Exhibit 10.4
PURCHASE AND ASSUMPTION AGREEMENT
BY AND BETWEEN
LOS PADRES BANK, FSB
AND
▇▇▇▇▇▇▇▇▇▇ BANK, FSB
MAY 30, 2001
TABLE OF CONTENTS
PAGE
ARTICLE 1 - DEFINITIONS 1
1.1 Definitions 1
ARTICLE 2 - TERMS OF PURCHASE 4
2.1 Assets. 4
2.2 Liabilities and Premium. 5
2.3 Names and Marks 5
2.4 Prorations 6
ARTICLE 3 - TRANSFER OF ASSETS 6
3.1 Personal Property. 6
3.2 Condition and Destruction of Property 6
3.3 Cash on Hand 7
3.4 Allocation 7
ARTICLE 4 - CLOSING 7
4.1 Closing Date 7
4.2 Closing Payment 7
4.3 Deliveries by Seller 8
4.4 Deliveries by Buyer 8
4.5 Post-Closing Adjustments 8
ARTICLE 5 - REPRESENTATIONS AND WARRANTIES OF BUYER 8
5.1 Organization and Authority 8
5.2 Litigation 8
5.3 Governmental Notices 9
5.4 Regulatory Approvals 9
5.5 Regulatory Approvals; Performance of Agreement 9
5.6 Community Reinvestment Act 9
ARTICLE 6 - REPRESENTATIONS AND WARRANTIES OF SELLER 9
6.1 Organization and Authority 9
6.2 Litigation 9
6.3 Title to Assets Other Than Realty 10
6.4 Ownership. 10
i
TABLE OF CONTENTS
(CONTINUED)
PAGE
6.5 Deposits and Retail Repos. 10
6.6 Governmental Notices 11
6.7 Taxes 11
6.8 Records and Documents 11
6.9 Community Reinvestment Act 11
6.10 Regulatory Approvals 11
6.11 Employees 11
6.12 Account Loans. 12
6.13 Insurance 12
6.14 Operation; Compliance with Law 12
6.15 Environmental 13
6.16 Schedules 13
6.17 No Defaults 13
6.18 Related Party Transactions 13
6.19 Disclosure 13
6.20 Service Contracts 13
6.21 Documents 13
ARTICLE 7 - COVENANTS OF BUYER 14
7.1 Fiduciary Relationship. 14
7.2 Payment of Checks 14
7.3 Account Loans 14
7.4 Confidentiality of Records 14
7.5 Assistance in Obtaining Regulatory Approval 15
7.6 Further Assurances 15
7.7 Consents 15
7.8 Interference 15
7.9 Conduct of Business 15
7.10 Regulatory Matters 15
7.11 Intention of the Parties 15
ARTICLE 8 - COVENANTS OF SELLER 15
ii
TABLE OF CONTENTS
(CONTINUED)
PAGE
8.1 Access to Records and Information; Personnel: Customers. 15
8.2 Operation in Ordinary Course 15
8.3 Assistance in Obtaining Regulatory Approvals 17
8.4 No Encumbrances 17
8.5 Consents 18
8.6 Solicitation of Accounts 18
8.7 Maintenance of Accounts 18
8.8 Books and Records 18
8.9 Insurance Policies 18
8.10 Further Assurances 18
8.11 Close of Business on Closing Date 19
8.12 Supplemental Information; Disclosure Supplements 20
8.13 Regulatory Matters 20
ARTICLE 9- CONDITIONS TO CLOSING 20
9.1 Conditions to the Obligations of Seller 20
9.2 Conditions to the Obligations of Buyer 21
9.3 Condition to the Obligations of Seller and Buyer 23
ARTICLE 10- TERMINATION 23
10.1 Termination 23
ARTICLE 11- EMPLOYEES 24
11.1 Employees 24
11.2 Employee Matters 24
11.3 Employee Benefits 25
11.4 Employee Documents 25
11.5 Compliance with COBRA 25
ARTICLE 12- OTHER AGREEMENTS 25
12.1 Returned Items 25
12.2 Holds and Stop Payment Orders 26
12.3 ACH Items 26
12.4 Checking Accounts 27
iii
TABLE OF CONTENTS
(CONTINUED)
PAGE
12.5 Withholding 27
12.6 Retirement Accounts 28
12.7 Interest Reporting 28
12.8 Notices to Depositors. 28
12.9 Card Processing and Overdraft Coverage. 29
12.10 Reimbursements. 29
12.11 Taxpayer Information 29
ARTICLE 13- GENERAL PROVISIONS 29
13.1 Survival 30
13.2 Broker's Fees 30
13.3 Publicity and Notices 30
13.4 Attorneys' Fees 30
13.5 Regulatory Fees 30
13.6 No Third Party Beneficiaries 30
13.7 Notices 30
13.8 Assignment 31
13.9 Successors and Assigns 31
13.10 Governing Law 31
13.11 Entire Agreement 31
13.12 Headings 31
13.13 Severability 31
13.14 Waiver 31
13.15 Counterparts 31
13.16 Force Majeure 32
13.17 Schedules 32
13.18 Knowledge 32
EXHIBIT A ASSIGNMENT AND ASSUMPTION AGREEMENT 1
EXHIBIT B ▇▇▇▇ OF SALE AND ASSIGNMENT 1
EXHIBIT C RETIREMENT ACCOUNT TRANSFER AGREEMENT 1
EXHIBIT D ASSIGNMENT AND ASSUMPTION OF LEASE 1
iv
TABLE OF CONTENTS
(CONTINUED)
PAGE
EXHIBIT E LANDLORD ESTOPPEL CERTIFICATE 1
v
PURCHASE AND ASSUMPTION AGREEMENT
This
Purchase and Assumption Agreement ("Agreement") is made and entered
into as of this 30th day of May, 2001, by and between ▇▇▇▇▇▇▇▇▇▇ Bank, FSB
("Seller"), a federal savings bank organized under the laws of the United
States of America and having its home office in Richmond, Indiana, and Los
Padres Bank, FSB ("Buyer"), a federal savings bank organized under the laws of
the United States of America and having its home office in Solvang,
California.
RECITALS
WHEREAS, Buyer desires to acquire certain assets and assume certain
liabilities of Seller and Seller desires to transfer to Buyer such assets and
liabilities relating to Seller's branch office of Seller located in Mission,
Kansas all as described in more detail below (the "Transaction");
WHEREAS, Buyer desires to operate the Branch Office (as defined below) of
Seller as a branch of Buyer;
NOW THEREFORE, for and in consideration of the premises and the mutual
agreements, representations, warranties and covenants herein contained, the
parties, intending to be bound, hereby agree as follows:
ARTICLE 1 - DEFINITIONS
1.1 Definitions. In addition to the terms defined elsewhere in this
Agreement, as used herein, the following terms have the definitions indicated:
"ACH Items" means automated clearing house debits and credits including
social security payments, federal recurring payments, and other payments
debited and/or credited to or from Deposit accounts pursuant to arrangements
between the owner of the account and third party initiating the credits or
debits.
"APY" means Annual Percentage Yield as defined in Regulation DD, i.e., the
total interest earned on a deposit, based on the interest rate and the
frequency of compounding for a 365 day period, and expressed as a percentage.
"APYE" means Annual Percentage Yield Earned as defined in Regulation DD.
"Account Loans" are those savings account loans and NOW, checking and
other transaction account lines of credit associated with Deposits domiciled at
the Branch Office set forth on Schedule 6.12 hereto and which loans are
authorized in writing and consist of (i) all savings account loans secured by
Deposits, together with all Accrued Interest, if any, and (ii) any overdraft
checking balances or checking account line of credit loan balances, if any.
"Accrued Interest" on any Account Loans means interest that is accrued but
not received through the Closing Date, on Deposits means interest that is
accrued but unposted through the Closing Date and on Retail Repos means any
portion of the repurchase price with respect thereto that has accrued but has
not been paid to the customer.
"Affiliate" of a party means any person, partnership, corporation,
association or other legal entity directly or indirectly controlling,
controlled by, or under common control with that party.
"Assets" means the Branch Lease, Office Lease, Fixed Assets, any Account
Loans, the Swap Rights, the Cash on Hand at the Branch Office and the Records.
"Branch Lease" means all rights of Seller under that certain lease
pursuant to which Seller holds a leasehold interest as tenant in the Branch
Office, which lease is set forth on Schedule 6.4 attached hereto.
"Branch Office" means the branch office of Seller known as the "Kansas
Branch," located at ▇▇▇▇ ▇▇▇▇ ▇▇▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇.
"Business Day" shall mean any Monday, Tuesday, Wednesday, Thursday, or
Friday that is not a federal or Kansas or
California state holiday generally
recognized by banks or savings associations.
"Cash on Hand" means all ▇▇▇▇▇ cash, vault cash, and teller cash located at
the Branch Office.
"Closing" and "Closing Date" shall have the meanings assigned to them in
Article 4.1 of the Agreement.
"Collection Account" means any account domiciled at the Branch Office
through which Seller accepts payments or deposits for credit or deposit to
another account domiciled at the Branch Office.
"Community First Name Rights Sublicense Agreement" shall have the meaning
assigned to such term in Section 2.3.
"Deposits" means a deposit as defined in Section 3(I)(1) of the Federal
Deposit Insurance Act ("FDIA") as amended, 12 U.S.C. Section 1813(I)(1),
including without limitation the aggregate balances of all savings accounts
with positive balances domiciled at the Branch Office, including accounts
accessible by negotiable orders of withdrawal ("NOW" accounts), other demand
instruments, Retirement Accounts, and all other accounts and deposits, together
with Accrued Interest thereon, if any.
"Designated Employee" shall have the meaning assigned to it in Article
11.2(a) of this Agreement.
"Encumbrances" means all mortgages, claims, charges, liens, encumbrances,
easements, restrictions, options, pledges, calls, commitments, security
interests, conditional sales agreements, title retention agreements, leases,
and other restrictions of any kind whatsoever.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"FDIC" means the Federal Deposit Insurance Corporation.
2
"Fed Funds Rate" means the rate for that day set forth opposite the
caption "Federal Fund (Effective)" in the daily statistical release designated
as "Composite 3:30 p.m. Quotations for U.S. Government Securities," or any
successor publication, published by the Federal Reserve Bank of New York.
"Fixed Assets" means all furniture, equipment, trade fixtures, and other
tangible personal property owned or leased by Seller, located in or upon the
Branch Office and Office Premises, and described on Schedule 3.1 hereto.
"▇▇▇▇▇▇▇▇▇▇ Name Rights License Agreement" shall have the meaning assigned
to such term in Section 2.3.
"Hazardous Substance" shall mean chemicals, pollutants, contaminants,
wastes, and substances that have been defined as toxic or hazardous by any
applicable federal, state, county or local law or regulation.
"▇▇▇" means Individual Retirement Account.
"IRS" means Internal Revenue Service.
"Interest Rate Swap" means the LIBOR-based interest rate swap between
Seller and ▇▇▇▇▇▇▇ ▇▇▇▇▇, Inc. having a notional amount of $5,000,000 and a
fixed pay coupon of 5.271% and maturing February 4, 2004.
"Loan Purchase Agreement" means the Loan Purchase Agreement entered into
concurrently herewith pursuant to which Seller shall sell and Purchaser shall
buy all loans attributable to the Seller's Kansas operations, except for
Account Loans (which shall be purchased and sold hereunder).
"Loan Purchase Price" means the purchase price to be paid at Closing for
the loans sold under the Loan Purchase Agreement.
"Name Rights Agreements" shall have the meaning assigned to it in Section
2.3.
"Net Book Value" means the net book value of an asset, as shown on the
books and records of Seller, determined in accordance with generally accepted
accounting principles.
"OTS" means the Office of Thrift Supervision.
"Office Lease" means that certain office lease covering the Office
Premises.
"Office Premises" means the premises located at ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇.
"Realty" means the tenancy interests of Seller under the Branch Lease and
Office Lease.
"Records" means (i) all open records and original documents, located at
the Branch Office or in centralized servicing areas pertaining to the Account
Loans, Collection Accounts, Safe Deposit Boxes, Deposits or Retail Repos all of
which shall comply with all applicable laws, regulations, rules, and business
practices with respect to Account Loans, Collection Accounts,
3
Deposits or Retail Repos acquired from Seller pursuant to this Agreement; and
(ii) an account history of all accounts related to Deposits, Retail Repos and
Account Loans for a period including the current year. Records includes but is
not limited to signature cards, customer cards, customer statements, legal
files, pending files, all open account agreements, Account Loan agreements,
Retirement Account agreements, Safe Deposit Box records, and computer records.
"Recurring Debit" means payments made directly from a Deposit account to a
third party on a regularly scheduled basis pursuant to arrangements between the
owner of the account and the third party receiving the payments directly.
"Retail Repos" means any retail repurchase account between Seller and a
customer attributable to the Branch Office.
"Retirement Accounts" means any Deposit account, generally known as IRAs,
Keoghs or SEPs, maintained by a customer for the stated purpose of the
accumulation of funds to be drawn upon at retirement.
"SAIF" means the Savings Association Insurance Fund of the Federal Deposit
Insurance Corporation.
"Service Contracts" means service and maintenance agreements, equipment
leases and any other agreements, licenses and permits affecting the Branch
Office, all of which are listed on Schedule 6.20 hereto.
"Settlement Date" has the meaning assigned to it in Article 4.2(a) of
this Agreement.
"Swap Obligations" means all obligations of Seller under the Interest Rate
Swap.
"Swap Rights" means all rights of Seller under the Interest Rate Swap.
"TIN" means Taxpayer Identification Number.
ARTICLE 2 - TERMS OF PURCHASE
2.1 Assets.
(a) Purchase and Sale. At the Closing and subject to the terms and
conditions set forth in this Agreement, Seller shall sell, convey, assign, and
transfer to Buyer and Buyer shall purchase and acquire from Seller all of
Seller's right, title, and interest in and to the Assets.
