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UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT OF SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
November 5, 1999
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Date of Report (Date of earliest event reported)
ACCESS ANYTIME BANCORP, INC.
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(Exact name of registrant as specified in its charter)
Delaware 0-28894 85-0444597
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(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No)
801 Pile Street
Clovis, New Mexico 88101
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(Address of principal Executive offices)
(505) 762-4417
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(Registrant's telephone number, including area code)
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(Former name or former address, if changed since last report)
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ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS
The Company is the unitary thrift holding company of FirstBank, a
federal savings bank headquartered in Clovis, New Mexico. FirstBank entered
into a Branch Purchase and Deposit Assumption Agreement, dated June 18, 1999,
with the Bank of Albuquerque, National Association, under which FirstBank
would purchase certain of the assets and assume all of the deposit
liabilities of the Bank of Albuquerque's branch facilities located in Clovis
and Gallup, New Mexico. That transaction was approved by the Office of Thrift
Supervision on September 2, 1999, and consummated on November 5, 1999.
Pursuant to the transaction, FirstBank assumed approximately $23.7 million in
deposits and also assumed the obligations under the related leases. FirstBank
acquired approximately $2.3 million in loans; $111,000 in leasehold
improvements and furniture, fixtures and equipment; and the cash on hand at
the branch locations.
In consideration of the assumption of deposits and other
liabilities, Bank of Albuquerque made a cash transfer to Firstbank on the
closing date of approximately $19.3 million, representing the following: the
total amount of liabilities assumed, plus a holdback amount of $250,000 to be
held in escrow to cover possible losses on transferred loans, less the sum on
the closing date of (i) the value of vault cash at the branches, (ii) the
unpaid balance of the transferred loans, (iii) certain proration items, and
(iv) a net deposit premium of $2,153,650.
In connection with the transaction, Bank of Albuquerque has agreed,
for a period of two years after the closing, that neither Bank of Albuquerque
nor any of its subsidiaries, affiliates, successors or assigns will enter
into any agreement to acquire, lease, purchase, own, operate or use any
building or other facility within a 25 miles radius of the location of either
of the branches for the purpose of accepting deposits, cashing checks, making
loans or conducting general banking business; provided, however, that such
provision shall not apply to Automatic Teller
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Machines. In addition, Bank of Albuquerque has agreed that it will not, for a
period of 36 months after the closing date, directly or indirectly, attempt
to cause any customer or depositor currently doing business with one of the
branches to withdraw its banking affiliation from such branch or cause any
person now or hereafter employed at any branch to terminate such employment.
There are no material relationships between the Bank of Albuquerque
and the Company or any of its affiliates, any director or officer of the
Company, or any associate of any such director or officer.
FirstBank operates two branches in Clovis at present. It has closed
the Clovis facility acquired from Bank of Albuquerque and transferred the
customers to the existing Clovis main office of FirstBank.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
<TABLE>
<CAPTION>
(a) EXHIBITS.
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<S> <C>
Exhibit (2) - Branch Purchase and Deposit Assumption
Agreement dated June 18, 1999 between Bank of
Albuquerque, National Association, and FirstBank, a
federal savings bank.
(2)(a) Letter amendment, dated September 30, 1999, to Branch
Purchase and Deposit Assumption Agreement dated June
18, 1999 between Bank of Albuquerque, National
Association, and FirstBank, a federal savings bank.
</TABLE>
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
ACCESS ANYTIME BANCORP, INC.
DATE: November 19, 1999
By: /s/ KEN HUEY, JR.
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Ken Huey, Jr. - President
Chief Financial Officer and Director
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EXHIBIT 2
BRANCH PURCHASE AND DEPOSIT ASSUMPTION AGREEMENT
THIS BRANCH PURCHASE AND DEPOSIT ASSUMPTION AGREEMENT (the
"Agreement") is made and entered into as of this 18th day of June, 1999 (the
"Agreement Date"), among the following parties (the "Parties"):
i) Bank of Albuquerque, National Association (the "Seller");
ii) FirstBank, a federal savings bank organized under the laws of
the United States of America ("FirstBank" or "Purchaser").
W I T N E S S E T H:
WHEREAS, Purchaser desires to purchase certain of the assets and to
assume all of the deposit liabilities of Seller's branch office facilities
located in Clovis and Gallup, New Mexico and Seller desires to sell such assets
and to have such deposit liabilities assumed;
NOW, THEREFORE, in consideration of the mutual promises and
conditions herein set forth, the parties hereto agree as follows:
Section 1. DEFINITIONS. For the purpose of this Agreement, the terms
defined in this Section 1 shall have the meanings assigned to them herein:
"Adjustment Date" means the fifth Business Day after the end of the
first full calendar month following the Closing Date.
"Transferred Loan" shall have the meaning set forth in Section 2.05.
"Branch" or "Branches" means (as the context requires) 1) the Branch
Premises, 2) Seller's core banking activities and the assets specifically
described in this Agreement arising from, accounted for on the books of, or
relating most directly to, the Branch Premises as distinguished from the
operation of Seller's other locations (whether or not related documents are
maintained or accounting entries are made at the Branch Premises), or 3) both
of the foregoing.
"Branch Premises" means (collectively or individually, as the
context requires) 1) Seller's full-service banking facility located in leased
facilities at 300 Main Street, Clovis, Curry County, New Mexico 88101 and the
lessees' interest in the leased facilities more particularly described in
Schedule 6.06 , 2) Seller's full-service facility located in leased
facilities at 101 West Hill Street, Gallup, McKinley County, New Mexico 87301
and the lessees' interest in the leased facilities more particularly
described in 6.06, and 3) Seller's Automated Teller Machine located in leased
facilities at the Safeway Grocery Store, 701 North Highway 66, Gallup,
McKinley County, New Mexico 87301.
"Business Day" means any day excluding Saturday, Sunday and any
day which is a legal holiday under the laws of the State of New Mexico, or is
a day on which banking institutions located in New Mexico are authorized or
required by law or other governmental action to close.
"Deposit" or "Deposits" shall have the meaning set forth in
Section 3(1) of the Federal Deposit Insurance Act, 12 U.S.C. Section 1813(1),
including, without limitation, all uncollected items included in the
depositors' balances and credited on the books of the Bank at the
Determination Date, as further defined in Section 3.01.
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"Determination Date" means the Seller's close of business on the
last Business Day preceding the Closing Date. (The daily statement of
Seller's Branches reflecting the amounts of various assets and liabilities as
of the close of business on the Determination Date on a full accrual basis
shall determine with respect to certain items the exact balance being
transferred to Purchaser, as more specifically set out below.)
"Equipment" means all equipment included in the books and records
of Seller and relating to the operation of the Branches, described on
Schedule 6.06.
"Fixtures" means those improvements, additions, alterations and
installations constituting all or a part of the Branch Premises on and after
the Agreement Date including specifically the three automated teller machines
presently in use at or in connection with the Branches, described on Schedule
6.06.
"Furniture" means all furniture included in the books and records
of the Seller and relating to the operation of the Branch Premises, on and
after the Agreement Date, including, without limitation, artwork, carpeting,
furniture, shelving, and office supplies (other than office supplies with
Seller's name or trademark.) described on Schedule 6.06.
"Leases" means the lessee's interest in the leases and the
leasehold improvements described in Schedule 6.06.
"Loans" means all of the loans included in the books and records
of Seller which were originated by the Branches. Specifically excluded from
this definition are all loans which are wholly charged-off on Seller's books.
