PURCHASE AND ASSUMPTION AGREEMENT

(a)           The real estate owned in fee by the Seller and buildings or other improvements thereon that are used for the Branches and described in Schedule 1 (the “ Premises ”);

(b)           All of the personal property of Seller located in the Branches consisting of the furniture, trade fixtures, equipment, shelving, on-premises ATMs, security systems, safe deposit boxes (including keys, but exclusive of contents), vaults, telephone numbers, sign structures (exclusive of signage containing any trade name, trademark or service mark, if any of Seller), supplies (excluding any items consumed or disposed of, but including new items acquired or obtained, in the ordinary course of the operation of the Branches through the Closing Date) (collectively, the “ Personal Property ”).  The Personal Property is set forth in Schedule 2 and shall be updated as of the Closing Date;

(c)           All vault and teller cash, petty cash, on-premises ATM cash, coin on hand and cash equivalents held at the Branches (collectively, the “ Cash on Hand ”);

(d)           The security deposits on the Branch Leases (“ Premises Security Deposits ”);

(e)           Prepaid expenses, including rents and utilities, as set forth on Schedule 3 , which Schedule 3 shall be updated as of the Closing Date (the “ Prepaid Expenses ”);

(f)           The Loans,   including Accrued Interest,   the collateral for the Loans, the Loan Files and Loan Documents and all servicing rights related to such Loans pursuant to Section 15(b);

(g)           The Branch Leases, Personal Property leases, licenses, contracts and other agreements identified on Schedule 5 that relate to the Branches (“ Assigned Contracts ”);

(h)           The Safe Deposit Agreements;

(i)            the Records;

(j)           The rights of action and claims related to the Assets, except to the extent exclusively relating to Excluded Liabilities; and

(k)           The Additional Assets (as defined below), if any.

(a)           Subject to satisfaction of the terms and conditions hereof, including the transfer of the Assets to Buyer, as of and after the Closing, Buyer will pay, perform, and assume the following liabilities of Seller and will perform the following duties, responsibilities and obligations of Seller that are to be paid or performed from and after the Closing Date:

(1)          the Deposit Liabilities, including IRA and Keogh Accounts to the extent contemplated by Section 2(c);

(2)           the Assigned Contracts, if such Assigned Contracts are actually assigned to Buyer in accordance with their terms;

(3)          Funding commitments under the Loans, including, Unfunded Advances, and the servicing of the Loans;

(4)          The Safe Deposit Agreements;

(5)          The accrued liabilities, if any, described in Schedule 2(a)(6) (the “ Accrued Liabilities ”);

(6)          The obligations assumed by Buyer under Section 16(m) of this Agreement, which under no circumstance shall include any liability or obligation for any employment, change-in-control or other severance agreement or any payments under any Seller or Seller Parent Employee Benefit Plan, including, but not limited to, bonus or incentive programs; and

(7)          Taxes Buyer is responsible for under Section 21 and any taxes with respect to the Assets or the Branches for any taxable period (or portion thereof) that begins after the Closing Date.

The foregoing liabilities set forth in (1) through (8) only will be referred to collectively as the “ Liabilities .”

(b)           Notwithstanding anything to the contrary in this Agreement, other than the Liabilities, which Buyer is expressly assuming pursuant to this Agreement, Buyer shall not assume or be bound by any duties, responsibilities, obligations or liabilities of Seller, or of any of its Affiliates, of any kind or nature, known, unknown, contingent or otherwise, including, without limitation, (i) those attributable to any acts or omissions to act taken or omitted to be taken by Seller (or any of its Affiliates) prior to the Closing Date and any Legal Proceedings that arise as a result thereof; (ii) for any Seller or Seller Parent tax liability except as provided herein; (iii) any obligation of Seller to indemnify any Person; (iv) for any liability of Seller or any Affiliate under this Agreement; (v) relating or arising out of any deposit excluded under the definition of Deposit Liabilities; (vi) those having to do with or related to the employment or other similar relationship between Seller and Seller Parent on the one hand and their current, former or prospective employees, officers, directors, consultants and other agents, on the other hand, including, but not limited to, those relating to termination of employment or refusal to hire, termination or severance payments, and compensation, and those occurring under or related to any Employee Benefit Plan of Seller or any of its ERISA Affiliates, and (vii) those arising from circumstances, events or conditions prior to the Closing Date and not expressly assumed hereunder (collectively the “ Excluded Liabilities ”).

(c)

(1)          With respect to Deposit Liabilities in IRAs, Seller will use its reasonable best efforts to cooperate with Buyer in taking any action reasonably necessary to accomplish either the appointment of Buyer as successor custodian or the delegation to Buyer (or to an Affiliate of Buyer) of Seller’s authority and responsibility as custodian of all such IRAs, including, but not limited to, sending to the depositors thereof appropriate notices, cooperating with Buyer in soliciting consents from such depositors, and filing any appropriate applications with applicable regulatory authorities. If, notwithstanding the foregoing, as of the Closing Date, Buyer shall be unable to retain Deposit Liabilities in respect of an IRA, such Deposit Liabilities shall be deemed to be an “Excluded Liability” for purposes of this Agreement.

(2)          With respect to Deposit Liabilities in Keogh Accounts, Seller will use reasonable best efforts to cooperate with Buyer to invite depositors thereof to direct a transfer of each such depositor’s Keogh Account and the related Deposit Liabilities to Buyer, as trustee thereof, and to adopt Buyer’s form of Keogh Master Plan as a successor to that of Seller.  Buyer will assume no Keogh Accounts unless Buyer has received to its satisfaction the documents necessary for such assumption at or before the Closing.

(a)            Purchase Price .  Subject to Section 1 (with respect to Additional Assets and Excluded Loans), Section 2(a)(2), Section 3(b) and Section 3(d), the purchase price of the Assets (the “ Purchase Price ”) will be an amount equal to the sum of the following:

(1)          The aggregate amount of the Net Book Value of the Premises as of the last day of the month end immediately preceding the Closing Date;

(2)          The aggregate amount of the Net Book Value of the Personal Property as of the last day of the month end immediately preceding the Closing Date;

(3)          The aggregate amount of the Cash on Hand on the Closing Date;

(4)          The aggregate amount of the Premises Security Deposits;

(5)          The aggregate amount of the Prepaid Expenses as of the Closing Date;

(6)          The aggregate unpaid principal amount of the Loans, plus the aggregate amount of Accrued Interest,   on the Closing Date;

(7)          The aggregate amount agreed upon by Seller and Buyer for the Additional Assets, if any; plus

(8)          The Premium.

(b)            Adjustments of Purchase Price .

(1)          Solely for purposes of facilitating the calculation of the cash due Buyer or Seller, as applicable, on the Closing Date, Seller shall provide to Buyer, five (5) Business Days before the Closing Date, the Draft Closing Statement.

(2)          On or before 12:00 noon E.D.T. on the thirtieth (30th) calendar day following the Closing Date (the “ Adjustment Date ”), Seller shall deliver to Buyer the Final Closing Statement and Seller shall make available to Buyer such work papers, schedules and other supporting data used to calculate and prepare the Final Closing Statement and as may be requested by Buyer to enable Buyer to verify such determinations set forth in the Final Closing Statement.

