U.S. Securities and Exchange Commission
Washington, D.C. 20549
Form 10-K
[X] ANNUAL REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF
1934
For the fiscal year ended December 31, 2000
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from _______ to _______
Commission file number 33-67254
Commercial Bankshares, Inc.
(Exact name of registrant as specified in its charter)
Florida 65-0050176
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(State or other jurisdiction of ( I.R.S. Employer
incorporation or organization) Identification No.)
1550 S.W. 57th Avenue, Miami, Florida 33144
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (305) 267-1200
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Securities registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which registered
None None
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Securities registered pursuant to Section 12(g) of the Act:
Common Stock, $.08 par value per share
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(Title of class)
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 past 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 (229.405 of this chapter) 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 [ ].
As of March 23, 2001, 3,603,342 shares of the common voting stock were issued
and outstanding, of which 3,182,583 shares with an aggregate market value of
$57.3 million, based on the closing price on the NASDAQ market, were held by
non-affiliates of the registrant.
Documents Incorporated by Reference
1. Certain portions of the Annual Report to Shareholders of Commercial
Bankshares, Inc., for fiscal year ended December 31, 2000 are incorporated
by reference into Part I and Part II.
2. Certain portions of the Company's Proxy Statement for the 2001 Annual Meeting
of Shareholders to be held on April 19, 2001 are incorporated by reference
into Part III.
Table of Contents
Description Page No.
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Part I
Item 1. Business....................................................1
Item 2. Properties..................................................7
Item 3. Legal Proceedings...........................................7
Item 4. Submission of Matters to a Vote of Security Holders.........7
Part II
Item 5. Market for Registrant's Common Equity and Related
Stockholder Matters.........................................8
Item 6. Selected Financial Data.....................................8
Item 7. Management's Discussion and Analysis of Financial
Condition and Results of Operations.........................8
Item 7A. Quantitative and Qualitative Disclosures About Market Risk..8
Item 8. Financial Statements and Supplementary Data.................8
Item 9. Changes in and Disagreements With Accountants
on Accounting and Financial Disclosure......................8
Part III
Item 10. Directors and Executive Officers of the Registrant..........8
Item 11. Executive Compensation......................................8
Item 12. Security Ownership of Certain Beneficial Owners
and Management..............................................9
Item 13. Certain Relationships and Related Transactions..............9
Part IV
Item 14. Exhibits, Financial Statement Schedules, and Reports
on Form 8-K.................................................9
Signatures.............................................................11
Exhibit 10.14 Second Amendment to Lease...............................12
Exhibit 10.15 Agreement for Item Processing Services..................18
Exhibit 23.1 Consent of Independent Certified Public Accountants.......32
PART I
Item 1. Business.
Commercial Bankshares, Inc.
Commercial Bankshares, Inc., (the "Company"), a Florida corporation
organized in 1988,is a bank holding company registered under the Bank Holding
Company Act of 1956 ("BHCA"), as amended, whose wholly owned subsidiary and
principal asset is the Commercial Bank of Florida, (the "Bank"). The Company,
through its ownership of the Bank, is engaged in a commercial banking business,
and its primary source of earnings is derived from income generated by its
ownership and operation of the Bank. Unless the context otherwise requires,
references herein to the Company include the Company and its wholly owned
subsidiary, the Bank, on a consolidated basis.
The Company is a legal entity separate and distinct from the Bank, and
there are various legal limitations on the ability of the Bank to finance or
otherwise supply funds to the Company. In particular, under federal banking
law, the Bank may not declare a dividend that exceeds undivided profits. In
addition, the approval of the Federal Reserve Bank of Atlanta ("Atlanta FRB")
and the Florida Department of Banking and Finance is required if the total
amount of all dividends declared in any calendar year exceeds the Bank's net
profits, as defined, for that year combined with its retained net profits for
the preceding two years. The Atlanta FRB also has the authority to limit
further the payment of dividends by the Bank under certain circumstances. In
addition, federal banking laws prohibit or restrict the Bank from extending
credit to the Company under certain circumstances.
In 1993, the Company filed a Registration Statement on Form SB-2 with the
Securities and Exchange Commission covering an initial public offering and
issued the maximum of 977,500 shares of common stock thereunder. Net proceeds
of approximately $10 million from this offering were invested in short-term
securities pending utilization for future acquisition of other financial
institutions or branches, working capital, general corporate purposes, and
investment in the wholly owned banking subsidiary.
Commercial Bank of Florida
The Bank is a Florida chartered banking corporation originally chartered
in February, 1979. It operated as Sunset Commercial Bank until its acquisition
by the Company in 1988, at which time its name was changed to Commercial Bank
of Florida. The Bank engages in commercial banking and related businesses from
its fourteen banking facilities: its main office and nine other offices located
in Miami-Dade County, Florida, and four offices in Broward County, Florida.
The Bank is operated as a network of community bank branches. The Bank
primarily focuses on providing personalized banking services to small businesses
and individuals within the market areas where its banking offices are located.
Management believes that this local market strategy, accompanied by the
strategic placement of Bank personnel within market areas where they have
served customers for many years, enables the Bank to attract and retain low
cost core deposits, which provide substantially all of the Bank's funding
requirements.
Deposit products include certificates of deposit, individual retirement
accounts ("IRAs") and other time deposits, checking and other demand deposit
accounts, NOW accounts, savings accounts, and money market accounts. The
transaction accounts and time certificates are tailored to the principal
market areas at rates competitive to those in the area. All deposit accounts
are insured by the Federal Deposit Insurance Corporation ("FDIC") up to the
maximum limits permitted by law. The Bank solicits these accounts from small
businesses, professional firms, and households located throughout its primary
market area.
The Bank also offers ATM cards with access to local, state, and national
networks, safe deposit boxes, wire transfers, direct deposit of payroll and
social security payments, and automatic drafts for various accounts. The
Bank presently does not provide fiduciary or appraisal services.
The Bank conducts commercial and consumer banking business, which primarily
consists of attracting deposits from the areas served by its banking offices
and using those deposits, together with funds derived from other sources, to
originate a variety of commercial, consumer, and real estate loans (including
commercial loans collateralized by real estate).
The Company considers the general business of retail banking to be its
only operating segment.
As is the case with banking institutions generally, the Bank's operations
are materially and significantly influenced by general economic conditions and
by related monetary and fiscal policies of financial institution regulatory
agencies, including the Federal Reserve Board ("FRB"), the FDIC, and the State
of Florida. Deposit flows and the cost of funds are influenced by interest
rates on competing investments and general market rates of interest. Lending
activities are affected by the demand for financing of real estate and other
types of loans, which in turn is affected by the interest rates at which such
financing may be offered and other factors affecting local demand and
availability of funds. The Bank faces strong competition in the attraction
of deposits (its primary source of lendable funds) and in the origination of
real estate loans.
Employees
At December 31, 2000, the Company and the Bank together employed 187
employees, of whom seven are part-time. None of these employees is covered
by a collective bargaining agreement. The Company believes that its employee
relations are good.
Market Information
The Bank's fourteen banking offices are located in Miami-Dade and Broward
Counties, which comprise the Bank's primary market area. Management believes
that the Bank's principal markets are: (i) the established and expanding
commercial market within the primary market area; and (ii) the moderate and
the affluent residential market within the primary market area. Management
also believes that the most profitable banking relationships are characterized
by high deposit balances with a low frequency of transactions. Moreover,
management believes that a community bank with local management is well
positioned to establish these relationships with the smaller commercial
customers and households. Management believes that the Bank is well positioned
to take advantage of its market segment.
Competition
Competition in the banking and financial services industry is intense.
In its primary market areas, the Bank competes with other commercial banks,
savings institutions, credit unions, finance companies, mutual funds, insurance
companies, and brokerage and investment banking firms operating locally and
elsewhere. Most of these competitors have substantially greater resources and
lending limits than the Bank and may offer certain services, such as trust
services, that the Bank does not provide at this time. In addition many of the
Company's non-bank competitors are not subject to the same extensive federal
regulations that govern the Bank and the Company. The profitability of the
Company depends upon the Bank's ability to compete in its market areas.
SUPERVISION AND REGULATION
Bank holding companies and banks are extensively regulated under both
federal and state law. These laws and regulations are intended to protect
depositors, not stockholders. To the extent that the following information
describes statutory and regulatory provisions, it is qualified in its entirety
by reference to the particular statutory and regulatory provisions. Any change
in the applicable law or regulation may have a material effect on the business
and prospects of the Company and the Bank.
Bank Holding Company Regulation
As a bank holding company registered under the BHCA, the Company is
subject to the regulation and supervision of the FRB. The Company is required
to file with the FRB annual reports and other information regarding its
business operations and those of its subsidiaries. Under the BHCA, the
Company's activities and those of its subsidiaries are limited to banking,
managing or controlling banks, furnishing services to or performing services
for its subsidiaries, or engaging in any other activity which the FRB
determines to be so closely related to banking or managing or controlling
banks as to be properly incident thereto.
The BHCA requires, among other things, the prior approval of the FRB in
any case where a bank holding company proposes to (i) acquire all or
substantially all of the assets of any other bank, (ii) acquire direct or
indirect ownership or control of more than 5% of the outstanding voting stock
of any bank (unless it owns a majority of such bank's voting shares), or (iii)
merge or consolidate with any other bank holding company. The FRB will not
approve any acquisition, merger, or consolidation that would have a
substantially anti-competitive effect, unless the anti-competitive impact of
the proposed transaction is clearly outweighed by a greater public interest
in meeting the convenience and needs of the community to be served. The FRB
also considers capital adequacy and other financial and managerial resources
and future prospects of the companies and the banks concerned, together with
the convenience and needs of the community to be served, when reviewing
acquisitions or mergers.
Additionally, the BHCA prohibits a bank holding company, with certain
limited exceptions, from (i) acquiring or retaining direct or indirect
ownership or control of more than 5% of the outstanding voting stock of any
company which is not a bank or bank holding company, or (ii) engaging directly
or indirectly in activities other than those of banking, managing, or
controlling banks, or performing services for its subsidiaries, unless such
non-banking business is determined by the FRB to be so closely related to
banking or managing or controlling banks as to be properly incident thereto.
In making such determinations, the FRB is required to weigh the expected
benefits to the public, such as greater convenience, increased competition,
or gains in efficiency, against the possible adverse effects, such as under-
concentration of resources, decreased or unfair competition, conflicts of
interest, or unsound banking practices.
There are a number of obligations and restrictions imposed on bank holding
companies and their depository institution subsidiaries by law and regulatory
policy that are designed to minimize potential loss to the depositors of such
depository institutions and the FDIC insurance funds in the event the
depository institution becomes in danger of default or in default. Under a
policy of the FRB with respect to bank holding company operations, a bank
holding company is required to serve as a source of financial strength to its
subsidiary depository institutions and to commit resources to support such
institutions in circumstances where it might not do so absent such policy.
The FRB also has the authority under the BHCA to require a bank holding
company to terminate any activity or to relinquish control of a nonbank
subsidiary (other than a nonbank subsidiary of a bank) upon the FRB's
determination that such activity or control constitutes a serious risk to the
financial soundness and stability of any bank subsidiary of the bank holding
company.
Capital Adequacy Guidelines for Bank Holding Companies
The Company is subject to certain FRB risk-based capital guidelines for
bank holding companies. The risk-based capital guidelines are designed to
make regulatory capital requirements more sensitive to differences in risk
profile among banks and bank holding companies, to account for off-balance
sheet exposure, and to minimize disincentives for holding liquid assets.
