Exhibit 2.1
PURCHASE AND ASSUMPTION AGREEMENT
BOSTON BRANCH OFFICE
dated as of February 22, 2005
between
ATLANTIC BANK OF NEW YORK
and
THE FIRST NATIONAL BANK OF IPSWICH
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Table of Contents
Page
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ARTICLE I
DEFINED
TERMS................................................................4
Section 1.1
Definitions..................................................4
ARTICLE II
TERMS OF ASSIGNMENT AND ASSUMPTION AND
PURCHASE..............................7
Section 2.1 Transfer of
Assets...........................................7
Section 2.2 Assignment and Assumption of
Liabilities.....................7
Section 2.3 Consideration to
Seller......................................7
Section 2.4 Consideration to
Purchaser...................................8
Section 2.5 Payment and
Timing...........................................8
Section 2.6 Post Closing
Adjustment......................................9
ARTICLE III
COVENANTS...................................................................10
Section 3.1 Settlement Operations after
Closing.........................10
Section 3.2 Items in
Transit............................................11
Section 3.3 Stop Payment
Items..........................................11
Section 3.4 Unreconciled Passbook
Accounts..............................12
Section 3.5 Books and
Records...........................................12
Section 3.6 Data
Processing.............................................13
Section 3.7 Regulatory
Approvals........................................13
Section 3.8
IRAs........................................................14
Section 3.9
Contracts...................................................14
Section 3.10 Change of Name and Notice to
Customers.....................15
Section 3.11 Removal of
Signage.........................................16
Section 3.12
Taxes......................................................16
Section 3.13 Employees and Employee
Benefits............................16
Section 3.14 Safe Deposit
Boxes.........................................18
Section 3.15 ABA Routing
Number.........................................18
Section 3.16 Seller's Actions Prior to
Closing..........................18
Section 3.17 Purchaser's Actions Prior to
Closing.......................19
Section 3.18 Cooperation and Further
Assurances.........................19
Section 3.19 Post-Closing
Cooperation...................................19
ARTICLE IV
COVENANT NOT TO
COMPETE.....................................................20
Section 4.1 Solicitation of
Accounts....................................20
Section 4.2 Enforcement and
Remedies....................................20
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Table of Contents
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ARTICLE V
REPRESENTATIONS AND WARRANTIES OF
SELLER....................................20
Section 5.1 Corporate
Organization......................................20
Section 5.2
Authorization...............................................20
Section 5.3 Approvals to Operate
Branch.................................21
Section 5.4
Litigation..................................................21
Section 5.5
Non-Contravention...........................................21
Section 5.6 Consents and
Approvals......................................21
Section 5.7 Agents or
Brokers...........................................22
Section 5.8
Deposits....................................................22
Section 5.9 Books and
Records...........................................22
Section 5.10
Disclaimer.................................................22
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF
PURCHASER.................................22
Section 6.1 Corporate
Organization......................................22
Section 6.2
Authorization...............................................22
Section 6.3
Litigation..................................................23
Section 6.4
Non-Contravention...........................................23
Section 6.5 Consents and
Approvals......................................23
Section 6.6 Agents or
Brokers...........................................24
Section 6.7
Deposits....................................................24
Section 6.8 Absence of
Inducements......................................24
ARTICLE
VII
CONDITIONS TO
CLOSING.......................................................24
Section 7.1 Conditions to Obligations of All
Parties....................24
Section 7.2 Additional Conditions to
Obligations of Purchaser...........25
Section 7.3 Additional Conditions to
Obligations of Seller..............26
ARTICLE VIII
INDEMNIFICATION.............................................................27
Section 8.1 Seller's
Indemnification....................................27
Section 8.2 Purchaser's
Indemnification.................................27
ARTICLE IX
TERMINATION.................................................................28
Section 9.1 Events of
Termination.......................................28
Section 9.2
Exception...................................................28
Section 9.3 Effect of
Termination.......................................28
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ARTICLE X
MISCELLANEOUS............................................................29
Section 10.1
Expenses...................................................29
Section 10.2
Notices....................................................29
Section 10.3
Survival...................................................30
Section 10.4
Confidentiality............................................30
Section 10.5 Entire
Agreement...........................................33
Section 10.6
Modification...............................................33
Section 10.7
Waivers....................................................33
Section 10.8
Enforceability.............................................33
Section 10.9 Schedules, Exhibits and
Headings...........................33
Section 10.10 Successors and
Assigns....................................34
Section 10.11
Counterparts..............................................34
Section 10.12 Governing
Law.............................................34
Section 10.13 Public
Announcements......................................34
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PURCHASE AND ASSUMPTION AGREEMENT
This
PURCHASE AND ASSUMPTION AGREEMENT (the "Agreement") is made and
entered into as of February 22, 2005, by
and between ATLANTIC BANK OF NEW YORK
("Seller"), a New York commercial bank, and
THE FIRST NATIONAL BANK OF IPSWICH
("Purchaser"), a national bank.
