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EXHIBIT 2
PURCHASE AND ASSUMPTION AGREEMENT
BY AND BETWEEN
WASHINGTON MUTUAL BANK FSB
AND
GLACIER BANK
DATED
AS OF
MAY 19, 1999
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SCHEDULES
Schedule 1.3 Fixed Assets
Schedule 1.4 Assumed Contracts
Schedule 1.14 Deposit Liability Exclusions
Schedule 1.15 Liabilities
Schedule 1.18 Real Property
Schedule 1.19 Transferred Employees
Schedule 2.1 Liens and Encumbrances
Schedule 4.2(g) Leases Etc. as of Closing
Schedule 7.6(c) Current Leases Etc.
Schedule 7.10 Insurance
Schedule 8.5 Brokers and Finders
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EXHIBITS
Exhibit A Estoppel Certificate
Exhibit B Warranty Deed
Exhibit C Assignment and Assumption Agreement
Exhibit D Xxxx of Sale and Assumption Agreement
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BRANCH PURCHASE AND ASSUMPTION AGREEMENT
This Agreement is made and entered into this 19th day of May, 1999 by
and between WASHINGTON MUTUAL BANK fsb, a federally chartered savings
association whose head office is located in Salt Lake City, Utah ("WMBfsb"), and
GLACIER BANK a Montana chartered banking corporation whose head office is
located in Kalispell, Montana ("Buyer").
WHEREAS, WMBfsb desires to sell certain depository accounts and certain
assets attributable to its two branch banking offices in Butte, Montana upon the
terms and conditions hereinafter set forth, and
WHEREAS, Buyer is willing to acquire such assets and to assume the
deposits and certain other liabilities attributable to such banking offices upon
the terms and conditions hereinafter set forth,
NOW, THEREFORE, the parties to this Agreement do hereby agree as
follows:
ARTICLE I
DEFINITIONS
Unless the context otherwise specifies and requires, the following terms
have the meanings given below:
1.1. "ACCOUNT LOAN" means any loan owned by WMBfsb as of the Closing
Date that is either (i) secured by an account at a Banking Office together with
all accrued but-unpaid interest and any accrued but unpaid late or other charges
thereon or (ii) any overdraft balances on accounts at a Banking Office together
with all accrued but unpaid interest and any accrued but unpaid late or other
charges thereon ("Overdraft Loan").
1.2. "AGREEMENT" means this Branch Purchase and Assumption Agreement.
1.3. "ASSETS" means, subject to any adjustments described elsewhere in
this Agreement: (i) the equipment, personal property and other fixed assets set
forth on Schedule 1.3; (ii) all inventories and supplies on hand at the Banking
offices as of the Closing Date, except for supplies of the loan departments upon
which the name or logo of WMBfsb or any affiliated entity are affixed; (iii)
books and records of WMBfsb as described in Section 2.4 hereof; (iv) all rights
of WMBfsb under express or implied warranties given or made in connection with
the Assets, if any; (v) all of WMBfsb's right, title and interest in and to the
Assumed Contracts and the Real Property; (vi) all Account Loans; and, (vii) cash
on hand at the Banking Offices, cash due and cash items in the process of
collection for each Banking Office at the close of business on the Closing Date.
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1.4. "ASSUMED CONTRACTS" means all mortgages, real property leases,
contracts, equipment and personal property leases, and other agreements of
WMBfsb attributable to the Banking Offices that are assumed by Buyer hereunder.
All such contracts, leases and agreements, etc. are set forth on Schedule 1.4.
1.5. "BANKING OFFICES" means the Butte Main Banking Office and the Butte
Tamarack Banking Office.
1.6. "BUTTE MAIN BANKING OFFICE" means the Banking Office located at 00
Xxxxx Xxxx Xxxxxx, Xxxxx, Xxxxxxx.
1.7. "BUTTE MAIN REAL PROPERTY" means the real property on which the
Butte Main Banking Office is located and all improvements thereon, all as more
fully described on Schedule 1.18.
1.8. "BUTTE MAIN LEASES" means (i) that certain lease agreement dated
October 7, 1988 between Prudential Federal Savings and Loan Association
(predecessor in interest to WMBfsb) as landlord and X.X. Xxxxxxxx & Co. as
tenant, as such agreement may be amended from time to time, and (ii) that
certain lease agreement dated September 25, 1997 between WMBfsb as landlord and
Career Futures, Inc. as tenant, as such agreement may be amended from time to
time.
1.9. "BUTTE TAMARACK BANKING OFFICE" means the Banking Office located at
0000 Xxxxxxxx Xxxxxx, Xxxxx, Xxxxxxx.
1.10. "BUTTE TAMARACK REAL PROPERTY" means the real property on which
the Butte Tamarack Banking Office is located and all improvements thereon, all
as more fully described on Schedule 1.18.
1.11. "CLOSING" means the closing of the transactions contemplated by
this Agreement, which is to take place via telephone by the parties' at their
respective headquarters or such other place and method as shall be mutually
agreed in writing by the parties hereto, at 10:00 a.m. Pacific time, on the
Closing Date. Unless otherwise agreed by the parties, the Closing will be deemed
to occur, and will be effective, at 11:59 p.m., Pacific time, on the Closing
Date.
1.12. "CLOSING DATE" means the later of either October 9, 1999 or five
business days after the receipt of all regulatory approvals and the expiration
of any legally required waiting, protest or appeal periods, or such other date
as is mutually agreed by the parties hereto.
1.13. "CONFIDENTIALITY AGREEMENT" means that letter agreement dated
February 17, 1999 by and between WMBfsb and Buyer.
1.14. "DEPOSIT LIABILITIES" means those deposit liabilities attributable
to the Banking Offices, as of the Closing Date (plus accrued interest payable
thereon as of the Closing Date) including, without limitation, all passbook
accounts, statement savings accounts, checking accounts, NOW accounts, money
market deposit accounts, time deposits, certificates of deposit
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and XXX accounts; provided, however, that Deposit Liabilities will not include
any XXX accounts which are not transferred to Buyer's master agreement as
provided in Section 2.5(b) or any deposit liabilities attributable to the
customers specified on Schedule 1.14.
1.15. "LIABILITIES" means all Deposit Liabilities, all obligations of
WMBfsb under the Assumed Contracts, and together with other miscellaneous
liabilities specified on Schedule 1.15.
1.16. "PAYMENT AMOUNT" means the amount set forth in Section 3.1 of this
Agreement.
1.17. "PREMIUM" means the 6.38% of the book value of the Deposit
Liabilities on the Closing Date (stated as a positive number).
1.18. "REAL PROPERTY" means the Butte Tamarack Real Property and the
Butte Main Real Property, all as more fully described on Schedule 1.18.
1.19. "TRANSFERRED EMPLOYEES" means the employees of WMBfsb or its
affiliates listed on Schedule 1.19.
ARTICLE II
TRANSFER OF ASSETS; ASSUMPTION OF LIABILITIES
2.1. Transfer of Assets. Subject to the terms and conditions of this
Agreement, on the Closing Date, WMBfsb will transfer, convey, assign and deliver
to Buyer all of its right, title and interest in and to the Assets, free and
clear of all liens and encumbrances, except for those liens and encumbrances set
forth on Schedule 2.1.
2.2. Assumption of Liabilities. Subject to the terms and conditions of
this Agreement, from and after the Closing Date, Buyer will assume all of
WMBfsb's obligations with respect to the Assumed Contracts, Real Property, the
Butte Main Leases, the Account Loans, and the Deposit Liabilities including,
without limitation, any reporting or filing obligations imposed by the Internal
Revenue Service or any other regulatory authority. Buyer will assume and will
pay, perform and discharge the Deposit Liabilities to customers of WMBfsb as
stated in WMBfsb's applicable account records, rules and regulations attributed
on the records of WMBfsb to the Banking Offices. It is understood that Buyer may
elect to make reasonable adjustments in interest payment periods, payment
options and similar adjustments required to conform the accounts to the data
processing capabilities of Buyer. Buyer will make such adjustment in accordance
with its understanding of its legal rights and obligations and neither WMBfsb
nor its counsel express any opinion with respect to such legal rights or
obligations nor does WMBfsb consent with respect to such changes. As between
Buyer and WMBfsb, any such adjustments will have no effect on Buyer's agreement
to pay the Deposit Liabilities as herein stated, and WMBfsb will have no
liability to any customer as a result of any such adjustments.
2.3. Value of Assets and Deposit Liabilities. Except as otherwise
provided in the Agreement or in any schedule or exhibit hereto, the value of the
Assets and Deposit Liabilities will be the net book value thereof as of the
Closing Date as established by WMBfsb in accordance with generally accepted
accounting principles (or, in the event the book value of an
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Asset cannot be determined or is zero, an agreed upon price for such Asset,
provided that if the parties fail to agree on the price of an Asset covered by
this parenthetical, then it will not be transferred but will be retained by
WMBfsb).
2.4. Books and Records. Except for any files, books of account and
records relating to real estate loans not purchased by Buyer and to deposit
liabilities attributable to the Banking Offices which are not Deposit
Liabilities (and therefore not being assumed by Buyer), from and after the
Closing Buyer will have the right to possession of any and all files, books of
account and records directly relating to the Banking Offices, the Assets or the
Liabilities affecting daily operations which are ordinarily maintained at the
Banking Offices. All books and records relating to the Banking Offices, the
Assets or the Liabilities held by either party will be open for inspection for
reasonable purposes by the other party and its authorized agents,
representatives, and regulators during regular business hours after the Closing
Date, and the party with the right of inspection may, at its own expense, make
copies of excerpts from such files, books of account and records as it deems
desirable. All books and records relating to the Banking Offices, the Assets or
the Liabilities will be maintained for a period at least equal to the longer of
the period required by law or the normal retention period under WMBfsb's or
Buyer's (as the case may be) records management program, unless the parties
agree upon a shorter period.
2.5. XXX Accounts.
(a) Included in the Deposit Liabilities are deposits of customers
of the Banking Offices relating to XXX accounts pursuant to which WMBfsb is
currently acting as custodian.
