Assumption Agreement Contract

 

1.2.1.        All cash on hand at the Eagle Pass Branch as of the date of Closing (the “Cash”).

 

1.2.2.        All loans, plus accrued but unpaid interest thereon through the date of Closing, coded to the Eagle Pass Branch (the loans, without reduction for the amount of any allowance for loan losses attributable thereto as recorded on the books and records of the Eagle Pass Branch as of the date hereof (the “Allowance for Loan Losses”), to be acquired by Purchaser being herein called the “Loans”). The Loans coded to the Eagle Pass Branch as of September 30, 2006 are listed on Schedule 1.2.2. All of the Loans listed on Schedule 1.2.2, as updated through the Closing, will be transferred to the Purchaser pursuant to the terms hereof.

 

1.2.3.        The furniture, fixtures, equipment, computer hardware, books, office equipment, automobiles and other vehicles and other tangible personal property described or referred to on Schedule 1.2.3, exclusive of (i) all signage and (ii) the contents of safe deposit boxes (herein called the “Personal Property”).

 

1.2.4.        The real property (herein called the “Real Property”) on which the Eagle Pass Branch is located and all improvements to such property, purchased, installed or constructed by or on behalf of Seller and used in connection with the operation or maintenance of the Eagle Pass Branch, without limitation, buildings, structures, parking facilities and drive-in teller facilities, described on Schedule 1.2.4.

 

1.2.5.        The permits, approvals, qualifications, authorization, licenses, consents, certifications and clearances held, used or required in the conduct of the business of the Eagle Pass Branch and any prepaid expenses and security deposits attributable to the operation of the Eagle Pass Branch described or referred to on Schedule 1.2.5 (collectively herein called the “Other Assets”).

 

1.2.6.        The operating records, deposit records, loan records, customer lists and records, Safe Deposit Contracts and Safe Keeping Contracts (as defined below), legal files and records, personnel and payroll records, correspondence and files related to the business of the Eagle Pass Branch, and all original documents, signature cards, checks, certificates, plans, specifications, building permits, certificates of occupancy, governmental licenses for improvements, and architectural documents pertaining to the facilities in which the Eagle Pass Branch is located (the “Books and Records”). It is understood that certain of Seller’s records may be available only in the form of photocopies, film copies, digitally-stored copies or other non-original and non-paper media. Further, it is understood that certain historical records are available only on optical disk or in digital form and are intermingled with other records of Seller (the “Optical Disk Records”). The Optical Disk Records will remain in the possession of Seller; after the date of

 

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Closing, Seller will be obligated to provide printed copies of information contained in the Optical Disk Records solely in accordance with Section 6.18 of this Agreement.

 

1.2.7.        The right to use post office boxes (if any) and right to use telephone numbers used in connection with the Business of the Eagle Pass Branch as described on Schedule 1.2.7.

 

1.2.8         All rights of Seller under safe deposit contracts and leases for the safe deposit boxes located at the Eagle Pass Branch (the “Safe Deposit Contracts”) and all rights of Seller under any contracts relating to Seller’s safekeeping business located at the Eagle Pass Branch (the “Safekeeping Contracts”).

 

1.2.9.        All rights of Seller under express or implied warranties given or made in connection with the Assets, if any.

 

1.2.10       All rights of Seller under leases for real property used in the operation of the Eagle Pass Branch, and under leases for equipment used in connection with the business of the Eagle Pass Branch, as described on Schedule 1.2.10 (the “Leases”).

 

As used herein, the “Eagle Pass Branch Property” shall mean and refer to the Real Property, the Personal Property and the Other Assets. Purchaser has had, and until Closing will have, a full and complete opportunity to inspect all of the Branch Assets. Purchaser acknowledges and agrees that all Branch Assets are being conveyed by Seller to Purchaser AS IS, WHERE IS AND WITH ALL FAULTS and WITHOUT WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, except as specifically set forth in this Agreement. Purchaser and Seller agree that the foregoing shall be included in any conveyance documents.

