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EXHIBIT 10.3
PURCHASE AND ASSUMPTION AGREEMENT
Purchase and Assumption Agreement dated as of March 24, 1998, between
Republic Bank, with executive offices at 000 0xx Xxxxxx X.X., Xxxxx 000, Xx.
Xxxxxxxxxx, Xxxxxxx 00000 ("Purchaser"), and The Dime Savings Bank of New York,
FSB, a federally-chartered savings bank with executive offices at 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Seller").
WITNESSETH:
WHEREAS, Seller operates a branch office located at 0000 Xxxxx Xxxxxxxx
Xxxxx, Xxxxxxxxx Xxxxx, Xxxxxxx 33442(the "Branch Office"); and
WHEREAS, Seller desires to sell and Purchaser desires to acquire and
operate the Branch Office, and in this regard, Seller desires to sell and
Purchaser desires to acquire certain assets relating thereto, including all
right, title, and interest of Seller in the real estate leased by Seller and
used in connection with the Branch Office, certain personal property used in the
operation of the Branch Office, and all passbook loans, if any, maintained at
the Branch Office, all as set forth in this Agreement upon the terms and
conditions set forth herein; and
WHEREAS, Seller desires to assign to Purchaser and Purchaser desires to
assume from Seller certain liabilities relating to the Branch Office, including
certain obligations and liabilities relating to the deposits of the Branch
Office maintained at the
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Branch Office, and certain other obligations of Seller relating to the Branch
Office or the maintenance and operation thereof, all as set forth in this
Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual promises
and covenants, representations, warranties and agreements herein contained, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
PURCHASE AND SALE OF ASSETS AND ASSIGNMENT AND ASSUMPTION OF LIABILITIES
Section 1.1 Purchase and Sale of Assets. Upon the terms and subject to the
conditions set forth in this Agreement, Seller shall sell, convey, assign,
transfer, and deliver to Purchaser, and Purchaser shall purchase and accept from
Seller, certain assets relating to the Branch Office, as follows:
(a) Real Property. Except to the extent covered by paragraph (b) of
this Section, all of Seller's interest in the land, buildings, and fixtures,
leasehold improvements, including security equipment pertaining to the Branch
Office pursuant to the terms and conditions of Assignment Agreement attached
hereto as Exhibit A (the "Real Property").
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(b) Personal Property. The personal property, including all furniture,
fixtures, leasehold improvements, and equipment not otherwise covered by
paragraph (a), associated with the Branch Office (the "Personal Property"). It
is understood that Purchaser will acquire the EDP equipment associated with the
Branch Office; and
(c) Loans. The passbook loans or account loans maintained at the Branch
Office which are outstanding as of the close of business on the Closing Date (as
hereinafter defined) on which any of the deposits being transferred hereunder
have been pledged as collateral (the "Loans"). No other loans maintained at the
Branch Office will be transferred; provided, however, that Purchaser may elect
to purchase and accept the overdraft checking credit lines and related balances
thereon maintained at the Branch Office. This election shall be made in writing
not later than thirty (30) days prior to the Closing. If Purchaser does not make
such election, Seller shall have the right to terminate any such agreements (and
to convert any balances then outstanding under such agreements to loans, on such
terms as Seller, in its sole discretion, may determine) or to transfer any such
agreements and any related deposit accounts from the Branch Office to any other
branches of Seller. All Loans shall be transferred without recourse and without
any warranties or
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representations regarding the collectability of such Loans or the
creditworthiness of the debtors.
(d) Cash. All cash on hand at the Branch Office on the date of Closing.
Section 1.2 Assignment and Assumption of Liabilities. Upon the terms and
subject to the conditions set forth in this Agreement, Seller shall assign to
Purchaser, and Purchaser shall accept and assume from Seller, certain
liabilities relating to the Branch Office, as follows:
(a) Deposit Liabilities. All liabilities for payment of all savings
accounts, all certificates of deposit, all negotiable orders of withdrawal
accounts all demand deposit accounts, all money market deposit accounts, and all
other deposits or savings accounts, maintained at the Branch Office according to
their respective terms, as of the close of business on the Closing Date,
together with interest accrued thereon but unpaid as of the Closing Date (the
"Deposits" or "Deposit Liabilities"). It is agreed and understood that Seller
shall have the right to transfer to another of its branches any deposit not
assumed by Purchaser hereunder;
(b) Lease Obligations. The obligations and liabilities of Seller under
the lease dated October 1, 1997, between Sawgrass Promenade, Inc., as Landlord,
and Seller, as
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Tenant (the "Lease"). A copy of the Lease, as currently in force, has been
provided to Purchaser. Seller has agreed to assign and Purchaser has agreed to
accept and assume all obligations of Seller under the Lease pursuant to the
Assignment Agreement attached hereto as Exhibit A.
(c) Contracts. The obligations and liabilities of Seller under the
contracts associated with the Branch Office. Seller shall provide Purchaser with
a schedule of such contracts within 10 days of the date of this Agreement.
Section 1.3 Transfer Payment.
(a) Amount. In connection with the acquisition by Purchaser from Seller
of the assets of the Branch Office as provided for herein, and the assumption by
Purchaser from Seller of the Deposits and other liabilities of the Branch Office
as provided for herein, Seller shall transfer to Purchaser an amount (the
"Transfer Payment") equal to:
(i) the aggregate amount of Deposit Liabilities of the Branch Office
outstanding as of the close of business on the Closing Date,
together with all accrued but unpaid interest thereon, which
interest shall be accrued according to the deposit agreements in
effect as of the close of business on the Closing Date and in the
manner customarily
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used by the Seller to accrue interest; minus (ii) the sum of the
following amounts: (1) a premium in the amount of Nine Million Seven
Hundred Eighty Eight Thousand Four Hundred Ninety Six and 00/100
dollars ($9,788,496.00), representing four and eight tenths percent
(4.8%) of $203,927,000, the amount of deposits, rounded to the
nearest thousand, at the Branch as of the close of business February
28, 1998. Seller shall endeavor through best efforts in marketing
interest rates paid on deposit products to maintain the deposit
liabilities of the Branch at a level of approximately $203,927,000.
Notwithstanding this objective, the premium will be adjusted as
follows: (aa) If the aggregate balance of deposit liabilities,
including accrued interest but excluding non-consumer certificates
of deposit of $100,000 or more with negotiated rates ("Wholesale
Certificates of Deposit"), of the Branch to be assumed by the
Purchaser at the close of business on the last day of the month
preceding the Closing Date (the "Measurement Date") exceeds
$208,927,000, the premium shall be increased in an
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amount equal to four and eight tenths percent (4.8%) of the amount
of deposits in excess of $208,927,000 on the Measurement Date. (bb)
If the aggregate balance of deposit liabilities, including accrued
interest but excluding Wholesale Certificates of Deposit of the
Branch is at the close of business on the Measurement Date less than
$198,927,000, the premium shall be decreased in an amount equal to
four and eight tenths percent (4.8%) of the amount that $198,927,000
exceeds the actual aggregate balance of such deposits on the
Measurement Date; (2) One Hundred Thousand and 00/100 ($100,000.00)
for the Personal Property, leasehold improvements, and fixtures, to
be conveyed hereunder; (3) the principal amount of the Loans and the
outstanding balances on any overdraft checking lines of credit
assumed by Purchaser and the accrued interest thereon as of the
close of business on the Closing Date; and (5) the cash balances on
hand in the Branch Office as of the close of business on the Closing
Date, as determined by any method mutually agreeable to the parties
hereto. This sum shall be adjusted by the
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amount of prorations, as provided for in Section 1.4 hereof.