(b) Within such period prior to the Closing Date as is required
by applicable law or regulation, WMBfsb will, at its sole cost and expense,
notify the depositors who maintain such XXX accounts of WMBfsb's intent to
resign as custodian as of Closing and to appoint Buyer as successor custodian
and the discharge and release of WMBfsb from all liabilities as custodian from
and after the effective time of its resignation. Buyer will accept such
appointment as successor custodian, however, only if the customer accepts and
agrees to such appointment and to Buyer's master XXX agreement. It is agreed
that WMBfsb is required to notify each such depositor only once, which
notification will be by means of a letter approved by Buyer and accompanied by
all appropriate forms and documents necessary to effect such replacement and
release and to adopt Buyer's master agreement. The XXX account of any customer
not accepting the appointment of Buyer and the Buyer's master plan will not be
included in the Deposit Liabilities.
ARTICLE III
CONSIDERATION
3.1. Consideration. In consideration of the transactions set forth
herein, WMBfsb will pay to Buyer at Closing an amount (the "Payment Amount")
equal to the value of the Deposit Liabilities (as valued pursuant to Section
2.3) plus the accrued amount for any vacation days transferred to Buyer for any
Transferred Employee pursuant to Section 5.13(d), less the value of
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the Assets (as valued pursuant to Section 2.3) and less the Premium, subject to
adjustments as provided in Article 12 or elsewhere in this Agreement.
3.2. Proration. Except as otherwise specifically provided in this
Agreement, it is acknowledged that WMBfsb will operate for its own account the
Banking Offices through the Closing Date and that Buyer will operate for its own
account the Banking Offices from and after the Closing Date. Accordingly, except
as otherwise specifically provided in this Agreement, items of income and
expense allocable to the Assets and Liabilities will be prorated as of the
Closing Date, whether or not such adjustment would normally be made as of such
time.
3.3. Sales and Transfer Taxes. All excise and real estate transfer taxes
which are payable or arise as a result of this Agreement will be paid by WMBfsb.
All assessments, including local improvement district assessments, that are
levied against the Assets prior to the date of this Agreement will be paid in
full by WMBfsb. All assessments, including local improvement district
assessments, levied against the Assets on or after the date hereof through the
Closing Date, will be prorated; provided, however, that in the event of any such
assessment, WMBfsb will promptly notify Buyer; and provided further, that
without Buyer's prior written consent, WMBfsb will not in any manner agree to,
consent to or agree not to protest any such assessment. All sales tax payable as
a result of the sale of personal property under this Agreement will be paid by
Buyer.
Real estate taxes assessed against the Real Property will be apportioned
at the Closing on the basis of the calendar year during which the Closing occurs
in such manner that WMBfsb will pay or, at its option, allow Buyer as a credit
against the consideration to be paid to WMBfsb hereunder that portion thereof
which corresponds to the portion of such calendar year which has expired on the
Closing Date, and Buyer will pay or assume the balance. Rents, water charges and
sewer use charges, if any, will be apportioned as of the Closing Date as
estimated on the basis of the best information available.
ARTICLE IV
CONDITIONS PRECEDENT
4.1. Conditions Precedent to the Obligations of Both Parties. The
obligations of each of the parties to this Agreement are subject to fulfillment
at or prior to the Closing Date of each of the following conditions, but
compliance with or occurrence of any one or more of such conditions precedent
(other than the conditions set forth in Section 4.1(a)) may be waived by the
parties in writing.
(a) Regulatory Approvals. All required licenses, approvals, and
consents of any relevant state and federal regulatory agencies will have been
obtained and all necessary conditions, including all legally required waiting,
protest or appeal periods, of or relating to such approvals will have expired or
been fully satisfied; provided, however, that either party may deem this
condition unfulfilled if any such approval is subject to a qualification or
condition which, in the reasonable judgment of such party after consultation
with the other party, (i) prohibits any of the parties or their affiliates from
engaging in any activity which they
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currently conduct and which is otherwise permitted to it under applicable law,
(ii) is not permitted by law, or (iii) has a material and adverse impact on the
value of the transaction contemplated by this Agreement. Notwithstanding the
preceding sentence, in the event a regulatory agency fails to approve the
transaction contemplated by this Agreement or imposes a condition under (i),
(ii) or (iii) above, the parties agree to cooperate and use best efforts to meet
and work with such regulatory agency to resolve the problem and to obtain the
appropriate approvals.
(b) Absence of Litigation. No action or proceeding instituted by
any governmental agency or otherwise to prevent the consummation of the
transactions covered and contemplated by this Agreement will be pending at the
time of the Closing, and no order by any governmental authority prohibiting or
preventing the Closing will be in effect.
4.2. Condition Precedent to the Obligations of Buyer. The obligations of
Buyer under this Agreement are further subject to the satisfaction of each of
the further conditions precedent set forth in this Section 4.2, any one or more
of which may be expressly waived by Buyer in writing.
(a) Each of the obligations of WMBfsb required to be performed by
it at or prior to the Closing pursuant to the terms of this Agreement will have
been duly performed and complied with in all material respects (without
reference to any materiality standard therein) and the representations and
warranties of WMBfsb contained in this Agreement will be true and correct in all
material respects (without reference to any materiality standard therein) as of
the date of this Agreement and as of the Closing Date as though made at and as
of the Closing Date except as to any representation or warranty that
specifically relates to an earlier date.
(b) Buyer will have received a certificate from WMBfsb
substantially in the form described in Section 6.2(g).
(c) On or prior to Closing, WMBfsb will have obtained and
delivered all material consents reasonably necessary to authorize the transfer
and assignment to Buyer of, or the substitution of Buyer for WMBfsb under all
material Assumed Contracts (without any material alterations required by any
third party and preserving for Buyer all material rights and privileges
thereunder) and Buyer will have received estoppel certificates executed within
30 days of Closing from each of the tenants under the Butte Main Leases in
substantially the form attached hereto as Exhibit A.
(d) On or prior to Closing, WMBfsb will have obtained and
delivered title insurance policies with owner's standard coverage and, at
Buyer's sole option provided that Buyer pays for any additional expense thereof
(including the cost of any survey), a survey endorsement, covering all the Real
Property showing no liens, encumbrances or charges, except those not objected to
by Buyer, including without limitation current taxes not delinquent, printed
exceptions generally contained in any owner's standard coverage policy of title
insurance, rights of government entities to make cuts and fills in connection
with construction and/or maintenance of any public roadways adjoining the Real
Property and easements and reservations of record which do not materially
adversely affect the portion of the Real Property on which the
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improvements are erected and which do not, in the reasonable discretion of
Buyer, materially adversely interfere with the current use of any other portion
of the Real Property. Except as noted above, the cost of obtaining such policies
will be paid for by WMBfsb.
(e) In connection with the environmental report on the Real
Property described in Section 5.10, WMBfsb will have complied with the
recommendations set forth therein as of Closing, and as of Closing, with respect
to any Real Property, neither WMBfsb nor Buyer will have knowledge of any other
steps with respect to any materials and hazardous substances that may be
required to comply with the Comprehensive Environmental Response, Compensation
and Liability Act and other applicable law.
(f) Since the date hereof, there will not have been any material
adverse changes in the Assets or Liabilities or in the condition (financial or
otherwise), properties, assets, liabilities, business or operations of the
Banking Offices. All the Real Property (including all improvements thereon) will
be in its current condition and repair, reasonable wear and tear excepted.
(g) Except for the Butte Main Leases and except as provided on
Schedule 4.2(g), all leases, subleases, licenses or similar agreements
permitting any party other than WMBfsb (whether or not affiliated with WMBfsb)
to lease, occupy or use space in any Banking Office or Real Property will have
been terminated on or prior to Closing.
(h) Buyer has not delivered a notice of termination to WMBfsb as
provided in Section 5.17.
4.3. Conditions Precedent to the Obligations of WMBfsb. The obligations
of WMBfsb under this Agreement are further subject to the satisfaction of each
of the further conditions precedent set forth in this Section 4.3, any one or
more of which may be expressly waived by WMBfsb in writing.
(a) Each of the obligations of Buyer required to be performed by
it at or prior to the Closing pursuant to the terms of this Agreement will have
been duly performed and complied with in all material respects (without
reference to any materiality standard therein) and the representations and
warranties of Buyer contained in this Agreement will be true and correct in all
material respects (without reference to any materiality standard therein) as of
the date of this Agreement and as of the Closing Date as though made at and as
of the Closing Date except as to any representation or warranty that
specifically relates to an earlier date.
(b) WMBfsb will have received a certificate from Buyer
substantially in the form described in Section 6.3(a).
(c) Since the date of this Agreement, there will not have been
any material adverse changes in the assets or liabilities or in the condition
(financial or otherwise) of properties, assets, liabilities, business or
operations of Buyer, where such change would prevent or materially impair Buyer
from fulfilling the terms and conditions of this Agreement.
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ARTICLE V
COVENANTS AND AGREEMENTS OF THE PARTIES
5.1. Review; Confidentiality. To the extent that it is legally permitted
to do so, WMBfsb will permit Buyer and its authorized representatives,
accountants, independent appraisers and counsel (collectively,
"Representatives") to have access during regular business hours, upon prior
reasonable notice and in such manner as will not interfere with the conduct of
WMBfsb's business, to all of the properties and books and records of or relating
to the Banking Offices, the Assets or the Liabilities, and to all other
information with respect to the business affairs, financial condition, and
assets of the Banking Offices, as Buyer may from time to time reasonably
request. Buyer and WMBfsb will provide each other promptly with information as
to any significant developments in the performance of this Agreement and will
promptly notify the other if either discovers that any of its representations
and warranties contained in this Agreement or in any document delivered in
connection with this Agreement was not true and correct in all material respects
or becomes untrue or incorrect in any material respect. Buyer and its
Representatives will treat all information furnished to Buyer by WMBfsb in
connection with this Agreement in accordance with the Confidentiality Agreement.
