Exhibit 10.15
Office Purchase and Assumption Agreement
by and between
Bank One Wisconsin
000 Xxxx Xxxxxxxxx Xxx., Xxxxxxxxx, Xxxxxxxxx 00000
and
Wisconsin Community Bank
000 X. Xxxx Xx., Xxxxxxx Xxxxx, Xxxxxxxxx 00000
Dated as of the 9TH day of February, 1999
TABLE OF CONTENTS
Page
1. PURCHASE AND ASSUMPTION
1.1 Purchase and Sale of Assets
1.2 Transfer of Assets
1.3 Acceptance and Assumption
1.4 Payment of Funds
2. CONDUCT OF THE PARTIES PRIOR TO CLOSING
2.1 Covenants of BANK ONE
2.2 Covenants of BUYER
2.3 Covenants of All Parties
3. REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of BANK ONE
3.2 Representations and Warranties of BUYER
4. ACTIONS RESPECTING EMPLOYEES AND PENSIONS AND EMPLOYEE
BENEFIT PLANS
4.1 Employment of Employees
4.2 Terms and Conditions of Employment
4.3 Compliance with Law
4.4 Actions to be Taken by BANK ONE
5. CONDITIONS PRECEDENT TO CLOSING
5.1 Conditions to BANK ONE's Obligations
5.2 Conditions to BUYER's Obligations
5.3 Non-Satisfactions of Conditions Precedent
5.4 Waivers of Conditions Precedent
6. CLOSING
6.1 Closing and Closing Date
6.2 BANK ONE's Actions at Closing
6.3 BUYER's Actions at the Closing
6.4 Methods of Payment
6.5 Availability of Closing Documents
6.6 Effectiveness of Closing
7. CERTAIN TRANSITIONAL MATTERS
7.1 Transitional Action by BUYER
7.2 Transitional Actions by BANK ONE
7.3 Overdrafts and Transitional Action
7.4 ATMs and Debit Cards
7.5 Environmental Matters
7.6 Effect of Transitional Action
8. GENERAL COVENANTS AND INDEMNIFICATION
8.1 Confidentiality Obligations of BUYER
8.2 Confidentiality Obligations of BANK ONE
8.3 Indemnification by BANK ONE
8.4 Indemnification by BUYER
8.5 Solicitation of Customers by BUYER Prior to Closing
8.6 Solicitation of Customers by BANK ONE After the Closing
8.7 Further Assurances
8.8 Operation of the Offices
8.9 Information After Closing
8.10 Individual Retirement Accounts
8.11 Covenant Not to Compete
8.12 Non-solicitation of Employees
9. TERMINATION
9.1 Termination by Mutual Agreement
9.2 Termination by BANK ONE
9.3 Termination by BUYER
9.4 Effect of Termination
10. MISCELLANEOUS PROVISIONS 10.1 Expenses
10.2 Certificates
10.3 Termination of Representations and Warranties
10.4 Waivers
10.5 Notices
10.6 Parties in Interest:Assignment; Amendment
10.7 Headings
10.8 Terminology
10.9 Flexible Structure
10.10 Press Releases
10.11 Entire Agreement
10.12 Governing Law
10.13 Counterparts
10.14 Tax Matters
10.15 Good Faith Deposit
10.16 Interim Transactions
SIGNATURES
SCHEDULES: (Schedules are not included in this filing)
Schedule A - Description of Owned Real Estate
Schedule B - Description of Leased Real Estate and Third Party
Lease
Schedule C - Furniture, Fixtures and Equipment
Schedule D - Assumed Contracts
Schedule E - List of Leases, Safekeeping Items and Agreements
Schedule F - Form of Assignment and Assumption of Lease and
Estoppel Certificate
Schedule G - RESERVED
Schedule H - RESERVED
Schedule I - Form of Certification of BUYER
Schedule J - Form of Opinion of Counsel for BUYER
Schedule K - Form of Certification of BANK ONE
Schedule L - Form of Opinion of Counsel for BANK ONE
Schedule M - Form of Assignment of Office Loans, Notes,
Agreements and Pledge
Schedule N - Form of Instrument of Assumption
Schedule O - Form of Assignment, Transfer and Appointment of
Successor Custodian for IRAs
Schedule P - Form of Preliminary Closing Statement
Schedule Q - Form of Final Settlement Statement
Schedule R - Listing of Employees of Offices
Schedule S - Put Provisions for Office Loans
OFFICE PURCHASE AND ASSUMPTION AGREEMENT
This Office Purchase and Assumption Agreement (the "Agreement"
herein), made and entered into this 9TH day of February, 1999, by
and between Wisconsin Community Bank , a Wisconsin banking
corporation with its principal office at 000 X. Xxxx Xx., Xxxxxxx
Xxxxx, Xxxxxxxxx ( the "BUYER" herein) and Bank One Wisconsin, a
Wisconsin banking corporation with its principal office at 000
Xxxx Xxxxxxxxx Xxx., Xxxxxxxxx, Xxxxxxxxx 00000 ("BANK ONE"
herein).
WHEREAS, BUYER desires to purchase and assume from BANK ONE, and
BANK ONE desires to sell and assign to BUYER, certain assets and
liabilities associated with offices of BANK ONE as hereinafter
described;
NOW, THEREFORE, in consideration of the premises and for other
good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, BUYER and BANK ONE hereby agree as
follows:
1. PURCHASE AND ASSUMPTION.
1.1 Purchase and Sale of Assets. At the Closing, as
defined in Section 6.1 hereof (the "Closing"), BUYER shall
purchase and acquire, and BANK ONE shall sell and assign, the
real estate and other assets described in Section 1.2 hereof
(collectively, the "Assets") all of which are used in and/or
relate to business conducted by BANK ONE at its branch offices
known as and located at the sites described in Schedules A and B
attached hereto and incorporated herein by reference, pursuant to
the terms and conditions set forth herein and subject to
exceptions, if any, set forth herein. The foregoing offices are
hereinafter sometimes collectively referred to as the "Offices"
and each, individually, sometimes as an "Office." The
transactions contemplated by this Agreement and the purchase of
assets and assumption of liabilities provided for herein is
sometimes referred to herein as the "Acquisition." Except as
otherwise expressly provided herein, the sale of the Assets is
without warranty or guarantee, express or implied, on an "as-is,
where-is" basis, and without recourse. Except as otherwise
expressly provided herein, the Assets are sold without any
representation or warranty whatsoever by BANK ONE.
1.2 Transfer of Assets. Subject to the terms and
conditions of this Agreement, BANK ONE shall assign, transfer,
convey and deliver to BUYER, on and as of the Closing on the
Closing Date, as defined in Section 6.1 hereof, the Assets, which
shall include the following:
(a) Owned Real Estate. All of BANK ONE's right, title
and interest in and to the real estate described in attached
Schedule A on which an Office is situated, together with all of
BANK ONE's rights in and to all improvements thereon; and all
easements rights, privileges and appurtenances associated
therewith (the "Owned Real Estate"). Schedule A shall
specifically identify the Owned Real Estate by street address,
legal description and/or tax parcel number; and shall not be
deemed to include any adjacent properties unless clearly set
forth in Schedule A at the time of execution of this Agreement.);
(b) Leased Real Estate. A good and valid leasehold
estate in the real estate described in attached Schedule B and
created by certain lease agreement(s) (individually and
collectively the "Third Party Lease") relating to the referenced
Offices (the "Leased Real Estate"), specifically identified by
street address, legal description and/or tax parcel numbers in
Schedule B attached hereto and incorporated herein by reference;
(c) Furniture and Equipment. All of BANK ONE's right,
title and interest in and to the furniture, fixtures and
equipment located at the Offices as of the Closing Date (the
"Fixed Assets"), a preliminary listing of which is contained in
Schedule C attached hereto and incorporated herein by reference,
specifically excluding, among other items, teller calculators and
other teller and platform equipment and systems, CRTs,
controllers and printers, signs and stands, printed supplies and
documents and other materials bearing any BANK ONE or affiliate
name and/or logo, network communications equipment and related
devices, any artwork, ATM surrounds, and marketing fixtures. A
final listing of specific items included in the Fixed Assets will
be provided to BUYER prior to the Closing.
(d) Safe Deposit Business. All right, title and
interest of BANK ONE in and to the safe deposit business (subject
to the allocation of safe deposit rental payments as provided in
Section 1.3(c)(ii) hereof) conducted at the Offices as of the
close of business on the Closing Date;
(e) Cash on Hand. All cash on hand at the Offices as
of the close of business on the Closing Date including vault
cash, xxxxx cash, ATM cash and tellers' cash;
(f) Prepaid Expenses. All prepaid expenses recorded
or otherwise reflected on the books of BANK ONE as at October 31,
1998, or incurred in the ordinary course of business thereafter,
as being attributable to the Offices as of the close of business
on the day immediately preceding the Closing Date, but only to
the extent attributable to the Assets sold, assigned or
transferred to BUYER by BANK ONE pursuant to this Agreement and
only to the extent arising by reason of BUYER's use or ownership
of such Assets after the close of business on the Closing Date.
Any and all prepaid expenses incurred by BANK ONE with respect to
the Offices subsequent to October 31, 1998, shall be subject to
the prior written consent of BUYER;
(g) Office Loans. All right, title and interest in
and to all those loans and/or letters of credit which, as of the
close of business on the Closing Date, are (i) secured in whole
or in part by Deposit Accounts (as hereinafter defined)
attributable to an Office (the "Deposit Account Loans"), (ii)
commercial or other loans or letters of credit attributable to an
Office (if any, the "Other Loans") or (iii) automatically created
as the result of an overdraft of a Deposit Account pursuant to an
overdraft protection program offered by BANK ONE (except for
those overdraft protection loans which are charged to credit card
accounts not transferred to the BUYER hereunder, the "Overdraft
Loans"). The Deposit Account Loans, Other Loans, and Overdraft
Loans sold and assigned to BUYER hereunder will be identified as
of the Closing Date and listed in Schedule H attached hereto and
incorporated herein by reference (hereinafter referred to
individually and collectively as the "Office Loans"). Transfer
of the Office Loans will be subject to the terms and conditions
set forth in Schedule S attached hereto and incorporated herein
by reference. Except as otherwise expressly provided herein, the
transfer of the Office Loans will be made without recourse,
without any representation, warranty, or guarantee of any kind,
express or implied, and without any reserve for loan losses;
(h) Records of the Offices. All records and documents
related to the Assets transferred or liabilities assumed by BUYER
as may exist and are available and maintained at the Offices (in
whatever form or medium then maintained by BANK ONE) including,
but not limited to, those relating to (i) the Deposit Accounts
and (ii) the promissory notes and documents and instruments
evidencing the Liens ( as defined in Schedule S annexed hereto
and made a part hereof) relating to the Office Loans; and(i)
Contracts or Agreements. All of BANK ONE's right, title and
interest in and to the maintenance and service agreements related
to the Offices, as listed on Schedule D annexed hereto and made a
part hereof (the "Assumed Contracts"), provided the same are
assignable without cost to BANK ONE.
1.3 Acceptance and Assumption. Subject to the terms and
conditions of this Agreement, on and as of the Closing on the
Closing Date, BUYER shall:
(a) Assets. Receive and accept all of the Assets
assigned, transferred, conveyed and delivered to BUYER by BANK
ONE pursuant to this Agreement, including those identified in
Section 1.2 above.
(b) Deposit Liabilities. Assume and thereafter
discharge, pay in full and perform all of BANK ONE's obligations
and duties relating to the "Deposit Liabilities" (as hereinafter
defined). The term "Deposit Liabilities" is defined herein as
all of BANK ONE's obligations, duties and liabilities of every
type and character relating to all deposit accounts, other than
(i) XXXXX accounts and (ii) deposit accounts securing any loan of
BANK ONE which is not an Office Loan, for which BUYER assumes no
liability, which, as reflected on the books of BANK ONE as of the
close of business on the Closing Date, are attributable to the
Offices. The deposit accounts referred to in the immediately
preceding sentence (hereinafter the "Deposit Accounts") include,
without limitation, passbook, statement savings, checking, Money
Market, and NOW accounts, Individual Retirement Accounts for
which BANK ONE has not received, on or before the Closing Date,
the written advice from the account holder of such account
holder's objection or failure to accept BUYER as successor
custodian ("IRA's") and certificates of deposit. The
"obligations, duties and liabilities" referred to in the
immediately preceding sentence include, without limitation, the
obligation to pay and otherwise process all Deposit Accounts in
accordance with applicable law and their respective contractual
terms and the duty to supply all applicable reporting forms for
periods following the Closing Date including, without limitation,
IRS Form 1099 reports relating to the Deposit Accounts to be
filed and provided after the Closing Date relating to interest
accrued after the Closing Date. With regard to each XXX included
within the Deposit Accounts, BUYER shall also assume the
appropriate plan pertaining thereto and the trustee or custodial
arrangement in connection therewith.
(c) Liabilities Under Leases/Safe Deposit Business.
Assume and thereafter fully and timely perform and discharge, in
accordance with their respective terms, all of the liabilities
and obligations of BANK ONE arising after the Closing Date with
respect to:
(i) all leases listed on Schedules B and E to
this Agreement (including safe deposit leases if any) and sold,
assigned or transferred to BUYER by BANK ONE pursuant to this
Agreement;
(ii) the safe deposit business of the Offices
including, but not limited to, the maintenance of all necessary
facilities for the use of safe deposit boxes by the renters
thereof during the periods for which such persons have paid rent
therefor in advance to BANK ONE, subject to the agreed allocation
of such rents, which allocation shall be satisfied in full by
BANK ONE paying to BUYER, in the manner specified in Section 6.4
hereof, the amount of rental payment received by BANK ONE for
each such safe deposit box attributable to and prorated to
reflect the period from and after the Closing Date, subject to
the provisions of the applicable leases or other agreements
relating to such boxes; and
(iii) all safekeeping items and agreements listed
on Schedule E to this Agreement and delivered to BUYER by BANK
ONE pursuant to this Agreement, including, but not limited to,
all applicable safekeeping agreements, memoranda, or receipts so
delivered to BUYER by BANK ONE hereunder.
(d) Other Liabilities. Fully and timely perform and
discharge, as the same may be or become due, the Assumed
Contracts, the Third Party Lease for the Leased Real Estate,
obligations pertaining to the Office Loans, and all additional
liabilities, obligations and deferred expenses of BANK ONE as of
the date of this Agreement, which are reflected on the books of
BANK ONE as being attributable to an Office as of the close of
business on the Closing Date but only to the extent attributable
to the Assets sold, assigned or transferred to BUYER by BANK ONE
pursuant to this Agreement and only to the extent arising by
reason of BUYER's use or ownership of such Assets after the close
of business on the Closing Date. No additional material
liabilities and obligations of BANK ONE incurred subsequent to
the date of this Agreement shall be assumed by BUYER unless the
prior written consent of BUYER has been obtained prior to the
incursion of the material liability or obligation by BANK ONE.
