EXHIBIT 10.2
OFFICE PURCHASE AND ASSUMPTION AGREEMENT
BETWEEN
CENTRAL BANK
AND
IBERIABANK
DATED AS OF JUNE 4, 1998
TABLE OF CONTENTS
PAGE NO.
1. PURCHASE AND ASSUMPTION. . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.01 Purchase and Sale of Assets. . . . . . . . . . . . . . . . . . . . . 1
1.02 Transfer of Assets . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.03 Acceptance and Assumption. . . . . . . . . . . . . . . . . . . . . . 4
1.04 Payment of Funds . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2. CONDUCT OF THE PARTIES PRIOR TO CLOSING. . . . . . . . . . . . . . . . . . . 11
2.01 Covenants of SELLER. . . . . . . . . . . . . . . . . . . . . . . . . 11
2.02 Covenants of BUYER . . . . . . . . . . . . . . . . . . . . . . . . . 17
2.03 Covenants of All Parties . . . . . . . . . . . . . . . . . . . . . . 19
3. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . . . . . 19
3.01 Representations and Warranties of SELLER . . . . . . . . . . . . . . 19
3.02 Representations and Warranties of BUYER. . . . . . . . . . . . . . . 26
4. ACTIONS RESPECTING EMPLOYEES AND PENSIONS AND EMPLOYEE BENEFIT PLANS . . . . 27
4.01 Employment of Employees. . . . . . . . . . . . . . . . . . . . . . . 27
4.02 Terms and Conditions of Employment . . . . . . . . . . . . . . . . . 28
4.03 Compliance with Law. . . . . . . . . . . . . . . . . . . . . . . . . 30
4.04 Actions to be Taken by SELLER. . . . . . . . . . . . . . . . . . . . 30
5. CONDITIONS PRECEDENT TO CLOSING. . . . . . . . . . . . . . . . . . . . . . . 32
5.01 Conditions to SELLER's Obligations . . . . . . . . . . . . . . . . . 32
5.02 Conditions to BUYER's Obligations. . . . . . . . . . . . . . . . . . 34
5.03 NonSatisfactions of Conditions Precedent . . . . . . . . . . . . . . 36
5.04 Waivers of Conditions Precedent. . . . . . . . . . . . . . . . . . . 36
6. CLOSING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
6.01 Closing and Closing Date . . . . . . . . . . . . . . . . . . . . . . 37
6.02 SELLER's Actions at Closing. . . . . . . . . . . . . . . . . . . . . 37
6.03 BUYER's Actions at the Closing . . . . . . . . . . . . . . . . . . . 39
6.04 Methods of Payment . . . . . . . . . . . . . . . . . . . . . . . . . 40
6.05 Availability of Closing Documents. . . . . . . . . . . . . . . . . . 41
6.06 Effectiveness of Closing . . . . . . . . . . . . . . . . . . . . . . 41
7. CERTAIN TRANSITIONAL MATTERS . . . . . . . . . . . . . . . . . . . . . . . . 42
7.01 Transitional Action by BUYER . . . . . . . . . . . . . . . . . . . . 42
7.02 Transitional Actions by SELLER . . . . . . . . . . . . . . . . . . . 45
7.03 Overdrafts and Transitional Action . . . . . . . . . . . . . . . . . 51
7.04 ATMs and Debit Cards . . . . . . . . . . . . . . . . . . . . . . . . 51
7.05 Environmental Matters. . . . . . . . . . . . . . . . . . . . . . . . 52
7.06 Effect of Transitional Action. . . . . . . . . . . . . . . . . . . . 56
7.07 Lease of Operations Center . . . . . . . . . . . . . . . . . . . . . 56
8. GENERAL COVENANTS AND INDEMNIFICATION. . . . . . . . . . . . . . . . . . . . 56
8.01 Confidentiality Obligations of BUYER . . . . . . . . . . . . . . . . 56
8.02 Confidentiality Obligations of SELLER. . . . . . . . . . . . . . . . 57
8.03 Indemnification by SELLER. . . . . . . . . . . . . . . . . . . . . . 58
8.04 Indemnification by BUYER . . . . . . . . . . . . . . . . . . . . . . 58
8.05 Claims for Indemnity . . . . . . . . . . . . . . . . . . . . . . . . 59
8.06 Solicitation of Customers by BUYER Prior to Closi. . . . . . . . . . 60
8.07 Solicitation of Customers by SELLER After the Clo. . . . . . . . . . 61
8.08 Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . 61
8.09 Operation of the Offices . . . . . . . . . . . . . . . . . . . . . . 62
8.10 Information After Closing. . . . . . . . . . . . . . . . . . . . . . 63
8.11 Individual Retirement Accounts . . . . . . . . . . . . . . . . . . . 63
8.12 Nonsolicitation of Employees . . . . . . . . . . . . . . . . . . . . 64
9. TERMINATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
9.01 Termination by Mutual Agreement. . . . . . . . . . . . . . . . . . . 65
9.02 Termination by SELLER. . . . . . . . . . . . . . . . . . . . . . . . 65
9.03 Termination by BUYER . . . . . . . . . . . . . . . . . . . . . . . . 66
9.04 Termination of Merger Agreement. . . . . . . . . . . . . . . . . . . 67
9.05 Effect of Termination. . . . . . . . . . . . . . . . . . . . . . . . 67
10. MISCELLANEOUS PROVISIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . 67
10.01 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
10.02 Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
10.03 Termination of Representations and Warranties. . . . . . . . . . . 68
10.04 Waivers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
10.05 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
10.06 Parties in Interest: Assignment; Amendment . . . . . . . . . . . . 70
10.07 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
10.08 Terminology. . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
10.09 Flexible Structure . . . . . . . . . . . . . . . . . . . . . . . . 72
10.10 Press Releases . . . . . . . . . . . . . . . . . . . . . . . . . . 73
10.11 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . 73
10.12 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . 73
10.13 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
10.14 Tax Matters. . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
10.15 Good Faith Deposit . . . . . . . . . . . . . . . . . . . . . . . . 74
10.16 Specific Performance . . . . . . . . . . . . . . . . . . . . . . . 74
10.17 Consent of First Commerce Corporation. . . . . . . . . . . . . . . 74
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
SCHEDULES:
Schedule A - Description of Owned Real Estate
Schedule B - Description of Leased Real Estate and Third Party Lease
Schedule C - Furniture, Fixtures and Equipment
Schedule D - Assumed Contracts
Schedule E - List of Leases, Safekeeping Items and Agreements
Schedule F - Form of Assignment and Assumption of Lease and Estoppel
Certificate
Schedule G - Deposit Accounts
Schedule H - Office Loans
Schedule I - Form of Certification of BUYER
Schedule J - Form of Opinion of Counsel for BUYER
Schedule K - Form of Certification of SELLER
Schedule L - Form of Opinion of Counsel for SELLER
Schedule M - Form of Assignment of Office Loans, Notes,
Agreements and Pledge
Schedule N - Form of Instrument of Assumption
Schedule O - Form of Assignment, Transfer and Appointment of
Successor Custodian for IRAs
Schedule P - Form of Preliminary Closing Statement
Schedule Q - Form of Final Settlement Statement
Schedule R - Listing of Employees of Offices
Schedule S - Put Provisions for Office Loans
OFFICE PURCHASE AND ASSUMPTION AGREEMENT
This Office Purchase and Assumption Agreement ("Agreement") dated June 4,
1998, between IberiaBank ("BUYER") and Central Bank ("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, BUYER and SELLER hereby agree as follows:
1. PURCHASE AND ASSUMPTION.
1.01 PURCHASE AND SALE OF ASSETS. At the Closing, as defined in Section
6.01 (the "Closing"), BUYER shall purchase and acquire, and SELLER
shall sell and assign, the real estate and other assets described
in Section 1.02 (collectively, the "Assets") all of which are used
in and/or relate to business conducted by SELLER at its branch
offices known as and located at the sites described in SCHEDULES A
AND B, pursuant 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 is
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. Except as otherwise
expressly provided herein, the Assets are sold without any
representation or warranty whatsoever by SELLER.
-1-
1.02 TRANSFER OF ASSETS. Subject to the terms and conditions of this
Agreement, SELLER shall assign, transfer, convey and deliver to
BUYER, on and as of the Closing on the Closing Date, as defined in
Section 6.01 hereof, the Assets, which shall include the following:
(a) OWNED REAL ESTATE. All of SELLER's right, title and interest
in and to the real estate described in SCHEDULE A on which an
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 shall specifically identify the
Owned Real Estate by street address, legal description and/or
tax parcel number; and shall not be deemed to include any
adjacent properties unless clearly set forth in Schedule A at
the time of execution of this Agreement;
(b) LEASED REAL ESTATE. All of SELLER's right, title and interest
in and to the leasehold estate in the real estate described in
attached SCHEDULE B and created by certain lease agreement(s)
(individually and collectively the "Third Party Lease")
relating to the referenced Offices (the "Leased Real Estate"),
specifically identified by street address, legal description
and/or tax parcel numbers in SCHEDULE B;
(c) FURNITURE AND EQUIPMENT. All of SELLER's right, title and
interest in and to the furniture, fixtures and equipment
located at the Offices as of the Closing Date (the "Fixed
Assets"), a preliminary listing of which is contained in
SCHEDULE C, specifically excluding, among other items, signs
and stands, printed supplies and documents and other materials
bearing any SELLER or affiliate name and/or logo, proprietary
software, and any artwork. A final listing of specific items
included in the Fixed Assets will be provided to BUYER prior
to the Closing.
