Branch Purchase and Assumption
Agreement
KeyBank National
Association
Agreed Value
shall mean, with regard to the Owned Real Estate and the Leasehold
Estate, its value as reflected by the Appraisal. Agreed Value shall
mean, with regard to the furniture, fixture and equipment which
constitute part of the Assets, the net book value determined as of
the most recent month end preceding the Closing Date under
generally accepted accounting principles (the “Net Book
Value”) of such furniture, fixture and equipment. In no event
shall the Agreed Value of the furniture, fixtures and equipment at
any Branch be less than $5,000.00.
Appraisal shall
mean, with regard to the Owned Real Estate and the Leasehold
Estate, a limited summary format appraisal of its Fair Market Value
furnished by an Appraiser reasonably acceptable to Seller and
Purchaser. For purposes of this Agreement, “Appraiser”
shall mean a reputable appraiser certified as an MIA appraiser with
at least five (5) years’ experience within the previous
ten (10) years as a real estate appraiser working in the
geographic region in which the Owned Real Estate or Leasehold
Estate to be appraised is located, with knowledge of market values
and practices. The cost of the Appraisal shall be paid equally by
each party hereto.
Branch(es)shall
mean each of Seller’s branches identified on Schedule A
hereto.
Code shall mean
the Internal Revenue Code of 1986, as amended, and the regulations
promulgated thereunder.
Encumbrance
shall mean all mortgages, claims, liens, encumbrances, easements,
limitations, restrictions, commitments and security interests,
except for statutory liens securing payments not yet due, liens
incurred in the ordinary course of business and such other liens or
encumbrances which do not materially 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.
ERISA shall
mean the Employee Retirement Income Security Act of 1974, as
amended.
Excluded
Deposits shall mean: (a) any individual retirement account or
similar account created by a trust for the exclusive benefit of an
individual or his beneficiaries in accordance with the provisions
of Section 408 of the Code and any simplified employee pension
account established in accordance with Section 408(k) of the Code
which hold investments in non-deposit instruments;
(b) deposits which have been pledged to secure, or as to which
the owner is an obligor with regard to, any extension of credit by
Seller or an affiliate of Seller other than a Loan, (c) in the
event that the Loans are rejected by Purchaser pursuant to
Section 1.08(b) hereof, deposits which have been pledged to
secure any Loan, and (d) any deposits obtained directly or
indirectly through a “deposit broker” (as that term is
defined in Section 337.6(a)(5) of the Rules and Regulations of
the FDIC, 12 CFR 337.6(a)(5)).
Fair Market
Value shall mean, with regard to the Owned Real Estate and the
Leasehold Estate, the price in terms of money which it will bring,
free and clear of all indebtedness and, in the case of the
Leasehold Estate, subject to all of the terms of the Lease creating
such Leasehold Estate, if exposed to the open market, allowing a
reasonable time to find a purchaser, who buys with the intention of
using the Owned Real Estate or the Leasehold Estate for conducting
the business of banking.
Federal Funds
Rate shall mean the “near closing bid” federal funds
rate published in the Wall Street Journal on the first business day
following the Closing.
Knowledge shall
mean, with regard to Article X hereof, the actual present
knowledge as of the date hereof, without further investigation, of
any Vice President in KeyCorp’s Corporate Real Estate Group
and, with regard to Sections 3.01(j) and 5.01 hereof, the
actual present knowledge as of the date hereof, without further
investigation, of any officer that holds the title of Senior Vice
President or above of Seller and has responsibility with respect to
the operations conducted at the Branches.
Mediator shall
mean the firm of Deloitte & Touche LLP.
