EXHIBIT 2.1
BRANCH PURCHASE AND ASSUMPTION AGREEMENT
This BRANCH PURCHASE AND ASSUMPTION AGREEMENT (the "Agreement"), dated
as of the 20th day of July, 2005, is made and entered into by and between OLD
NATIONAL BANK, a national banking association having its principal office in
Evansville, Indiana (the "Seller"), and XXXXXX COUNTY BANK, a Tennessee state
bank having its principal office in Greeneville, Tennessee (the "Purchaser").
WITNESSETH:
WHEREAS, the Seller conducts banking and other related activities at
five branch banking offices in Xxxxxxxxxx County, Tennessee; and
WHEREAS, the Seller desires to sell certain loans and other assets and
assign certain deposit and other liabilities and obligations attributed to such
branch banking office to the Purchaser, and the Purchaser desires to purchase
such loans and assets and assume such liabilities and obligations upon the terms
and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing premises, the
representations, warranties and mutual agreements and covenants contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
PURCHASE OF ASSETS; ASSUMPTION OF LIABILITIES; PAYMENT
1.1 Identification of Branch. The Seller presently owns and operates
five branch banking offices (the "Branches") at the following locations:
00 Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, XX (Main Office);
0000 Xxxxxxx Xxxxxx, Xxxxxxxxxxx, XX (Hilldale Branch);
0000 Xxxxx Xxxxxxx Xxxx., Xxxxxxxxxxx, XX (St. Bethlehem Branch);
000 Xxxxxxxxxx Xxxx, Xxxxxxxxxxx, XX (Xxxxxxxxxx Branch); and
000 Xxxxxxxxxxx Xxxx, Xxxxxxxxxxx, XX (Sango Branch).
The Branches are the only branch banking offices of the Seller which
are the subject of this Agreement. The Seller hereby conveys the Branches to the
Purchaser through the sale to the Purchaser of certain Assets (as hereinafter
defined) and the assumption by the Purchaser of certain Assumed Liabilities (as
hereinafter defined).
1.2 Time and Place of Closing. The closing of the transactions
contemplated hereby (the "Closing") shall occur at such time and on such date as
may be mutually agreed to by the parties (the "Closing Date"), provided that
both parties shall use their reasonable efforts to close
such transactions on or before October 7, 2005. The Closing shall be held at the
offices of Bass, Xxxxx & Xxxx PLC, 000 Xxxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxx,
Xxxxxxxxx 00000 or at such other location as may be mutually agreed to by the
parties.
1.3 Purchase of Assets. Subject to Section 1.4 hereof and the other
terms and conditions of this Agreement, the Seller hereby agrees to sell,
transfer, convey, assign and deliver to the Purchaser, and the Purchaser agrees
to purchase, accept and receive from the Seller, on the Closing Date the
following assets, properties and rights free and clear of all security
interests, liens, mortgages and encumbrances, except for the security interests,
liens, mortgages and encumbrances that are in favor of the Seller with respect
to the Loans (as hereinafter defined) or that arise under applicable law and
except for the matters disclosed in Section 3.5(a) hereof with respect to the
Real Property (collectively, the "Assets"):
(a) all loans at their respective outstanding principal
amounts plus all accrued but unpaid interest and fees
thereon and related unamortized origination costs or
fees attributed to the Branches as of the close of
business on the day immediately preceding the Closing
Date, together with all security interests, liens,
mortgages, guaranties and collateral related thereto,
but excluding all loan loss reserves related thereto,
all of such loans as of July 18, 2005, being listed
on Exhibit 1.3(a) hereto (which Exhibit shall be
updated to reflect new loans made and loans paid off
between the date of this Agreement and the Closing
Date), and delivered to the Purchaser at the Closing
(collectively, the "Loans"), provided, however, that
the Loans shall not include any loans described in
Section 1.4 hereof;
(b) (i) all customer files relating to the Loans and the
Deposit Liabilities (as hereinafter defined), (ii)
all promissory notes, loan agreements, security
agreements, mortgages, guaranties and other loan
documents relating to the Loans, (iii) all signature
cards, account agreements and other deposit account
documents relating to the Deposit Liabilities, (iv)
all contracts and rental agreements relating to the
Seller's safe deposit box business at the Branches,
and (v) such other files, records, documents and
instruments as are set forth on Exhibit 1.3(b)
hereto;
(c) all overdrafts associated with all Deposit
Liabilities assumed by the Purchaser under Section
1.5 hereof;
(d) all fee simple right, title and interest in and to
the real property on which the Branches' activities
are conducted, the legal description of which is set
forth on Exhibit 1.3(d) hereto, and the buildings,
improvements and fixtures situated thereon together
with all assignable real property rights and
appurtenances pertaining thereto (collectively, the
"Real Property");
(e) all assignable leases affecting the Branches,
including all leases of real property, all equipment
leases for equipment located in the Branches, and
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all assignable operating contracts associated with
the Branches (excluding any master contracts which
cover other branches of the Seller), all of which
leases, equipment leases, and operating contracts are
listed on Exhibit 1.3(e);
(f) all rights, title and interest in and to all personal
property, furniture, fixtures, equipment, leasehold
improvements, ATM machines, and other tangible
personal property located at the Real Property and
owned by the Seller and used at the Branches, as
listed on Exhibit 1.3(f) hereto (collectively, the
"Fixed Assets"), together with any manufacturer's
warranties thereon which are in effect on the Closing
Date and which are assignable to the Purchaser;
(g) all petty, teller, ATM and vault cash maintained at
the Branches as of the close of business on the
Closing Date, the exact amounts of which will be
certified by the Seller as of the Closing Date;
(h) all rights to the extent assignable in, to and under
any vendor single interest insurance or other
insurance on collateral transferred to the Purchaser
with the Loans, except with respect to such policies
issued through Central Life Insurance Company;
(i) subject to Section 1.7 hereof, all safe deposit
contracts and rental agreements for the safe deposit
boxes located at the Branches;
(j) the local telephone and fax numbers associated
specifically with the Branches;
(k) all securities brokerage accounts maintained by the
Seller or any of its affiliates or any brokerage
company with which Seller or its affiliates have a
relationship for any customer attributed to any of
the Branches;
(l) all rights of the Seller or any of its affiliates to
solicit and service, and all relationships of the
Seller or any of its affiliates with, any and all
customers of the Branches in connection with,
annuities, securities and investment products,
including, without limitation, all rights of the
Seller or any of its affiliates to receive income,
premiums, fees or commissions relating to annuities,
securities or investment products or portfolio or
investment management services or activities
following the Closing Date by the Seller or any of
its affiliates to customers attributed to the
Branches; and
(m) all merchant services accounts associated with
Deposit Liabilities assumed by the Purchaser under
Section 1.5 hereof.
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The Purchaser hereby understands and agrees that it is purchasing only the
Assets and assuming only the Assumed Liabilities (as hereinafter defined)
specifically identified in this Agreement and, except as may be expressly
provided for in this Agreement, the Purchaser has no interest in or right to (y)
any customers of any affiliate of the Seller and (z) any relationship which the
Seller may have with any customer of any other office or branch of the Seller,
including, without limitation, any trust or insurance relationship or any other
service (other than loan, deposit, brokerage, investment or safe deposit
services) of the Seller or any of its affiliates or of any other office or
branch of the Seller which may be related to the Deposit Liabilities or the
Loans. No right to the use of any sign, trade xxxx, trade name, service xxxx or
corporate name of Seller, or any of its affiliates, is being sold hereunder.
1.4 Excluded Assets. All assets, properties and rights of the Seller
not expressly included in the Assets are excluded from the transactions
contemplated by this Agreement, including, without limitation, the following
(collectively, the "Excluded Assets"):
(a) all trade marks, service marks, trade names,
corporate names (including, without limitation, the
names "Old National", "Old National Bancorp" and "Old
National Bank"), copyrights, medallion program
stamps, signs, logos, URLs, domain names (and
associated e-mail addresses), Internet web sites,
proprietary information, stationery, forms, labels,
shipping materials, brochures, advertising and
marketing materials and other similar property or
rights owned by, relating to or referencing the
Seller or any of its affiliates;
(b) the following loans attributed to the Branches as of
the close of business on the day immediately
preceding the Closing Date shall not be sold to the
Purchaser pursuant to this Agreement:
(i) all loans with respect to which on the close
of business on the day immediately preceding
the Closing Date (A) the collateral securing
the loan has been repossessed by the Seller,
(B) the security interest in the collateral
securing the loan has not been perfected, or
(C) collection efforts have been instituted
or delivery or foreclosure proceedings have
been filed;
(ii) all loans attributed to the Branches as of
the close of business on the day immediately
preceding the Closing Date which are
recorded on the Seller's books and records
as non-accrual or which have principal or
interest that is sixty (60) days or more
past due; and
(iii) all loans attributed to the Branches as of
the close of business on the day immediately
preceding the Closing Date with respect to
which the borrower has filed a petition for
relief under the United States Bankruptcy
Code prior to the Closing Date;
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(c) all rights of the Seller or any of its affiliates to
solicit and service, and all relationships of the
Seller or any of its affiliates with, any and all
customers of the Seller (whether or not attributed to
the Branches) in connection with, insurance products
or policies, including, without limitation, all
rights of the Seller or any of its affiliates to
receive income, premiums, fees or commissions
relating to insurance products or policies prior to
or following the Closing Date by the Seller or any of
its affiliates to customers attributed to the
Branches;
(d) all rights of the Seller or any of its affiliates to
solicit and service, and all relationships of the
Seller or any of its affiliates with, any and all
customers of the Seller (whether or not attributed to
the Branches) in connection with, trusts, fiduciary
services or activities or related portfolio or
investment management services or activities,
including, without limitation, all rights of the
Seller or any of its affiliates to receive income,
premiums, fees or commissions relating to trusts,
fiduciary services or activities prior to or
following the Closing Date from any customers
attributable to the Branches;
(e) all routing numbers of the Seller used in connection
with the Deposit Liabilities or the Branches;
(f) all computer, networking and data processing
equipment, hardware and software located at or
utilized by the Branches, including, without
limitation, servers, workstations, personal
computers, CRTs, printers, routers, modems, network
hubs, data storage media, operating systems, local
area networks, custom software and off-the-shelf
software;
(g) all telephone systems leased by or located at the
Branches, as identified on Exhibit 1.4(h) hereto;
(h) all records of the Seller, except as expressly
provided in Section 1.3(b) of this Agreement;
(i) all precious metals maintained in the vaults of any
of the Branches;
(j) all other assets, properties and rights of the Seller
or any of its affiliates relating to, located at,
attributed to or used at branches, facilities or
locations of the Seller or any of its affiliates
other than the Branches; and
(k) all stock and assets used in or useful in the
operations of Central Life Insurance Company,
including any insurance policies issued by Central
Life Insurance Company and any right to receive the
premiums associated with those insurance polices.
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1.5 Assumption of Liabilities. The Purchaser hereby agrees, subject to
Section 1.6 hereof and the other terms and conditions of this Agreement, that on
and after the Closing Date it shall assume and fully and timely perform,
discharge and pay, in accordance with their respective terms, all of the
liabilities and obligations of the Seller relating to:
(a) the deposit accounts attributed to the Branches as of
the close of business on the day immediately
preceding the Closing Date (including, without
limitation, all checking, savings, certificate of
deposit, individual retirement, Xxxxx, money market,
time deposit, repurchase agreements and sweep
accounts; provided, however, that it shall not
include those certain swap account listed on Exhibit
1.5(a)(i) hereto) together with all accrued interest
relating to such deposit accounts, such deposit
accounts as of July 18, 2005, being listed on Exhibit
1.5(a)(ii) hereto (which Exhibit shall be updated to
reflect new deposits made and deposits withdrawn or
paid between the date of this Agreement and the
Closing Date) and shall be delivered to the Purchaser
at the Closing (collectively, the "Deposit
Liabilities");
(b) the Loans;
(c) all obligations relating to all escrow funds and
dealer reserves under the Loans listed on Exhibit
1.5(d);
(d) the leases, equipment leases and operating contracts
listed on Exhibit 1.3(e);
(e) all safe deposit boxes and all rental agreements and
contracts for the safe deposit boxes located at the
Branches as of the Closing Date;
(f) the operation from and after the Closing Date of the
Branches in the ordinary course of business,
including, without limitation, the payment or
provision of salary, compensation and employee
benefits to the Employees (as hereinafter defined)
arising from and after the Closing Date;
(g) the obligations of the Seller to pay the remaining
two (2) installments each in the amount of Ten
Thousand Dollars ($10,000.00) to the Economic
Development Corporation of Clarksville, Tennessee;
and
(h) all liabilities or obligations which are expressly
identified elsewhere in this Agreement as being
assumed, performed, discharged or paid by the
Purchaser.
The liabilities and obligations described in this Section 1.5 that the
Purchaser hereby agrees to assume and fully and timely perform, discharge and
pay are referred to collectively in this Agreement as the "Assumed Liabilities".