W I T N E S S E T H:
WHEREAS,
Seller and Purchaser are engaged in the banking business in the
Commonwealth of Massachusetts, the deposit
accounts of Seller are insured by the
Bank Insurance Fund of the Federal Deposit
Insurance Corporation ("FDIC") and
the deposit accounts of Purchaser are
insured by the Bank Insurance Fund of the
FDIC; and
WHEREAS,
Seller operates a bank branch facility located at 33 State
Street, Boston, Massachusetts 02109
("Branch"); and
WHEREAS,
Seller desires to sell and transfer the deposit liabilities and
certain assets associated with the Branch
to Purchaser; and
WHEREAS,
the purchase and transfer of liabilities and assets as
contemplated hereby are subject to certain
regulatory approvals and notices.
NOW,
THEREFORE, in consideration of the premises, the mutual promises
and
covenants hereinafter set forth and other
good and valuable consideration the
receipt and sufficiency of which are hereby
acknowledged, Seller and Purchaser
agree as follows:
ARTICLE I
DEFINED TERMS
Section
1.1 Definitions.
For
purposes of this Agreement, the following terms shall have the
following meanings:
"Assets"
shall mean (a) all of Seller's rights, title and interest in
and
to the Contracts and Safe Deposit Business;
(b) Cash on Hand; (c) the Personal
Property; and (d) the Loans.
"Assignment and Assumption Agreement" shall mean the Assignment
and
Assumption Agreement in the form attached
hereto as Exhibit A.
"Branch
Employees" shall have the meaning as set forth in Section
3.13(b)
hereof.
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"Business
Day" shall mean shall mean a Monday, Tuesday, Wednesday,
Thursday and Friday that is not a day on
which banking institutions in
Massachusetts are generally authorized or
obligated by law or executive order to
close.
"Cash on
Hand" shall mean all cash on hand at the Branch, as of the
Effective Time, including vault cash, ATM
cash, petty cash and teller's cash.
"Closing"
shall mean the completion of the assumption of the Deposits as
provided for hereunder writing. The Closing
shall take place at Craig and
Macauley Professional Corporation, Federal
Reserve Plaza, 600 Atlantic Avenue,
Boston, MA at 10:00 a.m. at such place and
time as the parties may mutually
agree in writing.
"Closing
Date" shall mean the date on which the Closing shall occur,
which
shall be the earliest practicable date
after the date on which all conditions
set forth in this Agreement shall have been
satisfied or shall have been waived
and all applicable waiting periods shall
have expired, or such other date as the
parties may agree in writing.
"Contracts" shall mean the agreements, contracts, leases and
other
instruments made by or with respect to the
operation of the Branch that
Purchaser elects to assume hereunder in
accordance with Section 3.9 hereof.
"Contract
Liabilities" shall mean any and all liabilities of Seller
arising on or after the Effective Time
under any of the Contracts set forth in
Schedule 1.1(a).
"Deposits"
shall mean those deposit liabilities on the books of the
Branch, as determined in accordance with
the customary practice of the Seller,
as of the Effective Time, which are defined
as deposits in Section (3)(l) of the
Federal Deposit Insurance Act, 12 U.S.C.
ss.1813(l), and including all IRA
Accounts for which (a) Seller serves as
trustee or custodian and (b) the assets
of which consist solely of deposits, any
collected and uncollected deposits
associated therewith together with all
interest accrued, credited or paid
thereon up to and including the Effective
Time hereto. The Deposits as of the
date of this Agreement are more
particularly described in Schedule 1.1 (b)
attached hereto.
