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EXHIBIT 10(g)
AGREEMENT TO PURCHASE ASSETS
AND ASSUME LIABILITIES
BY AND BETWEEN
FIRST OF AMERICA BANK-MICHIGAN,
NATIONAL ASSOCIATION
AND
INDEPENDENT BANK EAST MICHIGAN
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TABLE OF CONTENTS
ARTICLE ONE: PURCHASE OF ASSETS, REAL ESTATE
AND ASSUMPTION OF DEPOSIT LIABILITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Purchased Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Assumption of Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE TWO: CLOSING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.1 The Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.2 Purchase and Sale of Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.3 Assumption of Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.4 Payment for Assets and Assumption of Liabilities . . . . . . . . . . . . . . . . . . . . . . 4
2.5 Fiduciary Relationships . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.6 Names and Marks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.7 Prorations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.8 Transitional Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.9 Post-Closing Adjustments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE THREE: THE BANK'S
REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.1 Authority Relative to this Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.2 Organization and Good Standing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.3 Governmental Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.4 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.5 Other Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.6 Advice of Changes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE FOUR: SELLER'S
REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
4.1 Authority Relative to this Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
4.2 Organization and Good Standing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
4.3 Governmental Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
4.4 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
4.5 Proceedings Relating to Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
4.6 Taxes, Insurance and Utilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
4.7 Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
4.8 Compliance with Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
4.9 Employee Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
4.10 Forms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
4.11 Deposit Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
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4.12 Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
4.13 Other Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
4.14 Advice of Changes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4.15 Absence of Material Adverse Change . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4.16 Title to Property, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4.17 Environmental Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4.18 Change in Business Relationships . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE FIVE: COVENANTS OF THE BANK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
5.1 Conduct of Business; Certain Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
5.2 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
5.3 Required Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
5.4 Use of SELLER'S Name . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
5.5 Best Efforts to Satisfy Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
5.6 Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE SIX: COVENANTS OF SELLER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
6.1 Access to Records and Information; Personnel; Customers . . . . . . . . . . . . . . . . . . . 13
6.2 Conduct of Business; Certain Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . 14
6.3 Employee Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
6.4 Negative Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
6.5 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
6.6 Assistance in Obtaining Regulatory Approvals . . . . . . . . . . . . . . . . . . . . . . . . 15
6.7 Real Estate, Title, and Surveys . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
6.8 Transfer of Data . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
6.9 Signs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
6.10 Best Efforts to Satisfy Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
6.11 Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
6.12 Installation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
6.13 Covenant Not to Compete . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
6.14 Inspection of Premises . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE SEVEN: CONDITIONS PRECEDENT TO
SELLER'S OBLIGATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
7.1 Compliance by the BANK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
7.2 Renewal of Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . 18
7.3 Delivery of Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
7.4 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
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ARTICLE EIGHT: CONDITIONS PRECEDENT
TO THE BANK'S OBLIGATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
8.1 Regulatory Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
8.2 Compliance by SELLER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
8.3 Renewal of Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . 20
8.4 Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
8.5 Absence of Certain Changes or Events . . . . . . . . . . . . . . . . . . . . . . . . . 21
8.6 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
8.7 Wire Transfer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE NINE: TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
9.1 Termination Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE TEN: EXPENSES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
10.1 The BANK'S Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
10.2 SELLER'S Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
10.3 Brokers' Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
ARTICLE ELEVEN: OTHER AGREEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
11.1 Backup Withholding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
11.2 XXX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
11.3 Interest Reporting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
11.4 Pre-Closing Notices to Depositors . . . . . . . . . . . . . . . . . . . . . . . . . . 23
11.5 Post Closing Certification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
11.6 Post Closing Access to Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
11.7 Risk of Loss . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE TWELVE: INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
12.1 Indemnification of the BANK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
12.2 Indemnification of SELLER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
12.3 Survival of Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . 24
12.4 Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE THIRTEEN: AMENDMENT, WAIVER AND NOTICE . . . . . . . . . . . . . . . . . . . . . . . . . 25
13.1 Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
13.2 Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
13.3 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
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ARTICLE FOURTEEN: GENERAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
14.1 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
14.2 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
14.3 Method of Consent or Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
14.4 Public Announcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
14.5 No Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
14.6 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
14.7 Reliance on Headings, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
14.8 Severability Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
EXHIBIT A Conveyed Real Estate Legal Description
EXHIBIT B Assignment and Assumption of Accounts Agreement
EXHIBIT C Assignment and Assumption of Loans and Loan Agreement
EXHIBIT D Assignment and Assumption of Contracts
EXHIBIT E Assignment, Transfer, and Appointment of Successor Trustee for
Individual Retirement Accounts
EXHIBIT F Xxxx of Sale
SCHEDULE I Commercial Loans
SCHEDULE II Personal Property
SCHEDULE III Assigned Contracts
SCHEDULE IV Deposits
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AGREEMENT TO PURCHASE ASSETS
AND ASSUME LIABILITIES
THIS AGREEMENT TO PURCHASE ASSETS AND ASSUME LIABILITIES ("Agreement") is
made and entered into this 18th day of September, 1996 by and between FIRST OF
AMERICA BANK-MICHIGAN, NATIONAL ASSOCIATION (the "SELLER"), a national banking
association with its headquarters located at 000 Xxxx Xxxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxx 00000 and INDEPENDENT BANK EAST MICHIGAN (the "BANK"), a
Michigan state banking corporation with its headquarters located at 0000 Xxxx
Xxxx Xxxx, Xxxx, Xxxxxxxx 00000.
WITNESSETH
WHEREAS, SELLER owns and operates branch offices located at 000 Xxxx Xxxxx
Xxxxxx, Xxx Xxx, Xxxxxxxx; 0000 Xxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx; 00 Xxxxx Xxxx
Xxxxxx, Xxxxxx, Xxxxxxxx; 00 Xxxx Xxxxx Xxxx, Xxxxx, Xxxxxxxx; 0000 Xxxxxxxx,
Xxxx, Xxxxxxxx; 000 Xxxxx Xxxx Xxxxxxxx, Xxx Xxx, Xxxxxxxx; 0 Xxxx Xxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxx; and 0000 Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx (the "Branch
Offices").
WHEREAS, SELLER desires to sell and the BANK desires to acquire and operate
the Branch Offices, and, in that regard, SELLER desires to sell and the BANK
desires to acquire certain assets related thereto, including certain loans
maintained at the Branch Offices.
WHEREAS, SELLER desires to transfer and the BANK desires to assume certain
deposit accounts maintained at or for the Branch Offices and certain other
liabilities pertaining to the continuing operations thereof.
NOW, THEREFORE, in consideration of the premises and agreements herein
contained, and for other consideration the receipt and sufficiency of which are
hereby acknowledged, the BANK and SELLER agree as follows:
ARTICLE ONE: PURCHASE OF ASSETS, REAL ESTATE
AND ASSUMPTION OF DEPOSIT LIABILITIES
1.1 Purchased Assets. For the consideration, in the manner and upon the
terms and conditions hereinafter set forth, SELLER hereby agrees to sell,
convey, transfer and assign to the BANK and the BANK hereby agrees to accept and
assume from SELLER, as of the close of business on the Closing Date (as
hereinafter defined), certain assets relating to the Branch Offices (the
"Assets") as follows:
A. Real Estate. All of SELLER'S interest in the real estate located
at 000 Xxxx Xxxxx Xxxxxx, Xxx Xxx, Xxxxxxxx; 0000 Xxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxx; 00 Xxxxx Xxxx Xxxxxx, Xxxxxx, Xxxxxxxx; 00 Xxxx Xxxxx Xxxx,
Xxxxx, Xxxxxxxx; 0000 Xxxxxxxx, Xxxx, Xxxxxxxx; 000 Xxxxx Xxxx Xxxxxxxx,
Xxx Xxx, Xxxxxxxx; 0 Xxxx Xxxx
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Xxxxxx, Xxxxxxxxx, Xxxxxxxx; and 0000 Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx,
more particularly described in Exhibit A hereto (the "Real Estate").
B. Cash. All cash on hand at the Branch Offices as of the close of
business on the Closing Date ("Cash on Hand").
C. Loans. The commercial loans listed in Schedule I hereto (the
"Commercial Loans") and all loans secured by Deposit Liabilities (as
hereinafter defined) and account loans ("Account Loans" shall include
overdraft checking account loans) associated with the Branch Offices,
together with unpaid accrued interest thereon (the "Purchased Loans"). The
loans secured by deposit liabilities and Account Loans are collectively
referred to as "Deposit-Related Loans." Notwithstanding the foregoing, the
Purchased Loans shall exclude (1) any Commercial Loan which is not properly
classified in attached Schedule I according to the eight point scale
utilized by SELLER, and (2) any Deposit-Related Loans as to which (i) the
documentation does not meet the usually and customary standards of the
banking industry; (ii) there is a material default or a reasonable doubt as
to the collectibility of amounts which may be or become due and owing; or
(iii) there is any pending or threatened litigation involving the loan or
the deposits securing the loan.
