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Exhibit 10.1
PURCHASE AND ASSUMPTION AGREEMENT
BETWEEN
NATIONSBANK CORPORATION
AND
REPUBLIC BANK
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PURCHASE AND ASSUMPTION AGREEMENT
ARTICLE I - THE ASSETS ..................................................................................................1
Section 1.1. Banking Facilities ...............................................................................1
ARTICLE II - TRANSFER OF ASSETS AND LIABILITIES .........................................................................1
Section 2.1. Transferred Assets ...............................................................................1
Section 2.2. Purchase Price....................................................................................3
Section 2.3. Deposit Liabilities ..............................................................................5
Section 2.4. Loans Transferred ................................................................................7
Section 2.5. Safe Deposit Business ............................................................................9
Section 2.6. Employee Matters ................................................................................10
Section 2.7. Records and Data Processing .....................................................................10
Section 2.8. Security ........................................................................................11
Section 2.9. Taxes and Fees; Proration of Certain Expenses ...................................................11
Section 2.10. Real Property ...................................................................................12
ARTICLE III - CLOSING AND EFFECTIVE TIME ...............................................................................13
Section 3.1. Effective Time ..................................................................................13
Section 3.2. Closing .........................................................................................13
Section 3.3. Post Closing Adjustments ........................................................................16
ARTICLE IV - INDEMNIFICATION ...........................................................................................16
Section 4.1. Seller's Indemnification of Purchaser ...........................................................16
Section 4.2. Purchaser's Indemnification of Seller ...........................................................17
Section 4.3. Claims for Indemnity ............................................................................17
Section 4.4. Limitations on Indemnification ..................................................................17
ARTICLE V - REPRESENTATIONS AND WARRANTIES OF SELLER ...................................................................18
Section 5.1 Corporate Organization ..........................................................................18
Section 5.2 No Violation ....................................................................................18
Section 5.3 Corporate Authority .............................................................................18
Section 5.4 Enforceable Agreement............................................................................18
Section 5.5 No Brokers.......................................................................................18
Section 5.6 Personal Property................................................................................19
Section 5.7 Real Property ...................................................................................19
Section 5.8 Condition of Property ...........................................................................19
Section 5.9 Limitation of Representations and Warranties ....................................................19
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ARTICLE VI - REPRESENTATIONS AND WARRANTIES OF PURCHASER ..............................................................19
Section 6.1. Corporate Organization................................................................................20
Section 6.2. No Violation..........................................................................................20
Section 6.3. Corporate Authority...................................................................................20
Section 6.4. Enforceable Agreement ................................................................................20
Section 6.5. No Brokers ...........................................................................................20
ARTICLE VII - OBLIGATIONS OF PARTIES PRIOR TO AND AFTER EFFECTIVE TIME ...............................................20
Section 7.1. Full Access...........................................................................................20
Section 7.2. Delivery of Magnetic Media Records ...................................................................21
Section 7.3. Application for Approval............................................................................. 21
Section 7.4. Conduct of Business; Maintenance of Properties........................................................21
Section 7.5. No Solicitation by Seller.............................................................................22
Section 7.6. No Solicitation by Purchaser..........................................................................22
Section 7.7. Further Actions ......................................................................................23
Section 7.8. Fees and Expenses.....................................................................................23
Section 7.9. Breaches with Third Parties...........................................................................23
Section 7.10 Insurance ............................................................................................23
Section 7.11. Public Announcements..................................................................................23
Section 7.12. Tax Reporting.........................................................................................23
Section 7.13. REIT Participations...................................................................................24
ARTICLE VIII - CONDITIONS TO PURCHASER'S OBLIGATIONS ...................................................................24
Section 8.1. Representations and Warranties True...................................................................24
Section 8.2. Obligations Performed.................................................................................24
Section 8.3. No Adverse Litigation.................................................................................24
Section 8.4. Regulatory Approval...................................................................................24
ARTICLE IX - CONDITIONS TO SELLER'S OBLIGATIONS ......................................................................25
Section 9.1. Representations and Warranties True ..................................................................25
Section 9.2. Obligations Performed ................................................................................25
Section 9.3. No Adverse Litigation ................................................................................25
Section 9.4. Regulatory Approval ..................................................................................25
Section 9.5. Xxxxxxx Closing ......................................................................................25
ARTICLE X - TERMINATION ................................................................................................26
Section 10.1. Methods of Termination ...............................................................................26
Section 10.2. Procedure Upon Termination............................................................................26
Section 10.3 Payment of Expenses...................................................................................27
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ARTICLE XI- MISCELLANEOUS PROVISIONS ...........................................................................27
Section 11.1. Completion of Xxxxxxx Transaction. .............................................................27
Section 11.2. Amendment and Modification .....................................................................27
Section 11.3. Waiver or Extension ............................................................................27
Section 11.4. Assignment. ....................................................................................28
Section 11.5. Confidentiality.................................................................................28
Section 11.6. Addresses for Notices, Etc. ....................................................................28
Section 11.7. Counterparts....................................................................................29
Section 11.8. Headings. ......................................................................................29
Section 11.9. Governing Law ..................................................................................29
Section 11.10. Sole Agreement..................................................................................29
Section 11.11. Severability. ..................................................................................29
Section 11.12. Parties In Interest ............................................................................29
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PURCHASE AND ASSUMPTION AGREEMENT
THIS PURCHASE AND ASSUMPTION AGREEMENT (this "Agreement") is entered into as of
December 15, 1997 by and between NATIONSBANK CORPORATION, a bank holding company
having its principal office in Charlotte, North Carolina (the "Seller"), and
REPUBLIC BANK, a Florida state banking corporation, having its principal offices
in St. Petersburg, Florida (the "Purchaser"):
WITNESSETH:
WHEREAS, NationsBank Corporation ("NationsBank") has entered into an Agreement
and Plan of Merger with Xxxxxxx Xxxxx, Inc. ("Xxxxxxx") for the purpose of
acquiring Xxxxxxx and its subsidiaries (the "Xxxxxxx Transaction"); and
WHEREAS, NationsBank and Xxxxxxx through the actions of Seller and certain of
their banking subsidiaries wish to divest themselves of certain assets, deposits
and other liabilities in order to meet a portion of the regulatory requirements
dictated by the Xxxxxxx Transaction; and
WHEREAS, the Purchaser wishes to purchase such assets and assume such
liabilities upon the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and mutual agreements
hereinafter set forth, Seller and Purchaser agree as follows:
ARTICLE I
THE ASSETS
Section 1.1. Banking Facilities.
Purchaser shall purchase from Seller the assets of, and assume the liabilities
assigned to, those branch banking offices identified on Exhibit 1.1 (b) attached
hereto (the "Banking Facilities").
ARTICLE II
TRANSFER OF ASSETS AND LIABILITIES
Section 2.1. Transferred Assets.
(a) As of the Effective Time (as defined in Section 3.1 below) and upon the
terms and conditions set forth herein, Seller will sell, assign,
transfer, convey and deliver to Purchaser, and Purchaser will purchase
from Seller, the following assets at the Banking Facilities except as
otherwise excluded from sale pursuant to the provisions of Subsection
2.1(b) below (the "Transferred Assets"):
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(1) subject to Section 2.10 hereof, all of Seller's transferable
right, title and interest in and to all real estate and
improvements thereon at the Banking Facilities, but not
including any leasehold estates covered by sub-section (3)
below, together with all rights and appurtenances pertaining
thereto (the "Real Property");
(2) the furniture, fixtures, leasehold improvements, equipment and
other tangible personal property located on or affixed to the
Real Property or located at leased Banking Facilities
locations, including any of such items on order at the Closing
but not including any of such items subject to the terms of
any Equipment Leases (the "Personal Property");
(3) all assignable leases affecting the Banking Facilities,
including all leases of real property (the "Real Property
Leases"), and all leases for equipment (the "Equipment
Leases"), and any assignable, stand-alone software licenses
and leases (the "Software Licenses");
(4) all safe deposit contracts and leases for the safe deposit
boxes located at the Banking Facilities as of the Effective
Time (the "Safe Deposit Contracts");
(5) all Loans transferred pursuant to Section 2.4; and
(6) all coins and currency located at the Banking Facilities as of
the Effective Time (the "Coins and Currency").
(b) Excluded from the assets, properties and rights being transferred,
conveyed and assigned to Purchaser under this Agreement are (1) the
assets listed on Exhibit 2.l(b) hereto, (2) Seller's rights in and to
the names "NationsBank" and "Xxxxxxx" and any of their predecessor
banks' names and any of NationsBank's or Seller's predecessors'
corporate logos, trademarks, trade names, signs, paper stock, forms and
other supplies containing any such logos, trademarks or trade names,
(3) residential mortgage servicing rights for 1-4 family residential
mortgage loans at the Banking Facilities if Seller is a Xxxxxxx
subsidiary, (4) licenses and permits, (5) trust, brokerage, mutual fund
and similar relationships and (6) proprietary NationsBank or Xxxxxxx
software (the "Excluded Assets"). Seller shall coordinate with
Purchaser to remove the Excluded Assets from the Banking Facilities on
or prior to the Effective Time. Seller shall remove the Excluded Assets
at its own cost and, apart from making any repairs necessitated by
Seller's negligence in removing the Excluded Assets, Seller shall be
under no obligation to restore the premises to their original
condition, which shall be the responsibility of Purchaser.
(c) Notwithstanding anything to the contrary contained in this Agreement,
all RMMS (as defined below) data and information and any copies or
extracts thereof or other data or analyses derived therefrom, and all
internal reports and data relating to, containing or derived from the
operating results of Xxxxxxx and its affiliates or any subsidiary or
division or line of business thereof, whether contained in books,
records or other paper format, accessed through the computer and data
processing systems of Xxxxxxx and its affiliates, or otherwise in the
possession of Xxxxxxx or the Seller, shall remain solely the property
of Seller, and nothing
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contained in this Agreement shall be construed as transferring to or
vesting in the Purchaser or any of Purchaser's affiliates any right or
interest in or to such data and information or to grant to the
Purchaser any ongoing rights to the use of the RMMS or data derived
therefrom. Purchaser acknowledges that Seller shall be entitled to take
all such steps prior to or following the Closing as shall be necessary
in Seller's sole discretion to effect the foregoing, including taking
such actions as are necessary to ensure that all access to such
information at the offices of the Seller shall be terminated as of the
Closing. Purchaser shall promptly return to Seller any such information
or data described herein, which remains at any facilities transferred
hereunder following the Closing.
For purposes of this Agreement, the term "RMMS" means the Retail Market
Management System, a proprietary strategic and marketing system of Xxxxxxx which
combines customer transaction, balance and demographic data with a proprietary
analytic methodology to produce specific customer and market management tools.
These management tools include but are not limited to market potential models,
customer profitability analysis, market segmentation analysis and customer
activity analysis.
Section 2.2. Purchase Price.
(a) As consideration for the purchase of the Banking Facilities, Purchaser
shall pay a purchase price equal to the sum of the following:
(1) The Net Book Value (as defined in Section 2.2(d) hereof) of
the Personal Property and the real estate and improvements
(including leasehold improvements) at the Banking Facilities
on the Closing Date plus $5,460,000;
(2) A premium for the Deposit Liabilities (as defined in Section
2.3(a) hereof) and franchise value assigned to the Banking
Facilities equal to 12.13% of the Deposit Liabilities;
(3) The Net Book Value (as defined in Section 2.2(d) hereof) of
the Loans as set forth in Section 2.4 hereof on the Closing
Date plus a premium for the Loans equal to 2.81% of the Net
Book Value of the Loans; and
(4) The face amount of the Coins and Currency.
(b) In addition, Purchaser shall assume, as of the Effective Time, all of
the duties, obligations and liabilities of Seller relating to the Real
Property, the Real Property Leases, the Equipment Leases, the Software
Licenses, the Safe Deposit Contracts, the Deposit Liabilities
(including all accrued interest relating thereto) and all other
assignable operating contracts of the Banking Facilities.
(c) Seller shall prepare a balance sheet (the "Pre-Closing Balance Sheet")
in accordance with generally accepted accounting principles
consistently applied as of a date not earlier than 30 calendar days
prior to the Effective Time anticipated by the parties (the
"Pre-Closing Balance
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Sheet Date") reflecting the assets to be sold and assigned hereunder
and the liabilities to be transferred and assumed hereunder all based
on the book value of such assets and liabilities; Seller agrees to pay
to Purchaser at the Closing (as defined in Section 3.1 hereof), in
immediately available funds, the excess amount, if any, of the amount
of Deposit Liabilities assumed by Purchaser pursuant to subsection (b)
above as reflected by the Pre-Closing Balance Sheet over the aggregate
purchase price computed in accordance with subsection (a) above, as
reflected by the Pre-Closing Balance Sheet. Purchaser agrees to pay
Seller at the Closing, in immediately available funds, the excess, if
any, of the aggregate purchase price computed in accordance with
subsection (a) above, as reflected by the Pre-Closing Balance Sheet
over the amount of Deposit Liabilities assumed by Purchaser pursuant to
subsection (b) above as reflected by the Pre-Closing Balance Sheet.