5.2. Right to Inspect. Upon reasonable prior notice, WMBfsb shall permit
Buyer and its authorized representatives and independent appraisers and
inspectors the opportunity to inspect the Real Property.
5.3. Conduct of Business Pending Closing. From the date of this
Agreement through the Closing Date, WMBfsb will conduct its business and affairs
at the Banking Offices in the ordinary course and will offer at the Banking
Offices the same deposit products and pay interest rates on deposits consistent
with past practice, except where mutually agreed on by WMBfsb and Buyer. Buyer
and WMBfsb will work together to define and implement the operational procedures
necessary to transfer the Banking Offices to Buyer. Within two (2) days after
the execution and delivery of this Agreement, WMBfsb and Buyer will each
designate an individual to serve as liaison concerning operations matters. From
and after the date hereof through the Closing Date, except as may be required by
a regulatory authority, WMBfsb will not, without prior written consent of Buyer:
(a) Cause or permit the Banking Offices to engage or participate
in any material transaction or incur or sustain any material obligation except
in the ordinary course of business;
(b) Cause or permit the Banking Offices to transfer to WMBfsb's
other operations any material amount of Assets or Liabilities, except for (i)
equipment and supplies, if any, which have a unique function in WMBfsb's
business and ordinarily would not be useful to Buyer (such as, for example,
computer software and sign inserts which refer to WMBfsb), and (ii) cash and
other customary inter-bank transfers made in the ordinary course of business in
accordance with WMBfsb's normal banking practices;
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(c) Cause or permit the Banking Offices to transfer to WMBfsb's
other operations any deposits of the type included in the Deposit Liabilities
(except pursuant to an unsolicited customer request where it would be customary
banking practice to honor such request);
(d) Transfer, assign, encumber, or otherwise dispose of or enter
into any contract, agreement, or understanding to transfer, assign, encumber, or
otherwise dispose of the Real Property or any other Assets, except for
transactions in the ordinary course of business involving assets other than Real
Property;
(e) Make any material capital investment in any Asset;
(f) Enter into or amend any material continuing contract relating
to a Banking Office or the Real Property which would be included among the
Liabilities, for the purchase or lease of materials, supplies, equipment or
services which cannot be terminated on not more than thirty (30) days' notice
without cause and without payment of any material amount as a penalty, bonus,
premium, or other compensation for termination;
(g) Undertake any actions which (i) are inconsistent with a
program to use all reasonable efforts to maintain good relations with WMBfsb's
employees employed at the Banking Offices and customers, unless such actions are
required or permitted by this Agreement, (ii) materially increase the personnel
at the Banking Offices, or (iii) increase the salaries or benefits of the
Transferred Employees, except as consistent with past practice;
(h) File any application with regulatory authorities to relocate
any Banking Office;
(i) Terminate the operations of any Banking Office or sell or
otherwise transfer any such operations to any third party;
(j) Enter into to any leases, subleases, licenses or similar
agreements permitting any affiliated or non-affiliated parties to lease, use or
occupy space in any of the Banking Offices or on the Real Property;
(k) Transfer employees to or from the Banking Offices and
WMBfsb's other operations other than temporary assignments of a fill-in nature
in the ordinary course of business;
(l) Take any action inconsistent with maintaining the tangible
personal property and equipment included among the Assets in good operating
condition and repair, except for ordinary and reasonable wear;
(m) Take any action that would cause the termination of or
reduction in coverage of any insurance policy currently in effect on or relating
to the Banking Offices, the Assets or the Liabilities; or
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(n) Fail to comply in any material respect with all laws,
regulations, ordinances, codes, orders, licenses and permits applicable to the
Assets, the Liabilities or the operation of the Banking Offices.
5.4. Regulatory Approvals. Each party agrees to use best efforts to
obtain and, where necessary, to assist the other party in obtaining the
regulatory approvals referred to in Section 4.1 of this Agreement. WMBfsb and
Buyer agree to use their best efforts to file initial regulatory applications
for approvals as soon as reasonably practicable and no later than May 31, 1999;
5.5. Further Assurances; Transitional Matters. From and after the
Closing Date, WMBfsb will execute, acknowledge, and deliver such assurances as
may be reasonably necessary to effectively vest in Buyer all of WMBfsb's right,
title and interest in and to the Assets. From the date hereof through Closing,
WMBfsb will provide Buyer all reasonable assistance requested by Buyer in order
to effect as of Closing the orderly transfer of the Banking Offices, the other
Assets and the Liabilities including providing information so Buyer can provide
the notifications and documents necessary hereunder or to effect the transfer,
and, except as otherwise provided in this Agreement, for a period of six (6)
months after the Closing Date, WMBfsb will provide such similar reasonable
assistance to Buyer appropriate to effect the orderly transfer of the Banking
Offices, other Assets and the Liabilities.
5.6. Consents. WMBfsb will use its best efforts to obtain and deliver to
Buyer on the Closing Date all material consents reasonably necessary to
authorize the transfer and assignment to Buyer of, or the substitution of Buyer
for WMBfsb under, the Butte Main Leases and all material Assumed Contracts.
Notwithstanding the foregoing, this Agreement will not constitute an agreement
to assign any Assumed Contract or Butte Main Leases if any attempted assignment
thereof would constitute a breach thereof or would materially and adversely
affect the rights of WMBfsb thereunder. Buyer will use its best efforts to
assist WMBfsb in obtaining the above-described consents.
5.7. Termination of Contracts Not Assumed. As of or prior to the Closing
Date WMBfsb will terminate all existing contracts with respect to the Banking
Offices or the Real Property it does not wish to continue and that Buyer
notifies WMBfsb that Buyer does not wish to assume.
5.8. Indemnification by WMBfsb. Subject to the provisions of Article 9
hereof, WMBfsb will indemnify Buyer against and hold Buyer harmless from any and
all losses, costs, damages, and expenses in respect of suits, proceedings,
demands, judgments, expenses, and costs, including, without limitation, costs
and expenses of counsel, which Buyer may suffer by reason of any of the
following: (i) the breach of any representation, warranty or agreement by WMBfsb
contained in this Agreement or in any other document to be delivered at Closing;
(ii) any state of facts existing, or act or omission of WMBfsb occurring, on or
prior to the Closing Date with respect to any of the Assets or Liabilities
(including, without limitation, any Bank Secrecy Act violations occurring prior
to Closing, any failure by WMBfsb to correctly file or pay any taxes or tax
information with respect to the Assets or Liabilities prior to Closing and any
act or omission by WMBfsb in connection with its acting as a custodian of XXX
accounts at
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the Banking Offices prior to Closing; but not including any state of facts
existing, or act or omission of WMBfsb with respect to hazardous substances
described in Section 5.10 or any defect in title to the Real Property); or (iii)
the failure of any Account Loan (other than Overdraft Loans) to have been
secured as of the Closing Date by a valid, perfected and prior lien on the
account or accounts serving as security therefor.
5.9. Indemnification by Buyer. Subject to Article 9 hereof, Buyer will
indemnify WMBfsb against and hold it harmless from any and all losses, costs,
damages, and expenses in respect of suits, proceedings, demands, judgments,
expenses, and costs, including, without limitation, costs and expenses of
counsel, which WMBfsb may suffer or incur by reason of any of the following: (i)
the breach of any representation, warranty, or agreement of Buyer contained
herein or in any other document to be delivered at Closing, (ii) any state of
facts arising, or act or omission by Buyer occurring, with regard to the Assets
or Liabilities after the Closing Date, (iii) the operations of the Banking
Offices from and after the Closing Date (including, without limitation, any Bank
Secrecy Act violations occurring after Closing, any failure by Buyer to
correctly file or pay tax or tax information with respect to the Assets or
Liabilities after Closing, any act or omission by Buyer in connection with its
acting as a custodian of XXX accounts at the Banking Offices after Closing), or
(iv) any adjustments with respect to Deposit Liabilities made by Buyer pursuant
to the third sentence of Section 2.2.
5.10. Hazardous Substances. Within fifteen days of the date of this
Agreement, WMBfsb will at its expense hire an outside consultant acceptable to
Buyer to determine whether or not there are any underground storage tanks,
asbestos, ureaformaldehyde, polychlorinated biphenyls, solid wastes or hazardous
substances, as defined in the Comprehensive Environmental Response, Compensation
and Liability Act ("CERCLA"), 42 U.S.C. Section 9601 et seq. and Section
00-00-000 et seq. of the Montana Code Annotated, or any other applicable law,
present at any of the Banking Offices or the Real Property. Such investigation
will be conducted in a manner satisfactory to Buyer, and the results of such
investigation will be set forth in written reports delivered to Buyer. The scope
and detail of such reports will be satisfactory to Buyer, which will have
fifteen days from their delivery to accept such reports, which acceptance will
not be unreasonably withheld.
5.11. Further Assurances. From and after the Closing Date, Buyer will
(i) give such further assurances to WMBfsb and will execute, acknowledge, and
deliver all such acknowledgments and other instruments and take such further
action as may be necessary and appropriate to effectively relieve and discharge
WMBfsb from any obligations remaining under the Liabilities assumed by Buyer,
and (ii) use its best efforts to assist WMBfsb in the orderly transition of the
operations of the Banking Offices being acquired by Buyer.
5.12. Notification of Customers; Change of Name.
(a) After all regulatory approvals have been obtained but prior
to the Closing and in compliance with all applicable laws and regulations,
WMBfsb will at its expense prepare and deliver a letter, on WMBfsb's stationery,
in form and substance reasonably satisfactory to
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Buyer, informing customers and depositors of the Banking Offices who have
Deposit Liabilities of the transfer of Assets and Liabilities contemplated by
this Agreement.
(b) Within such period as may be required by applicable law and
regulation but no later than five (5) business days following the Closing Date,
Buyer at its expense will mail to each account holder of a checking, money
market deposit or NOW account: (i) a letter prepared by Buyer, in form
reasonably satisfactory to WMBfsb, notifying such depositor of the transfer of
his or her account to Buyer, requesting that such account holder to cease
writing checks on drafts against WMBfsb's account immediately following receipt
of such letter (or such other period as may be required by applicable law or
regulation) and (ii) check order forms, replacement checks bearing Buyer's
transit and routing number and any other documents to be signed by the account
holder to establish a similar account with Buyer.