"Effective
Time" shall mean 6:01 p.m. on the Closing Date.
"Federal
Funds Rate" shall mean, for the period involved, the average of
the interest rates for each day of the
period set forth in H.15 (519) opposite
the caption "Federal Funds (Effective)."
H.15 (519) means the weekly statistical
release designated as such, or any
successor publication, published by the Board
of Governors of the Federal Reserve
System.
"IRA
Account" shall mean an Individual Retirement Account, as such term
is
defined in the Internal Revenue Code, for
which Seller serves as trustee or
custodian, the assets of which consist
solely of deposit liabilities of the
Seller.
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"Liabilities" shall mean the aggregate of the Deposits, the
Contract
Liabilities and all obligations of Seller
arising on or after the Effective Time
with respect to the Safe Deposit
Business.
"Loan
Purchase Agreement" shall mean the Loan Purchase Agreement in
the
form attached hereto as Exhibit B.
"Personal
Property" shall mean all furniture and equipment owned or
leased
by Seller and located at the Branch as of
the Effective Time, including, without
limitation, furniture, office machinery,
shelving, office supplies and other
personal property, but excluding computer
equipment, attached or appurtenant to
the Branch and used for or usable in the
occupancy or operation of the Branch.
The Personal Property as of the close of
business on the Business Day
immediately prior to the date hereof is
listed on Schedule 1.1 (c) attached
hereto, which shall be updated by Seller as
of a date no more than five (5)
calendar days prior to the Closing Date.
The term "Personal Property" shall not
include the existing Seller signage located
at the Branch.
"Regulatory Approval Date" shall mean the date on which all
regulatory
approvals necessary for Seller and
Purchaser to consummate the transactions
contemplated by this Agreement have been
obtained.
"REIT Loan
Purchase Agreement" shall mean the REIT Loan Purchase Agreement
in the form attached hereto as Exhibit
C.
"Safe
Deposit Boxes" shall mean all safe deposit boxes owned by Seller
as
of the Closing Date located at the Branch,
including any removable safe deposit
boxes and safe deposit stacks in the vaults
at the Branch, all right and benefit
of Seller accrued as of the Closing Date
under the rental agreements with
respect to the safe deposit boxes located
at the Branch and all keys and
combinations thereto. The Safe Deposit
Boxes owned or leased by Seller as of the
close of business on the Business Day
immediately prior to the date hereof are
listed on Schedule 1.1 (d) attached hereto,
which shall be updated by Seller as
of a date no more than five (5) calendar
days prior to the Closing Date.
"Safe
Deposit Business" shall mean all right, title, and interest in
and
to the safe deposit business conducted by
Seller at the Branch, including but
not limited to, the physical assets of the
Safe Deposit Boxes located in the
vaults at the Branch, 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 located at or
related to the Branch.
"Settlement Date" shall have meaning set forth in Section 2.6(c) of
this
Agreement.
Capitalized terms not defined herein shall have the meanings
defined in
the Loan Purchase Agreement or the REIT
Loan Purchase Agreement, whichever is
applicable.
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ARTICLE II
TERMS OF ASSIGNMENT AND ASSUMPTION AND PURCHASE
Section
2.1 Transfer of Assets. At the Closing, subject to the terms
and
conditions set forth herein, Seller will
sell, convey, assign and transfer to
Purchaser and Purchaser shall purchase from
Seller, at the price and upon the
terms and conditions set forth in this
Agreement, all of Seller's right, title
and interest, as of the Effective Time, in
and to the Assets free and clear of
all liens and encumbrances.
Section
2.2 Assignment and Assumption of Liabilities. Except as
otherwise
provided in this Agreement, on the Closing
Date, Purchaser shall assume and
undertake to pay, perform, fulfill and
discharge the Liabilities as shown on the
books and records of the Branch as of the
Effective Time, in accordance with the
terms and conditions of the Liabilities in
effect at the Effective Time.