 

1.3.           Assumed Liabilities . As used in this Agreement, the term “Assumed Liabilities” means only the liabilities and obligations of Seller assumed by Purchaser and described in this Section 1.3 as such items shall exist at the time of the Closing. The Assumed Liabilities include only the following liabilities:

 

1.3.1.       Deposit liabilities (including accrued unpaid interest thereon) coded to the Eagle Pass Branch in the ordinary course of the business of the Seller as of the date of Closing (herein called the “Deposits”) and obligations of the Seller under the terms of the Repurchase Agreement (including accrued unpaid interest thereon) and related Texas State Bank FreedomCash Sweep Agreement described on Schedule 1.3.1 (the “Repurchase Agreement”).

 

1.3.2.       Obligations of Seller which have not been performed prior to the Closing which have arisen in the ordinary course of business relating to the

 

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operation of the Eagle Pass Branch (including specifically letters of credit issued by Seller in the ordinary course of business of the Eagle Pass Branch), and the depository contracts for public entities coded to the Eagle Pass Branch, but in each case only those specifically described in Schedule 1.3.2 which is incorporated herein by this reference for all relevant purposes. In addition, and without limiting the foregoing, the Purchaser and Seller anticipate that, at or prior to the time of Closing, the employment agreement between Texas Regional Bancshares, Inc. (“Texas Regional”) and Sammy Juve (“Juve”) dated June 12, 2006 (the “Juve Employment Contract”) shall be terminated and the Seller and Texas Regional fully released from all liability with respect thereto, and that Juve and Purchaser shall enter into a replacement employment agreement on terms acceptable to Purchaser and Juve. In the event that the Juve Employment Contract is not terminated,

 

(i)             Purchaser shall assume at Closing all of the Seller’s and Texas Regional’s obligations under the Juve Employment Contract;

 

(ii)            neither the Seller nor Texas Regional shall have any further rights or obligations under the Juve Employment Contract; and

 

(iii)           all obligations of Seller and/or Texas Regional under the Juve Employment Contract shall have been fully performed and satisfied through immediately prior to the time of Closing and Purchaser will have no obligation for such obligations (except that Purchaser shall assume any obligation in the Juve Employment Contract for any accrued and unpaid stay-on bonus or any amount payable in respect of the termination of Juve’s employment by Seller, Purchaser and/or Texas Regional).

 

1.4.           Excluded Liabilities. Purchaser shall not assume, and does not hereby assume, any obligation of Seller except as expressly set forth herein. Notwithstanding the foregoing, and without limiting the generality of the foregoing, Purchaser shall not assume any obligations with respect to (i) compensation, including any commissions, accrued compensation or fees to be paid in connection with any employee benefit plan or arrangement or with respect to income or other taxes, except as and to the extent that the same are included in the Assumed Liabilities described or referred to in Section 1.3 above; (ii) all real estate taxes on other real estate and properties carried as in substance foreclosures of Seller, all sales and use, social security and unemployment taxes withheld or collected from employees or customers and all accounts payable and operating expenses, whether or not accrued, for products or services incurred prior to the effective time of the Closing including, but not limited to, salaries, attorneys’ fees and telephone, utility, advertising and public relations expenses, except that to the extent that an adjustment to the purchase price hereunder is made in respect of any such liability or obligation, Purchaser shall assume all liability with respect thereto; (iii) liabilities or obligations with respect to any litigation, suits, claims,

 

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demands or governmental proceedings asserted by third parties against Seller and arising, commenced or resulting from the operations of the Eagle Pass Branch prior to the effective time of the Closing; and (iv) Seller’s cashier checks, money orders, interest checks and expense checks issued prior to Closing, consignments of U.S. Government “E” and “EE” bonds and any and all traveler’s checks.

