EXHIBIT 2
PURCHASE AND ASSUMPTION AGREEMENT
BY AND AMONG
RURBAN FINANCIAL CORP.,
RFC BANKING COMPANY
AND
FIRST FEDERAL BANK OF THE MIDWEST
PURCHASE AND ASSUMPTION AGREEMENT
PAGE
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ARTICLE I - THE ASSETS........................................................................1
Section 1.1. Branches..........................................................1
ARTICLE II - PURCHASE OF ASSETS AND ASSUMPTIONS OF LIABILITIES................................1
Section 2.1. Transferred Assets................................................1
Section 2.2. Purchase Price....................................................3
Section 2.3. Deposit Liabilities...............................................4
Section 2.4. Transferred Loans.................................................7
Section 2.5. Safe Deposit Business.............................................8
Section 2.6. Employee Matters..................................................9
Section 2.7. Records and Data Processing, Etc.................................10
Section 2.8. Security and Insurance...........................................11
Section 2.9. Taxes and Fees; Proration of Certain Expenses....................11
Section 2.10. Title to Real Property...........................................11
Section 2.11. Environmental Matters............................................13
Section 2.12. Facilitating Loan by Buyer.......................................13
ARTICLE III - CLOSING AND EFFECTIVE TIME.....................................................14
Section 3.1. Effective Time...................................................14
Section 3.2. Closing..........................................................14
Section 3.3. Post-Closing Adjustments.........................................16
ARTICLE IV - INDEMNIFICATION.................................................................17
Section 4.1. Seller's Indemnification of Buyer................................17
Section 4.2. Buyer's Indemnification of Seller................................18
Section 4.3. Claims for Indemnity.............................................18
Section 4.4. Limitations on Indemnification...................................19
ARTICLE V - REPRESENTATIONS AND WARRANTIES OF SELLER.........................................19
Section 5.1. Corporate Organization...........................................19
Section 5.2. No Violation.....................................................19
Section 5.3. Corporate Authority..............................................19
Section 5.4. Enforceable Agreement............................................19
Section 5.5. No Brokers.......................................................20
Section 5.6. Personal Property................................................20
Section 5.7. Real Property....................................................20
Section 5.8. Condition of Property............................................21
Section 5.9. Employees........................................................21
Section 5.10. Environmental Matters............................................21
Section 5.11. Deposit Liabilities..............................................22
Section 5.12. Books, Records, Documentation, Etc...............................22
Section 5.13. Litigation.......................................................22
Section 5.14. Contracts and Agreements.........................................23
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Section 5.15. Tax Matters......................................................23
Section 5.16. Compliance with Law..............................................23
Section 5.17. Transferred Loans................................................23
Section 5.18. Limitation and Survival of Representations and Warranties........24
ARTICLE VI - REPRESENTATIONS AND WARRANTIES OF BUYER.........................................24
Section 6.1. Corporate Organization...........................................24
Section 6.2. No Violation.....................................................24
Section 6.3. Corporate Authority..............................................25
Section 6.4. Enforceable Agreement............................................25
Section 6.5. No Brokers.......................................................25
Section 6.6. Litigation.......................................................25
Section 6.7. Survival of Representations and Warranties.......................25
ARTICLE VII - OBLIGATIONS OF PARTIES PRIOR TO AND AFTER EFFECTIVE TIME.......................25
Section 7.1. Full Access......................................................25
Section 7.2. Delivery of Magnetic Media Records...............................26
Section 7.3. Application for Approval.........................................26
Section 7.4. Conduct of Business; Maintenance of Properties...................26
Section 7.5. No Solicitation by Seller........................................27
Section 7.6. Further Actions..................................................27
Section 7.7. Fees and Expenses................................................27
Section 7.8. Breaches with Third Parties......................................27
Section 7.9. Operations.......................................................28
Section 7.10. Destruction and Condemnation.....................................29
Section 7.11. Insurance........................................................29
Section 7.12. Public Announcements.............................................29
Section 7.13. Tax Reporting....................................................30
Section 7.14. Transitional Matters.............................................30
Section 7.15. No Solicitation by Buyer.........................................30
ARTICLE VIII - CONDITIONS TO BUYER'S OBLIGATIONS.............................................30
Section 8.1. Representations and Warranties True..............................30
Section 8.2. Obligations Performed............................................31
Section 8.3. No Proceedings...................................................31
Section 8.4. Regulatory Approval..............................................31
ARTICLE IX - CONDITIONS TO SELLER'S OBLIGATIONS..............................................31
Section 9.1. Representations and Warranties True..............................31
Section 9.2. Obligations Performed............................................32
Section 9.3. No Proceedings...................................................32
Section 9.4. Regulatory Approval..............................................32
ARTICLE X - TERMINATION......................................................................32
Section 10.1. Methods of Termination...........................................32
Section 10.2. Procedure Upon Termination.......................................33
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Section 10.3. Payment of Expenses..............................................33
ARTICLE XI - CONFIDENTIAL INFORMATION........................................................34
Section 11.1. Definition of Confidential Information...........................34
Section 11.2. Use of Confidential Information..................................34
Section 11.3. Legal Proceedings................................................35
Section 11.4. Remedies for Breach..............................................35
ARTICLE XII - MISCELLANEOUS PROVISIONS.......................................................36
Section 12.1. Notification of Occurrences......................................36
Section 12.2. Amendment and Modification.......................................36
Section 12.3. Waiver or Extension..............................................36
Section 12.4. Assignment.......................................................36
Section 12.5. Addresses for Notices, Etc.......................................36
Section 12.6. Counterparts.....................................................37
Section 12.7. Headings.........................................................37
Section 12.8. Governing Law....................................................37
Section 12.9. Sole Agreement...................................................37
Section 12.10. Parties In Interest..............................................38
Section 12.11. Calculation of Dates and Deadlines...............................38
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PURCHASE AND ASSUMPTION AGREEMENT
THIS PURCHASE AND ASSUMPTION AGREEMENT (this "Agreement") is entered
into as of February 22, 2003, by and among Rurban Financial Corp., a bank
holding company organized under Ohio law having its principal office in
Defiance, Ohio ("Rurban"), RFC Banking Company, an Ohio state-chartered bank and
wholly-owned subsidiary of Rurban having its principal offices in Findlay, Ohio
("Seller"), and First Federal Bank of the Midwest, a federally-chartered savings
bank having its principal offices in Defiance, Ohio ("Buyer"):
W I T N E S S E T H:
WHEREAS, Seller wishes to divest itself of certain assets, deposits and
other liabilities; and
WHEREAS, Buyer wishes to purchase such assets and assume such
liabilities upon the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter set forth, Seller and Buyer agree as follows:
ARTICLE I
THE ASSETS
SECTION 1.1. BRANCHES.
Buyer shall purchase from Seller the "Transferred Assets" (as defined
in Section 2.1 below), and assume certain liabilities of the financial service
offices of Seller located at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ (the "McComb
Branch"); ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ (the "Findlay Branch"); ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ (the "Ottawa Branch"); and ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇ (the "Arcadia Office") (collectively, the "Branches").
ARTICLE II
PURCHASE OF ASSETS AND ASSUMPTION OF LIABILITIES
SECTION 2.1. TRANSFERRED ASSETS.
(a) As of the "Effective Time" (as defined in Section 3.1 below)
and upon the terms and conditions set forth herein, Seller will sell, assign,
transfer, convey and deliver to Buyer, and Buyer will purchase from Seller, the
following assets, except as otherwise excluded from sale pursuant to the
provisions of Section 2.1(b) below (collectively, the "Transferred Assets"):
(1) all of Seller's right, title and interest in and to all real
estate and improvements thereon and fixtures thereto at the
Ottawa Branch and the McComb Branch, together with all rights
and appurtenances pertaining thereto (the "Ottawa and McComb
Real Property");
(2) all of Seller's right, title and interest in and to the
condominium units and improvements thereon and fixtures
thereto at the Findlay Branch, together with all rights and
appurtenances pertaining thereto (the "Findlay Real Property"
and, together with the Ottawa and McComb Real Property, the
"Real Property");
(3) all furniture, equipment and other tangible personal property
located at the Real Property, including any of such items on
order at the Effective Time (collectively, the "Personal
Property");
(4) all "Transferred Loans" (as defined in Section 2.4 below);
(5) all leases for equipment located at the Real Property (the
"Equipment Leases");
(6) all safe deposit boxes located at the Real Property as of the
Effective Time and the safe deposit contracts and leases (the
"Safe Deposit Contracts") related thereto;
(7) all coins and currency located at the Real Property as of the
Effective Time (the "Coins and Currency"); and
(8) all of Seller's rights in and to the names "Peoples Bank" and
"First Bank of Ottawa" and any of Seller's corporate logos,
trademarks, trade names, signs, paper stock forms and other
supplies which contain only such logos, trademarks or trade
names pertaining to "Peoples Bank" and "First Bank of Ottawa";
(b) The following items shall be excluded from the Transferred
Assets (collectively, the "Excluded Assets"):
(1) Seller's rights in and to the names "RFC Banking Company" and
"The Bank" and any of Seller's corporate logos, trademarks,
trade names, signs, paper stock forms and other supplies
containing any such logos, trademarks or trade names;
(2) any and all servicing rights on loans sold by Seller in the
secondary market;
(3) any regulatory licenses or any other nonassignable licenses
and permits;
(4) proprietary software of Seller or any affiliate of Seller;
(5) any assets acquired by Seller by repossession or foreclosure
prior to the Effective Time;
(6) any collateral in the possession of Seller as security for a
loan which is not a Transferred Loan; and
(7) other assets listed on Exhibit 2.1(b)(7) hereto.
Seller shall coordinate with Buyer to remove the Excluded Assets from the Real
Property on or prior to the Effective Time, except as otherwise agreed by Seller
and Buyer. Seller shall remove
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the Excluded Assets at its own cost, and Seller shall repair at its own cost any
damage caused by such removal.
SECTION 2.2. PURCHASE PRICE.
As consideration for the purchase of the Branches:
(a) Buyer shall pay Seller a purchase price equal to the sum of
the following:
(1) the "Net Book Value" (as defined in Section 2.2(d) hereof) of
the Ottawa and McComb Real Property and the Personal Property
as of the Effective Time;
(2) $1,065,000 (an amount equal to the agreed fair market value of
the Findlay Real Property);
(3) a premium for the "Deposit Liabilities" (as defined in Section
2.3(a) hereof) and franchise value assigned to the Branches
equal to (A) 10.5% of the average of the daily balances of the
total Deposit Liabilities, excluding brokered deposits and
certificates of deposit, for the 20 business days ending the
business day before the Closing Date (excluding for such
purpose of calculation the 15 day extension option provided to
Buyer in Section 3.1(a)) plus (B) 10.5% of the total Deposit
Liabilities which are certificates of deposit, excluding
brokered deposits, at the Closing Date (excluding for such
purpose of calculation the 15 day extension option provided to
Buyer in Section 3.1(a)), and LESS (C) $300,000.
(4) the "Net Book Value" (as defined in Section 2.2(d) hereof) of
the Transferred Loans as described in Section 2.4 hereof as of
the Effective Time; and
(5) the face amount of the Coins and Currency.
(b) Buyer shall assume, as of the Effective Time, all of the
duties, obligations and liabilities of Seller relating to the Deposit
Liabilities and to any of the following accruing or arising on or after the
Effective Time: (i) the Real Property; (ii) the Equipment Leases; (iii) the Safe
Deposit Contracts; and (iv) each contract or written agreement listed on Exhibit
2.2(b) hereto. Specifically excluded from the above are:
(1) liabilities or obligations with respect to any litigation,
suits, claims, demands or governmental proceedings arising
from any fact, circumstance or event occurring prior to the
Effective Time and related to the Branches; and
(2) any and all obligations arising under any service agreements
entered into between Seller and its affiliates.
