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EXHIBIT 2
EXECUTION VERSION
BRANCH PURCHASE AND ASSUMPTION AGREEMENT
DATED AS OF
MARCH 15, 2005
BETWEEN
LIBERTY SAVINGS BANK, FSB
AND
STATE BANK AND TRUST COMPANY
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TABLE OF CONTENTS
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RECITALS:...............................................................................
1
ARTICLE 1. - CERTAIN
DEFINITIONS........................................................
1
1.1 CERTAIN
DEFINITIONS.......................................................
1
ARTICLE II. - THE
TRANSACTIONS..........................................................
8
2.1 TRANSFER
AND CONSIDERATION................................................
8
2.2 BREAK UP
FEE..............................................................
9
2.3
CONSIDERATION FOR ASSUMPTION OF
LIABILITIES............................... 10
2.4 AGGREGATE
ASSET VALUE AND DEPOSIT PREMIUM.................................
10
2.5 ASSUMPTION
OF IRA DEPOSITS................................................
11
2.6 ASSUMPTION
OF KEOGH DEPOSITS..............................................
11
2.7 ADJUSTMENT
OF NET PREPAID EXPENSES/CHARGES................................
11
2.8 ALLOCATION
OF CONSIDERATION...............................................
11
ARTICLE III. - REPRESENTATIONS AND
WARRANTIES OF SELLER................................. 12
3.1 CORPORATE
ORGANIZATION AND AUTHORITY......................................
12
3.2 NO
CONFLICT; LICENSES AND PERMITS; COMPLIANCE WITH LAWS AND
REGULATIONS...............................................................
12
3.3 APPROVALS
AND CONSENTS....................................................
12
3.4
DEPOSITS..................................................................
13
3.5 FURNITURE,
FIXTURES AND EQUIPMENT.........................................
13
3.6
LOANS.....................................................................
13
3.7 PERSONAL
PROPERTY AND SELLER LEASES.......................................
13
3.8 CONTRACTS
AND DEFAULTS....................................................
14
3.9 EMPLOYEE
BENEFITS.........................................................
14
3.10
LITIGATION AND
LIABILITIES................................................
14
3.11
REGULATORY
MATTERS........................................................
14
3.12
BROKERS'
FEES.............................................................
14
3.13
ENVIRONMENTAL
MATTERS.....................................................
14
3.14
COLLECTIVE BARGAINING
AGREEMENTS.......................................... 15
3.15
INFORMATION FOR REGULATORY
APPROVALS...................................... 15
3.16
ABSENCE OF CERTAIN CHANGES,
ETC........................................... 15
3.17
SOLDIERS AND SAILORS CIVIL RELIEF
ACT..................................... 15
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ARTICLE IV. - REPRESENTATIONS AND
WARRANTIES OF PURCHASER............................... 15
4.1 CORPORATE
ORGANIZATION AND AUTHORITY......................................
15
4.2 NO
CONFLICT; LICENSES AND PERMITS; COMPLIANCE WITH LAWS AND
REGULATIONS...............................................................
16
4.3 APPROVALS
AND CONSENTS....................................................
16
4.4 REGULATORY
MATTERS........................................................
16
4.5 BROKERS'
FEES.............................................................
16
4.6 LITIGATION
AND LIABILITIES................................................
16
4.7 AGREEMENTS
WITH REGULATORY AUTHORITIES....................................
17
4.8
INFORMATION FOR REGULATORY
APPROVALS...................................... 17
4.9 COMMUNITY
REINVESTMENT ACT................................................
17
ARTICLE V. - COVENANTS OF THE
PARTIES...................................................
17
5.1 ACTIVITY
IN THE ORDINARY COURSE...........................................
17
5.2 ACCESS AND
CONFIDENTIALITY................................................
18
5.3 REGULATORY
APPROVALS......................................................
19
5.4
ENVIRONMENTAL ASSESSMENT REPORTS AND PHYSICAL
EXAMINATIONS............... 19
5.5 TITLE TO
BRANCH REAL ESTATE...............................................
21
5.6 NOTICES OF
DEFAULT........................................................
21
5.7 DEPOSIT
SOLICITATION BY PURCHASER.........................................
22
5.8
PERFORMANCE OF
LIABILITIES................................................
22
5.9
CONTRACTS.................................................................
22
5.10
SELLER
LEASES.............................................................
22
5.11
INSURANCE; DESTRUCTION OF OR DAMAGE TO A
BRANCH........................... 22
5.12
INTERFERENCE OR
DAMAGE....................................................
22
5.13
ACCOUNT
LOANS.............................................................
23
5.14
SAFE
DEPOSIT
BUSINESS.....................................................
23
5.15
CONDUCT OF
BUSINESS.......................................................
23
5.16
FIDUCIARY
RELATIONSHIPS...................................................
23
5.17
SOLICITATIONS AND BRANCH
LOCATIONS........................................ 23
5.18
"AS
IS"
CONDITION.........................................................
24
5.19
Deposit
Records...........................................................
24
ARTICLE VI. - TRANSITIONAL
MATTERS......................................................
24
6.1
TRANSITIONAL
ARRANGEMENTS.................................................
24
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6.2
NOTIFICATION OF
DEPOSITORS................................................
25
6.3 ASSUMPTION
OF DEPOSITS....................................................
25
6.4 PAPER
ITEMS...............................................................
26
6.5 RETURNED
ITEMS............................................................
26
6.6 AUTOMATED
CLEARING HOUSE CREDIT AND DEBITS................................
27
6.7 WIRE
TRANSFERS............................................................
27
6.8
ESCHEATABLE
DEPOSITS......................................................
27
6.9
MAINTENANCE OF
RECORDS....................................................
28
6.10
IRA
AND KEOGH
ACCOUNTS....................................................
28
6.11
ATM/DEBIT
CARDS...........................................................
28
6.12 DATA PROCESSING
CONVERSION OF DEPOSITS AND HANDLING OF CERTAIN ITEMS......
29
6.13
STATEMENT OF
ACCOUNTS.....................................................
29
6.14
CONTINUING AVAILABILITY OF RECORDS; ACCOUNT
HISTORIES..................... 29
6.15
DEPOSIT
COLLATERAL........................................................
29
6.16
VENDOR
RELATIONSHIPS......................................................
29
6.17
FURTHER
ASSURANCES........................................................
29
ARTICLE VII. - TAXES AND EMPLOYEE
BENEFITS.............................................. 30
7.1 PRORATION
OF TAXES........................................................
30
7.2 INTEREST
REPORTING AND WITHHOLDING........................................
30
7.3 SALES AND
TRANSFER TAXES, TITLE INSURANCE.................................
31
7.4 ASSISTANCE
AND COOPERATION................................................
31
7.5 EMPLOYEE
BENEFITS.........................................................
