(2) All of the personal property of Seller located at the Branches or affixedto the Premises, including, without limitation, the furniture, trade fixtures,equipment, shelving, on-premises ATMs, security systems, safe deposit boxes(including keys, but exclusive of contents), vaults, telephone numbers, signstructures (exclusive of signage containing any trade name, trademark or servicemark, if any, of Seller), supplies (excluding any items consumed or disposed of,but including new items acquired or obtained, in the ordinary course of theoperation of the Branches through the Closing Date) (collectively, the“Personal Property”). The Personal Property is set forth in Schedule2 and shall be updated as of the Closing Date;     (3) All cash on hand at the Branches, including, without limitation, vault andteller cash, petty cash, on-premises ATM cash, cash items in the process ofcollection, and cash equivalents held at the Branches (collectively, the “Cashon Hand”);     (4) The security deposits on the Branch Lease (“Premises SecurityDeposits”);     (5) Prepaid expenses, including rents and utilities, as set forth onSchedule 3, which Schedule 3 shall be updated as of the ClosingDate (the “Prepaid Expenses”);     (6) The Loans, including Accrued Interest, the collateral for the Loans, theLoan Files and Loan Documents and all servicing rights related to such Loanspursuant to Section 15(b);     (7) The Branch Lease, Personal Property leases, licenses, contracts and otheragreements identified on Schedule 5 that relate to the Branches(“Assigned Contracts”);     (8) The Safe Deposit Agreements;     (9) The Records;     (10) The rights of action and claims related to the Assets and all rights ofSeller under express or implied warranties given or made in connection with theAssets; and     (11) The Additional Assets (as defined below), if any.The foregoing assets in (1) through (11) will be referred to collectively as the “Assets.”Buyer shall succeed to all rights, title, benefits and interests in and to the Assets as of theClosing, and shall be entitled to receive all benefits therefrom from and after the Closing.     (b) No later than two (2) Business Days prior to the Closing Date, Seller may agree togrant, sell, convey, assign, transfer and deliver to Buyer, and Buyer may agree to purchaseand accept from Seller, such additional assets of Seller (“Additional Assets”) as theparties may mutually agree, on such terms and conditions (including, without
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limitation, the valuation thereof and appropriate representations and warranties withrespect thereto) as may be mutually agreed upon by the parties and set forth on Schedule6. Such additional consideration for any Additional Assets will be added to the PurchasePrice. Seller will not grant, sell, assign, transfer or encumber and Buyer will not purchaseany assets of Seller under this Agreement other than the Assets and any Additional Assets, ifany.     (c) Seller and Buyer hereby acknowledge and agree that, during the period between theexecution of this Agreement and five (5) Business Days prior to the Closing Date, Seller, inits sole and absolute discretion, may add loans originated prior to the date of the executionof this Agreement to Schedule 4(a)(i) with such loans thereby becoming “Loans” forall purposes under this Agreement. Seller covenants and agrees, as soon as practicablefollowing a request by Buyer, to provide Buyer with all loan agreements, loan documents andother relevant data (including, but not limited to, any facts, conditions, occurrences,changes and other matters that Seller may include on the Seller Disclosure Schedule as anexception to the representations and warranties as the same apply to such Loan) reasonablynecessary to allow Buyer to determine, in its sole and absolute discretion, which loans, ifany, shall be added to Schedule 4(a)(i) and thereby become “Loans” for all purposesunder this Agreement. Buyer covenants and agrees, that as soon as reasonably practicablefollowing such a determination by Buyer with respect to a particular loan or set of loans,that Buyer shall notify Seller of Buyer’s decision to add such loans to Schedule4(a)(i) thereby becoming “Loans” for all purposes under this Agreement. At the time suchnew Loan is added to Schedule 4(a)(i) pursuant to this Section 1(c), the SellerDisclosure Schedule shall be updated to reflect any exceptions to the representations andwarranties solely in connection with such new Loan and Section 1(e) below shall only apply toany Seller Loan Disclosure Update made by Seller after such time.     (d) Through the period ending twenty-five (25) Business Days prior to the Closing Date(the “Loan Review Period”), Buyer shall have reasonable access pursuant to Section16(l) and may review all Loans to identify in writing to Seller (1) any and all loans thatwere improperly or mistakenly classified as Loans as of the date of this Agreement due totheir inclusion on Schedule 4(a)(i), or (2) any and all Loans that as of the date ofthe execution of this Agreement would entitle Buyer to indemnification (for purposes of thisdetermination, ignoring the limitations on indemnification set forth in Section 20(e)) forLosses resulting from a breach of any of the representations or warranties set forth inSection 9(f) (for purposes of this determination, any such representation or warranty that isqualified by Material Adverse Effect, materiality or similar qualifier shall be read andgiven effect as if no such qualifier is contained therein) ((1) and (2) collectively, the“Excluded Loans”). Seller shall have ten (10) Business Days following the end of theLoan Review Period to cure any such breaches, if any, capable of cure identified in suchnotice provided by Buyer pursuant to (2) above (and in the event Seller cures any suchbreaches, the Loan(s) associated with such breach(es) shall not be deemed “Excluded Loans”).Following the end of such ten (10) Business Day period, Seller shall make adjustments toSchedule 4(a)(i) to remove the Excluded Loans therefrom, and make correspondingadjustments to the Purchase Price.     (e) Notice of Developments.
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     (1) From the date of this Agreement until the Closing Date, Seller shall, fromtime to time, provide Buyer with prompt written notice upon, and in any eventwithin one (1) business day of, becoming aware of any facts, conditions,occurrences, changes and other matters that could reasonably be expected to cause abreach of any of the representations and warranties of Seller contained in Section9(f) of this Agreement (each a “Seller Loan Disclosure Update”).     (2) No later then fifteen (15) Business Days following the date the applicableSeller Loan Disclosure Update was provided to Buyer and, with respect to any SellerLoan Disclosure Update provided fifteen (15) Business Days prior to the ClosingDate, no later then the close of business on the Business Day immediately precedingthe Closing Date, Buyer may, in its sole and absolute discretion, notify Seller ofits intention to exclude from the definition of “Loans,” and thereby thetransactions contemplated by this Agreement, any and all Loans as to which suchparticular Seller Loan Disclosure Update, directly or indirectly, relates, impactsor is relevant to. Seller shall then have fourteen (14) calendar days followingnotice from Buyer (or such lesser period of time remaining between the receipt bySeller of notice from Buyer and the Business Day immediately preceding the ClosingDate) to address those matters, if any, capable of being cured that are identifiedin the Seller Loan Disclosure Update such that thereafter they would not reasonablybe expected to cause a breach . i) In Buyer’s reasonable judgment, if Selleradequately addresses said matters such that thereafter they would notreasonably be expected to cause a breach, then those Loan(s) to whichthe Seller Loan Disclosure Update in question relates shall not beremoved from Schedule 4(a)(i) and therefore shall remainwithin the definition of “Loans,” which are to be acquired by Buyerpursuant to this Agreement.  ii) In the event a Seller Loan Disclosure Updatediscloses matters not capable of being cured, or in Buyer’s reasonablejudgment, if Seller does not adequately address a matter capable ofbeing cured within the time period provided for above, then in Buyer’ssole and absolute discretion, Buyer may either (x) elect to acquiresome or all of the Loans to which the Seller Loan Disclosure Update inquestion relates, or (y) remove such Loans from Schedule4(a)(i), thereby removing them from the definition of “Loans,”which are to be acquired by Buyer pursuant to this Agreement, and makecorresponding adjustments to the Purchase Price.     (3) Unless the parties otherwise agree in writing, Seller shall not deliverany Seller Loan Disclosure Updates to the Buyer after the fifteenth(15th) Business Day prior to the Closing Date (the “Update Cut-OffDate”) and any such disclosure delivered to Buyer following the Update Cut-OffDate shall
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not be deemed to be a “Seller Loan Disclosure Update” for purposes of thisAgreement.     (4) Seller Loan Disclosure Updates shall not be deemed to be part of theSeller Disclosure Schedule for purposes of determining whether a breach of arepresentation or warranty has occurred or whether a party is entitled toindemnification under this Agreement.     **2. ****Assumption of Liabilities; Excluded Liabilities****.**     (a) As of and after the Closing, subject to satisfaction of the terms and conditionshereof, including the transfer of the Assets to Buyer, Buyer will pay, perform and assume thefollowing liabilities of Seller and will perform the following duties, responsibilities andobligations of Seller that are to be performed from and after the Closing Date:     (1) the Deposit Liabilities, including IRA and Keogh Accounts to the extentcontemplated by Section 2(c);     (2) the special FDIC premium assessment as of June 30, 2009 that will becollected on September 30, 2009, but only with respect to the Deposit Liabilities;     (3) the Assigned Contracts, if such Assigned Contracts are actually assignedto Buyer in accordance with their terms;     (4) Funding commitments under the Loans, including, Unfunded Advances, and theservicing of the Loans;     (5) The Safe Deposit Agreements;     (6) The accrued liabilities, if any, described in Schedule 2(a)(6)(the “Accrued Liabilities”);     (7) The obligations assumed by Buyer under Section 16(m) of this Agreement,which under no circumstance shall include any liability or obligation for anyemployment, change-in-control or other severance agreement or any payments underany Employee Benefit Plan of Seller and/or Seller Parent, including, but notlimited to, bonus or incentive programs; and     (8) Taxes Buyer is responsible for under Section 21 and any taxes with respectto the Assets or the Branches for any taxable period (or portion thereof) thatbegins after the Closing Date.The foregoing liabilities set forth in (1) through (8) only will be referred to collectivelyas the “Liabilities.”     (b) Notwithstanding anything to the contrary in this Agreement, other than theLiabilities, which Buyer is expressly assuming pursuant to this Agreement, Buyer shall not
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assume or be bound by any duties, responsibilities, obligations or liabilities ofSeller, or of any of its Affiliates, of any kind or nature, known, unknown, contingent orotherwise, including, without limitation, (i) those attributable to any acts or omissions toact taken or omitted to be taken by Seller (or any of its Affiliates) prior to the ClosingDate and any Legal Proceedings that arise as a result thereof; (ii) for any Seller or SellerParent tax liability, including, but not limited to, interest and penalties required to bepaid by Seller or its successor, except as provided herein; (iii) any obligation of Seller toindemnify any Person; (iv) for any liability of Seller or any Affiliate under this Agreementor for costs and expenses incurred in connection with this Agreement and the transactionscontemplated hereby; (v) relating or arising out of any deposit excluded under the definitionof Deposit Liabilities; (vi) those having to do with or related to the employment or othersimilar relationship between Seller and Seller Parent on the one hand and their current,former or prospective employees, officers, directors, consultants and other agents, on theother hand, including, but not limited to, those relating to termination of employment orrefusal to hire, termination or severance payments, and compensation (including commissionand incentive payments), and those occurring under or related to any Employee Benefit Plan ofSeller or any of its ERISA Affiliates, and (vii) those arising from circumstances, events orconditions 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 itsreasonable best efforts to cooperate with Buyer in taking any action reasonablynecessary to accomplish either the appointment of Buyer as successor custodian orthe delegation to Buyer (or to an Affiliate of Buyer) of Seller’s authority andresponsibility as custodian of all such IRAs, including, but not limited to,sending to the depositors thereof appropriate notices, cooperating with Buyer insoliciting consents from such depositors, and filing any appropriate applicationswith applicable regulatory authorities. If, notwithstanding the foregoing, as ofthe Closing Date, Buyer shall be unable to retain Deposit Liabilities in respect ofan IRA, such Deposit Liabilities shall be deemed to be “ExcludedLiabilities” for purposes of this Agreement.     (2) With respect to Deposit Liabilities in Keogh Accounts, Seller will usereasonable best efforts to cooperate with Buyer to invite depositors thereof todirect a transfer of each such depositor’s Keogh Account and the related DepositLiabilities to Buyer, as trustee thereof, and to adopt Buyer’s form of Keogh MasterPlan as a successor to that of Seller.  Buyer will assume no Keogh Accounts unlessBuyer has received the documents, to its satisfaction, necessary for suchassumption at or before the Closing, and, if notwithstanding the foregoing, as ofthe Closing Date, Buyer shall be unable to retain Deposit Liabilities in respect ofa Keogh Account, such Deposit Liabilities shall be deemed to be “ExcludedLiabilities” for purposes of this Agreement.
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     **3. ****Calculation and Allocation of Purchase Price**.     (a) Purchase Price. Subject to Section 1 (with respect to Additional Assets andExcluded Loans), 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 lower of: (i) the aggregate amount of the Net Book Value of thePremises as of the last day of the month end immediately preceding the ClosingDate, and (ii) the Appraised Value of the Premises;     (2) The aggregate amount of the Net Book Value of the Personal Property as ofthe last day of the month end immediately preceding the Closing Date, provided,however that, with the exception of furniture, Buyer shall not be required to payfor any Personal Property located at the Shelbyville branch, and therefore the NetBook Value of such Personal Property shall not be included in the Purchase Price;     (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 aggregateamount of Accrued Interest, on the Closing Date; *plus*     (7) The aggregate amount agreed upon by Seller and Buyer for the AdditionalAssets, if any.     (b) Adjustments of Purchase Price.     (1) Solely for purposes of facilitating the calculation of the cash due Buyeror Seller, as applicable, on the Closing Date, Seller shall provide to Buyer, five(5) Business Days prior to the Closing Date, the Draft Closing Statement.     (2) On or before 12:00 noon E.D.T. on the thirtieth (30th) calendar dayfollowing the Closing Date (the “Adjustment Date”), Seller shall deliver toBuyer the Final Closing Statement and Seller shall make available to Buyer suchwork papers, schedules and other supporting data used to calculate and prepare theFinal Closing Statement as may be requested by Buyer to enable Buyer to verify suchdeterminations set forth in the Final Closing Statement.     (3) If, within forty-five (45) calendar days following the date of receipt byBuyer of the Final Closing Statement, Buyer does not dispute any items contained inthe Final Closing Statement or omitted therefrom, then the Final Closing Statementshall be final and binding upon the parties. In the event
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that Buyer disputes any items contained in the Final Closing Statement oromitted therefrom, such disputes shall be resolved in the following manner:     (A) Buyer shall notify Seller, in writing (the “Notice ofDisagreement”) of such dispute(s) within forty-five (45) calendar daysafter Buyer’s receipt of the Final Closing Statement, which notice shallspecify in reasonable detail the nature of the dispute(s), indicating thosespecific items that are in dispute (the “Disputed Items”). Allitems that are not Disputed Items shall be final, binding and conclusive forall purposes hereunder.     (B) During the 30-day period following Seller’s receipt of a Notice ofDisagreement from Buyer, Seller and Buyer shall use commercially reasonableefforts to resolve any Disputed Items. If, at the end of such 30-dayperiod, the parties have reached written agreement with respect to allmatters covered by a Notice of Disagreement, the Final Closing Statementshall be adjusted to reflect such written agreement and shall become finaland 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 writtenagreement with respect to all or any portion of such Disputed Items (thoseDisputed Items that remain in dispute at the end of such period are the“Unresolved Changes”), then Buyer and Seller shall promptly referthe Unresolved Changes to a mutually agreeable nationally recognizedindependent certified public accounting firm (the “Firm”) to make adetermination as to the subject matter of the Unresolved Changes. If Buyerand Seller fail to agree on a Firm within thirty (30) days after the end ofthe 30-day period specified in subsection (b)(3)(B) above, the Firm shall beselected by the American Arbitration Association. The Firm shall bedirected to issue its written decision as promptly as practicable and in anyevent within thirty (30) days following the submission of the UnresolvedChanges to the Firm for resolution, and such decision shall be final,binding and conclusive on the parties (the “Firm Determination”).Seller and Buyer each agree to fully cooperate with and provide anyinformation requested by such Firm. In the event Unresolved Changes aresubmitted to the Firm for resolution as provided herein, the fees, chargesand expenses of the Firm (the “Firm Expenses”) shall be borne andpaid equally by Buyer and Seller.     (4) On or before 12:00 noon E.D.T. on the fifth (5th) Business Day after theAdjusted Payment Amount shall have become final and binding or, in the case of adispute, 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 Amountthen Seller shall pay to Buyer an amount in dollars equal to such excess, plusinterest on such excess amount from the Closing Date to but excluding the paymentdate, at the Federal Funds Rate, or if the Adjusted Payment Amount is less than theEstimated Payment Amount Buyer shall pay to
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Seller an amount in dollars equal to such shortfall, plus interest on suchshortfall from the Closing Date to but excluding the payment date, at the FederalFunds Rate. If a payment is owed to Buyer pursuant to this Section 3(b)(4), suchpayment of the Adjusted Payment Amount shall be effected first, by release of fundsheld by the Escrow Agent in the Escrow Account, and second by wire transfer ofimmediately available funds from Seller to an account designated in writing by theBuyer within five (5) Business Days after the determination thereof. If a paymentis owed to Seller pursuant to this Section 3(b)(4), such payment of the AdjustedPayment Amount shall be made by wire transfer of immediately available funds fromBuyer to an account designated in writing by Seller within five (5) Business Daysafter the determination thereof.     (c) Allocation of the Purchase Price.     (1) Buyer shall prepare a proposed allocation of the Purchase Price among theAssets in accordance with Section 1060 of the Code, which proposed allocation shallbe delivered to Seller for review and comment within sixty (60) days following theClosing Date (“Proposed Allocation Statement”). Seller shall provide toBuyer in writing within ten (10) days of the receipt of such Proposed AllocationStatement any objections thereto.     (2) If, within ten (10) days following the receipt of the Proposed AllocationStatement, Seller does not dispute any items contained in the Proposed AllocationStatement, then the Proposed Allocation Statement shall be final and binding uponthe parties (“Final Allocation Determination”). In the event that Sellerdisputes any items contained in the Proposed Allocation Statement, such disputesshall be resolved in the following manner:     (A) Seller shall notify Buyer in writing (the “Notice of AllocationDisagreement”) of such dispute within ten (10) days following Seller’sreceipt of the Proposed Allocation Statement, which notice shall specify inreasonable detail the nature of the dispute, indicating those specific itemsthat are in dispute (the “Seller Disputed Items”). All items thatare not Seller Disputed Items shall be final, binding and conclusive for allpurposes hereunder.     (B) During the 15-day period following Buyer’s receipt of a Notice ofAllocation Disagreement, Seller and Buyer shall use commercially reasonableefforts to resolve any Seller Disputed Items. If, at the end of such 15-dayperiod, the parties have reached written agreement with respect to allmatters covered by a Notice of Allocation Disagreement, the ProposedAllocation Statement shall be adjusted to reflect such written agreement andshall become the Final Allocation Determination.     (C) If, at the end of the 15-day period specified in subsection(c)(2)(B) above, Buyer and Seller shall have failed to reach a writtenagreement with respect to all or any portion of such Seller Disputed Items
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(those Seller Disputed Items that remain in dispute at the end of suchperiod are the “Unresolved Allocation Changes”), then Buyer andSeller shall promptly refer the Unresolved Allocation Changes to a mutuallyagreeable Firm to make a determination as to the subject matter of theUnresolved Allocation Changes. If Buyer and Seller fail to agree on a Firmwithin 15 days after the end of the 15-day period specified in subsection(c)(2)(B) above, the Firm shall be selected by the American ArbitrationAssociation. The Firm shall issue its written decision as promptly aspracticable and in any event within 15 days following the submission of theUnresolved Allocation Changes to the Firm for resolution, and such decisionshall be final, binding and conclusive on the parties and become the FinalAllocation Determination. In the event Unresolved Allocation Changes aresubmitted to the Firm for resolution as provided herein, the costs ofengaging the Firm shall be paid by Buyer and Seller equally.     (3) Buyer and Seller and their Affiliates shall file all tax returns(including, but not limited to, Internal Revenue Service Form 8594) in all respectsand for all purposes consistent with such Final Allocation Determination. Sellershall use commercially reasonably efforts to deliver to Buyer all such documentsand other information as Buyer may reasonably request in order to prepare theProposed Allocation Statement contemplated by subsection 3(c)(1) above and any taxreturns for taxable periods beginning on or after the Closing Date. No party shalltake any position (whether in audits, tax returns or otherwise) that isinconsistent with such Final Allocation Determination, unless required to do so byapplicable Legal Requirement.     (d) Proration; Other Closing Date Adjustments.     (1) Except as otherwise specifically provided in this Agreement, it is theintention of the parties that Seller will operate the Branches for its own accountuntil 11:59 p.m., E.D.T., on the Closing Date, and that Buyer shall operate theBranches, hold the Assets and assume the Liabilities for its own account after theClosing Date.  Thus, except as otherwise specifically provided for in thisAgreement, items of income and expense 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 ofproration will be handled at the Closing as an adjustment to the Purchase Priceunless otherwise agreed by the parties hereto.     (2) For purposes of this Agreement, items of proration and other adjustmentsshall include, but not be limited to:  (i) rental payments under the Branch Lease;(ii) personal and real property Taxes and assessments; (iii) other Prepaid Expensesand items and accrued but unpaid liabilities, as of the close of business on theClosing Date; and (iv) safe deposit rental payments previously received by Seller.
