Common use of Material Contracts; Leases; Defaults Clause in Contracts

Material Contracts; Leases; Defaults. 4.9.1 Except as set forth in Commerce Disclosure Schedule 4.9.1, neither Commerce nor any Commerce Subsidiary is a party to or subject to: (i) any employment, consulting or severance contract or arrangement with any past or present officer, director, employee or consultant of Commerce or any Commerce Subsidiary, except for “at will” arrangements; (ii) any plan, arrangement or contract providing for bonuses, pensions, options, deferred compensation, retirement payments, profit sharing or similar arrangements for or with any past or present officers, directors, employees or consultants of Commerce or any Commerce Subsidiary; (iii) any collective bargaining agreement with any labor union relating to employees of Commerce or any Commerce Subsidiary; (iv) any agreement which by its terms limits or affects the payment of dividends by Commerce or any Commerce Subsidiary; (v) any instrument evidencing or related to indebtedness for borrowed money in excess of $100,000, whether directly or indirectly, by way of purchase money obligation, conditional sale, lease purchase, guaranty or otherwise, in respect of which Commerce or any Commerce Subsidiary is an obligor to any Person, which instrument evidences or relates to indebtedness other than deposits, FHLB advances with a term to maturity not in excess of one (1) year, repurchase agreements, bankers’ acceptances, and transactions in “federal funds” or which contains financial covenants or other non-customary restrictions (other than those relating to the payment of principal and interest when due) which would be applicable on or after the Closing Date to Commerce or any Commerce Subsidiary; (vi) any other agreement, written or oral, which is not terminable without cause on sixty (60) days’ notice or less without penalty or payment, or that obligates Commerce or any Commerce Subsidiary for the payment of more than $60,000 annually or for the payment of more than $100,000 over its remaining term; or (vii) any agreement (other than this Agreement), contract, arrangement, commitment or understanding (whether written or oral) that materially restricts or limits the conduct of business by Commerce or any Commerce Subsidiary.

Material Contracts; Leases; Defaults. 4.9.1 (a) Except as set forth in Commerce Disclosure Schedule 4.9.14.8(a), neither Commerce FNBPA nor any Commerce FNBPA Subsidiary is a party to or subject to: (i) any employment, consulting or severance contract or material arrangement with any past or present officer, director, director or employee or consultant of Commerce FNBPA or any Commerce FNBPA Subsidiary, except for “at will” arrangements; (ii) any plan, arrangement or contract providing for bonuses, pensions, options, deferred compensation, retirement payments, profit sharing or similar material arrangements for or with any past or present officers, directors, directors or employees or consultants of Commerce FNBPA or any Commerce FNBPA Subsidiary; (iii) any collective bargaining agreement with any labor union relating to employees of Commerce FNBPA or any Commerce FNBPA Subsidiary; (iv) any agreement which by its terms limits or affects the payment of dividends by Commerce FNBPA or any Commerce FNBPA Subsidiary; (v) any instrument evidencing or related to material indebtedness for borrowed money in excess of $100,000, whether directly or indirectly, by way of purchase money obligation, conditional sale, lease purchase, guaranty or otherwise, in respect of which Commerce FNBPA or any Commerce FNBPA Subsidiary is an obligor to any Personperson, which instrument evidences or relates to indebtedness other than deposits, FHLB advances with a term to maturity not in excess of one (1) year, repurchase agreements, FHLB advances, bankers’ acceptances, and “treasury tax and loan” accounts and transactions in “federal funds” in each case established in the ordinary course of business consistent with past practice, or which contains financial covenants or other non-customary restrictions (other than those relating to the payment of principal and interest when due) which that would be applicable on or after the Closing Date to Commerce or any Commerce SubsidiaryPerson; (vi) any other agreement, written or oral, which is not terminable without cause on sixty (60) days’ notice or less without penalty or payment, or that obligates Commerce FNBPA or any Commerce FNBPA Subsidiary for the payment of more than $60,000 10,000 annually or for the payment of more than $100,000 25,000 over its remaining term; , which is not terminable without cause on 60 days’ or less notice without penalty or payment (other than agreements for commercially available “off-the- shelf” software), or (vii) any agreement (other than this Agreement), contract, arrangement, commitment or understanding (whether written or oral) that materially restricts or limits in any material way the conduct of business by Commerce FNBPA or any Commerce SubsidiaryFNBPA Subsidiary (it being understood that any non-compete or similar provision shall be deemed material, but any limitation on the scope of any license granted under any such agreement shall not be deemed material).