(e) Other Obligations. Fully and timely perform its
obligations relative to employees of the Offices, if any, as set
forth hereinafter.
1.4 Payment of Funds. Subject to the terms and conditions
hereof, at the Closing:
(a) Consideration. In consideration of BUYER's
assumption of the Deposit Liabilities and its other agreements
herein, BANK ONE shall make available and transfer to BUYER, in
the manner specified in Section 6.4 hereof, funds equal to the
aggregate balance of all Deposit Accounts (including interest
posted or accrued to such accounts as of the close of business on
the Closing Date) plus the deferred expenses identified in
Section 1.3(d) hereof prorated as of the close of business on the
Closing Date less an amount equal to the sum of:
The amount of cash on hand at the Offices transferred to
BUYER as of the close of business on the Closing Date; and
(i) the net aggregate book value of the
Offices, valued as of the last day of the month ending
immediately prior to the month in which the Closing Date occurs;
and
(ii) the net aggregate book value of the
furniture, fixtures and equipment being transferred to BUYER,
valued as of the last day of the month ending immediately prior
to the month in which the Closing Date occurs; and
(iii) 11.13% of the aggregate "Core Deposits" (as
hereinafter defined) of the Offices as of the close of business
on the Closing Date. The term "Core Deposits" shall mean the
aggregate balance of all Deposit Liabilities of the Offices
(which aggregate balance shall include all interest accrued on
such Deposit Liabilities as of the close of business on the
Closing Date, whether or not such interest is actually posted to
the account on the Closing Date). The amount calculated as set
forth herein as of the close of business on the Closing Date is
hereinafter called the "Acquisition Consideration;" and
(iv) the amount of prepaid expenses described
in Section 1.2(f) of this Agreement, prorated as of the close of
business on the day immediately preceding the Closing Date; and
(v) the book value of the Office Loans together
with accrued and unpaid interest thereon and any and all late
fees and other fees relating thereto computed as of the close of
business on the Closing Date; and
(vi) the sum of $10,000.00 for each ATM or CBCT
located at the Offices; and
(vii) reimbursement for training expenses as
provided in Section 7.2(c) herein.
In the event that the sum of items (i) through (vii) above should
be in excess of the aggregate amount to be transferred by BANK
ONE pursuant to the first paragraph of this Section 1.4(a), the
full amount of such excess shall constitute an amount due from
BUYER to BANK ONE, and shall be paid to BANK ONE at the Closing
in the manner specified in Section 6.4 hereof. The parties shall
execute a Preliminary Settlement Statement at the Closing and a
Final Settlement Statement post-closing in accordance with
section 6.4 herein, in substantially the same form as set forth
in Schedules P and Q attached hereto and incorporated herein.
(b) Reimbursement and Proration of Certain Expenses.
All other expenses (i) due and payable at times after the Closing
Date for periods prior to the close of business on the Closing
Date or (ii) paid prior to the close of business on the Closing
Date for periods following the Closing Date, including the
prepaid expenses described in Section 1.2(f) hereof and deferred
expenses described in Section 1.3(d) hereof, including without
limitation, real estate taxes and assessments which are a lien
but not yet due and payable, utility payments, payments due on
leases assigned, payments due on assigned service and maintenance
contracts and similar expenses relating to the Offices shall be
prorated between BANK ONE and BUYER as of the close of business
on the day immediately preceding the Closing Date, provided,
however, that all real estate taxes and assessments, to the
extent payable by Seller and/or Buyer, shall be prorated at the
Closing on the basis of the most recently certified real estate
taxes and assessments, and all utility payments and lease
payments shall be prorated on the basis of the best information
available at Closing. Any security deposits relating to the
Leased Real Estate shall be credited to the Seller at Closing.
With respect to premiums paid to the FDIC for deposit insurance
for the Deposit Liabilities, it shall be assumed that all the
Deposit Liabilities are insured under the Bank Insurance Fund;
the proration of FDIC insurance premiums will be based on the
amount of the Deposit Liabilities as of the close of business on
the Closing Date and the number of days during any period for
which BANK ONE has prepaid premiums to the FDIC but during which
BUYER has held or will hold the Deposit Liabilities. For
prorations, if any, which cannot be reasonably calculated as of
the Closing, a post-closing adjustment shall be made in the
manner specified in Section 6.4 hereof.
(c) Expenses Relating to Real Property and other
Assets. The transfer (or conveyance) fees relating to the Owned
Real Estate and the costs, fees and expenses of all title
commitments, title guaranties and title examinations relating to
the procurement of the Title Commitments related to the Owned
Real Estate and the Leased Real Estate referred to in Sections
2.1(b) and 5.2(g) herein, shall be allocated to, and shall be
borne, solely and exclusively by BANK ONE. The costs, fees and
expenses relating to the premiums, including any endorsements for
extended coverage, for all title insurance policies (net of the
costs of all title commitments, guaranties and examinations),
recording costs and other similar costs, fees and expenses, if
any, relating to the sale and transfer of the Owned Real Estate
or the transfer of BANK ONE's interest in the Leased Real Estate
including, but not limited to, any conveyance fees, taxes,
recording costs and other similar fees and expenses relating to
the sale and transfer of any other Assets, shall be allocated to,
and shall be borne, solely and exclusively, by BUYER. To the
extent BUYER requests BANK ONE or its attorneys to seek certain
title endorsements or removal of exceptions noted on the title
commitments, BUYER shall reimburse BANK ONE at Closing for its
attorney fees related thereto. In no event shall BANK ONE be
required to undertake any negotiations with the title insurance
companies for any matters that relate to the scope of title
insurance coverage or the Permitted Exceptions. BANK ONE shall
reimburse BUYER at the Closing for all the costs, fees and
expenses allocated to BANK ONE pursuant to this Section 1.4(c)
but paid by BUYER, and BUYER shall reimburse BANK ONE at the
Closing for all of the costs, fees and expenses allocated to
BUYER pursuant to this Section 1.4(c) but paid by BANK ONE in the
manner specified in Section 6.4 herein. If this transaction does
not close by virtue of a breach of this Agreement, the breaching
party shall be responsible for and shall, as appropriate,
reimburse the other party for its expenses as set forth herein.
If this transaction does not close for any other reason, each
party shall reimburse the other party upon termination of this
Agreement for such party's share of expenses so that each party
shall pay the same share of expenses as it would have paid at
Closing.
(d) Insurance Premium Refunds. With respect to the
Insured Office Loans as defined in Section 7.2(j) herein, BANK
ONE shall provide a credit to BUYER in a sum equal to 10.5% of
the unearned premiums relating to the Insured Office Loans to
compensate BUYER, in advance, for estimated refunds otherwise
payable to BANK ONE in conjunction with future payoffs of such
Insured Office Loans prior to maturity (the "Premium Settlement
Payment" herein). Such Premium Settlement Payment shall be
calculated as of the Closing Date and shall appear as a credit to
BUYER in the Final Settlement Statement referenced in Section.6.4
herein.
2. CONDUCT OF THE PARTIES PRIOR TO CLOSING.
2.1 Covenants of BANK ONE. BANK ONE hereby covenants to
BUYER that, from the date hereof until the Closing, it will do or
cause the following to occur:
(a) Operation of the Offices. BANK ONE shall continue
to operate the Offices in a manner substantially equivalent to
that manner and system of operation employed immediately prior to
the date of this Agreement; provided, however, that it is
contemplated by the parties that, prior to Closing, BANK ONE will
be terminating certain programs which are currently in effect
which allow depositors to access Deposit Accounts through
electronic means.
Notwithstanding the foregoing and except as may be required to
obtain the required authorizations referred to in Section 2.3 of
this Agreement, between the date of this Agreement and the
Closing Date, and except as may be otherwise required by a
regulatory authority, BANK ONE shall not, without the prior
consent of BUYER, which consent shall not be unreasonably
withheld:
(i) cause any Office to engage or participate
in any material transaction or incur or sustain any obligation
which, in the aggregate, is material to its business, condition
or operations except in the ordinary course of business;
(ii) cause any Office to transfer to BANK ONE's
other operations any material amount of Assets, except for
(a) supplies, if any, which have unique function in the business
of BANK ONE and its affiliates and ordinarily would not be useful
to BUYER, (b) cash and other normal intrabank transfers which may
be transferred in the ordinary course of business in accordance
with normal banking practices and (c) signs, or those parts
thereof, bearing the BANK ONE or affiliate name and/or logo or
that of a BANK ONE contractor;
(iii) cause the Offices to transfer to BANK ONE's
other operations any deposits other than deposits securing loans
made by BANK ONE which are not Office Loans and deposits owned in
whole or in part by employees of BANK ONE or its affiliates who
are not Transferred Employees as defined in Section 4.1 of this
Agreement, except in the ordinary course of business at the
unsolicited request of depositors or cause any of BANK ONE's
other operations to transfer to the Offices any deposits, except
in the ordinary course of business at the unsolicited request of
depositors; provided, however, that BANK ONE shall be permitted
to make such transfers of any deposits to or from the Offices as
are in the normal course of business and do not violate the
foregoing restrictions;
(iv) invest in any Fixed Assets on behalf of any
Office, except for commitments made on or before the date of this
Agreement which are disclosed to BUYER on Schedule C of this
Agreement and for replacements of furniture, furnishings and
equipment and normal maintenance and refurbishing purchased or
made in the ordinary course of Office business;
(v) enter into or amend any continuing contract
(other than Deposit Liabilities, Office Loans, and Safe Deposit
agreements) relating to the Offices, which cannot be terminated
without cause and without payment of any amounts as a penalty,
bonus, premium or other compensation for termination, or which is
not made in the ordinary course of Office business;
(vi) hire (other than to replace a departing
employee and/or to bring the number of employees at the Offices
to normal staffing levels), transfer, reassign or terminate any
employee of the Offices, increase the compensation of any
employee of the Offices, or promote any of the employees of the
Offices except pursuant to and consistent with customary BANK ONE
procedures and policies; or
(vii) make any material change to its customary
policies for setting rates on deposits offered at the Offices.
(b) Title Commitments for Real Estate. BANK ONE shall
deliver to BUYER, at BANK ONE's expense, with respect to the
Owned Real Estate and Leased Real Estate, no later than thirty
(30) days after the date of this Agreement, a commitment or
commitments (the "Title Commitments") having an effective date as
near as feasible to the date of delivery of such Title
Commitments, from a title insurance company designated by BANK
ONE and reasonably satisfactory to BUYER, to issue to BUYER as
soon as practicable after the Closing Date, as applicable, an
American Land Title Association (ALTA) owners (Form B, 1970, Rev
1984) and/or leasehold title insurance (1975 Form) policies
having an effective date as of the Closing Date, covering the
Owned Real Estate and the Leased Real Estate, in an amount equal
to the most recently available certified tax assessed value for
the Owned Real Estate and the amount of the leasehold interest,
based on the remaining rental payments due under the balance of
the remaining term of the lease, to be transferred to BUYER
pursuant to the Third Party Leases, subject to the exceptions
specified in the Title Commitments. If title to all or part of
the Owned Real Estate or Lease Real Estate is unmarketable or is
subject to any defect, lien, encumbrance, easement, condition,
restriction or encroachment other than the Permitted Exceptions
as defined in Section 10.08(c) herein, then BUYER shall provide
written notice thereof to BANK ONE. BANK ONE shall have thirty
days after written notice thereof from BUYER, to elect to remedy
or remove any such defect, lien, encumbrance, easement,
condition, restriction or encroachment but, if BANK ONE does not,
BUYER may elect to attempt to cure or remove such defect or
encumbrance or other matter, for a period of thirty days
thereafter. If such defect or encumbrance or other matter is not
cured, then, in addition to any other rights which BUYER may have
hereunder, BUYER shall have the right with respect to the
relevant Office (i) to declare this Agreement terminated by
written notice to BANK ONE, (ii) to negotiate, at BUYER'S cost,
with the title company for certain endorsements to the standard
insurance coverage to address any such defects or encumbrances,
or (iii) to waive any objection to such defect or encumbrance or
other matter in which event such defect, encumbrance, or other
matter shall be deemed to be a Permitted Exception. The Owned
Real Estate is being sold by BANK ONE to BUYER hereunder free and
clear of all liens, claims, encumbrances and rights of tenants in
possession except for the Permitted Exceptions, and the
conveyance by Limited Warranty Deed to be delivered by BANK ONE
pursuant hereto shall be subject only to the Permitted
Exceptions. BANK ONE also shall execute and deliver to BUYER at
the time of Closing such affidavits and other instruments, if
any, as the title insurance company issuing the Title Commitments
may require to delete the standard exceptions appearing as
"Schedule B" items in a standard ALTA owners or leasehold owners
title insurance policy, other than those which may only be
deleted by a survey. BANK ONE also shall execute and deliver a
so-called FIRPTA affidavit at Closing. BUYER shall obtain duly
certified surveys for the Owned Real Estate and the Leased Real
Estate with a metes and bounds legal description, depicting all
easements, rights-of-way, set-back lines, and any encumbrances
appearing on the title commitment, and BANK ONE hereby grants to
BUYER and its surveyors, agents and contractors right of access
to the Owned Real Estate and Leased Real Estate, with the prior
consent of the landlord obtained by BUYER, for the purpose of
performing the surveys. The cost of such surveys shall be shared
equally by BANK ONE and BUYER at Closing. The legal descriptions
contained in the surveys shall be used in the Limited Warranty
Deeds to convey the Owned Real Estate and for title insurance for
both the Owned Real Estate and the Leased Real Estate. BUYER
shall obtain surveys within 15 days after the effective date of
this Agreement and copies of the same shall be furnished to BANK
ONE and the title companies.
(c) Required Authorizations. BANK ONE shall obtain
and procure all necessary internal corporate approvals and
authorizations, if any, required by BANK ONE to enable it to
fully perform all obligations imposed on it hereunder which must
be performed by it at or prior to the Closing.
(d) Creation of Liens and Encumbrances. With respect
to the Owned Real Estate, BANK ONE shall not create or allow any
liens, imperfections in title, charges, easements, restrictions
or encumbrances other than the Permitted Exceptions.
(e) Condemnation. If prior to Closing all or any
portion of the Owned Real Estate or Leased Real Estate is taken
or is made subject to eminent domain or other governmental
acquisition proceedings, then BANK ONE shall promptly notify
BUYER thereof, and BUYER may either complete the Closing and
receive the proceeds paid or payable on account of such
acquisition proceedings, or terminate this Agreement as to such
Office and related assets and liabilities. If BUYER terminates
this Agreement, both parties shall thereupon be relieved from all
further obligations hereunder as to such Office and related
assets and liabilities.
