EXHIBIT 2.1
PURCHASE OF ASSETS AND LIABILITY ASSUMPTION AGREEMENT
BY AND BETWEEN
FIRST CITIZENS BANK
AN OHIO STATE CHARTERED COMMERCIAL BANK
AND
THE ▇▇▇▇▇▇ BANK
AN OHIO STATE CHARTERED COMMERCIAL BANK
OCTOBER 27, 2004
TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS................................................................ 1
1.1 Definitions.................................................. 1
ARTICLE II
TERMS OF PURCHASE AND ASSUMPTION........................................... 6
2.1 Purchase and Sale of Assets.................................. 6
2.2 Assumption of Liabilities.................................... 7
2.3 Purchase Price............................................... 7
2.4 Consideration for Assumption of Liabilities.................. 8
2.5 Excluded Assets.............................................. 8
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER................................... 8
3.1 Organization and Related Matters............................. 8
3.2 Authorization................................................ 8
3.3 No Breaches of Statute or Contract Required Consents......... 8
3.4 Litigation and Related Matters............................... 9
3.5 Consents..................................................... 9
3.6 Deposits..................................................... 9
3.7 Personal Property............................................ 10
3.8 Contracts.................................................... 10
3.9 Real Property................................................ 10
3.10 Compliance with Laws and Regulations......................... 11
3.11 Governmental Notices......................................... 11
3.12 The Acquired Loans........................................... 11
3.13 FIRPTA....................................................... 12
3.14 No Broker's or Finder's Fees................................. 12
3.15 Statements True and Correct.................................. 13
3.16 Employees.................................................... 13
3.17 Environmental Matters........................................ 13
3.18 Records...................................................... 13
3.19 Tax Matters.................................................. 14
3.20 Other Assets................................................. 14
3.21 Exhibits and Schedules....................................... 14
3.22 Community Reinvestment Act; Regulatory Matters............... 14
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER................................ 14
4.1 Organization and Related Matters............................. 14
4.2 Authorization................................................ 15
4.3 No Breaches of Statute or Contract Required Consent.......... 15
4.4 Litigation and Relate Matters................................ 15
4.5 Consents..................................................... 15
4.6 Compliance with Laws and Regulations......................... 15
4.7 Governmental Notices......................................... 15
4.8 No Broker's or Finder's Fees................................. 16
4.9 Community Reinvestment Act; Regulatory Matters............... 16
ARTICLE V
UPDATING OF INFORMATION.................................................... 16
5.1 Cash on Hand................................................. 16
5.2 Deposits..................................................... 16
5.3 Personal Property............................................ 16
5.4 Contracts.................................................... 16
5.5 Acquired Loans............................................... 17
5.6 Other Assets................................................. 17
ARTICLE VI
COVENANTS OF SELLER........................................................ 17
6.1 Operations in Ordinary Course................................ 17
6.2 Deposits..................................................... 17
6.3 Acquired Loans............................................... 18
6.4 Conditions to Closing........................................ 19
6.5 Contracts.................................................... 19
6.6 Consents..................................................... 19
6.7 Conversion; Records.......................................... 19
6.8 Insurance Endorsements....................................... 20
6.9 Loan Documents............................................... 20
6.10 Covenant Not to Compete...................................... 20
6.11 Fees and Expenses............................................ 21
6.12 Investigations............................................... 21
6.13 Acquired Loans............................................... 21
6.14 Proposed Action.............................................. 21
6.15 Limited Right of Purchaser to Put Back Acquired Loans........ 21
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ARTICLE VII
COVENANTS OF PURCHASER..................................................... 21
7.1 Performance of Liabilities................................... 21
7.2 Safe Deposit Business........................................ 22
7.3 Fiduciary Relationships...................................... 22
7.4 Acquired Loans............................................... 22
7.5 Conduct of Business.......................................... 22
7.6 Conditions to Closing........................................ 22
7.7 Records...................................................... 23
ARTICLE VIII
ADDITIONAL AGREEMENTS...................................................... 23
8.1 Regulatory Approvals......................................... 23
8.2 Insurance.................................................... 23
8.3 Further Assurances........................................... 23
8.4 Employees.................................................... 23
8.5 Confidentiality.............................................. 24
8.6 Publicity; Notices........................................... 25
8.7 Tax Reporting................................................ 25
8.8 Interest Reporting........................................... 25
8.9 Withholding.................................................. 26
8.10 Signs........................................................ 26
8.11 Transitional Matters......................................... 26
8.12 Environmental Matters........................................ 27
8.13 Damage or Condemnation....................................... 27
8.14 Title to Real Property....................................... 28
8.15 Escrow Accounts.............................................. 29
ARTICLE IX
CONDITIONS TO OBLIGATION OF PURCHASER...................................... 29
9.1 No Injunctions or Restraints................................. 29
9.2 Conditions Performed......................................... 30
9.3 Representations.............................................. 30
9.4 Consents..................................................... 30
9.5 Documentation................................................ 30
9.6 Collateral Assignment........................................ 30
9.7 Minimum Acquired Loans....................................... 30
9.8 Minimum Acquired Core Deposits............................... 30
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ARTICLE X
CONDITIONS TO OBLIGATION OF SELLER......................................... 31
10.1 No Injunctions or Restraints................................. 31
10.2 Conditions Performed......................................... 31
10.3 Representations.............................................. 31
10.4 Documentation................................................ 31
ARTICLE XI
CONDITIONS TO OBLIGATIONS OF BOTH PARTIES.................................. 31
11.1 Governmental Actions......................................... 31
11.2 Governmental Approvals....................................... 32
ARTICLE XII
THE CLOSING................................................................ 32
12.1 Time and Place of Closing.................................... 32
12.2 Payment Due at Closing....................................... 32
12.3 Closing Documents to be Delivered or Actions to be
Taken by Seller.............................................. 32
12.4 Closing Documents to be Delivered or Actions to be Taken
by Purchaser................................................. 34
12.5 Post-Closing Adjustment...................................... 35
ARTICLE XIII
TRANSFER OF DEPOSIT ACCOUNTS............................................... 35
13.1 Deposit Post-Closing Reconciliation.......................... 35
13.2 Effect of Transitional Action................................ 38
ARTICLE XIV
TERMINATION................................................................ 38
14.1 Events of Termination........................................ 38
14.2 Manner of Termination........................................ 39
14.3 Effect of Termination........................................ 39
ARTICLE XV
INDEMNIFICATION............................................................ 39
15.1 Repurchase of Loan........................................... 39
15.2 Indemnification by Both Parties.............................. 40
15.3 Indemnification by Seller.................................... 40
15.4 Indemnification by Purchaser ................................ 40
15.5 Limitation on Indemnification................................ 40
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ARTICLE XVI
MISCELLANEOUS.............................................................. 41
16.1 Survival of Representations and Warranties; Covenants........ 41
16.2 Taxes; Expenses and Prorations............................... 41
16.3 Notices...................................................... 42
16.4 Entire Agreement; Modifications; Waivers Headings;
Ambiguities.................................................. 42
16.5 Successors and Assigns....................................... 43
16.6 Counterparts................................................. 43
16.7 Governing Law................................................ 43
16.8 Time is of the Essence....................................... 43
16.9 Remedies..................................................... 43
16.10 Attorneys' Fees.............................................. 44
16.11 Severability................................................. 44
EXHIBIT A BRANCH OFFICES OF SELLER
EXHIBIT B FORM OF PRELIMINARY SETTLEMENT STATEMENT
EXHIBIT C IRREVOCABLE LIMITED POWER OF ATTORNEY (UNLIMITED DURATION)
EXHIBIT D FORM OF CERTIFICATE OF NON-FOREIGN STATUS
EXHIBIT E FORM OF ▇▇▇▇ OF SALE AND ASSIGNMENT
EXHIBIT F FORM OF GENERAL ASSIGNMENT
EXHIBIT G FORM OF ASSUMPTION AGREEMENT
EXHIBIT H FORM OF RETIREMENT ACCOUNT TRANSFER AGREEMENT
EXHIBIT I FORM OF OPINION OF COUNSEL TO SELLER
EXHIBIT J FORM OF SELLER'S DESIGNATED OFFICER'S CERTIFICATE
EXHIBIT K FORM OF ▇▇▇▇▇▇▇▇▇ EDUCATION SAVINGS ACCOUNT TRANSFER AGREEMENT
EXHIBIT L FORM OF OPINION OF COUNSEL TO PURCHASER
EXHIBIT M FORM OF PURCHASER'S OFFICER'S CERTIFICATE
EXHIBIT N FORM OF FINAL SETTLEMENT STATEMENT
Schedule 2.1(a)(xi) - Other Assets Schedule
Schedule 3.5 - Seller Consents
Schedule 3.6 - Deposits; Excluded Deposits
Schedule 3.7 - Personal Property
Schedule 3.8 - Contracts
Schedule 3.9 - Real Property Descriptions
Schedule 3.10 - Seller Regulatory Matters
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Schedule 3.12(b) - Acquired Loan Schedule
Schedule 3.12(c) - Acquired Loan Restrictions
Schedule 3.12(f) - Acquired Loan Notices
Schedule 3.12(g) - Acquired Loan Breaches and/or Defaults as of 6/30/04
Schedule 3.12(i)(1) - Acquired Loan Amounts 30 Days Past Due, as of 6/30/04
Schedule 3.14 - Seller Brokers and Finders
Schedule 3.17 - Environmental Matters
Schedule 3.22 - Community Reinvestment Act
Schedule 4.5 - Purchaser Consents
Schedule 4.8 - Purchaser Brokers and Finders
Schedule 5.1 - Cash on Hand
Schedule 8.4 - Employees
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PURCHASE OF ASSETS AND LIABILITY ASSUMPTION AGREEMENT
This Purchase of Assets and Liability Assumption Agreement is made
and entered into as of October 27, 2004, by and between First Citizens Bank, an
Ohio state chartered commercial bank ("Seller"), and The Marion Bank, an Ohio
state chartered commercial bank ("Purchaser"), with reference to the following
facts:
WHEREAS, Seller desires (i) to transfer to Purchaser approximately
$20 million of deposit liabilities, subject to the adjustments described herein,
and (ii) to sell to Purchaser approximately $___ million of assets, subject to
the adjustments described herein (and transfer liabilities related thereto).
WHEREAS, Purchaser desires to assume such liabilities and purchase
such assets for a Purchase Premium to be calculated pursuant to the terms of
this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller and Purchaser hereby agree
as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions.
"ACH" shall have the meaning set forth in Section 13.1(b)(ii).
"Acquired Loan Purchase Price" shall mean, with respect to any date,
with respect to each Acquired Loan, an amount equal to the Loan Balance payable
to Seller of such Acquired Loan, plus the aggregate of (i) accrued and unpaid
interest thereon and (ii) accrued and unpaid fees thereon (or Seller's prorata
portion of accrued and unpaid interest and fees in the event any participation
has been sold in the Acquired Loan) in each case as of such date.
"Acquired Loan Schedule" shall mean, with respect to any date, the
schedule substantially in the form of Schedule 3.12(b) listing each Acquired
Loan to be purchased at the Closing and listing the following information: (i)
the total Commitment or credit line with respect to each such Acquired Loan;
(ii) the total amount of Loan Balance, and any related accrued and unpaid
interest, fees and other payments outstanding, of each such Acquired Loan; (iii)
the amount of Seller's ownership interest as a percentage in each such Acquired
Loan; (iv) the amount of any unfunded Commitment or credit line of Seller of
each such Acquired Loan; (v) the amount of any over advance on each such
Acquired Loan; and (vi) the Loan Balance, and any related accrued and unpaid
interest, fees and other payments outstanding, of any participations in each
such Acquired Loan and the identity of such participants, in each case, as of
such date.
"Acquired Loans" shall mean all right, title and interest of Seller
as of the Closing Date in the loans (other than Excluded Loans) and Commitments
identified on the Acquired
Loan Schedule, and all Loan Documents related thereto, including, without
limitation, all right, title and interest to all unpaid or future commitment,
facility and other fees associated therewith.
"Acquired Loan Restrictions" shall have the meaning set forth in
Section 3.12(c).
"Action" shall mean any action, suit, arbitration, inquiry,
proceeding or investigation by or before any court, governmental or other
regulatory or administrative agency or commission.
"Agreement" shall mean this Purchase of Assets and Liability
Assumption Agreement, dated as of October 27, 2004, by and between Seller and
Purchaser.
"Allocation Statement" shall have the meaning set forth in Section
8.7.
"Assets" shall have the meaning set forth in Section 2.1(a).
"Assumed Contracts" shall have the meaning set forth in Section 5.4.
"Bank Employees" shall mean the employees of Seller employed at the
Branches.
"Branch" shall mean one of the Seller's branch offices located at
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ and ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇,
more particularly described and defined in Exhibit A hereto, and "Branches"
shall mean both such branch offices.
"Business Day" shall mean any day other than a Saturday, Sunday, or
a day on which state chartered savings banks, state chartered commercial banks
or national banking associations operating in the State of Ohio are authorized
or obligated by law or executive order to close.
"Carrying Value" shall mean the carrying value as reflected on
Seller's books and records, as determined in accordance with generally accepted
accounting principles consistently applied.
"Cash on Hand" shall mean, with respect to any date, all cash on
hand at the Branches as of the Close of Business on such date, including vault
cash, ATM cash, ▇▇▇▇▇ cash, tellers' cash and other cash items, as set forth on
Schedule 5.1.
"Cash Payment" shall have the meaning set forth in Section 12.2.
"Close of Business" shall mean, with respect to any Business Day,
5:00 p.m. local time.
"Closing" shall have the meaning set forth in Section 12.1.
"Closing Date" shall have the meaning set forth in Section 12.1.
"Closing Purchase Premium" shall mean the calculation of the
Purchase Premium with reference to Closing Schedule 3.6.
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"Closing Schedule 3.6" shall have the meaning set forth in Section
5.2.
"COBRA" shall mean the Consolidated Omnibus Budget Reconciliation
Act of 1985, as amended.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Commitment" shall mean the obligation of Seller under a loan
agreement, credit agreement or other arrangement or agreement to advance funds.
"Consultant" shall have the meaning set forth in Section 8.12(b).
"Conversion" shall have the meaning set forth in Section 6.7(a).
"Conversion Date" shall mean the Closing Date.
"Core Deposits" shall mean all Deposits domiciled at the Branches
that may be drawn on by the account holder without prior notice to Seller,
including all passbook, statement savings, checking and money market checking
accounts, but not including certificates of deposit of $100,000 or more, public
funds deposits, or any Excluded Deposits.
"Covenant Not to Compete" shall mean the covenants of Seller set
forth in Section 6.10.
"Credit Card" shall mean any card, plate, coupon book or other
credit device existing for the purpose of obtaining money, property, labor or
services on credit and issued by Seller to a consumer or business customer for
personal, family, household or business credit purposes.
"Damages" shall mean any debt, loss, liability, damage, obligation,
penalties, fines, payment (including, without limitation, those arising out of
any claim, demand, assessment, settlement, judgment or compromise relating to
any Action), costs and expenses (including, without limitation, reasonable
attorneys' fees and expenses incurred in investigating, preparing or defending
any Action).
"Deposits" shall mean, with respect to any date, the aggregate
deposit liabilities domiciled at the Branches as of the Close of Business on
such date, including the amount of any accrued but unpaid interest thereon.
"Designated Officers" shall mean Seller's President and principal
accounting officer.
"Endorsements" shall have the meaning set forth in Section 6.8.
"Environmental Exceptions" shall have the meaning set forth in
Section 8.12(d).
"Environmental Matters Notice of Termination" shall have the meaning
set forth in Section 8.12(d).
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"Environmental Requirements" shall have the meaning set forth in
Section 3.17.
"Environmental Survey" shall have the meaning set forth in Section
8.12(b).
"Excluded Assets" shall have the meaning set forth in Section 2.5.
"Excluded Deposits" shall mean deposit liabilities (i) which in
Purchaser's reasonable judgment cannot be transferred or assigned by Seller to
Purchaser, (ii) which are subject to legal restraint preventing assignment of
such deposit liabilities to Purchaser or (iii) any escrow account maintained by
Seller for the payment of taxes and insurance on property securing an Acquired
Loan.
"Excluded Loans" shall have the meaning set forth in Section 5.5.
"FDIC" shall mean the Federal Deposit Insurance Corporation.
"Federal Reserve" shall mean the Board of Governors of the Federal
Reserve System.
"Final Payment Amount" shall have the meaning set forth in Section
12.5(b).
"Final Purchase Premium" shall mean the calculation of the Purchase
Premium with reference to the final Schedule 3.6.
"Hazardous Material" shall have the meaning set forth in Section
3.17.
"Inclearing Period" shall have the meaning set forth in Section
13.1(a).
"IRS" shall mean the Internal Revenue Service.
"Knowledge" shall mean, with respect to any date, the actual
knowledge of each of the Designated Officers, as of such date, without
additional inquiry.
"Liabilities" shall have the meaning set forth in Section 2.2.
"Loan Balance" shall mean, with respect to any Acquired Loan as of a
given date, the legally outstanding principal balance of such Acquired Loan as
of the Close of Business on such date, as reflected in and based on the related
Loan Documents.
"Loan Documents" shall mean with respect to each Acquired Loan, all
credit agreements, guaranties, opinions of counsel, mortgages, security
agreements, deeds, title searches, UCC filings, trust instruments, financing
statements, side letter agreements, participation agreements, records,
correspondence, insurance binders and policies and other documents and Notes,
and all amendments to any of the foregoing, relating to such Acquired Loan which
are in Seller's legal or credit files.
"Minimum Acquired Loans" shall have the meaning set forth in Section
9.7.
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"Noncompete Area" shall mean the area within 15 miles of the
Branches.
"Note" shall mean the promissory note evidencing indebtedness under
an Acquired Loan.
"ODFI" shall mean the Ohio Department of Financial Institutions.
"Paper Items" shall have the meaning set forth in Section 13.1(a).
"Permitted Encumbrances" shall have the meaning set forth in Section
8.14(c).
"Personal Property" shall have the meaning set forth in Section 5.3.
"Preliminary Purchase Price" shall mean the Purchase Price
calculated pursuant to Section 2.3 of this Agreement in reliance upon updated
Schedules 2.1(a)(xi), 3.6, 3.7, and 3.12(b), and upon Schedule 5.1, each as
required to be delivered to Purchaser at the Closing.
"Preliminary Settlement Statement" shall mean a settlement statement
substantially in the form of Exhibit B attached hereto.
"Prepaid FDIC Insurance Premium" shall mean the aggregate amount of
all insurance premiums paid by Seller to the FDIC prior to the Closing Date with
respect to the Deposits for any period following the Closing Date based on (i)
the aggregate amount of the deposits domiciled at the Branches at the dates used
for computation of the FDIC insurance assessment, and (ii) Seller's insurance
assessment rate effective at the date of computation of such assessment, based
on a "well capitalized" rating.
