EXHIBIT 10.4
PURCHASE AND ASSUMPTION AGREEMENT
BY AND BETWEEN
PROVIDENT BANK OF MARYLAND
("SELLER")
AND
GATEWAY BANK & TRUST CO.
("PURCHASER")
PURCHASE AND ASSUMPTION AGREEMENT
---------------------------------
ARTICLE I - TRANSFER OF ASSETS AND LIABILITIES
Section 1.1. Transferred Assets................................. 1
Section 1.2. Purchase Price..................................... 2
Section 1.3. Deposit Liabilities................................ 3
Section 1.4. Loans Transferred.................................. 6
Section 1.5. Safe Deposit Business.............................. 7
Section 1.6. Employee Matters................................... 8
Section 1.7. Records and Data Processing........................ 9
Section 1.8. Security........................................... 9
Section 1.9. Taxes and Fees; Proration of Certain Expenses..... 9
Section 1.10. Real Property .....................................10
ARTICLE II - CLOSING AND EFFECTIVE TIME
Section 2.1. Effective Time.....................................13
Section 2.2. Closing............................................13
Section 2.3. Closing Payment....................................15
ARTICLE III - INDEMNIFICATION
Section 3.1. Seller's Indemnification of Purchaser..............17
Section 3.2. Purchaser's Indemnification of Seller..............17
Section 3.3. Claims for Indemnity...............................17
Section 3.4. Limitations on Indemnification.....................18
ARTICLE IV - REPRESENTATIONS AND WARRANTIES OF SELLER
Section 4.1. Corporate Organization.............................19
Section 4.2. No Violation.......................................19
Section 4.3. Corporate Authority................................19
Section 4.4. Enforceable Agreement..............................19
Section 4.5. No Brokers ........................................19
Section 4.6. Personal Property..................................20
Section 4.7. Real Property......................................20
Section 4.8. Condition of Property..............................20
Section 4.9. Loans..............................................21
Section 4.10 Compliance with Certain Laws.......................21
Section 4.11. Community Reinvestment Act Representation..........21
Section 4.12. Leases.............................................21
Section 4.13. Limitation of Representations and Warranties.......21
Section 4.14 Litigation.........................................22
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ARTICLE V - REPRESENTATIONS AND WARRANTIES OF PURCHASER
Section 5.1. Corporate Organization.............................22
Section 5.2. No Violation.......................................22
Section 5.3. Corporate Authority................................22
Section 5.4. Enforceable Agreement..............................22
Section 5.5. Brokers, Finders and Advisors......................23
Section 5.6 Regulatory Capital and Condition...................23
Section 5.7 Government Proceedings.............................23
Section 5.8 Community Reinvestment Act.........................23
Section 5.9 Litigation.........................................23
ARTICLE VI - OBLIGATIONS OF PARTIES PRIOR TO AND AFTER EFFECTIVE TIME
Section 6.1. Full Access........................................23
Section 6.2 Delivery of Magnetic Media Records.................24
Section 6.3. Application for Approval to Effect Purchase of
Assets and Assumption of Liabilities...............24
Section 6.4. Conduct of Business; Maintenance of Properties.....24
Section 6.5. No Solicitation by Seller..........................25
Section 6.6. Further Actions....................................26
Section 6.7. Fees and Expenses..................................26
Section 6.8. Breaches with Third Parties........................26
Section 6.9. Insurance..........................................26
Section 6.10. Public Announcements...............................26
Section 6.11. Tax Reporting......................................27
ARTICLE VII - CONDITIONS TO PURCHASER'S OBLIGATIONS
Section 7.1. Representations and Warranties True................27
Section 7.2. Obligations Performed..............................27
Section 7.3. No Adverse Litigation..............................27
Section 7.4. Regulatory Approval................................27
ARTICLE VIII - CONDITIONS TO SELLER'S OBLIGATIONS
Section 8.1. Representations and Warranties True................28
Section 8.2. Obligations Performed..............................28
Section 8.3. No Adverse Litigation..............................28
Section 8.4. Regulatory Approval................................28
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ARTICLE IX - TERMINATION
Section 9.1. Methods of Termination.............................28
Section 9.2. Procedure Upon Termination.........................29
Section 9.3. Payment of Expenses................................30
ARTICLE X - MISCELLANEOUS PROVISIONS
Section 10.1. Amendment and Modification.........................30
Section 10.2. Waiver or Extension................................30
Section 10.3. Assignment.........................................30
Section 10.4. Confidentiality....................................30
Section 10.5. Addresses for Notices, Etc.........................31
Section 10.6. Counterparts.......................................31
Section 10.7. Headings...........................................31
Section 10.8. Governing Law......................................31
Section 10.9. Sole Agreement.....................................32
Section 10.10. Severability.......................................32
Section 10.11. Parties in Interest................................32
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PURCHASE AND ASSUMPTION AGREEMENT
---------------------------------
THIS PURCHASE AND ASSUMPTION AGREEMENT (this "Agreement") is entered
into as of May 13, 2004 among Provident Bank of Maryland, a Maryland chartered
bank having its principal office at Baltimore, Maryland ("Seller"), and Gateway
Bank & Trust Co., a North Carolina chartered bank having its principal offices
in Elizabeth City, North Carolina ("Purchaser"):
W I T N E S S E T H:
-------------------
WHEREAS, Seller wishes to divest, upon the terms and conditions set
forth herein, certain assets and certain deposit and other liabilities of its
offices at the locations set forth in Schedule 1 (individually the "Xxxxxxxxx
City Center," the "Emporia Center," and the "Suffolk Center," and collectively
the "Banking Centers"); and
WHEREAS, Purchaser wishes to buy such assets and assume such
liabilities upon the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and mutual agreements
hereinafter set forth, Seller and Purchaser agree as follows:
ARTICLE I
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TRANSFER OF ASSETS AND LIABILITIES
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Section 1.1. Transferred Assets.
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(a) As of the Effective Time (as defined in Section 2.1) and upon
the terms and conditions set forth herein, Seller will sell,
assign, transfer, convey and deliver to Purchaser, and
Purchaser will purchase from Seller, all of the transferable
rights, title and interest of Seller in the following assets
associated with the Banking Centers and identified in this
Agreement and the Exhibits hereto, and not otherwise excluded
from sale pursuant to the provisions of Subsection 1.1(b):
(1) subject to Section 1.10, all real estate and
improvements thereon owned by Seller at the Banking
Centers (the "Real Property"), together with all
rights and appurtenances pertaining thereto;
(2) except as provided in Section 1.1(b), the furniture,
fixtures, leasehold improvements, equipment and other
tangible personal property owned by Seller and
located at each Banking Center and used in conducting
Seller's business at the Banking Center (the
"Personal Property");
(3) all leases affecting the Banking Centers, and all
equipment leases for equipment located at the Banking
Centers (the "Equipment Leases"); and all assignable
operating contracts of the Banking Centers excluding
any
master contracts (the "Assignable Contracts") all of
which Equipment Leases and Assignable Contracts are
listed on Exhibit 1.1(a)(3);
(4) all safe deposit contracts and leases for the safe
deposit boxes located at the Banking Centers as of
the Effective Time (the "Safe Deposit Contracts");
(5) all Loans (as defined in Section 1.4(a)) transferred
pursuant to Section 1.4;
(6) all coins and currency located at the Banking Centers
as of the Effective Time (the "Coins and Currency");
(7) all merchant services accounts associated with
Deposit Liabilities (as defined in Section 1.3(a))
located at the Banking Centers;
(8) all overdrafts associated with the Deposit
Liabilities assumed by Purchaser; and
(9) Seller's rights in and to the use of the current
telephone numbers of the Banking Centers.
(b) All assets, properties and rights of Seller not expressly
included in Section 1.1(a) are excluded from the transactions
contemplated by this Agreement, including, without limitation,
the following items (the "Excluded Assets"):
(1) the assets listed on Exhibit 1.1(b) hereto;
(2) Seller's rights in and to the name "Provident Bank of
Maryland" and any derivation thereof and any of
Seller's corporate logos, trademarks, trade names,
signs, paper stock, forms and other supplies
containing any such logos, trademarks or trade names,
and trade names and logos of third parties with whom
Seller has contracted to provide services to its
customers; and
(3) all loans attributed to the Banking Centers as of the
close of business on the Closing Date except for the
Loans.
(c) Seller shall coordinate with Purchaser to remove the Excluded
Assets from the Banking Centers on or prior to the Effective
Time. Seller shall remove the Excluded Assets at its own cost
and, apart from making any reasonable repairs necessitated by
removing the Excluded Assets, Seller shall be under no
obligation to restore the Banking Centers' premises to their
original condition, which shall be the responsibility of
Purchaser.
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Section 1.2. Purchase Price.
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(a) As consideration for the purchase of the Banking Centers,
Purchaser shall pay Seller a purchase price (the "Purchase
Price") equal to the sum of the following:
(1) With respect to the Real Property, $362,500 for the
Xxxxxxxxx City Center, $849,000 for the Emporia
Center, and $669,771 for the Suffolk Center (the
"Property Value").
(2) A premium for the Deposit Liabilities and franchise
value related to the Banking Centers equal to 4.5% of
the Deposit Liabilities at the Xxxxxxxxx Center and
Emporia Centers and 7.5% at the Suffolk Center;
(3) The Net Book Value, including accrued but unpaid
interest and fees, for the Loans as set forth in
Section 1.4;
(4) The Net Book Value (as defined in Section 1.2(d)) of
the Personal Property; and
(5) The face amount of the Coins and Currency.
