EXHIBIT 2.1
OFFICE PURCHASE AND ASSUMPTION AGREEMENT
BY AND BETWEEN
BLACKHAWK STATE BANK
AND
THE FIRST NATIONAL BANK AND TRUST COMPANY OF ▇▇▇▇▇▇▇▇
DATED AS OF THE 22ND DAY OF JUNE, 2004
TABLE OF CONTENTS
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PAGE
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ARTICLE I PURCHASE AND ASSUMPTION ........................................1
1.1 Purchase and Sale of Assets ....................................1
1.2 Transfer of Assets .............................................1
1.3 Acceptance and Assumption ......................................3
1.4 Payment of Funds ...............................................4
ARTICLE II CONDUCT OF THE PARTIES PRIOR TO CLOSING ........................6
2.1 Covenants of SELLER ............................................6
2.2 Covenants of BUYER ............................................10
2.3 Covenants of All Parties ......................................11
ARTICLE III REPRESENTATIONS AND WARRANTIES ................................11
3.1 Representations and Warranties of SELLER ......................11
3.2 Representations and Warranties of BUYER .......................15
ARTICLE IV ACTIONS RESPECTING EMPLOYEES AND PENSIONS AND
EMPLOYEE BENEFIT PLANS ........................................17
4.1 Employment of Employees. ......................................17
4.2 Terms and Conditions of Employment ............................17
4.3 Compliance with Law ...........................................19
4.4 Actions to be Taken by SELLER .................................19
ARTICLE V CONDITIONS PRECEDENT TO CLOSING ...............................19
5.1 Conditions to SELLER's Obligations ............................19
5.2 Conditions to BUYER's Obligations .............................20
5.3 Non-Satisfaction of Conditions Precedent ......................21
5.4 Waivers of Conditions Precedent ...............................22
ARTICLE VI CLOSING .......................................................22
6.1 Closing and Closing Date ......................................22
6.2 SELLER's Actions at Closing ...................................22
6.3 BUYER's Actions at the Closing ................................23
6.4 Methods of Payment ............................................24
6.5 Effectiveness of Closing ......................................24
ARTICLE VII CERTAIN TRANSITIONAL MATTERS ..................................25
7.1 Transitional Action by BUYER ..................................25
7.2 Transitional Actions by SELLER ................................26
7.3 ATMs and Debit Cards. .........................................29
7.4 Environmental Matters. ........................................29
7.5 Effect of Transitional Action .................................30
ARTICLE VIII GENERAL COVENANTS AND INDEMNIFICATION .........................30
8.1 Confidentiality Obligations of BUYER ..........................30
8.2 Confidentiality Obligations of SELLER .........................31
8.3 Indemnification by SELLER .....................................31
8.4 Indemnification by BUYER ......................................32
8.5 Termination of Representations and Warranties .................33
8.6 Solicitation of Customers by BUYER Prior to Closing ...........33
8.7 Solicitation of Customers by SELLER After the Closing .........33
8.8 Further Assurances ............................................34
8.9 Operation of the Offices ......................................34
8.10 Information After Closing .....................................34
8.11 Individual Retirement Accounts ................................35
8.12 Covenant Not to Compete; Covenant Not to Sell Loans............35
8.13 Non-solicitation of Employees .................................35
ARTICLE IX TERMINATION ...................................................36
9.1 Termination by Mutual Agreement ...............................36
9.2 Termination by SELLER .........................................36
9.3 Termination by BUYER ..........................................37
9.4 Effect of Termination .........................................37
ARTICLE X MISCELLANEOUS PROVISIONS ......................................38
10.1 Expenses ......................................................38
10.2 Certificates ..................................................38
10.3 Waivers .......................................................38
10.4 Notices .......................................................38
10.5 Parties in Interest; Assignment; Amendment ....................39
10.6 Headings ......................................................39
10.7 Terminology ...................................................40
10.8 Severability ..................................................41
10.9 Flexible Structure ............................................42
10.10 Press Releases ................................................42
10.11 Entire Agreement ..............................................42
10.12 Governing Law .................................................42
10.13 Counterparts ..................................................42
10.14 Tax Matters....................................................42
SCHEDULES ...............................................................44
OFFICE PURCHASE AND ASSUMPTION AGREEMENT
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This OFFICE PURCHASE AND ASSUMPTION AGREEMENT (the "AGREEMENT") made
and entered into this 22nd day of June, 2004, by and between The First National
Bank and Trust Company of ▇▇▇▇▇▇▇▇, a national banking association with its
principal office at ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
("BUYER"), and Blackhawk State Bank, a Wisconsin banking corporation with its
principal office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("SELLER").
WHEREAS, BUYER desires to purchase and assume from SELLER, and SELLER
desires to sell and assign to BUYER, certain assets and liabilities associated
with offices of SELLER as hereinafter described;
NOW THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, BUYER and SELLER hereby agree as follows:
ARTICLE I
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PURCHASE AND ASSUMPTION
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1.1 PURCHASE AND SALE OF ASSETS. At the Closing, as defined in
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SECTION 6.1 hereof (the "CLOSING"), BUYER shall purchase and acquire, and
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SELLER shall sell and assign, the real estate and other assets described in
SECTION 1.2 hereof (collectively, the "ASSETS") all of
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which are used in and/or relate to business conducted by SELLER at and
attributable to its branch offices known as and located at the sites described
in SCHEDULE A attached hereto and incorporated herein by reference, pursuant
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to the terms and conditions set forth herein and subject to exceptions, if any,
set forth herein. The foregoing offices are hereinafter sometimes collectively
referred to as the "OFFICES" and each, individually, sometimes as an "OFFICE."
The transactions contemplated by this Agreement and the purchase of assets and
assumption of liabilities provided for herein are sometimes referred to herein
as the "ACQUISITION." Except as otherwise expressly provided herein, the sale of
the Assets is without warranty or guarantee, express or implied, on an "as-is,
where-is" basis, and without recourse.
1.2 TRANSFER OF ASSETS. Subject to the terms and conditions of this
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Agreement, SELLER shall assign, transfer, convey and deliver (or cause to be
assigned, transferred, conveyed and delivered) to BUYER, on and as of the
Closing Date, the Assets, which shall include the following:
(a) OWNED REAL ESTATE. All of SELLER's right, title and
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interest in and to the real estate described in attached SCHEDULE A on which
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each Office is situated, together with all of SELLER's rights in and to all
improvements thereon; and all easements, rights, privileges and appurtenances
associated therewith (the "OWNED REAL ESTATE"). SCHEDULE A specifically
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identifies the Owned Real Estate by street address, legal description and/or tax
parcel number and does not include any adjacent properties unless clearly set
forth in SCHEDULE A at the time of execution of this Agreement;
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(b) FURNITURE, FIXTURES AND EQUIPMENT. All of SELLER's right,
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title and interest in and to the furniture, fixtures and equipment, including
any automatic teller machines ("ATMS"), located at the Offices as of the Closing
Date (the "FIXED ASSETS"), a preliminary listing of which is contained in
SCHEDULE B attached hereto and incorporated herein by reference, specifically
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excluding, among other items, computers and computer-related equipment, teller
calculators and other teller and platform equipment and systems, CRTs,
controllers and printers, network communications equipment and related devices,
any artwork, ATM surrounds, signs and stands, printed supplies and documents and
other materials bearing any SELLER or affiliate name and/or logo and marketing
fixtures. A final listing of specific items included in the Fixed Assets will
be provided to BUYER prior to the Closing;
(c) SAFE DEPOSIT BUSINESS. All right, title and interest of
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SELLER in and to the safe deposit business (subject to the allocation of safe
deposit rental payments as provided in SECTION 1.3(C)(II) hereof) conducted at
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the Offices as of the close of business on the Closing Date;
(d) CASH ON HAND. All cash on hand at the Offices as of the
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close of business on the Closing Date, including, but not limited to, vault
cash, ▇▇▇▇▇ cash, ATM cash, and tellers' cash;
(e) PREPAID EXPENSES. All prepaid expenses recorded or
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otherwise reflected on the books of SELLER as at March 31, 2004, a preliminary
listing of which is contained in SCHEDULE C attached hereto and incorporated
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herein by reference, or incurred in the ordinary course of business thereafter,
as being attributable to the Offices as of the close of business on the day
immediately preceding the Closing Date, but only to the extent attributable to
the Assets sold, assigned or transferred to BUYER by SELLER pursuant to this
Agreement and only to the extent arising by reason of BUYER's use or ownership
of such Assets after the close of business on the Closing Date;
(f) RECORDS OF THE OFFICES. All records and documents related
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to the Assets transferred or liabilities assumed by BUYER as may exist and are
available and maintained at the Offices (in whatever form or medium then
maintained by SELLER), including, but not limited to, those relating to the
Deposit Accounts.
(g) CONTRACTS OR AGREEMENTS. All of SELLER's right, title and
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interest in and to the maintenance and service agreements related to the
Offices, as listed on SCHEDULE D annexed hereto and made a part hereof (the
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"ASSUMED CONTRACTS"), provided the same are assignable without cost to SELLER.
(h) OVERDRAFT LOANS; OVERDRAFTS. (i) All right, title and
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interest in and to all those loans which, as of the close of business on the
Closing Date, are automatically created as the result of an overdraft of a
Deposit Account (the "OVERDRAFT LOANS"); provided, however, that any such loan
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that is more than sixty (60) days past due for the payment of principal or
interest as of the Closing Date shall not be treated as an Overdraft Loan and
shall not be acquired by BUYER; and provided, further, that loans created
pursuant to overdraft protection and rewritten into a loan or other "fresh
start" program shall not be treated as Overdraft Loans and shall not be acquired
by BUYER. (ii) All right, title and interest in and to all those overdrafts
existing on the Deposit Accounts that have been outstanding for less than thirty
(30) days as of the close of business on the Closing Date (the "OVERDRAFTS").
The Overdraft Loans and the Overdrafts assigned to BUYER hereunder will be
identified as of the Closing Date and listed on SCHEDULE R attached hereto
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and incorporated herein by reference. Except as otherwise expressly provided
herein, the transfer of the Overdraft Loans and Overdrafts will be made without
recourse, without any representation, warranty or guarantee of any kind, express
or implied, and without any reserve for loan losses.
1.3 ACCEPTANCE AND ASSUMPTION. Subject to the terms and conditions
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of this Agreement, on and as of the Closing Date, BUYER shall:
(a) ASSETS. Receive and accept all of the Assets assigned,
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transferred, conveyed and delivered to BUYER by SELLER pursuant to this
Agreement, including those identified in SECTION 1.2 above.
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(b) DEPOSIT LIABILITIES. Assume and thereafter discharge, pay
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in full and perform all of SELLER's obligations and duties relating to the
"Deposit Liabilities" (as hereinafter defined). The term "DEPOSIT LIABILITIES"
is defined herein as all of SELLER's obligations, duties and liabilities of
every type and character relating to all deposit accounts (including accrued but
unpaid or uncredited interest thereon and uncollected funds related thereto)
which, as reflected on the books of SELLER as of the close of business on the
Closing Date, are attributable to the Offices. The deposit accounts referred to
in the immediately preceding sentence (the "DEPOSIT ACCOUNTS") include, without
limitation, club, statement savings, passbook savings, checking, Money Market
and NOW accounts, Individual Retirement Accounts for which SELLER has not
received, on or before the Closing Date, the written advice from the account
holder of such account holder's objection or failure to accept BUYER as
successor custodian ("IRA'S") and certificates of deposit. Deposit Accounts
shall not include (i) deposit accounts maintained by affiliates of SELLER, (ii)
deposit accounts that, by law or contract, cannot either be transferred by
SELLER or assumed by BUYER, and (iii) the deposits listed on SCHEDULE Q to this
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Agreement. The obligations, duties and liabilities to be assumed by BUYER
relating to the Deposit Accounts include, without limitation, the obligation to
pay and otherwise process all Deposit Accounts in accordance with applicable law
and their respective contractual terms and the duty to supply all applicable
reporting forms for periods following the Closing Date, including, without
limitation, IRS Forms 1098 and 1099 and other informational tax reports and
reports relating to the Deposit Accounts to be filed and provided after the
Closing Date relating to interest paid after the Closing Date. With regard to
each ▇▇▇ included within the Deposit Accounts, BUYER shall also assume the
appropriate plan pertaining thereto and the trustee or custodial arrangement in
connection therewith.
(c) LIABILITIES UNDER LEASES/SAFE DEPOSIT BUSINESS. Assume and
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thereafter fully and timely perform and discharge, in accordance with their
respective terms, all of the liabilities and obligations of SELLER arising after
the Closing Date with respect to:
(i) all leases listed on SCHEDULE E to this Agreement
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(including safe deposit leases, if any) and sold, assigned or transferred to
BUYER by SELLER pursuant to this Agreement;
(ii) the safe deposit business of the Offices, including,
but not limited to, the maintenance of all necessary facilities for the use
of safe deposit boxes by the renters thereof during the periods for which
such persons have paid rent therefor in advance to SELLER, subject to the
agreed allocation of such rents, which allocation shall be satisfied in
full by SELLER paying to BUYER, in the manner specified in SECTION 6.4
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hereof, the amount of rental payment received by SELLER for each such safe
deposit box attributable to and prorated to reflect the period from and
after the Closing Date, subject to the provisions of the applicable leases
or other agreements relating to such boxes; and
(iii) all safekeeping items and agreements listed on
SCHEDULE E to this Agreement and delivered to BUYER by SELLER pursuant to
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this Agreement, including, but not limited to, all applicable safekeeping
agreements, memoranda or receipts so delivered to BUYER by SELLER
hereunder.
(d) OTHER LIABILITIES. Fully and timely perform and discharge,
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as the same may be or become due, the Assumed Contracts, obligations pertaining
to the Overdraft Loans and all additional liabilities, obligations and deferred
expenses of SELLER as of the date of this Agreement, which are reflected on the
books of SELLER as being attributable to an Office as of the close of business
on the Closing Date but only to the extent attributable to the Assets sold,
assigned or transferred to BUYER by SELLER pursuant to this Agreement and only
to the extent arising by reason of BUYER's use or ownership of such Assets after
the close of business on the Closing Date. The liabilities, obligations and
deferred expenses referred to in the preceding sentence are listed on SCHEDULE P
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to this Agreement. No additional material liabilities and obligations of SELLER
incurred subsequent to the date of this Agreement shall be assumed by BUYER
unless the prior written consent of BUYER has been obtained prior to the
incursion of the material liability or obligation by SELLER.
(e) OTHER OBLIGATIONS. Fully and timely perform its obligations
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relative to employees of the Offices, if any, as set forth hereinafter.
1.4 PAYMENT OF FUNDS. Subject to the terms and conditions hereof, at
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the Closing:
(a) CONSIDERATION. In consideration of BUYER's assumption of
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the Deposit Liabilities and its other agreements herein, SELLER shall make
available and transfer to BUYER, in the manner specified in SECTION 6.4 hereof,
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funds equal to the aggregate balance of all Deposit Accounts (including interest
posted or accrued to such accounts as of the close of business on the day
immediately preceding the Closing Date) plus the liabilities, obligations and
deferred expenses identified in SECTION 1.3(D) hereof and listed on SCHEDULE P
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hereto prorated as of the close of business on the day preceding the Closing
Date less an amount equal to the sum of:
(i) the amount of cash on hand at the Offices transferred
to BUYER as of the close of business on the Closing Date;
(ii) $552,934 for the Offices and the Fixed Assets (less
any adjustments made pursuant to SECTION 7.4 hereof);
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(iii) Six and seventy-seven hundredths percent (6.77%) of
the aggregate "Core Deposits" (as hereinafter defined) of the Offices as of
the close of business on the Closing Date. The term "CORE DEPOSITS" shall
mean the aggregate balance of all Deposit Liabilities of the Offices (which
aggregate balance shall include interest posted to such accounts as of the
close of business on the Closing Date) but shall not include any Deposit
Liabilities consisting of public funds certificates of deposit that exceed
$2,000,000 in the aggregate (which limitation shall not apply to any other
forms of public funds Deposit Liabilities). The amount calculated as set
forth herein as of the close of business on the Closing Date is hereinafter
called the "ACQUISITION CONSIDERATION;"
(iv) the amount of prepaid expenses described in
SECTION 1.2(E) of this Agreement, prorated as of the close of business on
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the day immediately preceding the Closing Date; and
(v) the book value of the Overdraft Loans and the
Overdrafts together with accrued and unpaid interest thereon computed as of
close of business on the Closing Date.