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     **4. ****Payment of the Purchase Price****.**     (a) At the Closing, (i) if the Estimated Payment Amount as set forth on the DraftClosing Statement is a positive amount, Seller shall pay to Buyer an amount in dollars equalto such positive amount, or (ii) if the Estimated Payment Amount as set forth on the DraftClosing Statement is a negative amount, Buyer shall pay to Seller an amount in dollars equalto the absolute value of such negative amount.     (b) All payments to be made hereunder by one party to the other shall be made by wiretransfer of immediately available funds (to such account as the appropriate party shalladvise not later than two (2) Business Days prior to the Closing Date) on or before 12:00noon E.D.T on the date of payment.     (c) At the Closing, Seller shall deposit the Escrow Amount into the Escrow Account whichshall be held by the Escrow Agent pursuant to the terms of the Escrow Agreement, with onehalf of the Escrow Amount to be held for a term of twelve (12) months, and with one half ofthe Escrow Amount to be held for a term of twenty-four (24) months, each such periodcommencing on the Closing Date.     (d) If any instrument of transfer contemplated herein shall be recorded in any publicrecord before the Closing and thereafter the Closing does not occur, then at the request ofsuch transferring party the other party will deliver (or execute and deliver) suchinstruments and take such other action as such transferring party shall reasonably request torevoke such purported transfer.     **5. ****Closing****.**     (a) The consummation of the transactions contemplated by this Agreement (the“Closing”) will be held at Buyer’s offices at 4000 Smith Road, Suite 400, Cincinnati,Ohio 45209, as soon as reasonably practicable following the satisfaction or, where legallypermitted, the waiver of the conditions set forth in Section 7 and Section 8.The Closing may occur on August 31, 2009 or September 14, 2009 at Buyer’s option and withthe consent of Seller, and in no event later than October 31, 2009 or such later date as maybe mutually agreed to by the Parties (such date, the “Closing Date”).     (b) Unless the parties agree pursuant to Section 16(b) that the conversion of the dataprocessing with respect to the Branches and the Assets and Liabilities will be performedother than on the weekend immediately following the Closing Date, the Closing Date shall beon a Friday and the conversion will be completed prior to the opening of business on thefollowing Monday.     **6. ****Buyer’s and Seller’s Closing Deliverables****.**     (a) At the Closing, Seller shall deliver to Buyer the following:     (1) The deeds and all other instruments of conveyance as may be necessary tosell, transfer and convey all right, title and interest in and to the Premises toBuyer;
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     (2) A bill of sale substantially in the form of Exhibit A attachedhereto pursuant to which the Personal Property shall be transferred to Buyer;     (3) Subject to Section 19, a lease assignment and assumption agreementsubstantially in the form of Exhibit B attached hereto, with respect toeach of the Branch Lease (the “Lease Assignments”);     (4) The Assigned Contracts, Required Consents and other written agreements,contracts, leases and other documentation that relate to the Assets and Liabilitiesand the Safe Deposit Agreements;     (5) A certificate duly executed by the Secretary of Seller pursuant to whichsuch officer shall certify to (i) the due adoption by Seller’s board of directorsof resolutions attached to such certificate authorizing the execution and deliveryof this Agreement and the taking of all actions contemplated hereby, and (ii) theincumbency and true signatures of those officers of Seller duly authorized to acton its behalf in connection with the transaction contemplated by this Agreement andto execute and deliver this Agreement and the taking of all actions contemplatedhereby on behalf of Seller;     (6) The Records;     (7) Such instruments of assumption of Liabilities as are required toeffectively assign and transfer the obligations for the Liabilities to the Buyerand for Buyer to assume those Liabilities as provided herein, including, withoutlimitation, an assignment and assumption agreement in substantially the form setforth on Exhibit C attached hereto with respect to the Liabilities, dulyexecuted by Seller (the “Assignment and Assumption Agreement”);     (8) A bring-down of Schedule 4(a)(i) and Schedule 8;     (9) Seller’s resignation as trustee or custodian, as applicable, with respectto each IRA and/or Keogh Accounts, which is part of the Deposit Liabilities anddesignation of Buyer as successor trustee or custodian with respect thereto, ascontemplated by Sections 2(c);     (10) The certificate of Seller’s Chief Executive Officer required by Section8(f);     (11) The Draft Closing Statement (which shall have been furnished to Buyer nolater than the fifth Business Day prior to the Closing Date);     (12) Originals or copies of the Branch Lease fully executed by each partythereto;     (13) Executed consents of the landlords and lessors, as applicable, necessaryto assign the Branch Lease to Buyer, subject to Section 19 hereof;     (14) Executed copies of the Unconditional Releases;
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     (15) A power of attorney in substantially the form of Exhibit Dattached hereto;     (16) An ALTA form of owner policy of title insurance issued by the TitleCompany for the Premises, naming Buyer as insured having an effective date as ofthe Closing Date, in form and substance in accordance with Section 16(q);     (17) A certification of non-foreign status meeting the requirements ofTreasury Regulation 1.1445-2(b)(2), duly executed and acknowledged substantially inthe form of the sample certificates set forth in Treasury Regulation Section1.1445-2(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 keysfor safe deposit boxes, vaults and automated teller machines and combinations forall combination locks, appropriately tagged for identification and any vaultmanuals or specifications with respect to vaults and automated teller machines,together with a schedule listing same;     (21) A list, certified to by an authorized officer of Seller (acting in his orher capacity as an officer of Seller and not as an individual), setting forth allgarnishments, similar court orders, tax liens and orders of any Governmental Entityin effect with respect to the Deposit Liabilities;     (22) A payoff letter from the FHLB (in form and substance reasonablysatisfactory to Buyer) confirming that upon receipt of funds owed the FHLB andsecuring the FHLB Pledged Loans, the FHLB releases its liens and security interestsin the FHLB Pledged Loans and authorizes release of the Loan Documents relating tosuch FHLB Pledged Loans.     (23) If any of the Loans are pledged to the FR, a payoff letter from the FR(in form and substance reasonably satisfactory to Buyer) confirming that uponreceipt of funds owed the FR and securing the FR Pledged Loans, the FR releases itsliens and security interests in the FR Pledged Loans and authorizes release of theLoan Documents relating to such FR Pledged Loans.     (24) Such other Assets as shall be capable of physical delivery; and     (25) Such other documents as the parties may determine are reasonablynecessary to consummate the transactions contemplated hereby.
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     (b) At the Closing, Buyer will deliver to Seller the following:     (1) Certified copies of resolutions of Buyer’s board of directors authorizingthe execution and delivery of this Agreement and the consummation of thetransactions set forth in this Agreement;     (2) Such instruments of assumption of Liabilities as are required toeffectively assign and transfer the obligations for the Liabilities to the Buyerand for Buyer to assume those Liabilities as provided herein, including, withoutlimitation, the Assignment and Assumption Agreement, duly executed by Buyer;     (3) The certificate of Buyer’s Chief Executive Officer as required by Section7(f);     (4) Evidence of the Buyer Regulatory Approvals and the satisfaction of allrequired conditions of such Buyer 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 DepositLiabilities and the assumption of the fiduciary obligations of the trustee orcustodian with respect thereto, as contemplated by Section 2(c);     (6) the Estimated Payment Amount, if any; and     (7) Such other documents as the parties may determine are reasonably necessaryto consummate the transactions contemplated hereby.     (c) Loan Documents and Loan Files.     (1) Not later than three (3) Business Days following the Closing Date, Sellershall deliver to Buyer or its designee the Loan Files and Loan Documents(reasonably organized and cataloged), in imaged format, and no later than ten (10)Business Days following the Closing Date, Seller shall deliver to Buyer or itsdesignee the original hard copies of the Loan Agreements and Loan Documents(reasonably organized and cataloged). In addition, the parties agree that theinformation, promissory notes, other Loan Documents, Loan Agreements and otherdocuments or instruments necessary to complete the deliveries in Section6(a)(7) may not be available until immediately prior to or after the Closing.Accordingly, upon completion of the documents or instruments necessary to completethe deliveries in Section 6(a)(7) and delivery of same to Seller, Seller agrees topromptly execute such documents and to deliver same to Buyer as expediently aspossible, but in no event later than five (5) Business Days after Seller’s receiptof same. The parties hereto agree that failure to timely transfer the LoanAgreement, Loan Documents and the documents and instruments necessary to completethe deliveries in Section 6(a)(7) as set forth herein, shall entitle Buyer toexercise its rights and remedies under this Agreement, and under applicable law.Seller shall have no responsibility or liability for the Loan Files and LoanDocuments from and after the time such files are delivered by Seller to Buyer or toan independent third
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party designated by Buyer for shipment to Buyer. Seller shall not beresponsible for the cost of delivering any Loan Files or Loan Documents located atthe Branches at the Closing to any other location designated by the Buyer. Buyerand Seller shall share equally in the cost of delivering any and all Loan Files orLoan Documents that must be shipped to the Branches in connection with the Closing.     (2) Promptly upon execution of this Agreement, Buyer shall provide Seller inwriting with the exact name to which the Loans are to be endorsed, or whether anyLoans should be endorsed in blank. Seller will use its reasonable best efforts tocomplete such endorsements and deliver the Loan Documents, along with appropriateassignments of real property security instruments in recordable form andassignments of financing statements, at the Closing.     (d) Collateral Assignments and Filing. Seller shall take all such reasonableactions as requested by Buyer to assist Buyer in obtaining the valid perfection of a lien orsecurity interest in the collateral, if any, securing each Loan sold on the Closing Date infavor of Buyer or its designated assignee as secured party. Any such action shall be at thesole expense of Buyer, and Buyer shall reimburse Seller for all reasonable third party costsincurred in connection therewith.     (e) Premises Filings. On the Closing Date, Seller and Buyer shall file orrecord, or cause to be filed or recorded, any and all documents necessary in order that thelegal and equitable title to Premises as provided herein be duly vested in Buyer.     **7. ****Conditions Precedent to Seller’s Obligations****.**The obligations of Seller toconsummate the transactions contemplated by this Agreement are, at the option of Seller, subject tothe following conditions precedent that, at or before Closing:     (a) The Buyer Regulatory Approvals shall have been made or obtained and shall remain infull force and effect, and all statutory waiting periods applicable to the transactionscontemplated hereby shall have expired or terminated;     (b) Buyer shall have duly and timely performed its covenants and agreements required bythis Agreement to be performed 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 thisAgreement that are qualified as to materiality shall be true and correct and any suchrepresentations and warranties that are not so qualified shall be true and correct in allmaterial respects, in each case, at the Closing as though made at the Closing (except to theextent 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, ormaterially restricts, the consummation of the transactions contemplated by this Agreement ormaterially alters the terms of this Agreement;
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     (e) No Legal Proceedings shall have been instituted against Buyer or Seller where thedetermination of liability against such party would reasonably be expected to have a MaterialAdverse Effect or a material and adverse effect on the ability of such party to consummatethe 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 ExecutiveOfficer.     **8. ****Conditions Precedent to Buyer’s Obligations****.**The obligations of Buyer toconsummate the transactions contemplated by this Agreement are, at the option of Buyer, subject tothe following conditions precedent that, at or before Closing:     (a) The Seller Regulatory Notices shall have been made or obtained and shall remain infull force and effect, and all statutory waiting periods applicable to the transactionscontemplated hereby shall have expired or terminated, and no such Seller Regulatory Approvalshall have resulted in the imposition of a Materially Burdensome Regulatory Condition;     (b) Seller shall have duly and timely performed its covenants and agreements required bythis Agreement to be performed by Seller on or prior to the Closing Date in all materialrespects;     (c) Each of the representations and warranties of Seller contained or referred to inthis Agreement that are qualified as to materiality shall be true and correct and any suchrepresentations and warranties that are not so qualified shall be true and correct in allmaterial respects, in each case, at the Closing as though made at the Closing (except to theextent 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, ormaterially impacts, the consummation of the transactions contemplated by this Agreement ormaterially alters the terms of this Agreement;     (e) No Legal Proceedings shall have been instituted against Buyer or Seller where thedetermination of liability against such party would reasonably be expected to have a MaterialAdverse Effect or a material and adverse effect on the ability of such party to consummatethe 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 ChiefExecutive Officer;     (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, preparedafter the date hereof. Buyer shall report to Seller the results of
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the Buyer’sPhase I Report, together with any objections (an “Objection”) to any matterrelated to the environmental condition of the Premises or the Branches (other thaninformation made available to Buyer by Seller prior to the date of this Agreement)that Buyer reasonably believes could, individually, or in the aggregate, (i)materially and adversely affect Buyer’s continued use of the Premises or theBranches as a branch, or (ii) have a Material Adverse Effect on Buyer. Buyer shallprovide the report together with any Objections to Seller no later than forty-fivecalendar 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 theaggregate, require the expenditure of $100,000 or more to remediate, as determinedby Buyer in its reasonable discretion, Buyer shall promptly give written noticethereof to Seller describing the Objection or Objections in detail and Seller shallhave 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 orunwilling to cure any such Objection to Buyer’s reasonable satisfaction, then inBuyer’s sole and absolute discretion, and upon written notice to Seller, suchnotice to be received by Seller no later than ten (10) calendar days after Buyer isnotified in writing of Seller’s inability or unwillingness to cure any suchObjection: (a) Buyer shall receive title or a leasehold interest in the Premises orBranch Lease, respectively, in their then existing condition with a correspondingadjustment to the 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 thePremises related to such Objection(s) and Buyer may lease such Premises from Selleron terms mutually agreeable to both parties with a corresponding mutually agreeableadjustment to the Purchase Price.     (h) All Title Objections shall have been cured, waived by Buyer or become an InsuredException, in each case, as contemplated by Section 16(q); and     (i) In the aggregate, the amount of principal and accrued interest outstanding on theLoans as of the Closing Date must exceed the Loan Floor.     (j) Seller shall have delivered the closing deliverables set forth in Section6(a).     **9. ****Representations and Warranties of Seller****.**Seller represents and warrants to Buyeras follows, subject to the exceptions disclosed in writing in the Seller Disclosure Schedule anddelivered as of the date hereof:     (a) Corporate Organization. Seller is an Indiana state chartered commercialbank and trust company duly organized and validly existing under the laws of the State ofIndiana, and is entitled to own its properties where such properties are now owned andoperated and has the requisite power and authority to conduct its business as now being
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conducted at the Branches. Seller is an insured depository institution pursuant to theprovisions of the Federal Deposit Insurance Act, as amended.     (b) Financial Statements; Call 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 Parent as ofDecember 31, 2008 and 2007 and the related audited consolidated statements ofoperations, stockholders’ equity and comprehensive income (loss) and cash flows forthe years ended December 31, 2008 and 2007, inclusive (collectively the“Audited Financial Statements”), accompanied by the audit report of Ernst &Young LLP;     (2) The unaudited consolidated balance sheets of 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 March31, 2009 and the unaudited consolidated balance sheets of Seller and Seller Parentand the related unaudited consolidated statements of operations, stockholders’equity and comprehensive income (loss) and cash flows of Seller Parent for eachcalendar quarter ended between March 31, 2009 and the Closing Date (collectivelythe “Unaudited Financial Statements” and together with the AuditedFinancial Statements, the “Financial Statements”);     (3) The December 31, 2008 Call Report of the Seller and the Call Report of theSeller for each calendar quarter ended between December 31, 2008 and the ClosingDate submitted to the Board of Governors of the Federal Reserve System(collectively the “Reports”).     The Financial Statements and the Reports were prepared on a consistent basis and, withrespect to the Financial Statements, in accordance with GAAP (subject, in the case of theUnaudited Financial Statements, to recurring audit adjustments, normal in nature and notmaterial in amount, and the absence of notes to the financial statements). The FinancialStatements and the Reports fairly and accurately present the financial condition and resultsof operations of Seller Parent and Seller in all material respects for their respectivefiscal periods or as of their respective dates, are correct and complete and are consistentwith the books and records of Seller Parent and Seller. The books and records of SellerParent and Seller are correct and complete in all material respects, and have been, and arebeing, maintained in all material respects in accordance with GAAP and any other LegalRequirement and accounting requirements.     (c) Title to Assets. Seller is the lawful owner of, or in the case of leasedAssets, has a valid leasehold interest in, each of the Assets, and the Assets are not subjectto any Lien other than Permitted Liens. Subject to and upon the execution of the documents oftransfer, conveyance and assignment by Seller as provided herein at the Closing, and thereceipt 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 inand to the Assets free and clear of any Lien other than Permitted Liens and subject to theterms and conditions hereof, on the Closing Date, Buyer will acquire good