"Purchase Premium" shall mean an amount equal to the lesser of (i)
5.5 percent of Core Deposits that are acquired by Purchaser or (ii) $850,000.
The Purchase Premium shall be calculated based on the daily average balance of
Core Deposits for the 20 Business Days immediately preceding the Closing Date,
and shall be subject to reduction in an amount equal to 4% of the amount by
which the Minimum Acquired Loans are less than $8,000,000.
"Purchase Price" shall have the meaning set forth in Section 2.3.
"Purchaser" shall mean The ▇▇▇▇▇▇ Bank, an Ohio state chartered
commercial bank.
"Purchaser Transaction Documents" shall mean (i) a ▇▇▇▇ of sale and
assignment, substantially in the form of Exhibit E, (ii) an assumption
agreement, substantially in the form of Exhibit G, (iii) a retirement account
transfer agreement, substantially in the form of Exhibit H, (iv) a ▇▇▇▇▇▇▇▇▇
Education Savings Account Transfer agreement, substantially in the form of
Exhibit K, and (v) an officer's certificate, substantially in the same form as
Exhibit M.
"Real Property" means all of Seller's right, title and interest in
and to all real estate and improvements thereon and fixtures thereto at the
Branches, together with all rights and appurtenances thereto and appurtenances
pertaining thereto.
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"Records" shall have the meaning set forth in Section 6.7(b).
"Safe Deposit Business" shall mean the safe deposit boxes located at
the Branches and the safe deposit business associated therewith.
"Schedule 3.6" shall have the meaning set forth in Section 3.6.
"Seller" shall mean First Citizens Bank, an Ohio state chartered
banking corporation.
"Seller Transaction Documents" shall mean (i) a limited power of
attorney, substantially in the form of Exhibit C, (ii) a certificate of
non-foreign status, substantially in the form of Exhibit D, (iii) a ▇▇▇▇ of sale
and assignment substantially in the form of Exhibit E, (iv) a general
assignment, substantially in the form of Exhibit F, (v) an assumption agreement,
substantially in the form of Exhibit G, (vi) a retirement account transfer
agreement, substantially in the form of Exhibit H, (vii) a ▇▇▇▇▇▇▇▇▇ Education
Savings Account Transfer agreement, substantially in the form of Exhibit K; and
(viii) a designated officer certificate, substantially in the form of Exhibit J.
"Sign Support System" shall mean the support structure to which
Signage is affixed or attached.
"Signage" shall mean the display, including either Seller's or
Purchaser's name and logo, used to identify either Seller's or Purchaser's place
of business.
"Student Loan" shall mean any loan designated as a student loan on
the records of Seller as of the Closing Date.
"Title Defects" shall have the meaning set forth in Section 8.14(c).
"Transferred Employee" shall mean each Bank Employee who is offered
employment by Purchaser and who accepts such employment.
"Withholding Obligations" shall have the meaning set forth in
Section 8.9.
ARTICLE II
TERMS OF PURCHASE AND ASSUMPTION
2.1 Purchase and Sale of Assets. (a) Pursuant to the terms of this
Agreement, Seller shall sell, transfer, convey and assign to Purchaser, and
Purchaser shall purchase and acquire from Seller, as of the Close of Business on
the Closing Date, all of Seller's right, title and interest in and to each of
the following, except as specifically provided herein, which are collectively
referred to herein as the "Assets":
(i) the Personal Property;
(ii) the Assumed Contracts;
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(iii) the Real Property;
(iv) the Safe Deposit Business;
(v) the Records;
(vi) the Cash on Hand;
(vii) the Acquired Loans;
(viii) the customer lists delivered to Purchaser pursuant to the
terms of the Agreement;
(ix) all Sign Support Systems located at the Branches;
(x) rights of action related to any Liabilities; and
(xi) such other assets (as set forth on Schedule 2.1(a)(xi)) as may
be mutually agreed to by the parties; provided that no
Excluded Assets shall be included in such other assets.
(b) In addition, Seller agrees to be bound, effective upon
consummation of the Closing, by the terms of the Covenant Not to Compete.
2.2 Assumption of Liabilities. Pursuant to the terms of this
Agreement, Purchaser shall assume, at the Close of Business on the Closing Date,
the Deposits (other than Excluded Deposits), and the liabilities and obligations
of Seller arising from and after the Closing with respect to the Deposits (other
than Excluded Deposits), the Assumed Contracts, the Safe Deposit Business, the
Acquired Loans, the ownership and operation of the Real Property and Personal
Property, and such other liabilities as may be mutually agreed to by the
parties, which are collectively referred to herein as the "Liabilities". All
liabilities of Seller other than the Liabilities shall remain the sole
obligation of Seller and shall be performed in full by Seller.
2.3 Purchase Price. The purchase price (the "Purchase Price") of the
Assets, which will be offset at the Closing against the amount owed to Purchaser
by Seller pursuant to the terms of Section 2.4 as consideration for the
assumption by Purchaser of the Liabilities, will be an amount equal to the sum
of the following:
(i) the aggregate Carrying Value of the Personal Property,
determined as of the Close of Business on the Closing Date up
to a maximum of $16,000;
(ii) the aggregate value of $200,000 for the Real Property,
allocated as set forth on Schedule 3.9.
(iii) the Acquired Loan Purchase Price;
(iv) the amount of the Cash on Hand;
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(v) the agreed upon purchase price of the other assets to be
acquired by Purchaser upon mutual agreement of the parties;
and
(vi) the Purchase Premium, as adjusted in accordance with the terms
of this Agreement.
2.4 Consideration for Assumption of Liabilities. As consideration
for the assumption of the Liabilities, Seller shall pay to Purchaser one hundred
percent (100%) of the amount of the Deposits (other than Excluded Deposits) as
of the Close of Business on the Closing Date.
2.5 Excluded Assets. Notwithstanding anything else contained in the
Agreement, the Assets shall not include (a) appreciated fine art; (b) Signage;
(c) any item bearing the name of First Citizens Bank (or any variation thereof)
or the logo or trademark of First Citizens Bank or any predecessor thereto; (d)
Excluded Loans; (e) Excluded Deposits; (f) any Credit Cards and related
business; (h) any insurance or securities related business; (i) any of Seller's
contracts excluded pursuant to Section 5.4; or (j) any rights, liabilities and
obligations of Seller arising from any of the foregoing items (collectively, the
"Excluded Assets")."
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents, warrants and agrees as follows:
3.1 Organization and Related Matters. Seller is an Ohio state
chartered commercial bank, duly organized, validly existing, and in good
standing under the laws of the State of Ohio, and it has the requisite corporate
power and authority to own the Assets and carry on its business at the Branches
as currently conducted and execute, deliver and perform this Agreement. Seller
is duly qualified to carry on its business as it is now being conducted in each
jurisdiction in which it does business, except any jurisdiction in which the
failure to be so qualified would not have a material adverse effect on any
Acquired Loan or materially adversely affect the operations of any of the Assets
or Liabilities taken as a whole or materially adversely affect the operations of
any of the Branches after the Closing. The deposits of Seller are, subject to
applicable monetary limits established by law, insured by the Bank Insurance
Fund of the FDIC. Seller is a not a member of the Federal Reserve, is regulated
by the FDIC, and is duly authorized to operate each of the Branches.
3.2 Authorization. The execution, delivery and performance of this
Agreement and the transactions contemplated hereby have been duly and validly
authorized and approved by all requisite corporate action on the part of Seller,
including approval by its Board of Directors. This Agreement has been duly
executed and delivered by Seller. This Agreement is a valid and binding
obligation of Seller, enforceable in accordance with its terms.
3.3 No Breaches of Statute or Contract; Required Consents. The
execution and delivery of this Agreement and the Seller Transaction Documents
and the consummation of the transactions contemplated hereby and in the Seller
Transaction Documents, do not and will not
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(i) conflict with any of the provisions of the charter or bylaws of Seller; (ii)
violate any applicable laws, orders or regulations; (iii) conflict with or
result in a breach (with notice or lapse of time or both) of any judgment,
order, decree or ruling to which Seller is a party, or by which Seller or any of
its property may be bound or affected, or any injunction of any court or
governmental authority to which Seller or any of its property is subject; (iv)
except as expressly contemplated by this Agreement, require the affirmative
consent or approval of any governmental or nongovernmental third party; (v)
result in a breach of the terms, conditions or provisions of, or constitute a
default (or an event which with notice or lapse of time, or both, would become a
default) under, or terminate or give rise to a right to terminate or bring into
operation any penalty provision of, any lease, license, contract, agreement or
other instrument to which any of the Acquired Loans, the other Assets may be
bound or affected or to which Seller is a party (including any such
documentation relating to the Acquired Loans) or by which Seller or any of its
property may be bound or affected; or (vi) result in the creation of any lien,
security interest, restriction, encumbrance or claim on the Acquired Loans, on
any other Asset.
3.4 Litigation and Related Matters. To Seller's Knowledge, there is
no action, suit, claim, proceeding or investigation pending or threatened
against Seller that is reasonably likely to impair the consummation of the
transactions contemplated hereby, or materially adversely affect the operations
of any of the Branches after the Closing Date or materially adversely affect
Seller's title to any Acquired Loan or the validity or enforceability of any
Acquired Loan or Loan Document. Seller is not aware of any facts that would
reasonably afford a basis for any such action, suit, proceeding, claim or
investigation.
3.5 Consents. Except as set forth on Schedule 3.5, other than the
approval of the ODFI and the FDIC, and subject to the expiration of any
applicable waiting period, no consent, approval or authorization of any federal
or state governmental authority or agency, or any third party, is required for
the execution, delivery and performance by Seller of this Agreement and the
consummation by it of the transactions contemplated hereby.
3.6 Deposits. Provided herewith as Schedule 3.6 is a schedule of the
aggregate Deposits domiciled at the Branches (which schedule shall set forth the
Excluded Deposits), prepared as of the Close of Business on October 22, 2004,
listing by category and by Branch the amount of such Deposits, including the
amount of accrued but unpaid interest thereon, and also indicating the aggregate
amount of Core Deposits as of such date (the "______________, 2004 Schedule
3.6"), which constitutes all of the Deposits of Seller as of such date. The
Deposits are insured by the FDIC to the fullest extent permitted by federal law
and no action is pending or has been threatened by the FDIC against Seller with
respect to the termination of such insurance. To Seller's Knowledge, the
Deposits (excluding the Excluded Deposits) (i) are in all respects genuine and
enforceable obligations of Seller and have been acquired and maintained in
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.
9
3.7 Personal Property. Provided herewith as Schedule 3.7 is a
schedule of all material items of personal property owned by Seller and located
at the Branches, which are not Excluded Assets. The Personal Property is free
and clear of any mortgages, liens, security interests or pledges. The Personal
Property is in "as is" condition. Schedule 3.7 specifies the Carrying Value of
each such item as shown on the financial records of Seller, computed as of the
date indicated thereon.
3.8 Contracts. Provided herewith as Schedule 3.8 is a schedule of
contracts relating to the maintenance and physical operation of the Branches.
3.9 Real Property.
(a) Attached hereto as Schedule 3.9 are the legal descriptions of
the Real Property.
(b) Except as specifically set forth herein, Seller has no
knowledge of any condemnation proceedings pending against the Real Property.
(c) Except as specifically set forth herein, Seller has not
entered into any agreement regarding the Real Property, and the Real Property is
not subject to any claim, demand, suit, lien, proceeding or litigation of any
kind, pending or outstanding, which would materially affect or limit Purchaser's
use and enjoyment of the Real Property or which would materially limit or
restrict Seller's right or ability to enter into this Agreement and consummate
the sale and purchase contemplated hereby.
(d) To Seller's Knowledge no fact or condition exists which would
result in the termination or material impairment of access to the Real Property
from adjoining public streets or highways or in the discontinuance of necessary
utilities services to the Real Property, and (ii) all sanitation, plumbing,
refuse disposal, and similar facilities servicing the Branches are in material
compliance with applicable governmental regulations.
(e) Seller is not in material violation of applicable building,
zoning, platting, subdivision, use, safety, building or similar laws,
ordinances, regulations and restrictions with respect to the Branches. None of
the Branches constitute a non-conforming use under applicable zoning and land
use ordinances other than by reason of so-called "grandfather" provisions
contained in such ordinances. There are no special or general assessments
pending against or affecting the Real Property and, no public improvements have
been recently made which would cause special or general assessments to be
assessed against the Real Property. Except for any encroachment which does not
affect the use or value of the premises to the Knowledge of Seller: (i) there is
no encroachment upon the Real Property from any buildings or improvements, if
any, located on the adjacent property; and (ii) there is no encroachment by the
Real Property upon any adjacent property or upon any easements with respect to
the adjacent property. There are no leases or other agreements by which any
person possesses or has a right to possess all or any portion of the Real
Property. There is no violation of any applicable building restriction or
restrictive covenant with respect to the Real Property. The Real Property is
adequately serviced by all utilities necessary for effective operation as
presently used for a financial institution office.
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3.10 Compliance with Laws and Regulations. Except as set forth in
Schedule 3.10, Seller has conducted and is conducting its business at the
Branches in all material respects in compliance with all federal and state laws
and regulations, including, without limitation, all applicable regulations,
orders and opinions of the ODFI, the Federal Reserve, and the FDIC.
3.11 Governmental Notices. Seller has not received any notice from
any federal, state, or other governmental agency indicating that such agency
would oppose or not grant or issue its consent or approval, if required, with
respect to the transactions contemplated hereby. There are no facts known to
Seller that could reasonably be expected to have an adverse effect on the
ability of Seller to obtain all requisite regulatory consents or to perform its
obligations under this Agreement.
3.12 The Acquired Loans. (a) Seller has made or will make available
to Purchaser prior to Closing a complete, true and correct copy of all Loan
Documents relating to each Acquired Loan. There are no material agreements,
waivers, opinions of counsel, security or collateral documents, amendments,
releases, discharges, or modifications or releases of collateral,
representations or promises, written or oral, made by Seller or any of its
affiliates, agents or employees with respect to the Acquired Loans which have
not been disclosed to Purchaser by Seller and which would be binding upon
Purchaser.
(b) The amounts listed as Loan Balances on the Acquired Loan
Schedule on Schedule 3.12(b) represent debt for actual monies borrowed.
(c) Subject to any applicable bankruptcy, insolvency and other
laws affecting the enforcement of creditors' rights generally and general
principles of equity, the Loan Documents are in full force and effect, are valid
and binding and enforceable against the parties thereto in accordance with their
terms. The Loan Balance of each Acquired Loan and the accrued and unpaid
interest and fees thereon represents the genuine, legal, valid and binding
payment obligation of the borrower of such Acquired Loan and no Acquired Loan is
subject to any right of rescission, setoff, recoupment, abatement, diminution,
counterclaim or valid defense by any borrower or guarantor thereunder. Except as
set forth on Schedule 3.12(c), Seller is the sole lender under and owns the
Acquired Loans free and clear of any encumbrance, lien, pledge, charge, claim,
right of third parties or secondary interest (collectively, "Acquired Loan
Restrictions"). Each of the Acquired Loans was made in compliance with
applicable banking laws, rules and regulations.
(d) Seller has performed all obligations required to have been
performed by it under the Loan Documents except where the failure to have
performed such obligations would not materially adversely affect any Acquired
Loan. Seller has not received written notice and does not have any Knowledge
that any borrower is asserting any material claim against Seller or any defense
to payment of such borrower's obligations under any Loan Documents. There are no
claims, proceedings, action, arbitrations, or investigations pending, or, to the
Knowledge of Seller, threatened, which if adversely determined, would have a
material adverse effect on any individual Acquired Loan or (ii) on the Acquired
Loans taken as a whole.
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(e) Except as disclosed or otherwise set forth in the Loan
Documents, none of the Acquired Loans has been satisfied, cancelled,
subordinated or rescinded and no collateral securing or supporting the Acquired
Loans has been released from any existing lien nor has any instrument been
executed that would effect any such release, cancellation, subordination or
rescission.
(f) Other than notices received or given which have been disclosed
by Seller to Purchaser, and which have been approved in writing by Purchaser,
with respect to the Acquired Loans as set forth on Schedule 3.12(f), Seller has
not received any notice of intention to pre-pay any Acquired Loan and has not
given any notice of intention not to renew any Acquired Loan which is a
customarily renewable credit facility by the borrower.
(g) Except as set forth on Schedule 3.12(g) Seller has not
received written notice and does not have Knowledge of any material default or
breach of any material representation, agreement or covenant by any borrower
under any of the Loan Documents which remains uncured for any Acquired Loan.
Seller shall update Schedule 3.12(g) to the Closing Date and shall deliver such
to Purchaser at Closing.
(h) With respect to each Acquired Loan, Seller has (unless
otherwise provided in the relevant Loan Documents) a valid first priority
perfected security interest (subject, however to any prior liens arising by
operation of law) in all collateral described in the Loan Documents as security
for such Acquired Loans. With respect to each Acquired Loan secured by personal
property, Seller will deliver to Purchaser at the Closing copies of Requests for
Information or copies (UCC Form 11) (or a similar search report), dated at a
date reasonably near the Closing Date, listing all effective financing
statements which name each borrower and guarantor of such Acquired Loan (under
its present name and any previous name) as debtor, together with copies of such
financing statements.
(i) (1) Except as set forth in Schedule 3.12(i)(1), there are no
amounts more than 30 days past due in respect of any Acquired Loan as of the
date of this Agreement. Seller shall update Schedule 3.12(i)(1) to the Closing
Date and shall deliver such to Purchaser at Closing.
(2) No waiver or indulgence has been granted by Seller with
respect to any Acquired Loan which is presently in effect or will be in effect
in the future.
(j) Other than as expressly provided for herein, Seller makes no
representations or warranties with respect to the collectibility or credit
quality of the Acquired Loans, the value or condition of any collateral securing
the Acquired Loans, the creditworthiness or financial condition of the borrower
under the Acquired Loans.
3.13 FIRPTA. Seller is not a "foreign person" within the meaning of
Section 1445 of the Code.
3.14 No Broker's or Finder's Fees. Except as set forth on Schedule
3.14, no agent, broker, investment banker, person or firm acting on behalf of or
under authority of Seller
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is or will be entitled to any broker's or finder's fee or any other commission
or similar fee directly or indirectly in connection with any of the transactions
contemplated by this Agreement.
3.15 Statements True and Correct. All documents that Seller is
responsible for filing with any regulatory authority in connection with the
transactions contemplated hereby will comply as to form in all material respects
with the provisions of applicable law, including applicable provisions of the
securities laws.
3.16 Employees. No Bank Employee is a party to any collective
bargaining, employment, severance, termination, or change of control agreement,
oral or written, or represented under any collective bargaining agreement
relating to employment with Seller. Seller is unaware of any efforts during the
past three years to unionize or organize the Bank Employees. Seller has provided
to Purchaser a true and correct list of any and all bonus or incentive or other
compensation arrangements or commitments, other than benefits plans applicable
to all Seller employees, for the Bank Employees individually or as a group.