31
ARTICLE VIII. - CONDITIONS TO
CLOSING...................................................
33
8.1 CONDITIONS
TO OBLIGATIONS OF PURCHASER....................................
33
8.2 CONDITIONS
TO OBLIGATIONS OF SELLER.......................................
33
ARTICLE IX. - CLOSING
PROCEDURES........................................................
34
9.1 CLOSING
DATE AND PLACE....................................................
34
9.2 PAYMENT
DUE AT CLOSING....................................................
34
9.3 CLOSING
DOCUMENTS TO BE DELIVERED OR ACTIONS TO BE TAKEN BY SELLER........
34
9.4 CLOSING
DOCUMENTS TO BE DELIVERED OR ACTIONS TO BE TAKEN BY
PURCHASER.................................................................
36
9.5 POST
CLOSING
ADJUSTMENTS..................................................
37
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ARTICLE X. -
TERMINATION................................................................
38
10.1
TERMINATION...............................................................
38
10.2
EFFECT OF
TERMINATION.....................................................
39
ARTICLE XI. -
INDEMNIFICATION...........................................................
39
11.1
INDEMNIFICATION...........................................................
39
ARTICLE XII.-
MISCELLANEOUS.............................................................
41
12.1
SURVIVAL..................................................................
41
12.2
ASSIGNMENT................................................................
41
12.3
BINDING
EFFECT............................................................
41
12.4
PUBLIC
NOTICE.............................................................
42
12.5
NOTICES...................................................................
42
12.6
INCORPORATION.............................................................
42
12.7
GOVERNING
LAW.............................................................
43
12.8
ENTIRE
AGREEMENT..........................................................
43
12.9
COUNTERPARTS..............................................................
43
12.10
HEADINGS..................................................................
43
12.11
WAIVER....................................................................
43
12.12
EXPENSES..................................................................
43
12.13
COMPUTATION OF
INTEREST...................................................
43
12.14
THIRD-PARTY
BENEFICIARIES.................................................
43
12.15
SEVERABILITY..............................................................
43
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EXHIBITS
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Exhibit A Branches
Exhibit B Preliminary Settlement
Statement
Exhibit C Assignment and
Assumption Agreement
Exhibit D Bill of Sale and
Assignment
Exhibit E Retirement Account
Transfer Agreement
Exhibit F Form of Seller's
Officer's Certificate
Exhibit G Form Purchaser's
Officer's Certificate
Exhibit H Final Settlement
Statement
Exhibit I Power of Attorney
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SCHEDULES
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Schedule 1.1(a) Assumed
Contracts
Schedule 1.1(b) ATMs
Schedule 1.1(c) Other
Liabilities
Schedule 1.1(d) Officers
with "Knowledge"
Schedule 1.1(e)
Uncollectible Loans
Schedule 3.3
Approvals and Consents
Schedule 3.4
Deposits
Schedule 3.5
Furniture, Fixtures and Equipment
Schedule 3.6
Loans
Schedule 3.10
Litigation and Liabilities
Schedule 3.11
Regulatory Matters
Schedule 3.13
Environmental Matters
Schedule 3.16
Absence of Certain Changes, Etc.
Schedule 4
Exceptions to Purchaser's Representations and Warranties
Schedule 5.1 Planned
Improvements
Schedule 6.15
Deposit Collateral
Schedule 7.5(a)
Purchaser's Estimate of Employees to be Hired
Schedule 9.3(a)(i) Cash on Hand
Schedule 9.3(a)(ii) Net Prepaid Expenses
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vi
<PAGE>
BRANCH PURCHASE AND ASSUMPTION AGREEMENT
BRANCH
PURCHASE AND ASSUMPTION AGREEMENT, dated as of March 15, 2005
between Liberty Savings Bank, FSB, a
Federal Savings Bank with its principal
offices at 2251 Rombach Avenue, Wilmington,
Ohio 45177 ("Seller"), and State
Bank and Trust Company, an Ohio banking
corporation and wholly owned subsidiary
of Rurban Financial Corp., with its
principal offices at 401 Clinton Street,
Defiance, Ohio 43512 ("Purchaser").
RECITALS:
A. Subject
to the terms, provisions and conditions set forth herein,
Purchaser wishes to purchase from Seller,
and Seller wishes to sell to
Purchaser, certain branch banking locations
of Seller located in Lima, Ohio, as
further described herein.
B. Seller
desires to sell, and Purchaser desires to acquire, in
accordance
with the terms and provisions of this
Agreement, certain assets of Seller
associated with the Branches as defined
herein.
C. Seller
desires to assign to Purchaser, and Purchaser desires to assume
from Seller, in accordance with the terms
and provisions of this Agreement,
certain liabilities of Seller associated
with the Branches.
NOW,
THEREFORE, in consideration of the premises and the mutual
promises
and covenants contained herein and for
other good and valuable consideration,
the receipt and sufficiency of which are
hereby acknowledged, and intending to
be legally bound hereby, Seller and
Purchaser agree as follows:
ARTICLE 1.
CERTAIN DEFINITIONS
1.1
CERTAIN DEFINITIONS. As used in this Agreement, the terms below
shall
have the meanings set forth.
"ACCOUNT"
means, as of any date, a deposit liability of Seller which is
maintained at the Branches and which is not
represented by a certificate of
deposit having a fixed maturity.
"ACCRUED
INTEREST" means, at any date, on any Deposits or loans,
interest
which has accrued on such Deposits or loans
to such date but not yet posted to
such accounts.
"ACCRUED
EXPENSES" means the accrued expenses that appear as a liability
in respect of any Branch on the financial
statements of Seller prepared in
accordance with Section 2.7.
"AFFILIATE" of a person means any person directly or indirectly
controlling or controlled by or under
direct or indirect common control with
such person.
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"AGGREGATE
ASSET VALUE" shall have the meaning set forth in Section 2.4.
"AGREEMENT" means this Branch Purchase and Assumption Agreement,
including
all schedules, exhibits and addenda as
modified, amended or extended from time
to time.
"ALLOCATION" shall have the meaning set forth in Section 2.8.
"APPRAISED
VALUE" means the dollar value of the Branch Real Estate
determined in accordance with a market
value average of two independent
appraisals performed by certified Ohio
appraisers, one each selected
independently by Purchaser and Seller,
costs of which would be borne separately
by Purchaser and Seller.
"ASSETS"
means the Branch Real Estate and with respect to the Branches,
the Furniture, Fixtures and Equipment, Cash
on Hand, Seller Leases, safe deposit
boxes (exclusive of the contents thereof),
Prepaid Expenses, the Records, the
Deposit-Related Loans, the Other Loans, the
Deposit Collateral, if purchased by
Purchaser pursuant to Section 6.15, valued
at the Deposit Collateral Value and
any fees and charges related to the
Deposits for periods after, but not before,
Closing including the Prepaid FDIC
Insurance Premium.
