EXHIBIT 2.4
PURCHASE AND ASSUMPTION AGREEMENT
BETWEEN
NATIONSBANK, N.A.
AND
BANCFIRST
PURCHASE AND ASSUMPTION AGREEMENT
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ARTICLE I - TRANSFER OF ASSETS AND LIABILITIES
SECTION 1.1. Transferred Assets........................................... 2
SECTION 1.2. Purchase Price............................................... 3
SECTION 1.3. Deposit Liabilities.......................................... 4
SECTION 1.4. Loans Transferred............................................ 6
SECTION 1.5. Safe Deposit Business........................................ 8
SECTION 1.6. Employee Matters............................................. 9
SECTION 1.7. Records and Data Processing................................. 9
SECTION 1.8. Security..................................................... 10
SECTION 1.9. Taxes and Fees; Proration of................................. 10
Certain Expenses
SECTION 1.10. Real Property................................................ 10
ARTICLE II - CLOSING AND EFFECTIVE TIME
SECTION 2.1. Effective Time............................................... 12
SECTION 2.2. Closing...................................................... 13
SECTION 2.3. Post-Closing Adjustments..................................... 14
ARTICLE III - INDEMNIFICATION
Section 3.1. Seller's Indemnification of Purchaser........................ 16
Section 3.2. Purchaser's Indemnification of Seller........................ 16
Section 3.3. Claims for Indemnity......................................... 16
Section 3.4. Limitations on Indemnification............................... 17
ARTICLE IV - REPRESENTATIONS AND WARRANTIES OF SELLER
Section 4.1. Corporate Organization....................................... 17
Section 4.2. No Violation................................................. 17
Section 4.3. Corporate Authority.......................................... 18
Section 4.4. Enforceable Agreement........................................ 18
Section 4.5. No Brokers................................................... 18
Section 4.6. Personal Property............................................ 18
Section 4.7. Real Property................................................ 18
Section 4.8. Condition of Property........................................ 19
Section 4.9. Limitation of Representations................................ 19
and Warranties
ARTICLE V - REPRESENTATIONS AND WARRANTIES OF PURCHASER
Section 5.1. Corporate Organization....................................... 19
Section 5.2. No Violation................................................. 19
Section 5.3. Corporate Authority.......................................... 20
Section 5.4. Enforceable Agreement........................................ 20
Section 5.5. No Brokers................................................... 20
ARTICLE VI - OBLIGATIONS OF PARTIES PRIOR
TO AND AFTER EFFECTIVE TIME
Section 6.1. Full Access.................................................. 20
Section 6.2 Delivery of Magnetic Media Records........................... 20
Section 6.3. Application for Approval to Effect Purchase
of Assets and Assumption of Liabilities...................... 21
Section 6.4. Conduct of Business; Maintenance of Properties............... 21
Section 6.5. No Solicitation by Seller.................................... 21
Section 6.6. No Solicitation by Purchaser................................. 22
Section 6.7. No Marketing by Purchaser.................................... 22
Section 6.8. Further Actions.............................................. 23
Section 6.9. Fees and Expenses............................................ 23
Section 6.10. Breaches with Third Parties.................................. 23
Section 6.11. Insurance.................................................... 23
Section 6.12. Public Anouncements.......................................... 23
Section 6.13. Tax Reporting................................................ 23
Section 6.14. Subsequent Sale.............................................. 24
ARTICLE VIII - CONDITIONS TO PURCHASER'S OBLIGATIONS
Section 7.1. Representations and Warranties True.......................... 24
Section 7.2. Obligations Performed........................................ 24
Section 7.3. No Adverse Litigation........................................ 24
Section 7.4. Regulatory Approval.......................................... 24
ARTICLE VII - CONDITIONS TO SELLER'S OBLIGATIONS
Section 8.1. Representations and Warranties True.......................... 25
Section 8.2. Obligations Performed........................................ 25
Section 8.3. No Adverse Litigation........................................ 25
Section 8.4. Regulatory Approval.......................................... 25
ARTICLE IX - TERMINATION
Section 9.1. Methods of Termination....................................... 25
Section 9.2. Procedure Upon Termination................................... 26
Section 9.3. Payment of Expenses.......................................... 27
ARTICLE X - MISCELLANEOUS PROVISIONS
Section 10.1. Amendment and Modification................................... 27
Section 10.2. Waiver or Extension.......................................... 27
Section 10.3. Assignment................................................... 27
Section 10.4. Confidentiality.............................................. 27
Section 10.5. Addresses for Notices, Etc................................... 26
Section 10.6. Counterparts................................................. 28
Section 10.7. Headings..................................................... 29
Section 10.8. Governing Law................................................ 29
Section 10.9. Sole Agreement............................................... 29
Section 10.10. Severability................................................. 29
Section 10.11. Parties in Interest.......................................... 29
PURCHASE AND ASSUMPTION AGREEMENT
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THIS PURCHASE AND ASSUMPTION AGREEMENT (this "Agreement") is entered into
as of Sept 26, 1997 by and between NationsBank, N.A., a national banking
association having its principal offices in Charlotte, North Carolina
("Seller"), and BancFirst, an Oklahoma banking corporation having its principal
offices in Oklahoma City, Oklahoma ("Purchaser"):
W I T N E S S E T H:
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WHEREAS, Seller wishes to divest, upon the terms and conditions set forth
herein, certain assets and certain deposit and other liabilities of the
following offices (collectively, the "Banking Centers"):
BARTLESVILLE - 422. S ▇▇▇▇▇, Bartlesville, OK
BLACKWELL MAIN - ▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇
BLACKWELL DRIVE-IN - ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇
BRAMAN - ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇
BRAMAN HISTORICAL BUILDING - ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇
CUSHING- ▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇
GUTHRIE - ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇
KAW CITY - ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇
PERRY - ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇
SHIDLER - ▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇
STILLWATER - ▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇
WOODWARD MAIN - ▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇▇ DRIVE-IN - ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇
WHEREAS, Purchaser wishes to buy such assets and assume such liabilities
upon the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and mutual agreements
hereinafter set forth, Seller and Purchaser agree as follows:
ARTICLE 1
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TRANSFER OF ASSETS AND LIABILITIES
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Section 1.1. Transferred Assets.
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(a) As of the Effective Time (as defined in Section 2.1 below) and upon
the terms and conditions set forth herein, Seller will sell, assign,
transfer, convey and deliver to Purchaser, and Purchaser will
purchase from Seller, all of the following assets associated with the
Banking Centers and identified in this Agreement and the Exhibits
hereto, and not otherwise excluded from sale pursuant to the
provisions of Subsection 1.l(b) below:
(1) subject to Section 1.10 hereof, all transferable right,
title and interest of Seller in and to all real estate and
improvements thereon at the Banking Centers (the "Real
Property"), together with all rights and appurtenances
pertaining thereto;
(2) the furniture, fixtures, leasehold improvements, equipment
and other tangible personal property located on or affixed
to the Real Property (the "Personal Property");
(3) all leases affecting the Banking Centers, including all
leases of real property (the "Real Property Leases"), and
all equipment leases for equipment located at the Banking
Centers (the "Equipment Leases");
(4) all safe deposit contracts and leases for the safe deposit
boxes located at the Banking Centers as of the Effective
Time (the "Safe Deposit Contracts");
(5) all loans transferred pursuant to Section 1.4; and
(6) all coins and currency located at the Banking Centers as of
the Effective Time (the "Coins and Currency").
(b) Excluded from the assets, properties and rights being transferred,
conveyed and assigned to Purchaser under this Agreement are the
assets listed on Exhibit 1.1(b) hereto, Seller's rights in and to
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the names "NationsBank" and "Boatmen's" and any of their predecessor
banks' names and any of Seller's or Seller's predecessors corporate
logos, trademarks, trade names, signs, paper stock, forms and other
supplies containing any such logos, trademarks or trade names (the
"Excluded Assets"). Seller shall coordinate with Purchaser to remove
the Excluded Assets from the Banking Centers on or prior to the
Effective Time. Seller shall remove the Excluded Assets at its own
cost and, apart from making any repairs necessitated by Seller's
negligence in removing the Excluded Assets, Seller shall be under no
obligation to restore the Banking Centers' premises to their original
condition, which shall be the responsibility of Purchaser.
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Section 1.2. Purchase Price.
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(a) As consideration for the purchase of the Banking Centers,
Purchaser shall pay Seller a purchase price equal to the sum of
the following:
(1) Net Book Value (as defined in Section 1.2(d) hereof) as of
the Effective Time for the Personal Property and the Real
Property;
(2) As a premium for the Deposit Liabilities (as defined in
Section 1.3(a) hereof) and the franchise value related to
the Banking Centers, the greater of (x) the amount equal to
7.08% of the Deposit Liabilities and (y) the amount
calculated pursuant to Section 6.7(b), if applicable;
(3) the Net Book Value (as defined in Section 1.2(d) hereof) for
the Loans as set forth in Section 1.4 hereof;
(4) The face amount of the Coins and Currency; and
(5) $25,000, which is an additional fee to compensate Seller for
separate communications to customers of the ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ Main, and Woodward Drive-In banking centers (the
"▇▇▇▇▇▇▇▇ Banking Centers") and for separate systems reports
and customer account data tapes relating to the ▇▇▇▇▇▇▇▇
Banking Centers.
(b) In addition, Purchaser shall assume, as of the Effective Time,
all of the duties, obligations and liabilities of Seller relating
to the Real Property, the Real Property Leases, building leases,
the Equipment Leases, the Safe Deposit Contracts, the Deposit
Liabilities (including all accrued interest relating thereto) and
all assignable operating contracts of the Banking Centers
(excluding any master contracts); provided, that any cash items
paid by Seller and not cleared prior to the Effective Time shall
be the responsibility of Seller, subject to he terms of Section
1.3 below.
(c) Seller shall prepare a balance sheet (the "Pre-Closing Balance
Sheet") in accordance with generally accepted accounting
principles consistently applied as of a date not earlier than 30
calendar days prior to the Effective Time anticipated by the
parties (the "Pre-Closing Balance Sheet Date") reflecting the
assets to be sold and assigned hereunder and the liabilities to
be transferred and assumed hereunder all reflecting based on the
book value of such assets and liabilities; Seller agrees to pay
to Purchaser at the Closing (as defined in Section 2.1 hereof),
in immediately available funds, the excess amount, if any, of the
amount of Deposit Liabilities assumed by Purchaser pursuant to
subsection (b) above as reflected by the Pre-Closing Balance
Sheet over the aggregate purchase price computed in accordance
with subsection (a) above, as reflected by the Pre-Closing
Balance Sheet. Purchaser agrees to pay Seller at the Closing, in
immediately available funds, the excess, if any, of the aggregate
purchase price computed in accordance with subsection (a) above,
as reflected by the Pre-Closing Balance Sheet over the amount of
Deposit Liabilities assumed by Purchaser pursuant to subsection
(b) above as reflected by the Pre-Closing Balance Sheet. Amounts
paid at Closing
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shall be subject to subsequent adjustment based on the Post-Closing
Balance Sheet (as defined in Section 2.3 hereof).