In the event that the sum of items (i) through (v) above should be in excess of
the aggregate amount to be transferred by SELLER pursuant to the first paragraph
of this SECTION 1.4(A), the full amount of such excess shall constitute an
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amount due from BUYER to SELLER and shall be paid to SELLER at the Closing in
the manner specified in SECTION 6.4 hereof. The parties shall execute a
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Preliminary Settlement Statement at the Closing and a Final Settlement Statement
post-closing in accordance with SECTION 6.4 herein, in substantially the same
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form as set forth in SCHEDULES M AND N attached hereto and incorporated herein.
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(b) REIMBURSEMENT AND PRORATION OF CERTAIN EXPENSES. All other
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expenses (i) due and payable at times after the Closing Date for periods prior
to the close of business on the Closing Date or (ii) paid prior to the close of
business on the Closing Date for periods following the Closing Date, including
the prepaid expenses described in SECTION 1.2(E) hereof and deferred expenses
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described in SECTION 1.3(D) hereof, including, without limitation, real estate
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taxes and assessments which are a lien but not yet due and payable, utility
payments, payments due on leases assigned, payments due on assigned service and
maintenance contracts and similar expenses relating to the Offices to be
acquired by BUYER shall be prorated between SELLER and BUYER as of the close of
business on the day immediately preceding the Closing Date; provided, however,
that SELLER shall bear the cost of any real property taxes due for the calendar
year ended December 31, 2003, regardless of whether such taxes are payable
before or after the Closing Date and the real property taxes for the calendar
year ending December 31, 2004 shall be prorated between BUYER and SELLER on the
basis of the amount of such taxes actually assessed for such period, if known,
or if not known, on the basis of the amount of such taxes due for the calendar
year ended December 31, 2003 multiplied by 105%, and all utility payments and
lease payments shall be prorated on the basis of the best information available
at Closing. With respect to premiums paid to the FDIC deposit insurance for the
Deposit Liabilities, it shall be assumed that all the Deposit Liabilities are
insured under the Bank Insurance Fund. The proration of FDIC insurance premiums
will be based on the amount of the Deposit Liabilities as of the close of
business on the Closing Date and the number of days during any period for which
SELLER has prepaid premiums to the FDIC but during which BUYER has held or will
hold the Deposit Liabilities. For prorations, if any, which cannot be
reasonably calculated as of the Closing, a post-closing adjustment shall be made
in the manner specified in SECTION 6.4 hereof.
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(c) EXPENSES RELATING TO OWNED REAL ESTATE AND OTHER ASSETS.
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SELLER shall pay the cost of all transfer and conveyance taxes imposed by any
governmental authority upon the transfer to BUYER of the Owned Real Estate and
the costs, fees and expenses with respect to the issuance of the basic title
commitments and basic premiums for title policies relating to the Owned Real
Estate and the cost of any endorsements for title insurance policies on the
Owned Real Estate which are needed to confirm fee title to the Owned Real Estate
in the name of the BUYER free of any lien or encumbrance. All recording fees
incurred in connection with the transfer of the Owned Real Estate to BUYER, and
all sales and transfer taxes, if any, arising from the transfer to BUYER of the
Purchased Assets other than the Owned Real Estate shall be paid by BUYER, and
all other endorsement costs and any extended or special coverages with respect
to the title commitments shall be paid by BUYER.
ARTICLE II
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CONDUCT OF THE PARTIES PRIOR TO CLOSING
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2.1 COVENANTS OF SELLER. SELLER hereby covenants to BUYER that, from
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the date hereof until the Closing, it will do or cause the following to occur:
(a) OPERATION OF THE OFFICES. SELLER shall continue to operate
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the Offices in a manner substantially equivalent to that manner and system of
operation employed immediately prior to the date of this Agreement, use all
reasonable efforts to preserve intact the current business organization of the
Offices and use all reasonable efforts to preserve its business relationships
with depositors, customers and others having business relationships with it and
whose Deposit Accounts will be retained at the Offices; provided, however, that
it is contemplated by the parties that, prior to the Closing, SELLER will be
terminating certain programs which are currently in effect which allow
depositors to access Deposit Accounts through electronic means. SELLER will
also cooperate with and assist BUYER in assuring the orderly transition of the
business of the Offices to BUYER from SELLER and SELLER will maintain the
Assets, as applicable, in their current condition, ordinary wear and tear
excepted.
Notwithstanding the foregoing and except as may be required to obtain
the required authorizations referred to in SECTION 2.3 of this Agreement,
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between the date of this Agreement and the Closing Date, and except as may be
otherwise required by a regulatory authority, SELLER shall not, without the
prior consent of BUYER, which consent shall not be unreasonably withheld:
(i) cause any Office to engage or participate in any
material transaction or incur or sustain any obligation which, in the
aggregate, is material to its business, condition or operations except in
the ordinary course of business;
(ii) cause any Office to transfer to SELLER's other
operations any material amount of Assets, except for (a) supplies, if any,
which have unique function in the business of SELLER and its affiliates and
ordinarily would not be useful to BUYER, (b) cash and other normal
intrabank transfers which may be transferred in the ordinary course of
business in accordance with normal banking practices and (c) signs, or
those parts thereof, bearing the SELLER or affiliate name and/or logo or
that of a SELLER contractor;
(iii) cause the Offices to transfer to SELLER's other
operations any Deposit Accounts other than those securing loans made by
SELLER and Deposit Accounts owned in whole or in part by employees of
SELLER or its affiliates who are not Transferred Employees as defined in
SECTION 4.1 of this Agreement, except in the ordinary course of business at
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the unsolicited request of depositors, or cause any of SELLER's other
operations to transfer to the Offices any deposits, except in the ordinary
course of business at the unsolicited request of depositors; provided,
however, that SELLER shall be permitted to make such transfers of any
deposits to or from the Offices as are in the normal course of business and
do not violate the foregoing restrictions;
(iv) invest in excess of $25,000 in the aggregate for each
Office in any Fixed Assets, except for commitments made on or before the
date of this Agreement which are disclosed to BUYER on SCHEDULE B of this
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Agreement and for replacements of furniture, furnishings and equipment and
normal maintenance and refurbishing purchased or made in the ordinary
course of Office business;
(v) enter into or amend any continuing contract (other
than Deposit Liabilities, Overdraft Loans or safe deposit agreements
relating to the Offices) which cannot be terminated without cause and
without payment of any amounts as a penalty, bonus, premium or other
compensation for termination, or which is not made in the ordinary course
of Office business;
(vi) (x) increase the aggregate full-time equivalent size
of the work force at the Offices (other than to replace a departing
employee and/or to bring the number of employees at the Offices to normal
staffing levels); (y) transfer, reassign or terminate any Transferred
Employee of the Offices, unless such termination is for cause as determined
in the sole discretion of SELLER or otherwise pursuant to existing SELLER
policies or procedures; and (z) increase the compensation or benefits of
any Transferred Employee other than regularly scheduled increases, promote
any of the Transferred Employees or pay any bonus to any Transferred
Employee, other than pursuant to, and consistent with, customary SELLER
procedures and policies; or
(vii) change its deposit rates for customers of the Offices
or terms of loan underwriting for check overdraft protection other than
routine changes consistently followed by it at its main banking office.
SELLER agrees to notify BUYER of any increases in its deposit rates
affecting the Offices implemented during the time period starting with the
date of this Agreement and ending on the Closing Date.
(b) TITLE COMMITMENTS FOR OWNED REAL ESTATE. SELLER shall
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deliver to BUYER, at SELLER's expense, with respect to the Owned Real Estate, no
later than thirty (30) days after the date of this Agreement, a commitment or
commitments (the "TITLE COMMITMENTS") having an effective date as near as
feasible to the date of delivery of such Title Commitments, from a title
insurance company designated by SELLER and reasonably satisfactory to BUYER, to
issue to BUYER as soon as practicable after the Closing Date an American Land
Title Association (ALTA) owners (on the most recent form) policy having an
effective date as of the Closing Date, covering the Owned Real Estate, in an
amount equal to the most recently available certified tax assessed value for the
Owned Real Estate, subject to the Permitted Exceptions. If title to all or part
of the Owned Real Estate is subject to any defect, lien, encumbrance, easement,
condition, restriction or encroachment other than the Permitted Exceptions as
defined in SECTION 10.7(D) herein, then BUYER shall provide written notice
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thereof to SELLER within ten (10) days after receipt of such Title Commitments.
SELLER shall have thirty (30) days after written notice thereof from BUYER, to
elect to remedy or remove any such defect, lien, encumbrance, easement,
condition, restriction or encroachment, but, if SELLER elects not to cure the
same and if such defect or encumbrance or other matter is not cured, then, BUYER
shall have the right, as its sole remedy, within ten (10) days of receipt of
notice of SELLER's election, with respect to the relevant Office (i) to declare
this Agreement terminated by written notice to SELLER, (ii) to negotiate, at
SELLER's cost, with the title company for certain endorsements to the standard
insurance coverage to address any such defects or encumbrances which
endorsements are needed to confirm fee title in the name of BUYER free of any
lien or encumbrance, or (iii) to waive any objection to such defect or
encumbrance or other matter in which event such defect, encumbrance or other
matter shall be deemed to be a Permitted Exception. Unless BUYER elects to
terminate this Agreement, it is understood that any matters not cleared from the
Title Commitments in accordance with the foregoing shall be Permitted
Exceptions. The Owned Real Estate is being sold by SELLER to BUYER hereunder
free and clear of all liens, claims, encumbrances and rights of tenants in
possession except for the Permitted Exceptions, and the conveyance by special
warranty deed to be delivered by SELLER pursuant hereto shall be subject only to
the Permitted Exceptions. SELLER also shall execute and deliver to BUYER at the
time of Closing such affidavits and other instruments, if any, as the title
insurance company issuing the Title Commitments may reasonably require to delete
the standard exceptions appearing as "Schedule B" items in a standard ALTA
owners title insurance policy, other than those which may only be deleted by a
survey. SELLER also shall execute and deliver a so-called FIRPTA affidavit at
Closing.
(c) SURVEYS. Within thirty (30) days after the date of this
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Agreement, SELLER shall provide BUYER surveys of the Owned Real Estate certified
by a registered land surveyor as of a date subsequent to the date hereof, as
having been made in compliance with ALTA minimum detail requirements showing
with respect to the Owned Real Estate (i) the legal description thereof; and
(ii) all buildings, structures and improvements, and all set back lines,
restrictions of record and other restrictions which may have been established by
any applicable zoning or building code or ordinances, and all easements and
rights of way. If the surveys show any (x) encroachments upon such property or
adjoining property by buildings, structures, improvements or easements which
materially or adversely affect the use of the Owned Real Estate or improvements
thereon; (xi) access to such property from a public street; or (xii) easements
which materially or adversely affect the use of the Owned Real Estate or
improvements thereon, other than Permitted Exceptions, BUYER shall provide
written notice thereof to SELLER within ten (10) days of the receipt of each
survey. SELLER shall have thirty (30) days to elect to remedy or remove such
encroachment or easement or to secure such access, but if SELLER elects not to
cure the same, the BUYER shall have the right, as its sole remedy, within ten
(10) days of receipt of notice of SELLER's election, with respect to the
relevant Office, (xx) to declare this Agreement terminated by written notice to
SELLER, (xxi) to negotiate at BUYER's cost with the title company appropriate
endorsements over such encroachment or easement, or (xxiii) to waive any
objection to such encroachment or easement in which event such encroachment or
easement shall become a Permitted Exception. BUYER and SELLER shall each pay
one-half of the costs of the surveys.
(d) CREATION OF LIENS AND ENCUMBRANCES. With respect to the
-----------------------------------
Owned Real Estate, SELLER shall not create or allow any liens, imperfections in
title, charges, easements, restrictions or encumbrances other than the Permitted
Exceptions.
(e) CONDEMNATION. If prior to the Closing all or any portion of
-------------
the Owned Real Estate is taken or is made subject to eminent domain or other
governmental acquisition proceedings, then SELLER shall promptly notify BUYER
thereof, and BUYER may, within ten (10) days of receipt of notice thereof,
either complete the Closing and receive the proceeds paid or payable on account
of such acquisition proceedings, or, if such taking involves a material portion
of such Owned Real Estate, terminate this Agreement as to such Office and
related assets and liabilities. If BUYER terminates this Agreement, both
parties shall thereupon be relieved from all further obligations hereunder as to
such Office and related assets and liabilities.
(f) INSURANCE PROCEEDS, CASUALTY AND CONDEMNATION PAYMENTS.
-------------------------------------------------------
SELLER shall maintain existing insurance on all the Assets consisting of Owned
Real Estate and Fixed Assets. In the event of any damage, destruction or
condemnation affecting such Assets between the date hereof and the time of the
Closing, SELLER shall deliver to BUYER any net insurance proceeds, to the extent
of the applicable amount set forth in SECTION 1.4(A)(II) hereof with respect
------------------
to Owned Real Estate and the Fixed Assets, as the case may be, received (or
with respect to insurance proceeds, which would be received assuming SELLER's
insurance policy had no deductible) by SELLER as a result thereof unless, in the
case of damage or destruction, SELLER has repaired or replaced the damaged or
destroyed property. Notwithstanding the foregoing, in the event of any such
damage, destruction or condemnation, BUYER shall be obligated to consummate the
Acquisition unless such damage, destruction or condemnation involves a material
portion of such Assets, in which case, BUYER may terminate this Agreement as to
the affected Office and related assets and liabilities. If BUYER terminates
this Agreement, both parties shall thereupon be relieved from all further
obligations hereunder as to such Office and related assets and liabilities.
(g) ▇▇▇ ACCOUNTS. Not later than thirty (30) days prior to the
-------------
expected Closing Date, SELLER shall, at SELLER's expense and by letter
reasonably acceptable to BUYER, mail notice of SELLER's resignation as custodian
and the appointment of BUYER as the successor custodian, effective upon Closing,
of each Individual Retirement Account maintained at the Offices. The notice
shall include such other information that is mutually agreed upon by SELLER and
BUYER.
(h) INFORMATION AND ACCESS. Between the date hereof and the
-----------------------
Closing, SELLER shall afford BUYER and its representatives (including
accountants and legal counsel) reasonable access to the Offices, properties,
equipment, records, files, contracts, agreements, books of account and other
documents which pertain to the Offices, or the transactions contemplated herein,
during the normal business hours of the Offices, provided BUYER notifies SELLER
at least twenty-four (24) hours prior to the time access is requested by BUYER.
SELLER shall make and furnish to BUYER copies of such items as requested by
BUYER, and SELLER shall cause its personnel to provide reasonable assistance in
BUYER's investigation of matters relating to the Offices and furnish BUYER with
all information with respect to financial and operating data and all other
information concerning the business, operations and properties of the Offices or
the transactions contemplated herein as BUYER may reasonably request.
(i) CONSENTS. SELLER shall use its commercially reasonable
---------
efforts to obtain on or before the Closing Date any required material consents
to assign the Assumed Contracts to BUYER at the same terms, including charges or
fees, as are currently stated in or associated with the Assumed Contracts.
