledges that no rights, easements or licenses are
acquired by Subtenant by implication or otherwise except as expressly
set forth herein. Subtenant shall, prior to delivery of possession of
the Premises, inspect the Premises and become thoroughly acquainted
with their condition, and acknowledges that the taking of possession
of the Premises by Subtenant shall be conclusive evidence that the
Premises were in good and satisfactory condition at the time such
possession was so taken. Subtenant specifically agrees that
Sublandlord has no duty to make any disclosures concerning the
condition of the Project and the Premises and/or the fitness of the
Project and the Premises for Subtenant's intended use and Subtenant
expressly waives any duty which Sublandlord might have to make any
such disclosures. Subtenant further agrees that, in the event
Subtenant subleases all or any portion of the Premises, Subtenant will
indemnity and defend Sublandlord (in accordance with Paragraph 9
hereof) for, from and against any matters which arise as a result of
Subtenant's failure to disclose any relevant infornation about the
Project or %-.he Premises to any cubtanant or aos4-gnAe. Subtenant
shall comply with all laws and regulations relating to the use or
occupancy of the Pren, ises and to tl,,e common areas, including,
without limitation, mak4-ng structural alterations or providing
auxiliary aids and services to the Pre;-,iises as requ'i-red by the
Anericans wi-@h Disabilities Act 0: 1990, 42 U.S.C. SS 12101 et @e -
232
(the "ADAII).
2.16 Base Year for Operating Expenses: 1991 as per the master Lease.
2.17 Intentionally omitted.
2.18 Address for payment of rent and notices:
sublandlord; Subtenant:
Bank of America, NT&SA Chino Valley Bank
20 N. Raynond Avenue 701 N. Haven Ave. Suite 350
Pasadena, CA 91103 Ontario, CA 91764
Attn: Real Estate Manager (909)980-4030
(818) 578-8700
2.19 Intentionally omitted.
2.20 Broker: CB Commercial
3.Incorporation By Reference; Assumption.All of the Sections of the master
Lease are incorporated ink-.o this Sublease as if fully set for-"-h in this
Sublease except for the following: 2, 3, 4, 5.10, 8, 9.02, 11, 12, 16.01,
16.02, 16.17, 17 and 18.
3.1 If any provisions of this Sulolease conflict with any portion of
the Master Lease as incorporated herein, the terms of tries Sublease shall
govern.
3.2 Subtenant-. shall assume and perform, to Sublandlord the Tenantlg
obligations under the Viaster Lease provisions. Subtenant shall pay to
Sublandlord Tenant's Share of operating 'Expenses and any other sums
payable by Sublandlord to Master Landlord urder the Master Lease not later
than ten (10) days prior to the date any such arounts are due and payable
by Sublandlord.
3.3 Sublandlord does not assume the obligations of the Master Landlord
under the Master Lease.
3.4 With respect to work, services, repairs, repainting, restoration,
the provision of utilities, elevator or HVAC services, or the performance
of other obligations required of Master Landlord under the Master Lease,
Sublandlord's sole obligation with respect thereto shall be to request the
same, on request in writing by Subtenant, and to use reasonable efforts to
obtain the same from Master Landlord; provided, however, Sublandlord shall
have no obligation to institute legal action against Master Landlord.
Subtenant shall cooperate with Sublandlord as may be required to obtain
from Master Landlord any such work, services, repairs, repainting
restoration, the provision of utilities, elevator or HVAC services, or the
performance of any of Master Landlord's other obligations under the Master
Lease.
233
4.Subtenant's Performance Under Master Lease. At any time and on reasonable
prior notice to Subtenant, Sublandlord can elect to require Subtenant to
perform its obligations under this Sublease directly to Master Landlord, in
which event Subtenant shall send to Sublandlord from time to time copies of
all notices and other communications it shall send to and receive from
Master Landlord.
5.Covenant Of Ouiet Enjoyment: Sublandlord represents that the Master Lease
is in full force and effect and that there are no defaults on Sublandlord's
part under it as of the Commencement Date set forth in Paragraph 2.4 above.
Subject to this Sublease terminating as provided in sections 10.3, 10A or
13.02 of the Master Lease, Sublandlord represents that if Subtenant
performs all the provisions in this Sublease to be performed by Subtenant,
Subtenant shall have and enjoy throughout the term of this Sublease the
quiet and undisturbed possession of the Premises. Sublandlord shall have
the right to enter the Premises at any time, in the case of an emergency,
and otherwise at reasonable times, for the purpose of inspecting the
condition of the Premises and for verifying compliance by Subtenant with
this Sublease and the Master Lease and to permit Sublandlord to perform its
obligations under this Sublease and the Master Lease.
6. Master Lease.
6.1 Subtenant shall not do or permit to be done anything which would
constitute a violation or breach of any of the terms, conditions or
provisions of the Master Lease or which would cause the Master Lease to be
terminated or forfeited by virtue of any rights of termination or
forfeiture reserved by or vested in Master Landlord.
6.2 If the Master Lease terminates, this Sublease shall terminate and
the parties shall be relieved from all liabilities and obligations under
this Sublease excepting obligations which have accrued as of the date of
termination; except that if this Sublease terminates as a result of a
default of one of the parties under this Sublease or the Master Lease, the
defaulting party shall be liable to the non-defaulting party for all damage
suffered by the non-defaulting party as a result of the termination.
6.3 If Sublandlord is given the right under the Master Lease to
terminate the Master Lease (e.g. in case of destruction), Subtenant shall
have the right, in its sole discretion, to determine whether it wishes to
have the Master Lease terminated. If Subtenant elects to have the Master
Lease terminated, then Subtenant shall so notify Sublandlord, Subtenant
shall terminate this Sublease and Sublandlord shall terminate the Master
Lease; provided, however, in such event Subtenant shall indemnify
Sublandlord against any liabilities which may arise as a result of such
termination.
7.Hazardous Materials. For the purposes of this Sublease, the following
terms have the following meanings:
(a) "Hazardous Materials Laws" means any and all laws, statutes,
ordinances or regulations pertaining to health, industrial hygiene or
234
the environment including, without limitation, CERCLA (Comprehensive
Environmental Response Compensation and Liability Act of 1980) and
RCRA (Resources Conservation and Recovery Act of 1976).
(b) "Hazardous Materials" means asbestos or any substance,
material or waste which is or becomes designated, classified or
regulated as being "toxic" or "hazardous" or a "pollutant" or which is
or becomes
similarly designated, classified or regulated under any federal, state
or local law.
At its own expense, Subtenant will procure, maintain in effect and
comply with all conditions of any and all permits, licenses and other
governmental and regulatory approvals required for Subtenant's use of the
Premises, including, without limitation, discharge of appropriately treated
materials or wastes into or through any sanitary sewer serving the
Premises. Except as discharged into the sanitary sewer in strict accordance
and conformity with all applicable Hazardous Materials Laws, Subtenant will
cause any and all Hazardous Materials removed from the Premises to be
removed and transported solely by duly licensed haulers to duly licensed
facilities for final disposal. Subtenant will, in all respects, handle,
treat, deal with and manage any and all Hazardous Materials in, on, under
or about the Premises in total conformity with all applicable Hazardous
Materials Laws and prudent industry practices regarding management of such
Hazardous Materials. Upon expiration or earlier termination of the term of
this Sublease, Subtenant will cause all Hazardous Materials placed on,
under or about the Premises by Subtenant or at Subtenant's direction to be
removed and transported for use, storage or disposal in accordance and
compliance with all applicable Hazardous Materials Laws. Subtenant will not
take any remedial action in response to the presence of any Hazardous
Materials in or about the Premises or any building, nor enter into any
settlement agreement, consent decree or other compromise in respect to any
claims relating to any Hazardous Materials in any way connected with the
Premises without first notifying Master Landlord and Sublandlord of
Subtenant's intention to do so and affording Master Landlord and
Sublandlord ample opportunity to appear, intervene or otherwise
appropriately assert and protect Master Landlord's and Sublandlord's
interests with respect thereto.
8.Artwork. Subtenant will not install any artwork of any nature in the
Premises which cannot be removed without damage or destruction to the
artwork. Subtenant may not alter or modify any piece of artwork within the
Premises without Sublandlord's express written consent, which Sublandlord
may withhold in its sole discretion.
9.Indemnity. Subtenant will indemnify, defend (by counsel reasonably
acceptable to Sublandlord), protect and hold Sublandlord harmless from and
against any and all liabilities, claims, demands, losses, damages, costs
and expenses (including attorneys' fees and the allocated costs of
Sublandlord's in-house attorneys) arising out of or relating to (i) the
death of or injury to any person, or damage to any property whatsoever, on
or about the Premises; or (ii) Subtenant's breach or default under this
Sublease (including, without limitation, Subtenant's breach of Paragraph 7
235
above) or, to the extent incorporated herein, the Master Lease.
10.Attorneys' Fees. If there is any legal or arbitration action or
proceeding between Sublandlord and Subtenant to enforce any provision of
this Sublease or to protect or establish any right or remedy of either
Sublandlord or Subtenant hereunder, the unsuccessful party to such action
or proceeding will pay to the prevailing party all costs and expenses,
including reasonable attorneys' fees (including allocated costs of
Sublandlord's in-house attorneys) incurred by such prevailing party in such
action or proceeding and in any appearance in connection therewith, and if
such prevailing party recovers a judgment in any such action, proceeding or
appeal, such costs, expenses and attorney's fees will be determined by the
court or arbitration panel handling the proceeding and will be included in
and as a part of such judgment.
ii. No Encumbrance. Subtenant shall not voluntarily, involuntarily or by
operation of law mortgage or otherwise encumber all or any part of
Subtenant's interest in the Sublease or the Premises.
12. Assignment and Subletting.
12.1 Subtenant shall not voluntarily, involuntarily or by operation of
law assign this Sublease or any interest therein and shall not sublet the
Premises or any part thereof, or any right or privilege appurtenant
thereto, without first obtaining the written consent of Sublandlord, which
consent shall not be unreasonably withheld.
Determining whether or not to consent to the proposed assignment or
subletting, Sublandlord may consider among other factors:
236
(i) whether the proposed sublessee or assignee has a net worth
equal to or greater than Subtenant,
(ii) whether the proposed use of the Premises by the proposed
sublessee or assignee is consistent with Paragraph 2.7,
(iii) the experience and business reputation of the proposed
sublessee or assignee, and
(iv) whether Sublandlord's consent will result in a breach of the
Master Lease or any other lease or agreement to which Sublandlord is a
party affecting the Project or Premises.
12.2 Any attempted assignment or subletting, without Sublandlord's
consent shall be null and void and of no effect. No permitted assignment or
subletting of Subtenant's interest in this Sublease, shall relieve
Subtenant of its obligations to pay the rent or other sum or charge due
hereunder and to perform all the other obligations to be performed by
Subtenant hereunder. The acceptance of rent by Sublandlord from any other
person shall not be deemed to be a waiver by Sublandlord of any provision
of this Sublease or to be a consent to any subletting or assignment.
Consent to one sublease or assignment shall not be deemed to constitute
consent to any subsequent attempted subletting or assignment.
12.3 Within five (5) days following the date received by Subtenant from
any assignee or sublessee, Subtenant shall pay to Sublandlord as additional
rent, one hundred percent (100%) of the amount by which the rent payable by
such assignee or sublessee to Subtenant exceeds the rent payable by
Subtenant to Sublandlord under this Sublease until the rent paid by
Subtenant to Sublandlord equals the amount paid by Sublandlord to Master
Landlord under the Master Lease and thereafter, fifty percent (50%) of the
amount by which the rent payable by such assignee or sublessee to Subtenant
throughout the term exceeds the rent paid by Subtenant to Sublandlord under
this Sublease. By way of example, if during a year of the term the annual
rent under the Master Lease is $12 per square foot, the rent under the
Sublease is $10 per square foot, and the rent under such subsublease is $14
per square foot, of the $14 per square foot paid to Subtenant by its
subsublessee, $13 per square foot will be paid by Subtenant to Sublandlord
hereunder. If Subtenant receives a lump sum payment in connection with an
assignment, such amount shall be allocated between Subtenant and
Sublandlord, in the same manner taking into account the total rents payable
during the remaining terms of the Master Lease and Sublease.
The foregoing is a freely negotiated arrangement between Subtenant and
Sublandlord respecting the allocation of appreciated rents. This covenant
shall survive the expiration of the term of this Sublease. Notwithstanding
the foregoing, Subtenant shall not be obligated to pay Sublandlord any
portion of such appreciated rentals until Subtenant has recovered any costs
it has reasonably incurred in connection with the subletting of the
Premises to any third party broker or for improvements to the Premises. Any
such costs to be deducted from appreciated rents shall be submitted to
Sublandlord and shall be subject to Sublandlord's reasonable approval.
13. ALTERATIONS
237
(a) Alterations and Improvements Bv Subtenant.
Subtenant shall not make any alterations, additions or improvements to the
Premises ("Alterations") without obtaining the prior written consent of
Sublandlord thereto,
which Sublandlord may grant or withhold, and to which Sublandlord may
impose any conditions, in Sublandlord's sole discretion. The term
"Alterations" shall include any alterations, additions or improvements made
by Subtenant to comply with the ADA as required by Paragraph 2.15 above.