(d) For purposes of this Agreement, "Net Book Value" means the value
determined from the Post-Closing Balance Sheet. With regard to Loans,
Net Book Value is the aggregate principal amount of the Loans, plus
accrued and unpaid interest and late charges thereon, but such value
shall not include any loan loss reserves or general reserve. With
regard to Personal Property and Real Property, Net Book Value is the
value that the asset is carried on the Seller's Balance Sheet.
Section 1.3. Deposit Liabilities.
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(a) "Deposit Liabilities" shall mean all of Seller's duties, obligations
and liabilities relating to the deposit accounts located at the
Banking Centers as of the Effective Time (including accrued but unpaid
or uncredited interest thereon).
(b) Except for those liabilities and obligations specifically assumed by
Purchaser under 1.2(b) above, Purchaser is not assuming any other
liabilities or obligations. Liabilities not assumed include, but are
not limited to, the following:
(1) Seller's cashier checks) letters of credit, money orders,
interest checks and expense checks issued prior to closing,
consignments of U.S. Government "E" and "EE" bonds and any and
all traveler's checks.
(2) Liabilities or obligations with respect to any litigation, suits,
claims, demands or governmental proceedings arising, commenced or
made known to Seller prior to Closing and related to the Banking
Centers.
(3) Deposit accounts associated with lines of credit where the
line of credit is excluded in accordance with Section 1.4 (b).
(4) Deposit accounts associated with qualified retirement plans where
Seller is the trustee of such plan or the sponsor of a prototype
plan used by such plan.
(5) Deposit accounts associated with Seller's group banking program,
if any.
(6) Self-directed individual retirement accounts, if any, it being
understood that all other types of ▇▇▇ Deposit Liabilities are
intended to be transferred.
(c) Seller does not represent or warrant that any deposit customers whose
accounts are assumed by Purchaser will become or continue to be
customers of Purchaser after the Effective Time.
(d) Purchaser agrees to pay in accordance with law and customary banking
practices all properly drawn and presented checks, drafts and
withdrawal orders presented to Purchaser by mail, over the counter or
through the check clearing system of the banking industry, by
depositors of the accounts assumed, whether drawn on
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the checks, withdrawal or draft forms provided by Seller or by
Purchaser, and in all other respects to discharge, in the usual course
of the banking business, the duties and obligations of Seller with
respect to the balances due and owing to the depositors whose
accounts are assumed by Purchaser.
(e) If, after the Effective Time, any depositor, instead of accepting the
obligation of Purchaser to pay the Deposit Liabilities assumed, shall
demand payment from Seller for all or any part of any such assumed
Deposit Liabilities, Seller shall not be liable or responsible for
making any such payment; provided, that if Seller shall pay the same,
Purchaser agrees to reimburse Seller for any such payments, and Seller
shall not be deemed to have made any representations or warranties to
Purchaser with respect to any such checks, drafts or withdrawal orders
and any such representations or warranties implied by law are hereby
expressly disclaimed. Seller and Purchaser shall make arrangements to
provide for the daily settlement with immediately available funds by
Purchaser of checks, drafts, withdrawal orders, returns and other
items presented to and paid by Seller within 60 calendar days after
the Effective Time and drawn on or chargeable to accounts that have
been assumed by Purchaser; provided, however, that Seller shall be
held harmless and indemnified by Purchaser for acting in accordance
with such arrangements.
(f) Purchaser agrees, at its cost and expense, (1) to assign new account
numbers to depositors of assumed accounts, (2) to notify such
depositors, on or before the Effective Time, in a form and on a date
mutually acceptable to Seller and Purchaser, of Purchaser's assumption
of Deposit Liabilities, and (3) to furnish such depositors with checks
on the forms of Purchaser and with instructions to utilize Purchaser's
checks and to destroy unused check, draft and withdrawal order forms
of Seller. (1f Purchaser so elects, Purchaser may offer to buy from
such depositors their unused Seller check, draft and withdrawal order
forms.) In addition, subsequent to regulatory approval, Seller will
notify its affected customers by letter of the pending assignment of
Seller's deposit accounts to Purchaser, which notice shall be at
Seller's cost and expense and shall be in a form mutually agreeable to
Seller and Purchaser.
(g) Purchaser agrees to pay promptly to Seller an amount equivalent to the
amount of any checks, drafts or withdrawal orders credited to an
assumed account as of the Effective Time that are returned to Seller
after the Effective Time.
(h) As of the Effective Time, Purchaser will assume and discharge Seller's
duties and obligations in accordance with the terms and conditions and
laws, rules and regulations that apply to the certificates, accounts
and other Deposit Liabilities assumed under this Agreement.
(i) As of the Effective Time, Purchaser will maintain and safeguard in
accordance with applicable law and sound banking practices all account
documents, deposit contracts, signature cards, deposit slips, canceled
items and other records related to the Deposit Liabilities assumed
under this Agreement, subject to Seller's right of access to such
records as provided in this Agreement.
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(j) Seller will render a final statement to each depositor of an account
assumed under this Agreement as to transactions occurring through the
Effective Time and will comply with all laws, rules and regulations
regarding tax reporting of transactions of such accounts through the
Effective Time; provided, however, that Seller shall not be obligated
to render a final statement on any account not ordinarily receiving
periodic statements in the ordinary course of Seller's business.
Seller will be entitled to impose normal fees and service charges on a
per-item basis, but Seller will not impose periodic fees or blanket
charges in connection with such final statements.
(k) As of the Effective Time, Purchaser, at its expense, will notify all
Automated Clearing House ("ACH") originators of the transfers and
assumptions made pursuant to the Agreement; provided, however, that
Seller may, at its option, notify all such originators itself (on
behalf of Purchaser) also at the expense of Purchaser. For a period of
60 calendar days beginning on the Effective Time, Seller will honor
all ACH items related to accounts assumed under this Agreement which
are mistakenly routed or presented to Seller. Seller will make no
charge to Purchaser for honoring such items, and will electronically
transmit such ACH data to Purchaser. If Purchaser cannot receive an
electronic transmission, Seller will make available to Purchaser at
Seller's operations center receiving items from the Automated Clearing
House tapes containing such ACH data. Items mistakenly routed or
presented after the 60-day period should be returned to the presenting
party. Seller and Purchaser shall make arrangements to provide for the
daily settlement with immediately available funds by Purchaser of any
ACH items honored by Seller, and Seller shall be held harmless and
indemnified by Purchaser for acting in accordance with this
arrangement to accept ACH items.
(l) As of the Effective Time, Purchaser agrees to use its best efforts to
collect from Purchaser's customers amounts equal to any Visa or
MasterCard charge backs under the MasterCard and Visa Merchant
Agreements between Seller and its customers or amounts equal to any
deposit items returned to Seller after the Effective Time which were
honored by Seller prior to the Effective Time and remit such amounts
so collected to Seller. Purchaser agrees to immediately freeze and
remit to Seller any funds, up to the amount of the charged back or
returned item that had been previously credited by Seller if such
funds are available at the time of notification by Seller to Purchaser
of the charged back or returned item. Notwithstanding the foregoing,
Purchaser shall have no duty to remit funds for any item or charge
that has been improperly returned or charged to Seller. Solely for
the purposes of this Section 1.3(1), all references to Seller shall be
deemed to include Seller and its assignees.
Section 1.4. Loans Transferred.
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(a) Seller will transfer to Purchaser as of the Effective Time, subject to
the terms and conditions of this Agreement, all of Seller's right,
title and interest in (including collateral relating thereto) loans
maintained, serviced and listed in Seller's general ledger as loans of
the Banking Centers (collectively, the "Loans"); provided, however the
Loans shall not include any loans described in subsection
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(b) below. Such Loans (as well as any security interest related thereto)
shall be transferred by means of a blanket (collective) assignment and not
individually (except as may be otherwise required by law). Purchaser shall
inform Seller not less than 45 calendar days prior to the proposed closing
of any case in which filing information relating to any collateral for the
Loans will be required for preparation of any assignments of liens.
(b) Notwithstanding the provisions of subsection (a) above, the Loans shall not
include:
(1) nonaccruals (which term shall include loans in which the collateral
securing same has been repossessed or in which collection efforts have
been instituted or, claim and delivery or foreclosure proceedings have
been filed);
(2) loans 90 calendar days or more past due;
(3) loans upon which insurance has been force-placed;
(4) indirect consumer loans, credit card loans, and real estate mortgage
loans (1 to 4 family);
(5) loans in connection with which the borrower has filed a petition for
relief under the United States Bankruptcy Code prior to the Effective
Time;
(6) loans set forth in Exhibit 1.4(b); or
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(7) loans identified by Purchaser in writing 45 calendar days or more
prior to the Effective Time as not being purchased because of failure
to meet the credit standards of Purchaser.
(c) Seller and Purchaser agree that Purchaser will become the beneficiary of
credit life insurance written on direct consumer installment loans and
coverage will continue to be the obligation of the current insurer after
the Effective Time and for the duration of such insurance as provided
under the terms of the policy or certificate. If Purchaser becomes the
beneficiary of credit life insurance written on direct consumer installment
loans, Seller and Purchaser agree to cooperate in good faith to develop a
mutually satisfactory method by which the current insurer will make rebate
payments to and satisfy claims of the holders of such certificates of
insurance after the Effective Time. The parties obligations in this section
are subject to any restrictions contained in existing insurance contracts
as well as applicable laws and regulations.
(d) In connection with the transfer of any loans requiring notice to the
borrower, Purchaser and Seller agree to comply with all notice and
reporting requirements of the loan documents or of any law or regulation.
(e) All Loans transferred to Purchaser shall be valued at their Net Book Value.
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(f) All Loans will be transferred without recourse and without any
warranties or representations as to their collectibility or the
creditworthiness of any of the obligors of such Loans.
(g) Purchaser will at its expense issue new coupon books for payment of
Loans for which Seller provides coupon books with instructions to
utilize Purchaser's coupons and to destroy coupons furnished by
Seller.
(h) For a period of 30 calendar clays after the Effective Time, Seller
will forward to Purchaser loan payments received by Seller. Purchaser
shall reimburse Seller upon demand for checks returned on payments
forwarded to Purchaser; however, to the extent possible, Seller will
deduct the amount of such returned checks from payments received and
shall settle with Purchaser by an official check.
(i) As of the Effective Time, Seller shall transfer and assign all files,
documents and records related to the Loans to Purchaser, and Purchaser
will be responsible for maintaining and safeguarding all such
materials in accordance with applicable law and sound banking
practices.
(j) If the balance due on any Loan purchased pursuant to this Section 1.4
has been reduced by Seller as a result of a payment by check received
prior to the Effective Time, which item is returned after the
Effective Time, the asset value represented by the Loan transferred
shall be correspondingly increased and an amount in cash equal to such
increase shall be paid by Purchaser to Seller promptly upon demand.
(k) Seller shall grant to Purchaser as of the Effective Time a limited
power of attorney, in substantially the form attached hereto as
Exhibit 1.4(k) (the "Power of Attorney").
Section 1.5. Safe Deposit Business.
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(a) As of the Effective Time, Purchaser will assume and discharge Seller's
obligations with respect to the safe deposit box business at the
Banking Centers in accordance with the terms and conditions of
contracts or rental agreements related to such business, and Purchaser
will maintain all facilities necessary for the use of such safe
deposit boxes by persons entitled to use them.