(3)          If, within forty-five (45) calendar days following the date of receipt by Buyer of the Final Closing Statement, Buyer does not dispute any items contained in the Final Closing Statement or omitted therefrom, then the Final Closing Statement shall be final and binding upon the parties. In the event that Buyer disputes any items contained in the Final Closing Statement or omitted therefrom, such disputes shall be resolved in the following manner:

(A)           Buyer shall notify Seller, in writing (the “ Notice of Disagreement ”) of such dispute within forty-five (45) calendar days after Buyer’s receipt of the Final Closing Statement, which notice shall specify in reasonable detail the nature of the dispute, indicating those specific items that are in dispute (the “ Disputed Items ”).  To the extent that Buyer provides a Notice of Disagreement within such 45-day period, all items that are not Disputed Items shall be final, binding and conclusive for all purposes hereunder.

(B)           During the 30-day period following Seller’s receipt of a Notice of Disagreement from Buyer, Seller and Buyer shall use commercially reasonable efforts to resolve any Disputed Items.  If, at the end of such 30-day period, the parties have reached written agreement with respect to all matters covered by a Notice of Disagreement, the Final Closing Statement shall be adjusted to reflect such written agreement and shall become final and binding upon the parties hereto.

(C)           If, at the end of the 30-day period specified in subsection (b)(3)(B) above, Buyer and Seller shall have failed to reach a written agreement with respect to all or a portion of such Disputed Items (those Disputed Items that remain in dispute at the end of such period are the “ Unresolved Changes ”), then Buyer and Seller shall promptly refer only those Unresolved Changes to a mutually agreeable nationally recognized independent certified public accounting firm (the “ Firm ”) to make a determination as to the subject matter of the Unresolved Changes.  If Buyer and Seller fail to agree on a Firm within thirty (30) days after the end of the 30-day period specified in subsection (b)(3)(B) above, the Firm shall be selected by the American Arbitration Association.  The Firm shall be directed to issue its written decision as promptly as practicable and in any event within thirty (30) days following the submission of the Unresolved Changes to the Firm for resolution, and such decision shall be final, binding and conclusive on the parties (the “ Firm Determination ”).  Seller and Buyer agree to fully cooperate with and provide any information requested by such Firm.  In the event Unresolved Changes are submitted to the Firm for resolution as provided herein, the fees, charges and expenses of the Firm (the “ Firm Expenses ”) shall be borne and paid equally by Buyer and Seller .   As used in this subsection (C), “ Disputed Amount ” means the difference between Buyer’s and Seller’s respective calculations of the Unresolved Changes and “Firm Determination” means the amount with respect to the Unresolved Changes determined by the Firm in accordance with this subsection (C).

(4)          On or before 12:00 noon E.D.T. on the fifth (5th) Business Day after the Adjusted Payment Amount shall have become final and binding or, in the case of a dispute, the date of the resolution of the dispute pursuant to subsection 3(b)(3) above, if the Adjusted Payment Amount is greater than the Estimated Payment Amount then Seller shall pay to Buyer an amount in dollars equal to such excess, plus interest on such excess amount from the Closing Date to but excluding the payment date, at the Federal Funds Rate, or if the Adjusted Payment Amount is less than the Estimated Payment Amount Buyer shall pay to Seller an amount in dollars equal to such shortfall,  plus interest on such shortfall from the Closing Date to but excluding the payment date, at the Federal Funds Rate. If a payment is owed to Buyer pursuant to this Section 3(b)(4), such payment shall be effected by wire transfer of immediately available funds from Seller or Seller Parent to an account designated in writing by the Buyer within five (5) Business Days after the determination thereof.

(c)            Allocation of the Purchase Price .

(1)          Buyer shall prepare a proposed allocation of the Purchase Price among the Assets in accordance with Section 1060 of the Code, which proposed allocation shall be delivered to Seller for review and comment within sixty (60) days following the Closing Date (“ Proposed Allocation Statement ”).  Seller shall provide to Buyer in writing within ten (10) days of the receipt of such Proposed Allocation Statement any objections thereto.

(2)          If, within ten (10) days following the receipt of the Proposed Allocation Statement, Seller does not dispute any items contained in the Proposed Allocation Statement, then the Proposed Allocation Statement shall be final and binding upon the parties (“ Final Allocation Determination ”).  In the event that Seller disputes any items contained in the Proposed Allocation Statement, such disputes shall be resolved in the following manner:

(3)          Buyer and Seller and their Affiliates shall file all tax returns (including, but not limited to, Internal Revenue Service Form 8594) in all respects and for all purposes consistent with such Final Allocation Determination. Seller shall use commercially reasonably efforts to deliver to Buyer all such documents and other information as Buyer may reasonably request in order to prepare the Proposed Allocation Statement contemplated by subsection 3(c)(1) above and any tax returns for taxable periods beginning on or after the Closing Date.  No party shall take any position (whether in audits, tax returns or otherwise) which is inconsistent with such Final Allocation Determination unless required to do so by applicable Legal Requirement.

(d)            Proration; Other Closing Date Adjustments .

(1)          Except as otherwise specifically provided in this Agreement, it is the intention of the parties that Seller will operate the Branches for its own account until 11:59 p.m., E.D.T., on the Closing Date, and that Buyer shall operate the Branches, hold the Assets and assume the Liabilities for its own account after the Closing Date.  Thus, except as otherwise specifically provided in this Agreement, items of income and expense, as defined herein, shall be prorated as of 11:59 p.m., E.D.T, on the Closing Date, and settled between Seller and Buyer on the Closing Date, whether or not such adjustment would normally be made as of such time.  Items of proration will be handled at Closing as an adjustment to the Purchase Price unless otherwise agreed by the parties hereto.

(2)          For purposes of this Agreement, items of proration and other adjustments shall include:  (i) rental payments under the Branch Lease; (ii) personal and real property taxes and assessments; (iii) other prepaid expenses and items and accrued but unpaid liabilities, as of the close of business on the Closing Date; and (iv) safe deposit rental payments previously received by Seller.

(a)           At Closing, (i) if the Estimated Payment Amount as set forth on the Draft Closing Statement is a positive amount, Seller shall pay to Buyer an amount in dollars equal to such positive amount, or (ii) if the Estimated Payment Amount as set forth on the Draft Closing Statement is a negative amount, Buyer shall pay to Seller an amount in dollars equal to the absolute value of such negative amount.

(b)           All payments to be made hereunder by one party to the other shall be made by wire transfer of immediately available funds (to such account as the appropriate party shall advise not later than two (2) Business Days prior to the Closing Date) on or before 12:00 noon E.D.T on the date of payment.

(c)           If any instrument of transfer contemplated herein shall be recorded in any public record before the Closing and thereafter the Closing does not occur, then at the request of such transferring party the other party will deliver (or execute and deliver) such instruments and take such other action as such transferring party shall reasonably request to revoke such purported transfer.

(a)           The consummation of the transactions contemplated under this Agreement (the “ Closing ”) will take place as soon as reasonably practicable, following the satisfaction, or where legally permitted, the waiver of conditions set forth in Section 6, the receipt by Seller of the Required Consents, the receipt by Buyer of all Regulatory Approvals, and expiration of applicable statutory waiting periods, but in no event later than July 31, 2009 or such later date as may be mutually agreed to by the Parties (the “ Closing Date ”);

(b)           The Closing will held at Buyer’s offices at 4000 Smith Road, Suite 400, Cincinnati, Ohio 45209, or such other place as may be agreed to by the parties.

(c)           Unless the parties agree pursuant to Section 16(b) that the conversion of the data processing with respect to the Branches and the Assets and Liabilities will be performed other than on the weekend immediately following the Closing Date, the Closing Date shall be on a Friday and the conversion will be completed prior to the opening of business on the following Monday.

