EXHIBIT 10.1
Execution Copy
PURCHASE AND ASSUMPTION AGREEMENT
This Purchase and Assumption Agreement, dated as of October 11, 2004 (this
"Agreement"), is by and between R-G Crown Bank, a federal savings bank organized
under the laws of the United States of America (the "Buyer"), SouthTrust Bank, a
bank organized under the laws of the State of Alabama (the "Seller"), and, for
the limited purpose of Section 11.16 hereof, R&G Financial Corporation, a
corporation organized under the laws of the Commonwealth of Puerto Rico ("R-G").
RECITALS
WHEREAS, SouthTrust Corporation, a Delaware corporation and the parent of
the Seller, and Wachovia Corporation, a North Carolina corporation ("Wachovia"),
have agreed to merge (the "Merger"), pursuant to an Agreement and Plan of
Merger, dated as of June 20, 2004, as restated (as the same may be further
amended, restated, or modified, the "Merger Agreement");
WHEREAS, in order to satisfy certain regulatory requirements relating to
the Merger, the Seller desires to sell certain of its financial centers,
together with the assets, the deposits and the other liabilities set forth
herein; and
WHEREAS, the Buyer desires to purchase the financial centers, including
the assets, and to assume the deposits and the other liabilities set forth
herein;
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the parties hereto hereby agree as follows:
I. DEFINITIONS
1.1 Certain Defined Terms.
Some of the capitalized terms appearing in this Agreement are
defined below. The definition of a term expressed in the singular also applies
to that term as used in the plural and vice versa. The word "including" as used
herein shall mean "including without limitation."
"ACH" has the meaning set forth in Section 2.7 of this Agreement.
"ATM Service Facilities" means the automated teller machine
facilities listed on Schedule 1.1(a).
"Accrued Interest" means with respect to the Deposits, Loans and
Cash Reserve Loans, as the case may be, the interest, dividends, fees, costs,
and other charges that have been accrued on but not paid, credited or charged to
such Deposits, Loans or Cash Reserve Loans.
"Adjusted Closing Statement" has the meaning set forth in Section
3.2(b) of this Agreement.
"Adjustment Payment" has the meaning set forth in Section 3.2(b) of
this Agreement.
"Affiliate" means a Person that directly or indirectly, through one
or more intermediaries, controls, is controlled by, or is under common control
with, a specified Person, except in those cases where the controlling Person
exercises control solely in a fiduciary capacity.
"Agreement" has the meaning set forth in the Recitals.
"Allocation" has the meaning set forth in Section 2.9 of this
Agreement.
"Amount of Premium" has the meaning set forth in Section 3.1 of this
Agreement.
"Assets" means, collectively, (a) the Owned Real Property;(b) the
Seller's rights under the Real Property Leases and the Ground Lease and any
prepaid revenue received by the Seller in connection with the subleases
associated with the Financial Centers and listed on Schedule 1.1(g) prorated
from the Closing Date; (c) the Fixed Assets; (d) the Loans, including the
collateral for the Loans, and the Loan Instruments; (e) the cash on hand at the
Financial Centers, including ATM Service Facilities' cash, vault cash and
tellers' cash; (f) the Cash Reserve Loans, including the Loan Instruments, and
the Seller's rights under the Cash Reserve Lines of Credit; (g) the Overdrafts;
(h) any safe deposit box rental agreements relating to safe deposit boxes
located at the Financial Centers and any prepaid revenues received by the Seller
in connection with such rental agreements prorated from the Closing Date; (i)
the Seller's rights under the Other Assumed Contracts; (j) Prepaid Expenses; and
(k) the benefits, rights, rights of action and claims related to the Assets
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and the Liabilities acquired and assumed by the Buyer pursuant to the terms of
this Agreement.
"Benefit Plan" means any pension, profit-sharing, or other employee
benefit, fringe benefit, severance or welfare plan maintained by the Seller or
any of its Affiliates or with respect to which contributions are made by the
Seller or any of its Affiliates with respect to the Seller's Employees.
"Business Day" means any Monday, Tuesday, Wednesday, Thursday or
Friday on which the Seller is open for business.
"Buyer Material Adverse Effect" means an event, occurrence or
circumstance which has a material adverse effect on the Buyer's ability to
timely perform its obligations under this Agreement or consummate the
transactions contemplated by this Agreement.
"Cash Reserve Lines of Credit" means those consumer lines of credit
made available to customers of the Financial Centers as a protection against
overdrafts on the Deposit Accounts.
"Cash Reserve Loans" means those loans outstanding on the Closing
Date pursuant to Cash Reserve Lines of Credit; provided, however, Cash Reserve
Loans shall not include the Excluded Loans.
"Closing" means the purchase of the Assets by the Buyer and the
assumption of the Liabilities by the Buyer on the Closing Date.
"Closing Date" has the meaning set forth in Section 9.1 of this
Agreement.
"Closing Statement" has the meaning set forth in Section 3.2(a) of
this Agreement.
"Code" means the Internal Revenue Code of 1986, as amended, together
with the rules and regulations promulgated thereunder.
"Commercial Loans" means the commercial and commercial real estate
loans or other extensions of credit, including all legally binding commitments,
loans under negotiation, Participation Interests, Letters of Credit and other
obligations to extend credit, relating to the Financial Centers, as of August
31, 2004, and identified on Schedule 1.1(b), provided, however, that Commercial
Loans shall not include the Excluded Loans. Such Schedule 1.01(b) shall be
updated by the Seller in connection with the Seller's preparation of the Closing
Statement as set forth in Section 3.2, and
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shall include all such loans relating to the Financial Centers made by the
Seller in the ordinary course of business from August 31, 2004 through the
Closing Date.
"Comparable Job Offer" has the meaning set forth in Section 8.1(a)
of this Agreement.
"Confidentiality Agreement" has the meaning set forth in Section
11.1(f) of this Agreement.
"Consumer Loans" means the consumer, residential real estate,
installment loans, personal lines of credit, indirect loans and certain other
consumer lines of credit and loans or other extensions of credit, including all
legally binding commitments and obligations to extend credit, relating to the
Financial Centers, as of August 31, 2004, and identified on Schedule 1.1(c),
provided, however, that Consumer Loans shall not include the Excluded Loans.
Such Schedule 1.01(c) shall be updated by the Seller in connection with the
Seller's preparation of the Closing Statement as set forth in Section 3.2, and
shall include all such loans relating to the Financial Centers made by the
Seller in the ordinary course of business from August 31, 2004 through the
Closing Date.
"Deposit Accounts" means the deposit accounts at the Financial
Centers relating to the Deposits.
"Deposits" means all deposits (as defined in 12 U.S.C. Section
1813(l)) which are booked to each of the Financial Centers, including, without
limitation, consumer and business and commercial (i) demand deposits; (ii)
interest checking accounts; (iii) money market accounts; (iv) savings deposits;
(v) time deposits; (vi) jumbo time deposits; and (vii) deposits held pursuant to
Retirement Plans, including in each case Accrued Interest and both collected and
uncollected funds, but excluding (x) deposits held in accounts for which the
Seller acts as fiduciary (other than deposits held by Retirement Plans); and (y)
deposits constituting official checks, travelers checks, money orders or
certified checks.
"Disputed Owned Real Property" has the meaning set forth in Section
3.3(a) of this Agreement.
"Employees" means the employees of the Seller employed at the
Financial Centers and listed on Schedule 8.1. Schedule 8.1 contains a complete
and accurate list in all material respects (and the Seller will deliver a
revised Schedule 8.1 no fewer than fifteen (15) Business Days prior to the
Closing Date and on the Closing Date
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complete and accurate in all material respects) of all employees of the Seller
employed at the Financial Centers, their positions, their business locations,
their annual/weekly/hourly rates of compensation, average scheduled hours per
week and their status as full or part-time and active or on leave.
"Environmental Reports" has the meaning set forth in Section 4.11 of
this Agreement.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended.
"ERISA Affiliate" means any entity that is considered one employer
with the Seller under Section 4001 of ERISA or Section 414 of the Code.
"Excluded Liabilities" has the meaning set forth in Section 2.2(b)
of this Agreement.
"Excluded Loan" means with respect to the Commercial Loans, the
Consumer Loans and the Cash Reserve Loans, as of the Closing Date, (i)
non-accrual loans (which term shall include loans in which the collateral
securing the same has been repossessed or as to which collection efforts have
been instituted or claim and delivery or foreclosure proceedings have been
filed); (ii) loans 90 days or more past due as to principal or interest;(iii)
loans in connection with which the obligor has filed a petition for relief under
the United States Bankruptcy Code, or otherwise has indicated a refusal to pay
the Loan as it becomes due; or (iv) Commercial Loans with an internal risk
classification under the Seller's standards of 9 or 10.
"Fair Market Value" has the meaning set forth in Section 3.3 of this
Agreement.
"Federal Funds Rate" means, for any day, the rate per annum
(expressed on a basis of calculation of actual days in a year) equal to the
"near closing bid" federal funds rate published in The Wall Street Journal on
the Business Day following the Closing Date.
"Financial Centers" means those financial centers of the Seller
listed on Schedule 1.1(d), indicating whether such Financial Center is Owned
Real Property or subject to a Real Property Lease.
"Fixed Assets" means all fixtures (including signage poles),
leasehold improvements, furnishings (including furniture but excluding artwork
owned by the Seller), vaults, safe deposit boxes,
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equipment (including, for example, all ATM machines, but excluding any
proprietary or licensed software), communications equipment (other than voice
gateways and IP telephones), supplies (other than forms and other supplies which
bear the Seller's name or logo), and other personal property, which are owned by
the Seller and located at the Financial Centers and used by the Seller primarily
in conducting its business at the Financial Centers, including the assets set
forth on Schedule 1.1(e).
"Governmental Entity" means any government or any agency, bureau,
board, commission, court, department, official, political subdivision, tribunal
or other instrumentality of any government having authority in the United
States, whether federal, state or local.
"Ground Lease" means the ground lease associated with the Peach
Orchard Financial Center.
"Hazardous Material" means any substance (other than materials such
as toner used in the ordinary course of business) presently listed, defined,
designated or classified as hazardous, toxic, radioactive or dangerous or
otherwise regulated, under any applicable state or federal law relating to the
protection, preservation or restoration of the environment, including, but not
limited to, the following federal environmental laws: the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, the Superfund
Amendment and Reauthorization Act, the Water Pollution Control Act of 1972, the
Clean Air Act, the Clean Water Act, the Resource Conservation and Recovery Act
of 1976, the Solid Waste Disposal Act, the Toxic Substances Control Act and the
Insecticide, Fungicide and Rodenticide Act, each as amended.
"Knowledge" means the personal knowledge of those facts that are
actually known or that should have come to the attention of the Persons set
forth on Schedule 1.1(f), with respect to the Seller, and Schedule 1.1(f-1),
with respect to the Buyer, given the office, title or responsibilities of each
such Person and following reasonable investigation by such Persons of such other
officers and employees who would reasonably be expected to have knowledge of the
matter in question.
"Lakeland City Financial Center" means the Seller's financial center
located at 000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxx.
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"Lakeland City Financial Center Lease" means the lease agreement
pursuant to which the Lakeland City Financial Center is leased by the Seller.
"Leased Facilities" means the Lakeland City Financial Center and the
San Xxxx Financial Center, and any improvements thereon, which are or will be
leased under the Real Property Leases.
"Letters of Credit" means the letters of credit, including any
standby letter of credit, issued by the Seller and listed on Schedule 7.6 (which
Schedule 7.6 shall be updated on the Closing Date).
"Liabilities" means, collectively, (a) the Deposits, transferred on
the Closing Date, and all terms and agreements relating to the Deposit Accounts;
(b) the Seller's duties and responsibilities relating to the Deposits with
respect to (i) the abandoned property laws of any state,(ii) any legal process
which is served on the Seller on or before the Closing Date with respect to
claims against or for the Deposits that is not over and above the amount of the
Deposits; or (iii) any other applicable law; (c) the Seller's duties and
responsibilities with respect to the Real Property Leases and Ground Lease; (d)
the Seller's duties and responsibilities with respect to the Loans, including
the collateral for the Loans, and the Loan Instruments; (e) the Seller's duties
and responsibilities with respect to the Cash Reserve Lines of Credit and the
Cash Reserve Loans, including the Loan Instruments; (f) the Seller's duties and
responsibilities with respect to the Overdrafts; (g) the Seller's duties and
responsibilities with respect to the safe deposit boxes located at the Financial
Centers; (h) the Seller's duties and responsibilities with respect to the
Retirement Plans; and (i) the Seller's duties and responsibilities with respect
to the Other Assumed Contracts.
"Loan Instruments" means the loan agreements, promissory notes,
mortgages, deeds of trust, security agreements, pledge agreements, guaranty
agreements, insurance policies, financing statements, participation agreements
relating to Participation Interests, intercreditor agreements and any other such
contract documents relating to the Loans.
"Loans" means the Consumer Loans and the Commercial Loans; provided,
however, Loans shall not include the Excluded Loans.
"MAI Appraiser" has the meaning set forth in Section 3.3(a) of this
Agreement.
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"Material Defect" has the meaning set forth in Section 7.3(b) of
this Agreement.
"Mediator" means a firm of independent accountants of nationally
recognized standing (other than a firm that has performed services for the
Seller or the Buyer or any of their Affiliates during the past year) mutually
agreeable to the Seller and the Buyer.
"Other Assumed Contracts" has the meaning set forth in Section 6.10
of this Agreement.
"Overdrafts" means those overdrafts of the book balance of any
Deposit Accounts, which are not subject to Cash Reserve Lines of Credit.
"Owned Real Property" means (i) the land (including the improvements
thereon) on which are located any Financial Centers or ATM Service Facilities
that are listed as "Owned Real Property" on Schedule 1.1(d); and (ii) any
building or other improvements located on or relating to any such owned real
estate.
"Participation Interests" means any fractional interests held by the
Seller in commercial loans, whether as lead bank or as a participating lender,
which interests are evidenced by participation agreements or participation
certificates.