Under these guidelines, assets and off-balance sheet items are assigned to
broad risk categories, each with appropriate weights. The resulting capital
ratios represent capital as a percentage of total risk-weighted assets and off-
balance sheet items.
The minimum ratio of total capital to risk-weighted assets (including
certain off-balance sheet activities, such as standby letters of credit) is 8%.
At least 4% of the total capital is required to be "Tier I Capital," which
consists of common stockholders' equity, noncumulative perpetual preferred
stock, and a limited amount of cumulative perpetual preferred stock, less
certain goodwill items and the unrealized holding gain/loss on available for
sale securities. The remainder ("Tier II Capital") may consist of (i) the
allowance for loan losses of up to 1.25% of risk-weighted risk assets, (ii)
45% of unrealized holding gain on available for sale equity securities, (iii)
excess of qualifying perpetual preferred stock, (iv) hybrid capital instruments,
(v) perpetual debt, (vi) mandatory convertible securities, and (vii)
subordinated debt and intermediate-term preferred stock up to 50% of Tier I
capital. Total capital is the sum of Tier I and Tier II capital less
reciprocal holdings of other banking organizations' capital instruments,
investments in unconsolidated subsidiaries, and any other deductions as
determined by the FRB (determined on a case by case basis or as a matter of
policy after formal rule-making).
Bank holding company assets are given risk-weights of 0%, 20%, 50% and
100%. In addition, certain off-balance sheet items are given similar credit
conversion factors to convert them to asset-equivalent amounts to which an
appropriate risk-weight will apply. These computations result in the total
risk-weighted assets.
The Company's management believes that the risk-weighting of assets under
current FRB guidelines does not and will not have a material impact on the
Company's operations or on the operations of the Bank. As of December 31,
2000 and 1999, the Company's total risk-based capital ratios were 14.30% and
16.34%, respectively. In addition to the risk-based capital guidelines, the
FRB has adopted a minimum Tier I capital (leverage) ratio, under which a bank
holding company must maintain a minimum level of Tier I capital to total
consolidated assets of at least 3% in the case of a bank holding company that
has the highest regulatory examination rating and is not contemplating
significant growth or expansion. All other bank holding companies are
expected to maintain a leverage ratio of at least 100 to 200 basis points
above the stated minimum. Federal Reserve Board requirements also provide
that bank holding companies experiencing internal growth or making acquisitions
will be expected to maintain strong capital positions substantially above
regulatory minimums without significant reliance on intangible assets. The
Federal Reserve Board may continue to consider a "tangible Tier 1 leverage
ratio" (deducting all intangibles) in evaluating proposals for expansion or
new activities. As of December 31, 2000 and 1999, the Company's leverage
ratios were 8.17% and 9.23%, respectively.
Interstate Banking and Branching Legislation
The Riegle-Neal Interstate Banking and Branching Efficiency Act of 1994
("IBBEA") authorizes interstate acquisitions of banks and bank holding
companies without geographic limitation. In addition, beginning June 1, 1997,
the IBBEA authorizes a bank to merge with a bank in another state as long as
neither of the states has opted out of interstate branching between the date
of enactment of the IBBEA and May 31, 1997. The IBBEA further provides that
states may enact laws permitting interstate bank merger transactions prior to
June 1, 1997. Florida law permits bank holding companies, regardless of what
region they are located in, to acquire Florida banking organizations, provided
that the home state of the acquiring company has enacted reciprocal legislation.
Under IBBEA, a bank may establish and operate a de novo branch in a state
in which the bank does not maintain a branch if that state expressly permits
de novo branching. Once a bank has established branches in a state through
an interstate merger transaction, the bank may establish and acquire additional
branches at any location in the state where any bank involved in the interstate
merger transaction could have established or acquired branches under applicable
federal or state law. A bank that has established a branch in a state through
de novo branching may establish and acquire additional branches in such state
in the same manner and to the same extent as a bank having a branch in such
state as a result of an interstate merger. If a state opts out of interstate
branching within the specified time period (Florida has not), no bank in any
other state may establish a branch in the opting-out state, either through an
acquisition or de novo.
Bank Regulation
The Bank is a state-chartered banking corporation and is subject to the
supervision of and regular examination by the FRB and the Florida Department
of Banking and Finance, as well as to the supervision of the FDIC.
The operations of the Bank are subject to state and federal statutes
applicable to banks which are members of the Federal Reserve System and to
the regulations of the FRB, the FDIC, and the State of Florida. Such statutes
and regulations relate to required reserves against deposits, investments,
loans, mergers and consolidations, issuance of securities, payment of
dividends, establishment of branches, and other aspects of the Bank's
operations. Various consumer laws and regulations also affect the operations
of the Bank, including state usury laws, laws relating to fiduciaries, consumer
credit and equal credit, and fair credit reporting. Under the provisions of
the Federal Reserve Act, the Bank is subject to certain restrictions on any
extensions of credit to the Company or, with certain exceptions, to other
affiliates, on investments in the stock or other securities of national banks,
and on the taking of such stock or securities as collateral. These regulations
and restrictions may limit the Company's ability to obtain funds from the Bank
for its cash needs, including funds for acquisitions and the payment of
dividends, interest, and operating expenses.
The FDIC insures the deposits of the Bank to the current maximum allowed
by law. As an institution whose deposits are insured by the Bank Insurance
Fund ("BIF") and Savings Association Insurance Fund ("SAIF") of the FDIC, the
Bank also is subject to insurance assessments imposed and set by the FDIC from
time to time. The FDIC is further authorized to impose one or more special
assessments in any amount deemed necessary to enable repayment of amounts
borrowed by the FDIC from the Treasury Department. The actual assessments to
be paid into the BIF and the SAIF are based on the institution's assessment
risk classification, which is whether the institution is considered "well
capitalized", "adequately capitalized", or "under-capitalized", as those
terms have been defined in applicable federal regulations, and whether the
institution is considered by its supervising agency to be financially sound
or to have supervisory concerns.
Gramm-Leach-Bliley Act
The Gramm-Leach-Bliley Act (the "Act") was signed into law in November
1999 to remove depression-era barriers that separate banking, securities and
insurance functions. The Act allows full affiliation between banks and
securities firms by permitting the creation of financial holding companies
designed to engage in a range of financial activities, including securities
underwriting and merchant banking. The Act also repeals the SAIF special
reserve; modernizes the Federal Home Loan Bank System; provides for less
frequent Community Reinvestment Act ("CRA") compliance examinations for
community banks with $250 million or less in assets, and gives customers the
right to prevent banks from sharing information with third parties, such as
telemarketers. The Act prohibits unitary savings and loan holding companies
formed after May 4, 1999 from engaging in nonfinancial activities, and also
prohibits purchase of unitary thrift holding companies by commercial firms.
The Act contains requirements for the protection of consumer's financial
privacy ("Regulation P"). The Bank has identified obligations, developed a
privacy policy and will provide disclosure of the policy to customers in the
second quarter of 2001. The Bank will be in full compliance with Regulation
P by July 1, 2001. Certain provisions of the Act were effective immediately
upon signing; other provisions generally take effect between 120 days and 18
months following enactment.
Federal Deposit Insurance Corporation Improvement Act of 1991 ("FDICIA")
Among other things, the FDICIA provides the federal bank regulatory
agencies with broad powers to take prompt corrective action to resolve
problems of insured depository institutions. The extent of those powers
depends upon whether the institution in question is "well capitalized",
"adequately capitalized", "undercapitalized", "significantly undercapitalized",
or "critically undercapitalized." A depository institution's capital tier will
depend upon where its capital levels compare to various established capital
measures and certain other factors, as established by regulation. As of
December 31, 2000, the Bank met the definition of a "well capitalized"
institution.
The FDICIA generally prohibits a depository institution from making any
capital distribution (including payment of a dividend) or paying any management
fee to its holding company if the depository institution would thereafter be
"undercapitalized". "Undercapitalized" depository institutions are subject
to growth limitations and are required to submit a capital restoration plan.
If a depository institution fails to submit an acceptable plan, it is treated
as if it is "significantly undercapitalized". "Significantly undercapitalized"
depository institutions may be subject to a number of requirements and
restrictions, including orders to sell sufficient voting stock to become
"adequately capitalized", requirements to reduce total assets, and cessation of
receipt of deposits from correspondent banks. "Critically undercapitalized"
institutions are subject to the appointment of a receiver or conservator.
The FDICIA further requires an increase in the frequency of "full-scope,
on-site" examinations and expands audit requirements. In addition, federal
bank regulatory agencies are required to review and prescribe uniform
accounting standards that are at least as stringent as Generally Accepted
Accounting Principles.
Pursuant to the FDICIA, the FRB and the other federal bank regulatory
agencies adopted real estate lending guidelines pursuant to which each
insured depository institution is required to adopt and maintain written real
estate lending policies in conformity with the prescribed guidelines. Under
these guidelines, each institution is expected to set loan-to-value ratios
not exceeding the supervisory limits set forth in the guidelines. A loan-to-
value ratio is generally defined as the total loan amount divided by the
appraised value of the property at the time the loan is originated. The
guidelines also require that the institution's real estate policy require
proper loan documentation and that it establish prudent underwriting
standards.
The FDICIA also contains the Truth in Savings Act. The purpose of the
Truth in Savings Act is to require the clear and uniform disclosure of the
rates of interest which are payable on deposit accounts by depository
institutions and the fees that are assessable against deposit accounts, so
that consumers can make a meaningful comparison between the competing claims
of financial institutions with regard to deposit accounts and products.
The FDICIA also amended the prior law with respect to the acceptance of
brokered deposits by insured depository institutions to permit only a "well
capitalized" depository institution to accept brokered deposits without prior
regulatory approval. Under implementing regulations, "well capitalized" banks
may accept brokered deposits with a waiver from the FDIC (subject to certain
restrictions on payments of rates), while "undercapitalized" banks may not
accept brokered deposits. The regulations contemplate that the definitions
of "well capitalized", "adequately capitalized", and "undercapitalized" will
be the same as the definitions adopted by the agencies to implement the prompt
corrective action provisions of the FDICIA (as described above).
The Bank is subject to the provisions of FDICIA relating to internal
controls effective January 1, 2001. These provisions are required for banks
over $500 million in assets and requires that the Bank document and test its
internal control structure and report on it on an annual basis. The Bank
will comply with all applicable sections of the regulation and will report
as required in the first quarter of 2002.
Payment of Dividends
The Bank is subject to legal limitations on the frequency and amount of
dividends paid to the Company. The FRB or the FDIC may restrict the ability
of a bank to pay dividends if such payments would constitute an unsafe or
unsound banking practice. These regulations and restrictions may limit the
Company's ability to obtain funds from the Bank for its cash needs, including
funds for acquisitions and the payment of dividends, interest, and operating
expenses.
In addition, Florida law places certain restrictions on the declaration of
dividends from state-chartered banks to their holding companies. Pursuant to
Section 658.37 of the Florida Banking Code, the Board of Directors of a state-
chartered bank, after charging off bad debts, depreciation, and other worthless
assets, if any, and making provisions for reasonably anticipated future losses
on loans and other assets, may quarterly, semi-annually, or annually declare a
dividend of up to the aggregate of net profits of that period, combined with
the bank's retained net profits for the preceding two years and, with the
approval of the Florida Department of Banking and Finance, declare a dividend
from retained net profits which accrued prior to the preceding two years.