(b) In addition, Purchaser shall assume, as of the Effective Time,
all of the duties, obligations and liabilities of Seller
arising on or after the Effective Time relating to the Real
Property, the Equipment Leases, the Assignable Contracts, the
Safe Deposit Contracts, and the Deposit Liabilities (including
all accrued interest relating thereto); provided, that any
cash items paid by Seller and not cleared prior to the
Effective Time shall be the responsibility of Seller, subject
to the terms of Section 1.3.
(c) For purposes of this Agreement, "Net Book Value" means the
value determined from the Post-Closing Balance Sheet;
provided, however, that such value shall not include the loan
loss reserve attributable to any Loan (as defined in Section
1.4 ) or any general reserve.
Section 1.3. Deposit Liabilities.
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(a) "Deposit Liabilities" shall mean all of Seller's duties,
obligations and liabilities relating to the deposit accounts
(except as set forth in Section 1.3(b)) located at the Banking
Centers as of the Effective Time (including accrued but unpaid
or uncredited interest thereon). A list of the Deposit
Liabilities as they existed on April 30, 2004 is attached
hereto as Exhibit 1.3(a).
(b) Except for those liabilities and obligations specifically
assumed by Purchaser under Section 1.2(b), Purchaser is not
assuming any other liabilities or obligations of Seller or
otherwise. Subject to the limitations on indemnification set
forth in Section 3.4, liabilities not assumed include, but are
not limited to, the following:
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(1) Seller's official checks, cashier checks, letters of
credit, money orders, interest checks and expense
checks issued prior to closing, consignments of U.S.
Government "E" and "EE" bonds and any and all
traveler's checks.
(2) Liabilities or obligations of Seller with respect to
any litigation, suits, claims, demands or
governmental proceedings arising, commenced or made
known to Seller prior to Closing or arising from
events occurring prior to Closing.
(3) Deposit accounts associated with lines of credit
where the line of credit is excluded in accordance
with Section 1.4 (b).
(4) Deposit accounts associated with qualified retirement
plans where Seller is the trustee of such plan or the
sponsor of a prototype plan used by such plan.
(5) Deposit accounts associated with Seller's national or
regional account relationships, if any.
(6) Self-directed individual retirement accounts, if any,
it being understood that all other types of XXX
Deposit Liabilities are intended to be transferred.
(c) Seller does not represent or warrant that any deposit
customers whose accounts are assumed by Purchaser will become
or continue to be customers of Purchaser after the Effective
Time.
(d) Purchaser agrees to pay in accordance with law and customary
banking practices all properly drawn and presented checks,
drafts and withdrawal orders presented to Purchaser by mail,
over the counter or through the check clearing system of the
banking industry, by depositors of the accounts assumed,
whether drawn on the checks, withdrawal or draft forms
provided by Seller or by Purchaser, and in all other respects
to discharge, in the usual course of the banking business, the
duties and obligations of Seller with respect to the balances
due and owing to the depositors whose accounts are assumed by
Purchaser.
(e) If, after the Effective Time, any depositor, instead of
accepting the obligation of Purchaser to pay the Deposit
Liabilities assumed, shall demand payment from Seller for all
or any part of any such assumed Deposit Liabilities, Seller
shall not be liable or responsible for making any such
payment; provided, that if Seller shall pay the same,
Purchaser agrees to reimburse Seller for any payments, and
Seller shall not be deemed to have made any representations or
warranties to Purchaser with respect to any checks, drafts or
withdrawal orders processed after the Effective Time drawn on
such Deposit Liabilities, and any such representations or
warranties implied by law are hereby expressly disclaimed.
Seller and Purchaser shall make arrangements to provide for
the daily settlement
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with immediately available funds by Purchaser of checks,
drafts, withdrawal orders, returns and other items presented
to and paid by Seller within 30 calendar days after the
Effective Time and drawn on or chargeable to accounts that
have been assumed by Purchaser; provided, however, that Seller
shall be held harmless and indemnified by Purchaser for acting
in accordance with such arrangements.
(f) Purchaser agrees, at its cost and expense, (1) to assign new
account numbers to depositors of assumed accounts, (2) to
notify such depositors, on or before the Effective Time, in a
form and on a date mutually acceptable to Seller and
Purchaser, of Purchaser's assumption of Deposit Liabilities
and that checks or drafts written after sixty (60) calendar
days after the Closing Date on Seller's check or draft forms
will not be honored, and (3) within five (5) business days
after the Closing Date to furnish such depositors with checks
on the forms of Purchaser and with instructions to utilize
Purchaser's checks and to destroy unused check, draft and
withdrawal order forms of Seller. (If Purchaser so elects,
Purchaser may offer to buy from such depositors their unused
Seller check, draft and withdrawal order forms.) In addition,
Seller will notify its affected customers by letter of the
pending assignment of the Deposit Liabilities to Purchaser,
which notice shall be at Seller's cost and expense and shall
be in a form and mailed at a time mutually agreeable to Seller
and Purchaser.
(g) Purchaser agrees to pay promptly to Seller an amount
equivalent to the amount of any checks, drafts or withdrawal
orders credited to an assumed account as of the Effective Time
that are properly returned to Seller after the Effective Time.
(h) As of the Effective Time, Purchaser will assume and discharge
Seller's duties and obligations in accordance with the terms
and conditions and laws, rules and regulations that apply to
the certificates, accounts and other Deposit Liabilities
assumed under this Agreement.
(i) As of the Effective Time, Purchaser will maintain and
safeguard in accordance with applicable law and sound banking
practices all account documents, deposit contracts, signature
cards, deposit slips, canceled items and other records related
to the Deposit Liabilities assumed under this Agreement,
subject to Seller's right of access to such records as
provided in this Agreement.
(j) Seller will render a final statement to each depositor of an
account assumed under this Agreement as to transactions
occurring through the Effective Time; provided, however, that
Seller shall not be obligated to render a final statement on
any account not ordinarily receiving periodic statements in
the ordinary course of Seller's business. Seller will be
entitled to impose normal fees and service charges on a
per-item basis at Closing, but Seller will not impose periodic
fees or blanket charges in connection with such final
statements.
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(k) Seller will timely provide to Purchaser 1099 data for
Purchaser to comply with all laws, rules and regulations
regarding 2004 tax reporting of transactions of such accounts
through the Effective Time.
(l) As of the Effective Time, Purchaser, at its expense, will
notify all Automated Clearing House ("ACH") originators of the
transfers and assumptions made pursuant to the Agreement;
provided, however, that Seller may, at its option, notify all
such originators itself (on behalf of Purchaser) also at the
expense of Purchaser. For a period of 60 calendar days
beginning on the Effective Time, Seller will honor all ACH
items related to accounts assumed under this Agreement which
are routed or presented to Seller. Seller will make no charge
to Purchaser for honoring such items, and will electronically
transmit such ACH data to Purchaser. If Purchaser cannot
receive an electronic transmission, Seller will make available
to Purchaser at Seller's operations center receiving items
from the Automated Clearing House tapes containing such ACH
data. Items routed or presented after the 60-day period shall
be returned to the presenting party. Seller and Purchaser
shall make arrangements to provide for the daily settlement
with immediately available funds by Purchaser of any ACH items
honored by Seller, and Seller shall be held harmless and
indemnified by Purchaser for acting in accordance with this
arrangement to accept ACH items.
(m) As of the Effective Time, Purchaser agrees to use its best
efforts to collect from Purchaser's customers amounts equal to
any Visa or MasterCard charge backs under the MasterCard and
Visa Merchant Agreements between Seller and its customer, or
amounts equal to any deposit items returned to Seller after
the Effective Time which were honored by Seller prior to the
Effective Time, and remit such amounts so collected to Seller.
Purchaser agrees to immediately freeze and remit to Seller any
funds, up to the amount of the charged back or returned item
that had been previously credited by Seller, if such funds are
available at the time of notification by Seller to Purchaser
of the charged back or returned item and such charge back is
permitted. Notwithstanding the foregoing, Purchaser shall have
no duty to remit funds for any item or charge that has been
improperly returned or charged to Seller. Solely for the
purposes of this Section 1.3(m), all references to Seller
shall be deemed to include Seller and its assignees.
Section 1.4. Loans Transferred.
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(a) Seller will transfer to Purchaser as of the Effective Time,
subject to the terms and conditions of this Agreement, all of
Seller's right, title and interest in (including collateral
relating thereto) loans maintained, serviced and listed in
Seller's records as loans of the Banking Centers that are
secured by Deposit Liabilities transferred to Purchaser
pursuant to this Agreement (collectively, the "Loans"). Such
Loans (as well as any security interest related thereto) shall
be transferred by means of a blanket (collective) assignment
and not individually (except as may be otherwise required by
law). A list of the Loans as they existed on May 8, 2004 is
attached hereto as Exhibit 1.4(a).
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(b) In connection with the transfer of any loans requiring notice
to the borrower, Purchaser shall comply with all notice and
reporting requirements of the loan documents or of any law or
regulation.
(c) All Loans transferred to Purchaser shall be valued at their
Net Book Value, such value to include accrued interest.
(d) All Loans will be transferred without recourse to Seller and
without any warranties or representations as to their
collectibility or the creditworthiness of any of the obligors
of such Loans.
