EXHIBIT 10(ag)
PURCHASE AND ASSUMPTION AGREEMENT
AMONG
FEDERAL DEPOSIT INSURANCE CORPORATION,
RECEIVER OF RELIANCE BANK,
WHITE PLAINS, NEW YORK
FEDERAL DEPOSIT INSURANCE CORPORATION
and
UNION STATE BANK,
NANUET, NEW YORK
DATED AS OF
MARCH 19, 2004
TABLE OF CONTENTS
ARTICLE I DEFINITIONS
ARTICLE II ASSUMPTION OF LIABILITIES. ...............................8
2.1 Liabilities Assumed by Assuming Bank .....................8
2.2 Interest on Deposit Liabilities .........................10
2.3 Unclaimed Deposits ......................................10
2.4 Employee Benefit Plans ..................................10
ARTICLE III PURCHASE OF ASSETS ......................................10
3.1 Assets Purchased by Assuming Bank .......................10
3.2 Asset Purchase Price ....................................12
3.3 Manner of Conveyance; Limited Warranty;
Nonrecourse; Etc ....................................12
3.4 Puts of Assets to the Receiver ..........................12
3.5 Assets Not Purchased by Assuming Bank. ..................15
3.6 Assets Essential to Receiver ............................16
ARTICLE IV ASSUMPTION OF CERTAIN DUTIES AND OBLIGATIONS ............17
4.1 Continuation of Banking Business ........................17
4.2 Agreement with Respect to Credit Card Business ..........17
4.3 Agreement with Respect to Safe Deposit Business .........17
4.4 Agreement with Respect to Safekeeping Business ..........17
4.5 Agreement with Respect to Trust Business ................18
4.6 Agreement with Respect to Bank Premises .................18
4.7 Agreement with Respect to Leased Data
Processing Equipment ................................21
Agreement with Respect to Certain
Existing Agreements .................................22
4.9 Informational Tax Reporting .............................22
4.10 Insurance ...............................................23
4.11 Office Space for Receiver and Corporation ...............23
4.12 Agreement with Respect to Continuation of
Group Health Plan Coverage for
Former Employees of the Failed Bank .................23
Agreement with Respect to Interim Asset Servicing .......24
ARTICLE V DUTIES WITH RESPECT TO DEPOSITORS
OF THE FAILED BANK ......................................24
5.1 Payment of Checks, Drafts and Orders ....................24
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5.2 Certain Agreements Related to Deposits ..................24
5.3 Notice to Depositors ....................................24
ARTICLE VI RECORDS .................................................25
6.1 Transfer of Records .....................................25
6.2 Delivery of Assigned Records ............................26
6.3 Preservation of Records .................................26
6.4 Access to Records; Copies ...............................26
ARTICLE VII BID; INITIAL PAYMENT ....................................26
ARTICLE VIII ADJUSTMENTS .............................................27
8.1 Pro Forma Statement .....................................27
8.2 Correction of Errors and Omissions; Other Liabilities
8.3 Payments ................................................28
8.4 Interest ................................................28
8.5 Subsequent Adjustments ..................................28
ARTICLE IX CONTINUING COOPERATION ..................................28
9.1 General Matters .........................................28
9.2 Additional Title Documents ..............................28
9.3 Claims and Suits ........................................29
9.4 Payment of Deposits .....................................29
9.5 Withheld Payments .......................................29
9.6 Proceedings with Respect to Certain Assets
and Liabilities .....................................30
9.7 Information .............................................30
ARTICLE X CONDITION PRECEDENT .....................................31
ARTICLE XI REPRESENTATIONS AND WARRANTIES OF THE
ASSUMING BANK ...........................................31
ARTICLE XII INDEMNIFICATION .........................................32
12.1 Indemnification of Indemnitees ..........................32
12.2 Conditions Precedent to Indemnification .................35
12.3 No Additional Warranty ..................................36
12.4 Indemnification of Corporation and Receiver .............36
12.5 Obligations Supplemental ................................36
12.6 Criminal Claims .........................................36
12.7 Limited Guaranty of the Corporation .....................37
12.8 Subrogation .............................................37
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ARTICLE XIII MISCELLANEOUS ...........................................37
13.1 Entire Agreement ........................................37
13.2 Headings ................................................37
13.3 Counterparts ............................................37
13.4 Governing Law ...........................................37
13.5 Successors ..............................................38
13.6 Modification; Assignment ................................38
13.7 Notice ..................................................38
13.8 Manner of Payment .......................................39
13.9 Costs, Fees and Expenses ................................39
13.10 Waiver ..................................................39
13.11 Severability ............................................39
13.12 Term of Agreement .......................................39
13.13 Survival of Covenants, Etc. .............................40
SCHEDULES
2.1 Certain Liabilities Assumed .............................42
3.1 Certain Assets Purchased ................................43
3.1(e) Loans Fully Secured by Assumed Deposits .................44
3.1(i) Acquired Subsidiaries ...................................45
3.2 Purchase Price of Assets or assets ......................46
3.5(k) Securities Not Purchased ................................48
EXHIBITS
4.13 Interim Asset Servicing Arrangement .....................49
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PURCHASE AND ASSUMPTION AGREEMENT
---------------------------------
THIS AGREEMENT, made and entered into as of MARCH 19, 2004, by and among
the FEDERAL DEPOSIT INSURANCE CORPORATION, RECEIVER of RELIANCE BANK, WHITE
PLAINS, NEW YORK (the "Receiver"), UNION STATE BANK, NANUET, NEW YORK, organized
under the laws of the State of New York, and having its principal place of
business in Nanuet, New York (the "Assuming Bank"), and the FEDERAL DEPOSIT
INSURANCE CORPORATION, organized under the laws of the United States of America
and having its principal office in Washington, D.C., acting in its corporate
capacity (the "Corporation").
WITNESSETH:
WHEREAS, on Bank Closing Date, the Chartering Authority closed Reliance
Bank (the "Failed Bank") pursuant to applicable law and the Corporation was
appointed Receiver thereof; and
WHEREAS, the Assuming Bank desires to purchase certain assets and
assume certain deposit and other liabilities of the Failed Bank on the terms and
conditions set forth in this Agreement; and
WHEREAS, pursuant to 12 U.S.C. Section 1823(c)(2)(A), the Corporation
may provide assistance to the Assuming Bank to facilitate the transactions
contemplated by this Agreement, which assistance may include indemnification
pursuant to Article XII; and
WHEREAS, the Board of Directors of the Corporation (the "Board") has
determined to provide assistance to the Assuming Bank on the terms and subject
to the conditions set forth in this Agreement; and
WHEREAS, the Board has determined pursuant to 12 U.S.C. Section
1823(c)(4)(A) that such assistance is necessary to meet the obligation of the
Corporation to provide insurance coverage for the insured deposits in the Failed
Bank and is the least costly to the deposit insurance fund of all possible
methods for meeting such obligation.
NOW THEREFORE, in consideration of the mutual promises herein set forth
and other valuable consideration, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Capitalized terms used in this Agreement shall have the meanings set
forth in this Article I, or elsewhere in this Agreement. As used herein, words
imparting the singular include the plural and vice versa.
"ACCOUNTING RECORDS" means the general ledger and subsidiary
ledgers and supporting schedules which support the general ledger balances.
"ACQUIRED SUBSIDIARIES" has the meaning provided in Section 3.1.
"ADVERSELY CLASSIFIED" means, with respect to any Loan or security, a
Loan or security which, as of the date of the Information Package, has been
designated in the most recent report of examination as "Substandard," "Doubtful"
or "Loss" by the Failed Bank's appropriate Federal or State Chartering Authority
or regulator.
"AFFILIATE" of any Person means any director, officer, or employee of
that Person and any other Person (i) who is directly or indirectly controlling,
or controlled by, or under direct or indirect common control with, such Person,
or (ii) who is an affiliate of such Person as the term "affiliate" is defined in
Section 2 of the Bank Holding Company Act of 1956, as amended, 12 U.S.C. Section
1841.
"AGREEMENT" means this Purchase and Assumption Agreement by and among
the Assuming Bank, the Corporation and the Receiver, as amended or otherwise
modified from time to time.
"ASSETS" means all assets of the Failed Bank purchased pursuant to
Section 3.1. Assets owned by Subsidiaries of the Failed Bank are not "Assets"
within the meaning of this definition.
"ASSUMED DEPOSITS" means Deposits (EXCLUDING, HOWEVER, BROKERED
DEPOSITS, AS DEFINED BY 12 USC 1831f).
"BANK CLOSING DATE" means the close of business of the Failed Bank on
the date on which the Chartering Authority closed such institution.
"BANK PREMISES" means the banking houses, drive-in banking facilities,
and teller facilities (staffed or automated) together with appurtenant parking,
storage and service facilities and structures connecting remote facilities to
banking houses, and land on which the foregoing are located, that are owned or
leased by the Failed Bank and that are occupied by the Failed Bank as of Bank
Closing Date.
"BID AMOUNT" has the meaning provided in Article VII.
"BOOK VALUE" means, with respect to any Asset and any Liability
Assumed, the dollar amount thereof stated on the Accounting Records of the
Failed Bank. The Book Value of any item shall be determined as of Bank Closing
Date after adjustments made by the Receiver for differences in accounts,
suspense items, unposted debits and credits, and other similar adjustments or
corrections and for setoffs, whether voluntary or involuntary. The Book Value of
an Acquired Subsidiary shall be determined from the investment in subsidiary and
related accounts on the "bank only" (unconsolidated) balance sheet of the Failed
Bank based on the equity method of accounting. Without limiting the generality
of the foregoing, (i) the Book Value
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of a Liability Assumed shall include all accrued and unpaid interest thereon as
of Bank Closing Date, and (ii) the Book Value of a Loan shall reflect
adjustments for earned interest, or unearned interest (as it relates to the
"rule of 78s" or add-on-interest loans, as applicable), if any, as of Bank
Closing Date, adjustments for the portion of earned or unearned loan-related
credit life and/or disability insurance premiums, if any, attributable to the
Failed Bank as of Bank Closing Date, and adjustments for Failed Bank Advances,
if any, in each case as determined for financial reporting purposes. The Book
Value of an Asset shall not include any adjustment for loan premiums, discounts
or any related deferred income or fees, or general or specific reserves on the
Accounting Records of the Failed Bank.
"BUSINESS DAY" means a day other than a Saturday, Sunday, Federal legal
holiday or legal holiday under the laws of the State where the Failed Bank is
located, or a day on which the principal office of the Corporation is closed.
"CHARTERING AUTHORITY" means (i) with respect to a national bank, the
Office of the Comptroller of the Currency, (ii) with respect to a Federal
savings association or savings bank, the Office of Thrift Supervision, (iii)
with respect to a bank or savings institution chartered by a State, the agency
of such State charged with primary responsibility for regulating and/or closing
banks or savings institutions, as the case may be, (iv) the Corporation in
accordance with 12 U.S.C. Section 1821(c), with regard to self appointment, or
(v) the appropriate Federal banking agency in accordance with 12 U.S.C.
1821(c)(9).
"COMMITMENT" means the unfunded portion of a line of credit or other
commitment reflected on the books and records of the Failed Bank to make an
extension of credit (or additional advances with respect to a Loan) that was
legally binding on the Failed Bank as of Bank Closing Date, other than
extensions of credit pursuant to the credit card business and overdraft
protection plans of the Failed Bank, if any.
"CREDIT DOCUMENTS" mean the agreements, instruments, certificates or
other documents at any time evidencing or otherwise relating to, governing or
executed in connection with or as security for, a Loan, including without
limitation notes, bonds, loan agreements, letter of credit applications, lease
financing contracts, banker's acceptances, drafts, interest protection
agreements, currency exchange agreements, repurchase agreements, reverse
repurchase agreements, guarantees, deeds of trust, mortgages, assignments,
security agreements, pledges, subordination or priority agreements, lien
priority agreements, undertakings, security instruments, certificates,
documents, legal opinions, participation agreements and intercreditor
agreements, and all amendments, modifications, renewals, extensions,
rearrangements, and substitutions with respect to any of the foregoing.
"DATA PROCESSING LEASE" means any lease or licensing agreement, binding
on the Failed Bank as of Bank Closing Date, the subject of which is data
processing equipment or computer hardware or software used in connection with
data processing activities. A lease or licensing agreement for computer software
used in connection with data processing activities shall constitute a Data
Processing Lease regardless of whether such lease or licensing agreement also
covers data processing equipment.
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"DEPOSIT" means a deposit as defined in 12 U.S.C. Section 1813(1),
including, without limitation, outstanding cashier's checks and other official
checks and all uncollected items included in the depositors' balances and
credited on the books and records of the Failed Bank; provided, that the term
"Deposit" shall not include all or any portion of those deposit balances which,
in the discretion of the Receiver or the Corporation, (i) may be required to
satisfy it for any liquidated or contingent liability of any depositor arising
from an unauthorized or unlawful transaction, or (ii) may be needed to provide
payment of any liability of any depositor to the Failed Bank or the Receiver,
including the liability of any depositor as a director or officer of the Failed
Bank, whether or not the amount of the liability is or can be determined as of
Bank Closing Date.
"FAILED BANK ADVANCES" means the total sums paid by the Failed Bank to
(i) protect its lien position, (ii) pay ad valorem taxes and hazard insurance,
and (iii) pay credit life insurance, accident and health insurance, and vendor's
single interest insurance.
"FAIR MARKET VALUE" means (i)(a) "Market Value" as defined in the
regulation prescribing the standards for real estate appraisals used in
federally related transactions, 12 C.F.R. ss. 323.2(g), and accordingly shall
mean the most probable price which a property should bring in a competitive and
open market under all conditions requisite to a fair sale, the buyer and seller
each acting prudently and knowledgeably, and assuming the price is not affected
by undue stimulus. Implicit in this definition is the consummation of a sale as
of a specified date and the passing of title from seller to buyer under
conditions whereby:
(1) Buyer and seller are typically motivated;
(2) Both parties are well informed or well advised, and acting in what
they consider their own best interests;
(3) A reasonable time is allowed for exposure in the open market;
(4) Payment is made in terms of cash in U.S. dollars or in terms of
financial arrangements comparable thereto; and
(5) The price represents the normal consideration for the property sold
unaffected by special or creative financing or sales concessions
granted by anyone associated with the sale;
as determined as of Bank Closing Date by an appraiser mutually acceptable to the
Receiver and the Assuming Bank; any costs and fees associated with such
determination shall be shared equally by the Receiver and the Assuming Bank, and
(b) which, with respect to Bank Premises (to the extent, if any, that Bank
Premises are purchased utilizing this valuation method), shall be determined not
later than sixty (60) days after Bank Closing Date by an appraiser selected by
the Receiver and the Assuming Bank within seven (7) days after Bank Closing
Date; or (ii) with respect to property other than Bank Premises purchased
utilizing this valuation method, the price therefor as established by the
Receiver and agreed to by the Assuming Bank, or in the absence of such
agreement, as determined in accordance with clause (i)(a) above.