(j) SATISFACTION OF CONDITIONS. SELLER shall not voluntarily
---------------------------
undertake any course of action inconsistent with the satisfaction of the
requirements or the conditions applicable to it, or its agreements,
undertakings, obligations or covenants set forth in this Agreement, and it shall
promptly do all such reasonable acts and take all such reasonable measures as
may be appropriate to enable it to perform as early as possible the agreements,
undertakings, obligations and covenants herein provided to be performed by it,
and to enable the conditions precedent to BUYER's obligations to consummate the
Closing of the Acquisition to be fully satisfied. Additionally, SELLER shall
not knowingly, directly or through any existing or future subsidiary or
affiliate, take any action that would be in conflict with, or result in the
denial, delay, termination or withdrawal of, any of the regulatory approvals
referred to in this Agreement.
2.2 COVENANTS OF BUYER. BUYER hereby covenants to SELLER that, from
------------------
the date hereof until the Closing, it will do or cause the following to occur:
(a) REGULATORY APPLICATIONS. BUYER shall prepare and submit for
------------------------
filing, at no expense to SELLER, any and all applications, filings and
registrations with, and notifications to, all federal and state authorities
required on the part of BUYER or any shareholder or affiliate of BUYER for the
Acquisition to be consummated at the Closing as contemplated in SECTION 6.1
-----------
herein and for BUYER to operate the Offices following the Closing; provided,
however, that BUYER, in its sole discretion, shall be permitted to file
applications to close and/or relocate either Office and SELLER shall cooperate
with BUYER if BUYER elects to close or relocate either Office. BUYER shall
provide SELLER with a draft copy of each application (excluding confidential
information), filing, registration and notification for SELLER's approval prior
to filing, which approval by SELLER will not be unreasonably withheld or
delayed. Such applications will be submitted to SELLER in draft form within
fifteen (15) days from the date of this Agreement and filed by BUYER without
delay following SELLER's approval of such applications; provided, however, that
in no event will such applications be filed later than thirty (30) days from the
date of this Agreement; provided further, that BUYER shall be permitted to file
any closing and/or relocation applications when it deems necessary but the
Closing shall not be unreasonably delayed if BUYER has not received the approval
of such applications. Thereafter, BUYER shall pursue all such applications,
filings, registrations and notifications diligently and in good faith and shall
file such supplements, amendments and additional information in connection
therewith as may be reasonably necessary for the Acquisition to be consummated
at the Closing and for BUYER to operate the Offices following the Closing.
BUYER shall deliver to SELLER evidence of the filing of each and all of such
applications, filings, registrations and notifications (except for any
confidential portions thereof), and any supplement, amendment or item of
additional information in connection therewith (except for any confidential
portions thereof). BUYER shall also deliver to SELLER a copy of each material
notice, order, opinion and other item of correspondence received by BUYER from
such federal and state authorities (except for any confidential portions
thereof) and shall advise SELLER, at SELLER's request, of developments and
progress with respect to such matters.
(b) REQUIRED AUTHORIZATIONS. BUYER shall obtain and procure all
------------------------
necessary internal corporate and other approvals and authorizations, if any,
required by BUYER to enable it to fully perform all obligations imposed on it
hereunder which must be performed by it at or prior to the Closing.
(c) SATISFACTION OF CONDITIONS. BUYER shall not voluntarily
---------------------------
undertake any course of action inconsistent with the satisfaction of the
requirements or the conditions applicable to it, or its agreements,
undertakings, obligations or covenants set forth in this Agreement, and it shall
promptly do all such reasonable acts and take all such reasonable measures as
may be appropriate to enable it to perform as early as possible the agreements,
undertakings, obligations and covenants herein provided to be performed by it,
and to enable the conditions precedent to SELLER's obligations to consummate the
Closing of the Acquisition to be fully satisfied. Additionally, BUYER shall not
knowingly, directly or through any existing or future subsidiary or affiliate,
take any action that would be in conflict with, or result in the denial, delay,
termination or withdrawal of, any of the regulatory approvals referred to in
this Agreement.
2.3 COVENANTS OF ALL PARTIES. SELLER hereby covenants to BUYER, and
-------------------------
BUYER hereby covenants to SELLER, that from the date hereof until the Closing,
such party shall cooperate fully with the other party in attempting to obtain
all consents, approvals, permits or authorizations which are required to be
obtained pursuant to any federal or state law, or any federal or state
regulation thereunder, for or in connection with the Acquisition.
ARTICLE III
-----------
REPRESENTATIONS AND WARRANTIES
------------------------------
3.1 REPRESENTATIONS AND WARRANTIES OF SELLER. SELLER represents and
-----------------------------------------
warrants to BUYER as follows:
(a) GOOD STANDING AND POWER OF SELLER. SELLER is a Wisconsin
----------------------------------
banking corporation duly incorporated, validly existing and in good standing
under the laws of the State of Wisconsin with corporate power to own its
properties and to carry on its business as presently conducted. SELLER is an
insured bank as defined in the Federal Deposit Insurance Act and applicable
regulations thereunder.
(b) AUTHORIZATION OF AGREEMENT. The execution and delivery of
---------------------------
this Agreement and the transactions contemplated hereby have been duly
authorized by all necessary corporate action on the part of SELLER, and this
Agreement is a valid and binding obligation of SELLER enforceable against SELLER
in accordance with its terms, except to the extent enforcement may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting creditors' rights generally and by general principles of equity
(regardless of whether enforcement is sought in equity or at law).
(c) EFFECTIVE AGREEMENT. Subject to the receipt of any and all
--------------------
necessary regulatory approvals and required consents, the execution, delivery
and performance of this Agreement by SELLER and the consummation of the
transactions contemplated hereby, will not conflict with, result in the breach
of, constitute a violation or default or result in the acceleration of payment
or other obligations, or create a lien, charge or encumbrance under, any of the
provisions of the Articles of Incorporation or By-Laws of SELLER, under any
judgment, decree or order, under any law, rule or regulation of any government
or agency thereof, or under any material contract, material agreement or
material instrument to which SELLER is subject, where such conflict, breach,
violation, default, acceleration or lien would have a material adverse effect on
the Assets or SELLER's ability to perform its obligations hereunder.
(d) TITLE TO REAL ESTATE AND OTHER ASSETS. SELLER is the sole
--------------------------------------
owner of each of the Assets (other than the Owned Real Estate) free and clear of
any mortgage, lien, encumbrance or restrictions of any kind or nature.
Notwithstanding the prior sentence, with respect to the Owned Real Estate,
SELLER or an affiliate is the sole owner of a fee simple interest in, and has
good and marketable title to, such Owned Real Estate, free and clear of all
liens, claims, encumbrances and rights of tenants in possession except for the
Permitted Exceptions and shall convey, or cause to be conveyed, such real estate
to BUYER by delivery at the Closing of a special warranty deed conveying such
title subject only to the Permitted Exceptions.
(e) ZONING VIOLATIONS. SELLER has not received written notice
------------------
from any applicable governmental authority that any of the buildings, structures
or improvements that comprise the Owned Real Estate are the subject of a formal
written complaint or notice of violation of applicable zoning, building, health
or safety codes, and to SELLER's knowledge, there are no zoning ordinances,
material building code, use or occupancy restrictions or condemnation actions or
proceedings pending or threatened with respect to such buildings, structures or
improvements.
(f) CONDEMNATION PROCEEDINGS. SELLER has not received any
-------------------------
written notice from any applicable condemning authority of any pending or
threatened, nor is it aware of any contemplated, condemnation proceeding
affecting or relating to the Offices.
(g) TAXES. All federal, state and local payroll, withholding,
------
property, sales, use and transfer taxes, if any, which are due and payable by
SELLER relating to the Offices and the employees assigned thereto prior to the
date of Closing shall be paid in full as of the Closing Date or SELLER shall
have made appropriate provision for such payment in accordance with ordinary
business practices. Any claims for refunds of taxes which have been paid by
SELLER shall remain the property of SELLER.
(h) OPERATIONS LAWFUL. The conduct of banking business at the
------------------
Offices is in compliance in all material respects with all federal, state,
county and municipal laws, ordinances and regulations applicable to the conduct
of such business.
(i) THIRD-PARTY CLAIMS. There is no action, suit or proceeding,
-------------------
pending or, to SELLER's knowledge, threatened against or affecting the banking
business of the Offices, the Deposit Liabilities or the Assets. There is no
action, suit or proceeding, pending or, to SELLER's knowledge, threatened
against or affecting SELLER which, if determined adversely to SELLER, could (i)
reasonably be expected to have material adverse effect on the aggregate value of
the banking business and Assets of the Offices or (ii) prevent or materially
delay SELLER from performing its obligations under this Agreement in all
material respects.
(j) INSURANCE. SELLER maintains such insurance on the Offices
----------
and the Fixed Assets as may be required or as is customary in the business of
banking.
(k) GOVERNMENTAL NOTICES. SELLER has not received notice from
---------------------
any federal or state governmental agency indicating that it would oppose or not
grant or issue its consent or approval, if required, with respect to the
transactions contemplated by this Agreement.
(l) ENVIRONMENTAL. There are no actions, proceedings or
--------------
investigations pending before any environmental regulatory body, federal or
state court with respect to or affecting SELLER in respect to either Office
under the Comprehensive Environmental Response, Compensation and Liability Act
of 1980, as amended ("CERCLA"), or under any federal, state, local or municipal
environmental statute, ordinance or regulation in respect thereof and in
connection with any release of any toxic or "hazardous substance," "pollutant"
or "contaminant" into the "environment," nor, to the best knowledge of SELLER,
is there any reasonable basis for the institution of any such actions or
proceedings or investigations which is probable of assertion, nor are there any
such actions or proceedings or investigations in which SELLER is a plaintiff or
complainant. To the best knowledge of SELLER, SELLER is not responsible in any
material respect under any applicable environmental law for any release at or in
the vicinity of either Office of a hazardous or toxic substance, contaminant or
pollutant caused by the spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping or disposing of hazardous
wastes or other chemical substances, pollutants or contaminants into the
environment, nor is SELLER responsible for any material costs of any remedial
action, including, without limitation, costs arising out of security fencing,
alternative water supplies, temporary evacuation and housing and other emergency
assistance undertaken by any environmental regulatory body having jurisdiction
over SELLER to prevent or minimize any actual or threatened release of any
hazardous wastes or other chemical substances, pollutants and contaminants into
the environment which would endanger the public health or the environment. All
terms contained in quotation marks in this paragraph shall have the meaning
ascribed to such terms as defined in all federal, state and local statutes,
regulations or ordinances.
(m) ACCESS TO REAL ESTATE. SELLER has no actual knowledge of
----------------------
any fact or condition which would result in the termination or impairment of
access to the Owned Real Estate from adjoining public or private streets or ways
or which would result in discontinuation of existing sewer, water, electric,
gas, telephone or other utilities or services, and, to the actual knowledge of
SELLER, sewage, sanitation, plumbing, refuse disposal and similar facilities
servicing the Owned Real Estate are in material compliance with applicable
governmental regulations.
(n) MECHANIC'S LIENS. SELLER has paid or will pay in full all
-----------------
bills and invoices for labor and material of any kind arising from the
ownership, operation, management, repair or maintenance of the Owned Real Estate
prior to Closing.
(o) DEPOSIT ACCOUNTS. Attached as SCHEDULE F hereto is a true
----------------- ----------
and accurate schedule of all Deposit Accounts (including individual retirement
accounts) domiciled at the Offices, prepared as of a date within thirty (30)
days prior to the date of this Agreement, listing by Office and by category the
amount of all deposits and the interest rates and maturity dates associated with
such deposits and indicating the deposits that constitute Core Deposits. All of
the Deposit Accounts were originated and administered and are in material
compliance with the documents under which they were established and all
applicable state and federal laws and regulations. Seller has properly accrued
interest on the Deposit Accounts, and the records respecting the Deposit
Accounts accurately reflect, in all material respects, such accruals of
interest.
(p) FIXED ASSETS. SCHEDULE B is a preliminary listing of Fixed
------------- ----------
Assets owned by SELLER and located at the Offices, which is subject to non-
material change prior to the Closing Date. A final listing of Fixed Assets will
be provided to BUYER by SELLER prior to the Closing Date. All of the Fixed
Assets and the Offices (excluding Owned Real Estate) are in good operating
condition and have been adequately maintained, reasonable wear and tear
excepted, except to the extent that the failure to maintain such Fixed Assets or
Offices (excluding Owned Real Estate) would not materially detract from the
ability of BUYER to conduct a banking business at the Offices following Closing
in the same manner as SELLER conducted such banking business prior to Closing.
(q) ASSUMED CONTRACTS. SCHEDULE D is a true and accurate
------------------ ----------
schedule of all Assumed Contracts related to the Offices. The Assumed Contracts
constitute the legal, valid and binding obligations of SELLER enforceable in
accordance with their terms and, to SELLER's knowledge, the other parties
thereto, enforceable in accordance with their terms (except as enforceability
may be limited by bankruptcy laws and other laws of a similar nature relating to
creditors rights). SELLER is not in default under any of the Assumed Contracts,
and, to the best of the SELLER's knowledge, no other party to any of the Assumed
Contracts is in default thereunder, except where a default would not have a
material adverse effect upon the aggregate value of the banking business and
Assets of the Offices.
(r) FIRPTA. SELLER is not a "foreign person" within the meaning
-------
of the Internal Revenue Code Section 1445.
(s) NO BROKER. Other than Prairie Capital Services (whose
----------
fees and expenses will be paid solely by SELLER), no broker, finder or any other
party or agent performing similar functions has been retained by SELLER or its
affiliates or is entitled to be paid based on any arrangements, agreements or
understandings made by SELLER or its affiliates in connection with the
transactions contemplated hereby, and no brokerage fee or other commission has
been agreed to be paid by SELLER or its affiliates on account of such
transactions.
(t) EMPLOYEE MATTERS. There is no pending, nor have the
-----------------
Offices experienced since January 1, 2001 any, material labor dispute, strike or
organized work stoppage and, to the knowledge of SELLER, there is no threatened
material labor dispute, strike or organized work stoppage against the Offices.
To the knowledge of SELLER, no union organizing activities are in process or
have been proposed or threatened involving any Transferred Employees not
presently organized, and no petitions have been filed or, to the knowledge of
SELLER, have been threatened or proposed to be filed, for union organization or
representation of Transferred Employees not presently organized. To the
knowledge of SELLER, none of the Transferred Employees is represented under any
collective bargaining agreement relating to such employee's employment with
SELLER. There are no pending disputes involving the SELLER and any current or
former employee of the Offices nor, to SELLER's knowledge, are any such disputes
threatened in writing. To the extent required by law, as of the Closing Date,
SELLER shall have provided all required notifications under the Consolidated
Omnibus Budget Reconciliation Act of 1985 ("COBRA") to all employees of SELLER
at the Offices who are covered under SELLER's group health plans and to all
other persons who became "qualified beneficiaries" under COBRA with respect to
any group health plans maintained by SELLER for its employees, and SELLER shall
have provided any required COBRA coverage to all such former employees and other
qualified beneficiaries of SELLER who elect COBRA coverage within the time
period specified by COBRA and the regulations promulgated thereunder. The
information regarding employee compensation and benefits made available by
SELLER to BUYER is correct in all material respects as of the date so provided
and, upon appropriate updating and revision, will be true and correct as of the
Closing Date.
(u) IRS REPORTING. SELLER has complied in all material
--------------
respects with the requirements of the Internal Revenue Service regarding
taxpayer identification number certification, interest information reporting and
backup withholding of interest payable in connection with the Deposit Accounts
and with all IRA's.
(v) FINANCIAL INFORMATION. The financial information
----------------------
supplied by SELLER to BUYER reflects in all material respects the true and
accurate book value of the Fixed Assets in accordance with generally accepted
accounting principles consistently applied.