(c) Within five (5) business days after Closing, Buyer will at
its expense mail a letter prepared by Buyer, in form reasonably satisfactory to
WMBfsb, to each customer whose Account Loan was transferred to Buyer and
requesting that such customer remit all payments on such Loan to Buyer.
(d) WMBfsb agrees to provide at its expense the necessary and
appropriate customer information to enable Buyer to make the mailings described
in (b) and (c) above. At Buyer's option, WMBfsb agrees to do such mailings prior
to Closing on Buyer's behalf provided that the costs of the mailings will remain
the liability of Buyer.
(e) From and after the Closing Date, Buyer will at its expense as
soon as reasonably practicable change the name on all documents and facilities
relating to the Banking Offices to Buyer's name or to a name which is not
deceptively similar to WMBfsb. Buyer may not use the names "Washington Mutual,"
"Washington Mutual Bank" or any similar name in any way except as may be
necessary to provide notice to customers of the Banking Offices of the
transactions made pursuant to this Agreement.
Nothing in this Section 5.12 requires Buyer to undertake to reissue
deposits or rewrite other documents assumed by or assigned to Buyer on the
Closing Date, except in the ordinary course of business.
5.13. Employees.
(a) WMBfsb shall terminate all Transferred Employees effective as
of the Closing Date. Buyer agrees that it will offer employment to any
Transferred Employee and will employ, effective as of the Closing Date, any
Transferred Employee who accepts such offer of employment. Buyer agrees that it
will pay to any Transferred Employee who is terminated by Buyer other than for
cause within 12 months after Closing severance benefits equal to the greater of
(i) two weeks of such employee's compensation at the time of termination per
full year of employment with WMBfsb, but in no event to exceed 26 weeks, or (ii)
two months of such employee's compensation at the time of his or her
termination. The severance benefits shall be paid no later than the first
regular pay date following the date that any termination is effective.
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Except as expressly stated in the immediately preceding two sentences, nothing
in this section shall be deemed to create or grant to any employee any right to
receive severance benefits.
(b) Buyer agrees that it will pay to each Transferred Employee
during the course of that Transferred Employee's employment with Buyer an annual
compensation no less than the greater of (i) the annual compensation of a
similarly situated Buyer employee performing the same or substantially similar
job, or (ii) that Transferred Employee's annual compensation as of the day
before the Closing Date.
(c) Effective as of the Closing Date, all Transferred Employees
shall become participants in all Buyer's employee benefit plans, practices, and
policies on the same terms and conditions as similarly situated employees of
Buyer. Without limiting the generality of the foregoing, prior service credit
for each Transferred Employee's service with WMBfsb, except as expressly
provided otherwise herein, shall be given by Buyer with respect to all Buyer's
employee benefit plans, practices, and policies. If any of the Transferred
Employee becomes eligible to participate in any Buyer employee benefit plan,
practice, or policy that provides medical, hospitalization or dental benefits,
Buyer shall waive any pre-existing condition exclusions and actively at work
requirements (but shall not waive general requirements of formal employment with
Buyer).
(d) All vacation days accrued and not used by a Transferred
Employee prior to the Closing Date shall be maintained by Buyer after the
Closing Date up to the accrual limit allowed by the WMBfsb's plan. All sick
leave and disability leave accrued and not used by a Transferred Employee prior
to the Closing Date shall be maintained by Buyer after the Closing Date, up to a
maximum of 80 hours. From and after the Closing Date, all vacation time, sick
leave and disability leave shall accrue for Transferred Employees at the same
rate as for similarly situated Buyer employees.
(e) Before the Closing Date, WMBfsb will not recruit or solicit
any Transferred Employee to transfer jobs; provided that it is understood that
WMBfsb may, at any time upon such an employee's initiation, transfer the job or
change the duties of such employee and/or continue to employ such employee
following the Closing Date.
(f) This Section 5.13 shall not be construed to grant any
employee of WMBfsb a contractual right to employment by, or to receive any
payment from, Buyer or WMBfsb or through any employee benefit plan.
5.14. Tax Information and Withholding. All tax information reporting and
filing requirements and all tax withholding requirements with respect to the
Assets and Liabilities are the responsibility of WMBfsb up to the Closing Date
and the responsibility of Buyer thereafter.
5.15. No Solicitation. Neither WMBfsb, nor any of its directors,
executive officers, lawyers, accountants or investment bankers will, directly or
indirectly encourage or solicit proposals or discussions with, or enter into
negotiations with, or provide any information to, any person, entity or group
other than Buyer concerning any sale or assumption of the Assets or Liabilities
or concerning any other possible transaction which would preclude or materially
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adversely affect the ability of WMBfsb to consummate the purchase and assumption
of the Assets and Liabilities contemplated by this Agreement. Neither WMBfsb,
nor any of its directors, executive officers, lawyers, accountants or investment
bankers has taken, since April 15, 1999, any of the actions described in the
first sentence of this Section 5.15.
5.16. Title Insurance. The costs of providing the title insurance
policies described in Section 4.2(d) will be paid for by WMBfsb.
5.17. Damage or Destruction. In the event that prior to Closing there
occurs material physical damage to or destruction of the Banking Offices, then
Buyer will have the option, for a period of 30 days following such damage or
destruction, to terminate this Agreement. In the event that prior to Closing
there occurs material physical damage to or destruction of the Real Property,
then Buyer will have the option, for a period of 30 days following such damage,
either (i) to terminate this Agreement or (ii) to proceed with the transaction
contemplated hereby, in which event Buyer will be entitled to receive and will
be assigned all insurance proceeds payable with respect to the damage or
destruction of such Real Property and WMBfsb will pay over to Buyer any
deductible under the applicable insurance policies. Schedule 7.10 hereto
includes a list of the insurance policies currently in effect for the Real
Property, including the name of the carrier, the amount of coverage and the
expiration date. WMBfsb agrees to keep such policies in place through the
Closing Date.
5.18. Safe Deposit Boxes. Before Closing, WMBfsb will provide to Buyer
access to all leases or other agreements relating to the safe deposit boxes
located in the Banking Offices. From and after the Closing, Buyer will perform
and discharge all of WMBfsb's liabilities with respect to such safe deposit
boxes and the safe deposit business associated therewith, including maintaining
all necessary facilities and providing all necessary services for the use of
safe deposit boxes by the renters thereof, in accordance with the terms and
provisions of the applicable leases or other agreements relating to such boxes,
until such terms and provisions are properly modified by Buyer. Buyer will not
be liable for any actions or the breach of any such lease or other agreement
terms that occurred prior to Closing.
5.19. Customer Solicitation. For three years following Closing, WMBfsb
will not directly or indirectly solicit the depository banking business or the
non residential lending business of any customer of the Banking Offices and will
not use customer information for the purpose of preparing or distributing any
solicitation, marketing, or other materials relating to such depository banking
business or the non residential lending business; provided, however, that this
provision shall not be deemed to prohibit general solicitations not specifically
directed or targeted to customers of the Banking Offices (for the purposes of
this sentence, customers of the Banking Offices do not include customers
included on Schedule 1.14). For three years following Closing, WMBfsb will not
open a branch or lending office within a 10 mile radius of either Banking
Office; provided, however, that this restriction shall not apply in the event
that WMBfsb or an affiliate is acquired by a company that directly or indirectly
owns a branch or lending office within a ten mile radius of either Banking
Branch or in the event that WMBfsb or an affiliate acquires a company that owns
a branch or lending office within a 10 mile radius of either Banking Office,
provided that such branch or lending office comprises only an incidental
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part of such acquired company's business. Notwithstanding the provisions of this
Section 5.19, WMBfsb may solicit without limitation those customers included on
Schedule 1.14 to move their banking business to another branch of WMBfsb or any
affiliate. For the purposes of this Section 5.19, "non-residential lending
business" mean origination of loans other than loans secured by 1-4 family
residences.
5.20. Escrow Agent. WMBfsb and Buyer shall select a mutually acceptable
escrow agent to use in connection with the sale of the Real Property. WMBfsb and
Buyer shall share equally all costs associated with the retention of such escrow
agent.
ARTICLE VI
CLOSING TRANSACTIONS
6.1. Estimate and Payment of Payment Amount.
(a) As of a date agreed to by WMBfsb and Buyer three to six
business days prior to the Closing Date, Buyer and WMBfsb will compute an amount
(the "Estimated Amount") equal to what the Payment Amount would be on such date.
(b) At Closing, WMBfsb will deliver and pay to Buyer the
Estimated Amount in immediately available funds.
(c) The Payment Amount will be calculated in the manner set forth
in Article 12 and post-closing adjustments and transactions will be handled as
set forth in Article 12.
6.2. Documents, Instruments, Certificates, Etc. to be Delivered by
WMBfsb at the Closing. At the Closing, WMBfsb will deliver to Buyer:
(a) Deeds substantially in the form of Exhibit B hereto for the
Real Property;
(b) Assignments and Assumption Agreements substantially in the
form of Exhibit C hereto for all Assumed Contracts and the Deposit Liabilities;
(c) Originals of all tenant files, including original Real
Property leases;
(d) All notes and security agreements relating to Account Loans
and a proper endorsement and assignment thereof;
(e) Bills of Sale and Assumption Agreements substantially in the
form of Exhibit D hereto for all other personal property Assets;
(f) Copies of the Charter and By-laws of WMBfsb certified by
WMBfsb's Secretary or Assistant Secretary;
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(g) Certificates signed by duly authorized officers of WMBfsb to
the effect that:
(i) The warranties and representations of WMBfsb are
materially true (without reference to any materiality standard therein) as of
the Closing Date as if made on the Closing Date or, if any such warranties and
representations are not then true, specifying the deficiency in reasonable
detail; and
(ii) The covenants of WMBfsb to be performed on or before
the Closing Date have been performed in all material respects (without reference
to any materiality standard therein) or, if any such covenants have not been so
performed, specifying the deficiency in reasonable detail;
(h) Resolutions of WMBfsb, certified by its Secretary or
Assistant Secretary, authorizing the execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby;
(i) Title insurance policies dated the date of Closing providing
owner's standard coverage and, at Buyer's sole option provided Buyer pays for
any additional expense thereof, including without limitation the cost of any
survey required, a survey endorsement issued in the name of Buyer insuring that
Buyer has valid title to the Real Property, free of all liens and encumbrances
except those not disapproved by Buyer, including without limitation current
taxes not delinquent, printed exceptions generally contained in any extended
coverage owner's policy of title insurance, rights of government entities to
make cuts and fills in connection with construction and/or maintenance of any
public roadways adjoining the Real Property and easements and reservations of
record which do not materially adversely affect the portion of the Real Property
on which the improvements are erected and which do not, in the reasonable
discretion of Buyer, materially adversely interfere with the current use of any
other portion of the Real Property;
(j) Such other documents, instruments and certificates as Buyer
or its counsel may reasonably request.