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Section 2. PURCHASE AND SALE OF ASSETS.
2.01 ASSETS TO BE PURCHASED: PURCHASE PRICE. Subject to
the terms and conditions provided herein, Seller agrees to sell to Purchaser
at the Closing, and Purchaser agrees to purchase, the Leases, Furniture,
Fixtures, and Equipment, Cash on Hand at the Branches, and Transferred Loans
(collectively, the "Assets") as they exist on the Closing Date. The total
purchase price for the Assets, subject to adjustment on the Determination
Date in accordance with Section 2.02, shall be as follows ("Purchase Price"):
ASSETS PURCHASE PRICE
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Leasehold Improvements $111,050, as set forth on
and Furniture, Fixtures Schedule 6.06
and Equipment
Transferred Loans Unpaid principal balance on the
Determination Date of
Transferred Loans purchased
(i) plus accrued and unpaid
interest through Determination
Date, but net of unearned
income and (ii) less the
Holdback set forth in Section
2.03
Cash on Hand Face amount
Purchase Premium Determined pursuant to Section 2.02
2.02 CALCULATION OF PURCHASE PREMIUM. The Purchase
Premium shall be determined by multiplying $2,547,000.00 times a fraction
the numerator of which is the average of the daily total Deposits at the
Branches during the twenty (20) calendar day period immediately preceding the
Determination Date and the denominator of which is $26,868,947.00, less
$111,050 for the purchase of Furniture, Fixtures and Equipment and leasehold
improvements as set forth on Schedule 6.06.
2.03 HOLDBACK. An amount equal to $250,000 shall be held
back and retained by the Purchaser in an interest bearing escrow account
maintained at the Purchaser (the "Holdback") to cover any losses incurred as a
result of the Purchaser charging off any of the Transferred Loans, as defined
below in Section 2.05 during a twelve (12) month period beginning on the
Closing Date, provided such charge offs are made in accordance with
Purchaser's past usual and customary policies and procedures. Before the
Purchaser can charge the Holdback for any charged off Transferred Loan, the
Purchaser must give the Seller written notice of the charged off Transferred
Loan and the Seller shall have the right to repurchase the charged off
Transferred Loan at the net book value of the Transferred Loan on the Closing
Date less all payments of principal received by Purchaser after the Closing
Date within ten (10) business days of the Purchaser's written notice. If the
Seller does not repurchase the charged off Transferred Loan, the Purchaser
shall be authorized hereby to deduct the amount of the charge off from the
Holdback. After the expiration of the twelve (12) month period after the
Closing Date, the Purchaser shall send the balance of the Holdback plus the
interest thereon by wire transfer to the Seller.
2.04 ALLOCATION OF PURCHASE PRICE. The Purchase Price
shall be allocated to the Assets based upon the schedule set forth above.
Purchaser and Seller shall jointly participate in preparing Internal Revenue
Service Form 8594 ("Asset Acquisition Statement under Section 1060") to be
filed by Purchaser to reflect this allocation.
2.05 ACQUISITION OF LOANS. Purchaser has had the
opportunity to make an extensive examination of the credit files containing
documentation with respect to all of the
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Loans. At least ten (10) Business Days prior to the Determination Date the
Seller shall provide to the Purchaser a written list of all Loans and the
Purchaser shall mark on the list of Loans all Loans which the Purchaser
desires to exclude from the purchase on the Closing Date. All Loans appearing
on such written list except those marked off by the Purchaser are herein
called the "Transferred Loans".
Section 3. ASSUMPTION OF LIABILITIES: NO ASSUMPTION OF OTHER
LIABILITIES.
3.01 DEPOSIT LIABILITIES. Seller agrees to assign to
Purchaser, and Purchaser agrees to assume on the Closing Date all obligations
and liabilities of Seller to be performed, satisfied, and discharged on and
after the Closing Date with respect to Deposits carried on the books of the
Branches and existing at the Determination Date and owed to the persons,
corporations and other entities (including Deposits held by Individual
Retirement Accounts) named as the respective depositors in the books of the
Branches at the Determination Date, including, without limitation, (a) all
demand deposits, but excluding outstanding cashier's checks and other
official checks of Seller, and (b) all time and savings deposits, including
accrued and unpaid interest thereon computed through the Determination Date
(collectively, the "Deposits"). Seller also agrees to transfer to Purchaser
all signature cards, deposit contracts, canceled checks and other records
required to be retained related to the Deposits in the possession of Seller
or which Seller is able to obtain, using its best efforts, from Bank of
America National Bank and Trust Company.
3.02 PAYMENT OF CHECKS, DRAFTS AND ORDERS. Purchaser
agrees to pay all properly payable checks, drafts and withdrawal orders
presented to it by mail, over its counters, or through clearing houses by
depositors whose accounts are carried on the books of the Branch, whether
drawn on the check or draft forms provided by Seller or by Purchaser, to the
extent that the assumed balances of Deposits to the credit of the respective
makers or drawers shall be sufficient to permit the payment thereof, and in
all other respects to discharge, in the usual course of the banking business,
the duties and obligations of Seller with respect to the balances due and
owing with respect to the Deposits.
3.03 INTEREST ON ACCOUNTS ASSUMED. Purchaser agrees to
pay interest on all interest bearing Deposits assumed by it in accordance
with the terms thereof at the declared rate established by Seller, subject to
the individual contracts relating to such Deposits and Purchaser's right to
change applicable interest rates as permitted or required by law.
3.04 ASSUMPTION OF LEASES. Purchaser shall assume and
fully discharge as they become due all liabilities arising after the Closing
under the Leases.
3.05 NO OTHER LIABILITIES ASSUMED. Purchaser shall not
assume any liabilities of Seller, of any kind or description, known or
unknown, disclosed or undisclosed, except for the liabilities described in
this Agreement.
Section 4. TAXES. PRO-RATIONS AND REIMBURSEMENTS.
4.01 SALES TAXES. To the extent required by law,
Purchaser shall pay and remit all sales or use taxes which become due and
payable by reason of the consummation of the transaction contemplated hereby.
4.02 AD VALOREM TAXES. Ad valorem taxes and personal
property taxes accruing or assessed with respect to the Assets for the
calendar year which includes the Closing Date shall be pro-rated between
Purchaser and Seller as of the Closing Date. If the amount of such taxes
cannot be ascertained at Closing, such pro-ration shall be done on the basis
of taxes assessed for calendar year 1998.
4.03 UTILITIES. The net actual payment necessary to
pro-rate utility bills (including without limitation monthly statements for
electricity, natural gas, water, sewer, trash
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collection and telephone) shall be made by Purchaser or Seller, as
applicable, on the Adjustment Date, but with the proration calculated as of
the Closing Date.
4.04 CONTRACTS. All equipment, maintenance, supplies
and material, and service agreements relating to the Branches ("Contracts")
are listed on Schedule 6.07. On the Adjustment Date, Purchaser and Seller
shall pro-rate as of the Closing Date the prepaid or partially prepaid
payments under the Contracts. Seller shall assign to Purchaser, as of the
Closing Date, all of Seller's rights under the Contracts and Purchaser shall
indemnify and defend Seller against, and hold Seller harmless from, all
liabilities arising under the Contracts after Closing and which related
specifically to the Branches except for any pro-rated portion of a payment
owed by Seller through the Closing Date.
4.05 LEASES. All payments under Leases shall be prorated
as of Closing Date.
