AGREEMENT TO PURCHASE ASSETS
AND ASSUME LIABILITIES
This AGREEMENT TO PURCHASE ASSETS AND ASSUME LIABILITIES
("Agreement") is made and entered into as of the 1st day of April, 1997 by and
between UNITED COMMONWEALTH BANK, FSB, a federal savings bank ("Buyer"), and
REPUBLIC BANK AND TRUST COMPANY, a Kentucky banking corporation ("Seller").
W I T N E S S E T H:
WHEREAS, Buyer desires to acquire certain fixed assets and
assume certain deposit liabilities of Seller, and Seller desires to sell, assign
and transfer to Buyer such assets and liabilities as further described in this
Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
representations, covenants and agreements set forth in this Agreement, the
parties agree as follows:
ARTICLE 1.
DEFINITIONS
1.1 Definitions. As used in this Agreement, the following
terms have the definitions indicated:
"Accrued Interest" means interest on Deposits which is accrued but
unpaid through the Closing Date (as hereinafter defined).
"Assets" means the Cash on Hand, Fixed Assets, the Real Property and
Improvements, and the Records.
"Branch" means the branch office of Seller located in Xxxxxxxx County,
Kentucky, including all Real Property and Improvements.
"Cash on Hand" means the amount of all actual United States currency
and coinage on hand at the Branch as of the Closing Date and identified on the
Final Balance Sheet.
"Closing Balance Sheet" means the balance sheet dated as of the close
of business on the business day immediately preceding the Closing Date
reflecting the balance sheet categories of assets and liabilities of Seller
being purchased, accepted and assumed by Buyer pursuant to this Agreement and
which is used to determine the Closing Payment (as defined herein).
"Deposits" means those deposit accounts as of the Closing Date which
are defined as deposits under Section 3(l) of the Federal Deposit Insurance Act
(12 U.S.C. 1813(l), which are maintained with or at the Branch and that remain
on deposit with Seller as of the Closing Date and are reflected on the Final
Balance Sheet. Notwithstanding the foregoing, Deposits shall not include
Overdrawn Accounts, or deposit accounts presently subject to escheat.
"Encumbrances" means all mortgages, claims, charges, liens,
encumbrances, easements, restrictions, options, pledges, calls, commitments,
security interests, conditional sales agreements, title retention agreements,
leases and other restrictions of any kind whatsoever other than the Permitted
Exceptions.
"Final Balance Sheet" means the balance sheet dated as of the Closing
Date reflecting the balance sheet assets and liabilities of Seller being
purchased, accepted and assumed by Buyer pursuant to this Agreement and which is
used to determine the Final Closing Payment (as defined herein).
"Fixed Assets" includes all furniture, equipment, trade fixtures and
other tangible personal property (including safe deposit boxes) located in or
upon the Branch, including without limitation those assets listed on Exhibit A
hereto, but excluding those assets listed on Exhibit B.
"Loans" means the loans set forth on Exhibit C hereto, together with
all accrued but unpaid interest thereon, which were made by Seller at the Branch
and are collateralized by Deposits. The term "Loans" shall include, without
limitation, all right, title and interest of Seller in and to the collateral
held as security for the Loans, and any other right, title or interest related
in any way to the Loans.
"Out-of-Area Deposits" means all Deposits in deposit accounts owned [a]
by a depositor with an address that is not located in Xxxxxxxx County, Kentucky
or a contiguous county or [b] by Seller or an affiliate of Seller.
"Overdrawn Accounts" means all Deposits that are overdrawn at the
Branch on the Closing Date, other than those overdrawn Deposits, if any, that
Buyer may designate at the Closing.
"Net Book Value" means the book value of an asset on the accounting
records of Seller.
"Permitted Exceptions" means liens for real estate taxes accrued but
not yet payable, and such imperfections of title and encumbrances as do not
materially detract from the value or interfere with the use of the property as
offices of a financial institution or other commercial enterprise.
"Real Property and Improvements" means the real property owned by
Seller on which the Branch is located as more particularly described on Exhibit
D hereto, together with all improvements made thereon.
"Records" means (a) all available records and original documents
(including warranties on Fixed Assets) pertaining to the Assets and (b) all
records and original documents relating to the Deposits.
ARTICLE 2.
TERMS OF PURCHASE
2.1 PURCHASE AND SALE OF ASSETS. At the Closing (as
hereinafter defined) and subject to the terms and conditions set forth in this
Agreement, Seller shall sell, convey, assign and transfer to Buyer, and Buyer
shall purchase from Seller, all of Seller's right, title and interest in and to
the Assets. The conveyance shall be effected by means of such appropriate deeds
of general warranty, bills of sale and other assignments, together with such
other appropriate instruments of title as Buyer may reasonably request, as shall
be sufficient to vest and confirm in Buyer good and marketable title thereto,
free and clear of all Encumbrances. Any recording fee, sales tax, documentary
transfer tax or other assessment with respect to recordation of such conveyance
shall be paid by Buyer.
2.2 PURCHASE PRICE AND ALLOCATION. Buyer shall assume at
the Closing the liabilities of Seller set forth in Section 2.3, and shall pay to
Seller at the Closing, in the manner set out in Section 3.2 hereof, the
following:
A. A core deposit premium equal to ten percent (10%) of
the principal amount of the Deposits (less Out-of-Area Deposits) at the Closing
Date;
B. A sum equal to the Net Book Value of the Fixed Assets
and the Real Property and Improvements as of December 31, 1996, less accumulated
depreciation and amortization from December 31, 1996 through the Closing Date;
C. A sum equal to the Cash on Hand as of the Closing
Date; and
D. A sum equal to the outstanding principal balance of and all
accrued but unpaid interest on the Loans as of the Closing Date, calculated in
accordance with generally accepted accounting principles consistently applied.
2.3 ASSUMPTION OF LIABILITIES.
A. DEPOSITS. On the Closing Date, subject to the terms
and conditions set forth in this Agreement, Buyer shall assume liability for the
payment and performance of Seller's obligations on the Deposits, and all Accrued
Interest thereon, in accordance with the terms of such Deposits in effect on the
Closing Date.