"FIXTURES" means those leasehold improvements, additions, alterations
and installations constituting all or a part of Bank Premises and which were
acquired, added, built,
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installed or purchased at the expense of the Failed Bank, regardless of the
holder of legal title thereto as of Bank Closing Date.
"FURNITURE AND EQUIPMENT" means the furniture and equipment (other than
Safe Deposit Boxes, artwork, motor vehicles and leased data processing
equipment, including hardware and software), leased or owned by the Failed Bank
and reflected on the books of the Failed Bank as of Bank Closing Date, including
without limitation automated teller machines, carpeting, furniture, office
machinery (including personal computers), shelving, office supplies, telephone,
surveillance and security systems.
"INDEMNITEES" means, except as provided in paragraph (k) of Section
12.1, (i) the Assuming Bank, (ii) the Subsidiaries and Affiliates of the
Assuming Bank other than any Subsidiaries or Affiliates of the Failed Bank that
are or become Subsidiaries or Affiliates of the Assuming Bank, and (iii) the
directors, officers, employees and agents of the Assuming Bank and its
Subsidiaries and Affiliates who are not also present or former directors,
officers, employees or agents of the Failed Bank or of any Subsidiary or
Affiliate of the Failed Bank.
"INFORMATION PACKAGE" means the compilation of financial and other data
with respect to the Failed Bank entitled "Information Package" dated as of
January 31, 2004, and any amendments or supplements thereto provided to the
Assuming Bank by the Corporation.
"INITIAL PAYMENT" means the payment made pursuant to Article VII (based
on the best information available as of Bank Closing Date), the amount of which
shall be either (i) if the Bid Amount is positive, the aggregate Book Value of
the Liabilities Assumed minus the sum of the aggregate purchase price of the
Assets and assets purchased and the positive Bid Amount, or (ii) if the Bid
Amount is negative, the sum of the aggregate Book Value of the Liabilities
Assumed and the negative Bid Amount minus the aggregate purchase price of the
Assets and assets purchased. The Initial Payment shall be payable by the
Corporation to the Assuming Bank if (i) the Liabilities Assumed are greater than
the sum of the positive Bid Amount and the Assets and assets purchased, or if
(ii) the sum of the Liabilities Assumed and the negative Bid Amount are greater
than the Assets and assets purchased. The Initial Payment shall be payable by
the Assuming Bank to the Corporation if (i) the Liabilities Assumed are less
than the sum of the positive Bid Amount and the Assets and assets purchased, or
if (ii) the sum of the Liabilities Assumed and the negative Bid Amount is less
than the Assets and assets purchased. Such Initial Payment shall be subject to
adjustment as provided in Article VIII.
"LEGAL BALANCE" means the amount of indebtedness legally owed by an
Obligor with respect to a Loan, including principal and accrued and unpaid
interest, late fees, attorneys' fees and expenses, taxes, insurance premiums,
and similar charges, if any.
"LIABILITIES ASSUMED" has the meaning provided in Section 2.1.
"LIEN" means any mortgage, lien, pledge, charge, assignment for
security purposes, security interest, or encumbrance of any kind with respect to
an Asset, including any conditional sale agreement or capital lease or other
title retention agreement relating to such Asset.
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"LOAN FILE" means all Credit Documents and all other credit,
collateral, or insurance documents in the possession or custody of the Assuming
Bank, or any of its Subsidiaries or Affiliates, relating to an Asset or a Loan
included in a Put Notice, or copies of any thereof.
"LOANS" means all of the following owed to or held by the Failed Bank
as of Bank Closing Date:
(i) loans, participation agreements, interests in participations,
overdrafts of customers (including but not limited to overdrafts made pursuant
to an overdraft protection plan or similar extensions of credit in connection
with a deposit account), revolving commercial lines of credit, home equity lines
of credit, United States and/or State-guaranteed student loans, and lease
financing contracts;
(ii) all Liens, rights (including rights of set-off), remedies, powers,
privileges, demands, claims, priorities, equities and benefits owned or held by,
or accruing or to accrue to or for the benefit of, the holder of the obligations
or instruments referred to in clause (i) above, including but not limited to
those arising under or based upon Credit Documents, casualty insurance policies
and binders, standby letters of credit, mortgagee title insurance policies and
binders, payment bonds and performance bonds at any time and from time to time
existing with respect to any of the obligations or instruments referred to in
clause (i) above; and
(iii) all amendments, modifications, renewals, extensions,
refinancings, and refundings of or for any of the foregoing;
provided, that there shall be excluded from the definition of Loans (a) any
portion of the foregoing which the Failed Bank or the Assuming Bank (or any of
their respective Subsidiaries) holds not for its own account but solely as agent
or fiduciary for, or otherwise as representative of, any other Person, (b) any
loans which have been charged off the Accounting Records of the Failed Bank in
whole or in part prior to the date of the Information Package, (c) loans
recorded on the Accounting Records of the Failed Bank on "in substance
foreclosure" status as of Bank Closing Date, and (d) Commitments.
"OBLIGOR" means each Person liable for the full or partial payment or
performance of any Loan, whether such Person is obligated directly, indirectly,
primarily, secondarily, jointly, or severally.
"PAYMENT DATE" means the first Business Day after Bank Closing Date.
"PERSON" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, or
government or any agency or political subdivision thereof, excluding the
Corporation.
"PRIMARY INDEMNITOR" means any Person (other than the Assuming Bank or
any of its Affiliates) who is obligated to indemnify or insure, or otherwise
make payments (including
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payments on account of claims made against) to or on behalf of any Person in
connection with the claims covered under Article XII, including without
limitation any insurer issuing any directors and officers liability policy or
any Person issuing a financial institution bond or banker's blanket bond.
"PUT DATE" has the meaning provided in Section 3.4.
"PUT NOTICE" has the meaning provided in Section 3.4.
"QUALIFIED FINANCIAL CONTRACT" means a qualified financial contract as
defined in 12 U.S.C. Section 1821(e)(8)(D).
"RECORD" means any document, microfiche, microfilm and computer records
(including but not limited to magnetic tape, disc storage, card forms and
printed copy) of the Failed Bank generated or maintained by the Failed Bank that
is owned by or in the possession of the Receiver at Bank Closing Date.
"RELATED LIABILITY" with respect to any Asset means any liability
existing and reflected on the Accounting Records of the Failed Bank as of Bank
Closing Date for (i) indebtedness secured by mortgages, deeds of trust, chattel
mortgages, security interests or other liens on or affecting such Asset, (ii) ad
valorem taxes applicable to such Asset, and (iii) any other obligation
determined by the Receiver to be directly related to such Asset.
"RELATED LIABILITY AMOUNT" with respect to any Related Liability on
the books of the Assuming Bank, means the amount of such Related Liability as
stated on the Accounting Records of the Assuming Bank (as maintained in
accordance with generally accepted accounting principles) as of the date as of
which the Related Liability Amount is being determined. With respect to a
liability that relates to more than one asset, the amount of such Related
Liability shall be allocated among such assets for the purpose of determining
the Related Liability Amount with respect to any one of such assets. Such
allocation shall be made by specific allocation, where determinable, and
otherwise shall be pro rata based upon the dollar amount of such assets stated
on the Accounting Records of the entity that owns such asset.
"REPURCHASE PRICE" means with respect to any Asset or asset, which
shall be determined by the Receiver, the lesser of (a) or (b):
(a) the amount paid by the Assuming Bank, decreased by the amount of
any money received with respect thereto since Bank Closing Date and, if the
Asset is a Loan or other interest bearing or earning asset, the resulting amount
shall then be increased or decreased, as the case may be, by interest or
discount (whichever is applicable) accrued from and after Bank Closing Date at
the lower of: (i) the contract rate with respect to such Asset, or (ii) the
Settlement Interest Rate; net proceeds received by or due to the Assuming Bank
from the sale of collateral, any forgiveness of debt, or otherwise shall be
deemed money received by the Assuming Bank; or
(b) the dollar amount thereof stated on the Accounting Records of the
Assuming Bank as of the date as of which the Repurchase Price is being
determined, as maintained in
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accordance with generally accepted accounting principles, and, if the asset is a
Loan, regardless of the Legal Balance thereof and adjusted in the same manner as
the Book Value of a Failed Bank Loan would be adjusted hereunder.
Provided, however, (b), above, shall not be applicable for Loans repurchased
pursuant to Section 3.4(a).
If any Asset or asset is purchased as part of a group of Assets or assets for
Book Value and/or as a percentage of Book Value, the amount paid by the Assuming
Bank, for purposes of (a), above, shall be the Book Value, as of the date of
Bank Closing Date, of the individual Asset or asset being repurchased
multiplied, if applicable, by the percentage paid.
"SAFE DEPOSIT BOXES" means the safe deposit boxes of the Failed Bank,
if any, including the removable safe deposit boxes and safe deposit stacks in
the Failed Bank's vault(s), all rights and benefits (other than fees collected
prior to Bank Closing Date) under rental agreements with respect to such safe
deposit boxes, and all keys and combinations thereto.
"SETTLEMENT DATE" means the first Business Day immediately prior to the
day which is one hundred eighty (180) days after Bank Closing Date, or such
other date prior thereto as may be agreed upon by the Receiver and the Assuming
Bank. The Receiver, in its discretion, may extend the Settlement Date.
"SETTLEMENT INTEREST RATE" means, for the first calendar quarter or
portion thereof during which interest accrues, the rate determined by the
Receiver to be equal to the equivalent coupon issue yield on twenty-six
(26)-week United States Treasury Bills in effect as of Bank Closing Date as
published in The Wall Street Journal; provided, that if no such equivalent
coupon issue yield is available as of Bank Closing Date, the equivalent coupon
issue yield for such Treasury Bills most recently published in The Wall Street
Journal prior to Bank Closing Date shall be used. Thereafter, the rate shall be
adjusted to the rate determined by the Receiver to be equal to the equivalent
coupon issue yield on such Treasury Bills in effect as of the first day of each
succeeding calendar quarter during which interest accrues as published in The
Wall Street Journal.
"SUBSIDIARY" has the meaning set forth in Section 3(w)(4) of the
Federal Deposit Insurance Act, 12 Section 1813(w)(4), as amended.
ARTICLE II
ASSUMPTION OF LIABILITIES
2.1 LIABILITIES ASSUMED BY ASSUMING BANK. The Assuming Bank expressly
assumes at Book Value (subject to adjustment pursuant to Article VIII) and
agrees to pay, perform, and discharge all of the following liabilities of the
Failed Bank as of Bank Closing Date, except as otherwise provided in this
Agreement (such liabilities, referred to as "Liabilities Assumed"):
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(a) Assumed Deposits; provided, that as to any Deposits of public
money which are Assumed Deposits, the Assuming Bank agrees to
properly secure such Deposits with such of the Assets as
appropriate which, prior to Bank Closing Date, were pledged as
security therefor by the Failed Bank, or with assets of the
Assuming Bank, if such securing Assets, if any, are insufficient
to properly secure such Deposits;
(b) liabilities for indebtedness secured by mortgages, deeds of
trust, chattel mortgages, security interests or other liens on or
affecting any Assets, if any; provided, that the assumption of
any liability pursuant to this paragraph shall be limited to the
market value of the Assets securing such liability as determined
by the Receiver;
(c) overdrafts, debit balances, service charges, reclamations, and
adjustments to accounts with the Federal Reserve Banks as
reflected on the books and records of any such Federal Reserve
Bank within ninety (90) days after Bank Closing Date, if any;
(d) ad valorem taxes applicable to any Asset, if any; provided, that
the assumption of any ad valorem taxes pursuant to this paragraph
shall be limited to an amount equal to the market value of the
Asset to which such taxes apply as determined by the Receiver;
(e) liabilities, if any, for federal funds purchased, repurchase
agreements and overdrafts in accounts maintained with other
depository institutions (including any accrued and unpaid
interest thereon computed to and including Bank Closing Date);
provided, that the assumption of any liability pursuant to this
paragraph shall be limited to the market value of the Assets
securing such liability as determined by the Receiver;
(f) United States Treasury tax and loan note option accounts, if any;
(g) liabilities for any acceptance or commercial letter of credit
(other than "standby letters of credit" as defined in 12 C.F.R.
Section 337.2(a)); provided, that the assumption of any liability
pursuant to this paragraph shall be limited to the market value
of the Assets securing such liability as determined by the
Receiver;
(h) duties and obligations assumed pursuant to this Agreement
including without limitation those relating to the Failed Bank's
credit card business, overdraft protection plans, safe deposit
business, safekeeping business or trust business, if any; and
(i) liabilities, if any, for amounts owed to any Acquired Subsidiary.
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Schedule 2.1 attached hereto and incorporated herein sets forth certain
categories of Liabilities Assumed and the aggregate Book Value of the
Liabilities Assumed in such categories. Such schedule is based upon the best
information available to the Receiver and may be adjusted as provided in Article
VIII.
2.2 INTEREST ON DEPOSIT LIABILITIES. The Assuming Bank agrees that,
from and after Bank Closing Date, it will accrue and pay interest on Deposit
liabilities assumed pursuant to Section 2.1 at a rate(s) it shall determine;
provided that for nontransaction Deposit liabilities such rate(s) shall not be
less than the lowest rate offered by the Assuming Bank to its depositors for
nontransaction deposit accounts. The Assuming Bank shall permit each depositor
to withdraw, without penalty for early withdrawal, all or any portion of such
depositor's Deposit, whether or not the Assuming Bank elects to pay interest in
accordance with any deposit agreement formerly existing between the Failed Bank
and such depositor; and further provided, that if such Deposit has been pledged
to secure an obligation of the depositor or other party, any withdrawal thereof
shall be subject to the terms of the agreement governing such pledge. The
Assuming Bank shall give notice to such depositors as provided in Section 5.3 of
the rate(s) of interest which it has determined to pay and of such withdrawal
rights.
2.3 UNCLAIMED DEPOSITS. If, within eighteen (18) months after Bank
Closing Date, any depositor of the Failed Bank does not claim or arrange to
continue such depositor's Deposit assumed pursuant to Section 2.1 at the
Assuming Bank, the Assuming Bank shall, within fifteen (15) Business Days after
the end of such eighteen (18)-month period, (i) refund to the Corporation the
full amount of each such Deposit (without reduction for service charges), (ii)
provide to the Corporation a schedule of all such refunded Deposits in such form
as may be prescribed by the Corporation, and (iii) assign, transfer, convey and
deliver to the Receiver all right, title and interest of the Assuming Bank in
and to Records previously transferred to the Assuming Bank and other records
generated or maintained by the Assuming Bank pertaining to such Deposits. During
such eighteen (18)-month period, at the request of the Corporation, the Assuming
Bank promptly shall provide to the Corporation schedules of unclaimed deposits
in such form as may be prescribed by the Corporation.