On and after the Closing Date, the Seller shall
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have no duties, responsibilities, liabilities or obligations under or with
respect to the Assumed Liabilities.
1.6 Excluded Liabilities. All liabilities and obligations of the Seller
not expressly included in the Assumed Liabilities are excluded from the
transactions contemplated in this Agreement, including, without limitation, the
following (collectively, the "Excluded Liabilities"):
(a) all deposit accounts attributed to the Branches as of
the close of business on the day immediately
preceding the Closing Date which are subject to any
order, agreement or encumbrance (other than as
reflected in the deposit agreement or certificate)
that in any way restricts the payment of funds
representing such account on the order of the
depositor;
(b) all amounts and deposits held by the Seller as
trustee, agent or similar relationship relating to
trust accounts or to other customer relationships not
being transferred pursuant to this Agreement;
(c) all liabilities associated with cashier's checks or
other official bank checks and traveler's checks
issued by the Seller at the Branches prior to the
Closing Date; and
(d) any and all other liabilities and obligations of any
kind or nature, whether actual, contingent,
disclosed, undisclosed, known or unknown, of the
Seller relating to the Branches that are not
expressly included in the Assumed Liabilities.
1.7 Safe Deposit Business.
(a) On and after the Closing Date, the Purchaser shall
assume and fully and timely perform and discharge all
of the Seller's obligations with respect to the
Seller's safe deposit box business at the Branches in
accordance with the terms and conditions of the
contracts or rental agreements related to such safe
deposit boxes.
(b) On the Closing Date, the Seller shall transfer the
records related to such safe deposit box business to
the Purchaser, and the Purchaser shall maintain and
safeguard all such records and be responsible for
granting proper access to and protecting the contents
of the safe deposit boxes at the Branches.
(c) All safe deposit box rental payments collected by the
Seller before the Closing Date for the respective
current rental terms shall be prorated between the
parties as of the Closing Date.
1.8 Bills of Sale; Deeds; Assignments; Documentation of Assumption. On
the Closing Date, the Seller shall deliver to the Purchaser such bills of sale,
deeds, assignments and
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instruments of transfer, reasonably satisfactory in form and substance to the
Seller and the Purchaser, pursuant to which the Seller will transfer title to
the Real Property by general warranty deed and all of its right, title and
interest in and to the other Assets to the Purchaser. On the Closing Date, the
Purchaser shall deliver to the Seller such undertakings and agreements,
satisfactory in form and substance to the Seller and the Purchaser, pursuant to
which the Purchaser shall assume and agree to fully and timely perform,
discharge and pay, in accordance with their respective terms, all of the Assumed
Liabilities.
1.9 Assumption Subject to Certain Terms. The liabilities and
obligations being assumed by the Purchaser pursuant to this Agreement shall be
assumed subject to the terms and conditions of the lease, deposit, loan,
security, mortgage and other written agreements relating thereto and all
applicable laws, statutes, rules, regulations and other legal requirements.
1.10 Payment. In consideration of the assumption by the Purchaser of
the Assumed Liabilities, the Seller shall transfer the Assets to the Purchaser
and shall pay the Purchaser by wire transfer of immediately available funds on
the Closing Date an amount equal to the Deposit Liabilities determined in
accordance with Section 1.5(a) hereof reduced by the sum of (a) the principal
amount of the Loans, plus the accrued but unpaid interest and fees thereon and
related unamortized origination costs or fees, but net of unearned income and
excluding loan loss and general reserves related thereto, as shown on the books
and records of the Seller as of the close of business on the day immediately
preceding the Closing Date, (b) the net book value of the Real Property on
Seller's books and records as of the close of business on the day immediately
proceeding the Closing Date as computed in accordance with accounting principles
generally accepted in the United States ("GAAP"), (c) the net book value of the
Fixed Assets on Seller's books and records as of the close of business on the
day immediately proceeding the Closing Date as computed in accordance with GAAP,
(d) the face amount of the teller, ATM and vault cash maintained at the Branches
as of the Closing Date, determined in accordance with Section 1.3(g) hereof, (e)
8.5% of the Deposit Liabilities excluding the repurchase agreement liabilities,
(f) One Hundred Fifty Thousand Dollars ($150,000.00) for the transfer of the
securities business contemplated by Sections 1.3(k), 1.3(l) and 3.26 hereof, and
(g) the net book value of the overdrafts associated with the Deposit Liabilities
on Seller's books and records as of the close of business on the day immediately
preceding the Closing Date as computed in accordance with GAAP, plus the accrued
but unpaid fees related to such overdrafts, as shown on the books and records of
the Seller as of the close of business on the day immediately preceding the
Closing Date; and such payment formula shall be further adjusted in accordance
with Section 1.11 hereof. In the event the preceding formula produces a negative
number, the absolute value of such amount shall be paid by the Purchaser to the
Seller by wire transfer of immediately available funds on the Closing Date, and
the Seller shall have no obligation to make any payment hereunder to the
Purchaser. The payment formula referred to above is for the sole purpose of
determining the amount of cash transferable at the Closing Date and shall not
constitute an allocation of the purchase price to any particular asset being
transferred or liability being assumed pursuant hereto.
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1.11 Pro-Rated Adjustment of Income and Expenses. All utility payments,
real and personal property taxes and similar expenses and charges relating to
the Real Property and the Fixed Assets, all Federal Deposit Insurance
Corporation ("FDIC") premiums and assessments and all other prepaid expenses
relating to the operation of the Branches (but excluding any such prepaid
expenses relating to the Excluded Assets or the Excluded Liabilities) shall be
prorated between the parties as of the Closing Date on the basis of a 365-day
year. To the extent any of such items has been prepaid by the Seller for a
period extending beyond the Closing Date, there shall be a proportionate
monetary adjustment in favor of the Seller and, to the extent due and payable
after the Closing Date for a period prior to the Closing Date, there shall be a
proportionate monetary adjustment in favor of the Purchaser. All taxes, utility
payments and other expenses and charges relating to the Branches to the extent
not prorated, which arise or are incurred, assessed or imposed on and after the
Closing Date for the operation of the Branches after the Closing Date shall be
paid by the Purchaser.
1.12 Allocation of Purchase Price. The purchase price for the Assets
being purchased and the Assumed Liabilities being assumed by the Purchaser
pursuant to this Agreement shall be allocated on an allocation schedule to be
agreed upon by the Purchaser and the Seller within thirty (30) days after the
Closing Date. This allocation is intended to comply with the allocation method
required by Section 1060 of the Internal Revenue Code of 1986, as amended. The
Purchaser and the Seller shall cooperate to comply with all substantive and
procedural requirements of Section 1060 and any regulations thereunder, and the
allocation shall be adjusted if and to the extent necessary to comply with the
requirements of Section 1060.
1.13 Transfer Taxes and Recording Fees. The Purchaser shall pay all
transfer and conveyance taxes and recording fees in connection with the transfer
of the Assets (including the Real Property) to the Purchaser.
1.14 Adjustments. It is understood by the parties hereto that the books
and records of the Seller may not be complete as of the Closing Date and that
certain assets and liabilities of the type constituting the Assets and the
Assumed Liabilities may not have been included therein because (a) such Assets
and Assumed Liabilities (i) were not posted on the Closing Date, or (ii) are
carried in the Seller's suspense account; or (b) for other reasons, complete
information with respect to the Assets and the Assumed Liabilities was not
otherwise available. Within thirty (30) days after the Closing Date, the Seller
and the Purchaser shall prepare a revised closing statement setting forth the
payment required pursuant to Sections 1.10 and 1.11 of this Agreement taking
into account, among other things, assets and liabilities of the type
constituting the Assets and the Assumed Liabilities and the transactions
occurring through the Closing Date and each shall afford the other and their
accountants and attorneys the opportunity to review all work papers and
documentation used in preparing the revised closing statement. Within ten (10)
days after completion of the revised closing statement ("Adjustment Date"), the
Purchaser shall pay to the Seller or the Seller shall pay to the Purchaser, as
appropriate, the difference between the amount paid on the Closing Date and the
amount required to be paid pursuant to the revised closing statement. In the
event that a dispute arises as to the appropriate amounts to be paid to either
party on the Adjustment Date, each party shall pay to the other on such
Adjustment Date all amounts other than those as to which a dispute exists. Any
disputed amounts retained by a party
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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 Adjustment Date to
the date paid at the applicable Federal Funds Rate. In the event of such a
dispute, either party may submit the matter to a firm of certified public
accountants mutually agreeable to Seller and Purchaser (the "Mediator"), which
shall determine such dispute in accordance with the terms and conditions of this
Agreement within thirty (30) calendar days after the submission. The parties
shall each pay one-half of the fees and expenses of the Mediator, except that
the Mediator may assess each party for such amount of its fees and expenses as
it determines equitable under the circumstances. The revised closing statement,
as agreed upon by the parties and determined under this subsection, shall be
final and binding upon the parties.
ARTICLE II
INDEMNIFICATION
2.1 Seller's Indemnification of Purchaser. Subject to any limitations
in this Section 2.1 through Section 2.4, Seller shall indemnify, hold harmless,
and defend the Purchaser and each of Purchaser's, and its affiliates',
directors, officers, employees, subsidiaries, affiliates, successors or assigns
(together, the "Purchaser Indemnified Parties") from and against any costs or
expenses (including reasonable attorneys' fees and expenses), judgments, fines,
claims, losses, damages and assessments (each, a "Loss", collectively, "Losses")
a Purchaser Indemnified Party incurs as a result of (a) any breach by Seller of
any of its covenants or agreements contained herein occurring prior to the
Effective Time or any of its covenants surviving the Closing, (b) any breach by
Seller of any of its representations and warranties contained herein, or in any
other certificate, document, writing or instrument delivered by Seller pursuant
to this Agreement, (c) any Excluded Liabilities, and (d) Seller's operation of
the Branches prior to the Closing.
2.2 Purchaser's Indemnification of Seller. Purchaser shall indemnify,
hold harmless, and defend Seller and its affiliates, and the officers,
directors, employees, successors and assigns of any of them (together, the
"Seller Indemnified Parties") from and against any Losses that a Seller
Indemnified Party incurs as a result of (a) any breach by Purchaser of any of
its covenants or agreements contained herein occurring prior to the Closing Date
or any of its covenants surviving the Closing Date, (b) any breach by Purchaser
of any of its representations and warranties contained herein or in any
certificate, document, writing or instrument delivered by Purchaser pursuant to
this Agreement, (c) any Assumed Liability; and (d) Purchaser's operation of the
Branches occurring from and after the Closing Date.
2.3 Claims for Indemnity.
(a) A claim for indemnity shall be made by the claiming
party at any time prior to the one (1) year
anniversary of the Closing Date 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 bona fide claim is made
within such period,
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the indemnity relating to such claim shall survive
until such claim is resolved.
(b) If any person or entity not a party to this
Agreement, including any governmental authority,
shall make any demand or claim or file or make or
threaten to file or make any lawsuit or other action
or investigation, which demand, claim, lawsuit,
action or investigation may result in any Loss to a
party hereto of the kind for which such party may
seek indemnification pursuant to Section 2.1 or
Section 2.2 hereof, such indemnified party shall
notify the indemnifying party of such demand, claim
or lawsuit within ten (10) business days of such
demand, claim, filing, making or threat; provided,
however, that any failure by the indemnified party to
so notify the indemnifying party shall not relieve
the indemnifying party from its obligations
hereunder, except to the extent that the indemnified
party is actually prejudiced by such failure to give
such notice. Following receipt of notice of a demand,
claim, lawsuit, action or investigation, the
indemnifying party (or its designee) shall have the
option, at its cost and expense, to assume the
defense of such matter and to retain counsel (not
reasonably objected to by the indemnified party) to
defend any such demand, claim or lawsuit, and the
indemnifying party shall not be liable to the
indemnified party for any fees of other counsel or
any other expenses (except as expressly provided to
the contrary herein) with respect to the defense of
such matter, other than reasonable fees and expenses
of counsel employed by the indemnified party for any
period during which the indemnifying party (or its
designee) has not assumed the defense thereof;
provided, however, that any indemnified party shall
have the right to participate, at its own expense,
with respect to such claim, demand, action or
proceeding. In effecting the settlement of any such
matter, the indemnifying party (or its designee), or
the indemnified party, as the case may be, shall act
in good faith, shall consult with the other party and
shall enter into only such settlement as the other
party shall consent in writing, such consent not to
be unreasonably withheld or delayed. An indemnifying
party (or its designee) shall not be liable for any
settlement not made in accordance with the preceding
sentence. Each party shall cooperate fully with the
other party in connection with the defense of any
such matter, and shall provide the other party with
access to the properties, books and records and
personnel of the Branches as the other party may deem
appropriate in connection with the defense of such
matter.