Permitted
Exceptions shall mean, with respect to the Owned Real Estate or the
Leasehold Estate, (a) those standard printed exceptions appearing
as Schedule B items in a standard American Land Title
Association (“ALTA”) owner’s or leasehold title
insurance policy, as the case may be, (provided, however, that if
Purchaser elects to obtain a survey as to any of the Owned Real
Estate or Leasehold Estate, the Permitted Exceptions for such Owned
Real Estate or Leasehold Estate shall not include the standard
exception for matters that would be disclosed by a survey, but
shall include specific exceptions, if any, disclosed by such survey
provided that such specific exceptions are otherwise included in
the definition of Permitted Exceptions), (b) statutory liens
for current real estate taxes or assessments, both general and
special, not yet due, or if due not yet delinquent, or the validity
of which is being contested in good faith by appropriate
proceedings; (c) all zoning laws and rulings, easements,
rights of way, and restrictions of record; (d) such other
liens, imperfections in title, charges, easements, restrictions,
and encumbrances (but in all cases excluding those which secure
borrowed money) which individually and in the aggregate are not
material in character, amount, or extent, or do not materially
detract from the value of, or materially interfere with, the
present use of, any Owned Real Estate or any Leasehold Estate
subject thereto or affected thereby; (e) any exceptions to
title arising from the action, inaction, or status of Purchaser;
and (f) such other exceptions as are approved in writing by
Purchaser.
Regulatory
Approvals shall mean all approvals, permits, authorizations,
waivers, or consents of governmental agencies or authorities
necessary or appropriate to permit consummation of the transaction
contemplated hereby.
BRANCH PURCHASE AND ASSUMPTION
AGREEMENT
This Branch
Purchase and Assumption Agreement (“Agreement”), dated
as of April 10, 1997, is made by and between KeyBank National
Association, a national banking association (“Seller”),
and Lorain National Bank, a national banking association
(“Purchaser”). Certain definitions used herein are set
forth in the Index of Definitions of this Agreement.
In
consideration of the mutual promises hereinafter contained and
other good and valuable consideration, Seller and Purchaser hereby
agree as follows:
ARTICLE I
The Transaction
1.01 The
Transaction. Subject to the terms and conditions set forth in this
Agreement, at the Closing, (a) Purchaser shall purchase the
Assets and shall assume the Liabilities, and Seller shall assign,
transfer, convey, and deliver to Purchaser, free and clear of all
Encumbrances, all of Seller’s right, title and interest in
and to such Assets and such Liabilities and (b) Purchaser
shall assume and thereafter honor and fully and timely pay, perform
and discharge all of Seller’s obligations and liabilities of
every type and character relating to the Assets and Liabilities.
Purchaser understands and agrees that it is purchasing only the
Assets (and assuming only the Liabilities) specified in this
Agreement and, except as may be expressly provided for in this
Agreement, Purchaser has no interest in, right to, or obligations
relating to any other business relationship which Seller may have
with any customer of any of the Branches.
1.02 Assets and
Liabilities Purchased and Assumed.
(a) Assets.
For purposes of this Agreement, “Assets” shall
mean:
(i) all
real property owned by Seller on which Branches are located,
including all of Seller’s rights in and to all improvements
thereon (“Owned Real Estate”) and all leasehold estates
held by Seller (“Leasehold Estate”) in and to any real
estate on which any of the Branches is situated, including all of
Seller’s rights in and to all improvements thereon
(“Leased Real Estate”);
(ii) all
furniture, fixtures and equipment that are located n or necessary
for the conduct of business in the ordinary course at any Branch
(including Automated Teller Machines (“ATMs”), if any,
and branch teller and platform automation equipment, if
any);
(iii) safe
deposit agreements relating to safe deposit boxes located at the
Branches;
(iv) all
loans (exclusive of any reserve for possible loan losses) that are
attributable to the Branches, including all loans made in the
ordinary course of business consistent with Seller’s credit
standards between the date of this Agreement and the Closing,
including all documents executed or delivered in connection with
any loan and any and all collateral relating to any such loan and
all rights in relation thereto
attributable to
the Branches at the Closing (the “Loans”) (unless the
Loans are rejected by Purchaser pursuant to Section 1.08(b)
hereof);
(v) all
rights of Seller under any service or similar contracts in effect
as of the Closing Date with non-affiliated third-party service
providers which relate solely to the operations of the Branches to
the extent such contracts are assignable;
(vi) all
cash on hand (i.e., all petty cash, vault cash, teller cash, ATM
cash, and prepaid postage) at the Branches as of the Closing;
and
(vii) all
prepaid expenses identified as an asset on the final closing
statement.
