UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15 (d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report: January 15, 1996
ARROW FINANCIAL CORPORATION
(Exact name of Registrant as specified in its charter)
New York 0-12507 22-2448962
State or other jurisdiction of Commission (IRS Employer
incorporation or organization File Number Identification
Number)
250 GLEN STREET, GLENS FALLS, NEW YORK 12801
(Address of principal executive offices) (Zip Code)
Registrant's telephone number: 518 745-1000
Page 1 of 19 pages: Exhibit Index is located on page 5.
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Item 2. Acquisition or Disposition of Assets
On January 15, 1996, Green Mountain Bank, a wholly-owned indirect
subsidiary of the Registrant, sold its eight eastern Vermont branch offices
(the "Branches") to Mascoma Savings Bank, of Lebanon, New Hampshire. The
transaction was effected pursuant to an Agreement for Purchase and Sale of
Branches dated as of June 1, 1995 (the "P&S Agreement") whereby Mascoma
Savings Bank purchased substantially all of the assets of the Branches,
consisting primarily of $41 million in loans and $2 million in other assets
and assumed substantially all of the liabilities, consisting primarily of $100
million in deposits. Green Mountain Bank received a premium of 8 percent on
substantially all of the deposits transferred.
The eight Branches sold to Mascoma Savings Bank are located in Bethel,
Chelsea, Norwich, Hartland, South Strafford and in White River Junction (3),
Vermont. Green Mountain Bank, which is headquartered in Rutland, Vermont,
will continue to offer commercial loans, home mortgages and other financial,
loan and trust products at its other banking locations in central and western
Vermont.
The amount of consideration given in the transaction was determined by
arms-length negotiations and was based upon, among other factors, the book
value of the assets being transferred and the liabilities being assumed.
Other than in connection with the transactions contemplated by the P&A
Agreement, neither Mascoma Savings Bank nor its shareholders have had any
material relationship with the Registrant or any of its affiliates, any
officer or director of the Registrant or any associate of any such director or
officer.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits
( a ) Financial Statements - not applicable
( b ) Pro Forma Financial Information - See "Pro Forma Financial Statements"
on page 3 hereof.
( c ) Exhibits - See Exhibit Index on page 5 hereof.
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<TABLE>
ARROW FINANCIAL CORPORATION
Proforma Condensed Balance Sheet
(in thousands)
January 15, 1996
UNAUDITED
<CAPTION>
Proforma
Arrow Arrow
Financial Branch Financial
Corporation Sale Adjustments Corporation
ASSETS Consolidated Effects Debit Credit Consolidated
<S> <C> <C> <C> <C> <C>
Cash & Due from Banks $ 30,979 $ 884 $ 0 $ 0 $ 30,095
Federal Funds Sold 41,400 0 18,836 (3) 59,293 (6) 943
Investment Securities 187,482 164 0 0 187,318
Loans 514,407 39,959 (1) 16 (4) 0 474,463
Loan Loss Allowance (12,112) (596) 0 0 (11,517)
Fixed Assets, Net 13,893 1,533 0 0 12,360
Real Estate Owned 2,404 0 0 0 2,404
Goodwill 1,920 0 0 181 (7) 1,740
Other Assets 14,733 12 0 35 (8) 14,686
Total Assets $795,106 $41,957 $18,852 $59,509 $712,493
LIABILITIES
Deposits:
Interest Bearing $598,740 $ 86,568 $ 0 $ 0 $512,172
Noninterest Bearing 94,893 14,432 0 0 80,461
Total Deposits 693,632 101,000 (2) 0 0 592,633
Borrowed Money 19,152 0 11,000 (5) 0 30,152
Other Liabilities 14,442 257 0 2,795 (9) 16,980
Total Liabilities 727,226 101,256 11,000 2,795 639,765
SHAREHOLDERS' EQUITY
Common Stock and Surplus 46,917 0 0 0 46,917
Undivided Profits 24,725 0 0 4,848 (10) 29,573
Valuation Reserve - SFAS 115 1,153 0 0 0 1,153
Unallocated ESOP Shares (700) 0 0 0 (700)
Treasury Stock (4,215) 0 0 0 (4,215)
Total Shareholders' Equity 67,880 0 0 4,848 72,728
TOTAL LIABILITIES AND
SHAREHOLDERS' EQUITY $795,106 $101,256 $11,000 $7,643 $712,493
KEY RATIOS:
Loans/Deposits 74.16% n/a n/a n/a 80.06%
Loans/Assets 64.70% n/a n/a n/a 66.59%
Loan Loss Allowance/Loans 2.35% n/a n/a n/a 2.43%
Shareholders' Equity/Loans 13.20% n/a n/a n/a 15.33%
Shareholders' Equity/Assets 8.54% n/a n/a n/a 10.21%
Notes to Unaudited Proforma Statement of Condition: (dollars in thousands)
1) Principal balance of loans sold - approximate yield of 8.70%.