(b) Purchase Price. In consideration for the Assets acquired by and
liabilities assumed by Buyer under this Agreement, Seller shall pay to Buyer an
amount equal to the aggregate amount of the Deposits and Retail Repos plus
Accrued Interest thereon less:
(i) the Net Book Value as of the Closing Date of the Fixed
Assets, as shown in Schedule 3.1.
(ii) the Net Book Value as of the Closing Date of any Account
Loans;
4
(iii) the Loan Purchase Price;
(iv) the amount of all Cash on Hand at the Branch Office as
of the close of business on the Closing Date; and
(v) the amount of the Premium defined in Section 2.2(b) of
this Agreement.
2.2 Liabilities and Premium.
(a) Deposits and Retail Repos. On the Closing Date, subject to the
terms and conditions set forth in this Agreement, Buyer shall, pursuant to the
form of Assignment and Assumption Agreement attached to this Agreement as
Exhibit A, assume liability for the payment and performance of Seller's
obligations after the Closing Date on the Deposits and the Retail Repos in
accordance with the terms of such Deposits and Retail Repos in effect on the
Closing Date.
(b) Premium. In consideration for the liabilities assumed by it under
this Agreement, Buyer shall pay to Seller, as set forth in Article 4.2 of this
Agreement, a premium equal to $5,000,000 (the "Premium").
(c) Assumption of Branch Lease, Office Lease and Service Contracts.
Subject to the terms and conditions hereof, Buyer shall assume the duties and
obligations of Seller as tenant under the Branch Lease and Office Lease and
under the assigned Service Contracts from and after the Closing Date. Buyer
should terminate the office sharing arrangement with the Office Lease effective
at Closing.
(d) Related Assets and Obligations. On the Closing Date, Buyer will
assume all obligations of Seller relating to the Deposits and Retail Repos.
(e) Swap Obligations. On the Closing Date, Buyer will assume all Swap
Obligations from and after the Closing Date.
(f) No Other Debt Obligations or Liabilities Assumed. It is
understood and agreed that, except as expressly set forth in this Article 2,
Buyer shall not assume or be liable for any of the debts, obligations, or
liabilities of Seller of any kind and nature whatsoever with respect to any
period prior to the Closing Date, including, but not limited to, any losses or
liabilities due to or arising from forgery, fraud, defalcation, or any other
improper act or omission, any tax or debt, any liability for unfair labor
practices (such as wrongful termination or employment discrimination), any
liability or obligation of Seller arising out of any threatened or pending
litigation, or any liability with respect to personal injury or property damage
claims. Notwithstanding the preceding sentence, Buyer will assume Seller's
obligations to any Collection Account customers, ACH items, and to any Account
Loan customers pursuant to the terms of the Records and other documents
establishing such customer relationships, and Buyer will be responsible for
modifying the terms and conditions of such customer relationships following the
Closing Date as necessary to conform to Buyer's practices; provided such
modification shall not constitute a breach of the underlying agreement with the
customer as it existed on the Closing Date. Except as set forth in this
Agreement, Buyer shall not assume any liability of Seller that relates to any
act or omission of Seller prior to the Closing.
5
(g) Indemnification. Buyer agrees to indemnify, defend and hold
harmless Seller, any successor in interest of Seller, and any officer,
director, shareholder or employee of any of the foregoing from and against any
claim, debt, charge, encumbrance, loss or liability asserted by any third party
arising from the failure of Buyer to assume any obligation required to be
assumed by Buyer under this Section 2.2.
2.3 Names and Marks. At the Closing, (i) Seller, as licensor, and Buyer,
as licensee, shall enter into an exclusive perpetual, royalty-free license
agreement licensing to Buyer all rights of Seller to use the names
"▇▇▇▇▇▇▇▇▇▇", "▇▇▇▇▇▇▇▇▇▇ Bank" and "▇▇▇▇▇▇▇▇▇▇ Financial Group" and associated
logos and marks in all territories other than Indiana (the "▇▇▇▇▇▇▇▇▇▇ Name
Rights License Agreement"); (ii) Seller shall assign to Buyer all rights of
Seller to use the URLs "▇▇▇▇▇▇▇▇▇▇-▇▇.▇▇▇", "▇▇▇▇▇▇▇▇▇▇.▇▇▇" and
"▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇" (the "URL Assignment"); (iii) Buyer, as licensor, and
Community First Financial Group, Inc., as licensee, shall enter into a
perpetual, royalty-free sublicense agreement covering the use by Community
First Financial Group, Inc., or its designee of the Name Rights in North
Carolina and such other states or markets as are designated therein (the
"Community First Name Rights Sublicense Agreement", and, together with the
▇▇▇▇▇▇▇▇▇▇ Name Rights License Agreement and the URL Assignment, the "Name
Rights Agreements") and (iv) Seller shall enter into such documentation as is
mutually acceptable to the parties requiring Seller, or its successor in
interest, to transfer all of the interest of Seller in and to the foregoing
names, URLs, logos and marks on the earlier of the fifth anniversary of the
Closing Date and December 31, 2006, all subject to the terms and conditions of
the above-referenced documents.
2.4 Prorations. All payments under or pursuant to the Service Contracts
and Branch Lease and Office Lease, all personal property taxes with respect to
the Fixed Assets, any payments or receipts attributable to the Swap Obligations
and Swap Rights and all ordinary operating expenses of the Branch Office
(including amounts payable under maintenance contracts and for utilities, but
excluding insurance) shall be prorated between the parties on the basis of a
365-day year and actual days elapsed. In calculating the Closing Payment, as
outlined in Article 4.2 of this Agreement, Seller will receive a credit for the
amount of all security deposits it has paid to the landlord under the Branch
Lease or Office Lease, as indicated in an estoppel certificate signed by the
landlord.
In addition, in calculating the payment due at the Closing, Buyer will
reimburse Seller for any deposit insurance assessment that Seller has paid to
the Federal Deposit Insurance Corporation (the "FDIC") with respect to the
semi-annual assessment period (as defined in 12 C.F.R. Section 327.8) in which
the Closing Date occurs. Such reimbursement will be prorated and will be
calculated using the Seller's assessment rate as determined by the FDIC pursuant
to 12 C.F.R. Section 327.3 effective for the semi-annual assessment period in
which the Closing Date occurs.
In calculating the payment due at the Closing, Buyer also will receive a
credit for all advance payments received by Seller for obligations relating to
the Assets, Retail Repos and Deposits transferred to Buyer hereunder, which
payments shall be prorated between the parties as of the Closing Date.
6
ARTICLE 3 - TRANSFER OF ASSETS
3.1 Personal Property.
(a) Seller is the lawful owner or lessee of the Fixed Assets, and on
the Closing Date, Seller will assign to Buyer all right, title, and interest in
and to the Fixed Assets located at the Branch Office free and clear of all
Encumbrances. Seller shall cause a ▇▇▇▇ of sale and inventory of such property
in the form of Exhibit B to be delivered to Buyer on the Closing Date to effect
such transfer.
(b) Attached hereto as Schedule 3.1 is a schedule of the Fixed
Assets, including the tangible personal property situated at the Branch Office
including furniture, fixtures, equipment, and ATMs, which schedule identifies
each item of such personal property with reasonable particularity, giving the
net book value of such item on Seller's books and describing any Encumbrances
thereon.
3.2 Condition and Destruction of Property. Seller hereby agrees that the
personal property to be delivered on the Closing Date shall be substantially
the same as the personal property set forth on Schedule 3.1, ordinary wear and
tear excepted provided, that in the event of material damage to the Fixed
Assets, Seller shall have the option to repair or replace such Fixed Assets at
Seller's sole cost and expense. Buyer hereby agrees that the Fixed Assets shall
be delivered by Seller to Buyer in "as-is" condition, without representation
and warranty of any kind except as otherwise specifically set forth in this
Agreement, and taking into account ordinary wear and tear from the date of this
Agreement through the Closing Date. Seller shall assign to Buyer any
manufacturer or supplier warranty covering such Fixed Assets. Seller will give
Buyer prompt written notice of (a) any material fire or casualty on any of the
Assets, and (b) any actual or threatened condemnation of all or any part of any
of the Premises. Upon receipt of such notice, Buyer may, in its sole and
exclusive discretion, within fourteen (14) days of receipt of such notice, elect
either to: (x) terminate this contract, in which event neither party shall have
any further liability or obligation to the other; or (y) elect to close this
transaction, excluding herefrom the personal property in question and deducting
from the purchase price an amount mutually agreeable to the parties, provided
that if no such agreement can be reached, Buyer may elect to terminate this
Agreement; or (z) elect to close this transaction, including therein the
personal property or real property in question, in which event Seller shall (i)
assign, transfer and set over unto Buyer all right, title and interest Seller
has in and to any condemnation award, casualty award, insurance policy,
insurance payment, or any manner of payment whatever in any way related to the
condemnation or casualty, and (ii) in the event of a casualty, extend Buyer a
credit against the purchase price in the amount of any deductible carried under
any policy of insurance. For purposes hereof a "material fire or casualty" is
one that is reasonably estimated by Buyer to cost more than fifty thousand
dollars ($50,000) to repair.
3.3 Cash on Hand. At the Closing, Seller agrees to execute an assignment
to Buyer effecting the transfer to Buyer of the Cash on Hand that shall specify
the amount of Cash on Hand at the Branch Office as of the Closing Date.
3.4 Allocation. The Buyer and Seller agree that the allocation of the
purchase price will be made in writing at Closing, based on the relative fair
market value of the assets and liabilities acquired, as required by Section
1060 of the Internal Revenue Code of 1986, as amended, and agree to utilize
such allocation for federal income tax purposes. Such allocation will be
consistently reflected by each party on their federal income tax returns and
similar
7
documents, including, but not limited to, Internal Revenue Service Form 8594.
Neither party shall file any document or assert any position that conflicts or
is inconsistent with such allocation, and each party agrees to inform the other
promptly upon receipt of any communication from (or forwarding any communication
to) the Internal Revenue Service relating to Form 8594. Each party shall
cooperate fully with the other in filing Form 8594.
ARTICLE 4 - CLOSING
4.1 Closing Date. The closing ("Closing") under this Agreement shall be
held at such time and place as shall be mutually agreeable to the parties, as
promptly as practicable after the fulfillment or waiver of all the terms and
conditions contained in Article 9 of this Agreement.
The date on which the Closing is to be held is herein called the "Closing
Date." The Closing shall be deemed to occur at 11:59 p.m. Pacific Time on the
Closing Date, and the Branch Office will close for business at 3:00 p.m.
Central time on the Closing Date.
4.2 Closing Payment. The amount owed to Seller by Buyer pursuant to
Article 2.1(b) of this Agreement will be netted against the amount due the
appropriate party under Article 2.4 of this Agreement to determine the closing
payment due Buyer from Seller as of the Closing Date (the "Closing Payment").
Because the parties acknowledge that certain amounts to be paid may not be
finally determinable until after the Closing Date, the Closing Payment will be
paid in the following manner:
(a) Seller will pay Buyer the amount of the Closing Payment as is
then determinable on the first Business Day after the Closing Date (the
"Settlement Date").
(b) All payments shall be made by wire transfer in immediately
available funds no later than 10:00 a.m. Pacific time on the Settlement Date.
Any amounts received after 10:00 a.m. Pacific time on the Settlement Date shall
accrue interest at the Fed Funds Rate for that day.
4.3 Deliveries by Seller. At or prior to the Closing, Seller shall deliver
to Buyer the documents set forth in Article 9.2(f) of this Agreement.
4.4 Deliveries by Buyer. At or prior to the Closing, Buyer shall deliver
to Seller the documents set forth in Article 9.1(c) of this Agreement.
4.5 Post-Closing Adjustments. The parties to this Agreement acknowledge
that certain amounts referred to herein may not be finally determinable until
after the Closing Date. The parties shall cooperate in the prompt determination
of such amounts and within fifteen (15) days after the Closing Date shall
settle amounts in a manner consistent with the express terms of this Agreement.
ARTICLE 5 - REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller, as of the date hereof and as of
the Closing Date, unless another date is specifically mentioned below, as
follows:
5.1 Organization and Authority. Buyer is a savings association duly
organized, validly existing, and in good standing under the laws of the United
States of America with full power and authority to carry on its business as now
being conducted and to own and operate
8
the properties that it now owns and operates. The execution, delivery, and
performance by Buyer of this Agreement are within Buyer's corporate power, have
been duly authorized by all necessary corporate action, and do not contravene
or constitute a default under or conflict with any provision of applicable law
or regulation or of Buyer's charter or by-laws or any judgment, injunction,
order, decree, material agreement, or material instrument binding upon Buyer.
This Agreement has been duly executed and delivered by Buyer and constitutes
the valid and legally binding obligation of Buyer, enforceable against it in
accordance with its terms, subject to bankruptcy, receivership, insolvency,
reorganization, moratorium or similar laws affecting or relating to creditors'
rights generally and subject to general principles of equity.
5.2 Litigation. There is no action, suit, proceeding or investigation
pending against Buyer, or to the knowledge of Buyer threatened against or
affecting Buyer, before any court or arbitrator or any governmental body, agency
or official that, alone or in the aggregate, would, if adversely determined,
adversely affect the ability of Buyer to perform its obligations under this
Agreement or that in any manner questions the validity of this Agreement. Buyer
is not aware of any facts that would reasonably afford a basis for any such
action, suit, proceeding or investigation.
5.3 Governmental Notices. Buyer has received no notice from any federal,
state, or other governmental agency indicating that such agency would oppose or
not grant or issue its consent or approval, if required, with respect to the
transactions contemplated hereby.