-2-
(d) SAFE DEPOSIT BUSINESS. All of SELLER's right, title and
interest in and to the safe deposit business (subject to the
allocation of safe deposit rental payments as provided in
Section 1.03(c)(ii) hereof) conducted at the Offices as of the
close of business on the Closing Date;
(e) CASH ON HAND. All cash on hand at the Offices as of the close
of business on the Closing Date including vault cash, ▇▇▇▇▇
cash, ATM cash and tellers' cash;
(f) PREPAID EXPENSES. All prepaid expenses recorded or otherwise
reflected on the books of SELLER 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;
(g) OFFICE LOANS. All of SELLER's right, title and interest in
and to all those loans which, as of the close of business on
the Closing Date, are (i) secured in whole or in part by
Deposit Accounts (as hereinafter defined) attributable or
assigned to an Office (the "Deposit Account Loans"), (ii)
commercial or other loans attributable to an Office (if any,
the "Other Loans") or (iii) automatically created as the
result of an overdraft of a Deposit Account pursuant to a
pre-approved overdraft protection program offered by SELLER
(except for those overdraft protection loans which are charged
to credit card accounts not transferred to the BUYER
hereunder, the "Overdraft Loans"), BUYER shall not assume any
Office Loans which are more than sixty (60) days past due for
payment of principal or interest. The Deposit Account Loans,
Other Loans, and Overdraft Loans sold and assigned to BUYER
hereunder will be identified as of the Closing Date and listed
in SCHEDULE H (hereinafter referred
-3-
to individually and collectively as the "Office Loans").
Transfer of the Office Loans will be subject to the terms and
conditions set forth in SCHEDULE S. Except as otherwise
expressly provided herein, the transfer of the Office Loans
will be made without recourse, without any representation,
warranty, or guarantee of any kind, express or implied, and
without any allowance or reserve for loan losses;
(h) RECORDS OF THE OFFICES. All records and documents related 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 (i) the Deposit Accounts
and (ii) the promissory notes and documents and instruments
evidencing the Liens ( as defined in Schedule S) relating to
the Office Loans; and
(i) CONTRACTS OR AGREEMENTS. All of SELLER's right, title and
interest in and to the maintenance and service agreements
related to the Offices, as listed on SCHEDULE D (the "Assumed
Contracts"), provided the same are assignable without cost to
SELLER.
1.03 ACCEPTANCE AND ASSUMPTION. Subject to the terms and conditions of
this Agreement, on and as of the Closing on the Closing Date, BUYER
shall:
(a) ASSETS. Receive and accept all of the Assets assigned,
transferred, conveyed and delivered to BUYER by SELLER
pursuant to this Agreement, including those identified in
Section 1.02 above.
(b) DEPOSIT LIABILITIES. Assume and thereafter discharge, pay in
full and perform all of SELLER's obligations and duties
relating to the "Deposit Liabilities" (as hereinafter
-4-
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 which, as
reflected on the books of SELLER as of the close of business on
the Closing Date, are attributable to the Offices, other than (i)
▇▇▇▇▇ accounts and (ii) deposit accounts securing any loan of
SELLER which is not an Office Loan, for which BUYER assumes no
liability. The deposit accounts referred to in the
immediately preceding sentence (herein the "Deposit Accounts")
include, without limitation, statement savings, checking,
Money Market, and NOW accounts, Individual Retirement Accounts
("IRA's") and certificates of deposit 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. The
"obligations, duties and liabilities" referred to in the
immediately preceding sentence 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, and to be filed or reported after the Closing Date
including, without limitation, IRS Form 1099 reports relating
to the Deposit Accounts relating to interest accrued 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
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:
-5-
(i) all leases listed on SCHEDULES B AND E (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 6.04
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 the
safe deposit boxes; and
(iii) all safekeeping items and agreements listed on SCHEDULE
E and delivered to BUYER by SELLER pursuant to 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, as
the same may be or become due, the Assumed Contracts, the
Third Party Lease for the Leased Real Estate 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
-6-
Date. 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
relative to employees of the Offices, if any, as set forth
hereinafter.
1.04 PAYMENT OF FUNDS. Subject to the terms and conditions hereof, at
the Closing:
(a) CONSIDERATION. In consideration of BUYER's assumption of the
Deposit Liabilities and its other agreements herein, SELLER
shall make available and transfer to BUYER, in the manner
specified in Section 6.04 hereof, 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 deferred
expenses identified in Section 1.03(d) hereof 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;
and
(ii) the net aggregate book value of the Offices, valued as
of the last day of the month ending immediately prior to
the month in which the Closing Date occurs.
-7-
(iii) the net aggregate book value of the furniture, fixtures
and equipment being transferred to BUYER, valued as of
the last day of the month ending immediately prior to
the month in which the Closing Date occurs; and
(iv) Six and 45/100 percent (6.45%) 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). The
amount calculated as set forth herein as of the close of
business on the Closing Date is hereinafter called the
"Acquisition Consideration;" and
(v) the amount of prepaid expenses described in Section
1.02(f) of this Agreement, prorated as of the close of
business on the day immediately preceding the Closing
Date; and
(vi) the book value of the Office Loans together with accrued
and unpaid interest thereon computed as of the close of
business on the Closing Date.
If the sum of items (i) through (vi) above exceeds the
aggregate amount to be transferred by SELLER pursuant to the
first paragraph of this Section 1.04(a), the full amount of
such excess shall constitute an amount due from BUYER to
SELLER, and shall be paid to SELLER at the Closing in the
manner specified in Section 6.04 hereof. The parties shall
execute a Preliminary Settlement Statement at the Closing and
a Final Settlement Statement post-closing in accordance with
section 6.04 herein, in substantially the same form as set
forth in SCHEDULES P AND Q.
-8-
(b) REIMBURSEMENT AND PRORATION OF CERTAIN EXPENSES. All other
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 1.02(f) hereof and
deferred expenses described in Section 1.03(d) hereof,
including without limitation, real estate 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 shall be prorated between
SELLER and BUYER as of the close of business on the day
immediately preceding the Closing Date, PROVIDED, HOWEVER,
that all real estate taxes and assessments, and to the extent
payable by SELLER and/or Buyer, shall be prorated at the
Closing on the basis of the most recently certified real
estate taxes and assessments, and all utility payments and
lease payments shall be prorated on the basis of the best
information available at Closing. Any security deposits
relating to the Leased Real Estate shall be credited to the
SELLER at Closing. With respect to premiums paid to the FDIC
for 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 deposit 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 6.04 hereof.
(c) EXPENSES RELATING TO REAL PROPERTY AND OTHER ASSETS. The
costs, fees and expenses relating to the premiums, including
any endorsements for extended coverage, for all
-9-
title insurance policies (including the costs of all title
commitments, guaranties and examinations), recording costs and
other similar costs, fees and expenses, if any, relating to
the sale and transfer of the Owned Real Estate or the transfer
of SELLER's interest in the Leased Real Estate including, but
not limited to, any conveyance fees, taxes, recording costs
and other similar fees and expenses relating to the sale and
transfer of any other Assets, shall be allocated to, and shall
be borne, solely and exclusively, by BUYER. To the extent
BUYER requests SELLER or its attorneys to seek certain title
endorsements or removal of exceptions noted on title
commitments, BUYER shall reimburse SELLER at Closing for its
attorney fees related thereto. In no event shall SELLER be
required to undertake any negotiations with title insurance
companies for any matters that relate to the scope of title
insurance coverage or the Permitted Exceptions. BUYER shall
reimburse SELLER at the Closing for all of the costs, fees and
expenses allocated to BUYER pursuant to this Section 1.04(c)
but paid by SELLER in the manner specified in Section 6.04
herein. If this transaction does not close by virtue of a
breach of this Agreement, the breaching party shall be
responsible for and shall, as appropriate, reimburse the other
party for its expenses as set forth herein.
(d) (1) SELLER and BUYER agree to allocate the amounts paid
pursuant to Section 1.04 hereof (the "Purchase Price")
in accordance with Section 1060 of the Internal Revenue
Code of 1986, as amended (the "Code"). Within 30 days
after the Closing Date, BUYER shall provide to SELLER
BUYER's proposed allocation of the Purchase Price as
finally determined and paid by BUYER hereunder. Within
60 days after the receipt of such allocation, SELLER
shall propose to BUYER any changes to such allocation or
otherwise shall be deemed to have agreed with such
allocation.
-10-
(2) SELLER and BUYER shall reduce such allocation to
writing, including jointly and properly executing
completed Internal Revenue Service Form 8594, and any
other forms or statements required by the Code, Treasury
Regulations or the Internal Revenue Service, together
with any and all attachments required to be filed
therewith. SELLER and BUYER shall file timely any such
forms and statements with the Internal Revenue Service.
(3) To the extent consistent with applicable law, SELLER and
BUYER shall not file any tax return or other documents
or otherwise take any position with respect to taxes
which is consistent with such allocation of the final
purchase price, provided, however, that neither SELLER
nor BUYER shall be obligated to litigate any challenge
to such allocation of the final Purchase Price by a
governmental authority.
(4) SELLER and BUYER shall promptly inform one another of
any challenge by any governmental authority to any
allocation made pursuant to this subsection and agree to
consult with and keep one another informed with respect
to the state of, and any discussion, proposal or
submission with respect to, such challenge.
2. CONDUCT OF THE PARTIES PRIOR TO CLOSING.
2.01 COVENANTS OF SELLER. SELLER hereby covenants to BUYER that, from 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
the Offices in a manner substantially equivalent to that
manner and system of operation employed immediately prior to
the date of this Agreement; provided, however, that it is
contemplated
-11-
by the parties that, prior to Closing, SELLER will terminate
certain programs which are currently in effect which allow
depositors to access Deposit Accounts through electronic
means.
Notwithstanding the foregoing and except as may be required to
obtain the required authorizations referred to in Section 2.03
of this Agreement, 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 any Office to transfer to SELLER's other
operations any deposits other than deposits securing
loans made by SELLER which are not Office Loans and
deposits owned in whole or in part by employees of
SELLER or its affiliates who are not Transferred
Employees as defined in Section 4.01 of this Agreement,
except in the ordinary course of business at the
unsolicited
-12-
request of depositors or cause any of SELLER's other
operations to transfer to any Office 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 any Office as are in the normal
course of business and do not violate the foregoing
restrictions;
(iv) invest in any Fixed Assets on behalf of any Office,
except for commitments made on or before the date of
this Agreement which (a) are disclosed to BUYER on
SCHEDULE C and (b) 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, Office Loans, and Safe Deposit
agreements) relating to any Office, 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) hire (other than to replace a departing employee and/or
to bring the number of employees at the Offices to
normal staffing levels), transfer, reassign or terminate
(except for cause) any employee of any Office, increase
the compensation of any employee of any Office, or
promote any of the employees of any Office except
pursuant to and consistent with customary SELLER
procedures and policies; or
(vii) make any material change to its customary policies for
setting rates on deposits offered at any Office.
