EXHIBIT 10.10
Asset and Liability Allocation Agreement
New London Trust, FSB
Dated as of April 12, 1999
between
Lake Sunapee Bank, fsb
and
Mascoma Savings Bank
and
▇▇▇▇▇▇▇ Bank
Table of Contents
Page No.
ARTICLE I
DEFINITIONS
ARTICLE II
ALLOCATION OF BANK ASSETS
2.1 Allocation of Bank Assets ........................................... -2-
ARTICLE III
ALLOCATION OF BANK LIABILITIES
3.1 Allocation of Bank Liabilities....................................... -4-
ARTICLE IV
EMPLOYEES
4.1 Allocation of Employees.............................................. -4-
4.2 Compliance with Terms of Stock Purchase Agreement.................... -4-
4.3 Corporate Center Obligations......................................... -5-
4.4 Retention Pay Obligations............................................ -5-
ARTICLE V
PURCHASE PRICE
5.1 Allocation of Purchase Price......................................... -5-
5.2 Allocation of Reductions in Purchase Price........................... -5-
5.3 Allocation of Delay Penalty.......................................... -5-
5.4 Closing Dividend..................................................... -5-
5.5 Allocation of Post-Closing Adjustment................................ -5-
ARTICLE VI
POST-CLOSING MATTERS
6.1 Mutual Cooperation................................................... -6-
6.2 Post Closing Data Processing......................................... -6-
6.3 Referrals............................................................ -6-
6.4 Non-Solicitation of Bank Employees................................... -6-
6.5 Non-Solicitation of Branch Customers................................. -7-
6.6 Duty to Furnish Information.......................................... -7-
6.7 Deposits and Loan Payments Inadvertently Received.................... -7-
6.8 Obligation to Update Schedules Prior to Closing...................... -7-
6.9 Conduct of Business.................................................. -7-
6.10 Regulatory Approvals................................................. -7-
6.11 Adjustments in Bank Assets and Bank Liabilities...................... -8-
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ARTICLE VII
INDEMNIFICATION
7.1 Allocation of Indemnification Payments.............................. -9-
ARTICLE VIII
GENERAL PROVISIONS
8.1 Entire Agreement; Modification; Waiver.............................. -9-
8.2 Counterparts........................................................ -9-
8.3 Headings............................................................ -9-
8.4 Governing Law....................................................... -10-
8.5 Addresses of Notice................................................. -10-
8.6 Expenses............................................................ -11-
8.7 Publicity........................................................... -11-
8.8 Severability........................................................ -11-
8.9 Consent to Jurisdiction: Waiver of Jury Trial....................... -11-
8.10 Damages; Enforcement of the Agreement............................... -12-
8.11 Binding Nature; Assignment.......................................... -12-
8.12 No Third Party Rights............................................... -12-
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SCHEDULES
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Schedule 2.1(b) - Loans
Schedule 2.1(b)(i) - Loan Loss Reserves
Schedule 2.1(c)(i) - Leases
Schedule 2.1(c)(ii) - Realty
Schedule 2.1(d) - Personalty
Schedule 2.1(e) - Records
Schedule 2.1(f) - Contracts
Schedule 2.1(i) - Securities
Schedule 2.1(j) - Accounts Receivable
Schedule 2.1(k) - FHLB Stock
Schedule 2.1(m) - Data Processing Equipment
Schedule 2.1(o) - NYCE Stock
Schedule 3.1(a) - Allocation of Deposit Liabilities
Schedule 3.1(b) - Borrowings
Schedule 3.1(d) - Sold Loans and Mortgage Servicing Contracts
Schedule 3.1(e) - Other Bank Liabilities
Schedule 4.1 - Allocation of Bank Employees
Schedule 4.3 - Corporate Center Obligations
Schedule 5.1 - Purchase Price
Schedule 6.2 - Post Closing Data Processing
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ASSET AND LIABILITY ALLOCATION AGREEMENT
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THIS ASSET AND LIABILITY ALLOCATION AGREEMENT (the "Agreement") is
made as of April 12, 1999, by and among ▇▇▇▇▇▇▇ Bank, a Connecticut chartered
savings and loan association with its main offices in Putnam, Connecticut
("CB"), Lake Sunapee Bank, fsb, a federally chartered savings bank with its main
offices in Newport, New Hampshire ("LSB") and Mascoma Savings Bank, a federally
chartered savings bank with its main offices in Lebanon, New Hampshire ("MSB").