"ASSUMED
CONTRACT" means a Seller Lease, equipment lease or a service or
similar contract that relates to the
operations of the Branches, and which
Seller Lease, equipment lease or other
contract is set forth on Schedule 1.1 (a)
and will be assumed by Purchaser on the
Closing Date.
"ATMs"
means all automated teller machines at the Branches as listed
on
Schedule 1.1 (b) hereto.
"BRANCH
REAL ESTATE" means all real property, Improvements, and
interests
therein owned by Seller at which Branches
are located, and which includes any
real property or interest subject to a
Seller Lease.
"BRANCHES"
means each of the branches and other banking offices of Seller
owned by Seller to be acquired by Purchaser
under this Agreement, each as
identified on Exhibit A hereto.
"BREAK UP
FEE" shall have the meaning set forth in Section 2.2.
"BUSINESS
DAY" means a day on which Seller is open for business in the
State of Ohio and which is not a Saturday
or Sunday.
"CASH
PAYMENT" shall have the meaning set forth in Section 2.3.
"CASH ON
HAND" means with respect to the Branches and as of any date,
all
cash on hand including petty cash, vault
cash, teller cash, ATM cash, and
prepaid postage, excluding Escrow
Balances.
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"CEILING
AMOUNT" shall have the meaning set forth in Section 11.1(f).
"CLOSE OF
BUSINESS" means the local time that the Branches close to the
public.
"CLOSING"
and "CLOSING DATE" refer to the closing for the sale, purchase
and assumption provided for herein to be
held at such time and date as provided
for in Article 9 hereof.
"CODE"
means the Internal Revenue Code of 1986, as amended.
"CORRESPONDENT ACCOUNT" shall have the meaning set forth in
Section
6.1(b).
"DEPOSITS"
means with respect to the Branches and as of any date, all
deposit liabilities of Seller that are
Accounts or certificates of deposit,
including Accrued Interest and all
uncollected items included in depositors'
balances; provided, however, that Deposits
shall not include (i) IRA Accounts
and Keogh Accounts which will not be or
have not been transferred to Purchaser
in accordance with Sections 2.5 and 2.6,
(ii) any deposit liabilities which, by
law or contract (including the terms of any
relevant deposit agreement), either
Purchaser is not permitted to assume or
Seller is not permitted to sell,
transfer, assign or otherwise dispose,
(iii) any Deposits related to any
Uncollectible Loans or Branch Deposits that
have been overdrawn for a
consecutive thirty (30) day period at any
time within the twelve (12) months
prior to the Closing Date, (iv) deposits
subject to any legal process or
attachment, (v) deposits of Seller benefit
plans and Seller's insiders, and (vi)
brokered deposits.
"DEPOSIT
COLLATERAL" means securities, loans, or other assets of the
Seller which are pledged to secure Deposits
or otherwise subject to an
Encumbrance and function as security for
the Deposits. Purchaser shall have the
right to substitute appropriate collateral
in accordance with Section 6.15.
"DEPOSIT
COLLATERAL SECURITY AGREEMENT" means the instrument giving rise
to the Encumbrance on the Deposit
Collateral, or pursuant to which the Deposit
Collateral is pledged to, or otherwise
secures, the Deposits.
"DEPOSIT
COLLATERAL VALUE" means the Market Value of the Deposit
Collateral as of the Closing Date;
provided, however, that for purposes of the
cash payment pursuant to Section 9.2,
Deposit Collateral Value shall be equal to
such Market Value as of the Close of
Business on the fifth Business Day prior to
Closing.
"DEPOSIT
PREMIUM" shall have the meaning set forth in Section 2.4(b).
"DEPOSIT-RELATED LOANS" means with respect to the Branches, loans
secured
by deposits in savings accounts or by
certificates of deposit and overdrafts in
respect of Transaction Accounts (other than
overdrafts extended pursuant to a
formal line of credit or similar
arrangement that are secured primarily by
assets other than Deposits).
"EMPLOYEES" means with respect to the Branches, (i) any
employee,
including without limitation, those
employees who on the Closing Date are on
medical leave, family leave, military
3
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leave or personal or pregnancy leave
previously identified by the Seller to the
Purchaser as a Branch related employee
employed by Seller or its Affiliates on
the date hereof or on Closing Date and (ii)
such other employees of Seller as
may be agreed between Seller and
Purchaser.
"ENCUMBRANCES" means all mortgages, claims, charges, liens,
encumbrances,
easements, limitations, restrictions,
commitments and security interests, except
for statutory liens securing payments not
yet due, the Seller Leases, liens
incurred in the ordinary course of
business, including without limitation liens
in favor of mechanics or materialmen, other
liens, charges, security interests,
encumbrances, or such other imperfections
of title, which in each case do not
materially and adversely affect the use of
the properties or assets subject
thereto or affected thereby or which
otherwise do not materially impair business
operations at such properties, and except
for obligations pursuant to the
unclaimed property law of the State of Ohio
relating to the escheatable
deposits.
"ENVIRONMENTAL LAW" means any Federal, state and local law (whether
under
common law, statute, rule, regulation or
otherwise), requirement under permits
issued with respect thereto, and other
orders, decrees, judgments, directives or
other requirements of a governmental
authority relating to the environment or to
a Hazardous Substance.
"ERISA"
means the Employee Retirement Income Security Act of 1974, as
amended.
"ESCROW
BALANCES" means amounts held in custody by Seller for insurance
and taxes for or otherwise related to, the
Deposit-Related Loans and the Other
Loans.
"EXAMINATIONS" shall have the meaning set forth in Section 5.4.
"FDIC" means the
Federal Deposit Insurance Corporation.
"FEDERAL
FUNDS RATE" means, on any day, the per annum rate of interest
(rounded upward to the nearest 1/100 of 1
percent) which is the weighted average
of the rates on overnight federal funds
transactions arranged on such day or, if
such day is not a banking day, the previous
banking day, by federal funds
brokers computed and released by the
Federal Reserve Bank of Cleveland (or any
successor) in substantially the same manner
as such Federal Reserve Bank
currently computes and releases the
weighted average it refers to as the
"Federal Funds Effective Rate" at the date
of this Agreement.
"FEDERAL
RESERVE BOARD" means the Board of Governors of the Federal
Reserve System.
"FINAL
PAYMENT AMOUNT" shall have the meaning set forth in Section
9.5(c).
"FINAL
SETTLEMENT STATEMENT" shall have the meaning set forth in
Section
9.5(b).
"FLOOR
AMOUNT" shall have the meaning set forth in Section 11.1(e).