(e) For a period of 60 calendar days after the Effective Time,
Seller will forward to Purchaser loan payments received by
Seller. Purchaser shall reimburse Seller upon demand for
checks returned on payments forwarded to Purchaser; however,
to the extent possible, Seller will deduct the amount of such
returned checks from any amounts owed by Seller to Purchaser.
(f) As of the Effective Time, Seller shall transfer and assign all
files, documents and records related to the Loans (the
"Records") to Purchaser, and Purchaser will be responsible for
maintaining and safeguarding all the Records in accordance
with applicable law and sound banking practices.
(g) If the balance due on any Loan purchased pursuant to this
Section 1.4 has been reduced by Seller as a result of a
payment by check received prior to the Effective Time, which
item is returned after the Effective Time, the asset value
represented by the Loan transferred shall be correspondingly
increased and an amount in cash equal to such increase shall
be paid by Purchaser to Seller promptly upon demand.
(h) Seller shall grant to Purchaser as of the Effective Time a
limited power of attorney, in substantially the form attached
hereto as Exhibit 1.4(h) (the "Power of Attorney").
Section 1.5. Safe Deposit Business.
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(a) As of the Effective Time, Purchaser will assume and discharge
Seller's obligations with respect to the safe deposit box
business at the Banking Centers arising on or after the
Effective Time in accordance with the terms and conditions of
contracts or rental agreements related to such business, and
Purchaser will maintain all facilities necessary for the use
of such safe deposit boxes by persons entitled to use them;
provided, that nothing herein shall be deemed to prohibit
Purchaser, after the Effective Time, from discontinuing the
safe deposit box services or facilities at the Banking Centers
(all in accordance with applicable law and any contractual
obligations regarding the same).
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(b) As of the Effective Time, Seller shall transfer and assign the
records related to such safe deposit box business to
Purchaser, and Purchaser shall maintain and safeguard all such
records and be responsible for granting access to and
protecting the contents of safe deposit boxes at the Banking
Centers.
(c) Safe deposit box rental payments (not including late payment
fees) collected by either Seller or Purchaser applying to
periods both before and after the Effective Time shall be
prorated as of the Effective Time.
Section 1.6. Employee Matters.
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(a) Purchaser shall offer employment to all employees (the
"Employees") employed by Seller at the Banking Centers as of
the Effective Time (other than employees whose respective
functions do not relate exclusively to operation of one or
more of the Banking Centers) in their then respective current
functional positions and locations with remuneration not less
than levels at the Effective Time and benefits generally
equivalent to benefits offered by Purchaser to similarly
situated employees of Purchaser. The names, positions, dates
of hire and current salary levels of the Employees are
detailed in Exhibit 1.6(a). Except for Purchaser's qualified
and nonqualified pension plans (if any), Employees who become
employees of Purchaser as of the Effective Time ("Transferred
Employees") shall receive full credit for their prior service
with Seller (and with other entities to the extent service
with any such entity is treated by Seller as service with it)
under Purchaser's benefit plans and policies, including its
vacation and sick leave policies, to the same extent as if the
service had been with Purchaser. As of the Effective Time, the
Transferred Employees and their dependents, if any, covered
under Seller's health insurance plan preceding the Effective
Time shall be covered under Purchaser's health insurance plan
without being subject to any pre-existing condition
limitations or exclusions. Transferred Employees shall not be
required to satisfy the deductible and employee payments
required by Purchaser's comprehensive medical and/or dental
plans for the calendar year of the Effective Time (i) to the
extent of amounts previously credited during such calendar
year under comparable plans maintained by Seller, or (ii) to
the extent the same is waived in its entirety by the
applicable insurer, as determined by the applicable insurer in
its sole discretion. With respect to Purchaser's qualified and
nonqualified pension plans, Transferred Employees shall
receive full credit for prior service with Seller (and with
other entities to the extent service with any such entity is
treated by Seller as service with it) for purposes of
determining their participation eligibility and vesting rights
to the same extent as if the service had been with Purchaser.
Benefits under Purchaser's pension plans for Transferred
Employees shall be determined solely with reference to service
with Purchaser.
(b) Seller makes no representations or warranties about whether
any of its employees will remain at the Banking Centers and
become and remain employed by Purchaser after the Effective
Time. Seller will use its commercially reasonable best efforts
to maintain the employees as employees of Seller at the
Banking
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Centers until the Effective Time. Purchaser shall have no
responsibilities or rights with respect to any employee of
Seller whose employment shall be terminated for any reason
prior to the Effective Time or who shall elect not to become
an employee of Purchaser. Seller agrees that, for a period of
12 months after the Effective Time, it will not solicit for
employment any Transferred Employee who remains employed by
Purchaser.
Any Transferred Employee whose employment is terminated without cause by
Purchaser within 12 months after the Effective Time shall be entitled to
receive, severance benefits of no less than the amount provided in Exhibit
1.6(c) to the extent the Transferred Employee qualifies for such severance
benefit (taking into account the Transferred Employee's service with Seller).
Purchaser agrees that, for a period of 12 months after the Effective Time, it
will not solicit for employment any employee of Seller (other than Transferred
Employees) who is employed at a location in a county in which any Banking Center
is located or in any contiguous county; provided, however, that such prohibition
shall not apply to solicitations which are directed to the general public.
Section 1.7. Records and Data Processing.
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(a) As of the Effective Time, Purchaser shall become responsible
for maintaining the files, documents and records referred to
in this Agreement. Purchaser will preserve and safekeep them
as required by applicable law and sound banking practice.
After the Effective Time, Purchaser will permit Seller and its
representatives, at reasonable times and upon reasonable
notice, to examine, inspect, copy and reproduce (at Seller's
expense) any such files, documents or records as Seller deems
reasonably necessary.
(b) As of the Effective Time, Seller will permit Purchaser and its
representatives, at reasonable times and upon reasonable
notice, to examine, inspect, copy and reproduce (at
Purchaser's expense) files, documents or records retained by
Seller regarding the assets and liabilities transferred under
this Agreement as Purchaser deems reasonably necessary.
(c) It is understood that certain of Seller's records may be
available only in the form of photocopies, film copies or
other non-original and non-paper media.
Section 1.8. Security.
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As of the Effective Time, Purchaser shall become solely responsible for
the security of and insurance on all persons and property located in or about
the Banking Centers.
Section 1.9. Taxes and Fees; Proration of Certain Expenses.
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Purchaser shall be responsible for the payment of all fees and taxes
related to this transaction, except that (i) Purchaser shall not be responsible
for, or have any liability with respect to, taxes on any income to Seller
arising out of the transactions herein, and (ii) with
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respect to any transfers of Real Property, Purchaser and Seller shall each pay
fifty percent (50%) of the real estate transfer and recordation taxes, fees and
costs incurred in connection therewith. Purchaser shall not be responsible for
any income tax liability of Seller arising from the business or operations of
the Banking Centers before the Effective Time, and Seller shall not be
responsible for any tax liabilities of Purchaser arising from the business or
operations of the Banking Centers after the Effective Time. Utility payments,
telephone charges, real property taxes, personal property taxes, rent, salaries,
deposit insurance premiums, other ordinary operating expenses of the Banking
Centers and other expenses related to the liabilities assumed or assets
purchased hereunder shall be prorated between the parties as of the Effective
Time. To the extent any such item has been prepaid by Seller for a period
extending beyond the Effective Time, there shall be a proportionate monetary
adjustment in favor of Seller.
Section 1.10. Real Property.
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(a) Title and Leasehold Matters.
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(i) Not more than 30 calendar days after the date of this
Agreement, Seller agrees to deliver to Purchaser
copies of all title and lease information in
possession of Seller, including but not limited to
title insurance policies, attorneys' opinions on
title, surveys, covenants, deeds, notes and
mortgages, leases and easements relating to the Real
Property. Such delivery shall constitute no warranty
by Seller as to the accuracy or completeness thereof
or that Purchaser is entitled to rely thereon.
(ii) Purchaser agrees to notify Seller in writing within
30 calendar days after the date of this Agreement of
any mortgages, pledges, material liens, encumbrances,
reservations, tenancies, encroachments, overlaps or
other title exceptions or zoning or similar land use
violations (excluding legal but nonconforming uses)
related to the Real Property to which Purchaser
reasonably objects (the "Title Defects"). Purchaser
agrees that Title Defects shall not include real
property taxes not yet due and payable, or easements,
restrictions, tenancies, and rights of way which do
not materially interfere with the use of the Real
Property as a banking center or defects which
Purchaser can obtain protection from through purchase
of title insurance at regular rates (or higher rates
if the excess over the regular rate is paid by
Seller). Seller shall make a good faith effort to
correct any such Title Defect to Purchaser's
reasonable satisfaction at least 10 calendar days
prior to Closing; provided, however, that Seller
shall not be obligated to bring any lawsuit or make
any payments of money (except to pay liens that
Seller does not dispute in good faith) to cure a
Title Defect. If Seller is unable or unwilling to
cure any such Title Defects to Purchaser's reasonable
satisfaction, Purchaser shall have the option to
(upon written notice to Seller) receive title in its
then existing condition (with a corresponding
Purchase Price adjustment that is agreeable to both
parties), or to accept the assets and assume the
liabilities of the Banking Center without the Real
Property on which the Banking Center is located (in
10
which event the Purchase Price shall be reduced by a
reasonable estimate of the moving expenses to be
incurred by Purchaser in relocating operations of the
Banking Center from the Real Property to another
business premises). Upon termination of this
Agreement with respect to the Real Property of a
Banking Center pursuant to this Section 1.10, neither
party shall have any further liability to the other
party under this Agreement with respect to such Real
Property and the Purchase Price shall be adjusted
accordingly.