All such Alterations shall be constructed only after necessary permits,
licenses and approvals have been obtained by Subtenant from appropriate
governmental agencies. All Alterations shall be constructed in a good and
workmanlike manner using materials of a quality comparable to those on the
Premises, and shall conform to all relevant codes regulations and
ordinances. All such Alterations shall be made at Subtenant's sole cost and
expense and shall be diligently prosecuted to completion. Any contractor or
person making such Alterations shall first be approved in writing by
Sublandlord, and Sublandlord may require that all work be performed under
its supervision. Upon the expiration or earlier termination of this
Sublease, Sublandlord may elect to have Subtenant either (i) surrender with
the Premises any or all of such Alterations as Sublandlord shall determine
(except personal property as provided in Subparagraph (b) below), in which
case, such Alterations shall become the property of Sublandlord, or
(ii) promptly remove any or all of such Alterations designated by
Sublandlord to be removed, in which case Subtenant shall, at its sole cost
and expense, repair and restore the Premises to its original condition as
of the Commencement Date, reasonable wear and tear excepted. Subtenant
shall permit no mechanic's or other liens to be recorded against the
Premises. Should a lien be made or filed against the Premises or real
property on which the Premises are situated, Subtenant shall, at its sole
cost, bond against or discharge said lien within ten (10) days after
Sublandlord's or Master Landlord's request to do so.
(b) Removal of Personal Property. All articles of personal property,
and all business and trade fixtures, machinery and equipment, cabinet work,
furniture and movable partitions, if any, owned or installed by Subtenant
at its expense in the Premises shall be and remain the property of
Subtenant and may be removed by Subtenant at any time, provided that
Subtenant, at its expense, shall repair any damage to the Premises caused
by such removal or by the original installation. Sublandlord may elect to
require Subtenant to remove all or any part of such property at the
expiration or sooner termination of this Sublease, in which event such
removal shall be done at Subtenant's expense, and Subtenant shall at its
own expense repair any damage to the Premises caused by such removal prior
to the termination of this Sublease.
14.Holding over. If Subtenant holds over after the expiration or earlier
termination of this Sublease, with or without the express or implied
consent of Sublandlord, then at the option of Sublandlord, Subtenant shall
become and be only a month-to-month tenant at a rent equal to one hundred
and fifty percent --(l50%) of the rent payable by Subtenant immediately
prior to such expiration or termination, and otherwise upon the terms,
238
covenants and conditions herein specified. Notwithstanding any provision to
the contrary contained herein, (i) Sublandlord expressly reserves the right
to require Subtenant to surrender possession of the Premises upon the
expiration of the term hereof or upon the earlier termination hereof and
the right to assert any remedy at law or in equity to evict Subtenant
and/or collect damages in connection with any such holding over, and (ii)
Subtenant shall indemnify, defend and hold Sublandlord harmless from and
against any and all liabilities, claims, demands, actions, losses, damages,
obligations, costs and expenses, including, without limitation, attorneys'
fees including the allocated costs of Sublandlord's in-house attorneys)
incurred or suffered by Sublandlord by reason of Subtenant's failure to
surrender the Premises on the expiration or earlier termination of this
Sublease in accordance with the provisions of this Sublease.
15.Liens. Subtenant will keep the Premises and the Project free from any
liens arising out of any work performed, materials furnished, or
obligations incurred by Subtenant. Sublandlord has the right to post and
keep posted on the Premises any notices that may be provided by law or
which Sublandlord may deem to be proper for the protection of Sublandlord,
the Premises and the Project from such liens.
16.Maintenance and Repairs. Subtenant acknowledges that the Premises are in
good order and repair. At all times during the term of this Sublease,
Subtenant, at its sole cost and expense, will maintain the Premises and
every part thereof and all equipment, fixtures and improvements therein in
good condition and repair. At the end of the term of this Sublease,
Subtenant will surrender the Premises in as good condition as received,
normal wear and tear excepted. Subtenant shall be responsible for all
repairs required to be performed by the Tenant under the Master Lease.
17.Insurance. At all times during the term of this Sublease, Subtenant
shall, at its sole expense, procure and maintain the following types and
amounts of insurance coverage (but in no event less than the types and
amounts of amounts of coverage required from time to time under the Master
Lease):
17.1 Comprehensive general liability insurance against any and all
damages and liability, including attorneys' fees on account or arising out
of injuries to or the death of any person or damage to property, however
occasioned, in, on or about the Premises with at least a single combined
liability and property damage limit of $1,000,000.
17.2 Insurance on all plate or tempered glass in or enclosing the
Premises, for the replacement cost of such
glass.
17.3 Insurance adequate in amount to cover damage to the Premises
including, without limitation, leasehold improvements, trade fixtures,
furnishings, equipment, goods and inventory.
17.4 Rent insurance in an amount equal to all rent and other sums or
239
charges payable under this Sublease for period of at least twelve (12)
months commencing with the date of loss.
17.5 Employer's liability insurance and worker's compensation
insurance as required by applicable law.
17.6 All such insurance shall be in a form satisfactory to Sublandlord
and carried with companies reasonably acceptable to Sublandlord. Subtenant
shall provide Sublandlord with a certificate of insurance showing
Sublandlord as additional insured. The certificate shall provide for a
thirty-day written notice to Sublandlord in the event of cancellation or
material change of coverage.
17.7 Sublandlord and Subtenant shall each obtain from their respective
insurers under all policies of fire, theft, public liability, workers'
compensation and other insurance maintained by either of them at any time
during the term hereof insuring or covering the Premises, a waiver of all
rights of subrogation which the insurer of one party might otherwise have,
if at all, against the other party.
18.Events of Default. If one or more of the following events ("Event of
Default") occurs, such occurrence constitutes a breach of this Sublease by
Subtenant:
18.1 Subtenant abandons or vacates the Premises; or
18.2 Subtenant fails to pay any monthly Basic Monthly Rent or
Operating Expenses and Taxes, if applicable, as and when the same become
due and payable, and such failure continues for more than three (3) days
after Sublandlord gives written notice thereof to Subtenant; or
18.3 Subtenant fails to pay any other sum or charge payable by
Subtenant hereunder as and when the same becomes due and payable, and such
failure continues for more than twenty-five (25) days after Sublandlord
gives written notice thereof to Subtenant; or
18.4 Subtenant fails to perform or observe any other agreement,
covenant, condition or provision of this Sublease to be performed or
observed by Subtenant as and when performance or observance is due, and
such failure continues for more than twenty-five (25) days after
Sublandlord gives written notice thereof to Subtenant, or if the default
cannot be cured within said twenty-five (25) day period and Subtenant fails
within said period to commence with due diligence and dispatch the curing
of such default or, having so commenced, thereafter fails to prosecute or
complete with due diligence and dispatch the curing of such default; or
18.5 Subtenant (a) files or consents by answer or otherwise to the
filing against it of a petition for relief or reorganization or arrangement
or any other petition in bankruptcy or liquidation or to take advantage of
any bankruptcy or insolvency law of any jurisdiction; (b) makes an
assignment for the benefit of its creditors; (c) consents to the
appointment of a custodian, receiver, trustee or other officer with similar
powers of itself or of any substantial part of its property; or (d) takes
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action for the purpose of any of the foregoing; or
18.6 A court or governmental authority of competent jurisdiction,
without consent by Subtenant, enters an order appointing a custodian,
receiver, trustee or other officer with similar powers with respect to it
or with respect to any substantial portion of its property, or constituting
an order for relief or approving a petition for relief or reorganization or
any other petition in bankruptcy or insolvency law of any jurisdiction, or
ordering the dissolution, winding up or liquidation of Subtenant, or if any
such petition is filed against Subtenant and such petition is not dismissed
within thirty (30) days; or
18.7 This Sublease or any estate of Subtenant hereunder is levied upon
under any attachment or execution and such attachment or execution is not
vacated within thirty (30) days.
19. Remedies of Sublandlord on Default.
19.1 In the event of any breach of this Sublease by Subtenant,
Sublandlord may, at its option, terminate the Sublease and recover from
Subtenant (a) the worth at the time of award of the unpaid rent which was
earned at the time of termination; (b) the worth at the time of award of
the amount by which the unpaid rent which would have been earned after
termination until the time of the award exceeds the amount of such rental
loss that the Subtenant proves could have been reasonably avoided; (c) the
worth at the time of award of the amount by which the unpaid rent for the
balance of the term after the time of award exceeds the amount of such
rental loss that Subtenant proves could be reasonably avoided; and (d) any
other amount necessary to compensate Sublandlord for all detriment
proximately caused by Subtenant's failure to perform this obligations under
the Lease or which in the ordinary course of things would be likely to
result therefrom.
19.2 Sublandlord may, in the alternative, continue this Sublease in
effect, as long as Sublandlord does not terminate Subtenant's right to
possession, and Sublandlord may enforce all its.rights and remedies under
the Sublease, including the right to recover the rent as it becomes due
under the Sublease. If said breach of the Sublease continues, Sublandlord
may, at any time thereafter, elect to terminate the Sublease. Sublandlord
shall not be deemed to have terminated this Sublease or the liability of
Subtenant to pay rent or any other amounts due hereunder by any reentry or
by any action in unlawful detainer, unless Sublandlord shall have
specifically notified Subtenant in writing that Sublandlord has elected to
terminate this Sublease. Nothing contained herein shall be deemed to limit
any other rights or remedies which Sublandlord may have.
20. Estoppal Certificates.
20.1 Subtenant shall at any time upon not less than ten (10) days'
prior written notice from Sublandlord execute, acknowledge and deliver to
Sublandlord a statement in writing (i) certifying that this Sublease is
unmodified and in full force and effect (or, if modified, stating the
nature of such modification and certifying that this Sublease, as so
modified, is in full force and effect), the amount of any security deposit,
241
and the date to which the rent and other charges are paid in advance, if
any, and (ii) acknowledging that there are not, to Subtenant's knowledge,
any uncured defaults on the part of Sublandlord hereunder or of Master
Landlord under the Master Lease, or specifying such defaults if any are
claimed. Any such statement may be conclusively relied upon by any
prospective purchaser or encumbrancer to the Premises.
20.2 At Sublandlord's option, Subtenant's failure to deliver such
statement within such time shall be conclusive upon Subtenant (i) that this
Sublease is in full force and effect, without modification except as may be
represented by Sublandlord, (ii) that there are no uncured defaults in
Sublandlord's performance hereunder or in Master Landlord's performance
under the Master Lease, and (iii) that not more than one month's rent has
been paid in advance, or such failure may be considered by Sublandlord as a
material default by Subtenant under this Sublease.
20.3 If the Master Landlord desires to finance, refinance, or sell the
Premises, or any part thereof, Subtenant hereby agrees to deliver to any
lender or purchaser designated by Master Landlord such financial statements
of Subtenant as may be reasonably required by such lender or purchaser.
Such statements shall include the past three years' financial statements of
Subtenant.
21.Real Estate Brokers. Each party warrants to the other that there are no
brokerage commissions or fees payable in connection with this Sublease
except to the broker set forth in Paragraph 2.20. Each party further agrees
to indemnify and hold the other party harmless, from any cost, liability
and expense (including attorney's fees and the allocated costs of
Sublandlord's in-house attorneys) which the other party may incur as the
result of any breach of this Paragraph 21.
22. ARBITRATION OF DISPUTES.
The provisions of this Paragraph 22 shall apply to the resolution of
disputes between Sublandlord and Subtenant unless the Master Landlord is or
may become a party to the dispute, in which event the provisions of this
Paragraph 22 shall apply only if the Master Landlord agrees to settle the
dispute pursuant to the terms hereof.
ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS SUBLEASE
OR ANY AGREEMENTS OR INSTRUMENTS RELATING HERETO OR DELIVERED IN CONNECTION
HEREWITH, INCLUDING BUT NOT LIMITED TO A CLAIM BASED ON OR ARISING FROM AN
ALLEGED TORT WILL, AT THE REQUEST OF ANY PARTY, BE DETERMINED BY
ARBITRATION IN ACCORDANCE WITH THE FEDERAL ARBITRATION ACT (9 U.S.C.
SECTION 1 ET SEQ.) UNDER THE AUSPICES AND RULES OF THE AMERICAN ARBITRATION
ASSOCIATION (-AAA"). THE AAA SHALL BE INSTRUCTED BY EITHER OR BOTH OF THE
PARTIES TO PREPARE A LIST OF THREE (3) JUDGES WHO HAVE RETIRED FROM THE
SUPERIOR COURT OF THE STATE OF CALIFORNIA, A HIGHER CALIFORNIA COURT OR ANY
FEDERAL COURT. WITHIN TEN (10) DAYS OF RECEIPT OF THE LIST, EACH PARTY MAY
STRIKE ONE (1) NAME FROM THE LIST. THE AAA WILL THEN APPOINT THE ARBITRATOR
FROM THE NAME(S) REMAINING ON THE LIST. THE ARBITRATION PROCEEDING SHALL BE
CONDUCTED IN SAN FRANCISCO, LOS ANGELES OR SAN DIEGO, WHICHEVER IS THE
CLOSEST CITY TO THE NEXUS OF THE DISPUTE. ANY CONTROVERSY IN INTERPRETATION
242
OR ENFORCEMENT OF THIS PROVISION, OR WHETHER A DISPUTE IS ARBITRABLE, SHALL
BE DETERMINED BY THE ARBITRATOR(S). JUDGMENT UPON THE AWARD RENDERED BY THE
ARBITRATOR(S) MAY BE ENTERED IN ANY COURT HAVING JURISDICTION. THE
INSTITUTION AND MAINTENANCE OF AN ACTION FOR JUDICIAL RELIEF OR IN PURSUIT
OF A PROVISIONAL OR ANCILLARY REMEDY DOES NOT CONSTITUTE A WAIVER OF THE
RIGHT OF ANY PARTY, INCLUDING THE PLAINTIFF, TO SUBMIT THE CONTROVERSY OR
CLAIM TO ARBITRATION. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE
FOREGOING, THE PARTIES HERETO ACKNOWLEDGE AND AGREE THAT THE PROVISIONS OF
THIS PARAGRAPH 22 WILL NOT APPLY TO ANY SUMMARY PROCEEDINGS TO OBTAIN
POSSESSION OF REAL PROPERTY PURSUANT TO CHAPTER 4 OF THE CALIFORNIA CODE OF
CIVIL PROCEDURE (SECTION 1159 ET SEQ.) AS AMENDED FROM TIME TO TIME OR ANY
SIMILAR LAW, STATUTE OR ORDINANCE NOW OR HEREAFTER IN EFFECT.