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and marketabletitle 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 ownershipinterest in real property. The Premises constitute all of the real estate owned or leased bySeller on which Seller maintains the Branches.     (e) Environmental Matters.     (1) The Premises have been operated by Seller in material compliance with allApplicable Environmental Laws, including but not limited to Legal Requirementsrelating to the use, handling, release, storage and disposal of HazardousSubstances. Seller has not, in violation of any Legal Requirement, used, handled,stored or disposed of Hazardous Substances on the Premises or elsewhere, nor hasSeller, in violation of any Legal Requirement, discharged or released any HazardousSubstances upon the Premises or elsewhere, in violation of any ApplicableEnvironmental Laws or that would require remedial action or otherwise imposeliability. 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 LegalRequirement, engaged in any such use, handling, storage, disposal, discharge orrelease of any Hazardous Substance on the Premises. To Seller’s Knowledge, exceptas set forth in Schedule 9(e) of the Seller Disclosure Schedule, thePremises have been and are free of any Hazardous Substances, soil, soil vapor, andgroundwater contamination in violation of any Legal Requirement, or any undergroundor 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 42U.S.C. § 9601(20) and similar laws under applicable states’ statutes, including butnot limited to not participating in management nor otherwise “controlling” or“directing” any borrower such that Seller would be subject to any liability withrespect to any environmental matters in connection with any security, borrower’soperations or any borrower’s property; and Seller has not foreclosed on a loan ortaken over security in a manner that would result in liability under EnvironmentalLaws, including but not limited to that it has taken “reasonable steps” to divestitself of any such properties at the earliest practicable, commercially reasonabletime, on commercially reasonable terms.     (3) Except as set forth in Schedule 9(e) of the Seller DisclosureSchedule, there are no legal, administrative, arbitration or other proceedings,lawsuits, notices of violations, claims, actions, causes of action, environmentalinvestigations or remediation activities, private or governmental, of any natureseeking to impose, or that reasonably could be expected to result in theimposition, on the Seller of any liability or obligation under any ApplicableEnvironmental Laws, pending or, to the Knowledge of the Seller, threatened againstthe Seller. To the Knowledge of the Seller, there is no reasonable basis for anysuch proceeding, claim, action or governmental investigation that would impose anyliability or obligation on the Seller. Neither the Seller nor the
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Premises issubject to any agreement, order, award, judgment, decree, letter or memorandum byor with any court, governmental authority, regulatory agency, arbitrator, or thirdparty imposing any unsatisfied liability or unmet obligation pursuant to or underany Applicable Environmental Laws.     (f) Loans.     (1) All Loans have been made and maintained (including the risk rating of theLoans) in the ordinary course of business, in accordance with Seller’s customarylending standards and written loan policies and in compliance with all applicableLegal Requirements. No Loan is usurious and each Loan either meets or is exemptfrom any usury laws or regulations. With respect to the Loans, Seller has compliedin all material respects with any applicable federal or state laws, regulations orother requirements on consumer credit, equal credit opportunity andtruth-in-lending.     (2) Seller’s loan files for the Loans (the “Loan Files”) contain alloriginally executed notes, leases and other evidences of any indebtedness,including without limitation all originally executed loan agreements, loanparticipation agreements and certificates, control agreements, security agreements,mortgages, guarantees, UCC financing statements and similar documents evidencingcollateral or other financial accommodations relating to the Loans (the “LoanDocuments”). The Loan Files accurately reflect the payment history through theapplicable date thereof, the outstanding balance of the Loan, as of the dateindicated 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 dateindicated therein.     (3) No taxes or other liability of Seller shall accrue against or be collectedfrom Buyer out of any Loan by reason of the purchase thereof by Buyer. Seller haspaid or caused to be paid any and all license, franchise, intangible, stamp orother tax or fee due and owing to any state where a Loan originated, or anypolitical 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 orrepresentatives has been guilty of any civil or criminal fraud with respect to thecreation of any Loan or with respect to the transfer, assignment and sale of thesame to Buyer hereunder.     (5) No Loan is (i) thirty (30) days or more past due in the payment of anyrequired principal or interest, (ii) on non-accrual status, (iii) classified, or(iv) otherwise an Excepted Loan. All Loan Documents are correct in amount. To theKnowledge of Seller, the Loan Documents contain genuine signatures of the partiesthereto, including, but not limited to makers and endorsers and of Seller. TheLoan Documents are supported by adequate consideration and are enforceable by Buyeror its successors and assigns in accordance with their respective terms (except assuch enforceability may be limited by bankruptcy or
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creditors’ relief laws ofgeneral application), represent the valid and legally binding obligation of theobligor, maker, co-maker, guarantor, endorser or debtor (such Person referred to asan “Obligor”) thereunder, and are evidenced by legal, valid and bindinginstruments executed by the Obligor, each of which at the time of such executionhad, to the Knowledge of Seller, capacity to contract, and none of the obligationsrepresented by the Loan Documents have been modified, subordinated, altered,forgiven, discharged or otherwise disposed of except as indicated by the LoanDocuments and contained among the Loan Files, as applicable, or as a result ofbankruptcy or other debtor’s relief laws of general application. No Obligor hasany right of rescission pursuant to the Truth in Lending Act or other LegalRequirement which has not expired or otherwise terminated. To the Knowledge ofSeller, no maker, signatory or guarantor on any Loan is in bankruptcy and none ofthe Loans are subject to any offsets or claims of offset, or claims of otherliability on the part of Seller.     (6) Except for FHA loans, no Loans have been sold subject to an agreement torepurchase.     (7) The servicing practices of Seller used with respect to the Loans have beenprudent, safe and sound servicing practices and consistent with commerciallyreasonable practices in the industry and have been in compliance in all materialrespects with all Legal Requirements.     (8) No borrower, customer or other party in connection with the Loans hasnotified 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 DisclosureSchedule, the Seller has made no commitment to make or modify the terms andconditions of any Loan other than as set forth in the Loan Files. Except as setforth on Schedule 9(f) of the Seller Disclosure Schedule, no Obligor underany Loan is entitled to any further advances of loan proceeds. As of the Closing,no Loan is cross-collateralized with any other loan. Any insurance with respect toany Loan is in full force and effect and Seller has complied with all applicableprovisions of any insurance contract or applicable Legal Requirement with respectto such insurance.     (10) With respect to any Loan secured by real property: i) the mortgage is a valid and subsisting lienon the property described in it;  ii) the mortgaged property is free and clear ofall encumbrances and liens having priority over the mortgage exceptfor senior loans described in the Loan Documents and liens for realestate taxes and special assessments, that are not yet due andpayable;  iii) the Loan Documents include either an opinionof counsel or a mortgage title insurance policy insuring the mortgageand such
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   title insurance policy is on a current ALTA form (or othergenerally acceptable form) issued by a generally acceptable insurancecompany;  iv) at the time of origination, the mortgagedproperty was, and Seller has not received written notification thatthe mortgaged property is not, free and clear of all mechanic’s liens,materialmen’s liens or similar types of liens or the mortgage titleinsurance policy provides Buyer with substantially the same protectionas this warrant;  v) all taxes, government assessments, insurancepremiums, water, sewer and municipal charges, leasehold payment orground rents that have become due and payable with respect to themortgaged property have been paid or an escrow of funds sufficient topay them has been established;  vi) Seller has no Knowledge that any improvementon the mortgaged property is in violation of any applicable zoning lawor regulation;  vii) Except as set forth on Schedule 9(f)of the Seller Disclosure Schedule, Seller has no Knowledge that themortgaged property is damaged by fire, wind or other cause of loss andthere are no proceedings pending for the partial or total condemnationof the property;  viii) to Seller’s Knowledge, any improvements thatare included in the appraised value of the mortgaged property aretotally within the property’s boundaries and building restrictionlines and no improvements on adjoining property encroach on themortgaged property;  ix) if the Loan is secured by a single familyresidence and was closed on legal documents other than the currentFannie Mae/Freddie Mac uniform instruments, then with respect to eachsuch Loan, Seller hereby makes the representations and warrantiescontained in Section A2-2.1-03 of Chapter A2-2 of the Fannie MaeSingle Family 2009 Selling Guide;  x) except as set forth on Schedule9(f)(x) of the Seller Disclosure Schedule, a casualty insurancepolicy on the mortgaged property is in effect, which is written by agenerally acceptable insurance company and provides fire and extendedcoverages for an amount at least equal to the amount required bySeller’s loan policies, and, provided, that with respect to themortgaged properties listed on Schedule 9(f)(x) of the Seller
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   Disclosure Schedule, Seller shall have thirty (30) days from theexecution of this Agreement to obtain such casualty insurance, and inthe event and to the extent Seller does not obtain casualty insurancewith respect to a mortgaged property listed on Schedule9(f)(x) of the Seller Disclosure Schedule within thirty (30) daysof the execution of this Agreement, such mortgaged properties shall bedeemed not to be listed on Schedule 9(f)(x) of the SellerDisclosure Schedule (for purposes of determining whether a breach hasoccurred and for purposes of calculating the amount of the damages)and therefore Seller shall be liable to Buyer for any Losses thatresult from the breach of this representation and warranty withrespect to such mortgaged properties in accordance with Section 20 ofthis Agreement;  xi) except as set forth on Schedule9(f)(xi) of the Seller Disclosure Schedule, a flood insurancepolicy written by a generally acceptable insurance company, whichpolicy meets current guidelines of the Federal InsuranceAdministration and is for an amount at least equal to the amountrequired by Seller’s loan policies, is in effect on the mortgagedproperty if any part of it is in an area listed in the FederalRegister by the Federal Emergency Management Agency as an area withspecial flood hazards, and if insurance is available, and, provided,that with respect to the mortgaged properties listed on Schedule9(f)(xi) of the Seller Disclosure Schedule, Seller shall havethirty (30) days from the execution of this Agreement to obtain suchflood insurance, and in the event and to the extent Seller does notobtain flood insurance with respect to a mortgaged property listed onSchedule 9(f)(xi) of the Seller Disclosure Schedule withinthirty (30) days of the execution of this Agreement, such mortgagedproperties shall be deemed not to be listed on Schedule9(f)(xi) of the Seller Disclosure Schedule (for purposes ofdetermining whether a breach has occurred and for purposes ofcalculating the amount of the damages) and therefore Seller shall beliable to Buyer for any Losses that result from the breach of thisrepresentation and warranty with respect to such mortgaged propertiesin accordance with Section 20 of this Agreement;  xii) to Seller’s Knowledge, there is no materiallitigation, proceeding or governmental investigation pending, or anyorder, injunction or decree outstanding, existing or relating to themortgaged property;  xiii) to Seller’s Knowledge, the mortgagedproperty has never been used for the storage, treatment or disposal ofany material amount of Hazardous Substances (other than by tenants inthe ordinary course of tenancy or the owner in the ordinary course ofbusiness, and such storage, treatment or disposal of HazardousSubstances is or was in all material respects in accordance with allapplicable Legal Requirements), nor has such mortgaged property everbeen listed by any governmental agency as containing any HazardousSubstance in violation of Legal Requirement unless such HazardousSubstance has been remediated;
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 xiv) with respect to Loans secured by singlefamily residences, the Loan Documents do not grant more favorablerights to the borrower on default and foreclosure, or less favorablerights to the note holder with respect to property insurance,leasehold interests, other liens on the mortgaged property,condemnation proceedings, or other proceedings that result in a fullor partial taking of the property, or any other compensation,settlement, or award of damages that is the result of damage to, ordestruction of, the mortgaged property than those granted in theFannie Mae/Freddie Mac standard uniform instruments for the applicablejurisdiction(s);  xv) if the mortgaged property is a single familyresidence or a multifamily apartment project and the Loan is apermanent loan, then the Loan meets the underwriting requirements andotherwise conforms to all of the applicable requirements contained inthe Fannie Mae Selling and Servicing Guide (for those Loans secured bysingle family residences) and the Fannie Mae Delegated Underwritingand Servicing Guide (for those Loans secured by multifamily apartmentprojects)  xvi) the Loan Documents expressly allow thenoteholder to advance at any time sums for unpaid insurance premiums,property taxes, or any other payments necessary to protect the valueof the mortgaged property or the noteholder’s rights in the mortgagedproperty and permit the noteholder to collect such amounts from theborrower on a deferred basis; and  xvii) the Loan Documents obligate the borrower tomaintain the mortgaged property in a way that prevents deteriorationand to repair promptly any damage to the mortgaged property, whetheror not such damage is covered by insurance.     (11) The Seller has properly perfected or caused to be properly perfectedvalid and enforceable security interests, liens, or other interests in anycollateral securing the Loans, as applicable, and such proper perfection continuesto be in effect, such security interests, liens, or other interests are assignableand have the priority reflected in the Seller’s books and records and each suchLoan contains customary and enforceable provisions such that the rights andremedies of the holder thereof shall be adequate for the practical realizationagainst any collateral securing such Loan.     (12) The Seller and any other party that held any of the Loans were, at alltimes during which the holder held the Loan, as applicable, authorized to transactbusiness in the jurisdiction where any real property securing the applicable Loanis located. However, if Seller or any other party that held a Loan was notauthorized to do business in the jurisdiction where any real property securing anapplicable Loan is located, then Seller represents and warrants that none of thefollowing activities of Seller or other parties constituted doing business in thatjurisdiction: lending the mortgage funds,
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acquiring the Loan, holding the Loan, ortransferring the Loan in whole or to the extent of a participation interest. TheSeller is the sole owner and holder of the Loans, has all power and authority tohold the Loans and has good and marketable title to the Loans free and clear of anyLien other than Permitted Liens. The Seller has the requisite power and authorityto sell and assign the Loans to Buyer as contemplated hereby and Seller’s right tosell and assign is not subject to any other party’s interest or to an agreementwith any other party.     (g) Deposit Liabilities. The Deposit Liabilities are genuine and enforceableobligations of Seller and have been originated or extended and administered in all materialrespects in compliance with the documents governing the relevant type of Deposit Liabilitiesand all Legal Requirements, including without limitation, the Truth in Savings Act andregulations promulgated thereunder. The Deposit Liabilities are insured by the FDIC throughthe Deposit Insurance Fund to the fullest extent provided for by applicable Legal Requirementand all premiums and assessments required to be paid in connection with such insurance havebeen paid when due. All interest has been properly accrued on the Deposit Liabilities andSeller’s records accurately reflect such accrual of interest. Except as set forth onSchedule 9(g) of the Seller Disclosure Schedule, Seller does not have any Knowledgeof any loss or potential loss of any material business or customers related to the Loans orthe Deposit Liabilities.     (h) Branch Business.     (1) The business at the Branches has been conducted in material compliancewith Seller’s policies and procedures and in material compliance with all LegalRequirements.     (2) Except as set forth on Schedule 9(h) of the Seller DisclosureSchedule, there are no Legal Proceedings or Orders entered, promulgated orpending, or, to the Knowledge of Seller, threatened, against or affecting theAssets, Liabilities, or any of the Branches, or the business conducted by Seller atany of the Branches, at law or in equity or otherwise, and there are no unsatisfiedjudgments of record against Seller. Except as set forth on Schedule 9(h) ofthe Seller Disclosure Schedule, there are no obligations or liabilities (whether ornot accrued, contingent or otherwise) or, to the Knowledge of Seller, facts orcircumstances that would reasonably be expected to result in any claims against orobligations or liabilities of Seller with respect to the Branches, the Assets orLiabilities.     (i) Regulatory Approval; Regulatory Agreement.     (1) Except as set forth on Schedule 9(i)(1) of the Seller DisclosureSchedule, there are no pending, or, to the Knowledge of Seller, threatened, LegalProceedings involving Seller Parent or Seller pending before any GovernmentalEntity that would reasonably be expected to (a) have the effect of hindering ordelaying the Closing, (b) affect the ability of the parties hereto to consummatethe transactions contemplated hererby, or (c) impose restrictions,
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limitations orobligations on the Assets, Liabilities, Branches or the conduct of the business byBuyer at the Branches following the Closing.     (2) Neither Seller Parent nor Seller has received any indication from anyGovernmental Entity that such Governmental Entity would oppose or refuse regulatoryapproval regarding the execution of this Agreement by Seller Parent and Seller andthe consummation of the transactions contemplated herein by Seller Parent andSeller, and to the Knowledge of Seller there is no reason relating to Seller orSeller Parent for any such opposition or approval.     (3) Except as set forth on Schedule 9(i)(3) of the Seller DisclosureSchedule, neither Seller nor Seller Parent is subject to any cease-and-desist orother order issued by, or a party to any written agreement, consent agreement ormemorandum of understanding with, or a party to any commitment letter or similarundertaking to, or subject to any order or written directive by, or been arecipient of any supervisory letter from, or has adopted any board resolutions atthe request of, any Governmental Entity (each of the foregoing, a “RegulatoryAgreement”), nor has the Seller been advised in writing by any GovernmentalEntity that it is considering issuing or requesting any Regulatory Agreement that,in each case, would reasonably be expected to (a) have the effect of hindering ordelaying the Closing, (b) affect the ability of the parties hereto to consummatethe transactions contemplated hereby, or (c) impose restrictions, limitations orobligations on the Assets, Liabilities, Branches or the conduct of the business byBuyer at the Branches following the Closing. The Regulatory Agreements set forthon Schedule 9(i)(3) of the Seller Disclosure Schedule remain in full forceand effect as of the date hereof.     (4) Seller has been in compliance and continues to be in material complianceas of the date hereof with the Regulatory Agreements set forth on Schedule9(i)(3) of the Seller Disclosure Schedule.     (j) Power, Authority and Enforceability. Seller has the corporate power andauthority to enter into, deliver and perform this Agreement and any instruments or otherdocuments executed pursuant hereto. This Agreement and any instruments or other documentsexecuted pursuant hereto, and the execution, delivery and performance hereof and thereof havebeen 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 dueauthorization, execution and delivery by Buyer, constitutes a valid and binding obligation ofSeller, enforceable against Seller in accordance with its terms, except as enforcement may belimited by receivership, conservatorship and supervisory powers of bank regulatory agenciesgenerally, as well as bankruptcy, insolvency, reorganization, moratorium or other laws ofgeneral applicability relating to or affecting creditors’ rights, or the limiting effect ofrules of law governing specific performance, equitable relief and other equitable remedies orthe waiver of rights or remedies.