"FURNITURE, FIXTURES AND EQUIPMENT" means with respect to the
Branches,
all furniture, fixtures and equipment that
are owned by Seller and also includes
all ATMs and any related
4
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equipment as listed on Schedule 3.5;
excluding any furniture, fixtures and
equipment owned by a tenant at any Branch
Real Estate leased pursuant to a
Seller Lease.
"HAZARDOUS
SUBSTANCE" means any chemical, compound, material, mixture or
substance that is now or hereafter defined
or listed in any Environmental Laws
as a "hazardous waste," "hazardous
substance," "hazardous material," "extremely
hazardous waste," "infectious waste,"
"toxic substance," "toxic pollutant" or
other formulation intended to define, list,
or classify substances by reason of
deleterious properties.
"HIRED
EMPLOYEES" shall have the meaning set forth in Section 7.5(a).
"IMPROVEMENTS" means all improvements to the owned real estate in
respect
of the Branches purchased, installed or
constructed by or on behalf of Seller or
used in connection with the operation or
maintenance of any Branch.
"INCLEARING PERIOD" shall have the meaning set forth in Section
6.4(b).
"INDIVIDUAL RETIREMENT ACCOUNT" or "IRA" means an account created
by a
trust for the exclusive benefit of any
individual or his beneficiaries in
accordance with the provisions of Section
408 of the Code.
"IRS"
means the Internal Revenue Service.
"KEOGH
ACCOUNT" or "KEOGH" means an account created by a trust for the
benefit of employees (some or all of whom
are self-employed persons) and that
complies with the provisions of Section 401
of the Code.
"LIABILITIES" means Seller's obligations with respect to the
period
following the Closing Date regarding the
(i) Deposits, (ii) Assumed Contracts,
(iii) Seller's obligations to provide
services in connection with the Assets and
the Deposits, including obligations with
respect to safe deposit boxes, (iv)
Accrued Expenses, (v) any liabilities for
transfer taxes, title insurance
premiums, sales or use taxes, recording
fees or other fees or costs associated
with Closing, (vi) Escrow Balances and
(vii) such other liabilities of Seller as
may be set forth on Schedule 1.1(c) (the
"Other Liabilities"); excluding,
however, any Assumed Contracts as to which
any consents required to transfer the
same to Purchaser at Closing cannot be
obtained.
"LOSSES"
means claims, judgments, settlements, penalties, fines, losses,
liabilities, obligations or duties (of any
kind or nature, whether or not
accrued or fixed, absolute or contingent,
determined or determinable) damages
(including compensatory or punitive damages
and forgiveness or cancellation of
obligations), expenses, interest, costs and
legal fees and disbursements,
collectively.
"MARKET
STREET BRANCH" means the Branch located at 930 West Market
Street,
Lima, Ohio, 45805.
5
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"MARKET
VALUE" means the average of (i) the dollar amount of a bid to
purchase the subject Deposit Collateral
from a brokerage firm chosen by Seller;
and (ii) the dollar amount of a bid to
purchase the subject Deposit Collateral
from a brokerage firm chosen by
Purchaser.
"MATERIAL
ADVERSE EFFECT" means, unless the context otherwise requires, a
material adverse effect on the business of
the Branches, taken as a whole in
respect of all such Branches, or on the
consummation of the transactions
contemplated hereby; provided, however,
notwithstanding anything contained
herein to the contrary, an adverse effect
resulting from the announcement of the
transactions contemplated by or the
execution of this Agreement shall not
constitute a "Material Adverse Effect" nor
shall it constitute a "material
adverse change" as described in Section
3.16 hereof.
"NET BOOK
VALUE" shall mean the net book value as determined in
accordance
with Generally Accepted Accounting
Principles applied on a consistent basis.
"NET
PREPAID EXPENSES" means Prepaid Expenses less Accrued Expenses.
"OCC"
means the Office of the Comptroller of the Currency.
"OTHER
LOANS" means loans of the Branches other than Deposit-Related
Loans
or Uncollectible Loans, as described on
Schedule 3.6 as "Other Loans" (including
loan commitments referred to thereon).
"OTS"
means the Office of Thrift Supervision.
"PAPER
ITEMS" shall have the meaning set forth in Section 6.3.
"PRELIMINARY DEPOSIT PREMIUM" shall mean: (i) eight and twenty-five
one
hundreds percent (8.25%) of the aggregate
amount of the Deposits set forth in
Schedule 3.4, excluding all uncollected
items in depositors' balances, if
Regulatory Approval is obtained on or
before the Target Date, or (ii) nine and
zero one hundreds percent (9.0%) of the
aggregate amount of the Deposits set
forth in Schedule 3.4, excluding all
uncollected items in depositors' balances,
if Regulatory Approval is obtained after
the Target Date, unless such failure to
obtain Regulatory Approval on or before the
Target Date is the result of: (i) a
breach by Seller of the terms of this
Agreement, or (ii) the refusal of the
applicable governmental and regulatory
authorities whose consents, approvals and
authorizations are required in order for
Purchaser to consummate the
transactions contemplated herein, to grant
such Regulatory Approval on or before
the Target Date as a result of an action by
or the condition of Seller.
"PRELIMINARY SETTLEMENT STATEMENT" shall have the meaning set forth
in
Section 9.2.
"PREPAID
EXPENSES" means, as of the Closing Date, the prepaid expenses
that would otherwise appear as an asset in
respect of any Branch on the
financial statements of Seller prepared in
accordance with Generally Accepted
Accounting Principles and in accordance
with Section 2.7 plus the pro rated
amount of the Prepaid FDIC Insurance
Premium, whether or not it appears on the
financial statements of Seller.
6
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"PREPAID
FDIC INSURANCE PREMIUM" means the amount of insurance premiums
paid by Seller to the FDIC for deposit
insurance with respect to the Deposits
for any period after the Closing Date.
"PURCHASER'S OBJECTION" shall have the meaning set forth in
Section
9.5(d).
"PURCHASER'S OFFICER'S CERTIFICATE" shall have the meaning set
forth in
Section 8.2(b).
"RECORDS"
means all records and original documents in Seller's possession
or control which pertain to and are
utilized by Seller or reasonably necessary
to administer, reflect, monitor, evidence
or record information respecting the
business or conduct of the Branches and all
such records and original documents
respecting (i) the Assumed Contracts, (ii)
the Assets, (iii) the Deposits, (iv)
the Employees and (v) the ATMs, including
all such records maintained on
electronic or magnetic media in the
electronic data base system of Seller or its
Affiliates, or to comply with applicable
laws and governmental regulations to
which the Deposits are subject.