-13-
(b) TITLE COMMITMENTS FOR REAL ESTATE. Upon the request of BUYER,
SELLER shall deliver to BUYER within fifteen business days
copies of all title insurance policies, surveys, plats and
like materials with respect to the Owned Real Estate and
Leased Real Estate which are in its possession. If requested
by Buyer within five (5) business days of the date of this
Agreement, SELLER shall deliver to BUYER, at BUYER's expense,
with respect to the Owned Real Estate and Leased 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, as applicable, American
Land Title Association (ALTA) owners (Form B, 1970, Rev 1984)
and/or leasehold title insurance (1975 Form) policies having
an effective date as of the Closing Date in an amount equal to
(a) the most recently available certified tax assessed value
for the Owned Real Estate and (b) for the leasehold interest,
valued based on the remaining rental payments due under the
balance of the remaining term of the lease for the Leased Real
Estate, all subject to the exceptions specified in the Title
Commitments (the "Permitted Exceptions"). If title to all or
part of the Owned Real Estate or Leased Real Estate is
unmarketable or is subject to any defect, lien, encumbrance,
easement, condition, restriction or encroachment other than
the Permitted Exceptions as defined in Section 10.08(c)
herein, then BUYER shall provide written notice thereof to
SELLER within fifteen (15) days of receipt of the Title
Commitments. SELLER shall have thirty 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 does not, BUYER may
elect to attempt to cure or remove such defect or encumbrance
or other matter, for a period of thirty days thereafter. If
such defect or encumbrance or other matter is not cured, then,
in
-14-
addition to any other rights which BUYER may have hereunder,
BUYER shall have the right with respect to the relevant
Office (but not as to any other Office) (i) to declare this
Agreement terminated by written notice to SELLER, (ii)
negotiate, at BUYER cost, with the title company for certain
endorsements to the standard insurance coverage to address
any such defects or encumbrances, 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. The Owned Real Estate
will be sold by SELLER to BUYER free and clear of all liens,
claims, encumbrances and rights of tenants in possession
created by SELLER except for the Permitted Exceptions,
pursuant to an act of sale without any warranties other than
a limited warranty of title as to the acts of SELLER only (a
"Limited Warranty Deed") and subject 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 or leasehold owners title insurance policy, other than
those which may only be deleted by a survey. SELLER also
shall execute and deliver a FIRPTA affidavit at Closing.
BUYER, at its option and expense, may obtain duly certified
surveys for the Owned Real Estate with a metes and bounds
legal description, depicting all easements, rights-of-way,
set-back lines, and any encumbrances appearing on the Title
Commitment, and SELLER hereby grants to BUYER and its
surveyors, agents and contractors right of access to the
Owned Real Estate for the purpose of performing the surveys.
The cost of such surveys shall be borne by BUYER. The legal
descriptions contained in the Surveys shall be used in the
Limited Warranty Deeds to convey the Owned Real Estate and
for title insurance for the Owned Real Estate. BUYER shall
obtain surveys within 15 days after the
-15-
effective date of the Agreement and copies of the same shall be
furnished to SELLER and the title companies.
(c) REQUIRED AUTHORIZATIONS. SELLER shall obtain and procure all
necessary internal corporate approvals and authorizations, if
any, required by SELLER to enable it to fully perform all
obligations imposed on it hereunder which must be performed by it
at or prior to the Closing.
(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 Closing all or any portion of the
Owned Real Estate or Leased 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 either complete the Closing and receive the proceeds
paid or payable on account of such acquisition proceedings, or
terminate this Agreement as to such Office and related assets and
liabilities. If BUYER terminates this Agreement with respect to
such Office, 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 adequate insurance on all the Assets consisting of
Owned Real Estate, Leased 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 insurance proceeds and other
payments, to the extent of the applicable amount set forth in
Section 1.04(a)(ii) or (iii) hereof with respect to
-16-
Owned Real Estate and the replacement cost with respect to 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.
(g) ▇▇▇ ACCOUNTS. Not later than thirty days prior to the expected
Closing Date, SELLER shall, at SELLER's expense, mail notice of
SELLER's resignation as Custodian and the appointment of BUYER as
the Successor Custodian, effective upon Closing, of each ▇▇▇
maintained at the Offices. The notice shall include such other
information that is mutually agreed upon by SELLER and BUYER.
(h) ASSIGNMENT OF LEASES. SELLER shall use its reasonable good faith
efforts to obtain any written consent of any such landlord as
shall be necessary for the effective assignment of the Third
Party Lease and assumption thereof by BUYER as of the Closing
Date. The assignment and assumption by BUYER of the Third Party
Lease shall be substantially the form of SCHEDULE F. If such
necessary consent to assignments is not obtained or other
arrangements satisfactory to SELLER made by the Closing Date,
SELLER may, at its sole option, terminate its duties and
obligations under this Agreement as to such Office and related
assets and liabilities.
(i) UPDATED SCHEDULES. SELLER shall furnish BUYER on or before July
15, 1998, with updated Schedules reflecting the June 30, 1998,
status of the Fixed Assets, Office Loans (by Office, Loan Account
and category) and Deposit Accounts (by Office, by account and by
category reflecting the amount of deposits, the interest rate and
maturity dates associated with such deposits, and indicating the
deposits that constitute Core Deposits).
-17-
2.02 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 6.01 herein
and for BUYER to operate the Offices following the Closing.
BUYER shall provide SELLER with a draft copy of each application,
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 thirty (30) 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 sixty (60) days from the date of this Agreement.
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 such 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)
-18-
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 corporate and other approvals and authorizations, if
any, required on its part 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.
(d) COOPERATION REGARDING LEASED REAL ESTATE. BUYER shall, at
SELLER's request in connection with SELLER's obtaining the
consents specified in Section 2.01(h), advise, in writing, the
lessor of Leased Real Estate, of BUYER's intent to assume and
comply with the terms of the Third Party Lease (as to matters
arising from and after the Closing Date).
-19-
(e) PERFORMANCE. BUYER shall, at BUYER's expense, take such actions
as may be necessary in order for BUYER to perform timely
hereunder, including all necessary data processing and
operational actions as may be appropriate.
2.03 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 transactions described and contemplated
in this Agreement.
3. REPRESENTATIONS AND WARRANTIES.
3.01 REPRESENTATIONS AND WARRANTIES OF SELLER. SELLER represents and
warrants to BUYER as follows:
(a) GOOD STANDING AND POWER OF SELLER. SELLER is a Louisiana banking
corporation duly organized, validly existing, and in good
standing under the laws of the State of Louisiana 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 as enforcement may be limited by federal and state
regulators of SELLER or by bankruptcy, insolvency,
reorganization, moratorium or other laws of general
-20-
applicability relating to or affecting creditors' rights, or
the limiting effect of rules of law governing specific
performance, equitable relief and other equitable remedies or
the waiver of rights or remedies.
(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, 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 Association (or
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. Except for the Owned Real
Estate and Leased Real Estate, SELLER or an affiliate is the sole
owner of each of the Assets free and clear of any mortgage, lien,
encumbrance or restrictions of any kind or nature. As to the
Owned Real Estate, SELLER is sole owner of such Owned Real
Estate, free and clear of all liens, claims, encumbrances and
rights of tenants in possession except for the Permitted
Exceptions. SELLER has a valid leasehold interest in the Leased
Real Estate pursuant, and subject to, the Third Party Lease and
has the use of the Leased Real Estate pursuant to the Third Party
Lease. Upon execution and delivery in accordance with the terms
of this Agreement, the assignment of the Thirty Party Lease will
be duly authorized and approved by SELLER and will be a valid and
-21-
binding assignment to BUYER of all of SELLER's rights and
interests in the Third Party Lease.
(e) ZONING VARIATIONS. As of the date of this Agreement, SELLER has
no knowledge of the receipt of, or contemplation of any intent to
provide, SELLER with any written notice from any governmental
authority of any material uncorrected violations of zoning, fire,
building or similar laws or codes relating to the Owned Real
Estate or Leased Real Estate.
(f) CONDEMNATION PROCEEDINGS. SELLER has received no written notice
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 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. To the knowledge of SELLER, the conduct of
banking business at the Offices is in compliance in all material
respects with all federal, state, parish and municipal laws,
ordinances and regulations applicable to conduct of such
business.
(i) THIRD-PARTY CLAIMS. There are no claims, actions, suits or
proceedings, pending or, to SELLER's knowledge, threatened
against or affecting SELLER which, if
-22-
determined adversely to SELLER, could have a material adverse
effect on the aggregate value of the Assets, Deposit
Liabilities or on consummation of the transactions
contemplated hereby. To SELLER's knowledge, the Offices are
not subject to any claim, demand, suit, proceeding or
litigation of any kind, pending or outstanding, which would
materially affect or limit BUYER's use and enjoyment of the
Offices.
(j) INSURANCE. SELLER maintains such insurance on the Offices and
the Fixed Assets to be purchased by or assigned to BUYER as is
customary in the business of banking.
(k) LABOR RELATIONS. No employee located at any of the Offices is
represented, for purposes of collective bargaining, by a labor
organization of any type. SELLER has no knowledge of any efforts
during the past three years to unionize or organize any employees
at any Office. No claim which, individually or in the aggregate,
is material related to employees at the Offices under the Fair
Labor Standards Act, National Labor Relations Act, Civil Rights
of 1964, ▇▇▇▇▇-▇▇▇▇▇ Act, ▇▇▇▇▇ ▇▇▇▇▇ Act, Civil Rights of Act of
1966, Age Discrimination in Employment Act, Equal Pay Act of
1963, Executive Order No. 11246, Federal Unemployment Tax Act,
Vietnam Era Veterans Readjustment Act, Occupational Safety and
Health Act, Americans with Disabilities Act or any state or local
employment related law, order, ordinance or regulation, no unfair
labor practice, discrimination or wage-and-hour claim is pending
or, to the best of SELLER's knowledge, threatened against or with
respect to SELLER.
(l) 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
-23-
or approval, if required, with respect to the transactions
contemplated by this Agreement.