 

1.5            Purchase Price . Subject to the terms and conditions of this Agreement, and subject to adjustment as provided in Section 1.6 below, the net amount (the “Net Payment”) to be paid by the Purchaser to the Seller for the Assets is an amount equal to the difference between (a) the book value of the Branch Assets (without reduction for any amount of the Allowance for Loan Losses), plus $7,500,000.00, and (b) the book value of the Assumed Liabilities assumed by Purchaser under the terms hereof. If the Net Payment as calculated pursuant to the foregoing is a positive number, the Net Payment shall be paid by wire transfer by Purchaser to Seller to an account designated by Seller at the time of Closing. If the Net Payment as calculated pursuant to the foregoing is a negative number, the Net Payment shall be paid by wire transfer by Seller to Purchaser to an account designated by Purchaser at the time of Closing. The Net Payment shall be allocated to the Branch Assets in accordance with generally accepted accounting principles, consistently applied, and applicable legal requirements including, for tax purposes, applicable requirements of the Internal Revenue Code of 1986, as amended.

 

1.6            Closing Financial Statements. The parties acknowledge that a statement of the assets and liabilities of the Eagle Pass Branch as of the date of Closing (the “Closing Financial Statements”) will not be finalized until after the effective date of Closing. Purchaser and Seller shall cooperate with each other to cause the preparation of such Closing Financial Statements as soon as reasonably practicable following Closing, but in any event such Closing Financial Statements shall be prepared within thirty (30) days following the effective date of Closing. The amount of any and all payments are to be based on the actual Closing Financial Statements, but the transaction may be closed, and the Net Payment to initially be paid pursuant to Section 1.5 above may be paid, on the basis of preliminary data, which in all cases shall represent Seller’s best good faith effort to determine the actual amount of cash balances, book value of loans and other assets to be acquired, and the actual amount of Deposit liabilities and Repurchase Agreement liability to be assumed pursuant to the terms hereof. In the event that the amounts as finally determined indicate that the Net Payment was more or less than would have been paid if data from the Closing Financial Statements had been used, the party receiving any amount in excess of that to which it was due, or paying any amount less than it should have paid, shall immediately pay to the other party the amount of such difference, with interest thereon computed from the effective date of the Closing to the date payment of such difference is made (the “Adjustment Payment Date”) at the mean of the high and low rates quoted for Federal Funds in the Money Rates Column of the Wall Street Journal (the “Applicable Federal Funds Rate”), adjusted as such mean may increase or decrease during the period between the effective date of the Closing and the Adjustment Payment Date, and any applicable allocations shall be adjusted accordingly. If the Purchaser and the Seller disagree as to the final determination of the amount of the Net Payment, the party to whom an additional amount is owed (or who in good faith believes that it is owed an additional amount) may, within sixty (60) days following the effective date of Closing, elect to initiate a review by an

 

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independent accounting firm jointly selected by the Purchaser and the Seller. The Purchaser and the Seller shall provide the independent accounting firm with access to such information as may be reasonably requested by the independent accounting firm to make a final determination of the final amount of the Net Payment. Upon determination of the final amount of the Net Payment, the party receiving any amount in excess of that to which it was due, or paying any amount less than it should have paid, shall pay to the other party the amount of such difference, with interest thereon at the Applicable Federal Funds Rate, within ten days following notice of the determination by the independent accounting firm, and any applicable allocations shall be adjusted accordingly.

 

ARTICLE II

 

Representations and Warranties

 

2.1            Representations and Warranties of Seller . Seller represents and warrants to Purchaser, both as of the date hereof and as of the date of Closing, as follows:

 

2.1.1.        Seller is a Texas state banking association, duly organized and validly existing under the laws of the state of Texas, and has full power and authority (including all licenses, franchises, permits and other governmental authorizations which are legally required) to own its properties and to engage in the business and activities now conducted by the Seller at the Eagle Pass Branch. Seller (i) is duly authorized to conduct a general banking business, in accordance with its charter, subject to the supervision of the Texas Department of Banking and the Board of Governors of the Federal Reserve System and other applicable authorities; (ii) is an insured bank as defined in the Federal Deposit Insurance Act; and (iii) has full power and authority (including all licenses, franchises, permits and other governmental authorizations which are legally required) to engage in the business and activities now conducted by it.