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(b)
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Liabilities. For purposes of this
Agreement, “Liabilities” shall mean all of
Seller’s obligations and liabilities of every type and
character relating to all deposit accounts, including accrued
interest, which are reflected on the books of Seller as of the
Closing and are attributable to the Branches, including, without
limitation, all passbook accounts, statement savings accounts,
checking, Money Market and NOW accounts, certificates of deposit,
individual retirement accounts, simplified employee pension
accounts, saving incentive match plan for employees accounts, Keogh
accounts, and repurchase agreements except for the Excluded
Deposits (the “Assumed Deposits”). Liabilities shall
also include:
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(i) all
obligations due under any service or similar contracts, in effect
at the Closing, relating to the operations of the Branches, to the
extent such contracts are included in 1.02(a)(v);
(ii) all
of Seller’s obligations and liabilities, arising from and
after the Closing Date, to the extent attributable to the Assets
and the Assumed Deposits; and
(iii) all
accrued and unpaid expenses identified as a liability on the final
closing statement.
1.03 Preliminary
Closing Statement and Payment.
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(a)
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Preliminary Closing Statement. Not
less than five (5) days prior to the Closing Date, Seller
shall deliver to Purchaser a proposed preliminary closing
statement, in the form of Schedule B to this Agreement, completed
as at a date mutually agreed to by the parties. The parties shall
agree upon the preliminary closing statement before the Closing
Date, and it shall be the basis of a preliminary payment to be made
to Purchaser’s account, or to Seller’s account, as the
case may be, on the Closing Date (the “Preliminary
Payment”).
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(b)
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Preliminary Payment. Subject to the
terms and conditions hereof, at the Closing, Seller shall wire
transfer to Purchaser immediately available funds equal to:
(i) the sum of (A) the amount of the Assumed Deposits
(including accrued and unpaid interest thereon) reflected on the
preliminary closing statement and (B) the amount of all
accrued and unpaid expenses reflected as a liability on the
preliminary closing statement; less (ii) an amount equal to the sum
of: (A) X.X% of the Assumed Deposits based on a 30-day average
prior to Closing; (provided, however, that for purposes of this
Section 1.03(b)(ii)(A), “Assumed Deposits” shall
not be deemed to include (1) any public funds or (2) any
amounts relating to repurchase agreements); (B) the amount of
cash on hand at the Branches as of the Closing; the Agreed Value of
all furniture, fixtures, and equipment constituting part of the
Assets; (D) the Agreed Value of the Owned Real Estate and the
Leased Real Estate; (E) the amount of all prepaid expenses of
Seller as reflected as an asset on the preliminary closing
statement; (F) the Net Book Value of all Loans, plus accrued
and unpaid interest thereon as reflected on the preliminary closing
statement; and (G) the amount of estimated sales taxes, if
any, to be paid by Purchaser in connection with the transaction
contemplated hereby.
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(c)
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Purchaser Payment. In the event that
the amount equal to subclause (b)(ii) above exceeds the amount
equal to subclause (b)(i) above, the amount of such excess shall
constitute an amount due from Purchaser to Seller and shall be paid
to Seller at the Closing.
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1.04 Final Closing
Statement and Adjustment Payment. Not more
than fifteen
(15) days after the Closing Date, Seller shall provide
Purchaser with a proposed final closing statement, which shall be
calculated as of the Closing Date and the parties shall promptly
agree upon the final closing statement. The final closing statement
shall be in a form consistent with the preliminary closing
statement. On the first business day after Purchaser agrees to the
final closing statement or Seller is notified of any determination
as to the final closing statement under Section 1.05 below,
Seller shall wire transfer to Purchaser (or Purchaser shall wire
transfer to Seller, as the case may be) in immediately available
funds an amount equal to the amount by which the final payment
reflected on the final closing statement indicates an amount in
excess of (or any amount less than) the Preliminary Payment paid at
Closing (the “Adjustment Payment”), plus interest, at a
rate per annum equal to the Federal Funds Rate.