(c) Seller shall prepare a statement (the "Pre-Closing Statement")
in the form attached hereto as Exhibit 3.2(b)(14) using the date which is 30
calendar days prior to the Effective Time anticipated by the parties, instead of
the Effective Time (the "Pre-Closing Statement Date"), as the date for valuing
the assets to be sold and assigned hereunder and the liabilities to be
transferred and assumed hereunder. Seller shall deliver the Pre-Closing
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Statement not less than five days before the Closing Date. Seller agrees to pay
to Buyer at the Closing, in immediately available funds, the net cash due to
Buyer, if any, as reflected by the Pre-Closing Statement. Buyer agrees to pay
Seller at the Closing, in immediately available funds, the net cash due to
Seller, if any, as reflected by the Pre-Closing Statement. The payment by Seller
to Buyer or by Buyer to Seller shall be subject to subsequent adjustment based
on the Post-Closing Statement (as defined in Section 3.3 hereof).
(d) The "Net Book Values" of the Ottawa and McComb Real Property
and the Personal Property are the values at which the relevant assets are
carried on Seller's general ledger and used to compute the values listed on
Seller's balance sheet (net of depreciation) as of the Effective Time. The "Net
Book Value" of the Transferred Loans is the aggregate principal amount of the
Transferred Loans, plus accrued and unpaid interest thereon, as of the Effective
Time, but such value shall not include any loan loss reserves or general
reserve.
(e) Seller and Buyer agree to allocate the purchase price in
accordance with Section 1060 of the Internal Revenue Code of 1986, as amended
(the "Code"). At the Closing, Seller and Buyer shall reduce the allocation to
writing, including jointly and properly executing a draft Internal Revenue
Service Form 8594, subject to post-Closing adjustment to reflect adjustments to
the purchase price as provided in Section 3.3 of this Agreement. Within 90 days
after the Closing Date, Buyer shall provide to Seller a proposed allocation of
the purchase price as finally determined and paid by Buyer hereunder. Within 30
days after the receipt of such allocation, Seller shall propose to Buyer any
changes to such allocation or otherwise shall be deemed to have agreed with such
allocation. Seller and Buyer shall reduce such allocation to writing, including
jointly and properly executing a final, completed Internal Revenue Service Form
8594, and any other forms or statements required by the Code, the treasury
regulations promulgated thereunder or the Internal Revenue Service, together
with any and all attachments required to be filed therewith. Seller and Buyer
shall file timely any such forms and statements with the Internal Revenue
Service. To the extent consistent with applicable law, Seller and Buyer shall
not file any tax return or other documents or otherwise take any position with
respect to taxes which is inconsistent with such allocation of the final
purchase price; PROVIDED, HOWEVER, that neither Seller nor Buyer shall be
obligated to litigate any challenge to such allocation of the final purchase
price by a governmental authority. Seller and Buyer shall promptly inform one
another of any challenge by any governmental authority to any allocation made
pursuant to this Section and agree to consult with and keep one another informed
with respect to the state of, and any discussion, proposal or submission with
respect to, such challenge.
SECTION 2.3. DEPOSIT LIABILITIES.
(a) "Deposit Liabilities" shall mean all of Seller's duties,
obligations and liabilities relating to the deposit accounts of the Branches as
of the Effective Time (including accrued but unpaid or uncredited interest
thereon).
(b) Except for those liabilities and obligations specifically
assumed by Buyer under this Agreement, Buyer is not assuming any other
liabilities or obligations. Liabilities not assumed include, but are not limited
to, the following:
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Seller's cashier checks, money orders, traveler's checks, interest
checks and expense checks issued prior to the Effective Time,
consignments of U.S. Government "E" and "EE" bonds and any cash items
paid by Seller and not cleared prior to the Effective Time.
(c) Seller does not represent or warrant that any deposit
customers whose accounts are assumed by Buyer will continue to be customers of
Buyer after the Effective Time.
(d) Buyer agrees to pay in accordance with law and customary
banking practices all properly drawn and presented checks, drafts and withdrawal
orders presented to Buyer by mail, over the counter or through the check
clearing system of the banking industry, by depositors of the accounts assumed,
whether drawn on the checks, withdrawal order or draft forms provided by Seller
or by Buyer, and in all other respects to discharge, in the usual course of the
banking business, the duties and obligations of Seller with respect to the
balances due and owing to the depositors whose accounts are assumed by Buyer;
provided that Buyer shall not be obligated to honor or pay any item if there are
insufficient funds in the customer's account when presented.
(e) If, after the Effective Time, any depositor, instead of
accepting the obligation of Buyer to pay the Deposit Liabilities assumed, shall
demand payment from Seller for all or any part of any such assumed Deposit
Liabilities, Seller shall not be liable or responsible for making any such
payment; provided, that if Seller shall pay the same, Buyer agrees to reimburse
Seller for any such payment, and Seller shall not be deemed to have made any
representations or warranties to Buyer with respect to any such check, draft or
withdrawal order and any such representations or warranties implied by law are
hereby expressly disclaimed. Seller and Buyer shall make arrangements to provide
for the daily settlement with immediately available funds by Buyer of checks,
drafts, withdrawal orders, returns and other items presented to and paid by
Seller within 60 calendar days after the Effective Time and drawn on or
chargeable to accounts that have been assumed by Buyer; PROVIDED, HOWEVER, that
Seller shall be held harmless and indemnified by Buyer for acting in accordance
with such arrangements.
(f) Buyer agrees, at its cost and expense, (i) to notify such
depositors, on or before the Effective Time, in a form and on a date mutually
acceptable to Seller and Buyer, of Buyer's assumption of Deposit Liabilities,
(ii) to furnish such depositors with checks on the forms of Buyer and with
instructions to utilize Buyer's checks and to destroy unused check, draft and
withdrawal order forms of Seller (if Buyer so elects, Buyer may offer to buy
from such depositors their unused Seller check, draft and withdrawal order
forms), (iii) to reissue all automated teller machine and debit cards associated
with the assumed Deposit Liabilities, (iv) to replace all line of credit checks
with checks on the forms of Buyer with instructions to utilize Buyer's checks
and to destroy the unused checks of Seller and (v) to disable and to notify
customers of its disabling of all credit card overdraft protection or notify the
customers of alternative overdraft protection through a different credit card or
line of credit. At its expense, Seller will prepare and deliver to Buyer two
sets of its normal customer mailing labels relating to the Deposit Liabilities.
In addition, subsequent to regulatory approval, Seller will notify its affected
customers by letter of the pending assignment of Seller's Deposit Liabilities to
Buyer, which notice shall be at Seller's cost and expense and shall be in a form
and on a date mutually agreeable to Seller and Buyer.
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(g) Buyer agrees to pay promptly to Seller an amount equivalent to
the amount of any checks, drafts or withdrawal orders credited to any assumed
Deposit Liabilities as of the Effective Time that are returned to Seller after
the Effective Time.
(h) As of the Effective Time, Buyer will assume and discharge
Seller's duties and obligations in accordance with the terms and conditions and
laws, rules and regulations that apply to the Deposit Liabilities assumed under
this Agreement.
(i) As of the Effective Time, Buyer will maintain and safeguard in
accordance with applicable law and sound banking practices all account
documents, deposit contracts, signature cards, deposit slips, canceled items and
other records related to the Deposit Liabilities assumed under this Agreement,
subject to Seller's right of access to such records as provided in this
Agreement.
(j) Seller will render a final statement to each depositor of an
account assumed under this Agreement as to transactions occurring through the
Effective Time and will comply with all laws, rules and regulations regarding
tax reporting of transactions of such accounts through the Effective Time.
Seller will be entitled to impose normal fees and service charges on a per-item
basis, but Seller will not impose periodic fees or blanket charges in connection
with such final statements. Buyer will comply with all laws, rules and
regulations regarding tax reporting of transactions of such accounts after the
Effective Time.
(k) As soon as practicable following the Closing Date, Buyer, at
its expense, will notify all Automated Clearing House ("ACH") originators of the
transfers and assumptions made pursuant to the Agreement; PROVIDED, HOWEVER,
that, prior to the Closing Date, Seller shall provide Buyer with all information
necessary to make such notifications and, provided further, that, at Buyer's
request, Seller will notify all such originators (on behalf of Buyer) also at
the expense of Buyer. For a period of 60 calendar days beginning on the
Effective Time, Seller will honor all ACH items related to accounts assumed
under this Agreement which are mistakenly routed or presented to Seller. Seller
will make no charge to Buyer for honoring such items, and will electronically
transmit such ACH data to Buyer. If Buyer cannot receive an electronic
transmission, Seller will make available to Buyer at Seller's operations center
receiving items from the ACH tapes containing such ACH data. Items mistakenly
routed or presented after the 60-day period will be returned to the presenting
party. Seller and Buyer shall make arrangements to provide for the daily
settlement with immediately available funds by Buyer of any ACH items honored by
Seller, and Seller shall be held harmless and indemnified by Buyer for acting in
accordance with this arrangement to accept ACH items.
(l) For a period of 60 calendar days beginning on the Effective
Time, Buyer will use reasonable efforts consistent with its normal business
practices to collect from Buyer's customers amounts equal to any Visa or
MasterCard charge backs under the MasterCard and Visa Merchant Agreements
between Seller and its customers or amounts equal to any deposit items returned
to Seller after the Effective Time which were honored by Seller prior to the
Effective Time and remit such amounts so collected to Seller. To the extent
permitted under applicable law, Buyer agrees that for a period of 60 calendar
days beginning on the Effective Time, Buyer will promptly freeze and remit to
Seller any funds, up to the amount of the charged back or returned item that had
been previously credited by Seller, if such funds are available in the account
to
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which such item had previously been credited at the time of notification by
Seller to Buyer of the charged back or returned item. Notwithstanding the
foregoing, Buyer shall have no duty to remit funds for any item or charge that
has been improperly returned or charged to Seller. Solely for the purposes of
this Section 2.3(l), all references to Seller shall be deemed to include Seller
and its assignees.
(m) As of the Effective Time, Seller shall transfer, assign and
deliver to Buyer all files, documents and records related to the Deposit
Liabilities, including such information held in electronic form, and Buyer will
be responsible for maintaining and safeguarding all such materials in accordance
with applicable law and sound banking practices.
SECTION 2.4. TRANSFERRED LOANS.
(a) Seller will transfer to Buyer as of the Effective Time,
subject to the terms and conditions of this Agreement, all of Seller's right,
title and interest in (including accrued but unpaid interest and late charges
and collateral relating thereto) the loans identified on Exhibit 2.4(a) hereto
and loans originated at the Branches by Seller after the date of this Agreement
in accordance with Section 7.9 ("Transferred Loans"). The following shall be
adjustments to the Transferred Loans:
(1) up until fourteen (14) calendar days before the Closing Date,
Buyer may (A) remove loans from Transferred Loans (and thereby
make such loans retained by Seller (the "Retained Loans")) so
long as the aggregate Net Book Value of the Retained Loans
(the "Retained Loan Difference") does not exceed Four Million
Five Hundred Thousand Dollars ($4,500,000), or (B) include as
Transferred Loans under this Agreement additional loans ("New
Loans") from the pool of Seller loans that originally were not
made available for purchase and Buyer may add loans to the
loans retained by Seller in an amount that is not greater than
the Net Book Value of the New Loans to be included as
Transferred Loans (for the purpose of this Section any loan
shall be valued at its Net Book Value as of 14 calendar days
before the Closing Date);
(2) loans with respect to which foreclosure proceedings have been
filed prior to the Effective Time shall be excluded from
Transferred Loans;
(3) any and all servicing rights on loans sold by Seller in the
secondary market shall be excluded from Transferred Loans; and
(4) the loans described on Exhibit 2.4(a)(4), unless the
conditions to be satisfied by Seller with respect to each such
loan as stated on such exhibit are satisfied by Seller, shall
be excluded from Transferred Loans.
The Transferred Loans (as well as any lien or security interest related thereto)
shall be transferred by means of a blanket (collective) assignment and not
individually (except as may be otherwise required by law or by the policies and
procedures of the office of the recorder in the counties in which the mortgages
securing Transferred Loans are recorded).
