UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) April 12, 1996
PROGRESSIVE BANK, INC.
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(Exact name of registrant as specifies in its charter)
New York 0-15025 14-1682661
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(State or other (Commission (I.R.S. Employer
jurisdiction File Number Identification No.)
incorporation)
1301 Route 52, Fishkill, New York 12524
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(Address of principal executive offices) (Zip Code)
(914) 897-7400
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(Registrant's telephone number, including area code)
Not Applicable
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(Former name, former address and former fiscal year,
if changed since last report.)
Item 2. Acquisition or Disposition of Assets
(a) On April 12, 1996 (the "Closing Date"), Pawling Savings Bank, a New York
state- chartered stock savings bank ("Pawling") and subsidiary of Progressive
Bank, Inc., a New York corporation (the "Company"), (i) acquired from
GreenPoint Bank ("GreenPoint"), a subsidiary of GreenPoint Financial Corp.,
two consumer banking branches in Rockland County, New York (the "Branches"),
including certain personal property ("Personal Property"), leasehold
improvements, and real property ("Real Property") associated with the
Branches, rights under certain leases, loans secured by or related to the
customer deposits domiciled in the Branches (the "Passbook Loans"), other
contracts related to the operation of the Branches, safe deposit-box
businesses and records associated with the Branches, as well as cash on hand
at the Branches on the Closing Date (the acquired assets together, the
"Assets"), and (ii) assumed approximately $154.0 million of customer deposit
liabilities (the "Deposits") associated with the Branches (the acquisition
and assumption together, the "Transactions"). The Transactions were affected
pursuant to the terms and conditions of the Purchase of Assets and Liability
Assumption Agreement, dated as of December 26, 1995, by and between Pawling
and GreenPoint (the "Agreement"), as was previously disclosed in the Current
Report on Form 8-K filed by the Company on December 26, 1995. Approvals from
the Federal Deposit Insurance Corporation and the New York Banking
Department, and all other necessary regulatory approvals, were received prior
to the consummation of the Transactions.
In consideration for its assumption of the Deposits, Pawling received the
Assets and $152.8 million (the "Payment") in cash (an amount equal to the
amount of the Deposits on the Notification Date (March 11, 1996) less $10.7
million related to (i) the purchase price of Personal Property, (ii) the net
book value of leasehold improvements, (iii) the purchase price of the Real
Property, (iv) cash on hand, (v) the amount of Passbook Loans acquired and
(vi) the deposit premium (the "Deposit Premium"). The amounts of the
Deposits, cash on hand, Passbook Loans, and the Deposit Premium are subject
to certain post-closing adjustments to reflect exact amounts at the close of
business on the Closing Date.
A copy of the Press Release dated April 15, 1996, filed as Exhibit (2) to
this Report, is incorporated herein by reference.
(b) Prior to the Transactions, GreenPoint employed the Assets for the
purpose of engaging in consumer banking activities in the State of New York,
and Pawling intends to employ the Assets for a similar purpose.
Item 7. Financial Statements and Exhibits
(a) Financial Statements of Businesses Acquired
Since the assets acquired and the liabilities assumed do not constitute a
business which has continuity, historical financial statements are not
required or relevant and are, accordingly, not included herein. Information
on deposits assumed and loans acquired to be filed by amendment.
(b) Pro Forma Financial Information.
To be filed by amendment.
(c) Exhibits
1. Purchase of Assets and Liability Assumption Agreement, dated as of
December 26, 1995, by and between Pawling Savings Bank and GreenPoint Bank.
2. Press release dated April 15, 1996.
SIGNATURES
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 hereunto duly authorized.
PROGRESSIVE BANK, INC.
(Registrant)
/s/ Robert Gabrielsen
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By: Robert Gabrielsen, Treasurer
Principal Financial Officer and
Principal Accounting Officer
EXHIBIT 1
PURCHASE OF ASSETS AND LIABILITY ASSUMPTION AGREEMENT
BETWEEN
GREENPOINT BANK
AND
PAWLING SAVINGS BANK
Dated December 26, 1995
TABLE OF CONTENTS
PAGE NO.
ARTICLE I - DEFINITIONS
1.1 Agreement 1
1.2 Assets 1
1.3 Assumed Contracts 1
1.4 Banking Offices 2
1.5 Banking Office Employees 2
1.6 Cash on Hand 2
1.7 Chestnut Ridge Banking Office 2
1.8 Closing 2
1.9 Closing Date 2
1.9a Customer Notification Date 2
1.10 Deposit Account 2
1.11 Deposit Liabilities 2
1.12 Deposit Premium 3
1.13 Estimated Payment Amount 3
1.14 Excluded Deposits 3
1.15 Execution Date 3
1.16 Final Deposit Payment Amount 3
1.17 Final Payment Amount 4
1.18 Final Purchase Price 4
1.19 Hazardous Substances 4
1.20 Leased Real Property 4
1.21 Leasehold Improvements 4
1.22 Liabilities 4
1.23 Owned Real Property 4
1.24 Permitted Exceptions 4
1.25 Personal Property 4
1.26 Preliminary Deposit Payment Amount 4
1.27 Preliminary Purchase Price 4
1.28 Purchase Price 4
1.29 Real Property Lease 5
1.30 Real Property Purchase Price 5
1.31 Regulatory Approvals 5
1.32 Regulatory Approval Date 5
1.33 Restricted Period 5
1.34 Safe Deposit Boxes 5
1.35 Safe Deposit Business 5
1.36 Safe Deposit Business Purchase Price 5
1.37 Title Commitment 5
1.38 Transferred Employees 5
1.39 Wesley Hills Banking Office 5
ARTICLE 2 - TRANSFER OF ASSETS; ASSUMPTION OF LIABILITIES
2.1 Transfer of Assets 6
2.2 Assumption of Liabilities 6
2.3 Books and Records 6
2.4 IRA and Keogh Accounts 7
2.5 Sale of Safe Deposit Business 7
ARTICLE 3 - TERMS OF PURCHASE AND ASSUMPTION
3.1 Purchase Price 7
3.2 Deposit Payment Amount 8
3.3 Estimated Payment Amount 8
3.4 Allocation 8
3.5 Apportionment 9
3.6 Taxes 10
3.7 Non-Solicitation of Deposits; Covenant Not-to-Compete 11
3.8 Trademarks, etc. 12
ARTICLE 4 - PLACE OF CLOSING 12
ARTICLE 5 - CONDITIONS PRECEDENT
5.1 Conditions Precedent to the Obligations of Both Parties 12
5.2 Conditions Precedent to the Obligations of Purchaser 13
5.3 Conditions Precedent to the Obligations of Seller 15
ARTICLE 6 - COVENANTS AND AGREEMENTS OF THE PARTIES
6.1 Review; Confidentiality 15
6.2 Conduct of Business Pending Closing 16
6.3 Regulatory Approvals 17
6.4 Further Assurances by Seller 18
6.5 Further Assurances by Purchaser 18
6.6 Consents 18
6.7 Indemnification by Seller 19
6.8 Indemnification by Purchaser 20
6.9 Hazardous Substances 20
6.10 Notification of Customers; Change of Name 22
6.11 Employees 24
6.12 Liaisons 26
6.13 Tax Information and Withholding 26
6.14 Title Insurance 26
6.15 Damage or Destruction; Condemnation; Title Insurance 26
6.16 Electronic Installations 28
6.17 Training and Orientation 29
6.18 Data Processing 30
6.19 Assumed Contracts 30
6.20 Real Property 30
6.21 Transactions by Purchaser 30
ARTICLE 7 - CLOSING TRANSACTIONS
7.1 Estimate and Payment of Estimated Payment Amount 31
7.2 Documents, Instruments, Certificates, Etc.
to be Delivered by Seller at the Closing 31
7.3 Documents, Instruments, Certificates, Etc.
to be Delivered by Purchaser at the Closing 33
7.4 Title Insurance Policy 34
ARTICLE 8 - REPRESENTATIONS AND WARRANTIES OF SELLER
8.1 Corporate Organization 34
8.2 Authorization 34
8.3 Non-Contravention 34
8.4 Litigation 35
8.5 Finders or Brokers 35
8.6 Compliance with Applicable Law 35
8.7 Leased Real Property and Assumed Contracts 35
8.8 Title to Personal Property 36
8.9 Taxes 36
8.10 Insurance 36
8.11 Deposits 36
8.12 Deposit Liabilities 36
8.13 Account Loans 36
8.14 Condemnation 37
8.15 Time of Representations 37
8.16 Representations Complete 37
ARTICLE 9 - REPRESENTATIONS AND WARRANTIES OF PURCHASER
9.1 Corporate Organization 37
9.2 Authorization 37
9.3 Non-Contravention 38
9.4 Litigation 38
9.5 Finders or Brokers 38
9.6 Compliance with Applicable Law 38
9.7 Deposits 38
9.8 Time of Representations 39
9.9 Representations Complete 39
9.10 Community Reinvestment Act 39
ARTICLE 10 - SURVIVAL OF COVENANTS, REPRESENTATIONS AND
WARRANTIES AND INDEMNIFICATION
10.1 Survival of Covenants and Representations and Warranties 39
10.2 Indemnity Procedures 39
ARTICLE 11 - TERMINATION
11.1 Termination of Agreement 40
11.2 Immaterial Breach 41
11.3 Waiver of Right to Terminate 41
11.4 Effect of Termination 41
ARTICLE 12 - EFFECT ON THIRD PARTIES 41
ARTICLE 13 - SETTLEMENT, ADJUSTMENTS AND TRANSITIONAL MATTERS
13.1 Post-Closing Calculation and Settlement 42
13.2 Disputes as to Calculations 42
13.3 Check Processing and Reimbursements 43
13.4 ACH Transactions 43
13.5 Items in Transit 44
13.6 Records and Financial Information 44
13.7 Survival 44
ARTICLE 14 - MISCELLANEOUS
14.1 Expenses 44
14.2 Notices 44
14.3 Successors and Assigns 45
14.4 Third-Party Beneficiaries 45
14.5 Counterparts 46
14.6 Governing Law 46
14.7 Captions 46
14.8 Entire Agreement; Limitations 46
14.9 Confidentiality 46
14.10 Press Releases 46
14.11 Specific Performance 47
14.12 Time of the Essence 47
14.13 Schedules, Exhibits and Headings 47
14.14 Survival 47
SCHEDULES
Schedule 1.3 Assumed Contracts
Schedule 1.6 Cash on Hand
Schedule 1.7 Chestnut Ridge Banking Office
Schedule 1.25 Personal Property
Schedule 1.30 Fair Market Value of Owned Real Property
Schedule 2.1 Transfer of Assets
Schedule 5.2(f) Title Commitment
Schedule 6.2(i) Conduct of Business Pending Closing
Schedule 6.9(b) Fair Market Rent for Net Lease of Owned Real Property
Schedule 6.9(d) Hazardous Substances Reduction
Schedule 6.11 Employees
Schedule 6.15(f) Title Problem Reduction
Schedule 8.7 Lease
Schedule 8.12(a) Deposit Liabilities (Customer Notification Date)
Schedule 8.12(b) Deposit Liabilities (Closing Date)
Schedule 8.13 Account Loans
EXHIBITS
Exhibit A Preliminary Settlement Statement
Exhibit B Assignment of Lease and Assumption Agreement
Exhibit C Landlord's Consent to Assignment and Estoppel
Exhibit D Assignment and Assumption Agreement
Exhibit E Bill of Sale and Assumption Agreement
Exhibit F Form of Opinion of Counsel to Seller
Exhibit G Form of Seller's Officer's Certificate
Exhibit H Certificate of Non-Foreign Status
Exhibit I Form of Opinion of Counsel to Purchaser
Exhibit J Form of Purchaser's Officer's Certificate
Exhibit K Final Settlement Statement
Exhibit L Retirement Account Transfer Agreement
PURCHASE OF ASSETS AND LIABILITY ASSUMPTION AGREEMENT
This Agreement is made and entered into this 26th day of December, 1995 by
and between GreenPoint Bank, a New York banking corporation having an office
located at 41-60 Main Street, Flushing, New York ("Seller"), and Pawling
Savings Bank, a New York banking corporation with an office located at 1301
Route 52, Fishkill, New York ("Purchaser").
W I T N E S S E T H:
WHEREAS, Seller desires to sell certain depository accounts and certain
assets attributable to two (2) of its branch banking offices in Rockland
County, New York, and
WHEREAS, Purchaser is willing to acquire such assets and to assume the
deposits and certain other liabilities attributable to such banking offices
upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and of the mutual covenants
and agreements herein contained, and for other good and valuable
consideration the receipt and sufficiency of which are hereby acknowledged,
the parties hereto do hereby agree as follows:
ARTICLE I
DEFINITIONS
For purposes of this Agreement, the following terms shall have the meanings
set forth in this Article I:
1.1 Agreement. "Agreement" shall mean this Purchase of Assets and Liability
Assumption Agreement.
1.2 Assets. "Assets" shall mean, subject to any adjustments described
elsewhere in this Agreement, (a) books and records of Seller as described in
Section 2.3 hereof; (b) all of Seller's right, title and interest in and to
the Assumed Contracts, the Owned Real Property, the Leased Real Property and
the Safe Deposit Business; (c) Cash on Hand at the Banking Offices at the
close of business on the Closing Date; (d) the Personal Property; and (e) the
Account Loans (as defined in Section 8.13).
1.3 Assumed Contracts. "Assumed Contracts" shall mean all contracts and other
agreements of Seller attributable to the Banking Offices, except for the Real
Property Lease, that Purchaser elects to assume hereunder in accordance with
Section 6.19. All such contracts and agreements as of the date hereof are set
forth on Schedule 1.3.
1.4 Banking Offices. "Banking Offices" shall mean the Seller's two (2)
branch banking offices located at Wesley Hills and Chestnut Ridge, New York.
1.5 Banking Office Employees. "Banking Office Employees" shall have the
meaning as set forth in Section 6.11 hereof.
1.6 Cash on Hand. "Cash on Hand" shall mean all cash on hand at the Banking
Offices as of the close of business on the Closing Date, including vault
cash, ATM cash, petty cash, teller's cash and prepaid postage. The Cash on
Hand shall be reflected in Schedule 1.6 to be delivered by Seller pursuant to
Section 7.1(a) hereof and as finally determined by a cash count to be
mutually conducted by Seller and Purchaser pursuant to Section 13.1 hereof.
1.7 Chestnut Ridge Banking Office. "Chestnut Ridge Banking Office" shall
mean Seller's banking office at 770 Chestnut Ridge Road, Chestnut Ridge, New
York, as more particularly described in Schedule 1.7.
1.8 Closing. "Closing" shall have the meaning as set forth in Article 4.
1.9 Closing Date. "Closing Date" shall mean the close of business on the date
when (i) the Assets are transferred; (ii) the Liabilities are assumed; (iii)
the payment of the Estimated Payment Amount is made as provided in Article 7;
and (iv) the information regarding the Deposit Liabilities is converted from
the data processing system of Seller to the data processing system of the
Purchaser. The Closing Date shall occur within 30 days after all conditions
set forth in Article 5 for the transactions contemplated by this Agreement
have been satisfied and on a date that is mutually agreeable to both parties,
provided that in no event shall Seller be required to close during the period
from and including April 8 to May 2, 1996.
1.9a Customer Notification Date. The "Customer Notification Date" shall have
the meaning as set forth in Section 6.10(f) hereof.
1.10 Deposit Account. "Deposit Account" shall mean any account located at one
of the Banking Offices pursuant to which a deposit liability is incurred by
the Seller.
1.11 Deposit Liabilities. "Deposit Liabilities" shall mean all Deposit
Accounts, other than the Excluded Deposits, attributable to the Banking
Offices (plus accrued interest payable thereon as of the close of business on
the Closing Date) including Super-G, NOW accounts, Super-NOW accounts,
demand, passbook, money market, time deposits and IRA and Keogh accounts
(other than Keogh accounts excluded pursuant to Section 2.4(c)).
1.12 Deposit Premium. The "Deposit Premium" shall mean an amount equal to
6.25% of the aggregate Deposit Liabilities as of the close of business on the
Customer Notification Date, provided that if within five (5) days prior to, or
at any time subsequent to, the Customer Notification Date there occurs damage
or destruction to one of the Banking Offices as provided in Section 6.15
hereof, then the Deposit Premium for the Deposit Liabilities related to that
Banking Office shall mean an amount equal to 6.25% of the aggregate Deposit
Liabilities at that Banking Office as of the date of Seller's written notice
to Purchaser that the damage or destruction has been repaired. Notwithstanding
the foregoing, if notices have been sent to customers and a delay in Closing
the transaction occurs without fault on the part of the Purchaser (other than
an event provided for in Section 6.15), then the Deposit Premium shall be
calculated as at that date which is thirty (30) days prior to the Closing
Date.
1.13 Estimated Payment Amount. The "Estimated Payment Amount" shall be an
amount calculated as follows:
Preliminary Deposit Payment Amount
less Preliminary Purchase Price
less real property prorations and other apportionments pursuant to
Section 3.5.
1.14 Excluded Deposits. "Excluded Deposits" shall mean any Deposit Accounts
that are:
(i) carried by Seller as abandoned accounts currently being held for payment
to the Comptroller of the State of New York in accordance with the Abandoned
Property Law of the State of New York;
(ii) Except as herein otherwise provided, held by Seller in a fiduciary
capacity under any trust, executorship, administration, guardianship or other
representation or capacity and which are not transferable to Purchaser
without court order or consent of the beneficiary, provided that IRA and
Keogh accounts (other than Keogh accounts as set forth in (iii) below) shall
not be considered Excluded Deposits as a result of this subsection; or
(iii) Keogh accounts which become Excluded Deposits pursuant to Section 2.4
(c).
1.15 Execution Date. The "Execution Date" shall mean the date as of which
this Agreement has been executed by both Seller and Purchaser.
1.16 Final Deposit Payment Amount. The "Final Deposit Payment Amount" shall
mean the Deposit Payment Amount calculated pursuant to Section 3.2 in
reliance on final Schedule 8.12(b) as delivered by Seller pursuant to Section
13.1.
1.17 Final Payment Amount. The "Final Payment Amount" shall be an amount
calculated as follows:
Final Deposit Payment Amount
less Final Purchase Price
less real property prorations and other
apportionments pursuant to Section 3.5.