Before declaring such dividends, 20% of the net profits for the preceding
period as is covered by the dividend must be transferred to the surplus fund
of the bank until this fund becomes equal to the amount of the bank's common
stock then issued and outstanding. A state-chartered bank may not declare
any dividend if (i) its net income from the current year combined with the
retained net income for the preceding two years is a loss, or (ii) the
payment of such dividend would cause the capital account of the bank to fall
below the minimum amount required by law, regulation, order, or any written
agreement with the Florida Department of Banking and Finance or a federal
regulatory agency.
Depositor Preference Statute
Legislation has been enacted providing that deposits and certain claims
for administrative expenses and employee compensation against an insured
depository institution would be afforded a priority over other general
unsecured claims against such an institution, including federal funds and
letters of credit, in the "liquidation or other resolution" of such an
institution by any receiver.
Monetary Policy And Economic Control
The commercial banking business in which the Bank engages is affected not
only by general economic conditions but also by the monetary policies of the
FRB. Changes in the discount rate on member bank borrowing, availability of
borrowing at the "discount window," open market operations, the imposition of
changes in reserve requirements against member banks' deposits and assets of
foreign branches, and the imposition of and changes in reserve requirements
against certain borrowings by banks and their affiliates are some of the
instruments of monetary policy available to the FRB. These monetary policies
are used in varying combinations to influence overall growth and distributions
of bank loans, investments, and deposits, and this use may affect interest
rates charged on loans or paid on deposits. The monetary policies of the FRB
have had a significant effect on the operating results of commercial banks and
are expected to do so in the future. The monetary policies of these agencies
are influenced by various factors, including inflation, unemployment, and short-
term and long-term changes in the international trade balance and in the fiscal
policies of the United States Government. Future monetary policies and the
effect of such policies on the future business and earnings of the Company and
the Bank cannot be predicted.
Item 2. Properties.
The Company occupies offices in a building located at 1550 S.W. 57th
Avenue, Miami, Florida. This building also serves as the Bank's main office.
Both the building and the 81,400 square foot parcel of commercial property on
which it is situated are owned by the Bank. The Bank's and the Company's
offices occupy the entire 24,228 square foot building. Management believes
that this location provides sufficient parking for its customers as well
as visibility from S.W. 57th Avenue, a major thoroughfare.
The Bank owns ten of its fourteen full-service branches and leases the
remaining four offices. Additional information relating to the Company's
lease commitments is set forth in Note 4 on page 27 in the 2000 Annual Report
and is incorporated herein by reference. The condition of all properties is
considered good. In the opinion of management, owned properties are adequately
covered by insurance.
Item 3. Legal Proceedings.
The Company and the Bank are periodically parties to or otherwise involved
in legal proceedings arising in the normal course of business, such as claims
to enforce liens, claims involving the making and servicing of real property
loans, and other issues incident to the Bank's business. Management does not
believe that there is any pending or threatened proceeding against the Company
or the Bank which, if determined adversely, would have a material effect on the
business, results of operations, or financial position of the Company or the
Bank.
Item 4. Submission of Matters to a Vote of Security Holders.
Not applicable.
PART II
Item 5. Market for Registrant's Common Equity and Related Stockholder Matters.
Information required to be reported under this item is set forth on pages
13 and 14 of the 2000 Annual Report to Shareholders and is incorporated herein
by reference.
Item 6. Selected Financial Data.
Information required to be reported under this item is set forth on pages
2 and 3 of the 2000 Annual Report to Shareholders and is incorporated herein by
reference.
Item 7. Management's Discussion and Analysis of Financial Condition and
Results of Operations.
Information required to be reported under this item is set forth on pages
4 through 16 of the 2000 Annual Report to Shareholders and is incorporated
herein by reference.
Item 7A. Quantitative and Qualitative Disclosures About Market Risk.
Information required to be reported under this item is set forth on pages
15 through 16 of the 2000 Annual Report to Shareholders under the section
entitled "Asset/Liability Management and Interest Rate Risk", and is
incorporated herein by reference.
Item 8. Financial Statements and Supplementary Data.
The information required to be reported under this item is set forth on
pages 17 through 35 of the 2000 Annual Report to Shareholders and is
incorporated herein by reference.
Item 9. Changes in and Disagreements With Accountants on Accounting and
Financial Disclosure.
Not applicable.
PART III
Item 10. Directors and Executive Officers of the Registrant.
Information required to be reported under this item is set forth on pages
2 through 3 of the Commercial Bankshares, Inc. Proxy Statement and is
incorporated herein by reference.
Item 11. Executive Compensation.
Information required to be reported under this item is set forth on pages
6 and 7 of the Commercial Bankshares, Inc. Proxy Statement and is incorporated
herein by reference.
Item 12. Security Ownership of Certain Beneficial Owners and Management.
Information required to be reported under this item is set forth on pages
4 through 5 of the Commercial Bankshares, Inc. Proxy Statement and is
incorporated herein by reference.
Item 13. Certain Relationships and Related Transactions.
Information required to be reported under this item is set forth on pages
3 through 4 of the Commercial Bankshares, Inc. Proxy Statement and is
incorporated herein by reference.
PART IV
Item 14. Exhibits, Financial Statement Schedules, and Reports on Form 8-K.
(a) Exhibits
3.1 Articles of Incorporation, as amended, of the Company. Incorporated
by reference to Exhibit 3.1 of the Company's Registration Statement
on Form SB-2 as filed with the Securities and Exchange Commission,
No. 33-67254, effective October 5, 1993 ("Registration Statement").
3.2 By-Laws, as amended, of the Company. Incorporated by reference to
Exhibit 3.2 of the Registration Statement.
10.1 Standard Office Building Lease between Swire Brickell One, Inc.,
d/b/a "Courvoisier Center" (Landlord) and Commercial Bank of Florida
(Tenant), dated December 21, 1990. Incorporated by reference to
Exhibit 10.2 of the Registration Statement.
10.2 Form of Indemnification Agreement. Incorporated by reference to
Exhibit 10.4 of the Registration Statement.
10.3 Employment Agreement between Commercial Bankshares, Inc., Commercial
Bank of Florida, and Joseph W. Armaly, dated March 18, 1994 and
amended and restated on December 18, 1998. Incorporated by reference
to Exhibit 10.3 that accompanies the 1998 Annual Report on Form 10-K.
10.4 Employment Agreement between Commercial Bankshares, Inc., Commercial
Bank of Florida, and Jack J. Partagas, dated March 18, 1994 and
amended and restated on December 18, 1998. Incorporated by reference
to Exhibit 10.4 that accompanies the 1998 Annual Report on Form 10-K.
10.5 Employment Agreement between Commercial Bank of Florida and Barbara
Reed, dated February 5, 1997. Incorporated by reference to Exhibit
10.5 that accompanies the 1996 Annual Report on Form 10-K.
10.6 Employment Agreement between Commercial Bank of Florida and Bruce
Steinberger, dated December 18, 1998. Incorporated by reference
to Exhibit 10.6 that accompanies the 1998 Annual Report on Form 10-K.
10.7 Commercial Bankshares, Inc., 1994 Outside Director Stock Option Plan,
effective as of March 18, 1994. Incorporated by reference to Exhibit
10.7 that accompanies the 1993 Annual Report on Form 10-KSB.
10.8 Commercial Bankshares, Inc., 1994 Performance Stock Option Plan,
adopted March 18, 1994, effective April 1, 1994. Incorporated by
reference to Exhibit 10.8 that accompanies the 1993 Annual Report
on Form 10-KSB.
10.9 Shopping Center Lease dated July 31, 1992, between Pembroke
Associates, as Landlord, and Carteret Savings Bank, F.A., as Tenant
("Lease"). The Lease was assigned to Commercial Bank of Florida by
the Resolution Trust Corporation as Receiver of Carteret Federal
Savings Bank of Florida (successor to Carteret Federal Savings Bank
and Carteret Savings and Loan Association, F.A.), pursuant to Lease
Assignment and Assumption Agreement dated December 5, 1994.
Incorporated by reference to Exhibit 10.9 that accompanies the 1994
Annual Report on Form 10-KSB.
10.10 Lease dated January 1, 1992, between Julius Mufson, Trustee, and
Alan J. Goldstein, Trustee, d/b/a Hallandale Place Joint Venture
(as Landlord) and Carteret Savings Bank, as Tenant ("Lease"). The
Lease was assigned to Commercial Bank of Florida by the Resolution
Trust Corporation, as Receiver of Carteret Federal Savings Bank of
Florida (successor to Carteret Federal Savings Bank and Carteret
Savings and Loan Association, F.A.) pursuant to Lease Assignment and
Assumption Agreement dated December 5, 1994. Incorporated by
reference to Exhibit 10.10 that accompanies the 1994 Annual Report
on Form 10-KSB.
10.11 Standard Office Building Lease, dated December 10, 1996, between
Promenade of Coral Springs, Inc. (Landlord) and Commercial Bank of
Florida (Tenant), (filed herewith).
10.12 Commercial Bankshares, Inc., Amendment to 1994 Outside Director Stock
Option Plan, dated January 15, 1999. Incorporated by reference to
Exhibit 10.13 that accompanies the 1998 Annual Report on Form 10-K.
10.13 Commercial Bankshares, Inc., Amendment to 1994 Performance Stock
Option Plan dated January 15, 1999. Incorporated by reference
to Exhibit 10.14 that accompanies the 1998 Annual Report on Form
10-K.
10.14 Commercial Bankshares, Inc., Amendment to Standard Office Building
Lease between Swire Brickell One, Inc., d/b/a "Courvoisier Center"
(Landlord) and Commercial Bank of Florida (tenant), dated December
21, 2000 (filed herewith).
10.15 Agreement to provide data processing and back office services between
Electronic Data Systems and Commerical Bank of Florida, dated
December 7, 1999 (filed herewith).
11.1 Computation of Earnings per Common and Common Equivalent Share.
Information required to be reported under this exhibit is set
forth on page 30 of the 2000 Annual Report to Shareholders and is
incorporated herein by reference.
13.1 2000 Annual Report to Shareholders of Commercial Bankshares, Inc. *
21.1 Subsidiaries of the Company. Information required to be reported
under this exhibit is incorporated by reference to exhibit 21.1
that accompanies the 1996 Annual Report on Form 10-K.
23.1 Consent of PricewaterhouseCoopers LLP (filed herewith).
All other exhibits are omitted because they are not applicable.
(b) No reports on Form 8-K have been filed during the last quarter of
the period covered by this report.
* Except for those portions of the Annual Report which are
expressly incorporated by reference in this Form 10-K, the Annual
Report is furnished for the information of the Securities and
Exchange Commission only and is not to be deemed "filed" as part
of such Form 10-K.
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.
COMMERCIAL BANKSHARES, INC.
---------------------------
(Registrant)
By:/s/ Jack J. Partagas
--------------------
Jack J. Partagas
President and Chief Operating Officer
March 23, 2001
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 and in the capacities and on the dates indicated.