CB, LSB and MSB are referred to herein individually as a "Bank Party" and
collectively as the "Bank Parties."
PREAMBLE
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WHEREAS, the Sun Life Assurance Company of Canada (U.S.), a Delaware
corporation with its principal place of business in Wellesley, Massachusetts
("Sun"), and New London Trust, FSB, a federally chartered savings bank with its
main office in New London, New Hampshire ("Target") have entered into a Stock
Purchase Agreement with PM Holdings Inc., a Connecticut corporation with its
main office in Hartford, Connecticut ("PMH"), PM Trust Holding Company, a
Connecticut corporation with its main office in Hartford, Connecticut ("PMTH"),
and Bank Parties of even date (the "Stock Purchase Agreement"), a true copy of
which attached hereto as Exhibit A, which Stock Purchase Agreement provides for
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the sale to PMH and PMTH of all of the capital stock of Target;
WHEREAS, PMH and PMTH have entered into a Purchase and Assumption
Agreement with Bank Parties of even date (the "Purchase and Assumption
Agreement"), a true copy of which is attached hereto as Exhibit B, whereby Bank
---------
Parties have agreed to purchase from Target, immediately after the consummation
of the sale of Target Outstanding Stock (as defined in the Stock Purchase
Agreement) pursuant to the Stock Purchase Agreement, all of the Target's Bank
Business (as defined in the Purchase and Assumption Agreement); and
WHEREAS, Bank Parties desire to reach an agreement regarding the
allocation of the Bank Assets (as defined in the Purchase and Assumption
Agreement) and Bank Liabilities (as defined in the Purchase and Assumption
Agreement) among Bank Parties such that (i) each Bank Party is transferred an
amount of Bank Assets that is equal to the amount of Bank Liabilities that it
assumes and that (ii) the Bank Assets and Bank Liabilities transferred represent
the portion of the Bank Business for which each party has agreed to pay its
share of the Purchase Price (as defined in the Stock Purchase Agreement and the
Purchase and Assumption Agreement) and to set forth certain other agreements in
conjunction with their entering into the Stock Purchase Agreement and the
Purchase and Assumption Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, subject to the terms and conditions set forth herein, the
parties agree as follows:
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ARTICLE I
DEFINITIONS
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Terms not otherwise defined herein shall have the meaning specified in the
Stock Purchase Agreement or the Purchase and Assumption Agreement, as
appropriate.
ARTICLE II
ALLOCATION OF BANK ASSETS
-------------------------
2.1 Allocation of Bank Assets. Bank Parties shall allocate all of Target's
-------------------------
right, title and interest in and to the Bank Assets existing as of the
Closing Date among Bank Parties as follows:
(a) Cash on Hand. All Cash shall be allocated to the Bank Party acquiring
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the Banking Office at which such Cash is located.
(b) Loans. The Loans shall be allocated among Bank Parties in accordance
-----
with Schedule 2.1(b).
---------------
(i) Loan Loss Reserves. The loan loss reserves shall be allocated as
------------------
provided in Schedule 2.1(b)(i); provided, however, any excess
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loan loss reserves shall be subject to the provisions of Section
13.3 of the Purchase and Assumption Agreement.
(ii) Other Real Estate Owned. Other Real Estate Owned will be
-----------------------
allocated to the Bank Party acquiring the Banking Office at which
the borrowing relationship with respect to such Other Real Estate
Owned is maintained.
(c) Real Property.
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(i) Leases. All Banking Office Leases and Tenant Leases shall be
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allocated in accordance with Schedule 2.1(c)(i).
------------------
(ii) Realty. All real estate, buildings, fixed assets and
------
improvements related to the Banking Offices shall be allocated as
set forth in Schedule 2.1(c)(ii).
-------------------
(d) Personalty. All Personalty shall be allocated in accordance with
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Schedule 2.1(d).
---------------
(e) Records. Except as set forth in Schedule 2.1(e), all books and records
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related to the portion of the Bank Business acquired by a Bank Party
shall be allocated to that Bank Party.
