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EX-10
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OFFICE PURCHASE AND ASSUMPTION AGREEMENT
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This Agreement ("Agreement"), made this 10th day of November, 1995, by and
among PREMIERBank & Trust, Elyria, Ohio, an Ohio banking corporation with its
principal office at 124 Middle Ave., Elyria, Ohio 44036, CoBancorp Inc., an
Ohio corporation and a registered bank holding company with its principal
office located at 124 Middle Ave., Elyria, Ohio, and the sole shareholder of
PREMIERBank & Trust (collectively hereinafter called "Premier") and Bank One,
Cleveland, National Association, a national banking association with its
principal office at 600 Superior Ave., Cleveland, Ohio 44114 (hereinafter
called "BANK ONE").
WHEREAS, Premier desires to purchase and assume from BANK ONE, and BANK ONE
desires to sell and assign to Premier certain assets and liabilities as
hereinafter described associated with offices of BANK ONE at locations set
forth in Section 1.01 herein;
NOW, THEREFORE, in consideration of the premises hereinafter set forth and
other good and valuable consideration, the sufficiency of which is hereby
acknowledged, Premier and BANK ONE hereby agree as follows:
1. PURCHASE AND ASSUMPTION.
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1.01 PURCHASE AND SALE OF ASSETS. At the Closing, as defined in
Section 6.01 hereof (the "Closing"), Premier shall purchase
and acquire and BANK ONE shall sell and assign the real estate
and other assets described in Section 1.02 hereof
(collectively, the "Assets") all of which are used in and/or
relate to business conducted by BANK ONE at its branch offices
known as and located at:
(a) 1619 Kansas Ave., Lorain, Ohio 44052 (the "Kansas"
branch)
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(b) 2808 West 21st St., Lorain, Ohio (the "Westgate"
branch)
(c) 301 West Erie Ave., Lorain, Ohio 44052 (the "West
Erie" branch)
(d) 1139 Tower Boulevard, Lorain, Ohio 44052 (including
the relevant ATM, the "Tower Boulevard" branch)
(e) 5 South Main St., Oberlin, Ohio 4407 (including the
relevant Auto Teller, the "Oberlin" branch)
(f) 107 N. Lake St., South Amherst, Ohio 44001 (the
"South Amherst" branch)
(g) State and Rosa Streets, Kipton, Ohio 44049 (the
"Kipton" branch)
(h) 216 North Main St., Wellington, Ohio 44090 (the
"Wellington" branch)
(i) 672 Oberlin Rd., Elyria, Ohio 44035 (the "Elyria-
Carlisle" branch)
(j) 220 Third St., Elyria, Ohio 44035 (the "Third Street"
branch)
(k) 515 North Abbe Rd., Elyria, Ohio 44035 (the "Abbe
Road" branch)
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
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assumption of liabilities provided for herein is sometimes
referred to herein as the "Acquisition."
1.02 TRANSFER OF ASSETS. Subject to the terms and conditions of
this Agreement, BANK ONE shall assign, transfer, convey and
deliver to Premier, 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 BANK ONE's right, title
and interest in and to the real estate described in
attached Schedule A on which an Office is situated,
together with all of BANK ONE's rights in and to all
improvements thereon; and all easements rights,
privileges and appurtenances associated therewith
(the "Owned Real Estate");
(b) LEASED REAL ESTATE. A good and valid leasehold
estate in the real estate described in attached
Schedule B and created by certain lease agreements
between BANK ONE and certain lessors (the "Third Party
Leases") for the real estate upon which the
referenced branches are situated (the "Leased Real
Estate"), which Third Party Leases are specifically
identified on Schedule B annexed hereto;
(c) FURNITURE AND EQUIPMENT. All of BANK ONE's right,
title and interest in and to the furniture, fixtures
and equipment, excluding the teller calculators,
CRTs, computers, terminals, software, all computer
equipment including peripherals and cords, telephones
and telephone systems and software, controllers and
printers, signs, sign stands, floorstands, marketing
and product materials and displays, graphics,
printed supplies and documents and
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other items bearing the BANK ONE or affiliate name and/or logo
or other proprietary mark, owned by BANK ONE and located at
the Offices, but specifically including that listed on
Schedule C attached hereto (the "Fixed Assets");
(d) SAFE DEPOSIT BUSINESS. All right, title and interest
of BANK ONE 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)
located 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, petty cash, ATM cash and tellers' cash;
(f) PREPAID EXPENSES. All prepaid expenses recorded or
otherwise reflected on the books of BANK ONE as at
September 30, 1995, or incurred in the ordinary
course of business thereafter, as being attributable
to the Offices as of the close of business on the day
immediately preceding the Closing Date, but only to
the extent attributable to the Assets sold, assigned
or transferred to Premier by BANK ONE pursuant to
this Agreement and only to the extent arising by
reason of Premier's use or ownership of such Assets
after the close of business on the Closing Date. Any
and all prepaid expenses incurred by BANK ONE with
respect to the Offices subsequent to September 30,
1995, shall be subject to the prior written consent
of Premier;
(g) OFFICE LOANS. All 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 to an Office
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and being assumed by Premier pursuant to this Agreement (the
"Deposit Account Loans") or (ii) automatically created as the
result of an overdraft of a Deposit Account pursuant to a
pre-approved overdraft protection program offered by BANK ONE
(the "Overdraft Loans"). The Deposit Account Loans and
Overdraft Loans are hereinafter referred to collectively as
the "Office Loans." BANK ONE shall not make any material
change to its customary policies for making Office Loans at
the Offices or extend Office Loans which are materially
different than loans offered by BANK ONE's other offices in
Lorain County, Ohio. The transfer of the Office Loans will be
made without any reserve for loan losses;
(h) RECORDS OF THE OFFICES. All original records and
documents related to the Assets transferred or
liabilities assumed by Premier including, but not
limited to the deposit accounts; and
(i) CONTRACTS OR AGREEMENTS. All of BANK ONE's right,
title and interest in and to the maintenance and
service agreements related to the Offices, as listed
on Schedule D annexed hereto and made a part hereof
(the "Assumed Contracts"), provided the same are
assignable.
1.03 ACCEPTANCE AND ASSUMPTION. Subject to the terms and
conditions of this Agreement, on and as of the Closing on the
Closing Date, Premier shall:
(a) ASSETS. Receive and accept all of the Assets
assigned, transferred, conveyed and delivered to
Premier by BANK ONE pursuant to this Agreement,
including those identified in Section 1.02 above.
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(b) DEPOSIT LIABILITIES. Assume and thereafter
discharge, pay in full and perform all of BANK
ONE's obligations and duties relating to the "Deposit
Liabilities" (as hereinafter defined). The term
"Deposit Liabilities" is defined herein as all of
BANK ONE's obligations, duties and liabilities of
every type and character relating to all deposit
accounts, other than (i) KEOGH accounts, (ii) deposit
accounts securing any loan of BANK ONE which is not
an Office Loan, for which Premier assumes no
liability, which, as reflected on the books of BANK
ONE as of the close of business on the Closing Date,
are attributable to the Offices, and (iii) public
funds deposits and deposits associated with certain
commercial relationships which BANK ONE elects, at
its sole discretion, to retain as listed in Schedule
R. The deposit accounts referred to in the
immediately preceding sentence (hereinafter the
"Deposit Accounts") include, without limitation,
passbook accounts, checking, Money Market and NOW
accounts, Individual Retirement Accounts for which
BANK ONE 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
Premier as successor custodian ("IRA's") and
certificates of deposit. 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 post-closing periods
including, without limitation, Form 1099's, relating
to the Deposit Accounts. With regard to each IRA
included within the Deposit Accounts, Premier shall
also assume the plan pertaining thereto and the
trustee or custodial arrangement in connection
therewith.
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(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 BANK ONE
arising after the Closing Date with respect to:
(i) all leases listed on Schedule E to this
Agreement (including safe deposit leases
if any) and sold, assigned or transferred
to Premier by BANK ONE 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 BANK ONE, subject to the
agreed allocation of such rents, which
allocation shall be satisfied in full by
BANK ONE paying to Premier, in the manner
specified in Section 6.04 hereof, the
amount of rental payment received by BANK
ONE for each such safe deposit box
attributable to and prorated to reflect
the period from and after the Closing
Date, subject to the provisions of the
applicable leases or other agreements
relating to such boxes; and
(iii) all safekeeping items and agreements
listed on Schedule E to this Agreement and
delivered to Premier by BANK ONE pursuant
to this Agreement, including, but not
limited to, all applicable safekeeping
agreements, memoranda, or receipts so
delivered to Premier by BANK ONE
hereunder.
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(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 BANK ONE as of
the date of this Agreement, which are (i) reflected
on the books of BANK ONE as being attributable to an
Office as of the close of business on the Closing
Date, and (ii) disclosed, by description and an
estimate of the amount, to Premier in writing prior
to the date of this Agreement), but only to the
extent attributable to the Assets sold, assigned or
transferred to Premier by BANK ONE pursuant to this
Agreement and only to the extent arising by reason
of Premier's use or ownership of such Assets after
the close of business on the Closing Date. No
additional liabilities and obligations of BANK ONE
incurred subsequent to the date of this Agreement
shall be assumed by Premier unless the prior written
consent of Premier has been obtained prior to the
incursion of the liability or obligation by BANK
ONE.
(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 Premier's
assumption of the Deposit Liabilities and its other
agreements herein, BANK ONE shall make available and
transfer to Premier, 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
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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 Premier as of the close of
business on the Closing Date; and
(ii) the aggregate net book value of the Owned
Real Estate being transferred to Premier
as of the end of the month immediately
preceding the Closing Date and which sum
is attributable to the Offices as set
forth in Schedule S to this Agreement;
(iii) the aggregate purchase price (and the
present net book value) of the furniture,
fixtures and equipment being transferred
to Premier as of the end of the month
immediately preceding the Closing Date
attributable to the Offices as set forth
in Schedule S to this Agreement; and
(iv) 5.00% of the aggregate "Core Deposits" (as
hereinafter defined) of the Offices as of
the close of business on the Closing Date.
The term "Core Deposits" shall mean the
aggregate balance of all Deposit
Liabilities of the Offices (which
aggregate balance shall include interest
posted to such accounts as of the close of
business on the Closing Date but shall
exclude interest accrued but not posted to
such accounts as of such dates). Total Core
Deposits assumed by Premier pursuant to
this agreement shall be calculated as set
forth herein as of the Closing Date. The
amount calculated as the product of 5.00 %
times the Core Deposits of the Offices as
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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.
In the event that the sum of items (i) through (vi)
above should be in excess of the aggregate amount to
be transferred by BANK ONE pursuant to the first
paragraph of this Section 1.04(a), the full amount of
such excess shall constitute an amount due from
Premier to BANK ONE, and shall be paid to BANK ONE at
the Closing in the manner specified in Section 6.04
hereof. The parties shall execute a Preliminary
Settlement Statement at the Closing and Final
Settlement post-closing, in substantially the same
forms as those attached as Schedules P and Q,
respectively.
