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EXHIBIT 10.10
(SUMMIT)
BRANCH OFFICE
PURCHASE AGREEMENT
THIS BRANCH OFFICE PURCHASE AGREEMENT (Agreement) is made and entered
into this 18th day of August, 2000, by and between XXXXXX BANK, an Illinois
banking corporation ("Purchaser"), an Illinois savings bank, and ARGO FEDERAL
SAVINGS BANK, FSB ("Seller"), a federally chartered savings bank.
RECITALS:
WHEREAS, Seller shall transfer to Purchaser, subject to the terms and
conditions of this Agreement, certain deposit accounts, including demand deposit
accounts, regular savings accounts, money market accounts, certificates of
deposit and negotiable order of withdrawal accounts attributable to its branch
office located at 0000 Xxxx 00xx Xxxxxx, Xxxxxx, Xxxxxxxx, 00000 (the "Branch
Office") as more fully described herein;
WHEREAS, Purchaser shall acquire from Seller, subject to the terms and
conditions of this Agreement, certain deposit accounts, including demand deposit
accounts, regular savings accounts, money market accounts, certificates of
deposit and negotiable order of withdrawal accounts attributable to the Branch
Office, as more fully described herein;
WHEREAS, Purchaser has agreed to acquire and Seller has agreed to sell
certain of the furniture, fixtures and equipment at the Branch Office (the
"Assets"), as more fully described herein;
WHEREAS, Purchaser has agreed to assume the liabilities of Seller with
respect to the lease pertaining to the Branch Office premises, as more fully
described herein;
WHEREAS, Purchaser and Seller have determined that the transactions
contemplated by this Agreement are in the best interests of their respective
shareholders or members; and
WHEREAS, the transactions contemplated by this Agreement have been
approved by at least a two-thirds vote of the respective entire Boards of
Directors of Purchaser and Seller and each has authorized their appropriate
officers to execute and attest to this Agreement and to make application for and
to receive the necessary supervisory approvals of the subject transactions from
the Federal Deposit Insurance Corporation (the "FDIC"), the Office of Banks and
Real Estate of the State of Illinois (the "OBRE"), the Federal Reserve Bank of
Chicago (the "FRB") and the Office of Thrift Supervision (the "OTS"), to the
extent necessary.
NOW THEREFORE, in consideration of the premises and the mutual promises
herein
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made, and in consideration of the representations, warranties, covenants, terms
and conditions set forth herein, Purchaser and Seller hereby covenant and agree
as follows:
ARTICLE I
TRANSFER/ASSUMPTION OF ACCOUNTS, ASSETS AND LEASES
1.1 IDENTIFICATION OF ACCOUNTS BY OFFICE LOCATION. Seller shall
transfer to Purchaser certain of its deposit accounts, including demand deposit
accounts, regular savings accounts, money market accounts, certificates of
deposit, all public funds accounts and negotiable order of withdrawal accounts,
as more fully set forth and described in Paragraph 2 hereof (hereinafter
sometimes for convenience collectively referred to as the "Accounts" or the
"Transferred Accounts"); with the said Accounts generally originating at and
attributable to the Branch Office except that Seller shall not transfer to and
Purchaser shall not assume liability for any brokered accounts (deposits
originated by a third party other than the deposit-holder), Accounts owned by
affiliates, directors, officers and/or employees of Seller who do not work at
the Branch Office.
1.2 IDENTIFICATION OF TRANSFERRED ACCOUNTS BY EXHIBIT. Marked Schedule
1.2, attached hereto and specifically incorporated herein by this reference, is
a verified statement prepared and submitted in a form substantially similar in
format to previous reports tendered by Seller setting forth the identity of
holder, the type of account, account opening date, account maturity date,
principal balance (including accrued and credited interest of such account), and
interest rate payable on each of the Transferred Accounts as of July 31, 2000.
Seller shall also provide, or make available, to Purchaser such other account
information as may be required for legitimate business purposes. After the close
of business on the day preceding the Closing Date (as defined in Article VI
hereof), Seller hereby agrees to deliver to Purchaser a supplemental statement
verifying the information set forth in the preceding sentence together with such
information with respect to any new or additional accounts opened after August
1, 2000 on each of the Accounts to be transferred to Purchaser as of the date
three (3) days prior to the Closing Date (such 3-day period the "Gap Period") as
well as an identification of any accounts which were closed between the date of
the original Schedule 1.2 and Supplemental Schedule 1.2. A Post-closing Schedule
1.2 covering the Gap Period shall be delivered by Seller to Purchaser within ten
(10) days of the Closing Date. Any adjustment to the Purchase Price (as defined
in Paragraph 1.6) based upon a difference between the Supplemental Schedule 1.2
and the Post-Closing Schedule 1.2 shall be paid by a party to the other party
within five (5) business days following delivery of the Post-Closing Schedule
1.2 to Purchaser. The form and substance of the statements referenced in this
paragraph shall be to the reasonable satisfaction of Purchaser and shall include
such information as necessary to identify the ownership and total liability of
such Accounts. For the purposes of this Agreement any interest accrued on the
Transferred Accounts by Seller, but not due for payment as of the Closing Date,
shall be transferred to Purchaser in current funds pursuant to Paragraph 1.4
hereof, and Purchaser shall thereupon assume the liability therefor.
1.3 TRANSFER. Purchaser shall assume the liability for and thereafter
discharge, pay in full and perform all of Seller's obligations and duties
related to such Transferred Accounts as of the Closing Date subject to the terms
and conditions of this Agreement. Purchaser and Seller
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hereby agree that performance of this Agreement shall be subject to receipt of
all necessary regulatory approvals as set forth in this Agreement.
1.4 ASSUMPTION OF LIABILITY ON TRANSFERRED ACCOUNTS. Purchaser will
receive, for the assumption of liability on the Transferred Accounts (including
interest previously credited in accordance with the terms of the account and
interest accrued to the Closing Date), a cash payment at Closing equal to the
aggregate account balances of the Transferred Accounts and all interest accrued
on the Transferred Accounts but not due for payment or credited to the account
as of the Closing Date.
1.5 ACCOUNT HOLDERS. Each holder of a Transferred Account of Seller
shall, after the close of business on the Closing Date, automatically become a
holder of an Account in Purchaser, in a dollar amount equal to the withdraw able
value of the Account, Purchaser having assumed the liability for the Transferred
Accounts subject to the indemnification provisions contained herein and the
existing rights, delegations, assignments, appointments, powers of appointment
and privileges of the Account holders. Thereafter, each such account holder
shall be entitled to all of the rights and privileges of an account holder of
Purchaser, as prescribed by its Articles of Incorporation, Bylaws and account
rules and, when appropriate, be issued proper account documentation evidencing
such account in Purchaser. Purchaser shall continue to recognize the terms and
maturities of all of the transferred accounts as of the Closing Date until the
originally stated maturity date. Thereafter, such accounts shall be renewed upon
the terms of Purchaser for similar accounts. Purchaser shall be responsible for
all regulatory filings and for the issuance of Forms 1098 and 1099 for all
periods ending after the Closing Date. Seller shall be responsible for all
regulatory filings and for the issuance of forms 1098 and 1099 for all periods
prior to the Closing Date.
1.6 CONSIDERATION FOR TRANSFERRED ACCOUNTS. For and in consideration of
the transfer by Seller to Purchaser of the aggregate account balance of and the
accrued interest on the Transferred Accounts, Purchaser agrees to pay to Seller
on the Closing Date, a purchase price (the "Purchase Price" or "Deposit
Premium") equal to (a) eight and ninety-nine one hundredths percent (8.99%) on
the aggregate account balance of the core deposit Transferred Accounts and (b)
2% on the account balance of the public funds as defined in paragraph 1 and as
identified on the Schedules to Paragraph 1.2, SAID DEPOSIT PREMIUM ON PUBLIC
FUNDS TO BE PAID ON PUBLIC FUNDS NOT EXCEEDING A MAXIMUM OF $5,924,621. Any
public funds on deposit at the Branch Office in excess of $5,924,621 as of the
Closing Date shall be removed by Seller. The Purchase Price may be adjusted in
accordance with the provisions of Paragraph 1.2 hereof.
1.7 ACQUISITION OF FURNITURE, FIXTURES AND EQUIPMENT. Schedule 1.7,
attached hereto and specifically incorporated herein by this reference is a
preliminary schedule of the Assets presently located at the Branch Office, along
with said assets net book value as of July 31, 2000, which Seller agrees to
transfer to Purchaser at Closing for a price equal to the net book value thereof
as of the Closing Date. A final listing of specific items included in the Assets
and their then current net book value will be provided to Purchaser prior to the
Closing. Seller shall
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transfer its ownership of such Assets to Purchaser by a duly authorized Xxxx of
Sale. Such sale shall be "as is", and Seller makes no warranties whatsoever
except those set forth herein at Paragraph 2.14.
1.8 ASSIGNMENT OF LEASE. Seller agrees to assign to Purchaser, and
Purchaser agrees to assume, all of Seller's rights and obligations under that
certain Lease Agreement dated June 29, 1999 by and between XXXXXX XXXXXXX, INC.
("XXXXXXX") as Lessor and Seller as Lessee (the "Lease"), a copy of which Lease
is attached hereto as Schedule 1.8. The parties understand that such assignment
is subject to the consent of XXXXXXX, and the parties agree to fully cooperate
with each other and with XXXXXXX in order to obtain such consent. Purchaser
agrees to fully and timely perform the obligations under the Lease and to
indemnify and hold Seller harmless from any obligations or liabilities arising
out of the Lease or the Leased Premises (as defined in the Lease) which accrued
after the Closing. Seller shall pay all Lease obligations to the Closing Date,
and shall be entitled to credit at Closing for prepaid rent and for its security
deposit. Notwithstanding anything contained herein to the contrary, Purchaser's
performance of its obligations hereunder is specifically conditioned on its
ability to procure an assignment of the Lease under the same terms and
conditions as are currently contained therein.
1.9 ASSIGNMENT OF CONTRACTS. Seller agrees to assign to Purchaser, and
Purchaser agrees to assume, subject to the terms hereof, all of Seller's rights
and obligations under the Contracts set forth in Schedule 1.9 (collectively, the
"Contracts"). Purchaser agrees to fully and timely perform the obligations under
such Contracts and to indemnify and hold Seller harmless from any obligations or
liabilities arising out of such Contracts which accrue after Closing. Seller
shall pay all obligations under such Contracts to the date of Closing, and shall
be entitled to credit at Closing for prepaid expenses in connection with the
Contracts.
1.10 MISCELLANEOUS. Notwithstanding anything herein which may be
construed to the contrary, it is understood between the parties that any and all
agreements, licenses and rights between Seller and the National Basketball
Association, the Chicago Bulls and/or the United Center, of Chicago, Illinois,
and any and all rights and obligations emanating therefrom, shall be the sole
property and responsibility of Seller. Seller and Purchaser acknowledge and
agree that the Goldtimers Club program maintained by Seller shall be included in
the Transferred Assets.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Purchaser the following statements of
Essential Facts, which are true and correct on the date of this Agreement and
which shall be true and correct on the Closing Date, and of each of which shall
constitute a condition precedent to Purchaser's obligations hereunder:
2.1 ORGANIZATION AND STANDING. Seller is a capital stock savings bank
duly organized and validly existing and in good standing under the laws of the
United States of America, and it has all corporate powers and certificates of
authority, licenses, permits and other documentation
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to own its property and to carry on its business as it is now being conducted.
The deposit accounts of Seller, to the extent insurable, are insured by the FDIC
Savings Association Insurance Fund ("SAIF").
2.2 AUTHORITY. Seller has the full corporate power and authority to
enter into this Agreement and to carry out the transactions contemplated to be
carried out by it. This Agreement has been duly executed and delivered by Seller
and constitutes the legal, valid and binding obligation of Seller enforceable in
accordance with its terms.
2.3 NO MATERIAL CHANGE AFTER AGREEMENT. Until the transaction is
effective, Seller will conduct its operations related to the Branch Office and
to the Transferred Accounts hereunder in accordance with all applicable laws,
regulations, orders of regulatory authorities and in accordance with sound
business and past practices. Furthermore, between the date hereof and the
Closing provided for herein, unless otherwise agreed in writing, Seller shall
use its best efforts to maintain and preserve its business organization intact,
and to maintain its relationships and goodwill with the account holders,
employees and others having business relationships related to the Branch Office
and to the Accounts and the Assets which are the subject of this Agreement.
Seller will neither enter into nor materially amend any agreements related to
the operation of the Branch Office and will not offer a premium rate of interest
or increase its current deposit rates of interest to attract or maintain
deposits without the prior written consent of Purchaser, which consent may be
withheld by Purchaser in its sole discretion, nor artificially inflate the
aggregate account balances of the Transferred Accounts prior to Closing.
Notwithstanding anything contained herein to the contrary, Seller shall provide
Purchaser, on a weekly basis, with a report detailing new and renewed interest
bearing deposit accounts. Seller shall not invest in any Assets for the Branch
Office, except for replacements of furniture, furnishings and equipment and
normal maintenance made in the ordinary course of Branch Office business.
Notwithstanding the foregoing, Seller shall not make any expenditures in excess
of $10,000 for purchase or replacement of said assets without the written
consent of Purchaser, which consent shall not be unreasonably withheld. Seller
will not hire (other than to replace a departing employee and/or bring the
number of employees at the Branch Office to a normal staffing level), transfer,
reassign or terminate any employee of the Branch Office, increase the
compensation of any employee of the Branch Office, or promote any of the
employees of the Branch Office except pursuant to and consistent with Seller's
customary policies and procedures.
2.4 STANDSTILL. Seller will not, directly or indirectly, make,
encourage, facilitate, solicit, assist or initiate any inquiry, proposal or
offer to or by, or provide any information to or participate in any negotiations
with any other party related to a liquidation, consolidation, sale, purchase or
assumption related to the Branch Office or the Assets or the Accounts,
participate in any discussions or negotiations regarding the same, furnish any
information with respect to the same, assist or participate in, or facilitate in
any other manner any effort or attempt by any person to do or seek any of the
foregoing, or make any agreement with respect to or engage in any of the
foregoing anytime prior to December 31, 2000, unless this Agreement is
terminated prior to December 31, 2000.
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2.5 LITIGATION. There are no claims, demands, orders, actions, suits,
proceedings or other litigation (nor does Seller know of any investigation
preliminary thereto) of any nature pending or to the knowledge of Seller
threatened against Seller, related to the Accounts, the Assets or the Branch
Office, at law or in equity, before or by any Federal, State, municipal or other
court, governmental department, commission, board, bureau, agency or
instrumentality; there is no default existing or penalty incurred under any
agreement or obligation of or binding upon Seller nor is Seller aware of any
facts that could reasonably afford a basis for a cause of action against Seller.
2.6 BROKERS. Other than Xxxxx, Xxxxxxxx & Xxxxx, Inc. ("KBW"), whose
fees incurred as a result of this transaction shall be borne exclusively by
Seller, neither Seller nor any of its respective officers or directors has
retained or otherwise engaged or employed any broker, finder, or any other such
person or paid or agreed to pay any fee or commission to any agent, broker,
finder or other such person for or on account of this Agreement or the
transactions contemplated hereby.
2.7 ACCURACY OF STATEMENTS. Neither this Agreement nor any Schedule
hereto, statement, list, certificate or other information furnished or to be
furnished in writing by Seller to Purchaser in connection with this Agreement or
any of the transactions contemplated hereby contains or will contain an untrue
statement of a material fact or omits or will omit to state a material fact
necessary to make the statements contained herein or therein, taken as a whole
with all other such statements, lists, certificates or other information
furnished above in light of the circumstances in which they are made, not
misleading.
2.8 NO VIOLATION. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby will not violate or result
in a breach by Seller of, or constitute a default under, or conflict with, or
cause any acceleration of any obligation with respect to: any provision or
restriction of any charter, bylaw, loan or indenture of Seller or any provision
or restriction of any lien, lease agreement, contract, instrument, order,
judgment, award, decree, ordinance or regulation or any other restriction of any
kind or character to which any assets or properties of Seller are subject or by
which Seller is bound.
2.9 DISASTER PROVISION. The business and properties of the Branch
Office shall not have been adversely affected in any material way as a result of
any act of God, fire, flood, disturbance, or similar calamity.
2.10 MATERIAL CONTRACTS. Set forth in Schedule 1.9 is a listing and
description of all Contracts (whether written or oral) under which Seller is
obligated that relate to the Branch Office, and copies of such Contracts are
attached thereto.
2.11 NO DEFAULTS. The Lease and the Contract set forth in Schedule 1.8
and 1.9 are valid and in full force and effect. Seller has fulfilled and taken
all action reasonably necessary to enable it to fulfill when due all material
obligations under the Contracts; and there are no material
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defaults and no events have occurred that, with the lapse of time or election of
any other party, will become material defaults by it under any of the Contracts.
2.12 ENVIRONMENTAL. To the best knowledge of Seller, the Branch Office
is not contaminated with any wastes or Hazardous Substances. "Hazardous
Substances" means any substance presently listed, defined, designated or
classified as hazardous, toxic, radioactive or dangerous, or otherwise
regulated, under any Environmental Law, whether by type or by quantity,
including any such substance as a component. "Hazardous Substances" include
without limitation petroleum or any derivative or byproduct thereof, asbestos
radioactive material and poly chlorinated bi-phenyls.
2.13 SELLER'S BOARD OF DIRECTORS APPROVAL. Marked Schedule 2.13
attached hereto and specifically incorporated herein by this reference is a
certified copy of its Board of Directors' Resolution approving this transaction.
2.14 TITLE TO ASSETS. Seller has good and marketable title to the
Assets, free and clear of all liens, security interests, encumbrances or
restrictions on transfer.
2.15 DAMAGE TO ASSETS OR BRANCH OFFICE. There has been no damage,
destruction or loss (whether or not covered by insurance) to any of the Assets
set forth on Schedule 1.7 or the Branch Office.
2.16 CONDEMNATION. There are no pending or threatened condemnation
proceedings, suits or administrative actions relating to the Branch Office or
other matters materially and adversely affecting the current use, occupancy or
value thereof.
2.17 EMPLOYMENT. There are no employment agreements or collective
bargaining agreements that are binding upon Purchaser, nor any benefit packages
or benefits under which Purchaser will be obligated to any of the employees of
the Branch Office whether or not Purchaser hires any such employees of the
Branch Office.
2.18 TAXES. All taxes owed by Seller relating to the Branch Office, the
Accounts and the Assets have been paid.
2.19 LEASE. The Lease is legal, valid, binding, enforceable, and in
full force and effect and will continue to be legal, valid, binding,
enforceable, and in full force and effect on identical terms following the
consummation of the transactions contemplated hereby. No party to the Lease is
in breach or default, and no event has occurred which, with notice or lapse of
time, would constitute a breach or default or permit termination, modification
or acceleration thereunder. There are no disputes, oral agreements or
forbearance programs in effect as to the Lease. Seller has not assigned,
transferred, conveyed, mortgaged, deeded in trust or encumbered any interest in
the leasehold. There are no subleases, licenses, concessions, or other
agreements, written or oral, granting to any party or parties the right of use
or occupancy of any portion of the
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Branch Office, except as set forth in Schedule 2.19.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PURCHASER.
Purchaser represents and warrants to Seller the following statements of
Essential Facts, which are true and correct on the date of this Agreement and
which shall be true and correct on the Closing Date, and of each of which shall
constitute a condition precedent to Seller's obligations hereunder:
3.1 ORGANIZATION AND STANDING. Purchaser is an Illinois banking
corporation duly organized, validly existing and in good standing under the laws
of the State of Illinois, and it has all corporate powers and certificates of
authority, licenses, permits and other documentation to own its property and to
carry on its business as it is now being conducted. The deposit Accounts of
Purchaser, to the extent insurable, are insured by the FDIC.
3.2 AUTHORITY. Purchaser has the full corporate power and authority to
enter into this Agreement and to carry out the transactions contemplated to be
carried out by it. This Agreement has been duly executed and delivered by
Purchaser and constitutes the legal, valid and binding obligation or Purchaser,
enforceable in accordance with its terms.
3.3 PURCHASER'S BOARD OF DIRECTORS APPROVAL. Marked Schedule 3.3,
attached hereto and specifically incorporated herein by this reference is a
certified copy of its Board of Directors" Resolution approving this transaction.
3.4 BROKERS. Neither Purchaser nor any of its officers or directors has
retained or otherwise engaged or employed any broker, finder or any other person
or paid or agreed to pay any fee or commission to any agent, broker, finder or
other such person on account of this Agreement or the transaction contemplated
hereby.
3.5 REGULATORY APPLICATIONS. Purchaser shall prepare and submit for
filing, at no expense to Seller, any and all applications, filings, and
registrations with, and notifications to, all federal and state authorities
required on the part of Purchaser or any shareholder or affiliate of Purchaser
for the Acquisition to be consummated at the Closing as contemplated in ARTICLE
VI herein and for Purchaser to operate the Branch Office following the Closing.
Purchaser shall provide Seller with evidence to Seller's and Seller's counsel's
reasonable satisfaction of the filing of all such applications, filings and
registrations, all of which shall be made within sixty (60) days from the date
of this Agreement. Thereafter, Purchaser shall pursue all such applications,
filings, registrations, and notifications diligently and in good faith, and
shall file such supplements, amendments, and additional information in
connection therewith as may be reasonably necessary for the transactions
contemplated hereby to be consummated at such Closing and for Purchaser to
operate the Branch Office following the Closing. Purchaser shall deliver to
Seller evidence of the filing of each and all of such applications, filings,
registrations and notifications (except for any
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confidential portions thereof), and any supplement, amendment or item of
additional information in connection therewith (except for any confidential
portions thereof). Purchaser shall also deliver to Seller a copy of each
material notice, order, opinion and other item of correspondence received by
Purchaser from such federal and state authorities (except for any confidential
portions thereof) and shall advise Seller at Seller's request, of developments
and progress with respect to such matters.
ARTICLE IV
CONDITIONS PRECEDENT TO PURCHASER'S OBLIGATIONS.
Unless the conditions are waived by Purchaser, all obligations of
Purchaser under this Agreement are subject to the fulfillment, prior to or at
the Closing, of each of the following conditions:
4.1 OPINION OF COUNSEL TO SELLER. Seller shall have delivered to
Purchaser an opinion, dated as of the Closing, of Xxxx & Xxxxxxxxxxxx, Ltd.,
counsel for Seller, as to the validity of the transaction, and such other
matters as Purchaser may reasonably request. Such opinion shall be in form and
substance satisfactory to Purchaser and its counsel.
4.2 Intentionally Deleted.
4.3 REGULATORY APPROVALS. Purchaser and Seller shall have obtained and
received all necessary consents and approvals of all regulatory agencies and
other authorities having jurisdiction over this transaction necessary to
complete the transactions contemplated by this Agreement upon such terms and
conditions, if any, as are satisfactory to Purchaser in its reasonable judgment,
all waiting periods shall have expired, and there shall have been no motion for
rehearing or appeal from such approval or commencement of any suit or action by
any governmental authority seeking to enjoin the transaction provided herein or
to obtain other relief with respect thereto.
4.4 REPRESENTATIONS AND WARRANTIES. The representations and warranties
contained herein and in the exhibits hereto delivered by Seller or on its behalf
to Purchaser pursuant to this Agreement shall have been true and correct as of
the date of this Agreement and shall be true and correct as of the Closing as
though made on the Closing Date and shall survive the Closing as defined at
Paragraph 6.1 hereof.
4.5 PERFORMANCE OF AGREEMENTS. Seller shall have in all material
respects performed all obligations and agreements and complied with all
covenants and conditions contained in this Agreement to be performed and
complied with by it on or prior to the Closing.
4.6 CORPORATE APPROVALS. All necessary corporate action on the part of
the directors of Seller adopting and approving this Agreement and approving the
transactions contemplated
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hereby shall have been taken.
4.7 CONSENT OF OTHER PERSONS.
(i) Purchaser and Seller shall have received the consent of
On-Line Financial Services, Inc. ("OLFSI"), Seller's data processor, to the
conversion by Purchaser of the Transferred Accounts to Flserv CIR, Inc.
(hereinafter referred to as "Purchaser DP") (the "Data Processing Conversion").
The Data Processing Conversion shall be completed within one hundred and eighty
(180) days after the Closing Date. OLFSI shall covenant and consent to provide
Purchaser and/or Purchaser DP all system documentation, file layouts and files
on tape in a form acceptable to Purchaser DP within sixty (60) days prior to the
Closing Date and provide any and all additional information and assistance to
Purchaser and/or Purchaser DP as are reasonable and customary in conversions of
the kind contemplated by this Agreement. All costs and fees customarily assessed
by OLFSI to Seller for such data processing services in connection with the Data
Processing Conversion shall be paid by Seller. Purchaser shall pay all costs and
fees assessed by Purchaser's DP for the Data Processing Conversion. In the event
that reports or services are required by Purchaser and/or Purchaser DP from
OLFSI in order to complete the conversion, which are not customarily assessed by
OLFSI to Seller, the cost of said reports or services shall be paid by
Purchaser, up to a maximum of $35,000 for the three branches being purchased by
Purchaser from Seller, and any amount in excess of $35,000 shall be paid
one-half by Purchaser and one-half by Seller.
(ii) To the extent that any other material lease, contract or
Agreement to which Seller is a party and which is related to the terms of this
Agreement shall require the consent of any other person to the transactions
contemplated herein, such consent shall have been obtained by the Closing Date;
provided, however, that Seller shall not make as a condition for the obtaining
of any such consent, any agreements or undertakings not approved by Purchaser.
4.8 LITIGATION. No suit, action or proceeding by any governmental
agency shall have been instituted or threatened seeking to (i) enjoin, restrain
or prohibit the consummation of the transactions contemplated by this Agreement
which would in the reasonable judgment of Purchaser make it inadvisable to
consummate such transactions, or to (ii) cause any of the transactions
contemplated by this Agreement to be rescinded following consummation, or (iii)
that would affect adversely the right of Purchaser to operate the Branch Office
as a Branch Office of Purchaser; and no court order shall have been entered in
any action or proceeding instituted by any other person which enjoins, restrains
or prohibits this Agreement or consummation of the transactions contemplated by
this Agreement. No statute, rule, regulation, order, injunction or decree shall
have been enacted, entered, promulgated or enforced by a governmental entity,
which prohibits, restricts or makes illegal consummation of the transactions
contemplated hereby.
4.9 PROCEEDINGS SATISFACTORY TO COUNSEL. All proceedings taken by
Seller and all instruments executed and delivered by Seller on or prior to the
close of business on the Closing Date, in connection with the transactions
herein contemplated shall be reasonably satisfactory in form and substance to
Purchaser and its counsel.
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4.10 NO ADVERSE CHANGES. Between the date of this Agreement and the
Closing Date, the business of the Branch Office shall be conducted in the
ordinary course, consistent in all material respects with prudent banking
practices; there shall not have occurred any material adverse change or any
condition, event, circumstance, fact or occurrence that may be expected to
result in a material adverse change in the business of the Branch Office; and
the business and properties of the Branch Office shall be kept substantially
intact, including its present operations, physical facilities, working
conditions, and relationships with lessors, customers and employees.
4.11 DUE DILIGENCE. Commencing within ten (10) business days after the
date of this Agreement, Purchaser shall commence a not greater than ten (10)
business day due diligence examination of the Branch Office, including the
Assets, Accounts, and all other contracts, agreements and/or documents related
to the transactions contemplated by this Agreement (the "Initial Investigation")
and if Purchaser decides not to proceed with the transaction contemplated by
this Agreement as a result of such investigation, Purchaser shall so advise
Seller in writing within such ten (10) day period. Purchaser's failure to notify
Seller as aforesaid shall constitute satisfaction with the condition of the
Transferred Assets. Seller shall provide Purchaser full cooperation, disclosure
and complete access to all aspects of the Branch Office, including, but not
limited to all books, records, contracts, commitments, correspondence, accounts,
reports, properties and assets and with the full and complete cooperation of
Seller, its officers, directors, agents and representatives at the Branch
Office. Commencing five (5) business days prior to Closing, Purchaser shall
commence a three (3)-business day due diligence examination (the "Subsequent
Investigation") consistent with the Initial Investigation. The due diligence
examinations contemplated hereby shall be conducted at the sole discretion of
Purchaser's right to terminate this Agreement as a result of the Subsequent
Investigation shall be based strictly upon the existence of a material adverse
change affecting the Transferred Assets which Seller cannot or will not cure
within a reasonable period of time. No investigation by Purchaser shall affect
the representations and warranties of Seller set forth herein.
