EXHIBIT 10.8
PURCHASE AND ASSUMPTION AGREEMENT
DATED AS OF
JANUARY 30, 2001
BETWEEN
FIRSTAR BANK, NATIONAL ASSOCIATION
AND
▇▇▇▇▇▇ BANK, NATIONAL ASSOCIATION
TABLE OF CONTENTS
PAGE
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ARTICLE 1 CERTAIN DEFINITIONS 1
1.1 Certain Definitions 1
1.2 Accounting Terms 9
1.3 Interpretation 9
ARTICLE 2 THE P&A TRANSACTION 10
2.1 Purchase and Sale of Assets 10
2.2 Assumption of Liabilities 10
2.3 Purchase Price 11
2.4 Assumption of ▇▇▇ and ▇▇▇▇▇ Account Deposits 12
2.5 Sale and Transfer of Servicing and Escrows 12
ARTICLE 3 CLOSING PROCEDURES; ADJUSTMENTS 13
3.1 Closing 13
3.2 Payment at Closing 13
3.3 Adjustment of Purchase Price 14
3.4 Proration; Other Closing Date Adjustments 14
3.5 Seller Deliveries 15
3.6 Purchaser Deliveries 16
3.7 Delivery of the Loan Documents 16
3.8 Collateral Assignments and Filing 17
3.9 Owned Real Property Filings 17
3.10 Title Policies 17
3.11 Allocation of Purchase Price 17
3.12 Signs 18
3.13 Further Assurances 18
ARTICLE 4 TRANSITIONAL MATTERS 18
4.1 Transitional Arrangements 18
4.2 Customers 19
4.3 Direct Deposits 20
4.4 Direct Debits 20
4.5 Escheat Deposits 21
4.6 Access to Records 21
4.7 Interest Reporting and Withholding 21
4.8 Negotiable Instruments 21
4.9 ATM/Debit Cards; POS Cards 22
4.10 Leasing of Personal Property 22
4.11 Data Processing Conversion for the Branches and Handling of
Certain Items 22
4.12 Information Regarding Mortgage Loans 23
4.13 Employee Training 24
4.14 Review of Title 24
ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF SELLER 25
5.1 Corporate Organization and Authority 25
5.2 No Conflicts 25
5.3 Approvals and Consents 26
5.4 Tenants 26
5.5 Leases 26
5.6 Litigation and Undisclosed Liabilities 26
5.7 Regulatory Matters 26
5.8 Compliance with Laws 27
5.9 Loans 27
5.10 Records 29
5.11 Title to Assets 29
5.12 Deposits 29
5.13 Environmental Laws; Hazardous Substances 29
5.14 Titles to the Property, Liens and Permitted Encumbrances 30
5.15 Brokers' Fees 30
5.16 Taxes 30
5.17 Financial Information 30
5.18 Defects 30
5.19 Fraud 31
5.20 Limitations on Representations and Warranties 31
ARTICLE 6 REPRESENTATIONS AND WARRANTIES OF PURCHASER 31
6.1 Corporate Organization and Authority 31
6.2 No Conflicts 31
6.3 Approvals and Consents 31
6.4 Regulatory Matters 32
6.5 Litigation and Undisclosed Liabilities 32
6.6 Operation of the Branches 33
6.7 Financing Available 33
6.8 Brokers' Fees 33
6.9 Lending Limit 33
ARTICLE 7 COVENANTS OF THE PARTIES 33
7.1 Activity in the Ordinary Course 33
7.2 Access and Confidentiality 35
7.3 Regulatory Approvals 36
7.4 Consents 36
7.5 Efforts to Consummate; Further Assurances 37
7.6 Solicitation of Accounts 37
7.7 Insurance 38
7.8 Servicing Prior to Closing Date 38
7.9 Maintenance of Records 38
7.10 Furnitures, Fixtures and Equipment 38
7.11 Advice of Changes 38
7.12 Deposit Listing 39
ARTICLE 8 TAXES AND EMPLOYEE BENEFITS 39
8.1 Tax Representations 39
8.2 Proration of Taxes 39
8.3 Sales and Transfer Taxes 39
8.4 Information Returns 39
8.5 Like Kind Exchange 39
8.6 Assistance and Cooperation 40
8.7 Transferred Employees 40
8.8 Branch Employee Representations 42
ARTICLE 9 CONDITIONS TO CLOSING 43
9.1 Conditions to Obligations of Purchaser 43
9.2 Conditions to Obligations of Seller 44
ARTICLE 10 TERMINATION 44
10.1 Termination 44
10.2 Effect of Termination 45
ARTICLE 11 INDEMNIFICATION 45
11.1 Indemnification 45
11.2 Exclusivity 47
11.3 AS-IS Sale; Waiver of Warranties 47
11.4 Loans 48
ARTICLE 12 ENVIRONMENTAL MATTERS 49
12.1 Environmental Matters 49
ARTICLE 13 MISCELLANEOUS 51
13.1 Survival 51
13.2 Assignment 51
13.3 Binding Effect 51
13.4 Public Notice 51
13.5 Notices 52
13.6 Expenses 53
13.7 Governing Law 53
13.8 Entire Agreement; Amendment 53
13.9 Third Party Beneficiaries 53
13.10 Counterparts 53
13.11 Headings 53
13.12 Severability 53
PURCHASE AND ASSUMPTION AGREEMENT
This PURCHASE AND ASSUMPTION AGREEMENT, dated as of January 30, 2001
("Agreement"), between Firstar Bank, National Association ("Seller") and ▇▇▇▇▇▇
Bank, National Association ("Purchaser").
RECITALS
A. Seller. Seller is a national banking association, organized under the laws of
the United States, with its principal office located in Cincinnati, Ohio.
B. Purchaser. Purchaser is a national banking association, organized under the
laws of the United States with its principal office located in South St. ▇▇▇▇,
Minnesota.
C. The Merger. Firstar, a Wisconsin corporation ("Firstar"), has proposed to
merge (the "Merger") with U. S. Bancorp, a Delaware corporation ("USB") pursuant
to the terms of an Agreement and Plan of Merger, dated as of October 3, 2000, as
amended, by and between Firstar and USB (the "Merger Agreement").
In connection with the consummation of the Merger, Purchaser desires to
acquire from Seller, and Seller desires to transfer to Purchaser, certain
banking operations in the State of Minnesota, in accordance with and subject to
the terms and conditions of this Agreement.
Purchaser understands and acknowledges that if the P&A Transaction (as
defined below) shall not be consummated on or before the one hundred eightieth
(180) calendar day following the Merger, such banking operations will be
transferred to an independent trustee for disposition.
D. Continuation of Service. Purchaser and Seller each intend to continue
providing retail and business banking services in the geographic regions served
by the Branches (as defined below) to be acquired by Purchaser under this
Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual promises and
obligations set forth herein, the parties agree as follows:
ARTICLE 1
CERTAIN DEFINITIONS
1.1 Certain Definitions. The terms set forth below are used in this Agreement
with the following meanings:
"Accrued Interest" means, as of any date, (a) with respect to a
Deposit, interest which is accrued on such Deposit to but excluding such date
and not yet posted to the relevant deposit account and (b) with respect to a
Loan, interest which is accrued on such Loan to but excluding such date and not
yet paid.
1
"Accrued Liabilities" has the meaning set forth in Section 2.2(a).
"ACH Direct Deposit Cut-Off Date" has the meaning set forth in Section
4.3.
"Adjusted Payment Amount" has the meaning set forth in Section 3.3.
"Adjustment Date" has the meaning set forth in Section 3.3.
"Affiliate" means, with respect to any person, any other person
directly or indirectly controlling, controlled by or under common control with
such person. As used in this definition, the term "person" shall be broadly
interpreted to include, without limitation, any corporation, company,
partnership and individual or group.
"Agreement" means this Purchase and Assumption Agreement, including all
schedules, exhibits and addenda, each as amended from time to time in accordance
with Section 13.8(b).
"Asbestos Hazard" means the presence of friable asbestos in a parcel of
Real Property or the improvements thereon as of the date hereof which, under
applicable Environmental Laws, must be immediately remediated in order to allow
continuation of the current operation of the Branch within such Real Property
using the current improvements thereon or which releases asbestos fiber above
limits established under Environmental Laws.
"Assets" has the meaning set forth in Section 2.1(a).
"Assignment and Assumption Agreement" has the meaning set forth in
Section 3.6(c).
"Branch Employees" means the employees of the Seller working at the
Branches at the Closing Date (including, without limitation, those employees who
on the Closing Date are on family and medical leave, military leave or personal,
short-term disability or pregnancy leave and who are eligible to return to work
under Seller's policies), subject to any transfers permitted pursuant to Section
7.1 and replacement in the ordinary course of business of employees who may
leave Seller's employ between the date hereof and the Closing Date. For purposes
of this Agreement, Branch Employees shall also include those loan and small
business banking officers disclosed to Buyer and known as the Commercial Banking
Group.
"Branch Leases" means the leases under which Seller leases land and/or
buildings used as Branches, including without limitation ground leases, all of
which are set forth on Schedule 1.1(b) attached hereto.
"Branches" means each of the banking offices of Seller at the locations
identified on Schedule 1.1(b) hereto.
"Burdensome Condition" has the meaning set forth in Section 9.1(a).
2
"Business Day" means a day on which banks are generally open for
business in Minnesota and which is not a Saturday or Sunday.
"Cash on Hand" means, as of any date, all ▇▇▇▇▇ cash, vault cash,
teller cash, ATM cash, prepaid postage and cash equivalents held at a Branch.
"Closing" and "Closing Date" refer to the closing of the P&A
Transaction, which is to be held at such time and date as provided in Article 3
hereof.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commercial Banking Group" means the employees of the Seller, loans and
deposits as identified on pages 105 through 109 of that certain Minneapolis/St.
▇▇▇▇ Area-Branch Sales Memorandum prepared by U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ and
provided to the Purchaser (the "Memorandum"), as updated from time to time
through Closing as permitted by this Agreement.
"Commercial Loans" means the commercial loan portfolio identified in
the Memorandum associated with the Commercial Banking Group, as updated from
time to time through Closing as permitted by this Agreement.
"Commercial Deposits" means the deposits identified in the Memorandum
associated with the Commercial Banking Group"), as updated from time to time
through Closing as permitted by this Agreement.
"Deposit-Related Loans" means all loans secured by a Deposit as of the
close of business on the Closing Date that are linked to an open account and are
not sixty (60) or more calendar days delinquent as of the Closing Date.
"Deposit(s)" means the Commercial Deposits and deposit liabilities with
respect to deposit accounts booked by Seller at the Branches, or allocated by
Seller to the Branches, including, without limitation, deposits associated with
the Loans, as of the close of business on the Closing Date, which constitute
"deposits" for purposes of the Federal Deposit Insurance Act, 12 U.S.C. ss.
1813, including collected and uncollected deposits and Accrued Interest, but
excluding (a) deposit liabilities with respect to accounts booked by Seller at
any Branch and under or pursuant to any judgment, decree or order of any court;
(b) deposit liabilities with respect to accounts registered in the name of a
trust for which Seller serves as trustee (other than ▇▇▇ and ▇▇▇▇▇ Account
deposit liabilities); (c) deposit liabilities with respect to accounts booked by
Seller at any Branch for which Seller serves as guardian or custodian (other
than ▇▇▇ and ▇▇▇▇▇ Account deposit liabilities); (d) Excluded ▇▇▇/▇▇▇▇▇ Account
Deposits, and (e) other deposit liabilities, if any, designated as "Excluded
Deposits" on Schedule 1.1(d) as updated thirty (30) calendar days after the date
hereof by mutual agreement of Seller and Purchaser.
"Draft Closing Statement" means a draft closing statement, prepared by
Seller, as of the close of business of the third (3rd) Business Day preceding
the Closing Date setting forth an estimated calculation of both the Purchase
Price and the Estimated Payment Amount.
3
"Encumbrances" means all mortgages, claims, charges, liens,
encumbrances, easements, limitations, restrictions, commitments and security
interests, except for statutory liens securing tax and/or other payments not yet
due, liens incurred in the ordinary course of business, including without
limitation liens in favor of mechanics or materialmen, and such other liens,
charges, security interests or encumbrances as do not materially detract from
the value or materially and adversely affect the use of the properties or assets
subject thereto or affected thereby or which otherwise do not materially impair
the value of or business operations at such properties and except for
obligations pursuant to applicable escheat and unclaimed property laws relating
to the Escheat Deposits.
"Environmental Consultant" has the meaning specified in Section
10.1(b).
"Environmental Hazard" means the presence of any Hazardous Substance in
material violation of applicable Environmental Laws; PROVIDED, HOWEVER, that the
definition of Environmental Hazard shall not include asbestos and
asbestos-containing materials.
"Environmental Law" means any Federal, state, or local law, statute,
rule, regulation, code, rule of common law, order, judgment, decree, injunction
or agreement with any Federal, state, or local governmental authority, (a)
relating to the protection, preservation or restoration of the environment
(including, without limitation, air, water vapor, surface water, groundwater,
drinking water supply, surface land, subsurface land, plant and animal life or
any other natural resource) or to human health or safety or (b) the exposure to,
or the use, storage, recycling, treatment, generation, transportation,
processing, handling, labeling, production, release or disposal of hazardous
substances, in each case as amended and now in effect. Environmental Laws
include, without limitation, the Clean Air Act (42 USC ss.7401 et seq.); the
Comprehensive Environmental Response Compensation and Liability Act (42 USC
ss.9601 et seq.); the Resource Conservation and Recovery Act (42 USC ss.6901 et
seq.); the Federal Water Pollution Control Act (33 USC ss.1251 et seq.); and the
Occupational Safety and Health Act (29 USC ss.651 et seq.).
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Escheat Deposits" means, as of any date, Deposits and safe deposit box
contents, in each case held on such date at the Branches which become subject to
escheat, in the calendar year in which the Closing occurs, to any governmental
authority pursuant to applicable escheat and unclaimed property laws.
"Estimated Payment Amount" has the meaning set forth in Section 3.2(a).
"Estimated Purchase Price" means the Purchase Price as set forth on the
Draft Closing Statement.
"Excluded ▇▇▇/▇▇▇▇▇ Account Deposits" has the meaning set forth in
Section 2.4(c).
"Excluded Deposits" means, if any, the deposit liabilities set forth in
Schedule 1.1(d).
4
"Excluded Loans" means (i) any loan that is on nonaccrual status on the
books of the Seller as of the Closing Date, (ii) any loan (or that portion of
any loan) which would cause the Purchaser to be in violation of its legal
lending limit as of the Closing Date as determined under applicable law and the
regulations of the Comptroller of the Currency, (iii) any loan where the
borrower is as of the Closing Date or has been within the last twelve (12)
months prior to the Closing Date, the subject of any bankruptcy proceeding or
filing, (iv) any loan that is risk rated an 8, 9 or 10 as of the Closing Date by
Seller, based upon Seller's internal loan risk rating policy and system, (v) any
loan that is 60 or more days past due as of the Closing Date, and (vi) any loan
to the Minnesota Economic Development Authority or Builders Development and
Finance, Inc.
"FDIA" means the Federal Deposit Insurance Act, as amended.
"FDIC" means the Federal Deposit Insurance Corporation.
"Federal Funds Rate" on any day means the per annum rate of interest
(rounded upward to the nearest 1/100 of 1%) which is the weighted average of the
rates on overnight federal funds transactions arranged on such day or, if such
day is not a Business Day, the previous Business Day, by federal funds brokers
computed and released by the Federal Reserve Bank of New York (or any successor)
in substantially the same manner as such Federal Reserve Bank currently computes
and releases the weighted average it refers to as the "Federal Funds Effective
Rate" at the date of this Agreement.
"Federal Reserve Board" means the Board of Governors of the Federal
Reserve System.
"FedWire Direct Deposit Cut-off Date" has the meaning set forth in
Section 4.3.
"Final Closing Statement" means a final closing statement, prepared by
Seller, on or before the thirtieth (30) calendar day following the Closing Date
setting forth both the Purchase Price and the Adjusted Payment Amount.
"Grant Deeds" has the meaning set forth in Section 3.5(a).
"Hazardous Substance" means any substance, whether liquid, solid or gas
(a) listed, identified or designated as hazardous or toxic; (b) which, applying
criteria specified in any Environmental Law, is hazardous or toxic; or (c) the
use or disposal, or any manner or aspect of management or handling, of which is
regulated under Environmental Law.
"Improvements" means all parking areas and all buildings, structures,
facilities and improvements located on the Owned Real Property and including,
without limitation, all mechanical systems, fixtures and equipment; heating
systems, fixtures and equipment; air conditioning systems, fixtures and
equipment; and plumbing systems, fixtures and equipment, electrical systems,
fixtures and equipment; and ventilating systems, fixtures and equipment
(collectively, the "Improvements").
5
"▇▇▇" means an "individual retirement account" or similar account
created by a trust for the exclusive benefit of any individual or his
beneficiaries in accordance with the provisions of Section 408 of the Code.
"IRS" means the Internal Revenue Service.
"▇▇▇▇▇ Account" means an account created by a trust for the benefit of
employees (some or all of whom are owner-employees) and that complies with the
provisions of Section 401 of the Code.
"Landlord Consents" has the meaning set forth in Section 3.5(e).
"Lease Agreement" means a lease entered into pursuant to Section
10.1(c) upon such specific terms and conditions as contemplated by such Section
and such other commercially reasonable terms and conditions as are customary in
a "triple net" lease of a bank branch facility.
"Lease Assignment" has the meaning set forth in Section 3.5(d).
"Liabilities" has the meaning set forth in Section 2.2.
"Loans" means, collectively, the Commercial Loans, Deposit-Related
Loans, Mortgage Loans, Overdraft Loans and Other Loans, all as further described
as set forth in Schedule 1.1(e), as updated as of the Closing Date; PROVIDED,
HOWEVER, that "Loans" do not include the interest of any participants in such
Loans or Loans that have been the subject of securitizations and do not include
any Excluded Loans.