1.18 Final Purchase Price. The "Final Purchase Price" shall mean the Purchase
Price calculated pursuant to Section 3.1 of this Agreement in reliance upon
final Schedule 1.6 as delivered by Seller pursuant to Section 13.1.
1.19 Hazardous Substances. "Hazardous Substances" shall mean chemicals,
pollutants, contaminants, wastes and substances that have been defined as
toxic or hazardous by any applicable federal, state or local law or
regulation.
1.20 Leased Real Property. "Leased Real Property" shall mean the Wesley Hills
Banking Office.
1.21 Leasehold Improvements. The "Leasehold Improvements" shall mean the
leasehold improvements at the Leased Real Property.
1.22 Liabilities. "Liabilities" shall mean all Deposit Liabilities and all
obligations of Seller with respect to the Assumed Contracts, the Real
Property Lease and the ownership and operation of the Owned Real Property,
the Leased Real Property and the Safe Deposit Business.
1.23 Owned Real Property. "Owned Real Property" shall mean the Chestnut Ridge
Banking Office.
1.24 Permitted Exceptions. "Permitted Exceptions" shall have the meaning as
set forth in Section 5.2(f).
1.25 Personal Property. The term "Personal Property" shall mean the personal
property as shown on Schedule 1.25 hereto.
1.26 Preliminary Deposit Payment Amount. The "Preliminary Deposit Payment"
shall mean the Deposit Payment Amount calculated pursuant to Section 3.2 in
reliance upon Schedule 8.12(b) as delivered by Seller pursuant to Section
7.1(a).
1.27 Preliminary Purchase Price. The "Preliminary Purchase Price" shall mean
the Purchase Price calculated pursuant to Section 3.1 of this Agreement and
in accordance with Exhibit A hereto in reliance upon Schedule 1.6, Schedule
8.12(a) and Schedule 8.13 as delivered by Seller pursuant to Section 7.1(a).
1.28 Purchase Price. The "Purchase Price" shall have the meaning as set forth
in Section 3.1.
1.29 Real Property Lease. "Real Property Lease" shall mean the real estate
lease relating to the Leased Real Property.
1.30 Real Property Purchase Price. "Real Property Purchase Price" shall mean
the fair market value of the Owned Real Property as determined in the manner
as set forth in Schedule 1.30.
1.31 Regulatory Approvals. "Regulatory Approvals" shall have the meaning as
set forth in Section 5.1(a) hereof.
1.32 Regulatory Approval Date. "Regulatory Approval Date" shall mean the date
all Regulatory Approvals necessary for the Seller and Purchaser to consummate
the transaction contemplated by this Agreement, disregarding any legally
required waiting period, have been obtained.
1.33 Restricted Period. "Restricted Period" shall have the meaning as set
forth in Section 3.7 hereof.
1.34 Safe Deposit Boxes. The term "Safe Deposit Boxes" shall mean all safe
deposit boxes owned or leased by the Seller as of the Closing Date located at
the Banking Offices, including the removable safe deposit boxes and safe
deposit stacks in the vaults at the Banking Offices, all right and benefit of
the Seller accrued as of the Closing Date under the rental agreements with
respect to the safe deposit boxes and all keys and combinations thereto
located at the Banking Offices.
1.35 Safe Deposit Business. "Safe Deposit Business" shall mean all right,
title, and interest in and to the safe deposit business conducted by Seller
at the Banking Offices, including but not limited to, the physical assets of
the Safe Deposit Boxes located in the vaults at the Banking Offices, all safe
deposit lease agreements with the lessees thereof, safe deposit box keys,
signature cards, combinations, agreements and records pertaining to the
operation of the safe deposit business and located at or related to the
Banking Offices.
1.36 Safe Deposit Business Purchase Price. The "Safe Deposit Business
Purchase Price" shall mean an amount equal to $1.00.
1.37 Title Commitment. The "Title Commitment" shall mean the title commitment
obtained by Seller with respect to the Chestnut Ridge Office and set forth in
Schedule 5.2(f).
1.38 Transferred Employees. "Transferred Employees" shall have the meaning as
set forth in Section 6.11 hereof.
1.39 Wesley Hills Banking Office. "Wesley Hills Banking Office" shall mean
Seller's banking office located at 455 Route 306, Wesley Hills, New York.
ARTICLE 2
TRANSFER OF ASSETS; ASSUMPTION OF LIABILITIES
2.1 Transfer of Assets. Subject to the terms and conditions of this
Agreement, on the Closing Date, Seller agrees to transfer, convey, assign and
deliver to Purchaser and Purchaser agrees to purchase and acquire all of
Seller's right, title and interest in and to the Assets, free and clear of
all liens and encumbrances, except for those liens and encumbrances set forth
on Schedule 2.1 and, in the case of the Owned Real Property, the Permitted
Exceptions.
2.2 Assumption of Liabilities. Subject to the terms and conditions of this
Agreement, from and after the Closing Date, Purchaser agrees to assume all of
Seller's obligations with respect to the Assumed Contracts, the Owned Real
Property, the Real Property Lease, the Deposit Liabilities and the Safe
Deposit Business. Purchaser will assume and agree to pay, perform and
discharge the Deposit Liabilities to customers of Seller as stated in
Seller's applicable account records and rules and regulations attributed on
the records of Seller to the Banking Offices, provided, however, that nothing
herein shall restrict Purchaser's right after the Closing Date to make such
changes in rules and regulations as permitted by law.
2.3 Books and Records.
(a) The Seller shall transfer and deliver to the Purchaser on the Closing
Date, all of the books, records and signature cards of the Seller located at
the Banking Offices and all other records of the Seller located at the
Banking Offices and pertaining to the Assets and the Liabilities. The records
to be transferred hereunder shall include but are not limited to, signature
cards, deposit agreements, credit agreements, notes and other deposit or loan
records.
(b) From and after the Closing, Purchaser shall have the right to possession
of any and all files, books of account and records if exclusively relating to
and normally on the premises of the Banking Offices. From and after the
Closing Date, all books and records relating to the Banking Offices held by
either party shall be open for inspection for reasonable purposes by the
other party and its authorized agents, representatives, and regulators during
regular business hours and with no disruption of branch operations, and the
party with the right of inspection may, at its own expense, make copies or
excerpts from such files, books of account and records as it deems desirable.
All books and records relating to the Banking Offices shall be maintained for
a period of at least seven (7) years from the Closing Date (unless the
parties agree upon a shorter period).
2.4 IRA and Keogh Accounts.
(a) Subject to the provisions below, included in the Deposit Liabilities are
deposits of customers of the Banking Offices in IRA or Keogh accounts
pursuant to which Seller is currently acting as "trustee." For purposes of
this Agreement, the word "Keogh" means the Seller Sponsored Prototype Defined
Contribution Plan & Trust.
(b) Within such period prior to the Closing Date as is required by
applicable law or regulation, Seller shall, at its sole cost and expense,
notify the depositors who maintain IRA accounts of Seller's intent to resign
as trustee as of the Closing Date and to appoint Purchaser as successor
trustee and the discharge and release of Seller from all liabilities as
trustee from and after the effective time of its resignation, which
notification shall be accompanied by all appropriate forms necessary to
effect such replacement and release.
(c) Within such period prior to the Closing Date as is required by
applicable law or regulation, Seller shall, at its sole cost and expense,
notify the depositors who maintain Keogh accounts of Seller's intent to
resign as trustee as of the Closing Date and of Seller's recommendation that
Purchaser be appointed as the successor trustee. Such notice shall be
accompanied by all necessary forms for the discharge of Seller as trustee and
the appointment of Purchaser as successor trustee, including the plan
agreement offered by Purchaser. If such plan agreement appointing Purchaser
is not executed by the depositor and received by Seller no later than the
business day prior to the Closing Date, then the relevant Keogh account shall
be an Excluded Deposit.
2.5 Sale of Safe Deposit Business. On the Closing Date, and as part of the
transactions contemplated hereby, the Seller shall sell and the Purchaser
shall purchase from the Seller, the Safe Deposit Business of the Seller
located at the Banking Offices; provided, that the Seller and Purchaser shall
give all notices and take all actions required by Section 337 of the New York
Banking Law and by the applicable rules and regulations of the Banking
Department in connection with such transfer and sale of the Safe Deposit
Business.
ARTICLE 3
TERMS OF PURCHASE AND ASSUMPTION
3.1 Purchase Price. The purchase price (the "Purchase Price") to be paid by
Purchaser for the Assets and Deposit Liabilities, which shall be offset at
the Closing against the amount owed to Purchaser by Seller pursuant to the
terms of Section 3.2 as consideration for the assumption by Purchaser of the
Liabilities, will be an amount equal to the sum of the following:
(i) an amount equal to $133,270.00 on account of the Personal Property as
listed on Schedule 1.25;
(ii) Net book value as of the Closing Date of the Leasehold Improvements;
(iii) the Real Property Purchase Price;
(iv) the Cash on Hand at the Banking Offices as of the close of business on
the Closing Date;
(v) the Safe Deposit Business Purchase Price;
(vi) the aggregate principal amount of the Account Loans, plus accrued and
unpaid interest thereon, as of the close of business on the Closing Date; and
(vii) the Deposit Premium.
3.2 Deposit Payment Amount. As consideration for the assumption of the
Liabilities by the Purchaser, the Seller shall pay to the Purchaser an amount
equal to one hundred percent (100%) of the Deposit Liabilities as of the
close of business on the Closing Date (the "Deposit Payment Amount"). The
Seller shall pay or credit to the appropriate customer account all interest
accrued on the Deposit Liabilities as of the close of business on the Closing
Date.
3.3 Estimated Payment Amount. On the Closing Date the Seller shall deliver
to the Purchaser by wire transfer in immediately available funds, and to such
account as may be specified by the Purchaser, an amount equal to the
Estimated Payment Amount as estimated in accordance with Section 7.1.
3.4 Allocation. Seller and Purchaser acknowledge that the formulation of the
Purchase Price in Section 3.1 and the Deposit Payment Amount in Section 3.2
and other amounts payable under this Agreement do not reflect the intended
allocation of the Purchase Price as to any of the particular assets or rights
acquired under this Agreement and related agreements. Since that allocation
cannot be finally determined as of the date of this Agreement, Purchaser and
Seller agree that the allocation of amounts paid under this Agreement shall
be determined as soon as practicable after the Closing Date and Seller and
Purchaser shall enter into an agreement (the "Allocation Agreement") as soon
as practicable after the Closing Date concerning the allocation of the
Purchase Price among the Assets in accordance with Section 1060 of the
Internal Revenue Code of 1986, as amended, and the regulations promulgated
thereunder (the "Code").
Seller and Purchaser shall file all applicable tax returns and other
documents in accordance with the Allocation Agreement and will not adopt or
otherwise assert tax positions inconsistent therewith (unless required to do
so under applicable law). Purchaser shall deliver to Seller a completed
Internal Revenue Service Form 8594 as soon as practicable following the
Closing Date but in any event not later than 60 days prior to the due date,
including extension, for filing the federal income tax return for the year of
the sale. The parties shall file such Form 8594 with their respective tax
returns for the year in which the Closing occurs. The obligations of the
parties pursuant to Section 3.4 shall survive the Closing.
3.5 Apportionment.
(a) Except as otherwise specifically provided in this Agreement, it is
acknowledged that Seller shall operate for its own account the Banking
Offices through the Closing Date and that Purchaser shall operate for its own
account the Banking Offices after the Closing Date. Accordingly, except as
otherwise specifically provided in this Agreement, items of expense allocable
to the Assets and Liabilities shall be apportioned as of midnight on the
Closing Date, whether or not such adjustment would normally be made as of
such time.
(b) The items of expense to be apportioned between the parties as of midnight
on the Closing Date shall include, but not necessarily be limited to:
(i) water charges, sewer and vault charges, if any, on the basis of the
fiscal period for which assessed, except that if there is a water meter on
the Owned Real Property or Leased Real Property, apportionment at the Closing
shall be based on the last available reading, subject to adjustment after the
Closing when the next reading is available;
(ii) the value of any heating fuel owned by Seller and stored on the Owned
Real Property or Leased Real Property, at the price then charged by the
Seller's supplier, including any taxes thereon;
(iii) charges under the Assumed Contracts;
(iv) premiums on existing transferable insurance policies, if any;
(v) rents and other charges on the Leased Real Property; and
(vi) real estate taxes and other similar taxes or assessments levied,
assessed or imposed on the Owned Real Property and, to the extent such taxes
are the responsibility of the tenant, the Leased Real Property. If the
Closing shall occur before a new tax rate is fixed, the apportionment of
taxes at the Closing shall be upon the basis of the old tax rate for the
preceding period applied to the latest assessed valuation. Promptly after the
new tax rate is fixed, the apportionment of taxes shall be recomputed. Any
discrepancy resulting from such recomputation and any errors or omissions in
computing apportionments at Closing shall be promptly corrected and this
obligation shall survive the Closing.
(c) On the Closing Date, a settlement or settlements of all such apportioned
items shall be made by a form of payment reasonably acceptable to the party
entitled to receive such payment. For purposes of this Section 3.5, the
Closing Date shall be a date of expense to the Seller. Any adjustments to any
apportioned items shall be made in the manner provided for adjustment of the
Final Payment Amount in Section 13.1.
3.6 Taxes.
(a) Except as otherwise provided in this Agreement, all sales, transfer, use
and similar taxes which are payable or arise as a result of this Agreement or
the consummation of the transactions contemplated by this Agreement shall be
paid by the Purchaser.
(b) All real estates taxes, or other similar taxes or assessments levied,
assessed or imposed against the Owned Real Property or Leased Real Property,
shall be apportioned as of midnight on the Closing Date as provided in
Section 3.5 so that Seller shall be responsible for all such taxes for the
time period up to and including the Closing Date and Purchaser shall be
responsible for all such taxes for the time period after the Closing Date.
(c) The New York State Real Property Transfer Gains Tax, if any, in
connection with the transfer of the Leased Real Property and Owned Real
Property to the Purchaser at the Closing will be paid by the Seller. The
Purchaser shall promptly respond to the Seller's written request for form
TP-581 New York State Real Property Transfer Gains Tax Transferee
Questionnaire.
(d) The New York State Real Estate Transfer Tax, if any, in connection with
the transfer of the Leased Real Property and Owned Real Property to the
Purchaser at the Closing will be paid by the Seller.
(e) The Purchaser shall pay all recording fees for any documents of
transfer.
(f) For Federal income tax reporting purposes, the Seller will report all
interest accrued and paid with respect to all Deposit Liabilities through the
Closing Date. The Purchaser will report all interest accrued and paid with
respect to all Deposit Liabilities after the Closing Date.
(g) Except as otherwise provided in this Agreement, the Purchaser shall, as
of the Closing Date, assume all applicable tax withholding requirements which
arise from the Closing Date forward relating to the Deposit Liabilities under
the Internal Revenue Code and any other applicable laws and regulations.
(h) The party responsible for the payment of taxes pursuant to this Agreement
shall indemnify and hold harmless the other party from and against any such
taxes due, including those arising upon subsequent audit by a taxing
authority, including interest and penalties.
(i) The obligations of the parties pursuant to this Section 3.6 shall
survive the Closing.
3.7 Non-Solicitation of Deposits; Covenant Not-to-Compete.
(a) For a period of three years following the Closing Date (the "Restricted
Period"), Seller will not directly or through any agent solicit business from
any persons who are customers or depositors of Seller at the Banking Offices
as of the Closing Date and become customers of Purchaser thereafter, except
as may occur in connection with advertising or solicitations to the public
generally or as may occur as a result of any existing lending or deposit or
other relationship now or hereafter domiciled at or allocated to any of
Seller's offices other than the Banking Offices. Seller shall not be required
to purge any names from any list purchased from any source to be used for
solicitation purposes. Nothing in this Section 3.7 shall prevent Seller from
publishing or forwarding to all such depositors at Seller's expense such
notices or communications as may be required by law, by regulation or any
regulatory authority.
(b) Except as specifically provided herein, after the Execution Date and
during the Restricted Period, Seller will not open a branch de novo or by
acquisition or acquire or open an off-site automated teller facility
(including in the current location of the Banking Offices) within Rockland
County for the primary purpose of conducting retail banking business (a
facility where branch banking activity takes place) except as may be acquired
or otherwise occur as a result of the direct or indirect purchase of all or
substantially all of the assets, the assumption of all or substantially all
of the liabilities, or a merger with or an acquisition, of another financial
institution by Seller, Seller's parent company or any affiliate of Seller
(provided, however, that the institution acquired shall not have had its
primary presence in Rockland County).
(c) Nothing in this Section shall be deemed to prohibit Seller from
participation in the NYCE, Cirrus or any other shared electronic funds
transfer network of which Seller is not the sole proprietor.
3.8 Trademarks, etc. Nothing herein shall be construed to confer upon
Purchaser any right to use Seller's name, trademarks, servicemarks or logos.
To the extent not previously removed by Seller, Purchaser shall at its
expense remove Seller's name and logo from all Banking Offices promptly after
Closing. From and after Closing, Purchaser shall at its expense as soon as
reasonably practicable change the name on all documents and supplies to
Purchaser's name.
ARTICLE 4
PLACE OF CLOSING
The Closing of the purchase and sale of the Banking Offices and other Assets
(the "Closing") described in this Agreement shall take place at the offices
of Seller on the Closing Date at 10:00 A.M., unless otherwise agreed to by
the parties.
ARTICLE 5
CONDITIONS PRECEDENT
5.1 Conditions Precedent to the Obligations of Both Parties. The obligations
of each of the parties to this Agreement are subject to fulfillment at or
prior to the Closing Date of each of the following conditions, but compliance
with or occurrence of any one or more of such conditions precedent (other
than the conditions set forth in Section 5.1(a)) may be waived by the parties
in writing.
(a) Regulatory Approvals. Approvals in writing of all relevant regulatory
agencies shall have been obtained by Purchaser, and approvals in writing of
all relevant regulatory agencies, where applicable, shall have been obtained
by Seller. All necessary conditions, including any additional governmental
approvals, permissions or consents, if any, including the giving of all
legally required notices and the expiration of all legally required waiting
or protest periods, of or relating to licenses, approvals and consents shall
have been met (the "Regulatory Approvals").