3.17 Environmental Matters. Except as set forth in Schedule 3.17, to
the Knowledge of Seller:
(a) The Branches are, in all material respects, in compliance with
all Environmental Requirements.
(b) During Seller's occupancy of the Branches, no part of the
Branches have been used for the manufacture, handling, storage or disposal of
Hazardous Material, except in compliance with Environmental Requirements.
(c) There is no action, suit, investigation, inquiry, or other
proceeding, ruling, order or citation involving Seller, pending, threatened or
previously asserted as a result of any actual or alleged failure to comply with
any of the Environmental Requirements with respect to the Branches.
"Hazardous Material" means any substance the presence of which requires
investigation or remediation under any Environmental Requirements and includes,
without limitation, petroleum products, PCB's, asbestos, mold, "hazardous
wastes" and "hazardous substances", as defined in Federal Resource Conservation
and Recovery Act, as amended, and CERCLA, respectively. "Environmental
Requirements" means all applicable statutes and regulations of all governmental
agencies of the United States, states and political subdivisions thereof and all
applicable judicial, administrative, and regulatory decrees, judgments, and
orders relating to the protection of human health or the environment.
3.18 Records. The Records are correct, accurate and complete in all
material respects, have been maintained in a consistent and a customary manner,
and are in material compliance with all applicable federal and state laws and
regulations and customary banking practices. The deposit- and lending-related
forms, notices, statements and related documentation, as well as Seller's
policies, procedures and practices with respect thereto, used at the Branches
comply in all material respects with applicable federal and state laws and
regulations and customary banking practices.
13
3.19 Tax Matters. Seller has complied in all material respects, with
the requirements of the IRS regarding taxpayer identification number
certification, interest information reporting and backup withholding of interest
payable in connection with Deposits. Seller has filed all material federal,
state, county, local and foreign tax returns, including information returns,
required to be filed by it in connection with the operation of the Branches, and
paid all taxes shown as due from it on those returns, including those with
respect to withholding, social security, unemployment, workers compensation,
franchise, ad valorem, premium, excise and sales taxes, and no taxes shown on
such returns or assessments received by it are delinquent. In all material
respects, Seller has paid or will pay all taxes which it is required to withhold
from amounts owing to employees, creditors, holders of Deposits, or other third
parties. For all calendar years ending prior to or on the Closing Date, in all
material respects, Seller has duly and timely sent to each holder of Deposits a
Form 1099 (or a substitute form permitted by law) relating to interest, earnings
or dividends paid on such accounts for those periods.
3.20 Other Assets. (a) Seller has good and marketable title to each
of the other assets that the parties mutually agree Seller will sell to
Purchaser and Purchaser will purchase from Seller.
(b) None of such other assets will be, as of the Closing Date,
subject to any restrictions with respect to transfer or assignment thereof and
no third party consents, or notification to any third parties, that will not
have been obtained by the Closing Date, are required in order to effect any such
transfer or assignment.
3.21 Exhibits and Schedules. All information contained in the
Exhibits and Schedules hereto is true and correct in all material respects and
all information contained in any amendments or updates to such Exhibits and
Schedules will be true and correct as of the date of delivery thereof.
3.22 Community Reinvestment Act; Regulatory Matters. Except as set
forth in Schedule 3.22, Seller received a rating of at least "satisfactory" in
its most recent examination with respect to the Community Reinvestment Act.
Seller has no Knowledge of any supervisory concerns regarding its compliance
with the Community Reinvestment Act or, to the extent applicable, and similar
law of the State of Ohio. To Seller's Knowledge, there are no threatened or
pending actions, proceedings or allegations by any person or regulatory agency
which may cause the ODFI, FDIC or the Federal Reserve to deny any application
required to be filed pursuant to Section 8.1.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents, warrants and agrees as follows:
4.1 Organization and Related Matters. Purchaser is an Ohio state
chartered commercial bank, duly organized, validly existing, and in good
standing under the laws of the State of Ohio and it has the requisite corporate
power and authority to own its assets and carry on
14
its business as currently conducted and execute, deliver and perform this
Agreement. Upon receipt of the approval of the FDIC and ODFI and the expiration
of any related waiting period, Purchaser will be duly authorized to operate each
of the Branches. The deposits of Purchaser are, subject to applicable monetary
limits established by law, insured by the FDIC.
4.2 Authorization. The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby by
Purchaser have been duly and validly authorized and approved by all requisite
corporate action. This Agreement has been approved by Purchaser's Board of
Directors, and such approval is reflected in the minutes of the board of
directors. This Agreement has been duly executed and delivered by Purchaser.
This Agreement is a valid and binding obligation of Purchaser, enforceable in
accordance with its terms.
4.3 No Breaches of Statute or Contract; Required Consents. The
execution and delivery of this Agreement and Purchaser Transaction Documents and
the consummation of the transactions contemplated hereby and in the Purchaser
Transaction Documents, do not and will not (i) conflict with any of the
provisions of the charter or bylaws of Purchaser; (ii) violate any applicable
laws, orders or regulations; (iii) conflict with or result in a breach (with
notice or lapse of time or both) of any judgment, order, decree or ruling to
which Purchaser is a party, or by which it or any of its property is bound or
affected, or any injunction of any court or governmental authority to which it
or any of its property is subject, or any material agreement to which it is a
party or by which it is bound or affected; or (iv) require the affirmative
consent or approval of any governmental or nongovernmental third party (other
than as expressly contemplated by this Agreement).
4.4 Litigation and Related Matters. There is no action, suit, claim,
proceeding or investigation pending or, to the best of Purchaser's knowledge,
threatened against Purchaser that is reasonably likely to impair the
consummation of the transactions contemplated hereby. Purchaser is not aware of
any facts that would reasonably afford a basis for any such action, suit,
proceeding, claim or investigation.
4.5 Consents. Except as set forth on Schedule 4.5, other than the
approval of the FDIC and ODFI, and subject to the expiration of any applicable
waiting period, no consent, approval or authorization of any federal or state
governmental authority or agency, or any third party, is required for the
execution, delivery and performance by Purchaser of this Agreement and the
consummation by it of the transactions contemplated hereby or to assume and
perform the obligations and duties of and function as a lender with respect to
the Acquired Loans.
4.6 Compliance with Laws and Regulations. Purchaser has conducted
and is conducting its business in all material respects in compliance with all
federal and state laws and regulations, including, without limitation, all
regulations, orders, and opinions of the FDIC and ODFI. Purchaser is not subject
to any order or ruling directed to it by, or memorandum of understanding with,
any governmental agency, including the FDIC and ODFI.
4.7 Governmental Notices. Purchaser has not received any notice from
any federal, state, or other governmental agency indicating that such agency
would oppose or not grant or issue its consent or approval, if required, with
respect to the transactions contemplated
15
hereby. There are no facts known to Purchaser that could reasonably be expected
to have an adverse effect on the ability of Purchaser to obtain all requisite
regulatory consents or to perform its obligations under this Agreement.
4.8 No Broker's or Finder's Fees. Except as set forth on Schedule
4.8, no agent, broker, investment banker, person or firm acting on behalf of or
under authority of Purchaser is or will be entitled to any broker's or finder's
fee or any other commission or similar fee, directly or indirectly, in
connection with any of the transactions contemplated by this Agreement.
4.9 Community Reinvestment Act; Regulatory Matters. Purchaser
received a rating of "satisfactory" in its most recent examination with respect
to the Community Reinvestment Act. Purchaser has not been advised of any
supervisory concerns regarding its compliance with the Community Reinvestment
Act or any similar law of the State of Ohio. To Purchaser's knowledge, there are
no threatened or pending actions, proceedings or allegations by any person or
regulatory agency which may cause the FDIC and ODFI to deny any application
required to be filed pursuant to Section 8.1.
ARTICLE V
UPDATING OF INFORMATION
5.1 Cash on Hand. At the Closing, Seller shall deliver to Purchaser
Schedule 5.1 indicating the amount and location of the Cash on Hand as of the
Close of Business on the Business Day preceding the Closing Date.
5.2 Deposits. At Closing Seller will provide Purchaser with an
updated Schedule 3.6 (the "Closing Schedule 3.6") reflecting as of the Close of
Business on a date no more than five (5) Business Days prior to the Closing Date
the aggregate Deposits (other than Excluded Deposits) domiciled at the Branches,
including accrued and unpaid interest thereon, and indicating the aggregate
amount of Core Deposits as of such date.
5.3 Personal Property. Purchaser shall have the right by prior
written notice to Seller to exclude from Schedule 3.7 items that are subject to
any lien, claim or encumbrance as of the Closing,. An updated Schedule 3.7
listing all of the items of personal property remaining after any such
exclusions (collectively referred to herein as the "Personal Property"), along
with the Carrying Value of all of such items, as of the end of the month
preceding the Closing Date, shall be delivered by Seller to Purchaser at the
Closing.
5.4 Contracts. Seller shall use its reasonable best efforts to
obtain the consent of any third party required to assign any of the contracts
listed on Schedule 3.8 to Purchaser. Purchaser may by written notice to Seller
prior to the Closing exclude from Schedule 3.8 any contract (i) 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, consent has not
been obtained prior to the Closing, or (ii) that contains materially burdensome
terms that are not ordinary or customary. An updated Schedule 3.8 listing all of
the contracts remaining after any such exclusions (collectively referred to
herein as the "Assumed Contracts") shall be delivered by Seller to Purchaser at
the Closing.
16
5.5 Acquired Loans. Purchaser may, by written notice to Seller at
any time prior to the Closing Date, exclude any loan that would otherwise be an
Acquired Loan (such loans, together with any loans excluded pursuant to Section
6.3 being collectively referred to herein as "Excluded Loans"). Updated Schedule
3.12(b) listing all Acquired Loans remaining after any such exclusions shall be
delivered by Purchaser to Seller at Closing. Seller shall provide to Purchaser
on the Closing Date a listing all Acquired Loans as to which any of the
statements set forth in Section 3.12 hereof are not true and correct in all
material respects at and as of the Closing Date.
5.6 Other Assets. An updated Schedule 2.1(a)(xi) reflecting the
other assets to be purchased from Seller by Purchaser, and their mutually agreed
upon purchase price, shall be provided by Seller at Closing, subject to final
agreement by Purchaser.
ARTICLE VI
COVENANTS OF SELLER
During the period from the date hereof to the Closing Date, Seller
hereby covenants and agrees as follows:
6.1 Operations in Ordinary Course. (a) Without the prior consent of
Purchaser, Seller shall:
(i) not engage in any transaction related to any of the Branches,
except in the ordinary course of business or as contemplated by this Agreement;
(ii) maintain the Branches in a condition substantially the same as on the date
of this Agreement, reasonable wear and use excepted; (iii) duly maintain
compliance in all material respects with all laws, regulatory requirements and
agreements to which it is subject or by which it is bound with respect to the
Assets, the Liabilities and the Branches; (iv) not close or sell any of the
Branches or open or acquire any permanent offices or branches within the
Noncompete Area; (v) reasonably cooperate with Purchaser to maintain and the
franchise value of the Branches prior to Closing; (vi) not sell or transfer any
Deposits (other than Excluded Deposits); (vii) not change the compensation
policies or practices applicable to the Bank Employees; (viii) not acquire
personal property for, or make capital expenditures at, the Branches in excess
of $10,000 in the aggregate, or $2,500 individually; and
(b) Seller shall maintain its books of accounts and records with
respect to the Assets and Liabilities in the usual, regular and ordinary manner.
In addition, Seller shall not conduct its business and operations in
such a manner as to impair its ability to consummate the transactions
contemplated hereunder, nor will it engage in any transaction, take any action,
or omit to take any action, which could reasonably be expected to impair its
ability to consummate the transactions contemplated hereunder.
6.2 Deposits. Seller shall not materially alter its current method
of establishing interest rates for deposit products, or its current advertising,
or deposit account practices at the Branches. Subject to the foregoing, Seller
agrees to take such actions as it shall reasonably deem
17
necessary to preserve the mix, type and aggregate amount of the Deposits at
approximately current levels. Notwithstanding the foregoing, Seller and
Purchaser understand and agree that as of thirty (30) days prior to the Closing
Date Seller shall be under no obligation to open any new retirement accounts or
▇▇▇▇▇▇▇▇▇ Education Savings Accounts at the Branches.
6.3 Acquired Loans. Without the prior consent of Purchaser, Seller
shall:
(a) not, except for any Acquired Loan with a Loan Balance as of the
date of this Agreement of less than $25,000 for which the following actions may
be taken in the ordinary course without Purchaser's consent, enter into, create
or assume any security agreement, lien, encumbrance, mortgage, deed of trust,
pledge, conditional sale or other title retention agreement, easement, covenant,
restriction or other burden upon any Acquired Loan or renewals thereof;
(b) not sell, assign, transfer or otherwise dispose of all or any
portion of any Acquired Loan or any interest therein;
(c) not, except for any Acquired Loan with a Loan Balance before and
after any such action of less than $25,000 for which the following actions may
be taken in the ordinary course without Purchaser's consent: modify or increase
any Commitments or credit lines with respect to Acquired Loans; modify or change
any terms of any Loan Documents; enter into, or make or promise to make any over
advance with respect to any Acquired Loan; repurchase any participations in any
Acquired Loans except for repurchases which Seller is contractually obligated
(by an agreement entered into prior to the date hereof and disclosed to
Purchaser) to consummate. If Seller takes any prohibited actions referred to in
this subsection 6.3(c) without the written consent of Purchaser, then
Purchaser's sole remedy with respect to such loan shall be that such loan, at
Purchaser's option, may be deemed an Excluded Loan and may no longer be deemed
an Acquired Loan;
(d) not fail to comply in all material respects with any Loan
Documents;
(e) use reasonable best efforts to preserve the good will of the
borrowers pursuant to the Acquired Loans;
(f) not compromise or settle claims of any kind with respect to any
Acquired Loan;
(g) not release any borrower under or guarantor of or any portion of
the collateral supporting any Acquired Loan (except in connection with a
prepayment in full of such Acquired Loan);
(h) not increase the principal amount outstanding under any of the
Notes, except that Seller may make additional advances under existing lines of
credit, provided such advances are consistent with Seller's applicable credit
standards and procedures; and
(i) continue to service the Acquired Loans in accordance with its
prior practices and as it would in the ordinary course of its business subject
to the provisions of this Agreement.
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Notwithstanding anything herein to the contrary, Seller shall be
permitted to accept prepayments of any of the Acquired Loans between the date
hereof and the Closing Date. If an Acquired Loan is prepaid in full prior to the
Closing Date, such Acquired Loan shall be deemed an Excluded Loan.
6.4 Conditions to Closing. Seller shall use its reasonable best
efforts to (i) satisfy, as expeditiously as reasonably possible, all of the
conditions to the obligations of Purchaser hereunder within Seller's control,
and (ii) obtain all consents of third parties required to assign the contracts
set forth on Schedule 3.8.
6.5 Contracts. Subject to the provisions of Section 6.1, Seller
shall not enter into any material contracts related to the Branches without the
written consent of Purchaser, which consent shall not be unreasonably withheld.
For purposes of this Section 6.5, a material contract shall be any contract
(other than an Acquired Loan or Deposit) requiring payments in excess of $5,000.
6.6 Consents. Seller shall use its reasonable best efforts to obtain
all consents, approvals and agreements which are required in connection with the
consummation of the transactions provided for herein.
6.7 Conversion; Records. (a) From the date hereof through conversion
from Seller's system to Purchaser's system of Seller's files and records
relating to the Assets purchased and Liabilities assumed, including those
relating to deposit taking activities and Safe Deposit Business provided at the
Branches (the "Conversion"), Seller shall cooperate and work with Purchaser to
complete the tasks required to facilitate the Conversion. Such tasks include,
but are not limited to, providing Purchaser with updated computer files and
reports, and other items as are necessary to complete the Conversion. Within 60
calendar days from the date hereof, Seller shall provide to Purchaser the
computer files and reports, and related documentation of the Assets and
Liabilities in a format acceptable to Purchaser. Seller agrees to reasonably
cooperate in resolving any conversion-related issue arising from the Conversion
until the Conversion is completed.
(b) Upon consummation of the Closing, Seller shall deliver to
Purchaser (i) its existing files and records located at the Branches relating to
the Assets purchased or otherwise transferred and Liabilities assumed by
Purchaser pursuant to this Agreement and those relating to the deposit taking
activities and Safe Deposit Business provided at the Branches (collectively
referred to herein as the "Records"), which constitute all of the books and
records in Seller's or its agent's possession necessary for the conduct of the
business of the Branches as currently conducted, to the extent such business
relates to the Assets and Liabilities; (ii) all records relating to the
retirement accounts and plans included in the Acquired Deposits; (iii) all tapes
and supporting documentation related to the Deposits (other than Excluded
Deposits), Acquired Loans and Safe Deposit Business; and (iv) all records, tapes
and files related to the Assets purchased and Liabilities assumed by Purchaser
hereunder. Without limiting the foregoing, following the Closing Date, Seller
agrees to promptly provide such copies of such files and records relating to the
Assets and Liabilities which remain in its possession as Purchaser shall
reasonably request, provided that, from and after 180 days following the Closing
Date, Purchaser shall reimburse Seller for its actual out-of-pocket expenses
incurred in connection therewith.
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Seller agrees not to transfer, except as may be contemplated pursuant to the
terms of this Agreement or to a successor in interest or to a subsequent
purchaser of any of the Branches, Assets or Liabilities, or to destroy any such
files or records for a period equal to the lesser of six (6) years or the
required retention period under applicable law, including, without limitation,
the USA PATRIOT Act following the Closing Date without first providing Purchaser
with an opportunity to take possession of any such files or records.
6.8 Insurance Endorsements. After the Closing, Seller agrees to
reasonably cooperate with Purchaser to obtain endorsements or similar
acknowledgments (the "Endorsements") naming Purchaser or acknowledging Purchaser
as the loss payee or additional insured under each insurance policy with respect
to which Seller is named loss payee or additional insured and which are related
to or required in connection with any Acquired Loan.
6.9 Loan Documents. Except in the ordinary course of business,
Seller shall not allow any document to be placed with, or permanently removed
from, the Loan Documents after Purchaser has completed its review of such Loan
Documents without the knowledge of Purchaser.
