BRANCH PURCHASE AND ASSUMPTION AGREEMENT
EXHIBIT
2.1
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;
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| (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
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;
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| (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;
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| (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.
|
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;
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| (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;
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| (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;
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| (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
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| (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”);
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| (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;
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| (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.
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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 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;
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| (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
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| (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.
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1.7 Safe
Deposit Business.
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*
The company is requesting confidential treatment of the text set forth in
brackets below.
| (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.
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| (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.
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| (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.
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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 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) [__]*% 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.
-6-
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
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.
-7-
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.
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(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,
the indemnity relating to such claim shall survive until such claim
is
resolved.
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|
(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.
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-8-
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 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.
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| (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.
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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 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.
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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.
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| (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
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.
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| (c) |
On
the Closing Date, the Seller shall:
|
| (i) |
deliver
to the Purchaser such of the Assets as shall be capable of physical
delivery;
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| (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;
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| (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
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|
(B)
|
all
records of account maintained for each depositor attributed to
the
Branches;
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-10-
| (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.
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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
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.
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| (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.
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| (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.
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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.
-11-
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.
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| (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.
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| (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, 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.
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| (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.
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| (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.
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| (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.
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-12-
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
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.
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| (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.
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| (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 § 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.
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-13-
| (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.
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| (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 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.
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| (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.
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-14-
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.
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| (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.
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| (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.
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.
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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.
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|
(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.
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|
(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).
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-15-
| 3.11 |
Notices
to Obligors on Loans.
|
|
(a)
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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
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.
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|
(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
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.
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| (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.
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| (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.
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-16-
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-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.
-17-
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 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.
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| (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.
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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;
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| (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;
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| (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;
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| (d) |
not
enter into any employment, severance or similar agreement with any
of the
Employees of the Branches;
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| (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;
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| (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
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| (g) |
cooperate
with, and assist, Purchaser in the orderly transition of the Branches
to
Purchaser.
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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
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.
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-18-
| (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.
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| (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.
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| (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.
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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; 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.
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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;
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| (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 the Purchaser, and the Purchaser shall comply with the applicable
notification requirements;
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| (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
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| (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.
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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.
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|
(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.
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-20-
|
(c)
|
In
the event that the Registration Statement has not been declared effective
by the Securities and Exchange Commission by September 26, 2005,
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.
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|
(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.
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|
(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.
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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.
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.
-21-
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.
|
| (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.
|
-22-
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
“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.
-23-
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 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.
-24-
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
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).
-25-
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 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.
-26-
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
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;
|
-27-
| (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.
|
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.
-28-
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 ($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.
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.
-29-
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.
Executive
Vice President,
Corporate
Secretary and General Counsel
Old
National Bancorp
000
Xxxx Xxxxxx
Xxxxxxxxxx,
Xxxxxxx 00000
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
|
Xxxxxxx
X. Xxxxxxxxx, Esq.
Xxxxx
XxXxxxx LLP
Xxx
Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxxx,
Xxxxxxx 00000-0000
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
|
|
|
If
to Seller to:
|
with
a copy to (which shall not constitute notice):
|
|
|
Xxxx
Xxxxxxx
Chief
Executive Officer
Xxxxxx
County Bank
000
Xxxxx Xxxx Xxxxxx
Xxxxxxxxxxx,
XX 00000-0000
Telephone:
000-000-0000
Facsimile:
000-000-0000
|
Xxx
X. Xxxxxxxx, Esq.
Bass,
Xxxxx & Xxxx PLC
000
Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx,
XX 00000-0000
Telephone:
(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.
-30-
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.
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.
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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, (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.
*
*
*
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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 | ||
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| By: | /s/ Xxxxxxxxxxx X. Xxxxxxx | |
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Printed:
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Xxxxxxxxxxx X. Xxxxxxx | |
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| Its: | EVP & CFO | |
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| ATTEST: | |
| By: | /s/ Xxxxxxx X. Xxxxxx |
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| Printed: | Xxxxxxx X. Xxxxxx |
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| Its: | Corporate Secretary |
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| XXXXXX COUNTY BANK | ||
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| By: | /s/ Xxxx Xxxxxxx | |
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Printed:
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Xxxx Xxxxxxx | |
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| Its: | Chairman & CEO | |
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| ATTEST: | |
| By: | /s/ Xxxxx X. Xxxxx |
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| Printed: | Xxxxx X. Xxxxx |
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| Its: | Sr. V-P |
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