(a)           At Closing, Seller shall deliver to Buyer the following:

(1)          The deeds and all other instruments of conveyance as may be necessary to sell, transfer and convey all right, title and interest in and to the Premises to Buyer;

(2)          A bill of sale in substantially the form of Exhibit A attached hereto pursuant to which the Personal Property shall be transferred to Buyer;

(3)          Subject to Section 19, a lease assignment and assumption agreement in substantially the form of Exhibit B attached hereto, with respect to the Branch Lease (the “ Lease Assignment ”);

(4)          The Assigned Contracts, Required Consents and other written agreements, contracts, leases and other documentation that relate to the Assets and Liabilities and the Safe Deposit Agreements;

(5)          Written confirmation that the Waiver, Acquiescence and Consent Agreement has been received and remains in full force and effect;

(6)          Possession of the Loan Files and Loan Documents and the collateral security held by Seller as security for any Loan as provided for in Section 6(c);

(7)          Certified copies of resolutions of (i) Seller’s board of directors and its sole stockholder, Seller Parent, authorizing the execution and delivery of this Agreement and the transactions set forth in this Agreement and (ii) Seller Parent’s board of directors authorizing the execution and delivery of this Agreement and the consummation of the transactions set forth in this Agreement;

(8)          Copies of the Records;

(9)          Such instruments of assumption of Liabilities as are required to effectively assign and transfer the obligations for the Liabilities to the Buyer and for Buyer to assume those Liabilities as provided herein, including, without limitation, an assignment and assumption agreement in substantially the form set forth on Exhibit C attached hereto with respect to the Liabilities, duly executed by Seller (the “ Assignment and Assumption Agreement ”);

(10)                    A bring-down of the Schedules of Assets and Liabilities and the Seller Disclosure Schedule;

(11)                    Seller’s resignation as trustee or custodian, as applicable, with respect to each IRA and/or Keogh Accounts, which is part of the Deposit Liabilities and designation of Buyer as successor trustee or custodian with respect thereto, as contemplated by Sections 2(c);

(12)                    The certificate of Seller’s President required by Section 8(g);

(13)                    The Draft Closing Statement (which shall have been furnished to Buyer no later than the fifth Business Day prior to the Closing Date);

(14)                    Original or copy of the Branch Lease fully executed by each party thereto;

(15)                    Executed consent of the landlord necessary to assign the Branch Lease to Buyer, subject to Section 19 hereof;

(16)                    An ALTA form of owner policy of title insurance issued by Title Company for the Premises, naming Buyer as insured having an effective date as of the Closing Date, in form and substance in accordance with Section 16(q);

(17)                    A certification of non-foreign status meeting the requirements of Treasury Regulation 1.1445-2(b)(2), duly executed and acknowledged substantially in the form of the sample certificates set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv);

(18)                    Cash On Hand;

(19)                    Estimated Payment Amount, if any;

(20)                    A complete set of keys for each Branch, including but not limited to keys for safe deposit boxes, vaults and automated teller machines and combinations for all combination locks, appropriately tagged for identification and any vault manuals or specifications with respect to vaults and automated teller machines, together with a schedule listing same; and

(21)                    Such other documents as the parties may determine are reasonably necessary to consummate the transactions contemplated hereby.

(b)           At the Closing, Buyer will deliver to Seller the following:

(1)          Certified copies of resolutions of Buyer’s board of directors authorizing the execution and delivery of this Agreement and the consummation of the transactions set forth in this Agreement;

(2)          Such instruments of assumption of Liabilities as are required to effectively assign and transfer the obligations for the Liabilities to the Buyer and for Buyer to assume those Liabilities as provided herein, including, without limitation, the Assignment and Assumption Agreement, duly executed by Buyer;

(3)          The certificate of Buyer’s Chief Executive Officer and President as required by Section 7(f);

(4)          Evidence of the Regulatory Approvals and the satisfaction of all required conditions of such Regulatory Approvals;

(5)          Buyer’s acceptance of its appointment as successor trustee or custodian, as applicable, of the IRA and/or Keogh Accounts, which are part of the Deposit Liabilities and the assumption of the fiduciary obligations of the trustee or custodian with respect thereto, as contemplated by Sections 2(c);

(6)          the Estimated Payment Amount, if any; and

(7)          Such other documents as the parties may determine are reasonably necessary to consummate the transactions contemplated hereby.

(c)            Loan Documents and Loan Files .

(1)          Not later than 24 hours following the Closing Date, Seller shall deliver to Buyer or its designee the Loan Files and Loan Documents (reasonably organized and cataloged), in the medium (including imaged documents) then maintained by Seller. Seller shall have no responsibility or liability for the Loan Files and Loan Documents from and after the time such files are delivered by Seller to Buyer or to an independent third party designated by Buyer for shipment to Buyer, the cost of which shall be the sole responsibility of Seller.

(2)          Promptly upon execution of this Agreement, Buyer shall provide Seller in writing with the exact name to which the Loans are to be endorsed, or whether any Loans should be endorsed in blank. Seller will use its reasonable best efforts to complete such endorsements and deliver the Loan Documents, along with appropriate assignments of real property security instruments in recordable form and assignments of financing statements, at the Closing.

(d)            Collateral Assignments and Filing . Seller shall take all such reasonable actions as requested by Buyer to assist Buyer in obtaining the valid perfection of a lien or security interest in the collateral, if any, securing each Loan sold on the Closing Date in favor of Buyer or its designated assignee as secured party. Any such action shall be at the sole expense of Buyer, and Buyer shall reimburse Seller for all reasonable third party costs incurred in connection therewith.

(e)            Power of Attorney .   Seller shall executed and deliver to Buyer powers of attorney or other instrument satisfactory to Buyer’s counsel authorizing Buyer and its representatives to file or record assignments of collateral security and endorse in Seller’s name any checks, drafts, notes or other documents received in payment of the Loans after the Closing.

(f)            Premises Filings . On the Closing Date, Seller and Buyer shall file or record, or cause to be filed or recorded, any and all documents necessary in order that the legal and equitable title to Premises as provided herein be duly vested in Buyer.

(a)           The Regulatory Approvals shall have been made or obtained and shall remain in full force and effect, and all statutory waiting periods applicable to the transactions contemplated hereby shall have expired or terminated;

(b)           Buyer shall have duly and timely performed its covenants and agreements herein on or prior to the Closing Date in all material respects;

(c)           Each of the representations and warranties of Buyer contained or referred to in this Agreement that are qualified as to materiality shall be true and correct and any such representations and warranties that are not so qualified shall be true and correct in all material respects, in each case, at the Closing as though made at Closing (except to the extent such representations and warranties speak of an earlier date);

(d)           No Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any Legal Requirement or Order (whether temporary, preliminary or permanent) which is in effect and which prohibits or makes illegal, or materially restricts, the consummation of the transactions contemplated by this Agreement or materially alters the terms of this Agreement;

(e)           No Legal Proceedings shall have been instituted against Buyer or Seller where the determination of liability against such party would reasonably be expected to have a Material Adverse Effect or a material and adverse effect on the ability of such party to consummate the transactions contemplated by this Agreement; and

(f)           There shall have been delivered to Seller a certificate confirming items (a)-(c) above, dated as of the Closing Date, and signed on behalf of the Buyer by its Chief Executive Officer and President.

(a)           The Regulatory Approvals shall have been made or obtained and shall remain in full force and effect, and all statutory waiting periods applicable to the transactions contemplated hereby shall have expired or terminated, and no such Regulatory Approval shall have resulted in the imposition of a Materially Burdensome Regulatory Condition;

(b)           Seller shall have duly and timely performed its covenants and agreements herein on or prior to the Closing Date in all material respects;

(c)           Each of the representations and warranties of Seller contained or referred to in this Agreement that are qualified as to materiality shall be true and correct and any such representations and warranties that are not so qualified shall be true and correct in all material respects, in each case, at the Closing as though made at the Closing (except to the extent such representations and warranties speak of an earlier date);

(d)           No Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any Legal Requirement or Order (whether temporary, preliminary or permanent) which is in effect and which prohibits or makes illegal, or materially impacts, the consummation of the transactions contemplated by this Agreement or materially alters the terms of this Agreement;

(e)           No Legal Proceedings shall have been instituted against Buyer or Seller where the determination of liability against such party would reasonably be expected to have a Material Adverse Effect or a material and adverse effect on the ability of such party to consummate the transactions contemplated by this Agreement;

(f)           There shall have been delivered to Buyer a certificate confirming items (a)-(c) above, dated as of the Closing Date, and signed on behalf of the Seller by its President;

(g)

(1)          Buyer shall have obtained a Phase I Environmental Site Assessment report (“ Buyer’s Phase I Report ”), which shall be at Buyer's expense, prepared after the date hereof.  Buyer shall report to Seller the results of the Buyer’s Phase I Report, together with any objections (an “ Objection ”) to any matter (other than information made available to Buyer by Seller prior to the date of this Agreement) that Buyer believes in its reasonable discretion could be a violation of any Environmental Law that (i) materially and adversely affect Buyer's continued use of the Premises for the purpose of operating the relevant Branch, or (ii) has a Material Adverse Effect on Buyer.   Buyer shall provide the report together with any Objections to Seller no later than forty-five calendar days after the date of this Agreement.  If Buyer raises any Objections, Seller and Buyer shall address such Objection as set forth in subsection (2) below.

(2)          If Buyer discovers any Objections that would, individually or in the aggregate, require the expenditure of $100,000 or more to remediate, as determined by Buyer in its reasonable discretion, Buyer shall promptly give written notice thereof to Seller describing the Objection or Objections in detail and Seller shall have the obligation to pay up to the sum of $100,000 to cure such Objection(s) prior to the Closing, if cure is reasonably possible.  If Seller is unable or unwilling to cure any such Objection to Buyer’s reasonable satisfaction, then in Buyer’s sole and absolute discretion, and upon written notice to Seller, such notice to be received by Seller no later than ten (10) calendar days after Buyer is notified in writing of Seller’s inability or unwillingness to cure any such Objection: (a) Buyer shall receive title or a leasehold interest in the Premises or Branch Lease, respectively, in their then existing condition with a corresponding adjustment to Purchase Price that is mutually agreeable to both parties, provided, that any such adjustment to Purchase Price shall not exceed $100,000, or (b) Buyer may terminate this Agreement, or (c) Seller shall keep title to the Premises related to such Objection(s) and Buyer may lease such Premises from Seller on terms mutually agreeable to both parties with a corresponding mutually agreeable adjustment to the Purchase Price.

(h)           All Title Objections shall have been cured, waived by Buyer or become an Insured Exception, in each case, as contemplated by Section 16(q) ; and

(i)          Seller shall have delivered the closing deliverables set forth in Section 6(a) .

(a)            Corporate Organization .  Seller is a federal savings association duly organized and validly existing in good standing under the laws of the United States of America, and is entitled to own its properties where such properties are now owned and operated and has the requisite power and authority to conduct its business as now being conducted at the Branches. Seller is an insured depository institution pursuant to the provisions of the Federal Deposit Insurance Act, as amended, and, other than as set forth in the Cease and Desist Order, the Amended Order, the FDIC Resolution and the OTS Regulatory Letter, no act or default has occurred.

(b)            Financial Statements; Thrift Reports .  The Seller has previously provided or, as applicable, will provide, to Buyer true, correct and complete copies of:

(1)          The audited consolidated balance sheets of Seller and Seller Parent as of December 31, 2008 and 2007 and the related audited consolidated statements of operations, stockholders’ equity and comprehensive income (loss) and cash flows for the years ended December 31, 2008   and 2007, inclusive (collectively the “ Audited Financial Statements ”), accompanied by the audit report of Plante & Moran PLLC with respect to 2008 and BKD, LLP with respect to 2007;

(2)          The unaudited consolidated balance sheets of Seller and Seller Parent as of March 31, 2009 and the related unaudited consolidated statements of operations, stockholders' equity and comprehensive income (loss) and cash flows for the period ended March 31, 2009 and the unaudited  consolidated balance sheets of Seller and Seller Parent and the related unaudited  consolidated statements of operations, stockholders' equity and  comprehensive income (loss) and cash flows of the Seller and Seller Parent for each  calendar quarter ended between March 31, 2009 and the Closing Date (collectively the “ Unaudited Financial Statements ” and together with the Audited Financial Statements, the “ Financial Statements ”);

(3)          The December 31, 2008 Thrift Financial Report of the Seller and the Thrift Financial Report of the Seller for each calendar quarter ended between December 31, 2008 and the Closing Date (collectively the “ Thrift Reports ”).

The Financial Statements and the Thrift Reports were prepared on a consistent basis and, with respect to the Financial Statements, in accordance with GAAP (subject, in the case of the Unaudited Financial Statements, to recurring audit adjustments, normal in nature and not material in amount, and the absence of notes to the financial statements).  The Financial Statements and the Thrift Reports fairly and accurately present the financial condition and results of operations of Seller Parent and Seller in all material respects for their respective fiscal periods or as of their respective dates, are correct and complete and are consistent with the books and records of Seller Parent and Seller. The books and records of Seller Parent and Seller are correct and complete, have been, and are being, maintained in all material respects in accordance with GAAP and any other Legal Requirement and accounting requirements.

(c)            Title to Assets .  Except as set forth in Schedule 9(c)(i) of the Seller Disclosure Schedule, Seller is the lawful owner of, or in the case of leased Assets, has a valid leasehold interest in, each of the Assets, and the Assets are not subject to any Lien other than Permitted Liens. Except as set forth in Schedule 9(c)(ii) of the Seller Disclosure Schedule and subject to and upon the execution of the documents of transfer, conveyance and assignment by Seller as provided herein at Closing and the receipt of the consents and approvals as set forth herein, Seller has the right to sell, convey, transfer, assign and deliver to Buyer all of Seller’s right, title and interest in and to the Assets free and clear of any Lien other than Permitted Liens and subject to the terms and conditions hereof, on the Closing Date, Buyer will acquire good and marketable title to all of the Assets free and clear of any Lien other than Permitted Liens.

(d)            Premises .  Other than the Premises, the Assets do not include any ownership interest in real property. The Premises constitute all of the real estate owned or leased by Seller on which Seller maintains the Branches.

(e)            Environmental Matters .

(1)          Except as set forth in Schedule 9(e) of the Seller Disclosure Schedule, the Premises have been operated by Seller in material compliance with all Applicable Environmental Laws, including but not limited to Legal Requirements relating to the use, handling, release, storage and disposal of Hazardous Substances.   Seller has not, in violation of any Legal Requirement, used, handled, stored or disposed of Hazardous Substances on the Premises or elsewhere, nor has Seller, in violation of any Legal Requirement, discharged or released any Hazardous Substances upon the Premises or elsewhere, in violation of any Applicable Environmental Laws or that would require remedial action or otherwise impose liability.  To Seller’s Knowledge, and except as set forth in Schedule 9(e) of the Seller Disclosure Schedule, no other party has, in violation of any Legal Requirement, engaged in any such use, handling, storage, disposal, discharge or release of any Hazardous Substance on the Premises.  To Seller’s Knowledge, except as set forth in Schedule 9(e) of the Seller Disclosure Schedule, the Premises have been and are free of any Hazardous Substances, in violation of any Legal Requirement, soil, soil vapor, and groundwater contamination in excess or violation of any applicable cleanup standard, or any underground or above-ground storage tanks, disposal pits, landfills, surface impoundments, clarifiers, leachfields, septic tanks, and wells.