NOTICE: BY INITIALLING IN THE SPACE BELOW YOU ARE AGREEING TO HAVE ANY
DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THE "ARBITRATION OF
DISPUTES" PROVISION DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY
CALIFORNIA LAW AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE
THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL. BY INITIALLING IN THE SPACE
BELOW YOU ARE GIVING UP YOUR JUDICIAL RIGHTS TO DISCOVERY AND APPEAL UNLESS
THOSE RIGHTS ARE SPECIFICALLY INCLUDED IN THE "ARBITRATION OF DISPUTES"
PROVISION. IF YOU REFUSE TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS
PROVISION, YOU MAY BE COMPELLED TO ARBITRATE UNDER THE AUTHORITY OF THE
CALIFORNIA CODE OF CIVIL PROCEDURE. YOUR AGREEMENT TO THIS ARBITRATION
PROVISION IS VOLUNTARY.
WE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT DISPUTES
ARISING OUT OF THE MATTERS INCLUDED IN THE "ARBITRATION OF DISPUTES"
PROVISION TO NEUTRAL ARBITRATION.
/s/ Jay W,. Coleman /s/ Mark Friedman
SUBTENANT'S SUBLANDLORD'S
INITIALS INITIALS
23.Master Landlord Default; Consents. Notwithstanding any provision of this
Sublease to the contrary, (a) Sublandlord shall not be liable or
responsible in any way for any loss, damage, cost, expense, obligation or
liability suffered by Subtenant by reason or as the result of any breach,
default or failure to perform by the Master Landlord under the Master
Lease, and (b) whenever the consent or approval of Sublandlord and Master
Landlord is required for a particular act, event or transaction (i) any
such consent or approval by Sublandlord shall be subject to the consent or
approval of Master Landlord, and (ii) should Master Landlord refuse to
grant such consent or approval, under all circumstances, Sublandlord shall
be released from any obligation to grant its consent or approval.
24.Notices. All notices or other communications required or permitted
hereunder must be in writing, and be personally delivered (including by
means of professional messenger service) or sent by registered or certified
mail, postage prepaid, return receipt requested to the addresses set forth
in Paragraph 2.18. All notices will be deemed received on the date sent.
243
25.Master Landlord's Consent. This Sublease is expressly conditioned upon
receipt of the written consent of Master Landlord within ten (10) days from
the date of this Sublease.
(Signature Page Follows)
IN WITNESS WHEREOF, Sublandlord and Subtenant have executed this
Sublease as of the day and year first above written.
SUBLANDLORD
Bank of America National Trust and Savings Association
By: /s/ Steve Ohigashi
Title: Dispositions Manager
By: /s/ Yvonne Tom
Title: Vice President
SUBTENANT
Chino Valley Bank
By: /s/ Jay W. Coleman
Title: Executive Vice President
By: /s/ Robert J. Schurheck
Title: E.V.P. & C.F.O.
244
CONSENT OF MASTER LANDLORD
("Master Landlord"), hereby consents to the
foregoing Sublease.
Date: 10/15/93
MASTER LANDLORD
Sinclair-Arcadia, L.P.,
a California limited
partnership
By: /S/ Keith Sinclar
Name: Keith Sinclar
Its General Partner
245
FIRST AMENDMENT TO SUBLEASE
(LSN 800191)
This Amendment to Sublease ("Amendment") is made this 22nd day of
October, 1993 by and between Bank of America National Trust and Savings
Association, a national banking association ("Sublandlord") and Chino
valley Bank ("Subtenant") as an amendment to that certain Sublease dated
September 9, 1993 between Sublandlord and Subtenant ("Subleasell).
Sublandlord and Subtenant wish to amend the Sublease as follows:
1.Paragraph 2.4 is amended in its entirety to read as follows:
112.4 Commencement Date: October 15, 1993.11
2.With reference to Paragraphs 2.6, 2.8 and 2.11, based on the
established Commencement Date Of October 15, 1993, the one-half rental
abatement under Paragraph 2.11 will commence on October 15, 1993 and
end on August 15, 1994 and the one-half rental abatement under
Paragraph 2.8 will commence on August 16, 1994 and end with the
November 1, 1995 payment in the amount of $6,345, calculated by
subtracting from the full Basic Monthly Rent of $9,860 the sum of
$3,515 which will be the balance of the $75,000 Subtenant Improvement
Concession of $3,515. Attached bereto as Schedule 1 is a payment
schedule for the entire Sublease term.
3.As modified herein, the Sublease is hereby ratified by Sublandlord
and Subtenant.
(Signature page follows)
246
SUBLANDLORD
Bank of America National Trust and
Savings Association
By:
Title:
By :
Title:Vice President
SUBTENANT
Chino Valley Bank
By: /s/ Jay W. Coleman
Title: E.V.P.
By: /s/ Robert J. Schurheck
Title:E.V.P. & C.F.O.
247
SCHEDULE 1
Payment Date Period Covered Amount Due
11/01/93 10/15 - 10/31 = $2,465 -1/ $7,395
11/01 - 11/30 = $4,930
12/01/93 12/01/93 - 12/31/93 4,930
01/01/94 01/01/94 - 01/31/94 4,930
02/01/94 02/01/94 - 02/28/94 4,930
03/01/94 03/01/94 - 03/31/94 4,930
04/01/94 04/01/94 - 04/30/94 4,930
05/01/94 05/01/94 - 05/31/94 4,930
06/01/94 06/01/94 - 06/30/94 4,930
07/01/94 07/01/94 - 07/31/94 4,930
08/01/94 08/01/94 - 08/15/94 = $2,465 -2/
08/16/94 - 08/31/94 = $2,465 -3/
09/01/94 09/01/94 - 09/30/94 4,930
10/01/94 10/01/94 - 10/31/94 4,930
11/01/94 11/01/94 - 11/30/94 4,930
12/01/94 12/01/94 - 12/31/94 4,930
01/01/95 01/01/95 - 01/31/95 4,930
02/01/95 02/01/95 - 02/28/95 4,930
03/01/95 03/01/95 - 03/31/95 4,930
04/01/95 04/01/95 - 04/30/95 4,930
05/01/95 05/01/95 - 05/31/95 4,930
06/01/95 06/01/95 - 06/30/95 4,930
07/01/95 07/01/95 - 07/31/95 4,930
08/01/95 08/01/95 - 08/31/95 4,930
09/01/95 09/01/95 - 09/30/95 4,930
10/01/95 10/01/95 - 10/31/95 4,930
11/01/95 11/01/95 - 11/30/95 -4/ 6,345
12/01/95 and the first day of each month thereafter through,
June 1, 1997 12/01/95 - 06/30/97 9,860
07/01/97 and the first day of."each month thereafter through
April 1, 2001 07/01/97 -5/ -04/30/01 10,846
1/Commencement of rental abatement period under Paragraph 2.11.
2/End of rental abatement period under Paragraph 2.11.
3/Commencement of rental abatement period for under Paragraph 2.8.
248
4/End of rental abatement period under Paragraph 2.8.
5/Rental adjustment under Paragraph 2.10.
249
Office Building Lease
CB Commercial Real State Group, Inc.
Brokerage and Management
Licensed Real Estate Broker
Table of Contents
Article 1 Lease of Premises
Article 2 Definitions
Article 3 Exhibits and Addenda
Article 4 Delivery of Possession
Article 5 Rent
Article 6 Interest and Late Charges
Article 7 Security Deposit
Article 8 Tenant's Use of the Premises
Article 9 Services and Utilities
Article 10 Condition of Premises
Article 11 Construction, Repairs and Maintenance
Article 12 Alterations and Additions
Article 13 Leasehold Improvements; Tenants Property
Article 14 Rules and Regulations
Article 15 Certain Rights Reserved by Landlord
Article 16 Assignment and Subletting
Article 17 Holding Over
Article 18 Surrender of Premises
Article 19 Destruction or Damage
Article 20 Eminent Domain
Article 21 Indemnification
Article 22 Tenant's Insurance
Article 23 Waiver of Subrogation
Article 24 Subordination and Attornment
Article 25 Tenant Estoppel Certificates
Article 26 Transfer of landlord's Interest
Article 27 Default
Article 28 Brokerage Fees
Article 29 Notices
Article 30 Government Energy or Utility Controls
Article 31 Relocation of Premises
Article 32 Quiet Enjoyment
Article 33 Observance of Law
Article 34 Force Majeure
Article 35 Curing Tenant's Defaults
Article 36 Sign Control
Article 37 Miscellaneous
250
This Lease between RCI - Loring, L.P., a California limited partnership
("Landlord"), and C.V.B. Financial Corporation a California corporation,
("Tenant"), is dated March 1, 1993.
1. Lease of Premises
In Consideration of the Rent (as defined at Section 5.4) and the provisions
of this Lease, Landlord leases to Tenant and Tenant leases from the
Landlord the Premises show by diagonal lines on the floor plan attached
hereto as Exhibit "A", and further described at Section 2l. The Premises
are located within the Building and Project described in Section 2m.
Tenant shall have the non-exclusive right (unless otherwise provided
herein) in common with Landlord, other tenants, subtenants and invitees, to
use the Common Areas (as defined at Section 2e).
2. Definitions
As used in this Lease, the following terms shall have the following
meanings:
a. Base Rent (initial): $ 65,511.00 per year.
b. Base Year: The calendar year of 1993.
c. Broker(s)
Landlord's: None
Tenant's: None
In the event that CB Commercial Real Estate Group, Inc. represents both
Landlord and Tenant, Landlord and Tenant hereby confirm that they were
timely and advised of the dual representation and that they consent to the
same, and that they do not expect said broker to disclose to either of them
the confidential information of the other party.
d. Commencement Date: Upon obtaining a Certificate of Occupance for the
space.
e. Common Areas: the building lobbies, common corridors and hallways,
restrooms, garage and parking areas, stairways, elevators and other
generally understood public or common areas. Landlord shall have the right
to regulate or restrict the use of the Common Areas.
f. Expense Stop: (fill in if applicable): $ Base Year.
g. Expiration Date: November 30, 2000 or 90 months from commencement
date, unless otherwise sooner determined in accordance with the provisions
of this Lease.
h. Index (Section 5.2): United States Department of Labor, Bureau of Labor
Statistics Consumer Price Index for All Urban Consumers, Average Subgroup
"All Items" (1967=100).
i. Landlord's Mailing Address: 3516 9th Street, Suite F
Riverside, CA 92501
Tenant's Mailing Address: 701 N. Haven Avenue
P.O. Box 51000
251
Ontario, CA 91761
j. Monthly Installments of Base Rent (initial): $5,459.25 per month.
k. Parking: Tenant shall be permitted, upon payment of the then prevailing
monthly rate (as set by the Landlord from time to time) to park ten (10)
cars on a non-exclusive basis in the area(s) designated by Landlord for
parking. Tenant shall abide by any and all parking regulations and rules
established from time to time by Landlord or Landlord's parking operator.
l. Premises: that portion of th Building containing approximately 3.675
square feet of Rentable Area shown by diagonal lines on Exhibit "A",
located on the first floor of the Building and known as 3595 Main Street.
m. Project: the building of which the Premises are part (the "Building")
and any other buildings or improvements on the real property (the
"Property") located at 3671-3695 Main Street, Riverside, CA 92501 and
further described at Exhibit "B". The Project is known as the Loring
Building.
n. Rentable Areas: as to both the Premises and the Project, the respectable
measurements of floor area as may from time to time be subject to lease by
Tenant and all tenants of the Project, respectively, as determined by
Landlord and applied on a consistent basis throughout the Project.
o. Security Deposit (Section 7): $ 5,459.25
p. State: the State of California.
q. Tenant's First Adjustment Date (Section 5.2): the first day of the
calendar month following the Commencement Date plus 30 months.
r. Tenant's Proportionate Share 15.16%. Such share is a fraction, the
numerator of which is the Rentable Area of the Premises, and the
denominator of which is the Rentable Area of the Project, as determined by
Landlord from time to time. The Project consists of one (1) building(s)
containing a total Rentable Area of 24,827 square feet.
s. Tenant's Use Clause (Article 8): Tenant shall use the premises for a
bank operation and related uses.
t. Term: the period commencing on the Commencement Date and expiring at
midnight on the Expiration Date.