2.4 EMPLOYEE BENEFIT PLANS. Except as provided in Section 4.12, the
Assuming Bank shall have no liabilities, obligations or responsibilities under
the Failed Bank's health care, bonus, vacation, pension, profit sharing or stock
purchase plans or similar plans, if any, unless the Receiver and the Assuming
Bank agree otherwise subsequent to the date of this Agreement.
ARTICLE III
PURCHASE OF ASSETS
3.1 ASSETS PURCHASED BY ASSUMING BANK. Subject to Sections 3.5 and
3.6, the Assuming Bank hereby purchases from the Receiver, and the Receiver
hereby sells, assigns, transfers, conveys, and delivers to the Assuming Bank,
all right, title, and interest of the Receiver in and to all of the following:
P & A 991022 10 Reliance Bank,
White Plains, NY
(a) cash and receivables from depository institutions, including cash
items in the process of collection, plus any accrued interest thereon computed
to and including Bank Closing Date;
(b) securities (other than the capital stock of Subsidiaries of the
Failed Bank and those securities referred to in Section 3.5(k), if any), plus
any accrued interest thereon computed to and including Bank Closing Date;
(c) federal funds sold and repurchase agreements, if any, including
any accrued interest thereon computed to and including Bank Closing Date;
(d) Omitted;
(e) Loans secured, in whole or in part, by Assumed Deposits or
deposits at other depository institutions, but only such of those Loans which
also are listed on Schedule 3.1(e), if any (including any such Loan that the
Failed Bank charged-off in whole or in part during the period from the date of
the Information Package to and including Bank Closing Date), including any such
Loan made after the date of the Information Package;
(f) credit card business, if any, including all outstanding
extensions of credit, subject to Section 4.2;
(g) Safe Deposit Boxes and related business, safekeeping business and
trust business, if any, subject to Section 4.3, 4.4 or 4.5, respectively;
(h) Records and other documents as provided in Section 6.1;
(i) capital stock of the Subsidiaries of the Failed Bank listed on
Schedule 3.1(i), if any (the "Acquired Subsidiaries");
(j) amounts owed to the Failed Bank by any Acquired Subsidiary;
(k) assets securing Deposits of public money, to the extent not
otherwise purchased hereunder; and
(l) overdrafts of customers (including but not limited to overdrafts
made pursuant to an overdraft protection plan or similar extensions of credit
in connection with a deposit account).
Schedule 3.1 attached hereto and incorporated herein sets forth certain
categories of Assets. Such schedule(s) is based upon the best information
available to the Receiver and may be adjusted as provided in Article VIII.
Assets are purchased hereunder by the Assuming Bank subject to all liabilities
for indebtedness collateralized by Liens affecting such Assets to the extent
provided in Section 2.1.
P & A 991022 11 Reliance Bank,
White Plains, NY
3.2 ASSET PURCHASE PRICE.
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(a) All Assets and assets of the Failed Bank subject to an option to
purchase by the Assuming Bank shall be purchased for the amount, or the amount
resulting from the method specified for determining the amount, as specified on
Schedule 3.2, except as otherwise may be provided herein. Any Asset, asset of
the Failed Bank subject to an option to purchase or other asset purchased for
which no purchase price is specified on Schedule 3.2 or otherwise herein shall
be purchased at its Fair Market Value.
(b) The purchase price for securities (other than the capital stock of
any Acquired Subsidiary) purchased under Section 3.1 by the Assuming Bank shall
be the market value thereof as of Bank Closing Date, which market value shall be
(i) the "Mid/Last", or "Trade" (as applicable), market price for each such
security quoted at the close of the trading day effective on Bank Closing Date
as published electronically by Bloomberg. L.P.; (ii) provided, that such market
price is not available for any such security, the Assuming Bank will submit a
bid for each such security within three days of notification/bid request by the
Receiver (unless a different time period is agreed to by the Assuming Bank and
the Receiver) and the Receiver, in its sole discretion will accept or reject
each such bid; and (iii) further provided in the absence of an acceptable bid
from the Assuming Bank, each such security shall not pass to the Assuming Bank
and shall be deemed to be an excluded asset hereunder.
3.3 MANNER OF CONVEYANCE; LIMITED WARRANTY; NONRECOURSE; ETC. THE
CONVEYANCE OF ALL ASSETS, INCLUDING REAL AND PERSONAL PROPERTY INTERESTS,
PURCHASED BY THE ASSUMING BANK UNDER THIS AGREEMENT SHALL BE MADE, AS NECESSARY,
BY RECEIVER'S DEED OR RECEIVER'S XXXX OF SALE, "AS IS", "WHERE IS", WITHOUT
RECOURSE AND, EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED IN THIS AGREEMENT,
WITHOUT ANY WARRANTIES WHATSOEVER WITH RESPECT TO SUCH ASSETS, EXPRESS OR
IMPLIED, WITH RESPECT TO TITLE, ENFORCEABILITY, COLLECTIBILITY, DOCUMENTATION OR
FREEDOM FROM LIENS OR ENCUMBRANCES (IN WHOLE OR IN PART), OR ANY OTHER MATTERS.
3.4 PUTS OF ASSETS TO THE RECEIVER.
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(a) PUTS WITHIN 14 AND AT 30 DAYS AFTER BANK CLOSING DATE. During the
fourteen (14)-day period following Bank Closing Date and only during such period
(which fourteen (14)-day period may be extended in writing in the sole absolute
discretion of the Receiver for any Loan), in accordance with this Section 3.4,
the Assuming Bank shall be entitled to require the Receiver to purchase any Loan
transferred to the Assuming Bank pursuant to Section.3.1(e) which is not fully
secured by Assumed Deposits or deposits at other insured depository institutions
due to either insufficient Assumed Deposit or deposit collateral or deficient
documentation regarding such collateral; provided with regard to any Loan
secured by an Assumed Deposit, no such purchase may be required until any
Deposit setoff determination, whether voluntary or involuntary, has been made;
and,
P & A 991022 12 Reliance Bank,
White Plains, NY
at the end of the thirty (30)-day period following Bank Closing Date and at that
time only, in accordance with this Section 3.4, the Assuming Bank shall be
entitled to require the Receiver to purchase any remaining overdraft transferred
to the Assuming Bank pursuant to 3.1(1) which both was made after the "as of"
date of the Information Package and was not made pursuant to an overdraft
protection plan or similar extension of credit.
Notwithstanding the foregoing, the Assuming Bank shall not have the right to
require the Receiver to purchase any Loan if (i) the Obligor with respect to
such Loan is an Acquired Subsidiary, or (ii) the Assuming Bank has:
made any advance in accordance with the terms of a Commitment
or otherwise with respect to such Loan;
taken any action that increased the amount of a Related
Liability with respect to such Loan over the amount of such
liability immediately prior to the time of such action;
created or permitted to be created any Lien on such Loan which
secures indebtedness for money borrowed or which constitutes a
conditional sales agreement, capital lease or other title
retention agreement;
entered into, agreed to make, grant or permit, or made,
granted or permitted any modification or amendment to, any
waiver or extension with respect to, or any renewal,
refinancing or refunding of, such Loan or related Credit
Documents or collateral, including, without limitation, any
act or omission which diminished such collateral; or
sold, assigned or transferred all or a portion of such Loan to
a third party (whether with or without recourse).
The Assuming Bank shall transfer all such Loans to the Receiver without
recourse, and shall indemnify the Receiver against any and all claims of any
Person claiming by, through or under the Assuming Bank with respect to any such
Loan, as provided in Section 12.4.
(b) PUTS PRIOR TO THE SETTLEMENT DATE. During the period from Bank
Closing Date to and including the Business Day immediately preceding the
Settlement Date, the Assuming Bank shall be entitled to require the Receiver to
purchase any Asset which the Assuming Bank can establish is evidenced by forged
or stolen instruments as of Bank Closing Date; provided, that, the Assuming Bank
shall not have the right to require the Receiver to purchase any such Asset with
respect to which the Assuming Bank has taken any action referred to in Section
3.4(a)(ii) with respect to such Asset. The Assuming Bank shall transfer all such
Assets to the Receiver without recourse, and shall indemnify the Receiver
against any and all claims of any Person claiming by, through or under the
Assuming Bank with respect to any such Asset, as provided in Section 12.4.
P & A 991022 13 Reliance Bank,
White Plains, NY
(c) NOTICES TO THE RECEIVER. In the event that the Assuming Bank
elects to require the Receiver to purchase one or more Assets, the Assuming Bank
shall deliver to the Receiver a notice (a "Put Notice") which shall include:
(i) a list of all Assets that the Assuming Bank requires the
Receiver to purchase;
(ii) a list of all Related Liabilities with respect to the
Assets identified pursuant to (i) above; and
(iii) a statement of the estimated Repurchase Price of each
Asset identified pursuant to (i) above as of the applicable Put Date.
Such notice shall be in the form prescribed by the Receiver or such other form
to which the Receiver shall consent. As provided in Section 9.6, the Assuming
Bank shall deliver to the Receiver such documents, Loan Files and such
additional information relating to the subject matter of the Put Notice as the
Receiver may request and shall provide to the Receiver full access to all other
relevant books and records.
(d) PURCHASE BY RECEIVER. The Receiver shall purchase Loans that are
specified in the Put Notice and shall assume Related Liabilities with respect to
such Loans, and the transfer of such Loans and Related Liabilities shall be
effective as of a date determined by the Receiver, which date shall not be later
than thirty (30) days after receipt by the Receiver of the Loan Files with
respect to such Loans (the "Put Date").
(e) PURCHASE PRICE AND PAYMENT DATE. Each Loan purchased by the
Receiver pursuant to this Section 3.4 shall be purchased at a price equal to the
Repurchase Price of such Loan less the Related Liability Amount applicable to
such Loan, in each case determined as of the applicable Put Date. If the
difference between such Repurchase Price and such Related Liability Amount is
positive, then the Receiver shall pay to the Assuming Bank the amount of such
difference; if the difference between such amounts is negative, then the
Assuming Bank shall pay to the Receiver the amount of such difference. The
Assuming Bank or the Receiver, as the case may be, shall pay the purchase price
determined pursuant to this Section 3.4(e) not later than the twentieth (20th)
Business Day following the applicable Put Date, together with interest on such
amount at the Settlement Interest Rate for the period from and including such
Put Date to and including the day preceding the date upon which payment is made.
(f) SERVICING. The Assuming Bank shall administer and manage any Asset
subject to purchase by the Receiver in accordance with usual and prudent banking
standards and business practices until such time as such Asset is purchased by
the Receiver.
(g) REVERSALS. In the event that the Receiver purchases an Asset (and
assumes the Related Liability) that it is not required to purchase pursuant to
this Section 3.4, the Assuming Bank shall repurchase such Asset (and assume such
Related Liability) from the Receiver at a price computed so as to achieve the
same economic result as would apply if the Receiver had never purchased such
Asset pursuant to this Section 3.4.
P & A 991022 14 Reliance Bank,
White Plains, NY
3.5 ASSETS NOT PURCHASED BY ASSUMING BANK. The Assuming Bank does not
purchase, acquire or assume, or (except as otherwise expressly provided in this
Agreement) obtain an option to purchase, acquire or assume under this Agreement:
(a) any financial institution bonds, banker's blanket bonds, or public
liability, fire, or extended coverage insurance policy or any other insurance
policy of the Failed Bank, or premium refund, unearned premium derived from
cancellation, or any proceeds payable with respect to any of the foregoing;
(b) any interest, right, action, claim, or judgment against (i) any
officer, director, employee, accountant, attorney, or any other Person employed
or retained by the Failed Bank or any Subsidiary of the Failed Bank on or prior
to Bank Closing Date arising out of any act or omission of such Person in such
capacity, (ii) any underwriter of financial institution bonds, banker's blanket
bonds or any other insurance policy of the Failed Bank, (iii) any shareholder or
holding company of the Failed Bank, or (iv) any other Person whose action or
inaction may be related to any loss (exclusive of any loss resulting from such
Person's failure to pay on a Loan made by the Failed Bank) incurred by the
Failed Bank; provided, that for the purposes hereof, the acts, omissions or
other events giving rise to any such claim shall have occurred on or before Bank
Closing Date, regardless of when any such claim is discovered and regardless of
whether any such claim is made with respect to a financial institution bond,
banker's blanket bond, or any other insurance policy of the Failed Bank in force
as of Bank Closing Date;
(c) prepaid regulatory assessments of the Failed Bank, if any;
(d) legal or equitable interests in tax receivables of the Failed
Bank, if any, including any claims arising as a result of the Failed Bank having
entered into any agreement or otherwise being joined with another Person with
respect to the filing of tax returns or the payment of taxes;
(e) Federal Reserve Bank and Federal Home Loan Bank stock, if any;
(f) amounts reflected on the Accounting Records of the Failed Bank as
of Bank Closing Date as a general or specific loss reserve or contingency
account, if any;
(g) owned and leased Bank Premises and owned and leased Furniture and
Equipment and Fixtures and data processing equipment (including hardware and
software) located on Bank Premises, if any; provided, that the Assuming Bank
does obtain an option under Section 4.6, Section 4.7 or Section 4.8, as the case
may be, with respect thereto;
(h) owned Bank Premises which the Receiver, in its discretion,
determines may contain environmentally hazardous substances;
(i) any amounts owed to the Failed Bank by any Subsidiary of the Failed
Bank other than an Acquired Subsidiary;
P & A 991022 15 Reliance Bank,
White Plains, NY
(j) any "goodwill," as such term is defined in the instructions to the
report of condition prepared by banks examined by the Corporation in accordance
with 12 C.F.R. Section 304.4, and other intangibles;
(k) any security if, in the discretion of the Receiver, the value of
such security either cannot be determined or is determined to be zero pursuant
to Section 3.2(b), and any security listed on Schedule 3.5(k), if any; and
(1) any criminal restitution orders issued in favor of the Failed
Bank.
The Assuming Bank only acquires assets and rights as provided in this Agreement.
The foregoing shall not be construed to imply that any particular asset or right
listed otherwise would have been sold or assigned or that any asset or right not
listed is sold or assigned.