2) Amount of deposits transferred - approximate cost of 3.57%.
3) Represents sum of estimated deposit premium of $7,836 and proceeds from short-term borrowings
of $11,000. Deposit premium will not be determined until pricing period expires on
January 29, 1996.
4) Reversal of SFAS No. 91 net deferred fees.
5) Short-term borrowing advance from Federal Home Loan Bank.
6) Cash equalization payment gross, net amount of $51,457 after deducting estimated deposit premium of
$7,836.
7) Write-off of goodwill assigned to branches sold.
8) Reversal of certain loan fees and capitalized loan servicing rights.
9) Includes estimated income tax effect (net) of $2,558 and accrued professional fees and other
expenses of $237.
10) Estimated net income, after tax, for transaction.
</TABLE>
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by
the undersigned hereto duly authorized.
Dated January 30, 1996
ARROW FINANCIAL CORPORATION
By: s/ John J. Murphy
Executive Vice President, Treasurer & CFO,
(Chief Accounting Officer)
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EXHIBIT INDEX
Exhibit No. Exhibit
2.1 Agreement for Purchase & Sale of Branches
(Incorporated herein by reference
to Form 8-K dated June 1, 1995).
2.2 Supplement to Purchase & Sale Agreement
dated Janaury 12, 1996.
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EXHIBIT 2.2
SUPPLEMENT TO AGREEMENT FOR PURCHASE AND SALE OF BRANCHES
This Supplement (the "Supplement") to the Agreement for Purchase and
Sale of Branches (the "Agreement") dated June 1, 1995 by and among Arrow
Financial Corporation ("AFC"), a New York business corporation, Arrow
Vermont Corporation ("AVC"), a Vermont business corporation, and Green
Mountain Bank ("GMB"), a Vermont-chartered banking corporation, and Mascoma
Mutual Holding Corporation, a federally-chartered mutual thrift holding
company ("MMHC"), and Mascoma Savings Bank, a federally chartered savings
bank ("MSB"), successors in interest to Mascoma Savings Bank, the former
New Hampshire-chartered mutual savings bank is entered into by the parties
on this 12th day of January, 1996.
Capitalized terms defined in the Agreement, and not otherwise defined
herein, shall have the same meanings as set forth in the Agreement when
used herein.
In addition to the provisions of the Agreement describing actions to
be completed in connection with the closing of the sale of eight branches
of GMB to MSB, this Supplement is intended to set forth understandings of
the parties as to matters not specifically addressed therein. This
Supplement shall be deemed to be incorporated into and a part of the
Agreement and any reference to the Agreement in any of the documents
relating to the branch acquisition transaction shall be construed to
include this Supplement.
1. Effective Time. Each of the parties acknowledges that all
regulatory and corporate approvals required to be obtained by it have been
received and that all applicable waiting periods relating thereto will
expire on or before January 14, 1996. Accordingly, the parties intend to
consummate the branch acquisition transaction over the long weekend
commencing January 12, 1996 and to open the acquired branches for business
as part of MSB on January 16, 1996. The closing process will begin at 2:01
P.M on January 12, 1996 and all actions contemplated under the Agreement
and this letter shall be commenced at that time and completed unless
otherwise specified herein by 11:59 P.M. on January 15, 1996 (the "Closing
Period"). The effective time of the closing shall be deemed to be 11:59
P.M. on January 15, 1996. For purposes hereof, said effective time shall
be the Effective Date as such term is used in the Agreement. The term
"Effective Date" is used in this Supplement to mean said effective time.
All deposits, loan balances, prorations and any other financial
calculations will be determined as of the Effective Date.