(iii) Purchaser shall have the right to update title
matters at Closing for any changes which may have
arisen between the date of Purchaser's original title
search and the Closing Date. If such update indicates
that any Title Defects have been placed of record
since the date of Purchaser's original title search,
and Purchaser reasonably objects thereto, then Seller
may elect to delay the Closing with respect to the
affected Banking Center for up to 30 calendar days
while Seller makes a good faith effort to cure any
such Title Defect to Purchaser's reasonable
satisfaction; provided that Seller shall not be
obligated to bring any lawsuit or make any payments
of money (except to pay liens that Seller does not
dispute in good faith) to cure a Title Defect. If
Seller is unable or unwilling to cure any such Title
Defect within such 30 day period, Purchaser shall
have the option to (upon written notice to Seller)
receive title in the then existing condition (with a
corresponding Purchase Price adjustment reasonably
agreeable to both parties) or to accept the assets
and assume the liabilities of the Banking Center
without the Real Property on which the Banking Center
is located, in which event neither party shall have
any further liability to the other party under this
Agreement with respect to the Real Property of such
Banking Center and the Purchase Price shall be
adjusted accordingly.
(b) Environmental Matters.
---------------------
Purchaser shall have the right to conduct such investigation
of environmental matters, solely at Purchaser's expense, with
respect to the Real Property as it may reasonably require and
shall report the results of any such investigation, together
with its objections to any material violation of applicable
environmental law which impacts the Real Property or the use
thereof as a banking center, if any, to Seller no later than
60 calendar days after the date of this Agreement; provided,
that without the prior written consent of Seller, Purchaser
shall not conduct any ground water monitoring or install any
test well or undertake any other investigation which requires
a permit or license from, or the reporting of the
investigation or the results thereof to, a local or state
environmental regulatory authority or the United States
Environmental Protection Agency. Seller has no actual
knowledge of any material violation of applicable
environmental law which materially impacts the real property
or the use thereof as a Banking Center. If Purchaser objects
to any material violation of applicable environmental law
which materially impacts the Real Property or the use thereof
as a Banking Center
11
("Environmental Issue"), which is discovered by Purchaser's
investigation as provided for in subsection (d) below, Seller
and Purchaser shall address such Environmental Issue as set
forth in subsection (d) below.
(c) Facilities Inspection.
---------------------
Purchaser shall have the right, for and during the period
ending 60 calendar days following the date of execution of
this Agreement (the "Inspection Period"), to inspect, solely
at Purchaser's expense, the physical condition of the Real
Property, including, without limitation, compliance of the
Real Property with the provisions of the Americans with
Disabilities Act (collectively, "Inspection Issues"). These
inspections shall be conducted during regular business hours
by qualified inspectors or employees of Purchaser or its
affiliates following not less than three business days notice
to Seller. Prior to entry upon the property, Purchaser will
confirm to Seller the existence of general liability insurance
in coverage amounts reasonably acceptable to Seller. Any
physical disturbance to the Real Property shall be subject to
Seller's prior approval, which may be subject to such
reasonable repair and restoration conditions as Seller may
impose (including, without limitation, the obligation to
repair any disturbed area to its condition immediately prior
to that disturbance). Purchaser promptly shall provide Seller
with copies of any and all written reports in connection with
those inspections, at no cost to Seller, upon Seller's
request.
(d) Correction of Defects.
---------------------
If Purchaser discovers a defect in a Banking Center with
respect to Inspection Issues or Environmental Issues (a
"Defect") that would require the expenditure of over $25,000
to correct, as determined by Purchaser in its reasonable
discretion, Purchaser shall promptly give written notice
thereof to Seller describing the Defect in detail, and Seller
shall have the obligation to pay up to the sum of $75,000 to
cure such Defect at such Banking Center prior to the Effective
Time if reasonably possible or as soon thereafter as can be
reasonably accomplished. Purchaser shall pay the first $25,000
to cure such Defect. If the estimated cost to cure a Defect
exceeds $100,000, Seller shall have the option to pay the
additional cost to cure the Defect or in the alternative, to
lease the Banking Center which has a Defect to Purchaser for a
period of two years. Such lease shall be negotiated in good
faith by the parties at a market rate upon commercial property
and lease terms consistent with the area and Banking Center
involved. If the parties are unable to reach agreement on such
a lease at least 45 calendar days prior to the Closing Date,
each party shall select a commercial real estate professional
who shall provide a market rate for lease of the Banking
Center in question. The lease rate shall be set at the average
of the two market rates so determined. Other lease terms shall
be as negotiated by the parties or, failing agreement by the
parties, as mutually agreed by the commercial real estate
professionals. This method of resolving defects shall be
applied to each Banking Center.
12
ARTICLE II
----------
CLOSING AND EFFECTIVE TIME
--------------------------
Section 2.1. Effective Time.
----------- --------------
The purchase of assets and assumption of liabilities provided for in
this Agreement shall occur at a closing (the "Closing") to be held at a mutually
agreeable time and location within 15 calendar days following the date of all
approvals by regulatory agencies and after all statutory waiting periods have
expired, or at such other place, time or date on which the parties shall
mutually agree. The effective time (the "Effective Time") shall be 11:59 p.m.
local time, on the day on which the Closing occurs (the "Closing Date").
Section 2.2. Closing.
----------- -------
(a) All actions taken and documents delivered at the Closing shall
be deemed to have been taken and executed simultaneously, and
no action shall be deemed taken nor any document delivered
until all have been taken and delivered.
(b) At the Closing, subject to all the terms and conditions of
this Agreement, Seller shall deliver or make reasonably
available to Purchaser:
(1) A limited warranty deed transferring title to the
Real Property to Purchaser;
(2) A Xxxx of Sale, in substantially the form attached
hereto as Exhibit 2.2(b)(2) (the "Xxxx of Sale"),
transferring to Purchaser all of Seller's interest in
the Personal Property, the Loans and other assets;
(3) An Assignment and Assumption Agreement, in
substantially the form attached hereto as Exhibit
2.2(b)(3) (the "Assignment and Assumption
Agreement"), assigning Seller's interest in the
Equipment Leases, the Assignable Contracts, the Safe
Deposit Contracts, and the Deposit Liabilities;
(4) Consents from third persons that are required to
effect the assignments set forth in the Assignment
and Assumption Agreement, including, but not limited
to, the lessors under the Equipment Leases to the
extent required. With respect to any Equipment Lease
for which the required consent is not obtained from
the lessor prior to the Closing, in lieu of such
consent Seller may provide either (at Seller's sole
option), a special indemnity in form and content
reasonably satisfactory to Purchaser against any loss
to Purchaser resulting from the failure to obtain
such consent, or the substitution by Seller and
delivery hereunder to Purchaser of equipment
comparable to the equipment subject to such Equipment
Lease;
13
(5) Seller's keys to the safe deposit boxes and Seller's
records related to the safe deposit box business at
the Banking Centers;
(6) Seller's files and records related to the Loans;
(7) Seller's records related to the Deposit Liabilities
assumed by Purchaser;
(8) The Coins and Currency;
(9) Such of the other assets to be purchased as shall be
capable of physical delivery;
(10) A certificate of a proper officer of Seller, dated as
of the date of Closing, certifying to the fulfillment
of all conditions which are the obligation of Seller
and that all of the representations and warranties of
Seller set forth in this Agreement remain true and
correct in all material respects as of Effective
Time;
(11) A certified copy of a resolution of the Board of
Directors of Seller, or its Executive Committee,
approving the sale of the Banking Centers
contemplated hereby;
(12) Such certificates and other documents as Purchaser
and its counsel may reasonably require to evidence
the receipt by Seller of all necessary corporate and
regulatory authorizations and approvals for the
consummation of the transactions provided for in this
Agreement;
(13) An affidavit of Seller certifying that Seller is not
a "foreign person" as defined in the federal Foreign
Investment in Real Property Tax Act of 1980; and
(14) a Closing Statement, substantially in the form
attached hereto as Exhibit 2.2(b)(14) (the "Closing
Statement"); and
(15) The Power of Attorney substantially in the form
attached hereto as Exhibit 1.4(h).
It is understood that the items listed in subsections
(b)(5) and (8) shall be transferred after the Banking
Centers have closed for business on the Closing Date
and that the records listed in subsections (b)(6) and
(7) will be transferred as soon as practicable after
the Closing, but in no event more than five business
days after the Closing. For purposes of this
Agreement, the term "business day" shall mean any day
that Seller is open for business.
14
(c) At the Closing, subject to all the terms and conditions of
this Agreement, Purchaser shall deliver to Seller:
(1) The Assignment and Assumption Agreement;
(2) A certificate and receipt acknowledging the delivery
and receipt of possession of the property and records
referred to in this Agreement;
(3) A certificate of a proper officer of Purchaser, dated
as of the Date of Closing, certifying to the
fulfillment of all conditions which are the
obligation of Purchaser and that all of the
representations and warranties of Purchaser set forth
in this Agreement remain true and correct in all
material respects as of the Effective Time;
(4) A certified copy of a resolution of the Board of
Directors, or its Executive Committee, of Purchaser
approving the purchase of the Banking Centers
contemplated hereby;
(5) Such certificates and other documents as Seller and
its counsel may reasonably require to evidence the
receipt of Purchaser of all necessary corporate and
regulatory authorizations and approvals for the
consummation of the transactions provided for in this
Agreement; and
(6) the Closing Statement.