3.6 ASSETS ESSENTIAL TO RECEIVER.
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(a) The Receiver may refuse to sell to the Assuming Bank, or the
Assuming Bank agrees, at the request of the Receiver set forth in a written
notice to the Assuming Bank, to assign, transfer, convey, and deliver to the
Receiver all of the Assuming Bank's right, title and interest in and to, any
Asset or asset essential to the Receiver as determined by the Receiver in its
discretion (together with all Credit Documents evidencing or pertaining
thereto), which may include any Asset or asset that the Receiver determines to
be:
(i) made to an officer, director, or other Person engaging in the
affairs of the Failed Bank, its Subsidiaries or Affiliates or any related
entities of any of the foregoing;
(ii) the subject of any investigation relating to any claim with
respect to any item described in Section 3.5(a) or (b), or the subject of, or
potentially the subject of, any legal proceedings;
(iii) made to a Person who is an Obligor on a loan owned by the
Receiver or the Corporation in its corporate capacity or its capacity as
receiver of any institution;
(iv) secured by collateral which also secures any asset owned by
the Receiver; or
(v) related to any asset of the Failed Bank not purchased by the
Assuming Bank under this Article III or any liability of the Failed Bank not
assumed by the Assuming Bank under Article II.
(b) Each such Asset or asset purchased by the Receiver shall be
purchased at a price equal to the Repurchase Price thereof less the Related
Liability Amount with respect to any Related Liabilities related to such Asset
or asset, in each case determined as of the date of the notice provided by the
Receiver pursuant to Section 3.6(a). The Receiver shall pay the Assuming Bank
not later than the twentieth (20th) Business Day following receipt of related
Credit Documents and Loan Files together with interest on such amount at the
Settlement Interest Rate
P & A 991022 16 Reliance Bank,
White Plains, NY
for the period from and including the date of receipt of such documents to and
including the day preceding the day on which payment is made. The Assuming Bank
agrees to administer and manage each such Asset or asset in accordance with
usual and prudent banking standards and business practices until each such Loan
is purchased by the Receiver. All transfers with respect to Loans under this
Section 3.6 shall be made as provided in Section 9.6. The Assuming Bank shall
transfer all such Assets or assets and Related Liabilities to the Receiver
without recourse, and shall indemnify the Receiver against any and all claims of
any Person claiming by, through or under the Assuming Bank with respect to any
such Asset or asset, as provided in Section 12.4.
ARTICLE IV
ASSUMPTION OF CERTAIN DUTIES AND OBLIGATIONS
The Assuming Bank agrees with the Receiver and the Corporation as
follows:
4.1 CONTINUATION OF BANKING BUSINESS. The Assuming Bank agrees to
provide full service banking in the trade area of the Failed Bank commencing on
the first banking business day (including a Saturday) after Bank Closing Date.
At the option of the Assuming Bank, such banking services may be provided at any
or all of the Bank Premises, or at other premises within such trade area.
4.2 AGREEMENT WITH RESPECT TO CREDIT CARD BUSINESS. The Assuming Bank
agrees to honor and perform, from and after Bank Closing Date, all duties and
obligations with respect to the Failed Bank's credit card business, and/or
processing related to credit cards, if any, and assumes all outstanding
extensions of credit with respect thereto. Fees related to the credit card
business collected prior to Bank Closing Date shall be for the benefit of the
Receiver and fees collected after Bank Closing Date shall be for the benefit of
the Assuming Bank.
4.3 AGREEMENT WITH RESPECT TO SAFE DEPOSIT BUSINESS. The Assuming Bank
assumes and agrees to discharge, from and after Bank Closing Date, in the usual
course of conducting a banking business, the duties and obligations of the
Failed Bank with respect to all Safe Deposit Boxes, if any, of the Failed Bank
and to maintain all of the necessary facilities for the use of such boxes by the
renters thereof during the period for which such boxes have been rented and the
rent therefor paid to the Failed Bank, subject to the provisions of the rental
agreements between the Failed Bank and the respective renters of such boxes;
provided, that the Assuming Bank may relocate the Safe Deposit Boxes of the
Failed Bank to any office of the Assuming Bank located in the trade area of the
Failed Bank. Fees related to the safe deposit business collected prior to Bank
Closing Date shall be for the benefit of the Receiver and fees collected after
Bank Closing Date shall be for the benefit of the Assuming Bank.
4.4 AGREEMENT WITH RESPECT TO SAFEKEEPING BUSINESS. The Receiver
transfers, conveys and delivers to the Assuming Bank and the Assuming Bank
accepts all securities and other items, if any, held by the Failed Bank in
safekeeping for its customers as of Bank Closing Date. The Assuming Bank assumes
and agrees to honor and discharge, from and after Bank Closing Date, the duties
and obligations of the Failed Bank with respect to such securities and items
held in safekeeping. The Assuming Bank shall be entitled to all rights and
benefits
P & A 991022 17 Reliance Bank,
White Plains, NY
heretofore accrued or hereafter accruing with respect thereto; provided, that,
fees related to the safe keeping business collected prior to Bank Closing Date
shall be for the benefit of the Receiver and fees collected after Bank Closing
Date shall be for the benefit of the Assuming Bank. The Assuming Bank shall
provide to the Receiver written verification of all assets held by the Failed
Bank for safekeeping within sixty (60) days after Bank Closing Date.
4.5 AGREEMENT WITH RESPECT TO TRUST BUSINESS.
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(a) The Assuming Bank shall, without further transfer, substitution,
act or deed, to the full extent permitted by law, succeed to the rights,
obligations, properties, assets, investments, deposits, agreements, and trusts
of the Failed Bank under trusts, executorships, administrations, guardianships,
and agencies, and other fiduciary or representative capacities, all to the same
extent as though the Assuming Bank had assumed the same from the Failed Bank
prior to Bank Closing Date; provided, that any liability based on the
misfeasance, malfeasance or nonfeasance of the Failed Bank, its directors,
officers, employees or agents with respect to the trust business is not assumed
hereunder. Fees related to the trust business collected prior to Bank Closing
Date shall be for the benefit of the Receiver and fees collected after Bank
Closing Date shall be for the benefit of the Assuming Bank.
(b) The Assuming Bank shall, to the full extent permitted by law,
succeed to, and be entitled to take and execute, the appointment to all
executorships, trusteeships, guardianships and other fiduciary or representative
capacities to which the Failed Bank is or may be named in xxxxx, whenever
probated, or to which the Failed Bank is or may be named or appointed by any
other instrument.
(c) In the event additional proceedings of any kind are necessary to
accomplish the transfer of such trust business, the Assuming Bank agrees that,
at its own expense, it will take whatever action is necessary to accomplish such
transfer. The Receiver agrees to use reasonable efforts to assist the Assuming
Bank in accomplishing such transfer.
(d) The Assuming Bank shall provide to the Receiver written
verification of the assets held in connection with the Failed Bank's trust
business within sixty (60) days after Bank Closing Date.
4.6 AGREEMENT WITH RESPECT TO BANK PREMISES.
---------------------------------------
(a) OPTION TO PURCHASE. Subject to Section 3.5, the Receiver hereby
grants to the Assuming Bank an exclusive option for the period of ninety (90)
days commencing the day after Bank Closing Date to purchase any or all owned
Bank Premises. The Assuming Bank shall give written notice to the Receiver
within the option period of its election to purchase or not to purchase any of
the owned Bank Premises. Any purchase of such premises shall be effective as of
the date of Bank Closing Date and such purchase shall be consummated as soon as
practicable thereafter, and in no event later than the Settlement Date.
(b) OPTION TO LEASE. The Receiver hereby grants to the Assuming Bank
an exclusive option for the period of ninety (90) days commencing the day after
Bank Closing Date to cause
P & A 991022 18 Reliance Bank,
White Plains, NY
the Receiver to assign to the Assuming Bank any or all leases for leased Bank
Premises, if any, which have been continuously occupied by the Assuming Bank
from Bank Closing Date to the date it elects to accept an assignment of the
leases with respect thereto to the extent such leases can be assigned; provided,
that the exercise of this option with respect to any lease must be as to all
premises or other property subject to the lease. If an assignment cannot be made
of any such leases, the Receiver may, in its discretion, enter into subleases
with the Assuming Bank containing the same terms and conditions provided under
such existing leases for such leased Bank Premises or other property. The
Assuming Bank shall give notice to the Receiver within the option period of its
election to accept or not to accept an assignment of any or all leases (or enter
into subleases or new leases in lieu thereof). The Assuming Bank agrees to
assume all leases assigned (or enter into subleases or new leases in lieu
thereof) pursuant to this Section 4.6.
(c) FACILITATION. The Receiver agrees to facilitate the assumption,
assignment or sublease of leases or the negotiation of new leases by the
Assuming Bank; provided, that neither the Receiver nor the Corporation shall be
obligated to engage in litigation, make payments to the Assuming Bank or to any
third party in connection with facilitating any such assumption, assignment,
sublease or negotiation or commit to any other obligations to third parties.
(d) OCCUPANCY. The Assuming Bank shall give the Receiver fifteen (15)
days' prior written notice of its intention to vacate prior to vacating any
leased Bank Premises with respect to which the Assuming Bank has not exercised
the option provided in Section 4.6(b). Any such notice shall be deemed to
terminate the Assuming Bank's option with respect to such leased Bank Premises.
(e) OCCUPANCY COSTS.
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(i) The Assuming Bank agrees to pay to the Receiver, or to
appropriate third parties at the direction of the Receiver, during and for the
period of any occupancy by it of (x) owned Bank Premises the market rental value
and all operating costs, and (y) leased Bank Premises, all operating costs with
respect thereto and to comply with all relevant terms of applicable leases
entered into by the Failed Bank, including without limitation the timely payment
of all rent. Operating costs include, without limitation all taxes, fees,
charges, utilities, insurance and assessments, to the extent not included in the
rental value or rent. If the Assuming Bank elects to purchase any owned Bank
Premises in accordance with Section 4.6(a), the amount of any rent paid (and
taxes paid to the Receiver which have not been paid to the taxing authority and
for which the Assuming Bank assumes liability) by the Assuming Bank with respect
thereto shall be applied as an offset against the purchase price thereof.
(ii) The Assuming Bank agrees during the period of occupancy by it
of owned or leased Bank Premises, to pay to the Receiver rent for the use of all
owned or leased Furniture and Equipment and all owned or leased Fixtures located
on such Bank Premises for the period of such occupancy. Rent for such property
owned by the Failed Bank shall be the market rental value thereof, as determined
by the Receiver within sixty (60) days after Bank Closing Date. Rent for such
leased property shall be an amount equal to any and all rent and other amounts
which the Receiver incurs or accrues as an obligation or is obligated to pay for
such period of occupancy pursuant to all leases and contracts with respect to
such property. If the Assuming
P & A 991022 19 Reliance Bank,
White Plains, NY
Bank purchases any owned Furniture and Equipment or owned Fixtures in accordance
with Section 4.6(f) or 4.6(h), the amount of any rents paid by the Assuming Bank
with respect thereto shall be applied as an offset against the purchase price
thereof.
(f) CERTAIN REQUIREMENTS AS TO FURNITURE, EQUIPMENT AND FIXTURES. If
the Assuming Bank purchases owned Bank Premises or accepts an assignment of the
lease (or enters into a sublease or a new lease in lieu thereof) for leased Bank
Premises as provided in Section 4.6(a) or 4.6(b), or if the Assuming Bank does
not exercise such option but within twelve (12) months following Bank Closing
Date obtains the right to occupy such premises (whether by assignment, lease,
sublease, purchase or otherwise), other than in accordance with Section 4.6(a)
or (b), the Assuming Bank shall (i) effective as of the date of Bank Closing
Date, purchase from the Receiver all Furniture and Equipment and Fixtures owned
by the Failed Bank and located thereon as of Bank Closing Date, (ii) accept an
assignment or a sublease of the leases or negotiate new leases for all Furniture
and Equipment and Fixtures leased by the Failed Bank and located thereon, and
(iii) if applicable, accept an assignment or a sublease of any ground lease or
negotiate a new ground lease with respect to any land on which such Bank
Premises are located; provided, that the Receiver shall not have disposed of
such Furniture and Equipment and Fixtures or repudiated the leases specified in
clause (ii) or (iii).
(g) VACATING PREMISES.
-----------------
(i) If the Assuming Bank elects not to purchase any owned Bank
Premises, the notice of such election in accordance with Section 4.6(a) shall
specify the date upon which the Assuming Bank's occupancy of such premises shall
terminate, which date shall not be later than ninety (90) days after the date of
the Assuming Bank's notice not to exercise such option. The Assuming Bank
promptly shall relinquish and release to the Receiver such premises and the
Furniture and Equipment and Fixtures located thereon in the same condition as at
Bank Closing Date, normal wear and tear excepted. By occupying any such premises
after the expiration of such ninety (90)-day period, the Assuming Bank shall, at
the Receiver's option, (x) be deemed to have agreed to purchase such Bank
Premises, and to assume all leases, obligations and liabilities with respect to
leased Furniture and Equipment and leased Fixtures located thereon and any
ground lease with respect to the land on which such premises are located, and
(y) be required to purchase all Furniture and Equipment and Fixtures owned by
the Failed Bank and located on such premises as of Bank Closing Date.
(ii) If the Assuming Bank elects not to accept an assignment of
the lease or sublease any leased Bank Premises, the notice of such election in
accordance with Section 4.6(b) shall specify the date upon which the Assuming
Bank's occupancy of such leased Bank Premises shall terminate, which date shall
not be later than the date which is one hundred eighty (180) days after Bank
Closing Date. Upon vacating such premises, the Assuming Bank shall relinquish
and release to the Receiver such premises and the Fixtures and the Furniture and
Equipment located thereon in the same condition as at Bank Closing Date, normal
wear and tear excepted. By failing to provide notice of its intention to vacate
such premises prior to the expiration of the option period specified in Section
4.6(b), or by occupying such premises after the one hundred eighty (180)-day
period specified above in this paragraph (ii), the Assuming Bank shall, at the
Receiver's option, (x) be deemed to have assumed all leases, obligations and
liabilities with
P & A 991022 20 Reliance Bank,
White Plains, NY
respect to such premises (including any ground lease with respect to the land on
which premises are located), and leased Furniture and Equipment and leased
Fixtures located thereon in accordance with this Section 4.6 (unless the
Receiver previously repudiated any such lease), and (y) be required to purchase
all Furniture and Equipment and Fixtures owned by the Failed Bank and located on
such premises as of Bank Closing Date.
(h) FURNITURE AND EQUIPMENT AND CERTAIN OTHER EQUIPMENT. The Receiver
hereby grants to the Assuming Bank an option to purchase, effective as of
the date of Bank Closing Date, all Furniture and Equipment or any
telecommunications, data processing equipment (including hardware and software)
and check processing and similar operating equipment owned by the Failed Bank
and located at any owned or leased Bank Premises that the Assuming Bank elects
to vacate or which it could have, but did not occupy, pursuant to this Section
4.6; provided, that, the Assuming Bank shall give the Receiver notice of its
election to purchase such property at the time it gives notice of its intention
to vacate such Bank Premises or within ten (10) days after Bank Closing Date for
Bank Premises it could have, but did not, occupy.