4.12 OLFSI AGREEMENT. OLFSI and Purchaser shall have agreed to the fees
and expenses to be charged by OLFSI to Purchaser for data processing services to
be provided by OLFSI to Purchaser (other than conversion fees) following the
Closing and until completion of the Data Processing Conversion set forth in
Paragraph 4.7(i), provided that Purchaser shall agree to OLFSI's fees and
expenses so long as the same are reasonable and in keeping with OLFSI's current
charges to Seller for the same services, plus the discount, if any, which Seller
may currently have which is attributable to a long term contract. OLFSI shall
agree to provide Purchaser and Purchaser DP separate financial information and
data relative to the Branch Office, including but not limited to (to the extent
available) separate general ledger and trial balance reports together with all
other daily reporting to the Branch Office as reasonably requested by Purchaser
and/or Purchaser DP until the completion of the Data Processing Conversion as
more fully described in Paragraph 4.7(i). Seller and OLFSI shall covenant to
cooperate with Purchaser and Purchaser DP in all matters during the account
transition period and the Data Processing Conversion process.
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4.13 CLOSING CERTIFICATE. Purchaser shall have received a certificate
signed by the President or another duly authorized officer of Seller and dated
as of the Closing Date, certifying in such detail as Purchaser may reasonably
request as to the fulfillment of the conditions to the obligations of Seller as
set forth in this Agreement.
4.14 SIMULTANEOUS CLOSINGS. Purchaser's and Seller's respective
obligations to complete the transaction contemplated by this Agreement is
contingent upon the simultaneous closing of the transaction between Seller and
Purchaser pursuant to written agreement ("Bridgeview Agreement"), dated of even
date herewith, regarding Purchaser's acquisition of Seller's core deposits and
assets at Seller's branch office located at 0000 X. Xxxxxxx Xxxx, Xxxxxxxxxx,
Xxxxxxxx, as more fully set forth in the Bridgeview Agreement.
ARTICLE V
CONDITIONS PRECEDENT TO SELLER'S OBLIGATIONS.
Unless the conditions are waived by Seller, all obligations of Seller
under this Agreement are subject to the fulfillment, prior to or at the Closing,
of each of the following conditions:
5.1 OPINION OF COUNSEL TO PURCHASER. Purchaser shall have delivered to
Seller an opinion, dated as of the Closing, of Xxxxxx & Karcazes, Ltd., counsel
for Purchaser, as to the validity of the transaction, and such other matters as
Seller may reasonably request. Such opinion shall be in form and substance
satisfactory to Seller and its counsel.
5.2 REGULATORY APPROVALS. Purchaser and Seller shall have obtained and
received all necessary consents and approvals of all regulatory agencies and
other authorities having jurisdiction over this transaction necessary to
complete the transactions contemplated by this Agreement.
5.3 REPRESENTATIONS AND WARRANTIES. The representations and warranties
contained herein by Purchaser pursuant to this Agreement shall have been true
and correct as of the date of this Agreement and shall be true and correct at
the Closing as though made on the Closing Date and shall survive the Closing as
defined at Paragraph 6.1 of this Agreement.
5.4 PERFORMANCE OF AGREEMENTS. Purchaser shall have in all material
respects performed all obligations and agreements and complied with all
covenants and conditions contained in this Agreement to be performed and
complied with by it on or prior to the Closing.
5.5 CORPORATE APPROVALS. All other corporate action on the part of the
directors of Purchaser adopting and approving this Agreement and approving the
transactions contemplated hereby shall have been taken.
5.6 CONSENT OF OTHER PERSONS. Seller and Purchaser shall have received
the consent
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of XXXXXXX to the assignment of the Lease.
5.7 LITIGATION. No action or proceeding by any governmental agency
shall have been instituted or threatened which would enjoin, restrain or
prohibit the consummation of the transaction contemplated by this Agreement
which would in the reasonable judgment of Seller make it inadvisable to
consummate such transactions, and no court order shall have been entered in any
action or proceeding instituted by any other person which enjoins or prohibits
this Agreement or consummation of the transactions contemplated by this
Agreement.
5.8 PROCEEDINGS SATISFACTORY TO COUNSEL. All proceedings taken by
Purchaser and all instruments executed and delivered by Purchaser on or prior to
the close of business on the Closing Date, in connection with the transactions
herein contemplated, shall be reasonably satisfactory in form and substance to
Seller and its counsel.
5.9 CLOSING CERTIFICATE. Seller shall have received a certificate
signed by the President or another duly authorized officer of Purchaser and
dated as of the Closing Date, certifying in such detail as Seller may reasonably
request as to the fulfillment of the conditions to the obligations of Purchaser
as set forth in this Agreement.
ARTICLE VI
THE CLOSING, EFFECTIVE AND TRANSFER DATES.
6.1 CLOSING DATE. The Closing of this transaction shall be after the
close of business on November 17, 2000 at the Branch Office or such other
location as shall be mutually agreed by the parties. Either Purchaser or Seller
shall be entitled to extend the Closing Date for up to forty-five ( 45) days to
a mutually agreeable date if the requesting party notifies the other party in
writing on or before October 17, 2000. Further, in the event that all the
necessary regulatory approvals have not been received thirty (30) days prior to
November 17, 2000, Closing will take place as soon as practical but not later
than thirty (30) days after receipt of all regulatory approvals and the
expiration of all notice periods. Whenever the term "Closing" or "Closing Date"
or similar term is used in this Agreement, it shall be deemed to be a reference
thereto. Seller shall advise Purchaser of the exact time and location of the
Closing in accordance with the foregoing.
6.2 Intentionally Deleted.
6.3 TRANSFER DATE. The Transfer Date shall be the first business day
(excluding Saturday and Sunday) following the Closing Date. At noon or earlier
on the Transfer Date, Seller shall pay to Purchaser, by wire transfer or by
transfer of immediately available funds, the net amount calculated pursuant to
Paragraphs 1.4, 1.6, 1.7, 1.8 and 6.4 hereof, as of Seller's close of business
on the Closing Date.
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6.4 PRORATIONS. All prorations, including but not limited to SAIF
premiums with respect to the Transferred Accounts, Lease obligations, prepaid
expenses recorded on the books of Seller incurred in the ordinary course of
Branch Office business, and utilities, shall be prorated as of the Closing,
unless otherwise set forth in this Agreement or otherwise agreed by the parties.
Purchaser shall be solely responsible for any fees, charges or assessments
imposed by the FDIC as a result of the transfer of the Transferral Accounts from
SAIF to the Bank Insurance Fund ("BIF").
6.5 SELLER'S ACTIONS AT CLOSING. At the Closing Seller shall, with
respect to the Branch Office:
(a) deliver to Purchaser at the Branch Office such of the Assets
purchased hereunder as shall be capable of physical delivery;
(b) execute, acknowledge and deliver to Purchaser all
assignments, bills of sale, and other instruments of conveyance, assignment, and
transfer as shall reasonably be necessary or advisable to consummate the sale,
assignment, and transfer of the Assets sold or assigned to Purchaser; the
originals of all blueprints, construction plans and specifications, which are
now in Seller's possession or which Seller has reasonable access to; and such
other documents or instruments as may be reasonably required by Purchaser,
required by other provisions of this Agreement, or reasonably necessary to
effectuate the Closing;
(c) execute, acknowledge and deliver to Purchaser a duly executed
and recordable assignment to Purchaser of the Lease and a consent to assignment
from XXXXXXX of the Lease all in a form reasonably satisfactory to Purchaser;
(d) assign, transfer, and make available to Purchaser such of the
following records as exist and are available and maintained at the Branch Office
(in whatever form or medium then maintained by Seller) pertaining to the
Accounts including but not limited to:
(i) signature cards and XXX plan and account documents; and
(ii) other orders, contracts, and agreements between Seller
and depositors of the Branch Office and records of similar character including
without limitation, data processing media, account histories and fiche records
(upon Purchaser's request, reasonably made, Seller will provide reasonable
assistance to Purchaser in locating the information described in this
sub-paragraph (ii)); and
(iii) a trial balance listing of records of Accounts.
(e) execute, acknowledge and deliver to Purchaser all
Certificates and other documents required to be delivered to Purchaser by Seller
at the Closing pursuant to the terms of this Agreement; and
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(f) assign Purchaser all Seller's rights in and to the Contracts
which are assignable.
6.6 PURCHASER'S ACTIONS AT THE CLOSING. At the Closing (unless another
time is specifically stated in ARTICLE VI hereof), Purchaser shall, with respect
to the Branch Office:
(a) execute, acknowledge, and deliver to Seller, to evidence the
assumption of the liabilities and obligations of Seller by Purchaser hereunder,
an instrument of assumption in a form reasonably satisfactory to Seller, and
Seller shall then accept, execute, and acknowledge such instrument. Copies of
such instrument may be recorded in the public records at the option of either
party hereto. The execution and acknowledgment of such instrument shall not be
deemed to be a waiver of any rights or obligations of any party to this
Agreement;
(b) receive, accept and acknowledge delivery of all Assets, and
all records and documentation relating thereto, sold, assigned, transferred,
conveyed or delivered to Purchaser by Seller hereunder;
(c) execute and deliver to Seller such written receipts for the
Assets, properties, records, and other materials assigned, transferred,
conveyed, or delivered to Purchaser hereunder as Seller may reasonably have
requested at or before the Closing;
(d) execute, acknowledge and deliver to Seller all Certificates
and other documents required to be delivered to Seller by Purchaser at the
Closing pursuant to the terms hereof; and
(e) execute, acknowledge and deliver to Seller an agreement
wherein Purchaser assumes obligations with respect to the Lease and Contracts
and the IRA's for all periods following the Closing Date with respect thereto.
ARTICLE VII
ACTIONS RESPECTING EMPLOYEES AND PENSIONS
AND EMPLOYEE BENEFIT PLANS.
7.1 EMPLOYMENT OF EMPLOYEES.
(a) Purchaser shall extend offers of employment, as of the
Closing Date, to such employees of the Branch Office listed in Schedule 7.1(a)
attached hereto and incorporated herein, which schedule shall include the names
of each employee, their date of employment, salary, type of health plan
coverage, including single or family coverage, number of dependents and portion
of premium paid by employee, and any applicable severance plan as may be
employed by Seller at the Branch Office as of the Closing Date (including,
without limitation, those employees who on the Closing Date are on family and
medical leave, military leave, or personal or pregnancy leave and who
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elect to return to work not later than one (1) year following the Closing Date;
individually and collectively the "Leave Employees" herein) for positions
entailing responsibilities in effect at Seller as of the Closing Date, and for a
base salary not less than that paid by Seller as of the Closing Date. Employees
accepting employment with Purchaser, including but not limited to the Leave
Employees, are referred to herein individually and collectively as the
"Transferred Employees." In the event that Purchaser shall transfer (except in a
comparable position and for comparable compensation to an office not more than
35 miles from the Branch Office at which the Transferred Employee is employed as
of the Closing Date, or at the request of the Transferred Employee), terminate
employment of, or reduce the base salary of, a Transferred Employee (the
"Terminated Employee") between the Closing Date and the date which is one (1)
year from the Closing Date, other than for cause, Purchaser shall pay to the
Terminated Employee a sum equal to the greater of that which the Terminated
Employee would have received on the date of such transfer, termination, or
reduction in salary under the severance plan of Seller applicable to the
Terminated Employee as of the date hereof and set forth in Schedule 7.1 or the
severance plan of Purchaser otherwise applicable to the Terminated Employee as
of the date of such transfer, termination, or reduction in base salary. Such
payment shall be due and owing the Terminated Employee on the date of such
transfer, termination, or reduction in salary. Nothing contained in this
Agreement shall restrict or prohibit Purchaser and any Transferred Employee from
entering into an agreement satisfactory to both Purchaser and the Transferred
Employee providing for resolution of matters set forth in this section.
(b) Seller will cooperate with Purchaser, to the extent
reasonably requested and legally permissible, to provide Purchaser with
information about the employees of the Branch Office including, without
limitation, providing Purchaser with the personnel files of those employees of
the Branch Office who provide Seller with their written consent thereto, and a
means to meet with the subject employees. Purchaser hereby agrees to indemnify
and to hold Seller and its affiliates and its and their officers, directors,
agents, and employees harmless from and against any and all liability, loss,
cost, and expense, however arising, as a result of release of information and/or
files concerning the referenced employees.
7.2 TERMS AND CONDITIONS OF EMPLOYMENT. Except as otherwise provided
explicitly in this Agreement, the terms of employment for each Transferred
Employee shall be determined solely by Purchaser's policies, procedures, and
programs; provided, however, that Purchaser agrees that each Transferred
Employee shall be provided employment subject to the following terms and
conditions:
(a) Base salary shall be at least equivalent to the rate of base
salary paid by Seller to such Transferred Employee as of the close of business
on the day prior to the Closing Date.
(b) Except as otherwise specifically provided herein, Transferred
Employees shall be provided employee benefits that are no less favorable in the
aggregate than those provided to similarly situated employees of Purchaser.
Purchaser shall provide such Transferred Employees with credit for the
Transferred Employee's period of service with Seller (including any service
credited from predecessors by merger or acquisition to Seller) towards the
calculation of eligibility and vesting for such purposes as vacation, sick days,
personal days, severance and other benefits, and
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participation and vesting in Purchaser's qualified pension and/or profit sharing
401 (k) plans, as such plans may exist (but not for purposes of funding of
accrued pension or profit sharing plans for such Transferred Employees with
respect to any period prior to the Closing Date).
(c) Each Transferred Employee currently participating in Seller's
medical, dental, health, health or other welfare plan, shall be eligible to
participate in the medical, dental, or other welfare plans of Purchaser, as such
plans may exist, on and after the Closing Date, and any pre-existing conditions
provisions of such plans shall be waived with respect to any such Transferred
Employees.
(d) With respect to any Transferred Employee who is also a Leave
Employee, upon conclusion of his or her short-term disability or temporary leave
of absence, subject to the terms and conditions of the Purchaser's plans and
policies and applicable law, each Transferred Employee on such leave shall
receive the salary and vacation benefits in effect when he or she went on leave,
shall otherwise be treated as a Transferred Employee, and, to the extent
practicable, shall be offered by the Purchaser the same or a substantially
equivalent position to his or her position with Seller prior to having gone on
leave.
(e) Except as provided herein, Seller shall pay, discharge, and
be responsible for (i) all salary and wages arising out of employment of the
Transferred Employees through the Closing Date, and (ii) any employee benefits
arising under Seller's employee benefit plans and employee programs prior to the
Closing Date (but not including sick days and personal days accrued but unused
by the Transferred Employee through the Closing Date and medical benefits, if
any, to Transferred Employees who retire after the Closing Date), including
benefits with respect to claims incurred prior to the Closing Date but reported
after the Closing Date and benefits inuring to Leave Employees prior to any
election by such Leave Employees to return to work with Purchaser. From and
after the Closing Date, Purchaser shall pay, discharge, and be responsible for
all salary, wages, and benefits arising out of or relating to the employment of
the Transferred Employees by Purchaser from and after the Closing Date,
including, without limitation, all claims for welfare benefits plans incurred on
or after the Closing Date. Claims are incurred as of the date services are
provided notwithstanding when the injury or illness may have occurred. To the
extent permitted under Purchaser's applicable 401 (k) plan, Seller and Purchaser
shall cooperate in arranging for the transfer to Purchaser's 401 (k) plan, as
soon as practicable after the Closing Date and in a manner that satisfies
sections 414(1) and 411 (d)(6) of the Internal Revenue Code, as amended, of
those accounts held under Seller's 401 (k) plan on behalf of Transferred
Employees.
7.3 COMPLIANCE WITH LAW. Purchaser agrees that it shall comply with
any and all applicable requirements, if any, under the Worker Adjustment and
Retraining Notification Act in connection with the transaction contemplated by
this Agreement. Purchaser hereby agrees to indemnify and to hold Seller and its
affiliates and its and their officers, directors, agents, and employees harmless
from and against any and all liability, loss, cost, and expense, however
arising, as a result of the failure of Purchaser to comply with its obligations
as set forth in this section.
7.4 ACTIONS TO BE TAKEN BY SELLER. Seller covenants to Purchaser that
it will do or cause
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the following to occur:
(a) COVENANT NOT TO COMPETE. Seller [and Xxxx X. Xxxxxxx,
individually] shall not, directly or indirectly, by or through any of its
directors, officers, employees, agents or subsidiaries, solicit deposits, market
any of its financial services (except for the existing mortgage and mortgage
purchase and resale business it currently operates under the name of "Xxxxx
Financial Services", hereinafter "Xxxxx") or engage in any retail banking or
provide financial services that are in direct competition with the business of
Purchaser, for a period of five (5) years within the Market Area of the Branch
whose business is being transferred under this Agreement [Market Area being
defined for the purposes of this Agreement to be within a radius of ten (10)
miles from 0000 X. Xxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx]; EXCEPT that any area
within said ten mile radius which falls west of I-294 and north of I-55 and
South of I-88, shall be deemed to be outside of the Market Area for the
purposes of this Covenant not to Compete. Notwithstanding the foregoing it is
understood and agreed that Seller shall change its name to "Umbrellabank" or
"Xxxxxxxxxxxx.xxx" or such other name which is not similar to "Argo" as soon
after the Closing of this transaction as the required regulatory approvals for
such a name change can be secured [Seller shall apply for said approval(s)
within thirty (30) days after the closing and provide Purchaser with evidence of
said application] and to continue to provide banking and related services
outside of the Market Area and conduct an electronic banking business under the
name of "Xxxxxxxxxxxx.xxx" both within and outside of the Market Area and that
said electronic banking business shall be exempt from the provisions of this
Covenant not to Compete PROVIDED that the marketing of said Xxxxxxxxxxxx.xxx's
services shall not be specifically targeted to the Market Area or the customers
of Seller whose accounts are being transferred to Purchaser under this Agreement
and that the name of "Argo Federal Savings Bank" is not used in connection with
any marketing of Xxxxxxxxxxxx.xxx's or Seller's services in the Market Area
during the term of this Covenant not to Compete (except to the extent that
banking regulations require the screen on Seller's Automated Teller Machines
("ATM's) to identify Umbrellabank as a "division of Argo Federal Savings Bank"
or to otherwise comply with banking regulations). Seller shall not install any
Automated Teller Machines (ATM's) within the Market Area (as defined
hereinabove) during the term of this Covenant, except that in the event that
Seller is obligated under any existing (or future) contracts to install ATMs
within the Market Area during the term of the Covenant not to Compete, Purchaser
shall have a right of first refusal to license each such additional ATM
installed, such right of first refusal to be expressly exercised by Purchaser in
a writing delivered to Seller within ten (10) days of receipt of written notice
thereof by Seller. If Purchaser exercises said right of first refusal, Purchaser
shall reimburse Seller for Seller's costs of installing said ATM, including the
cost of the ATM, labor and installation charges, and signage [the design and
content of said signage to be reasonably acceptable to Purchaser], and shall pay
a monthly fee to the Seller based on transaction volume at the rate of twenty
($0.20) cents per transaction. If Purchaser declines to exercise said right of
first refusal as provided herein, Seller shall have the right to install such
ATM(s) subject to the restrictions contained herein concerning the use of the
name "Argo" on said ATM(s).
Notwithstanding the provisions contained herein to the contrary, it is
understood that Seller shall continue to operate its existing branches located
at 00000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx, 0000 Xxxx Xxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx, 00 Xxxx Xxxx Xxxxxx, Xxxxxxx, Xxxxxxxx (to the extent that said
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branch is not sold to an affiliate of Purchaser) and at site to be located
within a one (1) mile radius of the intersection of Chicago Avenue and Halsted
Street in Chicago, Illinois or any other location outside the Market Area, under
its existing name until the name change referred to hereinabove shall be
approved (and thereafter under its name as so changed) and that the continued
operation of said branches by Seller shall not constitute a breach of the
Covenant not to Compete provided that the services of said branches shall not be
specifically targeted to the Market Area or the customers of Seller whose
accounts are being transferred to Purchaser under this Agreement. In addition,
it is agreed that Seller may maintain its corporate offices and the office of
"Xxxxx" at their present location at 0000 Xxxxxx Xxxx, Xxxxxx, Xxxxxxxx subject
to the restrictions contained in this Covenant not to Compete.
It is further agreed that in the event that Seller, or any entity in
which Xxxx X. Xxxxxxx (hereinafter "Xxxxxxx") is an officer, director or
employee, shall seek to acquire any financial institution which is located
outside of the Market Area during the term of this Covenant not to Compete, but
which institution has a branch located within the Market Area, Purchaser shall
have a right of first refusal with respect to any such branch(es) as may be
located within the Market Area, to be exercised by Purchaser in writing within
thirty (30) days after receiving written notice from Seller and/or Xxxxxxx,
which notice shall contain all of the terms and conditions of said proposed
acquisition and the usual and customary information and opportunity required by
a Purchaser to conduct due diligence.
(b) ENFORCEABILITY. The parties believe that the restrictive
covenants contained in this paragraph are reasonable. However, if any court of
competent jurisdiction subsequently holds these restrictions to be unreasonable,
whether as to scope, territory, or period of time specified herein, such scope,
territory, or period of time shall be deemed to be that which the court shall
declare or deem to be reasonable.
(c) INJUNCTIVE RELIEF. Seller recognizes that Purchaser may
suffer irreparable damage if the terms of this restrictive covenant are
violated, and that it will be difficult, if not impossible, to compute
Purchaser's actual damages resulting from such unauthorized competition. The
parties therefore agree that Purchaser may apply to a court of competent
jurisdiction to enjoin any threatened or actual breach of the covenants
contained herein, and that the prevailing party in any ensuing action shall be
entitled to recover its reasonable expenses, including court costs and
reasonable attorney's fees.
(d) SOLICITATION OF TRANSFERRED EMPLOYEES. Except with the
written consent of Purchaser, for a period of eighteen (18) months following the
Closing Date, Seller will not, directly or indirectly, solicit Transferred
Employees as prospective officers or employees of Seller; provided, however,
that Seller shall not be prohibited or restricted from hiring a Transferred
Employee if such Transferred Employee is terminated by Purchaser.
Notwithstanding anything herein to the contrary, it is agreed that any
transferred Employee who is hired by Seller after the Closing Date, shall be
bound by the terms of the Covenant not to Compete herein above set forth by
virtue of their employment by Seller.
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(e) EMPLOYEE BENEFIT PROGRAMS. Seller's obligations to employees
of the Branch Office, including Transferred Employees, will be as set forth in
established policies of Seller, and Seller shall continue its employee benefit
programs in full force and effect as benefit programs for Transferred Employees
through the Closing Date. After the Closing, Seller shall retain the
responsibility and liability for the funding and payment of all claims incurred
under such employee benefit programs through the Closing Date. Purchaser shall
have no obligation or liability to compensate Transferred Employees for benefits
of any kind earned, accrued, promised and/or provided to Transferred Employees
as employees of Seller, except with respect to eligibility and vesting as set
forth in Paragraph 7.2 above.
(f) EMPLOYEES OF THE BRANCH OFFICE. Seller shall not, without
Purchaser's prior written consent (i) increase the aggregate full-time
equivalent size of the work force at the Branch Office above the aggregate
normal staffing levels designated by Seller for the Branch Office at the date
hereof, (ii) terminate any Transferred Employee prior to the Closing Date,
unless such person is terminated for cause as determined at the sole discretion
of Seller or otherwise pursuant to existing Seller policies or procedures, or
(iii) increase the compensation of any Transferred Employee except pursuant to
existing Seller policies and procedures.
The obligations of Seller and Purchaser pursuant to this ARTICLE
VII shall survive the Closing.
ARTICLE VIII
ADDITIONAL AGREEMENTS
8.1 COOPERATION. Purchaser and Seller further covenant and agree that
each shall cooperate in expeditiously obtaining all necessary or appropriate
governmental approvals, consents or permits and in preparing any and all
applications contemplated by this Agreement, and will furnish such supporting
information or exhibits as may be required, and will not do, sanction or
knowingly permit any person under the control of each to do anything which might
in any way hinder, delay or prevent the expeditious approval of the transactions
contemplated by this Agreement or the orderly transition of Seller's customers
to Purchaser, or commit any act or omission which might be reasonably expected
to have such an effect.
8.2 CONFIDENTIALITY. Purchaser and Seller each agree to keep
confidential all information, documents, books, records and any other material
no matter how obtained from the other party hereto unless and until the
transaction contemplated herein is consummated, and if such transaction is not
consummated, each party hereto will return or cause to be returned to the
applicable party all such documents, material and information then in its
possession, or the possession of a representative of either, and neither party
hereto will divulge or use such information until it becomes known generally to
the public.
ARTICLE IX
TRANSITIONAL MATTERS
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9.1 TRANSITIONAL ACTION BY PURCHASER. After the Closing, unless
another time is otherwise indicated:
(a) Purchaser shall: (i) pay in accordance with the law and
customary banking practices and applicable Account contract terms, all properly
drawn and presented checks, negotiable orders of withdrawal, drafts, debits, and
withdrawal orders presented to Purchaser by mail, over the counter, through
electronic media, or through the check clearing system of the banking industry,
by depositors of the Transferred Accounts assumed by Purchaser hereunder,
whether drawn on checks, negotiable orders or withdrawal, drafts, or withdrawal
order forms provided by Purchaser or Seller; and (ii) in all other respects
discharge, in the usual course of the banking business, the duties and
obligations of Seller with respect to the balances due and owing to the
depositors whose Accounts are assumed by Purchaser hereunder; provided, however,
that any obligations of Purchaser pursuant to this Paragraph 9.1 to honor
checks, negotiable orders of withdrawal, drafts, and withdrawal orders on forms
provided by Seller and carrying its imprint (including its name and transit
routing number) shall not apply to any checks, drafts, withdrawal orders, or
returned items (i) presented to Purchaser more than two hundred ten (210) days
following the Closing Date, or (ii) on which a stop payment has been requested
by the deposit customer. Purchaser shall submit and file any required reports on
IRS Form 1099 with respect to interest accrued on Transferred Accounts after the
Closing Date. The provisions of this subsection 9.1 (a) shall in no way limit
Purchaser's duties or obligations arising under Paragraphs 1.3 and 1.4 hereof.
(b) Purchaser shall, not earlier than ten days after the time of
procurement of all regulatory approvals required for consummation of the
transaction contemplated by this Agreement nor later than five days prior to the
Closing Date, notify all depositors of the Offices by letter, acceptable to
Seller, produced in, if appropriate, several similar, but different forms
calculated to provide necessary and specific information to the owners of
particular types of accounts, of Purchaser pending assumption of the Transferred
Accounts hereunder, and, in appropriate instances, notify depositors that on and
after the Closing Date certain Seller deposit-related services and/or Seller's
debit card and automatic teller machine services impacted by the transactions
contemplated by this Agreement, will be terminated. As an enclosure to such
notices, Purchaser may furnish appropriate depositors with brochures, forms and
other written materials related or necessary to the assumption of the Accounts
by Purchaser and the conversion of said accounts to Purchaser accounts,
including the provision of checks to appropriate depositors using the forms of
Purchaser with instructions to such depositors to utilize such Purchaser checks
on and after the Closing Date and thereafter to destroy any unused checks on
Seller's forms. The expenses of the printing, processing and mailing of such
letter notices and providing new Purchaser checks and other forms and written
materials to appropriate customers shall be borne by Purchaser. Before Closing,
except as provided in this paragraph, Purchaser will not contact Seller's
customers except as may occur in connection with advertising or solicitations
directed to the public generally or in the course of obtaining the requisite
regulatory approvals of the transaction. Anything to the contrary herein
notwithstanding, Purchaser shall provide, at no cost to Seller, any and all
notices, communications, and filings which may be required by law, regulation,
or otherwise, relating to any changes in terms and other matters relating to the
Accounts occurring subsequent to the Closing Date. Any and all such notices,
communications, and filings which may be required to be provided prior to the
Closing Date shall be
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submitted on a timely basis for review by Seller and shall be subject to the
written approval of Seller prior to delivery to any third party. Purchaser shall
provide, at its sole cost and expense and at no cost or expense to Seller, that
any and all customer and other notices, communications, and filings provided by
Purchaser hereunder, including the substance and timing of same, fully comply
with the requirements of applicable law and regulation.
(c) Purchaser shall promptly pay to Seller an amount equivalent
to the amount of any checks, negotiable orders of withdrawal, drafts, withdrawal
orders, or returned items (net of the applicable Deposit Premium paid by
Purchaser with respect to the Transferred Accounts represented by any such
instrument) credited as of the close of business on the Closing Date to an
Account assumed by Purchaser hereunder which are returned uncollected to Seller
after the Closing Date. The foregoing shall include an amount equivalent to
holds placed upon such deposit account for items cashed by Seller as of the
close of business on the Closing Date.
