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BRANCH PURCHASE AND ASSUMPTION AGREEMENT
between
GOLD BANK
and
OLNEY BANCSHARES OF TEXAS, INC.
OKLAHOMA CITY, EL RENO, KINGFISHER, HENNESSEY AND XXXX BRANCHES
January 12, 2005
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TABLE OF CONTENTS
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Page
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ARTICLE I PURCHASE AND SALE OF ASSETS AND ASSUMPTION OF
LIABILITIES...................................................1
Section 1.01 Purchase of Assets............................................1
Section 1.02 Assumption of Liabilities.....................................4
Section 1.03 Names and Marks...............................................4
ARTICLE II CLOSING, CALCULATION OF PURCHASE PRICE AND CLOSING
DELIVERIES....................................................5
Section 2.01 The Closing...................................................5
Section 2.02 The Closing Date..............................................5
Section 2.03 Retirement Accounts...........................................5
Section 2.04 Calculation and Payment of Purchase Price.....................5
Section 2.05 Allocation of Purchase Price..................................7
Section 2.06 Prorations....................................................7
Section 2.07 Closing Deliveries............................................7
ARTICLE III REPRESENTATIONS AND WARRANTIES OF SELLER......................9
Section 3.01 Organization..................................................9
Section 3.02 Authorization.................................................9
Section 3.03 Non-Contravention............................................10
Section 3.04 Compliance with Law..........................................10
Section 3.05 Regulatory Enforcement Actions...............................10
Section 3.06 Litigation...................................................10
Section 3.07 Title to Real Property and Other Assets......................10
Section 3.08 Loans, Deposits and Book Values..............................10
Section 3.09 Brokerage11..................................................11
Section 3.10 Statements True and Correct..................................11
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF BUYER......................11
Section 4.01 Organization.................................................11
Section 4.02 Authorization................................................11
Section 4.03 Non-Contravention............................................11
Section 4.04 Consents to Transaction......................................11
Section 4.05 Litigation...................................................12
Section 4.06 Financial Information........................................12
Section 4.07 Compliance with Capital Adequacy and Debt Guidelines.........12
Section 4.08 Community Reinvestment Act...................................12
Section 4.09 Brokerage....................................................12
Section 4.10 Statements True and Correct..................................13
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ARTICLE V AGREEMENTS OF THE SELLER.....................................13
Section 5.01. Business in Ordinary Course..................................13
Section 5.02. Breaches.....................................................13
Section 5.03. Consents to Assumed Contracts................................13
Section 5.04. Title Commitment.............................................14
Section 5.05. Consummation of Agreement....................................14
Section 5.06. Access to Information........................................14
Section 5.07. Loan Participations..........................................14
ARTICLE VI AGREEMENTS OF THE BUYER......................................15
Section 6.01. Regulatory Approvals.........................................15
Section 6.02. Breaches.....................................................15
Section 6.03. Consummation of Agreement....................................15
Section 6.04. Access to Information........................................15
ARTICLE VII CONDITIONS PRECEDENT TO THE BRANCH PURCHASE AND ASSUMPTION...16
Section 7.01. Conditions to Seller's Obligations...........................16
Section 7.02. Conditions to Buyer's Obligations............................16
ARTICLE VIII TERMINATION OR ABANDONMENT...................................17
Section 8.01. Mutual Agreement.............................................17
Section 8.02. Breach of Representations or Agreements......................17
Section 8.03. Failure of Conditions........................................17
Section 8.04. Approval Denial..............................................17
Section 8.05. Automatic Termination........................................18
ARTICLE IX TRANSITIONAL AND POST-CLOSING MATTERS........................18
Section 9.01. Notification to Branch Office Customers......................18
Section 9.02. Payment of Instruments.......................................19
Section 9.03. Statements...................................................19
Section 9.04. Limited Correspondent........................................19
Section 9.05. Uncollected Items............................................19
Section 9.06. ACH..........................................................19
Section 9.07. Loans and Deposits...........................................20
Section 9.08. Credit Life Insurance........................................20
Section 9.09. Non-Solicitation.............................................20
Section 9.10. Maintenance of Records.......................................20
Section 9.11. Information Reporting........................................21
Section 9.12. Transition...................................................21
Section 9.13. Overdrafts...................................................21
Section 9.14. Banking Market...............................................21
ARTICLE X INDEMNIFICATION..............................................22
Section 10.01.Indemnification of Buyer.....................................22
Section 10.02.Indemnification of Seller....................................22
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Section 10.03.Indemnification Limits.......................................23
Section 10.04.Indemnification Procedures...................................23
ARTICLE XI GENERAL......................................................24
Section 11.01.Confidential Information.....................................24
Section 11.02.Publicity....................................................24
Section 11.03.Return of Documents..........................................24
Section 11.04.Notices......................................................24
Section 11.05.Expenses.....................................................25
Section 11.06.Liabilities..................................................26
Section 11.07.Nonsurvival of Representations, Warranties and Agreements....26
Section 11.08.Entire Agreement.............................................26
Section 11.09.Headings and Captions........................................26
Section 11.10.Waiver, Amendment or Modification............................26
Section 11.11.Rules of Construction........................................26
Section 11.12.Counterparts.................................................26
Section 11.13.Successors and Assigns.......................................26
Section 11.14.Governing Law; Assignment....................................27
Section 11.15.Permitted Exceptions.........................................27
Section 11.16.Time of Essence..............................................27
Schedule 1.01(c)(i) - ATM Facilities
Schedule 1.01(c)(ii) - Certain Excluded Personal Property
Schedule 1.01(d)(iii) - Excluded Loans
Schedule 101(d)(vi) - Other Retained Loans
Schedule 4.06 - Description of Financing
Exhibit A - Form of Assignment and Assumption of Deposit Liabilities Agreement
Exhibit B - Form of Assignment and Assumption of Contracts Agreement
Exhibit C - Form of Xxxx of Sale Exhibit D - Form of Assignment, Transfer and
Appointment of Successor Trustee for XXX Accounts
Exhibit E - Form of Limited Power of Attorney
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BRANCH PURCHASE AND ASSUMPTION AGREEMENT
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THIS BRANCH PURCHASE AND ASSUMPTION AGREEMENT (this "Agreement") is made
and executed as of January 12, 2005, by and between Gold Bank, a Kansas banking
corporation with its main office located in Leawood, Kansas ("Seller") and Olney
Bancshares of Texas, Inc., a Texas corporation ("Buyer") (as used herein, unless
the context clearly indicates otherwise, the term "Buyer" shall include any
wholly-owned existing, or newly acquired or chartered, subsidiary bank to which
Olney Bancshares of Texas, Inc. may assign its rights under this Agreement).
RECITALS
A. Seller operates branch banking offices located at (i) 000 Xxxxx Xxxx
Xxxxxx, Xx Xxxx, Xxxxxxxx and 0000 Xxxxxxx Xxxx Xxxx, Xx Xxxx, Xxxxxxxx
(collectively, the "El Reno Branches"); (ii) 000 Xxxxx Xxxxxxxx, Enid, Oklahoma
(the "Xxxx Xxxxxx"); (iii) 000 Xxxxx Xxxx Xxxxxx, Xxxxxxxxx, Oklahoma (the
"Hennessey Branch"); (iv) 0000 Xxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx and 000 Xxxxx
Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx (collectively, the "Kingfisher Branches"); and
(v) 00000 Xxxxxx Xxxxxx Xxxxx, Xxxxxxxx Xxxx, Xxxxxxxx (the "Oklahoma City
Branch") (all together, the "Branch Offices").
B. Seller desires to sell and Buyer desires to acquire the Branch Offices,
and, in that regard, Seller desires to sell and Buyer desires to purchase and
acquire certain assets related thereto located at the Branch Offices.
C. Seller desires to transfer and Buyer desires to assume certain deposit
accounts maintained at or for the Branch Offices and certain other liabilities
pertaining to the continuing operations thereof.
AGREEMENT
ACCORDINGLY, in consideration of the premises and the mutual covenants and
agreements set forth in this Agreement, the parties agree as follows:
ARTICLE I
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PURCHASE AND SALE OF ASSETS AND ASSUMPTION OF LIABILITIES
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Section 1.01. Purchase of Assets. Upon the terms and subject to the
conditions and representations set forth herein, Seller shall sell, convey,
assign and transfer to Buyer, and Buyer shall purchase and accept from Seller,
all right, title and interest of Seller in and to the following assets
(collectively, the "Assets") as of the close of business on the Closing Date (as
defined in Section 2.02 below):
(a) Books and Records. All books, records and files directly
relating to the Assets and the Assumed Liabilities (as defined in Section 1.02
below) being transferred to Buyer hereunder (collectively, the "Records").
(b) Real Property. All of Seller's interest in the real estate located
at (i) 000 Xxxxx Xxxx Xxxxxx, Xx Xxxx, Xxxxxxxx; (ii) 0000 Xxxxxxx Xxxx Xxxx, Xx
Xxxx, Xxxxxxxx; (iii) 000 Xxxxx Xxxxxxxx, Xxxx, Xxxxxxxx; (iv) 000 Xxxxx Xxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxx; (v) 0000 Xxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx; (vi) 000
Xxxxx Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx; and (vii) 00000 Xxxxxx Xxxxxx Xxxxx,
Xxxxxxxx Xxxx, Xxxxxxxx, upon which the Branch Offices are operated, including
the buildings and other improvements thereto (collectively, the "Real
Property").
(c) Personal Property. The furniture, fixtures, equipment,
improvements and other items of tangible personal property located at the Branch
Offices as of the close of business on the Closing Date, together with sign
structures, all personal property used in connection with the safe deposit box
business being transferred to Buyer hereunder (exclusive of the contents of
leased safe deposit boxes), and the automatic teller machine facilities
described in Schedule 1.01(c)(i) hereto (the "ATMs") (collectively, the
"Personal Property"); provided, however, that the personal property shall not
include (i) certain equipment related to the centralized data processing center
maintained at the branch located at 000 X. Xxxx, Xxxxxxxxxx as set forth on
Schedule 1.01(c)(ii) hereto and (ii) any additional equipment which Buyer and
Seller mutually agree in writing prior to the Closing Date to exclude. If, prior
to the Closing Date, any item of Personal Property is stolen, destroyed or
otherwise lost, such item shall be excluded from the sale contemplated hereby,
and the term "Personal Property" as used herein shall exclude any such item(s).
If, prior to the Closing Date, any item of Personal Property is damaged by fire
or other casualty, such item(s), if reasonably repairable, shall be sold to
Buyer (in accordance with the provisions hereof) and the insurance proceeds
relating to such item shall be assigned to Buyer, it being understood that if
any such item is not reasonably repairable, it shall be excluded from the sale
contemplated hereby.
(d) Loans. All loans of Seller attributable to the Branch Offices (the
"Loans"); provided, that Loans:
(i) shall not include any loan that is repaid in full as to
principal and interest prior to the Closing Date;
(ii) shall include all Loans attributable to the Branch Offices,
whether or not funded, carried on the books of the
Branch Offices, together with all of Seller's right,
title and interest in any collateral securing such
loans; and shall include Loans originated both before
and after the date of this Agreement, provided Buyer has
had an opportunity to review, after the date of this
Agreement and prior to the Closing, any Loans in excess
of $100,000 which (A) were originated by the Branch
Offices after December 17, 2004, the date Buyer
completed its initial due diligence review ("New
Loans"), and (B) were attributed to the Branch Offices
as of December 17, 2004 for which Seller increased the
principal balance (excluding draws on committed lines of
credit) by more than $100,000 after December 17, 2004,
over the principal balance as of December 17, 2004
("Loan Increases"), which New Loans and Loan Increases
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Seller and Buyer agree to negotiate in good faith to
include after such review;
(iii) shall not include the excluded loans identified by Buyer on
Schedule 1.01(d)(iii) hereto, the total principal amount of
which not to exceed $5,000,000;
(iv) shall not include any loan guaranteed by the Farm Service
Agency ("FSA") or subject to the FSA's interest-assist
program (the "FSA Loans");
(v) in addition to FSA Loans, shall not include any other loan
made to a FSA Borrower (as defined below) ("FSA Borrower
Affiliated Loans");
(vi) shall not include any loan or letters of credit set forth
on Schedule 1.01(d)(vi) hereto;
(vii) shall include all deposit-related overdrafts, including
overdrafts pursuant to an overdraft protection plan, if
any, authorized and maintained on the books of the Branch
Offices in association with Seller's existing policy
regarding overdrafts other than overdrafts related to an
FSA Borrower; and
(viii) shall include all fully charged-off assets associated with
the Branch Offices, provided, the charged-off assets shall
not include any charged-off assets which Buyer elects in
writing prior to the Closing not to receive.