(f) Contracts. Contract rights, licenses, permits, approvals,
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authorizations and franchises shall be allocated as set forth on
Schedule 2.1(f). Any prepaid contract expense shall be allocated by
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Banking Office.
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(g) Safe Deposit Box Assets and Agreements. All Safe Deposit Agreements
--------------------------------------
shall be allocated to the Banking Office at which the related safe
deposit box is located.
(h) Lease Improvements. Lease improvements (to the extent not otherwise
------------------
included as Personalty) shall be allocated to the Banking Office in
which they are located.
(i) Securities. The Securities shall be allocated as agreed by Bank
----------
Parties at Closing as set forth on Schedule 2.1(i) to be prepared at
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that time to further the objectives stated in the Preamble to this
Agreement.
(j) Accounts Receivable. The Accounts Receivable shall be allocated as
-------------------
agreed by Bank Parties at Closing as set forth on Schedule 2.1(j) to
--------------
be prepared at that time to further the objectives stated in the
Preamble to this Agreement.
(k) FHLB Stock. FHLB Stock shall be allocated as set forth on Schedule
---------- --------
2.1(k).
------
(l) Day Care Center. LSB and MSB shall assume joint responsibility for
---------------
the administration and disposition of the Day Care Center. After the
Closing, the Day Care Center shall be renamed the "New London Day Care
Center." LSB and MSB intend to divest themselves of the Day Care
Center as soon as practicable after the Closing Date. Until such time
as such divestiture occurs, LSB and MSB shall allocate all profits and
operating expenses equally between them and promptly pay any amounts
due. LSB shall be assigned the Lease related to the Day Care Center
and shall have a primary responsibility for the administration of the
Day Care Center and shall account to MSB for all profits and operating
expenses.
(m) Data Processing Equipment, Tapes and File Packages. All data
--------------------------------------------------
processing equipment, software programs and the related property shall
be allocated as provided in Schedule 2.1(m).
---------------
(n) Subsidiaries. Ownership of the Subsidiaries shall be allocated as
------------
follows: (i) ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Corporation to MSB; (ii) NLT
Services, Inc. to LSB; and (iii) New London Trust Financial Service
Corporation to CB.
(o) NYCE Stock. All NYCE Stock owned by Target on the Closing Date shall
----------
be allocated as set forth in Schedule 2.1(o).
---------------
(p) FDIC Insurance Premiums. All insurance premiums paid by Target to the
-----------------------
FDIC which are allocated to insurance coverage for Deposit Liabilities
of the Banking Offices on the Closing Date shall be allocated to Bank
Parties in proportion to the deposit liabilities assumed by Bank
Parties.
(q) Other Bank Assets. All other Bank Assets shall be allocated in
-----------------
accordance with Schedule 2.1(q). Any Bank Assets allocated to any
---------------
Bank Party pursuant to Section
-3-
2.1(c) of the Purchase and Assumption Agreement shall be allocated
pursuant to Section 6.11 of this Agreement.
ARTICLE III
ALLOCATION OF BANK LIABILITIES
------------------------------
3.1 Allocation of Bank Liabilities. Bank Parties shall allocate the Bank
------------------------------
Liabilities existing as of the Closing Date among the Bank Parties as set
forth below. Such allocations may be amended by LSB and MSB to make
adjustments in the allocation of Bank Liabilities pursuant to the
provisions of Section 11.6(b) of the Purchase and Assumption Agreement.
(a) Deposit Liabilities. At the Closing, the Deposit Liabilities
-------------------
(including IRAs) shall be allocated to each Banking Office acquired
in accordance with Schedule 3.1(a).
---------------
(b) Borrowings. All borrowings from the FHLB of Boston shall be
----------
allocated as set forth on Schedule 3.1(b).
