EXHIBIT 2
EXECUTION VERSION
BRANCH PURCHASE AND ASSUMPTION AGREEMENT
DATED AS OF
MARCH 15, 2005
BETWEEN
LIBERTY SAVINGS BANK, FSB
AND
STATE BANK AND TRUST COMPANY
TABLE OF CONTENTS
RECITALS:............................................................................... 1
ARTICLE 1. - CERTAIN DEFINITIONS........................................................ 1
1.1 CERTAIN DEFINITIONS....................................................... 1
ARTICLE II. - THE TRANSACTIONS.......................................................... 8
2.1 TRANSFER AND CONSIDERATION................................................ 8
2.2 BREAK UP FEE.............................................................. 9
2.3 CONSIDERATION FOR ASSUMPTION OF LIABILITIES............................... 10
2.4 AGGREGATE ASSET VALUE AND DEPOSIT PREMIUM................................. 10
2.5 ASSUMPTION OF ▇▇▇ DEPOSITS................................................ 11
2.6 ASSUMPTION OF ▇▇▇▇▇ DEPOSITS.............................................. 11
2.7 ADJUSTMENT OF NET PREPAID EXPENSES/CHARGES................................ 11
2.8 ALLOCATION OF CONSIDERATION............................................... 11
ARTICLE III. - REPRESENTATIONS AND WARRANTIES OF SELLER................................. 12
3.1 CORPORATE ORGANIZATION AND AUTHORITY...................................... 12
3.2 NO CONFLICT; LICENSES AND PERMITS; COMPLIANCE WITH LAWS AND
REGULATIONS............................................................... 12
3.3 APPROVALS AND CONSENTS.................................................... 12
3.4 DEPOSITS.................................................................. 13
3.5 FURNITURE, FIXTURES AND EQUIPMENT......................................... 13
3.6 LOANS..................................................................... 13
3.7 PERSONAL PROPERTY AND SELLER LEASES....................................... 13
3.8 CONTRACTS AND DEFAULTS.................................................... 14
3.9 EMPLOYEE BENEFITS......................................................... 14
3.10 LITIGATION AND LIABILITIES................................................ 14
3.11 REGULATORY MATTERS........................................................ 14
3.12 BROKERS' FEES............................................................. 14
3.13 ENVIRONMENTAL MATTERS..................................................... 14
3.14 COLLECTIVE BARGAINING AGREEMENTS.......................................... 15
3.15 INFORMATION FOR REGULATORY APPROVALS...................................... 15
3.16 ABSENCE OF CERTAIN CHANGES, ETC........................................... 15
3.17 SOLDIERS AND SAILORS CIVIL RELIEF ACT..................................... 15
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ARTICLE IV. - REPRESENTATIONS AND WARRANTIES OF PURCHASER............................... 15
4.1 CORPORATE ORGANIZATION AND AUTHORITY...................................... 15
4.2 NO CONFLICT; LICENSES AND PERMITS; COMPLIANCE WITH LAWS AND
REGULATIONS............................................................... 16
4.3 APPROVALS AND CONSENTS.................................................... 16
4.4 REGULATORY MATTERS........................................................ 16
4.5 BROKERS' FEES............................................................. 16
4.6 LITIGATION AND LIABILITIES................................................ 16
4.7 AGREEMENTS WITH REGULATORY AUTHORITIES.................................... 17
4.8 INFORMATION FOR REGULATORY APPROVALS...................................... 17
4.9 COMMUNITY REINVESTMENT ACT................................................ 17
ARTICLE V. - COVENANTS OF THE PARTIES................................................... 17
5.1 ACTIVITY IN THE ORDINARY COURSE........................................... 17
5.2 ACCESS AND CONFIDENTIALITY................................................ 18
5.3 REGULATORY APPROVALS...................................................... 19
5.4 ENVIRONMENTAL ASSESSMENT REPORTS AND PHYSICAL EXAMINATIONS............... 19
5.5 TITLE TO BRANCH REAL ESTATE............................................... 21
5.6 NOTICES OF DEFAULT........................................................ 21
5.7 DEPOSIT SOLICITATION BY PURCHASER......................................... 22
5.8 PERFORMANCE OF LIABILITIES................................................ 22
5.9 CONTRACTS................................................................. 22
5.10 SELLER LEASES............................................................. 22
5.11 INSURANCE; DESTRUCTION OF OR DAMAGE TO A BRANCH........................... 22
5.12 INTERFERENCE OR DAMAGE.................................................... 22
5.13 ACCOUNT LOANS............................................................. 23
5.14 SAFE DEPOSIT BUSINESS..................................................... 23
5.15 CONDUCT OF BUSINESS....................................................... 23
5.16 FIDUCIARY RELATIONSHIPS................................................... 23
5.17 SOLICITATIONS AND BRANCH LOCATIONS........................................ 23
5.18 "AS IS" CONDITION......................................................... 24
5.19 Deposit Records........................................................... 24
ARTICLE VI. - TRANSITIONAL MATTERS...................................................... 24
6.1 TRANSITIONAL ARRANGEMENTS................................................. 24
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6.2 NOTIFICATION OF DEPOSITORS................................................ 25
6.3 ASSUMPTION OF DEPOSITS.................................................... 25
6.4 PAPER ITEMS............................................................... 26
6.5 RETURNED ITEMS............................................................ 26
6.6 AUTOMATED CLEARING HOUSE CREDIT AND DEBITS................................ 27
6.7 WIRE TRANSFERS............................................................ 27
6.8 ESCHEATABLE DEPOSITS...................................................... 27
6.9 MAINTENANCE OF RECORDS.................................................... 28
6.10 ▇▇▇ AND ▇▇▇▇▇ ACCOUNTS.................................................... 28
6.11 ATM/DEBIT CARDS........................................................... 28
6.12 DATA PROCESSING CONVERSION OF DEPOSITS AND HANDLING OF CERTAIN ITEMS...... 29
6.13 STATEMENT OF ACCOUNTS..................................................... 29
6.14 CONTINUING AVAILABILITY OF RECORDS; ACCOUNT HISTORIES..................... 29
6.15 DEPOSIT COLLATERAL........................................................ 29
6.16 VENDOR RELATIONSHIPS...................................................... 29
6.17 FURTHER ASSURANCES........................................................ 29
ARTICLE VII. - TAXES AND EMPLOYEE BENEFITS.............................................. 30
7.1 PRORATION OF TAXES........................................................ 30
7.2 INTEREST REPORTING AND WITHHOLDING........................................ 30
7.3 SALES AND TRANSFER TAXES, TITLE INSURANCE................................. 31
7.4 ASSISTANCE AND COOPERATION................................................ 31
7.5 EMPLOYEE BENEFITS......................................................... 31
ARTICLE VIII. - CONDITIONS TO CLOSING................................................... 33
8.1 CONDITIONS TO OBLIGATIONS OF PURCHASER.................................... 33
8.2 CONDITIONS TO OBLIGATIONS OF SELLER....................................... 33
ARTICLE IX. - CLOSING PROCEDURES........................................................ 34
9.1 CLOSING DATE AND PLACE.................................................... 34
9.2 PAYMENT DUE AT CLOSING.................................................... 34
9.3 CLOSING DOCUMENTS TO BE DELIVERED OR ACTIONS TO BE TAKEN BY SELLER........ 34
9.4 CLOSING DOCUMENTS TO BE DELIVERED OR ACTIONS TO BE TAKEN BY
PURCHASER................................................................. 36
9.5 POST CLOSING ADJUSTMENTS.................................................. 37
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ARTICLE X. - TERMINATION................................................................ 38
10.1 TERMINATION............................................................... 38
10.2 EFFECT OF TERMINATION..................................................... 39
ARTICLE XI. - INDEMNIFICATION........................................................... 39
11.1 INDEMNIFICATION........................................................... 39
ARTICLE XII.- MISCELLANEOUS............................................................. 41
12.1 SURVIVAL.................................................................. 41
12.2 ASSIGNMENT................................................................ 41
12.3 BINDING EFFECT............................................................ 41
12.4 PUBLIC NOTICE............................................................. 42
12.5 NOTICES................................................................... 42
12.6 INCORPORATION............................................................. 42
12.7 GOVERNING LAW............................................................. 43
12.8 ENTIRE AGREEMENT.......................................................... 43
12.9 COUNTERPARTS.............................................................. 43
12.10 HEADINGS.................................................................. 43
12.11 WAIVER.................................................................... 43
12.12 EXPENSES.................................................................. 43
12.13 COMPUTATION OF INTEREST................................................... 43
12.14 THIRD-PARTY BENEFICIARIES................................................. 43
12.15 SEVERABILITY.............................................................. 43
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EXHIBITS
Exhibit A Branches
Exhibit B Preliminary Settlement Statement
Exhibit C Assignment and Assumption Agreement
Exhibit D ▇▇▇▇ of Sale and Assignment
Exhibit E Retirement Account Transfer Agreement
Exhibit F Form of Seller's Officer's Certificate
Exhibit G Form Purchaser's Officer's Certificate
Exhibit H Final Settlement Statement
Exhibit I Power of Attorney
SCHEDULES
Schedule 1.1(a) Assumed Contracts
Schedule 1.1(b) ATMs
Schedule 1.1(c) Other Liabilities
Schedule 1.1(d) Officers with "Knowledge"
Schedule 1.1(e) Uncollectible Loans
Schedule 3.3 Approvals and Consents
Schedule 3.4 Deposits
Schedule 3.5 Furniture, Fixtures and Equipment
Schedule 3.6 Loans
Schedule 3.10 Litigation and Liabilities
Schedule 3.11 Regulatory Matters
Schedule 3.13 Environmental Matters
Schedule 3.16 Absence of Certain Changes, Etc.
Schedule 4 Exceptions to Purchaser's Representations and Warranties
Schedule 5.1 Planned Improvements
Schedule 6.15 Deposit Collateral
Schedule 7.5(a) Purchaser's Estimate of Employees to be Hired
Schedule 9.3(a)(i) Cash on Hand
Schedule 9.3(a)(ii) Net Prepaid Expenses
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BRANCH PURCHASE AND ASSUMPTION AGREEMENT
BRANCH PURCHASE AND ASSUMPTION AGREEMENT, dated as of March 15, 2005
between Liberty Savings Bank, FSB, a Federal Savings Bank with its principal
offices at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ("Seller"), and State
Bank and Trust Company, an Ohio banking corporation and wholly owned subsidiary
of Rurban Financial Corp., with its principal offices at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ("Purchaser").
RECITALS:
A. Subject to the terms, provisions and conditions set forth herein,
Purchaser wishes to purchase from Seller, and Seller wishes to sell to
Purchaser, certain branch banking locations of Seller located in Lima, Ohio, as
further described herein.
B. Seller desires to sell, and Purchaser desires to acquire, in accordance
with the terms and provisions of this Agreement, certain assets of Seller
associated with the Branches as defined herein.
C. Seller desires to assign to Purchaser, and Purchaser desires to assume
from Seller, in accordance with the terms and provisions of this Agreement,
certain liabilities of Seller associated with the Branches.
NOW, THEREFORE, in consideration of the premises and the mutual promises
and covenants contained herein and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, and intending to
be legally bound hereby, Seller and Purchaser agree as follows:
ARTICLE 1.
CERTAIN DEFINITIONS
1.1 CERTAIN DEFINITIONS. As used in this Agreement, the terms below shall
have the meanings set forth.
"ACCOUNT" means, as of any date, a deposit liability of Seller which is
maintained at the Branches and which is not represented by a certificate of
deposit having a fixed maturity.
"ACCRUED INTEREST" means, at any date, on any Deposits or loans, interest
which has accrued on such Deposits or loans to such date but not yet posted to
such accounts.
"ACCRUED EXPENSES" means the accrued expenses that appear as a liability
in respect of any Branch on the financial statements of Seller prepared in
accordance with Section 2.7.
"AFFILIATE" of a person means any person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such person.
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"AGGREGATE ASSET VALUE" shall have the meaning set forth in Section 2.4.
"AGREEMENT" means this Branch Purchase and Assumption Agreement, including
all schedules, exhibits and addenda as modified, amended or extended from time
to time.
"ALLOCATION" shall have the meaning set forth in Section 2.8.
"APPRAISED VALUE" means the dollar value of the Branch Real Estate
determined in accordance with a market value average of two independent
appraisals performed by certified Ohio appraisers, one each selected
independently by Purchaser and Seller, costs of which would be borne separately
by Purchaser and Seller.
"ASSETS" means the Branch Real Estate and with respect to the Branches,
the Furniture, Fixtures and Equipment, Cash on Hand, Seller Leases, safe deposit
boxes (exclusive of the contents thereof), Prepaid Expenses, the Records, the
Deposit-Related Loans, the Other Loans, the Deposit Collateral, if purchased by
Purchaser pursuant to Section 6.15, valued at the Deposit Collateral Value and
any fees and charges related to the Deposits for periods after, but not before,
Closing including the Prepaid FDIC Insurance Premium.
"ASSUMED CONTRACT" means a Seller Lease, equipment lease or a service or
similar contract that relates to the operations of the Branches, and which
Seller Lease, equipment lease or other contract is set forth on Schedule 1.1 (a)
and will be assumed by Purchaser on the Closing Date.
"ATMs" means all automated teller machines at the Branches as listed on
Schedule 1.1 (b) hereto.
"BRANCH REAL ESTATE" means all real property, Improvements, and interests
therein owned by Seller at which Branches are located, and which includes any
real property or interest subject to a Seller Lease.
"BRANCHES" means each of the branches and other banking offices of Seller
owned by Seller to be acquired by Purchaser under this Agreement, each as
identified on Exhibit A hereto.
"BREAK UP FEE" shall have the meaning set forth in Section 2.2.
"BUSINESS DAY" means a day on which Seller is open for business in the
State of Ohio and which is not a Saturday or Sunday.
"CASH PAYMENT" shall have the meaning set forth in Section 2.3.
"CASH ON HAND" means with respect to the Branches and as of any date, all
cash on hand including ▇▇▇▇▇ cash, vault cash, teller cash, ATM cash, and
prepaid postage, excluding Escrow Balances.
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"CEILING AMOUNT" shall have the meaning set forth in Section 11.1(f).
"CLOSE OF BUSINESS" means the local time that the Branches close to the
public.
"CLOSING" and "CLOSING DATE" refer to the closing for the sale, purchase
and assumption provided for herein to be held at such time and date as provided
for in Article 9 hereof.
"CODE" means the Internal Revenue Code of 1986, as amended.
"CORRESPONDENT ACCOUNT" shall have the meaning set forth in Section
6.1(b).
"DEPOSITS" means with respect to the Branches and as of any date, all
deposit liabilities of Seller that are Accounts or certificates of deposit,
including Accrued Interest and all uncollected items included in depositors'
balances; provided, however, that Deposits shall not include (i) ▇▇▇ Accounts
and ▇▇▇▇▇ Accounts which will not be or have not been transferred to Purchaser
in accordance with Sections 2.5 and 2.6, (ii) any deposit liabilities which, by
law or contract (including the terms of any relevant deposit agreement), either
Purchaser is not permitted to assume or Seller is not permitted to sell,
transfer, assign or otherwise dispose, (iii) any Deposits related to any
Uncollectible Loans or Branch Deposits that have been overdrawn for a
consecutive thirty (30) day period at any time within the twelve (12) months
prior to the Closing Date, (iv) deposits subject to any legal process or
attachment, (v) deposits of Seller benefit plans and Seller's insiders, and (vi)
brokered deposits.