(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
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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 BANK ONE and
Premier 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. With respect to
premiums paid to the FDIC deposit insurance for the
Deposit Liabilities it shall be assumed that all the
Deposit Liabilities are insured under the Bank
Insurance Fund; the proration of FDIC insurance
premiums will be based on the amount of the Deposit
Liabilities as of the close of business on the
Closing Date and the number of days during any period
for which BANK ONE has prepaid premiums to the FDIC
but during which Premier 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. The transfer (or
conveyance) fees relating to the Owned Real Estate
and the costs, fees and expenses of all title
commitments, title guaranties and title examinations
relating to the procurement of the Title Commitments
related to the Owned Real Estate and the Leased Real
Estate referred to in Sections 2.01(c) and 5.02(g)
herein, shall be allocated to, and shall be borne,
solely and exclusively by BANK ONE. The costs, fees
and expenses relating to the premiums for all title
insurance policies (net of the costs of all title
commitments, guaranties and
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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 BANK ONE's interest in the Leased Real
Estate, shall be allocated to, and shall be borne,
solely and exclusively, by Premier. BANK ONE shall
reimburse Premier at the Closing for all the costs,
fees and expenses allocated to BANK ONE pursuant to
this Section 1.04(c) but paid by Premier, and Premier
shall reimburse BANK ONE at the Closing for all of
the costs, fees and expenses allocated to Premier
pursuant to this Section 1.04(c) but paid by BANK ONE
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.
If this transaction does not close for any other
reason, each party shall reimburse the other party
upon termination of this Agreement for such party's
share of expenses so that each party shall pay the
same share of expenses as it would have paid at
Closing.
2. CONDUCT OF THE PARTIES PRIOR TO CLOSING.
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2.01 COVENANTS OF BANK ONE. BANK ONE hereby covenants to Premier
that, from the date hereof until the Closing, it will do or
cause the following to occur:
(a) OPERATION OF THE OFFICES. BANK ONE shall continue to
operate the Offices in a manner equivalent to that
manner and system of operation employed immediately
prior to the date of this Agreement; provided,
however, that it is contemplated by the parties that
BANK ONE will be terminating certain programs which
are currently in effect which allow depositors to
access Deposit Accounts through electronic means as
of the close of business on the Closing Date with any
outstanding transactions subject to post-closing
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adjustment as provided herein. BANK ONE will use its
best efforts to ensure that no harm or damage to the
reputation of the Offices or material reduction in
the existing deposit liabilities of the Offices
occurs.
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, BANK ONE shall not, without the
prior consent of Premier, 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 BANK ONE's
other operations any material amount of
Assets, except for (a) supplies, if any,
which have unique function in BANK ONE's
business and ordinarily would not be
useful to Premier, (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 BANK ONE or affiliate
name and/or logo;
(iii) cause the Offices to transfer to BANK
ONE's other operations any deposits other
than deposits securing loans made by BANK
ONE
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which are not Office Loans, except in the
ordinary course of business at the
unsolicited request of depositors or cause
any of BANK ONE's other operations to
transfer to the Offices any deposits,
except in the ordinary course of business
at the unsolicited request of depositors;
provided, however, that BANK ONE shall be
permitted to make such transfers of any
deposits to or from the Offices provided
that neither (A) the net amount of
transfers to the Offices minus the amount
of transfers from the Offices nor (B) the
net amount of transfers from the Offices
minus transfers to the Offices exceeds
$1,000,000;
(iv) invest in any Fixed Assets on behalf of
any Office, except for commitments made on
or before the date of this Agreement which
are disclosed to Premier on Schedule C of
this Agreement and for replacements of
furniture, furnishings and equipment and
normal maintenance and refurbishing
purchased or made in the ordinary course
of Office business;
(v) enter into or amend any continuing
contract (other than Deposit Liabilities
and Office Loans) relating to the Offices,
which cannot be terminated without cause
and without payment of any amounts as a
penalty, bonus, premium or other
compensation for termination, or which is
not made in the ordinary course of Office
business;
(vi) undertake any actions which are
inconsistent with a program to use all
reasonable efforts to maintain good
relations with
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customers and with employees employed at
the Offices, unless such actions are
required or permitted by this Agreement;
(vii) 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 any employee of the Offices,
increase the compensation of any employee
of the Offices, or promote any of the
employees except pursuant to and
consistent with customary BANK ONE
procedures and policies; or
(viii) make any material change to its customary
policies for setting rates on deposits
offered at the Offices so as to cause a
material reduction or increase in the
existing Deposit Liabilities.
(b) INFORMATION CONCERNING THE OFFICES. Upon reasonable
notice, BANK ONE shall permit officers and authorized
representatives of Premier access to inspect the
Offices during normal business hours or at such other
time mutually agreed upon by both parties and permit
Premier to make or cause to be made such reasonable
investigation of information and materials relating
to the financial condition of the Offices, including
general and subsidiary ledgers, deposit records,
audit reports and any other information concerning
the business, property, personnel and legal questions
concerning the Offices (and related to the physical
condition of the Offices), as Premier reasonably
deems necessary or advisable; provided, however, that
such access and investigation shall be reasonably
related to the transactions contemplated hereby and
shall not interfere unnecessarily with the normal
operations of the Offices or BANK ONE; and provided,
further, that nothing
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in this Section 2.01(b) shall be deemed to require
BANK ONE to breach any obligation of confidentiality
or to reveal any proprietary information, trade
secrets, marketing, strategic plans or information
not related to the transaction contemplated by this
Agreement. The information and materials related to
the financial condition of the Offices which will be
made available to Premier from BANK ONE pursuant to
this subsection will be accurate in all material
respects and will accurately and completely reflect
the Deposit Liabilities attributable to the Offices
as of the date the information is provided.
(c) TITLE COMMITMENTS FOR REAL ESTATE. BANK ONE shall
deliver to Premier, at BANK ONE'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 authorized
to do business in Ohio designated by BANK ONE and
reasonably satisfactory to Premier, to issue to
Premier as soon as practicable after the Closing
Date, as applicable, an 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 satisfactory to Premier (but not in excess of
the appraised value of such properties or, as
applicable, the amount of the leasehold interest to
be transferred to Premier pursuant to the Third Party
Lease) covering the Owned Real Estate and Leased Real
Estate, subject to the exceptions specified in the
Title Commitments. Such commitments shall show title
vested in BANK ONE. If title to all or part of the
Owned Real Estate or Lease Real Estate is
unmarketable or is subject to any defect, lien,
encumbrance, easement, condition, restriction or
encroachment other than the
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Permitted Exceptions as defined in Section 10.08(c)
herein, then Premier shall provide written notice
thereof to BANK ONE. BANK ONE shall have thirty days
after written notice thereof from Premier, to elect
to remedy or remove any such defect, lien,
encumbrance, easement, condition, restriction or
encroachment but, if BANK ONE does not, Premier 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 addition to any
other rights which Premier may have hereunder,
Premier shall have the right (i) to declare this
Agreement terminated by written notice to BANK ONE,
or (ii) 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
is being sold by BANK ONE to Premier hereunder free
and clear of all liens, claims, encumbrances and
rights of tenants in possession except for the
Permitted Exceptions, and the conveyance by Limited
Warranty Deed to be delivered by BANK ONE pursuant
hereto shall be subject only to the Permitted
Exceptions. BANK ONE also shall execute and deliver
to Premier at the time of Closing such affidavits and
other instruments, if any, as the title insurance
issuing the Title Commitments may 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. BANK ONE also shall execute and
deliver a so-called FIRPTA affidavit at Closing.
Premier shall have the right to obtain at its sole
cost and expense duly certified surveys, and BANK ONE
hereby grants to Premier and its surveyors, agents
and contractors right of access to the Owned Real
Estate and Leased Real Estate, with the prior
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consent of the landlord obtained by Premier, for the
purpose of performing the surveys.
(d) REQUIRED AUTHORIZATIONS. BANK ONE shall obtain and
procure all necessary corporate 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.
(e) CREATION OF LIENS AND ENCUMBRANCES. With respect to
the Owned Real Estate and the Leased Real Estate,
BANK ONE shall not create or allow any liens,
imperfections in title, charges, easements,
restrictions or encumbrances other than the Permitted
Exceptions.
(f) 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 BANK ONE
shall promptly notify Premier thereof, and Premier
may either complete the Closing and receive the
proceeds paid or payable on account of such
acquisition proceedings, or terminate this Agreement.
If Premier terminates this Agreement, both parties
shall thereupon be relieved from all further
obligations hereunder.
(g) INSURANCE PROCEEDS, CASUALTY AND CONDEMNATION
PAYMENTS. BANK ONE 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, BANK ONE shall deliver to Premier any
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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 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 BANK ONE's insurance policy had no
deductible) by BANK ONE as a result thereof unless,
in the case of damage or destruction, BANK ONE has
repaired or replaced the damaged or destroyed
property.
(h) IRA ACCOUNTS. Not later than thirty days prior to
the expected Closing Date, BANK ONE shall, at BANC
ONE's expense, mail notice of BANK ONE's resignation
as Custodian and the appointment of Premier as the
Successor Custodian, effective upon Closing, of each
Individual Retirement Account maintained at the
Offices. The notice shall include such other
information that is mutually agreed upon by BANK ONE
and Premier.
(i) ASSIGNMENT OF LEASES. BANK ONE shall use its
reasonable good faith efforts to obtain any written
consent of landlords as shall be necessary for the
effective assignment of the Third Party Leases as of
the Closing Date. The assignment of the Third Party
Leases shall be in substantially the form of Schedule
F attached hereto and incorporated herein. In the
event such necessary consent to assignments is not
obtained or other arrangements satisfactory to
Premier made, Premier may terminate this Agreement.
(j) INSPECTION OF OWNED REAL ESTATE. BANK ONE hereby
grants Premier the right, at Premier's cost and
expense, to conduct a physical inspection of all
improvements, building, and mechanical equipment
comprising the Owned Real Estate. Any such
inspection shall be conducted at a time mutually
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acceptable to BANK ONE and Premier and shall not
unreasonably interfere with the operation of the
Offices. The inspection shall be conducted not later
than 10 business days following execution of this
Agreement. If such inspection indicates that any of
the building, equipment or improvements comprising
any Office contains any defect which has a material
adverse effect on use of the Office as a branch
banking office ( a "Defect"), Premier shall give
written notice of such Defect and any repairs or
improvements that Premier desires to remedy such
Defect and an estimate of the cost thereof to BANK
ONE within 20 business days of the date of this
Agreement. Premier's estimate for remedy of any such
Defect shall be determined by a reputable licensed
architect or general contractor. BANK ONE may, at its
sole option, 1) elect to remedy the Defect or, 2)
elect to credit the cost of remedy as provided by
Premier against the Acquisition Consideration or, 3)
elect to delete the relevant Office, including all
assets and liabilities associated therewith, from the
terms and conditions of this Agreement. In the event
BANK ONE elects to remedy the Defect, BANK ONE shall
notify Premier of such election and shall proceed to
remedy the Defect. BANK ONE shall provide notice to
Premier upon completion of the remedy and Premier
shall have 5 business days from the date of receipt
of such notice to inspect the remedy and to reject
the remedy by written notice to BANK ONE. In the
event Premier fails to notify BANK ONE of its
rejection of the remedy, the remedy shall be deemed
complete and accepted by Premier and shall no longer
constitute a Defect pursuant to this Agreement.
Anything to the contrary herein notwithstanding,
Premier shall have no right to notify BANK ONE of
any Defect where the costs of repairs or improvements
are estimated by a reputable licensed architect or
general contractor to be less than $2000 for any
Office. The improvements, building and mechanical
equipment comprising
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the Offices shall be in the same general physical
condition on the Closing Date as on the date of
inspection, subject to the effect of any Defect and
any remedy thereof, reasonable wear and tear
excepted, and any damage contemplated in Section 2.01
herein.