3. Exhibits and Addenda
The exhibits and addenda listed below (unless lined out) are incorporated
by reference in this Lease:
a. Exhibit "A" - Floor Plan showing the Premises.
b. Exhibit "B" - Site Plan of the Project.
f. Addenda: f.1, f.2, f.3, f.4
4. Delivery of Possession
252
If for any reason, Landlord does not deliver possession of the Premises to
Tenant on the Commencement Date, Landlord shall not be subject to any
liability for such failure, the Expiration Date shall not change and the
validity of this Lease shall not be impaired, but Rent shall be abated
until delivery of possession. "Delivery of possession" shall be deemed to
occur on the date Landlord completes Landlord's Work as defined in Exhibit
"C". If Landlord permits Tenant to enter into possession of the Premises
before the Commencement Date, such possession shall be subject to the
provisions of this Lease, including, without limitation, the payment of
Rent.
5. Rent
5.1. Payment of Base Rent. Tenant agrees to pay the Base Rent for the
Premises. Monthly Installations of Base Rent shall be payable in advance
on the first day of each calendar month of the Term. If the Term begins (or
ends) on other than the first (or last) day of the a calendar month, the
Base Rent for the partial month shall be prorated on a per diem basis.
Tenant shall pay Landlord the first Monthly Installment of Base Rent when
Tenant executes the Lease.
5.2. Adjusted Base Rent.
a. The Base Rent (and the corresponding Monthly Installments of Base
Rent) set forth at Section 2a shall be adjusted annually (the "Adjustment
Date"), commencing on Tenant's First Adjustment Date, Adjustments, if any,
shall be based upon increases (if any) in the Index. The Index in
publication three (3) months before each Adjustment Date shall be the
"Comparison Index." As of each Adjustment Date, the Base Rent payable
during the ensuing twelve-month period shall be determined by increasing
the initial Base Rent by a percentage equal to the percentage increase, if
any, in the Comparison Index over the Base Index. If the Comparison Index
for any Adjustment Date is equal to or less than Comparison Index for the
preceding Adjustment Date (or the Base Index, in the case of First
Adjustment Date), the Base Rent for the ensuing twelve-month period shall
remain the amount of Base Rent payable during the preceding twelve-month
period. When the Base Rent payable as of each Adjustment Date is
determined, Landlord shall promptly give Tenant written notice of such
adjusted Base Rent and the manner in which it was computed. The Base Rent
as so adjusted from time to time shall be the "Base Rent" for all purposes
under this Lease.
b. If at any Adjustment Date the Index no longer exists in the form
described in this lease, Landlord may substitute any substantially
equivalent official index published by the Bureau of Labor Statistics or
its successor. Landlord shall use any appropriate conversion factors to
accomplish such substitution. The substitute index shall then become the
"Index" hereunder.
5.3. Project Operating Costs.
a. In order that the Rent payable during the Term reflect any increase in
Project Operating Costs, Tenant agrees to pay to Landlord as Rent, Tenant's
Proportionate Share of all increases in costs, expenses, and obligations
attributable to the Project and its operation, all as provided below.
253
b. If during any calendar year during the Term, Project Operating Costs
exceed the Project Operating Costs for the Base Year, Tenant shall pay to
Landlord, in addition to the Base Rent and all other payments due under
this lease, an amount equal to Tenant's Proportionate Share of such excess
Project Operating Costs in accordance with the provisions of this Section
5.3b.
(1) The term "Project Operating Costs" shall include all those items
described in the following subparagraphs (a) and (b).
(a) All taxes, assessments, water and sewer charges and other similar
governmental charges levied on or attributable to the Building or Project
or their operation, including without limitation, (i) real property taxes
or assessments levied pr assessed against the Building or Project, (ii)
assessments or charges levied or assessed against the Building or Project
by any redevelopment agency, (iii) any tax measured by gross rentals
received from the leasing of the Premises, Building or Project, excluding
any net income, franchise, capital stock, estate or inheritance taxes
imposed by the State or federal government or their agencies, branches or
departments; provided that if at any time during the Term any governmental
entity levies, assesses or imposes on Landlord any (1) general or special,
ad valorem or specific, excise, capital levy or other tax, assessment, levy
or charge based directly or indirectly upon the transaction represented by
this Lease or on the rent received under any other leases of space in the
Building or Project, or (2) any license fee, excise or franchise tax,
assessment, levy or charge measured by or based, in whole or in part, upon
such rent , or (3) any transfer, transaction, or similar tax, assessment,
levy or charge based directly or indirectly upon the transaction
represented by this Lease or such other leases, or (4) any occupancy, use,
per capita or other tax, assessment, levy or charge based directly or
indirectly upon the use or occupancy of the Premises or other premises
within the Building or Project, then any such taxes, assessments, levies
and charges shall be deemed to be included in the term Project Operating
Costs. If at any time during the Term the assessed valuation of or taxes
on, the Project are not based on a completed Project having at least eight-
five percent (85%) of the Rentable Area occupied, then the "taxes"
component of Project Operating costs shall be adjusted by Landlord to
reasonably approximate the taxes which would have been payable if the
Project were completed and at least eighty-five percent (85%) occupied.
Further, in no event shall the total rent exceed one hundred fourty-two
percent (142%) of the base rent.
(2) Tenant's Proportionate Share of Project Operating Costs shall be
payable by Tenant to Landlord as follows:
(a) Beginning with the calendar year following the Base Year and for each
calendar year thereafter ("Comparison Year"), Tenant shall pay Landlord an
amount equal to Tenant's Proportionate Share of the Project Operating Costs
incurred by Landlord in the Comparison Year which exceeds the total amount
of Project Operating Costs payable by Landlord for the Base Year. This
excess is referred to as the "Excess Expenses."
(b) To provide for current payments of Excess Expenses, Tenant shall, at
Landlord's request, pay as additional rent during each Comparison Year, an
amount equal to Tenant's Proportionate Share of the Excess Expenses payable
during such Comparison Year, as estimated by Landlord from time to time.
Such payments shall be made in monthly installments, commencing on the
254
first day of the month following the month in which Landlord notifies
Tenant of the amount it is to pay hereunder and continuing until the first
day of the month following the month in which Landlord gives Tenant a new
notice of estimated Excess Expenses. It is the intention hereunder to
estimate from time to time the amount of the Excess Expenses for each
Comparison year and Tenant's Proportionate Share thereof, and then to make
an adjustment in the following year based on the actual Excess Expenses
incurred for that Comparison Year.
(c) On or before April 1 of each Comparison Year after the first Comparison
Year after the first Comparison Year (or as soon thereafter as is
practical), Landlord shall deliver to Tenant a statement setting forth
Tenant's Proportionate Share of the Excess Expenses for the preceding
Comparison Year. If Tenant's Proportionate Share of the actual Excess
Expenses for the previous Comparison Year exceeds the total of the
estimated monthly payments made by Tenant for such year, Tenant shall pay
Landlord the amount of the deficiency within ten (10) days of the receipt
of the statement. If such total exceeds Tenant's Proportionate Share of the
actual Excess Expenses for such Comparison Year, then Landlord shall credit
against Tenant's next ensuing monthly installment(s) of additional rent an
amount equal to the difference until the credit is exhausted. If a credit
is due from Landlord on the Expiration Date, Landlord shall pay Tenant the
amount of the credit. The obligations of Tenant and Landlord to make
payments required under this Section 5.3 shall survive the Expiration Date.
(d) Tenant's Proportionate Share o Excess Expenses in any Comparison Year
having less than 365 days shall be appropriately prorated.
(e) If any dispute arises as to the amount of any additional rent due
hereunder, Tenant shall have the right after reasonable notice and at
reasonable times to inspect Landlord's accounting records at Landlord's
accounting office and, if after such inspection Tenant still disputes the
amount of additional rent owed, a certification as to the proper amount
shall be made by Landlord's certified public accountant, which
certification shall be final and conclusive. Tenant agrees to pay the cost
of such certification unless it is determined that Landlord's original
statement overstated Project Operating Costs by more than five percent
(5%).
(f) If this Lease sets forth an Expense Stop at Section 2f, then during the
Term Tenant shall be liable for Tenant's Proportionate Share of any actual
Project Operating Costs which exceed the amount of the Expense Stop.
Tenant shall make current payments of such excess costs during the Term in
the same manner as is provided for payment of Excess Expenses under the
applicable provisions of Section 5.3b(2)(b) and (c) above.
5.4 Definition of Rent. All costs and expenses which Tenant assumes or
agrees to pay to Landlord under this Lease shall be deemed additional rent
(which, together with the Base Rent is sometimes referred to as the
"Rent"). The Rent shall be paid to the Building manager (or other person)
and at such place, as Landlord may from time to time designate in writing,
without any prior demand therefor and without deduction or offset, in
lawful money of United States of America.
5.5 Rent Control. If the amount of Rent or any other payment due under
this Lease violates the terms of any governmental restrictions on such Rent
or payment, then the Rent or payment due during the period of such
restrictions shall be the maximum amount allowable under those
255
restrictions. Upon termination of the restrictions, Landlord shall, to the
extent it is legally permitted, recover from Tenant the difference between
the amounts received during the period of the restrictions and the amounts
Landlord would have received had there been no restrictions.
5.6 Taxes Payable by Tenant. In addition to the Rent and any other charges
to be paid by Tenant hereunder, Tenant shall reimburse Landlord upon demand
for any and all taxes payable by Landlord (other than net income taxes)
which are not other wise reimbursable under this Lease, whether or not now
customary within the contemplation of the parties, where such taxes are
upon, measured by or reasonably attributable to (a) the cost or value of
Tenant's equipment, furniture, fixtures and other personal property located
in the Premises, or the cost or value or any leasehold improvements made in
or to the Premises by or for Tenant other than Building Standard Work made
by Landlord, regardless of whether title to such any rental or gross
receipts tax levied by any taxing authority with respect to the receipt of
the Rent hereunder; (c) the possession, leasing, operation, management,
maintenance, alteration, repair, use or occupancy by Tenant of the Premises
or any portion thereof; or (d) this transaction or any document to which
Tenant is a party creating or transferring an interest or an estate in the
Premises. It if becomes unlawful for Tenant to reimburse Landlord for any
costs as required under this Lease, the Base Rent shall be revised to net
Landlord the same net Rent after imposition of any tax or other charge upon
Landlord as would have been payable to Landlord but for the reimbursement
being unlawful.
6. Interest and Late Charges
If Tenant fails to pay when due any Rent or other amounts or charges which
Tenant is obligated to pay under the terms of this Lease, the unpaid
amounts shall bear interest at the maximum rate then allowed by law.
Tenant acknowledges that the late payment of any Monthly Installment of
Base Rent will cause Landlord to lose the use of that money and incur costs
and expenses not contemplated under this Lease, including without
limitation, adminstatrative and collection costs and processing and
accounting expenses, the exact amount of which is extremely difficult to
ascertain. Therefore, in addition to interest, if an y such installment is
not received by Landlord with ten (10) days from the date it is due, Tenant
shall pay Landlord a late charge equal to ten percent (10%) of such
installment. Landlord and Tenant agree that this late charge represents
reasonable estimate of such costs and expenses and is fair compensation to
Landlord for the loss suffered from such nonpayment by Tenant. Acceptance
of any interest or late charge shall not constitute a waiver of Tenant's
default with respect to such nonpayment by Tenant nor prevent Landlord from
exercising any other rights or remedies available to Landlord under this
Lease.
7. Security Deposit
Tenant agrees to deposit with Landlord the Security Deposit set forth at
Section 2.0 upon execution of this Lease as security for Tenant's faithful
performance of its obligations under this Lease. Landlord and Tenant agree
that the Security Deposit may be commingled with funds of Landlord and
Landlord shall have no obligation or liability for payment of interest on
256
such deposit. Tenant shall not mortgage, assign, transfer or encumber the
Security Deposit without the prior written consent of Landlord and any
attempt by Tenant to do so shall be void, without force or effect and shall
not be binding upon Landlord.
If Tenant fails to pay any Rent or other amount when due and payable under
this Lease, or fails to perform any of the terms hereof, Landlord may
appropriate and apply or use all or any portion of the Security Deposit for
Rent Payments or any other amount then due and unpaid, for payment of any
amount for which Landlord has become obligated as a result of Tenant's
default or breach and use this deposit without prejudice to any other
remedy Landlord may have by reason of Tenant's default or breach. If
Landlord so uses any of the Security Deposit, Tenant shall, within ten (10)
days after written demand therefor, restore the Security Deposit to the
full amount originally deposited; Tenant's failure to do so shall
constitute an act of default after the Term (or any extension thereof) has
expired or Tenant has vacated the Premises, whichever shall have the right
to exercise any remedy provided for at Article 27 hereof. Within fifteen
(15) days provided Tenant is not then in default on any of its obligations
hereunder, Landlord shall return the Security Deposit to Tenant, or if
Tenant has assigned its interest under this Lease, to the last assignee of
Tenant. If Landlord sells its interest in the Premises, Landlord may
deliver this deposit to the purchaser of Landlord's interest and thereupon
be relieved of any further liability or obligation with respect to the
Security Deposit.