4.06 EMPLOYEES.
(a) Following the Closing Date, Purchaser shall
offer employment at the Branches to all employees of Seller employed at the
Branches at base wages and salaries no less favorable than the wages and
salaries currently being paid by Seller to such employees. To the extent
consistent with Purchaser's existing structure for comparable positions and
comparable officer titles and its current policies regarding officer titles,
such employees shall be offered positions with respon sibilities and officer
titles comparable to those they currently have with Seller. All such
employees accepting employment with Purchaser are hereafter called the
"Continuing Employees". Purchaser shall cause all Continuing Employees to
have the same benefits provided by Purchaser generally to employees of
Purchaser. Continuing Employees shall be credited for their actual and
credited service with Seller for purposes of eligibility, vesting and benefit
accrual for all Purchaser's benefit plans; provided, however, Continuing
Employees shall not be credited with prior service in any defined benefit
plan which Purchaser may have.
(b) Seller agrees that it shall render
Purchaser every assistance in soliciting certain of its employees of the
Branches to accept employment with Purchaser, including but not limited to
permitting Purchaser to immediately contact and solicit such employees.
Purchaser acknowledges that Seller has made no assurances to Purchaser with
respect to such employees' accepting positions with Purchaser and incurs no
liability to Purchaser in rendering the assistance referred to herein.
(c) Purchaser shall have no liability to any of
Seller's current employees for any accrued wages, sick leave, vacation time,
pension obligations or any other employee benefits. Purchaser will have no
liability and will not assume obligations under any "employee benefit plan"
(as such term is defined in the Employee Retirement Security Act of 1974, as
amended) of Seller or any other obligations (including, without limitation,
severance obligations) of Seller to the employees of the Branches. Seller
will be responsible for fulfilling, and resolving any disputes concerning,
its liabilities or obligations (including, without limitation, severance
obligations) to the employees at the Branches under any such employee benefit
plan or otherwise. All wages and salaries, workers' compensation payments,
vacation pay and social security and unemployment taxes of employees of the
Branches shall be paid by Seller for the period to and including the
Determination Date. The obligation of Seller pursuant to this Section shall
survive the Closing.
Section 5. CLOSING.
5.01 DATE OF CLOSING. The closing of the transactions
contemplated hereby (the "Closing") shall take place at a mutually agreed
time and place on a Business Day within 30 days following the satisfaction
(or waiver, when appropriate) of all conditions, including the receipt of all
required regulatory approvals for the transactions provided for herein, and
the expiration of any statutory waiting periods applicable thereto. The date
of Closing is referred to herein as the
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"Closing Date". The effective time of the Closing for the purpose of final
calculation of balances of Assets transferred, liabilities assumed, and
Deposits and accrued interest thereon shall be as of Seller's normal close of
business on the Determination Date. Purchaser shall take possession of the
Branch Premises and shall open branch offices at the Branch Premises
effective at the normal opening of business on the Closing Date
notwithstanding the fact that the Closing may not be concluded until later
that day. Provided that the Closing is in fact consummated on the Closing
Date, all banking transactions occurring (deposits, withdrawals, receipt of
loan payments, accrual of interest, etc.) with respect to any Assets
purchased or Deposits assumed shall be treated (as between Purchaser and
Seller) as having occurred subsequently to the Closing and shall become part
of the operations of the Purchaser.
5.02 ACTIONS OF SELLER AT CLOSING. At Closing, Seller
shall:
(a) Execute and deliver to Purchaser in
recordable form an assignment of the Leases without any representation or
warranty except as against persons or entities claiming by, through, or under
Seller, together with any required consents;
(b) Execute and deliver to Purchaser such bills
of sale, endorsements, assignments and other instruments of transfer as
reasonably required or desirable in order to evidence ownership of the Assets
in Purchaser, together with any required consents;
(c) Deliver to Purchaser all files, documents,
papers, agreements and other records pertaining to the Assets transferred
and the liabilities assumed;
(d) Deliver the Cash on Hand to Purchaser;
(e) Deliver physical possession of the Branch
Premises to Purchaser; including delivery of keys, security codes, etc.
(f) Pay to Purchaser by wire transfer in same
day funds a sum of money equal to the amount of (i) the Deposits assumed by
Purchaser pursuant to Section 3 (including interest accrued through the
Determination Date) less (ii) the Purchase Price, adjusted for prorations
pursuant to Section 4.
5.03 ACTIONS OF PURCHASER AT CLOSING. At Closing,
Purchaser shall execute and deliver to Seller an undertaking (in form and
content approved by counsel to Seller provided such approval is not
unreasonably withheld, delayed or denied) pursuant to which Purchaser assumes
and agrees to pay and discharge in due course the Deposits being assumed and
to assume, pay, discharge, perform and fulfill all obligations under the
Leases and Contracts from and after the Closing Date as herein provided.
5.04 ADJUSTMENT DATE. The payment which is required to
be made on the Closing Date shall be made pursuant to a preliminary
settlement statement agreed to by the parties. On the Adjustment Date, Seller
and Purchaser shall make an adjusting settlement between each other as of the
Determination Date with regard to pro-rations provided in this Agreement and
with regard to any errors, omissions or miscalculations with regard to
amounts paid by either party on the Closing Date or subsequently;
notwithstanding the foregoing, Purchaser and Seller shall make settlement
with each other as often as each Business Day, if necessary, in order to
reimburse the other party for cashier's checks or customer checks presented
to and paid by one party but required to be paid by the other party pursuant
to this Agreement.
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Section 6. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller
represents and warrants to Purchaser as follows:
6.01 ORGANIZATION OF SELLER. Seller is a national banking
association duly organized, validly existing and in good standing under the
laws of the United States and has all requisite corporate power and authority
and possesses all governmental and other permits, licenses, approvals and
other authorizations to own or lease its properties and to carry on its
business as now being conducted.
6.02 AUTHORITY; BINDING EFFECT. Seller has full right
and authority to enter into this Agreement and to perform its obligations
hereunder. The execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby have been duly and validly authorized
by the Board of Directors of Seller and no other separate acts or proceedings
on the part of Seller are necessary to authorize this Agreement or the
transaction contemplated hereby; and this Agreement constitutes the valid and
legally binding obligation of Seller. The execution and delivery of this
Agreement, the consummation of the transactions contemplated hereby and the
compliance by Seller with any of the provisions hereof will not conflict
with, result in a breach of, or entitle any party to terminate or call a
default with respect to any contract or instrument to which the Seller and
the Assets or liabilities are subject.
6.03 FINANCIAL RECORDS. All books and records of the
Branches have been, (and will be as of the Closing Date) kept in accordance
with generally accepted accounting principles and in accordance with all
applicable record retention periods under federal or state law in all
material respects and the financial records of the Seller as furnished to
Purchaser present fairly the financial position of the Branches.
6.04 LIABILITIES AND OBLIGATIONS. At the Agreement
Date, the Branches had no obligation or liability, whether accrued, absolute,
contingent or otherwise, which was material to the financial condition,
business or obligations of the Branches or which when combined with all
similar obligations or liabilities, would have been material, which has not
been reflected in the Branches' financial records, or in the schedules
referred to herein, nor does there exist a set of circumstances resulting
from transactions effected or events occurring with respect to the Assets on
or prior to the Agreement Date, or from any action omitted to be taken during
such period which, to the knowledge of Seller, could reasonably be expected
to result in any such material obligation or liability, except as disclosed
in the financial records or in the schedules referred to herein. Since the
Agreement Date, the Branches have not incurred or paid any obligation or
liability relating to the Assets, except in connection with current
transactions in the ordinary course of business.