"DEPOSIT COLLATERAL" means securities, loans, or other assets of the
Seller which are pledged to secure Deposits or otherwise subject to an
Encumbrance and function as security for the Deposits. Purchaser shall have the
right to substitute appropriate collateral in accordance with Section 6.15.
"DEPOSIT COLLATERAL SECURITY AGREEMENT" means the instrument giving rise
to the Encumbrance on the Deposit Collateral, or pursuant to which the Deposit
Collateral is pledged to, or otherwise secures, the Deposits.
"DEPOSIT COLLATERAL VALUE" means the Market Value of the Deposit
Collateral as of the Closing Date; provided, however, that for purposes of the
cash payment pursuant to Section 9.2, Deposit Collateral Value shall be equal to
such Market Value as of the Close of Business on the fifth Business Day prior to
Closing.
"DEPOSIT PREMIUM" shall have the meaning set forth in Section 2.4(b).
"DEPOSIT-RELATED LOANS" means with respect to the Branches, loans secured
by deposits in savings accounts or by certificates of deposit and overdrafts in
respect of Transaction Accounts (other than overdrafts extended pursuant to a
formal line of credit or similar arrangement that are secured primarily by
assets other than Deposits).
"EMPLOYEES" means with respect to the Branches, (i) any employee,
including without limitation, those employees who on the Closing Date are on
medical leave, family leave, military
3
leave or personal or pregnancy leave previously identified by the Seller to the
Purchaser as a Branch related employee employed by Seller or its Affiliates on
the date hereof or on Closing Date and (ii) such other employees of Seller as
may be agreed between Seller and Purchaser.
"ENCUMBRANCES" means all mortgages, claims, charges, liens, encumbrances,
easements, limitations, restrictions, commitments and security interests, except
for statutory liens securing payments not yet due, the Seller Leases, liens
incurred in the ordinary course of business, including without limitation liens
in favor of mechanics or materialmen, other liens, charges, security interests,
encumbrances, or such other imperfections of title, which in each case do not
materially and adversely affect the use of the properties or assets subject
thereto or affected thereby or which otherwise do not materially impair business
operations at such properties, and except for obligations pursuant to the
unclaimed property law of the State of Ohio relating to the escheatable
deposits.
"ENVIRONMENTAL LAW" means any Federal, state and local law (whether under
common law, statute, rule, regulation or otherwise), requirement under permits
issued with respect thereto, and other orders, decrees, judgments, directives or
other requirements of a governmental authority relating to the environment or to
a Hazardous Substance.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"ESCROW BALANCES" means amounts held in custody by Seller for insurance
and taxes for or otherwise related to, the Deposit-Related Loans and the Other
Loans.
"EXAMINATIONS" shall have the meaning set forth in Section 5.4.
"FDIC" means the Federal Deposit Insurance Corporation.
"FEDERAL FUNDS RATE" means, on any day, the per annum rate of interest
(rounded upward to the nearest 1/100 of 1 percent) which is the weighted average
of the rates on overnight federal funds transactions arranged on such day or, if
such day is not a banking day, the previous banking day, by federal funds
brokers computed and released by the Federal Reserve Bank of Cleveland (or any
successor) in substantially the same manner as such Federal Reserve Bank
currently computes and releases the weighted average it refers to as the
"Federal Funds Effective Rate" at the date of this Agreement.
"FEDERAL RESERVE BOARD" means the Board of Governors of the Federal
Reserve System.
"FINAL PAYMENT AMOUNT" shall have the meaning set forth in Section 9.5(c).
"FINAL SETTLEMENT STATEMENT" shall have the meaning set forth in Section
9.5(b).
"FLOOR AMOUNT" shall have the meaning set forth in Section 11.1(e).
"FURNITURE, FIXTURES AND EQUIPMENT" means with respect to the Branches,
all furniture, fixtures and equipment that are owned by Seller and also includes
all ATMs and any related
4
equipment as listed on Schedule 3.5; excluding any furniture, fixtures and
equipment owned by a tenant at any Branch Real Estate leased pursuant to a
Seller Lease.
"HAZARDOUS SUBSTANCE" means any chemical, compound, material, mixture or
substance that is now or hereafter defined or listed in any Environmental Laws
as a "hazardous waste," "hazardous substance," "hazardous material," "extremely
hazardous waste," "infectious waste," "toxic substance," "toxic pollutant" or
other formulation intended to define, list, or classify substances by reason of
deleterious properties.
"HIRED EMPLOYEES" shall have the meaning set forth in Section 7.5(a).
"IMPROVEMENTS" means all improvements to the owned real estate in respect
of the Branches purchased, installed or constructed by or on behalf of Seller or
used in connection with the operation or maintenance of any Branch.
"INCLEARING PERIOD" shall have the meaning set forth in Section 6.4(b).
"INDIVIDUAL RETIREMENT ACCOUNT" or "▇▇▇" means an account created by a
trust for the exclusive benefit of any individual or his beneficiaries in
accordance with the provisions of Section 408 of the Code.
"IRS" means the Internal Revenue Service.
"▇▇▇▇▇ ACCOUNT" or "▇▇▇▇▇" means an account created by a trust for the
benefit of employees (some or all of whom are self-employed persons) and that
complies with the provisions of Section 401 of the Code.
"LIABILITIES" means Seller's obligations with respect to the period
following the Closing Date regarding the (i) Deposits, (ii) Assumed Contracts,
(iii) Seller's obligations to provide services in connection with the Assets and
the Deposits, including obligations with respect to safe deposit boxes, (iv)
Accrued Expenses, (v) any liabilities for transfer taxes, title insurance
premiums, sales or use taxes, recording fees or other fees or costs associated
with Closing, (vi) Escrow Balances and (vii) such other liabilities of Seller as
may be set forth on Schedule 1.1(c) (the "Other Liabilities"); excluding,
however, any Assumed Contracts as to which any consents required to transfer the
same to Purchaser at Closing cannot be obtained.
"LOSSES" means claims, judgments, settlements, penalties, fines, losses,
liabilities, obligations or duties (of any kind or nature, whether or not
accrued or fixed, absolute or contingent, determined or determinable) damages
(including compensatory or punitive damages and forgiveness or cancellation of
obligations), expenses, interest, costs and legal fees and disbursements,
collectively.
"MARKET STREET BRANCH" means the Branch located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇.
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"MARKET VALUE" means the average of (i) the dollar amount of a bid to
purchase the subject Deposit Collateral from a brokerage firm chosen by Seller;
and (ii) the dollar amount of a bid to purchase the subject Deposit Collateral
from a brokerage firm chosen by Purchaser.
"MATERIAL ADVERSE EFFECT" means, unless the context otherwise requires, a
material adverse effect on the business of the Branches, taken as a whole in
respect of all such Branches, or on the consummation of the transactions
contemplated hereby; provided, however, notwithstanding anything contained
herein to the contrary, an adverse effect resulting from the announcement of the
transactions contemplated by or the execution of this Agreement shall not
constitute a "Material Adverse Effect" nor shall it constitute a "material
adverse change" as described in Section 3.16 hereof.
"NET BOOK VALUE" shall mean the net book value as determined in accordance
with Generally Accepted Accounting Principles applied on a consistent basis.
"NET PREPAID EXPENSES" means Prepaid Expenses less Accrued Expenses.
"OCC" means the Office of the Comptroller of the Currency.
"OTHER LOANS" means loans of the Branches other than Deposit-Related Loans
or Uncollectible Loans, as described on Schedule 3.6 as "Other Loans" (including
loan commitments referred to thereon).
"OTS" means the Office of Thrift Supervision.
"PAPER ITEMS" shall have the meaning set forth in Section 6.3.
"PRELIMINARY DEPOSIT PREMIUM" shall mean: (i) eight and twenty-five one
hundreds percent (8.25%) of the aggregate amount of the Deposits set forth in
Schedule 3.4, excluding all uncollected items in depositors' balances, if
Regulatory Approval is obtained on or before the Target Date, or (ii) nine and
zero one hundreds percent (9.0%) of the aggregate amount of the Deposits set
forth in Schedule 3.4, excluding all uncollected items in depositors' balances,
if Regulatory Approval is obtained after the Target Date, unless such failure to
obtain Regulatory Approval on or before the Target Date is the result of: (i) a
breach by Seller of the terms of this Agreement, or (ii) the refusal of the
applicable governmental and regulatory authorities whose consents, approvals and
authorizations are required in order for Purchaser to consummate the
transactions contemplated herein, to grant such Regulatory Approval on or before
the Target Date as a result of an action by or the condition of Seller.
"PRELIMINARY SETTLEMENT STATEMENT" shall have the meaning set forth in
Section 9.2.
"PREPAID EXPENSES" means, as of the Closing Date, the prepaid expenses
that would otherwise appear as an asset in respect of any Branch on the
financial statements of Seller prepared in accordance with Generally Accepted
Accounting Principles and in accordance with Section 2.7 plus the pro rated
amount of the Prepaid FDIC Insurance Premium, whether or not it appears on the
financial statements of Seller.
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"PREPAID FDIC INSURANCE PREMIUM" means the amount of insurance premiums
paid by Seller to the FDIC for deposit insurance with respect to the Deposits
for any period after the Closing Date.
"PURCHASER'S OBJECTION" shall have the meaning set forth in Section
9.5(d).
"PURCHASER'S OFFICER'S CERTIFICATE" shall have the meaning set forth in
Section 8.2(b).
"RECORDS" means all records and original documents in Seller's possession
or control which pertain to and are utilized by Seller or reasonably necessary
to administer, reflect, monitor, evidence or record information respecting the
business or conduct of the Branches and all such records and original documents
respecting (i) the Assumed Contracts, (ii) the Assets, (iii) the Deposits, (iv)
the Employees and (v) the ATMs, including all such records maintained on
electronic or magnetic media in the electronic data base system of Seller or its
Affiliates, or to comply with applicable laws and governmental regulations to
which the Deposits are subject.
"REGULATORY APPROVALS" means all approvals, permits, authorizations,
waivers or consents of governmental agencies or authorities necessary or
appropriate to permit consummation of the transactions contemplated herein and
includes, without limitation, as applicable (i) approval of the FDIC under the
Federal Deposit Insurance Act ("FDIA"); and (ii) as applicable, approval by the
primary regulator of Purchaser and Seller, including the OTS, the OCC, the
Federal Reserve Board and approval by the appropriate regulatory authorities in
the various states of the United States or any other state or federal agency
whose approval of the transactions contemplated under this Agreement is
required.
"RESEARCH" means search, retrieval, photocopying, transmission,
delivering, compilation, reordering, or other tasks relating to the Records.
"SAFE DEPOSIT BUSINESS" shall have the meaning set forth in Section 5.14.
"SELLER'S KNOWLEDGE" or "PURCHASER'S KNOWLEDGE" or other similar phrases
means all information which is actually known by those officers of Seller or
Purchaser involved with negotiation of this Agreement and that are listed on
Schedule 1.1(d).
"SELLER LEASE" means any of the real estate leases or subleases whereby
Seller is the lessor or sublessor of real estate at or adjacent to Branches, as
indicated in Schedule 1.1(a).
"SELLER'S OFFICER'S CERTIFICATE" shall have the meaning set forth in
Section 8.1(b).
"TARGET DATE" means the date that is the earlier of: (i) sixty (60)
calendar days from the date the applications for the Regulatory Approvals are
filed; or (ii) seventy five (75) calendar days from the date hereof.
"TAX RETURNS" means any return or other report required to be filed with
respect to any Taxes, including declarations of estimated tax and information
returns.
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"TAXES" means any federal, state, local, or foreign taxes, including but
not limited to taxes on or measured by income, estimated income, franchise,
capital stock, employee's withholding, non-resident alien withholding, backup
withholding, social security, occupation, unemployment, disability, value added
taxes, taxes on services, real property taxes or special assessments, personal
property, sales, use, excise, transfer, gross receipts, inventory and
merchandise, business privilege, and other taxes or governmental fees or charges
or amounts required to be withheld and paid over to any government in respect of
any tax or governmental fee or charge, including any interest, penalties, or
additions to tax on the foregoing whether or not disputed.
"TERMINATION DATE" means July 29, 2005.
"TRANSACTION ACCOUNT" means any account at a Branch in respect of which
deposits therein are withdrawable in practice upon demand or upon which third
party drafts may be drawn by the depositor, including checking accounts, NOW
accounts and money market deposit accounts.
"UNCOLLECTIBLE LOANS" means any loans that, in Seller's reasonable
discretion, are past-due, uncollectible, do not satisfy reasonable underwriting
or performance criteria and listed on Schedule 1.1(e) or which become such after
the date of execution, which such Uncollectible Loans shall be excluded from the
Deposit-Related Loans and Other Loans being transferred to Purchaser hereunder.
"UPDATED DEPOSIT PREMIUM" shall mean: (i) eight and twenty-five one
hundreds percent (8.25%) of the aggregate amount of the Deposits set forth in
updated Schedule 3.4 delivered by Seller pursuant to Section 9.5, excluding all
uncollected items in depositors' balances, if Regulatory Approval is obtained on
or before the Target Date, or (ii) nine and zero one hundreds percent (9.0%) of
the aggregate amount of the Deposits set forth in updated Schedule 3.4 delivered
by Seller pursuant to Section 9.5, excluding all uncollected items in
depositors' balances, if Regulatory Approval is obtained after the Target Date,
unless such failure to obtain Regulatory Approval on or before the Target Date
is the result of: (i) a breach by Seller of the terms of this Agreement, or (ii)
the refusal of the applicable governmental and regulatory authorities whose
consents, approvals and authorizations are required in order for Purchaser to
consummate the transactions contemplated herein, to grant such Regulatory
Approval on or before the Target Date as a result of an action by or the
condition of Seller.
The meanings of defined terms are equally applicable to the singular and
plural forms of the defined terms.
ARTICLE II.
THE TRANSACTIONS
2.1 TRANSFER AND CONSIDERATION. Subject to the terms and conditions set
forth in this Agreement and except as otherwise indicated in the Schedules
hereto, at the Closing, Purchaser shall (a) purchase the Assets and (b) assume
the Liabilities and Seller shall sell, grant, assign,
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transfer, convey and deliver to Purchaser, all of Seller's right, except as set
forth in Section 7.3, title and interest in and to (i) such Assets, and (ii)
such Liabilities.
2.2 BREAK UP FEE .
(a) Upon execution of this Agreement, Purchaser shall deposit immediately
available funds in an amount equal to One Hundred Thousand Dollars ($100,000.00)
(the "Break Up Fee") in an escrow account at Purchaser, such Break Up Fee to be
subject to release as provided herein.