(f) Insurance Proceeds, Casualty and Condemnation
Payments. BANK ONE shall maintain adequate insurance on all the
Assets consisting of Owned Real Estate, Leased Real Estate and
Fixed Assets. In the event of any damage, destruction or
condemnation affecting such Assets between the date hereof and
the time of the Closing, BANK ONE shall deliver to BUYER any
insurance proceeds and other payments, to the extent of the
applicable amount set forth in Section 1.4(a)(ii) or (iii) hereof
with respect to Owned Real Estate and the replacement cost with
respect to the Fixed Assets, as the case may be, received (or
with respect to insurance proceeds, which would be received
assuming BANK ONE's insurance policy had no deductible) by BANK
ONE as a result thereof unless, in the case of damage or
destruction, BANK ONE has repaired or replaced the damaged or
destroyed property.
(g) XXX Accounts. Not later than thirty days prior to
the expected Closing Date, BANK ONE shall, at BANK ONE's expense,
mail notice of BANK ONE's resignation as Custodian and the
appointment of BUYER as the Successor Custodian, effective upon
Closing, of each Individual Retirement Account maintained at the
Offices. The notice shall include such other information that is
mutually agreed upon by BANK ONE and BUYER.
(h) Assignment of Leases. BANK ONE shall use its
reasonable good faith efforts to obtain any written consent of
any such landlord as shall be necessary for the effective
assignment of the Third Party Lease and assumption thereof by
BUYER as of the Closing Date. The assignment and assumption by
BUYER of the Third Party Lease shall be substantially the form of
Schedule F attached hereto and incorporated herein. In the event
such necessary consent to assignments is not obtained or other
arrangements satisfactory to BANK ONE made by ______ __, 199__,
BANK ONE may, at its sole option, terminate its duties and
obligations under this Agreement as to such Office and related
assets and liabilities.
2.2 Covenants of BUYER. BUYER hereby covenants to BANK ONE
that, from the date hereof until the Closing, it will do or cause
the following to occur:
(a) Regulatory Applications. BUYER shall prepare and
submit for filing, at no expense to BANK ONE, any and all
applications, filings, and registrations with, and notifications
to, all federal and state authorities required on the part of
BUYER or any shareholder or affiliate of BUYER for the
Acquisition to be consummated at the Closing as contemplated in
Section 6.01 herein and for BUYER to operate the Offices
following the Closing. BUYER shall provide BANK ONE with a draft
copy of each application, filing, registration, and notification
for BANK ONE's approval prior to filing, which approval by BANK
ONE will not be unreasonably withheld or delayed. Such
applications will be submitted to BANK ONE in draft form within
thirty (30) days from the date of this Agreement and filed by
BUYER without delay following BANK ONE's approval of such
applications; provided, however, that in no event will such
applications be filed later than sixty (60) days from the date of
this Agreement. Thereafter, BUYER 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 Acquisition to be consummated
at such Closing and for BUYER to operate the Offices following
the Closing. BUYER shall deliver to BANK ONE 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). BUYER shall also deliver to BANK
ONE a copy of each material notice, order, opinion and other item
of correspondence received by BUYER from such federal and state
authorities (except for any confidential portions thereof) and
shall advise BANK ONE, at BANK ONE's request, of developments and
progress with respect to such matters.
(b) Required Authorizations. BUYER shall obtain and
procure all necessary corporate and other approvals and
authorizations, if any, required on its part to enable it to
fully perform all obligations imposed on it hereunder which must
be performed by it at or prior to the Closing.
(c) Satisfaction of Conditions. BUYER shall not
voluntarily undertake any course of action inconsistent with the
satisfaction of the requirements or the conditions applicable to
it, or its agreements, undertakings, obligations, or covenants
set forth in this Agreement, and it shall promptly do all such
reasonable acts and take all such reasonable measures as may be
appropriate to enable it to perform as early as possible the
agreements, undertakings, obligations, and covenants herein
provided to be performed by it, and to enable the conditions
precedent to BANK ONE's obligations to consummate the Closing of
the Acquisition to be fully satisfied. Additionally, BUYER shall
not knowingly, directly or through any existing or future
subsidiary or affiliate, take any action that would be in
conflict with, or result in the denial, delay, termination, or
withdrawal of, any of the regulatory approvals referred to in
this Agreement.
(d) Cooperation Regarding Leased Real Estate. BUYER
shall, at BANK ONE's request in connection with BANK ONE's
obtaining the consents specified in Section 2.1(h), advise, in
writing, the lessor of Leased Real Estate, of BUYER's intent to
assume and comply with the terms of the Third Party Lease (as to
matters arising from and after the Closing Date).
2.3 Covenants of All Parties. BANK ONE hereby covenants to
BUYER, and BUYER hereby covenants to BANK ONE that, from the date
hereof until the Closing, such party shall cooperate fully with
the other party in attempting to obtain all consents, approvals,
permits, or authorizations which are required to be obtained
pursuant to any federal or state law, or any federal or state
regulation thereunder, for or in connection with the transactions
described and contemplated in this Agreement.
3. REPRESENTATIONS AND WARRANTIES.
3.1 Representations and Warranties of BANK ONE. BANK ONE
represents and warrants to BUYER as follows:
(a) Good Standing and Power of BANK ONE. BANK ONE is
a national banking corporation duly organized, validly existing,
and in good standing under the laws of the State of Wisconsin
with corporate power to own its properties and to carry on its
business as presently conducted. BANK ONE is an insured bank as
defined in the Federal Deposit Insurance Act and applicable
regulations thereunder.
(b) Authorization of Agreement. The execution and
delivery of this Agreement, and the transactions contemplated
hereby, have been duly authorized by all necessary corporate
action on the part of BANK ONE, and this Agreement is a valid and
binding obligation of BANK ONE.
(c) Effective Agreement. Subject to the receipt of
any and all necessary regulatory approvals and required consents,
the execution, delivery, and performance of this Agreement by
BANK ONE and the consummation of the transactions contemplated
hereby, will not conflict with, result in the breach of,
constitute a violation or default, result in the acceleration of
payment or other obligations, or create a lien, charge or
encumbrance, under any of the provisions of Articles of
Incorporation or By-Laws of BANK ONE, under any judgment, decree
or order, under any law, rule, or regulation of any government or
agency thereof, or under any material contract, material
agreement or material instrument to which BANK ONE is subject,
where such conflict, breach, violation, default, acceleration or
lien would have a material adverse effect on the Assets or BANK
ONE's ability to perform its obligations hereunder.
(d) Title to Real Estate And Other Assets. Except for
the Owned Real Estate and Leased Real Estate, BANK ONE or an
affiliate is the sole owner of each of the Assets free and clear
of any mortgage, lien, encumbrance or restrictions of any kind or
nature. As to the Owned Real Estate, BANK ONE or an affiliate is
the sole owner of a fee simple interest in, and has good and
marketable title to, such Owned Real Estate, free and clear of
all liens, claims, encumbrances and rights of tenants in
possession except for the Permitted Exceptions and shall convey,
or cause to be conveyed, such real estate to BUYER by delivery at
the Closing of a limited warranty deed conveying such title
subject only to the Permitted Exceptions. BANK ONE or an
affiliate has a valid leasehold interest in the Leased Real
Estate pursuant, and subject to, the Third Party Lease and has
the use of the Leased Real Estate pursuant to the Third Party
Lease, which will be assigned to BUYER by delivery of an
assignment conveying such leasehold interest to BUYER at the
Closing.
(e) Zoning Variations. As of the date of this
Agreement, BANK ONE has no knowledge of receipt of, or
contemplation of any intent to provide, BANK ONE with any written
notice from any governmental authority of any uncorrected
violations of zoning and/or building codes relating to the Owned
Real Estate or Leased Real Estate.
(f) Condemnation Proceedings. BANK ONE has received
no written notice of any pending or threatened, nor is it aware
of any contemplated, condemnation proceeding affecting or
relating to the Offices.
(g) Taxes. All federal, state and local payroll,
withholding, property, sales, use and transfer taxes, if any,
which are due and payable by BANK ONE relating to the Offices
prior to the date of Closing shall be paid in full as of the
Closing Date or BANK ONE shall have made appropriate provision
for such payment in accordance with ordinary business practices.
Any claims for refunds of taxes which have been paid by BANK ONE
shall remain the property of BANK ONE.
(h) Operations Lawful. To the knowledge of BANK ONE,
the conduct of banking business at the Offices is in compliance
in all material respects with all federal, state, county and
municipal laws, ordinances and regulations applicable to conduct
of such business.
(i) Third-Party Claims. There are no actions, suits
or proceedings, pending or, to BANK ONE's knowledge, threatened
against or affecting BANK ONE which, if determined adversely to
BANK ONE, could have a material adverse effect on the aggregate
value of the banking business and Assets of the Offices.
(j) Insurance. BANK ONE maintains such insurance on
the Offices and the Fixed Assets to be purchased by or assigned
to BUYER as may be required or as is customary in the business of
banking.
(k) Labor Relations. No employee located at any of
the Offices is represented, for purposes of collective
bargaining, by a labor organization of any type. BANK ONE has no
knowledge of any efforts during the past three years to unionize
or organize any employees at any Office, and no material claim
related to employees at the Offices under the Fair Labor
Standards Act, National Labor Relations Act, Civil Rights of
1964, Xxxxx-Xxxxx Act, Xxxxx Xxxxx Act, Civil Rights of Act of
1866, Age Discrimination in Employment Act, Equal Pay Act of
1963, Executive Order No. 11246, Federal Unemployment Tax Act,
Vietnam Era Veterans Readjustment Act, Occupational Safety and
Health Act, Americans with Disabilities Act or any state or local
employment related law, order, ordinance or regulation, no unfair
labor practice, discrimination or wage-and-hour claim is pending
or, to the best of BANK ONE's knowledge, threatened against or
with respect to BANK ONE.
(l) Governmental Notices. BANK ONE has not received
notice from any federal or state governmental agency indicating
that it would oppose or not grant or issue its consent or
approval, if required, with respect to the transactions
contemplated by this Agreement.
(m) Environmental. To the knowledge of BANK ONE,
there are no actions, proceedings or investigations pending
before any environmental regulatory body, federal or state court
with respect to or threatened against or affecting BANK ONE in
respect of any Office under the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended
("CERCLA"), or under the any federal, state, local or municipal
environmental statute, ordinance or regulation in respect thereof
and in connection with any release of any toxic or "hazardous
substance," pollutant or contaminant into the "environment," nor,
to the best knowledge of the executive officers of BANK ONE, is
there any reasonable basis for the institution of any such
actions or proceedings or investigations which is probable of
assertion, nor are there any such actions or proceedings or
investigations in which BANK ONE is a plaintiff or complainant.
To the knowledge of BANK ONE, BANK ONE is not responsible in any
material respect under any applicable environmental law for any
release by BANK ONE or for any release by an other "Person" at or
in the vicinity of any Office of a hazardous or toxic substance,
contaminant or pollutant caused by the spilling, leaking,
pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, dumping or disposing of hazardous wastes or
other chemical substances, pollutants or contaminants into the
environment, nor is BANK ONE responsible for any material costs
(as a result of the acts or omissions of BANK ONE, or, to the
actual knowledge of the executive officers of BANK ONE, as a
result of the acts or omissions of any other "person") of any
remedial action including, without limitation, costs arising out
of security fencing, alternative water supplies, temporary
evacuation and housing and other emergency assistance undertaken
by any environmental regulatory body having jurisdiction over
BANK ONE to prevent or minimize any actual or threatened release
by BANK ONE on premises any hazardous wastes or other chemical
substances, pollutants and contaminants into the environment
which would endanger the public health or the environment. All
terms contained in quotation marks in this paragraph and the
paragraph immediately following shall have the meaning ascribed
to such terms as defined in all federal, state and local
statutes, regulations or ordinances.
(n) Access to Real Estate. To the knowledge of BANK
ONE, no fact or condition exists which would result in the
termination or impairment of access to the Owned Real Estate from
adjoining public or private streets or ways or which could result
in discontinuation of necessary sewer, water, electric, gas,
telephone, or other utilities or services and sewage, sanitation,
plumbing, refuse disposal, and similar facilities servicing the
Owned Real Estate are in full compliance with applicable
governmental regulations.
(o) Mechanic's Liens. BANK ONE has paid or will pay
in full all bills and invoices for labor and material of any kind
arising from the ownership, operation, management, repair,
maintenance, or leasing as tenant of the Owned Real Estate and
the Leased Real Estate, and no actual or potential mechanic's
lien or other claims are outstanding or available to any party in
connection with the ownership, operation, management, repair,
maintenance, or leasing as tenant of said properties.
(p) Deposit. Attached as Schedule G hereto is a true
and accurate schedule of all Deposit Accounts (including
individual retirement accounts) domiciled at the Offices,
prepared as of a date within thirty (30) days prior to the date
of this Agreement, listing by Office and by category the amount
of all deposits and the interest rates and maturity dates
associated with such deposits, and indicating the deposits that
constitute Core Deposits.
(q) Office Loans. Attached hereto as Schedule H is a
true and accurate schedule of all Office Loans, including accrued
and unpaid interest thereon and any and all late fees and other
fees relating thereto, computed as of a date within thirty (30)
days prior to the date of this Agreement, excluding, however,
such Office Loans which are more than 60 days past due for
payment of principal or interest.
(r) Personal Property. Schedule C is a preliminary
listing of Fixed Assets owned by BANK ONE and located at the
Offices, which is subject to non-material change prior to the
Closing Date. A final listing of Fixed Assets will be provided
to BUYER by BANK ONE prior to the Closing Date.
(s) Assumed Contracts and Third Party Lease.
Schedule D is a true and accurate schedule of all Assumed
Contracts related to the Offices. Each Assumed Contract is valid
and subsisting and in full force and effect in accordance with
its terms.
(t) FIRPTA. BANK ONE is not a "foreign person" within
the meaning of the Internal Revenue Code 1445.
(u) For purposes of this section 3.1, the "knowledge"
of BANK ONE shall mean the actual knowledge of the President of
BANK ONE.
3.2 Representations and Warranties of BUYER. BUYER
represents and warrants to BANK ONE as follows:
(a) Good Standing and Power of BUYER. BUYER is a
Wisconsin banking corporation duly organized, validly existing,
and in good standing under the laws of the State of Wisconsin
with corporate power to own its properties and to carry on its
business as presently conducted. BUYER is an insured bank, as
defined in the Federal Deposit Insurance Act and applicable
regulations thereunder.
(b) Authorization of Agreement. The execution and
delivery of this Agreement, and the transactions contemplated
hereby, have been duly authorized by all necessary corporate
action on the part of BUYER, and this Agreement is a valid and
binding obligation of BUYER.