6.05 EVIDENCE OF INDEBTEDNESS. Each note or other
instrument evidencing a Transferred Loan and any related security agreement
or instruments (including without limitation a guaranty or similar
instrument) is a legal, valid and binding obligation of the obligator named
therein, enforceable in accordance with its terms (subject, as to enforcement
of remedies, to applicable bankruptcy, insolvency, reorganization, moratorium
and similar laws from time to time in effect), has not been participated out
to another lender, and all actions necessary to perfect any related security
interest have been taken. To the best knowledge of Seller, no Transferred
Loan is subject to any defense, offset or counterclaim known to Seller.
Should any valid offset or defense (including, but not limited to usury)
based on any action of Seller occurring prior to the Closing Date be proved
in a court of law or in an arbitration, Seller shall indemnify and hold
Purchaser harmless therefrom.
6.06 PHYSICAL PROPERTIES. Schedule 6.06, to be
delivered by Seller to Purchaser within ten (10) calendar days following the
execution of this Agreement,
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provides an itemized list of all items of Furniture, Fixtures, Equipment and
other Assets owned by Seller and located at the Branches as of the Agreement
Date, except those items, if any, of Furniture and Equipment listed in
Schedule 6.06 which are not being acquired by Purchaser. Schedule 6.06 shall
have attached to it true copies of the Leases. Except as noted on Schedule
6.06 Seller owns each such item of Furniture, Fixtures, Equipment and the
leasehold improvements, free and clear of all liens, pledges, security
interests, charges, burdens, encumbrances, options and adverse claims. The
operation of the property and business of Seller at the Branches in the
manner in which they were previously operated or are now operated does not,
to the knowledge of Seller, violate any environmental laws, zoning ordinances
or municipal regulations in such a way as could, if such laws, ordinances or
regulations were enforced, result in any material impairment of the use of
the Branches for the purposes for which they are now operated.
6.07 AGREEMENTS, CONTRACTS AND COMMITMENTS. Schedule
6.07 to this Agreement lists specifically all Contracts to which Seller is a
party or by which Seller or any of the Assets is in any way affected or
bound. All such Contracts are legally valid and binding and in full force and
effect, and neither Seller nor, to the knowledge of Seller, any other party
is in default thereunder. None of the rights of Seller thereunder will be
impaired by the consummation of the transactions contemplated hereby.
6.08 TAXES.
(a) There are no tax liabilities of Seller that
could become payable by Purchaser as a result of the fact that Purchaser will
be the transferee of the Assets (except only ad valorem taxes and personal
property taxes which are not yet due and payable, and which are to be
prorated pursuant to subsection 4.02). Seller hereby agrees to indemnify
Purchaser and hold Purchaser harmless from any tax liabilities of Seller that
may become payable by Purchaser because of the transfer of the Assets (except
pursuant to subsection 4.02).
(b) With respect to all interest bearing
accounts assigned to Purchaser, the records of Seller transferred to
Purchaser contain or will contain all information and documents (including
without limitation properly completed Forms W-9) necessary to comply in all
material respects with all information reporting and tax withholding
requirements under federal and state laws, rules and regulations, and such
records identify with specificity all accounts subject to backup withholding
under the Internal Revenue Code.
(c) 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 operation of the Branches on or prior
to the Closing Date shall be paid in full or Seller shall have made
appropriate provision for such payment in accordance with ordinary business
practices.
6.09 COMPLIANCE WITH LAWS. Seller is not in violation
of any law, statute, rule, governmental regulation or order, or court decree
or judgment which violation might have a material adverse effect on the
Assets.
6.10 LITIGATION OR OTHER PROCEEDINGS. There is no suit,
action or legal, administrative, arbitration or other proceeding or
governmental investigation pending, or to the knowledge of Seller threatened,
which might have a material and adverse financial effect on Seller, the
Assets, the liabilities assumed or the business and operations of the
Branches.
6.11 INCHOATE CLAIMS. Seller has no notice or knowledge
of any agreement, claim or controversy, relating to Seller either directly or
indirectly, which
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might result in a suit, action, proceeding or other formal procedure against
Seller relating to the Assets, the liabilities assumed, or the business and
operations of the Branches, nor knowledge of any circumstances which might
give rise to such claim or controversy other than in the normal course of
banking business.
6.12 BROKER'S OR FINDER'S FEE. All negotiations relative
to the transactions contemplated hereby have been carried on by Seller
directly with Purchaser and without the intervention on behalf of Seller of
any other person in such manner as to give rise to any valid claim against
any of the parties hereto for a finder's fee, brokerage commission or other
similar payment.
6.13 INSURANCE. Seller has in full force and effect
policies or insurance and fidelity bonds of type and in amounts that are
customary in the banking industry for an institution of comparable size and
Seller will continue all of such insurance and bonds in full force and effect
and will give all notices and present all claims thereunder in due and timely
fashion up and to the Closing Date.
6.14 ACCIDENTS AND CLAIMS. There have been no accidents
or similar events relating to the Branches which have resulted, or may
result, in claims against Seller which are not either fully covered by
insurance, or by reserves, or other provisions created, or made, for such
claims.
6.15 EMPLOYMENT AGREEMENTS. Seller is not a party to (i)
any written employment, (ii) any oral or written management agreement, or
(iii) any oral employment agreement with personnel of the Branches which
cannot be terminated at the election of Seller on not more than thirty (30)
days' notice.
6.16 HAZARDOUS SUBSTANCES. The Branches and the use and
operation of the Branches are in compliance with all federal, state or local
laws, ordinances or regulations relating to industrial hygiene or to the
environmental conditions on, under or about the Branches including without
limitation air, soil, surface water and groundwater conditions. To the best
knowledge of Seller, there are no environmental, health or safety conditions
on, under or about the Branches, including without limitation the air, soil,
surface water and groundwater that would materially interfere with the
conduct of the business of the Branches or materially adversely affect the
Branches, the Assets, or the assumed liabilities. To the best of the
knowledge of Seller, neither Seller nor any third party, including, without
limitation, Seller's predecessors in title to the Branches, have used or
installed any underground tanks or gas or oil wells, or used, generated,
manufactured, treated, stored, placed, deposited, discharged, released or
disposed of on, under or about the Branches or transported to or from the
Branches any Hazardous Substances (as defined below). The Branches have never
been used as a dump or landfill site, there are no asbestos-containing
materials in the Branches or incorporated into the improvements, there are
and have been no polychlorinated biphenyl ("PCB")-containing electrical
transformer flourescent light fixture with ballasts or other PCB Item, as
defined at 40 C.F.R. Section 761.3 or any PCB-containing fluid on the
Branches, nor to the best knowledge of the Seller are there or have there
ever been any investigations, notices of violations, requests for information
or claims of any kind asserted or threatened to be asserted by any person,
including any federal, state or local governmental agency relating to the
storage, disposal, discharge or release of any Hazardous Substances. For
purposes of this Agreement, "Hazardous Substances" shall mean any flammable,
explosive, radioactive material, hazardous waste, toxic substance or related
material and any other substance or material defined or designated as a
hazardous or toxic substance, material or waste by any federal, state or
local law or environmental statute, regulation or ordinance presently in
effect and shall include, without limitation, (i) those substances included
within the definition of "hazardous substances," "hazardous materials," "toxic
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substances" or "solid waste" in the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C.