(b) The Break Up Fee shall be retained by Purchaser if this Agreement is
terminated:
(i) by Purchaser and Seller in accordance with Section
10.1(a),
(ii) by Purchaser in accordance with Section 10.1(b),
(iii) by Purchaser in accordance with Section 10.1(d),
(iv) by Purchaser in accordance with Section 10.1(e)(ii);
provided, however, that for purposes of this Section 2.2(b)(iv),
Purchaser shall only be entitled to retain the Break Up Fee if the
denial or revocation of any Regulatory Approval is the result of an
action by or the condition of Seller and, otherwise, Seller shall be
entitled to receive the Break Up Fee,
(v) by Purchaser in accordance with Section 10.1(f)(ii);
provided, however, that for purposes of this Section 2.2(b)(v),
Purchaser shall only be entitled to retain the Break Up Fee if the
withdrawal by Purchaser of its application for Regulatory Approval
is the result of communication by one of the applicable governmental
and regulatory authorities whose consents, approvals and
authorizations are required in order for Purchaser to consummate the
transactions contemplated herein of its unwillingness to grant
Regulatory Approval on or before the Target Date as a result of an
action by or the condition of Seller and, otherwise, Seller shall be
entitled to receive the Break Up Fee,
(vi) by Purchaser in accordance with Section 10.1(g).
(c) The Break Up Fee shall be paid and distributed to Seller if this
Agreement is terminated:
(i) by Seller in accordance with Section 10.1(b),
(ii) by Seller in accordance with Section 10.1(c),
(iii) by Seller in accordance with Section 10.1(d),
(iv) by Seller in accordance with Section 10.1(e)(i), or
(v) by Seller in accordance with Section 10.1(f).
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(d) If the Closing occurs on or before the Termination Date, the Break Up
Fee shall be credited towards the Aggregate Asset Value due to Seller from
Purchaser. The Break Up Fee shall be in addition to all other rights, claims and
causes of action Seller may have at law or in equity. Purchaser expressly agrees
that the amount of the Break Up Fee is fair and reasonable and does not
constitute a penalty or liquidated damages. In the event Seller is entitled to
the Break Up Fee in accordance with the terms of this Section 2.2 and Purchaser
unreasonably delays distribution of the Break Up Fee to Seller or fails to
distribute the Break Up Fee to Seller, Purchaser shall, in addition to payment
of the Break Up Fee, reimburse Seller for all damages, losses, costs, fees and
expenses (including attorneys' fees) incurred by Seller in connection with
obtaining the Break Up Fee.
2.3 CONSIDERATION FOR ASSUMPTION OF LIABILITIES. Subject to the provisions
of Article IX hereof, as consideration for the assumption of the Liabilities,
Seller shall pay to Purchaser an amount (the "Cash Payment") in United States
dollars, which shall be equal to (a) one hundred percent (100%) of the aggregate
amount of the Deposits as of Close of Business on the Closing Date, minus (b)
the Aggregate Asset Value, minus (c) the Deposit Premium.
2.4 AGGREGATE ASSET VALUE AND DEPOSIT PREMIUM.
(a) Aggregate Asset Value. The aggregate value of the Assets (the
"Aggregate Asset Value") will be an amount equal to the sum of the
following:
(i) the Appraised Value of Branch Real Estate;
(ii) the aggregate fair market value, as agreed by Purchaser
and Seller, of all of the items of Furniture, Fixtures and Equipment
not included in leasehold improvements, as determined by a fixed
asset physical inventory jointly performed as of the Close of
Business as of the last day of the month preceding the month in
which the Closing Date occurs;
(iii) the aggregate principal amount of the Deposit-Related
Loans and Other Loans to be delivered at Closing, plus accrued and
unpaid interest thereon excluding any Uncollectible Loans and
related accrued and unpaid interest thereon (but excluding for
purposes of such Aggregate Asset Value any unfunded loan commitments
referred to thereon, uncollected fees, charges or penalties);
(iv) the aggregate amount of Cash on Hand as of the Close of
Business on the Closing Date;
(v) the aggregate amount of the Net Prepaid Expenses as of the
Close of Business on the Closing Date as determined in accordance
with Generally Accepted Accounting Principles;
(vi) the Deposit Collateral Value; and
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(vii) the Prepaid FDIC Insurance Premium, if any, paid by the
Seller after the signing of this Agreement and before Closing.
(b) Deposit Premium. The deposit premium ("Deposit Premium") shall
be a dollar amount equal to the Preliminary Deposit Premium determined on
the Closing Date. An Updated Deposit Premium will be determined and paid
in accordance with Section 9.5.
2.5 ASSUMPTION OF ▇▇▇ DEPOSITS. With respect to Deposits which are IRAs,
Seller will use its reasonable efforts and will cooperate with Purchaser, both
before and for a period of not less than thirty (30) calendar days nor more than
sixty (60) calendar days after the Closing, in taking whatever actions as are
reasonably necessary to accomplish either the appointment of Purchaser as
successor custodian or the delegation to Purchaser of Seller's authority and
responsibility as custodian of all such ▇▇▇ deposits (except self-directed ▇▇▇
deposits), including, if necessary to comply with the rules of account or other
agreement governing such IRAs, sending to the depositors thereof appropriate
notices, cooperating with Purchaser in soliciting consents from such depositors,
and filing any appropriate applications with applicable regulatory authorities.
If any such delegation is made to Purchaser, Purchaser will perform all of the
duties so delegated and comply with the terms of Seller's agreement with the
depositor of the ▇▇▇ deposits affected thereby. With respect to Deposits which
are self-directed ▇▇▇ deposits, Seller shall cooperate with Purchaser to invite
depositors thereof to direct a transfer of each such depositor's account and the
related Branch Deposit to Purchaser and to adopt Purchaser's forms of ▇▇▇
agreements as a successor to Seller. With respect to any depositors who do not
transfer such accounts, Seller will use its reasonable efforts in order to
enable Purchaser to retain such accounts at the Branches.
2.6 ASSUMPTION OF ▇▇▇▇▇ DEPOSITS. With respect to Purchaser's proposed
assumption of Deposits which are ▇▇▇▇▇ Accounts, Seller shall cooperate with
Purchaser to take all steps necessary for transfer of such Accounts to
Purchaser, including, if required, inviting depositors thereof to direct a
transfer of each such depositor's ▇▇▇▇▇ Account and the related Deposit to
Purchaser, as trustee thereof, and to adopt Purchaser's form of ▇▇▇▇▇ Master
Plan as a successor to that of Seller. With respect to any depositors who do not
transfer such accounts to Purchaser's form of ▇▇▇▇▇ Master Plan, Seller will use
its reasonable efforts in order to enable Purchaser to retain such ▇▇▇▇▇
Accounts at the Branches.
2.7 ADJUSTMENT OF NET PREPAID EXPENSES/CHARGES. All expenses accrued but
not paid ("Accrued Expenses") or prepaid ("Prepaid Expenses") as determined in
accordance with Generally Accepted Accounting Principles to facilitate the
operations of the Branch prior to the Closing Date, including, without
limitation, wages, salaries, incentive compensation (including bonuses), rents,
utility payments, personal property taxes, and nondelinquent real property taxes
and assessments relating to the Branches or the Branch Real Estate shall be
pro-rated as of Closing between the parties. All Deposit related fees and
charges shall be pro-rated through Closing.
2.8 ALLOCATION OF CONSIDERATION. Purchaser and Seller agree to allocate
the consideration payable hereunder at the Closing in accordance with Section
1060 of the Code (the "Allocation"). Within one hundred twenty (120) calendar
days after the Closing Date, Purchaser shall provide to Seller Purchaser's
proposed allocation. Within thirty (30) calendar days after the
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receipt of such proposed allocation, Seller shall propose to Purchaser any
changes to such allocation or otherwise shall be deemed to have agreed with such
allocation. Seller and Purchaser shall reduce such Allocation to writing,
including jointly and properly executing completed IRS Form 8594, and any other
forms or statements required by the Code, Treasury Regulations or the IRS,
together with any and all attachments required to be filed therewith. Seller and
Purchaser shall file timely any such forms and statements with the IRS. To the
extent consistent with applicable law, Seller and Purchaser shall not file any
Tax Return or other documents or otherwise take any position with respect to
Taxes which is inconsistent with such Allocation, provided, however, that
neither Seller nor Purchaser shall be obligated to litigate any challenge to
such Allocation by a governmental authority. Seller and Purchaser shall promptly
inform one another of any challenge by any governmental authority to any
Allocation made pursuant to this paragraph and agree to consult with and keep
one another informed with respect to the state of, and any discussion, proposal
or submission with respect to, such challenge.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants as follows:
3.1 CORPORATE ORGANIZATION AND AUTHORITY. Seller is a Federal savings
bank, duly organized, validly existing and in good standing under the laws of
the United States of America and has the requisite power to execute, deliver and
perform this Agreement and to operate the Branches. Seller is a member of SAIF
and its Deposits are insured by the FDIC, subject to applicable FDIC coverage
limitations. Seller has taken all corporate action necessary in order to execute
and deliver this Agreement and to consummate the transactions contemplated
hereby. This Agreement is a valid and binding agreement of Seller.
3.2 NO CONFLICT; LICENSES AND PERMITS; COMPLIANCE WITH LAWS AND
REGULATIONS. Except as otherwise stated in this Agreement, the execution,
delivery and performance of this Agreement by Seller does not, and will not, (i)
violate any provision of its charter or bylaws or (ii) violate or constitute a
breach of, or default under, any law, rule, regulation, judgment, decree, ruling
or order of any court, government or governmental agency to which Seller is
subject or under any agreement or instrument of Seller, or to which Seller is a
party (except for any required consents of other parties under Assumed Contracts
in respect of the transactions herein contemplated), which violation, breach,
contravention or default referred to in this clause (ii) would have a Material
Adverse Effect. Seller has all material licenses, franchises, permits,
certificates of public convenience, orders and other authorizations of all
federal, state and local governments and governmental authorities necessary for
the lawful conduct of its business at each of the Branches as now conducted,
except for those licenses, franchises, permits, certificates of public
convenience, orders and other authorizations the failure of which to obtain
would not have a Material Adverse Effect. All such licenses, franchises,
permits, certificates of public convenience, orders and other authorizations,
are valid and in good standing and are not subject to any suspension,
modification or revocation or proceedings related thereto.
3.3 APPROVALS AND CONSENTS. Except as required to obtain the Regulatory
Approvals or as otherwise disclosed in writing to Purchaser by Seller in
Schedule 3.3 prior to the date hereof,
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no notices, reports or other filings are required to be made, as of the date
hereof, by Seller with, nor are any consents, registrations, approvals, permits
or authorizations required to be obtained, as of the date hereof, by Seller
from, any governmental or regulatory authorities of the United States or the
State of Ohio in connection with the execution and delivery of this Agreement by
Seller and the consummation by Seller of the transactions contemplated hereby.
3.4 DEPOSITS.
(a) Schedule 3.4 sets forth an accurate listing of the Deposits,
prepared as of the date indicated thereon, listing by category and by
Branch the amount of such Deposits, together with the aggregate Accrued
Interest thereon and the average interest rate payable thereon. The
Deposits represent liabilities of the Seller to the holders thereof. The
Deposits comply with applicable regulatory requirements except where
failure to comply would not have a Material Adverse Effect. To Seller's
knowledge, there are no disputes and Seller has not received notice of any
disputes relating to the Deposits that would, singularly or in the
aggregate, constitute a Material Adverse Effect.
(b) To Seller's knowledge, the Deposits (i) are in all respects
genuine and enforceable obligations of Seller and have been acquired and
maintained in full compliance with all applicable laws, including (but not
limited to) the Truth in Savings Act and regulations promulgated
thereunder; (ii) were acquired in the ordinary course of Seller's
business; and (iii) are not subject to any claims with respect to such
Deposits that are superior to the rights of persons shown on the records
delivered to Purchaser indicating the owners of the Deposits other than
claims against such owners of the Deposits, such as state and federal tax
liens, garnishments, and other judgment claims, which have matured or may
mature into claims against the respective Deposits.
3.5 FURNITURE, FIXTURES AND EQUIPMENT. Attached hereto as Schedule 3.5 is
a true and accurate schedule of all Furniture, Fixtures and Equipment.
3.6 LOANS. Schedule 3.6 sets forth all Deposit-Related Loans and Other
Loans, including Accrued Interest thereon. Each of the Deposit-Related Loans and
Other Loans is, the valid and binding obligation of the maker thereof,
enforceable in accordance with its terms, subject to the effect of bankruptcy,
insolvency, reorganization, fraudulent transfer, statutes of limitation, or
other similar laws and judicial decisions affecting or relating to the rights of
creditors generally, and to the effect of general principles of equity. The
Deposit-Related Loans or Other Loans, or the respective collateral or other
security therefor, comply with applicable regulatory requirements except where
failure to comply would not have a Material Adverse Effect.
3.7 PERSONAL PROPERTY AND SELLER LEASES. Each lease relating to Furniture,
Fixtures and Equipment is the valid and binding obligation of Seller and there
does not exist with respect to Seller's obligations thereunder any material
default, or event or condition which constitutes, or after notice or passage of
time or both would constitute, a material default on the part of Seller under
any lease relating to Furniture, Fixtures and Equipment. Seller has heretofore
provided to Purchaser or will provide prior to the Closing Date, copies of, or
if copies are unavailable, all pertinent information relating to each lease
relating to Furniture, Fixtures and Equipment. Each
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Seller Lease is the valid and binding obligation of Seller and there does not
exist with respect to Seller's obligations thereunder any material default, or
event or condition which constitutes, or after notice or passage of time or both
would constitute, a material default on the part of Seller under any Seller
Lease. Seller has heretofore provided to Purchaser or will provide prior to the
Closing Date, copies of, or if copies are unavailable, all pertinent information
relating to each Seller Lease.
3.8 CONTRACTS AND DEFAULTS. To the knowledge of Seller, no event has
occurred and remains uncured which constitutes a material default by any party
(or would, but for the passage of time or the giving of notice, constitute a
material default) under any material contract relating to the operation of the
Branches or any other Assumed Contract, except for those agreements that are
terminable within six (6) months' notice or involving an obligation of Seller or
the other party or parties thereto of less than $25,000 in any year and,
excluding for purposes of this Section 3.8, any Deposit-Related Loans.
3.9 EMPLOYEE BENEFITS. All material benefit plans or contracts (funded or
unfunded) covering current employees or former employees of the Branches,
including, but not limited to, "employee benefit plans" within the meaning of
Section 3(3) of ERISA (the "Plans"), have been heretofore provided to Purchaser
or will be provided to Purchaser prior to the Closing Date.
3.10 LITIGATION AND LIABILITIES. Except as set forth in Schedule 3.10,
there are no actions, suits or other legal proceedings pending or, to Seller's
knowledge, threatened against Seller or any of its Affiliates with respect to
the Branches, and there are no violations of law or regulation, in each case,
that could result in any claims against or obligations or liabilities of Seller
or any of its subsidiaries with respect to the Branches that, individually or in
the aggregate, could reasonably be expected to have a Material Adverse Effect.
3.11 REGULATORY MATTERS. Except as listed in Schedule 3.11, there are no
pending, or, to Seller's knowledge, threatened, disputes or controversies
between Seller and any Federal, state or local governmental authority with
respect to the Branches that, individually or in the aggregate, could be
expected to have a Material Adverse Effect.
3.12 BROKERS' FEES. Except with respect to its engagement of KeyBanc
Capital Markets, a division of McDonald Investments Inc., Seller has not
employed any broker or finder or incurred any liability for any brokerage fees,
commissions or finder's fee in connection with the transactions contemplated by
this Agreement. Purchaser shall not be liable for any brokerage fees,
commissions or finders' fees in connection with the transactions contemplated by
this Agreement and all brokerage fees, commissions or finders' fees of McDonald
Investments Inc. shall be the sole responsibility of Seller.