6.10 Covenant Not to Compete. (a) For a period of three (3) years
commencing as of the Closing Date, Seller shall not open any temporary or
permanent offices or branches for deposit gathering or loan production
activities within the Noncompete Area. Nothing herein shall prevent Seller from
(i) maintaining its existing single loan production office at ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.,
▇▇▇▇▇▇, ▇▇▇▇ (the "LPO Office"), (ii) accepting deposits from any customer that
has a loan from Seller either at the LPO Office or at any facility of customeror
(iii) establishing a branch office of Seller's finance company subsidiary known
as "Mr. Money". No other deposits shall be accepted at either the existing LPO
Office or any Mr. Money office located within the Noncompete Area during the
period provided for herein. Nothing herein shall prevent Seller from operating
any office or branch acquired in connection with the acquisition by Seller of
another financial institution.
(b) During the three (3) year period following the Closing Date,
Seller shall not (i) use any proprietary customer list of the Deposits or
Acquired Loans or other similar record of the holders of accounts that
constitute Deposits or borrowers of Acquired Loans on the Closing Date, to
solicit deposits or to solicit loans of the type included in the Acquired Loans,
(ii) specifically target and solicit Deposit and Acquired Loan customers for
deposits or loans of the type included in the Acquired Loans, provided that this
restriction shall not prohibit newspaper, radio, television, internet, or other
mass media or mailing advertisements, provided that such advertisements are
directed at the general public or Seller's then existing customers, and are not
specifically targeted or directed at the Deposit or Acquired Loan customers or
(iii) solicit for hire any Bank Employee of Seller who becomes an employee of
Purchaser as of the Closing Date.
(c) The restrictions set forth in this Section 6.10 shall apply to
Seller provided that none of such restrictions shall apply to any bona fide
third party that by any means acquires Seller, or all, or substantially all, of
its business, assets, and liabilities, or any of its branches, as long as such
entity does not solicit deposits under the name First Citizens Bank, (or any
similar
20
name to that of Seller) within the Noncompete Area during the three (3) year
period following the Closing Date.
6.11 Fees and Expenses. Except as otherwise provided herein, all
costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party incurring such
expense.
6.12 Investigations. Seller shall permit Purchaser and its agents to
inspect the premises and facilities at the Branches and the books and records of
Seller regarding the Assets purchased and Liabilities assumed hereunder at
reasonable times and upon reasonable notice; provided, however, that any such
inspection shall be conducted in such manner at such times and upon such notice
as is reasonably acceptable to Seller. In addition, Seller shall furnish
Purchaser and its agents with copies of such documents and records with respect
to the Branches and the Assets purchased and Liabilities assumed hereunder as
Purchaser shall from time to time reasonably request, including, without
limitation, all documents and records reasonably necessary or advisable in order
for Purchaser to allocate the Purchase Price pursuant to Section 8.7 hereof.
6.13 Acquired Loans. Following the Closing Date, Seller will forward
any payments with respect to any Acquired Loans received by Seller to Purchaser
by wire transfer within one (1) Business Day of receipt of such payment by
Seller.
6.14 Proposed Action. Seller shall not authorize, propose or commit
to any of the actions prohibited by this Article VI or enter into or modify any
contract, agreement, commitment or arrangement to do any of the actions
prohibited by this Article VI.
6.15 Limited Right of Purchaser to Put Back Acquired Loans. For a
period of ninety (90) days following the Closing Date in the event that
Purchaser discovers, with respect to any Acquired Loan, that the Loan Documents
are deficient, and such deficiency cannot be cured to the reasonable
satisfaction of Purchaser, then without regard to the materiality of such
deficiency, and notwithstanding any other limitation on Purchaser's rights
contained in this Agreement, Purchaser may, in its sole discretion, elect to put
such Acquired Loan back to Seller, and Seller shall purchase such loan from
Purchaser at the amount of such loan's then Loan Balance.
ARTICLE VII
COVENANTS OF PURCHASER
7.1 Performance of Liabilities. From and after the Closing Date,
Purchaser shall perform and be bound by the terms and provisions of the deposit
agreements governing the terms of all accounts included within the Deposits
(other than Excluded Deposits) until such terms and provisions are properly
modified by Purchaser. Subject to the provisions of Section 13.1 hereof, from
and after the Closing Date, Purchaser shall pay, to the extent of sufficient
available funds on deposit, all properly drawn checks, drafts, and
non-negotiable withdrawal orders 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 (other than Excluded
21
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 the
deposit agreements governing the terms of such accounts in effect as of the
Closing Date, until such provisions are properly modified or canceled by
Purchaser.
7.2 Safe Deposit Business. From and after the Closing Date,
Purchaser shall perform and discharge all of Seller's liabilities with respect
to the Safe Deposit Business, including maintaining all necessary facilities and
providing all necessary services for the use of safe deposit boxes by the
renters thereof, in accordance with the terms and provisions of the applicable
leases or other agreements relating to such boxes, until such terms and
provisions are properly modified by Purchaser.
7.3 Fiduciary Relationships. From and after the Closing Date,
Purchaser shall perform all of the fiduciary relationships of Seller arising out
of any retirement accounts and ▇▇▇▇▇▇▇▇▇ Education Savings Accounts included
within the Deposits (other than Excluded Deposits) and, with respect to such
accounts, Purchaser shall assume, subject to the receipt of any required
consents, 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.
7.4 Acquired Loans, Acquired Deposits and Other Contracts. From and
after the Closing Date, with respect to each Acquired Loan, Acquired Deposit,
and other assumed contracts, Purchaser shall honor and provide credit in
accordance with applicable law and the terms and provisions of the related Loan
Documents and honor and satisfy the terms of the deposit agreements and
contracts assumed, until properly modified by Purchaser.
7.5 Conduct of Business. Except as contemplated by Section 8.6,
between the date hereof and the Closing Date, Purchaser and its affiliates shall
not undertake any marketing or advertising efforts specifically targeted to
Seller's customers or take any other action specifically intended to reduce the
amount of the Deposits as of the Closing Date. Notwithstanding the foregoing,
Purchaser shall be permitted to continue to conduct its current business in the
ordinary course and shall be permitted to (i) engage in general media
advertising not specifically targeted to customers of the Branches and not using
Seller's name, and (ii) originate and service loans and otherwise engage in the
lending business, including any solicitation of such business. Purchaser shall
not, between the date of this Agreement and the Closing Date, conduct its
business and operations in such a manner as to impair its ability to consummate
the transactions contemplated hereunder, nor will it 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.
7.6 Conditions to Closing. Purchaser shall use its reasonable best
efforts to (i) satisfy, as expeditiously as reasonably possible, all of the
conditions to the obligations of Seller hereunder within Purchaser's control,
and (ii) obtain all consents of third parties required to assign the contracts
set forth on Schedule 3.8, but in no event shall Purchaser have any obligation
to pay money to anyone with respect to a contract or to modify a contract in
order to obtain any required consent to the assignment thereof to Purchaser.
22
7.7 Records. Purchaser shall maintain the Records in accordance with
applicable law and regulation and Purchaser's record retention policy and, in
any case, for not less than six (6) years following the Closing Date. Following
the Closing Date, Purchaser shall promptly provide such copies of the Records
transferred to Purchaser by Seller as Seller shall reasonably request, provided
that, from and after 360 days following the Closing Date, Seller shall reimburse
Purchaser for its actual out-of-pocket costs incurred in connection therewith.
ARTICLE VIII
ADDITIONAL AGREEMENTS
8.1 Regulatory Approvals. (a) Seller and Purchaser shall cooperate
in preparing, submitting, filing, updating and publishing (as applicable), as
promptly as practicable, all applications, notification and report forms, and
notices as may be required by applicable law, with respect to the transactions
contemplated by this Agreement, including, without limitation, those of the
FDIC, the ODFI, the Federal Reserve, the Federal Trade Commission, the
Department of Justice and any other applicable state or federal regulatory
agency, and Seller and Purchaser will use their reasonable best efforts to
obtain such approvals and accomplish such actions as expeditiously as possible.
(b) Each party represents, warrants and agrees that any information
furnished by it for inclusion in any regulatory application will be true and
complete in all material respects as of the date so furnished.
8.2 Insurance. As of the Closing, Seller will discontinue its
insurance coverage maintained in connection with the Branches and the activities
conducted thereon. Purchaser shall be responsible for all insurance protection
for the Branches' premises and the activities conducted thereon immediately
following the Closing. Seller shall bear the risk of loss until the Closing, and
Purchaser shall bear the risk of loss thereafter.
8.3 Further Assurances. Seller and Purchaser each shall do all
things reasonably necessary or desirable and within its control to effect the
consummation of the transactions contemplated hereby as soon as possible, and at
any time and from time to time after the Closing Date shall, upon the request of
the other, do or cause to be done such further acts and execute such documents
as may be necessary or desirable to vest in Purchaser the Assets, and to
evidence Purchaser's assumption of the Liabilities, including, among others,
obtaining all necessary consents and substitutions necessary to substitute
Purchaser as trustee for all retirement deposit accounts included in the
Deposits (other than Excluded Deposits). At or after the Closing, Seller shall
promptly deliver to Purchaser the original of any mail or other communication
received by it relating to the Assets purchased and Liabilities assumed by
Purchaser and any monies, checks or other instruments of payment related
thereto.
8.4 Employees.
(a) Purchaser will offer employment to those Bank Employees actively
employed by Seller as of the Closing and listed on Schedule 8.4 hereof. All
salary, wages and benefits for each Bank Employee hired by Purchaser (the
"Transferred Employees") shall be at
23
Purchaser's sole discretion; however, the salary, wages and benefits provided to
the Transferred Employees by Purchaser will be consistent with the salary, wages
and benefits provided to similarly classified employees of Purchaser. Purchaser
shall not be responsible or liable for any benefits accrued under the pension or
welfare plans of Seller. Seller will be responsible for all accrued but not paid
vacation pay for such employees through the Closing Date.
(b) After the execution of this Agreement, Seller will continue its
normal employment practices in staffing the Branches; however, Seller makes no
representations or warranties about whether any of the Transferred Employees
will remain employed at the Branches after the Closing. Seller will use its
ordinary efforts to: (i) maintain the Bank Employees as Bank Employees at the
Branches until the Closing, (ii) refrain from dissuading any Bank Employee from
accepting an offer of employment with Purchaser or (iii) refrain from recruiting
Bank Employees for alternate positions with Seller. Any Bank Employee whose
employment shall be terminated for any reason prior to the Closing shall be
dealt with by Seller in its sole and absolute discretion.
(c) Purchaser shall not be responsible for the payment of any
remuneration due to employees of Seller for unused vacation pay earned prior to
the Closing Date.
(d) Except as instructed by any Transferred Employee consistent with
Seller's customary policies and practices, Seller will not make any transfer of
pension or other employee benefit plan assets to Purchaser.
(e) Seller and Purchaser each with respect to its respective plans,
programs and policies described in this Section 8.4 shall give any notices
required of it by applicable law and take whatever other actions as may be
necessary to carry out the arrangements described in this Section 8.4.
(f) If any of the arrangements described in this Section 8.4 are
determined by the Internal Revenue Service or any other governmental authority
to be prohibited by law, Seller and Purchaser shall modify such arrangements to
as closely as possible reflect their expressed intent and retain the allocation
of economic benefits and burdens to the parties contemplated herein in a manner
that is not prohibited by law.
(g) Purchaser shall not have any responsibility, liability or
obligation to any current or former employees of Seller, their beneficiaries or
to any other person, with respect to any employee plans of Seller (including the
establishment, operation or termination thereof and the notification and
provision of COBRA coverage extension).
(h) Nothing contained in this Agreement shall be construed as or
intended as creating a contractual right of employment for any employee.
8.5 Confidentiality. Except to the extent disclosure is required by
law, or in response to any governmental or regulatory authority, or in
connection with any litigation relating to an alleged breach of this Agreement,
each party shall maintain the confidentiality of all information obtained from
the other party hereto other than information that is otherwise publicly
available and shall use such information only for purposes reasonably related to
this
24
Agreement and the transactions contemplated hereby. If this Agreement is
terminated, each of the parties hereto agrees to return promptly upon request
all documents received from the other party that contain or embody information
subject to this paragraph. From and after the Closing, the provisions of this
Section 8.5 shall not apply to or restrict in any manner Purchaser's use of any
information obtained from Seller specifically relating to the Assets or
Liabilities.
8.6 Publicity; Notices. Until consummation of the Closing, Purchaser
and Seller each shall coordinate with each other in advance as to (i) the form
and content of any communication intended for dissemination to the public or the
customers of the Branches regarding the transactions contemplated by this
Agreement, (ii) the form and content of any communication from Purchaser to the
employees of Seller including the Transferred Employees, and (iii) the form and
content of any application made to any regulatory authority, or similar agency,
relating to the transactions contemplated hereby. Neither party shall
disseminate any such communication without the prior approval of the other,
which approval shall not be unreasonably withheld or delayed, except that
nothing contained in this Agreement shall prevent Seller or Purchaser from
making any and all public disclosures that either of them shall believe is
advisable to make, based upon the advice of counsel, to comply with any
applicable securities laws or regulations or requests of governmental agencies
or authorities.
8.7 Tax Reporting. The parties shall use their best efforts to agree
to an allocation statement (the "Allocation Statement") as soon as practicable
after the Closing Date concerning the allocation of the sum of the Purchase
Price and consideration paid for the assumed Liabilities among the Assets in
accordance with Section 1060 of the Code and the regulations promulgated
thereunder. Purchaser shall deliver to Seller a proposed Allocation Statement
within 120 days after the Closing Date. If Seller has not objected to such
Allocation Statement within 30 days of receipt, such Statement shall be deemed
accepted and agreed to. If Seller objects to Purchaser's proposed Allocation
Statement, Seller shall give Purchaser notice of its objections and Purchaser
and Seller shall use all reasonable efforts to resolve their differences. If, 60
days after the date on which Seller has given Purchaser notice of its
objections, the parties have not agreed to an Allocation Statement any disputes
related thereto shall be referred to a "big four" accounting firm mutually
agreed on by the parties having no material relationship with either party and
shall be resolved within 30 days after such referral. The costs, expenses and
fees of such accounting firm shall be borne equally by the parties.
The parties shall file all applicable tax returns and other
documents, including IRS Form 8594, in accordance with the Allocation Statement
(as finally determined) and will not adopt or otherwise assert tax positions
inconsistent therewith (unless required to do so under applicable law).
Purchaser shall deliver to Seller a copy of a completed IRS Form 8594 as soon as
practicable following the Closing Date but in any event not later than 60 days
prior to the due date, including extension, for filing the federal income tax
return for the year of the sale.
8.8 Interest Reporting. Seller shall report from January 1, 2004 (or
from January 1, 2005, if the Closing Date is in 2005) through the Closing Date,
and Purchaser shall report from the Closing Date through December 31, 2004 (or
through December 31, 2005, if the Closing Date is in 2005), all interest
credited to, interest premiums paid on, interest withheld from, and early
withdrawal penalties charged to, accounts included within the Deposits. Such
25
reports (on IRS Forms 1099 or similar tax information returns) shall be made to
the holders of such deposit accounts and to the applicable federal and state
regulatory agencies.
8.9 Withholding. No later than five (5) Business Days following the
Closing Date, Seller shall provide to Purchaser information regarding all "B"
notices (TINs do not match) and "C" notices (underreporting/IRS imposed
withholding) received by it from the IRS regarding any of the accounts included
within the Deposits (other than Excluded Deposits) and for a period of 180 days
following the Closing Date, Seller shall provide information regarding all
notices received by Seller from the IRS releasing withholding restrictions on
the accounts related to the Deposits (other than Excluded Deposits). Any amounts
required by any governmental agency to be withheld from any of the accounts
included within the Deposits (other than Excluded Deposits) (the "Withholding
Obligations") or any penalties imposed by any governmental agency will be
handled as follows:
(a) Any Withholding Obligations required to be remitted to the
appropriate governmental agency on or prior to the Closing Date will be withheld
and remitted by Seller, and any other sums withheld by Seller pursuant to
Withholding Obligations prior to the Closing Date shall also be remitted by
Seller to the appropriate governmental agency on or prior to the time they are
due; and
(b) Any Withholding Obligations required to be remitted to the
appropriate governmental agency after the Closing Date with respect to
Withholding Obligations after the Closing Date and not withheld by Seller shall
be withheld and remitted by Purchaser.
Any penalties described in penalty notices from the IRS or any similar penalties
that relate to Deposit accounts for periods up to and including to the Closing
Date will, subject to this Section 8.9, be paid by Seller Any penalties
described in penalty notices from the IRS or any similar penalties that relate
to Deposit accounts for periods after the Closing Date will, subject to this
Section 8.9, be paid by Purchaser. Purchaser and Seller shall cooperate with
each other in providing copies of penalty notices on a timely basis and other
information which the other party may request in order to challenge such
penalties.
8.10 Signs. Seller shall remove its signage at the Branches at its
own cost prior to Closing and using its reasonable efforts to attempt to
minimize any damage as a result of such removal.
8.11 Transitional Matters. Seller shall use its reasonable best
efforts to cooperate with Purchaser to assure an orderly transition of ownership
of the Assets and responsibility for the Liabilities, including the Deposits
assumed by Purchaser hereunder. As soon as practicable following the date of
this Agreement, but in no event later than 60 calendar days after the date of
this Agreement, Purchaser shall provide Seller with a draft of a detailed
transition plan covering operational aspects of the transition, including
methods for the transmission of data records. If Seller does not accept any part
of all of such plan, it must notify Purchaser in writing within 15 calendar days
after receiving such draft transition plan form Purchaser, whereupon the parties
agree to use their best efforts to agree upon a mutually acceptable transition
plan as soon as possible, but in no event later than 90 calendar days after the
date of this Agreement. Seller shall
26
use its reasonable best efforts to cooperate fully with Purchaser in
implementing such transition plan.
8.12 Environmental Matters.
(a) Seller agrees to deliver to Purchaser as soon as reasonably
possible, upon Purchaser's request, copies of all environmental studies, reports
and audits in Seller's possession related to the Branches.
(b) Purchaser shall have the right, but not the obligation, upon
reasonable written notice to Seller, at Purchaser's sole cost and expense, to
cause such investigations and tests to be made as it deems necessary to
determine whether there has been any soil, surface water, groundwater or
building space contamination on or under the premises of the Branches including
engaging an environmental consultant ("Consultant") to perform an investigation
into the environmental condition and compliance of the Branches ("Environmental
Survey"). Purchaser shall repair any and all damage to the Branch premises by
reason thereof, and shall indemnify and save harmless the Seller from all
liability in connection therewith. This indemnification shall survive the
termination of this Agreement. Purchaser shall conduct any phase one
environmental test within 60 days of the date of this Agreement.
(c) Seller shall cooperate with the Consultant and supply to
Consultant such historical and operational information as requested by
Consultant, any notices, permits or other written communications pertaining to
possible environmental issues, including without limitation any studies or
reports prepared by or furnished to Seller and in Seller's possession and shall
make available to Consultant persons with knowledge of such matters. Purchaser
agrees that it shall not disclose the Environmental Survey or any of the
findings or results thereof to any other person or entity, and that it will
maintain such results in strict confidentiality, unless and until such time, if
any, as the Real Property has been transferred by Seller to Purchaser in
accordance with the terms of this Agreement.