5.4 Regulatory Approvals. The information furnished or to be furnished
by Buyer for the purpose of enabling Buyer to complete and file applications
with any regulatory body is or will be true and complete as of the date so
furnished. There are no facts known to the Buyer, which Buyer has not disclosed
to the Seller in writing, which, insofar as Buyer can now reasonably foresee,
may have a material adverse effect on the ability of the Buyer to obtain all
requisite regulatory approvals or to perform its obligations pursuant to this
Agreement.
5.5 Regulatory Approvals; Performance of Agreement. Other than the
required approval of the OTS as well as any applicable approval or consent of
the FDIC, and subject to the expiration of any applicable waiting period, no
regulatory approvals are required for the execution, delivery and performance
by Buyer of this Agreement and the consummation by it of the transactions
contemplated hereby.
5.6 Community Reinvestment Act. Buyer received a rating of "Satisfactory"
in its most recent examination or interim review with respect to the Community
Reinvestment Act. Buyer has not been advised of any supervisory concerns
regarding its compliance with the Community Reinvestment Act. To Buyer's
knowledge, there are no threatened or pending actions, proceedings, or
allegations by any person or regulatory agency that may cause the OTS or the
FDIC to deny or fail to issue any regulatory approval.
ARTICLE 6 -- REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer, as of the date of this Agreement
and as of the Closing Date, unless another date is specifically mentioned
below, as follows:
6.1 Organization and Authority. Seller is a savings association duly
organized, validly existing, and in good standing under the laws of the United
States of America with full power and authority to carry on its business as now
being conducted and to own and operate the properties that it owns and
operates, including the Branch Office. The execution, delivery,
9
and performance by Seller of this Agreement are within Seller's corporate power,
have been duly authorized by all necessary corporate action and do not
contravene or constitute a default under or conflict with any provision of
applicable law or regulation or of the charter or by-laws of Seller or any
judgment, injunction, order, decree, material agreement, or material instrument
binding upon Seller or to which any of the assets to be transferred hereby are
subject or that could result in the creation or imposition of any lien or
encumbrance on such property. This Agreement has been duly executed and
delivered by Seller and constitutes the valid and legally binding obligation of
Seller, enforceable against it in accordance with its terms, subject to
bankruptcy, receivership, insolvency, reorganization, moratorium or similar laws
affecting or relating to creditors' rights generally and subject to general
principles of equity.
6.2 Litigation. There is no action, suit, proceeding or investigation
pending against Seller, or to the best knowledge of Seller threatened against or
affecting Seller, before any court or arbitrator or any governmental body,
agency, or official that, alone or in the aggregate, if adversely determined,
could adversely affect (i) the value of the Deposits, the Retail Repos or the
Assets, (ii) the operations of the Branch Office, or (iii) the ability of Seller
to perform its obligations under this Agreement, or that in any manner questions
the validity of this Agreement. Seller is not aware of any facts that would
reasonably afford a basis for any such action, suit, proceeding or
investigation. Except for the rights of the applicable customer or counterparty,
none of the Deposits or Retail Repos are subject to any Encumbrances or any
legal restraint or other legal process, other than customary court orders,
levies, and garnishments affecting the depositors, and in the case of Retail
Repos, brokerage and clearing house liens in the ordinary course of business on
the underlying securities and all of which Encumbrances are described on
Schedule 6.2.
6.3 Title to Assets Other Than Realty. Seller is the lawful owner of and
has good and marketable title to any Account Loans, the Fixed Assets and all
Records, free and clear of all Encumbrances. Delivery to Buyer of the
instruments of transfer of ownership contemplated by this Agreement will vest
in Buyer good and marketable title to any Account Loans, the Fixed Assets and
all Records, free and clear of all Encumbrances, except to the extent
applicable law provides to a customer a right of offset against Seller.
6.4 Ownership.
(a) Schedule 6.4 lists each of the leases and subleases pursuant to
which Seller holds a leasehold interest in the Branch Office and the Office
Premises, and Seller is the current lessee under the Branch Lease and Office
Lease.
(b) Each of the Branch Lease and Office Lease is the legal, valid and
binding obligation of the Seller. Seller's leasehold interest is not subject to
any Encumbrances, and there does not exist with respect to the Seller's
obligations under the Branch Lease, or to Seller's knowledge with respect to
the lessor's obligations under the Branch Lease or Office Lease, any material
default or any event or condition that, after notice or lapse of time or both,
could constitute such a material default.
6.5 Deposits and Retail Repos.
(a) Seller has delivered to Buyer a true and complete copy of the
account forms for all Deposits and Retail Repos offered by Seller at the Branch
Office. Except as identified to Buyer by Seller in writing pursuant to Article
12.5 of this Agreement, all the accounts related to the Deposits and Retail
Repos at the Branch Office are in material
10
compliance with all applicable laws, orders and regulations, and to the
knowledge of Seller, were originated in material compliance with all applicable
laws, orders and regulations.
(b) Schedule 6.5 is a true and correct schedule of the Deposits and
Retail Repos prepared as of the date indicated thereon (which shall be updated
through the Closing Date), listing by category and the amount of such deposits,
together with the amount of accrued but unpaid interest thereon. All Deposits
are insured to the fullest extent permissible by the FDIC. Subject to the
receipt of all requisite regulatory approvals, Seller has and will have at the
Closing Date all rights and full authority to transfer and assign the Deposits
and Retail Repos without restriction. As of the date hereof, with respect to
the Deposits and Retail Repos:
(i) Subject to items returned without payment in full ("Return
Items") and immaterial bookkeeping errors, all interest accrued or accruing on
the Deposits and any portion of the repurchase price for the Retail Repos, if
any, has been properly credited thereto, and properly reflected on Seller's
books of account, and Seller is not in default in the payment of any thereof;
(ii) Subject to Return Items and immaterial bookkeeping errors,
Seller has timely paid and performed all of its obligations and liabilities
relating to the Deposits and Retail Repos as and when the same have become due
and payable, and the Deposits and Retail Repos include none that is in default
or exists by virtue of a default by Seller; and
(iii) Subject to immaterial bookkeeping errors, Seller has
administered all of the Deposits and Retail Repos in accordance with applicable
fiduciary duties and good and sound financial practices and procedures, and has
properly made all appropriate credits and debits thereto.
6.6 Governmental Notices. Seller has received no notice from any federal,
state, or other governmental agency indicating that such agency would oppose or
not grant or issue its consent or approval, if required, with respect to the
transactions contemplated hereby.
6.7 Taxes. Except as set forth in Schedule 6.7, Seller has filed all
required tax returns and reports (including payroll withholding, sales, use,
transfer, excise and property taxes) relating to the Branch Office or the
Assets and any business conducted with respect to the Assets. For all periods
up to and including the Closing Date, Seller is not delinquent in the payment
of any such taxes (including additions to tax, penalties, and interest),
withholdings or other governmental charges the nonpayment of which could
adversely affect the Branch Office, the Assets or the use thereof or that could
cause Buyer to incur any liability. Seller has not received any notice
indicating that any taxing authority has asserted any claim for the assessment
of any such tax liability (including additions to tax, penalties, and
interest), withholding or other governmental charges.
6.8 Records and Documents. The Records to be delivered to Buyer under
Article 2.1(a) of this Agreement are and shall be sufficient to enable Buyer to
conduct a banking business with respect thereto under the same standards as
Seller has heretofore conducted such business.
6.9 Community Reinvestment Act. Seller received a rating of
"Satisfactory" in its most recent examination or interim review with respect to
the Community Reinvestment Act. Seller has not been advised of any supervisory
concerns regarding its compliance with the Community Reinvestment Act. To
Seller's knowledge, there are no threatened or pending
11
actions, proceedings, or allegations by any person or regulatory agency that
may cause the OTS or the FDIC to deny or fail to issue any regulatory approval.
6.10 Regulatory Approvals. The information furnished or to be furnished
by Seller to Buyer pursuant to Articles 8.1 and 8.3 of this Agreement and for
the purpose of enabling Buyer to complete and file all requisite regulatory
applications is or will be true and complete as of the date so furnished. There
are no facts known to the Seller, which Seller has not disclosed to the Buyer
in writing, which, insofar as Seller can now reasonably foresee, may have a
material adverse effect on the ability of the Seller to obtain all requisite
regulatory approvals or to perform its obligations pursuant to this Agreement.
Other than the required approval of the OTS as well as any applicable approval
or consent of the FDIC, and subject to the expiration of any applicable waiting
period, no regulatory approvals are required for the execution, delivery and
performance by Seller of this Agreement and the consummation by it of the
transactions contemplated hereby.
6.11 Employees. There is no action, suit, or proceeding pending against
Seller, or to the best knowledge of Seller threatened against or affecting
Seller, before any court or arbitrator or any governmental body, agency, or
official that has been brought (or threatened to be brought) by or on behalf of
any employee at the Branch Office.
6.12 Account Loans.
(a) Schedule 6.12 is a true and correct schedule of all Account
Loans, including the aggregate outstanding principal shown thereon, of the
Seller as of the date indicated thereon (which shall be updated through the
Closing Date) to be transferred to Buyer hereunder.
(b) Any and all Account Loans extended by the Seller and any
extensions, renewals or continuations of such Account Loans were made in
accordance with customary lending standards of the Seller in the ordinary
course of business, and are secured by deposit accounts that constitute
Deposits hereunder. Any Account Loans are evidenced by appropriate and
sufficient documentation based upon customary and ordinary past practices of
the Seller.
(c) All Account Loans have been made, in all material respects, in
accordance with all applicable statutes and regulatory requirements.
6.13 Insurance. All of the assets and properties of Seller at the Branch
Office are covered by effective insurance in amounts, types and forms as are
customary and appropriate for its business, operations, properties and assets.
All amounts due and payable under such insurance policies are fully paid, and
all such insurance policies are in full force and effect.
6.14 Operation; Compliance with Law. Seller holds all licenses,
franchises, permits and authorizations necessary for the lawful conduct of its
business at the Branch Office. Seller has complied with all laws, regulations,
opinions, orders, ordinances, judgments or degrees of all governmental bodies,
agencies or subdivision (federal, state, local, foreign or otherwise)
applicable to the Branch Office or any part of their operation, including
without limitation, the FDIC and the OTS, except where the failure to have so
complied would not, individually or in the aggregate, have a material adverse
effect on the assets, properties, business, financial condition or results of
operations of the Branch Office. The Seller has not received any written
notification of any outstanding asserted failure by it to comply with any such
laws. Without limiting the generality of the foregoing, to the best knowledge
of Seller, after due inquiry, the
12
Branch Office is in compliance with applicable requirements of the Americans
with Disabilities Act ("ADA") and Seller agrees that the cost of any repairs or
replacements necessary to bring the Branch Office or any part thereof into
compliance with the ADA during the time period between the date of this
Agreement and the Closing Date shall be the obligation of Seller. The Branch
Office (including improvements) and the current use and operation thereof by
Seller is in compliance with and authorized by applicable zoning and other land
use regulations, including without limitation, building, fire, health, safety,
hazardous waste and environmental codes and all private covenants, restrictions
and easements as they apply to Seller's current use and operations, except where
the failure to be in compliance would not, individually or in the aggregate,
have a material adverse effect on the assets, prospects, business, financial
condition or results of operations of the Branch Office. There are no facts or
circumstances existing or, to the best knowledge of Seller threatened, which
could have a material adverse effect on the present use of the Branch Office.
Seller has not received notice that any governmental authority considers the
Branch Office to violate or to have violated any fire, zoning, health, building,
hazardous waste or environmental code or other ordinance, law or regulation or
order of any government or any agency, body or subdivision thereof. Except for
(i) agreements previously delivered to Buyer, and (ii) agreements necessary or
desirable to consummate the transaction contemplated hereby, Seller is not a
party to any other agreement relating to the Branch Office nor is there any
other agreement by which the Branch Office is bound.
6.15 Environmental.
(a) To the best of Seller's knowledge, no Hazardous Substances have
been stored, disposed of or released upon or below the Branch Office by Seller
in violation of any environmental law.
(b) To the best of Seller's knowledge, Seller has not received any
written communication from any governmental authority alleging the violation of
any environmental law with respect to the Branch Office.
(c) To the best of Seller's knowledge, no person or entity has
asserted any claim against Seller arising out of, based upon, or resulting from
(i) the presence or release into the environment of any Hazardous Substance upon
or below the Branch Office in violation of any environmental law, or (ii) the
violation or alleged violation of any environmental law with respect to the
Branch Office.
6.16 Schedules. The information set forth in the Schedules hereto is true,
correct and complete as of the date indicated on that Schedule and will be true,
correct and complete as updated through the Closing Date.
6.17 No Defaults. There are no defaults by Seller, or any unresolved
disputes, under the Service Contracts or any other Assets to be transferred
hereunder, nor, to the best knowledge of Seller, any defaults with respect to
the obligations of any other party thereto.
6.18 Related Party Transactions. No director, officer or Affiliate of
Seller is party to the Branch Lease, the Office Lease (other than pursuant to
the sharing arrangement between ▇▇▇▇▇▇▇▇▇▇ Financial Group and ▇▇▇▇▇▇▇▇▇▇ West
Financial Group, Inc.) or Service Contracts.
6.19 Disclosure. No representation or warranty of Seller and no statement
or information relating to Seller or the Branch Office, the Office Premises or
Assets contained in (i)
13
this Agreement (including the Schedules hereto), or (ii) in any certificate or
document furnished or to be furnished by or on behalf of Seller to Buyer
pursuant to this Agreement, contains or will contain any untrue statement of a
material facts or omits or will omit to state a material fact necessary to make
the statements made herein or therein, in light of the circumstances in which
they were made, not misleading.
6.20 Service Contracts. Schedule 6.20 lists all the contracts, licenses,
permits, service and maintenance agreements and other agreements entered into in
connection with the operation of the Branch Office or Office Premises.