2.4 Limitations on Indemnification. Except as otherwise set forth
herein, Seller shall not be required to indemnify any Purchaser Indemnified
Party, and Purchaser shall not be required to indemnify any Seller Indemnified
Party, unless the aggregate amount of all Losses incurred by the Purchaser
Indemnified Parties, in the aggregate, or Seller Indemnified Parties, in the
aggregate, pursuant to Sections 2.1 or 2.2 (as the case may be), exceeds
$25,000; provided, however, that no loss shall be deemed to have been sustained
by any party to the extent of (i) any
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tax savings realized by such party with respect thereto, or (ii) any proceeds
received or receivable by such party from any insurance policies with respect
thereto. Once such aggregate amount of Losses incurred by the Purchaser
Indemnified Parties, on the one hand, or Seller Indemnified Parties, on the
other hand, exceeds $25,000, a Purchaser Indemnified Party or Seller Indemnified
Party, as the case may be, shall thereupon be entitled to indemnification only
for amounts in excess of such $25,000. The limitations contained in this section
shall not apply to any claim of common law fraud or any claims for
indemnification for Excluded Liabilities or Assumed Liabilities.
ARTICLE III
CERTAIN AGREEMENTS OF PURCHASER AND SELLER
3.1 Regulatory Approvals.
(a) The Purchaser, at its sole obligation and expense,
shall, as soon as practicable following the date of
this Agreement, but in no event later than August 8,
2005, prepare all applications, as required by
applicable law, and file such applications with the
appropriate federal and state regulatory authorities
for approval to purchase the Assets and assume the
Assumed Liabilities, to establish a branch at the
location of the Branches and to effect in all other
respects the transactions contemplated hereby (the
"Governmental Approvals"). The Purchaser agrees to
(i) make draft copies of such applications (except
for any confidential portions thereof) available to
the Seller at least two (2) business days prior to
the filing thereof, (ii) treat and pursue approval of
the applications in a diligent manner and on a
priority basis, (iii) request confidential treatment
by the appropriate federal and state regulatory
authorities of all information submitted in the
applications entitled to confidential treatment, (iv)
promptly provide the Seller with a copy of the
applications as filed (except for any confidential
portions thereof) and all approvals, denials,
requests, notices, orders, opinions, correspondence
and other documents with respect thereto, and (v) use
its reasonable efforts to obtain all Governmental
Approvals.
(b) The Seller shall, as soon as practicable following
the date of this Agreement, prepare and file with the
appropriate federal and state regulatory authorities
notice of its intent to cease operation of the
Branches and to consummate the transactions
contemplated hereby and thereafter shall use its
reasonable efforts to obtain any required permission
or approval of such regulatory authorities to cease
operating the Branches.
3.2 Access. The Seller shall afford to the Purchaser and its authorized
representatives, upon forty-eight (48) hours prior notice (or upon less prior
notice as agreed by the parties), reasonable access to the employees,
properties, books and records directly related to
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the Branches in order that the Purchaser, at Purchaser's sole expense, may have
full opportunity to make a reasonable review and investigation of the Assets and
the Assumed Liabilities at reasonable times during the Seller's regular business
hours without materially interfering with the normal business and operations of
the Branches or the affairs of the Seller. The Seller shall furnish the
Purchaser with such information as to its business, operations and properties
relating to the Branches as the Purchaser may, from time to time, reasonably
request and as shall be available which is required for inclusion in all
governmental applications necessary to effect the transactions contemplated
hereby. Nothing in this Section 2.2 shall be deemed to require the Seller to
breach any obligation of confidentiality or to reveal any proprietary
information, trade secrets or marketing, business or strategic plans.
3.3 Confidentiality. The Purchaser shall, and shall cause its
directors, officers, employees, agents and representatives to, hold in strict
confidence and not disclose to any other person or entity without the prior
written consent of the Seller (a) the terms of this Agreement, and (b) all
information received by the Purchaser or its directors, officers, employees,
agents or representatives from or with respect to the Seller, the Branches, the
Assets, the Assumed Liabilities, the customers or the transactions contemplated
hereby, except such information (i) as may be publicly available other than
through a breach of this Agreement or the wrongful dissemination of such
information by the Purchaser or its directors, officers, employees, agents or
representatives, (ii) as may be required to be disclosed by applicable law or
regulation, or (iii) as required to obtain the Government Approvals provided
that Purchaser may make such information available to its agents, attorneys and
representatives and the agents, attorneys and representatives of financial
institutions providing financing to Purchaser who agree to keep such information
in strict confidence and to use such information only in connection with
providing such financing to Purchaser. The Seller and the Purchaser agree that
neither shall issue any news or press release nor provide information to any
reporter or the media regarding this Agreement or the transactions contemplated
hereby, except as is required by applicable law, without obtaining the prior
approval of the other party. In addition to the foregoing, the Seller and the
Purchaser are parties to a separate confidentiality agreement relating to the
Branches and the transactions contemplated hereby which shall remain binding
upon the parties and in full force and effect in accordance with its terms (the
"Confidentiality Agreement").
3.4 Conversion of Accounts; Transfer and Delivery of Assets and Deposit
Liabilities.
(a) Prior to the Closing Date, the Purchaser shall assure
Seller that its data processing systems are capable
of receiving the Assets and the Deposit Liabilities
on the Closing Date. Seller and Purchaser shall
cooperate in good faith to assure an orderly
transition of ownership of the Assets and Assumed
Liabilities to Purchaser.
(b) Commencing promptly following the date hereof,
appropriate personnel of Seller and Purchaser shall
meet to discuss and draft a mutually acceptable
transition plan covering operational aspects of the
transition consistent with the terms of this
Agreement, including handling and settlement of the
following, as applicable: checks on deposit accounts
and home credit line
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accounts, loan payments, direct deposits and direct
debits through ACH or otherwise, point of sale
transactions, ATM transactions, error resolution
matters pursuant to Regulations E and Z of the
Federal Reserve Board, miscellaneous account
adjustments, daily settlement, and other settlement
and transition items. The parties shall have the
transition plan completed thirty (30) calendar days
from the date hereof.
(c) On the Closing Date, the Seller shall:
(i) deliver to the Purchaser such of the Assets
as shall be capable of physical delivery;
(ii) execute, acknowledge and deliver to the
Purchaser all such endorsements,
assignments, bills of sale, deeds (which
with respect to the Real Property shall be
general warranty deeds) and other
instruments of conveyance, assignment and
transfer as, in the reasonable judgment of
the Purchaser, shall be necessary and
appropriate to consummate the sale and
transfer of the Assets to the Purchaser and
to vest in the Purchaser the legal and
equitable title to the Assets, free and
clear of all liens and encumbrances, except
as otherwise permitted in this Agreement;
(iii) assign, transfer and deliver to the
Purchaser such of the following records
pertaining to the Deposit Liabilities as
exist and are available in whatever form or
medium is maintained by the Seller:
(A) all orders, agreements and
contracts between the Seller and
depositors attributed to the
Branches and records of similar
character, including signature
cards; and
(B) all records of account maintained
for each depositor attributed to
the Branches;
(iv) produce a bank statement for each of the
Loans transferred and Deposit Liabilities
assumed and mail, at its expense, a
statement dated as of the day immediately
prior to the Closing Date to the customer
with respect to each of the Deposit
Liabilities; and
(v) assign, transfer and deliver to the
Purchaser the promissory notes, security
agreements, mortgages and related agreements
and loan files relating to or evidencing all
Loans to the extent the same exist and in
whatever form or medium is maintained by the
Seller.
3.5 Retention of and Access to Files and Records Following the Closing
Date.
(a) The Purchaser agrees that it shall maintain, preserve
and safely keep, for as
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long as may be required by applicable law and in
accordance with customary business practices, all of
the files, books of account and records relating to
the Branches (including, without limitation, the
Assets and the Assumed Liabilities) transferred
hereunder by Seller for the joint benefit of itself
and the Seller, and that it shall permit the Seller
and its employees and representatives, at any
reasonable time during normal business hours and upon
forty-eight hours prior notice and at the Seller's
expense, to inspect, make extracts from or copies of
any such files, books of account and records as the
Seller shall deem reasonably necessary.
(b) In the event that some of the Seller's records
concerning the Deposit Liabilities cannot reasonably
be segregated from the Seller's records regarding
accounts not transferred pursuant to this Agreement,
the Seller shall not deliver such records to the
Purchaser but shall maintain, preserve and safely
keep such records for as long as may be required by
applicable law. For such period as may be required by
applicable law, the Seller shall provide research and
account history services related to any such records
to the Purchaser at the Purchaser's request. Such
services shall be provided on the same service
schedule as services then provided by the Seller to
existing customers and the Purchaser shall pay the
same rates for such services as the Seller then
charges its existing customers. Such services do not
include information required to be provided by Seller
under Section 3.15.
(c) In the event that some of the Seller's records
concerning the Excluded Loans cannot reasonably be
segregated from the Purchaser's records regarding
Loans transferred pursuant to this Agreement, the
Purchaser shall maintain, preserve and safely keep
such records for as long as may be required by
applicable law. For such period as may be required by
applicable law, the Purchaser shall provide research
and account history services related to any such
records to the Seller at the Seller's request and
Seller shall pay the same rates for such services as
Purchaser shall charge its then existing customers.
3.6 Safekeeping. The Seller agrees to transfer and deliver to the
Purchaser on the Closing Date all safe deposit box contents, including without
limitation, cash, securities, papers, valuables and other items (collectively,
"Safekeeping Items"), held by the Seller in safekeeping for its customers at the
Branches, together with all records relating thereto (in whatever form or medium
is maintained by the Seller). The Purchaser agrees to assume, honor and
discharge, from and after the Closing Date, the duties and obligations of the
Seller with respect to such safe deposit boxes and the Safekeeping Items and
shall be entitled to any right or benefit arising from such safekeeping business
from and after the Closing Date. The Purchaser agrees to execute as of the
Closing Date a receipt for such Safekeeping Items.
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3.7 Employees.
(a) The active employees of the Seller who are assigned
to the Branches as of the Closing Date (the
"Employees") shall, as of the Closing Date, be
terminated by the Seller and become employees-at-will
of the Purchaser at the base salary at least
equivalent to the rate of base salary paid by the
Seller to each of the Employees on the day
immediately preceding the Closing Date. The Seller
shall be responsible for the filing of Forms W-2 with
the Internal Revenue Service and all required filings
with state tax authorities with respect to wages and
benefits paid to each such employee for all periods
ending prior to the Closing Date.
(b) Immediately following the Closing, the Purchaser
shall make available to the Employees substantially
the same employee benefits on substantially the same
terms and conditions as the Purchaser offers to its
similarly situated employees. Years of service of
each of the Employees with the Seller, and any
predecessors, prior to the Closing shall be credited
for purposes of (i) eligibility under the Purchaser's
employee welfare benefit plans, and (ii) eligibility
and vesting, but not for purposes of benefit accrual
or contributions, under all other employee benefit
plans of the Purchaser, including, without
limitation, all pension, retirement, profit sharing,
401(k) and employee stock ownership plans. The Seller
shall be responsible for and pay all salary,
compensation and employee benefits (including,
without limitation, vacation, sick, personal and
other paid time off), and all payroll taxes in
connection therewith, for the Employees accrued,
owned or earned for all periods prior to the Closing
Date. The Purchaser shall be responsible for and pay
all salary, compensation and employee benefits
(including, without limitation, vacation, sick
personal and other paid time off), and all payroll
taxes in connection therewith, for the Employees
accrued, owned or earned for all periods on and after
the Closing Date.
(c) In accordance with the provisions of the Health
Insurance Portability and Accountability Act
("HIPAA") and the terms of the Purchaser's group
health, hospitalization, medical, dental and
disability plans (collectively, the "Purchaser's
Plans"), the Employees who become participants in the
Purchaser's Plans shall be given "creditable
coverage" credit for their coverage under the
Seller's group health, hospitalization, medical,
dental and disability plans under the pre-existing
condition limitation provisions of the Purchaser's
Plans. In addition, if a condition was not a
"pre-existing condition" for a participant in the
Seller's group health, hospitalization, medical,
dental and disability plans, then it shall not be
considered to be a pre-existing condition under the
Purchaser's Plans; provided, however, that if an
Employee's condition is being excluded as a
pre-existing condition under the relevant Seller's
plan of the Closing Date,
16
then the Purchaser may treat such condition as a
pre-existing condition under the relevant Purchaser's
Plan for the period such condition would have been
treated as a pre-existing condition under the
Seller's plan.
(d) With respect to any Employee on short term disability
or temporary leave of absence, upon conclusion of his
or her short term disability or temporary leave of
absence, subject to the terms and conditions of the
applicable plans and policies of the Purchaser and
applicable law, each Employee on such disability or
leave shall receive the salary and vacation benefits
effective when he or she went on disability or leave
and, to the extent practicable, shall be offered by
the Purchaser the same or a substantially equivalent
position to his or her position with the Seller.