2.02 COVENANTS OF PREMIER. Premier hereby covenants to BANK ONE
that, from the date hereof until the Closing, it will do or
cause the following to occur:
(a) REGULATORY APPLICATIONS. Premier shall prepare and
submit for filing, at no expense to BANK ONE, any and
all applications, filings, and registrations with,
and notifications to, all federal and state
authorities required on the part of Premier or any
shareholder or affiliate of Premier for the
Acquisition to be consummated at the Closing as
contemplated in Section 6.01 herein and for Premier
to operate the Offices following the Closing.
Premier shall provide BANK ONE with a draft copy of
each application for BANK ONE's approval prior to
filing, which approval by BANK ONE will not be
unreasonably withheld or delayed. BANK ONE's failure
to act upon a draft application within five (5)
business days from receipt therof will permit Premier
to file the application without BANK ONE approval.
Such applications will be submitted to BANK ONE in
draft form within thirty (30) days from the date of
this Agreement and filed by Premier without delay
following BANK ONE'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, Premier 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
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therewith as may be reasonably necessary for the
Acquisition to be consummated at such Closing and for
Premier to operate the Offices following the Closing.
Premier shall deliver to BANK ONE 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). Premier shall also deliver to BANK
ONE a copy of each material notice, order, opinion
and other item of correspondence received by Premier
from such federal and state authorities (except for
any confidential portions thereof) and shall advise
BANK ONE, at BANK ONE's request, of developments
and progress with respect to such matters.
(b) REQUIRED AUTHORIZATIONS. Premier shall obtain and
procure all necessary corporate 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. Premier 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 BANK ONE's obligations to
consummate the Closing of the Acquisition to be fully
satisfied. Additionally, Premier
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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. Premier
shall, at BANK ONE's request in connection with BANK
ONE's obtaining the consents specified in Section
2.01(I), advise, in writing, the lessors of Leased
Real Estate, of Premier's intent to assume and comply
with the terms of the Third Party Leases (as to
matters arising from and after the Closing Date).
2.03 COVENANTS OF ALL PARTIES. BANK ONE hereby covenants to
Premier, and Premier hereby covenants to BANK ONE 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 BANK ONE. BANK ONE
represents and warrants to Premier as follows:
(a) GOOD STANDING AND POWER OF BANK ONE. BANK ONE is a
national banking association duly organized, validly
existing, and in good standing under the laws of the
United States with corporate power to own its
properties and to carry on its business as presently
conducted. BANK ONE
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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 BANK ONE,
and this Agreement is a valid and binding obligation
of BANK ONE.
(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 BANK ONE 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
Articles of Association or By-Laws of BANK ONE, 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 BANK ONE is subject,
where such conflict, breach, violation, default,
acceleration or lien would have a material adverse
effect on the Assets or BANK ONE'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, BANK
ONE 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, BANK ONE is the sole owner of a fee
simple interest in, and has good and marketable title
to, such Owned Real
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Estate, free and clear of all liens, claims,
encumbrances and rights of tenants in possession
except for the Permitted Exceptions and shall convey
such real estate to Premier by delivery at the
Closing of a limited warranty deed conveying such
title subject only to the Permitted Exceptions. BANK
ONE has valid leasehold title to the Leased Real
Estate pursuant to the Third Party Lease and has the
use of the Leased Real Estate pursuant to the Third
Party Lease, a binding lease agreement which will be
assigned to Premier by delivery of an assignment
conveying such leasehold interest to Premier at
the Closing.
(e) ZONING VARIATIONS. As of the date of this Agreement,
BANK ONE has neither received written notice of nor
has it any notice of any contemplation to provide
BANK ONE with any written notice from any
governmental authority of any uncorrected violations
of zoning and/or building codes relating to the Owned
Real Estate or Leased Real Estate. The Owned Real
Estate and Leased Real Estate are zoned to permit
Premier to use said properties as offices of a
financial institution.
(f) IRA ACCOUNT DOCUMENTATION. The form of Individual
Retirement Custodial Account Agreement for individual
retirement accounts, and the related Amended and
Restated Individual Retirement Account Disclosure
Statement annexed hereto as Schedule F, constitute
the form of the document establishing the trustee or
custodial arrangement in connection with all IRAs's
maintained at the Office.
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(g) CONDEMNATION PROCEEDINGS. BANK ONE 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.
(h) NO BROKER. No broker or finder, or other party or
agent performing similar functions, has been retained
by BANK ONE or is entitled to be paid based upon any
agreements, arrangements, or understandings made by
BANK ONE in connection with the transactions
contemplated hereby, and no brokerage fee or other
commission has been agreed to be paid by BANK ONE on
account of the transactions contemplated hereby.
(I) TAXES. All federal, state and local payroll,
withholding, property, sales, use and transfer taxes,
if any, which are due and payable by BANK ONE
relating to the Offices prior to the date of Closing
shall be paid in full as of the Closing Date or BANK
ONE 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 BANK ONE shall remain the property
of BANK ONE.
(j) OPERATIONS LAWFUL. The conduct of banking business
at the Offices is in compliance in all material
respects with all federal, state, county and
municipal laws, ordinances and regulations applicable
to conduct of such business.
(k) THIRD-PARTY CLAIMS. There are no actions, suits or
proceedings, pending or, to the best of BANK ONE's
knowledge, threatened against or affecting
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BANK ONE which could have a material adverse effect
on the aggregate value of the banking business
and Assets of the Offices.
(l) INSURANCE. BANK ONE maintains such insurance on the
Offices and the Fixed Assets to be purchased by or
assigned to Premier as may be required or as is
customary in the business of banking.
(m) LABOR RELATIONS. No employee located at any of the
Offices is represented, for purposes of collective
bargaining, by a labor organization of any type. BANK
ONE is unaware of any efforts during the past three
years to unionize or organize any employees at any
Office, and no material claim related to employees at
the Offices under the Fair Labor Standards Act,
National Labor Relations Act, Civil Rights of 1964,
Walsh-Healy Act, Davis Bacon Act, Civil Rights of Act
of 1866, 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
BANK ONE's knowledge, threatened against or with
respect to BANK ONE.
(n) GOVERNMENTAL NOTICES. BANK ONE has not received
notice from any federal or state governmental agency
indicating that it would oppose or not grant or issue
its consent or approval, if required, with respect to
the transactions contemplated by this Agreement.
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(o) ENVIRONMENTAL. To the actual knowledge of the
Facilities Manager of BANK ONE, 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 BANK ONE 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 Facilities Manager of BANK ONE, 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
BANK ONE is a plaintiff or complainant. To the
actual knowledge of the Facilities Manager of BANK
ONE, BANK ONE is not responsible in any material
respect under any applicable environmental law for
any release by BANK ONE 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 BANK ONE
responsible for any material costs (as a result of
the acts or omissions of BANK ONE, or, to the actual
knowledge of the Facilities Manager of BANK ONE, 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
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BANK ONE to prevent or minimize any actual or
threatened release by BANK ONE on premises of any
hazardous wastes or other chemical substances,
pollutants and contaminants into the environment
which would endanger the public health or the
environment. All terms contained in quotation marks
in this paragraph and the paragraph immediately
following shall have the meaning ascribed to such
terms as defined in all federal, state and
local statutes, regulations or ordinances.
Except as previously disclosed to Premier in writing,
to the actual knowledge of the Facilities Manager of
BANK ONE, each Office is, in all material respects,
in compliance with all applicable Federal, state,
local or municipal statutes, ordinances, laws and
regulations and all orders, rulings or other
decisions of any court, administrative agency or
other governmental authority relating to the
protection of the environment. For purposes of this
subsection, the term "Facilities Manager of BANK ONE"
shall mean the Regional Property Manager, Banc One
Ohio Corporation.
BANK ONE and Premier mutually covenant and agree that
Premier may, at Premier's sole cost and expense,
commission a Phase I Environmental Site
Assessment (the "Phase I") with respect to the Owned
Real Estate by an independent environmental engineer
reasonably acceptable to BANK ONE and Premier. The
Phase I shall be performed in accordance with the
requirements of the Phase I (ESA) Checklist-Minimum
Requirements, and shall be conducted within 30 days
following execution of this Agreement with
preliminary findings with respect thereto to be
presented to the parties as soon as reasonably
practicable following performance of the Phase I but
in no event later than 60 days following execution
of this Agreement. The Phase I shall
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be conducted in such a manner that does not interfere
with or otherwise prevent the performance of the
normal operations and activities of the Offices. BANK
ONE shall have the opportunity (i) to consult with
Premier and the environmental engineer conducting the
Phase I with respect to the preliminary findings of
the consultant prior to the issuance of the Phase I
report and (ii) at its option to remedy or alleviate
any matter of concern identified in such preliminary
findings prior to the issuance of the Phase I report,
in which latter case issuance of the report by the
deadline previously stated herein shall be deemed
waived by BANK ONE until such later date as BANK
ONE may determine.
Anything to the contrary herein notwithstanding,
Premier hereby covenants and agrees on behalf of
itself and its agents, contractors, directors,
officers and employees that the results of the Phase
I shall be kept and maintained as confidential and
shall not be disclosed to any third parties except:
1) pursuant to a subpoena or order of court of
competent jurisdiction and then only after
notification to BANK ONE in accordance with this
Agreement and affording BANK ONE an opportunity to
intervene in any such proceedings or 2) in response
to the inquiry of appropriate bank regulatory
authorities in conjunction with a termination or
change in a regulatory application and then
limited only to a statement that the reason for the
change or termination relates to an Environmental
Issue (as hereinafter defined), if such is the case,
and in no instance including disclosure of the
existence of, or copies of, the Phase I report or
any other written document pertaining to any
Environmental Issue, or extracts or compilations
thereof, in whole or in part.
In the event that the Phase I preliminary findings
reveal any facts that establish a reason to believe
that any Hazardous Substances are present on,
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have been treated, stored, managed, or disposed of on
any specific location of Owned Real Estate which
could have a material adverse affect on that specific
location of Owned Real Estate or could expose Premier
to potential liability or costs of remediation which
would be material (the "Environmental Issues"), and
Premier notifies BANK ONE of such Environmental
Issues not later than 3 days following receipt of
the Phase I preliminary findings, then BANK ONE may,
in its sole and absolute discretion:
1) take such remedial action so that a Phase I report
can be issued that indicates or reflects that such
Environmental Issues have been resolved or remedied
so that same no longer constitute an Environmental
Issue as defined herein;
2) exclude the specific Owned Real Estate and the
assets and liabilities related thereto from the terms
and conditions of this Agreement. In the event
that BANK ONE elects this option, the parties
recognize and agree that the acquisition
consideration described in Section 1.04 shall be
reduced accordingly, that any such exclusion shall
affect the specific Owned Real Estate identified by
BANK ONE only, and the terms and conditions of this
Agreement shall remain in full force and effect as to
the remainder of the Owned Real Estate and the
assets and liabilities relating thereto;
a) the parties recognize and agree that, in the event
that BANK ONE elects to exclude Owned Real Estate
from the terms and conditions of this Agreement in
accordance with the terms of this subsection, the
parties may, but shall have no obligation to,
enter into a lease on terms agreed by and between the
parties providing for the lease by Premier of any
such
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Owned Real Estate;
3) determine not to take any remedial or other
action, in which case Premier may, at its option
purchase the Owned Real Estate in accordance
with the terms of this Agreement notwithstanding the
Environmental Issues, thereby agreeing to waive any
Environmental Issues and to release and forever
waive any claims relating thereto as against BANK ONE
and its affiliates, shareholders, officers,
directors, employees, agents and contractors;
Anything to the contrary herein notwithstanding, it
is expressly understood and agreed by the parties
that BANK ONE shall have no obligation to take or
cause to be taken any remedial or other action
pursuant to this Agreement or otherwise and that the
failure of BANK ONE to take or cause to take any
remedial or other action shall neither create nor
result in any liability of BANK ONE to Premier, and
that in the event that BANK ONE elects not to take
any action with respect to any Environmental Issue,
the rights of Premier with respect to any
Environmental Issues are solely and exclusively those
set forth in this subsection.