1.05 Disputes and
Mediation; Payment of Fees. If Purchaser disagrees with the final
closing statement, then Purchaser shall contact Seller and
Purchaser and Seller shall cooperate to resolve the matters in
dispute. If the parties are unable to agree on a final closing
statement, then Purchaser or Seller may submit the matter to the
Mediator which shall determine all disputed portions of the final
closing statement; provided, however, that if the fees of the
Mediator as estimated by the Mediator would exceed 50% of the net
amount in dispute, the parties agree that such firm will not be
engaged by either party and that such net amount in dispute will be
equally apportioned between Seller and Purchaser. The parties shall
each pay one-half of the fees and expenses of the Mediator. The
final closing statement, as agreed upon by the parties and/or
determined under this subsection, shall be final and binding upon
the parties.
1.06 Proration of
Certain Expenses. All prepaid expenses and all accrued and unpaid
expenses shall be prorated between Purchaser and Seller as of the
Closing Date; provided, however, that (I) all property Taxes
as to the Owned Real Estate shall be prorated on the basis of the
most recently certified tax duplicate and rates; (ii) all real
property taxes and other expenses or charges required to be paid by
Seller as tenant
under any lease
pursuant to which Seller leases any of the Leased Real Property
(“Lease”) shall be prorated based upon amounts paid by
Seller
during the
current lease year as to any period that includes but extends after
the Closing Date; (iii) all utility payments paid (excluding
any such payment paid by Seller to a landlord, which shall be
covered by clause (ii) hereof) shall be prorated on the basis
of the best information available at the Closing Date. All security
deposits under any Lease, together with any accrued but unpaid
interest payable thereon, shall be credited to Seller. All prepaid
expenses that are allocable to Purchaser hereunder shall appear as
an asset on the preliminary or final closing statement. To the
extent that expenses allocable to Seller hereunder have been
accrued and not paid by Seller prior to the Closing Date, they
shall appear as a liability on the preliminary or final closing
statement. There shall be no post-closing adjustment for any of the
foregoing.
1.07 Allocation
and Reimbursement of Real Estate Expenses. All expenses
attributable to the Owned Real Estate and the Leasehold Estate
incurred in connection with the acquisition of the Branches by
Purchaser shall be allocated to and solely borne by Purchaser
except for standard title insurance commitment fees and title
examination fees for the Owned Real Estate which shall be paid by
Seller.
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(a)
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Loan Information. Prior to the date
hereof, Seller provided to Purchaser certain information relating
to the Loans to be transferred to Purchaser, which included, among
other data, summary information relating to loan
delinquencies.
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(b)
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Opportunity to Review and Reject
Loans. Following the date hereof, Purchaser shall be provided with
the opportunity to conduct a limited due diligence review of the
Loans for the purpose of determining whether Purchaser desires to
purchase the Loans in their entirety. Purchaser shall complete such
due diligence review within a period of fourteen (14) days
after the date upon which Purchaser is first provided access to
documentation relating to the Loans. Within seven (7) days
following the end of the fourteen (14) day period referred to
in the immediately preceding sentence, Purchaser shall notify
Seller as to whether Purchaser shall accept or reject the Loans,
provided however, that Purchaser shall only be permitted to accept
or reject all of the Loans other than overdraft lines directly
attributable to the Assumed Deposits. In the event that Purchaser
notifies Seller that it intends to reject the Loans, the payment
under Section 1.03(b) shall be calculated without giving
effect to any amounts described in (F) thereunder.
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(c)
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Loan Documentation. Seller shall
indemnify Purchaser for any and all losses which arise as a direct
result of the failure of Seller to have delivered to Purchaser all
necessary documentation with respect to any Loan, provided,
however, that Seller shall not be obligated to indemnify Purchaser
pursuant to this Section 1.08(c) in the event that Purchaser
shall not have notified Seller of the missing documentation within
sixty (60) days following the Closing. For purposes of this
provision, a “loss” shall mean a loss of the principal
balance of the affected Loan outstanding as of the Closing Date and
any interest accrued thereon.
