Exhibit 2.6
OFFICE PURCHASE AND ASSUMPTION AGREEMENT
BY AND BETWEEN
BANK ONE, ARIZONA, NATIONAL ASSOCIATION
000 XXXXX XXXXXXX XXXXXX
XXXXXXX, XXXXXXX 00000
BANK ONE, COLORADO, NATIONAL ASSOCIATION
0000 00XX XXXXXX
XXXXXX, XXXXXXXX 00000
BANK ONE, UTAH, NATIONAL ASSOCIATION
000 XXXX XXXXXXXX
XXXX XXXX XXXX, XXXX 00000
AND
COMMUNITY FIRST BANKSHARES, INC.
000 XXXX XXX.
XXXXX, XXXXX XXXXXX 00000-0000
DATED AS OF THE 10TH DAY OF SEPTEMBER, 1997
TABLE OF CONTENTS
1. PURCHASE AND ASSUMPTION. . . . . . . . . . . . . . . . . . . . . . . . . .1
1.01 Purchase and Sale of Assets. . . . . . . . . . . . . . . . . . . . .1
1.02 Transfer of Assets . . . . . . . . . . . . . . . . . . . . . . . . .2
1.03 Acceptance and Assumption. . . . . . . . . . . . . . . . . . . . . .4
1.04 Payment of Funds . . . . . . . . . . . . . . . . . . . . . . . . . .7
2. CONDUCT OF THE PARTIES PRIOR TO CLOSING. . . . . . . . . . . . . . . . . 10
2.01 Covenants of BANK ONE. . . . . . . . . . . . . . . . . . . . . . . 10
2.02 Covenants of BUYER . . . . . . . . . . . . . . . . . . . . . . . . 15
2.03 Covenants of All Parties . . . . . . . . . . . . . . . . . . . . . 17
3. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . . . 17
3.01 Representations and Warranties of BANK ONE . . . . . . . . . . . . 17
3.02 Representations and Warranties of BUYER. . . . . . . . . . . . . . 23
4. ACTIONS RESPECTING EMPLOYEES AND PENSIONS
AND EMPLOYEE BENEFIT PLANS . . . . . . . . . . . . . . . . . . . . . . . 24
4.01 Employment of Employees. . . . . . . . . . . . . . . . . . . . . . 24
4.02 Terms and Conditions of Employment . . . . . . . . . . . . . . . . 25
4.03 Compliance with Law. . . . . . . . . . . . . . . . . . . . . . . . 28
4.04 Actions to be Taken by BANK ONE. . . . . . . . . . . . . . . . . . 28
5. CONDITIONS PRECEDENT TO CLOSING. . . . . . . . . . . . . . . . . . . . . 29
5.01 Conditions to BANK ONE's Obligations . . . . . . . . . . . . . . . 29
5.02 Conditions to BUYER's Obligations. . . . . . . . . . . . . . . . . 31
5.03 Non-Satisfactions of Conditions Precedent. . . . . . . . . . . . . 33
5.04 Waivers of Conditions Precedent. . . . . . . . . . . . . . . . . . 33
6. CLOSING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
6.01 Closing and Closing Date . . . . . . . . . . . . . . . . . . . . . 34
6.02 BANK ONE's Actions at Closing. . . . . . . . . . . . . . . . . . . 34
6.03 BUYER's Actions at Closing . . . . . . . . . . . . . . . . . . . . 36
6.04 Methods of Payment . . . . . . . . . . . . . . . . . . . . . . . . 38
6.05 Availability of Closing Documents. . . . . . . . . . . . . . . . . 39
6.06 Effectiveness of Closing . . . . . . . . . . . . . . . . . . . . . 39
7. CERTAIN TRANSITIONAL MATTERS . . . . . . . . . . . . . . . . . . . . . . 39
7.01 Transitional Action by BUYER . . . . . . . . . . . . . . . . . . . 39
7.02 Transitional Action by BANK ONE. . . . . . . . . . . . . . . . . . 42
7.03 Overdrafts and Transitional Action . . . . . . . . . . . . . . . . 47
7.04 ATMs & Debit Cards . . . . . . . . . . . . . . . . . . . . . . . . 48
7.05 Environmental Matters. . . . . . . . . . . . . . . . . . . . . . . 49
7.06 Effect of Transitional Action53
8. GENERAL COVENANTS AND INDEMNIFICATION. . . . . . . . . . . . . . . . . . 53
8.01 Confidentiality Obligations of BUYER . . . . . . . . . . . . . . . 53
8.02 Confidentiality Obligations of BANK ONE. . . . . . . . . . . . . . 54
8.03 Indemnification by BANK ONE. . . . . . . . . . . . . . . . . . . . 55
8.04 Indemnification by BUYER . . . . . . . . . . . . . . . . . . . . . 56
8.05 Solicitation of Customers by BUYER Prior to Closing. . . . . . . . 57
8.06 Solicitation of Customers by BANK ONE After the Closing. . . . . . 57
8.07 Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . 58
8.08 Operation of the Offices . . . . . . . . . . . . . . . . . . . . . 58
8.09 Information After Closing. . . . . . . . . . . . . . . . . . . . . 59
8.10 Survival of Covenants. . . . . . . . . . . . . . . . . . . . . . . 60
8.11 Individual Retirement Accounts . . . . . . . . . . . . . . . . . . 60
8.12 Covenant Not to Compete. . . . . . . . . . . . . . . . . . . . . . 60
9. TERMINATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
9.01 Termination by Mutual Agreement. . . . . . . . . . . . . . . . . . 61
9.02 Termination by BANK ONE. . . . . . . . . . . . . . . . . . . . . . 61