Signature Title Date
----------------------- ----------------------------- --------------
By:/s/ Joseph W. Armaly Chairman of the Board March 23, 2001
-------------------- of Directors and
Joseph W. Armaly Chief Executive Officer
(Principal Executive Officer)
By:/s/ Jack J. Partagas President, March 23, 2001
-------------------- Chief Operating Officer,
Jack J. Partagas and Director
By:/s/ Cromwell A. Anderson Director March 23, 2001
------------------------
Cromwell A. Anderson
By:/s/ Martin Yelen Director March 23, 2001
------------------------
Martin Yelen
By:/s/ Robert Namoff Director March 23, 2001
------------------------
Robert Namoff
By:/s/ Barbara E. Reed Senior Vice President March 23, 2001
------------------------ and Chief Financial Officer
Barbara E. Reed
EXHIBIT 10.14
SECOND AMENDMENT TO LEASE
THIS SECOND AMENDMENT TO LEASE (this "Amendment") is entered into as of
December 21, 2000, between FBEC - BRICKELL KEY CENTRE, L.P., a Delaware limited
partnership (successor by merger to Swire Brickell One Inc.) ("Landlord"), and
COMMERCIAL BANK OF FLORIDA, a Florida banking corporation ("Tenant").
R E C I T A L S
A. Swire Brickell One, Inc. and Tenant entered into a certain Standard
Office Building Lease, dated December 21, 1990, as amended by First Amendment
to Standard Office Building Lease (the "First Amendment"), dated April 20, 1994
(as so amended, the "Lease"). Under the terms of the Lease, Landlord leases to
Tenant approximately 3,543 rentable square feet situated in Suite 100 (the
"Premises") of the building commonly known as Courvoisier Centre I, located at
501 Brickell Key Drive, Miami, Florida 33131 (the "Building").
B. The parties desire to amend the Lease to provide for the extension
of the Term of the Lease, as set forth in and subject to the terms and
conditions contained in this Amendment.
C. Although the Rentable Area of the Premises is stated in the Lease to
be 3,485 rentable square feet, the Premises have been remeasured, and such
re-measurement shows the Rentable Area of the Premises to be 3,543 rentable
square feet.
NOW, THEREFORE, in consideration of these premises and other good and
valuable consideration, the receipt and legal sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. Capitalized Terms. All capitalized terms which are not specifically
defined in this Amendment and which are defined in the Lease will have the same
meaning for purposes of this Amendment as they have in the Lease.
2. Lease Term. Subject to the terms and conditions set forth in this
Amendment, the Lease Term is hereby extended to expire on March 31, 2011. The
period beginning April 1, 2001 and ending March 31, 2011 is referred to as the
"Extension Term".
3. Premises. Beginning on the first day of the Extension Term, all
references in the Lease to the Rentable Area of the Premises being 3,485
rentable square feet are hereby replaced with 3,543 rentable square feet as
the new Rentable Area of the Premises. Beginning on the first day of the
Extension Term, all references in the Lease to the Rentable Area of the Building
feet are hereby replaced with 97,059 rentable square feet as the new Rentable
Area of the Premises.
4. Rental.
(a) Section 4 of the Lease is hereby amended such that during the
Extension Term, the following Base Rent will apply to the Premises (plus
applicable sales tax):
Monthly Installments
Period Annual Base Rent of Base Rent
--------------------- --------------------- -------------------------
April 1, 2001 through $108,061.56 $9,005.13
March 31, 2002 ($30.50 x 3,543 rsf / 12)
April 1, 2002 through $111,321.12 $9,276.76
March 31, 2003 ($31.42 x 3,543 rsf / 12)
April 1, 2003 through $114,651.48 $9,554.29
March 31, 2004 ($32.36 x 3,543 rsf / 12)
April 1, 2004 through $118,088.16 $9,840.68
March 31, 2005 ($33.33 x 3,543 rsf / 12)
April 1, 2005 through $121,631.16 $10,135.93
March 31, 2006 ($34.33 x 3,543 rsf / 12)
April 1, 2006 through $125,280.48 $10,440.04
March 31, 2007 ($35.36 x 3,543 rsf / 12)
April 1, 2007 through $129,036.12 $10,753.01
March 31, 2008 ($36.42 x 3,543 rsf / 12)
April 1, 2008 through $132,897.96 $11,074.83
March 31, 2009 ($37.51 x 3,543 rsf / 12)
April 1, 2009 through $136,901.52 $11,408.46
March 31, 2010 ($38.64 x 3,543 rsf / 12)
April 1, 2010 through the $141,011.40 $11,750.95
last day of the Term of the ($39.80 x 3,543 rsf / 12)
Lease (March 31, 2011)
(b) Under Section 5 of the Lease, during the Extension Term, Tenant
will continue to pay Tenant's proportionate share of the actual Operating
Expenses, Taxes and Insurance less the Base Amount. However, during the
Extension Term, the "Base Amount" shall mean a sum equal to the actual
"Operating Expenses," "Taxes" and "Insurance" of the Building for calendar
year 2001. Beginning on the first day of the Extension Term, Section 5(c)
of the Lease is hereby modified as follows:
(I) In line 19 of such Section 5(c), insert "(i)" between
"improvements" and "result;" and
(II) In line 26 of such Section 5(c), insert the following after
"associated parking areas" but before the period: "or (ii) are required by
governmental laws, codes, ordinances, rules or regulations, enacted, issued
or promulgated after the first day of the Extension Term, provided that, in
the case of such improvements required by law, (a) such cost is evenly
amortized by Landlord over the useful life of the capital improvement, with
interest on the unamortized amount, and (b) such amortized costs (including
interest as aforesaid) are only included in Operating Expenses under this
Lease for that portion of the useful life of the capital improvement which
falls within the Term."
(c) Beginning on the first day of the Extension Term, Section 5(a)
(Tenant's Proportionate Share) of the Lease is hereby amended as follows: the
phrase "3.33%" is hereby replaced with "3.6504%."
(d) Beginning on the first day of the Extension Term, Section 5 of
the Lease is hereby further modified as follows: In the third to last
grammatical paragraph of that Section, beginning and line 12 of such grammatical
paragraph, the phrase "Within sixty (60) days following the end of each calendar
year during the Term," is hereby replaced with "Following the end of each
calendar year during the Term,". The following is hereby inserted in line 19
of such grammatical paragraph after the phrase "as the case may be.":
"Landlord will use reasonable efforts to deliver such statement to Tenant
within 90 days after the end of the applicable calendar year, but Landlord's
failure to deliver such statement within such time will not alter Tenant's
obligations hereunder."
(e) Beginning on the first day of the Extension Term, the penultimate
grammatical paragraph of Section 5 of the Lease is hereby deleted and replaced
with the following:
"Notwithstanding any language in this Lease seemingly
to the contrary, if the Building is not fully occupied during
any calendar year of the Term, actual "Operating Expenses,"
"Taxes" and "Insurance" and the excess thereof over the Base
Amount for the purposes referenced above shall be determined
as if the Building had been fully occupied during such year.
Similarly, if the Building is not fully occupied during the
calendar year with respect to which the Base Amount was
calculated, actual "Operating Expenses," "Taxes" and
"Insurance" for the purposes of such Base Amount will be
determined for the calendar year with respect to which the
Base Amount was calculated as if the Building had been fully
occupied during such year. If Landlord is not required to
provide certain services to a tenant, then the costs of such
services will be apportioned among the tenants provided with
such services, and Tenant's Proportionate Share for such
services will be recomputed to equal the ratio that the
Rentable Area of Tenant's Premises bears to the total
Rentable Area of the demised premises of tenants provided
with such services. For the purposes of this Lease, "fully
occupied" means occupancy of 95% of the Rentable Area in
the Building."
5. Drive-In Facility. During the Extension Term, Tenant may continue to
use the Drive-In Facility as described in the First Amendment, and may continue
to purchase Validation Stickers at cost as described in the First Amendment.
However, the monthly Rent for such Drive-In Facility during the Extension Term
will be as follows (plus applicable sales tax):
Period Monthly Rent
--------------------- ------------
April 1, 2001 through $910.00
March 31, 2002
April 1, 2002 through $937.30
March 31, 2003
April 1, 2003 through $965.42
March 31, 2004
April 1, 2004 through $994.38
March 31, 2005
April 1, 2005 through $1,024.21
March 31, 2006
April 1, 2006 through $1,054.94
March 31, 2007
April 1, 2007 through $1,086.59
March 31, 2008
April 1, 2008 through $1,119.19
March 31, 2009
April 1, 2009 through $1,152.77
March 31, 2010
April 1, 2010 through the $1,187.35
last day of the Term of the
Lease (March 31, 2011)
6. Other Lease Provisions. The Lease is hereby further modified as
follows:
(a) Section 12 (Security Deposit) of the Lease is here by deleted.
The parties acknowledge that any Security Deposit that may have been required
under the Lease has been waived .
(b) Section 9 (Quiet Enjoyment) of the Lease is hereby modified to
insert the following in line 6 after the phrase "Term hereby demised" but
before the period: "against al persons claiming by, through or under Landlord."
(c) Exhibit "C" (Rules and Regulations) of the Lease is hereby
replaced with the Building Rules and Regulations attached hereto as Exhibit C.
(d) Section 13 (f) of the Lease is hereby modified to replace the
proviso set forth therein with the following: "; provided, however, that in the
event Tenant requests overtime air conditioning, Tenant will pay to Landlord
its regular charges for such additional heating or air conditioning." Such
regular charges as of the date of this Amendment (which are subject to change
without notice) are $30.00 per hour per HVAC zone, with a two hour minimum
usage.
(e) The parties acknowledge that there is no unused balance of the
Allowance referred to in Section 14 of the Lease.
(f) Notwithstanding any provision of the Lease to the contrary
(including, without limitation, Section 15 of the Lease) upon termination of
the Lease or expiration of the Term, Tenant will, at Tenant's sole expense,
remove from the Premises any safe or vault installed by Tenant, and restore
any damage to the Premises or Building caused by such installation or removal.
(g) The first grammatical paragraph of Section 17 (Parking) of the
Lease is hereby deleted and replaced with the following:
Provided that Tenant pays the charges contemplated
by this Section 17 when due, Landlord will initially
issue to Tenant, for use by Tenant and its employees and
visitors during the Term, up to 7 parking passes for
parking automobiles in the parking garage serving the
Building, which parking rights will include unlimited
"in and out" privileges. If at any time Tenant fails
(or elects not) to pay for the maximum number of parking
spaces to which it is entitled, Landlord may elect to
terminate Tenant's rights to those spaces for the
remainder of the Term. Of such 7 parking passes, 6 will
be for unreserved spaces and 1 will be for reserved
spaces. With respect to such unreserved spaces, Tenant
will not have the right to use any specific spaces, but
will have the right to park such number of automobiles
in the parking garage at market rates charged from time
to time by Landlord (or any licensee or lessee operating
the parking garage at the time) to tenants and other third
parties for unreserved parking privileges (plus applicable
sales taxes, governmental surcharges and the like). As of
the date of this Lease, the rate for unreserved parking
privileges is $75.00/month per space. With respect to such
reserved spaces, the location of such spaces will be
designated by Landlord, and Landlord will be entitled to
relocate such assigned parking space(s) at any time after
reasonable written notice (not less than 30 days). Tenant
will pay as additional rent for such reserved parking spaces
the market rates charged from time to time by Landlord (or
any licensee or lessee operating the parking garage at the
time) to tenants and other third parties for reserved parking
spaces (plus applicable sales taxes, governmental surcharges
and the like). As of the date of this Lease, the rate for
reserved parking spaces is $95.00/month per space. In addition,
Short term visitor parking will be available for the use of
guests of tenants of the Building (including Tenant's customers)
during the Term; as of the date of this Lease, the rate for
visitor parking is $1.00 per one-half hour or any part thereof,
with a maximum of $12.00 per day per space (which rate is subject
to increase from time to time). Landlord is under no obligation
to make available to Tenant parking privileges in excess of the
total number or ratio of parking passes set forth above. However,
if in Landlord's sole and absolute discretion Landlord (or any
licensee or lessee operating the parking garage at the time)
makes available to Tenant parking passes in excess of the number
or ratio set forth above, then such excess will be on a month-to-
month basis only. Short-term parking at the arrival level of
the Building will also be available for Tenant's short-term
banking customers throughout the Term; provided, however, that
at no time whatsoever shall any bank customer park at any such
space in excess of a reasonable amount of time.