"Loan Documents" means all documents included in Seller's file or
imaging system with respect to a Loan including, without limitation, notes,
security agreements, financing statements, deeds of trust, mortgages, loan
agreements, including building and loan agreements, guarantees, sureties , any
other collateral documentation and insurance policies (including title insurance
policies) and all modifications, waivers and consents relating to any of the
foregoing.
"Loan Value" means, with respect to a Loan and as of a date, the unpaid
principal balance of any such loan plus Accrued Interest thereon, net of the
interest in such loan of any participant, as of such date.
"Loss" means the amount of losses, liabilities, damages (including
forgiveness or cancellation of obligations) and expenses (including reasonable
expenses of investigation and reasonable attorneys' fees and expenses in
connection with any action, suit or proceeding) incurred or suffered by the
indemnified party or its Affiliates in connection with the matters described in
Section 12.1, less the amount of the economic benefit (if any) to the
indemnified party or its Affiliates obtained or to be obtained in connection
with any such damage, loss, liability or expense (including net Tax benefits
obtainable under applicable law, amounts recovered under insurance policies net
of deductibles, recovery by setoffs or counterclaims, and other economic
benefits).
6
"Material Adverse Effect" means (a) with respect to Seller, a material
adverse effect on the business or direct economic results of operations of the
Branches, taken as a whole, or on the ability of Seller to timely consummate the
P&A Transaction as contemplated by this Agreement, and (b) with respect to
Purchaser, a material adverse effect on the ability of Purchaser to perform any
of its financial or other obligations under this Agreement, including the
ability of Purchaser to timely consummate the P&A Transaction as contemplated by
this Agreement. In determining whether a Material Adverse Effect has occurred,
the effect of any change in Federal or state banking laws or regulations, any
change in GAAP or regulatory accounting principles, any adverse change in
general economic conditions, including, without limitation, the interest rate
environment, or in the depository institution industry generally shall be
excluded.
"Merger Approvals" means, collectively, all regulatory and stockholder
approvals, authorizations, consents and waivers required to permit consummation
of the Merger.
"Mortgage" means a mortgage securing a Mortgage Loan.
"Mortgagor" means a borrower under a Mortgage Loan.
"Mortgage Loan" means a loan that is 100% owned by Seller and secured
by a first mortgage on 1-4 family residential real property that is included in
the P&A Transaction.
"Mortgage Note" means the note evidencing the Mortgage Loan.
"OCC" means the Office of the Comptroller of the Currency.
"Order" has the meaning set forth in Section 9.1(b).
"Other Assets" has the meaning set forth in Section 2.1(a).
"Other Loans" means the loans to the borrowers described on Schedule
1.1(e) to be attached hereto (including loan commitments referred to thereon),
including, without limitation, the middle market commercial loans to be divested
hereunder.
"Overdraft Loans" means unsecured overdraft loans, including negotiable
order of withdrawal line of credit accounts, relating to the Deposits, as of the
close of business on the Closing Date, plus accrued interest, which do not
exceed the applicable credit limit and are linked to any open account.
"Owned Real Property" means Real Property where Seller owns both the
real property and Improvements thereon that are used for Branches, all of which
are set forth and identified on the attached Schedule 1.1(b).
"P&A Transaction" means the purchase and sale of Assets and the
assumption of Liabilities described in Sections 2.1 and 2.2.
7
"Permitted Encumbrances" shall mean all exceptions to title shown in
the Title Commitments or matters shown on the Surveys for the Owned Real
Property that Purchaser has approved or is deemed approved pursuant to Section
4.14(f).
"Personal Property" means all of the personal property of Seller
located in the Branches consisting of the trade fixtures, shelving, furniture,
on-premises ATMs, equipment (other than automated teller and platform
equipment), security systems, safe deposit boxes (exclusive of contents),
vaults, sign structures (exclusive of signage containing any trade name,
trademark or service ▇▇▇▇, if any, of Seller, Firstar, USB, or any of their
respective Affiliates) and supplies excluding any items consumed or disposed of,
but including new items acquired or obtained, in the ordinary course of the
operation of the Branches through the Closing Date. If, on or prior to the
Closing Date, an item of Personal Property is stolen, destroyed or otherwise
lost, such item shall be excluded from the P&A Transaction, and the term
"Personal Property" as used herein shall exclude such item. If, on or prior to
the Closing Date, an item of Personal Property is damaged by fire or other
casualty, such item, if reasonably repairable, shall be sold to Purchaser (in
accordance with the provisions hereof) and the insurance proceeds relating to
such item shall be assigned to Purchaser, it being understood that if such item
is not reasonably repairable or is underinsured or uninsured, it shall be
excluded from the P&A Transaction. Personal Property does not include any
personal property or equipment subject to a Personal Property Lease.
"Personal Property Leases" means the leases under which Seller leases
certain Personal Property in the Branches.
"Purchase Price" has the meaning set forth in Section 2.3.
"Real Property" means the parcels of real property on which the
Branches listed on Schedule 1.1(b) are located, including any Improvements
thereon, which Schedule indicates whether or not such real property is Owned
Real Property.
"Records" means all records and original documents, or where reasonable
and appropriate copies thereof, in Seller's possession that pertain to and are
used by Seller to administer, reflect, monitor, evidence or record information
respecting the business or conduct of the Branches (including transaction
tickets through the Closing Date and all records for closed accounts located in
Branches and excluding any other transaction tickets and records for closed
accounts) and all such records and original documents, or where reasonable and
appropriate copies thereof, regarding the Assets, or the Deposits, including all
such records maintained on electronic or magnetic media in the electronic
database system of Seller reasonably accessible by Branch, or to comply with the
applicable laws and governmental regulations to which the Deposits are subject,
including but not limited to applicable unclaimed property and escheat laws.
"Regulatory Approvals" means all approvals, authorizations, waivers or
consents of, or notices to, any governmental agencies or authorities required
for or in connection with consummation of the P&A Transaction, including,
without limitation, the following: (i) approvals under Section 18(c) and 18(d)
of the FDIA and, if applicable, under Section 10(e) of the Home Owners' Loan
Act; (ii) any required State approvals and/or notices; (iii) expiration of the
waiting period provided for in Section 18(c) of the FDIA; and (iv) approval of
the United States Department of Justice, and any other federal, state or local
bank regulatory agency with an interest in, or supervisory control over, the P&A
transaction.
8
"Safe Deposit Agreements" means the agreements relating to safe deposit
boxes located in the Branches.
"Seller's knowledge" or other similar phrases means information that is
(a) actually known to any officer of Seller who holds the title of Senior Vice
President or above and has responsibility with respect to management of
operations conducted at the Branches, (b) as to a particular Branch, actually
known to the on-site manager of the Branch in question or (c) the loan officer
responsible for the monitoring of the Loan assumed or purchased.
"Tax Returns" means any return or other report required to be filed
with respect to any Tax, including declaration of estimated tax and information
returns.
"Taxes" means any federal, state, local, or foreign taxes, including
but not limited to taxes on or measured by income, estimated income, franchise,
capital stock, employee's withholding, non-resident alien withholding, backup
withholding, social security, occupation, unemployment, disability, value added
taxes, taxes on services, real property, personal property, sales, use, excise,
transfer, gross receipts, inventory and merchandise, business privilege, and
other taxes or governmental fees or charges or amounts required to be withheld
and paid over to any government in respect of any tax or governmental fee or
charge, including any interest, penalties, or additions to tax on the foregoing
whether or not disputed.
"Tenant Leases" means leases or subleases between Seller and tenants
with respect to Real Property, if any.
"Transaction Account" means any account at a Branch in respect of which
deposits therein are withdrawable in practice upon demand or upon which third
party drafts may be drawn by the depositor, including checking accounts,
negotiable order of withdrawal accounts and money market deposit accounts.
"Transferred Employees" means Employees who accept offers of employment
from Purchaser or an Affiliate of Purchaser as contemplated in Section 8.7.
1.2 Accounting Terms. All accounting terms not otherwise defined herein shall
have the respective meanings assigned to them in accordance with consistently
applied generally accepted accounting principles as in effect from time to time
in the United States of America ("GAAP" ).
1.3 Interpretation. All references in this Agreement to Articles or Sections are
references to Articles or Sections of this Agreement, unless some other
reference is clearly indicated. The rule of construction against the draftsman
shall not be applied in interpreting and construing this Agreement.
9
ARTICLE 2
THE P&A TRANSACTION
2.1 Purchase and Sale of Assets. (a) Subject to the terms and conditions set
forth in this Agreement, at the Closing, Seller shall grant, sell, convey,
assign, transfer and deliver to Purchaser, and Purchaser shall purchase and
accept from Seller, all of Seller's right, title and interest, as of the Closing
Date, in and to the following (collectively, the "Assets"):
(i) Cash on Hand;
(ii) the Owned Real Property;
(iii) the Personal Property;
(iv) the Loans, and servicing rights related thereto pursuant to
Section 2.5;
(v) the Branch Leases and Tenant Leases;
(vi) the Safe Deposit Agreements;
(vii) Other Assets as described in Schedule 2.1(a)(vii), if any;
(viii) benefits under all confidentiality agreements executed in
favor of Seller or its Affiliates by entities invited to bid
on the Branches; and
(ix) the Records.
(b) Purchaser understands and agrees that it is purchasing only the Assets (and
assuming only the Liabilities) specified in this Agreement and, except as
expressly provided in this Agreement, Purchaser has no interest in or right to
any other business relationship which Seller may have with any customer of the
Branches or the Commercial Banking Group. No credit card relationships are being
sold. No right to the use of any sign, trade name, trademark, or service ▇▇▇▇,
if any, of Seller, Firstar, U.S. Bancorp or any of their respective Affiliates
is being sold. Notwithstanding the foregoing or anything in this Agreement to
the contrary, but subject to Section 7.3 of this Agreement, with respect to the
Commercial Deposits and the deposit accounts of business customers in the
Branches, the Purchaser is acquiring an interest in the cash management services
and merchant card relationships that are related to the foregoing deposit
accounts and included in the monthly analysis of those accounts. Seller shall
work with and assist Purchaser in transitioning and transferring said cash
management services and merchant card relationships to Purchaser.
2.2 Assumption of Liabilities. (a) Subject to the terms and conditions set forth
in this Agreement, at the Closing, Purchaser shall assume, pay, perform and
discharge all duties, responsibilities, obligations or liabilities of Seller
(whether accrued, contingent or otherwise) to be
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discharged, performed, satisfied or paid on or after the Closing Date, with
respect to the following (collectively, the "Liabilities"):
(i) the Deposits, including ▇▇▇ and ▇▇▇▇▇ Accounts to the extent
contemplated by Section 2.4;
(ii) the Real Property, to the extent arising out of Purchaser's
use after the Closing Date, the Branch Leases and Tenant
Leases and the Other Assets;
(iii) the Personal Property, to the extent arising out of
Purchaser's use after the Closing Date, and the Safe Deposit
Agreements;
(iv) the contractual obligations of the Seller under the Loan
Documents, and the servicing of the Loans pursuant to Section
2.5; and
(v) the Accrued Liabilities, if any, described in Section 2.2
(a)(v).
(b) Notwithstanding anything to the contrary in this Agreement, Purchaser shall
not assume or be bound by any duties, responsibilities, obligations or
liabilities of Seller, or of any of Seller's Affiliates, of any kind or nature,
known, unknown, contingent or otherwise, other than the Liabilities or as
otherwise expressly set forth herein. Seller shall continue to be responsible
for all its known and unknown liabilities and obligations, whether arising
before, on or after the Closing Date, not expressly assumed by Purchaser
pursuant to this agreement, including and without limitation, liabilities
relating to Seller's employment of its employees or former employees and their
beneficiaries, including and without limitation, liabilities and obligations
relating to Seller's benefit plans, vacation benefits to employees or their
beneficiaries earned through the Closing Date, medical and other benefit
obligations to retirees and their beneficiaries, medical and other benefit
obligations to employees and their beneficiaries that relate to events or
activities occurring or conditions or states of fact at or before the Closing
Date.
2.3 Purchase Price. The purchase price ("Purchase Price") for the Assets shall
be the sum of:
(a) An amount equal to the specified percentage of the average daily balance
(including Accrued Interest) of the Deposits for the period commencing thirty
(30) calendar days prior to and inclusive of the day prior to the Closing Date
and ending on the day prior to the Closing Date, which percentage is set forth
on Confidential Exhibit 2.3(a);
(b) The aggregate amount of Cash on Hand as of the Closing Date;
(c) The aggregate net book value of all the Assets, other than Cash on Hand,
Owned Real Property and the Loans, as reflected on the books of Seller as of the
close of business of the month-end day most recently preceding the Closing Date,
excluding the net book value of any Owned Real Property leased by Purchaser
pursuant to Section 10.1(c);
(d) The net book value of the Owned Real Property;
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(e) The aggregate Loan Value of the Loans as of the close of business on the
Closing Date; and
(f) In the event that Seller is prevented from assigning a Branch Lease to
Purchaser due to the refusal of a landlord under such Branch Lease to execute
any required Landlord Consent, and if Seller is otherwise unable to sublease the
related Branch to Purchaser on the terms identified in Section 12.1 (c) (i) and
(iv) the Purchase Price shall be appropriately and proportionately adjusted.
Such adjustment shall be in an amount not to exceed 50% of that portion of the
deposit premium calculated pursuant to Section 2.3(a) above which is
attributable to the Deposits at the Branch to which the Branch Lease relates.
2.4 Assumption of ▇▇▇ and ▇▇▇▇▇ Account Deposits. (a) With respect to Deposits
in IRAs, Seller will use reasonable efforts to cooperate with Purchaser in
taking any action reasonably necessary to accomplish either the appointment of
Purchaser as successor custodian or the delegation to Purchaser (or to an
Affiliate of Purchaser) of Seller's authority and responsibility as custodian of
all such ▇▇▇ deposits (except self-directed ▇▇▇ deposits), including, but not
limited to, sending to the depositors thereof appropriate notices, cooperating
with Purchaser (or such Affiliate) in soliciting consents from such depositors,
and filing any appropriate applications with applicable regulatory authorities.
If any such delegation is made to Purchaser (or such Affiliate), Purchaser (or
such Affiliate) will perform all of the duties so delegated and comply with the
terms of Seller's agreement with the depositor of the ▇▇▇ deposits affected
thereby.
(b) With respect to Deposits in ▇▇▇▇▇ Accounts, Seller shall use reasonable
efforts to cooperate with Purchaser to invite depositors thereof to direct a
transfer of each such depositor's ▇▇▇▇▇ Account and the related Deposits to
Purchaser (or an Affiliate of Purchaser), as trustee thereof, and to adopt
Purchaser's (or such Affiliate's) form of ▇▇▇▇▇ Master Plan as a successor to
that of Seller. Purchaser (or such Affiliate) will not be required to assume a
▇▇▇▇▇ Account unless Purchaser (or such Affiliate) has received to Purchaser's
reasonable satisfaction the documents necessary for such assumption at or before
the Closing. With respect to any owner of a ▇▇▇▇▇ Account who does not adopt
Purchaser's (or such Affiliate's) form of ▇▇▇▇▇ Master Plan, Seller will use
reasonable efforts in order to enable Purchaser (or such Affiliate) to retain
such ▇▇▇▇▇ Accounts at the Branches.
(c) If, notwithstanding the foregoing, as of the Closing Date, Purchaser shall
be unable to retain deposit liabilities in respect of an ▇▇▇ or ▇▇▇▇▇ Account,
such deposit liabilities, which shall be set forth on Schedule 2.4(c), shall be
excluded from Deposits for purposes of this Agreement and shall constitute
"Excluded ▇▇▇/▇▇▇▇▇ Account Deposits."
2.5 Sale and Transfer of Servicing and Escrows. (a) The Loans shall be sold on a
servicing-released basis. As of the Closing Date, all rights, obligations,
liabilities and responsibilities with respect to the servicing of the Loans
after the Closing Date shall be assumed by Purchaser. Seller shall be discharged
and indemnified by Purchaser from all liability with respect to servicing of the
Loans after the Closing Date and Purchaser shall not assume and shall be
discharged and indemnified by Seller from all liability with respect to
servicing of the Loans on or prior to the Closing Date.
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(b) As of the Closing Date, Purchaser shall assume, and agrees to undertake and
discharge, any and all obligations of the holder and servicer of Mortgage Loans
as such obligations relate to periods after the Closing Date and as they may
relate to the escrow, maintenance of escrow and payments from escrow of moneys
paid by or on account of the applicable Mortgagor. On or before the fifth (5")
Business Day after the Closing Date, Seller shall remit by wire transfer of
immediately available funds to Purchaser all funds held in escrow that were
collected and received pursuant to a Mortgage Loan for the payment of taxes,
assessments, hazard insurance premiums, primary mortgage insurance policy
premiums, if applicable, or comparable items prior to the Closing Date, plus any
Accrued Interest. Seller makes no warranties or representations of any kind or
nature as to the sufficiency of such sum to discharge any obligations with
respect to Mortgage Loans.
ARTICLE 3
CLOSING PROCEDURES; ADJUSTMENTS
3.1 Closing. (a) The Closing will be held at the offices of Seller in
Minneapolis, Minnesota or such other place as may be mutually agreed to by the
parties.
(b) The Closing Date shall be May 11, 2001, or, if the Closing cannot occur on
such date, on a date and time as soon thereafter as practicable after receipt of
all Regulatory Approvals and the expiration of any applicable waiting periods.
Unless the parties agree pursuant to Section 4.11(a) that the conversion of the
data processing with respect to the Branches and the Assets and Liabilities will
be performed on a date other than the Closing Date, the Closing Date shall be a
Friday.
3.2 Payment at Closing. (a) At Closing, Seller shall pay to Purchaser the amount
by which the aggregate balance (including Accrued Interest) of the Deposits and
Accrued Liabilities exceeds the Estimated Purchase Price (the "Estimated Payment
Amount"), or Purchaser shall pay to Seller the amount by which the Estimated
Purchase Price exceeds the aggregate balance (including Accrued Interest) of the
Deposits and Accrued Liabilities, each as set forth on the Draft Closing
Statement as agreed upon between Seller and Purchaser. In addition, Purchaser
shall pay to Seller any sales tax due.