(e) The Purchaser shall pay all severance obligations
arising out of the termination of any Employee's
employment after the Closing Date in accordance with
Purchaser's severance plans, policies and procedures
with the period of years of service with the Seller
credited towards the calculation of severance
benefits paid by the Purchaser; provided, however,
that if, before the one year anniversary of the
Closing Date, any Employee experiences a reduction in
base salary, a worksite relocation of more than 30
miles or a termination of employment by Purchaser for
any reason other than cause (as defined generally by
Purchaser's personnel policies and procedures), such
Employee shall be entitled to severance pay in an
amount at least equivalent to the severance pay the
Employee would have received under the Seller's
severance plans, policies and procedures had such
Employee been eligible for payments thereunder.
(f) Seller will comply with the Consolidated Omnibus
Budget Reconciliation Act of 1985 ("COBRA"), for all
of Seller's former employees and other qualifying
beneficiaries for whom COBRA qualifying events
occurred before or coincident with the Closing Date
and Purchaser shall have no responsibility for any
such coverage. Seller shall indemnify and hold
Purchaser harmless from all Losses arising as a
result of any alleged violation of the Workers
Adjustment and Retraining Notification Act to which
Seller is subject or is alleged to be subject.
3.8 Payment of Items After the Closing Date. Following the Closing
Date.
(a) The Purchaser agrees to pay in accordance with
applicable law and customary banking practices all
properly drawn and presented checks, drafts and
withdrawal orders presented to the Purchaser by mail,
over the counter or through the check clearing system
of the banking industry by depositors related to the
Deposit Liabilities, whether drawn on the checks,
withdrawal or draft forms provided by the Seller or
by the Purchaser, and in all other respects to
discharge, in the usual course of the banking
17
business, the duties and obligations of the Seller
with respect to the balances due and owing to the
depositors with respect to whom the Purchaser has
assumed the Deposit Liabilities. The Purchaser's
obligations hereunder to honor checks, drafts and
withdrawal orders on forms provided by Seller and
carrying Seller's imprint (including name and transit
routing number) shall not apply to any such check,
draft or withdrawal order presented to the Purchaser
more than sixty (60) days following the Closing Date.
(b) If any of such depositors, instead of accepting the
obligation of the Purchaser to pay the Deposit
Liabilities, shall demand payment for all or any part
of any such Deposit Liabilities, the Seller shall not
be liable or responsible for making such payment.
(c) After the Closing, the Seller shall have the rights
and obligations of a "Collecting bank" or
"Intermediary bank" under Article 4 of the Uniform
Commercial Code as adopted in Indiana Code Section
26-1-4 et seq., with respect to items drawn on the
Deposit Liabilities which are received by Seller for
processing. Items received for processing against the
Deposit Liabilities shall be grouped and delivered to
the Purchaser within the time limits provided by the
Indiana Uniform Commercial Code in a special cash
letter separately identified as "Transferred Accounts
Cash Letter." For purposes of paying the Purchaser's
obligations to the Seller under this Section 3.8, the
Purchaser will establish a settlement account with
the Seller at the Closing Date in a collected amount
equal to One Hundred Thousand Dollars ($100,000),
which amount shall be maintained by the Purchaser for
a period of sixty (60) days following the Closing
Date, against which will be (i) debited the checks,
returns, ACH charges or debits and items hereafter
referred to in this sentence, and (ii) charged
amounts in accordance with this Section 3.8(c) to
provide, among other things, for the settlement by
the Purchaser of checks, ACH charges or debits,
returns and items which are presented to the Seller
within sixty (60) days after the Closing Date and
which are drawn on or chargeable to Deposit
Liabilities transferred to the Purchaser. After the
expiration of such 60-day period following the
Closing Date, the Seller shall dishonor all checks,
drafts, withdrawal orders and other instruments and
items drawn on the Deposit Liabilities which are
presented in any manner to the Seller, unless the
Seller and the Purchaser agree to extend such 60-day
period and extend the provision for a settlement
account as necessary. The Purchaser agrees to arrange
for the transportation directly and to pay the
expenses of transporting from the Seller to the
Purchaser all checks, drafts, orders of withdrawal,
cash letters, magnetic tapes and other items related
to the Seller's receipt of items relating to the
Deposit Liabilities after the Closing Date. Such
transportation expenses may be charged against the
settlement account of the Purchaser.
18
(d) Seller will transfer to Purchaser not later than the
Closing Date all of those Automated Clearing House
("ACH") and FedWire direct deposit arrangements
related (by agreement or other standing arrangement)
to Deposits. As soon as practicable after the receipt
of all Regulatory Approvals (except for the
expiration of statutory waiting periods), Seller will
deliver to Purchaser a listing in Seller's format, as
applicable, of all such direct deposit records which
Seller, in the exercise of all reasonable efforts,
are able to identify. In connection with the
obligations under Section 3.4(b), Purchaser and
Seller shall cooperate in good faith (i) to determine
the method and timing for remitting to Purchaser and
settling, for up to a sixty (60) day period following
the Closing Date ACH direct deposits and FedWire
direct deposits relating to accounts constituting
Deposits, as well as such other matters relating
thereto as may be necessary or advisable for purposes
of assuring an orderly transition of ownership of the
Deposit Liabilities to Purchaser hereunder, and (ii)
to determine the method and timing for remitting to
Seller and settling, for up to a sixty (60) day
period following the Closing Date, ACH direct
deposits and FedWire direct deposits relating to
deposit accounts of Seller that are not Deposits, but
which transactions are nonetheless routed to
Purchaser, as well as such other matters relating
thereto as may be necessary or advisable for purposes
of assuring the orderly processing of transactions
routed to Purchaser that relate to deposit accounts
of Seller that are not Deposits.
(e) As soon as practicable after the receipt of all
Regulatory Approvals (except for the expiration of
statutory waiting periods), and after the notice
provided in Section 3.10(a), Purchaser, at its sole
cost and expense, will send appropriate notice to all
customers having accounts constituting Deposits the
terms of which provide for direct debit of such
accounts by third parties, a list of which accounts
Seller will provide to Purchaser prior to such time,
instructing such customers concerning transfer of
customer direct debit authorizations from Seller to
Purchaser. Seller shall cooperate in soliciting the
transfer of such authorizations. Such notice shall be
in a form agreed to by the parties acting in good
faith, and approved by Seller. In connection with the
obligations under Section 3.4(b), Purchaser and
Seller shall cooperate in good faith, (i) to
determine the method and timing for forwarding to
Purchaser and settling, for up to a sixty (60) day
period following the Closing Date all direct debits
relating to accounts constituting Deposits, as well
as such other matters relating thereto as may be
necessary or advisable for purposes of assuring an
orderly transition of ownership of the Deposit
Liabilities to Purchaser hereunder, and (ii) to
determine the method and timing for forwarding to
Seller and settling, for up to a sixty (60) day
period following the Closing Date all direct debits
relating to deposit accounts of Seller that are not
Deposits, but which transactions are nonetheless
routed to Purchaser, as well as such other
19
matters relating thereto as may be necessary or
advisable for purposes of assuring the orderly
processing of transactions routed to Purchaser that
relate to deposit accounts of Seller that are not
Deposits.
(f) The Purchaser agrees to pay promptly to the Seller
(i) an amount equal to the amount of any checks,
drafts and withdrawal orders credited by the Seller
before the Closing Date with respect to any of the
Deposit Liabilities that are properly returned to the
Seller unpaid after the Closing Date, and (ii) for a
period not to exceed thirty (30) days from the
Closing Date, an amount equal to the amount of any
checks, drafts and withdrawal orders credited by the
Seller after the Closing Date with respect to any of
the Deposit Liabilities that are properly returned to
the Seller unpaid after the Closing Date. Upon
receipt thereof, the Seller shall immediately forward
any such check, draft, withdrawal order or other item
to the Purchaser, and subject to the time limitations
referenced herein, the Purchaser shall remit to the
Seller the amount of each such check, draft,
withdrawal order and other item.
3.9 Loan Payments and Information Received After the Closing Date.
(a) Following the Closing Date, the Seller agrees:
(i) to credit promptly, to a deposit account of
the Purchaser maintained with the Seller, an
amount equal to any payments which are
received by the Seller on or after the
Closing Date that relate to the Loans;
(ii) to provide promptly, whether electronically
or by other means, a report containing
sufficient information, to the extent such
information is available to the Seller, so
that any such payments credited to the
Purchaser may be properly applied; and
(iii) to forward promptly, whether electronically
or by other means, to the Purchaser copies
of all notices or other correspondence
received on or after the Closing Date that
relate to the Deposit Liabilities, the Loans
or any of the other Assets.
(b) The Purchaser shall have forty-five (45) days
following the Closing to notify the Seller in writing
of any Loan that should have been excluded at the
Closing from the Assets under Section 1.4 hereof. If
such Loan is properly excluded from the Assets, the
Seller agrees to promptly repurchase such Loan for an
amount equal to the amount paid therefor by the
Purchaser.
(c) The Purchaser shall be liable for all returned checks
representing payments received by the Seller on,
prior to or after the Closing Date on any Loan.
20
The Seller shall promptly deliver each such returned
check received by it to the Purchaser, and the
Purchaser shall promptly pay to the Seller the face
amount thereof.
3.10 Notices to Customers.
(a) Not earlier than September 6, 2005 nor later than
thirty (30) days prior to the Closing Date (or such
other time as may be required by law), Seller and
Purchaser shall jointly notify customers with
Deposits that, subject to the terms and conditions of
this Agreement, Purchaser will be assuming all
Deposits and each of Seller and Purchaser shall join
in providing where appropriate, all notices to
customers of the Branches and all other persons as
Seller or Purchaser as the case may be, is or are
required to give under applicable law or the terms of
any agreements between Seller and any customer in
connection with the transactions contemplated hereby.
No earlier than September 6, 2005, Purchaser may
communicate with and deliver information to
depositors and other customers of the Branches
concerning this Agreement and the business of
Purchaser. Upon the request of Purchaser, Seller will
provide reasonable assistance to Purchaser in mailing
or causing to be mailed such communications.
Purchaser and Seller shall jointly approve in good
faith the content of all notices and communications
under this Section 3.10 prior to the distribution of
any such notices and communications.
(b) A party proposing to send or publish any notice or
communication pursuant to this Section 3.10 shall
furnish to the other party a copy of the proposed
form of such notice or communication at least five
(5) days in advance of the proposed date of the first
mailing, posting, or other dissemination thereof to
customers, and shall incorporate any changes in such
notice as the other party reasonably proposes as
necessary to comply with applicable law or which the
other party reasonably requests for any proper
business purpose. All joint notices or communications
shall be sent at the sole cost and expense of the
Purchaser.
(c) Without limiting the generality of the foregoing,
Seller shall send, or permit Purchaser to send, on
Purchaser's behalf and at Purchaser's sole cost and
expense, such notices to customers as are reasonably
requested by Purchaser, subject to the timing
restrictions in Section 3.10(a).
3.11 Notices to Obligors on Loans.
(a) Purchaser shall no earlier than September 6, 2005 nor
later than fifteen (15) days prior to the Closing
Date prepare and transmit, at Purchaser's sole cost
and expense, to each obligor on each Loan, a notice
in a form satisfying all legal requirements and
reasonably acceptable to Seller to the
21
effect that the Loan will be transferred to Purchaser
and directing that payments be made after the Closing
Date to Purchaser at any address of Purchaser
specified by Purchaser, with Purchaser's name as
payee on any checks or other instruments used to make
as payments, and, with respect to all such Loans on
which payment notices or coupon books have been
issued, to issue new notices or coupon books
reflecting the name and address of Purchaser as the
person to whom and the place at which payments are to
be made.
(b) To the extent that any of the Loans transferred from
Seller to Purchaser involve a transfer of servicing
as defined and governed by the Real Estate Settlement
Procedure Act (12 U.S.C. Section 2601 et seq.),
Seller and Purchaser will jointly coordinate and
share equally the cost and expense of any appropriate
required customer notices, provided that no such
notices shall be sent prior to September 6, 2005.
3.12 Seller Signage and Other Identification. On the Closing Date, the
Purchaser, at its expense, shall substitute its name and logo for the name and
logo of the Seller on the public signs at the Branches and shall cover,
dismantle, or discontinue the use of and make available to the Seller at the
Branches all signs which carry the name or logo of the Seller. The Seller
agrees, at its expense, to remove from the Branches as promptly as practicable
after the Closing Date such signs. The Purchaser agrees to replace reasonably
promptly all written, printed and electronic materials bearing the Seller's or
any of its affiliate's name and/or logo used at the Branches with written,
printed or electronic materials bearing the Purchaser's name and/or logo (or
such name or logo as shall be utilized by Purchaser in connection with its
operation of the Branches), including, without limitation, coupon books for
Loans, stationery, forms and marketing, advertising and other materials or
brochures. All such materials so replaced shall be removed by the Seller, at its
expense, from the Branches as promptly as practicable after the Closing Date.
3.13 Right to Intervene. In the event that any claim, demand, suit or
other proceeding is instituted or threatened against the Purchaser relating to
this Agreement, the Assets or the Assumed Liabilities, the Seller shall have the
right, at its discretion and expense, to intervene in such matter, and the
Purchaser hereby agrees to give prompt and prior notice thereof to the Seller
and consents to such intervention.