8. Tenant's Use of the Premises
Tenant shall use the Premises solely for the purposes in the Tenant's Use
Clause. Tenant shall not use or occupy the Premises in violation of law or
any covenant, condition or restriction affecting the Building or Project or
the certificate of occupancy issued for the Building or Project, and shall,
upon notice from Landlord, immediately discontinue any use of the Premises
which is declared by any governmental authority having jurisdiction to be a
violation of law or the certificate of occupancy. Tenant, at Tenant's own
cost and expense, shall comply with all laws, ordinances, regulations,
rules and/or any directions of any governmental agencies or authorities
having jurisdiction which shall, by reason of the nature of Tenant's use or
occupancy of Premises, impose any duty upon Tenant or Landlord with respect
to the Premises or its use or occupation. A judgment of any court of
competent jurisdiction or the admission by Tenant in any action or
proceeding against Tenant that Tenant has violated any such laws,
ordinances, regulations, rules and/or directions in the use of the Premises
shall be deemed to be a conclusive determination of that fact as between
Landlord and Tenant. Tenant shall not do or permit to be done anything
which will invalidate or increase the cost of any fire, extended coverage
or other insurance policy covering the Building or Project and/or property
located herein, and shall comply with all rules, orders, regulations,
requirements and recommendations of the Insurance Services Offices or any
other organization performing a similar function. Tenant shall promptly
upon demand reimburse Landlord for any additional premium charged for such
policy by reason of Tenant's failure to comply with the provisions of this
Article. Tenant shall not do or permit anything to be done in or about the
Premises which will in any way obstruct or interfere with the rights of
257
other tenants or occupants of the Building or Project or injure or annoy
them, or use or allow the Premises to be used for any improper, immoral or
objectionable purpose, nor shall Tenant cause, maintain or permit any
nuisance in, on or about the Premises. Tenant shall not commit or suffer
to be committed any waste in or upon the Premises.
9. Services and Utilities.
Provided that Tenant is not in default hereunder, Landlord agrees to
furnish the Premises during generally recognized business days, and during
hours determined by Landlord in its sole discretion, and subject to the
Rules and Regulations of the Building or Project, electricity for normal
desk top office equipment and normal copying equipment, and heating,
ventilation and air conditioning ("HVAC") as required in Landlord's
judgment for the comfortable use and occupancy of the Premises. If Tenant
desires HVAC at any other time, Landlord shall use reasonable efforts to
furnish such service upon reasonable notice from Tenant and Tenant shall
pay Landlord's charges therefor on demand. Landlord shall not be in
default hereunder or be liable for any damages directly or indirectly
resulting from, nor shall the Rent be abated by reason of (i) the
installation, use or interruption of use of any equipment in connection
with the furnishing of any of the foregoing services, (ii) failure to
furnish or delay in furnishing any such services where such failure or
delay is caused by accident or any condition or event beyond the reasonable
control of Landlord, or by the making or necessary repairs or improvements
to the Premises, Building or Project, or (iii) the limitation, curtailment
or rationing or, or restrictions on, use of water, electricity, gas or any
other form of energy serving the Premises, Building or Project. Landlord
shall not be liable under any circumstances for a loss of or injury to
property or heat generating machines or equipment in the Premises which
affect the temperature otherwise maintained by the HVAC system. Landlord
reserves the right to install supplementary air conditioning units in the
Premises and the costs thereof, including the cost of installation,
operation and maintenance thereof, shall be paid by Tenant to Landlord upon
demand by Landlord.
Tenant shall not, without the written consent of Landlord, use any
apparatus or device in the Premises, including without limitation
electronic data processing machines, punch card machines or machines using
in excess of 120 volts, which consumes more electricity than is usually
furnished or supplied for the use of premises as general office space, as
determined by Landlord. Tenant shall not connect any apparatus with
electric current except through existing electrical outlets in the
Premises. Tenant shall not consume water or electric current in excess of
that usually furnished or supplied for the use of premises as general
office space (as determined by Landlord), without first procuring the
writing consent of Landlord, which Landlord may refuse, and in the event of
consent, Landlord may have installed a water meter or electrical current
meter in the Premises to measure the amount of water or electric current
consumed. The cost of any such meter and of its installation, maintenance
and repair shall be paid for by the Tenant and Tenant agrees to pay
Landlord promptly upon the local public utility plus any additional expense
incurred in keeping account of the water and electric current so consumed.
If a separate meter is not installed, the excess cost for such water and
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electric current shall be established by an estimate made by a utility
company or electrical engineer hired by Landlord at Tenant's expense.
Nothing contained in this Article shall restrict Landlord's right to
require at any time separate metering utilities furnished to the Premises.
In the event utilities are separately metered, Tenant shall pay promptly
upon demand for all utilities consumed at utility rates charged by the
local public utility plus any additional expense incurred by Landlord in
keeping account of the utilities so consumed. Tenant shall be responsible
for the maintenance and repair of any such meters at its sole cost.
Landlord shall furnish elevator service, lighting replacement for building
standard lights, restroom supplies, window washing and janitor services in
a manner that such services are customarily furnished to comparable office
buildings in the area.
10. Condition of the Premises
Tenant's taking possession of the Premises shall be deemed conclusive
evidence that as of the date taking possession the Premises are in good
order and satisfactory condition, except for such matters as to which
Tenant gave Landlord notice on or before ninety (90) days from the
Commencement Date. No promise of Landlord to alter, remodel, repair or
improve the Premises, the Building or the Project and no representation,
express or implied, respecting any matter or thing relating to the
Premises, Building, Project or this Lease (including, without limitation,
the condition of the Premises, the Building or the Project) have been made
to Tenant by Landlord or its Broker or Sales Agent, other than as may be
contained herein or in a separate exhibit or addendum signed by Landlord
and Tenant.
11. Construction, Repairs and Maintenance.
a. Landlords Obligations. Landlord shall perform Landlord's Work to the
Premises as described in Exhibit "C". Landlord shall maintain in good
order, condition and repair the Building and all other portions of the
Premises not the obligation of Tenant or any other tenant in the Building.
b. Tenant's Obligations.
(1) Tenant shall perform Tenant's Work to the Premises as described in
Exhibit "C".
(2) Tenant at Tenant's sole expense shall, except for services furnished
by Landlord pursuant to Article 9 hereof, maintain the Premises in good
order, condition and repair, including the interior surfaces of the
ceilings, walls and floors, all doors, all interior windows, all plumbing,
pipes and fixtures, electrical wiring, switches and fixtures, Building
Standard furnishings and special items and equipment installed by or at the
expense of Tenant.
(3) Tenant shall be responsible for all repairs and alterations in and to
the Premises, Building and Project and the facilities and systems thereof,
the need for which arises out of (i) Tenant's use or occupancy of the
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Premises, (ii) the installation, removal, use or operation of Tenant's
Property (as defined in Article 13) in the Premises, (iii) the moving of
Tenant's Property into or out of the Building, or (iv) the act, omission,
misuse or negligence of Tenant, its agent contractors, employees or
invitees.
(4) If Tenant fails to maintain the Premises in good order, condition and
repair, Landlord shall give Tenant notice to do such acts as are reasonably
required to so maintain the Premises. If Tenant fails to promptly commence
such work and diligently prosecute it to completion, then Landlord shall
have the right to so such acts and expend such funds at the expense of
Tenant as are reasonably required to perform such work. Any amount so
expended by Landlord shall be paid by Tenant promptly after demand with
interest at the prime commercial rate then being charged by Bank of America
NT&SA plus two percent (2%) per annum, from the date of such work, but not
to exceed the maximum rate then allowed by law. Landlord shall have not
liability to Tenant for any damage, inconvenience, or interference with the
use of the Premises by Tenant as a result of performing any such work.
c. Compliance with Law. Landlord and Tenant shall each do all acts
required to comply with all applicable laws, ordinances, and rules of any
public authority relating to their respective maintenance obligations as
set forth herein.
d. Waiver by Tenant. Tenant expressly waives the benefits of any statute
now or hereafter in effect which would otherwise afford the Tenant the
right to make repairs at Landlord's expense or to terminate this Lease
because of Landlord's failure to keep the Premises in good order, condition
and repair.
e. Load and Equipment Limits. Tenant shall not place a load upon any
floor of the Premises which exceeds the load per square foot which such
floor was designed to carry, as determined by Landlord or Landlord's
structural engineer. The cost of any such determination made by Landlord's
structural engineer shall be paid for by Tenant upon demand. Tenant shall
not install business machines or mechanical equipment which cause noise or
vibration to such a degree as to be objectionable to Landlord or other
Building tenants.
f. Except as otherwise expressly provided in this Lease, Landlord shall
have no liability to Tenant nor shall Tenant's obligations under this Lease
be reduced or abated in any manner whatsoever by reason of 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 by any other tenant's lease or required by law to make in or
to any portion of the Project, Building or the Premises. Landlord shall
nevertheless use reasonable efforts to minimize any interference with
Tenant's business in the Premises.
g. Tenant shall give Landlord prompt notice of any damage to or defective
condition in any part or appurtenance of the Building's mechanical,
electrical, plumbing, HVAC or other systems serving, located in, or passing
through the Premises.
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h. Upon the expiration or earlier termination of this Lease, Tenant shall
return the Premises to Landlord clean and in the same condition as on the
date Tenant took possession, except for normal wear and tear. Any damage
to the Premises, including any structural damage, resulting from Tenant's
use or from the removal of Tenant's fixtures, furnishings and equipment
pursuant to Section 13b shall be repaired by Tenant at Tenant's expense.
12. Alterations and Additions
a. Tenant shall not make any additions, alterations or improvements to the
Premises without obtaining the prior written consent of Landlord.
Landlord's consent may be conditioned on Tenant's removing any such
additions, alterations or improvements upon the expiration of the Term and
restoring the Premises to the same condition as on the date Tenant took
possession. All work with respect to any addition, alteration or
improvement shall be done in a good and workmanlike manner by properly
qualified and licensed personnel approved by Landlord, and such work shall
be diligently prosecuted to completion.
b. Tenant shall pay the costs of any work done on the Premises pursuant to
Section 12a, and shall keep the Premises, Building and Project free and
clear of liens of any kind. Tenant shall indemnify, defend against and
keep Landlord free and harmless from all liability, loss, damage, costs,
attorney's fees and any other expense incurred on account of claims by any
person performing work or furnishing materials or supplies for Tenant or
any person claiming under Tenant.
Tenant shall keep Tenant's leasehold interest, and any additions or
improvements which are or become the property of Landlord under this Lease,
free and clear of all attachment or judgment liens. Before the actual
commencement of any work for which a claim or lien may be filed, Tenant
shall give Landlord notice of the intended commencement date a sufficient
time before that date to enable Landlord to post notices of non-
responsibility or any other notices which Landlord deems necessary for the
proper protection of Landlord's interest in the Premises, Building or the
Project, and Landlord shall have the right to enter the Premises and post
such notices at any reasonable time.
c. Landlord may require, at Landlord's sole option, that Tenant provide to
Landlord, at Tenant's expense, a lien and completion bond in an amount
equal to at lease one and one-half (1 1/2) times the total estimated cost
of any additions, alterations or improvements to be made in or to the
Premises, to protect Landlord against any liability for mechanic's and
materialmen's liens and to insure timely completion of the work. Nothing
contained in this Section 12c shall relieve Tenant of its obligation under
Section 12b to keep the Premises, Building and Project free of all liens.
d. Unless their removal is required by Landlord as provided in Section
12a, all additions, alterations and improvements made to the Premises shall
become the property of Landlord and be surrendered with the Premises upon
the expiration of the Term; provided, however, Tenant's equipment,
machinery and trade fixtures which can be removed without damage to the
Premises shall remain the property of the Tenant and may be removed,
subject to the provisions of Section 13b.
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13. Leasehold Improvements; Tenants Property.
a. All fixtures, equipment, improvements and appurtenances attached to or
built into the Premises at the commencement of or during the Term, whether
or not by or at the expense of Tenant ("Leasehold Improvements"), shall be
and remain a part of the Premises, shall be the property of Landlord and
shall not be removed by Tenant, except as expressly provided in Section
13b.
b. All movable partitions, business and trade fixtures, machinery and
equipment, communications equipment and office equipment located in the
Premises and acquired by or for the account of Tenant, without expense to
Landlord, which can be removed without structural damage to the Building,
and all furniture, furnishings and other articles of movable personal
property owned by Tenant and located in the Premises (collectively
"Tenant's Property") shall be and shall remain the property of Tenant and
may be removed by Tenant at any time during the Term; provided that if any
of Tenant's Property is removed, Tenant shall promptly repair any damage to
the Premises or to the Building resulting from such removal.
14. -deleted-
15. Certain Rights Reserved by Landlord.
Landlord reserves the following rights, exercisable without liability to
Tenant for (a) damage or injury to property, person or business, (b)
causing an actual or constructive eviction from the Premises, or (c)
disturbing Tenant's use or possession of the Premises;
a. - deleted -
b. To install and maintain all signs on the exterior and interior of the
Building and Project;
c. - deleted -
d. At any time during the Term, and on reasonable prior notice to Tenant,
to inspect the Premises, and to show the Premises to any prospective
purchaser or mortgagee of the Project, or to any assignee of any mortgage
on the Project, or to others having an interest in the Project or Landlord,
and during the last six months of the Term, to show the Premises to
prospective tenants thereof; and;
e. To enter the Premises for the purpose of making inspections, repairs,
alterations, additions or improvements to the Premises or the Building
(including, without limitation, checking, calibrating, adjusting or
balancing controls and other parts of the HVAC system), and to take all
steps as may be necessary or desirable for the safety, protection,
maintenance or preservation of the Premises or the Building or Landlord's
interest therein, or as may be necessary or desirable for the operation or
improvement of the Building or in order to comply with laws, orders or
requirements of governmental or other authority. Landlord agrees to use
its best efforts (except in an emergency) to minimize interference with
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Tenant's business in the Premises in the course of any such entry.