(d) If the Environmental Survey or any other information obtained by
Purchaser reveals, in Purchaser's sole discretion, any violations of an
Environmental Requirement and Seller is unwilling to remediate such violations
at its sole cost and expense, Purchaser may terminate this Agreement at any time
within sixty (60) days of the date of its receipt of such Environmental Survey
or other information by delivering to Seller a written notice of such
termination ("Environmental Matters Notice of Termination"), and if requested by
Seller, a copy of the Environmental Survey.
(e) If Purchaser elects to terminate this Agreement under the
foregoing subsection (d), Purchaser shall return to Seller all copies of
writings furnished by Seller under this Section 8.12 to Purchaser or Consultant,
including copies made by Purchaser or the Consultants.
8.13 Damage or Condemnation. If, prior to the Closing, either of the
Branches is materially damaged, destroyed, condemned (or threatened with
condemnation), Purchaser may terminate the Agreement by notice thereof to Seller
(the "Section 8.13 Purchaser Notice"). If either of the Branches is damaged,
destroyed, condemned (or threatened with condemnation), but
27
not materially so, Purchaser shall have the option to: (i) without reduction in
the Purchase Price, acquire the Branches in accordance with the terms of this
Agreement, in which case Seller shall pay to Purchaser all casualty insurance
and condemnation proceeds which have been paid (and assign to Purchaser any
rights which Seller then has with respect to any casualty insurance and
condemnation proceeds which may thereafter be paid) to Seller by reason of such
damage, destruction or condemnation; or (ii) may request that the Closing be
delayed until all damage has been repaired, in which case, upon request by
Purchaser, Seller shall immediately begin and promptly complete all required
repairs, but in no case shall such delay in the Closing be longer than ten (10)
days following completion of repairs, provided however, that Seller may elect to
terminate this Agreement in the event it determines, in its sole discretion, not
to complete the repairs required as provided by this Section 8.13(ii) (the
"Section 8.13 Seller Notice"). The term "materially" as used in this Section
8.13 means to such an extent that such event would unreasonably interfere with
the conduct of business on the premises of either of the Branches for a period
which would extend beyond the date when the Seller and Purchaser would otherwise
be obligated to conduct the Closing.
8.14 Title to Real Property.
(a) Seller agrees to deliver to Purchaser as soon as reasonably
possible, upon Purchaser's request, copies of all title information in
possession of Seller, including, but not limited to, title insurance policies,
attorneys' opinions on title, surveys, covenants, deeds and easements relating
to the Real Property. Such delivery shall constitute no warranty by Seller as to
the accuracy or completeness thereof or that Purchaser is entitled to rely
thereon.
(b) Purchaser shall have the right to obtain:
(i) At Seller's expense, title insurance commitments dated
after the date of this Agreement with respect to the Real Property issued by a
national title insurance company. The commitments shall irrevocably undertake to
issue to Purchaser ALTA owner's policies of title insurance insuring Purchaser's
title to each parcel of the Real Property, at no cost to Purchaser, for the
amounts specified in Section 2.3(ii) of this Agreement. The commitments must be
accompanied by legible copies of all instruments identified in the commitments.
(ii) At Purchaser's expense, with respect to the Real
Property, ALTA/ASCM land title surveys dated after the date of this Agreement.
The surveys will be certified to Purchaser and to the title insurance company.
The surveys shall be made by a reputable surveyor in accordance with "Minimum
Standard Detail Requirements for ALTA/ASCM Land Title Surveys", as most recently
jointly established and adopted by ALTA and ASCM, pursuant to the "Accuracy
Standards for an Urban Survey".
(c) Purchaser agrees to notify Seller, in writing within 45 calendar
days after the date of this Agreement, of any mortgages, pledges, material
liens, encumbrances, reservations, tenancies, encroachments, overlaps or other
title exceptions, survey objections, or zoning or similar land use violations
related to the Real Property to which Purchaser reasonably objects (the "Title
Defects"). If Purchaser does not notify Seller of Title Defects within such time
period, Purchaser shall be deemed to have waived its rights under this Section
8.14(c). Purchaser agrees that Title Defects shall not include real property
taxes not yet due and payable, legal
28
highways and zoning ordinances, recorded easements or recorded restrictions
which do not interfere with the use of the Real Property as such facilities are
currently utilized or materially affect the value or marketability of the Real
Property ("Permitted Encumbrances"; the term "Permitted Encumbrances" shall also
include any title defects, deficiencies, exceptions or encumbrances to which
Purchaser fails to object within said 45-day period, or to which Purchaser
objects within said 45-day period but which Seller does not correct and which
Purchaser accepts.) For a period of 30 days after Seller's receipt of such
notice of Title Defects from Purchaser, Seller shall make a good faith effort to
correct any such Title Defect to Purchaser's reasonable satisfaction; provided,
however, that Seller shall not be obligated to bring any lawsuit or make any
payments of money (except payments of not more than $25,000 to pay liens that
Seller does not dispute in good faith) to cure a Title Defect. If Seller is
unable to cure any such Title Defects to Purchaser's reasonable satisfaction,
Purchaser shall have the option either to terminate this Agreement (upon written
notice to Seller) or to receive title in its then existing condition.
(d) Purchaser shall have the right to request that the title
insurance company update title matters up to the Closing Date for any changes
which may have arisen between the date of the original title search and the
Closing Date. If such update indicates that any Title Defects have been placed
of record since the date of Purchaser's original title search, and Purchaser
reasonably objects thereto in writing, then Seller shall make a good faith
effort to cure any such Title Defect to Purchaser's reasonable satisfaction;
provided that Seller shall not be obligated to bring any lawsuit or make any
payments of money (except payments of not more than $25,000 to pay liens that
Seller does not dispute in good faith) to cure a Title Defect. If Seller is
unable or unwilling to cure any such Title Defect, Purchaser shall have the
option to receive title in its then existing condition or to terminate this
Agreement (upon written notice to Seller).
8.15 Escrow Accounts. On or prior to the Closing Date Seller will
close any escrow account maintained by Seller for the payment of taxes and
insurance on property securing an Acquired Loan.
ARTICLE IX
CONDITIONS TO OBLIGATION OF PURCHASER
The obligation of Purchaser to close the transactions contemplated
hereunder is subject to the satisfaction on or before the Closing of the
following conditions:
9.1 No Injunctions or Restraints. No order, injunction or decree
issued by any court or agency of competent jurisdiction or other legal restraint
or prohibition (a) preventing the consummation of the Closing of the
transactions contemplated by this Agreement or (b) which is reasonably likely to
(i) materially and adversely affect the business, properties or assets of the
Branches, or (ii) materially and adversely affect the transactions contemplated
by this Agreement, shall be in effect.
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9.2 Conditions Performed. Each of the terms, covenants and
conditions of this Agreement to be complied with and performed by Seller on or
before the Closing shall have been duly complied with and performed in all
material respects, or Purchaser shall have waived such compliance or
performance, and all documents to be delivered or actions to be taken by Seller
pursuant to Sections 12.2 and 12.3 shall have been delivered or performed.
9.3 Representations. Each of the representations and warranties made
by Seller herein shall be true and correct in all material respects as of the
date hereof and as of the Closing (unless such representation and warranty is
made as of a specific date and then shall be true and correct as of such date)
with the same force and effect as though such representations and warranties had
been made in accordance with the terms of this Agreement as of the Closing,
except that the representations and warranties made regarding Schedules 3.6,
3.7, 3.8, and 3.12(b), shall be true and correct as of the Closing Date with
respect to such Schedules as updated and delivered at the Closing in accordance
with the terms of this Agreement.
9.4 Consents. (a) Seller shall have received from the vendors under
the Assumed Contracts all consents required to assign such contracts to
Purchaser.
(b) Seller shall have received any third-party consents necessary to
assign the Acquired Loans and the related Loan Documents.
9.5 Documentation. The form and substance of all instruments of
transfer and the documents required to be delivered pursuant to this Agreement
by Seller shall have been completed in accordance with the terms of this
Agreement.
9.6 Collateral Assignment. Seller shall deliver to Purchaser at
Closing UCC-3 Financing Statements prepared for filing by Purchaser subsequent
to Closing assigning with respect to each UCC-1 Financing Statement filed in
connection with an Acquired Loan the related collateral to Purchaser. Seller
shall deliver to Purchaser, 5 Business Days prior to Closing, individual or
blanket assignments, as determined by Seller, prepared for filing by Purchaser
on the Closing Date with respect to each Acquired Loan that is secured by a
mortgage assigning the related mortgage to Purchaser.
9.7 Minimum Acquired Loans. On the Closing Date, the aggregate
amount of the Acquired Loan Purchase Price listed on Schedule N shall be equal
to or greater than $7,800,000, provided however, loans listed on the Acquired
Loan Schedule as of the date of this Agreement but which Purchaser determines
shall be Excluded Loans as provided by Section 5.5 hereof shall be added back to
those Acquired Loans listed on Schedule N and included in the determination of
the condition provided for herein, unless such loan is excluded by Purchaser due
to a deficiency in the Loan Documents associated with such Excluded Loan (the
"Minimum Acquired Loans").
9.8 Minimum Acquired Core Deposits. On the Closing Date, the amount
of the Core Deposits used in the calculation of the Purchase Premium shall be
equal to at least $14,000,000.
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ARTICLE X
CONDITIONS TO OBLIGATION OF SELLER
The obligation of Seller to close the transactions contemplated
hereunder is subject to the satisfaction on or before the Closing of the
following conditions:
10.1 No Injunctions or Restraints. No order, injunction or decree
issued by any court or agency of competent jurisdiction or other legal restraint
or prohibition preventing the consummation of the Closing of the transactions
contemplated by this Agreement shall be in effect.
10.2 Conditions Performed. Each of the terms, covenants and
conditions of this Agreement to be complied with and performed by Purchaser on
or before the Closing shall have been duly complied with and performed in all
material respects, or Seller shall have waived such compliance or performance,
and all documents to be delivered or actions to be taken by Purchaser pursuant
to Section 12.4 shall have been delivered or performed.
10.3 Representations. Each of the representations and warranties
made by Purchaser herein shall be true and correct as of the date hereof and as
of the Closing (unless such representation and warranty is made as of a specific
date and then shall be true and correct as of such date) with the same force and
effect as though such representations and warranties had been made as of the
Closing.
10.4 Documentation. The form and substance of all instruments of
assumption and other documents required to be delivered pursuant to this
Agreement by Purchaser shall be reasonably satisfactory in all respects to
Seller.
ARTICLE XI
CONDITIONS TO OBLIGATIONS OF BOTH PARTIES
The obligations of both parties to close the transactions
contemplated by this Agreement are subject to the satisfaction on or before the
Closing Date of each of the following conditions:
11.1 Governmental Actions. Neither the Department of Justice, the
Federal Trade Commission nor any other agency of the United States of America
(or any political subdivision thereof) shall have issued any order or taken or
threatened to take any action which would or could have the effect of preventing
the consummation of the transactions contemplated by this Agreement or asserting
any liability as a result of such transactions. No governmental action or
proceeding shall have been instituted or, in the reasonable opinion of Seller or
Purchaser, be imminent, and, at what would be the Closing, remain imminent or
pending by or before a court or other governmental body, agency or authority to
restrain or prohibit the transactions contemplated by this Agreement or assert
any material liability in connection herewith.
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11.2 Governmental Approvals. To the extent required by applicable
law or regulation, the FDIC, the ODFI, the Federal Reserve and/or such other
state or federal agencies whose approval of the transactions contemplated by
this Agreement is so required, shall have approved or authorized the
transactions contemplated by this Agreement. Any such approval required to be
obtained by Seller or Purchaser shall have been granted without the imposition
of conditions that are reasonably deemed by the affected party to be materially
burdensome. All other statutory or regulatory requirements for the valid
consummation of the transactions contemplated by this Agreement shall have been
satisfied and all other required governmental consents and approvals shall have
been obtained.
ARTICLE XII
THE CLOSING
12.1 Time and Place of Closing. Unless this Agreement is earlier
terminated pursuant to Section 14.1, the consummation of the transactions
provided for herein (the "Closing") will take place in a mutually acceptable
manner and on a mutually acceptable day (the "Closing Date") and place, which
shall be a Friday and, unless the parties mutually agree otherwise, shall be as
soon as reasonably practicable and no later than the latter of (a) the last
Business Day of the month in which all required regulatory approvals have been
received and all required regulatory waiting and notice periods have expired and
(b) the first Friday (which is also a Business Day) after the day on which all
required regulatory approvals have been received and all required regulatory
waiting and notice periods have expired, provided that Purchaser, exercising
reasonable discretion, may delay the Closing Date in the event Purchaser's
third-party data processing provider has not yet provided the services necessary
to permit the Conversion. Purchaser shall promptly after the execution of this
agreement contact such third-party data processing, after consultation with
Seller, to coordinate the earliest date available for Conversion following the
date upon which Purchaser reasonably anticipates that all required regulatory
approvals will have been received and all required regulatory waiting and notice
periods will have expired.
12.2 Payment Due at Closing. Subject to the offset provisions of
Section 2.3, Seller or Purchaser, as the case may be, shall pay to Purchaser or
Seller, as the case may be, at the Closing an amount (the "Cash Payment"), as
set forth on the Preliminary Settlement Statement, by wire transfer of
immediately available United States funds, pursuant to written wire payment
instructions to be furnished by Seller to Purchaser and to be furnished by
Purchaser to Seller at least five (5) days prior to the Closing Date. Seller
shall prepare and deliver to Purchaser at Closing the Preliminary Settlement
Statement, supported by appropriate exhibits, showing the computation of the
Cash Payment.
12.3 Closing Documents to be Delivered or Actions to be Taken by
Seller. At the Closing, Seller shall:
(a) Deliver to Purchaser updated Schedules 3.6, 3.7, 3.8, 3.12(b),
3.12(g) and 3.12(i)(1) and Schedules 5.1 and 8.4;
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(b) Deliver to Purchaser the Preliminary Settlement Statement and
any exhibits thereto;
(c) Deliver to Purchaser the Cash Payment, if any is due from Seller
to Purchaser, by wire transfer in immediately available funds to an account
designated in writing by Purchaser;
(d) Deliver to Purchaser general warranty deeds duly executed and
acknowledged by Seller in recordable form conveying title in fee simple to the
Real Property, subject only to the Permitted Encumbrances;
(e) Execute and deliver to Purchaser an Irrevocable Limited Power of
Attorney in the form attached hereto as Exhibit C;
(f) Execute and deliver to Purchaser a certificate of non-foreign
status in the form of Exhibit D hereto;
(g) Execute and deliver to Purchaser a ▇▇▇▇ of Sale and Assignment
in the form attached hereto as Exhibit E;
(h) Execute and deliver to Purchaser a General Assignment in the
form attached hereto as Exhibit F;
(i) Deliver to Purchaser possession of the Assets;
(j) Acknowledge and deliver to Purchaser an Assumption Agreement in
the form attached hereto as Exhibit G;
(k) Execute and deliver to Purchaser a Retirement Account Transfer
Agreement in the form attached hereto as Exhibit H;
(l) Deliver to Purchaser an opinion of counsel to Seller (who may be
in-house counsel to Seller) dated as of the Closing Date substantially in the
form attached hereto as Exhibit I;
(m) Deliver to Purchaser a certificate of the Designated Officers,
dated as of the Closing Date, substantially in the form attached hereto as
Exhibit J;
(n) As reasonably requested by Purchaser, 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,
including, without limitation, all consents from third parties that are required
to effect the assignments contemplated by this Agreement;
(o) Deliver or cause to be delivered to Purchaser such documents
evidencing the corporate authority and existence of Seller as Purchaser shall
reasonably request, including (i) a copy of all resolutions duly adopted by the
Board of Directors of Seller authorizing and approving the transactions
contemplated by this Agreement, certified by the Secretary or an Assistant
Secretary of Seller as being in full force and effect as of the Closing, (ii)
certified copies of the charter and bylaws of Seller as in full force and effect
as of the Closing, (iii) a
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certificate of existence issued by the ODFI and (iv) a certificate of the
Secretary or an Assistant Secretary of Seller as to the incumbency and
signatures of the officers of Seller executing the Agreement and any other
documents delivered by Seller at the Closing;
(p) Deliver to Purchaser Seller's keys to the safe deposit boxes and
Seller's records related to the Safe Deposit Business; and
(q) Deliver to Purchaser the original Loan Documents in respect of
each Acquired Loan, including, without limitation, original copies of stock
certificates, Notes (endorsed by Seller to Purchaser), mortgages, deeds,
warehouse receipts and any other instruments required under applicable law to be
in the possession of a secured party or its agent to perfect the security
interests granted to the lender under the terms of the Acquired Loans.
(r) Deliver to Purchaser such title insurance affidavits as may be
reasonably required by the title insurance company (such affidavits shall not
include indemnities unless necessary to obtain title insurance coverage for a
Title Defect).
(s) Execute and deliver to Purchaser the ▇▇▇▇▇▇▇▇▇ Education Savings
Account Transfer Agreement in the form attached hereto as Exhibit K.
12.4 Closing Documents to be Delivered or Actions to be Taken by
Purchaser. At the Closing, Purchaser shall:
(a) Deliver the Cash Payment, if any is due from Purchaser to
Seller;
(b) Execute and deliver to Seller an Assumption Agreement in the
form attached hereto as Exhibit G;
(c) Execute and deliver to Seller a Retirement Account Transfer
Agreement in the form attached hereto as Exhibit H;
(d) Deliver to Seller an opinion of counsel to Purchaser dated as of
the Closing Date substantially in the form attached hereto as Exhibit L;
(e) Deliver to Seller the certificate of the President and Chief
Executive Officer of Purchaser, or of another officer acceptable to Seller,
dated as of the Closing Date, substantially in the form attached hereto as
Exhibit M;
(f) Deliver or cause to be delivered to Seller all other documents
and instruments necessary to evidence Purchaser's assumption of the Liabilities;
and
(g) Deliver or cause to be delivered such documents evidencing the
corporate authority and existence of Purchaser as Seller shall reasonably
request, including (i) a copy of all resolutions duly adopted by the Board of
Directors of Purchaser authorizing the execution, delivery and performance of
this Agreement by Purchaser, certified by the Secretary or an Assistant
Secretary of Purchaser as being in full force and effect as of the Closing, (ii)
certified copies of the charter and bylaws of Purchaser as in full force and
effect as of the Closing, (iii) a certificate of existence issued by the ODFI,
and (iv) a certificate of the Secretary or an Assistant
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Secretary of Purchaser as to the incumbency and signatures of the officers of
Purchaser executing the Agreement and any other documents delivered by Purchaser
at the Closing.
(h) Execute and deliver to Seller the ▇▇▇▇▇▇▇▇▇ Education Savings
Account Transfer Agreement in the form attached hereto as Exhibit K.