Notwithstanding the foregoing, nothing
contained herein shall prevent Purchaser
from changing the terms and conditions of
the Liabilities after the Effective
Time, subject to applicable laws and
regulations. In addition, nothing contained
herein shall be construed as creating any
rights or remedies against Purchaser
by third parties other than with respect to
those Liabilities expressly assumed
hereunder.
Section
2.3 Consideration to Seller. As consideration for the purchase
of
Assets and the assumption of Liabilities,
Purchaser shall pay to Seller, as
provided in Section 2.5 hereof:
(a) an amount equal to eight percent (8.0%) of the balance of
Deposits assumed by the Purchaser,
including accrued and unpaid interest
thereon, as of the Effective Time (the
"Premium Amount") Date;
(b) the Cash On Hand (the "Cash Amount");
(c) the value of the Personal Property on the books of the Seller
as
of the Closing Date ("Book Value of
Personal Property"); and
(d) an amount equal to the Loan Amount.
(e) The sum of the Premium Amount, the Cash Amount, the Book
Value
of Personal Property and the Loan Amount
shall hereinafter be referred to
collectively as the "Purchaser Payment
Amount."
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Section
2.4 Consideration to Purchaser. As consideration for
Purchaser's
assumption of the Liabilities, Seller shall
pay to Purchaser an amount equal to
the amount of the Deposits as of the
Closing Date, including accrued but unpaid
interest thereon. Seller shall pay or
credit to the appropriate customer
account, as of the Effective Time, all
interest accrued on the Deposits up to
the Effective Time.
Section
2.5 Payment and Timing.
(a) Consideration to Purchaser.
(i) On the Closing Date, Seller shall deliver to Purchaser by
wire transfer, and to such account as may be specified by
Purchaser,
an amount equal to the Deposits as of the close of business on
the
Business Day immediately prior to the Closing Date, including
accrued, but unpaid interest on such Deposits.
(ii) On the Business Day immediately following the Closing
Date, Seller shall deliver to Purchaser by wire transfer, and
to
such account as may be specified by Purchaser, an amount equal
to
the Deposits as of the close of business on the Closing Date,
including accrued, but unpaid interest on such Deposits, less
the
amount paid pursuant to Section 2.5(a)(i).
(iii) If the amount of the payments made to Seller pursuant to
Section 2.5(b)(i) exceeds the amount payable to Seller pursuant
to
Section 2.5(b)(ii), then on the Business Day immediately
following
the Closing Date, Seller shall pay to Purchaser the difference
between such amounts, by wire transfer, and to such account as
may
be specified by Purchaser.
(b)
Consideration to Seller.
(i) On the Closing Date, Purchaser shall deliver to Seller by
wire transfer, and to such account as may be specified by Seller,
an
amount equal to the sum of:
(a) seventy-five
percent (75%) of the Premium Amount
(the "Paid Premium Amount") as calculated as of
the close of business on the Business Day
immediately prior to the Closing Date, subject to
adjustment as set forth in Section 2.6;
(b) the Cash
Amount as calculated as of the close of
business on the Business Day immediately prior to
the Closing
Date;
(c) the Book
Value of Personal Property as calculated
as of the close of business on the Business Day
immediately prior to the Closing Date; and
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(d) the Loan
Amount as calculated as of the close of
business on the date of the Loan Schedule.
(ii) On the Business Day immediately following the Closing
Date, Purchaser shall deliver to Seller by wire transfer, and
to
such account as may be specified by Seller, the amount provided
for
in Section 2.5(b)(i) as calculated as of the close of business
on
the Closing Date, less the amount paid pursuant to Section
2.5(b)(i).
(iii) If the amount of the payments made to Purchaser pursuant
to Section 2.5(a)(i) exceeds the amount payable to Purchaser
pursuant
to Section 2.5(a)(ii), then on the Business Day immediately
following the Closing Date, Purchaser shall pay to Seller the
difference between such amounts, by wire transfer, and to such
account as may be specified by Seller.
(c) Accrual of Interest. If the Closing Date is a Friday, Seller
and
Purchaser agree that interest on
certificates of deposit as calculated by
Metavante for the Closing Date and the two
(2) calendar days immediately
following the Closing Date will accrue to
Purchaser, provided that Purchaser
shall reimburse Seller for one-third of
such accrued interest on the Business
Day immediately following the Closing
Date.
(d) Seller and Purchaser may agree to an arrangement whereby
Seller
shall deliver to Purchaser an amount equal
to the difference between the amount
to be delivered by Seller under Section
2.5(a) and the amount to be delivered by
Purchaser under Section 2.5(b).
Section
2.6 Post Closing Adjustment.
(a) Within one hundred five (105) calendar days after the
Closing
Date, Purchaser shall deliver to Seller a
written report, certified by
Purchaser, which report shall set forth the
Deposits assumed by Purchaser that
remain with Purchaser as of the close of
business on the date that is ninety
(90) calendar days after the Closing Date
(the "Updated Deposit Payment Amount")
and the adjusted Premium Amount based on
the Updated Deposit Payment Amount,
calculated as eight percent (8.0%) of the
Updated Deposit Payment Amount (the
"Updated Premium Amount"), which Updated
Premium Amount shall not be less than
$1,250,000.
(b) Seller shall have a period of ten (10) Business Days
following
receipt of Purchaser's report described in
Section 2.6 hereof to examine such
report and Purchaser shall cooperate with
Seller, its employees, representatives
and agents in their examination of such
report.
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(c) The Business Day immediately following the conclusion of
the
tenth (10th) Business Day period set forth
in Section 2.6 hereof shall be called
the "Settlement Date." On the Settlement
Date the following settlements shall be
made:
(i) in the event that the Updated Premium Amount exceeds the
Paid Premium Amount, Purchaser shall pay to Seller, by wire
transfer
and to such account as may be specified by Seller, an amount
equal
to (x) the difference obtained by subtracting the Paid Premium
Amount
from the Updated Premium Amount plus (y) the interest on such
difference for the number of calendar days from and including
the
Closing Date to but excluding the Settlement Date (the
"Interest
Period") at the Federal Funds Rate; and
(ii) in the event that the Paid Premium Amount exceeds the
Updated Premium Amount, Seller shall pay to Purchaser, by wire
transfer and to such account as may be specified by Purchaser,
an
amount equal to (x) the difference obtained by subtracting the
Updated Premium Amount from the Paid Premium Amount plus (y)
the
interest on such difference for the Interest Period at the
Federal
Funds Rate.
(d) Resolution of Disputed Payment Amount. Seller and Purchaser
agree that if they fail to reach agreement
as to the calculation of any of the
payments set forth in this Section 2.6, the
matter shall be referred 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 any such matter referred to it
for settlement. Purchaser and Seller agree
to share equally the fees and charges
of such firm for services rendered by it in
resolving the disputed matters
referred to it by the parties hereto.
(e) Post-Closing Adjustment. All post-closing adjustments
required
by Section 2.6 of this Agreement shall take
into account payments made by
Purchaser to Seller and by Seller to
Purchaser on both the Closing Date and the
Business Day immediately following the
Closing Date.
ARTICLE III
COVENANTS
Section
3.1 Settlement Operations after Closing. Seller and Purchaser
hereby agree that, for sixty (60) days
after the Closing Date, or such longer
period to which Purchaser and Seller may
agree:
(a) Seller shall remit to Purchaser all payments received by
Seller
intended for deposit to accounts which are
Deposits.
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(b) Seller shall cooperate with Purchaser and take all
reasonable
steps required by Purchaser to ensure that,
with respect to checks or drafts
drawn against accounts that are Deposits,
each such item that is coded for
presentment to Seller or to any bank for
the account of Seller is available for
delivery to Purchaser's messenger at such
time and place that the parties hereto
shall agree for purposes of reconciling
Purchaser's "midnight deadline" with
respect to such item, as provided in
Sections 4-104(a)(10) and 4-202(2) of the
Massachusetts Uniform Commercial Code, or
any shorter period for determining
when return of an item is no longer timely
under any applicable clearing house
rule or agreement, it being understood that
Seller shall be under no obligation
with respect to any such items after their
delivery, if the items are timely
delivered in the agreed upon manner.
Purchaser and Seller hereby acknowledge
that time is of the essence with respect to
the foregoing.
(c) Seller shall remit to Purchaser electronic funds transfer
deposits and deposits made through
automated clearing house transactions made
after the Effective Time with respect to
accounts allocated to the Branch.
Promptly following the Closing, Seller and
Purchaser shall cooperate to obtain
all consents necessary to enable electronic
funds transfer deposits and
automated clearing house transactions with
respect to the Deposits to be made
directly to Purchaser.
(d) To the extent permitted by law and the applicable Deposit
contracts, Purchaser agrees that it will
honor all properly drawn checks,
drafts, withdrawal orders and similar items
drawn on the checks, drafts or
withdrawal forms of Seller by Seller's
depositors whose deposits are assumed by
Purchaser and that are timely presented to
Purchaser by mail, or over its
counters or through clearing houses, and,
if applicable, to reimburse Seller in
full should Seller make payment on any such
check or draft to the extent funds
are available. Purchaser further agrees
that it will in all other respects
discharge, in the ordinary course of
business, the duties and the obligations of
Seller with respect to balances due and
owing to the depositors whose deposits
are assumed by Purchaser.
Section
3.2 Items in Transit. Purchaser shall obtain the benefit of all
items relating to or originating from the
Branch that are in transit as of the
Effective Time and are handled in
accordance with Seller's usual and customary
practices and procedures. If any item
relating to or originating from the Branch
is in transit as of the Effective Time and
is returned to Purchaser, Purchaser
shall use its best efforts to collect such
returned item and charge the same
back to the applicable Deposit account;
however, if the item to be charged back
to the Deposit account to which it relates
would result in a negative balance in
such account, Purchaser shall not charge
back such item but shall promptly
return it to Seller, and Seller shall
promptly reimburse Purchaser for the
amount of any item so returned less the
available balance in the account.
Section
3.3 Stop Payment Items. Purchaser agrees to honor all stop
payment
orders relating to the deposit accounts
being assumed that have been initiated
prior to the Closing Date and reflected in
stop payment documents or computer
records delivered to Purchaser on the
Closing Date or immediately thereafter. In
the event that Purchaser shall make any
payment in violation of a stop payment
order initiated prior to the Closing Date,
but not reflected in stop payment
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documents or computer records delivered to
Purchaser by Seller prior to such
payment, Seller shall indemnify, hold
harmless and defend Purchaser from and
against all claims, losses and liabilities,
including reasonable attorneys' fees
and expenses, arising out of any such
payment. However, if following receipt of
appropriate stop payment order
documentation, Purchaser makes any payment in
violation of any such order, Purchaser
shall be liable for such payment and
shall indemnify, hold harmless and defend
Seller from and against all claims,
losses and liabilities, including
reasonable attorneys' fees and expenses,
arising out of such payment.
Section
3.4 Unreconciled Passbook Accounts. A list of Seller's
unreconciled passbook accounts is attached
hereto as Schedule 1.1(e) (the
"Unreconciled Passbook Accounts"). Seller
confirms and agrees that it shall be
solely responsible to any customer whose
Unreconciled Passbook Account is
transferred to Purchaser to the extent, if
any, that the obligations of Seller
to such customer with respect to such
Unreconciled Passbook Account at the
Effective Time exceeded the amounts for
such Unreconciled Passbook Account set
forth in Schedule 1.1(e) hereto regardless
of when Seller and Purchaser receive
notice of such claim, but only to the
extent that Seller would have been
responsible for such amount under
applicable law, taking into account any
statute of limitations or similar law or
regulation, as if Seller had not
entered into this Agreement. Seller
confirms and agrees that any claim related
to an Unreconciled Passbook Account made by
a customer against Purchaser for an
amount which as of the Effective Time
exceeded that on Schedule 1.1(e) for such
Unreconciled Passbook Account shall be
indemnified by Seller pursuant to the
provisions of Section 8.1 this
Agreement.