B. RELATED ASSETS AND OBLIGATIONS. Except as expressly set
forth in this Section 2.3, it is expressly understood and agreed that Buyer
shall not assume or be liable for any of the debts, obligations or liabilities
of Seller of any kind or nature whatsoever including, but not limited to, any
obligations to provide services incidental to the operation of the Branch, any
tax or debt, any liability for unfair labor practices, any liability or
obligation of Seller arising out of any threatened or pending litigation, any
liability with respect to personal injury or property damage claims, any
liability arising out of claims of employees employed at the Branch for bonuses,
salaries, wages or other payments or benefits in respect of services performed
at the Branch prior to the Closing Date, any liability under or in connection
with any "employee benefit plan" as defined in Section 3(3) of ERISA which is
maintained by Seller and covers any employees at the Branch, any liability
Seller may have incurred or will incur in connection with the transactions
contemplated by this Agreement, or any other liability Seller may have incurred
prior to the Closing Date in connection with the operation of the Branch.
C. REIMBURSEMENT FOR DEPOSITS. In consideration for
assuming the Deposits and the Accrued Interest thereon, Seller shall pay to
Buyer an amount in immediately available funds equal to the sum of 100% of the
Deposits and all Accrued Interest thereon as of the Closing Date.
2.4 PRORATIONS. All personal property taxes with respect to
the Fixed Assets, all real property taxes with respect to the Real Property and
Improvements and all other items of income and expense attributable to the
Assets capable of proration, including without limitation deposit taxes and
assessments, if any, shall be prorated between the parties as of the Closing
Date on the basis of a 30-day month and 360-day year.
ARTICLE 3.
CLOSING
3.1 CLOSING. The closing of the transactions contemplated by
this Agreement (the "Closing") shall take place at the offices of Xxxxx, Xxxxxxx
& Xxxxx, 0000 Xxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, at 10:00 a.m. on such
date as the parties may fix, but not later that the fifth business day after the
satisfaction of the conditions set forth in Sections 6.1C and 6.2C of this
Agreement ("the Closing Date"). The Closing shall be effective as of the close
of business of Seller on the Closing Date.
3.2 CLOSING PAYMENT. The amount owed Seller by Buyer pursuant
to Section 2.2 will be deducted from the amount owed Buyer by Seller pursuant to
Section 2.3C and netted with the amount due the appropriate party under Section
2.4 to determine the closing payment due Buyer from Seller as of the Closing
(the "Closing Payment"). Seller shall pay the Closing Payment to Buyer on the
Closing Date in immediately available funds. Because the parties acknowledge
that certain amounts to be paid may not be finally determinable until after the
Closing Date, the Closing Payment will be paid as follows:
A. Prior to the Closing, Seller shall deliver to Buyer the
Closing Balance Sheet, certified by its Chief Financial Officer as being true
and correct, so that, at the Closing, Seller and Buyer can calculate the Closing
Payment, as if the Closing Date occurred at the close of business on the
business day prior to the Closing Date. Seller shall pay the amount of the
Closing Payment, so calculated, to Buyer at the Closing.
B. As promptly as practicable following the Closing Date, and
in any event not later than 30 days after the Closing Date, Seller and Buyer
shall agree upon a Final Balance Sheet, updating as of the Closing Date all
information set forth on the Closing Balance Sheet, and making a final
determination of the Closing Payment as of the Closing Date (the "Final Closing
Payment"). The Final Closing Payment calculated from the Final Balance Sheet
shall be netted against the amount paid on the Closing Date, and any resulting
amount payable by Seller to Buyer or by Buyer to Seller shall be paid in
immediately available funds within one business day of the parties agreeing upon
the Final Balance Sheet and the Final Closing Payment due as of such date. If
Seller and Buyer are unable to agree on the Final Balance Sheet and the Final
Closing Payment calculated thereby within 30 days following the Closing Date,
either party may, within 40 days after the Closing Date, refer any disputes
regarding preparation of the Final Balance Sheet and/or the calculation of the
Final Closing Payment as of such date to a firm of independent certified public
accountants mutually agreeable to Seller and Buyer whose written determination
with respect to such dispute shall be final and binding on such parties. The
costs and expenses of such submission shall be divided equally between Seller
and Buyer.
3.3 SALES TAXES AND RECORDING FEES. Seller shall pay all
transfer and sales taxes resulting from the sale or transfer of the Assets, and
Seller shall indemnify and hold Buyer harmless against all liabilities for any
taxes on or resulting from the sale or transfer of the Assets, including any tax
on any gain or income incurred by Seller as a result of such sale or transfer.
Buyer shall pay all recording and filing fees resulting from the sale or
transfer of the Assets, and Buyer shall indemnify and hold Seller harmless from
any and against all liabilities for any recording and filing fees resulting from
the sale or transfer of the Assets.
ARTICLE 4.
COVENANTS
4.1 CONDUCT OF BUSINESS PRIOR TO CLOSING. Except with the
prior written consent of Buyer or as expressly contemplated or permitted by this
Agreement, during the period from the date of this Agreement and continuing
until the Closing Date, Seller shall not:
A. Conduct business at the Branch other than in the
usual, regular and ordinary course or fail to use commercially reasonable
efforts to preserve the Branch intact or to preserve the good will of the
customers at and others having business relations with the Branch;
B. Cancel any claims that it might have possessed with
respect to the Assets, or cancel or waive any material rights related to the
Assets or sell, lease, encumber, or otherwise dispose of, or agree to sell,
lease, encumber or otherwise dispose of, any of the Assets;
C. Cause the Branch to engage or participate in any
material transaction or incur or sustain any material obligation, except for
transactions or obligations entered into by Seller prior to the date hereof and
set out on SCHEDULE 4.1C hereto;
D. Offer, at the Branch, rates on accounts above or below, or
terms on accounts more or less restrictive than, those generally offered on the
same type of account by other financial institutions in the Xxxxxxxx County,
Kentucky banking market, consistent with past practice;
E. Cause the Branch to transfer, including without
limitation to Seller's other operations or branches, any Deposits, Loans or
Fixed Assets at the Branch;
F. Cause the Branch to transfer any Deposits, including
without limitation to Seller's other operations or branches, except upon the
unsolicited request of a depositor in the ordinary course of business;
G. Transfer, assign, encumber or otherwise dispose of or
enter into any commitment, contract, agreement, understanding or other
arrangement to transfer, assign, encumber or otherwise dispose of any of the
Assets or any of the collateral securing the Loans, except as contemplated by
this Agreement;
H. Invest in any Fixed Assets on behalf of the Branch,
except for commitments made on or before the date of the Agreement and for
normal maintenance in the ordinary course of business;
I. Undertake any actions which are inconsistent with a
program to use all reasonable efforts to maintain good relations with employees
employed at the Branch, unless such actions are required or permitted by this
Agreement;
J. Increase or agree to increase the salary, remuneration or
compensation (including any insurance, pension or other benefit plan) payable or
to become payable to persons employed at the Branch other than in accordance
with Seller's customary policies and/or bank-wide changes, or pay or agree to
pay any uncommitted bonus to any such employees other than regular bonuses
granted based on historical practice;
K. Hire any new employees at the Branch, except in
replacement of current employees;
L. Violate any law, statute, rule, governmental
regulation, order or undertaking which violation might have an adverse effect on
the Assets;
M. Fail to maintain the Records in the usual manner on a
basis consistent with that heretofore employed; or
N. Transfer employees to and from the Branch and
Seller's other operations.
4.2 ASSISTANCE IN OBTAINING REGULATORY APPROVALS. Seller
agrees to use its best efforts to obtain all approvals and consents necessary to
complete the transactions contemplated hereby, and Seller will provide promptly
to Buyer or to the appropriate regulatory authorities all information reasonably
required to be submitted by Seller in connection with approvals of the
transactions contemplated by this Agreement.
4.3 NO ENCUMBRANCES. Between the date of this Agreement and
the Closing Date, Seller will not create or suffer to exist any new Encumbrance
on any of the Assets, or otherwise enter into any transaction or make any
commitment or agreement relating to any of the Assets without the prior written
consent of Buyer.
4.4 INSURANCE POLICIES. Seller will maintain in effect
until the Closing all current insurance policies listed in Schedule 5.1G hereto.
4.5 BOOKS AND RECORDS. To the extent not limited or prohibited
by applicable law or by bank regulatory policies or regulations, all books and
records relating to the office operations, assets and liabilities of the Branch
prior to the Closing Date which are retained and/or maintained by one party
shall be open for inspection by the other party and its authorized agents,
representatives and regulators during regular business hours after the Closing
Date and the party with the right of inspection may, at its own expense, make
such copies of and excerpts from such records as it may deem desirable. All such
books and records shall be maintained by a party for a period which is at least
the longer of the period required by law or the normal retention period under
such party's records management program unless the parties shall, applicable law
permitting, agree upon a shorter period. Should one party's audit or inspection
of records in another party's possession result in the second party's employees
or agents having to devote any substantial amount of time or such party having
to allocate facilities or equipment or having to incur any substantial costs,
then the second party shall be entitled to reasonable reimbursement for all such
costs incurred.
4.6 FURTHER ASSURANCES. On and after the Closing Date, Seller
shall (a)ygive such further assistance to Buyer and shall execute, acknowledge
and deliver all such bills of sale, deeds, acknowledgments and other instruments
and take such further action as may be necessary and appropriate effectively to
vest in Buyer full, legal and equitable title to the Assets, and (b)yuse its
best efforts to assist Buyer in the orderly transition of the operations being
acquired by Buyer.
In particular, and without limiting the foregoing:
[1] Seller will remit to Buyer promptly after receipt by Seller after
the Closing Date at any of its other offices all payments relating to Loans or
amounts intended for deposit to the accounts which are part of the Deposits or
otherwise relating to the Deposits or the Loans; and
[2] With respect to checks or drafts drawn against accounts which are
Deposits, Seller will cooperate with Buyer and take all reasonable steps
requested by Buyer to ensure that, on or after the Closing Date, each such item
which is coded for presentment to Seller or to any bank for the account of
Seller is made available to Buyer in a timely manner and in accordance with
applicable law and clearing house rule or agreement.
4.7 INSPECTION. Seller will permit the accountants, counsel
and other authorized representatives of Buyer, during normal business hours, to
inspect the facilities, books, Records, files, contracts, agreements, books of
account, tax returns, compliance and other reports of examination by regulatory
authorities, and other corporate documents related to the Branch and/or the
Assets and confer with any officers or employees of it as the same relate to the
Branch. Seller shall cause to be furnished to Buyer and its advisors all such
other information concerning its business and properties, as it may reasonably
request from time to time, including without limitation historical information
relating to deposit accounts previously maintained at the Branch; provided,
however, that such information is in existence as of the date hereof and will
not require the generation of new or previously nonexisting data or reports.
Notwithstanding the foregoing, no investigation or inspection in accordance with
this Section 4.7 shall affect or otherwise diminish any of the representations
and warranties made by, or the conditions to the obligations to consummate the
transactions contemplated hereby, of Seller.
4.8 NOTIFICATION OF MATERIAL CHANGES AND LITIGATION. Seller
shall provide Buyer with prompt written notice of (a) any adverse or potentially
adverse material change in the condition of the Assets; (b) any event or
condition of any character (whether actual, threatened or contemplated) that has
materially adversely affected, or can reasonably be expected to materially and
adversely affect, the Assets; (c) all claims, regulatory proceedings and
litigation involving the Assets; and (d) all changes in the information set
forth on any Exhibit or Schedule hereto.
4.9 DELIVERY OF STATEMENTS OF CONDITION. Prior to the Closing,
Seller shall furnish to Buyer, on the fifteenth (15th) and last business day of
each month, a summary trial balance for the Branch and, upon request by Buyer, a
complete trial balance for the Branch.
4.10 OBTAINING REGULATORY APPROVALS. Buyer agrees to use its
best efforts to obtain, and to file with the appropriate regulatory authorities
promptly all applications necessary to obtain, all approvals and consents
necessary to complete the transactions contemplated hereby, including any such
notices or applications required to be filed by Buyer with the Office of the
Thrift Supervision. Seller agrees to use its best efforts to file promptly any
regulatory applications and notices required to be filed by it in connection
with the transaction.
ARTICLE 5.
REPRESENTATIONS AND WARRANTIES
5.1 REPRESENTATIONS AND WARRANTIES OF SELLER. Seller
hereby represents and warrants to Buyer as follows:
A. CORPORATE STANDING; AUTHORIZATION. Seller is a banking
corporation duly organized, validly existing and in good standing under the laws
of Kentucky and has full corporate power and authority to own or hold under
lease the properties it now owns or holds under lease and to carry on the
business presently being conducted by it. Neither the execution and delivery by
Seller of this Agreement, nor the consummation of the transactions contemplated
hereby, will result in, nor will cause, any violation of, or constitute a
default under, any provision of the Articles of Incorporation or Bylaws of
Seller, or of any lease, mortgage, note, bond, loan agreement, license,
judgment, order or other instrument or obligation to which Seller is a party or
is bound or to which Seller or any of its properties or assets are subject,
except as set forth on Schedule 5.1A hereto. The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby have been
duly authorized by all necessary corporate action on the part of Seller. This
Agreement has been duly executed and delivered by Seller and constitutes the
legal, valid and binding obligation of Seller, enforceable against it in
accordance with its terms. Seller has all requisite corporate power and
authority to enter into and to consummate the transactions contemplated by this
Agreement.
B. LEGAL PROCEEDINGS. Except as set forth on Schedule
5.1B hereto, there are no claims of any kind or any actions, suits, proceedings,
arbitrations or investigations pending or, to the knowledge of Seller,
threatened against or affecting Seller or any interest or right of Seller, as
such might relate to the Branch, or against or affecting the Assets.
C. COMPLIANCE WITH LAWS. Except as set forth on Schedule 5.1C
hereto, Seller is in compliance in all material respects with all statutes and
regulations applicable to the conduct of Seller's business at the Branch.
Neither Seller nor any of its predecessors has received notice from any agency
or department of federal, state or local government asserting a violation of any
law, regulation, ordinance, rule or order (whether executive, judicial,
legislative or administrative) that would have a material adverse effect on the
financial condition, results of operations, business or Assets of the Branch.
Seller holds all permits, licenses, exemptions, orders and approvals of all
governmental entities which are necessary to the operation of the Branch and is
in compliance with the terms thereof.
D. BROKERS. Buyer will not have any liability to any
broker, finder or financial advisor engaged by Seller or its affiliates in
connection with the negotiations relating to or the transactions contemplated by
this Agreement.
E. ASSETS. The Net Book Value of the Fixed Assets and Real
Property and Improvements as of December 31, 1996 was, and as of the Closing
Date will be, determined in accordance with generally accepted accounting
principles, consistently applied. Except as set forth on Schedule 5.1E hereto,
Seller has good and marketable title to (in the case of the Real Property and
Improvements, in fee simple) all of the Assets, free and clear of all
Encumbrances. Delivery to Buyer of the instruments of transfer of ownership
contemplated by this Agreement will vest good and marketable title to the Assets
in Buyer, free and clear of all Encumbrances. The current use of the Real
Property and Improvements fully complies with all applicable laws, regulations
and ordinances. Title to the Real Property and Improvements is insurable at
standard and customary rates without any exceptions, except for the Permitted
Exceptions. At Closing, all of the Real Property and Improvements and the Fixed
Assets will be in good condition and repair, ordinary wear and tear excepted,
and will be sufficient to enable Buyer to operate the Branch.
F. OPERATION. To the knowledge of Seller, there are no facts
or circumstances existing or threatened which would have a material adverse
effect on the present or future use of the Branch as a banking office. The
Branch and the current use thereof is in compliance with, and neither Seller nor
any of its predecessors has received notice nor has knowledge that any
governmental authority nor any employee or agent thereof considers the Branch to
violate or to have violated, fire, zoning, health, safety, building, hazardous
waste or environmental code or other ordinance, law or regulation or order of
any government or any agency, body or subdivision thereof, or any private
covenants, restrictions or easements. Except for the Permitted Exceptions,
neither Seller nor the Real Property and Improvements is subject to any other
agreement relating to the use of the Real Property and Improvements.
G. INSURANCE. All of the properties and assets of Seller at
the Branch are covered by effective insurance in amounts at least equal to their
fair market value and against such losses and risks as are generally insured
against by comparable businesses. All insurance policies and bonds maintained by
Seller with respect to the Assets are set out on Schedule 5.1G hereto. All of
such policies and bonds are in full force and effect and Seller has not received
any notice of premium increases or cancellations with respect to any of such
policies and bonds.
H. TAXES. All deposit, income, payroll, withholding,
property, excise, sales, use and transfer taxes relating to the Branch imposed
by the United States or by any state, municipality, subdivision or
instrumentality of the United States or by any other taxing authority which are
due and payable by Seller prior to the Closing have been paid in full, or will
be so paid prior to the Closing.
I. SERVICE CONTRACTS. Except as set forth on Schedule
5.1.I hereto, Seller has no contracts or other agreements relating to the
rendering by third parties of services to the Branch.
J. DEPOSITS. The deposit records of Seller accurately reflect
the Deposits and are and shall be sufficient to enable Buyer to conduct a
banking business with respect to the Branch in accordance with safe and sound
banking practices customary in the banking industry. The Deposits have been
established and maintained, and transactions affecting the Deposits have been
processed, in accordance with applicable laws and regulations. There are no
special agreements between Seller and any depositor at the Branch relating to
the Deposits. Since December 31, 1996, Seller has not transferred any of the
Deposits held by Seller at the Branches to any of Seller's other offices, or to
any banking office of any affiliate of Seller, except at the express unsolicited
request of the depositor in the ordinary course of business.
M. LOANS. All of the Loans have been made for good, valuable
and adequate consideration in the ordinary course of business of Seller, are
evidenced by notes or other evidences of indebtedness that are true and genuine
and are, to the knowledge of Seller, collectible in full. There are no uncured
violations or violations with respect to which refunds or restitution may be
required with respect to the Loans and no alleged violations have been cited in
any compliance report to Seller as a result of examination by any regulatory
authority and the loan documentation with respect to the Loans complies in all
material respects with all applicable laws and regulations. No Loan has been
adversely classified in any regulatory examination or by Seller's internal
classification system and no Loan is 90 days or more past due, has been
restructured or is classified as nonaccrual. Each of the Loans is collateralized
by Deposits.
K. ENVIRONMENTAL MATTERS. The Real Property and Improvements
are in material compliance with all applicable federal, state and local laws,
rules, regulations, ordinances and requirements relating to the environment
("Environmental Laws"). Except as set forth on Schedule 5.1K hereto, and to the
knowledge of Seller [i] no "Hazardous Wastes" (as hereinafter defined) have ever
been generated, transported, treated, stored, or disposed of on any of the Real
Property and Improvements or the Branch, and [ii] Seller has not transported or
disposed of or caused or permitted any person to transport or dispose of any
Hazardous Wastes on the Real Property and Improvements or the Branch other than
in accordance with all Environmental Laws. There are no actions, suits or
proceedings, or demands, claims, notices or investigations (including without
limitation notices, demand letters or requests for information from any
environmental agency) instituted or pending, or, to the knowledge of Seller,
threatened, alleging violation of any Environmental Laws relating to the Real
Property and Improvements or the Branch. Without limiting the generality of the
foregoing, and to the knowledge of Seller no asbestos, PCBs or other Hazardous
Wastes or any petroleum product or constituents thereof is present on, in or
under any of the Real Property and Improvements or the Branch. "Hazardous
Wastes" for purposes of this Agreement shall include, without limitation: [i]
hazardous substances or hazardous wastes, as those terms are defined by the
Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C.