6.21 Documents. Seller has delivered to Buyer true, correct and complete
copies of the following:
(a) any and all real and personal property leases, including the
Branch Lease and the Office Lease, certificates of occupancy, Service Contracts,
and all other agreements relating to the operation of the Branch Office and the
Office Premises or to the Fixed Assets;
(b) any plans and specifications for the improvements constructed on
the Branch Office and as-built plans and surveys;
(c) all notices received by Seller during the past three (3) years
regarding the Branch Office or Office Premises with respect to violation of any
statutes, rules or regulations of government agencies or violation of any
easements, covenants, conditions or restrictions affecting the Realty; and
(d) copies of any environmental site assessment reports or surveys on
the Realty.
ARTICLE 7 - COVENANTS OF BUYER
7.1 Fiduciary Relationship. Pursuant to the terms of the Transfer Agreement
attached hereto as EXHIBIT C, Buyer agrees to assume all of the fiduciary
relationships of Seller arising out of any Retirement Accounts assumed by Buyer
under Article 2.2 hereof, and with respect to such accounts, Buyer shall assume
all of the obligations and duties of Seller as fiduciary and succeed to all such
fiduciary relationships of Seller as fully and to the same extent as if Buyer
had originally acquired, incurred, or entered into such fiduciary relationships.
Notwithstanding anything in this Agreement to the contrary, however, Buyer will
not assume or be responsible for any act or failure to act of Seller in
connection with such Retirement Accounts on or prior to the Closing Date.
7.2 Payment of Checks. From and after the Closing Date, Buyer agrees to pay
to the extent of sufficient available funds on deposit, all properly drawn
checks, drafts, and negotiable orders of withdrawal timely presented to it by
mail, over its counters, or through clearings if such items are drawn by
depositors whose Deposits or accounts on which such items are drawn are
Deposits, whether drawn on the check or draft forms provided by Seller, for at
least one hundred twenty (120) days after the Closing Date, or on those provided
by Buyer. In addition, Buyer shall, in all other respects, discharge the duties,
liabilities and obligations with respect to the Deposits and Retail Repos to the
extent such duties, liabilities or obligations occur following the Closing.
14
7.3 Account Loans. On and after the Closing Date, Buyer shall continue to
honor and provide credit in accordance with the terms and provisions of any
Account Loans transferred under this Agreement until such provisions are
properly modified or canceled by Buyer.
7.4 Confidentiality of Records. Buyer and its authorized agents and
representatives shall receive and treat all Records and other documents and
customer information obtained pursuant to any provision of this Agreement as
confidential, until the transactions contemplated by this Agreement have been
consummated, and if not consummated, shall, upon request of Seller, return to
Seller all originals and copies of such documents or other materials containing
such information or Records. Thereafter, Buyer shall treat such information
consistent with law. Until the Closing Date, Buyer shall use all such
information only for purposes of effectuating this Agreement. Buyer acknowledges
that Buyer may in certain instances receive from Seller customer information
respecting assets and deposits of Seller not being transferred to Buyer, and
Buyer agrees not to use any such information unrelated to Assets or Deposits
transferred hereby except as reasonably necessary to service transferred Assets
or Deposits.
7.5 Assistance in Obtaining Regulatory Approval. Buyer agrees to use all
reasonable efforts to assist Seller in obtaining all regulatory approvals, if
any, necessary for Seller to sell the Branch Office, and Buyer will provide at
the earliest practicable time to Seller or the appropriate regulatory
authorities all information reasonably required to be submitted by Seller in
connection with such approvals.
7.6 Further Assurances. On and after the Closing Date, Buyer shall give
such further assurances to Seller and upon Seller's request shall execute,
acknowledge, and deliver all such acknowledgements and other instruments and
take such further action as may be necessary and appropriate to effectively
relieve and discharge Seller from any obligations remaining under the Assets,
Retail Repos, Deposits, and other obligations assumed by Buyer hereunder;
provided, however, that Buyer need not incur any material costs or expenses in
connection with the undertakings contained in this Article 7.6 unless such costs
or expenses are paid by Seller.
7.7 Consents. Buyer will use its reasonable best efforts to obtain prior
to the Closing Date all consents, approvals, or authorizations of all
governmental authorities or agencies required for the execution, delivery, and
performance by Buyer of this Agreement and the consummation by it of any
transactions contemplated hereby.
7.8 Interference. Between the date hereof and the Closing Date, and
subject to the obligations of Seller pursuant to Section 8.1, Buyer shall not
interfere with Seller's normal operations or its customers or employee
relations; provided, however, that it is understood and agreed that with
reasonable notice, Buyer may engage in training of Branch Office employees on
terms mutually agreed to by Buyer and Seller.
7.9 Conduct of Business. Between the date hereof and the Closing Date,
Buyer and its Affiliates shall not undertake any marketing or advertising
efforts specifically directed to Seller's customers that are intended to reduce
the amount of the Deposits or Retail Repos as of the Closing Date.
7.10 Regulatory Matters. Buyer shall, from the date hereof through the
Closing Date, keep Seller advised with respect to any and all regulatory matters
or proceedings affecting the Branch Office and shall promptly forward to Seller
copies of all correspondence, notices, orders,
15
memoranda or other written material received from any regulatory agency
relating to the Branch Office and shall provide Seller full access to its
regulatory files to the extent permitted by law.
7.11 Intention of the Parties. It is the intention of the parties that all
of the assets (under GAAP) of the Kansas Branch, including, but not limited to,
any and all leases, contracts, agreements, other real estate owned, customer
accounts, loans, ▇▇▇▇▇▇, swaps, cash on hand and records are being purchased by
the Buyer pursuant to this Agreement and that all of the liabilities (under
GAAP) of the Kansas Branch, including, but not limited to, any deposits, retail
repurchase accounts, leases, contractual obligations and all other obligations
related to the assets are being assumed by the Buyer pursuant to this Agreement.
ARTICLE 8 - COVENANTS OF SELLER
8.1 Access of Records and Information; Personnel: Customers.
(a) Upon reasonable notice, Seller shall afford to the officers and
authorized representatives of Buyer free and full access during regular business
hours to the offices, properties, books, contracts, commitments and records of
Seller in order that Buyer may have full opportunity to make such investigations
as it shall desire of the Deposits, Retail Repos, Assets, Account Loans and the
operations of the Branch Office. The officers of Seller shall furnish Buyer with
such additional financial and operating data and other information relating to
the assets, properties and business of the Branch Office as Buyer shall from
time to time reasonably request. Seller shall consent, upon reasonable notice,
to the review by the officers and authorized representatives of Buyer of the
reports and working papers of Seller's independent auditors (upon reasonable
advance notice) and to discussions by the officers and authorized
representatives of Buyer with parties with which Seller has business
relationships so long as such investigation is limited to the Branch Office.
8.2 Operation in Ordinary Course. From the date hereof to the Closing
Date, Seller shall: (a) not engage in any transaction affecting the Branch
Office, the Deposits, the Retail Repos or the Assets except in the ordinary
course of business, and shall operate and manage the business of the Branch
Office in the ordinary course consistent with past practices; (b) maintain the
Branch Office in a condition substantially the same as on the date of this
Agreement, reasonable wear and use excepted; (c) maintain its books of accounts
and records in the usual, regular and ordinary manner; and (d) duly maintain
compliance with all laws, regulatory requirements and agreements to which the
Branch Office is subject or by which any of them is bound. Without limiting the
generality of the foregoing, prior to the Closing Date, Seller shall not,
without the prior written consent of Buyer, which consent shall not be
unreasonably withheld:
(a) fail to maintain the Assets in their present state of repair,
order and condition, reasonable wear and tear excepted;
(b) fail to maintain its books, accounts and records in accordance
with generally accepted accounting principles consistently applied;
(c) fail to comply in all material respects with all applicable laws
and regulations relating to or affecting the operation of the Branch Office;
(d) authorize or enter into any contract or amend, modify or
supplement any material contract relating to or affecting the operation of the
Branch Office;
16
(e) take any action, or enter into or authorize any transaction, other
than in the ordinary course of business and consistent with past practice,
relating to or affecting the operation of the Branch Office;
(f) do any act that, or omit to do any act the omission of which, could
cause a breach of any contract, commitment or obligation relating to or
affecting the operation of the Branch Office;
(g) make any changes in its accounting systems, policies, principles or
practices relating to or affecting the operation of the Branch Office;
(h) enter into or renew any data processing service contract relating to
or affecting the operation of the Branch Office;
(i) make any change in any lease relating to the Branch Office;
(j) cause the Branch Office to engage or participate in any material
transaction or incur or sustain any material obligation except in the ordinary
course of business;
(k) cause the Branch Office to transfer to Seller's other operations or
branches any (i) Account Loans, (ii) Fixed Assets, (iii) employees or (iv)
Records, except upon the unsolicited request of a depositor in the ordinary
course of business;
(l) cause the Branch Office to transfer to Seller's other operations any
Deposits or Retail Repos, except upon the unsolicited request of a depositor in
the ordinary course of business;
(m) make any loan or commitment for any loan for the account of the
Branch Office that will constitute an Asset to be acquired by Buyer, except for
loans and commitments that Seller legally is able to make and that are made in
the ordinary course of business and that are not in excess of $250,000 for
single family residential first loan mortgage loans and $100,000 for all other
loans, unless Buyer shall have consented thereto, such consent to be presumed
in the event the written credit recap shall have been provided to Buyer and
Buyer shall have failed to object on or before the expiration of five Business
Days thereafter;
(n) undertake any actions that are inconsistent with a program to use all
reasonable efforts to maintain good relations with employees employed at or
customers of the Branch Office;
(o) transfer, assign, encumber, or otherwise dispose of, or enter into
any contract, agreement, or understanding to transfer, assign, encumber, or
otherwise dispose of, any of the Assets except in the ordinary course of
business;
(p) invest in any Fixed Assets or improvements in excess of $2,500 at
each of the Branch Office except for commitments previously disclosed to Buyer
in writing, made on or before the date of this Agreement for replacements of
furniture, furnishings and equipment, and for normal maintenance and
refurbishing purchased or made in the ordinary course of business;
(q) increase or agree to increase the salary, remuneration, or
compensation of persons employed at the Branch Office other than in accordance
with Seller's customary
17
policies and past practices and/or any bank-wide changes, or pay or agree to
pay any uncommitted bonus to any such employees other than regular bonuses
granted based on historical practice; provided, however, Seller may, at its
option (and without in any way assuming an obligation to do so), (i) make
payments to or for employees in lieu of or as partial compensation for savings
incentives or other employee benefits, and (ii) pay incentive compensation to
such employees for purposes of retaining their services or maintaining Deposit
levels through the Closing Date. Seller hereby agrees that no annual salary
adjustments will be made without the prior written approval of Buyer;
(r) fail to use its best efforts to preserve the present operations
of the Branch Office intact, keep available the services of its present
officers and employees or to preserve its present relationships with persons
having business dealings with the Branch Office;
(s) amend or modify any of its promotional, deposit account or
account loan practices with respect to the Branch Office, other than amendments
or modifications in the ordinary course of business or otherwise consistent
with the provisions of this Agreement;
(t) fail to maintain deposit rates at the Branch Office
substantially in accord with past standards and practices; or
(u) change or amend its schedules or policies relating to service
charges or service fees at the Branch Office.
8.3 Assistance in Obtaining Regulatory Approvals. Seller agrees to use
all reasonable efforts to assist Buyer in obtaining all regulatory approvals
necessary to complete the transactions contemplated hereby, and Seller will
provide at the earliest practicable time to Buyer or to the appropriate
regulatory authorities all information reasonably required to be submitted by
Buyer in connection with such approvals.
8.4 No Encumbrances. Between the date of this Agreement and the Closing
Date, Seller will not create or suffer to exist any new Encumbrance on any of
the Assets, or otherwise enter into any material transaction or make any
material commitment relating to any of the Assets, without the prior written
consent of Buyer, which consent shall not be unreasonably withheld.
8.5 Consents. Seller shall secure all necessary corporate consents and
all consents and releases required of third parties (except those involving
Buyer) and shall comply with all applicable laws, regulations, and rulings in
connection with this Agreement and the consummation of the transactions
contemplated hereby.
8.6 Solicitation of Accounts. Prior to the Closing, Seller will not
knowingly solicit Deposits or other financial products from persons who have
any account or accounts with the Branch Office; provided, however, that the
foregoing provision shall not limit the right of Seller to advertise for
banking business from the public generally or at other offices of Seller.
8.7 Maintenance of Accounts. Seller shall use its best efforts to retain
at the Branch Office the Deposits and Retail Repos that are domiciled at the
Branch Office as of the date of this Agreement.
8.8 Books and Records. Seller shall retain all books and records relating
to the Branch Office that, due to the nature and format of the records of
Seller for its branch offices,
18
cannot be segregated from records relating to offices other than the Branch
Office, but in connection with the Closing, Buyer shall receive possession of,
and right, title and interest to and in, all such books and records that can be
segregated from records relating to offices other than the Branch Office and are
ordinarily maintained at or may be transferred to the Branch Office. In each
case the books and records directly relating to Branch Office operations,
assets, and liabilities prior to the Closing Date that are retained by one party
shall be open for inspection by the other party and its authorized agents,
representatives, and regulators during regular business hours after the Closing
Date and the party with the right of inspection may, at its own expense, make
such copies of and excerpts from such books and records as it may deem
desirable. All books and records relating to Branch Office operations, assets,
and liabilities prior to the Closing Date shall be maintained for a period that
is at least the longer of the period required by law or the normal retention
period under Seller's records management program unless the parties shall,
applicable law permitting, agree upon a shorter period. Should one party's audit
or inspection of records in another party's possession result in the second
party's employees or agents having to devote any substantial amount of time or
such party having to allocate facilities or equipment or having to incur any
substantial costs, then the second party shall be entitled to reasonable
reimbursement for all such costs incurred.