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     (k) No Conflict. The execution, delivery and performance of this Agreement andany 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 thisAgreement as set forth in Schedule 9(k)(2) of the Seller DisclosureSchedule (the “Seller Regulatory Notices”), constitute a breach orviolation of, or default under, any Legal Requirement, Order or GovernmentalAuthorization to which Seller is subject, which breach, violation or default,individually or in the aggregate, would reasonably be expected to have a MaterialAdverse Effect, or     (3) subject to the receipt of all consents required by this Agreement as setforth on Schedule 9(k)(3) of the Seller Disclosure Schedule (the“Consents” and together with the Seller Regulatory Notices collectivelyreferred to as, the “Required Consents”), constitute a breach or violationof, or default under, any agreement or instrument of Seller or to which Seller issubject or by which Seller is otherwise bound, which breach, violation or default,individually or in the aggregate, would reasonably be expected to have a MaterialAdverse Effect, or     (4) result in the creation of any Lien upon any of the Assets.     (l) Licenses and Permits. Seller has all material Governmental Authorizationsnecessary for the lawful conduct of its business at each of the Branches as now conductedand, except as would not individually or in the aggregate be reasonably expected to have aMaterial Adverse Effect, all such Governmental Authorizations, are valid and in good standingand, to the Knowledge of Seller, are not subject to any suspension, modification orrevocation or proceedings related thereto.     (m) Required Consents. Other than the Seller Regulatory Notices, 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 bySeller and the consummation of the transactions contemplated by this Agreement by Seller.Other than the Consents, there are no consents or approvals of any third party required to beobtained in connection with the execution and delivery of this Agreement by Seller and theconsummation of the transactions contemplated by this Agreement by Seller.     (n) Personal Property. Seller has valid title to the Personal Property, freeand 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 isin good working order, ordinary wear and tear excepted, and is fit for the purpose it is usedfor by Seller in the conduct of the business of the Branches.     (o) Employment; Labor.
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     (1) Seller has provided or made available to Buyer a complete list of allemployees employed at the Branches as of the date hereof and a true and correctcopy of each such employee’s complete employment file. All employment files havebeen maintained in compliance in all material respects with all applicable LegalRequirements regarding employment. Except as set forth on Schedule 9(o) ofthe Seller Disclosure Schedule, there are no employment agreements, non-competeagreements or other contracts or arrangements for the performance of personalservices at the Branches, with employees employed or independent contractors orconsultants retained, at the Branches.     (2) Seller has not received services in connection with the operation of anyof the Branches from any individual whom Seller treated as an independentcontractor, but who should have been treated as a common-law employee.     (3) Seller has complied with all Legal Requirements relating to the employmentof its employees at the Branches in all material respects, including any provisionsthereof relating to: (i) wages, hours, bonuses, commissions, termination pay,vacation pay, sick pay, fringe benefits, employee benefits, health insurancecontinuation (COBRA), and the payment and/or accrual of the same and all insuranceand all other costs and expenses applicable thereto; (ii) unlawful, wrongful, orretaliatory or discriminatory employment or labor practices; (iii) occupationalsafety and health standards; or (iv) plant closing, mass layoff, immigration,workers’ compensation, disability, unemployment compensation, whistleblower andother employment Legal Requirements.     (4) Seller has not engaged in any “mass layoff” or “plant closing” (as definedby applicable federal and state WARN laws) within the six months prior to theClosing for any of the Branches, either individually or collectively.     (5) Seller is not a party to any collective bargaining agreement or otherlabor union contract applicable to its employees. There are and have been nostrikes, slowdowns, work stoppages or lockouts, by or with respect to any of theemployees of Seller in connection with the operation of the business. Seller hasnot agreed to recognize any union or other collective bargaining representative,and no union or other collective bargaining representative has been certified asthe exclusive bargaining representative of any of Seller’s employees. There is nocurrent union representation matter involving employees of Seller, and, to Seller’sKnowledge, there is no activity or proceeding of any labor organization (orrepresentative thereof) or employee group to organize any such employees.     (6) Except as set forth on Schedule 9(o) of the Seller DisclosureSchedule, no employee of Seller at any of the Branches is party to, or is otherwisebound by, any agreement, including any confidentiality, non-competition,non-solicitation, or proprietary rights agreement between such employee and anyother Person which materially adversely affects or will materially adversely affectthe employee’s ability to perform duties as an employee of Buyer following theClosing.
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     (7) No employee of Seller at any of the Branches has asserted or threatened toassert any claim against Seller or any of Seller’s officers, directors, or managers(whether under Legal Requirement, any employment agreement or otherwise) on accountof 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 timeoff; (iv) alleged unlawful, unfair, wrongful, retaliatory or discriminatoryemployment or labor practices; (v) breach of contract arising under an individualagreement or any other employment covenant whether express or implied; (vi) allegedviolation of any law regarding minimum wages, maximum hours of work, or meal andrest 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 at each of the Branches are authorized to work inthe United States and a Form I-9 has been properly completed and retained withrespect to each of Seller’s current and former employees at each of the Branches.     (9) The employees of Seller at the Branches who have (or have had) access toconfidential and/or proprietary information of Seller have executed confidentialityagreements that adequately protect Seller’s interest therein;     (10) Except as set forth on Schedule 9(o) of the Seller DisclosureSchedule, the employment of each employee of Seller at the Branches is terminableat will without cost to Seller except for payment of accrued salaries or wages andvacation pay. No current or former employee of Seller at the Branches has anyright to be rehired by Seller prior to its hiring an individual not previouslyemployed by Seller.     (11) All employees of Seller at the Branches have been or will have been, onor before the Closing, paid in full by Seller for all earned wages, salaries,bonuses, vacation pay, sick pay, and other compensation of any kind for servicesperformed on behalf of Seller up to and including the Closing Date, and will bepaid as soon as administratively possible following the Closing Date for allcommissions and incentives earned prior to the Closing Date.     (12) To Seller’s Knowledge, no officer or other key employee of Seller at theBranches intends to terminate employment with Seller prior to the Closing. Sellerhas not taken any action which was calculated to dissuade any present employees,representatives or agents of Seller at the Branches from working for Buyerfollowing the Closing.     (p) Tax Matters. Except as set forth in Schedule 9(p) of the SellerDisclosure Schedule:
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     (1) Seller and each of its Affiliates has filed all material tax returns thatit is required to file with respect to the Branches or the Assets (taking intoaccount any extensions of a required filing date). All such tax returns werecorrect and complete in all respects. All taxes owed by Seller or any of itsAffiliates (whether or not shown on any tax return) with respect to the Branches orthe Assets have been paid. Neither Seller nor any of its Affiliates is currentlythe beneficiary of any extension of time within which to file any tax return withrespect to the Branches or the Assets. There are no Liens on any of the Branchesor the Assets that arose in connection with any failure (or alleged failure) to payany tax.     (2) Seller has withheld and paid all taxes required to have been withheld andpaid in connection with amounts paid or owing to any employee, independentcontractor, creditor, stockholder, or other third party with respect to theBranches.     (3) There is no dispute or claim concerning any tax liability of Seller andany of its Affiliates (including a claim made by an authority in a jurisdictionwhere Seller does not file tax returns that Seller is or may be subject to taxationby that jurisdiction) with respect to the Branches or the Assets either (A) claimedor raised by any authority in writing or (B) as to which any of the directors andofficers (and employees responsible for tax matters) of Seller have Knowledge basedupon personal contact with any agent of such authority. Schedule 9(p) ofthe Seller Disclosure Schedule lists all material federal, state, local and foreignincome tax returns filed for each of the last five (5) years with respect toSeller, indicates any tax returns that have been audited, and indicates any taxreturns that currently are the subject of audit. Seller has delivered to the Buyercorrect and complete copies of all its income tax returns for the last five (5)years, examination reports, and statements of deficiencies assessed against oragreed to by Seller.     (4) Neither Seller nor any of its Affiliates has waived any statute oflimitations in respect of taxes or agreed to any extension of time with respect toa tax assessment or deficiency, in each case with respect to the Branches or theAssets, that will be binding on Buyer after the Closing.     (q) Intellectual Property.     (1) Set forth on Schedule 9(q)(1) of the Seller Disclosure Schedule isa complete description of the Intellectual Property that will be licensed by Sellerto Buyer at Closing (the “Licensed IP”), including a true and complete listof (i) all worldwide registrations made by or on behalf of the Seller of anytrademarks, service marks, Internet domain names or Internet or World Wide Web URLsor 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 takenpursuant to applicable Legal Requirements by the Seller to secure, perfect orprotect its interest in the Licensed IP.
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     (2) Seller owns, free and clear of any liens, all rights, title and interestin and to all Licensed IP. To the Knowledge of Seller, the Licensed IP are validand subsisting, in full force and effect in all material respects, and have notbeen canceled, expired or abandoned. Except as set forth on Schedule9(q)(2) of the Seller Disclosure Schedule, no registration or application withrespect to any Licensed IP is subject to any maintenance fees or taxes or actionsfalling due, including without limitation, the filing of an affidavit of use,renewal or response to an official action, during the Phaseout Period. To theKnowledge of Seller and Seller Parent, no Person is challenging, infringing on orotherwise violating any right of Seller or Seller Parent with respect to anyLicensed IP. To the Knowledge of Seller and Seller Parent, in the four (4) yearsimmediately preceding the date of this Agreement, Seller has not received anywritten notice of any pending, existing or threatened claim, action or proceedingwith 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 theKnowledge of Seller and Seller Parent, no Licensed IP is being used or enforced ina manner that would result in the abandonment, cancellation or unenforceability ofsuch Licensed IP or right.     (r) Assigned Contracts.     (1) Seller has made available to Buyer true, complete and accurate copies ofthe Assigned Contracts, together with all amendments, modifications or supplementsthereto, including any assignments thereof.     (2) The Assigned Contracts are the valid and binding obligation of Seller, andto Seller’s Knowledge, of each other party thereto; and, except as would notreasonably be expected to have a Material Adverse Effect, there does not exist withrespect to Seller’s obligations thereunder, or, to Seller’s Knowledge, with respectto the obligations of each other party thereto, any default, or event or conditionwhich constitutes or, after notice or passage of time or both, would constitute adefault on the part of Seller or such other party, as applicable, under theAssigned Contracts.     (s) No Insolvency or Insolvency Proceeding.  Seller is not insolvent and theconsummation of the transactions contemplated by this Agreement shall not render Sellerinsolvent. Seller has now, and will have as of the Closing, sufficient capital and net worthto meet its obligations as they become due and payable. Seller has liquid financialresources adequate to consummate the transactions contemplated herein. Seller has not enteredinto this Agreement with the actual intent to hinder, delay or defraud any creditor or anyother Person.  There has been no voluntary insolvency, bankruptcy, receivership,custodianship, liquidation, dissolution, reorganization, assignment for the benefit ofcreditors or similar proceeding (an “Insolvency Proceeding”) commenced with respectto Seller. As of the date of this Agreement, Seller is not currently planning to commence anInsolvency Proceeding. As of the date of this Agreement, to the Knowledge of Seller, no otherPerson is currently planning to commence an Insolvency Proceeding with respect to Seller.  
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     (t) No Adverse Change. Except as disclosed in the representations andwarranties made hereunder, since December 31, 2008, there has been no Material Adverse Effectnor any event or condition that has had, nor has a reasonable possibility of having in thefuture, a Material Adverse Change, since the date of the Audited Financial Statements.     (u) Brokers. Seller has not employed or contracted with any broker or finder orincurred any liability for brokerage fees, commissions, finders’ fees or other like paymentin connection with the transactions contemplated hereunder, except for any liability, fee andcommission to Stifel, Nicolaus & Company (“Seller Financial Advisor”) for whichSeller shall be solely liable.     (v) Limitations on Representations and Warranties. Except for therepresentations and warranties specifically set forth in this Section 9, neither Seller norany of its agents, Affiliates or representatives, nor any other Person makes or shall bedeemed to make any representation or warranty to Buyer, express or implied, at law or inequity, with respect to the transactions contemplated hereby.     **10. ****Reserved**.     **11. ****Representations and Warranties of Buyer****.**Buyer represents and warrants to Selleras follows, subject to the exceptions disclosed in writing in the Buyer Disclosure Schedule anddelivered as of the date hereof:     (a) Corporate Organization. Buyer is a national association organized andexisting in good standing under the laws of the United States, and is entitled to carry onits banking business where such business is now conducted.     (b) Power, Authority and Enforceability. Buyer has the requisite power andauthority to enter into, deliver and perform this Agreement and any instruments or otherdocuments executed pursuant hereto. This Agreement and any instruments or other documentsexecuted pursuant hereto, and the execution, delivery and performance hereof and thereof havebeen duly authorized and approved by all necessary corporate action on the part of Buyer.This Agreement has been duly and validly executed and delivered by Buyer and, assuming dueauthorization, execution and delivery by Seller, constitutes a valid and binding obligationof Buyer, enforceable against Buyer in accordance with its terms, except as enforcement maybe limited by receivership, conservatorship and supervisory powers of bank regulatoryagencies generally, as well as bankruptcy, insolvency, reorganization, moratorium or otherlaws of general applicability relating to or affecting creditors’ rights, or the limitingeffect of rules of law governing specific performance, equitable relief and other equitableremedies or the waiver of rights or remedies.     (c) No Conflict. The execution and delivery of this Agreement and anyinstruments and documents executed pursuant hereto by Buyer do not and, subject to thereceipt of all Regulatory Approvals, the consummation of the transactions contemplated bythis Agreement will not:
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     (1) constitute a breach or violation of or default under any LegalRequirement, judgment, order, governmental permit or the organizational documentsor any license of Buyer, or to which Buyer is subject, which breach, violation ordefault would materially and adversely affect the transactions contemplated hereby,or     (2) violate, conflict with, result in a breach of any provision of or the lossof any benefit under, constitute a default (or an event which, with notice or lapseof time, or both, would constitute a default) under, result in the termination ofor a right of termination or cancellation under, accelerate the performancerequired by, or result in the creation of any lien upon any of its assets under,any of the terms, conditions or provisions of any note, bond, mortgage, indenture,deed of trust, license, lease, agreement or other instrument or obligation to whichBuyer is a party, or by which it or any of its properties or assets may be bound oraffected, which breach, violation or default would prevent or materially delayBuyer from performing its obligations under this Agreement in all materialrespects.     (d) Regulatory Approvals. Except for the regulatory approvals set forth onSchedule 11(d) of the Buyer Disclosure Schedule (the “Buyer RegulatoryApprovals”), no consents or approvals of or filings or registrations with anyGovernmental Entity, or any third party are necessary in connection with the execution anddelivery by Buyer of this Agreement or the consummation by Buyer of the transactionscontemplated hereby.     (e) Litigation. There are no actions, claims, suits, proceedings orinvestigations, whether civil, criminal or administrative, pending or, to the Knowledge ofBuyer, threatened against or affecting Buyer or its business at law or in equity orotherwise, which would prevent or materially delay Buyer from being able to perform itsobligations under this Agreement.     (f) Compliance with Laws. To the Knowledge of Buyer, Buyer has not received anywritten notice of any alleged or threatened claim, violation or liability under any law of aGovernmental Entity in connection with the operation and business of Buyer that shouldreasonably be expected to prevent or materially delay Buyer from being able to perform itsobligations under this Agreement.     (g) Absence of Regulatory Agreements. Buyer is not subject to any RegulatoryAgreement with any Governmental Entity that restricts or would reasonably be expected torestrict its ability to purchase the Assets or to assume the Liabilities, nor has Buyer beenadvised in writing by any Governmental Entity that it is considering issuing or requestingany Regulatory Agreement.     (h) Governmental Entity Correspondence and Proceedings. Buyer has not receivedany written notice from any Governmental Entity indicating that such agency would oppose ornot promptly grant or issue its consent or approval, if requested, with respect to thetransactions contemplated hereby. There are no pending or, to Buyer’s Knowledge, threatenedactions, proceedings or allegations by any Person or Governmental Entity against Buyer thathas or would reasonably be expected to have a material and
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     adverse effect on Buyer’s abilityto perform its obligations under this Agreement in all materialrespects.     (i) Financing. Buyer has the necessary funding to complete the transactionscontemplated by this Agreement.     (j) Broker. Buyer has not employed or contracted with any broker or finder orincurred any liability for brokerage fees, commissions, finders’ fees or other like paymentin connection with the transactions contemplated hereunder.     (k) Limitations on Representations and Warranties. Except for therepresentations and warranties specifically set forth in this Section 11, neither Buyer norany of its agents, Affiliates or representatives, nor any other Person makes or shall bedeemed to make any representation or warranty to Seller, express or implied, at law or inequity, with respect to the transactions contemplated hereby.     **12. ****Seller’s Covenants****.**During the period from the date hereof to Closing Date,except as set forth in Schedule 12 of the Seller Disclosure Schedule, Seller (i) will, withrespect to the Branches, Assets and Liabilities, use its commercially reasonable efforts topreserve the business relationship with depositors, customers and others having businessrelationships with it and whose accounts will be retained at the Branches and Seller shall providewritten notice to Buyer in the event it receives written notice of any loss or potential loss ofany material business or customers related to the Loans or the Deposit Liabilities, (ii) willunderwrite and administer the Loans in accordance with prudent, safe and sound underwriting andadministration practices and applicable Legal Requirements, (iii) will maintain the Branches intheir current condition, ordinary wear and tear excepted, (iv) will conduct the business of theBranches and preserve the Assets and Liabilities in accordance with prudent, safe and soundcommercial banking practices and applicable Legal Requirements, (v) will notify Buyer within twelve(12) hours of Seller becoming aware of any material change to Seller’s representations andwarranties set forth in Section 9(i). Other than as may be required by any Governmental Authorityor Legal Requirement, and except as set forth in Schedule 12 of the Seller DisclosureSchedule, Seller covenants with Buyer that, from the date hereof to Closing, Seller, except withthe prior written consent of Buyer, will not:     (a) Sell, transfer, assign, lease, mortgage, pledge or otherwise dispose of or encumberor enter into any contract, agreement, or understanding to sell, transfer, assign, lease,mortgage, pledge or otherwise dispose of or encumber any of the Assets (other than use ofCash on Hand in the ordinary course of business consistent with past practice) or Liabilitiesexisting on the date hereof.     (b) Sell, transfer, assign, lease, mortgage, pledge or otherwise dispose of or encumberor enter into any contract, agreement, or understanding to sell, transfer, assign, lease,mortgage, pledge or otherwise dispose of or encumber any Loan.     (c) Enter into any employment, agency or other contract or arrangement for theperformance of personal services at the Branches, which is not terminable at will (at anytime, with or without cause, and with or without notice) without liability to Buyer.