(b) As of the Effective Time, Seller shall transfer and assign the records
related to such safe deposit box business to Purchaser, and Purchaser
shall maintain and safeguard all such records and be responsible for
granting access to and protecting the contents of safe deposit boxes
at the Banking Centers.
(c) Safe deposit box rental payments (not including late payment fees)
collected by Seller before the Effective Time shall be prorated as of
the Effective Time.
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Section 1.6. Employee Matters.
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(a) Subject to Section 10.11 hereof, Purchaser shall offer employment to
all employees employed by Seller at the Banking Centers as of the
Effective Time (the "Employees"), in their then current functional
positions at each office with remuneration not less than current
levels (subject to normal salary increases) and benefits generally
equivalent to current levels. Except for Purchaser's pension plan,
Employees who become employees of Purchaser shall receive full credit
for their prior service with Seller under Purchaser's benefit plans
and policies, including its vacation and sick leave policies. As of
the Effective Time, the Employees who become employees of Purchaser
and their dependents, if any, previously covered under Seller's health
insurance plan shall be covered under Purchaser's health insurance
plan without being subject to any pre-existing condition limitations
or exclusions except those excluded under Seller's health insurance
plan. Employees who become employees of Purchaser shall not be
required to satisfy the deductible and employee payments required by
Purchaser's comprehensive medical and or dental plans for the
calendar year of the Effective Time to the extent of amounts
previously credited during such calendar year under comparable plans
maintained by Seller. Employees who become employees of Purchaser
shall receive full credit for their prior service with Seller for
purposes of determining their participation eligibility and vesting
rights under Purchaser's pension plan; benefits under Purchaser's
pension plan shall accrue from the first day of service with Purchaser
and shall be based on the number of years of service with Purchaser.
(b) Seller makes no representations or warranties about whether any of the
Empoyees will remain employed at the Banking Centers after the
Effective Time. Seller will use its best efforts to maintain the
Employees as employees of Seller at the Banking Centers until the
Effective Time. Any Employee whose employment shall be terminated for
any reason prior to the Effective Time or who shall elect not to be an
employee of Purchaser shall be dealt with by Seller in its sole and
absolute discretion. Seller agrees that, for a period of 12 months
after the Effective Time, it will not solicit for employment any
Employee who remains employed by Purchaser.
(c) Purchaser agrees for a period of 12 months after the Effective Time no
transferred Employee will be terminated without a severance benefit no
less than the applicable severance benefit set forth in Exhibit
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1.6(c).
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(d) Purchaser agrees to include in any agreement for the purchase and
assumption of the assets and liabilities of the ▇▇▇▇▇▇▇▇ Banking
Centers protections for Employees no less than those protections
provided pursuant to this Section 1.6.
Section 1.7. Records and Data Processing.
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(a) As of the Effective Time, Purchaser shall become responsible for
maintaining the files, documents and records referred to in this
Agreement. Purchaser will preserve and safekeep them as required by
applicable law and sound banking
9
practice for the joint benefit of Seller and Purchaser. After the
Effective Time, Purchaser will permit Seller and its representatives,
for reasonable cause, at reasonable times and upon reasonable notice
and at Seller's expense, to examine, inspect, copy and reproduce any
such files, documents or records as Seller deems reasonably necessary.
(b) As of the Effective Time, Seller will permit Purchaser and its
representatives, for reasonable cause, at reasonable times and upon
reasonable notice and at Purchaser's expense, to examine, inspect,
copy and reproduce files, documents or records retained by Seller
regarding the assets and liabilities transferred under this Agreement
as Purchaser deems reasonably necessary.
(c) It is understood that certain of Seller's records may be available
only in the form of photocopies, film copies or other non-original and
non-paper media.
Section 1.8. Security.
------------ --------
As of the Effective Time, Purchaser shall be solely responsible for the
security of and insurance on all persons and property located in or about the
Banking Centers.
Section 1.9. Taxes and Fees; Proration of Certain Expenses.
------------ ---------------------------------------------
Purchaser shall be responsible for the payment of all fees and taxes
related to this transaction; except that Purchaser shall not be responsible for,
or have any liability with respect to, taxes on any income to Seller arising out
of this transaction. Purchaser shall not be responsible for any income tax
liability of Seller arising from the business or operations of the Banking
Centers before the Effective Time, and Seller shall not be responsible for any
tax liabilities of Purchaser arising from the business or operations of the
Banking Centers after the Effective Time. Utility payments, telephone charges,
real property taxes, personal property taxes, rent, salaries, deposit insurance
premiums, other ordinary operating expenses of the Banking Centers and other
expenses related to the liabilities assumed or assets purchased hereunder shall
be prorated between the parties as of the Effective Time. To the extent any such
item has been prepaid by Seller for a period extending beyond the Effective
Time, there shall be a proportionate monetary adjustment in favor of Seller.
Section 1.10. Real Property.
------------- -------------
(a) Title Matters.
-------------
(i) Seller agrees to deliver to Purchaser as soon as reasonably
possible upon Purchaser's request copies of all title information
in possession of Seller, including, but not limited to, title
insurance policies, attorneys' opinions on title, surveys,
covenants, deeds, notes and mortgages and easements relating to
the Real Property. Such delivery shall constitute no warranty by
Seller as to the accuracy or completeness thereof or that
Purchaser is entitled to rely thereon.
(ii) Purchaser agrees to notify Seller in writing within 45 calendar
days after the date that the documents described in Subsection
1.10(a)(i) above are
10
delivered by Seller to Purchaser of any mortgages, pledges,
material liens, encumbrances, reservations, tenancies,
encroachments, overlaps or other title exceptions or zoning or
similar land use violations (excluding legal but nonconforming
uses) related to the Real Property to which Purchaser reasonably
objects (the "Title Defects"). Purchaser agrees that Title
Defects shall not include real property taxes not yet due and
payable or easements, restrictions, tenancies, and rights of way
which do not materially interfere with the use of the Real
Property as a banking center. Seller shall make a good faith
effort to correct any such Title Defect to Purchaser's
reasonable satisfaction at least 10 calendar days prior to
Closing; provided, however, that Seller shall not be obligated
to bring any lawsuit or make any payments of money (except to
pay liens that Seller does not dispute in good faith) to cure a
Title Defect. If Seller is unable or unwilling to cure any such
Title Defects to Purchaser's reasonable satisfaction,
Purchaser shall have the option either to terminate this
Agreement (upon written notice to Seller) with respect to the
Banking Center at which the Real Property having such Title
Defects is located or to receive title in its then existing
condition. Upon termination of this Agreement with respect to a
Banking Center pursuant to this Section 1.10, neither party
shall have any further liability to the other party under this
Agreement with respect to such Banking Center and the purchase
price shall be adjusted accordingly.
(iii) Purchaser shall have the right to update title matters at
Closing for any changes which may have arisen between the date
of Purchaser's original title search and the Closing Date. If
such update indicates that any Title Defects have been placed of
record since the date of Purchaser's original title search, and
Purchaser reasonably objects thereto, then Seller may elect to
delay the Closing with respect to the affected Banking Center
for up to 30 calendar days while Seller makes a good faith
effort to cure any such Title Defect to Purchaser's reasonable
satisfaction; provided that Seller shall not be obligated to
bring any lawsuit or make any payments of money (except to pay
liens that Seller does not dispute in good faith) to cure a
Title Defect. If Seller is unable or unwilling to cure any such
Title Defect within such 30 day period, Purchaser shall have the
option to receive title in the then existing condition or to
terminate this Agreement (upon written notice to Seller) with
respect to the Banking Center affected by the Title Defect, in
which event neither party shall have any further liability to
the other party under this Agreement with respect to such
Banking Center and the purchase price shall be adjusted
accordingly.
(b) Environmental Matters.
---------------------
Purchaser shall have the right to conduct such investigation of
environmental matters with respect to the Real Property as it may
reasonably require and shall report the results of any such
investigation, together with its objections to any material violation
of applicable environmental law which impacts the Real Property or the
use thereof as a banking center, if any, to Seller no later than 45
calendar days after the date of this Agreement; provided, however,
that without
11
the prior written consent of Seller, Purchaser shall not conduct any
ground water monitoring or install any test well or undertake any
other investigation which requires a permit or license from, or the
reporting of the investigation or the results thereof to, a local or
state environmental regulatory authority or the United States
Environmental Protection Agency. If Purchaser objects to any material
violation of applicable environmental law which impacts the Real
Property or the use thereof as a banking center, Seller shall have
the right, but not the obligation, to cure any such material violation
of law which is discovered by Purchasers investigation. If Seller
either refuses to give such written consent or refuses to cure any
material violation of applicable environmental law relating to the
Real Property or the use thereof as a banking center, Purchaser shall
have the option either to purchase the Real Property in its then
existing condition or to terminate this Agreement (upon written notice
to Seller) with respect to the Banking Center at which the Real
Property affected by such refusal is located in which event neither
party shall have any further liability to the other under this
Agreement with respect to such Banking Center and the purchase price
shall be adjusted accordingly.
(c) Termination by Seller.
---------------------
If Purchaser elects not to purchase a Banking Center pursuant to this
Section 1.10, Seller may elect to terminate this Agreement in its
entirety within 10 calendar days after its receipt of Purchaser's
election not to purchase a Banking Center.
ARTICLE II
----------
CLOSING AND EFFECTIVE TIME
--------------------------
Section 2.1. Effective Time.
------------ --------------
(a) The purchase of assets and assumption of liabilities provided for in
this Agreement shall occur at a closing (the "Closing") to be held at
the offices of Seller in Dallas, Texas at 10:00 a.m. local time within
31 calendar days following the date of all approvals by regulatory
agencies and after all statutory waiting periods have expired, but not
before March 1, 1998, or at such other place, time or date on which
the parties shall mutually agree. The effective time (the "Effective
Time") shall be 2:00 p.m., local time, on the day on which the
Closing occurs (the "Closing Date").
(b) Purchaser may effect a closing of a purchase and assumption agreement
relating to the sale of the assets and the assumption of the
liabilities of the ▇▇▇▇▇▇▇▇ Banking Centers with Central National Bank
of ▇▇▇▇ (the "Subsequent Sale") on the Closing Date after the
Effective Time and after the Closing has occurred, provided that as of
the earlier of February 1, 1998 and the date which is 45 days prior to
the Effective Date, Seller shall have received from Central National
Bank of ▇▇▇▇ a certification that Central National Bank of ▇▇▇▇ has
received all necessary regulatory approvals of the transactions
provided in this Agreement, no proceeding to enjoin, restrain,
prohibit or invalidate such transactions has
12
been instituted or threatened, and all conditions of any regulatory
approval have been met.
Section 2.2. Closing.
------------ -------
(a) All actions taken and documents delivered at the Closing shall be
deemed to have been taken and executed simultaneously, and no action
shall be deemed taken nor any document delivered until all have been
taken and delivered.