(w) OVERDRAFT LOANS; OVERDRAFTS. Attached hereto as
----------------------------
SCHEDULE S is a true and accurate schedule of all Overdraft Loans and
----------
Overdrafts, including accrued and unpaid interest thereon, computed as of a date
within thirty (30) days prior to the date of this Agreement, excluding, however,
such Overdraft Loans which are more than sixty (60) days past due for payment of
principal or interest and Overdrafts that have been outstanding for more than
thirty (30) days.
(x) APPROVAL DELAYS. To the knowledge of Seller, there is
----------------
no reason why the granting of any of the regulatory approvals referred to in
SECTION 2.2(A) would be denied or unduly delayed.
---------------
3.2 REPRESENTATIONS AND WARRANTIES OF BUYER. BUYER represents and
---------------------------------------
warrants to SELLER as follows:
(a) GOOD STANDING AND POWER OF BUYER. BUYER is a national
---------------------------------
banking association duly organized, validly existing and in good standing under
the laws of the United States with corporate power to own its properties and to
carry on its business as presently conducted. BUYER is an insured bank as
defined in the Federal Deposit Insurance Act and applicable regulations
thereunder.
(b) AUTHORIZATION OF AGREEMENT. The execution and delivery of
---------------------------
this Agreement and the transactions contemplated hereby have been duly
authorized by all necessary corporate action on the part of BUYER, and this
Agreement is a valid and binding obligation of BUYER enforceable against BUYER
in accordance with its terms, except to the extent enforcement may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting creditors' rights generally and by general principles of equity
(regardless of whether enforcement is sought in equity or at law).
(c) EFFECTIVE AGREEMENT. Subject to the receipt of any and all
--------------------
necessary regulatory approvals, the execution, delivery and performance of this
Agreement by BUYER and the consummation of the transactions contemplated hereby,
will not conflict with, result in the breach of, constitute a violation or
default or result in the acceleration of payment or other obligations under, or
create a lien, charge or encumbrance under, any of the provisions of the
Articles of Association or By-Laws of BUYER, under any judgment, decree or
order, under any law, rule or regulation of any government or agency thereof, or
under any material agreement, material contract or material instrument to which
BUYER is subject, where such conflict, breach, violation, default, acceleration
or lien would have a material adverse effect on BUYER's ability to perform its
obligations hereunder.
(d) THIRD-PARTY CLAIMS. There are no claims, actions,
-------------------
complaints, suits or proceedings of any kind, pending or, to BUYER's knowledge,
threatened against or affecting BUYER which, if determined adversely to BUYER,
could (i) reasonably be expected to have a material adverse effect on BUYER or
(ii) prevent or materially delay BUYER from performing its obligations under
this Agreement in all material respects. No governmental authority has notified
BUYER that it would oppose or not approve or consent to the transactions
contemplated hereby, and BUYER has no knowledge of any reason for any such
opposition, disapproval or non-consent.
(e) WARN ACT. BUYER is not planning or contemplating, and has
---------
not made or taken, any decisions or actions concerning the Transferred Employees
after the Closing that would require the service of notice under the WARN Act or
any similar state laws.
(f) CAPITAL AVAILABLE. BUYER has, or will have on the Closing
------------------
Date, sufficient capital to support the acquisition of the Offices and to
perform BUYER's other obligations hereunder and under any of the other documents
executed in connection herewith, and BUYER's ability to purchase the Assets and
to assume such liabilities as provided herein, including, but not limited to,
the Deposit Liabilities and the Overdraft Loans, and to perform BUYER's other
obligations hereunder is not contingent on raising any equity capital, obtaining
specific financing thereof or obtaining the consent of any lender.
(g) NO BROKER. No broker, finder or any other party or agent
----------
performing similar functions has been retained by BUYER or its affiliates or is
entitled to be paid based on any arrangements, agreements or understandings made
by BUYER or its affiliates in connection with the transactions contemplated
hereby, and no brokerage fee or other commission has been agreed to be paid by
BUYER or its affiliates on account of such transactions.
(h) CONSENTS AND APPROVALS. Except for the regulatory
-----------------------
approvals, to the knowledge of BUYER, no consents, approvals, filings or
registrations with any third party or any public body, agency or authority are
required in connection with BUYER's consummation of the transactions
contemplated hereby.
ARTICLE IV
-----------
ACTIONS RESPECTING EMPLOYEES
AND PENSIONS AND EMPLOYEE BENEFIT PLANS
---------------------------------------
4.1 EMPLOYMENT OF EMPLOYEES.
------------------------
(a) BUYER shall extend offers of employment, as of the Closing
Date, to all employees (other than Leave Employees as defined in SECTION 4.2(D)
--------------
of the Offices as may be employed by SELLER at the Offices as of the Closing
Date and will offer employment to Leave Employees at such time as the leave
terminates with SELLER. The employees of the Offices as of the date of this
Agreement are listed on SCHEDULE O hereto, which schedule will be updated as
----------
of the Closing Date as necessary to show the employees of the Offices as of the
Closing Date. BUYER and SELLER shall cooperate to allow BUYER to meet with and
interview all such employees after the date hereof to determine the most
mutually beneficial position for such employees with BUYER. Employees accepting
employment with BUYER are referred to herein as the "TRANSFERRED EMPLOYEES." A
---------------------
Transferred Employee shall not have his or her base salary reduced by BUYER for
a period of twelve (12) months after the Closing Date. In the event that BUYER
shall terminate the employment of a Transferred Employee or a Transferred
Employee shall terminate his or her employment (the "TERMINATED EMPLOYEE")
-------------------
between the Closing Date and the date which is one (1) year from the Closing
Date, other than for cause (as determined in accordance with SELLER's severance
plan), BUYER shall pay to the Terminated Employee a sum equal to the greater of
that which the Terminated Employee would have received on the date of such
transfer, termination or reduction in salary under the severance plan of SELLER
applicable to the Terminated Employee as of the date hereof and set forth in
SCHEDULE O or the severance plan of BUYER otherwise applicable to the Terminated
----------
Employee as of the Closing Date. Such payment shall be due and owing the
Terminated Employee on the date of such transfer, termination or reduction in
salary. Nothing contained in this Agreement shall restrict or prohibit BUYER
and any Transferred Employee from entering into an agreement satisfactory to
both BUYER and the Transferred Employee providing for resolution of matters set
forth in this Section. Nothing contained in this Agreement shall be construed
as creating an employment agreement between BUYER and an employee of the
Offices.
(b) SELLER will cooperate with BUYER, to the extent reasonably
requested and legally permissible, to provide BUYER with information about the
employees of the Offices, including, without limitation, providing BUYER with
the personnel files of those employees of the Offices who provide SELLER with
their written consent thereto and a means to meet with the subject employees.
BUYER hereby agrees to indemnify and to hold SELLER and its affiliates and its
and their officer, directors, agents and employees harmless from and against any
and all liability, loss, cost and expense, however arising, as a result of
release of information and/or files concerning the subject employees.
4.2 TERMS AND CONDITIONS OF EMPLOYMENT. Except as otherwise provided
-----------------------------------
explicitly in this Agreement, the terms of employment for each Transferred
Employee shall be determined solely by BUYER's policies, procedures and
programs; provided, however, that each Transferred Employee shall be provided
employment subject to the following terms and conditions:
(a) Base salary shall be at least equivalent to the rate of base
salary paid by SELLER to such Transferred Employee as of the close of business
on the day prior to the Closing Date, subject to the one (1) year limit of
SECTION 4.1(A).
--------------
(b) Except as otherwise specifically provided herein,
Transferred Employees shall be provided employee benefits that are no less
favorable in the aggregate than those provided to similarly situated employees
of BUYER. In determining the years of service of any Transferred Employee for
vesting or participation purposes under BUYER's employee benefits plans, each
such Transferred Employee shall receive credit for years of service earned with
SELLER. For purposes of vacation pay, if a Transferred Employee elects to
transfer his or her vacation accrual with SELLER to BUYER and relinquishes and
waives all right to payment of vacation pay from SELLER, then BUYER will accept
such transfer and credit the Transferred Employee with the number of vacation
days so transferred for purposes of BUYER's vacation policies.
(c) To the extend permitted by the plans, each Transferred
Employee shall be eligible to participate in the medical, dental or other
welfare plans of BUYER, as such plans may exist, on and after the Closing Date,
and any pre-existing conditions provisions of such plans shall be waived with
respect to any such Transferred Employees.
(d) Except as provided herein, SELLER shall pay, discharge and
be responsible for (i) all salary and wages arising out of employment of the
Transferred Employees through the Closing Date and (ii) any employee benefits
(except vacation, sick and personal days accrued but unused by the Transferred
Employee through the Closing Date which BUYER hereby agrees to grant to such
Transferred Employees following the Closing Date; provided, that SELLER shall
reimburse BUYER for such accrued vacation, sick and personal days) arising under
SELLER's employee benefit plans and employee programs prior to the Closing Date
(but not including medical benefits, if any, to Transferred Employees who retire
after the Closing Date), including benefits with respect to claims incurred
prior to the Closing Date but reported after the Closing Date and benefits
inuring to employees who are on family and medical leave, military or personal
maternity leave ("LEAVE EMPLOYEES") prior to any election by such Leave
---------------
Employees to return to work with BUYER. SELLER hereby represents and warrants
that there are no Leave Employees. From and after the Closing Date, BUYER shall
pay, discharge and be responsible for all salary, wages and benefits arising out
of or relating to the employment of the Transferred Employees by BUYER from and
after the Closing Date, including, without limitation, all claims for welfare
benefits plans incurred on or after the Closing Date. Claims are incurred as of
the date services are provided notwithstanding when the injury or illness may
have occurred.
(e) Following the Closing Date, SELLER will allow each
Transferred Employee who is a participant in its 401(k) plan to elect to receive
a distribution of benefits from his or her account. To the extent permitted
under BUYER's applicable 401(k) plan, BUYER shall permit the Transferred
Employees who so request to transfer their accounts to BUYER's 401(k) plan.
(f) SELLER hereby covenants to BUYER, and BUYER hereby covenants
to SELLER, that from the date hereof until the Closing, such party shall
cooperate fully with the other party to resolve, to each party's reasonable
satisfaction and in accordance with applicable law, any and all employee benefit
matters relating to the Transferred Employees.
4.3 COMPLIANCE WITH LAW. BUYER agrees that it shall comply with any
--------------------
and all applicable requirements, if any, under the Worker Adjustment and
Retraining Notification Act and any similar state laws in connection with the
transactions contemplated by this Agreement. BUYER hereby agrees to indemnify
and to hold SELLER and its affiliates and its and their officers, directors,
agents and employees harmless from and against any and all liability, loss, cost
and expense, however arising, as a result of the failure of BUYER to comply with
its obligations as set forth in this Section.
4.4 ACTIONS TO BE TAKEN BY SELLER. SELLER covenants to BUYER that it
-----------------------------
will do or cause the following to occur:
(a) SOLICITATION OF TRANSFERRED EMPLOYEES. Except with the
--------------------------------------
written consent of BUYER, for a period of two (2) years following the Closing
Date, SELLER will not directly solicit Transferred Employees as prospective
officers or employees of SELLER; provided, however, that SELLER shall not be
prohibited or restricted from hiring a Transferred Employee if such Transferred
Employee contacts SELLER or an affiliate or the parent organization of SELLER to
seek hiring or retention, whether in response to general advertising or
otherwise, or if a Transferred Employee is terminated by BUYER.
(b) EMPLOYEE BENEFIT PROGRAMS. SELLER's obligations to
--------------------------
employees of the Offices, including Transferred Employees, will be as set forth
in established policies of SELLER (or SELLER's parent organization) and SELLER
shall continue its employee benefit programs in full force and effect as benefit
programs for Transferred Employees through the Closing Date. After the Closing,
SELLER shall retain the responsibility and liability for the funding and payment
of all claims incurred under such employee benefit programs through the Closing
Date. BUYER shall have no obligation or liability to compensate Transferred
Employees for benefits of any kind earned, accrued, promised and/or provided to
Transferred Employees as employees of SELLER, except with respect to eligibility
and vesting as set forth in SECTION 4.2, above. SELLER hereby agrees to
-----------
indemnify and to hold BUYER and its affiliates and its and their officers,
directors, agents and employees harmless from and against any and all liability,
loss, cost and expense, however arising, as a result of the failure of SELLER to
comply with its obligations as set forth in this Section.
(c) The obligations of SELLER pursuant to this SECTION 4.4 shall
-----------
survive the Closing.
ARTICLE V
---------
CONDITIONS PRECEDENT TO CLOSING
-------------------------------
5.1 CONDITIONS TO SELLER'S OBLIGATIONS. The obligations of SELLER to
-----------------------------------
consummate the Acquisition are subject to the satisfaction, or the waiver in
writing by SELLER to the extent permitted by applicable law, of the following
conditions at or prior to the Closing:
(a) PRIOR REGULATORY APPROVAL. All filings and registrations
--------------------------
with, and notifications to, all federal and state authorities required for
consummation of the Acquisition shall have been made, all approvals and
authorizations of all federal and state authorities required for consummation of
the Acquisition shall have been received and shall be in full force and effect,
and all applicable waiting periods shall have passed.
(b) REPRESENTATIONS AND WARRANTIES. The representations and
-------------------------------
warranties of BUYER set forth in this Agreement shall be true and correct in all
material respects on the Closing Date with the same effect as though all such
representations and warranties had been made on and as of such date, and BUYER
shall have delivered to SELLER a Certificate, dated as of the Closing Date, to
the effect specified in SCHEDULE G to this Agreement.
----------
(c) COVENANTS. Each and all of the covenants and agreements of
----------
BUYER to be performed or complied with at or prior to the Closing pursuant to
this Agreement shall have been duly performed or complied with in all material
respects by BUYER, or waived in writing by SELLER, and BUYER shall have
delivered to SELLER a Certificate, dated as of the Closing Date, to the effect
specified in SCHEDULE G to this Agreement.
----------
(d) NO PROCEEDING OR PROHIBITION. At the time of the Closing,
-----------------------------
there shall not be any litigation, investigation, inquiry or proceeding pending
or threatened in or by any court or agency of any government or by any third
party which in the reasonable judgment of the executive officers of SELLER, with
the advice of counsel, presents a bona fide claim to restrain, enjoin or
prohibit consummation of the transactions contemplated by this Agreement or
which might result in rescission in connection with such transactions, and
SELLER shall have been furnished with a Certificate, substantially in the form
as specified in SCHEDULE G to this Agreement, dated as of the Closing Date
----------
and signed by the Chairman, President or an Executive Vice President and
Secretary or Assistant Secretary of BUYER, to the effect that no such
litigation, investigation, inquiry or proceeding is pending or, to the best of
their knowledge, threatened.
(e) RECEIPT OF CONSENTS OF THIRD PARTIES. SELLER shall have
-------------------------------------
received prior to the Closing Date, in form and substance satisfactory to BUYER,
any and all consents, approvals or waivers of and releases by third parties as
SELLER and BUYER may deem necessary or appropriate to enable it to consummate
the transactions contemplated by this Agreement, except where failure to obtain
a consent would not have a material adverse effect on SELLER's ability to
consummate the transactions contemplated by this Agreement, on the Assets or on
BUYER's operation of the Offices after the Closing; provided, however, that
BUYER shall have no right to approve or reject any consent, approval or waiver
needed by SELLER from its primary bank lender.
5.2 CONDITIONS TO BUYER'S OBLIGATIONS. The obligations of BUYER to
----------------------------------
consummate the Acquisition are subject to the satisfaction, or the waiver in
writing by BUYER to the extent permitted by applicable law, of the following
conditions at or prior to the Closing:
(a) PRIOR REGULATORY APPROVAL. All filings and registrations
--------------------------
with, and notifications to, all federal and state authorities required for
consummation of the Acquisition and operation of the Offices by BUYER shall have
been made, all approvals and authorizations of all federal and state authorities
required for consummation of the Acquisition and operation of the Offices by
BUYER shall have been received and shall be in full force and effect, and all
applicable waiting periods shall have passed.