3.14 Assumption of Risks.
(a) If any of the Real Property, Leased Property or the
Fixed Assets shall be destroyed or materially damaged
by fire, wind, water or other casualty prior to the
Closing Date and shall not have insurance coverage
which in the reasonable determination of the
Purchaser is sufficient to repair or replace such
Real Property, Leased Property or Fixed Assets, the
Purchaser shall have the right to terminate this
Agreement with regard to the affected Real Property,
Leased Property or Fixed Assets or to accept the
affected Real Property, Leased Property or Fixed
Assets as destroyed
22
or damaged, together with any rights of the Seller under any
lease related thereto and to receive insurance proceeds with
respect to such destroyed or damaged Real Property, Leased
Property or Fixed Assets or to exercise any other rights of
Seller under any applicable lease.
(b) On and after the Closing Date, the Seller shall discontinue
all casualty, liability and other insurance coverage
maintained with respect to the Branches and the Assets, and
shall discontinue providing any security for persons and
property at the Branches; provided, however, that the Seller
may, at its sole option, continue to maintain insurance
coverage relating to events occurring prior to the Closing
Date. The Purchaser shall be solely responsible for all losses
and liability claims, security and insurance protection for
the Branches and their operation for all periods beginning on
and after the Closing Date. Prior to the Closing Date, risk of
loss shall be the responsibility of Seller and on and after
the Closing Date, risk of loss shall be the responsibility of
the Purchaser.
(c) On and after the Closing Date, the Purchaser shall maintain
adequate insurance with respect to the losses described in (b)
above and otherwise with respect to the operation of the
Branches.
3.15 Information Reporting. With respect to the Loans purchased and the
Deposit Liabilities assumed by the Purchaser pursuant to this Agreement, (i) the
Purchaser agrees to report to the customer and to the Internal Revenue Service
(and any state or local taxing authority as required) all interest and other
amounts paid or earned by the Seller and the applicable customer during the
entire year in which the Closing Date occurs, and (ii) the Seller agrees to
provide the Purchaser with information about the Deposit Liabilities and the
Loans through the close of business on the day immediately preceding the Closing
Date necessary for the Purchaser to comply with the requirements of this Section
2.14; and the Seller shall have no responsibility or obligation to provide such
information to any customer or the Internal Revenue Service or any state or
local taxing authority.
3.16 Environmental Study. Seller has provided Purchaser with copies of
any Phase I environmental site assessments or Phase II environmental reports, or
any similar reports, for the Real Property or Leased Property possessed by
Seller. Within thirty (30) days after the date of this Agreement, the Purchaser
may, at the Purchaser's sole cost and expense, obtain a completed Phase I
environmental site assessment ("Phase I") of any and all Real Property or Leased
Property conducted by an independent environmental investigation and testing
firm selected by the Purchaser and reasonably acceptable to the Seller. In the
event the Phase I discloses any potential environmental condition that in the
reasonable belief of the Purchaser warrants further review or investigation, the
Purchaser shall give notice of the same to the Seller within such thirty (30)
day period with respect to the specific Real Property or Leased Property
involved. The Purchaser shall purchase, or assume the lease for, any and all
Real Property or Leased Property, as the case may be, for which specific notice
is not provided within such thirty (30) day period. Upon giving the notice
required hereby, the Purchaser may, within an additional forty-
23
five (45) day period obtain a completed Phase II environmental report ("Phase
II") by the same environmental investigation and testing firm that prepared the
Phase I report; provided, however, that all testing and sampling conducted by
such firm shall be agreed upon in advance by both the Purchaser and the Seller.
All costs and expenses associated with the Phase II testing and report shall be
divided equally between the Purchaser and the Seller. The Purchaser shall
purchase, or assume the Lease of, any and all Real Property or Leased Property,
as the case may be, for which (a) the Phase I or Phase II report reveals
potential levels of environmental contaminants not in excess of federal or state
action limits, or (b) the Purchaser shall have been provided confirmation from
governmental authorities with applicable jurisdiction that no action is
required. If the Phase II report reveals levels of environmental contaminants in
excess of federal or state action limits on any Real Property, the Purchaser may
purchase such Real Property on terms and conditions mutually agreeable to the
Purchaser and the Seller. In the event that the Purchaser and the Seller fail to
reach such agreement within seventy-five (75) days following the date of this
Agreement, the Purchaser shall lease any such Real Property on terms and
conditions mutually agreeable to the Purchaser and the Seller. The Purchaser and
its employees, agents and representatives shall hold the contents of all Phase I
or Phase II reports confidential and disclose the contents thereof only with the
prior written consent of the Seller or as may be required under applicable law.
The Purchaser shall provide copies of the Phase I and Phase II reports, if any,
obtained by Purchaser to the Seller within the time periods required above for
obtaining the same.
3.17 Cooperation and Further Assurances. Each party agrees that on and
before the Closing Date (a) it shall cooperate with the other in accomplishing
the terms and conditions of this Agreement, and (b) at any time and from time to
time after the Closing Date, it shall execute and deliver to the other party
such further instruments, agreements and documents as the other party may
reasonably request to give effect to the transactions contemplated by this
Agreement.
3.18 Condition of Assets. The Purchaser has inspected the Fixed Assets
and the Real Property, observed their physical characteristics and existing
conditions and has been afforded the opportunity to conduct such inspection,
investigation and study on and of the Fixed Assets and the Real Property as it
deems necessary for the purpose of acquiring the Fixed Assets and the Real
Property for the Purchaser's intended use. On and after the Closing Date, the
Purchaser hereby waives any and all objections to or claims with respect to any
and all physical characteristics and existing conditions of the Fixed Assets and
the Real Property. The Purchaser further acknowledges and agrees that the Fixed
Assets and the Real Property are to be transferred, assigned, sold and conveyed
to, and purchased and accepted by, the Purchaser in their present condition "AS
IS, WHERE IS" and without any representations or warranties other than as
expressly stated in this Agreement.
3.19 Customers.
(a) Immediately following the Closing, the Purchaser shall take
all actions necessary to effectuate its succession to and
purchase and assumption of the Assets and the Assumed
Liabilities; provided, however, that the Purchaser understands
and agrees that the Seller does not make in this
24
Agreement, and has not otherwise made, any representation,
warranty, covenant, agreement or assurance that any of the
customers attributed to the Branches will become or continue
to be customers of the Purchaser, the same being at the sole
discretion of such customers.
(b) The Purchaser understands and agrees that the Seller does not
make in this Agreement, and has not otherwise made, any
representation, warranty, covenant, agreement or assurance
with respect to or relating in any manner to the credit risk
or creditworthiness of any obligor or guarantor under, or the
collectibility of, any of the Loans or the value of any
collateral, chattel or asset securing any of the Loans.
3.20 Conduct of Business Pending Closing Date. From the date of this
Agreement and until the earlier of the Closing Date or the termination of this
Agreement, the Seller shall:
(a) conduct business at the Branches in the ordinary course
substantially in the manner as conducted on the date of this
Agreement, except for activities or transactions contemplated
by this Agreement;
(b) not take any action or fail to take any action outside of the
ordinary course of business which will materially and
adversely affect the business relationship of the customers
attributed to the Branches with the Seller;
(c) except as set forth in Exhibit 2.19 hereto, not grant any
increase in pay or benefits to any of the Employees of the
Branches;
(d) not enter into any employment, severance or similar agreement
with any of the Employees of the Branches;
(e) not hire any new employees at the Branches or transfer any
employees to the Branches (i) except as is reasonably
necessary in the Seller's business judgment to operate the
Branches, or (ii) otherwise with the prior written consent of
the Purchaser;
(f) continue to have the right and ability to terminate, with or
without cause, any Employees of the Seller assigned to the
Branches prior to the Closing Date; and
(g) cooperate with, and assist, Purchaser in the orderly
transition of the Branches to Purchaser.
3.21 Title Matters.
(a) The Seller, at its sole expense, shall deliver to the
Purchaser not later than thirty (30) days after the date
hereof, with respect to each of the parcels of Real Property
owned by Seller, commitments for issuance of ALTA
25
Owner's Policies of Title Insurance (collectively, the "Title
Commitments" and individually, a "Title Commitment") dated
subsequent to the date of this Agreement but prior to the
Closing Date issued by a title company authorized to do
business in Tennessee and in the following amounts:
$8,086,010.50, $222,281.68, $432,440.90, and $1,536,546.47.
(b) Within ten (10) days after receipt by the Purchaser of Title
Commitments, the Purchaser shall be entitled to give the
Seller written notice of any defect disclosed in such Title
Commitment that (i) is not an easement, right-of-way or
restriction of record, if any, that does not materially
interfere with the business or operation of the Branches, (ii)
does not constitute unpaid taxes, assessments or charges not
yet delinquent, or (iii) is not reasonably approved by the
Purchaser.
(c) If the notice referred to in (b) above is timely given by the
Purchaser, the Seller shall, within ten (10) days of such
notice, notify the Purchaser as to whether the Seller shall
cure or remove any defect. If the Seller provides notice to
the Purchaser that the Seller elects not to cure or remove any
such defect, then the Seller and the Purchaser shall attempt
to renegotiate the terms and conditions of the purchase of the
affected Real Property. In the event the Seller and the
Purchaser are unable to renegotiate such terms and conditions
on terms acceptable to Purchaser within fifteen (15) days
following the Purchaser's receipt of the Seller's notice that
the Seller shall not cure or remove such defect, the Purchaser
may terminate this Agreement.
(d) The Seller shall cause the title company to update the Title
Commitments as of the business day prior to the Closing Date.
In the event that the updated Title Commitment as to any Real
Property discloses any defect not included in the original
Title Commitment, the procedure set forth in (b) and (c) above
shall apply.
3.22 Covenant Not to Compete and Agreement with Respect to Seller
Solicitations. Seller hereby covenants and agrees that following the
consummation of this transaction and for a period of three (3) years thereafter,
neither it nor any of its affiliates will (a) open a de-novo branch, operate,
control or otherwise have an interest in any financial institution, branch or
similar facility that has a place of business within the Clarksville, Tennessee
metropolitan statistical area, including specifically Xxxxxxxxxx County,
Tennessee and Christian County, Kentucky (the "Restricted Area") or (b)
establish an electronic funds transfer terminal, of any type or description,
within the Restricted Area; provided, however, that the foregoing shall not
prevent the Seller from merging with another financial institution which
operates a banking facility within the Restricted Area so long as the main
office of such institution is not in the Restricted Area. Seller further agrees
that from the date of this Agreement and for a period of three (3) years
following the Closing Date, the Seller shall not specifically solicit persons or
entities who are customers of the Branches on the day immediately preceding the
Closing Date;
26
provided, however, that the Seller shall not be restricted or prohibited from
engaging in or using general mass mailings, telemarketing programs, newspaper,
radio, television or print advertisements, the internet, the Seller's web site,
electronic advertisements or communications and other types of communications
that are directed to the general public, to existing or potential customers of
the Seller generally or to persons defined by criteria other than solely their
status as loan or deposit customers attributed to a Branches; and provided
further, however, that this covenant shall not prohibit or restrict the Seller
from soliciting or servicing persons, entities or customers (including loan and
deposit customers attributed to the Branches) with respect to any products,
services, desires, activities or relationships specifically excluded from the
transactions contemplated hereby, including, without limitation, the products,
services, activities or relationships referenced in Sections 1.4(c) and (d) of
this Agreement. For a period of two (2) years following the Closing Date, Seller
will not directly solicit for employment or hire any person who is now employed
at the Branches and continues to be employed without interruption after the
Closing Date (it being understood by the parties that advertising and other
recruiting efforts aimed at the general public shall not violate the terms of
this Agreement).
3.23 Future Filings and Recordings. Following the Closing, the
Purchaser shall, at its sole cost and expense, promptly make all filings and
recordings with and otherwise take all other actions with respect to all
governmental agencies or authorities and recorder's offices required by law or
as the Purchaser may deem necessary or advisable to reflect its purchase of the
Assets and assumption of the Assumed Liabilities and to reflect the Purchaser as
the holder of all promissory notes and the secured party with respect to all
liens, security interests, mortgages, certificates of title and other loan
documents relating to the Loans.