2. Deposits.
a. Notices. GMB has sent notices to all account holders of the
transfer of their accounts to MSB. The parties understand and agree that
said notices allow any account holder to withdraw his or her funds within
60 days from the date of notice without penalty under Vermont law.
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b. Withdrawals. In light of the foregoing, GMB agrees to promptly
honor any request by a depositor pursuant to Vermont law to withdraw all of
the funds from an account if such request is received prior to the
Effective Date. If any such request is received by GMB on January 12, 1996
or sent by mail postmarked no later than January 13, 1996, the deposit
liabilities associated with the affected account shall be deemed to have
been withdrawn on January 12, 1996 for the purpose of calculating the
deposit premium pursuant to Section 1.03(b) of the Agreement. Likewise,
MSB agrees to promptly honor any request by a depositor pursuant to Vermont
law to withdraw funds from an account if such request is received prior to
the expiration of the 60 day period.
c. Deposit Calculations. For each of the 10 business days preceding
the Effective Date, GMB will furnish to MSB on a daily basis reasonably
detailed information concerning deposit balances so that the calculations
required under Section 1.03 of the Agreement may be made by both parties.
For each of the 10 business days following the Effective Date, MSB will
likewise furnish to GMB on a daily basis reasonably detailed information
concerning deposit balances so that the calculations required under Section
1.03 of the Agreement may be made by both parties.
d. Deposit Records. During the Closing Period GMB will transfer and
deliver to MSB all records and documents relating to deposits as provided
in Section 1.04(d) in the Agreement. In addition to the records and
documents specified therein, GMB shall transfer and deliver IRA agreements,
night drop agreements, stop payment orders, ACH debit authorizations, legal
holds, IRS attachments and any other orders or agreements relating to the
deposits.
e. Sweep Accounts. GMB and MSB have offered or will offer the
services of MSB to account holders of deposits subject to automatic sweep
agreements (called by GMB "Custody Sweep Accounts" or "Mini-Custody Sweep
Accounts") prior to the Effective Date. If the account holders accept
MSB's services, MSB will enter into new sweep agreements with them. The
$100,000,000 deposit limit in Section 1.03(a) of the Agreement shall not
apply to such sweep account deposit balances. MSB shall pay to GMB a
premium equal to 4.0% with respect to any sweep account balances in excess
of the deposit target balances (minimum balances required to be maintained
in the deposit accounts) calculated on the basis of the average daily
amount of such balances for the period of time commencing on the first
business day following the Effective Date and continuing through March 27,
1996. If any sweep account is closed prior to March 27, 1996, the
balances of any such sweep account shall not be included in the calculation
of the 4.0% premium. In addition, MSB shall pay to GMB a premium equal to
8.0% with respect to all
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deposit balances less than or equal to the target
balance of deposit accounts subject to automatic sweep agreements pursuant
to Section 1.03(b) of the Agreement. If certain account holders do not
accept MSB's services, their deposits will be transferred to MSB, and such
deposits will be subject to the standard 8.0% premium provided in Section
1.03(b) of the Agreement.
f. Trust Department Certificates of Deposit. GMB shall identify by
the Effective Date all certificates of deposit or other deposit liabilities
that have been deposited by GMB's Trust Department in the branches being
sold to MSB. Such deposits shall not be transferred to MSB and shall not
be included in any deposit premium calculations.
3. Loans.
a. Loan Documents. A final list of all loans (each a "Loan" and
collectively the "Loans") to be transferred by GMB to MSB pursuant to
Section 1.02(b) of the Agreement shall be prepared by the parties no later
than the Effective Date. During the Closing Period GMB shall transfer to
MSB all original loan documents and collateral relating to each Loan and
originals or copies of correspondence and other pertinent documentation,
including without limitation disclosures required by federal or state laws
and regulations, maintained in its files with respect to each Loan. Any
material deficiencies in the loan files discovered either prior to or
during the Closing Period will be listed by MSB and GMB. In addition, no
later than February 16, 1996, MSB shall have right to inspect each loan
file transferred to it and to give written notice of any other material
deficiencies that it may discover to GMB. GMB shall use its good faith
best efforts to cure all such deficiencies as soon as possible. If GMB is
unable to resolve any such deficiency, if MSB suffers loss as a result of
such deficiency at any time, each of AFC, AVC and GMB jointly and severally
agrees to reimburse MSB for the full amount of any out-of-pocket loss
resulting therefrom. The foregoing obligation of AFC, AVC and GMB shall
not be subject to any time limitation relating to indemnification rights
set forth in Sections 1.09 and 10.05 of the Agreement and shall survive for
the current term of the applicable Loan. Notwithstanding the foregoing, if
any Loan is found to have a deficiency that in the reasonable judgment of
GMB and MSB is so materially adverse that it should or would have been
classified if GMB had known of the deficiency, then GMB shall repurchase
the Loan on demand of MSB on or before February 16, 1996 for the amount of
the outstanding principal balance, accrued interest and late fees, if any.
b. Loan Account Balances. All account balances, including
principal, interest, late fees, origination fees and escrow
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payments, for
the Loans shall be calculated as of the Effective Date. All payments
received prior to the Effective Date shall be applied against obligations
of the borrowers, and MSB shall be responsible for collecting any check
returned for insufficient funds or otherwise that had been previously
credited against an account balance. GMB shall furnish to MSB all
information necessary to enable it to fulfill any tax reporting or other
obligations with respect to the Loans. GMB shall also identify any Loans
with respect to which it has knowledge that the payment of real estate
taxes is overdue.
c. Documents of Transfer.
(i) The promissory note for each Loan transferred to MSB as provided
in Paragraph 3(a) above shall be endorsed and executed by an authorized
officer of GMB by means of an ink stamp as follows:
For value received, Green Mountain Bank hereby assigns, transfers and
conveys to Mascoma Savings Bank, without recourse, all its right,
title and interest in this Promissory Note and any written amendments
and/or modifications thereof currently in effect.
Dated as of January 15, 1996 /s/ John J. Murphy
John J. Murphy
Assistant Secretary
Duly Authorized
(ii) All other documents relating to each transferred Loan shall be
assigned to MSB by GMB by a Blanket Assignment and Assumption Agreement in
a mutually acceptable form executed by authorized officers of GMB and MSB.
A separate assignment of such documents for each Loan shall be prepared for
placement in each loan file, which assignment shall read as follows:
For value received, Green Mountain Bank hereby assigns, transfers and
conveys to Mascoma Savings Bank, without recourse, all its right,
title and interest in any and all loan agreements, notes, mortgages,
assignments of leases and rents, security agreements, guarantees and
other documents of any kind or description relating to the
indebtedness identified in the name of
with respect to the loan identified as Loan Number .
Dated as of January 15, 1996 /s/ John J. Murphy
John J. Murphy
Assistant Secretary
Duly Authorized
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(iii) A draft blanket assignment of mortgages relating to the Loans
to be transferred to MSB by GMB for each applicable registry of deeds shall
be prepared by GMB in a form acceptable to MSB for review by MSB no later
than the commencement of the Closing Period. For each Loan, the blanket
assignments shall list the names of the mortgagor(s), the original
principal amount, the date of the mortgage and the book and page reference
for the mortgage. The blanket assignments shall be prepared by GMB in
final form during the Closing Period for Loans to be transferred to MSB on
or before the Effective Date and shall be delivered to MSB on such date for
recordation by MSB in each of the applicable registries.
(iv) An appropriate Uniform Commercial Code form or certificate of
title assignment, as applicable, shall be completed and endorsed by an
authorized officer of GMB transferring to MSB any security interest held by
GMB in property securing each accepted Loan and shall be recorded by MSB in
all applicable recording offices.
(v) GMB and MSB will execute and deliver in a timely manner any
notices with respect to the Loans required to be given to third parties or
public authorities not addressed in the preceding paragraphs to transfer
GMB's interest in insurance, collateral and any other matter or thing
related to the Loans to MSB.
(vi) Any of the foregoing assignments, notices or documents of
transfer may be executed by an authorized officer of any of the parties by
means of a stamped or facsimile signature of such officer. The parties
agree that any such stamped or facsimile signature shall be deemed to be an
original signature for all purposes and shall be binding on the party on
whose behalf the officer is acting.
d. Notice to Customers. Following transfer of the Loans to MSB, MSB
will send a notice to each customer advising the same of the transfer of
his or her Loan and giving instructions as to future payment of
obligations.
e. Without Recourse. The transfer of the Loans shall be without
recourse except under circumstances that would permit indemnification under
the Agreement or in the event that GMB has engaged in fraudulent or
deceptive conduct to withhold material information about the Loans from MSB
or to mislead MSB about their nature and condition.
f. Transfer of Small Business Administration ("SBA") Loans. In
order to induce the SBA to approve the inter-bank transfer of SBA
guaranteed loans, MSB must state in a letter to
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the SBA that MSB agrees to
assume all obligation for any deficiencies which may have resulted from the
closing or servicing of the transferred SBA loans. GMB hereby agrees that
it will indemnify MSB for any claim by the SBA with respect to any
deficiencies which may have resulted from the closing or servicing of the
transferred SBA loans prior to the branch acquisition closing date.
g. Industrial Revenue Bond ("IRB") Loans. The parties will
determine no later than the Effective Date whether the IRB Loans may be
transferred to MSB. If so, the parties will take such steps as may be
reasonably required to arrange for the transfer by the Effective Date or as
soon as is practicable thereafter; provided, however, that MSB shall be
entitled to have GMB repurchase for an amount equal to the outstanding
principal, accrued interest and late fees, if any: (A) MSB's interest in
the $1,900,000 Vermont Industrial Development Authority Industrial
Development Revenue Bond (Brookside Nursing Home Issue, Series A) issued to
GMB's predecessor, First Twin-State Bank, on June 1, 1986 ("Bond"), and (B)
that subsequent commercial loan to Brookside Nursing Home, Inc. which is
identified by GMB as loan #16194305 and which had a balance of $164,952.62
on December 5, 1995, if on March 27, 1996 the parties have not negotiated
and obtained delivery of an agreement by and among MSB, GMB, The Merchants
Bank and Woodsville Guaranty Savings Bank which: (i) terminates and
replaces that certain Loan Participation Agreement dated as of November 21,
1986 ("Participation Agreement"); (ii) contains releases by the parties to
the Participation Agreement with regard to any claim against MSB as
successor in interest to GMB as owner of the Bond and/or lead participant
under the Participation Agreement or waivers of claims between the parties
with regard to any claims that may have arisen under the Participation
Agreement, in either case prior to the execution of the new agreement;
(iii) names MSB "lead participant" with regard to the Bond, but makes clear
that, due to the fact that MSB is not Trustee under the Mortgage and Trust
Agreement pertaining to the Bond and merely a Bondowner, MSB's
responsibilities as "lead participant" will be limited to monitoring the
financial status of the borrower and exercising those powers granted to a
Bondowner under the Mortgage and Trust Agreement pertaining to the Bond;
(iv) makes clear that MSB's obligation to make payment to the other
participants is limited solely to paying the appropriate percentage of
those payments actually remitted by the Trustee to MSB as Bondowner; and
(v) to the extent not inconsistent with the foregoing, grants MSB the same
rights of control and powers as "lead participant" as would have been the
case under the Participation Agreement. MSB and GMB agree that they shall
cooperate in drafting a replacement agreement as contemplated above and
will consult with
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one another on any negotiations pertaining to its effort
to obtain the agreement contemplated above.
4. Real Estate.
a. Transfer of Title. GMB shall transfer to MSB good and marketable
title to the branch offices that it owns by a warranty deed in a form
acceptable to MSB and to the branch offices that it leases by deeds of
assignment in a form acceptable to MSB consented to by the lessor. GMB
shall also transfer to MSB any options and other rights that it has to such
branch offices or adjacent properties by assignment in a form acceptable to
the parties consented to by the grantor.
b. Leases. GMB shall transfer to MSB the original leases it holds
as lessor of spaces in the branch offices.
c. Prorations. Taxes (including Vermont Taxes as described in
Section 8 hereof), fuel, utility payments, rents and other applicable
financial matters relating to the branch offices shall be prorated as of
the Effective Date.
d. Possession. MSB shall take possession of the branch offices at
the Effective Date, but shall have unfettered access to such offices during
the Closing Period. MSB may change the signage, including the erection of
its own signs, and make other improvements or modifications to the branch
offices as it deems necessary or advisable during the Closing Period. MSB
may begin removing GMB's signage on January 12, 1996 prior to the
commencement of the Closing Period, provided that it leaves a least one
sign identifying a branch as belonging to GMB. At the request of GMB, MSB
will cover newly erected signs prior to the Effective Date. If the closing
does not occur, MSB will immediately remove its signs and replace GMB's
signs and restore the premises to their former condition at its own
expense.
e. Book Value. GMB will furnish to MSB no later than the
commencement of the Closing Period information relating to the book value
of the real property as of the Effective Date in sufficient detail so that
MSB may review the calculations to determine the purchase price pursuant to
Section 1.02 of the Agreement.