(d) Purchaser shall, not later than the close of business on the
business day immediately following the Closing Date, supply suitable
government-backed securities as security for any deposits of governmental units
included among the Transferred Accounts for which Seller had provided similar
security.
(e) Purchaser hereby grants to Seller and its contractors access
to the Branch Office until 8:00 A.M. local time on the day following the
Transfer Date or such other later date and time as the parties may agree, at no
cost or expense to Seller, for conduct of activities consistent with this
Agreement in conjunction with the transactions contemplated hereby.
(f) The duties and obligations of Buyer in this Paragraph 9.1
shall survive the Closing.
9.2 TRANSITIONAL ACTIONS BY SELLER. After the Closing, unless another
time is otherwise indicated:
(a) Seller shall use its best efforts to cooperate with Purchaser
in assuring an orderly transition of ownership of the Assets and responsibility
for the liabilities, including the Transferred Accounts, assumed by Purchaser
hereunder. Seller shall provide final statements as of the Closing Date, in
conjunction with appropriate Transferred Accounts, with interest and service
charges pro-rated to close of business on the Closing Date. Seller shall submit
and file any required reports on IRS Form 1099 with respect to interest paid on
Transferred Accounts through the Closing Date. Notwithstanding the limitations
contained in 9.1(b), Seller shall, prior to issuing any notices to its customers
or the general public regarding the transaction contemplated by this Agreement,
obtain the prior written consent of Purchaser with respect to the content of
such notices. Purchaser shall not contact Seller's customers until the earlier
of (i) Seller's written consent, or (ii) receipt of all regulatory approvals and
the passage of any waiting periods, and all conditions precedent to Purchaser's
obligations hereunder have either been satisfied or waived in writing by
Purchaser.
(b) Prior to the Closing Date, Seller shall cooperate with
Purchaser, at Purchaser's
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expense and at no expense to Seller, in making Transferred Employees available
at reasonable times for whatever program of training Purchaser deems advisable;
provided, however, that Purchaser shall conduct such training program in a
manner that does not materially interfere with or prevent the performance of the
normal duties and activities of such Transferred Employees. Purchaser shall make
request of Seller for training opportunities prior to the Closing Date, and
shall reimburse Seller at the Closing for any and all costs relating to such
training including, but not limited to, regular and overtime salary for
Transferred Employees involved in training for the period of such training,
travel costs, and all expenses incurred by Seller or such Transferred Employees
in conjunction with the training. Such requests, which shall specify the time,
duration and place of such training, must be approved by Seller.
(c) Seller shall cooperate with Purchaser, at no expense to
Seller, to make provision for the installation of teller and platform equipment
in the Branch Office subject to approval by Seller; provided, however, that
Purchaser shall arrange for the installation and placement of such equipment at
such times and in a manner that does not significantly interfere with the normal
business activities and operation of Seller or the Branch Office.
(d) Seller shall resign as custodian of each XXX account
maintained at the Branch Office and assign the custodianship of such accounts to
Purchaser upon Closing subject to receipt of applicable customer consents and
other and analyze such provisions of this Agreement.
(e) Seller shall terminate its ATM/debit card service effective
as of close of business on the business day preceding the Closing Date or such
other date and time as Seller and Purchaser may agree. Such terminations will be
preceded by the notice described in Paragraph 9.1(b) herein. Seller shall have
no obligation with respect to conversion or change over with respect to direct
deposit or payroll and retirement payments service relating to the Transferred
Accounts following the Closing and, further, Purchaser shall assume all
responsibility and liability with respect thereto following the Closing. Seller
will continue to redirect and/or pass through relevant ACH transactions on
Transferred Accounts for a period of two hundred ten (210) days following the
Closing Date.
(f) As of the opening of business on the first business day after
the Closing Date, Seller and Purchaser shall provide the appropriate Federal
Reserve Bank (the "FRB") with all information necessary in order to expedite the
clearing and sorting of all checks, drafts, instruments and other commercial
paper relative to the Transferred Accounts (hereinafter collectively referred to
as "Paper Items"). Purchaser shall bear all charges and costs imposed by the
Federal Reserve in connection with the reassignment of account number ranges for
sorting the Paper Items.
In the event the Federal Reserve and/or any other regional or
local clearinghouse for negotiable instruments fails, refuses or is unable to
direct sort such Paper Items for delivery to Purchaser with the result that such
Paper Items are presented to Seller, by not later than 3:00 p.m. local time on
each business day following the Closing and continuing for two hundred ten (210)
days after the Closing, Seller will make available to Purchaser for pick up from
Seller's offices or the offices of Seller's agent and/or processor at 0000 Xxxx
00xx Xxxxxx, Xxxxxx, Xxxxxxxx all of the Paper
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Items which are received by Seller from the FRB and/or any regional or local
clearinghouse during the morning of each such business day on an "as-received
basis." At the same xxxx Xxxxxx shall also make available to Purchaser
information and records, including but not limited to systems printouts,
concerning such Paper Items and concerning incoming Automated Clearing House
items ("ACH items") as well as outstanding Automatic Teller Machine ("ATM")
transactions. Such information and records, including but not limited to systems
printouts, will utilize the most recent account number designated by Seller for
each of the Transferred Accounts. Purchaser shall initiate appropriate
Notification of Change requests relating to appropriate routing matters at the
sole expense of Purchaser within 30 days following the Closing Date. Each
business day Seller will endeavor to see that the sum of (a) the actual Paper
Items provided to Purchaser plus (b) all ACH items and ATM transactions captured
by Seller in its information and records balance with the sum of (c) the
information and records, including but not limited to systems printouts,
provided by Seller relative to the Paper Items plus (d) the information and
records, including but not limited to systems printouts, provided relative to
the ACH items and ATM transactions affecting the Transferred Accounts.
Except as otherwise expressly provided herein, Seller shall
provide the foregoing at no charge to Purchaser for a period not to exceed
thirty (30) days from the Closing Date except that Purchaser shall pay any
charges assessed to Seller by the FRB, a national or local clearinghouse and/or
Seller's agent and/or processor to the extent such assessments relate to the
Transferred Accounts ("Costs"). Purchaser shall be responsible for pick up of
the data to be provided by Seller and shall compensate Seller for activity
subsequent to the referenced 30 day period as follows: (i) $50.00 per day and
Seller's Costs plus ten (10%) percent thereof for days 31 through 60; (ii)
$50.00 per day and Seller's Costs plus fifteen (15%) percent thereof for days 61
through 120; and (iii) $50.00 per day and Seller's Costs plus twenty-five (25%)
percent thereof for days 121 through 180. Any request for extension of the
180-day period shall be submitted in writing by Purchaser to Seller not later
than 10 business days prior to the expiration of such 180-day period or any
extensions thereof and shall be subject to approval by Seller at its sole
discretion. Fees for activity subsequent to the 180 day period shall be as
determined by Seller. Fees for activity subsequent to the initial 30-day period
shall be assessed on a daily basis and included in the daily cash settlement.
Except as otherwise expressly provided herein, Purchaser shall be
responsible for processing any and all ACH returns, received subsequent to the
Closing, directly through the appropriate Federal Reserve Bank.
Seller and Purchaser shall arrange for appropriate daily
settlement between the parties in order that the transmission of all monies
associated with the matters set forth in this Paragraph 9.2(f) might be effected
promptly.
Seller shall not be liable to Purchaser for any failure to provide
the data required by this Paragraph 9.2(f) to the extent any such failure
results from causes beyond Seller's control including war, strike or other labor
disputes, acts of God, errors or failures of the FRB, and/or a participating
regional or local clearinghouse, or equipment failure or other emergency wherein
Seller and/or its agent processor has been unable to process in clearings from
the FRB or such
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clearinghouse.
(g) Seller shall, not earlier than the time of procurement of all
regulatory approvals required for consummation of the transaction contemplated
by this Agreement nor later than twenty days prior to the Closing Date, notify
all depositors of the Branch Office by letter acceptable to Purchaser, produced
in, if appropriate, several similar, but different forms calculated to provide
necessary and specific information to the owners of particular types of accounts
and/or loans, of Purchaser's pending assumption of the Transferred Accounts,
and, in appropriate instances, notify depositors that on and after the Closing
Date certain Seller deposit-related services and/or Seller's debit card and
automatic teller machine services, will be terminated. The expenses of the
printing, processing and mailing of such letter notices shall be borne by
Seller. Anything to the contrary herein notwithstanding, nothing in this
Agreement shall be deemed to constitute an assumption by Seller of the duties
and obligations of Purchaser with respect to the provision of applicable
notices, communications, and filings relating to changes in the terms of any
Transferred Accounts as set forth in this Agreement.
(h) The duties and obligations of the parties in this Paragraph
9.2 shall survive the Closing.
9.3 OVERDRAFTS AND TRANSITIONAL ACTION. Overdrafts on the Transferred
Accounts up to and including the date of Closing will be the responsibility and
risk of Seller and all fees associated therewith shall be the property of
Seller. Overdrafts on the Transferred Accounts after the date of Closing will be
the responsibility and risk of Purchaser and all fees associated therewith shall
be the property of Purchaser.
9.4 ATM'S AND DEBIT CARDS.
(a) In accordance with the provisions of Section 4.7 hereinabove,
Seller shall provide to Purchaser and/or Purchaser's data processor, a test tape
no later than sixty (60) days prior to the closing date and a production tape no
later than thirty (30) days prior to the closing date so that Purchaser may
produce AB or CCB ATM/Debit cards with the same PIN number as the customer is
currently utilizing for their ATM/Debit card transactions prior to Closing. Both
tapes shall include file formats and/or file layouts of all ATM/Debit card
information and all related custumer information. Seller shall further provide
any and all information and assistance required by Purchaser as are reasonable
and customary in conversions of the kind contemplated by this Agreement. In
addition, from the date that the production tape is produced until the Data
Processing Conversion, Seller shall maintain, make available and deliver to
Purchaser a manual log of all new/replacement cards issued, changes to existing
cards/PIN numbers, and other such data so that Purchaser may make similar manual
changes to cards being produced for customers to be used after the date of the
Data Processing Conversion. Upon the Data Processing Conversion, Seller's Data
Processor shall deactivate the operation of the Seller's ATM/Debit cards with
respect to the Transferred Accounts. Purchaser and Seller agree to settle, on a
daily basis, the net amount of ATM debits/credits associated with transferred
accounts until the conversion date. Seller shall provide all necessary
information and reports with respect to such ATM/Debit card activity on the
Transferred Accounts
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so that Purchaser may appropriately debit/credit the Transferred Accounts for
such ATM/Debit card activity and balance sais activity to the General Ledger or
Settlement Accounts.
(b (c) Purchaser and Seller agree to cooperate with each
other to assure that all transactions originated through the ATM or originated
with the ATM Cards prior to or on the Closing Date shall be for the account of
Seller and all transactions originated after the Closing Date shall be for the
account of Purchaser. A post closing adjustment shall be made to reflect all
such transactions, which cannot be reasonably calculated as of the Closing.
(c) In addition to the other payments to be made by Purchaser
hereunder, Purchaser agrees to also purchase the ATM terminal located at 0000
Xxxxxx Xxxx, Xxxxxx, Xxxxxxxx, for the book value of said ATM as of the Closing
Date and to enter into a lease for such ATM site in accordance with the
provisions of Schedule 9.4(d).
ARTICLE X
AMENDMENT; TERMINATION
10.1 AMENDMENT. This Agreement may be amended in writing at any time
with the mutual consent of the Board of Directors of Purchaser and Seller.
Purchaser and Seller hereby covenant that neither shall unreasonably take any
action or refuse to take any action, whether or not specifically or generally
contemplated as a part of this Agreement, wherein such action or non-action
would interfere with the accomplishment of the transaction contemplated by this
Agreement.
10.2 TERMINATION. This Agreement and the obligations created hereby
shall terminate in the event that any one or the following events occur: (i) the
necessary regulatory approvals have not been obtained prior December 1, 2000,
(ii) by the Board or Directors of Purchaser if any of the conditions provided in
ARTICLE IV herein shall not have satisfied, complied with or performed in any
material respect, and Purchaser shall not have waived such failure of
satisfaction, noncompliance or non-performance; or (iii) by the Board of
Directors of Seller if any of the conditions provided in ARTICLE V shall not
have been satisfied, complied with or performed in any material respect, and
Seller shall not have waived such failure of satisfaction, noncompliance or
non-performance; or (iv) the mutual agreement of the parties. Any material
condition contained in the approval of the transactions contemplated by this
Agreement by the FDIC, FRB, OBRE or the OTS will be subject to the consent of
the Boards of Directors of both Purchaser and Seller, as limited under the terms
of this Agreement.
If termination of this Agreement shall be judicially determined to have
been caused by breach of this Agreement by either party, then, in addition to
other remedies at law or equity for breach of this Agreement, breaching party
shall indemnify the other party for its costs, fees and expenses of its counsel,
accountants and other experts and advisors as well as fees and expenses incident
to negotiation, preparation and execution of this Agreement in related actions.
If termination of this Agreement shall be judicially determined to have been
caused by breach of this Agreement by either party, then the breaching party
shall pay promptly, and in any event within ten (10) days of receipt
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of written notice from the other party, to the other party TWO HUNDRED THOUSAND
AND NO/100THS ($200,000.00) DOLLARS plus the other party's costs, fees and
expenses of its counsel, accountants and other experts and advisors as well as
fees and expenses incident to negotiation, preparation and execution of this
Agreement, as liquidated damages.
Except as provided in the immediately preceding paragraph, if this
Agreement is terminated, for whatever reason, then (i) this Agreement shall
forthwith become void and of no effect and without liability to any party to
this Agreement; (ii) each party hereto shall pay all of its costs incurred by it
in the negotiation, preparation and execution of this Agreement and the
obtaining of the necessary approvals thereof, including fees and expenses of
legal counsel, accountants and other experts; and (iii) the parties shall
continue to be bound by the provisions of this Agreement which by their terms
are intended to be extended after termination of the Agreement and also by the
terms of that certain Confidentiality Agreement dated March 16, 2000 between the
parties (the "Confidentiality Agreement").
ARTICLE XI
MISCELLANEOUS
11.1 A. NON-SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
None of the representations or warranties and agreements in this Agreement or in
any instrument delivered pursuant to this Agreement shall survive the Closing
Date, except for the covenants and agreements, which by their terms are
contemplated to be performed after the Closing Date, including but not limited
to the Covenant not to Compete..
11.1 B. CLAIMS REGARDING THE TRANSFERRED ACCOUNTS. Notwithstanding
anything herein contained to the contrary it is agreed that all insurance
coverage relating to claims arising from Seller's administration of the
Transferred Accounts prior to the Closing Date shall, to the extent assignable,
be assigned to Purchaser. To the extent such insurance claims are either a) not
transferable or b) not otherwise covered by any insurance, then Seller agrees to
indemnify, defend, and hold Purchaser harmless from any losses, judgments,
expenses, attorneys fees or costs threatened or incurred by Purchaser as a
result of such claims, provided, however, that Seller shall not indemnify,
defend or hold Purchaser harmless from Purchaser's own negligence or willful
misconduct.
11.2 NOTICES. All notices, requests, demands and other communications
hereunder shall be in writing and may be delivered via facsimile transmission,
overnight carrier or registered or certified mail postage prepaid. When notice
is given via facsimile transmission, it shall be conclusively deemed to have
been received on the date of transmittal provided the sender receives
confirmation of transmittal to the number set forth below. Notice given by
overnight carrier shall be conclusively deemed received on the date following
the date sent. Notice sent registered or certified mail, postage prepaid, shall
be conclusively deemed to have been received three (3) business days after its
deposit in the United States mail when sent to the other party at the received
address set forth below. Either party may change the address to which notice
shall be sent by giving written notice to the other party.
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TO SELLER: Xx. Xxxx X. Xxxxxxx
Chairman of the Board and President
ARGO FEDERAL SAVINGS BANK, FSB
0000 Xxxx 00xx Xxxxxx
Xxxxxx, Xxxxxxxx 00000-0000
Facsimile No. (000) 000-0000
COPY TO: Xxxxx X. Xxxx, Xx.
XXXX & GRZELAKOWSKI, LTD.
0000 Xxxxxx Xxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
Facsimile No. (000) 000-0000
TO PURCHASER: Xxxxx X. Xxxxxxx
Chairman of the Board
Archer Bank
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile No.(000) 000-0000
COPY TO: Xxxxxx X. Xxxxxxxx
Xxxxxx & Karcazes, Ltd.
00 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Facsimile No. (000) 000-0000
11.3 SUCCESSORS AND ASSIGNS. All terms and provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective transferees, successors and assigns, but the Agreement may
not be assigned by either party without the written consent of the other.
11.4 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which taken together shall constitute one action and the
same instrument.
11.5 GOVERNING LAW. This Agreement is being delivered and is intended
to be performed in the State of Illinois and shall be construed and enforced in
accordance with the laws of the State of Illinois or the United States of
America, as applicable.
11.6 REMEDIES NOT EXCLUSIVE. No remedy conferred by any of the specific
provisions of this Agreement is intended to be exclusive of any other remedy,
and each and every remedy shall be cumulative and shall be in addition to every
other remedy given hereunder or now or hereafter
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existing at law or in equity or by statute or otherwise. The election of any one
or more remedies by either of the parties shall not constitute a waiver of the
right to pursue other available remedies.
11.7 ASSIGNMENT. This Agreement shall not be assignable by either
party without the written consent of the other. Nothing in this Agreement,
expressed or implied, is intended to confer upon any person other than the
parties hereto and their successors and permitted assigns any right or remedy
under or by reason of this Agreement.
11.8 COSTS. All of the costs and expenses, including legal and
accounting fees attendant to this transaction, incurred by either party in
connection with this Agreement and the transactions contemplated hereby shall be
paid by the party incurring the same, except as provided herein upon termination
caused by breach by either party.
11.9 PARAGRAPH HEADINGS. The paragraph headings in this Agreement are
for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
11.10 GENDER, ETC. Words herein, regardless of the number and gender
specifically used, shall be deemed and construed to include any other number,
singular or plural and any other gender, masculine, feminine or neuter, as the
context requires.
11.11 ENTIRE AGREEMENT. This Agreement, along with the Confidentiality
Agreement, constitutes the entire agreement between Purchaser and Seller. There
are no written or oral agreements between Purchaser and Seller in connection
with this Agreement that are not set forth herein or in the exhibits attached
hereto. This Agreement supersedes and replaces any and all prior agreements
between Purchaser and Seller whether written or oral, except the Confidentiality
Agreement.
11.12 SEVERABILITY. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions hereof or
the validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction; provided, however, that in the event the
invalid provision shall result in a material change in the terms or conditions
of this Agreement, the party against whom the provision affects may terminate
this Agreement; provided that such invalid or unenforceable provision(s) cannot
be replaced with a new provision which has the most nearly similar permitable
economic effect and which is acceptable to Purchaser and Seller.
11.13 RULE OF CONSTRUCTION. The language and all parts of this
Agreement shall in all cases be construed as a whole according to its fair
meaning, strictly neither for nor against any party hereto, and without
implication or presumption that the terms hereof shall be more strictly
construed against any party by reason of the rule of construction that a
document is to be construed more strictly against the person who prepared this
Agreement.
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as
of the date first above written.
ARGO FEDERAL SAVINGS BANK, FSB
BY:
-------------------------------------
XXXX X. XXXXXXX
ATTEST: PRESIDENT
--------------------------- -----------------------------------------
SECRETARY XXXX X. XXXXXXX, INDIVIDUALLY
AS TO COVENANT NOT TO COMPETE
AT SECTIONS 7.4(a)-(c) HEREINABOVE
XXXXXX BANK
ATTEST: BY:
-------------------------------------
XXXXX X. XXXXXXX
--------------------------- CHAIRMAN OF THE BOARD AND CHIEF
SECRETARY EXECUTIVE OFFICER
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(DEARBORN STATION)
BRANCH OFFICE
PURCHASE AGREEMENT
THIS BRANCH OFFICE PURCHASE AGREEMENT (Agreement) is made and entered
into this 18th day of August, 2000, by and between CHICAGO COMMUNITY BANK, an
Illinois banking corporation ("Purchaser"), an Illinois savings bank, and ARGO
FEDERAL SAVINGS BANK, FSB ("Seller"), a federally chartered savings bank.
RECITALS:
WHEREAS, Seller shall transfer to Purchaser, subject to the terms and
conditions of this Agreement, certain deposit accounts, including demand deposit
accounts, regular savings accounts, money market accounts, certificates of
deposit and negotiable order of withdrawal accounts attributable to its branch
office located at the Dearborn Station, 00 Xxxx Xxxx Xxxxxx, Xxxxxxx, Xxxxxxxx,
(the "Branch Office") as more fully described herein;
WHEREAS, Purchaser shall acquire from Seller, subject to the terms and
conditions of this Agreement, certain deposit accounts, including demand deposit
accounts, regular savings accounts, money market accounts, certificates of
deposit and negotiable order of withdrawal accounts attributable to the Branch
Office, as more fully described herein;
WHEREAS, Purchaser has agreed to acquire and Seller has agreed to sell
certain of the furniture, fixtures and equipment at the Branch Office (the
"Assets"), as more fully described herein;
WHEREAS, Purchaser has agreed to assume the liabilities of Seller with
respect to the lease pertaining to the Branch Office premises, as more fully
described herein;
WHEREAS, Purchaser and Seller have determined that the transactions
contemplated by this Agreement are in the best interests of their respective
shareholders or members; and
WHEREAS, the transactions contemplated by this Agreement have been
approved by at least a two-thirds vote of the respective entire Boards of
Directors of Purchaser and Seller and each has authorized their appropriate
officers to execute and attest to this Agreement and to make application for and
to receive the necessary supervisory approvals of the subject transactions from
the Federal Deposit Insurance Corporation (the "FDIC"), the Office of Banks and
Real Estate of the State of Illinois (the "OBRE"), the Federal Reserve Bank of
Chicago (the "FRB") and the Office of Thrift Supervision (the "OTS"), to the
extent necessary.
NOW THEREFORE, in consideration of the premises and the mutual promises
herein
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made, and in consideration of the representations, warranties, covenants, terms
and conditions set forth herein, Purchaser and Seller hereby covenant and agree
as follows:
ARTICLE I
TRANSFER/ASSUMPTION OF ACCOUNTS, ASSETS AND LEASES
1.1 IDENTIFICATION OF ACCOUNTS BY OFFICE LOCATION. Seller shall
transfer to Purchaser certain of its deposit accounts, including demand deposit
accounts, regular savings accounts, money market accounts, certificates of
deposit, accounts and negotiable order of withdrawal accounts, as more fully set
forth and described in Paragraph 2 hereof (hereinafter sometimes for convenience
collectively referred to as the "Accounts" or the "Transferred Accounts"); with
the said Accounts generally originating at and attributable to the Branch Office
except that Seller shall not transfer to and Purchaser shall not assume
liability for any brokered accounts (deposits originated by a third party other
than the deposit-holder), Accounts owned by affiliates, directors, officers
and/or employees of Seller who do not work at the Branch Office.
1.2 IDENTIFICATION OF TRANSFERRED ACCOUNTS BY EXHIBIT. Marked Schedule
1.2, attached hereto and specifically incorporated herein by this reference, is
a verified statement prepared and submitted in a form substantially similar in
format to previous reports tendered by Seller setting forth the identity of
holder, the type of account, account opening date, account maturity date,
principal balance (including accrued and credited interest of such account), and
interest rate payable on each of the Transferred Accounts as of July 31, 2000.
Seller shall also provide, or make available, to Purchaser such other account
information as may be required for legitimate business purposes. After the close
of business on the day preceding the Closing Date (as defined in Article VI
hereof), Seller hereby agrees to deliver to Purchaser a supplemental statement
verifying the information set forth in the preceding sentence together with such
information with respect to any new or additional accounts opened after August
1, 2000 on each of the Accounts to be transferred to Purchaser as of the date
three (3) days prior to the Closing Date (such 3-day period the "Gap Period") as
well as an identification of any accounts which were closed between the date of
the original Schedule 1.2 and Supplemental Schedule 1.2. A Post-closing Schedule
1.2 covering the Gap Period shall be delivered by Seller to Purchaser within ten
(10) days of the Closing Date. Any adjustment to the Purchase Price (as defined
in Paragraph 1.6) based upon a difference between the Supplemental Schedule 1.2
and the Post-Closing Schedule 1.2 shall be paid by a party to the other party
within five (5) business days following delivery of the Post-Closing Schedule
1.2 to Purchaser. The form and substance of the statements referenced in this
paragraph shall be to the reasonable satisfaction of Purchaser and shall include
such information as necessary to identify the ownership and total liability of
such Accounts. For the purposes of this Agreement any interest accrued on the
Transferred Accounts by Seller, but not due for payment as of the Closing Date,
shall be transferred to Purchaser in current funds pursuant to Paragraph 1.4
hereof, and Purchaser shall thereupon assume the liability therefor.
1.3 TRANSFER. Purchaser shall assume the liability for and thereafter
discharge, pay in full and perform all of Seller's obligations and duties
related to such Transferred Accounts as of
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the Closing Date subject to the terms and conditions of this Agreement.
Purchaser and Seller hereby agree that performance of this Agreement shall be
subject to receipt of all necessary regulatory approvals as set forth in this
Agreement.
1.4 ASSUMPTION OF LIABILITY ON TRANSFERRED ACCOUNTS. Purchaser will
receive, for the assumption of liability on the Transferred Accounts (including
interest previously credited in accordance with the terms of the account and
interest accrued to the Closing Date), a cash payment at Closing equal to the
aggregate account balances of the Transferred Accounts and all interest accrued
on the Transferred Accounts but not due for payment or credited to the account
as of the Closing Date.
1.5 ACCOUNT HOLDERS. Each holder of a Transferred Account of Seller
shall, after the close of business on the Closing Date, automatically become a
holder of an Account in Purchaser, in a dollar amount equal to the withdraw able
value of the Account, Purchaser having assumed the liability for the Transferred
Accounts subject to the indemnification provisions contained herein and the
existing rights, delegations, assignments, appointments, powers of appointment
and privileges of the Account holders. Thereafter, each such account holder
shall be entitled to all of the rights and privileges of an account holder of
Purchaser, as prescribed by its Articles of Incorporation, Bylaws and account
rules and, when appropriate, be issued proper account documentation evidencing
such account in Purchaser. Purchaser shall continue to recognize the terms and
maturities of all of the transferred accounts as of the Closing Date until the
originally stated maturity date. Thereafter, such accounts shall be renewed upon
the terms of Purchaser for similar accounts. Purchaser shall be responsible for
all regulatory filings and for the issuance of Forms 1098 and 1099 for all
periods ending after the Closing Date. Seller shall be responsible for all
regulatory filings and for the issuance of forms 1098 and 1099 for all periods
prior to the Closing Date.
1.6 CONSIDERATION FOR TRANSFERRED ACCOUNTS. For and in consideration
of the transfer by Seller to Purchaser of the aggregate account balance of and
the accrued interest on the Transferred Accounts, Purchaser agrees to pay to
Seller on the Closing Date, a purchase price (the "Purchase Price" or "Deposit
Premium") equal to eight and thirty-five one hundredths percent (8.35%) on the
aggregate account balance of the core deposit Transferred Accounts with a
MAXIMUM DEPOSIT PREMIUM OF $700,000 TO BE PAID ON THE DEPOSITS OF THE BRANCH AND
NO DEPOSIT PREMIUM TO BE PAID ON ANY PUBLIC FUNDS. The Purchase Price may be
adjusted in accordance with the provisions of Paragraph 1.2 hereof.
1.7 ACQUISITION OF FURNITURE, FIXTURES AND EQUIPMENT. Schedule 1.7,
attached hereto and specifically incorporated herein by this reference is a
preliminary schedule of the Assets presently located at the Branch Office, along
with said assets net book value as of July 31, 2000, which Seller agrees to
transfer to Purchaser at Closing for a price equal to the net book value thereof
as of the Closing Date. A final listing of specific items included in the Assets
and their then current net book value will be provided to Purchaser prior to the
Closing. Seller shall transfer its ownership of such Assets to Purchaser by a
duly authorized Xxxx of Sale. Such sale shall be "as is", and Seller makes no
warranties whatsoever except those set forth herein at
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Paragraph 2.14.
