Transactions After Closing Date. Seller and Purchaser hereby agree that, except as provided below or otherwise agreed in writing by the parties, for a period of 90 days after the Closing Date: A. Subject to Section 7.5I, Seller shall transfer, convey, and assign to Purchaser on the date of its receipt all deposits received by Seller after the Closing Date for credit to any of the accounts for the Deposits, and all payments received by Seller after the Closing Date for application to or on account of any of the Assets. B. Seller shall notify Purchaser on the date of its receipt of the return to it of any items deposited in, or cashed at, the Branches prior to the Closing Date and shall expeditiously forward any such items to Purchaser. If Purchaser cannot recover on such returned items after making a good faith effort to do so, Seller shall reimburse Purchaser for such return items upon assignment of such items by Purchaser to Seller. Purchaser’s good faith effort shall not include institution of any legal action with respect to such recovery. C. To the extent permitted by law and the applicable contracts for the Deposits, Purchaser agrees that it will honor all properly payable checks, drafts, withdrawal orders and similar items drawn on Seller’s forms against the Deposits, which are presented to Purchaser by mail, over its counters, or through clearing houses. D. Provided that such items have been timely delivered to Purchaser by Seller, Purchaser shall pay the items referred to in Section 7.5C to the extent of the balance of funds in the accounts. Seller shall deliver such checks and drafts to Purchaser at Purchaser’s address set forth in Section 9.9, no later than 4:00 p.m. Eastern Time one business day following the day they were received by Seller. Purchaser shall promptly reimburse Seller on a daily basis for the amount of all such checks and drafts paid by Seller. The parties shall share equally the cost of delivery of any items under this Section 7.5D. E. As of the Closing Date, Purchaser will notify all Automated Clearing House (“ACH”) originators of the transfers and assumptions made pursuant to the Agreement; provided, however, that Seller may, at its option, notify all such originators itself (on behalf of Purchaser). For a period of 90 days beginning on the Closing Date, Seller will honor all ACH items related to accounts for Deposits assumed under this Agreement, which are routed or presented to Seller. Seller will make no charge to Purchaser for honoring such items, and will transmit such ACH data to Purchaser on a daily basis. If Purchaser cannot receive an electronic transmission, Seller will make available daily to Purchaser at Seller’s operations center receiving items from the ACH tapes containing such ACH data. Seller and Purchaser shall make arrangements to provide for the daily settlement with immediately available funds by Purchaser of any ACH items honored by Seller, and Seller shall be held harmless and indemnified by Purchaser for acting in accordance with this arrangement to accept ACH items other than ACH items initiated by Seller. Seller shall settle any and all ATM transactions effected on or before the Closing Date, but processed after the Closing Date, as soon as practicable. Purchaser and Seller agree to remit the total net balance of such transactions to Seller or Purchaser, as the case may be, on the same date the transactions are settled. In instances in which an owner of a Deposit made an assertion of error regarding an account pursuant to the Electronic Funds Transfer Act and Federal Reserve Board Regulation E, and Seller, prior to the Closing Date, recredited the disputed amount to the relevant account during the conduct of the error investigation, Purchaser agrees to comply with a written request from Seller to debit such account in a stated amount and remit such amount to Seller, to the extent of the balance of funds available in the accounts. F. Seller shall provide Purchaser with a listing of each stop payment order in effect as to a Deposit or Purchased Loan on the Closing Date. Purchaser shall honor all stop payment orders relating to the Deposits or the Purchased Loans initiated prior to the Closing and reflected in the magnetic tape made available by Seller to Purchaser on the Closing Date. In the event that Purchaser shall make any payment in violation of a stop payment order initiated prior to the Closing but not reflected in stop payment documents and the magnetic tape made available by Seller to Purchaser prior to such payment, then Seller shall indemnify, hold harmless and defend Purchaser from and against all claims, losses and liabilities, including reasonable attorneys’ fees and expenses, arising out of any such payment. In the event that Purchaser shall make any payment in violation of a stop payment order initiated prior to the Closing that is reflected in stop payment documents and the magnetic tape made available by Seller to Purchaser prior to such payment, then Purchaser shall indemnify, hold harmless and defend Seller from and against all claims, losses and liabilities, including reasonable attorneys’ fees and expenses, arising out of any such payment. G. After the Closing Date, Purchaser shall process any and all “charge-back items” received subsequent to the Closing Date but arising prior thereto against any amount for Deposits, as covered under applicable charge-back regulations. “Charge-back items” shall include, but not be limited to, disputed items, purchases over limit, fraudulent use of a debit card, late presentations of sales slips, unpresented credit on sales returns and other adjustments as specified under the rules and regulations of MasterCard or Visa. If Purchaser cannot recover on any such charge-back items after making a good faith effort to do so, Seller shall reimburse Purchaser for such items upon assignment of such items by Purchaser to Seller. Purchaser’s good faith effort to recover on any such items shall not require that Purchaser take any legal action against any person. H. Seller agrees that, following the date of this Agreement, Seller will not, without the consent of Purchaser, alter or change any business practice at the Branch related to overdrawn deposit accounts, except in connection with a change applicable to Seller generally and which is no more permissive than the current policy. I. Purchaser and Seller agree that all amounts required to be remitted by either such party to the other party hereto pursuant to this Section 7.5 shall be settled on a daily basis. Any amounts to be paid by Seller to Purchaser shall be netted daily against any amounts to be paid by Purchaser to Seller, such that only one amount, representing the net amount due, shall be transferred on a daily basis by the party with the higher amount of remittances for such day in immediately available funds. Purchaser shall provide Seller with a daily net settlement figure for all such transactions from the immediately preceding business day by 12:00 noon Eastern Time on each business day and the party obligated to remit any funds thereunder shall do so in immediately available funds by wire transfer by 2:00 p.m. Eastern Time on such day or by any other method of payment agreed upon by the parties; any such settlement shall be provisional pending receipt or review by the parties of the physical items relating to such settlement. J. If any uncollected item credited to a Deposit at the time of the transfer of such Deposit to Purchaser is subsequently returned resulting in an overdraft to the Deposit account, Seller shall pay to Purchaser, not later than two business days after demand, the amount of such uncollected item; provided, however, that Purchaser shall, upon Seller's making payment for such uncollected item, deliver such uncollected item to Seller and shall assign to Seller any and all rights which Purchaser may have or obtain in connection with such returned item. K. If the balance due on any Purchased Loan transferred and assigned to Purchaser pursuant to the terms of the Agreement has been reduced as a result of the receipt of an item or items prior to the Closing Date, which are returned after the Closing Date as uncollected, the asset value represented by the Purchased Loan transferred shall be correspondingly increased, and an amount in cash equal to such increase shall be paid by Purchaser to Seller within two business days after receipt of such returned item. L. If Seller receives payments, notices or correspondence with respect to any Purchased Loan after the Closing Date, Seller shall remit such payments, notices or correspondence to Purchaser in the same form received by Seller. M. For a period of 30 days after the Closing Date, upon demand of Purchaser, Seller shall pay promptly to Purchaser the overdraft amount (negative balance) of any of the Deposits. N. For a period from the Closing Date until the next calendar quarter-end, Seller agrees that, for any credit-related concern or reason, Purchaser may return to Seller for repurchase within three business days of Purchaser’s submission any of the Purchased Loans (such returned Purchased Loans to be collectively referred to herein as “Returned Loans”). The Returned Loans shall be repurchased at a price equal to 99.0% of the amount of the unpaid principal of the Returned Loan and Accrued Loan Interest on it at Closing, as adjusted for interim payments on the Returned Loans since the Closing Date; provided, however, that (i) the aggregate principal amount of the Returned Loans shall not exceed 10% of the aggregate principal amount of the Purchased Loans on the Closing Date; and (ii) Purchaser shall deliver any such Returned Loans and their documentation to Seller and assign to Seller any and all rights which Purchaser may have or obtain in connection therewith. O. Purchaser shall file Form 1099s for the Deposits covering the year in which the Closing occurs only from the Closing Date to the end of that year. Seller shall file Form 1099s for the Deposits from the first of the year in which the Closing occurs through the close of business the day before the Closing Date.