4.7 AGREEMENT WITH RESPECT TO LEASED DATA PROCESSING EQUIPMENT.
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(a) The Receiver hereby grants to the Assuming Bank an exclusive
option for the period of ninety (90) days commencing the day after Bank Closing
Date to accept an assignment from the Receiver of any or all Data Processing
Leases to the extent that such Data Processing Leases can be assigned.
(b) The Assuming Bank shall (i) give written notice to the Receiver
within the option period specified in Section 4.7(a) of its intent to accept an
assignment or sublease of any or all Data Processing Leases and promptly accept
an assignment or sublease of such Data Processing Leases, and (ii) give written
notice to the appropriate lessor(s) that it has accepted an assignment or
sublease of any such Data Processing Leases.
(c) The Receiver agrees to facilitate the assignment or sublease of
Data Processing Leases or the negotiation of new leases or license agreements by
the Assuming Bank; provided, that neither the Receiver nor the Corporation shall
be obligated to engage in litigation or make payments to the Assuming Bank or to
any third party in connection with facilitating any such assumption, assignment,
sublease or negotiation.
(d) The Assuming Bank agrees, during its period of use of any property
subject to a Data Processing Lease, to pay to the Receiver or to appropriate
third parties at the direction of the Receiver all operating costs with respect
thereto and to comply with all relevant terms of the applicable Data Processing
Leases entered into by the Failed Bank, including without limitation the timely
payment of all rent, taxes, fees, charges, utilities, insurance and assessments.
(e) The Assuming Bank shall, not later than fifty (50) days after
giving the notice provided in Section 4.7(b), (i) relinquish and release to the
Receiver all property subject to the relevant Data Processing Lease, in the same
condition as at Bank Closing Date, normal wear and
P & A 991022 21 Reliance Bank,
White Plains, NY
tear excepted, or (ii) accept an assignment or a sublease thereof or negotiate a
new lease or license agreement under this Section 4.7.
4.8 AGREEMENT WITH RESPECT TO CERTAIN EXISTING AGREEMENTS.
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(a) Subject to the provisions of Section 4.8(b), with respect to
agreements existing as of Bank Closing Date which provide for the rendering of
services by or to the Failed Bank, within thirty (30) days after Bank Closing
Date, the Assuming Bank shall give the Receiver written notice specifying
whether it elects to assume or not to assume each such agreement. Except as may
be otherwise provided in this Article IV, the Assuming Bank agrees to comply
with the terms of each such agreement for a period commencing on the day after
Bank Closing Date and ending on: (i) in the case of an agreement that provides
for the rendering of services by the Failed Bank, the date which is ninety (90)
days after Bank Closing Date, and (ii) in the case of an agreement that provides
for the rendering of services to the Failed Bank, the date which is thirty (30)
days after the Assuming Bank has given notice to the Receiver of its election
not to assume such agreement; provided, that the Receiver can reasonably make
such service agreements available to the Assuming Bank. The Assuming Bank shall
be deemed by the Receiver to have assumed agreements for which no notification
is timely given. The Receiver agrees to assign, transfer, convey, and deliver to
the Assuming Bank all right, title and interest of the Receiver, if any, in and
to agreements the Assuming Bank assumes hereunder. In the event the Assuming
Bank elects not to accept an assignment of any lease (or sublease) or negotiate
a new lease for leased Bank Premises under Section 4.6 and does not otherwise
occupy such premises, the provisions of this Section 4.8(a) shall not apply to
service agreements related to such premises. The Assuming Bank agrees, during
the period it has the use or benefit of any such agreement, promptly to pay to
the Receiver or to appropriate third parties at the direction of the Receiver
all operating costs with respect thereto and to comply with all relevant terms
of such agreement.
(b) The provisions of Section 4.8(a) shall not apply to (i) agreements
pursuant to which the Failed Bank provides mortgage servicing for others or
mortgage servicing is provided to the Failed Bank by others, (ii) agreements
that are subject to Sections 4.1 through 4.7 and any insurance policy or bond
referred to in Section 3.5(a) or other agreement specified in Section 3.5, and
(iii) consulting, management or employment agreements, if any, between the
Failed Bank and its employees or other Persons. Except as otherwise expressly
set forth elsewhere in this Agreement, the Assuming Bank does not assume any
liabilities or acquire any rights under any of the agreements described in this
Section 4.8(b).
4.9 INFORMATIONAL TAX REPORTING. The Assuming Bank agrees to perform
all obligations of the Failed Bank with respect to Federal and State income tax
informational reporting related to (i) the Assets and the Liabilities Assumed,
(ii) deposit accounts that were closed and loans that were paid off or
collateral obtained with respect thereto prior to Bank Closing Date, (iii)
miscellaneous payments made to vendors of the Failed Bank, and (iv) any other
asset or liability of the Failed Bank, including, without limitation, loans not
purchased and Deposits not assumed by the Assuming Bank, as may be required by
the Receiver.
P & A 991022 22 Reliance Bank,
White Plains, NY
4.10 INSURANCE. The Assuming Bank agrees to obtain insurance coverage
effective from and after Bank Closing Date, including public liability, fire and
extended coverage insurance acceptable to the Receiver with respect to owned or
leased Bank Premises that it occupies, and all owned or leased Furniture and
Equipment and Fixtures and leased data processing equipment (including hardware
and software) located thereon, in the event such insurance coverage is not
already in force and effect with respect to the Assuming Bank as the insured as
of Bank Closing Date. All such insurance shall, where appropriate (as determined
by the Receiver), name the Receiver as an additional insured.
4.11 OFFICE SPACE FOR RECEIVER AND CORPORATION. For the period
commencing on the day following Bank Closing Date and ending on the one hundred
eightieth (180th) day thereafter, the Assuming Bank agrees to provide to the
Receiver and the Corporation, without charge, adequate and suitable office space
(including parking facilities and vault space), furniture, equipment (including
photocopying and telecopying machines) and utilities (including local telephone
service) at the Bank Premises occupied by the Assuming Bank for their use in the
discharge of their respective functions with respect to the Failed Bank. In the
event the Receiver and the Corporation determine that the space provided is
inadequate or unsuitable, the Receiver and the Corporation may relocate to other
quarters having adequate and suitable space and the costs of relocation and any
rental and utility costs for the balance of the period of occupancy by the
Receiver and the Corporation shall be borne by the Assuming Bank.
4.12 AGREEMENT WITH RESPECT TO CONTINUATION OF GROUP HEALTH PLAN
COVERAGE FOR FORMER EMPLOYEES OF THE FAILED BANK.
(a) The Assuming Bank agrees to assist the Receiver, as provided in
this Section 4.12, in offering individuals who were employees or former
employees of the Failed Bank, or any of its Subsidiaries, and who, immediately
prior to Bank Closing Date, were receiving, or were eligible to receive, health
insurance coverage or health insurance continuation coverage from the Failed
Bank ("Eligible Individuals"), the opportunity to obtain health insurance
coverage in the Corporation's FIA Continuation Coverage Plan which provides for
health insurance continuation coverage to such Eligible Individuals who are
qualified beneficiaries of the Failed Bank as defined in Section 607 of the
Employee Retirement Income Security Act of 1974, as amended (respectively,
"qualified beneficiaries" and "ERISA"). The Assuming Bank shall consult with the
Receiver and not later than five (5) Business Days after Bank Closing Date shall
provide written notice to the Receiver of the number (if available), identity
(if available) and addresses (if available) of the Eligible Individuals who are
qualified beneficiaries of the Failed Bank and for whom a "qualifying event" (as
defined in Section 603 of ERISA) has occurred and with respect to whom the
Failed Bank's obligations under Part 6 of Subtitle B of Title I of ERISA have
not been satisfied in full, and such other information as the Receiver may
reasonably require. The Receiver shall cooperate with the Assuming Bank in order
to permit it to prepare such notice and shall provide to the Assuming Bank such
data in its possession as may be reasonably required for purposes of preparing
such notice.
(b) The Assuming Bank shall take such further action to assist the
Receiver in offering the Eligible Individuals who are qualified beneficiaries of
the Failed Bank the opportunity to obtain health insurance coverage in the
Corporation's FIA Continuation Coverage
P & A 991022 23 Reliance Bank,
White Plains, NY
Plan as the Receiver may direct. All expenses incurred and paid by the Assuming
Bank (i) in connection with the obligations of the Assuming Bank under this
Section 4.12, and (ii) in providing health insurance continuation coverage to
any Eligible Individuals who are hired by the Assuming Bank and such employees'
qualified beneficiaries shall be borne by the Assuming Bank.
(c) This Section 4.12 is for the sole and exclusive benefit of the
parties to this Agreement, and for the benefit of no other Person (including any
former employee of the Failed Bank or any Subsidiary thereof or qualified
beneficiary of such former employee). Nothing in this Section 4.12 is intended
by the parties, or shall be construed, to give any Person (including any former
employee of the Failed Bank or any Subsidiary thereof or qualified beneficiary
of such former employee) other than the Corporation, the Receiver and the
Assuming Bank any legal or equitable right, remedy or claim under or with
respect to the provisions of this Section.
4.13 AGREEMENT WITH RESPECT TO INTERIM ASSET SERVICING. At any time
after Bank Closing Date, the Receiver may establish on its books an asset
pool(s) and may transfer to such asset pool(s) (by means of accounting entries
on the books of the Receiver) all or any assets and liabilities of the Failed
Bank which are not acquired by the Assuming Bank, including, without limitation,
wholly unfunded Commitments and assets and liabilities which may be acquired,
funded or originated by the Receiver subsequent to Bank Closing Date. The
Receiver may remove assets (and liabilities) from or add assets (and
liabilities) to such pool(s) at any time in its discretion. At the option of the
Receiver, the Assuming Bank agrees to service, administer, and collect such pool
assets in accordance with and for the term set forth in Exhibit 4.13 "Interim
Asset Servicing Arrangement".
ARTICLE V
DUTIES WITH RESPECT TO DEPOSITORS OF THE FAILED BANK
5.1 PAYMENT OF CHECKS, DRAFTS AND ORDERS. Subject to Section 9.5, the
Assuming Bank agrees to pay all properly drawn checks, drafts and withdrawal
orders of depositors of the Failed Bank presented for payment, whether drawn on
the check or draft forms provided by the Failed Bank or by the Assuming Bank, to
the extent that the Deposit balances to the credit of the respective makers or
drawers assumed by the Assuming Bank under this Agreement are sufficient to
permit the payment thereof, and in all other respects to discharge, in the usual
course of conducting a banking business, the duties and obligations of the
Failed Bank with respect to the Deposit balances due and owing to the depositors
of the Failed Bank assumed by the Assuming Bank under this Agreement.
5.2 CERTAIN AGREEMENTS RELATED TO DEPOSITS. Subject to Section 2.2,
the Assuming Bank agrees to honor the terms and conditions of any written escrow
or mortgage servicing agreement or other similar agreement relating to a Deposit
liability assumed by the Assuming Bank pursuant to this Agreement.
5.3 NOTICE TO DEPOSITORS.
P & A 991022 24 Reliance Bank,
White Plains, NY
(a) Within seven (7) days after Bank Closing Date, the Assuming Bank
shall give (i) notice to depositors of the Failed Bank of its assumption of the
Deposit liabilities of the Failed Bank, and (ii) any notice required under
Section 2.2, by mailing to each such depositor a notice with respect to such
assumption and by advertising in a newspaper of general circulation in the
county or counties in which the Failed Bank was located. The Assuming Bank
agrees that it will obtain prior approval of all such notices and advertisements
from counsel for the Receiver and that such notices and advertisements shall not
be mailed or published until such approval is received.
(b) The Assuming Bank shall give notice by mail to depositors of the
Failed Bank concerning the procedures to claim their deposits, which notice
shall be provided to the Assuming Bank by the Receiver or the Corporation. Such
notice shall be included with the notice to depositors to be mailed by the
Assuming Bank pursuant to Section 5.3(a).
(c) If the Assuming Bank proposes to charge fees different from those
charged by the Failed Bank before it establishes new deposit account
relationships with the depositors of the Failed Bank, the Assuming Bank shall
give notice by mail of such changed fees to such depositors.
ARTICLE VI
RECORDS
6.1 TRANSFER OF RECORDS.
-------------------
(a) In accordance with Section 3.1, the Receiver assigns, transfers,
conveys and delivers to the Assuming Bank the following Records pertaining to
the Deposit liabilities of the Failed Bank assumed by the Assuming Bank under
this Agreement, except as provided in Section 6.4:
(i) signature cards, orders, contracts between the Failed Bank and
its depositors and Records of similar character;
(ii) passbooks of depositors held by the Failed Bank, deposit
slips, cancelled checks and withdrawal orders representing charges to accounts
of depositors;
and the following Records pertaining to the Assets:
(iii) records of deposit balances carried with other banks,
bankers or trust companies;
(iv) Loan and collateral records and Loan Files and other
documents;
(v) deeds, mortgages, abstracts, surveys, and other instruments or
records of title pertaining to real estate or real estate mortgages;
P & A 991022 25 Reliance Bank,
White Plains, NY
(vi) signature cards, agreements and records pertaining to Safe
Deposit Boxes, if any; and
(vii) records pertaining to the credit card business, trust
business or safekeeping business of the Failed Bank, if any.
(b) The Receiver, at its option, may assign and transfer to the
Assuming Bank by a single blanket assignment or otherwise, as soon as
practicable after Bank Closing Date, any other Records not assigned and
transferred to the Assuming Bank as provided in this Agreement, including but
not limited to loan disbursement checks, general ledger tickets, official bank
checks, proof transactions (including proof tapes) and paid out loan files.
6.2 DELIVERY OF ASSIGNED RECORDS. The Receiver shall deliver to the
Assuming Bank all Records described in (i) Section 6.1(a) as soon as practicable
on or after the date of this Agreement, and (ii) Section 6.1(b) as soon as
practicable after making any assignment described therein.
6.3 PRESERVATION OF RECORDS. The Assuming Bank agrees that it will
preserve and maintain for the joint benefit of the Receiver, the Corporation and
the Assuming Bank, all Records of which it has custody for such period as either
the Receiver or the Corporation in its discretion may require, until directed
otherwise, in writing, by the Receiver or Corporation. The Assuming Bank shall
have the primary responsibility to respond to subpoenas, discovery requests, and
other similar official inquiries with respect to the Records of which it has
custody.
6.4 ACCESS TO RECORDS; COPIES. The Assuming Bank agrees to permit the
Receiver and the Corporation access to all Records of which the Assuming Bank
has custody, and to use, inspect, make extracts from or request copies of any
such Records in the manner and to the extent requested, and to duplicate, in the
discretion of the Receiver or the Corporation, any Record in the form of
microfilm or microfiche pertaining to Deposit account relationships; provided,
that in the event that the Failed Bank maintained one or more duplicate copies
of such microfilm or microfiche Records, the Assuming Bank hereby assigns,
transfers, and conveys to the Corporation one such duplicate copy of each such
Record without cost to the Corporation, and agrees to deliver to the Corporation
all Records assigned and transferred to the Corporation under this Article VI as
soon as practicable on or after the date of this Agreement. The party requesting
a copy of any Record shall bear the cost (based on standard accepted industry
charges to the extent applicable, as determined by the Receiver) for providing
such duplicate Records. A copy of each Record requested shall be provided as
soon as practicable by the party having custody thereof.