6.3. Instruments, Documents, Certificates, Etc. to be Delivered by Buyer
at the Closing. At the Closing, Buyer will deliver to WMBfsb:
(a) Certificates signed by duly authorized officer of Buyer to
the effect that:
(i) The warranties and representations of Buyer are
materially true (without reference to any materiality standard therein) as of
the Closing Date or, if any such warranties and representations are not then
true, specifying the deficiency in reasonable detail; and
(ii) The covenants of Buyer to be performed on or before
the Closing Date have been performed in all material respects (without reference
to any materiality standard
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therein) or, if any such covenants have not been so performed, specifying the
deficiency in reasonable detail;
(b) Resolutions of Buyer, certified by its Secretary or Assistant
Secretary, authorizing the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby;
(c) A certified copy of the Charter and By-laws of Buyer; and
(d) Such other documents, instruments and certificates as WMBfsb
or its counsel may reasonably request.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES OF WMBfsb
To induce Buyer to enter into this Agreement, WMBfsb hereby represents
and warrants to Buyer as follows:
7.1. Organization. WMBfsb is a stock savings association duly organized
and validly existing under the laws of the United States and is authorized to
conduct the business of a federal savings association under applicable laws.
7.2. Authority. WMBfsb has the corporate power and authority to enter
into and perform its obligations under this Agreement. This Agreement and the
execution and delivery of this Agreement, and performance of the obligations
hereunder, have been approved by the Board of Directors of WMBfsb and this
Agreement constitutes a valid and binding obligation of WMBfsb, enforceable in
accordance with its terms, subject as to enforcement, to bankruptcy, insolvency,
reorganization, and other laws of general applicability relating to or affecting
creditors' rights, and to general equity principles. No approval of its
shareholder is required in connection with the transaction contemplated by this
Agreement.
7.3. Legal Proceedings. There are no material actions, suits, or
proceedings pending or, to the knowledge of WMBfsb, threatened against or
affecting the Assets or the Liabilities. WMBfsb has not received notice from any
governmental agency, instrumentality or department of the United States, the
State of Montana or any other state indicating that it would oppose or not grant
or issue its consent or approval, if required, with respect to the transactions
contemplated by this Agreement.
7.4. Finders or Brokers. WMBfsb has not engaged or employed a broker or
finder in connection with this Agreement or the transactions contemplated.
7.5. Compliance with Applicable Law. WMBfsb holds and has at all times
held all licenses, certificates, franchises, permits and other governmental
authorizations necessary for the
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lawful conduct of the business and operations of the Banking Offices, and such
licenses, certificates, franchises, permits and other governmental
authorizations are in full force and effect and WMBfsb is in all material
respects complying therewith.
7.6. Real Property.
(a) WMBfsb has, and on the Closing Date will have, good and
marketable title in fee simple to the Real Property, free and clear of all
liens, encumbrances, and charges, (i) except current taxes not delinquent,
printed exceptions generally contained in any owner's extended coverage policy
of title insurance, rights of government entities to make cuts and fills in
connection with construction and/or maintenance of any public roadways adjoining
the Real Property and easements and reservations of record which do not affect
the portion of the Real Property on which the improvements are erected and which
do not, in the sole discretion of Buyer, interfere with its intended use of any
other portion of the Real Property; provided, however, that all financial liens,
encumbrances or charges other than those described in (i) will have been removed
prior to Closing.
(b) To WMBfsb's knowledge, the Real Property is properly zoned
with proper access so as to permit the operation of a banking business in the
manner currently being conducted.
(c) There are no leases, subleases, licenses or similar
agreements permitting any party, whether affiliated or not affiliated with
WMBfsb, to lease, use or occupy space in either of the Banking Offices or in the
Real Property, except as described on Schedule 7.6(c). There are no outstanding
options to purchase or similar agreements with respect to the Real Property.
(d) WMBfsb makes no representations or warranties with respect
to, and shall have no liability for: (i) the condition of the Real Property or
any buildings, structures or improvements located on the Real Property or the
suitability of the property for habitation or for Buyer's intended use or for
any use whatsoever; (ii) any applicable building, zoning or fire laws or
regulations or with respect to compliance therewith or with respect to the
existence of or compliance with any required permits, if any, of any
governmental agency; (iii) the availability or existence of any water, sewer or
utilities, any rights thereto, or any water, sewer or utility districts; (iv)
access to any public or private sanitary sewer system; or (v) the presence of
any hazardous substances in any improvements on the Real Property, including
without limitation asbestos or urea-formaldehyde, or the presence of any
environmentally hazardous wastes or materials on or under the Real Property.
Without limiting the generality of the foregoing, WMBfsb shall have no liability
to Buyer with respect to the condition of the Real Property under common law, or
any federal, state, or local law or regulation, including but not limited to the
Comprehensive Environmental Response, Compensation and Liability Act of 1980 as
amended, 42 U.S.C.A. sections 9601 et seq. and Buyer hereby releases and waives
any and all claims which the Buyer has or may have against the WMBfsb under any
such laws or with respect to the condition of the Real Property. Buyer
acknowledges to WMBfsb that Buyer is given the opportunity under this agreement
to fully inspect the Real Property and Buyer assumes the
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responsibility and risks of all defects and conditions, including such defects
and conditions, if any, that cannot be observed by casual inspection. Without
limiting the generality of the foregoing, by closing the transaction as
contemplated herein, Buyer agrees that: (i) Buyer shall be deemed to have
accepted all risk associated with adverse physical characteristics and existing
environmental conditions that may or may not have been revealed by Buyer's
investigation of the Real Property or any reports provided or made available to
Buyer, and (ii) as between WMBfsb and Buyer, Buyer shall be deemed to have
accepted all costs and liabilities associated in any way with the physical and
environmental condition of the Real Property. Buyer acknowledges and agrees that
WMBfsb makes no representations or warranties regarding the truth, accuracy or
thoroughness of the investigation, preparation or content of any such reports,
or the competence or ability of the persons or companies preparing such reports.
Buyer agrees that, by closing the transaction contemplated herein, Buyer will
have had an opportunity to review such reports prior to the closing date in
order to make an independent verification of the information contained therein,
and that Buyer and its environmental consultants will have had an opportunity to
conduct tests on the Real Property
7.7. Title to Personal Property. WMBfsb has, and on the Closing Date
will have, good and marketable title to the machinery, equipment, materials,
supplies, and other property of every kind, tangible or intangible, included
among the Assets free and clear of all liens, encumbrances, and charges, except
for those shown in Schedule 2.1.
7.8. Taxes. All tax information reporting and filing requirements and
all other requirements relating to tax returns and reports with respect to the
business or operations of the Banking Offices or the Assets or the Liabilities
have been complied with by WMBfsb as of the date hereof and will have been
complied with as of Closing except for tax returns not yet due (including
appropriately filed extensions) and with respect to which WMBfsb agrees that the
returns will be timely filed.
7.9. Non-Contravention. The execution and delivery of this Agreement by
WMBfsb does not, and subject to the receipt of the aforementioned approvals and
consents, the consummation of the transactions contemplated hereby by them will
not, constitute (i) a breach or violation of or default under any law, rule, or
regulation, or any judgment, decree, order, governmental permit, or license, or
agreement, indenture, or instrument to which WMBfsb is subject, which breach,
violation, or default would have a material and adverse effect on the Assets or
the Liabilities; or (ii) a breach or violation of or a default under the Charter
or By-Laws of WMBfsb. The consummation of the transactions contemplated hereby
will not require any consent or approval under any such law, rule, regulation,
judgment, consent, decree, order, governmental permit, or license or the consent
or approval of any other party to any such agreement, indenture, or instrument
other than those referred to in Section 4.1 and the required approvals of the
applicable regulatory authorities.
7.10. Insurance. Schedule 7.10 contains a true and complete list and a
brief description (including name of insurer, agent, annual premiums, coverage
and expiration date) of all insurance policies in force with respect to the
Assets and Liabilities. WMBfsb is in compliance with all provisions of such
insurance policies and is not in default under any of the terms thereof.
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Each such policy is outstanding and in full force and effect and, except as set
forth an Schedule 7.10, WMBfsb is the sole beneficiary of such policies. All
premiums and other payments due under or on account of any such policy have been
paid.
7.11. Account Loans.
(a) Each of the Account Loans is current as to payment of
interest and principal (i.e., not more than twenty-nine (29) days past due), and
will not have been more than twenty-nine (29) days past due at any time within
the last twelve months.
(b) Each of the Account Loans (other than an Overdraft Loan) is
secured by a valid, and prior lien on the account or accounts serving as
security therefor and the balance in such account or accounts exceeds all
amounts owing on such Account Loan.
(c) The documentation for each Account Loan, including customer
disclosure for such Account Loans, is correct and complete to the extent that
all files contain properly executed notes and security agreements (in the case
of Account Loans) and comply with all applicable laws and regulations, including
but not limited to applicable usury statutes, affecting the ability to collect
principal and interest on such loans.