Appears in 1 contract
Samples: Purchase and Assumption Agreement (Pab Bankshares Inc)
Transactions After Closing Date. Seller and Purchaser hereby agree that, except as provided below or otherwise agreed in writing by the parties, for a period of 90 days after the Closing Date:
A. Subject to Section 7.5I, Seller shall transfer, convey, and assign to Purchaser on the date of its receipt all deposits received by Seller after the Closing Date for credit to any of the accounts for the Deposits, and all payments received by Seller after the Closing Date for application to or on account of any of the Assets.
B. Seller shall notify Purchaser on the date of its receipt of the return to it of any items deposited in, or cashed at, the Branches Branch prior to the Closing Date and shall expeditiously forward any such items to Purchaser. If Purchaser cannot recover on such returned items after making a good faith effort to do so, Seller shall reimburse Purchaser for such return items upon assignment of such items by Purchaser to Seller. Purchaser’s good faith effort shall not include institution of any legal action with respect to such recovery.
C. To the extent permitted by law and the applicable contracts for the Deposits, Purchaser agrees that it will honor all properly payable checks, drafts, withdrawal orders and similar items drawn on Seller’s forms against the Deposits, which are presented to Purchaser by mail, over its counters, or through clearing houses.
D. Provided that such items have been timely delivered to Purchaser by Seller, Purchaser shall pay the items referred to in Section 7.5C to the extent of the balance of funds in the accounts. Seller shall deliver such checks and drafts to Purchaser at Purchaser’s address set forth in Section 9.9, no later than 4:00 p.m. Eastern Time one business day following the day they were received by Seller. Purchaser shall promptly reimburse Seller on a daily basis for the amount of all such checks and drafts paid by Seller. The parties shall share equally the cost of delivery of any items under this Section 7.5D.
E. As of the Closing Date, Purchaser will notify all Automated Clearing House (“ACH”) originators of the transfers and assumptions made pursuant to the Agreement; provided, however, that Seller may, at its option, notify all such originators itself (on behalf of Purchaser). For a period of 90 days beginning on the Closing Date, Seller will honor all ACH items related to accounts for Deposits assumed under this Agreement, which are routed or presented to Seller. Seller will make no charge to Purchaser for honoring such items, and will transmit such ACH data to Purchaser on a daily basis. If Purchaser cannot receive an electronic transmission, Seller will make available daily to Purchaser at Seller’s operations center receiving items from the ACH tapes containing such ACH data. Seller and Purchaser shall make arrangements to provide for the daily settlement with immediately available funds by Purchaser of any ACH items honored by Seller, and Seller shall be held harmless and indemnified by Purchaser for acting in accordance with this arrangement to accept ACH items other than ACH items initiated by Seller. Seller shall settle any and all ATM transactions effected on or before the Closing Date, but processed after the Closing Date, as soon as practicable. Purchaser and Seller agree to remit the total net balance of such transactions to Seller or Purchaser, as the case may be, on the same date the transactions are settled. In instances in which an owner of a Deposit made an assertion of error regarding an account pursuant to the Electronic Funds Transfer Act and Federal Reserve Board Regulation E, and Seller, prior to the Closing Date, recredited the disputed amount to the relevant account during the conduct of the error investigation, Purchaser agrees to comply with a written request from Seller to debit such account in a stated amount and remit such amount to Seller, to the extent of the balance of funds available in the accounts.
F. Seller shall provide Purchaser with a listing of each stop payment order in effect as to a Deposit or Purchased Loan on the Closing Date. Purchaser shall honor all stop payment orders relating to the Deposits or the Purchased Loans initiated prior to the Closing and reflected in the magnetic tape made available by Seller to Purchaser on the Closing Date. In the event that Purchaser shall make any payment in violation of a stop payment order initiated prior to the Closing but not reflected in stop payment documents and the magnetic tape made available by Seller to Purchaser prior to such payment, then Seller shall indemnify, hold harmless and defend Purchaser from and against all claims, losses and liabilities, including reasonable attorneys’ fees and expenses, arising out of any such payment. In the event that Purchaser shall make any payment in violation of a stop payment order initiated prior to the Closing that is reflected in stop payment documents and the magnetic tape made available by Seller to Purchaser prior to such payment, then Purchaser shall indemnify, hold harmless and defend Seller from and against all claims, losses and liabilities, including reasonable attorneys’ fees and expenses, arising out of any such payment.
G. After the Closing Date, Purchaser shall process any and all “charge-back items” received subsequent to the Closing Date but arising prior thereto against any amount for Deposits, as covered under applicable charge-back regulations. “Charge-back items” shall include, but not be limited to, disputed items, purchases over limit, fraudulent use of a debit card, late presentations of sales slips, unpresented credit on sales returns and other adjustments as specified under the rules and regulations of MasterCard or Visa. If Purchaser cannot recover on any such charge-back items after making a good faith effort to do so, Seller shall reimburse Purchaser for such items upon assignment of such items by Purchaser to Seller. Purchaser’s good faith effort to recover on any such items shall not require that Purchaser take any legal action against any person.
H. Seller agrees that, following the date of this Agreement, Seller will not, without the consent of Purchaser, alter or change any business practice at the Branch related to overdrawn deposit accounts, except in connection with a change applicable to Seller generally and which is no more permissive than the current policy.
I. Purchaser and Seller agree that all amounts required to be remitted by either such party to the other party hereto pursuant to this Section 7.5 shall be settled on a daily basis. Any amounts to be paid by Seller to Purchaser shall be netted daily against any amounts to be paid by Purchaser to Seller, such that only one amount, representing the net amount due, shall be transferred on a daily basis by the party with the higher amount of remittances for such day in immediately available funds. Purchaser shall provide Seller with a daily net settlement figure for all such transactions from the immediately preceding business day by 12:00 noon Eastern Time on each business day and the party obligated to remit any funds thereunder shall do so in immediately available funds by wire transfer by 2:00 p.m. Eastern Time on such day or by any other method of payment agreed upon by the parties; any such settlement shall be provisional pending receipt or review by the parties of the physical items relating to such settlement.
J. If any uncollected item credited to a Deposit at the time of the transfer of such Deposit to Purchaser is subsequently returned resulting in an overdraft to the Deposit account, Seller shall pay to Purchaser, not later than two business days after demand, the amount of such uncollected item; provided, however, that Purchaser shall, upon Seller's making payment for such uncollected item, deliver such uncollected item to Seller and shall assign to Seller any and all rights which Purchaser may have or obtain in connection with such returned item.
K. If the balance due on any Purchased Loan transferred and assigned to Purchaser pursuant to the terms of the Agreement has been reduced as a result of the receipt of an item or items prior to the Closing Date, which are returned after the Closing Date as uncollected, the asset value represented by the Purchased Loan transferred shall be correspondingly increased, and an amount in cash equal to such increase shall be paid by Purchaser to Seller within two business days after receipt of such returned item.
L. If Seller receives payments, notices or correspondence with respect to any Purchased Loan after the Closing Date, Seller shall remit such payments, notices or correspondence to Purchaser in the same form received by Seller.
M. For a period of 30 days after the Closing Date, upon demand of Purchaser, Seller shall pay promptly to Purchaser the overdraft amount (negative balance) as of the Closing Date of any of the Deposits.