ARTICLE VII
BID; INITIAL PAYMENT
The Assuming Bank has submitted to the Receiver a positive bid of
9.388% of the Assumed Deposits for the Assets purchased and Liabilities Assumed
hereunder (the "Bid
P & A 991022 26 Reliance Bank,
White Plains, NY
Amount"). For purposes of determining the Bid Amount, adjustments will be made
to the amount of Assumed Deposits to the Settlement Date; thereafter, the Bid
Amount shall be fixed, regardless of any additions or reductions to the amount
of Assumed Deposits. On the Payment Date, the Assuming Bank will pay to the
Corporation, or the Corporation will pay to the Assuming Bank, as the case may
be, the Initial Payment, together with interest on such amount (if the Payment
Date is not the day following the day of Bank Closing Date) from and including
the day following Bank Closing Date to and including the day preceding the
Payment Date at the Settlement Interest Rate.
ARTICLE VIII
ADJUSTMENTS
8.1 PRO FORMA STATEMENT. It is understood that the determination of the
Initial Payment is based on the Receiver's best estimate of the Liabilities
Assumed and the Assets at Bank Closing Date. The Receiver, as soon as
practicable after Bank Closing Date, in accordance with the best information
then available, shall provide to the Assuming Bank a pro forma statement
reflecting any adjustments of such liabilities and assets as may be necessary.
Such pro forma statement shall take into account, to the extent possible, (i)
liabilities and assets of a nature similar to those contemplated by Section 2.1
or Section 3.1, respectively, which at Bank Closing Date were carried in the
Failed Bank's suspense accounts, (ii) accruals as of Bank Closing Date for all
income related to the assets and business of the Failed Bank acquired by the
Assuming Bank hereunder, whether or not such accruals were reflected on the
Accounting Records of the Failed Bank in the normal course of its operations,
and (iii) adjustments to determine the Book Value of any investment in an
Acquired Subsidiary and related accounts on the "bank only" (unconsolidated)
balance sheet of the Failed Bank based on the equity method of accounting,
whether or not the Failed Bank used the equity method of accounting for
investments in subsidiaries, except that the resulting amount cannot be less
than the Acquired Subsidiary's recorded equity as of Bank Closing Date as
reflected on the Accounting Records of the Acquired Subsidiary. Any Loan
purchased by the Assuming Bank pursuant to Section 3.1 which the Failed Bank
charged off during the period following the date of the Information Package to
Bank Closing Date shall be deemed not to be charged off for the purposes of the
pro forma statement, and the purchase price shall be determined pursuant to
Section 3.2.
8.2 CORRECTION OF ERRORS AND OMISSIONS: OTHER LIABILITIES.
-----------------------------------------------------
(a) In the event any bookkeeping omissions or errors are discovered in
preparing any pro forma statement or in completing the transfers and assumptions
contemplated hereby, the parties hereto agree to correct such errors and
omissions, it being understood that, as far as practicable, all adjustments will
be made consistent with the judgments, methods, policies or accounting
principles utilized by the Failed Bank in preparing and maintaining Accounting
Records, except that adjustments made pursuant to this Section 8.2(a) are not
intended to bring the Accounting Records of the Failed Bank into accordance with
generally accepted accounting principles.
P & A 991022 27 Reliance Bank,
White Plains, NY
(b) If the Receiver discovers at any time subsequent to the date of
this Agreement that any claim exists against the Failed Bank which is of such a
nature that it would have been included in the liabilities assumed under Article
II had the existence of such claim or the facts giving rise thereto been known
as of Bank Closing Date, the Receiver may, in its discretion, at any time,
require that such claim be assumed by the Assuming Bank in a manner consistent
with the intent of this Agreement. The Receiver will make appropriate
adjustments to the pro forma statement provided by the Receiver to the Assuming
Bank pursuant to Section 8.1 as may be necessary.
8.3 PAYMENTS. The Receiver agrees to cause to be paid to the Assuming
Bank, or the Assuming Bank agrees to pay to the Receiver, as the case may be, on
the Settlement Date, a payment in an amount which reflects net adjustments
(including any costs, expenses and fees associated with determinations of value
as provided in this Agreement) made pursuant to Section 8.1 or Section 8.2, plus
interest as provided in Section 8.4. The Receiver and the Assuming Bank agree to
effect on the Settlement Date any further transfer of assets to or assumption of
liabilities or claims by the Assuming Bank as may be necessary in accordance
with Section 8.1 or Section 8.2.
8.4 INTEREST. Any amounts paid under Section 8.3 or Section 8.5, shall
bear interest for the period from and including the day following Bank Closing
Date to and including the day preceding the payment at the Settlement Interest
Rate.
8.5 SUBSEQUENT ADJUSTMENTS. In the event that the Assuming Bank or the
Receiver discovers any errors or omissions as contemplated by Section 8.2 or any
error with respect to the payment made under Section 8.3 after the Settlement
Date, the Assuming Bank and the Receiver agree to promptly correct any such
errors or omissions, make any payments and effect any transfers or assumptions
as may be necessary to reflect any such correction plus interest as provided in
Section 8.4.
ARTICLE IX
CONTINUING COOPERATION
9.1 GENERAL MATTERS. The parties hereto agree that they will, in good
faith and with their best efforts, cooperate with each other to carry out the
transactions contemplated by this Agreement and to effect the purposes hereof.
9.2 ADDITIONAL TITLE DOCUMENTS. The Receiver, the Corporation and the
Assuming Bank each agree, at any time, and from time to time, upon the request
of any party hereto, to execute and deliver such additional instruments and
documents of conveyance as shall be reasonably necessary to vest in the
appropriate party its full legal or equitable title in and to the property
transferred pursuant to this Agreement or to be transferred in accordance
herewith. The Assuming Bank shall prepare such instruments and documents of
conveyance (in form and substance satisfactory to the Receiver) as shall be
necessary to vest title to the Assets in the Assuming Bank. The Assuming Bank
shall be responsible for recording such instruments and documents of conveyance
at its own expense.
P & A 991022 28 Reliance Bank,
White Plains, NY
9.3 CLAIMS AND SUITS.
----------------
(a) The Receiver shall have the right, in its discretion, to (i)
defend or settle any claim or suit against the Assuming Bank with respect to
which the Receiver has indemnified the Assuming Bank in the same manner and to
the same extent as provided in Article XII, and (ii) defend or settle any claim
or suit against the Assuming Bank with respect to any Liability Assumed, which
claim or suit may result in a loss to the Receiver arising out of or related to
this Agreement, or which existed against the Failed Bank on or before Bank
Closing Date. The exercise by the Receiver of any rights under this Section
9.3(a) shall not release the Assuming Bank with respect to any of its
obligations under this Agreement.
(b) In the event any action at law or in equity shall be instituted by
any Person against the Receiver and the Corporation as codefendants with respect
to any asset of the Failed Bank retained or acquired pursuant to this Agreement
by the Receiver, the Receiver agrees, at the request of the Corporation, to join
with the Corporation in a petition to remove the action to the United States
District Court for the proper district. The Receiver agrees to institute, with
or without joinder of the Corporation as coplaintiff, any action with respect to
any such retained or acquired asset or any matter connected therewith whenever
notice requiring such action shall be given by the Corporation to the Receiver.
9.4 PAYMENT OF DEPOSITS. In the event any depositor does not accept
the obligation of the Assuming Bank to pay any Deposit liability of the Failed
Bank assumed by the Assuming Bank pursuant to this Agreement and asserts a claim
against the Receiver for all or any portion of any such Deposit liability, the
Assuming Bank agrees on demand to provide to the Receiver funds sufficient to
pay such claim in an amount not in excess of the Deposit liability reflected on
the books of the Assuming Bank at the time such claim is made. Upon payment by
the Assuming Bank to the Receiver of such amount, the Assuming Bank shall be
discharged from any further obligation under this Agreement to pay to any such
depositor the amount of such Deposit liability paid to the Receiver.
9.5 WITHHELD PAYMENTS. At any time, the Receiver or the Corporation
may, in its discretion, determine that all or any portion of any deposit balance
assumed by the Assuming Bank pursuant to this Agreement does not constitute a
"Deposit" (or otherwise, in its discretion, determine that it is the best
interest of the Receiver or Corporation to withhold all or any portion of any
deposit), and may direct the Assuming Bank to withhold payment of all or any
portion of any such deposit balance. Upon such direction, the Assuming Bank
agrees to hold such deposit and not to make any payment of such deposit balance
to or on behalf of the depositor, or to itself, whether by way of transfer,
set-off, or otherwise. The Assuming Bank agrees to maintain the "withheld
payment" status of any such deposit balance until directed in writing by the
Receiver or the Corporation as to its disposition. At the direction of the
Receiver or the Corporation, the Assuming Bank shall return all or any portion
of such deposit balance to the Receiver or the Corporation, as appropriate, and
thereupon the Assuming Bank shall be discharged from any further liability to
such depositor with respect to such returned deposit balance. If such deposit
balance has been paid to the depositor prior to a demand for return by the
Corporation or the Receiver, and payment of such deposit balance had not been
previously withheld pursuant to this
P & A 991022 29 Reliance Bank,
White Plains, NY
Section, the Assuming Bank shall not be obligated to return such deposit balance
to the Receiver or the Corporation. The Assuming Bank shall be obligated to
reimburse the Corporation or the Receiver, as the case may be, for the amount of
any deposit balance or portion thereof paid by the Assuming Bank in
contravention of any previous direction to withhold payment of such deposit
balance or return such deposit balance the payment of which was withheld
pursuant to this Section.
9.6 PROCEEDINGS WITH RESPECT TO CERTAIN ASSETS AND LIABILITIES.
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(a) In connection with any investigation, proceeding or other matter
with respect to any asset or liability of the Failed Bank retained by the
Receiver, or any asset of the Failed Bank acquired by the Receiver pursuant to
this Agreement, the Assuming Bank shall cooperate to the extent reasonably
required by the Receiver.
(b) In addition to its obligations under Section 6.4, the Assuming
Bank shall provide representatives of the Receiver access at reasonable times
and locations without other limitation or qualification to (i) its directors,
officers, employees and agents and those of the Acquired Subsidiaries, and (ii)
its books and records, the books and records of the Acquired Subsidiaries and
all Loan Files, and copies thereof. Copies of books, records and Loan Files
shall be provided by the Assuming Bank as requested by the Receiver and the
costs of duplication thereof shall be borne by the Receiver.
(c) Not later than ten (10) days after the Put Notice pursuant to
Section 3.4 or the date of the notice of transfer of any Loan by the Assuming
Bank to the Receiver pursuant to Section 3.6, the Assuming Bank shall deliver to
the Receiver such documents with respect to such Loan as the Receiver may
request, including without limitation the following: (i) all related Credit
Documents (other than certificates, notices and other ancillary documents), (ii)
a certificate setting forth the principal amount on the date of the transfer and
the amount of interest, fees and other charges then accrued and unpaid thereon,
and any restrictions on transfer to which any such Loan is subject, and (iii)
all Loan Files, and all documents, microfiche, microfilm and computer records
(including but not limited to magnetic tape, disc storage, card forms and
printed copy) maintained by, owned by, or in the possession of the Assuming Bank
or any Affiliate of the Assuming Bank relating to the transferred Loan.
9.7 INFORMATION. The Assuming Bank promptly shall provide to the
Corporation such other information, including financial statements and
computations, relating to the performance of the provisions of this Agreement as
the Corporation or the Receiver may request from time to time, and, at the
request of the Receiver, make available employees of the Failed Bank employed or
retained by the Assuming Bank to assist in preparation of the pro forma
statement pursuant to Section 8.1.
P & A 991022 00 Xxxxxxxx Xxxx,
Xxxxx Xxxxxx, XX
ARTICLE X
CONDITION PRECEDENT
The obligations of the parties to this Agreement are subject to the
Receiver and the Corporation having received at or before Bank Closing Date
evidence reasonably satisfactory to each of any necessary approval, waiver, or
other action by any governmental authority, the board of directors of the
Assuming Bank, or other third party, with respect to this Agreement and the
transactions contemplated hereby, the closing of the Failed Bank and the
appointment of the Receiver, the chartering of the Assuming Bank, and any
agreements, documents, matters or proceedings contemplated hereby or thereby.
ARTICLE XI
REPRESENTATIONS AND WARRANTIES OF THE ASSUMING BANK
The Assuming Bank represents and warrants to the Corporation and the
Receiver as follows:
(a) CORPORATE EXISTENCE AND AUTHORITY. The Assuming Bank (i) is duly
organized, validly existing and in good standing under the laws of its
Chartering Authority and has full power and authority to own and operate its
properties and to conduct its business as now conducted by it, and (ii) has full
power and authority to execute and deliver this Agreement and to perform its
obligations hereunder. The Assuming Bank has taken all necessary corporate
action to authorize the execution, delivery and performance of this Agreement
and the performance of the transactions contemplated hereby.
(b) THIRD PARTY CONSENTS. No governmental authority or other third
party consents (including but not limited to approvals, licenses, registrations
or declarations) are required in connection with the execution, delivery or
performance by the Assuming Bank of this Agreement, other than such consents as
have been duly obtained and are in full force and effect.
(c) EXECUTION AND ENFORCEABILITY. This Agreement has been duly
executed and delivered by the Assuming Bank and when this Agreement has been
duly authorized, executed and delivered by the Corporation and the Receiver,
this Agreement will constitute the legal, valid and binding obligation of the
Assuming Bank, enforceable in accordance with its terms.
(d) COMPLIANCE WITH LAW.
-------------------
(i) Neither the Assuming Bank nor any of its Subsidiaries is in
violation of any statute, regulation, order, decision, judgment or decree of, or
any restriction imposed by, the United States of America, any State,
municipality or other political subdivision or any agency of any of the
foregoing, or any court or other tribunal having jurisdiction over the Assuming
Bank or any of its Subsidiaries or any assets of any such Person, or any foreign
government or agency thereof having such jurisdiction, with respect to the
conduct of the business of the Assuming Bank or of any of its Subsidiaries, or
the ownership of the properties of the Assuming Bank or any of its Subsidiaries,
which, either individually or in the aggregate with all other such
P & A 991022 31 Reliance Bank,
White Plains, NY
violations, would materially and adversely affect the business, operations or
condition (financial or otherwise) of the Assuming Bank or the ability of the
Assuming Bank to perform, satisfy or observe any obligation or condition under
this Agreement.