(2)          Seller has maintained secured creditor liability exemptions pursuant to 42 U.S.C. § 9601(20) and similar laws under applicable states, including but not limited to  not participating in management nor otherwise “controlling” or “directing” any borrower such that Seller would be subject to any liability with respect to any environmental matters in connection with any security, borrower’s operations or any borrower’s property; and Seller has not foreclosed on a loan or taken over security in a manner that would result in liability under Environmental Laws, including but not limited to that it has taken “reasonable steps” to divest itself of any such properties at the earliest practicable, commercially reasonable time, on commercially reasonable terms.

(3)          Except as set forth in Schedule 9(e) of the Seller Disclosure Schedule, there are no legal, administrative, arbitration or other proceedings, lawsuits, notices of violations, claims, actions, causes of action, environmental investigations or remediation activities, private or governmental, of any nature seeking to impose, or that reasonably could be expected to result in the imposition, on the Seller of any liability or obligation under any Applicable Environmental Laws, pending or, to the Knowledge of the Seller, threatened against the Seller.  To the Knowledge of the Seller, there is no reasonable basis for any such proceeding, claim, action or governmental investigation that would impose any liability or obligation on the Seller. Neither the Seller nor the Premises is subject to any agreement, order, award, judgment, decree, letter or memorandum by or with any court, governmental authority, regulatory agency, arbitrator, or third party imposing any unsatisfied liability or unmet obligation pursuant to or under any Applicable Environmental Laws.

(f)            Loans .

(1)          All Loans have been made and maintained (including the risk rating of the Loans) in the ordinary course of business, in accordance with Seller’s customary lending standards and written loan policies and in compliance with all applicable Legal Requirements. No Loan is usurious and each Loan either meets or is exempt from any usury laws or regulations.  Seller has complied with any applicable federal or state laws, regulations or other requirements on consumer credit, equal credit opportunity and truth-in-lending.

(2)          Seller’s loan files for the Loans (the “ Loan Files ”) contain all originally executed notes, leases and other evidences of any indebtedness, including without limitation all originally executed loan agreements, loan participation agreements and certificates, control agreements, security agreements, mortgages, guarantees, UCC financing statements and similar documents evidencing collateral or other financial accommodations relating to the Loans (the “ Loan Documents ”).  The Loan Files accurately reflect the payment history through the applicable date thereof, the outstanding balance of the Loan as of the date indicated therein, and all receipts pertaining to the Loan from the Obligor(s) thereof and all credits to which such Obligor(s) are entitled as of the date indicated therein.

(3)          No taxes or other liability of Seller shall accrue against or be collected from Buyer out of any Loan by reason of the purchase thereof by Buyer. Seller has paid or caused to be paid any and all license, franchise, intangible, stamp or other tax or fee due and owing to any state where a Loan originated, or any political subdivision thereof, arising from or relating to the acquisition, collection or holding of any Loan by the Seller.

(4)          Neither Seller nor any of its agents, officers, employees or representatives has been guilty of any civil or criminal fraud with respect to the creation of any Loan or with respect to the transfer, assignment and sale of the same to Buyer hereunder.

(5)          No Loan is (i) thirty (30) days or more past due in the payment of any required principal or interest, (ii) on non-accrual status, (iii) Classified, or (iv) otherwise an Excepted Loan.  All Loan Documents are correct in amount.  To the Knowledge of Seller, the Loan Documents contain genuine signatures of the parties   thereto, including, but not limited to makers and endorsers and of Seller.  The Loan Documents are supported by adequate consideration and are enforceable by Buyer or its successors and assigns in accordance with their respective terms (except as such enforceability may be limited by bankruptcy or creditors’ relief laws of general application), represent the valid and legally binding obligation of the obligor, maker, co-maker, guarantor, endorser or debtor (such Person referred to as an “ Obligor ”) thereunder, and are evidenced by legal, valid and binding instruments executed by the Obligor, each of which at the time of such execution had, to the Knowledge of the Seller, capacity to contract, and none of the obligations represented by the Loan Documents have been modified, subordinated, altered, forgiven, discharged or otherwise disposed of except as indicated by the Loan Documents contained among the Loan Files or as a result of bankruptcy or other debtor’s relief laws of general application.  No Obligor has any right of rescission pursuant to the Truth in Lending Act or other Legal Requirement which has not expired or otherwise terminated.  To the Knowledge of Seller, no maker, signatory or guarantor on any Loan is in bankruptcy and none of the Loans are subject to any offsets or claims of offset, or claims of other liability on the part of Seller.

(6)          Except for FHA loans, no Loans have been sold subject to an agreement to repurchase.

(7)          The servicing practices of Seller used with respect to the Loans have been consistent with commercially reasonable practices in the industry and have been in compliance in all material respects with all Legal Requirements.

(8)          No borrower, customer or other party in connection with the Loans has notified Seller, or has asserted against Seller, in each case in writing, any “lender liability” or similar claim.

(9)          Except as set forth on Schedule 9(f) of the Seller Disclosure Schedule, the Seller has made no commitment to make or modify the terms and conditions of any Loan other than as set forth in the Loan Files. Except as set forth on Schedule 9(f) of the Seller Disclosure Schedule, no Obligor under any Loan is entitled to any further advances of loan proceeds.  No Loan is cross-collateralized with any other loan.  Any insurance with respect to any Loan is in full force and effect and Seller has complied with all applicable provisions of any insurance contract or applicable Legal Requirement with respect to such insurance, except where such non-compliance would not materially affect the insurability or value of such loan.

(10)        With respect to any Loan secured by real property:

(11)        The Seller has properly perfected or caused to be properly perfected valid and enforceable security interests, liens, or other interests in any collateral securing the Loans and such proper perfection continues to be in effect, such security interests, liens, or other interests are assignable and have the priority reflected in the Seller’s books and records and each such Loan contains customary and enforceable provisions such that the rights and remedies of the holder thereof shall be adequate for the practical realization against any collateral securing such Loan.

(12)        The Seller is the sole owner and holder of the Loans, has all power and authority to hold the Loans and has good and marketable title to the Loans free and clear of any Lien other than Permitted Liens.

(g)            Deposit Liabilities . The Deposit Liabilities are genuine and enforceable obligations of Seller and have been originated or extended and administered in all material respects in compliance with the documents governing the relevant type of Deposit Liabilities and all Legal Requirements, including without limitation, the Truth in Savings Act and regulations promulgated thereunder.  The Deposit Liabilities are insured by the FDIC through the Deposit Insurance Fund to the fullest extent provided for by applicable Legal Requirement and all premiums and assessments required to be paid in connection with such insurance have been paid when due.  All interest has been properly accrued on the Deposit Liabilities and Seller’s records accurately reflect such accrual of interest.  As of the date of this Agreement, except as set forth on Schedule 9(g) of the Seller Disclosure Schedule, Seller has not received written notice of any loss or potential loss of any material business or customers related to the Loans or the Deposit Liabilities.