16. - deleted -
17. Holding Over.
If after expiration of the Term, Tenant remains in possession of the
Premises with Landlord's permission (express or implied), Tenant shall
become a tenant from month to month only, upon all the provisions of this
lease (except as to term and Base Rent), but the "Monthly Installments of
Base Rent" payable by Tenant shall be increase one hundred twenty five
percent (125%) o the Monthly Installments of Base Rent Payable by Tenant at
the expiration of the Term. Such monthly rent shall be payable in advance
on or before the first day of each month. If either party desires to
terminate such month to month tenancy, it shall give the other party not
less than thirty (30) days advance written notice of the date of
termination.
18. Surrender of Premises.
a. Tenant shall peaceably surrender the Premises to Landlord on the
Expiration Date, in broom-clean condition and in as good condition as when
Tenant took possession, except for (i) reasonable wear and tear, (ii) loss
by fire or other casualty, and (iii) loss by condemnation. Tenant shall,
on Landlord's request, remove Tenant's Property on or before the Expiration
Date and promptly repair all damage to the Premises or Building caused by
such removal.
b. If Tenant abandons or surrenders the Premises, or is dispossessed by
process of law or otherwise, any of Tenant's Property left on the Premises
shall be deemed to be abandoned, and, at Landlord's option, title shall
pass to Landlord under this Lease as by a bill of sale. If Landlord elects
to remove all or any part of such Tenant's Property, the cost of removal,
including repairing any damage to the Premises or Building caused by such
removal, shall be paid by Tenant. On the Expiration Date Tenant shall
surrender all keys to the Premises.
19. Destruction or Damage.
a. If the Premises or the portion of the Building necessary for Tenant's
occupancy is damaged by fire, earthquake, act of God, the elements of other
casualty, Landlord shall, subject to the provisions of this Article,
promptly repair the damage, if such repairs can, in Landlord's opinion, be
completed within (90) ninety days. If Landlord determines that repairs can
be completed within ninety (90) days, this Lease shall remain in full force
and effect, except that is such damage is not the result of negligence or
willful misconduct of Tenant or Tenant's agents, employees, contractors,
licensees or invitees, the Base Rent shall be abated to the extend Tenant's
use of the Premises in impaired, commencing with the date of damage and
continuing until completion of the repairs required of Landlord under 19d.
b. If in Landlord's opinion, such repairs to the Premises or portion of
the Building necessary for Tenant's occupancy cannot be completed within
ninety(90) days, Landlord may elect, upon notice to Tenant given within
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thirty (30) days after the date of such fire or other casualty, to repair
such damage, in which event this Lease shall continue in full force and
effect, but the Base Rent shall be partially abated as provided in Section
19a. If Landlord does not so elect to make such repairs, this Lease shall
terminate as of the date of such fire or other casualty.
c. If any other portion of the Building or Project is totally destroyed or
damaged to the extent that in Landlord's opinion repair thereof cannot be
completed within ninety (90) days, Landlord may elect upon notice to Tenant
given within thirty (30) days after the date of such fire or other
casualty, to repair such damage, in which event this Lease shall continue
in full force and effect, but the Base Rent shall be partially abated as
provided in Section 19a. If Landlord does not elect to make such repairs,
the Lease shall terminate as of the date of such fire or other casualty.
d. If the Premises are to be repaired under this Article, Landlord shall
repair at its cost any injury or damage to the Building, and Building
Standard Work in the Premises. Tenant shall bear responsible at its sole
cost and expense for the repair, restoration and replacement of any other
Leasehold Improvements and Tenant's Property. Landlord shall not be liable
for any loss of business, inconvenience or annoyance arising from any
repair or restoration of any portion of the Premises, Building or Project
as a result of any damage from fire or other casualty.
e. This Lease shall be considered an express agreement governing any case
of damage to or destruction of the Premises, Building or Project by fire or
other casualty, and any present or future laws which proports to govern the
rights of Landlord and Tenant in such circumstances in the absence of
express agreement, shall have no application.
20. Eminent Domain
a. If the whole of the Building or Premises is lawfully taken by
condemnation or in any other manner for any public or quasi-public purpose,
this Lease shall terminate as of the date of such taking, and Rent shall be
prorated to such date. If less than the whole of the Building or Premises
is so taken, this Lease shall be unaffected by such taking, provided that
(i) Tenant shall have the right to terminate this Lease by notice to
Landlord given within ninety (90) days after the date of such taking is
twenty percent (20%) or more of the Premises is taken and the remaining
area of the Premises is not reasonably sufficient for Tenant to continue
operation of its business, and (ii) Landlord shall have the right to
terminate this Lease by notice to Tenant given within ninety (90) days
after the date of such taking. If either Landlord or Tenant so elects to
terminate this Lease, the Lease shall terminate on the thirtieth (30th) day
after either such notice. The Rent shall be prorated to the date of
termination. If this Lease continues in force upon such partial taking,
the Base Rent and Tenant's Proportionate Share shall be equitably adjusted
according to the remaining Rentable Area of the Premises and Project.
b. In the event of any taking, partial or whole, all of the proceeds of
any award, judgment or settlement payable by the condemning authority shall
be the exclusive property of Landlord, and Tenant hereby assigns to
Landlord all of its right, title and interest in any award, judgment or
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settlement from the condemning authority. Tenant however, shall have the
right, to the extent that Landlord's award is not reduced or prejudiced, to
claim from the condemning authority (but not from Landlord) such
compensation as may be recoverable by Tenant in its own right for
relocation expenses and damage to Tenant's personal property.
c. In the event of a partial taking of the Premises which does not result
in a termination of this Lease, Landlord shall restore the remaining
portion of the Premises as nearly as practicable to its condition prior to
the condemnation or taking, but only to the extent of Building Standard
Work. Tenant shall be responsible at its sole expense for the repair,
restoration and placement of any other Leasehold Improvements and Tenant's
Property.
21. Indemnification
a. Tenant shall indemnify and hold Landlord harmless against and from
liability and claims of any kind for loss or damage to property of Tenant
or any other person, or for any injury to or death of any person, arising
out of (1) Tenant's use and occupancy of the Premises, or any work,
activity or other things allowed or suffered by Tenant to be done in, on or
about the Premises; (2) any breach or default by Tenant of any of Tenant's
obligations under this Lease; or (3) any negligent or otherwise tortious
act or omission of Tenant, its agents, employees, invitees or contractors.
Tenant shall at Tenant's expense and by counsel satisfactory to Landlord,
defend Landlord in any action or proceeding arising from any such claim and
shall indemnify Landlord against all costs, attorney's fees, expert witness
frees and any other expenses incurred in such action or proceeding. As a
material part of the consideration for Landlord's execution of this Lease,
Tenant hereby assumes all risk of damage or injury to any person or
property in, on or about the Premises from any cause.
b. Landlord shall not be liable for injury or damage which may be sustained
by the person or property of Tenant, its employees; invitees or customers,
or any other person in or about the Premises, caused by or resulting from
fire, steam, electricity, gas, water or rain which may leak of flow from or
into any part of the Premises, or from the breakage, leakage, obstruction r
other defects of pipes, sprinklers, wires, appliances, plumbing, air
conditioning or lighting fixtures, whether such damage or injury results
from conditions arising upon the Premises or upon other portions of the
Building or Project or from other sources. Landlord shall not be liable
for any damages arising upon the
premises or upon other portions of the building or project or from
other sources. Landlord shall not be liable for any damages
arising from any act or omission of any other tenant of the
building or project.
22. TENANTS INSURANCE.
a. All insurance required to be carried by tenant hereunder shall
be issued by responsible insurance companies acceptable to landlord and
landlord's lender and qualified to do business in the state. Each policy
shall name landlord, and at landlord's request any mortgagee of landlord,
as an additional insured, as their
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respective interests may appear. Each policy shall contain (i) a cross-
liability endorsement, (ii) a provision that such policy and the coverage
evidenced thereby shall be primary and non-contributing with respect to any
policies carried by landlord and that any coverage carried by landlord
shall be excess insurance, and (iii) a waiver by the insurer of any right
of subrogation against landlord, its agents, employees and representatives,
which arises or might arise by reason of any payment under such policy or
by reason of any act or omission of landlord, its agents, employees or
representatives. A copy of each paid up policy shall be cancelable except
after twenty (20) days written notice to landlord and landlord's lender.
Tenant shall furnish landlord with renewals or "binders" of any such policy
at least ten (10) days prior to the expiration thereof. Tenant agrees that
if Tenant does not take out and maintain such insurance, landlord may (but
shall not be required to) procure said insurance on
Tenant's behalf and charge the tenant the premiums together with a twenty-
five percent (25%) handling charge, payable upon demand. Tenant shall have
the right to provide such insurance coverage pursuant to blanket policies
obtained by the Tenant, provided such blanket policies expressly afford
coverage to the premises, landlord, landlord's mortgagee and tenant as
required by this lease.
b. Beginning on the date tenant is given access to the Premises for any
purpose and continuing until expiration of the Term, tenant shall procure,
pay for and maintain in effect policies of casualty insurance covering (i)
all leasehold improvements (including any alterations, additions or
improvements as may be made by tenant pursuant to the provisions of Article
12 hereof), and (ii) trade fixtures, merchandise and other personal
property from time to time in, on or about the Premises, in an amount not
less than one hundred percent (100%) of their actual replacement cost from
time to time, providing protection against any peril included within the
classification "Fire and Extended Coverage" together with insurance against
sprinkler damage, vandalism and malicious mischief. The proceeds of such
insurance shall be used for the repair or replacement of the property so
insured. Upon termination of this lease following a casualty as set forth
herein, the proceeds under (i) shall be paid to landlord, and the proceeds
under (ii) above shall be paid to tenant.
c. Beginning on the date Tenant is given access to the Premises for any
purpose and continuing until expiration of the term, tenant shall procure,
pay for and maintain in effect workers' compensation insurance as required
by law and comprehensive public liability and property damage insurance
with respect to the construction of improvements on the premises, the use,
operation or condition of the Premises and the operations of Tenant in, on
or about the Premises, providing personal injury and broad form property
damage coverage for not less than One Million Dollars ($1,000,000.00)
combined single limit for bodily injury, death and property damage
liability.
d. Not less than every three (3) years during the Term, landlord and tenant
shall mutually agree to increases in all of tenant's insurance policy
limits for all insurance to be carried by Tenant as set forth in the
Article. In the event landlord and tenant cannot mutually agree upon the
amounts of said increases, then tenant agrees that all insurance policy
limits as set forth in this Article shall be adjusted for increases in the
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cost of living in the same manner as is set forth in Section 5.2 hereof for
the adjustment of the Base Rent.
23. WAIVER OF SUBROGATION.
Landlord and Tenant each hereby waive all rights of recovery against the
other and against the officers, employees, agents and representatives of
the other, on account of loss by or damage to the waiving party of its
property or the property of others under its control, to the extent that
such loss or damage is insured against under any fire and extended coverage
insurance policy which either may have in force at the time of the loss or
damage. Tenant shall, upon obtaining the policies of insurance required
under this lease, give notice to its insurance carrier or carriers that the
foregoing mutual waiver of subrogation is contained in this lease.
24. SUBORDINATION AND ATTORNMENT.
Upon written request of landlord, or any first mortgagee or first deed of
trust beneficiary of landlord, or ground lessor of Landlord, Tenant shall,
in writing, subordinate its rights under this lease to the lien of any
first mortgage or first deed of trust, or to the interest of any lease in
which landlord is lessee, and to all advances made or hereafter to be made
thereunder. However, before signing any subordination agreement, tenant
shall have the right to obtain from any lender or lessor or landlord
requesting such subordination, an agreement in writing providing that, as
long as Tenant is not in default hereunder, this lease shall remain in
effect for the full term. The holder of any security interest may, upon
written notice to tenant, elect to have this lease prior to its security
interest regardless of the time of the granting or recording of such
security interest.
In the event of any foreclosure sale, transfer in lieu of foreclosure or
termination of the lease in which landlord is lessee, tenant shall attorn
to the purchaser, transferee or lessor as the case may be, and recognize
that party as landlord under this lease, provided such party acquires and
accepts the Premises subject to this lease.
25. TENANT ESTOPPEL CERTIFICATES.
Within ten (10) days after written request from landlord, Tenant shall
execute and deliver to landlord or landlord's designee, a written statement
certifying (a) that this lease is unmodified and in full force and effect,
or is in full force and effect as modified and stating the modifications;
(b) the amount of Base Rent and the date to which Base Rent and additional
rent have been paid in advance; (c) the amount of any security deposited
with landlord; and (d) that landlord is not in default hereunder or, if
landlord is claimed to be in default, stating the nature of any claimed
default. Any such statement may be relied upon by a purchaser, assignee or
lender. Tenant's failure to execute and deliver such statement within the
time required shall at landlord's election be a default under this lease
and shall also be conclusive upon tenant that: (1) this lease is in full
force and effect and has not been modified except as represented by
landlord; (2) there are no uncured defaults in landlord's performance and
that Tenant has no right of offset, counter claim or deduction against
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rent; and (3) not more than one month's Rent has been paid in advance.