(d) All instruments, agreements and certificates described in this
Section 2.2 shall be in form and substance reasonably
satisfactory to the parties' respective legal counsel.
Section 2.3. Closing Payment.
----------- ---------------
(a) Amount. At the Closing, as applicable, either (i) Seller shall
pay to Purchaser an amount equal to the excess amount of the
amount of Deposit Liabilities assumed by Purchaser over the
Purchase Price, as adjusted for pro rata payments pursuant to
Section 1.9 or (ii) Purchaser shall pay to Seller an amount
equal to the excess amount of the Purchase Price over the
amount of Deposit Liabilities assumed by Purchaser, in
immediately available funds as adjusted for pro rata payments
pursuant to Section 1.9. The payment made at the Closing
pursuant to this section is referred to as the "Closing
Payment".
(b) Method of Payment. Because the parties acknowledge that
certain amounts to be paid may not be finally determinable
until after the Closing Date, the Closing Payment will be paid
as follows:
(i) Not less than 2 business days (as hereinafter
defined) prior to the Closing Date, Seller shall
deliver to Purchaser a proposed preliminary closing
15
statement in the form of Exhibit 2.2(b)(14) as of a
date not more than 5 business days prior to the
Closing Date. The parties shall agree upon the
preliminary closing statement prior to the Closing
Date. On the Closing Date, Seller will transfer to
Purchaser, or Purchaser will transfer to Seller, as
appropriate, by wire transfer of immediately
available funds, the estimated Closing Payment as
reflected on the preliminary closing statement (the
"Estimated Closing Payment").
(ii) Not later than 10 business days following the Closing
Date (the "Provisional Settlement Date"), Seller and
Purchaser shall determine the actual Closing Payment
and, based on such determination, Seller shall pay to
Purchaser, or Purchaser shall pay to Seller, as
appropriate, in immediately available funds, by wire
transfer effected in accordance with the written
instructions of the party entitled to receive
payment, an amount equal to the difference between
the Estimated Closing Payment and the actual Closing
Payment plus interest on such difference for the
number of days elapsed from but excluding the Closing
Date to and including the Provisional Settlement
Date, at the Federal Funds Rate (as hereinafter
defined) on the Closing Date.
(iii) Purchaser and Seller agree to recalculate and adjust
by appropriate payment in immediately available
funds, by wire transfer effected in accordance with
the written instructions of the party entitled to
receive such payment, 30 business days after the
Closing Date (the "Final Settlement Date"), the
Closing Payment if the parties shall determine that
the amount previously paid to Purchaser as the
Closing Payment should be adjusted. Any payment made
based on an adjustment of the Closing Payment by
either party to the other shall include interest on
the amount of the adjustment for the number of days
elapsed from but excluding the Closing Date to and
including the Final Settlement Date at the Federal
Funds Rate on the Closing Date.
(c) In the event that a dispute arises as to the appropriate
amounts to be paid to either party on the Final Settlement
Date, each party shall pay to the other on such Final
Settlement 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 Final Settlement 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 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 the full amount
of its fees and expenses against either party if it determines
that party negotiated the Closing Payment in
16
bad faith. The Closing Payment, as agreed upon by the parties
and determined under this subsection, shall be final and
binding upon the parties.
(d) The Federal Funds Rate shall mean the rate quoted for Federal
Funds in the Money Rates Column of the Wall Street Journal,
adjusted daily, for the period beginning with the first
calendar day following the Effective Time and ending with the
Final Settlement Date.
ARTICLE III
-----------
INDEMNIFICATION
---------------
Section 3.1. Seller's Indemnification of Purchaser.
----------- -------------------------------------
Subject to limitations in this ARTICLE III, Seller shall indemnify,
hold harmless and defend Purchaser from and against any costs, expenses,
liabilities, losses or damages, including without limitation reasonable
attorneys' fees and expenses (a "Loss") incurred by Purchaser caused by any
breach by Seller of any representation or warranty contained herein, and any
Loss arising out of any claims, actions, suits or proceedings commenced prior to
the Effective Time or arising out of events occurring prior to the Effective
Time relating to operations at the Banking Centers, except to the extent of
liabilities assumed or payable hereunder by Purchaser. Claims for indemnity must
be made within the time frame set forth in Section 3.3(a).
Section 3.2. Purchaser's Indemnification of Seller.
----------- -------------------------------------
Subject to limitations in this ARTICLE III, Purchaser shall indemnify,
hold harmless and defend Seller from and against any Loss incurred by Seller
caused by any breach by Purchaser of any representation or warranty contained
herein and any Loss arising out of any claims, actions, suits or proceedings
arising out of events occurring following the Effective Time relating to
operations at the Banking Centers. Claims for indemnity must be made within the
time frame set forth in Section 3.3(a).
Section 3.3. Claims for Indemnity.
----------- --------------------
(a) A claim for indemnity under Sections 3.1 or 3.2 of this
Agreement shall be made by the claiming party prior to the
expiration of 12 months after the Effective Time by the giving
of notice thereof to the other party. Such notice shall set
forth in reasonable detail the basis upon which such claim for
indemnity is made. In the event that any such claim is made
within such prescribed 12 month period, the indemnity relating
to such claim shall survive until such claim is resolved.
Claims not made within such 12 month period shall cease and no
indemnity shall be made therefor.
(b) A party seeking indemnification pursuant to this Section 3.3
(an "indemnified party") shall give prompt notice to the party
from whom such indemnification is sought (the "indemnifying
party") of the assertion of any claim, or the commencement of
any action or proceeding, in respect of which indemnity may
17
be sought hereunder; provided, however, in no event shall an
original claim for indemnification under this Agreement be
given later than the first anniversary of the Closing Date.
The indemnified party shall assist the indemnifying party in
the defense of any such action or proceeding. The indemnifying
party shall have the right to, and shall at the request of the
indemnified party, assume the defense of any such action or
proceeding at its own expense. In any such action or
proceeding, the indemnified party shall have the right to
retain its own counsel, but the fees and expenses of such
counsel shall be at its own expense unless:
(i) the indemnifying party and the indemnified
party shall have mutually agreed to the
retention of such counsel; or
(ii) the named parties to any such suit, action
or proceeding (including any impleaded
parties) include both the indemnifying party
and the indemnified party and, in the
reasonable judgment of the indemnified
party, representation of both parties by the
same counsel would be inappropriate due to
actual or potential differing interests
between them.
(c) An indemnifying party shall not be liable under this Section
3.3 for any settlement effected without its consent of any
claim, litigation or proceeding in respect of which indemnity
may be sought hereunder. The indemnifying party may settle any
claim without the consent of the indemnified party, but only
if the sole relief awarded is monetary damages that are paid
in full by the indemnifying party, and includes as an
unconditional term thereof the giving by the claimant or
plaintiff of a release of the indemnified party, in form and
substance satisfactory to the indemnified party and its
counsel, from all liability with respect to such claim, action
suit or proceeding. An indemnified party shall, subject to its
reasonable business needs, use reasonable efforts to minimize
the indemnification sought from the indemnifying party
hereunder. Notwithstanding the foregoing, no investigation by
an indemnified party at or prior to the Closing shall relieve
an indemnifying party of any liability hereunder, unless the
indemnified party seeks indemnity in respect of a
representation or warranty which it actually had reason to
believe to be incorrect as a result of its investigation prior
to the Closing and the indemnified party intentionally failed
to bring such belief to the attention of the indemnifying
party prior to the Closing.
(d) After the Closing, Section 3.3 shall provide the exclusive
remedy for any misrepresentation, breach of warranty, covenant
or other agreement or other claim arising out of this
Agreement or the transactions contemplated hereby.
Section 3.4. Limitations on Indemnification.
----------- ------------------------------
Notwithstanding anything to the contrary contained in this Article III,
no indemnification shall be required to be made by either party until the
aggregate amount of all claims for indemnity by a party exceeds $50,000. Once
such aggregate amount exceeds the $50,000
18
threshold, such party shall thereupon be entitled to indemnification for all
amounts in excess of such threshold. IN ADDITION, THE PARTIES SHALL HAVE NO
OBLIGATIONS UNDER THIS ARTICLE III FOR ANY CONSEQUENTIAL LIABILITY, DAMAGE OR
LOSS THE INDEMNIFIED PARTY MAY SUFFER AS THE RESULT OF ANY DEMAND, CLAIM OR
LAWSUIT.
ARTICLE IV
----------
REPRESENTATIONS AND WARRANTIES OF SELLER
----------------------------------------
Seller hereby represents and warrants to Purchaser as follows:
Section 4.1. Corporate Organization.
----------- ----------------------
Seller is a Maryland chartered trust company duly organized, validly
existing and in good standing under the laws of the State of Maryland. Seller
has the corporate power and authority to own its properties, to carry on its
business as currently conducted and to effect the transactions contemplated
herein.
Section 4.2. No Violation.
----------- ------------
The Banking Centers have been operated in all material respects in
accordance with applicable laws, rules and regulations. The execution and
delivery of this Agreement, and the consummation of the transactions
contemplated herein, will not cause the acceleration of the maturity of, any
material obligation or loan to which Seller is a party and does not constitute a
breach or violation of or constitute a default under (a) Seller's Charter or
Bylaws; (b) any material provision of any material agreement or any other
material restriction of any kind to which Seller is a party or by which Seller
is bound; or (c) any material statute, law, decree, regulation, judgment or
order of any governmental authority.