(p) ACCESS TO REAL ESTATE. 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. All sewage, sanitation,
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plumbing, refuse disposal, and similar facilities
servicing the Owned Real Estate and Leased Real
Estate are in full compliance with applicable
governmental regulations.
(q) MECHANIC'S LIENS. BANK ONE 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 of the
Owned Real Estate and the Leased Real Estate, and no
actual or potential mechanic's lien or other claims
are outstanding or available to any party in
connection with the ownership, operation, management,
repair, maintenance, or leasing said properties.
(r) DEPOSIT. Attached as Schedule G hereto is a true and
accurate schedule of all Deposit Accounts (including
individual retirement accounts) domiciled at the
Offices, prepared as of a date within thirty (30)
days prior to the date of this Agreement, listing by
Office and by category the amount of all deposits and
the interest rates and maturity dates associated with
such deposits, and indicating the deposits that
constitute Core Deposits.
(s) OFFICE LOANS. Attached hereto as Schedule H is a
true and accurate schedule of all Office Loans,
including accrued and unpaid interest thereon,
computed as of a date within thirty (30) days prior
to the date of this Agreement, excluding, however,
such Office Loans which are more than 30 days past
due for payment. To the best knowledge of the
Compliance Officer of BANK ONE, the documents
evidencing the Office Loans are in compliance with
applicable provisions of the Truth in Lending Act and
Federal Reserve Regulation Z.
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(t) PERSONAL PROPERTY. Schedule C is a true and accurate
schedule of Fixed Assets owned by BANK ONE at any of
the Offices, which Schedule specifies the original
cost and net book value of each such item, as shown
on the financial records of BANK ONE, computed as of
the month-end immediately prior to the date of
execution of this Agreement and describing any
security interest therein or lien thereon.
(u) ASSUMED CONTRACTS AND THIRD PARTY LEASES. Schedule D
is a true and accurate schedule of all Assumed
Contracts related to the Offices. Each Assumed
Contract is valid and subsisting in full force and
effect.
(v) FIRPTA. BANK ONE is not a "foreign person" within
the meaning of the Internal Revenue Code Section 1445.
(w) BANK SECRECY ACT REPORTING. BANK ONE will provide to
Premier a listing of those Deposit Accounts for which
the records of BANK ONE indicate an exemption to the
reporting requirements of the Bank Secrecy Act at
the same times that BANK ONE is required to provide
listings of Deposit Accounts to Premier pursuant to
this Agreement.
3.02 REPRESENTATIONS AND WARRANTIES OF PREMIER. Premier represents
and warrants to BANK ONE as follows:
(a) GOOD STANDING AND POWER OF PREMIER. PremierBank &
Trust is a banking corporation duly organized,
validly existing, and in good standing under the laws
of the State of Ohio with corporate power to own its
properties and to carry on its business as presently
conducted. PremierBank & Trust
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36
is an insured bank, as defined in the Federal Deposit
Insurance Act and applicable regulations thereunder.
CoBancorp Inc. is a corporation duly organized,
validly existing and in good standing under the laws
of the State of Ohio and a registered bank holding
company under the Bank Holding Company Act of
1956, and as amended.
(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 Premier,
and this Agreement is a valid and binding obligation
of Premier.
(c) EFFECTIVE AGREEMENT. Subject to the receipt of any
and all necessary regulatory approvals, the
execution, delivery, and performance of this
Agreement by Premier, 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 Incorporation or Code of Regulations of
Premier, 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
Premier is subject, where such conflict, breach,
violation, default, acceleration or lien would have a
material adverse effect on Premier's ability to
perform its obligations hereunder.
(d) NO BROKER. No broker or finder, or other party or
agent performing similar functions, has been retained
by Premier or is entitled to be paid based
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upon any agreements, arrangements, or understandings
made by Premier in connection with the transactions
contemplated hereby, and no brokerage fee or other
commission has been agreed to be paid by Premier on
account of the transactions contemplated hereby.
4. ACTIONS RESPECTING EMPLOYEES AND PENSION AND EMPLOYEE BENEFIT PLANS.
--------------------------------------------------------------------
4.01 EMPLOYMENT OF EMPLOYEES
(a) Premier may, but shall be under no obligation to,
extend offers of employment, as of the Closing Date
to employees of the Offices and to the Lorain Area
Market Manager for BANK ONE.
(b) Not later than thirty (30) days following the date of
this Agreement, Premier shall advise BANK ONE, in
writing, of its election, at its sole discretion, to
offer employment to, as of the Closing Date, any or
all of the persons assigned to the Offices as
employees of Premier (such selected persons, who
thereafter accept such offer of employment, are
hereinafter referred to as "Transferred Employees"),
but the language of this Agreement shall not be
construed as an offer of employment to any such
persons. Following the expiration of said 30 days,
BANK ONE shall be permitted to offer employment to
any employees of the Offices who are not Transferred
Employees.
(c) BANK ONE will cooperate with Premier to the extent
reasonably requested and legally permissible to
provide Premier with information about employees of
the Offices including, without limitation, providing
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Premier with the personnel files of those employees
of the Offices who provide BANK ONE with their
written consent thereto, and a means to meet with
employees of the Offices for the purpose of selecting
Transferred 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 solely by
Premier's policies, procedures, and programs; provided,
however, that for purposes of Premier's various employee
benefit plans at and following the Closing Date, time of
service with BANK ONE and its predecessors and affiliates, if
any, will be credited to Transferred Employees for purposes of
determining and calculating their eligibility for, and vesting
(but not for benefit accrual) with respect to, such plans in a
manner consistent with that of The BANC ONE CORPORATION
Retirement Plan. Premier has no obligation to provide health
insurance or health benefits for aTransferred Employee or
Transferred Employee's family member in the event that such
Transferred Employee or Transferred Employee's family member
is determined by Premier's health insurer to be not insurable
due to a pre-existing condition.
4.03 COMPLIANCE WITH LAW. BANK ONE agrees that it shall comply
with any applicable requirements, if any, for the Worker
Adjustment and Retraining Notification Act in connection with
the transaction contemplated by this Agreement.
4.04 ACTIONS TO BE TAKEN BY BANK ONE. BANK ONE covenants to
Premier that it will do or cause the following to occur:
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(a) SOLICITATION OF TRANSFERRED EMPLOYEES. Except with
the written consent of Premier, for six months
following the Closing Date, BANK ONE will not solicit
Transferred Employees as prospective officers or
employees of BANK ONE.
(b) EMPLOYEE BENEFIT PROGRAMS. BANK ONE's obligations to
employees of the Offices, including Transferred
Employees, will be as set forth in established
policies of BANC ONE CORPORATION and/or BANK ONE and
BANK ONE shall continue its employee benefit programs
in full force and effect as benefit programs for
Transferred Employees through the Closing Date.
After the Closing, BANK ONE shall retain the
responsibility and liability for the funding and
payment of all claims incurred under such employee
benefit programs through the Closing Date. Premier
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 BANK ONE,
except with respect to eligibility and vesting as set
forth in Section 4.02, above.
(c) EMPLOYEES OF THE OFFICES. BANK ONE shall not,
without Premier'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 BANK ONE for the
Offices at the date hereof, (ii) terminate any
Transferred Employee prior to the Closing Date,
except in accordance with applicable policies and
procedures of BANC ONE, (iii) transfer or assign any
Transferred Employee prior to the Closing Date to a
position of permanent employment with BANK ONE; or
(iv) increase the
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compensation of any Transferred Employee except
pursuant to existing BANK ONE policies and
procedures.
The obligations of BANK ONE pursuant to this Section 4.04
shall survive the Closing.
5. CONDITIONS PRECEDENT TO CLOSING.
--------------------------------
5.01 CONDITIONS TO BANK ONE'S OBLIGATIONS. The obligations of BANK
ONE to consummate the Acquisition are subject to the
satisfaction, or the waiver in writing by BANK ONE to the
extent permitted by applicable law, of the following
conditions at or prior to the Closing:
(a) PRIOR REGULATORY APPROVAL. All filings and
registrations with, and notifications to, all federal
and state authorities required for consummation of
the Acquisition shall have been made, all approvals
and authorizations of all federal and state
authorities required for consummation of the
Acquisition shall have been received and shall be in
full force and effect, and all applicable waiting
periods shall have passed.
(b) CORPORATE ACTION. The Board of Directors of Premier
shall have taken all corporate action necessary by it
to effectuate this Agreement and the Acquisition and
Premier shall have furnished BANK ONE with a
certified copy of each such resolution adopted by the
Board of Directors of Premier evidencing the same.
(c) REPRESENTATIONS AND WARRANTIES. The representations
and warranties of Premier set forth in this Agreement
shall be true and correct in all material
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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 Premier shall
have delivered to BANK ONE 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 Premier 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 Premier, or waived
by BANK ONE, and Premier shall have delivered to BANK
ONE a Certificate to that effect, dated as of the
Closing Date to the effect specified in Schedule I to
this Agreement.
(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 BANK ONE, 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 BANK ONE shall have been furnished
with a Certificate, substantially in the form as
specified in Schedule I to this Agreement, dated as
of the Closing Date and signed by the Chairman,
President, or an Executive Vice President and
Secretary or Assistant Secretary of Premier, to the
effect that no such litigation, investigation,
inquiry, or proceeding is pending or, to the best of
their knowledge, threatened.
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(f) OPINION OF COUNSEL. Premier shall have delivered
to BANK ONE an opinion, dated as of the Closing Date,
of legal counsel reasonably satisfactory to BANK
ONE and its counsel, in form and substance reasonably
satisfactory to BANK ONE and its counsel, to the
effect specified in SCHEDULE J to this Agreement.
5.02 CONDITIONS TO PREMIER'S OBLIGATIONS. The obligations of
Premier to consummate the Acquisition are subject to the
satisfaction, or the waiver in writing by Premier 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
Premier shall have been made, all approvals and
authorizations of all federal and state authorities
required for consummation of the Acquisition and
operation of the Offices by Premier 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 BANK ONE
shall have taken all corporate action necessary to
effectuate this Agreement and the Acquisition; and
BANK ONE shall have furnished Premier with a
certified copy of each such resolution adopted by the
Board of Directors of BANK ONE evidencing the same.
(c) REPRESENTATIONS AND WARRANTIES. The representations
and warranties of BANK ONE set forth in this
Agreement shall be true and correct in all
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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 BANK ONE
shall have delivered to Premier a Certificate to that
effect, dated as of the Closing Date to the effect
specified in SCHEDULE K to this Agreement.
(d) COVENANTS. Each and all of the covenants and
agreements of BANK ONE to be performed or complied
with pursuant to this Agreement shall have been duly
performed or complied with in all material respects
by BANK ONE, or waived by Premier, and BANK ONE shall
have delivered to Premier a Certificate to that
effect, dated as of the Closing Date to the effect
specified in SCHEDULE K to this Agreement.