5. Furniture, Fixtures, Equipment and other Personalty. GMB will
transfer to MSB good and marketable title to the furniture, fixtures,
equipment and other personalty located in the branch offices at the
Effective Date by bill of sale in a form acceptable to the parties. A list
of such furniture, fixtures, equipment and other personalty is attached to
this Supplement and shall be substituted for Exhibit A(3) to the
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Agreement.
The parties agree that the list reasonably describes the furniture,
fixtures, equipment and other personalty to be transferred hereunder and
that the book value of such furniture, fixtures, equipment and other
personalty is $70,000. MSB may have use of such furniture, fixtures,
equipment and other personalty at the commencement of the Closing Period.
6. Safe Deposit Boxes. GMB shall by blanket assignment assign and
transfer to MSB all of its right, title and interest in safe deposit boxes
located at the branch offices, in addition to keys and records relating
thereto.
7. Contracts. The parties agree that MSB has determined that it
will not assume any service or similar contracts from GMB relating to the
branches. If, however, subsequent to the Effective Date, MSB determines
that it wishes to assume any executory contract, GMB will assign any such
contract to MSB on written request for no additional consideration,
provided MSB indemnifies GMB for any loss caused by MSB's failure to
perform the obligations of the contract.
8. Vermont Taxes. GMB shall be responsible for paying Vermont bank
and other taxes relating to the operation of the branch offices prior to
the Effective Date. MSB shall be responsible for all such Vermont taxes
thereafter.
9. MSB's Access to Records. AFC, AVC and GMB will permit MSB's
officers, employees, accountants, attorneys and agents to have access to
its books and records and to discuss matters relating to the operation of
GMB's branch offices during the Closing Period to facilitate the closing.
10. Payments. The parties shall determine on or before the Effective
Date the net amount of cash or its equivalent to be paid by GMB to MSB
pursuant to Section 1.02(d) of the Agreement. Said net amount shall be
paid at the opening of business on January 16, 1996 by wire transfer. Coin
and currency (not including any foreign currency which shall be removed) at
the branch offices at the commencement of the Closing Period shall be
inventoried by representatives of GMB and MSB and shall be transferred to
MSB at the Effective Date in partial payment thereof. Upon the expiration
of the 10th business day following the Effective Date, the parties shall
determine within the next 10 business days (i) whether any adjustment is
required in the amount of the deposit premium calculated pursuant to
Section 1.03(b) of the Agreement or (ii) whether any other financial
adjustments are required with respect to any assets or liabilities
transferred from GMB to MSB or any other matter related to or arising in
connection with the closing based on a post-closing review. If so, the
parties shall cooperate with
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each other in calculating what amount, if any,
is due one party or the other, and the amount shall be paid before the end
of the next business day. Thereafter, the parties shall wait until March
27, 1996 and make a final determination as to whether any final adjustment
in any payment needs to be made to reflect the terms and conditions of the
Agreement. If so, any payment required to be made shall be completed prior
to April 12, 1996.
11. Disputes. If the parties disagree on any financial calculation
or other matter set forth in the Agreement, they shall use their best
efforts to resolve the disagreement as soon as is reasonably practicable,
but if they fail to so resolve their disagreement within 30 days after any
payment is due or action is required to be taken under the Agreement, the
matter shall be submitted to binding arbitration before an arbitrator
appointed by the American Arbitration Association, whose determination
shall be final and nonappealable.