3.24 Certain Withholdings. On or before the Closing Date, the Seller
shall deliver to the Purchaser a list of all customers who have received "B" or
"C" notices issued by the Internal Revenue Service (the "IRS") relating to the
Deposit Liabilities. On and after the Closing Date, the Seller shall promptly
deliver to the Purchaser (a) any and all similar notices regarding the Deposit
Liabilities received from the IRS, and (b) all notices received from the IRS
releasing any governmental agency restrictions on such Deposit Liabilities. Any
amounts required by any governmental agency to be withheld from any Deposit
Liabilities (the "Withholding Obligations") and any related penalties imposed by
any governmental agency will be handled as follows:
(a) Any Withholding Obligation required to be remitted to the
appropriate governmental agency on or prior to the Closing
Date shall be withheld and remitted by the Seller, and any
other Withholding Obligation withheld by the Seller prior to
the Closing Date also shall be remitted by the Seller to the
appropriate governmental agency on or prior to the time due;
(b) Any Withholding Obligation required to be remitted to the
appropriate governmental agency after the Closing Date and not
withheld as set forth in Section 3.24(a) above shall be
withheld and remitted by the Purchaser on or prior to the time
such Withholding Obligation is due. Within five (5) days of
receipt of any such notice by the Seller, the Seller shall
notify
27
the Purchaser, and the Purchaser shall comply with the
applicable notification requirements;
(c) Any penalties described on "B" notices from the IRS or any
similar penalties which relate to the Deposit Liabilities
shall be paid by the Seller promptly upon receipt of the
notice, providing such penalty assessment resulted from the
Seller's acts, policies or omissions prior to the Closing Date
and any efforts to reduce such penalties shall be the
responsibility of the Seller; and
(d) Any penalties assessed due to information missing from
information filings regarding the Deposit Liabilities which
were due prior to the Closing Date, including without
limitation 1099 forms, shall be paid by the Seller promptly
upon receipt of the notice providing such penalty assessments
resulting from the Seller's acts, policies or omissions, and
any efforts to reduce such penalties shall be the
responsibility of the Seller.
3.25 Purchaser Financing.
(a) The Purchaser's parent company, Xxxxxx County Bancshares, Inc.
("GCB"), shall, no later than August 8, 2005, (i) obtain
financing commitments in the amount of at least Thirty Million
Dollars ($30,000,000.00) (the "Secondary Financing") which
shall be available to the Purchaser in order to achieve
regulatory capital levels and ratios on a pro forma basis as
reasonably may be required by the Federal Deposit Insurance
Corporation, the Tennessee Department of Financial
Institutions or any other state or federal banking regulatory
agency (the "Required Regulatory Capital") and (ii) have
entered into an enforceable agreement with the Purchaser for
GCB to contribute the Required Regulatory Capital to the
Purchaser concurrently with the consummation of this
Agreement.
(b) GCB intends to file a Registration Statement on Form S-3 (the
"Registration Statement") for the purpose of registering
shares of its common stock (the "Primary Financing") no later
than August 5, 2005, the proceeds of which in part will be
used to achieve the Required Regulatory Capital. In the event
that (i) GCB shall not have filed the Registration Statement
by August 5, or (ii) GCB receives notice from the Securities
and Exchange Commission that it intends to "review" the
Registration Statement, then within ten (10) business days of
such notice GCB shall close upon the Secondary Financing,
provide copies of the loan documentation related thereto to
Seller, and have readily available to it the proceeds of the
Secondary Financing.
(c) In the event that the Registration Statement has not been
declared effective by the Securities and Exchange Commission
by September 26, 2005, then
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within five (5) business days of such date, unless already
completed, GCB shall close upon the Secondary Financing,
provide copies of the loan documentation related thereto to
Seller, and have readily available to it the proceeds of the
Secondary Financing.
(d) In the event that the Primary Financing has not closed by
September 30, 2005, in an amount necessary to achieve the
Required Regulatory Capital, then within five (5) business
days of such date, unless already completed, GCB shall close
upon the Secondary Financing, provide copies of the loan
documentation related thereto to Seller, and have readily
available to it the proceeds of the Secondary Financing.
(e) The amount of the Secondary Financing shall be increased, if
necessary, to achieve the Required Regulatory Capital, and if
the Secondary Financing has already been closed as
contemplated by Section 3.25(b), (c) or (d) hereof, then the
additional amount of the Secondary Financing shall be readily
available within ten (10) business days of notice from the
banking regulator that additional regulatory capital is
required. Concurrently with the consummation of this Agreement
GCB shall contribute to the Purchaser the Required Regulatory
Capital.
3.26 Brokerage Accounts and Employees. Seller and Purchaser shall each
use their commercially reasonable efforts to transfer any joint employees of
Seller and any brokerage company performing brokerage services at the Branches
to the position of a joint employee of Purchaser and any brokerage company with
which Purchaser has a joint employment relationship for its brokerage personnel.
From the date of this Agreement through the Closing Date, Seller shall, and
shall cause its affiliates, to use its, and their, reasonable best efforts to
transfer the brokerage accounts and brokerage account agreements to UVEST
Financial Services or such other brokerage company as Purchaser shall request.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE SELLER
As an inducement to cause the Purchaser to enter into this Agreement,
the Seller hereby represents and warrants to the Purchaser as follows:
4.1 Corporate Organization. The Seller is a national banking
association duly organized, validly existing and in good standing under the laws
of the United States of America having its principal office in Evansville,
Indiana. The Seller has the power and authority to (a) own the Assets and hold
the Deposit Liabilities, (b) carry on its business at the Branches as presently
conducted, (c) execute, deliver and perform this Agreement, and (d) effect the
transactions contemplated hereby.
29
4.2 Authorization. The execution, delivery and performance of this
Agreement, and the other instruments, agreements and documents contemplated
hereby by the Seller, and the consummation by the Seller of the transactions
contemplated hereby and thereby, have been duly authorized by all necessary
corporate action on the part of the Seller. This Agreement, and all other
instruments, agreements and documents contemplated hereby executed and delivered
by the Seller, have been duly executed and delivered by the Seller and
constitute the valid and binding obligations of the Seller enforceable against
the Seller in accordance with their respective terms, subject to the provisions
of applicable bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium, receivership and conservatorship laws and all other laws relating to
or affecting the enforcement of creditors' rights generally, now or hereafter in
effect, and subject to public policy and general principles of equity.
4.3 No Conflicts. Neither the execution, delivery or performance by the
Seller of this Agreement or any of the other instruments, agreements or
documents contemplated hereby nor the consummation by the Seller of the
transactions contemplated hereby or thereby, does or will (after the giving of
notice, the lapse of time or otherwise) violate, conflict with, result in a
breach of or result in a default under (a) the Articles of Association or
By-Laws of the Seller, (b) any provision of any promissory note, mortgage,
indenture, lease or agreement, (c) any material agreement to which Seller is a
party or by which Seller is bound, (d) any contract or agreement being assumed
by Purchaser pursuant to the terms of this Agreement, or (e) any law, statute,
rule or regulation or any decree or order of any court or governmental authority
other than in connection with the Governmental Approvals.
4.4 No Litigation. Except for suits, actions or proceedings involving
the collection of delinquent accounts and garnishment proceedings in the
ordinary course of business, there are no suits, actions, proceedings,
arbitrations or mediations in any court or before any government agency or
authority, arbitration panel or mediator pending or, to the knowledge of the
Seller, threatened against or affecting the Assets or the Assumed Liabilities or
which would prevent consummation of the transactions contemplated by this
Agreement by the Seller.
4.5 Assets.
(a) The Seller has good and marketable title to the Assets free
and clear of all liens, security interests and mortgages,
other than (i) liens for unpaid taxes, assessments and charges
not yet delinquent on the Real Property and the Fixed Assets,
(ii) liens required to be granted in connection with
repurchase or reverse repurchase agreements, (iii)
imperfections of title or other matters which do not
materially detract from the current value or present use
thereof, and (iv) with respect to the Real Property,
easements, rights-of-way and other matters of record on the
Closing Date, liens and other matters disclosed in the Title
Commitments, zoning and land use laws and matters that would
be shown by a survey of the Real Property which do not
materially interfere with the business or operation of the
Branches. Except as contemplated by this Agreement, the Seller
has not sold, transferred, assigned or pledged any of the
Assets.
30
(b) There is no condemnation proceeding pending or, to the
knowledge of the Seller, threatened which would preclude or
impair the use of the Real Property as presently being used in
the conduct of business of the Branches.
(c) The Real Property and the Fixed Assets, taken as a whole, are
in good operating condition and repair, giving consideration
to their age and use and subject to ordinary wear and tear,
and will be received by the Purchaser in "AS IS, WHERE IS"
condition, with no warranties or guarantees by the Seller as
to condition, future performance, fitness for a particular
purpose, merchantability or otherwise, except those warranties
related to title. The Fixed Assets and leasehold improvements
are all of the material tangible assets owned or leased by
Seller and used by it to conduct the business of the Branches
as of the date hereof.
(d) To the knowledge of the Seller, the operation of Branches does
not violate any material zoning laws, building or fire codes
or other laws, statutes, rules, regulations, ordinances or
codes.
(e) The leases, equipment leases and contracts listed on Exhibit
1.3(e) are in full force and effect and are fully transferable
and assignable to Purchaser, and no consent of the lessor or
another party is required to assign such lease, equipment
lease or contract to Purchaser.
4.6 Loans.
(a) The Seller is the sole owner of each of the Loans, having good
title thereto, with no participation therein having been sold;
none of the Loans is pledged to a third party; the principal
balance and amount of accrued but unpaid interest and fees of
each of the Loans as shown on the Seller's books and records
as of the close of business on the day immediately preceding
the Closing Date will be true and correct; and each of the
Loans (and all notes, other evidences of indebtedness,
mortgages, loan agreements and security agreements associated
therewith) are transferred to the Purchaser hereunder without
recourse and without any representations or warranties as to
the collectibility of the Loans, the value of the collateral
securing the Loans or the creditworthiness of any Obligors (as
hereinafter defined) of any Loans.
(b) Each of the Loans was made in the ordinary course of business
and is accruing interest in accordance with the respective
terms thereof and was made, funded and remains in compliance
with all applicable material laws, orders or regulations. To
the knowledge of the Seller, except as set forth on Schedule
4.6(b), (i) each of the Loans is the legal, valid and binding
obligation of the obligor, maker, co-maker, endorser or debtor
(the
31
"Obligors") thereof, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium,
receivership and conservatorship laws and all other laws
relating to or affecting creditor's rights generally and to
public policy and general principles of equity, (ii) each of
the Loans is evidenced by notes, agreements, mortgages or
other instruments which are legal, valid, binding and
enforceable in accordance their respective terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium, receivership and conservatorship
laws and all other laws relating to or affecting creditor's
rights generally and to public policy and general principles
of equity, and (iii) no valid and legal defense, offset,
counterclaim or set-off exists with respect to any of the
Loans. The Seller may transfer or assign each of the Loans to
Buyer without the approval or consent of any Obligor.
(c) To the extent that a Loan is secured by a lien, security
interest or mortgage naming the Seller as a secured party or
mortgagee, such security interest or mortgage is legal, valid,
binding and enforceable in accordance its terms and to the
Seller's knowledge has the priority described in Seller's loan
files, except as enforceability may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium, receivership and conservatorship laws and all
other laws relating to or affecting creditor's rights
generally and to public policy and general principles of
equity.
4.7 Deposits. The balance of each deposit account included in the
Deposit Liabilities as shown on the Seller's books and records as of the close
of business on the day immediately preceding the Closing Date will be true and
correct. All of the Deposit Liabilities are insured by the FDIC to the maximum
extent provided by law. The Seller has the right to transfer or assign each of
the Deposit Liabilities to the Purchaser, subject to any pledges, liens,
judgments, court orders and restrictions on transfer.
4.8 Compliance with Laws. To the knowledge of the Seller, the Seller
has complied with all laws, statutes, rules and regulations applicable to the
Real Property, the Fixed Assets, the Deposit Liabilities and the Loans. Seller
has not been advised of any supervisory concerns regarding its compliance with
the Community Reinvestment Act in the market served by the Branches, and has no
knowledge of any planned or threatened objections by any community group to the
transactions contemplated hereby. Seller is an "eligible depository institution"
as defined in 12 C.F.R. Section 303.2(r).
4.9 No Brokers, Etc. The Seller has not employed or retained any
broker, or finder or investment banker or incurred any liability for any
brokerage, finder's, investment banker's or similar fees, commissions or
expenses in connection with this Agreement or the transactions contemplated
hereby other than Xxxxxx, Xxxxxxxx & Company, Inc. ("Stifel"). All fees,
commissions, compensation and expenses of Stifel for its services rendered to
the Seller shall be paid by the Seller.
32
4.10 Environmental Matters. To the knowledge of the Seller, the Real
Property (a) currently is and has in the past been owned and operated in
compliance with all material applicable laws, statutes, rules and regulations
relating to hazardous substances or materials and to the environment, and (b)
currently is not and has in the past not been contaminated such that any
remediation is or has been required by applicable law, statute, rule or
regulation.
4.11 Employment Contracts. Except as provided in Section 3.7(e) hereof,
no employee of the Branches is a party to any individual contract with Seller
for the employment of the employee or the provision of severance or change in
control benefits.
4.12 Consents and Approvals. Except for required regulatory approvals
and third party consents set forth on Schedule 4.12, no consents, approvals,
filings or registrations with any third party or any public body, agency or
authority are required in connection with Seller's consummation of the
transactions contemplated by this Agreement.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
As an inducement to cause Seller to enter into this Agreement, the
Purchaser hereby represents and warrants to the Seller as follows:
5.1 Corporate Organization. The Purchaser is a Tennessee state bank
duly organized, validly existing and in good standing under the laws of
Tennessee having its principal office in Greeneville, Tennessee. The Purchaser
has the power and authority to (a) own the Assets being acquired hereunder and
assume, perform, discharge and pay the Assumed Liabilities, (b) operate the
Branches, (c) execute, deliver and perform this Agreement, and (d) effect the
transactions contemplated hereby.