(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 Premier, with
the advice of counsel, presents a bona fide claim to
restrain, enjoin, or prohibit consummation of the
transactions contemplated by this Agreement or which
might result in rescission in connection with such
transactions; and Premier shall have been furnished
with a Certificate, in substantially the form
specified in SCHEDULE K to this Agreement, dated as
of the Closing Date and signed by the Chairman,
President, or Vice President, and the Secretary or
Assistant Secretary of BANK ONE, to the effect that
no such litigation, investigation, inquiry, or
proceeding is pending or threatened to the best of
their knowledge.
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(f) OPINION OF COUNSEL. BANK ONE shall have delivered to
Premier an opinion, dated as of the Closing Date, of
legal counsel reasonably satisfactory to Premier and
its counsel, in form and substance reasonably
satisfactory to Premier and its counsel, to the
effect specified in SCHEDULE L to this Agreement.
(g) REAL PROPERTY. The Title Commitment (as defined in
Section 2.01(c) herein) shall have been delivered to
Premier, 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 adjustment to the Fixed Assets. For
purposes of this subsection (h), it will not be
considered to be a material alteration or adjustment
to the Fixed Assets if (i) there is damage or
destruction to the Fixed Assets as contemplated by
Section 2.01(g) herein and BANK ONE complies with
said Section 2.01(g), (ii) BANK ONE makes additions
to the Fixed Assets with the prior written consent of
Premier or (iii) BANK ONE makes additions to the
Fixed Assets without Premier's consent in order to
correct emergency situations which are threatening to
impair BANK ONE's operations at an Office.
5.03 NON-SATISFACTION OF CONDITIONS PRECEDENT. The non-occurrence
or delay of the Closing of the Acquisition by reason of the
failure of timely satisfaction of all
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conditions precedent to the obligations of any party hereto to
consummate the Acquisition shall in no way relieve such party
of any liability to the other party hereto, nor be deemed a
release or waiver of any claims the other party hereto may
have against such party, if and to the extent the failure of
timely satisfaction of such conditions precedent is
attributable to the actions or inactions of such party.
5.04 WAIVER 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 Premier and BANK ONE 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 Premier
and BANK ONE, on a date to be mutually agreed upon by Premier
and BANK ONE which date is after all required regulatory
approvals have been obtained and all applicable regulatory
waiting periods associated therewith have expired. The
precise date on which the Closing shall occur (the "Closing
Date") shall be confirmed by the parties in writing not less
than five (5) days after receiving all required regulatory
approvals.
6.02 BANK ONE'S ACTIONS AT CLOSING. At the Closing (unless another
time is specifically stated in Section 6.04 hereof), BANK ONE
shall, with respect to the Offices:
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(a) deliver to Premier 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 Premier 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 to consummate
the sale, assignment, and transfer of the Assets sold
or assigned to Premier 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 BANK ONE's
possession or which BANK ONE has reasonable access
to; and such other documents or instruments as may be
reasonably required by Premier, required by other
provisions of this Agreement, or reasonably necessary
to effectuate the Closing. All of the documents and
instruments to be delivered by BANK ONE hereunder
shall be in form and substance reasonably
satisfactory to counsel for Premier; and
(c) execute, acknowledge and deliver to Premier a duly
executed and recordable assignment to Premier of each
Third Party Lease and a consent to assignment from
the landlord of each Third Party Lease all in
substantially as set forth in SCHEDULE F attached
hereto and incorporated herein by reference;
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(d) assign, transfer, and deliver to Premier
such of the following records (in whatever form or
medium then maintained by BANK ONE) pertaining
to the Deposit Liabilities and accrued interest
thereon of the Offices assumed by Premier hereunder
as exist and are available:
(i) signature cards, orders and contracts
between BANK ONE and depositors of the
Offices, and records of similar character;
and
(ii) canceled checks and/or negotiable orders
of withdrawal representing charges to
depositors; and
(iii) a trial balance listing of records of
account; and
(iv) all other miscellaneous records,
statements and other data and materials
maintained by BANK ONE relative to any
Deposit Liabilities being assumed by
Premier; and
(e) assign, transfer, and deliver to Premier such safe
deposit and safekeeping files and records (in
whatever form or medium then maintained by BANK ONE)
pertaining to the safe deposit business of the
Offices transferred to Premier 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
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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 Premier on the Closing
Date and prior to the conclusion of the Closing any
funds required to be paid to Premier pursuant to the
terms of this Agreement; and
(g) execute, acknowledge and deliver to Premier all
Certificates and other documents required to be
delivered to Premier by BANK ONE at the Closing
pursuant to the terms hereof; and
(h) assign by endorsement substantially in a form as
provided in SCHEDULE N attached hereto, transfer and
deliver to Premier the contract, promissory note(s)
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 BANK
ONE) pertaining to such Office Loans; and
(i) assign to Premier all BANK ONE's rights in and to the
Assumed Contracts which are assignable and which
constitute part of the Assets.
6.03 PREMIER'S ACTIONS AT THE CLOSING. At the Closing (unless
another time is specifically stated in Section 6.04 hereof),
Premier shall, with respect to the Offices:
(a) execute, acknowledge, and deliver to BANK ONE, to
evidence the assumption of the liabilities and
obligations of BANK ONE by Premier hereunder, an
instrument of assumption in the form set forth in
SCHEDULE O
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to this Agreement, and BANK ONE 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 Premier by BANK ONE hereunder; and
(c) execute and deliver to BANK ONE such written receipts
for the Assets, properties, records, and other
materials assigned, transferred, conveyed, or
delivered to Premier hereunder as BANK ONE may
reasonably have requested at or before the Closing;
(d) pay to BANK ONE on the Closing Date and prior to the
conclusion of the Closing any funds required to be
paid to BANK ONE at the Closing pursuant to the terms
of this Agreement;
(e) execute, acknowledge and deliver to BANK ONE all
Certificates and other documents required to be
delivered to BANK ONE by Premier at the Closing
pursuant to the terms hereof; and
(f) execute, acknowledge and deliver to BANK ONE an
agreement wherein Premier assumes obligations with
respect to the Third Party Lease and Assumed
Contracts for all periods following the Closing Date
with respect thereto.
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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 Premier or to BANK ONE, 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 collected
funds of the United States. At least two business days prior
to the Closing, BANK ONE and Premier 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 the day immediately preceding the Closing
Date, (b) cash on hand at the Offices as of the close of
business on the day immediately 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 Premier as the successor
custodian and the failure of the account holders to object to
such appointment) as of the close of business on the day
immediately preceding the Closing Date; and (ii) that 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, Office Loans and cash transactions which took place
on the Closing Date or which took place prior to the Closing
Date but which were not reflected as of the close of business
on the day immediately preceding the Closing Date and execute
the Final Settlement in a form substantially similar to
SCHEDULE Q, attached. 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 figures as soon as possible after the Closing.
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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, Ohio 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.
7. CERTAIN TRANSITIONAL MATTERS.
-----------------------------
7.01 TRANSITIONAL ACTION BY PREMIER. After the Closing, unless
another time is otherwise indicated:
(a) Premier 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
Premier 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 Premier hereunder, whether drawn
on checks, negotiable orders or withdrawal, drafts,
or withdrawal order forms provided by Premier or BANK
ONE; and (ii) in all other respects discharge, in the
usual course of the banking business, the duties and
obligations of BANK ONE with respect to the balances
due and owing to the depositors whose Deposit
Accounts are assumed by Premier hereunder; PROVIDED,
HOWEVER, that any obligations of Premier pursuant to
this Section 7.01 to honor checks,
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negotiable orders of withdrawal, drafts, and
withdrawal orders on forms provided by BANK ONE and
carrying its imprint (including its name and transit
routing number) shall not apply to any checks, draft,
or withdrawal order (i) presented to Premier more
than one hundred twenty (120) days following
the Closing Date, (ii) with a date more than one
hundred twenty (120) days prior to (a) the Closing
Date or (b) the date of Premier's receipt thereof, or
(iii) on which a stop payment has been requested by
the deposit customer. The provisions of this
subsection 7.01(a) shall in no way limit Premier's
duties or obligations arising under Section 1.03(b)
hereof.
(b) Premier 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 25 days prior to the Closing
Date, notify all depositors of the Offices by letter,
acceptable to BANK ONE, produced in, if appropriate,
several similar, but different forms calculated to
provide necessary and specific information to the
owners of particular types of accounts, of Premier's
pending assumption of the Deposit Liabilities
hereunder, and, in appropriate instances, notify
depositors that on and after the Closing Date certain
BANK ONE deposit-related services and/or BANK ONE's
debit card and automatic teller machine services,
will be terminated. As an enclosure to such notices,
Premier may furnish appropriate depositors with
brochures, forms and other written materials related
or necessary to the assumption of the Deposit
Accounts by Premier and the conversion of said
accounts to Premier accounts, including the provision
of checks to appropriate depositors using the forms
of Premier with instructions to such depositors to
utilize such Premier checks on and after the Closing
Date and thereafter to destroy any unused checks on
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BANK ONE's forms. The expenses of the printing,
processing and mailing of such letter notices and
providing new Premier checks and other forms and
written materials to appropriate customers shall be
borne by Premier. Before Closing, except as provided
in this paragraph, Premier will not contact BANK
ONE's customers except as may occur in connection
with advertising or solicitations directed to the
public generally or in the course of obtaining the
requisite regulatory approvals of the transaction.
(c) Premier shall promptly pay to BANK ONE an amount
equivalent to the amount of any checks, negotiable
orders of withdrawal, drafts, or withdrawal orders
(net of the applicable Acquisition Consideration paid
by Premier with respect to the Deposit Liabilities
represented by any such instrument) credited as of
the close of business on the Closing Date to a
Deposit Account assumed by Premier hereunder which
are returned uncollected to BANK ONE after the
Closing Date and which shall include an amount
equivalent to holds placed upon such deposit account
for items cashed by BANK ONE as of the close of
business on the Closing Date which items are
subsequently dishonored.
(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 BANK ONE pursuant
to, Section 7.02(b) herein, are the sole and
exclusive responsibility of, and shall be performed
solely and exclusively by, Premier.
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(e) Premier 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 BANK ONE had provided similar
security.
(f) Premier shall, as soon as practicable after the
Closing Date, prepare and transmit at Premier's
expense to each of the obligors on Office Loans
transferred to Premier pursuant to this Agreement a
notice to the effect that the loan has been
transferred and directing that payment be made to
Premier at the address specified by Premier, with
Premier'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 Premier 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
Premier pursuant to this Agreement has been reduced
by BANK ONE 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 BANK
ONE after the day immediately preceding the Closing
Date, the asset value represented by the loan
transferred shall be correspondingly increased and an
amount in cash equal to such increase shall be
promptly paid by Premier to BANK ONE.
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(h) Premier shall use its best efforts to cooperate
with BANK ONE in assuring an orderly transition of
ownership of the Assets and responsibility for the
liabilities, including the Deposit Liabilities,
assumed by Premier hereunder.
7.02 TRANSITIONAL ACTIONS BY BANK ONE. After the Closing, unless
another time is otherwise indicated:
(a) BANK ONE shall use its best efforts to cooperate with
Premier in assuring an orderly transition of
ownership of the Assets and responsibility for the
liabilities, including the Deposit Liabilities,
assumed by Premier hereunder.
