PURCHASE AND ASSUMPTION AGREEMENT
Among
HUNTINGTON BANCSHARES INCORPORATED,
THE HUNTINGTON NATIONAL BANK,
FIRST UNITED CORPORATION,
and
FIRST UNITED BANK & TRUST
PURCHASE AND ASSUMPTION AGREEMENT
TABLE OF CONTENTS
ARTICLE I - THE ASSETS.........................................................1
SECTION 1.1. BANKING CENTERS..............................................1
ARTICLE II - TRANSFER OF ASSETS AND LIABILITIES................................2
SECTION 2.1. TRANSFERRED ASSETS...........................................2
SECTION 2.2. PURCHASE PRICE...............................................4
SECTION 2.3. DEPOSIT LIABILITIES..........................................6
SECTION 2.4. LOANS TRANSFERRED............................................9
SECTION 2.5. SAFE DEPOSIT BUSINESS.......................................10
SECTION 2.6. EMPLOYEE MATTERS............................................11
SECTION 2.7. RECORDS AND DATA PROCESSING, ETC............................12
SECTION 2.8. SECURITY....................................................13
SECTION 2.9. TAXES AND FEES; PRORATION OF CERTAIN EXPENSES...............13
SECTION 2.10. TITLE TO REAL PROPERTY......................................14
SECTION 2.11. ENVIRONMENTAL MATTERS.......................................15
SECTION 2.12. BROKERAGE ACCOUNT AGREEMENTS................................16
ARTICLE III - CLOSING AND EFFECTIVE TIME......................................17
SECTION 3.1. EFFECTIVE TIME..............................................17
SECTION 3.2. CLOSING.....................................................18
SECTION 3.3. POST CLOSING ADJUSTMENTS....................................20
ARTICLE IV - INDEMNIFICATION..................................................21
SECTION 4.1. HUNTINGTON'S INDEMNIFICATION OF PURCHASERS..................21
SECTION 4.2. PURCHASERS' INDEMNIFICATION OF SELLERS......................22
SECTION 4.3. CLAIMS FOR INDEMNITY........................................22
SECTION 4.4. LIMITATIONS ON INDEMNIFICATION..............................23
ARTICLE V - REPRESENTATIONS AND WARRANTIES OF SELLERS.........................23
SECTION 5.1. CORPORATE ORGANIZATION......................................23
SECTION 5.2. NO VIOLATION................................................23
SECTION 5.3. CORPORATE AUTHORITY.........................................24
SECTION 5.4. ENFORCEABLE AGREEMENT.......................................24
SECTION 5.5. NO BROKERS..................................................24
SECTION 5.6. PERSONAL PROPERTY...........................................24
SECTION 5.7. REAL PROPERTY...............................................24
SECTION 5.8. CONDITION OF PROPERTY.......................................25
SECTION 5.9. EMPLOYEES...................................................26
SECTION 5.10. ASSUMED CONTRACTS...........................................26
SECTION 5.11. LOANS.......................................................26
SECTION 5.12. ENVIRONMENTAL MATTERS.......................................27
SECTION 5.13. DEPOSIT LIABILITIES.........................................28
SECTION 5.14. BOOKS, RECORDS, DOCUMENTATION, ETC..........................29
SECTION 5.15. LITIGATION..................................................29
SECTION 5.16. TAX MATTERS.................................................29
SECTION 5.17. LIMITATION AND SURVIVAL OF REPRESENTATIONS AND WARRANTIES...29
ARTICLE VI - REPRESENTATIONS AND WARRANTIES OF PURCHASERS.....................30
SECTION 6.1. CORPORATE ORGANIZATION......................................30
SECTION 6.2. NO VIOLATION................................................30
SECTION 6.3. CORPORATE AUTHORITY.........................................30
SECTION 6.4. ENFORCEABLE AGREEMENT.......................................30
SECTION 6.5. NO BROKERS..................................................30
SECTION 6.6. SURVIVAL OF REPRESENTATIONS AND WARRANTIES..................31
ARTICLE VII - OBLIGATIONS OF PARTIES PRIOR TO AND AFTER EFFECTIVE TIME........31
SECTION 7.1. FULL ACCESS.................................................31
SECTION 7.2. DELIVERY OF MAGNETIC MEDIA RECORDS..........................31
SECTION 7.3. APPLICATION FOR APPROVAL....................................32
SECTION 7.4. CONDUCT OF BUSINESS; MAINTENANCE OF PROPERTIES..............32
SECTION 7.5. NO SOLICITATION BY SELLERS..................................33
SECTION 7.6. EFFORTS TO CONSUMMATE; FURTHER ACTIONS......................33
SECTION 7.7. FEES AND EXPENSES...........................................34
SECTION 7.8. BREACHES WITH THIRD PARTIES.................................34
SECTION 7.9. OPERATIONS..................................................34
SECTION 7.10. DESTRUCTION AND CONDEMNATION................................36
SECTION 7.11. INSURANCE...................................................36
SECTION 7.12. PUBLIC ANNOUNCEMENTS........................................36
SECTION 7.13. TAX REPORTING...............................................36
SECTION 7.14. TRANSITIONAL MATTERS........................................37
ARTICLE VIII - CONDITIONS TO PURCHASERS' OBLIGATIONS..........................37
SECTION 8.1. REPRESENTATIONS AND WARRANTIES TRUE.........................37
SECTION 8.2. OBLIGATIONS PERFORMED.......................................37
SECTION 8.3. NO ADVERSE LITIGATION.......................................37
SECTION 8.4. REGULATORY APPROVAL.........................................37
ARTICLE IX - CONDITIONS TO SELLERS' OBLIGATIONS...............................38
SECTION 9.1. REPRESENTATIONS AND WARRANTIES TRUE.........................38
SECTION 9.2. OBLIGATIONS PERFORMED.......................................38
SECTION 9.3. NO ADVERSE LITIGATION.......................................38
SECTION 9.4. REGULATORY APPROVAL.........................................38
SECTION 9.5. LESSORS' CONSENTS...........................................38
ARTICLE X - TERMINATION.......................................................39
SECTION 10.1. METHODS OF TERMINATION......................................39
SECTION 10.2. PROCEDURE UPON TERMINATION..................................40
SECTION 10.3. PAYMENT OF EXPENSES.........................................40
ARTICLE XI - MISCELLANEOUS PROVISIONS.........................................40
SECTION 11.1. ASSIGNMENT TO SUBSIDIARIES..................................40
SECTION 11.2. AMENDMENT AND MODIFICATION..................................40
SECTION 11.3. WAIVER OR EXTENSION.........................................41
SECTION 11.4. ASSIGNMENT..................................................41
SECTION 11.5. CONFIDENTIALITY.............................................41
SECTION 11.6. ADDRESSES FOR NOTICES, ETC..................................41
SECTION 11.7. COUNTERPARTS................................................42
SECTION 11.8. HEADINGS....................................................42
SECTION 11.9. GOVERNING LAW...............................................42
SECTION 11.10. SOLE AGREEMENT..............................................42
SECTION 11.11. PARTIES IN INTEREST.........................................43
SECTION 11.12 CALCULATION OF DATES AND DEADLINES..........................43
PURCHASE AND ASSUMPTION AGREEMENT
THIS PURCHASE AND ASSUMPTION AGREEMENT (this "Agreement") is entered into
as of February 13, 2003, by and between HUNTINGTON BANCSHARES INCORPORATED, a
Maryland corporation having its principal offices in Columbus, Ohio
("Huntington"); THE HUNTINGTON NATIONAL BANK, a national banking association
having its principal offices in Columbus, Ohio ("HNB"); FIRST UNITED
CORPORATION, a Maryland corporation having its principal offices in Oakland,
Maryland ("First United"); and First United Bank & Trust, a Maryland state
chartered commercial bank having its principal offices in Oakland, Maryland
("First United Bank").
Recitals
A. Huntington, by its own actions and through the actions of HNB
(Huntington and HNB being hereinafter referred to as "Sellers"), wishes to
divest itself of certain assets, deposits, and other liabilities.
B. First United, by its own actions and through the actions of First United
Bank (First United and First United Bank being hereinafter referred to as
"Purchasers"), wishes to purchase such assets and assume such liabilities upon
the terms and conditions set forth in this Agreement.
Agreement
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NOW, THEREFORE, in consideration of the premises and mutual agreements
hereinafter set forth, Sellers and Purchasers agree as follows:
ARTICLE I - THE ASSETS
Section 1.1. Banking Centers.
Purchasers shall purchase from Sellers the "Transferred Assets" (as defined in
Section 2.1 below), and assume certain liabilities assigned to the branch
banking offices and commercial loan center of Sellers identified on Exhibit 1.1
(each, a "Banking Center" and, collectively, the "Banking Centers").
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ARTICLE II - TRANSFER OF ASSETS AND LIABILITIES
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Section 2.1. Transferred Assets.
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(a) As of the "Effective Time" (as defined in Section 3.1 below) and upon the
terms and conditions set forth herein, Sellers will sell, assign, transfer,
convey, and deliver to Purchasers or, solely with respect to paragraph
2.1(a)(6) below, Purchasers' assignees, and Purchasers will purchase from
Sellers, all of Sellers' right, title, and interest in and to the following
assets located at or attributed to the Banking Centers, except as otherwise
excluded from sale pursuant to the provisions of paragraph 2.1(b) below
(collectively, the "Transferred Assets"):
(1) all of Sellers' transferable right, title, and interest in and to all
real estate and improvements thereon located at the Banking Centers,
but not including any leasehold estates covered by item (3) below,
together with all assignable rights and appurtenances pertaining
thereto (the "Real Property");
(2) the furniture, fixtures, leasehold improvements, equipment, and other
tangible personal property located on or affixed to the Real Property
or located at the leased Banking Center location, including, any of
such items on order at the Closing or subject to the terms of any
Equipment Leases (collectively, the "Personal Property");
(3) all assignable leases affecting the Banking Centers, including the
lease of real property where Sellers are the lessee associated with
the Martinsburg Main Banking Center (the "Real Property Lease"), and
all assignable leases for equipment and the free standing ATM at Old
Courthouse Square Shopping Center, Martinsburg, West Virginia
(collectively, the "Equipment Leases"), and those assignable,
stand-alone software licenses and leases acceptable to Purchasers (the
"Software Licenses");
(4) all safe deposit contracts and leases for the safe deposit boxes
(exclusive of contents) located at the Banking Centers as of the
Effective Time (the "Safe Deposit Contracts");
(5) all "Loans" (as defined in Section 2.4 below);
(6) subject to Section 2.12, all customer account agreements between
Huntington Investment Company ("HIC") and customers of the Banking
Centers relating to accounts maintained through one of the Banking
Centers in connection with HIC's business of providing investment
products (including mutual funds, fixed income products, equities,
equity options, and fixed and variable annuities) to such customers
("Brokerage Account Agreements"), as well as all of Sellers' rights to
or interest in any commissions or income arising from the sale of such
products pursuant to Brokerage Account Agreements and not paid prior
to the Effective Time;
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(7) all coins and currency located at the Banking Centers as of the
Effective Time (the "Coins and Currency"); and
(8) all assignable operating contracts of the Banking Centers listed on
Exhibit 2.1(a) (the "Operating Contracts").