(h) Subparagraphs (i) and (ii) of Section 29 (Insurance) of the
Lease are hereby replaced with the following:
(a) All risk property insurance (including extra expense
insurance) on all of Tenant's fixtures and personal property in the Premises,
all for the full replacement cost thereof. Landlord will be named as loss payee
as respects its interest in any such alterations, additions, or other
improvements.
(b) (intentionally omitted)
(c) Workers compensation and employers liability insurance.
Workers compensation insurance in statutory limits will be provided for all
employees. The employers liability insurance will afford limits not less than
$500,000.00 per accident, $500,000.00 per employee for bodily injury by disease,
and $500,000.00 policy limit for bodily injury by disease.
(d) Commercial general liability insurance which insures against
claims for bodily injury, personal injury, advertising injury, and property
damage based upon, involving, or arising out of the use, occupancy, or
maintenance of the Premises and the Building. Such insurance will afford, at
a minimum, the following limits:
Each Occurrence $1,000,000.00
General Aggregate 2,000,000.00
Products/Completed Operations Aggregate 2,000,000.00
Personal and Advertising Injury Liability 1,000,000.00
Fire Damage Legal Liability 50,000.00
Medical Payments 5,000.00
Any general aggregate limit will apply on a per-location basis.
Such insurance will name Landlord, its trustees and beneficiaries, Landlord's
mortgagees, Landlord's managing agent, Landlord's advisor, and their respective
officers, directors, agents and employees, as additional insureds (the "Required
Additional Insureds").
This coverage must include blanket contractual liability, broad form property
damage liability, and must contain an exception to any pollution exclusion
which insures damage or injury arising out of heat, smoke, or fumes from a
hostile fire. Such insurance must be written on an occurrence basis and
contain a standard separation of insureds provision.
(e) Business auto liability which insures against bodily injury
and property damage claims arising out of the ownership, maintenance, or use of
"any auto." A minimum of a $1,000,000.00 combined single limit per accident will
apply.
(f) Umbrella excess liability insurance, on an occurrence basis,
that applies excess of required commercial general liability, business auto
liability, and employers liability policies, which insures against bodily
injury, property damage, personal injury and advertising injury claims with
the following minimum limits:
Each Occurrence $5,000,000.00
Annual Aggregate 5,000,000.00
These limits must be in addition to and not including those stated for
underlying commercial general liability, business auto liability, and
employers liability insurance. Such policy must name the Required Additional
Insureds as additional insureds.
(g) General insurance requirements. All policies required to
be carried by Tenant hereunder must be issued by and binding upon an insurance
company licensed to do business in the state in which the property is located
with a rating of at least 'A-" "XII" or better as set forth in the most
current issue of Best's Key Rating Guide, unless otherwise approved by Landlord.
Tenant will not do or permit anything to be done that would invalidate the
insurance policies required.
Liability insurance maintained by Tenant will be primary coverage without right
of contribution by any similar insurance that may be maintained by Landlord.
Certificates of insurance, acceptable to Landlord, evidencing the existence and
amount of each liability insurance policy required and Evidence of Property
Insurance Form, Acord 27, evidencing property insurance as required will be
delivered to Landlord prior to the first day of the Extension Term and ten
days prior to each renewal date. Certificates of insurance will include an
endorsement for each policy showing that the Required Additional Insureds are
included as additional insureds on liability policies (except employer's
liability). The Evidence of Property Insurance Form will name Landlord as loss
payee for property insurance as respects Landlord's interest in improvements
and betterments. Further, the certificates must include an endorsement for each
policy whereby the insurer agrees not to cancel or non-renew the policy, or
reduce the coverage below the limits required in this Lease, without at least
30 days' prior notice to Landlord and Landlord's managing agent.
If Tenant fails to provide evidence of insurance required to be provided by
Tenant, prior to the first day of the Extension Term and thereafter during the
Term, within 10 days following Landlord's request thereof, and 10 days prior to
the expiration date of any such coverage, Landlord will be authorized (but not
required) to procure such coverage in the amount stated with all costs thereof
to be chargeable to Tenant and payable upon written invoice thereof.
The limits of insurance required as set forth above, or as carried by Tenant,
will not limit the liability of Tenant or relieve Tenant of any obligation
thereunder. Any deductibles selected by Tenant will be the sole responsibility
of Tenant.
Landlord may, at its sole discretion, change the insurance policy limits and
forms which are required to be provided by Tenant; such changes will be made
to conform with common insurance requirements for similar properties in similar
geographic locations. Landlord will not change required insurance limits or
forms more often than once per calendar year.
(i) Section 35 (Option to Renew) of the Lease is hereby deleted in
its entirety.
(j) Section 36 (Exclusive) of the Lease is hereby deleted.
(k) The reference in Section 34 of the Lease to Rule No. 1 will
hereafter refer to rule 3.3 of the Building Rules and Regulations attached
hereto as Exhibit C. The reference in Section 47 to the Lease to Rule No. 2
will hereafter refer to rule 3.2 of the Building Rules and Regulations
attached hereto as Exhibit C.
(l) Exhibit B (Work letter) to the Lease will not apply to this
Amendment or to the Extension Term.
7. Condition of Premises. During the Extension Term, Landlord is
leasing the Premises to Tenant "AS IS" and "With All Faults", without any
representations or warranties of any kind (including, without limitation, any
express or implied warranties of merchantability, fitness or habitability).
8. Authority. Landlord and Tenant each represent and warrant to the
other that this Amendment has been duly authorized, executed and delivered by
and on behalf of each party hereto and constitutes the valid and binding
agreement of Landlord and Tenant in accordance with the terms hereof.
9. Real Estate Brokers. Each party hereto hereby represents and
warrants to the other that in connection with this Amendment, the party so
representing and warranting has not dealt with any real estate broker, agent
or finder, except for Jones Lang LaSalle Americas, Inc. (the "Broker"), and,
to its knowledge no other broker initiated or participated in the negotiation
of this Amendment or is entitled to any commission in connection with this
Amendment. Each party hereto will indemnify the other against any inaccuracy
in such party's representation. Landlord hereby agrees that it will pay a
commission to the Broker according to a separate agreement.
10. Counterparts. This Amendment may be executed in any number of
counterparts and by each of the undersigned on separate counterparts, and each
such counterpart will be deemed to be an original, but all such counterparts
will together constitute but one and the same Amendment.
11. Radon. Radon is a naturally occurring radioactive gas that, when it
has accumulated in a building in sufficient quantities, may present health risks
to persons who are exposed to it over time. Levels of radon that exceed federal
and state guidelines have been found in buildings in Florida. Additional
information regarding radon and radon testing may be obtained from the county
public health unit.
12. Time of Essence. Time is of the essence of this Amendment.
13. No Offer. Submission of this instrument for examination or
negotiation will not bind Landlord, and no obligation on the part of Landlord
will arise until this Amendment is executed and delivered by both Landlord and
Tenant.
14. Entire Agreement. This Amendment and the Lease contain all the
terms, covenants, conditions and agreements between Landlord and Tenant
relating to the matters provided for in this instrument. No prior or other
agreement or understanding pertaining to such matters other than the Lease
will be valid or of any force or effect.
15. Limitation on Liability. The liability of Landlord to Tenant under
the Lease and this Amendment will be limited to the interest of Landlord in the
Building and surrounding property, and Tenant agrees to look solely to
Landlord's interest in the Building and the surrounding property for the
recovery of any judgment from the Landlord, it being intended that Landlord
will not be personally liable for any judgment of deficiency.
16. Lease in Full Force and Effect. As modified hereby, the Lease and
all of the terms and provision thereof remain in full force and effect.
WITNESSES:
_________________________ TENANT: COMMERCIAL BANK OF
Name:____________________ FLORIDA
_________________________ By:__________________________
Name:____________________ Name:________________________
Title:_______________________
WITNESSES: LANDLORD: FBEC - BRICKELL KEY
CENTRE, L.P.
_________________________
Name:____________________ By: Brickell Key Centre - FBEC, L.L.C.,
its general partner
_________________________
Name:____________________ By:__________________________
Name:________________________
Title:_______________________
EXHIBIT 10.15
AGREEMENT FOR ITEM PROCESSING SERVICES
THIS AGREEMENT FOR ITEM PROCESSING SERVICES ("Agreement") is between
ELECTRONIC DATA SYSTEMS CORPORATION ("EDS"), a Delaware corporation with an
address at 5400 Legacy Drive, Plano, Texas 75024, EDS Information Services
L.L.C., ("EIS") a Delaware limited liability company with an address at 5400
Legacy Drive, Plano, Texas 75024, (all references to EDS in this Agreement
will be deemed to include EIS) and COMMERCIAL BANK OF FLORIDA ("Customer" or
the "Bank"), a Florida State Chartered Bank with an address at 1550 SW 57th
Avenue, Miami, Florida, 33144-5722.
WHEREAS, The Bank desires to purchase certain item processing services
from EDS itself and through various of EDS' indirect, wholly-owned, United
States-based subsidiaries, including EIS.
NOW, THEREFORE, The Bank and EDS hereby agree as follows:
ARTICLE I - DEFINITIONS
1.1 Definitions. In this Agreement:
-----------
(a) "Business Day" is each weekday, Monday through Friday, which is not
a holiday of the federal reserve banks.
(b) "Conversion Services" are the services described in Section 3.1 (b).
(c) "CPI" is the Consumer Price Index for All Urban Consumers, U.S. City
Average, for All Items (1982-1984 = 100) as published by the Bureau
of Labor Statistics of the U.S. Department of Labor. If the Bureau
of Labor Statistics stops publishing the CPI, the parties will
substitute another comparable measure published by a mutually
agreeable source. However, if such change is merely to redefine
the base period for the CPI from 1982-1984 to some other period,
the parties will continue to use the CPI but will, if necessary,
convert the two CPI's being compared to the same basis by multiplying
one of them by the appropriate conversion factor.
(d) "Data Center" is the space at one or more locations where EDS
performs services.
(e) "EDS Systems" are all Systems, except for Systems provided by
Customer, used by EDS to provide the services, including without
limitation any improvements, modifications or enhancements made by
EDS to any System and provided to Customer under this Agreement.
(f) "Effective Date" is the date that this Agreement is executed by EDS
pursuant to Section 9.10.
(g) "Implementation Date" is the date on which EDS begins processing
Customer's Items. Implementation Date in this case, as EDS is
already processing the Bank's work, is defined as March 31, 2000,
at which time the terms and pricing will be effective.
(h) "Initial Term" is defined in Section 2.1.
(i) "Item" is a document or other segment of media on which is recorded
information evidencing a withdrawal from or draft against (i) a
demand deposit, negotiable order of withdrawal, or other checking
account offered by Customer to its customers, or (ii) an internal
Customer general ledger account.