(b) At the Closing, subject to all the terms and conditions of this
Agreement, Seller shall deliver to Purchaser or, in the case of
subsections (b)(5), (6), (7), (9) and (10), make reasonably available
to Purchaser:
(1) A limited warranty deed transferring title to the Real Property
to Purchaser;
(2) A ▇▇▇▇ of Sale, in substantially the form attached hereto as
Exhibit 2.2(b)(2) (the "▇▇▇▇ of Sale"), transferring to Purchaser
-----------------
all of Seller's interest in the Personal Property and in the
Loans;
(3) An Assignment and Assumption Agreement, in substantially the form
attached hereto as Exhibit 2.2(b)(3) (the "Assignment and
----------------
Assumption Agreement"), assigning Seller's interest in the
Equipment Leases, the Real Property Leases, the Safe Deposit
Contracts, and the Deposit Liabilities;
(4) Consents from third persons that are required to effect the
assignments set forth in the Assignment and Assumption Agreement,
including, but not limited to, the lessors under the Equipment
Leases and the Real Property Leases (to the extent required by
such leases);
(5) Seller's keys to the safe deposit boxes and Seller's records
related to the safe deposit box business at the Banking Centers;
(6) Seller's files and records related to the Loans;
(7) Seller's records related to the deposit accounts assumed by
Purchaser;
(8) Immediately available funds in the net amount shown as owing to
Purchaser by Seller on the Closing Statement, if any;
(9) The Coins and Currency;
(10) Such of the other assets to be purchased as shall be capable of
physical delivery;
(11) A certificate of a proper officer of Seller, dated as of the date
of Closing, certifying to the fulfillment of all conditions which
are the obligation of
13
Seller and that all of the representations and warranties of
Seller set forth in this Agreement remain true and correct in all
material respects as of Effective Time;
(12) Certified copies of (A) he Articles of Association and Bylaws of
Seller and (B) a resolution of the Board of Directors of Seller,
or its Executive Committee, approving the sale of the Banking
Centers contemplated hereby;
(13) Such certificates and other documents as Purchaser and its
counsel may reasonably require to evidence the receipt by Seller
of all necessary corporate and regulatory authorizations and
approvals for the consummation of the transactions provided for
in this Agreement;
(14) A Closing Statement, substantially in the form attached hereto
as Exhibit 2.2(b)(14) (the "Closing Statement");
------------------
(15) An affidavit of Seller certifying that Seller is not a "foreign
person" as defined in the federal Foreign Investment in Real
Property Tax Act of 1980; and
(16) The Power of Attorney.
It is understood that the items listed in subsections b(5) and
(9) shall be transferred after the Banking Centers have closed
for business on the Closing Date and that the records listed in
subsections b(6) and (7) will be transferred as soon as possible
after the Closing, but in no event more than five (5) business
days after the Closing.
(c) At the Closing, subject to all the terms and conditions of this
Agreement, Purchaser shall deliver to Seller:
(1) The Assignment and Assumption Agreement;
(2) A certificate and receipt acknowledging the delivery and receipt
of possession of the property and records referred to in this
Agreement;
(3) Immediately available funds in the net amount shown as owing to
Seller by Purchaser on the Closing Statement, if any;
(4) A certificate of a proper officer of Purchaser, dated as of the
Date of Closing, certifying to the fulfillment of all conditions
which are the obligation of Purchaser and that all of the
representations and warranties of Purchaser set forth in this
Agreement remain true and correct in all material respects as of
the Effective Time;
(5) Certified copies of (A) the Articles of Incorporation and Bylaws
of the Purchaser and (B) a resolution of the Board of Directors,
or its Executive
14
Committee, of Purchaser approving the purchase of the Banking
Centers contemplated hereby;
(6) Such certificates and other documents as Seller and its counsel
may reasonably require to evidence the receipt of Purchaser of
all necessary corporate and regulatory authorizations and
approvals for the consummation of the transactions provided for
in this Agreement; and
(7) The Closing Statement.
(d) All instruments, agreements and certificates described in this Section
2.2 shall be in form and substance reasonably satisfactory to the
parties' respective legal counsel.
Section 2 3. Post-Closing Adjustments.
------------ ------------------------
(a) Not later than 30 business days after the Effective Time (the "Post-
Closing Balance Sheet Delivery Date"), Seller shall deliver
to Purchaser a balance sheet dated as of the Effective Time and
prepared in accordance with generally accepted accounting principles
consistently applied reflecting the assets sold and assigned and the
liabilities transferred and assumed hereunder (the "Post-Closing
Balance Sheet"). Additionally, Seller shall deliver to Purchaser a
list of loans purchased, individually identified by account number,
which list shall be appended to the ▇▇▇▇ of Sale. Seller shall afford
Purchaser and its accountants and attorneys the opportunity to review
all work papers and documentation used by Seller in preparing the
Post-Closing Balance Sheet. Within 15 business days following the
Post-Closing Balance Sheet Delivery Date (the "Adjustment Payment
Date"), Seller and Purchaser shall meet at the offices of Seller in
Dallas, Texas or such other location as may be mutually agreed, to
effect the transfer of any funds as may be necessary to reflect
changes in such assets and liabilities between the Pre-Closing Balance
Sheet and the Post-Closing Balance Sheet together with interest
thereon computed from the Effective Time to the Adjustment Payment
Date at the applicable Federal Funds Rate (as hereinafter defined).
(b) In the event that a dispute arises as to the appropriate amounts to be
paid to either party on the Adjustment Payment Date, each party shall
pay to the other on such Adjustment Payment Date all amounts other
than those as to which a dispute exists. Any disputed amounts retained
by a party which are later found to be due to the other party shall be
paid to such other party promptly upon resolution with interest
thereon from the Adjustment Payment Date to the date paid at the
applicable Federal Funds Rate.
(c) The Federal Funds Rate shall be the mean of the high and low rates
quoted for Federal Funds in the Money Rates Column of the Wall Street
Journal adjusted as such mean may increase or decrease during the
period between the Effective Time and the Adjustment Payment Date.
15
ARTICLE III
-----------
INDEMNIFICATION
---------------
Section 3.1. Seller's Indemnification of Purchaser.
----------- -------------------------------------
Seller shall indemnify, hold harmless and defend Purchaser from and against
any breach by Seller of any representation or warranty contained herein and all
claims, losses, liabilities, demands and obligations, including reasonable
attorneys' fees and expenses, arising out of any actions, suits or proceedings
commenced prior to the Effective Time (other than proceedings to prevent or
limit the consummation of this transaction) relating to operations at the
Banking Centers; and, except as otherwise provided in this Agreement, Seller
shall further indemnify, hold harmless and defend Purchaser from and against all
claims, losses, liabilities, demands and obligations, including reasonable
attorneys' fees and expenses; real estate taxes, intangibles and franchise
taxes, sales and use taxes, social security and unemployment taxes, all
accounts payable and operating expenses (including salaries, rents and utility
charges) incurred by Seller prior to the Effective Time and which are claimed or
demanded on or after the Effective Time, or which arise out of any actions,
suits or proceedings commenced on or after the Effective Time and which relate
to operations at the Banking Centers prior to the Effective Time.
Section 3.2. Purchaser's Indemnification of Seller.
------------ -------------------------------------
(a) Purchaser shall indemnify, hold harmless and defend Seller from and
against any breach by Purchaser of any representation or warranty
contained herein and all claims, losses, liabilities, demands and
obligations, including reasonable attorneys' fees and expenses, real
estate taxes, intangibles and franchise taxes, sales and use taxes,
social security and unemployment taxes, all accounts payable and
operating expenses (including salaries, rents and utility charges),
which Seller may receive, suffer or incur in connection with
operations and transactions occurring after the Effective Time and
which involve the Banking Centers, the assets transferred or the
liabilities assumed pursuant to this Agreement.
(b) In addition, Purchaser shall indemnify, hold harmless and defend
Seller from and against any and all expenses, claims, losses,
liabilities, demands and obligations, including reasonable attorneys'
fees which Seller may receive, suffer or incur in connection with the
Subsequent Sale.
Section 3.3. Claims for Indemnity.
------------ --------------------
(a) A claim for indemnity under Sections 3.1 or 3.2 of this Agreement
may be made by the claiming party at any time prior to 12 months after the
Effective Time by the giving of written notice thereof to the other party. Such
written notice shall set forth in reasonable detail the basis upon which such
claim for indemnity is made. In the event that any such claim is made within
such prescribed 12 month period, the indemnity relating to such claim shall
survive until such claim is resolved. Claims not made within such 12 month
period shall cease and no indemnity shall be made therefor.
16
(b) In the event that any person or entity not a party to this Agreement
shall make any demand or claim or file or threaten to file any lawsuit,
which demand, claim or lawsuit may result in any liability, damage or loss
to one party hereto of the kind for which such party is entitled to
indemnification pursuant to Section 3.1 or 3.2 hereof, then, after written
notice is provided by the indemnified party to the indemnifying party of
such demand, claim or lawsuit, the indemnifying party shall have the
option, at its cost and expense, to retain counsel for the indemnified
party to defend any such demand, claim or lawsuit. In the event that the
indemnifying party shall fail to respond within five calendar days after
receipt of such notice of any such demand, claim or lawsuit, then the
indemnified party shall retain counsel and conduct the defense of such
demand, claim or lawsuit as it may in its discretion deem proper, at the
cost and expense of the indemnifying party. In effecting the settlement of
any such demand, claim or lawsuit, an indemnified party shall act in good
faith, shall consult with the indemnifying party and shall enter into only
such settlement as the indemnifying party shall approve (the indemnifying
party's approval will be implied if it does not respond within ten calendar
days of its receipt of the notice of such settlement offer).
Section 3.4. Limitations on Indemnification.
------------ ------------------------------
Notwithstanding anything to the contrary contained in this Article III, no
indemnification shall be required to be made by either party until the aggregate
amount of all such claims by a party exceeds $50,000. Once such aggregate amount
exceeds $50,000, such party shall thereupon be entitled to indemnification for
all amounts in excess of such $50,000. IN ADDITION, THE PARTIES SHALL HAVE NO
OBLIGATIONS UNDER THIS ARTICLE III FOR ANY CONSEQUENTIAL LIABILITY, DAMAGE OR
LOSS THE INDEMNIFIED PARTY MAY SUFFER AS THE RESULT OF ANY DEMAND, CLAIM OR
LAWSUIT.
ARTICLE IV
----------
REPRESENTATIONS AND WARRANTIES OF SELLER
----------------------------------------
Seller hereby represents and warrants to Purchaser as follows, which
representations and warranties shall survive the Effective Time for a period of
12 months:
SECTION 4.1. Corporate Organization.
------------ -----------------------
Seller is a national banking association duly organized, validly existing
and in good standing under the laws of the United States. Seller has the
corporate power and authority to own its properties, to carry on its business as
currently conducted and to effect the transactions contemplated herein.
Section 4.2. No Violation.
------------ ------------
The Banking Centers have been operated in all material respects in
accordance with applicable laws, rules and regulations. Neither the execution
and delivery of this Agreement, nor the consummation of the transactions
contemplated herein, will violate or conflict with (a) Seller's Articles of
Association or Bylaws; (b) any material provision of any material agreement or
any other material restriction of any kind to which seller is a party or by
which seller is bound; (c) any material statute, law, decree, regulation or
order of any governmental authority;
17
or (d) any material provision which will result in a default under, or which
cause the acceleration of the maturity of any material obligation or loan to
which Seller is a party.
Section 4.3. Corporate Authority.
------------ -------------------
The execution and delivery of this Agreement, and the consummation of the
transactions contemplated herein, have been duly authorized by Seller's Board of
Directors (or the Executive Committee thereof). No further corporate
authorization is necessary for Seller to consummate the transactions
contemplated hereunder.
Section 4.4. Enforceable Agreement.
------------ ----------------------
This Agreement has been duly authorized, executed and delivered by Seller
and is the legal, valid and binding agreement of Seller, enforceable in
accordance with its terms.
Section 4.5. No Brokers.
------------ ----------
All negotiations relative to this Agreement and the transactions
contemplated hereby have been carried on by Seller and Purchaser, and there has
been no participation or intervention by any other person, firm or corporation
employed or engaged by or on behalf of Seller in such a manner as to give rise
to any valid claim against Seller or Purchaser for a brokerage commission,
finder's fee or like commission.
Section 4.6. Personal Property.
------------ -----------------
Seller owns, and will convey to Purchaser at the Closing, all of Seller's
right, title and interest to all of the Personal Property free and clear of any
claims, mortgages, liens, security interests, pledges or encumbrances of any
kind, except as may otherwise be set forth in this Agreement.
Section 4.7. Real Property.
------------ -------------
Seller makes the following representations regarding the Real Property:
(a) Except as specifically set forth herein, Seller has no knowledge of
any condemnation proceedings pending against the Real Property.
(b) Except as specifically set forth herein or disclosed to Purchaser in
writing within 30 business days after the execution of this Agreement,
Seller has not entered into any agreement regarding the Real Property,
and the Real Property is not subject to any claim, demand, suit, lien,
proceeding or litigation of any kind, pending or outstanding, or to
the knowledge of Seller, threatened or likely to be made or
instituted, which would in any way be binding upon Purchaser or its
successors or assigns or materially affect or limit Purchaser's or its
successors' or assigns' use and enjoyment of the Real Property or
which would materially limit or restrict Purchaser's right or ability
to enter into this Agreement and consummate the sale and purchase
contemplated hereby.
18
(c) Seller has or will have at Closing good and marketable fee simple
title to the Real Property and, at Closing, will own the Real Property
outright subject to no mortgage, pledge, lien, security interest,
lease, charge, encumbrance or conditional sales or other title
retention agreement except for real property taxes not yet due and
payable, and easements and rights of way which do not materially
interfere with the use of the Real Property as a banking center.
Purchaser's sole remedy for a breach of the representations and
warranties in this Section 4.7 shall be to elect not to purchase a
Banking Center as provided in Section 1.10.
Section 4.8. Condition of Property.
------------ ------------ --------
Except as may be otherwise specifically set forth in this Agreement, the
Real Property and Personal Property to be purchased by Purchaser hereunder are
sold AS IS, WHERE IS, with no warranties or representations whatsoever, except
as may be expressly represented or warranted in this Agreement.
Section 4.9. Limitation of Representations and Warranties.
------------ ------------- -------------------------------
Except as may be expressly represented or warranted in this Agreement by
Seller, Seller makes no representations or warranties whatsoever with regard to
any asset being transferred to Purchaser or any liability or obligation being
assumed by Purchaser or as to any other matter or thing.
ARTICLE V
---------
REPRESENTATIONS AND WARRANTIES OF PURCHASER
-------------------------------------------
Purchaser hereby represents and warrants to Seller as follows, which
representations and warranties shall survive the Effective Time for a period of
12 months:
Section 5.1. Corporate Organization.
------------ ----------------------
Purchaser is an Oklahoma banking corporation, duly organized, validly
existing and in good standing under the laws of the state of Oklahoma. Purchaser
has the corporate power and authority to own the properties being acquired, to
assume the liabilities being transferred and to effect the transactions
contemplated herein.
Section 5.2. No Violation.
------------ ------------
Neither the execution and delivery of this Agreement, nor the consummation
of the transactions contemplated herein, will violate or conflict with (a) the
Articles of Incorporation or Bylaws of Purchaser; (b) any material provision of
any material agreement or any other material restriction of any kind to which
Purchaser is a party or by which Purchaser is bound; (c) any material statute,
law, decree, regulation or order of any governmental authority; or (d) any
material provision which will result in a default under, or cause the
acceleration of the maturity of, any material obligation or loan to which
Purchaser is a party.
19
Section 5.3. Corporate Authority.
------------ -------------------
The execution and delivery of this Agreement, and the consummation of the
transactions contemplated herein, have been duly authorized by the Board of
Directors (or Executive Committee) of Purchaser. No further corporate
authorization on the part of Purchaser is necessary to consummate the
transactions contemplated hereunder.
Section 5.4. Enforceable Agreement.
------------ ---------------------
This Agreement has been duly authorized, executed and delivered by
Purchaser and is the legal, valid and binding agreement of Purchaser enforceable
in accordance with its terms.
Section 5.5. No Brokers.
------------ ----------
All negotiations relative to this Agreement and the transactions
contemplated hereby have been carried on by Seller and Purchaser, and there has
been no participation or intervention by any other person, firm or corporation
employed or engaged by or on behalf of Purchaser in such a manner as to give
rise to any valid claim against Seller or Purchaser for a brokerage commission,
finder's fee or like commission.
ARTICLE VI
----------
OBLIGATIONS OF PARTIES PRIOR TO AND AFTER EFFECTIVE TIME
--------------------------------------------------------
Section 6.1. Full Access.
------------ -----------
Seller shall afford to the officers and authorized representatives of
Purchaser upon prior notice and subject to Seller's normal security
requirements, access to the properties, books and records pertaining to the
Banking Centers in order that Purchaser may have full opportunity to make
reasonable investigations, at reasonable times without interfering with the
normal business and operations of the Banking Centers, or the affairs of Seller
relating to the Banking Centers. The officers of Seller shall furnish Purchaser
with one standard set of such additional financial and operating data and other
information as to its business and properties at the Banking Centers, or where
otherwise located, as Purchaser may, from time to time, reasonably request and
as shall be available, including, without limitation, information required for
inclusion in all governmental applications necessary to effect this transaction.
Any additional copies of such information shall be produced and provided at
Purchaser's expense. Nothing in this Section 6.1 shall require Seller to breach
any obligation of confidentiality or to reveal any proprietary information,
trade secrets or marketing or strategic plans. Records, including credit
information, relating to the Loans will be made available for review by
Purchaser no later than 30 calendar days after the execution of this Agreement.
It is understood that certain of Seller's records may be available only in the
form of photocopies, film copies or other non-original and non-paper media.
Section 6.2. Delivery of Magnetic Media Records.
------------ ----------------------------------
Seller shall prepare or cause to be prepared at its expense and make
available to Purchaser at Seller's data processing center magnetic media records
in Seller's field format not later than 60 calendar days after the execution of
this Agreement and further shall make available to Purchaser such records
updated as of the Closing Date, which records shall contain
20
the information related to the items described in Subsections 2.2(b)(6) and
(b)(7) above. Such updated records shall be made available at such time after
Closing as agreed to by the parties. At its option, Seller may provide such
reports in paper format instead of magnetic media format.
Section 6.3. Application for Approval to Effect Purchase of Assets and
------------ ---------------------------------------------------------
Assumption of Liabilities.
-------------------------
Within 30 calendar days following the execution of this Agreement,
Purchaser shall prepare and file applications required by law with the
appropriate regulatory authorities for approval to purchase and assume the
aforesaid assets and liabilities, to establish branches at the locations of the
Banking Centers, and to effect in all other respects the transactions
contemplated herein. Purchaser agrees to process such applications in a diligent
manner and on a priority basis and to provide Seller promptly with a copy of
such applications as filed (except for any confidential portions thereof) and
all material notices, orders, opinions, correspondence and other documents with
respect thereto, and to use its best efforts to obtain all necessary regulatory
approvals. On the date hereof, Purchaser knows of no reason why such
applications should not receive all such approvals. Purchaser shall promptly
notify Seller upon receipt by Purchaser of notification that any application
provided for hereunder has been denied. Seller shall provide such assistance
and information to Purchaser as shall be reasonably necessary for Purchaser to
comply with the requirements of the applicable regulatory authorities.
Section 6.4. Conduct of Business: Maintenance of Properties.
------------ ----------------------------------------------
From the date hereof until the Effective Time, Seller covenants that it
will:
(a) Carry on, or caused to be carried on, the business of the Banking
Centers substantially in the same manner as on the date hereof, use
all reasonable efforts to preserve intact its current business
organization and preserve its business relationships with depositors,
customers and others having business relationships with it and whose
accounts will be retained at the Banking Centers; provided, however,
that Seller need not, in its sole discretion, advertise or promote new
or substantially new customer services in the principal market area of
the Banking Centers;
(b) Cooperate with and assist Purchaser in assuring the orderly
transition of the business of the Banking Centers to Purchaser from
Seller; and
(c) Maintain the Real Property and the Personal Property in its current
condition, ordinary wear and tear excepted.
Section 6.5. No Solicitation by Seller.
------------ -------------------------
For a period of 12 months alter the Effective Time, Seller will not
specifically target and solicit customers of the Banking Centers utilizing any
customer or mailing list which consists primarily of customers of the Banking
Centers; provided, however, these restrictions shall not restrict general mass
mailings, telemarketing calls, statement stuffers and other similar
communications directed to all the current customers of Seller or Seller's
affiliates, or to the public or newspaper, radio or television advertisements of
a general nature or otherwise prevent
21
Seller from taking such actions as may be required to comply with any applicable
federal or state laws, rules or regulations. In addition, these restrictions
shall not restrict (a) the solicitation of (i) customers whose accounts are
normally established or maintained in offices other than the Banking Centers,
(ii) any credit or debit card customer which has an agreement for merchant
services with Seller or Seller's affiliates, including their venture partners
(including Unified Merchant Services); (b) the ability of Seller to install,
operate and serve customers' needs through automated teller machines at any
location; or (c) the solicitation of customers whose accounts are excluded by
either Purchaser or Seller from the transactions contemplated by this Agreement.
Section 6.6 No Solicitation by Purchaser.
----------------------------------------
Purchaser shall not, and shall cause Central National Bank of ▇▇▇▇ not to,
solicit any customer which, at the date hereof has an agreement with Seller or
Seller's venture partner, Unified Merchant Services, for the processing of
customer's credit and debit card transactions and other similar merchant
services (said customers herein referred to as "Merchants") during the term of
any such agreements, including any renewal term thereunder, or otherwise
interfere in any way with Seller or Seller's venture partner, Unified Merchant
Services, relationship with any such Merchant. Notwithstanding the foregoing,
Purchaser at times, or from time to time may solicit such Merchants in
Purchaser's market area as part of Purchaser's general direct marketing program,
or by general solicitations such as newspaper, radio and television
advertisements, as long as the Merchants as a group are not targeted for
solicitation. Purchaser shall be in compliance with the restrictions contained
above provided that (i) before mailing or telephoning, Purchaser or uses its
record of Merchants to eliminate those Merchants from any mailing or telephone
solicitation list of potential customers that comes into Purchaser's control and
from any mailing or telephone solicitation list that is screened by a credit
bureau at Purchaser's direction, directly or indirectly, and (ii) Purchaser does
not otherwise intentionally direct any mailing or telephone solicitation or such
Merchants or any substantial portion thereof. From and after the date of the
Subsequent Sale, Purchaser shall cause Central National Bank of ▇▇▇▇ to observe
the restrictions contained in this Section 6.6, provided that alter the
Subsequent Sale, with respect to the ▇▇▇▇▇▇▇▇ Banking Centers, the exceptions to
the restrictions contained herein shall be apply to Central National Bank of
Alva's market area.
Section 6.7. No Marketing by Purchaser.
----------- --------------------------
(a) Except in connection with the proposal for the Subsequent Sale of the
▇▇▇▇▇▇▇▇ Banking Centers, neither Purchaser nor its representatives
shall market, offer to sell, sell, or enter into any kind of agreement
or arrangement whatsoever with any party other than Seller regarding
the Banking Centers or any asset or liability related thereto prior to
the Effective Time.
(b) (b) Should Purchaser breach this Section 6.7, the payment due under
Section 1.2(a)(2) shall be a premium for the Deposit Liabilities and
franchise value related to the Banking Centers equal to 7.08% of the
Deposit Liabilities as defined in Section 1.3(a) hereof except such
calculation shall assume the amount of Deposit Liabilities on
September 30, 1997, instead of the Effective Date. Seller, moreover,
shall not be precluded from seeking injunctive and other equitable
relief in the event of such breach, it being agreed by the parties
hereto
22
that the money damages agreed to in this Section 6.7(0) are inadequate
to protect Seller in the event of such breach.
Section 6.8. Further Actions.
------------ ---------------
The parties hereto shall execute and deliver such instruments and take such
other actions as the other party may reasonably require in order to carry out
the intent of this Agreement.
Section 6.9. Fees and Expenses.
------------ -----------------
Purchaser shall be responsible for the costs of all title examinations,
title insurance fees, surveys, its own attorneys' and accountants' fees and
expenses, recording costs, transfer fees, documentary stamps, and other expenses
arising in connection therewith. Seller shall be responsible for its own
attorneys' and accountants' fees and expenses related to this transaction.
Section 6.10. Breaches with Third Parties.
------------- ---------------------------
If the assignment of any material claim, contract, license, lease,
commitment, sales order or purchase order (or any material claim or right or any
benefit arising thereunder) without the consent of a third party would
constitute a breach thereof or materially affect the rights of Purchaser or
Seller thereunder, then such assignment is hereby made subject to such consent
or approval being obtained.
Section 6.11. Insurance.
------------- ---------
As of the Effective Time, Seller will discontinue its insurance coverage
maintained in connection with the Banking Center and the activities conducted
thereon. Purchaser shall be responsible for all insurance protection for the
Banking Center's premises and the activities conducted thereon immediately
following the Effective Time. Pending the Closing, risk of loss shall be the
responsibility of Seller.
Section 6.12. Public Announcements.
------------- --------------------
Seller and Purchaser agree that, from the date hereof, neither shall make
any public announcement or public comment, regarding this Agreement or the
transactions contemplated herein without first consulting with the other party
hereto and reaching an agreement upon the substance and timing of such
announcement or comment. Further, Seller and Purchaser acknowledge the
sensitivity of this transaction to the Employees and no announcements or
communications with the public or these Employees shall be made without the
prior approval of Seller.
Section 6.13. Tax Reporting.
------------- -------------
Seller shall comply with all tax reporting obligations in connection with
transferred assets and liabilities on or before the Effective Time, and
Purchaser shall comply with all tax reporting obligations with respect to the
transferred assets and liabilities after the Effective Time.
23
Section 6.14. Subsequent Sale.
------------- ---------------
Notwithstanding anything in this Purchase and Assumption Agreement to the
contrary, no undertaking by Central National Bank of ▇▇▇▇ to observe the
obligations of Purchaser hereunder shall relieve Purchaser of its obligations;
Purchaser shall and shall cause Central National Bank of ▇▇▇▇ to cooperate with
Seller in customer communications and operational issues related to this
transaction and the Subsequent Sale; however, Seller shall have no duty to
communicate directly with Central National Bank of ▇▇▇▇. The failure of
Purchaser and Central National Bank of ▇▇▇▇ to consummate the Subsequent Sale or
any transaction or action related thereto shall not in any way affect
Purchaser's obligation to consummate this Purchase and Assumption Agreement on
the Effective Date.
ARTICLE VII
-----------
CONDITIONS TO PURCHASER'S OBLIGATIONS
-------------------------------------
The obligation of Purchaser to complete the transactions contemplated in
this Agreement are conditioned upon fulfillment, on or before the Closing, of
each of the following conditions:
Section 7.1. Representations and Warranties True.
------------ -----------------------------------
The representations and warranties made by Seller in this Agreement shall
be true in all material respects on and as of the Effective Time as though such
representations and warranties were made at and as of such time, except for any
changes permitted by the terms hereof or consented to by Purchaser.
Section 7.2. Obligations Performed.
------------ ---------------------
Seller shall (a) deliver or make available to Purchaser those items
required by Section 2.2 hereof, and (b) perform and comply in all
material respects with all obligations and agreements required by this Agreement
to be performed or complied with by it prior to or on the Effective Time.
Section 7.3. No Adverse Litigation.
------------ ---------------------
As of the Effective Time, no action, suit or proceeding shall be pending or
threatened against Seller which is reasonably likely to (a) materially and
adversely affect the business, properties and assets of the Banking Centers, or
(b) materially and adversely affect the transactions contemplated herein.
Section 7.4. Regulatory Approval.
------------ -------------------
(a) Purchaser shall have received all necessary regulatory approvals of
the transactions provided in this Agreement, all notice and waiting
periods required by law to pass shall have passed, no proceeding to
enjoin, restrain, prohibit or invalidate such transactions shall have
been instituted or threatened, and any conditions of any regulatory
approval shall have been met.
24
(b) Such approvals shall not have imposed any condition which is
materially disadvantageous or burdensome to Purchaser.
ARTICLE VIII
------------
CONDITIONS TO SELLER'S OBLIGATIONS
----------------------------------
The obligation of Seller to complete the transactions contemplated in this
Agreement are conditioned upon fulfillment, on or before the Closing, of each
of the following conditions:
Section 8.1 Representations and Warranties True.
----------- -----------------------------------
The representations and warranties made by Purchaser in this Agreement
shall be true in all material respects at and as of the Effective Time as though
such representations and warranties were made at and as of such time, except for
any changes permitted by the terms hereof or consented to by Seller.
Section 8.2. Obligations Performed.
------------ ---------------------
Purchaser shall (a) deliver to Seller those items required by Section 2.2
hereof, and (b) perform and comply in all material respects with all obligations
and agreements required by this Agreement to be performed or complied with by it
prior to or on the Effective Time.
Section 8.3. No Adverse Litigation.
------------ ---------------------
As of the Effective Time, no action, suit or proceeding shall be pending or
threatened against Purchaser or Seller which might materially and adversely
affect the transactions contemplated hereunder.
Section 8.4. Regulatory Approval.
------------ --------------------
(a) Purchaser shall have received from the appropriate regulatory
authorities approval of the transactions contemplated herein, waiting
periods required by law to pass shall have passed, no proceeding to
enjoin, restrain, prohibit or invalidate such transactions shall have
been instituted or threatened, and any conditions of any regulatory
approval shall have been met.
(b) Such approvals shall not have imposed any condition which is
materially disadvantageous or burdensome to Seller.
ARTICLE IX
----------
TERMINATION
-----------
Section 9.1. Methods of Termination.
------------ ---------- -----------
This Agreement may be terminated in any of the following ways:
25
(a) by either Purchaser or Seller, in writing five calendar days in
advance of such termination, if the Closing has not occurred by March
31,1998;
(b) at any time on or prior to the Effective Time by the mutual consent in
writing of Purchaser and Seller;
(c) by Purchaser in writing if the conditions set forth in Article VII of
this Agreement shall not have been met by Seller or waived in writing
by Purchaser within 31 calendar days following the date of all
approvals by regulatory agencies and alter all statutory waiting
periods have expired;
(d) by Seller in writing if the conditions set forth in Article VIII of
this Agreement shall not have been met by Purchaser or waived in
writing by Seller within 31 calendar days following the date of all
approvals by regulatory agencies and after all statutory waiting
periods have expired;
(e) any time prior to the Effective Time, by Purchaser or Seller in
writing if the other shall have been in breach of any representation
and warranty in any material respect (as if such representation and
warranty had been made on and as of the date hereof and on the date of
the notice of breach referred to below), or in breach of any covenant,
undertaking or obligation contained herein, and such breach has not
been cured by the earlier of 30 calendar days after the giving of
notice to the breaching party of such breach or the Effective Time;
provided, however that there shall be no cure period in connection
with any breach of (x) Section 6.3 hereof, so long as such breach by
Purchaser was not caused by any action or inaction of Seller, and
Seller may terminate this Agreement immediately if regulatory
applications are not filed within 30 calendar days after the date of
this Agreement as provided in that Section or (y) Section 6.7(a);
(f) by Seller in writing at any time after any applicable regulatory
authority has denied approval of any application of Purchaser for
approval of the transactions contemplated herein; or
(g) in accordance with Section 1.10 hereof.;
Section 9.2. Procedure Upon Termination.
------------ --------------------------
In the event of termination pursuant to Section 9.1 hereof, and except as
otherwise stated therein, written notice thereof shall be given to the
other party, and this Agreement shall terminate immediately upon receipt of
such notice unless an extension is consented to by the party having the
right to terminate.
If this Agreement is terminated as provided herein,
(a) each party will return all documents, work papers and other materials
of the other party, including photocopies or other duplications
thereof, relating to this transaction, whether obtained before or
after the execution hereof, to the party furnishing the same; and
26
(b) all information received by either party hereto with respect to the
business of the other party (other than information which is a matter
of public knowledge or which has heretofore been published in any
publication for public distribution or filed as public information
with any governmental authority) shall not at any time be used for any
business purpose by such party or disclosed by such party to third
persons.
Section 9.3. Payment of Expenses.
------------ -------------------
Should the transactions contemplated herein not be consummated because
of a party's breach of this Agreement, in addition to such damages as may be
recoverable in law or equity, the other party shall be entitled to recover from
the breaching party upon demand, itemization and documentation, its reasonable
outside legal, accounting, consulting and other out-of-pocket expenses.
ARTICLE X
---------
MISCELLANEOUS PROVISIONS
------------------------
SECTION 10.1. AMENDMENT AND MODIFICATION.
------------- --------------------------
The parties hereto, by mutual consent of their duly authorized
officers, may amend, modify and supplement this Agreement in such manner as may
be agreed upon by them in writing.
Section 10.2. Waiver or Extension.
------------- -------------------
Except with respect to required approvals of the applicable
governmental authorities, either party, by written instrument signed by a duly
authorized officer, may extend the time for the performance of any of the
obligations or other acts of the other party and may waive (a) any inaccuracies
in the representations and warranties contained herein or in any document
delivered pursuant hereto or (b) compliance with any of the undertakings,
obligations, covenants or other acts contained herein.
Section 10.3. Assignment.