9.03 Termination by BUYER . . . . . . . . . . . . . . . . . . . . . . . 62
9.04 Effect of Termination. . . . . . . . . . . . . . . . . . . . . . . 63
10. MISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . 63
10.01 Expenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
10.02 Certificates. . . . . . . . . . . . . . . . . . . . . . . . . . . 63
10.03 Termination of Representations and Warranties . . . . . . . . . . 64
10.04 Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
10.05 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
10.06 Parties in Interest: Assignment; Amendment. . . . . . . . . . . . 67
10.07 Headings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
10.08 Terminology . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
10.09 Flexible Structure. . . . . . . . . . . . . . . . . . . . . . . . 69
10.10 Press Releases. . . . . . . . . . . . . . . . . . . . . . . . . . 70
10.11 Entire Agreement. . . . . . . . . . . . . . . . . . . . . . . . . 70
10.12 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . 70
10.13 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . 70
10.14 Tax Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
10.15 Good Faith Deposit. . . . . . . . . . . . . . . . . . . . . . . . 70
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SCHEDULES:
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 - Deposit Accounts
Schedule H - Office Loans
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 Closing 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 10th day of September, 1997, by and between Community First
Bankshares, Inc., a corporation organized and existing under and by virtue of
the laws of the State of Delaware and a registered bank holding company under
the Bank Holding Company Act of 1968, as amended, with its principal office
located at 000 Xxxx Xxx., Xxxxx, Xxxxx Xxxxxx ( the "BUYER" herein), on its own
behalf and on behalf of its subsidiary insured depository institutions, and Bank
One, Arizona, National Association, a national banking association with its
principal office at 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000, Bank One,
Colorado, National Association, a national banking association with its
principal office at 0000 00xx Xxxxxx, Xxxxxx, Xxxxxxxx 00000, and Bank One,
Utah, National Association, a national banking association with its principal
office at 00 Xxxx Xxxxxxxx, Xxxx Xxxx Xxxx, Xxxx 00000 (each respectively "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.
1.01 PURCHASE AND SALE OF ASSETS. At the Closing, as defined in Section
6.01 hereof (the "Closing"), BUYER shall purchase and acquire, and
BANK ONE shall sell and assign, the real estate and other assets
described in Section 1.02 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.
1.02 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 6.01 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");
(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 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, controller and printer and signs and stands, printed
supplies and documents bearing any BANK ONE or affiliate name
and/or logo, and network communications equipment and related
devices. 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 1.03(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 August 31, 1997, 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 August 31, 1997, shall be subject to the
prior written consent of BUYER;
(g) OFFICE LOANS. All right, title and interest in and to all those
loans 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 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 a pre-approved 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 original records and documents
related to the Assets transferred or liabilities assumed by BUYER
which are maintained by BANK ONE and available for delivery to
BUYER in whatever form presently maintained by BANK ONE
including, but not limited to, those relating to the Deposit
Accounts and 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.
1.03 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 1.02
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. 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 6.04 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 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.
1.04 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 6.04 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 day
immediately preceding the Closing Date) plus the deferred
expenses identified in Section 1.03(d) hereof prorated as of the
close of business on the day preceding the Closing Date less an
amount equal to the sum of:
(i) the amount of cash on hand at the Offices transferred to
BUYER as of the close of business on the Closing Date;
(ii) 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;
(iii) 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;
(iv) six percent (6%) 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 interest posted to such accounts as of the close
of business 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";
(v) the amount of prepaid expenses described in Section
1.02(f) of this Agreement, prorated as of the close of
business on the day immediately preceding the Closing
Date;
(vi) the book value of the Office Loans together with accrued
and unpaid interest thereon computed as of the close of
business on the Closing Date; and
(vii) the sum of $10,000.00 for each ATM or CBCT located at the
Offices.
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 1.04(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 6.04 hereof. The parties
shall execute a Preliminary Settlement Statement at the Closing
and a Final Settlement Statement post-closing in accordance with
section 6.04 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 1.02(f) hereof and deferred
expenses described in Section 1.03(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, and 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. With respect to premiums paid to the FDIC
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 6.04 hereof.
(c) EXPENSES RELATING TO REAL PROPERTY. 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
2.01(b) and 5.02(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 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, shall be allocated to, and shall be borne,
solely and exclusively, by BUYER. BANK ONE shall reimburse BUYER
at the Closing for all the costs, fees and expenses allocated to
BANK ONE pursuant to this Section 1.04(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 1.04(c) but paid by BANK ONE in the manner specified in
Section 6.04 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.
2. CONDUCT OF THE PARTIES PRIOR TO CLOSING.
2.01 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 2.03 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, 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 in
an amount satisfactory to BUYER (but not in excess of the
appraised value of such properties or, as applicable, the amount
of the leasehold interest to be transferred to BUYER pursuant to
the Third Party Lease) covering the Owned Real Estate and Leased
Real Estate, 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, or (ii) 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 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
have the right to obtain at its sole cost and expense duly
certified surveys, 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.
(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. If BUYER terminates
this Agreement, both parties shall thereupon be relieved from all
further obligations hereunder.
(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 1.04(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 THE LEASE. 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.
2.02 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 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 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 2.01(I), 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).
2.03 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.
3.01 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 association duly organized, validly existing, and in good
standing under the laws of the United States 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 Association 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, 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 30 days past due for
payment.
(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 Section 1445.
(u) For purposes of this section 3.01, the "knowledge" of BANK ONE
shall mean the actual knowledge of the President of each
respective individual banking association with respect to matters
involving that individual banking association.
3.02 REPRESENTATIONS AND WARRANTIES OF BUYER. BUYER represents and
warrants to BANK ONE as follows:
(a) GOOD STANDING AND POWER OF BUYER. BUYER is a corporation duly
organized, validly existing, and in good standing under the laws
of the State of Delaware and a registered bank holding company
under the Bank Holding Company Act of 1968, as amended, with
corporate power to own its properties and to carry on its
business as presently conducted. Banking subsidiaries of BUYER
are insured banks, 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.
4.01 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 25 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.
4.02 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 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, 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, except as set forth in (e)
below and for vacation, not for purposes of benefit accruals,
including, without limitation, 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 (except vacation, sick, and
personal days accrued but unused by the Transferred Employee
through the Closing Date which BUYER hereby agrees to grant to
such Transferred Employees following the Closing Date) arising
under BANK ONE's employee benefit plans and employee programs
prior to the Closing Date (but not including 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.
(f) 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.
4.03 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.
4.04 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 six 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 (iii) increase the compensation of any Transferred
Employee except pursuant to existing BANK ONE policies and
procedures.
The obligations of BANK ONE pursuant to this Section 4.04 shall
survive the Closing.
5. CONDITIONS PRECEDENT TO CLOSING.
5.01 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 may 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.
5.02 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
2.01(c) 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
2.01(g) herein and BANK ONE complies with said Section 2.01(g),
(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.
5.03 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.
5.04 WAIVERS OF CONDITIONS PRECEDENT. The conditions specified in
Sections 5.01 and 5.02 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.
6.01 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.
6.02 BANK ONE'S ACTIONS AT CLOSING. At the Closing (unless another time is
specifically stated in Section 6.04 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 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, orders and contracts and agreements
between BANK ONE and depositors of the Offices and
borrowers with respect to Office Loans, and records of
similar character; and
(ii) canceled checks and/or negotiable orders of withdrawal
representing charges to depositors; and
(iii) a trial balance listing of records of account; and
(iv) all other miscellaneous records, statements and other data
and materials maintained by BANK ONE relative to any
Deposit Liabilities being assumed by BUYER and Office
Loans being acquired by BUYER; and
(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.