1.8 ASSIGNMENT OF LEASE. Seller agrees to assign to Purchaser, and
Purchaser agrees to assume, all of Seller's rights and obligations under that
certain Lease Agreement dated June 29, 1999 by and between DEARBORN STATION
ASSOCIATES II ("DSA II") as Lessor and Seller as Lessee (the "Lease") as
amended, a copy of which Lease is attached hereto as Schedule 1.8. The parties
understand that such assignment is subject to the consent of DSA II, and the
parties agree to fully cooperate with each other and with DSA II in order to
obtain such consent. Purchaser agrees to fully and timely perform the
obligations under the Lease and to indemnify and hold Seller harmless from any
obligations or liabilities arising out of the Lease or the Leased Premises (as
defined in the Lease) which accrued after the Closing. Seller shall pay all
Lease obligations to the Closing Date, and shall be entitled to credit at
Closing for prepaid rent and for its security deposit. Notwithstanding anything
contained herein to the contrary, Purchaser's performance of its obligations
hereunder is specifically conditioned on its ability to procure an assignment of
the Lease under the same terms and conditions as are currently contained
therein.
1.9 ASSIGNMENT OF CONTRACTS. Seller agrees to assign to Purchaser, and
Purchaser agrees to assume, subject to the terms hereof, all of Seller's rights
and obligations under the Contracts set forth in Schedule 1.9 (collectively, the
"Contracts"). Purchaser agrees to fully and timely perform the obligations under
such Contracts and to indemnify and hold Seller harmless from any obligations or
liabilities arising out of such Contracts which accrue after Closing. Seller
shall pay all obligations under such Contracts to the date of Closing, and shall
be entitled to credit at Closing for prepaid expenses in connection with the
Contracts.
1.10 MISCELLANEOUS. Notwithstanding anything herein which may be
construed to the contrary, it is understood between the parties that any and all
agreements, licenses and rights between Seller and the National Basketball
Association, the Chicago Bulls and/or the United Center, of Chicago, Illinois,
and any and all rights and obligations emanating therefrom, shall be the sole
property and responsibility of Seller. Seller and Purchaser acknowledge and
agree that the Goldtimers Club program maintained by Seller shall be included in
the Transferred Assets.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Purchaser the following statements of
Essential Facts, which are true and correct on the date of this Agreement and
which shall be true and correct on the Closing Date, and of each of which shall
constitute a condition precedent to Purchaser's obligations hereunder:
2.1 ORGANIZATION AND STANDING. Seller is a capital stock savings bank
duly organized and validly existing and in good standing under the laws of the
United States of America, and it has all corporate powers and certificates of
authority, licenses, permits and other documentation to own its property and to
carry on its business as it is now being conducted. The
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deposit accounts of Seller, to the extent insurable, are insured by the FDIC
Savings Association Insurance Fund ("SAIF").
2.2 AUTHORITY. Seller has the full corporate power and authority to
enter into this Agreement and to carry out the transactions contemplated to be
carried out by it. This Agreement has been duly executed and delivered by Seller
and constitutes the legal, valid and binding obligation of Seller enforceable in
accordance with its terms.
2.3 NO MATERIAL CHANGE AFTER AGREEMENT. Until the transaction is
effective, Seller will conduct its operations related to the Branch Office and
to the Transferred Accounts hereunder in accordance with all applicable laws,
regulations, orders of regulatory authorities and in accordance with sound
business and past practices. Furthermore, between the date hereof and the
Closing provided for herein, unless otherwise agreed in writing, Seller shall
use its best efforts to maintain and preserve its business organization intact,
and to maintain its relationships and goodwill with the account holders,
employees and others having business relationships related to the Branch Office
and to the Accounts and the Assets which are the subject of this Agreement.
Seller will neither enter into nor materially amend any agreements related to
the operation of the Branch Office and will not offer a premium rate of interest
or increase its current deposit rates of interest to attract or maintain
deposits without the prior written consent of Purchaser, which consent may be
withheld by Purchaser in its sole discretion, nor artificially inflate the
aggregate account balances of the Transferred Accounts prior to Closing.
Notwithstanding anything contained herein to the contrary, Seller shall provide
Purchaser, on a weekly basis, with a report detailing new and renewed interest
bearing deposit accounts. Seller shall not invest in any Assets for the Branch
Office, except for replacements of furniture, furnishings and equipment and
normal maintenance made in the ordinary course of Branch Office business.
Notwithstanding the foregoing, Seller shall not make any expenditures in excess
of $10,000 for purchase or replacement of said assets without the written
consent of Purchaser, which consent shall not be unreasonably withheld. Seller
will not hire (other than to replace a departing employee and/or bring the
number of employees at the Branch Office to a normal staffing level), transfer,
reassign or terminate any employee of the Branch Office, increase the
compensation of any employee of the Branch Office, or promote any of the
employees of the Branch Office except pursuant to and consistent with Seller's
customary policies and procedures.
2.4 STANDSTILL. Seller will not, directly or indirectly, make,
encourage, facilitate, solicit, assist or initiate any inquiry, proposal or
offer to or by, or provide any information to or participate in any negotiations
with any other party related to a liquidation, consolidation, sale, purchase or
assumption related to the Branch Office or the Assets or the Accounts,
participate in any discussions or negotiations regarding the same, furnish any
information with respect to the same, assist or participate in, or facilitate in
any other manner any effort or attempt by any person to do or seek any of the
foregoing, or make any agreement with respect to or engage in any of the
foregoing anytime prior to December 31, 2000, unless this Agreement is
terminated prior to December 31, 2000.
2.5 LITIGATION. There are no claims, demands, orders, actions, suits,
proceedings or
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other litigation (nor does Seller know of any investigation preliminary thereto)
of any nature pending or to the knowledge of Seller threatened against Seller,
related to the Accounts, the Assets or the Branch Office, at law or in equity,
before or by any Federal, State, municipal or other court, governmental
department, commission, board, bureau, agency or instrumentality; there is no
default existing or penalty incurred under any agreement or obligation of or
binding upon Seller nor is Seller aware of any facts that could reasonably
afford a basis for a cause of action against Seller.
2.6 BROKERS. Other than Xxxxx, Xxxxxxxx & Xxxxx, Inc. ("KBW"), whose
fees incurred as a result of this transaction shall be borne exclusively by
Seller, neither Seller nor any of its respective officers or directors has
retained or otherwise engaged or employed any broker, finder, or any other such
person or paid or agreed to pay any fee or commission to any agent, broker,
finder or other such person for or on account of this Agreement or the
transactions contemplated hereby.
2.7 ACCURACY OF STATEMENTS. Neither this Agreement nor any Schedule
hereto, statement, list, certificate or other information furnished or to be
furnished in writing by Seller to Purchaser in connection with this Agreement or
any of the transactions contemplated hereby contains or will contain an untrue
statement of a material fact or omits or will omit to state a material fact
necessary to make the statements contained herein or therein, taken as a whole
with all other such statements, lists, certificates or other information
furnished above in light of the circumstances in which they are made, not
misleading.
2.8 NO VIOLATION. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby will not violate or result
in a breach by Seller of, or constitute a default under, or conflict with, or
cause any acceleration of any obligation with respect to: any provision or
restriction of any charter, bylaw, loan or indenture of Seller or any provision
or restriction of any lien, lease agreement, contract, instrument, order,
judgment, award, decree, ordinance or regulation or any other restriction of any
kind or character to which any assets or properties of Seller are subject or by
which Seller is bound.
2.9 DISASTER PROVISION. The business and properties of the Branch
Office shall not have been adversely affected in any material way as a result of
any act of God, fire, flood, disturbance, or similar calamity.
2.10 MATERIAL CONTRACTS. Set forth in Schedule 1.9 is a listing and
description of all Contracts (whether written or oral) under which Seller is
obligated that relate to the Branch Office, and copies of such Contracts are
attached thereto.
2.11 NO DEFAULTS. The Lease and the Contract set forth in Schedule 1.8
and 1.9 are valid and in full force and effect. Seller has fulfilled and taken
all action reasonably necessary to enable it to fulfill when due all material
obligations under the Contracts; and there are no material defaults and no
events have occurred that, with the lapse of time or election of any other
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party, will become material defaults by it under any of the Contracts.
2.12 ENVIRONMENTAL. To the best knowledge of Seller, the Branch Office
is not contaminated with any wastes or Hazardous Substances. "Hazardous
Substances" means any substance presently listed, defined, designated or
classified as hazardous, toxic, radioactive or dangerous, or otherwise
regulated, under any Environmental Law, whether by type or by quantity,
including any such substance as a component. "Hazardous Substances" include
without limitation petroleum or any derivative or byproduct thereof, asbestos
radioactive material and poly-chlorinated bi-phenyls.
2.13 SELLER'S BOARD OF DIRECTORS APPROVAL. Marked Schedule 2.13
attached hereto and specifically incorporated herein by this reference is a
certified copy of its Board of Directors' Resolution approving this transaction.
2.14 TITLE TO ASSETS. Seller has good and marketable title to the
Assets, free and clear of all liens, security interests, encumbrances or
restrictions on transfer.
2.15 DAMAGE TO ASSETS OR BRANCH OFFICE. There has been no damage,
destruction or loss (whether or not covered by insurance) to any of the Assets
set forth on Schedule 1.7 or the Branch Office.
2.16 CONDEMNATION. There are no pending or threatened condemnation
proceedings, suits or administrative actions relating to the Branch Office or
other matters materially and adversely affecting the current use, occupancy or
value thereof.
2.17 EMPLOYMENT. There are no employment agreements or collective
bargaining agreements that are binding upon Purchaser, nor any benefit packages
or benefits under which Purchaser will be obligated to any of the employees of
the Branch Office whether or not Purchaser hires any such employees of the
Branch Office.
2.18 TAXES. All taxes owed by Seller relating to the Branch Office, the
Accounts and the Assets have been paid.
2.19 LEASE. The Lease is legal, valid, binding, enforceable, and in
full force and effect and will continue to be legal, valid, binding,
enforceable, and in full force and effect on identical terms following the
consummation of the transactions contemplated hereby. No party to the Lease is
in breach or default, and no event has occurred which, with notice or lapse of
time, would constitute a breach or default or permit termination, modification
or acceleration thereunder. There are no disputes, oral agreements or
forbearance programs in effect as to the Lease. Seller has not assigned,
transferred, conveyed, mortgaged, deeded in trust or encumbered any interest in
the leasehold. There are no subleases, licenses, concessions, or other
agreements, written or oral, granting to any party or parties the right of use
or occupancy of any portion of the Branch Office, except as set forth in
Schedule 2.19.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PURCHASER.
Purchaser represents and warrants to Seller the following statements of
Essential Facts, which are true and correct on the date of this Agreement and
which shall be true and correct on the Closing Date, and of each of which shall
constitute a condition precedent to Seller's obligations hereunder:
3.1 ORGANIZATION AND STANDING. Purchaser is an Illinois banking
corporation duly organized, validly existing and in good standing under the laws
of the State of Illinois, and it has all corporate powers and certificates of
authority, licenses, permits and other documentation to own its property and to
carry on its business as it is now being conducted. The deposit Accounts of
Purchaser, to the extent insurable, are insured by the FDIC.
3.2 AUTHORITY. Purchaser has the full corporate power and authority to
enter into this Agreement and to carry out the transactions contemplated to be
carried out by it. This Agreement has been duly executed and delivered by
Purchaser and constitutes the legal, valid and binding obligation or Purchaser,
enforceable in accordance with its terms.
3.3 PURCHASER'S BOARD OF DIRECTORS APPROVAL. Marked Schedule 3.3,
attached hereto and specifically incorporated herein by this reference is a
certified copy of its Board of Directors" Resolution approving this transaction.
3.4 BROKERS. Neither Purchaser nor any of its officers or directors
has retained or otherwise engaged or employed any broker, finder or any other
person or paid or agreed to pay any fee or commission to any agent, broker,
finder or other such person on account of this Agreement or the transaction
contemplated hereby.
3.5 REGULATORY APPLICATIONS. Purchaser shall prepare and submit for
filing, at no expense to Seller, any and all applications, filings, and
registrations with, and notifications to, all federal and state authorities
required on the part of Purchaser or any shareholder or affiliate of Purchaser
for the Acquisition to be consummated at the Closing as contemplated in ARTICLE
VI herein and for Purchaser to operate the Branch Office following the Closing.
Purchaser shall provide Seller with evidence to Seller's and Seller's counsel's
reasonable satisfaction of the filing of all such applications, filings and
registrations, all of which shall be made within sixty (60) days from the date
of this Agreement. Thereafter, Purchaser shall pursue all such applications,
filings, registrations, and notifications diligently and in good faith, and
shall file such supplements, amendments, and additional information in
connection therewith as may be reasonably necessary for the transactions
contemplated hereby to be consummated at such Closing and for Purchaser to
operate the Branch Office following the Closing. Purchaser shall deliver to
Seller evidence of the filing of each and all of such applications, filings,
registrations and notifications (except for any confidential portions thereof),
and any supplement, amendment
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or item of additional information in connection therewith (except for any
confidential portions thereof). Purchaser shall also deliver to Seller a copy of
each material notice, order, opinion and other item of correspondence received
by Purchaser from such federal and state authorities (except for any
confidential portions thereof) and shall advise Seller at Seller's request, of
developments and progress with respect to such matters.
ARTICLE IV
CONDITIONS PRECEDENT TO PURCHASER'S OBLIGATIONS.
Unless the conditions are waived by Purchaser, all obligations of
Purchaser under this Agreement are subject to the fulfillment, prior to or at
the Closing, of each of the following conditions:
4.1 OPINION OF COUNSEL TO SELLER. Seller shall have delivered to
Purchaser an opinion, dated as of the Closing, of Xxxx & Xxxxxxxxxxxx, Ltd.,
counsel for Seller, as to the validity of the transaction, and such other
matters as Purchaser may reasonably request. Such opinion shall be in form and
substance satisfactory to Purchaser and its counsel.
4.2 Intentionally Deleted.
4.3 REGULATORY APPROVALS. Purchaser and Seller shall have obtained and
received all necessary consents and approvals of all regulatory agencies and
other authorities having jurisdiction over this transaction necessary to
complete the transactions contemplated by this Agreement upon such terms and
conditions, if any, as are satisfactory to Purchaser in its reasonable judgment,
all waiting periods shall have expired, and there shall have been no motion for
rehearing or appeal from such approval or commencement of any suit or action by
any governmental authority seeking to enjoin the transaction provided herein or
to obtain other relief with respect thereto.
4.4 REPRESENTATIONS AND WARRANTIES. The representations and warranties
contained herein and in the exhibits hereto delivered by Seller or on its behalf
to Purchaser pursuant to this Agreement shall have been true and correct as of
the date of this Agreement and shall be true and correct as of the Closing as
though made on the Closing Date and shall survive the Closing as defined at
Paragraph 6.1 hereof.
4.5 PERFORMANCE OF AGREEMENTS. Seller shall have in all material
respects performed all obligations and agreements and complied with all
covenants and conditions contained in this Agreement to be performed and
complied with by it on or prior to the Closing.
4.6 CORPORATE APPROVALS. All necessary corporate action on the part of
the directors of Seller adopting and approving this Agreement and approving the
transactions contemplated hereby shall have been taken.
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4.7 CONSENT OF OTHER PERSONS.
(i) Purchaser and Seller shall have received the consent of
On-Line Financial Services, Inc. ("OLFSI"), Seller's data processor, to the
conversion by Purchaser of the Transferred Accounts to Flserv CIR, Inc.
(hereinafter referred to as "Purchaser DP") (the "Data Processing Conversion").
The Data Processing Conversion shall be completed within one hundred and eighty
(180) days after the Closing Date. OLFSI shall covenant and consent to provide
Purchaser and/or Purchaser DP all system documentation, file layouts and files
on tape in a form acceptable to Purchaser DP within sixty (60) days prior to the
Closing Date and provide any and all additional information and assistance to
Purchaser and/or Purchaser DP as are reasonable and customary in conversions of
the kind contemplated by this Agreement. All costs and fees customarily assessed
by OLFSI to Seller for such data processing services in connection with the Data
Processing Conversion shall be paid by Seller. Purchaser shall pay all costs and
fees assessed by Purchaser's DP for the Data Processing Conversion. In the event
that reports or services are required by Purchaser and/or Purchaser's DP from
OLFSI in order to complete the conversion, which are not customarily assessed by
OLFSI to Seller, the cost of said reports or services shall be paid by Purchaser
or its affiliates, up to a maximum of $35,000 for the three branches being
purchased by Purchaser or its affiliates from Seller, and any amount in excess
of $35,000 shall be paid one-half by Purchaser and one-half by Seller.
(ii) To the extent that any other material lease, contract or
Agreement to which Seller is a party and which is related to the terms of this
Agreement shall require the consent of any other person to the transactions
contemplated herein, such consent shall have been obtained by the Closing Date;
provided, however, that Seller shall not make as a condition for the obtaining
of any such consent, any agreements or undertakings not approved by Purchaser.
4.8 LITIGATION. No suit, action or proceeding by any governmental
agency shall have been instituted or threatened seeking to (i) enjoin, restrain
or prohibit the consummation of the transactions contemplated by this Agreement
which would in the reasonable judgment of Purchaser make it inadvisable to
consummate such transactions, or to (ii) cause any of the transactions
contemplated by this Agreement to be rescinded following consummation, or (iii)
that would affect adversely the right of Purchaser to operate the Branch Office
as a Branch Office of Purchaser; and no court order shall have been entered in
any action or proceeding instituted by any other person which enjoins, restrains
or prohibits this Agreement or consummation of the transactions contemplated by
this Agreement. No statute, rule, regulation, order, injunction or decree shall
have been enacted, entered, promulgated or enforced by a governmental entity,
which prohibits, restricts or makes illegal consummation of the transactions
contemplated hereby.
4.9 PROCEEDINGS SATISFACTORY TO COUNSEL. All proceedings taken by
Seller and all instruments executed and delivered by Seller on or prior to the
close of business on the Closing Date, in connection with the transactions
herein contemplated shall be reasonably satisfactory in form and substance to
Purchaser and its counsel.
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4.10 NO ADVERSE CHANGES. Between the date of this Agreement and the
Closing Date, the business of the Branch Office shall be conducted in the
ordinary course, consistent in all material respects with prudent banking
practices; there shall not have occurred any material adverse change or any
condition, event, circumstance, fact or occurrence that may be expected to
result in a material adverse change in the business of the Branch Office; and
the business and properties of the Branch Office shall be kept substantially
intact, including its present operations, physical facilities, working
conditions, and relationships with lessors, customers and employees.
4.11 DUE DILIGENCE. Commencing within ten (10) business days after the
date of this Agreement, Purchaser shall commence a not greater than ten (10)
business day due diligence examination of the Branch Office, including the
Assets, Accounts, and all other contracts, agreements and/or documents related
to the transactions contemplated by this Agreement (the "Initial Investigation")
and if Purchaser decides not to proceed with the transaction contemplated by
this Agreement as a result of such investigation, Purchaser shall so advise
Seller in writing within such ten (10) day period. Purchaser's failure to notify
Seller as aforesaid shall constitute satisfaction with the condition of the
Transferred Assets. Seller shall provide Purchaser full cooperation, disclosure
and complete access to all aspects of the Branch Office, including, but not
limited to all books, records, contracts, commitments, correspondence, accounts,
reports, properties and assets and with the full and complete cooperation of
Seller, its officers, directors, agents and representatives at the Branch
Office. Commencing five (5) business days prior to Closing, Purchaser shall
commence a three (3)-business day due diligence examination (the "Subsequent
Investigation") consistent with the Initial Investigation. The due diligence
examinations contemplated hereby shall be conducted at the sole discretion of
Purchaser and Purchaser's right to terminate this Agreement as a result of the
Subsequent Investigation shall be based strictly upon the existence of a
material adverse change affecting the Transferred Assets which Seller cannot or
will not cure within a reasonable period of time. No investigation by Purchaser
shall affect the representations and warranties of Seller set forth herein.
4.12 OLFSI AGREEMENT. OLFSI and Purchaser shall have agreed to the fees
and expenses to be charged by OLFSI to Purchaser for data processing services to
be provided by OLFSI to Purchaser (other than conversion fees) following the
Closing and until completion of the Data Processing Conversion set forth in
Paragraph 4.7(i), provided that Purchaser shall agree to OLFSI's fees and
expenses so long as the same are reasonable and are acceptable to Purchaser.
OLFSI shall agree to provide Purchaser and Purchaser DP separate financial
information and data relative to the Branch Office, including but not limited to
(to the extent available) separate general ledger and trial balance reports
together with all other daily reporting to the Branch Office as reasonably
requested by Purchaser and/or Purchaser DP until the completion of the Data
Processing Conversion as more fully described in Paragraph 4.7(i). Seller and
OLFSI shall covenant to cooperate with Purchaser and Purchaser DP in all matters
during the account transition period and the Data Processing Conversion process.
4.13 CLOSING CERTIFICATE. Purchaser shall have received a certificate
signed by the President or another duly authorized officer of Seller and dated
as of the Closing Date, certifying
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in such detail as Purchaser may reasonably request as to the fulfillment of the
conditions to the obligations of Seller as set forth in this Agreement.
4.14 Intentionally Deleted.
ARTICLE V
CONDITIONS PRECEDENT TO SELLER'S OBLIGATIONS.
Unless the conditions are waived by Seller, all obligations of Seller
under this Agreement are subject to the fulfillment, prior to or at the Closing,
of each of the following conditions:
5.1 OPINION OF COUNSEL TO PURCHASER. Purchaser shall have delivered to
Seller an opinion, dated as of the Closing, of Xxxxxx & Karcazes, Ltd., counsel
for Purchaser, as to the validity of the transaction, and such other matters as
Seller may reasonably request. Such opinion shall be in form and substance
satisfactory to Seller and its counsel.
5.2 REGULATORY APPROVALS. Purchaser and Seller shall have obtained and
received all necessary consents and approvals of all regulatory agencies and
other authorities having jurisdiction over this transaction necessary to
complete the transactions contemplated by this Agreement.
5.3 REPRESENTATIONS AND WARRANTIES. The representations and warranties
contained herein by Purchaser pursuant to this Agreement shall have been true
and correct as of the date of this Agreement and shall be true and correct at
the Closing as though made on the Closing Date and shall survive the Closing as
defined at Paragraph 6.1 of this Agreement.
5.4 PERFORMANCE OF AGREEMENTS. Purchaser shall have in all material
respects performed all obligations and agreements and complied with all
covenants and conditions contained in this Agreement to be performed and
complied with by it on or prior to the Closing.
5.5 CORPORATE APPROVALS. All other corporate action on the part of the
directors of Purchaser adopting and approving this Agreement and approving the
transactions contemplated hereby shall have been taken.
5.6 CONSENT OF OTHER PERSONS. Seller and Purchaser shall have received
the consent of DSA II to the assignment of the Lease.
5.7 LITIGATION. No action or proceeding by any governmental agency
shall have been instituted or threatened which would enjoin, restrain or
prohibit the consummation of the transaction contemplated by this Agreement
which would in the reasonable judgment of Seller make it inadvisable to
consummate such transactions, and no court order shall have been entered in any
action or proceeding instituted by any other person which enjoins or prohibits
this Agreement or consummation of the transactions contemplated by this
Agreement.
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5.8 PROCEEDINGS SATISFACTORY TO COUNSEL. All proceedings taken by
Purchaser and all instruments executed and delivered by Purchaser on or prior to
the close of business on the Closing Date, in connection with the transactions
herein contemplated, shall be reasonably satisfactory in form and substance to
Seller and its counsel.
5.9 CLOSING CERTIFICATE. Seller shall have received a certificate
signed by the President or another duly authorized officer of Purchaser and
dated as of the Closing Date, certifying in such detail as Seller may reasonably
request as to the fulfillment of the conditions to the obligations of Purchaser
as set forth in this Agreement.
ARTICLE VI
THE CLOSING, EFFECTIVE AND TRANSFER DATES.
6.1 CLOSING DATE. The Closing of this transaction shall be after the
close of business on November 17, 2000 at the Branch Office or such other
location as shall be mutually agreed by the parties. Either Purchaser or Seller
shall be entitled to extend the Closing Date for up to forty-five ( 45) days to
a mutually agreeable date if the requesting party notifies the other party in
writing on or before October 17, 2000. Further, in the event that all the
necessary regulatory approvals have not been received thirty (30) days prior to
November 17, 2000, Closing will take place as soon as practical but not later
than thirty (30) days after receipt of all regulatory approvals and the
expiration of all notice periods. Whenever the term "Closing" or "Closing Date"
or similar term is used in this Agreement, it shall be deemed to be a reference
thereto. Seller shall advise Purchaser of the exact time and location of the
Closing in accordance with the foregoing.
6.2 Intentionally Deleted.
6.3 TRANSFER DATE. The Transfer Date shall be the first business day
(excluding Saturday and Sunday) following the Closing Date. At noon or earlier
on the Transfer Date, Seller shall pay to Purchaser, by wire transfer or by
transfer of immediately available funds, the net amount calculated pursuant to
Paragraphs 1.4, 1.6, 1.7, 1.8 and 6.4 hereof, as of Seller's close of business
on the Closing Date.
6.4 PRORATIONS. All prorations, including but not limited to SAIF
premiums with respect to the Transferred Accounts, Lease obligations, prepaid
expenses recorded on the books of Seller incurred in the ordinary course of
Branch Office business, and utilities, shall be prorated as of the Closing,
unless otherwise set forth in this Agreement or otherwise agreed by the parties.
Purchaser shall be solely responsible for any fees, charges or assessments
imposed by the FDIC as a result of the transfer of the Transferral Accounts from
SAIF to the Bank Insurance Fund ("BIF").
6.5 SELLER'S ACTIONS AT CLOSING. At the Closing Seller shall, with
respect to the
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Branch Office:
(a) deliver to Purchaser at the Branch Office such of the Assets
purchased hereunder as shall be capable of physical delivery;
(b) execute, acknowledge and deliver to Purchaser all assignments,
bills of sale, and other instruments of conveyance, assignment, and transfer as
shall reasonably be necessary or advisable to consummate the sale, assignment,
and transfer of the Assets sold or assigned to Purchaser; the originals of all
blueprints, construction plans and specifications, which are now in Seller's
possession or which Seller has reasonable access to; and such other documents or
instruments as may be reasonably required by Purchaser, required by other
provisions of this Agreement, or reasonably necessary to effectuate the Closing;
(c) execute, acknowledge and deliver to Purchaser a duly executed
and recordable assignment to Purchaser of the Lease and a consent to assignment
from XXXXXXX of the Lease all in a form reasonably satisfactory to Purchaser;
(d) assign, transfer, and make available to Purchaser such of the
following records as exist and are available and maintained at the Branch Office
(in whatever form or medium then maintained by Seller) pertaining to the
Accounts including but not limited to:
(i) signature cards and XXX plan and account documents; and
(ii) other orders, contracts, and agreements between Seller
and depositors of the Branch Office and records of similar character including
without limitation, data processing media, account histories and fiche records
(upon Purchaser's request, reasonably made, Seller will provide reasonable
assistance to Purchaser in locating the information described in this
sub-paragraph (ii)); and
(iii) a trial balance listing of records of Accounts.
(e) execute, acknowledge and deliver to Purchaser all
Certificates and other documents required to be delivered to Purchaser by Seller
at the Closing pursuant to the terms of this Agreement; and
(f) assign Purchaser all Seller's rights in and to the Contracts
which are assignable.
6.6 PURCHASER'S ACTIONS AT THE CLOSING. At the Closing (unless another
time is specifically stated in ARTICLE VI hereof), Purchaser shall, with respect
to the Branch Office:
(a) execute, acknowledge, and deliver to Seller, to evidence the
assumption of the liabilities and obligations of Seller by Purchaser hereunder,
an instrument of assumption in a form reasonably satisfactory to Seller, and
Seller shall then accept, execute, and acknowledge such instrument. Copies of
such instrument may be recorded in the public records at the option
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of either party hereto. The execution and acknowledgment of such instrument
shall not be deemed to be a waiver of any rights or obligations of any party to
this Agreement;
(b) receive, accept and acknowledge delivery of all Assets, and
all records and documentation relating thereto, sold, assigned, transferred,
conveyed or delivered to Purchaser by Seller hereunder;
(c) execute and deliver to Seller such written receipts for the
Assets, properties, records, and other materials assigned, transferred,
conveyed, or delivered to Purchaser hereunder as Seller may reasonably have
requested at or before the Closing;
(d) execute, acknowledge and deliver to Seller all Certificates
and other documents required to be delivered to Seller by Purchaser at the
Closing pursuant to the terms hereof; and
(e) execute, acknowledge and deliver to Seller an agreement
wherein Purchaser assumes obligations with respect to the Lease and Contracts
and the IRA's for all periods following the Closing Date with respect thereto.
ARTICLE VII
ACTIONS RESPECTING EMPLOYEES AND PENSIONS
AND EMPLOYEE BENEFIT PLANS.