N. For a period from the Closing Date until the next calendar quarter-end, Seller agrees that, for any credit-related concern or reason, Purchaser may return to Seller for repurchase within three business days of Purchaser’s submission any of the Purchased Loans (such returned Purchased Loans to be collectively referred to herein as “Returned Loans”). The Returned Loans shall be repurchased at a price equal to 99.0% of the amount of the unpaid principal of the Returned Loan and Accrued Loan Interest on it at Closing, as adjusted for interim payments on the Returned Loans since the Closing Date; provided, however, that (i) the aggregate principal amount of the Returned Loans shall not exceed 10% of the aggregate principal amount of the Purchased Loans on the Closing Date; and (ii) Purchaser shall deliver any such Returned Loans and their documentation to Seller and assign to Seller any and all rights which Purchaser may have or obtain in connection therewith. O. Purchaser shall file Form 1099s for the Deposits covering the year in which the Closing occurs only from the Closing Date to the end of that year. Seller shall file Form 1099s for the Deposits from the first of the year in which the Closing occurs through the close of business the day before the Closing Date.
Appears in 1 contract
Samples: Purchase and Assumption Agreement (Heritage Financial Group Inc)
Transactions After Closing Date. Seller A. Following the Closing, Purchaser agrees to pay in accordance with law all checks, drafts and Purchaser hereby agree that, except as provided below or otherwise agreed in writing withdrawal orders which are properly drawn by the parties, for a period of 90 days after the Closing Date:
A. Subject to Section 7.5I, Seller shall transfer, convey, and assign to Purchaser on the date of its receipt all deposits received by Seller after the Closing Date for credit to any of the accounts for the Deposits, and all payments received by Seller after the Closing Date for application to or on account of any of the Assets.
B. Seller shall notify Purchaser on the date of its receipt of the return to it of any items deposited in, or cashed at, the Branches prior to the Closing Date and shall expeditiously forward any such items to Purchaser. If Purchaser cannot recover on such returned items after making a good faith effort to do so, Seller shall reimburse Purchaser for such return items upon assignment of such items by Purchaser to Seller. Purchaser’s good faith effort shall not include institution of any legal action depositors with respect to the Deposits assumed by Purchaser, duly endorsed (or for which necessary endorsements are deemed supplied by applicable law) and otherwise properly payable, in light of credit balances and any overdraft privileges applicable to such recovery.
C. To the extent permitted by law depositors, and the applicable contracts for the Deposits, Purchaser agrees that it will honor all properly payable checks, drafts, withdrawal orders and similar items drawn on Seller’s forms against the Deposits, which are presented to Purchaser by mail, over its counters, or through the check clearing houses.
D. Provided that such items have been timely delivered system of the banking industry, and in all other respects to Purchaser by Sellerdischarge, Purchaser shall pay in the items referred to in Section 7.5C usual course of the banking business, the duties and obligations of Seller with respect to the extent of the balance of funds in the accounts. Seller shall deliver such checks balances due and drafts to Purchaser at Purchaser’s address set forth in Section 9.9, no later than 4:00 p.m. Eastern Time one business day following the day they were received by Seller. Purchaser shall promptly reimburse Seller on a daily basis for the amount of all such checks and drafts paid by Seller. The parties shall share equally the cost of delivery of any items under this Section 7.5D.
E. As of the Closing Date, Purchaser will notify all Automated Clearing House (“ACH”) originators of the transfers and assumptions made pursuant owing to the Agreement; provided, however, that Seller may, at its option, notify all such originators itself (on behalf of depositors whose Deposits are assumed by the Purchaser). B. For a period of 90 ninety (90) days beginning on after the Closing Date, Seller will honor all ACH items related agrees to accounts for Deposits assumed under this Agreement, which are routed or presented to Seller. Seller will make no charge to Purchaser for honoring such items, and will transmit such ACH data to Purchaser on a daily basis. If Purchaser cannot receive an electronic transmission, Seller will make available daily to Purchaser at Seller’s operations center receiving items from the ACH tapes containing such ACH data. Seller and Purchaser shall make arrangements to provide act as Purchaser's limited correspondent for the daily settlement with immediately available funds by Purchaser processing of any ACH items honored by Sellerchecks, drafts and Seller shall be held harmless and indemnified by Purchaser for acting in accordance with this arrangement to accept ACH items other than ACH items initiated by Seller. Seller shall settle any and all ATM transactions effected on withdrawal orders drawn before or before the Closing Date, but processed after the Closing Dateon the draft or check forms provided by the Seller on accounts assumed by Purchaser hereunder, as soon as practicable. and Purchaser will honor and Seller agree pay all such checks, drafts, and withdrawals orders, if duly endorsed and to remit the total net balance extent that the Next Page 14 credit balances or overdraft privileges of the drawers or makers permit, provided that the Seller's sole responsibility shall be to actually deliver at Seller's cost to a location reasonably designated by Purchaser in the State of Washington all such transactions checks, drafts and withdrawal orders to Seller Purchaser or Purchaser, 's agent at such times and places as the case may be, on parties so shall agree but in no event later than the same date the transactions are settledday Seller receives such checks, drafts and withdrawal orders from its agent or processor. In instances in which an owner of a Deposit made an assertion of error regarding an account pursuant to the Electronic Funds Transfer Act and Federal Reserve Board Regulation E, and Seller, prior to the Closing Date, recredited the disputed amount to the relevant account during the conduct of the error investigation, Purchaser agrees to comply indemnify Seller for third party costs incurred by Seller with a written request from Seller respect to debit such account in a stated amount and remit such amount to Sellerthis paragraph, including charges to the extent Seller through the check clearing system of the balance banking industry which result from check, draft or withdrawal forms of funds available in the accounts.
F. Seller shall provide Purchaser with a listing of each stop payment order in effect as to a Deposit or Purchased Loan on the Closing Date. Purchaser shall honor all stop payment orders relating to the Deposits or the Purchased Loans initiated prior to the Closing and reflected in the magnetic tape made available by Seller to Purchaser on the Closing Date. In the event that Purchaser shall make any payment in violation of a stop payment order initiated prior to the Closing but not reflected in stop payment documents and the magnetic tape made available by Seller to Purchaser prior to such payment, then Seller shall indemnify, hold harmless and defend Purchaser from and against all claims, losses and liabilities, including reasonable attorneys’ fees and expenses, arising out of any such payment. In the event that Purchaser shall make any payment in violation of a stop payment order initiated prior to the Closing that is reflected in stop payment documents and the magnetic tape made available by Seller to Purchaser prior to such payment, then Purchaser shall indemnify, hold harmless and defend Seller from and against all claims, losses and liabilities, including reasonable attorneys’ fees and expenses, arising out of any such payment.
G. After the Closing Date, Purchaser shall process any and all “charge-back items” received subsequent to being used after the Closing Date but arising prior thereto against any amount for Deposits, as covered under applicable charge-back regulations. “Charge-back items” shall include, but not be limited to, disputed items, purchases over limit, fraudulent use of a debit card, late presentations of sales slips, unpresented credit on sales returns and other adjustments as specified under the rules and regulations of MasterCard or Visa. If Purchaser cannot recover on any such charge-back items after making a good faith effort to do so, Seller shall reimburse Purchaser for such items upon assignment of such items by Purchaser to Seller. Purchaser’s good faith effort to recover on any such items shall not require that Purchaser take any legal action against any person.
H. Seller agrees that, following the date of this Agreement, Seller will not, without the consent of Purchaser, alter or change any business practice at the Branch related to overdrawn deposit accounts, except in connection with a change applicable to Seller generally and which is no more permissive than the current policy.