Sections 9601, ET SEQ., the Resource Conservation and Recovery Act of 1976,
42 U.S.C. Sections 6901 ET SEQ., the Toxic Substances Control Act, 15 U.S.C.
Sections 2601 ET SEQ., and the Hazardous Materials Transportation Act, 49
U.S.C. Sections 1801 ET SEQ., and in the regulations promulgated pursuant to
said laws; (ii) those substances listed in the United States Department of
Transportation Table (49 C.F.R. 172.101 and amendments thereto) or by the
Environmental Protection Agency (or any successor agency) as hazardous
substances (40 C.F.R. Part 302 and amendments thereto); (iii) such other
substances, materials and wastes which are regulated under applicable local,
state or federal law, or the United States government, or which are
classified as hazardous or toxic under federal, state or local laws or
regulations; and (iv) any material, waste or substance which is or contains
(i) petroleum, (ii) asbestos or (iii) PCB, or which is designated as a
"hazardous substance" pursuant to Section 311 of the Clean Water Act, 33
U.S.C. Sections 1251 ET SEQ. (33 U.S.C. Section 1321) or listed pursuant to
Section 307 of the Clean Water Act (33 U.S.C. Section 1317).
6.17 DEPOSITS. Attached hereto as Schedule 6.17 is a true
and accurate schedule of all Deposits (including IRAs), and related
information, which are domiciled at the Branches, prepared as of a date
within 10 calendar days of the Agreement Date (which Schedule shall be
updated at and as of the Determination Date and, as updated, shall be true
and accurate as of such date). The Deposits are insured by the Bank Insurance
Fund of the Federal Deposit Insurance Corporation ("FDIC") to applicable
legal limits. To the best knowledge of the Seller, the Deposits were
solicited and currently exist in material compliance with all applicable
requirements of federal, state and local laws and regulations promulgated
thereunder (for purposes of this clause, a Deposit would not be in material
compliance if the non-compliance subjects the depository institution to any
penalty or liability).
6.18 BRANCH LEASES.
(a) The Leases are valid, binding and
enforceable in accordance with their terms subject as to enforcement to
bankruptcy, insolvency, reorganization, moratorium, laws governing fraudulent
conveyance or equitable subordination principles and other laws of general
applicability relating to or affecting creditors' rights generally and to
general principles of equity. Neither Seller nor the lessors under the Leases
is in default under, and no event has occurred which, with notice or the
lapse of time or both would constitute a default under the Leases. Seller has
not previously been given notice of any event of default, or event or
condition which with the giving of notice or the lapse of time, or both,
would constitute a default under the Leases. Seller has delivered a true and
correct copy of the Leases to Purchaser. The Leases are the only agreements
between the Seller and the respective landlords thereunder relating to the
Branch Premises. The respective Leases represent the entire agreement between
the respective landlords thereunder and the Seller with respect to the
Branches. All payments of rent or other monies required to be paid by Seller
pursuant to the Leases have been paid. The terms of the Leases permit the
premises subject to the Leases to be used as an office of a federal savings
bank.
(b) Seller is not entitled to, and has made no
agreements with the landlords under the Leases, or landlords' agents,
employees or representatives, concerning free rent, or other type of rental
concession including, without limitation, lease support payments or lease
buyouts.
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6.19 CLOSING DATE. Each representation, warranty,
covenant and agreement of Seller set forth in this Agreement shall be deemed
to be made on and as of the date hereof and as of the Closing Date.
6.20 REPRESENTATION NOT MISLEADING. No representation or
warranty by the Seller contained in this Agreement, nor in any statement,
exhibit or schedule furnished to the Purchaser by the Seller under and
pursuant to, or in anticipation of or in connection with, this Agreement
contains or will contain on the Closing Date any untrue statement of a
material fact or omits or will omit to state a material fact necessary to
make the statements contained herein or therein, in light of the
circumstances under which it was or will be made, not misleading.
6.21 YEAR 2000. With regard to all of the Assets,
Deposits, and other liabilities purchased or assumed by Purchaser as
discussed in this Agreement, Seller is in compliance with the Interagency
Guidelines Establishing Year 2000 Standards for Safety and Soundness.
Section 7. REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser
represents and warrants to Seller as follows:
7.01 ORGANIZATION OF PURCHASER. Purchaser is a federal
savings bank, duly organized, validly existing and in good standing under the
laws of the United States of America and has all corporate power and
authority and possesses all governmental and other permits, licenses,
approvals and other authorizations to own or lease its properties and to
carry on its business as now being conducted.
7.02 AUTHORITY: BINDING EFFECT. Purchaser has full
right and authority to enter into this Agreement and, subject only to
obtaining regulatory approvals, to perform its obligations hereunder. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly and validly authorized by the
Board of Directors of Purchaser; no other corporate acts or proceedings on
the part of Purchaser are necessary to authorize this Agreement or the
transactions contemplated hereby; and, subject only to obtaining regulatory
approvals, this Agreement constitutes the valid and legally binding
obligation of Purchaser.
7.03 BROKER'S OR FINDER'S FEES. All negotiations
relative to the transactions contemplated hereby have been carried on by
Purchaser directly with Seller and without the intervention on behalf of
Purchaser of any other person in such manner as to give rise to any valid
claim against any of the parties hereto for a finder's fee, brokerage
commission or other similar payment.
Section 8. CONDUCT AND TRANSACTIONS PRIOR TO CLOSING DATE. Seller
covenants that, except as otherwise consented to in writing by Purchaser or
provided in this Agreement, between the date of this Agreement and the
Closing Date:
8.01 PRESERVATION OF THE BUSINESS OF SELLER. The business
of Seller at the Branches shall be conducted only in the ordinary course. For
purposes of this subsection, no transaction shall be considered in the
ordinary course which (i) subjects the Assets to a risk of substantial
diminution of value in the aggregate or (ii) has the effect of voluntarily
committing Seller to dispose of any material amount of the Assets of $5,000
or more.
8.02 EMPLOYEE COMPENSATION. No increase will be made in
the compensation of the employees at the Branches including, but not limited
to, normal bonus, profit sharing and other compensation, or the rate of total
compensation payable
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or to become payable by Seller to any employees at the Branches, except as
approved by Purchaser provided such approval shall not be unreasonably
withheld, delayed, or denied.
8.03 ACCESS TO THE BANK: CONFIDENTIALITY; DUE DILIGENCE;
AND TERMINATION. Seller agrees that it will afford Purchaser access to the
Branches for the purpose of conducting a due diligence investigation and
review of (i) any of the Assets (or documents establishing title thereto),
(ii) any Contracts, agreements or instruments relating to the liabilities
assumed to which Seller is a party, and (iii) such other books of account,
tax and insurance records, and other matters of business operations as
Purchaser might reasonably request; provided, however, that such due
diligence investigation shall be completed on or before June 30, 1999 (the
"Due Diligence Expiration Date"). Such investigation and review shall be
conducted in a manner that does not unreasonably interfere with the normal
operations of the Branches. Seller shall cause the personnel of the Branches
to assist Purchaser in making such investigation and shall cause the counsel,
accountants, employees and other representatives of Seller to be reasonably
available to Purchaser for such purposes. Purchaser shall hold in strict
confidence all documents and information (collectively, the "Information")
concerning Seller so obtained (to the extent that such Information is not a
matter of public record and except as may be required in Purchaser's
applications for the regulatory approvals called for hereunder) and, if the
transactions contemplated herein are not consummated, such confidence shall
be maintained and all documents returned to Seller. Purchaser further agrees
that if the transactions contemplated hereby are not consummated for any
reason, Purchaser will not use the Information in competition with Seller or
in any other way detrimental to Seller. Further, Purchaser agrees to transmit
the Information only to its representatives who need to know the Information
for the purpose of evaluating the transactions referred to above and who are
informed by the Purchaser of the confidential nature of the Information. In
the event Purchaser notifies Seller in writing on or before the Due Diligence
Expiration Date that the Purchaser has completed its due diligence
investigation, has found the Branches and the results of operations thereof
not to be substantially as heretofore represented to Purchaser, and Purchaser
terminates this Agreement, this Agreement shall be terminated and none of the
Parties shall have any further obligations hereunder except those relating to
confidentiality. Purchaser shall also have access to the Branches as provided
in Section 8.11 hereof.