All Loans shall be assigned to Buyer without recourse against Seller and without
any warranties or representations as to their collectibility or the
creditworthiness of any of the obligors of such Loans.
All loans that are excluded from the definition of "Loans" pursuant to this
Section 1.01(d) are referred to herein as the "Excluded Loans"). As used in this
Agreement, the term "FSA Borrower" shall mean a person or entity that is a
borrower (and any affiliate of such borrower) under a loan made by Seller to
such borrower that is guaranteed by the FSA or subject to the FSA
interest-assist program.
(e) Assumed Contracts. Seller's rights under, or created by, the
Assumed Contracts (as defined in Section 1.02(b) below).
(f) Cash on Hand. All teller working cash, xxxxx cash and vault cash
at the Branch Offices, together with all cash at the ATMs, as of the close of
business on the Closing Date (the "Cash on Hand").
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(g) Safe Deposit Box Business. All safe deposit box business located
at the Branch Offices as of the close of business on the Closing Date (the "Safe
Deposit Box Business"). The Safe Deposit Box Business includes, without
limitation, safe deposit box contracts, the removable safe deposit boxes
(exclusive of the contents of leased safe deposit boxes) and safe deposit stacks
in the vault and all keys and combinations thereto.
Section 1.02. Assumption of Liabilities. Upon the terms and subject to the
conditions set forth herein, Seller shall transfer and assign to Buyer, and
Buyer shall assume from Seller and agree to pay, perform and discharge, by
documentation reasonably satisfactory as to form and substance to Seller, as of
the close of business on the Closing Date, the following liabilities, and none
other (collectively, the "Assumed Liabilities"):
(a) Deposit Liabilities. All deposit liabilities maintained at the
Branch Offices, in accordance with the terms of the agreements pertaining to
such deposits, as shown on the books and records of Seller as of the close of
business on the Closing Date, including accrued but unpaid interest thereon
through the Closing Date, except as provided in Sections 1.02(c) and 2.03(c)
hereof (the "Deposits" or "Deposit Liabilities"). As used herein, the term
"Deposit Liabilities" shall include all of the deposit products offered by
Seller from the Branch Offices, including, without limitation, passbook
accounts, statement accounts, checking accounts, money market accounts, and
certificates of deposit.
(b) Assumed Contracts. The obligations and liabilities of Seller
arising from and after the Closing Date under any and all contracts and leases
necessary for the operation or maintenance of the Branch Offices that are
assignable by Seller to Buyer, (collectively, the "Assumed Contracts"),
including without limitation the lease for the Oklahoma City Branch, but
excluding any contracts with respect to originating or servicing FSA loans.
(c) Liabilities Not Assumed by Buyer. Other than those liabilities
specifically assumed in Sections 1.02(a), 1.02(b) and 2.03 hereof, Buyer shall
not assume (i) any Deposit Liabilities of any FSA Borrower or (ii) any
liabilities of Seller, whether known or unknown, disclosed or undisclosed,
contingent or otherwise, which have arisen or may arise or be established in
connection with the conduct of business at the Branch Offices prior to the
Closing Date, including without limitation any claims or liabilities arising
from or in connection with any FSA Loans (collectively, the "Excluded
Liabilities").
Section 1.03. Names and Marks. Seller is not selling, assigning,
conveying, transferring or delivering, nor shall Buyer acquire, any rights or
interest in or to: (a) the name "Gold Bank" or any derivation thereof, or (b)
any logos, service marks or trademarks, advertising materials or slogans or any
similar items used by Seller or any affiliate of Seller in connection with its
business, whether or not such is or was copyrighted or registered. Preceding the
Closing Date, Seller shall begin the removal from the Branch Offices of signs,
logos and other insignia identifying or identified with Seller. No signs, logos
or insignia identifying or identified with Buyer may be installed in or affixed
to the premises until after the close of business on the last business day
preceding the Closing. On and after the Closing Date, Buyer shall not use the
name or service xxxx of Seller in any manner in connection with the operation of
the Branch Offices, except in accordance with the provisions of Section 9.01
hereof. No activity conducted by Buyer
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on or after the Closing Date shall state or imply that Seller is in any way
involved as a partner, joint venturer or otherwise in the business of Buyer.
Buyer shall return to Seller any remaining signs, logos and insignia of Seller
removed by Buyer from the Branch Offices after Closing.
ARTICLE II
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CLOSING, CALCULATION OF PURCHASE PRICE AND CLOSING DELIVERIES
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Section 2.01. The Closing. The closing of the purchase and assumption
transaction contemplated by this Agreement (the "Closing") shall take place at
the Oklahoma City Branch, or at such other location as the parties may agree, at
10:00 a.m. Central Time on the Closing Date described in Section 2.02 of this
Agreement.
Section 2.02. The Closing Date. The Closing shall take place on a date
mutually agreed upon, in writing, by the parties, but in any case, on or before
the thirty-first (31st) day following the receipt of all approvals from any
regulatory authorities having jurisdiction over the transaction contemplated
hereby, and the satisfaction of all conditions and the lapse of all applicable
waiting periods associated therewith. The purchase and assumption transaction
contemplated by this Agreement shall become effective at the close of business
on the day of the Closing (the "Closing Date").
Section 2.03. Retirement Accounts.
(a) At the Closing, Seller shall resign as trustee and custodian with
respect to any individual retirement account ("XXX Account") as to which Seller
is trustee or custodian and as to which one or more of the assets included
therein is a deposit included within the Deposits transferred to Buyer on the
Closing Date, other than any XXX Account associated with any FSA Borrower, which
accounts shall remain with Seller. At the Closing, Seller shall designate or
appoint Buyer as successor trustee or custodian under each such XXX Account.
(b) Buyer covenants and agrees that it will, following its designation
or appointment as successor trustee or custodian under the XXX Accounts,
promptly and faithfully perform, fulfill, and discharge each of the obligations
required to be performed by the trustee or custodian with respect to such
accounts pursuant to law, or pursuant to the governing documents establishing
such XXX Account.
(c) If an individual depositor holding an XXX Account refuses to
accept the designation or appointment of Buyer as successor trustee or custodian
with respect to any such XXX Account, Buyer shall promptly so inform Seller, and
none of the deposits contained in such XXX Account shall be treated as Deposit
Liabilities hereunder, but shall remain the liability and obligation of Seller.
Section 2.04. Calculation and Payment of Purchase Price. The calculation
and payment of the Purchase Price (defined herein) shall be made as follows:
(a) Buyer shall pay to Seller an amount of cash (the "Purchase Price")
equal to:
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(i) the Acquisition Value (defined herein) of the Assets;
(ii) plus, a premium of $34,000,000.00 (the "Premium");
(iii) plus, the net amount of any prorated items required by
Section 2.06 hereof owed by Buyer to Seller;
(iv) minus, the aggregate amount of principal and accrued
interest on the Deposit Liabilities;
(v) minus, the net amount of any prorated items required by
Section 2.06 hereof owed by Seller to Buyer.
If the Purchase Price calculated pursuant to the foregoing formula is a negative
amount, then Seller shall pay to Buyer the absolute value of such Purchase
Price.
(b) On the Closing Date, Buyer shall transfer to Seller, by wire
transfer in immediately available funds to an account designated by Seller, an
amount which Seller and Buyer estimate to be the amount of the Purchase Price,
which estimated amount shall be based upon actual or good faith estimates of the
foregoing amounts as of the close of business on the third business day prior to
the Closing Date (the "Estimated Purchase Price").
(c) On the fifteenth (15th) business day after the Closing Date or
such earlier date as may be agreed to in writing by the parties (the "Adjustment
Payment Date"), an adjustment payment (the "Adjustment Payment") shall be made
either by Seller to Buyer or by Buyer to Seller, as appropriate, so as to
correct any discrepancy between the amount of the Estimated Purchase Price paid
under the preceding paragraph and the Purchase Price calculated in accordance
with this Section 2.04. Seller shall provide to Buyer a closing statement which
reflects the calculation of the Adjustment Payment relative to the Estimated
Purchase Price. The Adjustment Payment due to either party pursuant to this
paragraph shall be paid to such party on the Adjustment Payment Date by the
other party by wire transfer in immediately available funds to an account
designated by the payee party, with interest thereon from the Closing Date
through the Adjustment Payment Date at a rate equal to the effective Federal
Funds rate as published by the Federal Reserve.
(d) For purposes of this Agreement, the "Acquisition Value" of the
Assets shall be the sum of the following:
(i) the aggregate outstanding principal and earned but unpaid
interest on the Loans, together with any late charges
accrued thereon as of the close of business on the Closing
Date, determined in accordance with generally accepted
accounting principals consistently applied ("GAAP");
(ii) the Cash on Hand as of the close of business on the Closing
Date;
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(iii) plus, the net book value of the Real Property and Personal
Property on Seller's books as of the end of the month
immediately preceding the month in which the Closing Date
occurs, determined in accordance with GAAP;
(iv) minus, $400,000 (the agreed loan loss reserve transfer).
Section 2.05. Allocation of Purchase Price. The Purchase Price, as
adjusted in accordance with Section 2.04(c) above, and the liabilities assumed
by Buyer pursuant to Section 1.02 hereof shall be allocated on an allocation
schedule to be agreed upon by Buyer and Seller prior to the Closing Date. The
allocation is intended to comply with the allocation method required by Section
1060 of the Internal Revenue Code of 1986, as amended. The parties shall (i)
each report the federal, state and local and other tax consequences of the
purchase and assumption contemplated hereby (including the filing of Internal
Revenue Service Form 8594) in a manner consistent with such allocation schedule
and (ii) take no position in any tax filing, return, proceeding, audit or
otherwise which is inconsistent with such allocation.
Section 2.06. Prorations. The parties intend that Seller shall operate for
its own account the business conducted at the Branch Offices until the close of
business on the Closing Date, and that Buyer shall operate such business for its
own account on and after the Closing Date. Thus, except as otherwise
specifically provided in this Agreement, items of expense directly attributable
to the operation of the Branch Offices (which shall not include any general
overhead expenses of Seller) shall be prorated as of the close of business on
the Closing Date, whether or not such adjustment would normally be made as of
such time, including, without limitation, (i) telephone, electric, gas, water,
and other utility services (to the extent it is not possible to transfer such
services into the name of Buyer as of the Closing Date), (ii) taxes associated
with the Real Property and Personal Property, (iii) assessments (including,
without limitation, assessments attributable to FDIC deposit insurance), (iv)
payments due on Assumed Contracts, and (v) similar expenses related to the
Assets transferred hereunder. To the extent any such item has been prepaid by
Seller for a period extending beyond the Closing Date, there shall be a
proportionate adjustment in favor of Seller. Notwithstanding the foregoing, any
unearned non-interest income associated with the Safe Deposit Box Business shall
not be prorated between the parties as of the Closing Date.
Section 2.07. Closing Deliveries.
(a) Seller's Closing Deliveries. At the Closing, Seller shall deliver
to Buyer:
(i) a Certificate or Certificates signed by an appropriate
officer of Seller stating that (A) each of the
representations and warranties contained in Article Three
is true and correct in all material respects at the time
of the Closing with the same force and effect as if such
representations and warranties had been made at Closing,
and (B) all of the conditions set forth in Sections 7.02(b)
and 7.02(d), insofar as Section 7.02(d) pertains to
approvals required to
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be obtained by Seller, have been satisfied or waived
as provided therein;
(ii) evidence of payment to Buyer, by wire transfer in
immediately available funds to an account designated by
Buyer, of the Estimated Purchase Price;
(iii) an executed Assignment and Assumption of Deposit
Liabilities Agreement in substantially the form set
forth in Exhibit A hereto;
(iv) an executed Assignment and Assumption of Contracts
Agreement in substantially the form set forth in Exhibit
B hereto;
(v) an executed Xxxx of Sale in substantially the form set
forth in Exhibit C hereto;
(vi) executed special warranty deeds, (subject to Permitted
Exceptions, as such term is defined in Section 11.15
hereof) conveying the Real Property to Buyer;
(vii) an executed Assignment, Transfer and Appointment of
Successor Trustee for XXX Accounts in substantially the
form set forth in Exhibit D;
(viii) an executed Limited Power of Attorney in substantially
the form set forth in Exhibit E;
(ix) such other bills of sale, assignments, and other
instruments and documents as counsel for Buyer may
reasonably require as necessary or desirable for
transferring, assigning and conveying to Buyer good,
marketable and insurable title to the Assets;
(x) listings of the Deposit Liabilities as of the Closing
Date (the "Deposit Listings") on magnetic tape or
utilizing such other method of information transfer as
the parties may mutually agree, which Deposit Listings
shall include, for each account, the account number,
outstanding principal balance, and accrued interest;
(xi) such Records as are capable of being delivered to Buyer,
which Records (other than the current promissory notes
related to the Loans which shall be originals) may be
delivered by delivery of imaged, photocopies or other
non-original and non-paper media in lieu of original
copies in the event the originals or hard copies of such
Records are not reasonably available to Seller for
delivery to Buyer; and
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(xii) and assignment of Seller's lease for the Oklahoma City
Branch, in the form reasonably acceptable to Buyer.