"REGULATORY APPROVALS" means all approvals, permits,
authorizations,
waivers or consents of governmental
agencies or authorities necessary or
appropriate to permit consummation of the
transactions contemplated herein and
includes, without limitation, as applicable
(i) approval of the FDIC under the
Federal Deposit Insurance Act ("FDIA"); and
(ii) as applicable, approval by the
primary regulator of Purchaser and Seller,
including the OTS, the OCC, the
Federal Reserve Board and approval by the
appropriate regulatory authorities in
the various states of the United States or
any other state or federal agency
whose approval of the transactions
contemplated under this Agreement is
required.
"RESEARCH"
means search, retrieval, photocopying, transmission,
delivering, compilation, reordering, or
other tasks relating to the Records.
"SAFE
DEPOSIT BUSINESS" shall have the meaning set forth in Section
5.14.
"SELLER'S
KNOWLEDGE" or "PURCHASER'S KNOWLEDGE" or other similar phrases
means all information which is actually
known by those officers of Seller or
Purchaser involved with negotiation of this
Agreement and that are listed on
Schedule 1.1(d).
"SELLER
LEASE" means any of the real estate leases or subleases whereby
Seller is the lessor or sublessor of real
estate at or adjacent to Branches, as
indicated in Schedule 1.1(a).
"SELLER'S
OFFICER'S CERTIFICATE" shall have the meaning set forth in
Section 8.1(b).
"TARGET
DATE" means the date that is the earlier of: (i) sixty (60)
calendar days from the date the
applications for the Regulatory Approvals are
filed; or (ii) seventy five (75) calendar
days from the date hereof.
"TAX
RETURNS" means any return or other report required to be filed
with
respect to any Taxes, including
declarations of estimated tax and information
returns.
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"TAXES"
means any federal, state, local, or foreign taxes, including
but
not limited to taxes on or measured by
income, estimated income, franchise,
capital stock, employee's withholding,
non-resident alien withholding, backup
withholding, social security, occupation,
unemployment, disability, value added
taxes, taxes on services, real property
taxes or special assessments, personal
property, sales, use, excise, transfer,
gross receipts, inventory and
merchandise, business privilege, and other
taxes or governmental fees or charges
or amounts required to be withheld and paid
over to any government in respect of
any tax or governmental fee or charge,
including any interest, penalties, or
additions to tax on the foregoing whether
or not disputed.
"TERMINATION DATE" means July 29, 2005.
"TRANSACTION ACCOUNT" means any account at a Branch in respect of
which
deposits therein are withdrawable in
practice upon demand or upon which third
party drafts may be drawn by the depositor,
including checking accounts, NOW
accounts and money market deposit
accounts.
"UNCOLLECTIBLE LOANS" means any loans that, in Seller's
reasonable
discretion, are past-due, uncollectible, do
not satisfy reasonable underwriting
or performance criteria and listed on
Schedule 1.1(e) or which become such after
the date of execution, which such
Uncollectible Loans shall be excluded from the
Deposit-Related Loans and Other Loans being
transferred to Purchaser hereunder.
"UPDATED
DEPOSIT PREMIUM" shall mean: (i) eight and twenty-five one
hundreds percent (8.25%) of the aggregate
amount of the Deposits set forth in
updated Schedule 3.4 delivered by Seller
pursuant to Section 9.5, excluding all
uncollected items in depositors' balances,
if Regulatory Approval is obtained on
or before the Target Date, or (ii) nine and
zero one hundreds percent (9.0%) of
the aggregate amount of the Deposits set
forth in updated Schedule 3.4 delivered
by Seller pursuant to Section 9.5,
excluding all uncollected items in
depositors' balances, if Regulatory
Approval is obtained after the Target Date,
unless such failure to obtain Regulatory
Approval on or before the Target Date
is the result of: (i) a breach by Seller of
the terms of this Agreement, or (ii)
the refusal of the applicable governmental
and regulatory authorities whose
consents, approvals and authorizations are
required in order for Purchaser to
consummate the transactions contemplated
herein, to grant such Regulatory
Approval on or before the Target Date as a
result of an action by or the
condition of Seller.
The
meanings of defined terms are equally applicable to the singular
and
plural forms of the defined terms.
ARTICLE II.
THE TRANSACTIONS
2.1
TRANSFER AND CONSIDERATION. Subject to the terms and conditions
set
forth in this Agreement and except as
otherwise indicated in the Schedules
hereto, at the Closing, Purchaser shall (a)
purchase the Assets and (b) assume
the Liabilities and Seller shall sell,
grant, assign,
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transfer, convey and deliver to Purchaser,
all of Seller's right, except as set
forth in Section 7.3, title and interest in
and to (i) such Assets, and (ii)
such Liabilities.
2.2 BREAK
UP FEE .
(a) Upon
execution of this Agreement, Purchaser shall deposit
immediately
available funds in an amount equal to One
Hundred Thousand Dollars ($100,000.00)
(the "Break Up Fee") in an escrow account
at Purchaser, such Break Up Fee to be
subject to release as provided herein.
(b) The
Break Up Fee shall be retained by Purchaser if this Agreement
is
terminated:
(i) by Purchaser and Seller in accordance with Section
10.1(a),
(ii) by Purchaser in accordance with Section 10.1(b),
(iii) by Purchaser in accordance with Section 10.1(d),
(iv) by Purchaser in accordance with Section 10.1(e)(ii);
provided, however, that for purposes of this Section
2.2(b)(iv),
Purchaser shall only be entitled to retain the Break Up Fee if
the
denial or revocation of any Regulatory Approval is the result of
an
action by or the condition of Seller and, otherwise, Seller shall
be
entitled
to receive the Break Up Fee,
(v) by Purchaser in accordance with Section 10.1(f)(ii);
provided, however, that for purposes of this Section 2.2(b)(v),
Purchaser shall only be entitled to retain the Break Up Fee if
the
withdrawal by Purchaser of its application for Regulatory
Approval
is the result of communication by one of the applicable
governmental
and regulatory authorities whose consents, approvals and
authorizations are
required in order for Purchaser to consummate the
transactions contemplated herein of its unwillingness to grant
Regulatory Approval on or before the Target Date as a result of
an
action by or the condition of Seller and, otherwise, Seller shall
be
entitled to receive the Break Up Fee,
(vi) by Purchaser in accordance with Section 10.1(g).
(c) The
Break Up Fee shall be paid and distributed to Seller if this
Agreement is terminated:
(i) by Seller in accordance with Section 10.1(b),
(ii) by Seller in accordance with Section 10.1(c),
(iii) by Seller in accordance with Section 10.1(d),
(iv) by Seller in accordance with Section 10.1(e)(i), or
(v) by Seller in accordance with Section 10.1(f).
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<PAGE>
(d) If the
Closing occurs on or before the Termination Date, the Break Up
Fee shall be credited towards the Aggregate
Asset Value due to Seller from
Purchaser. The Break Up Fee shall be in
addition to all other rights, claims and
causes of action Seller may have at law or
in equity. Purchaser expressly agrees
that the amount of the Break Up Fee is fair
and reasonable and does not
constitute a penalty or liquidated damages.