3.13 ENVIRONMENTAL MATTERS. Without conducting any independent
investigation, except as set forth in Schedule 3.13:
(a) No Hazardous Substances have been disposed of or released upon
or below, or is currently stored on, any of the Branches by Seller in
violation of any Environmental
14
Law and to Seller's knowledge no Hazardous Substances are present upon or
below any of the Branches which would require remediation under any
Environmental Laws;
(b) Seller has not received any written communication from any
governmental authority alleging a violation of any Environmental Law with
respect to any of the Branches; and
(c) No person or entity has asserted any claim arising out of, based
upon, or resulting from (i) the release into the environment of any
Hazardous Substance upon or below any of the Branches in violation of any
Environmental Law, or (ii) the violation or alleged violation of any
Environmental Law with respect to any of the Branches.
3.14 COLLECTIVE BARGAINING AGREEMENTS. Seller is not a party to any
collective bargaining agreement or contract with any labor organization with
respect to any of the Branches.
3.15 INFORMATION FOR REGULATORY APPROVALS. The information furnished or to
be furnished by Seller in any regulatory application filed by Seller or
Purchaser in connection with the Regulatory Approvals will be true and complete
as of the date so furnished.
3.16 ABSENCE OF CERTAIN CHANGES, ETC. Except as set forth in Schedule 3.16
or as contemplated under this Agreement, since the date of this Agreement, (i)
Seller's business at the Branches has been conducted only in, and there has not
been any material transaction other than according to, the ordinary and usual
course of such businesses and (ii) there has not been any change in the
financial condition, prospect, properties, business or results of operations of
the Branches which constitutes a Material Adverse Effect, or any development or
combination of developments of which Seller has knowledge which, individually or
in the aggregate, is reasonably likely to result in a Material Adverse Effect
other than changes in general economic conditions or changes in banking laws or
regulations of general applicability or interpretations thereof.
3.17 SOLDIERS AND SAILORS CIVIL RELIEF ACT. No borrower or obligor under
the Deposit Loans or Other Loans has requested, and the Seller has not allowed
any relief to any borrower or obligor pursuant to the Soldiers and Sailors Civil
relief Act of 1940.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants that, except as set forth on Schedule 4:
4.1 CORPORATE ORGANIZATION AND AUTHORITY. Purchaser is an Ohio banking
corporation, duly organized, validly existing and in good standing under the
laws of Ohio. Purchaser has the requisite corporate power and authority and has
taken all corporate action as necessary in order to execute and deliver this
Agreement, to consummate the transactions contemplated hereby, to accept and
maintain the Deposits, to own the Assets, to assume the Liabilities and to
operate the Branches. Subject to the foregoing and subject to obtaining the
Regulatory Approvals, this Agreement will be a valid and binding agreement of
Purchaser.
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Purchaser is a member of the BIF and its deposits are insured by the FDIC,
subject to applicable FDIC coverage limitations. Purchaser is duly authorized to
operate a banking business and, upon receipt of approval of the Ohio Division of
Financial Institutions of the Ohio Department of Commerce and the Federal
Reserve Board, will be duly authorized to operate each of the Branches.
4.2 NO CONFLICT; LICENSES AND PERMITS; COMPLIANCE WITH LAWS AND
REGULATIONS. Except as otherwise stated in this Agreement, the execution,
delivery, and, subject to the Regulatory Approvals, the performance of this
Agreement by Purchaser does not, and will not (i) violate any provision of its
articles or regulations, (ii) constitute or result in a material breach of any
term, condition or provision of, or constitute a default under, or give rise to
any right of termination, cancellation or acceleration with respect to, any
material agreement of Purchaser or (iii) to Purchaser's knowledge, violate or
constitute a breach or contravention of or default under any law, rule,
regulation, order, judgment, decree or filing of or agreement with any
government, governmental authority or court to which Purchaser is subject or
under any agreement or instrument of Purchaser, or to which Purchaser is
otherwise bound, which violation, breach, contravention or default, individually
or in the aggregate, (x) could be expected to prevent or impair the ability of
Purchaser to perform its obligations under this Agreement or (y) could impair
the validity or consummation of this Agreement or the transactions contemplated
hereby.
4.3 APPROVALS AND CONSENTS. Other than the Regulatory Approvals or as
otherwise disclosed by Purchaser to Seller in this Agreement, no notices,
reports or other filings are required to be made by Purchaser with, nor are any
consents, registrations, approvals, permits or authorizations required to be
obtained by Purchaser from any governmental or regulatory authorities of the
United States, any State government or any foreign jurisdictions or any
nongovernmental third parties in connection with the execution and delivery of
this Agreement by Purchaser and the consummation of the transactions
contemplated hereby by Purchaser, the failure to make or obtain any or all of
which could prevent, materially delay or materially burden the transactions
contemplated by this Agreement.
4.4 REGULATORY MATTERS. Neither Purchaser nor any of its Affiliates has
received any indication from any Federal, state or other governmental agency, or
has any reason to know, that such agency would oppose or refuse to grant or
issue its consent or approval, if required, with respect to the transactions
contemplated hereby, including, without limitation, any Regulatory Approval.
4.5 BROKERS' FEES. Except with respect to ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
Purchaser has not employed any broker or finder or incurred any liability for
any brokerage fees, commissions or finders' fees in connection with the
transactions contemplated by this Agreement. Seller shall not be liable for any
brokerage fees, commissions or finders' fees in connection with the transactions
contemplated by this Agreement and all brokerage fees, commissions or finders'
fees of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ shall be the sole responsibility of Purchaser.
4.6 LITIGATION AND LIABILITIES. There are no actions, suits or other legal
proceedings pending, or to Purchaser's knowledge, threatened against Purchaser,
or otherwise with respect to the transactions contemplated hereby, and to
Purchaser's knowledge there are no violations of law
16
or regulation that could result in any claims against or obligations or
liabilities of Purchaser that, individually or in the aggregate, (i) could
reasonably be expected to prevent or impair the ability of Purchaser to perform
its obligations under this Agreement or (ii) could impair the validity or
consummation of this Agreement or the transactions contemplated hereby.
4.7 AGREEMENTS WITH REGULATORY AUTHORITIES. Purchaser is not a party to
any written order, decree, agreement or memorandum of understanding with, or
commitment letter or similar enforcement action, any Federal or state
governmental agency or authority charged with the supervision or regulation of
depository institutions or engaged in the insurance of deposits, nor has
Purchaser been advised by any such regulatory authority that such authority is
contemplating issuing or requesting (or is considering the appropriateness of
issuing or requesting) any such order, decree, agreement, memorandum of
understanding, commitment letter or enforcement action, in each case which
order, decree, agreement, memorandum of understanding, commitment letter or
enforcement action (i) could reasonably be expected to prevent or impair the
ability of Purchaser to obtain the Regulatory Approvals or otherwise perform its
obligations under this Agreement or (ii) could impair the validity or
consummation of this Agreement or the transactions contemplated hereby.
4.8 INFORMATION FOR REGULATORY APPROVALS. To the best knowledge and belief
of Purchaser, the information furnished or to be furnished by Purchaser in any
regulatory application filed by Purchaser or Seller in connection with the
Regulatory Approvals will be true and complete as of the date so furnished.
4.9 COMMUNITY REINVESTMENT ACT. Purchaser received a rating of
"satisfactory" or "outstanding" in its most recent examination or interim review
with respect to the Community Reinvestment Act. Purchaser has not been advised
of any supervisory concerns regarding its compliance with the Community
Reinvestment Act. Purchaser at the Closing Date will have available to it all
funds necessary to satisfy all of its obligations hereunder and in connection
with the transactions contemplated hereby, including the obligation to purchase
the Assets and assume the Liabilities on the terms and conditions set forth
herein, and its ability to consummate such transactions is not dependent or
conditional upon the receipt of financing (whether debt or equity) from any
unrelated third party.
ARTICLE V.
COVENANTS OF THE PARTIES
5.1 ACTIVITY IN THE ORDINARY COURSE. From the date hereof, and until the
Closing Date, except as may be reasonably required to commence conversion of its
electronic data processing system to a new software system, Seller shall conduct
the business of the Branches to be transferred at the Closing Date in the
ordinary and usual course following the same practices and standards and will
not enter into any material transaction with respect to any of the Assets or
Liabilities or make any material commitment with respect to the Assets or
Liabilities except in the ordinary and usual course of business consistent with
past practice. From the date hereof and until the Closing Date, Seller shall
not, without the prior written consent of Purchaser:
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(a) Except in the ordinary course of business, sell, transfer,
lease, assign, encumber or otherwise dispose of or enter into any
contract, agreement or understanding to transfer, assign, encumber or
dispose of any material Assets existing on the date hereof;
(b) Agree to make any material improvements to the Branches or the
Branch Real Estate, except with respect to commitments for such made on or
before the date of this Agreement and disclosed to Purchaser in Schedule
5.1 and normal maintenance or refurbishing purchased or made in the
ordinary course of business;
(c) File any application to relocate any Branch;
(d) Enter into any commitment, agreement, understanding or other
arrangements (i) to transfer, lease, assign, encumber or otherwise dispose
of any Branch Real Estate, or (ii) to modify or terminate any Seller
Lease;
(e) Terminate the operations of any Branch;
(f) Take any action that would (i) impair Purchaser's rights in any
Deposit or Asset, (ii) impair in any way the ability of Purchaser to
collect upon any Deposit-Related Loan or Other Loan, (iii) transfer a
Deposit to a Branch from Seller's other branches, (iv) except in the
ordinary course of servicing, result in a waiver by Seller of any material
right, whether in equity or at law, that it has with respect to any
Deposit-Related Loan or Other Loan and (v) that could otherwise have a
Material Adverse Effect;
(g) Change its deposit pricing policies at the Branches in a manner
that is not consistent with deposit pricing policies used with respect to
branches of Seller that are not Branches, except to the extent that
Purchaser is provided notice of a change in pricing that is necessary to
respond to deposit increases or decreases resulting from announcement of
the transactions contemplated by this Agreement;
(h) Change its loan pricing policies related to the Deposit-Related
Loans or Other Loans in a manner that is not consistent with loan pricing
policies used with respect to branches of Seller that are not Branches, or
(i) Hire, transfer, terminate (other than in the ordinary course of
business) enter into written agreements with or change compensation of any
Hired Employees.
5.2 ACCESS AND CONFIDENTIALITY.
(a) Except as otherwise provided in this Agreement, Purchaser shall
not contact any of the Employees, depositors, customers or suppliers of
the Branches, or otherwise inspect the Branch facilities or interfere with
the business of Seller in any way except with the written consent of
Seller. After the date hereof and until the Closing Date, Seller shall
afford to Purchaser and its officers, authorized agents and
representatives reasonable access to the personnel, properties, books,
records, contracts, documents, files (including
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loan files) and other information at the Branches, or relating to the
Assets, the Employees, the Assumed Contracts and the Deposits. Seller
shall furnish Purchaser with such additional financial and operating data
and other information about its business operations at the Branches as may
be reasonably necessary for the orderly transfer of the business
operations of the Branches.
(b) Each party to this Agreement shall hold, and shall cause its
respective directors, officers, employees, agents, consultants and
advisors to hold, in strict confidence, unless disclosure to a bank
regulatory authority is necessary in connection with any Regulatory
Approval (in which case Purchaser shall take such steps as are requested
by Seller to request that the Information be afforded confidential
treatment) or unless compelled to disclose by judicial or administrative
process, by other requirements of law or the applicable requirements of
any regulatory agency or relevant stock exchange, all non-public records,
books, contracts, instruments, computer data and other data and
information (collectively, "Information") concerning the other party
furnished it by such other party or its representatives pursuant to this
Agreement (except to the extent that such information can be shown to have
been (a) previously known by such party on a non-confidential basis, (b)
in the public domain through no fault of such party or (c) later lawfully
acquired from other sources by the party to which it was furnished), and
neither party shall release or disclose such Information to any other
person, except its auditors, attorneys, financial advisors, bankers, other
consultants and advisors, and to the extent permitted above, to IRS
agents, bank regulatory authorities and other applicable governmental
authorities.
5.3 REGULATORY APPROVALS. As soon as practicable after the date of this
Agreement, and in no event more than fifteen (15) calendar days after the date
hereof, Purchaser shall prepare and file any applications to federal or state
regulatory authorities for approvals necessary, including all Regulatory
Approvals, to consummate the transactions contemplated by this Agreement.
Purchaser shall use its reasonable best efforts to obtain each such approval as
soon as practicable and will provide Seller with copies of any applications and
all correspondence relating thereto prior to filing. Seller will cooperate in
connection with Purchaser in obtaining each such approval (including promptly
providing to Purchaser information regarding Seller to be included in the
applications for Regulatory Approvals and the furnishing of any reasonable
undertaking or commitment which may be required to obtain such Regulatory
Approvals, whether such undertaking or commitment is to be provided prior to
submission of or during review of the applications for Regulatory Approvals). If
any regulatory authority shall require the modification of any of the terms and
provisions of this Agreement as a condition to granting any Regulatory Approval,
the parties hereto will negotiate in good faith to seek a mutually agreeable
adjustment to the terms of the transactions contemplated hereby, such agreement
not to be unreasonably withheld.
5.4 ENVIRONMENTAL ASSESSMENT REPORTS AND PHYSICAL EXAMINATIONS.
(a) Seller has provided to Purchaser copies of all environmental
assessment reports relating to the Branches in Seller's possession.
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(b) Seller shall provide Purchaser and Purchaser's environmental
consultants with access to each parcel of Branch Real Estate and to all
pertinent information, records or documents within Seller's possession,
custody or control, at times reasonably satisfactory to Seller, for the
purpose of conducting an environmental investigation and preparing an
environmental assessment report for Purchaser regarding each parcel of
Branch Real Estate, of a scope reasonably satisfactory to Purchaser.
Purchaser shall be responsible for paying the costs associated with the
environmental assessment reports and agrees to save, defend, hold harmless
and indemnify Seller from and against all Losses incurred by reason of
Purchaser's activities under this Section. At Seller's request, Purchaser
shall provide Seller with copies of any environmental assessment report
and Purchaser and Seller shall hold information contained in such reports
in confidence in accordance with Section 5.2.
(c) Purchaser shall have seven (7) Business Days after receipt of
any environmental assessment report, and in any event no later than thirty
(30) calendar days, or sixty (60) calendar days if Purchaser determines to
perform a Phase II assessment, after the date hereof, to provide notice to
Seller of any Material Adverse Effect resulting from the presence of any
Hazardous Substances on, under, or within or affecting any Branch Real
Estate. If Purchaser fails to provide such timely notice to Seller,
Purchaser shall be deemed to have waived any claim that the existence or
presence of such Hazardous Substance results in a Material Adverse Effect
or material breach of this Agreement. In the event Purchaser properly
notifies Seller of the existence or presence of such Hazardous Substance,
Seller shall have the option, but not the obligation, to perform
remediation prior to the Closing Date as necessary to eliminate any
Material Adverse Effect such Hazardous Substance would have on the value
of such Branch Real Estate. If Seller refuses to perform such remediation,
Purchaser may terminate this Agreement.