(b) BANK ONE'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 shall be as set forth in this
Section 7.02(b). As soon as practicable following
the date of this Agreement, BANK ONE shall provide
Premier 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, BANK ONE shall provide to
Premier file formats relating to the Accounts and
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
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(non-compressed data) or on nine channel 6250 B.P.I.
EBCIDIC formatted tape. BANK ONE represents and
warrants that the information contained in such file
formats or on such tapes is accurate and correct in
all material respects as of the time given. By not
later than 2:00 P.M. local Columbus, Ohio, time of
the day immediately following the Closing Date, BANK
ONE shall make available for Premier's pick-up at
Columbus, Ohio, tapes containing all pertinent data
and descriptive information relating to the Accounts
which is then available to BANK ONE, which tapes
shall constitute BANK ONE's records maintained as of
and current to the close of business on the Closing
Date with respect to the Accounts. BANK ONE shall
bear all costs and expenses relating to the
performance of its obligations pursuant to this
Section 7.02(b).
(c) Prior to the Closing Date, BANK ONE shall cooperate
with Premier, at Premier's expense and at no expense
to BANK ONE, in making Transferred Employees
available at reasonable times for whatever program of
training Premier deems advisable; PROVIDED, HOWEVER,
that Premier 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. Premier
shall make request of BANK ONE for training
opportunities prior to the Closing Date. Such
requests, which shall specify the time, duration and
place of such training, must be approved by BANK ONE.
Such approvals will not be unreasonably withheld by
BANK ONE.
(d) BANK ONE shall cooperate with and permit Premier, at
Premier's option and expense and at no expense to
BANK ONE, to make provision for the
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installation of teller equipment in the Offices;
PROVIDED, HOWEVER, that Premier 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 BANK ONE or the Offices.
(e) BANK ONE shall resign as custodian of each IRA
account maintained at the Offices and assign the
custodianship of such accounts to Premier upon
Closing.
(f) Not sooner than one (1) business day prior to the
Closing nor later than the close of business on the
Closing Date, BANK ONE shall terminate its debit card
service and convert and change over its direct
deposit or payroll and retirement payments service
for the Deposit Accounts from BANK ONE to Premier.
Such terminations will be preceded by the notice
described in Section 7.01(b) herein.
(g) Not later than the opening of business on the first
business day after the Closing Date, BANK ONE and
Premier shall provide the Federal Reserve Bank of
Cleveland 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"). Premier 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.
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In the event 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 Premier with
the result that such Paper Items are presented to
BANK ONE, by not later than 1:00 p.m. local time of
each business day following the Closing and
continuing for one hundred twenty (120) days after
the Closing, BANK ONE will make available to Premier
for pick up from BANK ONE's offices or the offices of
BANK ONE's agent and/or processor at Brecksville,
Ohio, and/or at Painesville, Ohio, all of the Paper
Items which are received by BANK ONE from the Federal
Reserve Bank of Cleveland and/or any regional or
local clearinghouse during the morning of each such
business day on an "as-received basis." At the same
time BANK ONE shall also make available to Premier
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 BANK ONE for each of the Deposit
Accounts and/or the Office Loans. Each business day
BANK ONE will endeavor to see that the sum of (a) the
actual Paper Items provided to Premier plus (b) all
ACH items and ATM transactions captured by BANK ONE
in its information and records balance with the sum
of (c) the information and records, including but not
limited to systems printouts, provided by BANK ONE
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.
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BANK ONE shall provide the foregoing at no charge to
Premier except that Premier shall pay any charges
assessed to BANK ONE by the Federal Reserve Bank of
Cleveland, a national or local clearinghouse and/or
BANK ONE's agent and/or processor to the extent such
assessments relate to the Deposit Accounts. Premier
shall be responsible for pick up of the data to be
provided by BANK ONE.
BANK ONE and Premier shall arrange for appropriate
daily settlement with one another in order that the
transmission of all monies associated with the
matters set forth in this Section 7.02(g) might be
effected promptly.
BANK ONE shall not be liable to Premier for any
failure to provide the data required by this Section
7.02(g) to the extent any such failure results from
causes beyond BANK ONE's control including war,
strike or other labor disputes, acts of God, errors
or failures of the Federal Reserve Bank of Cleveland
and/or a participating regional or local
clearinghouse, or equipment failure or other
emergency wherein BANK ONE and/or its agent processor
has been unable to process inclearings from the
Federal Reserve Bank of Cleveland or such
clearinghouse.
(h) BANK ONE 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, notify all depositors of the Offices
and all borrowers of any Office Loan by letter
acceptable to Premier, produced in, if appropriate,
several similar, but different forms calculated to
provide necessary and
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specific information to the owners of particular
types of accounts and/or loans, of Premier'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 BANK ONE deposit-related
services and/or BANK ONE'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 BANK ONE.
(i) For a period of sixty (60) days after the Closing
Date, BANK ONE will forward to Premier, within two
(2) business days of receipt, loan payments received
by BANK ONE with respect to the Office Loans. Premier
will forward payments due BANK ONE with respect to
any loans not otherwise assigned to Premier pursuant
to this Agreement, to BANK ONE not later than two (2)
business days following date of receipt by Premier.
Premier and BANK ONE further agree to refer customers
to the offices of the other when such customers
present payments over the counter to the party not
holding their respective loan.
(j) ACCOUNT STATEMENTS. At BANK ONE's cost, BANK ONE shall
issue, as of the calendar day immediately preceding
the Closing Date, standard account statements for
each NOW and checking account included in the Deposit
Liabilities. Passbook transaction information
that has not been posted to a passbook will be passed
by BANK ONE to Premier via magnetic tape. Premier
shall be responsible for posting on passbooks the
transactions reflected on such magnetic tape for
passbook accounts.
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(k) INTEREST REPORTING. BANK ONE shall report from January
1, 1996, through the Closing Date, and Premier shall
report from the Closing Date through December 31,
1996, all interest credited to, interest
premiums paid on, interest withheld from, and early
withdrawal penalties charged to the Deposit Accounts.
Such reports shall be made to the holders of Deposit
Liabilities and to the applicable federal and state
regulatory agencies.
(l) WITHHOLDING. On or before the Closing Date, BANK ONE
shall deliver to Premier a computer listing of a
"B" notices (TINS do not match) and "C" notices
(under-reporting/IRS imposed withholdings) issued by
the Internal Revenue Service ("IRS") relating to such
Deposit Accounts. Following the Closing Date, BANK
ONE shall immediately deliver to Premier (i) any and
all similar notices regarding such Deposit Accounts
received from the IRS, and (ii) all notices received
from the IRS releasing withholding restrictions on
such Deposit Accounts. Any amounts required by any
governmental agency to be withheld from such Deposit
Accounts ( the "Withholding Obligations") or any
penalties imposed by any governmental agency in
conjunction therewith shall be handled as follows;
a) Any Withholding Obligations required to be
remitted to the appropriate governmental agency on or
prior to the Closing Date will be withheld and
remitted by BANK ONE, and any other sums withheld
by BANK ONE pursuant to the Withholding Obligations
prior to the Closing Date shall also be remitted by
BANK ONE to the appropriate governmental agency on or
prior to the time they are due;
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b) Any Withholding Obligations required to be
remitted to the appropriate governmental agency
after the Closing Date with respect to Withholding
Obligations after the Closing Date shall be withheld
and remitted by Premier. Within two (2) business days
of receipt of any such notice by BANK ONE, BANK ONE
shall notify Premier and Premier shall comply with
the requirements of such notice;
c) Any penalties described on "B" notices from the
IRS which relate to the Deposit Accounts and which
are received by BANK ONE prior to the Closing Date
will be paid by BANK ONE promptly upon receipt of
the notice, providing such penalty assessment
resulted from BANK ONE's acts, policies or omissions,
and any efforts to reduce such penalties shall be the
responsibility of BANK ONE;
d) Any penalties described on "B" notices from the
IRS which relate to the Deposit Accounts and which
are received by Premier after the Closing Date shall
be paid by Premier promptly upon receipt of the
notice, providing such penalty assessment resulted
from Premier's acts, policies or omissions, and any
efforts to reduce such penalties shall be the
responsibility of Premier; and
e) Any penalties assessed due to information missing
from information filings regarding the Deposit
Accounts, including, without limitation, 1099 forms,
shall be paid by BANK ONE promptly upon receipt of
the notice providing such penalty assessment resulted
from BANK ONE's acts, policies or omissions prior to
the Closing Date, and any efforts to reduce such
penalties shall be the responsibility of BANK ONE.
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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 Premier.
Overdrafts approved with respect to ledger dates more than
four (4) business days prior to the Closing Date will be the
responsibility and risk of BANK ONE. Overdrafts approved with
respect to ledger dates during the period beginning four (4)
business days prior to the Closing Date through the Closing
Date, inclusive, will initially be the responsibility and risk
of Premier (other than overdrafts of customers who are
specifically identified in writing by Premier to BANK ONE not
less than four (4) business days prior to the Closing Date);
provided, however, that Premier shall have the right to
retransfer any such overdrafts back to BANK ONE for BANK ONE's
responsibility and at its risk within six (6) days following
the Closing Date, and BANK ONE will repurchase all rights in
respect of such overdrafts from Premier for the amount of each
such overdraft outstanding at the time it is retransferred
back to BANK ONE less the amount of the Acquisition
Consideration paid by Premier to BANK ONE attributable to such
overdrafts; provided, however, that Premier shall have closed
all accounts on which each such overdraft exists not later
than the date of such retransfer.
7.04 ATMS.
(a) BANK ONE shall provide to Premier 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, address, card number,
card status (open, closed or blocked), personal
identification number ("PIN"), withdrawal limits, the
Deposit Accounts activated by, accessible to or
committed to such cards,
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issue dates and/or open dates, last transaction
dates, expiration dates and social security numbers
as to all ATM cards issued to customers of the BANK
ONE Offices whose accounts are included in the BANK
ONE Deposit Liabilities transferred hereunder (the
"ATM Cards"). BANK ONE agrees to notify its
processor to deactivate the operation of the BANK ONE
ATM Cards completely or to deactivate or disconnect
the Deposit Accounts from such BANK ONE ATM Cards no
later than the business day cutoff on the date prior
to the Closing Date so that all activity generated by
the BANK ONE ATM Cards shall have settled prior to
the Closing Date. All transactions and activity
related to the BANK ONE ATM Cards following the
Closing Date which are received or forwarded to BANK
ONE will be returned by BANK ONE to its processor for
forwarding to Premier or will be accepted and
forwarded by BANK ONE to Premier along with all
corresponding funds. BANK ONE thereafter agrees to
immediately notify its processor to deactivate such
ATM Cards and to forward all transactions related
thereto directly to Premier.
(b) BANK ONE 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, Premier
shall reconfigure the ATMs to its standards for
activation after the business day cutoff on the
Closing Date.
(c) Premier and BANK ONE 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 BANK ONE and all transactions originated
after the Closing Date shall be for the account of
Premier. A post closing adjustment shall be made in
the
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manner set forth in Section 6.04 hereof to reflect all
such transactions which cannot be reasonably
calculated as of the Closing.
7.05 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.