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(b) Seller and Buyer agree that Buyer will become the beneficiary
of credit life insurance written on direct consumer installment loans included
in the Transferred Loans and coverage will continue to be the obligation of the
current insurer after the Effective Time and for the duration of such insurance
as provided under the terms of the policy or certificate. Seller agrees to use
commercially reasonable efforts to assign such policies and certificates to
Buyer, and Seller and Buyer agree to cooperate in good faith to develop a
mutually satisfactory method by which the current insurer will make rebate
payments to and satisfy claims of the holders of such certificates of insurance
after the Effective Time. After the Effective Time, Seller will promptly deliver
to Buyer the proceeds of any credit life insurance received by it and that
relates to Transferred Loans. The parties' obligations under this Section 2.4(b)
are subject to any restrictions contained in existing insurance contracts as
well as applicable laws and regulations.
(c) In connection with the transfer of any Transferred Loans
requiring notice to the borrower, servicer and/or guarantor, Buyer and Seller
will comply with all notice and reporting requirements of the documents
associated with the Transferred Loans or of any law or regulation.
(d) Except as expressly set forth in this Agreement, all
Transferred Loans will be transferred without recourse and without any
warranties or representations whatsoever.
(e) Buyer will at its expense issue new coupon books or other
forms of payment identification for payment of Transferred Loans for which
Seller provides coupon books with instructions to utilize Buyer's coupons or
forms and to destroy coupons furnished by Seller.
(f) For a period of 60 calendar days after the Effective Time,
Seller will forward to Buyer payments received by Seller in respect of the
Transferred Loans. Seller shall have the right to return to the borrower any
payments received by it subsequent to 60 days after the Effective Time. Seller
shall promptly notify Buyer of any such payments. Buyer shall reimburse Seller
for checks returned on payments forwarded to Buyer.
(g) As of the Effective Time, Seller shall transfer, assign and
deliver to Buyer all files, documents and records related to the Transferred
Loans, including such information held in electronic form, and Buyer will be
responsible for maintaining and safeguarding all such materials in accordance
with applicable law and sound banking practices.
(h) If a payment by check on a Transferred Loan received prior to
the Effective Time is returned after the Effective Time, the check shall be
delivered to Buyer and Buyer shall promptly remit to Seller the amount
represented by such check.
(i) Seller shall grant to Buyer as of the Effective Time a limited
power of attorney, in substantially the form attached hereto as Exhibit 2.4(i)
(the "Power of Attorney").
SECTION 2.5. SAFE DEPOSIT BUSINESS.
(a) As of the Effective Time, Buyer will assume and discharge
Seller's obligations with respect to the safe deposit box business at the Real
Property in accordance with the terms and conditions of contracts or rental
agreements related to such business, and Buyer will
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maintain all facilities necessary for the use of such safe deposit boxes by
persons entitled to use them.
(b) As of the Effective Time, Seller shall transfer, assign and
deliver to Buyer the records related to such safe deposit box business, and
Buyer shall maintain and safeguard all such records and be responsible for
granting access to and protecting the contents of safe deposit boxes at the Real
Property.
(c) Safe deposit box rental payments collected by Seller before
the Effective Time shall be prorated as of the Effective Time.
SECTION 2.6. EMPLOYEE MATTERS.
(a) Buyer may offer employment to those employees of Seller listed
on Exhibit 2.6(a) hereof (the "Employees"), subject to Buyer's standard hiring
procedures, including, but not limited to, drug testing. Buyer will be afforded
an opportunity to meet with and interview the Employees following execution of
this Agreement; however, Buyer shall not extend any offers of employment or
otherwise announce or notify the Employees of Buyer's intentions regarding the
Employees who will be offered employment by Buyer until after receipt of all
necessary regulatory approvals of the transactions contemplated by this
Agreement. The base salary for each Employee who receives an offer of employment
from Buyer and accepts such offer (the "Hired Employees") shall not be less than
the base salary provided by Seller immediately prior to the Effective Time,
subject to changes due to employment classification. With respect to Buyer's
qualified plans, the Hired Employees will be treated as new hires; however,
Hired Employees will immediately participate in welfare benefit plans maintained
by Buyer without regard to pre-existing conditions or waiting periods, if and to
the extent that such employees are participating in Seller's welfare benefit
plans immediately prior to the Closing Date. Hired Employees will be required to
satisfy the deductible and employee payments (if any) required by Buyer's plans.
Hired Employees shall receive full credit for prior service with Seller for
purposes of determining their eligibility and vesting (but not the accrual of
any benefit) under Buyer's employee benefit plans. Hired Employees will be
eligible for severance benefits consistent with Buyer's severance policies or
plans, provided that all service with the Seller shall be taken into account in
determining benefits under Buyer's severance policies or plans. Buyer shall not
be responsible or liable for any benefits accrued under the pension or welfare
plans of Seller. Buyer will assume and be responsible for any and all accrued
but not paid vacation for Hired Employees for January 1, 2003 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 Employees will remain
employed at the Branches after the Effective Time. Seller will use commercially
reasonable efforts to: (i) maintain the Employees as employees of Seller at the
Branches until the Effective Time, (ii) refrain from dissuading any Employee
from accepting an offer of employment with Buyer or (iii) refrain from
recruiting Employees for alternate positions with Seller or any of Seller's
affiliates; PROVIDED, HOWEVER, that nothing in this Section 2.6(b) shall prevent
Seller or any of its affiliates from hiring, transferring or reassigning any
Employee who has applied or posted for an opening with Seller or any of Seller's
affiliates after the date of this Agreement. Seller shall advise Employees that
their
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current positions will terminate as of the Effective Time. Any Employee
whose employment shall be terminated for any reason prior to the Effective Time
shall be dealt with by Seller in its sole and absolute discretion, provided,
however, that Seller shall notify Buyer of any such terminations. Any Employee
who, for any reason, elects not to accept Buyer's offer of employment shall be
deemed to be part of Seller's pool of unassigned employees and may, after the
Effective Time, be assigned to any openings of Seller or Seller's affiliates or
be terminated by Seller. Seller shall be responsible for any severance owed to
an Employee who is terminated by Seller.
(c) Except as instructed by any Hired Employee consistent with
Seller's customary policies and practices, Seller will not make any transfer of
pension or other employee benefit plan assets to Buyer.
(d) Seller and Buyer each with respect to its respective plans,
programs and policies described in this Section 2.6 shall give any notices
required by applicable law and take whatever other actions as may be necessary
to carry out the arrangements described in this Section 2.6.
(e) If any of the arrangements described in this Section 2.6 are
determined by the Internal Revenue Service or any other governmental authority
to be prohibited by law, Seller and Buyer 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.
(f) Except as set forth in Section 2.6(c) above, Buyer 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).
(g) Seller shall not have any liability with respect to any Hired
Employee or other employee, contractor or service provider of or for Buyer
arising out of or relating to any services provided to Buyer.
SECTION 2.7. RECORDS AND DATA PROCESSING, ETC.
(a) As of the Effective Time, Buyer shall become responsible for
maintaining the files, documents and records referred to in this Agreement.
Buyer will preserve and hold them in safekeeping as required by applicable law
and sound banking practice. After the Effective Time, Buyer will permit Seller
and its representatives, for reasonable cause, at reasonable times and upon
reasonable notice, to examine, inspect, copy and reproduce any such files,
documents or records as Seller deems reasonably necessary and to have similar
access to such records and Seller's former employees for purposes of preparation
of records and reports (including regulatory and tax reports and returns) and as
Seller requires in connection with third party litigation.
(b) As of the Effective Time, Seller will permit Buyer and its
representatives, for reasonable cause, at reasonable times and upon reasonable
notice, to examine, inspect, copy and
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reproduce files, documents or records retained by Seller regarding the assets
and liabilities transferred under this Agreement as Buyer deems reasonably
necessary.
(c) For a period of 90 days after the Effective Time, the party
providing copies of records shall do so without charge; thereafter, it may
charge its customary rate for such copies.
(d) It is understood that certain of Seller's records, including
certificates of deposit, may be available only in electronic form or in the form
of photocopies, film copies or other non-original and non-paper media.
(e) After the execution of this Agreement, Seller will work with
Buyer to prepare mutually satisfactory schedules of Transferred Assets and
contracts to be sold hereunder.
SECTION 2.8. SECURITY AND INSURANCE.
As of the Effective Time, Buyer shall be solely responsible for the
security of and insurance on all persons and property located in or about the
Real Property.
SECTION 2.9. TAXES AND FEES; PRORATION OF CERTAIN EXPENSES.
(a) Buyer shall not be responsible for, or have any liability with
respect to, taxes on any income to Seller arising out of this transaction. Buyer
shall not be responsible for any income tax liability of Seller arising from the
Deposit Liabilities, the Transferred Assets or the business or operations of the
Branches before the Effective Time, and Seller shall not be responsible for any
tax liabilities of Buyer arising from the Deposit Liabilities, the Transferred
Assets or the business or operations of the Branches after the Effective Time.
Utility payments, telephone charges, real property taxes, non-delinquent
assessments, personal property taxes, lease payments, salaries, deposit
insurance premiums or assessments, maintenance items, other ordinary operating
expenses of the Branches and other expenses related to the liabilities assumed
or assets purchased hereunder shall be prorated between the parties as of the
Effective Time. To the extent any such item has been prepaid by Seller for a
period extending beyond the Effective Time, there shall be a proportionate
monetary adjustment in favor of Seller. Real estate taxes shall be prorated on a
calendar year basis, based upon the current valuation, maximum allowable
discount and other applicable exemptions. Prior to the Effective Time, Seller
will pay all real property taxes due and payable prior to the Effective Time.
The real property tax proration as of the Effective Time shall be final.
(b) Seller and Buyer shall each be responsible for their own costs
with respect to the preparation and filing of any tax returns and, except as
otherwise provided in Section 3.3(b), the preparation, review and analysis of
the allocation statements and any forms or statements prepared in connection
with the allocation of the final purchase price.
SECTION 2.10. TITLE TO REAL PROPERTY.
(a) Seller agrees to deliver to Buyer within ten (10) days after
execution of this Agreement, 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
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relating to the Real Property. Such delivery shall constitute no warranty by
Seller as to the accuracy or completeness thereof or that Buyer is entitled to
rely thereon.
(b) Buyer shall have the right to obtain, at Buyer's sole cost and
expense:
(1) a title insurance commitment from a title insurance company
selected by Buyer and an owner's policy of title insurance
insuring Buyer's title to the Real Property and related
easements and rights appurtenant thereto; and
(2) a survey as is required by the title insurer to remove the
survey exception in the title insurance policy, to be
conducted by a surveyor selected by Buyer.
(c) Buyer 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
(excluding legal but nonconforming uses) or material engineering or structural
problems related to the Real Property to which Buyer reasonably objects (the
"Title Defects"). If Buyer does not notify Seller of Title Defects within such
time period, Buyer shall be deemed to have waived its rights under this Section
2.10. Buyer agrees that Title Defects shall not include real property taxes not
yet due and payable, legal highways, zoning ordinances, easements, restrictions,
tenancies, survey matters, and rights of way which do not materially interfere
with the use of the Real Property as such facility is currently utilized
("Permitted Encumbrances"; the term "Permitted Encumbrances" shall also include
any title defects, deficiencies, exceptions or encumbrances to which Buyer fails
to object within said 45-day period, or to which Buyer objects within said
45-day period but which Seller does not correct and which Buyer accepts in
writing.) For a period of 30 days after Seller's receipt of such notice of Title
Defects from Buyer, Seller shall make a good faith effort to correct any such
Title Defect to Buyer's reasonable satisfaction; PROVIDED, HOWEVER, that Seller
shall not be obligated to bring any lawsuit or make any payments of money
(except payments to pay liens that Seller does not dispute in good faith) to
cure a Title Defect. If Seller is unable or, as to Title Defects that Seller is
not obligated to cure pursuant to the proviso contained in the preceding
sentence, unwilling to cure any such Title Defect to Buyer's reasonable
satisfaction, Buyer shall have the option either to receive title in its then
existing condition or to terminate this Agreement upon written notice to Seller
(subject to Seller's option to lease the Branch affected by the Title Defect to
Buyer pursuant to Section 2.10(e)). Upon termination of this Agreement pursuant
to this Section 2.10(c), neither party shall have any further liability to the
other party under this Agreement.