(d) Purchaser and its employees, architects, engineers, accountants,
attorneys, agents and other authorized representatives, shall have the
right to enter upon the Branch Real Estate and to have access to the
Branch Real Estate in order to make such physical inspections, to conduct
such surveys, studies, tests and to make such other reviews of the Branch
Real Estate that Purchaser, in its sole discretion, deems appropriate
(herein called "Examinations"). Seller does hereby agree to give to
Purchaser and its authorized representatives reasonable access at mutually
convenient times. Purchaser shall be responsible for paying the costs
associated with such physical inspections, surveys, studies, tests and
reviews and agrees to save, defend, hold harmless and indemnify Seller
from and against all losses incurred by reason of this section, including
but not limited to expenses incurred in connection with restoring the
Branch Real Estate to the same condition as it existed immediately prior
to Purchaser's entry thereon.
(e) Purchaser shall have thirty (30) calendar days following the
date hereof to conduct its Examinations and provide to Seller notice of
any material defect in the Branch Real Estate revealed by the
Examinations. If Purchaser fails to provide such timely notice to Seller,
Purchaser shall be deemed to have waived any claim that the Examinations
revealed, any material defects in the Branch Real Estate. In the event
Purchaser properly notifies Seller of the existence of such material
defects, Seller shall have the option, but not
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the obligation, to repair or otherwise cure the defect prior to the
Closing. If Seller refuses to repair or otherwise cure the defect,
Purchaser may terminate this Agreement.
(f) At the Closing, Seller shall pay Purchaser $28,000 towards the
remediation of the mold problem at Market Street Branch. Seller shall have
no further obligations with respect to the mold problem at Market Street
Branch.
5.5 TITLE TO BRANCH REAL ESTATE. Within fifteen (15) calendar days of the
date hereof, Seller will deliver to Purchaser, for each parcel of Branch Real
Estate, a title commitment showing title to be vested in Purchaser, free of all
"Unpermitted Encumbrances." For such purposes, an "Unpermitted Encumbrance"
shall include (a) any encumbrance that is a physical encumbrance identified by a
survey conducted by, or on behalf of, the Seller or the Purchaser, and (b) all
Encumbrances appearing in such title commitments except the following:
(i) Laws, ordinances and governmental regulations (including,
without limitation, those pertaining to air and water pollution and solid
and hazardous wastes) restricting, regulating or prohibiting the occupancy
or use of the Branch Real Estate, or regulating the character, dimensions
or locations of the Improvements thereon; provided that none of the same
would materially impair or interfere with the continued use of any portion
of the Branch Real Estate for the purposes for which they have been
customarily used by Seller;
(ii) the following standard general printed exceptions: matters
created or first appearing in the public records after the effective date
of the applicable commitment; matters of survey; rights of tenants (as
tenants only) in possession; matters not shown in public records;
unrecorded mechanic's liens; and real estate taxes and special assessments
not delinquent;
(iii) Such other imperfections of title as are not so substantial as
to materially impair or interfere with the continued use of any portion of
the Branch Real Estate for the purposes for which they have been
customarily used by Seller.
Seller shall have forty-five (45) Business Days from the date it receives notice
of an Unpermitted Encumbrance to cause the removal of such Unpermitted
Encumbrance or to provide for a title indemnity or bond over such Unpermitted
Encumbrance, satisfactory in form and amount to Purchaser's title company.
Purchaser agrees to take all action reasonably necessary to assist in the
removal or other disposition of such Unpermitted Encumbrance and to cooperate
with Seller in negotiating reasonable accommodations with the holder of any
Unpermitted Encumbrance, all at no cost to Purchaser.
5.6 NOTICES OF DEFAULT. Seller and Purchaser shall each promptly give
written notice to the other upon becoming aware of the impending or threatened
occurrence of any event which could reasonably be expected to cause or
constitute a breach of any of their respective representations, warranties,
covenants or agreements contained in this Agreement.
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5.7 DEPOSIT SOLICITATION BY PURCHASER. Prior to and following the Closing,
Purchaser will not use Seller's name, logos or trademarks in any manner in
advertising for or soliciting deposits without Seller's prior written consent,
which may be withheld for any reason.
5.8 PERFORMANCE OF LIABILITIES. From and after the Closing Date, Purchaser
shall indemnify and hold Seller harmless and fully perform, pay and discharge
all of the Liabilities as and when due and shall protect the rights of
depositors and creditors of the Branches in the same manner and to the same
extent as if Purchaser had itself originally incurred the Liabilities. Seller
shall indemnify and hold Purchaser harmless and fully perform, pay and discharge
all of the Liabilities which arose prior to the Closing Date and shall protect
the rights of depositors and creditors of the Branches in the same manner and to
the same extent with respect to Liabilities that arose prior to the Closing
Date.
5.9 CONTRACTS. Seller shall use its reasonable efforts to obtain the
consent from any third party required to assign any of the Assumed Contracts to
Purchaser; provided, however, that Seller shall not be obligated to incur any
monetary obligations or expenditures in connection with such efforts. The cost
of such obligations or expenditures Seller incurs in good faith shall be borne
by the Purchaser, but only with Purchaser's prior written consent. Seller may by
written notice to Purchaser prior to the Closing exclude from Schedule 1.1(a)
any contract that is not assignable by its terms, or that requires the consent
of a third party in order for such contract to be assigned to Purchaser, if, in
each case, Seller has been unable to obtain consent prior to the Closing. If the
exclusion of contracts results in a Material Adverse Effect, then Purchaser may
terminate this Agreement.
5.10 SELLER LEASES. Seller shall assign to Purchaser any Seller Leases
relating to the Branch Real Estate. Purchaser shall assume all obligations of
Seller under such Seller Leases, with respect to the period following the
Closing Date.
5.11 INSURANCE; DESTRUCTION OF OR DAMAGE TO A BRANCH. From the date of
this Agreement through the Closing Date, Seller shall maintain insurance upon
each Branch in such amounts and of such kinds as have been maintained by it in
the past. In the event any Branch is partially or totally damaged or destroyed
by fire, flood, earthquake or other casualty, between the date hereof and the
Closing Date, Seller may, in its sole discretion, use the proceeds of any
insurance maintained upon such Branch to repair such damage or rebuild such
destroyed Branch. At the Closing, if the Branch is not repaired or replaced,
Seller shall deliver to Purchaser any unused or uncommitted insurance proceeds
and other payments received by Seller as a result of such damage or destruction
and shall assign to Purchaser all of Seller's rights and claims against any
third party by reason thereof so that Purchaser, using the proceeds of any such
insurance, may repair such damage or rebuild such destroyed Branch.
5.12 INTERFERENCE OR DAMAGE. Purchaser shall not interfere with Seller's
normal operations or its customers or employee relations. Without limiting the
generality of the foregoing, Purchaser shall not solicit customers of the
Branches prior to Closing. Purchaser hereby agrees to indemnify, reimburse,
defend and hold harmless Seller for, from and against all Losses arising out of
or related to the activities of Purchaser, its agents or contractors on or about
the Branches on or prior to the Closing Date.
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5.13 ACCOUNT LOANS. On and after the Closing Date, Purchaser shall
continue to honor and provide credit in accordance with applicable law and the
provisions of the Deposit-Related Loans and Other Loans transferred under this
Agreement until such provisions are properly modified or canceled by Purchaser.
5.14 SAFE DEPOSIT BUSINESS. From and after the Closing Date, Purchaser
shall assume all of Seller's liabilities with respect to the safe deposit
business associated with the Branches, including but not limited to maintaining
all necessary facilities and providing all necessary services for the use of
safe deposit boxes by the renters thereof, in accordance with the provisions of
the applicable leases or other agreements relating to such boxes (the "Safe
Deposit Business"). To the extent that Purchaser does not fulfill all of
Seller's obligations with respect to safe deposit boxes, Purchaser shall
indemnify and hold harmless Seller for any Losses associated therewith, without
regard to any Floor Amount or Ceiling Amount. Any safe deposit fees shall be pro
rated among the parties as of the Closing Date.
5.15 CONDUCT OF BUSINESS. Except with the prior written consent of Seller,
between the date hereof and the Closing Date, Purchaser and its Affiliates shall
not undertake any marketing or advertising efforts specifically directed to
Sellers' customers. Likewise, between the date hereof and the Closing Date,
Purchaser and its Affiliates shall not take any other action intended to reduce
the amount of the Deposits as of the Closing Date. Neither Purchaser nor Seller
shall, between the date of this Agreement and the Closing Date, conduct its
business and operations in such a manner as to impair its respective ability to
consummate the transactions contemplated hereunder nor will either Purchaser or
Seller engage in any transaction, take any action or omit to take any action,
which could be expected to impair its ability to consummate the transactions
contemplated hereunder. Notwithstanding anything contained herein, between the
date hereof and the Closing Date, Purchaser and its Affiliates shall be
permitted to engage in marketing activities with respect to Purchaser's business
generally, to increase interest rates Purchaser or such Affiliates pay to
customers, provided, however, such increases (i) are consistent with past and
customary practices of Purchaser, (ii) are taken in the ordinary course of
business, (iii) are not directed only at the markets in which the Branches are
located, and (iv) are not intended to adversely affect the business or prospects
of the Branches.
5.16 FIDUCIARY RELATIONSHIPS. Purchaser shall perform all of the fiduciary
relationships of Seller arising out of or in relation to any retirement accounts
included within the Deposits, and with respect to such accounts, Purchaser shall
assume all of the obligations and duties of Seller as fiduciary and succeed to
all such fiduciary relationships of Seller as fully and to the same extent as if
Purchaser had originally acquired, incurred or entered into such fiduciary
relationship.
5.17 SOLICITATIONS AND BRANCH LOCATIONS. Seller agrees that for a period
of twenty four (24) months after the Closing Date, Seller shall not solicit
deposits, loans or other business from or to persons or entities who are
depositors at the Branches on the date of this Agreement or Closing Date with
respect to the Deposits; or have an office in ▇▇▇▇▇ County, Ohio for the purpose
of accepting deposits or soliciting or originating loans; or engage in direct
mail or media advertising for deposits or non-commercial loans directed
specifically to persons resident in Lima, Ohio,
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rather than to persons on a regional or national basis; except that (i) nothing
in this Section 5.17 shall prohibit television, radio or newspaper solicitations
which are not directed specifically to persons or entities who are located in
Lima, Ohio or are otherwise depositors of the Branches on the Closing Date, (ii)
Seller and Affiliates and successors of Seller may solicit depositors who as of
the date of this Agreement have existing accounts at other branches or other
offices of Seller or its Affiliates, and (iii) nothing in this Section 5.17
shall restrict solicitations with respect to a branch or office that Seller or
its Affiliates hereafter acquires in a transaction involving multiple branches
or offices. For purposes of this Section 5.17, commercial loans and lending
relationships shall mean secured or unsecured loans that are primarily for
commercial, corporate, business or agricultural purposes, whether or not such
loans would be categorized as commercial loans for regulatory purposes.
5.18 "AS IS" CONDITION. Purchaser acknowledges that it will purchase the
Assets and assume the Liabilities at the Closing in an "AS IS" condition, with
all faults, in reliance upon Purchaser's inspection thereof and the reports
obtained by Purchaser pursuant hereto and Seller makes no representations or
warranty of any kind whatsoever with respect to the Assets or the Liabilities,
except as otherwise expressly set forth herein. Purchaser and anyone claiming
by, through or under Purchaser hereby waives, releases and forever discharges
Seller, and any Affiliates and directors, officers and agents of Seller or its
Affiliates, from any and all claims that it may now have or hereafter acquire
against any such persons and entities for any Losses which arise from any
defects or other conditions, (including, without limitation, violations of
Environmental Law or presence, storage, release or disposal of Hazardous
Substances thereon), affecting the Branches or any portion thereof; provided,
however, that such release shall not apply to a claim by Purchaser against
Seller for a breach of Seller's representations, warranties and covenants
contained in this Agreement that is brought in accordance with, and subject to
the limitations of, the indemnification provisions contained in Article XI of
this Agreement.
5.19 DEPOSIT RECORDS. Seller shall prepare or cause to be prepared at its
expense and make available to Purchaser at Seller's data processing center or
other reasonably convenient location magnetic media records in Seller's field
format as soon as possible and in any event not later than thirty (30) calendar
days prior to the Closing Date and further shall make available to Purchaser
such records updated monthly and as of the Closing Date. Such updated records
shall be made available at such time after the Closing Date as agreed to by the
parties.
ARTICLE VI.
TRANSITIONAL MATTERS
6.1 TRANSITIONAL ARRANGEMENTS.
(a) Seller and Purchaser shall, before and after the Closing Date,
cooperate in good faith to ensure the orderly and efficient transfer and
conversion of the Assets and Liabilities to be transferred hereunder. To
this end and to the extent not otherwise provided in this Agreement,
Seller and Purchaser shall meet and agree upon appropriate procedures for
notification of customers, employees and suppliers, for conversion of data
processing and check clearing systems for notification of customer
inquiries and, as necessary, enter into a transition services agreement
memorializing such procedures. Seller shall cooperate
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with Purchaser in a manner in which the Seller reasonably believes will
accommodate the conversion of the data processing and check clearing
systems of the Branches. Seller shall not be obligated to provide any
conversion information or assistance that requires unreasonable expense or
inconvenience on Seller's part but shall discuss with Purchaser the
feasibility and cost of providing such information or assistance.
(b) Purchaser shall establish an account with Seller (the
"Correspondent Account") for purposes of accepting credits to and
absorbing debits against, the cash balances transferred or transferable as
a result of adjustments made pursuant to this Agreement during the three
(3) months after the Closing Date. The Correspondent Account shall provide
authorization to Seller, without signature of Purchaser, for the deposits
and withdrawals authorized in, but only such deposits and withdrawals as
are authorized in this Agreement with respect to the Correspondent
Account. Any negative (collected) balances in the Correspondent Account
shall represent an advance to Purchaser bearing interest which shall be
debited against such Correspondent Account at the end of each month at the
applicable Federal Funds Rate on the last Business Day of such month.
6.2 NOTIFICATION OF DEPOSITORS. Each of Seller and Purchaser shall obtain
the prior approval, which shall not be unreasonably withheld, of the other of
the form of any written notification to holders of Deposits of the transfer of
the Deposits from Seller to Purchaser. Purchaser will notify the holders of
Deposits as soon as practicable, but in no event less than five (5) Business
Days before Closing, of its assumption of all of the liability for the Deposits,
and shall include in such notification any additional notice or information
Seller or Purchaser is required to give by any regulatory authority having
jurisdiction or under applicable law or the terms of any other agreement between
Seller and any customer in connection with the transactions contemplated hereby,
including, without limitation, notice of the cessation of customer online
banking through Seller as of the Closing Date. All costs and expenses of any
notice or communication sent or published by Purchaser shall be the
responsibility of the Purchaser.
6.3 ASSUMPTION OF DEPOSITS. Upon the Closing Date, Purchaser shall assume
and timely discharge the duties and obligations of Seller with respect to the
Deposits transferred on the Closing Date as may arise under such account
agreements, applicable laws, regulations, agreements and rules of automated
clearing houses and other payment systems which relate thereto. From and after
the Closing Date, Purchaser agrees to pay, to the extent of sufficient available
funds on deposit, all properly drawn checks, drafts, non-negotiable withdrawal
orders, and other commercial paper items relating to the Deposits (the "Paper
Items" and any ACH and wire transactions) timely presented to it by mail, over
its counters, or through clearings by depositors whose deposits or accounts on
which such items are drawn are included within the Deposits, whether drawn on
the check or draft forms provided by Seller or by Purchaser, all in accordance
with applicable law and the provisions of such accounts in effect as of the
Closing Date, until such provisions are properly modified or canceled by
Purchaser.