I. Purchaser and Seller agree that all amounts required to be remitted by either such party to the other party hereto pursuant to this Section 7.5 shall be settled on a daily basis. Any amounts to be paid by Seller to Purchaser shall be netted daily against any amounts to be paid by Purchaser to Seller, such that only one amount, representing the net amount due, shall be transferred on a daily basis by the party with the higher amount of remittances for such day in immediately available fundsdepositors whose accounts are assumed hereunder. Purchaser shall provide Seller with a daily net settlement figure for all such transactions from the immediately preceding business day by 12:00 noon Eastern Time on each business day and the party obligated to remit any funds thereunder shall do so in immediately available funds by wire transfer by 2:00 p.m. Eastern Time on such day or by any other method of payment agreed upon by the parties; any such settlement shall be provisional pending receipt or review by the parties of the physical items relating to such settlement.
J. C. If any uncollected item credited to a Deposit at the time of the transfer of such Deposit to Purchaser is subsequently returned resulting in an overdraft to the Deposit account, Seller shall pay to Purchaseragrees, not later than two (2) business days after demand, to pay to Purchaser the amount of such uncollected item; provided, however, that Purchaser shall, upon Seller's making payment for such uncollected item, deliver such uncollected item to Seller and shall assign to Seller any and all rights which Purchaser may have or obtain in connection with such returned item.
K. . D. If the balance due on any Purchased Loan transferred and assigned to Purchaser pursuant to the terms of the Agreement has been reduced as a result of the receipt of an item or items prior to the Closing Date, which are returned after the Closing Date as uncollected, the asset value represented by the Purchased Loan transferred shall be correspondingly increased, and an amount in cash equal to such increase shall be paid by Purchaser to Seller within two (2) business days after receipt of such returned item.
L. . E. If Seller receives payments, notices or correspondence payment with respect to any Purchased Loan after the Closing Date, Seller shall remit such payments, notices or correspondence payments to Purchaser in the same form received by Seller.
M. that Seller receives such payments. F. For a period of 30 thirty (30) days after the Closing Date, Seller agrees that upon demand of Purchaser, Purchaser Seller shall immediately pay promptly to Purchaser the overdraft amount (negative balance) of any of the Depositstransferred Deposit.
N. For a period from the Closing Date until the next calendar quarter-end, Seller agrees that, for any credit-related concern or reason, Purchaser may return to Seller for repurchase within three business days of Purchaser’s submission any of the Purchased Loans (such returned Purchased Loans to be collectively referred to herein as “Returned Loans”). The Returned Loans shall be repurchased at a price equal to 99.0% of the amount of the unpaid principal of the Returned Loan and Accrued Loan Interest on it at Closing, as adjusted for interim payments on the Returned Loans since the Closing Date; provided, however, that (i) the aggregate principal amount of the Returned Loans shall not exceed 10% of the aggregate principal amount of the Purchased Loans on the Closing Date; and (ii) Purchaser shall deliver any such Returned Loans and their documentation to Seller and assign to Seller any and all rights which Purchaser may have or obtain in connection therewith. O. Purchaser shall file Form 1099s for the Deposits covering the year in which the Closing occurs only from the Closing Date to the end of that year. Seller shall file Form 1099s for the Deposits from the first of the year in which the Closing occurs through the close of business the day before the Closing Date.
Appears in 1 contract
Samples: Purchase and Assumption Agreement (Sound Financial, Inc.)
Transactions After Closing Date. Seller and Purchaser hereby agree that, except as provided below or otherwise agreed in writing by the parties, for a period of 90 days after the Closing Date:
A. Subject to Section 7.5I, Seller shall transfer, convey, and assign to Purchaser on the date of its receipt all deposits received by Seller after the Closing Date for credit to any of the accounts for the Deposits, and all payments received by Seller after the Closing Date for application to or on account of any of the Assets.
B. Seller shall notify Purchaser on the date of its receipt of the return to it of any items deposited in, or cashed at, the Branches prior to the Closing Date and shall expeditiously forward any such items to Purchaser. If Purchaser cannot recover on such returned items after making a good faith effort to do so, Seller shall reimburse Purchaser for such return items upon assignment of such items by Purchaser to Seller. Purchaser’s good faith effort shall not include institution of any legal action with respect to such recovery.
C. To the extent permitted by law and the applicable contracts for the Deposits, Purchaser agrees that it will honor all properly payable checks, drafts, withdrawal orders and similar items drawn on Seller’s forms against the Deposits, which are presented to Purchaser by mail, over its counters, or through clearing houses.
D. Provided that such items have been timely delivered to Purchaser by Seller, Purchaser shall pay the items referred to in Section 7.5C to the extent of the balance of funds in the accounts. Seller shall deliver such checks and drafts to Purchaser at Purchaser’s address set forth in Section 9.9, no later than 4:00 p.m. Eastern Time one business day following the day they were received by Seller. Purchaser shall promptly reimburse Seller on a daily basis for the amount of all such checks and drafts paid by Seller. The parties shall share equally the cost of delivery of any items under this Section 7.5D.
E. As of the Closing Date, Purchaser will notify all Automated Clearing House (“ACH”) originators of the transfers and assumptions made pursuant to the Agreement; provided, however, that Seller may, at its option, notify all such originators itself (on behalf of Purchaser). For a period of 90 days beginning on the Closing Date, Seller will honor all ACH items related to accounts for Deposits assumed under this Agreement, which are routed or presented to Seller. Seller will make no charge to Purchaser for honoring such items, and will transmit such ACH data to Purchaser on a daily basis. If Purchaser cannot receive an electronic transmission, Seller will make available daily to Purchaser at Seller’s operations center receiving items from the ACH tapes containing such ACH data. Seller and Purchaser shall make arrangements to provide for the daily settlement with immediately available funds by Purchaser of any ACH items honored by Seller, and Seller shall be held harmless and indemnified by Purchaser for acting in accordance with this arrangement to accept ACH items other than ACH items initiated by Seller. Seller shall settle any and all ATM transactions effected on or before the Closing Date, but processed after the Closing Date, as soon as practicable. Purchaser and Seller agree to remit the total net balance of such transactions to Seller or Purchaser, as the case may be, on the same date the transactions are settled. In instances in which an owner of a Deposit made an assertion of error regarding an account pursuant to the Electronic Funds Transfer Act and Federal Reserve Board Regulation E, and Seller, prior to the Closing Date, recredited the disputed amount to the relevant account during the conduct of the error investigation, Purchaser agrees to comply with a written request from Seller to debit such account in a stated amount and remit such amount to Seller, to the extent of the balance of funds available in the accounts.
F. Seller shall provide Purchaser with a listing of each stop payment order in effect as to a Deposit or Purchased Loan on the Closing Date. Purchaser shall honor all stop payment orders relating to the Deposits or the Purchased Loans initiated prior to the Closing and reflected in the magnetic tape made available by Seller to Purchaser on the Closing Date. In the event that Purchaser shall make any payment in violation of a stop payment order initiated prior to the Closing but not reflected in stop payment documents and the magnetic tape made available by Seller to Purchaser prior to such payment, then Seller shall indemnify, hold harmless and defend Purchaser from and against all claims, losses and liabilities, including reasonable attorneys’ fees and expenses, arising out of any such payment. In the event that Purchaser shall make any payment in violation of a stop payment order initiated prior to the Closing that is reflected in stop payment documents and the magnetic tape made available by Seller to Purchaser prior to such payment, then Purchaser shall indemnify, hold harmless and defend Seller from and against all claims, losses and liabilities, including reasonable attorneys’ fees and expenses, arising out of any such payment.