"Peach Orchard Financial Center" means the Seller's financial center
located at 0000 Xxxxx Xxxxxxx Xxxx, Xxxxxxx, Xxxxxxx.
"Permitted Encumbrances" means, with respect to any Asset, any of
the following items: (i) with respect to the Owned Real Property, easements,
restrictions, and other matters of record or visible from the ground, applicable
zoning laws, building restrictions and all other laws of duly constituted public
authorities, grants of public rights of way, standard exceptions in the title
insurance policy, and any defect in or other exception to title that does not
interfere in any material respect with the operation of the Owned Real Property
and Leased Facilities as a retail banking facility; (ii) with respect to the
Leased Facilities, the terms and conditions of the Real Property Leases; (iii)
liens for taxes or assessments that are not yet due and payable and that were
incurred in the ordinary course of business; (iv) liens imposed by law, which
were incurred in the ordinary course of business and do not secure indebtedness
for borrowed money, such as carriers', warehousemen's, materialmen's,
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vendor's and mechanics liens and other similar liens which do not materially
detract from the value of or interfere with the current use of the Assets;(v)
any lien, security interest or other charge securing or arising in connection
with any indebtedness, obligation, liability, claim, tax, cost or expense that
the MAI Appraiser took into account in determining Fair Market Value; and (vi)
any other encumbrances, claims, charges, security interests, or liens which do
not materially detract from the value of or interfere with the current use of
the Assets.
"Person" means an association, a corporation, an individual, a
partnership, a trust or any other entity or organization, including a
Governmental Entity.
"Prepaid Expenses" means any operating costs or other expenses
relating to the operation of the Financial Centers after the Closing Date which
were paid by the Seller on or prior to the Closing Date.
"Purchase Price" has the meaning set forth in Section 3.1 of this
Agreement.
"Real Property Leases" means the Lakeland City Financial Center
Lease and the San Xxxx Financial Center Sublease.
"Retained Names and Marks" has the meaning set forth in Section
11.1(d) of this Agreement.
"Retirement Plans" means those non-discretionary individual
retirement accounts and qualified retirement plan accounts relating to the
Deposits for which the Seller acts as custodian or trustee.
"San Xxxx Agreement" has the meaning set forth in Section 6.9 of
this Agreement.
"San Xxxx Financial Center" means the Seller's financial center
located at 0000 Xxx Xx. Xxxxxxxxx Xxxx, Xxxxxxxxxxxx, Xxxxxxx.
"San Xxxx Financial Center Sublease" means the sublease agreement
pursuant to which the San Xxxx Financial Center will be subleased by the Seller
to the Buyer.
"San Xxxx Purchaser" has the meaning set forth in Section 6.9 of
this Agreement.
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"Seller Litigation" has the meaning set forth in Section 11.1(e) of
this Agreement.
"Seller Material Adverse Effect" shall mean an event, occurrence or
circumstance which has, or is reasonably likely to have, a material adverse
effect on the business, results of operations or financial condition of the
business represented by the Assets, taken as a whole, or the Seller's ability to
timely perform its obligations under this Agreement or consummate the
transactions contemplated by this Agreement; provided, that a Seller Material
Adverse Effect shall not include (i) events or conditions generally affecting
the financial services industry or effects resulting from general economic
conditions (including changes in interest rates), changes in accounting
practices or changes to statutes, regulations or regulatory policies, that do
not have a materially more adverse effect on the Seller than that experienced by
similarly situated financial services companies; (ii) events, impacts or
conditions caused by the public announcement of, and response or reaction of
customers, vendors, licensors or employees of the Seller to, this Agreement or
any of the transactions contemplated by this Agreement; or (iii) events,
impacts, occurrences, circumstances, or conditions, including any delay in the
consummation of the transactions contemplated by this Agreement, relating to, or
arising directly or indirectly out of, the Merger.
"Settlement Payment" has the meaning set forth in Section 3.2(a) of
this Agreement.
"Transferred Employees" has the meaning set forth in Section 8.1(a)
of this Agreement.
"Wachovia" has the meaning set forth in the Recitals.
"Welfare Benefit Plans" means those Benefit Plans which are "welfare
benefit plans" as defined by ERISA.
"Working Agreement" has the meaning set forth in Section 2.7 of the
Agreement.
II. PURCHASE OF ASSETS AND ASSUMPTION OF LIABILITIES
2.1 Purchase of Assets.
Subject to the terms and conditions of this Agreement, the Seller
agrees to sell, assign and transfer possession of all right, title and interest
of the Seller in and to the Assets, and the Buyer
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agrees to purchase the same from the Seller, as of the close of business on the
Closing Date.
2.2 Assumption of Liabilities.
(a) Subject to the terms and conditions of this Agreement, the Buyer
agrees to assume, and thereafter honor and fully and timely, pay, perform
and discharge, when due, the Liabilities, as of the close of business on
the Closing Date.
(b) Notwithstanding anything to the contrary contained herein, the
Buyer shall not assume any duties, obligations or liabilities of the
Seller of any kind, whether known, unknown, contingent or otherwise, (i)
not relating to the Assets or the Liabilities, (ii) attributable to any
acts or omissions to act taken or omitted to be taken by the Seller (or
any of its direct or indirect subsidiaries) prior to the Closing Date in
violation of any applicable laws, contracts or fiduciary duties, (iii)
attributable to any causes of action, claims, suits or proceedings or
violations of law or regulation attributable to any acts or omissions to
act taken or omitted to be taken by the Seller (or any of its direct or
indirect subsidiaries) prior to the Closing Date, (iv) relating to tax
accruals of the Seller (or any of its direct or indirect subsidiaries),
(v) relating to or arising out of any item excluded pursuant to Section
6.5 or 7.3 or (vi) arising from circumstances, events or conditions prior
to the Closing Date and not expressly assumed hereunder (the "Excluded
Liabilities"). Without limiting the generality of the foregoing, it is not
the intention that the assumption by the Buyer of the Liabilities shall in
any way enlarge the rights of any third parties relating thereto. Nothing
contained in this Agreement shall prevent any party hereto from contesting
matters relating to the Liabilities with any third party obligee. From and
after the Closing Date, (i) the Buyer shall have complete control over the
payment, settlement or other disposition of the Liabilities and the right
to commence, control and conduct all negotiations and proceedings with
respect thereto and (ii) the Seller shall have complete control over the
payment, settlement or other disposition of the Excluded Liabilities and
the right to commence, control and conduct all negotiations and
proceedings with respect thereto. Except as otherwise provided in this
Agreement, (i) the Seller shall promptly notify the Buyer of any claim
made against it with respect to the Liabilities or the Assets and shall
not voluntarily make any payment of, settle or offer to settle, or consent
or compromise or admit liability with respect to, any
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Liabilities or Assets and (ii) the Buyer shall promptly notify the Seller
of any claim made against it with respect to the Excluded Liabilities and
shall not voluntarily make any payment of, settle or offer to settle, or
consent or compromise or admit liability with respect to, any Excluded
Liabilities.
2.3 Transfer and Availability of Books and Records.
On the Closing Date, or as soon thereafter as is practicable, the
Seller will transfer and deliver to the Buyer such books and records relating to
the Assets and the Liabilities as exist and are in the possession or control of
the Seller (other than Deposit history information), including all such files,
documents and records maintained on electronic or magnetic media in the
electronic database system of the Seller that are reasonably accessible on a
branch-by-branch basis (except that, subject to the same exceptions set forth in
the next to last sentence of this Section 2.3, the Seller shall be permitted to
retain such books and records that contain information primarily relating to
other assets and liabilities not constituting Assets and Liabilities; provided
that in any such case the Seller shall provide to the Buyer such portions or
copies of such books and records as are reasonably necessary to service the
Deposits and other Liabilities, the Loans and the Cash Reserve Loans on an
ongoing basis). All books and records relating to the Assets and the Liabilities
held by the Seller or the Buyer after the Closing Date shall be maintained in
accordance with (and for the period provided in) that party's standard
recordkeeping policies and procedures. Throughout such period, the party holding
such books and records shall comply with the reasonable request of the other
party to provide copies of specified documents; provided, however, the parties
shall not be required to provide access to, or copies of, any documents or
information to the other party to the extent that such access or copies would
violate or prejudice the legal rights of any customer or employee or
attorney-client privilege or would be contrary to law, rule, regulation or any
legal or regulatory order or process. The requesting party shall give reasonable
notice of any such request. For a period of ninety (90) days after the Closing
Date, the party providing copies of records hereunder shall do so without
charge, and thereafter it may charge its customary rate for providing such
copies.
2.4 Tax Matters.
(a) Notwithstanding Section 2.5, all sales and use taxes and any
interest and penalties thereon which are payable or arise as a result of
this Agreement or the consummation of any of the transactions contemplated
by this Agreement, and all real
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property transfer, recording and similar documentary taxes arising out of
the transfer of the Assets shall be paid one-half by the Buyer and
one-half by the Seller, and each of the Buyer, on the one hand, and the
Seller, on the other hand, shall indemnify and hold the other harmless
from and against any such taxes in excess of the portion to be paid by
such party.
(b) The Buyer shall not be responsible for, or have any liability
with respect to, taxes on any income to the Seller arising out of this
transaction.
2.5 Proration of Certain Expenses.
Subject to the provisions of Section 2.4, all operating expenses
related to the Financial Centers, including all rent, real estate taxes,
personal property taxes (tangible or intangible), utility, water and sewer
charges and assessments, and maintenance and service expenses, as well as
semiannual assessments paid to the Bank Insurance Fund or the Savings
Association Insurance Fund with respect to the Deposits, shall be prorated
between the Buyer and the Seller as of the close of business on the Closing Date
such that all such expenses related to the operation of the Financial Centers on
and prior to the Closing Date shall be paid by the Seller and all such expenses
related to the operation of the Financial Centers after the Closing Date shall
be paid by the Buyer.
2.6 Back Office Conversion.
The Seller and the Buyer shall cooperate with each other and shall
use their reasonable best efforts (consistent with their internal day-to-day
operations) in order to cause the timely transfer of information concerning the
Assets and the Liabilities, which is maintained on the Seller's data processing
systems so that the Buyer can incorporate such information into the Buyer's data
processing systems no later than the opening of business on the Business Day
following the Closing Date.
2.7 Processing of Certain Items Pre and Post Closing.
A draft of the written practices and procedures under which the
Buyer and the Seller shall, among other things, complete the conversion of the
Financial Centers and handle certain post closing matters, including, without
limitation, all items (including, for example, Automated Clearing House ("ACH")
and electronic funds transfer items) relating to the Assets and the Liabilities,
which are presented or returned following the Closing Date, and any claims
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relating to such items, is attached to this Agreement as Exhibit A (the "Working
Agreement"). As promptly as practicable following the execution of this
Agreement, the parties agree to finalize the Working Agreement, which shall be
substantially in the form of Exhibit A. Notwithstanding the foregoing, it is
understood and agreed that the post-Closing exchange of ACH and paper items
(checks and deposits) between the Seller and the Buyer shall continue for a
period of 90 days after the Closing Date, and any items submitted to the Seller
following the expiration of such 90 day period shall be returned by the Seller.
If, at the Seller's option, any such item is not returned, the Buyer shall pay a
per item fee of $5.00 for each ACH or paper item not returned after such 90 day
period.
2.8 Information Returns.
Unless otherwise agreed by the Buyer and the Seller in writing, (i)
the Seller will report to the applicable tax authorities and customers of the
Financial Centers all reportable payments made or received in connection with
the Financial Centers (including without limitation amounts reportable on
Internal Revenue Service Form 1099) from January 1 of the year of the Closing
Date through and including the Closing Date and, in connection with any such
payments, shall withhold and pay over to the applicable tax authorities any
amounts required to be so withheld and paid over and (ii) the Buyer will report
to the applicable tax authorities and customers of the Financial Centers all
reportable payments made or received in connection with the Financial Centers
(including without limitation amounts reportable on Internal Revenue Service
Form 1099) from the day after the Closing Date through and including December 31
of the year of the Closing Date and, in connection with any such payments, shall
withhold and pay over to the applicable tax authorities any amounts required to
be so withheld and paid over. For purposes of the foregoing, the term reportable
payments as used in this Section 2.8 shall include, but shall not be limited to,
interest paid on the Deposits, interest received on the Loans and the Cash
Reserve Loans, and any other information returns required with respect to the
Assets and the Liabilities. The Buyer and the Seller shall retain, in accordance
with their respective standard recordkeeping policies and procedures, and
provide the other with all records or other information that may be reasonably
relevant to the preparation of any returns, or the conduct of any audit or
examination, or other proceeding relating to taxes.
2.9. Allocation of Purchase Price.
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(a) No later than 30 calendar days after the Closing Date, the
Seller shall deliver to the Buyer a statement setting forth an allocation
of the Purchase Price paid in respect of the Assets (for Federal, state
and local tax purposes) in accordance with the rules under Section 1060 of
the Code (the "Allocation"). The Buyer shall have a period of ten Business
Days following receipt of the Allocation in which to review the Allocation
and raise any objections that the Buyer may have. Unless the Buyer timely
objects, the Allocation shall become binding on the parties without
further adjustment. If the Buyer timely objects, the Seller and the Buyer
shall use their reasonable best efforts to resolve the disagreement during
the ten-day period following the Buyer's notice. If the disagreement is
not resolved during such ten-day period, the dispute shall be referred to
the Mediator and such Allocation shall be modified by any resolution and
thereupon such Allocation shall become final and binding. The Buyer and
the Seller shall jointly bear the costs of such Mediator.
(b) The parties recognize that the Purchase Price does not include
the Buyer's acquisition expenses and the Buyer shall allocate such
expenses appropriately. The parties agree to file their federal income tax
returns and their other tax returns (including any forms or reports
required to be filed pursuant to Section 1060 of the Code or any
provisions of state and local law) reflecting such allocation and shall
take no position contrary thereto unless required to do so pursuant to a
determination (as defined in Section 1313(a) of the Code). The Buyer and
the Seller shall promptly inform each other of any challenge by any
Governmental Entity to the Allocation and agree to consult with and keep
each other reasonably informed with respect to the status of and any
material discussion, proposal or submission with respect to, any
challenge.