---------------
(c) Sold Loans and Mortgage Servicing Contracts. Any liabilities arising
-------------------------------------------
from sold loans or mortgage servicing contracts shall be allocated in
accordance with Schedule 3.1(c). A proportionate share of the loan
---------------
loss reserves of CB, LSB or MSB received from Target shall be used to
compensate the CB, LSB or MSB, as applicable, for any actual loss
incurred with respect to the sold loans or loan servicing contract
liability allocated to it. An actual loss in excess of the loan loss
reserves, if any, shall be allocated as provided in Section 13.3 of
the Purchase and Assumption Agreement
(d) Other Bank Liabilities. All other Bank Liabilities shall be
----------------------
allocated in accordance with Schedule 3.1(e). Any Bank Liability
allocated to any Bank Party pursuant to Section 2.2(c) of the
Purchase and Assumption Agreement shall be allocated pursuant to
Section 6.11 of this Agreement.
ARTICLE IV
EMPLOYEES
---------
4.1 Allocation of Employees. Each Bank Party shall be allocated
-----------------------
responsibility for the individual Bank Employees, including without
limitation the Assumed Severance Obligations and continued coverage
insurance plans related to the individual Bank Employees allocated to it,
in accordance with Schedule 4.1.
------------
4.2 Compliance with Terms of Stock Purchase Agreement Each Bank Party
-------------------------------------------------
agrees to comply with the provisions of the Stock Purchase Agreement and
the Purchase Assumption Agreement relating to the Bank Employees
allocated to it.
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4.3 Corporate Center Obligations. Each Bank Party shall be allocated
----------------------------
responsibility in accordance with Schedule 4.3 for its portion of the
------------
Assumed Severance Obligations with respect to the Corporate Center
Employees.
4.4 Retention Pay Obligations. Each of Bank Parties shall be responsible for
-------------------------
reimbursing Target at Closing for an amount not to exceed 25% of the
"stay for pay" amount referred to in Section 2.5.5 of the Stock Purchase
Agreement.
ARTICLE V
PURCHASE PRICE
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5.1 Allocation of Purchase Price. The Purchase Price of $25.2 million shall
----------------------------
be allocated among Bank Parties in accordance with Schedule 5.1.
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5.2 Allocation of Reductions in Purchase Price. In the event that the
------------------------------------------
Purchase Price is reduced pursuant to Section 2.3.2(ii) of the Stock
Purchase Agreement, (including a reduction based on Sun's election to
utilize the Y2K Deposit Measurement Period), the Deposit Reduction Amount
and the Post-Closing Deposit Reduction Amount, if any, shall be allocated
among Bank Parties in proportion to the decline in the average deposit
account balance of the Deposit Liabilities assumed by each Bank Party as
set forth in Schedule 3.1.
------------
5.3 Allocation of Delay Penalty. In the event that Bank Parties become
---------------------------
liable to PMTH for an upward adjustment to the Purchase Price pursuant to
Section 3.4 of the Purchase and Assumption Agreement because of any delay
caused by or attributable to acts or omissions of a Bank Party, the
upward adjustment in the Purchase Price shall be allocated to and paid to
PMTH or PMH by the Bank Party to which such delay is attributable.
5.4 Closing Dividend. In calculating the Closing Dividend in accordance with
----------------
Section 2.9 of the Stock Purchase Agreement, Bank Parties agree to
cooperate in determining any required disposition of the Securities.
5.5 Allocation of Post-Closing Adjustment. Any post-closing adjustment paid
-------------------------------------
or received by Bank Parties pursuant to Section 3.3 of the Purchase
Assumption Agreement shall be divided equally among Bank Parties.
-5-
ARTICLE VI
POST-CLOSING MATTERS
--------------------
6.1 Mutual Cooperation. In order to accomplish an orderly transition
------------------
relative to the processing of debits and credits to the Bank Assets and
Bank Liabilities assumed by Bank Parties under this Agreement, each Bank
Party agrees to cooperate in good faith in the post-transfer processing
of checks, drafts, deposit tickets for Deposits Liabilities made prior to
and after the Closing Date, and payments of principal and interest
received by Bank Parties after the Closing Date with respect to the
Loans. Bank Parties intend that the Uniform Commercial Code as in effect
in the State of New Hampshire, applicable federal regulations and usual
banking practices shall govern the processing of items. Other than PMTH
or PMH, the provisions of this Agreement constitute an agreement between
Bank Parties only, and no third party shall be, or shall be deemed to be,
entitled to rely on, or to receive any direct or indirect benefit from,
any of the provisions hereof.