(b) REPRESENTATIONS AND WARRANTIES. The representations and
-------------------------------
warranties of SELLER set forth in this Agreement shall be true and correct in
all material respects on the Closing Date with the same effect as though all
such representations and warranties had been made on and as of such date (unless
a different date is specifically indicated in such representations and
warranties), and SELLER shall have delivered to BUYER a Certificate, dated as of
the Closing Date, to the effect specified in SCHEDULE H to this Agreement.
----------
(c) COVENANTS. Each and all of the covenants and agreements of
----------
SELLER to be performed or complied with at or prior to the Closing pursuant to
this Agreement shall have been duly performed or complied with in all material
respects by SELLER, or waived in writing by BUYER, and SELLER shall have
delivered to BUYER a Certificate, dated as of the Closing Date, to the effect
specified in SCHEDULE H to this Agreement.
----------
(d) NO PROCEEDINGS OR PROHIBITIONS. At the time of the Closing,
-------------------------------
there shall not be any litigation, investigation, inquiry or proceeding pending
or threatened in or by any court or agency of any government or by any third
party which in the reasonable judgment of the executive officers of BUYER, with
the advice of counsel, presents a bona fide claim to restrain, enjoin or
prohibit consummation of the transactions contemplated by this Agreement or
which might result in rescission in connection with such transactions, and BUYER
shall have been furnished with a Certificate, substantially in the form as
specified in SCHEDULE H to this Agreement, dated as of the Closing Date and
----------
signed by the Chairman, President or an Executive Vice President and the
Secretary or Assistant Secretary of SELLER, to the effect that no such
litigation, investigation, inquiry or proceeding is pending, or, to the best of
their knowledge, threatened.
(e) OWNED REAL ESTATE. The Title Commitment shall have been
-----------------
delivered to BUYER and updated to or as close as practicable to (but in no event
more than five (5) business days prior to) the Closing Date, in accordance with
the terms of SECTION 2.1(B), and such updated Title Commitment shall not include
--------------
any exceptions other than the Permitted Exceptions.
(f) FIXED ASSETS. There shall have been no material alteration
-------------
in or adjustment to the Fixed Assets. For purposes of this SUBSECTION (F), it
--------------
will not be considered to be a material alteration or adjustment to the Fixed
Assets if (i) there is damage or destruction to the Fixed Assets as contemplated
by SECTION 2.1(E) herein and SELLER complies with said SECTION 2.1(E), (ii)
-------------- -------------
SELLER makes additions to the Fixed Assets with the prior written consent of
BUYER or (iii) SELLER makes additions to the Fixed Assets without BUYER's
consent in order to correct emergency situations which are threatening to impair
SELLER's operations at an Office.
(g) RECEIPT OF CONSENTS OF THIRD PARTIES. BUYER shall have
-------------------------------------
received, prior to the Closing Date, in form and substance satisfactory to
BUYER, any and all consents, approvals or waivers of and releases by third
parties as BUYER, in its reasonable judgment, may deem necessary or appropriate
to enable it to consummate the transactions contemplated by this Agreement
without additional cost, expense or liability to BUYER or its affiliates.
5.3 NON-SATISFACTION OF CONDITIONS PRECEDENT. The non-occurrence or
-----------------------------------------
delay of the Closing of the Acquisition by reason of the failure of timely
satisfaction of all conditions precedent to the obligations of any party hereto
to consummate the Acquisition shall in no way relieve such party of any
liability to the other party hereto, nor be deemed a release or waiver of any
claims the other party hereto may have against such party, if and to the extent
the failure of timely satisfaction of such conditions precedent is attributable
to the actions or inactions of such party.
5.4 WAIVERS OF CONDITIONS PRECEDENT. The conditions specified in
--------------------------------
SECTIONS 5.1 AND 5.2 herein shall be deemed satisfied or, to the extent not
--------------------
satisfied, waived if the Closing occurs, unless such failure of satisfaction is
reserved in a writing executed by BUYER and SELLER at or prior to the Closing.
ARTICLE VI
----------
CLOSING
-------
6.1 CLOSING AND CLOSING DATE. The Acquisition contemplated by this
-------------------------
Agreement shall be consummated and closed (the "CLOSING") at such location as
shall be mutually agreed upon by BUYER and SELLER, on a date to be mutually
agreed upon by BUYER and SELLER which date shall be after all required
regulatory approvals have been obtained and all applicable regulatory waiting
periods associated therewith have expired. The precise date on which the
Closing shall occur (the "CLOSING DATE") shall be confirmed by the parties in
writing not more than five (5) days after receiving all required regulatory
approvals, and the Closing Date shall not be later than the later of (i) the
Termination Date (as defined in SECTION 9.2(D) hereof), or (ii) fourteen (14)
--------------
days after receiving all required regulatory approvals; provided, however, that
the Closing shall not occur prior to the date on which SELLER's and BUYER's data
processing providers can convert the information relating to the Offices to
BUYER's system; provided further, the Closing shall not be unreasonably delayed
in order for BUYER to obtain the approval of any closing and/or relocation
applications filed by BUYER.
6.2 SELLER'S ACTIONS AT CLOSING. At the Closing (unless another time
----------------------------
is specifically stated in SECTION 6.4 hereof), SELLER shall, with respect to the
------------
Offices:
(a) deliver to BUYER at the Offices such of the Assets purchased
hereunder as shall be capable of physical delivery, including, without
limitation, all assets comprising the safe deposit box business, if any, of the
Offices;
(b) execute, acknowledge and deliver to BUYER all such special
warranty deeds (qualified, as necessary, to reflect all Permitted Exceptions),
endorsements, assignments, bills of sale and other instruments of conveyance,
assignment and transfer as shall reasonably be necessary or advisable to
consummate the sale, assignment and transfer of the Assets sold or assigned to
BUYER hereunder (and such documents shall be reasonably acceptable to BUYER's
counsel) and such other documents as the title company may reasonably require,
the originals (or copies, if originals are not available) of all blueprints,
construction plans, specifications and plat relating to the Owned Real Estate,
but only to the extent that such documents are now in SELLER's possession or
which SELLER has reasonable access to, and such other documents or instruments
as may be reasonably required by BUYER, required by other provisions of this
Agreement or reasonably necessary to effectuate the Closing;
(c) assign, transfer and make available to BUYER such of the
following records as exist and are available and maintained at the Offices (in
whatever form or medium then maintained by SELLER) pertaining to the Deposit
Liabilities:
(i) images of signature cards, orders, contracts and
agreements between SELLER and depositors of the Offices and records of
similar character; and
(ii) a trial balance listing of records of account; and
(iii) all other miscellaneous records, statements and other
data and materials, where available, maintained by SELLER relative to any
Deposit Liabilities being assumed by BUYER and Overdraft Loans being
acquired by BUYER;
(d) assign, transfer and deliver to BUYER such safe deposit and
safekeeping files and records (in whatever form or medium then maintained by
SELLER) pertaining to the safe deposit business of the Offices transferred to
BUYER hereunder as exist and are available, together with the contents of the
safe deposit boxes maintained at the Offices, as the same exist as of the close
of business on the day immediately preceding the Closing Date (subject to the
terms and conditions of the leases or other agreements relating to the same) and
all securities and other records, if any, held by the Offices for their
customers as of the close of business on the day immediately preceding the
Closing Date (subject to the terms and conditions of the agreements or receipts
relating to the same);
(e) make available and transfer to BUYER on the Closing Date any
funds required to be paid to BUYER pursuant to the terms of this Agreement by
wire transfer of immediately available funds;
(f) execute, acknowledge and deliver to BUYER all Certificates
and other documents required to be delivered to BUYER by SELLER at the Closing
pursuant to the terms of this Agreement; and
(g) assign to BUYER all SELLER's rights in and to the Assumed
Contracts which are assignable and which constitute part of the Assets.
6.3 BUYER'S ACTIONS AT THE CLOSING. At the Closing (unless another
-------------------------------
time is specifically stated in SECTION 6.4 hereof), BUYER shall, with respect
-----------
to the Offices:
(a) execute, acknowledge and deliver to SELLER, to evidence the
assumption of the liabilities and obligations of SELLER by BUYER hereunder, an
instrument of assumption in the form set forth in SCHEDULE J to this Agreement,
----------
and SELLER shall then accept, execute and acknowledge such instrument. Copies
of such instrument may be recorded in the public records at the option of either
party hereto. The execution and acknowledgment of such instrument shall not be
deemed to be a waiver of any rights or obligations of any party to this
Agreement;
(b) receive, accept and acknowledge delivery of all Assets and
all records and documentation relating thereto, sold, assigned, transferred,
conveyed or delivered to BUYER by SELLER hereunder, and BUYER shall be
responsible for coordinating with the title companies to effectuate the
recording of special warranty deeds on or after Closing and securing GAP
insurance coverage in the event the special warranty deeds are recorded post-
closing, at BUYER's sole cost and expense;
(c) execute and deliver to SELLER such written receipts for the
Assets, properties, records and other materials assigned, transferred, conveyed
or delivered to BUYER hereunder as SELLER may reasonably have requested at or
before the Closing;
(d) pay to SELLER on the Closing Date any funds required to be
paid to SELLER at the Closing pursuant to the terms of this Agreement;
(e) execute, acknowledge and deliver to SELLER all Certificates
and other documents required to be delivered to SELLER by BUYER at the Closing
pursuant to the terms hereof; and
(f) execute, acknowledge and deliver to SELLER an agreement
wherein BUYER assumes obligations with respect to the Assumed Contracts and the
IRA's for all periods following the Closing Date with respect thereto.
6.4 METHODS OF PAYMENT. Subject to the adjustment procedures set
-------------------
forth in this SECTION 6.4, the transfer of the funds, if any, due to BUYER or
-----------
to SELLER, as the case may be, as set forth pursuant to the terms of
SECTION 1.4(A) hereof, shall be made on the Closing Date in immediately
--------------
available United States Federal Funds. At least two (2) business days prior to
the Closing, SELLER and BUYER shall provide written notice to one another
indicating the account and bank to which such funds shall be wire transferred.
In order to facilitate the Closing, the parties agree: (i) that the amount of
funds transferred on the Closing Date, pursuant to SECTION 1.4(A) hereof, shall
--------------
be computed based upon (a) cash on hand at the Offices as of the close of
business on a day to be agreed between the parties, not more than three (3)
business days preceding the Closing Date, (b) the aggregate book value plus
accrued interest of the Overdraft Loans as of the close of business on a day to
be agreed upon by the parties, no more than three (3) business days preceding
the Closing Date, and (c) the aggregate balance of all Deposit Accounts
(including interest posted or accrued to such accounts and Individual Retirement
Accounts which have become IRAs as a result of the written appointment of BUYER
as the successor custodian and the failure of the account holders to object to
such appointment) as of the close of business on a day to be agreed between the
parties, not more than three (3) business days preceding the Closing Date, and
the parties shall execute a Preliminary Closing Statement in substantially the
form set forth in SCHEDULE M attached hereto. Furthermore, within ten (10)
----------
business days after the Closing, the parties shall make appropriate post-closing
adjustments, consistent with the provisions of SECTION 1.4 hereof, based upon
-----------
actual Deposit Accounts as of the Closing Date, Overdraft Loans as of the
Closing Date, and cash transactions which took place on the Closing Date or
which took place prior to the Closing Date but which were not reflected in the
Preliminary Closing Statement, and shall execute the Final Settlement Statement
in substantially the form set forth in SCHEDULE N attached hereto. In addition,
----------
prorations of prepaid and deferred income and expenses that cannot be reasonably
calculated at the Closing shall be settled and paid based on actual amounts and
calculations as soon as possible after the Closing; provided, however, that
there shall not be any reprorations of the 2004 real estate taxes or the FDIC
deposit insurance.
6.5 EFFECTIVENESS OF CLOSING. Upon the satisfactory completion of
-------------------------
the Closing, which does not include and shall not require completion of the
adjustment and proration arrangements set forth in SECTION 6.4, the Acquisition
-----------
shall be deemed to be effective, and the Closing shall be deemed to have
occurred.
ARTICLE VII
-----------
CERTAIN TRANSITIONAL MATTERS
----------------------------
7.1 TRANSITIONAL ACTION BY BUYER. After the Closing, unless another
-----------------------------
time is otherwise indicated:
(a) BUYER shall: (i) pay in accordance with the law and
customary banking practices and applicable Deposit Account contract terms, all
properly drawn and presented checks, negotiable orders of withdrawal, drafts,
debits and withdrawal orders presented to BUYER by mail, over the counter,
through electronic media or through the check clearing system of the banking
industry, by depositors of the Deposit Accounts assumed by BUYER hereunder,
whether drawn on checks, negotiable orders of withdrawal, drafts or withdrawal
order forms provided by BUYER or SELLER; and (ii) in all other respects
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 Deposit Accounts are assumed by BUYER hereunder; provided,
however, that any obligations of BUYER pursuant to this SECTION 7.1(A) to honor
--------------
checks, negotiable orders of withdrawal, drafts and withdrawal orders on forms
provided by SELLER and carrying its imprint (including its name and transit
routing number) shall not apply to any checks, drafts, withdrawal orders or
returned items (i) presented to BUYER more than one hundred eighty (180) days
following the Closing Date or (ii) on which a stop payment has been requested by
the deposit customer. To the extent permitted by the Internal Revenue Service,
BUYER shall submit and file any required reports on IRS Forms 1098 and 1099 as
well as all other informational tax reports with respect to interest paid on
Deposit Liabilities for the fiscal year during which the Closing Date occurs
(and SELLER shall provide BUYER with the information required to produce such
reports). The provisions of this SECTION 7.1(A) shall in no way limit BUYER's
--------------
duties or obligations arising under SECTION 1.3(B) hereof.
--------------
(b) BUYER shall, not earlier than the time of procurement of all
regulatory approvals required for consummation of the Acquisition nor later than
five (5) days prior to the Closing Date, notify all depositors of the Offices by
letter, reasonably acceptable to SELLER, produced in, if appropriate, several
similar, but different forms calculated to provide necessary and specific
information to the owners of particular types of accounts, of BUYER's pending
assumption of the Deposit Liabilities hereunder and, if applicable, BUYER's
proposed closing and/or relocation of an Office, and, in appropriate instances,
notify depositors that on and after the Closing Date certain SELLER deposit-
related services and/or SELLER's debit card and automatic teller machine
services impacted by the Acquisition will be terminated. As an enclosure to
such notices, BUYER may furnish appropriate depositors with brochures, forms and
other written materials related or necessary to the assumption of the Deposit
Accounts by BUYER and the conversion of said accounts to BUYER accounts,
including the provision of checks to appropriate depositors using the forms of
BUYER with instructions to such depositors to utilize such BUYER checks on and
after the Closing Date and thereafter to destroy any unused checks on SELLER's
forms. The expenses of the printing, processing and mailing of such letter
notices and providing new BUYER checks and other forms and written materials to
appropriate customers shall be borne by BUYER. Before Closing, except as
provided in this SECTION 7.1(B), BUYER will not contact SELLER's customers
--------------
except as may occur in connection with advertising or solicitations directed to
the public generally or in the course of obtaining the requisite regulatory
approvals of the Acquisition. Any and all such notices, communications and
filings which may be required to be provided prior to the Closing Date shall be
submitted on a timely basis for review by SELLER and shall be subject to the
written approval of SELLER prior to delivery to any third party.