Amounts paid at Closing shall be subject to subsequent adjustment based
on the Post-Closing Balance Sheet (as defined in Section 3.3 hereof).
(d) With regard to Personal Property and Real Property, Net Book Value is
the value that the asset is carried on Seller's general ledger. With
regard to Loans, Net Book Value is the aggregate principal amount of
the Loans, plus accrued and unpaid interest and late charges thereon,
but such value shall not include any loan loss reserves or general
reserve.
(e) (1) Seller and Purchaser agree to allocate the purchase price in
accordance with Section 1060 of the Internal Revenue Code (the "Code").
Within 120 days after the Closing Date, Purchaser shall provide to
Seller Purchaser's proposed allocation of the purchase price as finally
determined and paid by Purchaser hereunder. Within 30 days after the
receipt of such allocation, Seller shall propose to Purchaser any
changes to such allocation or otherwise shall be deemed to have agreed
with such allocation.
(2) Seller and Purchaser shall reduce such allocation to writing,
including jointly and properly executing completed Internal Revenue
Service Form 8594, and any other forms or statements required by the
Code, Treasury Regulations or the Internal Revenue Service, together
with any and all attachments required to be filed therewith. Seller and
Purchaser shall file timely any such forms and statements with the
Internal Revenue Service.
(3) To the extent consistent with applicable law, Seller and Purchaser
shall not file any tax return or other documents or otherwise take any
position with respect to taxes which is inconsistent with such
allocation of the final purchase price, provided, however, that neither
Seller nor Purchaser shall be obligated to litigate any challenge to
such allocation of the final purchase price by a governmental
authority.
(4) Seller and Purchaser shall promptly inform one another of any
challenge by any governmental authority to any allocation made pursuant
to this subsection and agree to consult with and keep one another
informed with respect to the state of, and any discussion, proposal or
submission with respect to, such challenge.
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Section 2.3. Deposit Liabilities.
(a) "Deposit Liabilities" shall mean all of Seller's duties, obligations
and liabilities relating to the deposit accounts assigned to the
Banking Facilities as of the Effective Time (including accrued but
unpaid or uncredited interest thereon).
(b) Except for those liabilities and obligations specifically assumed by
Purchaser under 2.2(b) above, Purchaser are not assuming any other
liabilities or obligations. Liabilities not assumed include, but are
not limited to, the following:
(1) Seller's cashier checks, letters of credit, money orders,
traveler's checks, interest checks and expense checks issued
prior to closing, consignments of U.S. Government "E" and
"EE" bonds and any cash items paid by Seller and not cleared
prior to the Effective Time.
(2) Liabilities or obligations with respect to any litigation,
suits, claims, demands or governmental proceedings arising,
commenced or made known to Seller prior to Closing and related
to the Banking Facilities.
(3) Deposit accounts associated with or securing lines of credit
where the line of credit is excluded in accordance with
Section 2.4(b).
(4) Deposit accounts with Seller's group banking program, if any.
(5) Self-directed individual retirement accounts, if any, as well
as those individual retirement accounts which, by their terms,
are not subject to assignment, it being understood that all
other types of XXX Deposit Liabilities are intended to be
transferred.
(6) Any and all obligations arising under any service agreements
entered into between Seller or Xxxxxxx and their subsidiaries.
(7) Deposit accounts associated with qualified retirement plans
where Seller is the trustee of such plan or the sponsor of a
prototype plan used by such plan.
(c) Seller does not represent or warrant that any deposit customers whose
accounts are assumed by Purchaser will become or continue to be
customers of Purchaser after the Effective Time.
(d) Purchaser agrees to pay in accordance with law and customary banking
practices all properly drawn and presented checks, drafts and
withdrawal orders presented to Purchaser by mail, over the counter or
through the check clearing system of the banking industry, by
depositors of the accounts assumed, whether drawn on the checks,
withdrawal or draft forms provided by Seller or by Purchaser, and in
all other respects to discharge, in the usual course of the banking
business, the duties and obligations of Seller with respect to the
balances due and owing to the depositors whose accounts are assumed by
Purchaser.
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(e) If, after the Effective Time, any depositor, instead of accepting the
obligation of Purchaser to pay the Deposit Liabilities assumed, shall
demand payment from Seller for all or any part of any such assumed
Deposit Liabilities, Seller shall not be liable or responsible for
making any such payment; provided, that if Seller shall pay the same,
Purchaser agrees to reimburse Seller for any such payments, and Seller
shall not be deemed to have made any representations or warranties to
Purchaser with respect to any such checks, drafts or withdrawal orders
and any such representations or warranties implied by law are hereby
expressly disclaimed. Seller and Purchaser shall make arrangements to
provide for the daily settlement with immediately available funds by
Purchaser of checks, drafts, withdrawal orders, returns and other items
presented to and paid by Seller within 90 calendar days after the
Effective Time and drawn on or chargeable to accounts that have been
assumed by Purchaser; provided, however, that Seller shall be held
harmless and indemnified by Purchaser for acting in accordance with
such arrangements.
(f) Purchaser agrees, at its cost and expense, (1) to assign new account
numbers to depositors of assumed Deposit Liabilities, (2) to notify
such depositors, on or before the Effective Time, in a form and on a
date mutually acceptable to Seller and Purchaser, of Purchaser
assumption of Deposit Liabilities, (3) to furnish such depositors with
checks on the forms of Purchaser and with instructions to utilize
Purchaser's checks and to destroy unused check, draft and withdrawal
order forms of Seller (If Purchaser so elect, Purchaser may offer to
buy from such depositors their unused Seller's check, draft and
withdrawal order forms.), (4) to reissue all ATM and debit cards (with
new PIN numbers) associated with the depositors of assumed Deposit
Liabilities, (5) to replace all line of credit checks with checks on
the forms of Purchaser with instructions to utilize Purchaser's checks
and to destroy the unused checks and (6) to disable and to notify
customers of its disabling of all credit card overdraft protection. In
addition, subsequent to regulatory approval, Seller will notify its
affected customers by letter of the pending assignment of Seller's
Deposit Liabilities to Purchaser, which notice shall be at Seller's
cost and expense and shall be in a form mutually agreeable to Seller
and Purchaser.
(g) Purchaser agrees to pay promptly to Seller an amount equivalent to the
amount of any checks, drafts or withdrawal orders credited to any
assumed Deposit Liabilities as of the Effective Time that are returned
to Seller after the Effective Time.
(h) As of the Effective Time, Purchaser will assume and pay the Deposit
Liabilities and assume and discharge all of Seller's duties and
obligations in accordance with the terms and conditions and laws, rules
and regulations that apply to the certificates, accounts and other
Deposit Liabilities assumed under this Agreement.
(i) As of the Effective Time, Purchaser will maintain and safeguard in
accordance with applicable law and sound banking practices all account
documents, deposit contracts, signature cards, deposit slips, canceled
items and other records related to the Deposit Liabilities assumed
under this Agreement, subject to Seller's right of access to such
records as provided in this Agreement.
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(j) Seller will render a final statement to each depositor of an account
assumed under this Agreement as to transactions occurring through the
Effective Time and will comply with all laws, rules and regulations
regarding tax reporting of transactions of such accounts through the
Effective Time; provided, however, that Seller shall not be obligated
to render a final statement on any account not ordinarily receiving
periodic statements in the ordinary course of Seller's business. Seller
will be entitled to impose normal fees and service charges on a
per-item basis, but Seller will not impose periodic fees or blanket
charges in connection with such final statements. Purchaser will comply
with all laws, rules and regulations regarding tax reporting of
transactions of such accounts after the Effective Time.
(k) Prior to the Closing Date, Purchaser, at its expense, will notify all
Automated Clearing House ("ACH") originators of the transfers and
assumptions made pursuant to the Agreement; provided, however, that
Seller may, at its option, notify all such originators (on behalf of
Purchaser) also at the expense of Purchaser. For a period of 90
calendar days beginning on the Effective Time, Seller will honor all
ACH items related to accounts assumed under this Agreement which are
mistakenly routed or presented to Seller. Seller will make no charge to
Purchaser for honoring such items, and will electronically transmit
such ACH data to Purchaser. If Purchaser cannot receive an electronic
transmission, Seller will make available to Purchaser at Seller's
operations center receiving items from the Automated Clearing House
tapes containing such ACH data. Items mistakenly routed or presented
after the 90-day period will be returned to the presenting party.
Seller and Purchaser shall make arrangements to provide for the daily
settlement with immediately available funds by Purchaser of any ACH
items honored by Seller, and Seller shall be held harmless and
indemnified by Purchaser for acting in accordance with this arrangement
to accept ACH items.
(l) Following the Effective Time, Purchaser agrees to use its best efforts
to collect from Purchaser customers amounts equal to any Visa or
MasterCard charge backs under the MasterCard and Visa Merchant
Agreements between Seller and its customers or amounts equal to any
deposit items returned to Seller after the Effective Time which were
honored by Seller prior to the Effective Time and remit such amounts so
collected to Seller. Purchaser agrees to immediately freeze and remit
to Seller any funds, up to the amount of the charged back or returned
item that had been previously credited by Seller if such funds are
available at the time of notification by Seller to Purchaser of the
charged back or returned item. Notwithstanding the foregoing, Purchaser
shall have no duty to remit funds for any item or charge that has been
improperly resumed or charged to Seller. Solely for the purposes of
this Section 2.3(i), all references to Seller shall be deemed to
include Seller and its assignees.
Section 2.4. Loans Transferred.
(a) Seller will transfer to Purchaser as of the Effective Time, subject to
the terms and conditions of this Agreement, all of Seller's right,
title and interest in (including collateral relating thereto) loans
maintained, serviced and listed as loans assigned to the Banking
Facilities (collectively, the "Loans"); provided, however, the Loans
shall not include any loans described in subsection (b) below. Such
Loans (as well as any lien or security interest related
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thereto) shall be transferred by means of a blanket (collective)
assignment and not individually (except as may be otherwise required by
law). Purchaser shall inform Seller not less than 45 calendar days
prior to the proposed Closing of any case in which filing information
relating to any collateral for the Loans will be required for
preparation of any assignments of liens.
(b) Notwithstanding the provisions of subsection (a) above, the Loans shall
not include:
(1) nonaccruals (which term shall include loans in which the
collateral securing same has been repossessed or in which
collection efforts have been instituted or claim and delivery
or foreclosure proceedings have been filed);
(2) loans 90 calendar days or more past due;
(3) loans upon which insurance has been force-placed;
(4) credit card loans;
(5) loans in connection with which the borrower has filed a
petition for relief under the United States Bankruptcy Code
prior to the Effective Time;
(6) loans identified by Purchaser in writing within 45 calendar
days or more prior to the Effective Time as not being
purchased because of failure to meet generally applicable
credit standards of Purchaser. In the case of loans made
within 45 calendar days of Closing, Purchaser shall have the
right to review and put back those loans for failure to meet
the credit standards of Purchaser for up to 30 days; or
(7) mortgage servicing rights for 1-4 family residential mortgage
loans if Seller is a Xxxxxxx subsidiary.
(c) Seller and Purchaser agree that Purchaser will become the beneficiary
of credit life insurance written on direct consumer installment loans
and coverage will continue to be the obligation of the current insurer
after the Effective Time and for the duration of such insurance as
provided under the terms of the policy or certificate. If Purchaser
become the beneficiary of credit life insurance written on direct
consumer installment loans, Seller and Purchaser agree to cooperate in
good faith to develop a mutually satisfactory method by which the
current insurer will make rebate payments to and satisfy claims of the
holders of such certificates of insurance after the Effective Time. The
parties obligations in this section are subject to any restrictions
contained in existing insurance contracts as well as applicable laws
and regulations.
(d) In connection with the transfer of any loans requiring notice to the
borrower and the servicer, Purchaser and Seller will comply with all
notice and reporting requirements of the loan documents or of any law
or regulation.
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(e) All Loans will be transferred without recourse and without any
warranties or representations as to their collectibility or the
creditworthiness of any of the obligers of such Loans.
(f) Purchaser will at its expense issue new coupon books or other forms of
payment identification for payment of Loans for which Seller provide
coupon books with instructions to utilize Purchaser coupons or forms
and to destroy coupons furnished by Seller.
(g) For a period of 90 calendar days after the Effective Time, Seller will
forward to Purchaser loan payments received by Seller. Purchaser shall
reimburse Seller upon demand for checks returned on payments forwarded
to Purchaser; however, to the extent possible, Seller will deduct the
amount of such returned checks from payments received and shall settle
with Purchaser by an official check.