8.04 RELATIONSHIP. Seller shall use its best efforts to
maintain and preserve its relationships with customers of the Branches.
8.05 PUBLIC ANNOUNCEMENTS; PURCHASER'S RIGHT TO
COMMUNICATE WITH BANK CUSTOMERS. Neither the Purchaser nor Seller shall make
any press release, public announcements, or disclosure to any person or
entity not having a need to know, including announcements to employees or
customers, concerning the transactions provided for in this Agreement without
the prior consent of the other party hereto, which consent shall not
unreasonably be withheld, delayed, or denied. Purchaser shall also have the
right to participate in preparing the text of any written communication which
the Seller may mail to its customers concerning the proposed transaction or
the assumption of their Deposits by the Purchaser.
8.06 PURCHASER'S REGULATORY APPROVALS. Purchaser, with
the cooperation of the Seller, shall promptly prepare and file appropriate
documents with the Office of Thrift Supervision, and any other regulatory
agencies whose approval or consent may be required and thereafter use its
best efforts to obtain timely the requisite, unconditional approvals for the
transactions contemplated hereby from those agencies.
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8.07 CERTAIN ACTIONS. Seller shall not take any action or
omit to take any action which would make any representation or warranty
contained in Section 6 hereof untrue in any material respect.
8.08 NO OFFERS OR NEGOTIATIONS. Neither Seller nor its
affiliates will, directly or indirectly, through any officer, director,
stockholder, agent or other person, negotiate, solicit, initiate or encourage
submission of proposals or offers from any other persons (including without
limitation any of its or their officers, directors, employees or significant
stockholders) relating to any acquisition or purchase of any portion of the
Assets or liabilities to be assumed by Purchaser, or any equity interest in
Seller or any business interest in Seller or any subsidiary which would
impair or otherwise interfere with the consummation of the transactions
contemplated hereby. Seller shall promptly cease and cause to be terminated
any current negotiations conducted with any parties other than Purchaser with
respect to the acquisition or purchase of any portion of the Assets or
liabilities to be assumed by Purchaser, or any equity interest in Seller or
any business interest in Seller or any subsidiary which would impair or
otherwise interfere with the consummation of the transactions contemplated
hereby, and shall request the immediate return of any and all information
supplied to any such party in connection therewith. Any consent heretofore
granted by Seller or its affiliates to permit persons to make any such
proposal (other than consents given to Purchaser) shall immediately be
withdrawn and no further consents, waivers or amendments shall be granted by
Sellers.
8.09 IRA ACCOUNTS. Prior to the Closing Date, Purchaser
shall designate a successor trustee or custodian, which may be Purchaser, as
to any IRA constituting a liability to be assumed by Purchaser and for which
Seller acts as trustee or custodian. Seller will transfer the trusteeship or
custodianship of all such IRAs to such successor trustee or custodian on the
Closing Date. Seller shall be responsible for all federal, state and local
income tax reporting for such accounts for the period ending on the Closing
Date, and the successor trustee or custodian shall be responsible for such
reporting thereafter.
8.10 OPERATIONAL AND DATA PROCESSING CONVERSION MATTERS.
Seller shall cooperate with Purchaser's reasonable requests in order to
accommodate any and all requirements for Purchaser to convert the operations
of the Branches from branches of Seller to branches of Purchaser, including
without limitation any requirements for the conversion of data processing to
Purchaser's systems. Seller covenants that it will assist Purchaser with
Purchaser's reasonable requests following the Closing in the event that
Purchaser is unable to complete its requirements prior thereto.
8.11 ACCESS TO BOOKS AND RECORDS. Seller shall furnish
Purchaser with such additional financial and other data and information
regarding the Assets and liabilities to be assumed as Purchaser reasonably
may request from time to time, including without limitation any information
required for inclusion in all government applications necessary to effect the
transaction contemplated hereby. Upon reasonable notice, Seller shall permit
officers and authorized representatives of Purchaser access to inspect the
Branches during normal business hours or at such other time mutually agreed
by both parties and permit Purchaser to make or cause to be made such
reasonable investigation of information and material relating to the
condition of the Branches, including, if any, general and subsidiary ledgers,
deposit records and other information concerning the business, property and
legal questions concerning the Branches as Purchaser reasonably deems
necessary or advisable.
Section 9. OBLIGATION OF PARTIES AFTER THE CLOSING. After the
Closing Date, and in addition, and not by way of limiting any of the
foregoing:
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9.01 BUSINESS RELATIONSHIPS.
(a) For a period of 36 months after the Closing
Date, Seller shall not cause, or attempt to cause or induce, directly or
indirectly, any person now or hereafter employed at the Branches to terminate
such employment; nor cause, directly or indirectly, or attempt to cause, any
customer or depositor whose name now or hereafter appears on the books and
records of the Branches to withdraw her, his or its banking affiliation from
the Branches; provided, however, the mere fact that Seller hires any person
formerly employed at the Branches or accepts banking business from a former
customer or depositor of the Branches shall not be deemed to prove Seller's
breach under this subsection 9.01.
(b) From and after the Closing, and for a
period of two years following the Closing Date, Seller and its subsidiaries,
affiliates, successors or assigns shall not, and shall not enter into any
agreement to, acquire, lease, purchase, own, operate or use any building,
office or other facility or premises located within a twenty-five (25) mile
radius of the locations of the Branches for the purpose of accepting
deposits, cashing checks, making loans or conducting general banking
business; provided, however, this provision shall not apply to ATMs.
9.02 TRANSIT ITEMS. Each party shall exercise its best
efforts to assist the other party in the adjustment and delivery of all
overages and shortages of documentary and cash items in transit and items in
collection as of the Closing Date, as the interest in such items of the
respective parties hereto may then appear.
9.03 INDEMNIFICATION.
(a) Seller agrees to and does hereby indemnify,
defend and hold Purchaser harmless from any loss, demand, obligation, cost,
expense or liability (including reasonable attorney's fees and expenses) (i)
arising out of any actions, suits or other proceedings commenced prior to, or
on or after, the Closing Date which relate to the operations at the Branches
on or prior to the Closing Date, or which arise out of any wrongful act,
omission or negligence of Seller relating to the operations of the Branches,
the Assets or the assumed liabilities on or prior to the Closing Date, or
(ii) arising out of any breach by Seller of its representations, warranties,
covenants or agreements contained herein or in any instrument, document or
certificate delivered to Purchaser pursuant hereto.