D. Personal Property. All furniture, equipment, fixtures, and other
tangible personal property, excluding signage located at the Branch
Offices, which is described in Schedule II to this Agreement (the "Personal
Property").
E. Books and Records. All books, records, files and other
documentation in the possession of SELLER directly relating to the Assets
and Assumed Liabilities, including the "Deposits" (as defined in Section
1.2) and the Purchased Loans.
The Real Estate and the Personal Property are being sold to the BANK on an
"as is" basis, except as otherwise stated in this Agreement.
1.2 Assumption of Liabilities. Upon the terms and subject to the
conditions hereinafter set forth and except as otherwise provided herein, SELLER
hereby agrees to transfer and assign, and the BANK hereby agrees to accept and
assume from SELLER, certain liabilities relating to the Branch Offices (the
"Assumed Liabilities") as follows:
A. Deposit Liabilities. All liabilities for payment of deposits
maintained at the Branch Offices as of the close of business on the Closing
Date, together with unpaid accrued interest thereon through the Closing
Date ("Deposits" or "Deposit Liabilities"), except for deposits which
cannot lawfully be transferred.
B. Assigned Contracts. All obligations of SELLER under any and all
contracts relating to the operation or maintenance of the Branch Offices
that are assignable by SELLER to the BANK and as are identified in Schedule
III hereto.
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C. Unless BANK elects otherwise, excluded from the definition of
Deposits and Deposit Liabilities and from the scope of this Agreement are
all the following: (1) any deposits over which SELLER or its affiliates
will continue to have investment authority or discretion following the
Closing Date; or (2) negotiated certificates of deposit with governmental
or other institutional or commercial customers which at or before maturity
will have a balance (including principal and interest) of $100,000 or more
("Jumbo CDS") (collectively referred to as the "Excluded Deposits"). Prior
to the Closing, the BANK may, at its sole option, elect to assume some or
all of the Excluded Deposits. If the BANK elects to assume any Excluded
Deposit, those Excluded Deposits shall be included among the Deposit
Liabilities defined above. Selection of those Excluded Deposits which the
BANK desires to assume shall be completed and written notice thereof given
to SELLER not less than 40 days prior to the Closing Date, to permit
notices to customers to be sent if and as required by law, by contract with
the customers or as contemplated under this Agreement.
D. Escrow Accounts. All escrow accounts, if any, for the payment of
taxes, insurance, or other like payments with respect to the Purchased
Loans (collectively the "Escrows").
ARTICLE TWO: CLOSING
2.1 The Closing. The purchase and sale of the Assets, and transfer and
assumption of the Assumed Liabilities by the BANK hereunder shall be consummated
subject to the terms and conditions of this Agreement following a Closing (the
"Closing") to be held at the offices of SELLER, or such other location as the
parties may agree, on such date ("the Closing Date") which shall be such date
as the parties shall mutually agree upon. The transactions contemplated hereby
shall become effective at the close of business ("Effective Time") on the
Closing Date.
2.2 Purchase and Sale of Assets. On the Closing Date and subject to the
terms and conditions set forth in this Agreement, SELLER shall convey, assign,
and transfer to the BANK and the BANK shall purchase from SELLER all of SELLER'S
right, title, and interest in the Assets.
2.3 Assumption of Liabilities.
(a) On the Closing Date, subject to the terms and conditions set
forth in this Agreement, the BANK shall assume liability for the payment
and performance of SELLER'S obligations accruing after the Closing Date for
the Deposit Liabilities in accordance with the terms of such Deposit
Liabilities in effect on the Closing Date provided, however, nothing herein
shall preclude the BANK from thereafter changing the terms and conditions
of such Deposit Liabilities to the extent that it can do so in accordance
with the terms of the agreements with customers associated with the Deposit
Liabilities and in accordance with applicable law.
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(b) On the Closing Date, the BANK will assume the obligations of
SELLER with respect to the Purchased Loans and the Assigned Contracts and
obligations of SELLER to provide services incidental to the Branch Offices
and the assumption of the Deposit Liabilities accruing after the Closing
Date in accordance with the terms thereof.
2.4 Payment for Assets and Assumption of Liabilities. On the Closing Date,
SELLER shall pay to the BANK, by wire transfer in immediately available funds to
an account designated by the BANK, the amount of the Deposit Liabilities and the
Escrows as estimated as of the close of business on the third day immediately
preceding the Closing Date (the "Estimation Date") plus the amount of the
unearned fees associated with letters of credit included in the Purchased Loans
(prorated to the Closing Date) plus the net amount of any prorated items
required by Section 2.7 hereof owed by SELLER to the BANK and less the sum of:
(a) the amount of all Cash on Hand as of the close of business on the Estimation
Date; (b) the net amount of any prorated items required by Section 2.7 hereof
owed by the BANK to SELLER; (c) the net book value as of the close of business
on the Estimation Date of the Personal Property; (d) the net book value as of
the Estimation Date of the Purchased Loans; (e) the "Purchased Loan Premium"
which shall equal the product of the Purchased Loans listed in Schedule I as of
the Estimation Date multiplied by 1% (0.01); (f) the "Deposit Premium," which
shall equal the product of the amount of the Deposit Liabilities as of the
Estimation Date multiplied by 6.875% (0.06875); and (g) the net book value as of
the close of business on the Estimation Date of the Real Estate. The BANK and
SELLER shall agree in writing upon the allocation of such amount among various
categories of assets being acquired by the BANK. The BANK and SELLER agree to
be bound by the allocation for all purposes, including reporting to the Internal
Revenue Service under Section 1060 of the Internal Revenue Code, as amended
("IRC").
2.5 Fiduciary Relationships. As and to the extent legally permissible,
the BANK shall assume all of the fiduciary relationships of SELLER arising out
of any Individual Retirement Account ("XXX") included in the Deposit
Liabilities, and with respect to such accounts, the BANK shall succeed to all
such fiduciary relationships of SELLER as fully and to the same extent as if the
BANK had originally acquired, incurred, or entered into such fiduciary
relationships.
2.6 Names and Marks. SELLER is not selling, assigning, conveying,
transferring or delivering, nor shall the BANK acquire, any rights or interest
in or to: (a) the name "First of America" or any derivation thereof; or (b) any
logos, service marks or trademarks, advertising materials or slogans or any
similar items used by SELLER in connection with its business.
2.7 Prorations. The Federal Deposit Insurance Corporation ("FDIC")
premium with respect to the Deposit Liabilities for the quarterly assessment
period in which the Closing Date occurs, all taxes associated with the Real
Estate, assessments, utility payments, payments due on Assigned Contracts, and
similar expenses related to the Assets transferred
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hereunder shall be prorated between the parties on the basis of a 30-day month
and 360-day year as of the Closing Date. Taxes shall be prorated as though all
tax bills which are received in a particular year are payable for that calendar
year. The FDIC premium shall be prorated as though all of the Deposit
Liabilities are insured as Savings Association Insurance Fund ("SAIF")
deposits. Any items susceptible of being prorated but which cannot be prorated
by the Closing Date shall be prorated as soon as the requisite information
becomes available. Such adjustments after the Closing Date shall take place at
a mutually agreeable time and place within twenty (20) business days of the
Closing Date.
2.8 Transitional Matters.
(a) During the ninety (90) day period following the Closing Date, the
BANK shall pay, in accordance with law and customary banking practices, all
properly drawn and presented checks, and automated clearinghouse debits and
credits, ATM deposits and withdrawals, drafts and withdrawal orders
presented to the BANK by mail, over the counter through the check clearing
system of the banking industry, by depositors of the Deposit Liabilities on
checks, drafts or withdrawal order forms provided by SELLER, and in all
other respects, to discharge, in the usual course of the banking business,
the duties and obligations of SELLER with respect to the balances due and
owing to the depositors whose deposits are assumed by the BANK.
(b) If any of the depositors of the Deposit Liabilities, instead of
accepting the obligations of the BANK to pay the Deposit Liabilities, shall
demand payment from SELLER for all or any part of any of the Deposit
Liabilities, SELLER may make such payment. If any of such depositors draws
a check, has or makes an automated clearinghouse generated debit with
respect to his or her account, makes an ATM withdrawal, draft or withdrawal
order against the Deposit Liabilities, including accrued interest, assumed
from SELLER, which is presented or charged to SELLER within thirty (30)
days after the Closing Date, SELLER may pay the same and the BANK will
reimburse SELLER for any such payment or charges provided there are
sufficient funds in the depositor's account. The BANK and SELLER shall
settle within twenty-four (24) hours any such deposits PAID by SELLER and
any checks, drafts or orders of withdrawal presented by SELLER to the BANK
so long as presentment is made by 3:00 p.m. on the day of presentment of
such item by the depositor whose account is being assumed by the BANK. In
order to reduce the continuing charges to SELLER through the check clearing
system of the banking industry which will result from check forms of SELLER
being used after the Closing Date by the depositors whose accounts are
assumed, the BANK agrees, at its sole cost and expense, and without charge
to such depositors, to notify such depositors, as soon as practicable after
the Closing Date, of the BANK'S assumption of the Deposit Liabilities and
to furnish each depositor with checks on the forms of the BANK, and with
instructions to utilize the BANK'S checks and to destroy unused checks of
SELLER.
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(c) For a period of thirty (30) days after the Closing Date, SELLER
(within thirty (30) hours of receipt thereof) shall deliver to the BANK a
detailed list of checks presented to SELLER for payment which are drawn on
accounts which are included in the Deposit Liabilities. Within forty-eight
(48) hours, SELLER shall deliver to the BANK the checks detailed on such
lists. The BANK will reimburse SELLER for its expenses reasonably incurred
in the performance hereof. This subsection shall not be deemed to
authorize SELLER to act as the BANK'S agent to accept or take any action
with respect to such checks.
(d) Any direct deposits by or for the benefit of a depositor having
an account included in the Deposit Liabilities received by SELLER shall be
delivered to the BANK by the date which such deposit is required to be
credited to the customer's account. A wire transfer of the deposited funds
shall be acceptable for purposes of this subsection. This subsection shall
not be deemed to authorize SELLER to act as the BANK'S agent to accept or
take any other action with respect to such direct deposits.
(e) For a period of thirty (30) days after the Closing Date, any
payments on the account of the Purchased Loans received by SELLER shall be
delivered to the BANK within forty-eight (48) hours of SELLER'S receipt,
provided that this shall not be deemed to authorize SELLER to act as the
BANK'S agent to accept or take any other action with respect to such loan
payments.
(f) If at the Effective Time there exists a negative balance in a
deposit account, that account will be transferred to the BANK and that
negative balance will be netted against other positive balances in
aggregating total Deposit Liabilities for all transferred accounts. If on
or before the twentieth (20th) business day following the Closing Date the
customer has not deposited sufficient money to cover that negative balance,
then upon the BANK'S request, SELLER shall reimburse the BANK for that
amount (to be effected as part of the Adjustment Payment contemplated in
Section 2.9 below) in exchange for the BANK'S assignment to SELLER of the
BANK'S claim against the customer. SELLER'S reimbursement shall be limited
to the amount of the negative balance in the account at the Effective Time,
less any deposits to the account after the Effective Time and prior to the
twentieth (20th) day following the Closing Date.
2.9 Post-Closing Adjustments. Within twenty (20) business days after the
Closing Date ("Adjustment Payment Date"), the parties shall make an appropriate
post-closing adjustment payment (the "Adjustment Payment"), consistent with the
express terms of this Agreement with respect to the Deposit Liabilities,
prorated items owed by either party and all items listed in Subparagraphs (a),
(b), (c), (d), (e), (f) and (g) of Section 2.4 determined as of the close of
business on the Closing Date. The Adjustment Payment shall be paid by wire
transfer to the previously designated accounts, by SELLER or by the BANK, on or
before the Adjustment Payment Date. Interest on the amount of the Adjustment
Payment for the period from the Closing Date to the Adjustment Payment Date
shall be due to the party
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receiving the Adjustment Payment. Interest shall be calculated at a rate equal
to the average of the high and low bids for Federal Funds (on the basis of a
360-day year) as reported in The Wall Street Journal on the Closing Date, or,
if none, on the date immediately prior to the Closing Date on which such bids
were reported in The Wall Street Journal.
ARTICLE THREE: THE BANK'S
REPRESENTATIONS AND WARRANTIES
The BANK represents and warrants to SELLER as follows:
3.1 Authority Relative to this Agreement. The execution, delivery and
performance of this Agreement by the BANK have been duly authorized and approved
by all necessary corporate action on the part of the BANK, and this Agreement is
legally binding and enforceable against the BANK in accordance with its terms.
This Agreement and the transactions contemplated hereby do not and will not
violate any of the provisions of, or constitute a default under: (a) the Charter
or Bylaws of the BANK; or (b) any other material agreement, commitment or
instrument to which the BANK is a party or by which any of its properties or
assets are bound.
3.2 Organization and Good Standing. The BANK is a state bank duly
organized, validly existing and in good standing under the laws of the State of
Michigan and all of its deposits are insured by the FDIC through the Bank
Insurance Fund ("BIF") or SAIF and it has the corporate power to carry on its
business as it is now being conducted and to consummate the transactions
contemplated by this Agreement. The Bank acknowledges and agrees that all of
the Deposit Liabilities being transferred to the Bank by Seller pursuant to this
Agreement will upon transfer be deemed by the FDIC to be insured through SAIF
and will be required to be maintained as SAIF deposits by the Bank.
3.3 Governmental Notices. The BANK has received no notice from any
federal, state, or other governmental agency indicating that such agency would
oppose or not grant or issue its consent or approval, if required, with respect
to the transactions contemplated hereby.
3.4 Litigation. There is no action, suit, or proceeding pending against
the BANK or, to the knowledge of the BANK, threatened against or affecting the
BANK before any court or arbitrator or any governmental body, agency, or
official which could materially adversely affect the ability of the BANK to
perform its obligations under this Agreement or which in any manner questions
the validity of this Agreement.
3.5 Other Information. To its knowledge, no representation or warranty by
the BANK contained in this Agreement, or disclosure by the BANK in any
certificate or other instrument or document furnished or to be furnished by or
on behalf of the BANK pursuant to this Agreement, and no information furnished
or to be furnished by the BANK for use in
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applications to various regulatory authorities contains or will contain any
untrue statement of a material fact or omits or will omit to state any material
fact required to be stated herein or therein or which is necessary to make the
statements contained herein or therein, in light of the circumstances under
which they were or are made, not misleading in any material respect.
3.6 Advice of Changes. Between the date hereof and the Closing Date, the
BANK shall promptly advise SELLER in writing of any fact which, if existing or
known as of the date hereof, would have been required to be set forth or
disclosed in or pursuant to this Agreement or of any fact which, if existing or
known as of the date hereof, would have made any of the representations
contained herein untrue in any material respect.
ARTICLE FOUR: SELLER'S
REPRESENTATIONS AND WARRANTIES
SELLER represents and warrants to the BANK as follows:
4.1 Authority Relative to this Agreement. The execution, delivery and
performance of this Agreement by SELLER have been duly authorized and approved
by all necessary corporate action on the part of SELLER, and this Agreement is
legally binding and enforceable against SELLER in accordance with its terms.
This Agreement and the transactions contemplated hereby do not and will not
violate any of the provisions of, or constitute a default under: (a) the
Articles of Association or Bylaws of SELLER; or (b) any other material
agreement, commitment or instrument to which SELLER is a party or by which any
of its properties or assets are bound.
4.2 Organization and Good Standing. SELLER is a national banking
association duly organized, validly existing and in good standing under the laws
of the United States and all of its deposits are insured by the FDIC through BIF
or SAIF and it has corporate power to carry on its business, including the
business of the Branch Offices, as it is now being conducted and to consummate
the transactions contemplated by this Agreement. SELLER has fully paid all
deposit insurance assessments presently due and payable with respect to the
Deposit Liabilities and this deposit insurance is presently in full force and
effect.
4.3 Governmental Notices. SELLER has received no notice from any federal,
state, or other governmental agency indicating that such agency would oppose or
not grant or issue its consent or approval, if required, with respect to the
transactions contemplated hereby.
4.4 Litigation. There is no action, suit, proceeding or investigation of
any nature pending, or to the knowledge of SELLER, threatened against or
affecting SELLER before any court or arbitrator or any governmental body,
agency, or official or otherwise that challenges the validity or legality of the
transactions contemplated by this Agreement or which would adversely affect the
Assets or the Branch Offices or which could materially adversely affect the
ability of SELLER to perform its obligations under this Agreement.
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4.5 Proceedings Relating to Properties. No proceedings to take all or any
part of the Real Estate by condemnation or right of eminent domain are pending
or, to the best of SELLER'S knowledge, threatened and SELLER'S use of the Real
Estate is not, and no complaints have been received by SELLER that SELLER is, in
violation of applicable building, zoning, safety or similar laws, ordinances or
regulations. There are no special or general assessments pending against or
affecting the Real Estate, and, to the best of SELLER'S knowledge, no public
improvements have been recently made which would cause special or general
assessments to be assessed against the Real Estate. Except for any encroachment
which does not materially affect the use or value of the premises: (a) to the
best of SELLER's knowledge, there is no encroachment upon the Real Estate from
any buildings or improvements, if any, located on the adjacent property; and (b)
to the best of SELLER's knowledge, there is no encroachment by the Real Estate
upon any adjacent property or upon any easements with respect to the adjacent
property. There are no leases or other agreements by which any person possesses
or has a right to possess all or any portion of the Real Estate other than those
described in this Agreement or exhibits to this Agreement. To the best of
SELLER's knowledge, and except as disclosed by title insurance binder or by
survey, there is no violation of any applicable building restriction or
restrictive covenant. To the best of SELLER's knowledge, the Real Estate is
adequately serviced by all utilities necessary for effective operation as
presently used for a financial institution office.
4.6 Taxes, Insurance and Utilities. SELLER has paid all property, excise,
sales and use and other taxes imposed by any taxing authority which are due and
payable, and there are no unpaid taxes which could result in liens being placed
on the Assets or the Deposit Liabilities. SELLER shall maintain in full force
and effect through the Closing Date its present insurance coverage as it relates
to the Assets. SELLER shall pay all utilities through the Closing Date. SELLER
has duly and timely withheld and paid to the appropriate governmental agencies
all withholding taxes, including any related penalties, interest and
deficiencies, relating to the payment of interest, earnings or dividends on the
deposit liabilities. For all completed years, SELLER has duly and timely sent
to each account holder with respect to the Deposit Liabilities an Internal
Revenue Service Form 1099 (or a substitute form permitted by law) relating to
the interest, earnings or dividends paid on the Deposit Liabilities for those
periods.
4.7 Financial Statements. The financial information and all other
information supplied or to be supplied by SELLER to the BANK in connection with
the transactions contemplated hereby is or will be true and complete and fairly
represent the information set forth therein as of the dates and for the periods
specified therein (subject, with respect to statements covering a portion of a
year, to normal year-end adjustments and accruals).
4.8 Compliance with Law. The business and operations of the Branch
Offices have been and are being conducted in accordance with all applicable
laws, rules, and regulations of all authorities, including, without limitation,
all regulations pertaining to the receipt of customer information required by
state and federal law concerning taxpayer identification numbers, social
security numbers and the like, laws and regulations concerning
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truth-in-lending, truth-in-savings, usury, fair credit reporting, consumer
protection, occupational safety, civil rights, employee protection, fair
employment practices, and fair labor standards; and insurance laws.
4.9 Employee Contracts. There are no employment contracts between SELLER
and any of the Employees (as that term is hereinafter defined) not terminable on
thirty (30) days' notice or less after the Closing Date. SELLER is not a party
to any contract or arrangement with any union relating to the business conducted
at the Branch Offices and SELLER is not aware of any pending organizational
efforts at the Branch Offices. To the best of its knowledge, there has been no
indication to SELLER that a union organizational effort or labor disturbance is
likely at the Branch Offices prior to the Closing Date.
4.10 Forms. Within thirty (30) days from the date of this Agreement,
SELLER will provide the BANK with copies of the forms of signature cards,
deposit account forms, Regulation E disclosures, Truth-in-Savings disclosures,
deposit account agreements, and XXX trust agreements and beneficiary
designations, as well as the forms of any other instruments or agreements
presently in use at the Branch Offices in connection with the Deposit
Liabilities. For purposes of this Section 4.10, all referenced documents shall
be the forms used by SELLER as of the date of this Agreement for new customers.
4.11 Deposit Liabilities. During the period of SELLER'S operation of the
Branch Offices, SELLER has properly accrued interest on the Deposit Liabilities
and, to the best of SELLER'S knowledge, the records respecting the Deposit
Liabilities accurately reflect such accruals of interest. A listing of all
deposits at the Branch Offices as of July 31, 1996, is included in Schedule IV
to this Agreement.
4.12 Loans. The Purchased Loans are evidenced by promissory notes or
other evidences of indebtedness which, with all ancillary security documents,
constitute valid and binding obligations of SELLER and, to the best of SELLER'S
knowledge, each of the other parties thereto, enforceable in accordance with
their terms, except as limited by applicable bankruptcy, insolvency, moratorium
or other similar laws affecting the enforcement of creditors' rights and
remedies generally from time to time in effect and by applicable laws which may
affect the availability of equitable remedies.
4.13 Other Information. No representation or warranty by SELLER contained
in this Agreement, or disclosure by SELLER in any certificate or other
instrument or document furnished or to be furnished by or on behalf of SELLER
pursuant to this Agreement, and no information furnished or to be furnished by
SELLER for use in applications to various regulatory authorities contains or
will contain any untrue statement of a material fact or omits or will omit to
state any material fact required to be stated herein or therein or which is
necessary to make the statements contained herein or therein, in light of the
circumstances under which they were or are made, not misleading in any material
respect.
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4.14 Advice of Changes. Between the date hereof and the Closing Date,
SELLER shall promptly advise the BANK in writing of any fact which, if existing
or known as of the date hereof, would have been required to be set forth or
disclosed in or pursuant to this Agreement or of any fact which, if existing or
known as of the date hereof, would have made any of the representations
contained herein untrue in any material respect.
4.15 Absence of Material Adverse Change. Since July 31, 1996, or such
earlier date stated in and with respect to information in the bid package, there
has been no material adverse change in the business, properties, operations or
prospects with respect to the Branch Offices. No facts or circumstances have
been discovered from which it reasonably appears that there is a significant
risk that there will occur a material adverse change in the business,
properties, operations or prospects of the Branch Offices.
4.16 Title to Property, etc. SELLER has and, upon consummation of this
transaction will have transferred to Buyer, good and marketable title to each of
the Assets free and clear of any mortgages, liens, encumbrances, charges,
easements or restrictions of any kind whatsoever other than (i) beneficial
easements and restrictions of record which will not impair the BANK's intended
use of the Property, and (ii) such easements or restrictions as may be
specifically approved in writing by the BANK. No claims or allegations have
been made or threatened which, if substantiated, would make the foregoing
representation and warranty untrue in any respect.
4.17 Environmental Matters. All of the following representations and
warranties are subject to matters disclosed in the Phase I Report (as
hereinafter defined). There are no material actions, suits, investigations,
liabilities, inquiries or other proceedings, rules, orders or citations
involving the Branch Offices, pending or, to the knowledge of SELLER threatened,
as a result of any failure of SELLER or any predecessor to SELLER to comply with
any requirement of federal, state, local or foreign law, civil or common, or
regulation relating to air, water, soil, solid waste management, hazardous or
toxic substances, or the protection of health or the environment, nor is there,
to the knowledge of SELLER any basis for any of the foregoing. None of the Real
Estate of the Branch Offices is, to the best knowledge of SELLER, contaminated
with any waste or hazardous substances. To the knowledge of SELLER, with
respect to the Branch Offices, SELLER is not and may not be deemed to be an
"owner or operator" of a "facility" or "vessel" which owns, possesses,
transports, generates or disposes of a "hazardous substance," as those terms are
defined in Section 9601 of the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 USCA Section 9601, et seq. SELLER
has no knowledge of any material environmental defect in or associated with the
Branch Offices or the Real Estate and has no knowledge of any condition existing
thereon which to its knowledge and belief would give rise to liability of the
BANK under federal, state or local environmental laws and regulations. SELLER
has not received notification from any person that any hazardous substances
defined under Section 104(4) of the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, has been disposed of, buried
underneath, percolated
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beneath or otherwise exists on the Real Estate or that it is a "potentially
responsible party" as defined under the above mentioned statute.
4.18 Change in Business Relationships. Except as contemplated by this
Agreement, SELLER has no knowledge, whether on account of this transaction or
otherwise, that: (a) any customer, agent, representative, or supplier of SELLER
with respect to the Branch Offices intends to discontinue, diminish, or change
its relationship with SELLER or the Branch Offices, the effect of which would be
material to the business of the Branch Offices; or (b) any person employed at a
Branch Office has given notice to SELLER's human resources officer that he or
she intends to terminate his or her employment during the twelve (12) months
following the date of this Agreement
ARTICLE FIVE: COVENANTS OF THE BANK
The BANK hereby covenants and agrees with SELLER as follows:
5.1 Conduct of Business; Certain Covenants. From and after the execution
and delivery of this Agreement and until the Closing Date, the BANK will: (a)
conduct its business and operate only in accordance with sound banking and
business practices; and (b) remain in good standing with all applicable banking
regulatory authorities.
5.2 Confidentiality. The BANK will cause all internal, nonpublic
financial and business information obtained by it from SELLER or otherwise to be
treated confidentially (exercising the same degree of care as it uses to
preserve and safeguard its own confidential information); provided, however,
that notwithstanding the foregoing, nothing contained herein shall prevent or
restrict the BANK from making such disclosure thereof as may be required by law
or as may be required in the performance of this Agreement. If the transactions
contemplated hereby shall not take place, all nonpublic financial statements,
documents and other materials of SELLER and all copies thereof shall be returned
to SELLER and shall not thereafter be used by the BANK.
5.3 Required Approvals. As soon as practicable after the execution of
this Agreement, the BANK shall at its expense: (a) submit applications with the
FDIC and the Michigan Financial Institutions Bureau for permission to acquire
the Deposit Liabilities and to establish branch offices at the locations at
which the Branch Offices are located; and (b) prepare and submit for filing any
and all other applications, filings, and registrations with, and notification
to, all federal and state authorities required on the part of the BANK for the
transactions described in this Agreement to be consummated. Thereafter, the
BANK shall pursue all such applications, filings, registrations, and
notifications diligently and in good faith, and shall file such supplements,
amendments, and additional information in connection therewith as may be
reasonably necessary for the transactions contemplated herein to be consummated.
The BANK shall deliver to SELLER, as soon as is reasonably practicable after the
filing thereof, copies of each and all of such applications, filings,
registrations, and notifications (except for any portions thereof deemed
confidential by the BANK), and any
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supplement, amendment, or item of additional information in connection
therewith (except for any portions thereof deemed confidential by the BANK).
The BANK shall also deliver promptly to SELLER a copy of each material notice,
order, opinion, and other item of correspondence received by the BANK from such
federal and state authorities (except for any portions thereof deemed
confidential by the BANK) and shall advise SELLER, at SELLER'S request, of
developments and progress with respect to such matters.
5.4 Use of SELLER'S Name. On and after the Closing Date, the BANK shall
not use the name of SELLER in any manner in connection with the operation of the
Branch Offices. No activity conducted by the BANK on or after the Closing Date
shall state or imply that SELLER is in any way involved as a partner, joint
venturer or otherwise in the business of the BANK.
5.5 Best Efforts to Satisfy Conditions. The BANK covenants with and
agrees that it: (a) will use its best efforts to satisfy the conditions to which
the obligations of SELLER are subject pursuant to this Agreement on or prior to
the Closing Date; and (b) will fully cooperate to facilitate the consummation of
the transactions contemplated by this Agreement, including but not limited to
the operational aspects of the transfer of the Deposit Liabilities and the
change of signage.
5.6 Further Assurances. On and after the Closing Date, the BANK shall
give such further assurances to SELLER and, upon SELLER'S request, shall
execute, acknowledge and deliver all such acknowledgments and other instruments
and take such further action as may be necessary and appropriate to effectively
relieve and discharge SELLER from any obligations remaining under the Deposit
Liabilities.
ARTICLE SIX: COVENANTS OF SELLER
SELLER hereby covenants and agrees with the BANK as follows:
6.1 Access to Records and Information; Personnel; Customers. Between the
date of this Agreement and the Closing Date, SELLER shall afford to the BANK and
its authorized agents and representatives access, during normal business hours
and upon reasonable notice, to the properties, operations, books, records,
contracts, documents and other information of or relating to the Branch Offices.
If such books, records, contracts, documents or other information is not located
at the Branch Offices, SELLER, upon the BANK'S request, will make the same (or
copies thereof) available at the Branch Offices to the extent it is reasonably
practicable to do so. SELLER shall cause its personnel to provide assistance in
the BANK'S investigation of matters relating to the Branch Offices; provided,
however, that the BANK'S investigation shall be conducted in a manner which does
not unreasonably interfere with SELLER'S normal operations, customers and
employee relations and provided further that the right of access and examination
granted hereby is subject to the requirements of financial privacy laws or
similar laws relating to account holders and other records.
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6.2 Conduct of Business; Certain Covenants. From and after the execution
and delivery of this Agreement and until the Closing Date, SELLER will: (a)
conduct the business of the Branch Offices only in the usual and ordinary course
of business; (b) retain all necessary business permits, licenses, registrations
and authorizations relating to the Branch Offices; and (c) use its best efforts
to maintain all existing contracts, customers, account relationships and all
other customer agreements, relationships and business of the Branch Offices.
6.3 Employee Matters. Beginning after a date mutually agreed by SELLER
and the BANK but not later than thirty (30) days prior to the Closing Date, the
BANK shall have the right to discuss with any or all employees of the Branch
Offices the possibility of their employment by the BANK after the Closing Date.
On or before the Closing Date, SELLER shall notify in writing all employees of
the Branch Offices (the "Employees") that the business of SELLER has been or
will be transferred to the BANK and that the BANK may offer to employ,
effective on the day following the Closing Date, such Employees as it at its
sole discretion so elects on terms and conditions of employment established by
the BANK. As of the Closing Date, all Employees that the BANK elects to hire
shall be discharged by the SELLER. SELLER shall be solely responsible for its
obligations to all discharged Employees, whether or not such discharged
Employees are hired by the BANK. Nothing contained herein shall preclude SELLER
from permitting an employee who declines employment with the BANK from accepting
another position with SELLER provided that SELLER has not encouraged such
employee to decline to accept such position with the BANK or to seek another
position with the SELLER. SELLER covenants with the BANK that prior to closing,
SELLER shall not, without the BANK's prior consent (i) increase the aggregate
full-time equivalent size of the work force at the Branch Offices above the
level existing at the date hereof or alter the composition of the work force at
the Branch Offices from the composition existing at the date hereof, (ii)
encourage any Employee to refuse an offer of employment by the BANK, (iii) enter
into any employment contract with any Employee, or (iv) increase the gross
annual compensation of any Employee pursuant to any evaluation other than in the
normal course of business. Notice of any increase in compensation for any
Employee shall be given to the BANK as soon as possible.
6.4 Negative Covenants. Except as may be required by regulatory
authorities, SELLER shall not, without the prior written consent of the BANK:
(a) transfer to SELLER'S other branches any of the Assets (it being understood
that any loans not being transferred pursuant hereto are not included in such
prohibition against transfer); (b) transfer to SELLER'S other branches any of
the Deposit Liabilities (it being understood that any deposits not being
transferred pursuant hereto are not included in such prohibition against
transfer) except upon the unsolicited request of a depositor in the ordinary
course of business; (c) transfer, assign, encumber or otherwise dispose of or
enter into any contract, agreement or understanding to transfer, assign,
encumber or otherwise dispose of any of the Assets except in the ordinary course
of business; (d) invest in any fixed assets or improvements to the Branch
Offices, except for improvements currently in progress; (e) enter into any
contract, commitment, lease or other transaction relating to the Branch Offices,
except in the ordinary
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course of business that can be terminated upon notice of thirty (30) days or
less; or (f) offer interest rates on any deposit account at the Branch Offices
in excess of those interest rates paid on similar deposit accounts at SELLER's
other branches which are located in the same general area as the Branch
Offices.
6.5 Confidentiality. SELLER will cause all internal, nonpublic financial
and business information obtained by it from the BANK or otherwise to be treated
confidentially (exercising the same degree of care as it uses to preserve and
safeguard its own confidential information); provided, however, that
notwithstanding the foregoing, nothing contained herein shall prevent or
restrict SELLER from making such disclosure thereof as may be required by law or
as may be required in the performance of this Agreement. If the transactions
contemplated hereby shall not take place, all nonpublic financial statements,
documents and other materials of the BANK and all copies thereof shall be
returned to the BANK and shall not thereafter be used by SELLER in any way
detrimental to the BANK.
6.6 Assistance in Obtaining Regulatory Approvals. SELLER agrees to use
all reasonable efforts to assist the BANK in obtaining all regulatory approvals
necessary to complete the transactions contemplated hereby, and SELLER will
provide to the BANK or to the appropriate regulatory authorities all information
reasonably required to be submitted by the BANK in connection with such
approvals.
6.7 Real Estate, Title, and Surveys. At least thirty (30) business days
prior to the Closing Date, SELLER shall deliver to the BANK copies of the deeds
which it shall deliver for recordation on the Closing Date which shall be
general warranty deeds, subject only to Permitted Exceptions (as hereinafter
defined). SELLER will convey good and marketable title to the Real Estate to
the BANK subject to Permitted Exceptions. SELLER shall, at its expense, cause
to be delivered to the BANK as soon as is reasonably practicable after the date
hereof, commitments for title insurance from a nationally recognized title
company agreeable to the BANK and SELLER (the "Title Insurer") insuring the
title and interest of the BANK in and to the Real Estate (including without
limitation, all easements and rights appurtenant thereto), together with copies
of all exceptions to title to the Real Estate. In addition an as-built survey
of the Real Estate prepared by a licensed surveyor shall be provided to the BANK
by SELLER. The cost of the survey shall be borne equally by SELLER and the
BANK.
Unless the BANK notifies SELLER of objections to any exceptions shown on
the title commitments or of any unacceptable survey defects in writing within
twenty (20) days of receipt of the title commitment or survey, as the case may
be, all such exceptions or survey defects reflected therein shall be deemed
Permitted Exceptions. The term "Permitted Exceptions" shall also mean any or
all of the following: (i) those special exceptions acceptable to the BANK
including restrictions, easements, rights of way, leases, and encumbrances
referred to in the title commitment to be delivered by SELLER to the BANK
pursuant to this Agreement which individually or in the aggregate do not
materially interfere with the present or intended use of the Real Estate; and
(ii) statutory liens for current taxes or assessments not yet due, or if due not
yet delinquent, or the validity of which is being
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contested in good faith by appropriate proceedings; and (iii) such other liens,
imperfections in title, charges, easements, restrictions, and encumbrances
which are not yet due and payable and which, individually and in the aggregate,
do not materially detract from the value of, or materially interfere with the
present or intended use of, the Real Estate.
If title commitments or surveys delivered pursuant to this Section 6.7
disclose title exceptions or survey defects other than Permitted Exceptions,
SELLER shall have forty-five (45) days from the date of receipt of notice
thereof (and the parties shall postpone the Closing Date, if necessary to enable
SELLER to undertake such activities) to have such exceptions or survey defects
cleared, or to have the title insurer commit to insure against loss or damage
that may be occasioned by such exceptions or survey defects by an endorsement in
form and substance satisfactory to the BANK. If the exceptions or survey
defects are not removed or endorsements over the exceptions or survey defects
are not obtained, the BANK, upon notice to SELLER within fifteen (15) days after
the expiration of the 45-day cure period, may elect (i) to terminate this
Agreement in which case this Agreement shall be null and void and the parties
shall be under no obligation to each other; or (ii) the BANK may elect to take
title notwithstanding the exceptions and such exception shall be deemed
Permitted Exceptions. SELLER shall be responsible for all real estate transfer
taxes.
6.8 Transfer of Data. Within forty-five (45) days of the execution of
this Agreement, SELLER shall provide to the BANK the tapes by which SELLER
proposes to transfer all data on the Deposit Liabilities. The format to be used
for transfer of data will be the format normally used by SELLER in the
electronic processing of its accounts. Any changes from the proposed format
shall be at the expense of the BANK.
6.9 Signs. SELLER shall, at its own expense, remove exterior signage
and the lettering and/or fascia of all interior signs from the Branch Offices.
SELLER agrees to remove such lettering and/or fascia from the Branch Offices on
or before the Closing Date or such other date as the parties may agree. SELLER
shall be responsible for all expenses incurred in patching or repairing the
surfaces surrounding the signs. SELLER shall not be responsible for expenses
incurred in connection with the construction or placement of any signs by the
BANK at the Branch Offices.
6.10 Best Efforts to Satisfy Conditions. SELLER covenants and agrees that
it: (a) will use its best efforts to satisfy the conditions to which the
obligations of the BANK are subject pursuant to this Agreement on or prior to
the Closing Date; and (b) will fully cooperate to facilitate the consummation of
the transactions contemplated by this Agreement including but not limited to the
operational aspects of the transfer of the Assets and the assumption of the
Deposit Liabilities and the change of signage.
6.11 Further Assurances. On and after the Closing Date, SELLER shall give
such further assurances to the BANK and, upon the BANK'S request, shall execute,
acknowledge and deliver all such acknowledgments and other instruments and take
such further action
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as may be necessary and appropriate to effectively transfer the Real Estate,
the other Assets, and the Deposit Liabilities to the BANK.
6.12 Installation. Following the receipt of all requisite regulatory
approvals or such earlier time as the parties may mutually agree, SELLER shall
allow the BANK and its representatives reasonable access to the Branch Offices
for the installation of telephone data transmission lines, security or alarm
devices, and other equipment in order to facilitate the transition of the
business conducted at the Branch Offices from SELLER to the BANK at the Closing.
BUYER shall not, however, unreasonably disrupt SELLER's operations in carrying
out these preparations. If for any reason this transaction is not consummated,
the BANK shall, at its expense, remove any such telephone lines and equipment
within a reasonable amount of time and restore, to the extent reasonably
practicable, the premises to its prior condition.
6.13 Covenant Not to Compete. SELLER hereby covenants and agrees that
following the consummation of this transaction and for a period of two (2) years
commencing as of the Closing Date:
(a) SELLER shall not establish, acquire, or operate any facilities
for the taking of deposits or the production of commercial loans within a
ten (10) mile radius of each of the Branch Offices (the "Protected
Territory"); and
(b) SELLER shall not solicit or directly communicate with respect to
deposit products with any person who is a customer with respect to the
Deposit Liabilities for the purpose of inducing such person to borrow or
deposit money or to purchase products or services from SELLER or any of its
affiliates.
This Section shall not preclude SELLER from making any communication: (i)
with any customer who, independent of any solicitation by SELLER subsequent to
the Closing Date, is or become SELLER's customer at a location other than a
Branch Office; (ii) with any customer who receives periodic statements from
SELLER with respect to any outstanding loan or deposit account owned or serviced
by or on behalf of SELLER after Closing; or (iii) by means of general
advertising or mass mailings or general solicitation which are not specifically
targeted to customers of a Branch Office. Additionally, this Section shall not
preclude SELLER from acquiring a financial institution which has existing
branches within the Protected Territory and shall neither apply to nor restrict
the solicitation by SELLER of public unit deposits (i.e., deposits by federal,
state, or local units of government, school districts, or governmental
agencies). For a period of one (1) year following the Closing Date, SELLER
shall not, without the BANK's written consent, solicit the employment by SELLER
of any Employee whom the BANK hires.
6.14 Inspection of Premises. Within twenty (20) business days after the
date of this Agreement, the BANK may inspect or cause to be inspected the
physical condition of the Real Estate and the Personal Property and give SELLER
written notice of any conditions which the BANK does not accept. Such
inspection may include, at the BANK'S election and expense,
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a Phase I environmental assessment. The BANK shall provide SELLER with a copy
of the environmental report prepared by its consultant (the "Phase I Report").
In the event that such notice is timely provided to SELLER, SELLER may either
elect to cure such conditions to the reasonable satisfaction of the BANK or
notify the BANK in writing within ten (10) days of the receipt of such notice
from the BANK of its election not to cure the same. In such event and in the
event that the BANK'S notice relates to a material environmental condition
affecting one or more Branch Offices, the BANK may elect to exclude the
affected Branch Office(s) from this transaction by providing written notice
thereof to SELLER within five (5) days of the receipt of SELLER'S notice. In
the event the BANK makes such election, the BANK shall nevertheless acquire the
Purchased Loans and assume the Deposit Liabilities associated with the affected
Branch Office(s). Alternatively, if SELLER elects not to cure any condition
identified in SELLER'S notice, the BANK may elect to terminate this Agreement
by providing written notice thereof to SELLER within five (5) days of the
receipt of SELLER'S notice. Failure to deliver any notice required hereby on a
timely basis shall constitute a waiver of any objections the BANK may have with
respect thereto. All other conditions of the Real Estate or Personal Property
shall be deemed accepted by the BANK. Except as to the extent that SELLER
otherwise expressly represents and warrants in Article Four, the Real Estate
and the Personal Property shall be transferred to the BANK in an "as is"
condition.
ARTICLE SEVEN: CONDITIONS PRECEDENT TO
SELLER'S OBLIGATIONS
All obligations of SELLER under this Agreement are subject to the
fulfillment (or waiver in writing by a duly authorized officer of SELLER), on or
before the Closing Date, of the following conditions:
7.1 Compliance by the BANK. All terms, covenants and conditions of this
Agreement to be complied with and performed by the BANK on or before the Closing
Date shall have been fully complied with and performed in all material respects.
7.2 Renewal of Representations and Warranties. The BANK'S
representations and warranties contained in this Agreement shall be deemed to
have been made again as of the Closing Date and, except as otherwise
contemplated by this Agreement, shall then be true in all material respects; and
the BANK shall have performed and complied with all material agreements,
conditions and covenants required by this Agreement to be performed or complied
with by the BANK prior to or at the Closing Date.
7.3 Delivery of Documents. The BANK shall have delivered the following
documents to SELLER:
(a) An Assignment and Assumption of Accounts Agreement in
substantially the form set forth in Exhibit B hereto.
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(b) An Assignment and Assumption of Loans and Loan Agreement in
substantially the form of Exhibit C hereto.
(c) An Assignment and Assumption of Contracts in substantially the
form set forth in Exhibit D hereto.
(d) An Assignment, Transfer and Appointment of Successor Trustee for
Individual Retirement Accounts in substantially the form set forth in
Exhibit E hereto.
(e) Resolutions of the BANK'S Board of Directors, certified by its
Secretary or Assistant Secretary, authorizing the signing and delivery of
this Agreement and the consummation of the transactions contemplated
hereby.
(f) A certificate of the Secretary or Assistant Secretary of the
BANK as to the incumbency and signatures of officers.
(g) A certificate signed by a duly authorized officer of the BANK
stating that the conditions precedent to the obligations of SELLER pursuant
to this Agreement have been fulfilled.
7.4 Litigation. No action, suit, proceeding, or claim shall have been
instituted, made, or threatened by any person relating to the validity or
propriety of the transactions contemplated by this Agreement.
ARTICLE EIGHT: CONDITIONS PRECEDENT
TO THE BANK'S OBLIGATIONS
All obligations of the BANK under this Agreement are subject to the
fulfillment (or waiver in writing by a duly authorized officer of the BANK), on
or before the Closing Date (except with respect to those conditions requiring
satisfaction prior to the Closing Date), of each of the following conditions:
8.1 Regulatory Approvals. All required licenses, approvals and consents
of any relevant state, federal or other regulatory agencies necessary to permit
the BANK to consummate the transactions contemplated hereby shall have been
obtained with no requirements imposed upon the BANK which, in the BANK'S
reasonable judgment, are unduly burdensome.
8.2 Compliance by SELLER. All terms, covenants and conditions of this
Agreement to be complied with and performed by SELLER on or before the Closing
Date shall have been fully complied with and performed in all material respects.
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8.3 Renewal of Representations and Warranties. SELLER'S representations
and warranties contained in this Agreement shall be deemed to have been made
again as of the Closing Date and, except as otherwise contemplated by this
Agreement, shall then be true in all material respects; and SELLER shall have
performed and complied with all material agreements, conditions and covenants
required by this Agreement to be performed or complied with by SELLER prior to
or at the Closing Date.
8.4 Documents. SELLER shall have delivered the following documents to the
BANK:
(a) An Assignment and Assumption of Accounts Agreement in
substantially the form set forth in Exhibit B hereto.
(b) An Assignment and Assumption of Loans and Loan Agreements in
substantially the form of Exhibit C hereto.
(c) An Assignment and Assumption of Contracts in substantially the
form set forth in Exhibit D hereto.
(d) An Assignment, Transfer and Appointment of Successor Trustee for
Individual Retirement Accounts in substantially the form set forth in
Exhibit E hereto.
(e) A Xxxx of Sale in substantially the form set forth in Exhibit F
hereto.
(f) Instruments of conveyance satisfactory to legal counsel for the
BANK, together with the title commitments, title insurance, and the surveys
with respect to the Real Estate conveying the Real Estate to the BANK in
compliance with Section 6.7 of this Agreement.
(g) Such other bills of sale, assignments, and other instruments and
documents as counsel for the BANK may reasonably require as necessary or
desirable for transferring, assigning and conveying to the BANK good,
marketable and insurable title to the Assets pursuant to this Agreement.
(h) Resolutions of SELLER'S Board of Directors, certified by
SELLER'S Secretary or Assistant Secretary, authorizing the signing and
delivery of this Agreement and the consummation of the transactions
contemplated hereby.
(i) A certificate from the Secretary or Assistant Secretary of
SELLER as to the incumbency and signature of officers.
(j) A certificate signed by a duly authorized officer of SELLER
stating that the conditions precedent to the obligations of the BANK
pursuant to the Agreement have been fulfilled.
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(k) Listings of the Deposit Liabilities as of the Estimation Date
(the "Deposit Listings") on magnetic tape or utilizing such other method of
information transfer as the parties may mutually agree, which Deposit
Listing shall include account number, the outstanding principal balance,
and the accrued interest.
(l) All Books and Records capable of being delivered to the BANK.
8.5 Absence of Certain Changes or Events. From the date hereof to the
Closing Date, there shall be and have been no material adverse changes in the
Real Estate, the other Assets, the Deposit Liabilities, or otherwise in the
business, operations or condition of the Branch Offices.
8.6 Litigation. No action, suit, proceeding, or claim shall have been
instituted, made, or threatened by any person relating to the validity or
propriety of the transactions contemplated by this Agreement.
8.7 Wire Transfer. BUYER shall have received the wire transfer from
SELLER required by Section 2.4.
ARTICLE NINE: TERMINATION
9.1 Termination Provisions. This Agreement may be terminated at any time
prior to the Closing Date:
(a) Mutual Consent. By mutual consent of SELLER and the BANK;
(b) Conditions Precedent. By either SELLER or the BANK in the event
the conditions precedent to their own obligations as set forth in Articles
Seven and Eight have not been met and satisfied or waived or shall have
become impossible of fulfillment; or
(c) Elapsed Time. By either SELLER or the BANK if the Closing Date
does not occur before December 31, 1996, or such later date as the parties
may mutually agree upon.
ARTICLE TEN: EXPENSES
10.1 The BANK'S Expenses. The BANK will pay all expenses incurred by it
incident to obtaining requisite regulatory approvals to permit the BANK to
consummate the transactions contemplated hereby and all expenses incurred by it
incident to the consummation of the transactions contemplated hereby (including
legal and accounting fees and expenses incurred for legal and accounting
services rendered to the BANK in connection with the transactions contemplated
hereby).
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10.2 SELLER'S Expenses. SELLER will pay all expenses incurred by it
incident to permit SELLER to consummate transactions contemplated hereby
(including the title insurance policy, survey cost, recording fees, stamp taxes,
as well as legal and accounting fees and expenses incurred for legal and
accounting services rendered to SELLER in connection with the transactions
contemplated hereby).
10.3 Brokers' Fees. SELLER will pay, indemnify and save harmless the BANK
from and against any and all finders' fees, brokers' commissions or other
similar fees or expenses incurred by SELLER (or the BANK as a result of
understandings, agreements or arrangements made by SELLER) and arising out of or
in connection with the transactions contemplated hereby. The BANK will pay,
indemnify and save harmless SELLER from and against any and all finders' fees,
brokers' commissions or other similar fees or expenses incurred by the BANK (or
SELLER as a result of understandings, agreements or arrangements made by the
BANK) and arising out of or in connection with the transactions contemplated
hereby.
ARTICLE ELEVEN: OTHER AGREEMENTS
11.1 Backup Withholding. Any amounts required by any governmental
agencies to be withheld from any of the Deposit Liabilities (the "Withholding
Obligations") will be handled as follows:
(a) Any Withholding Obligations required to be remitted to the
appropriate governmental agency prior to the Closing Date will be withheld
and remitted by SELLER;
(b) Any Withholding Obligations required to be remitted to the
appropriate governmental agency on or after the Closing Date will be
remitted by the BANK. At the Closing, SELLER will remit to the BANK all
sums withheld by SELLER pursuant to Withholding Obligations which funds are
or may be required to be remitted to governmental agencies on or after the
Closing Date.
11.2 XXX. SELLER shall be responsible for reporting through and including
the Closing Date all federal and state income tax matters associated with XXX
deposits assumed by the BANK. The BANK shall report all such information
beginning on the date following the Closing Date. Said reports shall be made to
the holder of deposit accounts, as the case may be, and to the applicable
federal and state regulatory agencies. SELLER and the BANK shall each provide to
the other information in its possession reasonably requested by the other to
satisfy its obligations hereunder.
11.3 Interest Reporting. SELLER shall report through and including the
Closing Date, all interest credited to, interest paid by, interest withheld
from, and early withdrawal penalties charged to the Deposit Liabilities. The
BANK shall report all such information beginning on the day following the
Closing Date. Said reports shall be made to the holder of deposit accounts, as
the case may be, and to the applicable federal and state regulatory
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agencies. SELLER and the BANK shall each provide to the other information in
its possession reasonably requested by the other to satisfy its obligations
hereunder.
11.4 Pre-Closing Notices to Depositors. On such date as the parties may
agree, or in the absence of such an agreement on the date which is thirty (30)
days (or if such date shall not be a business day, the next succeeding business
day) prior to the Closing Date, SELLER and the BANK will notify all deposit
account owners at the Branch Offices (the "Depositors") whose accounts are to be
conveyed to and assumed by the BANK of the pending transfer of those accounts.
This notice will include a statement by SELLER urging Depositors to maintain
their deposits at the Branch Offices with the BANK. This notice will be in a
form acceptable to both parties and in compliance with all federal regulations.
The cost of such notice shall be borne equally by SELLER and the BANK. SELLER
will cooperate with the BANK in providing such other notices to customers of the
Branch Offices as the BANK may reasonably request. SELLER and the BANK hereby
acknowledge and agree that the notices and other communications to the
Depositors contemplated hereby will not include information concerning any plans
the BANK may have to, after the Closing Date, change rates or other terms and
conditions with regard to the Deposit Liabilities.
11.5 Post Closing Certification. Within five (5) business days after the
Closing Date, SELLER shall deliver to the BANK a statement setting forth the
aggregate amount of Deposit Liabilities as of the close of business on the
Closing Date, including accrued interest thereon, with a certification of the
chief financial officer, controller or other appropriate officer of SELLER,
certifying that, the information contained in the statement is true, correct,
and complete.
11.6 Post Closing Access to Records. After the Closing Date, SELLER shall
provide the BANK with access to, and will upon the BANK'S request provide the
BANK with copies of any Records which are not capable of being transferred to
the BANK pursuant to the Agreement. For a period of time prescribed in SELLER's
normal record retention policy, but not less than one (1) year from the Closing
Date, or such longer or shorter period of time as SELLER and BANK may mutually
agree, SELLER shall use its best efforts to preserve in paper, microfiche,
electronic, or other appropriate form all records which are not delivered to the
BANK and provide the BANK with reasonable assistance in assembling,
reconstructing, or interpreting such records.
11.7 Risk of Loss. The risk of loss or damage by fire or other casualty
or cause to the Assets until the Closing Date shall be upon SELLER. In the
event of such loss or damage prior to the Closing Date, SELLER shall promptly
restore, replace or repair the damaged Assets to the previous condition at its
sole cost and expense; provided, however, that SELLER shall have no obligation
under this Agreement to restore, replace or repair any of the Assets to the
extent such restoration, replacement or repair is not covered by insurance
proceeds or, in the good faith opinion of SELLER, is not reasonably practical.
In the event that such loss or damage shall not be restored, replaced or
repaired by the Closing Date, the BANK shall, at its option, either: (1) proceed
with the Closing and receive all insurance proceeds
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to which SELLER would be entitled as a result of such loss or damage; or (2)
defer the Closing Date until such restorations, replacements or repairs are
made (provided that no such deferral shall affect the termination rights of the
parties specified in this Agreement); provided, however, if the BANK defers the
Closing Date and (a) if, on the date that would have been the Closing Date if
no loss or damage had occurred, SELLER has not commenced, or made arrangements
for restoration, replacement or repairs; or (b) if sixty (60) days after the
event of such loss or damage, such restoration, replacement or repair is not
completed, the BANK may, at its sole option, terminate this Agreement by
written notice to SELLER, whereupon no party to this Agreement shall have any
liability to the other to this Agreement, and this Agreement in its entirety,
except for the provisions of this Section 11.7 (which will survive such
termination), shall be deemed null, void and of no further force or effect.
The net book value of the Assets for purposes of Section 2.4 shall exclude any
monies spent by SELLER in restoring, repairing or replacing any of the Assets
pursuant to this Section 11.7.
ARTICLE TWELVE: INDEMNIFICATION
12.1 Indemnification of the BANK. SELLER shall indemnify, hold harmless
and defend the BANK from and against any and all damage, loss, liability, cost,
claim, or expense (including reasonable legal fees and expenses) incurred or
suffered by the BANK in connection with SELLER'S operation of the Branch Offices
on or prior to the Closing Date. SELLER shall indemnify and save the BANK and
its respective officers, directors, employees, and other agents and the BANK's
successors and assigns, harmless from and against any actions, assessments,
losses, costs, damages or expenses, including reasonably attorney's fees,
sustained or incurred by them resulting from or arising out of or by virtue of
any claim for breach of any covenant, representation or warranty made by SELLER
in this Agreement.
12.2 Indemnification of SELLER. The BANK shall indemnify, hold harmless
and defend SELLER from and against any and all damage, loss, liability, cost,
claim, or expense (including reasonable legal fees and expenses) incurred or
suffered by SELLER in connection with the BANK'S operation of the Branch Offices
after the Closing Date. The BANK shall indemnify and save SELLER and its
respective officers, directors, employees, and other agents harmless from and
against any actions, assessments, losses, costs, damages, or expenses, including
reasonable attorney's fees, sustained or incurred by them resulting from or
arising out of or by virtue of any claim for breach of any covenant,
representation or warranty made by the BANK in this Agreement.
12.3 Survival of Representations and Warranties. All representations and
warranties of SELLER and BANK contained in this Agreement shall survive the
Closing, but only for a period of six (6) years from the Closing Date. No
representations or warranties shall be extinguished by the Closing.
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12.4 Remedies. The remedies of each of the parties with respect to any
claim or cause of action relating to or arising out of this Agreement or this
transaction shall be cumulative and shall not be exclusive. The election of a
party to pursue one or more remedies consecutively or simultaneously shall not
preclude that party from pursuing other remedies at any time permitted under
this Agreement. Nonetheless, any recovery with respect to a claim or cause of
action obtained pursuant to one remedy shall accordingly reduce the amount
recoverable as to that claim or cause of action pursuant to any other remedy. It
is the intent of the parties that no double recovery may be obtained by any
party under any circumstances.
ARTICLE THIRTEEN: AMENDMENT, WAIVER AND NOTICE
13.1 Amendment. Any duly authorized officer of SELLER or the BANK may
make, execute and deliver such amendment or amendments, modifications, or
supplements to this Agreement as any one of such officers signing any such
amendment, modification or supplement on behalf of a party may approve, as shall
be conclusively evidenced by his or her signature to any such amendment,
modification or supplement in such manner as may be agreed upon by them in
writing at any time.
13.2 Waiver. The failure of either party at any time or times to require
performance at any time prior to the Closing Date of any provision hereof shall
in no manner affect such party's right at a later time to enforce the same. No
waiver at any time prior to the Closing Date by either party of any condition,
or of the breach of any term, covenant, representation or warranty contained in
this Agreement, whether by conduct or otherwise, in any one or more instances
shall be deemed to be or construed as a further or continuing waiver of any such
condition or breach or a waiver of any other condition or the breach of any
other term, covenant, representation or warranty of this Agreement.
13.3 Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
delivered or mailed, registered or certified mail, postage prepaid, as follows:
If to the BANK:
Independent Bank East Michigan
0000 Xxxx Xxxx Xxxx
Xxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxx
President and Chief Executive Officer
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with a copy to:
Varnum, Riddering, Xxxxxxx & Xxxxxxx
Xxxxxxxxxxx Xxxxx
X.X. Xxx 000
Xxxxx Xxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxxxxx, Esq.
If to SELLER:
First of America Bank-Michigan, National Association
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxx
Chairman and Chief Executive Officer
with a copy to:
Xxxxxx & Xxxxxx Attorneys, P.C.
The Kalamazoo Building, Suite 400
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
ARTICLE FOURTEEN: GENERAL
14.1 Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Michigan, and, to the
extent applicable, to the laws of the United States.
14.2 Entire Agreement. This Agreement the Schedules and the Exhibits
attached hereto set forth the entire agreement and understanding of the parties
with respect to the transactions contemplated hereby and supersede all prior
agreements, arrangements and understandings related to the subject matter
hereof.
14.3 Method of Consent or Waiver. Any consent hereunder or any waiver of
conditions or covenants as may be herein provided for, subject to all of the
other requirements contained in this Agreement, shall be evidenced in writing,
properly executed by a duly authorized officer of the party so electing
hereunder.
14.4 Public Announcement. SELLER and the BANK shall consult with one
another concerning the form and substance and timing of any press release of any
matters relating to this Agreement.
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14.5 No Assignment. Neither party shall assign or transfer any right or
interest in and to this Agreement, without the prior written consent of the
other party, except that SELLER may assign its rights hereunder to any successor
thereto by merger or otherwise.
14.6 Counterparts. This Agreement may be executed simultaneously in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
14.7 Reliance on Headings, Etc. The Article, Section and Subsection
Headings contained in this Agreement are inserted for convenience only and shall
not affect in any way the meaning or interpretation of this Agreement.
14.8 Severability Clause. If any provisions of this Agreement shall be
held invalid, the remainder shall, nevertheless, be deemed valid and effective.
IN WITNESS WHEREOF, the undersigned parties hereto have duly executed this
Agreement on the date first above written.
WITNESSES INDEPENDENT BANK EAST MICHIGAN
___________________ By: ______________________________________
Xxxxxx X. Xxxx
Its: President and Chief Executive Officer
FIRST OF AMERICA BANK-MICHIGAN,
NATIONAL ASSOCIATION
___________________ By: ______________________________________
Xxxxxxx X. Xxxx
Its: Chairman and Chief Executive Officer
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