 

2.1.2.       Seller has full corporate power and authority under its Articles of Association, Bylaws and applicable provisions of law to execute, deliver, and perform this Agreement, subject to receipt of applicable regulatory approvals.

 

2.1.3.       The execution, delivery, and performance of this Agreement have been duly authorized by all requisite corporate actions on the part of Seller.

 

2.1.4.       This Agreement is a valid, binding, and legal obligation of Seller, enforceable in accordance with its terms.

 

2.1.5.       Subject to receipt of applicable regulatory approvals, neither the execution and delivery of this Agreement nor Seller’s full performance of Seller’s obligations hereunder will violate or breach, or otherwise constitute or give rise to a default under, the terms or provisions of the Seller’s Articles of Association, Bylaws

 

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or any material contract, commitment, instrument, notice, writ, injunction, order or decree of any court, agency, or other governmental authority or other obligation to which the Seller is a party.

 

2.1.6.        All Loans to be acquired by Purchaser under the terms hereof have been made in the ordinary course of business of Seller and, to the best knowledge of the Seller, and with such exceptions as are not material to the portfolio as a whole, (i) constitute legal, valid and binding obligations of the respective obligors thereof enforceable in accordance with their respective terms except as limited by applicable bankruptcy, insolvency, reorganization and similar laws affecting creditors generally and the availability of injunctive relief, specific performance, and other equitable remedies) and (ii) are not subject to any defenses, offsets or counterclaims that may be asserted against Seller as the present holder thereof. The borrower’s obligations with respect to any Loan coded and classified as a secured Loan in the portfolio to be acquired by the Purchaser under the terms hereof are, to the best knowledge of the Seller, secured by a validly perfected security interest in the collateral specified in the Loan documents in favor of Seller as secured party, having the priority as described in the Loan documents, except for such collateral and perfection exceptions as are not material to the portfolio as a whole. Seller has been charging interest and other amounts due under the Loan documents in accordance with the terms of such documents.

 

2.1.7.        Seller has good and marketable title to all assets and properties, whether real or personal, tangible or intangible, included within the Branch Assets, subject to no liens, mortgages, security interests, encumbrances, easements, title imperfections, or charges of any kind except (i) statutory liens not yet delinquent, (ii) security interests granted to secure deposits of funds by federal, state or other governmental agencies, (iii) easements, restrictions, covenants and other matters of record in the real property records in the county in which such real property is located, and (iv) minor defects and irregularities in title and encumbrances which do not materially impair the use thereof for the purposes for which they are held and such liens, mortgages, security interests, encumbrances and charges as are not, in the aggregate, material to the assets and properties of Seller to be conveyed to the Purchaser under the terms of this Agreement.

 

2.1.8.        No claims have been asserted and no relief has been sought, and to the best knowledge of the Seller no claim is threatened, against Seller, the Eagle Pass Branch, the Eagle Pass Branch Property or the Assumed Liabilities in any pending litigation or governmental proceedings or otherwise which might cause the Seller to be unable to perform Seller’s obligations under this Agreement.

 

2.1.9.        Seller has filed with the appropriate governmental agencies all federal, state and local income, franchise, excise, real and personal property and other tax returns and reports solely related to the Eagle Pass Branch which are

 

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required to be filed prior to the date hereof, and Seller is not delinquent in the payment of any taxes shown on such returns or reports.

 

2.1.10.      Except as set forth in Schedule 2.1.10, with respect to Deposits and the Branch Assets, Seller is not a party to or bound by any written or oral (i) material leases or licenses with respect to any property of the Eagle Pass Branch, real or personal, whether as landlord, tenant, licensor or licensee; (ii) contracts or commitments for capital expenditures to be made at the Eagle Pass Branch; (iii) contracts or options to purchase or sell any real or personal property included, or that would otherwise be included, in the Branch Assets; (iv) agreements or instruments relating to any commitments to loan money or to extend credit by the Eagle Pass Branch, except for commitments to extend credit in the ordinary course of business in amounts of less than $250,000 in any one transaction and $500,000 in the aggregate; or (v) material contracts of the Eagle Pass Branch, other than the foregoing, not made in the ordinary course of business.