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     (d) Fail to comply in all material respects with all Legal Requirements that relate to(1) the conduct of the banking business at the Branches, or (2) the Assets.     (e) Set interest rates at the Branches in a manner inconsistent with prudent, safe andsound banking practices, and without limiting the generality of the foregoing, (i) accept anydeposits at higher than prevailing market rates in the geographic markets where the Branchesare located at the time of such acceptance; (ii) change interest rates on existing deposits,or (iii) employ any special promotions unique to the markets served by the Branches toincrease deposits, unless Buyer consents to such special promotion.     (f) Fail to maintain the Personal Property in a commercially reasonable manner andconsistent with past practices.     (g) Acquire or dispose of any Personal Property other than pursuant to commitments madeon or before the date of this Agreement and which are identified on Schedule 12(g) ofthe Seller Disclosure Schedule, and except for replacement of any Personal Property andnormal maintenance and refurbishing in the ordinary course of business; provided however,that Seller shall make no capital expenditures nor any contract or commitment for capitalexpenditures in excess of $5,000 for any individual expenditure and $20,000 in the aggregatefor any one (1) project for furniture, fixtures or equipment for a Branch.     (h) Pay or commit to pay (a) any bonus prior to Closing, or (b) pay or commit to payprior to Closing, any salary, fee, or other compensation to any of its employees at theBranches at a rate in excess of that prevailing on the date hereof.     (i) Make any new loans at the Branches to any Affiliated Person of the Seller or modifythe terms of any existing loan at the Branches with any Affiliated Person of the Seller.     (j) Modify the interest rate or structure, or amend, extend or renew any term, of anyLoans, grant any interest deferral or fee waivers, or deviate from industry standard andcommercially reasonable collection procedures, including, without limitation, modification ofpayment terms or due date(s).     (k) Establish new Deposit Liabilities at the Branches other than in the ordinary courseof business consistent with Section 12(e) above.     (l) File any application or give any notice to relocate or close any of the Branches orrelocate or close any Branches.     (m) Transfer any employees currently employed at any of the Branches to another branchof Seller or any of its Affiliates.     (n) Transfer to or from any Branch to or from any of Seller’s other operations orbranches or those of its Affiliates any Assets or any Deposit Liabilities, except upon theunsolicited request of a depositor or customer.     (o) Amend, terminate or extend in any material respect any Branch Lease.
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     (p) Make or agree to make any material improvements to the Premises, except with respectto commitments for such made on or before the date of the Agreement as set forth onSchedule 12(p), and normal maintenance or refurbishing in the ordinary course ofbusiness.     (q) Introduce any new material method of management or operation of the Branches.     (r) Make any significant change to the employees at the Branches or any changes in theduties or responsibilities of any of them other than in the ordinary course of business.     (s) Default with respect to any provision of any insurance policy now or hereafter ineffecting relating to the Branches.     (t) Take any action that is intended or is reasonably likely to result in any of thecovenants or conditions to the transactions contemplated hereby not being materiallysatisfied or a material violation of any provision of this Agreement.     (u) Agree with, or commit to, any Person to do any of the things described in clauses(a) through (t) of this Section 12 except as expressly contemplated hereby.     **13. ****Cross-Collateralization/Cross-Default**. As of the Closing Date, Seller and Buyeragree that each cross-default agreement (or similar agreement) and each cross-default rider (orsimilar rider) attached to a promissory note or mortgage or deed of trust covering loans not partof the Loans, shall be amended to un-cross such cross-default and exclude any Loans, and that theLoans shall not be cross-defaulted with any loans not part of the Loans. Further, Seller and Buyeragree that each cross-collateral agreement (or similar agreement) and each cross-collateralizationrider (or similar rider) attached to a promissory note or mortgage or deed of trust covering loansnot part of the Loans, shall be amended to un-cross such cross-collateralization of any securityinterests, liens, or other interests in any collateral securing the Loans. Seller agrees toexecute any documents necessary to evidence such un-crossing of any cross-defaults andcross-collateralizations in the real property records, or otherwise. The parties further agreethat where the only loans crossed are in fact within the Loans, any applicable crosscollateralization agreements and riders shall be assigned by Seller to Buyer as a Loan Agreementpursuant to the terms of this Agreement.     **14. ****Buyer Covenants****.**Buyer covenants with Seller that, between the date of thisAgreement and the Closing, Buyer will not (i) take any action that is intended to or is reasonablylikely to result in any of the conditions set forth in Section 7 becoming incapable of beingsatisfied, or (ii) take any action or fail to take any action which would, or is reasonablylikely to, individually or in the aggregate, result in a Material Adverse Effect on Buyer.     **15. ****Additional Covenants**.     (a) Servicing Prior to Closing Date. With respect to the Loans from the datehereof until the Closing Date, Seller shall provide servicing of such Loans that isconsistent with the servicing provided with respect to its loans that are not Loans. Further,without the prior written consent of Buyer (which consent shall not be unreasonably
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withheld or delayed), Seller shall not (a) except as required by Legal Requirement or the terms of theLoan Documents, release any collateral or any party from any liability on or with respect toany of the Loans; (b) compromise or settle any material claims of any kind or character withrespect to the Loans; or (c) amend or waive any of the material terms of any Loan as setforth in the Loan Documents.     (b) Servicing Loans Post Closing Date. The Loans shall be sold on aservicing-released basis (and without limitation, any related escrow deposits shall betransferred to Buyer). As of the Closing Date, all rights, obligations, liabilities andresponsibilities with respect to the servicing of the Loans after the Closing Date will beassumed by Buyer. Seller shall be discharged and indemnified by Buyer from all liabilitywith respect to servicing of the Loans after the Closing and Buyer shall not assume and shallbe discharged and indemnified by Seller from all liability with respect to servicing of theLoans on or prior to the Closing.     (c) Solicitation of Accounts.     (1) Until the Closing Date and for an additional twelve (12) months followingthe Closing Date, Seller and its Affiliates will not target or solicit deposits,loans or other products and services from or to Persons (i) who were depositors orborrowers at the Branches as of the Closing Date, or (ii) whose Loans were acquiredor Deposit Liabilities were assumed pursuant to this Agreement, whether by personalcontact, by telephone, by facsimile, by mail or other form of solicitation orcommunication, or in any other way except for general solicitations that aredirected to the general public and not directed specially to Persons referencedabove.     (2) In making any of the foregoing permitted communications, following theexecution of this Agreement, Seller shall not reference any of the transactionscontemplated by this Agreement in a manner that intentionally disparages Buyer orthe business of Buyer. Following the execution of this Agreement, Buyer shall notreference any of the transactions contemplated by this Agreement in a manner thatintentionally disparages Seller or the business of Seller.     (3) This Section 15(c) shall survive the Closing for the period set forthabove, and the obligations under this Section 15(c) will survive and apply to anysuccessor of Seller whether by merger, acquisition, stock purchase, asset purchaseor similar business combination transaction.     (d) Access to Books and Records. For a period of six (6) years from the ClosingDate, subject to applicable Legal Requirement, each party shall have commercially reasonableaccess to any books and records of the other party relating to the Branches, Assets and theLiabilities, and the requesting party, at its own expense, may during normal business hoursmake copies and extracts when such copies and extracts are required by regulatoryauthorities, for litigation purposes, or for tax or accounting purposes. If such copies orextracts require use of a party’s equipment or the Branches, the user shall reimburse theother party for all costs incurred, including, without limitation,
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employee expenses. In the event that as of the end of such six (6) year period, any tax year of Seller is underexamination by any taxing authority, Seller shall inform Buyer in writing of the audit andsuch books and records shall be maintained by Seller and/or Buyer, as the case may be, untila final determination of the tax liability of Seller for that year has been made.     (e) Release of Non-Solicitation Agreements; Non-Solicitation; and Non-Compete.     (1) Seller will enter into written unconditional releases (the“Unconditional Releases”), in a form reasonably satisfactory to Buyer, (a)with each employee of Buyer who is employed by Buyer as of the execution of thisAgreement who was previously employed by Seller, and (b) each Hired Employee, fromany and all restrictions and/or obligations to Seller under any existingnon-solicitation agreements or non-competition agreements or other agreements orarrangements containing non-solicitation and/or non-competition provisions,provided, however, that such unconditional release shall only apply: (a) withrespect to any geographic non-competition covenants in such agreements, to thecounties in which the Branches are located, (b) with respect to any customernon-solicitation covenants in such agreements, to the customers whose Loans areacquired and/or Deposit Liabilities are assumed by Buyer pursuant to thetransaction contemplated by this Agreement, and (c) for such period of time as theyremain employees of Buyer or any of its Affiliates.     (2) For a period of twelve (12) months following the Closing Date Seller willnot (and shall cause its Affiliates not to) i) solicit the employment, directly orindirectly (other than general solicitations through newspapers orother media of general circulation not targeted at such employees oractions in response to an employee’s own initiative, provided thatthere has not been any direct or indirect solicitation by orencouragement from Seller or any Affiliate of Seller or any agent orrepresentative of Seller), of any of the individuals listed onSchedule 15(e).  ii) solicit the business, directly or indirectly,of any customers whose Loans are acquired and/or Deposit Liabilitiesare assumed by Buyer pursuant to the transaction contemplated by thisAgreement.  iii) establish any new physical presence (whetherit be a branch, a loan production office or otherwise) in any countyin which a Branch is located.     (f) Insurance. Seller will maintain in effect until the Closing Date allcasualty and public liability policies relating to the Branches, the Premises and theactivities conducted thereon and maintained by Seller on the date hereof or to procurecomparable replacement policies and maintain such replacement policies in effect until theClosing Date at equal or greater coverage levels. Buyer shall provide all casualty and publicliability insurance for the Branches after the Closing Date. In the event of any material
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damage, destruction or condemnation affecting the Premises between the date hereof and thetime of the Closing, Buyer shall have the right to (i) exclude any Premise and/or BranchLease so affected from the Assets to be acquired and receive a corresponding deduction to thePurchase Price in an amount to be mutually agreed upon in good faith between the parties, or,in the alternative, (ii) require Seller to take reasonable steps to repair or replace thedamaged or destroyed property, or (iii) require Seller to deliver to Buyer any insuranceproceeds and other payments, to the extent of the fair market value or the replacement costof the Premise and/or Branch Lease, received by Seller as a result thereof unless, in thecase of damage or destruction, Seller has repaired or replaced the damaged or destroyedproperty.     (g) Additional Loans. Promptly following the date hereof, the parties willagree on a schedule and process for providing information relating to loans (“AdditionalLoan Information”) originated after the date hereof through the fifth (5th) Business Dayprior to the Closing Date (with Additional Loan Information provided to Buyer not lessfrequently than monthly and the final delivery of Additional Loan Information, if any, notlater than the second (2nd) Business Day prior to the Closing Date) that Buyerdeems reasonably necessary to enable it to determine whether to designate such loans as“Additional Loans.” The parties will further agree on a schedule for Buyer to designate Loansas “Additional Loans,” which shall occur not later than the fifth (5th) BusinessDay following the date that the applicable Additional Loan Information was provided to Buyerand, with respect to any Additional Loan Information provided within Five (5) Business Daysof the Closing Date, not later than the close of business on the day preceding the ClosingDate. Unless the parties otherwise agree in writing, loans originated after the fifth(5th) Business Day prior to the Closing Date shall not be “Additional Loans.” Anyloans originated after the date hereof that Buyer does not designate as “Additional Loans”pursuant to the agreed upon process shall not be Loans, Additional Loans or Assets andmay, without regard to any other provisions of this Agreement, be transferred by Seller toanother Seller banking branch, together with any related servicing or other rights orcollateral.     (h) Within twenty-one (21) calendar days of the execution of this Agreement, Buyer shallobtain a commercial appraisal of the property value of each of the Branches, including thePremises (the “Appraised Value”), the cost of which shall be borne equally by theparties.     (i) Seller shall, at its own cost and expense, and in coordination with Buyer, shallremove anything related to the Excluded Deposits, Excluded Liabilities and Excluded Loans, aswell as any assets that the Buyer is not acquiring pursuant to this Agreement that arelocated at the Branches, and Seller shall be responsible for making any repairs necessitatedby the removal of the foregoing from the Branches.     (j) On July 1, 2009, Seller shall deposit Ninety Million Dollars ($90,000,000.00) into apledged deposit account maintained at one of Buyer’s branch locations (“Seller SpecialDeposit Amount”). Withdrawal or encumbrance of any amount of the Seller Special DepositAmount by Seller shall require the consent of Buyer, which consent may be withheld or grantedin the sole and absolute discretion of Buyer, provided, that, (x) upon the payment by Sellerto Buyer of the Termination Fee in accordance with
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the terms of this Agreement, which amount shall be paid from the Seller Special Deposit Amount to the extent sufficient to fund theTermination Fee, the remainder, if any, of the Seller Special Deposit Amount shall bereturned to Seller and (y) upon payment by Seller to Buyer of any and all amounts duehereunder or contemplated hereby at the Closing, which amount shall be paid from the SellerSpecial Deposit Amount to the extent sufficient to fund such payments, the remainder, if any,of the Seller Special Deposit Amount shall be returned to Seller. For the avoidance of doubt,in the event the Seller Special Deposit Amount is insufficient to fund the Termination Fee orthe payment of any and all amounts owing at Closing pursuant to the terms of this Agreement,Seller shall fund and make such payments in accordance with the other applicable provisionsof this Agreement.     (k) Five (5) Business Days prior to the Closing Date, Seller and Buyer shall togetherreview the Loans set forth on Schedule 4(a)(i) and the Deposit Liabilities set forthon Schedule 8 and identify any and all Deposit Liabilities set forth on Schedule8 that serve as security for loans other than the Loans, and with respect to such DepositLiabilities, Buyer shall, within three (3) Business Days, inform Seller in writing as towhether Buyer wishes to assume any of such Deposit Liabilities at the Closing, in which case,the loans secured by such Deposit Liabilities shall be added to Schedule 4(a)(i) andshall be deemed to be “Loans,” and with respect to all such other Deposit Liabilities thatserve as security for loans that are not Loans, such Deposit Liabilities shall be removedfrom Schedule 8 and shall not be “Deposit Liabilities” and as such Buyer shall notassume such deposit liabilities at the Closing. Any and all modifications to Schedule4(a)(i) and Schedule 8 shall be taken into consideration and reflected on theFinal Closing Statement and a corresponding adjustment shall be made to the Purchase Priceand Adjusted Payment Amount.     (l) The parties hereto acknowledge and agree that it is the intent of Buyer to purchase,and the intent of Seller to sell, any and all additional loans related to the Loans acquiredin connection herewith. Therefore, Seller (i) covenants and agrees, within ten (10) BusinessDays following execution of this Agreement, and thereafter two (2) Business Days followingthe addition of a loan to Schedule 4(a)(i) pursuant to the terms of this Agreementthereby making it a “Loan” (the “Related Loan Review Period”), to review its records, loanfiles and other relevant data to identify the existence and nature of any loans held by it,the borrower of which is the same Person as the borrower under any Loan or the affiliate orprincipal of a borrower under any Loan (a “Related Loan”) and (ii) hereby agrees tosell to Buyer one or more of the Related Loans in the event Buyer wishes to acquire suchRelated Loans in its sole and absolute discretion. In the event Seller discovers anyRelated Loans, it shall, prior to the expiration of the Related Loan Review Period, notifyBuyer in writing of the same and provide Buyer with copies of all loan documents, loan filesand other data relevant to the Related Loans and Buyer’s purchase decision with respectthereto. In the event Buyer elects to purchase one or more of the Related Loans, it shalldeliver written notice to Seller, within ten (10) Business Days following the end of therelevant Related Loan Review Period (or such shorter period of time that exists between theend of the Related Loan Review Period and the Business Day immediately preceding the ClosingDate), identifying any and all of the Related Loans it intends to purchase. Such RelatedLoans shall immediately thereafter be added to Schedule 4(a)(i) and be deemed to be a“Loan” for all purposes of this Agreement. Buyer’s failure to
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deliver to Seller such writtennotice within the aforementioned timing shall operate to terminate Buyer’s right to acquiresuch Related Loans hereunder.     **16. ****Regulatory Compliance, Conversion and Transition Matters**.     (a) Regulatory Filings and Approvals.     (1) As promptly as practicable, but in no event later than fifteen (15)calendar days from the date of this Agreement, and assuming the full and timelycooperation and assistance of Seller (including, but not limited to, in the eventBuyer requests Seller’s cooperation in seeking expedited review and approval by theOCC of the transactions contemplated by this Agreement), which Seller herebycovenants and agrees to provide as and when requested by Buyer, Buyer shallprepare, submit and/or file all applications, filings, notices, consents, permitsor registrations required to obtain the Buyer Regulatory Approvals. Buyer shalluse commercially reasonable efforts to obtain each such Buyer Regulatory Approvalas promptly as practicable. Seller and Buyer will use commercially reasonableefforts to cooperate in connection therewith (including the furnishing of anyinformation and any reasonable undertaking or reasonable commitments which may berequired to obtain the Buyer Regulatory Approvals). Buyer will provide Seller withcopies of any applications and all correspondence relating thereto prior to filing,other than material filed in connection therewith under an appropriate claim ofconfidentiality, and Seller shall have an opportunity to review and comment on theapplication to the OCC prior to filing the same with the OCC and Buyer shallprovide Seller with a copy of the final application promptly after it is filed withthe OCC. In exercising the foregoing right, Seller agrees to act reasonably and aspromptly as practicable. If any Governmental Entity shall require the modification of any of the termsand provisions of this Agreement as a condition to granting any Buyer RegulatoryApproval, the parties hereto will negotiate in good faith to seek a mutuallyagreeable adjustment to the terms of the transaction contemplated hereby, suchagreement not to be unreasonably withheld or delayed.     (2) As promptly as practicable, but in no even later than five (5) calendardays after Buyer files an application to obtain the Buyer Regulatory Approvals, andassuming the full and timely cooperation and assistance of Buyer, Seller shallprepare, submit and/or file all of the Seller Regulatory Notices. Seller shall usecommercially reasonable efforts to file the Seller Regulatory Approval as promptlyas practicable. Seller and Buyer will use commercially reasonable efforts tocooperate in connection therewith (including the furnishing of any information andany reasonable undertaking or reasonable commitments which may be required toobtain the Seller Regulatory Notices). Seller will provide Buyer with copies of anynotices and all correspondence relating thereto prior to submission, other thanmaterial submitted in connection therewith under a claim of confidentiality, andBuyer shall have an opportunity to review and comment on the notice to the IndianaDepartment of Financial Institutions prior to submitting the same and Seller shallprovide Buyer with a
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copy of the final notice promptly after it is submitted. Inexercising the foregoing right, Buyer agrees to act reasonably and as promptly aspracticable.     (b) Transitional Arrangements. Seller and Buyer agree to cooperate and toproceed as follows to effect the transfer of account record responsibility for the Branches:     (1) As soon as practicable after the execution of this Agreement by theparties hereto, but in no event later than two (2) calendar days after the date ofthis Agreement, Seller will meet with Buyer to investigate, confirm and agree uponmutually acceptable transaction settlement procedures and specifications, files,deliverables, procedures and schedules, for the transfer of account recordresponsibility for the Branches. Not later than five (5) calendar days after thedate of this Agreement, Seller shall deliver to Buyer the specifications andconversion sample files to consist of live data of all accounts, which shallinclude live data of all accounts as of the close of business two (2) calendar daysfollowing the execution of this Agreement by the parties hereto or such a date assoon as possible thereafter.     (2) After Buyer has tested and confirmed the conversion sample files, Sellershall provide Buyer with account information, as of the most recent practicabledate, including complete name and address, account master file, ATM account numberinformation, applicable transaction and stop/hold/caution information,account-to-account relationship information and any other related information withrespect to the Deposit Liabilities. Seller shall, upon reasonable request, but notlater than five(5) days following such request, and the performance of thenecessary research and mapping, which shall be performed as promptly as possible,provide to Purchaser an updated version of such records.     (3) Seller shall provide Buyer after close of business on the Closing Date, afinal conversion file containing all information as of close of business on theClosing Date.     (c) Customers.     (1) Buyer shall, jointly with Seller, as soon as practicable after theexecution and delivery of this Agreement, prepare and mail to each holder ofDeposit Liabilities, a letter, in the form and substance reasonably satisfactory toeach of the parties, informing such depositor of the nature of the transactioncontemplated by this Agreement and the continuing availability of services to beprovided by Buyer at the Branches on and after the Closing Date     (2) Each of Seller and Buyer shall provide, or join in providing whereappropriate, all notices to customers of the Branches and other Persons that Selleror Buyer, as the case may be, is required to give notice to in connection with thetransactions contemplated hereby under Legal Requirement or the terms of any otheragreement between Seller and any customer.