------------- -----------
This Agreement and all of the provisions hereof shall be binding upon,
and shall inure to the benefit of, the parties hereto and their permitted
assigns, but neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by either of the parties hereto without
the prior written consent of the other. Notwithstanding the foregoing,
assignment by operation of law resulting from Seller's merger with an Affiliated
bank will not be prohibited by this section.
Section 10.4. Confidentiality.
------------- ---------------
Seller and Purchaser agree that the Confidentiality Agreement dated
August 4, 1997, between Seller and Purchaser (the "Confidentiality Agreement")
shall survive the execution hereof and the consummation of the transactions
contemplated herein.
27
Section 10.5. Addresses for Notices, Etc.
------------- --------------------------
All notices, requests, demands, consents and other communications
provided for hereunder and under the related documents shall be in writing and
mailed (by registered or certified mail, return receipt requested), telegraphed,
telexed, telecopied or personally delivered (with receipt thereof acknowledged)
to the applicable party at the address indicated below:
If to Seller: NationsBank, NA
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, EVP
Fax: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
If to Purchaser: BancFirst
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Fax: (▇▇▇)▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & Associates
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Fax: (▇▇▇)▇▇▇-▇▇▇▇
on, as to each party, at such other address as shall be designated by such party
in a written notice to the other party complying as to delivery with the terms
of this Section.
Section 10.6. Counterparts.
------------- ------------
This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
28
Section 10.7. Headings.
------------- --------
The headings of the Sections and Articles of this Agreement are
inserted for convenience only and shall not constitute a part thereof.
Section 10.8. Governing Law.
------------- -------------
This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Oklahoma.
Section 10.9. Sole Agreement.
------------- --------------
Except for the Confidentiality Agreement, this Agreement and the
exhibits and attachments hereto represent the sole agreement between the parties
hereto respecting the transactions contemplated hereby and all prior or
contemporaneous written or oral proposals, agreements in principle,
representations, warranties and understandings between the parties with respect
to such matters are superseded hereby and merged herein.
Section 10.10. Severability.
-------------- ------------
If any provision of this Agreement is invalid or unenforceable, the
balance of this Agreement shall remain in effect.
Section 10.11. Parties In Interest.
-------------- -------------------
Nothing in this Agreement, express or implied, expressly including,
without limiting the generality of the foregoing in any way, the provisions of
Section 1.6(a) hereof, all provisions related to furnishing of information by
Seller to Purchaser, and all provisions related to Closing, is intended or shall
be construed to confer upon or give to any person (other than the parties
hereto, their successors and permitted assigns) any rights or remedies under or
by reason of this Agreement, or any term, provision, condition, undertaking,
warranty, representation, indemnity, covenant or agreement contained herein.
29
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their duly authorized officers as of the date first written
above.
ATTEST: NATIONSBANK, N.A.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------- -----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------- ---------------------------
Title: Assistant Vice President Title: Executive Vice President
-------------------------- --------------------------
ATTEST: BANCFIRST
/s/ ▇▇▇ ▇. Shrikley, Jr. By: /s/ ▇▇▇▇▇ Rainbert
-------------------------------- -----------------------------
Name: ▇▇▇ ▇. Shrikley, Jr. Name: ▇▇▇▇▇ Rainbert
--------------------------- ---------------------------
Title: Executive Vice President Title: CEO
-------------------------- --------------------------
30
PURCHASE AND ASSUMPTION AGREEMENT
BETWEEN
NATIONSBANK, N.A
AND
BANCFIRST
EXHIBIT LIST
EXHIBIT No. DESCRIPTION
----------- -----------
1.1(b) List of Excluded Assets
1.4(b) List of Loans
1.4(k) Power of Attorney
1.6(c) Severance Benefits
2.2(b)(2) Form of ▇▇▇▇ of Sale
2.2(b)(3) Form of Assignment and
Assumption Agreement
2.2(b)(14) Form of Closing Statement
31
EXHIBIT 1.1(B)
-------------
PURCHASE AND ASSUMPTION AGREEMENT
BETWEEN
NATIONSBANK, N.A.
AND
BANCFIRST
LIST OF EXCLUDED ASSETS
Artwork in the Banking Centers
Nonconforming equipment, including computer equipment
EXHIBIT 1.4(B)
-------------
PURCHASE AND ASSUMPTION AGREEMENT
BETWEEN
NATIONSBANK, N.A.
AND
BANCFIRST
LIST OF EXCLUDED LOANS
(See the attached list.)
Exhibit 1.4(b)
-----------------------------------------------------------------------------------------------------------
Customer Customer Note Current Previous Current Commitment
-----------------------------------------------------------------------------------------------------------
Name Number Number Cost Ctr Cost Ctr Balance Balance
-----------------------------------------------------------------------------------------------------------
AJ Acid, Inc 3001962 9908 8450 8451 25,163.51 25,163.51
-----------------------------------------------------------------------------------------------------------
AJ Acid, Inc 3001962 9908 8450 8451 23,984.99 23,984.99
-----------------------------------------------------------------------------------------------------------
Acid, Inc 5100631 0100 8450 8451 75.76 50,000.00
-----------------------------------------------------------------------------------------------------------
Acid, Inc 5100631 9003 8450 8451 5,270.18 5,270.18
-----------------------------------------------------------------------------------------------------------
Acid, Inc 5100631 9004 8450 8451 18,988.46 18,988.46
-----------------------------------------------------------------------------------------------------------
Acid, Inc 5100631 9005 8450 8451 8,222.47 8,222.47
-----------------------------------------------------------------------------------------------------------
Acid, Inc 5100631 9007 8450 8451 18,544.59 18,544.59
-----------------------------------------------------------------------------------------------------------
Acid, Inc 5100631 9008 8450 8451 20,792.31 20,792.31
-----------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇ 5123674 9001 8450 8451 50,001.00 107,050.00
-----------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇ 5123682 9001 8450 8451 83,540.51 83,540.51
-----------------------------------------------------------------------------------------------------------
▇▇▇▇▇, ▇▇▇ 5188792 0001 8450 8451 42,060.00 50,065.00
-----------------------------------------------------------------------------------------------------------
▇▇▇▇▇, ▇▇▇ 5188792 0099 8450 8451 sec LTMC 50,085.00
-----------------------------------------------------------------------------------------------------------
▇▇▇▇▇, ▇▇▇ 5188792 9002 8450 8451 118,984.80 118,984.80
-----------------------------------------------------------------------------------------------------------
▇▇▇▇▇, ▇▇▇/▇▇▇▇▇ 518808 9001 8450 8451 668.72 668.72
-----------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇, ▇▇▇▇ 5240638 9001 8450 8451 44,512,88 44,512,88
-----------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇ Oil Company 5240727 9003 8450 8451 0.00 65,100.00
-----------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇ Oil Company 5240727 9004 8450 8451 70,945.35 70,945.35
-----------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇ Oil Company 5240727 9006 8450 8451 83,190.18 83,190.18
-----------------------------------------------------------------------------------------------------------
▇▇▇▇▇ Oil Company 5189799 9001 8450 8451 100,000.00 100,000.00
-----------------------------------------------------------------------------------------------------------
▇▇▇▇▇, Slave 5189810 9001 8450 8451 10,540.81 19,640.81
-----------------------------------------------------------------------------------------------------------
▇▇▇▇▇, ▇▇▇▇ 5189764 9001 8450 8451 2,533.90 2,533.90
-----------------------------------------------------------------------------------------------------------
South Haven LP 5254000 9001 8450 8451 85,000.00 100,000.00
-----------------------------------------------------------------------------------------------------------
South Haven LP 5254000 9002 8450 8451 322,023.56 322,023.56
-----------------------------------------------------------------------------------------------------------
Audio Innovations 5106133 9001 9050 9050 355,000.00 1,000,000.00
-----------------------------------------------------------------------------------------------------------
Audio Innovations 5106133 9002 9060 9060 14,967.93 14,967.93
-----------------------------------------------------------------------------------------------------------
Audio Innovations 5106133 9003 8450 9050 378,837.97 378,837.97
-----------------------------------------------------------------------------------------------------------
H E Heritage PS 5166942 9001 8450 9050 1,549,167.40 1,549,187.40
-----------------------------------------------------------------------------------------------------------
H E Heritage PS 5160985 9001 8450 9050 1,549,167.40 1,549,187.40
-----------------------------------------------------------------------------------------------------------
H E Heritage Inn 5172276 9001 8450 9050 1,484,548.19 1,484,646.18
-----------------------------------------------------------------------------------------------------------
Midwest Heritage 5211441 9001 8450 9050 1,389,168.69 1,369,166.69
-----------------------------------------------------------------------------------------------------------
Midwest Heritage 5211408 9001 8450 9050 1,680,009.15 1,680,009.15
-----------------------------------------------------------------------------------------------------------
Midwest Heritage 5211476 9001 8450 9050 1,360,555.58 1,360,555.58
-----------------------------------------------------------------------------------------------------------
Midwest Heritage 5211484 9001 8450 9050 1,475,555.54 1,475,555.54
-----------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------
--------------------------------------------------------------------------
Comments
--------------------------------------------------------------------------
AJ Acid, Inc
--------------------------------------------------------------------------
AJ Acid, Inc
--------------------------------------------------------------------------
Acid, Inc
--------------------------------------------------------------------------
Acid, Inc
--------------------------------------------------------------------------
Acid, Inc
--------------------------------------------------------------------------
Acid, Inc
--------------------------------------------------------------------------
Acid, Inc
--------------------------------------------------------------------------
Acid, Inc
--------------------------------------------------------------------------
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇ Loan was made by FEK while in Blackwell
--------------------------------------------------------------------------
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇ This loan has always been in Ponca
--------------------------------------------------------------------------
▇▇▇▇▇, ▇▇▇
--------------------------------------------------------------------------
▇▇▇▇▇, ▇▇▇ This is used to 0001, but needs to be 8450
--------------------------------------------------------------------------
▇▇▇▇▇, ▇▇▇
--------------------------------------------------------------------------
▇▇▇▇▇, ▇▇▇/▇▇▇▇▇
--------------------------------------------------------------------------
▇▇▇▇▇▇, ▇▇▇▇ President/owner of ▇▇▇▇▇▇ OH Co.
--------------------------------------------------------------------------
▇▇▇▇▇▇ Oil Comapny
--------------------------------------------------------------------------
▇▇▇▇▇▇ Oil Comapny
--------------------------------------------------------------------------
▇▇▇▇▇▇ Oil Comapny
--------------------------------------------------------------------------
▇▇▇▇▇ Oil Company
--------------------------------------------------------------------------
▇▇▇▇▇, Slave President/owner of ▇▇▇▇▇ Oil Co.