5.2 Authorization. The execution and delivery of this Agreement, and
all other instruments, agreements and documents contemplated hereby, by the
Purchaser, and the consummation of the transactions contemplated hereby, have
been duly authorized by all necessary corporate action on the part of the
Purchaser. This Agreement, and all other instruments, agreements and documents
contemplated hereby executed and delivered by the Purchaser, have been duly
executed and delivered by the Purchaser and constitute the valid and binding
obligations of the Purchaser enforceable against the Purchaser in accordance
with their respective terms, subject to the provisions of applicable bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium, receivership and
conservatorship laws and all other laws relating to or affecting the enforcement
of creditors' rights generally, now or hereafter in effect, and subject to
public policy and general principles of equity.
5.3 No Conflicts. Neither the execution, delivery or performance by the
Purchaser of this Agreement or any other instruments, agreements or documents
contemplated hereby nor the consummation by the Purchaser of the transactions
contemplated hereby or thereby does or will (after the giving of notice, the
lapse of time or otherwise) violate, conflict with, result in a breach
33
of or result in a default under (a) the Charter or Bylaws of the Purchaser, (b)
any provision of any agreement or any other restriction to which Purchaser is a
party or by which Purchaser or any of its properties is bound, or (c) any law,
statute, rule or regulation or any decree or order of any court or governmental
authority once the Governmental Approvals are obtained. No approval,
authorization or consent of any third party (other than the regulatory approvals
and consents referred to in Section 6.5 hereof) is necessary to enable the
Purchaser to purchase the Assets and assume the Assumed Liabilities as
contemplated by this Agreement or to enable the Purchaser otherwise to perform
its obligations hereunder.
5.4 No Litigation. There are no suits, actions, proceedings,
arbitrations or mediations in any court or before any government agency or
authority, arbitration panel or mediator pending or, to the knowledge of the
Purchaser, threatened against or affecting the Purchaser which would prevent
consummation of the transactions contemplated by this Agreement by the
Purchaser.
5.5 Regulatory Matters. The Purchaser has received no notice or
communication from any state or federal banking regulatory agency or authority
indicating that such agency or authority would, and the Purchaser has no reason
to believe any such agency or authority would, object to, or withhold any
approval or consent necessary for, the consummation by the Purchaser of the
transactions contemplated hereby. As of the date of this Agreement, there is no
pending or, to the best of the Purchaser's knowledge, threatened legal or
governmental proceedings against the Purchaser or any affiliate of the Purchaser
that would affect the Purchaser's ability to obtain the regulatory approvals
required in order to consummate the transactions contemplated hereby.
5.6 No Brokers, Etc. The Purchaser has not employed or retained any
broker, finder or investment banker or incurred any liability for any brokerage,
finder's, investment banker's or similar fees, commissions or expenses in
connection with this Agreement or the transactions contemplated hereby.
5.7 Pro Forma Capital Requirements. The Purchaser is and, on a pro
forma basis giving effect to the transactions and the financing/capital
injection contemplated by the Purchaser, will be (a) at least "adequately
capitalized", as defined for purposes of the Federal Deposit Insurance Act, and
(b) in compliance with all capital requirements, standards and ratios required
by each state or federal regulator with jurisdiction over the Purchaser,
including, without limitation, any such higher requirement, standard or ratio as
shall apply to institutions engaging in the acquisition of insured institution
deposits, assets or branches, and no such regulator is likely to, or has
indicated that it will, condition any of the Government Approvals upon an
increase in the Purchaser's capital or compliance with any capital requirement,
standard or ratio.
5.8 Antitrust. The Purchaser has no knowledge that it will be required
to divest deposit liabilities, branches, loans or any business or line of
business as a condition to the receipt of any of the Government Approvals.
5.9 CRA Rating. The Purchaser was rated "Satisfactory" or "Outstanding"
following its most recent Community Reinvestment Act examination by the
regulator responsible for its
34
supervision. The Purchaser has received no notice of and has no knowledge of any
planned or threatened objection by any community group to the transactions
contemplated hereby.
5.10 Operation of the Branches. Following the Closing, the Purchaser
intends to continue to provide retail and business banking services in the
geographical area served by the Branches.
ARTICLE VI
CONDITIONS TO SELLER'S OBLIGATIONS
The obligation of the Seller to consummate the transactions
contemplated by this Agreement are conditioned upon the satisfaction, on or
before the Closing Date, of each of the following conditions (all or any of
which may be waived in whole or in part by the Seller, except for the conditions
in Section 6.5, which cannot or will not be waived by the Seller):
6.1 Representations and Warranties True. The representations and
warranties of Purchaser contained in this Agreement that are qualified by
materiality shall be true and correct on and as of the Closing Date (except to
the extent such representations and warranties shall have been expressly made as
of an earlier date, in which case such representations and warranties shall have
been true and correct as of such earlier date) with the same force and effect as
if made on and as of the Closing Date, and the representations and warranties of
Purchaser contained in this Agreement that are not qualified as to materiality
shall be true and correct in all material respects on and as of the Closing Date
(except to the extent such representations and warranties shall have been
expressly made as of an earlier date, in which case such representations and
warranties shall have been true and correct as of such earlier date) with the
same force and effect as if made on and as of the Closing Date (except that
representations and warranties that speak as of date shall be true and correct
as of such date).
6.2 Covenants Performed. The Purchaser shall have performed and
complied in all material respects with all obligations, covenants and agreements
required by this Agreement to be performed or complied with by it on or prior to
the Closing Date.
6.3 No Adverse Litigation. No claim, action, suit or proceeding shall
be pending or threatened against the Purchaser or the Seller as of the Closing
Date which might reasonably be expected to (a) materially and adversely affect
the Branches, the Assets or the Assumed Liabilities, or (b) materially and
adversely affect the transactions contemplated by this Agreement.
6.4 Officer's Certificate. The Purchaser shall have delivered to the
Seller a certificate of its Chairman, President or any Executive Vice President,
dated as of the Closing Date, certifying to the satisfaction of each of the
foregoing conditions.
6.5 Regulatory Approvals. The Purchaser shall have received from the
appropriate regulatory authorities all Governmental Approvals relating to (a)
the transactions contemplated
35
by this Agreement, and (b) the operation of the Branches by the Purchaser. The
Seller shall not have been notified by any regulatory authority that the
discontinued operation of the Branches by the Seller would be a violation of any
law, statute, rule or regulation or any policy of any governmental authority.
6.6 Closing Documents. The Purchaser shall have delivered to the
Seller, in form and substance reasonably satisfactory to the Seller, (a) an
Assignment and Assumption Agreement executed by the Purchaser pursuant to which
the Purchaser shall assume and fully and timely perform, discharge and pay the
Assumed Liabilities, (b) the receipt for the items in the safe deposit boxes
contemplated by Section 3.6 hereof, and (c) all other agreements, instruments
and documents executed by the Purchaser as are required by this Agreement to
consummate the transactions contemplated hereby.
6.7 Board Resolutions. The Purchaser shall have delivered to the Seller
copies of the resolutions, certified by a duly authorized officer of the
Purchaser, duly adopted by the Purchaser's Board of Directors authorizing and
approving this Agreement and the agreements, instruments, documents and
transactions contemplated hereby.
6.8 Related Agreements. At or prior to the Closing, the Purchaser shall
have executed and delivered to the Seller all agreements, instruments, documents
and certificates contemplated by this Agreement required to be executed and
delivered by the Purchaser.
ARTICLE VII
CONDITIONS TO PURCHASER'S OBLIGATIONS
The obligation of the Purchaser to consummate the transactions
contemplated by this Agreement are conditioned upon the satisfaction, on or
before the Closing Date, of each of the following conditions (all or any of
which may be waived in whole or in part by the Purchaser, except for the
conditions in Section 6.5, which cannot be waived by the Purchaser):
7.1 Representations and Warranties True. The representations and
warranties of Seller contained in this Agreement that are qualified by
materiality shall be true and correct on and as of the Closing Date (except to
the extent such representations and warranties shall have been expressly made as
of an earlier date, in which case such representations and warranties shall have
been true and correct as of such earlier date) with the same force and effect as
if made on and as of the Closing Date, and the representations and warranties of
Seller contained in this Agreement that are not qualified as to materiality
shall be true and correct in all material respects on and as of the Closing Date
(except to the extent such representations and warranties shall have been
expressly made as of an earlier date, in which case such representations and
warranties shall have been true and correct as of such earlier date) with the
same force and effect as if made on and as of the Closing Date.
36
7.2 Covenants Performed. The Seller shall have performed and complied
in all material respects with all obligations, covenants and agreements required
by this Agreement to be performed or complied with by it on or prior to the
Closing Date.
7.3 No Adverse Litigation. No claim, action, suit or proceeding shall
be pending or threatened against the Purchaser or the Seller as of the Closing
Date which might reasonably be expected to (a) materially and adversely affect
the Branches, the Assets or the Assumed Liabilities, or (b) materially and
adversely affect the transactions contemplated by this Agreement.
7.4 Officer's Certificate. The Seller shall have delivered to the
Purchaser a certificate of its Chairman, President or any Executive Vice
President, dated as of the Closing Date, certifying to the satisfaction of each
of the foregoing conditions.
7.5 Regulatory Approvals. The Purchaser shall have received from the
appropriate regulatory authorities all Governmental Approvals relating to (a)
the transactions contemplated by this Agreement, and (b) the operation of the
Branches by the Purchaser. The Seller shall not have been notified by any
regulatory authority that the discontinued operation of the Branches by the
Seller would be a violation of any law, statute, rule or regulation or any
policy of any governmental authority.
7.6 Closing Documents. The Seller shall have delivered to the
Purchaser, in form and substance reasonably satisfactory to the Purchaser, (a)
an Assignment and Assumption Agreement executed by the Seller pursuant to which
the Seller shall assign the Assumed Liabilities to the Purchaser, (b) a Xxxx of
Sale for the Fixed Assets, (c) Corporate Warranty Deeds for the Real Property,
and (d) all other agreements, instruments and documents executed by the Seller
as are required by this Agreement to consummate the transactions contemplated
hereby.
7.7 Board Resolutions. The Seller shall have delivered to the Purchaser
copies of the resolutions, certified by a duly authorized officer of the Seller,
duly adopted by the Seller's Board of Directors authorizing and approving this
Agreement and the agreements, instruments, documents and transactions
contemplated hereby.
7.8 Related Agreements. At or prior to the Closing, the Seller shall
have executed and delivered to the Purchaser all agreements, instruments,
documents and certificates contemplated by this Agreement required to be
executed and delivered by the Seller.
7.9 Consents. Purchaser shall have received from Seller executed
counterparts of the consents referred to in Section 4.12 hereof and all other
consents required for the consummation of the transactions contemplated hereby,
all of which shall be in form and substance reasonably satisfactory to
Purchaser.
7.10 No Seller Material Adverse Effect. There shall not have occurred
and be continuing since the date of this Agreement, any change, condition, event
or development that individually, or in the aggregate, has had or could
reasonably be expected to have a material adverse effect on the business,
condition, assets, properties, rights, prospects or results of
37
operations of the Branches or the ability of Seller to consummate the
transactions contemplated hereby.
ARTICLE VIII
TERMINATION
8.1 Methods of Termination. This Agreement and the transactions
contemplated hereby may be terminated in any one of the following ways:
(a) at any time on or before the Closing Date by the agreement in
writing of the Purchaser and the Seller;
(b) on the Closing Date by the Seller in writing if the conditions
set forth in Article VI of this Agreement shall not have been
satisfied or waived in writing by the Seller;
(c) on the Closing Date by the Purchaser in writing if the
conditions set forth in Article VII of this Agreement shall
not have been satisfied or waived in writing by the Purchaser;
(d) at any time on or before the Closing Date by the Purchaser or
the Seller in writing if the other shall have breached any of
its respective representations or warranties contained herein
in any material respect or any of its respective covenants,
agreements or obligations contained herein in any material
respect, and such breach has not been cured by the earlier of
(i) fifteen (15) days after the giving of notice to the
breaching party of such breach, or (ii) the Closing Date;
provided, however, that neither party hereto may terminate
this Agreement on account of its own breach hereof;
(e) by either the Seller or the Purchaser in writing at any time
after any of the regulatory authorities has denied any
application, notice or request of the Purchaser for approval
of the transactions contemplated hereby or has imposed a
condition or requirement (other than regulatory capital levels
or ratios) that is reasonably unacceptable to either party;
(f) by the Seller in writing, at any time if the Purchaser or GCB
shall have failed to take any of the actions contemplated by
Section 3.25 hereof; or
(g) by either the Seller or the Purchaser in writing if the
transactions contemplated hereby are not consummated on or
before November 15, 2005, unless extended by a written
agreement by the Seller and Purchaser; provided, however, that
such date shall be extended to no later than November 30,
2005, to accommodate any applicable federal or state waiting
periods.