6.2 Post Closing Data Processing. Each Bank Party agrees to provide to the
----------------------------
others data processing and transfer services to help insure the proper
transfer of customer information and transactions up through all data
processing conversions and for a reasonable time thereafter. Each Bank
Party agrees to act in good faith in facilitating the conversion and
transfer of data processing and other information concerning the Bank
Assets and Bank Liabilities to the other Bank Parties. Each Bank Party
shall designate an individual to serve as liaison from the date hereof
through a future date that shall be generally agreed upon by all Bank
Parties as the final conversion date. LSB agrees to provide transitional
data processing services to other Bank Parties as set forth in
Schedule 6.2, which shall be prepared prior to Closing. After the
------------
conversion of the data processing systems, any data processing licensing
obligations, equipment or hardware to be disposed will first be offered
to Bank Parties for purchase at book value and thereafter liquidated. Any
gain or loss associated with the disposition of such equipment shall be
divided equally between Bank Parties .
6.3 Referrals. Each Bank Party agrees that for a 180 day period following
---------
the Closing Date, it will refer any customers seeking to transact
business related to Bank Assets or Bank Liabilities allocated to another
Bank Party to seek such services exclusively from the appropriate Bank
Party.
6.4 Non-Solicitation of Bank Employees. Each Bank Party agrees that from the
----------------------------------
date hereof through the first anniversary of the Closing Date, it shall
not, directly or indirectly, solicit for employment, retain as an
independent contractor or consultant, induce to terminate employment or
otherwise interfere with employment relationships with any Bank employee
who is employed by another Bank Party pursuant to Article IV hereof;
provided that nothing in this Agreement shall be construed to prevent any
Bank Party from advertising employment or consulting opportunities in
media of general circulation or publication in the geographic area
surrounding such Bank Party. It is expressly acknowledged that a Bank
Party may employ as an employee or retain as an independent contractor or
consultant any Bank employee who shall terminate his or her employment
with a Bank
-6-
Party, provided there is no direct or indirect inducement or interference
by, or other pre-termination contact with, a Bank Party. The terms of
this Section 6.4 shall not prohibit a Bank Party from hiring a Bank
employee who has been terminated by another Bank Party after the Closing
Date.
6.5 Non-Solicitation of Branch Customers. Each Bank Party agrees that from
------------------------------------
the date hereof through 180 days following the Closing Date, it shall not
solicit Branch Customers through advertising specifically referencing or
targeted to such Branch Customers in a way which is reasonably likely to
induce such Branch Customers to transfer Deposit Liabilities or Loans
from Target to a Bank Party or from one Bank Party to another Bank Party;
provided that nothing in this Agreement shall be construed to prevent any
-------- ----
Bank Party from (a) engaging in advertising, solicitations, or marketing
campaigns not primarily directed to or targeted at Branch Customers, (b)
responding to unsolicited inquiries by Branch Customers with respect to
banking or other financial services, and (c) providing notices or
communications relating to the transactions contemplated hereby.
6.6 Duty to Furnish Information. Each Bank Party shall FURNISH THE OTHER BANK
---------------------------
PARTIES WITH INFORMATION IN ITS POSSESSION, RELATED TO THEIR RESPECTIVE
ALLOCATED SHARE OF THE BANK BUSINESS WHICH INFORMATION IS REASONABLY
NECESSARY TO ENABLE THEM TO EXERCISE THEIR RIGHTS AND PERFORM THEIR
DUTIES UNDER THIS AGREEMENT, THE STOCK PURCHASE AGREEMENT AND THE
PURCHASE AND ASSUMPTION AGREEMENT.
6.7 Deposits and Loan Payments Inadvertently Received. Each Bank Party shall
-------------------------------------------------
make all reasonable efforts to facilitate the acceptance after the
Closing Date of any deposits or loan payments for accounts allocated to
another Bank Party. Each Bank Party shall agree to accept deposits and
loan payments after the Closing Date for accounts allocated to another
Bank Party for a period not to exceed 90 days. Bank Parties shall
undertake reasonable measures to facilitate the timely crediting of
deposits and payments.
6.8 Obligation to Update Schedules Prior to Closing. From time to time prior
-----------------------------------------------
to the Closing Date, Bank Parties will supplement or amend the Disclosure
Schedules delivered in connection herewith with respect to any matter
hereafter arising which is necessary to reflect a change in the
allocation of Bank Assets and Bank Liabilities assumed by Bank Parties.