(b) The following items shall be excluded from the Transferred Assets
(collectively, the "Excluded Assets"):
(1) the proprietary merchandising equipment and other assets, including
without limitation, the ARGO teller system and the control panel for
the security systems, listed on Exhibit 2.1(b)(1) hereto;
(2) Sellers' rights in and to the names "Huntington" and any of their
predecessor banks' names and any of Sellers' or Sellers' predecessors'
corporate logos, trademarks, trade names, signs, paper stock forms,
and other supplies containing any such logos, trademarks, or trade
names;
(3) residential mortgage servicing rights for 1-4 family residential
mortgages loans at the Banking Centers;
(4) any regulatory licenses or any other nonassignable licenses and
permits;
(5) the line of Huntington's business which pertains to the origination of
indirect automobile loans and leases, including floor plan financing
("Dealer Sales");
(6) the line of Huntington's business which deals in merchant services for
credit and debit card processing which operates through Huntington
Merchant Services, L.L.C., which is jointly owned with First Data
Merchant Services, Inc. ("Merchant Card Services");
(7) Huntington Bank's credit card program with Chase Manhattan Bank USA,
National Association, and all rights, duties, obligations, and
relationships arising in connection therewith (the "Credit Card
Program");
(8) the line of Huntington's business which deals in origination of
mortgage loans ("Mortgage Loan Origination");
(9) proprietary Huntington software; and
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(10) all contracts or agreements which create, modify, or govern Huntington
Bank's fiduciary and non-fiduciary trust, custody, estate
administration, and guardian administration accounts and any rights of
Huntington Bank to the physical assets of such accounts or to hold the
physical assets of such accounts in accordance with the relevant trust
agreement.
Sellers shall coordinate with Purchasers to remove the Excluded Assets from the
Banking Centers on or prior to the Effective Time. Sellers shall remove the
Excluded Assets at their own cost and using their reasonable efforts to attempt
to minimize any damage as a result of such removal. Apart from making any
repairs necessitated by Sellers' negligence in removing the Excluded Assets,
Sellers shall be under no obligation to restore the premises to their original
condition, which shall be the responsibility of Purchasers.
Section 2.2. Purchase Price.
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(a) As consideration for the purchase of the Banking Centers, Purchasers shall
pay Sellers a purchase price equal to the sum of the following:
(1) the "Net Book Value" (as defined in paragraph 2.2(d) hereof) of the
Personal Property and the Real Property at the Banking Centers on the
Closing Date;
(2) a premium for the "Deposit Liabilities" (as defined in paragraph
2.3(a) hereof) and franchise value assigned to the Banking Centers
equal to 11.0% of such Deposit Liabilities;
(3) the "Net Book Value" (as defined in paragraph 2.2(d) hereof) of the
Loans as set forth in Section 2.4 hereof as of the Effective Time; and
(4) the face amount of the Coins and Currency.
(b) In addition, Purchasers shall assume, as of the Effective Time, the Deposit
Liabilities and all duties, obligations, and liabilities related to any of
the following accruing or arising on or after the Effective Time: (i) the
Real Property, (ii) the Real Property Lease, (iii) the Equipment Leases,
(vi) the Software Licenses, (v) the Safe Deposit Contracts, and (vi) all
Operating Contracts. 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 Banking Centers; and
(2) any and all obligations arising under any service agreements entered
into between Huntington and its subsidiaries or other affiliates.
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(c) Sellers shall prepare a balance sheet (the "Pre-Closing Balance Sheet") in
accordance with generally accepted accounting principles consistently
applied as of a date not earlier than 30 calendar days prior to the
Effective Time anticipated by the parties (the "Pre-Closing Balance Sheet
Date") reflecting the assets to be sold and assigned hereunder and the
liabilities to be transferred and assumed hereunder. Sellers agree to pay
to Purchasers at the Closing (as defined in Section 3.1 hereof), in
immediately available funds, the excess amount, if any, of the amount of
Deposit Liabilities assumed by Purchasers pursuant to paragraph (b) above,
as reflected by the Pre-Closing Balance Sheet, over the aggregate purchase
price computed in accordance with paragraph (a) above, as reflected by the
Pre-Closing Balance Sheet. Purchasers agree to pay Sellers at the Closing,
in immediately available funds, the excess, if any, of the aggregate
purchase price computed in accordance with paragraph (a) above, as
reflected by the Pre-Closing Balance Sheet, over the amount of Deposit
Liabilities assumed by Purchasers pursuant to paragraph (b) above, as
reflected by the Pre-Closing Balance Sheet. The purchase price, as well as
each of the items described in paragraphs (a)(1) through (4) above and all
amounts paid at the Closing shall be subject to subsequent adjustment based
on the Post-Closing Balance Sheet (as defined in Section 3.3 hereof).
(d) The "Net Book Values" of the Personal Property and the Real Property are
the values that the relevant assets are carried on Sellers' general ledger.
The "Net Book Value" of the Loans is the aggregate principal amount of the
Loans, plus accrued and unpaid interest, late charges, bad check fees, and
other accrued charges thereon, but such value shall not include any loan
loss reserves or general reserve.
(e) Sellers and Purchasers agree to allocate the purchase price in accordance
with Section 1060 of the Internal Revenue Code (the "Code"). Within 120
days after the Closing Date, Purchasers shall provide to Sellers
Purchasers' proposed allocation of the purchase price as finally determined
and paid by Purchasers hereunder. Within 30 days after the receipt of such
allocation, Sellers shall propose to Purchasers any changes to such
allocation or otherwise shall be deemed to have agreed with such
allocation. Sellers and Purchasers shall reduce such allocation to writing,
including jointly and properly executing a completed Internal Revenue
Service Form 8594, and any other forms or statements required by the Code,
Treasury Regulations, or the Internal Revenue Service, together with any
and all attachments required to be filed therewith. Sellers and Purchasers
shall file timely any such forms and statements with the Internal Revenue
Service. To the extent consistent with applicable law, Sellers and
Purchasers 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
Sellers nor Purchasers shall be obligated to litigate any challenge to such
allocation of the final purchase price by a governmental authority. Sellers
and Purchasers shall promptly inform one another of any challenge by any
governmental authority to any allocation made pursuant to this paragraph
and agree to consult with and keep one another informed with respect to the
state of, and any discussion, proposal, or submission with respect to, such
challenge.
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Section 2.3. Deposit Liabilities.
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(a) "Deposit Liabilities" shall mean all of HNB's duties, obligations, and
liabilities, as recorded on HNB's books and records as of the Effective
Time, for payment to the depositors of, and HNB's written contractual
duties and obligations relating to, the deposit accounts assigned to the
Banking Centers as of the Effective Time (including accrued but unpaid or
uncredited interest thereon).
(b) Except for those liabilities and obligations specifically assumed by
Purchasers under 2.2(b) above, Purchasers are not assuming any other
liabilities or obligations. Liabilities not assumed include, but are not
limited to, the following:
(1) Sellers' cashier checks, letters of credit, 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 Sellers and not cleared prior to the
Effective Time;
(2) deposit accounts associated with or securing lines of credit where the
line of credit is excluded in accordance with paragraph 2.4(b); and
(3) individual retirement accounts which, by their terms, are not subject
to assignment, it being understood that all other types of XXX Deposit
Liabilities are intended to be transferred.
(c) Sellers do not represent or warrant that any deposit customers whose
accounts are assumed by Purchasers will become or continue to be customers
of Purchasers after the Effective Time.
(d) After the Effective Time, Purchasers agree to pay in accordance with law
and customary banking practices all properly drawn and presented checks,
drafts, and withdrawal orders presented to Purchasers 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
forms, or draft forms provided by Sellers or by Purchasers, and in all
other respects to discharge, in the usual course of the banking business,
the duties and obligations of Sellers with respect to the balances due and
owing to the depositors whose accounts are assumed by Purchasers; provided
that Purchasers 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 Purchasers to pay the Deposit Liabilities assumed, shall
demand payment from Sellers for all or any part of any such assumed Deposit
Liabilities, Sellers shall not be liable or responsible for making any such
payment; provided, that if Sellers shall pay the same, Purchasers agree to
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reimburse Sellers for any such payments, and Sellers shall not be deemed to
have made any representations or warranties to Purchasers with respect to
any such checks, drafts, or withdrawal orders and any such representations
or warranties implied by law are hereby expressly disclaimed. Sellers and
Purchasers shall make arrangements to provide for the daily settlement with
immediately available funds by Purchasers of checks, drafts, withdrawal
orders, returns, and other items presented to and paid by Sellers within 90
calendar days after the Effective Time and drawn on or chargeable to
accounts that have been assumed by Purchasers; provided, however, that
Sellers shall be held harmless and indemnified by Purchasers for acting in
accordance with such arrangements.
(f) Purchasers agree, at their cost and expense, (i) to notify such depositors,
on or before the Effective Time, in a form and on a date mutually
acceptable to Sellers and Purchasers, of Purchasers' assumption of Deposit
Liabilities, (ii) to furnish such depositors with checks on the forms of
Purchasers and with instructions to utilize Purchasers' checks and to
destroy any unused check, draft, and withdrawal order forms of Sellers (if
Purchasers so elect, Purchasers may offer to buy from such depositors their
unused Sellers' check, draft, and withdrawal order forms), (iii) to reissue
all ATM and debit cards associated with the depositors of assumed Deposit
Liabilities, (iv) to replace all line of credit checks with checks on the
forms of Purchasers with instructions to utilize Purchasers' checks and to
destroy the unused checks, and (v) to disable and to notify customers of
the disabling of all credit card overdraft protection or notify the
customers of alternative over-draft protection through a different credit
card or line of credit. At their expense, Sellers will prepare and deliver
to Purchasers two sets of their normal customer mailing labels relating to
the Deposit Liabilities. In addition, subsequent to regulatory approval,
Sellers will notify their affected customers by letter of the pending
assignment of Sellers' Deposit Liabilities to Purchasers, which notice
shall be at Sellers' cost and expense and shall be in a form mutually
agreeable to Sellers and Purchasers. Sellers and Purchasers will coordinate
with each other as to the time and manner of notification to customers
consistent with regulatory requirements.
(g) Purchasers agree to pay promptly to Sellers 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 Sellers
after the Effective Time.
(h) As of the Effective Time, Purchasers will assume and discharge Sellers'
duties and obligations in accordance with the terms and conditions and
laws, rules, and regulations that apply to the certificates of deposit,
accounts, and other Deposit Liabilities assumed under this Agreement.
(i) As of the Effective Time, Purchasers 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
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this Agreement, subject to Sellers' right of access to such records as
provided in this Agreement.
(j) Sellers 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. Sellers will be entitled to impose normal fees and service
charges on a per-item basis, but Sellers will not impose periodic fees or
blanket charges in connection with such final statements. Purchasers will
comply with all laws, rules, and regulations regarding tax reporting of
transactions of such accounts after the Effective Time.