In the event Seller is entitled to
the Break Up Fee in accordance with the
terms of this Section 2.2 and Purchaser
unreasonably delays distribution of the
Break Up Fee to Seller or fails to
distribute the Break Up Fee to Seller,
Purchaser shall, in addition to payment
of the Break Up Fee, reimburse Seller for
all damages, losses, costs, fees and
expenses (including attorneys' fees)
incurred by Seller in connection with
obtaining the Break Up Fee.
2.3
CONSIDERATION FOR ASSUMPTION OF LIABILITIES. Subject to the
provisions
of Article IX hereof, as consideration for
the assumption of the Liabilities,
Seller shall pay to Purchaser an amount
(the "Cash Payment") in United States
dollars, which shall be equal to (a) one
hundred percent (100%) of the aggregate
amount of the Deposits as of Close of
Business on the Closing Date, minus (b)
the Aggregate Asset Value, minus (c) the
Deposit Premium.
2.4
AGGREGATE ASSET VALUE AND DEPOSIT PREMIUM.
(a) Aggregate Asset Value. The aggregate value of the Assets
(the
"Aggregate
Asset Value") will be an amount equal to the sum of the
following:
(i) the Appraised Value of Branch Real Estate;
(ii) the aggregate fair market value, as agreed by Purchaser
and Seller, of all of the items of Furniture, Fixtures and
Equipment
not included in leasehold improvements, as determined by a
fixed
asset physical inventory jointly performed as of the Close of
Business as of the last day of the month preceding the month in
which the Closing Date occurs;
(iii) the aggregate principal amount of the Deposit-Related
Loans and Other Loans to be delivered at Closing, plus accrued
and
unpaid interest thereon excluding any Uncollectible Loans and
related accrued and unpaid interest thereon (but excluding for
purposes of such Aggregate Asset Value any unfunded loan
commitments
referred to thereon, uncollected fees, charges or penalties);
(iv) the aggregate amount of Cash on Hand as of the Close of
Business on the Closing Date;
(v) the aggregate amount of the Net Prepaid Expenses as of the
Close of Business on the Closing Date as determined in
accordance
with Generally Accepted Accounting Principles;
(vi) the Deposit Collateral Value; and
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<PAGE>
(vii) the Prepaid FDIC Insurance Premium, if any, paid by the
Seller after the signing of this Agreement and before Closing.
(b) Deposit Premium. The deposit premium ("Deposit Premium")
shall
be a
dollar amount equal to the Preliminary Deposit Premium determined
on
the
Closing Date. An Updated Deposit Premium will be determined and
paid
in
accordance with Section 9.5.
2.5
ASSUMPTION OF IRA DEPOSITS. With respect to Deposits which are
IRAs,
Seller will use its reasonable efforts and
will cooperate with Purchaser, both
before and for a period of not less than
thirty (30) calendar days nor more than
sixty (60) calendar days after the Closing,
in taking whatever actions as are
reasonably necessary to accomplish either
the appointment of Purchaser as
successor custodian or the delegation to
Purchaser of Seller's authority and
responsibility as custodian of all such IRA
deposits (except self-directed IRA
deposits), including, if necessary to
comply with the rules of account or other
agreement governing such IRAs, sending to
the depositors thereof appropriate
notices, cooperating with Purchaser in
soliciting consents from such depositors,
and filing any appropriate applications
with applicable regulatory authorities.
If any such delegation is made to
Purchaser, Purchaser will perform all of the
duties so delegated and comply with the
terms of Seller's agreement with the
depositor of the IRA deposits affected
thereby. With respect to Deposits which
are self-directed IRA deposits, Seller
shall cooperate with Purchaser to invite
depositors thereof to direct a transfer of
each such depositor's account and the
related Branch Deposit to Purchaser and to
adopt Purchaser's forms of IRA
agreements as a successor to Seller. With
respect to any depositors who do not
transfer such accounts, Seller will use its
reasonable efforts in order to
enable Purchaser to retain such accounts at
the Branches.
2.6 ASSUMPTION
OF KEOGH DEPOSITS. With respect to Purchaser's proposed
assumption of Deposits which are Keogh
Accounts, Seller shall cooperate with
Purchaser to take all steps necessary for
transfer of such Accounts to
Purchaser, including, if required, inviting
depositors thereof to direct a
transfer of each such depositor's Keogh
Account and the related Deposit to
Purchaser, as trustee thereof, and to adopt
Purchaser's form of Keogh Master
Plan as a successor to that of Seller. With
respect to any depositors who do not
transfer such accounts to Purchaser's form
of Keogh Master Plan, Seller will use
its reasonable efforts in order to enable
Purchaser to retain such Keogh
Accounts at the Branches.
2.7
ADJUSTMENT OF NET PREPAID EXPENSES/CHARGES. All expenses accrued
but
not paid ("Accrued Expenses") or prepaid
("Prepaid Expenses") as determined in
accordance with Generally Accepted
Accounting Principles to facilitate the
operations of the Branch prior to the
Closing Date, including, without
limitation, wages, salaries, incentive
compensation (including bonuses), rents,
utility payments, personal property taxes,
and nondelinquent real property taxes
and assessments relating to the Branches or
the Branch Real Estate shall be
pro-rated as of Closing between the
parties. All Deposit related fees and
charges shall be pro-rated through
Closing.
2.8
ALLOCATION OF CONSIDERATION. Purchaser and Seller agree to
allocate
the consideration payable hereunder at the
Closing in accordance with Section
1060 of the Code (the "Allocation"). Within
one hundred twenty (120) calendar
days after the Closing Date, Purchaser
shall provide to Seller Purchaser's
proposed allocation. Within thirty (30)
calendar days after the
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<PAGE>
receipt of such proposed allocation, Seller
shall propose to Purchaser any
changes to such allocation or otherwise
shall be deemed to have agreed with such
allocation. Seller and Purchaser shall
reduce such Allocation to writing,
including jointly and properly executing
completed IRS Form 8594, and any other
forms or statements required by the Code,
Treasury Regulations or the IRS,
together with any and all attachments
required to be filed therewith. Seller and
Purchaser shall file timely any such forms
and statements with the IRS. To the
extent consistent with applicable law,
Seller and Purchaser shall not file any
Tax Return or other documents or otherwise
take any position with respect to
Taxes which is inconsistent with such
Allocation, provided, however, that
neither Seller nor Purchaser shall be
obligated to litigate any challenge to
such Allocation by a governmental
authority. Seller and Purchaser shall promptly
inform one another of any challenge by any
governmental authority to any
Allocation made pursuant to this paragraph
and agree to consult with and keep
one another informed with respect to the
state of, and any discussion, proposal
or submission with respect to, such
challenge.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller
represents and warrants as follows:
3.1
CORPORATE ORGANIZATION AND AUTHORITY. Seller is a Federal
savings
bank, duly organized, validly existing and
in good standing under the laws of
the United States of America and has the
requisite power to execute, deliver and
perform this Agreement and to operate the
Branches. Seller is a member of SAIF
and its Deposits are insured by the FDIC,
subject to applicable FDIC coverage
limitations. Seller has taken all corporate
action necessary in order to execute
and deliver this Agreement and to
consummate the transactions contemplated
hereby. This Agreement is a valid and
binding agreement of Seller.