G. After the Closing Date, Purchaser shall process any and all “charge-back items” received subsequent to the Closing Date but arising prior thereto against any amount for Deposits, as covered under applicable charge-back regulations. “Charge-back items” shall include, but not be limited to, disputed items, purchases over limit, fraudulent use of a debit card, late presentations of sales slips, unpresented credit on sales returns and other adjustments as specified under the rules and regulations of MasterCard or Visa. If Purchaser cannot recover on any such charge-back items after making a good faith effort to do so, Seller shall reimburse Purchaser for such items upon assignment of such items by Purchaser to Seller. Purchaser’s good faith effort to recover on any such items shall not require that Purchaser take any legal action against any person.
H. Seller agrees that, following the date of this Agreement, Seller will not, without the consent of Purchaser, alter or change any business practice at the Branch related to overdrawn deposit accounts, except in connection with a change applicable to Seller generally and which is no more permissive than the current policy.
I. Purchaser and Seller agree that all amounts required to be remitted by either such party to the other party hereto pursuant to this Section 7.5 shall be settled on a daily basis. Any amounts to be paid by Seller to Purchaser shall be netted daily against any amounts to be paid by Purchaser to Seller, such that only one amount, representing the net amount due, shall be transferred on a daily basis by the party with the higher amount of remittances for such day in immediately available funds. Purchaser shall provide Seller with a daily net settlement figure for all such transactions from the immediately preceding business day by 12:00 noon Eastern Time on each business day and the party obligated to remit any funds thereunder shall do so in immediately available funds by wire transfer by 2:00 p.m. Eastern Time on such day or by any other method of payment agreed upon by the parties; any such settlement shall be provisional pending receipt or review by the parties of the physical items relating to such settlement.
J. If any uncollected item credited to a Deposit at the time of the transfer of such Deposit to Purchaser is subsequently returned resulting in an overdraft to the Deposit account, Seller shall pay to Purchaser, not later than two business days after demand, the amount of such uncollected item; provided, however, that Purchaser shall, upon Seller's making payment for such uncollected item, deliver such uncollected item to Seller and shall assign to Seller any and all rights which Purchaser may have or obtain in connection with such returned item.
K. If the balance due on any Purchased Loan transferred and assigned to Purchaser pursuant to the terms of the Agreement has been reduced as a result of the receipt of an item or items prior to the Closing Date, which are returned after the Closing Date as uncollected, the asset value represented by the Purchased Loan transferred shall be correspondingly increased, and an amount in cash equal to such increase shall be paid by Purchaser to Seller within two business days after receipt of such returned item.
L. If Seller receives payments, notices or correspondence with respect to any Purchased Loan after the Closing Date, Seller shall remit such payments, notices or correspondence to Purchaser in the same form received by Seller.
M. For a period of 30 days after the Closing Date, upon demand of Purchaser, Seller shall pay promptly to Purchaser the overdraft amount (negative balance) of any of the Deposits.
N. For a period from the Closing Date until the next calendar quarter-end, Seller agrees that, for any credit-related concern or reason, Purchaser may return to Seller for repurchase within three business days of Purchaser’s submission any of the Purchased Loans (such returned Purchased Loans to be collectively referred to herein as “Returned Loans”). The Returned Loans shall be repurchased at a price equal to 99.0% of the amount of the unpaid principal of the Returned Loan and Accrued Loan Interest on it at Closing, as adjusted for interim payments on the Returned Loans since the Closing Date; provided, however, that (i) the aggregate principal amount of the Returned Loans shall not exceed 10% of the aggregate principal amount of the Purchased Loans on the Closing Date; and (ii) Purchaser shall deliver any such Returned Loans and their documentation to Seller and assign to Seller any and all rights which Purchaser may have or obtain in connection therewith. O. Purchaser shall file Form 1099s for the Deposits covering the year in which the Closing occurs only from the Closing Date to the end of that year. Seller shall file Form 1099s for the Deposits from the first of the year in which the Closing occurs through the close of business the day before the Closing Date.
Appears in 1 contract
Samples: Purchase and Assumption Agreement (Heritage Financial Group)
Transactions After Closing Date. Seller and Purchaser hereby agree that, that except as provided below or otherwise agreed in writing by the parties, for a period of 90 days after the Closing Dateending on March 31, 2012:
A. Subject to Section 7.5I7.5(I), Seller shall transfer, convey, and assign to Purchaser on the date of its receipt all deposits received by Seller after the Closing Date for credit to any of the accounts for the Deposits, and all payments received by Seller after the Closing Date for application to or on account of any of the Assets.
B. Seller shall notify Purchaser on the date of its receipt of the return to it of any items deposited in, or cashed at, the Branches Branch prior to the Closing Date and shall expeditiously forward any such items to Purchaser. If Purchaser cannot recover on such returned items after making a good faith effort to do so, Seller shall reimburse Purchaser for such return items upon assignment of such items by Purchaser to Seller. Purchaser’s good faith effort shall not include institution of any legal action with respect to such recovery.
C. To the extent permitted by law and the applicable contracts for the Deposits, Purchaser agrees that it will honor all properly payable checks, drafts, withdrawal orders and similar items drawn on Seller’s forms against the Deposits, which are presented to Purchaser by mail, over its counters, or through clearing houses.
D. Provided that such items have been timely delivered to Purchaser by Seller, Purchaser shall pay the items referred to in Section 7.5C 7.5(C) to the extent of the balance of funds in the accounts. Seller shall deliver such checks and drafts to Purchaser at Purchaser’s address set forth in Section 9.9, no later than 4:00 p.m. Eastern Central Time one business day following the day they were received by Seller. Purchaser shall promptly reimburse Seller on a daily basis for the amount of all such checks and drafts paid by Seller. The parties shall share equally the cost of delivery of any items under this Section 7.5D.
E. As of the Closing Date, Purchaser will notify all Automated Clearing House (“ACH”) originators of the transfers and assumptions made pursuant to the Agreement; provided, however, that Seller may, at its option, notify all such originators itself (on behalf of Purchaser). For a period of 90 days beginning ending on the Closing DateMarch 31, 2012, Seller will honor all ACH items related to accounts for Deposits assumed under this Agreement, which are routed or presented to Seller. Seller will make no charge to Purchaser for honoring such items, and will transmit such ACH data to Purchaser on a daily basis. If Purchaser cannot receive an electronic transmission, Seller will make available daily to Purchaser at Seller’s operations center receiving items from the ACH tapes containing such ACH data. Seller and Purchaser shall make arrangements to provide for the daily settlement with immediately available funds by Purchaser of any ACH items honored by Seller, and Seller shall be held harmless and indemnified by Purchaser for acting in accordance with this arrangement to accept ACH items other than ACH items initiated by Seller. Seller shall settle any and all ATM transactions effected on or before the Closing Date, but processed after the Closing Date, as soon as practicable. Purchaser and Seller agree to shall remit the total net balance of such transactions to Seller or Purchaser, as the case may be, on the same date the transactions are settled. In instances in which an owner of a Deposit made an assertion of error regarding an account pursuant to the Electronic Funds Transfer Act and Federal Reserve Board Regulation E, and Seller, prior to the Closing Date, recredited the disputed amount to the relevant account during the conduct of the error investigation, Purchaser agrees to shall comply with a written request from Seller to debit such account in a stated amount and remit such amount to Seller, to the extent of the balance of funds available in the accounts.