(m) ENVIRONMENTAL. To the knowledge of SELLER, there are no actions,
proceedings or investigations pending before any environmental
regulatory body, federal or state court with respect to or
threatened against or affecting SELLER in respect of any Office
under the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended ("CERCLA"), or under the 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
the executive officers 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 knowledge of SELLER, SELLER
is not responsible in any material respect under any applicable
environmental law for any release by SELLER or for any release by
an other person at or in the vicinity of any 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 (as a result of the acts or omissions of
SELLER, or, to the actual knowledge of the executive officers of
SELLER, as a result of the acts or omissions of any other
"person") 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 by
-24-
SELLER on premises 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.
(n) ACCESS TO REAL ESTATE. To the knowledge of SELLER, no fact or
condition exists which would result in the termination or
impairment of access to the Owned Real Estate or Leased Real
Estate from adjoining public or private streets or ways or which
could result in discontinuation of necessary sewer, water,
electric, gas, telephone, or other utilities or services and
sewage, sanitation, plumbing, refuse disposal, and similar
facilities servicing the Owned Real Estate and Leased Real Estate
are in full compliance with applicable governmental regulations.
(o) 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, maintenance, or leasing
as tenant of the Owned Real Estate and the Leased Real Estate,
and no actual or potential (other than in the ordinary course of
business) mechanic's lien or other claims are outstanding or
available to any party in connection with the ownership,
operation, management, repair, maintenance, or leasing as tenant
of said properties.
(p) DEPOSITS. Attached as SCHEDULE G is a true and accurate schedule
of all Deposit Accounts (including individual retirement
accounts) of the Offices, prepared as of December 31, 1997,
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.
-25-
(q) OFFICE LOANS. Attached as SCHEDULE H is a true and accurate
schedule of all Office Loans, including accrued and unpaid
interest thereon, computed as of December 31, 1997. Each Office
Loan was made in the ordinary course of business, has been
properly executed by the parties thereto, represents the valid,
and binding obligation of the obligor, enforceable by the holder
thereof in accordance with its terms, is free from any material
defenses, contains customary enforcement provisions such that the
rights and remedies of the holder thereof are adequate for
enforcement of the Office Loans, and, unless approved by SELLER
and documented in its files, no material provision of an Office
Loan has been waived. Each Office Loan (such term to include,
for purposes of this paragraph, the principal documents relating
in any way to such loans, including notes, mortgages, security
instruments and guarantees) complies in all material respects
with all requirements of applicable Federal, state and local laws
and regulations. Each Office Loan that is secured by collateral
is secured by a perfected mortgage or security interest in the
collateral in favor of SELLER as mortgagee or secured party. No
collateral has been released from the interest granted to SELLER,
unless approved by SELLER and documented in its files. The
BUYER's sole remedy for a breach of the representations and
warranties contained in this Section 3.01(q) shall be to require
SELLER to repurchase such Office Loans pursuant to Schedule S
hereto.
(r) PERSONAL PROPERTY. SCHEDULE C 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 Fixed Assets transferred pursuant
to the terms of this Agreement will be conveyed to BUYER free and
clear of any mortgages, liens, security interests or pledges.
-26-
(s) ASSUMED CONTRACTS AND THIRD PARTY LEASE. SCHEDULE D is a true
and accurate schedule of all Assumed Contracts related to the
Offices. Each Assumed Contract is valid and subsisting and in
full force and effect in accordance with its terms, and SELLER
has performed in all material respects all obligations required
to be performed thereunder, and no condition exists which
constitutes, or with notice or lapse of time, or both, would
constitute, a material default.
(t) FIRPTA. SELLER is not a "foreign person" within the meaning of
the Internal Revenue Code Section 1445.
(u) For purposes of this section 3.01, the "knowledge" of SELLER
shall mean the actual knowledge of the President of SELLER.
3.02 REPRESENTATIONS AND WARRANTIES OF BUYER. BUYER represents and
warrants to SELLER as follows:
(a) GOOD STANDING AND POWER OF BUYER. BUYER is a commercial bank
duly organized, validly existing, and in good standing under the
laws of Louisiana 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.
-27-
(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,
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 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) ABILITY TO PERFORM. BUYER has the financial and operational
ability to perform on a timely basis all of BUYER's obligations
hereunder, including the obligation of BUYER to convert all
systems on the Closing Date.
4. ACTIONS RESPECTING EMPLOYEES AND PENSIONS AND EMPLOYEE BENEFIT PLANS.
4.01 EMPLOYMENT OF EMPLOYEES
(a) BUYER shall extend offers of employment, as of the Closing
Date, to such employees of the Offices listed in SCHEDULE R
as may be employed by SELLER at the Offices as of the Closing
Date (including, without limitation, those employees who on
the Closing Date are on family and medical leave, military
leave, personal leave or short-term disability and who elect
to return to work not later than one (1) year following the
Closing Date; individually and collectively the "Leave
Employees" herein) for positions entailing responsibilities
in effect at SELLER as of the Closing Date, and for a base
salary not less than that paid by SELLER
-28-
as of the Closing Date. Employees accepting employment with
BUYER, including but not limited to the Leave Employees, are
referred to herein individually and collectively as the
"Transferred Employees". In the event that BUYER shall
transfer (except in a comparable position and for comparable
compensation to an office not more than 25 miles from the
Office at which the Transferred Employee is employed as of
the Closing Date, or at the request of the Transferred
Employee), terminate employment of, or reduce the base salary
of, a Transferred Employee (the "Terminated Employee")
between the Closing Date and the date which is one (1) year
from the Closing Date, other than for cause, BUYER shall pay
to the Terminated Employee a sum equal to the greater of (i)
that which the Terminated Employee would have received on the
date of such transfer, termination, or reduction in salary
under the First Commerce Corporation Change in Control
Severance Program applicable to the Terminated Employee as of
the date hereof and set forth in SCHEDULE R or (ii) the
severance plan of BUYER otherwise applicable to the
Terminated Employee as of the date of such transfer,
termination, or reduction in base salary. 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.
(b) SELLER will cooperate with BUYER, to the extent reasonably
requested and legally permissible, to provide BUYER with a means
to meet with the subject employees.
4.02 TERMS AND CONDITIONS OF EMPLOYMENT. Except as otherwise provided
explicitly in this Agreement, the terms of employment for each
Transferred Employee shall be determined
-29-
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.
(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. Transferred Employees
shall, upon the satisfaction of applicable eligibility and
service requirements, be eligible to participate in BUYER's
employee stock ownership plan ("ESOP"), provided, however,
that such Transferred Employees will, for purposes of
participation in the BUYER's ESOP, be treated as "new hires"
and will not be permitted to recognize for purposes of
eligibility to participate, benefit accrual or any other
purposes, past service with SELLER. Except as provided in
the immediately preceding sentence or elsewhere herein, BUYER
shall provide such Transferred Employees with credit for the
Transferred Employee's period of service with SELLER
(including any service credited from predecessors by merger
or acquisition to SELLER) towards the calculation of
eligibility and vesting for such purposes as vacation,
severance and other benefits and participation and vesting in
BUYER's qualified pension and/or Profit sharing 401(k) plans,
as such plans may exist (but, except as set forth in (e)
below and for vacation, not for purposes of benefit
accruals, including, without limitation, funding of accrued
pension or profit sharing plans for such Transferred
Employees with respect to any period prior to the Closing
Date).
(c) 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
-30-
Date, and, to the extent permitted by BUYER's plans, any
pre-existing conditions provisions of such plans shall be
waived with respect to any such Transferred Employees.
(d) With respect to any Transferred Employee who is also a Leave
Employee, upon conclusion of his or her short-term disability
or temporary leave of absence, subject to the terms and
conditions of the BUYER's plans and policies and applicable
law, each Transferred Employee on such leave shall receive
the salary and vacation benefits in effect when he or she
went on leave, shall otherwise be treated as a Transferred
Employee, and, to the extent practicable, shall be offered by
the BUYER the same or a substantially equivalent position to
his or her position with SELLER prior to having gone on leave.
(e) 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) arising under SELLER's employee benefit plans and
employee programs prior to 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 Leave Employees prior to any election by such Leave
Employees to return to work with BUYER. 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.
-31-
(f) To the extent permitted under BUYER's applicable 401(k) plan,
SELLER and BUYER shall cooperate in arranging for the transfer to
BUYER's 401(k) plan, as soon as practicable after the Closing
Date and in a manner that satisfies sections 414(l) and
411(d)(6) of the Internal Revenue Code, as amended, of those
accounts held under SELLER's or any of its affiliate's 401(k)
plan on behalf of Transferred Employees.
4.03 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 in connection with the transaction
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.
4.04 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 six months following the
Closing Date, SELLER will not directly solicit Transferred
Employees as prospective officers or employees of SELLER and will
not hire any such Transferred Employee; provided, however, that
SELLER shall not be prohibited or restricted from hiring a
Transferred Employee if such 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 FIRST COMMERCE CORPORATION
and/or SELLER, and SELLER shall continue its employee benefit
programs in full force and effect as benefit programs
-32-
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 as set forth in
Section 4.02, above.
(c) EMPLOYEES OF THE OFFICES. SELLER shall not, without BUYER's
prior written consent (i) increase the aggregate full-time
equivalent size of the work force at the Offices above the
aggregate normal staffing levels designated by SELLER for the
Offices at the date hereof, (ii) transfer or terminate any
Transferred Employee prior to the Closing Date, unless such
person is terminated for cause as determined at the sole
discretion of SELLER or otherwise pursuant to existing SELLER
policies or procedures, or (iii) increase the compensation of any
Transferred Employee except pursuant to existing SELLER policies
and procedures and consistent with past practices.
The obligations of SELLER pursuant to this Section 4.04 shall survive
the Closing.
5. CONDITIONS PRECEDENT TO CLOSING.
5.01 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 and authorizations of all federal and
state authorities required for consummation of the
Acquisition including, but not limited to, approval
-33-
of the United States Department of Justice, shall have been
received and shall be in full force and effect, and all
applicable waiting periods shall have passed.
(b) CORPORATE ACTION. The Board of Directors of BUYER shall have
taken all corporate action necessary by it to effectuate this
Agreement and the Acquisition and BUYER shall have furnished
SELLER with a certified copy of each such resolution adopted by
the Board of Directors of BUYER evidencing the same.
(c) 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 to that effect,
dated as of the Closing Date to the effect specified in
SCHEDULE I to this Agreement.