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8.2 Procedure Upon Termination. In the event of termination pursuant to
Section 8.1 hereof, this Agreement shall thereupon terminate and be of no
further force or effect immediately upon receipt of the written notice required
hereby or, in the case of Section 8.1(d), upon the passage of fifteen (15) days
following such notice if no cure of a breach has occurred. If this Agreement is
terminated as provided herein:
(a) each party shall (and shall cause its respective employees,
agents and representatives to) return to the party furnishing
the same all information, documents, work papers and other
materials (regardless of whether the same is in printed,
electronic or computerized form and including, without
limitation, all copies and summaries thereof) of the other
party or relating to the other party, its customers or
employees or the transactions contemplated hereby, whether
obtained before or after the execution hereof, and
(b) all information received by either party hereto with respect
to the business, operations and customers of the other party
(except information which is available to the public or which
has heretofore been or is hereafter filed as public
information with any governmental authority, other than
through a breach of this Agreement) shall not at any time be
used for any business purpose by such party or disclosed by
such party to any other person or entity.
The requirements of this Section 8.2 shall be deemed to survive the termination
of this Agreement.
8.3 Liabilities Upon Termination. In the event of the termination of
this Agreement pursuant to the terms and provisions hereof, neither party hereto
shall have any liability hereunder of any nature whatsoever to the other,
including, without limitation, any liability for monetary damages; provided,
however, that (a) the foregoing shall not preclude liability from attaching to a
party who has intentionally breached or violated any of the provisions hereof,
and (b) the termination of this Agreement shall not terminate or affect any of
the provisions contained in Article VIII hereof or the agreements of the parties
hereto with respect to confidentiality contained in Section 2.3 hereof and in
the Confidentiality Agreement.
8.4 Seller Break-up Fee.
(a) The parties hereby acknowledge and agree that the Seller has
committed and will commit substantial time, effort, resources
and expenses, will forgo other opportunities in pursuing the
transactions contemplated by this Agreement and would not
enter into this Agreement unless Purchaser agreed to the
provisions of this Section 8.4. Purchaser agrees that it shall
pay in immediately available funds to the Seller a break-up
fee in the amount of Seven Hundred and Fifty Thousand and
No/100 Dollars
39
($750,000.00), (the "Seller Break-up Fee"), in the event that
the Seller terminates this Agreement pursuant to Section
8.1(f) hereof.
(b) The Seller Break-up Fee shall be paid to the Seller within
thirty (30) days of the occurrence of the event specified in
Section 8.4(a) hereof. If the Seller Break-up Fee is not paid
as provided, then the Seller shall be entitled to recover
interest at the highest prime rate set forth in The Wall
Street Journal under the section entitled "Money Rates" on the
unpaid amount of the Seller Break-up Fee from the time the
Seller Break-up Fee is due until paid-in-full, together with
all costs of collection thereof, including reasonable
attorneys' fees and expenses.
(c) Seller and Purchaser hereby acknowledge and agree that the
Seller Break-up Fee shall compensate the Seller for (i)
expenses incurred for attorneys, accountants, financial
advisors and consultants of Seller in pursuing this Agreement
and the transactions contemplated hereby, and (ii) Seller's
management time and expense in investigating, analyzing,
developing and pursuing this Agreement and the transactions
contemplated hereby. Purchaser further acknowledges and agrees
that the amount of the Seller Break-up Fee is fair, reasonable
and not a penalty and that its obligation to pay the Break-up
Fee shall survive any termination of this Agreement by the
Seller and the Purchaser.
ARTICLE IX
MISCELLANEOUS
9.1 Entire Agreement. This Agreement, the Exhibits hereto, the
Confidentiality Agreement and the instruments, agreements, certificates and
documents contemplated hereby supersede all other prior or contemporaneous
understandings, commitments, representations, negotiations, discussions and
agreements, whether oral or written or express or implied, between the parties
hereto relating to the matters contemplated hereby and constitute the entire
agreement between the parties hereto relating to the transactions contemplated
hereby.
9.2 Binding Effect; Assignment. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns; provided, however, that neither party may assign this Agreement
without the prior written consent of the other party, except that no consent
shall be required if this Agreement is assigned to any affiliate of either party
or is assigned by operation of law pursuant to a statutory merger or share
exchange involving either party.
9.3 Amendment and Modification. The parties hereto may amend, modify or
supplement this Agreement only by an agreement in writing executed by the Seller
and the Purchaser.
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9.4 Waiver or Extension. Either party hereto may by an instrument in
writing waive the performance by the other of any of the covenants or agreements
to be performed by such other party under this Agreement; provided, however,
that neither party may waive the requirement for obtaining the Governmental
Approvals. The failure of either party hereto at any time to insist upon the
strict performance of any covenant, agreement or provision of this Agreement
shall not be construed as a waiver or relinquishment of the right to insist upon
strict performance of such covenant, agreement or provision at a future time.
The waiver by any party hereto of a breach of or noncompliance with any
provision of this Agreement shall not operate or be construed as a continuing
waiver or a waiver of any other or subsequent breach or noncompliance hereunder.
9.5 Payment of Expenses. Except as otherwise expressly provided in this
Agreement, each party hereto shall bear and pay all costs and expenses incurred
by it or on its behalf in connection with this Agreement and the transactions
contemplated hereunder. Except as otherwise expressly provided herein, all
expenses, fees and costs (including, without limitation, filing fees) necessary
for any Government Approvals or for any notice to depositors of the assumption
of the Deposit Liabilities or to customers of the purchase of the Loans shall be
paid by the Purchaser.
9.6 Notices. All notices, requests and other communications hereunder
shall be in writing (which shall include facsimile communication) and shall be
deemed to have been duly given if (a) delivered by hand and receipted for, (b)
sent by certified United States Mail, return receipt requested, first class
postage pre-paid, (c) delivered by receipted overnight delivery service or (d)
delivered by facsimile transmission if such fax is confirmed immediately
thereafter by also mailing a copy of such notice, request or other communication
by certified United States Mail, return receipt requested, first class postage
pre-paid, as follows:
If to Seller to: with a copy to (which shall not
constitute notice):
Xxxxxxx X. Xxxxxx, Esq. Xxxxxxx X. Xxxxxxxxx, Esq.
Executive Vice President, Xxxxx XxXxxxx LLP
Corporate Secretary and General Counsel One Indiana Square, Suite 0000
Xxx Xxxxxxxx Xxxxxxx Xxxxxxxxxxxx, Xxxxxxx 00000-0000
000 Xxxx Xxxxxx Telephone: (000) 000-0000
Xxxxxxxxxx, Xxxxxxx 00000 Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
41
If to Seller to: with a copy to (which shall not
constitute notice):
Xxxx Xxxxxxx Xxx X. Xxxxxxxx, Esq.
Chief Executive Officer Bass, Xxxxx & Xxxx PLC
Xxxxxx County Bank 000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
000 Xxxxx Xxxx Xxxxxx Xxxxxxxxx, XX 00000-0000
Xxxxxxxxxxx, XX 00000-0000 Telephone: (000) 000-0000
Telephone: 000-000-0000 Facsimile: (000) 000-0000
Facsimile: 000-000-0000
or such substituted address or person as either party has given to the other in
writing.
All such notices, requests and other communications shall be effective
(a) if delivered by hand, when delivered, (b) if mailed in the manner provided
herein, two (2) business days after deposit with the United States Postal
Service, (c) if delivered by overnight express delivery service, on the next
business day after deposit with such service, and (d) if by facsimile
transmission, on the date indicated on the fax confirmation page of the sender
if such fax also is confirmed by mail in the manner provided herein.
9.7 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but such counterparts shall
together constitute one and the same agreement.
9.8 Headings. The headings and defined terms in this Agreement have
been inserted and used solely for ease of reference and shall not be considered
in the interpretation, construction or enforcement of this Agreement.
9.9 Governing Law. This Agreement (including, without limitation, any
and all demands, controversies, claims, actions, causes of action, suits,
proceedings and litigation between or among the parties hereto arising out of or
relating to this Agreement or its breach, the construction of its terms or the
interpretation of the rights and duties of the parties) shall be governed by and
construed in accordance with the laws of the State of Indiana, without giving
effect to any choice or conflict of law provisions, principles or rules (whether
of the State of Indiana or any other jurisdiction) that would cause the
application of any laws of any jurisdiction other than the State of Indiana.
9.10 Severability. In case any one or more of the provisions (or any
portion thereof) contained herein shall, for any reason, be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this Agreement, but
this Agreement shall be construed as if such invalid, illegal or unenforceable
provision or provisions (or portion thereof) had never been contained herein.
42
9.11 No Third-Party Rights. Nothing in this Agreement, expressed or
implied, is intended to confer upon any person or entity, other than the parties
hereto, or their respective permitted successors and assigns, any rights,
remedies, obligations or liabilities under or by reason of this Agreement.
9.12 Construction. This Agreement is the product of negotiation by both
parties hereto and shall be deemed to have been drafted by both parties hereto.
This Agreement shall be construed in accordance with the fair meaning of its
provisions and its language shall not be strictly construed against, nor shall
ambiguities be resolved against, either party.
9.13 Certain References. Whenever in this Agreement a singular word is
used, it also shall include the plural wherever required by the context and
vice-versa. All references to the masculine, feminine or neuter genders herein
shall include any other gender, as the context requires.
9.14 Exhibits. The exhibits attached hereto are incorporated into and
made a part of this Agreement.
9.15 Facsimile. This Agreement may be executed and delivered by either
hereto party by facsimile transmission. For purposes of this Agreement, any
signature page signed and transmitted by facsimile machine or telecopier shall
be treated as an original document, and the signature of either party thereon,
for purposes hereof, shall be considered as an original signature and the
document transmitted shall be considered to have the same binding effect as an
original signature on an original document. Neither party may raise the use of a
facsimile machine or telecopier or the fact that any signature was transmitted
through the use of a facsimile machine or telecopier in accordance with this
Section as a defense to the enforcement of this Agreement, any amendment hereto
or any other document contemplated hereby.
9.16 Limitation on Damages. Notwithstanding anything in this Agreement
to the contrary, in no event shall either party hereto be entitled to recover
from the other party hereto special, punitive, incidental or consequential
damages (including without limitation damages based upon lost profits or lost
business opportunities) arising out of or relating to a breach by such other
parties of any of its representations, warranties, covenants or obligations
under this Agreement, even if the party in breach has been advised of the
possibility of such damages.
9.17 Survival of Representations, Warranties and Covenants. All
representations and warranties of the Seller and the Purchaser, respectively,
contained in this Agreement shall survive the Closing for one year. All
covenants, obligations, agreements, understandings and acknowledgments of the
Seller and the Purchaser, respectively, contained in this Agreement or in any
certificate, instrument or other agreement or document contemplated hereby shall
survive the Closing and shall continue to be in full force and effect following
the Closing in accordance with this Agreement and any such certificate,
instrument or other agreement or document.
9.18 Definition of "Affiliates". For purposes of this Agreement, the
term "affiliate" or "affiliates" shall mean with respect to the Seller or the
Purchaser, as required by the context, any and all (a) direct and indirect
parent corporations and subsidiaries of the Seller or the Purchaser,
43
(b) direct and indirect subsidiaries of the Seller's or the Purchaser's parent
corporation, and (c) entities controlled by or controlling the Seller or the
Purchaser.
9.19 Specific Performance. Each of the parties acknowledges and agrees
that the other party would be damaged irreparably in the event any of the
provisions of this Agreement are not performed in accordance with their specific
terms or otherwise are breached. Accordingly, each of the parties agrees that
the other party shall be entitled to seek an injunction or injunctions to
prevent breaches of the provisions of this Agreement and to enforce specifically
this Agreement and the terms and provisions hereof in any action instituted in
any court of the United States or any state thereof having jurisdiction over the
parties and the matter, in addition to any other remedy to which it may be
entitled, at law or in equity.
* * *
44
IN WITNESS WHEREOF, the parties hereto have made, entered into,
executed and delivered this Agreement as of the day and year first above
written.
OLD NATIONAL BANK
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
---------------------------
Printed: Xxxxxxxxxxx X. Xxxxxxx
----------------------
Its: EVP & CFO
--------------------------
ATTEST:
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------
Printed: Xxxxxxx X. Xxxxxx
------------------------
Its: Corporate Secretary
----------------------------
XXXXXX COUNTY BANK
By: /s/ Xxxx Xxxxxxx
---------------------------
Printed: Xxxx Xxxxxxx
----------------------
Its: Chairman & CEO
--------------------------
ATTEST:
By: /s/ Xxxxx X. Xxxxx
-----------------------------
Printed: Xxxxx X. Xxxxx
------------------------
Its: Sr. V-P
----------------------------
45