Section 9601 et seq., the Resource Conservation and Recovery Act, 42 U.S.C.
Section 6901 et seq., and any other applicable federal, state or local law,
rule, regulation, ordinance or requirement, all as amended or hereafter amended;
[ii] petroleum, including without limitation crude oil or any fraction thereof
which is liquid at standard conditions of temperature and pressure (60 degrees
Fahrenheit and 14.7 pounds per square inch absolute); [iii] any radioactive
material , including without limitation any source, special nuclear, or
by-product material as defined in 42 U.S.C. Section 2011 et seq.; and [iv]
asbestos or any asbestiform minerals in any form or condition.
L. CONSENTS. Except as set forth on Schedule 5.1A
hereto, no filing with or notification, consent, approval or authorization of
any governmental or non-governmental entity, is required for the execution,
delivery and performance by Seller of this Agreement and the transactions
contemplated hereby, other than the approvals of the Office of Thrift
Supervision, the Kentucky Department of Financial Institutions and the FDIC.
M. EMPLOYEES. SCHEDULE 5.1M hereto contains a true
and complete list of all employees employed by Seller at the Branch, their
current titles and/or positions and the rate of compensation currently paid to
each of them.
N. FULL DISCLOSURE. No representation or warranty of
Seller contained in this Agreement and no statement of Seller contained in this
Agreement or in any instrument furnished or to be furnished to Buyer hereunder
contains or will contain any untrue statement of a material fact or omits or
will omit to state any material fact necessary to make the statements contained
herein or therein not misleading.
5.2 REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer
hereby represents and warrants to Seller that:
A. CORPORATE STANDING; AUTHORIZATION. Buyer is a federal
savings bank duly organized, validly existing and in good standing under the
laws of the United States and has full corporate power and authority to own or
hold under lease the properties is now owns or holds under lease and to carry on
the business presently being conducted by it. Neither the execution and delivery
by Buyer of this Agreement nor the consummation of the transactions contemplated
hereby will result in, nor will cause, any breach or violation of, or constitute
a default under, any provision of the Charter or Bylaws of Buyer, or of any
lease, mortgage, note, bond, loan agreement, license, judgment, order or other
instrument or obligation to which Buyer is a party or is bound or to which it or
any of its assets is subject. The execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby has been duly
authorized by all necessary corporate action on the part of Buyer. This
Agreement has been duly executed and delivered by Buyer and constitutes the
legal, valid and binding obligation of Buyer, enforceable against it in
accordance with its terms. Buyer has all requisite corporate power and authority
to enter into and to consummate the transactions contemplated by this Agreement.
B. BROKERS. Neither Buyer, nor any of its shareholders,
officers, directors, or employees, has employed any broker, finder or financial
advisor or incurred any liability for fees or commissions in connection with the
negotiations relating to or the transactions contemplated by this Agreement.
C. CONSENTS. Except as set forth on Schedule 5.2C
hereto, no filing with or notification, consent, approval or authorization of
any governmental or non-governmental entity, is required for the execution,
delivery and performance by Buyer of this Agreement and the transactions
contemplated hereby, other than the approvals of the Office of Thrift
Supervision, the Kentucky Department of Financial Institutions, and the Federal
Deposit Insurance Corporation.
D. CONSUMMATION OF TRANSACTIONS CONTEMPLATED BY
AGREEMENT. Buyer has no knowledge of any fact or circumstance that would
prevent it from consummating the transactions contemplated by this Agreement or
from obtaining the regulatory approvals necessary for it to consummate the
transactions contemplated by this Agreement.
E. FULL DISCLOSURE. No representation or warranty of
Buyer contained in this Agreement and no statement of Buyer contained in this
Agreement or in any instrument furnished to Seller hereunder contains or will
contain any untrue statement of a material fact or omits or will omit to state
any material fact necessary to make the statements contained herein or therein
not misleading.
ARTICLE 6.
CONDITIONS PRECEDENT
6.1 CONDITIONS TO OBLIGATION OF SELLER. The obligations of
Seller to consummate the transactions contemplated hereby are subject to the
satisfaction of the following conditions precedent on or before the Closing
Date, any of which may be waived by Seller:
A. The representations and warranties of Buyer set forth in
Sectiony5.2 of this Agreement shall be true and correct in all material respects
as of the date of this Agreement and as of the Closing Date as if made on the
Closing Date, and Buyer shall have furnished to Seller a certificate of an
executive officer of Buyer to that effect;
B. Buyer in all material respects shall have performed
and observed its obligations and covenants as set forth in this Agreement prior
to or on the Closing Date and shall have delivered to Seller a certificate of an
executive officer of Buyer to that effect;
C. Receipt of all permits, consents, approvals and
authorizations from federal and state governmental authorities and regulatory
agencies necessary to effect the transactions contemplated herein (including the
expiration of all applicable waiting periods); and
D. There shall not be threatened, instituted or pending any
action or proceeding before any domestic or foreign court or governmental agency
or other regulatory or administrative agency or commission, or by any other
person [i]ychallenging the transactions contemplated by this Agreement or the
terms thereof or [ii]yseeking to prohibit the transactions contemplated by this
Agreement, which, in the opinion of Seller's counsel, has a reasonable
probability of success.
6.2 CONDITIONS TO OBLIGATIONS OF BUYER. The obligations of
Buyer to consummate the transactions contemplated by this Agreement are subject
to the satisfaction of the following conditions precedent on or before the
Closing Date, any of which may be waived by Buyer:
A. The representations and warranties of Seller set forth in
Section 5.1 of this Agreement shall be true and correct in all material respects
as of the date of this Agreement and as of the Closing Date as if made on the
Closing Date, and Seller shall have furnished to Buyer a certificate executed by
an executive officer of Seller to that effect;
B. Seller in all material respects shall have performed
and observed its obligations and covenants as set forth in this Agreement prior
to or at the Closing Date and shall have delivered to Buyer a certificate
executed by an executive officer of Seller to that effect;
C. Receipt of all permits, consents, approvals and
authorizations from federal and state governmental authorities and regulatory
agencies necessary to effect the transactions contemplated hereby and the
operation of the Branch by Buyer (including the expiration of all applicable
waiting periods), on terms and conditions which are satisfactory to Buyer (other
than standard terms and conditions);
D. Buyer shall have received (at its sole cost and expense)
with respect to the Real Property and Improvements: [i] a Level 1 site
assessment from a reputable environmental engineering firm, the results of which
are satisfactory to Buyer in its good faith judgment; [ii] current surveys
sufficient in detail to permit deletion of the survey exception from any owner's
policy of title insurance obtained by Buyer; and [iii] an owner's policy of
title insurance issued by a title insurer satisfactory to Buyer in an amount at
least equal to the Net Book Value insuring title to such real property to be in
Buyer as of the Closing, subject only to the Permitted Exceptions;
E. There shall not be threatened, instituted or pending any
action or proceeding before any domestic or foreign court or governmental agency
or other regulatory or administrative agency or commission, or by any other
person [i] challenging the transactions contemplated by this Agreement or the
terms thereof or [ii] seeking to prohibit the transactions contemplated by this
Agreement, which, in the opinion of Buyer's counsel, has a reasonable
probability of success; and
F. There shall have been no material adverse change in the
business, condition, or operations of the Branch or the ability to conduct
banking operations at the Branch, or in the physical condition of the Real
Property and Improvements from the physical condition that exists as of the date
of this Agreement, or in the quality of the Loans from the quality that exists
as of the date of this Agreement.
ARTICLE 7.
INDEMNIFICATION
7.1 SURVIVAL. The representations and warranties made by the
parties to this Agreement, and their respective obligations to be performed
under the terms hereof at, prior to, or after the Closing, shall survive the
Closing.
7.2 INDEMNITY OF BUYER. Seller will indemnify, defend, and
hold harmless Buyer against and in respect of any and all claims, demands,
losses, costs, expenses, obligations, liabilities, damages, recoveries and
deficiencies, including interest, penalties and reasonable attorneys' fees, that
Buyer incurs or suffers, which arise, result from or relate to [i] any breach
of, or failure by Seller to perform, any of the representations, warranties,
covenants, or agreements in this Agreement or in any schedule, certificate,
exhibit or other instrument furnished by Seller pursuant to this Agreement; [ii]
the operation of the Branch prior to the Closing; [iii] any violation of any
federal, state or local laws or regulations in connection with the origination
of the Loans or Deposits or Seller's acquisition of the Assets including,
without limitation, any failure by Seller or its predecessors to properly and
timely make disclosures to customers required by such laws or regulations; and
[iv] any liability of Seller, whether or not relating to the Branch, that is not
expressly assumed by Buyer under this Agreement. The right of indemnity of Buyer
as set forth in this Section 7.2 shall be in addition to all other rights or
remedies which Buyer may have against Seller at law or in equity. Buyer will,
promptly upon receiving notice of a claim against it by a third party for which
indemnification is sought under this Agreement, notify Seller of such claim. If
Seller agrees that it is liable to provide complete indemnification for any such
claim under this Agreement, Seller shall have the right to conduct, at its
expense, the defense of such claim and Buyer shall not settle such claim except
with the consent of Seller, which consent shall not be unreasonably withheld.
Failure to give prompt notice of any claim by a third party shall bar
indemnification for such claim under this Agreement only to the extent that the
indemnifying party was prejudiced by such failure.
7.3 INDEMNITY OF SELLER. Buyer will indemnify, defend, and
hold harmless Seller against and in respect of any and all claims, demands,
losses, costs, expenses, obligations, liabilities, damages, recoveries and
deficiencies, including interest, penalties and reasonable attorneys' fees, that
Seller incurs or suffers, which arise, result from or relate to [i] any breach
of, or failure by Buyer to perform, any of the representations, warranties,
covenants, or agreements in this Agreement or in any schedule, certificate,
exhibit or other instrument furnished by Buyer pursuant to this Agreement, and
[ii] the operation of the Branch after the Closing. The right of indemnity of
Seller as set forth in this Section 7.3 shall be in addition to all other rights
or remedies which Seller may have against Buyer at law or in equity. Seller
will, promptly upon receiving notice of a claim against it by a third party for
which indemnification is sought under this Agreement, notify Buyer of such
claim. If Buyer agrees that it is liable to provide complete indemnification for
any such claim under this Agreement, Buyer shall have the right to conduct, at
its expense, the defense of such claim and Seller shall not settle such claim
except with the consent of Buyer, which consent shall not be unreasonably
withheld. Failure to give prompt notice of any claim by a third party shall bar
indemnification for such claim under this Agreement only to the extent that the
indemnifying party was prejudiced by such failure.
ARTICLE 8.
TERMINATION
8.1 TERMINATION. This Agreement may be terminated as
follows:
A. This Agreement may be terminated by the mutual
agreement of the parties hereto.
B. Buyer may, in addition to other remedies which may be
available, upon prior written notice, terminate this Agreement (i) within thirty
(30) days following the date of this Agreement, if Buyer determines, in its sole
discretion, that it is not satisfied with the terms, conditions or amounts of
the Deposits and/or the Loans and/or the Real Property and Improvements, or (ii)
if Seller materially breaches any representation or warranty or materially
breaches any covenant in this Agreement or upon the failure and nonwaiver of any
condition precedent set out in Section 6.2 unless, in the case of a material
breach of a covenant or failure of a condition, within thirty (30) days after
written notice from Buyer, Seller shall have cured such breach or failure.
C. Seller may, in addition to other remedies which may be
available, upon prior written notice, terminate this Agreement in the event
Buyer breaches any representation or warranty or materially breaches any
covenant in this Agreement or upon the failure and nonwaiver of any condition
precedent set out in Section 6.1 unless, in the case of a material breach of a
covenant or failure of a condition, within thirty (30) days after written notice
from Seller, Buyer shall have cured such breach or failure.
D. Unless the Closing Date shall have occurred on or before
September 15, 1997, the Board of Directors of Buyer or Seller may terminate this
Agreement and declare it of no further effect.
8.2 Declaration. Any declaration of termination under this
Article 8 by Buyer or Seller shall be pursuant to resolution of its Board of
Directors or by executive officers thereof duly authorized by their respective
Board of Directors to make such a declaration, shall be made by written notice
given to the other party setting forth the grounds for the termination,
including, if applicable, the alleged material misrepresentation, breach or
failure, and, unless, in the case of a material breach of a covenant or a
failure of a condition, such material breach or failure is timely cured, shall
have the effect of terminating this Agreement effective upon the delivery of
such written notice or the expiration of any applicable cure period, whichever
is later, whereupon the same shall have no further effect. Notwithstanding the
foregoing, no termination of this Agreement shall affect the covenants set forth
in Section 11.6 relating to expenses, which shall survive any such termination,
and, except as otherwise expressly provided herein, no termination of this
Agreement on the grounds of a material misrepresentation or uncured material
breach of any covenant contained herein shall relieve the breaching party from
any liability for such uncured material misrepresentation or uncured material
breach of any covenant or agreement contained herein giving rise to such
termination.
ARTICLE 9.
NONCOMPETITION
9.1 Covenant Against Competition. Seller covenants and agrees
that, for a period of one year after the Closing Date, it shall not [i] engage
in the financial services industry in any manner whatsoever or compete with the
Branch within Xxxxxxxx County, Kentucky; [ii] solicit or cause or attempt to
cause any customer or depositor of the Branch to withdraw his, her or its
banking affiliation from the Branch; [iii] utilize its lists of the names and
addresses of the depositors at the Branch in order to solicit any deposits from
those depositors (unless the depositor shall remain a customer of Seller after
the Closing); or [iv] directly or indirectly solicit for employment any of
Buyer's employees at the Branch or induce or attempt to cause or induce any
person now or hereafter employed at the Branch to terminate such employment. In
the event that any provision hereof relating to the time period and/or the scope
of restriction and/or related aspects shall be declared by a court of competent
jurisdiction to exceed the maximum restrictiveness such court deems reasonable
and enforceable, the time period and/or scope of restriction and/or related
aspects deemed reasonable and enforceable by the court shall become and
thereafter be the maximum restriction in such regard, and the restriction shall
remain enforceable to the fullest extent deemed reasonable by such court.
9.2 REMEDIES FOR BREACH. In the event of a breach or
threatened breach of any of the covenants in Section 9.1, Buyer shall have the
right to seek monetary damages for any past breach and equitable relief,
including specific performance by means of an injunction to prevent or restrain
any such breach.
ARTICLE 10.
OTHER AGREEMENTS
10.1 RETURNED ITEMS. If Buyer is charged for any Returned
Item, as defined below, Buyer will use its best efforts to obtain reimbursement
from the account to which, or from the party to whom, the Returned Item was
credited. If there are sufficient funds in the account to which such Returned
Item was credited or any other accounts on deposit at the Branch or at any other
branch office of Buyer standing in the name of the party liable for such item,
Buyer will debit any or all of such accounts an amount equal in the aggregate to
the Returned Item plus a $20.60 processing fee for each Returned Item. If those
accounts do not contain funds sufficient to reimburse Buyer fully, Seller will,
upon notice from Buyer, immediately repay to Buyer the amount of the Returned
Item and Buyer will assign the Returned Item to Seller for collection. "Returned
Item" as used in this Section 10.1, shall mean any item that was credited for
deposit to or cashed against an account at the Branch prior to the Closing and
returned unpaid on or within twelve (12) months after the Closing.
10.2 CHECK CLEARING. Seller agrees to handle in accordance
with normal and standard clearing procedures customary in banking any check
clearing items drawn on deposit accounts transferred to Buyer at the Closing for
a period of up to 180 days following the Closing Date. The parties agree that
after 180 days following the Closing Date, customers having deposit accounts
assumed by Buyer at the Closing will be held accountable for using checks naming
Buyer as drawee, and Seller will not be obligated to honor any check clearing
items drawn on such accounts .
10.3 ACH DEPOSITS. Buyer will use its best efforts to have all
direct arrangements transferred to it from Seller within 180 days after the
Closing Date. Seller will provide Buyer, within 30 days prior to Closing, a list
of its ACH entries for electronic transfer accounts domiciled at the Branch
together with all supporting documentation, including the name, address and
identification or account number of each ACH originator and each deposit account
customer affected. Promptly upon receipt of such list, Buyer agrees to notify
each ACH originator and deposit account customer identified of the proposed
transfer and assumption of the deposit account which is the subject of the
direct deposit or credit arrangement. Seller will update the information on such
list as of the close of business on the Closing Date and deliver to Buyer such
updated information within seven (7) days following the Closing Date. After the
Closing for a period of 180 days, Seller will, on a daily basis, remit and
transfer to Buyer all ACH entries and corresponding direct deposits intended for
accounts to be assumed hereunder.
10.4 BACKUP WITHHOLDING. Any amounts required by any
governmental agencies to be withheld from any of the Deposits (the "Withholding
Obligations") will be handled as follows:
A. Any Withholding Obligations required to be remitted
to the appropriate governmental agency prior to the Closing will be withheld and
remitted by Seller.
B. Any Withholding Obligations required to be remitted to the
appropriate governmental agency on or after the Closing will be remitted by
Buyer. At the Closing, Seller will remit to Buyer all sums withheld by Seller
pursuant to Withholding Obligations which funds are or may be required to be
remitted to governmental agencies on or after the Closing.
10.5 INTEREST REPORTING. Seller shall report from January 1,
1997 through the Closing Date and Buyer shall report from the day after the
Closing Date through the end of the calendar year all interest credited to,
interest withheld from and early withdrawal penalties charged to the Deposits.
Said reports shall be made to the holders of these accounts and to the
applicable federal and state regulatory agencies. If as a result of the transfer
of books and records required hereunder, Seller is unable to report interest as
contemplated hereby, Seller and Buyer will cooperate to arrive at a mutually
acceptable alternative arrangement for the reporting of interest.
10.6 NOTICES TO DEPOSITORS. Seller shall use its best efforts
to provide Buyer an intermediate customer list of the Deposits to be assumed,
together with one (1) set of mailing labels, as of month-end prior to the
Closing Date. On the Closing Date, Seller shall provide a final customer list on
the assumed Deposits. At least fourteen (14) days before the Closing (or on such
earlier or later date as may be required by law), Seller shall mail notice (the
"Notification") to the holders of the Deposits to be assumed that, subject to
the closing requirements, Buyer will be assuming the liability of the Deposits.
The Notification will be based on the list and labels referred to above and a
log maintained at the Branch of the new accounts opened since the date of said
list. Seller shall provide Buyer with a copy of said log up to the date of
Seller's mailing. After Seller has mailed the Notification, Buyer shall send
notification to the same holders setting out the details of its administration
of the assumed accounts and may, with Seller's prior written consent (which
shall not be unreasonably withheld), communicate with and mail information,
brochures, bulletins, press releases and other communications to depositors of
the Branch concerning the business and operations of Buyer. Each party shall
obtain the other party's approval of its notification letter(s) and any other
communications to depositors of the Branch regarding the transactions
contemplated hereby. The Notification may be made jointly if [i] it is permitted
by applicable statutes and regulations and [ii] Seller and Buyer can agree to
the content thereof.
10.7 DATA PROCESSING. In the event Buyer is unable to
completely convert the data processing functions of the Branch to its system on
or prior to the Closing Date, Seller agrees that it will use its best efforts to
negotiate in good faith with the current servicer of the data processing
functions of the Branch for the provision of data processing services at the
Branch until such conversion by Buyer is complete.