(d) COVENANTS. Each and all of the covenants and agreements of BUYER
to be performed or complied with at or prior to Closing pursuant
to this Agreement shall have been duly performed or complied with
in all material respects by BUYER, or waived by SELLER, and BUYER
shall have delivered to SELLER a Certificate to that effect,
dated as of the Closing Date to the effect specified in
SCHEDULE I.
(e) 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 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 transaction 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 I, dated as of the Closing Date and signed by the
Chairman,
-34-
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.
(f) OPINION OF COUNSEL. BUYER shall have delivered to SELLER an
opinion, dated as of the Closing Date, of legal counsel
reasonably satisfactory to SELLER and its counsel, in form
and substance reasonably satisfactory to SELLER and its
counsel, to the effect specified in SCHEDULE J.
(g) RECEIPT OF CONSENTS OF THIRD PARTIES. SELLER shall have
received, in form and substance satisfactory to SELLER, any
and all consents, approvals or waivers of third parties as
SELLER, in its sole discretion, may deem necessary or
appropriate to enable it to consummate the transactions
contemplated by this Agreement without additional cost,
expense, or liability to SELLER or its affiliates.
(h) MERGER. The merger (the "Merger") contemplated by the agreement
dated as of October 20, 1997, between FIRST COMMERCE
CORPORATION and BANC ONE CORPORATION ("Merger Agreement")
shall have been consummated ("Merger Agreement").
5.02 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
-35-
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) CORPORATE ACTION. The Board of Directors of SELLER shall have
taken all corporate action necessary to effectuate this Agreement
and the Acquisition; and SELLER shall have furnished BUYER with a
certified copy of each such resolution adopted by the Board of
Directors of SELLER evidencing the same.
(c) 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 to that
effect, dated as of the Closing Date to the effect specified in
SCHEDULE K.
(d) COVENANTS. Each and all of the covenants and agreements of
SELLER to be performed or complied with pursuant to this
Agreement shall have been duly performed or complied with in all
material respects by SELLER, or waived by BUYER, and SELLER shall
have delivered to BUYER a Certificate to that effect, dated as of
the Closing Date to the effect specified in SCHEDULE K.
(e) 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 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;
-36-
and BUYER shall have been furnished with a Certificate, in
substantially the form specified in SCHEDULE K, dated as of
the Closing Date and signed by the Chairman, President, or
Vice President, and the Secretary or Assistant Secretary of
SELLER, to the effect that no such litigation, investigation,
inquiry, or proceeding is pending or threatened to the best of
their knowledge.
(f) OPINION OF COUNSEL. SELLER shall have delivered to BUYER an
opinion, dated as of the Closing Date, of legal counsel
reasonably satisfactory to BUYER and its counsel, in form and
substance reasonably satisfactory to BUYER and its counsel, to
the effect specified in SCHEDULE L.
(g) REAL PROPERTY. Any Title Commitment (as defined in Section
2.01(b) herein) reasonably requested by BUYER 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 such Section, and
such updated Title Commitment shall not include any special
exceptions other than those set forth in the original Title
Commitment and any other Permitted Exceptions.
(h) FIXED ASSETS. There shall have been no material alteration in or
material adjustment to the Fixed Assets. For purposes of this
subsection (h), it will not be considered to be a material
alteration or material adjustment to the Fixed Assets if
(i) there is damage or destruction to the Fixed Assets as
contemplated by Section 2.01(f) herein and SELLER complies with
said Section 2.01(f), (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.
-37-
(i) No Material Adverse Change. There shall not have occurred any
material adverse change from December 31, 1997, through June 30,
1998, or from June 30, 1998, to the Closing Date in the financial
condition, results of operations or business of the Offices taken
as a whole; provided, however, that the occurrence of an event
specifically permitted under this Agreement or otherwise
expressly consented to in writing by BUYER are expressly deemed
not to constitute such a material adverse change.
5.03 NON-SATISFACTIONS 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; provided that the non-occurrence
of the Closing by reason of termination of the Merger Agreement shall
under no circumstances be attributed to SELLER or BUYER.
5.04 WAIVERS OF CONDITIONS PRECEDENT. The conditions specified in
Sections 5.01 and 5.02 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.
6. CLOSING.
6.01 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 is the
later of the next day after which all required regulatory approvals
have
-38-
been obtained and all applicable regulatory waiting periods
associated therewith have expired, the Merger has been consummated,
and September 11, 1998; provided that in all cases the Closing Date
shall occur on a Friday. The precise date on which the Closing
shall occur (the "Closing Date") shall be confirmed by the parties
in writing not less than five (5) days after the later of the
consummation of the Merger and the receipt of all required
regulatory approvals.
6.02 SELLER'S ACTIONS AT CLOSING. At the Closing (unless another time is
specifically stated in Section 6.04 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; and
(b) execute, acknowledge and deliver to BUYER all such Limited
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 and reasonably acceptable to
SELLER to consummate the sale, assignment, and transfer of the
Assets sold or assigned to BUYER hereunder and such other
documents as the title company may reasonably require; the
originals of all blueprints, construction plans, specifications
and plat relating to the Owned Real Estate, which 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) execute, acknowledge and deliver to BUYER a duly executed and
recordable assignment to BUYER of the Third Party Lease and a
consent to assignment from the landlord of the Third Party Lease
all in substantially as set forth in SCHEDULE F.
-39-
(d) 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 and Office Loans:
(i) originals or copies of signature cards, orders, contracts,
and agreements between SELLER and depositors of the
Offices and borrowers with respect to Office Loans, 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 maintained by SELLER relative to any Deposit
Liabilities being assumed by BUYER and Office Loans being
acquired by BUYER; and
(e) 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); and
(f) make available and transfer to BUYER on the Closing Date and
prior to the conclusion of the Closing any funds required to be
paid to BUYER pursuant to the terms of this Agreement; and
-40-
(g) 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
(h) assign by endorsement substantially in a form as provided in
SCHEDULE M attached hereto, transfer and deliver to BUYER the
contract, promissory note or other evidence of indebtedness
related to the Office Loans together with the loan file and
records (in whatever form or medium then maintained by SELLER)
pertaining to such Office Loans; and
(i) assign to BUYER all SELLER's rights in and to the Assumed
Contracts which are assignable and which constitute part of the
Assets.
6.03 BUYER'S ACTIONS AT THE CLOSING. At the Closing (unless another time
is specifically stated in Section 6.04 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 N, 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 Limited Warranty Deeds
on
-41-
or after Closing and securing gap title insurance coverage in
the event the Limited Warranty Deeds are recorded post-closing;
and
(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 and prior to the conclusion of
the Closing 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 Third Party Lease
and Assumed Contracts and the IRA's for all periods following the
Closing Date with respect thereto.
6.04 METHODS OF PAYMENT. Subject to the adjustment procedures set forth in
this Section 6.04, 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 1.04(a) hereof, shall be made on the Closing Date in
immediately available United States Federal Funds. At least two
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 1.04(a) hereof, shall be
computed based upon (a) the aggregate book value plus accrued interest
of the Office Loans 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
-42-
Date, (b) 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, 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 P attached. Furthermore, within ten (10) business days
after the Closing, the parties shall make appropriate post-closing
adjustments, consistent with the provisions of Section 1.04 hereof,
based upon actual Deposit Accounts as of the Closing Date, Office
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 Q. 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.
6.05 AVAILABILITY OF CLOSING DOCUMENTS. The documents proposed to be used
and delivered at the Closing shall be made available for examination
by the respective parties not later than 12:00 noon, New Orleans time,
on the tenth Business Day prior to the Closing Date.
6.06 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 6.04,
the Acquisition shall be deemed to be effective and the Closing shall
be deemed to have occurred.
-43-
7. CERTAIN TRANSITIONAL MATTERS.
7.01 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 or 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
7.01 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. BUYER shall submit
and file any required reports on IRS Form 1099 with respect to
interest accrued on Deposit Liabilities after the Closing Date.
The provisions of this subsection 7.01(a) shall in no way limit
BUYER's duties or obligations arising under Section 1.03(b)
hereof.
(b) BUYER shall, (i) not earlier than the later of the time of
procurement of all regulatory approvals required for consummation
of the transaction contemplated by this Agreement or the Merger
or (ii) nor later than ten days prior to the Closing Date, notify
all depositors of the Offices by letter, acceptable to SELLER,
produced in, if
-44-
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, 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 transactions contemplated by this Agreement, will be
terminated. As an enclosure to such notices, BUYER may, and
no later than the Closing Date BUYER shall, 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
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 paragraph, BUYER will not
contact customers of the Offices 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 transaction. Anything to the
contrary herein notwithstanding, BUYER shall provide, at no
cost to SELLER, any and all notices, communications, and
filings which may be required by law, regulation, or
otherwise, relating to any changes in terms and other matters
relating to the Deposit Accounts and the Office Loans
occurring subsequent to the Closing Date. 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
-45-
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 7.02(b) herein, 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, as soon as practicable but not more than 10 business
days after the Closing Date, prepare and transmit at BUYER's
expense to each of the obligors on Office Loans transferred to
BUYER pursuant to this Agreement a notice to the effect that the
loan has been transferred and directing that payment be made to
BUYER at the address specified by BUYER, with BUYER's name as
payee on any checks or other instruments used to make payments,
and, with respect to such loan on which a payment notice or
coupon book has been issued, to issue a new notice or coupon book
reflecting the name and an address of BUYER as the person to whom
and place at which payments are to be made.
(g) If the balance due on any Office Loan transferred to BUYER
pursuant to this Agreement has been reduced by SELLER as a result
of a payment by check or draft received prior to the close of
business on the Closing Date, which item is returned unpaid to
SELLER after the day immediately preceding the Closing Date, the
asset
-46-
value represented by the loan transferred shall be
correspondingly increased and an amount in cash equal to such
increase shall be promptly paid by BUYER to SELLER.
(h) 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.
(i) BUYER hereby grants to SELLER and its contractors access to the
Offices until 5:00 P.M. local time on the day following the
Closing Date, or such other later date and time as the parties
may agree, at no cost or expense to SELLER, for conduct of
activities consistent with this Agreement in conjunction with the
transactions contemplated hereby.
(j) The duties and obligations of Buyer in this section 7.01 shall
survive the Closing.
7.02 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 pro-rated to the Closing Date. SELLER shall submit and
file any required reports on IRS Form 1099 with respect to
interest accrued on Deposit Liabilities through the Closing Date.