 

2.1.11.      Seller has not engaged and is not directly or indirectly obligated to anyone acting as a broker, finder, or in any other similar capacity in connection with Seller’s sale of the Branch Assets, or in connection with any other transaction contemplated by this Agreement.

 

2.1.12.      The financial information concerning the Eagle Pass Branch included in Schedule 2.1.12 is a true presentation of the assets and the liabilities of the Eagle Pass Branch as of September 30, 2006 to be transferred to and assumed by the Purchaser pursuant to the terms hereof, on a pro forma basis as if such transfer were accomplished as of September 30, 2006, and includes a complete listing of all assets and liabilities of the Eagle Pass Branch that would be required to be included in a balance sheet of the assets to be transferred and liabilities to be assumed, prepared in accordance with generally accepted accounting principles (the “Financial Information”).

 

2.1.13.      Since the date of the Financial Information, Seller has conducted its business at the Branch only in the ordinary course and has not, other than in the ordinary course of business consistent with past practices: (i) incurred any obligation or liability, absolute, accrued, contingent or otherwise, whether due or to become due; (ii) mortgaged, pledged or subjected to lien, charge, security interest or any other encumbrance or restriction any of the Assets, other than Permitted Encumbrances and encumbrances to secure public funds deposits; (iii) sold, transferred (including, without limitation, transferred to another location of Seller), leased to others or otherwise disposed of any of the assets of the Branch; (iv) terminated, canceled or surrendered, or received any notice of or threat of termination or cancellation of any contract, lease or other agreement or suffered any damage, destruction or loss (whether or not covered by insurance) which, in any case or in the aggregate, would result in a Material Adverse Change; (v) suffered

 

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any change, event or condition that, in any case or in the aggregate, has had or may result in a Material Adverse Change; or (vi) entered into any agreement or made any commitment to take any of the types of action described in clauses (i) through (v) above.

 

2.1.14.      Except as disclosed in the representations and warranties made hereunder, since the date of the Financial Information, there has been no Material Adverse Change (as defined in Section 5.3.10) nor any event or condition that has had, nor would reasonably be expected to have in the future, a Material Adverse Change, since the date of the Financial Information. No material liabilities affecting the Eagle Pass Branch have been incurred since the date of the Financial Information other than those arising from normal transactions in the ordinary course of business that have been or will be disclosed to Purchaser in writing prior to the Closing.

 

2.2           Representations and Warranties of Purchaser . Purchaser hereby represents and warrants to Seller the following:

 

2.2.1.        Purchaser is a national banking association, duly organized, validly existing, and in good standing under the laws the United States of America. Purchaser has full power and authority (including all licenses, franchises, permits and other governmental authorizations which are legally required) to own its properties and to engage in the business and activities now conducted by it or proposed to be conducted by it upon acquisition of the Eagle Pass Branch, including the business and activities conducted by the Eagle Pass Branch. Purchaser (i) is duly authorized to conduct a general banking business, in accordance with its charter, subject to the supervision of the Comptroller of the Currency and other applicable authorities; (ii) is an insured bank as defined in the Federal Deposit Insurance Act; and (iii) has full power and authority (including all licenses, franchises, permits and other governmental authorizations which are legally required) to engage in the business and activities now conducted by it.

 

2.2.2.        Purchaser has full corporate power and authority under its Articles of Association, Bylaws and applicable provisions of law to execute, deliver, and perform this Agreement, subject to receipt of applicable regulatory approvals. Purchaser is not aware of any reason that Purchaser should not be able to obtain any required regulatory approval.

 

2.2.3.        The execution, delivery, and performance of this Agreement have been duly authorized by all requisite corporate actions on the part of Purchaser.