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1.09 Successor
Custodian. Effective at the Closing, Seller hereby appoints
Purchaser as the successor custodian to Seller under the
Liabilities consisting of individual retirement accounts,
simplified employee pension accounts, saving incentive match plan
for employee accounts, and Keogh accounts and Purchaser hereby
accepts from Seller the appointment to serve in such capacity from
and after the Closing Date.
Obligations of the Parties Prior to
the Closing Date
2.01 Covenants of
Seller. Seller hereby covenants to Purchaser that, from the date
hereof until the Closing Date or by such earlier time as may be
specified in this Agreement, it will do or cause the following to
occur:
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(a)
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Operation of Branches. Seller shall
continue to operate and maintain the Branches in a manner
consistent with its customary practices and in a condition
substantially the same as exists on the date hereof (ordinary wear
and tear and casualty excepted).
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(b)
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Information Concerning Branches.
Seller shall use its reasonable efforts to furnish Purchaser, its
agents, or representatives reasonable access to, and permit
Purchaser to make or cause to be made such reasonable investigation
of, information and materials relating to the financial and
physical condition of the Branches as Purchaser reasonably deems
necessary or advisable; provided, further, that nothing in this
Section 2.01(b) shall be deemed to require Seller to breach any
obligation of confidentiality or to reveal any proprietary
information, trade secrets, or marketing or strategic
plans.
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(c)
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Creation of Encumbrances. Seller
shall not voluntarily create any Encumbrances affecting the Owned
Real Estate.
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(d)
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Insurance. Seller will maintain in
effect until and including the Closing Date all casualty and public
liability policies relating to the Branches and maintained by
Seller on the date hereof or procure comparable replacement
policies and maintain such replacement policies in effect until and
including the Closing Date.
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(e)
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Right to Intervene. In the event
that any claim, protest, suit or other proceeding is instituted
against Purchaser under this Agreement, Seller shall have the
right, at its discretion and expense, to intervene in such
litigation, and Purchaser hereby
consents to such intervention.
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(f)
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Retention of Certain Assets. Seller
shall retain all Assets as to which it has received notification
pursuant to Section 2.02(c) hereof and the Book Value of such
Assets shall not be included in the calculation of the Preliminary
Payment or the Adjustment Payment.
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2.02 Covenants of
Purchaser. Purchaser hereby covenants to Seller that, from the date
hereof until the Closing Date or by such earlier time as may be
specified in this Agreement, it will do or cause the following to
occur:
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(a)
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Certain Applications. Not later than
twenty-one (21) days after the date hereof, Purchaser shall
prepare and submit for filing, at no expense to Seller,
applications to all regulatory agencies required by Purchaser to
obtain the Regulatory Approvals. Purchaser shall promptly deliver
to Seller a copy of such applications and any supplement,
amendment, or item of additional information in connection
therewith. Purchaser shall also promptly deliver to Seller a copy
of each material notice, order, opinion, approval or denial and
other item of correspondence received by Purchaser from the
regulatory agencies and shall keep Seller promptly informed of
developments and progress with respect to such matters. Purchaser
hereby
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represents that it knows of no
reason why it should not obtain all Regulatory Approvals in a
timely manner.
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(b)
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Real Estate Lease Consents. In
connection with the consent and release noted in Section 2.03
hereof, Purchaser shall provide to Seller within five (5) days
after the date hereof current financial information concerning
Purchaser for Seller’s transmittal to the landlord under each
Lease and shall provide promptly to Seller any other information
requested by such landlord.
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(c)
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Notice Regarding Certain Assets. In
connection with the branch teller and platform automation equipment
described in Section 1.02(a)(ii) hereof, Purchaser shall notify
Seller, in writing, within forty-five (45) days of the date
hereof, of any such Assets that Purchaser shall not
purchase.