(d) Buyer 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 Buyer's original title search, and Buyer reasonably objects thereto
in writing, then Seller shall make a good faith effort to cure any such Title
Defect to Buyer's reasonable satisfaction; provided that Seller shall not be
obligated to bring any lawsuit or make any payments of money (except payments to
pay liens that Seller does not dispute in good faith) to cure a Title Defect. If
Seller is unable or, as to Title Defects that Seller is not obligated to cure
pursuant to the proviso contained in the preceding sentence, unwilling to cure
any such Title Defect, Buyer shall have the option to receive title in its then
existing condition or
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to terminate this Agreement upon written notice to Seller (subject to Seller's
option to lease the Branch affected by the Title Defect to Buyer pursuant to
Section 2.10(e)). Upon termination of this Agreement pursuant to this Section
2.10(d), neither party shall have any further liability to the other party under
this Agreement.
(e) In the event Buyer notifies Seller of its intent under this
Section 2.10 to terminate this Agreement due to an unacceptable Title Defect,
Seller may elect to lease the Branch affected by the Title Defect to Buyer at a
reasonable rent, based on a valuation of the Branch at its purchase price under
Section 2.2(a) of this Agreement, for a term of five years, in which event Buyer
will have no right to terminate this Agreement. If Buyer leases any Branch under
this Section 2.10(e) and if, following the Closing and at any time during the
term of such lease, Seller cures the unacceptable Title Defect, Seller shall
promptly sell and convey the Branch to Buyer, upon the terms specified in this
Agreement (provided, however, for this purpose, Net Book Value and appropriate
expense and tax prorations shall be computed as of the actual conveyance date),
whereupon such lease shall terminate.
SECTION 2.11. ENVIRONMENTAL MATTERS.
(a) Seller agrees to deliver to Buyer as soon as reasonably
possible, upon Buyer's request, copies of all environmental studies, reports and
audits in Seller's possession related to the Real Property.
(b) Buyer shall have the right, but not the obligation, at its
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 Real Property.
Seller shall provide reasonable assistance to Buyer and/or its agents or
contractors in their evaluation and testing of the Real Property, and Seller
shall provide Buyer and/or its agents or contractors access to pertinent records
and documents. Seller authorizes Buyer and/or its agents or contractors to
contact governmental agencies regarding the environmental status of the Real
Property. Buyer shall report the results of any such investigations or tests to
Seller no later than 45 calendar days after the date of this Agreement;
PROVIDED, HOWEVER, that without the prior written consent of Seller, which
consent will not unreasonably be withheld, and execution of a reasonable
property access agreement, Buyer shall not conduct subsurface testing, any
ground water monitoring or install any test well or undertake any other
investigation which requires a permit or license from, or the reporting of the
investigation or the results thereof to, a local or state environmental
regulatory authority or the United States Environmental Protection Agency. If
Buyer objects to any material adverse environmental condition which impacts the
Branches, Seller shall have the right, but not the obligation, to cure any such
material adverse environmental condition which is discovered by Buyer's
investigation. If Seller is unable or unwilling to cure such problem within 30
days of Seller's receipt of Buyer's report, Buyer shall have the option to
accept the premises in its then existing condition or to terminate this
Agreement upon written notice to Seller. Upon termination of this Agreement
pursuant to this Section 2.11(b), neither party shall have any further liability
to the other under this Agreement.
SECTION 2.12. FACILITATING LOAN BY BUYER. At the Closing, Buyer shall
make a loan to Seller in an amount equal to the amount of the Retained Loan
Difference (the "Facilitating
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Loan"). The terms and conditions of the Facilitating Loan shall be as set forth
on Exhibit 2.12 hereto.
ARTICLE III
CLOSING AND EFFECTIVE TIME
SECTION 3.1. EFFECTIVE TIME.
(a) The purchase of assets and assumption of liabilities provided
for in this Agreement shall occur at a closing (the "Closing") to be held at the
main offices of Seller in Findlay, Ohio, at 10:00 a.m., local time, on a date
designated by Seller or at such other time and place as the parties shall
mutually agree in writing, which date shall not be before the receipt of all
necessary approvals by regulatory agencies and the expiration of all statutory
waiting periods, nor later than 30 days after the receipt of all necessary
approvals by regulatory agencies and the expiration of all statutory waiting
periods; provided, however, that Buyer may extend the date of Closing for up to
15 days in order to facilitate data processing conversion. The effective time
(the "Effective Time") shall be the closing time at the last of the Branches to
close on the day on which the Closing occurs (the "Closing Date") or such other
time as the parties shall agree in writing.
(b) Seller and Buyer may agree to conduct the Closing by
exchanging executed and original documents by overnight courier service for
delivery on the Closing Date. In this case, all Closing documents shall be held
in escrow by the parties' counsel pending their receipt of confirmation that all
Closing documents have been received and are satisfactory, respectively, and
that the parties' wire transfer(s) of funds required under this Agreement have
been received and credited to their designated account(s). Upon the parties'
receipt of such confirmation(s), respectively, such Closing documents shall be
released from escrow by such counsel and the Closing shall be deemed to have
been consummated.
SECTION 3.2. CLOSING.
(a) All actions taken and documents delivered at the Closing shall
be deemed to have been taken and executed and delivered simultaneously, and no
action shall be deemed taken nor any document delivered until all have been
taken and delivered.
(b) At the Closing, subject to all the terms and conditions of
this Agreement, Seller shall execute and deliver to Buyer:
(1) limited warranty deeds in recordable form executed by Seller
transferring Seller's title to the Real Property, subject to
the Permitted Encumbrances and any other such matters that are
shown on the title commitment to be provided to Buyer
hereunder, to Buyer in substantially the form attached hereto
as Exhibit 3.2(b)(1);
(2) a ▇▇▇▇ of Sale, in substantially the form attached hereto as
Exhibit 3.2(b)(2) (the "▇▇▇▇ of Sale"), transferring to Buyer
all of Seller's interest in the Personal Property and the
Transferred Loans;
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(3) an Assignment and Assumption Agreement in substantially the
form attached hereto as Exhibit 3.2(b)(3) (the "Assignment and
Assumption Agreement"), assigning Seller's interest in the
Deposit Liabilities, the Equipment Leases and the Safe Deposit
Contracts;
(4) a promissory note and other documentation reasonably required
by Buyer in connection with the Facilitating Loan;
(5) consents from third persons that are required to effect the
assignments set forth in the Assignment and Assumption
Agreement;
(6) Seller's files and records related to the Transferred Loans;
(7) Seller's records related to the Deposit Liabilities assumed by
Buyer;
(8) immediately available funds in the net amount shown as owing
to Buyer by Seller on the Pre-Closing Statement, if any;
(9) the Coins and Currency;
(10) Seller's keys to the safe deposit boxes and Seller's records
related to the safe deposit box business at the Branches;
(11) such of the other Transferred Assets as shall be capable of
physical delivery;
(12) a certificate of a proper officer of Seller, dated as of the
Closing Date, certifying to the fulfillment of all conditions
which are the obligation of Seller and that all of the
representations and warranties of Seller set forth in this
Agreement remain true and correct in all material respects as
of Effective Time;
(13) a copy of resolutions of the Board of Directors and the sole
shareholder of Seller approving the sale contemplated herein;
(14) the Pre-Closing Statement;
(15) the Power of Attorney;
(16) such certificates and other documents as Buyer and its counsel
may reasonably require to evidence receipt by Seller of all
necessary regulatory authorizations and approvals for the
consummation of the transactions provided for in this
Agreement;
(17) an affidavit of Seller certifying that Seller is not a
"foreign person" as defined in the federal Foreign Investment
in Real Property Tax Act of 1980;
(18) 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); and
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(19) the draft Internal Revenue Service Form 8594 required by
Section 2.2(e) hereof.
It is understood that the items listed in items (6), (7), (9), (10) and (11)
that relate to the ▇▇▇▇▇▇ Branch, Findlay Branch and Ottawa Branch shall be
delivered by surrendering occupancy of the Real Property as soon as the Branches
have closed for business on the Closing Date.
(c) At the Closing, subject to all the terms and conditions of
this Agreement, Buyer shall execute and deliver to Seller:
(1) the Assignment and Assumption Agreement;
(2) the proceeds of the Facilitating Loan;
(3) a certificate and receipt acknowledging the delivery and
receipt of possession of the Transferred Assets and records
referred to in this Agreement;
(4) immediately available funds in the net amount shown as owing
to Seller by Buyer on the Pre-Closing Statement, if any;
(5) a certificate of a proper officer of Buyer, dated as of the
Closing Date, certifying to the fulfillment of all conditions
which are the obligation of Buyer and that all of the
representations and warranties of Buyer set forth in this
Agreement remain true and correct in all material respects as
of the Effective Time;
(6) a copy of a resolution of the Board of Directors of Buyer
approving the purchase contemplated herein;
(7) such certificates and other documents as Seller and its
counsel may reasonably require to evidence the receipt by
Buyer of all necessary regulatory authorizations and approvals
for the consummation of the transactions provided for in this
Agreement; and
(8) the draft Internal Revenue Service Form 8594 required by
Section 2.2(e) hereof.
(d) All instruments, agreements and certificates described in this
Section 3.2 shall be in form and substance reasonably satisfactory to the
parties' respective legal counsel.
SECTION 3.3. POST-CLOSING ADJUSTMENTS.
(a) Not later than 30 days after the Effective Time (the
"Post-Closing Statement Delivery Date"), Seller shall deliver to Buyer a
statement dated as of the Effective Time reflecting the assets sold and assigned
and the liabilities transferred and assumed hereunder (the "Post-Closing
Statement"), including, but not limited to, the specific items described in
Section 2.2(a)(1) through (5) above, as adjusted, together with a copy of
Seller's calculation of the adjusted purchase price and amounts payable
thereunder. Additionally, not later than five (5) days after the Effective Time,
Seller shall deliver to Buyer a final list of the Transferred Loans purchased,
individually identified by account number. Seller shall afford Buyer and its
accountants and attorneys the opportunity to review all work papers and
documentation used by
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Seller in preparing the Post-Closing Statement. Within 15 days following the
Post-Closing Statement Delivery Date (the "Adjustment Payment Date"), Seller and
Buyer shall effect the transfer of any funds as may be necessary to reflect
changes between the Pre-Closing Statement and the Post-Closing Statement and
resulting changes in the purchase price, together with interest thereon computed
from the Effective Time to the Adjustment Payment Date at the applicable Federal
Funds Rate (as hereinafter defined).
(b) In the event that a dispute arises as to the appropriate
amounts to be paid to either party on the Adjustment Payment Date, each party
shall pay to the other on such Adjustment Payment Date all amounts other than
those as to which a dispute exists, and the disputed amounts shall be submitted
to ▇▇▇▇▇▇▇, Hills & ▇▇▇▇▇▇▇▇▇▇ Limited, Toledo, Ohio or other mutually
acceptable independent certified public accountant (the "Neutral Auditor")
within ten (10) days after the Adjustment Payment Date. Each party hereto agrees
to execute, if requested by the Neutral Auditor, a reasonable engagement letter.
All fees and expenses relating to the work, if any, to be performed by the
Neutral Auditor shall be borne PRO RATA by Seller and Buyer in proportion to the
allocation of the dollar amount of the disputed amounts between Buyer and Seller
made by the Neutral Auditor such that the party with whom the Neutral Auditor,
in the aggregate, agrees more closely pays a lesser proportion of the fees and
expenses. The Neutral Auditor shall act as an arbitrator to determine, based
solely on the provisions of this Section 3.3 and the presentations by Seller and
Buyer, and not by independent review, only the resolution of the disputed
amounts. The Neutral Auditor's resolution of such disputed amounts, which for
each of the disputed amounts shall be within the range of values of the amount
claimed by either party as to any of the disputed amounts, shall be made within
thirty (30) days of the submission of the disputed amounts thereto, shall be set
forth in a written statement delivered to Seller and Buyer and shall be deemed
to be mutually agreed upon by Buyer and Seller for all purposes of this
Agreement. Any disputed amounts retained by a party which are later found to be
due to the other party by the Neutral Auditor shall be paid to such other party
promptly with interest thereon from the Effective Time to the date paid at the
applicable Federal Funds Rate.
(c) The Federal Funds Rate shall mean, for any period, a
fluctuating interest rate per annum equal for each day during such period to the
weighted average of the rates on overnight federal funds by federal funds
brokers, as published for such day (or if such day is not a business day, for
the next preceding business day) by the Federal Reserve Bank of New York.
ARTICLE IV
INDEMNIFICATION
SECTION 4.1. SELLER'S INDEMNIFICATION OF BUYER.
Subject to any limitations contained in this Agreement, Rurban shall
indemnify, hold harmless and defend Buyer from and against (a) any breach by
Seller of any representation, warranty or covenant of Seller contained herein,
and (b) all claims, losses, liabilities, demands and obligations, including
reasonable attorneys' fees and expenses, arising out of any acts or omissions of
Seller prior to the Effective Time (other than proceedings to prevent or limit
the consummation of this transaction) relating to Seller's operations at the
Branches; and, except as otherwise provided in this Agreement, Seller shall
further indemnify, hold harmless, and defend
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Buyer from and against all claims, losses, liabilities, demands and obligations,
including reasonable attorneys' fees and expenses, real estate taxes,
intangibles and franchise taxes, sales and use taxes, social security and
unemployment taxes, all accounts payable, and operating expenses (including
salaries, rents and utility charges) incurred by Seller, prior to the Effective
Time and which are claimed or demanded on or after the Effective Time, or which
arise out of any actions, suits or proceedings commenced on or after the
Effective Time and which relate to Seller's operations or transactions at the
Branches prior to the Effective Time.
SECTION 4.2. BUYER'S INDEMNIFICATION OF SELLER.
Buyer shall indemnify, hold harmless, and defend Seller from and
against (a) any breach by Buyer of any representation, warranty or covenant of
Buyer contained herein and (b) all claims, losses, liabilities, demands and
obligations, including reasonable attorneys' fees and expenses, real estate
taxes, intangibles and franchise taxes, sales and use taxes, social security and
unemployment taxes, all accounts payable, and operating expenses (including
salaries, rents and utility charges), which relate to Buyer's acts or omissions
after the Effective Time and which involve the Transferred Assets or the
liabilities assumed by Buyer pursuant to this Agreement.
SECTION 4.3. CLAIMS FOR INDEMNITY.
(a) A claim for indemnity under Section 4.1 or 4.2 of this
Agreement may be made by the claiming party at any time prior to 18 months after
the Effective Time, by the giving of written notice thereof to the other party.
Such written notice shall set forth in reasonable detail the basis upon which
such claim for indemnity is made. In the event that any such claim is made
within the prescribed period, the indemnity relating to such claim shall survive
until such claim is resolved. Claims not made within such period shall cease and
no indemnity shall be made therefor.
(b) In the event that any person or entity not a party to this
Agreement shall make any demand or claim or file or threaten to file any
lawsuit, which demand, claim or lawsuit may result in any liability, damage or
loss to one party hereto of the kind for which such party is entitled to
indemnification pursuant to Section 4.1 or 4.2 hereof, then, after written
notice is provided by the indemnified party to the indemnifying party of such
demand, claim or lawsuit, the indemnifying party shall have the option, at its
cost and expense, to retain counsel for the indemnified party to defend any such
demand, claim or lawsuit. In the event that the indemnifying party shall fail to
respond within seven (7) calendar days after receipt of such notice of any such
demand, claim or lawsuit, then the indemnified party may retain counsel and
conduct the defense of such demand, claim or lawsuit as it may in its discretion
deem proper, at the cost and expense of the indemnifying party. In effecting the
settlement of any such demand, claim or lawsuit, an indemnified party shall act
in good faith, shall consult with the indemnifying party and shall enter into
only such settlement as the indemnifying party shall approve (the indemnifying
party's approval will be implied if it does not respond within ten calendar days
of its receipt of the notice of such settlement offer).
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SECTION 4.4. LIMITATIONS ON INDEMNIFICATION.
Notwithstanding anything to the contrary contained in this Article IV,
no indemnification shall be required to be made by either party until the
aggregate amount of all such claims by a party exceeds $50,000; PROVIDED,
HOWEVER, that such limitation shall not apply to Buyer's or Seller's failure to
pay the consideration due under Section 2.2 or Section 3.3. Once such aggregate
amount exceeds $50,000, such party shall thereupon be entitled to
indemnification for all amounts in excess of such $50,000. IN ADDITION, THE
PARTIES SHALL HAVE NO OBLIGATIONS UNDER THIS ARTICLE IV FOR ANY CONSEQUENTIAL
LIABILITY, DAMAGE OR LOSS THE INDEMNIFIED PARTY MAY SUFFER AS THE RESULT OF ANY
DEMAND, CLAIM OR LAWSUIT.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF SELLER
Except as otherwise disclosed in the particular Sections of this
Article V, Seller hereby represents and warrants to Buyer as follows:
SECTION 5.1. CORPORATE ORGANIZATION.
Seller is an Ohio state-chartered bank duly organized, validly existing
and in good standing under the laws of the State of Ohio. Seller has the
corporate power and authority to carry on its business as currently conducted
and to effect the transactions contemplated herein.
SECTION 5.2. NO VIOLATION.
Neither the execution and delivery of this Agreement, nor the
consummation of the transactions contemplated herein, will violate or conflict
with (i) Seller's articles or regulations; (ii) any material provision of any
material agreement or any other material restriction of any kind to which Seller
is a party or by which Seller is bound; (iii) any material statute, law, decree,
regulation or order of any governmental authority; or (iv) any material
provision which will result in a default under, or cause the acceleration of the
maturity of, any material obligation or loan to which Seller is a party.
SECTION 5.3. CORPORATE AUTHORITY.
The consummation of the transactions contemplated herein have been duly
authorized by the Board of Directors and the sole shareholder of Seller. No
further corporate authorization is necessary for Seller to consummate the
transactions contemplated hereunder.
SECTION 5.4. ENFORCEABLE AGREEMENT.
This Agreement has been duly executed and delivered by Seller and is
the legal, valid and binding agreement of Seller, enforceable in accordance with
its terms.
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SECTION 5.5. NO BROKERS.
All negotiations relative to this Agreement and the transactions
contemplated hereby have been carried on by Seller and Buyer, and there has been
no participation or intervention by any other person, firm or corporation
employed or engaged by or on behalf of Seller in such a manner as to give rise
to any valid claim against Seller or Buyer for a brokerage commission, finder's
fee or like commission, except for Austin Associates, LLC.
SECTION 5.6. PERSONAL PROPERTY.
Seller owns, and will convey to Buyer at the Closing, all of Seller's
right, title, and interest to all of the Personal Property free and clear of any
mortgages, liens, security interests, pledges or other encumbrances. Such items
are in good working order other than items that are not material or items that
do not, in the aggregate, exceed $10,000 in value.
SECTION 5.7. REAL PROPERTY.
(a) Except as specifically set forth herein, Seller has no
knowledge of any condemnation proceedings pending against the Real Property.
(b) Except as specifically set forth herein or on Exhibit 5.7
hereto, Seller has not entered into any agreement regarding the Real Property,
and to Seller's knowledge, 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 Buyer'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.
(c) To Seller's knowledge, (i) no fact or condition exists which
would result in the permanent termination or material impairment of access to
the Real Property from adjoining public streets or highways or in the permanent
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.
(d) No complaints have been received by Seller that Seller is in
violation of applicable building, zoning, platting, subdivision, use, safety,
building or similar laws, ordinances, regulations and restrictions with respect
to the Real Property. To Seller's knowledge, there are no special or general
assessments pending against or affecting the Real Property and, to Seller's
knowledge, 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 materially affect the use or value of the
premises: (i) to Seller's knowledge, there is no encroachment upon the Real
Property from any buildings or improvements, if any, located on the adjacent
property; and (ii) to Seller's knowledge, there is no encroachment by the Real
Property upon any adjacent property or upon any easements with respect to the
adjacent property. Except as set forth on Exhibit 5.7, 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 other than those described in this Agreement or
exhibits to this Agreement. To Seller's knowledge, and except as disclosed by
title insurance binder or by survey, there is no violation of any applicable
building restriction or restrictive covenant. To Seller's knowledge, the Real
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Property is adequately serviced by all utilities necessary for effective
operation as presently used for a financial institution office.
(e) Seller is the owner in fee simple of the Real Property and has
good and marketable title to the Real Property, subject to Permitted
Encumbrances.
SECTION 5.8. CONDITION OF PROPERTY.
Subject to Buyer's rights under Section 2.10, the parcels of Real
Property are sold "AS IS, WHERE IS," with no warranties or representations
whatsoever, except as may be expressly represented or warranted in this
Agreement.
SECTION 5.9. EMPLOYEES.
Except as set forth on Exhibit 5.9 hereto, no Employee is a party to
any collective bargaining, employment, severance, termination, or change of
control agreement, formal or informal, 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
employees of the Branches. Seller has provided to Buyer 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 employees of the Branches individually or as a group. Buyer agrees to keep
such information in strictest confidence and to confine knowledge of such
information to those of its officers, personnel and representatives who have a
need to know such information in connection with the performance of their
duties.
SECTION 5.10. ENVIRONMENTAL MATTERS.
Except as previously disclosed to Buyer in writing or as disclosed in
the environmental studies, reports and audits delivered to Buyer pursuant to
Section 2.11(a) or as disclosed by investigations and tests performed by Buyer
pursuant to Section 2.11(b), to the actual knowledge of the executive officers
of Seller, and without any investigation by such officers:
(a) The Real Property is, in all material respects, in compliance
with all applicable federal, state, local or municipal statutes, ordinances,
laws and regulations and all orders, rulings or other decisions of any court,
administrative agency or any other governmental authority relating to the
protection of the environment.
(b) The Real Property is free of friable asbestos.
(c) During Seller's ownership and operation, no part of the Real
Property has been used for the manufacture, handling, storage or disposal of
Hazardous Substances, except in compliance with Environmental Laws.
(d) Except as disclosed in writing to Buyer, the Real Property
does not contain, nor to the knowledge of Seller, have they ever contained, an
underground storage tank.
(e) 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
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alleged failure to comply with any requirement of any Environmental Laws with
respect to the Real Property.
(f) Seller has not received notice that, with respect to the Real
Property, Seller is an "owner" or "operator" of a "facility" as those terms are
defined in Section 9601 of the Comprehensive Environmental Response Compensation
and Liability Act of 1980, 42 U.S.C.A. ss. 9601 ("CERCLA").
For purposes of this Section 5.10, "Hazardous Substances" has the meaning
defined in Section 9601 of CERCLA; and "Environmental Laws" mean all laws,
ordinances, rules and regulations that: (i) regulate waste management, including
the containment, storage, handing, transportation, disposal, or management of
Hazardous Substances; (ii) regulate or prescribe requirements for air, water or
soil quality; (iii) protect the environment; or (iv) establish liability for the
investigation, removal, or cleanup of, or damage caused by, any Hazardous
Substances.
SECTION 5.11. DEPOSIT LIABILITIES.
No selection procedures believed to be adverse to Buyer have been
utilized by Seller in selecting the Deposit Liabilities. The Deposit Liabilities
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 Deposit
Liabilities (i) are in all respects genuine and enforceable obligations of
Seller and have been acquired and maintained in full compliance with all
applicable laws, including (but not limited to) the Truth in Savings Act and
regulations promulgated thereunder; (ii) were acquired in the ordinary course of
Seller's business; and (iii) are not subject to any claims with respect to such
Deposit Liabilities that are superior to the rights of persons shown on the
records delivered to Buyer indicating the owners of the Deposit Liabilities
other than claims against such owners of the Deposit Liabilities, such as state
and federal tax liens, garnishments and other judgment claims, which have
matured or may mature into claims against the respective Deposit Liabilities.
SECTION 5.12. BOOKS, RECORDS, DOCUMENTATION, ETC.
The books and records of the Branches 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 in
connection with the Transferred Assets and the Deposit Liabilities comply in all
material respects with applicable federal and state laws and regulations and
customary banking practices; except where failure to comply will not have a
material adverse effect upon the Buyer's realization of the benefits of the
Transferred Assets or Deposit Liabilities.
SECTION 5.13. LITIGATION.
Except as set forth on Exhibit 5.13 hereto, there are no actions,
causes of action, claims, suits or proceedings, pending or, to Seller's
knowledge, threatened, against Seller relating to the Branches or materially
affecting the Branches, whether at law, in equity or before or by a governmental
department, commission, board, bureau, agency or instrumentality. For purposes
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of this section, claims will be considered to materially affect the Branches if
the aggregate amount of such claims exceeds $10,000.
SECTION 5.14. CONTRACTS AND AGREEMENTS.
Seller has delivered a true and complete copy of each contract or other
written agreement described in Section 2.2(b) that is to be assumed by Buyer,
all of which are listed on Exhibit 2.2(b) hereto. Each such contract or other
written agreement is valid and enforceable according to its terms and Seller is
not in default thereunder and there has been no event which, with notice or the
lapse of time, or both, would constitute a default under any such contract or
other written agreement by Seller.
SECTION 5.15. TAX MATTERS.
Seller has complied with the requirements of the Internal Revenue
Service regarding taxpayer identification number certification, interest
information reporting and backup withholding of interest payable in connection
with Deposit Liabilities. Seller has filed all 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 owed by it,
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.
Seller has paid all taxes which it is required to withhold from amounts owing to
employees, creditors, holders of Deposit Liabilities, or other third parties.
For all completed years, Seller has duly and timely sent to each holder of
Deposit Liabilities a Form 1099 (or a substitute form permitted by law) relating
to interest, earnings or dividends paid on such accounts for those periods.
SECTION 5.16. COMPLIANCE WITH LAW.
Seller has complied, in all material respects, with all applicable
laws, ordinances, rules, administrative interpretations, regulations, orders,
writs, injunctions, directives, judgments, decrees, policies, administrative or
judicial doctrines, guidelines or other requirements ("Applicable Laws"),
including, without limitation, the fair housing, anti-redlining, equal credit
opportunity, truth-in-lending, real estate settlement procedures, fair credit
reporting and every other prohibition against unlawful discrimination in or
governing consumer credit, and also including, without limitation, the Consumer
Credit Reporting Act, Equal Credit Opportunity Act of 1975 and Regulation B,
Fair Credit Reporting Act, Truth-in-Lending Law, in particular, Regulation Z as
amended, the Flood Disaster Protection Act of 1973, the Real Estate Settlement
Procedures Act of 1974 and Regulation X and state consumer credit codes and
laws; except where Seller's failure to comply will not have a material adverse
effect upon Buyer's realization of the benefits of the Transferred Assets or
Deposit Liabilities, and except that Seller does not make any representation or
warranty as to the creditworthiness of the obligors or guarantors thereunder, or
the value or adequacy of the collateral associated therewith.
SECTION 5.17. TRANSFERRED LOANS.
The full original principal amount of each Transferred Loan (net of any
discounts) has been fully advanced or disbursed to the borrower named therein,
there is no requirement for
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future advances, and any and all requirements as to completion of any on-site or
off-site improvements and as to disbursements of any escrow funds therefor have
been satisfied; except where the terms of the Transferred Loans have not
required advances or disbursements and except for future advances or commitments
documented as part of the terms of the Transferred Loans. All costs, fees and
expenses incurred in making, closing or recording the Transferred Loan were
paid, and the borrower is not entitled to a refund in respect of any amounts so
paid. There is no obligation on the part of Seller to make supplemental payments
in addition to those made by the borrower.
SECTION 5.18. LIMITATION AND SURVIVAL OF REPRESENTATIONS AND
WARRANTIES.
The foregoing representations and warranties shall survive the
Effective Time for a period of 18 months, except as otherwise specifically
herein provided. EXCEPT AS MAY BE EXPRESSLY REPRESENTED OR WARRANTED IN THIS
AGREEMENT, SELLER MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER WITH REGARD TO
ANY ASSET BEING TRANSFERRED TO BUYER OR ANY LIABILITY OR OBLIGATION BEING
ASSUMED BY BUYER, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY
WARRANTIES WITH RESPECT TO MERCHANTABILITY, FITNESS, TITLE, ENFORCEABILITY,
COLLECTIBILITY, DOCUMENTATION OR FREEDOM FROM LIENS OR ENCUMBRANCES (IN WHOLE OR
IN PART).
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF BUYER
Except as otherwise specifically herein provided, Buyer hereby
represents and warrants to Seller as follows:
SECTION 6.1. CORPORATE ORGANIZATION.
Buyer is a federally-chartered savings bank, duly organized, validly
existing and in good standing under the laws of the United States. Buyer has the
corporate power and authority to carry on the business being acquired, to assume
the liabilities being transferred and to effect the transactions contemplated
herein.
SECTION 6.2. NO VIOLATION.
Neither the execution and delivery of this Agreement, nor the
consummation of the transactions contemplated herein, will violate or conflict
with (i) the charter or bylaws of Buyer; (ii) any material provision of any
material agreement or any other material restriction of any kind to which Buyer
is a party or by which Buyer is bound; (iii) any material statute, law, decree,
regulation or order of any governmental authority; or (iv) any material
provision which will result in a default under, or cause the acceleration of the
maturity of, any material obligation or loan to which Buyer is a party.
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SECTION 6.3. CORPORATE AUTHORITY.
The consummation of the transactions contemplated herein have been duly
authorized by the Board of Directors of Buyer. No further corporate
authorization on the part of Buyer is necessary to consummate the transactions
contemplated hereunder.
SECTION 6.4. ENFORCEABLE AGREEMENT.
This Agreement has been duly executed and delivered by Buyer and is the
legal, valid and binding agreement of Buyer, enforceable in accordance with its
terms.
SECTION 6.5. NO BROKERS.
All negotiations relative to this Agreement and the transactions
contemplated hereby have been carried on by Buyer and Seller and there has been
no participation or intervention by any other person, firm or corporation
employed or engaged by or on behalf of Buyer in such a manner as to give rise to
any valid claim against Seller or Buyer for a brokerage commission, finder's fee
or like commission, except for ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇, Inc.
SECTION 6.6. LITIGATION.
There are no actions, causes of action, claims, suits or proceedings,
pending or, to Buyer's knowledge, threatened, by or against or affecting Buyer
in connection with or relating to the transactions contemplated by this
Agreement or of any action taken or to be taken in connection with this
Agreement or the consummation of the transactions contemplated by this
Agreement.
SECTION 6.7. SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
The foregoing representations and warranties shall survive the
Effective Time for a period of 18 months.
ARTICLE VII
OBLIGATIONS OF PARTIES PRIOR TO AND AFTER EFFECTIVE TIME
SECTION 7.1. FULL ACCESS.
Seller shall afford to the officers and authorized representatives of
Buyer, upon prior notice and subject to Seller's normal security requirements,
access to the Employees, properties, books and records pertaining to the
Branches, specifically including but not limited to all books and records
relating to the Deposit Liabilities, the Transferred Loans and the Real Property
in order that Buyer may have full opportunity to make reasonable investigations
and to engage in operational planning, at reasonable times, without interfering
with the normal business and operations of the Branches or the affairs of Seller
relating to the Branches. Seller will cooperate with Buyer to the extent
reasonably requested and legally permissible to provide Buyer with information
about the Employees; PROVIDED, HOWEVER, that Buyer shall not extend any offers
of employment or otherwise announce or notify the Employees of Buyer's
intentions regarding the
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Employees who will be offered employment by Buyer until after receipt of all
necessary regulatory approvals of the transactions contemplated by this
Agreement. Nothing in this Section 7.1 shall require Seller to breach any
obligation of confidentiality or to reveal any proprietary information, trade
secrets or marketing or strategic plans. Records, including credit information
relating to the Transferred Loans, will be made available for review by Buyer
after the execution of this Agreement. It is understood that certain of Seller's
records may be available only in the form of photocopies, film copies, or other
non-original and non-paper media.
SECTION 7.2. DELIVERY OF MAGNETIC MEDIA RECORDS.
Seller shall prepare or cause to be prepared at its expense and make
available to Buyer at Seller's data processing center or other reasonably
convenient location magnetic media records in Seller's field format as soon as
possible and in any event not later than 60 calendar days after the execution of
this Agreement and further shall make available to Buyer such records updated
monthly and as of the Closing Date. Such updated records shall be made available
at such time after the Closing Date as agreed to by the parties.
SECTION 7.3. APPLICATION FOR APPROVAL.
Within 21 calendar days following the execution of this Agreement,
Buyer shall prepare and file applications required by law with the appropriate
regulatory authorities for approval to purchase and assume the aforesaid assets
and liabilities and to effect in all other respects the transactions
contemplated herein. Buyer agrees to process such applications in a diligent
manner and on a priority basis and to provide Seller promptly with a copy of
such applications as filed (except for any confidential portions thereof) and
all material notices, orders, opinions, correspondence and other documents with
respect thereto, and to use its best efforts to obtain all necessary regulatory
approvals. On the date hereof, Buyer knows of no reason why such applications
should not receive all such approvals. Buyer shall promptly notify Seller upon
receipt by Buyer of notification that any application provided for hereunder has
been accepted or denied. Seller shall provide such assistance and information to
Buyer as shall be reasonably necessary for Buyer to comply with the requirements
of the applicable regulatory authorities.
SECTION 7.4. CONDUCT OF BUSINESS; MAINTENANCE OF PROPERTIES.
From the date hereof until the Effective Time, Seller covenants that it
will:
(a) carry on, or cause to be carried on, the business of the
Branches substantially in the same manner as on the date hereof, use all
commercially reasonable efforts to preserve intact its current business
organization and preserve its business relationships with depositors, customers
and others having business relationships with it and whose accounts will be
transferred to Buyer; PROVIDED, HOWEVER, that Seller need not, in its sole
discretion, advertise or promote new or substantially new customer services in
the principal market area of the Branches;
(b) cooperate with and assist Buyer in assuring the orderly
transition of the business of the Branches to Buyer from Seller; and
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(c) maintain the Real Property and the Personal Property in their
current condition, ordinary wear and tear excepted.
SECTION 7.5. NO SOLICITATION BY SELLER.
After the execution of this Agreement, Seller will take commercially
reasonable steps to avoid causing customers of the Branches to transfer all or
part of their deposit or loan business from the Branches. For a period of 24
months after the Closing Date, neither Seller nor any of Seller's affiliates
will operate any branch facility, loan production office or automated teller
machine at any location within ▇▇▇▇▇▇▇ or ▇▇▇▇▇▇ Counties, Ohio; except that
Seller or its affiliate may operate an office to "work out" the loans retained
by Seller and other loans received from an affiliate of Seller.
SECTION 7.6. FURTHER ACTIONS.
Each party hereto shall execute and deliver such instruments and take
such other actions as the other party may reasonably require in order to carry
out the intent of this Agreement. Included in such actions shall be the
execution and delivery of additional powers of attorney and such other documents
and instruments as shall be prepared and reasonably requested by Buyer to
transfer the Transferred Loans and all collateral related thereto. Such
assistance will be provided to Buyer without costs for Seller's personnel for a
period of at least 12 months after the Closing Date.
SECTION 7.7. FEES AND EXPENSES.
Subject to the provisions of Section 10.3 and except as provided in
this Section 7.7, Buyer shall be responsible for the costs of all title
examinations, surveys, environmental investigation costs, its own attorneys' and
accountants' fees and expenses, recording costs, transfer fees, sales and use
and other transfer taxes, regulatory applications and other expenses arising in
connection therewith as well as all costs and expenses associated with the
transfer or perfection of any security interests or liens securing Transferred
Loans transferred hereunder. Seller shall pay the costs of real estate transfer
charges. Seller shall be responsible for its own attorneys' and accountants'
fees and expenses related to this transaction, including, without limitation,
fees owed to Austin Associates, LLC. Seller shall make no charge to Buyer for
Seller's personnel assigned to transition matters hereunder.
SECTION 7.8. BREACHES WITH THIRD PARTIES.
If the assignment of any material claim, contract, license or
commitment (or any material claim or right or any benefit arising thereunder)
without the consent of a third party would constitute a breach thereof or
materially affect the rights of Buyer or Seller thereunder, Seller shall list
such claim, contract, license or commitment on Exhibit 7.8 hereto and shall use
commercially reasonable efforts to obtain the necessary consent. If such consent
cannot be obtained, Seller shall subcontract such contract or license to Buyer,
if possible, or retain such contract or license.
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SECTION 7.9. OPERATIONS.
Notwithstanding the foregoing, between the date of this Agreement and
the Effective Time, except as set forth on Exhibit 7.9 hereto or as may be
otherwise required by regulatory authority, Seller shall not without the prior
consent of Buyer, which consent shall not be unreasonably withheld:
(a) engage or participate in any material transaction or incur or
sustain any obligation which is material to the business, condition or operation
of the Branches;
(b) transfer to Seller's other operations or affiliates any
material amount of Transferred Assets, except for (i) supplies, if any, which
have a unique function in Seller's business and ordinarily would not be useful
to Buyer, (ii) cash and other normal intrabank transfers which may be
transferred in the ordinary course of business in accordance with normal banking
practices and (iii) signs, or those parts thereof, bearing the name and/or logo
of Seller or any of Seller's affiliates;
(c) except in the ordinary course of business at the unsolicited
request of depositors (i) transfer to Seller's other operations or to Seller's
affiliates any Deposit Liabilities or (ii) cause or permit any of Seller's other
operations or affiliates to transfer to the Branches any Deposit Liabilities;
(d) invest in any fixed assets on behalf of any Real Property
except for replacements of furniture, furnishings and equipment and normal
maintenance and refurbishing purchased or made in the ordinary course of
business;
(e) enter into, amend or renew any continuing contract (other than
Deposit Liabilities and loans) relating exclusively to the Branches, which
cannot be terminated without cause or without payment of any amounts as a
penalty, bonus, premium or other compensation for termination, or which is not
made in the ordinary course of business;
(f) undertake any actions which are inconsistent with a program to
use all reasonable efforts to maintain good relations with customers and with
employees employed at the Branches, unless such actions are required or
permitted by this Agreement;
(g) hire into a Branch (other than to replace a departing employee
and/or to bring the number of employees at the Branch to normal staffing
levels), transfer or reassign any employee of the Branches (other than within
the group of Branches and other than openings with Seller or any of Seller's
affiliates for which an employee has applied or posted);
(h) increase the compensation of any employee of the Branches, or
promote any of the employees, except where any such action is pursuant to and
consistent with customary procedures and policies of Seller (including annual
salary increases effective on or about April 1, 2003 and which will not exceed
5%);
(i) make any material change to its customary policies for setting
rates on deposits offered at the Branches;
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(j) amend or modify any of its promotional, deposit account, or
loan practices at the Branches other than amendments or modifications in the
ordinary course of business. Seller shall administer the Transferred Loans in
accordance with its past standards and practices and in accordance with
applicable laws and regulations and terms of the loan documents;
(k) except as set forth in Exhibit 5.9, enter into any employment,
severance, termination, or change in control contracts or understandings with
the employees of the Branches;
(l) reduce the service charges on any deposit product or fee-based
product (e.g., money orders, cashier's checks) unless such reduction is
implemented generally in Seller's other branches;
(m) lease any space in the Real Property;
(n) until the Effective Time, fail to maintain and update its
general ledger on a basis consistent with its past accounting practices;
(o) undertake any actions which would result in a Title Defect or
fail to take any action to remove or cure a Title Defect caused by Seller after
the date hereof;
(p) modify in any materially adverse manner the terms or
conditions of any Transferred Loan with an outstanding balance that is greater
than or equal to $100,000, except renewals or extensions of Transferred Loans in
the ordinary course of business; or
(q) originate any new loan in an amount greater than or equal to
$100,000 if such loan will be included as a Transferred Loan.
SECTION 7.10. DESTRUCTION AND CONDEMNATION.
If any Real Property is damaged or destroyed or condemned between the
date hereof and the Closing Date, unless Seller has repaired or replaced the
damage or destroyed property, Buyer may elect either not to acquire the Real
Property and the related Transferred Assets or, at the discretion of Buyer,
acquire the Real Property and require Seller to deliver to Buyer any insurance
proceeds, condemnation proceeds or other payment with respect to the Real
Property.
SECTION 7.11. INSURANCE.
As of the Effective Time, Seller will discontinue its insurance
coverage maintained in connection with the Real Property and the activities
conducted thereon. Buyer shall be responsible for all insurance protection for
the Real Property and the activities conducted thereon immediately following the
Effective Time. Seller shall bear the risk of loss until the Effective Time, and
Buyer shall bear the risk of loss thereafter.
SECTION 7.12. PUBLIC ANNOUNCEMENTS.
Seller and Buyer agree that from the date hereof, neither shall make
any public announcement or public comment, regarding this Agreement or the
transactions contemplated
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herein, without first consulting with the other party hereto and reaching an
agreement upon the substance and timing of such announcement or comment.
SECTION 7.13. TAX REPORTING.
Seller shall comply with all tax reporting obligations in connection
with Transferred Assets and liabilities on or before the Effective Time, and
Buyer shall comply with all tax reporting obligations with respect to the
Transferred Assets and liabilities after the Effective Time.
SECTION 7.14. TRANSITIONAL MATTERS.
Seller shall use its commercially reasonable efforts to cooperate with
Buyer to assure an orderly transition of ownership of the Transferred Assets and
Transferred Loans and responsibility for the liabilities, including the Deposit
Liabilities, assumed by Buyer hereunder. As soon as practicable following the
date of this Agreement, but in no event later than 30 calendar days after the
date of this Agreement, Buyer shall provide Seller with a draft of a detailed
transition plan covering operational aspects of the transition, including
methods for the transmission of data and records. If Seller does not accept any
part or all of such plan, it must notify Buyer in writing within 15 calendar
days after receiving such draft transition plan from Buyer, 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 60 calendar days
after the date of this Agreement. Seller shall use its commercially reasonable
efforts to cooperate fully with Buyer in implementing such transition plan.
SECTION 7.15. NO SOLICITATION BY BUYER. Prior to the Effective Time,
Buyer shall not knowingly solicit, either directly or indirectly, any of the
deposit or loan customers of Seller to become customers of Buyer or any of its
subsidiaries or affiliates, provided that a general solicitation by Buyer which
is not specifically targeted to customers of Seller shall not be deemed to be a
breach of this Section. For purposes hereof, "knowingly" shall mean the actual
knowledge of Buyer and its directors, officers, employees and agents who are
aware of the existence of this Agreement and the prohibition set forth in this
Section 7.15. In addition to any other remedies available to Buyer at law or in
equity, if any breach by Buyer of this Section 7.15 results in the transfer of
any Deposit Liabilities from Seller to Buyer, then the amount of the Deposit
Liabilities so transferred shall be included in the total amount of Deposit
Liabilities for purposes of calculating the deposit premium under Section
2.2(a)(3) hereof.
ARTICLE VIII
CONDITIONS TO BUYER'S OBLIGATIONS
The obligation of Buyer to complete the transactions contemplated in
this Agreement is conditioned upon fulfillment, on or before the Closing Date,
of each of the following conditions:
SECTION 8.1. REPRESENTATIONS AND WARRANTIES TRUE.
The representations and warranties made by Seller in this Agreement
shall be true in all material respects on and as of the Effective Time as though
such representations and warranties
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were made at and as of such time, except for any changes permitted by the terms
hereof or consented to by Buyer.
SECTION 8.2. OBLIGATIONS PERFORMED.
Seller shall (a) deliver or make available to Buyer those items
required by Section 3.2(b) hereof, and (b) perform and comply in all material
respects with all obligations and agreements required by this Agreement to be
performed or complied with by it prior to or on the Effective Time.
SECTION 8.3. NO PROCEEDINGS.
Since the date of this Agreement, there shall not have been commenced
or threatened against Buyer or Seller any action, suit or proceeding (a)
involving any challenge to, or seeking damages or other relief in connection
with, any of the transactions contemplated by this Agreement or (b) that may
have a material adverse affect on the transactions contemplated by this
Agreement.
SECTION 8.4. REGULATORY APPROVAL.
(a) Buyer shall have received all necessary regulatory approvals
of the transactions contemplated by this Agreement, all notice and waiting
periods required by law to pass shall have passed, no proceeding to enjoin,
restrain, prohibit or invalidate such transactions shall have been instituted or
threatened, and any conditions of any regulatory approval shall have been met.
(b) Such approvals shall not have imposed any condition which is
materially disadvantageous or burdensome to Buyer; PROVIDED, HOWEVER, that
capital enhancements shall not be considered to be materially disadvantageous or
burdensome to Buyer.
SECTION 8.5. AGREEMENT WITH RDSI.
Buyer and RDSI shall have entered into an agreement on commercially
reasonable terms regarding RDSI's provision of data processing services to Buyer
at the Real Property for a time not to exceed six (6) months after the Effective
Time.
ARTICLE IX
CONDITIONS TO SELLER'S OBLIGATIONS
The obligation of Seller to complete the transactions contemplated in
this Agreement is conditioned upon fulfillment, on or before the Closing Date,
of each of the following conditions:
SECTION 9.1. REPRESENTATIONS AND WARRANTIES TRUE.
The representations and warranties made by Buyer in this Agreement
shall be true in all material respects at and as of the Effective Time as though
such representations and warranties were made at and as of such time, except for
any changes permitted by the terms hereof or consented to by Seller.
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SECTION 9.2. OBLIGATIONS PERFORMED.
Buyer shall (a) deliver to Seller those items required by Section
3.2(c) hereof, and (b) have performed and complied in all material respects with
all obligations and agreements required by this Agreement to be performed or
complied with by it prior to or on the Effective Time.
SECTION 9.3. NO PROCEEDINGS.
Since the date of this Agreement, there shall not have been commenced
or threatened against Buyer or Seller any action, suit or proceeding (a)
involving any challenge to, or seeking damages or other relief in connection
with, any of the transactions contemplated by this Agreement or (b) that may
have a material adverse affect on the transactions contemplated by this
Agreement.
SECTION 9.4. REGULATORY APPROVAL.
(a) Seller shall have received all necessary regulatory approvals
of the transactions contemplated by this Agreement, all notice and waiting
periods required by law to pass shall have passed, no proceeding to enjoin,
restrain, prohibit or invalidate such transactions shall have been instituted or
threatened, and any conditions of any regulatory approval shall have been met.
(b) Such approvals or Buyer's corresponding regulatory approvals
shall not have imposed any condition which is materially disadvantageous or
burdensome to Seller.
ARTICLE X
TERMINATION
SECTION 10.1. METHODS OF TERMINATION.
This Agreement may be terminated in any of the following ways:
(a) by either Buyer or Seller, in writing five calendar days in
advance of such termination, if the Closing has not occurred by June 30, 2003,
and such failure to close the transactions contemplated by this Agreement has
not been caused by a breach of this Agreement by the terminating party;
(b) at any time on or prior to the Effective Time by the mutual
consent in writing of Seller and Buyer;
(c) by Seller in writing if the conditions set forth in Article IX
of this Agreement shall not have been met by Buyer or waived in writing by
Seller prior to the Closing Date;
(d) by Buyer in writing if the conditions set forth in Article
VIII of this Agreement shall not have been met by Seller or waived in writing by
Buyer prior to the Closing Date;
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(e) any time prior to the Effective Time, by Buyer or Seller in
writing if the other shall have been in breach of any representation and
warranty in any material respect (as if such representation and warranty had
been made on and as of the date hereof and on the date of the notice of breach
referred to below) or in breach of any covenant, undertaking or obligation
contained herein, and such breach has not been cured by the earlier of 30
calendar days after the giving of notice to the breaching party of such breach
or the Effective Time; PROVIDED, HOWEVER, that there shall be no cure period in
connection with any breach of Section 7.3 hereof, so long as such breach by
Buyer was not caused by any action or inaction of Seller, and Seller may
terminate this Agreement immediately if regulatory applications are not filed
within 21 calendar days after the date of this Agreement as provided in that
section; or
(f) by Seller in writing at any time after any applicable
regulatory authority has denied approval of any application of Buyer for
approval of the transactions contemplated herein.
SECTION 10.2. PROCEDURE UPON TERMINATION.
In the event of termination pursuant to Section 10.1 hereof, and except
as otherwise stated therein, written notice thereof shall be given to the other
party, and this Agreement shall terminate immediately upon receipt of such
notice unless an extension is consented to by the party having the right to
terminate. If this Agreement is terminated as provided herein:
(a) each party will return Confidential Information (as defined in
Section 11.1 hereof) of the other party, including photocopies or other
duplications or summaries thereof, to the other party;
(b) the provisions of Article XI and this Section 10.2 shall
survive the termination of this Agreement;
(c) Buyer will not knowingly solicit, either directly or
indirectly, for employment any employee of Seller for a period of one year after
the termination of this Agreement without the prior written consent of Seller,
provided that a general solicitation by Buyer that is not specifically targeted
to employees of the Seller shall not be deemed to be a breach of this Section
10.2; and
(d) each party will pay its own expenses, except as provided in
Section 10.3 hereof.
SECTION 10.3. PAYMENT OF EXPENSES.
Should the transactions contemplated herein not be consummated because
of a party's breach of this Agreement, in addition to such damages as may be
recoverable at law or in equity, the other party shall be entitled to recover
from the breaching party upon demand, itemization and documentation, its
reasonable outside legal, accounting, consulting and other out-of-pocket
expenses.
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ARTICLE XI
CONFIDENTIAL INFORMATION
SECTION 11.1. DEFINITION OF CONFIDENTIAL INFORMATION.
(a) As used in this Agreement, the term "Confidential Information"
shall include any of the following information of Seller or Buyer that has been
or may hereafter be disclosed in writing, orally, electronically, digitally or
in any other medium, or otherwise made available by observation, inspection or
otherwise by either party or its representatives (collectively, a "Disclosing
Party") to the other party or its representatives (collectively, a "Receiving
Party"): (i) the whole or any portion or phase of any data or information
relating to Disclosing Party's products, technologies, processes or techniques
relating to its businesses, whether or not copyrighted, patented or patentable,
(ii) business plans, marketing concepts, marketing and sales information of the
Disclosing Party; (iii) financial information, budgets or projections regarding
the Disclosing Party; (iv) financial, pricing and/or credit information
regarding customers, distributors or vendors of the Disclosing Party; (v) a
listing of names, addresses or telephone numbers of customers or clients of the
Disclosing Party; (vi) internal corporate policies and procedures of the
Disclosing Party; (vii) any other information designated as a "Trade Secret" or
"Confidential" by the Disclosing Party at the time of its disclosure to the
Receiving Party; (viii) any other information of the Disclosing Party otherwise
falling within the definition of a "Trade Secret" pursuant to the Uniform Trade
Secrets Act; and (ix) any and all analyses, compilations, studies or other
documents or records prepared by the Receiving Party which are derived from or
based upon other Confidential Information of the Disclosing Party. Confidential
Information shall also include information which has been disclosed to the
Receiving Party by a third party which would otherwise fall within the foregoing
categories and with respect to which the Receiving Party owes a duty of
confidentiality.
(b) Notwithstanding Section 11.1(a) above, the term "Confidential
Information" does not include information which (i) the Receiving Party can
establish was already in its possession at the time of receipt from the
Disclosing Party, provided that such information was lawfully obtained by the
Receiving Party and is not known by the Receiving Party to be subject to another
confidentiality agreement with, or other obligation of secrecy to, the
Disclosing Party or another party, (ii) becomes generally available to the
public other than as a result of a disclosure by the Receiving Party, or (iii)
becomes available to the Receiving Party on a non-confidential basis from a
source other than the Disclosing Party, provided that such source is not known
by the Receiving Party to be bound by a confidentiality agreement with or other
obligation of secrecy to the Disclosing Party or another person.
SECTION 11.2. USE OF CONFIDENTIAL INFORMATION.
(a) Each Receiving Party hereby agrees that it will use the
Confidential Information solely for the purpose of evaluating, negotiating and
consummating the transactions contemplated by this Agreement, and will keep the
Confidential Information confidential at all times; PROVIDED, HOWEVER, that (i)
any Confidential Information may be disclosed to those employees and
representatives of the Receiving Party who need to know such information for the
purpose of assisting in evaluating, negotiating and consummating the
transactions contemplated by this Agreement (it being understood and agreed that
such representatives (A) will be informed
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of the confidential nature of the Confidential Information and the obligation of
confidentiality undertaken by the Receiving Party under this Agreement, and (B)
shall be directed to treat the Confidential Information confidentially in
accordance with the provisions of this Agreement), (ii) any disclosure may be
made to which the Disclosing Party consents in writing, and (iii) any disclosure
required by applicable law or legal proceedings may be made, subject to
compliance with Section 11.3 hereof.
(b) From and after the Closing, the provisions of Section 11.2(a)
above shall not apply to or restrict in any manner Buyer's use of any
Confidential Information of the Seller relating to the Transferred Assets or the
Deposit Liabilities and other liabilities assumed by Buyer pursuant to this
Agreement.
SECTION 11.3. LEGAL PROCEEDINGS.
Notwithstanding any provision of this Agreement to the contrary, in the
event that a Receiving Party is requested or required in a judicial,
administrative or governmental proceeding to disclose any Confidential
Information, the Receiving Party will, unless prohibited by law, provide the
Disclosing Party with prompt written notice of such request and all related
proceedings so that the Disclosing Party may seek an appropriate protective
order or waive its compliance with the confidentiality provisions of this
Agreement. If, as a result of any such request or requirements, the Receiving
Party is, in the opinion of its counsel, compelled to disclose Confidential
Information to any tribunal or else stand liable for contempt or other censure
or penalty, the Receiving Party may disclose such Confidential Information to
such tribunal without liability hereunder provided that it complies with the
notice provisions of this Section 11.3.
SECTION 11.4. REMEDIES FOR BREACH.
Each Receiving Party acknowledges and agrees that great loss and
irreparable damage would be suffered by the Disclosing Party if the Receiving
Party breaches any of the covenants or agreements set forth in this Article XI.
Each Receiving Party acknowledges and agrees that money damages would not be a
sufficient remedy for any breach or threatened breach of this Article XI, and
the Disclosing Party shall be entitled to enforce the provisions of this Article
XI by specific performance and injunctive relief. Such remedies shall not be
deemed to be the exclusive remedies for a breach or threatened breach of this
Article XI, but shall be in addition to all remedies available at law or in
equity to the Disclosing Party, including, without limitation, the recovery of
damages. Each Receiving Party further acknowledges and agrees that each such
covenant and agreement is reasonable and necessary in order to protect and
preserve the legitimate business interests of the Disclosing Party. If a court
of competent jurisdiction finds that a Receiving Party has violated this Article
XI, this Article XI shall authorize such court, in its discretion, to include in
its award of damages to the Disclosing Party the amount of the costs and
expenses (including without limitation reasonable attorneys fees) reasonably
incurred by the Disclosing Party in connection with the enforcement of this
Article XI.
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ARTICLE XII
MISCELLANEOUS PROVISIONS
SECTION 12.1. NOTIFICATION OF OCCURRENCES.
At all times from the date of this Agreement until the Closing, each
party shall promptly notify the other of the occurrence of any event or the
failure of any event to occur that might reasonably be expected to result in a
breach of or a failure to comply with any representation, warranty, covenant,
condition or agreement contained in this Agreement or of the commencement of any
action, suit, proceeding or investigation against it.
SECTION 12.2. AMENDMENT AND MODIFICATION.
The parties hereto, by mutual consent, may amend, modify and supplement
this Agreement in such manner as may be agreed upon by them in writing.
SECTION 12.3. WAIVER OR EXTENSION.
Except with respect to required approvals of the applicable
governmental authorities, either party, by written instrument signed by a duly
authorized officer, may extend the time for the performance of any of the
obligations or other acts of the other party and may waive (a) any inaccuracies
in the representations and warranties contained herein or in any document
delivered pursuant hereto or (b) compliance with any of the undertakings,
obligations, covenants or other acts contained herein.
SECTION 12.4. ASSIGNMENT.
This Agreement and all of the provisions hereof shall be binding upon,
and shall inure to the benefit of, the parties hereto and their successors and
assigns; PROVIDED, HOWEVER, that neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by either of the parties
hereto without the prior written consent of the other.
SECTION 12.5. ADDRESSES FOR NOTICES, ETC.
All notices, consents, waivers and other communications under this
Agreement must be in writing and will be deemed to have been duly given when (a)
delivered by hand (with written confirmation of receipt), (b) deposited in the
United States Mail if sent by registered or certified mail, return receipt
requested, (c) sent by facsimile (with electronic confirmation of receipt),
provided that a copy is mailed by registered or certified mail, return receipt
requested, or (d) when received by the addressee, if sent by a nationally
recognized overnight delivery service, in each case to the appropriate addresses
or facsimile numbers set forth below (or to such other addresses and facsimile
numbers as a party may designate by notice to the other party):
If to Seller, to: RFC Banking Company
c/o Rurban Financial Corp.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Facsimile Number: ▇▇▇-▇▇▇-▇▇▇▇
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with a copy to: Vorys, ▇▇▇▇▇, ▇▇▇▇▇▇▇ and ▇▇▇▇▇ LLP
▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Facsimile Number: ▇▇▇-▇▇▇-▇▇▇▇
If to Buyer, to: First Federal Bank of the Midwest
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. Small
Facsimile Number: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to: Vorys, ▇▇▇▇▇, ▇▇▇▇▇▇▇ and ▇▇▇▇▇ LLP
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Facsimile Number: ▇▇▇-▇▇▇-▇▇▇▇
SECTION 12.6. COUNTERPARTS.
This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
SECTION 12.7. HEADINGS.
The headings of the articles and sections of this Agreement are
inserted for convenience only and shall not constitute a part thereof.
SECTION 12.8. GOVERNING LAW.
This Agreement shall be governed by, and construed in accordance with,
the laws of the State of Ohio.
SECTION 12.9. SOLE AGREEMENT.
This Agreement and the exhibits and attachments hereto represent the
sole agreement between the parties hereto respecting the transactions
contemplated hereby and all prior or contemporaneous written or oral proposals,
agreements in principle, representations, warranties and understandings between
the parties with respect to such matters are superseded hereby and merged
herein.
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SECTION 12.10. PARTIES IN INTEREST.
Nothing in this Agreement, express or implied, expressly including,
without limiting the generality of the foregoing in any way, the provisions of
Section 2.6 hereof, is intended or shall be construed to confer upon or give to
any person (other than the parties hereto, their successors and permitted
assigns) any rights or remedies under or by reason of this Agreement, or any
term, provision, condition, undertaking, warranty, representation, indemnity,
covenant or agreement contained herein.
SECTION 12.11. CALCULATION OF DATES AND DEADLINES.
Unless otherwise specified, any period of time to be determined under
this Agreement shall be deemed to commence at 12:01 a.m. on the first full day
after the specified starting date, event or occurrence. Any deadline, due date,
expiration date, or period-end to be calculated under this Agreement shall be
deemed to end at 5:00 p.m. on the last day of the specified period. The time of
day shall be determined with reference to the then current local time in
Findlay, Ohio.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the date first written above.
RURBAN FINANCIAL CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------
Printed Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Title: President and CEO
---------------------------------------
RFC BANKING COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------------
Printed Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
Title: CEO
---------------------------------------
FIRST FEDERAL BANK OF THE MIDWEST
By: /s/ ▇▇▇▇▇▇▇ ▇. Small
------------------------------------------
Printed Name: ▇▇▇▇▇▇▇ ▇. Small
--------------------------------
Title: Chairman/CEO
---------------------------------------
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