(d) The Account Loans meet the requirements set by the Office of
Thrift Supervision ("OTS") and any other applicable regulator for investments by
a savings association.
(e) The terms of the Account Loans have not been impaired,
waived, altered or modified in any respect except by a written instrument or
instruments, a copy of which is contained in the relevant loan file.
(f) None of the Account Loans is subject to any right of
rescission, set-off, counter-claim or defense and, except as previously
disclosed in writing to Buyer, no such rights or defenses have been asserted
with respect thereto.
7.12. FDIC Insurance. The Deposit are insured by the FDIC to the extent
permitted by applicable law.
7.13. Employment Agreements. Except as disclosed on Schedule 1.4, none
of the Transferred Employees are party to any written employment or deferred
compensation agreement with WMBfsb or any affiliate.
7.14. Safe Deposit Boxes. WMBfsb is in compliance with the terms and
conditions of the applicable leases or other agreements relating to the safe
deposit boxes located in the Banking Offices.
7.15. Representations Complete. No representation or warranty by WMBfsb
in this Agreement or any certificate delivered pursuant hereto contains any
untrue statement of a material fact or omits to state any material fact
necessary to make such representation or warranty not misleading.
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7.16. Time of Representations. Each of the representations and
warranties by WMBfsb in this Agreement are, except as otherwise specifically
stated, made as of the date hereof. It is a condition to Buyer's obligations
hereunder that such representations and warranties will be true and correct in
all material respects (without reference to any materiality standard therein) as
of Closing, and WMBfsb will at Closing deliver the certificate described in
Section 6.2(h)(i) (it being understood that the condition that the
representations and warranties will be true and correct as of Closing will not
be affected by the provision in Section 6.2(h)(i) stating that, if any
representation or warranty is not true, WMBfsb must specify the deficiency).
7.17. Survival. All representations and warranties made in this
Agreement by WMBfsb will survive one year after the Closing Date.
ARTICLE VIII
REPRESENTATIONS AND WARRANTIES
OF BUYER
To induce WMBfsb to enter into this Agreement, Buyer hereby represents
and warrants to WMBfsb as follows:
8.1. Organization. Buyer is duly incorporated, validly existing and in
good standing as a state banking corporation under the laws of the State of
Montana.
8.2. Authority. Buyer has the corporate power and authority to carry on
its business as it is now being conducted, and has full corporate power and
authority to enter into and perform this Agreement. This Agreement and the
execution and delivery of this Agreement has been approved by the Board of
Directors of Buyer and this Agreement constitutes a valid and binding obligation
of Buyer, enforceable in accordance with its terms, subject as to enforcement,
to bankruptcy, insolvency, reorganization, and other laws of general
applicability relating to or affecting creditors' rights, and to general equity
principles. No approval of its shareholders is required in connection with the
transactions contemplated by this Agreement.
8.3. Non-Contravention. The execution and delivery of this Agreement by
Buyer does not, and subject to the receipt of the aforementioned approvals and
consents, the consummation of the transactions contemplated hereby by Buyer will
not constitute (i) a breach or violation of or default under any law, rule, or
regulation, or any judgment, decree, order, governmental permit, or license, or
agreement, indenture, or instrument to which Buyer is subject, which breach,
violation, or default would have a material and adverse effect on the Assets or
Liabilities; or (ii) a breach or violation of or a default under the Charter or
By-Laws of Buyer. The consummation of the transactions contemplated hereby will
not require any consent or approval under any such law, rule, regulation,
judgment, decree, order, governmental permit, or license or the consent or
approval of any other party to any such agreement, indenture, or instrument
other than those referred to in Section 4.1 and the required approvals of the
applicable regulatory authorities.
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8.4. Legal Proceedings. There are no material actions, suits, or
proceedings pending or, to the knowledge of Buyer, threatened against or
affecting Buyer which would prevent its fulfilling its obligations under this
Agreement. Buyer has not received notice from any governmental agency,
instrumentality or department of the United States, the State of Montana or any
other state indicating that it would oppose or not grant or issue its consent or
approval, if required, with respect to the transactions contemplated by this
Agreement.
8.5. Finders or Brokers. Except as disclosed on Schedule 8.5, Buyer has
not engaged or employed a broker or finder in connection with this Agreement or
the transaction contemplated hereunder.
8.6. Representations Complete. No representation or warranty made or
given by Buyer in this Agreement or any certificate delivered pursuant hereto
contains any untrue statement of material fact or omits to state any material
fact necessary to make such representation or warranty not misleading.
8.7. Time of Representations. Each of the representations and warranties
by Buyer in this Agreement are, except as otherwise specifically stated, made as
of the date hereof. It is a condition to WMBfsb's obligations hereunder that
such representations and warranties will be true and correct in all material
respects (without reference to any materiality standard therein) as of Closing
and Buyer will at Closing deliver the certificate described in Section 6.3(a)(1)
(it being understood that the condition that the representations and warranties
will be true and correct as of Closing will not be affected by the provision in
Section 6.3(a)(1) stating that, if any representation or warranty is not true,
Buyer must specify the deficiency).
8.8. Survival. All representations and warranties made in this Agreement
by Buyer will survive one year after the Closing Date.
ARTICLE IX
INDEMNIFICATION
9.1. Indemnity Procedures. Promptly upon receipt of notice of any claim,
demand, or assessment or the commencement of any suit, action, or proceeding in
respect of which indemnity may be sought on account of an indemnity contained in
Section 5.8 or 5.9, the party seeking indemnification (the "Indemnitee") will
give notice thereof to the party from whom indemnification is sought (the
"Indemnitor"), within sufficient time to enable the Indemnitor to respond to
such claims or answer or other plea in such action. The omission of such
Indemnitee so to notify promptly the Indemnitor of any such claim, demand,
assessment, suit, action, or proceeding will not relieve such Indemnitor from
any liability which it may have to such Indemnitee in connection therewith on
account of the indemnity contained in Section 5.8 or 5.9 unless and only to the
extent that the Indemnitor is prejudiced thereby. In the event any claim,
demand, or assessments will be asserted or suit, action, or proceeding commenced
against an Indemnitee, the Indemnitee will notify the Indemnitor of the
commencement thereof, and the Indemnitor will be entitled to participate therein
and, to the extent that it may elect to do so, to assume the defense, conduct,
or settlement thereof, using counsel approved by the Indemnitee,
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which approval will not unreasonably be withheld. After notice from the
Indemnitor to the Indemnitee or its election so to assume the defense, conduct,
or settlement thereof, the Indemnitor will not be liable to the Indemnitee for
any legal or other expenses subsequently incurred by the Indemnitee in
connection with such defense, conduct, or settlement. The Indemnitee will (i)
cooperate with the Indemnitor in connection with any such claim, demand,
assessment, suit, action, or proceeding; (ii) make personnel, books, and records
relevant thereto available to the Indemnitor; and (iii) grant such
authorizations or powers of attorney to the agents, representatives and counsel
of the Indemnitor as such Indemnitor may reasonably consider desirable and as
such Indemnitee may reasonably consider necessary in connection therewith.
9.2. Liability Thresholds. Notwithstanding anything in this Article to
the contrary, no amount will be payable pursuant to this Article unless and
until the aggregate indemnified losses asserted against the Indemnitor under
this Article equals or exceeds $25,000 (the "Liability Threshold"). Once the
Liability Threshold for the Indemnitor is reached, the Indemnitee will be
entitled to the benefit of this indemnity to the extent of any and all losses
above the Liability Threshold.
9.3. Claims Survival Period. Notwithstanding any other provision herein,
no claim may be asserted under this Agreement unless the Indemnitee gives the
other party notice of such claim before the end of one year after the Closing
Date; provided, that where notice of such claim has been timely given, such
claim will survive beyond one year after the Closing Date.
9.4. Exclusive Remedy. If the transaction closes, the rights of
indemnification of either party under this Article will be the exclusive remedy
as to any matters addressed in this Agreement. Prior to the Closing, the rights
of the parties set forth in Article 10 will be the exclusive remedies of the
parties as to the matters addressed therein.
9.5. Subrogation. Following indemnification as provided for hereunder,
the Indemnitor will be subrogated to all rights of the Indemnitee with respect
to all persons relating to the matter for which indemnification has been made.
9.6. Insured Losses. Notwithstanding any other term or provision of this
Agreement, the Indemnitor will not be required to indemnify the Indemnitee for a
loss to the extent that the Indemnitee receives insurance payments covering such
loss; provided, that this provision would not result in the loss of, or a
requirement to repay, such insurance by the Indemnitee. In the event that
insurance is not paid to the Indemnitee to cover the full amount of the loss,
the Indemnitor will remain liable for the difference between the insurance
payment as described above and the amount of the loss.
9.7. Arbitration. Any controversy or claim between or among WMBfsb and
Buyer, including but not limited to those arising out of or relating to this
Agreement or any related agreements or instruments, including any claim based on
or arising from an alleged tort, will be determined by arbitration in accordance
with Title 9 of the U.S. Code and the Commercial Arbitration Rules of the
American Arbitration Association ("AAA"). All statutes of limitations which
would otherwise be applicable will apply to any arbitration proceeding under
this paragraph. Judgment upon the award rendered may be entered in any court
having jurisdiction.
9.8. Survival. This Article will survive the Closing.
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ARTICLE X
TERMINATION
10.1. Termination of Agreement. This Agreement will terminate and be of
no further force or effect as between the parties hereto, except as to the
liability for breach of any material covenant, agreement, representation, or
warranty occurring or arising prior to the date of termination, upon the
occurrence of any of the following:
(a) Immediately upon the expiration of thirty (30) days from the
date that WMBfsb has given notice to Buyer of a breach or default by Buyer in
the performance of any covenant, agreement, representation, warranty, duty, or
obligation hereunder, provided, however, that no such termination will be
effective if, within such thirty (30) day period, Buyer will have substantially
corrected and cured to WMBfsb's reasonable satisfaction the grounds for
termination as set forth in such notice of termination or WMBfsb will have
waived such default or breach or will have extended the time for such cure;
(b) Immediately upon the expiration of thirty (30) days from the
date that Buyer has given notice to WMBfsb of a breach or default by WMBfsb in
the performance of any covenant, agreement, representation, warranty, duty, or
obligation hereunder, provided, however, that no such termination will be
effective if, within such thirty (30) day period, WMBfsb will have substantially
corrected and cured to Buyer's reasonable satisfaction the grounds for
termination as set forth in such notice of termination or Buyer will have waived
such default or breach or will have extended the time for such cure;
(c) By the either Buyer or WMBfsb if the Closing has not occurred
on or before December 31, 1999, or
(d) By Buyer as provided in Section 5.17.