(b) Purchaser agrees to and does hereby
indemnify, defend and hold Seller harmless from any loss, demand, obligation,
costs, expense or liability (including reasonable attorney's fees and
expenses) (i) arising out of any actions, suits or other proceedings which
relate to the operations at the Branches subsequent to the Closing Date, or
which arise out of any wrongful act, omission or negligence of Purchaser
relating to the operations of the Branches, the Assets or the assumed
liabilities subsequent to the Closing Date; or (ii) arising out of any breach
by Purchaser of its representations, warranties, covenants or agreements
contained herein or in any instrument, document or certificate delivered to
Seller pursuant hereto.
9.04 TAX REPORTING. Seller and Purchaser agree that
each party shall be solely responsible for providing to the Internal Revenue
Service and to each depositor, other holder of a liability assumed or
customer, to the extent required by law, Forms 1098,1099 INT, 1099R and 5498
and other applicable reporting forms with respect to each of the liabilities
assumed and Assets transferred for the period during which Seller or
Purchaser, as applicable, administers such liabilities or Assets during 1999.
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Section 10. RISK OF LOSS. Pending the Closing, the risk of loss in
regard to the Assets shall be upon Seller. After Closing, the risk of loss in
regard to the Assets shall be on Purchaser. Each party shall procure
insurance, as appropriate, to cover such risks.
Section 11. CONDITIONS TO OBLIGATIONS OF PARTIES. The obligations
of Purchaser and Seller to consummate the transactions contemplated hereby to
be consummated shall be subject to the condition that all orders, consents
and approvals of regulatory agencies necessary in order for the transactions
provided for in this Agreement to be lawfully accomplished shall have been
obtained in form and substance satisfactory to the Purchaser.
Section 12. CONDITIONS TO OBLIGATIONS OF PURCHASER. The
obligations of Purchaser hereunder shall be subject to the satisfaction on or
prior to the Closing Date of each of the following conditions, unless
Purchaser shall have waived such condition in writing.
12.01 REPRESENTATIONS AND WARRANTIES OF SELLER. The
representations and warranties of Seller contained herein shall be true in
all material respects when made and at the Closing Date with the same force
and effect as though made at and as of such time, and Seller shall have
performed all obligations and complied with all covenants required under this
Agreement to be performed or complied with by it on or prior to the Closing
Date. Seller shall have delivered to Purchaser a certificate dated as of the
Closing Date to such effect.
12.02 LITIGATION. At the Closing Date, there shall not
be pending or threatened any litigation in any court or any proceeding before
or by any governmental department, agency or instrumentality in which it is
sought to restrain or prohibit or obtain damages in respect of the
consummation of the transactions contemplated hereby, to cause a divestment
by~Seller or Purchaser of any significant portion of their respective assets
or to impose any limitation upon the exercise by Purchaser of its general
banking powers subsequent to consummation of the transactions contemplated
hereby.
12.03 NO MATERIAL ADVERSE CHANGE. There shall not have
occurred any material adverse change from February 28, 1999, to the Closing
Date in the business of the Branches, the Assets, the Transferred Loans, the
Deposits, or the Assets; provided, however, in no event shall the resignation
of any employee (or any adverse change resulting primarily from the
resignation of an employee) be deemed a material adverse change for the
purpose of this paragraph.
12.04 LEASE AGREEMENT. The consents of the landlords
under the Leases to the assignment by Seller of the Leases to Purchaser,
shall have been obtained without the imposition of conditions Purchaser deems
unduly burdensome or unreasonable. Such consents shall be in form and
substance satisfactory to Purchaser in the exercise of its sole discretion,
and shall include the respective landlord's representation and warranty to
Purchaser that each respective Lease is a valid and binding obligation of
landlord.
Section 13. CONDITIONS TO OBLIGATIONS OF SELLER. The obligations
of Seller hereunder shall be subject to the satisfaction on or prior to the
Closing Date of the following condition, unless waived in writing by Seller:
13.01 REPRESENTATIONS AND WARRANTIES OF PURCHASER. The
representations and warranties of Purchaser hereunder shall be true in all
material respects when made and at the Closing Date with the same force and
effect as though made at and as of such time, and Purchaser shall have
performed all obligations and complied with all covenants required under this
Agreement to be performed or complied
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with by it on or prior to the Closing Date. Purchaser shall have delivered to
Seller a certificate dated as of the Closing Date to such effect.
Section 14. NOTICE TO DEPOSITORS. Seller agrees that Purchaser
may, jointly with Seller give notice to depositors of its assumption of the
Deposits at the Branches in the form of an open letter and/or such form as
may be required by law.
Section 15. TERMINATION OF AGREEMENT. This Agreement may be
terminated at any time prior to the Closing.
(a) By the consent in writing of the
Purchaser and Seller;
(b) By the Purchaser in writing if any of the
conditions precedent to the obligations of the Purchaser contained in Section
12 of this Agreement or the conditions of the obligations of the parties
contained in Section 11 of this Agreement shall not have been satisfied prior
to September 30, 1999;
(c) By the Seller in writing if any of the
conditions precedent to the obligations of the Seller contained in Section 13
of this Agreement or the conditions to the obligations of the parties
contained in Section 11 of this Agreement shall not have been satisfied prior
to September 30, 1999.
In the event of the termination of this Agreement pursuant to the provisions
of this section, this Agreement shall be of no further force and effect, and
no party hereto shall have any liability or further obligation to the other
Party to this Agreement except for the covenants regarding confidentiality
which sections shall survive any such termination and continue in full force
and effect thereafter. Notwithstanding the foregoing, in the event the
transactions contemplated by this Agreement are not consummated due to the
failure of any conditions precedent to the consummation of the transactions
resulting from a breach of a representation, warranty or obligation arising
under this Agreement by a Party, then the other Party, upon termination of
this Agreement, shall be entitled to all appropriate legal and equitable
remedies.
Section 16. MISCELLANEOUS.
16.01 EXPENSES. Whether or not the transactions
contemplated herein shall be consummated, Purchaser and Seller each shall pay
its own expenses incident to, preparing for, entering into and carrying into
effect the terms of this Agreement.
16.02 NOTICES. Any notice or communication required or
permitted to be made hereunder shall be in writing, and shall be deemed to
have been made if personally delivered in return for a receipt, or if mailed,
by registered or certified mail, return receipt requested, to the parties at
the addresses shown below. The date of personal delivery shall be the date of
giving notice or if mailed in the manner prescribed above, notice shall be
deemed to have been given three business days after the mailing.
If to Purchaser: FirstBank
Mr. Ken Huey, President
801 Pile
Clovis, NM 88101
(505) 762-4417 - Telephone
(505) 762-5775 - Facsimile
with a copy to: Mr. G. Waverly Vest, Jr.
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Bracewell & Patterson, L.L.P.
711 Louisiana Street, Suite 2900
Houston, TX 77002
(713) 221-1332 - Telephone
(713) 221-1212 - Facsimile
If to Seller: Mr. James Ulrich, Senior Vice-President,
Mergers and Acquisitions
BOK Financial Corporation
P.O. Box 2300
Tulsa, Oklahoma 74192
(918) 588-6135 - Telephone
(918) 588-6583 - Facsimile
with a copy to: Mr. Frederic Dorwart
Old City Hall
124 East Fourth Street
Tulsa, Oklahoma 74103-5010
(918) 583-9945 - Telephone
(918) 583-8251 - Facsimile
16.03 ENTIRE AGREEMENT. This Agreement sets forth the
entire understanding of the parties hereto and supersedes all prior
agreements and understandings, whether oral or written. This Agreement shall
not be modified or amended except by written agreement of all parties hereto.