Section
3.5 Books and Records.
(a) Transfer of Books and Records. To the extent permitted by
applicable law, Seller shall transfer and
deliver to Purchaser (i) on the
Closing Date, all of the records of Seller
pertaining to the Deposits and (ii)
on the Closing Date, or as soon as
practicable thereafter, all of the records of
Seller in its possession that are
reasonably capable of transfer pertaining to
the Deposits. The records to be transferred
hereunder shall include but are not
limited to signature cards, Deposit
agreements, all records relating to trustee
process, liens, levies (tax or otherwise),
and subpoenas or suspicious activity
reports generated pursuant to Bank Secrecy
Act and/or USA PATRIOT Act
requirements, documents relating to ongoing
or threatened litigation relating to
any Deposits and other Deposit records.
(b) Retention of Copies. Seller shall make available for
inspection
by the Purchaser, for a period of three (3)
years following the Closing Date,
any books and records, or copies thereof,
pertaining to the Deposits, and
Purchaser may, at its own expense, make
such copies of and excerpts from such
books and records as it may deem desirable;
provided, that nothing contained
herein shall require Seller to maintain
such books and records longer than the
period required by law, unless (i) any
actual action has been brought prior to
the end of the one year period, then Seller
shall maintain such books and
records until the action is disposed of
without further appeal, or (ii) the
parties shall agree upon a longer period;
provided further, that Purchaser and
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Seller shall not have a right of
examination of any books, records or
documentation or copies thereof pertaining
to transactions that occur after the
Closing Date; provided further, however,
that Seller shall provide to Purchaser
copies of all passbook records within
fifteen (15) Business Days following the
date of this Agreement, which records shall
be updated no more than two (2)
Business Days prior to the Closing Date;
and provided further, however, that in
the event that as of the end of such
period, any tax year of either party is
open to examination by any taxing
authority, such books and records pertaining
to the Assets purchased shall be maintained
by the other party until a final
disposition of the tax liability of such
party for that year has been finally
determined. Each party agrees to notify the
other party upon written request of
any open tax years at the end of such
period.
Section
3.6 Data Processing.
(a) Tapes and Trial Balances. Seller has provided Purchaser with
a
trial balance tape or Excel spreadsheet
with corresponding paper trial balance
as of September 30, 2004 with respect to
each of the Loans to be purchased by
Purchaser and each of the Deposits to be
assumed by Purchaser, together with the
additional documents available to Seller
which Purchaser shall reasonably
request. Beginning December 31, 2004,
within ten (10) Business Days after the
end of each month thereafter, or as soon
thereafter as is practicable, Seller
shall provide Purchaser with a schedule of
month end balances with respect to
each of the types of loans to be purchased
by Purchaser and deposit accounts to
be assumed by Purchaser, together with the
additional documents available to
Seller that Purchaser shall reasonably
request. Seller shall also provide
Purchaser with a trial balance tape with
corresponding paper trial balance as of
the Closing Date with respect to each of
the Loans to be purchased by Purchaser
and each of the Deposits to be assumed by
Purchaser.
(b) Transfer of Information. Purchaser and Seller shall
cooperate
with each other, and shall cause their
service bureaus to cause the transfer, as
of the Effective Time on the Closing Date,
or as soon as practicable thereafter,
of all information and records relating to
the Deposits from Seller's computer
system to Purchaser's computer system.
(c) Data Processing Conversion. Purchaser and Seller shall use,
and
shall cause their service bureaus to use,
all commercially reasonable efforts to
ensure that any data processing system
conversion to be undertaken in connection
with the Branch will be completed on the
Closing Date.
Section
3.7 Regulatory Approvals. Promptly following the date hereof,
Purchaser shall apply to the Office of the
Comptroller of the Currency and any
other applicable regulatory agency for
approval to assume the Deposits and
purchase the assets, including without
limitation, the Loans and the Premises.
Purchaser and Seller shall each use its
commercially reasonable efforts to
obtain such approvals. Purchaser and Seller
shall cooperate with each other in
the preparation of all applications
required to be filed, with any other
applicable regulatory agency and Purchaser
and Seller shall further cooperate
with each other to obtain the approval of,
or to provide notice to, such
regulatory agencies and all other
regulatory or other approvals, consents and
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permissions necessary to consummate the
transactions contemplated hereby. Seller
shall provide to Purchaser or to the
appropriate regulatory authorities all
information required to be submitted by
Seller in connection with obtaining such
approval, or providing such notice to, such
regulatory agencies. Purchaser and
Seller shall provide one another with
copies of all applications and amendments
thereto submitted pursuant to this Section
3.7; provided that any provisions in
such application deemed to be confidential
may be omitted from such copies.