(b) Method of Payment. Seller shall make the Transfer Payment to
Purchaser as follows:
(i) On the Closing Date, Seller shall transfer to Purchaser, by wire
transfer of immediately available funds as directed by Purchaser, an
amount which Seller estimates to be the amount of the Transfer
Payment, based upon the Seller's books and records as of the close
of business on the day preceding the Closing Date; and (ii) if
necessary, on a date not more than ten (10) calendar days after the
Closing Date (the "Adjustment Payment Date"), Seller shall transfer
to Purchaser or Purchaser shall transfer to Seller, as appropriate,
an amount (the "Adjustment Payment"), such that the net amount paid
by Seller to Purchaser under this Section 1.3 shall equal the
Transfer Payment. Any Adjustment Payment due to either party on the
Adjustment Payment Date under this Section 1.3 shall be paid to such
party by wire transfer of immediately available funds as directed by
the payee party and shall include
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interest at the Federal Funds Rate (as hereinafter defined) for the
period from the Closing Date to, and including, the Adjustment
Payment Date. As used herein, the term "Federal Funds Rate" shall
mean the interest rate quoted in the Wall Street Journal at the
opening of business on the Closing Date for inter-bank placements
with a maturity of one (1) day.
Section 1.4. Prorations. It is the intention of the parties hereto that
Seller shall operate for its own account the business being transferred pursuant
to this Agreement until the close of business on the Closing Date, and that
Purchaser shall operate for its own account the business being transferred
pursuant to this Agreement from and after the close of business on the Closing
Date. Thus, except as otherwise specifically provided in this Agreement, items
of income and expense shall be prorated between the parties hereto as of the
close of business on the Closing Date, whether or not such adjustment would
normally be made as of such time.
Section 1.5. Closing Date; Closing. The closing hereunder (as defined
immediately below) shall occur as of the start of business on the Closing Date.
As used herein, the term "Closing Date" shall mean the first date mutually
acceptable to the
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parties hereto following, as soon as possible, the receipt by the parties hereto
of all governmental and regulatory approvals necessary to the completion of the
transfers contemplated herein, which date shall not be later than thirty (30)
days after the receipt of all regulatory approvals required hereunder, unless
otherwise consented to by the parties hereto in writing (which consents shall
not be unreasonably withheld). Delivery of the instruments of assignment and
transfer to be delivered by Seller and payment of the estimated Transfer Payment
by Seller, delivery of the instruments of assumption to be delivered by
Purchaser, and the other transactions herein contemplated to take place
concurrently with such deliveries, assumptions, and payments (the "Closing"),
shall take place on the Closing Date, at such time and place as are agreed to by
the parties, and all such shall be effective as of the close of business on the
Closing Date; provided that any funds to be paid by Seller to Purchaser on the
Closing Date shall be paid by wire transfer of immediately available funds on
the Closing Date as early as possible and, in any event, before 3:00 p.m.
Eastern Time, on the Closing Date. Any deliveries, assignments, or transfers
required under this Agreement, other than the foregoing, shall be made at the
time and date specified in this Agreement (and where no time is specified, on or
before the close of business on the date
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specified) and in the manner and place specified in this Agreement (or, where
not specified, in the manner and place as may be reasonably requested in writing
by the party that is to receive such delivery, assignment or transfer).
Section 1.6 Fiduciary Relationships. As part of the assignment of Deposits
contemplated herein, Seller will assign to Purchaser, and Purchaser will assume
from Seller, all Individual Retirement Account ("XXX") and Defined Contribution
Plan (Xxxxx or Corporate) Deposits maintained at the Branch Office at Closing,
together with all fiduciary relationships, obligations, and duties of Seller
arising therefrom. Seller, in its capacity as Trustee of the XXX and Xxxxx
Deposits-being assumed by Purchaser hereunder, shall to the extent legally
permissible resign as Trustee and appoint and designate Purchaser as Successor
Trustee of such Deposits, effective as of Closing, and Purchaser shall accept
such appointment and designation.
Section 1.7 Inspection of Personal Property. The Personal Property to be
transferred hereunder shall be transferred in "as is" condition. Purchaser's
obligations hereunder are expressly subject to its, or its agent's, favorable
inspection of the Personal Property; provided, however, that Purchaser must
notify Seller in writing within ten (10) business days from the date of this
Agreement of any defects in the
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condition of the Personal Property unacceptable to it. Seller then shall have
ten (10) days from the date of this notice to decide whether to correct the
defects identified by Purchaser, in which case Seller shall act as expeditiously
as possible to correct such defects, or to terminate this Agreement. Any
objections of the Purchaser to the condition of the Personal Property to be
transferred hereunder (including any future demands for indemnification under
this Agreement) which are not raised within the time period specified above
shall be deemed waived.
ARTICLE II
REPRESENTATIONS, WARRANTIES, AND COVENANTS OF SELLER Seller represents,
warrants, and covenants to Purchaser as follows:
Section 2.1 Organization. Seller is a federal savings bank, duly
organized, validly existing, and in good standing under the laws of the United
States.
Section 2.2 Authority. Seller has the power and authority to enter into
and perform this Agreement. On or before the Closing Date, this Agreement and
the execution, delivery, and performance hereof will be duly authorized and
approved by the Board of Directors of Seller. This Agreement constitutes a valid
and binding obligation of Seller, enforceable against Seller in
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accordance with its terms, except as enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws of general applicability
relating to or affecting creditors' rights, or by general equitable principles.
Section 2.3 Non-Contravention. The execution and delivery of this
Agreement by Seller do not and, subject to the receipt of all required approvals
and consents, the consummation of the transactions contemplated by this
Agreement will not constitute: (a) a breach or violation of or default under any
law, rule, regulation, judgment, order, governmental permit or license,
agreement, indenture, or instrument of Seller or to which Seller is subject,
which breach, violation, or default would have a material adverse effect on the
business or properties of the Branch Office; or (b) a breach or violation of or
a default under the Charter or By-Laws of Seller or any material contract or
other instrument to which Seller is a party or by which Seller is bound.
Section 2.4 Compliance with Law. The business and operations of the Branch
Office, to the best of Seller's knowledge, have been and are being conducted in
accordance with all material applicable laws, rules, and regulations of all
relevant authorities including, without limitation, proper interest reporting
and withholding.
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Section 2.5 Financial Information.
(a) All financial information previously furnished or to be furnished
by Seller to Purchaser in connection with the transactions contemplated in this
Agreement, to the best of Seller's knowledge, was or will be accurate and
complete in all material respects as of the dates and for the periods specified
therein;
(b) The books of account of the Branch Office fairly and accurately
reflect the respective assets and liabilities of the Branch Office in accordance
with generally accepted accounting principles, or regulatory accounting
principles, whichever is applicable and, in any case, consistently applied, and
there are no material assets or liabilities, contingent or otherwise, that are
not reflected therein;
(c) The books of account of the Branch Office have been, and are being,
maintained in accordance with applicable legal and accounting requirements and
reflect only actual transactions, and without limiting the foregoing, the
Deposits reflected as of the date of this Agreement on the books of account of
the Branch Office are valid and binding Deposits, subject to applicable
bankruptcy and insolvency laws, and such Deposits were generated in the ordinary
course of business of the Branch Office in compliance and in accordance with
applicable law
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and regulations and have been recorded on the books of account of the Branch
Office in accordance with the accounting principles described in Section 2.5
herein;
Section 2.6 Legal Proceedings. Except as indicated on Exhibit C to this
Agreement, there are no material actions, suits, or proceedings, whether civil,
criminal or administrative, pending or, to the knowledge of Seller, threatened
against or affecting Seller which may cause any material adverse change in the
aggregate value of the Real Property, the Personal Property, the Branch Office
generally, or in the amount of the Deposit Liabilities, or which have or may
have a material adverse impact on Seller's obtaining the regulatory approvals
Seller is required to obtain as a condition to the lawful consummation of the
transactions contemplated by this Agreement. Exhibit C shows all outstanding
actions or proceedings, pending or threatened, involving the Branch Office and
involving the assets to be conveyed or the liabilities to be assumed hereunder.