(c) Effective Agreement. Subject to the receipt of
any and all necessary regulatory approvals, the execution,
delivery, and performance of this Agreement by BUYER, and the
consummation of the transactions contemplated hereby, will not
conflict with, result in the breach of, constitute a violation or
default, result in the acceleration of payment or other
obligations, or create a lien, charge or encumbrance, under any
of the provisions of the Articles of Association or By-Laws of
BUYER, under any judgment, decree or order, under any law, rule
or regulation of any government or agency thereof, or under any
material agreement, material contract or material instrument to
which BUYER is subject, where such conflict, breach, violation,
default, acceleration or lien would have a material adverse
effect on BUYER's ability to perform its obligations hereunder.
4. ACTIONS RESPECTING EMPLOYEES AND PENSIONS AND EMPLOYEE
BENEFIT PLANS.
4.1 Employment of Employees.
(a) BUYER shall extend offers of employment, as of the
Closing Date, to such employees of the Offices listed in Schedule
R as may be employed by BANK ONE at the Offices 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 BANK ONE as of the
Closing Date, and for a base salary not less than that paid by
BANK ONE as of the Closing Date. Employees accepting employment
with BUYER, including but not limited to the Leave Employees, are
referred to herein individually and collectively as the
"Transferred Employees". In the event that BUYER shall transfer
(except in a comparable position and for comparable compensation
to an office not more than 35 miles from the 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, BUYER 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 BANK ONE applicable to the
Terminated Employee as of the date hereof and set forth in
Schedule R or the severance plan of BUYER 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 Buyer and any
Transferred Employee from entering into an agreement satisfactory
to both Buyer and the Transferred Employee providing for
resolution of matters set forth in this section.
(b) BANK ONE will cooperate with BUYER, to the extent
reasonably requested and legally permissible, to provide BUYER
with information about the employees of the Offices including,
without limitation, providing BUYER with the personnel files of
those employees of the Offices who provide BANK ONE with their
written consent thereto, and a means to meet with the subject
employees. BUYER hereby agrees to indemnify and to hold BANK ONE
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.
4.2 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 BUYER's policies, procedures, and programs; provided,
however, that BUYER 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 BANK ONE 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 BUYER. BUYER shall provide such
Transferred Employees with credit for the Transferred Employee's
period of service with BANK ONE (including any service credited
from predecessors by merger or acquisition to BANK ONE) 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 BUYER'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 shall be eligible to
participate in the medical, dental, or other welfare plans of
BUYER, 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 BUYER'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 BUYER the same
or a substantially equivalent position to his or her position
with BANK ONE prior to having gone on leave.
(e) Except as provided herein, BANK ONE 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
BANK ONE'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 BUYER. From and after the Closing Date, BUYER 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 BUYER 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 BUYER's applicable 401(k) plan, BANK ONE and BUYER shall
cooperate in arranging for the transfer to BUYER's 401(k) plan,
as soon as practicable after the Closing Date and in a manner
that satisfies sections 414(l) and 411(d)(6) of the Internal
Revenue Code, as amended, of those accounts held under BANK ONE's
401(k) plan on behalf of Transferred Employees.
4.3 Compliance with Law. BUYER 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. BUYER hereby
agrees to indemnify and to hold BANK ONE 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 BUYER to comply
with its obligations as set forth in this section.
4.4 Actions to be Taken by BANK ONE. BANK ONE covenants to
BUYER that it will do or cause the following to occur:
(a) Solicitation of Transferred Employees. Except
with the written consent of BUYER, for a period of twelve months
following the Closing Date, BANK ONE will not directly solicit
Transferred Employees as prospective officers or employees of
BANK ONE; provided, however, that BANK ONE shall not be
prohibited or restricted from hiring a Transferred Employee if
such Transferred Employee contacts BANK ONE or an affiliate or
the parent organization of BANK ONE to seek hiring or retention,
whether in response to general advertising or otherwise, or if a
Transferred Employee is terminated by BUYER.
(b) Employee Benefit Programs. BANK ONE's obligations
to employees of the Offices, including Transferred Employees,
will be as set forth in established policies of BANK ONE
CORPORATION and/or BANK ONE, and BANK ONE shall continue its
employee benefit programs in full force and effect as benefit
programs for Transferred Employees through the Closing Date.
After the Closing, BANK ONE shall retain the responsibility and
liability for the funding and payment of all claims incurred
under such employee benefit programs through the Closing Date.
BUYER 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
BANK ONE, except with respect to eligibility and vesting as set
forth in Section 4.02, above.
(c) Employees of the Offices. BANK ONE shall not,
without BUYER's prior written consent (i) increase the aggregate
full-time equivalent size of the work force at the Offices above
the aggregate normal staffing levels designated by BANK ONE for
the Offices 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 BANK
ONE or otherwise pursuant to existing BANK ONE policies or
procedures, or (iii) increase the compensation of any Transferred
Employee except pursuant to existing BANK ONE policies and
procedures.
The obligations of BANK ONE and BUYER pursuant to this
Section 4.1 through 4.4 shall survive the Closing.
5. CONDITIONS PRECEDENT TO CLOSING.
5.1 Conditions to BANK ONE's Obligations. The obligations
of BANK ONE to consummate the Acquisition are subject to the
satisfaction, or the waiver in writing by BANK ONE to the extent
permitted by applicable law, of the following conditions at or
prior to the Closing:
(a) Prior Regulatory Approval. All filings and
registrations with, and notifications to, all federal and state
authorities required for consummation of the Acquisition shall
have been made, all approvals and authorizations of all federal
and state authorities required for consummation of the
Acquisition shall have been received and shall be in full force
and effect, and all applicable waiting periods shall have passed.
(b) Corporate Action. The Board of Directors of BUYER
shall have taken all corporate action necessary by it to
effectuate this Agreement and the Acquisition and BUYER shall
have furnished BANK ONE with a certified copy of each such
resolution adopted by the Board of Directors of BUYER evidencing
the same.
(c) Representations and Warranties. The
representations and warranties of BUYER set forth in this
Agreement shall be true and correct in all material respects on
the Closing Date with the same effect as though all such
representations and warranties had been made on and as of such
date, and BUYER shall have delivered to BANK ONE a Certificate to
that effect, dated as of the Closing Date to the effect specified
in Schedule I to this Agreement.
(d) Covenants. Each and all of the covenants and
agreements of BUYER to be performed or complied with at or prior
to Closing pursuant to this Agreement shall have been duly
performed or complied with in all material respects by BUYER, or
waived by BANK ONE, and BUYER shall have delivered to BANK ONE a
Certificate to that effect, dated as of the Closing Date to the
effect specified in Schedule I to this Agreement.
(e) No Proceeding or Prohibition. At the time of the
Closing, there shall not be any litigation, investigation,
inquiry, or proceeding pending or threatened in or by any court
or agency of any government or by any third party which in the
judgment of the executive officers of BANK ONE, with the advice
of counsel, presents a bona fide claim to restrain, enjoin, or
prohibit consummation of the transaction contemplated by this
Agreement or which might result in rescission in connection with
such transactions; and BANK ONE shall have been furnished with a
Certificate, substantially in the form as specified in Schedule I
to this Agreement, dated as of the Closing Date and signed by the
Chairman, President, or an Executive Vice President and Secretary
or Assistant Secretary of BUYER, to the effect that no such
litigation, investigation, inquiry, or proceeding is pending or,
to the best of their knowledge, threatened.
(f) Opinion of Counsel. BUYER shall have delivered to
BANK ONE an opinion, dated as of the Closing Date, of legal
counsel reasonably satisfactory to BANK ONE and its counsel, in
form and substance reasonably satisfactory to BANK ONE and its
counsel, to the effect specified in Schedule J to this Agreement.
(g) Receipt of Consents of Third Parties. BANK ONE
shall have received, in form and substance satisfactory to BANK
ONE, any and all consents, approvals or waivers of third parties
as BANK ONE, in its sole discretion, may deem necessary or
appropriate to enable it to consummate the transactions
contemplated by this Agreement without additional cost, expense,
or liability to BANK ONE or its affiliates.
5.2 Conditions to BUYER's Obligations. The obligations of
BUYER to consummate the Acquisition are subject to the
satisfaction, or the waiver in writing by BUYER to the extent
permitted by applicable law, of the following conditions at or
prior to the Closing:
(a) Prior Regulatory Approval. All filings and
registrations with, and notifications to, all federal and state
authorities required for consummation of the Acquisition and
operation of the Offices by BUYER shall have been made, all
approvals and authorizations of all federal and state authorities
required for consummation of the Acquisition and operation of the
Offices by BUYER shall have been received and shall be in full
force and effect, and all applicable waiting periods shall have
passed.
(b) Corporate Action. The Board of Directors of BANK
ONE shall have taken all corporate action necessary to effectuate
this Agreement and the Acquisition; and BANK ONE shall have
furnished BUYER with a certified copy of each such resolution
adopted by the Board of Directors of BANK ONE evidencing the
same.
(c) Representations and Warranties. The
representations and warranties of BANK ONE set forth in this
Agreement shall be true and correct in all material respects on
the Closing Date with the same effect as though all such
representations and warranties had been made on and as of such
date (unless a different date is specifically indicated in such
representations and warranties), and BANK ONE shall have
delivered to BUYER a Certificate to that effect, dated as of the
Closing Date to the effect specified in Schedule K to this
Agreement.
(d) Covenants. Each and all of the covenants and
agreements of BANK ONE to be performed or complied with pursuant
to this Agreement shall have been duly performed or complied with
in all material respects by BANK ONE, or waived by BUYER, and
BANK ONE shall have delivered to BUYER a Certificate to that
effect, dated as of the Closing Date to the effect specified in
Schedule K to this Agreement.
(e) No Proceedings or Prohibitions. At the time of
the Closing, there shall not be any litigation, investigation,
inquiry, or proceeding pending or threatened in or by any court
or agency of any government or by any third party which in the
judgment of the executive officers of BUYER, with the advice of
counsel, presents a bona fide claim to restrain, enjoin, or
prohibit consummation of the transactions contemplated by this
Agreement or which might result in rescission in connection with
such transactions; and BUYER shall have been furnished with a
Certificate, in substantially the form specified in Schedule K to
this Agreement, dated as of the Closing Date and signed by the
Chairman, President, or Vice President, and the Secretary or
Assistant Secretary of BANK ONE, to the effect that no such
litigation, investigation, inquiry, or proceeding is pending or
threatened to the best of their knowledge.
(f) Opinion of Counsel. BANK ONE shall have delivered
to BUYER an opinion, dated as of the Closing Date, of legal
counsel reasonably satisfactory to BUYER and its counsel, in form
and substance reasonably satisfactory to BUYER and its counsel,
to the effect specified in Schedule L to this Agreement.
(g) Real Property. The Title Commitment (as defined
in Section 2.1(b) herein) shall have been delivered to BUYER, and
updated to or as close as practicable to (but in no event more
than five (5) business days prior to) the Closing Date, in
accordance with the terms of such Section, and such updated Title
Commitment shall not include any special exceptions other than
those set forth in the original Title Commitment and any other
Permitted Exceptions.
(h) Fixed Assets. There shall have been no material
alteration in or adjustment to the Fixed Assets. For purposes of
this subsection (h), it will not be considered to be a material
alteration or adjustment to the Fixed Assets if (i) there is
damage or destruction to the Fixed Assets as contemplated by
Section 2.1(f) herein and BANK ONE complies with said
Section 2.1(f), (ii) BANK ONE makes additions to the Fixed Assets
with the prior written consent of BUYER or (iii) BANK ONE makes
additions to the Fixed Assets without BUYER's consent in order to
correct emergency situations which are threatening to impair BANK
ONE's operations at an Office.
5.3 Non-Satisfactions of Conditions Precedent. The non-
occurrence or delay of the Closing of the Acquisition by reason
of the failure of timely satisfaction of all conditions precedent
to the obligations of any party hereto to consummate the
Acquisition shall in no way relieve such party of any liability
to the other party hereto, nor be deemed a release or waiver of
any claims the other party hereto may have against such party, if
and to the extent the failure of timely satisfaction of such
conditions precedent is attributable to the actions or inactions
of such party.
5.4 Waivers of Conditions Precedent. The conditions
specified in Sections 5.1 and 5.2 herein shall be deemed
satisfied or, to the extent not satisfied, waived if the Closing
occurs unless such failure of satisfaction is reserved in a
writing executed by BUYER and BANK ONE at or prior to the
Closing.
6. CLOSING.
6.1 Closing and Closing Date. The Acquisition contemplated
by this Agreement shall be consummated and closed (the "Closing")
at such location as shall be mutually agreed upon by BUYER and
BANK ONE, on a date to be mutually agreed upon by BUYER and BANK
ONE which date is after all required regulatory approvals have
been obtained and all applicable regulatory waiting periods
associated therewith have expired. The precise date on which the
Closing shall occur (the "Closing Date") shall be confirmed by
the parties in writing not less than five (5) days after
receiving all required regulatory approvals.
6.2 BANK ONE's Actions at Closing. At the Closing (unless
another time is specifically stated in Section 6.4 hereof), BANK
ONE shall, with respect to the Offices:
(a) deliver to BUYER at the Offices such of the Assets
purchased hereunder as shall be capable of physical delivery,
including, without limitation, all assets comprising the safe
deposit box business, if any, of the Offices; and
(b) execute, acknowledge and deliver to BUYER all such
limited warranty deeds (qualified, as necessary, to reflect all
Permitted Exceptions), endorsements, 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
BUYER hereunder and such other documents as the title company may
reasonably require; the originals of all blueprints, construction
plans, specifications and plat relating to the Owned Real Estate,
which are now in BANK ONE's possession or which BANK ONE has
reasonable access to; and such other documents or instruments as
may be reasonably required by BUYER, required by other provisions
of this Agreement, or reasonably necessary to effectuate the
Closing ;
(c) execute, acknowledge and deliver to BUYER a duly
executed and recordable assignment to BUYER of the Third Party
Lease and a consent to assignment from the landlord of the Third
Party Lease all in substantially the form as set forth in
Schedule F attached hereto and incorporated herein by reference;
(d) assign, transfer, and make available to BUYER such
of the following records as exist and are available and
maintained at the Offices (in whatever form or medium then
maintained by BANK ONE) pertaining to the Deposit Liabilities and
Office Loans:
(i) signature cards and XXX plan and account
documents (which will be provided on separate CD-ROMs and
delivered directly to BUYER from SELLER's image storage vendor.