10.2. Immaterial Breach. Notwithstanding anything to the contrary
contained herein, no party hereto will have the right to terminate this
Agreement on account of its own breach or because of any immaterial breach by
the other party hereto of any covenant, agreement, representation, warranty,
duty, or obligation hereunder.
10.3. Waiver of Right to Terminate. Any party may, at its election,
waive in writing any of its respective rights to terminate this Agreement under
the foregoing provisions of this Article 10, and the parties will be deemed to
have waived such rights from and after the Closing Date even though actual
settlement may have been delayed pursuant to the provisions of Article 12 or
otherwise.
10.4. Effect of Termination. Except as otherwise provided in this
Agreement, in the event of termination of this Agreement, each party is
responsible for its own expenses and neither party will be liable in damages to
the other unless termination results from the breach or default of this
Agreement by one of the parties. Except as may be otherwise provided in this
Agreement, if the transaction contemplated by this Agreement fails to close
because of the
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breach of any material covenant, agreement, representation, warranty, duty or
obligation hereunder occurring or arising prior to the date of termination and
if such breach arises out of a state of facts not reasonably within the control
of the breaching party, then the breaching party will be liable to the other
party for the other party's out-of-pocket expenses and costs, including
attorneys' fees, but will not otherwise have liability for damages.
ARTICLE XI
EFFECT ON THIRD PARTIES
Except as otherwise provided by law, neither the rights of creditors and
depositors of WMBfsb, nor any liability or obligation for payment of money, nor
any claim or cause of action against WMBfsb will be in any manner released or
impaired by this Agreement or by the transactions contemplated hereunder, and
the rights and obligations of all creditors and depositors and of all other
persons will remain unimpaired, but Buyer will succeed to all such obligations
and liabilities which are actually included among the Liabilities as of the
Closing Date and will be liable from then and thereafter to pay, discharge, and
perform all such liabilities and obligations of WMBfsb assumed pursuant to this
Agreement and in connection with the transactions contemplated hereunder in the
same manner as if Buyer had itself incurred the liabilities or obligations, and
Buyer will succeed to all of the rights, offsets, and defenses of WMBfsb in
connection therewith.
ARTICLE XII
SETTLEMENT, ADJUSTMENTS AND TRANSITIONAL MATTERS
12.1. Post-Closing Calculations and Settlements. Within fifteen (15)
calendar days following the Closing Date, Buyer and WMBfsb will compute the
amount of the Payment Amount according to the provisions of Section 3.1, and if
the actual Payment Amount is different from the Estimated Amount calculated as
provided in Section 6.1, then Buyer (if the Estimated Amount exceeds the Payment
Amount) or WMBfsb (if the Payment Amount exceeds the Estimated Amount) will
immediately pay such excess amount in immediately available to the other party,
together with interest on such excess from the Closing Date to the date of
payment at a simple per annum rate, without any compounding, at the effective
federal funds rates (based on the average of the closing bid and offered
quotations) as published daily by the Wall Street Journal. Any additional
payments or adjustments arising out of this Agreement may be computed and paid,
with interest calculated pursuant to this Section 13.1, in subsequent
settlements by mutual agreement of the parties.
12.2. Disputes as to Calculations. Buyer and WMBfsb agree to use their
best efforts to agree on the calculation of the Payment Amount. In the event
that the parties should fail to agree on either calculation, the parties agree
to refer the matters in dispute with respect to such calculations to an
independent firm of certified public accountants of national standing reasonably
acceptable to Buyer and WMBfsb, and Buyer and WMBfsb agree to be bound by the
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determination of such firm with respect to the disputed matter relating to the
calculation of the Payment Amount. Buyer and WMBfsb agree to share equally the
fees and charges of such accounting firm for its services in resolving such
dispute. If in the resolution of the dispute, it is determined that one party
owes an amount to the other party, the paying party will also pay interest on
such amount from the date it should have been paid to the date of payment at the
same rate as provided in Section 12.1.
12.3. Check Processing and Reimbursements. For a period of 60 calendar
days after the Closing Date, WMBfsb will continue to process and pay checks or
drafts drawn on checking accounts, NOW accounts and money market deposit
accounts drawn on accounts transferred to Buyer pursuant to this Agreement, and
Buyer will reimburse WMBfsb for the amount of funds paid on such checks or
drafts as herein provided. During such 60 calendar day period, WMBfsb or its
servicing agent will transmit to Buyer by 2:30 p.m. each day a report of all
such checks or drafts for such day, and Buyer will pay WMBfsb the amount of such
checks and drafts by the close of business of such day by means of a wire
transfer from Buyer's account to WMBfsb's account; WMBfsb will provide Buyer
with wiring instructions at or prior to Closing. During such 60 calendar day
period, WMBfsb or its servicing agent will place all such checks or drafts
received for collection on Deposit Accounts into the possession of a courier for
delivery to Buyer by the morning of the second business day following such
receipt. Buyer will be responsible for determining if each such check or draft
delivered is properly payable. If any such check or draft is not properly
payable, Buyer may dishonor such check or draft and return it to WMBfsb, which
will return such check or draft to the Federal Reserve Bank with jurisdiction
over WMBfsb and Buyer for credit to WMBfsb's account. WMBfsb will be obligated
to reimburse Buyer for such amount, and it is agreed that Buyer may deduct the
amount of any returned check or draft from its next daily transfer of funds.
However, WMBfsb will have no obligation to reimburse Buyer in the event its
account at the Federal Reserve Bank is not so credited, and, in such an event,
Buyer will be obligated to pay back to WMBfsb the amount it had previously
deducted pursuant to the preceding sentence. After the 60 calendar day period,
WMBfsb will not accept any such checks and such checks will be returned marked
"Account number not properly formatted." Any additional charges by WMBfsb's
servicing agent in order to comply with this Section 12.3 will be shared equally
between Buyer and WMBfsb.
12.4. ACH Transactions. With respect to the direct pay and automated
clearing house transactions requested by customers of the acquired branches
after the Closing Date, Buyer agrees to use its best efforts to notify, within
30 days after Closing, the appropriate Federal Reserve Bank to redirect such
direct pay and automated clearing house transactions from WMBfsb to Buyer.
WMBfsb agrees that for a period of three months following the Closing Date it
will effectuate such requests in the same manner and with the same diligence as
it would have prior to the Closing Date. WMBfsb agrees to provide Buyer with the
daily detail necessary for Buyer to timely credit or debit the customer's
account and to allow Buyer to send Notifications of Changes. WMBfsb and Buyer
agree to a timely net daily settlement of these transactions. At the end of such
period of three months, WMBfsb will discontinue accepting and forwarding ACH
entries and funds and return them to the originators marked "Account Closed."
The parties may agree to other procedures to handle ACH transactions.
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12.5. Returned Items. With respect to any items that are credited as of
the Closing Date to an account being transferred to Buyer pursuant hereto that
are returned unpaid ("Returned Item"), and if there are sufficient funds in the
account to which such Returned Item was credited or any other accounts on
deposit at the Banking Offices of Buyer standing in the name of the party liable
for such Returned Item, and if Buyer has a right of charge-back against the
account to which such Returned Item was credited or a right of set-off against
such other accounts in respect of the charge-back, Buyer will debit any or all
of such accounts an amount equal in the aggregate to the Returned Item and will
repay that amount to WMBfsb, reduced, however, by the amount of the Premium, if
any, attributable to such Returned Item. If the charge-backs or set-offs do not
provide sufficient funds for such purposes, Buyer will have no obligation to
repay WMBfsb the amount of such deficiency unless and until Buyer obtains
reimbursement from the party liable for the Returned Item. Buyer will use
commercially reasonable efforts to obtain such reimbursement.
12.6. Overdraft Loans. WMBfsb agrees that in the event that Buyer has
not received any amounts owing on Overdraft Loans within 60 calendar days after
Closing, then, at Buyer's request WMBfsb will pay to Buyer the aggregate amount
owing on such Overdraft Loans and Buyer will reassign to WMBfsb all right, title
and interest in such Overdraft Loans.
12.7. Records and Financial Information. The party having control of the
relevant records and financial information used in connection with any
adjustment provided for in this Article 12 will certify the accuracy of such
record and financial information if so requested by the other party.
ARTICLE XIII
MISCELLANEOUS
13.1. Expenses. Except as is otherwise specifically provided in this
Agreement, whether the Closing takes place or whether this Agreement is
terminated, each party will pay its own costs and expenses in connection with
this Agreement and the transactions contemplated hereby, including, but not by
way of limitation, all regulatory fees, attorneys' fees, accounting fees and
other expenses.
13.2. Notices. All notices, demands, and other such communications
hereunder must be in writing and will be deemed to have been duly given if
delivered in person or by Federal Express or similar overnight courier service,
fees prepaid, or otherwise actually delivered, as follows:
(a) If to WMBfsb, to:
Washington Mutual Bank
The Washington Mutual Tower
0000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxxx
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with copy to:
Xxxxxx Xxxxxx White & XxXxxxxxx
0000 Xxxxxxxx Xxxxxx
000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxxx
(b) If to Buyer, to:
Glacier Bank
000 Xxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
with copy to:
Xxxxxx & Xxxx PC
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxx
The persons or addresses to which deliveries will be made may change
from time to time by notice given pursuant to the provisions of this Section
13.2.