F. Seller shall provide Purchaser with a listing of each stop payment order in effect as to a Deposit or Purchased Loan on the Closing Date. Purchaser shall honor all stop payment orders relating to the Deposits or the Purchased Loans initiated prior to the Closing and reflected in the magnetic tape made available by Seller to Purchaser on the Closing Date. In the event that Purchaser shall make makes any payment in violation of a stop payment order initiated prior to the Closing but not reflected in stop payment documents and the magnetic tape made available by Seller to Purchaser prior to such payment, then Seller shall indemnify, hold harmless and defend Purchaser from and against all claims, losses and liabilities, including reasonable attorneys’ fees and expenses, arising out of any such payment. In the event that Purchaser shall make makes any payment in violation of a stop payment order initiated prior to the Closing that is reflected in stop payment documents and the magnetic tape made available by Seller to Purchaser prior to such payment, then Purchaser shall indemnify, hold harmless and defend Seller from and against all claims, losses and liabilities, including reasonable attorneys’ fees and expenses, arising out of any such payment.
G. After the Closing Date, Purchaser shall process any and all “charge-back items” received subsequent to the Closing Date but arising prior thereto against any amount for Deposits, as covered under applicable charge-back regulations. “Charge-back items” shall include, but not be limited to, disputed items, purchases over limit, fraudulent use of a debit card, late presentations of sales slips, unpresented credit on sales returns and other adjustments as specified under the rules and regulations of MasterCard or Visa. If Purchaser cannot recover on any such charge-back items after making a good faith effort to do so, Seller shall reimburse Purchaser for such items upon assignment of such items by Purchaser to Seller. Purchaser’s good faith effort to recover on any such items shall not require that Purchaser take any legal action against any person.
H. Seller agrees that, following Following the date of this Agreement, Seller will not, without the consent of Purchaser, alter or change any business practice at the Branch related to overdrawn deposit accounts, except in connection with a change applicable to Seller generally and which is no more permissive than the current policy.
I. Purchaser and Seller The parties agree that all amounts required to be remitted by either such party to the other party hereto pursuant to this Section 7.5 shall be settled on a daily basis. Any amounts to be paid by Seller to Purchaser shall be netted daily against any amounts to be paid by Purchaser to Seller, such that only one amount, representing the net amount due, shall be transferred on a daily basis by the party with the higher amount of remittances for such day in immediately available funds. Purchaser shall provide Seller with a daily net settlement figure for all such transactions from the immediately preceding business day by 12:00 noon Eastern Central Time on each business day and the party obligated to remit any funds thereunder shall do so in immediately available funds by wire transfer by 2:00 p.m. Eastern Central Time on such day or by any other method of payment agreed upon by the parties; any such settlement shall be provisional pending receipt or review by the parties of the physical items relating to such settlement.
J. If any uncollected item credited to a Deposit at the time of the transfer of such Deposit to Purchaser is subsequently returned resulting in an overdraft to the Deposit account, Seller shall pay to Purchaser, not later than two business days after demand, the amount of such uncollected item; provided, however, that Purchaser shall, upon Seller's ’s making payment for such uncollected item, deliver such uncollected item to Seller and shall assign to Seller any and all rights which Purchaser may have or obtain in connection with such returned item.
K. If the balance due on any Purchased Loan transferred and assigned to Purchaser pursuant to the terms of the Agreement has been reduced as a result of the receipt of an item or items prior to the Closing Date, which are returned after the Closing Date as uncollected, the asset value represented by the Purchased Loan transferred shall be correspondingly increased, and an amount in cash equal to such increase shall be paid by Purchaser to Seller within two business days after receipt of such returned item.
L. If Seller receives payments, notices or correspondence with respect to any Purchased Loan after the Closing Date, Seller shall remit such payments, notices or correspondence to Purchaser in the same form received by Seller.
M. For a period of 30 days after the Closing Date, upon Upon demand of Purchaser, Seller shall pay promptly to Purchaser the overdraft amount (negative balance) of any of the DepositsDeposit.
N. For a period from the Closing Date until the next calendar quarter-end, Seller agrees that, for any credit-related concern or reason, that Purchaser may return to Seller for repurchase within three business days of after Purchaser’s submission any of the Purchased Loans (such returned Purchased Loans to be collectively referred to herein as “Returned Loans”). The Returned Loans shall be repurchased at a price equal to 99.0% of the amount of the unpaid principal of the Returned Purchased Loan and Accrued Loan Interest on it at Closing, as adjusted for interim payments on the Returned Loans returned loans since the Closing Date; provided, however, that (i) the aggregate principal amount of the Returned Loans shall not exceed 10% of the aggregate principal amount of the Purchased Loans on the Closing Date; and (ii) Purchaser shall deliver any such Returned Loans and their documentation to Seller and assign to Seller any and all rights which Purchaser may have or obtain in connection therewith. .
O. Purchaser shall file Form 1099s for the Deposits and Form 1098s for the Purchased Loans covering the year in which the Closing occurs only from the Closing Date to the end of Closing; provided that year. Seller shall file provide Purchaser with complete and accurate information concerning data to be reported on Form 1099s for the Deposits from the first of the year in which the Closing occurs and Form 1098s with respect to transactions occurring through the close of business the day before the Closing Date.
Appears in 1 contract
Samples: Purchase and Assumption Agreement (Beacon Federal Bancorp, Inc.)
Transactions After Closing Date. Seller and Purchaser hereby agree that, except as provided below or otherwise agreed in writing by the parties, for a period of 90 days after the Closing Date:
A. Subject to Section 7.5I, Seller shall agrees that it will transfer, convey, and assign to Purchaser on the date of its receipt all deposits received by Seller after the Closing Date for credit to any of the accounts for the Deposits, and all payments received by Seller after the Closing Date for application to or on account of any of the Assets.
B. Seller shall agrees to notify Purchaser on the date of its receipt of the return to it of any items deposited in, or cashed at, the Branches Branch prior to the Closing Date and shall expeditiously forward any such items to Purchaser. If Purchaser cannot recover on such returned items after making a good faith effort to do so, Seller shall reimburse Purchaser for such return items upon assignment of such items by Purchaser to Seller. Purchaser’s good faith effort shall not include institution of any legal action with respect to such recovery.
C. To the extent permitted by law and the applicable contracts for the Deposits, Purchaser agrees that it will honor all properly payable checks, drafts, withdrawal orders and similar items drawn on Seller’s forms against the Deposits, which are presented to Purchaser by mail, over its counters, or through clearing houses.
D. Provided that such items have been timely delivered to Purchaser by Seller, Purchaser shall pay the items referred to in Section 7.5C to the extent of the balance of funds in the accounts. Seller shall deliver such checks and drafts to Purchaser at Purchaser’s address set forth in Section 9.9, no later than 4:00 p.m. Eastern Time one business day following the day they were received by Seller. Purchaser shall promptly reimburse Seller on a daily basis for the amount of all such checks and drafts paid by Seller. The parties shall share equally the cost of delivery of any items under this Section 7.5D.
E. As of the Closing Date, Purchaser will notify all Automated Clearing House (“ACH”) originators of the transfers and assumptions made pursuant to the Agreement; provided, however, that Seller may, at its option, notify all such originators itself (on behalf of Purchaser). For a period of 90 days beginning on the Closing Date, Seller will honor all ACH items related to accounts for Deposits assumed under this Agreement, which are routed or presented to Seller. Seller will make no charge to Purchaser for honoring such items, and will electronically transmit such ACH data to Purchaser on a daily basis. If Purchaser cannot receive an electronic transmission, Seller will make available daily to Purchaser at Seller’s operations center receiving items from the ACH tapes containing such ACH data. Seller and Purchaser shall make arrangements to provide for the daily settlement with immediately available funds by Purchaser of any ACH items honored by Seller, and Seller shall be held harmless and indemnified by Purchaser for acting in accordance with this arrangement to accept ACH items other than ACH items initiated by Seller. Seller shall agrees to settle any and all ATM transactions effected on or before the Closing Date, but processed after the Closing Date, as soon as practicable. Purchaser and Seller agree to remit the total net balance of such transactions to Seller or Purchaser, as the case may be, on the same date the transactions are settled. In instances in which an owner of a Deposit made an assertion of error regarding an account pursuant to the Electronic Funds Transfer Act and Federal Reserve Board Regulation E, and Seller, prior to the Closing Date, recredited the disputed amount to the relevant account during the conduct of the error investigation, Purchaser agrees to comply with a written request from Seller to debit such account in a stated amount and remit such amount to Seller, to the extent of the balance of funds available in the accounts.