(k) Prior to the Closing Date, Purchasers, at their expense, will notify all
Automated Clearing House ("ACH") originators of the transfers and
assumptions made pursuant to the Agreement; provided, however, that Sellers
shall have provided Purchasers with all information necessary to make such
notifications and provided, further, that Sellers may, at their option,
notify all such originators (on behalf of Purchasers) also at the expense
of Purchasers. For a period of 90 calendar days beginning on the Effective
Time, Sellers will honor all ACH items related to accounts assumed under
this Agreement which are mistakenly routed or presented to Sellers. Sellers
will make no charge to Purchasers for honoring such items, and will
electronically transmit such ACH data to Purchasers. If Purchasers cannot
receive an electronic transmission, Sellers will make available to
Purchasers at Sellers' operations center receiving items from the Automated
Clearing House tapes containing such ACH data. Items mistakenly routed or
presented after the 90-day period will be returned to the presenting party.
Sellers and Purchasers shall make arrangements to provide for the daily
settlement with immediately available funds by Purchasers of any ACH items
honored by Sellers, and Sellers shall be held harmless and indemnified by
Purchasers for acting in accordance with this arrangement to accept ACH
items.
(l) As of the Effective Time, Sellers shall transfer and assign all files,
documents, and records related to the Deposit Liabilities to Purchasers,
including such information held in electronic form, and Purchasers will be
responsible for maintaining and safeguarding all such materials in
accordance with applicable law and sound banking practices.
(m) Sellers and Purchasers agree to cooperate in good faith to develop a
mutually satisfactory method with respect to terminating, transferring,
converting, and/or otherwise resolving issues related to insurance products
associated with Deposit Liabilities, including accidental death and
dismemberment insurance coverage in connection with Deposit Liabilities.
The parties' obligations in this paragraph (m) are subject to any
restrictions contained in existing insurance contracts as well as
applicable laws and regulations.
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Section 2.4. Loans Transferred.
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(a) Sellers will transfer to Purchasers as of the Effective Time, subject to
the terms and conditions of this Agreement, all of Sellers' right, title,
and interest in (including accrued but unpaid interest and late charges and
collateral relating thereto) loans maintained, serviced, and listed as
loans assigned to the Banking Centers (collectively, the "Loans");
provided, however, the Loans shall not include any loans described in
paragraph (b) below. Such 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).
(b) Notwithstanding the provisions of paragraph (a) above, the Loans shall not
include:
(1) nonaccruals (which term shall include loans in which the collateral
securing same has been repossessed or in which collection efforts have
been instituted or claim and delivery or foreclosure proceedings have
been filed);
(2) loans 90 calendar days or more past due or otherwise in default and
consumer loans which have been 30 days or more past due three or more
times during the preceding 12-month period;
(3) loans upon which insurance has been force-placed;
(4) loans in connection with which the borrower has filed a petition for
relief under the United States Bankruptcy Code prior to the Effective
Time;
(5) Loans originated through, and arrangements with motor vehicle dealers
in connection with, Huntington's Dealer Sales;
(6) servicing rights in connection with residential real estate related
loans; and
(7) the loans listed on Exhibit 2.4(b) hereto.
(c) Sellers and Purchasers agree to cooperate in good faith to develop a
mutually satisfactory method with respect to terminating, transferring,
converting, and/or otherwise resolving issues related to insurance products
associated with Loans, including (1) single premium credit life and
accident and health insurance in connection with closed-end Loans, (2)
monthly outstanding balance credit life and accident and health insurance
in connection with closed-end Loans, and (3) outstanding balance credit
life and accident and health insurance in connection with open-end Loans.
The parties' obligations in this paragraph (c) are subject to any
restrictions contained in existing insurance contracts as well as
applicable laws and regulations.
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(d) In connection with the transfer of any Loans requiring notice to the
borrower and the servicer, Purchasers and Sellers will comply with all
notice and reporting requirements of the loan documents or of any law or
regulation.
(e) All Loans will be transferred without recourse and without any warranties
or representations as to their collectibility or the creditworthiness of
any of the obligors of such Loans.
(f) Purchasers will, at their expense, issue new coupon books or other forms of
payment identification for payment of Loans for which Sellers provide
coupon books with instructions to utilize Purchasers' coupons or forms and
to destroy coupons furnished by Sellers.
(g) For a period of 90 calendar days after the Effective Time, Sellers will
forward to Purchasers loan payments received by Sellers. Purchasers shall
reimburse Sellers for checks returned on payments forwarded to Purchasers.
(h) As of the Effective Time, Sellers shall transfer and assign all files,
documents, and records related to the Loans to Purchasers, including such
information held in electronic form, and Purchasers will be responsible for
maintaining and safeguarding all such materials in accordance with
applicable law and sound banking practices.
(i) If the balance due on any Loan purchased pursuant to this Section 2.4 has
been reduced by Sellers as a result of a payment by check received prior to
the Effective Time, which item is returned after the Effective Time, the
asset value represented by the Loan transferred shall be correspondingly
increased and an amount in cash equal to such increase shall be paid by
Purchasers to Sellers promptly upon demand.
(j) Sellers shall grant to Purchasers as of the Effective Time a limited power
of attorney, in substantially the form attached hereto as Exhibit 2.4(j)
(the "Power of Attorney").
Section 2.5. Safe Deposit Business.
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(a) As of the Effective Time, Purchasers will assume and discharge Sellers'
obligations with respect to the safe deposit box business at the Banking
Centers in accordance with the terms and conditions of contracts or rental
agreements related to such business, and Purchasers will maintain all
facilities necessary for the use of such safe deposit boxes by persons
entitled to use them.
(b) As of the Effective Time, Sellers shall transfer and assign the records
related to such safe deposit box business to Purchasers, and Purchasers
shall maintain and safeguard all such records and be responsible for
granting access to and protecting the contents of safe deposit boxes at the
Banking Centers.
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(c) Safe deposit box rental payments collected by Sellers before the Effective
Time shall be prorated to the Closing Date.
Section 2.6. Employee Matters.
----------- ----------------
(a) Purchasers will offer employment to all employees of Sellers at the Banking
Centers as of the Effective Time (individually, an "Employee," and
collectively, the "Employees"). Any Employee who is on a leave of absence
with Sellers at the Closing Date shall be offered employment by Purchasers
following their return from such leave so long as such return is within 6
months of the Closing Date. The base salary for each Employee hired by
Purchasers shall not be less than the base salary provided by Sellers
immediately prior to the Effective Time. For purposes of eligibility,
participation, vesting, and benefit accrual under the First United
Corporation 401(k) Profit Sharing Plan or any successor plan thereto,
Purchasers agree to give the Employees that are hired by Purchasers service
credit for all periods of employment with Sellers (including their
affiliates and their predecessor entities), that are recognized by Sellers
for those purposes under the Huntington Investment and Tax Savings Plan
immediately prior to the Closing Date. With respect to Purchasers' other
employee benefit plans, including the First United Bank and Trust Pension
Plan, the Employees will be treated as new hires, except that the Employees
will be given the same amount of service credit for eligibility,
participation, and vesting purposes under the First United Bank and Trust
Pension Plan as they are given for the same purposes under the First United
Corporation 401(k) Profit Sharing Plan. For purposes of vacation, and
personal day entitlement, Family and Medical Leave Act entitlement, or any
other employment policy or practice where length of service is a
consideration, Purchasers agree to give the Employees that are hired by
Purchasers service credit for all periods of employment with Sellers
(including their affiliates and their predecessor entities) that are
recognized by Sellers for those purposes immediately prior to the Closing
Date. For purposes of determining the number of accumulated sick days
Employees will have under Purchasers' sick day policy as of the Closing
Date, Purchasers agree to grandfather the number of unused sick days each
Employee has remaining under Sellers' sick day policy as of the Closing
Date. The Employees who immediately become employees of Purchasers will
immediately be eligible to participate in each welfare benefit plan
maintained by Purchasers without regard to waiting periods, if such
Employees are participating in Sellers' corresponding welfare benefit plans
immediately prior to the Closing Date. To the extent there are pre-existing
condition limitations under Purchasers' medical and dental plans applicable
to any Employee, Sellers and Purchasers agree to cooperate in good faith to
develop a mutually satisfactory method to provide such Employee with
uninterrupted coverage and any additional cost associated with such method
shall be paid by Purchasers. With respect to Purchaser's long-term
disability plan, Employees who have satisfied all or a portion of the
pre-existing condition limitation of the long-term disability plan of
Sellers (including their affiliates and their predecessor entities) will be
given credit toward satisfaction of any pre-existing condition limitation
in Purchaser's long-term disability plan.
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To the extent that any Employee has satisfied in whole or in part any
annual deductible under a welfare benefit plan, or has paid any
out-of-pocket expenses pursuant to any welfare benefit plan co-insurance
provision, in each case with respect to the calendar year in which the
Closing Date occurs, such amount shall be counted toward satisfaction of
any applicable deductible or out-of-pocket expense maximum, respectively,
under the comparable benefit plans and programs provided to Employee by
Purchasers. Purchasers shall offer and pay continued salary as described in
the Huntington Bancshares Incorporated Transition Pay Plan to any Employee
terminated by Purchasers without cause (as defined under the Transition Pay
Plan, but as determined by Purchaser) within one year of the Closing Date.
For purposes of determining the length of time for salary continuation,
Purchasers agree to give Employees service credit for all periods of
employment with Sellers (including their affiliates and their predecessor
entities) that are recognized by Sellers for that purpose under the
Transition Pay Plan immediately prior to the Closing Date. Purchasers shall
not be responsible or liable for any benefits accrued under the pension or
welfare plans of Sellers. Sellers will be responsible for all accrued but
not paid vacation pay for the Employees through the Closing Date.
(b) After the execution of this Agreement, Sellers will continue their normal
employment practices in staffing the Banking Centers; however, Sellers make
no representations or warranties about whether any of the Employees who
become employees of Purchasers will remain employed at the Banking Centers
after the Effective Time. Sellers will: (i) use their best efforts to
maintain the Employees as employees of Sellers at the Banking Centers until
the Effective Time, (ii) refrain from dissuading any Employee from
accepting an offer of employment with Purchasers, and (iii) refrain from
recruiting employees for alternate positions with Sellers. Sellers shall
affirmatively advise Banking Centers Employees that their 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 Sellers in their sole and absolute discretion. Sellers agree
that, for a period of 24 months after the Closing Date, they will not
solicit for employment any Employee who remains employed by Purchasers.
(c) After the execution of this Agreement and subject to any legal
restrictions, Sellers shall permit Purchasers, at reasonable times and upon
reasonable notice, to examine and inspect Sellers' records relating to
Employees.
Section 2.7. Records and Data Processing, etc.
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(a) As of the Effective Time, Purchasers shall become responsible for
maintaining the files, documents, and records referred to in this
Agreement. Purchasers will preserve and hold them in safekeeping as
required by applicable law and sound banking practice for the joint benefit
of Sellers and Purchasers. After the Effective Time, Purchasers will permit
Sellers and their representatives, for reasonable cause, at reasonable
times and upon reasonable notice, to examine, inspect, copy, and reproduce
any such files, documents, or records as Sellers deem reasonably necessary
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and to have similar access to such records and Sellers' former employees
for purposes of preparation of records and reports (including regulatory
and tax reports and returns) and as Sellers require in connection with
third party litigation.
(b) As of the Effective Time, Sellers will permit Purchasers and their
representatives, for reasonable cause, at reasonable times and upon
reasonable notice, to examine, inspect, copy, and reproduce files,
documents, or records retained by Sellers regarding the assets and
liabilities transferred under this Agreement as Purchasers deem reasonably
necessary.