16.04 BINDING EFFECT. This Agreement shall be binding
upon and inure to the benefit of each of the parties hereto, their respective
legal representatives, successors and assigns; provided, however, that no
assignment of this Agreement or any rights or obligations hereunder may be
made by any party hereto without the prior written consent of the other party
and no assignment by any party hereunder shall relieve said party of any of
its obligations or duties hereunder.
16.05 FURTHER ASSURANCES. Each of the parties hereto
agrees to execute and deliver such further agreements, assurances,
instruments and documents at any time reasonably requested by another party
as are necessary or desirable in order to consummate the transactions
contemplated by this Agreement.
16.06 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
covenants, representations and warranties contained in this Agreement shall
survive the execution and delivery hereof ; provided, however, the
representations and warranties set forth in Section 6 and Section 7 shall
survive the execution and delivery hereof only if notice of an alleged breach
is given to the allegedly breaching Party within eighteen (18) months of the
Closing.
16.07 CONSTRUCTION. This Agreement shall be construed
and interpreted in accordance with the laws of the State of New Mexico
applicable to contracts made and performed entirely therein.
16.08 SECTION HEADINGS. The section headings contained
in this Agreement are for convenience and reference only and shall not in any
way affect the meaning or interpretation of this Agreement.
16.09 COUNTERPARTS. This Agreement may be executed in
any number of identical counterparts, each of which shall be deemed an
original for all purposes, but
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all of which taken together shall form but one Agreement. This Agreement may
be executed and delivered by facsimile transmission of a counterpart
signature page hereof.
16.10 ATTORNEY FEES. In any action brought by a party
hereto to enforce the obligations of any other party hereto, the prevailing
party shall be entitled to collect from the opposing party to such action
such party's reasonable litigation costs and attorneys fees and expenses
(including court costs, reasonable fees of accountants and experts, and other
expenses incidental to the litigation).
IN WITNESS WHEREOF, the parties have caused this
Agreement to be executed by their duly authorized officers as of the day and
year first above written.
PURCHASER: FIRSTBANK
By /s/ KEN HUEY, JR.
---------------------
Ken Huey, President
Attest:
/s/ KATHY ALLENBERG , Corporate Secretary
- ----------------------------
[Seal]
SELLER: BANK OF ALBUQUERQUE, N.A.
By /s/ JAMES A. WHITE
-----------------------
James A. White, Executive Vice President
Attest:
/s/ TAMERA R. WAGMAN
-----------------------------
ASSISTANT , Secretary
----------------
[Seal]
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EXHIBIT 2(A)
November 18, 1999
Mr. James A. White VIA FACSIMILE
Executive Vice President
Bank of Albuquerque, N.A.
201 3rd Street NW
Albuquerque, NM 87102
Re: Closing and Related Issues
Dear Mr. White:
This letter follows up on a conference call on Tuesday, September 21, 1999
related to the closing of the transaction between FirstBank (the "Bank") and
Bank of Albuquerque, N.A. ("BOA") pursuant to the Branch Purchase and Deposit
Assumption Agreement dated June 18, 1999 (the "Agreement"). During the
conference call, representatives of the Bank and BOA along with their
respective counsel determined that the closing will occur on Friday, November
5, 1999. The Bank proposes that the closing take place in Clovis, New Mexico
at the Bank's main office at 801 Pile Street, Clovis, New Mexico 88101.
Please indicate your agreement to the date and place for the closing by
signing this letter below.
As a result of the choice of November 5, 1999 as the closing date and based
on the discussions and agreement during the conference call, we are required
to amend various sections of the Agreement in accordance with Section 16.03
of the Agreement:
SECTION 4.06(c). The fourth sentence is amended to read as follows:
ALL WAGES AND SALARIES, WORKERS' COMPENSATION PAYMENTS, VACATION PAY
AND SOCIAL SECURITY AND UNEMPLOYMENT TAXES OF EMPLOYEES OF THE
BRANCHES SHALL BE PAID BY SELLER FOR THE PERIOD TO AND INCLUDING THE
CLOSING DATE.
SECTION 5.01. The section is amended to read as follows:
DATE OF CLOSING. THE CLOSING OF THE TRANSACTIONS CONTEMPLATED HEREBY
(THE "CLOSING") SHALL TAKE PLACE AT A MUTUALLY AGREED TIME AND PLACE
ON A BUSINESS DAY WITHIN 60 DAYS FOLLOWING THE SATISFACTION (OR
WAIVER, WHEN APPROPRIATE) OF ALL CONDITIONS, INCLUDING THE RECEIPT
OF ALL REQUIRED REGULATORY APPROVALS FOR THE TRANSACTIONS PROVIDED
FOR HEREIN, AND THE EXPIRATION OF ANY STATUTORY WAITING PERIODS
APPLICABLE THERETO. THE DATE OF CLOSING IS REFERRED TO HEREIN AS THE
"CLOSING DATE". THE EFFECTIVE TIME OF THE CLOSING FOR THE PURPOSE OF
FINAL CALCULATION OF BALANCES OF ASSETS TRANSFERRED, LIABILITIES
ASSUMED, AND DEPOSITS AND ACCRUED INTEREST THEREON SHALL BE AS OF
SELLER'S NORMAL CLOSE OF BUSINESS ON THE CLOSING DATE.
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PURCHASER SHALL TAKE POSSESSION OF THE BRANCH PREMISES AND SHALL
OPEN BRANCH OFFICES AT THE BRANCH PREMISES EFFECTIVE AT THE NORMAL
CLOSING OF BUSINESS ON THE CLOSING DATE NOTWITHSTANDING THE FACT
THAT THE CLOSING MAY NOT BE CONCLUDED UNTIL LATER THAT DAY. PROVIDED
THAT THE CLOSING IS IN FACT CONSUMMATED ON THE CLOSING DATE, ALL
BANKING TRANSACTIONS OCCURRING (DEPOSITS, WITHDRAWALS, RECEIPT OF
LOAN PAYMENTS, ACCRUAL OF INTEREST, ETC.) WITH RESPECT TO ANY ASSETS
PURCHASED OR DEPOSITS ASSUMED SHALL BE TREATED (AS BETWEEN PURCHASER
AND SELLER) AS HAVING OCCURRED SUBSEQUENTLY TO THE CLOSING AND SHALL
BECOME PART OF THE OPERATIONS OF THE PURCHASER.
SECTION 15. Wherever the date "September 30, 1999" occurs in Section 15(b)
and (c), it shall be changed to "November 30, 1999".
Please indicate your agreement to these amendments, the date and place for
the closing by signing this letter below and forwarding a facsimile copy of
this executed letter to all the people on the carbon copy list. If you have
any questions, please do not hesitate to contact me at 505-742-7490.
Very truly yours,
FIRST BANK
/s/ Ken Huey
-------------------------
Ken Huey,
President
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AGREED AND ACKNOWLEDGED:
BANK OF ALBUQUERQUE, N.A.
By: /s/ James A. White
------------------------------
James A. White
Executive Vice President
KH/
cc: Mr. F. John Podvin, Jr.
Mr. G. Waverly Vest, Jr.
Bracewell & Patterson, L.L.P.
711 Louisiana Street, Suite 2900
Houston, TX 77002
(214) 758-8383 (facsimile)
Mr. James Ulrich
Senior Vice President
BOK Financial Corporation
P.O. Box 2300
Tulsa, OK 74192
(918) 588-6583 (facsimile)
Mr. Fredric Dorwart
Old City Hall
124 East Fourth Street
Tulsa, ok 74103-5010
(918) 583-8251 (facsimile)
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