Section 2.7 Taxes. All property 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 with
respect to the Branch Office as of the start of business on the Closing Date, to
the best of Seller's knowledge, will have been paid in full or
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properly accrued and adequately provided for by reserves shown in
the books and records of Seller.
Section 2.8 Access to Information.
(a) Periodic Information. In the interval between execution of this
Agreement and the Closing, Seller shall use its best efforts to provide
Purchaser with weekly periodic information concerning aggregate deposits of the
Branch Office (broken down by type of deposit account, maturity dates, or in
other respects, as appropriate) as produced by Seller in its normal course of
business;
(b) Access to Branch Office. As soon as possible after the execution of
this Agreement, Seller shall, to the extent permitted by law, afford the
officers, attorneys, accountants and other authorized representatives of
Purchaser reasonable access during normal business hours to Seller's books,
records, and other information pertaining to the Branch Office and the business
conducted by Seller thereat, including all files of Seller relating to the
Deposits and Loans to be assumed or acquired by Purchaser; and
(c) Deposit Tape. As soon as possible after the execution of this
Agreement, Seller shall furnish to Purchaser to the extent permitted by law, a
sample magnetic tape, containing all types of information respecting deposit
accounts and holders
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thereof at the Branch Office as may be reasonably necessary or appropriate if
Purchaser is to assume the Deposits as of the Closing and establish accounts for
the holders thereof immediately thereafter, and Seller shall cooperate with
Purchaser in adapting such magnetic tape or in implementing such other method of
information transfer as shall expedite the transfer of Deposits to Purchaser at
Closing.
Section 2.9 Confidentiality. Seller shall keep confidential the existence
and nature of this Agreement and the negotiations leading hereto (except in the
event and to the extent that such Agreement and negotiations must be disclosed
to obtain regulatory approvals, other required approvals, or may be publicly
disclosed in accordance with Section 8.2 hereof or are deemed necessary to
comply with the federal securities disclosure laws) and shall keep confidential
all information obtained by it from Purchaser in connection with the
transactions provided for herein, such confidentiality to survive termination or
consummation of this Agreement.
Section 2.10 Untrue Statements. No representation or warranty by Seller in
this Agreement or any statement or certificate furnished or to be furnished to
Purchaser pursuant hereto or in connection with the transactions contemplated
hereby contains or will contain any untrue statement of material fact,
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or omits or will omit to state any material fact necessary to make statements
contained herein or therein not misleading.
Section 2.11 Regulatory Approvals and Standards. Seller will use its best
efforts to obtain, and to assist Purchaser in obtaining, as expeditiously as
possible any regulatory approvals, acquiescences or consents required to be
obtained as a condition to the lawful consummation of the transactions
contemplated by this Agreement, and will proceed diligently and in good faith to
prepare and file as promptly as practicable after execution of this Agreement
all necessary applications of Seller for such regulatory approvals,
acquiescences and consents. As of the Closing Date, Seller will satisfy each and
all of the standards and requirements lawfully within its control imposed as a
condition to obtaining or necessary to comply with any such regulatory approval,
acquiescence, or, consent except for any such standard or requirement which
would, in the opinion of Seller, have a material adverse impact on Seller.
Section 2.12 Possession. Possession of the Branch Office shall be
delivered to Purchaser on the Closing Date, provided Purchaser has satisfied all
of its obligations under this Agreement.
Section 2.13 Solicitation of Accounts. During the period between the
execution hereof and one year after the Closing Date,
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Seller will not attempt to persuade its deposit customers at the Branch Office
to transfer deposits to any other branches of Seller, except that the foregoing
shall not prohibit such attempts to persuade or solicit deposits as may occur in
connection with advertising or solicitations by or on behalf of Seller directed
to the public generally or to persons who were on the Closing Date or who
thereafter become depositors of branch offices of Seller other than the Branch
Office being transferred under the terms of this Agreement. In addition, nothing
in this Section shall prevent Seller from forwarding such notices or
communications as may be specifically authorized or contemplated under Article
VIII of this Agreement. Nothing contained in this Section is to be construed to
prevent Seller from accepting deposits from existing customers of the Branch
Office as of the Closing Date who desire to maintain their relationships with
Seller and request that their deposits be moved to another branch office of
Seller.
Section 2.14 New Branch. The Seller shall not open a new retail banking
office within the market area of the Branch (defined as a 2 mile radius around
the Branch) for a period of 12 months following the Closing Date. This
restriction shall not preclude the Seller from acquiring or being acquired by
another financial institution which may have Branches within such market
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area.
Section 2.15 Corporate and Other Consents. Seller shall use its best
efforts to secure all necessary corporate and other non-regulatory consents
(excepting those involving Purchaser) and shall comply with all applicable laws,
regulations, and rulings in connection with this agreement and the consummation
of the transactions contemplated hereby.
Section 2.16 Conduct of Business Pending Closing. Between the date hereof
and the Closing Date, Seller shall cause the Branch Office to conduct its
operations according to the ordinary and usual course of business and shall
cause the Branch Office to maintain its records and books of account in a manner
that fairly and accurately reflects its assets and liabilities in accordance
with generally accepted accounting principles and between the date hereof and
the Closing Date, no action shall be taken by Seller with respect to the Branch
Office and no course of conduct shall be engaged in by Seller with respect to
the Branch Office which would have the effect of materially diminishing the
assets or materially adversely affecting the business, property, or financial
position of the Branch Office. Furthermore, except as may be expressly provided
for herein, or may be required to obtain regulatory approvals, or as otherwise
may be required by a regulatory authority to effect the purposes contemplated
herein,
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between the date of execution hereof and the Closing Date, Seller shall not,
without the prior written consent of Purchaser:
(a) Material Transactions. Cause or permit the Branch Office to engage
or participate in any material transaction or incur or sustain any material
obligation, except in the ordinary course of business;
(b) Asset Transfers. Cause or permit the Branch Office to transfer to
any other branch or operation of Seller or any other person any material amount
of: (i) deposits (excepting transfers of deposits specifically requested by
depositors); (ii) equipment or supplies (excepting such as have a unique
function in Seller's business or which ordinarily would not be useful to
Purchaser); or (iii) fixed assets;
(c) Fixed Assets. Invest in any fixed assets for the Branch Office,
except for replacements of furniture, furnishings, and equipment and normal
refurbishing purchased or made in the ordinary course of business; or
(d) Inconsistent Actions. Undertake any actions which are inconsistent
with a program to use all reasonable efforts to maintain good relations with
employees employed at, and customers of, the Branch Office.
Section 2.17 Seller's Indemnities.
(a) Covered Items. Seller agrees to indemnify, hold
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harmless, and defend Purchaser at all times from and after the Closing against
and from any and all losses, claims, damages, costs, expenses, or liabilities to
which Purchaser becomes subject insofar as such losses, claims, damages, costs,
expenses, and liabilities (or actions in respect thereof and costs and expenses,
including legal fees incurred in connection with such actions) arise out of or
are based upon the following:
(i) The activities and operations of the Branch Office for all
periods up to and including the Closing, including but not
limited to obligations to depositors and borrowers on the
Deposits or Loans transferred to Purchaser;
(ii) The existence of any facts, circumstances, situations, or
conditions or the happening of any event constituting a breach
or violation of any of the representations, warranties,
covenants, certifications, or agreements of Seller contained
in this Agreement, or the untruth or inaccuracy thereof; or
(iii) Damages to persons or property that occur prior to or as
of the Closing in or relating to the operation of the Branch
Office other than those caused by or contributed to by
Purchaser.