(c) For a period of 180 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 Sellers' 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, Sellers will work with Purchasers to
prepare mutually satisfactory schedules of Transferred Assets to be sold
hereunder.
Section 2.8. Security.
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As of the Effective Time, Purchasers shall be solely responsible for the
security of and insurance on all persons and property located in or about the
Banking Centers.
Section 2.9. Taxes and Fees; Proration of Certain Expenses.
------------ ---------------------------------------------------
(a) Purchasers shall not be responsible for, or have any liability with respect
to, taxes on any income to Sellers arising out of this transaction.
Purchasers shall not be responsible for any income tax liability of Sellers
arising from the business or operations of the Banking Centers before the
Effective Time, and Sellers shall not be responsible for any tax
liabilities of Purchasers arising from the business or operations of the
Banking Centers after the Effective Time. All excise, sales, use, and
transfer taxes that are payable or that arise as a result of the
consummation of the transactions contemplated by this Agreement shall be
paid one-half by Purchasers and one-half by Sellers, and each of
Purchasers, on the one-hand, and Sellers, on the other hand, shall
indemnify and hold the other harmless from and against any such taxes in
excess of the portion to be paid by such other party. Utility payments,
telephone charges, real property taxes, personal property taxes, rent,
salaries, deposit insurance premiums or assessments, maintenance items,
annual assessments, other ordinary operating expenses of the Banking
Centers, 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 Sellers for
a period extending beyond the Effective Time, there shall be a
proportionate monetary adjustment in favor of Sellers. Purchasers shall be
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responsible for the payment of any non-delinquent special assessments. Real
estate taxes shall be prorated, based upon the maximum allowable discount
and other applicable exemptions.
(b) Sellers and Purchasers shall each be responsible for their own costs with
respect to the preparation and filing of any tax returns, as well as 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) Sellers agree to deliver to Purchasers as soon as reasonably possible upon
Purchasers' request copies of all title information in possession of
Sellers, including, but not limited to, title insurance policies,
attorneys' opinions on title, surveys, covenants, deeds, and easements
relating to the Real Property and the leased Banking Center location. Such
delivery shall constitute no warranty by Sellers as to the accuracy or
completeness thereof or that Purchasers are entitled to rely thereon.
(b) Purchasers shall have the right to obtain, at Purchasers' sole cost and
expense:
(1) a title insurance commitment from a title insurance company selected
by Purchasers and an owner's policy of title insurance insuring
Purchasers' title to the Real Property and related easements and
rights appurtenant thereto for the Net Book Value of the land and
buildings; 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 Purchasers.
(c) Purchasers agree to notify Sellers, in writing, within 60 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 or the
leased Banking Center location to which Purchasers reasonably object (the
"Title Defects"). If Purchasers do not notify Sellers of Title Defects
within such time period, Purchasers shall be deemed to have waived their
rights under this Section 2.10 and Article IV as to such Title Defects.
Purchasers agree that Title Defects shall not include real property taxes
not yet due and payable or easements, restrictions, tenancies, survey
matters, or other title matters, and rights of way which do not materially
interfere with the use of the Real Property or the leased Banking Center
location as such facilities are currently utilized ("Permitted
Encumbrances"; the term "Permitted Encumbrances" shall also include any
title defects, deficiencies, exceptions, or encumbrances to which
Purchasers fail to object within said 60-day period, or to which Purchasers
object within said 60-day period but which Sellers do not correct and which
Purchasers expressly accept in writing). Sellers shall make a good faith
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effort to correct any such Title Defect to Purchasers' reasonable
satisfaction prior to the Closing Date; provided, however, that Sellers
shall not be obligated to bring any lawsuit or make any payments of money
(except to pay liens that Sellers do not dispute in good faith) to cure a
Title Defect. If Sellers are unable to cure any such Title Defects to
Purchasers' reasonable satisfaction prior to Closing, Sellers shall
transfer title with the uncured Title Defects to Purchasers and Purchasers
shall be entitled to the indemnification provided by Article IV with
respect to any uncured Title Defects.
(d) Purchasers shall have the right to request that the title insurance company
update title matters up to 10 business days prior 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 or have come into existence since the
date of Purchasers' original title search, and Purchasers reasonably object
thereto in writing, then Sellers shall make a good faith effort to cure any
such Title Defect to Purchasers' reasonable satisfaction; provided that
Sellers shall not be obligated to bring any lawsuit or make any payments of
money (except to pay liens that Sellers do not dispute in good faith) to
cure a Title Defect. If Sellers are unable to cure any such Title Defect,
Sellers shall transfer title with the uncured Title Defects to Purchasers
and Purchasers shall be entitled to the indemnification provided by Article
IV with respect to any uncured Title Defects.
Section 2.11. Environmental Matters.
------------ ---------------------
(a) Sellers agree to deliver to Purchasers as soon as reasonably possible, upon
Purchasers' request, copies of all environmental studies, reports, and
audits in Sellers' possession related to the Banking Centers. Sellers do
not make any representation or warranty regarding any aspect of any report
delivered to Purchaser, including without limitation, the accuracy or
completeness of the report, its preparation, or any information upon which
it is based. Any reliance on the report or any information contained in the
report shall be at Purchaser's risk. Sellers agree to use reasonable
efforts to assist Purchasers in obtaining reliance letters from the
environmental consultants or other parties that issued such studies,
reports, or audits that would permit Purchasers to rely thereon, but
Sellers shall not be obligated to incur any cost or liability in connection
therewith.
(b) Sellers authorize Purchasers and/or their agents or contractors to contact
governmental agencies regarding the environmental status of the Real
Property or the leased Banking Center location. In addition, Purchasers
shall have the right, but not the obligation, at their sole cost and
expense, to cause such investigations and tests to be made as they deem
necessary to determine whether there has been any soil, surface water,
groundwater, or building space contamination on or under the Real Property
or the leased Banking Center location; provided, however, that without the
prior written consent of Sellers, which consent will not unreasonably be
withheld, and execution of a satisfactory property access agreement,
Purchasers shall not conduct subsurface testing or any ground water
monitoring, install any test well, or undertake any other investigation
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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.
Sellers shall provide reasonable assistance to Purchasers and/or their
agents or contractors in their evaluation and testing of the Real Property
or the leased Banking Center location and Sellers shall provide Purchasers
and/or their agents or contractors access to pertinent records and
documents. Any tests performed by Purchasers shall be conducted in a manner
so as not to permanently or materially damage the Real Property or the
leased Banking Center location. If any damage is caused, Purchasers shall
immediately repair and restore the Real Property or the leased Banking
Center location to its former condition. Purchasers shall be responsible to
Sellers for, and shall indemnify, defend, and hold harmless Sellers from
and against any and all losses, claims, damages, liabilities, and causes of
action for personal injury or property damage or loss to persons or
property (including reasonable attorneys' fees) arising from such entry,
use, or occupancy of the Real Property or leased Banking Center location,
unless caused by the sole negligence of Sellers. This indemnity shall
survive the Closing or termination of this Agreement. Purchasers shall
furnish Sellers with a copy of each report setting forth the results of any
test performed by Purchasers within ten days after receipt. Purchasers
shall not submit a copy of any such report to any governmental agency
unless specifically required by applicable law; and, if so required,
Purchasers shall simultaneously provide to Sellers a copy of any
information submitted to such agency.
Purchasers shall report the results of any such investigations or
tests to Sellers no later than 30 days after the date of this Agreement. If
Purchasers' investigations or tests reveal any environmental conditions
that would cause a reasonably prudent purchaser to require a Phase II
report to determine the existence of a Material Adverse Environmental
Condition (defined below), Sellers and Purchases agree to use good faith
efforts to select a mutually acceptable environmental consultant as soon as
possible to determine whether such a condition is a Material Adverse
Environmental Condition and agree to share equally the cost of retaining
the consultant for such purpose. "Material Adverse Environmental Condition"
means an environmental condition that is reasonably likely to cost more
than $75,000 to remediate to a commercial use standard, as determined by
such environmental consultant. If Purchasers object to any Material Adverse
Environmental Condition which impacts the Banking Centers, Sellers shall
have the right, but not the obligation, to cure any such Material Adverse
Environmental Condition. If Sellers are unable or unwilling to cure such
problem prior to the Effective Time, Sellers shall transfer title to the
Banking Center with the uncured Material Adverse Environmental Condition to
Purchasers and Purchasers shall be entitled to the indemnification provided
by Article IV with respect to such uncured Material Adverse Environmental
Condition.
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Section 2.12. Brokerage Account Agreements.
------------ ----------------------------
Sellers will cause HIC to use reasonable efforts to transfer and assign, as of
the Effective Date, the Brokerage Account Agreements and all of HIC's rights to
or interest in any commissions or income arising from the sale of products
pursuant to such Brokerage Account Agreements and not paid prior to the
Effective Time to a replacement broker-dealer designated by Purchasers and
acceptable to Sellers, which acceptance shall not be unreasonably withheld. Such
transfer and assignment of the Brokerage Account Agreements will be subject to
such replacement broker-dealer assuming, as of the Effective Date, in form
satisfactory to Seller's counsel, all duties, obligations, and liabilities
related to Brokerage Account Agreements accruing or arising on or after the
Effective Date. To the extent allowable under applicable law, rules, and
regulations, Sellers will provide the current customer lists and account
holdings of such Brokerage Account Agreements in such formats as reasonably
requested by Purchasers, provided that such format is readily available to HIC,
and HIC will execute such consents as may be reasonably required to effect such
transfer and assignment. No party shall be required to take any action under
this Section 2.12 that is inconsistent with any applicable state, federal, or
local laws, rules, and regulations, any NASD or other SRO rules or rule
interpretation, or HIC's policies and procedures.
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 on a Friday
at the offices of Sellers in Columbus, Ohio, at 10:00 a.m., local time, or
at such other time, place, and manner as the parties shall mutually agree,
on a date to be mutually agreed upon between the parties, which date shall
be after the receipt of all necessary approvals by regulatory agencies and
after all statutory waiting periods have expired and no later than August
31, 2003. The effective time (the "Effective Time") shall be 5:00 p.m.,
local time, on the day on which the Closing occurs (the "Closing Date").
(b) Sellers and Purchasers 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.
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Section 3.2. Closing.