12. Indemnification. The parties have made various representations
and warranties in the Agreement which are subject indemnification
provisions set forth in Section 1.09 of the Agreement. In order to limit
liability under such indemnification provisions and to try to resolve any
claim, loss or liability prior to an action, suit or proceeding being filed
in connection therewith, the parties agree that if a claim, loss or
liability is asserted or if any party discovers circumstances that could
lead to a claim, loss or liability being asserted, the claimant will give
prompt written notice of the same to the indemnitor within 30 days of such
assertion or discovery, and the parties will consult as to the most cost
effective manner in which to resolve the matter. If the parties agree as
to the resolution, the indemnitor will reimburse the claimant for any out-of-
pocket expenses it incurs in connection with the matter within 30 days
of the presentation of the claimant's statement of expenses to the
indemnitor. If the parties do not agree, the claimant may resolve the
matter in any manner it believes is appropriate and present a statement of
its out-of-pocket expenses incurred in connection with the matter to the
indemnitor. If the indemnitor does not reimburse the claimant within 30
days of presentation of the statement, the dispute will be submitted to an
arbitrator pursuant to Paragraph 11 above. If an action, suit or
proceeding is filed with respect to any such claim, loss or liability, the
parties will follow the same process set forth in this Paragraph 12.
13. Post-Closing Matters. Following the closing the parties will
continue to cooperate to facilitate the transfer of the assets and
liabilities from GMB to MSB as contemplated by the Agreement.
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a. Trust Department. As an accommodation to GMB, MSB will
allow its Trust Department to lease mutually agreeable space on the second
floor of the Norwich branch office until June 30, 1996 at a rent of $330
per month (prorated for the first month) so long as the Trust Department
continues to be operated by AFC as a direct or indirect subsidiary of AFC.
GMB and MSB shall execute a lease in a mutually agreeable form. Upon
expiration of the lease period, the Trust Department shall vacate the
premises, leaving them in good repair and condition, reasonable wear and
tear excepted.
b. Further Assurances. (i) After the Effective Date GMB shall
give such further assurances to MSB, and shall execute, acknowledge and
deliver all such acknowledgements and other instruments and take such
further action as may be necessary or appropriate effectively to vest in
MSB full legal and equitable title, ownership and possession of the assets,
clear of all liens and encumbrances and to effectuate a proper transfer of
the liabilities to MSB. GMB will execute a limited power of attorney to
facilitate such vesting.
(ii) After the Effective Date MSB shall give such further
assurances to GMB and shall execute, acknowledge and deliver all such
acknowledgements and other instruments and take such further action as may
be necessary and appropriate effectively to relieve and discharge GMB from
any obligations remaining under the liabilities assumed by MSB.
(iii) After the Effective Date, GMB shall give such further
assurances to MSB, and shall deliver to MSB, at commercially reasonable
times mutually agreed to by the parties, all such documents, instruments,
or other items, including account history information, that MSB may
reasonably request to further its effective management of the assets and
liabilities.
c. Processing of Items. In order to accomplish a smooth
transition between GMB and MSB relative to the processing of debits and
credits to the Deposit Accounts to be transferred to MSB under this
Agreement (referred to for purposes of this Paragraph 13 as the
"Transferred Accounts"), during the 90 day period (180 days for ACH
electronic debits and credits) following the Effective Date (the "Post-Closing
Processing Period"), GMB and MSB agree to cooperate in good faith
in the post-closing processing of items and agree to the terms of this
Paragraph 13. The parties intend that the Vermont Uniform Commercial Code,
applicable federal regulations and usual banking practice shall govern the
processing of such items during the Post-Closing Processing Period, except
to the extent otherwise agreed to below. This Paragraph 13 and the other
provisions of this Agreement constitute an agreement between GMB and MSB
only, and
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no third party shall be, or shall be deemed to be, entitled to
rely on, or to receive any direct or indirect benefit from, any of the
provisions hereof. In furtherance of the provisions of this Paragraph 13,
MSB shall maintain a demand deposit account ("MSB"s DDA") at GMB during the
Post-Closing Processing Period to be debited or credited as provided
hereunder.
d. Delivery of Items. Unless GMB provides MSB with prior
notice of a delay, GMB shall by 3:00 p.m. on the business day following the
banking day on which GMB receives any deposit ticket, item or information
for deposit to or debit from any of the Transferred Accounts, deliver to
MSB at its main office at 67 North Park Street, Lebanon, New Hampshire,
such deposit tickets, items or information. If due to delay by GMB for
which no notice is given as provided above, in delivering an item to MSB by
the deadline specified in Paragraph 13(d) and (e) hereof, MSB or GMB fails
to meet applicable deadlines for dishonoring such item, then upon MSB's
request GMB shall promptly credit MSB's DDA for the amount of such item,
subject to prompt reversal if MSB is able to return such item (without
subsequent charge back) notwithstanding GMB's failure to meet such
deadlines.