(b) Litigation. There shall be no pending or threatened claim, action,
litigation or proceeding, judicial or administrative, or governmental action
against the Seller or the Purchaser or the Assets or the Liabilities for the
purpose of enjoining or preventing the consummation of the transactions
contemplated by this Agreement or otherwise claiming that the Agreement or
the consummation of the transactions contemplated hereby is illegal.
(c) Data Processing Conversion. The transfer of information concerning the
Deposit Liabilities into Purchaser's own data processing system shall be
complete.
5.2 Conditions Precedent to the Obligations of Purchaser. The obligations of
Purchaser under this Agreement are further subject to the satisfaction of
each of the further conditions precedent set forth in this Section 5.2, any
one or more of which may be waived by Purchaser.
(a) Obligations of Seller. Each of the obligations of Seller required to be
performed by it at or prior to the Closing pursuant to the terms of this
Agreement shall have been duly performed and complied with in all material
respects and the representations and warranties of Seller contained in this
Agreement shall be true and correct in all material respects as of the
Execution Date and continue true and correct as of the Closing Date as though
made at and as of the Closing Date, except in the case of a representation
and warranty which references a specific date, which representation and
warranty shall be true and correct as of such date.
(b) Opinion of Counsel. Purchaser shall have received an opinion, dated the
Closing Date, from Cullen and Dykman, counsel to Seller, substantially in the
form of the Exhibit F referred to in Section 7.2(e).
(c) Certificates. Purchaser shall have received a certificate from Seller in
the form of Exhibit G described in Section 7.2(g), and Seller shall have
delivered to Purchaser all of the consents, documents, instruments and other
agreements required by Section 7.2.
(d) Consents. On or prior to Closing, Seller shall have obtained and
delivered all consents necessary to authorize the transfer and assignment to
Purchaser of, or the substitution of Purchaser for Seller under, the Real
Property Lease. This condition is subject to adjustment as provided in
Section 6.6 hereof.
(e) Real Property. On or prior to Closing, Seller shall have conveyed to
Purchaser all of Seller's right, title and interest to the Owned Real
Property in accordance with and subject to all of the terms and conditions,
as applicable, of this Agreement.
(f) Title Insurance. On or prior to Closing, Purchaser shall have obtained a
fee title insurance policy for the Owned Real Property, insuring that
Purchaser is the owner of the Owned Real Property and showing no liens,
encumbrances, or other exceptions to title, except (i) current taxes not
delinquent, (ii) any state of facts a current and accurate survey or
inspection may show, provided same does not render title unmarketable; (iii)
zoning laws, covenants, restrictions, reservations, utility agreements,
rights of way and easements of record affecting the Owned Real Property, if
still in effect, provided same do not prohibit the continued use and
maintenance of the present structures on the Owned Real Property; (iv) minor
variations between record lines, fences, bushes and hedges, if any; (v) any
easement or right of way created in favor of any public utility company for
electricity, steam, gas, telephone, water or other service, and the right to
install, use, maintain, repair and replace wires, cables, terminal boxes,
lines, service connections, poles, mains, facilities, and the like upon,
under and across the Owned Real Property; (vi) any lien for any unpaid
assessment payable in installments, except Seller will pay all such
assessments due and payable prior to the Closing Date and Purchaser will be
obligated to pay all installments due on or subsequent to Closing (however,
the then current installment shall be adjusted at the Closing); (vii) the
lien of any unpaid franchise or corporation tax or estate tax with respect to
any corporation or individual in the chain of title, provided the title
insurance company insuring the Purchaser's title to the Property shall insure
against the collection thereof out of the Property; (viii) standard printed
exceptions contained in the form of title insurance policy then issued by the
title insurance company insuring the Purchaser's title to the Property; (ix)
imperfections of title as are not so substantial as to materially impair the
value or interfere with the continued use of any portion of the Owned Real
Property for the purposes customarily used by Seller; and (x) matters listed
in the Title Commitment set forth in Schedule 5.2(f) (matters listed in (i)
through (x) are collectively referred to herein as "Permitted Exceptions").
The cost of obtaining the policy shall be the responsibility of Purchaser. In
the event Seller is unable to remove any exception which is not one of the
Permitted Exceptions and which is objectionable to Purchaser (such occurrence
being herein referred to as a "Title Policy Problem"), then this Closing
condition shall be subject to modification as provided in Section 6.15.
(g) Environmental Investigations. If Purchaser has elected to conduct the
investigations described in Section 6.9 either (i) the reports described
therein shall have been reasonably satisfactory to Purchaser, or (ii) Seller
shall have taken such action as is provided in Section 6.9; provided,
however, that this Closing condition shall be subject to adjustment as
provided in Section 6.9.
(h) Condition of Assets and Liabilities. Subject to the provisions set forth
in Section 6.15, the Banking Offices shall be in substantially the same
condition as of the Execution Date, reasonable wear and tear from the
Execution Date excepted.
(i) Sufficiency of Instruments of Transfer. The form and substance of all
instruments of transfer and other documents to be delivered to the Purchaser
hereunder shall have been approved by the Purchaser and its counsel, and such
approval shall not be unreasonably withheld.
5.3 Conditions Precedent to the Obligations of Seller. The obligations of
Seller under this Agreement are further subject to the satisfaction of each
of the further conditions precedent set forth in this Section 5.3, any one or
more of which may be waived by Seller.
(a) Obligations of Purchaser. Each of the obligations of Purchaser required
to be performed by it at or prior to the Closing pursuant to the terms of
this Agreement shall have been duly performed and complied with in all
material respects and the representations and warranties of Purchaser
contained in this Agreement shall be true and correct in all material
respects as of the Execution Date and continue true and correct as of the
Closing Date as though made at and as of the Closing Date.
(b) Opinion of Counsel. Seller shall have received an opinion, dated the
Closing Date, from McCarthy, Fingar, Donovan, Drazen & Smith, counsel to
Purchaser, substantially in the form set forth in Exhibit I referred to in
Section 7.3(b).
(c) Certificate. Seller shall have received a certificate from Purchaser
substantially in the form of Exhibit J described in Section 7.3(d).
(d) Sufficiency of Instruments of Transfer. The form and substance of all
instruments of transfer and other documents to be delivered to the Seller
hereunder shall have been approved by the Seller and its counsel, and such
approval shall not be unreasonably withheld.
ARTICLE 6
COVENANTS AND AGREEMENTS OF THE PARTIES
6.1 Review; Confidentiality. Seller shall permit Purchaser and its
authorized representatives, accountants, independent appraisers and counsel
(collectively, "Representatives") to have access during regular business
hours, upon reasonable prior notice and in such manner as will not
unreasonably interfere with the conduct of Seller's business, to all of the
properties and books and records of the Banking Offices, as Purchaser may
from time to time reasonably request. Seller will permit Purchaser and its
Representatives to make copies of such books, records, and other documents
at Purchaser's expense. Except as otherwise provided in this Agreement,
Purchaser shall maintain the confidentiality of all information obtained
pursuant to this Section 6.1, which obligation to maintain confidentiality
shall survive any termination of this Agreement, and shall have no right to
the information until the Closing Date. Purchaser and Seller shall provide
each other promptly with information as to any significant developments in
the performance of this Agreement or in any document or agreement delivered
in connection with this Agreement and shall promptly notify the other if
either discovers that any of its representations and warranties contained in
this Agreement or in any document delivered in connection with this Agreement
was or were not true and correct in all material respects or becomes or
became untrue or incorrect in any material respect.
6.2 Conduct of Business Pending Closing. From and after the Execution Date
and through the Closing Date, except as may be required by a regulatory
authority, Seller shall not, without prior written consent from Purchaser:
(a) Cause or permit the Banking Offices to engage or participate in any
material transaction or incur or sustain any material obligation except in
the ordinary course of business;
(b) Cause or permit the Banking Offices to transfer to or from Seller's other
operations any material amount of Assets or Liabilities, except for (i)
equipment and supplies, if any, which have a unique function in Seller's
business and ordinarily would not be useful to Purchaser (such as, for
example, computer software and signs); (ii) cash and other customary
inter-bank transfers made in the ordinary course of business in accordance
with Seller's normal banking practices; (iii) such Assets or Liabilities as
are not being transferred to or assumed by Purchaser under this Agreement;
and (iv) the Seller's proprietary FBA Finesse Software which shall not be
transferred to Purchaser;
(c) Cause or permit the Banking Offices to transfer to or from Seller's other
operations any deposits of the type included in the Deposit Liabilities
(except pursuant to an unsolicited customer request where it would be the
customary banking practice of Seller to honor such request);
(d) Transfer, assign, encumber, or otherwise dispose of or enter into any
contract, agreement, or understanding to transfer, assign, encumber, or
otherwise dispose of any Assets except in the ordinary course of business;
(e) Make any material capital investment in any Asset on behalf of the
Banking Offices except in the ordinary course of business;
(f) Enter into or amend any material continuing contract relating to the
Banking Offices, which would be included among the Liabilities, for the
purchase or lease of materials, supplies, or equipment which cannot be
terminated on not more than thirty (30) days' notice;
(g) Undertake any actions which materially increase the personnel at the
Banking Offices;
(h) Enter into any leases, subleases, licenses or similar agreements
permitting any affiliated or non-affiliated parties to lease, use or occupy
space in the Banking Offices;
(i) Transfer employees to or from the Banking Offices and Seller's other
operations, except:
(i) Transfers which were scheduled by Seller in the ordinary course of
Seller's business prior to the Execution Date and which are set forth in
Schedule 6.2(i);
(ii) Transfers of employees employed at the Banking Offices whose employment
does not relate to the activities to be assumed by Purchaser;
(iii) Temporary transfers of Seller's employees to fill positions in the
Banking Offices (it being understood that Seller shall use reasonable efforts
to notify Purchaser of any such temporary transfers, which transfers, if not
sooner terminated shall terminate at the Closing Date); and
(iv) Other transfers permitted or contemplated by this Agreement.
(j) Increase or agree to increase the salary, remuneration or compensation of
employees employed at the Banking Offices other than in accordance with
Seller's customary policies and/or bank-wide changes, or pay or agree to pay
any uncommitted bonus to any such employees other than regular bonuses
granted based on historical practice or such bonuses as Seller deems is
necessary or appropriate to maintain the employment of the managers or other
key personnel at the Banking Offices;
(k) Fail to maintain in full force and effect all of the insurance policies
currently in effect; or
(l) Offer at the Banking Offices interest rates on deposits which are
different than the interest rates being offered by Seller on comparable
deposits at its other banking offices.
6.3 Regulatory Approvals.
(a) Purchaser shall use its best efforts to obtain as promptly as possible
all Regulatory Approvals to be obtained by Purchaser and to insure that all
appropriate legal and other requirements are met and that all other
conditions to the consummation of the purchase are satisfied. Purchaser shall
submit all applications for all Regulatory Approvals to the applicable
authorities by January 22, 1996. Purchaser shall provide all information
required to be submitted by Purchaser in connection with such Regulatory
Approvals or otherwise.
(b) Seller shall use best efforts to assist Purchaser in obtaining Regulatory
Approvals to be obtained by Purchaser and to meet all appropriate legal and
other requirements and to satisfy all other conditions to the consummation of
the purchase. Seller shall provide Purchaser or the appropriate regulatory
authorities all information reasonably required to be submitted by Seller in
connection with such Regulatory Approvals or otherwise, and shall not take
any action that would adversely affect Purchaser's ability to obtain all
Regulatory Approvals.
(c) Seller shall use its best efforts to obtain as promptly as possible all
Regulatory Approvals required to be obtained by Seller.
(d) Prior to submission to regulatory authorities, each party agrees to use
reasonable efforts to allow the other party to review and comment upon any
application or other materials proposed to be submitted in order to obtain
the Regulatory Approvals for the transactions contemplated by this Agreement.
6.4 Further Assurances by Seller. From and after the Closing Date, Seller
shall execute, acknowledge, and deliver such further assurances as may be
necessary to effectively vest in Purchaser all of Seller's right, title and
interest in and to the Assets transferred pursuant to this Agreement. From
the Execution Date through Closing, Seller shall provide Purchaser reasonable
assistance as requested by Purchaser in order to effect as of Closing the
orderly transfer of the Banking Offices, the other Assets and the
Liabilities.
6.5 Further Assurances by Purchaser. From and after the Execution Date,
Purchaser shall (a) give such further assurances to Seller and shall execute,
acknowledge, and deliver all such acknowledgments and other instruments and
take such further action as may be necessary and appropriate to effectively
relieve and discharge Seller from any obligations remaining under the
Liabilities assumed by Purchaser, and (b) use reasonable efforts to assist
Seller in the orderly transition of the operations of the Banking Offices
being acquired by Purchaser. The obligations of Purchaser herein shall
survive Closing.
6.6 Consents. Seller shall use reasonable efforts to obtain and deliver to
Purchaser on or before the Closing Date (i) the Landlord's Consent to
Assignment and Estoppel in the form of Exhibit C; and (ii) all other material
consents necessary to authorize the transfer and assignment to Purchaser of,
or the substitution of Purchaser for Seller under, Assumed Contracts.
Purchaser agrees to use reasonable efforts to assist Seller in obtaining the
consents. Seller shall not be required to spend any money or commence any
legal or agency proceeding in order to obtain any of the consents.
Notwithstanding the above, the parties acknowledge and agree that if under
this Section 6.6, (y) it is impractical in the opinion of the Seller and its
counsel to transfer and assign all of its right, title and interest in and to
the Real Property Lease to Purchaser or (z) the Landlord's Consent to
Assignment and Estoppel for the Real Property Lease has not been executed by
Landlord, Seller shall give written notice thereof to Purchaser. Within five
(5) business days of Seller's notice, Purchaser shall give Seller written
notice of Purchaser's election to either (i) proceed to complete the
transaction excluding the Leased Real Property but including the Deposit
Liabilities and Safe Deposit Business at the Leased Real Property (with
adjustment to the Purchase Price only to reflect the exclusion of the
Personal Property, Leasehold Improvements and the apportionments pursuant to
Section 3.5 related to the Leased Real Property) or (ii) proceed to complete
the transaction including the Leased Real Property (with no adjustment to the
Purchase Price and Purchaser's waiver of all of Seller's obligations and
responsibilities hereunder related to obtaining the consent of the landlord
to the assignment of the Leased Real Property to Purchaser and the
enforceability of an assignment of the Real Property Lease to Purchaser
without such consent). If Purchaser elects hereunder to exclude the Leased
Real Property from the transaction, then within five (5) business days of
Purchaser's notice, Seller shall have the option to give Purchaser written
notice of Seller's election to terminate the Agreement.
To the extent Seller is not completely released from liability by the lessor
under the Real Property Lease, Purchaser shall indemnify and hold Seller
harmless from and against any and all claims, losses, or costs (including
attorneys fees and costs) relating to or arising out of breaches of
obligations or defaults under or disputes with regard to the Real Property
Lease arising out of any state of facts arising, or act or omission of
Purchaser occurring, from and after the Closing Date and this obligation
shall survive the Closing.
6.7 Indemnification by Seller. Subject to the provisions of Article 10
hereof, Seller shall for a period of two years from the Closing Date
indemnify Purchaser against and hold Purchaser harmless from any and all
losses, costs, damages, and expenses in respect of suits, proceedings,
demands, judgments, expenses, losses and costs, including, without
limitation, costs and reasonable expenses of counsel, which Purchaser may
suffer or incur by reason of (a) the material breach of any material
representation, warranty, covenant or agreement by Seller contained in this
Agreement or in any other document or agreement delivered with this Agreement
or to be delivered at Closing; and (b) any state of facts existing, or act or
omission of Seller occurring, prior to the Closing Date with respect to any
of the Assets or Liabilities, provided that in no event shall Seller have any
responsibility or obligation hereunder with respect to environmental matters
or Hazardous Substances related to the Banking Offices.
6.8 Indemnification by Purchaser. Subject to the provisions of Article 10
hereof, Purchaser shall for a period of two years from the Closing Date
indemnify Seller against and hold it harmless from any and all losses, costs,
damages, and expenses in respect of suits, proceedings, demands, judgments,
expenses, and costs, including, without limitation, costs and reasonable
expenses of counsel, which Seller may suffer or incur by reason of (a) the
material breach of any material representation, warranty, covenant or
agreement of Purchaser contained herein or in any other document or agreement
to be delivered at Closing; (b) any state of facts arising, or act or
omission by Purchaser occurring, with regard to the Assets or Liabilities
from and after the Closing Date; and (c) the operations by Purchaser of the
Banking Offices after the Closing Date (including, without limitation, any
Bank Secrecy Act violations occurring after Closing, any failure by Purchaser
to correctly file or pay tax or tax information with respect to the Assets or
Liabilities after Closing, any act or omission by Purchaser in connection
with its acting as a trustee of IRA, Keogh or similar accounts at the Banking
Offices after Closing).
6.9 Hazardous Substances.
(a) Purchaser may elect at its expense to hire an outside consultant to
undertake to determine whether or not there are any Hazardous Substances in
the Banking Offices, provided that any such investigation shall be completed
within thirty (30) days from the Execution Date. In the event such
investigation reveals the presence of such Hazardous Substances which are
reasonably unacceptable to Purchaser, Purchaser shall give written notice to
Seller not later than forty (40) days from the Execution Date. Such written
notice shall describe the Hazardous Substances which are reasonably
unacceptable to Purchaser and include a copy of the outside consultant's
report. Within ten (10) business days of Purchaser's notice, Seller shall
give Purchaser written notice of Seller's election, exercised in Seller's
sole discretion, (i) to use reasonable efforts to eliminate or otherwise
remedy the Hazardous Substances or (ii) to not remedy the Hazardous
Substances.
(b) In the case of Hazardous Substances at the Owned Real Property, the
following shall occur:
(i) if Seller notified Purchaser of Seller's election to use reasonable
efforts to eliminate or otherwise remedy the Hazardous Substances and Seller
has not eliminated or otherwise remedied such Hazardous Substances by the
Closing Date, then Purchaser shall lease the Owned Real Property from Seller
pursuant to the terms of a net lease which shall have a term commencing as of
the Closing Date and expiring on the date which is two (2) years after notice
by Seller to Purchaser that Purchaser is either unable or elects to no longer
seek to eliminate or otherwise remedy such Hazardous Substances; or
(ii) if Seller notified Purchaser of Seller's election to not remedy the
Hazardous Substances, then Purchaser shall lease the Owned Real Property from
Seller pursuant to the terms of a net lease which shall have a term of two
(2) years from the Closing Date.