BUYER shall contract directly with such vendor, at BUYER's
expense, to obtain paper copies of electronically stored
documents); and
(ii) other orders, contracts, and agreements
between BANK ONE and depositors of the Offices and borrowers with
respect to Office Loans, and records of similar character (which
may be provided, at the option of BANK ONE, in electronic format
on CD-ROM or otherwise) excepting, specifically; a) W8, and W9
forms which BUYER may obtain from customers, b) internally
generated CTR forms, and c) retail loan credit information (for
which no paper-based documents are maintained by BANK ONE); and
(iii) a trial balance listing of records of
account.
(e) assign, transfer, and deliver to BUYER such safe
deposit and safekeeping files and records (in whatever form or
medium then maintained by BANK ONE) pertaining to the safe
deposit business of the Offices transferred to BUYER hereunder as
exist and are available, together with the contents of the safe
deposit boxes maintained at the Offices, as the same exist as of
the close of business on the day immediately preceding the
Closing Date (subject to the terms and conditions of the leases
or other agreements relating to the same) and all securities and
other records, if any, held by the Offices for their customers as
of the close of business on the day immediately preceding the
Closing Date (subject to the terms and conditions of the
agreements or receipts relating to the same); and
(f) make available and transfer to BUYER on the
Closing Date and prior to the conclusion of the Closing any funds
required to be paid to BUYER pursuant to the terms of this
Agreement; and
(g) execute, acknowledge and deliver to BUYER all
Certificates and other documents required to be delivered to
BUYER by BANK ONE at the Closing pursuant to the terms of this
Agreement; and
(h) assign by endorsement substantially in a form as
provided in Schedule M attached hereto, transfer and deliver to
BUYER the contract, promissory note or other evidence of
indebtedness related to the Office Loans together with the loan
file and records (in whatever form or medium then maintained by
BANK ONE) pertaining to such Office Loans; and
(i) assign to BUYER all BANK ONE's rights in and to
the Assumed Contracts which are assignable and which constitute
part of the Assets.
6.3 BUYER's Actions at the Closing. At the Closing (unless
another time is specifically stated in Section 6.4 hereof), BUYER
shall, with respect to the Offices:
(a) execute, acknowledge, and deliver to BANK ONE, to
evidence the assumption of the liabilities and obligations of
BANK ONE by BUYER hereunder, an instrument of assumption in the
form set forth in Schedule N to this Agreement, and BANK ONE
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 BUYER by BANK ONE
hereunder and BUYER shall be responsible for coordinating with
the title companies to effectuate the recording of limited
warranty deeds on or after Closing and securing GAP insurance
coverage in the event the limited warranty deeds are recorded
post-closing, at BUYER'S sole cost and expense; and
(c) execute and deliver to BANK ONE such written
receipts for the Assets, properties, records, and other materials
assigned, transferred, conveyed, or delivered to BUYER hereunder
as BANK ONE may reasonably have requested at or before the
Closing;
(d) pay to BANK ONE on the Closing Date and prior to
the conclusion of the Closing any funds required to be paid to
BANK ONE at the Closing pursuant to the terms of this Agreement;
(e) execute, acknowledge and deliver to BANK ONE all
Certificates and other documents required to be delivered to BANK
ONE by BUYER at the Closing pursuant to the terms hereof;
(f) execute, acknowledge and deliver to BANK ONE an
agreement wherein BUYER assumes obligations with respect to the
Third Party Lease and Assumed Contracts and the IRA's for all
periods following the Closing Date with respect thereto; and
(g) execute, acknowledge and deliver the Letter of
Credit Indemnity Agreement, pertaining to letters of credit
included in the Office Loans, in the form as attached to Schedule
S herein.
6.4 Methods of Payment. Subject to the adjustment
procedures set forth in this Section 6.4, the transfer of the
funds, if any, due to BUYER or to BANK ONE, as the case may be,
as set forth pursuant to the terms of Section 1.4(a) hereof,
shall be made on the Closing Date in immediately available United
States Federal Funds. At least two business days prior to the
Closing, BANK ONE and BUYER shall provide written notice to one
another indicating the account and bank to which such funds shall
be wire transferred. In order to facilitate the Closing, the
parties agree: (i) that the amount of funds transferred on the
Closing Date, pursuant to Section 1.4(a) hereof, shall be
computed based upon (a) the aggregate book value plus accrued
interest of the Office Loans as of the close of business on a day
to be agreed between the parties, not more than seven (7)
business days preceding the Closing Date, (b) cash on hand at the
Offices as of the close of business on a day to be agreed between
the parties, not more than seven (7) business days preceding the
Closing Date, and (c) the aggregate balance of all Deposit
Accounts (including interest posted or accrued to such accounts
and Individual Retirement Accounts which have become IRAs as a
result of the written appointment of BUYER as the successor
custodian and the failure of the account holders to object to
such appointment) as of the close of business on a day to be
agreed between the parties, not more than seven (7) business days
preceding the Closing Date, and the parties shall execute a
Preliminary Closing Statement in substantially the form set forth
in Schedule P attached. Furthermore, within ten (10) business
days after the Closing, the parties shall make appropriate post
closing adjustments, consistent with the provisions of Section
1.4 hereof, based upon actual Deposit Accounts as of the Closing
Date, Office Loans as of the Closing Date, and cash transactions
which took place on the Closing Date or which took place prior to
the Closing Date but which were not reflected in the Preliminary
Closing Statement, and shall execute the Final Settlement
Statement in substantially the form set forth in Schedule Q
attached. In addition, prorations of prepaid and deferred income
and expenses that cannot be reasonably calculated at the Closing
shall be settled and paid based on actual amounts and
calculations as soon as possible after the Closing.
6.5 Availability of Closing Documents. The documents
proposed to be used and delivered at the Closing shall be made
available for examination by the respective parties not later
than 12:00 noon, Ohio time, on the tenth Business Day prior to
the Closing Date.
6.6 Effectiveness of Closing. Upon the satisfactory
completion of the Closing, which does not include and shall not
require completion of the adjustment and proration arrangements
set forth in Section 6.4, the Acquisition shall be deemed to be
effective and the Closing shall be deemed to have occurred.
7. CERTAIN TRANSITIONAL MATTERS.
7.1 Transitional Action by BUYER. After the Closing,
unless another time is otherwise indicated:
(a) BUYER shall: (i) pay in accordance with the law
and customary banking practices and applicable Deposit Account
contract terms, all properly drawn and presented checks,
negotiable orders of withdrawal, drafts, debits, and withdrawal
orders presented to BUYER by mail, over the counter, through
electronic media, or through the check clearing system of the
banking industry, by depositors of the Deposit Accounts assumed
by BUYER hereunder, whether drawn on checks, negotiable orders or
withdrawal, drafts, or withdrawal order forms provided by BUYER
or BANK ONE; and (ii) in all other respects discharge, in the
usual course of the banking business, the duties and obligations
of BANK ONE with respect to the balances due and owing to the
depositors whose Deposit Accounts are assumed by BUYER hereunder;
provided, however, that any obligations of BUYER pursuant to this
Section 7.1 to honor checks, negotiable orders of withdrawal,
drafts, and withdrawal orders on forms provided by BANK ONE 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 BUYER more than one
hundred eighty (180) days following the Closing Date, or (ii) on
which a stop payment has been requested by the deposit customer.
BUYER shall submit and file any required reports on IRS Form 1099
with respect to interest accrued on Deposit Liabilities after the
Closing Date. The provisions of this subsection 7.1(a) shall in
no way limit BUYER's duties or obligations arising under
Section 1.3(b) hereof.
(b) BUYER 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
ten days prior to the Closing Date, notify all depositors of the
Offices by letter, acceptable to BANK ONE, 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 BUYER's pending assumption of
the Deposit Liabilities hereunder, and, in appropriate instances,
notify depositors that on and after the Closing Date certain BANK
ONE deposit-related services and/or BANK ONE'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, BUYER may furnish appropriate
depositors with brochures, forms and other written materials
related or necessary to the assumption of the Deposit Accounts by
BUYER and the conversion of said accounts to BUYER accounts,
including the provision of checks to appropriate depositors using
the forms of BUYER with instructions to such depositors to
utilize such BUYER checks on and after the Closing Date and
thereafter to destroy any unused checks on BANK ONE's forms. The
expenses of the printing, processing and mailing of such letter
notices and providing new BUYER checks and other forms and
written materials to appropriate customers shall be borne by
BUYER. Before Closing, except as provided in this paragraph,
BUYER will not contact BANK ONE'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, BUYER shall provide, at no cost to BANK
ONE, 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 Deposit
Accounts and the Office Loans 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 BANK ONE and shall be
subject to the written approval of BANK ONE prior to delivery to
any third party. BUYER shall provide, at its sole cost and
expense and at no cost or expense to BANK ONE, that any and all
customer and other notices, communications, and filings provided
by BUYER hereunder, including the substance and timing of same,
fully comply with the requirements of applicable law and
regulation.
(c) BUYER shall promptly pay to BANK ONE an amount
equivalent to the amount of any checks, negotiable orders of
withdrawal, drafts, withdrawal orders, or returned items (net of
the applicable Acquisition Consideration paid by BUYER with
respect to the Deposit Liabilities represented by any such
instrument) credited as of the close of business on the Closing
Date to a Deposit Account assumed by BUYER hereunder which are
returned uncollected to BANK ONE after the Closing Date. The
foregoing shall include an amount equivalent to holds placed upon
such deposit account for items cashed by BANK ONE as of the close
of business on the Closing Date.
(d) All tasks and obligations concerning the provision
of data processing services to or for the Offices after the
Closing, other than those specifically set forth in, and to the
extent assumed by BANK ONE pursuant to, Section 7.2(b) herein, if
any, are the sole and exclusive responsibility of, and shall be
performed solely and exclusively by, BUYER.
(e) BUYER 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 Deposit
Liabilities for which BANK ONE had provided similar security.
(f) BUYER shall, as soon as practicable but not more
than 10 business days after the Closing Date, prepare and
transmit at BUYER's expense to each of the obligors on Office
Loans transferred to BUYER pursuant to this Agreement a notice to
the effect that the loan has been transferred and directing that
payment be made to BUYER at the address specified by BUYER, with
BUYER's name as payee on any checks or other instruments used to
make payments, and, with respect to such loan on which a payment
notice or coupon book has been issued, to issue a new notice or
coupon book reflecting the name and an address of BUYER as the
person to whom and place at which payments are to be made. BUYER
shall submit and file any required reports on IRS Form 1098 with
respect to interest collected on Office Loans for the full
calendar year in which the Closing Date occurs including interest
collected during the period prior to the Closing Date.
(g) If the balance due on any Office Loan transferred
to BUYER pursuant to this Agreement has been reduced by BANK ONE
as a result of a payment by check or draft received prior to the
close of business on the Closing Date, which item is returned
unpaid to BANK ONE after the day immediately preceding the
Closing Date, the asset value represented by the loan transferred
shall be correspondingly increased and an amount in cash equal to
such increase shall be promptly paid by BUYER to BANK ONE.
(h) BUYER shall use its best efforts to cooperate with
BANK ONE in assuring an orderly transition of ownership of the
Assets and responsibility for the liabilities, including the
Deposit Liabilities, assumed by BUYER hereunder.
(i) BUYER hereby grants to BANK ONE and its
contractors access to the Offices until 8:00 A.M. local time on
the day following the Closing Date or such other later date and
time as the parties may agree, at no cost or expense to BANK ONE,
for conduct of activities consistent with this Agreement in
conjunction with the transactions contemplated hereby.
(j) The duties and obligations of Buyer in this
section 7.1 shall survive the Closing.
7.2 Transitional Actions by BANK ONE. After the Closing,
unless another time is otherwise indicated:
(a) BANK ONE shall use its best efforts to cooperate
with BUYER in assuring an orderly transition of ownership of the
Assets and responsibility for the liabilities, including the
Deposit Liabilities, assumed by BUYER hereunder. BANK ONE shall
provide final statements as of the Closing Date, in conjunction
with appropriate Deposit Liabilities, with interest and service
charges pro-rated to close of business on the Closing Date. BANK
ONE shall submit and file any required reports on IRS Form 1099
with respect to interest paid on Deposit Liabilities through the
Closing Date. BANK ONE shall provide to BUYER information
regarding interest collected on Office Loans during the calendar
year in which the Closing Date occurs, up to and including the
Closing Date.
(b) BANK ONE's sole and exclusive responsibilities
concerning the provision of data processing services to or for
the Deposit Accounts of the Offices after the Closing Date, if
any, shall be as set forth in this Section 7.2(b). As soon as
practicable following the date of this Agreement, BANK ONE shall
provide BUYER with applicable product functions and
specifications relating to the data processing support required
for the Deposit Accounts, Office Loans, and safe deposit business
(if such data processing support currently is provided with
respect to such business) maintained at the Offices (such Deposit
Accounts, Office Loans and safe deposit business, if applicable,
hereinafter called the "Accounts"). As soon as practicable
following the date of this Agreement, BANK ONE shall provide to
BUYER file formats relating to the Accounts and up to three (3)
sets of test tapes related to the Accounts in generic form which
are machine readable on IBM (or IBM compatible) equipment or
which shall be on eighteen track 3480 cartridges (non-compressed
data) or on nine channel 6250 B.P.I. EBCDIC formatted tape. By
not later than 3:00 P.M. local Columbus, Ohio, time on the day
immediately following the Closing Date, BANK ONE shall make the
foregoing documents and materials available for pick-up by BUYER
at Columbus, Ohio. BUYER shall review and analyze such materials
including, but not limited to, the file formats and tapes, and
shall advise BANK ONE in writing of any defects or concerns
relating thereto not later than 10 business days following
receipt thereof.
(c) Prior to the Closing Date, BANK ONE shall
cooperate with BUYER, at BUYER's expense and at no expense to
BANK ONE, in making Transferred Employees available at reasonable
times for whatever program of training BUYER deems advisable;
provided, however, that BUYER 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. BUYER shall make request of BANK ONE for
training opportunities prior to the Closing Date, and shall
reimburse BANK ONE 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 BANK ONE 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 BANK
ONE.
(d) BANK ONE shall cooperate with BUYER, at no expense
to BANK ONE, to make provision for the installation of teller and
platform equipment in the Offices subject to approval by BANK
ONE; provided, however, that BUYER 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 BANK ONE or the Offices.
(e) BANK ONE shall resign as custodian of each XXX
account maintained at the Offices and assign the custodianship of
such accounts to BUYER upon Closing subject to receipt of
applicable customer consents and other provisions of this
Agreement including the provisions of section 8.10 hereof.
(f) BANK ONE 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 BANK
ONE and BUYER may agree. Such terminations will be preceded by
the notice described in Section 7.1(b) herein. BANK ONE 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 Deposit Accounts following the Closing
and, further, BUYER shall assume all responsibility and liability
with respect thereto following the Closing. BANK ONE will
continue to redirect and/or pass through relevant ACH
transactions on Deposit Accounts for a period of ninety (90) days
following the Closing Date.