 

2.2.4.        This Agreement is a valid, binding, and legal obligation of Purchaser, enforceable in accordance with its terms.

 

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2.2.5.        Subject to receipt of applicable regulatory approvals, neither the execution and delivery of this Agreement nor Purchaser’s full performance of Purchaser’s obligations hereunder will violate or breach, or otherwise constitute or give rise to a default under, the terms or provisions of the Purchaser’s Articles of Incorporation, bylaws or any material contract, commitment, instrument, notice, writ, injunction, order or decree of any court, agency, or other governmental authority or other obligation to which the Purchaser is a party.

 

2.2.6.       Purchaser has not engaged and is not directly or indirectly obligated to anyone acting as a broker, finder, or in any other similar capacity in connection with Purchaser’s purchase of the Branch Assets, or in connection with any other transaction contemplated by this Agreement.

 

2.3            No Additional Representations. Neither party is making any representation or warranty to the other concerning the subject matter of this Agreement, except for those that are expressly set forth in this Agreement or in any document executed by such party at the time of Closing.

 

ARTICLE III

 

Actions Before Closing

 

3.1            Investigations and Reviews . Between the date hereof and the Closing, Seller covenants to Purchaser that, to the extent it may legally do so, Seller will afford Purchaser and Purchaser’s counsel, accountants and other representatives access, during normal business hours, to all of the Branch Assets, personnel, accountants, and attorneys related to the business of the Eagle Pass Branch, and will furnish Purchaser during such period with all such information concerning the Eagle Pass Branch and their respective business as Purchaser may reasonably request. Seller will permit Purchaser and its representatives to make abstracts from, or take copies of, the Books and Records as may be reasonably required by Purchaser, and Seller will furnish to Purchaser such information concerning the Eagle Pass Branch, and the Branch Assets and Assumed Liabilities as Purchaser may reasonably request. Purchaser and its consultants, agents and representatives shall have the right, upon reasonable advance notice to Seller (which in all cases shall not be less than three business days notice) and during normal business hours, but not the obligation or responsibility, to inspect the Real Property, including, without limitation, conducting asbestos surveys and sampling, environmental assessments and investigation, and other environmental surveys and analyses including soil and ground sampling (“Environmental Inspections”) at any time prior to the effective date of the Closing.

 

3.2            Interim Conduct of the Business . Seller hereby covenants to Purchaser that, from the date of this Agreement to the Closing, Seller will operate the Eagle Pass Branch only in the ordinary and usual course, in accordance with Seller’s past practices. Without the prior written consent of Purchaser, Seller shall not cause the transfer from the Eagle Pass Branch to Seller’s other

 

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operations of any Loans, Deposits or Employees (as defined in Section 7.1), provided, however, that Seller may transfer Deposits to Seller’s other branch or offices upon the unsolicited request of the depositors.

 

3.3            Required Regulatory Approvals. Purchaser shall file its application with applicable regulatory authorities for acquisition of the Branch Assets and assumption of the Assumed Liabilities and establishment of a branch banking facility at the location of the Eagle Pass Branch as soon as practicable, but not later than thirty (30) days after receipt of all of the information requested by Purchaser from Seller and shall use good faith efforts to obtain any and all required regulatory approvals as promptly as practicable.

 

ARTICLE IV

 

Conditions

 

4.1           Conditions to Purchaser’s Obligations . The obligation of Purchaser to consummate the transactions contemplated by this Agreement is subject to the satisfaction of the following conditions at or prior to the Closing:

 

4.1.1.        Each representation and warranty of Seller contained in this Agreement shall be true, accurate and complete in all material respects as of the date of this Agreement and shall be deemed to have been remade at and as of the date of Closing and shall be true, accurate and complete in all material respects at and as of the date of Closing.

 

4.1.2.       Seller shall have performed and complied in all material respects with all agreements and conditions required by this Agreement to be performed or complied with by Seller prior to or at the Closing and shall have delivered to Purchaser all documents, certificates, and instruments required to be delivered under the terms of this Agreement.