--------------------------------------------------------------------------
▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇'▇ & Son
--------------------------------------------------------------------------
South Haven LP ▇▇▇▇▇ ▇▇▇▇▇'▇ & ▇▇▇▇ ▇▇▇▇▇▇▇ partownership
--------------------------------------------------------------------------
South Haven LP ▇▇▇▇▇ ▇▇▇▇▇'▇ & ▇▇▇▇ ▇▇▇▇▇▇▇ partownership
--------------------------------------------------------------------------
Audio Innovations Want to change to 8450 Ponca
--------------------------------------------------------------------------
Audio Innovations Want to change to 8450 Ponca
--------------------------------------------------------------------------
Audio Innovations Want to change to 8450 Ponca
--------------------------------------------------------------------------
H E Heritage PS 100% participated to Liborty
--------------------------------------------------------------------------
H E Heritage PS 100% participated to Liborty
--------------------------------------------------------------------------
H E Heritage Inn
--------------------------------------------------------------------------
Midwest Heritage
--------------------------------------------------------------------------
Midwest Heritage
--------------------------------------------------------------------------
Midwest Heritage
--------------------------------------------------------------------------
Midwest Heritage
--------------------------------------------------------------------------
EXHIBIT 1.4(K)
-------------
PURCHASE AND ASSUMPTION AGREEMENT
BETWEEN
NATIONSBANK, N.A
AND
BANCFIRST
POWER OF ATTORNEY
THIS POWER OF ATTORNEY is dated this __________ day of_____ 1998, by
NationsBank, N.A., a national banking association ("Seller"), to be effective as
of 2:00 p.m. on ___________________, 199___.
W I T N E S S E T H:
-------------------
WHEREAS, Seller and BancFirst("Purchaser") have entered into a Purchase
and Assumption Agreement dated as of __________, 199__ (the "Agreement"), which
provides for the sale by Seller to Purchaser of certain personal property; and
WHEREAS, in a ▇▇▇▇ of Sale to Purchaser dated _________, 199___ (the "▇▇▇▇
of Sale"), Seller has agreed, from time to time, at the request of Purchaser to
execute, acknowledge and deliver to Purchaser any and all instruments,
documents, endorsements, assignments, information, materials and other papers
that may be reasonably required to (i) transfer to Purchaser certain Assets (as
defined in the ▇▇▇▇ of Sale) being acquired by Purchaser pursuant to the
Agreement, including loans and the collateral therefor to the extent of Seller's
interest in such collateral and files and records relating to such loans, (ii)
enable Purchaser to ▇▇▇▇, collect, service and administer the loans transferred
thereby and (iii) give full force and effect to the intent and purpose of the
▇▇▇▇ of Sale.
NOW, THEREFORE, for good and valuable consideration, receipt of which is
hereby acknowledged, Seller hereby irrevocably appoints and authorizes the
President or any Vice President, or the Secretary or any Assistant Secretary, of
Purchaser as its attorney-in-fact solely for the purpose of endorsing and
recording, pursuant to the ▇▇▇▇ of Sale, certificates of title for vehicles and
similar documents, provided, such power of attorney is not intended to and does
--------
not convey to Purchaser any right to endorse or record any documents of title
relating to collateral other than collateral transferred pursuant to the ▇▇▇▇ of
Sale as described in the preceding paragraph.
IN WITNESS WHEREOF, Seller has caused this Power of Attorney to be duly
executed by its duly authorized officer as of the day and year first above
written.
WITNESSES: NATIONSBANK, NA.
______________________________ By: __________________________
__________________________
______________________________ Its: __________________________
STATE OF________ )
)
COUNTRY OF ____________)
Before me, the undersigned Notary Public, in and for the State and
County aforesaid, duly commissioned, qualified and acting, personally appeared
______________________, with whom I am personally acquainted (or proved to me on
the basis of satisfactory evidence), and who, upon oath, acknowledged
him/herself to be ______________________ of NationsBank, N.A., a national
banking association, and she, as such officer, being authorized so to do,
executed the foregoing instrument for the purposes therein contained by signing
the name of the association by him/herself as such officer
WITNESS my hand and official seal of office at ___________________,
__________ County,_____________, this the ____ day of ____________, 199___.
______________________________________
Notary Public
My commission expires:__________________
EXHIBIT 1.6(C)
-------------
PURCHASE AND ASSUMPTION AGREEMENT
BETWEEN
NATIONSBANK, N.A.
AND
BANCFIRST
SEVERANCE BENEFITS
A PAYMENT EQUAL TO TWO WEEKS OF BASE SALARY FOR EACH YEAR OF
COMPLETED SERVICE, WITH A MAXIMUM OF 26 WEEKS.
EXHIBIT 2.2(B)(2)
----------------
PURCHASE AND ASSUMPTION AGREEMENT
BETWEEN
NATIONSBANK, NA
AND
BANCFIRST
▇▇▇▇ OF SALE
THIS ▇▇▇▇ OF SALE is dated this _____ day of____________, 199__, by
NationsBank, N.A., a national banking association ("Seller").
W I T N E S S E T H:
-------------------
WHEREAS, Seller and BancFirst, an Oklahoma banking corporation
("Purchaser"), have entered into a Purchase and Assumption Agreement dated as of
______________, 199___ (the "Agreement"), which provides for the sale by Seller
to Purchaser of certain personal property and loans related to Seller's offices
located at
BARTLESVILLE - ▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇
BLACKWELL MAIN - ▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇
BLACKWELL DRIVE-IN - ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇
BRAMAN - ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇
BRAMAN ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ - ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇
CUSHING - ▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇
GUTHRIE - ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇
KAW CITY - ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇
PERRY - ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇
SHIDLER - ▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇
STILLWATER - ▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇
WOODWARD MAIN - ▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇▇ DRIVE-IN - ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇
(the "Banking Centers"), all as set forth in the Agreement;
NOW, THEREFORE, Seller, for good and valuable consideration, receipt of
which is hereby acknowledged, does hereby grant, bargain, sell, assign, set
over, convey and transfer to Purchaser all of its right, title and interest in
and to the following assets (the "Assets"):
(a) All furniture, fixtures, equipment and other tangible personal
property located in the Banking Centers, except for those items listed
in Exhibit 1.1(b) of the Agreement;
(b) All of the loans maintained, serviced and listed in Seller's general
ledger as loans of the Banking Centers (except for those loans
described in Section 1.4(b) of the Agreement), a list of such
specific loans to be attached hereto on the Post-Closing Balance Sheet
Delivery Date (the "Loans"); and
(c) All of Seller's files and records related to the Loans and the
Equipment Leases, Deposit Liabilities and other liabilities (as such
terms are defined or described in the Agreement).
Seller, for itself and its successors and assigns, does hereby covenant and
agree to and with Purchaser and its successors and assigns that it (i) is seized
of, and has the right to convey to Purchaser, such title to the Assets as is
provided in the Agreement, (ii) will warrant and defend said title to the Assets
in the manner provided in the Agreement, and (iii) shall, from time to time, at
the request of Purchaser, execute, acknowledge and deliver to Purchaser any and
all further instruments, documents, endorsements, assignments, information,
materials and other papers that may be reasonably required to transfer the
Assets to Purchaser, to enable Purchaser to ▇▇▇▇, collect, service and
administer the Loans and to give full force and effect to the full intent and
purposes of this ▇▇▇▇ of Sale.
IN WITNESS WHEREOF, Seller has caused this ▇▇▇▇ of Sale to be duly executed
by its duly authorized officers and its corporate seal to be affixed hereto, all
as of the day and year first above written.
NATIONSBANK N.A.
By: __________________________
Name: ________________________
Title: _______________________
ATTEST:
________________________
______________ Secretary
EXHIBIT 2.2(B)(3)
----------------
PURCHASE AND ASSUMPTION AGREEMENT
BETWEEN
NATIONSBANK, N.A.
AND
BANCFIRST
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT is entered into this ___ day
of______________ , 199___, by and between, NationsBank, N.A., a national banking
association ("Seller"), and BancFirst, an Oklahoma banking corporation
("Purchaser").
W I T N E S S E T H:
-------------------
WHEREAS, Seller and Purchaser have entered into a Purchase and Assumption
Agreement dated as of________,199__ (the "Agreement"), which provides for the
assignment by Seller of all of its rights and interests in and to certain
leases, contracts, deposit accounts and other liabilities related to Seller's
offices located at
BARTLESVILLE - ▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇
BLACKWELL MAIN - ▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇
BLACKWELL DRIVE-IN - ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇
BRAMAN - ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇
BRAMAN ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ - ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇
CUSHING - ▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇
GUTHRIE - ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇
KAW CITY - ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇
PERRY - ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇
SHIDLER - ▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇
STILLWATER - ▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇
WOODWARD MAIN - ▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇▇ DRIVE-IN - ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇
(the "Banking Centers"), and the assumption by Purchaser of all of Seller's
liabilities and obligations thereunder, all as set forth in the Agreement;
NOW, THEREFORE, in consideration of the foregoing, and for other good and
valuable consideration, receipt of which is hereby acknowledged by Seller and
Purchaser, Seller hereby assigns, transfers and sets over to Purchaser all of
Seller's rights and interest to, and Purchaser does hereby assume all of
Seller's liabilities and obligations in connection with, the following assets
(the "Assets");
(a) All equipment leases for equipment located at the Banking Centers (the
"Equipment Leases");
(b) All deposit accounts located at the Banking Centers, except for those
deposit accounts and liabilities described in Section 1.3(b) of the
Agreement (the "Deposit Liabilities");
(c) Safe Deposit Contracts; and
(d) Real Property Leases.
This Assignment and Assumption Agreement shall be binding upon, and shall
inure to the benefit of, Seller, Purchaser, and each of their successors and
assigns and shall be subject to the terms and conditions of the Agreement In the
event of a conflict between any of the terms and provisions hereof and the
Agreement, the Agreement shall be deemed to control.
This Assignment and Assumption Agreement, and the rights and obligations of
the parties hereunder, shall be governed by and construed in accordance with the
laws of the State of Oklahoma.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Assumption Agreement to be executed by their duly authorized officers and their
corporate seals to be affixed hereto, all as of the day and year first above
written.
ATTEST: NATIONSBANK, N.A.
_____________________________ By:___________________________
Name: _______________________ Name:_________________________
Title: ______________________ Title_________________________
ATTEST: BANCFIRST
_____________________________ By: __________________________
Name: _______________________ Name: ________________________
Title: ______________________ Title:________________________
EXHIBIT 2.2(B)(14)
-----------------
PURCHASE AND ASSUMPTION AGREEMENT
BETWEEN
NATIONSBANK, N.A.
AND
BANCFIRST
CLOSING STATEMENT
(PRE-CLOSING BALANCE SHEET AS OF________)
CASH DUE PURCHASER FOR:
Deposit liability (including
accrued interest) _____________
Pro rata safe deposit box rental _____________
Pro rata real property taxes _____________
Deed stamps _____________
Total Cash due Purchaser _____________
CASH DUE SELLER FOR:
Real and Personal Property _____________
Coins and currency _____________
Premium on deposits _____________
Loans and other assets
(including accrued interest) _____________
Pro rata FDIC insurance _____________
Total Cash due Seller _____________
Net cash due (Purchaser) (Seller) _____________
Seller hereby approves the Closing Statement and acknowledges receipt of
the total cash due Seller. Purchaser hereby approves the Closing Statement,
acknowledges receipt of the net cash due Purchaser and assumes liability for
payment of all taxes and other expenses as provided for in the Purchase and
Assumption Agreement between Seller and Purchaser dated as of ______________,
199___ (the "Agreement"). Seller and Purchaser agree to make subsequent
adjustments to the extent necessary in accordance with Section 2.3 of the
Agreement.
NATIONSBANK, N.A.
By: ____________________________________
Name: __________________________________
Title: _________________________________
Date: __________________________________
BANCFIRST
By: ____________________________________
Name: __________________________________
Title: _________________________________
Date: __________________________________