(j) "Item Processing Services" are the services described in Schedule A.
(k) "Renewal Terms" is defined in Section 2.1.
(l) "Service" or "Services" are all of the services to be provided by
EDS under this Agreement, which include the Item Processing Services,
Conversion Services and Special Services.
(m) "Special Services" are the services described in Section 3.1 (c).
(n) "System" or "Systems" are (i) computer programs, including without
limitation software, firmware, application programs, operating
systems, files, and utilities; (ii) supporting documentation for
such computer programs, including without limitation input and
output formats, program listings, narrative descriptions, operating
instructions and procedures, user and training documentation, special
forms, and source code; and (iii) the tangible media upon which such
programs are recorded, including without limitation chips, tapes,
disks and diskettes.
ARTICLE II - TERM
2.1 Term. This Agreement will begin on the Effective Date and, unless
terminated earlier under Section 7.3, 7.4, 7.5, 7.6, 7.7 or 9.5, will
continue for a period of Five (5) years from the Implementation Date
(the "Term").
ARTICLE III - EDS RESPONSIBILITIES
3.1 Services Provided. EDS will provide Customer with the following Services:
-----------------
(a) Item Processing Services. EDS will provide to Customer, and Customer
will purchase from EDS, Customer's total requirements for Item
Processing Services.
(b) Conversion Services. On a mutually agreeable schedule EDS will
provide those services and instructions ("Conversion Services")
reasonably required for Customer to convert to and use the Item
Processing Services. Customer will cooperate in the conversion
effort and timely provide whatever information, data, clerical
and office support, management decisions, approvals and signoffs
that EDS reasonably requires.
(c) Special Services. EDS will provide to Customer such special services
as Customer may reasonably request in writing ("Special Services")
during the term of this Agreement.
3.2 General Terms Relating to Services.
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(a) EDS will be responsible for the Items from the time that such Items
are received by EDS at the Data Center until the Items are released
for pickup at the Data Center to couriers; provided that EDS'
liability for the destruction or disappearance of Items will be
limited to cases where the destruction or disappearance is due
entirely to the negligence or willful misconduct of EDS and, if so,
EDS' sole obligation is to reconstruct the Items from microfilm
created by Customer.
(b) EDS will establish, modify or substitute from time to time any
equipment, processing priorities, programs or procedures used in
the operation of the EDS Systems or the provision of the Services
that EDS reasonably deems necessary, and notify Customer of any
such changes that will affect Customer's operations.
(c) With the cooperation of Customer, EDS will develop, maintain and,
as necessary in the event of a disaster, execute a disaster recovery
plan for the Data Center. EDS will provide Customer and its auditors
and inspectors with access to a summary of such disaster recovery
plan at all reasonable times.
(d) All times indicated in this Agreement refer to the time zone in
which the Data Center is located.
3.3 Audits. EDS will provide auditors and inspectors that Customer designates
in writing with reasonable access to the Data Center for the limited
purpose of performing audits or inspections of Customer's business. EDS
will provide to such auditors and inspectors audit assistance as a
Special Service. EDS will not be required to provide access to data of
other EDS customers.
3.4 Regulatory Compliance. If either EDS or Customer becomes aware of any
changes or proposed changes to any statutes, regulations or rules
applicable to the Services, that party will promptly notify the other
of the change or proposed change, and the parties will cooperate in
analyzing the impact, if any, that the change or proposed change will
have on the obligations of the parties under this Agreement. If any such
change requires EDS to modify any Services, EDS will comply with such
change and Customer will reimburse EDS for (a) any additional costs
thereby incurred by EDS that are specific to Customer (such as the cost
of retaining Customer's data for a longer period of time), and (b)
Customer's pro rata share (based on such method of proration as EDS in
good faith determines to be appropriate) of any additional costs thereby
incurred by EDS that are not specific to Customer (such as the cost of
modifications to the EDS Systems that apply to Customer and to other EDS
customers for item processing services) and that are in excess of the
costs that EDS would customarily absorb as part of its normal services
to its customers for item processing services, as reasonably determined
by EDS.
3.5 Annual Report and EDP Audit. Upon request, EDS will provide at no charge
one copy of EDS' most recent annual report to Customer. Upon request, EDS
will also provide to Customer one copy of EDS' most recent independent
Data Center EDP audit, if any, at EDS' then standard charge for such copy.
ARTICLE IV - PAYMENTS TO EDS
4.1 Service Charges. Customer will pay EDS for the Services as follows:
(a) For Item Processing Services, the monthly charges listed in Schedule
C.
(b) For Special Services, EDS' then standard charges for such Services,
or, if EDS then has no standard charges for such Services, upon
whatever other basis that the parties agree.
4.2 Additional Charges. Customer will also pay EDS the following, if
applicable:
(a) All costs incurred by EDS (i) in mailing reports or other output to
Customer, its customers, or third parties, and (ii) in transporting,
shipping, or delivering Items, reports, output, or input to and from
the Data Center, including without limitation telecommunication
usage.
(b) All out-of-pocket costs and expenses, including, without limitation,
travel and travel-related expenses, which are incurred by EDS in
providing Services when incurred at Customer's request.
(c) Any other charges expressly provided in this Agreement.
(d) All taxes, however designated or levied, based upon any charges
under this Agreement, or upon this Agreement or the Systems,
Services or materials provided hereunder, or their use, including
without limitation state and local privilege or excise taxes based
on gross revenue, sales and use taxes, and any taxes or amounts in
lieu thereof paid or payable by EDS in respect of the foregoing,
exclusive, however, of franchise taxes and taxes based on the net
income of EDS.
4.3 Time of Payment. All charges under this Agreement will be due and payable
within thirty (30) days of invoice date. Any charges not paid within
thirty (30) days of invoice date will bear interest until paid at a rate
equal to the lesser of one percent (1%) per month. Customer authorizes
EDS to collect charges for Services through applicable clearing house
procedures.
4.4 Cost of Living Adjustment. Except as provided below, and no more than
once in any twelve month period, EDS may, at its option and by giving
Customer written notice, increase the charges for Services by a percentage
not to exceed the lesser of:
(a) The percentage by which the CPI as of that time is higher than the
CPI as of (i) for the first adjustment, the earlier of the Effective
Date or the date of the last adjustment previously made pursuant to
any immediately prior agreement, if any, under which EDS provided
the same or similar Services to Customer, and (ii) thereafter, the
previous time that EDS adjusted its charges to Customer pursuant to
this Section. These increased charges will remain in effect until
EDS adjusts them again pursuant to this Section; or
(b) Five Percent.
These increased charges will remain in effect until EDS adjusts them
again pursuant to this section.
ARTICLE V - CUSTOMER RESPONSIBILITIES
5.1 Customer Obligations. In order for EDS to provide the Services, Customer
shall perform its obligations under this Agreement, including without
limitation Schedule B.
ARTICLE VI - SYSTEMS, DATA AND CONFIDENTIALITY
6.1 EDS Systems. All EDS Systems are and will remain the exclusive property
of EDS or licensors of such EDS Systems, as applicable, and, except as
expressly provided in this Agreement, Customer will have no ownership
interest or other rights in any EDS System. Customer acknowledges that
the EDS Systems include EDS proprietary information and agrees to keep
any information disclosed to Customer about the EDS Systems confidential
at all times. Upon the expiration or termination of this Agreement,
Customer will return all copies of all items relating to the EDS Systems
which are in the possession of Customer and certify to EDS in writing
that Customer has retained no material relating to the EDS Systems.
6.2 Customer's Information. Information relating to Customer or its customers
contained in Customer's data files is the exclusive property of Customer
and EDS will only be the custodian of that information. EDS agrees to
hold in confidence all proprietary information of Customer and its
customers provided to EDS. However, upon the request of any appropriate
federal or state regulatory authority with jurisdiction over Customer's
business and after EDS has, when reasonably possible, notified Customer
of such request, EDS will allow such authority access to all records and
other information of Customer and its customers in the possession of EDS
and provide as a Special Service any related assistance that is required.
Promptly after the termination or expiration of this Agreement and the
payment to EDS of all sums due and owing, including without limitation
any amounts due under Sections or, EDS will, at Customer's request and
expense, return to Customer all of Customer's information, data and
files in EDS' then standard machine-readable format and media.
6.3 Confidentiality. Except as otherwise provided in this Agreement, EDS and
Customer each agree that all information communicated to one by the other
or the other's affiliates, whether before or after the Effective Date,
will be received in strict confidence, will be used only for purposes of
this Agreement will not be disclosed by the recipient party, its agents,
subcontractors or employees without the prior written consent of the other
party. Each party agrees to take all reasonable precautions to prevent
the disclosure to outside parties of such information, including, without
limitation, the terms of this Agreement, except as required by legal,
accounting or regulatory requirements beyond the reasonable control of
the recipient party. The provisions of this Section will survive the
expiration or termination of this Agreement for any reason.
6.4 Safeguarding Data Integrity. EDS will maintain internal computer data
integrity safeguards (such as access codes and passwords) to protect
against the accidental or unauthorized deletion or alteration of
Customer's data in the possession of EDS. EDS will provide additional
internal computer data integrity safeguards that Customer reasonably
requests as a Special Service. EDS will also employ and maintain
controlled access systems in the Data Center.
ARTICLE VII - TERMINATION AND RELATED MATTERS
7.1 Performance Review. A designated representative of EDS and a designated
representative of the Bank will meet as often as reasonably requested by
either party to review the performance of EDS or the Bank under this
Agreement. Written minutes of such meetings may be kept. In the event
of any dispute, controversy, or claim between the parties arising from or
relating to this Agreement (a "dispute"), then, upon the written request
of either party, each of the parties shall appoint a designated officer
to meet and negotiate in good faith to resolve such Dispute. Formal
proceedings for the arbitration of such dispute in accordance with
Section 7.2 may not be commenced until the earlier of (a) the expiration
of thirty days after the initial request for such negotiations, or (b)
either of the designated officers concluding in good faith and notifying
the other designated officer that amicable resolution through continued
negotiation of the matter in issue does not appear likely.
7.2 Arbitration. EDS and the Bank stipulate and agree that if they are unable
to resolve any dispute as contemplated by section 7.1, then such dispute
will be resolved by final and binding arbitration by a panel of three
arbitrators (the "Arbitration Panel") in accordance with and subject to
the Commercial Arbitration Rules of the American Arbitration Association
("AAA") then if effect. Following notice of a party's election to require
arbitration, each party will within thirty days select one arbitrator, and
those two arbitrators will within thirty days thereafter select a third
arbitrator. If the two arbitrators are unable to agree on a third
arbitrator within thirty days, the AAA will within thirty days thereafter
select such third arbitrator. Discovery as permitted by the Federal Rules
of Civil Procedure then if effect will be allowed in connection with
arbitration to the extent consistent with the purpose of the arbitration
and as allowed by the Arbitration Panel. Judgment upon the award rendered
in any arbitration may be entered in any court of competent jurisdiction,
or application may be made to such court for a judicial acceptance of the
award and an enforcement, as the law of the state having jurisdiction may
require or allow. Unless (a) EDS has commenced a proceeding or has
presented a claim pursuant to this Section for nonpayment of amounts due
under this Agreement by Customer, and the Customer has not promptly paid
all amounts in dispute into the escrow account referred to below, or (b)
this agreement has been terminated in accordance with this Article VII,
EDS will continue to provide the Services during any arbitration
proceedings commenced pursuant to this Section 7.2, and Customer will
continue to perform its obligations (including the making of payments
to EDS) in accordance with this agreement. Up to the maximum amount in
dispute, any disputed payment will be paid pending rendition of the award
by the Arbitration Panel into an escrow account that is structured by
agreement of the parties, or if agreement cannot be reached, as directed
the Arbitration Panel, Any such escrow account will provide for the
payment of interest on the amounts deposited therein, and the Arbitration
Panel will make the determination regarding distribution of such deposited
amounts plus interest.