3.2 NO
CONFLICT; LICENSES AND PERMITS; COMPLIANCE WITH LAWS AND
REGULATIONS. Except as otherwise stated in
this Agreement, the execution,
delivery and performance of this Agreement
by Seller does not, and will not, (i)
violate any provision of its charter or
bylaws or (ii) violate or constitute a
breach of, or default under, any law, rule,
regulation, judgment, decree, ruling
or order of any court, government or
governmental agency to which Seller is
subject or under any agreement or
instrument of Seller, or to which Seller is a
party (except for any required consents of
other parties under Assumed Contracts
in respect of the transactions herein
contemplated), which violation, breach,
contravention or default referred to in
this clause (ii) would have a Material
Adverse Effect. Seller has all material
licenses, franchises, permits,
certificates of public convenience, orders
and other authorizations of all
federal, state and local governments and
governmental authorities necessary for
the lawful conduct of its business at each
of the Branches as now conducted,
except for those licenses, franchises,
permits, certificates of public
convenience, orders and other
authorizations the failure of which to obtain
would not have a Material Adverse Effect.
All such licenses, franchises,
permits, certificates of public
convenience, orders and other authorizations,
are valid and in good standing and are not
subject to any suspension,
modification or revocation or proceedings
related thereto.
3.3
APPROVALS AND CONSENTS. Except as required to obtain the
Regulatory
Approvals or as otherwise disclosed in
writing to Purchaser by Seller in
Schedule 3.3 prior to the date hereof,
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<PAGE>
no notices, reports or other filings are
required to be made, as of the date
hereof, by Seller with, nor are any
consents, registrations, approvals, permits
or authorizations required to be obtained,
as of the date hereof, by Seller
from, any governmental or regulatory
authorities of the United States or the
State of Ohio in connection with the
execution and delivery of this Agreement by
Seller and the consummation by Seller of
the transactions contemplated hereby.
3.4
DEPOSITS.
(a) Schedule 3.4 sets forth an accurate listing of the
Deposits,
prepared
as of the date indicated thereon, listing by category and by
Branch the
amount of such Deposits, together with the aggregate Accrued
Interest
thereon and the average interest rate payable thereon. The
Deposits
represent liabilities of the Seller to the holders thereof. The
Deposits
comply with applicable regulatory requirements except where
failure to
comply would not have a Material Adverse Effect. To Seller's
knowledge,
there are no disputes and Seller has not received notice of any
disputes
relating to the Deposits that would, singularly or in the
aggregate,
constitute a Material Adverse Effect.
(b) To Seller's knowledge, the Deposits (i) are in all respects
genuine
and enforceable obligations of Seller and have been acquired
and
maintained
in full compliance with all applicable laws, including (but not
limited
to) the Truth in Savings Act and regulations promulgated
thereunder; (ii) were acquired in the ordinary course of
Seller's
business;
and (iii) are not subject to any claims with respect to such
Deposits
that are superior to the rights of persons shown on the records
delivered
to Purchaser indicating the owners of the Deposits other than
claims
against such owners of the Deposits, such as state and federal
tax
liens,
garnishments, and other judgment claims, which have matured or
may
mature
into claims against the respective Deposits.
3.5
FURNITURE, FIXTURES AND EQUIPMENT. Attached hereto as Schedule 3.5
is
a true and accurate schedule of all
Furniture, Fixtures and Equipment.
3.6 LOANS.
Schedule 3.6 sets forth all Deposit-Related Loans and Other
Loans, including Accrued Interest thereon.
Each of the Deposit-Related Loans and
Other Loans is, the valid and binding
obligation of the maker thereof,
enforceable in accordance with its terms,
subject to the effect of bankruptcy,
insolvency, reorganization, fraudulent
transfer, statutes of limitation, or
other similar laws and judicial decisions
affecting or relating to the rights of
creditors generally, and to the effect of
general principles of equity. The
Deposit-Related Loans or Other Loans, or
the respective collateral or other
security therefor, comply with applicable
regulatory requirements except where
failure to comply would not have a Material
Adverse Effect.
3.7
PERSONAL PROPERTY AND SELLER LEASES. Each lease relating to
Furniture,
Fixtures and Equipment is the valid and
binding obligation of Seller and there
does not exist with respect to Seller's
obligations thereunder any material
default, or event or condition which
constitutes, or after notice or passage of
time or both would constitute, a material
default on the part of Seller under
any lease relating to Furniture, Fixtures
and Equipment. Seller has heretofore
provided to Purchaser or will provide prior
to the Closing Date, copies of, or
if copies are unavailable, all pertinent
information relating to each lease
relating to Furniture, Fixtures and
Equipment. Each
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<PAGE>
Seller Lease is the valid and binding
obligation of Seller and there does not
exist with respect to Seller's obligations
thereunder any material default, or
event or condition which constitutes, or
after notice or passage of time or both
would constitute, a material default on the
part of Seller under any Seller
Lease. Seller has heretofore provided to
Purchaser or will provide prior to the
Closing Date, copies of, or if copies are
unavailable, all pertinent information
relating to each Seller Lease.
3.8
CONTRACTS AND DEFAULTS. To the knowledge of Seller, no event
has
occurred and remains uncured which
constitutes a material default by any party
(or would, but for the passage of time or
the giving of notice, constitute a
material default) under any material
contract relating to the operation of the
Branches or any other Assumed Contract,
except for those agreements that are
terminable within six (6) months' notice or
involving an obligation of Seller or
the other party or parties thereto of less
than $25,000 in any year and,
excluding for purposes of this Section 3.8,
any Deposit-Related Loans.
3.9
EMPLOYEE BENEFITS. All material benefit plans or contracts (funded
or
unfunded) covering current employees or
former employees of the Branches,
including, but not limited to, "employee
benefit plans" within the meaning of
Section 3(3) of ERISA (the "Plans"), have
been heretofore provided to Purchaser
or will be provided to Purchaser prior to
the Closing Date.