F. Seller shall provide Purchaser with a listing of each stop payment order in effect as to a Deposit or Purchased Loan on the Closing Date. Purchaser shall honor all stop payment orders relating to the Deposits or the Purchased Loans initiated prior to the Closing and reflected in the magnetic tape made available by Seller to Purchaser on the Closing Date. In the event that Purchaser shall make any payment in violation of a stop payment order initiated prior to the Closing but not reflected in stop payment documents and the magnetic tape made available by Seller to Purchaser prior to such payment, then Seller shall indemnify, hold harmless and defend Purchaser from and against all claims, losses and liabilities, including reasonable attorneys’ fees and expenses, arising out of any such payment. In the event that Purchaser shall make any payment in violation of a stop payment order initiated prior to the Closing that is reflected in stop payment documents and the magnetic tape made available by Seller to Purchaser prior to such payment, then Purchaser shall indemnify, hold harmless and defend Seller from and against all claims, losses and liabilities, including reasonable attorneys’ fees and expenses, arising out of any such payment.
G. After the Closing Date, Purchaser shall hereby agrees to process any and all “charge-back items” received subsequent to the Closing Date but arising prior thereto against any amount for Deposits, as covered under applicable charge-back regulations. “Charge-back items” shall include, but not be limited to, disputed items, purchases over limit, fraudulent use of a debit card, late presentations of sales slips, unpresented credit on sales returns and other adjustments as specified under the rules and regulations of MasterCard or Visa. If Purchaser cannot recover on any such charge-back items after making a good faith effort to do so, Seller shall reimburse Purchaser for such items upon assignment of such items by Purchaser to Seller. Purchaser’s good faith effort to recover on any such items shall not require that Purchaser take any legal action against any person.
H. Seller agrees that, following the date of this Agreement, Seller will not, without the consent of Purchaser, alter or change any business practice at the Branch related to overdrawn deposit accounts, except in connection with a change applicable to Seller generally and which is no more permissive than the current policy.
I. Purchaser and Seller agree that all amounts required to be remitted by either such party to the other party hereto pursuant to this Section 7.5 shall be settled on a daily basis. Any amounts to be paid by Seller to Purchaser shall be netted daily against any amounts to be paid by Purchaser to Seller, such that only one amount, representing the net amount due, shall be transferred on a daily basis by the party with the higher amount of remittances for such day in immediately available funds. Purchaser shall provide Seller with a daily net settlement figure for all such transactions from the immediately preceding business day by 12:00 noon Eastern Time on each business day and the party obligated to remit any funds thereunder shall do so in immediately available funds by wire transfer by 2:00 p.m. Eastern Time on such day or by any other method of payment agreed upon by the parties; any such settlement shall be provisional pending receipt or review by the parties of the physical items relating to such settlement.
J. If any uncollected item credited to a Deposit at the time of the transfer of such Deposit to Purchaser is subsequently returned resulting in an overdraft to the Deposit account, Seller shall pay to Purchaseragrees, not later than two business days after demand, to pay to Purchaser the amount of such uncollected item; provided, however, that Purchaser shall, upon Seller's making payment for such uncollected item, deliver such uncollected item to Seller and shall assign to Seller any and all rights which Purchaser may have or obtain in connection with such returned item.
K. If the balance due on any Purchased Loan transferred and assigned to Purchaser pursuant to the terms of the Agreement has been reduced as a result of the receipt of an item or items prior to the Closing Date, which are returned after the Closing Date as uncollected, the asset value represented by the Purchased Loan transferred shall be correspondingly increased, and an amount in cash equal to such increase shall be paid by Purchaser to Seller within two business days after receipt of such returned item.
L. If Seller receives payments, notices or correspondence with respect to any Purchased Loan after the Closing Date, Seller shall remit such payments, notices or correspondence to Purchaser in the same form received by Seller.
M. For a period of 30 days after the Closing Date, Seller agrees that, upon demand of Purchaser, Seller shall immediately pay promptly to Purchaser the overdraft amount (negative balance) of any of the Deposits.
N. For a period from of 60 days after the Closing Date until the next calendar quarter-endDate, Seller agrees that, for any credit-related concern or reasonreason whatsoever, Purchaser may return to Seller for repurchase within three business days of Purchaser’s submission any of the Purchased Loans (such returned Purchased Loans to be collectively referred to herein as “Returned Loans”). The Returned Loans shall be repurchased at a price equal to 99.0% of the amount of the unpaid principal of the Returned Loan and Accrued Loan Interest on it at Closing, as adjusted for interim payments on the Returned Loans returned loans since the Closing Date; provided, however, that (i) the aggregate principal amount of the Returned Loans shall not exceed 10% of the aggregate principal amount of the Purchased Loans on the Closing Date; and (ii) Purchaser shall deliver any such Returned Loans and their documentation to Seller and assign to Seller any and all rights which Purchaser may have or obtain in connection therewith. .
O. Purchaser shall file Form 1099s for the Deposits covering the year in which the Closing occurs only from the Closing Date to the end of that year. Seller shall file Form 1099s for the Deposits from the first of the year in which the Closing occurs through the close of business the day before the Closing Date.
Appears in 1 contract
Samples: Purchase and Assumption Agreement (Heritage Financial Group)
Transactions After Closing Date. Seller A. Following the Closing, Purchaser agrees to pay in accordance with law all checks, drafts and Purchaser hereby agree that, except as provided below or otherwise agreed in writing withdrawal orders which are properly drawn by the parties, for a period of 90 days after the Closing Date:
A. Subject to Section 7.5I, Seller shall transfer, convey, and assign to Purchaser on the date of its receipt all deposits received by Seller after the Closing Date for credit to any of the accounts for the Deposits, and all payments received by Seller after the Closing Date for application to or on account of any of the Assets.
B. Seller shall notify Purchaser on the date of its receipt of the return to it of any items deposited in, or cashed at, the Branches prior to the Closing Date and shall expeditiously forward any such items to Purchaser. If Purchaser cannot recover on such returned items after making a good faith effort to do so, Seller shall reimburse Purchaser for such return items upon assignment of such items by Purchaser to Seller. Purchaser’s good faith effort shall not include institution of any legal action depositors with respect to the Deposits assumed by Purchaser, duly endorsed (or for which necessary endorsements are deemed supplied by applicable law) and otherwise properly payable, in light of credit balances and any overdraft privileges applicable to such recovery.
C. To the extent permitted by law depositors, and the applicable contracts for the Deposits, Purchaser agrees that it will honor all properly payable checks, drafts, withdrawal orders and similar items drawn on Seller’s forms against the Deposits, which are presented to Purchaser by mail, over its counters, or through the check clearing houses.
D. Provided that such items have been timely delivered system of the banking industry, and in all other respects to Purchaser by Sellerdischarge, Purchaser shall pay in the items referred to in Section 7.5C usual course of the banking business, the duties and obligations of Seller with respect to the extent of the balance of funds in the accounts. Seller shall deliver such checks balances due and drafts to Purchaser at Purchaser’s address set forth in Section 9.9, no later than 4:00 p.m. Eastern Time one business day following the day they were received by Seller. Purchaser shall promptly reimburse Seller on a daily basis for the amount of all such checks and drafts paid by Seller. The parties shall share equally the cost of delivery of any items under this Section 7.5D.