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A party required to send or publish any notice or communication pursuant to thisSection 16(c)(2) shall furnish to the other party a copy of the proposed form ofsuch notice or communication at least five (5) Business Days in advance of the dateof the first mailing, posting, or other dissemination thereof to customers, andshall not unreasonably refuse to amend such notice to incorporate any changes thatthe other party proposes as necessary to comply with any Legal Requirement. Allcosts and expenses of any notice or communication sent or published by Buyer orSeller shall be the responsibility of the party sending such notice orcommunication and all costs and expenses of any joint notice or communication shallbe shared equally by Seller and Buyer. As soon as reasonably practicable and inany event within thirty (30) calendar days after the date hereof, Seller shallprovide to Buyer a report of the names and addresses of the owners of the DepositLiabilities, and the lessees of the safe deposit boxes, each as of the date hereof,to facilitate the mailing of such materials. No communications by Buyer, and nocommunications by Seller, outside the ordinary course of business, to any suchowners, borrowers or lessees shall be made prior to the Closing Date, except asprovided in this Agreement or otherwise agreed to by the parties in writing.     (3) Following the giving of any notice described in paragraph (1) above, Buyerand Seller shall deliver to each new customer at any of the Branches such notice ornotices as may be reasonably necessary to notify such new customers of Buyer’spending assumption of liability for the Deposit Liabilities and to comply withapplicable Legal Requirements.     (4) Notwithstanding the provisions of Section 18, until Buyer has providedsubstitute materials to the depositors of the Deposit Liabilities, neither Buyernor Seller shall object to the use by depositors of the Deposit Liabilities ofpayment orders issued to or ordered by such depositors on or prior to the ClosingDate, which payment orders bear the name, or any logo, trademark, service markor proprietary mark, of Seller or any of its Affiliates.     (d) Contracts with Depositors. Buyer will timely perform, honor, and assume allcontractual deposit agreements and relationships between Seller and Seller’s depositors withregard to the Deposit Liabilities after the Closing and will do so in compliance withapplicable Legal Requirements. Buyer and Seller shall make appropriate arrangements witheach other to provide for settlement by Buyer of checks, deposits, debits, returns, and otheritems that are presented to Seller after the Closing for the Deposit Liabilities. On thethird (3rd) Business Day prior to the Closing Date, Seller shall provide Buyer with a list ofDeposit Liabilities, corresponding interest rates paid on the Deposit Liabilities and otherinformation necessary for Buyer to verify the rates paid by Seller on Deposit Liabilities.     (e) Direct Deposits. Seller will use its reasonable best efforts to transfer toBuyer on the Closing Date all of those automated clearing house (“ACH”) and FedWiredirect deposit arrangements related (by agreement or other standing arrangement) to theDeposit Liabilities. For a period of three (3) months following the Closing Date, in thecase of ACH direct deposits to accounts containing Deposit Liabilities (the final BusinessDay of such period being the “ACH Direct Deposit Cut-Off Date”), Seller shalltransfer to
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Buyer all received ACH Direct Deposits each Business Day in accordance withSeller’s customary procedures. Seller shall, on behalf of Buyer, send NACHA compliant Noticeof Change on each transfer received. On each Business Day, for a period of sixty (60)calendar days following the Closing Date (the final Business Day of such period being the“FedWire Direct Deposit Cut-Off Date”), FedWire direct deposits received by Sellershall be returned (as soon as is practicable after receipt) to the originator with anindication of Buyer’s correct Wire Room contact information and an instruction that such wireshould be sent to Buyer. Compensation for ACH direct deposits or FedWire direct deposits notforwarded to Buyer on the same Business Day as that on which Seller has received suchdeposits will be handled in accordance with the applicable rules established by the UnitedStates Council on International Banking. After the respective ACH Direct Deposit Cut-OffDate or FedWire Direct Deposit Cut-Off Date, Seller may discontinue accepting and forwardingACH and FedWire entries and funds, and return such direct deposits to the originators marked“Account Sold.” Seller and its Affiliates shall not be liable for any overdrafts that maythereby be created. Buyer and Seller shall agree on a reasonable period of time prior to theClosing during which Seller will no longer be obligated to accept new direct depositarrangements related to the Branches. At the time of the ACH Direct Deposit Cut-Off Date,Buyer will provide ACH originators with account numbers relating to the Deposit Liabilities.     (f) Direct Debits. After the notice provided in Section 16(c)(1), Buyer shallsend appropriate notice to all customers having accounts constituting Deposit Liabilities,the terms of which provide for direct debit of such accounts by third parties, instructingsuch customers concerning the transfer of customer direct debit authorizations from Seller toBuyer. Such notice shall be in a form reasonably agreed to by the parties hereto. For aperiod of three (3) months following the Closing, Seller shall transfer to Buyer all receiveddirect debits on accounts constituting Deposit Liabilities each Business Day in accordancewith Seller’s customary procedures. Buyer will send NACHA compliant Notice of Change on eachdirect debit received. Thereafter, Seller may discontinue forwarding suchentries and return them to the originators marked “Account Sold.” Buyer and Sellershall agree on a reasonable period of time prior to the Closing during which Seller will nolonger be obligated to accept new direct debit arrangements related to the Branches. On theClosing Date, Buyer shall provide ACH originators of such direct debits with account numbersrelating to the Deposit Liabilities.     (g) Interest Reporting and Withholding.     (1) Unless otherwise agreed to by the parties, Seller will report toapplicable taxing authorities and holders of Deposit Liabilities, with respect tothe period from January 1 of the year in which the Closing occurs through theClosing Date, all interest (including dividends and other distributions withrespect to money market accounts) credited to, withheld from and any earlywithdrawal penalties imposed upon the Deposit Liabilities. Buyer will report to theapplicable taxing authorities and holders of Deposit Liabilities, with respect toall periods from the day after the Closing Date, all such interest credited to,withheld from and any early withdrawal penalties imposed upon the DepositLiabilities. Any amounts required by any Governmental Entity to be withheld fromany of the Deposit Liabilities through the Closing Date will be withheld by
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Seller in accordance with Legal Requirements or appropriate notice from any GovernmentalEntity and will be remitted by Seller to the appropriate agency on or prior to theapplicable due date. Any such withholding required to be made subsequent to theClosing Date will be withheld by Buyer in accordance with Legal Requirements orappropriate notice from any Governmental Entity and will be remitted by Buyer tothe appropriate agency on or prior to the applicable due date.     (2) Unless otherwise agreed by the parties, Seller shall be responsible fordelivering to payees all IRS notices with respect to information reporting and taxidentification numbers required to be delivered through the Closing Date withrespect to the Deposit Liabilities, and Buyer shall be responsible for deliveringto payees all such notices required to be delivered following the Closing Date withrespect to the Deposit Liabilities.     (3) Unless otherwise agreed by the parties, Seller will timely make allrequired reports to applicable taxing authorities and to obligors on Loans, withrespect to the period from January 1 of the year in which the Closing occursthrough the Closing Date concerning all interest and points received by Seller, andBuyer will timely make all required reports to applicable taxing authorities and toobligors on Loans, with respect to all periods from the day after the Closing Date,concerning all such interest and points received by Buyer.     (h) Negotiable Instruments. Seller will remove any supply of Seller’s moneyorders, official checks, gift checks, travelers’ checks or any other negotiable instrumentslocated at each of the Branches on the Closing Date.     (i) ATM/Debit Cards; POS Cards. Seller will provide Buyer with a list of ATMaccess/debit cards and Point-of-Sale (“POS”) cards issued by Seller to depositors ofany Deposit Liabilities, and a record thereof in a format reasonably agreed to by theparties containing all addresses therefor, as soon as practicable and in no event later thanfourteen (14) calendar days after the date of this Agreement. At or promptly after theClosing, Seller will provide Buyer with a revised record through the Closing. In instanceswhere a depositor of a Deposit Liability made an assertion of error regarding an accountpursuant to the Electronic Funds Transfer Act and Federal Reserve Board Regulation E, andSeller, prior to the Closing, re-credited the disputed amount to the relevant account duringthe conduct of the error investigation, Buyer agrees to comply with a written request fromSeller to debit such account in a stated amount and remit such amount to Seller, to theextent of the balance of funds available in the accounts. Seller agrees to indemnify Buyerfor any Losses that Buyer may incur as a result of complying with such request from Seller.Seller shall not be required to disclose to Buyer customers’ PINs or algorithms or logic usedto generate PINs. Buyer shall reissue ATM access/debit cards to depositors of any DepositLiabilities not earlier than forty-five (45) calendar days nor later than seven (7) calendardays prior to the Closing Date, which cards shall be effective as of the day following theClosing Date. Buyer and Seller agree to settle any and all ATM transactions and POStransactions effected on or before the Closing Date, but processed after the Closing Date, assoon as practicable following the processing thereof.
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     (j) Data Processing Agreement and Hardware. Seller will provide Buyer inadvance of the Closing upon reasonable prior notice, during normal hours of operations,reasonable access to equipment and records in order to effectuate a conversion of the DepositLiabilities and the Loans from Seller to Buyer as of the Closing Date. Any cost of suchinspection or conversion shall be at Buyer’s sole expense. Notwithstanding the foregoing,Seller shall not be obligated to provide access to such equipment and records if it wouldmaterially interfere with Seller’s ability to conduct its business or operations in theordinary course. The parties agree to use reasonable best efforts to comply with the purposeand intent of this Section 16(j) prior to and after the Closing.     (k) Loan Collections. Buyer and Seller shall make appropriate arrangements witheach other to provide for settlement by the party receiving payments of all payments of anykind made in relation to the Loans which are presented to a party after the Closing and withregard to loans which are owned by the other party. These arrangements shall be performed byboth parties in good faith prior to and after the Closing.     (l) Access to Properties, Books and Records. Until the Closing, Seller shallupon reasonable prior written notice and during regular business hours cooperate with Buyerto provide Buyer and its officers and authorized agents and representatives access to theproperties (including visiting the Branches for integration planning purposes), books,records, files (including all of the Loan Files), documents and other information relating tothe Assets and Liabilities as Buyer may reasonably request. Buyer and Seller each willidentify to the other, within ten (10) calendar days after the date hereof, a selected groupof their respective salaried personnel that shall constitute a “transition group” and will beavailable to Seller and Buyer, respectively, at reasonable times (limited to normal operatinghours) to provide information and assistance in connection with Buyer’s investigation ofmatters relating to the Branches, Assets and Liabilities. Such transition group will alsowork cooperatively to identify and resolve issues arising from any commingling of Seller’srecords with respect to the Branches with Seller’s records for itsother branches and operations not subject to this Agreement. Seller shall furnish Buyerwith such additional financial and operating data and other information about Seller’sbusiness operations at the Branches as the Seller determines may be reasonably necessary forthe orderly transfer of the business operations of the Branches, the Assets and theLiabilities.     (m) Employees and Employee Benefits.     (1) Buyer intends to hire (on an at-will basis) after the Closing certainstaff at the Branches that are employed by Seller immediately prior to the Closing.Buyer shall make a written offer of employment to each such employee of Sellerselected by Buyer to be an employee of Buyer effective as of the Closing Date byvirtue of the consummation of the transactions set forth herein. Buyer shallprovide Seller with a written list of current Branch employees to whom Buyer willmake an offer of employment, and Seller shall take such action as is necessary toterminate such employees not included on such list or transfer their employmentwithin Seller and its affiliates, in both cases effective as of the Closing Date.Each such Branch employee who accepts Buyer’s offer of employment (regardless ofwhether they are active employees or on leave of
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absence status as of the Closing Date) shall be a “Hired Employee” for purposes of this Agreement, effectiveupon the Closing Date and this date shall be referred to as the Hired Employee’s“Transfer Date.” Subject to applicable Legal Requirements, on and afterthe Closing Date, the Hired Employees shall become employees of Buyer, and Buyershall have the right to dismiss any or all Hired Employees at any time, with orwithout cause, and to change the terms and conditions of their employment(including compensation and employee benefits provided to them). Each employee whois not offered employment by Buyer, or who fails to accept Buyer’s offer ofemployment shall be an “Excluded Employee” for purposes of this Agreement.Nothing in this Agreement shall give any employee any rights to claim status as athird party beneficiary of this Agreement.     (2) Except as expressly provided in this Agreement, Seller shall pay,discharge, and be responsible for, and shall indemnify Buyer and its Affiliates for(i) all salary, wages (including, without limitation, payment for any and allaccrued paid time off, vacation, sick time or personal days accrued by the HiredEmployees as of the Transfer Date, which Seller agrees to pay to the HiredEmployees pursuant to Seller’s Employee Benefit Plans and as required by anyapplicable Legal Requirement), bonuses, commissions and any other form ofcompensation (including, without limitation, any deferred compensation) arising outof the employment of the Hired Employees prior to the Transfer Date, and (ii) anyemployee benefits under the Seller’s Employee Benefit Plans arising out of theemployment of the Hired Employees prior to the Transfer Date, including welfarebenefits with respect to claims incurred prior to the Transfer Date but reportedafter the Transfer Date.     (3) Seller’s Employee Benefit Plans shall retain responsibility for all claimsincurred by employees prior to the date they become Hired Employees.For purposes of this paragraph, a claim shall be deemed to have been incurredwhen the medical or other service giving rise to the claim is performed, exceptthat disability claims shall be deemed to have been incurred on the date theemployee becomes disabled. Buyer agrees, to the extent permitted under itsEmployee Benefit Plans, to (i) provide coverage for Hired Employees under itsmedical and dental benefit plans, effective on the Closing Date or as soon aspracticable thereafter as permitted by the Employee Benefit Plans, and (ii) waiveany preexisting conditions, waiting periods and actively at work requirements undersuch plans.     (4) Seller shall be solely and fully responsible for the Excluded Employees inthe transfer of Excluded Employees to other positions with Seller or in thetermination of their employment with Seller. To the extent Seller is terminatingany Excluded Employees, Seller shall be fully and completely responsible for saidtermination(s), paying those certain Excluded Employees all accrued wages,commissions, vacation pay and any other compensation due and owing, and providingnotice of such Excluded Employees rights and obligations pursuant to COBRA. Sellershall be fully liable for any claims, demands, damages orders, awards and/orjudgments arising out of or relating in any way to
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Seller’s treatment of and/or termination of Excluded Employees, including but not limited to any obligationswhich may arise under the Federal or any applicable state or local WorkerAdjustment and Retraining Notification (“WARN”) law.     (5) Pursuant to Treasury Regulations Section 1.409A-1(h)(4), Seller and Buyeragree that, on the Closing Date, each Hired Employee shall be treated as having a“separation from service” with Seller for purposes of Section 409A of the Code andTreasury Regulations Section 1.409A-1(h).     (6) It is understood and agreed that (i) Buyer’s employment of any HiredEmployee as set forth in this Section 16(m) shall not constitute a commitment,contract or understanding (express or implied) of an obligation on the part ofBuyer to a post-Closing employment relationship of any fixed term or duration orupon any terms or conditions other than those that Buyer may establish pursuant toindividual offers of employment, and (ii) employment offered by Buyer is “at will”and may be terminated by Buyer or by a Hired Employee at any time for any reason(subject to any written commitments to the contrary made by Buyer or a HiredEmployee and subject to any Legal Requirement). Nothing in this Agreement shall bedeemed to prevent or restrict in any way the right of Buyer to terminate, reassign,promote or demote any of the Hired Employees after the Closing Date or to changeadversely or favorably the title, powers, duties, responsibilities, functions,locations, salaries, other compensation, or terms or conditions of employment ofsuch Hired Employees. Nothing in this Agreement shall be construed as requiring anycompensation or Employee Benefit Plan, program or arrangement to be maintained byBuyer for any Hired Employee at, or for any specified period after, the ClosingDate.     (n) Transitional Matters. Without in any way limiting the generality of theforegoing provisions, Buyer and Seller shall cooperate with regard to the transitionalmatters as reasonably requested by Buyer of Seller. Notwithstanding the foregoing, Sellershall not be obligated to provide its resources or time to such transitional matters if itwould materially interfere with Seller’s ability to conduct its business or operations in theordinary course.     (o) Assumption of IRAs. Subject to Sections 2(c) and 6(b)(5), Buyer agrees thatafter the Closing, it will perform all of the duties so delegated as successor custodian andcomply with the terms of Seller’s agreement with the depositor of the IRA and Keogh AccountDeposits affected thereby. For the avoidance of doubt (x) Seller shall be responsible forreporting contributions and distributions on or prior to the Closing Date and (y) Buyer shallbe responsible for all tax reporting with respect to the IRA and Keogh Account Deposits forwhich it serves as successor custodian from and after the Closing Date.     (p) Grant of License. Seller hereby grants to Buyer a nonexclusive,irrevocable, paid up, royalty-free, sublicensable right and license to use the Licensed IPduring the Phaseout Period in connection with Buyer’s maintenance of the Liabilities andownership of the Assets and Branches in accordance with and subject to the following:
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     (1) Beginning on the Closing Date and during the subsequent one hundred fifty(150) days thereafter (the “Phaseout Period”), Buyer will use the LicensedIP as reasonably necessary or desirable to communicate to customers and the publicthe transition of the Assets and Liabilities from Seller to Buyer, and the LicensedIP shall be replaced, removed, covered-over or otherwise obliterated by Buyer, atBuyer’s expense, as promptly as practicable for items existing as of the ClosingDate with Licensed IP affixed to them that are used in the maintenance of theLiabilities and ownership of the Assets and the Branches. Without limitation tothe above, Seller will take all actions as may be needed to enable Buyer’s use ofthe Licensed IP, including access to and redirecting of domain name(s) asapplicable.     (2) Buyer further agrees that any and all permitted uses of the Licensed IPpursuant to the Agreement shall inure to the sole and exclusive benefit of Sellerand Seller Parent.     (3) Buyer agrees that any use of the Licensed IP in the maintenance of theLiabilities and ownership of the Assets and the Branches after the Closing shall beprovided in accordance with all applicable Legal Requirements, and to theadditional terms and conditions as set forth in this Agreement and that the sameshall not reflect adversely upon the good name of Seller, and that the maintenanceof the Liabilities and ownership of the Assets and the Branches will be of a highstandard and skill that is at least commensurate with the standard and skillemployed by Seller immediately prior to the Closing Date.     (q) No later than forty-five (45) calendar days after the date of this Agreement, Sellershall furnish to Buyer, for the Premises at Buyer’s expense, a title commitmentissued by Chicago Title Company (the “Title Company”), naming Buyer as theproposed insured, wherein the Title Company shall agree to issue an ALTA form of owner’sinsurance policy of title insurance (a “Title Commitment”). Each Title Commitmentshall include the Title Company’s requirements to issue a title policy with respect to thePremises, which requirements shall be satisfied by Seller on or before the Closing Date. Ifany of the following shall occur (collectively, a “Title Objection”): (i) any TitleCommitment or other evidence of title or search of the appropriate real estate recordsdiscloses that any party other than Seller or one of its Affiliates has title to the insuredestate covered by the Title Commitment; (ii) any title exception (other than a PermittedLien) is disclosed in Schedule B to any Title Commitment; or (iii) a survey discloses anymatter that affects Buyer’s use of the Premises for the purpose of operating the relevantBranch, then, in each such case, Seller shall use commercially reasonable efforts to cureeach such Title Objection and take all commercially reasonable steps required by the TitleCompany to eliminate each such Title Objection as an exception to the applicable TitleCommitment. Any Title Objection that the Title Company is willing to insure over on termsreasonably acceptable to Buyer is herein referred to as an “Insured Exception.” Theincremental increase in the cost of the premiums as a result of any Insured Exceptionsrelative to what the Title Company would otherwise charge for the title insurance shall beborne by Seller. Except as provided for in the prior sentence, the premiums for such title