6.9 Conduct of Business. During the period from the date of this Agreement
-------------------
through 180 days following the Closing Date, each Bank Party agrees to
conduct its business in good faith in the usual, regular and ordinary
course consistent with past practices and to take no action which would
adversely affect or delay the ability of the other Bank Parties to
perform their obligations under this Agreement.
-7-
6.10 Regulatory Approvals.
--------------------
(a) As soon as practicable after the date hereof, Bank Parties shall use
all reasonable efforts to prepare all necessary documentation, to
effect all necessary filings and to obtain all necessary permits,
consents, approvals and authorizations of all third parties and
governmental bodies necessary to consummate the transactions
contemplated by this Agreement. Bank Parties will each cooperate
with the other and will each furnish the other and the other's
counsel with all information concerning themselves, their
subsidiaries, directors, officers and stockholders and such other
matters as may be necessary or advisable in connection with any
application, petition or any other statement or application made by
or on behalf of a Bank Party to any governmental body in connection
with the transactions contemplated by this Agreement. Bank Parties
shall have the rights to review and approve in advance all
characterizations of the information relating to themselves, as the
case may be, and any of their respective subsidiaries, which appear
in any filing made in connection with the transactions contemplated
by this Agreement with any governmental body. In addition, Bank
Parties shall each furnish to the other a final copy of each such
filing made in connection with the transactions contemplated by this
Agreement with any governmental body.
(b) If, between the date of this Agreement and the Closing Date, either
(i) LSB or MSB determine that a ▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇ Index change
with regard to the Banking Offices or deposit liabilities to be
assumed by each of LSB and MSB under this Agreement will create an
impermissible competitive effect, or (ii) a government agency, the
approval of which will be a requirement to Closing, so indicates,
LSB and MSB shall cooperate to amend this Agreement so as to re-
allocate certain Bank Assets and/or Bank Liabilities to each of LSB
and MSB to eliminate the impermissible competitive effect.
6.11 Adjustments in Bank Assets and Bank Liabilities. While it is the intent
-----------------------------------------------
of Bank Parties to allocate the Bank Business between Bank Parties,
respectively, Bank Parties recognize that there may be certain assets
and liabilities that are not easily allocated between Bank Parties that
may be identified between the date of this Agreement and the Closing
Date or may be identified after the Closing. In such case, Bank Parties
will endeavor in good faith to allocate any such asset or liability
equitably between each other in such a manner as to carry out the intent
of this Agreement. As a general principle, Bank Parties agree that any
such asset or liability that is incidental to or a consequence of an
asset or liability assigned to a Banking Office will belong to the Bank
Party acquiring the related asset or liability. Any other asset or
liability that relates to more than one Banking Office shall be
allocated between Bank Parties based on the relative benefit or burden
derived from such asset or liability to the Banking Offices except that
if such relative benefit or burden cannot be ascertained, then Bank
Parties shall share equally in such benefit or burden. If Bank Parties
are unable to agree on an allocation after a good faith effort, the
matter shall be referred to arbitration pursuant to Section 14.16 of the
Purchase and Assumption Agreement.
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ARTICLE VII
INDEMNIFICATION
---------------
7.1 Allocation of Indemnification Payments.
--------------------------------------
(a) Except as otherwise provided in this Agreement, in the event that Bank
Parties become liable to PMTH or PMH pursuant to Article XII of the
Purchase and Assumption Agreement, such liability shall be allocated to
and paid by each Bank Party in proportion to the liability attributable
to it. If the liability cannot be proportioned among Bank Parties, such
liability will be allocated evenly among Bank Parties.
(b) In the event that PMTH or PMH becomes liable to Bank Parties pursuant
to Article XII of the Purchase and Assumption Agreement, the amount
payable to Bank Parties by PMTH or PMH shall be allocated among Bank
Parties in proportion to the losses incurred by each Bank Party for
which such indemnification is being paid.
(c) In the event that Sun becomes liable to Bank Parties pursuant to
Article XIII of the Stock Purchase Agreement, the amount payable to
Bank Parties by Sun shall be allocated among Bank Parties in proportion
to the losses incurred by each Bank Party for which such
indemnification is being paid.