(b) Buyer's Closing Deliveries. At the Closing, Buyer shall deliver to
Seller:
(i) a Certificate or Certificates signed by an appropriate
officer of Buyer stating that (A) each of the
representations and warranties contained in Article
Four is true and correct in all material respects at
the time of the Closing with the same force and effect
as if such representations and warranties had been
made at Closing, and (B) all of the conditions set forth
in Sections 7.01(b) and 7.01(d), insofar as Section
7.01(d) pertains to approvals required to be obtained
by Buyer, have been satisfied or waived as provided
therein;
(ii) a certified copy of the resolutions of the Board of
Directors of Buyer authorizing the execution of this
Agreement and the consummation of the purchase and
assumption transaction contemplated hereby;
(iii) an executed Assignment and Assumption of Deposit
Liabilities Agreement in substantially the form set
forth in Exhibit A hereto;
(iv) an executed Assignment and Assumption of Contracts
Agreement in substantially the form set forth in Exhibit
B hereto;
(v) an executed Assignment, Transfer and Appointment of
Successor Trustee for XXX Accounts in substantially the
form set forth in Exhibit C hereto; and
(vi) an executed Receipt for Personal Property.
ARTICLE III
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REPRESENTATIONS AND WARRANTIES OF SELLER
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Seller hereby makes the following representations and warranties:
Section 3.01. Organization. Seller is a banking corporation duly organized,
validly existing and in good standing under the laws of Kansas, and has the
corporate power to carry on its business as the same is being conducted at the
Branch Offices and to effect the transactions contemplated herein.
Section 3.02. Authorization. All necessary corporate actions have been
taken to authorize the execution of this Agreement on Seller's behalf by
Seller's duly authorized officers and the performance by Seller of its
obligations hereunder. This Agreement has been duly and validly executed and
delivered by Seller and constitutes a legal, valid and binding obligation of
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Seller, enforceable against Seller in accordance with its terms, subject to
bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally and to general principles of equity,
whether considered in a proceeding at law or in equity.
Section 3.03. Non-Contravention. The execution and delivery of this
Agreement by Seller does not, and, subject to the receipt of all required
approvals and consents, including, but not limited to, regulatory approvals and
landlord consents, the consummation of the transaction contemplated by this
Agreement will not, constitute a breach or violation of or default under any
law, rule, regulation, judgment, order, governmental permit or license,
agreement, indenture, or instrument to which Seller is a party, or by which it
or any of its assets or property is bound, which breach, violation, or default
would have a material adverse effect on the business or properties of the Branch
Offices after the Closing Date.
Section 3.04. Compliance with Law. Seller has all licenses, franchises,
permits and other governmental authorizations that are legally required to
enable it to conduct its business at the Branch Offices as presently conducted
in all material respects.
Section 3.05. Regulatory Enforcement Actions. Seller is not subject to, and
has not received any notice or advice that it may be subject to, any order,
agreement, memorandum of understanding or other regulatory enforcement action or
proceeding with or by any federal or state agency charged with the supervision
or regulation of banks or engaged in the insurance of deposits of banks or any
other governmental agency having supervisory or regulatory authority with
respect to Seller which could have a material adverse effect on the operation of
either of the Branch Offices after the Closing Date.
Section 3.06. Litigation. There is no litigation, claim or other
proceeding pending or, to the knowledge of Seller, threatened, against Seller
arising out of Seller's operation of the Branch Offices, materially affecting
any of the Assets or Assumed Liabilities, or materially affecting the ability of
Seller to carry out this Agreement or any of the transactions contemplated
hereby.
Section 3.07. Title to Real Property and Other Assets. As to the Real
Property, Seller is the owner of fee simple interests in the Real Property, free
and clear of any liens, mortgages, pledges or other security interests and
subject only to Permitted Exceptions and those exceptions accepted or waived by
Buyer. In addition to the Real Property, Seller has good and marketable title to
all other assets comprising the Assets. The Assets to be transferred pursuant to
this Agreement are sold "AS IS," without any warranty, express or implied,
whether of merchantability, fitness for a particular use or purpose, or
otherwise (except as to title), all of which warranties are hereby disclaimed.
Section 3.08. Loans, Deposits and Book Values. The principal balance and
accrued interest on each Loan and the balance of the Deposits and the net book
value of the Real Property and Personal Property, in each case as shown on the
Seller's Records, are in accordance with GAAP. Buyer hereby acknowledges that
Seller makes no warranties with respect to the collectibility of the Loans, the
value of the collateral securing the Loans, or the creditworthiness of any
makers, guarantors or obligors thereof.
10
Section 3.09. Brokerage. Except for fees due, if any, to Xxxxx Financial
LLC pursuant to a letter agreement, dated November 1, 2004, between Xxxxx and
Gold Banc Corporation, Inc., the parent company of Seller, and any fees due to
Sandler O'Neil & Partners, L.P. pursuant to a letter agreement, dated November
5, 2003, as amended by letter, dated November 4, 2004, the fees of which will be
paid by Seller, there are no existing claims or agreements for brokerage
commissions, finders' fees, or similar compensation to any person or party
engaged by or otherwise representing Seller in connection with the purchase and
assumption transaction contemplated by this Agreement.
Section 3.10. Statements True and Correct. No representation or warranty
by Seller contained in this Agreement (including, without limitation, the
Schedules hereto) contains any untrue statement of fact or omits any statement
of fact necessary to make the statements herein not materially misleading.
ARTICLE IV
----------
REPRESENTATIONS AND WARRANTIES OF BUYER
---------------------------------------
Buyer hereby makes the following representations and warranties:
Section 4.01. Organization. Buyer is a corporation duly organized,
validly existing and in good standing under the laws of the State of Texas, and
has the corporate power to carry on its business as the same is being conducted.
Section 4.02. Authorization. Buyer's Board of Directors has, by all
appropriate action, approved this Agreement and the purchase and assumption
transaction contemplated herein and authorized the execution hereof on its
behalf by its duly authorized officers and the performance by Buyer of its
obligations hereunder. This Agreement has been duly and validly executed and
delivered by Buyer and constitutes a legal, valid and binding obligation of
Buyer, enforceable against Buyer in accordance with its terms, subject to
bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally and to general principles of equity,
whether considered in a proceeding at law or in equity.
Section 4.03. Non-Contravention. The execution and delivery of this
Agreement by Buyer does not, and, subject to the receipt of all required
approvals and consents, including but not limited to regulatory approvals, the
consummation of the transaction contemplated by this Agreement will not,
constitute a breach or violation of or default under any law, rule, regulation,
judgment, order, governmental permit or license, agreement, indenture, or
instrument to which Buyer is a party, or by which it or any of its assets or
property is bound, which breach, violation, or default would have a material
adverse effect on Buyer.
Section 4.04. Consents to Transaction. The consummation of the purchase
and assumption transaction contemplated by this Agreement does not require Buyer
to obtain the prior consent or approval of any person, other than regulatory
approval from the appropriate regulatory authorities, including, but not limited
to, the approval of the Oklahoma Banking Department for the establishment by
Buyer of an Oklahoma state chartered bank necessary to fulfill the obligations
and commitments contained herein.
11
Section 4.05. Litigation. There are no governmental or administrative
proceedings or other proceedings, litigation, judgment or claims pending or
threatened against Buyer or any of its affiliates affecting the ability of Buyer
to carry out this Agreement, or any of the transactions contemplated hereby, or
which will materially affect Buyer or its operation of either of the Branch
Offices after the Closing Date.
Section 4.06. Financial Information. Schedule 4.06 contains a complete
description of the financing (the "Financing") to be used by Buyer to complete
the transactions contemplated by this Agreement and the amounts of common equity
financing as to which Buyer has entered into binding written agreements with
respect to the Financing as of the date of this Agreement; provided, the parties
acknowledge that the description of the Financing included on Schedule 4.06 is
based upon pro forma information as of September 30, 2004, and that the final
amount of Financing will be dependent on a number of factors occurring between
September 30, 2004 and the Closing Date including, without limitation, the
Buyer's results of operations and the amount of Loans transferred to, and
Deposits Liabilities assumed by, Buyer. As of the date of this Agreement, Buyer
has received commitments for at least eighty percent (80%) of the total amount
of the common equity portion of the Financing (the "Initial Equity
Commitments"), such commitments are in full force and effect, and Buyer has no
reason to believe that any of the conditions contained in such commitments that
are within the control of Buyer will not be satisfied in accordance with the
terms of such commitments. Buyer has delivered to Seller a letter from FTN
Financial Group, dated as of a recent date, stating that it is highly confident
that the trust preferred securities and subordinated debt financing portions of
the Financing will be obtained by the Closing Date in order to provide funding,
together with the funding committed through the equity financing, to consummate
the transactions contemplated by this Agreement.
Section 4.07. Compliance with Capital Adequacy and Debt Guidelines. As of
the Closing Date, Buyer, on a pro-forma basis reflecting the purchase and
assumption transaction contemplated hereby, meets or exceeds (i) all applicable
capital adequacy regulatory standards, (ii) all applicable debt-to-equity
regulatory guidelines and (iii) all debt-reduction guidelines. Buyer knows of no
reason why the approvals, consents or waivers of governmental authorities
required to complete the purchase and assumption transaction contemplated hereby
will not be obtained in a timely manner so as to permit the consummation of such
transaction to occur as contemplated by this Agreement.
Section 4.08. Community Reinvestment Act. Buyer is in compliance in all
material respects with the Community Reinvestment Act and its implementing
regulations, and Buyer has no knowledge of threatened or pending actions,
proceedings, or allegations by any person or regulatory agency which may cause
any applicable regulatory authority to deny any application required to be filed
pursuant to Section 6.01 hereof. In addition, Buyer has not been advised of any
supervisory concerns regarding its compliance with the Community Reinvestment
Act.
Section 4.09. Brokerage. There are no existing claims or agreements for
brokerage commissions, finders' fees, or similar compensation to any person or
party engaged by or otherwise representing Buyer in connection with the purchase
and assumption transaction contemplated by this Agreement.
12
Section 4.10. Statements True and Correct. No representation or warranty
by Buyer contained in this Agreement contains any untrue statement of fact or
omits any statement of fact necessary to make the statements herein not
materially misleading.
ARTICLE V
AGREEMENTS OF THE SELLER
Section 5.01. Business in Ordinary Course.
(a) Except as may be required to obtain regulatory approvals or as
otherwise may be required by any regulatory authority, after the date of this
Agreement, Seller shall not, without the prior written consent of Buyer (which
consent shall not be unreasonably withheld):
(i) cause or permit any of the Branch Offices to engage or
participate in any material transaction or incur or
sustain any material obligation except in the ordinary
course of business;
(ii) accept any deposits at rates in excess of those being
paid generally at other branches of Seller; or
(iii) undertake any actions which are inconsistent with a
program to use all reasonable efforts to maintain good
relations with employees employed at, and customers of,
the Branch Offices, unless such actions are required or
permitted by this Agreement or required by any
regulatory authority.
(b) Seller shall not, without the prior written consent of Buyer,
engage in any transaction or take any action that would render untrue in any
material respect any of the representations and warranties of Seller contained
in Article Three hereof, if such representations and warranties were given as of
the date of such transaction or action.
(c) Seller shall promptly notify Buyer in writing of the occurrence
of any matter or event known to and directly involving Seller, which would not
include any changes in conditions that affect the banking industry generally,
that is materially adverse to the business, operations, properties, assets, or
condition (financial or otherwise) of any of the Branch Offices.
Section 5.02. Breaches. Seller shall, in the event it has knowledge of the
occurrence, or impending or threatened occurrence, of any event or condition
which would cause or constitute a breach (or would have caused or constituted a
breach had such event occurred or been known prior to the date hereof) of any of
its representations or agreements contained or referred to herein, give prompt
written notice thereof to Buyer and use its best efforts to prevent or promptly
remedy the same.
Section 5.03. Consents to Assumed Contracts. Seller shall use commercially
reasonable efforts to obtain all necessary consents with respect to all
interests of Seller in the Assumed
13
Contracts which require the consent of another person for their transfer or
assumption pursuant to this Agreement, if any.