In the case of a lease pursuant to either (i) or (ii) above, the net lease
shall: (x) provide for tenant to absorb all costs of operation (including
taxes, insurance, maintenance and utilities), (y) contain commercially
reasonable terms and (z) provide for a fair market rent to be determined as
provided in Schedule 6.9(b) hereof for the net lease of the Owned Real
Property on the lease terms as provided herein.
(c) If during the term of the lease entered into between Seller and Purchaser
as provided in Subsection 6.9(b) hereof, Seller is able to remedy the
Hazardous Substances, Seller shall give written notice thereof to Purchaser
and Seller shall transfer and convey the Owned Real Property to Purchaser as
promptly as possible thereafter in accordance with and as provided by the
terms of this Agreement and at a price to be determined in accordance with
Schedule 1.30 hereof as of the date of Seller's written notice of remedy of
the Hazardous Substances.
(d) At any time following notice from Seller of its inability or election to
not remedy the Hazardous Substances and during the term of the lease entered
into between Seller and Purchaser as provided in Subsection 6.9(b) hereof,
Purchaser may by written notice to Seller elect to purchase the Owned Real
Property from Seller containing the Hazardous Substances. Seller shall
transfer and convey the Owned Real Property to Purchaser as promptly as
possible thereafter in accordance with and as provided by the terms of this
Agreement and at a price to be determined in accordance with Schedule 1.30
hereof as of the date of Purchaser's written notice of election to purchase
the Owned Real Property from Seller containing the Hazardous Substances,
provided that the price determined in accordance with Schedule 1.30 and to be
paid by Purchaser shall be reduced by an amount equal to the Hazardous
Substance Reduction determined in accordance with Schedule 6.9(d) hereof,
however, in no event shall the price be reduced as a result of the Hazardous
Substances Reduction to less than zero, and Purchaser shall waive any
responsibility or obligation of Seller with respect to the Hazardous
Substances.
(e) In the event Purchaser leases the Owned Real Property from Seller as
provided herein, the Purchase Price as of the Closing Date shall be adjusted
to exclude the Real Property Purchase Price and Purchaser shall waive any
responsibility or obligation of Seller with respect to the Hazardous
Substances. The obligations of Seller and Purchaser in Subsections 6.9(b),
6.9(c), 6.9(d), and 6.9(e) hereof shall survive the Closing.
(f) In the case of Hazardous Substances at the Leased Real Property, if
Seller chooses to not remedy the Hazardous Substances or is unable to remedy
the Hazardous Substances despite reasonable efforts to do so prior to the
Closing Date, within five (5) business days of (i) Seller's written notice of
election not to remedy the Hazardous Substances or (ii) Seller's inability to
remedy the Hazardous Substances prior to the Closing Date, Purchaser shall
give Seller written notice of Purchaser's election to either (x) proceed to
complete the transaction excluding the Leased Real Property but including the
Deposit Liabilities and Safe Deposit Business at such excluded Leased Real
Property (with adjustment to the Purchase Price only to reflect the exclusion
of the Personal Property and the apportionments pursuant to Section 3.5
related to such excluded Leased Real Property as well as the Leasehold
Improvements) or (y) proceed to complete the transaction including the Leased
Real Property (with waiver by Purchaser of any responsibility or obligation
of Seller with respect to such Hazardous Substances and with no adjustment to
the Purchase Price). If Purchaser elects hereunder to exclude the Leased Real
Property from the transaction, then within five (5) business days of
Purchaser's notice, Seller shall have the option to give Purchaser written
notice of Seller's election to terminate the Agreement.
6.10 Notification of Customers; Change of Name.
(a) After the Regulatory Approval Date but prior to the Closing and in
compliance with all applicable laws and regulations, Seller shall at its
expense prepare and deliver a letter, on Seller's stationery, in form and
substance reasonably satisfactory to Purchaser, informing customers and
depositors of the Banking Offices of the transfer of Assets and Liabilities
contemplated by this Agreement.
(b) After the Regulatory Approval Date but prior to the Closing and in
compliance with all applicable laws and regulations, Purchaser shall at its
expense prepare and deliver a letter, on Purchaser's stationery, in form and
substance reasonably satisfactory to Seller, informing customers and
depositors of the Banking Offices of the transfer of Assets and Liabilities
contemplated by this Agreement.
(c) After the Regulatory Approval Date but prior to Closing, Purchaser at its
expense shall mail to each account holder of a checking, money market
deposit, NOW account or Super-NOW account: (i) a letter prepared by
Purchaser, and reasonably satisfactory to Seller, notifying such depositor of
the transfer of his or her account to Purchaser, requesting that such account
holder cease writing checks or drafts against Seller's account immediately
following the Closing Date (or such other period as may be required by
applicable law or regulation) and (ii) check order forms, replacement checks
bearing Purchaser's transit and routing number and any other documents to be
signed by the account holder to establish a similar account with Purchaser.
(d) After all Regulatory Approvals have been obtained but prior to the
Closing, Purchaser at its expense shall mail to each account holder of a
Deposit Account which is transferred to Purchaser pursuant to this Agreement
and for which an ATM Card was issued to the account holder: (i) a letter
prepared by Purchaser, and reasonably satisfactory to Seller, notifying such
ATM card holder of the transfer of his or her account to Purchaser and
requesting that such ATM card holder cease use of his or her ATM card bearing
Seller's name as of the Closing Date; and (ii) a replacement ATM card issued
in the name of Purchaser and any other documents necessary for the ATM card
holder to use the replacement ATM card after the Closing Date. Purchaser
acknowledges that effective as of the close of business on the Closing Date,
Seller shall invalidate the use of the ATM cards issued to account holders of
Deposit Accounts transferred to Purchaser pursuant to this Agreement.
(e) Seller agrees to provide at its expense the necessary and appropriate
customer information to enable Purchaser to make the mailings described in
(b) and (d) above. Seller shall have the option to do such mailing prior to
Closing on Purchaser's behalf provided that the costs of the mailings shall
remain the liability of Purchaser.
(f) Seller and Purchaser shall mutually agree to their reasonable
satisfaction on the date or dates on which Seller or Purchaser, as is the
case, shall send the notices to customers and depositors of the Banking
offices pursuant to Subsections 6.10(a), 6.10(b), 6.10(c) or 6.10(d) hereof.
The "Customer Notification Date" shall be the earliest date on which either
Seller or Purchaser, as is the case, sends one or more of the notices to
customers and depositors of the Banking Offices pursuant to Subsections
6.10(a), 6.10(b), 6.10(c) or 6.10(d) hereof.
(g) After the Closing Date, Purchaser shall at its expense promptly change
the name on all documents and facilities relating to the Banking Offices to
Purchaser's name. On or prior to the Closing Date, Seller may remove signs
containing the name of Seller from locations inside or outside the Banking
Offices. The obligations of the parties herein shall survive the closing.
(h) Seller shall give all notices and take all appropriate actions, including
actions required by Section 337 of the New York Banking Law and by the
applicable rules and regulations of the Banking Department, in connection
with the transfer and sale of the Safe Deposit Business.
(i) The obligations of Seller and Purchaser in this Section 6.10 shall
survive the Closing.
6.11 Employees.
(a) Purchaser shall use all reasonable efforts to interview for employment
effective as of the Closing Date all employees employed at the Banking
Offices, including employees on leave of absence (the "Banking Office
Employees"), listed on Schedule 6.11 hereof. Banking Office Employees who
accept an offer of employment from Purchaser at the Banking Offices as of the
Closing Date shall be considered the "Transferred Employees".
(b) Purchaser shall use all reasonable efforts to hire as many of the Banking
Office Employees as possible. No later than sixty (60) days after the
Execution Date, Purchaser shall provide to Seller a list of the Banking
Office Employees it intends to employ following the Closing. Purchaser shall
treat all Transferred Employees as new hires of Purchaser but shall recognize
each Transferred Employee's original date of hire with Seller (or any other
previous employer provided that such date of hire was recognized by Seller)
for determining eligibility and vesting and give each Transferred Employee
credit for all purposes (other than benefit accrual) under each employee
benefit plan, policy, program or arrangement of Purchaser, (including without
limitation, vacation, severance and qualified pension and other retirement
plans).
(c) Purchaser shall provide retirement and welfare benefits (including
without limitation, medical, hospital, dental, accidental death and
dismemberment, life, disability, qualified pension and other retirement
plans, and other similar benefits) to Transferred Employees for claims
incurred and benefits earned on or after the Closing Date and subject to this
Section 6.11 and the generally applicable terms and conditions of Purchaser's
employee benefit plans, policies, programs and arrangements as amended from
time to time.
(d) Transferred Employees shall be eligible to participate in the medical,
hospital and dental plans of Purchaser effective as of the Closing Date and
Purchaser shall give credit to each Transferred Employee for deductibles and
copayments made by the Transferred Employee under Seller's medical and dental
plans during the period prior to the Closing Date to the extent applicable
under the terms of such plans to any period following the Closing Date and
any pre-existing conditions provisions of such plans shall be waived.
(e) All Transferred Employees subsequently severed from employment with
Purchaser (i) up to and including one (1) year after the Closing Date shall
be entitled to receive severance from Purchaser under the same terms and
conditions as would have been paid by Seller if said employee was severed
from employment by Seller on the day prior to the Closing Date, or (ii) more
than one (1) year after the Closing Date shall be entitled to receive
severance from Purchaser in accordance with Purchaser's severance policy.
(f) Banking Office Employees who are not Transferred Employees shall be
deemed terminated employees of Seller. Seller will cover said employees under
its severance policy, however, Purchaser shall reimburse Seller for any such
severance expense. To the extent such expense can be determined as of the
Closing Date, such expense shall be treated as an item of proration pursuant
to Section 3.5 hereof. Notwithstanding this Section 6.11(f), to the extent
Purchaser offers employment with comparable salary, benefits, job duties and
responsibilities and proximate location to a Banking Office Employee, which
offer the employee does not accept, then Purchaser shall not be obligated to
pay severance to that Banking Office Employee or to reimburse Seller for such
severance expense.
(g) Unless otherwise specified, Seller shall remain responsible for all
benefits of the Banking Office Employees up to the Closing Date as well as
for all payments with respect to any incentive or deferred compensation plan
earned or accrued up to the Closing Date.
(h) Purchaser shall not be responsible for any obligation of Seller existing
in any agreement between Seller and any Transferred Employee which confers
any special benefit, monetary or otherwise, on such Transferred Employee
which Purchaser is not otherwise obligated to provide to all Transferred
Employees hereunder.
(i) Purchaser shall be solely responsible for any activity in connection with
interviewing the Banking Office Employees. In addition to any other
obligation of Purchaser to indemnify Seller hereunder, Purchaser indemnifies
and holds Seller harmless from and against any claim or liability for
Purchaser's acts or omissions in connection with said interviews.
(j) This Agreement is not intended to create and does not create any
contractual or legal rights in or enforceable by any Banking Office Employee.
Purchaser agrees to obtain the prior approval of Seller before sending any
written communications to any Banking Office Employee concerning the subject
matter of this Section 6.11, which approval shall not be unreasonably
withheld. Seller agrees to use its reasonable efforts to incorporate
Purchaser's comments in any written communications to the Banking Office
Employees concerning the subject matter of this Section 6.11.
(k) The obligations of the parties in this Section 6.11 shall survive the
Closing.
6.12 Liaisons. Each party shall designate one person to act as a data
processing liaison from the Execution Date until all transactions and
adjustments contemplated by this Agreement have been completed.
6.13 Tax Information and Withholding. All tax information reporting and
filing requirements and all tax withholding requirements with respect to the
Assets, Transferred Employees and Liabilities shall be the responsibility of
Seller up to the Closing Date and the responsibility of Purchaser thereafter.
Seller shall be responsible for and provide Forms 1099, 1099R, 5498 and all
other applicable tax reporting for all amounts earned on the Deposit
Liabilities on or prior to the Closing Date and shall be responsible for all
backup withholding on the Deposit Liabilities on or prior to the Closing
Date. Purchaser shall be responsible for and provide such tax reporting for
all amounts earned on the Deposit Liabilities and backup withholding on the
Deposit Liabilities after the Closing Date. The obligations of this Section
6.13 shall survive the Closing.
6.14 Title Insurance. The costs of providing the title insurance policy
described in Section 5.2(f) shall be paid for by Purchaser. If Purchaser
elects to obtain a title insurance report different from the Title
Commitment, then Purchaser shall deliver, or cause to be delivered, a copy of
such title insurance report to Seller within three (3) business days of
receipt of the report by Purchaser or its attorneys.
6.15 Damage or Destruction; Condemnation; Title Insurance.
(a) Purchaser has inspected the Banking Offices to its satisfaction and
agrees to accept them "AS IS", subject to the provisions of Section 6.9 and
6.15. In the event that prior to Closing, with respect to either of the
Banking Offices, there occurs material physical damage to or destruction of
any such Banking Office or there is commenced or concluded a condemnation
proceeding against any of the Banking Offices which materially impairs the
value or interferes with the continued use of the Banking Office for the
purposes customarily used by Seller , Seller, in its sole discretion, and by
written notice to Purchaser, shall have the option to request and receive a
period of 180 days to use reasonable efforts to repair such damage or
destruction.
(b) If Seller has not repaired such damage or destruction to the reasonable
satisfaction of Purchaser within such 180 day period, or if any such
condemnation proceeding is commenced or concluded against any of the Banking
Offices, Purchaser as its sole remedy hereunder and notwithstanding Section
6.7 (Indemnification by Seller) or Section 14.11 (Specific Performance), or
any other provision hereof, shall give Seller written notice of Purchaser's
election to either (i) proceed to complete the transaction excluding the
Owned Real Property or Leased Real Property, as is the case, affected by the
damage or condemnation but including the Deposit Liabilities and Safe Deposit
Business at such excluded Leased Real Property or Owned Real Property, as is
the case, (with adjustment to the Purchase Price only to reflect the
exclusion of the Personal Property and the apportionments pursuant to Section
3.5 related to such excluded Leased Real Property or Owned Real Property, as
is the case, as well as the Leasehold Improvements in the case of exclusion
of the Leased Real Property or the Real Property Purchase Price in the case
of exclusion of the Owned Real Property), or (ii) proceed to complete the
transaction including such Leased Real Property or Owned Real Property, as is
the case (with waiver by Purchaser of any responsibility or obligation of
Seller hereunder with respect to such damage or condemnation and with no
adjustment to the Purchase Price, but proceeds of hazard insurance, if and to
the extent, payable to Seller and not applied by Seller shall be paid or
assigned to Purchaser). If Purchaser elects to exclude such Leased Real
Property or Owned Real Property, as is the case, from the transaction, then
within five (5) business days of Purchaser's notice, Seller shall have the
option to give Purchaser written notice of Seller's election to terminate the
Agreement.
(c) If there is a Title Policy Problem related to the Owned Real Property,
Seller shall give Purchaser written notice of Seller's election to use
reasonable efforts to cure such Title Policy Problem or to not remedy the
Title Policy Problem. Seller is not under any obligation to pay any money or
engage in any litigation or any proceeding in order to clear any Title Policy
Problem.
(d) In the case of a Title Policy Problem related to the Owned Real
Property, the following shall occur:
(i) if Seller notified Purchaser of Seller's election to use reasonable
efforts to cure the Title Policy Problem and Seller has not cured such Title
Policy Problem by the Closing Date, then Purchaser shall lease the Owned Real
Property from Seller pursuant to the terms of a net lease which shall have a
term commencing as of the Closing Date and expiring on the date which is two
(2) years after notice by Seller to Purchaser that Purchaser is either unable
or elects to no longer seek to cure such Title Policy Problem; or
(ii) if Seller notified Purchaser of Seller's election to not cure the Title
Policy Problem, then Purchaser shall lease the Owned Real Property from
Seller pursuant to the terms of a net lease which shall have a term of two
(2) years from the Closing Date.
In the case of a lease pursuant to either (i) or (ii) above, the net lease
shall: (x) provide for tenant to absorb all costs of operation (including
taxes, insurance, maintenance and utilities), (y) contain commercially
reasonable terms and (z) provide for a fair market rent to be determined as
provided in Schedule 6.9(b) hereof for the net lease of the Owned Real
Property on the lease terms as provided herein.
(e) If during the term of the lease entered into between Seller and Purchaser
as provided in Subsection 6.15(d), Seller is able to remedy the Title Policy
Problem, Seller shall give written notice thereof to Purchaser and Seller
shall transfer and convey the Owned Real Property to Purchaser as promptly as
possible thereafter in accordance with and as provided by the terms of this
Agreement and at a price to be determined in accordance with Schedule 1.30
hereof as of the date of Seller's written notice of remedy of the Title
Policy Problem.
(f) At any time following notice from Seller of its inability or election to
not cure the Title Policy Problem and during the term of the lease entered
into between Seller and Purchaser as provided herein, Purchaser may by
written notice to Seller elect to purchase the Owned Real Property from
Seller containing the Title Policy Problem. Seller shall transfer and convey
the Owned Real Property to Purchaser as promptly as possible thereafter in
accordance with and as provided by the terms of this Agreement and at a price
to be determined in accordance with Schedule 1.30 hereof as of the date of
Purchaser's written notice of election to purchase the Owned Real Property
from Seller containing the Title Policy Problem, provided that the price
determined in accordance with Schedule 1.30 and to be paid by Purchaser shall
be reduced by an amount equal to the Title Problem Reduction determined in
accordance with Schedule 6.15(f) hereof, however, in no event shall the price
be reduced as a result of the Title Policy Problem to an amount less than
zero, and Purchaser shall waive any responsibility or obligation of Seller
with respect to the Title Policy Problem.
(g) In the event Purchaser leases the Owned Real Property from Seller as
provided herein, the Purchase Price as of the Closing Date shall be adjusted
to exclude the Real Property Purchase Price and Purchaser shall waive any
responsibility or obligation of Seller with respect to the Title Policy
Problem. The obligations of Seller and Purchaser in Subsection 6.15(d),
6.15(e), 6.15(f) and 6.15(g) hereof shall survive the Closing.