6.03 BUYER'S ACTIONS AT CLOSING. At the Closing (unless another time is
specifically stated in Section 6.04 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
(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; and
(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.
6.04 METHODS OF PAYMENT. Subject to the adjustment procedures set forth in
this Section 6.04, 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 1.04(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 1.04(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 the day immediately
preceding the Closing Date, (b) cash on hand at the Offices as of the
close of business on the day immediately 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
the day immediately 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
1.04 hereof, based upon actual Deposit Accounts, Office Loans and cash
transactions which took place on the Closing Date or which took place
prior to the Closing Date but which were not reflected as of the close
of business on the day immediately preceding the Closing Date and
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.
6.05 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.
6.06 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 6.04,
the Acquisition shall be deemed to be effective and the Closing shall
be deemed to have occurred.
7. CERTAIN TRANSITIONAL MATTERS.
7.01 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
7.01 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. The provisions of this subsection 7.01(a) shall in no
way limit BUYER's duties or obligations arising under
Section 1.03(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.
(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 7.02(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 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.
(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) The duties and obligations of Buyer in this section 7.01 shall
survive the Closing.
7.02 TRANSITIONAL ACTION 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.
(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 7.02(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 2:00 P.M. local Phoenix, Arizona, 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 the BANK ONE Phoenix Data Processing Center.
(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. 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.
(f) Not sooner than one (1) business day prior to the Closing nor
later than the close of business on the Closing Date, BANK ONE
shall terminate its ATM/debit card service. Such terminations
will be preceded by the notice described in Section 7.01(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 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 2:00 P.M. Phoenix, Arizona, time on each
business day following the Closing and continuing for one hundred
twenty (120) 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 the BANK ONE Phoenix or Denver Data Processing
Centers, 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 of execution and delivery of this
Agreement. 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 noted, 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 in the amount of $50.00 per day and
$.25 per item.
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 7.02(g)
might be effected promptly.
BANK ONE shall not be liable to BUYER for any failure to provide
the data required by this Section 7.02(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.
(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) The duties and obligations of the parties in this section 7.02
shall survive the Closing.
7.03 OVERDRAFTS AND TRANSITIONAL ACTION. Overdrafts paid on the Deposit
Accounts with respect to ledger dates after the Closing Date will be
the responsibility and risk of BUYER. Overdrafts approved with
respect to ledger dates more than four (4) business days prior to the
Closing Date will be the responsibility and risk of BANK ONE.
Overdrafts approved with respect to ledger dates during the period
beginning four (4) business days prior to the Closing Date through the
Closing Date, inclusive, will initially be the responsibility and risk
of BUYER (other than overdrafts of customers who are specifically
identified in writing by BUYER to BANK ONE not less than four (4)
business days prior to the Closing Date); provided, however, that
BUYER shall have the right to retransfer any such overdrafts back to
BANK ONE for BANK ONE's responsibility and at its risk within six (6)
days following the Closing Date, and BANK ONE will repurchase all
rights in respect of such overdrafts from BUYER for the amount of each
such overdraft outstanding at the time it is retransferred back to
BANK ONE less the amount of the Acquisition Consideration paid by
BUYER to BANK ONE attributable to such overdrafts; provided, however,
that BUYER shall have closed all accounts on which each such overdraft
exists not later than the date of such retransfer.
7.04 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 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 w 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 6.04 hereof to reflect all such transactions which cannot
be reasonably calculated as of the Closing.
7.05 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. Such
Phase I Assessments have been dated (or supplemented) on or after
January 1, 1997.
(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 9.01 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 7.05), 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 ofthe 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 7.05 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 7.05, 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 sbestos-containing materials.
(h) For purposes of this Section 7.05, 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 7.05, 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.
7.06 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.
8.01 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 8.01 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 8.01 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.
8.02 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 8.02 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 8.02
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 BANC ONE CORPORATION and BANK ONE's affiliates for the
purpose of consummating the transaction which is the subject of this
Agreement.
8.03 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 or Office Loans 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 or
Office Loans prior to the Closing. The obligations of BANK ONE under
this Section 8.03 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 8.03, 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 obligations of BANK ONE pursuant to this
Section 8.03 shall survive the Closing.