(b) All payments to be made hereunder by one party to the other shall be made by
wire transfer of immediately available funds (in all cases to an account
specified in writing by Seller or Purchaser, as the case may be, to the other
not later than the third (3rd) Business Day prior to the Closing Date) on or
before 12:00 noon Minneapolis, Minnesota time on the date of payment. If any
payment to be made hereunder on the Closing Date (or any other date) shall not
be made on or before 12:00 noon Minneapolis, Minnesota time on such date, and
the amount thereof shall have been agreed to in writing by the parties at the
Closing Date (or such other payment date), the party responsible therefor may
make such payment on or before 12:00 noon Minneapolis, Minnesota time on the
next Business Day together with interest thereon at the Federal Funds Rate
applicable from the Closing Date (or such other payment date) to the date such
payment is actually made, which in no event shall be later than the third (3rd)
Business Day after such payment was due.
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(c) If any instrument of transfer contemplated herein shall be recorded in any
public record before the Closing and thereafter the Closing does not occur, then
at the request of such transferring party the other party will deliver (or
execute and deliver) such instruments and take such other action as such
transferring party shall reasonably request to revoke such purported transfer.
3.3 Adjustment of Purchase Price. (a) On or before 12:00 noon Minneapolis,
Minnesota time on the thirtieth (30th) calendar day following the Closing Date
(the "Adjustment Date"), Seller shall deliver to the Purchaser the Final Closing
Statement and shall make available such work papers, schedules and other
supporting data as may be reasonably requested by Purchaser to enable it to
verify the amounts set forth in the Final Closing Statement. The Final Closing
Statement shall also set forth the amount (the "Adjusted Payment Amount") by
which the aggregate amount of Deposits (including Accrued Interest) and Accrued
Liabilities shown on the Final Closing Statement differs from the Estimated
Purchase Price.
(b) The determination of the Adjusted Payment Amount shall be final and binding
on the parties hereto on the thirtieth (30th) calendar day after receipt by
Purchaser of the Final Closing Statement, unless Purchaser shall notify the
Seller in writing of its disagreement with any amount included therein or
omitted therefrom, in which case, if the parties are unable to resolve the
disputed items within ten (10) Business Days of the receipt by Seller of notice
of such disagreement, such items shall be determined by a nationally recognized
independent accounting firm selected by mutual agreement between Seller and
Purchaser; PROVIDED, HOWEVER, that in the event the fees of such firm, as
estimated by such firm, would exceed fifty percent (50 %) of the net amount in
dispute, the parties agree that such firm will not be engaged by either party
and that such net amount in dispute will be equally apportioned between Seller
and Purchaser. Such accounting firm shall be instructed to resolve the disputed
items within ten (10) Business Days of engagement, to the extent reasonably
practicable. The determination of such accounting firm shall be final and
binding on the parties hereto. The fees of any such accounting firm shall be
divided equally between Seller and Purchaser.
(c) On or before 12:00 noon Minneapolis, Minnesota time on the tenth (10th)
Business Day after the Adjusted Payment Amount shall have become final and
binding or, in the case of a dispute, the date of the resolution of the dispute
pursuant to subsection 3.3(b) above, Seller shall pay to Purchaser an amount
equal to the amount by which the Adjusted Payment Amount exceeds the Estimated
Payment Amount, plus interest on such excess amount from the Closing Date to but
excluding the payment date, at the Federal Funds Rate or, if the Estimated
Payment Amount exceeds the Adjusted Payment Amount, Purchaser shall pay to
Seller an amount equal to such excess, plus interest on such excess amount from
the Closing Date to but excluding the payment date, at the Federal Funds Rate.
Any payments required by Section 3.4 shall be made contemporaneously with the
foregoing payment.
3.4 Proration; Other Closing Date Adjustments. (a) Except as otherwise
specifically provided in this Agreement, it is the intention of the parties that
Seller will operate the Branches for its own account consistent with historical
practices until 11:59 p.m., Minneapolis, Minnesota time, on the Closing Date,
and that Purchaser shall operate the Branches, hold the Assets and assume the
Liabilities for its own account after the Closing Date. Thus, except as
otherwise specifically
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provided in this Agreement, items of income and expense, as defined herein,
shall be prorated as of 11:59 p.m., Minneapolis, Minnesota time, on the Closing
Date, and settled between Seller and Purchaser on the Closing Date, whether or
not such adjustment would normally be made as of such time. Items of proration
will be handled at Closing as an adjustment to the Purchase Price unless
otherwise agreed by the parties hereto.
(b) For purposes of this Agreement, items of proration and other adjustments
shall include, without limitation: (i) rental payments and security deposits
under the Branch Leases and the Tenant Leases; (ii) personal and real property
taxes and assessments; (iii) FDIC deposit insurance assessments; (iv) wages,
salaries and employee benefits and expenses; (v) trustee or custodian fees on
▇▇▇ and ▇▇▇▇▇ Accounts; (vi) adjustments reflecting exclusions from the Personal
Property as provided for in the definition thereof; (vii) other prepaid expenses
and items and accrued but unpaid liabilities, as of the close of business on the
Closing Date; and (viii) safe deposit rental payments previously received by
Seller.
3.5 Seller Deliveries. At the Closing, Seller shall deliver to Purchaser:
(a) Deeds in substantially the form of Schedule 3.5(a), (the "Grant Deeds")
covering the Owned Real Property and conveying good and indefeasible fee title
to the Owned Real Property and the Improvements thereon to Purchaser, subject
only to Permitted Encumbrances;
(b) A ▇▇▇▇ of sale in substantially the form of Schedule 3.5(b) (except as
otherwise required by local state law), pursuant to which the Personal Property
shall be transferred to Purchaser;
(c) An assignment and assumption agreement in substantially the form of Schedule
3.5(c), with respect to the Liabilities (the "Assignment and Assumption
Agreement");
(d) Lease assignment and assumption agreements in substantially the form of
Schedule 3.5(d), with respect to each of the Branch Leases (the "Lease
Assignments");
(e) Subject to the provisions of Section 7.4, such consents of landlords as
shall be required pursuant to the terms of such Branch Leases or, to the
assignment of the Branch Leases to Purchaser in substantially the form of
Schedule 3.5(e) or to a sublease with substantially the same effect (the
"Landlord Consents");
(f) Subject to the provisions of Section 7.4, such consents as shall be required
pursuant to the terms of such Tenant Leases in connection with the assignment
thereof to Purchaser;
(g) Tenant Estoppels from Tenants, in the form substantially set forth in
Schedule 3.5(g);
(h) An Officer's Certificate in substantially the form of Schedule 3.5(g);
(i) The Draft Closing Statement;
(j) Seller's resignation as trustee or custodian, as applicable, with respect to
each ▇▇▇ or ▇▇▇▇▇ Account included in the Deposits and designation of Purchaser
as successor trustee or custodian with respect thereto, as contemplated by
Section 2.4;
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(k) All documentation required to exempt Seller from the withholding requirement
of Section 1445 of the Code, consisting of an affidavit from Seller to Purchaser
upon penalty of perjury that Seller is not a foreign person and providing
Seller's U.S. taxpayer identification number;
(l) Such other documents as the parties determine are reasonably necessary to
consummate the P&A Transaction as contemplated hereby;
(m) Abstracts to the Owned Real Property, if any; and
(n) The Records.
3.6 Purchaser Deliveries. At the Closing, Purchaser shall deliver to Seller:
(a) The Assignment and Assumption Agreement;
(b) Purchaser's acceptance of its appointment as successor trustee or custodian,
as applicable, of the ▇▇▇ and ▇▇▇▇▇ Accounts included in the Deposits and
assumption of the fiduciary obligations of the trustee or custodian with respect
thereto, as contemplated by Section 2.4;
(c) The Lease Assignments and, as contemplated by Section 7.4, such other
instruments and documents as any landlord under a Branch Lease may reasonably
require as necessary or desirable for providing for the assumption by Purchaser
of a Branch Lease, each such instrument and document in form and substance
reasonably satisfactory to the parties and dated as of the Closing Date;
(d) An Officer's Certificate in substantially the form of Schedule 3.6(d);
(e) Such other documents as the parties determine are reasonably necessary to
consummate the P&A Transaction as contemplated hereby.
3.7 Delivery of the Loan Documents. (a) As soon as reasonably practicable after
the Closing Date, Seller shall deliver to Purchaser or its designee the Loan
Documents actually in the possession of Seller, in whatever form or medium
(including imaged documents) then maintained by Seller. Seller makes no
representation or warranty to Purchaser regarding the condition of the Loan
Documents or any single document included therein, or Seller's interest in any
collateral securing any Loan, except as specifically set forth herein. Seller
shall have no responsibility or liability for the Loan Documents from and after
the time such files are delivered by Seller to Purchaser or to an independent
third party designated by Purchaser for shipment to Purchaser, the cost of which
shall be the sole responsibility of Purchaser.
(b) Promptly upon execution of this Agreement, Purchaser shall provide Seller
with the exact name to which the Loans are to be endorsed, or whether any Loans
should be endorsed in blank. Seller will use its best efforts to complete such
endorsements and deliver the Loan Documents, along with appropriate assignments
of real property security instruments in recordable form and
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assignments of financing statements, at the Closing in the case of commercial
Loans and within thirty (30) calendar days after Closing in the case of all
other Loans; PROVIDED, HOWEVER, with respect to specific Loan Documents, Seller
may require additional time to effectively transfer title thereto and Purchaser
shall not hold Seller liable for any reasonable delays in the delivery of such
Loan Documents. Purchaser further acknowledges and agrees that Seller may
execute or endorse any Loan Document by way of facsimile signature.
3.8 Collateral Assignments and Filing. Seller shall take all such reasonable
actions as requested by Purchaser to assist Purchaser in obtaining the valid
perfection of a lien or security interest in the collateral, if any, securing
each Loan sold on the Closing Date in favor of Purchaser or its designated
assignee as secured party. Any such action shall be at the sole expense of
Purchaser, and Purchaser shall reimburse Seller for all reasonable third party
costs incurred in connection therewith.
3.9 Owned Real Property Filings. On or prior to the Closing Date, Purchaser
shall file or record, or cause to be filed or recorded, any and all documents
necessary in order that the legal and equitable title to Owned Real Property
shall be duly vested in Purchaser. Any expenses or documentary transfer taxes
with respect to such filings and all escrow closing costs shall be borne by
Seller.
3.10 Title Policies. (a) Pursuant to Section 4.14, Seller, at Seller's expense,
shall provide Purchaser a preliminary title commitment (the "Title Commitment")
for all the Owned Real Property issued by a Title Company mutually acceptable to
Purchaser and Seller (the "Title Company"). Purchaser may, at its own expense,
obtain as of the Closing Date an ALTA (standard coverage) title insurance policy
from the Title Company (a "Title Policy") with respect to all the Owned Real
Property. Seller will reasonably cooperate with Purchaser in assisting Purchaser
to obtain (at Purchaser's expense) such Title Policies, including without
limitation, such endorsements as may be reasonably necessary to insure that such
Owned Real Property is free and clear of all liens and encumbrances relating to
the Owned Real Property except the Permitted Encumbrances.
3.11 Allocation of Purchase Price. (a) On the Adjustment Date, Purchaser shall
deliver to Seller a draft of a statement (the "Allocation Statement") setting
forth the allocation of the consideration paid for the Assets. If, within 30
days of the receipt of the draft Allocation Statement, Seller shall not have
objected in writing to such draft, the draft Allocation Statement shall become
final and binding upon Purchaser and Seller. If Seller objects to such draft in
writing within such 30-day period, Purchaser and Seller shall negotiate in good
faith to resolve any disputed items and to finalize the Allocation Statement.
If, within 90 days after the Adjustment Date, Purchaser and Seller have not
adopted or revised the draft Allocation Statement as described above, any
disputed aspects of the Allocation Statement or such revision shall be resolved
by a nationally recognized independent accounting firm mutually acceptable to
Purchaser and Seller, whose determination shall be binding upon Purchaser and
Seller. The costs, expenses and fees of such accounting firm relating to the
Allocation Statement shall be borne one-half by Purchaser and one-half by
Seller.
(b) Purchaser and Seller shall report the transaction contemplated by this
Agreement (including income tax reporting requirements imposed pursuant to
Section 1060 of the Code) in
17
accordance with the allocation specified in the final Allocation Statement. In
the event any party hereto receives notice of an audit in respect of the
allocation of the consideration paid for the Assets, such party shall
immediately notify the other party in writing as to the date and subject of such
audit.
(c) If any Tax Return filed by Purchaser or Seller relating to the transactions
contemplated hereby is challenged by the taxing authority with which such Tax
Return was filed on the basis of the allocation set forth in the Allocation
Statement, as finally adjusted, the filing party shall assert and maintain in
good faith the validity and correctness of such allocation during the audit
thereof until the issuance by the taxing authority of a "30 Day Letter," or a
determination of liability equivalent thereto, to such party; PROVIDED, HOWEVER,
that at any time such party shall, in its sole discretion, have the right to
pay, compromise, settle, dispute or otherwise deal with its alleged tax
liability. If such a Tax Return is challenged as herein described, the party
filing such Tax Return shall keep the other party hereto apprised of its
decisions and the current status and progress of all administrative and judicial
proceedings, if any, that are undertaken at the election of such party.
3.12 Signs. Seller shall, at its own expense, remove exterior signage (but not
the sign structure) and the letter and/or fascia, of all the interior signs from
the Branch Office depicting or relating to the name "Firstar Corporation" or
"Firstar Bank" on or before the Closing Date or such other date as the parties
may mutually agree. Seller shall be responsible for all expenses incurred in
patching or repairing the surfaces surrounding the sign. Seller shall not be
responsible for expenses incurred in connection with the construction or
placement of any signs by Purchaser at the Branches.
3.13 Further Assurances. On and after the Closing Date, Seller and Purchaser
shall give such further assurance to the other party and upon reasonable request
shall execute, acknowledge and deliver all such acknowledgments and other
instruments and take such further action as may be necessary and appropriate to
effectively transfer the Assets and the Liabilities to Purchaser.
ARTICLE 4
TRANSITIONAL MATTERS
4.1 Transitional Arrangements. Seller and Purchaser agree to cooperate and to
proceed as follows to effect the transfer of account record responsibility for
the Branches and the Commercial Banking Group:
(a) Not later than thirty (30) calendar days after the date of this Agreement,
Seller will meet with Purchaser to investigate, confirm and agree upon mutually
acceptable transaction settlement procedures and specifications, files,
procedures and schedules, for the transfer of account record responsibility;
PROVIDED, HOWEVER, that Seller shall not be obligated under this Agreement to
provide Purchaser any information regarding Seller's relationship with the
customers outside of the relevant Branch (e.g., other customer products, and
householding information).
(b) Not later than thirty (30) calendar days after the date of this Agreement,
Seller shall deliver to Purchaser specifications and conversion sample files.
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(c) From time to time prior to the Closing, after Purchaser has tested and
confirmed the conversion sample files, Purchaser may request and Seller shall
provide reasonable additional file-related information, including, without
limitation, complete name and address, account masterfile, ATM account number
information, applicable transaction and stop/hold/caution information,
account-to-account relationship information and any other related information
with respect to the Deposits and the Other Loans.
4.2 Customers. (a) Not later than thirty (30) calendar days prior to the Closing
Date (unless earlier required by applicable law):
(i) Seller will notify the holders of Deposits to be transferred
on the Closing Date that, subject to the terms and conditions
of this Agreement, Purchaser will be assuming liability for
such Deposits;
(ii) each of Seller and Purchaser shall provide, or join in
providing where appropriate, all notices to customers of the
Branches and the Commercial Banking Group and other persons
that Seller or Purchaser, as the case may be, is required to
give under applicable law or the terms of any other agreement
between Seller and any customer in connection with the
transactions contemplated hereby; and
(iii) following or concurrently with the notice referred to in
clause (i) above, Purchaser may communicate with and deliver
information to depositors and other customers of the Branches
and the Commercial Banking Group concerning the P&A
Transaction and the business of Purchaser.
A party proposing to send or publish any notice or communication pursuant to
this Section 4.2 shall furnish to the other party a copy of the proposed form of
such notice or communication at least five (5) calendar days in advance of the
date of the first mailing, posting, or other dissemination thereof to customers,
and shall not unreasonably refuse to amend such notice to incorporate any
changes that the other such party proposes as necessary to comply with
applicable law. All costs and expenses of any notice or communication sent or
published by Purchaser or Seller shall be the responsibility of the party
sending such notice or communication and all costs and expenses of any joint
notice or communication shall be shared equally by Seller and Purchaser. As soon
as reasonably practicable and in any event within forty-five (45) calendar days
after the date hereof, Seller shall provide to Purchaser a report of the names
and addresses of the owners of the Deposits, the borrowers on the Loans and the
lessees of the safe deposit boxes as of the date hereof in connection with the
mailing of such materials.
(b) Following the giving of any notice described in paragraph (a) above,
Purchaser and Seller shall deliver to each new customer at any of the Branches
such notice or notices as may be reasonably necessary to notify such new
customers of Purchaser's pending assumption of liability for the Deposits and to
comply with applicable law. As soon as reasonably practicable after the date of
this Agreement, but in no event later than 30 days after the date of this
Agreement, Seller will provide Purchaser with account information, including
complete mailing addresses for each of the depositors of the Deposits, as of a
recent date, and upon reasonable request shall provide an updated version of
such records; PROVIDED, HOWEVER, that Seller shall not be obligated to provide
such updated records more than twice.
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(c) Notwithstanding the provisions of Section 7.6, neither Purchaser nor Seller
shall object to the use by depositors of the Deposits of payment orders issued
to or ordered by such depositors on or prior to the Closing Date, which payment
orders bear the name, or any logo, trademark, service ▇▇▇▇ or proprietary ▇▇▇▇,
of Seller, Firstar, USB or any of their respective Affiliates.