12.5 Post-Closing Adjustment. (a) As soon as reasonably practicable
after the Closing Date, but no later than five (5) Business Days thereafter,
Seller shall provide Purchaser with: (i) final Schedules 3.6, 3.7, 3.8, and
3.12(b) that shall accurately reflect the related balances (and in the case of
Schedule 3.6, shall also indicate the aggregate amount of Core Deposits),
including accrued and unpaid interest thereon, as of the Close of Business on
the Closing Date, and (ii) a final Schedule 5.1 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.
(b) No later than thirty (30) Business Days following the Closing
Date, Seller shall prepare and deliver to Purchaser a final settlement statement
substantially in the form of Exhibit N, which shall show the calculation of the
final payment amount (the "Final Payment Amount") based upon the final schedules
delivered pursuant to this Section 12.5.
(c) If the Final Payment Amount differs from the Cash Payment, then
a payment shall be made in the following manner: if the Cash Payment is greater
than the Final Payment Amount, Purchaser shall refund to Seller the difference
between such amounts; if the Cash Payment is less than the Final Payment Amount,
Seller shall pay to Purchaser the difference between such amounts. Such refund
or payment shall be made promptly by wire transfer in immediately available
collected funds, together with interest thereon for the number of days from and
including the Closing Date to such settlement date, but excluding such
settlement date, at the rate per annum equal to the average during such period
of the average of the daily high and low rates for federal funds on each
Business Day during such period, as such rates are published in the Eastern
Edition of the Wall Street Journal, computed on the basis of actual days elapsed
over a 365-day year.
ARTICLE XIII
TRANSFER OF DEPOSIT ACCOUNTS
13.1 Deposit Post-Closing Reconciliation. (a) Inclearing Items. Not
later than the opening of business on the day following the Closing Date, Seller
shall advise the Federal Reserve Bank of Ohio that the account numbers
associated with the Branches should be reassigned to Purchaser and shall further
provide such other information necessary to expedite the clearing and sorting of
all checks, drafts, instruments and other commercial paper relating to the
Deposits (collectively referred to herein as the "Paper Items"). Purchaser shall
bear all charges and costs imposed by the Federal Reserve in connection with
reassignment of account number ranges for sorting the Paper Items. For a period
of one hundred (180) days following the Closing Date (the "Inclearing Period"),
in the event the Federal Reserve fails or refuses to direct sort such Paper
Items for delivery to Purchaser with the result that such Paper Items are
35
presented to Seller, Seller shall continue to process checks or drafts drawn on
deposit accounts included within the Deposits that are not intercepted by the
Federal Reserve. During the Inclearing Period, Seller shall by 3:00 p.m. Eastern
Time transmit by facsimile or electronic transmission a list of each inclearing
item equal to or greater than $2,500 setting forth the amount and the Seller
account number of each item received by 12:00 p.m. by Seller for payment that
day. Items received for processing after 12:00 p.m. will be listed separately
and provided no later than 9:00 a.m. on the next business day.
By 6:00 p.m. Eastern Time on each Business Day during the Inclearing
Period, Seller shall make available to Purchaser all inclearing items received
for payment on the prior Business Day. By 2:00 p.m. Eastern Time on the day
following the receipt of the inclearing items, Purchaser shall reimburse Seller
for the amount of the checks presented by wire transfer of immediately available
funds. Upon expiration of the Inclearing Period, Seller shall cease honoring
inclearing items presented against deposit accounts included within the Deposits
and such items shall be returned marked "Refer to Maker."
(b) ACH Transactions. (i) Losses due to reclamation requests against
assumed accounts that are closed or have insufficient funds to cover a
reclamation request will be absorbed by Seller if the reclamation is against a
credit received on or prior to the Closing Date, and by Purchaser if against a
credit received after the Closing Date. Purchaser shall be responsible for
processing and responding to any reclamation against deposit accounts that were
transferred to Purchaser, that are open and have sufficient funds to cover the
reclamation request. Purchaser shall notify Seller within 20 days of receipt of
a reclamation for an account that is closed or has insufficient funds to cover
the reclamation. The method of notification will be the original reclamation
paperwork containing the appropriate certifications and signatures. A check
payable to Seller (Treasury) will accompany the reclamation if partial payment
can be made.
(ii) Seller shall provide to Purchaser no later than 15 days prior
to the Conversion Date, the customer name, customer account number, and the
originator identification number for each automated clearinghouse ("ACH") entry
for the ACH originator's deposit accounts domiciled at the Branches, and shall
further provide, within seven (7) days following the Conversion Date, an updated
list as of the Close of Business on the Conversion Date. Prior to Conversion,
Seller and Purchaser will develop a methodology by which ACH items received by
Seller after Conversion will be electronically redirected to Purchaser. For a
period of one hundred eighty (180) days following the Conversion Date, Seller
agrees to continue to accept and immediately forward to Purchaser all automated
clearinghouse entries and corresponding funds. Seller also agrees to include the
originator identification number and to promptly notify and instruct the
originator of the ACH to reroute the entries directly to Purchaser. Seller shall
use its reasonable best efforts to fax or deliver to Purchaser by 1:00 p.m.
Eastern Time of each Business Day, a summary of ACH items received during such
Business Day including claim number, suffix, if applicable, source name, trade
ID, company ID, client name and effective date. After the 180-day period, Seller
may discontinue accepting and forwarding ACH entries and return them to the
originators marked "Account Sold to Another DFI." Purchaser shall indemnify
Seller against any losses arising out of or related to any account overdrafts
that may thereby be created.
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(iii) Promptly following the Closing, Seller will generate
notifications of change ("NOC") to originating financial institutions with
respect to all ACH transactions received with an effective date on or after the
Closing. In addition, the Seller will continue to generate NOCs for all
transactions received after the sale for a period not to exceed 180 days.
(iv) Purchaser shall notify Seller of all ACH return items by 8:00
A.M. on the settlement date of any such return items in accordance with NACHA
rules.
(c) Over-the-Counter Returned Items. Purchaser and Seller understand
that the balances in the Deposits assumed may consist in whole or in part of the
provisional settlement given by Seller for items deposited at Seller on or prior
to the Closing which are drawn on other financial institutions or drawees and
which have not, as of the Closing, been presented for payment and finally paid
("Uncollected Items"). In the event that any Uncollected Item is returned unpaid
for any reason, Seller shall assume the duties of a collecting bank with respect
to the Uncollected Item and shall, by 3:30 p.m. of that day, notify Purchaser by
telephone of all returned items. Seller shall return the item or items unpaid
through normal return item channels. Any funds that are not recoverable by the
Purchaser shall be handled on a without entry basis with the Seller, and Seller
will indemnify Purchaser from any loss. Additionally, Purchaser agrees to assist
Seller in recovery efforts. Purchaser and Seller have agreed that items
deposited on or prior to the Closing into the accounts assumed by Purchaser and
which thereafter are returned to Seller or Purchaser accompanied by a claim of
MICR fraud, fraudulent item or breach of presentment warranty ("Fraudulent
Items") are to be handled as "Uncollected Items" described above and Seller
shall indemnify Purchaser from all liability in connection therewith in
accordance with Section 15.2 of the Agreement; provided, however, that if with
respect to such Fraudulent Items there are insufficient funds in the customer's
account to permit Purchaser to charge-back the item in full, Seller will buy
back such Fraudulent Item at the face amount thereof; provided, further however,
if prior to the Closing, Seller had placed a "hold" or other similar protective
measure on the depositor's account with respect to such item and subsequent to
the Closing, Purchaser removes such hold or protective measure in a situation
where leaving the hold or protective measure in place would have avoided the
loss, then Seller will be responsible to Purchaser only for the excess of the
amount of the item over the amount Purchaser is able to recover with respect to
such item by charging back the item against the depositor's account.
(d) Indemnification. Each party shall indemnify the other for any
Damages incurred by such other party as a result of such other party's
compliance with instructions from the first party pursuant to this Section 13.1
or as a result of the failure of the first party to instruct such other party to
take action as required by this Section 13.1.
(e) Check Reclamations. Purchaser shall be responsible for
processing and responding to any check reclamation received against deposit
accounts that were transferred to Purchaser, are open, and have sufficient funds
to cover the reclamation request, where credit was received on or prior to the
Closing Date. Purchaser shall notify Seller within 20 days of receipt of a
reclamation for an account that is closed or has insufficient funds to cover the
reclamation against a credit that was received on or prior to the Closing Date.
The method of notification will be the original reclamation paperwork containing
the appropriate certifications and
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signatures. A check payable to Seller a (Treasury) will accompany the
reclamation if any partial payment can be made.
13.2 Effect of Transitional Action. Except as and to the extent
expressly set forth in this Article XIII, nothing contained in this Article XIII
shall be construed to be an abridgement or nullification of the rights, customs,
and established practices under applicable banking laws and regulations as they
affect any of the matters addressed in this Article XIII.
ARTICLE XIV
TERMINATION
14.1 Events of Termination. This Agreement shall be terminable upon
the occurrence of any of the following events:
(a) by mutual written consent of Seller and Purchaser;
(b) by Seller, if any of the conditions set forth in Article X or in
Article XI have not been satisfied by February 28, 2005, unless the failure of
the Closing to occur by such date shall be due to the failure of Seller to
perform or observe the covenants and agreements of Seller set forth herein,
provided, however, that if the Closing does not occur by such date and each
party hereto is using its reasonable best efforts to satisfy the conditions of
Closing set forth in Articles IX, X and XI, as applicable, such date shall be
extended for consecutive two week periods, or such longer periods as the parties
mutually agree to in writing, but in no event shall such date be extended beyond
March 31, 2005;
(c) by Purchaser, if any of the conditions set forth in Article IX
or in Article XI have not been satisfied by February 28, 2005, unless the
failure of the Closing to occur by such date shall be due to the failure of
Purchaser to perform or observe the covenants and agreements of Purchaser set
forth herein, provided, however, that if the Closing does not occur by such date
and if each party hereto is using its reasonable best efforts to satisfy the
conditions of Closing set forth in Articles IX, X and XI, as applicable, such
date shall be extended for consecutive two week periods, or such longer periods
as the parties mutually agree to in writing, but in no event shall such date be
extended beyond March 31, 2005;
(d) by Purchaser, upon an Environmental Matters Notice of
Termination given to Seller;
(e) by Purchaser or Seller upon a Section 8.13 Notice;
(f) by Purchaser upon written notice given to Seller under Section
8.14 hereof;
(g) by either party, if any representation or warranty herein of the
other party is or becomes false or inaccurate or if the other party materially
breaches any of its covenants and obligations hereunder and such breach is not
cured after 30 days' written notice thereof is given to the party committing
such breach by the other party;
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(h) by either party, if the FDIC, the ODFI, the Federal Reserve, or
any other governmental agency having jurisdiction over the transactions
contemplated by this Agreement notifies Seller or Purchaser in writing of its
final determination that such authority or agency will refuse to grant an
approval or consent to any material element of the transactions contemplated by
this Agreement necessary to the consummation thereof;
14.2 Manner of Termination. Notwithstanding anything to the contrary
herein contained, neither party hereto shall have the right to terminate this
Agreement on account of its own breach or any immaterial breach by the other
party hereto. If a party hereto desires to terminate this Agreement pursuant to
any right under this Article XIV, such termination shall be ineffective unless
notice is given in writing to the other party five (5) Business Days prior to
the date of termination.
14.3 Effect of Termination. In the event of termination of this
Agreement by either Purchaser or Seller as provided in Section 14.1, it shall be
of no further force or effect between the parties hereto, or any of the officers
or directors of any of them, except (i) as to any liability for breach of any
duty, representation, warranty, covenant or obligation arising prior to the date
of termination, or (ii) as to any post-termination obligations under Article XV
or Sections 8.5. Notwithstanding anything to the contrary contained in this
Agreement, neither Purchaser nor Seller shall be relieved or released from any
Damages arising out of its willful breach of any provision of this Agreement.
ARTICLE XV
INDEMNIFICATION
15.1 Repurchase of Loan. In the event that there is a breach or
default in any surviving representation or warranty of Seller respecting an
Acquired Loan and Seller fails to cure the breach or default within thirty (30)
days after receipt of notice from Purchaser of such breach or default, Purchaser
shall have, as its sole remedy, the right to require Seller to repurchase the
Acquired Loan. Purchaser shall exercise any right to require Seller to
repurchase an Acquired Loan within sixty (60) days after Purchaser's discovery
of the breach or default. The price that shall be paid from Seller to Purchaser
when Seller is required to repurchase an Acquired Loan shall be the total of:
(a) the outstanding principal balance of the Acquired Loan (after reduction of
the balance by any and all recoveries and other amounts which would properly be
credited against the balance) with any accrued and unpaid interest on the
principal balance until the date of payment by Seller and (b) any reasonable and
necessary expenses or advances paid by Purchaser as a result of any default by
borrower. Coincident with Seller's payment of the repurchase price, Purchaser
shall deliver to Seller all Loan Documents related to the Acquired Loan and any
assignments reasonably requested by Seller to transfer Purchaser's interest in
the Acquired Loan and any recorded Loan Documents to Seller. Purchaser shall
cooperate with Seller and, at any time thereafter, execute and deliver to Seller
any additional agreements, assignments or documents reasonably requested by
Seller to confirm or evidence that Seller is the owner of the Acquired Loan
entitled to all rights associated with such ownership. Purchaser shall not have
the right to require that Seller repurchase an Acquired Loan if Purchaser has
released collateral or taken any other action which would materially prejudice
the Seller's ability to collect the Acquired Loan.
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15.2 Indemnification by Both Parties. Except as provided by Section
15.1 hereof, Purchaser and Seller mutually agree to indemnify and hold each
other harmless from, and to reimburse each other promptly for, any and all
Damages that one party may suffer as the result of (a) the breach of any
provision of this Agreement by the other, (b) the inaccuracy of the other
party's representations or warranties; or (c) any liabilities of the other not
expressly assumed hereunder or pursuant to any agreement or other document
delivered at Closing.
15.3 Indemnification by Seller. Without limiting the generality of
Section 15.2 Seller shall indemnify, hold harmless and defend Purchaser from and
against any and all Damages arising out of any Action, brought by any bona fide
third party unaffiliated with Seller, which arise out of, or are in any way
related to, any of the Assets or Liabilities, to the extent that the event or
facts representing the proximate cause of such Damages underlying such Action,
occurred prior to the Closing, or with respect to Seller's operations or
transactions at the Branches prior to the Closing. Seller shall indemnify, hold
harmless and defend Purchaser from and against any and all Damages from any
claim for payment of a broker's or finder's fee or any other commission or
similar fee to any agent, broker, investment banker, person or firm acting on
behalf of or under authority of Seller, or acting pursuant to any statement,
representation or agreement of Seller.
15.4 Indemnification by Purchaser. Without limiting the generality
of Section 15.2 Purchaser shall indemnify, hold harmless and defend Seller from
and against any and all Damages arising out of any Action brought by any bona
fide third party unaffiliated with Purchaser which arise out of, or are in any
way related to, any of the Assets or Liabilities, to the extent that the event
or facts representing the proximate cause of such Damages underlying such Action
occurred after the Closing, or with respect to Purchaser's operations or
transactions at the Branches after to the Closing. Purchaser shall indemnify,
hold harmless and defend Seller from and against any and all Damages from any
claim for payment of a broker's or finder's fee or any other commission or
similar fee to any agent, broker, investment banker, person or firm acting on
behalf of or under authority of Purchaser, or acting pursuant to any statement,
representation or agreement of Purchaser.
15.5 Limitation on Indemnification. Other than with respect to the
Branches, notwithstanding anything to the contrary herein, neither Purchaser nor
Seller shall be entitled to any payment under this Article XV unless and until
the amount of Damages due a claiming party shall exceed $5,000 for an individual
claim or $25,000 in the aggregate.
40
ARTICLE XVI
MISCELLANEOUS
16.1 Survival of Representations and Warranties; Covenants. (a) The
representations and warranties of each of Purchaser and Seller set forth herein
and the indemnities of each such party shall survive the Closing Date regardless
of any investigations or inquiries made by Purchaser or Seller or their
respective representatives and shall continue in full force and effect for a
period of twelve (12) months following the Closing Date. (b) All covenants which
by their terms are to be performed after the Closing shall remain in effect
subsequent to the Closing Date.
16.2 Taxes; Expenses and Prorations. (a) All prepaid expenses,
property taxes and assessments with respect to the Assets and Liabilities shall
be prorated between the parties based on the full amount of the latest available
property tax or other expense bills on the basis of a three hundred and
sixty-five (365) day year as of the Close of Business on the Closing Date. All
operating expenses related to the Branches, including, but not limited to, rent,
utility, maintenance and service expenses attributable to operations until the
Close of Business on the Closing Date shall be paid by Seller; all such expenses
(or reimbursement for items prepaid by Seller) attributable to operations after
the Close of Business on the Closing Date shall be paid by Purchaser. If the
real property tax rate for the current tax year is not established by the
Closing Date the current prorations shall be made on the basis of the rate in
effect for the preceding tax year. All such prorations shall be based upon the
most recent available assessed value. Notwithstanding the forgoing allocation of
real estate taxes between Seller and Purchaser with respect to the Real Property
shall be according to the local custom the communities in which the Real
Property is located.
(b) Seller shall pay to Purchaser a portion of (i) any prepaid fees
for periodic prepaid facility fees or periodic prepaid fees for unused lines
balances that Seller has received prior to the Closing Date with respect to any
Acquired Loan or (ii) any prepaid fees relating to the Safe Deposit Business or
other Assets, in each case, prorated for the portion of the period for which
such fees were prepaid that follows such Closing Date.
(c) With respect to taxes payable or arising as a result of this
Agreement or in connection with the transactions contemplated thereby,
including, without limitation, the transfer of the Real Property, and other
Assets by Seller to Purchaser, (i) Seller shall pay all real estate transfer
taxes and conveyance fees, if any, relating to the transfer of the Real Property
and income taxes imposed on the gain recognized by Seller on the transfer of the
Assets, and (ii) Purchaser shall pay all other sales, use, transfer, filing,
recording, stamp, documentary transfer, intangibles, excise, and similar taxes
and fees (in the case of sales tax, such tax shall be paid by Purchaser to
Seller for remittance to the appropriate tax authorities).
(d) The party responsible for taxes set forth in subsection (c) of
this Section 16.2 under applicable law for the filing of related returns shall
file such returns and provide the other with copies of all relevant tax filings
and related documents (except for income tax return filings) and the other party
shall cooperate relating thereto. The party responsible for the payment of such
taxes shall indemnify and hold harmless the other (pursuant to the procedures of
Article
41
XV) from and against any such taxes due, including those arising upon subsequent
audit by a taxing authority, including interest and penalties.
(e) This Section 16.2 shall survive the consummation of the
transactions contemplated by this Agreement.