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2.03 Covenants of
Both Parties. Seller hereby covenants to Purchaser, and Purchaser
hereby covenants to Seller, that, from the date hereof until the
Closing, such party shall cooperate fully in obtaining, and make
all reasonable efforts to obtain, any third party consents which
are required to consummate the transaction contemplated by this
Agreement, including, without limitation, (a) an estoppel
certificate of each landlord in the form attached hereto as
Schedule G, if the landlord agrees to execute such estoppel
certificate, (b) the written consent of each landlord under a
Lease to the assignment and assumption by Purchaser of such Lease
or, if the landlord does not so consent, and if such consent is
necessary to validly effect such assignment or assumption or
sublease, to a sublease of the premises demised by such Lease, and
(c) in either case, the release of Seller from all obligations
and liabilities under any such Lease from and after the Closing
Date (provided, however, that this Section 2.03 shall not
obligate Seller to make any payment or to execute any
indemnification or guaranty or other similar instrument which would
render Seller liable for any obligations, liabilities or duties of
Purchaser arising out of such Lease from and after the Closing
Date). Each of Seller and Purchaser also hereby covenant to the
other that it shall cooperate fully in promptly selecting an
Appraiser and shall make all reasonable efforts to obtain an
Appraisal of the Owned Real Property and the Leasehold Estate
within thirty (30) days of the date hereof.
2.04
Seller’s and Purchaser’s Rights and Obligations
Regarding Title Matters.
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(a)
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Title Commitments. Seller, at its
sole expense, shall deliver to Purchaser not later than thirty
(30) days after the date hereof, with respect to the Owned
Real Estate, title commitments for issuance of ALTA Owner’s
Policies of Title Insurance (collectively, the “Title
Commitments” and individually, a
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Title Commitment”) issued not
earlier than thirty (30) days prior to the execution of this
Agreement and issued by a title insurance company authorized to do
business in the state in which the Owned Real Estate is located
designated by Seller (the “Title Company”).
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(b)
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Surveys. For thirty (30) days
from the date hereof, Purchaser shall have the right, but not the
obligation, to obtain, at Purchaser’s sole cost and expense,
(i) surveys as to any or all of the Owned Real Estate or the
Leasehold Estate and (ii) title commitments for issuance of
ALTA Leasehold Policies of Title Insurance as to the Leasehold
Estate from the Title Company (“Leasehold Title
Commitment”). Purchaser shall cause a true and complete copy
of each survey to be promptly delivered to Seller and to the Title
Company. Purchaser shall cause a true and complete copy of each
Leasehold Title Commitment to be promptly delivered to
Seller.
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(c)
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Title Defects. (i) Ten
(10) days after receipt by Purchaser of an original Title
Commitment or any survey or Leasehold Title Commitment obtained
pursuant to Section 2.04(b) hereof, Purchaser shall give
Seller and the Title Company written notice of any defect(s)
disclosed in such Title Commitment, survey or Leasehold Title
Commitment that: (w) is (are) not included in the
exceptions specifically identified on the Title Commitment or
Leasehold Title Commitment; (x) is(are) not included in
clauses (a)-(d) of the definition of Permitted Exceptions related
to the applicable Owned Real Estate or Leased Real Estate;
(y) that materially adversely affect(s) the business of the
Branch situated upon such Owned Real Estate or Leased
Real
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Estate; and (z) which Purchaser
does not approve. Failure of Purchaser to provide such notice on a
timely basis shall constitute a waiver by Purchaser of any
matter(s) disclosed in such Title Commitment, survey or Leasehold
Title Commitment and thereupon such matter(s) shall be deemed
included in clause (b) of the definition of Permitted Exceptions
set forth in this Agreement.