(h)            Branch Business .

(1)          The business at the Branches has been conducted in compliance with Seller’s policies and procedures and in material compliance with all Legal Requirements.

(2)          Except as set forth on Schedule 9(h) of the Seller Disclosure Schedule, there are no Legal Proceedings or Order entered, promulgated or pending or, to the Knowledge of Seller, threatened against or affecting the Assets, Liabilities, or any of the Branches or against any of the Branches or the business of Seller at law or in equity or otherwise, and there are no unsatisfied judgments of record against Seller. Except as set forth on Schedule 9(h) of the Seller Disclosure Schedule, there are no obligations or liabilities (whether or not accrued, contingent or otherwise) that would reasonably be expected to result in any claims against or obligations or liabilities of Seller with respect to the Branches, the Assets or Liabilities.

(i)            Regulatory Approval; Regulatory Agreement .

(1)          Except as set forth on Schedule 9(i)(1) of the Seller Disclosure Schedule, there are no pending or, to the Knowledge of Seller, threatened disputes or controversies between Seller Parent or Seller and any Governmental Entity.

(2)          As of the date of this Agreement, neither Seller Parent nor Seller has received any written indication, or, to the Knowledge of Seller, oral notification, from any Governmental Entity that such Governmental Entity would oppose or refuse to grant a regulatory approval regarding execution of this Agreement by Seller Parent and Seller and consummation of the transactions contemplated herein by Seller Parent and Seller.

(3)          Other than the Cease and Desist Order, the Amended Order, the FDIC Resolution and the OTS Regulatory Letter and as set forth on Schedule 9(i)(3) of the Seller Disclosure Schedule, Seller is not subject to any cease-and-desist or other order issued by, or a party to any written agreement, consent agreement or memorandum of understanding with, or a party to any commitment letter or similar undertaking to, or subject to any order or directive by, or been a recipient of any supervisory letter from, or has adopted any board resolutions (each of the foregoing, a “ Regulatory Agreement ”), at the request of any Governmental Entity, nor has the Seller been advised by any Governmental Entity that it is considering issuing or requesting any Regulatory Agreement.

(4)          Seller has been in material compliance and continues to be in material compliance as of the date hereof with the Cease and Desist Order, the Amended Order, the FDIC Resolution, the OTS Regulatory Letter and the agreements, memoranda of understanding, commitment letters, directives, resolutions, arrangements and other written documentation that are identified in Schedule 9(i)(4) of the Seller Disclosure Schedule.

(j)            Power, Authority and Enforceability .  Seller has the requisite power and authority to enter into, deliver and perform this Agreement and any instruments or other documents executed pursuant hereto.  This Agreement and any instruments or other documents executed pursuant hereto, and the execution, delivery and performance hereof and thereof have been duly authorized and approved by all necessary corporate action on the part of Seller.  This Agreement has been duly and validly executed and delivered by Seller and, assuming due authorization, execution and delivery by Buyer, constitutes a valid and binding obligation of Seller, enforceable against Seller in accordance with its terms, except as enforcement may be limited by receivership, conservatorship and supervisory powers of bank regulatory agencies generally, as well as bankruptcy, insolvency, reorganization, moratorium or other laws of general applicability relating to or affecting creditors’ rights, or the limiting effect of rules of law governing specific performance, equitable relief and other equitable remedies or the waiver of rights or remedies.

(k)            No Conflict .  The execution, delivery and performance of this Agreement and any instruments and documents executed pursuant hereto by Seller do not, and will not:

(1)          violate any provision of the organizational documents of Seller,

(2)          subject to the receipt of all regulatory approvals required by this Agreement as set forth in Schedule 9(k)(2) of the Seller Disclosure Schedule (the “ Regulatory Approvals ”), constitute a breach or violation of, or default under, any Legal Requirement, Order or Governmental Authorization to which Seller is subject, which breach, violation or default, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect, or

(3)          subject to the receipt of all consents required by this Agreement as set forth on Schedule 9(k)(3) of the Seller Disclosure Schedule (the “ Consents ” and together with the Regulatory Approvals collectively referred to as, the “ Required Consents ”), constitute a breach or violation of, or default under, any agreement or instrument of Seller or to which Seller is subject or by which Seller is otherwise bound, which breach, violation or default, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect, or

(4)          result in the creation of any Lien upon any of the Assets.

(l)            Licenses and Permits .  Seller has all material Governmental Authorizations necessary for the lawful conduct of its business at each of the Branches as now conducted and, except as would not individually or in the aggregate be reasonably expected to have a Material Adverse Effect, all such Governmental Authorizations, are valid and in good standing and, to the Knowledge of Seller, are not subject to any suspension, modification or revocation or proceedings related thereto.

(m)            Required Consents .  Other than the Regulatory Approvals, no notices, reports or other filings are required to be made by Seller with, nor are any consents, registrations, approvals, permits or authorizations required to be obtained by Seller from, any Governmental Entity in connection with the execution and delivery of this Agreement by Seller and the consummation of the transactions contemplated by this Agreement by Seller. Other than the Required Consents, there are no consents or approvals of any Governmental Entity or other third party required to be obtained in connection with the execution and delivery of this Agreement by Seller and the consummation of the transactions contemplated by this Agreement by Seller.

(n)            Personal Property .  Seller has valid title to the Personal Property, free and clear of any Liens other than Permitted Liens, and has the right to sell, convey, transfer, assign and deliver to Buyer all of the Personal Property.  The Personal Property is in good working order, ordinary wear and tear excepted, and is fit for the purpose it is used for by Seller in the conduct of the business of the Branches.

(o)            Insurance .   Schedule 9(o) of the Seller Disclosure Schedule contains a complete and accurate list and description (including coverage, deductible and expiration date) of all insurance policies (collectively, the “ Insurance Policies ”),which are owned by Seller or which name Seller as an insured and which pertain to the Assets, Branches or Seller’s employees.  Except as set forth on Schedule 9(o) of the Seller Disclosure Schedule, all such Insurance Policies are in full force and effect, and Seller has not received written notice of termination or non-renewal of any such Insurance Policies.  Except as set forth on Schedule 9(o) of the Seller Disclosure Schedule, since December 31, 2008, Seller has not received: (i) any written notice of cancellation of any Insurance Policy or refusal of coverage thereunder; (ii) any written notice that any issuer of such Insurance Policy has filed for protection under applicable bankruptcy laws or is otherwise in the process of liquidating or has been liquidated; or (iii) any other indication in writing that such Insurance Policies are no longer in full force or effect or that the issuer of any such policy is no longer willing or able to perform its obligations thereunder.  Since December 31, 2008, Seller has not been advised of any adverse change in Seller’s relationship with its insurers or in the premiums payable pursuant to such policies.  Seller shall keep all Insurance Policies in full force and effect through the Closing Date.

(p)            Employment; Labor .

(1)          Seller has provided or made available to Buyer a complete list of all employees employed at the Branches as of the date hereof and a true and correct copy of each such employee’s complete employment file. All employment files have been maintained in compliance in all material respects with all applicable Legal Requirements regarding employment.   Except as set forth on Schedule 9(p)   of the Seller Disclosure Schedule, there are no employment agreements, non-compete agreements or other contracts or arrangements for the performance of personal services at the Branches, with employees employed or independent contractors or consultants retained, at the Branches.

(2)          Seller has not received services from any individual whom Seller treated as an independent contractor, but who should have been treated as a common-law employee.