(c) BUYER shall promptly pay to SELLER an amount equivalent to
the amount of any checks, negotiable orders of withdrawal, drafts, withdrawal
orders or returned items (net of the applicable Acquisition Consideration paid
by BUYER with respect to the Deposit Liabilities represented by any such
instrument) credited as of the close of business on the Closing Date to a
Deposit Account assumed by BUYER hereunder which are returned uncollected to
SELLER after the Closing Date. The foregoing shall include an amount equivalent
to holds placed upon such deposit account for items cashed by SELLER as of the
close of business on the Closing Date.
(d) All tasks and obligations concerning the provision of data
processing services to or for the Offices after the Closing, other than those
specifically set forth in, and to the extent assumed by SELLER pursuant to,
SECTION 7.2(B) hereof, if any, are the sole and exclusive responsibility of, and
--------------
shall be performed solely and exclusively by, BUYER.
(e) BUYER shall, not later than the close of business on the
business day immediately following the Closing Date, supply suitable government-
backed securities as security for any deposits of governmental units included
among the Deposit Liabilities for which SELLER had provided similar security.
(f) BUYER shall use its best efforts to cooperate with SELLER in
assuring an orderly transition of ownership of the Assets and responsibility for
the liabilities, including the Deposit Liabilities, assumed by BUYER hereunder.
(g) The duties and obligations of BUYER in this SECTION 7.1
-----------
shall survive the Closing.
7.2 TRANSITIONAL ACTIONS BY SELLER. After the Closing, unless
-------------------------------
another time is otherwise indicated:
(a) SELLER shall use its best efforts to cooperate with BUYER in
assuring an orderly transition of ownership of the Assets and responsibility for
the liabilities, including the Deposit Liabilities, assumed by BUYER hereunder.
SELLER shall provide final statements as of the Closing Date, in conjunction
with appropriate Deposit Liabilities, with interest and service charges prorated
to the close of business on the Closing Date, including the information required
to produce the IRS reports pursuant to SECTION 7.1(A).
--------------
(b) SELLER's sole and exclusive responsibilities concerning the
provision of data processing services to or for the Deposit Accounts of the
Offices after the Closing Date, if any, shall be as set forth in this
SECTION 7.2(B). As soon as practicable following the date of this Agreement,
--------------
SELLER shall provide BUYER with applicable product functions and specifications
relating to the data processing support required for the Deposit Accounts and
safe deposit business (if such data processing support currently is provided
with respect to such business) maintained at the Offices (such Deposit Accounts
and safe deposit business, if applicable, collectively, the "ACCOUNTS"). As
soon as practicable following the date of this Agreement, SELLER shall provide
to BUYER file formats relating to the Accounts and up to three (3) sets of test
tapes related to the Accounts in generic form which are machine readable on IBM
(or IBM compatible) equipment or which shall be on eighteen track 3390
cartridges (non-compressed data). BUYER shall review and analyze such
materials, including, but not limited to, the file formats and test tapes, and
shall advise SELLER in writing of any defects or concerns relating thereto not
later than ten (10) business days following receipt thereof.
(c) Prior to the Closing Date, SELLER shall cooperate with
BUYER, at BUYER's expense and at no expense to SELLER, in making Transferred
Employees available at reasonable times for whatever program of training BUYER
deems advisable; provided, however, that BUYER shall conduct such training
program in a manner that does not materially interfere with or prevent the
performance of the normal duties and activities of such Transferred Employees.
BUYER shall make request of SELLER for training opportunities prior to the
Closing Date, and shall reimburse SELLER at the Closing for any and all costs
relating to such training including, but not limited to, regular and overtime
salary for Transferred Employees involved in training for the period of such
training, travel costs, and all expenses incurred by SELLER or such Transferred
Employees in conjunction with the training. Such requests, which shall specify
the time, duration and place of such training, must be approved by SELLER.
(d) SELLER shall cooperate with BUYER, at no expense to SELLER,
to make provision for the installation of teller and platform equipment in the
Offices subject to approval by SELLER; provided, however, that BUYER shall
arrange for the installation and placement of such equipment at such times and
in a manner that does not significantly interfere with the normal business
activities and operation of SELLER or the Offices.
(e) SELLER shall resign as custodian of each ▇▇▇ account
maintained at the Offices and assign the custodianship of such accounts to BUYER
upon Closing subject to receipt of applicable customer consents and other
provisions of this Agreement including the provisions of SECTION 8.11 hereof.
------------
(f) SELLER shall terminate its ATM/debit card service effective
as of the close of business on the business day preceding the Closing Date or
such other date and time as SELLER and BUYER may agree. Such terminations will
be preceded by the notice described in SECTION 7.1(B) herein. SELLER shall have
--------------
no obligation with respect to conversion or change over with respect to direct
deposit or payroll and retirement payments service relating to the Deposit
Accounts following the Closing, and BUYER shall assume all responsibility and
liability with respect thereto following the Closing. SELLER will continue to
redirect and/or pass through relevant ACH transactions on Deposit Accounts for a
period of ninety (90) days following the Closing Date.
(g) As of the opening of business on the first day after the
Closing Date, SELLER and BUYER shall provide the appropriate Federal Reserve
Bank (the "FRB") with all information necessary in order to expedite the
clearing and sorting of all checks, drafts, instruments and other commercial
paper relative to the Deposit Liabilities (collectively, the "PAPER ITEMS"). In
the event the FRB is unable to forward such Paper Items, the Paper Items
received by SELLER from the FRB shall be made available for pickup by BUYER the
next business day after such Paper Items are received. SELLER will continue to
make the Paper Items available for pickup by BUYER for a period of one hundred
eighty (180) days following the Closing Date. BUYER shall bear all charges and
costs imposed by the FRB in connection with the reassignment of account number
ranges for sorting the Paper Items.
BUYER and SELLER shall arrange for appropriate daily settlement
between the parties in order that the transmission of all monies associated with
the matters set forth in this SECTION 7.2(G) and all other transitional matters
--------------
might be effected promptly.
SELLER shall not be liable to BUYER for any failure to provide
the data required by this SECTION 7.2(G) to the extent any such failure results
--------------
from causes beyond SELLER's control, including, but not limited to, war, strike
or other labor disputes, acts of God, errors or failures of the FRB and/or a
participating regional or local clearinghouse, or equipment failure or other
emergency wherein SELLER and/or its agent processor has been unable to process
inclearings from the FRB or such clearinghouse; provided, however, if the data
required by this SECTION 7.2(G) can not be provided as a result of
--------------
causes beyond SELLER's control, BUYER may delay its performance of its
obligations hereunder until such data is available.
(h) SELLER shall, not earlier than the time of procurement of
all regulatory approvals required for consummation of the Acquisition nor later
than five (5) days prior to the Closing Date, notify all depositors of the
Offices by letter, reasonably acceptable to BUYER, produced in, if appropriate,
several similar, but different forms calculated to provide necessary and
specific information to the owners of particular types of accounts, of BUYER's
pending assumption of the Deposit Liabilities hereunder, and, if applicable,
BUYER's proposed closing and/or relocation of an Office, and, in appropriate
instances, notify depositors that on and after the Closing Date certain SELLER
deposit-related services and/or SELLER's debit card and automatic teller machine
services, will be terminated. The expenses of the printing, processing and
mailing of such letter notices shall be borne by SELLER. Anything to the
contrary herein notwithstanding, nothing in this Agreement shall be deemed to
constitute an assumption by SELLER of the duties and obligations of BUYER with
respect to the provision of applicable notices, communications and filings
relating to changes in the terms of any Deposit Accounts as set forth in this
Agreement.
(i) For a period of sixty (60) days after the Closing Date,
SELLER will forward to BUYER, within two (2) business days of receipt, payments
received by SELLER with respect to the Overdraft Loans and the Overdrafts.
BUYER will forward, within two (2) business days of receipt, payments received
by BUYER with respect to any loans not assigned to BUYER under this Agreement.
BUYER and SELLER further agree to refer customers to the offices of the other
when such customers present payments over the counter to the party not holding
their respective loan.
(j) BUYER shall have the right to put back to SELLER any
Overdraft transferred to BUYER pursuant to this Agreement in the event that
BUYER is unable for any reason within thirty (30) days following the Closing
Date to collect the full amount of the Overdraft. BUYER shall have the right to
put back to SELLER any Overdraft Loan transferred to BUYER pursuant to this
Agreement in the event that BUYER has received no payment from the borrower on
such Overdraft Loan within thirty (30) days following the Closing Date. SELLER
shall pay to BUYER within three (3) days of BUYER's tender of the Overdraft
Loans and/or Overdrafts pursuant to this Section the amount outstanding thereon
and BUYER upon receipt of such payment shall transfer all of its right, title
and interest in such Overdraft Loans and/or Overdrafts to SELLER.
(k) The duties and obligations of the parties in this SECTION
7.2 shall survive the Closing.
7.3 ATMS AND DEBIT CARDS.
---------------------
(a) SELLER shall provide to BUYER within ten (10) days of the
execution of this Agreement and again thirty (30) days before the Closing Date,
a test tape, along with a file format or file layout and a production tape
containing customer name, card number, withdrawal limits, the Deposit Accounts
activated by, accessible to or committed to such cards, issue dates and/or open
dates, last transaction dates, and expiration dates as to all ATM and debit
cards issued to customers of the SELLER Offices processor to deactivate the
operation of the SELLER ATM and debit cards completely or to deactivate or
disconnect the Deposit Accounts from such SELLER ATM and debit cards no later
than the business day cutoff on the date prior to the Closing Date so that all
activity generated by the SELLER ATM and debit cards shall have settled prior to
the Closing Date. All transactions and activity related to the SELLER ATM and
debit cards following the Closing Date which are received or forwarded to SELLER
will be accepted and forwarded by SELLER to BUYER along with all corresponding
funds. SELLER thereafter agrees to immediately notify its processor to
deactivate such ATM and debit cards and to forward all transactions related
thereto directly to BUYER.
(b) SELLER agrees to deactivate the ATMs located at the Offices
on or before the business day cutoff on the day prior to the Closing Date.
Thereafter, BUYER shall reconfigure the ATMs to its standards for activation
after the business day cutoff on the Closing Date.
(c) BUYER and SELLER agree to cooperate with each other to
assure that all transactions originated through the ATM or originated with the
ATM Cards prior to or on the Closing Date shall be for the account of SELLER and
all transactions originated after the Closing Date shall be for the account of
BUYER. A post-closing adjustment shall be made in the manner set forth in
SECTION 6.4 hereof to reflect all such transactions which cannot be reasonably
-----------
calculated as of the Closing.
7.4 ENVIRONMENTAL MATTERS.
----------------------
Within thirty (30) days after the date of this Agreement, SELLER
shall provide BUYER with current completed Phase I environmental reports ("PHASE
I REPORTS") of the Owned Real Estate, expressly addressed to or for the benefit
of BUYER and conducted by an independent environmental investigation and testing
firm selected by SELLER and reasonably acceptable to BUYER. The scope and
conduct of the Phase I Reports shall at a minimum be according to current ASTM
standards for environmental assessment (ASTM E-1527-00), and the shall also
include an examination but not testing of the potential for environmental
concerns inside the structures on the Owned Real Estate such as lead paint,
mercury ballasts, radon, PCBs and mold. In addition, SELLER shall allow BUYER
as part of the Phase I inspection to arrange for and shall cooperate with the
inspection and testing of the Owned Real Estate for asbestos containing
materials and related conditions of indoor air quality by a qualified asbestos
Inspector and Hygienist to insure that the interior of the Owned Real Estate is
in compliance with applicable OSHA regulations, including 29 C.F.R. Section
1910.1001 (the "ASBESTOS ASSESSMENT"). The SELLER's cost obligation in
connection with obtaining the Phase I Reports and the Asbestos Assessment is
limited to $4,000. BUYER will pay all costs in excess of such amount, provided
BUYER has pre-approved and expressly agreed in advance to a cost in excess
thereof. In the event a Phase I Report or Asbestos Assessment discloses any
potential environmental condition that in the reasonable discretion of BUYER
warrants further review or investigation, BUYER shall give written notice to
SELLER within five (5) Business Days of delivery of the respective Phase I
Report or Asbestos Assessment results (the "PHASE II ELECTION NOTICE PERIOD")
that BUYER desires to obtain a completed Phase II environmental report ("PHASE
II REPORT") for the affected portion of the Owned Real Estate within an
additional forty-five (45) day period by the same environmental investigation
and testing firm that prepared the Phase I Reports or Asbestos Assessment as
appropriate; provided, however, that all testing and sampling conducted by such
firm(s) shall be agreed upon in advance by both BUYER and SELLER. All costs and
expenses associated with the Phase II Report shall be paid by BUYER. If any
Phase II Report or the Asbestos Assessment reveal levels of environmental
contaminants which will require remediation, SELLER may elect to remediate the
affected Owned Real Estate at its expense or to retain such Owned Real Estate
and related Fixed Assets and transfer all of the other Assets and the Deposit
Liabilities related to such Owned Real Estate to BUYER with the amount paid
pursuant to SECTION 1.4(A)(II) reduced by $405,390 in the case of the ▇▇▇▇▇▇▇▇
------------------
Owned Real Estate and $147,544 in the case of the Oregon Owned Real Estate;
provided, however, that if the SELLER elects to retain the Owned Real Estate
located in Oregon, Illinois, BUYER shall have the right to terminate this
Agreement or to elect to lease the Oregon Owned Real Estate by giving notice to
SELLER within ten (10) Business Days of BUYER's receipt of the notice from
SELLER. If BUYER and SELLER are unable to enter into a lease acceptable to both
parties within thirty (30) days of BUYER's delivery of the notice to SELLER,
BUYER or SELLER shall have the right to terminate this Agreement. If BUYER
leases the Oregon Owned Real Estate and related Fixed Assets from SELLER, the
amount paid pursuant to SECTION 1.4(A)(II) shall be reduced by $147,544.
------------------
SELLER agrees that if it elects to retain the ▇▇▇▇▇▇▇▇ Owned Real Estate, SELLER
will not sell or lease such Owned Real Estate to another financial institution
for at least forty-two (42) months following the Closing Date. BUYER and its
employees, agents and representatives shall hold the contents of all Phase I
Reports, Phase II Reports and Asbestos Assessment in confidence and disclose the
contents thereof only with the prior written consent of SELLER or as may be
required under applicable law.
7.5 EFFECT OF TRANSITIONAL ACTION. Except as and to the extent
-----------------------------
expressly set forth in this ARTICLE VII, nothing contained in this
-----------
ARTICLE VII shall be construed to be an abridgment or nullification of the
-----------
rights, customs and established practices under applicable banking laws and
regulations as they affect any of the matters addressed in this ARTICLE VII.
------------
ARTICLE VIII
------------
GENERAL COVENANTS AND INDEMNIFICATION
-------------------------------------
8.1 CONFIDENTIALITY OBLIGATIONS OF BUYER. From and after the date
-------------------------------------
hereof, BUYER and its affiliates and parent company shall treat all information
received from SELLER concerning the business, assets, operations and financial
condition of SELLER and its affiliates and its and their customers (including,
without limitation, the Offices), as confidential, unless and to the extent that
BUYER can demonstrate that such information was already known to BUYER and its
affiliates, if any, or in the public domain, and BUYER shall not use any such
information (so required to be treated as confidential) for any purpose except
in furtherance of the transactions contemplated hereby. Upon the termination of
this Agreement, BUYER shall, and shall cause its affiliates, if any, to,
promptly return all documents and work papers containing, and all copies of, any
such information (so required to be treated as confidential) received from or on
behalf of SELLER in connection with the transactions contemplated hereby. The
covenants of BUYER contained in this SECTION 8.1 are of the essence and shall
-----------
survive any termination of this Agreement, but shall terminate at the Closing,
if it occurs, with respect to any information that is limited solely to the
activities and transactions of the Offices; provided, however, that neither
BUYER nor any of its affiliates shall be deemed to have violated the covenants
set forth in this SECTION 8.1 if BUYER shall in good faith disclose any of
-----------
such confidential information in compliance with any legal process, order or
decree issued by any court or agency of government of competent jurisdiction.