(ii) Neither the execution and delivery nor the performance by the
Assuming Bank of this Agreement will result in any violation by the Assuming
Bank of, or be in conflict with, any provision of any applicable law or
regulation, or any order, writ or decree of any court or governmental authority.
(e) REPRESENTATIONS REMAIN TRUE. The Assuming Bank represents and
warrants that it has executed and delivered to the Corporation a Purchaser
Eligibility Certification and Confidentiality Agreement and that all information
provided and representations made by or on behalf of the Assuming Bank in
connection with this Agreement and the transactions contemplated hereby,
including, but not limited to, the Purchaser Eligibility Certification and
Confidentiality Agreement (which are affirmed and ratified hereby) are and
remain true and correct in all material respects and do not fail to state any
fact required to make the information contained therein not misleading.
ARTICLE XII
INDEMNIFICATION
12.1 INDEMNIFICATION OF INDEMNITEES. From and after Bank Closing Date
and subject to the limitations set forth in this Section and Section 12.6 and
compliance by the Indemnitees with Section 12.2, the Receiver agrees to
indemnify and hold harmless the Indemnitees against any and all costs, losses,
liabilities, expenses (including attorneys' fees) incurred prior to the
assumption of defense by the Receiver pursuant to paragraph (d) of Section 12.2,
judgments, fines and amounts paid in settlement actually and reasonably incurred
in connection with claims against any Indemnitee based on liabilities of the
Failed Bank that are not assumed by the Assuming Bank pursuant to this Agreement
or subsequent to the execution hereof by the Assuming Bank or any Subsidiary or
Affiliate of the Assuming Bank for which indemnification is provided hereunder
in (a) of this Section 12.1, subject to certain exclusions as provided in (b) of
this Section 12.1:
(a)
(1) claims based on the rights of any shareholder or former
shareholder as such of (x) the Failed Bank, or (y) any Subsidiary or Affiliate
of the Failed Bank;
(2) claims based on the rights of any creditor as such of the
Failed Bank, or any creditor as such of any director, officer, employee or agent
of the Failed Bank, with respect to any indebtedness or other obligation of the
Failed Bank arising prior to Bank Closing Date;
(3) claims based on the rights of any present or former director,
officer, employee or agent as such of the Failed Bank or of any Subsidiary or
Affiliate of the Failed Bank;
P & A 991022 32 Reliance Bank,
White Plains, NY
(4) claims based on any action or inaction prior to Bank Closing
Date of the Failed Bank, its directors, officers, employees or agents as such,
or any Subsidiary or Affiliate of the Failed Bank, or the directors, officers,
employees or agents as such of such Subsidiary or Affiliate;
(5) claims based on any malfeasance, misfeasance or nonfeasance
of the Failed Bank, its directors, officers, employees or agents with respect to
the trust business of the Failed Bank, if any;
(6) claims based on any failure or alleged failure (not in
violation of law) by the Assuming Bank to continue to perform any service or
activity previously performed by the Failed Bank which the Assuming Bank is not
required to perform pursuant to this Agreement or which arise under any contract
to which the Failed Bank was a party which the Assuming Bank elected not to
assume in accordance with this Agreement and which neither the Assuming Bank nor
any Subsidiary or Affiliate of the Assuming Bank has assumed subsequent to the
execution hereof;
(7) claims arising from any action or inaction of any Indemnitee,
including for purposes of this Section 12.1(a)(7) the former officers or
employees of the Failed Bank or of any Subsidiary or Affiliate of the Failed
Bank that is taken upon the specific written direction of the Corporation or the
Receiver, other than any action or inaction taken in a manner constituting bad
faith, gross negligence or willful misconduct; and
(8) claims based on the rights of any depositor of the Failed
Bank whose deposit has been accorded "withheld payment" status and/or returned
to the Receiver or Corporation in accordance with Section 9.5 and/or has become
an "unclaimed deposit" or has been returned to the Corporation or the Receiver
in accordance with Section 2.3;
(b) provided, that, with respect to this Agreement, except for
paragraphs (7) and (8) of Section 12.1(a), no indemnification will be provided
under this Agreement for any:
(1) judgment or fine against, or any amount paid in settlement
(without the written approval of the Receiver) by, any Indemnitee in connection
with any action that seeks damages against any Indemnitee (a "counterclaim")
arising with respect to any Asset and based on any action or inaction of either
the Failed Bank, its directors, officers, employees or agents as such prior to
Bank Closing Date, unless any such judgment, fine or amount paid in settlement
exceeds the greater of (i) the Repurchase Price of such Asset, or (ii) the
monetary recovery sought on such Asset by the Assuming Bank in the cause of
action from which the counterclaim arises; and in such event the Receiver will
provide indemnification only in the amount of such excess; and no
indemnification will be provided for any costs or expenses other than any costs
or expenses (including attorneys' fees) which, in the determination of the
Receiver, have been actually and reasonably incurred by such Indemnitee in
connection with the defense of any such counterclaim; and it is expressly agreed
that the Receiver reserves the right to intervene, in its discretion, on its
behalf and/or on behalf of the Receiver, in the defense of any such
counterclaim;
P & A 991022 33 Reliance Bank,
White Plains, NY
(2) claims with respect to any liability or obligation of the
Failed Bank that is expressly assumed by the Assuming Bank pursuant to this
Agreement or subsequent to the execution hereof by the Assuming Bank or any
Subsidiary or Affiliate of the Assuming Bank;
(3) claims with respect to any liability of the Failed Bank to
any present or former employee as such of the Failed Bank or of any Subsidiary
or Affiliate of the Failed Bank, which liability is expressly assumed by the
Assuming Bank pursuant to this Agreement or subsequent to the execution hereof
by the Assuming Bank or any Subsidiary or Affiliate of the Assuming Bank;
(4) claims based on the failure of any Indemnitee to seek
recovery of damages from the Receiver for any claims based upon any action or
inaction of the Failed Bank, its directors, officers, employees or agents as
fiduciary, agent or custodian prior to Bank Closing Date;
(5) claims based on any violation or alleged violation by any
Indemnitee of the antitrust, branching, banking or bank holding company or
securities laws of the United States of America or any State thereof;
(6) claims based on the rights of any present or former creditor,
customer, or supplier as such of the Assuming Bank or any Subsidiary or
Affiliate of the Assuming Bank;
(7) claims based on the rights of any present or former
shareholder as such of the Assuming Bank or any Subsidiary or Affiliate of the
Assuming Bank regardless of whether any such present or former shareholder is
also a present or former shareholder of the Failed Bank;
(8) claims, if the Receiver determines that the effect of
providing such indemnification would be to (i) expand or alter the provisions of
any warranty or disclaimer thereof provided in Section 3.3 or any other
provision of this Agreement, or (ii) create any warranty not expressly provided
under this Agreement;
(9) claims which could have been enforced against any Indemnitee
had the Assuming Bank not entered into this Agreement;
(10) claims based on any liability for taxes or fees assessed
with respect to the consummation of the transactions contemplated by this
Agreement, including without limitation any subsequent transfer of any Assets or
Liabilities Assumed to any Subsidiary or Affiliate of the Assuming Bank;
(11) except as expressly provided in this Article XII, claims
based on any action or inaction of any Indemnitee, and nothing in this Agreement
shall be construed to provide indemnification for (i) the Failed Bank, (ii) any
Subsidiary or Affiliate of the Failed Bank, or (iii) any present or former
director, officer, employee or agent of the Failed Bank or its Subsidiaries or
Affiliates; provided, that the Receiver, in its discretion, may provide
indemnification hereunder for any present or former director, officer, employee
or agent of the Failed Bank or its Subsidiaries or Affiliates who is also or
becomes a director, officer, employee or agent of the Assuming Bank or its
Subsidiaries or Affiliates;
P & A 991022 34 Reliance Bank,
White Plains, NY
(12) claims or actions which constitute a breach by the Assuming
Bank of the representations and warranties contained in Article XI;
(13) claims arising out of or relating to the condition of or
generated by an Asset arising from or relating to the presence, storage or
release of any hazardous or toxic substance, or any pollutant or contaminant, or
condition of such Asset which violate any applicable Federal, State or local law
or regulation concerning environmental protection; and
(14) claims based on, related to or arising from any asset,
including a loan, acquired or liability assumed by the Assuming Bank, other than
pursuant to this Agreement.
12.2 CONDITIONS PRECEDENT TO INDEMNIFICATION. It shall be a condition
precedent to the obligation of the Receiver to indemnify any Person pursuant to
this Article XII that such Person shall, with respect to any claim made or
threatened against such Person for which such Person is or may be entitled to
indemnification hereunder:
(a) give written notice to the Regional Counsel (Litigation Branch) of
the Corporation in the manner and at the address provided in Section 13.7 of
such claim as soon as practicable after such claim is made or threatened;
provided, that notice must be given on or before the date which is six (6) years
from the date of this Agreement;
(b) provide to the Receiver such information and cooperation with
respect to such claim as the Receiver may reasonably require;
(c) cooperate and take all steps, as the Receiver may reasonably
require, to preserve and protect any defense to such claim;
(d) in the event suit is brought with respect to such claim, upon
reasonable prior notice, afford to the Receiver the right, which the Receiver
may exercise in its sole discretion, to conduct the investigation, control the
defense and effect settlement of such claim, including without limitation the
right to designate counsel and to control all negotiations, litigation,
arbitration, settlements, compromises and appeals of any such claim, all of
which shall be at the expense of the Receiver; provided, that the Receiver shall
have notified the Person claiming indemnification in writing that such claim is
a claim with respect to which the Person claiming indemnification is entitled to
indemnification under this Article XII;
(e) not incur any costs or expenses in connection with any response or
suit with respect to such claim, unless such costs or expenses were incurred
upon the written direction of the Receiver; provided, that the Receiver shall
not be obligated to reimburse the amount of any such costs or expenses unless
such costs or expenses were incurred upon the written direction of the Receiver;
(f) not release or settle such claim or make any payment or admission
with respect thereto, unless the Receiver consents in writing thereto, which
consent shall not be unreasonably withheld; provided, that the Receiver shall
not be obligated to reimburse the amount of any such
P & A 991022 35 Reliance Bank,
White Plains, NY
settlement or payment unless such settlement or payment was effected upon the
written direction of the Receiver; and
(g) take reasonable action as the Receiver may request in writing as
necessary to preserve, protect or enforce the rights of the indemnified Person
against any Primary Indemnitor.
12.3 NO ADDITIONAL WARRANTY. Nothing in this Article XII shall be
construed or deemed to (i) expand or otherwise alter any warranty or disclaimer
thereof provided under Section 3.3 or any other provision of this Agreement with
respect to, among other matters, the title, value, collectibility, genuineness,
enforceability or condition of any (x) Asset, or (y) asset of the Failed Bank
purchased by the Assuming Bank subsequent to the execution of this Agreement by
the Assuming Bank or any Subsidiary or Affiliate of the Assuming Bank, or (ii)
create any warranty not expressly provided under this Agreement with respect
thereto.
12.4 INDEMNIFICATION OF RECEIVER AND CORPORATION. From and after Bank
Closing Date, the Assuming Bank agrees to indemnify and hold harmless the
Corporation and the Receiver and their respective directors, officers, employees
and agents from and against any and all costs, losses, liabilities, expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred in connection with any of the following:
(a) claims based on any and all liabilities or obligations of the
Failed Bank assumed by the Assuming Bank pursuant to this Agreement or
subsequent to the execution hereof by the Assuming Bank or any Subsidiary or
Affiliate of the Assuming Bank, whether or not any such liabilities subsequently
are sold and/or transferred, other than any claim based upon any action or
inaction of any Indemnitee as provided in paragraph (7) or (8) of Section
12.1(a); and
(b) claims based on any act or omission of any Indemnitee (including
but not limited to claims of any Person claiming any right or title by or
through the Assuming Bank with respect to Assets transferred to the Receiver
pursuant to Section 3.4 or 3.6), other than any action or inaction of any
Indemnitee as provided in paragraph (7) or (8) of Section 12.1(a).
12.5 OBLIGATIONS SUPPLEMENTAL. The obligations of the Receiver, and
the Corporation as guarantor in accordance with Section 12.7, to provide
indemnification under this Article XII are to supplement any amount payable by
any Primary Indemnitor to the Person indemnified under this Article XII.
Consistent with that intent, the Receiver agrees only to make payments pursuant
to such indemnification to the extent not payable by a Primary Indemnitor. If
the aggregate amount of payments by the Receiver, or the Corporation as
guarantor in accordance with Section 12.7, and all Primary Indemnitors with
respect to any item of indemnification under this Article XII exceeds the amount
payable with respect to such item, such Person being indemnified shall notify
the Receiver thereof and, upon the request of the Receiver, shall promptly pay
to the Receiver, or the Corporation as appropriate, the amount of the Receiver's
(or Corporation's) payments to the extent of such excess.
12.6 CRIMINAL CLAIMS. Notwithstanding any provision of this Article
XII to the contrary, in the event that any Person being indemnified under this
Article XII shall become involved in any criminal action, suit or proceeding,
whether judicial, administrative or
P & A 991022 36 Reliance Bank,
White Plains, NY
investigative, the Receiver shall have no obligation hereunder to indemnify such
Person for liability with respect to any criminal act or to the extent any costs
or expenses are attributable to the defense against the allegation of any
criminal act, unless (i) the Person is successful on the merits or otherwise in
the defense against any such action, suit or proceeding, or (ii) such action,
suit or proceeding is terminated without the imposition of liability on such
Person.
12.7 LIMITED GUARANTY OF THE CORPORATION. The Corporation hereby
guarantees performance of the Receiver's obligation to indemnify the Assuming
Bank as set forth in this Article XII. It is a condition to the Corporation's
obligation hereunder that the Assuming Bank shall comply in all respects with
the applicable provisions of this Article XII. The Corporation shall be liable
hereunder only for such amounts, if any, as the Receiver is obligated to pay
under the terms of this Article XII but shall fail to pay. Except as otherwise
provided above in this Section 12.7, nothing in this Article XII is intended or
shall be construed to create any liability or obligation on the part of the
Corporation, the United States of America or any department or agency thereof
under or with respect to this Article XII, or any provision hereof, it being the
intention of the parties hereto that the obligations undertaken by the Receiver
under this Article XII are the sole and exclusive responsibility of the Receiver
and no other Person or entity.
12.8 SUBROGATION. Upon payment by the Receiver, or the Corporation as
guarantor in accordance with Section 12.7, to any Indemnitee for any claims
indemnified by the Receiver under this Article XII, the Receiver, or the
Corporation as appropriate, shall become subrogated to all rights of the
Indemnitee against any other Person to the extent of such payment.