(3)          Seller has complied with all Legal Requirements relating to the employment of its employees in all material respects, including any provisions thereof relating to: (i) wages, hours, bonuses, commissions, termination pay, vacation pay, sick pay, fringe benefits, health insurance continuation (COBRA), and the payment and/or accrual of the same and all insurance and all other costs and expenses applicable thereto; (ii) unlawful, wrongful, or retaliatory or discriminatory employment or labor practices; (iii) occupational safety and health standards; or (iv) plant closing, mass layoff, immigration, workers’ compensation, disability, unemployment compensation, whistleblower and other employment Legal Requirements.

(4)          Seller has not engaged in any “mass layoff” or “plant closing” (as defined by applicable federal and state WARN laws) within the six months prior to Closing.

(5)          Seller is not a party to any collective bargaining agreement or other labor union contract applicable to its employees.  There are and have been no strikes, slowdowns, work stoppages or lockouts, by or with respect to any of the employees of Seller in connection with the operation of the business.  Seller has not agreed to recognize any union or other collective bargaining representative, and no union or other collective bargaining representative has been certified as the exclusive bargaining representative of any of Seller’s employees.  There is no current union representation matter involving employees of Seller, and, to Seller’s Knowledge, there is no activity or proceeding of any  labor organization (or representative thereof) or employee group to organize any such employees.

(6)          No employee of Seller is party to, or is otherwise bound by, any agreement, including any confidentiality, non-competition, non-solicitation, or proprietary rights agreement between such employee and any other Person which materially adversely affects or will materially adversely affect the employee’s ability to perform duties as an employee of Buyer following the Closing.

(7)          No employee of Seller has asserted or threatened to assert any claim against Seller or any of Seller’s officers, directors, or managers (whether under Legal Requirement, any employment agreement or otherwise) on account of or for: (i) overtime pay; (ii) wages, salaries, bonuses or commissions; (iii) vacations, sick leave, or time off or pay in lieu of vacation or sick leave or time off; (iv) alleged unlawful, unfair, wrongful, retaliatory or discriminatory employment or labor practices; (v) breach of contract arising under an individual agreement or any other employment covenant whether express or implied; (vi) alleged violation of any law regarding minimum wages, maximum hours of work, or meal and rest periods; (vii) alleged violation of occupational safety and health standards; (viii) alleged tort violations; or (ix) alleged violations of immigration, workers’ compensation, disability, unemployment compensation, protected leave, whistleblower, or any other employment or labor relations laws.

(8)          All employees of Seller are authorized to work in the United States and a Form I-9 has been properly completed and retained with respect to each of Seller’s current and former employees.

(9)          The employees of Seller who have (or have had) access to confidential and/or proprietary information of Seller have executed confidentiality and assignment of inventions documentation which documentation is adequate to protect Seller’s proprietary interest therein;

(10)                    Except as set forth on Schedule 9(p)   of the Seller Disclosure Schedule, the employment of each employee of Seller is terminable at will without cost to Seller except for payment of accrued salaries or wages and vacation pay.  No current or former employee of Seller has any right to be rehired by Seller prior to its hiring an individual not previously employed by Seller.

(11)                    All employees of Seller have been or will have been, on or before the Closing, paid in full by Seller for all earned wages, salaries, commissions, bonuses, vacation pay, sick pay, and other compensation of any kind for services performed on behalf of Seller up to and including the Closing Date.

(12)                    To Seller’s Knowledge, no officer or other key employee of Seller intends to terminate employment with Seller prior to the Closing.  Seller has not taken any action which was calculated to dissuade any present employees, representatives or agents of Seller from working for the Buyer following the Closing.

(q)            Tax Matters .  Except as set forth in Schedule 9(q) of the Seller Disclosure Schedule:

(1)          Seller has filed all material tax returns that it is required to file (taking into account any extensions of a required filing date).  All such tax returns were correct and complete in all respects.  All taxes owed by Seller (whether or not shown on any tax return) have been paid.  Seller is not currently the beneficiary of any extension of time within which to file any tax return.  There are no encumbrances on any of the assets of Seller that arose in connection with any failure (or alleged failure) to pay any tax.

(2)          Seller has withheld and paid all taxes required to have been withheld and paid in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder, or other third party.

(3)          There is no dispute or claim concerning any tax liability of Seller (including a written claim made by an authority in a jurisdiction where Seller does not file tax returns that Seller is or may be subject to taxation by that jurisdiction) either (A) claimed or raised by any authority in writing or (B) as to which any of the directors and officers (and employees responsible for tax matters) of Seller have Knowledge based upon personal contact with any agent of such authority.   Schedule 9(q) of the Seller Disclosure Schedule lists all material federal, state, local and foreign income tax returns filed for each of the last three (3) years with respect to Seller, indicates any tax returns that have been audited, and indicates any tax returns that currently are the subject of audit.  Seller has delivered to the Buyer correct and complete copies of all its income tax returns for the last three (3) years, examination reports, and statements of deficiencies assessed against or agreed to by Seller.

(4)          Seller has not waived any statute of limitations in respect of taxes or agreed to any extension of time with respect to a tax assessment or deficiency.

(5)          Seller is not a party to any tax allocation or sharing agreement.  Seller (A) has not been a member of an affiliated group filing a consolidated federal income tax return (other than a group the common parent of which was Seller) or (B) does not have any liability for the taxes of any Person (other than Seller) under Treas. Reg. Section 1.1502-6 (or any similar provision of state, local, or foreign law), as a transferee or successor, by contract, or otherwise.

(6)          Seller has no permanent establishment in any foreign country, as defined in the relevant tax treaty between the United States of America and such foreign country.

(7)          No deficiency or proposed adjustment which has not been settled or otherwise resolved for: (A) any amount of tax has been proposed, asserted or assessed by any taxing authority against Seller, or (B) any material amount of tax has been proposed, asserted or assessed by any taxing authority against any affiliated group with respect to a taxable period during which Seller was a member of the affiliated group.

(8)           Schedule 9(q) of the Seller Disclosure Schedule contains a list of states, territories and jurisdictions (whether foreign or domestic) in which Seller has filed tax returns relating to income taxes.

(r)            ERISA .   Schedule 9(r) of the Seller Disclosure Schedule sets forth a true and complete list of each Employee Benefit Plan of Seller and its ERSIA Affiliates  Neither Seller nor any of its ERISA Affiliates sponsors, maintains or contributes to (and no such Person has ever sponsored, maintained or contributed to) any “employee pension benefit plan” (as defined in Section 3(2) of ERISA) that is subject to Title IV of ERISA or Section 412 of the Code, any “multiemployer plan” as defined in Section 3(37) of ERISA, or any “multiple employer plan” subject to Section 4063 or 4064 of ERISA. None of the Assets (i) are “plan assets” of any Employee Benefit Plan, (ii) are subject to any lien or other encumbrance relating to any Employee Benefit Plan under ERISA, the Code, or otherwise, or (iii) otherwise have been identified or earmarked as available for or relating to benefits under any Employee Benefit Plan.

(s)            Intellectual Property .

(1)          To the Knowledge of Seller and Seller Parent, the maintenance of the Liabilities or ownership of Assets do not infringe on or otherwise violate the Intellectual Property rights of any Person. To the Knowledge of Seller and Seller Parent, in the four years immediately preceding the date of this Agreement, Seller has not received any written notice of any pending, existing or threatened claim, action or proceeding with respect to any claims of infringement or misappropriation of any third party’s Intellectual Property Rights and, to the Knowledge of Seller and Seller Parent, no such claim, action or proceeding is pending, existing or threatened, and to the Knowledge of Seller and Seller Parent, there are no obligations or liabilities (whether or not accrued, contingent or otherwise) or, facts or circumstances arising from Seller’s maintenance of the Liabilities and ownership of the Assets that would reasonably be expected to result in any claims against Seller for the misappropriation of infringement of Intellectual Property Rights with respect to the Branches, the Assets or Liabilities.