It is expressly acknowledged by SELLER that all information provided to BUYER
related to the Acquisition may be provided to BUYER's affiliates as necessary
for the purpose of consummating the Acquisition. The covenants and obligations
of BUYER hereunder shall survive the Closing and any earlier termination of this
Agreement.
8.2 CONFIDENTIALITY OBLIGATIONS OF SELLER. From and after the date
--------------------------------------
hereof, SELLER, its affiliates and its parent corporation shall treat all
information received from BUYER concerning BUYER's business, assets, operations
and financial condition as confidential, unless and to the extent SELLER can
demonstrate that such information was already known to SELLER or its affiliates
or in the public domain, and SELLER shall not use any such information (so
required to be treated as confidential) for any purpose except in furtherance of
the transactions contemplated hereby. Upon the termination of this Agreement,
SELLER shall promptly return all documents and work papers containing, and all
copies of, any such information (so required to be treated as confidential)
received from or on behalf of BUYER in connection with the transactions
contemplated hereby. The covenants of SELLER contained in this SECTION 8.2 are
-----------
of the essence and shall survive any termination of this Agreement; provided,
however, that neither SELLER nor any of its affiliates shall be deemed to have
violated the covenants set forth in this SECTION 8.2 if SELLER shall in good
-----------
faith disclose any of such confidential information in compliance with any legal
process, order or decree issued by any court or agency of government of
competent jurisdiction. It is expressly acknowledged by BUYER that all
information provided to SELLER related to the Acquisition may be provided to
Blackhawk Bancorp, Inc. and SELLER's affiliates for the purpose of consummating
the Acquisition. The covenants and obligations of SELLER hereunder shall
survive the Closing and any earlier termination of this Agreement.
8.3 INDEMNIFICATION BY SELLER. From and after the Closing Date,
-------------------------
SELLER shall indemnify, hold harmless, and defend BUYER from and against: (a)
any claim, loss, damage, costs, or expenses, including reasonable attorneys'
fees and expenses of litigation, which BUYER may incur or suffer by reason of
the inaccuracy of any representation or warranty made by SELLER or the breach of
any of the agreements or covenants of SELLER contained herein or in accordance
with the provisions hereof; and (b) any loss, damage, cost or expense (including
reasonable attorneys' fees and expenses of litigation), which is incurred or
suffered by BUYER and which is based upon or pertains to the operation of the
Offices, the Deposit Liabilities, the safe deposit business conducted at the
Offices or the Assets prior to the Closing Date (excluding any liability or
obligation of any nature pertaining to the transaction contemplated hereby).
The obligations of SELLER under this SECTION 8.3 shall be contingent upon
-----------
BUYER giving SELLER written notice (i) of receipt by BUYER of any process and/or
pleadings in or relating to any actions, suits or proceedings of the kinds
described in this SECTION 8.3, including copies thereof, and (ii) of the
----------
assertion of any claim or demand relating to the operation of the Offices and/or
the Deposit Liabilities or Overdraft Loans prior to the Closing, including, to
the extent known to BUYER, the identity of the person(s) or entity(ies)
asserting such claim or making such demand and the nature thereof, and including
copies of any correspondence or other writings relating thereto. All notices
required by this Section shall be given within fifteen (15) days of the receipt
by BUYER of any such process or pleadings or any oral or written notice of the
assertion of any such claims or demands. The failure to give timely notice
hereunder shall not relieve SELLER of its obligations pursuant to this
SECTION 8.3 unless SELLER is harmed by such failure to give timely notice.
-----------
SELLER shall have the right to take over BUYER's defense in any such actions,
suits or proceedings through counsel selected by SELLER, to compromise and/or
settle the same and to prosecute any available appeals or reviews of any adverse
judgment or ruling that may be entered therein; provided, however, that in
effecting the settlement of any such demand, claim or lawsuit, SELLER shall act
in good faith, shall consult with BUYER and shall enter into only such
settlement as BUYER shall consent to, such consent not to be unreasonably
withheld or delayed; provided further, that BUYER shall not be required to
consent to any settlement that obligates it to make any monetary or other
financial payments or which would have a material adverse effect on either of
the Offices. The covenants and obligations of SELLER hereunder shall survive
the Closing.
8.4 INDEMNIFICATION BY BUYER. From and after the Closing Date, BUYER
-------------------------
shall indemnify, hold harmless, and defend SELLER from and against: (a) any
claim, loss, damage, costs, or expenses, including reasonably attorneys' fees
and expenses of litigation, which SELLER may incur or suffer by reason of the
inaccuracy of any representation or warranty made by BUYER or the breach of any
of the agreements or covenants of BUYER contained herein or in accordance with
the provisions hereof; and (b) any loss, damage, cost, or expense, including
reasonable attorneys' fees and expenses of litigation, which is based upon or
pertains to the operation of the Offices, the Deposit Liabilities, the safe
deposit business conducted at the Office or the Assets after the Closing Date
(excluding any liability or obligation of any nature pertaining to the
transaction contemplated hereby). The obligations of BUYER under this
SECTION 8.4 shall be contingent upon SELLER giving BUYER written notice
------------
(i) of the receipt by SELLER of any process and/or pleadings in or relating to
any actions, suits or proceedings of the kinds described in this SECTION 8.4,
-----------
including copies thereof, and (ii) of the assertion of any claim or demand
relating to the Assets transferred to, and/or the Deposit Liabilities or
Overdraft Loans and the other obligations and liabilities assumed by, BUYER on
or after the Closing, including, to the extent known to SELLER, the identity of
the person(s) or entity(ies) asserting such claim or making such demand and the
nature thereof, and including copies of any correspondence or other writings
relating thereto. All notices required by the preceding sentence shall be given
within fifteen (15) days of the receipt by SELLER of any such process or
pleadings or any oral or written notice of the assertion of any such claims or
demands. The failure to give timely notice hereunder shall not relieve BUYER of
its obligations pursuant to this SECTION 8.4 unless BUYER is harmed by such
-----------
failure to give timely notice. BUYER shall have the right to take over SELLER's
defense in any such actions, suits or proceedings through counsel selected by
BUYER, to compromise and/or settle the same and to prosecute any available
appeals or review of any adverse judgment or ruling that may be entered therein;
provided, however, that in effecting the settlement of any such demand, claim or
lawsuit, BUYER shall act in good faith, shall consult with SELLER and shall
enter into only such settlement as SELLER shall consent to, such consent not to
be unreasonably withheld or delayed; provided further, that SELLER shall not be
obligated to consent to any settlement that obligates it to make any monetary or
other financial payments. The covenants and obligations of BUYER hereunder
shall survive the Closing.
8.5 TERMINATION OF REPRESENTATIONS AND WARRANTIES. The respective
---------------------------------------------
representations and warranties of SELLER and BUYER contained or referred to in
this Agreement or in any Certificate, schedule or other instrument delivered or
to be delivered pursuant to this Agreement shall terminate on the eighteenth
month anniversary of the Closing Date, except for:
(a) those representations and warranties contained in any
general warranty deeds delivered by SELLER to BUYER at the Closing; and
(b) those representations and warranties contained in any ▇▇▇▇
of sale relating to the Assets delivered by SELLER to BUYER at Closing.
Thereafter the representations and warranties shall be of no further force and
effect including as a basis for a claim for indemnification under SECTIONS 8.3
------------
or 8.4 hereof. The indemnification provisions provided by SECTIONS 8.3 and 8.4
--- ------------ ---
of this Agreement shall be a party's sole remedy after the Closing for any
breach of a representation or warranty listed in this SECTION 8.5.
-----------
8.6 SOLICITATION OF CUSTOMERS BY BUYER PRIOR TO CLOSING. At any time
----------------------------------------------------
prior to the Closing Date, BUYER will not, and will not permit any of its
affiliates, if any, to conduct any marketing, media or customer solicitation
campaign which is targeted to induce customers whose Deposit Account liabilities
are to be assumed by BUYER pursuant to this Agreement to discontinue their
account or business relationships with SELLER or its affiliates. Additionally,
at any time prior to the Closing, BUYER shall not, with respect to its offices
in the same market as the Offices, offer to pay on any transaction accounts or
any new or renewal savings accounts or certificates of deposits, rates of
interest greater than those offered or then being paid on similar accounts for
like term and amount by other offices of BUYER located in the referenced market.
Among other matters, it is the intent of this provision to prevent BUYER from
paying or offering to pay a rate of interest on any deposit accounts in excess
of that rate paid for like accounts at other offices of BUYER within the market
of the Offices prior to execution of this Agreement.
8.7 SOLICITATION OF CUSTOMERS BY SELLER AFTER THE CLOSING. From the
------------------------------------------------------
date of this Agreement and for forty-two (42) months following the Closing Date,
SELLER will not knowingly directly solicit deposit accounts from customers whose
Deposit Liabilities are assumed by BUYER pursuant to this Agreement, except as
may occur in connection with (i) advertising or solicitations directed to the
public generally, (ii) solicitations outside the designated market area of the
Offices or (iii) customers or borrowers with a banking or other relationship
with SELLER or its affiliates at offices other than the Offices, or who have or
maintain more than one place of business. The covenants and obligations of
SELLER hereunder shall survive the Closing.
8.8 FURTHER ASSURANCES. From and after the date hereof, each party
-------------------
hereto agrees to execute and deliver such instruments and to take such other
actions as the other party hereto may reasonably request in order to carry out
and implement this Agreement. Without limiting the foregoing, SELLER agrees to
execute and deliver such deeds, bills of sale, acknowledgments and other
instruments of conveyance and transfer as, in the reasonable judgment of BUYER,
shall be necessary and appropriate to vest in BUYER the legal and equitable
title to the Assets of SELLER being conveyed to BUYER hereunder. SELLER shall
cooperate with BUYER in executing any necessary and proper documents and notices
as may be appropriate in furtherance of the foregoing covenant and consistent
with the terms of this Agreement; provided, however, that nothing contained
herein shall relieve BUYER of its obligations as set forth herein. The
covenants and obligations of the parties hereunder shall survive the Closing.
8.9 OPERATION OF THE OFFICES. Except as otherwise expressly provided
-------------------------
in this Agreement, after the Closing Date, neither SELLER, its subsidiaries,
affiliates or parent corporation shall be obligated to provide any managerial,
financial, business or other services to the Offices, including, without
limitation, any personnel, employee benefit, data processing, accounting, risk
management or other services or assistance that may have been provided to the
Offices prior to the close of business on the Closing Date, and BUYER shall take
such action as may in its judgment appear to be necessary or advisable to
provide for the ongoing operation and management of, and the provision of
services and assistance to, the Offices after the Closing Date. Upon the
Closing, BUYER shall change the legal name of the Offices and, except for any
documents or materials in possession of the customers of the Offices (including,
but not limited to, deposit tickets and checks), shall not use and shall cause
the Offices to cease using any signs, stationery, advertising, documents or
printed or written materials that refer to the Offices by any name that includes
the words "Blackhawk State Bank" or the name of any affiliate of Blackhawk
Bancorp, Inc. Preceding the Closing, SELLER shall cooperate with any reasonable
requests of BUYER directed to obtaining specifications for the procurement of
new signs of BUYER's choosing for installation by BUYER of new signs immediately
following the close of business on the Closing Date; provided, however, that
BUYER's receipt of all sign specifications shall be obtained by BUYER in a
manner that does not significantly interfere with the normal business activities
and operations of the Offices and shall be at the sole and exclusive expense of
BUYER. As indicated in, and as limited by, SECTION 1.2(B), SELLER will
--------------
retain its signs located at the Offices and shall remove such signs immediately
following the close of business on the Closing Date. If removed by BUYER in
conjunction with its installation of new signs, BUYER shall obtain SELLER's
approval for such removal and shall insure that said signs are removed without
damage to same. It is understood by the parties hereto that, with the exception
of the signs, all mounting facilities for the signs shall be considered as Fixed
Assets for purposes of this Agreement. The covenants of the parties hereunder
shall survive the Closing.
8.10 INFORMATION AFTER CLOSING. For a period of seven (7) years
--------------------------
following the Closing, upon written request of SELLER to BUYER or BUYER to
SELLER, as the case may be, such requested party shall provide the requesting
party with reasonable access to, or copies of, information and records relating
to the Offices which are then in the possession or control of the requested
party reasonably necessary to permit the requesting party or any of its
subsidiaries or affiliates to comply with or contest any applicable legal, tax,
banking, accounting or regulatory policies or requirements, or any legal or
regulatory proceeding thereunder or requests related to customer relationships
at the Offices prior to the Closing. In the event of any such requests, the
requesting party shall reimburse the requested party for the reasonable costs of
the requested party related to such request. The covenants and obligations of
the parties hereunder shall survive the Closing.
8.11 INDIVIDUAL RETIREMENT ACCOUNTS. All Individual Retirement
-------------------------------
Accounts related to the Offices that shall not have become IRAs by the close of
business on the 30th day following the Closing shall not be assigned by SELLER
to BUYER or assumed by BUYER. SELLER may thereafter, at its option, elect to
retain such Individual Retirement Accounts, advise the account holders that it
has withdrawn its resignation as custodian or transfer the amount in such
Individual Retirement Accounts to the account holders.
8.12 COVENANT NOT TO COMPETE; COVENANT NOT TO SELL LOANS. From and
----------------------------------------------------
after the Closing and for a period of forty-two (42) months following the
Closing Date, SELLER shall not, and shall not enter into any agreement to,
acquire, lease, purchase, own, operate or use any building, office or other
facility or premises located within a fifteen (15) mile radius of any Office for
the purpose of operating a full service branch or making loans, accepting
deposits or cashing checks; provided, however, that the foregoing prohibition
shall not apply to (i) performance by SELLER or any current or future affiliate
or successor of SELLER of any of the foregoing activities utilizing ATMs, CBCTs,
cash dispensing machines, courier services, terminals or similar devices, or
through continued operation of existing offices, or (ii) performance by SELLER
or any current or future affiliated or successor of SELLER of any of the
foregoing activities as a result of a merger or other combination with, or
acquisition of or by, SELLER, its parent corporation, or any affiliate or
successor of SELLER of the foregoing activities as a result of a merger or other
combination with, or acquisition of or by, SELLER, its parent corporation, or
any affiliate thereof with any third party following the Closing Date. SELLER
further agrees that for a period of three (3) years from the Closing Date, it
will not sell any of the loans attributable to the Offices to another financial
institution. The covenants and obligations of SELLER hereunder shall survive
the Closing.
8.13 NON-SOLICITATION OF EMPLOYEES. BUYER agrees that for a period of
------------------------------
two (2) years from the date of this Agreement, or for a period of two (2) years
from such date as this Agreement may be terminated pursuant to ARTICLE IX
----------
hereof, neither BUYER nor any of its subsidiaries or affiliates will directly or
indirectly solicit for employment or employ any persons who are employees of
Blackhawk Bancorp, Inc., SELLER or their subsidiaries or affiliates on the date
hereof and with whom BUYER has had contact or who became known to BUYER solely
in conjunction with any phase of the transactions contemplated hereby, whether
prior to execution of this Agreement or subsequent thereto. As used solely in
this SECTION 8.13, the term "solicit" shall not be deemed to include general
------------
advertisements or general solicitations that are not targeted or directed
specifically to individuals who are employees of SELLER or its subsidiaries or
affiliates. Nothing in this SECTION 8.13 shall prohibit BUYER or BUYER's
------------
affiliates or subsidiaries from hiring a person covered by this SECTION 8.13 who
------------
contacts BUYER on their own initiative (and not in response to solicitation by
BUYER in violation of this Section) or a person covered by this SECTION 8.13 who
------------
is no longer in the employ of Blackhawk Bancorp, Inc., SELLER or its
subsidiaries or affiliates at the time of such solicitation.