Material Contracts; Leases; Defaults. 4.9.1 (a) Except as set forth in Commerce Mid Penn Disclosure Schedule 4.9.15.7(a), neither Commerce Mid Penn nor any Commerce Mid Penn Subsidiary is a party to or subject to: (i) any employment, consulting or severance contract or material arrangement with any past or present officer, director, director or employee or consultant of Commerce Mid Penn or any Commerce Mid Penn Subsidiary, except for “at will” arrangements; (ii) any plan, arrangement or contract providing for bonuses, pensions, options, deferred compensation, retirement payments, profit sharing or similar material arrangements for or with any past or present officers, directors, directors or employees or consultants of Commerce Mid Penn or any Commerce Mid Penn Subsidiary; (iii) any collective bargaining agreement with any labor union relating to employees of Commerce Mid Penn or any Commerce Mid Penn Subsidiary; (iv) any agreement which by its terms limits or affects the payment of dividends by Commerce Mid Penn or any Commerce Mid Penn Subsidiary; (v) any instrument evidencing or related to indebtedness for borrowed money in excess of $100,000, 250,000 whether directly or indirectly, by way of purchase money obligation, conditional sale, lease purchase, guaranty or otherwise, in respect of which Commerce Mid Penn or any Commerce Mid Penn Subsidiary is an obligor to any Personperson, which instrument evidences or relates to indebtedness other than deposits, FHLB advances with a term to maturity not in excess of one (1) year, repurchase agreements, FHLB advances, bankers’ acceptances, and “treasury tax and loan” accounts and transactions in “federal funds” in each case established in the ordinary course of business consistent with past practice, or which contains financial covenants or other non-customary restrictions (other than those relating to the payment of principal and interest when due) which that would be applicable on or after the Closing Date to Commerce or any Commerce SubsidiaryPerson; (vi) any other agreement, written or oral, which is not terminable without cause on sixty (60) days’ notice or less without penalty or payment, or that obligates Commerce Mid Penn or any Commerce Mid Penn Subsidiary for the payment of more than $60,000 150,000 annually or for the payment of more than $100,000 750,000 over its remaining term; , which is not terminable without cause on 60 days’ or less notice without penalty or payment (other than agreements for commercially available “off-the- shelf” software), or (vii) any agreement (other than this Agreement), contract, arrangement, commitment or understanding (whether written or oral) that materially restricts or limits in any material way the conduct of business by Commerce Mid Penn or any Commerce SubsidiaryMid Penn Subsidiary (it being understood that any non-compete or similar provision shall be deemed material, but any limitation on the scope of any license granted under any such agreement shall not be deemed material).

Material Contracts; Leases; Defaults. 4.9.1 Except as set forth in Commerce 1st Pacific Bancorp Disclosure Schedule 4.9.1, neither Commerce 1st Pacific Bancorp nor any Commerce Subsidiary 1st Pacific Bank is a party to or subject to: (i) any employment, consulting or severance contract or material arrangement with any past or present officer, director, director or employee of 1st Pacific Bancorp or consultant of Commerce or any Commerce Subsidiary1st Pacific Bank, except for “at will” arrangements; (ii) any plan, material arrangement or contract providing for bonuses, pensions, options, deferred compensation, retirement payments, profit sharing or similar material arrangements for or with any past or present officers, directors, directors or employees of 1st Pacific Bancorp or consultants of Commerce or any Commerce Subsidiary1st Pacific Bank; (iii) any collective bargaining agreement with any labor union relating to employees of Commerce 1st Pacific Bancorp or any Commerce Subsidiary1st Pacific Bank; (iv) any agreement which by its terms limits or affects the payment of dividends by Commerce 1st Pacific Bancorp or any Commerce Subsidiary1st Pacific Bank; (v) any instrument evidencing or related to material indebtedness for borrowed money in excess of $100,000, whether directly or indirectly, by way of purchase money obligation, conditional sale, lease purchase, guaranty or otherwise, in respect of which Commerce 1st Pacific Bancorp or any Commerce Subsidiary 1st Pacific Bank is an obligor to any Personperson, which instrument evidences or relates to indebtedness other than deposits, FHLB advances with a term to maturity not in excess of one (1) year, repurchase agreements, the Federal Reserve Bank advances, bankers’ acceptances, and “treasury tax and loan” accounts and transactions in “federal funds” in each case established in the ordinary course of business consistent with past practice, or which contains financial covenants or other non-customary restrictions (other than those relating to the payment of principal and interest when due) which would be applicable on or after the Closing Date to Commerce FB Bancorp or any Commerce SubsidiaryFirst Business Bank; (vi) except for items listed on 1st Pacific Bancorp Disclosure Schedule 4.16 and loans and other extensions of credit made by 1st Pacific Bank in the ordinary course of its business, any other agreement, written or oral, which is not terminable without cause on sixty (60) days’ notice or less without penalty or payment, or that obligates Commerce 1st Pacific Bancorp or any Commerce Subsidiary 1st Pacific Bank for the payment of more than $60,000 100,000 annually or for the payment of more than $100,000 50,000 over its remaining term; , which is not terminable without cause on 60 days’ or less notice without penalty or payment, or (vii) any agreement (other than this Agreement), contract, arrangement, commitment or understanding (whether written or oral) that materially restricts or limits in any material way the conduct of business by Commerce 1st Pacific Bancorp or 1st Pacific Bank (it being understood that any Commerce Subsidiarynon-compete or similar provision shall be deemed material).

Material Contracts; Leases; Defaults. 4.9.1 4.9.1. Except as set forth in Commerce Disclosure Schedule PENNFED DISCLOSURE SCHEDULE 4.9.1, neither Commerce PennFed nor any Commerce PennFed Subsidiary is a party to or subject to: (i) any employment, consulting or severance contract or material arrangement with any past or present officer, director, director or employee or consultant of Commerce PennFed or any Commerce PennFed Subsidiary, except for “at will” arrangements; (ii) any plan, material arrangement or contract providing for bonuses, pensions, options, deferred compensation, retirement payments, profit sharing or similar material arrangements for or with any past or present officers, directors, directors or employees or consultants of Commerce PennFed or any Commerce PennFed Subsidiary; (iii) any collective bargaining agreement with any labor union relating to employees of Commerce PennFed or any Commerce PennFed Subsidiary; (iv) any agreement which by its terms limits or affects the payment of dividends by Commerce PennFed or any Commerce PennFed Subsidiary; (v) any instrument evidencing or related to material indebtedness for borrowed money in excess of $100,000, whether directly or indirectly, by way of purchase money obligation, conditional sale, lease purchase, guaranty or otherwise, in respect of which Commerce PennFed or any Commerce PennFed Subsidiary is an obligor to any Person, which instrument evidences or relates to indebtedness other than deposits, FHLB advances with a term to maturity not in excess of one (1) year, repurchase agreements, FHLB advances, bankers’ acceptances, and “treasury tax and loan” accounts and transactions in “federal funds” in each case established in the ordinary course of business consistent with past practice, or which contains financial covenants or other non-customary material restrictions (other than prepayment penalties and those relating to the payment of principal and interest when due) which would be applicable on or after the Closing Date to Commerce NYB or any Commerce NYB Subsidiary; (vi) any other agreementagreement with a vendor of products or services, written or oral, which is not terminable without cause on sixty (60) days’ notice or less without penalty or payment, or that obligates Commerce PennFed or any Commerce PennFed Subsidiary for the payment of more than $60,000 50,000 annually or for the payment of more than $100,000 200,000 over its remaining term; , which is not terminable without cause on 60 days’ or less notice without penalty or premium, or (vii) any agreement (other than this Agreement), contract, arrangement, commitment or understanding (whether written or oral) that materially restricts or limits in any material way the conduct of business by Commerce PennFed or any Commerce SubsidiaryPennFed Subsidiary (it being understood that any non-compete or similar provision shall be deemed material).