7.1 EMPLOYMENT OF EMPLOYEES.
(a) Purchaser shall extend offers of employment, as of the Closing
Date, to such employees of the Branch Office listed in Schedule 7.1(a) attached
hereto and incorporated herein, which schedule shall include the names of each
employee, their date of employment, salary, type of health plan coverage,
including single or family coverage, number of dependents and portion of premium
paid by employee, and any applicable severance plan as may be employed by Seller
at the Branch Office as of the Closing Date (including, without limitation,
those employees who on the Closing Date are on family and medical leave,
military leave, or personal or pregnancy leave and who elect to return to work
not later than one (1) year following the Closing Date; individually and
collectively the "Leave Employees" herein) for positions entailing
responsibilities in effect at Seller as of the Closing Date, and for a base
salary not less than that paid by Seller as of the Closing Date. Employees
accepting employment with Purchaser, including but not limited to the Leave
Employees, are referred to herein individually and collectively as the
"Transferred Employees." In the event that Purchaser shall transfer (except in a
comparable position and for comparable compensation to an office not more than
35 miles from the Branch Office at which the Transferred Employee is employed as
of the Closing Date, or at the request of the Transferred Employee), terminate
employment of, or reduce the base salary of, a Transferred Employee (the
"Terminated Employee") between the Closing Date and the date which is one (1)
year from the Closing Date, other than for
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cause, Purchaser shall pay to the Terminated Employee a sum equal to the greater
of that which the Terminated Employee would have received on the date of such
transfer, termination, or reduction in salary under the severance plan of Seller
applicable to the Terminated Employee as of the date hereof and set forth in
Schedule 7.1 or the severance plan of Purchaser otherwise applicable to the
Terminated Employee as of the date of such transfer, termination, or reduction
in base salary. Such payment shall be due and owing the Terminated Employee on
the date of such transfer, termination, or reduction in salary. Nothing
contained in this Agreement shall restrict or prohibit Purchaser and any
Transferred Employee from entering into an agreement satisfactory to both
Purchaser and the Transferred Employee providing for resolution of matters set
forth in this section.
(b) Seller will cooperate with Purchaser, to the extent reasonably
requested and legally permissible, to provide Purchaser with information about
the employees of the Branch Office including, without limitation, providing
Purchaser with the personnel files of those employees of the Branch Office who
provide Seller with their written consent thereto, and a means to meet with the
subject employees. Purchaser hereby agrees to indemnify and to hold Seller and
its affiliates and its and their officers, directors, agents, and employees
harmless from and against any and all liability, loss, cost, and expense,
however arising, as a result of release of information and/or files concerning
the referenced employees.
7.2 TERMS AND CONDITIONS OF EMPLOYMENT. Except as otherwise provided
explicitly in this Agreement, the terms of employment for each Transferred
Employee shall be determined solely by Purchaser's policies, procedures, and
programs; provided, however, that Purchaser agrees that each Transferred
Employee shall be provided employment subject to the following terms and
conditions:
(a) Base salary shall be at least equivalent to the rate of base
salary paid by Seller to such Transferred Employee as of the close of business
on the day prior to the Closing Date.
(b) Except as otherwise specifically provided herein, Transferred
Employees shall be provided employee benefits that are no less favorable in the
aggregate than those provided to similarly situated employees of Purchaser.
Purchaser shall provide such Transferred Employees with credit for the
Transferred Employee's period of service with Seller (including any service
credited from predecessors by merger or acquisition to Seller) towards the
calculation of eligibility and vesting for such purposes as vacation, sick days,
personal days, severance and other benefits, and participation and vesting in
Purchaser's qualified pension and/or profit sharing 401 (k) plans, as such plans
may exist (but not for purposes of funding of accrued pension or profit sharing
plans for such Transferred Employees with respect to any period prior to the
Closing Date).
(c) Each Transferred Employee currently participating in Seller's
medical, dental, health, health or other welfare plan, shall be eligible to
participate in the medical, dental, or other welfare plans of Purchaser, as such
plans may exist, on and after the Closing Date, and any pre-existing conditions
provisions of such plans shall be waived with respect to any such Transferred
Employees.
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(d) With respect to any Transferred Employee who is also a Leave
Employee, upon conclusion of his or her short-term disability or temporary leave
of absence, subject to the terms and conditions of the Purchaser's plans and
policies and applicable law, each Transferred Employee on such leave shall
receive the salary and vacation benefits in effect when he or she went on leave,
shall otherwise be treated as a Transferred Employee, and, to the extent
practicable, shall be offered by the Purchaser the same or a substantially
equivalent position to his or her position with Seller prior to having gone on
leave.
(e) Except as provided herein, Seller shall pay, discharge, and be
responsible for (i) all salary and wages arising out of employment of the
Transferred Employees through the Closing Date, and (ii) any employee benefits
arising under Seller's employee benefit plans and employee programs prior to the
Closing Date (but not including sick days and personal days accrued but unused
by the Transferred Employee through the Closing Date and medical benefits, if
any, to Transferred Employees who retire after the Closing Date), including
benefits with respect to claims incurred prior to the Closing Date but reported
after the Closing Date and benefits inuring to Leave Employees prior to any
election by such Leave Employees to return to work with Purchaser. From and
after the Closing Date, Purchaser shall pay, discharge, and be responsible for
all salary, wages, and benefits arising out of or relating to the employment of
the Transferred Employees by Purchaser from and after the Closing Date,
including, without limitation, all claims for welfare benefits plans incurred on
or after the Closing Date. Claims are incurred as of the date services are
provided notwithstanding when the injury or illness may have occurred. To the
extent permitted under Purchaser's applicable 401 (k) plan, Seller and Purchaser
shall cooperate in arranging for the transfer to Purchaser's 401 (k) plan, as
soon as practicable after the Closing Date and in a manner that satisfies
sections 414(1) and 411 (d)(6) of the Internal Revenue Code, as amended, of
those accounts held under Seller's 401 (k) plan on behalf of Transferred
Employees.
7.3 COMPLIANCE WITH LAW. Purchaser agrees that it shall comply with
any and all applicable requirements, if any, under the Worker Adjustment and
Retraining Notification Act in connection with the transaction contemplated by
this Agreement. Purchaser hereby agrees to indemnify and to hold Seller and its
affiliates and its and their officers, directors, agents, and employees harmless
from and against any and all liability, loss, cost, and expense, however
arising, as a result of the failure of Purchaser to comply with its obligations
as set forth in this section.
7.4 ACTIONS TO BE TAKEN BY SELLER. Seller covenants to Purchaser that
it will do or cause the following to occur:
(a) COVENANT NOT TO COMPETE. Seller [and Xxxx X. Xxxxxxx,
individually] shall not, directly or indirectly, by or through any of its
directors, officers, employees, agents or subsidiaries, solicit deposits, market
any of its financial services (except for the existing mortgage and mortgage
purchase and repurchase business it currently operates under the name of "Xxxxx
Financial Services", hereinafter "Xxxxx") or engage in any retail banking or
provide financial services that are in direct competition with the business of
Purchaser, for a period of five (5) years within the Market Area of the Branch
whose business is being transferred under this Agreement [Market Area being
defined for the purposes of this Agreement to be within a radius of ten (10)
miles from 00 Xxxx Xxxx
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Street, Chicago, Illinois]; Notwithstanding the foregoing it is understood and
agreed that Seller shall change its name to "Umbrellabank" or "Xxxxxxxxxxxx.xxx"
or such other name which is not similar to "Argo" as soon after the Closing of
this transaction as the required regulatory approvals for such a name change can
be secured [Seller shall apply for said approval(s) within thirty (30) days
after the closing and provide Purchaser with evidence of said application] and
to continue to provide banking and related services outside of the Market Area
and conduct an electronic banking business under the name of "Xxxxxxxxxxxx.xxx"
both within and outside of the Market Area and that said electronic banking
business shall be exempt from the provisions of this Covenant not to Compete
PROVIDED that the marketing of Seller's other branch locations and
Xxxxxxxxxxxx.xxx's services shall not be specifically targeted to the Market
Area or the customers of Seller whose accounts are being transferred to
Purchaser under this Agreement and that the name of "Argo Federal Savings Bank"
is not used in connection with any marketing of Xxxxxxxxxxxx.xxx's or Seller's
services in the Market Area during the term of this Covenant not to Compete
(except to the extent that banking regulations require the screen on Seller's
Automated Teller machines ("ATMs") to identify Umbrellabank as a "division of
Argo Federal Savings Bank" or to otherwise comply with banking regulations).
Notwithstanding the provisions contained herein to the contrary, it is
understood that Seller shall continue to operate its existing branches located
at 00000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx, 0000 Xxxx Xxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx [as well as 0000 Xxxx 00xx Xxxxxx, Xxxxxx, Xxxxxxxx and 0000 X. Xxxxxxx
Xxxx, Xxxxxxxxxx, Xxxxxxxx to the extent that said branches are not sold to an
affiliate of Purchaser] and at a site to be located within a one (1) mile radius
of the intersection of Chicago Avenue and Halsted Street in Chicago, Illinois or
any other location outside the Market Area, under its existing name until the
name change referred to hereinabove shall be approved (and thereafter under its
name as so changed) and that the continued operation of said branches by Seller
shall not constitute a breach of the Covenant not to Compete provided that the
services of said branches shall not be specifically targeted to the customers of
Seller whose accounts are being transferred to Purchaser under this Agreement
and that the marketing of the branch at 0000 Xxxx Xxxxxxx Xxxxxx and the branch
at a location within a one mile radius of Chicago Avenue and Halsted Street,
will be limited to window signs and the monthly Near West Side gazette and
program books and ad books, said marketing not to be greater than the average of
such marketing at the branch at 0000 Xxxx Xxxxxxx Xxxxxx during the three month
period immediately prior to the date of this Agreement. In addition, it is
agreed that Seller may maintain its corporate offices and the office of "Xxxxx"
at their present location at 0000 Xxxxxx Xxxx, Xxxxxx, Xxxxxxxx subject to the
restrictions contained in this Covenant not to Compete.
It is further agreed that in the event that Seller, or any entity in
which Xxxx X. Xxxxxxx (hereinafter "Xxxxxxx") is an officer, director or
employee, shall seek to acquire any financial institution which is located
outside of the Market Area during the term of this Covenant not to Compete, but
which institution has a branch located within the Market Area, Purchaser shall
have a right of first refusal with respect to any such branch(es) as may be
located within the Market Area, to be exercised by Purchaser in writing within
thirty (30) days after receiving written notice from Seller and/or Xxxxxxx,
which notice shall contain all of the terms and conditions of said proposed
acquisition and the usual and customary information and opportunity required by
a Purchaser to conduct due diligence.
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(b) ENFORCEABILITY. The parties believe that the restrictive covenants
contained in this paragraph are reasonable. However, if any court of competent
jurisdiction subsequently holds these restrictions to be unreasonable, whether
as to scope, territory, or period of time specified herein, such scope,
territory, or period of time shall be deemed to be that which the court shall
declare or deem to be reasonable.
(c) INJUNCTIVE RELIEF. Seller recognizes that Purchaser may suffer
irreparable damage if the terms of this restrictive covenant are violated, and
that it will be difficult, if not impossible, to compute Purchaser's actual
damages resulting from such unauthorized competition. The parties therefore
agree that Purchaser may apply to a court of competent jurisdiction to enjoin
any threatened or actual breach of the covenants contained herein, and that the
prevailing party in any ensuing action shall be entitled to recover its
reasonable expenses, including court costs and reasonable attorney's fees.
(d) SOLICITATION OF TRANSFERRED EMPLOYEES. Except with the written
consent of Purchaser, for a period of eighteen (18) months following the Closing
Date, Seller will not, directly or indirectly, solicit Transferred Employees as
prospective officers or employees of Seller; provided, however, that Seller
shall not be prohibited or restricted from hiring a Transferred Employee if such
Transferred Employee is terminated by Purchaser. Notwithstanding anything herein
to the contrary, it is agreed that any transferred Employee who is hired by
Seller after the Closing Date, shall be bound by the terms of the Covenant not
to Compete herein above set forth by virtue of their employment by Seller.
(e) EMPLOYEE BENEFIT PROGRAMS. Seller's obligations to employees of the
Branch Office, including Transferred Employees, will be as set forth in
established policies of Seller, and Seller shall continue its employee benefit
programs in full force and effect as benefit programs for Transferred Employees
through the Closing Date. After the Closing, Seller shall retain the
responsibility and liability for the funding and payment of all claims incurred
under such employee benefit programs through the Closing Date. Purchaser shall
have no obligation or liability to compensate Transferred Employees for benefits
of any kind earned, accrued, promised and/or provided to Transferred Employees
as employees of Seller, except with respect to eligibility and vesting as set
forth in Paragraph 7.2 above.
(f) EMPLOYEES OF THE BRANCH OFFICE. Seller shall not, without
Purchaser's prior written consent (i) increase the aggregate full-time
equivalent size of the work force at the Branch Office above the aggregate
normal staffing levels designated by Seller for the Branch Office at the date
hereof, (ii) terminate any Transferred Employee prior to the Closing Date,
unless such person is terminated for cause as determined at the sole discretion
of Seller or otherwise pursuant to existing Seller policies or procedures, or
(iii) increase the compensation of any Transferred Employee except pursuant to
existing Seller policies and procedures.
The obligations of Seller and Purchaser pursuant to this ARTICLE VII
shall survive the Closing.
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ARTICLE VIII
ADDITIONAL AGREEMENTS
8.1 COOPERATION. Purchaser and Seller further covenant and agree that
each shall cooperate in expeditiously obtaining all necessary or appropriate
governmental approvals, consents or permits and in preparing any and all
applications contemplated by this Agreement, and will furnish such supporting
information or exhibits as may be required, and will not do, sanction or
knowingly permit any person under the control of each to do anything which might
in any way hinder, delay or prevent the expeditious approval of the transactions
contemplated by this Agreement or the orderly transition of Seller's customers
to Purchaser, or commit any act or omission which might be reasonably expected
to have such an effect.
8.2 CONFIDENTIALITY. Purchaser and Seller each agree to keep
confidential all information, documents, books, records and any other material
no matter how obtained from the other party hereto unless and until the
transaction contemplated herein is consummated, and if such transaction is not
consummated, each party hereto will return or cause to be returned to the
applicable party all such documents, material and information then in its
possession, or the possession of a representative of either, and neither party
hereto will divulge or use such information until it becomes known generally to
the public.
ARTICLE IX
TRANSITIONAL MATTERS
9.1 TRANSITIONAL ACTION BY PURCHASER. After the Closing, unless
another time is otherwise indicated:
(a) Purchaser shall: (i) pay in accordance with the law and
customary banking practices and applicable Account contract terms, all properly
drawn and presented checks, negotiable orders of withdrawal, drafts, debits, and
withdrawal orders presented to Purchaser by mail, over the counter, through
electronic media, or through the check clearing system of the banking industry,
by depositors of the Transferred Accounts assumed by Purchaser hereunder,
whether drawn on checks, negotiable orders or withdrawal, drafts, or withdrawal
order forms provided by Purchaser or Seller; and (ii) in all other respects
discharge, in the usual course of the banking business, the duties and
obligations of Seller with respect to the balances due and owing to the
depositors whose Accounts are assumed by Purchaser hereunder; provided, however,
that any obligations of Purchaser pursuant to this Paragraph 9.1 to honor
checks, negotiable orders of withdrawal, drafts, and withdrawal orders on forms
provided by Seller and carrying its imprint (including its name and transit
routing number) shall not apply to any checks, drafts, withdrawal orders, or
returned items (i) presented to Purchaser more than two hundred ten (210) days
following the Closing Date, or (ii) on which a stop payment has been requested
by the deposit customer. Purchaser shall submit and file any required reports on
IRS Form 1099 with respect to interest accrued on Transferred Accounts after the
Closing Date. The provisions of this subsection 9.1 (a) shall in no way limit
Purchaser's duties or obligations arising under Paragraphs 1.3 and 1.4 hereof.
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(b) Purchaser shall, not earlier than ten days after the time of
procurement of all regulatory approvals required for consummation of the
transaction contemplated by this Agreement nor later than five days prior to the
Closing Date, notify all depositors of the Offices by letter, acceptable to
Seller, produced in, if appropriate, several similar, but different forms
calculated to provide necessary and specific information to the owners of
particular types of accounts, of Purchaser pending assumption of the Transferred
Accounts hereunder, and, in appropriate instances, notify depositors that on and
after the Closing Date certain Seller deposit-related services and/or Seller's
debit card and automatic teller machine services impacted by the transactions
contemplated by this Agreement, will be terminated. As an enclosure to such
notices, Purchaser may furnish appropriate depositors with brochures, forms and
other written materials related or necessary to the assumption of the Accounts
by Purchaser and the conversion of said accounts to Purchaser accounts,
including the provision of checks to appropriate depositors using the forms of
Purchaser with instructions to such depositors to utilize such Purchaser checks
on and after the Closing Date and thereafter to destroy any unused checks on
Seller's forms. The expenses of the printing, processing and mailing of such
letter notices and providing new Purchaser checks and other forms and written
materials to appropriate customers shall be borne by Purchaser. Before Closing,
except as provided in this paragraph, Purchaser will not contact Seller's
customers except as may occur in connection with advertising or solicitations
directed to the public generally or in the course of obtaining the requisite
regulatory approvals of the transaction. Anything to the contrary herein
notwithstanding, Purchaser shall provide, at no cost to Seller, any and all
notices, communications, and filings which may be required by law, regulation,
or otherwise, relating to any changes in terms and other matters relating to the
Accounts occurring subsequent to the Closing Date. Any and all such notices,
communications, and filings which may be required to be provided prior to the
Closing Date shall be submitted on a timely basis for review by Seller and shall
be subject to the written approval of Seller prior to delivery to any third
party. Purchaser shall provide, at its sole cost and expense and at no cost or
expense to Seller, that any and all customer and other notices, communications,
and filings provided by Purchaser hereunder, including the substance and timing
of same, fully comply with the requirements of applicable law and regulation.
(c) Purchaser shall promptly pay to Seller an amount equivalent to
the amount of any checks, negotiable orders of withdrawal, drafts, withdrawal
orders, or returned items (net of the applicable Deposit Premium paid by
Purchaser with respect to the Transferred Accounts represented by any such
instrument) credited as of the close of business on the Closing Date to an
Account assumed by Purchaser hereunder which are returned uncollected to Seller
after the Closing Date. The foregoing shall include an amount equivalent to
holds placed upon such deposit account for items cashed by Seller as of the
close of business on the Closing Date.
(d) Purchaser shall, not later than the close of business on the
business day immediately following the Closing Date, supply suitable
government-backed securities as security for any deposits of governmental units
included among the Transferred Accounts for which Seller had provided similar
security.
(e) Purchaser hereby grants to Seller and its contractors access
to the Branch
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Office until 8:00 A.M. local time on the day following the Transfer Date or such
other later date and time as the parties may agree, at no cost or expense to
Seller, for conduct of activities consistent with this Agreement in conjunction
with the transactions contemplated hereby.
(f) The duties and obligations of Buyer in this Paragraph 9.1
shall survive the Closing.
9.2 TRANSITIONAL ACTIONS BY SELLER. After the Closing, unless another
time is otherwise indicated:
(a) Seller shall use its best efforts to cooperate with Purchaser
in assuring an orderly transition of ownership of the Assets and responsibility
for the liabilities, including the Transferred Accounts, assumed by Purchaser
hereunder. Seller shall provide final statements as of the Closing Date, in
conjunction with appropriate Transferred Accounts, with interest and service
charges pro-rated to close of business on the Closing Date. Seller shall submit
and file any required reports on IRS Form 1099 with respect to interest paid on
Transferred Accounts through the Closing Date. Notwithstanding the limitations
contained in 9.1(b), Seller shall, prior to issuing any notices to its customers
or the general public regarding the transaction contemplated by this Agreement,
obtain the prior written consent of Purchaser with respect to the content of
such notices. Purchaser shall not contact Seller's customers until the earlier
of (i) Seller's written consent, or (ii) receipt of all regulatory approvals and
the passage of any waiting periods, and all conditions precedent to Purchaser's
obligations hereunder have either been satisfied or waived in writing by
Purchaser.
(b) Prior to the Closing Date, Seller shall cooperate with
Purchaser, at Purchaser's expense and at no expense to Seller, in making
Transferred Employees available at reasonable times for whatever program of
training Purchaser deems advisable; provided, however, that Purchaser shall
conduct such training program in a manner that does not materially interfere
with or prevent the performance of the normal duties and activities of such
Transferred Employees. Purchaser shall make request of Seller for training
opportunities prior to the Closing Date, and shall reimburse Seller at the
Closing for any and all costs relating to such training including, but not
limited to, regular and overtime salary for Transferred Employees involved in
training for the period of such training, travel costs, and all expenses
incurred by Seller or such Transferred Employees in conjunction with the
training. Such requests, which shall specify the time, duration and place of
such training, must be approved by Seller.
(c) Seller shall cooperate with Purchaser, at no expense to
Seller, to make provision for the installation of teller and platform equipment
in the Branch Office subject to approval by Seller; provided, however, that
Purchaser shall arrange for the installation and placement of such equipment at
such times and in a manner that does not significantly interfere with the normal
business activities and operation of Seller or the Branch Office.
(d) Seller shall resign as custodian of each XXX account
maintained at the Branch Office and assign the custodianship of such accounts to
Purchaser upon Closing subject to receipt of applicable customer consents and
other and analyze such provisions of this Agreement.
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(e) Seller shall terminate its ATM/debit card service effective as
of close of business on the business day preceding the Closing Date or such
other date and time as Seller and Purchaser may agree. Such terminations will be
preceded by the notice described in Paragraph 9.1(b) herein. Seller shall have
no obligation with respect to conversion or change over with respect to direct
deposit or payroll and retirement payments service relating to the Transferred
Accounts following the Closing and, further, Purchaser shall assume all
responsibility and liability with respect thereto following the Closing. Seller
will continue to redirect and/or pass through relevant ACH transactions on
Transferred Accounts for a period of two hundred ten (210) days following the
Closing Date.
(f) As of the opening of business on the first business day after
the Closing Date, Seller and Purchaser shall provide the appropriate Federal
Reserve Bank (the "FRB") with all information necessary in order to expedite the
clearing and sorting of all checks, drafts, instruments and other commercial
paper relative to the Transferred Accounts (hereinafter collectively referred to
as "Paper Items"). Purchaser shall bear all charges and costs imposed by the
Federal Reserve in connection with the reassignment of account number ranges for
sorting the Paper Items.
In the event the Federal Reserve and/or any other regional or
local clearinghouse for negotiable instruments fails, refuses or is unable to
direct sort such Paper Items for delivery to Purchaser with the result that such
Paper Items are presented to Seller, by not later than 3:00 p.m. local time on
each business day following the Closing and continuing for two hundred ten (210)
days after the Closing, Seller will make available to Purchaser for pick up from
Seller's offices or the offices of Seller's agent and/or processor at 00 Xxxx
Xxxx Xxxxxx, Xxxxxxx, Xxxxxxxx all of the Paper Items which are received by
Seller from the FRB and/or any regional or local clearinghouse during the
morning of each such business day on an "as-received basis." At the same xxxx
Xxxxxx shall also make available to Purchaser information and records, including
but not limited to systems printouts, concerning such Paper Items and concerning
incoming Automated Clearing House items ("ACH items") as well as outstanding
Automatic Teller Machine ("ATM") transactions. Such information and records,
including but not limited to systems printouts, will utilize the most recent
account number designated by Seller for each of the Transferred Accounts.
Purchaser shall initiate appropriate Notification of Change requests relating to
appropriate routing matters at the sole expense of Purchaser within 30 days
following the Closing Date. Each business day Seller will endeavor to see that
the sum of (a) the actual Paper Items provided to Purchaser plus (b) all ACH
items and ATM transactions captured by Seller in its information and records
balance with the sum of (c) the information and records, including but not
limited to systems printouts, provided by Seller relative to the Paper Items
plus (d) the information and records, including but not limited to systems
printouts, provided relative to the ACH items and ATM transactions affecting the
Transferred Accounts.
Except as otherwise expressly provided herein, Seller shall
provide the foregoing at no charge to Purchaser for a period not to exceed
thirty (30) days from the Closing Date except that Purchaser shall pay any
charges assessed to Seller by the FRB, a national or local clearinghouse and/or
Seller's agent and/or processor to the extent such assessments relate to the
Transferred
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Accounts ("Costs"). Purchaser shall be responsible for pick up of the data to be
provided by Seller and shall compensate Seller for activity subsequent to the
referenced 30 day period as follows: (i) $50.00 per day and Seller's Costs plus
ten (10%) percent thereof for days 31 through 60; (ii) $50.00 per day and
Seller's Costs plus fifteen (15%) percent thereof for days 61 through 120; and
(iii) $50.00 per day and Seller's Costs plus twenty-five (25%) percent thereof
for days 121 through 180. Any request for extension of the 180-day period shall
be submitted in writing by Purchaser to Seller not later than 10 business days
prior to the expiration of such 180-day period or any extensions thereof and
shall be subject to approval by Seller at its sole discretion. Fees for activity
subsequent to the 180 day period shall be as determined by Seller. Fees for
activity subsequent to the initial 30-day period shall be assessed on a daily
basis and included in the daily cash settlement.
Except as otherwise expressly provided herein, Purchaser shall be
responsible for processing any and all ACH returns, received subsequent to the
Closing, directly through the appropriate Federal Reserve Bank.
Seller and Purchaser shall arrange for appropriate daily
settlement between the parties in order that the transmission of all monies
associated with the matters set forth in this Paragraph 9.2(f) might be effected
promptly.
Seller shall not be liable to Purchaser for any failure to provide
the data required by this Paragraph 9.2(f) to the extent any such failure
results from causes beyond Seller's control including war, strike or other labor
disputes, acts of God, errors or failures of the FRB, and/or a participating
regional or local clearinghouse, or equipment failure or other emergency wherein
Seller and/or its agent processor has been unable to process in clearings from
the FRB or such clearinghouse.
(g) Seller shall, not earlier than the time of procurement of all
regulatory approvals required for consummation of the transaction contemplated
by this Agreement nor later than twenty days prior to the Closing Date, notify
all depositors of the Branch Office by letter acceptable to Purchaser, produced
in, if appropriate, several similar, but different forms calculated to provide
necessary and specific information to the owners of particular types of accounts
and/or loans, of Purchaser's pending assumption of the Transferred Accounts,
and, in appropriate instances, notify depositors that on and after the Closing
Date certain Seller deposit-related services and/or Seller's debit card and
automatic teller machine services, will be terminated. The expenses of the
printing, processing and mailing of such letter notices shall be borne by
Seller. Anything to the contrary herein notwithstanding, nothing in this
Agreement shall be deemed to constitute an assumption by Seller of the duties
and obligations of Purchaser with respect to the provision of applicable
notices, communications, and filings relating to changes in the terms of any
Transferred Accounts as set forth in this Agreement.
(h) The duties and obligations of the parties in this Paragraph
9.2 shall survive the Closing.
9.3 OVERDRAFTS AND TRANSITIONAL ACTION. Overdrafts on the Transferred
Accounts up to
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and including the date of Closing will be the responsibility and risk of Seller
and all fees associated therewith shall be the property of Seller. Overdrafts on
the Transferred Accounts after the date of Closing will be the responsibility
and risk of Purchaser and all fees associated therewith shall be the property of
Purchaser.
9.4 ATM'S AND DEBIT CARDS.
(a) In accordance with the provisions of Section 4.7 hereinabove,
Seller shall provide to Purchaser and/or Purchaser's data processor, a test tape
no later than sixty (60) days prior to the closing date and a production tape no
later than thirty (30) days prior to the closing date so that Purchaser may
produce AB or CCB ATM/Debit cards with the same PIN number as the customer is
currently utilizing for their ATM/Debit card transactions prior to Closing. Both
tapes shall include file formats and/or file layouts of all ATM/Debit card
information and all related custumer information. Seller shall further provide
any and all information and assistance required by Purchaser as are reasonable
and customary in conversions of the kind contemplated by this Agreement. In
addition, from the date that the production tape is produced until the Data
Processing Conversion, Seller shall maintain, make available and deliver to
Purchaser a manual log of all new/replacement cards issued, changes to existing
cards/PIN numbers, and other such data so that Purchaser may make similar manual
changes to cards being produced for customers to be used after the date of the
Data Processing Conversion. Upon the Data Processing Conversion, Seller's Data
Processor shall deactivate the operation of the Seller's ATM/Debit cards with
respect to the Transferred Accounts. Purchaser and Seller agree to settle, on a
daily basis, the net amount of ATM debits/credits associated with transferred
accounts until the conversion date. Seller shall provide all necessary
information and reports with respect to such ATM/Debit card activity on the
Transferred Accounts so that Purchaser may appropriately debit/credit the
Transferred Accounts for such ATM/Debit card activity and balance sais activity
to the General Ledger or Settlement Accounts.