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(ii)
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If
the notice referred to in (i) above is timely given by
Purchaser, Seller shall, within ten (10) days of such notice,
notify Purchaser and the Title Company as to whether Seller shall
cure or remove any defect(s). Following Seller’s notice to
Purchaser and the Title Company that Seller elects not to cure any
defect(s), Purchaser must elect, within five (5) days, as its
sole remedy hereunder with respect to such defect(s), to terminate
this Agreement as to the Assets and Liabilities attributable to the
Branch situated upon the affected Owned Real Estate and/or Leased
Real Estate. Purchaser’s failure to make such an election
shall be deemed to be a waiver of such defect(s) and such defect(s)
shall be included in the Permitted Exceptions and shown as
Permitted Exceptions in the deed and the title policy relating to
such Owned Real Estate or Leasehold Estate.
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(iii)
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Seller shall cause the Title Company
to update the Title Commitments and Purchaser may, at its sole cost
and expense, cause the Title Company to update Leasehold Title
Commitments, as of the business day prior to the Closing Date. In
the event that the updated Title Commitment or Leasehold Title
Commitment as to any Owned Real Estate or Leasehold Estate
discloses any defect(s) not included in the original Title
Commitment, survey or Leasehold Title Commitment, the procedure set
forth in (ii) above shall apply.
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Representations and
Warranties
3.01
Representations and Warranties of Seller. Seller represents and
warrants to Purchaser as follows:
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(a)
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Corporate Organization and
Authority. Seller is a national banking association duly organized,
validly existing, and in good standing under the laws of the United
States of America with corporate power to carry on its business as
presently conducted at the Branches. Seller is an insured bank, as
defined in the Federal Deposit Insurance Act and applicable
regulations thereunder (“FDIA”). Seller is a member of
the Bank Insurance Fund of the FDIC (“BIF”) and pays
deposit insurance assessments to BIF and the Savings Association
Insurance Fund. Seller is in compliance in all material respects
with all applicable fair lending laws, rules and regulations,
including without limitation the Community Reinvestment Act of
1977, as amended. Seller has all requisite corporate power and
authority and has taken all corporate action necessary to execute
and deliver this Agreement and to consummate the transaction
contemplated hereby, and this Agreement is a valid and binding
obligation of Seller in accordance with its terms subject, as to
enforcement, to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditor’s rights
generally, whether applied at law or equity, and to general equity
principals.
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(b)
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Effective Agreement. Subject to the
receipt of any and all Regulatory Approvals and required third
party consents, the execution, delivery, and performance of this
Agreement by Seller and the consummation of the transaction
contemplated hereby, will not conflict with, result in the breach
of, constitute a violation or default, result in the acceleration
of payment or other obligations, or create an Encumbrance, under
any of the provisions of the Charter or By-Laws of Seller, under
any judgment, decree, or order, under any law, rule, or regulation
of any government or agency thereof, or under any material contract
or instrument to which Seller is subject, where such conflict,
breach, violation, default, acceleration, or Encumbrance would have
a material adverse effect on the business of any Branch or
Seller’s ability to perform its obligations
hereunder.
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(c)
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Individual Retirement Accounts. The
Individual Retirement Custodial Account Agreement (i.e. Internal
Revenue Service Model Form 5305-A with certain supplementary
provisions) used at the Branches materially meets the criteria for
the establishment of an “individual retirement account”
as specified in Section
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408(a) of the
Code in all material respects.
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(d)
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Simplified Employee Pension
Accounts. The Simplified Employee Pension — Individual
Retirement Account Agreement (i.e. Internal Revenue Service Model
Form 5305-SEp with certain supplementary provisions) and the Salary
Reduction and Other Elective Simplified Employee Pension —
Individual Retirement Account Agreement (i.e. Internal Revenue
Service Model Form 5305A-SEP with certain supplementary provisions)
used at the Branches materially meets the criteria for the
establishment of a “simplified employee pension” as
specified in Section 408(k) of the Code in all material
respects.
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(e)
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Saving Incentive Match Plan for
Employees Accounts. The Saving Incentive Match Plan for Employees
of Small Employers Agreement (i.e. Internal Revenue Service Model
Form 5305-SIMPLE with certain supplementary provisions) used at the
Branches materially meets the criteria for the establishment of a
“saving incentive match plan for employees” as
specified in Section 408(p) of the Code in all material
respects.