(g) As of the opening of business on the first
business day after the Closing Date, BANK ONE and BUYER 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 Deposit Liabilities and/or the Office Loans
(hereinafter collectively referred to as "Paper Items"). BUYER
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 BUYER
with the result that such Paper Items are presented to BANK ONE,
by not later than 3:00 p.m. local time on each business day
following the Closing and continuing for ninety (90) days after
the Closing, BANK ONE will make available to BUYER for pick up
from BANK ONE's offices or the offices of BANK ONE's agent and/or
processor at Indianapolis, Indiana, all of the Paper Items which
are received by BANK ONE 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 time BANK ONE shall also
make available to BUYER 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 BANK ONE for each of the Deposit
Accounts and/or the Office Loans. BUYER shall initiate
appropriate Notification of Change requests relating to
appropriate routing matters at the sole expense of BUYER within
30 days following the Closing Date. Each business day BANK ONE
will endeavor to see that the sum of (a) the actual Paper Items
provided to BUYER plus (b) all ACH items and ATM transactions
captured by BANK ONE in its information and records balance with
the sum of (c) the information and records, including but not
limited to systems printouts, provided by BANK ONE 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 Deposit Accounts
and/or the Office Loans.
Except as otherwise expressly provided herein, BANK ONE shall
provide the foregoing at no charge to BUYER for a period not to
exceed thirty (30) days from the Closing Date except that BUYER
shall pay any charges assessed to BANK ONE by the FRB, a national
or local clearinghouse and/or BANK ONE's agent and/or processor
to the extent such assessments relate to the Deposit Accounts.
BUYER shall be responsible for pick up of the data to be provided
by BANK ONE and shall compensate BANK ONE for activity subsequent
to the referenced 30 day period as follows; $50.00 per day and
$.25 per item for days 31 through 60, and $100.00 per day and
$.50 per item for days 61 through 90. Any request for extension
of the 90 day period shall be submitted in writing by BUYER to
BANK ONE not later than 10 business days prior to the expiration
of such 90 day period or any extensions thereof and shall be
subject to approval by BANK ONE at its sole discretion. Fees for
activity subsequent to the 90 day period shall be as determined
by BANK ONE. 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, BUYER shall be
responsible for processing any and all ACH returns, received
subsequent to the Closing, directly through the appropriate
Federal Reserve Bank.
BANK ONE and BUYER 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 Section 7.2(g)
might be effected promptly.
BANK ONE shall not be liable to BUYER for any failure to provide
the data required by this Section 7.2(g) to the extent any such
failure results from causes beyond BANK ONE'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
BANK ONE and/or its agent processor has been unable to process
inclearings from the FRB or such clearinghouse.
(h) BANK ONE 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 Offices and all borrowers of any Office Loan by letter
acceptable to BUYER, 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 BUYER's pending assumption of the
Deposit Liabilities and acquisition of the Office Loans
hereunder, and, in appropriate instances, notify depositors that
on and after the Closing Date certain BANK ONE deposit-related
services and/or BANK ONE'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 BANK ONE. Anything to the contrary herein
notwithstanding, nothing in this Agreement shall be deemed to
constitute an assumption by BANK ONE of the duties and
obligations of BUYER with respect to the provision of applicable
notices, communications, and filings relating to changes in the
terms of any Deposit Accounts or Office Loans as set forth in
this Agreement.
(i) For a period of sixty (60) days after the Closing
Date, BANK ONE will forward to BUYER, within two (2) business
days of receipt, loan payments received by BANK ONE with respect
to the Office Loans. BUYER will forward, within two (2) business
days of receipt payments received by BUYER with respect to any
loans not assigned to BUYER under this Agreement. BUYER and BANK
ONE further agree to refer customers to the offices of the other
when such customers present payments over the counter to the
party not holding their respective loan. BUYER shall reimburse
BANK ONE within 30 days of notice by BANK ONE to BUYER for any
payments tendered by borrowers which were credited to the
outstanding balance of any Office Loan prior to the Closing Date
and which are subsequently returned or otherwise withdrawn for
any reason and BANK ONE shall assign to BUYER any rights of BANK
ONE to recovery of such payments as against the relevant
borrower.
(j) BANK ONE shall forward notice to appropriate
carriers for single premium prepaid life and A&H/Disability
insurance related to the Office Loans (the "Insured Office Loans"
herein) of BUYER's acquisition of the Insured Office Loans within
thirty (30) days following the Closing Date. Such notice shall
identify BUYER as the new obligee of the Insured Office Loans and
shall direct the insurance carriers to forward any premium
refunds otherwise payable to BANK ONE with respect to the Insured
Office Loans following the Closing (the "Premium Refunds" herein)
to BUYER. In the event that, following the Closing, any such
Insured Office Loans are paid in full prior to maturity and BUYER
receives a Premium Refund, BUYER shall credit the account of such
Insured Office Loan customer with the appropriate portion of any
such Premium Refund. The Premium Settlement Payment by BANK ONE
shall constitute the only obligation of BANK ONE to BUYER with
respect to matters pertaining to Premium Refunds, and BUYER shall
be responsible for any and all payments or credits due or owing
the Insured Office Loan customers with respect to payment in full
of the Insured Office Loans prior to maturity. The Premium
Settlement Payment defined in Section 1.04(d) herein shall be
calculated as of the Closing Date and based upon BANK ONE's
average commission rate of 35% and average early payoff
experience of 30% on loans with such insurance coverage. In the
event that an Insured Office Loan is put back to BANK ONE under
the terms of Schedule S of this Agreement BUYER shall, at the
time of such put back, pay to BANK ONE the amount of the Premium
Settlement Payment attributable to such Insured Office Loan.
(k) The duties and obligations of the parties in this
section 7.2 shall survive the Closing.
7.3 Overdrafts and Transitional Action. Overdrafts on the
Deposit Accounts will be the responsibility and risk of BUYER.
7.4 ATMs and Debit Cards.
(a) BANK ONE shall provide to BUYER no later than
sixty (60) days prior to the Closing Date, a test tape, along
with a file format or file layout and a production tape thirty
(30) days before the Closing Date, containing customer name, card
number, withdrawal limits, the Deposit Accounts activated by,
accessible to or committed to such cards issue dates and/or open
dates, last transaction dates, and expiration dates as to all ATM
and debit cards issued to customers of the BANK ONE Offices, and
shall notify the appropriate processor to deactivate the
operation of the BANK ONE ATM and debit cards completely or to
deactivate or disconnect the Deposit Accounts from such BANK ONE
ATM and debit cards no later than the business day cutoff on the
date prior to the Closing Date so that all activity generated by
the BANK ONE ATM and debit cards shall have settled prior to the
Closing Date. All transactions and activity related to the BANK
ONE ATM and debit cards following the Closing Date which are
received or forwarded to BANK ONE will be accepted and forwarded
by BANK ONE to BUYER along with all corresponding funds. BANK
ONE thereafter agrees to immediately notify its processor to
deactivate such ATM and debit cards and to forward all
transactions related thereto directly to BUYER.
(b) BANK ONE agrees to deactivate the ATMs located at
the Offices on or before the business day cutoff on the day prior
to the Closing Date. Thereafter, BUYER shall reconfigure the
ATMs to its standards for activation after the business day
cutoff on the Closing Date.
(c) BUYER and BANK ONE 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 BANK ONE and all transactions
originated after the Closing Date shall be for the account of
BUYER. A post closing adjustment shall be made in the manner set
forth in Section 6.4 hereof to reflect all such transactions
which cannot be reasonably calculated as of the Closing.
7.5 Environmental Matters.
(a) BANK ONE has provided to BUYER, and BUYER hereby
acknowledges receipt of, copies of Phase I environmental site
assessments (the "Phase I Assessments" herein) for all Owned Real
Estate.
(b) If such Phase I Assessments reasonably indicated
the necessity or desirability of further investigation to
determine whether or not an Environmental Hazard exists at such
Owned Real Estate, BUYER shall notify BANK ONE in writing, not
later than ten (10) days after the signing of this Agreement, of
BUYER's desire to have an environmental consultant selected by
BANK ONE (the "Environmental Consultant"), to the extent
reasonable and appropriate, conduct Phase II environmental site
assessments ( the "Phase II Assessments" herein). Any such
further investigation or testing shall be conducted in such a
manner so as not to interfere with the normal operation of the
Office(s) involved. All such Phase II Assessments shall be
treated as information subject to Section 8.01 of this Agreement,
shall be completed not less than thirty (30) days after the
signing of this Agreement, and shall be conducted at no cost or
expense to BANK ONE. Further, BUYER shall indemnify and hold
harmless BANK ONE and its affiliates and its and their employees,
officers, directors, agents, tenants, and landlords from and
against any and all liability, loss, cost, and expense, however
arising, including attorney fees, as a direct or indirect result
of any injuries to persons or property occurring in conjunction
with conduct of the Phase II Assessments.
(c) BANK ONE shall have a period of 10 business days
from receipt of such notice to elect, at its sole option, to
consent to conduct of the Phase II Assessment or to terminate
this Agreement with respect to the relevant Office which is the
proposed subject of the Phase II Assessment (the "Removed
Office") and any and all assets and liabilities associated
therewith. In the event of such termination, if the Removed
Office is the only Office which is the subject of this Agreement
this Agreement shall be deemed terminated in accordance with
Section 9.1 herein and the Deposit described in Section 10.15
shall be refunded to BUYER. In the event of such termination
where the Removed Office is not the only Office which is the
subject of this Agreement, this Agreement shall remain in full
force and effect except that the Removed Office and any and all
assets and liabilities associated therewith shall be deemed not
the subject of this Agreement and eliminated therefrom.
(d) In the event that the Phase II Assessment is
conducted and the Environmental Consultant discovers an
Environmental Hazard during any such Phase II Assessment at any
single parcel of Owned Real Estate, the remediation of which, in
the reasonable judgment of the Environmental Consultant, is or
would be the responsibility of BANK ONE, or BUYER should it
acquire such Owned Real Estate, and will result in projected
remediation costs of $100,000 or more for such single parcel of
Owned Real Estate, BUYER shall lease from BANK ONE such single
parcel of Owned Real Estate pursuant to a Lease Agreement which
shall provide as follows:
(i) Such Lease Agreement shall be for a term of
two(2) years from the Closing Date, with no obligation or right
to renew (it being the intention of BANK ONE that BUYER locate an
alternative branch site during such two years unless remediation
occurs pursuant to this Section 7.5), at a rental equal to a fair
market rental value;
(ii) BANK ONE may sell such Owned Real Estate to
any person at any time during the term of such Lease Agreement,
subject to such Lease Agreement, for a price;
(iii) During the term of such Lease Agreement, in
the event that BANK ONE shall deliver to BUYER a report of a
qualified environmental engineer or consultant certifying that
the Environmental Hazard, at or on any such parcel of Owned Real
Estate which is the subject of the Lease Agreement, has been
remediated to the extent reasonably required under applicable
Environmental Laws, BUYER shall be required to purchase such
parcel of Owned Real Estate at the net book value as of the close
of business of the month-end day most recently preceding the
Closing Date; and
(iv) Other terms and conditions of the Lease
Agreement shall be typical to branch leases in the relevant
market of the subject Owned Real Estate and as negotiated between
BANK ONE and BUYER.
If the projected remediation cost is less than $100,000 for any
single parcel of Owned Real Estate, BUYER shall acquire such
parcel and such cost shall be borne by BUYER without indemnity,
price adjustment, or set off under this Agreement, and BUYER
shall be deemed to have waived any and all claims against BANK
ONE and its affiliates and its and their officers, directors,
employees, or arising directly or indirectly as a result of the
Environmental Hazards.
(e) BUYER agrees that it and the Environmental
Consultant shall conduct any Phase II Assessments or other
investigations pursuant to this Section with reasonable care and
subject to customary practices among environmental consultants
and engineers, including, without limitation, following
completion thereof, the restoration of any site to the extent
practicable to its condition prior to such site assessment or
investigation and the removal of all monitoring xxxxx.
(f) Any lease of a parcel of Owned Real Estate
pursuant to this Section 7.5 shall in no way affect the transfer
of any related assets or liabilities, other than such parcel of
Owned Real Estate, to the BUYER at the Closing.
(g) For purposes of this Section 7.5, the term
"Environmental Law" shall mean any Federal or state law, statute,
rule, regulation, code, order, judgment, decree, injunction, or
agreement with any Federal or state governmental authority, (x)
relating to the protection, preservation, or restoration of the
environment (including, without limitation, air, water, vapor,
surface water, groundwater, drinking water supply, surface land,
subsurface land, plant and animal life or any other natural
resource) or to human health or safety or (y) the exposure to, or
the use, storage, recycling, treatment, generation,
transportation, processing, handling, labeling, production,
release or disposal of hazardous substances, in each case as
amended and now in effect. Environmental Laws include, without
limitation, the Clean Air Act (42 U.S.C. section 7401 et seq.);
the Comprehensive Environmental Response Compensation and
Liability Act (42 U.S.C. section 9601 et seq.); the Federal Water
Pollution Control Act (33 U.S.C. section 1251 et seq.); the
Occupational Safety and Health Act (29 U.S.C. section 651 et
seq.); provided, however, that the definition of "Environmental
Law" shall not include any Federal or state law, statute, rule,
regulation, code, order, judgment, decree, injunction or
agreement with any governmental authority relating to asbestos or
asbestos-containing materials.
(h) For purposes of this Section 7.5, the term
"Environmental Hazard" shall mean the presence of any Hazardous
Substance in violation of, and reasonably likely to require
material remediation costs under, applicable Environmental Laws;
provided, however, that the definition of Environmental Hazard
shall not include asbestos and asbestos-containing materials.
(i) For purposes of this Section 7.5, the term
"Hazardous Substance" shall mean any substance, whether liquid,
solid, or gas, (a) listed, identified or designated as hazardous
or toxic to a level which requires remediation under any
Environmental Law; (b) which, applying criteria specified in any
Environmental Law, is hazardous or toxic; or (c) the use or
disposal of which is regulated under Environmental Law.
7.6 Effect of Transitional Action. Except as and to the
extent expressly set forth in this Article 7, nothing contained
in this Article 7 shall be construed to be an abridgment or
nullification of the rights, customs and established practices
under applicable banking laws and regulations as they affect any
of the matters addressed in this Article 7.