4.3 Direct Deposits. Seller will use all reasonable efforts to transfer to
Purchaser on the Closing Date all of those automated clearing house ("ACH") and
FedWire direct deposit arrangements related (by agreement or other standing
arrangement) to the Deposits. For a period of three (3) months following the
Closing Date, in the case of ACH direct deposits to accounts containing Deposits
(the final Business Day of such period being the "ACH Direct Deposit Cut-Off
Date"), Seller shall transfer to Purchaser all received ACH Direct Deposits at
10:30 a.m. Central Standard Time each Business Day. Such transfers shall contain
Direct Deposits effective for that Business Day only unless otherwise agreed by
Seller and Buyer. On each Business Day, for a period of thirty (30) calendar
days following the Closing Date (the final Business Day of such period being the
"FedWire Direct Deposit Cut-Off Date"), FedWires received by Seller shall be
returned (as soon as is possible after receipt) to the originator with an
indication of Purchaser's correct Wire Room contact information and an
instruction that such wire should be sent to Purchaser. Compensation for ACH
direct deposits or FedWire direct deposits not forwarded to Purchaser on the
same Business Day as that on which Seller has received such deposits will be
handled in accordance with the applicable rules established by the United States
Council on International Banking. After the respective ACH Direct Deposit
Cut-Off Date or FedWire Direct Deposit Cut-Off Date, Seller may discontinue
accepting and forwarding ACH and FedWire entries and funds and return such
direct deposits to the originators marked "Account Closed." Seller and its
Affiliates shall not be liable for any overdrafts that may thereby be created.
Purchaser and Seller shall agree on a reasonable period of time prior to the
Closing during which Seller will no longer be obligated to accept new direct
deposit arrangements related to the Branches. At the time of the ACH Direct
Deposit Cut-Off Date, Purchaser will provide ACH originators with account
numbers relating to the Deposits.
4.4 Direct Debits. As soon as practicable after execution of this Agreement and
after the notice provided in Section 4.2(a), Purchaser shall send appropriate
notice to all customers having accounts constituting Deposits, the terms of
which provide for direct debit of such accounts by third parties, instructing
such customers concerning the transfer of customer direct debit authorizations
from Seller to Purchaser. Such notice shall be in a form reasonably agreed to by
the parties hereto. For a period of three (3) months following the Closing,
Seller shall transfer to Purchaser all received direct debits on accounts
constituting Deposits at 9:00 a.m. Central Standard Time each Business Day. Such
transfers shall contain Direct Debits effective for that Business Day only.
Thereafter, Seller may discontinue forwarding such entries and return them to
the originators marked "Account Closed." Purchaser and Seller shall agree on a
reasonable period of time prior to the Closing during which Seller will no
longer be obligated to accept new direct debit arrangements related to the
Branches. On the Closing Date, Purchaser shall provide ACH originators of such
Direct Debits with account numbers relating to the Deposits.
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4.5 Escheat Deposits. No currently escheated deposits are being sold. After
Closing, Purchaser shall be solely responsible for the proper reporting and
transmission to the appropriate governmental entity of Escheat Deposits.
4.6 Access to Records. From and after the Closing Date, each of the parties
shall permit the other reasonable access to any applicable Records in its
possession relating to matters arising on or before the Closing Date and
reasonably necessary in connection with any claim, action, litigation or other
proceeding involving the party requesting access to such Records or in
connection with any legal obligation owed by such party to any present or former
depositor or other customer. All Records, whether held by Purchaser or Seller,
shall be maintained for such periods as are required by law, unless the parties
shall agree in writing to a longer period.
4.7 Interest Reporting and Withholding. (a) Unless otherwise agreed to by the
parties, Seller will report to applicable taxing authorities and holders of
Deposits, with respect to the period from January 1 of the year in which the
Closing occurs through the Closing Date, all interest (including dividends and
other distributions with respect to money market accounts) credited to, withheld
from and any early withdrawal penalties imposed upon the Deposits. Purchaser
will report to the applicable taxing authorities and holders of Deposits, with
respect to all periods from the day after the Closing Date, all such interest
credited to, withheld from and any early withdrawal penalties imposed upon the
Deposits. Any amounts required by any governmental agencies to be withheld from
any of the Deposits through the Closing Date will be withheld by Seller in
accordance with applicable law or appropriate notice from any governmental
agency and will be remitted by Seller to the appropriate agency on or prior to
the applicable due date. Any such withholding required to be made subsequent to
the Closing Date will be withheld by Purchaser in accordance with applicable law
or appropriate notice from any governmental agency and will be remitted by
Purchaser to the appropriate agency on or prior to the applicable due date.
(b) Unless otherwise agreed by the parties, Seller shall be responsible for
delivering to payees all IRS notices with respect to information reporting and
tax identification numbers required to be delivered through the Closing Date
with respect to the Deposits, and Purchaser shall be responsible for delivering
to payees all such notices required to be delivered following the Closing Date
with respect to the Deposits.
(c) Unless otherwise agreed by the parties, Seller will make all required
reports to applicable tax authorities and to obligors on Loans purchased on the
Closing Date, with respect to the period from January 1 of the year in which the
Closing occurs through the Closing Date, concerning all interest and points
received by the Seller. Purchaser will make all required reports to applicable
tax authorities and to obligors on Loans purchased on the Closing Date, with
respect to all periods from the day after the Closing Date, concerning all such
interest and points received.
4.8 Negotiable Instruments. Seller will remove any supply of Seller's money
orders, official checks, gift checks, travelers' checks or any other negotiable
instruments located at each of the Branches on the Closing Date.
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4.9 ATM/Debit Cards; POS Cards. Seller will provide Purchaser with a list of ATM
access/debit cards and Point-of-Sale ("POS") cards issued by Seller to
depositors of any Deposits, and a record thereof in a format reasonably agreed
to by the parties containing all addresses therefor, as soon as practicable and
in no event later than forty-five (45) calendar days after the date of this
Agreement. At or promptly after the Closing, Seller will provide Purchaser with
a revised record through the Closing. In instances where a depositor of a
Deposit made an assertion of error regarding an account pursuant to the
Electronic Funds Transfer Act and Federal Reserve Board Regulation E, and
Seller, prior to the Closing, recredited the disputed amount to the relevant
account during the conduct of the error investigation, Purchaser agrees to
comply with a written request from Seller to debit such account in a stated
amount and remit such amount to Seller, to the extent of the balance of funds
available in the accounts. Seller agrees to indemnify Purchaser for any claims
or losses that Purchaser may incur as a result of complying with such request
from Seller. Seller shall not be required to disclose to Purchaser customers'
PINS or algorithms or logic used to generate PINs. Purchaser shall reissue ATM
access/debit cards to depositors of any Deposits prior to the Closing Date,
which cards shall be effective as of the Closing Date. Purchaser and Seller
agree to settle any and all ATM transactions and POS transactions effected on or
before the Closing Date, but processed after the Closing Date, as soon as
practicable following the processing thereof. In addition, Purchaser assumes
responsibility for and agrees to pay on presentation all POS transactions
initiated before or after the Closing with POS cards issued by Seller to access
Transaction Accounts.
4.10 Leasing of Personal Property. Seller shall cancel or terminate any Personal
Property Lease as of the Closing Date, if any, subject to the Seller providing
prior notice to Purchaser in order to allow Purchaser in its discretion a
reasonable opportunity to assume said lease, subject to lessor consent, if
neccessary.
4.11 Data Processing Conversion for the Branches and Handling of Certain Items.
(a) The conversion of the data processing with respect to the Branches and the
Assets and Liabilities will be completed on the Closing Date. Seller and
Purchaser agree to cooperate to facilitate the orderly transfer of data
processing information in connection with the P&A Transaction. Within ten (10)
calendar days of the date of this Agreement, Purchaser and/or its
representatives shall be permitted access (subject to the provisions of section
7.2(a)) to review each Branch for the purpose of installing automated equipment
for use by Branch personnel. Following the receipt of all Regulatory Approvals
(except for the expiration of statutory waiting periods), Purchaser shall be
permitted, at its expense, to install and test communication lines, both
internal and external, from each site and prepare for the installation of
automated equipment on the Closing Date.
(b) As soon as practicable and in no event more than three (3) Business Days
after the Closing Date, Purchaser shall mail to each depositor in respect of a
Transaction Account, at no expense to Seller (i) a letter approved by the Seller
requesting that such depositor promptly cease writing Seller's drafts against
such Transaction Account and (ii) new drafts which such depositor may draw upon
Purchaser against such Transaction Accounts. The parties hereto shall use their
reasonable best efforts to develop procedures that cause Seller's drafts against
Transaction Accounts received after the Closing Date to be cleared through
Purchaser's then-current clearing procedures. During the forty-five (45)
calendar-day period after the Closing Date, if it is not possible to clear
Transaction Account drafts through Purchaser's then-current clearing procedures,
Seller shall make available to Purchaser as soon as practicable all Transaction
Account drafts
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drawn against Transaction Accounts. Seller shall have no obligation to pay such
forwarded Transaction Account drafts. Upon the expiration of such forty-five
(45) calendar-day period, Seller shall cease forwarding drafts against
Transaction Accounts. Seller shall be compensated for its processing of the
drafts and for other services rendered to Purchaser during the forty-five (45)
calendar-day period following the Closing Date in accordance with Schedule 4.11.
(c) Any items that were credited for deposit to or cashed against a Deposit
prior to the Closing and are returned unpaid on or within forty-five (45)
calendar days after the Closing Date ("Returned Items") will be handled as set
forth herein. Except as set forth below, Returned Items shall be the
responsibility of Seller. If depositor's bank account at Seller is charged for
the Returned Item, Seller shall forward such Returned Item to Purchaser. If upon
Purchaser's receipt of such Returned Item there are sufficient funds in the
Deposit to which such Returned Item was credited or any other Deposit
transferred at the Closing standing in the name of the party liable for such
Returned Item, Purchaser will debit any or all of such Deposits an amount equal
in the aggregate to the Returned Item, and shall repay that amount to Seller. If
there are not sufficient funds in the Deposit because of Purchaser's failure to
honor holds placed on such Deposit, Purchaser shall repay the amount of such
Returned Item to Seller. Any items that were credited for deposit to or cashed
against an account at the Branches to be transferred at the Closing prior to the
Closing and are returned unpaid more than forty-five (45) calendar days after
the Closing will be the responsibility of Seller.
(d) During the forty-five (45) calendar-day period after the Closing Date, any
deposits or other payments received by Purchaser in error shall be returned to
Seller within two (2) Business Days of receipt by Purchaser. Payments received
by Seller with respect to any Loans shall be forwarded to Purchaser within two
(2) Business Days of receipt by Seller.
(e) Prior to the Closing Date, Purchaser will open and maintain two demand
deposit accounts with the Seller, one for deposits and one for loans/lines, to
be used for settlement activity following the Closing Date. Seller will provide
Purchaser with a daily statement for these accounts. Purchaser will be
responsible for initiating all funding and draw-down activity against these
accounts. The Purchaser will ensure that all debit (negative) balances are
funded no later then one day following the day the account went into a negative
status. Activity that will be settled through these accounts will include but
not be limited to: items drawn on a Deposit but presented to the Seller for
payment, ACH transactions, Direct Debit transactions, Returned Items, and
payments made to the Seller for Loans.
4.12 Information Regarding Mortgage Loans. Not later than fifteen (15) calendar
days prior to the Closing Date, Seller will provide to Purchaser information
regarding the Mortgage Loans on a magnetic disk or other media acceptable to the
parties, which shall contain the following fields of information:
Current Principal Balance;
Delinquency Status as of the Run Date;
Paid to Date; Current Interest Rate;
Total Monthly Payment;
Next Interest Rate Change Date; and
Next Payment Change Date.
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4.13 Employee Training. Seller and Purchaser shall cooperate in order to permit
Purchaser to train Seller's employees at the Branches who choose to accept
employment with Purchaser, and Seller shall, as mutually scheduled by Seller and
Purchaser for reasonably limited periods of time such that Seller's ongoing
operations at the Branches shall not be disrupted, use its reasonable best
efforts to excuse such employees from their duties at the Branches for the
purpose of training and orientation by Purchaser. Purchaser shall pay the full
salary or wages of replacements for employees so excused for the periods during
which such employees are so excused, where such replacements are reasonably
determined by Seller to be needed to maintain ongoing operations at the branches
without material disruption.
4.14 Review of Title.
(a) Title Commitment. Within twenty (20) days from the date hereof, Purchaser
shall, at Seller's sole cost, order and obtain from a mutually acceptable title
insurance company (the "Title Company") a Commitment for Owners Policy of Title
Insurance (the "Title Commitment") in the amount of Purchase Price allocated to
the Owned Real Property covering the Owned Real Property, issued by the local
agent of the Title Company, which Title Commitment shall include copies of all
instruments shown as exceptions thereto. The Title Commitment shall set forth
the status of title to the Owned Real Property and shall show all liens,
encumbrances, reservations, and restrictions, if any, relating to the Owned Real
Property.
(b) Survey. Promptly after the date hereof, Seller shall deliver to Purchaser
all existing surveys for the Owned Real Property in the possession of Seller, if
any. Purchaser may, at its sole cost and expense, cause to be prepared an update
of such survey, or obtain its own surveys (herein called the "Survey") and field
notes describing the Owned Real Property, prepared and certified by a surveyor
satisfactory to Purchaser.
(c) Review of Commitment and Survey. Purchaser shall have the right to review
the Title Commitment and Survey for a period (the "Title Review Period") of
twenty (20) days from the later of (i) receipt of the Title Commitment and
copies of all documents referred to therein, or (ii) the receipt of the Survey.
If the Title Commitment fails to show good and indefeasible title to the Owned
Real Property to be in Seller free and clear of all liens, encumbrances,
assessments, reservations and restrictions other than customary exceptions to
title reflected on an ALTA standard form for commitments to issue owner's
policies of title insurance, then Purchaser may give Seller written notice of
its objections to any such non-conforming title exceptions or its objections to
the Survey, provided that such exceptions could reasonably be expected to
interfere with Purchaser's contemplated use or ownership of the Owned Real
Property, or the value thereof (the "Objections") on or before the expiration of
the Title Review Period. Any title encumbrances set forth in the Title
Commitment or the Survey to which Purchaser does not object within the Title
Review Period shall be deemed to be a Permitted Encumbrance (hereinafter
defined).
(e) Cure Period. Seller shall have twenty (20) days ("Cure Period") from
Seller's receipt of written notice of any such Objections within which to make
such arrangements and to take such steps reasonably acceptable to Purchaser to
satisfy Purchaser's Objections. If Seller fails to cure
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any such Objections to the reasonable satisfaction of Purchaser within the time
provided above and give Purchaser written notice thereof (or evidence that same
will be so cured at the Closing with an adjustment to the Purchase Price),
Purchaser shall have the right to, by written notice to Seller within five (5)
days following the expiration of the Cure Period, elect to consummate the
purchase of the Owned Real Property subject to the uncured Objections with a
reduction or adjustment of the Purchase Price on account of such Objections in
an amount necessary to enable Purchaser to cure such objections post-closing as
mutually determined by both Seller and Purchaser with assistance of the Title
Company, if necessary. If Purchaser instead elects not to proceed, Purchaser
shall instead lease the Owned Real Property as provided in Section 12 c (i) and
(iv) of this Agreement.
(f) Permitted Encumbrances. Purchaser shall be deemed to have approved and to
have agreed to purchase the Property subject to all exceptions to title shown in
the Title Commitment or matters shown on the Survey that Purchaser has approved
or is deemed to have approved pursuant to this Section 4.14 (the "Permitted
Encumbrances").
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Purchaser as follows, except as set forth in a
disclosure schedule of Seller delivered to Purchaser in connection with this
execution and delivery of this Agreement as of the date hereof (and as of the
Closing Date):
5.1 Corporate Organization and Authority. Seller is a national banking
association, duly organized and validly existing under the laws of the United
States, and has the requisite power and authority to conduct the business now
being conducted at the Branches. Seller has the requisite corporate power and
authority and has taken all corporate action necessary in order to execute and
deliver this Agreement and to consummate the transactions contemplated hereby.
This Agreement is a valid and binding agreement of Seller enforceable in
accordance with its terms subject, as to enforcement, to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general equity
principles.
5.2 No Conflicts. The execution, delivery and performance of this Agreement by
Seller does not, and will not, (i) violate any provision of its charter or
by-laws or (ii) violate or constitute a breach of, or default under, any law,
rule, regulation, judgment, decree, ruling or order of any court, government or
governmental agency to which Seller is subject or any agreement or instrument of
Seller, or to which Seller is subject or by which Seller is otherwise bound,
which violation, breach, contravention or default referred to in this clause
(ii), individually or in the aggregate, would reasonably be expected to have a
Material Adverse Effect (assuming the receipt of any required consents of
lessors under the Branch Leases in respect of the transactions herein
contemplated). Seller has all material licenses, franchises, permits,
certificates of public convenience, orders and other authorizations of all
federal, state and local governments and governmental authorities necessary for
the lawful conduct of its business at each of the Branches as now conducted and,
except as would not individually or in the aggregate be reasonably
25
expected to have a Material Adverse Effect, all such licenses, franchises,
permits, certificates of public convenience, orders and other authorizations,
are valid and in good standing and, to Seller's knowledge, are not subject to
any suspension, modification or revocation or proceedings related thereto.
5.3 Approvals and Consents. Other than Regulatory Approvals or as otherwise
disclosed in writing to Purchaser by Seller prior to the date hereof, no
notices, reports or other filings are required to be made by Seller with, nor
are any consents, registrations, approvals, permits or authorizations required
to be obtained by Seller from, any governmental or regulatory authorities of the
United States or the several States in connection with the execution and
delivery of this Agreement by Seller and the consummation of the transactions
contemplated hereby by Seller, the failure to make or obtain any or all of
which, individually or in the aggregate, would reasonably be expected to have a
Material Adverse Effect.