6.16 Electronic Installations. Purchaser shall have a reasonable right to
enter the Banking Offices in the thirty (30) day period prior to the Closing
Date for the purpose of installing necessary wiring for Purchaser's security
system, teller terminals and data processing equipment to be utilized after
the Closing, subject to satisfaction by Purchaser of the following
conditions:
(i) reasonable advance notice of each such entry shall be given to Seller and
Seller shall have the right to have its employees or contractors present to
inspect the work being done;
(ii) all such work shall be done so as to not unreasonably interfere with
Seller's business in the Banking Offices and will be conducted after business
hours at the Banking Offices or as mutually agreed to by Seller and
Purchaser;
(iii) all such work will be done in compliance with all laws and applicable
government regulations and Purchaser will be responsible for the procurement,
at Purchaser's expense, of all required governmental or administrative
permits and approvals; and
(iv) all such work shall be performed in strict compliance with the
provisions of the Real Property Lease and if the consent of the Landlord
under the Real Property Lease is required pursuant to the provisions of the
Real Property Lease prior to the commencement of the work, Purchaser shall
have no right to commence such work until such consent of Landlord is duly
obtained. Seller will cooperate with Purchaser in obtaining such consent of
Landlord; provided that Seller shall not be required to expend any monies or
agree to any modification of the Real Property Lease in connection therewith
and the failure to obtain such consent shall not relieve Purchaser of any of
its obligations under this Agreement.
Purchaser shall indemnify Seller for any claim, damage or loss of any nature
or description which occurs as a result of any work performed by Purchaser in
the Banking Offices. This obligation of Purchaser shall survive the Closing.
Purchaser agrees that if for any reason the transactions contemplated
hereunder are not consummated, Purchaser will at its sole cost and expense
remove any installations it shall have made in the Banking Offices and shall
repair and restore the Banking Offices to their condition immediately prior
to such installations. This obligation of Purchaser shall survive any
termination of this Agreement.
6.17 Training and Orientation. During the period of time beginning on
the day after the Regulatory Approval Date and continuing to the Closing
Date, the Seller shall permit the Purchaser to provide training and
orientation to those officers and employees at the Banking Offices who are to
become employees of Purchaser and shall, subject to the provisions of this
Section 6.17, excuse such officers and employees from their duties for the
Seller at the Banking Offices for the purpose of such training and orientation
by the Purchaser under terms and conditions mutually agreeable to both
parties, and at such date and for such periods of time indicated on a
schedule to be mutually agreed upon by the Seller and the Purchaser.
Purchaser agrees that except with Seller's permission, all training shall be
done at the Banking Office in which the officer or employee is located and
the parties agree to cooperate with each other so as to schedule training at
times and in manners designed to eliminate any interference with the normal
functioning of the relevant Banking Office.
6.18 Data Processing. Prior to the Closing Date, Seller agrees to provide
assistance with data processing services as shall be reasonably necessary for
the conversion and transfer of information concerning the Deposit Liabilities
into Purchaser's own data processing system. Within thirty (30) days after
the Execution Date, Seller shall use reasonable efforts to provide Purchaser
with the description of all file layouts of the Deposit Accounts at the
Banking Offices, together with operational procedures necessary to define and
implement the transfer of the Deposit Liabilities to Purchaser. Seller and
Purchaser shall each designate an individual to serve as liaison concerning
operational matters. In connection with the conversion, Seller shall, if
requested by Purchaser, issue to each depositor of a Banking Office entitled
to receive a monthly account statement for that portion of the month in which
the Closing occurs for the period ending on the Closing Date. If Seller
issues such a partial month statement, Purchaser shall issue a statement for
the remainder of that month. To the extent that any such depositor would
incur a penalty solely as a result of the issuance of a partial monthly
statement, Seller and Purchaser each agree to waive any such penalty.
6.19 Assumed Contracts. On or before December 31, 1995, Purchaser shall give
written notice to Seller of those Assumed Contracts contained in Schedule 1.3
hereto which Purchaser elects to exclude from the transaction. Seller shall
use its reasonable efforts to obtain the consent of any third party required
to assign to Purchaser any of the remaining Assumed Contracts in Schedule
1.3. Purchaser may by written notice to Seller prior to the Closing Date
exclude from Schedule 1.3 any such remaining Assumed Contract that requires
the consent of a third party in order to be assigned to Purchaser, if, in
each case, consent has not been obtained prior to the Closing. An updated
Schedule 1.3 listing the Assumed Contracts remaining after any such
exclusions by Purchaser as provided herein shall be delivered by Seller to
Purchaser at Closing.
6.20 Real Property. Seller and Purchaser shall use their best efforts to
cooperate in completing the determination of the Real Property Purchase Price
in accordance with Section 1.30.
6.21 Transactions by Purchaser. From the Execution Date to the
Regulatory Approval Date, Purchaser agrees to not apply for approval from any
federal or state regulatory authority of any transaction involving a purchase
of assets, assumption of liabilities, merger or consolidation without the
prior written consent of Seller.
ARTICLE 7
CLOSING TRANSACTIONS
7.1 Estimate and Payment of Estimated Payment Amount.
(a) As of a date one to six days prior to Closing, Seller shall deliver to
Purchaser a Schedule 1.6 indicating the amount of Cash on Hand as of a date
no more than six business days prior the Closing Date, a Schedule 8.12(a)
showing the Deposit Liabilities as of the Customer Notification Date,
Schedule 8.12(b) dated as of a date no more than six business days prior to
the Closing Date and Schedule 8.13 showing the Account Loans as of a date no
more than six business days prior to the Closing Date..
(b) As of a date one to six days prior to Closing agreed on by Purchaser and
Seller, Purchaser and Seller shall compute the Estimated Payment Amount and
prepare the Preliminary Settlement Statement in the form of Exhibit A hereto,
using the Schedules delivered by Seller pursuant to Section 7.1(a) and other
relevant information available to the parties at the time of computation.
(c) At Closing, Seller shall deliver and pay to Purchaser by wire transfer in
immediately available funds, the Estimated Payment Amount as calculated in
the Preliminary Settlement Statement.
(d) The Final Payment Amount shall be calculated in the manner set forth in
Articles 3 and 13 and in accordance with Exhibit K. Post-Closing adjustments,
including any difference between the Final Payment Amount and the Estimated
Payment Amount, and transactions shall be handled as set forth in Article 13.
7.2 Documents, Instruments, Certificates, Etc. to be Delivered by Seller at
the Closing. At the Closing, Seller covenants and agrees to deliver to
Purchaser, except to the extent not required pursuant to Section 6.6, 6.9 or
6.15 hereof:
(a) Assignment of Lease. Except as provided in Section 6.6, 6.9 or 6.15
hereof, Assignment of Lease and Assumption Agreement substantially in the
form of Exhibit B hereto for the Real Property Lease and the Landlord's
Consent to Assignment and Estoppel in the form of Exhibit C;
(b) Assignment. Assignment and Assumption Agreement substantially in the form
of Exhibit D hereto for all Assumed Contracts, the Deposit Liabilities, the
Safe Deposit Business and the Account Loans;
(c) Bill of Sale. Bill of Sale and Assumption Agreement substantially in the
form of Exhibit E hereto for all other personal property Assets;
(d) Deed. Except to the extent such property is excluded from the transaction
as provided in Section 6.9 or Section 6.15 hereof, with respect to the Owned
Real Property a bargain and sale deed with covenant against grantor's acts;
(e) Opinion of Counsel. An opinion of Cullen and Dykman, counsel to Seller,
dated the Closing Date, substantially in the form attached hereto as
Exhibit F;
(f) Transfer Tax. Except to the extent any such property is excluded from the
transaction as provided in Section 6.6, Section 6.9 or Section 6.15 hereof,
New York State Real Property Transfer Tax and Real Property Gains Tax returns
for the Owned Real Property and the Leased Real Property;
(g) Certificate. Certificate signed by a duly authorized officer of Seller in
the form of Exhibit G hereto;
(h) Corporate Authority. Resolutions of Seller, certified by its Secretary or
Assistant Secretary, authorizing the execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby;
(i) Possession of Real Property. Except to the extent any such property is
excluded from the transaction as provided in Section 6.6, Section 6.9 or
Section 6.15 hereof, possession of the Leased Real Property and the Owned
Real Property as of the close of business on the Closing Date;
(j) Affidavit of the Seller. An affidavit to the Purchaser in form of Exhibit
H hereto;
(k) Records. All records described in Section 2.3 hereof or elsewhere in this
Agreement which are required to be delivered on the Closing Date;
(l) Good Standing Certificate. A certificate, dated as of a date reasonably
close to the Closing Date, by the Banking Department with respect to the good
standing of the Seller;
(m) Schedules. Schedule 8.12(a) dated as of the Customer Notification Date,
Schedule 1.6, Schedule 8.12(b) and Schedule 8.13 dated as of a date no more
than six business days prior to the Closing Date and Schedule 1.3, updated as
provided in Section 6.19 hereof;
(n) Retirement Account Transfer Agreement. A Retirement Account Transfer
Agreement in the form of Exhibit L hereto;
(o) Assumed Contracts. All Assumed Contracts which are being transferred
pursuant to this Agreement as provided in Section 6.19 hereof and assignment
thereof;
(p) Lease for Owned Real Property. To the extent provided in Section 6.9 or
Section 6.15 hereof, a lease for the Owned Real Property; and
(q) Other Documentation. Such other instruments and documents as counsel for
the Purchaser may reasonably determine to be necessary or desirable for
transferring, assigning and conveying to the Purchaser the Assets and
Liabilities to be assumed by the Purchaser pursuant to this Agreement.
7.3 Documents, Instruments, Certificates, Etc. to be Delivered by Purchaser
at the Closing. At the Closing, Purchaser covenants and agrees to deliver to
Seller, except to the extent not required pursuant to Section 6.6, 6.9 or
6.15 hereof:
(a) Documents. The documents and instruments referred to in 7.2(a), (b) and
(c);
(b) Opinion of Counsel. An opinion of McCarthy, Fingar, Donovan, Drazen &
Smith, counsel to Purchaser, dated the Closing Date, substantially in the
form attached hereto as Exhibit I;
(c) Transfer Tax. Except to the extent any such property is excluded from the
transaction as provided in Section 6.6, Section 6.9 or Section 6.15 hereof,
New York State Real Property Transfer Tax and Real Property Gains Tax returns
for the Owned Real Property and Leased Real Property;
(d) Certificate. Certificate signed by a duly authorized officer of Purchaser
in the form of Exhibit J hereto;
(e) Corporate Authority. Resolutions of Purchaser, certified by its Secretary
or Assistant Secretary, authorizing the execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby;
(f) Good Standing Certificate. A certificate dated as of a date reasonably
close to the Closing Date by the New York Banking Department with respect to
the good standing of the Purchaser;
(g) Retirement Account Transfer Agreement. A Retirement Account Transfer
Agreement in the form of Exhibit L hereto;
(h) Lease for Owned Real Property. To the extent provided in Section 6.9 or
6.15 hereof, a lease for the Owned Real Property; and
(i) Other Documentation. Such other documents, instruments and certificates
as Seller or its counsel may reasonably request.
7.4 Title Insurance Policy. Except to the extent not required pursuant to
Section 6.9 or 6.15 hereof, Purchaser shall receive at Closing the title
insurance policy described in and subject to the provisions of Section 5.2(f)
hereof.
ARTICLE 8
REPRESENTATIONS AND WARRANTIES OF SELLER
To induce Purchaser to enter into this Agreement, Seller hereby represents
and warrants to Purchaser as follows:
8.1 Corporate Organization. The Seller is duly organized, validly existing
and in good standing as a stock savings bank organized under the laws of the
State of New York; it has all requisite corporate power and authority, and
all necessary authorizations, approvals and orders of and from all
governmental regulatory officials and bodies, to own and operate its
properties and to conduct its business as a savings bank in the manner in
which it is presently being conducted.
8.2 Authorization. The Seller has all requisite corporate power and
authority and all necessary authorizations, approvals and orders of and from
all governmental regulatory officials and bodies, to execute and deliver this
Agreement and to carry out all of the transactions contemplated by this
Agreement other than those regulatory approvals which have been or will be
applied for. The execution and delivery of this Agreement, and each of the
documents and instruments contemplated hereby and the consummation of the
transactions contemplated herein have been duly authorized by all necessary
corporate action required to be taken on the part of the Seller; and, upon
execution and delivery, this Agreement and, subject to the receipt of any
required regulatory approvals, each of such other documents and instruments,
will be valid and binding obligations of the Seller, enforceable against the
Seller in accordance with their terms subject to bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance, fraudulent transfer and
other similar laws relating to or affecting the enforcement of creditors'
rights against debtors generally or against New York savings banks in general
and to general principles of equity, whether considered in a proceeding at
law or in equity.
8.3 Non-Contravention. The execution and delivery of this Agreement by Seller
does not, and subject to the receipt of the aforementioned approvals and
consents, the consummation of the transactions contemplated hereby by Seller
will not constitute (a) a breach or violation of or default under any law,
rule, or regulation, or any judgment, decree, order, governmental permit, or
license, or agreement, indenture, or instrument to which Purchaser is
subject; or (b) a breach or violation of or a default under the charter or
by-laws of Seller. The consummation of the transactions contemplated hereby
will not require any consent, waiver or approval under any such law, rule,
regulation, judgment, decree, order, governmental permit, or license or the
consent or approval of any other party to any such agreement, indenture, or
instrument other than those referred to in Section 5.1 and the required
approvals of the applicable regulatory authorities.
8.4 Litigation. There are no pending or, to the best of the Seller's
knowledge, threatened actions, suits or proceedings, before any court,
governmental agency, arbitrator or instrumentality which purport to affect
the legality, validity or enforceability of this Agreement or which could
materially adversely affect the Deposit Liabilities, the Assumed Contracts,
the Assets or the Liabilities or the ability of the Seller to perform its
obligations under this Agreement, or which in any manner question the
validity of this Agreement or which could serve as a basis for disapproval of
the transactions contemplated hereby by the FDIC, the New York State Banking
Department, or any other applicable regulatory authority.
8.5 Finders or Brokers. Except for Chemical Securities Inc., Seller has not
engaged or employed a broker or finder in connection with this Agreement or
the transactions contemplated hereunder.
8.6 Compliance with Applicable Law. Seller holds and has at all times held
all material licenses, certificates, franchises, permits and other
governmental authorizations necessary for the lawful conduct of the business
and operations of the Banking Offices and such licenses, certificates,
franchises, permits and other governmental authorizations are in full force
and effect and Seller is in all material respects complying therewith.
Nothing in this Section 8.6 shall be deemed or construed to constitute a
representation or warranty with respect to any matter, including but not
limited to any environmental matter, concerning the Owned Real Property to be
conveyed or the Leased Real Property to be assigned pursuant to this
Agreement.
8.7 Leased Real Property and Assumed Contracts.
(a) Schedule 8.7 contains the lease for the Leased Real Property. Except as
contained in Schedule 8.7, there are no other modifications or amendments to
the lease. Seller has performed in all material respects all of its
obligations under the Real Property Lease. Seller has no knowledge of any
failure on the part of lessor under such Real Property Lease to perform its
responsibility under the lease in all material respects.
(b) Schedule 1.3 lists the Assumed Contracts at the Banking Offices as of the
Execution Date. Seller has performed in all material respects all of its
obligations under the Assumed Contracts. Seller has no knowledge of any
failure by any party to any Assumed Contract to have performed its
responsibilities under any such Assumed Contract in all material respects.
8.8 Title to Personal Property. Schedule 1.25 lists the Personal Property at
the Banking Offices as of the Execution Date. Seller has, and on the Closing
Date will have, title to the Personal Property, free and clear of all liens,
encumbrances, and charges.
8.9 Taxes. All payroll, withholding, excise, sales, use, and transfer taxes
imposed by the United States, or by any state, municipality, subdivision, or
instrumentality of the United States, or by any other taxing authority which
are due or payable by Seller relating to the Banking Offices as of the close
of business on the day prior to the Closing Date have been paid in full or
properly accrued and adequately provided for by reserves shown in the records
and books of account of Seller or will be so paid or accrued and provided for
on the Closing Date and Seller will have made all payments due to the lessor
of the Leased Real Property as of the close of business on the Closing Date
on account of real property taxes pursuant to the Real Property Lease. All
tax information reporting and filing requirements and all other requirements
relating to tax returns and reports with respect to the business or
operations of the Banking Offices have been complied with by Seller in all
material respects as of the Execution Date and shall have been complied with
as of Closing except for tax returns not yet due (including appropriately
filed extensions) and with respect to which Seller agrees that the returns
will be timely filed.
8.10 Insurance. Seller shall maintain its insurance policies with
respect to the Assets and Liabilities until and including the Closing Date.
Each such policy is outstanding and in full force and effect and Seller is
the primary beneficiary of such policies.
8.11 Deposits. The deposit accounts of the Seller are federally
insured up to applicable limits and no action is pending or, to the knowledge
of the Seller, threatened, with respect to the termination of such insurance.
8.12 Deposit Liabilities.
(a) Schedule 8.12(a) which shall be dated as of the Customer Notification
Date, shall accurately set forth in all material respects the amount of the
Deposit Liabilities at the Banking Offices as of the Customer Notification
Date.
(b) Schedule 8.12(b) which shall be dated as of a date no more than six
business days prior to the Closing Date, shall accurately set forth in all
material respects the amount of the Deposit Liabilities at the Banking
Offices as of the date thereof.
8.13 Account Loans. Account Loans shall mean those loans owned by Seller that
are secured by a deposit account at the Banking Offices as of the Closing
Date. Schedule 8.13 which shall be dated as of a date no more than six
business days prior to the Closing Date, shall accurately set forth (i) the
Account Loans at the Banking Offices as of the date thereof and (ii) the
aggregate principal amount of the Account Loans, plus accrued and unpaid
interest as of the date thereof. On the Closing Date, each of the Account
Loans will be based upon a valid and binding agreement and Seller will be the
owner of the Account Loans, free and clear of all liens and encumbrances.
8.14 Condemnation. Seller has no knowledge of any pending or threatened
condemnation proceeding concerning the Banking Offices.
8.15 Time of Representations. Each of the representations and
warranties by Seller in this Agreement are, except as otherwise specifically
stated, made as of the Execution Date.