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(b) Purchaser's Obligations. The indemnities available hereunder are
conditioned upon Purchaser giving Seller written notice of any claim promptly
upon discovery or assertion thereof.
(c) Seller's Participation. In any matter covered by this Section 2.17,
Seller shall be entitled to participate at Seller's own expense in the defense
or, if it so elects, to assume the defense of any such claim, in which event
such defense shall be conducted by counsel chosen by Seller. In such event,
Purchaser shall bear the expenses of any additional counsel retained by
Purchaser.
ARTICLE III
REPRESENTATIONS, WARRANTIES, AND COVENANTS OF PURCHASER
Purchaser represents, warrants, and covenants to Seller as follows:
Section 3.1 Organization. Purchaser is a banking corporation duly
organized, validly existing and in good standing under the laws of the State of
Florida.
Section 3.2 Authority. Purchaser has the power and authority to enter into
and perform this Agreement. On or before the Closing Date, this Agreement and
the execution, delivery and performance hereof, and the consummation of the
transactions contemplated hereby will have been duly and validly authorized by
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all necessary corporate action on the part of Purchaser. This Agreement is a
valid and binding obligation of Purchaser, enforceable in accordance with its
terms except as enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws of general applicability relating to or
affecting creditors' rights, or by general equitable principles.
Section 3.3 Non-Contravention The execution and delivery of this Agreement
by Purchaser do not and, subject to the receipt of all required approvals and
consents, the consummation of the transactions contemplated by this Agreement
will not constitute: (a) a breach or violation of or default under any law,
rule, regulation, judgment, order, governmental permit or license, agreement,
indenture or instrument of Purchaser or to which Purchaser is subject, which
breach, violation or default would have a material adverse effect on Purchaser;
or (b) a breach or violation of or a default under the Certificate of
Incorporation or By-Laws of Purchaser or any material contract or other
instrument to which Purchaser is a party or by which Purchaser is bound.
Section 3.4 Confidentiality. Purchaser shall keep confidential the
existence and nature of this Agreement and the negotiations leading hereto
(except in the event and to the extent that such Agreement and negotiations must
be disclosed to
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obtain regulatory or other required approvals or may be publicly disclosed in
accordance with Section 8.2 hereof) and shall keep confidential all information
obtained from Seller in connection with the transactions provided for herein
which does not specifically relate to the Branch Office or the business
conducted thereat and shall not use such information otherwise than in
connection with this Agreement. In the event of termination of this Agreement,
Purchaser shall keep confidential all information received from Seller and shall
use all reasonable efforts to return to Seller, upon Seller's written request
therefor, all documents received from Seller that include or evidence such
information. This warranty shall survive Closing or the termination of the
Agreement.
Section 3.5 Regulatory Approvals and Standards. Purchaser will use its
best efforts to obtain, and to assist Seller in obtaining, as expeditiously as
possible any regulatory approvals, acquiescences or consents required to be
obtained as a condition to the lawful consummation of the transactions
contemplated by this Agreement, and will proceed diligently and in good faith to
prepare and file as promptly as practicable after the execution of this
Agreement all necessary applications of Purchaser for such regulatory approvals,
ascquiescences, and consents. Purchaser is unaware of any fact(s) which would
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interfere with or delay approval of the transactions contemplated by this
Agreement. As of the Closing Date, Purchaser will satisfy each and all of the
standards and requirements lawfully within its control imposed as a condition to
obtaining or necessary to comply with any such regulatory approval,
acquiescence, or consent, except for any such standard or requirement which
would, in the opinion of Purchaser, have a material adverse effect on Purchaser.
Section 3.6 Corporate Consents. Purchaser shall use best efforts to secure
all necessary corporate and other non-regulatory consents (except those
involving Seller) and shall comply with all applicable laws, regulations, and
rulings in connection with this Agreement and the consummation of the
transactions contemplated hereby.
Section 3.7 Change of Name; Notification of Customers. From and after the
Closing Date, Purchaser shall promptly: (a) change the name on all documents and
facilities relating to the Branch Office to Purchaser's name; (b) take any other
actions required by law or regulation or court or regulatory authority to notify
customers or depositors of the Branch Office or residents of the communities in
which such Office are located of the transfers and assumptions occurring
pursuant to this Agreement; (c) use its best efforts to cause all passbooks,
installment loan
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books, and other materials previously issued with respect to the Deposits or the
Loans transferred to Purchaser at Closing to be legended or replaced within six
(6) months of the Closing Date to reflect the name of Purchaser; and (d) cause
all agreements relating to any federal recurring payments or ACH transfers
covered by Section 7.3 to be amended to designate Purchaser within six (6)
months of the Closing Date. Nothing in this Section shall require Purchaser to
undertake to reissue deposits or rewrite outstanding loans or other documents
assumed by or assigned to Purchaser on the Closing Date, except in the ordinary
course of business; it being understood, however, that reasonable efforts will
be used to change names in accordance with the provisions of the first sentence
of this Section.
Section 3.8 Untrue Statements. No representation or warranty by Purchaser
in this Agreement or any statement or certificate furnished or to be furnished
to Seller pursuant hereto or in connection with the transactions contemplated
hereby contains or will contain any untrue statement of material fact, or omits
or will omit to state any material fact necessary to make statements contained
herein or therein not misleading.
Section 3.9 Exit and Entrance Fees. Purchaser agrees to pay any and all
fees imposed by the Savings Association Insurance Fund, Bank Insurance Fund, or
any other regulatory authority
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imposed in connection with this transaction.
Section 3.10 Sales and Transfer Taxes. All excise, sales, use, transfer
and recording taxes and any other taxes or assessments which are payable or
arise as a result of this Agreement or the consummation of the transfers
contemplated herein shall be timely paid by Purchaser.
Section 3.11 Records. Purchaser agrees that it will preserve and keep
safely, for as long as required by law, all of the signature cards, orders,
contracts, forms, taxpayer identification number certifications and other
records referred to in this Agreement for the joint benefit of itself and
Seller, and it will permit Seller and its representatives to inspect, and make
extracts from or copies of, any such documents, at any reasonable time, as shall
be reasonably necessary to Seller for purposes of its records.
Section 3.12 Purchaser's Indemnities.
(a) Pre-Closing Covered Items. Purchaser agrees to indemnify, hold
harmless, and defend Seller against any and all claims, demands, actions,
damages, costs, liabilities, losses or suits, including attorney's fees, for
personal injury or property damage to which Seller may become subject in any way
arising from the acts or omissions of persons entering the Real Property on
behalf of the Purchaser pursuant to this Agreement prior to the
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Closing;
(b) Post Closing Covered Items. Purchaser agrees to indemnify, hold
harmless, and defend Seller at all times after the Closing against and from any
and all losses, claims, damages, costs, expenses, or liabilities to which Seller
becomes subject insofar as such losses, claims, damages, costs, expenses and
liabilities (or actions in respect thereof and costs and expenses, including
legal fees incurred in connection with such actions) arise out of or are based
upon the following:
(i) The activities and operations of the Branch Office or the
Real Property for all periods after the Closing, including,
but not limited to, obligations to depositors and borrowers on
the Deposits or Loans acquired by Purchaser;
(ii) The existence of any facts, circumstances, situations, or
conditions or the happening of any event constituting a breach
or violation of any of the representations, warranties,
covenants, certifications, or agreements of Purchaser
contained in this Agreement, or the untruth or inaccuracy
thereof;
(iii) Any wrongful default under or failure to
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perform, on the part of Purchaser, after the Closing relating
to the Loans and liabilities transferred hereunder, including,
but not limited to, Purchaser's obligations as drawee or payor
bank on drafts, checks, and negotiable orders of withdrawal
written on Seller's check forms as provided in Article VII
hereof, and fiduciary relationships that are purchased or
assumed by Purchaser; or
(iv) Damages to persons or property that occur after the
Closing in or relating to the operation of the Branch Office
or Real Property.
(c) Seller's Obligations. The indemnities available hereunder are
conditioned upon Seller giving Purchaser written notice of any claim promptly
upon discovery or assertion thereof.
(d) Purchaser's Participation. In any matter covered by this Section
3.12, Purchaser shall be entitled to participate at Purchaser's own expense in
the defense or, if it so elects, to assume the defense of any such claim, in
which event such defense shall be conducted by counsel chosen by Purchaser. In
such event, Seller shall bear the expense of any additional counsel retained by
Seller.
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ARTICLE IV
DOCUMENTS AND TRANSFERS ON THE CLOSING DATE AND THE ADJUSTMENT PAYMENT DATE
Section 4.l Closing Date-Seller On the Closing Date, Seller shall
deliver the following documents and make the following transfers to Purchaser:
(a) A statement setting forth the aggregate amount of Deposit
Liabilities agreed to be transferred to and assumed by Purchaser and accrued
interest thereon, with a certification of an appropriate Officer of Seller,
certifying that, to the best of his knowledge, the information contained in the
statement is true, correct, and complete;
(b) A statement of the Loans to be purchased by Purchaser,
setting forth the aggregate principal amount of such loans and accrued interest
thereon and listing, for each such loan, the name and address of the borrower,
the principal amount of, interest rate on, and the amount of accrued but unpaid
interest owing in regard thereto, and such other information as may be necessary
for Purchaser to establish accounts therefor, with a certification of an
appropriate Officer of Seller, certifying that, to the best of his knowledge,
the information contained in the statement is true, correct, and complete;
(c) A statement of the proration amounts to be paid in
accordance with Section 1.4 hereof, with a certification of an
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appropriate Officer of Seller, certifying that to the best of his knowledge the
information contained in the statement is true, correct, and complete;
(d) An assignment of the Deposit Liabilities to Purchaser,
fully executed by Seller, in the form of the Assignment and Assumption of
Liabilities attached hereto as Exhibit D, and an assignment of the Loans and any
overdraft checking lines of credit assumed by Purchaser in form and substance
reasonably satisfactory to Purchaser;
(e) All records and files maintained at the Branch Office or
elsewhere relating to the Deposit Liabilities and Loans to be assumed or
purchased by Purchaser, including but not limited to, signature cards,
applications, copies of passbooks, certificates, notes, security agreements,
pledge agreements, and financing statements;
(f) The amount described in Section 1.3(b), paragraph (i);
(g) Certified copies of resolutions of Seller's Board of
Directors;
(h) An Officer's Certificate as provided in Section 6.4 of
this Agreement;
(i) A Closing Statement for execution by the parties;
(j) An assignment of the Lease in the form generally
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attached hereto as Exhibit A.
In addition, on the Closing Date, Seller shall make hand delivery to
Purchaser of a listing of the Deposits as of the close of business on the day
prior to the Closing Date (the "Deposit Listing"), on magnetic tape or utilizing
such other method of information transfer as the parties shall have agreed
pursuant to Section 2.8 hereof, which Deposit Listing shall include, for each
Deposit, the name and address of the owner thereof, the account number, the
principal balance, the accrued interest, the maturity date, if any, the interest
rate, the tax identification number, and such other information as may be
necessary for Purchaser to establish accounts therefor.
Section 4.2 Closing Date - Purchaser. On the Closing Date, Purchaser
shall deliver to Seller the following documents:
(a) An undertaking for assumption of the Deposit Liabilities,
fully executed by Purchaser, in the form of the Assignment and Assumption of
Liabilities attached hereto as Exhibit D, and an undertaking for assumption of
the Loans and any overdraft checking lines of credit to be assumed by Purchaser
fully executed by Purchaser, in form and substance satisfactory to Seller;
(b) Certified copies of resolutions of Purchaser's Board of
Directors; and
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(c) An Officer's Certificate as provided in Section 5.4 of
this Agreement.
(d) An executed closing statement.
(e) An executed Assignment of Lease in the form annexed hereto
as Exhibit A.
Section 4.3 Adjustment Payment Date - Seller. On the Adjustment Payment
Date, Seller shall deliver the following documents and make the following
transfers to Purchaser:
(a) A statement setting forth, in whatever format is most
convenient, any corrections to the information contained in the Deposit Listing
delivered to Purchaser on the Closing Date, with a certification of an
appropriate Officer of Seller, certifying that the information set forth in the
statement and attachments thereto, if any, is true, correct, and complete;
(b) A statement setting forth any corrections to the
information contained in the statement of Loans provided to the Purchaser on the
Closing Date, with a certification of an appropriate Officer of Seller,
certifying that the information contained in the statement is true, correct, and
complete;
(c) A statement setting forth, in whatever format is most
convenient, any corrections to the information contained in the statement of
proration amounts to be paid in accordance with Section 1.4 hereof as of the
close of business on the Closing
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Date, with a certification of an appropriate Officer of Seller, certifying that
the information contained in the statement is true, correct, and complete;
(d) Any Adjustment Payment due to the Purchaser, as provided
in Section 1.3(b), paragraph (ii) of this Agreement; and
(e) A Closing Statement for execution by the parties.
Section 4.4 Adjustment Payment Date - Purchaser On the Adjustment
Payment Date, Purchaser shall pay to Seller any Adjustment Payment owed to
Seller pursuant to Section 1.3(b), paragraph (ii) of this Agreement.
Section 4.5 Disputes. Any disputes between the parties hereto regarding
the accuracy or correctness of the financial statements or amounts delivered by
the parties hereto on the Closing Date shall be resolved as follows: Purchaser
or Seller, as the case may be, shall have twenty (20) days from the Closing Date
to request in writing that the dispute be reviewed by a recognized, national
accounting firm, other than a firm then employed by either Purchaser or Seller
(the "Accounting Firm"). (A copy of such request also shall be delivered to the
other party to this Agreement.) The Accounting Firm shall investigate the matter
and as soon as possible, render a determination as to what amounts, if any, are
payable by either party hereto so as to resolve the dispute in accordance with
the terms of this
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Agreement (the "Correction Payment"). The Correction Payment also shall include
interest thereon at the Federal Funds Rate for the period from the Adjustment
date to the date of its payment. The cost of the services provided by the
Accounting Firm shall be shared equally by the parties hereto; provided,
however, that such amount shall be paid in the first instance by the party
requesting the services; and provided further that the other party hereto shall
reimburse the payor of the obligation for one-half (1/2) of such amount within
ten (10) days of receipt by it of written demand for reimbursement.
ARTICLE V
CONDITIONS TO OBLIGATIONS OF SELLER
The obligations of Seller under this Agreement are subject to the
conditions that on the Closing Date:
Section 5.1 Compliance with Conditions. All of the covenants and
conditions required by this Agreement, or by any of the attached Exhibits, to be
complied with and performed by Purchaser on or before the Closing Date shall
have been duly complied with and performed in all material respects.
Section 5.2 Truth of Warranties. The representations and warranties
made by Purchaser herein or in the Exhibits, or in any certificate or document
delivered pursuant to the provisions
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hereof or thereof or in connection with the transactions contemplated hereby or
thereby shall be correct in all material respects, on and as of the Closing
Date, with the same force and effect as though such representations and
warranties had been made on the Closing Date.