Section 4.3. Corporate Authority.
----------- -------------------
The execution and delivery of this Agreement, and the consummation of
the transactions contemplated herein, have been duly authorized by Seller, and
no further corporate authorization is necessary for Seller to consummate the
transactions contemplated hereunder.
Section 4.4. Enforceable Agreement.
----------- ---------------------
This Agreement has been duly authorized, executed and delivered by
Seller and is the legal, valid and binding agreement of Seller, enforceable in
accordance with its terms except enforceability may be limited under any
applicable law pertaining to bankruptcy, receivership, reorganization,
fraudulent transfer or insolvency or similar laws affecting creditors' rights
generally and to general principles of equity.
19
Section 4.5. Brokers, Finders and Advisors.
----------- -----------------------------
Seller will pay the costs related to any broker, finder, financial
advisor legal counsel, accountant or similar agent engaged by Seller in
connection with this Agreement and the transactions contemplated herein.
Section 4.6. Personal Property.
----------- -----------------
Seller owns, and will convey to Purchaser at the Closing, all of
Seller's right, title and interest to all of the Personal Property free and
clear of any claims, mortgages, liens, security interests, pledges or
encumbrances of any kind, except as may otherwise be set forth in this
Agreement.
Section 4.7. Real Property.
----------- -------------
Seller makes the following representations regarding the Real Property:
(a) Except as specifically set forth herein, Seller has no
knowledge of any condemnation proceedings pending against the
Real Property.
(b) Except as specifically set forth herein or disclosed to
Purchaser prior to the execution of this Agreement, Seller has
not entered into any agreement regarding the Real Property,
and the Real Property is not subject to any claim, demand,
suit, lien, proceeding or litigation of any kind, pending or
outstanding, or to the knowledge of Seller, threatened or
likely to be made or instituted, which would in any way be
binding upon Purchaser or its successors or assigns or
materially affect or limit Purchaser's or its successors' or
assigns' use and enjoyment of the Real Property or which would
materially limit or restrict Purchaser's right or ability to
enter into this Agreement and consummate the sale and purchase
contemplated hereby.
(c) Seller has or will have at Closing good and marketable fee
simple title to the Real Property and, at Closing, will own
the Real Property outright subject to no mortgage, pledge,
lien, security interest, lease, charge, encumbrance or
conditional sales or other title retention agreement except
for real property taxes not yet due and payable, and easements
and rights of way which do not materially interfere with the
use of the Real Property as a banking center. Purchaser's sole
remedy for a breach of the representations and warranties in
this Section 4.7 shall be to elect not to purchase the Real
Property on which a Banking Center is located as provided in
Section 1.10.
Section 4.8. Condition of Property.
----------- ---------------------
Except as may be otherwise specifically set forth in this Agreement,
the Real Property and Personal Property to be purchased by Purchaser hereunder
are sold AS IS, WHERE IS, with no warranties or representations whatsoever,
except as may be expressly represented or warranted in this Agreement.
20
Section 4.9. Loans.
----------- -----
(i) Seller has good title to each Loan being purchased by Purchaser and
each is a valid loan in conformity with applicable laws and regulation; (ii) the
documentation relating to each Loan accurately reflects the payment history, the
outstanding balance of the Loan, and all receipts pertaining to the Loan from
the obligor(s) thereof and all credits to which such obligor(s) are entitled,
(iii) to the best of Seller's knowledge, all signatures on and executions of any
documents by Seller in connection with each Loan are genuine; (iv) with respect
to each Loan that is secured, Seller has a valid and enforceable lien on the
collateral described in the documents relating to such Loan, and such lien has
the priority described in Seller's loan files relating to such Loans (except as
enforceability may be limited by bankruptcy laws and other similar laws relating
to creditors' rights and principles of equity), (v) no taxes or other liability
of Seller shall accrue against or be collected from Purchaser out of any Loan by
reason of the purchase thereof by Purchaser, (vi) Seller has paid or caused to
be paid any and all license, franchise, intangible, stamp or other tax or fee
due and owing to any state where a Loan originated, or any political subdivision
thereof, arising from or growing out of the acquisition, collection or holding
of any Loan, and (vii) neither Seller nor, to the best of Seller's knowledge,
any of its agents, officers, employees or representatives in any manner has been
guilty of any civil or criminal fraud with respect to the creation of any Loan
or with respect to the transfer, assignment and sale of the same to Purchaser
hereunder.
Section 4.10. Compliance with Certain Laws.
------------ ----------------------------
To the best of Seller's knowledge, the Deposits and Loans were opened,
extended or made, and have been maintained, in accordance with all applicable
federal and state laws, regulations, rules and orders.
Section 4.11. Community Reinvestment Act Representation.
------------ -----------------------------------------
The most recent Community Reinvestment Act rating received by Seller
was not less than "satisfactory."
Section 4.12. Leases.
------------ ------
The Equipment Leases are in full force and effect and are fully
transferable and assignable to Purchaser, except to the extent that consent of
the lessor or another party is required by the terms of the respective lease
documents. Purchaser's sole remedy for failure to obtain any such required
consent with respect to the Equipment Leases shall be as provided in Section
2.2(b)(4).
Section 4.13. Limitation of Representations and Warranties.
------------ --------------------------------------------
Except as may be expressly represented or warranted in this Agreement
by Seller, Seller makes no representations or warranties whatsoever with regard
to any asset being transferred to Purchaser or any liability or obligation being
assumed by Purchaser or as to any other matter or thing.
21
Section 4.14. Litigation.
------------ ----------
There are no actions, suits or proceedings pending, or to Seller's
knowledge, threatened, against Seller related to the Assets or the transactions
contemplated by this Agreement.
ARTICLE V
---------
REPRESENTATIONS AND WARRANTIES OF PURCHASER
-------------------------------------------
Purchaser hereby represents and warrants to Seller as follows:
Section 5.1. Corporate Organization.
----------- ----------------------
Purchaser is a North Carolina chartered bank duly organized, validly
existing and in good standing under the laws of the state of North Carolina.
Purchaser has the corporate power and authority to own the properties being
acquired, to assume the liabilities being transferred and to effect the
transactions contemplated herein.
Section 5.2. No Violation.
----------- ------------
The execution and delivery of this Agreement, and the consummation of
the transactions contemplated herein, will not cause the acceleration of the
maturity of, any material obligation or loan to which Seller is a Party and does
not constitute a breach or violation of or constitute a default under (a) the
Charter or Bylaws of Purchaser; any material provision of any material agreement
or any other material restriction of any kind to which Purchaser is a party or
by which Purchaser is bound; (b) any material statute, law, decree, regulation
or order of any governmental authority.
Section 5.3. Corporate Authority.
----------- -------------------
The execution and delivery of this Agreement, and the consummation of
the transactions contemplated herein, prior to the Effective Date will have been
duly authorized by Purchaser, and no further corporate authorization on the part
of Purchaser is necessary to consummate the transactions contemplated hereunder.
Section 5.4. Enforceable Agreement.
----------- ---------------------
This Agreement has been duly authorized, executed and delivered by
Purchaser and is the legal, valid and binding agreement of Purchaser enforceable
in accordance with its terms except as enforceability may be limited under any
applicable law pertaining to bankruptcy, receivership, reorganization,
fraudulent transfer or insolvency or similar laws affecting creditors' rights
generally and to general principles of equity.
22
Section 5.5. No Brokers.
----------- ----------
Purchaser will pay the costs related to any broker, finder, financial
advisor legal counsel, accountant or similar agent engaged by Purchaser in
connection with this Agreement and the transactions contemplated herein.
Section 5.6. Regulatory Capital and Condition.
----------- --------------------------------
Purchaser is in compliance with all applicable capital standards as of
the date hereof and has no reason to believe that it will be unable to obtain
the required regulatory approvals for the transactions contemplated herein
solely as a result of its current level of regulatory capital. Purchaser's
ability to consummate the transactions contemplated by this Agreement is not
contingent on raising any equity capital.
Section 5.7. Government Proceedings.
----------- ----------------------
Purchaser is not subject to, and has not received any notice or advice
that it may be subject to, any order, agreement, memorandum of understanding or
other regulatory enforcement action or proceeding with or by any federal or
state agency charged with the supervision or regulation of banks or engaged in
the insurance of the deposits of banks or any other governmental agency having
supervisory or regulatory authority with respect to Purchaser that could affect
Purchaser's ability to obtain the required regulatory approvals or to satisfy
any of the other conditions required to be satisfied in order to consummate the
transactions contemplated hereby.
Section 5.8. Community Reinvestment Act.
----------- --------------------------
The most recent Community Reinvestment Act rating received by Purchaser
was not less than "satisfactory."
Section 5.9. Litigation.
----------- ----------
There are no actions, suits or proceedings pending, or to Purchaser's
knowledge, threatened, against Purchaser related to the transactions
contemplated by this Agreement.
ARTICLE VI
----------
OBLIGATIONS OF PARTIES PRIOR TO AND AFTER EFFECTIVE TIME
--------------------------------------------------------
Section 6.1. Access to Information.