16.3 Notices. Any notice or other communication required or
permitted hereunder shall be sufficiently given if sent by registered, certified
or first class United States mail, postage prepaid; by reputable overnight
private delivery service generally used for business purposes; by personal
delivery; or by confirmed facsimile transmission addressed as follows:
If to Seller: Mr. ▇▇▇▇▇ ▇▇▇▇▇▇
President
First Citizens Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
With a copy to: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
General Counsel
First Citizens Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to Purchaser: ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
President
The Marion Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With a copy to: ▇▇▇▇▇▇▇▇, Loop & ▇▇▇▇▇▇▇▇, LLP
North Courthouse Square
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or such other address as shall be furnished in writing by either party, and such
notice or communication shall be deemed to have been received as of three (3)
Business Days after the date so mailed if sent by United States mail, one (1)
Business Day after the date sent if sent by overnight delivery service, or on
the date so delivered if delivered in person or by facsimile.
16.4 Entire Agreement; Modifications; Waivers; Headings;
Ambiguities. This Agreement, including all Exhibits and Schedules hereto,
constitutes the entire agreement
42
between the parties hereto pertaining to the subject matter hereof and
supersedes all prior agreements and understandings of the parties, whether oral
or written, in connection therewith. This Agreement may not be modified or
amended except by an instrument in writing duly executed by the parties hereto,
and no waiver of compliance with any provision or condition hereof and no
consent provided for herein shall be effective unless evidenced by an instrument
in writing duly executed by the party hereto to be charged with such waiver or
consent. No waiver of any provision of this Agreement shall be deemed or shall
constitute a waiver of any other provision hereof (whether or not similar) nor
shall such waiver constitute a continuing waiver. Article, Section and
subsection headings are not considered part of this Agreement, are solely for
convenience of reference, and are not intended to be full or accurate
descriptions of the contents of any Section or subsection. Each party hereto has
been represented by legal counsel in the review and revision of this Agreement
and each party agrees that any rule of construction to the effect that
ambiguities are to be resolved against the drafting party shall not apply in
interpreting this Agreement.
16.5 Successors and Assigns. All of the terms, obligations and
provisions of this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective transferees, successors and assigns, but
rights under this Agreement may not be assigned and duties hereunder may not be
delegated by either party without the written consent of the other, and any such
assignment or delegation shall be void and of no force or effect.
Notwithstanding the foregoing, Purchaser may at any time designate
one or more of its affiliates (whether now existing or hereafter organized) to
acquire the Assets hereunder in lieu of Purchaser; provided, however, that no
such change shall adversely affect, in the reasonable opinion of Seller, the tax
treatment to Seller of the transactions contemplated hereby, or materially delay
receipt of or require any different or additional regulatory approvals necessary
for the consummation of the transactions contemplated hereby; provided, further,
that no such change shall discharge Purchaser from any obligations or
liabilities to Seller hereunder.
16.6 Counterparts. This Agreement may be executed in counterparts,
all of which taken together shall constitute one original instrument.
16.7 Governing Law. This Agreement shall be governed by the law of
the State of Ohio applicable to contracts made and to be performed within the
State of Ohio by residents of the State of Ohio.
16.8 Time is of the Essence. Time is of the essence of this
Agreement.
16.9 Remedies. Each party acknowledges that the other will have no
adequate remedy at law if the first party fails to perform its obligations
hereunder, and each party therefore confirms that the other's right to specific
performance of the terms of this Agreement is essential to protect the rights
and interests of the other. Accordingly, in addition to any other remedies that
the parties may have at law or in equity, each party shall have the right to
have the other's obligations under this Agreement specifically performed by the
other, and shall have the right to obtain preliminary and permanent injunctive
relief to secure specific performance and to prevent a breach or contemplated
breach of this Agreement.
43
16.10 Attorneys' Fees. If any action at law or in equity, including
an action for declaratory relief, is brought to enforce or interpret the
provisions of this Agreement, the prevailing party shall be entitled to recover
reasonable attorneys' fees from the other party, which fees shall be in addition
to any other relief which may be awarded.
16.11 Severability. If any provision of this Agreement or the
application of any such provision to any person or circumstance shall be held
invalid, illegal or unenforceable in any respect by a court of competent
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their duly authorized officers as of the day and year first above written.
The ▇▇▇▇▇▇ Bank First Citizens Bank
By _________________________ By __________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Name:
Title: President and Title:
Chief Executive Officer
44
EXHIBIT A
BRANCH OFFICES
OF
SELLER
Branch Name and Location
Greencamp Branch (Owned)
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇
Richwood Branch (Owned)
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇
A-1
EXHIBIT B
PRELIMINARY SETTLEMENT STATEMENT
This Preliminary Settlement Statement is provided by First Citizens
Bank ("Seller"), pursuant to the terms of that certain Purchase of Assets and
Liability Assumption Agreement dated as of October __, 2004 by and between The
▇▇▇▇▇▇ Bank ("Purchaser") and Seller (the "Agreement"). Unless otherwise
defined, all capitalized terms used in this Preliminary Settlement Statement
shall have the meanings ascribed to them in the Agreement.
Calculation of Cash Payment
I.
1. Deposits (other than Excluded Deposits) (as reflected on
updated Schedule 3.6) $ __
2. Preliminary Purchase Price equals the sum of:
Purchase Price of Real Property $200,000
Carrying Value of Personal Property (as reflected
on updated Schedule 3.7) $ __
Cash on Hand (as reflected on initial Schedule 5.1) $ __
Acquired Loan Purchase Price (as reflected on updated
Schedule 3.12(b) $ __
Purchase price of the other assets to be acquired by
Purchaser (as reflected on updated
Schedule 2.1(a)(xi)) $ __
Closing Purchase Premium $ __
Preliminary Purchase Price $ __
3. Prepaid FDIC Insurance Premium $
4. Net amount (positive or negative) of real property
prorations, fees, taxes or other charges payable by
Purchaser to Seller pursuant to Section 16.2 $ __
B-1
5. Other prorated amounts (positive or negative) $__________
II.
Deposits $__________
less Preliminary Purchase Price $__________
less Prepaid FDIC Insurance Premium $__________
less real property prorations pursuant to
Section 16.2(a) $__________
plus/less other prorations $__________
equals CASH PAYMENT $__________
B-2
EXHIBIT C
IRREVOCABLE LIMITED POWER OF ATTORNEY
(UNLIMITED DURATION)
THIS LIMITED POWER OF ATTORNEY is executed this __________, 2004, by
First Citizens Bank, an Ohio state chartered commercial bank ("Seller").
WHEREAS, Seller and The Marion Bank, an Ohio state chartered
commercial bank (`Purchaser"), entered into a Purchase of Assets and Liability
Assumption Agreement, dated as of October____, 2004 (the "Agreement"), which
provides for the sale by Seller to Purchaser of Assets and assumption of
Liabilities of Seller by Purchaser with respect to Seller's Branches located in
Green Camp and Richwood, Ohio; and
WHEREAS, in the Agreement or Seller Transaction Documents, Seller
has agreed, from time to time, at the request of Purchaser to execute,
acknowledge and deliver to Purchaser any and all instruments, documents,
endorsements, assignments, information, materials and other papers that may be
reasonably required to accomplish the transactions contemplated by the Agreement
and give full force and effect to the intent and purposes thereof.
NOW, THEREFORE, for good and valuable consideration, receipt of
which is hereby acknowledged, Seller hereby appoints and authorizes for an
unlimited duration, the President or any Vice President, or the Secretary or any
Assistant Secretary, of Purchaser as its attorney-in-fact for the limited
purpose of executing and recording, pursuant to the terms of the Agreement and
Seller Transaction Documents any and all instruments, documents, endorsements,
assignments, information, materials, and any other papers including, but not
limited to, UCC 3 forms, mortgages, mortgage assignments, deeds, certificates of
title for vehicles and similar documents necessary to accomplish the
transactions, assignments and transfers contemplated by the Agreement and Seller
Transaction Documents. Capitalized terms used but not defined herein shall have
the meanings ascribed to them in the Agreement.
First Citizens Bank
By:______________________________
Name:
Title:
C-1
STATE OF OHIO )
COUNTY OF ____________)
I, ____________________________, a Notary Public in and for said
county in said state, hereby certify that________________ , whose name as
President, First Citizens Bank, is signed to the foregoing conveyance, and who
is known to me, acknowledged before me on this date that, being informed of the
contents of the conveyance, he, as such officer and with full authority,
executed the same voluntarily for and as the act of First Citizens Bank. Given
under my hand the ___th day of ____________, 2004.
_______________________________________
NOTARY PUBLIC
Print Name: _________________________
My Commission Expires:
[notary seal]
C-2
EXHIBIT D
CERTIFICATE OF NON-FOREIGN STATUS
Section 1445 of the Internal Revenue Code of 1986, as amended (the
"Code"), provides that a transferee of a United States real property interest
must withhold tax if the transferor is a foreign person. To inform The ▇▇▇▇▇▇
Bank, an Ohio state chartered commercial bank ("Transferee"), that the
withholding of taxes is not required upon the disposition of United States real
property interests by First Citizens Bank, an Ohio state chartered commercial
bank, ("Transferor"), the undersigned hereby certifies the following on behalf
of Transferor:
1. Transferor is not a foreign corporation, foreign partnership,
foreign trust, or foreign estate (as those terms are defined in the Code and the
Income Tax Regulations promulgated thereunder);
2. Transferor's United States employer identification number is
[______]; and
3. Transferor's office address is ______________.
Dated: ________________, 2004
"TRANSFEROR"
First Citizens Bank
By_____________________________
Name:
Title:
D-1
EXHIBIT E
▇▇▇▇ OF SALE AND ASSIGNMENT
For good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, First Citizens Bank, an Ohio state chartered
commercial bank ("Seller") does hereby assign, grant, sell, transfer and deliver
to The ▇▇▇▇▇▇ Bank ("Purchaser") in accordance with that certain Purchase of
Assets and Liability Assumption Agreement dated as of October __, 2004 by and
between Seller and Purchaser (the "Agreement"), all of Seller's right, title and
interest in and to all of the Personal Property, Assumed Contracts, Safe Deposit
Business, Records, Cash on Hand, Acquired Loans, customer lists and such other
assets as mutually agreed to, as and to the extent set forth in the Agreement.
Unless otherwise defined herein, all capitalized terms used in this
▇▇▇▇ of Sale and Assignment shall have the meanings ascribed to them in the
Agreement. This ▇▇▇▇ of Sale and Assignment has been duly executed by Seller and
Purchaser as of the __ day of ____, 2004.
First Citizens Bank
By__________________________
Name:
Title:
The ▇▇▇▇▇▇ Bank
By__________________________
Name:
Title:
E-1
EXHIBIT F
GENERAL ASSIGNMENT
For good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, First Citizens Bank ("Seller") does hereby
assign, grant, sell, transfer, convey and deliver to The ▇▇▇▇▇▇ Bank
("Purchaser"), in accordance with that certain Purchase of Assets and Liability
Assumption Agreement dated as of ______________, 2004, by and between Seller and
Purchaser (the "Agreement"), all of Seller's right, title and interest, if any,
in, under and to any and all guaranties, warranties and other similar rights,
whether express or implied, issued or made in connection with or related to the
acquisition, development, construction, operation, maintenance and/or repair of
the Branches, the improvements or Real Property, or any portion thereof, or the
Personal Property, including, among other things, any warranty covering any
machinery and any mechanical, electrical, HVAC or plumbing system used in the
operation of the Branches.
Unless otherwise defined herein, all capitalized terms used in this
General Assignment shall have the meanings ascribed to them in the Agreement.
This General Assignment has been duly executed by Seller as of ____________ __,
2004.
First Citizens Bank
By______________________________
Name:
Title:
F-1
EXHIBIT G
ASSUMPTION AGREEMENT
FOR VALUE RECEIVED, The ▇▇▇▇▇▇ Bank ("Purchaser"), a Ohio state
chartered commercial bank, has executed and delivered this Assumption Agreement
(this "Assumption Agreement") to First Citizens Bank ("Seller"), pursuant to the
terms of that certain Purchase of Assets and Liability Assumption Agreement
dated as of ______________, 2004 (the "Agreement"). Unless otherwise defined
herein, all capitalized terms used in this Assumption Agreement shall have the
meanings ascribed to them in the Agreement.
Purchaser hereby assumes all duties and obligations of Seller
arising on and after the Close of Business on the date hereof under and with
respect to the Deposits (other than Excluded Deposits), the Assumed Contracts,
the Safe Deposit Business, the Acquired Loans, and the ownership and operation
of the Personal Property. Without limiting the foregoing, Purchaser further
hereby specifically assumes the liability of Seller with respect to each account
holder whose account is included within the Deposits (other than Excluded
Deposits) and agrees to pay to such account holder the principal amount of such
account holder's deposits plus interest accrued thereon through the date hereof
in accordance with the terms of such deposit accounts through the date hereof.
Purchaser further hereby assumes and agrees to perform and be bound by the terms
of the deposit agreements and loan agreements governing the terms of the
Deposits and the Acquired Loans as in effect as of the date hereof. Purchaser
further hereby assumes and agrees to fully and timely perform and discharge all
the duties and obligations of Seller arising from and after the date hereof with
respect to the Safe Deposit Business, including, but not limited to, the
maintenance of all necessary facilities and the provision of all necessary
services for the use of safe deposit business by renters thereof, subject to the
provisions of the applicable leases or other agreements relating to such
business.
IN WITNESS WHEREOF, Purchaser and Seller have caused this Assumption
Agreement to be signed by their duly authorized officers as of this ___ day of
_______________, 2004.
The ▇▇▇▇▇▇ Bank First Citizens Bank
By: ______________________ By: ______________________
Name: Name:
Title: Title:
G-1
EXHIBIT H
RETIREMENT ACCOUNT TRANSFER AGREEMENT
This Agreement (this "Transfer Agreement") is made between The
▇▇▇▇▇▇ Bank, an Ohio state chartered commercial bank ("Successor Trustee"), and
First Citizens Bank ("Resigning Trustee"). Capitalized terms not defined herein
shall have the meanings ascribed to them in the Purchase of Assets and Liability
Assumption Agreement dated as of the ______________, 2004 by and between
Resigning Trustee and Successor Trustee (the "Agreement").
RECITALS
A. Resigning Trustee has served as trustee with respect to certain
retirement accounts (collectively, the "Plans"), included within the Agreement,
the funds of which are domiciled at the Branches.
B. Pursuant to the Agreement, Successor Trustee is acquiring from
Resigning Trustee certain Deposits, including Deposits which constitute funds of
the Plans.
C. In connection with the acquisition of such Deposits, Successor
Trustee will succeed to the trusteeship of the Plans and become successor
trustee in the place of Resigning Trustee.
D. The parties deem it necessary and advisable to execute this
Transfer Agreement in order to describe the terms of transfer of the Plans and
the duties and responsibilities of the parties with regard thereto.
E. Execution of this Transfer Agreement is an element of the
consideration for the execution by the parties of the Agreement and a condition
to closing thereunder.
TRANSFER AGREEMENT
Now, therefore, in consideration of premises stated above, the
mutual promises contained herein and in the Agreement, and other good and
valuable consideration, the receipt and sufficiency of which the parties hereby
acknowledge, the parties hereby agree as follows:
0.1 As of the Close of Business on the Closing Date, or such other
date and time as the parties may fix (the "Transfer Date"), the Resigning
Trustee shall assign, transfer and deliver to the Successor Trustee as set forth
in the Agreement, funds and Deposits, domiciled in Resigning Trustee's Branches
and appoint Successor Trustee as the successor trustee with respect to the
Plans. As of the Transfer Date, Successor Trustee assumes all obligations as
Trustee under the Plans.
0.2 After the Transfer Date, the Successor Trustee shall not accept
any new plans naming the Resigning Trustee as trustee, nor shall the Successor
Trustee use any advertising,
H-1
materials, plan documents, or any other printed matter referring to the
Resigning Trustee as trustee of any retirement accounts.
0.3 The Resigning Trustee shall prepare and file all required
year-end reports for all activity under the Plans transferred to Successor
Trustee, including, but not limited to, IRS form 1099R and IRS form 5498 for the
portion of the calendar year 2004 to and including the Transfer Date. The
Successor Trustee shall prepare and file such reports, where applicable, for the
balance of the calendar year 2004 and thereafter, so long as the Successor
Trustee remains as the trustee. It is further agreed that the Resigning Trustee
and Successor Trustee will each report their portion of any withholding for such
Plans to the appropriate state and federal agencies.
0.4 In the event that the Resigning Trustee receives after the
Transfer Date, any documents, correspondence or other written materials relating
to the Plans transferred to Successor Trustee, the Resigning Trustee will
promptly forward such items to the Successor Trustee with a written explanation
of such items. The Resigning Trustee agrees to answer reasonable inquiries from
the Successor Trustee pertaining to the Plans and any pending transactions or
items received after the Transfer Date.
0.5 No later than six (6) Business Days following the Transfer Date
the Resigning Trustee shall deliver to the Successor Trustee all original or
legible certified copies of (i) all documents executed by the depositors of the
Plans to be transferred to Successor Trustee, including, but not limited to, all
applications, adoption agreements, membership agreements, plan amendments, and
beneficiary forms, and (ii) all other records and information necessary to allow
the Successor Trustee to administer and conduct business with respect to such
Plans.
0.6 No later than the Transfer Date the Resigning Trustee agrees to
provide the Successor Trustee, with a complete and up-to-date listing of:
0.6(a) any and all participants of the Plans transferred to
Successor Trustee that have reached age 70 1/2 by or
during 2004, and prior year balances required for
calculations of mandatory distributions;
0.6(b) any or all Plans at Resigning Trustee's Branches
receiving periodic distributions, the method of
calculation for arriving at such amounts distributed,
and copies of the approved distribution forms;
0.6(c) any and all Plans on the Resigning Trustee's system on
deposit at the Branches;
0.6(d) any and all Plans at the Resigning Trustee's Branches
currently not exempted from either federal tax
withholding or state withholding, or both, and current
filing status for each participant where withholding may
apply; and
(e) any and all Plans at Resigning Trustee's Branches where
the Plan participant has died, the date of death (if
known) and a legible copy of the death certificate when
available.
H-2
0.7 The Resigning Trustee agrees that, prior to the Transfer Date,
it shall make any and all of the following payments or take any and all of the
following actions, each as required to be made or taken prior to the Transfer
Date:
0.7(a) distribute all scheduled 2004 mandatory minimum
distribution payments scheduled for payment prior to the
Transfer Date;
0.7(b) complete all scheduled or pending transfers; and
0.7(c) distribute all scheduled periodic and non-periodic
distributions.
0.8 The Successor Trustee agrees to indemnify and hold harmless the
Resigning Trustee from all Damages (as defined in the Agreement) that the
Resigning Trustee, its affiliates, successors, directors, officers, employees,
or agents may incur as a result of the Successor Trustee's failure to perform
its obligations under this Transfer Agreement.