8.9 Insurance Policies. Seller will maintain in effect through and until
the Closing Date all current insurance policies set forth in Schedule 8.9 of
this Agreement or comparable policies of insurance as reasonably agreed to by
Buyer and Seller.
8.10 Further Assurances. On and after the Closing Date, Seller shall (i)
give such further assistance to Buyer and shall execute, acknowledge, and
deliver all such instruments and take such further action as may be necessary
and appropriate effectively to vest in Buyer full, legal, and equitable title to
the Assets, and (ii) use its best efforts to assist Buyer in the orderly
transfer of the Assets, Retail Repos and Deposits being acquired by Buyer;
provided, however, that Seller need not incur any material costs or expenses in
connection with the undertakings contained in this Article 8.10 unless such
costs or expenses are paid by Buyer. In particular, and without limiting the
generality of the foregoing:
(a) As an accommodation to Seller and without assuming any liability
to Seller, Seller will, for a period of one hundred twenty (120) days after the
Closing Date, remit to Buyer, at the cost and expense of Buyer, promptly after
receipt by Seller after the Closing Date at any of its other offices all
payments relating to any Account Loans or amounts intended for deposit to the
accounts that are part of the Deposits or otherwise relating to the Deposits or
any Account Loans and after such one hundred twenty (120) day period Seller may
return such items marked "Refer to Maker" with instructions on making payment to
Buyer.
(b) With respect to checks or drafts drawn against accounts that are
Deposits, Seller will for a period of one hundred twenty (120) days after the
Closing Date cooperate with Buyer and take all reasonable steps requested by
Buyer in writing, at the cost and expense of Buyer, to ensure that, on and after
the Closing Date, each such item that is coded for presentment to Seller or to
any bank for the account of Seller is delivered to Buyer in a timely manner and
in accordance with applicable law and clearing house rules or agreements. After
such one hundred twenty (120) day period Seller may return such items marked
"Refer to Maker."
(c) As of the Closing Date all (i) ATM access cards issued by Seller
to customers of the Branch Office who will not have ATM-accessible accounts with
Seller after the Closing Date, and (ii) check guarantee cards issued by Seller
to customers of the Branch Office
19
who will not have checking accounts with Seller after the Closing Date, will be
void. In connection with the notices to depositors described in Article 12.8 of
this Agreement, Seller will notify customers in writing at least fifteen (15)
Business Days prior to the Closing Date of such cancellation of the ATM access
cards and check guarantee cards. Seller will take any other actions necessary or
appropriate to limit, except as set forth in this Agreement or through Buyer's
proper channels, customers' access after the Closing Date to funds transferred
to Buyer pursuant to this Agreement.
(d) Buyer and Seller agree to ensure an orderly transfer of all data
tapes and processing information and to facilitate an electronic and systematic
conversion of all applicable data regarding Account Loans, ATM Cards, Collection
Accounts, Retail Repos and Deposits. Seller agrees to provide, at Seller's cost:
(i) within five (5) business days after the date of this Agreement, (a) all
information necessary to complete such conversion processing, (b) the initial
data processing pre-conversion file layout on paper, and (c) product
definitions; (ii) within ten (10) business days of date of this Agreement, all
data necessary to enable Buyer to calculate APY and APYE for the Deposits and
otherwise to comply with Regulation DD, including rate history, back items, no
books and interest calculation; (iii) no later than thirty (30) days prior to
the Closing Date, provide the final data processing pre-conversion file
packages; (iv) on a day-to-day basis subsequent to the preparation of the final
pre-conversion tapes, provide information on any data processing system changes
or additions; (v) as part of the data processing conversion, pay off all accrued
interest on checking and money market accounts (but not CD's or passbooks), send
statements on all accounts as required by Regulation DD, and book all savings
account no-book items; and (vi) by 3:00 p.m. on the Business Date immediately
succeeding the Closing Date, provide two sets of final data processing
conversion file packages.
(e) Seller will remove any supply of money orders, association
checks, traveler's checks, and Seller's negotiable items located at the Branch
Office on the Closing Date.
8.11 Close of Business on Closing Date. On the Closing Date, Seller shall
close the Branch Office for business not later than 3:00 p.m., whereupon
representatives of Buyer shall have access to the Branch Office, under the
supervision of representatives of Seller, to verify Seller's provision to Buyer
of the documents, files and records relating to the Branch Office, including
the Records. Thereafter, Buyer shall continue to have access to such information
and materials as set forth in Article 8.1(a) and 8.8 of this Agreement.
8.12 Supplemental Information; Disclosure Supplements. From time to time
prior to the Closing, Seller will promptly disclose in writing to Buyer any
matter hereafter arising that, if existing, occurring or known at the date of
this Agreement would have been required to be disclosed or that would render
inaccurate any of the representations, warranties or statements set forth in
this Agreement. From time to time prior to the Closing, Seller will promptly
supplement or amend the Schedules delivered in connection with the execution of
this Agreement to reflect any matter that, if existing, occurring or known at
the date of this Agreement, would have been required to be set forth or
described in such Schedule or that is necessary to correct any information in
such Schedule that has been rendered inaccurate thereby.
8.13 Regulatory Matters. Seller shall, from the date hereof through the
Closing Date, keep the Buyer advised with respect to any and all regulatory
matters or proceedings affecting the Branch Office and shall promptly forward to
the Buyer copies of all correspondence, notices,
20
orders, memoranda or other written material received from any regulatory agency
relating to the Branch Office and shall provide the Buyer full access to its
regulatory files to the extent permitted by law.
ARTICLE 9 - CONDITIONS TO CLOSING
9.1 Conditions to the Obligations of Seller. Unless waived in writing by
Seller, the obligations of Seller to consummate the transactions contemplated by
this Agreement are subject to the satisfaction at or prior to the Closing Date
of the following conditions:
(a) Performance. Each of the acts and undertakings and covenants of
Buyer to be performed at or before the Closing pursuant to this Agreement shall
have been duly performed in all material respects.
(b) Representations and Warranties. The representations and
warranties of Buyer contained in Article 5 of this Agreement shall be true,
correct and complete on and as of the Closing Date with the same effect as
though made on and as of the Closing Date; provided, however, that
notwithstanding anything herein to the contrary, this Section 9.1(b) shall be
deemed to have been satisfied even if such representations and warranties are
not true and correct unless the failure of any of the representations and
warranties to be so true and correct would have a material adverse effect upon
the transactions contemplated by this Agreement.
(c) Fairness Opinion. Seller shall have received a written opinion
from its financial advisor, acceptable to Seller and its counsel, that the
consideration to be paid in connection with the transactions described herein is
fair to the Seller from a financial point of view.
(d) Documents. Seller shall have received the following documents
from Buyer:
(i) An executed copy to the Assignment and Assumption Agreement
substantially in the form of Exhibit A hereto.
(ii) Resolutions of Buyer's Board of Directors, certified by its
Secretary or Assistant Secretary, authorizing the execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby.
(iii) A certificate of the Secretary or Assistant Secretary of
Buyer as to the incumbency and signatures of officers.
(iv) A certificate signed by a duly authorized officer of Buyer
stating that the conditions set forth in Article 9.1(a) and (b) of this
Agreement have been fulfilled.
(v) An executed copy of the Transfer Agreement attached hereto
as Exhibit C.
(vi) As to each of the Branch Lease and the Office Lease, an
executed Assignment and Assumption Agreement in the form of Exhibit D.
(vii) Such other instruments and documents as counsel for Seller
may reasonably require as necessary or desirable for transferring to Buyer the
obligation to pay the
21
Deposit liabilities and otherwise perform Seller's obligations that are being
transferred to Buyer pursuant to this Agreement, all in form and substance
reasonably satisfactory to counsel for Seller.
9.2 Conditions to the Obligations of Buyer. Unless waived in writing by
Buyer, the obligations of Buyer to consummate the transactions contemplated by
this Agreement are subject to the satisfaction at or prior to the Closing of
the following conditions:
(a) Performance. Each of the acts and undertakings and covenants of
Seller to be performed at or before the Closing pursuant to this Agreement
shall have been duly performed in all material respects.
(b) Representations and Warranties. The representations and
warranties of Seller contained in Article 6 of this Agreement shall be true,
correct and complete on and as of the Closing Date with the same effect as
though made on and as of the Closing Date provided, however, that
notwithstanding anything herein to the contrary, this Section 9.2(b) shall be
deemed to have been satisfied even if such representations and warranties are
not true and correct unless the failure of any of the representations and
warranties to be so true and correct would have a material adverse effect upon
the value of the Deposits, the Retail Repos or the Assets, the operations of
the Branch Office, or the ability of Seller to perform its obligations under
this Agreement.
(c) No Material Adverse Change. Between the date of this Agreement
and the Closing, no material adverse change shall have occurred with respect to
the Branch Office, the Deposits, the Retail Repos, the Service Contracts, the
Branch Lease, the Office Lease, the Loans to be acquired under the Loan
Purchase Agreement, or the Assets to be acquired hereunder, it being
understood, subject to the rights of Buyer under Section 9.3(a), that an
increase in the allowance for loan and lease losses imposed upon Seller by the
OTS attributable to the Loans to be acquired under the Loan Purchase Agreement
shall not be considered a material adverse change with respect to such Loans.
(d) Fairness Opinion. Buyer shall have received a written opinion
from its financial advisor, acceptable to Buyer and its counsel, that the
consideration to be paid in connection with the transactions described herein
is fair to the Buyer from a financial point of view.
(e) Documents. In addition to the documents described elsewhere in
this Article 9.2, Buyer shall have received the following documents from Seller:
(i) Resolutions of Seller's Board of Directors, certified by its
Secretary or Assistant Secretary, authorizing the execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby.
(ii) A certificate from the Secretary or Assistant Secretary of
Seller as to the incumbency and signatures of officers.
(iii) A certificate signed by a duly authorized officer of
Seller stating that the conditions set forth in Articles 9.2(a), (b) and (c) of
this Agreement have been satisfied.
(iv) An executed Assignment and Assumption Agreement and an
executed ▇▇▇▇ of Sale and Assignment in the forms of Exhibits A and B hereto.
22
(v) A final customer list as set forth in Article 12.8(a) of
this Agreement.
(vi) An affidavit of non-foreign status as required by Section
1445 of the Internal Revenue Code of 1986, as amended.
(vii) The holds and stop payment information described in
Article 12.2 of this Agreement.
(viii) An executed copy of the Transfer Agreement attached
hereto as Exhibit C.
(ix) As to each of Branch Lease and the Office Lease, an
executed Assignment and Assumption Agreement in the form of Exhibit D.
(x) All consents required for the transaction, including
consents to the transfer of the Branch Lease, the Office Lease and Service
Contracts.
(xi) Schedules 6.5 and 6.13, (Deposits, Retail Repos and Account
Loans), updated through the Closing Date and acceptable to Buyer and a Schedule
of the Cash on Hand as of the Closing.
(xii) A Landlord Estoppel Certificate for each of the Branch
Lease and the Office Lease in the form attached hereto as Exhibit E.
(xiii) The Name Rights Agreements, executed by Buyer, Seller,
and Community First Financial Group, Inc., in the form of Exhibits F, G and H.
(xiv) All data files and records relating to the Assets, the
Retail Repos and the Deposits provided, however, that (i) Seller shall not be
required to provide to Buyer records maintained at the Branch that relate
solely to non-Branch matters and (ii) Seller may retain copies of records
relating both to the Assets Retail Repos and Deposits and to non-Branch matters.
(xv) Such other documents or instruments as counsel for Buyer
may reasonably require as necessary or desirable for transferring, assigning
and conveying to Buyer, the Branch Lease, the Office Lease, the Service
Contracts, the Retail Repos, the Deposits and good, marketable and insurable
title to the Assets to be transferred to Buyer pursuant to this Agreement, all
in form and substance reasonably satisfactory to counsel of Buyer.
(f) Schedules. The Schedules and information delivered to Buyer
pursuant to Article 8 hereof shall be acceptable to Buyer in its reasonable
discretion.
9.3 Condition to the Obligations of Seller and Buyer.
(a) Regulatory Approvals. All required licenses, approvals, and
consents of any relevant federal, state, or other regulatory agency shall have
been obtained without any conditions or other requirements reasonably deemed
materially burdensome by either Seller or Buyer, and all necessary conditions
of those licenses, approvals, and consents shall have been fully satisfied, all
in form and substance satisfactory to Buyer. It is understood that a condition
to the approval or consent of the OTS to the transactions described herein
requiring an increase
23
by Buyer in risk-based or tangible capital above 11% and 6% respectively, shall
be considered a condition reasonably deemed materially burdensome by Buyer.
(b) Absence of Proceedings and Litigation. No order shall have been
entered and remain in force at the Closing Date restraining or prohibiting any
of the transactions contemplated by this Agreement in any legal, administrative
or other proceeding, and no action or proceeding shall have been instituted or
threatened on or before the Closing Date seeking to restrain or prohibit the
transactions contemplated by this Agreement.
(c) Closing of Loan Sale Agreement. All conditions to the closing of
the transactions contemplated under the Loan Sale Agreement shall have been
satisfied and the transactions contemplated thereunder shall have closed or
shall close concurrently with the Closing hereunder.