e. Post-Closing Items Drawn on GMB. During the Post-Closing
Processing Period, GMB shall: (i) process all items which are drawn on GMB
with respect to the Transferred Accounts and are presented to GMB for
payment in any manner including without limitation through GMB's Federal
Reserve cash letters or correspondent bank cash letters or deposited by
GMB's customers, correspondent banks or others; (ii) outsort such items and
deliver them to MSB as provided in Paragraph 13(d); (iii) notify MSB by
telephone by 4:00 p.m. of the banking day on which GMB has received any
item equal to or in excess of $2,500 that GMB has received such item and
deliver to MSB by such time on such day a copy of each such item by
facsimile, whereupon MSB will direct GMB to either return or pay such items
and GMB shall promptly comply with such direction; and (iv) debit MSB's DDA
for the amount of such items that GMB pays pursuant to directions from MSB
hereunder.
f. Items Drawn on GMB and Returned by MSB. (i) In the event
that MSB shall return any item(s) drawn on GMB and any of the Transferred
Accounts, MSB shall prepare and process its returns in MSB's normal
fashion. In the event that such items are re-charged to GMB for any reason
other than GMB's failure to comply with its obligations hereunder, GMB may
then debit MSB's DDA for the amount of such item(s) re-charged to GMB,
whereupon GMB and MSB shall cooperate in collection on such item.
(ii) Any items that were credited for deposit to a
Transferred Account or cashed against a Transferred Account at a
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branch
sold to MSB on or before the Effective Date and are returned unpaid within
six (6) months after the Effective Date ("Returned Items") will be handled
as follows:
1. MSB Charge. If MSB's DDA is charged for the
Returned Item, MSB will use its best efforts to obtain reimbursement from
the account to which, or from the party to whom, the Returned Item was
credited. If there are sufficient funds in the account to which such
Returned Item was credited or any other accounts on deposit at a former
branch of GMB or at any other branch office of MSB standing in the name of
the party liable for such Returned Item, MSB will debit, if and to extent
allowed by law, any or all of such accounts in an amount equal in the
aggregate to the Returned Item. If those accounts do not contain funds
sufficient to reimburse MSB fully, GMB will, upon notice from MSB,
immediately repay to MSB the amount of the Returned Item and MSB will
assign the Returned Item to GMB for collection.
2. GMB Charge. If GMB is charged for the Returned Item
and if there are sufficient funds in the account to which such Returned
Item was credited or any other accounts on deposit a former GMB branch or
at any other branch office of MSB standing in the name of the party liable
for such Returned Item, MSB will debit, if and to the extent allowed by
law, any or all of such accounts in an amount equal in the aggregate to the
Returned Item and shall repay that amount to GMB. If there are not
sufficient funds in the accounts, MSB will have no obligation to repay GMB
unless and until MSB obtains reimbursement from the party liable for the
Returned Item. GMB shall forward to MSB all Returned Items on the same
business day that such Returned Items are received by GMB.
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IN WITNESS WHEREOF, each of the parties has caused this
instrument to be executed on its behalf by its duly authorized officers and
its corporate seal to be affixed hereto, as of January 12, 1996.
ARROW FINANCIAL CORPORATION
By: s/ Michael F. Massiano
Michael F. Massiano
President
250 Glen Street
Glens Falls, New York
ARROW VERMONT CORPORATION
By: s/ Michael F. Massiano
Michael F. Massiano
President
80 West Street
Rutland, Vermont
GREEN MOUNTAIN BANK
By: s/ John J. Murphy
John J. Murphy
Treasurer/Chief Financial Officer
80 West Street
Rutland, Vermont
MASCOMA MUTUAL HOLDING CORPORATION
By: s/ Stephen F. Christy
Stephen F. Christy
President
67 North Park Street
Lebanon, New Hampshire 03766
MASCOMA SAVINGS BANK:
By: s/ Stephen F. Christy
Stephen F. Christy
President
67 North Park Street
Lebanon, New Hampshire 03766
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LIST OF ATTACHMENTS
Exhibit A(3) Furniture, Fixtures and Equipment
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