5.4 Tenants. There are no tenants of the Real Property except as disclosed to
Purchaser.
5.5 Leases. Each Branch Lease and each Personal Property Lease is the valid and
binding obligation of Seller, and to Seller's knowledge, of each other party
thereto; and, except as would not reasonably be expected to have a Material
Adverse Effect, there does not exist with respect to Seller's obligations
thereunder, or, to Seller's knowledge, with respect to the obligations of the
lessor thereof, any default, or event or condition which constitutes or, after
notice or passage of time or both, would constitute a default on the part of
Seller or the lessor under any such Branch Lease or Material Personal Property
Lease. As used in this Section, the term "lessor" includes any sub-lessor of the
property to Seller. The Branch Leases give Seller the right to occupy the
building and land comprising the related Branch. Except as described on Schedule
5.5, there are no subleases relating to any Branch created or suffered to exist
by Seller, or to Seller's knowledge, created or suffered to exist by any other
person. Each Branch Lease and each material Personal Property Lease is current
and all rents, expenses and charges payable by Seller thereunder have been paid
or accrued pursuant to the terms thereof (except for any payments not yet
delinquent or as to which the obligation to make such payment is being contested
in good faith). True and correct copies of each Branch Lease and each material
Personal Property Lease have heretofore been made available to Purchaser.
5.6 Litigation and Undisclosed Liabilities. Except as set forth in Schedule 5.6,
there are no material actions, suits or proceedings that have a reasonable
likelihood of an adverse determination pending or, to Seller's knowledge,
threatened in writing against Seller, any of the Branches or the Assets. Except
as set forth in Schedule 5.6, there are no obligations or liabilities (whether
or not accrued, contingent or otherwise) or, to Seller's knowledge, facts or
circumstances that would reasonably be expected to result in any claims against
or obligations or liabilities of Seller that, individually or in the aggregate,
would reasonably be expected to have a Material Adverse Effect.
5.7 Regulatory Matters. (a) Except as previously disclosed in writing to
Purchaser, there are no pending or, to Seller's knowledge, threatened disputes
or controversies between Seller and any federal, state or local governmental
agency or authority that, individually or in the aggregate, would reasonably be
expected to have a Material Adverse Effect.
26
(b) Neither Seller nor any of its Affiliates has received any indication from
any federal or state governmental agency or authority that such agency would
oppose or refuse to grant a Regulatory Approval.
(c) Seller is not a party to any written order, decree, agreement or memorandum
of understanding with, or commitment letter or similar submission to, any
federal or state regulatory agency or authority charged with the supervision or
regulation of depository institutions, nor has Seller been advised by any such
agency or authority that it is contemplating issuing or requesting any such
order, decree, agreement, memorandum of understanding, commitment letter or
submission, in each case which, individually or in the aggregate, would
reasonably be expected to have a Material Adverse Effect.
5.8 Compliance with Laws. The business of the Branches and the Commercial
Banking Group has been conducted in compliance with all federal, state and local
laws, regulations and ordinances applicable thereto, except for any failures to
comply that would not, individually or in the aggregate, result in a Material
Adverse Effect.
5.9 Loans. (a) Subject to Section 7.3 and the exclusion of all Excluded Loans,
an accurate list of the Loans as of the date or dates set forth on Schedule 1.1
(e) is set forth on the schedules or magnetic media delivered to Purchaser on or
before the date hereof. Such magnetic media will be updated to include an
accurate list of the Loans as of the Closing Date and delivered to Purchaser
together with a hard copy printout thereof as soon as is reasonably practicable
after the Closing Date. With respect to each Loan (other than Overdraft Loans):
(i) Such Loan was solicited and originated in material compliance
with all applicable requirements of federal, state, and local
laws and regulations in effect at the time of such
solicitation and origination; and there was no fraud on the
part of the Seller with respect to the origination of any
Loan;
(ii) Each note evidencing a Loan and any related security
instrument (including, without limitation, any guaranty or
similar instrument) constitutes a valid and legally binding
obligation of the obligor thereunder enforceable in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent
transfers, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors'
rights and to general equity principles;
(iii) The collateral for each secured Loan is (A) the collateral
described in the related Loan Documents and (B) subject to a
valid, enforceable and perfected lien;
(iv) To Seller's knowledge, no claims or defenses to the
enforcement of such Loan have been asserted and Seller is
aware of no acts or omissions that would give rise to any
claim or right of rescission, setoff, counterclaim or defense
by a borrower, obligor, guarantor or any other person
obligated to perform under any related Loan Documents;
27
(v) As of the Closing Date, to Seller's knowledge, no obligor on
such Loan is the subject of any proceeding in bankruptcy;
(vi) Such Loan was made substantially in accordance with Seller's
standard underwriting and documentation guidelines, which are
generally consistent with prudent and customary industry
standards, as in effect at the time of its origination and has
been administered substantially in accordance with the Loan
Documents and Seller's standard loan servicing procedures,
which are generally consistent with prudent and customary
industry standards, as in effect from time to time;
(vii) All information provided hereunder pertaining to such Loan is
a true and correct reflection of Sellers' records regarding
such Loan in all material respects;
(viii) Each Loan was made in compliance with all applicable usury
laws;
(ix) Immediately prior to the Closing the Seller will be the sole
owner of each Loan, free and clear of any Encumbrance; and
(x) The terms of the notes or the mortgages have not been altered,
modified or waived in any material respect, except by a
written instrument contained in the Loan Documents.
(b) With respect to the Overdraft Loans, each:
(i) has been administered in compliance in all material respects
with all applicable laws;
(ii) is a valid and legally binding obligation of the borrower
enforceable against the borrower in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and
to general equity principles; and
(iii) is not subject to any valid defense, counterclaim or set-off
of any kind.
(c) The security interest in the Deposit account securing each Deposit-Related
Loan is a legal, valid and binding obligation enforceable against the obligor
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
(d) From the date hereof through the Closing Date, Seller shall have adhered to
a policy regarding the extension of terms on consumer loans consistent with past
practice, and Seller shall have adhered to and applied its existing loan risk
rating system in connection with the Loans consistent with past practice.
28
(e) Except for home equity loans, a title insurance policy is in effect for each
Loan secured by real property except as documented in the related Loan Documents
or other Records, and Seller is the sole owner of each such loan, except for
such participations as are documented in the related Loan documents or other
Records.
(f) With respect to each Loan that is a home equity Loan, except as documented
in the related Loan Documents or other Records:
(i) The maximum original term on such Loan is three hundred sixty
(360) months;
(ii) No part of the property which is security for such Loan has
been released;
(iii) The transfer and assignment of such Loan and Loan Documents
pertaining thereto will be in compliance with applicable law
and regulations;
(iv) A title insurance policy is in effect for any such Loan with
an original principal amount in excess of $250,000; and
(v) Such Loan is secured by a valid first, second or third lien.
5.10 Records. The Records respecting the operations of the Branches, the
Commercial Banking Group and the Assets and Liabilities accurately reflect in
all material respects as of their respective dates the net book value of the
Assets and Liabilities being transferred to Purchaser hereunder. The Records
include all information reasonably necessary to service the Deposits and Loans
on an ongoing basis, and to otherwise operate the business being acquired under
this Agreement in substantially the manner currently operated by Seller.
5.11 Title to Assets. Subject to the terms and conditions of this Agreement, on
the Closing Date Purchaser will acquire good and marketable title to all of the
Assets (other than the Owned Real Estate which shall be subject to the
representations set forth in Section 5.14), free and clear of any Encumbrances.
5.12 Deposits. Except as set forth in Schedule 5.12, all of the Deposit accounts
have been administered and originated, in compliance with the documents
governing the relevant type of Deposit account and all applicable laws. The
Deposit accounts are insured by the Bank Insurance Fund or the Savings
Association Insurance Fund of the FDIC up to the current applicable maximum
limits, and no action is pending or, to Seller's knowledge, threatened by the
FDIC with respect to the termination of such insurance.
5.13 Environmental Laws; Hazardous Substances. Except as disclosed on Schedule
5.13, each parcel of Real Property:
(i) is and has been operated by Seller in compliance with all
applicable Environmental Laws;
29
(ii) is not the subject of any written notice from any governmental
authority or other person alleging the violation of or
liability under, any applicable Environmental Laws;
(iii) is not currently subject to any court order, administrative
order or decree arising under any Environmental Law;
(iv) to Seller's knowledge, has not been used for the disposal of
Hazardous Substances and does not contain any Hazardous
Substances in violation of any applicable Environmental Law;
and
(v) to Seller's knowledge, has not had any releases, emissions, or
discharges of Hazardous Substances except as permitted under
applicable Environmental Laws.
For purposes of clauses (i) - (iii), with respect to the parcels which are
subject to Branch Leases that are not associated with ground leases, such
representation is made to the knowledge of Seller.
5.14 Title to the Owned Real Property; Liens and Permitted Encumbrances. Seller
has a valid and indefeasible ownership interest in all of the Owned Real
Property, free and clear of all mortgages, pledges, liens, security interests,
conditional sales agreements, encumbrances or other charges, except for the
Permitted Encumbrances. In addition, Seller will cause any and all such
mortgages, pledges, liens, security interests, conditional sales agreements,
encumbrances or charges that are not Permitted Encumbrances to be paid in full
or otherwise discharged with the proceeds of the sale contemplated by this
Agreement.
5.15 Brokers' Fees. Seller has not employed any broker or finder or incurred any
liability for any brokerage fees, commission or finders' fees in connection with
the transactions contemplated by this Agreement.
5.16 Taxes. Seller has no currently due but unpaid taxes and Seller is not aware
of any other unpaid taxes which may result in liens being placed on the Assets,
Loans or the Deposits.
5.17 Financial Information. The financial information supplied by Seller to
Purchaser reflects the true and accurate net book value of the Loans and the
Personal Property in accordance with generally accepted accounting principles
consistently applied.
5.18 Defects. To Seller's knowledge (i) there are no material defects in the
Improvements and no material repairs or replacements are required to or of the
electrical, heating or other major operational systems in the Improvements on
the Owned Real Property; (ii) Seller has not received written notice from any
governmental authority, insurance company, or other board of fire underwriters
or other body exercising similar functions with respect to the need for any
material repairs to or replacements of any of the Improvements. Seller
acknowledges and agrees and warrants that all electrical, heating and other
major operational systems in the Improvements on the Owned Real Property shall
be in working order at Closing.
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5.19 Fraud. There is no action, suit, proceeding pending before any court, or
arbitrator or any governmental body, agency or official, or any investigation
pending by Seller or any third party, nor to Seller's knowledge is any such
action, suit, proceeding or investigation threatened or contemplated, with
respect to any of the Deposits as to fraud, kiting or similar matters.
5.20 Limitations on Representations and Warranties. Notwithstanding anything to
the contrary contained herein, Seller makes no representations or warranties to
Purchaser in this Agreement or in any agreement, instrument or other document
executed in connection with any of the transactions contemplated hereby or
provided or prepared pursuant hereto or in connection with any of the
transactions contemplated hereby:
(a) As to whether, or the length of time during which, any accounts will be
maintained by the depositors at the Branches after the Closing Date; or
(b) Except to the extent otherwise set forth in this Agreement, as to the
creditworthiness, credit history or financial condition of any obligor.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to Seller, on the date hereof and again at
Closing, as follows:
6.1 Corporate Organization and Authority. Purchaser is a national banking
association, duly organized and validly existing under the laws of the United
States and has the requisite power and authority to conduct the business
conducted at the Branches substantially as currently conducted by Seller.
Purchaser has the requisite corporate power and authority and has taken all
corporate action necessary in order to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. This Agreement is a valid and
binding agreement of Purchaser enforceable in accordance with its terms subject,
as to enforcement, to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles.
6.2 No Conflicts. The execution, delivery and performance of this Agreement by
Purchaser does not, and will not, (i) violate any provision of its charter or
by-laws or (ii) subject to Regulatory Approvals, violate or constitute a breach
of, or default under, any law, rule, regulation, judgment, decree, ruling or
order of any court, government or governmental authority to which Purchaser is
subject or any agreement or instrument of Purchaser, or to which Purchaser is
subject or by which Purchaser is otherwise bound, which violation, breach,
contravention or default referred to in this clause (ii), individually or in the
aggregate, would be reasonably expected to have a Material Adverse Effect.
6.3 Approvals and Consents. Other than Regulatory Approvals, no notices, reports
or other filings are required to be made by Purchaser with, nor are any
consents, registrations, approvals, permits or authorizations required to be
obtained by Purchaser from, any governmental or regulatory authorities of the
United States or the several States in connection with the execution
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and delivery of this Agreement by Purchaser and the consummation of the
transactions contemplated hereby by Purchaser, the failure to make or obtain any
or all of which, individually or in the aggregate, would be reasonably expected
to have a Material Adverse Effect.
6.4 Regulatory Matters. (a) Except as previously disclosed in writing to Seller,
there are no pending or, to Purchaser's knowledge, threatened disputes or
controversies between Purchaser and any federal, state or local governmental
agency or authority that, individually or in the aggregate, would be reasonably
expected to have a Material Adverse Effect.
(b) Neither Purchaser nor any of its Affiliates has received any indication from
any federal or state governmental agency or authority that such agency would
oppose or refuse to grant a Regulatory Approval or impose a Burdensome
Condition.
(c) Purchaser is not a party to any written order, decree, agreement or
memorandum of understanding with, or commitment letter or similar submission to,
any federal or state regulatory agency or authority charged with the supervision
or regulation of depository institutions, nor has Purchaser been advised by any
such agency or authority that it is contemplating issuing or requesting any such
order, decree, agreement, memorandum of understanding, commitment letter or
submission, in each case which, individually or in the aggregate, would be
reasonably expected to have a Material Adverse Effect.
(d) Purchaser is (i) at least "adequately capitalized", as defined for purposes
of the FDIA, and (ii) in compliance with all capital requirements, standards and
ratios required by each state or federal bank regulator with jurisdiction over
Purchaser. Certain affiliated companies with an ownership interest in Purchaser
will provide additional capital to Purchaser prior to Closing of the P&A
Transaction and as required in order to secure Regulatory Approval. After that
capital is provided, Purchaser will be, on a pro forma basis giving effect to
the P&A Transaction, (i) at least "adequately capitalized", as defined for
purposes of the FDIA, and (ii) in compliance with all capital requirements,
standards and ratios required by each state or federal bank regulator with
jurisdiction over Purchaser, including, without limitation, any such higher
requirement, standard or ratio as shall apply to institutions engaging in the
acquisition of insured institution deposits, assets or branches.
(e) Purchaser has no knowledge that it will be required to divest deposit
liabilities, branches, loans or any business or line of business as a condition
to the receipt of any of the Regulatory Approvals.
(f) Each of the subsidiaries or Affiliates of Purchaser that is an insured
depository institution was rated "Satisfactory" or "Outstanding" following its
most recent Community Reinvestment Act examination by the regulatory agency
responsible for its supervision. Purchaser has received no notice of and has no
knowledge of any planned or threatened objection by any community group to the
transactions contemplated hereby.
6.5 Litigation and Undisclosed Liabilities. There are no actions, suits or
proceedings that have a reasonable likelihood of an adverse determination
pending or, to Purchaser's knowledge, threatened against Purchaser, or
obligations or liabilities (whether or not accrued, contingent or
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otherwise) or, to Purchaser's knowledge, facts or circumstances that could
reasonably be expected to result in any claims against or obligations or
liabilities of Purchaser that, individually or in the aggregate, would have a
Material Adverse Effect.
6.6 Operation of the Branches. Purchaser intends to continue to provide retail
and business banking services in the geographical area served by the Branches.
6.7 Financing Available. Purchaser will have as of the Closing Date available
sufficient cash or financing pursuant to binding agreements or commitments to
fund the P&A Transaction. Except for the funding to be provided by certain
affiliates of Purchaser as referenced in Section 6.4, Purchaser's ability to
consummate the transactions contemplated by this Agreement is not contingent on
raising any equity capital, obtaining financing therefor, consent of any lender
or any other matter relating to funding the P&A Transaction.
6.8 Brokers' Fees. Purchaser has not employed any broker or finder or incurred
any liability for any brokerage fees, commission or finders' fees in connection
with the transactions contemplated by this Agreement, except for fees and
commissions for which Purchaser shall be solely liable.
6.9 Lending Limit. As of December 31, 2000, Purchaser's legal lending limit is
at least $9,700,000, and, on the Closing Date, shall not be less than
$13,500,000.