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insurance policy, recording costs and other similar costs, fees and expenses, if any,relating to the sale and transfer of the Premises, shall be borne by Buyer.     (r) Transition Services Agreement. If on or prior to Closing, Buyer desires, inits sole and absolute discretion, to engage Seller to provide Buyer with certain transitionsupport services post-Closing of the transaction contemplated hereunder (e.g., servicingarrangements with respect to the Loans and/or the Deposit Liabilities), Buyer and Selleragree to work in good faith to document the particulars of such an arrangement in aTransition Services Agreement (“Transition Services Agreement”), which shall be onterms and conditions reasonably satisfactory to the parties, and shall be entered into at theClosing.     (s) Overdrafts. Prior to the Closing, Seller agrees to cooperate with Buyer andto use its best efforts to indentify those deposit accounts for which provisional credit hasbeen given and that contain uncollected funds.**17.****Survival of Representations, Warranties, and Covenants**.     (a) The representations and warranties of the parties shall survive until the second(2nd) anniversary of the Closing Date except that (i) the representations andwarranties set forth in Sections 9(a) (Corporate Organization), 9(c) (Title to Assets), 9(j)(Power, Authority and Enforceability), 11(a) (Corporate Organization), and 11(b) (Power,Authority and Enforceability) shall survive indefinitely (the “FundamentalRepresentations”), and (ii) the representations and warranties set forth in 9(e)(Environmental Matters), 9(f) (Loans), 9(g) (Deposit Liabilities), 9(h) (Branch Activities),9(o) (Employment; Labor), 9(p) (Tax Matters) and 9(q) (IP) shall survive until the earlier of(1) thirty (30) days following the expiration of the applicable statute of limitations, or(2) five (5) years from the anniversary of the Closing Date (such time periods, asapplicable, are each referred to as the “Survival Period”). The parties heretospecifically intend that the statutory statutes of limitations of Legal Requirementsapplicable to each of the representations and warranties be superseded and replaced by therelevant Survival Period. It is also the intention of the parties hereto that any claim forindemnification or suit initiated with respect to any representations and warranties that isnot asserted by written notice by the Indemnified Party to the Indemnifying Party (whichwritten notice shall contain the amount of such claim and describe the facts then known bythe Indemnified Party relating to such claim, including, without limitation, the reason whythe Indemnified Party believes the claim is subject to indemnification by the IndemnifyingParty) within the relevant Survival Period may not be pursued and is hereby irrevocablywaived after such time.     (b) All of the covenants or other agreements of the parties contained in this Agreementshall survive until fully performed or fulfilled, unless and to the extent thatnon-compliance with such covenants or agreements is (1) waived in writing by the partyentitled to such performance, or (2) otherwise specifically permitted by this Agreement.     **18. ****Name Change, etc****.**Immediately after the Closing (but under no circumstances laterthan the next Business Day immediately following the Closing), Buyer will (a) change the name andlogo on all documents and facilities relating to the Assets and the Liabilities to Buyer’s
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or one of its division’s name and logo, (b) notify all Persons whose Loans, DepositLiabilities or safe deposit agreements are transferred under this Agreement of the consummation ofthe transactions contemplated by this Agreement, and (c) provide all appropriate notices to theFDIC and any other regulatory authorities required as a result of the consummation of suchtransactions. Seller shall cooperate with any commercially reasonable request of Buyer directed toaccomplish the removal of Seller’s signage by Buyer and the installation of Buyer’s signage byBuyer at the Branches; provided, however, that (i) all such costs and expenses of removals and allsuch costs and expenses of installations shall be at the expense of Buyer, (ii) such removals andinstallations shall be performed in such a manner that does not unreasonably interfere with thenormal business activities and operations of the Branches, (iii) such installed signage shallcomply with the Branch Lease and all applicable zoning and permitting laws and regulations, and(iv) such installed signage shall have, if necessary, received the prior approval of the owner orlandlord of the facility, and such installed signage shall be covered in such a way as to makeBuyer signage unreadable at all times prior to the Closing, but such cover shall display the nameand/or logo of Seller (or of Seller or its other Affiliates) in a manner reasonably acceptable toSeller. Buyer agrees not to use any forms or other documents bearing Seller’s or any of itsAffiliates’ name or logo after the Closing without the prior written consent of Seller, and, ifsuch consent is given, Buyer agrees that all such forms and documents to which such consent relateswill be stamped or otherwise marked in such a way that identifies Buyer as the party using the formor other document. As soon as practicable and, in any event, not more than five (5) nor less thantwo (2) calendar days prior to the Closing Date, Buyer will mail new checks reflecting its transitand routing number to customers of the Branches with check writing privileges. Buyer shall use itsreasonable best efforts to cause these customers to begin using such checks and cease using checksbearing Seller’s name.**19.****Contracts****.**          (a) To the extent that the assignment of any of the Assigned Contracts, commitments or otherassets included in the Assets requires the consent of any other party thereto, neither thisAgreement nor any action taken pursuant to its provisions shall constitute an assignment or anagreement to assign any Assigned Contract, commitment or other asset if such assignment oragreement to assign would constitute a breach thereof. Seller shall, prior to the Closing, usereasonable best efforts to obtain the consent of any party to each such Assigned Contract,commitment or other asset to its assignment to Buyer in all cases where such consent is necessary.Buyer agrees to provide reasonable cooperation in connection therewith (including, by providingrelevant information requested by the applicable lessors or other third parties regarding Buyer’sfinancial capability to fulfill the obligations of the Assigned Contracts, but such cooperation byBuyer shall not include Buyer agreeing to any amendment to any Assigned Contract, other than toreflect the change from Seller to Buyer). If any such consent is not obtained, Seller shallcooperate with Buyer in any lawful and reasonable arrangement designed to provide to Buyer thebenefits under any such Assigned Contract, commitment or other asset. Any costs incurred inobtaining any consents or assignments of such Assigned Contracts, commitments or other assets shallbe borne by Seller.          (b) In the case that the transfer and/or assignment of the Branch Lease cannot be obtained,notwithstanding any other provision hereof, Seller shall use commercially reasonable efforts tomake alternative arrangements acceptable to Buyer and cooperate with Buyer in any lawful andreasonable arrangement designed to provide to Buyer the benefits under any such
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Branch Lease. In such event, Seller shall not be obligated to deliver physical possession ofthe subject Branch or Personal Property associated with the subject Branch to Buyer at the Closing.The Parties shall negotiate in good faith a reasonable reduction to the Purchase Price to take intoaccount the Seller’s inability to transfer such Branch Lease(s) and the associated PersonalProperty.**20.****Indemnification****.**     (a) Indemnification by Seller. Seller agrees to indemnify and hold Buyer andany Person directly or indirectly controlling or controlled by Buyer harmless from andagainst any and all Losses that they suffer, incur or sustain arising out of or attributableto:     (1) subject to the relevant Survival Period, any breach of representation orwarranty of Seller contained in this Agreement or any schedule, certificate orother document delivered pursuant hereto or as part of the transactionscontemplated hereby;     (2) any breach of a covenant or agreement on the part of Seller or the failureof Seller to perform any agreement, covenant or obligation of Seller, in each casecontained in this Agreement, or in any other Transaction Agreement;     (3) ownership or operation of the Branches the Premises, the Assets or theLiabilities prior to the Closing;     (4) the commencement of any Insolvency Proceeding with respect to Seller orany claim relating to fraudulent transfers or conveyance regarding the Assets; or     (5) the Excluded Liabilities, the Excluded Deposits, the Excluded Loans, theSeller’s assets that are not Assets and/or Excepted Loans.For purposes of determining the amount of any Losses resulting from, relating to or arising out ofa breach of any representation or warranty or of any covenant, any such representation, warranty orcovenant that is qualified by Material Adverse Effect, materiality or similar qualifier (includingdollar thresholds) shall be read and given effect as if no such qualifier is contained therein.     (b) Indemnification by Buyer. Buyer agrees to indemnify and hold Seller and anyPerson directly or indirectly controlling or controlled by Seller harmless from and againstand Losses that they may suffer, incur or sustain arising out of or attributable to:     (1) subject to the relevant Survival Period, any breach of representation orwarranty of Buyer in this Agreement or any schedule, certificate or other documentdelivered pursuant hereto or as part of the transactions contemplated hereby;     (2) any breach of a covenant or agreement on the part of Buyer or the failureof Buyer to perform any agreement, covenant or obligation of Buyer, in each casecontained in this Agreement, or in any other Transaction Agreement;
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     (3) ownership or operation of the Branches the Premises, the Assets or theLiabilities after to the Closing; or     (4) the Liabilities.For purposes of determining the amount of any Losses resulting from, relating to or arisingout of a breach of any representation or warranty or of any covenant, any such representation,warranty or covenant that is qualified by Material Adverse Effect, materiality or similar qualifier(including dollar thresholds) shall be read and given effect as if no such qualifier is containedtherein.(c) Indemnification Procedures     (1) A claim for indemnification for any matter not involving a Third PartyClaim may be asserted by written notice to the Indemnifying Party, which noticeshall include a reasonable description of the basis for the claim.     (2) In the event that any Legal Proceedings shall be instituted or that anyThird Party Claim is asserted, the Indemnified Party shall as soon as reasonablypracticable cause written notice of the assertion of any Third Party Claim of whichit has Knowledge, which is covered by this Section 20 to be forwarded to theIndemnifying Party.  If the Indemnifying Party acknowledges in writing itsobligation to indemnify the Indemnified Party hereunder against any Losses that mayresult from such Third Party Claim, the Indemnifying Party shall have the right, atits sole expense, to be represented by counsel and to defend against, negotiate,settle or otherwise deal with any Third Party Claim, which relates to any Lossesfor which indemnification is sought hereunder.  If the Indemnifying Party elects todefend against, negotiate, settle or otherwise deal with any Third Party Claim,which relates to any Losses for which indemnification is sought hereunder, it shallwithin ten (10) calendar days (or sooner, if the nature of the Third Party Claim sorequires) of receipt of notice of the Third Party Claim notify the IndemnifiedParty of its intent to do so.  If the Indemnifying Party elects not to defendagainst, negotiate, settle or otherwise deal with any Third Party Claim, whichrelates to any Losses for which indemnification is sought hereunder, or fails tonotify the Indemnified Party of its election within the timeframe provided forherein, the Indemnified Party may then, but only then, defend against, negotiate,settle or otherwise deal with such Third Party Claim and the Indemnifying Partyshall reimburse the Indemnified Party for the actual expenses of defending suchThird Party Claim upon submission of periodic bills.  If the Indemnifying Partyassumes the defense of the Third Party Claim, the Indemnified Party mayparticipate, at its own expense, in the defense of such Third Party Claim;*provided*, that such Indemnified Party shall be entitled to participate in any suchdefense with separate counsel at the expense of the Indemnifying Party only if(i) so requested by the Indemnifying Party to participate, (ii) upon the reasonableadvice of counsel to the Indemnified Party a conflict or potential conflict existsbetween the interests of the Indemnified Party and the Indemnifying Party thatwould make such separate representation advisable, or (iii) such claim is basedupon an
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investigation, inquiry, or other proceeding by a Governmental Entity; and*provided*, *further*, that the Indemnifying Party shall not be required to pay formore than one such counsel (and any appropriate local counsel) for the IndemnifiedParties in connection with such Third Party Claim.  The parties hereto agree tocooperate fully with each other in connection with the defense, negotiation orsettlement of any such Third Party Claim.     (3) After any final judgment or award shall have been rendered by agovernmental body of competent jurisdiction and the expiration of the time in whichto appeal therefrom, or a settlement shall have been consummated, or theIndemnified Party and the Indemnifying Party shall have arrived at a mutuallybinding agreement with respect to a Third Party Claim hereunder, the IndemnifiedParty shall forward to the Indemnifying Party notice of any sums due and owing(including any bills, records or other documentation supporting such sums) by theIndemnifying Party pursuant to this Agreement with respect to such matter and theIndemnifying Party shall be required to pay all of the sums so due and owing to theIndemnified Party by wire transfer of immediately available funds within fiveBusiness Days after the date of such notice. Any indemnification of Buyer pursuantto this Section 20 shall be effected first, by release of funds held by the EscrowAgent in the Escrow Account, and second, by wire transfer of immediately availablefunds from Seller to an account designated in writing by the Buyer within five (5)Business Days after the determination thereof. Any indemnification of Sellerpursuant to this Section 20 shall be effected by wire transfer of immediatelyavailable funds from Buyer to an account designated in writing by Seller withinfive (5) Business Days after the determination thereof.     (4) The failure of the Indemnified Party to give reasonably prompt notice ofany Third Party Claim shall not release, waive or otherwise affect the IndemnifyingParty’s obligations with respect thereto except to the extent that the IndemnifyingParty can demonstrate actual Loss and prejudice as a result of such failure ordelay.     (d) Disputes Regarding Indemnification. If an Indemnifying Party disputes aclaim for indemnification presented by written notice to the Indemnifying Party, as set forthin this Section 20, then such dispute shall be submitted to binding arbitration under therules of commercial arbitration of the American Arbitration Association, as modified herein.The Indemnified Party shall, by written notice to the Indemnifying Party given within ten(10) days of notice from the Indemnifying Party of dispute of a claim for indemnification,appoint an arbitrator. The Indemnifying Party, by written notice to the Indemnified Partywithin ten (10) days thereafter, shall then appoint a second arbitrator. When twoarbitrators have been appointed, as set forth herein, the arbitrators shall agree, ifpossible, upon a third arbitrator who shall be appointed by written notice signed by botharbitrators, a copy of which shall be mailed to Seller and Buyer within five (5) BusinessDays of the appointment of the second arbitrator. In the event that five (5) Business Dayselapse after the appointment of the second arbitrator without notice of an appointment of athird arbitrator, then either party, or both, may in writing request a Judge of the SouthernDistrict Court of Ohio to appoint a third arbitrator. The arbitrators shall follow theFederal
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Rules of Evidence and allow parties to conduct discovery pursuant to the Federal Rulesof Civil Procedure for a period not to exceed thirty (30) days. After receiving evidence andhearing witnesses, if any, the arbitrators shall render a decision determining the amount (ifany) of the claim accompanied by findings of fact and a statement of the reason for thedecision. The decision of the majority of the arbitrators shall be conclusive and bindingupon the parties and may be enforced in any court having jurisdiction thereof. The costs andexpenses of the arbitration shall be borne equally by the parties, but each side shall bearthe expense of its own legal counsel.     (e) Limitations on Indemnification. Notwithstanding the foregoing, there shallbe no liability for an Indemnifying Party under this Section 20, unless the amount of Lossesincurred by an Indemnified Party exceeds Two Hundred Thousand Dollars ($200,000.00) in theaggregate (the “Deductible Amount”) and then only for the amount by which such Lossesexceed the Deductible Amount. An Indemnifying Party’s liability to an Indemnified Partyunder this Section 20 shall be limited to an aggregate amount of Five Million Dollars($5,000,000.00) (the “Indemnification Cap”). Notwithstanding the foregoing underthis Section 20(e), no Deductible Amount will be required to be met for any Losses related toFundamental Representations, Losses incurred under Sections 20(a)(2)-(5), intentionalmisrepresentation, fraud or willful misconduct.     **21. ****Taxes****.**Seller shall be solely responsible for all of Seller’s federal, foreign,state and local income, sales, use, excise and other taxes applicable to its business and to theAssets and all taxes resulting or arising from its payroll arising prior to the Closing with suchtaxes computed as if such taxable period ended as of the close of business on the Closing Date.Any filing, bulk sale, recordation, or similar taxes, which are payable or arise as a result ofthis Agreement or the consummation of the transactions contemplated hereby, shall be the soleresponsibility of Buyer. Notwithstanding the foregoing, (a) general real estate taxes andinstallments of special assessments due and payable with respect to the Branches in the calendaryear 2008 and all prior years will be paid by Seller, and (b) general real estate taxes andinstallments of special assessments due and payable for calendar year 2009 shall be allocatedbetween Seller and Buyer as of the Closing Date where Seller’s share shall be calculated based on afraction, the numerator of which is the number of calendar days in 2009 prior to the Closing andthe denominator is 365, and (c) Buyer shall assume liability for and pay all real estate taxes andinstallments of special assessments “due and payable” after the Closing. Solely for purposes ofthis Section 21, real estate taxes and installments of special assessments shall be deemed to be“due and payable” in the first calendar year in which such payment can be made.     **22. ****No Partnership or Joint Venture**. No activity of Buyer or Seller before, on orafter the Closing shall state or imply that Seller and Buyer are in any way involved as partners,joint venturers or otherwise.     **23. ****Further Assurances**. Except as specifically provided in this Agreement, Sellershall assist Buyer in the ordinary transition of the operations of the Branches and, from time totime, Buyer or Seller, as the case may be, shall cause to be executed and delivered to the otherparty all such other instruments and shall take or cause to be taken such further or other actionas may reasonably and in good faith be deemed by the other party to be necessary or desirable inorder to further assure the performance by Buyer or Seller, as the case may be, of any of theirrespective obligations under this Agreement.