(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 7.02(b). As soon as practicable
-47-
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,
Office Loans, and safe deposit business (if such data processing
support currently is provided with respect to such business)
maintained at the Offices (such Deposit Accounts, Office Loans
and safe deposit business, if applicable, hereinafter called 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
3480 cartridges (non-compressed data) or on nine channel 6250
B.P.I. EBCDIC formatted tape. By not later than 10:00 A.M. local
time on the day immediately following the Closing Date, SELLER
shall make the foregoing documents and materials available for
pick-up by BUYER at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ (the "Operations Center"). 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 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, which request shall specify the time,
duration and place of such training, and which 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
-48-
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 8.10 hereof.
(f) SELLER shall terminate its ATM/debit card service effective as of
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
7.01(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, further, BUYER shall assume
all responsibility and liability with respect thereto following
the Closing. For a period ending on the earlier of 90 days
following the Closing Date or five days prior to the conversion
of SELLER's systems to systems of BANC ONE CORPORATION or any of
its affiliates ("the Conversion"), SELLER will receive incoming
ACH items and forward them to Buyer by electronic file
transmission and SELLER will intercept incoming wires and forward
them to Buyer through the Federal Reserve wire system the same
day received. To facilitate electronic file transmission, BUYER
shall at no expense to SELLER obtain compatible software and
networking capabilities with the Network Banker system. Fees
payable to any third party, including the Federal Reserve System,
shall be paid by Buyer. Deposits and Loan payments related to
the accounts sold (i) received by mail, ATM or other means other
than ACH or wire, will be forwarded to Buyer the next day, and
(ii) will not be accepted if attempted to be made in person.
-49-
(g) As of the opening of business on the first business 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 and/or the Office Loans (hereinafter
collectively referred to as "Paper Items"). BUYER shall bear all
charges and costs imposed by the Federal Reserve in connection
with the reassignment of account number ranges for sorting the
Paper Items.
If the Federal Reserve and/or any other regional or local
clearinghouse for negotiable instruments fails, refuses or is
unable to direct sort such Paper Items for delivery to BUYER with
the result that such Paper Items are presented to SELLER, on each
business day following the Closing and continuing until the
earlier of ninety (90) days after the Closing or the Conversion,
SELLER will make available to BUYER for pick up at the Operations
Center at 12:00, noon on the next business day, all of the Paper
Items which are received by SELLER from the FRB and/or any
regional or local clearinghouse on the prior business day.
SELLER shall also electronically transmit to BUYER by 5:00 a.m.
each business day information relating to checks received by
SELLER on the prior business day. At the same ▇▇▇▇ ▇▇▇▇▇▇
delivers physical custody of Paper Items to BUYER, SELLER shall
also make available to BUYER information and records, including
but not limited to systems printouts, concerning such Paper Items
and concerning incoming Automated Clearing House items ("ACH
items") as well as outstanding Automatic Teller Machine ("ATM")
transactions. Such information and records, including but not
limited to systems printouts, will utilize the most recent
account number designated by SELLER for each of the Deposit
Accounts and/or the Office Loans. SELLER shall initiate
appropriate Notification of Change requests relating to
appropriate routing matters at the sole expense of BUYER until
the earlier of 90 days following the Closing Date or the
Conversion. Each business day SELLER will endeavor to see that
the sum of (a) the actual Paper Items provided to BUYER plus
(b) all ACH items and ATM
-50-
transactions captured by SELLER in its information and records
balance with the sum of (c) the information and records,
including but not limited to systems printouts, provided by
SELLER relative to the Paper Items plus (d) the information
and records, including but not limited to systems printouts,
provided relative to the ACH items and ATM transactions
affecting the Deposit Accounts and/or the Office Loans.
Except as otherwise expressly noted, SELLER shall provide the
foregoing at no charge to BUYER for a period not to exceed ten
(10) days from the Closing Date except that BUYER shall pay any
charges assessed to SELLER by the FRB, a national or local
clearinghouse and/or SELLER's agent and/or processor to the
extent such assessments relate to the Deposit Accounts. BUYER
shall be responsible for pick up of the data to be provided by
SELLER and shall compensate SELLER for activity subsequent to the
referenced ten (10) day period in the amount of $50.00 per day
and $.25 per item.
SELLER and BUYER 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 7.02(g)
might be effected promptly. BUYER shall establish and maintain a
settlement account with First National Bank of Commerce, or
another affiliate of BANC ONE CORPORATION acceptable to SELLER,
to facilitate the daily settlements.
SELLER shall not be liable to BUYER for any failure to provide
the data required by this Section 7.02(g) to the extent any such
failure results from causes beyond SELLER's control including
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 in
clearings from the FRB or such clearinghouse.
-51-
(h) SELLER shall, not earlier than the time of procurement of all
regulatory approvals required for consummation of the transaction
contemplated by this Agreement nor later than twenty days prior
to the Closing Date (or such longer period as may be required by
law), notify all depositors of the Offices and all borrowers of
any Office Loan by letter 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 and/or loans, of BUYER's pending
assumption of the Deposit Liabilities and acquisition of the
Office Loans hereunder, 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 or Office Loans 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,
loan payments received by SELLER with respect to the Office
Loans. 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. BUYER shall reimburse SELLER
within 30 days of notice by SELLER to BUYER for any payments
tendered by borrowers which were credited to the outstanding
balance of any Office Loan prior to the Closing Date and which
are subsequently returned or otherwise withdrawn for any reason
and SELLER shall assign to BUYER any rights of SELLER to recovery
of such payments as against the relevant borrower.
-52-
(j) The duties and obligations of the parties in this section 7.02
shall survive the Closing; provided, however, that SELLER shall have no
obligation to take any action or furnish any service for the benefit of, or in
favor of, any third party, unless such third party is a permitted assignee of
BUYER pursuant to Section 10.06 hereof.
7.03 OVERDRAFTS AND TRANSITIONAL ACTION. Overdrafts paid on the Deposit
Accounts with respect to ledger dates after the Closing Date will be
the responsibility and risk of BUYER. Overdrafts approved with
respect to ledger dates prior to the Closing Date will be the
responsibility and risk of SELLER.
7.04 ATMS AND DEBIT CARDS
(a) SELLER shall provide to BUYER no later than sixty (60) days prior
to the Closing Date, a test tape, along with a file format or
file layout and a production tape thirty (30) days before the
Closing Date, 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 for the Offices. SELLER
shall cause its ATM 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
-53-
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 6.04
hereof to reflect all such transactions which cannot be
reasonably calculated as of the Closing.
7.05 ENVIRONMENTAL MATTERS.
(a) SELLER has provided to BUYER, and BUYER hereby acknowledges
receipt of, copies of such environmental studies, reports and
audits, including but not limited to, Phase I environmental site
assessments (the "Phase I Assessments" herein), if any, that are
in its possession for any Owned Real Estate. BUYER shall have
the right, but not the obligation, at its sole cost and expense,
to cause Phase I Assessments to be conducted as it deems
necessary to determine whether there has been any soil, surface
water, groundwater, or building space contamination on or under
the Owned Real Estate.
(b) If such environmental studies, reports, audits or Phase I
Assessments reasonably indicate the necessity or desirability of
further investigation to determine whether or not an
Environmental Hazard exists at such Owned Real Estate, BUYER
shall notify SELLER in writing, not later than thirty (30) days
after the signing of this Agreement, of BUYER's desire to have
an environmental consultant selected by SELLER (the
"ENVIRONMENTAL CONSULTANT"), to the extent reasonable and
appropriate, conduct Phase II environmental site assessments (
the "Phase II Assessments" herein). Any such further
investigation or testing shall be conducted in such a manner so
as not to interfere with the normal operation of the Office(s)
involved. All
-54-
such Phase II Assessments shall be treated as information
subject to Section 8.01 of this Agreement, shall be completed
not less than sixty (60) days after the signing of this
Agreement, and shall be conducted at no cost or expense to
SELLER. Further, BUYER shall indemnify and hold harmless
SELLER and its affiliates and its and their employees,
officers, directors, agents, tenants, and landlords from and
against any and all liability, loss, cost, and expense,
however arising, including attorney fees, as a direct or
indirect result of any injuries to persons or property
occurring in conjunction with conduct of the Phase II
Assessments.
(c) SELLER shall have a period of 10 business days from receipt of
such notice to elect, at its sole option, to consent to conduct
of the Phase II Assessment or to terminate this Agreement with
respect to the relevant Office which is the proposed subject of
the Phase II Assessment (the "Removed Office") and any and all
assets and liabilities associated therewith. In the event of such
termination, if the Removed Office is the only Office which is
the subject of this Agreement, this Agreement shall be deemed
terminated in accordance with Section 9.01 herein and the Deposit
described in Section 10.15 shall be refunded to BUYER. In the
event of such termination where the Removed Office is not the
only Office which is the subject of this Agreement, this
Agreement shall remain in full force and effect except that the
Removed Office and any and all assets and liabilities associated
therewith shall be deemed not the subject of this Agreement and
eliminated therefrom.
(d) In the event that the Phase II Assessment is conducted and the
Environmental Consultant discovers an Environmental Hazard during
any such Phase II Assessment at any single parcel of Owned Real
Estate, the remediation of which, in the reasonable judgment of
the Environmental Consultant, is or would be the responsibility
of SELLER, or BUYER should it acquire such Owned Real Estate, and
will result in projected remediation costs of $100,000 or more
for such single parcel of Owned Real Estate, BUYER, in its sole
discretion, may either (x) buy such Owned Real Estate pursuant to
Section 1.03 hereof, or (y) lease from SELLER such single
-55-
parcel of Owned Real Estate pursuant to a Lease Agreement which
shall provide as follows:
(i) Such Lease Agreement shall be for a term of three (3) years
from the Closing Date, with no obligation or right to renew
(it being the intention of SELLER that BUYER locate an
alternative branch site during such three years unless
remediation occurs pursuant to this Section 7.05), at a
rental equal to a fair market rental value;
(ii) SELLER may sell such Owned Real Estate to any person at
any time during the term of such Lease Agreement, subject
to such Lease Agreement, for a price;
(iii) During the term of such Lease Agreement, in the event that
SELLER shall deliver to BUYER a report of a qualified
environmental engineer or consultant certifying that the
Environmental Hazard, at or on any such parcel of Owned
Real Estate which is the subject of the Lease Agreement,
has been remediated to the extent reasonably required
under applicable Environmental Laws, BUYER shall be
required to purchase such parcel of Owned Real Estate at
the net book value as of the close of business of the
month-end day most recently preceding the Closing Date;
and
(iv) Other terms and conditions of the Lease Agreement shall be
typical to branch leases in the relevant market of the
subject Owned Real Estate and as negotiated between SELLER
and BUYER.