Seller agrees to approve, execute and
deliver any other documents or materials,
including any amendment to this Agreement
that may be reasonably requested by
Purchaser if a modification of the
structure of the proposed transaction is
reasonably deemed necessary or appropriate
by Purchaser; provided, that any such
modification does not adversely affect the
economic benefit of the transaction
to Seller, does not adversely affect the
timing or delay the consummation of the
proposed transaction in any material
respect, or does not otherwise reduce the
likelihood of the consummation of the
transaction in any material respect.
Section
3.8 IRAs. Within such period prior to the Closing Date as is
required by applicable law, regulation or
contractual obligation, Seller shall,
at Seller's cost and expense and in
accordance with the applicable customer
agreement, resign as trustee or custodian
from, and appoint Purchaser as
successor trustee or custodian for, each
IRA for which (a) Seller serves as
trustee or custodian, and (b) the assets
consist solely of Deposits. Seller
shall, at Purchaser's cost and expense, use
its best efforts to provide notice
to each customer of the appointment of
Purchaser as successor trustee or
custodian for each such IRA, and to request
that such customer either consent to
Purchaser's appointment as successor IRA
trustee or custodian or, within ninety
(90) days of such notice, transfer the IRA
or appoint a different successor
trustee or custodian. A form of such notice
is attached to this Agreement as
Exhibit D. Seller shall in any event take
all necessary action to ensure that
the IRAs will be transferred to Purchaser
on the Closing Date. If any customer
objects to the transfer of an IRA, such IRA
shall not be transferred to the
Purchaser, and shall not be considered to
be a Deposit hereunder.
Section
3.9 Contracts.
(a) Seller has delivered to Purchaser true, complete and
accurate
copies of each of the contracts set forth
in Schedule 1.1(a) attached hereto.
Purchaser shall provide Seller with a
schedule setting forth the Contracts (the
"Contract Schedule"), within ten (10)
Business Days after the date of this
Agreement. Purchaser may by written notice
to Seller prior to the Closing Date
exclude from the Contract Schedule any
Contracts that require the consent of a
third party in order to be assigned to
Purchaser, if, in each case, consent has
not been obtained fifteen (15) calendar
days prior to the Closing Date. An
updated Contract Schedule shall be
delivered by Purchaser to Seller no more than
five (5) Business Days prior to the Closing
Date.
(b) In connection with the transfer and assignment of the
Contracts
to Purchaser, Seller shall, to the extent
permitted by the applicable Contracts,
obtain all consents of third parties other
than regulatory agencies necessary to
consummate the transactions contemplated
hereunder or to prevent a breach or
default under any such Contracts. If Seller
is unable to obtain a required
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consent under any Contract, Seller shall
cooperate with Purchaser to obtain for
Purchaser, at Seller's cost, the benefits
under such Contract, including
enforcement of any and all rights of Seller
against the other party or parties
thereto.
Section
3.10 Change of Name and Notice to Customers.
(a) Notification of Deposit Transfer. Promptly after regulatory
approval has been granted, Seller shall,
and Purchaser at its option may, notify
all customers of the Branch of the
transactions contemplated hereby; provided,
that no such notice shall be given unless
the other party shall consent to the
text of such notice prior to its release,
which consent shall not be
unreasonably withheld; provided further,
that Purchaser may not mail to
customers any replacement checkbooks,
passbooks or other similar materials
sooner than fifteen (15) days prior to the
Closing Date. Nothing contained
herein shall prevent Seller from giving
notice to customers prior to the time
referenced in this Section 3.10(a);
provided, that no such notice shall be given
unless Purchaser shall consent to the text
of such notice prior to its release,
which consent shall not be unreasonably
withheld.
(b) Change of Name on Documents. Purchaser shall take the
following
actions with respect to changing the name
on the documents pertaining to the
Branch:
(i) within fifteen (15) Business Days after the Closing Date,
notify all persons who are customers of the Branch on th
