ASSIGNMENT AND ASSUMPTION AGREEMENT
This Assignment and Assumption
Agreement (this “Agreement”) is made
and entered into as of May 7, 2010, by and between FARMERS STATE BANK OF ALTO
PASS, ILL., an Illinois state bank having its executive offices in Harrisburg,
Illinois (“Assignor”) and GERMAN
AMERICAN BANCORP, an Indiana banking corporation having its executive offices in
Jasper, Indiana (“Assignee”).
WHEREAS, Assignor and Assignee are
parties to that certain Branch Purchase Agreement, dated as of February 17, 2010
(the “Purchase
Agreement”), pursuant to which Assignee has agreed to purchase the Assets
and assume the Liabilities associated with two of Assignor’s branch offices;
and
WHEREAS, pursuant to the Purchase
Agreement, Assignor has agreed to assign certain rights and agreements to
Assignee, and Assignee has agreed to assume certain obligations of Assignor, as
set forth herein, and this Agreement is contemplated by Section 6(a)(7) of
the Purchase Agreement;
NOW, THEREFORE, for and in
consideration of the premises and the mutual covenants contained herein, and for
other good and valuable consideration, the receipt, adequacy and legal
sufficiency of which are hereby acknowledged, the parties do hereby agree as
follows:
1. Capitalized
Terms. Capitalized terms used but not defined herein shall
have the meanings for such terms that are set forth in the Purchase
Agreement.
2. Assignment and
Assumption. Effective as of the Effective Time, Assignor
hereby assigns, sells, transfers and sets over (collectively, the “Assignment”) to
Assignee all of Assignor’s right, title, benefit, privileges and interest in and
to, and all of Assignor’s burdens, obligations and liabilities in connection
with each of the Liabilities. For the avoidance of doubt, this
assumption includes, without limitation, and only to the extent that such are to
be paid or performed after the Effective Time, all of Assignor's duties,
responsibilities and obligations under (a) each of the Assigned Contracts that
are being assigned to Assignee as of the Effective Time (as defined in Section
1(g) of the Purchase Agreement and as contemplated by Section 2(a)(2) of the
Purchase Agreement) and (b) each of the obligations of Assignor to extend credit
(pursuant to lines of credit or letters of credit) to or for the account of
borrowers under the Loans (as contemplated by Section 2(a)(3) of the Purchase
Agreement) to the extent specifically identified on the Draft Loan Schedule
delivered at the closing of the transactions contemplated by the Purchase
Agreement; provided,
however, and for the avoidance of doubt, that Assignee's assumption of
such obligations to extend credit shall not include any commitments
to extend credit to the customers identified as borrowers under the Kick-Out
Loans Schedule and their affiliates and related parties. Assignee hereby accepts
the Assignment and assumes and agrees to observe and perform all of the duties,
obligations, terms, provisions and covenants, and to pay and discharge all of
the Liabilities to be observed, performed, paid or discharged from and after the
Effective Time, in connection with the Liabilities. Assignee assumes
no liabilities, other than the Liabilities, and the parties hereto agree that
all such liabilities, other than the Liabilities, shall remain the sole
responsibility of Assignor.
For any financing statement, or Uniform
Commercial Code (“UCC”) related
document, filed in any jurisdiction, identifying Assignor as secured party with
respect to any security interest in collateral being assigned hereunder, the
Assignor hereby irrevocably authorizes, consents and appoints Assignee to take
all such action, or to file, or provide any such document, that may be acquired,
or that Assignee may desire, to amend, alter or modify any such financing
statement, or UCC-related document, to designate Assignee as the new secured
party and assignee of all right, title and interest that Assignor may have
possessed as secured party under any such financing statements or UCC-related
documents, without any further notice required to be provided to, or consent
required of Assignor.
3. Terms of the Purchase
Agreement. The terms of the Purchase Agreement, including but
not limited to Assignor’s and Assignee’s respective, representations,
warranties, covenants, agreements and indemnities relating to the Liabilities,
are incorporated herein by this reference. Each of Assignor and
Assignee acknowledges and agrees that its respective representations,
warranties, covenants, agreements and indemnities contained in the Purchase
Agreement shall not be superseded hereby but shall remain in full force and
effect to the full extent provided therein. In the event of any
conflict or inconsistency between the terms of the Purchase Agreement and the
terms hereof, the terms of the Purchase Agreement shall govern.
4. Further
Actions. Each of the parties hereto covenants and agrees, at
its own expense, to execute and deliver, at the request of the other party
hereto, such further instruments of transfer and assignment and to take such
other action as such other party may reasonably request to more effectively
consummate the assignments and assumptions contemplated by this Agreement to the
extent not inconsistent with the terms of the Purchase Agreement.
5. Governing
Law. This Agreement will be governed by and construed under
the laws of the State of Indiana, without regard to conflicts-of-laws principles
that would require the application of any other law.
6. Severability. If
any provision of this Agreement is held invalid or unenforceable by any court of
competent jurisdiction, the other provisions of this Agreement will remain in
full force and effect. Any provision of this Agreement held invalid
or unenforceable only in part or degree will remain in full force and effect to
the extent not held invalid or unenforceable.
7. Assignments, Successors and
No Third-Party Rights. No party may assign any of its rights
or delegate any of its obligations under this Agreement without the prior
written consent of the other party. Subject to the preceding
sentence, this Agreement will apply to, be binding in all respects upon and
inure to the benefit of the successors and permitted assigns of the
parties. Nothing expressed or referred to in this Agreement will be
construed to give any person other than the parties to this Agreement any legal
or equitable right, remedy or claim under or with respect to this Agreement or
any provision of this Agreement, except such rights as shall inure to a
successor or permitted assignee.
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8. Counterparts. This
Agreement may be executed in one or more counterparts, each of which will be
deemed to be an original copy of this Agreement and all of which, when taken
together, will be deemed to constitute one and the same
agreement. The exchange of copies of this Agreement and of signature
pages by facsimile transmission shall constitute effective execution and
delivery of this Agreement as to the parties and may be used in lieu of the
original Agreement for all purposes. Signatures of the parties
transmitted by facsimile shall be deemed to be their original signatures for all
purposes.
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blank; signature page to follow.]
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IN WITNESS WHEREOF, the
parties have executed this Assignment and Assumption Agreement as of the date
first above written.
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ASSIGNOR:
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FARMERS
STATE BANK OF ALTO PASS,
ILL.
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By:
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Xxxxxx X. Xxxxxx
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Name:
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Xxxxxx
X. Xxxxxx
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Title:
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Chairman
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ASSIGNEE:
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GERMAN
AMERICAN BANCORP
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By:
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Xxxx X. Xxxxxxxxx
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Name:
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Xxxx
X. Xxxxxxxxx
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Title:
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Chairman
and
CEO
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[Signature
Page to Assignment and Assumption Agreement]