13.3. Successors and Assigns. All terms and provisions of this Agreement
will be binding upon and inure to the benefit of the parties hereto and their
respective transferees, successors, and assigns, provided, however, that this
Agreement and all rights, privileges, duties, and obligations of the parties
hereto may not be assigned or delegated by either party hereto prior to the day
after the Closing Date without the written consent of the other party to this
Agreement and provided further that in case of any such assignment or
delegation, the party assigning or delegating also will remain responsible as a
party hereto.
13.4. Third-Party Beneficiaries. Each party hereto intends that this
Agreement does not benefit or create any right or cause of action in or on
behalf of any person other than the parties hereto (except for Section 5.13,
which is intended to benefit third party beneficiaries).
13.5. Counterparts. This Agreement may be executed in one or more
counterparts, all of which taken together constitute one instrument.
13.6. Governing Law. This Agreement is made and entered into in the
State of Washington, and the laws of that State govern the validity and
interpretation hereof and the performance of the parties hereto of their
respective duties and obligations hereunder, except that the laws of the State
of Montana govern the validity and interpretation of all matters concerning real
property.
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13.7. Captions. The captions contained in this Agreement are for
convenience of reference only and do not constitute a part of this Agreement.
13.8. Entire Agreement; Limitations. The making, execution, and delivery
of this Agreement by the parties hereto have been induced by no representations,
statements, warranties, or agreements other than those herein expressed. This
Agreement (including exhibits and schedules hereto) embodies the entire
understanding of the parties and supersedes any prior agreements or
understandings, and there are no further or other agreements or understandings,
written or oral, in effect between the parties relating to the subject matter
hereof, except for the Confidentiality Agreement, which remains in full force
and effect. This instrument and the agreements contained herein may be amended
or modified only by an instrument of equal formality signed by the parties or
their duly authorized agents.
13.9. Confidentiality. The undertakings in Section 5.1 with regard to
confidentiality will survive termination of this Agreement and the Closing. It
is understood and agreed that this Agreement (including schedules and exhibits)
will be filed with certain regulators.
13.10. Press Releases. No press release will be issued relating to the
transactions contemplated by this Agreement without prior approval of WMBfsb and
Buyer. However, either WMBfsb or Buyer may issue at any time any press release
it believes, on the advice of its counsel, it is obligated to issue to avoid
liability under any law relating to disclosures, but the party issuing such a
press release will make every reasonable effort to give the other party prior
notice and an opportunity to participate in such release and any press release
must conform to the confidentiality provisions of Section 13.9. It is understood
and agreed that certain public notices must be made in connection with
regulatory approval of the transaction contemplated by this Agreement. Buyer
will be permitted to meet with the Transferred Employees prior to the issuance
of any press releases.
13.11. Attorneys' Fees. In the event of any suit, action or proceeding
arising out of or in connection with this Agreement (other than a dispute
referred to an accounting firm as provided in Section 12.2), the prevailing
party will be entitled to its costs, expenses and reasonable attorneys' fees
incurred in connection with such suit, action or proceeding and on appeal.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first above written.
WASHINGTON MUTUAL BANK fsb
By: /s/ Xxxxx X. Xxxxxxxxxx
-------------------------------------
Its: Senior Vice President
------------------------------
GLACIER BANK
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------
Its: Chief Executive Officer
------------------------------
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EXHIBIT A
ESTOPPEL CERTIFICATE
THIS IS TO CERTIFY THAT:
1. The undersigned is the Tenant under that certain Lease dated __________,
("Lease") by and between _______________ as Lessor ("Landlord") and Tenant,
demising certain premises commonly known and designated as
_______________________ _________ ("Premises").
2. The Lease has not been modified, changed, altered, assigned, supplemented or
amended in any respect except as indicated below (if none, state "None"):
________________________________________________________________________________
________________________________________.
3. The current monthly rent is $___________.
4. Tenant has paid rent for the Premises for the period up to and including
_____________, 199____. No such rent (not including security deposit) has been
paid more than one (1) month in advance of its due date, except as indicated
below, (if none, state "None") _________________________________________________
_______________________________________________________________________________.
5. The expiration date of the Lease is ________________________, 20__.
6. Tenant has made a security deposit of $______________________.
7. To Tenant's knowledge, Landlord is not currently in default under the Lease
beyond any applicable grace periods, except as indicated below (if none, state
"None"):________________________________________________________________________
____________________________________________________________.
8. Tenant has received no notice from Landlord that Tenant is in default under
the Lease, except as indicated below (if none, state "None"):___________________
____________________________.
9. The address for notice to be sent to Tenant is as follows:
_____________________________
_____________________________
Attn: _____________________________
10. The undersigned is authorized to execute this Certificate on behalf of
Tenant.
By:_______________________________________
Its:______________________________________
Date: ____________________________________
X-0
00
XXXXXXX X
XXXXXXXX DEED
For Value Received, WASHINGTON MUTUAL BANK fsb, a federally chartered
savings association, of 0000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000, the
Grantor, does hereby grant, bargain, sell and convey unto GLACIER BANK, a
Montana chartered banking corporation, of 000 Xxxx Xxxxxx, Xxxxxxxxx, XX 00000,
the Grantee, the following described real property, in Silver Bow County, State
of Montana, to-wit:
[See attached Exhibit A]
SUBJECT TO encumbrances of record.
TO HAVE AND TO HOLD the said premises, with their appurtenances unto the
said Grantee, and to its successors and assigns, forever. And the said Grantor
does hereby covenant to and with the said Grantee, that it is the owner in fee
simple of said premises; that said premises are free from all encumbrances
suffered by Grantor and that it will warrant and defend the same from all lawful
claims by any person claiming or to claim by, through or under Grantor, and not
otherwise.
IN WITNESS WHEREOF, the Grantor has caused its name to be hereunto
subscribed by its ________________________this _____ day of __________, 1999.
WASHINGTON MUTUAL BANK fsb
By: ____________________________________
STATE OF WASHINGTON )
) SS.
COUNTY OF KING )
On this _____ day of _______, 1999, before me, the undersigned, a Notary
Public for the State aforesaid, personally appeared
________________________________, known to me to be the ____________________ of
WASHINGTON MUTUAL BANK fsb, a federally chartered savings association, the
association that executed the foregoing instrument, and acknowledged to me that
such association executed the same.
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IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial
Seal the day and year in this certificate last above written.
________________________________________
Notary Public for the State of _________
Residing at ___________________________
My Commission expires ________________
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EXHIBIT C
ASSIGNMENT AND ASSUMPTION AGREEMENT
This Assignment and Assumption Agreement is entered into as of the _____
day of ______________________, 1999, by and between WASHINGTON MUTUAL BANK fsb
("WMBfsb") and GLACIER BANK ("Buyer").
WMBfsb and Buyer are parties to that certain Purchase and Assumption
Agreement dated May ___, 1999 (the "Purchase Agreement") pursuant to which
WMBfsb agreed to sell to Buyer and Buyer agreed to purchase from WMBfsb, certain
real and personal property in connection with the business of WMBfsb's two
branch banking offices in Butte, Montana (the "Branches"). In connection
therewith, Buyer agreed to assume certain customer deposit accounts and certain
other liabilities held by WMBfsb at the Branches.
The purpose of this Assignment and Assumption Agreement is to evidence
the transfer and assumption of such deposit accounts and the assignment of
certain related matters. Capitalized terms used but not defined in this
Agreement shall have the meanings given to them in the Purchase Agreement.
Therefore, for good and valuable consideration, the parties agree as
follows:
1. Assumed Contracts. WMBfsb hereby transfers and assigns to Buyer all
of WMBfsb's right, title and interest in and to the Assumed Contracts as of the
date hereof, and Buyer hereby agrees to accept the Assumed Contracts and perform
all obligations thereunder from and after the date hereof. "Assumed Contracts"
shall mean contracts described on Exhibit 1 hereto including the real property
Leases described therein.
2. Deposit Liabilities. WMBfsb hereby transfers and assigns to Buyer all
of WMBfsb's obligations and liabilities to customers including payment of
principal and interest in respect of all deposit accounts held at the Branches
as of the Closing Date and described on Exhibit 2 hereto (the "Transferred
Deposits"), and Buyer hereby assumes and agrees to pay and perform all such
obligations and liabilities from and after the Closing Date in accordance with
their terms.
3. Representations and Warranties. All representations, warranties and
indemnifications in connection with the Assumed Contracts and Transferred
Deposits set forth in the Purchase Agreement between WMBfsb and Buyer are
incorporated herein.
Executed as of date first written above.
WASHINGTON MUTUAL BANK fsb
By:_____________________________________
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Its:_______________________________
GLACIER BANK
By: ___________________________________
Its:_______________________________
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EXHIBIT D
XXXX OF SALE AND ASSUMPTION AGREEMENT
For good and valuable consideration, the receipt and adequacy of which
is hereby acknowledged, WASHINGTON MUTUAL BANK fsb ("Seller") does hereby
assign, grant, sell, transfer and deliver to GLACIER BANK ("Buyer"), in
accordance with that certain Purchase and Assumption Agreement dated as of May
___, 1999, by and between Seller and Buyer (the "Agreement"), all of Seller's
right, title and interest in and to all of the furniture, equipment, trade
fixtures and other tangible personal property assets set forth on the attached
Exhibit A. Seller acknowledges that Buyer does not assume and shall have no
liability for any debts, liabilities or obligations of Seller of any kind
whatsoever except as specifically set forth in the Agreement or in any other
writing executed by Buyer. All representations, warranties and indemnifications
set forth in the Purchase Agreement are incorporated herein. Seller makes no
other representations or warranties, express or implied, except as set forth
expressly herein or in the Agreement. Except to the extent, if any, set forth in
the Agreement, all property transferred to Seller pursuant to this Xxxx of Sale
and Assumption Agreement is "as-is."
This Xxxx of Sale and Assumption Agreement has been duly executed by
Seller and Buyer as of the _____ day of _____, 1999.
WASHINGTON MUTUAL BANK fsb
By: ___________________________________
Its:_______________________________
GLACIER BANK
By: ___________________________________
Its:_______________________________
3