Section 5.3 Regulatory Approvals. All regulatory approvals,
acquiescences, and consents necessary to the consummation of the transactions
provided for herein shall have been obtained without requirements which would,
in the opinion of Seller, have a material adverse impact on Seller, and shall be
in full force and effect, and all required waiting periods incident thereto
shall have expired.
Section 5.4 Officers' Certificate. Seller shall have received a
Certificate of an authorized officer of Purchaser as of the Closing Date,
certifying that: (a) Purchaser has performed and complied with all covenants and
conditions required by this Agreement and the Exhibits attached hereto to be
performed or complied with by Purchaser prior to or at the Closing, and (b) all
representations and warranties made by Purchaser in this Agreement, or in any
certificate or document delivered pursuant to the provisions hereof or thereof
or in connection with the transactions contemplated hereby or thereby, are true
at and as of the time of Closing.
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Section 5.5 Directors' Resolutions= Seller shall have received
certified copies of resolutions of Purchaser's Board of Directors authorizing
the execution, delivery, and performance of this Agreement.
Section 5.6 Absence of Adverse Facts. There shall be no discovery of
facts, developments or actual or threatened causes of action, investigations or
proceedings by or before any court or other governmental body that relates to or
involves Purchaser and which would have a materially adverse effect upon the
consummation of the transactions contemplated by this Agreement or that
challenges the validity or legality of this Agreement, seeks to restrain or
invalidate the consummation of the transactions contemplated by this Agreement,
seeks damages in connection therewith, or that would be materially adverse to
the interests of Seller.
Section 5.7 Consent to Assignment of Lease. The landlord under the
Lease shall have consented on terms reasonably satisfactory to Seller, to
Seller's assignment of the Lease to Purchaser.
ARTICLE VI
CONDITIONS TO OBLIGATIONS OF PURCHASER
The obligations of Purchaser under this Agreement are subject to the
conditions that, on the Closing Date:
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Section 6.1 Compliance with Terms of Agreement. All the covenants and
conditions required by this Agreement or by the attached Exhibits to be complied
with and performed by Seller on or before the Closing Date shall have been duly
complied with and performed in all material respects.
Section 6.2 Truth of Warranties. The representations and warranties
made by Seller herein or in the attached Exhibits, or in any certificate or
document delivered pursuant to the provisions hereof or thereof or in connection
with the transactions contemplated hereby or thereby, shall be correct in all
material respects, on and as of the Closing Date, with the same force and effect
as though such representations and warranties had been made on the Closing Date.
Section 6.3 Regulatory Approvals. All regulatory approvals,
acquiescences, and consents necessary to the consummation of the transactions
provided for herein shall have been obtained without requirements which would,
in the opinion of Purchaser, have a material adverse effect on Purchaser, and
shall be in full force and effect and all required waiting periods incident
thereto shall have expired.
Section 6.4 Officers' Certificate. Purchaser shall have received a
Certificate of an appropriate officer of Seller, dated as of the Closing Date
certifying that: (a) Seller has performed
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and complied with all covenants and conditions required by this Agreement and
the Exhibits attached hereto to be performed or complied with by Seller prior to
or at the Closing, and (b) all representations and warranties made by Seller in
this Agreement or the Assignment Agreement, or in any certificate or document
delivered pursuant to the provisions hereof or thereof or in connection with the
transactions contemplated hereby or thereby, are true at and as of the time of
Closing.
Section 6.5 Directors' Resolutions. Purchaser shall have received
certified copies of resolutions of Seller's Board of Directors authorizing the
execution, delivery, and performance of this Agreement.
Section 6.6 Absence of Adverse Facts. There shall be no discovery of
facts, developments or actual or threatened causes of action, investigations or
proceedings by or before any court or other governmental body that relates to or
involves Seller and which would have a materially adverse effect upon the
consummation of the transactions contemplated by this Agreement or that
challenges the validity or legality of this Agreement, seeks to restrain or
invalidate the consummation of the transactions contemplated by this Agreement,
seeks damages in connection therewith, or that otherwise would be materially
adverse to the interests of Purchaser.
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ARTICLE VII
INTERIM SERVICING AND DEPOSIT HISTORIES
Section 7.l Demand Deposit Account Owners. Not less than twenty (20)
nor more than thirty (30) business days prior to Closing, Purchaser and Seller
will jointly notify all demand deposit and all negotiable order of withdrawal
account owners whose accounts are housed at the Branch Office and are to be
conveyed to Purchaser hereunder that checks or drafts written after the Closing
Date on Seller's draft or check forms will not be honored. Such notice shall be
made equally at Purchaser's and Seller's expense. Purchaser will supply such
account owners with Purchaser's own check or draft forms on or before Closing.
Section 7.2 Seller Processing Duties. For a period not to exceed 90
days after the Closing Date, Seller agrees to act as Purchaser's limited
correspondent for the processing of drafts, checks, and negotiable orders of
withdrawal drawn before or after the closing on forms provided by Seller on any
such accounts assumed by Purchaser hereunder. Seller agrees in this regard that
it shall:
(a) maintain a mechanism to receive such items on a daily
basis;
(b) provide a daily magnetic tape of, or transmit a daily
electronic record of, all such items received by it that
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same day to Purchaser, in such form as shall be agreed to by Purchaser and
Seller; and
(c) shall prepare for shipping all physical items received by
it by 10:00 a.m. of the following business day by such means as agreed to by the
parties.
Purchaser and Seller agree that any courier or telephone costs
associated with paragraphs (b) and (c) shall be borne by Purchaser. Seller
further agrees that it shall notify Purchaser of any information received
regarding the settlement and clearance of any foreign checks, savings bonds, or
coupons deposited with it prior to the Closing Date. Unless caused by the
negligence of Seller and subject to the provisions of Section 2.17, any risks of
loss associated with the interim servicing, including any risk of loss
associated with insufficient funds or stop payments, shall be the responsibility
of the Purchaser, provided in the case of stop payments that Seller has advised
Purchaser of the existence of such stop payment at the Closing.
Section 7.3 Processing of Electronic Items. For a period not to exceed
three months after the Closing Date Seller agrees to continue to receive after
the Closing on behalf of Purchaser all federal recurring payments or ACH
transfers currently directed to Seller. Seller also agrees that any daily
magnetic tapes or electronic transmissions provided to Purchaser pursuant
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to section 7.2 herein shall include a record of all such recurring federal
payments or ACH transfers received by Seller on the previous business day.
Purchaser agrees to reimburse Seller for any telephone costs incurred by Seller
in the provision of this service.
Section 7.4 Purchaser Processing Obligations. During the processing
period set out in Section 7.2 hereof, Purchaser agrees to honor and pay all
properly payable drafts, checks, or negotiable orders of withdrawal delivered to
it by Seller pursuant to Section 7.2 hereof.
Section 7.5 Return of Items During Processing Period. Purchaser further
agrees to be solely responsible for the return of any drafts, checks, or
negotiable orders of withdrawal delivered by Seller to Purchaser pursuant to
Section 7.2 of this Agreement or any return of any federal recurring payments or
ACH transactions processed pursuant to Section 7.3 hereof. Seller agrees to
notify Purchaser of the return to it of any items deposited in, or cashed at,
the Branch Office prior to the Closing Date and shall expeditiously forward any
such items to Purchaser.
Section 7.6 Settlement. In settlement of the transactions described in
Section 7.2, Section 7.3, and Section 7.5, Purchaser and Seller agree that
Seller shall provide
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Purchaser with a daily net settlement figure for all such transactions then
pending by 12:00 Noon, Eastern Time of each business day; the parties agree that
the party obligated to remit any funds thereunder shall do so by 1:00 P.M.,
Eastern Time, of such day. Any such settlement shall be provisional pending
receipt by Purchaser of the physical items relating to such settlement;
Purchaser shall adjust the next daily settlement to reflect any adjustments
resulting from its receipt of the physical items.