----------- -------
(a) All actions taken and documents delivered at the Closing shall be deemed to
have been taken and executed 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,
Sellers shall execute and deliver to Purchasers or, in the case of items
(6), (7), (8), (10), and (11), make reasonably available to Purchasers:
(1) special warranty deeds in recordable form executed by the appropriate
Seller transferring Sellers' title to the Real Property, subject to
the Permitted Encumbrances, in and to each parcel of Real Property to
Purchasers in substantially the form attached hereto as Exhibit
3.2(b)(1); provided, however, that Huntington's obligation to
indemnify Purchasers under Section 4.1(a)(ii) shall expressly survive,
and shall not be deemed to have been merged with, or otherwise
abrogated by, Purchasers' acceptance of any deed to the Real Property
or assignment of the Real Property Lease pursuant to Section
3.2(b)(4);
(2) a Xxxx of Sale, in substantially the form attached hereto as Exhibit
3.2(b)(2) (the "Xxxx of Sale"), transferring to Purchasers all of
Sellers' interest in the Personal Property and in the Loans;
(3) an Assignment and Assumption Agreement in substantially the form
attached hereto as Exhibit 3.2(b)(3) (the "Assignment and Assumption
Agreement"), assigning Sellers' interest in the Equipment Leases, the
Software Licenses, the Safe Deposit Contracts, the Operating
Contracts, and the Deposit Liabilities;
(4) an Assignment and Assumption of Lease, in substantially the form
attached hereto as Exhibit 3.2(b)(4) (the "Assignment and Assumption
of Lease"), assigning Sellers interest in the Real Property Lease;
(5) consents from third persons that are required to effect the
assignments set forth in the Assignment and Assumption Agreement and
the Assignment and Assumption of Lease;
(6) Sellers' keys to the safe deposit boxes and Sellers' records related
to the safe deposit box business at the Banking Centers;
(7) Sellers' files and records related to the Loans;
(8) Sellers' records related to the Deposit Liabilities assumed by
Purchasers;
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(9) immediately available funds in the net amount shown as owing to
Purchasers by Sellers on the Closing Statement, if any;
(10) the Coins and Currency;
(11) such of the other assets to be purchased as shall be capable of
physical delivery;
(12) a certificate of a proper officer of each Seller, dated as of the
Closing Date, certifying to the fulfillment of all conditions which
are the obligation of that Seller and that all of the representations
and warranties of such Seller set forth in this Agreement remain true
and correct in all material respects as of Effective Time;
(13) copies of resolutions of the Board of Directors of each Seller, or the
Executive Committees of a Seller, approving the sales contemplated
herein;
(14) a Closing Statement using amounts shown on the Pre-Closing Balance
Sheet, substantially in the form attached hereto as Exhibit 3.2(b)(14)
(the "Closing Statement");
(15) an affidavit of each Seller certifying that such Seller is not a
"foreign person" as defined in the federal Foreign Investment in Real
Property Tax Act of 1980;
(16) the Power of Attorney;
(17) such title insurance affidavits as may be required by the title
insurance company; and
(18) such certificates and other documents as the parties and their
respective counsel may reasonably require to evidence receipt of all
necessary regulatory authorizations and approvals for the consummation
of the transactions provided for in this Agreement.
It is understood that the items listed in items (6), (7), (8), (10), and
(11) shall be transferred at the Banking Centers immediately after the
Banking Centers have closed for business on the Closing Date.
(c) At the Closing, subject to all the terms and conditions of this Agreement,
Purchasers shall execute and deliver to Sellers:
(1) the Assignment and Assumption Agreement;
(2) the Assignment and Assumption of Lease;
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(3) a certificate and receipt acknowledging the delivery and receipt of
possession of the Assets and records referred to in this Agreement;
(4) immediately available funds in the net amount shown as owing to
Sellers by Purchasers on the Closing Statement, if any;
(5) a certificate of a proper officer of each Purchaser, dated as of the
Closing Date, certifying to the fulfillment of all conditions which
are the obligation of that Purchaser and that all of the
representations and warranties of that Purchaser set forth in this
Agreement remain true and correct in all material respects as of the
Effective Time;
(6) copies of resolutions of the Board of Directors, or the Executive
Committee, of each Purchaser approving the purchases contemplated
herein; and
(7) such certificates and other documents as Sellers and their counsel may
reasonably require to evidence the receipt by Purchasers of all
necessary regulatory authorizations and approvals for the consummation
of the transactions provided for in this Agreement.
(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 Balance
Sheet Delivery Date"), Huntington shall deliver to Purchasers a balance
sheet dated as of the Effective Time and prepared in accordance with
generally accepted accounting principles consistently applied reflecting
the assets sold and assigned and the liabilities transferred and assumed
hereunder (the "Post-Closing Balance Sheet"), including, but not limited
to, the specific items described in paragraph 2.2(a)(1) through (4) above,
as adjusted, together with a copy of Huntington's calculation of the
adjusted purchase price and amounts payable thereunder. Additionally,
Huntington shall deliver to Purchasers a final list of Loans purchased,
individually identified by account number. Huntington shall afford
Purchasers and their accountants and attorneys the opportunity to review
all work papers and documentation used by Huntington in preparing the
Post-Closing Balance Sheet. Within 15 days following the Post-Closing
Balance Sheet Delivery Date (the "Adjustment Payment Date"), Huntington and
Purchasers shall effect the transfer of any funds as may be necessary to
reflect changes in such assets and liabilities between the Pre-Closing
Balance Sheet and the Post-Closing Balance Sheet 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).
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(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. Any disputed amounts retained by a party which are
later found to be due to the other party shall be paid to such other party
promptly upon resolution with interest thereon from the Effective Time to
the date paid at the applicable Federal Funds Rate.
(c) The Federal Funds Rate shall be the mean of the high and low rates quoted
for Federal Funds in the Money Rates column of The Wall Street Journal
adjusted as such mean may increase or decrease during the period between
the Effective Time and the date paid.
ARTICLE IV - INDEMNIFICATION
----------------------------
Section 4.1. Huntington's Indemnification of Purchasers.
------------- ------------------------------------------------
(a) Subject to any limitations in this Section 4.1, Section 4.4, or otherwise
contained in this Agreement, Huntington shall indemnify, hold harmless, and
defend Purchasers from and against (i) any breach by Sellers of any
representation or warranty contained herein, (ii) claims, losses,
liabilities, demands, and obligations, including reasonable attorneys' fees
and expenses, whether or not involving a third-party claim, and including
costs of cleanup, containment, or other remediation, relating to any Title
Defect or Material Adverse Environmental Condition existing prior to the
Effective Time under the provisions of paragraph 2.10(c) or (d) or
paragraph 2.11(b), and (iii) all claims, losses, liabilities, demands, and
obligations, including reasonable attorneys' fees and expenses, arising out
of any actions, suits, or proceedings commenced prior to the Effective Time
(other than proceedings to prevent or limit the consummation of this
transaction) relating to Sellers' operations at the Banking Centers. Except
as otherwise provided in this Agreement, Huntington shall further
indemnify, hold harmless, and defend Purchasers 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 Sellers 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 Sellers' operations or transactions at the Banking
Centers prior to the Effective Time.
(b) The Purchasers' sole remedy for a breach of the representations and
warranties contained in Section 5.11 shall be to require the Sellers to (i)
purchase any Loans which Purchasers in good xxxxx xxxx to breach such
representation and warranty at the principal amount thereof, plus accrued
and unpaid interest, late charges, and any other charges thereon, in each
case as of the time of the applicable purchase, or (ii) indemnify
Purchasers in accordance with the other provisions of this Article IV, with
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Sellers having the right to choose between such measures. The remedies set
forth in this paragraph 4.1(b) can be exercised only for a period ending on
the earlier of 60 days after discovery of such breach or 12 months after
the Closing Date. Alternatively, the parties may agree to extend that
exercise period with respect to a particular Loan or group of Loans and
permit Purchasers to continue their customary processing and collection
efforts with respect to such Loans.
Section 4.2. Purchasers' Indemnification of Sellers.
----------- --------------------------------------
Purchasers shall indemnify, hold harmless, and defend Sellers from and against
any breach by Purchasers of any representation or warranty contained herein and
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 any of Sellers may receive, suffer, or incur in connection with
operations and transactions occurring after the Effective Time and which involve
the Banking Centers, the Transferred Assets, or the liabilities assumed by
Purchasers pursuant to this Agreement.
Section 4.3. Claims for Indemnity.
----------- --------------------
(a) A claim for indemnity under Sections 4.1 or 4.2 of this Agreement may be
made by the claiming party at any time prior to (i) 120 months after the
Effective Time in case of a claim under Section 4.1(a)(ii), and (ii) 24
months after the Effective Time for all other items, 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 individual, association, corporation, limited
liability company, partnership, limited liability partnership, trust, firm,
or other entity (a "Person") 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 five calendar days after receipt of such
notice of any such demand, claim, or lawsuit, then the indemnified party
shall retain counsel and conduct the defense of such demand, claim, or
lawsuit as it may in their 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
-22-
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 their receipt of the notice of such settlement offer).
Section 4.4. Limitations on Indemnification and Survival.
----------- -------------------------------------------
(a) 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 $100,000. Once such
aggregate amount exceeds $100,000, such party shall thereupon be entitled
to indemnification for all amounts in excess of such $100,000. 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.
(b) Neither the Sellers, on the one hand, nor the Purchasers, on the other
hand, shall be obligated to indemnify the other for more than $2,000,000 in
the aggregate for all claims asserted by such party; provided, however,
that the limitations contained in this Section 4.4(b) shall not apply to
any claim of common law fraud or claims for indemnification for Excluded
Assets.
(c) The provisions of Article IV shall survive the Effective Time for the
periods specified in Sections 4.1(b) and 4.3(a), but in no event more than
120 months after the Effective Time.
ARTICLE V - REPRESENTATIONS AND WARRANTIES OF SELLERS
-----------------------------------------------------
Except as otherwise specifically herein provided, and except as specifically
disclosed to Purchasers in writing prior to the date hereof, or as otherwise
disclosed as described in the particular Sections of this Article V, Huntington,
on behalf of itself and its subsidiaries, hereby represents and warrants to
Purchasers as follows:
Section 5.1. Corporate Organization.
----------- ----------------------
Huntington is a bank holding company duly organized, validly existing, and in
good standing under the laws of the State of Maryland. HNB is a national banking
association duly organized, validly existing, and in good standing under the
laws of the United States. Sellers have the corporate power and authority to
carry on their respective businesses as currently conducted and to effect the
transactions contemplated herein.
Section 5.2. No Violation.
----------- ------------
The Banking Centers have been operated in all material respects in accordance
with applicable laws, rules, and regulations. Neither the execution and delivery
of this Agreement, nor the consummation of the transactions contemplated herein,
-23-
will violate or conflict with (i) Sellers' charters or bylaws; (ii) any material
provision of any material agreement or any other material restriction of any
kind to which either of the Sellers is a parties or by which either of the
Sellers 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
obligations or loans to which either of the Sellers is a party.
Section 5.3. Corporate Authority.
----------- -------------------
Prior to the Closing Date, the consummation of the transactions contemplated
herein will have been duly authorized by the Board of Directors or the Executive
Committee of each corporate entity conveying assets or liabilities to Purchasers
under this Agreement. No further corporate authorization is necessary for
Sellers to consummate the transactions contemplated hereunder.
Section 5.4. Enforceable Agreement.
----------- ---------------------
This Agreement has been duly executed and delivered by Huntington and HNB and is
the legal, valid, and binding agreement of Huntington and HNB, enforceable
against each of Huntington and HNB in accordance with its terms.
Section 5.5. No Brokers.
----------- ----------
All negotiations relative to this Agreement and the transactions contemplated
hereby have been carried on by Huntington and Purchasers, and there has been no
participation or intervention by any other Person employed or engaged by or on
behalf of Sellers in such a manner as to give rise to any valid claim against
Sellers or Purchasers for a brokerage commission, finder's fee, or like
commission.
Section 5.6. Personal Property.
----------- -----------------
Sellers own, and will convey to Purchasers at the Closing, all of Sellers'
right, title, and interest to all of the Personal Property free and clear of any
mortgages, liens, security interests, or pledges. Such items are in generally
good working order other than items that are not material or items that do not,
in the aggregate, exceed $25,000 in value.
Section 5.7. Real Property and Leased Banking Center.