 

4.1.3.        The parties shall have received any regulatory approval which the parties reasonably deem necessary or appropriate to permit the parties to lawfully enter into and consummate the transactions herein described. Without limiting the generality of the foregoing, Purchaser shall have received approval from the Office of the Comptroller of the Currency and any other applicable regulatory authority for the acquisition by the Purchaser of the Eagle Pass Branch and the establishment of a branch bank for the Purchaser at the location of the Eagle Pass Branch.

 

4.1.4.        There shall not have been issued and in effect any injunction or similar legal order prohibiting or restraining consummation of any of the transactions contemplated by this Agreement and no legal action or governmental

 

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investigation which might reasonably be expected to result in any such injunction or order shall be pending or threatened.

 

4.2           Conditions to Seller’s Obligations . The obligation of Seller to consummate the transactions contemplated by this Agreement is subject to the satisfaction of the following conditions at or before the Closing:

 

4.2.1.        Each representation and warranty of Purchaser contained in this Agreement shall be true, accurate and complete in all material respects as of the date of this Agreement and shall be deemed to have been remade at and as of the date of Closing and shall be true, accurate and complete in all material respects at and as of the date of Closing.

 

4.2.2.        Purchaser shall have performed and complied in all material respects with all agreements and conditions required by this Agreement to be performed or complied with by Purchaser prior to or at the Closing and shall have delivered to Seller all documents, certificates, and instruments required to be delivered under the terms of this Agreement.

 

4.2.3.       The parties shall have received any regulatory approval which the parties reasonably deem necessary or appropriate to permit the parties to lawfully enter into and consummate the transactions herein described.

 

4.2.4.        There shall not have been issued and in effect any injunction or similar legal order prohibiting or restraining consummation of any of the transactions contemplated by this Agreement and no legal action or governmental investigation which might reasonably be expected to result in any such injunction or order shall be pending or threatened.

 

4.2.5         The transaction pursuant to which Banco Bilbao Vizcaya Argentaria, S.A. (“BBVA”) shall have acquired Texas Regional shall have been completed and closed.

 

ARTICLE V

 

Closing

 

5.1           Time, Date, and Place of Closing . Provided that all required conditions to closing have been satisfied or waived, the closing of the transactions herein described (herein referred to as the “Closing”) shall occur on the latest of the following dates, or as promptly thereafter as reasonably practicable:

 

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5.1.1.       The thirtieth calendar day after the date of approval of the transaction by the Office of the Comptroller of the Currency, including the related approval for establishment by the Purchaser of a branch bank at the location of the Eagle Pass Branch; or

 

5.1.2.       Such date as may be prescribed by the Office of the Comptroller of the Currency, or by any other federal or state agency or authority pursuant to an applicable federal or state law, order, rule or regulation, prior to which consummation of the transactions provided herein may not be effected; or

 

5.1.3.        The fifth business day following the closing and consummation of the transaction pursuant to which BBVA acquires Texas Regional; or

 

5.1.4.       If the transactions contemplated by this Agreement are being contested in any legal proceeding and Purchaser has elected to contest the same, then the date that such legal proceeding has been brought to a conclusion favorable, in the judgment of Purchaser, to the consummation of the transactions contemplated hereby; or

 

5.1.5.       Such other date as the parties may select by mutual agreement.

 

The Closing shall take place at the office of the Seller located at 3900 North Tenth Street, 11 ^th Floor, McAllen, Texas, or at such other place as the parties may agree in writing. If the Closing shall not have been accomplished on or before May 31, 2007, this Agreement shall, at the election of either party hereto by written notice, terminate and be of no further force or effect. Any such termination which occurs through no fault of any of the parties to this Agreement shall be without liability to any of the parties hereto. This Agreement may be terminated at any time prior to the effective date of Closing by the mutual action of the respective Boards of Directors of the Purchaser and the Seller.

 

5.2            Purchaser’s Obligations . At the Closing, Purchaser shall deliver the following to the Seller (all of