Section 5.04. Title Commitment. Seller shall provide Buyer with commitments
for title insurance or title opinions with respect to the Real Property within
thirty (30) days after the execution of this Agreement. Buyer shall have ten
(10) days after the receipt of the commitments for title insurance or title
opinions to object, in writing, to any exceptions or other matters contained
therein. If no objections are made, Buyer shall be deemed to have accepted the
status of title. Buyer and Seller agree that Buyer accepts and waives objections
to Permitted Exceptions. Buyer and Seller hereby acknowledge their mutual
understanding that Seller is under no obligation to cause any exceptions or
other matter to which Buyer may have objected to be corrected.
Section 5.05. Consummation of Agreement. Seller shall use its best efforts
to perform and fulfill all conditions and obligations on its part to be
performed or fulfilled under this Agreement and to effect the purchase and
assumption transaction contemplated by this Agreement in accordance with the
terms and provisions hereof. Seller shall furnish to Buyer in a timely manner
all information, data and documents in the possession of Seller requested by
Buyer as may be required to obtain any necessary regulatory or other approvals
of the purchase and assumption transaction contemplated by this Agreement and
shall otherwise cooperate fully with Buyer to carry out the purpose and intent
of this Agreement.
Section 5.06. Access to Information. Seller shall permit Buyer reasonable
access, in a manner which will avoid undue disruption or interference with
Seller's normal operations, to the Branch Offices and shall disclose and make
available to Buyer at the main office of Seller all books, documents, safe
deposit box contents, papers and records relating to the Branch Offices, its
assets, operations, obligations and liabilities, including, without limitation,
all books of account (including the general ledger), tax records, material
contracts and agreements, loan files, filings with any regulatory authority,
litigation files, and any other business activities or prospects in which Buyer
may have a reasonable and legitimate interest in furtherance of the purchase and
assumption transaction contemplated by this Agreement. Buyer will hold any such
information in accordance with the provisions of Section 11.01 hereof.
Section 5.07. Loan Participations. On and after the Closing Date, Seller
shall purchase, at Buyer's request, a senior participation interest in any Loan,
where such Loan, together with any other Loans that must be aggregated for legal
lending limit purposes, exceeds Buyer's legal lending limit. The senior
participation interest shall be in an amount equal to the principal amount of
the Loan in excess of the Buyer's legal lending limit. If a group of Loans are
aggregated for legal lending limit purposes, Seller shall purchase a senior
participation interest in each Loan. So long as such Loan is not in default, all
payments of principal on such participated Loan shall be allocated and paid to
Seller until Seller's senior participation interest is reduced to zero. If a
participated Loan is in default, payments of principal shall be allocated on a
pro rata basis among all lenders having an interest in such Loan. Payments of
interest shall be allocated on a pro rata basis.
14
ARTICLE VI
----------
AGREEMENTS OF THE BUYER
-----------------------
Section 6.01. Regulatory Approvals. Buyer shall file, within forty-five
(45) days after the date of this Agreement, all regulatory applications required
in order to consummate the purchase and assumption transaction contemplated by
this Agreement, including, without limitation, the necessary applications for
the establishment of an Oklahoma state-chartered bank and the approval of the
Oklahoma Banking Department and the Federal Deposit Insurance Corporation of the
transactions contemplated herein. Buyer shall provide to Seller a copy of the
non-confidential portions of such applications and correspondence pertaining
thereto contemporaneously with the filing or receipt of same. Seller will hold
any such information which is nonpublic in confidence in accordance with the
provisions of Section 11.01 hereof. Buyer shall timely file all documents
required to obtain all necessary permits and approvals required to carry out the
purchase and assumption transaction contemplated by this Agreement, shall pay
all expenses incident thereto and shall use its best efforts to obtain such
permits and approvals on a timely basis. Buyer shall provide Seller, as soon as
is reasonable, copies of correspondence between Buyer and the pertinent
regulatory agencies relating to such applications, to include, for example,
correspondence relating to a regulatory agency's request for additional
information, acknowledgement of acceptance of any regulatory application, notice
of non-acceptance of any regulatory application, approval of any regulatory
application, earliest date for consummation provided by any regulatory agency
and any proof of publication received by Buyer from any newspaper publishing the
public notices contemplated by this Agreement.
Section 6.02. Breaches. Buyer shall, in the event it has knowledge of the
occurrence, or impending or threatened occurrence, of any event or condition
which would cause or constitute a breach (or would have caused or constituted a
breach had such event occurred or been known prior to the date hereof) of any of
its representations or agreements contained or referred to herein, give prompt
written notice thereof to Seller and use its best efforts to prevent or promptly
remedy the same.
Section 6.03. Consummation of Agreement. Buyer shall use its best efforts
to perform and fulfill all conditions and obligations on its part to be
performed or fulfilled under this Agreement and to effect the purchase and
assumption transaction contemplated by this Agreement in accordance with the
terms and conditions hereof.
Section 6.04. Access to Information. Buyer shall permit Seller reasonable
access in a manner which will avoid undue disruption or interference with
Buyer's normal operations to its properties and shall disclose and make
available to Seller such information of Buyer in which Seller may have a
reasonable and legitimate interest in furtherance of the transactions
contemplated by this Agreement. Buyer shall also afford to the officers and
authorized representatives of Seller reasonable access to its books and records
related to any FSA Loans or FSA Related Borrowers and shall cooperate with
Seller in conducting any investigation of any such books or records. Seller will
hold any such information which is nonpublic in confidence in accordance with
the provisions of Section 11.01 hereof.
15
ARTICLE VII
-----------
CONDITIONS PRECEDENT TO THE BRANCH PURCHASE AND ASSUMPTION
----------------------------------------------------------
Section 7.01. Conditions to Seller's Obligations. Seller's obligations to
effect the purchase and assumption transaction contemplated by this Agreement
shall be subject to the satisfaction (or waiver by Seller) prior to or on the
Closing Date of the following conditions:
(a) The representations and warranties made by Buyer in this Agreement
shall be true in all material respects on and as of the Closing Date with the
same effect as though such representations and warranties had been made or given
on the Closing Date;
(b) Buyer shall have performed and complied in all material respects
with all of its obligations and agreements required to be performed prior to the
Closing Date under this Agreement;
(c) No temporary restraining order, preliminary or permanent
injunction or other order issued by any court of competent jurisdiction or other
legal restraint or prohibition preventing the consummation of the purchase and
assumption transaction contemplated by this Agreement shall be in effect nor
shall any proceeding by any bank regulatory authority or other governmental
agency seeking any of the foregoing be pending. There shall not be any action
taken, or any statute, rule, regulation or order enacted, entered, enforced or
deemed applicable to the purchase and assumption transaction contemplated by
this Agreement which makes the consummation of such transaction illegal;
(d) All necessary regulatory approvals, consents, authorizations
and other approvals required by law for consummation of the purchase and
assumption transaction contemplated by this Agreement shall have been obtained
in a manner and form reasonably satisfactory to Seller, and all waiting periods
required by law shall have expired;
(e) Seller shall have received all documents required to be received
from Buyer on or prior to the Closing Date, all in form and substance reasonably
satisfactory to Seller;
(f) Buyer shall have accepted the status of title as reflected
in the commitments for title insurance or title opinions as such commitments or
opinions may have been modified, delivered by Seller pursuant to Section 5.04
hereof; and
(g) Buyer shall have assigned this Agreement to a banking subsidiary
of Buyer or to a bank formed by Buyer.
Section 7.02. Conditions to Buyer's Obligations. Buyer's obligations to
effect the purchase and assumption transaction contemplated by this Agreement
shall be subject to the satisfaction (or waiver by Buyer) prior to or on the
Closing Date of the following conditions:
(a) The representations and warranties made by Seller in this
Agreement shall be true in all material respects on and as of the Closing Date
with the same effect as though such representations and warranties had been made
or given on and as of the Closing Date;
16
(b) Seller shall have performed and complied in all material respects
with all of its obligations and agreements required to be performed prior to the
Closing Date under this Agreement;
(c) No temporary restraining order, preliminary or permanent
injunction or other order issued by any court of competent jurisdiction or other
legal restraint or prohibition preventing the consummation of the purchase and
assumption transaction contemplated by this Agreement shall be in effect, nor
shall any proceeding by any bank regulatory authority or other governmental
agency seeking any of the foregoing be pending. There shall not be any action
taken, or any statute, rule, regulation or order enacted, entered, enforced or
deemed applicable to the purchase and assumption transaction contemplated by
this Agreement which makes the consummation of such transaction illegal;
(d) All necessary regulatory approvals, consents, authorizations and
other approvals required by law for consummation of the purchase and assumption
transaction contemplated by this Agreement shall have been obtained in a manner
and form reasonably satisfactory to Buyer, and all waiting periods required by
law shall have expired;
(e) Buyer shall have received all documents required to be received
from Seller on or prior to the Closing Date, all in form and substance
reasonably satisfactory to Buyer; and
(f) Buyer shall have accepted the status of title as reflected in
the commitments for title insurance or title opinions (as such commitments or
opinions may have been modified) delivered by Seller pursuant to Section 5.04
hereof.
ARTICLE VIII
------------
TERMINATION OR ABANDONMENT
--------------------------
Section 8.01. Mutual Agreement. This Agreement may be terminated by the
mutual written agreement of the parties at any time prior to the Closing Date.
Section 8.02. Breach of Representations or Agreements. In the event that
there is a material breach in any of the representations and warranties or
agreements of Seller or Buyer, which breach is not cured within 30 days after
notice to cure such breach is given to the breaching party by the non-breaching
party, then the non-breaching party may terminate and cancel this Agreement by
providing written notice of such action to the other party hereto.
Section 8.03. Failure of Conditions. In the event that any of the
conditions to the obligations of either party are not satisfied or waived on or
prior to the Closing Date, and if any applicable cure period provided in Section
8.02 hereof has lapsed, then such party may terminate and cancel this Agreement
by delivery of written notice of such action to the other party on such date.
Section 8.04. Approval Denial. If any regulatory application filed
pursuant to Section 6.01 hereof should be finally denied or disapproved by the
respective regulatory authority, then
17
this Agreement thereupon shall be deemed terminated and canceled; provided,
however, that a request for additional information from, or undertakings by, the
applicant, as a condition for approval, shall not be deemed to be a denial or
disapproval so long as the applicant diligently provides the requested
information or agrees to the requested undertaking. If any regulatory agency
requests that an application be withdrawn and the applicant, in consultation
with the other party to this Agreement, is unable to resolve the concern or
objections of such agency, the applicant shall be deemed to have failed to
obtain regulatory approval. In the event an application is denied but is subject
to an appeal, petition for review, or similar such act on the part of the
applicant (hereinafter referred to as the "appeal") then the application will be
deemed denied unless the applicant and the other party to this Agreement agree
in writing to appeal the denial and the applicant prepares and timely files such
appeal and continues the appellate process for purposes of obtaining the
necessary approval; provided, however, that Seller shall have the right, at its
election, to terminate this Agreement if such appeal remains unresolved for a
period exceeding 60 days.
Section 8.05. Automatic Termination. If the Closing Date does not occur on
or prior to August 31, 2005, then this Agreement shall thereupon be terminated;
provided, however, such date may be extended by Seller by providing written
notice of such extension to Buyer on or prior to the date this Agreement would
otherwise terminate. Any such extension(s) shall be in the sole discretion of
Seller.
ARTICLE IX
----------
TRANSITIONAL AND POST-CLOSING MATTERS
-------------------------------------
Section 9.01. Notification to Branch Office Customers. Buyer shall:
(a) jointly with Seller, as soon as practicable after the execution
and delivery of this Agreement, prepare and mail to each depositor whose Deposit
is to be assumed by Buyer, a letter, in form and substance mutually satisfactory
to the parties, informing such depositor of the nature of such transaction and
the continuing availability of services to be provided by Buyer in the Branch
Offices on and after the Closing Date;
(b) at its own cost and expense, cause to be printed deposit tickets,
checks, withdrawal orders and all other requisite banking transactional forms
for each account which constitutes a Deposit and mail such deposit tickets,
checks, withdrawal orders and other forms to each customer having such an
account so as to be received by such customer on or within three (3) days prior
to the Closing Date, each such document to be encoded with Buyer's
identification numbers and to be accompanied by Buyer's letter, in form and
substance satisfactory to Seller, advising that, from and after the Closing
Date, such newly issued deposit tickets, checks, withdrawal orders and other
forms are to be used instead of the corresponding existing documents of Seller
with respect to the customer's Deposit account maintained at the Branch Offices,
and that any such existing documents of Seller are to be destroyed; and
(c) take any other actions required by law or regulation or by
any court or regulatory authority to notify customers or depositors of the
Branch Offices or residents of the
18
communities in which the Branch Offices are located of the transfers and
assumptions occurring pursuant to this Agreement. The out-of-pocket cost of the
mailings required by subsections (a) and (b) of this section shall be borne by
Buyer.
Section 9.02. Payment of Instruments. Following the Closing, Buyer agrees to
pay in accordance with law all checks, drafts, and withdrawal orders (including
ACH debits) which are properly drawn by depositors with respect to the Deposits
assumed by Buyer, which are duly endorsed (or for which necessary endorsements
are deemed supplied by applicable law) and otherwise properly payable, in light
of credit balances and overdraft privileges, if any, applicable to such
depositors, and presented to Buyer by mail, over its counters, or through the
check-clearing system of the banking industry, and in all other respects to
discharge, in the usual course of the banking business, the duties and
obligations of Seller with respect to the balances due and owing to the
depositors whose Deposits are assumed by Buyer.
Section 9.03. Statements. Seller shall issue statements to its customers
which include all transactions with respect to the Deposits through the close of
business on the Closing Date, and Buyer shall issue statements for all
transactions with respect to the Deposits thereafter.
Section 9.04. Limited Correspondent. For a period of sixty (60) calendar
days after the Closing Date, Seller shall act as Buyer's limited correspondent
for the processing of checks, drafts and withdrawal orders drawn before or after
the Closing on the draft, check or withdrawal order forms provided by Seller on
Deposits assumed by Buyer hereunder, and Buyer will honor and pay all such
checks, drafts and withdrawal orders if duly endorsed and to the extent that the
credit balances or overdraft privileges of the drawers or makers permit;
provided, that Seller shall present all such checks, drafts and withdrawal
orders to the Buyer's designated courier within one (1) business day after such
checks, drafts or withdrawals are received by Seller.
Section 9.05. Uncollected Items. At Closing, Buyer shall establish an
account with Seller (the "Clearing Account"). Buyer and Seller shall settle
daily through the Clearing Account the amount of all uncollected items included
in the Deposits on the Closing Date which are returned to Seller after the
Closing Date as uncollected; provided, that Seller shall, upon Buyer's making
such payment, deliver each such item to Buyer and shall assign to Buyer any and
all rights which Seller may have or obtain in connection with such returned
items.
Section 9.06. ACH. Prior to the Closing Date, Seller will notify all
Automated Clearing House ("ACH") originators effecting debits or credits to the
accounts of the Deposit Liabilities of the purchase and assumption transactions
contemplated by this Agreement. For a period of one hundred twenty (120) days
beginning on the Closing Date, Seller will honor all ACH items related to
accounts of Deposit Liabilities which are mistakenly routed or presented to
Seller. Seller will make no charge to Buyer for honoring such items, and will
use its best efforts to transmit to Buyer via facsimile, by 10:00 a.m. or as
soon as practicable thereafter, each day's ACH data that is to be posted that
day. Items mistakenly routed or presented after the 120-day period may be
returned to the presenting party. Seller and Buyer shall make arrangements to
provide for the daily settlement through the Clearing Account with immediately
available funds by Buyer of any ACH items honored by Seller.
19
Section 9.07. Loans and Deposits. For a period of sixty (60) calendar
days after the Closing Date, Seller will forward to Buyer as soon as reasonably
possible any loan payments received by Seller made with respect to Loans
purchased by Buyer and any deposits received by Seller made with respect to
Deposits. Buyer shall reimburse Seller upon demand for checks returned on
payments forwarded by Seller to Buyer. If the balance due on any Loan purchased
pursuant to Section 1.01(d) has been reduced by Seller as a result of a payment
by check received prior to the Closing Date, which item is returned after the
Closing Date, the Acquisition Value represented by the Loan transferred shall be
correspondingly increased and an amount in cash equal to such increase shall be
paid by Buyer to Seller promptly upon demand.
Section 9.08. Credit Life Insurance. Seller and Buyer agree that Buyer
shall become the beneficiary of credit life and/or disability insurance written
on any direct consumer installment loans included in the Loans and coverage will
continue to be the obligation of the current insurer after the Closing and for
the duration of such insurance as provided under the terms of the policy or
certificate. Seller and Buyer agree to cooperate in good faith to develop a
mutually satisfactory method by which the current insurer will make rebate
payments to and satisfy claims of the holders of such certificates of insurance
after the Effective Time. In the event Buyer, after the Closing Date, is
required to refund to any borrower whose Loan was acquired by Buyer any unearned
credit insurance premium which was previously paid to Seller as a result of a
prepayment of such Loan, Seller will promptly reimburse Buyer for the amount of
any such refund. The parties' obligations in this Section are subject to any
restrictions contained in existing insurance contracts as well as applicable law
and regulations.
Section 9.09. Non-Solicitation. Seller agrees that for a period of two
years after the Closing Date, Seller will not (i) solicit customers whose
deposits or loans are assumed or acquired by Buyer hereunder to provide banking
services to such customers, it being expressly understood by Buyer that such
agreement by Seller shall not be construed to prohibit (A) any general mass
mailings or other similar communications made by Seller which does not
specifically target customers of the Branch Offices or (B) newspaper,
television, radio or similar advertisements of a general nature; or (ii) without
the prior written approval of Buyer, solicit for employment or hire any employee
of Seller who becomes an employee of Buyer upon consummation of the transactions
contemplated by this Agreement; provided, however, this Section 9.09 shall not
apply to the following employees of Seller, who shall remain as employees of
Seller upon consummation of the transactions contemplated by this Agreement:
Xxxx Xxxxxxx, Xxxxxx Xxxxxx, Xxxxxx Xxxxxx, Xxxxx Xxxxxx, Xxxxxx Xxxxxx, Xxxxxxx
Xxxxxx, Xxx Xxxxxx and Xxxx XxXxxxx.
Section 9.10. Maintenance of Records.
(a) Seller and Buyer mutually agree to maintain all records and other
documents relating to the Assets and Assumed Liabilities for such periods as
provided in Seller and Buyer's respective record retention policies and required
by applicable law, and to examine, inspect, copy and reproduce such records and
other documents relating to such Assets and Assumed Liabilities as may be
reasonably requested by the other party. Any charges for such examination and
photocopying shall be at a rate not greater than the examining party's customary
rates for similar requests by its customers.
20
(b) In addition, Buyer also agrees to fully cooperate with and
assist Seller, and to preserve, maintain and make available to Seller and its
representatives all records and other documents relating to the Assets and
Assumed Liabilities necessary for Seller to comply with the Order to be issued
by the District Court in Kingfisher County in the State of Oklahoma with respect
to pending litigation relating to FSA Loans made by Seller.
Section 9.11. Information Reporting. With respect to the Loans and Deposits
purchased and assumed by Buyer pursuant to this Agreement, Seller shall be
responsible for reporting to the customer and to the Internal Revenue Service
(and any state or local taxing authority as required by law) all interest paid
or earned by the customer prior to and including the Closing Date and Buyer
shall be responsible for reporting to the customer and to the Internal Revenue
Service (and any state or local taxing authority as required) all interest paid
or earned by the customer after the Closing Date.
Section 9.12. Transition. From and after the date of this Agreement,
Seller and Buyer agree to fully cooperate with and assist one another in
connection with the transition and conversion of all customer accounts, files
(including data processing files) and other information which are being
purchased and assumed by Buyer pursuant to the terms hereof. Additionally, each
of the Buyer and Seller agree to provide each other, upon reasonable prior
notice, with such information and data as is necessary to allow Seller and Buyer
to comply with all tax, regulatory reporting, audit or other compliance
obligations relating to the customers, employees and operations of the Branch
Offices, and each of Seller and Buyer agree to timely take any and all action as
required by law to comply with such tax, regulatory and/or reporting
obligations.
Section 9.13. Overdrafts. Prior to the Closing, Seller agrees to cooperate
with Buyer and to use its best efforts to identify those deposit accounts for
which provisional credit has been given and that contain uncollected funds.
Section 9.14. Banking Market. Except to the extent necessary to service the
FSA Loans and other Excluded Loans, to service Seller's merchant credit card
business currently serviced from the Oklahoma City Branch and to conduct
Seller's trust business as currently conducted from the Oklahoma City Branch,
for a period of two years after the Closing Date Seller shall not enter the
Oklahoma City, El Reno, Kingfisher, Xxxxxxxxx or Enid, Oklahoma banking markets
by opening a banking, loan production or other office for the purpose of
offering banking or related services to the public, provided, however, this
provision shall not be binding on any entity that purchases substantially all of
the stock or assets of Seller, or its parent companies, whether such acquisition
occurs before or after the Closing Date.
Section 9.15. Recovery on Charged-Off Asset.
(a) On the Closing Date, Seller shall assign to Buyer Loan Nos.
41102 and 241102. If Buyer obtains any Recovery (as hereafter defined) with
respect to Loan Nos. 41102 and 241102, including any Recovery pursuant to a
judgment in or settlement of that certain action styled Gold Bank x. Xxxxxxxx
Oil Corporation, Case No. CJ-2004-49, pending in the District Court of Xxxxxx
County, Oklahoma (the "Xxxxxxxx Oil Litigation"), then promptly upon the receipt
of such Recovery Buyer shall pay to Seller the lesser of (i) the amount of such
21
Recovery or (ii) the amount of third-party legal expenses incurred by Seller in
connection with the Xxxxxxxx Oil Litigation prior to the Closing.
(b) Following the Closing, Buyer intends to cause itself to be
substituted as the plaintiff in the Xxxxxxxx Oil Litigation and, in connection
therewith, Seller agrees to cooperate with Buyer in such substitution and to
execute and deliver such assignments or instruments necessary or desirable to
effect such substitution; provided, however, if, for any reason, Buyer cannot
pursue its claims in the Xxxxxxxx Oil Litigation as the real party in interest,
Seller agrees to pursue such claims upon the direction and at the expense of
Buyer and promptly remit all Recoveries with respect thereto to Buyer in such
manner as Buyer shall direct.
(c) For the purposes hereof, the term "Recovery" means (i) any
payments voluntarily made after the Closing Date by or on behalf of the debtor
with respect to Loan Nos. 41102 and 241102, including, without limitation, any
payments made by the borrower or any guarantor with respect to Loan Nos. 41102
and 241102, (ii) any amount obtained through collection or other legal process
or otherwise received by Buyer after the Closing Date with respect to Loan Nos.
41102 and 241102 or (iii) the cash proceeds of any collateral securing Loan Nos.
41102 and 241102 which proceeds are obtained by foreclosure or other legal
process after the Closing Date.
ARTICLE X
---------
INDEMNIFICATION
---------------
Section 10.01. Indemnification of Buyer. Seller shall indemnify, hold
harmless and defend Buyer, and Buyer's subsidiaries and affiliates, and their
successors and assigns, and the directors, officers, employees, agents and
representatives of the foregoing entities (collectively, the "Buyer's
Indemnified Parties"), from and against any and all damage, loss, liability,
cost, claim, or expense, including reasonable legal fees and expenses
("Damages"), incurred or suffered by Buyer's Indemnified Parties (i) arising out
of or resulting from the breach or inaccuracy of or failure to comply with any
representation, warranty or covenant made by the Seller in this Agreement which
survives the Closing Date as specified in Section 11.07 hereof; (ii) arising out
of or resulting from or based upon any Excluded Liabilities, as defined in
Section 1.02(c) hereof; or (iii) arising out of or resulting from Seller's
operation of the Branch Offices before the Closing Date.
Section 10.02. Indemnification of Seller. Buyer shall indemnify,
hold harmless and defend Seller, and Seller's parents, subsidiaries and
affiliates, and their successors and assigns, and the directors, officers,
employees, agents and representatives of the foregoing entities (collectively,
the "Seller's Indemnified Parties"), from and against any and all damage, loss,
liability, cost, claim, or expense (including reasonable legal fees and
expenses) incurred or suffered by Seller's Indemnified Parties (i) arising out
of or resulting from the breach or inaccuracy of or failure to comply with any
representation, warranty or covenant made by Buyer in this Agreement which
survives the Closing Date as specified in Section 11.07 hereof; (ii) by reason
of any failure of the Buyer to pay, honor, perform or otherwise discharge the
liabilities assumed pursuant to Sections 1.02(a), 1.02(b) and 2.03 hereof on or
after the Closing Date; (iii)
22
arising out of or resulting from Buyer's operation of the Branch Offices on or
after the Closing Date; or (iv) by reason of any counterclaim asserted against
Seller in the Xxxxxxxx Oil Litigation (subject to Seller having assigned to
Buyer at the Closing Loan Nos. 41102 and 241102).
Section 10.03. Indemnification Limits. No indemnification will be provided
under Sections 10.01 or 10.02 (i) for any Claim (as defined in Section 10.04
below) for indemnification which is made more than eighteen (18) months
following the Closing Date; and (ii) unless and until the amount of all Damages
exceeds $50,000, and then only to the extent of such excess. Notwithstanding the
foregoing, (a) in the event the Claim for indemnification arises as a result of
a third party claim asserted against Buyer in connection with an FSA Loan,
Buyer's right of indemnification shall not be subject to the limitations set
forth in the foregoing clauses (i) and (ii), and (b) in the event the Claim for
indemnification arises as a result of a counterclaim asserted against Seller in
connection with the Xxxxxxxx Oil Litigation, Seller's right of indemnification
shall not be subject to the limitations set forth in the foregoing clauses (i)
and (ii).
Section 10.04. Indemnification Procedures. All claims or demands for
indemnification under this Article X (each a "Claim") shall be asserted and
resolved as follows:
(a) In the event a Buyer's Indemnified Party or a Seller's
Indemnified Party (each an "Indemnified Party") has a claim against the Seller
or Buyer, as applicable (the "Indemnifying Party") which does not involve a
Claim being asserted against or sought to be collected by a third party, the
Indemnified Party shall with reasonable promptness send a notice of such Claim
(a "Claim Notice") to the Indemnifying Party. If the Indemnifying Party does not
notify the Indemnified Party that the Indemnifying Party disputes such Claim
within twenty (20) days of receipt of a Claim Notice (the "Notice Period"), the
amount of such Claim shall conclusively be deemed a liability of the
Indemnifying Party hereunder, and the Indemnifying Party shall promptly pay the
amount of the Claim. In case the Indemnifying Party shall object in writing to
any Claim made in accordance with this Section 10.04, the Indemnified Party
shall have ten (10) days to respond to a written statement to the objection of
the Indemnifying Party. If after such 10-day period there remains a dispute as
to the Claim, the parties shall attempt in good faith for ten (10) days to agree
upon the rights of the respective parties with respect to the Claim. If no such
agreement can be reached after good faith negotiation, either the Indemnified
Party or the Indemnifying Party may initiate legal action to enforce its rights
under this Agreement.
(b) In the event that any Claim for which an Indemnifying Party would
be liable to an Indemnified Party hereunder is asserted against an Indemnified
Party by a third party, the Indemnified Party shall, with reasonable promptness,
provide to the Indemnifying Party a Claim Notice, which shall specify the nature
of such Claim and the amount or estimated amount thereof to the extent then
feasible (which estimate shall not be conclusive of the final amount of such
Claim). The Indemnifying Party shall have twenty (20) days of receipt of such
Claim Notice to notify the Indemnified Party (i) whether or not the Indemnifying
Party disputes its liability to the Indemnified Party hereunder with respect to
such claim and (ii) if the Indemnifying Party does not dispute such liability,
whether or not the Indemnifying Party desires, at its sole cost and expense, to
defend against such Claim. In the event that the Indemnifying Party notifies the
Indemnified Party within such 20-day period that it does not dispute its
23
obligation to indemnify hereunder and desires to defend the Indemnified Party
against such Claim and except as hereinafter provided, the Indemnifying Party
shall have the right to defend by appropriate proceedings, which proceedings
shall be promptly settled or prosecuted by the Indemnifying Party to a final
conclusion; provided that, unless the Indemnified Party otherwise agrees in
writing, the Indemnifying Party may not settle any matter (in whole or in part)
unless such settlement includes a complete and unconditional release of the
Indemnified Party. If the Indemnified Party desires to participate in, but not
control, any such defense or settlement, the Indemnified Party may do so at the
Indemnified Party's sole cost and expense. If the Indemnifying Party elects not
to defend the Indemnified Party against such a Claim, whether by failure of the
Indemnifying Party to give the Indemnified Party timely notice as provided above
or otherwise, then the Indemnified Party, without waiving any rights against the
Indemnifying Party, may settle or defend any such Claim in the Indemnified
Party's sole discretion and the Indemnified Party shall be entitled to recover
from the Indemnifying Party, subject to the limitations prescribed in Section
10.03 hereof, the amount of any settlement or judgment and, on an ongoing basis,
all indemnifiable costs and expenses of the Indemnified Party with respect
thereto, including interest from the date such costs and expenses were incurred.
ARTICLE XI
----------
GENERAL
-------
Section 11.01. Confidential Information. Buyer and Seller acknowledge and
agree that the Confidentiality Agreement, dated December 10, 2004 (the
"Confidentiality Agreement"), between the Buyer and Seller executed prior to the
date hereof remains in full force and effect following the execution of this
Agreement.
Section 11.02. Publicity. Buyer and Seller shall cooperate with each other
in the development and distribution of all news releases and other public
disclosures concerning this Agreement and the transaction contemplated herein
and, except for the press release of Seller announcing the execution of this
Agreement, shall not issue any news release or make any other public disclosure
without prior consultation with the other party, unless such is required by law
upon the written advice of counsel or is in response to published newspaper or
other mass media reports regarding the transaction contemplated hereby.
Section 11.03. Return of Documents. Upon termination of this Agreement
without the purchase and assumption transaction contemplated by this Agreement
becoming effective, each party (i) shall deliver to the other originals and all
copies of all information made available to such party, and, except as may
otherwise be required by law or to protect the interests of either party, (ii)
will not retain any copies, extracts or other reproductions in whole or in part
of such information, and (iii) will destroy all memoranda, notes and other
writings prepared by either party based on the Information.
Section 11.04. Notices. Any notice or other communication shall be in
writing and shall be deemed to have been given or made on the date of delivery,
in the case of hand delivery, or three (3) business days after deposit in the
United States Registered Mail, postage prepaid, or
24
upon receipt if transmitted by facsimile telecopy or any other means, addressed
(in any case) as follows:
(a) if to Seller:
Gold Bank
00000 Xxxx Xxxxxx
Xxxxxxx, Xxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, President
Facsimile: (000) 000-0000
With a copy to:
Xxxx X. Xxxxxxxx, Esq.
Xxxxxxx Xxxxxxxx Xxxxxx LLP
0000 Xxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000-0000
Facsimile: (000) 000-0000
and
(b) if to Buyer:
Olney Bancshares of Texas, Inc.
000 Xxxx Xxxx
Xxxxxxxxxxxx, Xxxxx 00000
Attention: Xxxx XxXxxxxx
Facsimile: (000) 000-0000
With a copy to:
C. Xxxxx Xxxx, Esq. McAfee & Xxxx
Tenth Floor, Two Leadership Square
000 Xxxxx Xxxxxxxx
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
or to such other address as any party may from time to time designate by notice
to the others.
Section 11.05. Expenses. Except as otherwise specifically provided herein,
Seller and Buyer each shall pay all of their own out-of-pocket expenses incurred
in connection with this Agreement, including, without limitation, appraisals,
accounting and legal fees, and data processing charges, if any, whether or not
the purchase and assumption transaction contemplated by this Agreement is
consummated. The cost of title insurance policies (including the related
commitments) or the title opinions described in Section 5.04 hereof shall be
paid by the Seller. All documentary stamps or similar transfer fees and
recording costs with respect to the Real Property, and all sales taxes (if any)
with respect to the Personal Property, shall by paid by Buyer.
25
Section 11.06. Liabilities. In the event that this Agreement is terminated
pursuant to the provisions of Article Eight hereof, no party hereto shall have
any liability to any other party for costs, expenses, damages or otherwise;
provided, that, notwithstanding the foregoing, in the event that this Agreement
is terminated pursuant to Section 8.02 hereof on account of a willful breach of
any of the representations and warranties set forth herein, or any breach of any
of the agreements set forth herein, then the non-breaching party shall be
entitled to recover its damages from the breaching party.
Section 11.07. Nonsurvival of Representations, Warranties and Agreements.
Except for, and as provided in, this Section 11.07, no representation, warranty
or agreement contained in this Agreement shall survive the Closing Date or the
earlier termination of this Agreement. The representations, warranties and/or
agreements (as applicable) set forth in Articles Nine, Ten and Eleven, and
Sections 1.03, 2.03, 2.04(c), 2.05, 2.06, 3.07, 3.08, 3.09, 4.09 and 5.07 shall
survive the Closing Date, or the earlier termination of this Agreement.
Section 11.08. Entire Agreement. This Agreement and the Confidentiality
Agreement constitute the entire agreement between the parties and supersedes any
and all prior discussions, negotiations, undertakings, agreements in principle
and other agreements between the parties relating to the subject matter hereof
and thereof.
Section 11.09. Headings and Captions. The captions of Articles and Sections
hereof are for convenience only and shall not control or affect the meaning or
construction of any of the provisions of this Agreement.
Section 11.10. Waiver, Amendment or Modification. The conditions of this
Agreement that may be waived may be waived only by written instrument duly
executed by the party for which the condition(s) is intended to benefit. The
failure of any party at any time or times to require performance of any
provision hereof shall in no manner affect the right of such party at a later
time to insist upon performance of the same. This Agreement may not be amended
or modified except by a written instrument duly executed by the parties hereto.
Section 11.11. Rules of Construction. Unless the context otherwise
requires: (a) a term has the meaning assigned to it; (b) "or" is not exclusive;
and (c) words in the singular may include the plural and in the plural include
the singular.
Section 11.12. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which shall
be deemed one and the same instrument.
Section 11.13. Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and permitted assigns. This Agreement may not be assigned without the consent of
the other party hereto; provided, however, that Olney Bancshares of Texas, Inc.
may assign its rights and delegate its duties and obligations under this
Agreement to any wholly-owned existing, or newly acquired or chartered, bank (or
other federally insured depository institution), without the consent of Seller,
provided that Olney Bancshares of Texas, Inc. and such bank shall be and remain
jointly and severally liable for all obligations of Buyer under this Agreement
and the Confidentiality Agreement. There are no
26
third-party beneficiaries hereof. In the event of any such assignment,
references in this Agreement to the Buyer shall include such assignee.
Section 11.14. Governing Law; Assignment. This Agreement shall be governed
by the laws of the State of Kansas and applicable federal laws and regulations.
Neither this Agreement, nor any of the rights, interests or obligations
hereunder, shall be assigned by either of the parties hereto without the prior
written consent of the other, except that Buyer may assign such rights and
obligations to a banking subsidiary of Buyer or a bank formed by Buyer, upon
written notice to Seller.
Section 11.15. Permitted Exceptions. The term "Permitted Exceptions" shall
mean, with respect to the Real Property, ad valorem taxes for the current year,
prior mineral reservations and conveyances and any other exceptions,
restrictions, easements, rights of way and encumbrances customarily found with
respect to commercial property and which do not materially and adversely affect
the value or present use of the Real Property.
Section 11.16. Time of Essence. The parties hereto agree that time is of
the essence with respect to the performance of the obligations hereunder.
* * * *
27
IN WITNESS WHEREOF, the parties hereto have caused this Branch Purchase
and Assumption Agreement to be executed as of the date first above written.
GOLD BANK
By:/s/ Xxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President
OLNEY BANCSHARES OF TEXAS, INC.
By:/s/ Xxxx XxXxxxxx
---------------------------------
Name: Xxxx XxXxxxxx
Title: President
28
Schedule 1.01(c)(i) - ATM Facilities
Gold Bank Hennessey 000 X. Xxxx Xxxxxxxx, XX 00000
Gold Bank Enid 000 Xxxxxxxx Xxxx, XX 00000
Gold Bank Kingfisher 000 X. Xxxx Xxxxxxxxxx, XX 00000
Gold Bank Kingfisher 0000 X. Xxxx Xxxxxxxxxx, XX 00000
Gold Bank Kingfisher 0xx & Xxxxxxx Xxxxxxxxxx, XX 00000
(Pioneer Telephone)
Gold Bank El Reno 0000 Xxxxxxx Xxxx Xxxx Xx Xxxx, XX 00000
Gold Bank El Reno 000 X. Xxxx Xxxxxx Xx Xxxx, XX 00000
Gold Bank El Reno 000 X. Xxx Xx Xxxx, XX 00000
Gold Bank Oklahoma City 00000 Xxxxxx Xxxxxx Xx. Xxxxxxxx Xxxx, XX 00000
29
Schedule 1.01(c)(ii) - Certain Excluded Personal Property
--------------------------------------------------------------------------------
Asset Description Acquisition Accumulated Book
Value ($) Depreciation($) Value($)
--------------------------------------------------------------------------------
1000145 OK METAVANTE CONVERSION - 45,623.14 0.00 45,623.14
HARDWARE
--------------------------------------------------------------------------------
1000117 AFS Upgrade - Consulting 424.08 0.00 424.08
--------------------------------------------------------------------------------
1000118 AFS Upgrade - SOFTWARE 203,473.06 0.00 203,473.06
--------------------------------------------------------------------------------
1000119 AFS Upgrade - HARDWARE 259,726.55 0.00 259,726.55
--------------------------------------------------------------------------------
803445 19IN MONITOR - VIEWSONIC 1,340.44 (223.41) 1,117.03
--------------------------------------------------------------------------------
000000 XXX SWITCH 648 (108.00) 540
--------------------------------------------------------------------------------
803457 APC SMART UPS 2,084.59 (382.18) 1,702.41
--------------------------------------------------------------------------------
804376 SORTER CONTROLLER 1 - DELL CPU 1,980.30 (363.06) 1,617.24
--------------------------------------------------------------------------------
804377 NCR MONITOR 300 (55.00) 245
--------------------------------------------------------------------------------
804378 CAR MANAGER - HP PROLIANT DL140 2,167.56 (397.39) 1,770.17
--------------------------------------------------------------------------------
804379 CAR SERVER - HP PROLIANT DL140 2,167.56 (397.39) 1,770.17
--------------------------------------------------------------------------------
804380 SORTER CONTROLLER 3 - DELL CPU 1,980.30 (363.06) 1,617.24
--------------------------------------------------------------------------------
804381 DVD BURNER WORKSTATION - HP PC 1,980.30 (363.06) 1,617.24
--------------------------------------------------------------------------------
804382 RIMAGE WORKSTATION - DELL PC 1,980.30 (363.06) 1,617.24
--------------------------------------------------------------------------------
804383 PRINTER SERVER 1 - HP PC 1,980.30 (363.06) 1,617.24
--------------------------------------------------------------------------------
804384 WORKSTATION 2 - CPQ DESKTOP PC 1,980.30 (363.06) 1,617.24
--------------------------------------------------------------------------------
804385 AFS SNAP STORAGE DEVICE 5,500.00 (1,008.33) 4,491.67
--------------------------------------------------------------------------------
804388 AMC RAID ARRAY 5,500.00 (1,008.33) 4,491.67
--------------------------------------------------------------------------------
804389 VSU - HP PROLIANT ML370 3,964.35 (726.79) 3,237.56
--------------------------------------------------------------------------------
804390 PRINTER SERVER 2 - HP PROLIANT 3,964.35 (726.79) 3,237.56
ML350
--------------------------------------------------------------------------------
804391 APPS - HP PROLIANT ML350 3,964.35 (726.79) 3,237.56
--------------------------------------------------------------------------------
804392 ARCHIVE - HP PROLIANT ML370 3,964.35 (726.80) 3,237.55
--------------------------------------------------------------------------------
804393 ENDPOINT - HP PROLIANT ML370 3,964.35 (726.79) 3,237.56
--------------------------------------------------------------------------------
804394 RIMAGE CD/DVD BURNER 1,666.65 (305.56) 1,361.09
--------------------------------------------------------------------------------
804395 ENDPOINT ROUTER - CISCO 1760 1,816.00 (332.93) 1,483.07
--------------------------------------------------------------------------------
804396 ENDPOINT FIREWALL 3,084.48 (565.49) 2,518.99
--------------------------------------------------------------------------------
804397 VIEWSONIC VC900 19IN FLAT 730 (133.83) 596.17
PANEL MONITOR
--------------------------------------------------------------------------------
804398 VIEWSONIC VC900 19IN FLAT 730 (133.83) 596.17
PANEL MONITOR
--------------------------------------------------------------------------------
30
804399 VIEWSONIC VX900 19IN FLAT 730 (133.83) 596.17
PANEL MONITOR
--------------------------------------------------------------------------------
804400 VIEWSONIC VX900 19IN FLAT 730 (133.83) 596.17
PANEL MONITOR
--------------------------------------------------------------------------------
804401 NCR ITRAN SORTER 66,644.31 (12,218.12) 54,426.19
--------------------------------------------------------------------------------
900423 AFS SOFTWARE 238,219.97 (43,673.66) 194,546.31
--------------------------------------------------------------------------------
900420 SYBASE SQL ANYWHERE 29,058.75 (9,686.25) 19,372.50
--------------------------------------------------------------------------------
900421 BANKER & TELLER INSIGHT - M&I 121,602.56 (21,883.89) 99,718.67
--------------------------------------------------------------------------------
900418 EQUITY MANAGER SOFTWARE 21,500.00 (13,736.12) 7,763.88
--------------------------------------------------------------------------------
803470 IBM X235 SERVER 23,145.78 (9,258.32) 13,887.46
--------------------------------------------------------------------------------
614679 NCR 7780 CHECK SORTER 8,174.00 (4,130.83) 4,043.17
--------------------------------------------------------------------------------
614680 NCR 7780 CHECK SORTER 8,174.00 (4,130.83) 4,043.17
--------------------------------------------------------------------------------
31
Schedule 1.01(d)(iii) - Excluded Loans
Loan Number Outstanding Balance
----------- --------------------
213500111 $ 72,462.57
208377 $ 110,458.11
152926 $ 18,599.73
152937 $ 16,600.62
474800 $ 1,077.61
155995 $ 6,974.39
73946 $ 13,830.97
111390 $ 13,146.54
1054 $ 20,235.31
196761 $ 82,298.43
141475 $ 31,114.35
150275 $ 4,727.83
170119 $ 7,977.90
194891 $ 7,562.91
26007 $ 72,099.06
1328 $ 47,054.58
213100061 $ 12,294.96
5506 $ 5,614.18
603317 $ 15,218.73
161176 $ 200,000.00
218134 $ 126,176.02
67170 $ 72,488.48
156259 $ 28,784.91
213100039 $ 12,605.00
32685 $ 108,480.52
71482 $ 19,476.76
131377 $ -
116197 $ 217,668.41
213100513 $ 61,253.30
220994 $ 206,159.60
64255 $ 348,522.59
218442 $ 306,382.64
80172 $ 1.00
224745 $ 51,732.23
57314 $ 47,791.61
71658 $ 143,502.70
18440 $ 194.55
81206 $ 211,338.04
34137 $ 99,272.81
34148 $ 26,941.40
139407 $ 72,513.77
152684 $ 31,739.88
32
57127 $ 72,639.62
140815 $ 3,900.53
186949 $ 42,143.77
5229 $ 30,760.98
31189 $ 1,111.83
57138 $ 25,625.00
3404 $ 12,845.15
24903 $ 6,505.49
603317 $ 15,569.07
55323 $ 2,800.00
5626 $ 2,415.47
208619 $ 8,896.23
208652 $ 5,719.61
218123 $ 81,063.34
206100098 $ 19,245.99
206639 $ 15,692.56
206650 $ 14,014.30
219872 $ 35,156.78
206100045 $ 2,025.51
202100026 $ 14,431.62
139957 $ 12,387.91
79446 $ 13,007.93
182329 $ 6,279.41
68303 $ 1,424.11
210093 $ 31,021.31
146117 $ 87,957.57
221291 $ 17,404.26
153806 $ 17,283.84
201100002 $ 41,553.30
123875 $ 9,147.51
186465 $ 10,370.58
120806 $ 5,747.57
151364 $ 1,208.71
37349 $ 1.00
37360 $ 1,000.00
37371 $ 1.00
37382 $ 1.00
20076 $ 1,800.00
474800&1127472 $ 1,078.00
480830 $ 3,514.00
13381 $ 23,627.00
603317 $ 15,569.00
41529 $ 20,771.00
213500575 $ 7,472.00
229706 $ 14,570.00
182329 $ 6,279.00
33
206100045 $ 2,026.00
24903 & 3404 $ 19,350.00
220191 $ 9,762.00
5506 $ 5,770.00
222083 $ 128,409.27
209620 $ 108,417.32
220873 $ 6,011.08
229156 $ 50,000.00
214100024 $ 129,833.00
220191 $ 9,761.52
189842 $ 7,572.19
192944 $ 8,464.46
217903 $ 680,273.11
34
Schedule 101(d)(vi) - Other Retained Loans
Loan No. 222259 together with the following five Letters of Credit
which it supports:
214222259
214322259
214422259
214522259
214622259
Loan Nos. 206771, 222028 and 194704.
Loan Xx. 00000000
Xxxx Xx. 000000
Loan Nos. 176279, 179150 and 176301.
35
Schedule 4.06 - Description of Financing
Buyer intends to finance the transaction through a combination of
common equity contributed by the existing shareholders of Buyer, trust preferred
securities to be issued by a statutory trust to be organized by Buyer and
subordinated debt to be issued by Buyer. Buyer has obtained a Subscription
Agreement from its principal shareholder pursuant to which that shareholder has
agreed to purchase up to $8.5 million in additional common stock of Buyer. It is
anticipated that the ultimate amount of common equity which will be necessary
for Buyer to issue will be less than this $8.5 million amount and the common
stock to be issued will be purchased by several (and perhaps all) of Buyer's
existing shareholders.
Buyer has provided to Seller a letter, dated January 3, 2005, from FTN Financial
Group confirming that FTN Financial Group is highly confident that it can place
for Buyer $30 million in trust preferred securities and $22 million in
subordinated debt securities in one or more pools which it sponsors. Buyer
expects to issue the full $30 million in trust preferred securities. While Buyer
does not currently expect to need to issue the full $22 million in subordinated
debt securities in order to finance the transaction, it requested a commitment
at this level because its initial pro forma analysis was based upon Buyer's
financial position at September 30, 2004.
36
EXHIBIT A
---------
BRANCH PURCHASE AND ASSUMPTION AGREEMENT
BETWEEN
GOLD BANK
AND
ASSIGNEE BANK
ASSIGNMENT AND ASSUMPTION OF DEPOSIT LIABILITIES AGREEMENT
----------------------------------------------------------
This ASSIGNMENT AND ASSUMPTION OF DEPOSIT LIABILITIES AGREEMENT is dated
this _____ day of _______________, 2005, by and between GOLD BANK, a Kansas
banking corporation ("Seller"), and ASSIGNEE BANK, an Oklahoma banking
corporation ("Buyer"). Capitalized terms not otherwise defined herein shall have
the same meaning as specified in the Agreement (as defined below).
W I T N E S S E T H:
WHEREAS, Seller and Buyer entered into a Branch Purchase and Assumption
Agreement, dated as of ___________, 2005 (the "Agreement"), which provides for
the assignment by Seller of all of its rights and interest in and to certain
deposit accounts related to Seller's offices located at (i) 000 Xxxxx Xxxx
Xxxxxx, Xx Xxxx, Xxxxxxxx and 0000 Xxxxxxx Xxxx Xxxx, Xx Xxxx, Xxxxxxxx
(collectively, the "El Reno Branches"); (ii) 000 Xxxxx Xxxxxxxx, Enid, Oklahoma
(the "Xxxx Xxxxxx"); (iii) 000 Xxxxx Xxxx Xxxxxx, Xxxxxxxxx, Oklahoma (the
"Hennessey Branch"); (iv) 0000 Xxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx and 000 Xxxxx
Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx (collectively, the "Kingfisher Branches"); and
(v) 00000 Xxxxxx Xxxxxx Xxxxx, Xxxxxxxx Xxxx, Xxxxxxxx (the "Oklahoma City
Branch") (all together, the "Branch Offices"), and the assumption by Buyer of
such deposit accounts, all as set forth in the Agreement.
NOW, THEREFORE, for good and valuable consideration, receipt of which is
hereby acknowledged by Seller and Buyer, Seller hereby assigns, transfers and
sets over to Buyer all of Seller's rights and interest in and to, and Buyer does
hereby assume all of Seller's liabilities and obligations with respect to, all
Deposit Liabilities maintained at the Branch Offices, as shown on the books and
records of Seller as of the close of business on the Closing Date, as further
specified in the Agreement.
This Assignment and Assumption of Deposit Liabilities Agreement shall be
binding upon and shall inure to the benefit of Seller, Buyer and each of their
respective successors and assigns, and shall be subject to the terms and
conditions of the Agreement. In the event of a conflict
between any of the terms and provisions hereof and the Agreement, the Agreement
shall be deemed to control.
This Assignment and Assumption of Deposit Liabilities Agreement, and the
rights and obligations of the parties hereunder, shall be governed by and
construed in accordance with the laws of the State of Oklahoma and applicable
federal laws and regulations.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Assumption of Deposit Liabilities Agreement to be executed as of the date first
above written
GOLD BANK
By:
---------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President
ASSIGNEE BANK
By:
---------------------------------
Name:
Title: President
2
EXHIBIT B
---------
BRANCH PURCHASE AND ASSUMPTION AGREEMENT
BETWEEN
GOLD BANK
AND
ASSIGNEE BANK
ASSIGNMENT AND ASSUMPTION OF CONTRACTS AGREEMENT
------------------------------------------------
This ASSIGNMENT AND ASSUMPTION OF CONTRACTS AGREEMENT is dated this _____
day of _______________, 2005 by and between GOLD BANK, a Kansas banking
corporation ("Seller"), and ASSIGNEE BANK, an Oklahoma banking corporation
("Buyer"). Capitalized terms not otherwise defined herein shall have the same
meaning as specified in the Agreement (as defined below).
W I T N E S S E T H:
WHEREAS, Seller and Buyer entered into a Branch Purchase and Assumption
Agreement, dated as of ___________, 2005 (the "Agreement"), which provides for
the assignment by Seller of all of its rights and interest in and to certain
contracts and leases related to Seller's offices located at (i) 000 Xxxxx Xxxx
Xxxxxx, Xx Xxxx, Xxxxxxxx and 0000 Xxxxxxx Xxxx Xxxx, Xx Xxxx, Xxxxxxxx
(collectively, the "El Reno Branches"); (ii) 000 Xxxxx Xxxxxxxx, Enid, Oklahoma
(the "Xxxx Xxxxxx"); (iii) 000 Xxxxx Xxxx Xxxxxx, Xxxxxxxxx, Oklahoma (the
"Hennessey Branch"); (iv) 0000 Xxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx and 000 Xxxxx
Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx (collectively, the "Kingfisher Branches"); and
(v) 00000 Xxxxxx Xxxxxx Xxxxx, Xxxxxxxx Xxxx, Xxxxxxxx (the "Oklahoma City
Branch") (all together, the "Branch Offices"), and the assumption by Buyer of
such contract and lease liabilities and obligations, all as set forth in the
Agreement.
NOW, THEREFORE, for good and valuable consideration, receipt of which is
hereby acknowledged by Seller and Buyer, Seller hereby assigns, transfers and
sets over to Buyer all of Seller's rights and interest in and to, and Buyer does
hereby assume all of Seller's liabilities and obligations with respect to, the
following:
(a) All contracts related to the Safe Deposit Box Business at the
Branch Offices as further specified in the Agreement; and
(b) All contracts necessary for the operation or maintenance of the
Branch Offices as further specified in the Agreement.
This Assignment and Assumption of Contracts Agreement shall be binding
upon and shall inure to the benefit of Seller, Buyer and each of their
respective successors and assigns, and shall be subject to the terms and
conditions of the Agreement. In the event of a conflict between any of the terms
and provisions hereof and the Agreement, the Agreement shall be deemed to
control.
This Assignment and Assumption of Contracts Agreement, and the rights and
obligations of the parties hereunder, shall be governed by and construed in
accordance with the laws of the State of Oklahoma and applicable federal laws
and regulations.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Assumption of Contracts Agreement to be executed as of the date first above
written.
GOLD BANK
By:
---------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President
ASSIGNEE BANK
By:
---------------------------------
Name:
Title: President
2
EXHIBIT C
---------
BRANCH PURCHASE AND ASSUMPTION AGREEMENT
BETWEEN
GOLD BANK
AND
ASSIGNEE BANK
XXXX OF SALE
------------
This XXXX OF SALE is dated this _____ day of _______________, 2005 by GOLD
BANK, a Kansas banking corporation ("Seller"). Capitalized terms not otherwise
defined herein shall have the same meaning as specified in the Agreement (as
defined below).
W I T N E S S E T H:
WHEREAS, Seller and ASSIGNEE BANK, an Oklahoma banking corporation
("Buyer"), entered into a Branch Purchase and Assumption Agreement, dated as of
___________, 2005, (the "Agreement"), which provides for the sale by Seller to
Buyer of the Personal Property, Loans, Safe Deposit Box Business, Records and
Cash on Hand related to Seller's offices located at (i) 000 Xxxxx Xxxx Xxxxxx,
Xx Xxxx, Xxxxxxxx and 0000 Xxxxxxx Xxxx Xxxx, Xx Xxxx, Xxxxxxxx (collectively,
the "El Reno Branches"); (ii) 000 Xxxxx Xxxxxxxx, Enid, Oklahoma (the "Xxxx
Xxxxxx"); (iii) 000 Xxxxx Xxxx Xxxxxx, Xxxxxxxxx, Oklahoma (the "Hennessey
Branch"); (iv) 0000 Xxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx and 000 Xxxxx Xxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx (collectively, the "Kingfisher Branches"); and (v) 00000
Xxxxxx Xxxxxx Xxxxx, Xxxxxxxx Xxxx, Xxxxxxxx (the "Oklahoma City Branch") (all
together, the "Branch Offices"), all as set forth in the Agreement.
NOW, THEREFORE, Seller, for good and valuable consideration, receipt of
which is hereby acknowledged, does hereby grant, bargain, sell, assign, set
over, convey and transfer to Buyer all of its right, title and interest in and
to the following assets (the "Assets"):
(a) The furniture, fixtures, equipment, improvements and other items
of tangible personal property located at the Branch Offices as of
the close of business on the Closing Date, together with sign
structures and all personal property used in connection with the
Safe Deposit Box Business being transferred to Buyer, as more
specifically described in the Agreement;
(b) All of the Loans attributed to the Branch Offices as of the
Closing Date, as further described in Section 1.01(d) of the
Agreement, which assignment is being made without recourse against
Seller, together with any and all collateral for such Loans of every
kind and character in which Seller has an interest, including,
without limitation, mortgages, deeds of trust, security agreements,
financing statements, motor vehicle titles and guaranties, a list of
such specific Loans to be attached hereto on or before the
Adjustment Payment Date;
(c) All of Seller's Records; and
(d) All of Seller's Cash on Hand.
With respect to the Charged-Off Assets comprising the Loans, Seller also
conveys and assigns to Buyer all right and claims of Seller in any pending
litigation, claims for amounts written off the books of Seller and all claims
against guarantors of and obligors and co-obligors on, and other persons or
parties in any way obligated in respect of such Charged-Off Assets.
Seller does hereby covenant and agree to and with Buyer that it (i) is
seized of, and has the right to convey to Buyer, such title to the Assets as is
provided in the Agreement, (ii) will warrant and defend said title to the Assets
in the manner provided in the Agreement, and (iii) shall, from time to time, at
the request of Buyer, execute, acknowledge and deliver to Buyer any and all
further instruments, documents, endorsements, assignments, information,
materials and other papers as may be reasonably required to transfer the Assets
to Buyer and to give full force and effect to the full intent and purposes of
this Xxxx of Sale.
This Xxxx of Sale, and the rights and obligations of the parties
hereunder, shall be governed by and construed in accordance with the laws of the
State of Oklahoma and applicable federal laws and regulations.
IN WITNESS WHEREOF, Seller has caused this Xxxx of Sale to be duly
executed as of the date first above written.
GOLD BANK
By:
---------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President
2
EXHIBIT D
---------
BRANCH PURCHASE AND ASSUMPTION AGREEMENT
BETWEEN
GOLD BANK
AND
ASSIGNEE BANK
ASSIGNMENT, TRANSFER AND APPOINTMENT OF SUCCESSOR TRUSTEE FOR XXX ACCOUNTS
--------------------------------------------------------------------------
This ASSIGNMENT, TRANSFER AND APPOINTMENT OF SUCCESSOR TRUSTEE FOR XXX
ACCOUNTS is dated this _____ day of _______________, 2005, by and between GOLD
BANK, a Kansas banking corporation ("Seller"), and ASSIGNEE BANK, an Oklahoma
banking corporation ("Buyer"). Capitalized terms not otherwise defined herein
shall have the same meaning as specified in the Agreement (as defined below).
W I T N E S S E T H:
WHEREAS, Seller and Buyer entered into a Branch Purchase and Assumption
Agreement, dated as of ___________, 2005 (the "Agreement"), with respect to the
Seller's offices located at (i) 000 Xxxxx Xxxx Xxxxxx, Xx Xxxx, Xxxxxxxx and
0000 Xxxxxxx Xxxx Xxxx, Xx Xxxx, Xxxxxxxx (collectively, the "El Reno
Branches"); (ii) 000 Xxxxx Xxxxxxxx, Enid, Oklahoma (the "Xxxx Xxxxxx"); (iii)
000 Xxxxx Xxxx Xxxxxx, Xxxxxxxxx, Oklahoma (the "Hennessey Branch"); (iv) 0000
Xxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx and 000 Xxxxx Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx
(collectively, the "Kingfisher Branches"); and (v) 00000 Xxxxxx Xxxxxx Xxxxx,
Xxxxxxxx Xxxx, Xxxxxxxx (the "Oklahoma City Branch") (all together, the "Branch
Offices"), which provides for Seller to resign from its position as trustee and
custodian with respect to any XXX Account which includes as one or more of its
assets a Deposit being transferred to Buyer pursuant to the Agreement, and to
designate and appoint Buyer as the successor trustee and custodian with respect
to each such XXX Account, all as set forth in the Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt of which
is hereby acknowledged by Seller and Buyer, Seller and Buyer hereby take the
following actions:
(a) Seller hereby resigns as trustee and custodian with respect to
each XXX Account as to which Seller is a trustee or custodian and as
to which one or more of the assets included in such XXX Account is a
Deposit Liability associated with the Branch Offices being assumed
by Buyer, and hereby designates and appoints
Buyer as successor trustee and custodian under such XXX Account;
and
(b) Buyer hereby accepts such appointment and assumes and agrees to
perform the obligations required to be performed by it as trustee
and custodian with respect to each such XXX Account, as further
specified in the Agreement.
This Assignment, Transfer and Appointment of Successor Trustee for XXX
Accounts shall be binding upon and shall inure to the benefit of Seller, Buyer
and each of their respective successors and assigns, and shall be subject to the
terms and conditions of the Agreement. In the event of a conflict between any of
the terms and provisions hereof and the Agreement, the Agreement shall be deemed
to control.
This Assignment, Transfer and Appointment of Successor Trustee for XXX
Accounts, and the rights and obligations of the parties hereunder, shall be
governed by and construed in accordance with the laws of the State of Oklahoma
and applicable federal laws and regulations.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment,
Transfer and Appointment of Successor Trustee for XXX Accounts to be executed as
of the date first above written.
GOLD BANK
By:
---------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President
ASSIGNEE BANK
By:
---------------------------------
Name:
Title: President
2
EXHIBIT E
---------
LIMITED POWER OF ATTORNEY
(Oklahoma City, El Reno, Kingfisher, Hennessey and Enid Branchs)
THIS LIMITED POWER OF ATTORNEY is dated this _____ day of ______________,
2005, by GOLD BANK, a Kansas banking corporation, to be effective as of 5:00
p.m. on the date hereof.
W I T N E S S E T H:
WHEREAS, Gold Bank and ASSIGNEE BANK, an Oklahoma banking corporation
("Buyer"), entered into a Branch Purchase and Assumption Agreement, dated as of
_______________, 2005 (the "Agreement"), which provides for the sale by Gold
Bank to Buyer of certain personal property; and
WHEREAS, in the Agreement or in a Xxxx of Sale of even date herewith (the
"Xxxx of Sale"), Gold Bank has agreed, from time to time, at the request of
Buyer, to execute, acknowledge and deliver to Buyer any and all instruments,
documents, endorsements, assignments, information, materials and other papers
that may be reasonably required to (i) transfer to Buyer certain Assets (as
defined in the Xxxx of Sale) being acquired by Buyer pursuant to the Agreement,
including loans and the collateral therefor to the extent of Gold Bank's
interest in such collateral and files relating to such loans, (ii) enable Buyer
to xxxx, collect, service and administer the loans transferred thereby and (iii)
give full force and effect to the intent and purposes of the Xxxx of Sale.
NOW, THEREFORE, for good and valuable consideration, receipt of which is
hereby acknowledged, Gold Bank hereby appoints and authorizes for a period of 90
days from the date hereof, the President or any Vice President, or the Secretary
or any Assistant Secretary, of Buyer as its attorney-in-fact solely for the
purpose of endorsing, without recourse, and recording, pursuant to the Xxxx of
Sale and/or the Agreement, any and all instruments, documents, endorsements,
assignments, information, materials, and any other papers including, but not
limited to, certificates of title for vehicles and similar documents
(collectively, the "Collateral Instruments"), provided such limited power of
attorney is not intended to and does not convey to Buyer any right to endorse or
record any Collateral Instruments relating to collateral other than collateral
transferred pursuant to the Xxxx of Sale as described in the preceding
paragraph.
GOLD BANK
By:
---------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President
STATE OF KANSAS )
)
COUNTY OF XXXXXXX )
I, _________________________, a Notary Public in and for said county in
said state, hereby certify that Xxxxxxx X. Xxxxx, whose name as President of
Gold Bank is signed to the foregoing conveyance, and who is known to me,
acknowledged before me on this date that, being informed of the contents of the
conveyance, he, as such officer and with full authority, executed the same
voluntarily for and as the act of said bank. Given under my hand this _____ day
of _______________, 2005.
My Commission Expires:
------------------------------------
Notary Public
--------------------
Commission Number:____________
(SEAL)
2