0.9 The Resigning Trustee agrees to indemnify and hold harmless the
Successor Trustee from all Damages (as defined in the Agreement) that the
Successor Trustee, its affiliates, successors, directors, officers, employees,
or agents may incur as a result of the Resigning Trustee's failure to perform
its obligations under this Transfer Agreement.
0.10 If any action or proceeding is brought by either party against
the other pertaining to or arising out of this Transfer Agreement, the final
prevailing party shall be entitled to recover all costs and expenses, including
reasonable attorneys' fees, incurred on account of such action or proceeding.
0.11 This Transfer Agreement may be executed in any number of
counterparts, each of which shall be an original but all of which constitute one
and the same instrument.
Executed this ____ day of _________, 2004.
The ▇▇▇▇▇▇ Bank First Citizens Bank
By_________________________ By________________________
Name: Name:
Title: Title:
H-3
EXHIBIT I
FORM OF OPINION OF COUNSEL TO SELLER
(To be provided at the Closing by __________)
[Date]
The ▇▇▇▇▇▇ Bank
[Address]
Ladies and Gentlemen:
I have acted as counsel to First Citizens Bank ("Seller"), an Ohio
corporation, in connection with negotiation and execution of the Purchase of
Assets and Liability Assumption Agreement dated as of ________________, 2004
(the "Agreement") between Seller and The ▇▇▇▇▇▇ Bank ("Purchaser"), and in
connection with the transactions contemplated thereby. I am rendering this
opinion pursuant to Section 12.3 of the Agreement.
The law covered by the opinions expressed herein is limited to the
federal law of the United States and the laws of the State of Ohio. Terms
defined in the Agreement and not otherwise defined herein are used with the
meanings defined therein.
With respect to matters of fact material to the opinions expressed
herein, I have relied solely upon the representations of the parties contained
in the Agreement, and upon certifications of officers of the Seller and of
governmental officials. I have assumed that the certifications and
representations dated earlier than the date hereof on which I have relied
continue to remain accurate, insofar as material to my opinions, from each
earlier date through the date hereof. I have not undertaken independent
investigation to determine the existence or absence of such facts and no
inference as to my knowledge of the existence or absence of such facts and in
inference as to my knowledge of the existence or absence of such facts should be
drawn from my representation of Seller.
My opinion in subparagraph (2) below regarding the enforceability of
the Agreement is subject to the specific qualifications set forth in
subparagraph (2) below.
Based on the foregoing, and solely in reliance thereon, I am of the
opinion that:
1. Seller is an Ohio state chartered commercial bank in good
standing under the laws of the State of Ohio and is qualified under such laws to
do business.
2. The execution, delivery and performance of the Agreement and
the consummation of the transactions contemplated thereby by Seller have been
duly and validly authorized and approved by all requisite corporation action.
Assuming the due and valid
I-1
execution, delivery and performance of the Agreement and the transactions
contemplated thereby by you, the Agreement is a valid and binding obligation of
Seller, enforceable in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors of Ohio state chartered commercial banks and that
the remedy of specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion of the court
before which any proceedings therefor may be brought.
3. The execution and delivery of the Agreement and the
consummation of the transactions contemplated thereby will not (a) conflict with
any of the provisions of the charter, bylaws or other governing instruments of
Seller, (b) violate any applicable laws, orders or regulations, (c) breach, or
result in a default under, any existing obligation of Seller under any material
agreement to which it is a party or by which any of its property is bound, or
(d) require the affirmative consent or approval of any governmental or
nongovernmental third party (other than as expressly contemplated in the
Agreement).
4. To my best knowledge, there are no actions, suits, claims,
proceedings or investigations pending or threatened against Seller that (a)
question the validity of or otherwise challenge the Agreement, (b) seek to
restrain, enjoin or prevent the consummation of the transactions contemplated by
the Agreement, or (c) could reasonably be expected to result in rescission of
the Agreement or the transactions contemplated thereby.
This opinion is given to you for your sole benefit in connection
with the Agreement, and no other person or entity is entitled to rely thereon,
nor may copies be delivered or furnished to any other party, nor may all or
portions of this opinion be quoted, circulated or referred to in any other
document without my prior written consent.
Sincerely,
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, General Counsel
JEM:lkr
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EXHIBIT J
FORM OF SELLER'S DESIGNATED OFFICER'S CERTIFICATE
Each of the undersigned, hereby certifies that he is a duly elected
officer of First Citizens Bank ("Seller"), and as such delivers this certificate
pursuant to the Purchase of Assets and Liability Assumption Agreement dated as
of ______________, 2004 (the "Agreement"), by and between Seller and The ▇▇▇▇▇▇
Bank, a Ohio state chartered commercial bank ("Purchaser"), and further
certifies that:
(a) Each of the terms, covenants and conditions of the Agreement to
be complied with and performed by Seller on or before this date have been
duly complied with and performed in all material respects, or such
compliance or performance has been waived by Purchaser, and all documents
to be delivered or actions to be taken by Seller pursuant to Sections 12.2
and 12.3 of the Agreement have been delivered or performed; and
(b) Each of the representations and warranties made by Seller in the
Agreement are true and correct as of this date with the same force and
effect as though such representations and warranties are made as of this
date, except representations and warranties made as of a specified point
in time which representations and warranties are true and correct as of
said specific time and except that the representations and warranties made
regarding Schedules 2.1(a)(xi), 3.6, 3.7, 3.12(b) and 5.1 are true and
correct as of this date with respect to such Schedules as updated and
delivered on this date.
IN WITNESS WHEREOF, the undersigned has executed this certificate as
of the _____ day of ________, 2004.
First Citizens Bank
By__________________________
Name:
Title:
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EXHIBIT K
▇▇▇▇▇▇▇▇▇ EDUCATION SAVINGS
ACCOUNT TRANSFER AGREEMENT
This ▇▇▇▇▇▇▇▇▇ EDUCATION SAVINGS ACCOUNT TRANSFER AGREEMENT (this
"Transfer Agreement") is made between THE ▇▇▇▇▇▇ BANK, an Ohio State Chartered
Commercial Bank ("Successor Trustee), and First Citizens Bank ("Resigning
Trustee"). Capitalized terms not defined herein shall have the meanings ascribed
to them in the Purchase of Assets and Liability Assumption Agreement dated as of
the ______________, 2004 by and between Resigning Trustee and Successor Trustee
(the "Agreement").
RECITALS
A. Resigning Trustee has served as trustee with respect to certain
▇▇▇▇▇▇▇▇▇ Education Savings accounts (collectively, the "Accounts"), included
within the Agreement, the funds of which are domiciled at the Branches.
B. Pursuant to the Agreement, Successor Trustee is acquiring from
Resigning Trustee certain Deposits, including Deposits which constitute funds of
the Accounts.
C. In connection with the acquisition of such Deposits, Successor
Trustee will succeed to the trusteeship of the Accounts and become successor
trustee in the place of Resigning Trustee.
D. The parties deem it necessary and advisable to execute this
Transfer Agreement in order to describe the terms of transfer of the Accounts
and the duties and responsibilities of the parties with regard thereto.
E. Execution of this Transfer Agreement is an element of the
consideration for the execution by the parties of the Agreement and a condition
to closing thereunder.
TRANSFER AGREEMENT
Now, therefore, in consideration of premises stated above, the
mutual promises contained herein and in the Agreement, and other good and
valuable consideration, the receipt and sufficiency of which the parties hereby
acknowledge, the parties hereby agree as follows:
0.1 As of the Close of Business on the Closing Date, or such other
date and time as the parties may fix (the "Transfer Date"), the Resigning
Trustee shall assign, transfer and deliver to the Successor Trustee as set forth
in the Agreement, Deposits, domiciled in Resigning Trustee's Branches and
appoint Successor Trustee as the successor trustee with respect to the Accounts.
As of the Transfer Date, Successor Trustee assumes all obligations as Trustee
under the Plans.
K-1
0.2 After the Transfer Date, the Successor Trustee shall not accept
any new accounts naming the Resigning Trustee as trustee, nor shall the
Successor Trustee use any advertising, materials, account documents, or any
other printed matter referring to the Resigning Trustee as trustee of any
▇▇▇▇▇▇▇▇▇ Education Savings accounts.
0.3 The Resigning Trustee shall prepare and file all required
year-end reports for all activity under the Accounts transferred to Successor
Trustee, including, but not limited to, IRS form 1099Q and IRS form 5498 ESA for
the portion of the calendar year 2004 to and including the Transfer Date. The
Successor Trustee shall prepare and file such reports, where applicable, for the
balance of the calendar year 2004 and thereafter, so long as the Successor
Trustee remains as the trustee. It is further agreed that the Resigning Trustee
and Successor Trustee will each report their portion of any withholding for such
Accounts to the appropriate state and federal agencies.
0.4 In the event that the Resigning Trustee receives after the
Transfer Date, any documents, correspondence or other written materials relating
to the Accounts transferred to Successor Trustee, the Resigning Trustee will
promptly forward such items to the Successor Trustee with a written explanation
of such items. The Resigning Trustee agrees to answer reasonable inquiries from
the Successor Trustee pertaining to the Accounts and any pending transactions or
items received after the Transfer Date.
0.5 No later than six (6) Business Days following the Transfer Date
the Resigning Trustee shall deliver to the Successor Trustee all original or
legible certified copies of (i) all documents executed by the depositors and
responsible individuals of the Accounts to be transferred to Successor Trustee,
including, but not limited to, all applications, adoption agreements, membership
agreements, account amendments, and beneficiary forms, and (ii) all other
records and information necessary to allow the Successor Trustee to administer
and conduct business with respect to such Accounts.
0.6 No later than the Transfer Date the Resigning Trustee agrees to
provide the Successor Trustee, with a complete and up-to-date listing of:
0.6(a) any and all Accounts on the Resigning Trustee's system
on deposit at the Branches;
0.6(b) any and all Accounts at the Resigning Trustee's Branches
currently not exempted from either federal or state tax
withholding, and current filing status for each
participant where withholding may apply;
0.6(c) any and all Accounts at Resigning Trustee's Branches
where the designated beneficiary has died and the
designated death beneficiary is a family member of the
designated beneficiary and is under age 30 on the date
of death. In such case, that family member shall become
the designated beneficiary; and
0.6(d) any and all Accounts at Resigning Trustee's Branches
where the Designated Beneficiary has reached age 30 and
distribution to such Designated Beneficiary can not be
made prior to the Transfer Date.
K-2
0.7 The Resigning Trustee agrees that, prior to the Transfer
Date, it shall make any and all of the following
payments or take any and all of the following actions,
each as required to be made or taken prior to the
Transfer Date:
0.7(a) complete all scheduled or pending transfers; and
0.7(b) distribute all scheduled distributions.
0.8 The Successor Trustee agrees to indemnify and hold harmless the
Resigning Trustee from all Damages (as defined in the Agreement) that the
Resigning Trustee, its affiliates, successors, directors, officers, employees,
or agents may incur as a result of the Successor Trustee's failure to perform
its obligations under this Transfer Agreement.
0.9 The Resigning Trustee agrees to indemnify and hold harmless the
Successor Trustee from all Damages (as defined in the Agreement) that the
Successor Trustee, its affiliates, successors, directors, officers, employees,
or agents may incur as a result of the Resigning Trustee's failure to perform
its obligations under this Transfer Agreement.
0.10 If any action or proceeding is brought by either party against
the other pertaining to or arising out of this Transfer Agreement, the final
prevailing party shall be entitled to recover all costs and expenses, including
reasonable attorneys' fees, incurred on account of such action or proceeding.
0.11 This Transfer Agreement may be executed in any number of
counterparts, each of which shall be an original but all of which constitute one
and the same instrument.
Executed this ____ day of _________, 2004.
THE ▇▇▇▇▇▇ BANK FIRST CITIZENS BANK
By_________________________ By________________________
Name: Name:
Title: Title:
K-3
EXHIBIT L
FORM OF OPINION OF COUNSEL TO PURCHASER
(To be provided at the Closing by Counsel for Purchaser)
[Date]
First Citizens Bank
_______________
_______________
Ladies and Gentlemen:
We have acted as special counsel to The ▇▇▇▇▇▇ Bank ("Purchaser"), a Ohio state
chartered commercial bank, in connection with the negotiation and execution of
the Purchase of Assets and Liability Assumption Agreement dated as of
______________, 2004 (the "Agreement"), between First Citizens Bank ("Seller")
and Purchaser, and in connection with the transactions contemplated thereby. We
are rendering this opinion to you pursuant to Section 12.4 of the Agreement.
This opinion is governed by, and shall be interpreted in accordance with, the
Legal Opinion Accord (the "Accord") of the American Bar Association's Section of
Business Law (1991). As a consequence, it is subject to a number of
qualifications, exceptions, definitions, limitations on coverage and other
limitations, all as more particularly described in the Accord, and this opinion
should be read in conjunction therewith. The law covered by the opinions
expressed herein is limited to the federal law of the United States and the laws
of the State of Ohio. Terms defined in the Agreement or in the Accord and not
otherwise defined herein are used with the meanings defined therein.
With respect to matters of fact material to the opinions expressed herein, we
have relied solely upon the representations of the parties contained in the
Agreement, and upon certifications of officers of the Purchaser and of
governmental officials. We have assumed that the certifications and
representations dated earlier than the date hereof on which we have relied
continue to remain accurate, insofar as material to our opinions, from such
earlier date through the date hereof. We have not undertaken any independent
investigation to determine the existence or absence of such facts and no
inference as to our knowledge of the existence or absence of such facts should
be drawn from our representation of Purchaser.
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Our opinion in subparagraph (ii) below regarding the enforceability of the
Agreement is subject to the General Qualifications set forth in the Accord, and
to the specific qualifications set forth in subparagraph (ii) below.
Based on the foregoing, and solely in reliance thereon, we are of the opinion
that:
(i) Purchaser is an Ohio state chartered commercial bank in good
standing under the laws of the State of Ohio and is qualified under
such laws to do business.
(ii) The execution, delivery and performance by Purchaser of the
Agreement and the documents executed in connection therewith have
been duly authorized by all necessary corporate action, executed and
delivered by, and each is a valid and binding obligation of,
Purchaser, enforceable in accordance with its terms, except as
limited by bankruptcy, insolvency, reorganization or other laws
relating to or affecting the enforcement of creditors' rights
generally including, without limitation, the avoidance powers of the
FDIC pursuant to the Federal Deposit Insurance Act and except that
courts might award money damages rather than specific performance.
(iii) The execution and delivery of the Agreement and the consummation of
the transactions contemplated thereby will not violate any law or
violate any provision of, or result in the breach of, or accelerate
or permit the acceleration of the performance required by the terms
of the respective articles of association or bylaws of Purchaser, or
any agreement known to us after reasonable inquiry to which
Purchaser is a party or by which it or any of its assets may be
bound or any order, judgment or decree known to us to be binding
upon Purchaser; and
(iv) We do not know of any litigation or other proceeding or governmental
investigation pending or threatened against or relating to Purchaser
which might have a material adverse effect on or relating to the
transactions contemplated by the Agreement.
This opinion is given to you for your sole benefit in connection with the
Agreement, and no other person or entity is entitled to rely thereon, nor may
copies be delivered or furnished to any other party, nor may all or portions of
this opinion be quoted, circulated, or referred to in any other document without
our prior written consent.
Very truly yours,
▇▇▇▇▇▇▇▇, Loop & ▇▇▇▇▇▇▇▇, LLP
L-1
EXHIBIT M
FORM OF PURCHASER'S OFFICER'S CERTIFICATE
The undersigned, ___________________, hereby certifies that he is
the duly elected ____________________ of The ▇▇▇▇▇▇ Bank ("Purchaser") an Ohio
state chartered commercial bank, and, as such delivers this certificate pursuant
to the Purchase of Assets and Liability Assumption Agreement dated as of
______________, 2004 (the "Agreement"), by and between Purchaser and First
Citizens Bank ("Seller"), and further certifies that:
(a) Each of the terms, covenants and conditions of the Agreement to
be complied with and performed by Purchaser on or before this date have
been duly complied with and performed in all material respects, or such
compliance or performance has been waived by Seller, and all documents to
be delivered or actions to be taken by Purchaser pursuant to Section 12.4
of the Agreement have been delivered or performed; and
(b) Each of the representations and warranties made by Purchaser in
the Agreement are true and correct as of this date with the same force and
effect as though such representations and warranties are made as of this
date, except representations and warranties made as of a specific point in
time which representations and warranties are true and correct as of said
specified time.
IN WITNESS WHEREOF, the undersigned has executed this certificate as
of the _____ day of ________, 2004.
The ▇▇▇▇▇▇ Bank
By__________________________
Name:
Title:
M-1
EXHIBIT N
FINAL SETTLEMENT STATEMENT
This Final Settlement Statement is provided by First Citizens Bank
("Seller") pursuant to the terms of that certain Purchase of Assets and
Liability Assumption Agreement dated as of ______________, 2004 by and between
The ▇▇▇▇▇▇ Bank ("Purchaser") and Seller (the "Agreement"). Unless otherwise
defined, all capitalized terms used in this Final Settlement Statement shall
have the meanings ascribed to them in the Agreement.
Calculation of Final Purchase Price
I.
A. Deposits (other than Excluded Deposits) (as reflected on
final Schedule 3.6 delivered pursuant to Section 12.2) $ ====
B. Final Purchase Price equals the sum of:
Value of Real Property per Section 2.3(ii) $200,000
Carrying Value of Personal Property (as reflected on final
Schedule 3.7) $_______
Cash on Hand (as reflected on final Schedule 5.1) $_______
Acquired Loan Purchase Price (as reflected on final
Schedule 3.12(b) $_______
Purchase price of the other assets to be acquired by
Purchaser (as reflected on final Schedule 2.1(a)(xi)) $_______
Final Purchase Premium $_______
Final Purchase Price $ ======
C. Prepaid FDIC Insurance Premium $_______
D. Net amount (positive or negative) of real property
prorations fees, taxes or other charges payable by Purchaser to
Seller pursuant to Section 16.2 $_______
E. Other prorated amounts (positive or negative) $_______
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II.
Deposits $__________
less Final Purchase Price $__________
less Prepaid FDIC Insurance Premium $__________
less real property prorations pursuant to
Section 16.2 $__________
plus/less other proration $__________
equals FINAL PAYMENT AMOUNT $==========
III.
Cash Payment (paid on Closing Date) $__________
Amount Final Payment Amount exceeds Cash Payment $__________
Interest $__________
Total to be paid to Purchaser by Seller
OR
Amount Cash Payment exceeds Final
Payment Amount $__________
Interest $__________
Total to be paid to Seller
by Purchaser $==========
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Schedule 2.1(a)(xi) Page 1