26. DELETED.
27. DEFAULT.
27.1 Tenant's Default. The occurrence of any one or more of the following
events shall constitute a default and breach of this lease by Tenant:
a. If Tenant abandons or vacated the Premises; or
b. If Tenant fails to pay any Rent or any other charges
required to be paid by Tenant under this lease and such
failure continues for five (5) days after such payment is
due and payable; or
c.If Tenant fails to promptly and fully perform any other
covenant, condition or agreement contained in this lease
and such failure continues for thirty (30) days after
written notice thereof from landlord to Tenant; or
d. If a writ of attachment or execution is levied on this
lease or on any of tenant's property; or
e. If Tenant makes a general assignment for the benefit of
creditors, or provides for an arrangement, composition,
extension or adjustment with its creditors; or
f. If Tenant files a voluntary petition for relief or if a
petition against tenant in a proceeding under the federal
bankruptcy laws or other insolvency laws is filed and not
withdrawn or dismissed within forty-five (45) days
thereafter, of if under the provisions of any law providing
for reorganization or winding up of corporations, any court
of competent jurisdiction assumes jurisdiction, custody or
control of Tenant or any substantial part of its property
and such jurisdiction, custody or control remains in force
unrelinquished, unstayed or unterminated for a period of
forty-five (45) days; or
g. If in any proceeding or action in which tenant is a
party, a trustee, receiver, agent or custodian is appointed
to take charge of the Premises or Tenant's Property (or has
the authority to do so) for the purpose of enforcing a lien
against the Premises or Tenant's Property; or
h. If Tenant is a partnership or consists of more than one
(1) person or entity, if any partner of the partnership or
other person or entity is involved in any of the acts or
events described in subparagraphs d through g above.
27.2 Remedies. In the event of Tenant's default hereunder, then in addition
to any other rights or remedies landlord may have under any law, landlord
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shall have the right, at landlord's option, without further notice or
demand of any kind to do the following;
a. Terminate this lease and Tenant's right to possession of
the Premises and reenter the Premises and take possession
thereof, and Tenant shall have no further claim to the
Premises or under this lease: or
b. Continue this lease in effect, reenter and occupy the
Premises for the account of Tenant, and collect any unpaid
rent or other charges which have or thereafter become due and
payable; or
c. Reenter the Premises under the provisions of subparagraph
b, and thereafter elect to terminate this lease and tenant's
right to possession of the Premises.
If landlord reenters the Premises under the provisions of subparagraphs b
or c above, landlord shall not be deemed to have terminated this lease or
the obligation of Tenant to pay any Rent or other charges thereafter
accruing, unless landlord notifies Tenant in writing of landlord's election
to terminate this lease. In the event of any reentry or retaking of
possession by landlord, landlord shall have the right, but not the
obligation, to remove all or any part of Tenant's property in the Premises
and to place such property in storage at a public warehouse at the expense
and risk of Tenant. If landlord elects to relet the Premises for any
indebtedness other than Rent due hereunder from Tenant to landlord; second,
to the payment of any costs of such reletting; third, to the payment of the
cost of any alterations or repairs to the Premises; fourth to the payment
of Rent due. If that portion of rent received from the reletting which is
applied against the Rent due hereunder is less than the amount of the Rent
due, Tenant shall pay the deficiency to landlord promptly upon demand by
landlord. Such deficiency shall be calculated and paid monthly. Tenant
shall also pay to landlord, as soon as determined, any costs and expenses
incurred by landlord in from the reletting.
Should landlord elect to terminate this lease under the provisions of
subparagraph a or c above, landlord may recover as damages from tenant the
following:
1. Past Rent. The worth at the time of the award of any
unpaid Rent which had been earned at the time of
termination; plus
2. Rent prior to Award. The worth at the time of the award
of the amount by which the unpaid Rent which would have been
earned after termination until the time of award exceeds the
amount of such rental loss that Tenant proves could
have been reasonably avoided; plus
3. Rent After Award. The worth at the time of the award of
the amount by which the unpaid Rent for the balance of the
term after the time of award exceeds the amount of the
rental loss that Tenant proves could be reasonably
269
avoided; plus
4. Proximately Caused Damages. Any other amount necessary to
compensate landlord for all detriment proximately caused
by Tenant's failure to perform its obligations under this
lease or by which in the ordinary course of things would
be likely to result therefrom, including but not limited to,
any costs or expenses (including attorneys' fees),
incurred by landlord in (a) retaking possession of the
Premises, (b) maintaining the Premises after Tenant's
default, (c) preparing the Premises for reletting to a
new tenant, including any repairs or alterations, and (d)
reletting the Premises, including broker's commissions.
"The worth at the time of the award" as used in subparagraphs 1 and 2
above, is to be computed by allowing interest at the rate of ten percent
(10%) per annum. "The worth at the time of the award" as used in
subparagraph 3 above, is to be computed by discounting the amount at the
discount rate of the Federal Reserve Bank situated nearest to the Premises
at the time of the award plus one percent (1%).
The waiver by landlord of any breach of any term, covenant or condition of
this lease shall not be deemed a waiver of such term, covenant or condition
or of any subsequent breach of the same or any other term, covenant or
condition. Acceptance of Rent by landlord subsequent to any breach hereof
shall not be deemed a waiver of any preceding breach other than the failure
to pay the particular Rent so accepted, regardless of landlord's knowledge
of any breach at the time of such acceptance of Rent. Landlord shall not be
deemed to have waived any term, covenant or condition unless landlord gives
Tenant written notice of such waiver.
27.3 Landlord's Default. If landlord fails to perform any covenant,
condition or agreement contained in this lease within thirty (30) days
after receipt of written notice from Tenant specifying such default, or if
such default cannot reasonably be cured within thirty (30) days, if
landlord fails to commence to cure within that thirty (30) day period, then
landlord shall be liable to Tenant for any damages sustained by Tenant as a
result of landlord's breach; provided, however, it is expressly understood
and agreed that if Tenant obtains a money judgment against landlord
resulting from any default or other claim arising under this lease that
judgment shall be satisfied only out of the rents, issues, profits, and
other income actually received on account of landlord's right, title and
interest in the Premises, building or Project, and no other real, personal
or mixed property of landlord (or of any of the partners which comprise
landlord, if any) wherever situated, shall be subject to levy to satisfy
such judgment. If, after notice to landlord of default, landlord (or any
first mortgagee or first deed of trust beneficiary of landlord) fails to
cure the default as provided herein, then tenant shall have the right to
cure that default at landlord's expense. Tenant shall not have the right to
terminate this lease or to withhold, reduce or offset any amount against
any payments of Rent or any other charges due and payable under this lease
except as otherwise specifically provided herein.
28. BROKERAGE FEES.
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Tenant warrants and represents that it has not dealt with any real estate
broker or agent in connection with this lease or its negotiation except
those noted in Section 2, c. Tenant shall indemnify and hold landlord
harmless from any cost, expense or liability (including costs of suit and
reasonable attorneys' fees) for any compensation, commission or fees
claimed by any other real estate broker or agent in connection with this
lease or its negotiation by reason of any act of Tenant.
29. NOTICES.
all notices approvals and demands permitted or required to be given under
this lease shall be in writing and deemed duly served or given if
personally delivered or sent by certified or
registered U.S. mail, postage prepaid, and addressed as follows:
(a) if to landlord, to landlord's mailing address and to the building
manager, and (b) if to tenant, to tenant's mailing address; provided,
however, notices to Tenant shall be deemed duly served or given if
delivered or mailed to Tenant at the Premises. Landlord and Tenant may from
time to time by notice to the other designate another place for receipt of
future notices.
30. GOVERNMENT ENERGY OR UTILITY CONTROLS.
In the event of imposition of federal, state or local government controls
rules, regulations, or restrictions on the use or consumption of energy or
other utilities during the term, both landlord and tenant shall be bound
thereby. In the event of a difference in interpretation by landlord and
tenant of any such controls, the interpretation of landlord shall prevail,
and landlord shall have the right to enforce compliance therewith,
including the right of entry into the Premises to effect compliance.
31. DELETED.
32. QUIET ENJOYMENT.
Tenant, upon paying the Rent and performing all of its obligations under
this lease, shall peaceably and quietly enjoy the Premises, subject to the
terms of this lease and to any mortgage, lease, or other agreement to which
this lease may be subordinate.
33. OBSERVANCE OF LAW.
Tenant shall not use the Premises or permit anything to be done in or about
the Premises which will in any way conflict with any law, statute,
ordinance and governmental rule or regulation now in force or which may
hereafter be enacted or promulgated. Tenant shall, at its sole cost and
expense, promptly comply with all laws, statutes, ordinances and
governmental rules, regulations or requirements now in force or which may
hereafter be in force, and with the requirements of any board of fire
insurance underwriters or other similar bodies now or hereafter
constituted, relating to, or affecting the condition, use or occupancy of
the Premises, excluding structural changes not related to or affected by
Tenant's improvements or acts. The judgment of any court of competent
271
jurisdiction or the admission of Tenant in any action against tenant,
whether landlord is a party thereto or not, that tenant has violated any
law, ordinance or governmental rule, regulation or requirement, shall be
conclusive of that fact as between landlord and Tenant.
34. FORCE MAJEURE.
Any prevention, delay or stoppage of work to be performed by Landlord or
Tenant which is due to strikes, labor disputes, inability to obtain labor,
materials, equipment or reasonable substitutes therefor, acts of God,
governmental restrictions or regulations or controls, judicial orders,
enemy or hostile government actions, civil commotion, fire or other
casualty, or other causes beyond the reasonable control or the party
obligated to perform hereunder, shall excuse performance of the work by
that party for a period equal to the duration of that prevention, delay or
stoppage.
35. Curing Tenant's Defaults
If Tenant defaults in the performance of any of its obligations under this
Lease, Landlord may (but shall not be obligated to) without waiving such
default, perform the same for the account at the expense of the Tenant.
Tenant shall pay Landlord all costs of such performance promptly upon
receipt of a bill therefor.
36. Sign Control
Tenant shall not affix, paint, erect or inscribe any sign, projection,
awning, signal or advertisement of any kind to any part of the Premises,
Building or Project, including without limitation, the inside of windows or
doors, without the written consent of Landlord. Landlord shall have the
right to remove any signs or other matter, installed without Landlord's
permission, without being liable to Tenant by reason of such removal, and
to charge the cost or removal to Tenant as additional rent hereunder,
payable within ten (10) days of written demand by Landlord.
37. Miscellaneous
a. Accord and Satisfaction; Allocation of Payments. No payment by Tenant
or receipt by Landlord of a lesser amount than the Rent provided in this
Lease shall be deemed to be other than on account of the earliest due Rent,
nor shall any endorsement or statement on any check or letter accompanying
without prejudice to Landlord's right to recover the balance of the Rent or
pursue any other remedy provided for in this Lease. In connection with the
foregoing, Landlord shall have the absolute right in its sole discretion to
apply any payment received from Tenant to any account or other payment of
Tenant then not current and due or delinquent.
b. Addenda. If any provision contained in an addendum to this Lease is
inconsistent with any other provision, herein, the provision contained in
the addendum shall control, unless otherwise provided in the addendum.
c. Attorney's Fees. If any action or proceeding is brought by either
party against the other pertaining to or arising out of this Lease, the
272
finally prevailing party shall be entitled to recover all costs and
expenses, including reasonable attorney's fees, incurred on account of such
action or proceeding.
d. Captions, Articles, and Section Numbers. The captions appearing within
the body of this Lease have been inserted as a matter of convenience and
for reference only and in no way define, limit or enlarge the scope or
meaning of this Lease. All references to Article and Section numbers refer
to Articles and Sections in this Lease.
e. Changes Requested by Lender. Neither Landlord or Tenant shall
reasonably withhold its consent to changes or amendments to this Lease
requested by the lender on Landlord's interest, so long as these changes do
not alter the basic business terms of this Lease or otherwise materially
diminish any rights or materially increase any obligations of the party
from whom consent to such charge or amendment is requested.
f. Choice of Law. This Lease shall be construed and enforced in accordance
with the laws of the State.
g. Consent - deleted
h. Corporate Authority. If Tenant is a corporation, each individual
signing this Lease on behalf of Tenant represents and warrants that he is
duly authorized to execute and deliver this Lease on behalf of the
corporation, and that this Lease is binding on Tenant in accordance with
its terms. Tenant shall, at Landlord's request, deliver a certified copy
of a resolution of its board of directors authorizing such execution.
i. Counterparts. This Lease may be executed in multiple counterparts, all
of which shall constitute one and the same Lease.
j. Execution of Lease; No Option. The submission of this Lease to Tenant
shall be for examination purposes only, and is not and shall not constitute
a reservation of or option for Tenanat to lease, or otherwise create any
interest of Tenant in the premises or any other premises within the
building or project. Execution of this Lease by Tenant and its return to
Landlord shall not be binding on Landlord notwithstanding any time
interval, until Landlord has in fact signed and delivered this Lease to
Tenant.
k. Furnishings of Financial Statements - deleted
l. Further Assurances. The parties agree to promptly sign al documents
reasonably requested to give effect to the provisions of this Lease.
m. Mortgagee Protection. Tenant agrees to send by certified or registered
mail to any first mortgagee or first deed of trust beneficiary of Landlord
whose address has been furnished to Tenant, a copy of any notice of default
served by Tenant on Landlord. If Landlord fails to cure such default
within the time provided for in this Lease, such mortgagee or beneficiary
shall have an additional thirty (30) days to cure such default; provided
that if such default cannot reasonably be cured within that thirty (30) day
period, then such mortgagee or beneficiary shall have such additional time
273
to cure the default as is reasonably necessary under the circumstances.
n. Prior Agreements; Amendments. This Lease contains all of the agreements
of the parties with respect to any matter covered or mentioned in this
Lease, and no prior agreement or understanding pertaining to any such
matter shall be effective for any purpose. No provisions of this Lease may
be amended or added to except by an agreement in writing signed by the
parties or their respective successors in interest.
o. Recording. Tenant shall not record this Lease without the prior written
consent of Landlord. Tenant upon the request of Landlord, shall execute
and acknowledge a ``
short form'' memorandum of this Lease for recording
purposes.
p. Severability. A final determination by a court of competent
jurisdiction that any provision, and any provision so determined to be
invalid shall, to the extent possible, be construed to accomplish its
intended effect.
q. Successors and Assigns. This Lease shall apply to and bind the heirs,
personal representatives, and permitted successors and assigns of the
parties.
r. Time of the Essence. Time is of the essence of this Lease.
s. Waiver. No delay or omission in the exercise of any right or remedy of
Landlord upon any default by Tenant shall impair such right or remedy or be
construed as a waiver of such default.