ARTICLE 7
COVENANTS OF THE PARTIES
7.1 Activity in the Ordinary Course. Until the Closing Date, except as may be
required in connection with the Merger or as contemplated hereby, (a) Seller
shall conduct the business of the Branches (including, without limitation,
filling open positions at the Branches but excluding job posting in the Branches
for open positions at other offices of Seller or its Affiliates) in the ordinary
and usual course of business consistent with past practice and (b) Seller shall
not, without the prior written consent of Purchaser, which consent shall not be
unreasonably withheld:
(i) Increase or agree to increase the salary, remuneration or
compensation of any Branch Employee other than in accordance
with Seller's existing customary policies generally applicable
to employees having similar rank or duties, or pay or agree to
pay any uncommitted bonus to any Branch Employee other than
regular bonuses granted in the ordinary course of Seller's
business (which bonuses, to the extent they constitute stay
bonuses, in any event, shall be the responsibility of Seller),
or transfer any Branch Employee to another branch or office of
Seller or any of its Affiliates;
(ii) Offer interest rates or terms on any category of deposits at a
Branch except as determined in a manner materially consistent
with Seller's practice with respect to its branches which are
not being sold;
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(iii) Transfer to or from any Branch to or from any of Seller's
other operations or branches any material Assets or any
Deposits, except (A) in the ordinary course of business or as
contemplated by this Agreement, (B) upon the unsolicited
request of a depositor or customer, or (C) if such Deposit is
pledged as security for a loan or other obligation that is not
a Loan;
(iv) Sell, transfer, assign, encumber or otherwise dispose of or
enter into any contract, agreement or understanding to sell,
transfer, assign, encumber or dispose of any of the Assets
existing on the date hereof, except in the ordinary course of
business consistent with past practice;
(v) Sell, transfer, assign, encumber or otherwise dispose of or
enter into any contract, agreement or understanding to sell,
transfer, assign, encumber or dispose of any Loan;
(vi) Make or agree to make any material improvements to the Owned
Real Property, except with respect to commitments for such
made on or before the date of this Agreement and set forth on
Schedule 7.1(a)(vi) and normal maintenance or refurbishing
purchased or made in the ordinary course of business;
(vii) File any application or give any notice to relocate or close
any Branch or relocate or close any Branch;
(viii) Amend, terminate or extend in any material respect any Branch
Lease or Tenant Lease; PROVIDED, HOWEVER, Seller may extend
any Branch Lease or Tenant Lease if, in its reasonable
business judgment, Seller determines such extension is
necessary to deliver the Branch on the Closing Date as a fully
operative branch banking operation;
(ix) Except as permitted by this Section 7.1, knowingly take, or
knowingly permit its Affiliates to take, any action (A)
impairing Purchaser's rights in any Deposit or Asset, (B)
impairing in any way the ability of Purchaser to collect upon
any Loan, or (C) except in the ordinary course of servicing,
waiving any material right, whether in equity or at law, that
it has with respect to any Loan; or
(x) Extend credit otherwise then in accordance with its existing
lending policies and credit authorities; provided, however,
that the Seller may also make any such loan in the event that
(A) the Seller has delivered to Purchaser or its designated
representative a notice of its intention to make such loan and
such information as Purchaser or its designated representative
shall require in respect thereof and (B) the Purchaser or its
designated representative shall not have objected to such loan
by giving written or facsimile notice of such objection within
one (1) business day following the delivery to Purchaser or
its designated representative of the notice and information as
aforesaid.
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(xi) Make any contract, commitment or renew any contract or
commitment related to any of the Branches in an amount where
payments would exceed $100,000 or which exceeds twelve (12)
months.
(xii) Agree with, or commit to, any person to do any of the things
described in clauses (i) through (ix) except as contemplated
hereby.
7.2 Access and Confidentiality. (a) Until the Closing Date, Seller shall afford
to Purchaser and its officers and authorized agents and representatives
reasonable access to the properties, books, records, contracts, documents, files
(including Loan files) and other information of or relating to the Assets and
Liabilities. Purchaser and Seller each will identify to the other, within ten
(10) calendar days after the date hereof, a selected group of their respective
salaried personnel that shall constitute a "transition group" and will be
available to Seller and Purchaser, respectively, at reasonable times (limited to
normal operating hours) to provide information and assistance in connection with
Purchaser's investigation of matters relating to the Assets and Liabilities.
Such transition group will also work cooperatively to identify and resolve
issues arising from any commingling of Seller's records with respect to the
Branches with Seller's records for its other branches and operations not subject
to this Agreement. Seller shall furnish Purchaser with such additional financial
and operating data and other information about its business operations at the
Branches, and the Commercial Banking Group and such other offsite operational
facilities as may be reasonably necessary for the orderly transfer of the
business operations of the Branches and the Commercial Banking Group. Any
investigation pursuant to this Section 7.2 shall be conducted in such manner as
not to interfere unreasonably with the conduct of the Seller's business.
Notwithstanding the foregoing, Seller shall not be required to provide access to
or disclose information where such access or disclosure would impose an
unreasonable burden on Seller or any employee of Seller or would violate or
prejudice the rights of customers, jeopardize any attorney-client privilege or
contravene any law, rule, regulation, order, judgment, decree, fiduciary duty or
binding agreement entered into prior to the date of this Agreement. The parties
hereto shall use reasonable efforts to make appropriate substitute disclosure
arrangements under circumstances in which the restrictions of the preceding
sentence apply.
(b) Each party to this Agreement shall hold, and shall cause its respective
directors, officers, employees, agents, consultants and advisors to hold, in
strict confidence, unless necessary to discharge obligations pursuant to Section
7.3 or unless compelled to disclose by judicial or administrative process or, in
the written opinion of its counsel, by other requirements of law or the
applicable requirements of any regulatory agency or relevant stock exchange, all
non-public records, books, contracts, instruments, computer data and other data
and information (collectively, "Information") concerning the other party (or, if
required under a contract with a third party, such third party) furnished it by
such other party or its representatives pursuant to this Agreement (except to
the extent that such information can be shown to have been (i) previously known
by such party on a non-confidential basis, (ii) in the public domain through no
action of such party or its Affiliates or (iii) later lawfully acquired from
other sources by the party to which it was furnished which sources do not have a
duty of confidentiality to the other party), and neither party shall release or
disclose such Information to any other person, except its auditors, attorneys,
financial advisors, bankers, other consultants and advisors and, to the extent
permitted above, to bank regulatory authorities.
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7.3 Regulatory Approvals. (a) As soon as practicable and in no event later than
twenty (20) calendar days after the date of this Agreement, and assuming the
full and timely cooperation and assistance of Seller, Purchaser shall prepare
and file any applications, notices and filing required in order to obtain the
Regulatory Approvals. Purchaser shall use reasonable efforts to obtain each such
approval as promptly as reasonably practicable and, to the extent best possible,
in order to permit the Closing to occur not later than 180 calendar days
following the Merger. Seller will use reasonable best efforts to cooperate in
connection therewith (including the furnishing of any information and any
reasonable undertaking or reasonable commitments which may be required to obtain
the Regulatory Approvals). Each party will provide the other with copies of any
applications and all correspondence relating thereto prior to filing, other than
material filed in connection therewith under a claim of confidentiality.
Purchaser also agrees to furnish any reasonable undertaking or reasonable
commitment, at no additional out of pocket cost to Purchaser, that may be
required in order for Firstar or USB to obtain the Merger Approval. If any
regulatory authority shall require the modification of any of the terms and
provisions of this Agreement as a condition to granting any Regulatory Approval
or the Merger Approvals, the parties hereto will negotiate in good faith to seek
a mutually agreeable adjustment to the terms of the transaction contemplated
hereby, such agreement not to be unreasonably withheld. In addition, and subject
to the foregoing, Seller may be required to convey to Purchaser certain
additional relationships, such as relationships of Branch or Commercial Banking
Group customers who also have other loan or deposit relationships with Seller at
other branches. For example, loans associated with checking accounts or
depository relationships at more than one branch of Seller may be required to be
be assigned to the branch, which may be a Branch, where the borrower has the
largest aggregate deposit balance. Seller will complete its analysis of any such
"split" relationships within fourteen (14) days hereof, and provide such
analysis to Purchaser. Subject to the terms hereof, such "split" relationships
that belong to customers of the Branches, along with such customers, shall be
conveyed to Purchaser, and such "split" relationships that belong to customers
of other branches, along with such customers, will remain with Seller. The
schedules associated with this Agreement shall be adjusted, by mutual agreement
of Seller and Purchaser, accordingly.
7.4 Consents. Seller agrees to use reasonable efforts (such efforts not to
include making payments to third parties) to obtain from lessors and any other
parties to any Branch Leases any required consents to the assignment of the
Branch Leases to Purchaser on the Closing Date; PROVIDED, HOWEVER, the Seller
shall not be obligated to incur any monetary obligations or expenditures to the
parties whose consent is requested in connection with the use of its reasonable
efforts to obtain any such required consents. If any such required consent
cannot be obtained, notwithstanding any other provision hereof, the Assets and
Liabilities associated with the subject Branch, other than any such Branch Lease
as to which consent cannot be obtained, shall nevertheless be transferred to
Purchaser at the Closing and the parties shall negotiate in good faith and
Seller shall use reasonable efforts (such efforts not to include making payments
to third parties) to make alternative arrangements reasonably satisfactory to
Purchaser. In such event, Seller shall not be obligated to deliver physical
possession of the subject Branch or Personal Property to Purchaser at the
Closing. The terms of this Section 7.4 shall not limit Seller's obligations
pursuant to Section 2.3(f).
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7.5 Efforts to Consummate; Further Assurances. (a) Purchaser and Seller agree to
use reasonable best efforts to satisfy or cause to be satisfied as soon as
practicable their respective obligations hereunder and the conditions precedent
to the Closing.
(b) Following the Closing, Seller will duly execute and deliver such
assignments, bills of sale, deeds, acknowledgments and other instruments of
conveyance and transfer as shall at any time be necessary or appropriate to vest
in Purchaser the full legal and equitable title to the Assets.
(c) Subject to Section 4.3, on and after the Closing Date, each party will
promptly deliver to the other all mail and other communications properly
addressable or deliverable to the other as a consequence of the P&A Transaction;
and without limitation of the foregoing, on and after the Closing Date, Seller
shall promptly forward any mail, communications or other material relating to
the Deposits or the Assets transferred on the Closing Date, including, but not
limited to, that portion of any IRS "B" tapes that relates to such Deposits, to
such employees of Purchaser at such addresses as may from time to time be
specified by Purchaser in writing.
(d) The costs incurred by a party in performing its obligations to the other (x)
under Sections 7.5(a) and (c) shall be borne by the initial recipient and (y)
otherwise under this Section 7.5 shall be borne by Purchaser.
7.6 Solicitation of Accounts. (a) Until the Closing Date and for an additional
twelve (12) months following the Closing Date, Seller agrees that it will not
solicit deposits or loans (but may solicit mutual fund purchases or other
investment products or other business) from or to persons or entities who were
depositors or borrowers at or assigned to the Branches or the Commercial Banking
Group on the date hereof with respect to Deposits by personal contact, by
telephone, by facsimile, by mail or other similar solicitation, or in any other
way, except for general solicitations and solicitations that are not directed
specifically to persons or entities who were depositors of the Branches or the
Commercial Banking Group on the date hereof; PROVIDED, HOWEVER, that Seller may
solicit major or statewide depositors (such as, for example, a company with more
than one location or the state government or any agency or instrumentality
thereof) without restriction hereunder, and general, non-targeted solicitations
that may accompany mailings to persons or entities who remain customers of the
Seller in some capacity (such as credit card customers) and who are also
depositors of the Branches or the Commercial Banking Group shall be permitted.
(b) Prior to the Closing Date, Purchaser agrees that it will not attempt to
directly solicit Branch customers through advertising or transact its business
in a way which would induce such Branch customers to close any account and open
accounts directly with Purchaser or would otherwise result in a transfer of all
or a portion of an existing account from Seller to Purchaser or its Affiliates.
Notwithstanding the foregoing sentence, Purchaser and its Affiliates shall be
permitted to (i) engage in advertising, solicitations or marketing campaigns not
primarily directed to or targeted at such Branch customers, (ii) engage in
lending, deposit, safe deposit, trust or other financial services relationships
existing as of the date hereof with such Branch customers through other branch
offices of Purchaser, (iii) respond to unsolicited inquiries by such Branch
customers with respect to banking or other financial services, (iv) provide
notices or communications relating to the transactions contemplated hereby in
accordance with the provisions hereof and (v) within 30 days prior to the
37
Closing Date, work with the Commercial Banking Group customers as necessary to
effectively convert and transfer their accounts, services and products to those
of the Purchaser.
7.7 Insurance. Seller shall maintain in effect until the Closing Date all
casualty and public liability policies relating to the Branches and maintained
by Seller on the date hereof or to procure comparable replacement coverage and
maintain such policies or replacement coverage in effect until the Closing Date.
Purchaser shall provide all casualty and public liability insurance for the
Branches after the Closing Date. In the event of any material damage,
destruction or condemnation affecting Real Property between the date hereof and
the time of the Closing, Purchaser shall have the right to exclude any Real
Property so affected from the Assets to be acquired, require Seller to repair or
replace, and Seller agrees to repair or replace the damaged or destroyed
property, or require Seller to deliver, and Seller agrees to deliver, to
Purchaser any insurance proceeds and other payments, to the extent of the fair
market value or the replacement cost of the Real Property, received by Seller as
a result thereof unless, in the case of damage or destruction, Seller has
repaired or replaced the damaged or destroyed property.
7.8 Servicing Prior to Closing Date. With respect to the Loans, from the date
hereof until the Closing Date, Seller shall provide servicing of such Loans that
is in the aggregate generally consistent with customary prudent industry
servicing standards of service of such loans. Further, without the prior written
consent of Purchaser (which consent shall not be unreasonably withheld or
delayed), Seller shall not (a) except as required by law or the terms of the
Loan Documents, release any collateral or any party from any liability on or
with respect to any of the Loans; (b) compromise or settle any claims of any
kind or character with respect to the Loans; or (c) amend or waive any of the
material terms of any Loan as set forth in the Loan Documents.
7.9 Maintenance of Records. Through the Closing Date, Seller will maintain the
Records relating to the Assets and Liabilities in the same manner and with the
same care that the Records have been maintained prior to the execution of this
Agreement. Purchaser may, at its own expense, make such copies of and excerpts
from the Records as it may deem desirable. All Records, whether held by
Purchaser or Seller, shall be maintained for such periods as are required by
law, unless the parties shall agree in writing to a longer period. From and
after the Closing Date, each of the parties shall permit the other reasonable
access to any applicable Records in its possession relating to matters arising
on or before the Closing Date and reasonably necessary in connection with any
claim, action, litigation or other proceeding involving the party requesting
access to such Records or in connection with any legal obligation owed by such
party to any present or former depositor or other customer.
7.10 Furnitures, Fixtures and Equipment. As of February 28, 2001 and the Closing
Date, the Seller shall provide a true and accurate schedule of the Personal
Property for each of the Branches transferred hereunder. Such Schedule shall
specify the net book value of each item shown on the financial records of the
Seller as of the Closing Date.
7.11 Advice of Changes. Between the date hereof and the Closing Date Seller
shall promptly advise Purchaser in writing of any fact which, if existing or
known as of the date hereof, would have made any of the representations of
Seller contained herein untrue in any material respect.
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7.12 Deposit Listing. Subject to Section 7.3, an accurate list of the Deposits
as of the date or dates set forth on Schedule 1.1 (e) is set forth on Schedule
1.1 (e), and magnetic media or hard copy print outs have been delivered to
Purchaser on or before the date hereof reflecting such Deposits. Such magnetic
media will be updated to include an accurate list of the Deposits within
fourteen (14) days hereof. Such magnetic media will again be updated to include
an accurate list of the Deposits of the Closing Date and delivered to Purchaser
together with a hard copy printout thereof at Seller's data processing center
located in Milwaukee, Wisconsin as soon as is reasonably practicable after the
Closing Date.
ARTICLE 8
TAXES AND EMPLOYEE BENEFITS
8.1 Tax Representations. Seller represents and warrants to Purchaser as follows:
(a) Except as set forth in Schedule 8.1, all material Tax Returns with respect
to the Assets or income therefrom, the Liabilities or payments in respect
thereof or the operation of the Branches, that are required to be filed (taking
into account any extension of time within which to file) before the Closing
Date, have been or will be duly filed, said Tax Returns have been correctly and
accurately prepared, and all material Taxes shown to be due on such Tax Returns
have been or will be paid in full.
(b) With respect to the Deposits, Seller is in compliance in all material
respects with the Code and regulations thereunder relative to obtaining from
depositors of the Deposits executed IRS Forms W-8 and W-9.
8.2 Proration of Taxes. Except as otherwise agreed to by the parties, whenever
it is necessary to determine the liability for Taxes for a portion of a taxable
year or period that begins before and ends after the Closing Date, the
determination of the Taxes for the portion of the year or period ending on, and
the portion of the year or period beginning after the Closing Date shall be
determined by assuming that the taxable year or period ended at 11:59 p.m.
Central Standard Time on the Closing Date; provided, however, with respect to
real estate taxes, the tax to be pro rated shall be the real estate tax payable
in calendar year 2001 which shall be prorated based upon the number of days in
the calendar year 2001 Seller and Purchaser each will occupy the real property.
8.3 Sales and Transfer Taxes. All excise, sales, use and transfer taxes that are
payable or that arise as a result of the consummation of the P&A Transaction
shall be paid by Purchaser and Purchaser shall indemnify and hold Seller
harmless from and against any such taxes.
8.4 Information Returns. At the Closing or as soon thereafter as is practicable,
Seller shall provide Purchaser with a list of all Deposits for which Seller has
not received a properly completed Form W-8 or W-9 (or a substitute form meeting
applicable requirements) or on which Seller is back-up withholding as of the
Closing Date.
8.5 Like Kind Exchange. Purchaser acknowledges that the Seller may desire to
complete one or more like kind exchanges (including transactions which are
intended to qualify under Section
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1031 of the Code). If requested by Seller, Purchaser shall cooperate to the
extent reasonably necessary in order to accomplish such like kind exchanges and
shall execute all documents and provide all consents reasonably necessary to
complete such like kind exchanges including, without limitation, an amendment to
or an assignment of this Agreement; provided, however, that (a) Purchaser's
obligations under this Agreement shall not be increased, (b) Seller's
representations, warranties, covenants and obligations under this Agreement
shall continue in full force and effect and (c) the total Purchase Price will
not change as a result of this assignment.
8.6 Assistance and Cooperation. After the Closing Date, each of Seller and
Purchaser shall:
(a) Make available to the other and to any taxing authority as reasonably
requested all relevant information, records, and documents relating to taxes
with respect to the Assets or income therefrom, the Liabilities or payments in
respect thereof, or the operation of the Branches;
(b) Provide timely notice to the other in writing of any pending or proposed tax
audits (with copies of all relevant correspondence received from any taxing
authority in connection with any tax audit or information request) or tax
assessments with respect to the Assets or income therefrom, the Liabilities or
payments in respect thereof, or the operation of the Branches for taxable
periods for which the other may have a liability under this Article 8; and
(c) The party requesting assistance or cooperation shall bear the other party's
reasonable out-of-pocket expenses in complying with such request to the extent
that those expenses are attributable to fees and other costs of unaffiliated
third party service providers.