----------- ---------------------
Purchaser acknowledges that it has conducted satisfactory due diligence
with respect to the assets and liabilities to be acquired by Purchaser
hereunder. Notwithstanding the foregoing, Seller shall afford to the officers
and authorized representatives of Purchaser, upon prior notice and subject to
Seller's normal security requirements, access to the properties, books and
records pertaining to the Banking Centers in order to facilitate the
consummation of the transactions
23
herein contemplated, provided, that such access shall be at reasonable times and
shall not interfere with the normal business and operations of the Banking
Centers or the affairs of Seller relating to the Banking Centers. Nothing in
this Section 6.1 shall require Seller to breach any obligation of
confidentiality or to reveal any proprietary information, trade secrets or
marketing or strategic plans. It is understood that certain of Seller's records
may be available only in the form of photocopies, film copies or other
non-original and non-paper media.
Section 6.2. Delivery of Magnetic Media Records.
----------- ----------------------------------
Seller shall prepare or cause to be prepared at its expense and make
available to Purchaser at Seller's data processing center magnetic media records
in Seller's field format not later than 20 calendar days after the execution of
this Agreement, and further shall make available to Purchaser such records
updated as of the Closing Date, which records shall contain the information
related to the items described in Subsections 2.2(b)(6) and (b)(7). Such updated
records shall be made available at such time after Closing as agreed to by the
parties. Seller may, with the consent of Purchaser, provide such reports in
paper format instead of magnetic media format.
Section 6.3. Application for Approval to Effect Purchase of Assets and
----------- ---------------------------------------------------------
Assumption of Liabilities.
-------------------------
Within 30 calendar days following the execution of this Agreement,
Purchaser shall prepare and file applications required by law with the
appropriate regulatory authorities for approval to purchase and assume the
aforesaid assets and liabilities, to establish branches at the locations of the
Banking Centers (or relocations to the extent contemplated herein), and to
effect in all other respects the transactions contemplated herein. Purchaser
agrees to process such applications in a diligent manner and on a priority basis
and to provide Seller promptly with a copy of such applications as filed (except
for any confidential portions thereof) and all material notices, orders,
opinions, correspondence and other documents with respect thereto, and to use
its best efforts to obtain all necessary regulatory approvals. Purchaser knows
of no reason why such applications should not receive all such approvals.
Purchaser shall promptly notify Seller upon receipt by Purchaser of notification
that any application provided for hereunder has been denied. Seller shall
provide such assistance and information to Purchaser as shall be reasonably
necessary for Purchaser to comply with the requirements of the applicable
regulatory authorities.
Section 6.4. Conduct of Business; Maintenance of Properties.
----------- ----------------------------------------------
(a) From the date hereof until the Effective Time, Seller
covenants that it will:
(i) Carry on, or cause to be carried on, the business of
the Banking Centers substantially in the same manner
as on the date hereof, use all reasonable efforts to
preserve intact its current business organization,
and preserve its business relationships with
depositors, customers and others having business
relationships with it and whose accounts will be
retained at the Banking Centers; provided, that
Seller need not, in its sole discretion,
24
advertise or promote new or substantially new
customer services in the principal market areas of
the Banking Centers;
(ii) Cooperate with and assist Purchaser in assuring the
orderly transition of the business of the Banking
Centers to Purchaser from Seller; and
(iii) Maintain the Real Property and the Personal Property
in its current condition, ordinary wear and tear
excepted.
(b) Between the date hereof and the Effective Time, Seller shall
not, without the prior consent of Purchaser:
(i) Acquire or dispose of any fixed assets with respect
to the Banking Centers, other than pursuant to
commitments made on or before the date of this
Agreement and except for replacement of furniture,
furnishings and equipment and normal maintenance and
refurbishing in the ordinary course of business of
the Banking Centers, provided that this Section shall
not require the replacement of any such items by
Seller;
(ii) Increase or agree to increase the salary,
remuneration or compensation or other employment
benefits of persons employed at the Banking Centers
other than in accordance with Seller's customary
policies or bank-wide changes consistent with past
practices, or pay or agree to pay any uncommitted
bonus to any such employees other than regular
bonuses granted based on historical practice;
(iii) Change any pricing in deposit accounts at the Banking
Centers on other than a regional basis, except as may
be required in the ordinary course of business
consistent with past practices;
(iv) Materially increase the staffing levels at any
Banking Center or effect changes in branch personnel
employed as of the Effective Time other than in the
ordinary course of business consistent with past
practices; or
(v) Enter into any agreement to sell, grant or convey the
Real Property or any part thereof, including
easements or rights of way over the Real Property.
Section 6.5. No Solicitation by Seller.
----------- -------------------------
For a period of 12 months after the Effective Time, Seller will not
specifically target and solicit customers of the Banking Centers utilizing any
customer or mailing list which consists primarily of customers of the Banking
Centers; provided, that these restrictions shall not apply to general mass
mailings, telemarketing calls, statement stuffers and other similar
communications directed to current customers of Seller or Seller's affiliates,
or to the public or newspaper, radio or television advertisements of a general
nature, or otherwise prevent Seller from taking such actions as may be required
to comply with any applicable federal or state laws, rules or
25
regulations. In addition, these restrictions shall not apply to (a) the
solicitation of (i) commercial accounts normally established and maintained in
offices other than the Banking Centers or (ii) any credit or debit card customer
which has an agreement with Seller for merchant services which is not
transferred to Purchaser, or (b) the installation and operation by Seller of
automated teller machines at any location.
Section 6.6. Further Actions.
----------- ---------------
Each party hereto shall execute and deliver such instruments and take
such other actions as the other party may reasonably require in order to carry
out the intent of this Agreement.
Section 6.7. Fees and Expenses.
----------- -----------------
Except as otherwise provided herein, Purchaser shall be responsible for
the costs of all title examinations, title insurance fees, surveys, its own
attorneys' and accountants' fees and expenses and other expenses arising in
connection therewith. Seller shall be responsible for its own attorneys' and
accountants' fees and expenses related to this transaction.
Section 6.8. Breaches with Third Parties.
----------- ---------------------------
If the assignment of any material claim, contract, license, lease,
commitment, sales order or purchase order (or any material claim or right or any
benefit arising thereunder) without the consent of a third party would
constitute a breach thereof or materially affect the rights of Purchaser or
Seller thereunder, then such assignment is hereby made subject to such consent
or approval being obtained. The failure to obtain such consent shall not
constitute a breach of this Agreement by Seller.
Section 6.9. Insurance.
----------- ---------
As of the Effective Time, Seller will discontinue its insurance
coverage maintained in connection with the Banking Centers and the activities
conducted thereon, except for coverage relating to periods preceding the
Effective Time. Purchaser shall be responsible for all insurance protection for
the Banking Centers' premises and the activities conducted thereon immediately
following the Effective Time. Pending the Closing, risk of loss shall be the
responsibility of Seller.
Section 6.10. Public Announcements.
------------ --------------------
Seller and Purchaser agree that, from the date hereof, neither shall
make any public announcement or public comment, regarding this Agreement or the
transactions contemplated herein without first consulting with the other party
hereto and reaching an agreement upon the substance and timing of such
announcement or comment. Further, Seller and Purchaser acknowledge the
sensitivity of this transaction to the Employees and no announcements or
communications with the public or these Employees shall be made without the
prior approval of Seller.
26
Section 6.11. Tax Reporting.
------------ -------------
Seller shall provide Purchaser all 1099 data for Purchaser to comply
with all 2004 tax reporting obligations in connection with transferred assets
and liabilities on or before the Effective Time, and Purchaser shall comply with
all tax reporting obligations with respect to the transferred assets and
liabilities after the Effective Time.
ARTICLE VII
-----------
CONDITIONS TO PURCHASER'S OBLIGATIONS
-------------------------------------
The obligations of Purchaser to complete the transactions contemplated
in this Agreement are conditioned upon fulfillment, on or before the Closing, of
each of the following conditions:
Section 7.1. Representations and Warranties True.
----------- -----------------------------------
The representations and warranties made by Seller in this Agreement
shall be true in all material respects on and as of the Effective Time as though
such representations and warranties were made at and as of such time, except to
the extent otherwise provided herein or consented to by Purchaser.
Section 7.2. Obligations Performed.
----------- ---------------------
Seller shall (a) deliver or make available to Purchaser those items
required by Section 2.2, and (b) perform and comply in all material respects
with all obligations and agreements required by this Agreement to be performed
or complied with by it prior to or on the Effective Time.
Section 7.3. No Adverse Litigation.
----------- ---------------------
As of the Effective Time, no action, suit or proceeding shall be
pending or threatened against Seller which is reasonably likely to (a)
materially and adversely affect the business, properties and assets of the
Banking Centers, or (b) materially and adversely affect the transactions
contemplated herein.
Section 7.4. Regulatory Approval.
----------- -------------------
(a) Purchaser shall have received all necessary regulatory
approvals of the transactions provided in this Agreement, all
notice and waiting periods required by law to pass shall have
passed, no proceeding to enjoin, restrain, prohibit or
invalidate such transactions shall have been instituted or
threatened, and any conditions of any regulatory approval
shall have been met.
(b) Such approvals shall not have imposed any condition which is
materially disadvantageous or burdensome to Purchaser.
27
ARTICLE VIII
------------
CONDITIONS TO SELLER'S OBLIGATIONS
----------------------------------
The obligations of Seller to complete the transactions contemplated in
this Agreement are conditioned upon fulfillment, on or before the Closing, of
each of the following conditions:
Section 8.1. Representations and Warranties True.