ARTICLE 10 - TERMINATION
10.1 Termination. This Agreement shall terminate and be of no further
force or effect as between the parties, except as to liability for breach of
any duty or obligation arising prior to the date of termination, upon the
occurrence of any of the following conditions:
(a) The expiration of ten (10) Business Days after any governmental
agency shall have denied or refused to grant the approvals or consents required
to be obtained pursuant to this Agreement, unless within said ten (10) Business
Day period Buyer and Seller agree to submit or resubmit an application to, or
appeal the decision of, the regulatory authority that denied or refused to
grant approval thereof,
(b) The expiration of twenty (20) Business Days from the date that
either party has given notice to the other party of such other party's material
breach or misrepresentation of any obligation, warranty, representation, or
covenant in this Agreement; provided, however, that no such termination shall
take effect if within said twenty (20) Business Day period the party so
notified shall have fully and completely corrected the grounds for termination
as specified in such notice; provided further, however, that no such
termination shall take effect if within twenty (20) Business Days of the failure
by the notified party to make such correction within said twenty (20) day
period, the notifying party delivers to the notified party a written election
not to terminate this Agreement notwithstanding such breach or
misrepresentation, and any such election to proceed shall not waive such
party's right to seek damages or other equitable relief,
(c) The failure to consummate the transactions provided for in this
Agreement by December 31, 2001 unless the date is extended by the mutual
written agreement of the parties;
(d) The mutual written consent of the parties to terminate;
(e) By Seller, if any of the conditions set forth in Section 9.1
hereof have not been satisfied by December 31, 2001 (or such earlier time as it
becomes apparent that such condition will not be met), unless the relevant
condition shall have failed to occur as a result of any material act or
omission by Seller; or
(f) By Buyer, if any of the conditions set forth in Section 9.2
hereof have not been satisfied by December 31, 2001 (or such earlier time as it
becomes apparent that such
24
condition will not be met), unless the relevant condition shall have failed to
occur as a result of any material act or omission by Buyer.
Notwithstanding anything to the contrary contained in this Agreement,
neither party hereto shall have the right to terminate this Agreement on account
of its own breach or any immaterial breach by the other party.
ARTICLE 11 - EMPLOYEES
11.1 Employees. Buyer shall offer employment to all of Seller's employees
employed at or in connection with the Branch Office; provided that nothing
herein shall be construed as an employment contract or agreement enforceable by
any employee. All employees of the Branch Office will have their earned
compensation and accrued vacation time compensation paid in full by Seller
through the Closing Date.
11.2 Employee Matters. Buyer and Seller shall follow the procedures
outlined below in dealing with employees of the Branch Office regarding
employment after the Closing Date.
(a) A complete list of all active employees of the Branch Office is
attached hereto as Schedule 11.2.
(b) Nothing in this Article 11 is intended, nor shall it be construed,
to confer any rights or benefits upon any person other than Buyer and Seller
(c) If the transactions contemplated by this Agreement are not
consummated for any reason, Buyer shall not solicit for hire any employee listed
in Schedule 11.2 for a period of five years from the date of termination of this
Agreement, provided, however, that nothing herein shall prohibit Buyer from
publishing general advertisements for employment or hiring persons who respond
to such advertisements.
Buyer shall have the right but not the obligation prior to the Closing to
provide training to any Employees that will become employees of Buyer after the
Closing as set forth in this Section 11.2. Such training shall be at the expense
of Buyer and shall be conducted during normal business hours, or, if the
foregoing is not possible, after business hours at a location other than the
Branches. At the request of Buyer, Seller shall compensate employees, in
accordance with Seller's customary policies and practices, for the Employee's
time spent being trained by Buyer and the Employees' reasonable reimbursable
expense. Seller shall cooperate with Buyer to make such Employees available for
such training prior to the Closing.
11.3 Employee Benefits.
(a) Subject to any limitation or restriction imposed by ERISA, as
amended, or any insurance or benefit plan of Buyer, all employees at the Branch
Office who become employees of Buyer ("Transferred Employees") will retain the
initial date of service as calculated by Seller solely for purposes of
determining seniority credit for determination of eligibility for retirement and
vacation benefits (provided however, that vacation days for Transferred
Employees will be prorated as of the Closing Date on the basis of a 365-day
year).
(b) Buyer is not assuming, nor shall it have responsibility for the
continuation of, any liabilities under or in connection with:
25
(i) any employment contract, collective bargaining agreement,
plan or arrangement providing for insurance coverage or for deferred
compensation, bonuses, stock options, or other forms of incentive compensation
or post-retirement compensation or benefits, written or implied, which is
entered into or maintained, as the case may be, by Seller; or
(ii) any "employee benefit plan" as defined in Section 3(3) of
ERISA as maintained, administered, or contributed to by Seller and covering any
employees.
(c) Transferred Employees shall be entitled to participate in the
benefit plans and arrangements of Buyer subject to all of the terms and
conditions of such plans or arrangements and Buyer agrees, to the extent
permissible, to waive any waiting period for participation in Buyer's health
insurance plan.
11.4 Employee Documents. Within 15 Business Days of the date of this
Agreement, Seller will deliver to Buyer copies of its corporate benefit
information. Buyer also will be given access to employees at the Branch Office
and, upon receipt of a written consent and release from an employee, will be
delivered copies of such employee's personnel files including, but not limited
to, copies of each written employment agreement and a written description of the
terms of oral employment agreements for such employee, if any. Upon receipt of a
written consent and release from an employee, Buyer shall have the right to
review all of that employee's personnel file.
11.5 Compliance with COBRA. Notwithstanding anything herein to the
contrary, to the extent required by the Consolidated Omnibus Budget
Reconciliation Act of 1985, as amended ("COBRA") or applicable state law, any
employee of Seller terminated by Seller as a result of this transaction shall be
entitled to continued coverage that shall be administered by Seller and the
required notices concerning this coverage will be provided by Seller.
ARTICLE 12 - OTHER AGREEMENTS
12.1 Returned Items. Any items that were credited for deposit to an
account at the Branch Office prior to the Closing Date and are returned unpaid
("Returned Items") within ten (10) Business Days after the Closing Date will be
handled in the following manner:
(a) If Buyer's bank account is charged for the Returned Item, Buyer
will use its best efforts to obtain reimbursement from the account to which, or
from the party to whom, the Returned Item was credited. If there are sufficient
funds in the account to which such Returned Item was credited or any other
accounts on deposit at the Branch Office or at any other branch office of Buyer
standing in the name of the party liable for such item, Buyer will debit any or
all of such accounts an amount equal in the aggregate to the Returned Item. If
those accounts do not contain funds sufficient to reimburse Buyer fully (for
reasons other than Buyer's breach of Article 12.2 of this Agreement), Seller
will, upon notice from Buyer immediately repay to Buyer the amount of the
Returned Item and Buyer will assign the Item to Seller for collection.
(b) If Seller's bank account is charged for the Returned Item and if
there are sufficient funds in the account to which such Returned Item was
credited or any other accounts on deposit at the Branch Office or at any other
branch office of Buyer standing in the name of the party liable for such item,
Buyer will debit any or all of such accounts an amount equal in the aggregate to
such Returned Item and shall repay that amount to Seller. If there are not
sufficient funds in the accounts (for reasons other than Buyer's breach of
Article 12.2 of this
26
Agreement), Buyer will have no obligation to repay Seller an amount in excess of
what is in the accounts unless and until Buyer obtains reimbursement from the
party liable for such Returned Item.
(c) If Buyer receives the Returned Item more than (10) days from the
date funds were credited, and there are insufficient funds in the account
credited, Buyer shall notify the Seller before 12:00 noon on the day the
Returned Items are received, and Seller, upon notice from the Buyer,
immediately will return the item for late reclamation.
12.2 Holds and Stop Payment Orders. Holds and stop payment orders that have
been placed by Seller on particular accounts or on individual checks, drafts or
other instruments before the Closing Date will be continued by Buyer under the
same terms after the Closing Date. Seller will deliver to Buyer at the Closing
a complete schedule of such holds and stop payment orders and documentation
relating to the placing thereof.
12.3 ACH Items. Seller and Buyer will use their best efforts to transfer
all ACH arrangements to Buyer as soon as possible after the Closing Date. At
least fifteen (15) Business Days prior to the Closing Date, Seller will deliver
to Buyer (i) a listing of account numbers for all accounts being assumed by
Buyer subject to ACH Items and Recurring Debit arrangements, and (ii) all other
records and information necessary for Buyer to administer such arrangements.
Buyer shall continue such ACH arrangements and such Recurring Debit
arrangements as are originated and administered by third parties and for which
Buyer need act only as processor; Buyer shall have no obligation to continue
Recurring Debit arrangements that were originated or administered by Seller,
and Seller, if so directed by Buyer, shall terminate such arrangements on or
prior to the Closing Date. After the Closing Date Seller will use its best
efforts by 11:00 a.m. on each Business Day, to (1) telecopy or deliver to
Buyer, at such address as Buyer may from time to time designate, a detailed
listing of all debits and credits of ACH Items or Recurring Debit activity
affecting the Deposits during the prior Business Day, and (ii) remit by wire
transfer to Buyer all ACH Item funds then known by Seller that are intended for
Deposit accounts being transferred to Buyer; provided, however, that Seller's
obligation to deliver such summaries of its expenses and to forward such ACH
Items shall continue only until one hundred twenty (120) days after the Closing
Date. Thereafter, Seller will return all ACH Items to the paying party. All
amounts due and not paid by 11:00 a.m. on the date payment is due shall accrue
interest at a rate equal to the Fed Funds Rate as of the date such payment is
due.
12.4 Checking Accounts. As soon as possible but in no case later than
thirty (30) business days following the Closing Date, Buyer, at its sole
expense, will provide holders of accounts that may be accessed by checks, new
checks MICR encoded with Buyer's routing and transit numbers and the Buyer
customer identification number. Seller will pass through to Buyer checks
received by it drawn on accounts transferred to Buyer pursuant to this
Agreement for a period of sixty (60) days following the Closing Date. Buyer
accepts full responsibility to either pay the items or return them in accordance
with the customer agreement and the State Uniform Commercial Code. During the
sixty (60) day period, Seller will give Buyer a daily accounting of debits to
its clearing account. Buyer shall immediately reimburse Seller by wire for such
debits.
For a period of sixty (60) days following the Closing Date, Seller, at its
sole expense, will outsort all Branch Office checks (inclearings) and prepare
them to be couriered to Buyer at a location designated by Buyer. Buyer will
arrange and pay for all couriers necessary in regard to check processing
activity during this period. Buyer will settle for the gross dollar amount of
outsorted Branch Office checks by wire transfer on the day that Buyer receives
the daily
27
accounting of debits from Seller and as long as the information provided by
Seller is accurate and received generally before 11;00 a.m., Buyer will pay
Seller interest on that amount from and including the day that Seller's bank is
debited for such items to and not including the date Seller receives
reimbursement from Buyer at a rate equal to the Fed Funds Rate as of the date
Seller's bank is debited. For a period of sixty (60) days after the Closing
Date, Seller's data processing center will prepare a tape of the inclearings
for the Branch Office in a format acceptable to Buyer and courier the tape and
cash letter nightly to Buyer's service bureau and deliver the checks promptly
thereafter. All rejected checks written on accounts transferred to Buyer
pursuant to this Agreement are to be the responsibility of the Buyer. After the
sixty (60) day period, Seller may return such items marked "Refer to Maker."
Buyer shall reimburse Seller for all its reasonable costs incurred in taking
any additional action as provided herein after sixty (60) days at Buyer's
request or with Buyer's consent not to be unreasonably withheld.
12.5 Withholding. Seller shall deliver to Buyer (i) within three (3)
Business Days after the Closing Date a list of all "B" (TINs do not match) and
"C" (under reporting/IRS imposed withholding) notices from the IRS imposing
withholding restrictions, and (ii) for a period of one hundred twenty (120)
days after the Closing Date, all notices received by Seller from the IRS
releasing withholding restrictions on Deposit accounts transferred to Buyer
pursuant to this Agreement. Any amounts required by any governmental agency to
be withheld from any of the Deposits or Retail Repos (the "Withholding
Obligations") will be handled in the following manner:
(a) Any Withholding Obligations required to be remitted to the
appropriate governmental agency prior to the Closing Date will be withheld and
remitted by Seller and any other sums withheld by Seller pursuant to
Withholding Obligations prior to the Closing Date shall also be remitted by
Seller to the appropriate governmental agency on or prior to the time they are
due.
(b) Any Withholding Obligations required to be remitted to the
appropriate governmental agency on or after the Closing Date with respect to
Withholding Obligations after the Closing Date and not withheld by Seller as
set forth in Article 12.5(a) above will be remitted by Buyer.
(c) Any penalties described on "B" notices from the IRS or any
similar penalties that relate to Deposit accounts opened by Seller prior to the
Closing Date will be paid by Seller promptly upon receipt of the notice
providing such penalty assessment resulted from Seller's acts, policies or
omissions.
12.6 Retirement Accounts. Seller will provide Buyer with the proper trust
documents for any Retirement Accounts assumed by Buyer under Article 2.2 of
this Agreement. Seller shall be responsible for all federal and state income
tax reporting of Retirement Accounts for the period of time during the calendar
year 2001 prior to the Closing Date. Buyer shall be responsible for all federal
and state income tax reporting for the period of time during the calendar year
2001 from and after the Closing Date.
12.7 Interest Reporting. Seller shall report from January 1, 2001 through
the Closing Date all interest credited to, interest withheld from, and early
withdrawal penalties charged to the Deposits that are assumed by Buyer under
this Agreement. Buyer shall report from the Closing Date through the end of the
calendar year all interest credited to, interest withheld from, and early
withdrawal penalties charged to the Deposits assumed by Buyer. Said reports
shall be made to the holders of these accounts and to the applicable federal
and state regulatory
28
agencies. On or before fifteen days after Closing, Seller will send statements
to all customers covering the period from January 1, 2001 through the Closing
Date, which include all no book transactions unless otherwise directed by the
Buyer prior to ten days after Closing. Copies of these statements will be
delivered to Buyer promptly after sending them to the customers.