ARTICLE VII
GENERAL PROVISIONS
------------------
8.1 Entire Agreement; Modification; Waiver. This Agreement, including all
--------------------------------------
Schedules hereto and the agreements and other documents referred to
herein and therein, constitutes the entire agreement of the parties
pertaining to the subject matter contained herein and this Agreement
supersedes all prior or contemporaneous agreements, representations and
understandings of the parties. No supplement, modification or amendment
to, or waiver of this Agreement shall be binding unless executed in
writing by Bank Parties. No waiver of any provision of this Agreement
shall be deemed or shall constitute a waiver of any other provision,
whether or not similar, nor shall any waiver constitute a continuing
waiver.
8.2 Counterparts. This Agreement may be executed in two or more counterparts,
------------
each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument.
-9-
8.3 Headings. The headings of the Sections, Articles, and Schedules of this
--------
Agreement are inserted for convenience only and shall not constitute a
part of this Agreement.
8.4 Governing Law. This Agreement shall be governed by and construed in
-------------
accordance with the laws of the State of New Hampshire without giving
effect to the principles of conflict of laws thereof.
8.5 Addresses of Notice. All notices, requests, demands and other
-------------------
communications provided for under this Agreement and under the related
documents shall be in writing (including telegraphic communication) and
mailed (by registered or certified mail, return receipt requested, or
delivered by Federal Express or other similar express overnight delivery
service), or telegraphed, telecopied or delivered to the applicable party
at the addresses indicated below.
If to LSB:
Lake Sunapee Bank, fsb
▇ ▇▇▇▇ ▇▇▇▇▇▇ (▇▇ ▇▇▇ ▇)
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President and Chief Executive Officer
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Wood
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
If to MSB:
Mascoma Savings Bank
▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: W. ▇▇▇▇ ▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
If to CB:
▇▇▇▇▇▇▇ Bank
Westbank Tower, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
-10-
With a copy to: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Wood
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
or, to each party, at such other address that party designates in a
written notice to the other party in accordance with this section. All
such notices, requests, demands or other communications shall be deemed
delivered (i) if sent by messenger, upon personal delivery to the party
to whom the notice is directed, (ii) if sent by telecopier, upon
electronic or telephonic confirmation of receipt from the receiving
telecopier machine, (iii) if sent by reputable overnight courier, one
business day after delivery to such courier, or (iv) if sent by mail,
three 3 business days following deposit in the United States mail,
postage prepaid, certified mail, return receipt requested.
8.6 Expenses. Except as otherwise provided herein, each Bank Party shall pay
--------
its own out-of-pocket expenses incurred in connection with this
Agreement, including legal, accounting and investment banking, whether or
not the transactions contemplated by this Agreement are consummated. In
the event that expenses incurred in connection with this Agreement are
not attributable to a particular Bank Party, such expenses shall be
allocated equally among Bank Parties.
8.7 Publicity. Except as may be required by law or by the rules or
---------
regulations of any governmental authority or securities exchange prior to
the Closing Date, neither party shall, directly or indirectly, make or
cause to be made any public announcement or disclosure, or issue any
notice, relating to any of the transactions contemplated by this
Agreement, unless approved by the other in advance. Both parties will
limit the distribution of information relative to this transaction to
those persons who must be aware of the Agreement for the performance of
their duties.
8.8 Severability. If any paragraph, section, sentence, clause, phrase, word
------------
or covenant contained in this Agreement shall become illegal, null or
void, or against public policy, for any reason, or shall be held by any
court of competent jurisdiction to be illegal, null or void, or against
public policy, the remaining paragraphs, sections, sentences, clauses,
phrases, words and covenants contained in this Agreement shall not be
affected.