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6.4 PAPER ITEMS.
(a) Purchaser shall mail or forward, without expense to customers,
to the last known address of all customers of the Branches, immediately on
or after the Closing Date, and in any event by means reasonably designed
to be received by such customers within five (5) calendar days following
the Closing Date, Paper Items (including, without limitation, coupon books
for loans, checks, drafts and withdrawal orders) bearing Purchaser's own
imprint for use by such customers. Such Paper Items shall be accompanied
by a letter approved by Seller requesting that such depositors promptly
cease writing Paper Items (including, without limitation, checks and
drafts) bearing Seller's name or imprint against such Accounts and to
destroy all Paper Items held by such customers that bear the Seller's name
or imprint.
(b) Purchaser shall provide to Seller (and the Federal Reserve, if
necessary) information necessary to expedite the clearing of the Paper
Items. For a period of sixty (60) calendar days following the Closing Date
(the "Inclearing Period"), Seller shall continue to process checks or
drafts drawn on Deposits which are presented to Seller. During the
Inclearing Period, Seller shall credit the Correspondent Account on the
date of receipt of Paper Items and shall promptly send to Purchaser all
Paper Items received for payment. Upon expiration of the Inclearing
Period, Seller shall cease honoring Paper Items presented against Deposits
and such Paper Items shall be returned marked "refer to Maker."
6.5 RETURNED ITEMS. Any items that were credited for deposit to or cashed
against a Deposit prior to the Closing and are returned unpaid or involve
encoding errors or disputes of Regulation E, but excluding foreign items, on or
within sixty (60) calendar days after the Closing Date ("Returned Items") will
be handled as set forth herein. If Seller's account is charged for the Returned
Item, Seller shall forward such Returned Item to Purchaser and shall credit the
Correspondent Account for the full amount of the Returned Item. If upon
Purchaser's receipt of such Returned Item there are sufficient funds in the
Deposit to which such Returned Item was credited or in any other Deposit
transferred at Closing standing in the name of the party responsible for such
Returned Item, Purchaser will debit any or all such Deposits in the amount equal
in the aggregate to the Returned Item. If there are not sufficient funds in the
Deposit, together with all other Deposits transferred at Closing standing in the
name of the party responsible for such Returned Item, for Seller to recover the
full amount of the Returned Item, Seller shall debit the Correspondent Account
for the unrecovered portion of the Returned Item; provided, however, that if
there are not sufficient funds in the Deposit because of Purchaser's failure to
honor holds placed on such Deposits, Seller shall not debit the Correspondent
Account for the unrecovered portion of the Returned Item. Any items that were
credited for deposit to or cashed against a Deposit prior to the Closing and are
returned unpaid more than sixty (60) calendar days after the Closing Date will
be the responsibility of Purchaser; provided, further however, that for a period
of 18 months after the Closing checks drawn on the United States Treasury and
checks issued by state governments and municipalities will be the responsibility
of Seller and for a period of 24 months after closing checks returned for
endorsement irregularities shall be the responsibility of Seller. All amounts
due to either party under this Section 6.5 shall be determined without regard to
any Floor Amount.
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6.6 AUTOMATED CLEARING HOUSE CREDIT AND DEBITS. Immediately after the
Closing Date, Purchaser will send an appropriate "Notification of Change" to all
originators indicating the new routing/transit number and account number for
each of the Accounts receiving Automated Clearing House ("ACH") credits and
debits. On the Closing Date, and on each Business Day during the 90 day period
following the Closing Date, Seller will deliver to Purchaser an ACH transaction
file or a paper listing of all such credit and debit records which Seller, in
the exercise of its reasonable efforts, is able to identify. Seller shall
provide this information to Purchaser each Business Day as soon as practicable,
taking into consideration whether or not the transaction is a same day
settlement transaction or a next day settlement transaction. Seller shall credit
and debit the Correspondent Account for the total debit and total credit
transactions provided. Purchaser will be responsible for crediting and debiting
customers with all ACH transactions in the Accounts.
No later than ninety (90) calendar days after the Closing Date, Seller
will discontinue accepting and forwarding ACH transactions to the Purchaser.
Transactions will be returned to the originators marked "Branch Sold to Another
DFI."
Purchaser agrees to complete and obtain Federal Reserve acceptance of the
ACH Federal Reserve Agreement prior to the Closing Date. All returns received by
Seller for ACH transactions processed before the Closing Date for Accounts owned
by the Purchaser after the Closing Date will be provided to Purchaser as
received for appropriate posting to the Accounts. Simultaneously, Seller will
credit or debit the Correspondent Account as appropriate. Purchaser shall
promptly notify Seller of any ACH Returns which it initiates on any Business Day
after the Closing with respect to the Accounts. Seller will make appropriate
entries to the Correspondent Account.
Seller agrees to provide Purchaser with information on any ACH originators
who are currently settling to Accounts that Purchaser will own subsequent to the
Closing Date. Purchaser shall establish alternative arrangements with such ACH
originators and shall cause such arrangements to be effective as of the Closing
Date. Seller will not accept transactions from these ACH originators after
Closing Date.
6.7 WIRE TRANSFERS. Effective the day after the Closing Date, Seller will
not accept wire transfers for the Accounts. Wire transfers will be returned to
the originator as soon as practicable indicating "branch no longer owned by
Seller." At least fifteen (15) calendar days prior to the Closing Date,
Purchaser shall notify all wire transfer originators of the new routing and
transit number and account number and to instruct such originators that such
numbers are to be used only for wire transfers initiated on or after the day
after the Closing Date. Seller will, to the best of its ability, provide
Purchaser with information on Accounts originating and receiving wire transfers.
Purchaser agrees to complete all necessary Federal Reserve wire transfer
arrangements and have such arrangements accepted by the Federal Reserve prior to
the Closing Date.
6.8 ESCHEATABLE DEPOSITS. Purchaser shall be solely responsible for the
proper reporting and transmission to the State of Ohio of escheatable deposits
from and after the Closing Date. Seller shall provide to Purchaser a listing of
the last date of contract with any depositor of a Deposit that will become
subject to escheat.
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6.9 MAINTENANCE OF RECORDS. Through the Closing Date, Seller will maintain
the Records relating to the Assets and Liabilities being transferred at the
Closing in the same manner and with the same care that the Records have been
maintained prior to the execution of this Agreement. All Records whether held by
Purchaser or Seller, shall be maintained for such periods as are required by
law, unless the parties shall, applicable law permitting, agree in writing to a
different period. From and after the Closing Date, each of the parties shall
permit the other reasonable access to any applicable Records in its possession
relating to matters arising on or before the Closing Date and reasonably
necessary in connection with any claim, action, litigation or other proceeding
involving the party requesting access to such Records or in connection with any
legal obligation owed by such party to any present or former depositor or other
customer; provided, however, that a party shall be entitled to fees, for the
level of service requested, for any Research of Records required by the other
party after the Closing Date, provided that the charge for Research shall not
exceed $30.00 per hour and $4.00 per check copy. Moreover, following the Closing
Date, Purchaser Agrees to maintain database information cross referencing the
Seller's account number for transferred customers in order to facilitate any
post Closing Research to be performed by Seller at Purchaser's request or as
required by law.
6.10 ▇▇▇ AND ▇▇▇▇▇ ACCOUNTS. Seller shall make available to Purchaser on
or before the Closing Date, Seller's documents for each ▇▇▇ or ▇▇▇▇▇ Account
which is included in the Deposits; provided that Seller shall retain such amount
of the records necessary for Seller to prepare and file reports with government
agencies for periods prior to the Closing Date. Purchaser will prepare and file
all reports to government authorities required to be filed for the period
commencing on the Closing Date. Purchaser agrees to indemnify Seller (without
regard to any Floor Amount or Ceiling Amount) for any liability incurred by
Seller for any inconsistency of such reports with the Records provided by Seller
so long as Seller's records are accurate in all relevant respects. Seller will
prepare and file all reports to government authorities required to be filed for
prior periods and shall indemnify Purchaser for any liability associated
therewith.
6.11 ATM/DEBIT CARDS. Seller will provide Purchaser with a list of ATM
access cards and debit cards issued by Seller to depositors of any Deposits, and
a data processing record in Seller's standard file format containing mailing
addresses for each of the depositors of the Deposits and all related account
information required to support an automated conversion, as soon as practicable
after the receipt of all approvals by bank regulatory authorities for the
transactions hereby contemplated (except for the expiration of any statutory
waiting periods. At or promptly after the Closing, Seller will provide Purchaser
with a revised data processing record. Seller will not be required to disclose
to Purchaser customer's PINs or algorithms or logic used to generate PINs. ATM
access cards and debit cards issued by the Seller will be deactivated after the
Close of Business on the Closing Date. Purchaser shall reissue ATM access cards
and debit cards to Depositors prior to the Closing Date, which cards shall be
effective as of the Closing Date. Seller agrees to settle any and all ATM
transactions affected on or before the Closing Date, but processed after the
Closing Date, within ten (10) Business Days after the Closing Date, and to debit
or credit, as the case may be, the Correspondent Account for such amounts.
Seller further agrees that debit card transactions affected on or before the
Closing Date will be processed in accordance with Section 6.4(b).
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6.12 DATA PROCESSING CONVERSION OF DEPOSITS AND HANDLING OF CERTAIN ITEMS.
The conversion date of the data processing with respect to the Assets and
Liabilities will be the Closing Date, unless otherwise agreed by the parties.
Seller and Purchaser agree to cooperate to ensure the orderly transfer of all
data processing information. Purchaser acknowledges and agrees that the customer
contracts and customer identification information with respect to Deposits
(including without limitation customer signature cards) are maintained by Seller
in digital format according to Seller's standard procedures and that such
information will be made available to Purchaser in such format.
6.13 STATEMENT OF ACCOUNTS. Promptly following the Closing, Seller will
provide to customers final statements, including interest payments/credits of
Accrued Interest for all Accounts, other than passbook savings, ▇▇▇ Accounts and
▇▇▇▇▇ Accounts, in the Deposits as of the Closing.
6.14 CONTINUING AVAILABILITY OF RECORDS; ACCOUNT HISTORIES. After the
Closing, Seller will retain for such period as required by Seller's internal
retention policies all Records which have not been delivered to Purchaser at any
time prior thereto. Seller shall, upon request, use reasonable efforts to assist
Purchaser in obtaining information (such as photocopies, source of receipt,
etc.) relating to Account histories prior to Closing and to perform and provide
all Research, including microfilm copies of activities prior to Closing.
Purchaser shall reimburse Seller for its costs in providing such information and
Research. Seller also shall designate in writing appropriate persons for
Purchaser to contact so as to obtain information regarding customer inquiries,
including, if applicable, relevant accounting information concerning the
Deposits.
6.15 DEPOSIT COLLATERAL. Seller has pledged or otherwise encumbered the
Assets of Seller listed in Schedule 6.15 under the Deposit Collateral Security
Agreements to secure all of Seller's obligations to perform under the Deposits
set forth therein. Purchaser understands and agrees that the Deposit Collateral
shall at all times be considered, unless otherwise sold to Purchaser in
accordance with this Agreement, the sole property of Seller and that Purchaser
shall have no right, title or interest in or to such Deposit Collateral or any
of the proceeds therefrom. Purchaser agrees to obtain a full and unconditional
release of all liens, claims or encumbrances on the Deposit Collateral
represented by the Deposit Collateral Security Agreements, or otherwise arising
out of such pledge, by substituting collateral of Purchaser satisfactory to such
depositors or otherwise, on or before the Closing. Seller shall cooperate with
Purchaser in obtaining such releases. In the event that Purchaser, after
exercising its good faith efforts, is unable to obtain the release of the
Deposit Collateral Security Agreements prior to Closing, Purchaser hereby agrees
that Purchaser will purchase the Deposit Collateral on the Closing Date at a
price equal to the Deposit Collateral Value.
6.16 VENDOR RELATIONSHIPS. Purchaser acknowledges that Seller may
terminate all of its vendor relationships related to Branch operations effective
as of the Closing Date and it shall be the responsibility of Purchaser to assume
such relationships or replace them as of the Closing Date.
6.17 FURTHER ASSURANCES. Each of Seller and Purchaser will execute,
acknowledge and deliver such instruments and take such other actions as the
other party may reasonably require in
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order to carry out the intent of this Agreement. On and after the Closing Date,
each party will promptly deliver to the other all mail and other communications
which are properly addressable or deliverable to the other as a consequence of
the transactions pursuant to this Agreement. The costs incurred by a party in
performing its obligations to the other under this Section 6.17 shall be borne
equally by Purchaser and Seller. Purchaser and Seller will cooperate with one
another to minimize the costs referred to herein.
ARTICLE VII.
TAXES AND EMPLOYEE BENEFITS
7.1 PRORATION OF TAXES. Except as otherwise agreed to by Purchaser and
Seller, whenever it is necessary to determine the liability for Taxes for a
portion of a taxable year or period that begins before and ends after the
Closing Date, the determination of the Taxes for the portion of the year or
period ending on, and the portion of the year or period beginning after, the
Closing Date shall be determined by assuming that the taxable year or period
ended at the Close of Business on the Closing Date.
7.2 INTEREST REPORTING AND WITHHOLDING. Unless otherwise agreed by the
parties:
(a) Seller will report to applicable taxing authorities and holders
of Deposits transferred on the Closing Date, with respect to the period
from January 1 of the year in which the Closing Date occurs through the
Closing Date, all interest credited to, withheld from and any early
withdrawal penalties imposed upon the Deposits.
(b) Purchaser will report to the applicable taxing authorities and
holders of Deposits, with respect to all periods from and after the day
after the Closing Date, all such interest credited to, withheld from and
early withdrawal penalties imposed upon such Deposits.
(c) Any amounts required by any governmental agencies to be withheld
from any of the Deposits through the Closing Date will be withheld by
Seller in accordance with applicable law or appropriate notice from any
governmental agency and will be remitted by Seller to the appropriate
agency on or prior to the applicable due date. Any such withholding
required to be made subsequent to the Closing Date shall be withheld by
Purchaser in accordance with applicable law or the appropriate notice from
any governmental agency and will be remitted by Purchaser to the
appropriate agency on or prior to the applicable due date. Within thirty
(30) calendar days after the Closing Date, Seller shall pay to Purchaser
that portion of any sums theretofore withheld by Seller from any Deposits
transferred on the Closing Date which are or may be required to be
remitted by Purchaser pursuant to the foregoing and shall directly remit
to the applicable governmental agency that portion of any such sums which
are required to be remitted by Seller.
(d) Seller will make all required reports to applicable Tax
authorities and to obligors on Deposit Related Loans purchased on the
Closing Date, with respect to all
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periods from and after January 1 of the year in which the Closing Date
occurs through the Closing Date, concerning all such interest and points
received by Seller.
(e) Purchaser will make all required reports to applicable Tax
authorities and to obligors on Deposit Related Loans purchased on the
Closing Date, with respect to all periods from and after the Closing Date,
concerning all such interest and points received by Purchaser.
7.3 SALES AND TRANSFER TAXES, TITLE INSURANCE. Except as otherwise agreed
in writing by the parties, all excise, sales, use, recording fees and closing
fees, that arise as a result of consummation of this Agreement shall be paid by
Purchaser and Purchaser shall indemnify and hold Seller harmless from and
against any such taxes, premiums or fees. Deed and transfer taxes and premiums
for title insurance shall be paid by Seller.
7.4 ASSISTANCE AND COOPERATION. After the Closing Date, each of Seller and
Purchaser shall:
(a) Make available to the other and to any taxing authority as
reasonably requested all relevant information, records, and documents
relating to Taxes with respect to the Assets or income therefrom, the
Liabilities or payments in respect thereof, or the operation of the
Branches;
(b) Provide timely notice to the other in writing of any pending or
proposed Tax audits (with copies of all relevant correspondence received
from any Taxing authority in connection with any Tax audit or information
request) or assessments with respect to the Assets or the income
therefrom, the Liabilities or payments in respect thereof, or the
operation of the Branches for taxable periods for which the other may have
a liability under this Article 7; and
(c) The party requesting assistance or cooperation shall bear the
other party's out-of-pocket expenses in complying with such request to the
extent that those expenses are attributable to fees and other costs of
unaffiliated third-party service providers.
7.5 EMPLOYEE BENEFITS.
(a) Purchaser shall make commercially reasonable efforts to employ
the Employees as of the day following the Closing Date on terms and
conditions (including compensation and benefits) typically provided by
Purchaser to its employees; provided, however that nothing in this Section
7.5(a) shall obligate Purchaser to hire any Employee, or to provide any
Employee with the same job position as such Employee held with Seller.
Within sixty (60) calendar days of the date of this Agreement, Purchaser
shall provide to Seller Schedule 7.5(a), indicating the Employees that
Purchaser expects to hire on the Closing Date ("Hired Employees" are those
employees of Seller immediately prior to the Closing Date who become
employees of Purchaser the day following the Closing Date). Purchaser
acknowledges that Seller has made no assurances to Purchaser with respect
to such Employees accepting positions with Purchaser.
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(b) Purchaser shall cause its health plans to waive any otherwise
applicable waiting period or other eligibility requirements so that Hired
Employees are eligible for heath care coverage as of Closing. Subject to
insurer requirements, Purchaser agrees to ensure that any preexisting
condition clause in any of Purchaser's health or disability insurance
coverage shall not be applicable to Hired Employees.
(c) Seller shall be responsible for payments, if any, for accrued
vacation, sick or other personal time off, not taken by an Employee prior
to the Closing Date and for all earned incentive compensation including
bonuses, if any, with respect to service completed prior to the Closing
Date.
(d) Seller shall retain the responsibility for payment of all
medical, dental, health and disability claims incurred by any Employee on
or prior to the Closing Date and Purchaser shall not assume any liability
with respect to such claims, including liability for continuing payments
after Closing for claims incurred at or prior to the Closing. Purchaser
assumes responsibility for payment of all medical, dental, health and
disability claims reported by Hired Employees after the Closing Date. For
purposes of this Section 7.5(d) claims are incurred at the time the
services are performed or the disability is confirmed and not at the time
a claim for benefits related to such injury or disability is made.
(e) Seller agrees that it shall retain, consistent with its normal
employment practices, all liability and obligation, if any for those
former employees of the Branches who retired or terminated employment
prior to or on the Closing Date or otherwise do not become Hired
Employees.
(f) Effective as of the Closing Date, Purchaser shall assume
liability for severance pay and similar obligations payable to any Hired
Employee who is terminated by Purchaser after the Closing Date. Such
payment shall be made by Purchaser in accordance with Purchaser's normal
severance policies. Purchaser shall credit Hired Employees for their
length of service with Seller for all purposes under each employee benefit
and fringe benefit plan to be provided by Purchaser to such Hired
Employees to the same extent such service was recognized under similar
plans of Seller and limited only to Purchaser's plans in effect on the
Closing Date or adopted within one year thereof. Such service, however,
need only be counted for purposes of vesting, eligibility and rate of
prospective benefit accrual under any pension benefit plan.
(g) Effective as of the Closing Date, Purchaser shall assume,
consistent with Purchaser's employee benefit plans and fringe benefits
applicable to employees of comparable responsibility, all liability for,
and Seller shall have no liability or obligation for any medical, dental
and health benefits for claims incurred after the Closing Date for the
Hired Employees who as of the Closing Date are absent from work due to
sickness or short-term disability.
(h) Purchaser and Seller do not intend that this Article should
provide any rights to Employees or Hired Employees as third-party
beneficiaries of this Agreement but
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only provide for Purchaser's and Seller's respective rights and
obligations as between themselves. Nothing in this Article constitutes an
offer of employment or contract of employment by Purchaser or Seller.
ARTICLE VIII.
CONDITIONS TO CLOSING
8.1 CONDITIONS TO OBLIGATIONS OF PURCHASER. Unless waived in writing by
Purchaser, the obligation of Purchaser to consummate the transactions
contemplated by this Agreement to be consummated at the Closing is conditioned
upon fulfillment, at or before the Closing, of each of the following conditions:
(a) Governmental and Regulatory Consents. All consents, approvals
and authorizations required to be obtained prior to the Closing from
governmental and regulatory authorities in connection with the execution
and delivery of this Agreement and the consummation of the transactions
contemplated hereby, including the Regulatory Approvals, shall have been
made or obtained, and shall remain in full force and effect; all waiting
periods applicable to the consummation of the transactions contemplated
hereby shall have expired or been terminated; and all required regulatory
filings shall have been made.
(b) Representations and Warranties. Each of the representations and
warranties of Seller contained in this Agreement shall be true in all
material respects when made and as of the Closing Date, with the same
effect as though such representations and warranties had been made on and
as of the Closing Date (except that representations and warranties that
are made as of a specific date need to be true in all material respects
only as of such date, and except that representations and warranties
relating to Assets and Liabilities to be transferred at the Closing Date
shall only be made, and need only be true in all material respects, on and
as of the Closing Date), each of the representations and warranties in
this Agreement that contains an express materiality qualification, shall
have been accurate in all respects as of the date of this Agreement, and
shall be accurate in all respects as of the time of the Closing as if then
made, each of the covenants and agreements of Seller to be performed on or
prior to the Closing Date shall have been performed in all material
respects; and Purchaser shall have received at Closing a certificate to
that effect as to the representations, warranties, covenants and
agreements dated as of the Closing Date and executed by the Chairman of
Seller ("Seller's Officer's Certificate").
8.2 CONDITIONS TO OBLIGATIONS OF SELLER. Unless waived in writing by
Seller, the obligation of Seller to consummate the transactions contemplated by
this Agreement to be consummated at the Closing, is conditioned upon
fulfillment, at or before the Closing, of each of the following conditions:
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(a) Governmental and Regulatory Consents. All consents, approvals,
permits and authorizations required to be obtained prior to the Closing
from governmental and regulatory authorities in connection with the
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby shall have been made or obtained and
shall remain in full force and effect; and all waiting periods applicable
to the consummation of the transactions contemplated hereby shall have
expired or been terminated and all required regulatory filings shall have
been made.
(b) Representations and Warranties. Each of the representations and
warranties of Purchaser contained in this Agreement shall be true in all
material respects when made and as of the Closing Date, with the same
effect as though such representations and warranties had been made on and
as of the Closing Date (except that representations and warranties that
are made as of a specific date need be true in all material respects only
as of such date). Each of the covenants and agreements of Purchaser to be
performed on or prior to the Closing Date shall have been performed in all
material respects and Seller shall have received at the Closing a
certificate to that effect as to the representations, warranties,
covenants and agreements dated as of such Closing Date and executed by the
Chief Executive Officer, Chief Financial Officer or any Executive Officer
of Purchaser ("Purchaser's Officer's Certificate").
ARTICLE IX.
CLOSING PROCEDURES
9.1 CLOSING DATE AND PLACE. The Closing will be held at the offices of
Seller at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇ at 5:00 P.M. on the 31st
day following receipt of Regulatory Approval, provided, however, if such 31st
day is not a Friday then the Closing shall be held on the next succeeding
Friday, or such other date and time as is mutually agreed upon by Seller and
Purchaser (the "Closing Date") and shall be effective as of the Close of
Business on the Closing Date.
9.2 PAYMENT DUE AT CLOSING. Seller shall pay the Cash Payment to Purchaser
at the Closing by wire transfer of immediately available funds to an account
designated in writing by Purchaser. Seller shall prepare and deliver to
Purchaser at the Closing a statement (the "Preliminary Settlement Statement"),
substantially in the form of Exhibit B hereto and supported by appropriate
schedules and exhibits, showing the computation of the Cash Payment.
9.3 CLOSING DOCUMENTS TO BE DELIVERED OR ACTIONS TO BE TAKEN BY SELLER. At
the Closing, Seller shall:
(a) deliver to Purchaser the following schedules:
(i) a schedule ("Schedule 9.3(a)(i)") indicating the amount and
location of the Cash on Hand as of the Close of Business on the
Business Day preceding the Closing Date;
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(ii) a schedule ("Schedule 9.3(a)(ii)") indicating the amount
and nature of each Prepaid Expense and Accrued Expense as of the
Close of Business on the Business Day preceding the Closing Date;
(iii) Schedule 3.4 summarizing the balances of Deposits,
including Accrued Interest thereon, as of the Close of Business on a
date set forth thereon;
(iv) Schedule 3.5 listing the Furniture, Fixtures and
Equipment;
(v) an updated Schedule 3.6 summarizing the Deposit-Related
Loans and Other Loans and reflecting the balance of such loans,
including Accrued Interest thereon, as of the Close of Business on a
date no more than five (5) Business Days prior to the Closing Date;
(vi) an updated Schedule 1.1(e) listing the Uncollectible
Loans;
(vii) an updated Schedule 1.1(a) giving effect to any Assumed
Contracts excluded pursuant Section 5.9.
(b) execute and deliver to Purchaser or to Purchaser's title company
deeds conveying title to the Branch Real Estate to Purchaser;
(c) execute and deliver to Purchaser an Assignment and Assumption
Agreement, substantially in the form attached hereto as Exhibit C;
(d) execute and deliver to Purchaser a ▇▇▇▇ of Sale and Assignment
in the form attached hereto as Exhibit D with respect to Deposit-Related
Loans;
(e) deliver to Purchaser possession of the Assets, subject to any
Seller Leases thereon;
(f) deliver to Purchaser such safe deposit and safekeeping files and
Records pertaining to the Safe Deposit Business as exist and are
available, together with the contents of the safe deposit boxes maintained
at the Branches, as the same exist as of the Close of Business on the
Closing Date;
(g) execute and deliver to Purchaser a Retirement Account Transfer
Agreement in the form attached hereto as Exhibit E;
(h) deliver to Purchaser Seller's Officer's Certificate, dated as of
the Closing Date, substantially in the form attached hereto as Exhibit F;
(i) deliver or cause to be delivered to Purchaser all other
documents and instruments necessary to transfer to Purchaser all of
Seller's right, title and interest in and to the Assets and use its best
efforts to obtain consents from third persons required to effect the
assignments set forth in the Assignment and Assumption Agreement;
35
(j) deliver to the Purchaser's title company all documents and
instruments (including, without limitation, a closing affidavit sufficient
to enable the title company to delete the Standard Exceptions from the
title policies) reasonably necessary to enable the title company to record
the real property deeds for each parcel of Branch Real Estate to be
conveyed to Purchaser hereunder and issue the title policies without any
Unpermitted Encumbrances as of the Closing Date;
(k) deliver to Purchaser the originals of each Seller Lease, to the
extent originals are in Seller's possession and copies of each Seller
Lease if originals are not in Seller's possession;
(l) deliver to Purchaser all Escrow Balances;
(m) execute and deliver to Purchaser a certificate of the Seller
stating that Seller is not a "foreign" person within the meaning of
Section 1445 of the Code, which certificate shall set forth all
information required by, and otherwise be executed in accordance with,
Treasury Regulation Section 1.1445-2(b)(2); and
(n) execute and deliver to Purchaser a limited power of attorney
executed by Seller with respect to assignment and recording of mortgages
securing the Other Loans, substantially in the form attached hereto as
Exhibit I.
9.4 CLOSING DOCUMENTS TO BE DELIVERED OR ACTIONS TO BE TAKEN BY PURCHASER.
At the Closing Date, Purchaser shall:
(a) execute and deliver to Seller an Assignment and Assumption
Agreement in the form attached hereto as Exhibit C;
(b) execute and deliver to Seller a Retirement Account Transfer
Agreement in the form attached hereto as Exhibit E;
(c) deliver to Seller the Purchaser's Officer's Certificate, dated
as of the Closing Date, substantially in the form attached hereto as
Exhibit G;
(d) deliver or cause to be delivered to Seller all other documents
and instruments necessary to evidence Purchaser's assumption of the
Liabilities;
(e) deliver to the title company all documents and instruments
reasonably necessary to enable the title company to record the real
property deeds for each parcel of Branch Real Estate to be conveyed to
Purchaser hereunder and to issue the title policies as of the Closing
Date; and
(f) deliver to Seller a certificate from the FDIC and Purchaser's
principal regulator indicating that Purchaser is a validly existing
financial institution and is a
36
member of the BIF and its deposits are insured by the FDIC, subject to
applicable FDIC coverage limitations.
9.5 POST CLOSING ADJUSTMENTS.
(a) As soon as reasonably practicable after the Closing Date, but no
later than ten (10) Business Days thereafter, Seller shall prepare and
deliver to Purchaser:
(i) an updated Schedule 3.4 (Deposits) that shall accurately
reflect the related balances, including Accrued Interest thereon, as
of the Close of Business on the Closing Date;
(ii) an updated Schedule 3.6 (Loans) that shall accurately
reflect the related balances, including Accrued Interest thereon, as
of the Close of Business on the Closing Date;
(iii) an updated Schedule 9.3(a)(i) that shall accurately
reflect the amount of Cash on Hand as of the Close of Business on
the Closing Date, which schedule shall be prepared by Seller based
upon a cash count to be mutually conducted by Seller and Purchaser
at the Close of Business on the Closing Date; and
(iv) an updated Schedule 9.3(a)(ii) that shall accurately
reflect the amount of Net Prepaid Expenses as of the Close of
Business on the Closing Date.
(b) As soon as reasonably practicable after the Closing Date, but no
later than five (5) Business Days thereafter, Seller shall prepare and
deliver to Purchaser a final settlement statement (the "Final Settlement
Statement") substantially in the form of Exhibit H hereto, and supported
by appropriate schedules and exhibits, which shall show the calculation of
the Final Payment Amount based upon the updated schedules delivered
pursuant to this Section 9.5.
(c) The final payment amount shown on the Final Settlement Statement
(the "Final Payment Amount") shall be paid in the following manner: if the
Cash Payment shall have been greater than the Final Payment Amount,
Purchaser shall refund to Seller the difference between such amounts; if
the Cash Payment shall have been less than the Final Payment Amount,
Seller shall pay to Purchaser the difference between such amounts. Such
refund or payment shall be made simultaneous with the delivery of such
Final Settlement Statement, by a credit or charge to the Correspondent
Account for the Final Payment Amount together with interest thereon for
the number of calendar days from and including the Closing Date to such
settlement date, but excluding such settlement date, at the rate per annum
equal to the Federal Funds Rate.