10.8 EMPLOYEES. The parties acknowledge that Buyer may, but
shall be under no obligation, expressed or implied, to offer employment or
employ any of the employees of the Branch at or following the Closing. Within 30
days of the date of this Agreement, Buyer will identify for Seller any of the
employees of the Branch Buyer is interested in employing upon the Closing, and
Seller will make available to Buyer for employment those employees who desire
employment by Buyer following the Closing.
ARTICLE 11.
GENERAL PROVISIONS
11.1 PRESS RELEASES. All parties to this Agreement agree that
any press release or other public announcement by either party pertaining to the
transactions contemplated hereby shall be coordinated with the other party
hereto; provided, however, that nothing contained herein shall prohibit either
party from making any disclosure which its counsel deems necessary by law.
11.2 LAW AND SECTION HEADINGS. This Agreement shall be
construed and interpreted in accordance with the laws of the Commonwealth of
Kentucky. Section headings are used in this Agreement for convenience only and
are to be ignored in the construction of the terms of this Agreement.
11.3 MODIFICATIONS. No modification, extension, renewal,
rescission, termination or waiver of any of the provisions contained herein or
any future representation, promise or condition in connection with the subject
matter hereof, shall be binding upon any of the parties unless made in writing
and duly executed by the parties and authorized by resolution of their
respective Boards of Directors or their respective officers authorized by their
respective Boards of Directors.
11.4 SEVERABILITY. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
the remaining provisions.
11.5 NOTICES. All notices hereunder shall be in writing and
shall be deemed to have been given or made when delivered or mailed, first
class, registered or certified mail, postage prepaid, addressed as follows,
until notice of another address or additional addresses has been received by the
other parties:
If to Buyer, to:
United Commonwealth Bank, FSB
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxx, President
With a copy to:
CBT Corporation
000 Xxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, President
Xxxxxxx X. Xxxxxx, Esq.
XXXXX, XXXXXXX & XXXXX
0000 Xxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
If to Seller, to:
Republic Bank and Trust Company
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
11.6 EXPENSES; RISK OF LOSS. Each of the parties hereto will
pay its own fees and expenses incurred in connection with the transactions
contemplated by this Agreement. Until Closing, the risk of loss to the Assets
shall remain with Seller.
11.7 COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which shall be an original, but such
counterparts shall together constitute one and the same instrument.
11.8 TIME OF ESSENCE; BEST EFFORTS. Time is of the essence to
the performance of the obligations set forth in this Agreement. Seller and Buyer
each agree to use their respective best efforts to obtain the satisfaction of
the conditions to their respective obligations specified herein, and to advise
the other party hereto in writing, as to any unusual delays or impediments in
obtaining the same.
11.9 CLOSING. At the Closing, each party shall execute and
deliver all documents required by this Agreement, and such further documents as
the other party shall reasonably request in order to satisfy the fulfillment of
each party's agreements and undertakings hereunder.
11.10 PARTIES IN INTEREST; ASSIGNMENT; THIRD PARTY RIGHTS. All
covenants and agreements contained in this Agreement by or on behalf of any of
the parties hereto shall bind and inure to the benefit of their respective
successors and permitted assigns. No party to this Agreement may however, assign
its rights hereunder or delegate its obligations hereunder to any other person
or entity without the express prior written consent of the other parties hereto.
It is the intention of the parties that nothing in this Agreement shall be
deemed to create any right with respect to any person or entity not a party to
this Agreement.
11.11 ENTIRE AGREEMENT; WAIVER. This Agreement including the
Schedules and Exhibits hereto constitutes and contains the entire agreement of
Seller and Buyer with respect to the subject matter hereof and supersedes any
prior agreement between the parties hereto, whether written or oral. The waiver
of a breach of any term or condition of this Agreement must be in writing signed
by the party sought to be charged with such waiver and such waiver shall not be
deemed to constitute the waiver of any other breach of the same or of any other
term or condition of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their duly authorized officers as of the date first
above written.
UNITED COMMONWEALTH BANK, FSB
By /S/
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Title
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REPUBLIC BANK AND TRUST COMPANY
By /S/
------------------
Title
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AMENDMENT NO. 1 TO
AGREEMENT TO PURCHASE ASSETS AND ASSUME LIABILITIES
This Amendment No. 1 ("Amendment"), dated May 21 , 1997, amends
the AGREEMENT TO PURCHASE ASSETS AND ASSUME LIABILITIES ("Agreement"), dated
April 1, 1997, by and between UNITED COMMONWEALTH BANK, FSB, a federal savings
bank ("Buyer"), and REPUBLIC BANK AND TRUST COMPANY, a Kentucky banking
corporation ("Seller").
Except as otherwise provided herein, capitalized terms used in
this Amendment have the meanings ascribed to them in the Agreement.
WHEREAS, the parties mutually desire to modify the Loans to be
purchased by Buyer pursuant to the Agreement;
NOW, THEREFORE, in consideration of the foregoing and other
good and valuable consideration, Buyer and Seller agree as follows:
1. AMENDMENT TO ARTICLE 1 AND EXHIBIT C. Exhibit C of
the Agreement is hereby amended and restated to read in its entirety as set
forth in Exhibit C attached hereto.
The term "Assets" as used in the Agreement shall, in each
case, mean the Cash on Hand, Fixed Assets, the Real Property and Improvements,
the Loans and the Records.
The term "Loans" as used in the Agreement shall, in each case,
mean the loans identified on Exhibit C, as so amended, together with all accrued
but unpaid interest thereon, and all right, title and interest of Seller in and
to the collateral held as security for the Loans, and any other right, title or
interest related in any way to the Loans.
2. REAFFIRMATION OF OTHER TERMS AND CONDITIONS. Except as
modified by this Amendment, all other terms and conditions of the Agreement, as
in effect prior to the execution of this Amendment, shall remain in full force
and effect and the same are hereby reaffirmed and ratified as if fully set forth
herein.
IN WITNESS WHEREOF, Buyer and Seller have caused this
Amendment No. 1 to the Agreement to be signed by their respective officers
thereunto duly authorized, on this 21st day of May, 1997.
UNITED COMMONWEALTH BANK, FSB
By /S/
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REPUBLIC BANK AND TRUST COMPANY
By /S/
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------------------
The exhibits to the Agreement have been omitted from this filing in reliance on
Rule 601(b)(2) of Regulation S-K. Republic Bancorp, Inc. will furnish
supplemental a copy of any omitted exhibit to the Securities and Exchange
Commission upon request.