8.16 Representations Complete. No representation or warranty by Seller in
this Agreement or any certificate delivered pursuant hereto contains any
untrue statement of a material fact or omits to state any material fact
necessary to make such representation or warranty not misleading.
ARTICLE 9
REPRESENTATIONS AND WARRANTIES OF PURCHASER
To induce Seller to enter into this Agreement, Purchaser hereby represents
and warrants to Seller as follows:
9.1 Corporate Organization. The Purchaser is duly organized, validly
existing and in good standing as a stock savings bank under the laws of the
State of New York; it has all requisite corporate power and authority and all
necessary authorizations, approvals and orders of and from all governmental
regulatory officials and bodies to own and operate its properties and to
conduct its business as a stock savings bank in the manner in which it is
presently being conducted.
9.2 Authorization. The Purchaser has all requisite corporate power and
authority, and all necessary authorizations, approvals and orders of and from
all governmental regulatory officials and bodies to execute and deliver this
Agreement and to carry out all of the transactions contemplated by this
Agreement other than those regulatory approvals which have been or will be
applied for. The execution and delivery of this Agreement and each of the
documents and instruments contemplated hereby and the consummation of the
transactions contemplated herein have been duly authorized by all necessary
corporate action required to be taken on the part of the Purchaser; and, upon
execution and delivery, this Agreement and, subject to receipt of any
required regulatory approvals, each of such other documents and instruments
will be valid and binding obligations of the Purchaser, enforceable against
the Purchaser in accordance with their terms, subject to bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance, fraudulent
transfers and other similar laws relating to or affecting the enforcement of
creditors' rights against debtors generally or against New York savings banks
in particular and to general principles of equity, whether considered in a
proceeding at law or in equity.
9.3 Non-Contravention. The execution and delivery of this Agreement by
Purchaser does not, and subject to the receipt of the aforementioned
approvals and consents, the consummation of the transactions contemplated
hereby by Purchaser will not constitute (a) a breach or violation of or
default under any law, rule, or regulation, or any judgment, decree, order,
governmental permit, or license, or agreement, indenture, or instrument to
which Purchaser is subject; or (b) a breach or violation of or a default
under the charter or by-laws of Purchaser. The consummation of the
transactions contemplated hereby will not require any consent, waiver or
approval under any such law, rule, regulation, judgment, decree, order,
governmental permit, or license or the consent or approval of any other party
to any such agreement, indenture, or instrument other than those referred to
in Section 5.1 and the required approvals of the applicable regulatory
authorities.
9.4 Litigation. There are no pending or, to the best of the Purchaser's
knowledge, threatened actions, suits or proceedings before any
court, governmental agency, arbitrator or instrumentality which purport to
affect the legality, validity or enforceability of this Agreement, or which
could materially adversely affect the ability of the Purchaser to perform its
obligations under this Agreement, which in any manner questions the validity
of this Agreement or which could serve as a basis for disapproval of the
transactions contemplated hereby by the FDIC, the New York State Banking
Department, Federal Reserve Bank or any other applicable regulatory authority.
9.5 Finders or Brokers. Except for Sandler and O'Neill, Purchaser has not
engaged or employed a broker or finder in connection with this Agreement or
the transaction contemplated hereunder.
9.6 Compliance with Applicable Law. Purchaser holds and has at all times
held all licenses, certificates, franchises, permits and other governmental
authorizations necessary for the lawful conduct of the business and
operations of a New York stock savings bank and such licenses, certificates,
franchises, permits and other governmental authorizations are in full force
and effect and Purchaser is in all material respects complying therewith.
9.7 Deposits. The deposit accounts of the Purchaser are federally insured up
to applicable limits and no action is pending or, to the knowledge of the
Purchaser, threatened, with respect to the termination of such insurance.
9.8 Time of Representations. Each of the representations and
warranties by Purchaser in this Agreement are, except as otherwise
specifically stated, made as of the Execution Date.
9.9 Representations Complete. No representation or warranty made or
given by Purchaser in this Agreement or any certificate delivered pursuant
hereto contains any untrue statement of material fact or omits to state any
material fact necessary to make such representation or warranty not
misleading.
9.10 Community Reinvestment Act. Purchaser has received a rating of
at least satisfactory in its most recent examination or interim review with
respect to the Community Reinvestment Act by each regulatory authority which
examines Purchaser. Purchaser has not been advised of any supervisory
concerns regarding its compliance with the Community Reinvestment Act.
ARTICLE 10
SURVIVAL OF COVENANTS, REPRESENTATIONS AND WARRANTIES AND INDEMNIFICATION
10.1 Survival of Covenants and Representations and Warranties. Except
as provided in Sections 6.7 and 6.8 hereof: (i) all covenants and obligations
of either party which do not by their terms or the terms of this Agreement
survive Closing, shall not survive the Closing Date; and (ii) all
representations and warranties made under Articles 8 and 9 of this Agreement
shall not survive the Closing.
Notwithstanding any other provisions of this Agreement, neither Purchaser nor
Seller shall have any liability pursuant to Section 6.7 or Section 6.8 for
any misrepresentation or breach of warranty under Section 8 and 9 unless (i)
all losses, costs and damages which Seller or Purchaser, as is the case, may
incur by reason of such misrepresentations or breaches of warranty by the
other party shall exceed an aggregate of $25,000.00 in which event such party
shall only be liable for the amount of all such covered losses, costs and
damages in excess of $25,000.00; and (ii) Seller or Purchaser, as is the
case, shall have notified the other party of such misrepresentations or
breaches as provided in Section 10.2 of this Agreement.
10.2 Indemnity Procedures. Promptly upon receipt of notice of any
claim, demand, or assessment or the commencement of any suit, action, or
proceeding in respect of which indemnity may be sought on account of an
indemnity contained in Section 6.7 or 6.8 or as otherwise provided in this
Agreement, the party seeking indemnification (the "Indemnitee") will give
notice thereof to the party from whom indemnification is sought (the
"Indemnitor"), within sufficient time to enable the Indemnitor to respond to
such claims or answer or other plea in such action. The failure of such
Indemnitee to so notify promptly the Indemnitor of any such claim, demand,
assessment, suit, action, or proceeding shall not relieve such Indemnitor
from any liability which it may have to such Indemnitee in connection
therewith on account of the indemnity contained in Section 6.7 or 6.8 or as
otherwise provided in this Agreement unless and only to the extent that the
Indemnitor is prejudiced thereby. In the event any claim, demand or
assessment shall be asserted or suit, action, or proceeding commenced against
an Indemnitee, the Indemnitee shall notify the Indemnitor of the commencement
thereof, and the Indemnitor will be entitled to participate therein and, to
the extent that it may elect to do so, to assume the defense, conduct or
settlement thereof, using counsel approved by the Indemnitee, which approval
will not unreasonably be withheld, provided further that Indemnitor will not
settle any matter involving Indemnitee without first obtaining the prior
written consent of Indemnitee to the settlement, which consent shall not be
unreasonably withheld or delayed. After notice from the Indemnitor to the
Indemnitee of its election to assume the defense, conduct or settlement
thereof, the Indemnitor will not be liable to the Indemnitee for any legal or
other expenses subsequently incurred by the Indemnitee in connection with
such defense, conduct or settlement. The Indemnitee will (a) reasonably
cooperate with the Indemnitor in connection with any such claim, demand,
assessment, suit, action, or proceeding; and (b) make personnel, books, and
records relevant thereto reasonably available to the Indemnitor.
ARTICLE 11
TERMINATION
11.1 Termination of Agreement. This Agreement shall terminate and be of
no further force or effect as between the parties hereto, except as to the
liability for breach of any material covenant, agreement, representation, or
warranty occurring or arising prior to the date of termination, upon the
occurrence of any of the following:
(a) The expiration of 30 days after the New York State Banking Department,
the FDIC or any other governmental agency has denied or finally refused to
grant the approvals or consents required to be obtained pursuant to this
Agreement, unless within said 30 day period the Seller and Purchaser mutually
agree that Purchaser submit or resubmit an application to or appeal the
decision of the regulatory authority which denied or finally refused to grant
approval thereof;
(b) Immediately upon the expiration of thirty (30) days from the date that
Seller has given notice to Purchaser of a breach or default by Purchaser in
the performance of any covenant, agreement, representation, warranty, duty,
or obligation hereunder, provided, however, that no such termination shall be
effective if, within such thirty (30) day period, Purchaser shall have
substantially corrected and cured to Seller's reasonable satisfaction the
grounds for termination as set forth in such notice of termination or Seller
shall have waived such default or breach or shall have extended the time for
such cure;
(c) Immediately upon the expiration of thirty (30) days from the date that
Purchaser has given notice to Seller of a breach or default by Seller in the
performance of any covenant, agreement, representation, warranty, duty, or
obligation hereunder, provided, however, that no such termination shall be
effective if, within such thirty (30) day period, Seller shall have
substantially corrected and cured to Purchaser's reasonable satisfaction the
grounds for termination as set forth in such notice of termination or
Purchaser shall have waived such default or breach or shall have extended the
time for such cure;
(d) By notice of termination from the Purchaser or Seller if the Closing has
not occurred on or before September 30, 1996, provided that in the event of
damage or destruction to one of the Banking Offices as provided in Section
6.15 hereof, the date herein shall be extended to the end of the 180 day
period provided for in Section 6.15; or
(e) The sending of notice of cancellation by Seller as provided in Section
6.6, 6.9 or 6.15.
11.2 Immaterial Breach. Notwithstanding anything to the contrary contained
herein, no party hereto shall have the right to terminate this Agreement on
account of its own breach or because of any immaterial breach by any other
party hereto of any covenant, agreement, representation, warranty, duty,
or obligation hereunder.
11.3 Waiver of Right to Terminate. Any party may, at its election, waive any
of its respective rights to terminate this Agreement under the foregoing
provisions of this Article 11, and the parties shall be deemed to have waived
such rights from and after the Closing Date even though actual settlement
may have been delayed pursuant to the provisions of Article 13 or otherwise.
11.4 Effect of Termination. Except as otherwise provided in this Agreement,
in the event of termination of this Agreement, each party shall be responsible
for its own expenses and neither party shall be liable in damages to the other
unless termination results from the breach or default of this Agreement by
one of the parties.
ARTICLE 12
EFFECT ON THIRD PARTIES
Except as otherwise provided by law, neither the rights of creditors and
depositors of Seller, nor any liability or obligation for payment of money,
nor any claim or cause of action against Seller shall be in any manner
released or impaired by this Agreement or by the transactions contemplated
hereunder, and the rights and obligations of all creditors and depositors and
of all other persons shall remain unimpaired, but Purchaser shall succeed to
all such obligations and liabilities which are included among the Liabilities
from and after the Closing Date and shall be liable from then and thereafter
to pay, discharge, and perform all such liabilities and obligations of Seller
assumed pursuant to this Agreement and in connection with the transactions
contemplated hereunder in the same manner as if Purchaser had itself incurred
the liabilities or obligations.
ARTICLE 13
SETTLEMENT, ADJUSTMENTS AND TRANSITIONAL MATTERS
13.1 Post-Closing Calculation and Settlement. Within thirty (30)
calendar days following the Closing Date, Seller shall deliver a final copy
of Schedule 8.12(b) that shall accurately reflect the Deposit Liabilities as
of the close of business on the Closing Date, a final copy of Schedule 8.13
that shall accurately reflect the aggregate principal amount of Account
Loans, plus accrued and unpaid interest, as of the close of business on the
Closing Date and a final copy of Schedule 1.6 that shall accurately reflect
the amount of Cash on Hand as of the close of business on the Closing Date,
which schedule shall be prepared by Seller based upon a cash count to be
mutually conducted by Seller and Purchaser at the close of business on the
Closing Date. The Purchaser and Seller shall calculate the Final Payment
Amount and prepare the Final Settlement Statement in the form of Exhibit K
hereto, and if the Final Payment Amount is different from the Estimated
Payment Amount calculated as provided in Section 3.3 and Section 7.1, then
Purchaser (if the Estimated Payment Amount exceeds the Final Payment Amount)
or Seller (if the Final Payment Amount exceeds the Estimated Payment Amount)
shall immediately pay such excess amount in immediately available funds to
the other party, together with interest on such excess from the Closing Date
to the date of payment at a simple per annum rate, without any compounding,
at the effective federal funds rates (based on the average of the closing bid
and offered quotations) as published daily by the Wall Street Journal.
13.2 Disputes as to Calculations. Purchaser and Seller agree to use
their best efforts to agree on the calculation of the Estimated Payment
Amount and the Final Payment Amount. In the event that the parties should
fail to agree on any of these calculations, the parties agree to refer the
matters in dispute with respect to such calculations to an independent firm
of certified public accountants of national standing reasonably acceptable to
Purchaser and Seller, and Purchaser and Seller agree to be bound by the
determination of such firm with respect to the disputed matter relating to
the calculation of the Estimated Payment Amount and the Final Payment Amount.
Purchaser and Seller agree to share equally the fees and charges of such
accounting firm for its services in resolving such dispute. If in the
resolution of the dispute, it is determined that one party owes an amount to
the other party, the paying party shall also pay interest on such amount from
the date it should have been paid to the date of payment at the same rate as
provided in Section 13.1.
13.3 Check Processing and Reimbursements. For a period of 60 calendar
days after the Closing Date, Seller shall continue to process and pay checks
or drafts on checking accounts, NOW accounts money market deposit accounts
and Super-NOW accounts drawn on deposit accounts transferred to Purchaser
pursuant to this Agreement, and Purchaser shall reimburse Seller for the
amount of funds paid on such checks or drafts, by wire transfer in
immediately available funds, as herein provided. During said 60 calendar day
period, Seller shall place all such checks or drafts received for collection
on deposit accounts transferred to Purchaser into the possession of a courier
(Federal Express, Purolater, etc.) for delivery to Purchaser the following
business day. Prior to 3:00 P.M. on the day of such receipt, Purchaser shall
make payment to Seller in the aggregate amount of such checks or drafts.
Purchaser shall be responsible for determining if each such check or draft
delivered is properly payable. If any such check or draft is not properly
payable, Purchaser shall dishonor such check or draft and promptly return it
to Seller, which shall return such check or draft to the Federal Reserve Bank
for credit to Seller's account. When Seller's account at the Federal Reserve
Bank is so credited, Seller shall reimburse Purchaser for Purchaser's payment
to Seller hereunder. In addition, Seller shall segregate and notify Purchaser
by telephone on the day a check or draft is presented, of any check or draft
in an amount equal to or exceeding $2,500. Purchaser shall inform Seller
whether any such check or draft is properly payable, and, if it is, it shall
be processed in accordance with this Section 13.3. If such check or draft is
not properly payable, Seller shall dishonor said draft and return it to the
Federal Reserve Bank for credit to Seller's account. After the 60 calendar
day period, Seller shall not accept any checks or drafts received for
collection on deposit accounts transferred to Purchaser pursuant to this
Agreement and such checks and drafts shall be returned marked "Account number
not properly formatted".
13.4 ACH Transactions. With respect to the direct pay and automated clearing
house transactions related to deposit accounts transferred to Purchaser
pursuant to this Agreement, after the Closing Date the Seller and the
Purchaser shall cooperate to obtain all consents necessary to enable
electronic funds transfer deposits and automated clearing house transactions
with respect to such deposit accounts to be made directly to the Purchaser.
Seller agrees that for a period of 60 calendar days following the Closing
Date, it will effectuate all direct pay and automated clearing house
transactions it receives in the same manner and with the same diligence as it
would have prior to the Closing Date. Seller agrees to provide Purchaser with
the daily detail necessary for Purchaser to credit or debit the customer's
account and to allow Purchaser to send notifications of changes. Seller and
Purchaser agree to a timely net daily settlement of these transactions. At
the end of such period of 60 calendar days, Seller shall discontinue
accepting and forwarding ACH entries and funds and return them to the
originators marked "Account Closed."
13.5 Items in Transit. The Purchaser shall obtain the benefit of all
items relating to or originating from the Banking Offices which are in
transit as of the Closing Date.
13.6 Records and Financial Information. The party having control of
the relevant records and financial information used in connection with any
adjustment provided for in this Article 13 shall certify the accuracy of such
record and financial information if reasonably requested by the other party.
13.7 Survival. The obligations of the parties as set forth in this Article
13 shall survive the Closing.
ARTICLE 14
MISCELLANEOUS
14.1 Expenses. Except as is otherwise specifically provided in this
Agreement, whether the Closing takes place or whether this Agreement is
terminated, each party shall pay its own costs and expenses in connection
with this Agreement and the transactions contemplated hereby, including, but
not by way of limitation, all regulatory fees, attorneys fees, accounting
fees and other expenses.
14.2 Notices. All notices, demands, and other such communications
hereunder shall be in writing and shall be deemed to have been duly given if
delivered in person or by Federal Express or similar overnight courier
service, fees prepaid, or by facsimile transmission (followed by telephone
communication and hard copy) or otherwise actually delivered, addressed as
follows:
(a) If to Seller, to:
Howard C. Bluver, Esq.
Senior Vice President and General Counsel
GreenPoint Bank
41-60 Main Street
Flushing, New York 11355
With copies to:
Robert Tramantano, Esq.
Vice President and Deputy
General Counsel
GreenPoint Bank
110 East 42nd Street
New York, New York 10017
Thomas J. Douglas, Jr., Esq.
Cullen and Dykman
Garden City Center
100 Quentin Roosevelt Boulevard
Garden City, New York 11530-4850
(b) If to Purchaser, to:
Mr. Peter Van Kleeck
President and Chief Executive Officer
Pawling Savings Bank
1301 Route 52
Fishkill, New York 12524
with a copy to:
Thomas M. Curtin, Esq.
McCarthy, Fingar, Donovan, Drazen & Smith
11 Martine Avenue
White Plains, New York 10606
The persons or addresses to which deliveries shall be made may change from
time to time by notice given pursuant to the provisions of this Section 14.2.
14.3 Successors and Assigns. All terms and provisions of this
Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective transferees, successors, and assigns, provided,
however, that subject to the provisions of the law affecting
conservatorships, this Agreement and all rights, privileges, duties, and
obligations of the parties hereto may not be assigned or delegated by either
party hereto without the prior written consent of the other party to this
Agreement and provided further that in case of any such assignment or
delegation, the party assigning or delegating also shall remain responsible
as a party hereto.