(b (c) Purchaser and Seller agree to cooperate with each
other to assure that all transactions originated through the ATM or originated
with the ATM Cards prior to or on the Closing Date shall be for the account of
Seller and all transactions originated after the Closing Date shall be for the
account of Purchaser. A post closing adjustment shall be made to reflect all
such transactions, which cannot be reasonably calculated as of the Closing.
ARTICLE X
AMENDMENT; TERMINATION
10.1 AMENDMENT. This Agreement may be amended in writing at any time
with the mutual consent of the Board of Directors of Purchaser and Seller.
Purchaser and Seller hereby covenant that neither shall unreasonably take any
action or refuse to take any action, whether or not specifically or generally
contemplated as a part of this Agreement, wherein such action or non-action
would interfere with the accomplishment of the transaction contemplated by this
Agreement.
10.2 TERMINATION. This Agreement and the obligations created hereby
shall terminate in
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the event that any one or the following events occur: (i) the necessary
regulatory approvals have not been obtained prior December 1, 2000, (ii) by the
Board or Directors of Purchaser if any of the conditions provided in ARTICLE IV
herein shall not have satisfied, complied with or performed in any material
respect, and Purchaser shall not have waived such failure of satisfaction,
noncompliance or non-performance; or (iii) by the Board of Directors of Seller
if any of the conditions provided in ARTICLE V shall not have been satisfied,
complied with or performed in any material respect, and Seller shall not have
waived such failure of satisfaction, noncompliance or non-performance; or (iv)
the mutual agreement of the parties. Any material condition contained in the
approval of the transactions contemplated by this Agreement by the FDIC, FRB,
OBRE or the OTS will be subject to the consent of the Boards of Directors of
both Purchaser and Seller, as limited under the terms of this Agreement.
If termination of this Agreement shall be judicially determined to have
been caused by breach of this Agreement by either party, then, in addition to
other remedies at law or equity for breach of this Agreement, breaching party
shall indemnify the other party for its costs, fees and expenses of its counsel,
accountants and other experts and advisors as well as fees and expenses incident
to negotiation, preparation and execution of this Agreement in related actions.
If termination of this Agreement shall be judicially determined to have been
caused by breach of this Agreement by either party, then the breaching party
shall pay promptly, and in any event within ten (10) days of receipt of written
notice from the other party, to the other party TWO HUNDRED THOUSAND AND
NO/100THS ($200,000.00) DOLLARS plus the other party's costs, fees and expenses
of its counsel, accountants and other experts and advisors as well as fees and
expenses incident to negotiation, preparation and execution of this Agreement,
as liquidated damages.
Except as provided in the immediately preceding paragraph, if this
Agreement is terminated, for whatever reason, then (i) this Agreement shall
forthwith become void and of no effect and without liability to any party to
this Agreement; (ii) each party hereto shall pay all of its costs incurred by it
in the negotiation, preparation and execution of this Agreement and the
obtaining of the necessary approvals thereof, including fees and expenses of
legal counsel, accountants and other experts; and (iii) the parties shall
continue to be bound by the provisions of this Agreement which by their terms
are intended to be extended after termination of the Agreement and also by the
terms of that certain Confidentiality Agreement dated March 16, 2000 between the
parties (the "Confidentiality Agreement").
ARTICLE XI
MISCELLANEOUS
11.1 A. NON-SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
None of the representations or warranties and agreements in this Agreement or in
any instrument delivered pursuant to this Agreement shall survive the Closing
Date, except for the covenants and agreements, which by their terms are
contemplated to be performed after the Closing Date, including but not limited
to the Covenant not to Compete..
11.1 B. CLAIMS REGARDING THE TRANSFERRED ACCOUNTS. Notwithstanding
anything herein
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contained to the contrary it is agreed that all insurance coverage relating to
claims arising from Seller's administration of the Transferred Accounts prior to
the Closing Date shall, to the extent assignable, be assigned to Purchaser. To
the extent such insurance claims are either a) not transferable or b) not
otherwise covered by any insurance, then Seller agrees to indemnify, defend, and
hold Purchaser harmless from any losses, judgments, expenses, attorneys fees or
costs threatened or incurred by Purchaser as a result of such claims, provided,
however, that Seller shall not indemnify, defend or hold Purchaser harmless from
Purchaser's own negligence or willful misconduct.
11.2 NOTICES. All notices, requests, demands and other communications
hereunder shall be in writing and may be delivered via facsimile transmission,
overnight carrier or registered or certified mail postage prepaid. When notice
is given via facsimile transmission, it shall be conclusively deemed to have
been received on the date of transmittal provided the sender receives
confirmation of transmittal to the number set forth below. Notice given by
overnight carrier shall be conclusively deemed received on the date following
the date sent. Notice sent registered or certified mail, postage prepaid, shall
be conclusively deemed to have been received three (3) business days after its
deposit in the United States mail when sent to the other party at the received
address set forth below. Either party may change the address to which notice
shall be sent by giving written notice to the other party.
TO SELLER: Xx. Xxxx X. Xxxxxxx
Chairman of the Board and President
ARGO FEDERAL SAVINGS BANK, FSB
0000 Xxxx 00xx Xxxxxx
Xxxxxx, Xxxxxxxx 00000-0000
Facsimile No. (000) 000-0000
COPY TO: Xxxxx X. Xxxx, Xx.
XXXX & GRZELAKOWSKI, LTD.
0000 Xxxxxx Xxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
Facsimile No. (000) 000-0000
TO PURCHASER: Xxxxx X. Xxxxxxx
Chairman of the Board and CEO
Chicago Community Bank
0000 Xxxx 00xx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile No.(000) 000-0000
COPY TO: Xxxxxx X. Xxxxxxxx
Xxxxxx & Karcazes, Ltd.
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00 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Facsimile No. (000) 000-0000
11.3 SUCCESSORS AND ASSIGNS. All terms and provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective transferees, successors and assigns, but the Agreement may
not be assigned by either party without the written consent of the other.
11.4 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which taken together shall constitute one action and the
same instrument.
11.5 GOVERNING LAW. This Agreement is being delivered and is intended
to be performed in the State of Illinois and shall be construed and enforced in
accordance with the laws of the State of Illinois or the United States of
America, as applicable.
11.6 REMEDIES NOT EXCLUSIVE. No remedy conferred by any of the
specific provisions of this Agreement is intended to be exclusive of any other
remedy, and each and every remedy shall be cumulative and shall be in addition
to every other remedy given hereunder or now or hereafter existing at law or in
equity or by statute or otherwise. The election of any one or more remedies by
either of the parties shall not constitute a waiver of the right to pursue other
available remedies.
11.7 ASSIGNMENT. This Agreement shall not be assignable by either
party without the written consent of the other. Nothing in this Agreement,
expressed or implied, is intended to confer upon any person other than the
parties hereto and their successors and permitted assigns any right or remedy
under or by reason of this Agreement.
11.8 COSTS. All of the costs and expenses, including legal and
accounting fees attendant to this transaction, incurred by either party in
connection with this Agreement and the transactions contemplated hereby shall be
paid by the party incurring the same, except as provided herein upon termination
caused by breach by either party.
11.9 PARAGRAPH HEADINGS. The paragraph headings in this Agreement are
for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
11.10 GENDER, ETC. Words herein, regardless of the number and gender
specifically used, shall be deemed and construed to include any other number,
singular or plural and any other gender, masculine, feminine or neuter, as the
context requires.
11.11 ENTIRE AGREEMENT. This Agreement, along with the Confidentiality
Agreement, constitutes the entire agreement between Purchaser and Seller. There
are no written or oral
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agreements between Purchaser and Seller in connection with this Agreement that
are not set forth herein or in the exhibits attached hereto. This Agreement
supersedes and replaces any and all prior agreements between Purchaser and
Seller whether written or oral, except the Confidentiality Agreement.
11.12 SEVERABILITY. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions hereof or
the validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction; provided, however, that in the event the
invalid provision shall result in a material change in the terms or conditions
of this Agreement, the party against whom the provision affects may terminate
this Agreement; provided that such invalid or unenforceable provision(s) cannot
be replaced with a new provision which has the most nearly similar permitable
economic effect and which is acceptable to Purchaser and Seller.
11.13 RULE OF CONSTRUCTION. The language and all parts of this
Agreement shall in all cases be construed as a whole according to its fair
meaning, strictly neither for nor against any party hereto, and without
implication or presumption that the terms hereof shall be more strictly
construed against any party by reason of the rule of construction that a
document is to be construed more strictly against the person who prepared this
Agreement.
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as
of the date first above written.
ARGO FEDERAL SAVINGS BANK, FSB
BY:
-----------------------------------------
XXXX X. XXXXXXX
ATTEST: PRESIDENT
--------------------------- -----------------------------------------
SECRETARY XXXX X. XXXXXXX, INDIVIDUALLY
AS TO COVENANT NOT TO COMPETE
AT SECTIONS 7.4(A)-(C) HEREINABOVE
CHICAGO COMMUNITY BANK
BY:
-----------------------------------------
XXXXX X. XXXXXXX
CHAIRMAN OF THE BOARD AND CHIEF
EXECUTIVE OFFICER
ATTEST:
---------------------------
SECRETARY
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(BRIDGEVIEW)
BRANCH OFFICE
PURCHASE AGREEMENT
THIS BRANCH OFFICE PURCHASE AGREEMENT (Agreement) is made and entered
into this 18th day of August 2000, by and between XXXXXX BANK, an Illinois
banking corporation ("Purchaser"), an Illinois savings bank, and ARGO FEDERAL
SAVINGS BANK, FSB ("Seller"), a federally chartered savings bank.
RECITALS:
WHEREAS, Seller shall transfer to Purchaser, subject to the terms and
conditions of this Agreement, certain deposit accounts, including demand deposit
accounts, regular savings accounts, money market accounts, certificates of
deposit and negotiable order of withdrawal accounts attributable to its branch
office located at 0000 X. Xxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx, (the "Branch
Office") as more fully described herein;
WHEREAS, Purchaser shall acquire from Seller, subject to the terms and
conditions of this Agreement, certain deposit accounts, including demand deposit
accounts, regular savings accounts, money market accounts, certificates of
deposit and negotiable order of withdrawal accounts attributable to the Branch
Office, as more fully described herein;
WHEREAS, Purchaser has agreed to acquire and Seller has agreed to sell
certain of the furniture, fixtures and equipment at the Branch Office (the
"Assets"), as more fully described herein;
WHEREAS, Purchaser has agreed to assume the liabilities of Seller with
respect to the lease pertaining to the Branch Office premises, as more fully
described herein;
WHEREAS, Purchaser and Seller have determined that the transactions
contemplated by this Agreement are in the best interests of their respective
shareholders or members; and
WHEREAS, the transactions contemplated by this Agreement have been
approved by at least a two-thirds vote of the respective entire Boards of
Directors of Purchaser and Seller and each has authorized their appropriate
officers to execute and attest to this Agreement and to make application for and
to receive the necessary supervisory approvals of the subject transactions from
the Federal Deposit Insurance Corporation (the "FDIC"), the Office of Banks and
Real Estate of the State of Illinois (the "OBRE"), the Federal Reserve Bank of
Chicago (the "FRB") and the Office of Thrift Supervision (the "OTS"), to the
extent necessary.
NOW THEREFORE, in consideration of the premises and the mutual promises
herein made,
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and in consideration of the representations, warranties, covenants, terms and
conditions set forth herein, Purchaser and Seller hereby covenant and agree as
follows:
ARTICLE I
TRANSFER/ASSUMPTION OF ACCOUNTS, ASSETS AND LEASES
1.1 IDENTIFICATION OF ACCOUNTS BY OFFICE LOCATION. Seller shall
transfer to Purchaser certain of its deposit accounts, including demand deposit
accounts, regular savings accounts, money market accounts, certificates of
deposit, all public funds accounts and negotiable order of withdrawal accounts,
as more fully set forth and described in Paragraph 2 hereof (hereinafter
sometimes for convenience collectively referred to as the "Accounts" or the
"Transferred Accounts"); with the said Accounts generally originating at and
attributable to the Branch Office except that Seller shall not transfer to and
Purchaser shall not assume liability for any brokered accounts (deposits
originated by a third party other than the deposit-holder), Accounts owned by
affiliates, directors, officers and/or employees of Seller who do not work at
the Branch Office.
1.2 IDENTIFICATION OF TRANSFERRED ACCOUNTS BY EXHIBIT. Marked Schedule
1.2, attached hereto and specifically incorporated herein by this reference, is
a verified statement prepared and submitted in a form substantially similar in
format to previous reports tendered by Seller setting forth the identity of
holder, the type of account, account opening date, account maturity date,
principal balance (including accrued and credited interest of such account), and
interest rate payable on each of the Transferred Accounts as of July 31, 2000.
Seller shall also provide, or make available, to Purchaser such other account
information as may be required for legitimate business purposes. After the close
of business on the day preceding the Closing Date (as defined in Article VI
hereof), Seller hereby agrees to deliver to Purchaser a supplemental statement
verifying the information set forth in the preceding sentence together with such
information with respect to any new or additional accounts opened after August
1, 2000 on each of the Accounts to be transferred to Purchaser as of the date
three (3) days prior to the Closing Date (such 3-day period the "Gap Period") as
well as an identification of any accounts which were closed between the date of
the original Schedule 1.2 and Supplemental Schedule 1.2. A Post-closing Schedule
1.2 covering the Gap Period shall be delivered by Seller to Purchaser within ten
(10) days of the Closing Date. Any adjustment to the Purchase Price (as defined
in Paragraph 1.6) based upon a difference between the Supplemental Schedule 1.2
and the Post-Closing Schedule 1.2 shall be paid by a party to the other party
within five (5) business days following delivery of the Post-Closing Schedule
1.2 to Purchaser. The form and substance of the statements referenced in this
paragraph shall be to the reasonable satisfaction of Purchaser and shall include
such information as necessary to identify the ownership and total liability of
such Accounts. For the purposes of this Agreement any interest accrued on the
Transferred Accounts by Seller, but not due for payment as of the Closing Date,
shall be transferred to Purchaser in current funds pursuant to Paragraph 1.4
hereof, and Purchaser shall thereupon assume the liability therefor.
1.3 TRANSFER. Purchaser shall assume the liability for and thereafter
discharge, pay in full and perform all of Seller's obligations and duties
related to such Transferred Accounts as of the Closing Date subject to the terms
and conditions of this Agreement. Purchaser and Seller hereby
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agree that performance of this Agreement shall be subject to receipt of all
necessary regulatory approvals as set forth in this Agreement.
1.4 ASSUMPTION OF LIABILITY ON TRANSFERRED ACCOUNTS. Purchaser will
receive, for the assumption of liability on the Transferred Accounts (including
interest previously credited in accordance with the terms of the account and
interest accrued to the Closing Date), a cash payment at Closing equal to the
aggregate account balances of the Transferred Accounts and all interest accrued
on the Transferred Accounts but not due for payment or credited to the account
as of the Closing Date.
1.5 ACCOUNT HOLDERS. Each holder of a Transferred Account of Seller
shall, after the close of business on the Closing Date, automatically become a
holder of an Account in Purchaser, in a dollar amount equal to the withdraw able
value of the Account, Purchaser having assumed the liability for the Transferred
Accounts subject to the indemnification provisions contained herein and the
existing rights, delegations, assignments, appointments, powers of appointment
and privileges of the Account holders. Thereafter, each such account holder
shall be entitled to all of the rights and privileges of an account holder of
Purchaser, as prescribed by its Articles of Incorporation, Bylaws and account
rules and, when appropriate, be issued proper account documentation evidencing
such account in Purchaser. Purchaser shall continue to recognize the terms and
maturities of all of the transferred accounts as of the Closing Date until the
originally stated maturity date. Thereafter, such accounts shall be renewed upon
the terms of Purchaser for similar accounts. Purchaser shall be responsible for
all regulatory filings and for the issuance of Forms 1098 and 1099 for all
periods ending after the Closing Date. Seller shall be responsible for all
regulatory filings and for the issuance of forms 1098 and 1099 for all periods
prior to the Closing Date.
1.6 CONSIDERATION FOR TRANSFERRED ACCOUNTS. For and in consideration
of the transfer by Seller to Purchaser of the aggregate account balance of and
the accrued interest on the Transferred Accounts, Purchaser agrees to pay to
Seller on the Closing Date, a purchase price (the "Purchase Price" or "Deposit
Premium") equal to (a) eight and ninety-nine one hundredths percent (8.99%) on
the aggregate account balance of the core deposit Transferred Accounts and (b)
2% on the account balance of the public funds as defined in paragraph 1 and as
identified on the Schedules to Paragraph 1.2, SAID DEPOSIT PREMIUM ON PUBLIC
FUNDS TO BE PAID ON PUBLIC FUNDS NOT EXCEEDING A MAXIMUM OF $1,600,720. Any
public funds on deposit at the Branch Office in excess of $1,600,720 as of the
Closing Date shall be removed by Seller. The Purchase Price may be adjusted in
accordance with the provisions of Paragraph 1.2 hereof.
1.7 ACQUISITION OF FURNITURE, FIXTURES AND EQUIPMENT. Schedule 1.7,
attached hereto and specifically incorporated herein by this reference is a
preliminary schedule of the Assets presently located at the Branch Office, along
with said assets net book value as of July 31, 2000, which Seller agrees to
transfer to Purchaser at Closing for a price equal to the net book value thereof
as of the Closing Date. A final listing of specific items included in the Assets
and their then current net book value will be provided to Purchaser prior to the
Closing. Seller shall transfer its ownership of such Assets to Purchaser by a
duly authorized Xxxx of Sale. Such sale shall be "as is", and Seller makes no
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warranties whatsoever except those set forth herein at Paragraph 2.14.
1.8 ASSIGNMENT OF LEASE. Seller agrees to assign to Purchaser, and
Purchaser agrees to assume, all of Seller's rights and obligations under that
certain Lease Agreement dated June 29, 1999 by and between XXXXXX XXXXXXX, INC.
("XXXXXXX") as Lessor and Seller as Lessee (the "Lease"), a copy of which Lease
is attached hereto as Schedule 1.8. The parties understand that such assignment
is subject to the consent of XXXXXXX, and the parties agree to fully cooperate
with each other and with XXXXXXX in order to obtain such consent. Purchaser
agrees to fully and timely perform the obligations under the Lease and to
indemnify and hold Seller harmless from any obligations or liabilities arising
out of the Lease or the Leased Premises (as defined in the Lease) which accrued
after the Closing. Seller shall pay all Lease obligations to the Closing Date,
and shall be entitled to credit at Closing for prepaid rent and for its security
deposit. Notwithstanding anything contained herein to the contrary, Purchaser's
performance of its obligations hereunder is specifically conditioned on its
ability to procure an assignment of the Lease under the same terms and
conditions as are currently contained therein.
1.9 ASSIGNMENT OF CONTRACTS. Seller agrees to assign to Purchaser, and
Purchaser agrees to assume, subject to the terms hereof, all of Seller's rights
and obligations under the Contracts set forth in Schedule 1.9 (collectively, the
"Contracts"). Purchaser agrees to fully and timely perform the obligations under
such Contracts and to indemnify and hold Seller harmless from any obligations or
liabilities arising out of such Contracts which accrue after Closing. Seller
shall pay all obligations under such Contracts to the date of Closing, and shall
be entitled to credit at Closing for prepaid expenses in connection with the
Contracts.
1.10 MISCELLANEOUS. Notwithstanding anything herein which may be
construed to the contrary, it is understood between the parties that any and all
agreements, licenses and rights between Seller and the National Basketball
Association, the Chicago Bulls and/or the United Center, of Chicago, Illinois,
and any and all rights and obligations emanating therefrom, shall be the sole
property and responsibility of Seller. Seller and Purchaser acknowledge and
agree that the Goldtimers Club program maintained by Seller shall be included in
the Transferred Assets.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Purchaser the following statements of
Essential Facts, which are true and correct on the date of this Agreement and
which shall be true and correct on the Closing Date, and of each of which shall
constitute a condition precedent to Purchaser's obligations hereunder:
2.1 ORGANIZATION AND STANDING. Seller is a capital stock savings bank
duly organized and validly existing and in good standing under the laws of the
United States of America, and it has all corporate powers and certificates of
authority, licenses, permits and other documentation to own its property and to
carry on its business as it is now being conducted. The deposit accounts of
Seller,
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to the extent insurable, are insured by the FDIC Savings Association Insurance
Fund ("SAIF").
2.2 AUTHORITY. Seller has the full corporate power and authority to
enter into this Agreement and to carry out the transactions contemplated to be
carried out by it. This Agreement has been duly executed and delivered by Seller
and constitutes the legal, valid and binding obligation of Seller enforceable in
accordance with its terms.
2.3 NO MATERIAL CHANGE AFTER AGREEMENT. Until the transaction is
effective, Seller will conduct its operations related to the Branch Office and
to the Transferred Accounts hereunder in accordance with all applicable laws,
regulations, orders of regulatory authorities and in accordance with sound
business and past practices. Furthermore, between the date hereof and the
Closing provided for herein, unless otherwise agreed in writing, Seller shall
use its best efforts to maintain and preserve its business organization intact,
and to maintain its relationships and goodwill with the account holders,
employees and others having business relationships related to the Branch Office
and to the Accounts and the Assets which are the subject of this Agreement.
Seller will neither enter into nor materially amend any agreements related to
the operation of the Branch Office and will not offer a premium rate of interest
or increase its current deposit rates of interest to attract or maintain
deposits without the prior written consent of Purchaser, which consent may be
withheld by Purchaser in its sole discretion, nor artificially inflate the
aggregate account balances of the Transferred Accounts prior to Closing.
Notwithstanding anything contained herein to the contrary, Seller shall provide
Purchaser, on a weekly basis, with a report detailing new and renewed interest
bearing deposit accounts. Seller shall not invest in any Assets for the Branch
Office, except for replacements of furniture, furnishings and equipment and
normal maintenance made in the ordinary course of Branch Office business.
Notwithstanding the foregoing, Seller shall not make any expenditures in excess
of $10,000 for purchase or replacement of said assets without the written
consent of Purchaser, which consent shall not be unreasonably withheld. Seller
will not hire (other than to replace a departing employee and/or bring the
number of employees at the Branch Office to a normal staffing level), transfer,
reassign or terminate any employee of the Branch Office, increase the
compensation of any employee of the Branch Office, or promote any of the
employees of the Branch Office except pursuant to and consistent with Seller's
customary policies and procedures.
2.4 STANDSTILL. Seller will not, directly or indirectly, make,
encourage, facilitate, solicit, assist or initiate any inquiry, proposal or
offer to or by, or provide any information to or participate in any negotiations
with any other party related to a liquidation, consolidation, sale, purchase or
assumption related to the Branch Office or the Assets or the Accounts,
participate in any discussions or negotiations regarding the same, furnish any
information with respect to the same, assist or participate in, or facilitate in
any other manner any effort or attempt by any person to do or seek any of the
foregoing, or make any agreement with respect to or engage in any of the
foregoing anytime prior to December 31, 2000, unless this Agreement is
terminated prior to December 31, 2000.
2.5 LITIGATION. There are no claims, demands, orders, actions, suits,
proceedings or other litigation (nor does Seller know of any investigation
preliminary thereto) of any nature pending or to the knowledge of Seller
threatened against Seller, related to the Accounts, the Assets or the Branch
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Office, at law or in equity, before or by any Federal, State, municipal or other
court, governmental department, commission, board, bureau, agency or
instrumentality; there is no default existing or penalty incurred under any
agreement or obligation of or binding upon Seller nor is Seller aware of any
facts that could reasonably afford a basis for a cause of action against Seller.
2.6 BROKERS. Other than Xxxxx, Xxxxxxxx & Xxxxx, Inc. ("KBW"), whose
fees incurred as a result of this transaction shall be borne exclusively by
Seller, neither Seller nor any of its respective officers or directors has
retained or otherwise engaged or employed any broker, finder, or any other such
person or paid or agreed to pay any fee or commission to any agent, broker,
finder or other such person for or on account of this Agreement or the
transactions contemplated hereby.
2.7 ACCURACY OF STATEMENTS. Neither this Agreement nor any Schedule
hereto, statement, list, certificate or other information furnished or to be
furnished in writing by Seller to Purchaser in connection with this Agreement or
any of the transactions contemplated hereby contains or will contain an untrue
statement of a material fact or omits or will omit to state a material fact
necessary to make the statements contained herein or therein, taken as a whole
with all other such statements, lists, certificates or other information
furnished above in light of the circumstances in which they are made, not
misleading.
2.8 NO VIOLATION. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby will not violate or result
in a breach by Seller of, or constitute a default under, or conflict with, or
cause any acceleration of any obligation with respect to: any provision or
restriction of any charter, bylaw, loan or indenture of Seller or any provision
or restriction of any lien, lease agreement, contract, instrument, order,
judgment, award, decree, ordinance or regulation or any other restriction of any
kind or character to which any assets or properties of Seller are subject or by
which Seller is bound.
2.9 DISASTER PROVISION. The business and properties of the Branch
Office shall not have been adversely affected in any material way as a result of
any act of God, fire, flood, disturbance, or similar calamity.
2.10 MATERIAL CONTRACTS. Set forth in Schedule 1.9 is a listing and
description of all Contracts (whether written or oral) under which Seller is
obligated that relate to the Branch Office, and copies of such Contracts are
attached thereto.
2.11 NO DEFAULTS. The Lease and the Contract set forth in Schedule 1.8
and 1.9 are valid and in full force and effect. Seller has fulfilled and taken
all action reasonably necessary to enable it to fulfill when due all material
obligations under the Contracts; and there are no material defaults and no
events have occurred that, with the lapse of time or election of any other
party, will become material defaults by it under any of the Contracts.
2.12 ENVIRONMENTAL. To the best knowledge of Seller, the Branch Office
is not contaminated with any wastes or Hazardous Substances. "Hazardous
Substances" means any
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substance presently listed, defined, designated or classified as hazardous,
toxic, radioactive or dangerous, or otherwise regulated, under any Environmental
Law, whether by type or by quantity, including any such substance as a
component. "Hazardous Substances" include without limitation petroleum or any
derivative or byproduct thereof, asbestos radioactive material and
poly-chlorinated bi-phenyls.
2.13 SELLER'S BOARD OF DIRECTORS APPROVAL. Marked Schedule 2.13
attached hereto and specifically incorporated herein by this reference is a
certified copy of its Board of Directors' Resolution approving this transaction.
2.14 TITLE TO ASSETS. Seller has good and marketable title to the
Assets, free and clear of all liens, security interests, encumbrances or
restrictions on transfer.
2.15 DAMAGE TO ASSETS OR BRANCH OFFICE. There has been no damage,
destruction or loss (whether or not covered by insurance) to any of the Assets
set forth on Schedule 1.7 or the Branch Office.
2.16 CONDEMNATION. There are no pending or threatened condemnation
proceedings, suits or administrative actions relating to the Branch Office or
other matters materially and adversely affecting the current use, occupancy or
value thereof.
2.17 EMPLOYMENT. There are no employment agreements or collective
bargaining agreements that are binding upon Purchaser, nor any benefit packages
or benefits under which Purchaser will be obligated to any of the employees of
the Branch Office whether or not Purchaser hires any such employees of the
Branch Office.
2.18 TAXES. All taxes owed by Seller relating to the Branch Office, the
Accounts and the Assets have been paid.
2.19 LEASE. The Lease is legal, valid, binding, enforceable, and in
full force and effect and will continue to be legal, valid, binding,
enforceable, and in full force and effect on identical terms following the
consummation of the transactions contemplated hereby. No party to the Lease is
in breach or default, and no event has occurred which, with notice or lapse of
time, would constitute a breach or default or permit termination, modification
or acceleration thereunder. There are no disputes, oral agreements or
forbearance programs in effect as to the Lease. Seller has not assigned,
transferred, conveyed, mortgaged, deeded in trust or encumbered any interest in
the leasehold. There are no subleases, licenses, concessions, or other
agreements, written or oral, granting to any party or parties the right of use
or occupancy of any portion of the Branch Office, except as set forth in
Schedule 2.19.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PURCHASER.
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Purchaser represents and warrants to Seller the following statements of
Essential Facts, which are true and correct on the date of this Agreement and
which shall be true and correct on the Closing Date, and of each of which shall
constitute a condition precedent to Seller's obligations hereunder:
3.1 ORGANIZATION AND STANDING. Purchaser is an Illinois banking
corporation duly organized, validly existing and in good standing under the laws
of the State of Illinois, and it has all corporate powers and certificates of
authority, licenses, permits and other documentation to own its property and to
carry on its business as it is now being conducted. The deposit Accounts of
Purchaser, to the extent insurable, are insured by the FDIC.
3.2 AUTHORITY. Purchaser has the full corporate power and authority to
enter into this Agreement and to carry out the transactions contemplated to be
carried out by it. This Agreement has been duly executed and delivered by
Purchaser and constitutes the legal, valid and binding obligation or Purchaser,
enforceable in accordance with its terms.
3.3 PURCHASER'S BOARD OF DIRECTORS APPROVAL. Marked Schedule 3.3,
attached hereto and specifically incorporated herein by this reference is a
certified copy of its Board of Directors" Resolution approving this transaction.
3.4 BROKERS. Neither Purchaser nor any of its officers or directors
has retained or otherwise engaged or employed any broker, finder or any other
person or paid or agreed to pay any fee or commission to any agent, broker,
finder or other such person on account of this Agreement or the transaction
contemplated hereby.
3.5 REGULATORY APPLICATIONS. Purchaser shall prepare and submit for
filing, at no expense to Seller, any and all applications, filings, and
registrations with, and notifications to, all federal and state authorities
required on the part of Purchaser or any shareholder or affiliate of Purchaser
for the Acquisition to be consummated at the Closing as contemplated in ARTICLE
VI herein and for Purchaser to operate the Branch Office following the Closing.
Purchaser shall provide Seller with evidence to Seller's and Seller's counsel's
reasonable satisfaction of the filing of all such applications, filings and
registrations, all of which shall be made within sixty (60) days from the date
of this Agreement. Thereafter, Purchaser shall pursue all such applications,
filings, registrations, and notifications diligently and in good faith, and
shall file such supplements, amendments, and additional information in
connection therewith as may be reasonably necessary for the transactions
contemplated hereby to be consummated at such Closing and for Purchaser to
operate the Branch Office following the Closing. Purchaser shall deliver to
Seller evidence of the filing of each and all of such applications, filings,
registrations and notifications (except for any confidential portions thereof),
and any supplement, amendment or item of additional information in connection
therewith (except for any confidential portions thereof). Purchaser shall also
deliver to Seller a copy of each material notice, order, opinion and other item
of correspondence received by Purchaser from such federal and state authorities
(except for any confidential portions thereof) and shall advise Seller at
Seller's request, of developments and progress with respect to such matters.
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ARTICLE IV
CONDITIONS PRECEDENT TO PURCHASER'S OBLIGATIONS.
Unless the conditions are waived by Purchaser, all obligations of
Purchaser under this Agreement are subject to the fulfillment, prior to or at
the Closing, of each of the following conditions:
4.1 OPINION OF COUNSEL TO SELLER. Seller shall have delivered to
Purchaser an opinion, dated as of the Closing, of Xxxx & Xxxxxxxxxxxx, Ltd.,
counsel for Seller, as to the validity of the transaction, and such other
matters as Purchaser may reasonably request. Such opinion shall be in form and
substance satisfactory to Purchaser and its counsel.
4.2 Intentionally Deleted.
4.3 REGULATORY APPROVALS. Purchaser and Seller shall have obtained and
received all necessary consents and approvals of all regulatory agencies and
other authorities having jurisdiction over this transaction necessary to
complete the transactions contemplated by this Agreement upon such terms and
conditions, if any, as are satisfactory to Purchaser in its reasonable judgment,
all waiting periods shall have expired, and there shall have been no motion for
rehearing or appeal from such approval or commencement of any suit or action by
any governmental authority seeking to enjoin the transaction provided herein or
to obtain other relief with respect thereto.
4.4 REPRESENTATIONS AND WARRANTIES. The representations and warranties
contained herein and in the exhibits hereto delivered by Seller or on its behalf
to Purchaser pursuant to this Agreement shall have been true and correct as of
the date of this Agreement and shall be true and correct as of the Closing as
though made on the Closing Date and shall survive the Closing as defined at
Paragraph 6.1 hereof.
4.5 PERFORMANCE OF AGREEMENTS. Seller shall have in all material
respects performed all obligations and agreements and complied with all
covenants and conditions contained in this Agreement to be performed and
complied with by it on or prior to the Closing.
4.6 CORPORATE APPROVALS. All necessary corporate action on the part of
the directors of Seller adopting and approving this Agreement and approving the
transactions contemplated hereby shall have been taken.
4.7 CONSENT OF OTHER PERSONS.
(i) Purchaser and Seller shall have received the consent of
On-Line Financial Services, Inc. ("OLFSI"), Seller's data processor, to the
conversion by Purchaser of the Transferred Accounts to Flserv CIR, Inc.
(hereinafter referred to as "Purchaser DP") (the "Data Processing Conversion").
The Data Processing Conversion shall be completed within one hundred and eighty
(180) days after the Closing Date. OLFSI shall covenant and consent to provide
Purchaser and/or
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Purchaser DP all system documentation, file layouts and files on tape in a form
acceptable to Purchaser DP within sixty (60) days prior to the Closing Date and
provide any and all additional information and assistance to Purchaser and/or
Purchaser DP as are reasonable and customary in conversions of the kind
contemplated by this Agreement. All costs and fees customarily assessed by OLFSI
to Seller for such data processing services in connection with the Data
Processing Conversion shall be paid by Seller. Purchaser shall pay all costs and
fees assessed by Purchaser's DP for the Data Processing Conversion. In the event
that reports or services are required by Purchaser and/or Purchaser's DP from
OLFSI in order to complete the conversion, which are not customarily assessed by
OLFSI to Seller, the cost of said reports or services shall be paid by
Purchaser, up to a maximum of $35,000 for the three branches being purchased by
Purchaser or its affiliates from Seller, and any amount in excess of $35,000
shall be paid one-half by Purchaser and one-half by Seller.
(ii) To the extent that any other material lease, contract or
Agreement to which Seller is a party and which is related to the terms of this
Agreement shall require the consent of any other person to the transactions
contemplated herein, such consent shall have been obtained by the Closing Date;
provided, however, that Seller shall not make as a condition for the obtaining
of any such consent, any agreements or undertakings not approved by Purchaser.
4.8 LITIGATION. No suit, action or proceeding by any governmental
agency shall have been instituted or threatened seeking to (i) enjoin, restrain
or prohibit the consummation of the transactions contemplated by this Agreement
which would in the reasonable judgment of Purchaser make it inadvisable to
consummate such transactions, or to (ii) cause any of the transactions
contemplated by this Agreement to be rescinded following consummation, or (iii)
that would affect adversely the right of Purchaser to operate the Branch Office
as a Branch Office of Purchaser; and no court order shall have been entered in
any action or proceeding instituted by any other person which enjoins, restrains
or prohibits this Agreement or consummation of the transactions contemplated by
this Agreement. No statute, rule, regulation, order, injunction or decree shall
have been enacted, entered, promulgated or enforced by a governmental entity,
which prohibits, restricts or makes illegal consummation of the transactions
contemplated hereby.
4.9 PROCEEDINGS SATISFACTORY TO COUNSEL. All proceedings taken by
Seller and all instruments executed and delivered by Seller on or prior to the
close of business on the Closing Date, in connection with the transactions
herein contemplated shall be reasonably satisfactory in form and substance to
Purchaser and its counsel.
4.10 NO ADVERSE CHANGES. Between the date of this Agreement and the
Closing Date, the business of the Branch Office shall be conducted in the
ordinary course, consistent in all material respects with prudent banking
practices; there shall not have occurred any material adverse change or any
condition, event, circumstance, fact or occurrence that may be expected to
result in a material adverse change in the business of the Branch Office; and
the business and properties of the Branch Office shall be kept substantially
intact, including its present operations, physical facilities, working
conditions, and relationships with lessors, customers and employees.
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4.11 DUE DILIGENCE. Commencing within ten (10) business days after the
date of this Agreement, Purchaser shall commence a not greater than ten (10)
business day due diligence examination of the Branch Office, including the
Assets, Accounts, and all other contracts, agreements and/or documents related
to the transactions contemplated by this Agreement (the "Initial Investigation")
and if Purchaser decides not to proceed with the transaction contemplated by
this Agreement as a result of such investigation, Purchaser shall so advise
Seller in writing within such ten (10) day period. Purchaser's failure to notify
Seller as aforesaid shall constitute satisfaction with the condition of the
Transferred Assets. Seller shall provide Purchaser full cooperation, disclosure
and complete access to all aspects of the Branch Office, including, but not
limited to all books, records, contracts, commitments, correspondence, accounts,
reports, properties and assets and with the full and complete cooperation of
Seller, its officers, directors, agents and representatives at the Branch
Office. Commencing five (5) business days prior to Closing, Purchaser shall
commence a three (3)-business day due diligence examination (the "Subsequent
Investigation") consistent with the Initial Investigation. The due diligence
examinations contemplated hereby shall be conducted at the sole discretion of
Purchaser and Purchaser's right to terminate this Agreement as a result of the
Subsequent Investigation shall be based strictly upon the existence of a
material adverse change affecting the Transferred Assets which Seller cannot or
will not cure within a reasonable period of time. No investigation by Purchaser
shall affect the representations and warranties of Seller set forth herein.
4.12 OLFSI AGREEMENT. OLFSI and Purchaser shall have agreed to the fees
and expenses to be charged by OLFSI to Purchaser for data processing services to
be provided by OLFSI to Purchaser (other than conversion fees) following the
Closing and until completion of the Data Processing Conversion set forth in
Paragraph 4.7(i), provided that Purchaser shall agree to OLFSI's fees and
expenses so long as the same are reasonable and are acceptable to Purchaser.
OLFSI shall agree to provide Purchaser and Purchaser DP separate financial
information and data relative to the Branch Office, including but not limited to
(to the extent available) separate general ledger and trial balance reports
together with all other daily reporting to the Branch Office as reasonably
requested by Purchaser and/or Purchaser DP until the completion of the Data
Processing Conversion as more fully described in Paragraph 4.7(i). Seller and
OLFSI shall covenant to cooperate with Purchaser and Purchaser DP in all matters
during the account transition period and the Data Processing Conversion process.
4.13 CLOSING CERTIFICATE. Purchaser shall have received a certificate
signed by the President or another duly authorized officer of Seller and dated
as of the Closing Date, certifying in such detail as Purchaser may reasonably
request as to the fulfillment of the conditions to the obligations of Seller as
set forth in this Agreement.
4.14 SIMULTANEOUS CLOSINGS. Purchaser's and Seller's respective
obligations to complete the transaction contemplated by this Agreement is
contingent upon the simultaneous closing of the transaction between Seller and
Purchaser pursuant to written agreement ("Summit Agreement"), dated of even date
herewith, regarding Purchaser's acquisition of Seller's core deposits and assets
at Seller's branch office located at 0000 Xxxx 00xx Xxxxxx, Xxxxxx, Xxxxxxxx, as
more fully set forth in the
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Summit Agreement.
ARTICLE V
CONDITIONS PRECEDENT TO SELLER'S OBLIGATIONS.
Unless the conditions are waived by Seller, all obligations of Seller
under this Agreement are subject to the fulfillment, prior to or at the Closing,
of each of the following conditions:
5.1 OPINION OF COUNSEL TO PURCHASER. Purchaser shall have delivered to
Seller an opinion, dated as of the Closing, of Xxxxxx & Karcazes, Ltd., counsel
for Purchaser, as to the validity of the transaction, and such other matters as
Seller may reasonably request. Such opinion shall be in form and substance
satisfactory to Seller and its counsel.
5.2 REGULATORY APPROVALS. Purchaser and Seller shall have obtained and
received all necessary consents and approvals of all regulatory agencies and
other authorities having jurisdiction over this transaction necessary to
complete the transactions contemplated by this Agreement.
5.3 REPRESENTATIONS AND WARRANTIES. The representations and warranties
contained herein by Purchaser pursuant to this Agreement shall have been true
and correct as of the date of this Agreement and shall be true and correct at
the Closing as though made on the Closing Date and shall survive the Closing as
defined at Paragraph 6.1 of this Agreement.
5.4 PERFORMANCE OF AGREEMENTS. Purchaser shall have in all material
respects performed all obligations and agreements and complied with all
covenants and conditions contained in this Agreement to be performed and
complied with by it on or prior to the Closing.
5.5 CORPORATE APPROVALS. All other corporate action on the part of the
directors of Purchaser adopting and approving this Agreement and approving the
transactions contemplated hereby shall have been taken.
5.6 CONSENT OF OTHER PERSONS. Seller and Purchaser shall have received
the consent of XXXXXXX to the assignment of the Lease.
5.7 LITIGATION. No action or proceeding by any governmental agency
shall have been instituted or threatened which would enjoin, restrain or
prohibit the consummation of the transaction contemplated by this Agreement
which would in the reasonable judgment of Seller make it inadvisable to
consummate such transactions, and no court order shall have been entered in any
action or proceeding instituted by any other person which enjoins or prohibits
this Agreement or consummation of the transactions contemplated by this
Agreement.
5.8 PROCEEDINGS SATISFACTORY TO COUNSEL. All proceedings taken by
Purchaser and all instruments executed and delivered by Purchaser on or prior to
the close of business on the Closing Date, in connection with the transactions
herein contemplated, shall be reasonably satisfactory in form
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and substance to Seller and its counsel.
5.9 CLOSING CERTIFICATE. Seller shall have received a certificate
signed by the President or another duly authorized officer of Purchaser and
dated as of the Closing Date, certifying in such detail as Seller may reasonably
request as to the fulfillment of the conditions to the obligations of Purchaser
as set forth in this Agreement.
ARTICLE VI
THE CLOSING, EFFECTIVE AND TRANSFER DATES.
6.1 CLOSING DATE. The Closing of this transaction shall be after the
close of business on November 17, 2000 at the Branch Office or such other
location as shall be mutually agreed by the parties. Either Purchaser or Seller
shall be entitled to extend the Closing Date for up to forty-five (45) days to
a mutually agreeable date if the requesting party notifies the other party in
writing on or before October 17, 2000. Further, in the event that all the
necessary regulatory approvals have not been received thirty (30) days prior to
November 17, 2000, Closing will take place as soon as practical but not later
than thirty (30) days after receipt of all regulatory approvals and the
expiration of all notice periods. Whenever the term "Closing" or "Closing Date"
or similar term is used in this Agreement, it shall be deemed to be a reference
thereto. Seller shall advise Purchaser of the exact time and location of the
Closing in accordance with the foregoing.
6.2 Intentionally Deleted.
6.3 TRANSFER DATE. The Transfer Date shall be the first business day
(excluding Saturday and Sunday) following the Closing Date. At noon or earlier
on the Transfer Date, Seller shall pay to Purchaser, by wire transfer or by
transfer of immediately available funds, the net amount calculated pursuant to
Paragraphs 1.4, 1.6, 1.7, 1.8 and 6.4 hereof, as of Seller's close of business
on the Closing Date.
6.4 PRORATIONS. All prorations, including but not limited to SAIF
premiums with respect to the Transferred Accounts, Lease obligations, prepaid
expenses recorded on the books of Seller incurred in the ordinary course of
Branch Office business, and utilities, shall be prorated as of the Closing,
unless otherwise set forth in this Agreement or otherwise agreed by the parties.
Purchaser shall be solely responsible for any fees, charges or assessments
imposed by the FDIC as a result of the transfer of the Transferral Accounts from
SAIF to the Bank Insurance Fund ("BIF").
6.5 SELLER'S ACTIONS AT CLOSING. At the Closing Seller shall, with
respect to the Branch Office:
(a) deliver to Purchaser at the Branch Office such of the Assets
purchased hereunder as shall be capable of physical delivery;
(b) execute, acknowledge and deliver to Purchaser all assignments,
bills of sale,
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and other instruments of conveyance, assignment, and transfer as shall
reasonably be necessary or advisable to consummate the sale, assignment, and
transfer of the Assets sold or assigned to Purchaser; the originals of all
blueprints, construction plans and specifications, which are now in Seller's
possession or which Seller has reasonable access to; and such other documents or
instruments as may be reasonably required by Purchaser, required by other
provisions of this Agreement, or reasonably necessary to effectuate the Closing;
(c) execute, acknowledge and deliver to Purchaser a duly executed
and recordable assignment to Purchaser of the Lease and a consent to assignment
from XXXXXXX of the Lease all in a form reasonably satisfactory to Purchaser;
(d) assign, transfer, and make available to Purchaser such of the
following records as exist and are available and maintained at the Branch Office
(in whatever form or medium then maintained by Seller) pertaining to the
Accounts including but not limited to:
(i) signature cards and XXX plan and account documents; and
(ii) other orders, contracts, and agreements between Seller
and depositors of the Branch Office and records of similar character including
without limitation, data processing media, account histories and fiche records
(upon Purchaser's request, reasonably made, Seller will provide reasonable
assistance to Purchaser in locating the information described in this
sub-paragraph (ii)); and
(iii) a trial balance listing of records of Accounts.
(e) execute, acknowledge and deliver to Purchaser all Certificates
and other documents required to be delivered to Purchaser by Seller at the
Closing pursuant to the terms of this Agreement; and
(f) assign Purchaser all Seller's rights in and to the Contracts
which are assignable.
6.6 PURCHASER'S ACTIONS AT THE CLOSING. At the Closing (unless another
time is specifically stated in ARTICLE VI hereof), Purchaser shall, with respect
to the Branch Office:
(a) execute, acknowledge, and deliver to Seller, to evidence the
assumption of the liabilities and obligations of Seller by Purchaser hereunder,
an instrument of assumption in a form reasonably satisfactory to Seller, and
Seller shall then accept, execute, and acknowledge such instrument. Copies of
such instrument may be recorded in the public records at the option of either
party hereto. The execution and acknowledgment of such instrument shall not be
deemed to be a waiver of any rights or obligations of any party to this
Agreement;
(b) receive, accept and acknowledge delivery of all Assets, and
all records and
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documentation relating thereto, sold, assigned, transferred, conveyed or
delivered to Purchaser by Seller hereunder;
(c) execute and deliver to Seller such written receipts for the
Assets, properties, records, and other materials assigned, transferred,
conveyed, or delivered to Purchaser hereunder as Seller may reasonably have
requested at or before the Closing;
(d) execute, acknowledge and deliver to Seller all Certificates
and other documents required to be delivered to Seller by Purchaser at the
Closing pursuant to the terms hereof; and
(e) execute, acknowledge and deliver to Seller an agreement
wherein Purchaser assumes obligations with respect to the Lease and Contracts
and the IRA's for all periods following the Closing Date with respect thereto.
ARTICLE VII
ACTIONS RESPECTING EMPLOYEES AND PENSIONS
AND EMPLOYEE BENEFIT PLANS.
7.1 EMPLOYMENT OF EMPLOYEES.
(a) Purchaser shall extend offers of employment, as of the Closing
Date, to such employees of the Branch Office listed in Schedule 7.1(a) attached
hereto and incorporated herein, which schedule shall include the names of each
employee, their date of employment, salary, type of health plan coverage,
including single or family coverage, number of dependents and portion of premium
paid by employee, and any applicable severance plan as may be employed by Seller
at the Branch Office as of the Closing Date (including, without limitation,
those employees who on the Closing Date are on family and medical leave,
military leave, or personal or pregnancy leave and who elect to return to work
not later than one (1) year following the Closing Date; individually and
collectively the "Leave Employees" herein) for positions entailing
responsibilities in effect at Seller as of the Closing Date, and for a base
salary not less than that paid by Seller as of the Closing Date. Employees
accepting employment with Purchaser, including but not limited to the Leave
Employees, are referred to herein individually and collectively as the
"Transferred Employees." In the event that Purchaser shall transfer (except in a
comparable position and for comparable compensation to an office not more than
35 miles from the Branch Office at which the Transferred Employee is employed as
of the Closing Date, or at the request of the Transferred Employee), terminate
employment of, or reduce the base salary of, a Transferred Employee (the
"Terminated Employee") between the Closing Date and the date which is one (1)
year from the Closing Date, other than for cause, Purchaser shall pay to the
Terminated Employee a sum equal to the greater of that which the Terminated
Employee would have received on the date of such transfer, termination, or
reduction in salary under the severance plan of Seller applicable to the
Terminated Employee as of the date hereof and set forth in Schedule 7.1 or the
severance plan of Purchaser otherwise applicable to the Terminated Employee as
of the date of such transfer, termination, or reduction in base salary. Such
payment shall be due
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and owing the Terminated Employee on the date of such transfer, termination, or
reduction in salary. Nothing contained in this Agreement shall restrict or
prohibit Purchaser and any Transferred Employee from entering into an agreement
satisfactory to both Purchaser and the Transferred Employee providing for
resolution of matters set forth in this section.
(b) Seller will cooperate with Purchaser, to the extent reasonably
requested and legally permissible, to provide Purchaser with information about
the employees of the Branch Office including, without limitation, providing
Purchaser with the personnel files of those employees of the Branch Office who
provide Seller with their written consent thereto, and a means to meet with the
subject employees. Purchaser hereby agrees to indemnify and to hold Seller and
its affiliates and its and their officers, directors, agents, and employees
harmless from and against any and all liability, loss, cost, and expense,
however arising, as a result of release of information and/or files concerning
the referenced employees.
7.2 TERMS AND CONDITIONS OF EMPLOYMENT. Except as otherwise provided
explicitly in this Agreement, the terms of employment for each Transferred
Employee shall be determined solely by Purchaser's policies, procedures, and
programs; provided, however, that Purchaser agrees that each Transferred
Employee shall be provided employment subject to the following terms and
conditions:
(a) Base salary shall be at least equivalent to the rate of base
salary paid by Seller to such Transferred Employee as of the
close of business on the day prior to the Closing Date.
(b) Except as otherwise specifically provided herein, Transferred
Employees shall be provided employee benefits that are no less favorable in the
aggregate than those provided to similarly situated employees of Purchaser.
Purchaser shall provide such Transferred Employees with credit for the
Transferred Employee's period of service with Seller (including any service
credited from predecessors by merger or acquisition to Seller) towards the
calculation of eligibility and vesting for such purposes as vacation, sick days,
personal days, severance and other benefits, and participation and vesting in
Purchaser's qualified pension and/or profit sharing 401 (k) plans, as such plans
may exist (but not for purposes of funding of accrued pension or profit sharing
plans for such Transferred Employees with respect to any period prior to the
Closing Date).
(c) Each Transferred Employee currently participating in Seller's
medical, dental, health, health or other welfare plan, shall be eligible to
participate in the medical, dental, or other welfare plans of Purchaser, as such
plans may exist, on and after the Closing Date, and any pre-existing conditions
provisions of such plans shall be waived with respect to any such Transferred
Employees.
(d) With respect to any Transferred Employee who is also a Leave
Employee, upon conclusion of his or her short-term disability or temporary leave
of absence, subject to the terms and conditions of the Purchaser's plans and
policies and applicable law, each Transferred Employee
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on such leave shall receive the salary and vacation benefits in effect when he
or she went on leave, shall otherwise be treated as a Transferred Employee, and,
to the extent practicable, shall be offered by the Purchaser the same or a
substantially equivalent position to his or her position with Seller prior to
having gone on leave.
(e) Except as provided herein, Seller shall pay, discharge, and be
responsible for (i) all salary and wages arising out of employment of the
Transferred Employees through the Closing Date, and (ii) any employee benefits
arising under Seller's employee benefit plans and employee programs prior to the
Closing Date (but not including sick days and personal days accrued but unused
by the Transferred Employee through the Closing Date and medical benefits, if
any, to Transferred Employees who retire after the Closing Date), including
benefits with respect to claims incurred prior to the Closing Date but reported
after the Closing Date and benefits inuring to Leave Employees prior to any
election by such Leave Employees to return to work with Purchaser. From and
after the Closing Date, Purchaser shall pay, discharge, and be responsible for
all salary, wages, and benefits arising out of or relating to the employment of
the Transferred Employees by Purchaser from and after the Closing Date,
including, without limitation, all claims for welfare benefits plans incurred on
or after the Closing Date. Claims are incurred as of the date services are
provided notwithstanding when the injury or illness may have occurred. To the
extent permitted under Purchaser's applicable 401 (k) plan, Seller and Purchaser
shall cooperate in arranging for the transfer to Purchaser's 401 (k) plan, as
soon as practicable after the Closing Date and in a manner that satisfies
sections 414(1) and 411 (d)(6) of the Internal Revenue Code, as amended, of
those accounts held under Seller's 401 (k) plan on behalf of Transferred
Employees.
7.3 COMPLIANCE WITH LAW. Purchaser agrees that it shall comply with
any and all applicable requirements, if any, under the Worker Adjustment and
Retraining Notification Act in connection with the transaction contemplated by
this Agreement. Purchaser hereby agrees to indemnify and to hold Seller and its
affiliates and its and their officers, directors, agents, and employees harmless
from and against any and all liability, loss, cost, and expense, however
arising, as a result of the failure of Purchaser to comply with its obligations
as set forth in this section.
7.4 ACTIONS TO BE TAKEN BY SELLER. Seller covenants to Purchaser that
it will do or cause the following to occur:
(a) COVENANT NOT TO COMPETE. Seller [and Xxxx X. Xxxxxxx,
individually] shall not, directly or indirectly, by or through any of its
directors, officers, employees, agents or subsidiaries, solicit deposits, market
any of its financial services (except for the existing mortgage and mortgage
purchase and resale business it currently operates under the name of "Xxxxx
Financial Services", hereinafter "Xxxxx") or engage in any retail banking or
provide financial services that are in direct competition with the business of
Purchaser, for a period of five (5) years within the Market Area of the Branch
whose business is being transferred under this Agreement [Market Area being
defined for the purposes of this Agreement to be within a radius of ten (10)
miles from 0000 X. Xxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx]; EXCEPT that any area
within said ten mile radius which falls west of I-294 and north of I-55 and
South of I-88, shall be deemed to be outside of the Market Area for the
purposes
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of this Covenant not to Compete. Notwithstanding the foregoing it is understood
and agreed that Seller shall change its name to "Umbrellabank" or
"Xxxxxxxxxxxx.xxx" or such other name which is not similar to "Argo" as soon
after the Closing of this transaction as the required regulatory approvals for
such a name change can be secured [Seller shall apply for said approval(s)
within thirty (30) days after the closing and provide Purchaser with evidence of
said application] and to continue to provide banking and related services
outside of the Market Area and conduct an electronic banking business under the
name of "Xxxxxxxxxxxx.xxx" both within and outside of the Market Area and that
said electronic banking business shall be exempt from the provisions of this
Covenant not to Compete PROVIDED that the marketing of said Xxxxxxxxxxxx.xxx's
services shall not be specifically targeted to the Market Area or the customers
of Seller whose accounts are being transferred to Purchaser under this Agreement
and that the name of "Argo Federal Savings Bank" is not used in connection with
any marketing of Xxxxxxxxxxxx.xxx's or Seller's services in the Market Area
during the term of this Covenant not to Compete (except to the extent that
banking regulations require the screen on Seller's Automated Teller Machines
("ATM's") to identify Umbrellabank as a "division of Argo Federal Savings Bank"
or to otherwise comply with banking regulations). Seller shall not install any
ATM's within the Market Area (as defined hereinabove) during the term of this
Covenant, except that in the event that Seller is obligated under any existing
(or future) contracts to install ATMs within the Market Area during the term of
the Covenant not to Compete, Purchaser shall have a right of first refusal to
license each such additional ATM installed, such right of first refusal to be
expressly exercised by Purchaser in a writing delivered to Seller within ten
(10) days of receipt of written notice thereof by Seller. If Purchaser exercises
said right of first refusal, Purchaser shall reimburse Seller for Seller's costs
of installing said ATM, including the cost of the ATM, labor and installation
charges and signage [the design and content of said signage to be reasonably
acceptable to Purchaser], and shall pay a monthly fee to the Seller based on
transaction volume at the rate of twenty ($0.20) cents per transaction. If
Purchaser declines to exercise said right of first refusal as provided herein,
Seller shall have the right to install such ATM(s) subject to the restrictions
contained herein concerning the use of the name "Argo" on said ATM(s).