----------- -----------------------------------
The representations and warranties made by Purchaser in this Agreement
shall be true in all material respects at and as of the Effective Time as though
such representations and warranties were made at and as of such time, except to
the extent otherwise provided herein or consented to by Seller.
Section 8.2. Obligations Performed.
----------- ---------------------
Purchaser shall (a) deliver to Seller those items required by Section
2.2, and (b) perform and comply in all material respects with all obligations
and agreements required by this Agreement to be performed or complied with by it
prior to or on the Effective Time.
Section 8.3. No Adverse Litigation.
----------- ---------------------
As of the Effective Time, no action, suit or proceeding shall be
pending or threatened against Purchaser or Seller which might materially and
adversely affect the transactions contemplated hereunder.
Section 8.4. Regulatory Approval.
----------- -------------------
(a) Purchaser shall have received from the appropriate regulatory
authorities approval of the transactions contemplated herein,
waiting periods required by law to pass shall have passed, no
proceeding to enjoin, restrain, prohibit or invalidate such
transactions shall have been instituted or threatened, and any
conditions of any regulatory approval shall have been met.
(b) Such approvals shall not have imposed any condition which is
materially disadvantageous or burdensome to Seller.
ARTICLE IX
----------
TERMINATION
-----------
Section 9.1. Methods of Termination.
----------- ----------------------
This Agreement may be terminated in any of the following ways:
(a) by either Purchaser or Seller, in writing five calendar days
in advance of such termination, if the Closing has not
occurred by December 31, 2004;
28
(b) at any time on or prior to the Effective Time by the mutual
consent in writing of Purchaser and Seller;
(c) by Purchaser in writing if the conditions set forth in Article
VII (with the exception of delivery of items required to be
delivered at Closing) of this Agreement shall not have been
met by Seller or waived in writing by Purchaser within 30
calendar days following the date of all approvals by
regulatory agencies and after all statutory waiting periods
have expired;
(d) by Seller in writing if the conditions set forth in Article
VIII of this Agreement shall not have been met by Purchaser or
waived in writing by Seller within 30 calendar days following
the date of all approvals by regulatory agencies and after all
statutory waiting periods have expired;
(e) any time prior to the Effective Time, by Purchaser or Seller
in writing if the other shall have been in breach of any
representation and warranty in any material respect (as if
such representation and warranty had been made on and as of
the date hereof and on the date of the notice of breach
referred to below), or in breach of any covenant, undertaking
or obligation contained herein, and such breach has not been
cured by the earlier of 30 calendar days after the giving of
notice to the breaching party of such breach or the Effective
Time; provided, however, that there shall be no cure period in
connection with any breach of Section 6.3, so long as such
breach by Purchaser was not caused by any action or inaction
of Seller, and Seller may terminate this Agreement immediately
if regulatory applications are not filed within 30 calendar
days after the date of this Agreement as provided in that
Section; or
(f) by Seller in writing at any time after any applicable
regulatory authority has denied approval of any application of
Purchaser for approval of the transactions contemplated
herein.
Section 9.2. Procedure Upon Termination.
----------- --------------------------
In the event of termination pursuant to Section 9.1, and except as
otherwise stated therein, written notice thereof shall be given to the other
party, and this Agreement shall terminate immediately upon receipt of such
notice unless an extension is consented to by the party having the right to
terminate.
If this Agreement is terminated as provided herein,
(a) each party will return all documents, work papers and other
materials of the other party, including photocopies or other
duplications thereof, relating to this transaction, whether
obtained before or after the execution hereof, to the party
furnishing the same; and
29
(b) all information received by either party hereto with respect
to the business of the other party (other than information
which is a matter of public knowledge or which has heretofore
been published in any publication for public distribution or
filed as public information with any governmental authority)
shall not at any time be used for any business purpose by such
party or disclosed by such party to third persons.
Section 9.3. Payment of Expenses.
----------- -------------------
Should the transactions contemplated herein not be consummated because
of a party's breach of this Agreement, in addition to such damages as may be
recoverable in law or equity, the other party shall be entitled to recover from
the breaching party, upon demand, itemization and documentation, its reasonable
outside legal, accounting, consulting and other out-of-pocket expenses.
ARTICLE X
---------
MISCELLANEOUS PROVISIONS
------------------------
Section 10.1. Amendment and Modification.
------------ --------------------------
The parties hereto, by mutual consent of their duly authorized
officers, may amend, modify and supplement this Agreement in such manner as may
be agreed upon by them in writing.
Section 10.2. Waiver or Extension.
------------ -------------------
Except with respect to required approvals of the applicable
governmental authorities, either party, by written instrument signed by a duly
authorized officer, may extend the time for the performance of any of the
obligations or other acts of the other party and may waive (a) any inaccuracies
in the representations and warranties contained herein or in any document
delivered pursuant hereto or (b) compliance with any of the undertakings,
obligations, covenants or other acts contained herein.
Section 10.3. Assignment.
------------ ----------
This Agreement and all of the provisions hereof shall be binding upon,
and shall inure to the benefit of, the parties hereto and their permitted
assigns, but neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by either of the parties hereto without
the prior written consent of the other.
Section 10.4. Confidentiality.
------------ ---------------
Seller and Purchaser agree that the Confidentiality Agreement dated
March 31, 2004 between Seller and Purchaser (the "Confidentiality Agreement")
shall survive the execution hereof and the consummation of the transactions
contemplated herein.
30
Section 10.5. Addresses for Notices, Etc.
------------ ---------------------------
All notices, requests, demands, consents and other communications
provided for hereunder and under the related documents shall be in writing and
transmitted by nationally recognized air courier (charges prepaid), telecopied
or personally delivered (with receipt thereof acknowledged) to the applicable
party at the address indicated below:
If to Seller: Provident Legal Department
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Fax Number: 000-000-0000
Attn: General Counsel
With a copy to: Xxxx X. Xxxxxxx
Xxxxxxx Xxxxxx Xxxxxxxx & Xxxxxxx LLP
0000 Xxxxxxxxx Xxxxxx, XX
Xxxxxxxxxx, XX 00000
Fax Number: 000-000-0000
If to Purchaser: Gateway Bank & Trust Co.
Xxxx Xxxxxx Xxx 0000
Xxxxxxxxx Xxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: D. Xxx Xxxxx, CEO
Facsimile: (000) 000-0000
With a copy to: Xxxxxx Xxxxxx, P.A.
X.X. Xxx Xxxxxx 00000
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
or, as to each party, at such other address as shall be designated by such party
by notice to the other party complying with the terms of this Section.
Section 10.6. Counterparts.
------------ ------------
This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Section 10.7. Headings.
------------ --------
The headings of the Sections and Articles of this Agreement are
inserted for convenience only and shall not constitute a part thereof.
31
Section 10.8. Governing Law.
------------ -------------
This Agreement shall be governed by, and construed in accordance with,
the laws of the State of Maryland.
Section 10.9. Sole Agreement.
------------ --------------
Except for the Confidentiality Agreement, this Agreement and the
exhibits and attachments hereto represent the sole agreement between the parties
respecting the transactions contemplated hereby, and all prior or
contemporaneous written or oral proposals, agreements in principle,
representations, warranties and understandings between the parties with respect
to such matters are superseded hereby and merged herein.
Section 10.10. Severability.
------------- ------------
If any provision of this Agreement is invalid or unenforceable, the
balance of this Agreement shall remain in effect.
Section 10.11. Parties In Interest.
------------- -------------------
Nothing in this Agreement, express or implied, including, without
limitation the provisions of Section 1.6(a), is intended or shall be construed
to confer upon or give to any person (other than the parties hereto, their
successors and permitted assigns) any rights or remedies under or by reason of
this Agreement, or any term, provision, condition, undertaking, warranty,
representation, indemnity, covenant or agreement contained herein.
32
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their duly authorized officers as of the date first written
above.
SELLER:
PROVIDENT BANK OF MARYLAND
By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Executive Vice President & CFO
PURCHASER:
GATEWAY BANK & TRUST CO.
By: /s/ D. Xxx Xxxxx
-------------------------------------
Name: D. Xxx Xxxxx
Title: Chairman, President and CEO
33
PURCHASE AND ASSUMPTION AGREEMENT
BETWEEN
PROVIDENT BANK OF MARYLAND
AND
GATEWAY BANK & TRUST CO.
SCHEDULE 1
----------
LIST OF BANKING CENTERS
-----------------------
1. Elizabeth City, NC
000 Xxxx Xxxxxxxxxx Xxxxxx
Xxxxxxxxx Xxxx, XX 00000
2. Emporia, VA
000 Xxxxx Xxxx Xxxxxx
Xxxxxxx, XX 00000
3. Suffolk, VA
0000 Xxxxxx Xxxxxxxxx
Xxxxxxx, XX 00000
PURCHASE AND ASSUMPTION AGREEMENT
BETWEEN
PROVIDENT BANK OF MARYLAND
AND
GATEWAY BANK & TRUST CO.
EXHIBIT LIST
Exhibit No. Description
----------- -----------
1.1(a)(3) Schedule of Leases and Contracts
1.1(b) List of Excluded Assets
1.3(a) Deposit Liabilities
1.4(a) Loans
1.4(h) Power of Attorney
1.6(a) List of Employees
1.6(c) Severance Benefits
2.2(b)(2) Form of Xxxx of Sale
2.2(b)(3) Form of Assignment and Assumption Agreement
2.2(b)(14) Form of Closing Statement