8. GENERAL COVENANTS AND INDEMNIFICATION.
--------------------------------------
8.01 CONFIDENTIALITY OBLIGATIONS OF PREMIER. From and after the
date hereof, Premier and its affiliates and parent company
shall treat all information received from BANK ONE concerning
the business, assets, operations, and financial condition of
BANK ONE (including without limitation the Offices), as
confidential, unless and to the extent that Premier can
demonstrate that such information was already known to Premier
and its affiliates, if any, or in the public domain or
received from a third person not known by Premier to be under
any obligation to BANK ONE; and Premier 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,
Premier 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 BANK ONE in
connection with the transactions contemplated hereby. The
covenants of Premier 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;
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PROVIDED, HOWEVER, that neither Premier nor any of its
affiliates shall be deemed to have violated the covenants set
forth in this Section 8.01 if Premier 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 BANK ONE that all information
provided to Premier related to this purchase and assumption
transaction may be provided to Premier's affiliates for the
purpose of consummating the transaction which is the subject
of this Agreement.
8.02 CONFIDENTIALITY OBLIGATIONS OF BANK ONE. From and after the
date hereof, BANK ONE, its affiliates and its parent
corporation shall treat all information received from Premier
concerning Premier's business, assets, operations, and
financial condition as confidential, unless and to the extent
BANK ONE can demonstrate that such information was already
known to BANK ONE or its affiliates or in the public domain,
and BANK ONE 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, BANK ONE shall 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 Premier in
connection with the transactions contemplated hereby. The
covenants of BANK ONE contained in this Section 8.02 are of
the essence and shall survive any termination of this
Agreement; PROVIDED, HOWEVER, that neither BANK ONE nor any of
its affiliates shall be deemed to have violated the covenants
set forth in this Section 8.02 if BANK ONE 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
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Premier that all information provided to BANK ONE related to
this purchase and assumption transaction may be provided to
Banc One Corporation and BANK ONE's affiliates for the purpose
of consummating the transaction which is the subject of this
Agreement.
8.03 INDEMNIFICATION BY BANK ONE. From and after the Closing Date,
BANK ONE shall indemnify, hold harmless, and defend Premier
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 or Office Loans of the Offices;
and BANK ONE shall further indemnify, hold harmless, and
defend Premier from and against all losses and liabilities,
including reasonable attorneys' fees and expenses, arising out
of any actions, suits, or proceedings commenced on or after
the Closing to the extent the same relate to operations at the
Offices and/or the Deposit Liabilities or Office Loans prior
to the Closing. The obligations of BANK ONE under this
Section 8.03 shall be contingent upon Premier giving BANK ONE
written notice (i) of receipt by Premier 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 Premier, 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 days of
the receipt by Premier of any such process or pleadings or any
oral or written notice of the assertion of any
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such claims or demands. BANK ONE shall have the right to take
over Premier's defense in any such actions, suits, or
proceedings through counsel selected by BANK ONE, 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 obligations of BANK ONE
pursuant to this Section 8.03 shall survive the Closing.
8.04 INDEMNIFICATION BY PREMIER. From and after the Closing Date,
Premier shall indemnify, hold harmless and defend BANK ONE
from and against all claims, losses, liabilities, demands and
obligations, including without limitation reasonable
attorneys' fees and operating expenses which Premier may
receive, suffer, or incur in connection with (i) any losses
incurred by BANK ONE related to BANK ONE's compliance with
instructions from Premier made pursuant to Section 7.04 of
this Agreement and not related to any negligence or
malfeasance on the part of BANK ONE 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 Premier under this Section
8.04 shall be contingent upon BANK ONE giving Premier written
notice (i) of the receipt by BANK ONE 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 Premier on or after the Closing,
including, to the extent known to BANK ONE, 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
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preceding sentence shall be given within fifteen (15) days of
the receipt by BANK ONE of any such process or pleadings or
any oral or written notice of the assertion of any such claims
or demands. Premier shall have the right to take over BANK
ONE's defense in any such actions, suits, or proceedings
through counsel selected by Premier, 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 obligations of Premier pursuant to this Section
8.04 shall survive the Closing.
8.05 SOLICITATION OF CUSTOMERS BY PREMIER PRIOR TO CLOSING. At any
time prior to the Closing Date, Premier will not, and will not
permit any of its affiliates, if any, to conduct any
marketing, media or customer solicitation campaign which is
specifically targeted to induce customers whose Deposit
Account liabilities are to be assumed or Office Loans are to
be acquired by Premier pursuant to this Agreement to
discontinue their account relationships with BANK ONE, except
as may occur in connection with advertising or solicitations
directed to the public generally. Additionally, at any time
prior to the Closing, Premier shall not offer to pay on any
transaction accounts or any new or renewal savings accounts or
certificates of deposits, rates of interest greater than those
offered or then being paid on similar accounts for like term
and amount by the main office of Premier.
8.06 SOLICITATION OF CUSTOMERS BY BANK ONE AFTER THE CLOSING. From
the date of this Agreement and for six (6) months following
the Closing Date, BANK ONE will not, and BANK ONE will not
permit any of its affiliates, including the directors,
officers, employees or principal shareholders of BANK ONE, to
directly compete for or solicit deposit accounts from
customers whose Deposit Liabilities and/or Office Loans are
assumed or acquired by Premier pursuant to
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this Agreement, except as may occur in connection with (i)
advertising or solicitations directed to the public generally,
(ii) solicitations outside Lorain County, Ohio and (iii)
BANK ONE customers with a banking relationship with BANK ONE
at offices other than the Offices as of the Closing Date.
8.07 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, BANK ONE agrees to
execute and deliver such deeds, bills of sale,
acknowledgments, and other instruments of conveyance and
transfer as, in the reasonable judgment of Premier, shall be
necessary and appropriate to vest in Premier the legal and
equitable title to the Assets of BANK ONE being conveyed to
Premier hereunder. The covenants of each of the parties
hereto pursuant to this Section 8.07 shall survive the
Closing.
8.08 OPERATION OF THE OFFICES. Except as otherwise provided in
this Agreement, neither BANK ONE, nor its subsidiaries,
affiliates or 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 Premier 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. As soon as possible after the Closing Date, Premier
shall change the legal name of the Offices and, except for any
documents or materials in possession of the customers of the
Offices (including but not limited to deposit tickets and
checks),
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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 "BANK ONE" or "BANC ONE." Preceding the
Closing, BANK ONE shall cooperate with any reasonable requests
of Premier directed to obtaining specifications for the
procurement of new signs of Premier's choosing so that Premier
is in a position to install new signs immediately following
the close of business on the Closing Date; PROVIDED, HOWEVER,
that Premier's receipt of all sign specifications shall be
obtained by Premier in a manner that does not significantly
interfere with the normal business activities and operations
of the Offices, and further provided that the procurement of
all new signs shall be at the sole and exclusive expense of
Premier. As indicated in Section 1.02(c), BANK ONE will
retain its signs located at the Offices. If removed by
Premier in conjunction with its installation of new signs,
Premier shall obtain BANK ONE's approval for such removal and
shall insure that said signs are removed without damaging
them. It is understood by the parties hereto that, with the
exception of the signs themselves, all mounting facilities for
the signs shall be considered as fixtures or as part of the
Fixed Assets.
8.09 INFORMATION AFTER CLOSING. For a period of seven (7) years
following the Closing, upon written request of BANK ONE to
Premier or Premier to BANK ONE, 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
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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 request.
8.10 SURVIVAL OF COVENANTS. The obligations and covenants of the
parties under this Section 8 shall survive the Closing.
8.11 INDIVIDUAL RETIREMENT ACCOUNTS. All Individual Retirement
Accounts related to the Offices that shall not have become
IRAs by the close of business on the 30th day following the
Closing shall not be assigned by BANK ONE to Premier or
assumed by Premier. BANK ONE may thereafter, at its option,
elect to retain such Individual Retirement Accounts, advise
the account holders that it has withdrawn its resignation as
custodian or transfer the amount in such Individual Retirement
Accounts to the account holders. Any Acquisition Consideration
paid by Premier for any Individual Retirement Accounts not
assigned by BANK ONE to Premier shall be refunded to Premier
not later than the 35th day following the Closing.
8.12 COVENANT NOT TO COMPETE. From and after the Closing and for a
period of one (1) year following the Closing Date, BANK ONE
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 situated within a radius of one
mile of any Office (the "Protected Area" in this subsection),
for the purpose of making loans, accepting deposits or cashing
checks; provided, however, that BANK ONE's direct or indirect
performance of any of the foregoing activities within the
Protected Area as a result of the acquisition by BANK ONE or
any affiliate or its parent holding company of an office or
offices of, or merger with or acquisition
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by or of, a financial institution or financial institution
holding company engaging in such activities within the
Protected Area, or the assumption of deposits or acquisition
of loans therefrom (including, without limitation, any
deposits or loans assumed, transferred, or otherwise acquired
from the Federal Deposit Insurance Corporation, the Resolution
Trust Corporation, or any successor thereof whether in
the capacity of conservator or receiver) shall not be deemed
a breach of the foregoing, nor shall the establishment by
BANK ONE of an ATM at any office of BANK ONE within the
Protected Area.
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 BANK ONE and Premier.
9.02 TERMINATION BY BANK ONE. 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 BANK
ONE:
(a) in the event of a material breach by Premier 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 BANK ONE;
or
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(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 BANK ONE, with the
advice of counsel, that a regulatory approval
required for consummation of the Acquisition will not
be obtained; or
(d) on or after March 31, 1996, if the Closing has not
then occurred.
9.03 TERMINATION BY PREMIER. 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
Premier:
(a) in the event of a material breach by BANK ONE 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 Premier;
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 Premier, with the advice of
counsel, that a regulatory approval required for
consummation of the Acquisition will not be obtained;
or
(e) on or after March 31, 1996, if the Closing has not
then occurred.
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9.04 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.
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 BANK ONE or
Premier 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 BANK ONE and Premier
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
warranty deeds delivered by BANK ONE to Premier at
the Closing;
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(b) those representations and warranties contained in any
bill of sale relating to the Assets delivered by BANK
ONE to Premier at Closing;
(c) those representations and warranties contained in any
instrument of assumption or in any Certificate in the
forms of SCHEDULE I and SCHEDULE O, respectively,
attached hereto and delivered by Premier to BANK ONE
at the Closing;
(d) those representations and warranties contained in any
Certificate in the form of SCHEDULE K attached
hereto, delivered by BANK ONE to Premier at the
Closing; and
(e) those representations and warranties of BANK ONE
contained in Section 3.01(o) of this Agreement.
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;
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(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.
If to BANK ONE:
Bank One, Cleveland, National Association
600 Superior Ave.
Suite 200
Cleveland, Ohio 44114
Attention: Mr. Ronald A. Richardson,
Chief Financial Officer
With a copy to:
BANC ONE CORPORATION
Attention: Steven A. Bennett
Senior Vice President
100 East Broad Street
Columbus, Ohio 43271-0158
If to Premier:
CoBancorp Inc. and
PREMIERBank & Trust
124 Middle Ave.
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Elyria, Ohio 44036-2001
Attention: Mr. John S. Kreigbaum,
President and Chief Executive Officer
With a copy to:
Francis X. Grady, Esq.
Grady and Associates
Attorneys and Counselors at Law
1468 West Ninth Street, Suite 620
Cleveland, Ohio 44113-1220
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.
10.06 PARTIES IN INTEREST: ASSIGNMENT; AMENDMENT. 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
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,
and this Agreement cannot be amended or modified, except by a
written agreement executed by the parties hereto or their
respective 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.
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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 Premier is
closed in accordance with the laws of the State of
Ohio or the United States of America. 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.