8.9 Consent to Jurisdiction: Waiver of Jury Trial. EACH PARTY HERETO, TO THE
---------------------------------------------
EXTENT IT MAY LAWFULLY DO SO, HEREBY SUBMITS TO THE JURISDICTION OF THE
COURTS OF THE STATE OF NEW HAMPSHIRE AND THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE, AS WELL AS TO THE JURISDICTION OF ALL
COURTS FROM WHICH AN APPEAL MAY BE TAKEN OR OTHER REVIEW SOUGHT FROM THE
AFORESAID COURTS, FOR THE PURPOSE OF ANY SUIT, ACTION OR OTHER PROCEEDING
ARISING OUT OF SUCH PARTY'S OBLIGATIONS UNDER OR WITH RESPECT TO THIS
AGREEMENT OR ANY OF THE AGREEMENTS, INSTRUMENTS OR DOCUMENTS
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CONTEMPLATED HEREBY, AND EXPRESSLY WAIVES ANY AND ALL OBJECTIONS IT MAY
HAVE AS TO VENUE IN ANY SUCH COURTS.
EACH PARTY HERETO HEREBY WAIVES TRIAL B JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR IN ANY WAY CONCERNED WITH THIS AGREEMENT
OR ANY OF THE AGREEMENTS, INSTRUMENTS OR DOCUMENTS CONTEMPLATED HEREBY.
NO PARTY HERETO, NOR ANY ASSIGNEE OR SUCCESSOR OF A PARTY HERETO, SHALL
SEEK A JURY TRIAL IN ANY LAWSUIT, PROCEEDING, COUNTERCLAIM OR ANY OTHER
LITIGATION PROCEDURE BASED UPON, OR ARISING OUT OF, THIS AGREEMENT OR ANY
OF THE AGREEMENTS, INSTRUMENTS OR DOCUMENTS CONTEMPLATED HEREBY. NO PARTY
WILL SEEK TO CONSOLIDATE ANY SUCH ACTION IN WHICH A JURY TRIAL HAS BEEN
WAIVED WITH ANY OTHER ACTION IN WHICH A JURY TRIAL A CANNOT BE OR HAS NOT
BEEN WAIVED. THE PROVISIONS OF THIS SECTION HAVE BEEN FULLY DISCUSSED BY
THE PARTIES HERETO, AND THE PROVISIONS SHALL BE SUBJECT TO NO EXCEPTIONS.
NO PARTY HAS IN ANY WAY AGREED WITH OR REPRESENTED TO ANY OTHER PARTY
THAT THE PROVISIONS OF THIS SECTION WILL NOT BE FULLY ENFORCED IN ALL
INSTANCES.
8.10 Damages; Enforcement of the Agreement.
-------------------------------------
(a) Any Bank Party suffering or incurring any loss, fee, cost, expense,
liability or obligation which has a material adverse effect on the
Bank Assets or Bank Liabilities allocated to it herein ("Damages"),
which arise from the actions or omissions of another Bank Party or
Bank Parties, shall be entitled to prompt payment for the amount of
any Damages from such other Bank Party or Bank Parties.
(b) The parties agree that irreparable damage would occur in the event
that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the parties shall be entitled to an injunction
or injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions hereof in any court of the
United States or any state having jurisdiction, this being in addition
to any other remedy to which they are entitled at law or in equity.
8.11 Binding Nature; Assignment. This Agreement shall be binding upon and
--------------------------
inure to the benefit of the parties hereto and their permitted
successors and assigns; provided, however, that neither this Agreement
nor any rights, privileges, duties or obligations of the parties
hereto may be assigned by an such party prior to the Closing Date
unless expressly pursuant to Section 14.6 of the Purchase and
Assumption Agreement.
8.12 No Third Party Rights. Other than with respect to PMTH and PMH, this
---------------------
Agreement is not intended, nor shall it be construed, to create any
express or implied third party
-12-
beneficiary rights in any person, including present and former
employees of Target, the Bank Employees, or any beneficiaries or
dependents thereof.
-13-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
Lake Sunapee Bank, fsb
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Mascoma Savings Bank
By:
-------------------------------------
▇▇▇▇▇▇▇ Bank
By:
-------------------------------------
S-1
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
Lake Sunapee Bank, fsb
By:
-------------------------------------
Mascoma Savings Bank
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, PR.
-------------------------------------
▇▇▇▇▇▇▇ Bank
By:
------------------------------------
S-1
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
Lake Sunapee Bank, fsb
By:
-------------------------------------
Mascoma Savings Bank
By:
-------------------------------------
▇▇▇▇▇▇▇ Bank
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Executive Vice President
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