Section 7.7 Deposit Histories. In case of any dispute with or inquiry
by an accountholder whose Deposit is subject to this Agreement, which dispute or
inquiry relates to the servicing of such Deposit by Seller prior to the date for
which a Deposit history has been provided to Purchaser, Seller will provide
Purchaser with the appropriate information regarding the Deposit and copies of
pertinent documents or instruments with respect to such dispute or inquiry so as
to permit Purchaser to respond to the accountholder within a period of time and
in a manner which would comply with standard banking practices and customs.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Expenses. Except as expressly provided for herein, Seller
and Purchaser each shall pay its own expenses in
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connection with this Agreement, including counsel fees and appraisals, if any,
whether or not the transactions contemplated by this Agreement are consummated;
provided, however, that Purchaser shall pay, or reimburse Seller for, all sales,
excise, use, property and other taxes that arise in connection with the
transactions contemplated in this Agreement, exclusive of taxes based on
Seller's net income; and provided, further, that nothing contained in this
Section shall be construed to relieve a party who breaches this Agreement from
liability to the non-breaching party for damages arising from the breach.
Section 8.2 Communications, Notices, etc. During the period from the
execution of this Agreement to the Closing, Purchaser and Seller shall not
communicate with the employees, depositors, or customers of the Branch Office,
except as specifically required by the relevant regulatory agencies as part of
their approval process, or as specifically provided for herein:
(a) Joint Communications. As soon as practicable after
execution of this Agreement, Purchaser and Seller shall jointly communicate at
Purchaser's and Seller's equal expense with the employees of the Branch Office
advising such employees of the transfers to be completed hereunder. In addition,
Seller shall permit Purchaser reasonable additional opportunities to
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communicate with the employees of the Branch Office accompanied by a
representative of Seller. After receipt of all regulatory approvals required
for this transaction, Seller shall separately communicate, at Seller's and
Purchaser's equal expense, with each depositor or other customer of the Branch
Office, advising such persons of the pendency of the transfers contemplated
herein and urging each such customer to maintain the customer's relationship
with the Branch Office after the transfers contemplated herein are completed.
All communications shall be in a form and substance mutually satisfactory to the
parties hereto. After receipt of all required regulatory approvals, the parties
also may issue a joint press release announcing this transaction. All press
conferences or meetings with members of the news media regarding the transaction
shall be joint between the parties hereto.
(b) Purchaser's Communications. With the exception of the
communications permitted in Paragraph (a) above, Purchaser may not communicate
with the employees, depositors, and other customers of the Branch Office without
the prior written consent of Seller. Any such permitted communications may not
interrupt or interfere with the normal operations of the Branch Office and shall
be at Purchaser's sole cost and expense.
(c) Seller's Communications. In addition to the
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communications provided for in Paragraph (a) above, Seller at its own cost and
expense may communicate with the employees, depositors, and other customers of
the Branch Office at such times and in such form as it, in its sole discretion,
may deem appropriate; provided, that no such communication shall recommend any
actions by any person that shall be in contravention with the terms of this
Agreement or reflect adversely upon Purchaser. If this transaction constitutes a
branch closing as defined by the OTS, Seller shall post all signs and provide
Branch Office customers with any notices required by the regulations. Customer
notice of the Branch Office closing shall not be sent by Seller until receipt of
all regulatory and other approvals required for this sale.
Section 8.3 Trade Names, Trademarks, and Signs. Purchaser shall not
acquire hereunder any right to the use of the name "Dime", or any trade name,
trademark, slogan or service xxxx, if any, used by Seller. Seller shall give
employees or agents of Purchaser physical access to the premises of the Branch
Office during the weekend or holiday most nearly preceding the Closing Date for
the purpose of removing, or beginning the removal of, the sign fronts, logos,
and other insignia identifying or identified with Seller; provided that no sign
fronts, logos, or insignia identifying or identified with
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Purchaser will be installed in or affixed to the premises until after the
Closing. No sign boxes, frames, or stands shall be removed by Seller after the
execution of this Agreement (or by Purchaser prior to the Closing), as the same
are to be transferred to the Purchaser hereunder. Purchaser will return all sign
fronts, logos, and insignia of Seller removed by it from the Branch Office on or
before fifteen (15) days after Closing to such location as Seller shall
reasonably designate. Purchaser shall be responsible for any damage to any sign
fronts, logos, and insignia occurring during the removal and delivery of same to
Seller.
Section 8.4 Employees. The Purchaser agrees to offer employment to any
or all employees of the Seller at the Branch who are still so employed as of the
Closing Date, on terms and conditions comparable to those provided by the Seller
to such employees; provided, however, that any such employee hired by Purchaser
shall receive Purchaser's benefits. Purchaser agrees to waive any waiting period
applicable to its benefits for all Branch employees which it hires. The Seller
will not renegotiate the position or compensation of any Branch employees prior
to the Closing Date, other than ordinary salary increases. Employment by the
Purchaser will commence on the Closing Date. The Purchaser agrees to keep
employed for a period of at least six
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months any employee, unless such employee is discharged for cause. Within ten
(10) days of the date of this Agreement, Seller shall provide Purchaser with a
schedule of each individual employed at the Branch Office as of the date of this
Agreement.
Section 8.5 Nature and Survival of Representations and Warranties.
Except as otherwise provided herein or in the Exhibits attached hereto, all
covenants, representations, and warranties made by Seller and Purchaser in this
Agreement or pursuant hereto shall survive the Closing hereunder.
Section 8.6 Termination.
(a) Grounds For. In addition to the grounds provided for
otherwise in this Agreement, this Agreement may be terminated in any of the
following ways:
(i) At any time on or prior to the Closing Date by
the mutual consent in writing of Purchaser and
Seller;
(ii) On or before the Closing Date, by either Seller
or Purchaser in writing, if the conditions made for
the benefit of either shall not have been satisfied
or it shall become clear that any such conditions can
not be satisfied;
(iii) At any time on or prior to the Closing Date, by
either Purchaser or Seller in writing, if there
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has been any breach by the other party to this
Agreement of any representation and warranty in any
material respect or any breach of any covenant,
undertaking or restriction in any material respect;
(iv) On September 30, 1998, if the Closing has not
occurred by that date.
(b) Effect Of Termination. In the event of the termination and
abandonment of this Agreement, it shall terminate and become void and have no
effect; provided, however, that the obligations of the parties pursuant to
Sections 2.9 and 3.4 (Confidentiality) shall remain in effect; and provided,
further, that termination based upon a breach shall not relieve the breaching
party from liability to the non-breaching party for damages arising from the
breach.
Section 8.7 Tax Forms. Within applicable time limits, (a) Seller shall
mail to customers of the Branch Office as of the close of business on the
Closing Date, and shall file with the appropriate authorities, 1099 information
returns and other required tax forms covering the period prior to the Closing
Date, and (b) Purchaser shall mail to customers of the Branch Office and shall
file with the appropriate authorities, 1099 information returns and other
required tax forms covering the period from and
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after the Closing Date.
Section 8.8 Brokers-Finders. Except for Xxxx, Xxxx & Co., Seller and
Purchaser hereby individually represent and warrant that no broker or finder has
been employed by either of them in connection with this Agreement and the
consummation of the transactions contemplated hereby. Seller agrees to be
responsible for all fees due Xxxx, Xxxx & Co. which Seller has previously agreed
to pay such entity. Seller and Purchaser further agree to indemnify the other
against any claim arising out of the employment by the indemnifying party of any
other such broker or finder.
Section 8.9 Default; Attorneys' Fees. Default hereunder shall be deemed
to have occurred if either party shall refuse to consummate this transaction,
where all conditions to such performance shall have been satisfied, and such
refusal shall remain uncured for a ten (10) day period following receipt by such
defaulting party of written notice from the nondefaulting party of such default.
In the event of default by one party, the other party shall have all remedies
provided at law or in equity in regard to such default. The parties agree that
the non-breaching party has no adequate remedy at law, and shall be entitled to
specific performance of this Agreement in addition to
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any other available remedies. A defaulting party shall pay all reasonable
expenses incurred by the other party to enforce its rights under this Agreement
as a result of such default including, without limitation, court costs and
attorneys' fees.
Section 8.10 Modification and Waiver. No modification of any provision
of this Agreement shall be binding unless in writing and executed by the party
sought to be bound thereby. No waiver of any provision of this Agreement shall
be binding unless in writing and executed by the party granting such waiver.
Section 8.11 Binding Effect; Assignment. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns; provided, however, that neither this
Agreement nor any rights, privileges, duties, or obligations of the parties
hereto may be assigned by either party hereto without the written consent of the
other party hereto, and provided, further, that in the case of any assignment,
the assigning party shall also remain responsible as a party hereto.
Section 8.12 Entire Agreement; Governing Law. This Agreement, together
with the exhibits attached hereto and made a part hereof, contains the entire
agreement between the parties hereto with respect to the transactions covered
and contemplated hereunder, and supersedes all prior agreements or
understandings
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between the parties hereto relating to the subject matter hereof. This Agreement
shall be governed by and construed in accordance with the laws of the State of
New York, except to the extent that federal law applies.
Section 8.13 Headings. The headings in this Agreement are intended
solely for convenience of reference and shall be given no effect in the
construction or interpretation of this Agreement.
Section 8.14 Severability. In the event that any provision of this
Agreement which both parties agree is not material, shall be held invalid,
illegal, or unenforceable in any respect, the validity, legality, and
enforceability of the remaining provisions contained in this Agreement shall not
in any way be affected or impaired thereby, and this Agreement shall otherwise
remain in full force and effect.
Section 8.15 Counterparts. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same agreement
and shall become effective when one or more counterparts have been signed by
each of the parties hereto.
Section 8.16. Interpretation. This Agreement has been prepared and
negotiations in connection therewith have been conducted by the joint efforts of
both parties to this Agreement and the parties agree that it is not to be
interpreted against
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either of the parties hereto.
Section 8.17 Notices. All notices, consents, requests, instructions,
approvals, waivers, stipulations and other communications provided for herein to
be given by one party hereto to the other party shall be deemed validly given,
made or served, if in writing and delivered personally or sent by certified
mail, return receipt requested, if to Seller addressed to:
Xxxxxxx Xxxxx
The Dime Savings Bank of New York, FSB
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
with a copy to:
Xxxxx X. Xxxxxxx
Associate General Counsel
The Dime Savings Bank of New York, FSB
XXX Xxxxx, Xxxx Xxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxx Xxxx 00000
and if to Purchaser addressed to:
Xxxx X. Xxxxxxxx
Republic Bank
000 0xx Xxxxxx X.X. Xxxxx 000
Xx. Xxxxxxxxxx, XX 00000
with a copy to:
Xxxxx Xxxxxx, Esq.
General Counsel
000 0xx Xxxxxx, X.X., Xxxxx 000
Xx. Xxxxxxxxxx, XX 00000
after mailing of the same. Either party may change the
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persons or addresses to whom or to which notices may be sent by written notice
to the other.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed, by their duly authorized representatives, as of the day and year first
above written.
REPUBLIC BANK
ATTEST: By: /s/ Xxxx X. Sapansky
-------------------------------
/s/ Name: Xxxx X. Sapansky
-------------------------- -----------------------------
SECT Title: President
----------------------------
THE DIME SAVINGS BANK
OF NEW YORK, FSB
ATTEST: By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------
/s/ Name: Xxxxxxx X. Xxxxxxxxx
-------------------------- -----------------------------
Senior VP Title: CFO
----------------------------
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56
EXHIBIT A
ASSIGNMENT OF LEASE
FOR VALUE RECEIVED, DIME SAVINGS BANK OF NEW YORK, FSB (hereinafter
called "Assignor"), hereby assigns, transfers, and sets over unto ___________
("Assignee"), all of Assignor's right, title and interest in and to the lease
set forth on the Schedule which is attached hereto as Attachment I and made a
part hereof (hereinafter called the "Lease").
TOGETHER with all options contained in the Lease and any other rights
of the Assignor set forth therein.
TO HAVE AND TO HOLD the same unto the Assignee, its successors and
assigns, from the _______ day of _____, 19__, for all the rest of the years
mentioned in said Lease subject to the terms, covenants, conditions and
provisions therein set forth.
Assignor hereby covenants and warrants that the Lease is in full force
and effect; that it has secured all necessary consents required by the Lease;
that Assignor is not in default thereunder and has no knowledge of defaults by
any other party thereto; and that the Lease is free and clear of any
encumbrances.
Assignee hereby assumes the performance of all the terms, covenants,
and conditions of the said Lease on the part of the Assignor to be performed,
and Assignee agrees to pay the rent on the next rent day, and thereafter, and to
perform all the said terms, conditions, and covenants and to indemnify the
Assignor
57
for any damage arising out of any default on the part of the Assignee to pay the
said rent, or to perform the said covenants, terms, and conditions which arise
from and after the date hereof. Assignor covenants to indemnify Assignee for any
damages arising out of any default on the part of Assignor to pay the rent or to
perform the covenants, terms, and conditions of said Lease before the date
hereof.
IN WITNESS WHEREOF, the parties have signed, sealed, and delivered this
Assignment the ____ day of __________, 19 _.
Signed Sealed and ASSIGNOR;
delivered in the presence of:
THE DIME SAVINGS BANK OF
NEW YORK, FSB
By
---------------------------------- --------------------------------
ATTEST:
---------------------------------- ----------------------------------
Notary Public
(Notary Seal)
Signed, Sealed and ASSIGNEE:
delivered in the presence of
By
---------------------------------- --------------------------------
Witness
ATTEST:
---------------------------------- ----------------------------------
Notary Public
(Notary Seal)
58
EXHIBIT B TO
PURCHASE AND ASSUMPTION
AGREEMENT
-----------------------
INTENTIONALLY OMITTED
59
EXHIBIT C TO
PURCHASE AND ASSUMPTION
AGREEMENT
-----------------------
LITIGATION
NONE
60
EXHIBIT D TO
PURCHASE AND ASSUMPTION
AGREEMENT
-----------------------
ASSIGNMENT AND ASSUMPTION OF LIABILITIES
For value received, The Dime Savings Bank of New York, FSB ("Dime")
hereby assigns to _______________, pursuant to the terms of a certain Purchase
and Assumption Agreement between _______________ and Dime dated _____________,
19__ (the "Agreement"), all the right, title, and interest in and to the Deposit
Liabilities (as defined in the Agreement) maintained at Dime's Branch Office
described in the Agreement.
______________ hereby accepts the foregoing assignment, agrees to
assume and perform all duties and obligations to be performed under the terms of
each such assigned Deposit Liability to the same extent as if ____________ had
been an original party thereto, and [___________] agrees to indemnify and hold
Dime harmless from any liability for performance or non-performance of such
duties and obligations occurring after such assignment, and Dime agrees to
indemnify and hold _________________ harmless from any liability for performance
or nonperformance of such duties and obligations occurring prior to such
assignment, all in accordance with and subject to the Agreement.
Dated: ______________, 19 __
----------------------------------------
By:
-------------------------------------
Title:
----------------------------------
THE DIME SAVINGS BANK OF
NEW YORK, FSB
By:
-------------------------------------
Title:
----------------------------------