2.10 Severability of Assets, Liabilities and Financial Center Locations.
Notwithstanding anything to the contrary set forth in this
Agreement, the inability of the Seller to deliver a particular Financial Center
in accordance with the terms of this Agreement, including as a result of a
condemnation or casualty of the Owned Real Property or Leased Facilities or, in
the case of the Lakeland City Financial Center, the inability of the Seller and
the Buyer to obtain any required consent to the assignment of the Lakeland City
Financial Center Lease, shall not affect the Buyer's obligation to purchase the
Assets and assume the Liabilities associated with such Financial
15
Center (other than the affected Owned Real Property or the assumption of the
Lakeland City Financial Center Lease) or purchase the remaining Financial
Centers, including all Assets and Liabilities attributable to such other
Financial Centers. In the event any Owned Real Property or Leased Facilities is
partially (in any material respect) or totally damaged or destroyed by fire,
flood, earthquake or other casualty, between the date hereof and the Closing
Date, the Seller shall as promptly as practicable notify the Buyer of such
casualty and, at the election of the Buyer, the Seller shall (i) at the Closing
assign such claim and all insurance proceeds relating thereto to the Buyer, or
(ii) (x) with respect to the Owned Real Property, reduce the Purchase Price by
an amount equal to the greater of any diminution in the Fair Market Value (which
shall be determined pursuant to the procedures set forth in Section 3.3 hereof)
of such Financial Center and the cost of repairing the Financial Center (as
agreed to in good faith by the Buyer and the Seller), or (y) with respect to the
Leased Facilities, reduce the Purchase Price by an amount equal to the cost of
repairing the Financial Center (as agreed to in good faith by the Buyer and the
Seller).
2.11 Arrangements Regarding Retirement Plans.
On or before the Closing Date, the Seller shall cause notice to be sent to
each depositor of a Deposit held by the Seller pursuant to the Retirement Plans
regarding the resignation of the Seller and the appointment of the Buyer as
custodian or trustee, as applicable. The Buyer and the Seller shall enter into
an agreement effective as of the Closing Date, in the form mutually acceptable
to the Buyer and the Seller, pursuant to which the Seller shall appoint the
Buyer as the Seller's agent with respect to the Retirement Plan Deposits during
the period commencing on the Closing Date and ending on the date on which the
Seller's resignation as custodian or trustee, as applicable, can first become
effective in accordance with the terms of the applicable Retirement Plan. Such
agreement shall further provide that, effective upon termination of such
applicable agency period, the Seller appoints the Buyer as successor custodian
or trustee, as applicable, to the Retirement Plans. During such period of agency
and upon such appointment as successor custodian or trustee, as applicable, the
Buyer shall perform the services and carry out the duties and obligations
required of it as a custodian or trustee under the applicable plans, the Code,
and applicable federal and state laws and regulations.
III. CONSIDERATION
3.1 Calculation.
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In consideration of the Buyer's purchase of the Assets and its
assumption of the Liabilities, the Seller agrees to pay to the Buyer an amount
equal to the Deposits (as of the Closing Date), plus Accrued Interest thereon,
plus safe deposit rental payments and lease payments under any subleases
collected by the Seller applying to periods after the Closing Date, less the sum
of the following (the "Purchase Price"), in each case calculated as of the close
of business on the Closing Date:
(i) the aggregate net book value of the Fixed Assets as
reflected in the books and records of the Seller;
(ii) the aggregate Fair Market Value in consideration of the
Owned Real Property;
(iii) the aggregate outstanding principal amount of the Loans
and the Cash Reserve Loans, plus Accrued Interest thereon;
(iv) the aggregate amount of cash on hand at the Financial
Centers, including ATM Service Facilities' cash, vault cash and
tellers' cash;
(v) the aggregate outstanding principal amount of the
Overdrafts;
(vi) the Prepaid Expenses;
(vii) the net amount (which may be a negative amount) of taxes
payable by the Buyer and the Seller under Section 2.4 (i.e., the
amount payable by the Buyer less the amount payable by the Seller);
(viii) the net amount (which may be a negative amount) of any
adjustments under Section 2.5 (i.e., the amount payable by the Buyer
less the amount payable by the Seller); and
(ix) an amount equal to twenty (20) percent of the average
daily Deposits for the fifteen (15) day period preceding the Closing
Date (for the avoidance of doubt, it is understood and agreed that
for purposes of this calculation Deposits shall include any Deposits
existing during such calculation period regardless of whether any
such Deposits exist and are transferred to the Buyer on the Closing
Date)(the "Amount of Premium"); provided, however, for
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purposes of calculating the Amount of the Premium, the Deposits
shall not include public deposits or, to the extent the aggregate
amount of jumbo time deposits (which for purposes of this Section
3.1(ix) shall mean those time deposits equal to $100,000 or greater)
at the Financial Centers exceeds $50,000,000, the amount of such
jumbo time deposits in excess of $50,000,000.
As described in Section 3.2, the Purchase Price shall be paid in the
form of the Settlement Payment plus or minus, as the case may be, the Adjustment
Payment.
3.2 Settlement.
(a) Not later than the Business Day following the Closing Date, the
Seller shall deliver to the Buyer the closing statement prepared in
accordance with the Seller's customary practices and procedures used in
preparing financial statements and in accordance with the terms of this
Agreement, substantially in the form of Exhibit B to this Agreement (the
"Closing Statement"), which shall be prepared and dated as of the close of
business on the Closing Date and be the basis of the payment to be made by
the Seller to the Buyer's account on the first Business Day following the
Closing Date (the "Settlement Payment").
(b) The parties shall cooperate in the preparation of the adjusted
closing statement within 30 days after the Closing Date which shall be
prepared in accordance with the Seller's customary practices and
procedures used in preparing financial statements and in accordance with
the terms of this Agreement, substantially in the form of Exhibit C to
this Agreement (the "Adjusted Closing Statement"), which shall be dated as
of the close of business on the Closing Date. The Seller shall afford the
Buyer and its accountants and attorneys reasonable access and opportunity
to review the relevant work papers and documentation used by the Seller in
preparing the Adjusted Closing Statement. On the Business Day after the
Buyer and the Seller agree to the Adjusted Closing Statement, or the Buyer
and the Seller receive notice of any determination of the Adjusted Closing
Statement under subsection (c) below, the Seller shall pay to the Buyer
(or the Buyer shall pay to the Seller) an amount (the "Adjustment
Payment") equal to the amount due stated on the Adjusted Closing
Statement, plus interest from the day after the Closing Date until the
calendar day before the Adjustment Payment is made at a rate per annum
(calculated daily based on a 360-day year) equal to the Federal Funds
Rate.
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(c) If the Buyer and the Seller are unable to agree on the
respective Adjusted Closing Statement within 30 days after the Closing
Date, either Buyer or the Seller may submit the matter to the Mediator,
which shall determine all disputed portions of the Adjusted Closing
Statement in accordance with the terms and conditions of this Agreement
within 30 days after the submission. The Buyer and the Seller shall each
pay half of the fees and expenses of the Mediator, except that the
Mediator may assess the full amount of its fees and expenses against the
relevant party if it determines that such party negotiated the relevant
Adjusted Closing Statement in bad faith. The Adjusted Closing Statement,
as agreed upon by the Buyer and the Seller and/or determined under this
subsection, shall be final and binding upon the parties.
(d) The Settlement Payment and the Adjustment Payment shall each be
made by wire transfer of immediately available funds to the account of the
party receiving the payment, which account shall be identified by the
party receiving the funds to the other party not less than two Business
Days prior to such payment.
3.3 Determination of Fair Market Value for Owned Real Property.
(a) The fair market value of each of the Owned Real Property for
purposes of Section 3.1(ii) (the "Fair Market Value") shall be determined
in accordance with this Section 3.3. No later than the 20th day after the
date hereof, the Buyer shall have (i) selected an MAI appraiser in good
faith (an "MAI Appraiser") to conduct the appraisal of each of the Owned
Real Property under this Section 3.3, and (ii) caused such MAI Appraiser
to have delivered its appraisal to the Seller setting forth its estimate
of the Fair Market Value of the Owned Real Property (such appraisal to be
delivered no later than the 45th day after the date hereof). The Buyer
shall pay the fees and expenses of the Buyer's MAI Appraiser. The Seller,
by not later than the 15th day after the receipt of the foregoing
appraisal, shall notify the Buyer in writing (1) that the Seller agrees
with such appraisal with respect to any of the Owned Real Property (in
which case such appraisal will be used to determine Fair Market Value
pursuant to this Section 3.3 for each such Owned Real Property) or (2)
that the Seller does not agree with such appraisal with respect to any of
the Owned Real Property (each such Owned Real Property appraisal that the
Seller disputes shall be referred to herein as, the "Disputed Owned Real
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Property"). Within 10 days after providing notice to the Buyer of the
Disputed Owned Real Property and if the Seller and the Buyer cannot
otherwise mutually agree on the Fair Market Value with respect to each of
the Disputed Owned Real Property, then by not later than the fifteenth day
after giving the notice provided for in such clause (2), the Seller shall
have (x) selected an MAI Appraiser to conduct an appraisal of each of the
Disputed Owned Real Property, and (y) caused such MAI Appraiser to have
delivered its appraisal to the Buyer setting forth its estimate of the
Fair Market Value of the Disputed Owned Real Property (such appraisal to
be delivered no later than the 30th day after the giving of the notice
provided for in clause (2)). The Seller shall pay the fees and expenses of
the Seller's MAI Appraiser. If whichever is the higher of the appraisals
prepared by the Buyer's MAI Appraiser and the Seller's MAI Appraiser with
respect to the Disputed Owned Real Property does not exceed whichever is
the lower of such appraisals by more than 10%, then the Fair Market Value
for such Disputed Owned Real Property for purposes of this Section 3.3
shall be the average of the amount reflected in such two appraisals. If
the higher of the appraisals prepared by the Buyer's MAI Appraiser and the
Seller's MAI Appraiser with respect to the Disputed Owned Real Property
exceeds whichever is the lower of such appraisals by more than 10%, then
the two MAI Appraisers shall select a third MAI Appraiser whose appraisal
will then be compared with the other two appraisals, and the two
appraisals of the three which are closest in value will then be averaged
to conclusively determine the Fair Market Value of the Disputed Owned Real
Property. The expenses of such third MAI Appraiser shall be borne equally
by the Buyer and the Seller.
(b) Each MAI Appraiser shall determine the Fair Market Value of the
Owned Real Property in accordance with customary practices and procedures
for a Member of the Appraisal Institute. Each MAI Appraiser shall make its
determination of Fair Market Value based on the definition agreed upon by
agencies regulating federal financial institutions as set forth in The
Dictionary of Real Estate Appraisal, Fourth Edition, published by the
Appraisal Institute, which definition is based upon "the most probable
price" for which a property should sell after reasonable exposure in a
competitive and open market under all conditions requisite to a fair sale,
with the buyer and seller each acting prudently and knowledgeably, and
assuming the price is not affected by undue stimulus. The MAI Appraiser
shall take into account the physical condition of the Owned Real Property
as used solely for its current use, including all liabilities,
20
liens, and other encumbrances to which the Owned Real Property is subject
and the environmental condition of the Owned Real Property; provided,
however, that if any such matter is remedied by the Seller, including cure
of a Material Defect as set forth in Section 7.3, then the Fair Market
Value and/or the appraisal shall be accordingly adjusted to reflect that
such matter no longer affects the Fair Market Value of the Owned Real
Property. The Fair Market Value shall not include any value attributable
to the Fixed Assets.
3.4 Overdraft Repurchases.
Subject to the provisions set forth in this Section 3.4, the Seller
agrees to repurchase from the Buyer, on demand, Overdrafts outstanding on the
Closing Date that have remained outstanding for 60 calendar days following the
Closing Date. Such repurchase shall occur within five Business Days following
the 60-day period. The amount of such repurchase shall be equal to the lesser of
(a) the balance of the Overdraft as of the Closing Date or (b) the lowest
balance of the Overdraft during such 60-day period. Notwithstanding the Seller's
obligation to repurchase Overdrafts, the Buyer shall use its reasonable best
efforts consistent with practices it follows for its own accounts to collect
such Overdrafts prior to the expiration of such 60-day period and to assist the
Seller in collecting overdrafts after repurchase by the Seller; provided,
however, that the Buyer's reasonable best efforts to collect Overdrafts shall
not require that it initiate or pursue any legal action against any Person.
3.5 Safe Deposit Box Rental Agreements.
Safe deposit box rental payments collected by either the Seller or the
Buyer applying to periods both before and after the Closing Date shall be
prorated as of the Closing Date.
IV. SELLER'S REPRESENTATIONS AND WARRANTIES
The Seller makes the following representations and warranties to the
Buyer.
4.1 Organization, Power and Authority.
(a) The Seller is a state chartered bank duly organized under the
laws of the State of Alabama, validly existing and in good standing. The
Seller has the corporate power and authority to enter into and perform
this Agreement and any other documents
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or instruments executed pursuant hereto. The execution and delivery of
this Agreement and any other document or instruments hereto have been duly
authorized by all necessary corporate action by the Seller. Upon execution
and delivery by the parties, this Agreement and any other documents or
instruments hereto will constitute valid and binding obligations of the
Seller, enforceable in accordance with its terms, subject to bankruptcy,
insolvency and other similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles.
(b) The performance of this Agreement by the Seller will not violate
any provision of the charter or bylaws of the Seller, or any applicable
law, rule, regulation, or order or any contract or instrument by which the
Seller is bound, except for such violations of law, rule, regulation,
order or contract, which alone, or taken in the aggregate, would not
reasonably be expected to have a Seller Material Adverse Effect.
4.2 Litigation and Regulatory Proceedings.
(a) There are no actions, complaints, petitions, suits or other
proceedings, or any decree, injunction, judgment, order or ruling,
entered, promulgated or pending or, to the Seller's Knowledge, threatened
against the Seller or any of its Assets or its Liabilities, which alone,
or taken in the aggregate, reasonably would be expected to have a Seller
Material Adverse Effect. No governmental agency has notified the Seller
that it would oppose or not approve or consent to the transactions
contemplated by this Agreement and the Seller knows of no reason for any
such opposition, disapproval or nonconsent.