----------- ---------------------------------------
Sellers make the following additional representations regarding the Real
Property and the leased Banking Center:
(a) Except as specifically set forth herein, Sellers have no knowledge of any
condemnation proceedings pending against the Real Property or the leased
Banking Center location.
-24-
(b) Except as specifically set forth herein, Sellers have not entered into any
agreement regarding the Real Property or the leased Banking Center
location, and to Seller's knowledge the Real Property and the leased
Banking Center location are not subject to any claim, demand, suit, lien,
proceeding, or litigation of any kind, pending or outstanding, which would
materially affect or limit Purchasers' use and enjoyment of the Real
Property or the leased Banking Center location or which would materially
limit or restrict Sellers' right or ability to enter into this Agreement
and consummate the sale and purchase contemplated hereby.
(c) To Sellers' knowledge, (i) no fact or condition exists which would result
in the permanent termination or material impairment of access to the Real
Property or the Leased Banking Center location from adjoining public
streets or highways or in the permanent discontinuance of necessary
utilities services to the Real Property or the Leased Banking Center
location, and (ii) all sanitation, plumbing, refuse disposal, and similar
facilities servicing the Banking Centers are in material compliance with
applicable governmental regulations.
(d) No complaints have been received by Sellers that Sellers are in violation
of applicable building, zoning, platting, subdivision, use, safety,
building, or similar laws, ordinances, regulations, and restrictions with
respect to the Banking Centers. To Sellers' knowledge, there are no special
or general assessments pending against or affecting the Real Property and,
to Sellers' 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 Sellers' knowledge, there is no
encroachment upon the Real Property from any buildings or improvements, if
any, located on the adjacent property; and (ii) to Sellers' knowledge,
there is no encroachment by the Real Property upon any adjacent property or
upon any easements with respect to the adjacent property. There are no
leases or other agreements by which any Person possesses or has a right to
possess all or any portion of the Real Property other than those described
in this Agreement or exhibits to this Agreement. To Sellers' 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 Sellers' knowledge, the Real Property is adequately serviced by all
utilities necessary for effective operation as presently used for a
financial institution office.
Until the Closing Date, Purchasers' sole remedy for a breach of the
representations and warranties in this Section 5.7 shall be as provided in
Sections 2.10(c) and (d).
Section 5.8. Condition of Property.
----------- ---------------------
Except as may be otherwise specifically set forth in this Agreement, the Real
Property, the Leased Banking Center location, and the Personal Property to be
purchased by Purchasers hereunder are sold "AS IS, WHERE IS," with no warranties
-25-
or representations whatsoever, except as may be expressly represented or
warranted in this Agreement.
Section 5.9. Employees.
----------- ---------
No Employee located in any of the Banking Centers is a party to any collective
bargaining, employment, severance, termination, or change of control agreement
or represented by a labor organization of any type other than Sellers'
established terms of employment and severance policies. Sellers are unaware of
any efforts during the past three years to unionize or organize the employees of
any of the Banking Centers. Sellers will provide to Purchasers a true and
correct list of all employees of the Banking Centers as of the date hereof, and
a list of any and all bonus or incentive or other compensation arrangements or
commitments, other than benefits plans applicable to all Huntington employees,
for each such employee or for the employees as a group. Purchasers agree to keep
such information in strictest confidence and to confine knowledge of such
information to those of their officers and personnel who have a need to know
such information in connection with the performance of their duties. None of the
employees of the Banking Centers is a party to any employment contract, formal
or informal, oral or written, or represented under any collective bargaining
agreement relating to employment with Sellers.
Section 5.10. Assumed Contracts.
------------ -----------------
Sellers have delivered to Purchasers a true and complete copy of each Real
Property Lease, Equipment Lease, Software License, Safe Deposit Contract, and
Operating Contract that is to be assumed by Purchasers. Each Real Property
Lease, Equipment Lease, Software License, Safe Deposit Contract, and Operating
Contract is valid and subsisting and in full force and effect. Sellers have
performed in all material respects all obligations required to be performed by
Sellers thereunder and no condition exists which constitutes or, with notice, or
lapse of time, would constitute a material default thereunder. To Sellers'
knowledge, all other parties to each Real Property Lease, Equipment Lease and
Software License have performed in all material respects all obligations
required to be performed by such parties thereunder and no condition exists
which constitutes or, with notice, or lapse of time, would constitute a material
default thereunder by such other parties.
Section 5.11. Loans.
------------ -----
(a) Each Loan was made in the ordinary course of business, has been properly
executed by the parties thereto, represents the valid and binding
obligation of the obligor, enforceable by the holder thereof in accordance
with its terms, is free from any material defenses, contains customary
enforcement provisions such that the rights and remedies of the holder
thereof are adequate for enforcement of the Loans, and, unless approved by
Sellers and documented in their files, no material provision of a Loan has
been waived.
(b) Each Loan (such term to include, for purposes of this paragraph, the
principal documents relating in any way to such Loans, including notes,
mortgages, security instruments, and guarantees) complies and has been
-26-
administered in all material respects with all requirements of applicable
federal, state, and local laws and regulations.
(c) Each Loan that is secured by collateral is secured by a perfected mortgage
or security interest in the collateral in favor of Sellers as mortgagee or
secured party and having the priority as documented in Sellers' files. No
collateral has been released from the lien granted to Sellers, unless
approved by Sellers and documented in their files.
(d) No selection procedures believed to be adverse to Purchasers have been
utilized by Sellers in selecting the Loans.
(e) Except as may be otherwise specifically set forth in this Agreement, all
Loans (such term to include, for purposes of this paragraph, the principal
documents relating in any way to such Loans, including notes, mortgages,
security instruments, and guarantees) transferred to Purchasers hereunder
are transferred "AS IS, WHERE IS," with no warranties or representations
whatsoever, except as may be expressly represented or warranted in this
Section 5.11. Purchasers' sole remedy for a breach of the representations
and warranties in this Section 5.11 shall be as provided in paragraph
4.1(b).
Section 5.12. Environmental Matters.
------------ ---------------------
Except as previously disclosed to Purchasers in writing, to the actual knowledge
of the Executive Officers of Sellers or the senior property management officer
for the geographic region in which the Banking Centers are located, and without
any investigation by such officers:
(a) Each Banking Center is, in all material respects, in compliance with all
applicable federal, state, local, or municipal statutes, ordinance, 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) No Banking Center is constructed of, nor does it contain as a component
part, any material (either in its present form or as it may reasonably be
expected to change through aging or normal use) which reasonably can be
expected to release any substance, whether gaseous, liquid, or solid or
that is known to be (either by single exposure or by repeated or prolonged
exposure) injurious or hazardous to the health of persons occupying the
premises or is a Hazardous Substance (defined below). Without limiting the
generality of this Section, each Banking Center is, and during all
applicable limitation periods has been, to Sellers' knowledge, free of
asbestos except to the extent properly sealed or encapsulated in compliance
with all applicable Environmental Laws (defined below) and all work-place
safety, disability and health laws, regulations, and guidelines so as to
completely prevent the escape of asbestos particles or fibers.
(c) During Sellers' ownership and operation, no part of any Banking Center has
been used for the manufacture, handling, storage, or disposal of Hazardous
Substances, except for conventional cleaning and maintenance materials in
-27-
quantities customary for commercial operations of the nature conducted by
Sellers at such Banking Center.
(d) Except as disclosed in writing to Purchasers, no Banking Center contains,
nor has ever contained, an "underground storage tank" as that term is
defined in the Federal Hazardous and Solid Waste Amendments of 1984 to the
Resource Conservation and Recovery Act.
(e) There is no action, suit, investigation, inquiry, or other proceeding,
ruling, order, or citation involving Sellers, pending, threatened, or
previously asserted as a result of any actual or alleged failure to comply
with any requirement of any Environmental Laws with respect to any Banking
Centers, and there is no factual basis for any of the foregoing. Sellers
have not received a notice that they are a potentially responsible party
under any state or federal Environmental Law.
(f) Neither Seller is an "owner or operator" of a "facility" or "vessel," 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"), thereby owning, possessing, transporting, generating, or
disposing of any Hazardous Substances in relation to any Banking Center.
For purposes of this Section 5.12, "Hazardous Substances" has the meaning
defined in Section 9601 of CERCLA, and includes any substance that is now or
hereafter regulated by or subject to any Environmental Laws and any other
pollutant, contaminant, or waste, including, without limitation, asbestos,
radon, polychlorinated biphenyls, and petroleum products; and "Environmental
Laws" mean all laws (civil or common), ordinances, rules, regulations, and
orders that: (i) regulate solid waste management, including the containment,
storage, handling, transportation, disposal, or management of Hazardous
Substances; (ii) regulate or prescribe requirements for air, water, or soil
quality; (iii) are intended to protect public health or the environment; or (iv)
establish liability for the investigation, removal, or cleanup of, or damage
caused by, any Hazardous Substances. Until the Closing Date, Purchasers' sole
remedy for a breach of the representations and warranties in this Section 5.12
shall be as provided in Section 2.11(b).
Section 5.13. Deposit Liabilities.
------------ -------------------
No selection procedures believed to be adverse to Purchasers have been utilized
by Sellers 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 Sellers with respect to
the termination of such insurance. Sellers are classified 1-A for purposes of
calculating FDIC Insurance premiums. To Sellers' knowledge, the Deposit
Liabilities (i) are in all respects genuine and enforceable obligations of
Sellers 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
-28-
Sellers' 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 Purchasers indicating the owners of the Deposit
Liabilities, other than claims against such Deposit Liabilities owners, 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 5.14. Books, Records, Documentation, etc.
------------ ----------------------------------
The books and records of the Banking Centers 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 Sellers' policies, procedures, and practices with respect thereto, used at
the Banking Centers comply in all material respects with applicable federal and
state laws and regulations and customary banking practices.
Section 5.15. Litigation.
------------ ----------
There are no actions, causes of action, claims, suits, or proceedings, pending
or, to Sellers' knowledge, threatened, against Sellers relating to the Banking
Centers or materially affecting the Banking Centers, whether at law, in equity
or before or by a governmental department, commission, board, bureau, agency, or
instrumentality. For purposes of this section, claims will be considered to
materially affect the Banking Centers if the aggregate amount of such claims
exceeds $10,000.
Section 5.16. Tax Matters.
------------ -----------
Sellers have 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. Sellers have filed all federal, state, county, local, and foreign
tax returns, including information returns, required to be filed by them in
connection with Sellers' operation of the Banking Centers, and have paid all
taxes owed by them, 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 them are delinquent. Sellers have paid all taxes which they are
required to withhold from amounts owing to employees, creditors, holders of
Deposit Liabilities, or other third parties. For all completed years, Sellers
have 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 5.17. Limitation and Survival of Representations and Warranties.
------------ ---------------------------------------------------------
Except as may be expressly represented or warranted in this Agreement, neither
Huntington nor any other Seller makes any representation or warranty whatsoever
with regard to any asset being transferred to Purchasers or any liability or
-29-
obligation being assumed by Purchasers or as to any other matter or thing. The
foregoing representations and warranties shall survive the Effective Time for a
period of 24 months, except Section 5.13, which shall survive the Effective Time
for a period of six months, and except as otherwise specifically herein
provided.