3.10
LITIGATION AND LIABILITIES. Except as set forth in Schedule
3.10,
there are no actions, suits or other legal
proceedings pending or, to Seller's
knowledge, threatened against Seller or any
of its Affiliates with respect to
the Branches, and there are no violations
of law or regulation, in each case,
that could result in any claims against or
obligations or liabilities of Seller
or any of its subsidiaries with respect to
the Branches that, individually or in
the aggregate, could reasonably be expected
to have a Material Adverse Effect.
3.11
REGULATORY MATTERS. Except as listed in Schedule 3.11, there are
no
pending, or, to Seller's knowledge,
threatened, disputes or controversies
between Seller and any Federal, state or
local governmental authority with
respect to the Branches that, individually
or in the aggregate, could be
expected to have a Material Adverse
Effect.
3.12
BROKERS' FEES. Except with respect to its engagement of KeyBanc
Capital Markets, a division of McDonald
Investments Inc., Seller has not
employed any broker or finder or incurred
any liability for any brokerage fees,
commissions or finder's fee in connection
with the transactions contemplated by
this Agreement. Purchaser shall not be
liable for any brokerage fees,
commissions or finders' fees in connection
with the transactions contemplated by
this Agreement and all brokerage fees,
commissions or finders' fees of McDonald
Investments Inc. shall be the sole
responsibility of Seller.
3.13
ENVIRONMENTAL MATTERS. Without conducting any independent
investigation, except as set forth in
Schedule 3.13:
(a) No Hazardous Substances have been disposed of or released
upon
or below,
or is currently stored on, any of the Branches by Seller in
violation
of any Environmental
14
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Law and to
Seller's knowledge no Hazardous Substances are present upon or
below any
of the Branches which would require remediation under any
Environmental Laws;
(b) Seller has not received any written communication from any
governmental authority alleging a violation of any Environmental
Law with
respect to
any of the Branches; and
(c) No person or entity has asserted any claim arising out of,
based
upon, or
resulting from (i) the release into the environment of any
Hazardous
Substance upon or below any of the Branches in violation of any
Environmental Law, or (ii) the violation or alleged violation of
any
Environmental Law with respect to any of the Branches.
3.14
COLLECTIVE BARGAINING AGREEMENTS. Seller is not a party to any
collective bargaining agreement or contract
with any labor organization with
respect to any of the Branches.
3.15
INFORMATION FOR REGULATORY APPROVALS. The information furnished or
to
be furnished by Seller in any regulatory
application filed by Seller or
Purchaser in connection with the Regulatory
Approvals will be true and complete
as of the date so furnished.
3.16
ABSENCE OF CERTAIN CHANGES, ETC. Except as set forth in Schedule
3.16
or as contemplated under this Agreement,
since the date of this Agreement, (i)
Seller's business at the Branches has been
conducted only in, and there has not
been any material transaction other than
according to, the ordinary and usual
course of such businesses and (ii) there
has not been any change in the
financial condition, prospect, properties,
business or results of operations of
the Branches which constitutes a Material
Adverse Effect, or any development or
combination of developments of which Seller
has knowledge which, individually or
in the aggregate, is reasonably likely to
result in a Material Adverse Effect
other than changes in general economic
conditions or changes in banking laws or
regulations of general applicability or
interpretations thereof.
3.17
SOLDIERS AND SAILORS CIVIL RELIEF ACT. No borrower or obligor
under
the Deposit Loans or Other Loans has
requested, and the Seller has not allowed
any relief to any borrower or obligor
pursuant to the Soldiers and Sailors Civil
relief Act of 1940.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser
represents and warrants that, except as set forth on Schedule
4:
4.1
CORPORATE ORGANIZATION AND AUTHORITY. Purchaser is an Ohio
banking
corporation, duly organized, validly
existing and in good standing under the
laws of Ohio. Purchaser has the requisite
corporate power and authority and has
taken all corporate action as necessary in
order to execute and deliver this
Agreement, to consummate the transactions
contemplated hereby, to accept and
maintain the Deposits, to own the Assets,
to assume the Liabilities and to
operate the Branches. Subject to the
foregoing and subject to obtaining the
Regulatory Approvals, this Agreement will
be a valid and binding agreement of
Purchaser.
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Purchaser is a member of the BIF and its
deposits are insured by the FDIC,
subject to applicable FDIC coverage
limitations. Purchaser is duly authorized to
operate a banking business and, upon
receipt of approval of the Ohio Division of
Financial Institutions of the Ohio
Department of Commerce and the Federal
Reserve Board, will be duly authorized to
operate each of the Branches.
4.2 NO
CONFLICT; LICENSES AND PERMITS; COMPLIANCE WITH LAWS AND
REGULATIONS. Except as otherwise stated in
this Agreement, the execution,
delivery, and, subject to the Regulatory
Approvals, the performance of this
Agreement by Purchaser does not, and will
not (i) violate any provision of its
articles or regulations, (ii) constitute or
result in a material breach of any
term, condition or provision of, or
constitute a default under, or give rise to
any right of termination, cancellation or
acceleration with respect to, any
material agreement of Purchaser or (iii) to
Purchaser's knowledge, violate or
constitute a breach or contravention of or
default under any law, rule,
regulation, order, judgment, decree or
filing of or agreement with any
government, governmental authority or court
to which Purchaser is subject or
under any agreement or instrument of
Purchaser, or to which Purchaser is
otherwise bound, which violation, breach,
contravention or default, individually
or in the aggregate, (x) could be expected
to prevent or impair the ability of
Purchaser to perform its obligations under
this Agreement or (y) could impair
the validity or consummation of this
Agreement or the transactions contemplated
hereby.
4.3 APPROVALS
AND CONSENTS. Other than the Regulatory Approvals or as
otherwise disclosed by Purchaser to Seller
in this Agreement, no notices,
reports or other filings are required to be
made by Purchaser with, nor are any
consents, registrations, approvals, permits
or authorizations required to be
obtained by Purchaser from any governmental
or regulatory authorities of the
United States, any State government or any
foreign jurisdictions or any
nongovernmental third parties in connection
with the execution and delivery of
this Agreement by Purchaser and the
consummation of the transactions
contemplated hereby by Purchaser, the
failure to make or obtain any or all of
which could prevent, materially delay or
materially burden the transactions
contemplated by this Agreement.
4.4
REGULATORY MATTERS. Neither Purchaser nor any of its Affiliates
has
received any indication from any Federal,
state or other governmental agency, or
has any reason to know, that such agency
would oppose or refuse to grant or
issue its consent or approval, if required,
with respect to the transactions
contemplated hereby, including, without
limitation, any Regulatory Approval.
4.5
BROKERS' FEES. Except with respect to Friedman Billings Ramsey,
Purchaser has not employed any broker or
finder or incurred any liability for
any brokerage fees, commissions or finders'
fees in connection with the
transactions contemplated by this Ag