(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 five standard exceptions appearing
as SCHEDULE B items in a standard ALTA owners or
leasehold title insurance policy, and any other
exceptions, restrictions, easements, rights of way,
and encumbrances referenced in the Title Commitment
delivered by BANK ONE to Premier 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
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cases of Owned Real Estate excluding those which
secure borrowed money, except to the extent that BANK
ONE may, at its sole discretion, have discharged on
or prior to the Closing Date those liens,
imperfections in title, charges, easements,
restrictions, and encumbrances that are dischargeable
solely by payment of a liquidated sum) 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 Premier 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.
(f) The term "subsidiary" shall mean a corporation,
partnership, limited liability company, joint
venture, or other business organization more than
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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 BANK ONE and Premier 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. BANK ONE and Premier shall approve the form
and substance of any press release of any matters relating to
this Agreement issued by the other.
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 Ohio
and the banking laws of the United States.
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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. Premier and BANK ONE agree that they will file
applicable tax returns and other related schedules and
documents based on the allocations in this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective officers thereunto duly authorized, all as of the
date first above written.
Bank One, Cleveland,
ATTEST: National Association
/s/ Larry D. Randall By: /s/ Ronald A. Richardson
- -------------------- -------------------------------------
Its: Chief Financial Officer
-------------------------------------
ATTEST: PREMIERBank & Trust
/s/ Lois E. Gunning By: /s/ John S. Kreighbaum
- -------------------- -------------------------------------
Its: President and Chief Executive Officer
-------------------------------------
ATTEST: CoBancorp Inc.
/s/ Lois E. Gunning By: /s/ John S. Kreighbaum
- -------------------- -------------------------------------
Its: President and Chief Executive Officer
-------------------------------------
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AMENDMENT TO
OFFICE PURCHASE AND ASSUMPTION AGREEMENT
This Amendment to the Office Purchase and Assumption Agreement dated as of
November 10, 1995 (the "Agreement) is made and entered into by and between
PREMIERBank & Trust, an Ohio-chartered state member bank ("Premier"), and Bank
One, Cleveland, N.A. ("Bank One").
WHEREAS, Premier and Bank One entered into the Agreement regarding the
transfer to Premier of certain deposit liabilities and other liabilities and
assets associated with eleven Lorain County branch offices of Bank One; and
WHEREAS, Premier and Bank One desire to make certain amendments to the
Agreement;
NOW, THEREFORE, in consideration of the foregoing and the terms and
conditions contained herein and in the Agreement, the parties agree as follows:
1. The Agreement is hereby amended as follows:
(i) The reference to "twenty-five days" in the third line of Section
7.01(b) is deleted and "fifteen days" is substituted in its place;
and
(ii) The reference to "twenty days" in the third line of Section
7.02(h) is deleted and "eleven days" is substituted in its place;
2. Except as expressly set forth herein, all of the terms and conditions of
the Agreement shall remain unaffected. Capitalized terms used herein and
not otherwise defined shall have the meanings given to them in the
Agreement.
IN WITNESS WHEREOF, the parties have caused the foregoing Amendment to Office
Purchase and Assumption Agreement to be executed as of the 10th day of January,
1996.
PREMIERBANK & TRUST
By: /S/ John S. Kreighbaum
-----------------------------------
President & Chief Executive Officer
COBANCORP INC.
By: /S/ John S. Kreighbaum
-----------------------------------
President & Chief Executive Officer
BANK ONE, CLEVELAND, N.A.
By: /S/ Ronald A. Richardson
-----------------------------------
Chief Financial Officer
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SECOND AMENDMENT TO
OFFICE PURCHASE AND ASSUMPTION AGREEMENT
This Second Amendment to the Office Purchase and Assumption Agreement dated
as of November 10, 1995 and as amended (the "Agreement") is made and entered
into by and among PREMIERBank & Trust, an Ohio-chartered state member bank
("Premier"), CoBancorp Inc., an Ohio corporation ("CoBancorp") and Bank One,
Cleveland, N.A. ("Bank One").
WHEREAS, Premier, CoBancorp and Bank One entered into the Agreement regarding
the transfer to Premier of certain deposit liabilities and other liabilities
and assets associated with eleven Lorain County branch offices of Bank One; and
WHEREAS, the Agreement contemplates, among other things, the acquisition by
Premier from Bank One of the fee title ownership of the Owned Real Estate; and
WHEREAS, there are three outlot parcels relative to the Bank One Kansas
branch; and
WHEREAS, outlot parcel numbers 010, 011, and 013 are not contiguous to the
Kansas branch (the "Kansas Outlots"); and
WHEREAS, outlot parcel numbers 041 and 048 are not contiguous to the Oberlin
branch (the "Oberlin Outlots"); and
WHEREAS, Premier desires to proceed with the substance of the transaction
contemplated by the Agreement but does not wish to take fee title at the
Closing to the Kansas Outlots and the Oberlin Outlots pending resolution of
concerns about permissible bank premises investment; and
WHEREAS, pursuant to the terms of Sections 1.02, 1.03 and Schedule D of the
Agreement, Premier agrees to assume certain contractual liabilities of Bank One
known as the Assumed Contracts; and
WHEREAS, Premier has notified Bank One of its intent not to assume the
Assumed Contracts at Closing; and
WHEREAS, the parties desire to make certain amendments to the Agreement;
NOW, THEREFORE, in consideration of the foregoing and the terms and
conditions contained herein and in the Agreement, the parties agree as follows:
1. GENERAL AMENDMENT WITH RESPECT TO PURCHASE OF OWNED REAL ESTATE COMPRISING
THE KANSAS OUTLOTS AND OBERLIN OUTLOTS. All provisions in the Agreement
relating to the purchase by Premier from Bank One of the Owned Real Estate
relative to the Kansas Outlots and the Oberlin Outlots at Closing shall be
suspended for a period of ninety (90) days from the Closing Date and shall
not be applicable or effective as of or conditions to the Closing, but
shall again be
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applicable and effective as of the date, if any, that Premier and Bank One
agree that Premier shall purchase the Kansas Outlots or the Oberlin
Outlots in accordance herewith. Without limiting the generality of the
foregoing, the following sections of the Agreement, to the extent that
they relate to the purchase by Premier from Bank One of the Kansas Outlots
and the Oberlin Outlots at Closing, are hereby suspended and waived as
conditions to Closing: Section 1.01(a), Section 1.01(e), Section 1.02(a),
Section 1.03(a), Section 1.04(a)(ii), Section 2.01(c), Section 5.02(g),
Section 5.03, Section 6.02(b), Section 6.04, Schedule A and Schedule S.
Anything to the contrary herein or in the Agreement notwithstanding,
Premier shall notify Bank One in writing not later than 30 days following
the Closing Date in the event that Premier desires to acquire (i) all of
the Kansas Outlots or (ii) the Oberlin Outlots. Notice shall be provided
in the manner set forth for notice under the Agreement and such Kansas
Outlots or Oberlin Outlots shall be deemed Owned Real Estate as defined by
the Agreement. Bank One shall then have a period of 30 days from the date
of receipt of such notice to deliver Title Commitments for the Kansas
Outlots or the Oberlin Outlots to Premier in accordance with the
requirements of Owned Real Estate under Section 2.01(c) of the Agreement
and a period of 30 days from the delivery of the Title Commitments to
Premier to transfer its right, title and interest in and to the Kansas
Outlots or the Oberlin Outlots to Premier in the same manner as provided
for transfer of Owned Real Estate under the terms of the Agreement except
that: 1) the Closing Date with respect to such Kansas Outlots or Oberlin
Outlots shall be the date of Closing with respect to same, 2) upon
issuance of such notice by Premier, Premier shall be deemed to have
offered to purchase such Kansas Outlots or Oberlin Outlots in accordance
with the terms of the Agreement and this amendment and to have waived any
right to inspection of the subject Kansas Outlots or Oberlin Outlots or to
conduct environmental tests of the subject Kansas Outlots or Oberlin
Outlots under Sections 2.01(j) and 3.01(o), respectively, of the
Agreement; and 3) any representations, warranties or covenants of Bank One
with respect to the Kansas Outlots or Oberlin Outlots shall be deemed
amended such that reference to use or conduct of business on such Kansas
Outlots or Oberlin Outlots shall not be deemed to include the conduct of
a branch banking business. Further, any such notice and transfer
following the Closing Date shall not be deemed to extend or otherwise
affect any of the representations, warranties, covenants, duties or
obligations of Bank One under the Agreement except with respect to the
sale and purchase of Kansas Outlots and Oberlin Outlots and as otherwise
expressly set forth herein. In the event that Premier elects to acquire
the Kansas Outlots in accordance herewith, Premier shall pay to Bank One
as consideration for the Kansas Outlots cash in the amount of $6,000 at
Closing of the sale of such Kansas Outlots. Costs and expenses with
respect to the Kansas Outlots or the Oberlin Outlots and the purchase
thereof by Premier shall be the responsibility of the parties and
allocated in the manner provided for Owned Real Estate under the
Agreement. Taxes and any other charges relating to the Kansas Outlots or
the Oberlin Outlots shall be pro-rated to the Closing Date with respect to
the Kansas Outlots or the Oberlin Outlots and allocated in the same
fashion as set forth in the Agreement for Owned Real Estate.
2. EQUITABLE ADJUSTMENT OF PAYMENT. The parties agree to an adjustment of
the Owned Real Estate value at the Closing, as set forth in Exhibit A
attached hereto and incorporated herein by reference to the extent that
the Kansas Outlots are not transferred at the Closing by Bank One to
Premier.
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3. ADJUSTMENT OF ACQUISITION CONSIDERATION FOR OWNED REAL ESTATE. Premier
has provided notice to Bank One of certain concerns of Premier relating to
the Owned Real Estate (the "Concerns" herein), which Bank One neither
admits nor denies exist or constitute Defects as defined in Section
2.01(j) of the Agreement. In consideration of Bank One agreeing to reduce
the Acquisition Consideration by the sum of $62,500 at the Closing,
Premier hereby agrees to waive repair of the Concerns as a condition to
Premier's obligation to consummate the transactions contemplated by the
Agreement and to proceed to Closing notwithstanding the existence of the
Concerns.
4. INDEMNIFICATION ON ASSUMED CONTRACTS. Premier hereby agrees to indemnify
and to hold harmless Bank One and its shareholders, officers, directors
employees, and agents, and its and their successors and assigns
(individually and collectively the "Indemnitees" herein) from and against
any and all liability, loss, cost, and expense, including attorney fees,
arising directly or indirectly as a result of any claims, demands,
actions, or judgments against any such Indemnitee as a result of
termination or attempted termination of the Assumed Contracts including,
but not limited to, any payments, obligations, and/or fees arising in
conjunction with termination of the Assumed Contracts and/or due and
owing any third party under the terms of the Assumed Contracts after the
Closing Date.
5. SURVIVAL OF OTHER PROVISIONS OF AGREEMENT. Except as expressly set forth
herein, all of the terms and conditions of the Agreement shall remain
unaffected. Capitalized terms used herein and not otherwise defined shall
have the meanings given to them in the Agreement.
IN WITNESS WHEREOF, the parties have caused the foregoing Second Amendment to
Office Purchase and Assumption Agreement to be executed as of the 16th day of
February, 1996.
PREMIERBANK & TRUST
By: /S/ John S. Kreighbaum
-----------------------------------
President & Chief Executive Officer
COBANCORP INC.
By: /S/ John S. Kreighbaum
-----------------------------------
President & Chief Executive Officer
BANK ONE, CLEVELAND, N.A.
By: /S/ Ronald A. Richardson
-----------------------------------
Chief Financial Officer