7.3 Termination for Non-Payment. If Customer defaults in the payment of any
charges or other amounts due under this Agreement and fails to cure such
default within ten (10) days after receiving written notice specifying
such default, then EDS may, by giving Customer at least thirty (30) days
prior written notice thereof, terminate this Agreement as of a date
specified in such notice.
7.4 Termination for Cause. If either party materially defaults in its
performance under this Agreement, except for non-payment of amounts due
to EDS, and fails to either substantially cure such default within ninety
(90) days after receiving written notice specifying the default or, for
those defaults which cannot reasonably be cured within ninety (90) days,
promptly commence curing such default and thereafter proceed with all due
diligence to substantially cure the default, then the party not in default
may, by giving the defaulting party at least thirty (30) days prior
written notice thereof, terminate this Agreement as of a date specified
in such notice.
7.5 Termination for Insolvency. If Customer becomes or is declared insolvent
or bankrupt, is the subject of any proceedings relating to its liquidation
or insolvency or for the appointment of a receiver, conservator or similar
officer, or makes an assignment for the benefit of all or substantially
all of its creditors or enters into any agreement for the composition,
extension, or readjustment of all or substantially all of its obligations,
then EDS may, by giving Customer prior written notice thereof, terminate
this Agreement as of a date specified in such notice.
7.6 Termination Due to Acquisition. If fifty percent or more of the stock or
assets of the Bank are acquired by another person or entity, whether by
merger, reorganization, sale, transfer, or other similar transaction,
EDS and the Bank will negotiate in good faith the terms and conditions
upon which this agreement may be modified to accommodate such transaction.
If the parties are unable to agree upon such modification, either party
upon written notice to the other may terminate this agreement upon the
consummation of such acquisition or on a mutually agreeable date
thereafter.
7.7 Termination by Commercial Bank of Florida for EDS' failure to provide
Image Processing Services. EDS and Commercial Bank of Florida have
entered this agreement with the understanding that if any time during
the term of this agreement Commercial Bank of Florida requires image
processing services for their item processing functions listed on the
schedule of services, EDS will provide those image services within 180
days of a written request from the Bank. The Bank agrees to negotiate
in good faith the prices for those services required by the Bank and
provided by EDS, and any conversion or hardware or software purchases
which would be required by EDS to provide the requested services. In
the event that EDS and Commercial Bank of Florida cannot agree on
pricing and conversion charges for the required services, or if EDS is
not able to provide the image services required by the Bank within the
required timeframe of 180 days after the Bank provides EDS with written
notice as provided above, the Bank may terminate this agreement under
section 7.8 below.
7.8 Payment Upon Termination. The parties acknowledge that upon termination
of this Agreement for any reason, including under Section 7.3, 7.4, 7.5
or 7.6 (but excluding by election by either party not to renew pursuant
to Section 2.1 or termination by Customer pursuant to Section 7.4 or
9.5), EDS will incur damages resulting from such termination that will
be difficult or impossible to ascertain. Therefore, prior to such
termination and in addition to all other amounts then due and owing to
EDS, Customer will pay to EDS as reasonable liquidated damages an amount
equal to the sum of subsections (a) and (b) and (c). If Commercial Bank
of Florida terminates this agreement under section 7.7 above, only an
amount equal to the sum of subsections 7.8 (a) and 7.8 (c) apply.
(a) All costs reasonably incurred by EDS in connection with such
termination, including without limitation telecommunication line
disengagement expenses and costs of terminating leases on or
shipping or storing any equipment provided to Customer by or
through EDS under this Agreement, plus a twenty percent (20%)
management fee on such costs, plus EDS' charges for any Special
Services reasonably requested by Customer for deconversion
assistance (together, the "Termination Costs").
(b) Twenty-five percent (25%) of the total compensation which would
have been paid or reimbursed to EDS under this Agreement during
the remainder of its term. The amount of total compensation will
be computed by multiplying the total number of months remaining in
the Initial Term or the Renewal Term then in effect from the
effective date of the termination by the average monthly charge to
Customer for Services under this Agreement during the twelve (12)
calendar months immediately preceding the calendar month in which
notice of termination was given, and multiplying that number by
twenty-five percent (25%). This is expressed mathematically as
follows: Number of months remaining in term times average monthly
charge for Services during the twelve (12) months preceding notice
of termination times twenty-five percent (25%). If this Agreement
has been in effect less than twelve (12) calendar months prior to
the giving of the notice of termination, then the parties will
compute the amount due under this Section (b) using the average
monthly charge for Services made during such lesser number of
calendar months. If termination of this Agreement occurs prior to
the Implementation Date, then the parties will compute the amount
due under this Section (b) assuming that the Implementation Date
had occurred when scheduled by EDS and using the average monthly
charges reasonably estimated to be paid by Customer.
(c) The pricing for item processing and back room services in this
contract is tiered so as to provide Commercial Bank of Florida
incremental steps up to the new level of pricing from their
previous contract. Therefore, if the contract is terminated prior
to the end of the term of this contract, an additional amount equal
to the differential between the total amount paid by the Bank from
the start of this contract to the date of termination of services,
and the total amount which would have been paid by the Bank from
the start of this contract to the date of termination of services
if the services had been delivered under the "Benchmark Services
Pricing" (see schedule D) listed in the attached price schedules.
EDS and the Bank will mutually agree on the calculation of this
amount should the contract be terminated by the Bank.
All amounts payable under this Section will be invoiced and paid
prior to the effective date of such termination.
7.9 Payment Upon Nonrenewal. If Customer gives or receives notice not to
renew this Agreement pursuant to Section 2.1, or Customer terminates
this Agreement under Section 9.5, Customer will pay to EDS an amount
equal to all amounts then due and payable to EDS, plus (a) EDS' charges
for any Special Services reasonably requested by Customer for
deconversion assistance, and (b) all other costs reasonably incurred by
EDS in connection with such election not to renew or termination that are
described in Section (a) and that relate to obligations that Customer
approved, which extend beyond the then current term of this Agreement or
earlier termination date under Section. All amounts payable under this
Section will be invoiced and paid prior to the expiration or termination
date.
ARTICLE VIII - LIABILITY AND INDEMNITY
8.1 Limitation of Liability.
Section 3.2(a) sets forth Customer's exclusive remedy for the destruction
or disappearance of Items that occurs while such Items are being held at
the Data Center. If EDS becomes liable to Customer under this Agreement
for any other reason, whether arising by negligence, willful misconduct
or otherwise, then (i) the damages recoverable against EDS for all
events, acts, delays, or omissions will not exceed in the aggregate the
compensation payable to EDS pursuant to Section 4.1 of this Agreement for
the lesser of the months that have elapsed since the Implementation Date
or the three (3) months ending with the latest month in which occurred
the events, acts, delays or omissions for which damages are claimed, and
(ii) the measure of damages will not include any amounts for indirect,
consequential or punitive damages of any party, including third parties,
or damages which could have been avoided had the output provided by EDS
been verified before use. Customer may not assert any cause of action
against EDS of which Customer knew or should have known more than two
years prior to such assertion. In connection with the conduct of any
litigation with third parties relating to any liability of EDS to Customer
or to such third parties, EDS will have all rights which are appropriate
to its potential responsibilities or liabilities. EDS will have the right
to participate in all such litigation and to settle or compromise its
liability to third parties.
8.2 Warranty. EDS represents and warrants that all services will be performed
in a professional and workmanlike manner. EXCEPT AS EXPRESSLY PROVIDED IN
THIS SECTION 8.2, EDS DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
IN FACT OR BY OPERATION OF LAW OR OTHERWISE, CONTAINED IN OR DERIVED FROM
THIS AGREEMENT, ANY OF THE SCHEDULES ATTACHED HERETO, ANY OTHER DOCUMENTS
REFERENCED HEREIN, OR IN ANY OTHER MATERIALS, PRESENTATIONS OR OTHER
DOCUMENTS OR COMMUNICATIONS WHETHER ORAL OR WRITTEN, INCLUDING WITHOUT
LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
8.3 Force Majeure. Each party will be excused from performance under this
Agreement, except for any payment obligations for Services that have been
or are being performed hereunder, for any period and to the extent that
it is prevented from performing, in whole or in part, as a result of
delays caused by the other party or any act of God, war, civil
disturbance, court order, labor dispute, third party nonperformance or
other cause beyond its reasonable control, including failures,
fluctuations or nonavailability of electrical power, heat, light, air
conditioning or telecommunications equipment. Such nonperformance will
not be a default or a ground for termination as long as reasonable means
are taken to expeditiously remedy the problem causing such nonperformance.
8.4 Cross Indemnity. EDS and Customer each will indemnify, defend and hold
harmless the other from any and all claims, actions, damages, liabilities,
costs and expenses, including without limitation reasonable attorney's
fees and expenses, arising out of (a) the death or bodily injury of any
agent, employee, customer or business invitee of the indemnitor, and (b)
the damage, loss or destruction of any property of the indemnitor.
8.5 Patent Indemnity. EDS and Customer each will indemnify, defend and hold
harmless the other from any and all claims, actions, damages, liabilities,
costs and expenses, including without limitation reasonable attorney's
fees and expenses, arising out of any claims of infringement by the
indemnitor of any United States letters patent, any trade secret, or any
copyright, trademark, service mark, trade name or similar proprietary
rights conferred by common law or by any law of the United States or any
state alleged to have occurred because of Systems provided or work
performed by the indemnitor. However, this indemnity will not apply
unless the indemnitee informs the indemnitor as soon as practicable of
any claim or action alleging such infringement and has given the
indemnitor full opportunity to control the response thereto and the
defense thereof, including, without limitation, any agreement relating
to settlement.
8.6 Reliance on Instructions. EDS is entitled to rely upon and act in
accordance with any instructions, guidelines or information provided to
EDS by Customer, which are given by persons having actual or apparent
authority to provide such instructions, guidelines or information, and
will incur no liability in doing so. Customer will indemnify, defend and
hold harmless EDS from any and all claims, actions, damages, liabilities,
costs and expenses, including without limitation reasonable attorneys'
fees and expenses, arising out of or resulting from EDS acting in
accordance with this Agreement.
ARTICLE IX - MISCELLANEOUS
9.1 Binding Nature and Assignment. This Agreement will be binding on the
parties and their respective successors and assigns. Neither party may
assign this Agreement unless it obtains the prior written consent of the
other party (except that EDS will have the right to perform the Services
itself and through various of its indirect, wholly-owned, United States-
based subsidiaries and to subcontract to unaffiliated third parties
portions of the Services, so long as EDS remains responsible for the
obligations performed by any of its subsidiaries and subcontractors to
the same extent as if such obligations were performed by EDS employees),
which consent will not be unreasonably withheld. The following
transactions relating to either party will not require approval of the
other party under this Section: any merger (including without limitation
a reincorporation merger), consolidation, reorganization, stock exchange,
sale of stock or substantially all of the assets, or other similar or
related transaction in which such party is the surviving entity or, if
such party is not the surviving entity, the surviving entity continues
to conduct the business conducted by such party prior to consummation of
the transaction.