ARTICLE VI - REPRESENTATIONS AND WARRANTIES OF PURCHASERS
---------------------------------------------------------
Except as otherwise specifically herein provided, Purchasers hereby represent
and warrant to Sellers as follows:
Section 6.1. Corporate Organization.
----------- ----------------------
First United is a corporation, duly organized and validly existing, and in good
standing under the laws of the State of Maryland. First United Bank is a state
chartered banking corporation, duly organized and validly existing, and in good
standing under the laws of the State of Maryland. Purchasers have 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) Purchasers'
charters or bylaws, (ii) any material provision of any material agreement or any
other material restriction of any kind to which either of the Purchasers is a
party or by which either of the Purchasers 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 either
of the Purchasers is a party.
Section 6.3. Corporate Authority.
----------- -------------------
Prior to the Closing Date, the consummation of the transactions contemplated
herein will have been duly authorized by the Board of Directors or Executive
Committee of each of the Purchasers. No further corporate authorization on the
part of Purchasers is necessary to consummate the transactions contemplated
hereunder.
Section 6.4. Enforceable Agreement.
----------- ---------------------
This Agreement has been duly executed and delivered by Purchasers and is the
legal, valid, and binding agreement of Purchasers, enforceable in accordance
with its terms.
-30-
Section 6.5. No Brokers.
----------- ----------
All negotiations relative to this Agreement and the transactions contemplated
hereby have been carried on by Purchasers and Huntington and there has been no
participation or intervention by any other Person employed or engaged by or on
behalf of Purchasers in such a manner as to give rise to any valid claim against
Sellers or Purchasers for a brokerage commission, finder's fee, or like
commission.
Section 6.6. Survival of Representations and Warranties.
----------- ------------------------------------------
The foregoing representations and warranties shall survive the Effective Time
for a period of 24 months.
ARTICLE VII - OBLIGATIONS OF PARTIES PRIOR TO AND AFTER EFFECTIVE TIME
----------------------------------------------------------------------
Section 7.1. Full Access.
----------- -----------
Sellers shall afford to the officers and authorized representatives of
Purchasers, upon prior notice and subject to Huntington's normal security
requirements, access to the properties, books, and records pertaining to the
Banking Centers, specifically including but not limited to all books and records
relating to the Deposit Liabilities, the Loans, the Real Property, and the
Personal Property, and copies of the Real Property Lease, Equipment Leases, and
Software Leases in order that Purchasers 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
Banking Centers or the affairs of Huntington relating to the Banking Centers.
Sellers will cooperate with Purchasers to the extent reasonably requested and
legally permissible to provide Purchasers with information about Employees and a
means to meet with Employees. The officers of Sellers shall furnish Purchasers
with two standard sets of such additional financial and operating data and other
information as to their business and properties at the Banking Centers, or where
otherwise located, as Purchasers may, from time to time, reasonably request and
as shall be available, including, without limitation, information required for
inclusion in all governmental applications necessary to effect this transaction.
Any additional copies of such information shall be produced and provided at
Purchasers' expense. Nothing in this Section 7.1 shall require Sellers 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 Loans, will be made available for review by
Purchasers no later than 30 calendar days after the execution of this Agreement.
It is understood that certain of Sellers' 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.
----------- ----------------------------------
Sellers shall prepare or cause to be prepared at their expense and make
available to Purchasers at Sellers' data processing center or other reasonably
convenient location magnetic media records in Sellers' field format as soon as
-31-
possible and in any event not later than 30 calendar days after the execution of
this Agreement and further shall make available to Purchasers such records
updated monthly and as of the Closing Date, which records shall contain the
information related to the items described in items 3.2(b)(6), (7), and (8)
above. Such updated records shall be made available at such time after the
Closing Date as agreed to by the parties. At their option, Sellers may provide
such reports in paper format instead of magnetic media format.
Section 7.3. Application for Approval.
----------- ------------------------
Within 30 calendar days following the execution of this Agreement, Purchasers
shall prepare and file applications required by law with the appropriate
regulatory authorities for approval to purchase and assume the aforesaid assets
and liabilities, to establish branches at the location of the Banking Centers,
and to effect in all other respects the transactions contemplated herein.
Purchasers agree to process such applications in a diligent manner and on a
priority basis and to provide Huntington 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 their best efforts to obtain all necessary
regulatory approvals. On the date hereof, Purchasers know of no reason why such
applications should not receive all such approvals. Purchasers shall promptly
notify Huntington upon receipt by Purchasers of notification that any
application provided for hereunder has been accepted or denied. Sellers shall
provide such assistance and information to Purchasers as shall be reasonably
necessary for Purchasers 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, Sellers shall:
(1) carry on, or cause to be carried on, the business of the Banking
Centers substantially in the same manner as on the date hereof, use
all reasonable efforts to preserve intact their current business
organization and preserve their business relationships with
depositors, customers, and others having business relationships with
it and whose accounts will be retained at the Banking Centers;
provided, however, that a Seller need not, in their sole discretion,
advertise or promote new or substantially new customer services in the
principal market area of the Banking Centers;
(2) cooperate with and assist Purchasers in assuring the orderly
transition of the business of the Banking Centers to Purchasers from
Sellers; and
(3) maintain the Real Property, the leased Banking Center location, and
the Personal Property in their current condition, ordinary wear and
tear excepted.
-32-
Section 7.5. No Solicitation by Sellers.
----------- --------------------------
(a) After the execution of this Agreement, Sellers will take reasonable steps
to avoid causing Banking Centers customers to transfer all or part of their
Deposit or Loan business from the Banking Centers. For a period of 24
months after the Closing Date, Sellers will not establish any new branch
facility or install any automated teller machines at any location within
Berkeley County; provided, however, that this restriction will not apply to
any branch existing as of the date of this Agreement nor prohibit Sellers
from acquiring a branch facility or automated teller machine as part of an
acquisition of another bank or bank holding company that has at least 85%
of their total deposits attributed to branch offices located outside
Berkeley County. As of the date of this Agreement, Sellers do not have any
plans to make any such acquisitions, but Sellers may make such acquisitions
in the future. In addition, for a period of 24 months after the Closing
Date, Sellers will not specifically target or solicit customers assigned to
the Banking Centers; provided, however, that this restriction shall not
restrict general mass mailings, telemarketing calls, statement stuffers,
and other similar communications directed to all the current customers of
Sellers or Sellers' affiliates, or to the public or newspaper, radio, or
television advertisements of a general nature or otherwise prevent Sellers
from taking such actions as may be required to comply with any applicable
federal or state laws, rules, or regulations. The foregoing restriction
shall not restrict the ability of Sellers or any of their affiliates from:
(i) engaging in the lines of business excluded from the Transferred Assets,
namely, the Dealer Sales line of business, the Mortgage Loan Origination
line of business, the Merchant Card Services line of business, and the
Credit Card Program, and (ii) soliciting customers whose accounts are
normally established or maintained in offices other than the Banking
Centers. In addition, it is understood and agreed that the restrictions
contained in this paragraph 7.5(a) shall not be binding upon or apply to
any Person who merges, consolidates, or otherwise becomes affiliated with
Sellers, or any of such Persons' affiliates or successors, as a result of a
business combination transaction where such business combination
transaction was not undertaken for the primary purpose of re-entering the
retail and corporate branch banking business within the area restricted by
this paragraph 7.5(a). The obligations of the parties hereunder shall
specifically survive the Closing for a period of 24 months.
(b) In order to facilitate Sellers' compliance with the restrictions in this
Section 7.5, Purchasers will give prompt notice to Sellers of any mailing
or other form of marketing that it determines is not consistent with such
restrictions.
Section 7.6. Efforts to Consummate; Further Actions.
----------- --------------------------------------
The parties hereto agree to use all reasonable efforts to satisfy or cause to be
satisfied as soon as practicable their respective obligations hereunder and the
conditions precedent to Closing. The parties 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
-33-
requested by Purchasers to transfer the Loans and all collateral related
thereto. Such assistance will be provided to the Purchasers without costs for
Sellers' 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 Sections
2.9, 2.11(b), and this Section 7.7, Purchasers shall be responsible for the
costs of all title examinations, surveys, environmental investigation costs,
their own attorneys' and accountants' fees and expenses, software license and
transfer fees, 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 interest or lien securing Loans transferred
hereunder. Purchasers shall pay the costs of title insurance premiums and
documentary stamps and similar real estate transfer charges. Sellers shall be
responsible for their own attorneys' and accountants' fees and expenses related
to this transaction. Sellers shall make no charge to the Purchasers for Sellers'
personnel assigned to transition matters hereunder.
Section 7.8. Breaches with Third Parties.
----------- ---------------------------
If the assignment of any material claim, contract, license, lease, commitment,
sales order, or purchase order (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 Purchasers or Sellers
thereunder, then such assignment will be made subject to such consent or
approval being obtained.
Section 7.9. Operations.
----------- ----------
Notwithstanding the foregoing, between the date of this Agreement and the
Effective Time, and except as may be otherwise required by regulatory authority,
Sellers shall underwrite and administer the Loans at the Banking Centers in
accordance with their past standards and practices and in accordance with
applicable laws and regulations and shall not without the prior consent of
Purchasers, which consent shall not be unreasonably withheld:
(1) cause the Banking Centers to engage or participate in any material
transaction or incur or sustain any obligation which is material to
their business, condition, or operation;
(2) cause the Banking Centers to transfer to Sellers' other operations any
material amount of Transferred Assets, except for (i) supplies, if
any, which have unique function in Sellers' business and ordinarily
would not be useful to Purchasers, (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 Sellers name and/or logo;
-34-
(3) except in the ordinary course of business at the unsolicited request
of depositors (i) cause the Banking Centers to transfer to Sellers'
other operations any Deposit Liabilities, or (ii) cause any of
Sellers' other operations to transfer to the Banking Centers any
Deposit Liabilities;
(4) invest in any fixed assets on behalf of the Banking Centers and for
replacements of furniture, furnishing, and equipment except for normal
maintenance and refurbishing purchased or made in the ordinary course
of business;
(5) enter into or amend any continuing contract (other than Deposit
Liabilities and Loans) relating to the Banking Centers, which cannot
be terminated without cause and 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;
(6) 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 Banking Centers, unless such actions are
required or permitted by this Agreement;
(7) hire any individual into the Banking Centers (other than to replace a
departing employee and/or to bring the number of employees at the
Banking Centers to normal staffing levels), transfer or reassign any
employee of the Banking Centers (other than within the group of
Banking Centers), increase the compensation of any employee of the
Banking Centers, or promote any of the employees, except where any
such action is pursuant to and consistent with customary Sellers'
procedures and policies;
(8) make any material change to their customary policies for setting rates
on deposits offered at the Banking Centers;
(9) amend or modify any of their promotional, deposit account, or Loan
practices at the Banking Centers other than amendments or
modifications in the ordinary course of business in accordance with
amendments or modifications undertaken at Sellers' branches other than
the Banking Centers;
(10) enter into any employment severance, termination, or change in control
contracts or understandings with any employee of the Banking Centers;
(11) reduce the service charges on any deposit product or fee-based product
(e.g. safe deposit boxes, money orders, cashier's checks) unless such
reduction is implemented generally in Sellers' other branches;
-35-
(12) lease or sublease any space in the Banking Centers,
(13) until the Effective Time fail to maintain and update their general
ledger on a basis consistent with their past accounting practices; or
(14) 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 the Sellers
after the date hereof.