(b) As of the date hereof, there are no pending, or to the Seller's
Knowledge, threatened disputes or controversies between the Seller and
Wachovia that would reasonably be expected to prevent or materially delay
the Seller from being able to perform its obligations under this Agreement
or impair the validity or consummation of this Agreement or the
transactions contemplated hereby.
4.3 Consents and Approvals.
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No consents, approvals, filings or registrations with any third
party, except as contemplated by Section 6.2, or any public body, agency or
authority are required in connection with the Seller's consummation of the
transactions contemplated by this Agreement, other than any required lessor
consents to the assignment of the Lakeland City Financial Center Lease and the
Ground Lease, any consents required for the assignment of the Participation
Interests, the Letters of Credit and as may be required as a result of any facts
or circumstances relating solely to the Buyer.
4.4 Owned Real Property.
(a) The Seller will convey good and marketable title, such as is
insurable by any reputable title insurance company, to its Owned Real
Property, free and clear of all encumbrances, except for Permitted
Encumbrances. The Seller shall maintain in effect from the date of this
Agreement until the Closing Date, all property, liability, fire and
casualty insurance in effect as of the date hereof with regard to its
Owned Real Property, including the structures, leasehold improvements and
its Fixed Assets.
(b) Except as set forth on Schedule 4.4(b), the Seller has not
received any written notice of a current violation, citations, summonses,
subpoenas, compliance orders, directives, suits, other legal process, or
other written notice of potential liability under applicable zoning,
building, fire and other applicable laws and regulations relating to its
Owned Real Property.
(c) Except as set forth on Schedule 4.4(d), the Seller has not
received any written notice of any actual or pending condemnation
proceeding relating to the Financial Centers.
(d) Except with respect to the San Xxxx Financial Center as
described in Section 6.9 of this Agreement and except as set forth on
Schedule 4.4(d), the Seller has not entered into any agreement regarding
the Owned Real Property, and the Owned Real Property is not subject to any
claim, demand, suit, lien, proceeding or litigation of any kind, pending
or outstanding, or to the Seller's Knowledge, threatened, which would be
binding upon the Buyer or its successors or assigns or materially affect
or limit the Buyer's or its successors' or assigns' use and enjoyment of
the Owned Real Property or which would materially limit or restrict the
Buyer's right or ability to enter into this
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Agreement and consummate the sale and purchase contemplated hereby.
4.5 Fixed Assets.
The Seller has good and marketable title to its Fixed Assets, free
and clear of all encumbrances, claims, charges, security interests, or liens, if
any, except for Permitted Encumbrances, and has the right to sell, convey,
transfer, assign and deliver to the Buyer all of the Fixed Assets. The Fixed
Assets are in good operating condition in all material respects, ordinary wear
and tear excepted.
4.6 Loans and Cash Reserve Loans.
(a) The Seller has full power and authority to hold the Loans and
Cash Reserve Loans, and has good and marketable title to its Loans and
Cash Reserve Loans free and clear of all liens and encumbrances, except
for Permitted Encumbrances. The Seller is authorized to sell and assign
its Loans and Cash Reserve Loans to the Buyer and, upon assignment, the
Buyer will have the rights of the Seller with respect to the Loans and
Cash Reserve Loans in accordance with the terms and conditions thereof.
(b) Each Loan and each Cash Reserve Loan was originated in
conformity in all material respects with applicable laws and regulations;
and its principal balance as shown on the Seller's books and records is
true and correct as of the last day shown thereon. None of the Loans or
Cash Reserve Loans is an Excluded Loan. The Seller has complied in all
material respects with all of its obligations under its Loan Instruments.
(c) Each of the Loans and Cash Reserve Loans (i) is the legal, valid
and binding obligation of the obligor, maker, co-maker, guarantor,
endorser or debtor (such person referred to herein as an "Obligor")
thereof or thereunder and is evidenced by legal, valid and binding
instruments executed by the respective Obligors, each of which at the time
of such execution had capacity to contract, and any signature on any Loan
Instruments is the true signature of the Obligor on the Loan or Cash
Reserve Loan involved, and (ii) is enforceable in accordance with its
terms (except as enforceability may be limited by bankruptcy laws and
other laws of similar nature relating to creditors rights).
(d) (i) the documentation relating to each Loan accurately reflects
the payment history, the outstanding
24
balance of the Loan, and all receipts pertaining to the Loan from the
obligor(s) thereof and all credits to which such obligor(s) are entitled,
(ii) with respect to each Loan that is secured, the Seller has a valid and
enforceable lien on the collateral described in the documents relating to
such Loan, and such lien has the priority described in the Seller's loan
files relating to such Loans (except as enforceability may be limited by
bankruptcy laws and other similar laws relating to creditors' rights and
principles of equity), (iii) no taxes or other liability of the Seller
shall accrue against or be collected from the Buyer out of any Loan by
reason of the purchase thereof by the Buyer, (iv) the Seller has paid or
caused to be paid any and all license, franchise, intangible, stamp or
other tax or fee due and owing to any state where a Loan originated, or
any political subdivision thereof, arising from or growing out of the
acquisition, collection or holding of any Loan, and (v) neither the Seller
nor any of its agents, officers, employees or representatives in any
manner has been guilty of any civil or criminal fraud with respect to the
creation of any Loan or with respect to the transfer, assignment and sale
of the same to the Buyer hereunder.
(e) Other than the representations and warranties in Section 4.6(a),
(b), (c) and (d), all Loans, Cash Reserve Loans and Loan Instruments
transferred to the Buyer on the Closing Date pursuant to Section 2.1 shall
be transferred on an "AS IS" basis and without recourse to the Seller and
without any representations or warranties as to the collectibility of any
such Loan or Cash Reserve Loan or the creditworthiness of any such
obligor.
4.7 Validity of and Compliance with Real Property Leases And Ground Lease.
The Lakeland City Financial Center Lease and the Ground Lease are,
and the San Xxxx Financial Center Sublease will be, valid and existing leases
under which the Seller, as lessee, is entitled to possession of the leased
premises. To the Seller's Knowledge, no event has occurred and is continuing,
nor has the Seller received any written notice, which constitutes a default by
the Seller under the Real Property Leases or Ground Lease or, to the Seller's
Knowledge, by the lessor, under the Real Property Leases or Ground Lease.
Subject to the Seller's obtaining any necessary lessor consents, the assignment
of such lease of such property will transfer to the Buyer all of the Seller's
rights under the Real Property Leases and Ground Lease.
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4.8 Compliance with Certain Laws.
The Deposit Accounts and the Cash Reserve Lines of Credit were
opened, extended or made, and have been maintained, in accordance with all
applicable federal and state laws, regulations, rules and orders, and the
Financial Centers have been operated in compliance with the Seller's policies
and procedures and all applicable federal and state laws, regulations, rules and
orders, except for such instances of noncompliance which do not have, and are
not reasonably likely to have, a Seller Material Adverse Effect.
4.9 FDIC Insurance/Community Reinvestment Act.
The Deposits are insured by the Federal Deposit Insurance
Corporation through the Bank Insurance Fund to the extent permitted by law, and
no action is pending or, to the Seller's Knowledge, threatened by the FDIC
against the Seller with respect to the termination of such insurance, and all
premiums and assessments required to be paid in connection therewith have been
paid when due by the Seller. The Seller has a Community Reinvestment Act rating
of "satisfactory".
4.10 Other Assumed Contracts.
Each Other Assumed Contract and safe deposit rental agreement is
valid, binding and in full force and effect and is enforceable in accordance
with its terms against the Seller, and, to the Seller's Knowledge, each other
party thereto, in each case except as such validity, binding effect or
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, receivership, conservatorship, fraudulent transfer, moratorium
(whether general or specific) or other law now or hereafter in effect affecting
the enforceability of creditors' rights generally. Neither the Seller nor, to
the Seller's Knowledge, any other party to any Other Assumed Contract, is in
default or breach thereunder and, to the Seller's Knowledge, there are no
disputes with respect thereto, no notice of default has been received by the
Seller in connection therewith, and, to the Seller's Knowledge, no event has
occurred that would constitute a default or breach, except, in each case, for
any default, breach or dispute which alone, or taken in the aggregate, would not
reasonably be expected to have a Seller Material Adverse Effect.
4.11 Environmental.
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The Seller will provide to the Buyer all phase I, phase II or other
environmental reports in the Seller's possession that have been prepared
previously with respect to the Owned Real Property and the Leased Facilities
(the "Environmental Reports"). Except as set forth in the Environmental Reports,
the Seller has no Knowledge of any violations of any environmental law or the
presence of any Hazardous Material on any of the Owned Real Property or the
Leased Facilities. Notwithstanding the foregoing and anything to the contrary
set forth in this Agreement, the Seller shall have no liability hereunder
relating to the environmental condition of the Owned Real Property or the Leased
Facilities except as set forth in Section 7.3 of this Agreement.
4.12 Labor Relations.
The Seller, with respect to the Employees, is not a party to, or
bound by, any collective bargaining agreement, contract or other agreement or
understanding with a labor union or labor organization, nor is it the subject of
a proceeding asserting that it has committed an unfair labor practice (within
the meaning of the National Labor Relations Act or any other similar or
comparable state law) or seeking to compel it to bargain with any labor
organization as to wages and conditions of employment, nor is there any strike
or other labor dispute involving it, pending or, to the Seller's Knowledge,
threatened, nor does the Seller have Knowledge of any activity involving a union
attempting to organize the Employees or the Employees seeking to certify a
collective bargaining unit. No Employee is a party to any individual contract,
written or oral, express or implied, for the employment of the Employee or the
provision of severance or change of control benefits (other than any Benefit
Plans or plans of the Seller applicable to employees of the Seller generally).
The Seller has complied in all material respects with all applicable federal and
state laws, regulations, rules and orders governing its Employees.
4.13 No Brokers.
No action has been taken by the Seller that would give rise to any
valid claim against any party hereto for a brokerage commission, finder's fee or
other like payment with respect to the transactions contemplated hereby, except
for the engagement of UBS Securities LLC and Wachovia Securities LLC (the fees
and cost of which shall not be borne by the Buyer).
4.14 Books, Records, Documentation, Etc.
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The books and records being transferred to the Buyer hereunder are
complete, correct and accurate in all material respects, and are in material
compliance with all applicable federal and state laws and regulations. The
deposit and lending-related forms, notices, statements, and related
documentation with respect to the Deposits and Loans, as well as the Seller's
policies, procedures, and practices with respect thereto, used in connection
with its banking operations comply in all material respects with applicable
federal and state laws and regulations.
4.15 Tax Matters
The Seller has paid or reserved for or will have paid or reserved
for prior to the Closing Date all federal, state and local taxes required to be
paid with respect to the Financial Centers, the non-payment of which would
result in a lien upon any of the Assets or would result in the Buyer becoming
liable or responsible therefor. The Seller has filed all real property and
personal property tax returns currently due relating to the Assets and has paid
all taxes shown as due thereon.
V. BUYER'S REPRESENTATIONS AND WARRANTIES
The Buyer makes the following representations and warranties to the
Seller.
5.1 Organization, Power and Authority.
(a) The Buyer is a federal savings bank duly organized under the
laws of the United States of America, validly existing and in good
standing. The Buyer has the corporate power and authority to enter into
and perform this Agreement and any other documents or instruments executed
pursuant hereto. The execution and delivery of this Agreement and any
other documents or instruments hereto have been duly authorized by all
necessary corporate action by the Buyer. Upon execution and delivery by
both parties, this Agreement and any other documents or instruments hereto
will constitute valid and binding obligations of the Buyer, enforceable in
accordance with its terms subject to subject to bankruptcy, insolvency and
other similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
28
(b) The performance of this Agreement by the Buyer will not violate
any provision of the Articles of Association, charter, Bylaws or similar
governing documents of the Buyer, or any applicable law, rule, regulation,
or order or any contract or instrument by which the Buyer is bound except
for such violations of law, rule, regulation, order or contract, which
alone, or taken in the aggregate, would not reasonably be expected to have
a Buyer Material Adverse Effect.
5.2 Litigation and Regulatory Proceedings.
There are no actions, complaints, petitions, suits or other
proceedings, or any decree, injunction, judgment, order or ruling, entered,
promulgated or pending or, to Buyer's Knowledge, threatened against the Buyer or
any of its properties or assets which alone, or taken in the aggregate,
reasonably would be expected to have a Buyer Material Adverse Effect. No
governmental agency has notified the Buyer or any Affiliate that it would oppose
or not approve or consent to the transactions contemplated by this Agreement,
and the Buyer knows of no reason for any such opposition, disapproval or
nonconsent.
5.3 Consents and Approvals.
Except for required regulatory approvals set forth on Schedule 5.3,
no consents, approvals, filings or registrations with any third party or any
public body, agency or authority are required in connection with the Buyer's
consummation of the transactions contemplated by this Agreement other than what
may be required as a result of any facts or circumstances relating solely to the
Seller.
5.4 Regulatory Capital and Condition.
The Buyer is in compliance with all of its regulatory capital
standards as of the date hereof, and has no reason to believe that it will be
unable to obtain the required regulatory approvals for the transactions
contemplated by this Agreement solely as a result of its current level of
regulatory capital. As of the date of this Agreement, there is no pending or, to
the Buyer's Knowledge, threatened legal or governmental proceedings against the
Buyer or any Affiliate that would affect the Buyer's ability to obtain the
required regulatory approvals or satisfy any of the other conditions required to
be satisfied in order to consummate any of the transactions contemplated by this
Agreement.
5.5 No Brokers.
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No action has been taken by the Buyer that would give rise to any
valid claim against any party hereto for a brokerage commission, finder's fee or
other like payment with respect to the transactions contemplated hereby.
VI. ADDITIONAL AGREEMENTS OF SELLER
6.1 Access to Seller's Premises, Records and Personnel.
(a) Upon execution of this Agreement, the Seller shall give the
Buyer and its representatives such access to the Financial Centers as the
Buyer may reasonably request, provided that the Buyer does not
unreasonably interfere with the business operations of the Financial
Centers and the Buyer coordinates and schedules any visits to the
Financial Centers by the Buyer or its representatives in advance with the
Seller. The Seller shall not be required to provide access to or to
disclose information where such access or disclosure would violate or
prejudice the legal rights of any customer or employee or attorney-client
privilege or would be contrary to law, rule, regulation or any legal or
regulatory order or process or any fiduciary duty or binding agreement
entered into prior to the date of this Agreement.
(b) Anything contained in this Agreement to the contrary
notwithstanding, the Seller shall not be required to disclose, or to cause
the disclosure to the Buyer or its representatives (or provide access to
any offices, properties, books or records of the Seller, that could result
in the disclosure to such Persons or others), of any tax returns and/or
any work papers relating thereto or any other confidential information
relating to income or franchise taxes or other taxes of the Seller, or
trade secrets, patent or trademark applications, or product research and
development belonging to or performed by or for the Seller, nor shall the
Seller be required to permit or to cause others to permit the Buyer or its
representatives to copy or remove from the offices or properties of the
Seller any documents, drawings or other materials that might reveal any
such confidential information; provided, however, the Buyer shall have
access to tax returns to the extent that liability for the taxes at issue
could be imposed on the Buyer.
(c) At the Buyer's request and subject to Section 11.11, the Seller
shall authorize and permit certain of its respective officers and members
of management to engage in discussions with
30
the Buyer for the purposes of discussing the operations of the Financial
Centers and negotiating and concluding management employment contracts,
employee benefit plans, and new incentive plans and the Buyer shall
maintain the confidentiality of any information furnished by such officers
or members of management of the Seller pursuant to such discussions with
the Buyer.
6.2 Regulatory Approvals.
The Seller agrees to use its reasonable best efforts to obtain
promptly any regulatory approval on which its consummation of the transactions
contemplated by this Agreement is conditioned. The Seller agrees to provide the
Buyer promptly with copies of the non-confidential portions of such applications
as filed. The Seller also agrees to cooperate with the Buyer in obtaining any
regulatory approval which the Buyer must obtain before the Closing. The Seller
shall notify the Buyer promptly of any significant development with respect to
any application it files under this Section.
6.3 Conduct of Business.
Except as provided in this Agreement, the Working Agreement, Schedule 6.3
or as may otherwise be agreed upon by the Buyer, the Seller (i) will, with
respect to the Financial Centers, use its commercially reasonable efforts to
preserve its business relationship with depositors, customers and others having
business relationships with it and whose accounts will be retained at the
Financial Centers, (ii) will continue to carry on its operations at its
Financial Centers, including with respect to rates offered on Deposits and its
interest rate or fee pricing policies with respect to the Loans and the Cash
Reserve Loans, until the Closing in the ordinary course of business, consistent
with prudent business practices in the markets in which the Financial Centers
operate; (iii) will underwrite and administer the Loans and the Cash Reserve
Loans in the ordinary course of its business in accordance with its customary
practices and applicable laws and regulations; (iv) will maintain the Financial
Centers in their current condition, ordinary wear and tear excepted and will not
terminate the operation of any Financial Center, unless those operations cease
due to events beyond the Seller's control or as required by law; and (v) will
not increase the salaries, remuneration, severance, benefits or compensation of,
or pay any bonus to, the Employees, except in the ordinary course of business
consistent with past practices, as may be required by applicable law, or as
required by any Benefit Plans applicable to employees of the Seller or Wachovia
generally. The Seller will notify the Buyer of any event of which the Seller
obtains Knowledge which
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would make any of its representations under Article IV of this Agreement false
in any material respect.
6.4 Covenant of Seller Not to Solicit.
The Seller hereby agrees that for a period of two (2) years from the
Closing Date, neither the Seller nor its Affiliates shall specifically target
and solicit customers of the Financial Centers whose Deposits or Loans are being
assumed or purchased by the Buyer; provided, however, that nothing in this
Section 6.4 shall (i) restrict general mass mailings, telemarketing calls,
statement stuffers, advertisements or other similar communications whether in
print, on radio, television, the Internet, or by other means that are directed
to the general public or to a group of customers who may include customers of
the Financial Centers, provided that such group is defined by criteria other
than primarily as customers of the Financial Centers,(ii) otherwise prevent the
Seller or its Affiliates from taking such actions as may be required to comply
with applicable federal or state laws, rules or regulations or from servicing or
communicating with the then-current customers of the Seller or its Affiliates,
or (iii) restrict or prevent the Seller or its Affiliates from soliciting or
providing any brokerage, capital markets, trust, investment advisory or any
other financial services or products to any customer whose Deposits are assumed
by, or whose Loan is assigned to, the Buyer pursuant to this Agreement or any
other customer, except that neither the Seller nor any of its Affiliates may
solicit any deposit or lending business that has the purpose or effect of
replacing in whole or in part any Deposit assumed by, or Loan assigned to, the
Buyer pursuant to this Agreement.
6.5 Consents.
The Seller agrees to use its reasonable best efforts to obtain from
lessors to the Lakeland City Financial Center Lease, the San Xxxx Financial
Center Sublease and Ground Lease any required consents to the assignment or
sublease of such leases and agreements that will occur as a result of this
Agreement or the transactions contemplated hereby. Notwithstanding the
foregoing, the Buyer agrees to cooperate with, and use its reasonable best
efforts to assist, the Seller in obtaining any required consents to the
assignment or sublease of such leases and agreements. If any such required
consent cannot be obtained, then, subject to any required regulatory approval,
including the approval of the U.S. Department of Justice and the Board of
Governors of the Federal Reserve System, and notwithstanding any other provision
hereof, all Assets and Liabilities associated with the Lakeland City Financial
Center or the San Xxxx Financial Center,
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other than any such lease or agreement as to which consent cannot be obtained,
shall nevertheless be transferred to Buyer at the Closing and the parties shall
negotiate in good faith and the Seller and the Buyer shall use reasonable best
efforts to make alternative arrangements, including subleases to the extent
applicable, reasonably satisfactory to the Buyer and the Seller that provide the
Buyer, to the maximum extent reasonably possible, the benefits of such Leased
Facilities in a manner that does not violate the underlying lease or agreement.
Notwithstanding the foregoing or any other provision hereof, in the event that
the Seller and the Buyer are unable to obtain any required consent of the lessor
of the Lakeland City Financial Center or the San Xxxx Financial Center for the
assignment or sublease thereof to the Buyer hereunder and the Seller and the
Buyer are unable to reach a mutually satisfactory alternative arrangement
pursuant to the immediately preceding sentence, then, subject to any required
regulatory approval, including the approval of the U.S. Department of Justice
and the Board of Governors of the Federal Reserve System, the Buyer may lease or
obtain alternative facilities for the Lakeland City Financial Center and the
Lakeland City Financial Center Lease or the San Xxxx Financial Center and the
San Xxxx Financial Sublease shall not be assigned or transferred (or the
property subleased) to the Buyer, and in such case, and in the case of any
alternative arrangements implemented as aforesaid in order to provide the Buyer
the benefits of such Leased Facilities, the Purchase Price shall be
appropriately and reasonably reduced in order to compensate the Buyer for the
exclusion of such Leased Facilities. If any alternative arrangement is
implemented between the Seller and the Buyer at or prior to the Closing, the
parties shall, if necessary pursuant to the terms of the alternative
arrangement, continue after the Closing to exercise reasonable efforts to obtain
the related consents which could not be obtained prior to the Closing, and if
such consent is obtained, the Seller shall assign the applicable lease or
agreement or sublease the property and the parties shall restructure the
applicable alternative arrangement, including appropriate reimbursement to the
Seller of any reduction in the Purchase Price relating to such alternative
arrangement.
6.6 Sweep Accounts.
The Seller agrees that all cash automatically transferred from the
Deposit Accounts by the Seller on the Business Day prior to the Closing Date
into overnight sweep accounts shall be returned to the respective Deposit
Accounts as of the next Business Day after the Closing Date, together with any
interest, or income accrued in connection with such arrangement.
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6.7 Arrangements Regarding Participation Interests.
During the period from the date hereof through the Closing Date, the
Seller and the Buyer will cooperate with each other to obtain any consents that
may be necessary to allow the Seller to transfer the Participation Interests to
the Buyer.
6.8 Insurance.
The Seller will maintain in effect until the Closing Date all
casualty and public liability policies relating to the Owned Real Property and
the Leased Facilities and the activities conducted thereon and maintained by the
Seller on the date hereof or procure comparable replacement policies and
maintain such replacement policies in effect until the Closing Date. As of the
Closing Date, the Seller's insurance coverage shall cease, and from and after
the Closing Date the Buyer shall be responsible for all insurance protection for
the Owned Real Property and the Leased Facilities and the activities conducted
thereon.
6.9 San Xxxx Financial Center.
The Seller expects to enter into an agreement with a third party
(the "San Xxxx Purchaser") providing for the sale of the San Xxxx Financial
Center to the San Xxxx Purchaser, effective upon consummation of the Merger (the
"San Xxxx Agreement"). Pursuant to the terms of the San Xxxx Agreement, the San
Xxxx Purchaser will lease the San Xxxx Financial Center to the Seller and, in
turn, the Seller will sublease to the Buyer the San Xxxx Financial Center upon
the terms described in Schedule 6.9. In the event that the San Xxxx Agreement is
not executed or does not otherwise become effective prior to the Closing Date,
the Seller shall, to the extent legally permissible, lease the San Xxxx
Financial Center to the Buyer upon the terms described in Schedule 6.9.
6.10 Other Assumed Contracts.
The Seller shall deliver to the Buyer within 45 days after the date
hereof a complete and accurate list of any individual Financial Center
maintenance contract or equipment lease that relates to the operation of the
Financial Centers, is not subject to a master lease pursuant to which equipment
is leased by the Seller or its Affiliates at locations other than the Financial
Centers and is capable of being assigned to the Buyer (the "Other Assumed
Contracts"). At the option of the Buyer, the Seller shall use its commercially
reasonable efforts, and shall cooperate with the Buyer, in obtaining
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any required consent to assign any such Other Assumed Contract to the Buyer.
VII. ADDITIONAL AGREEMENTS OF BUYER
7.1 Regulatory Approvals/Certain Notices.
The Buyer shall prepare and file, with the reasonable assistance of
the Seller, as soon as practicable, but not later than fifteen (15) calendar
days following the date of this Agreement, all applications, as required by law,
to the appropriate federal and/or state regulatory authorities for approval to
effect the transactions contemplated by this Agreement and shall use its good
faith and reasonable best efforts to obtain such approvals. The Buyer also
agrees to cooperate with the Seller in obtaining any regulatory approval which
the Seller must obtain before the Closing. The Buyer shall notify the Seller
promptly of any significant development with respect to any application it files
under this Section. The Buyer also shall provide the Seller with a copy of any
regulatory approval it receives under this Section, promptly after the Buyer's
receipt of the same. In addition, the Buyer will notify the Seller of any event
of which the Buyer obtains Knowledge which would make any of its representations
under Article V of this Agreement false in any material respect
7.2 Change of Name, Etc.
Immediately after the Closing, the Buyer will (a) change the name
and logo on all documents and facilities relating to the Assets and the
Liabilities to the Buyer's name and logo, (b) notify all persons whose Cash
Reserve Loans, Loans, or Deposits are transferred under this Agreement of the
consummation of the transactions contemplated by this Agreement, and (c) provide
all appropriate notices to the Federal Deposit Insurance Corporation and any
other regulatory authorities required as a result of the consummation of such
transactions. The Seller shall cooperate with any commercially reasonable
request of the Buyer directed to accomplish the removal of the Seller's signage
by the Buyer and the installation of the Buyer's signage by the Buyer at the
Financial Centers; provided, however, that (i) all such removals and all such
installations shall be at the expense of the Buyer, (ii) such removals and
installations shall be performed in such a manner that does not unreasonably
interfere with the normal business activities and operations of the Financial
Centers, (iii) such installed signage shall comply with the applicable Real
Property Lease or Ground Lease relating to such Financial Center and all
applicable zoning and
35
permitting laws and regulations, and (iv) such installed signage shall have, if
necessary, received the prior approval of the owner or landlord of the facility,
and such installed signage shall be covered in such a way as to make the Buyer
signage unreadable at all times prior to the Closing, but such cover shall
display the name and/or logo of the Seller in a manner reasonably acceptable to
the Seller. The Buyer agrees not to use any forms or other documents bearing the
Seller or any of its Affiliates' name or logo after the Closing without the
prior written consent of the Seller, and, if such consent is given, the Buyer
agrees that all such forms or other documents to which such consent relates will
be stamped or otherwise marked in such a way that identifies the Buyer as the
party using the form or other document. As soon as practicable and, in any
event, not more than five (5) nor less than two (2) calendar days prior to the
Closing Date, the Buyer will mail new checks reflecting its transit and routing
number to customers of the Financial Centers with check writing privileges. The
Buyer shall use its best efforts to encourage these customers to begin using
such checks and cease using checks bearing the Seller's name.
7.3 Owned Real Property and Leased Facilities.
(a) Except as expressly set forth herein, the Buyer hereby
acknowledges and agrees that: (i) the Buyer is expressly purchasing the
Owned Real Property and is taking assignments of and assuming the Leased
Facilities in its existing condition "AS IS, WHERE IS, AND WITH ALL
FAULTS" with respect to any facts, circumstances, conditions and defects;
(ii) the Seller has no obligation to repair or correct any such facts,
circumstances, conditions or defects or to compensate the Buyer for same;
(iii) the Seller has specifically bargained for the assumption by the
Buyer of all responsibility to inspect and investigate the Owned Real
Property and the Leased Facilities and of all risk of adverse conditions;
and (iv) the Buyer has or will have prior to the Closing undertaken all
such physical inspections and examinations of the Owned Real Property and
the Leased Facilities as the Buyer deems necessary or appropriate as to
the condition of the Owned Real Property and the Leased Facilities. Except
as expressly set forth herein, the Buyer acknowledges that the Seller has
made no representations or warranties and shall have no liability to the
Buyer (and the Buyer hereby waives any right to recourse against the
Seller) with respect to the conditions of the soil, the existence or
nonexistence of hazardous substances, any past use of the Owned Real
Property, the economic feasibility of the Owned Real Property and the
Leased Facilities, or the Owned Real Property's and Leased
36
Facilities' compliance or noncompliance with all laws, rules or
regulations affecting the Owned Real Property and the Leased Facilities.
(b) The Buyer may, at the Buyer's option, within forty-five (45)
days from the date of this Agreement, undertake such physical inspections
and examinations of the Owned Real Property and the Leased Facilities
(subject to any landlord's approval or consent as may be required and
prior notice to the Seller of the date and time of any such inspections
and examinations), and the legal title thereto, including such inspections
of the buildings thereon, as the Buyer deems necessary or appropriate. The
Seller shall cooperate reasonably with the Buyer and/or its authorized
agents or contractors in their evaluation and testing of the Owned Real
Property and Leased facilities, including by providing the Buyer and/or
its authorized agents or contractors reasonable access to pertinent
records and documents in the Seller's possession. The cost of any such
inspections and examinations shall be the responsibility of the Buyer.
Notwithstanding the foregoing, the Buyer shall not conduct any invasive or
phase II environmental testing on any Owned Real Property or Leased
Facilities without obtaining the Seller's written consent (which consent
will not unreasonably be withheld or delayed) and coordinating the scope
of such work with the Seller's consultants, as applicable.
(i) If the Buyer shall discover a Material Defect, as defined
herein, as a result of the Buyer's inspections and examinations, the
Buyer shall give the Seller written notice as soon as possible (but
in no event later than the expiration of the 45 day period)
describing the facts or conditions constituting such Material Defect
and the measures which the Buyer reasonably believes are necessary
to correct such Material Defect. "Material Defect" shall mean the
existence of (x) a lien or encumbrance on the legal title to the
Owned Real Property (other than Permitted Encumbrances), except as
previously disclosed in writing to the Buyer by the Seller, which
materially detracts from the value of the Owned Real Property and
does not include any defect in which the Seller can clear title by
providing an indemnification to the title insurance company or would
cost less than $25,000 with respect to one Owned Real Property to
remedy, (y) any discharge, disposal, release or emission of any
Hazardous Material in the ground or the structure of the Owned Real
Property or the existence of any underground storage tank for which
the Buyer has been
37
advised in writing by its environmental consultant/contractor that
the tank is not in compliance with Federal, state or local laws and
in which the Buyer reasonably believes, based on the advice of its
environmental consultant/contractor, that the amount of expense or
liability which the Buyer could reasonably incur or for which it
could reasonably become responsible or liable following consummation
of the transactions contemplated by this Agreement at any time or
over any period of time could equal or exceed $25,000 in the case of
each affected Owned Real Property or Leased Facility, or (z) with
respect to the buildings, material deficiencies in the plumbing,
electrical, HVAC, drive thru air transport system, roof, walls, or
foundations as to which the Buyer reasonably believes the cost of
repairs or corrections would equal or exceed $25,000 in the case of
each affected Owned Real Property or Leased Facility. It being
understood and agreed that the Buyer shall bear the risk and
responsibility (in each case with respect to clauses (y) and (z)
above) and the Seller shall bear the risk and responsibility (in
each case with respect to clause (x) above) of the first $25,000 in
expense relating to the remediation of a Material Defect at each of
the Owned Real Property and Leased Facilities, as applicable, and
that the provisions set forth in Section 7.3(b)(ii) and Section 2.10
shall govern the risk and responsibility of any such expense in
excess of such amounts with respect to each Owned Real Property and
Leased Facilities.
(ii) If the Seller does not elect to cure any such Material
Defect or is unable to cure such Material Defect to the Buyer's
reasonable satisfaction at least ten (10) days prior to the Closing,
and the Buyer does not elect to waive such Material Defect, the
parties shall negotiate in good faith with a view towards arriving
at a mutually acceptable resolution of the issue. The parties
further intend that the effort to identify a mutually acceptable
resolution shall be approached in the following order of priority:
(i) indemnification of the Buyer by the Seller; provided, however,
with regard to the Leased Facilities, the Seller shall only
indemnify and defend the Buyer from any expenses arising out of a
Material Defect set forth in Section 7.3(b)(i)(y) or (z), identified
by the Buyer during the review period set forth in Section 7.3(b)
and for which timely notice has been given to the Seller, existing
on the Leased Facilities on the date of assignment of the Real
38
Property Leases to the Buyer which is the responsibility of the
Seller as lessee under such Real Property Leases, it being
understood that this covenant shall be effective only during the
initial term of the Buyer's leasehold interest (excluding renewals,
extensions, and new leases) and shall not extend to liability
arising out of the Buyer's acts or omissions, and provided, further,
that such Seller's obligation to indemnify the Buyer for all
affected Owned Real Property and Leased Facilities under this
Section 7.3(b) shall not exceed $500,000 in the aggregate; (ii)
adjustment of the Purchase Price; provided, however, any such
Purchase Price adjustment for all affected Owned Real Property or
Leased Facilities shall not exceed $500,000 in the aggregate; or
(iii) subject to any required regulatory approval, including the
approval of the U.S. Department of Justice and the Board of
Governors of the Federal Reserve System, and the Seller's ability to
do so pursuant to the terms of the Lakeland City Financial Center
Lease, the Buyer shall purchase the assets related to the subject
Owned Real Property or Leased Facility other than the Owned Real
Property (in which case the Purchase Price shall be adjusted
accordingly) and assume the liabilities (other than the Real
Property Lease) associated with the Owned Real Property or Leased
Facility affected by the Material Defect, and lease (or sublet in
the case of any Leased Facilities) the real estate and improvements
associated therewith from the Seller for a period of 12 months
(renewable at the Buyer's option for an additional 12 month term) at
their fair market rental value (or, in the case of a sublease, the
Seller's then current rental payments) and on such other terms as
shall be mutually agreeable to the Seller and the Buyer and during
which time the Buyer may construct or arrange for another facility
in which to operate the business of the affected Owned Real Property
or Leased Facility. In no event shall the Buyer be entitled to
indemnification and/or a reduction in Purchase Price for any
Material Defects or other matters with respect to any Owned Real
Property that resulted in a reduction of the Fair Market Value in
any such Owned Real Property whether by appraisal or agreement by
the parties as set forth in Section 3.3.
(iii) With regard to the Leased Facilities, the Buyer and the
Seller understand that conducting the inspections and affecting the
cure of a Material Defect, if any, may require the action or the
consent of the lessor.
39
(c) No information or the contents of any environmental audits, nor
the results of any investigation of the Owned Real Property or the Leased
Facilities conducted pursuant to this section, including, but not limited
to, the contents of the report issued in connection therewith, shall be
disclosed by the Buyer or its agents, consultants or employees to any
third party without the Seller's prior written approval, unless and until
the Buyer is legally compelled to make such disclosure under applicable
laws or until the Buyer completes its purchase of the Owned Real Property
or assumes the Real Property Leases or Ground Lease pursuant to this
Agreement. Notwithstanding the foregoing, the Buyer may disclose such
matters to its directors, executive officers, legal counsel and such
employees who are reasonably required to receive such disclosure (such
parties being referred to as "Buyer" for purposes of this section), the
specific identities of whom shall be supplied to the Seller prior to any
permitted disclosure to such party by the Buyer. If this Agreement is
terminated for any reason, the Buyer shall immediately deliver and/or
return to the Seller any and all documents, plans and other items
furnished to the Buyer pursuant to this section.
7.4 Closing of Financial Centers.
Prior to the Closing Date, the Buyer shall not provide any notification to
customers, regulatory agencies or any other party as to its intention to close
any of the Financial Centers.
7.5 Delay in Closing.
If the Buyer is not able to effect the closing and conversion by the close
of business on March 3, 2005, as required by Section 9.1 of this Agreement,
caused solely by an action or failure to act of the Buyer or its agents, then
the Buyer hereby agrees to pay to the Seller, on the Closing Date, as an
additional payment (the "Contingent Purchase Price Consideration"), an aggregate
amount in cash equal to $4,500,000. For purposes of this Section 7.5, the Buyer
shall not be obligated to pay the Contingent Purchase Price Consideration if (i)
the Closing and conversion does not occur by the close of business on March 3,
2005 by reason of events beyond the control of the Buyer, including any acts of
God, or (ii) Seller is in material breach of this Agreement or the Working
Agreement.
7.6 Letters of Credit.
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The Seller and the Buyer shall cooperate and use all commercially
reasonable efforts to effect the termination of the Letters of Credit and the
substitution of the Buyer in the place of the Seller with respect to the Letters
of Credit. The Buyer's cooperation shall include the Buyer obtaining from a
financial institution reasonably acceptable to the Seller of a stand-by letter
of credit in the Seller's favor to support any outstanding Letters of Credit at
closing. Such stand-by letter of credit shall be in a form reasonably
satisfactory to the Seller and shall be delivered to the Seller at the Closing.
VIII. SELLER'S EMPLOYEES
8.1 Transferred Employees.
(a) The Buyer will offer to employ all of the Employees effective as
of the Closing Date. The Buyer will communicate offers of employment in
accordance with any applicable legal requirements and in a form mutually
acceptable to the Seller and the Buyer. All such Employees shall be
offered employment with the Buyer in all cases (i) in a position requiring
comparable skills and abilities as such Employee's position with the
Seller on the Closing Date, (ii) with annual base salary, or weekly or
hourly rate of pay which is equal to such Employee's pay with the Seller
on the Closing Date and with a total cash compensation opportunity
consisting of such annual base salary plus variable compensation, at
target performance, that is at least 90% of total cash compensation
opportunity at target performance, of the Employee's position with the
Seller on the Closing Date, (iii) at a work location not more than 30
miles from such Employee's work location with the Seller on the Closing
Date, and (iv) with a work schedule that is no more than a two-hour
adjustment to the starting or ending time, and with the same regular
scheduled work days, of the Employee's position with the Seller on the
Closing Date (a "Comparable Job Offer"). In the event the Buyer breaches
its obligations under this Section 8.1(a) to offer each Employee a
Comparable Job Offer, the Buyer shall be obligated to pay any severance
benefits to any such Employee (unless such Employee otherwise accepts
employment with the Buyer) in accordance with the payment terms set forth
in the severance plan of Wachovia Corporation. Each Employee who accepts
the Buyer's offer of employment and commences employment with the Buyer
hereunder shall become a "Transferred Employee" on the Closing Date. The
Buyer hereby agrees to reasonably cooperate with the Seller in obtaining,
in connection with any acceptance of an offer of employment with the
Buyer,
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or any termination of a Transferred Employee by the Buyer, an executed
release from such Transferred Employee providing that the Seller and its
Affiliates shall not be responsible for any severance claims or
obligations for such Transferred Employee with respect to any severance
plan, policy or practices of the Seller or any of its Affiliates or
predecessors. Seller acknowledges and agrees that Buyer shall not be
liable or bear any responsibility as a result of any Transferred Employee
refusing or failing to execute and deliver a release to Seller. With
respect to any Employee who accepts an offer of employment from the Buyer
who on the Closing Date is on military leave, medical leave, short-term
disability or other leave of absence approved by the Seller (but excluding
any Employee absent by reason of long-term disability, for whom the Seller
will retain all liability), except as required by applicable law, the
Buyer need only employ such Employee for the period beginning after such
absence if such Employee returns to employment in accordance with the
terms of such Employee's leave. Any such Employee will cease employment
with the Seller at the end of such leave of absence. Nothing in this
Agreement shall be construed as an employment contract between the Buyer
and any Transferred Employee. The Buyer shall not have any
responsibilities or rights regarding any Employee terminated prior to the
Closing Date or any Employee who has received a Comparable Job Offer from
the Buyer but who chooses not to become an employee of the Buyer.
(b) Unless otherwise agreed by the Buyer and the Seller in writing,
the Seller is responsible for the filing of Forms W-2 with the Internal
Revenue Service and any required filing with state tax authorities, with
respect to wages and benefits paid to each Transferred Employee for
periods ending on or prior to the Closing Date (or the date that an
Employee becomes a Transferred Employee).
(C) The Seller shall use its commercially reasonable efforts to
maintain the Employees as Employees of the Seller from the date hereof
through the Closing Date. To the Seller's Knowledge there are no pending
or threatened claims regarding the Employees for breach of any applicable
employment laws.
8.2 Certain Other Obligations of Buyer.
(a) (i) Following the Closing, the Buyer shall not have any
liability or obligation under any Benefit Plans or any other program or
arrangement of the Seller or an ERISA Affiliate
42
thereof under which any current or former employee of the Seller or any of
its Affiliates has any right to any benefits;
(ii) Upon the Closing, the participation of Transferred Employees in
the Benefit Plans shall cease in accordance with the terms of such plans;
and
(iii) With respect to Transferred Employees, the Buyer shall be
responsible for any welfare benefits or claims incurred after the date
that an Employee becomes a Transferred Employee. For purposes of this
paragraph, a claim shall be deemed to have been incurred when the medical
or other service giving rise to the claim is performed, except that
disability claims under the Seller's long-term disability plan shall be
deemed to have been incurred on the date the Employee becomes disabled.
(b) (i) From and after the Closing Date (or the date that an
Employee becomes a Transferred Employee), the Buyer shall provide the
Transferred Employees with employee benefit plans, programs, and
arrangements (including a "group health plan" within the meaning of
Section 5000(b)(1) of the Code) that are no less favorable in the
aggregate than the employee benefit plans, programs, and arrangements
generally provided on the Closing Date to other similarly situated
employees of the Buyer. Subject to the terms and conditions of such
arrangements, such Transferred Employees will be fully eligible to
participate in the Buyer's bonus and other incentive arrangements from the
commencement of such Transferred Employees employment with the Buyer to
the same extent as the Buyer's similarly situated employees;
(ii) The Buyer will grant for purposes of vacation benefits,
severance pay and all welfare benefit plans (as defined in ERISA) past
service credit to all Transferred Employees for periods of time credited
to such Transferred Employees under the Welfare Benefit Plans. Subject to
the acceptance of the following provisions by the applicable insurers for
the following benefits under the Buyer's plans and programs, to the extent
that any Transferred Employee has satisfied in whole or in part any annual
deductible under a Welfare Benefit Plan, or has paid any out-of-pocket
expenses pursuant to any Welfare Benefit Plan co-insurance provision, such
amount shall be counted toward the satisfaction of any applicable
deductible or out-of-pocket expense maximum, respectively, under the
benefit plans and programs provided to Transferred Employees by the Buyer,
and such plans and programs
43
shall be applied without regard to any limitations relating to preexisting
conditions or required physical examinations that would not otherwise
apply under the respective Welfare Benefit Plans to the extent that such
Transferred Employees are covered by the Welfare Benefit Plans on the
Closing Date;
(iii) The Buyer shall take whatever action is necessary, including
amendment of its defined contribution pension plan, to grant to each
Transferred Employee past service credit for all purposes, including for
any waiting period and for vesting purposes, under the Buyer's defined
contribution pension plan for all periods of service credited to each such
Transferred Employee under the Seller's defined contribution pension
plans. In addition to the foregoing, the Buyer shall take whatever action
is necessary to amend its defined contribution pension plan to incorporate
the items described in Schedule 8.2(b)(iii), such that such amendments are
effected as of the Closing Date and applicable to all Transferred
Employees as of the Closing Date. As soon as reasonably practicable after
the Closing Date, the Seller shall provide to the Buyer such information
as the Buyer reasonably requires to establish the service for the
Transferred Employees credited under the Seller's defined contribution
pension plans;
(iv) As of the Closing Date, the Buyer shall permit each Transferred
Employee who becomes a participant in the Buyer's defined contribution
pension plan to elect to have his or her account balance under the
Seller's defined contribution pension plans transferred from the Seller's
defined contribution pension plans to the Buyer's defined contribution
pension plan by direct rollover as described in Section 401(a)(31)(A) of
the Code;and
(v) The Buyer shall provide coverage under the Buyer's severance
plan, policies and practices (if any) for the Buyer's similarly situated
employees for each Transferred Employee as of the Closing Date, and for a
period of 12 months following the Closing Date (or the date that an
Employee becomes a Transferred Employee), any Transferred Employee who is
terminated by the Buyer without cause or is otherwise entitled to any such
severance under the Buyer's severance plan, policies and practices (if
any) shall receive from the Buyer the greater of the severance pay
benefits (exclusive of welfare, pension or other benefits under the
Seller's plans, policies and practices) under either the Buyer's severance
plan, policies and practices (if any) or as provided for in the severance
plan of Wachovia
44
Corporation, which benefits shall be paid in a lump sum or by salary
continuation as determined by the Buyer on a case-by case basis.
8.3 Training.
The Seller shall permit the Buyer to train the Transferred Employees
before Closing with regard to the Buyer's operations, policies and procedures at
the Buyer's sole cost and expense, including reimbursement to the Seller of any
additional overtime expenses incurred as a result of such training. This
training shall take place outside of business hours and may, at the Seller's
option, take place at the Financial Centers; provided, however, that the Buyer
does not unreasonably interfere with the business operations of the Financial
Centers and the Buyer coordinates and schedules any such training in advance
with the Seller.
8.4 No Solicitation of Employees.
(a) The Seller agrees that, for a period of two (2) years following
the Closing Date, neither the Seller nor its Affiliates will directly or
indirectly solicit for employment, attempt to employ or otherwise
encourage to terminate his or her employment with the Buyer any
Transferred Employee; provided, that the Seller and its Affiliates shall
not be prohibited from hiring any Person (i) who responds to an
advertisement in a periodical of general circulation or through means that
is not targeted towards Transferred Employees, (ii) who contacts the
Seller or its Affiliates regarding employment without having first been
solicited by the Seller or its Affiliates directly or indirectly, or (iii)
who has been terminated by the Buyer or its Affiliates.
(b) The Buyer agrees that, for a period of two (2) years following
the Closing Date, neither the Buyer nor its Affiliates will directly or
indirectly solicit for employment, attempt to employ or otherwise
encourage to terminate his or her employment any employees of the Seller
employed in any of the Seller's or its Affiliates Financial Centers
located within 30 miles of any of the Financial Centers; provided, that
the Buyer and its Affiliates shall not be prohibited from hiring any
Person (i) who responds to an advertisement in a periodical of general
circulation or through means that is not targeted towards employees of
Seller or its Affiliates, (ii) who contacts the Buyer or its Affiliates
regarding employment without having
45
first been solicited by the Buyer or its Affiliates directly or
indirectly, or (iii) who has been terminated by the Seller or its
Affiliates.
IX. CLOSING AND CONDITIONS TO CLOSING
9.1 Time and Place of Closing.
The date of the Closing (the "Closing Date"), which shall be after
satisfaction or waiver of the conditions set forth in Article IX (other than
those conditions that by their nature are to be satisfied at the Closing), shall
be on a Friday and, unless otherwise mutually agreed upon by the parties, shall
be on February 18, 2005, but in no event later than March 3, 2005. The Closing
shall take place at the Buyer's offices located at 000 Xxxx Xxxx Xxxxxxx,
Xxxxxxxxxxx, Xxxxxxx, at 10:00 a.m. on the Closing Date, or at a time and place
otherwise determined by mutual agreement of the parties.
9.2 Exchange of Closing Documents.
(a) The parties shall exchange drafts of all documents to be
delivered at the Closing (other than the Closing Statement) at least ten
days prior to the Closing Date.
(b) Subject to Section 2.10 and Section 7.3, at the Closing, the
Seller shall deliver to the Buyer the following (with such documents set
forth below in form and substance reasonably satisfactory to the Buyer):
(i) special or limited warranty deeds conveying the Owned Real
Property;
(ii) bills of sale, assignments and other instruments of
transfer sufficient to convey to the Buyer all of the Seller's
right, title, and interest in and to the remaining Assets;
(iii) a certificate executed by an appropriate officer of the
Seller attesting, to the officer's best Knowledge, to the Seller's
compliance with the conditions set forth in Section 9.3(b);
(iv) estoppel certificates executed by the lessors of the
Leased Facilities, to the extent the Seller can obtain such
certificate using reasonable efforts and without the payment of any
fees to such lessor;
46
(v) a limited power of attorney, to be mutually agreed upon by
the Seller and the Buyer, to execute assignment of collateral in the
name of the Seller; and
(vi) the Closing Statement;
(vii) the Seller's keys to the safe deposit boxes and all
other records as exist and are in the Seller's possession or control
related to the safe deposit box business at the Financial Centers;
(viii)the Seller's files and records related to the Loans, the
Loan Instruments and the collateral for the Loans as exist and are
in the possession or control of the Seller;
(ix) the Seller's records related to the Deposits (other than
Deposit history information) assumed by the Buyer as exist and are
in the possession or control of the Seller;
(x) the cash on hand at the Financial Centers, including ATM
Service Facilities' cash, vault cash and tellers' cash;
(xi) such other Assets to be purchased as shall be capable of
physical delivery; and
(xii) a certified copy of a resolution of the Board of
Directors of the Seller approving the transactions contemplated by
this Agreement.
(c) Subject to Section 2.10 and Section 6.5, at the Closing, the
Buyer shall deliver to the Seller the following documents in form and substance
reasonably satisfactory to the Seller:
(i) one or more executed assignment and assumption documents
and/or subleases of the Real Property Leases and Ground Lease;
(ii) one or more executed instruments assuming the remaining
Liabilities;
(iii) a certificate executed by an appropriate officer of the
Buyer attesting, to the officer's best
47
Knowledge, to the Buyer's compliance with the conditions set forth
in Section 9.4(b); and
(iv) a certified copy of a resolution of the Board of
Directors of the Buyer approving the transactions contemplated by
this Agreement.
9.3 Buyer's Conditions to Closing.
Subject to Section 2.10 of this Agreement, the Buyer's obligation to
purchase the Assets and assume the Liabilities is contingent upon and subject to
the fulfillment or written waiver of the following conditions:
(a) the parties obtaining all regulatory approvals which are
required in order for them to proceed with the transactions contemplated
by this Agreement and the expiration or termination of any required
waiting period; and
(b) the representations and warranties of the Seller in this
Agreement being true and correct as of the Closing Date (except that
representations and warranties that speak as of a specified date need be
true and correct only as of such date); (provided, however, that for
purposes of determining the satisfaction of the condition contained in
this Section 9.3(b), such representations and warranties shall be deemed
to be true and correct if the failure or failures of such representations
and warranties to be so true and correct do not constitute or give rise
to, individually or in the aggregate, a Seller Material Adverse Effect),
and all covenants of the Seller to be performed or met by the Seller on or
before the Closing Date having been performed or met in all material
respects.
9.4 Seller's Conditions to Closing.
Subject to Section 2.10 of this Agreement, the Seller's obligation
to sell the Assets and transfer the Liabilities to the Buyer is contingent upon
and subject to the fulfillment or written waiver of the following conditions:
(a) the parties obtaining all regulatory approvals which are
required in order for them to proceed with the transactions contemplated
by this Agreement and the expiration or termination of any required
waiting period;
48
(b) the representations and warranties of the Buyer in this
Agreement being true and correct as of the Closing Date (except that
representations and warranties that speak as of a specified date need be
true and correct only as of such date); (provided, however, that for
purposes of determining the satisfaction of the condition contained in
this Section 9.4(b), such representations and warranties shall be deemed
to be true and correct if the failure or failures of such representations
and warranties to be so true and correct do not constitute or give rise
to, individually or in the aggregate, a Buyer Material Adverse Effect),
and all covenants of Buyer to be performed or met by Buyer on or before
the Closing Date having been performed or met in all material respects;
and
(c) The consummation of the Merger.
9.5 Survival of Representations, Warranties and Covenants.
Unless provided otherwise in this Agreement, the Buyer's and the
Seller's representations and warranties under this Agreement or contained in any
certificate or instrument delivered by either party at the Closing shall survive
for a period of one year following the Closing Date. The agreements and
covenants contained in this Agreement shall not survive the Closing except to
the extent expressly set forth herein; provided that the agreements and
covenants set forth in Section 11.12 shall survive the Closing or any
termination of this Agreement.
X. TERMINATION
10.1 Termination.
This Agreement may be terminated at any time prior to the Closing
Date:
(a) by either the Buyer or the Seller (with the written consent of
Wachovia), if as a result of any material breach of any representation,
warranty or covenant of the Seller (in the case of a termination by the
Buyer) or of the Buyer (in the case of termination by the Seller), the
party terminating this Agreement has given the other party written notice
of such breach and such breach is not cured within 30 days thereafter;
(b) by mutual written agreement of the Buyer and the Seller (with
the written consent of Wachovia);
49
(c) by the Buyer if the Closing has not occurred within two hundred
seventy (270) days after the consummation of the Merger; unless the
failure so to consummate the transactions contemplated by this Agreement
arises out of or results from the actions or omissions of the Buyer;
(d) by the Seller or the Buyer if the Merger Agreement is terminated
in accordance with its terms and the business combination transaction with
Wachovia is otherwise permanently abandoned;
(e) by the Seller if the Closing has not occurred within one hundred
eighty (180) days after the consummation of the Merger; or
(f) by the Seller (with the written consent of Wachovia) or the
Buyer, if (i) the condition in Section 9.3(a) or in Section 9.4(a) of this
Agreement has not been and cannot be fulfilled because of the denial or
revocation of any required regulatory or governmental approval with final
nonappealable action by the appropriate regulator or governmental body, or
(ii) a court or governmental authority of competent jurisdiction shall
have enacted, issued, promulgated, enforced or entered any statute, rule,
regulation, judgment, decree, injunction or other order that prohibits or
makes illegal the consummation of the transactions contemplated by this
Agreement and that is permanent, final and nonappealable.
The termination of this Agreement under subsection (a) shall not
absolve the breaching party from any liability to the other party arising out of
its breach of this Agreement.
XI. MISCELLANEOUS
11.1 Continuing Cooperation.
(a) On and after the Closing Date, the Seller agrees to execute,
acknowledge and deliver such documents and instruments as the Buyer may
reasonably request to vest in the Buyer the full legal and equitable title
to the Assets and Liabilities. In addition, the Seller shall use
commercially reasonable efforts to assist the Buyer in establishing a
credit file, to the extent not otherwise provided, for each Loan
sufficient to meet the requirements imposed on the Buyer by federal
banking authorities.
50
(b) On and after the Closing Date, the Buyer shall execute,
acknowledge and deliver such documents and instruments as the Seller may
reasonably request to relieve and discharge the Seller from its
obligations with respect to the Liabilities.
(c) The Seller and the Buyer shall cooperate with each other in
connection with any examination conducted by any tax authority subsequent
to the Closing Date by promptly providing upon request information
relating to the tax liability of any business operated by the Seller or
the Buyer with respect to the Financial Centers and promptly informing the
other of the institution of, any material developments concerning, and the
outcome of, the same.
(d) Except as provided in Section 7.2, no interest in or right to
use the SouthTrust Bank or Wachovia Bank, National Association logo or the
name "SouthTrust", "Wachovia" or any other similar word, name, symbol or
device in which the Seller has any interest by itself or in combination
with any other word, name, symbol or device, or any similar variation of
any of the foregoing (collectively, the "Retained Names and Marks") is
being transferred to the Buyer pursuant to the transactions contemplated
hereby. Unless permitted pursuant to Section 7.2, the Buyer shall not
after the Closing Date in any way knowingly use any materials or property,
whether or not in existence on the Closing Date, that bear any Retained
Name or Xxxx. The Buyer agrees that the Seller shall have no
responsibility for claims by third parties arising out of, or relating to,
the use by the Buyer of any Retained Name or Xxxx after the Closing Date,
and the Buyer agrees to indemnify and hold harmless the Seller from any
and all claims (and all expenses, including reasonable attorneys' fees and
disbursements incurred in connection with any such claim) that may arise
out of the use thereof by the Buyer.
(e) The Buyer agrees to provide reasonable assistance and
cooperation to the Seller and its Affiliates in activities related to the
prosecution or defense of any pending or future lawsuits, arbitrations,
other proceedings or claims involving the Seller or its Affiliates and the
Financial Centers ("Seller Litigation"). In addition, Buyer shall
facilitate, without expense to the Seller, the reasonable availability to
the Seller of the Transferred Employees, without the need for issuance of
any subpoena or similar process, to testify or assist the Seller in the
Seller Litigation.
51
(f) The Buyer agrees that it will hold any information which is
nonpublic and confidential to the extent required by, and in accordance
with, the Confidentiality Agreement dated August 25, 2004 between the
Buyer and the Seller (the "Confidentiality Agreement").
11.2 Merger and Amendment.
This Agreement sets out the complete agreement of the parties with
respect to the matters discussed in this Agreement, and it supersedes all prior
agreements between the parties, whether written or oral, which apply to these
matters, other than the Confidentiality Agreement (other than with respect to
the hiring or solicitation of the Employees). No provision of this Agreement may
be changed or waived except as expressly stated in a document executed by the
parties.
11.3 Dispute Resolution.
(a) Neither the Seller nor the Buyer shall assert any claim arising
out of or relating to this Agreement (except with respect to claims to be
handled under the Working Agreement or submitted to the Mediator under
Section 3.2(c)), unless:
(i) (except for claims arising under or in respect of Sections
2.4, 2.5, or 11.1(d)), the amount in dispute with respect to any
claim exceeds $5,000;
(ii) (except for claims arising in respect of Sections 2.4,
2.5 or 11.1(d)), the aggregate amount of all claims by the Buyer or
the Seller, which in either case satisfy the preceding clause,
exceeds $375,000, in which case a claim may be asserted only to the
extent that such threshold has been exceeded;
(iii) (except for claims arising under Sections 2.4, 2.5, or
11.1(d)), the aggregate amount of all claims by the Buyer or the
Seller in each case shall not exceed $5,000,000; and
(iv) (except for claims arising under Sections 2.4, 2.5 or
11.1(d)), the notification required by Section 11.3(b) (if any) is
given on or before the first anniversary of the Closing Date.
52
(b) The parties shall attempt in good faith to resolve any dispute
arising out of or relating to this Agreement promptly by negotiations, as
provided in this subsection (b). A party shall give the other party
written notice of any dispute not resolved in the normal course of
business. Executives of such relevant parties at comparable levels at
least one step above the personnel who have previously been involved in
the dispute shall meet at a mutually acceptable time and place within ten
days after delivery of such notice, and thereafter as often as they
reasonably deem necessary, to exchange relevant information and to attempt
to resolve the dispute. If the matter has not been resolved by these
persons within 30 days of the disputing party's notice, or if the parties
fail to meet within ten days, the dispute shall be referred to more senior
executives of the relevant parties who have authority to settle the
dispute and who shall likewise meet to attempt to resolve the dispute. All
negotiations under this subsection (b) are confidential and shall be
treated as compromise and settlement negotiations for purposes of the
Federal Rules of Evidence, applicable state rules of evidence, and common
law. The procedures set forth above will be followed in advance of
litigation of any dispute between the parties; nevertheless, a party may
seek a preliminary injunction or other provisional judicial relief if in
its judgment such an action is necessary to avoid irreparable damage or to
preserve the status quo. Despite any such action, the parties will
continue to participate in good faith in the procedures set forth in this
subsection (b).
(c) No party shall have any liability for lost profits or punitive
damages with respect to any claim arising out of or relating to this
Agreement. The sole recourse and remedy of a party hereto for breach of
this Agreement by any other party hereto shall be against such other party
and its assets, and no officer, director, employee, stockholder or
affiliate of any party shall be liable at law or in equity for the breach
by such party of any of its obligations under this Agreement.
11.4 Indemnification.
After the Closing Date, and unless otherwise provided in the
Agreement:
(a) The Buyer shall indemnify and hold the Seller harmless from and
against all claims, lawsuits, costs (including reasonable counsel fees)
and liabilities which arise out of or relate to its ownership of the
Assets or transactions or
53
operations at the Financial Centers after the Closing Date, and from any
loss or damage resulting from any breach by the Buyer of any
representation, warranty or covenant of the Buyer contained in this
Agreement. If any claim or lawsuit is made or commenced as to which the
Seller proposes to demand such indemnification, it shall notify the Buyer
with reasonable promptness; provided, however, that any failure by the
Seller to notify the Buyer shall not relieve the Buyer from its
obligations hereunder, except to the extent that the Buyer is actually
prejudiced by such failure to give notice. The Buyer shall have the option
of defending such claim or lawsuit with counsel of its own choosing at its
own cost and expense and such counsel shall, to the extent consistent with
its professional responsibilities, cooperate with the Seller and any
counsel designated by the Seller. The Buyer shall pay any settlement of a
claim or lawsuit that falls within this indemnification provision and is
made with the Buyer's consent, which consent shall not be unreasonably
withheld.
(b) The Seller shall indemnify and hold the Buyer harmless from and
against all claims, lawsuits, costs (including reasonable counsel fees)
and liabilities which arise out of or relate to transactions or operations
at the Financial Centers on or before the Closing Date, and from any loss
or damage resulting from any breach by the Seller of any of its
representations, warranties or covenants contained in this Agreement. If
any claim or lawsuit is made or commenced as to which the Buyer proposes
to demand such indemnification, it shall notify the Seller with reasonable
promptness; provided, however, that any failure by the Buyer to notify the
Seller shall not relieve the Seller from its obligations hereunder, except
to the extent the Seller is actually prejudiced by such failure to give
notice. The Seller shall have the option of defending such claim or
lawsuit with counsel of its own choosing at its own cost and expense and
such counsel shall, to the extent consistent with its professional
responsibilities, cooperate with the Buyer and any counsel designated by
the Buyer. The Seller shall pay any settlement of a claim or lawsuit that
falls within this indemnification provision and is made with the Seller's
consent, which consent shall not be unreasonably withheld.
(c) Any claims for indemnification brought under this Section shall
be subject to the provisions of Section 11.3 to the extent such claims
involve a claim of one party against the other.
54
11.5 Counterparts.
This Agreement may be executed in any number of counterparts, each
of which will constitute an original, but all of which taken together shall
constitute one and the same instrument.
11.6 Exhibits and Schedules.
All exhibits and schedules referred to in this Agreement shall
constitute a part of this Agreement.
11.7 Assignment.
Neither this Agreement nor any of the rights, interests or
obligations hereunder may be assigned by the Buyer or the Seller (whether by
operation of law or otherwise) without the prior written consent of the Buyer
(in the case of an assignment by the Seller) or the Seller (in the case of an
assignment by the Buyer), and any purported assignment in violation of this
Section 11.7 will be void; provided, however, that this Agreement (including the
rights, interests and obligations hereunder) may be assigned by the Buyer to any
of its Affiliates or by the Seller to any of its Affiliates (although such an
assignment will not relieve the assigning party of its obligations under this
Agreement). Subject to the preceding sentence, this Agreement shall be binding
upon, inure to the benefit of and be enforceable by the parties hereto and their
respective heirs, personal representatives, successors and permitted assigns.
11.8 Headings.
The headings contained in this Agreement are inserted for
convenience only and shall not affect the meaning of this Agreement or any of
its provisions.
11.9 Notices.
Any notice under this Agreement shall be made in writing and shall
be deemed given when delivered in person, when delivered by first class mail
postage prepaid (in which case the notice shall be deemed given on the third
Business Day following the date on which the notice is postmarked), when
delivered by overnight carrier such as Federal Express or UPS (in which case the
notice shall be deemed given on the next Business Day when received) or when
delivered by facsimile transmission, which transmission also shall be sent by
first class mail, postage prepaid before the second Business Day following the
transmission (in which case the notice shall be deemed
55
given on the day transmitted if transmitted before or during normal business
hours or, otherwise, on the next succeeding Business Day) to the parties at the
respective addresses set forth below or at such other addresses as each party
shall inform the other in writing.
If to Seller:
SouthTrust Bank
3400 SouthTrust Tower
000 Xxxxx 00xx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: R. Xxxxx Xxxxxxx
Facsimile: 000-000-0000
With copies to: Wachovia Corporation
000 Xxxxx Xxxxxxx Xxxxxx, XX0000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Facsimile: 000-000-0000
Wachovia Corporation
000 Xxxxx Xxxxxxx Xxxxxx, XX0000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Facsimile: 000-000-0000
And
Xxxxxxx Xxxxx Rose & White LLP
One Federal Place
0000 0xx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxx, Esq.
Facsimile: 000-000-0000
56
If to Buyer to: R-G Crown Bank
000 Xxxx Xxxx Xxxxxxx
Xxxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx Xxxxx,
Chairman and Chief Executive Officer
Facsimile: 000-000-0000 and
000-000-0000
with a copy to: Xxxxxx Xxxxx LLP
0000 X. Xxxxxx, XX
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Xxxxxxx X. Xxxx, Esq.
Facsimile: 000-000-0000
11.10 Expenses.
Unless specifically stated to the contrary in this Agreement, each
party will assume and pay for the expenses it incurs with respect to the
purchase and sale of the Assets and assumption of the Liabilities under this
Agreement. Each party shall be responsible for any fee payable to any agent,
broker or finder acting on its behalf in this transaction. In addition to the
foregoing, the Buyer hereby agrees to pay all fees and expenses relating to the
assignment of the Loans and Cash Reserve Loans from the Seller to the Buyer.
11.11 Communications.
During the period from the date of this Agreement to the Closing
Date, the Buyer and the Seller shall not communicate with the Employees,
depositors, or customers of the Financial Centers, except as specifically
required by the relevant regulatory agencies as part of the approval process, or
as specifically provided for herein:
(a) As soon as practicable following the date of this Agreement, the
Seller and the Buyer shall jointly communicate, at Buyer's and the Seller's
equal expense, with the Employees, depositors and customers of the Financial
Centers advising them of the transactions contemplated by this Agreement. Such
communication shall be in form and substance mutually satisfactory to the
parties hereto and to any regulatory authorities as may be required by
57
applicable law or regulation. Any and all public announcements or press releases
by either party must comply with Section 11.12 of this Agreement.
(b) With the exception of the communications provided for in
paragraph (a) above, and in Section 8.1 (to the extent necessary to convey an
offer of employment), the Buyer may not communicate with the Employees,
depositors and other customers of the Financial Centers without the prior
written consent of the Seller, and any such communications shall be in form and
substance mutually satisfactory to the parties hereto and to any regulatory
authorities as may be required by applicable law or regulation. Any such
permitted communications may not interrupt or interfere with the normal
operations of the Financial Centers, and shall be at the Buyer's sole cost and
expense.
(c) In addition to the communications provided for in paragraph (a)
above, the Seller at its own cost and expense may communicate with the
Employees, depositors and other customers of the Financial Centers at such times
and in such form and substance mutually satisfactory to the parties hereto and
to any regulatory authorities as may be required by applicable law or
regulation.
11.12 Public Announcements.
Each party shall consult with the other before making any
announcement or other public communication with respect to the transactions
contemplated by this Agreement and, prior to such announcement or other public
communication, shall mutually agree upon the substance and timing thereof.
11.13 Governing Law; Jurisdiction.
This Agreement and the legal relations between the parties shall be
governed by and construed in accordance with the laws of the State of Delaware
applicable to contracts made and to be performed entirely within the State of
Delaware.
11.14 No Third Party Beneficiaries.
The parties intend that this Agreement shall not benefit or create
any right or cause of action in or on behalf of any Person other than the Seller
and the Buyer, and other than Wachovia as an intended third-party beneficiary.
58
11.15 Severability.
If any provision of this Agreement or the application of any such
provision to any person or circumstance shall be held invalid, illegal or
unenforceable in any respect by a court of competent jurisdiction, such
invalidity, illegality or unenforceability shall not affect any other provision
hereof; provided, however, that no such severance shall be effective if it would
materially change the economic benefits of this Agreement to any party.
11.16 R-G Financial Corporation Obligation.
R-G, as the ultimate parent of the Buyer, by its signature hereto
irrevocably, absolutely and unconditionally guarantees the performance of the
Buyer of its obligations pursuant to Sections 3.1, 3.2, 7.5, 8.1, 8.2, 8.4(b),
11.1(d), 11.3 and 11.4(a) of this Agreement. R-G waives presentment, demand,
protest, notice of acceptance, notice of obligations incurred and all other
notices of any kind, all legal or equitable defenses which may be available by
virtue of any change in the time, manner or place of the Buyer's performance,
any right to require the marshalling of assets, and all suretyship defenses
generally. R-G represents that it has the corporate authority to undertake its
obligations hereunder, and the execution and delivery of this Agreement has been
duly authorized by all necessary corporate action by R-G. Upon execution and
delivery by the Seller, R-G's obligations hereunder will constitute valid and
binding obligations of R-G, enforceable in accordance with its terms subject to
subject to bankruptcy, insolvency and other similar laws of general
applicability relating to or affecting creditors' rights and to general equity
principles. This Section 11.16 shall be binding upon R-G's successors and
permitted assigns.
59
IN WITNESS WHEREOF, each of the parties to this Agreement has caused this
Agreement to be executed by a duly authorized officer as of the date written on
page one of this Agreement.
BUYER
By: /s/ Xxxxxx Xxxxx
-----------------------------------------
Title: Chief Executive Officer
--------------------------------------
SOUTHTRUST BANK
By: /s/ R. Xxxxx Xxxxxxx
-----------------------------------------
Title:
--------------------------------------
R-G FINANCIAL CORPORATION (for the purposes
of Section 11.16 of this Agreement)
By: /s/ Xxxxxx Xxxxx
-----------------------------------------
Title: Chief Executive Officer
--------------------------------------
ACKNOWLEDGMENT
Wachovia Corporation hereby consents to
the Seller entering into this Agreement
WACHOVIA CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------
Title: Senior Executive Vice President
-------------------------------