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(f)
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Keogh Accounts. The custodial
agreement for the retirement plan for self-employed individuals
used at the Branches materially meets the criteria for the
establishment of a “Keogh plan” as specified in Section
401(a) and Section 401(c) of the Code in all material
respects.
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(g)
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No
Broker. No broker or finder, or other party or agent performing
similar functions, has been retained by Seller or is entitled to be
paid based upon any agreements, arrangements, or understandings
made by Seller in connection with the transaction contemplated
hereby, and no brokerage fee or other commission has been agreed to
be paid by Seller on account of such transaction.
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(h)
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Environmental. Seller makes the
representations and warranties to Purchaser set forth in
Section 10.01 hereof.
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(i)
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Assets. The fixed Assets material to
the operations of each of the Branches are in adequate working
condition for the conduct
of the business at each of the Branches currently conducted by
Seller except for ordinary wear and tear.
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(j)
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Deposits. All of the Assumed
Deposits have been administered and, to Seller’s knowledge,
originated, in material compliance with the documents governing the
relevant type of deposit account and all applicable laws. The
Assumed Deposits are insured by the Bank Insurance Fund or the
Savings Association Insurance Fund of the FDIC up to the current
applicable maximum limits, and no action is pending or, to
Seller’s knowledge, threatened by the FDIC with respect to
the termination of such insurance.
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(k)
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Limitation of Warranties. Except as
otherwise specifically provided for in this Agreement, Seller makes
no representations or warranties whatsoever with respect to the
Assets or the Liabilities, express or implied, including, without
limitation, any warranties with respect to merchantability,
fitness, title, enforceability, collectibility, documentation or
freedom from liens or encumbrances (in whole or in
part).
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3.02
Representations and Warranties of Purchaser. Purchaser represents
and warrants to Seller as follows:
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(a)
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Corporate Organization, Authority
and Compliance. Purchaser is a national bank duly organized,
validly existing, and in good standing under the laws of the United
States of America with corporate power to own its properties and to
carry on its business as presently conducted, except where the
failure of Purchaser to have such corporate power would not have a
material adverse effect on the ability of Purchaser to perform its
obligations hereunder. Purchaser is an insured bank, as defined in
the FDIA. Purchaser has all requisite corporate power and authority
and has taken all corporate action necessary to execute and deliver
this Agreement and to consummate the transaction contemplated
hereby, and this Agreement is a valid and binding obligation of
Purchaser in accordance with its terms subject, as to enforcement,
to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditor’s rights generally, whether applied at law
or equity, and to general equity principals. Purchaser is in
compliance with all applicable fair lending laws, rules and
regulations including but not limited to the Community Reinvestment
Act of 1977, as
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amended.
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(b)
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Effective Agreement. Subject to the
receipt of any and all Regulatory Approvals and required third
party consents, the execution, delivery, and performance of this
Agreement by Purchaser and the consummation of the transaction
contemplated hereby, will not conflict with, result in the breach
of, constitute a violation or default, result in the acceleration
of payment or other obligations, or create an Encumbrance, under
any of the provisions of the Articles of Association or By-Laws of
Purchaser, under any judgment, decree, or order, under any law,
rule, or regulation of any government or agency thereof, or under
any material contract or instrument to which Purchaser is subject,
where such conflict, breach, violation, default, acceleration, or
lien would have a material adverse effect on Purchaser’s
ability to perform its obligations hereunder.
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(c)
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No
Broker. No broker or finder, or other party or agent performing
similar functions, except Austin Associates, Inc., has been
retained by Purchaser or is entitled to be paid based upon any
agreements, arrangements, or understandings made by Purchaser in
connection with the transaction contemplated hereby, and no
brokerage fee or other commission has been agreed to be paid by
Purchaser on account of such transaction.
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(d)
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Regulatory Matters. (i) Except
as previously disclosed in writing to Seller, there are no pending,
or, to Purchaser’s knowledge, threatened or contemplated,
disputes or controversies (including any written o
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