(h) As of the Effective Time, Seller shall transfer and assign all files,
documents and records related to the Loans to Purchaser, including such
information held in electronic form, and Purchaser will be responsible
for maintaining and safeguarding all such materials in accordance with
applicable law and sound banking practices.
(i) If the balance due on any Loan purchased pursuant to this Section 2.4
has been reduced by Seller as a result of a payment by check received
prior to the Effective Time, which item is returned after the Effective
Time, the asset value represented by the Loan transferred shall be
correspondingly increased and an amount in cash equal to such increase
shall be paid by Purchaser to Seller promptly upon demand.
(j) Seller shall grant to Purchaser as of the Effective Time a limited
power of attorney, in substantially the form attached hereto as Exhibit
2.4(j)(the "Power of Attorney").
Section 2.5. Safe Deposit Business.
(a) As of the Effective Time, Purchaser will assume and discharge Seller's
obligations with respect to the safe deposit box business at the
Banking Facilities in accordance with the terms and conditions of
contracts or rental agreements related to such business, and Purchaser
will maintain all facilities necessary for the use of such safe deposit
boxes by persons entitled to use them.
(b) As of the Effective Time, Seller shall transfer and assign the records
related to such safe deposit box business to Purchaser, and Purchaser
shall maintain and safeguard all such records and be responsible for
granting access to and protecting the contents of safe deposit boxes at
the Banking Facilities.
(c) Safe deposit box rental payments and late payment fees collected by
Seller before the Effective Time shall not be prorated.
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Section 2.6. Employee Matters.
(a) Subject to Section 11.12 hereof, Purchaser shall offer employment to
all employees employed by Seller at the Banking Facilities as of the
Effective Time (the "Employees"), in their then current functional
positions at each facility with remuneration not less than current
levels (subject to normal salary increases) and benefits generally
equivalent to current levels. Except for Purchaser's defined benefit
pension plan, Employees who become employees of Purchaser shall receive
full credit for their prior service with Seller under Purchaser's
benefit plans and policies, including its vacation and sick leave
policies. As of the Effective Time, the Employees who become employees
of Purchaser and their dependents, if any, previously covered under
Seller's health insurance plan shall be covered under Purchaser's
health insurance plan without being subject to any pre-existing
condition limitations or exclusions except those excluded under
Seller's health insurance plan. Employees who become employees of
Purchaser shall not be required to satisfy the deductible and employee
payments required by Purchaser's comprehensive medical and/or dental
plans for the calendar year of the Effective Time to the extent of
amounts previously credited during such calendar year under comparable
plans maintained by Seller. Employees who become employees of Purchaser
shall receive full credit for their prior service with Seller for
purposes of determining their participation, eligibility and vesting
rights under Purchaser's defined benefit pension plan; benefits under
Purchaser's defined benefit pension plan shall accrue from the first
day of service with Purchaser and shall be based on the number of years
of service with Purchaser.
(b) Seller makes no representations or warranties about whether any of the
Employees who become employees of Purchaser will remain employed at the
Banking Facilities after the Effective Time. Seller will use its best
efforts to maintain the Employees as employees of Seller at the Banking
Facilities until the Effective Time. Any Employee whose employment
shall be terminated for any reason prior to the Effective Time or who
shall elect not to be an employee of Purchaser shall be dealt with by
Seller in its sole and absolute discretion. Seller agrees that, for a
period of 12 months after the Effective Time, it will not solicit for
employment any Employee who remains employed by Purchaser.
(c) Purchaser agrees that for a period of 12 months after the Effective
Time, no Employee will be terminated by Purchaser without paying to
such Employee a severance benefit no less than the applicable severance
benefit set forth in Exhibit 2.6(c).
Section 2.7. Records and Data Processing.
(a) As of the Effective Time, Purchaser shall become responsible for
maintaining the files, documents and records referred to in this
Agreement. Purchaser will preserve and safekeep them as required by
applicable law and sound banking practice for the joint benefit of
Seller and Purchaser. After the Effective Time, Purchaser will permit
Seller and its representatives, for reasonable cause, at reasonable
times and upon reasonable notice, to examine, inspect, copy and
reproduce any such files, documents or records as Seller deem
reasonably necessary and to have similar access to such records and
Seller's former employees for purposes of
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preparation of records and reports (including regulatory and tax
reports and returns) and as required in connection with third party
litigation.
(b) As of the Effective Time, Seller will permit Purchaser and its
representatives, for reasonable cause, at reasonable times and upon
reasonable notice, to examine, inspect, copy and reproduce files,
documents or records retained by Seller regarding the assets and
liabilities transferred under this Agreement (to the extent that such
information is readily available from Seller's records without
incurring any significant expense) as Purchaser deem reasonably
necessary.
(c) For a period of 90 days after the Effective Time, the party providing
copies of records shall do so without charge; thereafter it may charge
its customary rate for such copies.
(d) It is understood that certain of Seller's records, including
certificates of deposit, may be available only in electronic form or in
the form of photocopies, film copies or other non-original and
non-paper media.
Section 2.8. Security.
As of the Effective Time, Purchaser shall be solely responsible for the security
of and insurance on all persons and property located in or about the Banking
Facilities.
Section 2.9. Taxes and Fees; Proration of Certain Expenses.
Purchaser shall be responsible for the payment of all fees and taxes related to
this transaction; except that Purchaser shall not be responsible for, or have
any liability with respect to, taxes on any income to Seller arising out of this
transaction. Purchaser shall not be responsible for any income tax liability of
Seller arising from the business or operations of the Banking Facilities before
the Effective Time, and Seller shall not be responsible for any tax liabilities
of Purchaser arising from the business or operations of the Banking Facilities
after the Effective Time. Utility payments, telephone charges, real property
taxes, personal property taxes, rent, salaries, deposit insurance premiums or
assessments, maintenance items, other ordinary operating expenses of the Banking
Facilities and other expenses related to the liabilities assumed or assets
purchased hereunder shall be prorated between the parties as of the Effective
Time. To the extent any such item has been prepaid by Seller for a period
extending beyond the Effective Time, there shall be a proportionate monetary
adjustment in favor of Seller. The Purchaser shall be responsible for the
payment of any non-delinquent assessments. Real estate taxes shall be pro-rated
at the Closing based upon the maximum allowable discount and other applicable
exemptions, and there shall be no reproration of real estate taxes.
Seller and Purchaser shall each be responsible for its own costs with respect to
the preparation and filing of any tax returns, as well as the preparation,
review and analysis of the allocation statements and any forms or statements
prepared in connection with the final allocation of the purchase price.
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Section 2.10. Real Property.
(a) Title Matters.
(i) Seller agrees to deliver to Purchaser as soon as reasonably
possible upon Purchaser's request copies of all title
information in possession of Seller, including, but not
limited to, title insurance policies, attorneys' opinions on
title, surveys, covenants, deeds and easements relating to the
Real Property. Such delivery shall constitute no warranty by
Seller as to the accuracy or completeness thereof or that
Purchaser is entitled to rely thereon.
(ii) Purchaser agrees to notify Seller, in writing within 45
calendar days after the date of this Agreement of any
mortgages, pledges, material liens, encumbrances,
reservations, tenancies, encroachments, overlaps or other
title exceptions, survey objections, or zoning or similar land
use violations (excluding legal but nonconforming uses)
related to the Real Property to which Purchaser reasonably
objects (the "Title Defects"). If Purchaser does not notify
Seller of Title Defects within the 45 day period, Purchaser
shall be deemed to have waived its rights under this Section
2.10. Purchaser agrees that Title Defects shall not include
real property taxes not yet due and payable or easements,
restrictions, tenancies, survey matters or other title
matters, and rights of way which do not materially interfere
with the use of the Real Property as such facilities are
currently utilized. Seller shall make a good faith effort to
correct any such Title Defect to Purchaser's reasonable
satisfaction at least 10 calendar days prior to Closing;
provided, however, that Seller shall not be obligated to bring
any lawsuit or make any payments of money (except to pay liens
that Seller does not dispute in good faith) to cure a Title
Defect. If Seller is unable or unwilling to cure any such
Title Defects to Purchaser's reasonable satisfaction,
Purchaser shall have the option either to terminate this
Agreement (upon written notice to Seller) with respect to the
Banking Facilities, at which the Real Property having such
Title Defects is located or to receive title in its then
existing condition. Upon termination of this Agreement with
respect to a particular tract of property pursuant to this
Section 2.10, no party shall have any further liability to the
other party under this Agreement with respect to such parcel
of Real Property (or the other Assets or Deposit Liabilities
associated with that facility) and the purchase price shall be
adjusted accordingly.
(b) Environmental Matters.
Purchaser shall have the right to conduct such investigation of
environmental matters with respect to the Real Property as it may
reasonably require and shall report the results of any such
investigation, together with its objections to any material violation
of applicable environmental law which impacts the use of a particular
tract of Real Property as such facilities are currently utilized, to
Seller no later than 45 calendar days after the date of this Agreement;
provided, however, that without the prior written consent of Seller and
execution of a satisfactory property access agreement, Purchaser shall
not conduct subsurface testing, any ground water monitoring or install
any test well or undertake any other investigation which requires a
permit or license from, or the reporting of the investigation or the
results thereof to, a local or state environmental regulatory
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authority or the United States Environmental Protection Agency. If
Purchaser objects to any material violation of applicable environmental
law which impacts the Real Property or its use as a banking facility,
Seller shall have the right, but not the obligation, to cure any such
material violation of law which is discovered by Purchaser's
investigation. If Seller either refuses to give such written consent or
refuses to cure any material violation of applicable environmental law
relating to the Real Property or the use thereof as a banking center,
Purchaser shall have the option either to purchase the Real Property in
its then existing condition or to terminate this Agreement (upon
written notice of Seller) with respect to the Banking Facilities at
which such parcel of Real Property affected by such refusal is located
in which event neither party shall have any further liability to the
other under this Agreement with respect to such Banking Facilities (or
the other Assets or Deposit Liabilities associated with that facility)
and the purchase price shall be adjusted accordingly.
(c) Termination by Seller.
If Purchase elects not to purchase Banking Facilities pursuant to this
Section 2.10, Seller may elect to terminate this Agreement in its
entirety within 10 calendar days after its receipt of Purchaser's
election not to purchase a Banking Facility.
ARTICLE III
CLOSING AND EFFECTIVE TIME
Section 3.1. Effective Time.
The purchase of assets and assumption of liabilities provided for in this
Agreement shall occur at a closing (the "Closing") to be held at the offices of
Seller in Charlotte, North Carolina at 10:00 a.m. local time on a date
designated by Seller within 31 calendar days following the closing of the
Xxxxxxx Transaction and the date of all approvals by regulatory agencies and
after all statutory waiting periods have expired, or at such other place, time
or date on which the parties shall mutually agree. The effective time (the
"Effective Time") shall be 2:00 p.m., local time, on the day on which the
Closing occurs (the "Closing Date").
Section 3.2. Closing.
(a) All actions taken and documents delivered at the Closing shall be
deemed to have been taken and executed simultaneously, and no action
shall be deemed taken nor any document delivered until all have been
taken and delivered.
(b) At the Closing, subject to all the terms and conditions of this
Agreement, Seller shall deliver to Purchaser or, in the case of
subsections (b), (6), (7), (8) and (10), make reasonably available to
Purchaser:
(1) Special warranty deeds executed by the appropriate Seller
transferring Seller's interest in and to each parcel of Real
Property to Purchaser in substantially the form attached
hereto as Exhibit 3.2(b)(1);
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(2) A Xxxx of Sale, in substantially the form attached hereto as
Exhibit 3.2(b)(2) (the "Xxxx of Sale"), transferring to
Purchaser all of Seller's interest in the Personal Property
and in the Loans;
(3) An Assignment and Assumption Agreement, in substantially the
form attached hereto as Exhibit 3.2(b)(3) (the "Assignment and
Assumption Agreement"), assigning Seller's interest in the
Equipment Leases, the Safe Deposit Contracts and the Deposit
Liabilities;
(4) An Assignment and Assumption of Lease, in substantially the
form attached hereto as Exhibit 3.2(b)(4) (the "Assignment and
Assumption of Lease"), assigning Seller's interest in the Real
Property Leases;
(5) Consents from third persons that are required to effect the
assignments set forth in the Assignment and Assumption
Agreement, and in the Assignment and Assumption of Leases;
(6) Seller's keys to the safe deposit boxes and Seller's records
related to the safe deposit box business at the Banking
Facilities;
(7) Seller's files and records related to the Loans;
(8) Seller's records related to the Deposit Liabilities assumed by
Purchaser;
(9) Immediately available funds in the net amount shown as owing
to Purchaser by Seller on the Closing Statement, if any;
(10) The Coins and Currency;
(11) Such of the other assets to be purchased as shall be capable
of physical delivery;
(12) A certificate of a proper officer of each Seller, dated as of
the date of Closing, certifying to the fulfillment of all
conditions which are the obligation of that Seller and that
all of the representations and warranties of such Seller set
forth in this Agreement remain true and correct in all
material respects as of Effective Time;
(13) Copies of (A) the articles of incorporation and bylaws of
Seller and (B) a resolution of the Board of Directors of
Seller, or the Executive Committee of Seller, approving the
sales contemplated herein;
(14) Such certificates and other documents as Purchaser and its
counsel may reasonably require to evidence the receipt by
Seller of all necessary regulatory authorizations and
approvals for the consummation of the transactions provided
for in this Agreement;
(15) A Closing Statement using amounts shown on the Pre-Closing
Balance Sheet, substantially in the form attached hereto as
Exhibit 3.2(b)(15) (the "Closing Statement");
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(16) An affidavit of Seller certifying that Seller is not a
"foreign person" as defined in the federal Foreign Investment
in Real Property Tax Act of 1980;
(17) The Power of Attorney; and
(18) An assignment of the REIT participations by the REIT as an
additional Seller.
It is understood that the items listed in subsections (b)(6)
and (b)(10) shall be transferred after the Banking Facilities
have closed for business on the Closing Date and that the
records listed in subsections (b)(7) and (b)(8) will be
transferred as soon as possible after the Closing, but in no
event more than 30 days after the Closing.
(c) At the Closing, subject to all the terms and conditions of this
Agreement, Purchaser shall deliver to Seller:
(1) The Assignment and Assumption Agreement;
(2) The Assignment and Assumption of Lease;
(3) A certificate and receipt acknowledging the delivery and
receipt of possession of the Assets and records referred to in
this Agreement;
(4) Immediately available funds in the net amount shown as owing
by Purchaser on the Closing Statement, if any;
(5) A certificate of a proper officer of Purchaser, dated as of
the Date of Closing, certifying to the fulfillment of all
conditions which are the obligation of Purchaser and that all
of the representations and warranties of Purchaser set forth
in this Agreement remain true and correct in all material
respects as of the Effective Time;
(6) Copies of (A) the charter and bylaws of the Purchaser and (B)
a resolution of the Board of Directors, or the Executive
Committee, of Purchaser approving the purchases contemplated
herein; and
(7) Such certificates and other documents as Seller and its
counsel may reasonably require to evidence the receipt of
Purchaser of all necessary regulatory authorizations and
approvals for the consummation of the transactions provided
for in this Agreement.
(d) All instruments, agreements and certificates described in this Section
3.2 shall be in form and substance reasonably satisfactory to the
parties' respective legal counsel.
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Section 3.3. Post Closing Adjustments.
(a) Not later than 60 business days after the Effective Time (the
"Post-Closing Balance Sheet Delivery Date"), Seller shall deliver to
Purchaser a balance sheet dated as of the Effective Time and prepared
in accordance with generally accepted accounting principles
consistently applied reflecting the assets sold and assigned and the
liabilities transferred and assumed hereunder (the "Post-Closing
Balance Sheet") together with a copy of Seller's calculation of the
adjusted purchase price and amounts payable thereunder. Additionally,
Seller shall deliver to Purchaser a list of Loans purchased,
individually identified by account number. Seller shall afford
Purchaser and its accountants and attorneys the opportunity to review
all work papers and documentation used by Seller in preparing the
Post-Closing Balance Sheet. Within 15 business days following the
Post-Closing Balance Sheet Delivery Date (the "Adjustment Payment
Date"), Seller and Purchaser shall meet at the offices of Seller in
Charlotte, North Carolina, or such other location as may be mutually
agreed, to effect the transfer of any funds as may be necessary to
reflect changes in such assets and liabilities between the Pre-Closing
Balance Sheet and the Post-Closing Balance Sheet and resulting changes
in the purchase price, together with interest thereon computed from the
Effective Time to the Adjustment Payment Date at the applicable Federal
Funds Rate (as hereinafter defined).
(b) In the event that a dispute arises as to the appropriate amounts to be
paid to either party on the Adjustment Payment Date, each party shall
pay to the other on such Adjustment Payment Date all amounts other than
those as to which a dispute exists. Any disputed amounts retained by a
party which are later found to be due to the other party shall be paid
to such other party promptly upon resolution with interest thereon from
the Effective Time to the date paid at the applicable Federal Funds
Rate.
(c) The Federal Funds Rate shall be the mean of the high and low rates
quoted for Federal Funds in the Money Rates Column of The Wall Street
Journal adjusted as such mean may increase or decrease during the
period between the Effective Time and the date paid.
ARTICLE IV
INDEMNIFICATION
Section 4.1. Seller's Indemnification of Purchaser.
Seller shall indemnify, hold harmless and defend Purchaser from and against any
breach by Seller of any representation or warranty contained herein and all
claims, losses, liabilities, demands and obligations, including reasonable
attorneys' fees and expenses, arising out of any actions, suits or proceedings
commenced prior to the Effective Time (other than proceedings to prevent or
limit the consummation of this transaction) relating to Seller's operations at
the Banking Facilities; and, except as otherwise provided in this Agreement,
Seller shall further indemnify, hold harmless and defend Purchaser from and
against all claims, losses, liabilities, demands and obligations, including
reasonable attorneys' fees and expenses, real estate taxes, intangibles and
franchise taxes, sales and use taxes, social security and unemployment taxes,
all accounts payable and operating expenses (including salaries, rents and
utility charges) incurred by Seller prior to the Effective Time and which are
claimed or demanded on or after the Effective Time, or which
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arise out of any actions, suits or proceedings commenced on or after the
effective time and which relate to Seller's operations at the Banking Facilities
prior to the Effective Time.
Section 4.2. Purchaser's Indemnification of Seller.
Purchaser shall indemnify, hold harmless and defend Seller from and against any
breach by Purchaser of any representation or warranty contained herein and all
claims, losses, liabilities, demands and obligations, including reasonable
attorneys' fees and expenses, real estate taxes, intangibles and franchise
taxes, sales and use taxes, social security and unemployment taxes, all accounts
payable and operating expenses (including salaries, rents and utility charges),
which Seller may receive, suffer or incur in connection with operations and
transactions occurring after the Effective Time and which involve the Banking
Facilities, the Transferred Assets or the liabilities assumed pursuant to this
Agreement.
Section 4.3. Claims for Indemnity.
(a) A claim for indemnity under Sections 4.1 or 4.2 of this Agreement may
be made by the claiming party at any time prior to 12 months after the
Effective Time by the giving of written notice thereof to the other
party. Such written notice shall set forth in reasonable detail the
basis upon which such claim for indemnity is made. In the event that
any such claim is made within such prescribed 12 month period, the
indemnity relating to such claim shall survive until such claim is
resolved. Claims not made within such 12 month period shall cease and
no indemnity shall be made therefor.
(b) In the event that any person or entity not a party to this Agreement
shall make any demand or claim or file or threaten to file any lawsuit,
which demand, claim or lawsuit may result in any liability, damage or
loss to one party hereto of the kind for which such party is entitled
to indemnification pursuant to Section 4.1 or 4.2 hereof, then, after
written notice is provided by the indemnified party to the indemnifying
party of such demand, claim or lawsuit, the indemnifying party shall
have the option, at its cost and expense, to retain counsel for the
indemnified party to defend any such demand, claim or lawsuit. In the
event that the indemnifying party shall fail to respond within five
calendar days alter receipt of such notice of any such demand, claim or
lawsuit, then the indemnified party shall retain counsel and conduct
the defense of such demand, claim or lawsuit as it may in its
discretion deem proper, at the cost and expense of the indemnifying
party. In effecting the settlement of any such demand, claim or
lawsuit, an indemnified party shall act in good faith, shall consult
with the indemnifying party and shall enter into only such settlement
as the indemnifying party shall approve (the indemnifying party's
approval will be implied if it does not respond within ten calendar
days of its receipt of the notice of such settlement offer).
Section 4.4. Limitations on Indemnification.
Notwithstanding anything to the contrary contained in this Article III, no
indemnification shall be required to be made by either party until the aggregate
amount of all such claims by a party exceeds $50,000. Once such aggregate amount
exceeds $50,000, such party shall thereupon be entitled to indemnification for
all amounts in excess of such $50,000. IN ADDITION, THE PARTIES SHALL HAVE NO
OBLIGATIONS UNDER THIS ARTICLE IV FOR ANY CONSEQUENTIAL LIABILITY, DAMAGE
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OR LOSS THE INDEMNIFIED PARTY MAY SUFFER AS THE RESULT OF ANY DEMAND, CLAIM OR
LAWSUIT.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Purchaser as follows, which
representations and warranties shall survive the Effective Time for a period of
12 months except as otherwise specifically herein provided:
Section 5.1. Corporate Organization.
Seller is a bank holding company duly organized, validly existing and in good
standing under the laws of the State of North Carolina. Seller has the corporate
power and authority to carry on its business as currently conducted and to
effect the transactions contemplated herein.
Section 5.2. No Violation.
The Banking Facilities have been operated in all material respects in accordance
with applicable laws, rules and regulations. Neither the execution and delivery
of this Agreement, nor the consummation of the transactions contemplated herein,
will violate or conflict with (a) Seller charter or bylaws; (b) any material
provision of any material agreement or any other material restriction of any
kind to which Seller is a party or by which Seller is bound; (c) any material
statute, law, decree, regulation or order of any governmental authority; or (d)
any material provision which will result in a default under, or which cause the
acceleration of the maturity of, any material obligation or loan to which Seller
is a party.
Section 5.3. Corporate Authority.
Prior to Closing, the consummation of the transactions contemplated herein will
have been duly authorized by the Board of Directors or the Executive Committee
of Seller. No further corporate authorization is necessary for Seller to
consummate the transactions contemplated hereunder.
Section 5.4. Enforceable Agreement.
This Agreement has been duly executed and delivered by Seller and is the legal,
valid and binding agreement of Seller, enforceable in accordance with its terms.
Section 5.5. No Brokers.
All negotiations relative to this Agreement and the transactions contemplated
hereby have been carried on by Seller and Purchaser, and there has been no
participation or intervention by any other person, firm or corporation employed
or engaged by or on behalf of Seller in such a manner as to give rise to any
valid claim against Seller or Purchaser for a brokerage commission, finder's fee
or like commission.
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Section 5.6. Personal Property.
Seller owns, and will convey to Purchaser at the Closing, all of Seller's right,
title and interest to all of the Personal Property free and clear of any
mortgages, liens, security interests or pledges, except as may otherwise be set
forth in this Agreement.
Section 5.7. Real Property.
Seller make the following additional representations regarding the Real
Property:
(a) Except as specifically set forth herein or disclosed to Purchaser
within 30 days after the date of this Agreement, Seller has no
knowledge of any condemnation proceedings pending against the Real
Property.
(b) Except as specifically set forth herein or disclosed to Purchaser in
writing within 30 days after the date of this Agreement, Seller has not
entered into any agreement regarding the Real Property, and the Real
Property is not subject to any claim, demand, suit, lien, proceeding or
litigation of any kind, pending or outstanding, which would materially
affect or limit Purchaser or its successors' or assigns' use and
enjoyment of the Real Property or which would materially limit or
restrict Seller's right or ability to enter into this Agreement and
consummate the sale and purchase contemplated hereby.
(c) Purchaser's sole remedy for a breach of the representations and
warranties in this Section 5.7 shall be to elect not to purchase a
particular Banking Facility, as provided in Section 2.10.
Section 5.8. Condition of Property.
Except as may be otherwise specifically set forth in this Agreement, the Real
Property and Personal Property to be purchased by Purchaser hereunder are sold
as is, where is, with no warranties or representations whatsoever, except as may
be expressly represented or warranted in this Agreement.
Section 5.9. Limitation of Representations and Warranties.
Except as may be expressly represented or warranted in this Agreement, the
Seller is making no other representations or warranties whatsoever with regard
to any asset being transferred to Purchaser or any liability or obligation being
assumed by Purchaser or as to any other matter or thing
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to the Seller as follows, which
representations and warranties shall survive the Effective Time for a period of
12 months except as otherwise specifically herein provided:
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Section 6.1. Corporate Organization.
Purchaser is a state banking corporation, duly organized, validly existing and
in good standing under the laws of State of Florida. Purchaser has the corporate
power and authority to carry on the business being acquired, to assume the
liabilities being transferred, and to effect the transactions contemplated
herein.
Section 6.2. No Violation.
Neither the execution and delivery of this Agreement, nor the consummation of
the transactions contemplated herein, will violate or conflict with (a) the
charter or bylaws of Purchaser; (b) any material provision of any material
agreement or any other material restriction of any kind to which Purchaser is a
party or by which Purchaser is bound; (c) any material statute, law, decree,
regulation or order of any governmental authority; or (d) any material provision
which will result in a default under, or cause the acceleration of the maturity
of, any material obligation or loan to which Purchaser is a party.
Section 6.3. Corporate Authority.
The consummation of the transactions contemplated herein have been duly
authorized by the Board of Directors (or Executive Committee) of the Purchaser.
No further corporate authorization on the part of Purchaser is necessary to
consummate the transactions contemplated hereunder.
Section 6.4. Enforceable Agreement.
This Agreement has been duly executed and delivered by Purchaser and is the
legal, valid and binding agreement of Purchaser enforceable in accordance with
its terms.
Section 6.5. No Brokers.
As negotiations relative to this Agreement and the transactions contemplated
hereby have been carried on by Seller and Purchaser, and there has been no
participation or intervention by any other person, firm or corporation employed
or engaged by or on behalf of Purchaser in such a manner as to give rise to any
valid claim against Seller or Purchaser for a brokerage commission, finder's fee
or like commission.
ARTICLE VII
OBLIGATIONS OF PARTIES PRIOR TO AND AFTER EFFECTIVE TIME
Section 7.1. Full Access.
Seller shall afford to the officers and authorized representatives of
Purchaser, upon prior notice and subject to Seller's normal security
requirements, access to the properties, books and records pertaining to the
Banking Facilities in order that Purchaser may have full opportunity to make
reasonable investigations and to engage in operational planning, at reasonable
times without interfering with the normal business and operations of the
Banking Facilities, or the affairs of Seller relating to the Banking
Facilities. The officers of Seller shall furnish Purchaser with one standard
set of such additional financial and operating data and other information as to
its business and properties at the Banking Facilities, or where otherwise
located,
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as Purchaser may, from time to time, reasonably request and as shall be
available, including, without limitation, information required for inclusion in
all governmental applications necessary to effect this transaction. Any
additional copies of such information shall be produced and provided at
Purchaser's expense. Nothing in this Section 7.1 shall require Seller to breach
any obligation of confidentiality or to reveal any proprietary information,
trade secrets or marketing or strategic plans. Records, including credit
information relating to the Loans, will be made available for review by
Purchaser no later than 30 calendar days after the execution of this Agreement.
It is understood that certain of Seller's records may be available only in the
form of photocopies, film copies or other non-original and non-paper media.
Section 7.2. Delivery of Magnetic Media Records.
Seller shall prepare or cause to be prepared at its expense and make available
to Purchaser at Seller's data processing center or other reasonably convenient
location magnetic media records in Seller field format not later than 60
calendar days after the execution of this Agreement and further shall make
available to Purchaser such records updated as of the Closing Date, which
records shall contain the information related to the items described in
Subsections 3.2(b)(6), (b)(7) and (b)(8) above. Such updated records shall be
made available at such time after Closing as agreed to by the parties. At its
option, Seller may provide such reports in paper format instead of magnetic
media format.
Section 7.3. Application for Approval.
Within 30 calendar days following the execution of this Agreement, Purchaser
shall prepare and file applications required by law with the appropriate
regulatory authorities for approval to purchase and assume the aforesaid assets
and liabilities, to establish branches at the locations of the Banking
Facilities, and to effect in all other respects the transactions contemplated
herein. Purchaser agrees to process such applications in a diligent manner and
on a priority basis and to provide Seller promptly with a copy of such
applications as filed (except for any confidential portions thereof) and all
material notices, orders, opinions, correspondence and other documents with
respect thereto, and to use its best efforts to obtain all necessary regulatory
approvals. On the date hereof, Purchaser knows of no reason why such
applications should not receive all such approvals. Purchaser shall promptly
notify Seller upon receipt by Purchaser of notification that any application
provided for hereunder has been accepted or denied. Seller shall provide such
assistance and information to Purchaser as shall be reasonably necessary for
Purchaser to comply with the requirements of the applicable regulatory
authorities.
Section 7.4. Conduct of Business; Maintenance of Properties.
From the date hereof until the Effective Time, Seller covenants that it will:
(a) Carry on, or cause to be carried on, the business of the Banking
Facilities substantially in the same manner as on the date hereof, use
all reasonable efforts to preserve intact its current business
organization and preserve its business relationships with depositors,
customers and others having business relationships with it and whose
accounts will be retained at the Banking Facilities; provided, however,
that Seller need not, in its sole discretion, advertise or promote new
or substantially new customer services in the principal market area of
the Banking Facilities;
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(b) Cooperate with and assist Purchaser in assuring the orderly transition
of the business of the Banking Facilities to Purchaser from Seller; and
(c) Maintain the Real Property and the Personal Property in its current
condition, ordinary wear and tear excepted.
Section 7.5. No Solicitation by Seller.
For a period of 12 months after the Effective Time, Seller will not specifically
target and solicit customers assigned to the Banking Facilities utilizing any
customer or mailing list which consists primarily of such customers; provided,
however, these restrictions shall not restrict general mass mailings,
telemarketing calls, statement stuffers and other similar communications
directed to all the current customers of Seller or Seller's affiliates, or to
the public or newspaper, radio or television advertisements of a general nature
or otherwise prevent Seller from taking such actions as may be required to
comply with any applicable federal or state laws, rules or regulations. In
addition, these restrictions shall not restrict (a) the solicitation of (i)
customers whose accounts are normally established or maintained in offices other
than the Banking Facilities, (ii) any credit or debit card customer of Seller
with regard to such card products, or (iii) any customer which has an agreement
for merchant services with Seller or Seller's affiliates, including its venture
partners (including Unified Merchant Services) for merchant services; (b) the
ability of Seller to install, operate and serve customers' needs through
automated teller machines at any location; or (c) the solicitation of customers
whose accounts are excluded by either Purchaser or Seller from the transactions
contemplated by this Agreement.
Section 7.6. No Solicitation by Purchaser.
Purchaser shall not solicit any customer which, at the date hereof, (i) has a
credit card account with Seller for credit card products or (ii) has an
agreement with Seller or Seller's venture partner, Unified Merchant Services,
for the processing of customer's credit and debit card transactions and other
similar merchant services (said customers herein referred to as "Merchants")
during the term of any such agreements, including any renewal term thereunder,
or otherwise interfere in any way with Seller or Seller's venture partner,
Unified Merchant Services, relationship with any such Merchant. Notwithstanding
the foregoing, Purchaser may at times, or from time to time may solicit such
Merchants in Purchaser market area as part of Purchaser general direct marketing
program, or by general solicitations such as newspaper, radio and television
advertisements, as long as the Merchants as a group are not targeted for
solicitation. Purchaser shall be in compliance with the restrictions contained
above provided that (i) before mailing or telephoning, Purchaser uses its record
of Merchants to eliminate those Merchants from any mailing or telephone
solicitation list of potential customers that comes into Purchaser control and
from any mailing or telephone solicitation list that is screened by a credit
bureau at Purchaser direction, directly or indirectly, and (ii) Purchaser does
not otherwise intentionally direct any mailing or telephone solicitation or such
Merchants or any substantial portion thereof.
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Section 7.7. Further Actions.
The parties hereto shall execute and deliver such instruments and take such
other actions as the other party may reasonably require in order to carry out
the intent of this Agreement.
Section 7.8. Fees and Expenses.
Purchaser shall be responsible for the costs of all title examinations, title
insurance fees, surveys, environmental investigation costs, its own attorneys'
and accountants' fees and expenses, software license and transfer fees,
recording costs, transfer fees, sales and use and other transfer taxes,
documentary stamps, and similar charges assessed upon deeds and assignments of
leases, regulatory applications and other expenses arising in connection
therewith as well as all costs and expenses associated with the transfer or
perfection of any security interests or liens securing Loans transferred
hereunder. Seller shall be responsible for its own attorneys' and accountants'
fees and expenses related to this transaction.
Section 7.9. Breaches with Third Parties.
If the assignment of any material claim, contract, license, lease, commitment,
sales order or purchase order (or any material claim or right or any benefit
arising thereunder) without the consent of a third party would constitute a
breach thereof or materially affect the rights of Purchaser or Seller
thereunder, then such assignment is hereby made subject to such consent or
approval being obtained.
Section 7.10. Insurance.
As of the Effective Time, Seller will discontinue its insurance coverage
maintained in connection with the Banking Facilities and the activities
conducted thereon. Purchaser shall be responsible for all insurance protection
for the Banking Facilities' premises and the activities conducted thereon
immediately following the Effective Time. Pending the Closing, risk of loss
shall be the responsibility of Seller.
Section 7.11. Public Announcements.
Seller and Purchaser agree that, from the date hereof, neither shall make any
public announcement or public comment, regarding this Agreement or the
transactions contemplated herein without first consulting with the other party
hereto and reaching an agreement upon the substance and timing of such
announcement or comment. Further, Seller and Purchaser acknowledge the
sensitivity of this transaction to the Employees and no announcements or
communications with the public or the Employees shall be made without the prior
approval of Seller until the Effective Time.
Section 7.12. Tax Reporting.
Seller shall comply with all tax reporting obligations in connection with
transferred assets and liabilities on or before the Effective Time, and
Purchaser shall comply with all tax reporting obligations with respect to the
transferred assets and liabilities after the Effective Time.
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Section 7.13. REIT Participations.
Xxxxxxx and its banking subsidiaries have previously contributed a 100%
participation interest in certain 1-4 family residential Loans (the "REIT
Loans") to Xxxxxxx Real Estate Management, Inc. (the "REIT"). The Seller
undertakes to cause the REIT to sell any such participations and to include the
participations in the Loans transferred hereunder. To the extent that
participations are sold, Seller and the REIT will furnish Purchaser with
instructions on that portion of the purchase price to be paid to the REIT for
such participations.
ARTICLE VIII
CONDITIONS TO PURCHASER'S OBLIGATIONS
The obligation of Purchaser to complete the transactions contemplated in this
Agreement are conditioned upon fulfillment, on or before the Closing, of each of
the following conditions:
Section 8.1. Representations and Warranties True.
The representations and warranties made by Seller in this Agreement shall be
true in all material respects on and as of the Effective Time as though such
representations and warranties were made at and as of such time, except for any
changes permitted by the terms hereof or consented to by Purchaser.
Section 8.2. Obligations Performed.
Seller shall (a) deliver or make available to Purchaser those items required by
Section 3.2 hereof, and (b) perform and comply in all material respects with all
obligations and agreements required by this Agreement to be performed or
complied with by it prior to or on the Effective Time.
Section 8.3. No Adverse Litigation.
As of the Effective Time, no action, suit or proceeding shall be pending or
threatened against Seller which is reasonably likely to (a) materially and
adversely affect the business, properties and assets of the Banking Facilities,
or (b) materially and adversely affect the transactions contemplated herein.
Section 8.4. Regulatory Approval.
(a) Purchaser shall have received all necessary regulatory approvals of the
transactions provided in this Agreement, all notice and waiting periods
required by law to pass shall have passed, no proceeding to enjoin,
restrain, prohibit or invalidate such transactions shall have been
instituted or threatened, and any conditions of any regulatory approval
shall have been met.
(b) Such approvals shall not have imposed any condition which is materially
disadvantageous or burdensome to Purchaser.
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29
ARTICLE IX
CONDITIONS TO SELLER'S OBLIGATIONS
The obligation of Seller to complete the transactions contemplated in this
Agreement are conditioned upon fulfillment, on or before the Closing, of each of
the following conditions:
Section 9.1. Representations and Warranties True.
The representations and warranties made by Purchaser in this Agreement shall be
true in all material respects at and as of the Effective Time as though such
representations and warranties were made at and as of such time, except for any
changes permitted by the terms hereof or consented to by Seller.
Section 9.2. Obligations Performed.
Purchaser shall (a) deliver to Seller those items required by Section 3.2
hereof, and (b) perform and comply in all material respects with all obligations
and agreements required by this Agreement to be performed or complied with by it
prior to or on the Effective Time.
Section 9.3. No Adverse Litigation.
As of the Effective Time, no action, suit or proceeding shall be pending or
threatened against Purchaser or Seller which might materially and adversely
affect the transactions contemplated hereunder.
Section 9.4. Regulatory Approval.
(a) Seller shall have received from the appropriate regulatory authorities
approval of the transactions contemplated herein, waiting periods
required by law to pass shall have passed, no proceeding to enjoin,
restrain, prohibit or invalidate such transactions shall have been
instituted or threatened, and any conditions of any regulatory approval
shall have been met.
(b) Such approvals or Purchaser's corresponding regulatory approvals shall
not have imposed any condition which is materially disadvantageous or
burdensome to Seller and neither such regulatory approvals nor the
provisions of this Agreement will have required any action by Seller
which would result in the loss of, or modification to, regulatory
approval of the Xxxxxxx Transaction.
Section 9.5. Xxxxxxx Closing.
The Xxxxxxx Transaction shall have closed without the imposition of regulatory
conditions which would adversely impact the ability of the Seller to close this
agreement.
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ARTICLE X
TERMINATION
Section 10.1. Methods of Termination.
This Agreement may be terminated in any of the following ways:
(a) by either Seller or Purchaser in writing five calendar days in advance
of such termination, if the Closing has not occurred by May 31, 1998;
(b) at any time on or prior to the Effective Time by the mutual consent in
writing of Seller and Purchaser;
(c) by Purchaser in writing if the conditions set forth in Article VIII of
this Agreement shall not have been met by Seller or waived in writing
by Purchaser within 31 calendar days following the date of all
approvals by regulatory agencies and after all statutory waiting
periods have expired;
(d) by Seller in writing if the conditions set forth in Article IX of this
Agreement shall not have been met by Purchaser or waived in writing by
Seller within 31 calendar days following the date of all approvals by
regulatory agencies and after all statutory waiting periods have
expired;
(e) anytime prior to the Effective Time, by Seller or Purchaser in writing
if the other shall have been in breach of any representation and
warranty in any material respect (as if such representation and
warranty had been made on and as of the date hereof and on the date of
the notice of breach referred to below), or in breach of any covenant,
undertaking or obligation contained herein, and such breach has not
been cured by the earlier of 30 calendar days after the giving of
notice to the breaching party of such breach or the Effective Time;
provided, however, that there shall be no cure period in connection
with any breach of Section 7.3 hereof, so long as such breach by
Purchaser was not caused by any action or inaction of Seller, and
Seller may terminate this Agreement immediately if regulatory
applications are not filed within 30 calendar days after the date of
this Agreement as provided in that Section;
(f) by Seller in writing at any time after any applicable regulatory
authority has denied approval of any application of Purchaser for
approval of the transactions contemplated herein; or
(g) by either Seller or Purchaser, in writing five calendar days in advance
of such termination, if the Xxxxxxx Transaction is terminated prior to
completion.
Section 10.2. Procedure Upon Termination.
In the event of termination pursuant to Section 10.1 hereof, and except as
otherwise stated therein, written notice thereof shall be given to the other
party, and this Agreement shall terminate immediately upon receipt of such
notice unless an extension is consented to by the party having the right to
terminate.
If this Agreement is terminated as provided herein,
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(a) each party will return all documents, work papers and other materials
of the other party, including photocopies or other duplications
thereof, relating to this transaction, whether obtained before or after
the execution hereof, to the party furnishing the same;
(b) all information received by either party hereto with respect to the
business of the other party (other than information which is a matter
of public knowledge or which has heretofore been published in any
publication for public distribution or filed as public information with
any governmental authority) shall not at any time be used for any
business purpose by such party or disclosed by such party to third
persons; and
(c) each party will pay its own expenses.
Section 10.3. Payment of Expenses.
Should the transactions contemplated herein not be consummated because of a
party's breach of this Agreement, in addition to such damages as may be
recoverable in law or equity, the other party shall be entitled to recover from
the breaching party upon demand, itemization and documentation, its reasonable
outside legal, accounting, consulting and other out-of-pocket expenses.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.1. Completion of Xxxxxxx Transaction.
Seller and Purchaser acknowledge that the completion of the transactions
contemplated by this Agreement are contingent and dependent upon the completion
and closing of the Xxxxxxx Transaction. In the event that this Agreement is
terminated as provided for in Section 10.1(g), upon such termination neither
party shall be obligated in any way to the other.
Section 11.2. Amendment and Modification.
The parties hereto, by mutual consent, may amend, modify and supplement this
Agreement in such manner as may be agreed upon by them in writing.
Section 11.3. Waiver or Extension.
Except with respect to required approvals of the applicable governmental
authorities, either party, by written instrument signed by a duly authorized
officer, may extend the time for the performance of any of the obligations or
other acts of the other party and may waive (a) any inaccuracies in the
representations and warranties contained herein or in any document delivered
pursuant hereto or (b) compliance with any of the undertakings, obligations,
covenants or other acts contained herein.
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32
Section 11.4. Assignment.
This Agreement and all of the provisions hereof shall be binding upon, and shall
inure to the benefit of, the parties hereto and their permitted assigns, but
neither this Agreement nor any of the rights, interests or obligations hereunder
shall be assigned by either of the parties hereto without the prior written
consent of the other.
Section 11.5. Confidentiality.
Seller and Purchaser agree that any confidentiality agreements between Seller
and Purchaser shall survive the execution hereof and the consummation of the
transactions contemplated herein.
Section 11.6. Addresses for Notices, Etc.
All notices, requests, demands, consents and other communications provided for
hereunder and under the related documents shall be in writing and mailed (by
registered or certified mail, return receipt requested), telegraphed, telexed,
telecopied or personally delivered (with receipt thereof acknowledged) to the
applicable party at the address indicated below:
If to Seller: NationsBank Corporation
Attn.: Xxxxx X. Xxxxxx
000 Xxxxx Xxxxx Xxxxxx
XX0-000-00-00
Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
with a copy to: NationsBank Corporation
Attn: General Counsel
000 Xxxxx Xxxxx Xxxxxx
XX0-000-00-00
Xxxxxxxxx, XX 00000
Fax Number: (000) 000-0000
If to Purchaser: Republic Bank
Attn: Xxxx X. Xxxxxxxx, Chairman, CEO and
President
000 Xxxxxx Xxxxxx, X.X.
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Fax: (000) 000-0000
with a copy to: Republic Bank
Attn: Xxxxx Xxxxxx, General Counsel
000 Xxxxxx Xxxxxx, X.X.
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Fax: (000) 000-0000
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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.
Section 11.7. Counterparts.
This Agreement may be executed simultaneously in two or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
Section 11.8. Headings.
The headings of the Sections and Articles of this Agreement are inserted for
convenience only and shall not constitute a part thereof.
Section 11.9. Governing Law.
This Agreement shall be governed by, and construed in accordance with, the laws
of the state of North Carolina.
Section 11.10. Sole Agreement.
Except for the Confidentiality Agreement, this Agreement and the exhibits and
attachments hereto represent the sole agreement between the parties hereto
respecting the transactions contemplated hereby and all prior or contemporaneous
written or oral proposals, agreements in principle, representations, warranties
and understandings between the parties with respect to such matters are
superseded hereby and merged herein.
Section 11.11. Severability.
If any provision of this Agreement is invalid or unenforceable, the balance
of this Agreement shall remain in effect.
Section 11.12. Parties In Interest.
Nothing in this Agreement, express or implied, expressly including, without
limiting the generality of the foregoing in any way, the provisions of Section
2.6(a) hereof, is intended or shall be construed to confer upon or give to any
person (other than the parties hereto, their successors and permitted assigns)
any rights or remedies under or by reason of this Agreement, or any term,
provision, condition, undertaking, warranty, representation, indemnity, covenant
or agreement contained herein.
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34
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their duly authorized officers as of the date first written above.
NATIONSBANK CORPORATION
By:/s/ Xxxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxx
-----------------------------
Title: Senior Vice President
-----------------------------
REPUBLIC BANK
By:/s/ Xxxx X. Xxxxxxxx
-------------------------------
Name: Xxxx X. Xxxxxxxx
-----------------------------
Title: CEO
-----------------------------
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35
PURCHASE AND ASSUMPTION AGREEMENT
BETWEEN
NATIONSBANK CORPORATION
AND
REPUBLIC BANK
EXHIBIT LIST
Exhibit No. Description
----------- -----------
1.l(b) List of Banking Facilities
2.1(b) List of Excluded Assets
2.4(j) Form of Power of Attorney
2.6(c) Severance Benefits
3.2(b)(1) Form of Special Warranty Deed
3.2(b)(2) Form of Xxxx of Sale
3.2(b)(3) Form of Assignment and Assumption Agreement
3.2(b)(4) Form of Assignment and Assumption of Lease
3.2(b)(15) Form of Closing Statement
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36
EXHIBIT 1.1 (b)
PURCHASE AND ASSUMPTION AGREEMENT
BETWEEN
NATIONSBANK CORPORATION
AND
REPUBLIC BANK
LIST OF BANKING FACILITIES
--------------------------------------------------------------------------------------------------------
MARKET BRANCH NAME ADDRESS
--------------------------------------------------------------------------------------------------------
Xxxx Xxxx Xxxx Xxxx 000 X. 0xx Xxxxxx
Live Oak Live Oak 000 X. Xxxx Xxxxxx
Xxxxxxxxxx Xxx Plantation Key 90184 Overseas Highway
Marathon Marathon 0000 Xxxxxxxx Xxxxxxx
Xxx Xxxx Xxx Xxxx - Main 0000 Xxxxxxx Xxxxx
Xxxxxx Xxxxxxx Silver Springs 0000 X. Xxxxxx Xxxxxxx Xxxx.
Ocala Forest 00000 X.X. Xxxxxxx 00
--------------------------------------------------------------------------------------------------------
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37
EXHIBIT 2.1(b)
PURCHASE AND ASSUMPTION AGREEMENT
BETWEEN
NATIONSBANK CORPORATION
AND
REPUBLIC BANK
All fixtures, equipment and other items of personal property related to
Xxxxxxx'x Merchandising Fixture Systems and located at the Banking Facilities,
including those items listed or depicted on the attached schedule.
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38
XXXXXXX MERCHANDISING FIXTURE SYSTEM
CORE FIXTURES:
01A Entry/Exit Display:
Promotional floor display for placement at Bank entrance/exit. 6'6" x 20"
01B Entry/Ideas Center:
Promotional floor display with a brochure rack on one side and a poster on the
opposite side. For placement at entry/exit. 6'6" x 20"
02 Ideas Center
A. Floorstanding brochure rack. 6'6" x 20"
B. 1 panel wall brochure rack. 39" x 32.5"
C. 2 panel wall brochure rack. 39" x 65"
03 Behind Teller Display
A. Wall hanging display which is placed directly behind teller windows.
24" x 6'
B. One sided display hung from ceiling and placed directly behind teller
windows. 24" x 6'
C. Two sided display hung from ceiling and placed directly behind teller
windows. 24" x 6'
04 Teller Fixture Display
A. Brochure pocket and promotional sign holder for placement directly on face
of teller counter. 11" x 20"
B. Brochure pocket and promotional sign holder with an overhanging bottom lip
for placement directly on face of teller counter. 11" x 20"
C. Brochure pocket and promotional sign holder for flexible placement on top
of teller counter. 11" x 20"
06 Door Sign
A promotional or holiday sign holder for all public entrances. 11" x 13"
07 Regulatory Sign
Displays all required regulatory disclosures. 36 x 24.5"
08 Drive Up Banner Stand
Upright banner holders that are placed at the top of the drive thru lanes.
8'6" x 00"
00 Xxxxx Up Topper
Signholder that is placed either flat on the pneumatic tube or is clamped on
top of the unit. 11" x 11"
39
[PICTURE]
01A Entry/Exit Display
[PICTURE]
01B Entry/Ideas Center
[PICTURE]
02: Ideas Center
A. Floor Standing
[PICTURE]
02: Ideas Center
B. 1 Panel
C. 2 Panel
[PICTURE]
03: Behind Teller Display
A. Wall
B. Ceiling (One Sided)
C. Ceiling (Two Sided)
[PICTURE]
04: Teller Fixture
A. Flat
B. Lip
C. Base
[PICTURE]
06: Door Sign
[PICTURE]
07: Regulatory Sign
[PICTURE]
08: Drive Up
Banner Stand
[PICTURE]
09: Drive Up Topper
A. Flat
B. Base
C. Clamp
40
The following items are also located in each banking center and are considered
proprietary:
acrylic poster stand with pockets
storage box for merchandising campaigns
tool kit
cleaning kit
merchandising handbook
graphics
from past campaigns
regulatory posters
holiday signs
semi-permanent graphics (in fixtures)
brochures
41
EXHIBIT 2.4(i)
PURCHASE AND ASSUMPTION AGREEMENT
BETWEEN
NATIONSBANK CORPORATION
and
REPUBLIC BANK
POWER OF ATTORNEY
THIS POWER OF ATTORNEY is dated this ______ day of ___________ 199_,
by ________________________, a ____________________ ("SELLER"), to be effective
as of __p.m., on ____, 199_.
WITNESSETH:
WHEREAS, Seller and ______________ ("Purchaser") have entered into a
Purchase and Assumption Agreement dated as of ______________, 199_ (the
"Agreement"), which provides for the sale by Seller to Purchaser of certain
personal property; and
WHEREAS, in a Xxxx of Sale to Purchaser dated ____________, 199_ (the
"Xxxx of Sale"), Seller has agreed, from time to time, at the request of
Purchaser to execute, acknowledge and deliver to Purchaser any and all
instruments, documents, endorsements, assignments, information, materials and
other papers that may be reasonably required to (i) transfer to Purchaser's
certain Assets (as defined in the Xxxx of Sale) being acquired by Purchaser
pursuant to the Agreement, including loans and the collateral therefor to the
extent of Seller interest in such collateral and files and records relating to
such loans, (ii) enable Purchaser to xxxx, collect, service and administer the
loans transferred thereby and (iii) give full force and effect to the intent and
purpose of the Xxxx of Sale.
NOW, THEREFORE, for good and valuable consideration, receipt of which
is hereby acknowledged, Seller hereby irrevocably appoints and authorizes the
President or any Vice President, or the Secretary or any Assistant Secretary, of
Purchaser as its attorney-in-fact [solely for the purpose of endorsing and
recording, pursuant to the Xxxx of Sale, certificates of title for vehicles and
similar documents,] provided, such power of attorney is not intended to and does
not convey to Purchaser any right to endorse or record any documents of title
relating to collateral other than collateral transferred pursuant to the Xxxx of
Sale as described in the preceding paragraph.
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IN WITNESS WHEREOF, Seller has caused this Power of Attorney to be duly
executed by its duly authorized officer as of the day and year first above
written.
WITNESSES:
---------------------------------------
By:
---------------------------------- ------------------------------------
Its:
-----------------------------------
STATE OF )
---------------------- )
)
COUNTY OF )
---------------------
Before me, the undersigned Notary Public, in and for the State and
County aforesaid, duly commissioned, qualified and acting, personally appeared
__________________, with whom I am personally acquainted (or proved to me on the
basis of satisfactory evidence), and who, upon oath, acknowledged him/herself to
be _______________ of _____________, a _________________, and s/he, as such
officer, being authorized so to do, executed the foregoing instrument for the
purposes therein contained by signing the name of the association by him/herself
as such officer.
WITNESS my hand and official seal of office at ___________________,
County, ______________________________, this the _______day of _______________,
199_.
--------------------------------------
Notary Public
My commission expires:
----------------------------------
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EXHIBIT 2.6(c)
PURCHASE AND ASSUMPTION AGREEMENT
BETWEEN
NATIONSBANK CORPORATION
AND
REPUBLIC BANK
SEVERANCE BENEFITS
SEVERANCE PAY. Each Employee who has a [Qualified Termination] will be eligible
to receive Severance Pay in an amount equal to his Base Pay multiplied by his
whole and partial Years of Service (calculated to the nearest one-tenth year and
with a minimum of 2.0 years), with the product multiplied by his salary grade
factor as listed in the following chart:
SALARY GRADE FACTOR
1-7 1.0
8 1.25
9 1.3
10 1.4
11 1.5
12-15 1.7
16+ 2.0+
MINIMUM CREDIT FOR YEARS OF SERVICE. In calculating Severance Pay, the Employers
will grant credit for 2.0 Years of Service to each Employee whose actual Years
of Service are less than 2.0.
MAXIMUM SEVERANCE PAY. No Employee will be eligible for Severance Pay under this
Plan in an amount that exceeds twice the sum of (a) his annual Base Pay in
effect on his Termination Date, plus (b) all other cash compensation and the
value of all his Employer-provided benefits for the 12-month period preceding
his Termination Date.
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44
EXHIBIT 3.2(b)(1)
Tax ID Number:_______________
Prepared by:
Xxx X. Xxxxxx, Esquire
NationsBank, N.A.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
SPECIAL WARRANTY DEED
_____________,a ______________, successor to ("Grantor") whose address
is _______________________ , for and in consideration of the sum of TEN AND
NO/100 DOLLARS ($10.00) paid to Grantor and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, has
GRANTED, SOLD and CONVEYED and does hereby GRANT, SELL and CONVEY unto,
_______________ a Florida __________________ ("Grantee"), whose address is
_____________________, in fee simple, that certain land located in
___________________County, Florida, being more particularly described in Exhibit
A, attached hereto and incorporated herein by reference, together with all
improvements, if any, located on such land (such land and improvements being
collectively referred to as the "Property").
This conveyance is made and accepted subject to all matters (the
"Permitted Exceptions") set forth in Exhibit B, attached hereto and incorporated
herein by reference.
TO HAVE AND TO HOLD the Property, together with all and singular the
rights and appurtenances pertaining thereto, including all of Grantor's right,
title and interest in and to adjacent streets, alleys and rights-of-way, subject
to the Permitted Exceptions, unto Grantee and Grantee's heirs, successors and
assigns forever. And Grantor hereby covenants with Grantee that, except as above
noted, that at the time of the delivery of this Special Warranty Deed the
Property was free from all encumbrances made by it and that Grantor will warrant
and defend the same against the lawful claims and demands of all persons
claiming by, through or under Grantor, but against none other.
BY ACCEPTANCE OF THIS DEED, GRANTEE ACKNOWLEDGES THAT GRANTOR HAS NOT
MADE, DOES NOT MAKE AND SPECIFICALLY NEGATES AND DISCLAIMS ANY REPRESENTATIONS,
WARRANTIES, PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES OF ANY KIND OR
CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT
OR FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT TO (A) THE VALUE, NATURE,
QUALITY OR CONDITION OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE WATER,
SOIL AND GEOLOGY, (B) THE INCOME TO BE DERIVED FROM THE PROPERTY, (C) THE
SUITABILITY OF THE PROPERTY FOR ANY AND ALL ACTIVITIES AND USES WHICH GRANTEE
MAY CONDUCT THEREON, (D) THE COMPLIANCE OF OR BY THE PROPERTY OR ITS OPERATION
WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY APPLICABLE
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GOVERNMENTAL AUTHORITY OR BODY, (E) THE HABITABILITY MERCHANTABILITY,
MARKETABILITY, PROFITABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE
PROPERTY, (F) THE MANNER OR QUALITY OF THE CONSTRUCTION OR MATERIALS, IF ANY,
INCORPORATED INTO THE PROPERTY, (G) THE MANNER, QUALITY, STATE OF REPAIR OR LACK
OF REPAIR OF THE PROPERTY, OR (H) ANY OTHER MATTER OR WITH RESPECT TO THE
PROPERTY, AND SPECIFICALLY, THAT GRANTOR HAS NOT MADE, DOES NOT MAKE AND
SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS REGARDING COMPLIANCE WITH ANY
ENVIRONMENTAL PROTECTION, POLLUTION OR LAND USE, ZONING AND DEVELOPMENT OF
REGIONAL IMPACT LAWS, RULES, REGULATIONS, ORDERS OR REQUIREMENTS, INCLUDING THE
DISPOSAL OR EXISTENCE IN OR ON THE PROPERTY, OF ANY HAZARDOUS MATERIALS, WASTES
OR SUBSTANCES DEFINED IN ANY FEDERAL, STATE OR LOCAL LAWS OR ANY OTHER SPECIALLY
REGULATED MATERIALS INCLUDING, BUT NOT LIMITED TO, ASBESTOS, PETROLEUM PRODUCTS,
POLYCHLORINATED BIPHENYL, OR RADON GAS. GRANTEE FURTHER ACKNOWLEDGES THAT TO THE
MAXIMUM EXTENT PERMITTED BY LAW, THE SALE OF THE PROPERTY IS MADE ON AN "AS IS"
CONDITION AND BASIS WITH ALL FAULTS. THE FOREGOING CLAUSE SUPERSEDES ANY
REPRESENTATIONS AND WARRANTIES CONCERNING THE PROPERTY CONTAINED IN THE PURCHASE
AND ASSUMPTION AGREEMENT DATED, _____________, 199__, ENTERED INTO BY OR FOR THE
BENEFIT OF GRANTOR OR GRANTEE.
Ad valorem taxes for the present year having been prorated, Grantee
hereby assumes payment thereof, and subsequent assessments for that and prior
years due to change in land usage, ownership, or both.
38
46
EXECUTED on the date set forth in the acknowledgment attached hereto to
be effective as of the _____________ day of ____________________,1997.
WITNESSES:
----------------------------------------
a
---------------------------------------
By:
---------------------------------- -------------------------------------
Name: Name:
----------------------------- -----------------------------------
Title:
----------------------------------
----------------------------------
Name: (CORPORATE SEAL)
-----------------------------
STATE OF FLORIDA
COUNTY OF HILLSBOROUGH
The foregoing instrument was acknowledged before me on
____________________________, 1997, by ________________, as _____________ of
______________________, a ___________________, on behalf of the
____________________. He/She is personally known to me or has produced
________________________ as identification.
----------------------------------------
Name:
-----------------------------------
(SEAL) NOTARY PUBLIC, State of Florida
Serial Number (if any)
------------------
My Commission Expires:
------------------
39
47
EXHIBIT A TO SPECIAL WARRANTY DEED
40
48
EXHIBIT B TO SPECIAL WARRANTY DEED
PERMITTED EXCEPTIONS
TO DEED
1. Visible and apparent easements and all underground easements, if any, the
existence of which may arise by unrecorded grant or by use.
2. Any and all unrecorded leases, if any, and rights of parties therein.
3. Taxes and assessments for the year of closing and subsequent years.
4. All valid and enforceable covenants, restrictions, reservations, easements
and other matters as shown on the public record.
5. All matters which would be disclosed by an accurate survey of the Property.
6. Governmental rights of police power or eminent domain unless notice of the
exercise of such rights appears in the public records as of the date
hereof; and the consequences of any law, ordinance or governmental
regulation including, but not limited to, building and zoning ordinances.
7. Defects, liens, encumbrances, adverse claims or other matters (1) not known
to the Grantor and not shown by the public records but known to the Grantee
as of the date hereof and not disclosed in writing by the Grantee to the
Grantor prior to the date hereof; (2) resulting in no loss or damage to the
Grantee; or (3) attaching or creating subsequent to the date hereof.
41
49
EXHIBIT 3.2(b)(2)
PURCHASE AND ASSUMPTION AGREEMENT
BETWEEN
NATIONSBANK CORPORATION
AND
REPUBLIC BANK
XXXX OF SALE
THIS XXXX OF SALE is dated this __________ day of _____________, 199__,
by _______________________, a ___________________________________ ("Seller").
WITNESSETH:
WHEREAS, Seller and _______________________, a_______________________
______________________________________("Purchaser"), have entered into a
Purchase and Assumption Agreement dated as of ________________________________,
199_ (the "Agreement"), which provides for the sale by Seller to Purchaser of
certain personal property and loans related to Seller offices identified on the
list attached hereto (the "Banking Facilities"), all as set forth in the
Agreement. Capitalized terms used, but not defined, herein shall have the
meanings defined in the Agreement;
NOW, THEREFORE, Seller, for good and valuable consideration, receipt of
which is hereby acknowledged, does hereby grant, bargain, sell, assign, set
over, convey and transfer to Purchaser all of its right, title and interest in
and to the following assets (the "Assets"):
(a) All furniture, fixtures, equipment and other tangible personal
property located in the Banking Facilities, except for those items
listed in Exhibit 2.1 (b) of the Agreement;
(b) All of the loans maintained, serviced and listed in Seller general
ledger as loans of the Banking Facilities (except for those loans
described in Section 2.4(b) of the Agreement) (the "Loans"); and
(c) All of Seller files and records related to the Loans and the
Equipment Leases, Deposit Liabilities and other liabilities (as
such terms are defined or described in the Agreement).
[Seller, for itself and its successors and assigns, does hereby
covenant and agree to and with Purchaser and its successors and assigns that it
(i) owns the Assets free and clear of any mortgages, liens, security interests
or pledges, and (ii) shall, from time to time, at the request of Purchaser,
execute, acknowledge and deliver to Purchaser any and all further instruments,
documents, endorsements,
42
50
assignments, information, materials and other papers that may be reasonably
required to transfer the Assets to Purchaser, to enable Purchaser to xxxx,
collect, service and administer the Loans and to give full force and effect to
the full intent and purposes of this Xxxx of Sale.]
IN WITNESS WHEREOF, Seller has caused this Xxxx of Sale to be duly
executed by its duly authorized officer as of the day and year first above
written.
----------------------------------------
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
43
51
EXHIBIT 3.2(b)(3)
PURCHASE AND ASSUMPTION AGREEMENT
BETWEEN
NATIONSBANK CORPORATION
AND
REPUBLIC BANK
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT is entered into this ____ day
of _____________ 199__, by and between, ____________________________________, a
_____________________ ("Seller"), and ________________________________, a
____________________________ ("Purchaser").
WITNESSETH:
WHEREAS, Seller and Purchaser have entered into a Purchase and
Assumption Agreement dated as of ___________________, 199__ (the "Agreement"),
which provides for the assignment by Seller of all of its rights and interests
in and to certain leases, contracts, deposit accounts and other liabilities
related to Seller offices identified on the list attached hereto (the "Banking
Facilities"), and the assumption by Purchaser of all of Seller liabilities and
obligations thereunder, all as set forth in the Agreement;
NOW, THEREFORE, in consideration of the foregoing, and for other good
and valuable consideration, receipt of which is hereby acknowledged by Seller
and Purchaser, Seller hereby assigns, transfers and sets over to Purchaser all
of Seller's rights and interest to, and Purchaser hereby assumes all of Seller's
liabilities and obligations in connection with, the following assets (the
"Assets");
(a) All equipment leases for equipment located at the Banking
Facilities (the "Equipment Leases");
(b) All deposit accounts located at the Banking Facilities, except for
those deposit accounts and liabilities described in Section 2.3(b)
of the Agreement (the "Deposit Liabilities"); and
(c) Safe Deposit Contracts.
This Assignment and Assumption Agreement shall be binding upon, and
shall inure to the benefit of, Seller, Purchaser, and each of their successors
and assigns and shall be subject to the terms and conditions of the Agreement.
In the event of a conflict between any of the terms and provisions hereof and
the Agreement, the Agreement shall be deemed to control.
44
52
This Assignment and Assumption Agreement, and the rights and
obligations of the parties hereunder, shall be governed by and construed in
accordance with the laws of the State of ___________________.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Assumption Agreement to be executed by their duly authorized officers, all as of
the day and year first above written.
----------------------------------------
By:
-------------------------------------
Title:
----------------------------------
----------------------------------------
By:
-------------------------------------
Title:
----------------------------------
45
53
EXHIBIT 3.2(b)(4)
Prepared By/Return To
Xxx X. Xxxxxx Esq.
NationsBank Corporation
000 X. Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxx Xxxxxxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
ASSIGNMENT AND ASSUMPTION OF LEASE
(WITH LANDLORD CONSENT)
The parties to this Agreement and Assumption of Lease (the "Assignment")
are ____________, a ("Assignor"), and __________, a ___________________________
("Assignee").
WHEREAS, under the terms of the Lease attached hereto as Exhibit "A"
(the "Lease"), Assignor is the tenant of certain real property and improvements
situated in County, Florida, and having a street address of
_______________________, Florida (the "Leased Premises"); and
WHEREAS, Assignor has agreed to assign all of its right, title and
interest in and to the Lease to Assignee, and Assignee has agreed to assume and
perform Assignor's liabilities and obligations arising under the Lease on and
after the date hereof, all in accordance with this Assignment.
NOW THEREFORE, in consideration of the foregoing and the agreements and
covenants herein set forth, the sum of TEN AND NO/100 DOLLARS ($10.00), and
other good and valuable consideration paid by Assignee to Assignor, the receipt
and sufficiency of which are hereby acknowledged, effective as of ____________,
1997 (the "Effective Date"), Assignor does hereby ASSIGN, TRANSFER, SET OVER and
DELIVER unto Assignee WITHOUT RECOURSE, REPRESENTATION OR WARRANTY all of
Assignor's right, title and interest under the Lease as tenant or lessee in and
to the Lease and all of the rights, benefits and privileges of the tenant or
lessee thereunder, but subject to all terms, conditions, reservations and
limitations set forth in the Lease.
By accepting this Assignment and by its execution hereof, Assignee
hereby assumes and agrees to perform all of the terms, covenants and conditions
of the Lease on the part of the tenant or lessee therein required to be
performed from and after the Effective Date, including, but not limited to, the
obligation to pay, in accordance with the terms of the Lease, rent and all other
monetary obligations. On or before the Effective Date, Assignee shall reimburse
Assignor for any and all security deposits paid by Assignor under the Lease.
Assignee hereby agrees to indemnify and hold harmless Assignor from and
against any and all loss, cost or expense (including, without limitation,
reasonable attorney's fees) resulting by reason of Assignee's failure to perform
any of the obligations of tenant or lessee under the Lease after the Effective
Date. Assignee hereby releases, acquits, and forever discharges Assignor and its
employees, agents, officers,
46
54
subsidiaries, affiliates, successors and assigns, from any and all actions,
causes of actions, claims, demands, costs, losses, and expenses of any kind
whatsoever, both known and unknown, arising out of any matter, happening or
thing relating to the Lease.
Assignee hereby acknowledges that the Leased Premises shall be
delivered by Assignor and accepted by Assignee in "AS IS" condition without
representation or warranty as to the condition of the Leased Premises or their
suitability for any particular use.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, ASSIGNOR DISCLAIMS, AND ASSIGNEE
ACKNOWLEDGES AND ACCEPTS THAT ASSIGNOR HAS DISCLAIMED, TO THE MAXIMUM EXTENT
PERMITTED BY LAW, ANY AND ALL REPRESENTATIONS, WARRANTIES, OR GUARANTIES OF ANY
KIND, ORAL OR WRITTEN, WHETHER EXPRESS OR IMPLIED, CONCERNING THE LEASED
PREMISES INCLUDING, BUT NOT LIMITED TO: (I) THE VALUE, CONDITION,
MERCHANTABILITY, MARKETABILITY, PROFITABILITY, SUITABILITY, OR FITNESS FOR A
PARTICULAR USE OR PURPOSE OF THE LEASED PREMISES; (II) THE MANNER OR QUALITY OF
THE CONSTRUCTION OF MATERIALS, IF ANY, INCORPORATED INTO THE LEASED PREMISES; OR
(III) THE MANNER, QUALITY, STATE OF REPAIR, OR LACK OF REPAIR OF THE LEASED
PREMISES. ASSIGNOR IS NOT LIABLE OR BOUND IN ANY MANNER BY ANY VERBAL OR WRITTEN
STATEMENTS, REPRESENTATIONS, OR INFORMATION PERTAINING TO THE LEASE OR THE
LEASED PREMISES, FURNISHED BY ANY REAL ESTATE BROKER OR FINDER OR OTHER PERSON
UNLESS THE SAME ARE SPECIFICALLY SET FORTH HEREIN. ASSIGNEE SHALL TAKE THE
LEASED PREMISES SUBJECT TO ALL LIENS, ENCUMBRANCES AND OTHER MATTERS OF RECORD
ENCUMBERING THE LEASED PREMISES AS OF THE EFFECTIVE DATE HEREOF. THE FOREGOING
CLAUSE SUPERSEDES ANY REPRESENTATIONS AND WARRANTIES CONCERNING THE LEASED
PREMISES CONTAINED IN THE PURCHASE AND ASSUMPTION AGREEMENT DATED ____________,
199__, ENTERED INTO BY OR FOR THE BENEFIT OF ASSIGNOR OR ASSIGNEE.
All of the covenants, terms and conditions set forth herein shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective heirs, executors, administrators, personal representatives,
successors and assigns.
Assignee shall pay all documentary stamp taxes, if any, due in
connection with this Assignment and shall indemnify and hold Assignor harmless
from and against the claims of the Florida Department of Revenue for the payment
of documentary stamp taxes in connection with this Assignment or the Lease
47
55
WITNESSES: , a
-----------------------------------
---------------------------------------
By:
---------------------------------- ------------------------------------
Name: Name:
----------------------------- ----------------------------------
Title:
---------------------------------
By:
---------------------------------- ------------------------------------
Name: Name:
----------------------------- ----------------------------------
Title:
---------------------------------
"ASSIGNOR"
AGREED TO AND ACCEPTED BY ASSIGNEE:
, a
-----------------------------------
---------------------------------------
By:
---------------------------------- ------------------------------------
Name: Name:
----------------------------- ----------------------------------
Title:
---------------------------------
By:
---------------------------------- ------------------------------------
Name: Name:
----------------------------- ----------------------------------
Title:
---------------------------------
Address of Assignee:
---------------------------------------
---------------------------------------
"ASSIGNEE"
49
56
STATE OF
-------------------------------
COUNTY OF
------------------------------
The foregoing instrument was acknowledged before me on ______________,
1997, by _____________ as ______________ of __________________, a
_________________ on behalf of the ___________________. He/She is personally
known to me or has produced ___________________ as identification.
----------------------------------------
Name:
-----------------------------------
NOTARY PUBLIC, State of
-----------------
(SEAL) Serial Number (if any)
------------------
My Commission Expires:
------------------
STATE OF FLORIDA
COUNTY OF HILLSBOROUGH
The foregoing instrument was acknowledged before me on
_____________________________________, 1997, by _______________________________
as____________________ of __________________________, a _______________________,
on behalf of the ___________________________. He/She is personally known to me
or has produced __________________________as identification.
----------------------------------------
Name:
-----------------------------------
NOTARY PUBLIC, State of
-----------------
(SEAL) Serial Number (if any)
------------------
My Commission Expires:
------------------
[LANDLORD CONSENT CONTINUED ON NEXT PAGE]
50
57
CONSENT AND RELEASE BY LANDLORD
In consideration of ten dollars ($10.00) and other valuable
consideration, the receipt and sufficiency _______________________ of which is
hereby acknowledged, ________________________________________________
("Landlord"), does hereby acknowledge, approve and consent to the foregoing
Assignment, and, effective as of _________________, 1997, Landlord and its
successors and assigns hereby release, acquit, satisfy and forever discharge
Assignor and its employees, agents, officers, subsidiaries, affiliates,
successors and assigns, from any and all actions, causes of action, claims,
demands, rights, damages, costs, losses, expenses, occurrences, and liability of
any kind whatsoever, both known and unknown, arising out of any matter,
happening or thing, from the beginning of time and relating to the Lease.
Landlord acknowledges and agrees that Assignor is released from all liability
under the Lease, effective as of ________, 1997.
Landlord represents and warrants that it has full authority to execute
this Assignment without the joinder or consent of any party (or if such consent
is required, that Landlord has secured same), including, but not limited to, any
lenders holding mortgages encumbering the Leased Premises, and that Landlord has
not assigned any of its rights, title or interest in the Lease to any other
party, which representations and warranties shall survive the execution of this
Assignment and the release of Assignor under this Lease. Landlord agrees to
indemnify and hold Assignor harmless from and against any claims, losses,
demands, liabilities, damages and expenses of any kind or nature, including,
without limitation, attorneys fees and costs, incurred or arising by reason of a
breach or violation of any of the agreements, obligations, covenants, or
representations and warranties of Landlord contained herein.
---------------------------------------
---------------------------------------
---------------------------------------
By:
---------------------------------- ------------------------------------
Printed Name:
--------------------- ---------------------------------------
Name:
---------------------------------- ----------------------------------
Printed Name: Title:
--------------------- ---------------------------------
"LANDLORD"
51
58
STATE OF FLORIDA
COUNTY OF ______________________
The foregoing instrument was acknowledged before me this ______day of
_____________, 1997 by ___________________________, as ________________________,
a _____________________, on behalf of the __________________________. He/She is
personally known to me or has produced ___________________ as identification.
My Commission Expires:
---------------------------------------
---------------------------------- NOTARY PUBLIC
(SEAL) ---------------------------------------
(Type or Print Name)
52
59
EXHIBIT "A" TO ASSIGNMENT AND ASSUMPTION AGREEMENT
LEASE AGREEMENT
53
60
EXHIBIT 3.2(b)(15)
PURCHASE AND ASSUMPTION AGREEMENT
BETWEEN
NATIONSBANK CORPORATION
AND
REPUBLIC BANK
CLOSING STATEMENT
(PRE-CLOSING BALANCE SHEET AS OF _________________________)
CASH DUE PURCHASER FOR:
Deposit liabilities (including accrued interest)
------------------------
[Pro rata real property taxes]
------------------------
Total Cash due Purchaser
------------------------
CASH DUE SELLER FOR:
------------------------
Net Book Value of Real and Personal Property
------------------------
Premium for Real and Personal Property
------------------------
Other
------------------------
Premium for Deposit Liabilities
------------------------
Net Book Value of Loans (including accrued interest)
------------------------
Premiums for Loans
------------------------
Coins and currency
------------------------
Pro rata FDIC insurance
------------------------
Other prorated items
------------------------
Total Cash due Seller
------------------------
Net cash due (Purchaser)(Seller)
------------------------
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Seller hereby approves the Closing Statement and acknowledges receipt of the
total cash due Seller. Purchaser hereby approves the Closing Statement,
acknowledges receipt of the net cash due Purchaser and assumes liability for
payment of all taxes and other items as provided for in the Purchase and
Assumption Agreement between Seller and Purchaser dated as of _____________,
199_ (the "Agreement"). Seller and Purchaser agree to make subsequent
adjustments to the extent necessary in accordance with Section 3.3 of the
Agreement.
---------------------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Date:
----------------------------------
---------------------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Date:
----------------------------------
55