(d) The Final Settlement Statement shall be final and binding upon
Purchaser five (5) Business Days after delivery unless Purchaser gives
written notice to Seller setting forth with specificity any objection
Purchaser has with respect to any item contained in the
37
Final Settlement Statement ("Purchaser's Objection"). Seller and Purchaser
shall use their reasonable best efforts to resolve any disagreement during
the ten (10) day period following receipt by Seller of Purchaser's
Objection. If Purchaser and Seller are unable to resolve their
disagreement within such ten-day period, the [Minneapolis, Minnesota]
office of the accounting firm of R.S. McGladrey shall resolve such
disagreement and modify the Final Settlement Statement accordingly, which
shall thereafter be deemed final and binding.
(e) Purchaser and Seller shall share equally in the cost of any
accountant unless the adjustment in the Final Settlement Statement does
not increase Seller's payment to Purchaser, in which case all costs of
such accountant shall be borne by Purchaser.
ARTICLE X.
TERMINATION
10.1 TERMINATION. This Agreement may be terminated at any time prior to
the Closing Date:
(a) by the mutual consent of Purchaser and Seller;
(b) by Seller or Purchaser, in the event of a material breach by the
other of any representation, warranty or covenant contained herein which
is not cured or cannot be cured within thirty (30) calendar days after
written notice of such termination has been delivered to the breaching
party; provided, however, that termination pursuant to this Section
10.1(b) shall not relieve the breaching party of liability for such breach
or otherwise;
(c) by Seller in the event Purchaser has not filed all applications
necessary to obtain the Regulatory Approvals within fifteen (15) calendar
days after the date hereof unless such failure to file all applications to
obtain the Regulatory Approvals within fifteen (15) calendar days of the
date hereof is the result of a breach of the terms of this Agreement by
Seller;
(d) by Seller in the event that the Closing has not occurred by the
Termination Date (provided that Closing has not been delayed (i) because
of the Seller's inability to close because of data processing delays or
(ii) as a result of a breach of the terms of this Agreement by Seller or
of the action by or condition of Seller), and by Purchaser in the event
that the Closing has not occurred by the Termination Date (provided that
Closing has not been delayed (i) because of Purchaser's inability to
perform its obligations hereunder or (ii) as a result of a breach of the
terms of this Agreement by Purchaser or of the action by or condition of
Purchaser);
(e) (i) by Seller at any time after the denial or revocation of any
Regulatory Approval (unless such denial is a result of an action by or
condition of, Seller) or if, at any time prior to the Closing Date, the
applicable governmental and regulatory authorities
38
whose consents, approvals and authorizations are required in order for
Purchaser to consummate the transactions contemplated hereby shall have
indicated that such authorities will not grant such consents, approvals
and authorizations, (ii) by Purchaser at any time after the denial or
revocation of any Regulatory Approval (unless such denial is a result of
an action by or the condition of, Purchaser) or if, at any time prior to
the Closing Date, the applicable governmental and regulatory authorities
whose consents, approvals and authorizations are required in order for
Seller to consummate the transactions contemplated hereby shall have
indicated that such authorities will not grant such consents, approvals
and authorizations;
(f) (i) by Seller at any time upon withdrawal by Purchaser of its
application for Regulatory Approval (unless such withdrawal is a result of
communication by one of the applicable governmental and regulatory
authorities whose consents, approvals and authorizations are required in
order to consummate the transactions contemplated herein of its
unwillingness to grant Regulatory Approval on or before the Target Date as
a result of an action by or the condition of Seller), (ii) by Purchaser at
any time upon withdrawal by Purchaser of its application for Regulatory
Approval (unless such withdrawal is a result of communication by one of
the applicable governmental and regulatory authorities whose consents,
approvals and authorizations are required in order to consummate the
transactions contemplated herein of its unwillingness to grant Regulatory
Approval on or before the Target Date as a result of an action by or the
condition of Purchaser).
(g) by Purchaser in accordance with Sections 5.4, 5.5 and 5.9.
10.2 EFFECT OF TERMINATION. In the event of termination of this Agreement
and abandonment of the transactions contemplated hereby pursuant to Section
10.1, no party hereto (or any of its directors, officers, employees, agents or
Affiliates) shall have any liability or further obligation to any other party,
except as provided in Sections 2.2 and 5.2 and except that nothing herein will
relieve any party from liability for any breach of this Agreement.
ARTICLE XI.
INDEMNIFICATION
11.1 INDEMNIFICATION.
(a) Seller shall indemnify Purchaser and hold Purchaser harmless
from and against any and all Losses which Purchaser may suffer, incur or
sustain as a result of (i) any misrepresentation in any representation or
warranty made by Seller pursuant to this Agreement, (ii) any breach or
failure to perform any agreement of Seller contained in this Agreement, or
(iii) subject to Section 5.4(f) hereof, any claim, penalty, legal action
or administrative action asserted by a third party (a "Claim") based on
any action by Seller relating to the operation of the Branches or the
Liabilities (including Seller Leases) prior to the Closing Date.
(b) Purchaser shall indemnify Seller and hold Seller harmless from
and against any and all Losses which Seller may suffer, incur or sustain
arising as a result of (i) any
39
misrepresentation in any representation or warranty made by Purchaser
pursuant to this Agreement, (ii) any breach or failure to perform any
agreement of Purchaser contained in this Agreement, or (iii) any Claim
based on any action by Purchaser relating to the operation of the Branches
or the Liabilities (including Seller Leases) after the Closing Date.
(c) In the event that either of the indemnified parties hereto is
made a defendant in or party to any Claim, the indemnified party shall
give the indemnifying party prompt notice thereof, provided, however, that
notice of the original claim for indemnification with respect to a claim
for indemnification under Section 3.13 (Environmental Matters) shall have
been given prior to the expiration of two (2) years from the Closing Date.
The parties agree that so long as an original claim for indemnification is
provided within the applicable time period set forth above, any Losses
which may be subsequently incurred arising from such claim shall be the
responsibility of the indemnifying party. If the indemnifying party
determines that the indemnified party is entitled to indemnification and
wishes to contest the Claim, the indemnifying party shall provide notice
of its intention to contest and defend the Claim to the indemnified party
within twenty (20) Business Days after the indemnified party's notice of
such Claim (unless a shorter response period is required under the
circumstances). Such contest and defense shall be conducted by reputable
attorneys employed by the indemnifying party. The indemnified party shall
be entitled at any time, at its own cost and expense, to participate in
such contest and defense and to be represented by attorneys of its or
their own choosing. If the indemnified party elects to participate in such
defense, the indemnified party will cooperate with the indemnifying party
in the conduct of such defense. Neither the indemnified party nor the
indemnifying party may concede, settle or compromise any Claim without the
consent of the other party, which consents will not be unreasonably
withheld.
(d) In the event any indemnified party should have a claim against
any indemnifying party that does not involve a Claim, the indemnified
party shall deliver a notice of such claim with reasonable promptness to
the indemnifying party; provided, however, that notice of the original
claim for indemnification shall have been given prior to the expiration of
one year from the Closing Date, or, with respect to claims arising out of
a breach of Seller's obligations under 3.13 (Environmental Matters),
notice of the original claim for indemnification shall have been given
prior to the expiration of two (2) years from the Closing Date. A claim
for indemnification arising out of breach of Seller's obligations under
the last clause of Section 6.5, may be presented at any time during the
time periods set forth therein. The parties agree that so long as an
original claim for indemnification is provided within the applicable time
period set forth above, any Losses which may be subsequently incurred
arising from such claim shall be the responsibility of the indemnifying
party. If the indemnifying party notifies the indemnified party that it
does not dispute the claim described in such notice or fails to notify the
indemnified party within thirty (30) calendar days after delivery of such
notice by the indemnified party whether the indemnifying party disputes
the claim described in such notice, the Loss in the amount specified in
the Indemnified party's notice will be conclusively deemed a liability of
the indemnifying party and the indemnifying party shall pay the amount of
such Loss to the indemnified party on demand. If the indemnifying party
has timely disputed its
40
Liability with respect to such claim, the officers of each of the
indemnifying party and the indemnified party will proceed in good faith
for no less than sixty (60) calendar days, to negotiate a resolution of
such dispute.
(e) For all purposes of this Section 11.1, an indemnifying party
shall not be responsible for paying for any Losses until such time as the
cumulative amount of Losses related to matters subject to the indemnifying
party's indemnity hereunder shall exceed fifty thousand dollars ($50,000)
(the "Floor Amount") and, upon reaching the Floor Amount, the indemnifying
party shall be responsible for paying only those Losses above and beyond
twenty-five thousand dollars ($25,000.00) and the indemnified party shall
be liable for all such Losses up to twenty-five thousand dollars
($25,000.00).
(f) For purposes of Sections 11.1(a)(i) and 11.1(b)(i) only: (i) an
indemnifying party shall not be responsible for paying for any Losses to
the extent that the aggregate amount of such Losses exceeds one million
dollars ($1,000,000) (the "Ceiling Amount"), and (ii) the indemnification
set forth in this Section 11.1 shall be the indemnified party's sole and
exclusive remedy for any Losses occurring or arising as a result of any
misrepresentation in any representation or warranty made by an
indemnifying party pursuant to this Agreement.
(g) For purposes of Sections 11.1(a)(ii) and 11.1(b)(ii) only: (i)
an indemnifying party shall not be responsible for paying for any Losses
to the extent that the aggregate amount of such Losses exceeds the Ceiling
Amount, and (ii) the indemnification set forth in this Section 11.1 shall
not be the indemnified party's sole and exclusive remedy for any Losses
occurring or arising as a result of any breach or failure to perform any
agreement contained in this Agreement.
ARTICLE XII.
MISCELLANEOUS
12.1 SURVIVAL. The parties' respective representations and warranties
contained in this Agreement shall survive until the first anniversary of the
Closing and thereafter neither party may claim any damage for breach thereof;
provided, however, that the Seller's representations and warranties contained in
Section 3.13 (Environmental Matters) shall survive until the second anniversary
of the Closing and thereafter Purchaser may not claim any damage for breach
thereof and Seller's obligations under the last clause of Section 6.5 shall
survive until expiration of the time periods set forth therein.
12.2 ASSIGNMENT. Neither this Agreement nor any of the rights, interests
or obligations of either party hereunder may be assigned by either of the
parties hereto without the prior written consent of the other party.
12.3 BINDING EFFECT. This Agreement and all of the provisions hereof shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
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12.4 PUBLIC NOTICE. Prior to the Closing Date, neither Purchaser nor
Seller shall directly or indirectly, make, or cause to be made, any press
release for general circulation, public announcement or disclosure or issue any
notice or general communication to employees with respect to any of the
transactions contemplated hereby without the prior written consent of the other
party, which consent shall not be unreasonably withheld. Notwithstanding the
foregoing, each party may make such public disclosure as may be required by law
or necessary to obtain the Regulatory Approvals and Notice of such disclosure
shall be given to the other party prior to such disclosure.
12.5 NOTICES. All notices, requests, demands, consents and other
communications given or required to be given under this Agreement and under the
related documents shall be in writing and delivered to the applicable party at
the address indicated below:
If to Seller: Liberty Savings Bank, FSB
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Vice President and General Counsel
With a copy to: Squire, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
If to Purchaser: The State Bank and Trust Company
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: President
With a copy to: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vorys, ▇▇▇▇▇, ▇▇▇▇▇▇▇ and ▇▇▇▇▇ LLP
▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
or, as to each party at such other address as shall be designated by such party
in a written notice to the other party complying as to delivery with the terms
of this Section. Any notices shall be in writing, including telegraphic or
facsimile communication, and may (but need not) be sent by registered or
certified mail, return receipt requested, postage prepaid or telegraphed. Notice
shall be effective upon actual receipt thereof.
12.6 INCORPORATION. All Exhibits and Schedules attached hereto and to
which reference is made herein are incorporated by reference as if fully set
forth herein.
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12.7 GOVERNING LAW. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of Ohio (excluding its choice of law
rules).
12.8 ENTIRE AGREEMENT. This Agreement contains the entire understanding of
and all agreements between the parties hereto with respect to the subject matter
hereof and supersedes any prior or contemporaneous agreement or understanding,
oral or written, pertaining to any such matters which agreements or
understandings shall be of no force or effect for any purpose; provided,
however, that the terms of any confidentiality agreement between the parties
hereto previously entered into, to the extent not inconsistent with any
provisions of this Agreement, shall continue to apply. This Agreement may not be
amended or supplemented in any manner except by mutual agreement of the parties
and as set forth in a writing signed by the parties hereto or their respective
successors in interest. Other than the representations and warranties set forth
in this Agreement and the Exhibits and Schedules hereto, Seller expressly
disclaims any and all liability for and does not warrant the accuracy of any
representations or warranties, or any other written or oral communication
transmitted or made available to Purchaser, including without limitation, the
preliminary sales material distributed to Purchaser by Seller's representative.
12.9 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
12.10 HEADINGS. The headings used in this Agreement are inserted for
purposes of convenience of reference only and shall not limit or define the
meaning of any provisions of this Agreement.
12.11 WAIVER. The waiver of any breach of any provision under this
Agreement each party shall not be deemed to be a waiver of any preceding or
subsequent breach under this Agreement. No such waiver shall be effective unless
in writing.
12.12 EXPENSES. Unless specifically provided otherwise in this Agreement,
each party shall bear and pay all costs and expenses which it incurs, or which
may be incurred on its behalf in connection with the preparation of this
Agreement and consummation of the transactions described herein, and the
expenses, fees, and costs necessary for any approvals of the appropriate
regulatory authorities.
12.13 COMPUTATION OF INTEREST. All computation of interest in respect of
payments required hereunder shall be made on the basis of a year of 365 calendar
days for the actual number of calendar days (including the first day, but
excluding the last day) occurring in the period for which such interest is
payable.
12.14 THIRD-PARTY BENEFICIARIES. Except as expressly provided in this
Agreement, the parties hereto intend that this Agreement shall not benefit or
create any right or cause of action in or on behalf of any person other than the
parties hereto.
12.15 SEVERABILITY. If any provision of this Agreement, as applied to any
part or circumstance, shall be adjudged by a court of competent jurisdiction to
be void, invalid or
43
unenforceable, the same shall in no way effect any other provision of this
Agreement, the application of any such provision and any other circumstances or
the validity or enforceability of the other provisions of this Agreement.
44
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the date first above written.
LIBERTY SAVINGS BANK, FSB
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President
STATE BANK AND TRUST COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President and CFO
45
Schedule 1.1(a) - Assumed Contracts
Schedule 1.1(b) - ATMs
Schedule 1.1(c) - Other Liabilities
Schedule 1.1(d) - Officers with "Knowledge"
Schedule 3.4 - Deposits
Schedule 3.5 - Furniture, Fixtures and Equipment
Schedule 3.6 - Loans
Schedule 3.10 - Litigation and Liabilities
Schedule 3.11 - Regulatory Matters
Schedule 3.13 - Environmental Matters
Schedule 3.16 - Absence of Certain Changes, Etc.
Schedule 4 - Exceptions to Purchaser's Representations and Warranties
Schedule 6.15 - Deposit Collateral
Schedule 7.5(a) - Purchaser's Estimate of Employees to be Hired
Schedule 9.3(a)(i) - Cash on Hand
Schedule 9.3(a)(ii) - Net Prepaid Expenses
46