The receipt and acceptance by Landlord of delinquent Rent shall not
constitute a waiver of any other default; it shall constitute only a waiver
of timely payment of the particular Rent payment involved.
No act or conduct of Landlord, including, without limitation, the
acceptance of keys to the Premises by Tenant before the expiration of the
Term. Only a written notice from Landlord to Tenant shall constitute
acceptance of the surrender of the Premises and accomplish a termination of
the Lease.
Landlord's consent to or approval of any act by Tenant requiring Landlord's
consent or approval shall not be deemed to waive or render unnecessary
Landlord's consent to or approval of any subsequent act by Tenant.
Any waiver by Landlord of any default must be in writing and shall not be a
waiver of any other default concerning the same or any other provision of
the Lease.
The parties hereto have executed this Lease as of the dates set forth
below.
Date: March 1, 1993 Date: March 1, 1993
Landlord: RCI-Loring, L.P. Tenant: C.V.B. Financial Corporation a
California limited a California corporation
274
partnership
By: Riverside Commercial By: Robert J. Schurheck
Investors, Inc. a California Title: Chief Financial
corporation, General Partner Officer
By: Rufus C. Barkley, III By: /s/ Robert J. Schurheck
Robert J. Schurheck
Title: President Title: Chief Financial Officer
275
ADDENDUM AND MODIFICATION TO LEASE
BETWEEN RCI-LORING, L.P.,
a California Limited Partnership, and
CHINO VALLEY BANK
The following is a modification of the Lease Agreement between RCI-
Loring, L.P., and Chino Valley Bank concerning the premises located at the
first floor of 3695 Main Street, Riverside, California:
Paragraph 2.e. is amended to read:
Common areas: the building lobbies, common corridors and
hallways, restrooms, garage and parking areas, stairways,
elevators and other generally understood public or common areas.
Landlord shall have the right to reasonably regulate or restrict
the use of the Common Areas. In the event of a dispute concerning
such regulation, the parties hereto agree to submit the matter to
a non-judicial arbitration.
Paragraph 2.k is amended to delete the last line, which states: Landlord
reserves the right to separately charge Tenant's guests and visitors for
parking. The tenant is aware they will pay the prevailing City surface
parking lot rate for all ten (10) spaces it will be provided.
Paragraph 4., Delivery of Possession is amended to add the following
sentence:
In the event that Landlord fails to deliver possession of the premises
to tenant on or before December 1, 1993, tenant, at its option, may declare
material breach of the contract.
In the event the Tenant fails to deliver the Landlord with approved
tenant improvement working drawings for construction by June 15, 1993, the
Landlord, at its option, may declare material breach of this contract.
In the event Tenant submits approved tenant improvement working
drawings prior to June 15, 1993, then the number of days prior to that date
of June 15, 1993 shall advance the date by which the Landlord shall be
committed to deliver possession of the premises to tenant, with all other
conditions but remaining in effect.
276
Paragraph 5.3, Project Operating Costs, subparagraph b.
(1)(b) is amended to add the following:
(a) Notwithstanding any other provision of this paragraph of the
lease, the Tenant shall only be responsible for its proportionate
share of "Project Operating Costs" throughout its tenancy.
(b) Operating costs incurred by Landlord in maintaining and
operating the Building and Project, including without limitation
the following: costs of (1) utilities; (2) supplies; (3)
insurance for public liability and fire and extended coverage
insurance for the full replacement cost of the Building and
Project that is required by Landlord or its lenders for the
Project; (4) services of independent contractors; (5)
compensation of all persons who perform duties connected with the
operation of, maintenance, repair or overhaul of the Building or
Project, and equipment, improvements and facilities located
within the project, including without limitation engineers,
janitors, painters, floor waxes, window washers, security and
parking personnel and gardeners (but excluding persons performing
services not uniformly available to or performed for
substantially all Building or project tenants and excluding
repair, replacement or maintenance of the elevator), operation
and maintenance of any room for delivery and distribution of
mail, management of the Project, and any on site managers office.
If at any time during the Term, less than ninety-five (95%) of
the rental area of the Project is occupied, the "Operating Costs"
component of the Project Operating Costs shall be calculated as
if the Building was ninety percent (90%) occupied.
Paragraph 5.3, Project operating Costs, subparagraph (2)
(e) is amended as follows:
If any dispute arises as to the amount of any additional rent due
hereunder, Tenant shall have the right after reasonable notice and at
times to inspect Landlord's accounting records at Landlord's
accounting office and, if after such inspection Tenant still disputes
the amount of additional rent owed, a certification as to the proper
amount shall be made by Landlord's certified public accountant. In the
event of a dispute as to the propriety of charges, the parties agree
to resolve the dispute in a binding private arbitration. Tenant agrees
to pay the reasonable costs of such certification by the certified
public accountant unless it is determined that Landlord's original
statement overstated Project Operating Costs by more than five percent
(5%).
Paragraph 9., Services and Utilities, is amended as follows:
Provided that Tenant is not in default hereunder, Landlord agrees
to furnish to the Premises without limitation or charge, electricity
for normal banking operations and heating, ventilation and air
conditioning (HVAC) for the comfortable use and occupancy of the
Premises. Such service will be provided Monday through Thursday
between the hours of 7:00 a.m. and 6:00 p.m., 7:00 a.m. to 7:00 p.m.
277
on Fridays and on Saturdays from 9:00 a.m. to 1:00 p.m.
Tenant shall not, without the written consent of Landlord, use
any apparatus of device in the Premises using and excess of 120 volts
which consumes more electricity than is usually furnished or supplied
for the use of the premises as a bank. Tenant shall not consume water
or electric current in excess of that usually furnished or supplied
the use of Premises as a bank without first procuring the written
consent of Landlord.
Paragraph 11., Construction, Repairs and Maintenance, subparagraphs
b.(2,.b.(3) and b.(4) are amended as follows:
(2) Tenant's sole expense shall, except for services
furnished by Landlord pursuant to Article 9 hereof, maintain the
Premises in good order, condition and repair, including the interior
surfaces of the ceilings, walls and floors, all doors, all interior
windows, electrical wiring, switches and fixtures.
(3) Tenant shall be responsible for all repairs and
alterations in and to the occupied Premises, Building and Project and
the facilities and systems thereof, the need for which arises out of
(i) Tenant's use or occupancy of the Premises, (ii) the installation,
removal, use or operation of Tenant's Property on the Premises,, (iii)
the moving of Tenant's Property into or out of the Building, or (iv)
the act, omission, misuse or negligence of Tenant, its agents,
contractors, employees or invitees.
(4) If Tenant fails to maintain the Premises in good order, condition
or repair, Landlord shall give Tenant notice to do such acts as are
reasonably required to so maintain the Premises. If Tenant fails
promptly to commence such work and diligently prosecute it to
completion, then Landlord shall have the right to do such acts at a
reasonable cost and chargeable to Tenant.
Paragraph 11., Construction, Repairs and Maintenance, subparagraph f.
is amended as follows:
278
f. Except as otherwise provided in this Lease, Landlord
shall have no liability to Tenant nor shall Tenant's obligations under
this Lease be reduced or abated in any manner whatsoever by reason of
any inconvenience, annoyance interruption or injury to business
resulting reasonable repairs or changes which Landlord is required or
permitted by this Lease to make in or to any portion of the Project,
Building or the Premises. Landlord's undertaking shall be done in a
reasonable manner taking into consideration the nature and hours of
Tenant's business.
Paragraph 12., Alteration and Additions, is amended to add the
following paragraph:
(e) In the event that Tenant wishes to install automatic
teller machine service, Tenant may do so if the installation can
reasonably be accomplished. Upon termination of the lease, the Tenant
shall restore the area to its original condition.
Paragraph 13. , Leasehold Improvements; Tenant I s Property, is amended as
follows:
At the end of the lease term, Tenant may remove any and all
personal property and fixtures placed in or on the property by Tenant,
whether attached or not. Tenant will adequately repair any damage
caused by such removal.
Paragraph 16., Assignment Subletting is replaced with following:
The Tenant shall not sublease the subject space without
obtaining the prior written consent of the Landlord, which shall not
be unreasonably withheld.
Paragraph 19., Destruction of Damage, is amended as follows:
In the event of total destruction of the Premises, the Lease and
all obligations thereunder shall terminate. In the event of a partial
destruction, meaning damage that will reasonably require less than 180
days to repair, Landlord shall promptly commence to cure the damage
and, once commenced, shall proceed reasonably to cause the work to be
completed in a prompt manner. Rent during repairs will be abated.
Paragraph 21., Indemnification, is amended as follows:
Tenant shall indemnify and hold Landlord harmless against and
from liability and claims of any kind or loss or damage to property of
Tenant or any other person, or for any injury or death of any person,
arising out of: (1) Tenant's negligent use or occupancy of the
Premises, or nay work, activity or other things allowed or suffered by
Tenant to be done in, or about the Premises; (2) and breach of default
by Tenant of any
279
of Tenant's obligations under this Lease; or (3) and negligent or
otherwise tortious act or omission of Tenant, its agents, employees,
invitees and contractors. Tenant shall provide insurance as set forth
in Section 22 infra, for this purpose.
Paragraph 27.3, Landlord's Default, is amended as follows:
If Landlord fails to perform and covenant, condition or
agreement contained in this Lease within thirty (30) days after
receipt of written notice from Tenant specifying such default, or if
such default cannot reasonably be cured within (30) days, if Landlord
fails to commence to cure within that thirty (30) day period, then
Landlord shall be liable to Tenant for any damages sustained by Tenant
as a result of Landlord's breach.
FURTHER TERMS
Paragraph 38. Tenant Improvements Allowance
The Landlord shall provide a Tenant allowance of Ninety-one
thousand eight hundred seventy-five dollars ($91,975.00) ($25.00
per rentable square foot) for Tenant improvements on the
leasehold, including building signage and space planning. Such
improvements will be made to the specifications of Tenant and
under Tenant's direction and control.
Paragraph 39. Free Rent
Tenant shall not be required to pay the Rent for the first
six (6) months of the Lease term, commencing with the
"Commencement Date".
Paragraph 40. Rent Adjustment
Notwithstanding any other provision of this Lease, the
monthly Rent shall increase in the thirty-first (31st) month by
eight percent (8%) to Five thousand eight hundred ninety-five
dollars and ninety-one cents ($5,895.99) and in the sixty-first
961st) month by ten percent (10%) to Six thousand four hundred
eighty-five dollars and fifty-nine cents ($6,485.59).
Paragraph 41. Options to Extend Lease Term
Tenant shall have the option to extend the Lease term by (3)
successive sixty (60) month periods. The Base Rent shall increase
in the first
280
month of each option period by ten percent (10%) of the Base Rent paid
in the last month of the previous period.
Paragraph 42. Tenant Parking Space Designation
The ten (10) parking spaces to be reserved for the Tenant in the
parking lot immediately adjacent to West wall of the building shall
clearly marked to identify their exclusive use by Chino Valley Bank.
The Landlord shall insure for a period of year that the Tenant's
exclusive use of these spaces shall be enforced.
Paragraph 43. Tenant Signage
The Tenant shall have until May 15, 1993 to design the signage
for the property and obtain approval from the Landlord and all
necessary governmental agencies. In the event that Landlord or
governmental agencies do not approve the proposed signage, then Chino
Valley Bank shall be entitled to cancel this Lease.
281
The foregoing amendments are incorporated in and become a part of a Lease
Agreement between the parties hereto. The foregoing is agreed to:
DATED: 3/2/93
RCI-LORING, L.P.
a California limited partnership
By: Riverside Commercial Investor, Inc.
a California corporation, General
Partner
By:/s/ Rufus C. Barkley III
RUFUS C. BARKLEY, III
President
DATED:
C.V.B. FINANCIAL CORPORATION,
a California Corporation
By: /s/ Robert J Schurheck, EVP
Robert J. Schurheck
Chief Financial Officer
282
EXHIBIT 23
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
The Board of Directors and Stockholders
CVB Financial Corp.
We consent to the incorporation by reference in the 1981 Stock
Option Plan Registration Statement No. 2-76121 on Form S-8, the
1991 Stock Option Plan Registration Statement No. 33-41318 on
Form S-8 and the Key Employee Stock Grant Plan Registration
Statement No. 33-50442 on Form S-8 of our report dated
January 27, 1994, appearing on page 79 of this Annual Report
in Form 10-K for the fiscal year ended December 31, 1993.
/s/ Deloitte & Touche
Deloitte & Touche
Los Angeles, California
March 28, 1994
283