Material Contracts; Leases; Defaults. 4.9.1 (a) Except as set forth in Commerce FS Bancorp Disclosure Schedule 4.9.13.08(a), neither Commerce FS Bancorp nor any Commerce FS Bancorp Subsidiary is a party to or subject to: (i) any employment, consulting or severance contract or arrangement with any past or present officer, director, employee or consultant of Commerce or any Commerce Subsidiary, except for “at will” arrangements; (ii) any plan, arrangement or contract providing for bonuses, pensions, options, deferred compensation, retirement payments, profit sharing or similar arrangements for or with any past or present officers, directors, employees or consultants of Commerce or any Commerce Subsidiary; (iii) any collective bargaining agreement with any labor union relating to employees of Commerce or any Commerce Subsidiary; (iv) any agreement which by its terms limits or affects the payment of dividends by Commerce FS Bancorp or any Commerce FS Bancorp Subsidiary; (vii) any instrument evidencing or related to indebtedness for borrowed money in excess of $100,000, whether directly or indirectly, by way of purchase money obligation, conditional sale, lease purchase, guaranty or otherwise, in respect of which Commerce FS Bancorp or any Commerce FS Bancorp Subsidiary is an obligor to any Personperson, which instrument evidences or relates to such indebtedness other than deposits, FHLB advances with a term to maturity not in excess of one (1) year, repurchase agreements, FHLB advances, bankers’ acceptances, and “treasury tax and loan” accounts and transactions in “federal funds” in each case established in the ordinary course of business consistent with past practice, or which contains financial covenants or other non-customary restrictions (other than those relating to the payment of principal and interest when due) which would be applicable on or after the Closing Date to Commerce ESSA Bancorp or any Commerce ESSA Bancorp Subsidiary; (viiii) any other agreement, written or oral, which is not terminable without cause on sixty (60) days’ notice or less without penalty or payment, or that obligates Commerce FS Bancorp or any Commerce FS Bancorp Subsidiary for the payment of more than $60,000 10,000 annually or for the payment of more than $100,000 25,000 over its remaining term; , which is not terminable without cause on 60 days’ or less notice without penalty or payment (other than agreements for commercially available “off-the- shelf” software), or (viiiv) any agreement (other than this Agreement), contract, arrangement, commitment or understanding (whether written or oral) that materially restricts or limits in any material way the conduct of business by Commerce FS Bancorp or any Commerce SubsidiaryFS Bancorp Subsidiary (it being understood that any non-compete or similar provision shall be deemed material, but any limitation on the scope of any license granted under any such agreement shall not be deemed material).

Material Contracts; Leases; Defaults. 4.9.1 4.8.1. Except as set forth in Commerce FKF Disclosure Schedule 4.9.14.8.1, neither Commerce FKF nor any Commerce FKF Subsidiary is a party to or subject to: (ia) any employment, consulting or severance contract, “change in control” or termination contract or arrangement with any past or present officer, director, employee or consultant independent contractor of Commerce FKF or any Commerce FKF Subsidiary, except for “at will” arrangements; (iib) any plan, arrangement or contract providing for bonuses, pensions, options, deferred compensation, retirement payments, profit sharing or similar arrangements for or with any past or present officers, directors, employees or consultants independent contractors of Commerce FKF or any Commerce FKF Subsidiary; (iiic) any collective bargaining agreement with any labor union relating to employees of Commerce FKF or any Commerce FKF Subsidiary; (ivd) any agreement which by its terms limits or affects the payment of dividends by Commerce FKF or any Commerce FKF Subsidiary; (ve) any instrument evidencing or related to indebtedness for borrowed money in excess of $100,000, whether directly or indirectly, by way of purchase money obligation, conditional sale, lease purchase, guaranty or otherwise, in respect of which Commerce FKF or any Commerce FKF Subsidiary is an obligor to any Personperson, which instrument evidences or relates to indebtedness other than deposits, FHLB advances with a term to maturity not in excess of one (1) year, repurchase agreements, FHLB advances, bankers’ acceptances, and “treasury tax and loan” accounts and transactions in “federal funds” in each case established in the ordinary course of business consistent with past practice, or which contains financial covenants or other non-customary restrictions (other than those relating to the payment of principal and interest when due) which would be applicable on or after the Closing Date to Commerce BMBC or any Commerce BMBC Subsidiary; (vif) any other agreement, written or oral, which is not terminable without cause on sixty (60) days’ notice or less without penalty or payment, or that obligates Commerce FKF or any Commerce FKF Subsidiary for the payment of more than $60,000 annually or for the payment of more than $100,000 50,000 over its remaining term; , which is not terminable without cause on 60 days or less notice without penalty or payment (viiother than agreements for commercially available “off-the-shelf” software), (g) any agreement (other than this Agreement), contract, arrangement, commitment or understanding (whether written or oral) that materially restricts or limits in any material way the conduct of business by Commerce FKF or any Commerce FKF Subsidiary; (h) any contract, plan or arrangement which provides for payments or benefits in certain circumstances which, together with other payments or benefits payable to any participant therein or party thereto, might render any portion of any such payments or benefits subject to disallowance of deduction therefor as a result of the application of Section 280G of the Code; (i) any lease for real property; (j) any contract or arrangement with any broker-dealer or investment adviser; (k) any investment advisory contract with any investment company registered under the Investment Company Act of 1940; (l) any contract or arrangement with, or membership in, any local clearing house or self-regulatory organization; or (m) any other material agreement.