If the projected remediation cost is less than $100,000 for any
single parcel of Owned Real Estate, BUYER shall acquire such parcel
and such cost shall be borne by BUYER without indemnity, price
adjustment, or set off under this Agreement, and BUYER shall be
deemed to have waived any and all claims against SELLER and its
affiliates and its and their officers, directors,
-56-
employees, or arising directly or indirectly as a result of the
Environmental Hazards with respect to such parcel.
(e) BUYER agrees that it and the Environmental Consultant shall
conduct any Phase II Assessments or other investigations pursuant
to this Section with reasonable care and subject to customary
practices among environmental consultants and engineers,
including, without limitation, following completion thereof, the
restoration of any site to the extent practicable to its
condition prior to such site assessment or investigation and the
removal of all monitoring ▇▇▇▇▇.
(f) Any lease of a parcel of Owned Real Estate pursuant to this
Section 7.05 shall in no way affect the transfer of any related
assets or liabilities, other than such parcel of Owned Real
Estate, to the BUYER at the Closing.
(g) For purposes of this Section 7.05, the term "Environmental Law"
shall mean any Federal or state law, statute, rule, regulation,
code, order, judgment, decree, injunction, or agreement with any
Federal or state governmental authority, (x) relating to the
protection, preservation, or restoration of the environment
(including, without limitation, air, water, vapor, surface water,
groundwater, drinking water supply, surface land, subsurface
land, plant and animal life or any other natural resource) or to
human health or safety or (y) the exposure to, or the use,
storage, recycling, treatment, generation, transportation,
processing, handling, labeling, production, release or disposal
of hazardous substances, in each case as amended and now in
effect. Environmental Laws include, without limitation, the
Clean Air Act (42 U.S.C. section 7401 et seq.); the Comprehensive
Environmental Response Compensation and Liability Act (42 U.S.C.
section 9601 et seq.); the Federal Water Pollution Control Act
(33 U.S.C. section 1251 et seq.); the Occupational Safety and
Health Act (29 U.S.C. section 651 et seq.); provided, however,
that the definition of "Environmental Law" shall not include any
Federal or state law, statute, rule,
-57-
regulation, code, order, judgment, decree, injunction or
agreement with any governmental authority relating to asbestos or
asbestos-containing materials.
(h) For purposes of this Section 7.05, the term "Environmental
Hazard" shall mean the presence of any Hazardous Substance in
violation of, and reasonably likely to require material
remediation costs under, applicable Environmental Laws; provided,
however, that the definition of Environmental Hazard shall not
include friable asbestos and asbestos-containing materials.
(i) For purposes of this Section 7.05, the term "Hazardous Substance"
shall mean any substance, whether liquid, solid, or gas, (a)
listed, identified or designated as hazardous or toxic to a level
which requires remediation under any Environmental Law; (b)
which, applying criteria specified in any Environmental Law, is
hazardous or toxic; or (c) the use or disposal of which is
regulated under Environmental Law.
7.06 EFFECT OF TRANSITIONAL ACTION. Except as and to the extent expressly
set forth in this Article 7, nothing contained in this Article 7 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 7.
7.07 LEASE OF OPERATIONS CENTER. BUYER agrees to lease the Operations
Center portion of the Central Center branch to SELLER at a fair market
rental to be agreed upon prior to Closing for an initial term through
December 31, 1998, with SELLER having the option to renew on a
month-to-month basis through March 31, 1999.
8. GENERAL COVENANTS AND INDEMNIFICATION.
8.01 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
-58-
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 or received from a third person not known
by BUYER to be under any obligation to SELLER; 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 workpapers 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 8.01 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 8.01 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 this purchase and assumption
transaction may be provided to BUYER's affiliates as necessary for the
purpose of consummating the transaction which is the subject of this
Agreement subject to compliance with the foregoing restrictions.
8.02 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 workpapers
containing, and
-59-
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 8.02 are of the essence and shall survive
any termination of this Agreement; PROVIDED, HOWEVER, that SELLER nor
any of its affiliates shall be deemed to have violated the covenants
set forth in this Section 8.02 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 this purchase and
assumption transaction may be provided to BANC ONE CORPORATION and
SELLER's affiliates for the purpose of consummating the transaction
which is the subject of this Agreement. The covenants and obligations
of SELLER hereunder shall survive the Closing and any earlier
termination of this Agreement.
8.03 INDEMNIFICATION BY SELLER. From and after the Closing Date, SELLER
shall indemnify, hold harmless, and defend BUYER from and against all
losses and liabilities, including reasonable attorneys' fees and
expenses, arising out of any actions, suits, or proceedings commenced
prior to the Closing (other than proceedings to prevent or limit the
consummation of the Acquisition) relating to operations at the Offices
and/or the Deposit Liabilities of the Offices. The obligations of
SELLER under this Section 8.03 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 8.03, 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 Office 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. The rights of BUYER
under this section shall not apply to any suits, judgments, demands,
set-offs, or other claims arising directly or indirectly in
conjunction with the Office Loans or other Assets transferred in
accordance with this Agreement except claims for personal injury
-60-
arising from injuries occurring at the Offices prior to the Closing.
All notices required by the preceding sentence shall be given within
fifteen 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. SELLER shall have the right, subject to the provisions of
Section 8.05 hereof, 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. The covenants and obligations of SELLER hereunder
shall survive the Closing.
8.04 INDEMNIFICATION BY BUYER. From and after the Closing Date, BUYER
shall indemnify, hold harmless and defend SELLER from and against all
claims, losses, liabilities, demands and obligations, including
without limitation reasonable attorneys' fees and operating expenses
which SELLER may receive, suffer, or incur in connection with (i) any
losses incurred by SELLER related to SELLER's compliance with
instructions from BUYER made pursuant to Section 7.04 of this
Agreement and not related to any negligence or malfeasance on the part
of SELLER and (ii) operations and transactions occurring after the
Closing and which involve the Assets transferred, the Deposit
Liabilities or Office Loans and the other obligations and liabilities
assumed pursuant to this Agreement. The obligations of BUYER under
this Section 8.04 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 8.04, 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 Office 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. BUYER
shall have the right, subject to the provisions of Section 8.05
hereof, to take over SELLER's
-61-
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. The covenants and obligations of
BUYER hereunder shall survive the Closing.
8.05 CLAIMS FOR INDEMNITY.
(a) A claim for indemnity under Sections 8.03 or 8.04 of this
Agreement may be made by the claiming party by the giving of
written notice thereof to the other party.
(b) Promptly after receipt by either party of notice of the assertion
of any claim or the commencement of any action, suit or
proceeding with respect to which a claim for indemnification will
be made under this Agreement, such party (the "Indemnified
Party") shall give written notice thereof to the other party (the
"Indemnitor") and will thereafter keep the Indemnitor reasonably
informed with respect thereto, provided that failure of the
Indemnified Party to give the Indemnitor prompt notice as
provided herein shall not relieve the Indemnitor of its
obligations hereunder except to the extent, if any, it shall have
been materially prejudiced thereby. In case any such action,
suit or proceeding is brought against an Indemnified Party, the
Indemnitor shall be entitled to participate in (and, in its
discretion, to assume) the defense thereof with counsel
reasonably satisfactory to the Indemnified Party, provided,
however, that the Indemnified Party shall be entitled to
participate in any such action, suit or proceeding with counsel
of its own choice at the expense of the Indemnitor if, in the
good faith judgment of the Indemnified Party's counsel,
representation by the Indemnitor's counsel may present a conflict
of interest or that there may be defenses available to the
Indemnified Party which are different from or in addition to
those available to the Indemnitor. The Indemnitor will not
settle any claim, action, suit or proceeding which would give
rise to the Indemnitor's liability under its indemnity unless
such settlement includes as an unconditional term thereof the
giving by the claimant or plaintiff of a release of the
Indemnified Party, in form and substance
-62-
satisfactory to the Indemnified Party and its counsel, from all
liability with respect to such claim, action, suit or proceeding.
If the Indemnitor assumes the defense of any claim, action, suit
or proceeding as provided in this Section 4.1, the Indemnified
Party shall be permitted to join in the defense thereof with
counsel of its own selection and at its own expense. If the
Indemnitor shall not assume the defense of any claim, action,
suit or proceeding, the Indemnified Party may defend against such
claim, action, suit or proceeding in such manner as it may deem
appropriate, provided that an Indemnified Party shall not settle
any claim, action, suit or proceeding which would give rise to
the Indemnitor's liability under its indemnity without the prior
written consent of the Indemnitor, which consent shall not be
unreasonably withheld.
8.06 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 or Office Loans are to
be acquired by BUYER pursuant to this Agreement to discontinue their
account or business relationships with SELLER or its affiliates.
8.07 SOLICITATION OF CUSTOMERS BY SELLER AFTER THE CLOSING. For a period
of six (6) months following the Closing Date, SELLER will not
knowingly solicit customers whose Deposit Liabilities or Office Loans
are assumed or acquired by BUYER pursuant to this Agreement (the
"Acquired Customers"), except as may occur in connection with (i)
advertising or solicitations directed to the public generally, (ii)
solicitations outside the Lafayette market area and (iii) customers or
borrowers with a banking or other relationship with SELLER or its
affiliates at offices other than in the Lafayette area, including
deposit or loan relationships, or who have or maintain more than one
place of business. The covenants and obligations of SELLER hereunder
shall survive the Closing. Notwithstanding the foregoing, nothing in
this Section 8.06 shall prohibit SELLER from soliciting Acquired
-63-
Customers as part of any general advertising or soliciting campaign if
such advertising or solicitation is not direct to, or focused on, the
Acquired Customers.