8. GENERAL COVENANTS AND INDEMNIFICATION.
8.1 Confidentiality Obligations of BUYER. From and after
the date hereof, BUYER and its affiliates and parent company
shall treat all information received from BANK ONE concerning the
business, assets, operations, and financial condition of BANK ONE
and its affiliates and its and their customers (including without
limitation the Offices), as confidential, unless and to the
extent that BUYER can demonstrate that such information was
already known to BUYER and its affiliates, if any, or in the
public domain or received from a third person not known by BUYER
to be under any obligation to BANK ONE; and BUYER shall not use
any such information (so required to be treated as confidential)
for any purpose except in furtherance of the transactions
contemplated hereby. Upon the termination of this Agreement,
BUYER shall, and shall cause its affiliates, if any, to, promptly
return all documents and workpapers containing, and all copies
of, any such information (so required to be treated as
confidential) received from or on behalf of BANK ONE in
connection with the transactions contemplated hereby. The
covenants of BUYER contained in this Section 8.1 are of the
essence and shall survive any termination of this Agreement, but
shall terminate at the Closing, if it occurs, with respect to any
information that is limited solely to the activities and
transactions of the Offices; provided, however, that neither
BUYER nor any of its affiliates shall be deemed to have violated
the covenants set forth in this Section 8.1 if BUYER shall in
good faith disclose any of such confidential information in
compliance with any legal process, order or decree issued by any
court or agency of government of competent jurisdiction. It is
expressly acknowledged by BANK ONE that all information provided
to BUYER related to this purchase and assumption transaction may
be provided to BUYER's affiliates as necessary for the purpose of
consummating the transaction which is the subject of this
Agreement. The covenants and obligations of BUYER hereunder shall
survive the Closing and any earlier termination of this
Agreement.
8.2 Confidentiality Obligations of BANK ONE. From and
after the date hereof, BANK ONE, its affiliates and its parent
corporation shall treat all information received from BUYER
concerning BUYER's business, assets, operations, and financial
condition as confidential, unless and to the extent BANK ONE can
demonstrate that such information was already known to BANK ONE
or its affiliates or in the public domain, and BANK ONE shall not
use any such information (so required to be treated as
confidential) for any purpose except in furtherance of the
transactions contemplated hereby. Upon the termination of this
Agreement, BANK ONE shall promptly return all documents and
workpapers containing, and all copies of, any such information
(so required to be treated as confidential) received from or on
behalf of BUYER in connection with the transactions contemplated
hereby. The covenants of BANK ONE contained in this Section 8.2
are of the essence and shall survive any termination of this
Agreement; provided, however, that BANK ONE nor any of its
affiliates shall be deemed to have violated the covenants set
forth in this Section 8.2 if BANK ONE shall in good faith
disclose any of such confidential information in compliance with
any legal process, order or decree issued by any court or agency
of government of competent jurisdiction. It is expressly
acknowledged by BUYER that all information provided to BANK ONE
related to this purchase and assumption transaction may be
provided to BANK ONE CORPORATION and BANK ONE's affiliates for
the purpose of consummating the transaction which is the subject
of this Agreement. The covenants and obligations of BANK ONE
hereunder shall survive the Closing and any earlier termination
of this Agreement.
8.3 Indemnification by BANK ONE. From and after the
Closing Date, BANK ONE shall indemnify, hold harmless, and defend
BUYER from and against all losses and liabilities, including
reasonable attorneys' fees and expenses, arising out of any
actions, suits, or proceedings commenced prior to the Closing
(other than proceedings to prevent or limit the consummation of
the Acquisition) relating to operations at the Offices and/or the
Deposit Liabilities of the Offices; and BANK ONE shall further
indemnify, hold harmless, and defend BUYER from and against all
losses and liabilities, including reasonable attorneys' fees and
expenses, arising out of any actions, suits, or proceedings
commenced on or after the Closing to the extent the same relate
to operations at the Offices and/or the Deposit Liabilities prior
to the Closing. The obligations of BANK ONE under this Section
8.3 shall be contingent upon BUYER giving BANK ONE written notice
(i) of receipt by BUYER of any process and/or pleadings in or
relating to any actions, suits, or proceedings of the kinds
described in this Section 8.3, including copies thereof, and
(ii) of the assertion of any claim or demand relating to the
operation of the Offices and/or the Deposit Liabilities or Office
Loans prior to the Closing, including, to the extent known to
BUYER, the identity of the person(s) or entity(ies) asserting
such claim or making such demand and the nature thereof, and
including copies of any correspondence or other writings relating
thereto. The rights of BUYER under this section shall not apply
to any suits, judgments, demands, set-offs, or other claims
arising directly or indirectly in conjunction with the Office
Loans or other Assets transferred in accordance with this
Agreement except claims for personal injury arising from injuries
occurring at the Offices prior to the Closing. All notices
required by the preceding sentence shall be given within fifteen
days of the receipt by BUYER of any such process or pleadings or
any oral or written notice of the assertion of any such claims or
demands. BANK ONE shall have the right to take over BUYER's
defense in any such actions, suits, or proceedings through
counsel selected by BANK ONE, to compromise and/or settle the
same and to prosecute any available appeals or reviews of any
adverse judgment or ruling that may be entered therein. The
covenants and obligations of BANK ONE hereunder shall survive the
Closing and any earlier termination of this Agreement.
8.4 Indemnification by BUYER. From and after the Closing
Date, BUYER shall indemnify, hold harmless and defend BANK ONE
from and against all claims, losses, liabilities, demands and
obligations, including without limitation reasonable attorneys'
fees and operating expenses which BANK ONE may receive, suffer,
or incur in connection with (i) any losses incurred by BANK ONE
related to BANK ONE's compliance with instructions from BUYER
made pursuant to Section 7.4 of this Agreement and not related to
any negligence or malfeasance on the part of BANK ONE and (ii)
operations and transactions occurring after the Closing and which
involve the Assets transferred, the Deposit Liabilities or Office
Loans and the other obligations and liabilities assumed pursuant
to this Agreement. The obligations of BUYER under this Section
8.4 shall be contingent upon BANK ONE giving BUYER written notice
(i) of the receipt by BANK ONE of any process and/or pleadings in
or relating to any actions, suits or proceedings of the kinds
described in this Section 8.4, including copies thereof, and
(ii) of the assertion of any claim or demand relating to the
Assets transferred to and/or the Deposit Liabilities or Office
Loans and the other obligations and liabilities assumed by BUYER
on or after the Closing, including, to the extent known to BANK
ONE, the identity of the person(s) or entity(ies) asserting such
claim or making such demand and the nature thereof, and including
copies of any correspondence or other writings relating thereto.
All notices required by the preceding sentence shall be given
within fifteen (15) days of the receipt by BANK ONE of any such
process or pleadings or any oral or written notice of the
assertion of any such claims or demands. BUYER shall have the
right to take over BANK ONE's defense in any such actions, suits,
or proceedings through counsel selected by BUYER, to compromise
and/or settle the same and to prosecute any available appeals or
review of any adverse judgment or ruling that may be entered
therein. The covenants and obligations of BUYER hereunder shall
survive the Closing and any earlier termination of this
Agreement.
8.5 Solicitation of Customers by BUYER Prior to Closing.
At any time prior to the Closing Date, BUYER will not, and will
not permit any of its affiliates, if any, to conduct any
marketing, media or customer solicitation campaign which is
targeted to induce customers whose Deposit Account liabilities
are to be assumed or Office Loans are to be acquired by BUYER
pursuant to this Agreement to discontinue their account or
business relationships with BANK ONE or its affiliates.
Additionally, at any time prior to the Closing, BUYER shall not,
with respect to its offices in the same market as the Offices,
offer to pay on any transaction accounts or any new or renewal
savings accounts or certificates of deposits, rates of interest
greater than those offered or then being paid on similar accounts
for like term and amount by other offices of BUYER located in the
referenced market. Among other matters, it is the intent of this
provision to prevent BUYER from paying or offering to pay a rate
of interest on any deposit accounts in excess of that rate paid
for like accounts at other offices of BUYER within the market of
the Offices prior to execution of this Agreement.
8.6 Solicitation of Customers by BANK ONE After the
Closing. From the date of this Agreement and for one (1) year
following the Closing Date, BANK ONE will not knowingly directly
solicit a) deposit accounts from customers whose Deposit
Liabilities and/or Office Loans are assumed or acquired by BUYER
pursuant to this Agreement, or b) refinancing of Office Loans
from borrowers whose Office Loans are being acquired by BUYER
hereunder, except as may occur in connection with (i) advertising
or solicitations directed to the public generally, (ii)
solicitations outside the designated market area of the Offices
and (iii) customers or borrowers with a banking or other
relationship with BANK ONE or its affiliates at offices other
than the Offices, or who have or maintain more than one place of
business. The covenants and obligations of BANK ONE hereunder
shall survive the Closing.
8.7 Further Assurances. From and after the date hereof,
each party hereto agrees to execute and deliver such instruments
and to take such other actions as the other party hereto may
reasonably request in order to carry out and implement this
Agreement. Without limiting the foregoing, BANK ONE agrees to
execute and deliver such deeds, bills of sale, acknowledgments,
and other instruments of conveyance and transfer as, in the
reasonable judgment of BUYER, shall be necessary and appropriate
to vest in BUYER the legal and equitable title to the Assets of
BANK ONE being conveyed to BUYER hereunder. Further, BUYER, at
its sole cost and expense, shall prepare and shall file, or shall
cause to be prepared and filed, with any appropriate third
parties, any and all documents and notices which are necessary
and proper to transfer to BUYER any security interests and other
rights of BANK ONE in and to collateral securing the Office Loans
not later than the earlier to occur of exclusion of the relevant
Office Loan from the "put" provisions set forth in Schedule S
hereof or the Option Exercise Date as defined in Schedule S
hereof. BANK ONE shall cooperate with BUYER in executing any
necessary and proper documents and notices as may be appropriate
in furtherance of the foregoing covenant and consistent with the
terms of this Agreement provided, however, that nothing contained
herein shall relieve BUYER of its obligations as set forth
herein. The covenants and obligations of the parties hereunder
shall survive the Closing.
8.8 Operation of the Offices. Except as otherwise
expressly provided in this Agreement, after the Closing Date
neither BANK ONE, its subsidiaries, affiliates or parent
corporation shall be obligated to provide for any managerial,
financial, business, or other services to the Offices, including
without limitation any personnel, employee benefit, data
processing, accounting, risk management, or other services or
assistance that may have been provided to the Offices prior to
the close of business on the Closing Date, and BUYER shall take
such action as may in its judgment appear to be necessary or
advisable to provide for the ongoing operation and management of,
and the provision of services and assistance to, the Offices
after the Closing Date. Upon the Closing, BUYER shall change the
legal name of the Offices and, except for any documents or
materials in possession of the customers of the Offices
(including but not limited to deposit tickets and checks), shall
not use and shall cause the Offices to cease using any signs,
stationery, advertising, documents, or printed or written
materials that refer to the Offices by any name that includes the
words "BANK ONE" or "BANK ONE" or the name of any affiliate of
BANK ONE CORPORATION. Preceding the Closing, BANK ONE shall
cooperate with any reasonable requests of BUYER directed to
obtaining specifications for the procurement of new signs of
BUYER's choosing for installation by BUYER of new signs
immediately following the close of business on the Closing Date;
provided, however, that BUYER's receipt of all sign
specifications shall be obtained by BUYER in a manner that does
not significantly interfere with the normal business activities
and operations of the Offices and shall be at the sole and
exclusive expense of BUYER. As indicated in, and as limited by,
Section 1.2(c), BANK ONE will retain its signs located at the
Offices. If removed by BUYER in conjunction with its
installation of new signs, BUYER shall obtain BANK ONE's approval
for such removal and shall insure that said signs are removed
without damage to same. It is understood by the parties hereto
that, with the exception of the signs, all mounting facilities
for the signs shall be considered as Fixed Assets for purposes of
this Agreement. The covenants and obligations of the parties
hereunder shall survive the Closing.
8.9 Information After Closing. For a period of seven (7)
years following the Closing, upon written request of BANK ONE to
BUYER or BUYER to BANK ONE, as the case may be, such requested
party shall provide the requesting party with reasonable access
to, or copies of, information and records relating to the Offices
which are then in the possession or control of the requested
party reasonably necessary to permit the requesting party or any
of its subsidiaries or affiliates to comply with or contest any
applicable legal, tax, banking, accounting, or regulatory
policies or requirements, or any legal or regulatory proceeding
thereunder or requests related to customer relationships at the
Offices prior to Closing. In the event of any such requests, the
requesting party shall reimburse the requested party for the
reasonable costs of the requested party related to such request.
The covenants and obligations of the parties hereunder shall
survive the Closing.
8.10 Individual Retirement Accounts. All Individual
Retirement Accounts related to the Offices that shall not have
become IRAs by the close of business on the 30th day following
the Closing shall not be assigned by BANK ONE to BUYER or assumed
by BUYER. BANK ONE may thereafter, at its option, elect to
retain such Individual Retirement Accounts, advise the account
holders that it has withdrawn its resignation as custodian or
transfer the amount in such Individual Retirement Accounts to the
account holders.
8.11 Covenant Not to Compete. From and after the Closing
and for a period of two (2) years following the Closing Date,
BANK ONE shall not, and shall not enter into any agreement to,
acquire, lease, purchase, own, operate or use any building,
office or other facility or premises located within a three (3)
mile radius of any Office for the purpose of operating a full
service branch and making loans, accepting deposits or cashing
checks; provided, however, that the foregoing prohibition shall
not apply to: i) performance by BANK ONE or any current or future
affiliate or successor of BANK ONE of any of the foregoing
activities utilizing ATMs, CBCTs, ALMs, cash dispensing machines,
remote service facilities, terminals, or similar devices, or
through continued operation of existing offices, or ii)
performance by BANK ONE or any current or future affiliate or
successor of BANK ONE of the foregoing activities as a result of
a merger or other combination with, or acquisition of or by, BANK
ONE, BANK ONE CORPORATION, or an affiliate thereof with any third
party following the Closing Date. The covenants and obligations
of BANK ONE hereunder shall survive the Closing.
8.12 Non-solicitation of Employees. BUYER agrees that for a
period of twelve (12) months from the date of this Agreement, or
for a period of twelve (12) months from such date as this
Agreement may be terminated pursuant to Section 9 hereof, neither
BUYER nor any of its subsidiaries or affiliates will;
(a) directly or indirectly solicit for employment or
employ any persons who are employees in the retail group of BANK
ONE CORPORATION, BANK ONE or their subsidiaries or affiliates on
the date hereof or;
(b) directly or indirectly solicit for employment or
employ any other persons who are employees of BANK ONE
CORPORATION, BANK ONE or their subsidiaries or affiliates on the
date hereof and with whom BUYER has had contact or who became
known to BUYER solely in conjunction with any phase of the
transaction contemplated hereby, whether prior to execution of
this Agreement or subsequent thereto. As used solely in this
subsection 8.12(b), the term "solicit" shall not be deemed to
include general advertisements or general solicitations that are
not targeted or directed specifically to individuals who are
employees of BANK ONE or its subsidiaries or affiliates. Subject
to the prohibitions contained in subsection 8.12(a), nothing in
this section 8.12(b) shall prohibit BUYER or BUYER's affiliates
or subsidiaries from hiring a person covered by this subsection
8.12(b) who contacts BUYER on their own initiative (and not in
response to solicitation by BUYER in violation of this section)
or a person covered by this subsection 8.12(b) who is no longer
in the employ of BANK ONE CORPORATION, BANK ONE or its
subsidiaries or affiliates at the time of such solicitation.
The covenants and obligations of BUYER hereunder shall survive
the Closing or any earlier termination of this Agreement.
9. TERMINATION.
9.1 Termination by Mutual Agreement. This Agreement may be
terminated and the transactions contemplated hereby may be
abandoned by mutual consent of the parties authorized by a vote
of a majority of the Board of Directors (or by the vote of the
Executive Committee of such Board, if so empowered) of each of
BANK ONE and BUYER.
9.2 Termination by BANK ONE. This Agreement may be
terminated and the transactions contemplated hereby abandoned by
a vote of a majority of the Board of Directors (or by the vote of
the Executive Committee of such Board, if so empowered) of BANK
ONE:
(a) in the event of a material breach by BUYER of this
Agreement; or
(b) in the event any of the conditions precedent
specified in Section 5.1 of this Agreement has not been met as of
the date required by this Agreement and, if not so met, has not
been waived by BANK ONE; or
(c) in the event any regulatory approval for the
consummation of the Acquisition is denied by the applicable
regulatory authority or in the event that at any time prior to
the Closing Date it shall become reasonably certain to BANK ONE,
with the advice of counsel, that a regulatory approval required
for consummation of the Acquisition will not be obtained within a
time reasonably satisfactory to BANK ONE; or
(d) on or after a date which is 180 calendar days
following the date of this Agreement, (the "Termination Date") if
the Closing has not then occurred unless the failure to
consummate by such date is due to a breach of this Agreement by
BANK ONE; or
(e) at the option of BANK ONE in the event that BUYER
enters into an agreement or agreements, or intends to enter into
an agreement or agreements, providing for the merger,
acquisition, or sale of substantially all of the assets of BUYER
or its parent company such as would require prior regulatory
approval under the Change in Bank Control Act, as amended, or the
Bank Holding Company Act of 1956, as amended, or similar law or
regulation.
(f) at the option of BANK ONE in the event that there
is a material adverse change in the financial condition or
results of operation of BUYER, or pending or threatened
litigation or claims with respect to the transactions
contemplated by this Agreement which, in the opinion of BANK ONE,
may hinder or delay the ability of the parties to consummate the
transactions contemplated by this Agreement.
(g) at the option of BANK ONE in the event that
consents to the transactions contemplated by this Agreement from
such third parties as BANK ONE may reasonably deem necessary or
appropriate are not available prior to the Closing Date without
additional cost or expense to BANK ONE, or in the event that
releases of BANK ONE by such third parties as BANK ONE may
reasonably deem necessary or appropriate are not available prior
to the Closing Date without additional cost or expense to BANK
ONE.
9.3 Termination by BUYER. This Agreement may be terminated
and the transactions contemplated hereby abandoned by a vote of a
majority of the Board of Directors (or by the vote of the
Executive Committee of such Board, if so empowered) of BUYER:
(a) in the event of a material breach by BANK ONE of
this Agreement; or
(b) in the event any of the conditions precedent
specified in Section 5.2 of this Agreement has not been met as of
the date required by this Agreement and, if not so met, has not
been waived by BUYER; or in the event any regulatory approval
required for consummation of the Acquisition is denied by the
applicable regulatory authority or in the event that at any time
prior to the Closing Date it shall become reasonably certain to
BUYER, with the advice of counsel, that a regulatory approval
required for consummation of the Acquisition will not be
obtained; or
(c) on or after the Termination Date if the Closing
has not then occurred unless the failure to consummate by such
time is due to a breach of this Agreement by BUYER.
9.4 Effect of Termination. The termination of this
Agreement pursuant to Sections 9.2 or 9.3 of this Article 9 shall
not release any party hereto from any liability or obligation to
the other party hereto arising from (i) a breach of any provision
of this Agreement occurring prior to the termination hereof or
(ii) the failure of timely satisfaction of conditions precedent
to the obligations of a party to the extent that such failure of
timely satisfaction is attributable to the actions or inactions
of such party.
10. MISCELLANEOUS PROVISIONS.
10.1 Expenses. Except as and to the extent specifically
allocated otherwise herein, each of the parties hereto shall bear
its own expenses, whether or not the transactions contemplated
hereby are consummated.
10.2 Certificates. All statements contained in any
certificate ("Certificate") delivered by or on behalf of BANK ONE
or BUYER pursuant to this Agreement or in connection with the
transactions contemplated hereby shall be deemed to be
representations and warranties of the party delivering the
Certificate hereunder. Each such Certificate shall be executed
on behalf of the party delivering the Certificate by duly
authorized officers of such party.
10.3 Termination of Representations and Warranties. The
respective representations and warranties of BANK ONE and BUYER
contained or referred to in this Agreement or in any Certificate,
schedule, or other instrument delivered or to be delivered
pursuant to this Agreement shall terminate at the Closing, except
for:
(a) those representations and warranties contained in
any warranty deeds delivered by BANK ONE to BUYER at the Closing;
(b) those representations and warranties contained in
any xxxx of sale relating to the Assets delivered by BANK ONE to
BUYER at Closing;
(c) those representations and warranties contained in
any instrument of assumption or in any Certificate in the forms
of Schedule I and Schedule N, respectively, attached hereto and
delivered by BUYER to BANK ONE at the Closing;
(d) those representations and warranties contained in
any Certificate in the form of Schedule K attached hereto,
delivered by BANK ONE to BUYER at the Closing; and
(e) those representations and warranties of BANK ONE
contained in Section 3.1(o) of this Agreement.
10.4 Waivers. Each party hereto, by written instrument
signed by duly authorized officers of such party, may extend the
time for the performance of any of the obligations or other acts
of the other party hereto and may waive, but only as affects the
party signing such instrument:
(a) any inaccuracies in the representations or
warranties of the other party contained or referred to in this
Agreement or in any document delivered pursuant hereto;
(b) compliance with any of the covenants or agreements
of the other party contained in this Agreement;
(c) the performance (including performance to the
satisfaction of a party or its counsel) by the other party of
such of its obligations set out herein; and
(d) satisfaction of any condition to the obligations
of the waiving party pursuant to this Agreement.
10.5 Notices. All notices and other communications
hereunder may be made by mail, hand-delivery or by courier
service and notice shall be deemed to have been given when
received; provided, however, if notices and other communications
are made by nationally recognized overnight courier service for
overnight delivery, such notice shall be deemed to have been
given one business day after being forwarded to such a nationally
recognized overnight courier service for overnight delivery.
If to BANK ONE:
Bank One Wisconsin
000 Xxxx Xxxxxxxxx Xxx.
Xxxxxxxxx, Xxxxxxxxx 00000
With a copy to:
BANK ONE CORPORATION
Attention: Xxxxxxx X. Xxxxx, Esq.
000 Xxxx Xxxxx Xxxxxx
00xx Xxxxx
Xxxxxxxx, Xxxx 00000-0000
If to BUYER:
Wisconsin Community Bank
c/o Heartland Financial USA, Inc.
0000 Xxxxxxx Xxx.
Xxxxxxx, Xxxx 00000
Attention: Xx. Xxxx X. Xxxxxxx
With a copy to:
Xxxxxx X. Xxxxx
Barack Xxxxxxxxxx Xxxxxxxxxx Xxxxxxx & Xxxxxxxxx
000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
or such other person or address as any such party may designate
by notice to the other parties, and shall be deemed to have been
given as of the date received.
10.6 Parties in Interest: Assignment; Amendment. The
rights and obligations of each individual banking association
which is a party hereto shall be exclusively and individually
binding upon, and shall inure exclusively and individually to the
benefit of, that banking association and its respective permitted
successors and assigns. Representations, warranties, and
covenants of BANK ONE contained herein shall be deemed made by
the appropriate respective banking association which is the owner
of the respective asset or obligor of the respective liability
related thereto and shall not be deemed made by or on behalf of
any banking association for any other banking association. This
Agreement is binding upon and is for the benefit of the parties
hereto and their respective successors, legal representatives,
and assigns, and no person who is not a party hereto (or a
permitted successor or assignee of such party) shall have any
rights or benefits under this Agreement, either as a third party
beneficiary or otherwise. This Agreement cannot be assigned by
BUYER by action of law or otherwise, and this Agreement cannot be
amended or modified, except by a written agreement executed by
the parties hereto or their respective permitted successors and
assigns.
10.7 Headings. The headings, table of contents, and index
to defined terms (if any) used in this Agreement are inserted for
convenience of reference only and are not intended to be a part
of or to affect the meaning or interpretation of this Agreement.
10.8 Terminology. The specific terms of art that are
defined in various provisions of this Agreement shall apply
throughout this Agreement (including without limitation each
schedule hereto), unless expressly indicated otherwise. In
addition, the following terms and phrases shall have the meanings
set forth for purposes of this Agreement (including such
schedule):
(a) The term "business day" shall mean any day other
than a Saturday, Sunday, or a day on which either BANK ONE or
BUYER is closed in accordance with applicable law or regulation.
Any action, notice, or right which is to be taken or given or
which is to be exercised or lapse on or by a given date which is
not a business day may be taken, given, or exercised, and shall
not lapse, until the next business day following.
(b) The term "affiliate" shall mean, with respect to
any person, any other person directly or indirectly controlling,
controlled by or under common control with such person.
(c) The term "Permitted Exceptions" shall mean, with
respect to the Owned Real Estate and the Leased Real Estate,
(i) those five standard exceptions appearing as Schedule B items
in a standard ALTA owners or leasehold title insurance policy,
and any other exceptions, restrictions, easements, rights of way,
and encumbrances referenced in the Title Commitment delivered by
BANK ONE to BUYER as indicated in Section 2.1(c) of this
Agreement; (ii) statutory liens for current taxes or assessments
not yet due, or if due not yet delinquent, or the validity of
which is being contested in good faith by appropriate
proceedings; (iii) such other liens, imperfections in title,
charges, easements, restrictions, and encumbrances (but in all
cases of Owned Real Estate excluding those which secure borrowed
money) which, individually and in the aggregate, do not
materially detract from the value of, or materially interfere
with the present use of, any property subject thereto or affected
thereby; and (iv) such other exceptions as are approved by BUYER
in writing.
(d) The term "person" shall mean any individual,
corporation partnership, limited liability company, association,
trust, or other entity, whether business, personal, or otherwise.
(e) Unless expressly indicated otherwise in a
particular context, the terms "herein," "hereunder," "hereto,"
"hereof," and similar references refer to this Agreement in its
entirety and not to specific articles, sections, schedules, or
subsections of this Agreement. Unless expressly indicated
otherwise in a particular context, references in this Agreement
to enumerated articles, sections, and subsections refer to
designated portions of this Agreement (but do not refer to
portions of any schedule unless such Schedule is specifically
referenced) and do not refer to any other document.
(f) The term "subsidiary" shall mean a corporation,
partnership, limited liability company, joint venture, or other
business organization more than 50% of the voting securities or
interests in which are beneficially owned or controlled by the
indicated parent of such entity.
10.9 Flexible Structure. References in this Agreement to
federal or state laws or regulations, jurisdictions, or
chartering or regulatory authorities shall be interpreted broadly
to allow maximum flexibility in consummating the transactions
contemplated hereby in light of changing business, economic, and
regulatory conditions. Without limiting the foregoing, in the
event BANK ONE and BUYER agree in writing to alter the legal
structure of the Acquisition contemplated by this Agreement
references in this Agreement to such laws, regulations,
jurisdictions, and authorities shall be deemed to be altered to
reflect the laws, regulations, jurisdictions, and authorities
that are applicable in light of such change.
10.10 Press Releases. BANK ONE or BUYER, as the case may
be, shall approve, in writing prior to issuance, the form and
substance of any press release or other public disclosure
relating to any matters relating to this Agreement issued by the
other. Nothing contained herein shall restrict or prohibit BUYER
or BANK ONE from issuance of press releases or public disclosures
which, based on the advice of counsel, are required by applicable
law or regulation and limited to information necessary for
compliance with same.
10.11 Entire Agreement. This Agreement supersedes any and
all oral or written agreements and understandings heretofore made
relating to the subject matter hereof and contains the entire
agreement of the parties relating to the subject matter hereof.
All schedules, exhibits, and appendices to this Agreement are
incorporated into this Agreement by reference and made a part
hereof.
10.12 Governing Law. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of Ohio
and the laws of the United States, as well as regulations issued
by relevant agencies thereof.
10.13 Counterparts. This Agreement may be executed in
several counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same
instrument.
10.14 Tax Matters. BUYER and BANK ONE agree that they will
file applicable tax returns and other related schedules and
documents related to their respective interests based on the
allocations in this Agreement.
10.15 Good Faith Deposit. BUYER and BANK ONE acknowledge
the deposit by BUYER of the sum of $75,000.00 for each Office
which is the subject of this Agreement (in aggregate, the
"Deposit" herein). BUYER agrees that BANK ONE may retain the
Deposit in the event that BUYER fails to consummate the
transactions contemplated herein by the date set forth in Section
9.2(d) herein through no material fault of BANK ONE, in the event
that BANK ONE elects to terminate the transactions contemplated
by this Agreement pursuant to the provisions of Section 9.2
herein, and/or in the event of a breach by BUYER of any of its
duties and obligations hereunder. Any such retention shall not be
deemed to constitute liquidated damages or a waiver by BANK ONE
of any rights in law or in equity arising out of a breach by
BUYER of the terms and conditions of this Agreement. Subject to
the foregoing, the Deposit shall be credited to the account of
BUYER upon the Closing of the transactions contemplated hereunder
in accordance with the terms hereof.
10.16 Interim Transactions. BUYER represents and warrants
that it has not and, subsequent to execution of this Agreement
and prior to the Closing will not, enter into any contract,
agreement, or understanding providing for the sale, transfer, or
assignment to any third party of any assets or liabilities which
are the subject of this Agreement without the prior written
consent of BANK ONE which may be withheld at its sole discretion.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed by their respective officers thereunto duly
authorized, all as of the date first above written.
Bank One Wisconsin
ATTEST:
/s/ Xxxxxx Xxxxxx By:/s/ Xxxxxxx X. Read
-------------------------- ---------------------
Vice President & Secretary Its: President & CEO
Wisconsin Community Bank
ATTEST:
/s/ Xxxxxx X. Xxxxxxxxxx By:/s/ Xxxxxx Xxxxxxxxx
-------------------------- ---------------------
Its: President & CEO