The obligations and covenants of BUYER hereunder shall survive the
Closing or any earlier termination of this Agreement pursuant to ARTICLE IX
----------
hereof.
ARTICLE IX
----------
TERMINATION
-----------
9.1 TERMINATION WITHOUT LIABILITY. This Agreement may be terminated
------------------------------
and the transactions contemplated hereby may be abandoned by mutual consent of
the parties authorized by a vote of a majority of the Board of Directors (or by
the vote of the Executive Committee of such Board, if so empowered) of each of
SELLER and BUYER, or by BUYER or SELLER as provided in SECTION 7.4 hereof, or by
-----------
BUYER as provided in SECTION 2.1(B) or SECTION 2.1(C)
----------- --------------
hereof.
9.2 TERMINATION BY SELLER. This Agreement may be terminated and the
----------------------
transactions contemplated hereby abandoned by a vote of a majority of the Board
of Directors (or by the vote of the Executive Committee of such Board, if so
empowered) of SELLER:
(a) in the event of a material breach by BUYER of this Agreement
and BUYER does not cure such material breach within thirty (30) days after
written notice of such material breach is given to BUYER by SELLER; or
(b) in the event any of the conditions precedent specified in
SECTION 5.1 of this Agreement has not been satisfied as of the date required by
-----------
this Agreement and, if not so satisfied, has not been waived by SELLER; or
(c) in the event any regulatory approval for the consummation of
the Acquisition is denied by the applicable regulatory authority or in the event
that at any time prior to the Closing Date it shall become reasonably certain to
SELLER, based upon the advice of counsel, that a regulatory approval required
for consummation of the Acquisition will not be obtained by the Termination Date
(as defined below); or
(d) on or after a date which is one hundred eighty (180)
calendar days following the date of this Agreement (the "TERMINATION DATE"), if
the Closing has not then occurred unless the failure to consummate the
Acquisition by such date is due to a breach of this Agreement by SELLER; or
(e) in the event that BUYER enters into an agreement or
agreements, or intends to enter into an agreement or agreements, providing for
the merger, acquisition or sale of all or substantially all of assets of BUYER
or its parent company such as would require prior regulatory approval under the
Change in Bank Control Act, as amended, or the Bank Holding Company Act of 1956,
as amended, or similar law or regulation which, in the reasonable opinion of
SELLER, will prevent or materially delay the consummation of the transactions
contemplated by this Agreement; or
(f) in the event that there is a material adverse change in the
financial condition or results of operations of BUYER which, in the reasonable
opinion of SELLER, will prevent or materially delay the consummation of the
transactions contemplated by this Agreement; or
(g) in the event that there is pending or threatened litigation
or claims with respect to the transactions contemplated by this Agreement which,
in the reasonable opinion of SELLER, based upon the advice of counsel, may
present a bona fide claim to restrain, enjoin or prohibit consummation of the
transactions contemplated by this Agreement or might result in rescission in
connection with such transactions.
9.3 TERMINATION BY BUYER. This Agreement may be terminated and the
---------------------
transactions contemplated hereby abandoned by a vote of a majority of the Board
of Directors (or by the vote of the Executive Committee of such Board, if so
empowered) of BUYER:
(a) in the event of a material breach by SELLER of this
Agreement and SELLER does not cure such material breach within thirty (30) days
after written notice of such material breach is given to SELLER by BUYER; or
(b) in the event any of the conditions precedent specified in
SECTION 5.2 of this Agreement has not been satisfied as of the date required by
-----------
this Agreement and, if not so satisfied, has not been waived by BUYER; or
(c) in the event any regulatory approval required for
consummation of the Acquisition is denied by the applicable regulatory authority
or in the event that at any time prior to the Closing Date it shall become
reasonably certain to BUYER, based upon the advice of counsel, that a regulatory
approval required for consummation of the Acquisition will not be obtained; or
(d) on or after the Termination Date, if the Closing has not
then occurred unless the failure to consummate the Acquisition by such date is
due to a breach of this Agreement by BUYER; or
(e) in the event that there is a material adverse change in the
financial condition or results of operations of the Offices which, in the
reasonable opinion of BUYER, will prevent or materially delay the consummation
of the transactions contemplated by this Agreement; or
(f) in the event that there is pending or threatened litigation
or claims with respect to the transactions contemplated by this Agreement which,
in the reasonable opinion of BUYER, based upon the advice of counsel, may
present a bona fide claim to restrain, enjoin or prohibit consummation of the
transactions contemplated by this Agreement or might result in rescission in
connection with such transactions.
9.4 EFFECT OF TERMINATION. The termination of this Agreement
----------------------
pursuant to SECTION 9.2 OR 9.3 shall not release any party hereto from any
------------------
liability or obligation to the other party hereto arising from (i) a willful
breach of any provision of this Agreement occurring prior to the termination
hereof or (ii) the failure of timely satisfaction of conditions precedent to the
obligations of a party to the extent that such failure of timely satisfaction is
attributable to the actions or inactions of such party.
ARTICLE X
---------
MISCELLANEOUS PROVISIONS
------------------------
10.1 EXPENSES. Except as and to the extent specifically allocated
--------
otherwise herein, each of the parties hereto shall bear its own expenses,
whether or not the transactions contemplated hereby are consummated.
10.2 CERTIFICATES. All statements contained in any certificate
------------
("CERTIFICATE") delivered by or on behalf of SELLER or BUYER pursuant to this
Agreement or in connection with the transactions contemplated hereby shall be
deemed to be representations and warranties of the party delivering the
Certificate hereunder. Each such Certificate shall be executed on behalf of the
party delivering the Certificate by duly authorized officers of such party.
10.3 WAIVERS. Each party hereto, by written instrument signed by duly
--------
authorized officers of such party, may extend the time for the performance of
any of the obligations or other acts of the other party hereto and may waive,
but only as affects the party signing such instrument:
(a) any inaccuracies in the representations or warranties of the
other party contained or referred to in this Agreement or in any document
delivered pursuant hereto;
(b) compliance with any of the covenants or agreements of the
other party contained in this Agreement;
(c) the performance (including performance to the satisfaction
of a party or its counsel) by the other party of such of its obligations set out
herein; and
(d) satisfaction of any condition to the obligations of the
waiving party pursuant to this Agreement.
10.4 NOTICES. All notices, requests, demands and other
--------
communications to be given to any party hereunder shall be in writing and shall
be deemed to have been duly given when either: (i) personally delivered; (ii)
five (5) days after deposited in the United States mail, certified or
registered, return receipt requested, postage prepaid; (iii) sent by way of a
nationally recognized overnight courier service, including without limitation
Federal Express; or (iv) upon actual receipt by the specific persons identified
below upon transmittal by facsimile addressed to the parties at the below
addresses (or at such other addresses as shall be given in like manner by any
party to the others):
If to SELLER:
Blackhawk State Bank
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
email: ▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
With a copy to:
▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: 414-271-3552
email: ▇▇▇@▇▇▇▇▇▇▇.▇▇▇
If to BUYER:
The First National Bank and Trust Company of Rochelle
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
email: ▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
With a copy to:
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
email: ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
or such other person or address as any such party may designate by written
notice to the other party.
10.5 PARTIES IN INTEREST; ASSIGNMENT; AMENDMENT. The rights and
-------------------------------------------
obligations of each individual banking association which is a party hereto shall
be exclusively and individually binding upon, and shall inure exclusively and
individually to the benefit of, that banking association and its respective
permitted successors and assigns. This Agreement is binding upon and is for the
benefit of the parties hereto and their respective successors, legal
representatives and assigns, and no person who is not a party hereto (or a
permitted successor or assignee of such party) shall have any rights or benefits
under this Agreement, either as a third party beneficiary or otherwise. This
Agreement cannot be assigned by BUYER or SELLER by action of law or otherwise,
and this Agreement cannot be amended or modified, except by a written agreement
executed by the parties hereto or their respective permitted successors and
assigns.
10.6 HEADINGS. The headings and table of contents used in this
---------
Agreement are inserted for convenience of reference only and are not intended to
be a part of or to affect the meaning or interpretation of this Agreement.
10.7 TERMINOLOGY. The specific terms of art that are defined in
------------
various provisions of this Agreement shall apply throughout this Agreement
(including, without limitation, each Schedule hereto), unless expressly
indicated otherwise. In addition, the following terms and phrases shall have
the meanings set forth for purposes of this Agreement (including each Schedule
hereto):
(a) The term "AFFILIATE" shall mean, with respect to any person,
any other person directly or indirectly controlling, controlled by or under
common control with such person.
(b) The term "BUSINESS DAY" shall mean any day other than a
Saturday, Sunday or a day on which either SELLER or BUYER is closed in
accordance with applicable law or regulation. Any action, notice or right which
is to be taken or given or which is to be exercised or lapse on or by a given
date which is not a business day may be taken, given or exercised and shall not
lapse until the next business day following.
(c) The terms "INCLUDE," "INCLUDES" and "INCLUDING" are deemed
to be followed by "without limitation" whether or not they are in fact followed
by such words or words of like import.
(d) The term "PERMITTED EXCEPTIONS" shall mean, with respect to
the Owned Real Estate, (i) the standard survey exceptions appearing as a
"Schedule B" item in a standard ALTA owners title insurance policy; (ii)
statutory liens for current taxes or assessments not yet due, or if due not yet
delinquent, or the validity of which is being contested in good faith by
appropriate proceedings; (iii) such other liens, imperfections in title,
charges, easements, restrictions and encumbrances (but in all cases of Owned
Real Estate excluding those which secure borrowed money) which, individually and
in the aggregate, do not materially detract from the value of, or materially
interfere with the present use of, any property subject thereto or affected
thereby; and (iv) such other exceptions as are not objected to by BUYER or
accepted by BUYER pursuant to SECTION 2.1(B) of this Agreement.
--------------
(e) The term "PERSON" shall mean any individual, corporation
partnership, limited liability company, association, trust or other entity,
whether business, personal or otherwise.
(f) The term "SUBSIDIARY" shall mean a corporation, partnership,
limited liability company, joint venture or other business organization more
than 50% of the voting securities or interests in which are beneficially owned
or controlled by the indicated parent of such entity.
(g) Unless expressly indicated otherwise in a particular
context, the terms "HEREIN," "HEREUNDER," "HERETO," "HEREOF" and similar
references refer to this Agreement in its entirety and not to specific articles,
sections, schedules or subsections of this Agreement. Unless expressly
indicated otherwise in a particular context, references in this Agreement to
enumerated articles, sections and subsections refer to designated portions of
this Agreement (but do not refer to portions of any Schedule unless such
Schedule is specifically referenced) and do not refer to any other document.
(h) The parties acknowledge that each party and its counsel have
reviewed and revised this Agreement and that the normal rule of construction to
the effect that any ambiguities are to be resolved against the drafting party
shall not be employed in the interpretation, construction and enforcement of
this Agreement or any amendment, schedule or exhibit hereto.
(i) The following words, phrases and abbreviations shall have
the meanings indicated in the Sections listed below:
DEFINED TERM SECTION DEFINED TERM SECTION
------------ ------- ------------ -------
Accounts 7.2(b) Leave Employees 4.2(d)
Acquisition 1.1 Office 1.1
Acquisition Consideration 1.4(a)(iii) Offices 1.1
Affiliate 10.7(a) Overdraft Loans 1.2(h)
Asbestos Assessment 7.4 Overdrafts 1.2(h)
Assets 1.1 Owned Real Estate 1.2(a)
Assumed Contracts 1.2(g) Paper Items 7.2(g)
ATM 1.2(b) Permitted Exceptions 10.7(d)
Business Day 10.7(b) Person 10.7(e)
CERCLA 3.1(l) Phase I Reports 7.4
Certificate 10.2 Phase II Election Notice 7.4
Period
Closing 6.1 Phase II Report 7.4
Closing Date 6.1 Plan Schedule K
COBRA 3.1(t) Purchase Agreement Schedule I
Core Deposits 1.4(a)(iii) Subsidiary 10.7(f)
Deposit Accounts 1.3(b) Terminated Employee 4.1(a)
Deposit Liabilities 1.3(b) Termination Date 9.2(d)
Fixed Assets 1.2(b) Title Commitments 2.1(b)
FRB 7.2(g) Transferred Employees 4.1(a)
IRA's 1.3(b)
10.8 SEVERABILITY. If any provision of this Agreement, or the
------------
application thereof to any person or circumstance, shall be construed for any
reason and to any extent to be invalid or unenforceable, but the extent of the
invalidity or unenforceability does not destroy the basis of the bargain between
the parties as contained herein, the remainder of this Agreement, and the
application of such provision to other persons or circumstances, shall not be
affected thereby but shall be enforced to the greatest extent permitted by law.
10.9 FLEXIBLE STRUCTURE. References in this Agreement to federal
-------------------
or state laws or regulations, jurisdictions or chartering or regulatory
authorities shall be interpreted broadly to allow maximum flexibility in
consummating the transactions contemplated hereby in light of changing business,
economic and regulatory conditions. Without limiting the foregoing, in the
event SELLER and BUYER agree in writing to alter the legal structure of the
Acquisition contemplated by this Agreement, references in this Agreement to such
laws, regulations, jurisdictions and authorities shall be deemed to be altered
to reflect the laws, regulations, jurisdictions and authorities that are
applicable in light of such change.
10.10 PRESS RELEASES. SELLER or BUYER, as the case may be, shall
---------------
approve, in writing prior to issuance, the form and substance of any press
release or other public disclosure relating to any matters relating to this
Agreement issued by the other. Nothing contained herein shall restrict or
prohibit BUYER or SELLER from issuance of press releases or public disclosures
which, based on the advice of counsel, are required by applicable law or
regulation and limited to information necessary for compliance with same.
10.11 ENTIRE AGREEMENT. This Agreement supersedes any and all
-----------------
oral or written agreements and understandings heretofore made relating to the
subject matter hereof and contains the entire agreement of the parties relating
to the subject matter hereof. All schedules, exhibits and appendices to this
Agreement are incorporated into this Agreement by reference and made a part
hereof.
10.12 GOVERNING LAW. This Agreement shall be governed by, and
--------------
construed in accordance with, the laws of the State of Illinois and the laws of
the United States, as well as regulations issued by relevant agencies thereof.
10.13 COUNTERPARTS. This Agreement may be executed in several
-------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
10.14 TAX MATTERS. BUYER and SELLER agree that they will file
------------
applicable tax returns and other related schedules and documents related to
their respective interests based on the allocations in this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective officers thereunto duly authorized, all as
of the date first above written.
BLACKHAWK STATE BANK
By: /s/R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ III
--------------------------------
Name: R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ III
------------------------------
Its: President
-------------------------------
THE FIRST NATIONAL BANK AND TRUST
COMPANY OF ▇▇▇▇▇▇▇▇
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Its: CEO
-------------------------------
SCHEDULES
TO
OFFICE PURCHASE AND ASSUMPTION AGREEMENT
Schedule A Description of Owned Real Estate
Schedule B Furniture, Fixtures and Equipment
Schedule C Prepaid Expenses
Schedule D Assumed Contracts
Schedule E List of Leases, Safekeeping Items and Agreements
Schedule F Deposit Accounts
Schedule G Form of Certification of BUYER
Schedule H Form of Certification of SELLER
Schedule I Form of Assignment of Agreements
Schedule J Form of Instrument of Assumption
Schedule K Form of Assignment, Transfer and Appointment of Successor
Custodian for IRAs
Schedule L ▇▇▇▇ of Sale
Schedule M Form of Preliminary Closing Statement
Schedule N Form of Final Settlement Statement
Schedule O Listing of Employees of Offices
Schedule P Other Liabilities
Schedule Q Excluded Deposits
Schedule R Overdraft Loans