ARTICLE XIII
MISCELLANEOUS
13.1 ENTIRE AGREEMENT. This Agreement embodies the entire agreement of
the parties hereto in relation to the subject matter herein and supersedes all
prior understandings or agreements, oral or written, between the parties.
13.2 HEADINGS. The headings and subheadings of the Table of Contents,
Articles and Sections contained in this Agreement, except the terms identified
for definition in Article I and elsewhere in this Agreement, are inserted for
convenience only and shall not affect the meaning or interpretation of this
Agreement or any provision hereof.
13.3 COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the duly authorized representative of a different party
hereto on separate counterparts, each of which when so executed shall be deemed
to be an original and all of which when taken together shall constitute one and
the same Agreement.
13.4 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE FEDERAL LAW
OF THE UNITED STATES OF AMERICA, AND IN THE ABSENCE OF CONTROLLING FEDERAL LAW,
IN ACCORDANCE WITH
P & A 991022 37 Reliance Bank,
White Plains, NY
THE LAWS OF THE STATE IN WHICH THE MAIN OFFICE OF THE FAILED BANK IS LOCATED.
13.5 SUCCESSORS. All terms and conditions of this Agreement shall be
binding on the successors and assigns of the Receiver, the Corporation and the
Assuming Bank. Except as otherwise specifically provided in this Agreement,
nothing expressed or referred to in this Agreement is intended or shall be
construed to give any Person other than the Receiver, the Corporation and the
Assuming Bank any legal or equitable right, remedy or claim under or with
respect to this Agreement or any provisions contained herein, it being the
intention of the parties hereto that this Agreement, the obligations and
statements of responsibilities hereunder, and all other conditions and
provisions hereof are for the sole and exclusive benefit of the Receiver, the
Corporation and the Assuming Bank and for the benefit of no other Person.
13.6 MODIFICATION; ASSIGNMENT. No amendment or other modification,
rescission, release, or assignment of any part of this Agreement shall be
effective except pursuant to a written agreement subscribed by the duly
authorized representatives of the parties hereto.
13.7 NOTICE. Any notice, request, demand, consent, approval or other
communication to any party hereto shall be effective when received and shall be
given in writing, and delivered in person against receipt therefor, or sent by
certified mail, postage prepaid, courier service, telex or facsimile
transmission to such party (with copies as indicated below) at its address set
forth below or at such other address as it shall hereafter furnish in writing to
the other parties. All such notices and other communications shall be deemed
given on the date received by the addressee.
ASSUMING BANK
-------------
Union State Bank,
000 Xxxxx Xxxx Xxxx
Xxxxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
Senior Executive Vice President
with a copy to: Xxxxx X Xxxxxx, SVP
Telephone: 000-000-0000 & 000-000-0000
Fax: 000-000-0000
RECEIVER AND CORPORATION
------------------------
Federal Deposit Insurance Corporation,
Receiver of Reliance Bank, White Plains, New York
0000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Deputy Director (DRR-Field Operations Branch)
P & A 991022 38 Reliance Bank,
White Plains, NY
with copy to: Regional Counsel (Litigation Branch)
AND WITH RESPECT TO NOTICES UNDER ARTICLE XII:
Federal Deposit Insurance Corporation
Receiver of Reliance Bank, White Plains, New York
0000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Regional Counsel (Litigation Branch)
13.8 MANNER OF PAYMENT. All payments due under this Agreement shall
be in lawful money of the United States of America in immediately available
funds as each party hereto may specify to the other parties; provided, that in
the event the Receiver or the Corporation is obligated to make any payment
hereunder in the amount of $25,000.00 or less, such payment may be made by
check.
13.9 COSTS, FEES AND EXPENSES. Except as otherwise specifically
provided herein, each party hereto agrees to pay all costs, fees and expenses
which it has incurred in connection with or incidental to the matters contained
in this Agreement, including without limitation any fees and disbursements to
its accountants and counsel; provided, !hm the Assuming Bank shall pay all fees,
costs and expenses (other than attorneys' fees incurred by the Receiver)
incurred in connection with the transfer to it of any Assets or Liabilities
Assumed hereunder or in accordance herewith.
13.10 WAIVER. Each of the Receiver, the Corporation and the Assuming
Bank may waive its respective rights, powers or privileges under this Agreement;
provided, that such waiver shall be in writing; and further provided, that no
failure or delay on the part of the Receiver, the Corporation or the Assuming
Bank to exercise any right, power or privilege under this Agreement shall
operate as a waiver thereof, nor will any single or partial exercise of any
right, power or privilege under this Agreement preclude any other or further
exercise thereof or the exercise of any other right, power or privilege by the
Receiver, the Corporation, or the Assuming Bank under this Agreement, nor will
any such waiver operate or be construed as a future waiver of such right, power
or privilege under this Agreement.
13.11 SEVERABILITY. If any provision of this Agreement is declared
invalid or unenforceable, then, to the extent possible, all of the remaining
provisions of this Agreement shall remain in full force and effect and shall be
binding upon the parties hereto.
13.12 TERM OF AGREEMENT. This Agreement shall continue in full force
and effect until the sixth (6th) anniversary of Bank Closing Date; provided,
that the provisions of Section 6.3 and 6.4 shall survive the expiration of the
term of this Agreement. Provided, however, the receivership of the Failed Bank
may be terminated prior to the expiration of the term of this Agreement; in such
event, the guaranty of the Corporation, as provided in and in accordance with
the provisions of Section 12.7 shall be in effect for the remainder of the term.
Expiration of the
P & A 991022 39 Reliance Bank,
White Plains, NY
term of this Agreement shall not affect any claim or liability of any party with
respect to any (i) amount which is owing at the time of such expiration,
regardless of when such amount becomes payable, and (ii) breach of this
Agreement occurring prior to such expiration, regardless of when such breach is
discovered.
13.13 SURVIVAL OF COVENANTS, ETC. The covenants, representations, and
warranties in this Agreement shall survive the execution of this Agreement and
the consummation of the transactions contemplated hereunder.
[SIGNATURE PAGE FOLLOWS]
P & A 991022 40 Reliance Bank,
White Plains, NY
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized representatives as of the date first above
written.
FEDERAL DEPOSIT INSURANCE CORPORATION,
RECEIVER OF RELIANCE BANK
WHITE PLAINS, NY
BY: /s/ Xxxxxx Xxxxxxx
------------------------------------------
Xxxxxx Xxxxxxx
TITLE: Receiver In Charge & Attorney In Fact
Attest:
/s/ Xxxxxx Celeman
------------------
FEDERAL DEPOSIT INSURANCE CORPORATION
BY: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------------
Xxxxxx X. Xxxxxxxxx
TITLE: Supervisory Resolutions & Receiverships
Specialist & Attorney In Fact
Attest:
/s/ Xxxxxx Celeman
------------------
UNION STATE BANK
NANUET, NEW YORK
BY: /s/ Xxxxxx X. Sabatim
------------------------------------------
PRINTED NAME: Xxxxxx X. Sabatim
TITLE: Sr. Exec. V.P. & CFO
Attest:
/s/ Xxxxxxxxx X. Veur
---------------------
P & A 991022 41 Reliance Bank,
White Plains, NY
SCHEDULE 2.1 - CERTAIN LIABILITIES ASSUMED
P & A 991022 42 Reliance Bank,
White Plains, NY
SCHEDULE 3.1 - CERTAIN ASSETS PURCHASED
P & A 991022 43 Reliance Bank,
White Plains, NY
SCHEDULE 3.1(e) - LOANS SECURED, IN WHOLE OR IN PART, BY ASSUMED DEPOSITS OR
DEPOSITS AT OTHER DEPOSITORY INSTITUTIONS
SEE ATTACHED LIST
THE LIST(S), IF ANY, ATTACHED TO THIS SCHEDULE (OR SUBSCHEDULE(S)) AND THE
INFORMATION THEREIN, IS AS OF THE INFORMATION PACKAGE DATE. IT WILL BE ADJUSTED
TO REFLECT THE COMPOSITION AND BOOK VALUE OF THE LOANS AS OF THE DATE OF BANK
CLOSING DATE. THE LIST(S), IF ANY , MAY BE REPLACED WITH A MORE ACCURATE LIST
POST CLOSING. THE POST CLOSING LIST(S) MAY REFLECT ALL, SOME, OR NONE OF THE
LOANS THAT MEET THE CRITERIA OF DEPOSIT SECURED LOANS AND MAY CONTAIN LOANS NOT
PREVIOUSLY LISTED FOR THIS SCHEDULE.
P & A 991022 44 Reliance Bank,
White Plains, NY
SCHEDULE 3.1(i) - ACQUIRED SUBSIDIARIES
NONE
P & A 991022 45 Reliance Bank,
White Plains, NY
SCHEDULE 3.2 - PURCHASE PRICE OF ASSETS OR ASSETS
(a) cash and receivables from depository Book Value
institutions, including cash
items in the process of collection,
plus interest thereon:
(b) securities (exclusive of the capital stock As provided in
of Acquired Subsidiaries), plus interest Section 3.2(b)
thereon:
(c) federal funds sold and repurchase Book Value
agreements, if any, including
interest thereon:
(d) Omitted: Book Value
(e) Loans purchased pursuant to Section 3.1(e): Book Value
(f) credit card business, if any, including all Book Value
outstanding extensions of credit:
Safe Deposit Boxes and related business, Fair Market Value
safekeeping business and trust business,
if any:
Records and other documents: Book Value
(i) capital stock of any Acquired Subsidiaries: Fair Market Value
(j) amounts owed to the Failed Bank by any Fair Market Value
Acquired Subsidiary:
assets securing Deposits of public money, Fair Market Value
to the extent not otherwise purchased
hereunder:
(1) Overdrafts of customers: Book Value
ASSETS SUBJECT TO AN OPTION TO PURCHASE:
(a) Bank Premises: Fair Market Value
P & A 991022 46 Reliance Bank,
White Plains, NY
(b) Furniture and Equipment: $11,760.00
(c) Fixtures: $0, if purchased with
Furniture and Equipment and
Bank Premises option
exercised; otherwise, Fair
Market Value
(d) Other Equipment: Fair Market Value
P & A 991022 47 Reliance Bank,
White Plains, NY
SCHEDULE 3.5(k) - SECURITIES NOT PURCHASED
AS SPECIFIED IN SECTION 3.5
P & A 991022 48 Reliance Bank,
White Plains, NY
EXHIBIT 4.13
INTERIM ASSET SERVICING ARRANGEMENT
(a) With respect to each asset (or liability) designated from time to
time by the Receiver to be serviced by the Assuming Bank pursuant to this
Arrangement (such being designated as "Pool Assets"), during the term of this
Arrangement, the Assuming Bank shall:
(i) Promptly apply payments received with respect to any Pool
Assets;
(ii) Reverse and return insufficient funds checks;
(iii) Pay (A) participation payments to participants in Loans, as
and when received; and (B) tax and insurance bills on Pool Assets as they come
due, out of escrow funds maintained for purposes;
(iv) Maintain accurate records reflecting (A) the payment history
of Pool Assets, with updated information received concerning changes in the
address or identity of the obligors and (B) usage of data processing equipment
and employee services with respect to servicing duties;
(v) Send billing statements to obligors on Pool Assets to the
extent that such statements were sent by the Failed Bank;
(vi) Send notices to obligors who are in default on Loans (in the
same manner as the Failed Bank);
(vii) Send to the Receiver, Attn: Managing Liquidator, at the
address provided in Section 13.7 of the Agreement, via overnight delivery: (A)
on a weekly basis, weekly reports for the Pool Assets, including, without
limitation, reports reflecting collections and the trial balances, transaction
journals and loan histories for Pool Assets having activity, together with
copies of (1) checks received, (2) insufficient funds checks returned, (3)
checks for payment to participants or for taxes and insurance, (4) pay-off
requests, (5) notices to defaulted obligors, and (6) data processing and
employee logs and (B) any other reports, copies or information as may be
periodically or from time to time requested;
(viii) Remit on a weekly basis to the Receiver, Attn: Division of
Finance, Cashier Unit, Operations, at the address in (vii), via wire transfer to
the account designated by the Receiver, all payments received on Pool Assets
managed by the Assuming Bank or at such time and place and in such manner as may
be directed by the Receiver;
(ix) prepare and timely file all information reports with
appropriate tax authorities, and, if required by the Receiver, prepare and file
tax returns and pay taxes due on or before the due date, relating to the Pool
Assets; and
(x) provide and furnish such other services, operations or
functions as may be required with regard to Pool Assets, including, without
limitation, as may be required with regard
P & A 991022 49 Reliance Bank,
White Plains, NY
to any business, enterprise or agreement which is a Pool Asset, all as may be
required by the Receiver.
Notwithstanding anything to the contrary in this Section, the Assuming Bank
shall not be required to initiate litigation or other collection proceedings
against any obligor or any collateral with respect to any defaulted Loan. The
Assuming Bank shall promptly notify the Receiver, at the address provided above
in subparagraph (a)(vii), of any claims or legal actions regarding any Pool
Asset.
(b) The Receiver agrees to reimburse the Assuming Bank for actual,
reasonable and necessary expenses incurred in connection with the performance of
duties pursuant to this Arrangement, including expenses of photocopying, postage
and express mail, and data processing and employee services (based upon the
number of hours spent performing servicing duties).
(c) The Assuming Bank shall provide the services described herein for
an initial period of ninety (90) days after Bank Closing Date. At the option of
the Receiver, exercisable by notice given not later than ten (10) days prior to
the end of such initial period or a renewal period, the Assuming Bank shall
continue to provide such services for such renewal period(s) as designated by
the Receiver, up to the Settlement Date.
(d) At any time during the term of this Arrangement, the Receiver may,
upon written notice to the Assuming Bank, remove one or more Pool Assets from
the Pool, at which time the Assuming Bank's responsibility with respect thereto
shall terminate.
(e) At the expiration of this Agreement or upon the termination of the
Assuming Bank's responsibility with respect to any Pool Asset pursuant to
paragraph (d) hereof, the Assuming Bank shall:
(i) deliver to the Receiver (or its designee) all of the Credit
Documents and Pool Records relating to the Pool Assets; and
(ii) cooperate with the Receiver to facilitate the orderly
transition of managing the Pool Assets to the Receiver (or its designee).
(f) At the request of the Receiver, the Assuming Bank shall perform
such transitional services with regard to the Pool Assets as the Receiver may
request. Transitional services may include, without limitation, assisting in any
due diligence process deemed necessary by the Receiver and providing to the
Receiver or its designee(s) (x) information and data regarding the Pool Assets,
including, without limitation, system reports and data downloads sufficient to
transfer the Pool Assets to another system or systems, and (y) access to
employees of the Assuming Bank involved in the management of, or otherwise
familiar with, the Pool Assets.
P & A 991022 50 Reliance Bank,
White Plains, NY