(2)          To the knowledge of Seller and Seller Parent, no current or former employee, consultant or independent contractor of Seller:  (i) is in material violation of any term or covenant of any employment contract, patent disclosure agreement, invention assignment agreement, nondisclosure agreement, noncompetition agreement or any other contract, agreement, arrangement, commitment or undertaking with any other party by virtue of such employee’s, consultant’s or independent contractor’s being employed by, or performing services for, Seller or using trade secrets or proprietary information of others without permission; (ii)  has, to Seller’s Knowledge, misappropriated any trade secrets of any other Person in the course of its performance as an employee, independent contractor or agent or (iii) has developed any technology, software or other copyrightable, patentable or otherwise proprietary work for Seller that is subject to any agreement under which such employee, consultant or independent contractor has assigned or otherwise granted to any third party any rights (including Intellectual Property) in or to such technology, software or other copyrightable, patentable or otherwise proprietary work.  The employment of any employee of Seller or the use by Seller of the services of any consultant or independent contractor does not subject Seller to any liability to any third party for improperly soliciting such employee, consultant or independent contractor to work for Seller, whether such Liability is based on contractual or other legal obligations to such third party.

(3)          Set forth on Schedule 9(s)(3) of the Seller Disclosure Schedule is a complete description of the Intellectual Property that will be licensed by Seller to Buyer at Closing (the “ Licensed IP ”), including a true and complete list of (i) all worldwide registrations made by or on behalf of the Seller of any trademarks, service marks, Internet domain names or Internet or World Wide Web URLs or addresses with any governmental authority or quasi-governmental authority, including Internet domain name registries, and (ii) all applications, registrations, filings and other formal written governmental actions made or taken pursuant to applicable Legal Requirements by the Seller to secure, perfect or protect its interest in the Licensed IP.

(4)          Seller owns, free and clear of any liens, all rights, title and interest in and to all Licensed IP. To the knowledge of Seller, the Licensed IP are valid and subsisting, in full force and effect in all material respects, and have not been canceled, expired or abandoned. Except as set forth on Schedule 9(s)(4) of the Seller Disclosure Schedule, no registration or application with respect to any Licensed IP is subject to any maintenance fees or taxes or actions falling due, including without limitation, the filing of an affidavit of use, renewal or response to an official action, during the Phaseout Period. To the knowledge of Seller and Seller Parent, no Person is challenging, infringing on or otherwise violating any right of Seller or Seller Parent with respect to any Licensed IP. To the knowledge of Seller and Seller Parent, in the four years immediately preceding the date of this Agreement, Seller has not received any written notice of any pending, existing or threatened claim, action or proceeding with respect to any Licensed IP and, to the knowledge of Seller and Seller Parent, no such claim, action or proceeding is pending, existing or threatened, and to the Knowledge of Seller and Seller Parent, no Licensed IP is being used or enforced in a manner that would result in the abandonment, cancellation or unenforceability of such Licensed IP or right.

(t)            Assigned Contracts .

(1)          Seller has made available to Buyer true, complete and accurate copies of the Assigned Contracts, together with all amendments, modifications or supplements thereto, including any assignments thereof

(2)          The Assigned Contracts are the valid and binding obligation of Seller, and to Seller’s Knowledge, of each other party thereto; and, except as would not reasonably be expected to have a Material Adverse Effect, there does not exist with respect to Seller’s obligations thereunder, or, to Seller’s Knowledge, with respect to the obligations of each other party thereto,  the counterparty thereof, any default, or event or condition which constitutes or, after notice or passage of time or both, would constitute a default on the part of Seller or such other party, as applicable, under the Assigned Contracts.

(u)            Capitalization .  Seller Parent owns all of the issued and outstanding capital stock of Seller.

(v)            No Insolvency Proceeding .  Seller has not entered into this Agreement with the actual intent to hinder, delay or defraud any creditor or any other Person.  There has been no voluntary insolvency, bankruptcy, receivership, custodianship, liquidation, dissolution, reorganization, assignment for the benefit of creditors or similar proceeding (an " Insolvency Proceeding ") commenced with respect to Seller. As of the date of this Agreement, Seller is not currently planning to commence an Insolvency Proceeding. As of the date of this Agreement, to the Knowledge of Seller, no other Person is currently planning to commence an Insolvency Proceeding with respect to Seller.  

(w)            Brokers .  Seller has not employed or contracted with any broker or finder or incurred any liability for brokerage fees, commissions, finders’ fees or other like payment in connection with the transactions contemplated hereunder, except for any liability, fee and commission to Keefe, Bruyette & Woods, Inc. (“ Seller Financial Advisor ”) and Donnelly Penman & Partners for which Seller Parent and/or Seller shall be solely liable.

(x)            Limitations on Representations and Warranties .  Except for the representations and warranties specifically set forth in this Section 9, neither Seller nor any of its agents, Affiliates or representatives, nor any other Person (other than Seller Parent in Section 10 below), makes or shall be deemed to make any representation or warranty to Buyer, express or implied, at law or in equity, with respect to the transactions contemplated hereby.

(a)            Corporate Organization .  Seller Parent is a corporation duly organized, validly existing and in good standing under the laws of the State of Maryland and is duly registered as a savings and loan holding company under the Home Owners Loan Act of 1933, as amended. Seller Parent has the requisite corporate power and authority to own or lease all of its properties and assets and to carry on its business as it is now being conducted, and is duly licensed or qualified to do business in each jurisdiction in which the nature of the business conducted by it or the character or location of the properties and assets owned or leased by it makes such licensing or qualification necessary, except where the failure to be so licensed or qualified would not (i) reasonably be expected to have a Material Adverse Effect or (ii) prevent or materially delay Seller or Seller Parent from performing their respective obligations under this Agreement.

(b)            Power, Authority and Enforceability .  Seller Parent has the requisite power and authority to enter into, deliver and perform this Agreement and any instruments or other documents executed pursuant hereto and to consummate the transactions contemplated hereby and thereby.  This Agreement and any instruments or other documents executed pursuant hereto, and the execution, delivery and performance hereof and thereof have been duly authorized and approved by all necessary corporate action on the part of Seller Parent.  This Agreement has been duly and validly executed and delivered by Seller Parent and, assuming due authorization, execution and delivery by Buyer, constitutes a valid and binding obligation of Seller Parent, enforceable against Seller Parent in accordance with its terms, except as enforcement may be limited by receivership, conservatorship and supervisory powers of bank regulatory agencies generally, as well as bankruptcy, insolvency, reorganization, moratorium or other laws of general applicability relating to or affecting creditors’ rights, or the limiting effect of rules of law governing specific performance, equitable relief and other equitable remedies or the waiver of rights or remedies.

(1)          violate any provision of the organizational documents of Seller Parent,

(2)          subject to the receipt of the Regulatory Approvals and Consents as set forth on Schedule 10(c) of the Seller Disclosure Schedule, constitute a breach or violation of or default under any law, Legal Requirement, Order or Governmental Authorization to which Seller is subject, which breach, violation or default, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect,

(3)          subject to the receipt of all Regulatory Approvals and Consents as set forth on Schedule 10(c) of the Seller Disclosure Schedule, constitute