8.08 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. Further, BUYER
and SELLER shall cooperate in order to prepare and file, or cause to
be prepared and filed, at the sole cost and expense of BUYER with any
appropriate third parties, any and all documents and notices which are
necessary and proper to transfer to BUYER any security interests and
other rights of SELLER in and to collateral securing the Office Loans
as promptly as practicable on or after the Closing Date. 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.
8.09 OPERATION OF THE OFFICES. Except as otherwise expressly provided in
this Agreement, after the Closing Date neither SELLER, its
subsidiaries, affiliates nor parent corporation shall be obligated to
provide for 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
-64-
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 "CENTRAL BANK", "FIRST COMMERCE CORPORATION",
"MARQUIS INVESTMENTS, L.L.C.", "FIRST MONEY, L.L.C." or "BANK ONE" or
the name of any affiliate of FIRST COMMERCE CORPORATION or BANC ONE
CORPORATION. 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
1.02(c), SELLER will retain its signs located at the Offices. If
removed by BUYER in conjunction with its installation of new signs,
BUYER 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. Until the expiration of applicable legal
requirements for retention of the specific records, 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
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
-65-
request. After such requirements have expired, BUYER or SELLER, as
the case may be, may destroy such records unless within 15 days of
the expiration of such requirement, the BUYER or SELLER, as the
case may be, requests that such records be delivered at the
requesting party's expense, to the requesting party. The covenants
and obligations of the parties hereunder shall survive the Closing.
8.11 INDIVIDUAL RETIREMENT ACCOUNTS. All IRAs 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 IRAs, advise the account holders that it has withdrawn its
resignation as custodian or transfer the amount in such IRAs to the
account holders.
8.12 NON-SOLICITATION OF EMPLOYEES. Except as otherwise provided in
Sections 4.01 through 4.04 herein, BUYER agrees that for a period of
six (6) months from the date of this Agreement, or for a period of six
(6) months from such date as this Agreement may be terminated pursuant
to Section 9 hereof, neither BUYER nor any of its subsidiaries or
affiliates will:
a) directly or indirectly solicit for employment or employ any
persons who are employees in the retail group of BANC ONE
CORPORATION, FIRST COMMERCE CORPORATION, SELLER or their
subsidiaries or affiliates; or
b) directly or indirectly solicit for employment or employ any
other persons who are employees of BANC ONE CORPORATION, FIRST
COMMERCE CORPORATION, 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
transaction contemplated hereby, whether prior to execution of
this Agreement or subsequent thereto. As used solely in this
subsection 8.11(b), 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
-66-
employees of SELLER or its subsidiaries or affiliates. Subject to
the prohibitions contained in subsection 8.11(a), nothing in this
section 8.11(b) shall prohibit BUYER or BUYER's affiliates or
subsidiaries from hiring a person covered by this subsection
8.11(b) who contacts BUYER on his or her own initiative (and not
in response to solicitation by BUYER in violation of this
section) or a person covered by this subsection 8.11(b) who is no
longer in the employ of BANC ONE CORPORATION, FIRST COMMERCE
CORPORATION, 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 Section 9 hereof.
9. TERMINATION.
9.01 TERMINATION BY MUTUAL AGREEMENT. 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.
9.02 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; or
(b) in the event any of the conditions precedent specified in Section
5.01 of this Agreement has not been met as of the date required
by this Agreement and, if not so met, has not been waived by
SELLER; or
-67-
(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, with the advice of counsel,
that a regulatory approval required for consummation of the
Acquisition will not be obtained within a time reasonably
satisfactory to SELLER; or
(d) on or after a date which is 180 calendar days following the date
of this Agreement, (the "Termination Date") if the Closing has
not then occurred unless the failure to consummate by such date
is due to a breach of this Agreement by SELLER; or
(e) at the option of SELLER 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
substantially all of the 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.
(f) at the option of SELLER in the event that there is a material
adverse change in the financial condition or results of
operations of BUYER, or pending or threatened litigation or
claims with respect to the transactions contemplated by this
Agreement which, in the opinion of SELLER, may hinder or delay
the ability of the parties to consummate the transactions
contemplated by this Agreement.
(g) at the option of SELLER in the event that consents to the
transactions contemplated by this Agreement from such third
parties as SELLER may reasonably deem necessary or appropriate
are not available prior to the Closing Date without additional
cost or expense to SELLER, or in the event that releases of
SELLER by such third parties as SELLER may reasonably deem
necessary or appropriate are not available prior to the Closing
Date without additional cost or expense to SELLER.
-68-
9.03 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; or
(b) in the event any of the conditions precedent specified in Section
5.02 of this Agreement has not been met as of the date required
by this Agreement and, if not so met, 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, with the advice of
counsel, that a regulatory approval required for consummation of
the Acquisition will not be obtained; or
(e) on or after the Termination Date if the Closing has not then
occurred unless the failure to consummate by such time is due to
a breach of this Agreement by BUYER.
9.04 TERMINATION OF MERGER AGREEMENT. This Agreement shall terminate,
without the necessity for any action by either party, on the date of
any termination of the Merger Agreement.
9.05 EFFECT OF TERMINATION. The termination of this Agreement pursuant to
Sections 9.02 or 9.03 of this Article 9 shall not release any party
hereto from any liability or obligation to the other party hereto
arising from (i) a 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. The termination of this
Agreement pursuant to Section 9.04 shall relieve any party hereto from
any liability or
-69-
obligation to the other party, other than expense reimbursement
obligations incurred by such party pursuant to express provisions
hereof.
10. MISCELLANEOUS PROVISIONS.
10.01 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.
10.02 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.
10.03 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 at the Closing,
except for:
(a) those representations and warranties contained in any Limited
Warranty Deeds delivered by SELLER to BUYER at the Closing;
(b) those representations and warranties contained in any ▇▇▇▇ of
sale relating to the Assets delivered by SELLER to BUYER at
Closing;
(c) those representations and warranties contained in any instrument
of assumption, any Third Party Lease or in any Certificate in the
forms of SCHEDULE I and SCHEDULE N, respectively, delivered by
BUYER to SELLER at the Closing;
-70-
(d) those representations and warranties contained in any Certificate
in the form of SCHEDULE K, delivered by SELLER to BUYER at the
Closing other than the representations set forth in paragraphs
(2) and (3) thereof; and
(e) those representations and warranties contained in Section 3.01(q)
hereof and in any certificate in the form of Schedule S delivered
by SELLER to BUYER at Closing which shall survive through the
Office Loan Settlement Date.
10.04 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.
10.05 NOTICES. All notices and other communications hereunder may be
made by mail, hand-delivery or by courier service and notice shall be deemed
to have been given when received; provided, however, if notices and other
communications are made by nationally recognized overnight courier service
for overnight delivery, such notice shall be deemed to have been given one
business day after being forwarded to such a nationally recognized overnight
courier service for overnight delivery.
-71-
IF TO SELLER:
Central Bank
▇▇▇ ▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, President
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, President
WITH COPIES TO:
First Commerce Corporation
▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Chief Administrative Officer
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III, Esq.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, L.L.P.
▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
IF TO BUYER:
IberiaBank
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President and Chief Executive
Officer
WITH A COPY TO:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Elias, Matz, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
or such other person or address as any such party may designate by notice
to the other parties, and shall be deemed to have been given as of the date
received.
-72-
10.06 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. Representations, warranties,
and covenants of SELLER contained herein shall be deemed made by the
appropriate respective banking association which is the owner of the
respective asset or obligor of the respective liability related thereto and
shall not be deemed made by or on behalf of any banking association for any
other banking association. 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 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.
10.07 HEADINGS. The headings, table of contents, and index to defined
terms (if any) 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.
10.08 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 such
Schedule):
(a) 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.
-73-
(b) 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.
(c) The term "Permitted Exceptions" shall mean, with respect to the
Owned Real Estate and the Leased Real Estate, (i) those standard
exceptions appearing as SCHEDULE B items in a standard ALTA
owners or leasehold title insurance policy (other than for
matters revealed by a current survey), and any other exceptions,
restrictions, easements, rights of way, and encumbrances
referenced in the Title Commitment delivered by SELLER to BUYER
as indicated in Section 2.01(c) of this Agreement; (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 approved by BUYER in writing.
(d) The term "person" shall mean any individual, corporation
partnership, limited liability company, association, trust, or
other entity, whether business, personal, or otherwise.
(e) 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.
-74-
(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.
10.09 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 Louisiana and the laws
of the United States, as well as regulations issued by relevant agencies
thereof.
-75-
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.
10.15 GOOD FAITH DEPOSIT. BUYER and SELLER acknowledge the deposit by
BUYER of the sum of $75,000.00 for each Office which is the subject of this
Agreement (in aggregate, the "Deposit" herein). BUYER agrees that SELLER
may retain the Deposit in the event that BUYER fails to consummate the
transactions contemplated herein by the date set forth in Section 9.02(d)
herein through no material fault of SELLER, in the event that SELLER elects
to terminate the transactions contemplated by this Agreement pursuant to the
provisions of Section 9.02 herein, and/or in the event of a breach by BUYER
of any of its duties and obligations hereunder. Any such retention shall not
be deemed to constitute liquidated damages or a waiver by SELLER of any
rights in law or in equity arising out of a breach by BUYER of the terms and
conditions of this Agreement. Subject to the foregoing, the Deposit shall be
credited to the account of BUYER upon the Closing of the transactions
contemplated hereunder in accordance with the terms hereof.
10.16 SPECIFIC PERFORMANCE. The parties hereto acknowledge that
monetary damages could not adequately compensate either party hereto in the
event of a breach of this Agreement by the other, that the non-breaching
party would suffer irreparable harm in the event of such breach and that the
non-breaching party shall have, in addition to any other rights or remedies
it may have at law or in equity, specific performance and injunctive relief
as a remedy for the enforcement hereof.
10.17 CONSENT OF FIRST COMMERCE CORPORATION. First Commerce
Corporation, the sole owner of BUYER, intervenes in this
Agreement to evidence its consent to the provisions hereof.
-76-
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.
FIRST COMMERCE CORPORATION
ATTEST:
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------- ---------------------------
Its:
--------------------------
CENTRAL BANK
ATTEST:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------- ---------------------------
Its: Executive Vice President
--------------------------
ATTEST: IBERIABANK
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------- By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Its: President and CEO
--------------------------
-77-