E. As of the Closing Date, Purchaser will notify all Automated Clearing House (“ACH”) originators of the transfers and assumptions made pursuant owing to the Agreement; provided, however, that Seller may, at its option, notify all such originators itself (on behalf of depositors whose Deposits are assumed by the Purchaser). B. For a period of 90 ninety (90) days beginning on after the Closing Date, Seller will honor all ACH items related agrees to accounts for Deposits assumed under this Agreement, which are routed or presented to Seller. Seller will make no charge to Purchaser for honoring such items, and will transmit such ACH data to Purchaser on a daily basis. If Purchaser cannot receive an electronic transmission, Seller will make available daily to Purchaser at Seller’s operations center receiving items from the ACH tapes containing such ACH data. Seller and Purchaser shall make arrangements to provide act as Purchaser's limited correspondent for the daily settlement with immediately available funds by Purchaser processing of any ACH items honored by Sellerchecks, drafts and Seller shall be held harmless and indemnified by Purchaser for acting in accordance with this arrangement to accept ACH items other than ACH items initiated by Seller. Seller shall settle any and all ATM transactions effected on withdrawal orders drawn before or before the Closing Date, but processed after the Closing Dateon the draft or check forms provided by the Seller on accounts assumed by Purchaser hereunder, as soon as practicable. and Purchaser will honor and Seller agree pay all such checks, drafts, and withdrawals orders, if duly endorsed and to remit the total net balance extent that the credit balances or overdraft privileges of the drawers or makers permit, provided that the Seller's sole responsibility shall be to actually deliver at Seller's cost to a location reasonably designated by Purchaser in the State of Washington all such transactions checks, drafts and withdrawal orders to Seller Purchaser or Purchaser, 's agent at such times and places as the case may be, on parties so shall agree but in no event later than the same date the transactions are settledday Seller receives such checks, drafts and withdrawal orders from its agent or processor. In instances in which an owner of a Deposit made an assertion of error regarding an account pursuant to the Electronic Funds Transfer Act and Federal Reserve Board Regulation E, and Seller, prior to the Closing Date, recredited the disputed amount to the relevant account during the conduct of the error investigation, Purchaser agrees to comply indemnify Seller for third party costs incurred by Seller with a written request from Seller respect to debit such account in a stated amount and remit such amount to Sellerthis paragraph, including charges to the extent Seller through the check clearing system of the balance banking industry which result from Next Page 15 check, draft or withdrawal forms of funds available in the accounts.
F. Seller shall provide Purchaser with a listing of each stop payment order in effect as to a Deposit or Purchased Loan on the Closing Date. Purchaser shall honor all stop payment orders relating to the Deposits or the Purchased Loans initiated prior to the Closing and reflected in the magnetic tape made available by Seller to Purchaser on the Closing Date. In the event that Purchaser shall make any payment in violation of a stop payment order initiated prior to the Closing but not reflected in stop payment documents and the magnetic tape made available by Seller to Purchaser prior to such payment, then Seller shall indemnify, hold harmless and defend Purchaser from and against all claims, losses and liabilities, including reasonable attorneys’ fees and expenses, arising out of any such payment. In the event that Purchaser shall make any payment in violation of a stop payment order initiated prior to the Closing that is reflected in stop payment documents and the magnetic tape made available by Seller to Purchaser prior to such payment, then Purchaser shall indemnify, hold harmless and defend Seller from and against all claims, losses and liabilities, including reasonable attorneys’ fees and expenses, arising out of any such payment.
G. After the Closing Date, Purchaser shall process any and all “charge-back items” received subsequent to being used after the Closing Date but arising prior thereto against any amount for Deposits, as covered under applicable charge-back regulations. “Charge-back items” shall include, but not be limited to, disputed items, purchases over limit, fraudulent use of a debit card, late presentations of sales slips, unpresented credit on sales returns and other adjustments as specified under the rules and regulations of MasterCard or Visa. If Purchaser cannot recover on any such charge-back items after making a good faith effort to do so, Seller shall reimburse Purchaser for such items upon assignment of such items by Purchaser to Seller. Purchaser’s good faith effort to recover on any such items shall not require that Purchaser take any legal action against any person.
H. Seller agrees that, following the date of this Agreement, Seller will not, without the consent of Purchaser, alter or change any business practice at the Branch related to overdrawn deposit accounts, except in connection with a change applicable to Seller generally and which is no more permissive than the current policy.
I. Purchaser and Seller agree that all amounts required to be remitted by either such party to the other party hereto pursuant to this Section 7.5 shall be settled on a daily basis. Any amounts to be paid by Seller to Purchaser shall be netted daily against any amounts to be paid by Purchaser to Seller, such that only one amount, representing the net amount due, shall be transferred on a daily basis by the party with the higher amount of remittances for such day in immediately available fundsdepositors whose accounts are assumed hereunder. Purchaser shall provide Seller with a daily net settlement figure for all such transactions from the immediately preceding business day by 12:00 noon Eastern Time on each business day and the party obligated to remit any funds thereunder shall do so in immediately available funds by wire transfer by 2:00 p.m. Eastern Time on such day or by any other method of payment agreed upon by the parties; any such settlement shall be provisional pending receipt or review by the parties of the physical items relating to such settlement.
J. C. If any uncollected item credited to a Deposit at the time of the transfer of such Deposit to Purchaser is subsequently returned resulting in an overdraft to the Deposit account, Seller shall pay to Purchaseragrees, not later than two (2) business days after demand, to pay to Purchaser the amount of such uncollected item; provided, however, that Purchaser shall, upon Seller's making payment for such uncollected item, deliver such uncollected item to Seller and shall assign to Seller any and all rights which Purchaser may have or obtain in connection with such returned item.
K. . D. If the balance due on any Purchased Loan transferred and assigned to Purchaser pursuant to the terms of the Agreement has been reduced as a result of the receipt of an item or items prior to the Closing Date, which are returned after the Closing Date as uncollected, the asset value represented by the Purchased Loan transferred shall be correspondingly increased, and an amount in cash equal to such increase shall be paid by Purchaser to Seller within two (2) business days after receipt of such returned item.
L. . E. If Seller receives payments, notices or correspondence payment with respect to any Purchased Loan after the Closing Date, Seller shall remit such payments, notices or correspondence payments to Purchaser in the same form received by Seller.
M. that Seller receives such payments. F. For a period of 30 thirty (30) days after the Closing Date, Seller agrees that upon demand of Purchaser, Purchaser Seller shall immediately pay promptly to Purchaser the overdraft amount (negative balance) of any of the Depositstransferred Deposit.
N. For a period from the Closing Date until the next calendar quarter-end, Seller agrees that, for any credit-related concern or reason, Purchaser may return to Seller for repurchase within three business days of Purchaser’s submission any of the Purchased Loans (such returned Purchased Loans to be collectively referred to herein as “Returned Loans”). The Returned Loans shall be repurchased at a price equal to 99.0% of the amount of the unpaid principal of the Returned Loan and Accrued Loan Interest on it at Closing, as adjusted for interim payments on the Returned Loans since the Closing Date; provided, however, that (i) the aggregate principal amount of the Returned Loans shall not exceed 10% of the aggregate principal amount of the Purchased Loans on the Closing Date; and (ii) Purchaser shall deliver any such Returned Loans and their documentation to Seller and assign to Seller any and all rights which Purchaser may have or obtain in connection therewith. O. Purchaser shall file Form 1099s for the Deposits covering the year in which the Closing occurs only from the Closing Date to the end of that year. Seller shall file Form 1099s for the Deposits from the first of the year in which the Closing occurs through the close of business the day before the Closing Date.
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Samples: Purchase and Assumption Agreement (Sound Financial, Inc.)