12.8 Notices to Depositors.
(a) Seller shall provide Buyer an intermediate customer list of the
accounts to be assumed by Buyer pursuant to this Agreement, together with a
tape thereof, as of month-end prior to the scheduled Seller mailing referred to
in Article 12.8(b) below. Seller shall provide Buyer a final customer list of
the Deposits transferred as of the Closing Date pursuant to this Agreement with
the data processing tapes.
(b) After receipt of all regulatory approvals and, with the concurrence
of the OTS, at least fifteen (15) Business Days before the Closing Date, Seller
shall mail notification to the holders of the Deposits to be assumed that,
subject to closing requirements, Buyer will be assuming the liability for the
Deposits. Such notification(s) shall include notice that Buyer will not continue
services to depositors provided by Seller but not routinely offered by Buyer.
The notification(s) will be based on the list referred to in Article 12.8(a)
above and a listing maintained at the Branch Office of the new accounts opened
since the date of said list. Seller shall provide Buyer with the documentation
of said listing up to the date of Seller's mailing. Buyer shall send
notification(s) to the same holders either together with Seller's mailing, in
which case Buyer and Seller shall equally share the costs of such mailing and
Buyer shall not delay the timing of such mailing, or within three (3) days after
Seller's notification setting out the details of its administration of the
assumed accounts. Each party shall obtain the approval of the other on its
notification letter(s). Except as otherwise provided herein, each party will be
responsible for the cost of its own mailing. After such notification, Buyer may,
at its own expense, send brochures, bulletins and other communications to
depositors and other customers concerning the business and operations of Buyer.
(c) At least fifteen (15) Business Days before the Closing Date,
Seller will prominently and continuously display a sign in the Branch Office
stating that the Branch Office will be closed at 3:00 p.m. on the Closing Date.
(d) After the effective date of any mailing regarding account
services by Buyer, Buyer will provide copies of such materials to Seller for
distribution at the Branch Office at the time new services are acquired.
12.9 Card Processing and Overdraft Coverage.
(a) Seller will provide Buyer with a list of ATM card holders and a
magnetic tape no later than 30 days prior to the Closing Date; provided,
however, Buyer shall not use such list to contact the card holders prior to
regulatory approval of the transactions contemplated by this Agreement.
(b) All customers at the Branch Office with overdraft coverage shall
be provided similar overdraft coverage, if available, by Buyer after the
Closing. Buyer shall purchase at the Closing any overdraft balances as of the
Closing Date.
29
12.10 Reimbursements.
(a) For a period of one hundred twenty (120) days after the Closing
Date, Seller will promptly reimburse Buyer for (i) any amount Buyer refunds to
customers of the Branch Office in interest adjustments after the Closing Date
arising out of errors occurring prior to the Closing Date, and (ii) any amount
that Buyer is required to refund to customers of the Branch Office after the
Closing Date as a result of the cancellation of services formerly provided by
Seller, in accordance with a schedule of service charges, for which such
customers had prepaid Seller prior to the Closing Date, provided Buyer does not
offer those services as of the date of this Agreement.
(b) For a period of 120 days after the Closing Date, Seller will
promptly reimburse Buyer for any and all amounts paid by Buyer that are in
excess of a customer's deposit balance (including line of credit) that were
made with a debit card or check guarantee card prior to the Closing Date,
provided that Buyer uses its reasonable best efforts to consult Seller before
paying any such items.
12.11 Taxpayer Information. Seller shall deliver to Buyer within three (3)
Business Days after the Closing Date: (i) TINs (or record of appropriate
exemption) for all holders of Deposit accounts or Retail Repos acquired by
Buyer pursuant to this Agreement; and (ii) all other information in Seller's
possession or reasonably available to Seller required by applicable law to be
provided to the IRS with respect to the Assets and Deposit accounts transferred
pursuant to this Agreement and the holders thereof, except for such information
that Seller will report on pursuant to Articles 12.5 and 12.7 of this Agreement
(collectively, the "Taxpayer Information"). Seller hereby certifies that such
information, when delivered, shall accurately reflect the information provided
by Seller's customers. Seller shall, according to the terms of Article 13.2 of
this Agreement, indemnify, hold harmless and defend Buyer, Buyer's subsidiaries
and Buyer's Affiliates from and against any and all damages, losses,
liabilities, costs, claims, obligations, or expenses, including legal fees and
expenses and fines and penalties arising from or incurred or imposed in
connection with any inaccuracy, act, or omission by Seller in connection with
the collection, recording, filing with appropriate governmental agencies, or
delivery to Buyer of the Taxpayer Information.
ARTICLE 13 - GENERAL PROVISIONS
13.1 Survival. All representations and warranties made by the parties to
this Agreement shall expire on the Closing Date.
13.2 Broker's Fees. Each of the parties represents and warrants to the
other that it has dealt with no broker or finder in connection with any of the
transactions contemplated by this Agreement, and that no action has been taken
that would give rise to any valid claim for brokerage commission, finder's fee
or other like commission. Seller and Buyer each undertake to indemnify and hold
harmless the other against any loss, liability, damage, cost, claim, or expense
incurred by reason of any brokerage commission, or finder's fee alleged to be
payable because of any act, omission or statement of the indemnifying party.
13.3 Publicity and Notices. The form of notice of a proposed transaction
required by regulation will be published no earlier than three (3) calendar
days before and no later than three (3) calendar days after the filing of the
application with regulatory authorities. The cost of such publications will be
the shared equally by Seller and Buyer. The parties shall consult with
30
one another prior to, and provide a copy to the other after issuance of, any
press release or other public announcements about the transaction contemplated
herein.
13.4 Attorneys' Fees. Each party shall bear the cost of its own
attorney's fees incurred in connection with the preparation of this Agreement
and consummation of the transactions described herein. Notwithstanding the
foregoing, in any action between the parties seeking enforcement of any of the
terms and provisions of this Agreement or in connection with any of the
property described herein, the prevailing party in such action shall be
awarded, in addition to damage, injunctive or other relief, its reasonable
costs and expenses, not limited to taxable costs, and reasonable attorney's
fees and expenses as determined by the court.
13.5 Regulatory Fees. Each party shall bear the cost of its own
regulatory application fees incurred in connection with this Agreement.
13.6 No Third Party Beneficiaries. This Agreement is not intended nor
should it be construed to create any express or implied rights in any third
parties.
13.7 Notices. All notices, requests, demands, and other communication
given or required to be given under this Agreement shall be in writing, duly
addressed to the parties as follows:
To Seller: ▇▇▇▇▇▇▇▇▇▇ Bank, FSB
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chief Financial Officer
With a copy to: ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇, LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
To Buyer: Los Padres Bank, FSB
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
President
With copy to: Manatt, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Any such notice sent by registered or certified mail, return receipt
requested, shall be deemed to have been duly given and received forty-eight
(48) hours after the same is so
31
addressed and mailed with postage prepaid. Notice sent by any other manner
shall be effective only upon actual receipt thereof.
13.8 Assignment. This Agreement may not be assigned by either party
without the prior written consent of the other party, and any attempted
assignment in violation of this section is void.
13.9 Successors and Assigns. This Agreement shall be binding upon the
parties hereto and their respective heirs, successors or representatives.
13.10 Governing Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of
California.
13.11 Entire Agreement. This Agreement, together with the Schedules
and Exhibits hereto, contains all of the agreements of the parties to it with
respect to the matters contained herein and no prior or contemporaneous
agreement or understanding, oral or written, pertaining to any such matters
shall be effective for any purpose. No provision of this Agreement may be
amended or added to except by an agreement in writing signed by the parties
hereto or their respective successors in interest and expressly stating that it
is an amendment of this Agreement.
13.12 Headings. The headings of this Agreement are for purposes of
reference only and shall not limit or define the meaning of the provisions of
this Agreement.
13.13 Severability. If any paragraph, section, sentence, clause, or
phrase contained in this Agreement shall become illegal, null or void, or
against public policy, for any reason, or shall be held by any court of
competent jurisdiction to be illegal, null or void, or against public policy,
the remaining paragraphs, sections, sentences, clauses, or phrases contained in
this Agreement shall not be affected thereby.
13.14 Waiver. The waiver of any breach of any provision under this
Agreement by any party hereto shall not be deemed to be a waiver of any
preceding or subsequent breach under this Agreement.
13.15 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original but all of which shall
constitute one and the same instrument.
13.16 Force Majeure. No party shall be deemed to have breached this
Agreement solely by reason of delay or failure in performance resulting from a
natural disaster or other act of God. The parties agree to cooperate in an
attempt to overcome such a natural disaster or other act of God and consummate
the transactions contemplated by this Agreement, but if either party reasonably
believes that its interests would be materially and adversely affected by
proceeding, such party shall be excused from any further performance of its
obligations and undertakings under this Agreement.
13.17 Schedules. All information set forth in the Schedules hereto
shall be deemed a representation and warranty of Seller as to the accuracy and
completeness of such information.
13.18 Knowledge. Whenever any statement in this Agreement or in any
list, certificate or other document delivered to any party pursuant to this
Agreement is made "to the
32
knowledge" or "to the best knowledge" of any party, such knowledge shall mean
facts and other information that an officer of such party knows or reasonably
should know.
IN WITNESS WHEREOF, the parties hereto have duly authorized and executed
this Agreement as of the date first above written.
▇▇▇▇▇▇▇▇▇▇ BANK, FSB
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: President
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chief Financial Officer
LOS PADRES BANK, FSB
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, JR
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Jr
Title: President
33
EXHIBIT A
ASSIGNMENT AND ASSUMPTION AGREEMENT
This Assignment and Assumption Agreement dated , 2001,
("Assignment Agreement") is executed pursuant to and subject to the terms and
conditions of the
Purchase and Assumption Agreement dated May 30, 2001 (the
"Agreement") by and between Los Padres Bank, FSB, a federally chartered savings
association ("Buyer"), and ▇▇▇▇▇▇▇▇▇▇ Bank, FSB, a federally chartered savings
association ("Seller"). Capitalized terms not otherwise defined herein will
have the meanings assigned to them in the Agreement.
For value received, the sufficiency of which is hereby acknowledged, it
hereby is agreed:
1. Seller hereby assigns, transfers and conveys to Buyer all of its rights
and interests in and to the Deposits and Retail Repos. The Deposits and Retail
Repos hereby assumed are described in Schedule 6.5 to the Agreement, as revised
and updated as of this Assignment Agreement. Buyer may administer the Deposit
accounts and Retail Repos acquired from Seller pursuant to Buyer's own internal
policies and procedures, and Buyer shall have no liability or obligation to
maintain in effect the policies and procedures of Seller governing
administration of the Deposit accounts after the Closing Date.
2. Seller hereby assigns, transfers and conveys to Buyer all of its rights
and interests under the Service Contracts that are identified on Schedule 6.20
to the Agreement, a copy of which is attached hereto.
3. Seller represents that it has the full right, power and authority to
assign, transfer and convey such Deposits, Retail Repos and Service Contracts
to Buyer.
4. Buyer hereby accepts the foregoing assignment and assumes and agrees to
perform all of the duties and obligations to be performed by Seller arising
subsequent to the date hereof under the terms of the Service Contracts, the
Deposits, and the Retail Repos and Buyer further agrees to indemnify and hold
Seller harmless from any liability or claim for performance or non-performance
by Buyer of such duties and obligations.
5. Seller represents that it has performed all of its duties and
obligations under the Deposits, Retail Repos and Service Contracts existing on
or prior to the date hereof and Seller for itself, and its successors and
assigns, expressly acknowledges its responsibility for all such duties and
obligations existing on or prior to the date hereof and agrees to indemnify and
hold Buyer harmless from any liability or claims for performance or
non-performance by Seller of such duties and obligations.
6. The Deposits, Retail Repos and Service Contracts herein transferred and
assigned will be construed to be in addition to any other assignment of
property or rights made by Seller to Buyer on this date, and the effect to be
given to this instrument will be cumulative with and not in limitation of any
other rights granted by Seller to Buyer pursuant to the Agreement or otherwise.
7. Seller hereby constitutes and appoints Buyer, its successors and
assigns, the true and lawful attorney of Seller, with full power of
substitution, in the name and stead of Seller, but on behalf of and for the
benefit of Buyer, its successors and assigns, to demand and receive any and all
of the Deposits or Retail Repos that are hereby assigned, transferred, conveyed
and
A-1
delivered to Buyer, and from time to time to institute and prosecute actions,
suits and demands in the name of Seller, or otherwise, for the benefit of Buyer,
its successors or assigns, which Buyer, its successors or assigns, may deem
property in order to collect or reduce to possession any of such Deposits or
Retail Repos or to enforce any claim or right of any kind in respect thereof and
to do all acts and things in relation to such Deposits or Retail Repos that
Buyer, its successors or assigns, will deem desirable, Seller hereby declaring
that the foregoing powers are coupled with an interest and are not revocable and
will not be revoked by Seller.
8. Seller hereby agrees that it, from time to time, at the reasonable
request of Buyer and without further consideration, will execute and deliver
such further instruments of conveyance, transfer and assignment and will take
such other action as Buyer reasonably may request in order more effectively to
convey and transfer to Buyer the Deposits, Retail Repos and Service Contracts
transferred hereunder.
9. This instrument will be binding upon, and inure to the benefit of the
parties hereto and their respective successors and assigns.
IN WITNESS WHEREOF, Seller and Buyer have caused this Assignment Agreement
to be signed on their respective behalfs by their duly authorized offices and
their respective corporate seals to be hereunto affixed, all as of the day and
year first above written.