Notwithstanding the provisions contained herein to the contrary, it is
understood that Seller shall continue to operate its existing branches located
at 00000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx, 0000 Xxxx Xxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx, 00 Xxxx Xxxx Xxxxxx, Xxxxxxx, Xxxxxxxx (to the extent that said branch
is not sold to an affiliate of Purchaser) and at site to be located within a one
(1) mile radius of the intersection of Chicago Avenue and Halsted Street in
Chicago, Illinois or any other location outside the Market Area, under its
existing name until the name change referred to hereinabove shall be approved
(and thereafter under its name as so changed) and that the continued operation
of said branches by Seller shall not constitute a breach of the Covenant not to
Compete provided that the services of said branches shall not be specifically
targeted to the Market Area or the customers of Seller whose accounts are being
transferred to Purchaser under this Agreement. In addition, it is agreed that
Seller may maintain its corporate offices and the office of "Xxxxx" at their
present location at 0000 Xxxxxx Xxxx, Xxxxxx, Xxxxxxxx subject to the
restrictions contained in this Covenant not to Compete.
It is further agreed that in the event that Seller, or any entity in
which Xxxx X. Xxxxxxx
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(hereinafter "Xxxxxxx") is an officer, director or employee, shall seek to
acquire any financial institution which is located outside of the Market Area
during the term of this Covenant not to Compete, but which institution has a
branch located within the Market Area, Purchaser shall have a right of first
refusal with respect to any such branch(es) as may be located within the Market
Area, to be exercised by Purchaser in writing within thirty (30) days after
receiving written notice from Seller and/or Xxxxxxx, which notice shall contain
all of the terms and conditions of said proposed acquisition and the usual and
customary information and opportunity required by a Purchaser to conduct due
diligence.
(b) ENFORCEABILITY. The parties believe that the restrictive covenants
contained in this paragraph are reasonable. However, if any court of competent
jurisdiction subsequently holds these restrictions to be unreasonable, whether
as to scope, territory, or period of time specified herein, such scope,
territory, or period of time shall be deemed to be that which the court shall
declare or deem to be reasonable.
(c) INJUNCTIVE RELIEF. Seller recognizes that Purchaser may suffer
irreparable damage if the terms of this restrictive covenant are violated, and
that it will be difficult, if not impossible, to compute Purchaser's actual
damages resulting from such unauthorized competition. The parties therefore
agree that Purchaser may apply to a court of competent jurisdiction to enjoin
any threatened or actual breach of the covenants contained herein, and that the
prevailing party in any ensuing action shall be entitled to recover its
reasonable expenses, including court costs and reasonable attorney's fees.
(d) SOLICITATION OF TRANSFERRED EMPLOYEES. Except with the written
consent of Purchaser, for a period of eighteen (18) months following the Closing
Date, Seller will not, directly or indirectly, solicit Transferred Employees as
prospective officers or employees of Seller; provided, however, that Seller
shall not be prohibited or restricted from hiring a Transferred Employee if such
Transferred Employee is terminated by Purchaser. Notwithstanding anything herein
to the contrary, it is agreed that any transferred Employee who is hired by
Seller after the Closing Date, shall be bound by the terms of the Covenant not
to Compete herein above set forth by virtue of their employment by Seller.
(e) EMPLOYEE BENEFIT PROGRAMS. Seller's obligations to employees of the
Branch Office, including Transferred Employees, will be as set forth in
established policies of Seller, and Seller shall continue its employee benefit
programs in full force and effect as benefit programs for Transferred Employees
through the Closing Date. After the Closing, Seller shall retain the
responsibility and liability for the funding and payment of all claims incurred
under such employee benefit programs through the Closing Date. Purchaser shall
have no obligation or liability to compensate Transferred Employees for benefits
of any kind earned, accrued, promised and/or provided to Transferred Employees
as employees of Seller, except with respect to eligibility and vesting as set
forth in Paragraph 7.2 above.
(f) EMPLOYEES OF THE BRANCH OFFICE. Seller shall not, without
Purchaser's prior written
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consent (i) increase the aggregate full-time equivalent size of the work force
at the Branch Office above the aggregate normal staffing levels designated by
Seller for the Branch Office at the date hereof, (ii) terminate any Transferred
Employee prior to the Closing Date, unless such person is terminated for cause
as determined at the sole discretion of Seller or otherwise pursuant to existing
Seller policies or procedures, or (iii) increase the compensation of any
Transferred Employee except pursuant to existing Seller policies and procedures.
The obligations of Seller and Purchaser pursuant to this ARTICLE VII
shall survive the Closing.
ARTICLE VIII
ADDITIONAL AGREEMENTS
8.1 COOPERATION. Purchaser and Seller further covenant and agree that
each shall cooperate in expeditiously obtaining all necessary or appropriate
governmental approvals, consents or permits and in preparing any and all
applications contemplated by this Agreement, and will furnish such supporting
information or exhibits as may be required, and will not do, sanction or
knowingly permit any person under the control of each to do anything which might
in any way hinder, delay or prevent the expeditious approval of the transactions
contemplated by this Agreement or the orderly transition of Seller's customers
to Purchaser, or commit any act or omission which might be reasonably expected
to have such an effect.
8.2 CONFIDENTIALITY. Purchaser and Seller each agree to keep
confidential all information, documents, books, records and any other material
no matter how obtained from the other party hereto unless and until the
transaction contemplated herein is consummated, and if such transaction is not
consummated, each party hereto will return or cause to be returned to the
applicable party all such documents, material and information then in its
possession, or the possession of a representative of either, and neither party
hereto will divulge or use such information until it becomes known generally to
the public.
ARTICLE IX
TRANSITIONAL MATTERS
9.1 TRANSITIONAL ACTION BY PURCHASER. After the Closing, unless
another time is otherwise indicated:
(a) Purchaser shall: (i) pay in accordance with the law and
customary banking practices and applicable Account contract terms, all properly
drawn and presented checks, negotiable orders of withdrawal, drafts, debits, and
withdrawal orders presented to Purchaser by mail, over the counter, through
electronic media, or through the check clearing system of the banking industry,
by depositors of the Transferred Accounts assumed by Purchaser hereunder,
whether drawn on checks, negotiable orders or withdrawal, drafts, or withdrawal
order forms provided by Purchaser or Seller; and (ii) in all other respects
discharge, in the usual course of the banking business, the duties and
obligations of Seller with respect to the balances due and owing to the
depositors whose Accounts
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are assumed by Purchaser hereunder; provided, however, that any obligations of
Purchaser pursuant to this Paragraph 9.1 to honor checks, negotiable orders of
withdrawal, drafts, and withdrawal orders on forms provided by Seller and
carrying its imprint (including its name and transit routing number) shall not
apply to any checks, drafts, withdrawal orders, or returned items (i) presented
to Purchaser more than two hundred ten (210) days following the Closing Date, or
(ii) on which a stop payment has been requested by the deposit customer.
Purchaser shall submit and file any required reports on IRS Form 1099 with
respect to interest accrued on Transferred Accounts after the Closing Date. The
provisions of this subsection 9.1 (a) shall in no way limit Purchaser's duties
or obligations arising under Paragraphs 1.3 and 1.4 hereof.
(b) Purchaser shall, not earlier than ten days after the time of
procurement of all regulatory approvals required for consummation of the
transaction contemplated by this Agreement nor later than five days prior to the
Closing Date, notify all depositors of the Offices by letter, acceptable to
Seller, produced in, if appropriate, several similar, but different forms
calculated to provide necessary and specific information to the owners of
particular types of accounts, of Purchaser pending assumption of the Transferred
Accounts hereunder, and, in appropriate instances, notify depositors that on and
after the Closing Date certain Seller deposit-related services and/or Seller's
debit card and automatic teller machine services impacted by the transactions
contemplated by this Agreement, will be terminated. As an enclosure to such
notices, Purchaser may furnish appropriate depositors with brochures, forms and
other written materials related or necessary to the assumption of the Accounts
by Purchaser and the conversion of said accounts to Purchaser accounts,
including the provision of checks to appropriate depositors using the forms of
Purchaser with instructions to such depositors to utilize such Purchaser checks
on and after the Closing Date and thereafter to destroy any unused checks on
Seller's forms. The expenses of the printing, processing and mailing of such
letter notices and providing new Purchaser checks and other forms and written
materials to appropriate customers shall be borne by Purchaser. Before Closing,
except as provided in this paragraph, Purchaser will not contact Seller's
customers except as may occur in connection with advertising or solicitations
directed to the public generally or in the course of obtaining the requisite
regulatory approvals of the transaction. Anything to the contrary herein
notwithstanding, Purchaser shall provide, at no cost to Seller, any and all
notices, communications, and filings which may be required by law, regulation,
or otherwise, relating to any changes in terms and other matters relating to the
Accounts occurring subsequent to the Closing Date. Any and all such notices,
communications, and filings which may be required to be provided prior to the
Closing Date shall be submitted on a timely basis for review by Seller and shall
be subject to the written approval of Seller prior to delivery to any third
party. Purchaser shall provide, at its sole cost and expense and at no cost or
expense to Seller, that any and all customer and other notices, communications,
and filings provided by Purchaser hereunder, including the substance and timing
of same, fully comply with the requirements of applicable law and regulation.
(c) Purchaser shall promptly pay to Seller an amount equivalent to
the amount of any checks, negotiable orders of withdrawal, drafts, withdrawal
orders, or returned items (net of the applicable Deposit Premium paid by
Purchaser with respect to the Transferred Accounts represented by any such
instrument) credited as of the close of business on the Closing Date to an
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Account assumed by Purchaser hereunder which are returned uncollected to Seller
after the Closing Date. The foregoing shall include an amount equivalent to
holds placed upon such deposit account for items cashed by Seller as of the
close of business on the Closing Date.
(d) Purchaser shall, not later than the close of business on the
business day immediately following the Closing Date, supply suitable
government-backed securities as security for any deposits of governmental units
included among the Transferred Accounts for which Seller had provided similar
security.
(e) Purchaser hereby grants to Seller and its contractors access
to the Branch Office until 8:00 A.M. local time on the day following the
Transfer Date or such other later date and time as the parties may agree, at no
cost or expense to Seller, for conduct of activities consistent with this
Agreement in conjunction with the transactions contemplated hereby.
(f) The duties and obligations of Buyer in this Paragraph 9.1
shall survive the Closing.
9.2 TRANSITIONAL ACTIONS BY SELLER. After the Closing, unless another
time is otherwise indicated:
(a) Seller shall use its best efforts to cooperate with Purchaser
in assuring an orderly transition of ownership of the Assets and responsibility
for the liabilities, including the Transferred Accounts, assumed by Purchaser
hereunder. Seller shall provide final statements as of the Closing Date, in
conjunction with appropriate Transferred Accounts, with interest and service
charges pro-rated to close of business on the Closing Date. Seller shall submit
and file any required reports on IRS Form 1099 with respect to interest paid on
Transferred Accounts through the Closing Date. Notwithstanding the limitations
contained in 9.1(b), Seller shall, prior to issuing any notices to its customers
or the general public regarding the transaction contemplated by this Agreement,
obtain the prior written consent of Purchaser with respect to the content of
such notices. Purchaser shall not contact Seller's customers until the earlier
of (i) Seller's written consent, or (ii) receipt of all regulatory approvals and
the passage of any waiting periods, and all conditions precedent to Purchaser's
obligations hereunder have either been satisfied or waived in writing by
Purchaser.
(b) Prior to the Closing Date, Seller shall cooperate with
Purchaser, at Purchaser's expense and at no expense to Seller, in making
Transferred Employees available at reasonable times for whatever program of
training Purchaser deems advisable; provided, however, that Purchaser shall
conduct such training program in a manner that does not materially interfere
with or prevent the performance of the normal duties and activities of such
Transferred Employees. Purchaser shall make request of Seller for training
opportunities prior to the Closing Date, and shall reimburse Seller at the
Closing for any and all costs relating to such training including, but not
limited to, regular and overtime salary for Transferred Employees involved in
training for the period of such training, travel costs, and all expenses
incurred by Seller or such Transferred Employees in conjunction with the
training. Such requests, which shall specify the time, duration and place of
such training, must be
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approved by Seller.
(c) Seller shall cooperate with Purchaser, at no expense to
Seller, to make provision for the installation of teller and platform equipment
in the Branch Office subject to approval by Seller; provided, however, that
Purchaser shall arrange for the installation and placement of such equipment at
such times and in a manner that does not significantly interfere with the normal
business activities and operation of Seller or the Branch Office.
(d) Seller shall resign as custodian of each XXX account
maintained at the Branch Office and assign the custodianship of such accounts to
Purchaser upon Closing subject to receipt of applicable customer consents and
other and analyze such provisions of this Agreement.
(e) Seller shall terminate its ATM/debit card service effective as
of close of business on the business day preceding the Closing Date or such
other date and time as Seller and Purchaser may agree. Such terminations will be
preceded by the notice described in Paragraph 9.1(b) herein. Seller shall have
no obligation with respect to conversion or change over with respect to direct
deposit or payroll and retirement payments service relating to the Transferred
Accounts following the Closing and, further, Purchaser shall assume all
responsibility and liability with respect thereto following the Closing. Seller
will continue to redirect and/or pass through relevant ACH transactions on
Transferred Accounts for a period of two hundred ten (210) days following the
Closing Date.
(f) As of the opening of business on the first business day after
the Closing Date, Seller and Purchaser shall provide the appropriate Federal
Reserve Bank (the "FRB") with all information necessary in order to expedite the
clearing and sorting of all checks, drafts, instruments and other commercial
paper relative to the Transferred Accounts (hereinafter collectively referred to
as "Paper Items"). Purchaser shall bear all charges and costs imposed by the
Federal Reserve in connection with the reassignment of account number ranges for
sorting the Paper Items.
In the event the Federal Reserve and/or any other regional or
local clearinghouse for negotiable instruments fails, refuses or is unable to
direct sort such Paper Items for delivery to Purchaser with the result that such
Paper Items are presented to Seller, by not later than 3:00 p.m. local time on
each business day following the Closing and continuing for two hundred ten (210)
days after the Closing, Seller will make available to Purchaser for pick up from
Seller's offices or the offices of Seller's agent and/or processor at 0000 X.
Xxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx all of the Paper Items which are received by
Seller from the FRB and/or any regional or local clearinghouse during the
morning of each such business day on an "as-received basis." At the same xxxx
Xxxxxx shall also make available to Purchaser information and records, including
but not limited to systems printouts, concerning such Paper Items and concerning
incoming Automated Clearing House items ("ACH items") as well as outstanding
Automatic Teller Machine ("ATM") transactions. Such information and records,
including but not limited to systems printouts, will utilize the most recent
account number designated by Seller for each of the Transferred Accounts.
Purchaser shall initiate appropriate Notification of Change requests relating to
appropriate routing matters at the sole
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expense of Purchaser within 30 days following the Closing Date. Each business
day Seller will endeavor to see that the sum of (a) the actual Paper Items
provided to Purchaser plus (b) all ACH items and ATM transactions captured by
Seller in its information and records balance with the sum of (c) the
information and records, including but not limited to systems printouts,
provided by Seller relative to the Paper Items plus (d) the information and
records, including but not limited to systems printouts, provided relative to
the ACH items and ATM transactions affecting the Transferred Accounts.
Except as otherwise expressly provided herein, Seller shall
provide the foregoing at no charge to Purchaser for a period not to exceed
thirty (30) days from the Closing Date except that Purchaser shall pay any
charges assessed to Seller by the FRB, a national or local clearinghouse and/or
Seller's agent and/or processor to the extent such assessments relate to the
Transferred Accounts ("Costs"). Purchaser shall be responsible for pick up of
the data to be provided by Seller and shall compensate Seller for activity
subsequent to the referenced 30 day period as follows: (i) $50.00 per day and
Seller's Costs plus ten (10%) percent thereof for days 31 through 60; (ii)
$50.00 per day and Seller's Costs plus fifteen (15%) percent thereof for days 61
through 120; and (iii) $50.00 per day and Seller's Costs plus twenty-five (25%)
percent thereof for days 121 through 180. Any request for extension of the
180-day period shall be submitted in writing by Purchaser to Seller not later
than 10 business days prior to the expiration of such 180-day period or any
extensions thereof and shall be subject to approval by Seller at its sole
discretion. Fees for activity subsequent to the 180 day period shall be as
determined by Seller. Fees for activity subsequent to the initial 30-day period
shall be assessed on a daily basis and included in the daily cash settlement.
Except as otherwise expressly provided herein, Purchaser shall be
responsible for processing any and all ACH returns, received subsequent to the
Closing, directly through the appropriate Federal Reserve Bank.
Seller and Purchaser shall arrange for appropriate daily
settlement between the parties in order that the transmission of all monies
associated with the matters set forth in this Paragraph 9.2(f) might be effected
promptly.
Seller shall not be liable to Purchaser for any failure to provide
the data required by this Paragraph 9.2(f) to the extent any such failure
results from causes beyond Seller's control including war, strike or other labor
disputes, acts of God, errors or failures of the FRB, and/or a participating
regional or local clearinghouse, or equipment failure or other emergency wherein
Seller and/or its agent processor has been unable to process in clearings from
the FRB or such clearinghouse.
(g) Seller shall, not earlier than the time of procurement of all
regulatory approvals required for consummation of the transaction contemplated
by this Agreement nor later than twenty days prior to the Closing Date, notify
all depositors of the Branch Office by letter acceptable to Purchaser, produced
in, if appropriate, several similar, but different forms calculated to provide
necessary and specific information to the owners of particular types of accounts
and/or
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loans, of Purchaser's pending assumption of the Transferred Accounts, and, in
appropriate instances, notify depositors that on and after the Closing Date
certain Seller deposit-related services and/or Seller's debit card and automatic
teller machine services, will be terminated. The expenses of the printing,
processing and mailing of such letter notices shall be borne by Seller. Anything
to the contrary herein notwithstanding, nothing in this Agreement shall be
deemed to constitute an assumption by Seller of the duties and obligations of
Purchaser with respect to the provision of applicable notices, communications,
and filings relating to changes in the terms of any Transferred Accounts as set
forth in this Agreement.
(h) The duties and obligations of the parties in this Paragraph
9.2 shall survive the Closing.
9.3 OVERDRAFTS AND TRANSITIONAL ACTION. Overdrafts on the Transferred
Accounts up to and including the date of Closing will be the responsibility and
risk of Seller and all fees associated therewith shall be the property of
Seller. Overdrafts on the Transferred Accounts after the date of Closing will be
the responsibility and risk of Purchaser and all fees associated therewith shall
be the property of Purchaser.
9.4 ATM'S AND DEBIT CARDS.
(a) In accordance with the provisions of Section 4.7 hereinabove,
Seller shall provide to Purchaser and/or Purchaser's data processor, a test tape
no later than sixty (60) days prior to the closing date and a production tape no
later than thirty (30) days prior to the closing date so that Purchaser may
produce AB or CCB ATM/Debit cards with the same PIN number as the customer is
currently utilizing for their ATM/Debit card transactions prior to Closing. Both
tapes shall include file formats and/or file layouts of all ATM/Debit card
information and all related custumer information. Seller shall further provide
any and all information and assistance required by Purchaser as are reasonable
and customary in conversions of the kind contemplated by this Agreement. In
addition, from the date that the production tape is produced until the Data
Processing Conversion, Seller shall maintain, make available and deliver to
Purchaser a manual log of all new/replacement cards issued, changes to existing
cards/PIN numbers, and other such data so that Purchaser may make similar manual
changes to cards being produced for customers to be used after the date of the
Data Processing Conversion. Upon the Data Processing Conversion, Seller's Data
Processor shall deactivate the operation of the Seller's ATM/Debit cards with
respect to the Transferred Accounts. Purchaser and Seller agree to settle, on a
daily basis, the net amount of ATM debits/credits associated with transferred
accounts until the conversion date. Seller shall provide all necessary
information and reports with respect to such ATM/Debit card activity on the
Transferred Accounts so that Purchaser may appropriately debit/credit the
Transferred Accounts for such ATM/Debit card activity and balance sais activity
to the General Ledger or Settlement Accounts.
(b) Purchaser and Seller agree to cooperate with each other to assure
that all transactions originated through the ATM or originated with the ATM
Cards prior to or on the Closing Date shall be for the account of Seller and all
transactions originated after the Closing Date shall be for the
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account of Purchaser. A post closing adjustment shall be made to reflect all
such transactions, which cannot be reasonably calculated as of the Closing.
ARTICLE X
AMENDMENT; TERMINATION
10.1 AMENDMENT. This Agreement may be amended in writing at any time
with the mutual consent of the Board of Directors of Purchaser and Seller.
Purchaser and Seller hereby covenant that neither shall unreasonably take any
action or refuse to take any action, whether or not specifically or generally
contemplated as a part of this Agreement, wherein such action or non-action
would interfere with the accomplishment of the transaction contemplated by this
Agreement.
10.2 TERMINATION. This Agreement and the obligations created hereby
shall terminate in the event that any one or the following events occur: (i) the
necessary regulatory approvals have not been obtained prior December 1, 2000,
(ii) by the Board or Directors of Purchaser if any of the conditions provided in
ARTICLE IV herein shall not have satisfied, complied with or performed in any
material respect, and Purchaser shall not have waived such failure of
satisfaction, noncompliance or non-performance; or (iii) by the Board of
Directors of Seller if any of the conditions provided in ARTICLE V shall not
have been satisfied, complied with or performed in any material respect, and
Seller shall not have waived such failure of satisfaction, noncompliance or
non-performance; or (iv) the mutual agreement of the parties. Any material
condition contained in the approval of the transactions contemplated by this
Agreement by the FDIC, FRB, OBRE or the OTS will be subject to the consent of
the Boards of Directors of both Purchaser and Seller, as limited under the terms
of this Agreement.
If termination of this Agreement shall be judicially determined to have
been caused by breach of this Agreement by either party, then, in addition to
other remedies at law or equity for breach of this Agreement, breaching party
shall indemnify the other party for its costs, fees and expenses of its counsel,
accountants and other experts and advisors as well as fees and expenses incident
to negotiation, preparation and execution of this Agreement in related actions.
If termination of this Agreement shall be judicially determined to have been
caused by breach of this Agreement by either party, then the breaching party
shall pay promptly, and in any event within ten (10) days of receipt of written
notice from the other party, to the other party TWO HUNDRED THOUSAND AND
NO/100THS ($200,000.00) DOLLARS plus the other party's costs, fees and expenses
of its counsel, accountants and other experts and advisors as well as fees and
expenses incident to negotiation, preparation and execution of this Agreement,
as liquidated damages.
Except as provided in the immediately preceding paragraph, if this
Agreement is terminated, for whatever reason, then (i) this Agreement shall
forthwith become void and of no effect and without liability to any party to
this Agreement; (ii) each party hereto shall pay all of its costs incurred by it
in the negotiation, preparation and execution of this Agreement and the
obtaining of the necessary approvals thereof, including fees and expenses of
legal counsel, accountants and other experts; and (iii) the parties shall
continue to be bound by the provisions of this Agreement which by their terms
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are intended to be extended after termination of the Agreement and also by the
terms of that certain Confidentiality Agreement dated March 16, 2000 between the
parties (the "Confidentiality Agreement").
ARTICLE XI
MISCELLANEOUS
11.1 A. NON-SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
None of the representations or warranties and agreements in this Agreement or in
any instrument delivered pursuant to this Agreement shall survive the Closing
Date, except for the covenants and agreements, which by their terms are
contemplated to be performed after the Closing Date, including but not limited
to the Covenant not to Compete.
11.1 B. CLAIMS REGARDING THE TRANSFERRED ACCOUNTS. Notwithstanding
anything herein contained to the contrary it is agreed that all insurance
coverage relating to claims arising from Seller's administration of the
Transferred Accounts prior to the Closing Date shall, to the extent assignable,
be assigned to Purchaser. To the extent such insurance claims are either a) not
transferable or b) not otherwise covered by any insurance, then Seller agrees to
indemnify, defend, and hold Purchaser harmless from any losses, judgments,
expenses, attorneys fees or costs threatened or incurred by Purchaser as a
result of such claims, provided, however, that Seller shall not indemnify,
defend or hold Purchaser harmless from Purchaser's own negligence or willful
misconduct.
11.2 NOTICES. All notices, requests, demands and other communications
hereunder shall be in writing and may be delivered via facsimile transmission,
overnight carrier or registered or certified mail postage prepaid. When notice
is given via facsimile transmission, it shall be conclusively deemed to have
been received on the date of transmittal provided the sender receives
confirmation of transmittal to the number set forth below. Notice given by
overnight carrier shall be conclusively deemed received on the date following
the date sent. Notice sent registered or certified mail, postage prepaid, shall
be conclusively deemed to have been received three (3) business days after its
deposit in the United States mail when sent to the other party at the received
address set forth below. Either party may change the address to which notice
shall be sent by giving written notice to the other party.
TO SELLER: Xx. Xxxx X. Xxxxxxx
Chairman of the Board and President
ARGO FEDERAL SAVINGS BANK, FSB
0000 Xxxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000-0000
Facsimile No. (000) 000-0000
COPY TO: Xxxxx X. Xxxx, Xx.
XXXX & XXXXXXXXXXXX, LTD.
0000 Xxxxxx Xxxx
Xxxxx 000
00
00
Xxx Xxxxx, XX 00000
Facsimile No. (000) 000-0000
TO PURCHASER: Xxxxx X. Xxxxxxx
Chairman of the Board and CEO
Archer Bank
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile No.(000) 000-0000
COPY TO: Xxxxxx X. Xxxxxxxx
Xxxxxx & Karcazes, Ltd.
00 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Facsimile No. (000) 000-0000
11.3 SUCCESSORS AND ASSIGNS. All terms and provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective transferees, successors and assigns, but the Agreement may not be
assigned by either party without the written consent of the other.
11.4 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which taken together shall constitute one action and the
same instrument.
11.5 GOVERNING LAW. This Agreement is being delivered and is intended
to be performed in the State of Illinois and shall be construed and enforced in
accordance with the laws of the State of Illinois or the United States of
America, as applicable.
11.6 REMEDIES NOT EXCLUSIVE. No remedy conferred by any of the specific
provisions of this Agreement is intended to be exclusive of any other remedy,
and each and every remedy shall be cumulative and shall be in addition to every
other remedy given hereunder or now or hereafter existing at law or in equity or
by statute or otherwise. The election of any one or more remedies by either of
the parties shall not constitute a waiver of the right to pursue other available
remedies.
11.7 ASSIGNMENT. This Agreement shall not be assignable by either party
without the written consent of the other. Nothing in this Agreement, expressed
or implied, is intended to confer upon any person other than the parties hereto
and their successors and permitted assigns any right or remedy under or by
reason of this Agreement.
11.8 COSTS. All of the costs and expenses, including legal and
accounting fees attendant to this transaction, incurred by either party in
connection with this Agreement and the transactions contemplated hereby shall be
paid by the party incurring the same, except as provided herein upon
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termination caused by breach by either party.
11.9 PARAGRAPH HEADINGS. The paragraph headings in this Agreement are
for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
11.10 GENDER, ETC. Words herein, regardless of the number and gender
specifically used, shall be deemed and construed to include any other number,
singular or plural and any other gender, masculine, feminine or neuter, as the
context requires.
11.11 ENTIRE AGREEMENT. This Agreement, along with the Confidentiality
Agreement, constitutes the entire agreement between Purchaser and Seller. There
are no written or oral agreements between Purchaser and Seller in connection
with this Agreement that are not set forth herein or in the exhibits attached
hereto. This Agreement supersedes and replaces any and all prior agreements
between Purchaser and Seller whether written or oral, except the Confidentiality
Agreement.
11.12 SEVERABILITY. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions hereof or
the validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction; provided, however, that in the event the
invalid provision shall result in a material change in the terms or conditions
of this Agreement, the party against whom the provision affects may terminate
this Agreement; provided that such invalid or unenforceable provision(s) cannot
be replaced with a new provision which has the most nearly similar permitable
economic effect and which is acceptable to Purchaser and Seller.
11.13 RULE OF CONSTRUCTION. The language and all parts of this
Agreement shall in all cases be construed as a whole according to its fair
meaning, strictly neither for nor against any party hereto, and without
implication or presumption that the terms hereof shall be more strictly
construed against any party by reason of the rule of construction that a
document is to be construed more strictly against the person who prepared this
Agreement.
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as
of the date first above written.
ARGO FEDERAL SAVINGS BANK, FSB
BY:
------------------------------------
XXXX X. XXXXXXX
PRESIDENT
ATTEST:
--------------------------- ------------------------------------
SECRETARY XXXX X. XXXXXXX, INDIVIDUALLY
AS TO COVENANT NOT TO COMPETE AT
SECTIONS 7.4 (A)-(C) HEREINABOVE
XXXXXX BANK
ATTEST: BY:
------------------------------------
XXXXX X. XXXXXXX
--------------------------- CHAIRMAN OF THE BOARD AND CHIEF
SECRETARY EXECUTIVE OFFICER
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