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     **24. ****Amendment; Waiver****.**The terms, provisions, and conditions of this Agreement maynot be changed, modified or amended in any manner except in a writing executed by both parties.The waiver of any breach of any provision of this Agreement by any party hereto shall not be deemedto be a waiver of any preceding or subsequent breach of this Agreement and no such waiver shall beeffective unless in writing signed by the party granting such waiver.     **25. ****Termination of Agreement****.**This Agreement may be terminated, and the transactionscontemplated by this Agreement may be abandoned, at any time before the Closing as follows:     (a) By mutual written consent of Seller and Buyer;     (b) By either Seller or Buyer in the event of a Legal Proceeding, which would permit theterminating party not to consummate the transactions contemplated hereby under the standardset forth in Section 7(e) or 8(e), as applicable; provided, that termination pursuant to thisSection 25(b) shall not relieve the breaching party of liability for Losses arising out of orrelated to such breach;     (c) By either Seller or Buyer (provided that the terminating party is not then in breachof any representation, warranty, covenant or other agreement contained herein) in the eventof a breach by the other of any of its representations, warranties, covenants or agreementscontained in this Agreement, which is not cured or cannot be cured within thirty (30) daysafter written notice of such termination has been delivered to the breaching party and which,in the case of a breach of representation or warranty, would if occurring or continuing onthe Closing Date, permit the terminating party not to consummate the transactionscontemplated hereby under the standard set forth in Section 7(c) or 8(c), as applicable;provided, that termination pursuant to this Section 25(c) shall not relieve the breachingparty of liability for Losses arising out of or related to such breach; or     (d) By either Seller or Buyer, if the Closing does not occur on or before the date thatis the four (4) month anniversary of the date of this Agreement, unless the parties mutuallyagree in writing that it would be reasonable to extend such date for an additional period. Aparty shall not be entitled to terminate this Agreement pursuant to this subsection if thefailure of the Closing to occur by such date shall be due to the failure of the party seekingto terminate this Agreement to perform or observe the covenants or agreements of such partyset forth herein;     (e) By Buyer or Seller (1) immediately upon receipt of notice that any RegulatoryApproval has been denied by a final and non-appealable order; or (2) if Buyer has beenrequested to withdraw any regulatory application that is required for the transactionscontemplated hereby to be consummated; provided, however*,*that Buyer or Seller shall have noright to terminate this Agreement pursuant to this Section 25(e)(2) if such request forwithdrawal is due to such party’s failure to perform the covenants and agreements of suchparty set forth herein; or     (f) By Buyer, if Seller shall have breached its obligations under Section 39;     (g) By Buyer, if an Insolvency Proceeding shall have been commenced with respect toSeller Parent or if proceedings shall have been commenced to place Seller in
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FDIC receivership. Seller shall provide Buyer with advanced written notice in the eventSeller Parent intends to commence an Insolvency Proceeding and shall provide Buyer withwritten notice as soon as Seller or Seller Parent learns of any third party’s intention to doso with respect to Seller Parent or of the FDIC’s intention to do so with respect to Seller.Buyer shall keep confidential in accordance with Section 37 of this Agreement any informationprovided by Seller or Seller Parent to Buyer pursuant to this provision.     (h) By Buyer, if the aggregate amount of the Loans as of the Closing Date does not meetor exceed the Loan Floor.     **26. ****Responsibilities Upon Termination****.**Upon termination of this Agreement, each partyshall bear its own costs and expenses, and none of the parties hereto shall have any liability orfurther obligation hereunder to any other party, except for the obligations in Sections 38 and 39,which shall continue to survive and except that nothing herein will relieve or release any partyfrom liability at law or in equity or for the damages that flow therefrom for any fraud, willfulmisconduct or breach of this Agreement.     **27. ****Entire Agreement****.**This Agreement, including all exhibits, schedules, and annexeshereof, constitutes the entire agreement between the parties with respect to the subject matterhereof and supersedes all other prior agreements and understandings, both written and oral, betweenthe parties with respect to the subject matter hereof; provided, however, that the terms of anyconfidentiality agreement between the parties hereto previously entered into, to the extent notinconsistent with any provisions of this Agreement, shall continue to apply, except that, uponconsummation of the transactions contemplated hereby, Buyer’s confidentiality obligation under suchconfidentiality agreement shall terminate with respect to that portion of the confidentialinformation relating to the Branches, Assets and Liabilities.     **28. ****Notices****.**All notices, requests, demands or other communications hereunder shallbe in writing and shall be given by facsimile or by registered or certified mail return receiptrequested to the other party as follows:       if to the Buyer: **Personal & Confidential**    First Financial Bank, N.A.    Attn: Claude E. Davis, President and CEO    4000 Smith Road, Ste. 400    Cincinnati, Ohio 45209
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       with copies to: First Financial Bank, N.A.    Attn: Greg Gehlmann, General Counsel    4000 Smith Road, Ste. 400    Cincinnati, Ohio 45209         Manatt, Phelps & Phillips LLP    Attn: David M. Grinberg    11355 W. Olympic Blvd.    Los Angeles, CA 90064       if to the Seller:           **Personal & Confidential**    Irwin Union Bank and Trust Company    Attn: Will Miller, President    500 Washington St.    Columbus, Indiana 47201       with a copy to: Irwin Financial Corporation    Attn: Steven R. Schultz, General Counsel    500 Washington St.    Columbus, Indiana 47201         Thomas M. Maxwell    Barnes & Thornburg LLP    11 S. Meridian Street    Indianapolis, IN 46204or to such other address or to such other Person such party may designate in a writing and provideto the other party in the manner provided for herein.     **29. ****Governing Law****.**This Agreement shall be governed by and construed in accordancewith the laws of the State of Ohio and applicable federal laws of the United States.     **30. ****Descriptive Headings****.**The descriptive headings in this Agreement are inserted forconvenience and reference only and are not intended to be part of or to affect the meaning orinterpretation of this Agreement.     **31. ****Parties in Interest; Third Party Beneficiaries****.**This Agreement shall be bindingupon and will inure solely to the benefit of the parties hereto, and to their respective successorsand permitted assigns. Except as provided in Section 20, nothing in this Agreement, expressed orimplied, is intended, or shall be construed, to confer upon or give to any Person (other than theparties hereto and their successors and permitted assigns) any rights or remedies under or byreason of this Agreement or any term, provision, condition, undertaking, warranty, representation,indemnity, covenant or agreement contained herein.     **32. ****Expenses****.**Except as otherwise expressly provided for herein, the parties heretoagree that each shall pay its respective costs and expenses of performance of and compliance
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with the covenants, conditions, and agreements to be performed or complied with by ithereunder. Buyer and Seller will each be responsible for their respective data processingconversion and de-conversion charges, if any, that may be assessed by their respective dataprocessing vendors.     **33. ****Specific Performance****.**The parties agree that irreparable damage would occur inthe event that provisions contained in this Agreement are not performed in accordance with theirspecific terms or were otherwise breached. It is accordingly agreed that the parties shall beentitled to an injunction or injunctions to prevent breaches of this Agreement and to enforcespecifically the terms and provisions of this Agreement (including the parties’ obligation toconsummate this Agreement subject to the terms of this Agreement and provided all requiredRegulatory Approvals have been obtained) in any court of the United States or any state havingjurisdiction, this being in addition to any other remedy to which the parties are entitled at lawor in equity or under this Agreement. Any requirements for the securing or posting of any bond withrespect to any such remedy is hereby waived.     **34. ****Assignability****.**Neither Buyer nor Seller may assign any of their rights,liabilities or obligations under the Agreement without the prior written consent of the other partyto this Agreement, provided that Buyer may assign its rights, liabilities and obligations under theAgreement to any one of its Affiliates. Any purported assignment in contravention of this Section34 shall be void.     **35. ****Counterparts****.**This Agreement may be executed in one or more counterparts, each ofwhich shall be deemed to be an original but all of which together shall constitute one and the sameinstrument. If Buyer and Seller so elect, this Agreement shall be deemed to be executed at suchtime as all parties exchange duly executed signature pages via facsimile or other electronictransmission, provided that each party shall thereafter mail to the other party an original of thisAgreement bearing such party’s signature.     **36. ****Press Releases****.**Prior to the Closing Date, neither Buyer, Seller nor any of theirrespective Affiliates shall directly or indirectly make or cause to be made any press release forgeneral circulation, public announcement or disclosure or issue any notice or communication toemployees with respect to any of the transactions contemplated hereby without the prior writtenconsent of the other party (which consent shall not be unreasonably withheld, conditioned ordelayed). Buyer and Seller each agree that, without the other party’s prior written consent,neither Buyer, Seller nor any of their respective Affiliates shall release or disclose any of theterms or conditions of the transactions contemplated herein to any other Person. Notwithstandingthe foregoing, each party may make such public disclosure as, upon advice of its counsel and withas much prior notice to the other party as reasonably practicable, may be required by LegalRequirement or as necessary to obtain the Regulatory Approvals or to comply with the federalsecurities laws.     **37. ****Confidentiality****.**All information disclosed or furnished by one party to another,whether orally or in writing, in connection with this Agreement and Buyer’s due diligenceexamination of Seller and the documents and other records produced in the course thereof shall bedeemed to be proprietary and confidential information of the disclosing party. The receiving partyagrees not to disclose such information to any third party other than its representatives oremployees or, upon the advice of its counsel, as may be required by Legal Requirement or as
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necessary to obtain the Regulatory Approvals or to comply with the federal securities laws, oras otherwise contemplated in this Agreement or the exhibits, annexes and schedules hereto. Inconnection with any such disclosure, the disclosing party shall give the other party as much priornotice to the other party as reasonably practicable. Regardless of whether the Closing occurshereunder, each party agrees that it shall not use or disclose, and shall cause its Affiliates notto use or disclose the proprietary or confidential information of the other party for any purpose,including the solicitation of customers or business of the other party, for a period of two (2)years. Notwithstanding the foregoing, each party shall protect and hold in confidence anyNonpublic Personal Information (as defined in Title V of the Gramm-Leach-Bliley Act) obtained fromthe other party in compliance with applicable law.     **38. ****Termination Fee****.**          (a) In the event that this Agreement is terminated by Buyer pursuant to Sections 25(b)-(h) orthe parties otherwise fail to consummate the Closing for any reason whatsoever, in either suchevent, other than as a result of a breach by Buyer of any of its representations, warranties,covenants or agreements contained in this Agreement, which is not cured or cannot be cured withinthirty (30) days after written notice of such breach has been delivered to Buyer and which would,if occurring or continuing on the Closing Date, permit the Seller not to consummate thetransactions contemplated hereby under the standard set forth in Section 7(b) or 7(c), asapplicable, then Seller shall pay to Buyer as promptly as reasonably practicable (and in any event,within two (2) Business Days following such termination) by wire transfer in immediately availablefunds to an account specified by Buyer in writing to Seller a payment of Five Million Dollars Even($5,000,000.00) (a “Termination Fee”), and Seller shall provide written unconditionalreleases, in a form reasonably satisfactory to Buyer, of all current employees of Buyer, for suchperiod as they remain employees of Buyer or any of its Affiliates, from any and allnon-solicitation and non-compete agreements and/or arrangements with Seller.          (b) Seller acknowledges that the agreements contained in this Section 38 are an integral partof the transactions contemplated by this Agreement, that, without these agreements, Buyer would notenter into this Agreement and the Termination Fee is not liquidated damages. Buyer shall beentitled to receive payment of the Termination Fee, as well as, for any damages actually incurredby Buyer in excess of the Termination Fee, including, but not limited to, damages resulting fromfraud or intentional misrepresentation on the part of Seller. If Buyer seeks its remedies as setforth in this Section 38 of the Agreement, and Seller pays the amounts owing to Buyer under thisSection 38, then Buyer will not have any right, equitable or otherwise, to require or otherwisecompel Seller to consummate the transactions contemplated by this Agreement. For the avoidance ofdoubt, the amount of damages that Buyer may recover from Seller pursuant to this Section 38 shallnot be governed or limited by Section 20 of this Agreement, which Section 20 only applies to claimsfor indemnification made by Buyer or Seller, if any, following the Closing.          (c) If Seller fails to promptly pay the Termination Fee when due in accordance with theapplicable requirements of Section 38, and, in order to obtain such payments Buyer commences a suitthat results in a judgment against Seller for the Termination Fee, Seller shall pay to Buyer itscosts and expenses (including reasonable attorney’s fees) in connection with such suit.
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     **39. ****Exclusive Dealing**.          (a) During the period from the date of this Agreement to the earlier of the Closing Date orthe termination of this Agreement, neither Seller nor any of its Affiliates or representativesshall take any action to, directly or indirectly, encourage, initiate, or otherwise engage indiscussions or negotiations with, or provide any information to, any Person (other than Buyer andits Affiliates and representatives) concerning any direct or indirect merger, acquisition, stockpurchase or asset purchase, consolidation or other similar business combination transaction ofSeller that includes the Branches, the Assets and/or the Liabilities, in each case, other than thetransactions contemplated by this Agreement. Seller will promptly (but in no event later thantwenty-four (24) hours) communicate to Buyer the terms of any proposal or inquiry that they or anyof their Affiliates or representatives may receive in writing in respect of any such transaction,or of any such negotiations or discussions being sought to be initiated with Seller or any of theirAffiliates or representatives and the identity of such third party initiating any such proposal,inquiry, discussion or negotiation.          (b) Seller shall ensure its respective representatives are aware of the restrictions describedin this Section 39 as reasonably necessary to avoid violations thereof. It is understood that anyviolation of the restrictions set forth in this Section 39 by any representative of Seller shall bedeemed to be a breach of this Section 39 by Seller.     **40. ****Severability**.   If any provision of this Agreement, as applied to any party orcircumstance shall be judged by a court of competent jurisdiction to be void, invalid orunenforceable , the same shall in no way effect any other provision of this Agreement, theapplication of any such provision and any other circumstances or the validity or enforceability ofthe other provisions of this Agreement.*****SIGNATURE PAGE FOLLOWS*****
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     The parties have caused this Agreement to be executed on their behalf by duly authorizedofficers.         **FIRST FINANCIAL BANK, N.A.**           By: