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PURCHASE AND ASSUMPTION AGREEMENT
dated as of
March 10, 1997
between
XXXXX FARGO BANK (TEXAS),
NATIONAL ASSOCIATION
and
NATIONAL BANCSHARES CORPORATION OF TEXAS
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This PURCHASE AND ASSUMPTION AGREEMENT, dated as of this 10th day of
March, 1997 (this "Agreement"), is by and between Xxxxx Fargo Bank (Texas),
National Association ("Seller") and National Bancshares Corporation of Texas
("Purchaser").
RECITALS
A. Seller. As of the date hereof, Seller is a national banking
association, organized under the laws of the United States, with its principal
office located in Houston, Texas.
B. Purchaser. Purchaser is a Multi-bank Holding Company, organized
under the laws of the State of Texas, with its principal office located in
Laredo, Texas.
C. Purchaser desires to acquire from Seller, and Seller desires to
transfer to Purchaser, certain banking premises and certain deposits associated
therewith, located in the State of Texas, all in accordance with and subject to
the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual promises
and obligations set forth herein, the parties agree as follows:
ARTICLE 1
CERTAIN DEFINITIONS
1.1 Certain Definitions. The terms set forth below are used in this
Agreement with the following meanings:
"Accrued Interest" means, as of any date, with respect to a Deposit,
interest which is accrued on such Deposit to but excluding such date and not
yet posted to the relevant deposit account.
"ACH Direct Deposit Cut-Off Date" has the meaning set forth in Section
4.3.
"Adjusted Payment Amount" has the meaning set forth in Section 3.3
"Adjustment Date" has the meaning set forth in Section 3.3.
"Affiliate" means, with respect to any person, any other person directly
or indirectly controlling, controlled by or under common control with such
person.
"Agreement" means this Purchase and Assumption Agreement, including all
schedules, exhibits and addenda, each as amended from time to time in
accordance with the terms hereof.
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"Allocation Statement" has the meaning set forth in Section 3.4(a).
"Asbestos Hazard" means the presence of asbestos in a parcel of Owned
Real Property or the improvements thereon as of the date hereof which, under
applicable laws, must be immediately remediated in order to allow continuation
of the current operation of the Branch within such Owned Real Property using
the current improvements thereon and the cost of such remediation, as
reasonably determined by the Environmental Consultant, shall be more than One
Hundred Thousand Dollars ($ 100,000).
"Assets" has the meaning set forth in Section 2. 1 (a).
"Assignment and Assumption Agreement" has the meaning set forth in
Section 3.6(c).
"Assumed Severance Obligations" means those duties, responsibilities,
obligations and liabilities of Seller or of its Affiliates under the severance
and similar plans described in Schedule 1.1(a) to pay severance and provide
benefits to any Branch Employee or Transferred Employee.
"Branch Employees" means, the employees of the Seller working at the
Branches on 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 are eligible to return to work under
Seller's policies), subject to any transfers permitted pursuant to Section 7.1
and replacement in the ordinary course of business of employees who may leave
Seller's employ between the date hereof and the Closing Date.
"Branch Leases" means the leases under which Seller leases land and/or
buildings used as Branches, including, without limitation, ground leases.
"Branches" means each of the branch banking offices of Seller at the
locations identified on Schedule 1.1(b) hereto.
"Burdensome Condition" has the meaning set forth in Section 9.1 (a).
"Business Day" means a day on which banks are generally open for
business and which is not a Saturday or Sunday.
"Cash on Hand" means, as of any date, all xxxxx cash, vault cash, teller
cash, ATM cash, prepaid postage and cash equivalents held at a Branch.
"Closing" and "Closing Date" refer to the closing of the P&A
Transaction, which is to be held at such time and date as provided in Article 3
hereof.
"Code" means the Internal Revenue Code of 1986, as amended.
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"Deeds" has the meaning set forth in Section 3.6(a).
"Deposit(s)" means deposit liabilities with respect to deposit accounts
booked by Seller at the Branches, as of the close of business of the day prior
to the Closing Date, which constitute "deposits" for purposes of the Federal
Deposit Insurance Act. 12 U.S.C. Section 1813, including collected and
uncollected deposits and Accrued Interest, BUT EXCLUDING: (a) all Excluded
Deposits; (b) deposit liabilities with respect to accounts registered in the
name of a trust for which Seller serves as trustee (other than non-excluded XXX
and SEP accounts); (c) deposit liabilities with respect to accounts booked by
Seller at any Branch for which Seller serves as guardian or custodian (other
than non-excluded XXX and SEP accounts); (d) all Xxxxx Accounts; (e) any XXX
and SEP accounts which hold investments in non-deposit instruments; (f) any
deposit account associated with any merchant card banking relationship; (g) any
deposit account which serves as security for a loan or which serves as security
for any credit card or overdraft protection; (h) any remittance account; and
(i) any deposit account which has an automatic sweep to a third party.
"Draft Closing Statement" means a draft closing statement, prepared by
Seller, as of the close of business of the third (3rd) business day preceding
the Closing Date setting forth an estimated calculation of both the Purchase
Price and the Estimated Payment Amount.
"Encumbrances" means all mortgages, claims, charges, liens,
encumbrances, easements, limitations, restrictions, commitments and security
interests, except for statutory liens securing tax and/or other payments not
yet due, liens incurred in the ordinary course of business, including, without
limitation, liens in favor of mechanics or materialmen, and such other liens,
charges, security interests or encumbrances as do not materially detract from
the value or materially and adversely affect the use of the properties or
assets subject thereto or affected thereby or which otherwise do not materially
impair the value of or business operations at such properties and except for
obligations pursuant to escheat and unclaimed property laws relating to the
Escheat Deposits.
"Environmental Consultant" has the meaning specified in Section 10.1(b).
"Environmental Hazard" means 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, unless, with respect to any single parcel of Owned Real Property,
the cost of remediation, as reasonably determined by the Environmental
Consultant, shall be more than One Hundred Thousand Dollars ($100,000). Any
such determination shall be based upon a "risk-based approach" of what would be
necessary to obtain the equivalent of a "no further action letter" from the
applicable
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regulatory agency or agencies with no deed restrictions which would adversely
affect the commercial use of the parcel of Owned Real Property.
"Environmental Law" means 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. Sections 9601
et seq.); the Resource Conservation and Recovery Act (42 U.S.C. Sections 96901
et seq.); the Federal Water Pollution Control Act (33 U.S.C. Sections 1251 et
seq.); the Occupational Safety and Health Act (29 U.S.C. Section 651 et seq.);
provided, however, that the definition of "Environmental Law" shall not include
any Federal or state law, statute, rule, regulation, code, order, judgment,
decree, injunction or agreement with any governmental authority relating to
asbestos or asbestos-containing materials.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Escheat Deposits" means, as of any date, Deposits and safe deposit box
contents, in each case held on such date at the Branches which become subject
to escheat, in the calendar year in which the Closing occurs, pursuant to
applicable escheat and unclaimed property laws.
"Estimated Payment Amount" has the meaning set forth in Section 3.2(a).
"Estimated Purchase Price" means the Purchase Price as set forth on the
Draft Closing Statement.
"Excluded XXX/Xxxxx Account Deposits" has the meaning set forth in
Section 2.4(c).
"Excluded Deposits" means: (i) all wholesale commercial deposits (i.e.,
with account analysis or cash management services); and (ii) certain business
related deposit liabilities excluded by Seller.
"FDIA" means the Federal Deposit Insurance Act, as amended.
"FDIC," means the Federal Deposit Insurance Corporation.
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"Federal Funds Rate" on any day means the per annum rate of interest
(rounded upward to the nearest 1/100 of 1%) which is the weighted average of
the rates on overnight federal funds transactions arranged on such day or, if
such day is not a Business Day, the previous Business Day, by federal funds
brokers computed and released by the Federal Reserve Bank of New York (or any
successor) in substantially the same manner as such Federal Reserve Bank
currently computes and releases the weighted average it refers to as the
"Federal Funds Effective Rate" at the date of this Agreement.
"Federal Reserve Board" means the Board of Governors of the Federal
Reserve System.
"FedWire Direct Deposit Cut-off Date" has the meaning set forth in
Section 4.3.
"Final Closing Statement" means a final closing statement, prepared by
Seller, as of the ninetieth (90th) day following the Closing Date setting forth
both the Purchase Price and the Adjusted Payment Amount.
"Hazardous Substance" means 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.
"XXX" means an "individual retirement account" or similar account
created by a trust for the exclusive benefit of an individual or his
beneficiaries in accordance with the provisions of Section 408 of the Code.
"IRS" means the Internal Revenue Service.
"Xxxxx Account" means an account created by a trust for the benefit of
employees (some or all of whom are owner-employees) and that complies with the
provisions of Section 401 of the Code. No Xxxxx Accounts are being sold.
"Landlord Consents" has the meaning set forth in Section 3.6(e).
"Lease Agreement" means a lease entered into pursuant to Section 10.1(c)
upon such specific terms and conditions as contemplated by such Section and
such other commercially reasonable terms and conditions as are customary in a
"triple net" lease of a bank branch facility.
"Lease Assignment" has the meaning set forth in Section 3.6(d).
"Liabilities" has the meaning set forth in Section 2.2.
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"Loss" means the amount of losses, liabilities, damages (including
forgiveness or cancellation of obligations) and expenses (including reasonable
expenses of investigation and reasonable attorneys' fees and expenses in
connection with any action, suit or proceeding) incurred or suffered by the
indemnified party or its Affiliates in connection with the matters described in
Section 12.1, less the amount of the economic benefit (if any) to the
indemnified party or its Affiliates occurring or reasonably anticipated to
occur in connection with any such damage, loss, liability or expense (including
Tax benefits obtainable under applicable law, amounts recovered under insurance
policies net of deductibles, recovery by setoffs or counterclaims, and other
economic benefits).
"Material Adverse Effect" means (a) with respect to Seller, a material
adverse effect on the business or direct economic results of operations of the
Branches, taken as a whole, or on the ability of Seller timely to consummate
the P&A Transaction as contemplated by this Agreement, and (b) with respect to
Purchaser, a material adverse effect on the ability of Purchaser to perform any
of its financial or other obligations under this Agreement, including the
ability of Purchaser timely to consummate the P&A Transaction contemplated by
this Agreement. In determining whether there has occurred a Material Adverse
Effect there shall be excluded the effect of any change in Federal or state
banking laws or regulations, any change in GAAP or regulatory accounting
principles, any adverse change in general economic conditions, including,
without limitation, the interest rate environment, or in the depository
institution industry generally.
"OCC" means the Office of the Comptroller of the Currency.
"Order" has the meaning set forth in Section 9.1 (b).
"Owned Real Property" means Real Property where Seller owns both the
real property and improvements thereon that are used for Branches.
"P&A Transaction" means the purchase and sale of Assets and the
assumption of Liabilities described in Sections 2.1 and 2.2.
"Personal Property" means the personal property of Seller, located in
the Branches, which is defined on the personal property and fixed assets list
previously provided to Purchaser; PROVIDED, HOWEVER, NONE OF THE FOLLOWING ARE
BEING SOLD: (1) teller terminals, Teller Vision and related equipment; (2)
phone equipment and related equipment; and (3) personal property or equipment
subject to Personal Property Lease, each of which such Personal Property Lease
shall be terminated as of the Closing. In addition, all ATM's at the Branches
may be replaced, at the option of Seller, with IBM (Model Number 3624-12) or
similar machine prior to Closing. Such replacement ATM's ("Replacement ATM's")
will be sold at a fixed price per ATM unit of $10,000.00. If, prior to the
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Closing Date, an item of Personal Property is stolen, destroyed or otherwise
lost, such item shall be excluded from the P&A Transaction, and the term
"Personal Property" as used herein shall exclude such item. If, prior to the
Closing Date, an item of Personal Property is damaged by fire or other
casualty, such item, if reasonably repairable, shall be sold to Purchaser (in
accordance with the provisions hereof) and the insurance proceeds relating to
such item shall be assigned to Purchaser, it being understood that if such item
is not reasonably repairable or is underinsured or uninsured, it shall be
excluded from the P&A Transaction. Personal Property, for purposes of what is
being sold hereunder, does not include any personal property of Seller located
in the Real Property which is not in the branch banking office and is not
necessary to the operation of the branch banking office (e.g., personal
property associated with non-branch banking offices of Seller which may be
located in the Real Property).
"Personal Property Leases" means the leases under which Seller leases
certain Personal Property in the Branch. Seller shall cancel all such Personal
Property Leases as of the Closing.
"Purchase Price" has the meaning set forth in Section 2.3.
"Real Property" means the parcels of real property on which the Branches
listed on Schedule 1.1(b) are located, including any improvements and tenant
improvements and trade fixtures thereon, which Schedule indicates whether or
not such real property is Owned Real Property.
"Records" means all paper records and original documents, or where
reasonable and appropriate copies thereof, in Seller's possession that pertain
to and are utilized by Seller to administer, reflect, monitor, evidence or
record information respecting the business or conduct of the Branches
(including transaction tickets through the Closing Date and all records for
closed accounts located in Branches and excluding any other transaction tickets
and records for closed accounts) and all such records and original documents,
or where reasonable and appropriate copies thereof, regarding the Assets, or
the Deposits, or to comply with applicable laws and governmental regulations to
which the Deposits are subject, including, but not limited to, unclaimed
property and escheat laws. Notwithstanding the above, Seller may provide copies
of all Records. Seller is not required to deliver any data processing or
electronic/image type records commingled with other records of Seller unrelated
to the Branches, and Seller is not required to deliver any account history
which is prior to forty-five (45) days prior to Closing. In addition, Seller is
not required to deliver any risk-management information regarding customers,
including, without limitation, credit-scoring formulas, daylight over draft
limits, stop payment or overdraft history more than forty-five (45) days prior
to Closing.
"Regulatory Approvals" means all approvals, authorizations, waivers or
consents of or notices to any governmental agencies or
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authorities required for or in connection with consummation of the P&A
Transaction.
"Safe Deposit Agreements" means the agreements relating to safe deposit
boxes located in the Branches.
"Seller's Knowledge" or other similar phrases means information that is
actually known to any officer of Seller who holds the title of Senior Vice
President or above and has responsibility with respect to management of
operations conducted at the Branches.
"Tax Returns" means any return or other report required to be filed with
respect to any Tax, including declaration of estimated tax and information
returns.
"Taxes" means any federal, state, local, or foreign taxes, including,
but not limited to, taxes on or measured by income, estimated income,
franchise, capital stock, employee's withholding, non-resident alien
withholding, backup withholding, social security, occupation, unemployment,
disability, value added taxes, taxes on services, real property, personal
property, sales, use, excise, transfer, gross receipts, inventory and
merchandise, business privilege, and other taxes or governmental fees or
charges or amounts required to be withheld and paid over to any government in
respect of any tax or governmental fee or charge, including any interest,
penalties, or additions to tax on the foregoing whether or not disputed.
"Tenant Leases" means leases or subleases between Seller and tenants, if
any, listed on Schedule 5.4.
"Title Company" has the meaning set forth in Section 3.10(a).
"Title Policy" has the meaning set forth in Section 3.10(b).
"Title Reports" has the meaning set forth in Section 3.10(a).
"Transaction Account" means any account at a Branch in respect of which
deposits therein are withdrawable in practice upon demand or upon which third
party drafts may be drawn by the depositor, including checking account,
negotiable order of withdrawal accounts and money market deposit accounts.
"Transferred Employees" means Branch Employees employed by Purchaser on
and after the Closing Date.
1.2 Accounting Terms. All accounting terms not otherwise defined
herein shall have the respective meanings assigned to them in accordance with
consistently applied generally accepted accounting principles as in effect from
time to time in the United States of America ("GAAP").
1.3 Interpretation. The captions or headings in this
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Agreement are for convenience of reference only and in no way define, limit or
describe the scope or intent of any provisions or Sections of this Agreement.
All references in this Agreement to particular Articles or Sections are
references to the Articles or Sections of this Agreement, unless some other
reference is clearly indicated. In this Agreement, unless the context otherwise
requires, (i) words describing the singular number shall include the plural and
vice versa, (ii) words denoting any gender shall include all genders, and (iii)
the word "including" shall mean "including without limitation." The rule of
construction against the draftsman shall not be applied in interpreting and
construing this Agreement.
ARTICLE 2
THE P&A TRANSACTION
2.1 Purchase and Sale of Assets. (a) Subject to the terms and
conditions set forth in this Agreement, at the Closing, Seller shall grant,
sell, convey, assign, transfer and deliver to Purchaser, and Purchaser shall
purchase and accept from Seller, all of Seller's right, title and interest, as
of the Closing Date, in and to the following (collectively, the "Assets"):
(i) Cash on Hand;
(ii) the Owned Real Property;
(iii) the Personal Property;
(iv) the Branch Leases and Tenant Leases;
(v) the Safe Deposit Agreements; and
(vi) the Records
(b) Purchaser understands and agrees that it is purchasing only the
Assets (and assuming only the Liabilities) specified in this Agreement and,
except as may be expressly provided for in this Agreement, Purchaser has no
interest in or right to any other business relationship which Seller may have
with any customer of the Branches, including, without limitation: (i) any
deposit account or other service of Seller at any other office of Seller which
may be linked to the Deposits; (ii) any deposit account which sweeps from the
Branch to a third party; (iii) any merchant card banking business or any
deposit account associated with any merchant card banking relationship; and/or
(iv) any cash management service (e.g., sweep accounts, cash concentrator
accounts, controlled disbursement accounts) which Seller may provide to any
customer of the Branches. No credit card relationships are being sold. No loans
are being sold. No right to the use of any sign, trade name, trademark or
service xxxx, if any, of Seller, Xxxxx Fargo & Company (parent of Seller) or
any of their respective Affiliates is being sold.
2.2 Assumption of Liabilities. (a) Subject to the terms and
conditions set forth in this Agreement, at the Closing, Purchaser shall assume,
pay, perform and discharge all duties, responsibilities, obligations or
liabilities of Seller (whether accrued, contingent or otherwise) to be
discharged, performed,
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satisfied or paid on or after the Closing Date, with respect to the following
(collectively, the "Liabilities"):
(i) the Deposits, including the XXX and SEP accounts (except
those XXX and SEP accounts which are excluded under the definition of Deposits)
to the extent contemplated by Section 2.4;
(ii) the Branch Leases, and Tenant Leases;
(iii) the Safe Deposit Agreements; and
(iv) the Assumed Severance Obligations.
(b) Notwithstanding anything to the contrary in this Agreement,
Purchaser shall not assume or be bound by any duties, responsibilities,
obligations or liabilities of Seller, or of any of Seller's Affiliates, of any
kind or nature, known, unknown, contingent or otherwise, other than the
Liabilities.
2.3 Purchase Price. The purchase price ("Purchase Price") for the
Assets shall be the sum of:
(a) An amount equal to 7.77% of the average daily balance (including
Accrued Interest) of the Deposits for the period commencing thirty (30) days
prior to and inclusive of the day prior to the Closing Date and ending on the
day prior to the Closing Date;
(b) The aggregate amount of Cash on Hand as of the Closing Date;
(c) The aggregate net book value of all the Assets, other than Cash
on Hand, as reflected on the books of Seller as of the close of business of the
month-end day most recently preceding the Closing Date;
(d) The sum of $ 10,000.00 for each Replacement ATM; and
(e) If, through no material fault of the Seller, the Closing has not
occurred by September 18, 1997, the sum of $75,000.00 per Branch.
Purchaser has, concurrently with Seller's execution of this Agreement, made a
good faith deposit to Seller, as consideration for entering into this
Agreement, in the amount of Seventy-Five Thousand Dollars ($75,000) per branch
for each Branch which is the subject of this Agreement. Such good faith deposit
shall be applied against the Purchase Price upon Closing unless, through no
material fault of the Seller, the Closing does not occur on or before July 18,
1997, in which case, Seller shall retain such deposit. Such good faith deposit
shall be returned to Purchaser if this Agreement is terminated for a reason
other than the default of Purchaser. Such good faith deposit is consideration
for entering into this Agreement, is not intended as liquidated damages and
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shall not in any way limit Seller's remedies for a default by Purchaser
hereunder. No interest shall be paid on such good-faith deposit.
2.4 Assumption of XXX Account Deposits. (a) With respect to Deposits
in IRAs and SEPs (except those XXX and SEP accounts which are excluded under
the definition of Deposits), Seller will use reasonable efforts and will
cooperate with Purchaser in taking any action reasonably necessary to
accomplish either the appointment of Purchaser as successor custodian or the
delegation to Purchaser (or an' Affiliate of Purchaser) of Seller's authority
and responsibility as custodian of all such XXX deposits except self-directed
XXX deposits, including, but not limited to, sending to the depositors thereof
appropriate notices, cooperating with Purchaser (or such Affiliate) in
soliciting consents from such depositors, and filing any appropriate
applications with applicable regulatory authorities. If any such delegation is
made to Purchaser (or such Affiliates), Purchaser (or such Affiliate) will
perform all of the duties so delegated and comply with the terms of Seller's
agreement with the depositor of the XXX deposits affected thereby.
(b) If, notwithstanding the foregoing, as of the Closing Date,
Purchaser shall be unable to retain deposit liabilities in respect of an XXX
Account, such deposit liabilities shall be excluded from Deposits for purposes
of this Agreement and shall constitute "Excluded XXX Account Deposits." No
Xxxxx Accounts are being sold.
ARTICLE 3
CLOSING PROCEDURE; ADJUSTMENTS
3.1 Closing. (a) The Closing will be held at the offices of Seller at 000
Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx, or such place as may be agreed to by the
parties.
(b) The Closing Date shall be July 18, 1997, or, if the Closing
cannot occur on such date, on a date and time as soon thereafter as
practicable, which shall be no later than thirty (30) Business Days after
receipt of all Regulatory Approvals.
3.2 Payment at Closing. (a) At Closing, Seller shall pay to Purchaser the
amount by which the aggregate balance (including Accrued Interest) of the
Deposits exceeds the Estimated Purchase Price (the "Estimated Payment Amount")
or, Purchaser shall pay to Seller the amount by which the Estimated Purchase
Price exceeds the aggregate balance (including Accrued Interest) of the
Deposits, each as set forth on the Draft Closing Statement as agreed upon
between Seller and Purchaser.
(b) All payments to be made hereunder by one party to the other shall
be made by wire transfer of immediately available funds (in all cases to an
account specified in writing by Seller or Purchaser, as the case may be, to the
other not later than the
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third (3rd) Business Day prior to the Closing Date) on or before 11:00 A.M.
local time on the date of payment. If any payment to be made hereunder on the
Closing Date (or any other date) shall not be made on or before 11:00 A.M.
local time on such date, and the amount thereof shall have been agreed to in
writing by the parties at the Closing Date (or such other payment date), the
party responsible therefor may make such payment on or before 11:00 A.M. local
time on the next Business Day together with interest thereon at the Federal
Funds Rate applicable from the Closing Date (or such other payment date) to the
date such payment is actually made, which in no event shall be later than the
fifth (5th) business day after such payment was due.
(c) If any instrument of transfer contemplated herein shall be
recorded in any public record before the Closing and thereafter the Closing is
not completed, then at the request of such transferring party the other party
will deliver (or execute and deliver) such instruments and take such other
action as such transferring party shall reasonably request to revoke such
purported transfer.
3.3 Adjustment of Purchase Price. (a) On or before 12:00 noon on the
sixtieth (60th) day following the Closing Date (the "Adjustment Date"), Seller
shall deliver to Purchaser the Final Closing Statement and shall make available
such work papers, schedules and other supporting data as may be reasonably
requested by Purchaser to enable it to verify the amounts set forth in the
Final Closing Statement. The Final Closing Statement shall also set forth the
amount (the "Adjusted Payment Amount") by which the aggregate amount of
Deposits (including Accrued Interest) shown on the Final Closing Statement
differs from the Estimated Purchase Price.
(b) The determination of the Adjusted Payment Amount shall be final
and binding on the parties hereto unless within thirty (30) days after receipt
by Purchaser of the Final Closing Statement, Purchaser shall notify the Seller
in writing of its disagreement with any amount included therein or omitted
therefrom, in which case, if the parties are unable to resolve the disputed
items within ten (10) Business Days of the receipt by Seller of notice of such
disagreement, such items shall be determined by an independent accounting firm
selected by mutual agreement between Seller and Purchaser; provided, however,
that in the event the fees of such firm as estimated by such firm would exceed
fifty percent (50%) of the net amount in dispute, the parties agree that such
firm will not be engaged by either party and that such net amount in dispute
will be equally apportioned between Seller and Purchaser. Such accounting firm
shall be instructed to resolve the disputed items within ten (10) Business Days
of engagement, to the extent reasonably practicable. The determination of such
accounting firm shall be final and binding on the parties hereto. The fees of
any such accounting firm shall be divided equally between Seller and Purchaser.
(c) On or before 12:00 Noon on the tenth (10th) Business Day
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after the Adjustment Date or, in the case of a dispute, the date of the
resolution of the dispute pursuant to subsection 3.3(b) above, Seller shall pay
to Purchaser an amount equal to the amount by which the Adjusted Payment Amount
exceeds the Estimated Payment Amount, plus interest on such excess amount from
the Closing Date to but excluding the payment date, at the Federal Funds Rate
or, if the Estimated Payment Amount exceeds the Adjusted Payment Amount,
Purchaser shall pay to Seller an amount equal to such excess, plus interest
from the Closing Date to but excluding the payment date, at the Federal Funds
Rate. Any payments required by Section 3.5 shall be made contemporaneously with
the foregoing payment.
3.4 Allocation of Purchase Price. (a) Purchaser and Seller agree that upon
final determination of the Purchase Price, the Purchase Price shall be
allocated in a manner as determined by Purchaser subject to Seller's consent
(which consent shall not be unreasonably withheld or delayed), after taking
into account any applicable Treasury Regulations and the fair market value of
such items and to be set forth in a statement, dated the Adjustment Date (the
"Allocation Statement") prepared by Purchaser.
(b) Purchaser and Seller shall report the transaction contemplated by
this Agreement (including income tax reporting requirements imposed pursuant to
Section 1060 of the Code) in accordance with the allocation specified in the
Allocation Statement. In the event any party hereto receives notice of an audit
in respect of the allocation of the Purchase Price specified herein, such party
shall immediately notify the other party in writing as to the date and subject
of such audit.
(c) If any Tax Return filed by Purchaser or Seller relating to the
transactions contemplated hereby is challenged by the taxing authority with
which such Tax Return was filed on the basis of the allocation set forth in the
Allocation Statement, as finally adjusted, the filing party shall assert and
maintain in good faith the validity and correctness of such allocation during
the audit thereof until the issuance by the taxing authority of a "30 Day
Letter", or a determination of liability equivalent thereto, to such party;
provided, however, that at any time such party shall, in its sole discretion,
have the right to pay, compromise, settle, dispute or otherwise deal with its
alleged tax liability. If such a Tax Return is challenged as herein described,
the party filing such Tax Return shall keep the other party apprised of its
decisions and the current status and progress of all administrative and
judicial proceedings, if any, that are undertaken at the election of such
party.
3.5 Proration; Other Closing Date Adjustments. (a) Except as otherwise
specifically provided in this Agreement, it is the intention of the parties
that Seller will operate the Branches for its own account until 11:59 P.M.,
California time, the day prior to the Closing Date, and that Purchaser shall
operate the Branches, hold the Assets and assume the Liabilities for its own
account on and after the Closing Date. Thus, except as otherwise specifically
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provided in this Agreement, items of income and expense, as defined herein,
shall be prorated as of 11:59 P.M., California time, the day prior to the
Closing Date, and settled between Seller and Purchaser on the Closing Date,
whether or not such adjustment would normally be made as of such time. Items of
proration will be handled at Closing as an adjustment to the Purchase Price
unless otherwise agreed by the parties hereto.
(b) For purposes of this Agreement, items of proration and other
adjustments shall include, without limitation: (i) rental payments and security
deposits under the Branch Leases and the Tenant Leases; (ii) sales and use
taxes and personal and real property taxes and assessments; (iii) FDIC deposit
insurance assessments; (iv) wages, salaries and employee benefits and expenses;
(v) trustee or custodian fees on XXX Accounts; (vi) adjustments reflecting
exclusions from the Personal Property as provided for in the definition
thereof; and (vii) other prepaid expenses and items and accrued but unpaid
liabilities, as of the close of business on the day prior to the Closing Date.
Safe deposit rental payments previously received by Seller shall not be
prorated.
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3.6 Seller Deliveries. At the Closing, Seller shall deliver to
Purchaser:
(a) Deeds in substantially the form of Schedule 3.6(a) (except as
otherwise required by local state law), pursuant to which the Owned Real
Property shall be transferred to Purchaser "AS IS", "WHERE IS" and with all
faults (the "Grant Deeds");
(b) A xxxx of sale in substantially the form of Schedule 3.6(b)
(except as otherwise required by local state law), pursuant to which the
Personal Property shall be transferred to Purchaser "AS IS", "WHERE IS" and
with all faults;
(c) An assignment and assumption agreement in substantially the form
of Schedule 3.6(c) (except as otherwise required by local state law), with
respect to the Liabilities (the "Assignment and Assumption Agreement");
(d) Lease assignment and assumption agreements in substantially the
form of Schedule 3.6(d) (except as otherwise required by local state law) with
respect to each of the Branch Leases (the "Lease Assignments");
(e) Subject to the provisions of Section 7.4, such consents of
landlords under the Branch Leases, as shall be required pursuant to the terms
of such Branch Leases, to the assignment of the Branch Leases to Purchaser in
substantially the form of Schedule 3.6(e) (except as otherwise required by
local state law), (the "Landlord Consents");
(f) Subject to the provisions of Section 7.4, such consents as shall
be required pursuant to the terms of the Tenant Leases and the Personal
Property Leases in connection with the assignments thereof to Purchaser;
(g) An Officer's Certificate in substantially the form of Schedule
3.6(g);
(h) An opinion of Seller's in-house counsel, dated the Closing Date,
in form and substance reasonably satisfactory to Purchaser substantially to the
effect that:
(i) Seller is a national banking association, duly organized
and validly existing under the laws of the United States, with all requisite
corporate power and authority to execute, deliver and perform this Agreement;
(ii) all Regulatory Approvals required to have been obtained by
Seller or its Affiliates have been obtained and are in full force and effect;
and
(iii) this Agreement has been duly authorized, executed and
delivered by Seller and (assuming due authorization, execution and delivery by
Purchaser) is a valid and legally binding
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obligation of Seller enforceable in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfers, reorganization, moratorium and
similar laws ,of general applicability relating to or affecting creditors'
rights and to general equity principles;
(i) The Draft Closing Statement;
(j) Seller's resignation as trustee or custodian, as applicable, with
respect to each XXX Account included in the Deposits and designation of
Purchaser as successor trustee or custodian with respect thereto as
contemplated by Section 2.4;
(k) All documentation required to exempt Seller from the withholding
requirement of Section 1445 of the Code, consisting of an affidavit from Seller
to Purchaser under penalty of perjury that Seller is not a foreign person and
providing Seller's U.S. taxpayer identification number; and
(l) Such other documents as the parties determine are reasonably
necessary to consummate the P&A Transaction as contemplated hereby.
3.7 Purchaser Deliveries. At the Closing, Purchaser shall deliver to
Seller:
(a) The Assignment and Assumption Agreement;
(b) Purchaser's acceptance of its appointment as successor trustee or
custodian, as applicable, of the XXX Accounts included in the Deposits and
assumption of the fiduciary obligations of the trustee or custodian with
respect thereto, as contemplated by Section 2.4;
(c) The Lease Assignments and, as contemplated by Section 7.4, such
other instruments and documents as any landlord under a Branch Lease may
reasonably require as necessary or desirable for providing for the assumption
by Purchaser of a Branch Lease, each such instrument and document in the form
and substance reasonably satisfactory to the parties and dated as of the
Closing Date;
(d) An Officer's Certificate in the form of Schedule 3.7(d) attached
hereto;
(e) An opinion of Purchaser's in-house or outside counsel, dated the
Closing Date, in form and substance reasonably satisfactory to Seller,
substantially to the effect that:
(i) Purchaser is a Multi-bank Holding Company, duly organized
and validly existing, under the laws of the State of Texas, with all requisite
corporate power and authority to execute, deliver and perform this Agreement;
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(ii) all Regulatory Approvals required to have been obtained by
Purchaser or its Affiliates have been obtained and are in full force and
effect; and
(iii) this Agreement has been duly authorized, executed and
delivered by Purchaser and (assuming due authorization, execution and delivery
by Seller) is a valid and legally binding obligation of Purchaser enforceable
in accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity principles;
and
(f) Such other documents as the parties determine are reasonably
necessary to consummate the P&A Transaction as contemplated hereby.
3.8 [intentionally left blank]
3.9 Owned Real Property Filings. On or prior to the Closing Date,
Seller shall file or cause to be filed or recorded, any and all documents
(including, without limitation, deeds) necessary in order that the legal and
equitable title to Owned Real Property shall be duly vested in Purchaser as of
the Closing Date. Any expenses or documentary transfer taxes with respect to
such filings and all escrow closing costs shall be borne by Purchaser.
3.10 Title Policies. (a) Purchaser has previously been provided by
Seller, at its own expense, a preliminary title report (the "Title Reports")
for all the Owned Real Property issued by Chicago Title Company (the "Title
Company"), Purchaser has had an opportunity to review such Title Reports and
Purchaser hereby approves the condition of title with respect to all the Owned
Real Property being purchased hereunder.
(b) Purchaser shall, at its own expense, obtain as of the Closing
Date an ALTA (standard coverage) title insurance policy (i.e., the equivalent
of a CLTA owner's title policy) from the Title Company (a "Title Policy") with
respect to all the Owned Real Property. Seller will cooperate with Purchaser in
assisting Purchaser to obtain (at Purchaser's expense) such Title Policies,
including without limitation only such endorsements as may be reasonably
necessary to insure that such Owned Real Property is free and clear of any
Encumbrance not shown on the Title Reports which would materially and adversely
affect the value or marketability of title thereto.
ARTICLE 4
TRANSITIONAL MATTERS
4.1 Transitional Arrangements. Seller and Purchaser agree to
cooperate and to proceed as follows to effect the transfer of account record
responsibility for the Branches:
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(a) Not later than thirty (3 )0) days after the signing of this
Agreement, Seller will meet with Purchaser to investigate, confirm and agree
upon mutually acceptable transaction settlement procedures and specifications,
files, procedures and schedules, for the transfer of account record
responsibility; provided, however, it being understood and agreed that Seller
is not obligated under this Agreement to provide Purchaser any system
conversion files regarding the Deposits other than a standard format IBM
compatible standard label tape conversion tape (i.e., not one which is
specifically formatted for Purchaser's systems specifications); and provided,
further, that Seller is not obligated to provide Purchaser with any information
regarding Seller's relationship with the customers outside of the Branch (e.g.,
other customer products, householding information).
(b) [intentionally left blank]
4.2 Customers. (a) Not later than thirty (30) days prior to the
Closing Date (unless earlier required by law),
(i) Seller will notify the holders of Deposits to be
transferred on the Closing Date that, subject to the terms and conditions of
this Agreement, Purchaser will be assuming liability for such Deposits;
(ii) each of Seller and Purchaser shall provide, or join in
providing where appropriate, all notices to customers of the Branches and other
persons that Seller or Purchaser, as the case may be, is required to give under
applicable law or the terms of any other agreement between Seller and any
customer in connection with the transactions contemplated hereby; and
(iii) following or concurrently with the notice referred to in
clause (i) above, Purchaser may communicate with and deliver information,
brochures, bulletins and other communications to depositors and other customers
of the Branches concerning the P&A Transaction and the business of Purchaser. A
party proposing to send or publish any notice or communication pursuant to any
paragraph of this Section 4.2 shall furnish to the other party a copy of the
proposed form of such notice or communication at least five (5) days in advance
of the proposed date of the first mailing, posting, or other dissemination
thereof to customers, and shall not unreasonably refuse to amend such notice to
incorporate any changes that the other such party proposes as necessary to
comply with applicable law. All costs and expenses of any notice or
communication sent or published by Purchaser or Seller shall be the
responsibility of the party sending such notice or communication and all costs
and expenses of any joint notice or communication shall be shared equally by
Seller and Purchaser. As soon as reasonably practicable and in any event within
forty-five (45) days of the date hereof, Seller shall provide to Purchaser a
report of the names and addresses of the owners of the Deposits and the lessees
of the safe deposit boxes in connection with the mailing of such materials,
which report shall be current as of the date hereof.
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(b) Following the giving of any notice described in paragraph (a)
above, Purchaser and Seller shall deliver to each new customer at any of the
Branches such notice or notices as may be reasonably necessary to notify such
new customers of Purchaser's pending assumption of liability for the Deposits
and to comply with applicable law. The cost of such notices shall be paid by
Purchaser. As soon as practicable after the execution of this Agreement, Seller
will provide Purchaser with account information, including complete mailing
addresses for each of the depositors of the Deposits as of a recent date, and
upon reasonable request shall provide an updated version of such records;
provided, however, that Seller shall not be obligated to provide such updated
records more than twice.
(c) Notwithstanding the provisions of Section 7.6, neither Purchaser
nor Seller shall object to the use, by depositors of the Deposits, of payment
orders issued to or ordered by such depositors on or prior to the Closing Date,
which payment orders bear the name, or any logo, trademark, service xxxx, trade
name or the proprietary xxxx of Xxxxx Fargo Bank or any of its Affiliates.
4.3 Direct Deposits. Seller will use all reasonable efforts to
transfer to Purchaser on the Closing Date all of those automated clearing house
and FedWire direct deposit arrangements related (by agreement or other standing
arrangement) to Deposits. On each Business Day for a period of four (4) months
following the Closing, in the case of automated clearing house direct deposits
to accounts containing Deposits (the final Business Day of such period being
the "ACH Direct Deposit Cut-Off Date"), Seller shall transfer to Purchaser all
received ACH Direct Deposits three times each Business Day at: 6:30 a.m., 2:30
p.m. and midnight, Pacific Standard Time. Such transfers shall contain Direct
Deposits effective for that Business Day only. On each Business Day, for a
period of thirty (30) days following the Closing Date (the final Business Day
of such period being the "FedWire Direct Deposit Cut-Off Date"), FedWires
received by Seller shall be returned (as soon as is possible after receipt) to
the originator with an indication of Purchaser's correct Wire Room contact
information and an instruction that such wire should be sent to Purchaser.
Compensation for ACH direct deposits or FedWire direct deposits not forwarded
to Purchaser on the same Business Day as that on which Seller has received such
deposits will be handled in accordance with the rules established by the United
States Council on International Banking. After the applicable Direct Deposit
Cut-Off Date, Seller may discontinue accepting and forwarding automated
clearing house and FedWire entries and funds and return such direct deposits to
the originators marked "Account Closed." Seller shall not be liable for any
overdrafts that may thereby be created. Purchaser and Seller shall agree on a
reasonable period of time prior to the Closing during which Seller will no
longer be obligated to accept new direct deposit arrangements related to the
Branches. At the time of each Direct Deposit Cut-off Date,
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Purchaser will provide automated clearing housing originators with account
numbers relating to Deposits.
4.4 Direct Debit. As soon as practicable after execution of this
Agreement, and after the notice provided in Section 4.2(a), Purchaser will send
appropriate notice to all customers having accounts constituting Deposits the
terms of which provide for direct debit of such accounts by third parties,
instructing such customers concerning transfer of customer direct debit
authorizations from Seller to Purchaser. Seller shall cooperate in soliciting
the transfer of such authorizations. Such notice shall be in a form agreed to
by the parties. For a period of four (4) months following the Closing Date,
Seller shall transfer to Purchaser all received direct debits on accounts
constituting Deposits three times each Business Day: at 6:30 a.m.; 2:30 p.m.;
and midnight, Pacific Standard Time. Such transfers shall contain direct debits
effective for that Business Day only. Thereafter, Seller may discontinue
forwarding such entries and return them to the originators marked "Account
Closed." Purchaser and Seller shall agree on a reasonable period of time prior
to the Closing during which Seller will no longer be obligated to accept new
direct debit arrangements related to the Branches. On the Closing Date,
Purchaser will provide automated clearing house originators of such direct
debits with account numbers.
4.5 Escheat Deposits. After Closing no currently escheated deposits
are being sold. Purchaser shall be solely responsible for the proper reporting
and transmission to the appropriate of such Escheat Deposits.
4.6 Maintenance of Records. Through the Closing Date, Seller will
maintain the Records relating, to the Assets and Liabilities in the same manner
and with the same care that the Record,s have been maintained prior to the
execution of this Agreement. Purchaser may, at its own expense, make such
copies of and excerpts from the Records as it may deem desirable. All Records,
whether held by Purchaser or Seller, shall be maintained for such periods as
are required by law, unless the parties shall, applicable law permitting, agree
in writing to a different period. From and after the Closing Date, each of the
parties shall permit the other reasonable access to any applicable Records in
its possession relating to matters arising on or before the Closing Date and
reasonably necessary in connection with any claim, action, litigation or other
proceeding involving the party requesting access to such Records or in
connection with any legal obligation owed by such party to any present or
former depositor or other customer.
4.7 Interest Reporting and Withholding. (a) Seller will report to
applicable taxing authorities and holders of Deposits, with respect to the
period from January 1 of the year in which the Closing occurs through the
Closing Date, all interest (including for purposes hereof dividends and other
distributions with respect to money market accounts) credited to, withheld from
and any early
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withdrawal penalties imposed upon the Deposits. Purchaser will report to
applicable taxing authorities and holders of Deposits, with respect to all
periods from the day after the Closing Date, all such interest credited to,
withheld from and early withdrawal penalties imposed upon such Deposits. Any
amounts required by any governmental agencies to be withheld from any of the
Deposits through the Closing Date will be withheld by Seller in accordance with
applicable law or appropriate notice from any governmental agency and will
remitted by Seller to the appropriate agency on or prior to the applicable due
date. Any such withholding required to be made subsequent to the Closing Date
shall be withheld by Purchase in accordance with applicable law or the
appropriate notice from any governmental agency and will be remitted by
Purchaser to the appropriate agency on or prior to the applicable due date.
Promptly after the Closing Date, but in no event later than the date Purchaser
is obligated to remit such amounts to the applicable governmental agency,
Seller will pay to Purchaser that portion of any sums theretofore withheld by
Seller from any Deposits which are required to be remitted by Purchaser
pursuant to the foregoing and shall directly remit to the applicable
governmental agency that portion of such sums which are required to be remitted
by Seller.
(b) Seller shall be responsible for delivering to payees all IRS
notices with respect to information reporting and tax identification numbers
required to be delivered through the Closing Date with respect to the Deposits,
and Purchaser shall be responsible for delivering to payees all such notices
required to be delivered following the Closing Date with respect to the
Deposits, Purchaser and Seller shall, prior to the Closing Date, consult and
Seller shall take reasonable actions as are necessary to permit Purchaser
timely to deliver such IRS notices required to be delivered following the
Closing Date.
4.8 Negotiable Instruments. Seller will remove any supply of Seller's
money orders official checks, gift checks, travelers' checks or any other
negotiable instruments located at each of the Branches on the Closing Date.
4.9 ATM/Debit Cards; POS Cards. Seller will provide Purchaser with a
list of ATM access/debit cards and Point-of-Sale ("POS") cards issued by Seller
to depositors of any Deposits, and a record thereof in a format reasonably
agreed to by the par-ties containing all addresses therefor, as soon as
practicable after execution of this Agreement. At or promptly after the
Closing, Seller will provide Purchaser with a revised record through the
Closing. In instances where a depositor of a Deposit made an assertion of error
regarding an account constituting Deposits pursuant to the Electronic Funds
Transfer Act and Federal Reserve Board Regulation E, and Seller, prior to the
Closing, recredited the disputed amount to the relevant account during the
conduct of the error investigation, Purchaser agrees to comply with a written
request from Seller to debit such account in a stated amount and remit such
amount to Seller, to the extent of the balance of funds
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available in the accounts. Seller agrees to indemnify Purchaser for any claims
or losses that Purchaser may incur as a result of complying with such request
from Seller. Seller will not be required to disclose to Purchaser customers'
PINs or algorithms or logic used to generate PINs. Purchaser shall reissue ATM
access/debit cards to depositors of any Deposits prior to the Closing Date,
which cards shall be effective as of the Closing Date. Purchaser and Seller
agree to settle any and all ATM transactions and POS transactions effected on
or before the Closing Date, but processed after the Closing Date, as soon as
practicable. In addition, Purchaser assumes responsibility for and agrees to
pay on presentation all POS transactions initiated before or after the Closing
with Visa Gold Check Cards and MasterMoney Cards issued by Seller to access
Transaction Accounts.
4.10 Leasing of Personal Property. Seller shall cancel or terminate
any Personal Property Leases as of the Closing Date.
4.11 Handling of Certain Items. (a) As soon as practicable after the
Closing Date, Purchaser shall mail to each depositor in respect of a
Transaction Account (i) a letter approved by Seller requesting that such
depositor promptly cease writing Seller's drafts against such Transaction
Account and (ii) new drafts which such depositor may draw upon Purchaser for
the purpose of effecting transactions with respect to such Transaction
Accounts. The parties hereto shall use their best efforts to develop procedures
which cause Seller's drafts against Transaction Accounts which are received
after the Closing Date to be cleared through Purchaser's then-current clearing
procedures. During the ninety (90) day period after the Closing Date, if it is
not possible to clear Transaction Account drafts through Purchaser's then-
current clearing procedures, Seller shall forward to Purchaser as soon as
practicable but in no event more than three (3 )) Business Days after receipt
all Transaction Account drafts drawn against Transaction Accounts. Seller shall
have no obligation to pay such forwarded Transaction Account drafts. Upon the
expiration of such ninety (90) day period, Seller shall cease forwarding drafts
against Transaction Accounts. Seller shall be compensated for its processing of
the drafts during the ninety (90) day period following the Closing Date in
accordance with Schedule 4.11 hereto.
(b) Any items that were credited for deposit to or cashed against a
Deposit prior to the Closing and are returned unpaid on or within sixty (60)
days after the Closing Date ("Returned Items") will be handled as set forth
herein. If Seller's bank account is charged for the Returned Item, Seller shall
forward such Returned Item to Purchaser. If upon Purchaser's receipt of such
Returned Item there are sufficient funds in the Deposit to which such Returned
Item was credited or any other Deposit transferred at the Closing standing in
the name of the party liable for such Returned Item, Purchaser will debit any
or all of such Deposits an amount equal in the aggregate to the Returned Item,
and shall repay that amount to Seller. If there are not sufficient funds in the
Deposit because of Purchaser's failure to honor holds placed on such
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Deposit, Purchaser shall repay the amount of the Returned Item to Seller. Any
items that were credited for deposit to or cashed against an account at the
Branches to be transferred at the Closing prior to the Closing and are returned
unpaid more than sixty (60) days after the Closing will be the responsibility
of Purchaser, except that for a period of eighteen (18) months after the
Closing checks drawn on the United States Treasury, checks issued by state
governments and municipalities and checks returned for endorsement
irregularities will be the responsibility of Seller.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Purchaser as follows:
5.1 Corporate Organization and Authority. As of the date hereof,
Seller is a national banking association, duly organized and validly existing
in good standing under the laws of the United States of America and has the
requisite power and authority to conduct the business now being conducted at
the Branches. Seller has the requisite corporate power and authority and has
taken all corporate action necessary in order to execute and deliver this
Agreement and to consummate the transactions contemplated hereby. This
Agreement is a valid and binding agreement of Seller enforceable in accordance
with its terms subject, as to enforcement, to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general equity
principles.
5.2 No Conflicts. The execution, delivery and performance of this
Agreement by Seller does not, and will not, (i) violate any provision of its
charter or by-laws or (ii) violate or constitute a breach of, or default under,
any law, rule, regulation, judgment, decree, ruling or order of any court,
Government or governmental agency to which Seller is subject or under any
agreement or instrument of Seller, or to which Seller is subject or by which
Seller is otherwise bound, which violation, breach, contravention or default
referred to in this clause (ii), individually or in the aggregate, would have a
Material Adverse Effect (assuming the receipt of any required consents of
lessors under the Branch Leases and Personal Property Leases). Seller has all
material licenses, franchises, permits, certificates of public convenience,
orders and other authorizations of all federal, state and local governments and
Governmental authorities necessary for the lawful conduct of its business at
each of the Branches as now conducted and all such licenses, franchises,
permits, certificates of public convenience, orders and other authorizations,
are valid and in good standing and, to Sellers' knowledge, are not subject to
any suspension, modification or revocation or proceedings related thereto.
5.3 Approvals and Consents. Other than the Regulatory Approvals or as
otherwise disclosed in writing to Purchaser by Seller prior to the date hereof,
no notices, reports or other
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filings are required to be made by Seller with, nor are any consents,
registrations, approvals, permits or authorizations required to be obtained by
Seller from, any governmental or regulatory authorities of the United States or
the several States in connection with the execution and delivery of this
Agreement by Seller and the consummation of the transactions contemplated
hereby by Seller, the failure to make or obtain any or all of which,
individually or in the aggregate, would have a Material Adverse Effect.
5.4 Tenants. Except for the tenants listed on Schedule 5.4 attached
hereto, there are no tenants or other occupants of the Real Property.
5.5 Leases. Each Branch Lease and each Personal Property Lease is the
valid and binding obligation of Seller and, to Seller's knowledge, of each
other party thereto; and there does not exist with respect to Seller's
obligations thereunder, or, to Seller's knowledge, with respect to the
obligations of the lessor thereof, any material default, or event or condition
which constitutes or, after notice or passage of time or both, would constitute
a material default on the part of Seller or the lessor under any such Branch
Lease or Personal Property Lease. As used in the immediately preceding
sentence, the term "lessor" includes any sub-lessor of the property to Seller.
Each Branch Lease and each material Personal Property Lease is current and all
rents, expenses and charges payable by Seller thereunder have been paid or
accrued pursuant to the terms thereof (except for any payments not yet
delinquent or as to which the obligation to make such payment is being
contested in good faith). Accurate copies of each Branch Lease have heretofore
been made available to Purchaser.
5.6 Litigation and Undisclosed Liabilities. Except as set forth in
Schedule 5.6, there are no actions, suits or proceedings that have a reasonable
likelihood of an adverse determination pending or, to Seller's knowledge,
threatened against Seller or any of the Branches, or obligations or liabilities
(whether or not accrued, contingent or otherwise) or to Seller's knowledge,
facts or circumstances that could reasonably be expected to result in any
claims against or obligations or liabilities of Seller that, individually or in
the aggregate, would have a Material Adverse Effect.
5.7 Regulatory Matters. (a) Except as previously disclosed in writing
to Purchaser, there are no pending, or to Seller's knowledge threatened,
disputes or controversies between Seller and any federal, state or local
governmental agency or authority that, individually or in the aggregate, would
have a Material Adverse Effect.
(b) Seller is not a party to any written order, decree, agreement or
memorandum or understanding with, or commitment letter or similar submission
to, any federal or state governmental agency or authority charged with the
supervision or regulation of
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depository institutions, nor has Seller been advised by any such agency or
authority that it is contemplating issuing or requesting (or is considering the
appropriateness of issuing or requesting) any such order, decree, agreement,
memorandum of understanding, commitment letter of submission, in each case
which, individually or in the aggregate, would have a Material Adverse Effect.
5.9 Compliance With Laws. The banking business of the Branches has
been conducted in compliance with all federal, state and local laws,
regulations and ordinances applicable thereto, except for any failures to
comply that would not, individually or in the aggregate, result in a Material
Adverse Effect.
5.10 [intentionally omitted]
5.11 Financial and Deposit Data. To Seller's knowledge, all written
financial and Deposit information regarding the Assets and Liabilities provided
to Purchaser by Seller was accurate in all material respects as of the date
thereof.
5.12 Records. The Records respecting the operations of the Branches
and the Assets and Liabilities accurately reflect in all material respects the
net book value of the Assets and Liabilities being transferred to Purchaser
hereunder. The Records include all information reasonably necessary to service
the Deposits on an ongoing basis.
5.13 Title to Assets. Subject to the terms and conditions of this
Agreement, on the Closing Date Purchaser will acquire, good and marketable
title to all of the material Assets, free and clear of any Encumbrances;
provided, however, that this representation does not cover Owned Real Property
(with respect to which Seller has provided a Title Report and Purchaser is to
obtain its own Title Policy pursuant to Section 3.10, Branch Leases or Tenant
Leases.
5.14 Branch Leases. The Branch Leases give Seller the right to occupy
the building and land comprising the related Branch. Accurate copies of all
Branch Leases and all attachments, amendments and addenda thereto have
heretofore been made available to Purchaser. To Seller's knowledge, the Branch
Leases constitute valid and legally binding leasehold interests of Seller.
Except as described on Schedule 5.4, there are no leases, subleases,
occupancies, tenancies or rights of first refusal relating to any Branch
created or suffered to exist by Seller or, to Seller's knowledge, created or
suffered to exist by any other person.
5.15 Deposits. All of the Deposit accounts have been administered and,
to Seller's knowledge, originated, in compliance with the documents governing
the relevant type of Deposit account and all applicable laws. The Deposit
accounts are insured by the Bank Insurance Fund of the FDIC up to the current
applicable maximum limits, and no action is pending or, to Seller's knowledge,
threatened by the FDIC with respect to the termination of such insurance.
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5.16 Environmental Laws; Hazardous Substances. To Seller's knowledge,
except as disclosed on Schedule 5.16, or as would not, individually or in the
aggregate, have a Material Adverse Effect, each parcel of Real Property:
(a) has been operated by Seller in compliance with all
applicable Environmental Laws;
(b) is not the subject of any pending written notice from any
governmental authority alleging the violation of any applicable Environmental
Laws;
(c) is not currently subject to any court order,
administrative order or decree arising under any Environmental Law;
(d) has not been used during the period of Seller's ownership
or occupancy of such Real Property for the disposal of Hazardous Substances and
is not contaminated with any Hazardous Substances requiring remediation under
any applicable Environmental Law; and
(e) has not, during the period of Seller's ownership or
occupancy of such Real Property, had any release of Hazardous Substances except
as permitted under applicable Environmental Laws.
For purposes of this Section 5.16, with respect to the parcels which are
subject to Branch Leases and Tenant Leases, "Seller's knowledge" shall mean
that an officer of Seller who holds the title of Senior Vice President or above
and has responsibility with respect to management of operations conducted at
the Branches on such parcels has received actual written notice from the
landlord that any one of the representations in (a) through (e) above is not
correct.
5.17 Broker's Fees. Except for Xxxxxxxxxx Securities, no broker has
been employed by or on behalf of Seller in connection with the transactions
contemplated by this Agreement. Seller will pay the fees of Xxxxxxxxxx
Securities.
5.18 Limitations on Representations and Warranties. Notwithstanding
anything to the contrary contained herein Seller makes no representations or
warranties to Purchaser in this Agreement or in any agreement, instrument or
other document executed in connection with any of the transactions contemplated
hereby or provided or prepared pursuant hereto or in connection with any of the
transactions contemplated hereby:
(a) As to title to Owned Real Property or as to the physical
condition (including, without limitation, ability to withstand seismic events)
of the Branches or Personal Property, all
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of which are being sold "AS IS", "WHERE IS" and with all faults at the Closing
Date; or
(b) As to whether, or the length of time during which, any
accounts will be maintained by the depositors at the Branches after the Closing
Date.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to Seller as follows:
6.1 Corporate Organization and Authority. Purchaser is a multi-bank
holding company, duly organized and validly existing under the laws of the
state of Texas and has the requisite power and authority to conduct the
business conducted at the Branches substantially as currently conducted by
Seller. Purchaser has the requisite corporate power and authority and has taken
all corporate action necessary in order to execute and deliver this Agreement
and to consummate the transactions contemplated hereby. This Agreement is a
valid and binding agreement of Purchaser enforceable in accordance with its
terms subject, as to enforcement, to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity principles.
6.2 No Conflicts. The execution, delivery and performance of this
Agreement by Purchaser does not, and will not, (i) violate any provision of its
charter or by-laws or (ii) violate or constitute a breach of, or default under,
any law, rule, regulation, judgment, decree, ruling or order of any court,
government or governmental agency to which Purchaser is subject or under any
agreement or instrument of Purchaser, or to which Purchaser is subject or by
which Purchaser is otherwise bound, which violation, breach, contravention or
default referred to in this clause (ii), individually or in the aggregate,
would have a Material Adverse Effect.
6.3 Approvals and Consents. Other than the Regulatory Approvals or as
otherwise disclosed in writing to Seller by Purchaser prior to the date hereof,
no notices, reports or other filings are required to be made by Purchaser with,
nor are any consents, registrations, approvals, permits or authorizations
required to be obtained by Purchaser from any governmental or regulatory
authorities of the United States, the several States or any foreign
jurisdictions in connection with the execution and delivery of this Agreement
by Purchaser and the consummation of the transactions contemplated hereby by
Purchaser, the failure to make or obtain any or all of which, individually or
in the aggregate, would have a Material Adverse Effect.
6.4 Regulatory Matters. (a) Except as previously disclosed in writing
to Seller, there are no pending, or to Purchaser's knowledge threatened,
disputes or controversies between Purchaser
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and any federal, state or local governmental agency or authority that,
individually or in the aggregate, would have a Material Adverse Effect.
(b) Purchaser is not a party to any written order, decree,
agreement or memorandum of understanding with, or commitment letter or similar
submission to, any federal or state governmental agency or authority charged
with the supervision or regulation of depository institutions, nor has
Purchaser been advised by any such agency or authority that it is contemplating
issuing or requesting (or is considering the appropriateness of issuing or
requesting) any such order, decree, agreement, memorandum of understanding.
commitment letter or submission, in each case which, individually or in the
aggregate, would have a Material Adverse Effect.
(c) Purchaser is, and on a pro forma basis giving effect to
the P&A Transaction will be, (i) at least "adequately capitalized", as defined
for purposes of the FDIA, and (ii) in compliance with all capital requirements'
standards and ratios required by each state or federal bank regulator with
jurisdiction over Purchaser, including, without limitation. any such higher
requirements, standard or ratio as shall apply to institutions engaging in the
acquisition of insured institution deposits, assets or branches, and no such
regulator is likely to, or has indicated that it will, condition any of the
Regulatory Approvals upon an increase in Purchaser's capital or compliance with
any capital requirements, standard or ratio.
(d) Purchaser has no knowledge that it will be required to
divest deposit liabilities, branches, loans or any business or line of business
as a condition to the receipt of any of the Regulatory Approvals.
(e) Each of the subsidiaries or Affiliates of Purchaser that
is an insured depository institution was rated "Satisfactory" or "Outstanding"
following its most recent Community Reinvestment Act examination by the
regulatory agency responsible for its supervision. Purchaser has received no
notice of and has no knowledge of any planned or threatened objection by any
community group to the transactions contemplated hereby.
6.5 Litigation and Undisclosed Liabilities. There are no actions,
suits or proceedings that have a reasonable likelihood of an adverse
determination pending or, to Purchaser's knowledge, threatened against
Purchaser, or obligations or liabilities (whether or not accrued, contingent or
otherwise) or, to Purchaser's knowledge, facts or circumstances that could
reasonably be expected to result in any claims against or obligations or
liabilities of Purchaser that, individually or in the aggregate, would have a
Material Adverse Effect.
6.6 Financing Available. Purchaser's ability to consummate the
transactions contemplated by this Agreement is not contingent
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on raising any equity capital, obtaining specific financing thereof, consent of
any lender or any other matter.
6.7 Broker's Fees. Purchaser has not employed any broker or finder or
incurred any liability for any brokerage fees, commissions or finder's fees in
connection with the transactions contemplated by this Agreement, except for
fees and commissions for which Purchaser shall be solely liable.
ARTICLE 7
COVENANTS OF THE PARTIES
7.1 Activity in the Ordinary Course. Until the Closing Date, (a)
Seller shall conduct the business of the Branches (including, without
limitation, filling open positions at the Branches and job-posting in the
Branches for open positions at other offices of Seller) in the ordinary and
usual course of business consistent with past practice and giving effect to the
fact that Seller is engaged in certain systems conversions and office closings
arising out of its recent merger with First Interstate Bank, and (b) Seller
shall not, without the prior written consent of Purchaser:
(i) Increase or agree to increase the salary, remuneration or
compensation of any Branch Employee (or make any material increase or decrease
in the number of such persons, or transfer such persons to or from any Branch)
other than in accordance with Seller's existing customary policies generally
applicable to employees having similar rank or duties, or pay or agree to pay
any uncommitted bonus to any Branch Employee other than regular bonuses granted
in the ordinary course of Seller's business (which bonuses, in any event, shall
be the responsibility of Seller); or, except at the request of such Branch
Employee, transfer any Branch Employee to another branch or office, of Seller
or any of its Affiliates;
(ii) Offer interest rates or terms on any category of deposits
at a Branch except as determined in a manner consistent with Seller's practice
with respect to its branches which are not being sold;
(iii) Transfer to or from any Branch to or from any of Seller's
other operations or branches any material Assets or any Deposits, except (A) in
the ordinary course of business or as contemplated in this Agreement, or (B)
upon the unsolicited request of a depositor or customer;
(iv) Sell, transfer, assign, encumber or otherwise dispose of
or enter into any contract, agreement or understanding to sell, transfer,
assign, encumber or dispose of any of the Assets existing on the date hereof,
except in the ordinary course of business and in ,an immaterial aggregate
amount; provided, however, that in any event, Seller shall not knowingly take
any action that would create any Encumbrance on any of the Real Property or the
Branch Leases;
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(v) Make or agree to make any material improvements to the
Owned Real Property, except with respect to commitments for such made on or
before the date of this Agreement (and heretofore disclosed in writing to
Purchaser) and normal maintenance, repair or refurbishing purchased or made in
the ordinary course of business;
(vi) File any application or give any notice to relocate or
close any Branch or relocate or close any Branch;
(vii) Amend, terminate or extend in any material respect any
Branch Lease, Tenant Lease or Personal Property Lease; provided, however,
Seller may extend any Branch Lease, Tenant Lease or Personal Property Lease, in
its reasonable business judgment (including, without limitation, pursuant to
the terms and conditions of any contractual option to extend in any Branch
Lease, Tenant Lease or Personal Property Lease) if Seller determines such
extension is necessary to deliver the Branch on the Closing Date as a fully
operative branch banking operation.
7.2 Access and Confidentiality. (a) Until the Closing Date, Seller
shall afford to Purchaser and its officers and authorized agents and
representatives reasonable access to the properties, books, records, contracts,
documents, files and other information of or relating to the Assets and
Liabilities. Purchaser and Seller each will identify to the other, within ten
(10) days after the date hereof, a selected group of their respective salaried
personnel that shall constitute a "transition group" who will be available to
Seller and Purchaser, respectively, at reasonable times (limited to normal
operating hours) to provide information and assistance in connection with
Purchaser's investigation of matters relating to the Assets and Liabilities.
Seller shall cause other personnel to be reasonably available during normal
business hours, to an extent not disruptive of ongoing operations, for the same
purposes. Any investigation pursuant to this Section 7.2 shall be conducted in
such manner as not to interfere unreasonably with the conduct of the Seller's
business. Notwithstanding the foregoing, Seller shall not be required to
provide access to or disclose information where such access or disclosure would
impose an unreasonable burden on Seller, or any employee of Seller or would
violate or prejudice the rights of customers, jeopardize any attorney-client
privilege or contravene any law, rule, regulation, order, judgment, decree,
fiduciary duty or binding agreement entered into prior to the date of this
Agreement. The parties hereto shall make appropriate substitute disclosure
arrangements under circumstances in which the restrictions of the preceding
sentence apply.
(b) EACH PARTY TO THIS AGREEMENT SHALL HOLD, AND SHALL CAUSE
ITS RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, CONSULTANTS AND ADVISORS
TO HOLD, IN STRICT CONFIDENCE, UNLESS DISCLOSURE TO A BANK REGULATORY AUTHORITY
IS NECESSARY OR DESIRABLE IN CONNECTION WITH ANY REGULATORY APPROVAL OR UNLESS
COMPELLED TO DISCLOSE BY JUDICIAL OR ADMINISTRATIVE PROCESS OR, IN THE WRITTEN
OPINION OF
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ITS COUNSEL, BY OTHER REQUIREMENTS OF LAW OR THE APPLICABLE REQUIREMENTS OF ANY
REGULATORY AGENCY OR RELEVANT STOCK EXCHANGE, ALL NON-PUBLIC RECORDS, BOOKS,
CONTRACTS, INSTRUMENTS, COMPUTER DATA AND OTHER DATA AND INFORMATION
(COLLECTIVELY, "INFORMATION") CONCERNING THE OTHER PARTY (OR, IF REQUIRED UNDER
A CONTRACT WITH A THIRD PARTY, SUCH THIRD PARTY) FURNISHED IT BY SUCH OTHER
PARTY OR ITS REPRESENTATIVES PURSUANT TO THIS AGREEMENT (EXCEPT TO THE EXTENT
THAT SUCH INFORMATION CAN BE SHOWN TO HAVE BEEN (i) PREVIOUSLY KNOWN BY SUCH
PARTY ON A NON-CONFIDENTIAL BASIS, (ii) IN THE PUBLIC DOMAIN THROUGH NO FAULT
OF SUCH PARTY, OR (iii) LATER LAWFULLY ACQUIRED FROM OTHER SOURCES BY THE PARTY
TO WHICH IT WAS FURNISHED), AND NEITHER PARTY SHALL RELEASE OR DISCLOSE SUCH
INFORMATION TO ANY OTHER PERSON, EXCEPT ITS AUDITORS, ATTORNEYS, FINANCIAL
ADVISORS, BANKERS, OTHER CONSULTANTS AND ADVISORS AND, TO THE EXTENT PERMITTED
ABOVE, TO BANK REGULATORY AUTHORITIES.
7.3 Regulatory Approvals. As soon as practicable after the date of
this Agreement, Purchaser shall prepare and file any-applications, notices and
filings required in order to obtain the Regulatory Approvals. Purchaser shall
use all reasonable efforts to obtain each such approval as promptly as
reasonably practicable and, to the extent possible, in order to permit the
Closing to occur not later than July 18, 1997. Seller will cooperate in
connection therewith (including the furnishing of any information and any
reasonable undertaking or commitments which may be required to obtain the
Regulatory Approvals). Each party will provide the other with copies of any
applications and all correspondence relating thereto prior to filing, other
than material filed in connection therewith under a claim of confidentiality.
7.4 Consents. Seller agrees to use reasonable commercial efforts
(such efforts not to include making payments to third parties) to obtain from
lessors and any other parties to any Branch Leases or Personal Property Leases
any required consents to the assignment of the Branch Leases and Personal
Property Leases to Purchaser on the Closing Date; provided, however, Seller
shall not be obligated to incur any monetary obligations or expenditures to the
parties whose consent is required in connection with the utilization of its
reasonable efforts to obtain any such required consents. If any such required
consent cannot be obtained, notwithstanding any other provision hereof, the
Assets and Liabilities associated with the subject Branch, other than any such
Branch Lease or any Personal Property Lease or as to which consent cannot be
obtained, shall nevertheless be transferred to Purchaser at the Closing and the
parties shall negotiate in good faith and Seller and Purchaser shall use
reasonable efforts (such efforts not to include making payments to third
parties) to make alternative arrangements reasonably satisfactory to Seller and
Purchaser. In the event Seller does not obtain consent from the lessors and any
other parties to any Branch Lease or Personal Property Lease, Seller shall not
be obligated to deliver physical possession of the subject Branch or the
personal property subject to such Personal Property Lease to Purchaser at the
Closing.
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7.5 Efforts to Consummate; Further Assurances. (a) Purchaser and
Seller agree to use all reasonable efforts to satisfy or cause to be satisfied
as soon as practicable their respective obligations hereunder and the
conditions precedent to the Closing.
(b) Seller will duly execute and deliver such assignments, bills of
sale, deeds, acknowledgments and other instruments of conveyance and transfer
as shall at any time be necessary or appropriate to vest in Purchaser the full
legal and equitable title to the Assets.
(c) On and after the Closing Date, each party will promptly deliver
to the other all mail and other communications properly addressable or
deliverable to the other as a consequence of the P&A Transaction; and without
limitation of the foregoing, on and after the Closing Date, Seller shall
promptly forward any mail, communications or other material relating to the
Deposits or the Assets transferred on the Closing Date, including, but not
limited to, that portion of any IRS "B" tapes that relates to such Deposits, to
such employees of Purchaser at such addresses as may from time to time be
specified by Purchaser in writing.
(d) The costs incurred by a party in performing its obligations to
the other (x) under Sections 7.5(a) and (c) shall be borne by the initial
recipient and (y) otherwise under this Section 7.5 shall be borne by Purchaser.
Seller will cooperate with Purchaser to minimize the costs referred to in
clause (y).
7.6 Solicitation. (a) Until the Closing Date and for an additional
six (6) months following the Closing Date, Seller agrees that it will not
solicit deposits (but may solicit loans, mutual fund purchases or other
investment products, or other business) from or to persons or entities who were
depositors at the Branches on the date hereof by personal contact, by
telephone, by facsimile, by mail or other similar solicitation, or in any other
way except for general solicitations and solicitations that are not directed
primarily to persons or entities who were depositors of the Branches on the
date hereof, provided, however, (i) Seller may, prior to Closing, solicit those
customers whose accounts are not domiciled in the Branches, but who regularly
use the Branches for their deposit and withdrawal transactions, to move their
Deposit accounts into the Branches prior to Closing, (ii) Seller may solicit
depositors who as of the date of this Agreement have existing accounts
originating at branches or other offices of Seller or its Affiliates other than
the Branches pursuant to solicitations which arise from their status as a
customer at such other branches or offices; and (iii) Seller may solicit major
or statewide depositors (such as, for example, a company with more than one
location or the state government or any agency or instrumentality thereof)
without restriction hereunder.
(b) Prior to the Closing Date, Purchaser agrees that it will not
attempt to solicit Branch customers through advertising nor transact its
business in a way which would induce such Branch
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customers to close any account and open accounts directly with Purchaser or
would otherwise result in a transfer of all or a portion of an existing account
from Seller to Purchaser or to any other financial institution. Notwithstanding
the foregoing sentence. Purchaser and its Affiliates shall be permitted to: (i)
engage in advertising, solicitations or marketing campaigns not primarily
directed to or targeted at such Branch customers; (ii) engage in lending,
deposit, safe deposit, trust or other financial services relationships existing
as of the date hereof which such Branch customers through other branch offices
of Purchaser; (iii) respond to unsolicited inquiries by such Branch customers
with respect to banking or other financial services; and (iv) provide notices
or communications relating to the transactions contemplated hereby in
accordance with the provisions hereof.
7.7 Insurance. Seller will maintain in effect until the Closing Date
all casualty and public liabilities policies relating to the Branches and
maintained by Seller on the date hereof or procure comparable replacement
policies and maintain such replacement policies in effect until the Closing
Date. Purchaser shall provide all casualty and public liability insurance for
the Branches subsequent to the Closing Date.
7.8 No Servicing and Maintenance Contracts. No existing contracts of
Seller with respect to the service, maintenance and physical operation of the
Branches will be assumed at the Closing by Purchaser. All such service and
maintenance shall be provided by Purchaser, subsequent to the Closing, pursuant
to its own contracts.
7.9 Signage. Purchaser shall, at its own expense, remove and dispose
of all Xxxxx Fargo Bank signage as soon as practicable after the Closing.
ARTICLE 8
TAXES AND EMPLOYEE BENEFITS
8.1 Tax Representations. Seller represents and warrants to Purchaser
as follows:
(a) Except as set forth in Schedule 8.1, all Tax Returns with respect
to the Assets or income therefrom, the Liabilities or payments in respect
thereof or the operation of the Branches, that are required to be filed (taking
into account any extension of time within which to file) before the Closing
Date, have been or will be duly filed, and all Taxes shown to be due on such
Tax Returns have been or will be paid in full.
(b) With respect to the Deposits, Seller is in compliance with the
Code and regulations thereunder relative to obtaining form depositors of the
Deposits executed IRS Forms W-8 and W-9. With respect to the Deposits opened
after December 31, 1983, Seller has either obtained a properly completed Form
W-8 or W-9 (or a substitute form meeting applicable requirements) or is back-up
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withholding on such account.
8.2 Proration of Taxes. Except as otherwise agreed to by the parties,
whenever it is necessary to determine the liability for Taxes for a portion of
a taxable year or period that begins before and ends on or after the Closing
Date, the determination of the Taxes for the portion of the year or period
ending on, and the portion of the year or period beginning on or after, the
Closing Date shall be determined by assuming that the taxable year or period
ended at 11:59 P.M. California time on the day prior to the Closing Date.
8.3 Sales and Transfer Taxes. Except as set forth in Section 3.9, all
excise, sales, use and transfer taxes that are payable or that arise as a
result of the consummation of the purchase and sale contemplated by this
Agreement shall be paid by Purchaser and Purchaser shall indemnify and hold
Seller harmless from and against any such taxes.
8.4 Information Returns. At the Closing or as soon thereafter as is
practicable, Seller shall provide Purchaser with a list of all Deposits for
which Seller has not received a properly completed Form W-8 and W-9 (or a
substitute form meeting applicable requirements) or on which Seller is back-up
withholding as of the Closing Date. Seller agrees to indemnify Purchaser in an
amount equal to any penalty and interest imposed upon Purchaser by the IRS
which Purchaser is thereafter required to, and does, pay to the IRS where such
penalty and interest arises out of actions taken or omitted to be taken by
Purchaser in reasonable reliance upon information provided under this Section
8.4 and such penalty and interest does not result from an act or omission of
Purchaser not made in reasonable reliance upon such information. The term
"interest" for purposes of this Section 8.4 means interest accrued prior to the
receipt by Purchaser of a notice of Penalty from the IRS regarding Forms W-8 or
W-9 for the Deposits Purchaser shall timely notify Seller of such penalty
notice prior to Purchaser's payment of penalty or interest. Seller has the
right, at its own expense, to protest such penalty and interest. Purchaser
shall cooperate fully with respect to Seller's protest, including furnishing
all relevant information records and documents.
8.5 Payment of Amount Due Under Article 8. Any payment by Seller to
Purchase or to Seller from Purchaser, under this Article 8 (other than payments
required by Section 8.3 the extent due at the Closing may be offset against any
payment due the other party at the Closing. All subsequent payments under this
Article 8 shall be made as soon as determinable and shall be made and bear
interest from the date due to the date of payment as provided in Section
3.2(b).
8.6 Assistance and Cooperation. After the Closing Date, each of
Seller and Purchaser shall:
(a) Make available to the other and to any taxing authority
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as reasonably requested relevant information, records, and documents relating
to Taxes with respect to the Assets or income therefrom, the Liabilities or
payments in respect thereof, or the operation of the Branches;
(b) Provide timely notice to the other in writing of any pending or
proposed Tax audits (with copies of all relevant correspondence received from
any Taxing authority in connection with any Tax audit or information request)
or Tax assessments with respect to the Assets or the income therefrom, the
Liabilities or payments in respect thereof, or the operation the Branches for
taxable periods for which the other may have a liability under this Article 8;
and
(c) The party requesting assistance or cooperation shall bear the
other party's out-of-pocket expenses in complying with such request to the
extent that those expenses are attributable to fees and other costs
8.7 Employees. (a) As soon as reasonably practicable and in any event
within thirty (30) days of the date hereof, Seller shall deliver to Purchaser a
true and complete list of all Branch Employees by name, date of hire and
position, as of the date hereof, together with their most recent performance
evaluations, current salaries and other compensation arrangements; provided,
however, that Seller shall not release a performance evaluation without having
first obtained the written consent of the respective Branch Employee. Purchaser
may, at its discretion, interview any and all Branch Employees. Purchaser shall
make employment available to all Branch Employees on the Closing Date upon the
terms and conditions described below. Seller shall promptly inform Purchaser of
any Branch Employee who resigns prior to the Closing Date. On and after the
Closing Date, Branch Employees employed by Purchaser shall be defined as
Transferred Employees for all purposes hereof. Subject to the provisions of
this Section 8.7, Transferred Employees shall be subject to the employment
terms, conditions and rules applicable to other employees of Purchaser. Nothing
contained in this Agreement shall be construed as an employment contract
between Purchaser and any Branch Employee or Transferred Employee.
(b) Purchaser may interview Branch Employees during normal working
hours. Purchaser shall be solely responsible for any activity in connection
with interviewing Branch Employees. Purchaser indemnities and holds Seller
harmless from and against any claim, liability, losses, costs or expenses,
including reasonable attorneys' fees, resulting or arising from Purchaser's
acts or omissions in connection with said interviews.
(c) Purchaser shall be responsible for the Assumed Severance
Obligations with respect to all Branch Employees.
(d) Each Transferred Employee shall be provided employment subject to
the following terms and conditions:
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(i) Base salary rate shall be at least equivalent to the rate
of base salary paid by Seller to such Transferred Employee as of the close of
business on the day prior to the Closing Date.
(ii) Except as specifically provided herein, Transferred
Employees shall be provided employee benefits that are no less favorable in the
aggregate than those provided to similarly situated employees of Purchaser.
Purchaser shall provide such Transferred Employee with credit for the
Transferred Employee's period of service with Seller (including any service
credited from First Interstate Bank as a predecessor entity to Seller) towards
the calculation of eligibility for such purposes as vacation, severance and
other benefits and participation and vesting in Purchaser's qualified pension
or profit sharing plan, as such plans may exist (but, except as set forth in
(v) below and for vacation, not for purpose of benefit accruals, including
without limitation, funding of accrued pension or profit sharing plans for such
Transferred Employee with respect to any period prior to the Closing Date).
(iii) Each Transferred Employee shall be eligible to participate
in the medical, dental or other welfare plans of Purchaser, as such plans may
exist, effective as of the Closing Date and any pre-existing conditions
provisions of such plans shall be waived with respect to such Transferred
Employee; provided, however, that if Purchaser's relevant health or disability
insurance policy or plan has a pre-existing condition limitation and a
Transferred Employee's condition is being excluded (as a pre-existing
condition) under Seller's plan as of the Closing Date, Purchaser may treat such
condition as a pre-existing condition for the period such condition would have
been treated as a preexisting condition under Seller's plan under which such
Transferred Employee would have been covered.
(iv) With respect to any Transferred Employee on a short-term
disability or temporary leave of absence, upon conclusion of his or her short-
term disability or temporary leave of absence, subject to the terms and
conditions of the Purchaser's plans and policies and applicable law, each
Transferred Employee on such leave shall receive the salary and vacation
benefits in effect when he or she went on leave, shall otherwise be treated as
a Transferred Employee and, to the extent practicable, shall be offered by
Purchaser the same or a substantially equivalent position to his or her
position with Seller prior to having gone on leave.
(v) Until April 1, 1998, each Transferred Employee shall be
eligible for benefits under the severance and similar plans referred to in
Schedule 1.1(a), copies of which have been provided to Purchaser (the "Assumed
Severance Obligations"). After April 1, 1998, each Transferred Employee, who is
continuously employed by Purchaser as of the Closing Date, shall be eligible
for benefits under any severance or similar plans maintained by Purchaser with
credit for the period of years of credited service with Seller
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towards the calculation of benefits.
(e) Except as provided herein, Seller shall pay, discharge and be
responsible for (i) all salary and wages, arising out of or relating to the
employment of the Branch Employees before the Closing Date and (ii) any
employee benefits (including, but not limited to, accrued vacation) arising
under Seller's employee benefit plans and employee programs prior to the
Closing Date (but not including any future retiree medical benefits), including
benefits with respect to claims incurred prior to the Closing Date but reported
after the Closing Date. From and after the Closing Date, Purchaser shall pay,
discharge and be responsible for all salary, wages and benefits arising out of
or relating to the employment of the Transferred Employees by Purchaser on and
after the Closing Date, including, without limitation, all claims for welfare
benefit plans incurred on or after the Closing Date. Claims are incurred as of
the date services are provided or disability payments are accrued,
notwithstanding when the injury or illness may have occurred.
(f) To the extent permitted under Purchaser's 401(k) Plan, Seller and
Purchaser shall cooperate in arranging for the transfer to Purchaser's 401(k)
Plan, as soon as practicable after the Closing Date and in a manner that
satisfies sections 414(l) and 411(d)(6) of the Code, of those accounts held
under Seller's 401(k) Plan on behalf of Transferred Employees.
(g) For a period of twelve (12) months following the Closing Date,
Seller shall not solicit any Transferred Employee hired by Purchaser as of the
Closing Date to again become an employee of Seller or any of its Affiliates;
provided, however, that Seller shall not be prohibited from hiring a
Transferred Employee if such Transferred Employee contacts Seller to seek such
hiring or retention, whether in response to general advertising or otherwise.
For purposes of this Section 8.7, the term "Seller" shall include Xxxxx Fargo &
Company, a Delaware corporation and their Affiliates.
8.8 Branch Employee Representations. (a) Seller represents and
warrants to Purchaser, to Seller's knowledge, as follows:
(i) none of the Branch Employees is a member of any labor
union;
(ii) Seller is not a party to any individual contract, written
or oral, express or implied, for the employment of any Branch Employee, and
Seller is not subject to any collective bargaining arrangement with respect to
any Branch Employee;
(iii) Seller's 401(k) Plan is in compliance in all material
respects with applicable law;
(iv) no liabilities exist or are reasonably expected to exist
under any employee benefit plan of Seller that, individually or in the
aggregate, would have a Material Adverse Effect; and
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(v) Seller has not entered into any individual agreement or
otherwise made any individual commitment to any Branch Employee with respect to
continued employment by Purchaser.
(b) Seller shall indemnify and hold Purchaser harmless from and
against any claims, losses, damages or expenses (including attorney's fee)
suffered as a result of any failure to give any notice to its Branch Employees
required by the Worker Adjustment and Retraining Notification Act (the "WARN
Act"), provided such notice is required as a result of action by Seller prior
to the Closing Date.
ARTICLE 9
CONDITIONS TO CLOSING
9.1 Conditions to Obligations of Purchaser. Unless waived in writing
by Purchaser, the obligation of Purchaser to consummate the P&A Transaction is
conditioned upon satisfaction of each of the following conditions:
(a) Regulatory Approvals. All consents, approvals and authorizations
required to be obtained prior to the Closing from governmental and regulatory
authorities in connection with the execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby to be consummated at
the Closing, including the Regulatory Approvals, shall have been made or
obtained, and shall remain in full force and effect, and all waiting periods
applicable to the consummation of the P&A Transaction shall have expired or
been terminated; provided, however, that no Regulatory Approval shall have
imposed any condition or requirement (a "Burdensome Condition") that would (i)
result in any Material Adverse Effect, or (ii) require Purchaser to effect any
divestiture that would constitute a substantial portion of the business or
properties of the Branches, taken as a whole.
(b) Orders. No court or governmental authority of competent
jurisdiction shall have enacted, issued, promulgated, enforced or entered any
statute, rule, regulation, judgment, decree, injunction or other order (whether
temporary, preliminary or permanent) (any of the foregoing, an "Order") which
is in effect and prohibits or makes illegal the consummation of the P&A
Transaction or would otherwise result in a Material Adverse Effect.
(c) Representations and Warranties; Covenants. Each of the
representations and warranties of Seller contained in this Agreement shall be
true in all material respects when made and as of the Closing Date, with the
same effect as though such representations and warranties had been made on and
as of the Closing Date (except that representations and warranties relating to
Assets and Liabilities transferred at the Closing Date shall only be made, and
need only be true in all material respects, on and as of the Closing Date).
Purchaser shall have received at Closing a certificate to that effect dated as
of such Closing Date and executed by the President or any Executive Vice
President of
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Seller. Each of the covenants and agreements of Seller to be performed on or
prior to the Closing Date shall have been duly performed in all material
respects. Purchaser shall have received at Closing a certificate to that effect
dated as of such Closing Date and executed by the President or any Executive
Vice President of Seller.
Notwithstanding any other provision of this Agreement, if there shall be a
failure of any condition specified in this Section 9.1 to the obligations of
Purchaser in respect of the acquisition of any specific Branch or Branches the
aggregate Deposits of which as of the date hereof shall constitute less than
25% of the Deposits in all of the Branches subject to this Agreement as of the
date hereof, Purchaser nevertheless shall be obligated to consummate the P&A
Transaction but may, upon written notice to Seller, exclude from the
transaction the Branch or Branches in respect of which the failure of condition
shall exist, in which case, appropriate adjustment shall be made in the
schedules hereto and the other documents to be delivered pursuant hereto so as
to duly reflect the deletion of such Branch or Branches from the transactions
contemplated hereby (and, consequently, to the calculation of the Estimated
Purchase Price, Estimated Payment Amount, Purchase Price and Adjusted Payment
Amount). If any Branch is excluded from this Agreement or if Purchaser
nevertheless elects to purchase any Branch which would otherwise be so excluded
and such Branch is transferred to Purchaser at the Closing (subject to
Purchaser's rights under Section 12.1 (a)), any event that would otherwise
constitute a breach of warranty or failure of condition in respect of such
Branch arising solely from or relating to the operation of this paragraph shall
not constitute a breach of warranty or failure of condition.
9.2 Conditions to Obligations of Seller. Unless waived in writing by
Seller, the obligation of Seller to consummate the P&A Transaction is
conditioned upon satisfaction of each of the following conditions:
(a) Regulatory Approvals. All consents, approvals and authorizations
required to be obtained prior to the Closing from governmental and regulatory
authorities in connection with the execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby to be consummated at
the Closing, including the Regulatory Approvals, shall have been made or
obtained, and shall remain in full force and effect, and all statutory waiting
periods applicable to the consummation of the P&A Transaction shall have
expired or been terminated.
(b) Orders. No Order shall be in effect that prohibits or makes
illegal the consummation of the P&A Transaction.
(c) Representations and Warranties; Covenants. Each of the
representations and warranties of Purchaser contained in this Agreement shall
be true in all material respects when made and as of the Closing Date, with the
same effect as though such
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representations and warranties had been made on and as of the Closing Date
(except that representations and warranties that are made as of a specific date
need be true in all material respects only as of such date). Seller shall have
received at Closing a certificate to that effect dated as of such Closing Date
and executed by the President or any Executive Vice President of Purchaser.
Each of the covenants and agreements of Purchaser to be performed on or prior
to the Closing Date shall have been duly performed in all material respects.
Seller shall have received at Closing a certificate to that effect dated as of
such Closing Date and executed by the President or any Executive Vice President
of Purchaser.
ARTICLE 10
ENVIRONMENTAL MATTERS
10.1 Environmental Matters. (a) Seller has provided to Purchaser and
Purchaser hereby acknowledges receipt of copies of Phase I environmental site
assessments for all Owned Real Property and asbestos reports with respect to
all the Real Property, except for Real Property where the improvements have
been completed after December 31, 1978. Such Phase I environmental site
assessments for all Owned Real Property have been dated (or supplemented) on or
after January 1, 1996.
(b) If such Phase I site assessments and asbestos reports reasonably
indicate the necessity or desirability of further investigation to determine
whether or not an Environmental Hazard or an Asbestos Hazard exists at such
Real Property, Purchaser may elect, not later than thirty (30) days after the
signing of this Agreement, to have Xxxxxxx Environmental or Building Analytics
(the "Environmental Consultant"), to the extent reasonable and appropriate,
conduct Phase II environmental site assessments and additional asbestos
investigations, the cost of which shall be shared equally by the parties. Any
such further investigation or testing shall be conducted in such a manner so as
not to interfere with the normal operation of the Branch(s) involved. All such
Phase II environmental site assessments and additional asbestos reports shall
be treated as information subject to Section 7.2(b) and shall be completed not
less than ninety (90) days after the signing of this Agreement.
(c) In the event that the Environmental Consultant has discovered an
Environmental Hazard, and/or Asbestos Hazard, during any such Phase II
environmental site assessment at any single parcel of Owned Real Property, the
remediation of which, in the reasonable judgment of the Environmental
Consultant, is or would be the responsibility of Seller, or Purchaser should it
acquire such Owned Real Property, and will cost $100,000 or more for such
single parcel of Owned Real Property, Purchaser shall lease from Seller such
single parcel of Owned Real Property pursuant to a Lease Agreement that shall
provide as follows:
(i) Such Lease Agreement shall be for a term of two (2)
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years, with no obligation or right to renew (it being the intention of
Seller that Purchaser locate an alternative branch site during such two
years), at a rental equal to a fair market rental value;
(ii) Seller may sell such Owned Real Property to any person,
subject to such Lease Agreement, for any price;
(iii) During the term of such Lease Agreement, in the event that
Seller shall deliver to Purchaser a report of a qualified environmental
engineer or consultant certifying that the Environmental Hazard, and/or
Asbestos Hazard, at or on any such leased parcel of Owned Real Property
has been remediated to the extent required under applicable
Environmental Laws, Purchaser shall be required to purchase such parcel
of Owned Real Property 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 such branch leases in the market as negotiated between Seller
and Purchaser.
If the remediation cost is less than $100,000 for any single parcel of
Owned Real Property, Purchaser shall acquire such parcel and such cost shall be
borne by Purchaser without indemnity or price adjustment under this Agreement.
(d) Purchaser agrees that it and its Environmental Consultant shall
conduct any Phase II environmental site 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.
(e) Any lease of a parcel of Owned Real Property under Section
10.1(c) shall in no way affect the transfer of any Assets or Liabilities, other
than such parcel of Owned Real Property, to the Purchaser at the Closing.
ARTICLE 11
TERMINATION
11.1 Termination. This Agreement may be terminated at any time prior
to the Closing Date:
(a) By the mutual written agreement of Purchaser and Seller;
(b) By Seller or Purchaser, in the event of a material breach by the
other of any representation, warranty or agreement contained herein which is
not cured or cannot be cured within thirty (30) days after written notice of
such termination has been delivered to
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the breaching party; provided, however, that termination pursuant to this
Section 11.1(b) shall not relieve the breaching party of liability arising out
of or related to such breach;
(c) By Seller or Purchaser, in the event that the Closing has not
occurred by November 30, 1997, unless the failure to so consummate by such time
is due to a breach of this Agreement by the party seeking to terminate;
(d) By Seller or Purchaser at any time after the denial or revocation
of any Regulatory Approval or by Purchaser if any such approval has been
obtained which contains a Burdensome Condition; or
(e) By Seller if, at any time prior to the Closing Date, an
appropriate official of any governmental agency or authority whose consent,
approval or authorization is required in order for Purchaser to consummate the
transactions contemplated hereby shall have advised that such authority will
not grant such consent, approval or authorization or will grant the same only
subject to a Burdensome Condition (unless Purchaser shall have waived the
condition provided for in the proviso to Section 9.1(a)), or where there shall
be in effect any Order, or if there shall exist any proceeding which, in
Seller's reasonable judgment, would result in an Order; provided, however, that
Purchaser shall have fifteen (15) days following receipt of notice from Seller
to remedy any such situation or to provide assurances reasonably acceptable to
Seller that such situation will be remedied by the Closing Date.
11.2 Effect of Termination. In the event of termination of this
Agreement and abandonment of the transactions contemplated hereby pursuant to
Section 11.1, no party hereto (or any of its directors, officers, employees,
agents or Affiliates) shall have any liability or further obligation to any
other party, except as provided in Section 7.2(b) and except that nothing
herein will relieve any party from liability for any breach of this Agreement.
ARTICLE 12
INDEMNIFICATION AND OTHER REMEDIES
12.1 Indemnification. (a) Subject to Section 13.1, Seller shall
indemnify and hold harmless Purchaser and any person directly or indirectly
controlling Purchaser from and against any and all Losses which Purchaser may
suffer, incur or sustain arising out of or attributable to (i) any breach of
any representation or warranty made by Seller in this Agreement, (ii) any
material breach of any covenant or agreement to be performed by Seller pursuant
to this Agreement, (iii) any claim, penalty asserted, legal action or
administrative proceeding based upon any action taken or omitted to be taken by
Seller or conditions existing prior to the Closing Date, relating in any such
case to the operation of the Branches, the Assets or the Liabilities; or (iv)
any liability, obligation or duty of Seller that is not a Liability.
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(b) Subject to Section 13.1, Purchaser shall indemnify and hold
harmless Seller and any person directly or indirectly controlling Seller from
and against any and all Losses which Seller may suffer, incur or sustain
arising out of (i) any breach of any representation or warranty made by
Purchaser in this Agreement, (ii) any material breach of any covenant or
agreement to be performed by Purchaser pursuant to this Agreement, including,
without limitation, the covenants contained in Section 10.2 above, or (iii) any
claim, penalty asserted, legal action or administrative proceeding based upon
any action taken or omitted to be taken by Purchaser on or after the Closing
Date, relating in any such case to the operation of the Branches or the Assets,
or (iv) the Liabilities.
(c) To exercise its indemnification rights under this Section 12.1 as
a result of the assertion against it of any claim or potential liability for
which indemnification is provided, the indemnified party shall promptly notify
the indemnifying party of the assertion of such claim, discovery of any such
potential liability or the commencement of any action or proceeding in respect
of which indemnity may be sought hereunder; PROVIDED, HOWEVER, in no event
shall notice of original claim for indemnification under this Agreement be
given later than the expiration of one (1) year from the Closing Date
(excluding only claims related to the covenants in Section 10.2 above). The
indemnified party shall advise the indemnifying party of all facts relating to
such assertion within the knowledge of the indemnified party, and shall afford
the indemnifying party the opportunity, at the indemnifying party's sole cost
and expense, to defend against such claims for liability. In any such action or
proceeding, the indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at its own expense
unless (i) the indemnifying party and the indemnified party mutually agree to
the retention of such counsel or (ii) the named parties to any such suit,
action, or proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party, and in the reasonable judgment of
the indemnified party, representation of the indemnifying party and the
indemnified party by the same counsel would be inadvisable due to actual or
potential differing defenses or conflicts of interests between them.
(d) The indemnified party shall have the right to settle or
compromise any claim or liability subject to indemnification under this
Section, and to be indemnified from and against all Losses resulting therefrom,
unless the indemnifying party, within sixty (60) calendar days after receiving
written notice of the claim or liability in accordance with Section 12.1(c)
above, notifies the indemnified party that it intends to defend against such
claim or liability and undertakes such defense, or, if required in a shorter
time than sixty (60) calendar days, the indemnifying party makes the requisite
response to such claim or liability asserted.
(e) Notwithstanding anything to the contrary contained in
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this Agreement, an indemnifying party shall not be liable under this Section
12.1 for any Losses sustained by the indemnified party unless and until the
aggregate amount of all indemnifiable Losses sustained by the indemnified party
shall exceed Twenty-Five Thousand Dollars ($25,000) times the number of
Branches being purchased hereunder, in which event the indemnifying party shall
provide indemnification hereunder in respect of all such indemnifiable Losses
in excess of Twenty-Five Thousand Dollars ($25,000) times the number of
Branches being purchased hereunder; provided, however, that the aggregate
amount of indemnification payments payable pursuant to this Section 12.1, shall
in no event exceed the amount of the Purchase Price. An indemnifying party
shall not be liable under this Section 12.1 for any settlement effected,
without its consent, of any claim or liability or proceeding for which
indemnity may be sought hereunder except in the case of a settlement in an
amount which does not exceed Twenty-Five Thousand Dollars ($25,000) times the
number of Branches being purchased hereunder; provided, however, the provisions
of this Section 12.1(e) shall not apply to Purchaser's obligation to indemnify
Seller for a breach of Purchaser's covenants contained in Section 10.2 above.
In no event shall either party hereto be entitled to consequential or punitive
damages or damages for lost profits in any action relating to the subject
matter of this Agreement.
12.2 Purchase Price Adjustment. Any amount paid by Seller or Purchaser
under this Article 12 will be treated as an adjustment to the Purchase Price
unless and to the extent that a "determination" (as defined in Section 1313(a)
of the Code) causes any such amount not to constitute an adjustment to the
Purchase Price for federal Tax purposes.
12.3 Exclusivity. After the Closing, Article 12 will provide the
exclusive remedy for any misrepresentation, breach of warranty, covenant or
other agreement or other claim arising out of this Agreement or the
transactions contemplated hereby.
12.4 AS-IS Sale; Waiver of Warranties. Except as otherwise expressly
set forth in this Agreement, Purchaser acknowledges that the Assets and
Liabilities are being sold and accepted on an "AS-IS-WHERE-IS" basis, and are
being accepted without any representation or warranty. As part of Purchaser's
agreement to purchase and accept the Assets and Liabilities AS-IS-WHERE-IS, and
not as a limitation on such agreement, TO THE FULLEST EXTENT PERMITTED BY LAW,
SELLER HEREBY DISCLAIMS AND PURCHASER HEREBY UNCONDITIONALLY AND IRREVOCABLY
WAIVES AND RELEASES ANY AND ALL ACTUAL OR POTENTIAL RIGHTS PURCHASER MIGHT HAVE
AGAINST SELLER OR ANY PERSON DIRECTLY OR INDIRECTLY CONTROLLING SELLER
REGARDING ANY FORM OF WARRANTY, EXPRESS OR IMPLIED, OF ANY KIND OR TYPE,
RELATING TO THE ASSETS AND LIABILITIES EXCEPT THOSE SET FORTH IN ARTICLE 5 AND
SECTIONS 8.1 AND 8.8. SUCH WAIVER AND RELEASE IS, TO THE FULLEST EXTENT
PERMITTED BY LAW, ABSOLUTE, COMPLETE, TOTAL AND UNLIMITED IN EVERY WAY. SUCH
WAIVER AND RELEASE INCLUDES TO THE FULLEST EXTENT PERMITTED BY LAW, BUT IS NOT
LIMITED TO, A WAIVER
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AND RELEASE OF EXPRESS WARRANTIES (EXCEPT THOSE SET FORTH IN ARTICLE 5 AND
SECTIONS 8.1 AND 8.8), IMPLIED WARRANTIES, WARRANTIES OF FITNESS FOR A
PARTICULAR USE, WARRANTIES OF MERCHANTABILITY, WARRANTIES OF HABITABILITY,
STRICT LIABILITY RIGHTS AND CLAIMS OF EVERY KIND AND TYPE, INCLUDING, BUT NOT
LIMITED TO, CLAIMS REGARDING DEFECTS WHICH WERE NOT OR ARE NOT DISCOVERABLE,
ALL OTHER EXTANT OR LATER CREATED OR CONCEIVED OF STRICT LIABILITY OR STRICT
LIABILITY TYPE CLAIMS AND RIGHTS.
ARTICLE 13
MISCELLANEOUS
13.1 Survival. (a) The parties' respective representations and
warranties contained in this Agreement shall survive until the first
anniversary of the Closing Date, and thereafter neither party may claim any
Loss in relation to a breach thereof. The agreements and covenants contained in
this Agreement shall not survive the Closing except to the extent expressly set
forth herein.
(b) No claim based on any breach of any representation or warranty
shall be valid or made unless written notice with respect thereto is given to
Seller in accordance with this Agreement on or before the date specified in
Section 12.1(c); provided, however, that the provisions of this Section shall
not apply to claims based on Purchaser's breach of Section 10.2 above.
13.2 Assignment. Neither this Agreement nor any of the rights,
interests or obligations of either party may be assigned by either of the
parties hereto without the prior written consent of the other party, and any
purported assignment in contravention of this Section 13.2 shall be void.
13.3 Binding Effect. This Agreement and all of the provisions hereof
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
13.4 Public Notice. Prior to the Closing Date, neither Purchaser nor
Seller shall directly or indirectly make or cause to be made any press release
for general circulation, public announcement or disclosure or issue any notice
or general communication to employees with respect to any of the transactions
contemplated hereby without the prior written consent of the other party (which
consent shall not be unreasonably withheld or delayed). Purchaser agrees that,
without Seller's prior written consent, it shall not release or disclose any of
the terms or conditions of the transactions contemplated herein to any other
person. Notwithstanding the foregoing, each party may make such public
disclosure as, in the opinion of its counsel, may be required by law or as
necessary to obtain the Regulatory Approvals.
13.5 Notices. All notices, requests, demands, consents and other
communications given or required to be given under this Agreement and under the
related documents shall be in writing and
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delivered to the applicable party at the address indicated below:
If to Seller, to: Xxxxx Fargo Bank (Texas), National Association
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxx Xxxxxxxxxxx, Xx., Esq.
Executive Vice President,
Chief Counsel & Secretary
Fax: (000) 000-0000
If to Purchaser, to: National Bancshares Corporation of Texas
X.X. Xxx 0000
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
or, as to each party at such other address as shall be designated by such party
in a written notice to the other party complying as to delivery with the terms
of this Section. Any notices shall be in writing, including telegraphic or
facsimile communication, and may be sent by registered or certified mail,
return receipt requested, postage prepaid, or by fax, or by overnight delivery
service. Notice shall be effective upon actual receipt thereof.
13.6 Expenses. Except as expressly provided otherwise in this
Agreement, each party shall bear any and all costs and expenses which it
incurs, or which may be incurred on its behalf, in connection with the
preparation of this Agreement and consummation of the transactions described
herein, and the expenses, fees, and costs necessary for any approvals of the
appropriate regulatory authorities.
13.7 Governing Law. This Agreement shall be governed by and
interpreted in accordance with the laws of the State of California.
13.8 Entire Agreement; Amendments. (a) This Agreement contains the
entire understanding of and all agreements between the parties hereto with
respect to the subject matter hereof and supersedes any prior or
contemporaneous agreement or understanding, oral or written, pertaining to any
such matters which agreements or understandings shall be of no force or effect
for any purpose; provided, however, that the terms of any confidentiality
agreement between the parties hereto previously entered into, to the extent not
inconsistent with any provisions of this Agreement, shall continue to apply.
(b) This Agreement may not be amended or supplemented in any manner
except by mutual agreement of the parties and as set forth in a writing signed
by the parties hereto or their respective successors in interest. The waiver of
any breach of any provision under this Agreement by any party shall not be
deemed to be a waiver of any preceding or subsequent breach under this
Agreement. No such waiver shall be effective unless in writing.
13.9 Third Party Beneficiaries. This Agreement shall not
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benefit or create any right or cause of action in or on behalf of any person
other than Seller and Purchaser.
13.10 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
13.11 Headings. The headings used in this Agreement are inserted for
purposes of convenience of reference only and shall not limit or define the
meaning of any provisions of this Agreement.
13.12 Consent to Jurisdiction; Waiver of Jury Trial. (a) EACH PARTY
HERETO HEREBY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF
CALIFORNIA AND THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
CALIFORNIA, AS WELL AS TO THE JURISDICTION OF ALL COURTS FROM WHICH AN APPEAL
MAY BE TAKEN OR OTHER REVIEW SOUGHT FROM THE AFORESAID COURTS, FOR THE PURPOSE
OF ANY SUIT, ACTION OR OTHER PROCEEDING ARISING OUT OF SUCH PARTY'S OBLIGATIONS
UNDER OR WITH RESPECT TO THIS AGREEMENT OR ANY OF THE AGREEMENTS, INSTRUMENTS
OR DOCUMENTS CONTEMPLATED HEREBY, AND, TO THE EXTENT IT LAWFULLY MAY DO SO,
EXPRESSLY WAIVES ANY AND ALL OBJECTIONS IT MAY HAVE AS TO VENUE IN ANY OF SUCH
COURTS.
(b) EACH PARTY HERETO HEREBY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN ANY WAY CONCERNED WITH
THIS AGREEMENT OR ANY OF THE AGREEMENTS, INSTRUMENTS OR DOCUMENTS CONTEMPLATED
HEREBY. NO PARTY HERETO, NOR ANY ASSIGNEE OR SUCCESSOR OF A PARTY HERETO, SHALL
SEEK A JURY TRIAL IN ANY LAWSUIT, PROCEEDING, COUNTERCLAIM OR ANY OTHER
LITIGATION PROCEDURE BASED UPON, OR ARISING OUT OF, THIS AGREEMENT OR ANY OF
THE AGREEMENTS, INSTRUMENTS OR DOCUMENTS CONTEMPLATED HEREBY. NO PARTY WILL
SEEK TO CONSOLIDATE ANY SUCH ACTION IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH
ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED. THE
PROVISIONS OR THIS SECTION HAVE BEEN FULLY CONSIDERED BY THE PARTIES HERETO,
AND THE PROVISIONS SHALL BE SUBJECT TO NO EXCEPTIONS. NO PARTY HAS IN ANY WAY
AGREED WITH OR REPRESENTED TO ANY OTHER PARTY THAT THE PROVISIONS OF THIS
SECTION WILL NOT BE FULLY ENFORCED IN ALL INSTANCES.
13.13 Severability. If any provision of this Agreement, as applied to
any party or circumstance, shall be judged by a court of competent jurisdiction
to be void, invalid or unenforceable, the same shall in no way effect any other
provision of this Agreement, the application of any such provision and any
other circumstances or the validity or enforceability of the other provisions
of this Agreement.
13.14 Legal Action. If either Seller or Purchaser shall institute any
legal action to enforce this Agreement or any provision hereof, it is agreed
that the prevailing party shall be entitled to collect reasonable attorneys
fees and costs incurred in
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connection therewith.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the date and year first above
written.
XXXXX FARGO BANK (TEXAS),
NATIONAL ASSOCIATION
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
PURCHASER
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
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SCHEDULE 1.1(a)
Assumed Severance Obligations
1. First Interstate Bancorp Broad-Based Change in Control Severance
Pay Plan.
2. First Interstate Bancorp Middle Management Change in Control
Severance Pay Plan.
3. Xxxxx Fargo & Company Separation Pay Plan, as amended.
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SCHEDULE 3.6(b)
Branches/Real Properties
========================================================================
BRANCH NAME BRANCH ADDRESS CITY LEASE/OWN
------------------------------------------------------------------------
1. Giddings 000 X. Xxxxxx Xxxxxxxx Owned
------------------------------------------------------------------------
2. Marble Falls 000 Xxxxxxx 000 Xxxxxx Xxxxx Owned
------------------------------------------------------------------------
3. Xxxxxx 000 X. Xxxx Xx. Xxxxxx Owned
========================================================================
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SCHEDULE 3.6(b)
FORM OF XXXX OF SALE
XXXX OF SALE, dated as of July 18, 1997, by XXXXX FARGO BANK (TEXAS),
NATIONAL ASSOCIATION, with its principal office located in Houston, Texas
("Seller"), to NBC Bank, N.A., with its principal office located in 000 Xxxx
Xxxxxx, Xxxxx Xxxx, Xxxxx 00000 ("Purchaser"). Capitalized terms not otherwise
defined herein shall have the same meanings as set forth in the Purchase and
Assumption Agreement, dated as of March 10, 1997 (the "P&A Agreement"), between
Seller and Purchaser, unless the context herein otherwise requires.
W I T N E S S E T H
WHEREAS, subject to the terms and conditions set forth in the P&A
Agreement, Seller has agreed to transfer to Purchaser the Assets;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller does hereby convey, grant,
bargain, sell, transfer, set over, assign, alienate, remise, release, deliver
and confirm unto Purchaser, its successors and assigns, forever, all of
Seller's right, title, interest and claim in and to the Personal Property
(including, without limitation, the items described in Attachment A hereto), as
of 11:59 P.M., California time, the day prior to the date hereof.
TO HAVE AND TO HOLD all and singular of the foregoing (the "Transferred
Properties") unto Purchaser, its successors and assigns, to its and their own
use and enjoyment forever.
SELLER FURTHER COVENANTS AND AGREES AS FOLLOWS:
1. This instrument shall not constitute an assignment of any
covenant, obligation, liability, contract, agreement, license, lease or
commitment pertaining to the Transferred Properties if an attempted assignment
thereof without the consent of any other party thereto or with an interest
therein would constitute a breach thereof or would materially and adversely
affect the rights of Seller thereunder. If any such consent is not obtained
with respect to any such covenant, obligation. liability, contract. agreement,
license, lease or commitment, or if an attempted assignment with respect
thereto would be ineffective or world impair the rights of Seller thereunder so
that Purchaser would not in fact receive the benefit of all such rights, then
Seller, its successors and assigns, shall act as Purchaser's agent in order to
obtain for Purchaser, its successors and assigns, the benefits thereunder, and
Seller will cooperate with Purchaser in any other reasonable arrangement
designed to provide such benefits for Purchaser.
53
2. The Transferred Properties are being delivered "AS IS", "WHERE
IS" and with all faults.
3. From time to time, Seller, its successor and assigns, shall
execute and deliver all such further bills of sale. assignments or other
instruments of conveyance and transfer as Purchaser, its successors or assigns,
may reasonably request more effectively to transfer to and vest in Purchaser
all of Seller's interest in the Transferred Properties.
4. This Xxxx of Sale is made pursuant to the provisions of the P&A
Agreement, and, except as herein otherwise provided, the transfer of property
thereunder is made subject to the terms and provisions of the P&A Agreement.
5. This Agreement shall be governed by and interpreted in accordance
with the laws of the State of California applicable to contracts made and to be
performed entirely within such State.
IN WITNESS WHEREOF, Seller has duly executed and delivered this Xxxx of
Sale as of the day and year first above written.
XXXXX FARGO BANK (TEXAS), NATIONAL
ASSOCIATION
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President
PURCHASER:
By: /s/ R. Xxxxxx Xxxx
-----------------------------
Name: R. Xxxxxx Xxxx
Title: President & CEO
2
54
XXXX OF SALE
XXXX OF SALE, dated as of July 18, 1997, by XXXXX FARGO BANK (TEXAS),
NATIONAL ASSOCIATION ("Seller"), to NBC BANK - ROCKDALE, with its principal
office located in Rockdale, Texas ("Purchaser"). Capitalized terms not
otherwise defined herein shall have the same meanings as set forth in the
Purchase and Assumption Agreement, dated as of March 10, 1997 (the "P&A
Agreement"), between Seller and Purchaser, unless the context herein otherwise
requires.
WITNESSETH:
WHEREAS, subject to the terms and conditions set forth in the P&A
Agreement, Seller has agreed to transfer to Purchaser the Assets;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller does hereby convey, grant.
bargain, sell, transfer, set over, assign, alienate, remise, release, deliver
and confirm unto Purchaser, its successors and assigns, forever, all of
Seller's right, title, interest and claim in and to the Personal Property, as
of 11:59 P.M., California time, the date hereof.
TO HAVE AND TO HOLD all and singular of the foregoing (the "Transferred
Properties") unto Purchaser, its successors and assigns, to its and their own
use and enjoyment forever.
SELLER FURTHER COVENANTS AND AGREES AS FOLLOWS:
1. This instrument shall not constitute an assignment of any
covenant, obligation, liability, contract, agreement, license, lease or
commitment pertaining to the Transferred Properties if an attempted assignment
thereof without the consent of any other party thereto or with an interest
therein would constitute a breach thereof or would materially and adversely
affect the rights of Seller thereunder. If any such consent is not obtained
with respect to any such covenant, obligation, liability, contract, agreement,
license, lease or commitment, or if an attempted assignment with respect
thereto would be ineffective or would impair the rights of Seller thereunder so
that Purchaser would not in fact receive the benefit of all such rights, then
Seller, its successors and assigns, shall act as Purchaser's agent in order to
obtain for Purchaser, its successors and assigns, the benefits thereunder, and
Seller will cooperate with Purchaser in any other reasonable arrangement
designed to provide such benefits for Purchaser.
2. The Transferred Properties are being delivered "AS IS", "WHERE
IS" and with all faults, without any warranty of any kind, express or implied,
other than the warranty of title.
3. From time to time, Seller, its successor and assigns,
55
shall execute and deliver all such further bills of sale, assignments or other
instruments of conveyance and transfer as Purchaser, its successors or assigns,
may reasonably request more effectively to transfer to and vest in Purchaser
all of Seller's interest in the Transferred Properties.
4. This Xxxx of Sale is made pursuant to the provisions of the P&A
Agreement, and, except as herein otherwise provided, the transfer of property
hereunder is made subject to the terms and provisions of the P&A Agreement.
5. This Agreement shall be governed by and interpreted in accordance
with the laws of the State of California applicable to contracts made and to be
performed entirely within such State.
IN WITNESS WHEREOF, Seller has duly executed and delivered this Xxxx of
Sale as of the day and year first above written.
XXXXX FARGO BANK (TEXAS), NATIONAL
ASSOCIATION
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President
NBC BANK - ROCKDALE
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
2
56
2. The Transferred Properties are being, delivered "AS IS","WHERE
IS" and with all faults.
3. From time to time, Seller, its successor and assigns, shall
execute and deliver all such further bills of sale, assignments or other
instruments of conveyance and transfer as Purchaser, its successors or assigns,
may reasonably request more effectively to transfer to and vest in Purchaser
all of Seller's interest in the Transferred Properties.
4. This Xxxx of Sale is made pursuant to the provisions of the P&A
Agreement, and, except as herein otherwise provided, the transfer of property
hereunder is made subject to the terms and provisions of the P&A Agreement.
5. This Agreement shall be governed by and interpreted in accordance
with the laws of the State of California applicable to contracts made and to be
performed entirely within such State.
IN WITNESS WHEREOF, Seller has duly executed and delivered this Xxxx of
Sale as of the day and year first above written.
XXXXX FARGO BANK (TEXAS), NATIONAL
ASSOCIATION
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
PURCHASER
By: /s/ Xxxxx Xxxxxx
----------------------------------
Name: Xxxxx Xxxxxx
Title: President and CEO
3
57
Attachment A
Personal Property
[To be provided]
58
ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT, dated as of July 18, 1997 (this
"Agreement"), between XXXXX FARGO BANK (TEXAS), NATIONAL ASSOCIATION, organized
under the laws of the United States and NBC BANK, N.A., with its principal
office located in Eagle Pass, Texas ("Purchaser"). Capitalized terms not
otherwise defined herein shall have the meanings set forth in the Purchase and
Assumption Agreement, dated as of March 10, 1997 (the "P&A Agreement"), between
Seller and Purchaser, unless the context herein otherwise requires.
WITNESSETH:
WHEREAS, subject to the terms and conditions set forth in the P&A
Agreement, Seller has agreed to assign, and Purchaser has agreed to assume, the
Liabilities;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Seller hereby sells, assigns, conveys, transfers and delivers,
and Purchaser assumes, without warranty or representation, express or implied.
or recourse to, Seller, except as expressly provided in the P&A Agreement, the
Liabilities, other than the Branch Lease, as set forth in the P&A Agreement.
2. Seller hereby (a) resigns as the trustee or custodian of each
Deposit in an XXX of which it is the trustee or custodian, and (b) to the
extent permitted by the documentation governing such XXX, appoints Purchaser as
successor trustee or custodian of each such XXX, and Purchaser hereby accepts
each such trusteeship or custodianship and assumes all fiduciary obligations
with respect thereto.
3. This Agreement shall not constitute an assignment or assumption
of any covenant, fiduciary or other obligation, liability, contract, agreement,
license, lease or commitment pertaining to any Liability if an attempted
assignment or assumption thereof without the consent of any other party thereto
or with an interest therein would constitute a breach thereof or would
materially and adversely affect the rights of Seller thereunder. If any such
consent is not obtained with respect to any such covenant, fiduciary or other
obligation, liability, contract, agreement, license, lease or commitment, or if
an attempted assignment or assumption of any covenant, fiduciary or other
obligation, liability, contract, agreement, license, lease or commitment
pertaining to any Liability would be ineffective or would impair the rights of
Seller thereunder so that Purchaser would not in fact receive the benefit of
all such rights, then Seller, its successors and assigns shall act as
Purchaser's agent
59
in order to obtain for Purchaser, its successors and assigns, the benefits
thereunder, and Seller will cooperate with Purchaser in any other reasonable
arrangement designed to provide such benefits for Purchaser.
4. This Agreement and all of the provisions hereof shall be binding
upon and inure to the benefit of the parties hereto and their respective
permitted successors and permitted assigns; provided, that neither this
Agreement nor any of the rights, interests or obligations of either party may
be assigned by either party hereto without the prior written consent of the
other party, and any purported assignment in contradiction of this Section 4
shall be void.
5. This Agreement is made pursuant to the provisions of the P&A
Agreement and, except as herein otherwise provided, the assignment and
assumption of any other Liabilities hereunder are made subject to the terms and
provisions of the P&A Agreement.
6. Except as otherwise provided herein, all of the transactions
provided for herein shall be effective as of 11:59 p.m., California time, the
date hereof.
7. This Agreement shall be governed by and interpreted in accordance
with the laws of the State of California applicable to contracts made and to be
performed entirely within such State.
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Agreement as of the day and year first above written.
XXXXX FARGO BANK (TEXAS), NATIONAL
ASSOCIATION
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President
NBC BANK, N.A.
By: /s/ R. Xxxxxx Xxxx
-------------------------------
Name: R. Xxxxxx Xxxx
Title: President & CE0
2
60
4. This Agreement and all of the provisions hereof shall be binding
upon and inure to the benefit of the parties hereto and their respective
permitted successors and permitted assigns; provided, that neither this
Agreement nor any of the rights, interests or obligations of either party may
be assigned by either party hereto without the prior written consent of the
other party, and any purported assignment in contradiction of this Section 4
shall be void.
5. This Agreement is made pursuant to the provisions of the P&A
Agreement and, except as herein otherwise provided, the assignment and
assumption of any other Liabilities hereunder are made subject to the terms and
provisions of the P&A Agreement.
6. Except as otherwise provided herein, all of the transactions
provided for herein shall be effective as of 11:59 p.m., California time, the
date hereof.
7. This Agreement shall be governed by and interpreted in accordance
with the laws of the State of California applicable to contracts made and to be
performed entirely within such State.
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Agreement as of the day and year first above written.
XXXXX FARGO BANK (TEXAS), NATIONAL
ASSOCIATION
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
NBC BANK - ROCKDALE
By: /s/ Xxxxx Xxxxxx
----------------------------------
Name: Xxxxx Xxxxxx
Title: President and CEO
3
61
CERTIFICATE OF OFFICER OF
XXXXX FARGO BANK (TEXAS), NATIONAL ASSOCIATION
The undersigned, the Executive Vice President of XXXXX FARGO BANK
(TEXAS), NATIONAL ASSOCIATION, a bank organized under the laws of the United
States of America ("Seller"), hereby certifies, to the best of his knowledge
after reasonable inquiry, as follows:
1. Each of the representations and warranties made by Seller in the
Purchase and Assumption Agreement, dated as of March 10, 1997 (the "P&A
Agreement"), between Seller and NBC BANK, N.A., with its principal office
located in Eagle Pass, Texas, is true in all material respects, as of the date
hereof (except for representations and warranties that are made as of a
specific date).
2. Each of the covenants and agreements of Seller to be performed on
or prior to the date hereof has been duly performed in all material respects.
3. Attached hereto are true and correct copies of the resolutions of
the Seller's Board of Directors, dated as of April 1, 1997, authorizing the
execution, delivery and performance of the transactions contemplated by the P&A
Agreement, which resolutions were duly adopted and, as of the date hereof,
remain in full force and effect without amendment or modification.
IN WITNESS WHEREOF, I have subscribed my name this July 18 , 1997.
XXXXX FARGO BANK (TEXAS), NATIONAL
ASSOCIATION
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President
Attachment: Resolutions of Board of Directors of Xxxxx Fargo Bank (Texas)
4
62
SCHEDULE 3.7(d)
FORM OF CERTIFICATE OF OFFICER
The undersigned, the [title of officer] of NBC Bank-Rockdale, with its
principal office located in Rockdale, Texas, ("Purchaser"), hereby certifies,
to the best of [his] [her] knowledge after reasonable inquiry, as follows:
1. Each of the representations and warranties made by Purchaser in
the Purchase and Assumption Agreement, dated as of March 10, 1997 (the "P&A
Agreement"), between Purchaser and Xxxxx Fargo Bank (Texas), National
Association, organized under the laws of the United States, with its principal
office located in Houston, Texas, are true in all material respects, as of the
date hereof (except for representations and warranties that are made as of a
specific date).
2. Each of the covenants and agreements of Purchaser to be performed
on or prior to the date hereof have been duly performed in all material
respects.
3. Attached hereto are true and correct copies of the resolutions of
the Purchaser's Board of Directors, dated as of April 16, 1997, authorizing the
execution, delivery and performance of the transactions contemplated by the P&A
Agreement, which resolutions were duly adopted and, as of the date hereof,
remain in full force and effect without amendment or modification.
IN WITNESS WHEREOF, I have hereunto subscribed my name this ____ day of
_________________, 1997.
[PURCHASER]:
By: /s/ Xxxxx Xxxxxx
-------------------------------
Name: Xxxxx Xxxxxx
Title: President
63
NBC BANK-Rockdale
Excerpt from the Board of Director's minutes for the Board meeting of NBC Bank-
Rockdale held on April 16, 1997.
Upon a motion made by Xxxxxx Xxxxxx and seconded by X.X. Xxxxx, the following
resolution was unanimously approved by all members present:
Be it hereby resolved, that NBC Bank-Rockdale shall enter into the
Purchase and Assumption Agreement dated March 10, 1997, to acquire the
Giddings and Xxxxxx branches of the Xxxxx Fargo Bank (Texas), National
Association.
We, the undersigned, Xxxxx Xxxxxx, President, and Xxxxxxx X. Xxxxxx, Secretary
to the Board of Directors, of the NBC Bank-Rockdale of the City of Rockdale,
State of Texas, hereby certify that the excerpt set forth herein is true.
NBC Bank-Rockdale
X.X. Xxx 000
Xxxxxxxx, Xxxxx 00000
By: /s/ Xxxxx Xxxxxx
--------------------------------
Xxxxx Xxxxxx, President
Corporate Seal
ATTEST:
/s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxx,
Senior Vice President
Secretary to the Board of Directors
NBC Bank-Rockdale
2
64
SCHEDULE 5.16
Environmental Matters
See Asbestos Reports and Phase I Reports (as updated) previously provided to
Purchaser.
65
SCHEDULE 8.1
Outstanding Tax Liabilities
None.
66
XXXXX FARGO BANK (TEXAS), NATIONAL ASSOCIATION
ASSISTANT SECRETARY'S CERTIFICATE
I, Xxxxxx X. Xxxxxxx, Assistant Secretary of Xxxxx Fargo Bank (Texas),
National Association, a national banking association (the "Bank"), hereby
certify that the resolutions attached as Exhibit A hereto were duly adopted by
the Board of Directors of the Bank by unanimous written consent dated as of
April 1, 1997.
IN WITNESS WHEREOF, I have hereunto set my hand and the seal of the Bank
this 14th day of April, 1997.
/s/ Xxxxxx X. Xxxxxxx
------------------------------
Xxxxxx X. Xxxxxxx
Assistant Secretary
[SEAL]
67
INCUMBENCY CERTIFICATE
XXXXX FARGO BANK (TEXAS), NATIONAL ASSOCIATION
The undersigned, the duly elected and acting [Assistant] Secretary of
XXXXX FARGO BANK (TEXAS), NATIONAL ASSOCIATION, a national bank ("Xxxxx
Fargo"), does hereby certify that set forth below are true and correct specimen
signatures of each and every officer of Xxxxx Fargo who executed a document on
behalf of Xxxxx Fargo delivered on the date hereof in connection with the
transactions contemplated by the Purchase and Assumption Agreement between
Xxxxx Fargo and NBC BANK, N.A., each of whom was duly authorized to execute
such document and has been duly elected to, is qualified for, and is acting in
the capacity of, and on the date hereof does hold, the office set forth
opposite his or her name, and the signature of each such person is genuine.
Name Title Signature
---- ----- ---------
Xxxxx X. Xxxxxxx Executive Vice President /s/ Xxxxx X. Xxxxxxx
----------------------
----------------- ---------------------- ----------------------
IN WITNESS WHEREOF, I have subscribed my name this July 18, 1997.
XXXXX FARGO BANK (TEXAS), NATIONAL
ASSOCIATION
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------
Its: Assistant Secretary