Section 7.10. Destruction and Condemnation.
------------ ----------------------------
If any of the Banking Centers is damaged or destroyed or condemned between the
date hereof and the Closing Date, unless Sellers have repaired or replaced the
damage or destroyed property, Purchasers may elect, in their sole discretion, to
either (i) not acquire the damaged Banking Center and the related assets and
liabilities or, (ii) acquire the damaged Banking Center, in which event Sellers
will deliver to Purchasers any insurance proceeds, condemnation proceeds, or
other payment with respect to the Banking Centers.
Section 7.11. Insurance.
------------ ---------
As of the Effective Time, Huntington will discontinue their insurance coverage
maintained in connection with the Banking Centers and the activities conducted
thereon. Purchasers shall be responsible for all insurance protection for the
Banking Centers' premises and the activities conducted thereon immediately
following the Effective Time. Huntington shall bear the risk of loss until the
Effective Time.
Section 7.12. Public Announcements.
------------ --------------------
Sellers and Purchasers agree that, from the date hereof, neither shall make any
public announcement or public comment, regarding this Agreement or the
transactions contemplated herein without first consulting with the other party
hereto and reaching an agreement upon the substance and timing of such
announcement or comment. Further, Sellers and Purchasers acknowledge the
sensitivity of this transaction to the Employees and no announcements or
communications with the public or the Employees shall be made without the prior
approval of Sellers until the Effective Time.
Section 7.13. Tax Reporting.
------------ -------------
Sellers shall comply with all tax reporting obligations in connection with
transferred assets and liabilities on or before the Effective Time, and
Purchasers shall comply with all tax reporting obligations with respect to the
Transferred Assets and liabilities after the Effective Time.
-36-
Section 7.14. Transitional Matters.
------------ --------------------
Sellers shall use their best efforts to cooperate with Purchasers to assure an
orderly transition of ownership of the Transferred Assets and Loans and
responsibility for the liabilities, including the Deposit Liabilities, assumed
by Purchasers hereunder.
ARTICLE VIII - CONDITIONS TO PURCHASERS' OBLIGATIONS
----------------------------------------------------
The obligation of Purchasers 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 Sellers in this Agreement shall be
true in all material respects on 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 Purchasers.
Section 8.2. Obligations Performed.
----------- ---------------------
Sellers shall have (i) delivered or made available to Purchasers those items
required by Section 3.2(b) hereof, and (ii) 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 at the Effective Time.
Section 8.3. No Adverse Litigation.
----------- ---------------------
As of the Effective Time, no action, suit, or proceeding shall be pending or
threatened against Sellers which is reasonably likely to (i) materially and
adversely affect the business, properties, and assets of the Banking Centers, or
(ii) materially and adversely affect the transactions contemplated herein.
Section 8.4. Regulatory Approval.
----------- -------------------
(a) Purchasers shall have received all necessary regulatory approvals of the
transactions provided in 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 Purchasers.
-37-
ARTICLE IX - CONDITIONS TO SELLERS' OBLIGATIONS
-----------------------------------------------
The obligation of Sellers 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 Purchasers 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 Sellers.
Section 9.2. Obligations Performed.
----------- ---------------------
Purchasers shall have (i) delivered to Sellers those items required by Section
3.2(c) hereof, and (ii) 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 Adverse Litigation.
----------- ---------------------
As of the Effective Time, no action, suit, or proceeding shall be pending or
threatened against Purchasers or Sellers which might materially and adversely
affect the transactions contemplated hereunder.
Section 9.4. Regulatory Approval.
----------- -------------------
(a) Purchasers shall have received from the appropriate regulatory authorities
approval of the transactions contemplated herein; the 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) Purchasers' regulatory approvals shall not have imposed any condition which
is materially disadvantageous or burdensome to Sellers.
Section 9.5. Lessors' Consents.
----------- -----------------
Sellers shall have obtained such consents or approvals from the lessor or
sublessor as are deemed necessary or desirable by Sellers to the assignment or
sublease of the Real Property Lease.
-38-
ARTICLE X - TERMINATION
-----------------------
Section 10.1. Methods of Termination.
------------ ----------------------
This Agreement may be terminated in any of the following ways:
(1) by either Purchasers or Sellers, in writing five calendar days in
advance of such termination, if the Closing has not occurred by
August 31, 2003 (provided that a party shall not be permitted to
terminate this Agreement on such date if the failure of the
Closing to occur prior to such date arises out of or results from
the actions, inactions, or omissions of the terminating party);
(2) at any time on or prior to the Effective Time by the mutual
consent in writing of Huntington and Purchasers;
(3) by Huntington in writing if the conditions set forth in Article
IX of this Agreement shall not have been met by Purchasers or
waived in writing by Huntington prior to the Closing Date;
(4) by Purchasers in writing if the conditions set forth in Article
VIII of this Agreement shall not have been met by Sellers or
waived in writing by Purchasers prior to the Closing Date;
(5) any time prior to the Effective Time, by Purchasers or Huntington
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
Purchasers was not caused by any action or inaction of Sellers,
and Huntington may terminate this Agreement immediately if
regulatory applications are not filed within 30 calendar days
after the date of this Agreement as provided in that section; or
(6) by Huntington in writing at any time after any applicable
regulatory authority has finally denied approval of any
application of Purchasers for approval of the transactions
contemplated herein.
-39-
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:
(1) each party will return all documents, work papers, and other
materials of the other party, including photocopies or other
duplications thereof, relating to this transaction, whether
obtained before or after the execution hereof, to the party
furnishing the same;
(2) all information received by either party hereto with respect to
the business of the other party (other than information which is
a matter of public knowledge or which has heretofore been
published in any publication for public distribution or filed as
public information with any governmental authority) shall not at
any time be used for any business purpose by such party or
disclosed by such party to third persons; and
(3) each party will pay their own expenses.
Section 10.3. Payment of Expenses.
------------ -------------------
Notwithstanding section 10.2(3), 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 in law or equity, the other party shall be
entitled to recover from the breaching party upon demand, itemization, and
documentation, their reasonable outside legal, accounting, consulting, and other
out-of-pocket expenses.
ARTICLE XI - MISCELLANEOUS PROVISIONS
-------------------------------------
Section 11.1. Assignment to Subsidiaries.
------------ --------------------------
At its discretion, Huntington may cause the obligations of Sellers under this
Agreement to be fulfilled by its banking and corporate subsidiaries. Upon
identification by Huntington of the subsidiaries to be considered a Seller,
Huntington shall cause that subsidiary to enter into such agreements as may be
necessary to bind those subsidiaries as additional parties to this Agreement.
Section 11.2. Amendment and Modification.
------------ --------------------------
The parties hereto, by mutual consent, my amend, modify, and supplement this
Agreement in such manner as may be agreed upon by them in writing.
-40-
Section 11.3. 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 (i) any inaccuracies in the
representations and warranties contained herein or in any document delivered
pursuant hereto or (ii) compliance with any of the undertakings, obligations,
covenants, or other acts contained herein.
Section 11.4. 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 permitted assigns, but,
except as provided in Section 11.1 above, neither this Agreement nor any of the
rights, interests, or obligations hereunder shall be assigned by any of the
parties hereto without the prior written consent of the other.
Section 11.5. Confidentiality.
------------ ---------------
Purchasers and Sellers agree that any confidentiality agreements between
Purchasers and Sellers shall survive the execution hereof and the consummation
of the transactions contemplated herein.
Section 11.6. 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 (i) delivered
by hand (with written confirmation of receipt), (ii) deposited in the United
States Mail by registered or certified mail, return receipt requested, (iii)
sent by telecopier (with electronic confirmation of receipt), provided that a
copy is mailed by registered or certified mail, return receipt requested, or
(iv) when received by the addressee, if sent by a nationally recognized
overnight delivery service (receipt requested), in each case to the appropriate
addresses or telecopier numbers set forth below (or to such other addresses and
telecopier numbers as a party may designate by notice to the other parties):
If to Sellers, to: Huntington Bancshares Incorporated
00 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attn: Xxxxxx X. Xxxxxxxx, Senior Vice President
Facsimile Number: (000) 000-0000
-41-
with a copy to: Xxxxxxx X. Cheap, Esq.
General Counsel and Secretary
Huntington Bancshares Incorporated
00 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Facsimile Number: (000) 000-0000
If to Purchasers, to: First United Corporation
00 Xxxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attn: Xxxxxxx X. Xxxxx, Chairman and CEO
Facsimile Number: (000) 000-0000
with copies to: Xxxxx Xxxxxx
Xxxxxx, Feinblatt, Rothman, Hoffberger & Xxxxxxxxx, LLC
000 X. Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Facsimile Number: (000) 000-0000
Section 11.7. 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 11.8. Headings.
------------ --------
The headings of the Articles and Sections of this Agreement are inserted for
convenience only and shall not constitute a part thereof.
Section 11.9. Governing Law.
------------ -------------
This Agreement shall be governed by, and construed in accordance with, the laws
of the State of Ohio without regard to its conflict of laws provisions.
Section 11.10. Sole Agreement.
------------- --------------
Except for the Confidentiality 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.
-42-
Section 11.11. Parties In Interest.
------------- -------------------
Nothing in this Agreement, express or implied, including, without limiting the
generality of the foregoing in any way, the provisions of paragraph 2.6(a)
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 11.12. 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 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 Columbus,
Ohio.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their duly authorized officers as of the date first written
above.
HUNTINGTON BANCSHARES INCORPORATED
By: /s/ Xxxxxxx X. Cheap
--------------------------------------
Xxxxxxx X. Cheap, Secretary
THE HUNTINGTON NATIONAL BANK
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------------
Xxxxxx X. Xxxxxxxx, Senior Vice President
FIRST UNITED CORPORATION
By: /s/ Xxxxxxx X.Xxxxx
--------------------------------------
Xxxxxxx X. Xxxxx, Chairman of the Board and Chief Executive Officer
FIRST UNITED BANK & TRUST
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------------
Xxxxxxx X. Xxxxx, Chairman of the Board and Chief Executive Officer
-43-
PURCHASE AND ASSUMPTION AGREEMENT
Between
HUNTINGTON BANCSHARES INCORPORATED
and
FIRST UNITED CORPORATION
LIST OF EXHIBITS
Exhibit No. Description
----------- -----------
1.1 List of Banking Centers
2.1(a) List of Operating Contracts
2.1(b)(1) List of Excluded Assets
2.4(b) List of Excluded Loans
2.4(j) Form of Power of Attorney
3.2(b)(1) Form of Warranty Deed
3.2(b)(2) Form of Xxxx of Sale
3.2(b)(3) Form of Assignment and Assumption Agreement
3.2(b)(4) Form of Assignment and Assumption of Lease
3.2(b)(14) Form of Closing Statement
-44-
EXHIBIT 1.1
LIST OF BANKING CENTERS
Martinsburg Main
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
South Foxcroft Xxxxxx
000 Xxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
South Berkeley Inwood Office
US Route 11 and Xxxxx 00
Xxxxxx, XX 00000
Potomac Office
US Xxxxx 00 xxx Xxxxx Xxxx
Xxxxxxx Xxxxxx, XX 00000
Commercial Loan Center
Martinsburg Main
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