8.7 Transferred Employees. (a) No later than three days after the date hereof,
Seller will deliver to Purchaser a list of all Branch Employees by name, date of
hire and position, as of the most recent practicable date. Seller shall not
release any other personnel information without having first obtained the
written consent of the respective Branch Employee. Purchaser may, at its
discretion and subject to Section 8.7(b), interview any and all Branch Employees
provided that such interviews do not materially disrupt the business of the
Branches. Purchaser shall make employment available to all Branch Employees on
the Closing Date upon the terms and conditions described below. On and after the
Closing Date, Branch Employees employed by Purchaser shall be defined as
"Transferred Employees" for purposes of this Agreement. Subject to the
provisions of this Section 8.7, Transferred Employees shall be subject to the
employment terms, conditions and rules applicable to other similarly-situated
employees of Purchaser. Nothing contained in this Agreement shall be construed
as an employment contract between Purchaser and any Branch Employee or
Transferred Employee.
(a) Purchaser may interview Branch Employees during normal working hours.
Purchaser shall be solely responsible for any activity in connection with
interviewing Branch Employees. Purchaser shall indemnify and hold Seller
harmless from and against any claim, liability, loss, costs or expenses,
including reasonable attorneys' fees, resulting or arising from Purchaser's acts
or omissions in connection with such interviews.
(b) Each Transferred Employee shall be offered employment with Purchaser subject
to the following terms and conditions:
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(i) Base salary shall be at least equivalent to the rate of base
salary paid by Seller to such Transferred Employee as of the
close of business on the Business Day prior to the Closing
Date.
(ii) Except as otherwise specifically provided herein, Transferred
Employees shall be provided employee benefits that are no less
favorable than those provided to similarly situated employees
of Purchaser. Purchaser shall provide each Transferred
Employee with credit for such Transferred Employee's period of
service with Seller (including any service credited from
predecessors by merger or acquisition to Seller) towards the
calculation of eligibility and vesting for such purposes as
vacation, severance and other benefits and participation and
vesting in Purchaser's qualified profit sharing 401(k) plans,
as such plans may exist (but, except as set forth in
subparagraph (v) below and for vacation, not for purposes of
benefit accruals) provided, however, past service of
Transferred Employees with Seller will be used only for
eligibility and vesting purposes in connection with the
Purchasers defined benefit and defined contribution plans.
(iii) Each Transferred Employee shall be eligible to participate in
the medical, dental, or other welfare plans of Purchaser, as
such plans may exist, on and after the Closing Date, and any
pre-existing conditions provisions of such plans shall be
waived with respect to any such Transferred Employees;
PROVIDED, HOWEVER, that if Purchaser's relevant health or
disability insurance policy or plan has a pre-existing
condition limitation and a Transferred Employee's condition is
being excluded as a pre-existing condition under Seller's plan
as of the Closing Date, Purchaser may treat such condition as
a pre-existing condition for the period such condition would
have been treated as a pre-existing condition under Seller's
plan.
(iv) With respect to any Transferred Employee on short-term
disability or temporary leave of absence, upon conclusion of
his or her short-term disability or temporary leave of
absence, subject to the terms and conditions of the
Purchaser's plans and policies and applicable law, each
Transferred Employee on such leave shall receive the salary
and vacation benefits in effect when he or she went on leave,
shall otherwise be treated as a Transferred Employee, and, to
the extent practicable, shall be offered by the Purchaser the
same or a substantially equivalent position to his or her
position with Seller prior to having gone on leave.
(v) Purchaser shall be responsible for all severance obligations
arising out of the termination of any Transferred Employee's
employment after the Closing Date in accordance with
Purchaser's severance plan, policies and procedures with
credit for the period of years of credited service with Seller
towards the calculation of benefits; PROVIDED, HOWEVER, if,
before the one year anniversary of the Closing Date, any
Transferred Employee experiences a reduction in base salary, a
worksite relocation of more than 30 miles or a termination of
employment by Purchaser for any reason other than cause (as
defined generally by Purchaser's personnel policies and
procedures), such Transferred Employee shall be entitled to
severance pay in
41
an amount at least equivalent to the severance pay the Transferred Employee
would have received under Seller's severance plan had such employee been
eligible for payments under such plan.
(c) Except as provided herein, Seller shall pay, discharge, and be responsible
for (i) all salary and wages, all earned variable pay (including incentives,
bonuses and commissions) and all earned but unused vacation or paid-time-off,
arising out of employment of the Transferred Employees through the Closing Date,
and (ii) any employee benefits (including, but not limited to, accrued vacation)
arising under Seller's employee benefit plans and employee programs on or prior
to the Closing Date (but not including medical benefits, if any, to Transferred
Employees who retire after the Closing Date), including benefits with respect to
claims incurred on or prior to the Closing Date but reported after the Closing
Date. After the Closing Date, Purchaser shall pay, discharge, and be responsible
for all salary, wages, and benefits arising out of or relating to the employment
of the Transferred Employees by Purchaser after the Closing Date, including,
without limitation, all claims for welfare benefits plans incurred after the
Closing Date. Claims are incurred as of the date services are provided or
disability payments are accrued, notwithstanding when the injury or illness may
have occurred.
(d) To the extent permitted under Purchaser's 401(k) plan, Seller and Purchaser
shall cooperate in arranging for the transfer to Purchaser's 401(k) plan, as
soon as practicable after the Closing Date and in a manner that satisfies
sections 414(1) and 411(d)(6) of the Code, of those accounts held under Seller's
401(k) plan on behalf of Transferred Employees, subject to receipt of any
necessary consents and approvals of the Transferred Employees. At or prior to
the Closing, Seller shall make all necessary matching contributions to Seller's
401(k) Plan on behalf of the Transferred Employees for the calendar year 2000.
Seller will be required to accrue a liability for the 2001 401(k) matching
contribution on behalf of the Transferred Employees for that portion of 2001
preceding the Closing Date.
(e) For a period of twenty-four (24) months following the Closing Date, Seller
and its Affiliates will not directly solicit (other than general solicitation
through newspapers or other media of general circulation) any Transferred
Employee to again become an employee of Seller or hire any such Transferred
Employee for a position at any office of Seller or such Affiliate located in the
State of Minnesota; PROVIDED, HOWEVER, that Seller shall not be prohibited from
hiring a Transferred Employee or who initially approaches Seller without
encouragement or solicitation by Seller.
8.8 Branch Employee Representations. (a) Seller represents and warrants to
Purchaser as follows:
(i) None of the Branch Employees are represented by any labor
union;
(ii) Seller is not a party to any individual contract, written or
oral, express or implied, for the employment of any Branch
Employee, and Seller is not subject to any collective
bargaining arrangement with respect to any Branch Employee;
42
(iii) Except for stay bonuses, if any, as disclosed to Purchaser by
Seller in writing no later than fourteen (14) days from the
date hereof, Seller has not entered into any individual
agreement or otherwise made any individual commitment to any
Branch Employee with respect to continued employment with
Purchaser; and
(iv) There are no pending or to Seller's knowledge threatened
litigation by any Branch Employee against the Seller.
ARTICLE 9
CONDITIONS TO CLOSING
9.1 Conditions to Obligations of Purchaser. Unless waived in writing by
Purchaser, the obligation of Purchaser to consummate the P&A Transaction is
conditioned upon satisfaction of each of the following conditions:
(a) Regulatory Approvals. All consents, approvals and authorizations required to
be obtained prior to the Closing from governmental and regulatory authorities in
connection with the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby to be consummated at the
Closing, including the Regulatory Approvals, shall have been made or obtained,
and shall remain in full force and effect, and all waiting periods applicable to
the consummation of the P&A Transaction shall have expired or been terminated;
provided, however, that no Regulatory Approval shall have imposed any condition
or requirement (a "Burdensome Condition") that would result in any Material
Adverse Effect>.
(b) Orders. No court or governmental authority of competent jurisdiction shall
have enacted, issued, promulgated, enforced or entered any statute, rule,
regulation, judgment, decree, injunction or other order (whether temporary,
preliminary or permanent) (any of the foregoing, an "Order") which is in effect
and which prohibits or makes illegal the consummation of the P&A Transaction.
(c) Representations and Warranties; Covenants. The representations and
warranties of Seller contained in this Agreement shall be true in all material
respects as of the Closing Date (except that representations and warranties as
of a specified date need be true and correct only as of such date); PROVIDED,
HOWEVER, that for purposes of determining the satisfaction of the condition set
forth in this Section 9.1(c), such representations and warranties shall be
deemed to be true and correct if the failure or failures of such representations
and warranties to be true and correct (such representations and warranties to be
read for this purpose without reference to any qualification set forth therein
relating to "materiality" or "Material Adverse Effect") do not constitute,
individually or in the aggregate, a Material Adverse Effect with respect to
Seller. Purchaser shall have received at Closing a certificate to that effect
dated as of such Closing Date and executed by the President or any Executive
Vice President of Seller. Each of the covenants and agreements of Seller to be
performed on or prior to the Closing Date shall have been duly performed in all
material respects. Purchaser shall have received at Closing a certificate to
that effect dated as of such Closing Date and executed by the President or any
Executive Vice President of Seller.
43
(d) Material Adverse Effect. Since the date of this Agreement, there has been no
Material Adverse Effect on Seller.
9.2 Conditions to Obligations of Seller. Unless waived in writing by Seller, the
obligation of Seller to consummate the P&A Transaction is conditioned upon
satisfaction of each of the following conditions:
(a) Regulatory Approvals. All consents, approvals and authorizations required to
be obtained prior to the Closing from governmental and regulatory authorities in
connection with the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby to be consummated at the
Closing, including the Regulatory Approvals, shall have been made or obtained,
and shall remain in full force and effect, and all waiting periods applicable to
the consummation of the P&A Transaction shall have expired or been terminated.
(b) Orders. No Order shall be in effect that prohibits or makes illegal the
consummation of the P&A Transaction.
(c) Representations and Warranties; Covenants. The representations and
warranties of Purchaser contained in this Agreement shall be true in all
material respects as of the Closing Date (except that representations and
warranties as of a specific date need be true in all material respects only as
of such date); provided, however, that for purposes of determining the
satisfaction of the condition set forth in this Section 9.2(c), such
representations and warranties (except for Sections 6.7 and 6.8, which shall be
true and correct as of the Closing as written) shall be deemed to be true and
correct if the failure or failures of such representations and warranties to be
true and correct (such representations and warranties to be read for this
purpose without reference to any qualification set forth therein relating to
"materiality" or "Material Adverse Effect") do not constitute, individually or
in the aggregate, a Material Adverse Effect with respect to Purchaser. Seller
shall have received at Closing a certificate to that effect dated as of such
Closing Date and executed by the Chairman, Chief Executive Officer, Chief
Financial Officer, President or any Executive Vice President of Purchaser. Each
of the covenants and agreements of Purchaser to be performed on or prior to the
Closing Date shall have been duly performed in all material respects. Seller
shall have received at Closing a certificate to that effect dated as of such
Closing Date and executed by the Chairman, Chief Executive Officer, Chief
Financial Officer, President or any Executive Vice President of Purchaser.
(d) Consummation of the Merger. The Merger shall have been consummated in
accordance with the terms of the Merger Agreement.
ARTICLE 10
TERMINATION
10.1 Termination. This Agreement may be terminated at any time prior to the
Closing Date:
(a) By the mutual written agreement of Purchaser and Seller;
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(b) By Seller or Purchaser, in the event of a material breach by the other of
any representation, warranty or agreement contained herein which is not cured or
cannot be cured within thirty (30) calendar days after written notice of such
termination has been delivered to the breaching party and which, in the case of
a breach of a representation or warranty, would if occurring or continuing on
the Closing Date permit the terminating party not to consummate the P&A
Transaction under the standard set forth in Section 9.1(c) or 9.2(c), as
applicable; provided, however, that termination pursuant to this Section 10.1(b)
shall not relieve the breaching party of liability arising out of or related to
such breach;
(c) By Seller or Purchaser, in the event the Closing has not occurred within 180
calendar days following the consummation of Merger, unless the failure to so
consummate is due to a breach of this Agreement by the party seeking to
terminate;
(d) By Seller or Purchaser if the Merger Agreement shall have been terminated
pursuant thereto and the Merger abandoned;
(e) By Seller or Purchaser at any time after the denial or revocation of any
Regulatory Approval; or
(f) By Seller if, at any time prior to the Closing Date, an appropriate official
of any governmental agency or authority whose consent, approval or authorization
is required in order for Purchaser to consummate the transactions contemplated
hereby shall have advised in writing that such authority will not grant such
consent, approval or authorization, or where there shall be in effect any Order,
or if there shall exist any proceeding which, in Seller's reasonable judgment,
would result in an Order, in each case having the effect set forth in Section
9.1(b); provided, however, that Purchaser shall have fifteen (15) calendar days
following receipt of notice from Seller to remedy any such situation or to
provide assurances reasonably acceptable to Seller that such situation will be
remedied by the Closing Date.
10.2 Effect of Termination. In the event of termination of this Agreement and
abandonment of the transactions contemplated hereby pursuant to Section 10.1, no
party hereto (or any of its directors, officers, employees, agents or
Affiliates) shall have any liability or further obligation to any other party,
except as provided in Section 7.2(b) and except that nothing herein will relieve
any party from liability for any breach of this Agreement.
ARTICLE 11
INDEMNIFICATION
11.1 Indemnification. (a) Subject to Sections 11.4 and 12.1, Seller shall
indemnify and hold harmless Purchaser and any person directly or indirectly
controlling Purchaser from and against any and all Losses which Purchaser may
suffer, incur or sustain arising out of or attributable to the following (or any
allegation by a third party of the following):
45
(i) any breach of any representation or warranty (excluding the
representations and warranties contained in Section 5.9, the
sole and exclusive remedy for breach of which is set forth in
Section 11.4) made by Seller in this Agreement;
(ii) any material breach of any covenant or agreement to be
performed by Seller pursuant to this Agreement;
(iii) any claim, penalty asserted, liability, legal action or
administrative proceeding based upon any action taken or
omitted to be taken by Seller or, except as otherwise
expressly set forth herein, occurrences on or prior to the
Closing Date, relating in any such case to the operation of
the Branches, the Commercial Banking Group, the Real Property,
the Assets or the Liabilities; or
(iv) any liability, obligation or duty of Seller that is not a
Liability.
(b) Subject to Section 12.1, Purchaser shall indemnify and hold harmless Seller
and any person directly or indirectly controlling Seller from and against any
and all Losses which Seller may suffer, incur or sustain arising out of the
following (or any allegation by a third party of the following):
(i) any breach of any representation or warranty made by Purchaser
in this Agreement;
(ii) any material breach of any covenant or agreement to be
performed by Purchaser pursuant to this Agreement;
(iii) any claim, penalty asserted, legal action or administrative
proceeding based upon any action taken or omitted to be taken
by Purchaser after the Closing Date, relating in any such case
to the operation of the Branches, the Real Property or the
Assets;
(iv) effective after the Closing Date, the Liabilities.
(c) To exercise its indemnification rights under this Section 11.1 as a result
of the assertion against it of any claim or potential liability for which
indemnification is provided, the indemnified party shall promptly notify the
indemnifying party of the assertion of such claim, discovery of any such
potential liability or the commencement of any action or proceeding in respect
of which indemnity may be sought hereunder (including, with respect to claims
arising from a breach of representation or warranty made in Article 8, the
commencement of an audit, administrative investigation or judicial proceeding by
any governmental authority); provided, however, that in no event shall notice of
original claim for indemnification under this Agreement be given later than the
expiration of one (1) year from the Closing Date (excluding only claims for
indemnification under Sections 11.1(a)(iii) (which notice shall be given no
later than the expiration of two (2) years from the Closing Date), and Sections
11.1(a)(iv), 11.1(b)(iii) and 11.1(b)(iv), or a claim for indemnification under
11.1(a)(i) resulting from a breach of the representations set forth in Sections
5.11 and 5.14, which may be given at any time. The indemnified party shall
advise the indemnifying party of all facts relating to such assertion within the
knowledge of the indemnified party, and shall afford the indemnifying party the
opportunity, at the indemnifying party's sole cost
46
and expense, to defend against such claims for liability. In any such action or
proceeding, the indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at its own expense
unless (i) the indemnifying party and the indemnified party mutually agree to
the retention of such counsel or (ii) the named parties to any such suit,
action, or proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party, and in the reasonable judgment of
the indemnified party, representation of the indemnifying party and the
indemnified party by the same counsel would be inadvisable due to actual or
potential differing defenses or conflicts of interests between them.
(d) The indemnified party shall have the right to settle or compromise any claim
or liability subject to indemnification under this Section, and to be
indemnified from and against all Losses resulting therefrom, unless the
indemnifying party, within sixty (60) calendar days after receiving written
notice of the claim or liability in accordance with Section 11.1(c) above,
notifies the indemnified party that it intends to defend against such claim or
liability and undertakes such defense, or, if required in a shorter time than
sixty (60) calendar days, the indemnifying party makes the requisite response to
such claim or liability asserted.
(e) Notwithstanding anything to the contrary contained in this Agreement, an
indemnifying party shall not be liable under this Section 11.1 for any Losses
sustained by the indemnified party unless and until the aggregate amount of all
indemnifiable Losses sustained by the indemnified party shall exceed $250,000,
in which event the indemnifying party shall provide indemnification hereunder in
respect of all such indemnifiable Losses in excess of $250,000; provided,
however, that the aggregate amount of indemnification payments payable pursuant
to this Section 11.1, other than in respect of Sections 11.1(a)(iv),
11.1(b)(iii) and 11.1(b)(iv), shall not exceed $3,000,000. An indemnifying party
shall not be liable under this Section 11.1 for any settlement effected, without
its consent, of any claim or liability or proceeding for which indemnity may be
sought hereunder. In no event shall either party hereto be entitled to
consequential or punitive damages or damages for lost profits in any action
relating to the subject matter of this Agreement.