8.04 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 BUYER 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 7.04 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 8.04 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 8.04, 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 obligations of BUYER pursuant
to this Section 8.04 shall survive the Closing.
8.05 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.
8.06 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.
8.07 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 30 days
following the Closing Date. 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 of each of the parties hereto pursuant to this
Section 8.07 shall survive the Closing.
8.08 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 "BANC
ONE" or the name of any affiliate of BANC 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 1.02(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.
8.09 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.
8.10 SURVIVAL OF COVENANTS. The obligations and covenants of the parties
under this Section 8 shall survive the Closing.
8.11 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.
8.12 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 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, BANC ONE CORPORATION, or an affiliate thereof with any third
party following the Closing Date.
9. TERMINATION.
9.01 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.
9.02 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
5.01 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 midnight, Ohio time, December 15, 1997, (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
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 reasonable deem
necessary or appropriate are not available prior to the Closing
Date without additional cost or expense to BANK ONE.
9.03 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
5.02 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
(c) 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
(e) 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.
9.04 EFFECT OF TERMINATION. The termination of this Agreement pursuant to
Sections 9.02 or 9.03 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.
10.01 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.
10.02 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.
10.03 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 3.01(o) of this Agreement.
10.04 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.
10.05 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, Arizona, National Association
Attention: R. Xxxxxxx Xxxxxxx, Chairman and CEO
000 Xxxxx Xxxxxxx Xxx.
Xxxxxxx, Xxxxxxx 00000
Bank One, Colorado, National Association
Attention: Xxxxxxx X. Xxxxxxxx, Chairman and CEO
0000 00xx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Bank One, Utah, National Association
Attention: Xxxx X. Xxxxxxx, Chairman, President, and CEO
00 Xxxx Xxxxxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
With a copy to:
BANC ONE CORPORATION
Attention: Xxxxxx X. Xxxxxxx
Senior Vice President and General Counsel
000 Xxxx Xxxxx Xxxxxx
00xx Xxxxx
Xxxxxxxx, Xxxx 00000-0000
If to BUYER:
Community First Bankshares, Inc.
000 Xxxx Xxx.
Xxxxx, Xxxxx Xxxxxx 000000-0000
Attention: Xxxxxx X. Xxxxxxxxx, President and CEO
With a copy to:
Xxxxxx X. Xxxxxxx, Esq.
Xxxxxxxxx & Xxxxxx, P.L.L.P.
4200 IDS Center
00 Xxxxx Xxxxxx Xx.
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
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.
10.06 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
or 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. Anything to the contrary herein notwithstanding, BUYER
may assign various assets and liabilities to wholly-owned
subsidiary insured depository institutions while remaining
jointly and severally liable, together with such assignee, for
any duties and obligations relating thereto with the exception of
payment of Deposit Liabilities.
10.07 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.
10.08 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 2.01(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.
10.09 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 and BUYER shall approve the form and
substance of any press release of any matters relating to this
Agreement issued by the other.
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 counter-
parts, 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 $500,000.00 for each state in which an
Office which is the subject of this Agreement is located (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 9.02(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 9.02 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.
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, Arizona,
ATTEST: National Association
/s/ Xxxx Xxxxxx By: /s/ R. Xxxxxxx Xxxxxxx
-------------------------- -------------------------
R. Xxxxxxx Xxxxxxx
Its: Chairman and CEO
ATTEST: Bank One, Colorado,
National Association
/s/ Xxxxxxx Gree By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------- -------------------------
Xxxxxxx X. Xxxxxxxx
Its: Chairman and CEO
ATTEST: Bank One, Utah,
National Association
/s/ M. Xxxxx Xxxxxxxxx By: /s/ Xxxx X. Xxxxxxx
-------------------------- -------------------------
Xxxx X. Xxxxxxx
Its: Chairman, President and
CEO
ATTEST: Community First Bankshares,
Inc.
/s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxx
-------------------------- -------------------------
Xxxxxx X. Xxxxxx
Its: Executive Vice President
Banking Group
SCHEDULES
TO
OFFICE PURCHASE AND ASSUMPTION AGREEMENT
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 - Deposit Accounts
Schedule H - Office Loans
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 Closing Statement
Schedule R - Listing of Employees of Offices
Schedule S - Put Provisions for Office Loans