9.2 Hiring of Employees. During the term of this Agreement and for a period
of twelve (12) months thereafter, neither party will, without the prior
written consent of the other, offer employment to or employ any person
employed then or within the preceding twelve (12) months by the other
party, if the person was involved in providing or receiving Services.
9.3 Notices. Any notice under this Agreement will be deemed to be given when
delivered by hand or when mailed by United States mail, first class
postage prepaid, and addressed to the recipient party at its address set
forth above and to the attention of its President in the case of Customer
and to the attention of Division President, Financial Services Division
in the case of EDS. Either party may from time to time change its address
for notification purposes, by giving the other prior written notice of
the new address and the date upon which it will become effective.
9.4 Relationship of Parties. EDS, in providing Services, is acting as an
independent contractor and does not undertake by this Agreement or
otherwise to perform any regulatory or contractual obligation of Customer.
EDS has the sole right and obligation to supervise, manage, contract,
direct, procure, perform or cause to be performed all work to be
performed by EDS under this Agreement.
9.5 Modification. EDS may from time to time modify any of the provisions of
this Agreement to be effective at any time on or after the expiration of
the Initial Term by giving Customer at least three (3) months prior
written notice describing the modification and the date upon which it
will be effective (the "Modification Date"). If EDS gives Customer
notice of a modification pursuant to this Section, then Customer may,
by giving EDS written notice at least two (2) months prior to the
Modification Date, terminate this Agreement as of such Modification
Date or at a specified later date. Unless Customer provides such notice,
the modification will be effective for any period after the Modification
Date.
9.6 Waiver. A waiver by either of the parties of any of the covenants,
conditions, or agreements to be performed by the other or any breach
thereof will not be construed to be a waiver of any succeeding breach
or of any other covenant, condition or agreement contained in this
Agreement.
9.7 Media Releases. All media releases, public announcements and public
disclosures by Customer or Customer's employees or agents relating to
this Agreement or the subject matter of this Agreement, including without
limitation promotional or marketing material, but not including any
announcement intended solely for internal distribution by Customer or any
disclosure required by legal, accounting or regulatory requirements beyond
the reasonable control of Customer, will be coordinated with and approved
by EDS prior to release.
9.8 Entire Agreement. This Agreement and all attached Schedules constitute
the entire agreement between EDS and Customer with respect to the subject
matter of this Agreement. There are no understandings or agreements
relative to this Agreement which are not fully expressed herein and no
change, waiver or discharge of this Agreement will be valid unless in
writing and executed by the party against whom such change, waiver or
discharge is sought to be enforced. This Agreement may be amended only
by an amendment in writing, signed by the parties.
9.9 Severability. If any provision of this Agreement (or any portion thereof)
shall be invalid, illegal or unenforceable, the validity, legality, or
enforceability of the remainder of this Agreement shall not in any way be
affected or impaired thereby.
9.10 Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the State of Texas, without giving effect to
any choice-of-law rules.
9.11 Execution of Agreement. Three original copies of this Agreement will be
executed and submitted to EDS by Customer. This Agreement will become
effective when EDS executes this Agreement. EDS will return one of the
executed copies to Customer. By executing this Agreement, Customer
represents that this Agreement has been duly authorized and constitutes
a valid, fully enforceable and legally binding obligation of Customer.
Customer will maintain this Agreement as an official record of Customer
continuously from the time of its execution.
IN WITNESS WHEREOF, EDS and Customer each have caused this Agreement to be
signed and delivered by its duly authorized representative.
ELECTRONIC DATA SYSTEMS COMMERCIAL BANK OF FLORIDA
CORPORATION A FLORIDA STATE BANK
By: _________________________ By: __________________________
Printed Printed
Name: _______________________ Name: ________________________
Title: _______________________ Title: ________________________
Date: _______________________ Date: ________________________
AMENDMENT
THIS AMENDMENT ("Amendment") to that certain Agreement For INFORMATION
TECHNOLOGY SERVICES ("Agreement") between ELECTRONIC DATA SYSTEMS CORPORATION
("EDS") and COMMERCIAL BANK OF FLORIDA ("Customer"), dated as of November 14,
1994, is made and entered into by and between Customer and EDS.
The parties agree to amend the Agreement as follows:
1. Section 2.1 of the Agreement is amended to read as follows:
"The initial term of this Agreement will begin on the Effective Date and,
unless terminated earlier under Section 7.3, 7.4, 7.5, 7.6 or 9.5, will
continue in effect through March 31, 2000 (the "Initial Term"). Thereafter,
this Agreement will automatically renew for successive terms of five (5)
years each (the "Renewal Terms") unless either party gives the other party
written notice at least six (6) months prior to the expiration date of the
Initial Term or the Renewal Term then in effect that the Agreement will not
be renewed beyond such term."
2. Schedules A, B, C, D and E of the Agreement are hereby deleted in their
entirety and replaced with Schedules A, B, C, D, and E dated August 1999
which are attached hereto and, by this reference, made an integral part
of this Amendment. The following amendments and modifications to the
Agreement are also hereby deleted in their entirety: (i) the Safe Deposit
Box Amendment dated as of October 28, 1997; (ii) Section 2 of Exhibit A of
the Settlement Agreement and Addendum dated as of April 30, 1996; (iii)
the High Speed Connectivity Amendment dated as of December 31, 1998; and
(iv) the OMS Amendment dated as of April 1, 1999.
Without limiting the provisions of Section 4.4 of the Agreement in any way,
the pricing contained in Schedule C attached hereto shall be valid for the
period beginning April 1, 2000, and shall continue in effect through March
31, 2005.
3. Section 3.2(g) of the Agreement is amended to read as follows:
"With respect to Year 2000, as part of the Services, EDS will use
commercially reasonable efforts (a) with respect to EDS Systems which are
proprietary to EDS, to provide those improvements and enhancements to such
Systems so that they will maintain the functionality existing as of the
Effective Date taking into account any processing, accepting, calculating,
writing and outputting of times or dates, or both, whether before, on or
after 12:00 a.m. January 1, 2000, and any time periods determined or to be
determined based on any such times or dates, or both, and (b) with respect
to EDS Systems which are not proprietary to EDS, to obtain from the third
party vendor thereof, those improvements and enhancements to such Systems
so that they will maintain the functionality existing as of the Effective
Date taking into account any processing, accepting, calculating, writing
and outputting of times or dates, or both, whether before, on or after
12:00 a.m. January 1, 2000, and any time periods determined or to be
determined based on any such times or dates, or both. Customer acknowledges
and agrees that EDS will not be responsible for (i) changes, modifications,
updates or enhancements to, and any inaccuracies, delays, interruptions or
errors caused by, interfaces between the EDS Systems and any software or
systems which EDS does not operate or maintain as part of the Services,
(ii) any inaccuracies, delays, interruptions or errors occurring as a
result of incorrect data or data from other systems, software, hardware,
processes or third parties provided in a format that is inconsistent with
the format and protocols established for EDS Systems including date data
in two (2) digit format, even if such data is required for the operation
of the EDS proprietary software or systems, and (iii) an inaccuracies,
delays, interruptions or errors occurring as a result of incorrect data
or data from telecommunication hardware or systems."
4. Section 3.4 is modified to read as follows:
"Regulatory Compliance. EDS will use commercially reasonable efforts to
maintain the EDS Systems so that they will not be disapproved by any
federal or state regulatory authority with jurisdiction over Customer's
business. If Customer believes that any modifications to the EDS Systems
are required under any laws, rules, or regulations, Customer will promptly
so inform EDS. EDS will perform any modifications to the EDS Systems or
recommend changes to operating procedures of Customer that EDS determines
are necessary or desirable; provided, that if any such changes or
modifications result in a significant increase in EDS' cost of providing
Services, EDS will be entitled to increase the charges under this
Agreement by an amount that reflects a pro rata allocation of EDS'
increased cost among the applicable EDS customers. New or enhanced EDS
System features, functions, reports, or other Services that may result
from such modifications or recommendations may be provided as an Additional
Service. Notwithstanding the foregoing, Customer acknowledges that the EDS
Systems may, from time to time, consist in part of System(s) licensed by
EDS from third-party vendor(s) and, therefore, EDS shall have no duty or
responsibility to modify any such third-party System under this Section,
except to the extent that the vendor thereof has such a duty or
responsibility to modify such System pursuant to the applicable license
agreement between EDS and such vendor."
5. Subsection 7.7 (a) is deleted in its entirety and replaced as follows:
(a) All costs reasonably incurred by EDS in connection with such
termination, including without limitation telecommunication line
disengagement expenses and costs of terminating leases on or shipping or
storing any Equipment provided to Customer by or through EDS under this
Agreement, plus a twenty (20%) percent management fee on such costs, plus
EDS' charges for any Additional Services reasonably requested by Customer
for deconversion assistance and EDS' then standard charges for the
resources utilized to prepare any test or conversion tapes (together, the
"Termination Costs"). EDS may, at its option, invoice Customer for the
lesser of (i) EDS' good faith estimate of the Termination Costs, or (ii)
the aggregate of the charges payable to EDS pursuant to Article IV for
the two calendar months preceding the month in which notice of termination
is given. If the actual Termination Costs are greater or less than the
amount of EDS' invoice that is paid by Customer under the immediately
preceding sentence, then Customer will pay EDS, or EDS will refund to
Customer, as the case may be, the difference between the actual Termination
Costs and the amount paid.
6. Subsection 7.7(b) is deleted in its entirety and replaced as follows:
(b) Twenty Five percent (25%) of the total compensation which would have
been paid or reimbursed to EDS under this Agreement during the remainder
of its term. The amount of total compensation will be computed by
multiplying the total number of months remaining in the Initial Term or
the Renewal Term then in effect from the effective date of the termination
by the average monthly charge to Customer for Services under this Agreement
during the twelve (12) calendar months immediately preceding the calendar
month in which notice of termination was given, and multiplying that
number by twenty five percent (25%). This is expressed mathematically as
follows: Number of months remaining in term x average monthly charge for
Services during the twelve (12) months preceding notice of termination x
twenty five percent (25%).
7. Except as modified by this Amendment, the Agreement will be and remain in
full force and effect in accordance with its terms. Capitalized terms used
in this Amendment will be as defined in the Agreement unless otherwise
expressly defined in this Amendment.
8. Four (4) original copies of this Amendment will be executed and submitted
to EDS by Customer. This Amendment will become effective on the date that
EDS executes this Amendment. EDS will return one (1) of the executed
copies to Customer.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date(s)
set forth below.
ELECTRONIC DATA SYSTEMS COMMERCIAL BANK OF FLORIDA
CORPORATION
By: _______________________ BY: _______________________
Printed Printed
Name: _____________________ Name: _____________________
Title: ____________________ Title: ____________________
Date: _____________________ Date: _____________________
Exhibit 23.1
Consent of Independent Certified Public Accountants
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8/S-3 (No. 33-96606) of Commercial Bankshares, Inc. of
our report dated January 12, 2001 relating to the financial statements, which
appears in the Annual Report to Shareholders, which is incorporated in this
Annual Report on Form 10-K.
PricewaterhouseCoopers LLP
Miami, Florida
March 23, 2001