▇▇▇▇▇▇▇▇▇▇ BANK, FSB
ATTEST:
By:__________________________________ By:__________________________________
Name:________________________________ Name:________________________________
Title:_______________________________ Title:_______________________________
LOS PADRES BANK, FSB
ATTEST:
By:__________________________________ By:__________________________________
Name:________________________________ Name:________________________________
Title:_______________________________ Title:_______________________________
A-2
EXHIBIT B
▇▇▇▇ OF SALE AND ASSIGNMENT
---------------------------
For good and valuable consideration, the receipt and adequacy of which is
hereby acknowledged, ▇▇▇▇▇▇▇▇▇▇ Bank, FSB, a federally chartered savings
association ("SELLER"), does hereby assign, grant, sell, transfer, and deliver
to Los Padres Bank, FSB, a federally chartered savings association ("BUYER"), in
accordance with that certain
Purchase and Assumption Agreement dated May 30,
2001, by and between SELLER and BUYER (the "Agreement"), all right, title and
interest in and to all Assets, as such capitalized term is defined in the
Agreement.
SELLER hereby represents and warrants to BUYER that SELLER is the absolute
owner of said Assets, that said Assets are free and clear of all liens, charges,
encumbrances, options, agreements or restrictions of any kind and that SELLER
has full right, power and authority to sell said Assets and to make this ▇▇▇▇ of
sale.
SELLER hereby covenants and agrees to execute and deliver to BUYER or its
assigns such other and further agreements, assignments, documents or instruments
of conveyance, assignment and transfer, and to do such other things and to take
such actions, supplemental or confirmatory, as may reasonably be requested by
BUYER or its assigns for the purpose of or in connection with (i) the transfer
to BUYER of such good and marketable title to the assets transferred, assigned
and conveyed hereunder, (ii) otherwise to evidence such transfer, assignment or
conveyance to BUYER, or (iii) otherwise to fulfill and discharge SELLER's
obligations under the Agreement.
SELLER acknowledges that BUYER does not assume and shall have no liability
for any debts, liabilities or obligations of SELLER of any kind whatsoever
except as specifically set forth in the Agreement or in any other writing
executed by BUYER.
This ▇▇▇▇ of Sale and Assignment has been duly executed by SELLER as of
_____ _.m. on the ______ day of _________, 2001.
▇▇▇▇▇▇▇▇▇▇ BANK, FSB
By:__________________________________
Name:________________________________
Title:_______________________________
B-1
EXHIBIT C
RETIREMENT ACCOUNT TRANSFER AGREEMENT
This Agreement (the "Transfer Agreement") is made between Los Padres Bank,
FSB, a federally chartered savings association ("Successor Trustee"), and
▇▇▇▇▇▇▇▇▇▇ Bank, FSB, a federally chartered savings association ("Resigning
Trustee"). Capitalized terms not defined herein shall have the meanings assigned
to them in the Agreement (defined below).
RECITALS
A. Resigning Trustee has served as trustee with respect to certain
retirement accounts (collectively, the "Plans"), included within the
Purchase
and Assumption Agreement dated May 30, 2001 by and between Resigning Trustee and
Successor Trustee (the "Agreement"), the funds of which are domiciled at the
Branch Office (as defined in the Agreement).
B. Pursuant to the Agreement, Successor Trustee is acquiring from
Resigning Trustee certain Deposits, including Deposits that constitute funds of
the Plans.
C. In connection with the acquisition of such Deposits Successor Trustee
will succeed to the trusteeship of the Plans and become successor trustee in the
place of Resigning Trustee.
D. The parties deem it necessary and advisable to execute this Transfer
Agreement in order to describe the terms of transfer of the Plans and the duties
and responsibilities of the parties with regard thereto.
E. Execution of this Transfer Agreement is an element of the
consideration for the execution by the parties of the Agreement and a condition
to closing thereunder.
TRANSFER AGREEMENT
Now, therefore, in consideration of premises stated above, the mutual
promises contained herein and in the Agreement, and other good and valuable
consideration, the receipt and sufficiency of which the parties hereby
acknowledge, the parties hereby agree as follows:
1. As of the close of business on the Closing Date, or such other date
and time as the parties may fix (the "Transfer Date"), the Resigning Trustee
shall assign, transfer and deliver to the Successor Trustee as set forth in the
Agreement, funds and Deposits, domiciled in Resigning Trustee's Branch Office.
2. At least five (5) Business Days (as defined in the Agreement) prior to
the Transfer Date Resigning Trustee will notify participants of its Plans of its
resignation as trustee and appointment of Purchaser as Successor Trustee;
Purchaser shall follow with a letter to participants of such Plans accepting the
successor trusteeship.
3. After the Transfer Date, the Successor Trustee shall not use any
advertising, materials, plan documents, or any other printed matter referring to
the Resigning Trustees trustee of any Plans.
C-1
4. The Resigning Trustee shall prepare and file all required year-end
reports for all activity under the Plans transferred to Successor Trustee,
including but not limited to IRS form 1099R and IRS form 5498 for the portion of
the calendar year 2001 to and including the Transfer Date. The Successor
Trustee shall prepare and file such reports, where applicable, for the balance
of the calendar year 2001 and thereafter, so long as the Successor Trustee
remains as the trustee. It is further agreed that the Resigning Trustee and
Successor Trustee will each report their portion of withholding for such Plans
to the appropriate state and federal agencies.
5. In the event that the Resigning Trustee receives after the Transfer
Date, any documents, correspondence or other written materials relating to the
Plans transferred to Successor Trustee, the Resigning Trustee will promptly
forward such items to the Successor Trustee with a written explanation of such
items. The Resigning Trustee agrees to answer reasonable inquiries from the
Successor Trustee pertaining to the Plans and any pending transactions or items
received after the Transfer Date.
6. No later than six (6) Business Days following the Transfer Date the
Resigning Trustee shall deliver to the Successor Trustee all original or
certified copies of (i) all documents executed by the depositors of the Plans
to be transferred to Successor Trustee, including but not limited to all
adoption agreements, membership agreements, plan amendments, and beneficiary
forms, and (ii) all other records and information necessary to allow the
Successor Trustee to administer and conduct business with respect to such Plans.
7. No later than the Transfer Date, the Resigning Trustee agrees to
provide the Successor Trustee with a complete and up-to-date listing of:
(a) any and all participants of the Plans transferred to Successor
Trustee that have reached 70 1/2 by or during 2001, and prior year balances
required for calculations of mandatory distributions;
(b) any and all Plans at Resigning Trustee's Branches receiving
periodic distributions, the method of calculation for arriving at such amounts
distributed, and copies of the approved distribution forms;
(c) any and all Plans on the Resigning Trustee's system on deposit
at the Branch Office;
(d) any and all Plans at the Resigning Trustee's Branch Office
currently not exempted from either federal tax withholding or state
withholding, or both, and current filing status for each participant where
withholding may apply; and
(e) any and all Plans at Resigning Trustee's Branch Office where the
Plan participant has died, the date of death (if known) and a legible copy of
the death certificate when available.
8. The Resigning Trustee agrees that, prior to the Transfer Date, it
shall make any and all of the following payments or take any and all of the
following actions, each as required to be made or taken prior to the Transfer
Date:
(a) distribute all scheduled 2001 mandatory minimum distribution
payments;
(b) complete all scheduled or pending transfers; and
C-2
(c) distribute all scheduled periodic and non-periodic distributions.
9. The Successor Trustee agrees to indemnify and hold harmless the
Resigning Trustee from (i) any and all losses, costs (including reasonable
attorney's fees), expenses, damages, liabilities, or penalties of every
kind whatsoever that the Resigning Trustee, its affiliates, successors,
directors, officers, employees, or agents may incur as a result of the
Successor Trustee's failure to perform its obligations under this Transfer
Agreement; and (ii) any penalties, taxes or other liabilities that might arise
in the event any act or omission by the Successor Trustee results in
disqualification of any Plan acquired from the Resigning Trustee.
10. The Resigning Trustee agrees to indemnify and hold harmless the
Successor Trustee, its affiliates and successors from any and all losses, costs
(including reasonable attorney's fees), expenses, damages, liabilities, or
penalties of every kind whatsoever that the Successor Trustee, its affiliates,
successors, directors, officers, employees, or agents may incur as a result of
any act, omission, or breach of fiduciary obligation by the Resigning Trustee
prior to or on the Transfer Date or in fulfillment of its obligations under this
Transfer Agreement.
11. If any action or proceeding is brought by either party against the
other pertaining to or arising out of this Transfer Agreement, the final
prevailing party shall be entitled to recover all costs and expenses, including
reasonable attorney fee's, incurred on account of such action or proceeding.
12. This Transfer Agreement may be executed in any number of
counterparts, each of which shall be an original but all of which constitute
one and the same instrument.
Executed this _____ day of ______________, 2001.
▇▇▇▇▇▇▇▇▇▇ BANK, FSB LOS PADRES BANK, FSB
By:________________________ By:_________________________________
Name:______________________ Name:_______________________________
Title:_____________________ Title:______________________________
C-3
EXHIBIT D
ASSIGNMENT AND ASSUMPTION OF LEASE
THIS ASSIGNMENT AND ASSUMPTION OF LEASE (this "Assignment") is made
__________________, 2001, by and between ▇▇▇▇▇▇▇▇▇▇ BANK, FSB, a federally
chartered savings association ("Assignor"), and LOS PADRES BANK, FSB, a
federally chartered savings association ("Assignee").
RECITALS
A. Assignor is presently tenant under that certain lease (the "Lease")
between _______________________ as landlord and _____________________ as
tenant, dated 199__ covering the premises known as _________________, a true,
correct and complete copy of which is attached hereto as Exhibit A.
B. Pursuant to the terms of a
Purchase and Assumption Agreement between
Assignor, as Seller, and Assignee, as Buyer, made and entered into as of May
30, 2001 (the "Agreement"), Assignor is assigning to Assignee and Assignee is
acquiring all of Assignor's interest in, to and under the Lease.
NOW, THEREFORE, for good and valuable consideration, Assignor and Assignee
agree:
AGREEMENT
1. Assignment. Assignor hereby assigns, conveys, transfers and sets over unto
Assignee all of Assignor's right, title and interest in, to and under the
Lease and all claims and causes of action thereunder, including but not
limited to its rights in any and all security deposits. Assignor hereby
covenants that it has performed all of its obligations under the Lease that
are to be performed on or prior to the date hereof.
2. Assumption. Assignee hereby assumes and agrees to perform, fulfill and comply
with all covenants and obligations to be performed, fulfilled or complied
with by the tenant under the Lease arising from and after the Closing Date
(as defined in the Agreement) and to pay the rental in the Lease provided
beginning on the Closing Date.
3. Assignee's Indemnification of Assignor. Assignee shall defend and does hereby
indemnify Assignor against, and agrees to hold Assignor harmless of and from,
all obligations, actions, suits, proceedings or claims, and all costs and
expenses, including but not limited to reasonable attorneys' fees, incurred
in connection with the Lease based upon or arising out of any breach
occurring or alleged to have occurred subsequent to the Closing Date.
4. Assignor's Indemnification of Assignee. Assignor shall defend and does hereby
indemnify Assignee against, and agrees to hold Assignee harmless of and from,
all liability, obligations, actions, suits, proceedings or claims, and all
costs and expenses, including but not limited to reasonable attorneys' fees,
incurred in connection with the Lease based upon or, arising out of any
breach or alleged breach of the Lease by Assignor occurring or alleged to
have occurred on or prior to the Closing Date.
D-1
5. Binding Effect. This Assignment shall inure to the benefit of and shall be
binding upon the parties and their respective successors and assigns.
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment.
ASSIGNOR:
▇▇▇▇▇▇▇▇▇▇ BANK, FSB
By: ____________________________________
Name: __________________________________
Title: _________________________________
ASSIGNEE:
LOS PADRES BANK, FSB
By: ____________________________________
Name: __________________________________
Title: _________________________________
D-2
EXHIBIT E
LANDLORD ESTOPPEL CERTIFICATE
THIS ESTOPPEL CERTIFICATE ("Estoppel Certificate") is made as of the
day of , 2001, by , the landlord
("Landlord") under a lease dated as of , between Landlord and
▇▇▇▇▇▇▇▇▇▇ Bank, FSB ("Tenant"), as amended or modified (the "Lease"), under
which Landlord leases to Tenant certain real property at
(hereinafter "Premises").
The Landlord hereby consents to the assignment by Tenant to Los Padres
Bank, FSB, a federally chartered savings association, of Tenant's interest in
the Lease. The Landlord hereby certifies to Los Padres Bank, FSB as follows:
1. A true and correct copy of the Lease (including all amendments,
riders and exhibits thereto, if any) is attached hereto as Exhibit A, is in
full force and effect, and has not been modified or amended except by those
instruments described on Exhibit A attached hereto.
2. There are no oral or written agreements, understandings or the like
between the undersigned and the Tenant relating to the Premises except for the
Lease.
3. The undersigned confirms that the term of the Lease commenced
on , and terminates (exclusive of unexercised renewal options, if
any) on , 200 , in accordance with the terms of the Lease.
4. Under the Lease, the Tenant presently is obligated to pay base rent
in the amount of $ per month. Tenant has no obligation to pay any
additional rent.
5. All rent and other charges, if any, due under the Lease through and
including the date hereof have been paid. Landlord specifically acknowledges
that rent has been paid through . There exists no default nor
state of facts that, with notice, lapse of time, or both, could ripen into a
default on the part of either the Landlord or the Tenant under the Lease. The
undersigned has no claim or action against the Tenant under the Lease, nor has
any act occurred that, with notice, lapse of time, or both, could result in such
a claim or action.
6. The address for notices to be sent to the Landlord is as set forth in
the Lease or, if not, the new address is: .
.
7. A security deposit under the Lease is held by the Landlord in the
amount of $ .
E-1
IN WITNESS WHEREOF, Landlord duly has executed this Estoppel Certificate
as of the day of , 2001.
LANDLORD:
-------------------------------------
By: ---------------------------------
Name: -------------------------------
Title: ------------------------------
E-2