11.2 Exclusivity. After the Closing, Article 11 will provide the exclusive
remedy for any misrepresentation, breach of warranty, covenant or other
agreement or other claim arising out of this Agreement or the transactions
contemplated hereby; provided, however, that Section 11.4 shall be Purchaser's
sole and exclusive remedy for any breach of Seller's representations or
warranties under Section 5.9.
11.3 AS-IS Sale; Waiver of Warranties. Except as set forth in this Agreement,
including, without limitation, Article 5 and Sections 8.1 and 8.8, Purchaser
acknowledges that the Assets and Liabilities are being sold and accepted on an
"AS-IS-WHERE-IS" basis, and are being accepted without any representation or
warranty. As part of Purchaser's agreement to purchase and accept the Assets and
Liabilities AS-IS-WHERE-IS, and not as a limitation on such agreement, TO THE
FULLEST EXTENT PERMITTED BY LAW, SELLER HEREBY DISCLAIMS AND PURCHASER HEREBY
UNCONDITIONALLY AND IRREVOCABLY WAIVES AND RELEASES ANY AND ALL ACTUAL OR
POTENTIAL RIGHTS PURCHASER MIGHT HAVE AGAINST SELLER OR ANY PERSON DIRECTLY OR
INDIRECTLY CONTROLLING SELLER REGARDING ANY FORM OF WARRANTY, EXPRESS OR
IMPLIED, OF ANY KIND OR TYPE, RELATING TO THE ASSETS AND LIABILITIES
47
INCLUDING, BUT NOT LIMITED TO, THE LOANS AND/OR THE COLLATERAL THEREFOR EXCEPT
THOSE SET FORTH IN THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, ARTICLE 5 AND
SECTIONS 8.1 AND 8.8. SUCH WAIVER AND RELEASE IS, TO THE FULLEST EXTENT
PERMITTED BY LAW, ABSOLUTE, COMPLETE, TOTAL AND UNLIMITED IN EVERY WAY. SUCH
WAIVER AND RELEASE INCLUDES TO THE FULLEST EXTENT PERMITTED BY LAW, BUT IS NOT
LIMITED TO, A WAIVER AND RELEASE OF EXPRESS WARRANTIES (EXCEPT THOSE SET FORTH
IN THIS AGREEMENT INCLUDING, WITHOUT LIMITATION ARTICLE 5 AND SECTIONS 8.1 AND
8.8), IMPLIED WARRANTIES, WARRANTIES OF FITNESS FOR A PARTICULAR USE, WARRANTIES
OF MERCHANTABILITY, WARRANTIES OF HABITABILITY, STRICT LIABILITY RIGHTS AND
CLAIMS OF EVERY KIND AND TYPE, INCLUDING BUT NOT LIMITED TO CLAIMS REGARDING
DEFECTS WHICH WERE NOT OR ARE NOT DISCOVERABLE, ALL OTHER EXTANT OR LATER
CREATED OR CONCEIVED OF STRICT LIABILITY OR STRICT LIABILITY TYPE CLAIMS AND
RIGHTS.
11.4 Loans. (a) Notwithstanding anything to the contrary contained in this
Agreement, subject to Section 11.2, in order for Purchaser to claim a breach of
a representation or warranty of Seller under Section 5.9, Purchaser shall
deliver to Seller, within sixty (60) calendar days following Purchaser's
discovery of such breach but in no event later than three hundred sixty five
(365) days following the later of (i) the delivery to Purchaser of the Loan
Documents, or (ii) the Closing Date, a certificate (a "Certificate of Defective
Loan"), setting forth the identity of the affected Loan, the exact nature of
such claimed breach, the subsection or subsections of Section 5.9, under which
such breach is claimed and reasonable evidence of the existence of such breach.
(b) If Purchaser delivers a Certificate of Defective Loan to Seller, Seller
shall have the option, in its sole and absolute discretion, to correct or cure
such breach with respect to such affected Loan within ninety (90) calendar days
following receipt of the Notice (the "Cure Period") or to repurchase any such
affected Loan on a whole loan servicing-released basis within sixty (60)
calendar days following the receipt of the Notice for an amount equal to the
Loan Value thereof as of the date of repurchase (the "Repurchase Price"). If
Seller elects to attempt to cure or correct any material breach with respect to
any Loan but fails to cure or correct such material breach on or before the
expiration of the Cure Period, then Seller shall repurchase such Loan on a whole
loan servicing-released basis within thirty (30) calendar days following the
expiration of the Cure Period for the Repurchase Price, subject to Section
11.4(d)).
(c) In connection with any repurchase of a Loan by Seller pursuant to this
Section 11.4, and as a condition to the payment by Seller to Purchaser of the
Repurchase Price thereof, Purchaser shall deliver to Seller all Loan Documents
with respect to such Loan previously delivered to Purchaser pursuant to this
Agreement, and each document that constitutes a part of the Loan Documents which
was endorsed or assigned to Purchaser shall be endorsed or assigned to Seller in
the same manner as the Loans were originally endorsed or assigned by Seller
under this Agreement.
(d) Notwithstanding anything to the contrary contained herein, Seller shall have
no obligation hereunder to correct or cure any material breach or to repurchase
any Loan pursuant to this Section 11.4, if after the Closing Date, (i) Purchaser
or its permitted assignee is not the owner of such Loan or does not have the
full right to sell and assign such Loan hereunder (it being understood
48
that the rights under this Section 11.4 shall not survive any sale, conveyance,
assignment or transfer of the subject Loan by Purchaser to an unaffiliated third
party), unless such lack of ownership or right to sell and assign is
attributable to Seller's breach hereof; (ii) any lien, pledge, charge or
security interest of any nature exists with respect to such Loan as of the time
of repurchase; (iii) the related security interests or mortgages, if any, have
been waived, modified, altered, satisfied, canceled, rescinded or subordinated
in any respect, or the related collateral has been released from its obligations
under such security interests or mortgages, in whole or in part, in a manner
which materially interferes with the benefits of the security intended to be
provided by such mortgages or the use, enjoyment, value or marketability of such
collateral for the purposes specified in such mortgages; or (iv) Purchaser has
otherwise materially altered, amended or modified the terms of such Loan (other
than a renewal in the ordinary course of business). Further, Purchaser shall be
responsible for any losses or liabilities to the extent caused by its own errors
or omissions in the administration of any such Loan from the date of Closing
until the date it is repurchased.
ARTICLE 12
ENVIRONMENTAL MATTERS
12.1 Environmental Matters. (a) Purchaser shall purchase at its expense Phase I
environmental site assessments for all Owned Real Property and asbestos surveys
for all Real Property except for Real Property where the improvements have been
completed after December 31, 1978 to Purchaser within twenty (20) calendar days
of the date of this Agreement by consultant acceptable to Purchaser using ASTM
Standard 1527-00. Seller shall cause the consultants who prepared the Phase I
environmental site assessments and/or the asbestos reports to certify that
Purchaser may rely upon such reports, and the information, conclusions and
recommendations contained in them, to the same extent as Seller. Such Phase I
environmental site assessments for all Owned Real Property have been dated (or
supplemented) on or after no earlier than 180 days prior to closing. Purchaser
shall have the right but not the obligation, to the same extent that Seller has
the right, to conduct at Purchaser's expense such environmental inspections and
assessments of real property securing Loans, or additional environmental
investigations and assessments of Real Property as Purchaser deems appropriate
("Purchaser's Environmental Investigations"). Seller will pay to Purchaser, at
Closing, up to $1500.00 for each such Phase I environmental site assessments and
asbestos survey.
(b) If such Phase I site assessments and asbestos surveys and Purchaser's
Environmental Investigations reasonably indicate the necessity or desirability
of further investigation in Purchaser's sole opinion to determine whether or not
an Environmental Hazard or an Asbestos Hazard exists at such Real Property,
Purchaser may elect, not later than thirty (30) calendar days after receipt by
Purchaser of the Phase I site assessment and asbestos surveys, to have an
environmental consultant reasonably acceptable to Seller (the "Environmental
Consultant"), to the extent reasonable and appropriate, conduct Phase II
environmental site assessments and additional asbestos surveys, the cost of
which shall be paid by Purchaser. Any such further investigation or testing
shall be conducted in such a manner so as not to unreasonably interfere with the
normal operation of the Branch(es) involved. All such Phase II environmental
site assessments and additional asbestos surveys shall be treated as information
subject to Section 7.2(b) and shall be completed not more than sixty (60)
calendar days after the signing of this Agreement.
49
(c) In the event that the Environmental Consultant has discovered, or the Phase
I site assessments or asbestos reports provided by Seller or Purchaser's
Environmental Investigations indicate, an Environmental Hazard, and/or Asbestos
Hazard, or any actual or potential violation of Environmental Laws at any single
parcel of Real Property, the remediation of or response to which, in the
reasonable judgment of the Environmental Consultant, is or would be the
responsibility of Seller, or Purchaser should it acquire such Real Property, and
will reasonably be expected to cost $100,000 or more in the aggregate for such
single parcel of Real Property, Purchaser shall lease (or sublease, as
appropriate) from Seller such single parcel of Real Property pursuant to a Lease
Agreement that shall provide as follows:
(i) Such Lease Agreement shall be for a term of two (2) years,
with no obligation or right to renew (it being the intention
of Seller that Purchaser locate an alternative branch site
during such two years), at a rental equal to a fair market
rental value;
(ii) Seller may sell such Owned Real Property to any person,
subject to such Lease Agreement, for any price;
(iii) During the term of such Lease Agreement, in the event Seller
shall deliver to Purchaser a report of qualified environmental
engineer or consultant acceptable to Purchaser stating that in
the opinion of the Environmental Engineer the Environmental
Hazard, and/or Asbestos Hazard or the violation of
Environmental Law, at or on any such leased or subleased
parcel of Real Property has been remediated or corrected to
the extent required under applicable Environmental Laws, with
no residual liabilities or obligations or restrictions on
development of the Real Property or the Purchaser, Purchaser
shall have an option to, as appropriate, (1) purchase such
parcel of Real Property at the net book value as of the close
of business of the month-end Business Day most recently
preceding the Closing Date or (2) assume the primary lease of
such Real Property; and
(iv) Other terms and conditions of the Lease Agreement shall be
typical of such branch leases in the market as negotiated
between Seller and Purchaser, including indemnification by
Seller for any such violation, Environmental Hazard and/or
Asbestos Hazard.
If the correction and/or remediation cost is less than $100,000 in the aggregate
for any single parcel of Owned Real Property, Purchaser shall acquire such
parcel and such cost shall be borne by Purchaser without indemnity or price
adjustment under this Agreement.
(d) Purchaser agrees that it and its Environmental Consultant shall conduct any
Phase II environmental site assessments or other investigations pursuant to this
Section with reasonable care and subject to customary practices among
environmental consultants and engineers, including, without limitation,
following completion thereof, the restoration of any site to the extent
practicable to its condition prior to such site assessment or investigation and
the removal of all monitoring ▇▇▇▇▇.
50
(e) Any lease of a parcel of Owned Real Property under Section 12.1(c) shall in
no way affect the transfer of any Assets or Liabilities, other than such parcel
of Owned Real Property, to the Purchaser at the Closing.
(f) In the event that the Environmental Consultant has discovered, or
Purchaser's Environmental Investigations indicate Environmental Hazards or
actual or potential violations of applicable Environmental Laws in connection
with real property securing Loans, Seller agrees that the Loan Value of any such
Loan shall be reduced by the lessor of (1) the estimated costs associated with
investigation, remediating, monitoring, or correcting such matters, or (2) the
outstanding balance of the Loan or indebtedness secured by such property.
ARTICLE 13
MISCELLANEOUS
13.1 Survival. (a) The parties' respective representations and warranties
contained in this Agreement shall survive until the first anniversary of the
Closing Date except for the representations set forth in Sections 5.11 and 5.14
hereof which shall survive the Closing Date and not terminate, and thereafter
neither party may claim any Loss in relation to a breach thereof; provided,
however, that each of the representations and warranties of Seller set forth in
Section 5.9 insofar as such Section may relate to one or more Loans, shall
survive the Closing Date for a period of one (1) year from the date of delivery
of the Loan Documents to Purchaser, and thereafter neither party may claim any
damage for breach thereof. The agreements and covenants contained in this
Agreement shall not survive the Closing except to the extent expressly set forth
herein.
(b) No claim based on any breach of any representation or warranty (other than a
claim based upon a breach of Sections 5.9, 5.11 or 5.14) shall be valid or made
unless notice with respect thereto is given to the indemnifying party in
accordance with this Agreement on or before the date specified in Section
11.1(c).
13.2 Assignment. Neither this Agreement nor any of the rights, interests or
obligations of either party may be assigned by either party hereto without the
prior written consent of the other party, and any purported assignment in
contravention of this Section 13.2 shall be void. Purchaser further agrees not
to sell, transfer or assign any of the Loans prior to the Closing Date.
13.3 Binding Effect. This Agreement and all of the provisions hereof shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
13.4 Public Notice. Prior to the Closing Date, neither Purchaser nor Seller
shall directly or indirectly make or cause to be made any press release for
general circulation, public announcement or disclosure or issue any notice or
general communication to employees with respect to any of the transactions
contemplated hereby without the prior written consent of the other party (which
consent shall not be unreasonably withheld or delayed). Purchaser and Seller
each agree that, without the other party's prior written consent, it shall not
release or disclose any
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of the terms or conditions of the transactions contemplated herein to any other
person. Notwithstanding the foregoing, each party may make such public
disclosure as, in the opinion of its counsel, may be required by law or as
necessary to obtain the Regulatory Approvals.
13.5 Notices. All notices, requests, demands, consents and other communications
given or required to be given under this Agreement and under the related
documents shall be in writing and delivered to the applicable party at the
address indicated below:
If to Seller: Firstar Bank, National Association
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to: Firstar Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Fax: ▇▇▇-▇▇▇-▇▇▇▇
If to Purchaser: ▇▇▇▇▇▇ Bank, National Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
With copies to: ▇▇▇▇▇▇ Financial Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Winthrop & Weinstine, P.A.
3000 ▇▇▇▇ ▇▇▇▇▇▇▇▇ Plaza
▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
or, as to each party at such other address as shall be designated by such party
in a written notice to the other party complying as to delivery with the terms
of this Section. Any notices shall be in writing, including telegraphic or
facsimile communication, and may be sent by registered or certified mail, return
receipt requested, postage prepaid, or by fax, or by overnight delivery service.
Notice shall be effective upon actual receipt thereof.
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13.6 Expenses. Except as expressly provided otherwise in this Agreement, each
party shall bear any and all costs and expenses which it incurs, or which may be
incurred on its behalf, in connection with the preparation of this Agreement and
consummation of the transactions described herein, and the expenses, fees, and
costs necessary for any approvals of the appropriate regulatory authorities.
13.7 Governing Law. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of Minnesota.
13.8 Entire Agreement; Amendment. (a) This Agreement contains the entire
understanding of and all agreements between the parties hereto with respect to
the subject matter hereof and supersedes any prior or contemporaneous agreement
or understanding, oral or written, pertaining to any such matters which
agreements or understandings shall be of no force or effect for any purpose;
provided, however, that the terms of any confidentiality agreement between the
parties hereto previously entered into, to the extent not inconsistent with any
provisions of this Agreement, shall continue to apply.
(b) This Agreement may not be amended or supplemented in any manner except by
mutual agreement of the parties and as set forth in a writing signed by the
patties hereto or their respective successors in interest. The waiver of any
beach of any provision under this Agreement by any party shall not be deemed to
be waiver of any preceding or subsequent breach under this Agreement. No such
waiver shall be effective unless in writing.
13.9 Third Party Beneficiaries. Except as expressly provided in Section 11.1,
this Agreement shall not benefit or create any right or cause of action in or on
behalf of any person other than Seller and Purchaser.
13.10 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
13.11 Headings. The headings used in this Agreement are inserted for purposes of
convenience of reference only and shall not limit or define the meaning of any
provisions of this Agreement.
13.12 Severability. If any provision of this Agreement, as applied to any party
or circumstance, shall be judged by a court of competent jurisdiction to be
void, invalid or unenforceable, the same shall in no way effect any other
provision of this Agreement, the application of any such provision and any other
circumstances or the validity or enforceability of the other provisions of this
Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their duly authorized officers as of the date and year first above written.
Firstar Bank, National Association
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice Chairman
▇▇▇▇▇▇ Bank, National Association
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
The ▇▇▇▇ ▇▇▇▇▇▇ Foundation executes this Agreeement solely for the purpose of
making the representations set forth in Sections 6.4(d) and 6.7, and shall have
no liability or obligation in connection with any of the other terms and
conditions of this Agreement.
The ▇▇▇▇ ▇▇▇▇▇▇ Foundation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Trustee
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LIST OF SCHEDULES
Schedule 1.1(b) Branches/Real Properties
Schedule 1.1(d) Excluded Deposits
Schedule 1.1(e) Other Loans
Schedule 2.1(a)(vii) Other Assets
Schedule 2.2(a)(v) Accrued Liabilities
Schedule 2.4(c) Excluded ▇▇▇/▇▇▇▇▇ Account Deposits
Schedule 3.5(a) Form of Deed
Schedule 3.5(b) Form of ▇▇▇▇ of Sale
Schedule 3.5(c) Form of Assignment and Assumption Agreement
Schedule 3.5(d) Form of Assignment of Lease and Assumption
Schedule 3.5(e) Form of Landlord Consent and Estoppel Letter>
Schedule 3.5(g) Form of Certificate of Officer
Schedule 3.6(d) Form of Certificate of Officer
Schedule 4.11 Schedule of Processing Fees
Schedule 5.5 Tenant Leases
Schedule 5.6 Litigation/Undisclosed Liabilities
Schedule 5.13 Environmental Matters
Schedule 5.14 Title to the Owned Real Property; Liens and Encumbrances
Schedule 5.16 Deposits - Compliance with Laws and Contracts
Schedule 8.1 Outstanding Tax Liabilities
55