14.4 Third-Party Beneficiaries. Each party hereto intends that this
Agreement shall not benefit or create any right or cause of action in or on
behalf of any person other than the parties hereto.
14.5 Counterparts. This Agreement may be executed in one or more
counterparts, all of which taken together shall constitute one instrument.
14.6 Governing Law. This Agreement is made and entered into in the
State of New York, and, except where federal law applies, the laws of that
State shall govern the validity and interpretation hereof and the performance
of the parties hereto of their respective duties and obligations hereunder.
14.7 Captions. The captions contained in this Agreement are for
convenience of reference only and do not constitute a part of this Agreement.
14.8 Entire Agreement; Limitations. The making, execution, and
delivery of this Agreement by the parties hereto have been induced by no
representations, statements, warranties, or agreements other than those
herein expressed. This Agreement embodies the entire understanding of the
parties, and there are no further or other agreements or understandings,
written or oral, in effect between the parties relating to the subject matter
hereof. This instrument and the agreements contained herein may be amended or
modified only by an instrument of equal formality signed by the parties or
their duly authorized agents.
14.9 Confidentiality. Purchaser and Seller agree to maintain all information
regarding the negotiation and execution of this Agreement, the consummation
of the transactions contemplated hereby, and all information obtained
pursuant to Section 6.1 and 6.11 in strict confidence and shall not disclose
any such information, except such information as may be in the public domain,
unless required by law or by the financial reporting standards applicable to
the parties and/or their affiliates. The undertakings with regard to
confidentiality shall survive termination of this Agreement and the Closing.
It is understood that the Agreement and the exhibits and schedules attached
hereto shall be filed with the New York State Banking Department, the FDIC
and the Federal Reserve Bank as soon as possible after execution.
14.10 Press Releases. No press release will be issued relating to the
transactions contemplated by this Agreement without prior approval of Seller
and Purchaser. However, either Seller or Purchaser may issue at any time any
press release it believes, on the advice of its counsel, it is obligated to
issue to avoid liability under any law relating to disclosures, but the party
issuing such a press release shall give the other party prior notice and an
opportunity to participate in such release and any press release shall
conform to the confidentiality provisions of Section 14.9.
14.11 Specific Performance. Purchaser and Seller acknowledge that a
breach of this Agreement by either party will cause irreparable harm to the
other party for which there may be no adequate remedy at law, and each agrees
that the other shall be entitled, in addition to its other remedies at law,
to specific performance of this Agreement or any provision thereof.
14.12 Time of the Essence. The parties acknowledge that time is of the
essence with respect to the performance of this Agreement.
14.13 Schedules, Exhibits and Headings. All Schedules and Exhibits
referred to herein or attached hereto shall constitute a part of this
Agreement. Section, paragraph and subparagraph headings and the index
preceding this Agreement are not to be considered part of this Agreement, are
for convenience and reference only, and are not to be deemed to be full or
accurate descriptions of the contents of any paragraph or subparagraph.
14.14 Survival. The obligations of the parties as set forth in this Article
14 shall survive the Closing.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first above written.
PAWLING SAVINGS BANK GREENPOINT BANK
/s/ Peter Van Kleeck /s/ Kevin Stein
- ------------------------ ----------------------------
By: Peter Van Kleeck By: Kevin Stein
Title: President and CEO Title: Senior Vice President
EXHIBIT A
PRELIMINARY SETTLEMENT STATEMENT
This Preliminary Settlement Statement is provided by GreenPoint Bank
("Seller"), pursuant to the terms of that certain Purchase of Assets and
Liability Assumption Agreement dated as of ____________ , 1995 by and
between Seller and Purchaser (the "Agreement"). Unless otherwise defined,
all capitalized terms used in this Preliminary Settlement Statement shall
have the meanings ascribed to them in the Agreement.
Calculation of Estimated Payment Amount
I.
A. Preliminary Deposit Payment Amount $__________
B. Preliminary Purchase Price equals the sum of:
Price of the Personal Property $__________
Net Book Value of Leasehold
Improvements $__________
Real Property Purchase Price $__________
Cash On Hand $__________
Safe Deposit Business Purchase Price $__________
Aggregate principal amount of Account
Loans, plus accrued and unpaid
interest, as of the close of business
on Closing Date $__________
Deposit Premium $__________
Preliminary Purchase Price $__________
C. Net amount (positive or negative) of
real property prorations, fees, taxes
and other apportionments payable by
Purchaser to Seller pursuant
to Section 3.5 of the Agreement $__________
II.
Preliminary Deposit Payment Amount $__________
less Preliminary Purchase Price $__________
less real property prorations and other
apportionments pursuant to Section 3.5
of the Agreement $__________
equals ESTIMATED PAYMENT AMOUNT $__________
Date:__________
EXHIBIT B
ASSIGNMENT OF LEASE AND ASSUMPTION AGREEMENT
This Agreement is made by and between GreenPoint Bank as
successor-in-interest to Rockland National Bank ("Tenant") and Pawling
Savings Bank ("Assignee") with respect to the following lease:
(a) Lease dated as of February 1, 1966, between Dutch Square Shopping Center,
as Landlord and Rockland National Bank for the lease of those certain
premises located at 455 Route 306, Wesley Hills, New York (f/k/a 369 Route
306, Monsey, New York);
(b) Said lease was assigned by Empire National Bank, as successor-in-interest
to Rockland National Bank, to Spring Valley Savings & Loan Association
("Spring Valley") pursuant to an agreement dated May 31, 1978. Spring Valley
was subsequently merged into CrossLand Savings, FSB, predecessor-in-interest
to CrossLand Federal Savings Bank ("CrossLand"). Said lease was modified and
extended by a Lease Extension Agreement dated as of October 19, 1989 between
Landlord and CrossLand. Said lease was assigned by CrossLand to Tenant
pursuant to an agreement dated December 4, 1992.
(c) The premises was sold to Wesley Hills Shopping Center, Inc. on April 5,
1988. The premises was then sold to Eric Bergstol ("Landlord") on March 2,
1989.
(d) Said lease was modified and extended by a Lease Extension Agreement dated
as of June 28, 1995 between Landlord and Tenant.
The lease dated as of February 1, 1966, its subsequent assignments,
extensions and modifications described above are referred to herein
collectively as the "Lease".
Tenant desires to assign all of its right, title and interest under the Lease
to Assignee and Assignee is willing to assume all of Tenant's obligations
under the Lease. The effective date of such assignment shall be
______________, 1996 (the "Effective Date").
In consideration of the mutual promises contained herein and other good and
valuable consideration, the parties now agree:
1. Tenant hereby transfers and assigns to the Assignee all of Tenant's right,
title and interest in and to the Lease, such Assignment to be effective as of
the Effective Date.
2. The Assignee hereby assumes the performance of all the obligations of the
Tenant accruing from and after the Effective Date and agrees to pay all rent
and other charges until the termination of the Lease and shall fully perform
all the terms, covenants, provisions and conditions of the Lease herein
assigned, all with the full force and effect as if the Assignee had signed
the Lease originally as tenant named therein.
3. All representations, warranties and indemnifications to the extent set
forth in the Purchase and Assumption Agreement dated _____________, 1995
between Tenant and Assignee are incorporated herein.
Dated this ___ day of ______________, 1996.
GreenPoint Bank, Tenant
By_____________________________________
Pawling Savings Bank, Assignee
By_____________________________________
EXHIBIT C
LANDLORD'S CONSENT TO ASSIGNMENT AND ESTOPPEL
TO:____________________
____________________
____________________
Re:Lease Agreement between Eric Bergstol as successor-in- interest to Dutch
Square Shopping Center, Inc. ("Landlord") and GreenPoint Bank as
successor-in-interest to Rockland National Bank ("Tenant") dated February 1,
1966
Gentlemen:
The undersigned has been advised that Pawling Savings Bank ("Purchaser") is
about to acquire the Tenant's interest in the lease referred to above which
covers that certain real property located at 455 Route 306, Wesley Hills, New
York (f/k/a 369 Route 306, Monsey, New York) and which is more fully
described in said lease (the "Property").
In connection with your acquisition of Tenant's interest in the
above-referenced lease, Landlord represents and warrants as follows:
1. Tenant has leased the Property, which consists of approximately 3,360
square feet of building space with an adjacent parking lot and drive-in
facilities, pursuant to the above-referenced lease which is now in full force
and effect and has not been amended, assigned or otherwise modified in any
way, except as follows:
(a) Said lease was assigned by Empire National Bank, as successor-in-interest
to Rockland National Bank, to Spring Valley Savings & Loan Association
("Spring Valley") pursuant to an agreement dated May 31, 1978. Spring Valley
was subsequently merged into CrossLand Savings, FSB, predecessor-in-interest
to CrossLand Federal Savings Bank ("CrossLand");
(b) Said lease was modified and extended by a Lease Extension Agreement dated
as of October 19, 1989 between Eric Bergstol and CrossLand. Said lease was
assigned by CrossLand to Tenant pursuant to an agreement dated December 4,
1992; and
(c) Said lease was modified and extended by a Lease Extension Agreement dated
as of June 28, 1995 between Eric Bergstol and Tenant.
The lease and its subsequent assignments, extensions and modifications
described above are referred to collectively herein as the "Lease".
2. The Lease constitutes the sole and entire agreement between Landlord and
Tenant with regard to the property, and there are no other agreements,
written or oral, affecting the Property or Tenant's use thereof.
3. Any and all improvements required by the terms of the Lease to be
constructed by the Tenant have been completed to the satisfaction of
Landlord. Any alterations or other modifications to the improvements on the
Property have been approved, as and if required by the Lease, by Landlord and
the improvements on the Property as of the date hereof comply in all material
respects with the Lease. Tenant is the owner of all improvements subject to
its obligations to surrender or remove the same upon termination of the Lease
in accordance with the terms thereof.
4. The Lease is in full force and effect, and neither Landlord nor Tenant is
currently in breach of any term or condition of the Lease nor is there any
event of default existing nor any fact or circumstance which with or without
the giving of notice or the passage of time or both would constitute an event
of default under the Lease.
5. The term of the Lease commenced June 1, 1966 and pursuant to a Lease
Extension Agreement dated June 28, 1995, expires on May 31, 2001. The June
28, 1995 Lease Extension Agreement contains two successive five year renewal
options, which assignee shall have the benefit of and the right to exercise,
subject to the terms of the Lease.
6. Tenant is currently paying rent under the Lease in the amount of
$___________ per month and is not in default in the payment thereof. Rent has
been paid under the Lease through ________________.
7. The sole and exclusive provision of the Lease regarding alterations and
additions to the Property and signage are set forth in the Lease.
8. Landlord is not presently considering nor has it (i) made a general
assignment for the benefit of creditors; (ii) filed any voluntary petition in
bankruptcy or suffered the filing of an involuntary petition by its
creditors; (iii) suffered the appointment of a receiver to take possession of
all or substantially all of its assets; (iv) suffered the attachment or other
judicial seizure of all, or substantially all, of its assets; (v) admitted in
writings its inability to pay its debts as they come due; or (vi) made an
offer of settlement, extension or composition of its creditors generally.
9. Landlord hereby consents, as and where required by the Lease, to the
assignment by Tenant of its interest in the Lease to Pawling Savings Bank,
effective as of the date of such Assignment, and all future notices or
communications permitted or required under the Lease shall be sent to
Purchaser as tenant as follows:
Attn.:_____________________
Executed by the Landlord this ____ day of __________, 1996.
___________________________
Eric Bergstol
Landlord
EXHIBIT D
ASSIGNMENT AND ASSUMPTION AGREEMENT
This Assignment and Assumption Agreement is entered into as of the ____ day
of ____________, 1996, by and between GreenPoint Bank ("Seller") and Pawling
Savings Bank ("Purchaser").
Seller and Purchaser are parties to that certain Purchase of Assets and
Liability Assumption Agreement dated _____________, 1995 (the "Agreement")
pursuant to which Seller agreed to sell to Purchaser and Purchaser agreed to
purchase from Seller, certain Assets in connection with the business of
Seller's banking offices located in Chestnut Ridge and Wesley Hills, New York
(the "Banking Offices"). In connection therewith, Purchaser agreed to assume
all or substantially all customer deposit accounts and certain other
liabilities held by Seller at the Banking Offices.
The purpose of this Assignment and Assumption Agreement is to evidence the
transfer and assumption of such deposit accounts and the assignment of
certain related matters.
Therefore, for good and valuable consideration, the parties agree as follows:
1. Assumed Contracts. Seller hereby transfers and assigns to Purchaser all of
Seller's right, title and interest in and to the Assumed Contracts as of the
date hereof, as such capitalized terms are defined in the Agreement, and
Purchaser hereby agrees to accept the Assumed Contracts and perform all
obligations thereunder from and after the date hereof. "Assumed Contracts"
shall mean contracts described on Schedule 1.3 attached hereto.
2. Deposit Liabilities. Seller hereby transfers and assigns to Purchaser all
of Seller's obligations and liabilities to customers including payment of
principal and interest in respect of all Deposit Liabilities held at the
Banking Offices as of the close of business on the Closing Date (the
"Transferred Deposits"), and Purchaser hereby assumes and agrees to pay and
perform all such obligations and liabilities after the Closing Date in
accordance with their terms and in accordance with the Agreement.
3. Safe Deposit Business. Seller hereby transfers and assigns to Purchaser
all of Seller's right, title, and interest in and to the Safe Deposit
Business conducted by Seller at the Banking Offices, including but not
limited to, the physical assets of the safe deposit boxes located in the
vaults at the Banking Offices, all safe deposit lease agreements with the
lessees thereof, safe deposit box keys, signature cards, combinations,
agreements and records located at the Banking Offices and pertaining to the
operation of the Safe Deposit Business.
4. Account Loans. Seller hereby transfers and assigns to Purchaser all of
Seller's right, title and interest in and to the Account Loans. "Account
Loans" shall mean those loans as set forth on Schedule 8.13 attached hereto.
This Agreement has been executed as of the date first above written.
Pawling Savings Bank GreenPoint Bank
By:____________________ By:____________________
Its:___________________ Its:___________________
EXHIBIT F
FORM OF OPINION OF COUNSEL TO SELLER
(To be provided at the Closing by Cullen and Dykman)
[Date]
[Purchaser]
Ladies and Gentlemen:
We have acted as counsel for GreenPoint Bank ("Seller") in connection with
the sale of certain assets and assumptions of certain liabilities to
[ ___________________________ ] ("Purchaser") pursuant to the terms of a
Purchase of Assets and Liability Assumption Agreement between Purchaser and
Seller dated as of _____________________________ , 1995 ("Agreement").
Capitalized terms used herein but not defined and which are defined in the
Agreement shall have the meanings set forth in the Agreement.
In such capacity, we have examined such certificates, agreements and other
documents as we deemed appropriate and necessary under the circumstances to
render the opinions hereinafter expressed. In addition, we have examined the
originals, or copies certified to our satisfaction of corporate records of
Seller, certificates or other written statements of public officials and
certificates of officers of Seller and agreements, instruments and documents
as we have deemed necessary as a basis for the opinions hereinafter
expressed. As to questions of fact material to such opinions, we have, when
relevant facts were not independently established by us, relied upon the
aforesaid certificates and other documents. In such examination we have
assumed the genuineness of all signatures, the authenticity of all documents
submitted to us as originals and the conformity to original documents of all
documents submitted to us as copies. We have assumed that Purchaser has the
power and authority to enter into the Agreement and to undertake the
transactions contemplated thereby and that the Agreement has been duly
authorized, executed and delivered by Purchaser.
Members of this firm are admitted to the Bar of the State of New York and we
express no opinion as to the laws of any other jurisdiction, except the laws
of the United States of America to the extent specifically referred to
herein.
Based on the foregoing, and subject to recognition of the scope of the
investigations we have made and to the accuracy of the information that has
been presented to us and to such conditions and limitations as may be noted
below, we are of the opinion that:
(i) The execution and delivery of the Agreement
has been duly authorized by all necessary corporate action on the part of
Seller, and the Agreement constitutes the valid and binding obligation of
Seller enforceable in accordance with its terms, subject as to enforcement,
to bankruptcy, insolvency, reorganization, fraudulent conveyance, and other
laws of general applicability relating to or affecting creditors' rights, and
to general equity principles;
(ii) Seller is duly incorporated and in good standing as a stock savings bank
under the laws of the State of New York and has full corporate power and
authority to enter into and perform its obligations under the Agreement;
(iii) Neither the execution and delivery of the Agreement nor its performance
are restricted by or violate the Charter or by-laws of Seller, or any
contractual or other obligation of Seller of which we have knowledge, it
being understood that we have no duty to make any investigation as to whether
the execution and delivery of the Agreement or its performance would be
restricted by any contractual or other obligation;
(iv) To the best of our knowledge, after reasonable investigation, all acts
and proceedings required by law or the Agreement to be undertaken by Seller
(including without limitation regulatory approvals) and all corporate action
has been taken by Seller at or prior to the Closing Date to authorize and
complete the consummation of the transactions covered and contemplated by the
Agreement have been duly and validly taken; and
(v) We have no knowledge of any pending or threatened litigation of the type
described in Section 8.4 of the Agreement threatened against or affecting
Seller or any litigation in which Seller is engaged relating to its right to
perform the Agreement, it being understood that we have no duty to make any
investigation with respect to such matters.
This opinion is furnished by us as counsel for Seller to you solely for your
benefit, and solely with regard to the transaction contemplated by the
Agreement. It may not be used, circulated, quoted or otherwise referred to
for any other purpose without our express written permission.
Very truly yours,
EXHIBIT G
FORM OF SELLER'S OFFICER'S CERTIFICATE
The undersigned ____________________ , hereby certifies that he is the duly
elected ________________ of GreenPoint Bank ("Seller"), a New York banking
corporation, and as such delivers this certificate pursuant to the Purchase
of Assets and Liability Assumption Agreement dated as of__________, 1995
(the "Agreement"), by and between Seller and Pawling Savings Bank, and further
certifies that:
(a) Each of the terms, covenants and conditions of the Agreement to be
complied with and performed by Seller on or before this date have been duly
complied with and performed in all material respects, and all documents to be
delivered or actions to be taken by Seller pursuant to Section 7.2 of the
Agreement have been delivered or performed; and
(b) Each of the representations and warranties made by Seller in the
Agreement are true and correct as of this date with the same force and effect
as though such representations and warranties are made as of this date,
except in the case of (i) a representation and warranty which references a
specific date which representation and warranty is true and correct as of
such date and (ii) that the representations and warranties made regarding
Schedule 1.3 are true and correct as of this date with respect to such
Schedule 1.3 as updated and delivered on this date.
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
the __________ day of__________ , 1996.
GREENPOINT BANK
By____________________
[Name]
[Title]
EXHIBIT H
CERTIFICATE OF NON-FOREIGN STATUS
Section 1445 of the Internal Revenue Code of 1986, as amended (the "Code"),
provides that a transferee of a U.S. real property interest must withhold tax
if the transferor is a foreign person. To inform Purchaser, a __________ bank
("Transferee"), that the withholding of taxes is not required upon the
disposition of U.S. real property interests by GreenPoint Bank, a savings
bank ("Transferor"), the undersigned hereby certifies the following on behalf
of Transferor:
1. Transferor is not a foreign corporation, foreign partnership, foreign
trust, or foreign estate (as those terms are defined in the Code and the
Income Tax Regulations promulgated thereunder);
2. Transferor's U.S. employer identification number is ____________________;
and
3. Transferor's office address is 41-60 Main Street, Flushing, New York 11355.
Dated:______________, 19___
GREENPOINT BANK
By:____________________
Its:___________________
EXHIBIT I
FORM OF OPINION OF COUNSEL TO PURCHASER
(To be provided at the Closing by [__________________])
[Date]
GreenPoint Bank
41-60 Main Street
Flushing, New York 11355
Ladies and Gentlemen:
We have acted as counsel for Pawling Savings Bank ("Purchaser") in connection
with the Purchaser's acquisition of certain assets and assumptions of certain
liabilities of GreenPoint Bank ("Seller") pursuant to the terms of a Purchase
of Assets and Liability Assumption Agreement between Purchaser and Seller
dated as of _______________________ , 1995 ("Agreement"). Capitalized terms
used herein but not defined and which are defined in the Agreement shall
have the meanings set forth in the Agreement.
In such capacity, we have examined such certificates, agreements and other
documents as we deemed appropriate and necessary under the circumstances to
render the opinions hereinafter expressed. In addition, we have examined the
originals, or copies certified to our satisfaction of corporate records of
Purchaser, certificates or other written statements of public officials and
certificates of officers of Purchaser and agreements, instruments and
documents as we have deemed necessary as a basis for the opinions hereinafter
expressed. As to questions of fact material to such opinions, we have, when
relevant facts were not independently established by us, relied upon the
aforesaid certificates and other documents. In such examination we have
assumed the genuineness of all signatures, the authenticity of all documents
submitted to us as originals and the conformity to original documents of all
documents submitted to us as copies. We have assumed that Seller has the
power and authority to enter into the Agreement and to undertake the
transactions contemplated thereby and that the Agreement has been duly
authorized, executed and delivered by Purchaser.
Members of this firm are admitted to the Bar of the State of New York and we
express no opinion as to the laws of any other jurisdiction, except the laws
of the United States of America to the extent specifically referred to
herein.
Based on the foregoing, and subject to recognition of the scope of the
investigations we have made and to the accuracy of the information that has
been presented to us and to such conditions and limitations as may be noted
below, we are of the opinion that:
(i) The execution and delivery of the Agreement has been duly authorized by
all necessary corporate action on the part of Purchaser, and the Agreement
constitutes the valid and binding obligation of Purchaser, enforceable in
accordance with its terms, subject as to enforcement, to bankruptcy,
insolvency, reorganization, fraudulent conveyance, and other laws of general
applicability relating to or affecting creditors' rights, and to general
equity principles;
(ii) Purchaser is duly incorporated, validly existing and in good
standing as a [____________________] under the laws of [___________________],
and has full corporate power and authority to enter into and perform its
obligations under this Agreement;
(iii) Neither the execution and delivery of the Agreement nor its performance
are restricted by or violate the Charter or By-Laws of Purchaser, or any
contractual or other obligation of Purchaser of which we have knowledge, it
being understood that we have no duty to make any investigation as to whether
or not the execution and delivery of the Agreement or its performance would
be restricted by any such contractual or other obligation;
(iv) To the best of our knowledge, after reasonable investigation, all acts
and proceedings required by law or the Agreement to be undertaken by
Purchaser (including, without limitation, all regulatory approvals) and all
corporate action by Purchaser at or prior to the Closing Date to authorize
and complete the consummation of the transactions covered and contemplated by
the Agreement have been duly and validly taken; and
(v) We have no knowledge of any litigation of the nature described in Section
9.4 of the Agreement threatened against or affecting Purchaser or any
litigation in which Purchaser is engaged relating to its right to perform the
Agreement, it being understood we have no duty to make any investigation as
to such matters.
This opinion is furnished by us as counsel for Seller to you solely for your
benefit, and solely with regard to the transaction contemplated by the
Agreement. It may not be used, circulated, quoted or otherwise referred to
for any other purpose without our express written permission.
Very truly yours,
EXHIBIT J
FORM OF PURCHASER'S OFFICER'S CERTIFICATE
The undersigned,____________________, hereby certifies that he is the duly
elected ____________________ of Pawling Savings Bank ("Purchaser")
a____________________, and, as such delivers this certificate
pursuant to the Purchase of Assets and Liability Assumption Agreement dated
as of______, 1995 (the "Agreement"), by and between __________ and
GreenPoint Bank and further certifies that:
(a) Each of the terms, covenants and conditions of the Agreement to be
complied with and performed by Purchaser on or before this date have been
duly complied with and performed in all material respects, and all documents
to be delivered or actions to be taken by Purchaser pursuant to Section 7.3
of the Agreement have been delivered or performed; and
(b) Each of the representations and warranties made by Purchaser in the
Agreement are true and correct as of this date with the same force and effect
as though such representations and warranties are made as of this date.
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
the__________ date of______, 1996.
Pawling Savings Bank
By____________________
[Name]
[Title]
EXHIBIT K
FINAL SETTLEMENT STATEMENT
This Final Settlement Statement is provided by GreenPoint Bank pursuant to
the terms of that certain Purchase of Assets and Liability Assumption
Agreement dated as of __________________ , 1995 by and between Seller and
Purchaser (the "Agreement"). Unless otherwise defined, all capitalized
terms used in this Final Settlement Statement shall have the meanings
ascribed to them in the Agreement.
Calculation of Final Payment Amount
I.
A. Final Deposit Payment Amount $__________
B. Final Purchase Price equals the sum of:
Price of the Personal Property $__________
Net Book Value of Leasehold Improvements $__________
Real Property Purchase Price $__________
Cash On Hand $__________
Safe Deposit Business Purchase Price $__________
Aggregate principal amount of Account
Loans, plus accrued and unpaid interest,
as of the close of business on Closing
Date $__________
Deposit Premium $__________
Final Purchase Price $__________
C. Net amount (positive or negative) of
real property prorations, fees, taxes
and other apportionments payable by
Purchaser to Seller pursuant
to Section 3.5 of the Agreement $__________
II.
Final Deposit Payment Amount $__________
less Final Purchase Price $__________
less real property prorations and other
apportionments pursuant to Section 3.5
of the Agreement $__________
equals FINAL PAYMENT AMOUNT $__________
III.
Estimated Payment Amount (paid on Closing Date) $__________
Amount Final Payment Amount exceeds
Estimated Payment Amount $__________
Interest $__________
Total to be paid to Purchaser by Seller $__________
OR
Amount Estimated Payment Amount exceeds
Final Payment Amount $__________
Interest $__________
Total to be paid to Seller by Purchaser $__________
Date:____________________
EXHIBIT L
[To be executed by each of Seller and Purchaser]
RETIREMENT ACCOUNT TRANSFER AGREEMENT
This Agreement (the "Transfer Agreement") is made between GreenPoint Bank, a
New York banking corporation ("Resigning Trustee") and Pawling Savings Bank,
a __________ bank ("Successor Trustee"). Capitalized terms not defined herein
shall have the meanings assigned to them in the Purchase of Assets and
Liability Assumption Agreement made and entered into as of the__________ day
of____________________, 199__ by and between Resigning Trustee and Successor
Trustee (the "Agreement").
RECITALS
A. Resigning Trustee has served as trustee with respect to certain retirement
accounts including individual retirement accounts, "Keogh" accounts and "SEP"
accounts (collectively, the "Plans"), included within the Agreement, the
funds of which are domiciled at the Banking Offices.
B. Pursuant to the Agreement, Successor Trustee is acquiring from Resigning
Trustee certain Deposit Accounts, including Deposit Accounts holding funds of
the Plans.
C. In connection with the acquisition of such Deposit Accounts, Successor
Trustee will succeed to the trusteeship for the Plans and become successor
trustee in the place of Resigning Trustee.
D. The parties deem it necessary and advisable to execute this Transfer
Agreement in order to describe the terms of transfer of the Plans and the
duties and responsibilities of the parties with regard thereto.
E. Execution of this Transfer Agreement is an element of the consideration
for the execution by the parties of the Agreement and a condition to Closing
thereunder.
TRANSFER AGREEMENT
Now, therefore, in consideration of the mutual promises contained herein and
in the Agreement, and other good and valuable consideration, the receipt and
sufficiency of which the parties hereby acknowledge, the parties hereby agree
as follows:
1.1 Effective as of the close of business on the Closing Date, the Resigning
Trustee hereby resigns as trustee with respect to the Plans and appoints
Successor Trustee as the successor trustee with respect to the Plans.
Successor Trustee hereby accepts such appointment, effective as of the close
of business on the Closing Date.
1.2 After the Closing Date, the Successor Trustee shall not accept any new
plans naming the Resigning Trustee as trustee, nor shall the Successor
Trustee use any advertising, materials, plan documents, or any other printed
matter referring to the Resigning Trustee as trustee of any retirement
accounts.
1.3 The Resigning Trustee shall prepare and file all required year-end
reports for all activity under the Plans transferred to Successor Trustee,
including IRS form 1099R and IRS form 5498 for the portion of the calendar
year 1996 to and including the Closing Date. The Successor Trustee shall
prepare and file such reports, where applicable, for the balance of the
calendar year 1996 and thereafter, so long as the Successor Trustee remains
as the trustee. It is further agreed that the Resigning Trustee and Successor
Trustee will each report their portion of withholding for such Plans to the
appropriate state and federal agencies.
1.4 In the event that the Resigning Trustee receives after the Closing Date,
any documents, correspondence or other written materials relating to the
Plans transferred to Successor Trustee, the Resigning Trustee will promptly
forward such items to the Successor Trustee. The Resigning Trustee and the
Successor Trustee each agree to answer reasonable inquiries from authorized
agents of the other Trustee pertaining to the Plans and any pending
transactions or items received after the Closing Date.
1.5 On the Closing Date, the Resigning Trustee shall deliver to the Successor
Trustee, in a medium acceptable to the parties, all original or legible
certified copies of (i) all documents executed by the depositors of the Plans
to be transferred to Successor Trustee, including but not limited to all
adoption agreements, membership agreements, plan amendments, and beneficiary
forms, and (ii) all other records and information necessary to allow the
Successor Trustee to administer and conduct business with respect to such
Plans, provided, however, that the authorized agents of the Resigning Trustee
shall be given access to such records as reasonably necessary in order to
resolve any issues which may arise or relate to the Resigning Trustee's
trusteeship.
1.6 No later than the Closing Date, the Resigning Trustee agrees to provide
the Successor Trustee, with a complete and up-to-date listing of:
(a) any and all participants of the Plans transferred to Successor Trustee
that will have reached age 70 1/2 before January 1, 1997, and balances as of
December 31, 1995 required for calculation of mandatory minimum
distributions;
(b) any or all Plans at Resigning Trustee's Banking Offices receiving
periodic distributions, the method of calculation for arriving at such
amounts distributed, and copies of the approved distribution forms;
(c) any and all Plans domiciled at the Banking Offices;
(d) any and all Plans at the Banking Offices currently not exempted from
either federal tax withholding or state withholding, or both, and current
filing status for each participant where withholding may apply; and
(e) any and all Plans at Resigning Trustee's Banking Offices where the Plan
participant has died, the date of death (if known) and a legible copy of the
death certificate when available.
1.7 The Resigning Trustee agrees that, prior to the Closing Date, it shall
make any and all of the following transfers, distributions and, where
appropriate, withholdings, and take all of the following actions, each as
required to be made or taken prior to the Closing Date:
(a) all scheduled 1996 mandatory minimum distribution payments;
(b) all scheduled or pending transfers; and
(c) all scheduled periodic and non-periodic distributions.
1.8 The Successor Trustee agrees to indemnify and hold harmless the Resigning
Trustee, its affiliates, successors, directors, officers, employees and
agents from any and all losses, costs (including reasonable attorneys' fees),
expenses, damages, liabilities, or penalties or every kind whatsoever that
the Resigning Trustee, its affiliates, successors, directors, officers,
employees, or agents may incur as a result of the Successor Trustee's failure
to perform its obligations under this Transfer Agreement or under any of the
Plans or by reason of any act, omission or breach of fiduciary obligation by
the Successor Trustee after the close of business on the Closing Date.
1.9 The Resigning Trustee agrees to indemnify and hold harmless the Successor
Trustee, its affiliates, successors, directors, officers, employees and
agents from any and all losses, costs (including reasonable attorneys' fees),
expenses, damages, liabilities, or penalties of every kind whatsoever that
the Successor Trustee, its affiliates, successors, directors, officers,
employees, or agents may incur as a result of Resigning Trustee's failure to
perform its obligations under this Transfer Agreement or under any of the
Plans or by reason of any act, omission, or breach of fiduciary obligation by
the Resigning Trustee prior to the close of business on the Closing Date.
1.10 If any action or proceeding is brought by either party against the other
pertaining to or arising out of this Transfer Agreement, the final prevailing
party shall be entitled to recover all costs and expenses, including
reasonable attorneys' fees, incurred on account of such action or proceeding.
1.11 This Transfer Agreement may be executed in any number of counterparts,
each of which shall be an original but all of which constitute one and the
same instrument.
Executed this__________ day of__________, 1996.
GREENPOINT BANK PAWLING SAVINGS BANK
By:____________________ By:____________________
Its:___________________ Its:___________________
Schedule 1.30
Fair Market Value of Owned Real Property
The Real Property Purchase Price shall be determined as follows:
(i) Seller and Purchaser shall mutually agree upon and appoint two (2)
independent, certified appraisers to determine the fair market value of the
Owned Real Property as of the date of such appraisals (the cost of the
appraisers to be equally divided between Seller and Purchaser);
(ii) The Real Property Purchase Price shall be equal to the average of the
two (2) fair market values of the Owned Real Property as determined by the
two (2) appraisers appointed by Seller and Purchaser as provided herein.
Schedule 6.9(b)
Fair Market Rent for Net Lease for Owned Real Property
The Fair Market Rent for the net lease for the Owned Real Property shall be
determined as follows:
(i) Seller and Purchaser shall mutually agree upon and appoint two (2)
independent, certified appraisers to determine the fair market rent for the
net lease of the Owned Real Property on the terms provided in the Agreement
as of the date of such appraisals (the cost of the appraisers to be equally
divided between Seller and Purchaser);
(ii) The fair market rent for the net lease of the Owned Real Property on the
terms provided in the Agreement shall be equal to the average of the two (2)
fair market rents for the net lease of the Owned Real Property as determined
by the two (2) appraisers appointed by Seller and Purchaser as provided
herein.
Schedule 6.9(d)
Hazardous Substances Reduction
The Hazardous Substances Reduction shall be determined as follows:
(i) Seller and Purchaser shall mutually agree upon and appoint two (2)
independent, qualified environmental consultants to determine the reasonable
cost remaining to eliminate or otherwise remedy the Hazardous Substances at
the Owned Real Property as of the date of such determination (the cost of the
environmental consultants to be equally divided between Seller and
Purchaser);
(ii) The Hazardous Substances Reduction shall be equal to the average of the
two (2) reasonable costs to eliminate or otherwise remedy the Hazardous
Substances at the Owned Real Property as determined by the two (2)
environmental consultants appointed by Seller and Purchaser as provided
herein.
Schedule 6.15(f)
Title Problem Reduction
The Title Problem Reduction shall be determined as follows:
(i) Seller and Purchaser shall mutually agree upon and appoint two (2)
independent, qualified real property title experts to determine the
reasonable cost remaining to cure the Title Policy Problem at the Owned Real
Property as of the date of such determination (the cost of the real property
title experts to be equally divided between Seller and Purchaser);
(ii) The Title Problem Reduction shall be equal to the average of the two (2)
reasonable costs remaining to cure the Title Policy Problem at the Owned Real
Property as determined by the two (2) real property title experts appointed
by Seller and Purchaser as provided herein.
EXHIBIT 99
Dated April 19, 1996
FOR IMMEDIATE RELEASE
DATE: April 15, 1996
CONTACT: Peter Van Kleeck
President & CEO
(914) 897-7400
PAWLING SAVINGS BANK
COMPLETES ACQUISITION OF
TWO GREENPOINT ROCKLAND BRANCHES
FISHKILL, NEW YORK (NASDAQ: PSBK). . . . On April 12, 1996, Pawling Savings
Bank, a wholly owned subsidiary of Progressive Bank, Inc., completed its
acquisition of two GreenPoint Bank branches located at Chestnut Ridge and
Wesley Hills in Rockland County.
Peter Van Kleeck, President and CEO of Pawling Savings Bank, stated "We are
pleased to extend our personal commitment to serve the banking needs of these
communities in Rockland County. We have long felt that Rockland County would
provide an excellent opportunity for our Bank. This opportunity fits very
well with our strategic plan and we are excited about providing increased
financial services to our new customers and businesses of the County."
Pawling Savings Bank has assumed approximately $154.0 million in deposits
with the acquisition of the two branch offices. The transaction was agreed
upon by the two organizations in December 1995 and received regulatory
approval on March 11, 1996.
Progressive Bank, Inc., the parent company of Pawling Savings Bank has
consolidated assets of approximately $895.0 million after the acquisition
with 17 branches throughout the Hudson Valley and loan production offices in
both Harriman and White Plains, New York.
