Exhibit 99(b)
THIS AGREEMENT is entered into as of November 21, 1995,
between XXXXXXXXX FEDERAL SAVINGS BANK a federal stock savings
bank with offices at 000 Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx
00000 ("Seller"); and XXXXXX UNITED BANK, a New Jersey-chartered
bank with offices at 0000 XxxXxxxxx Xxxxxxxxx, Xxxxxx, Xxx Xxxxxx
00000 ("Purchaser").
WITNESSETH:
WHEREAS, Seller and Purchaser are each engaged in the
banking business in the State of New Jersey, with the deposits of
Seller being insured by the Bank Insurance Fund ("BIF") of the
Federal Deposit Insurance Corporation ("FDIC") and the deposits
of Purchaser being insured by the BIF;
WHEREAS, Seller operates three (3) branch offices (the
"Branch Offices") located in the State of New Jersey, as set
forth below:
Owned Branch Offices:
1. Rahway Branch
0000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxx Xxxxxx, Xxx Xxxxxx 00000
2. Fords Branch
000 Xxxx Xxxxxx Xxxx
Xxxxx, Xxxxxxxxx Xxxxxx, Xxx Xxxxxx 00000
Leased Branch Office:
3. Cliffside Park Branch
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx Xxxx, Xxxxxx Xxxxxx, Xxx Xxxxxx 00000
WHEREAS, Purchaser has agreed, subject to the terms and
conditions hereof, to assume the deposit liabilities of Seller at
the foregoing Branch Offices and Seller has agreed, subject to
the terms and conditions here of, to assign or convey to
Purchaser all of Seller's right, title and interest as owner or
tenant, as the case may be, in each Branch Office, together, in
each case, with certain personal property owned by Seller and
located at such Branch Off ices all as more fully provided for
hereinafter;
WHEREAS, Purchaser and Seller have each agreed to file such
applications as are required by applicable federal or state laws
or regulations or necessary in order for Purchaser and Seller to
be legally able to consummate the transactions contemplated
hereby.
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which is acknowledged by the parties,
Seller and Purchaser agree as follows:
ARTICLE I
Defined Terms
Section 1.01. Definitions. Terms defined in the foregoing
recitals shall have the meaning ascribed to them in this
Agreement. In addition, the following terms used in this
Agreement shall have the following meanings:
(a) "Account Loan" shall mean a loan owned by Seller as of
the Closing Date that is fully secured by a Deposit Account and
any Overdraft Loan.
(b) "Account Loan Assignment and Assumption Agreement"
shall mean the Account Loan Assignment and Assumption Agreement
in the form of Exhibit 1.01(b).
(c) "Actual Cash" shall have the meaning set forth in
Section 12.01.
(d) "Actual Deposits" shall have the meaning set forth in
Section 12.01.
(e) "Actual Loans" shall have the meaning set forth in
Section 12.01.
(f) "Actual Payment" shall have the meaning set forth in
Section 12.01.
(g) "Assignment of Branch Lease and Assumption Agreement"
shall mean the Assignment of Branch Lease and Assumption
Agreement in the form of Exhibit 1.01(g).
(h) "Assignment of Service Contracts and Equipment Leases
and Assumption Agreement" shall mean the Assignment of Service
Contracts and Equipment Leases and Assumption Agreement in the
form of Exhibit 1.01(h).
(i) "Banking Department" shall mean the Department of
Banking of the State of New Jersey.
(j) "Xxxx of Sale" shall mean the Xxxx of Sale in the form
of Exhibit 1.01(j).
(k) "Branch Lease" shall mean the Lease Agreement with
respect to the Cliffside Park Branch.
(l) "Branch Offices" shall mean the three (3) Branch
offices as described in the second recital.
(m) "Business Day" shall mean any day other than a
Saturday, Sunday or other day on which federal or state-chartered
savings banks or commercial banks located in the State of New
Jersey are authorized or required to close.
(n) "Cash" shall have the meaning set forth in Section
2.07.
(o) "Closing" means the closing of the purchase of the
assets and assumption of the liabilities and other transactions
hereunder, which shall take place in accordance with the
provisions of Article IV.
(p) "Closing Date" shall mean the close of business on the
date on which the Closing shall occur.
(q) "Deed" shall mean a bargain and sale deed, with
covenants against grantors acts, substantially in the form of
Exhibit 1.0(q).
(r) "Deposit Accounts" shall mean the accounts maintained
at the Branch Offices, evidencing the liability for the repayment
of customers' Deposits.
(s) "Deposit Assignment and Assumption Agreement" shall
mean the Deposit Assignment and Assumption Agreement in the form
of Exhibit 1.01(s).
(t) "Deposit Payment Amount" shall have the meaning set
forth in Section 2.02.
(u) "Deposits" shall mean the liabilities for the payment
of principal of, and accrued but previously unpaid, interest on,
all deposit accounts, including, but not limited to, savings
accounts, checking accounts, NOW Accounts, Super NOW Accounts,
Jumbo Accounts, Individual Retirement Accounts ("XXX Accounts" or
"IRAs") and Simplified Employee Pension Plan Accounts ("SEPs")
that are on deposit at the Branch Offices as shown on the books
of Seller as of the close of business on the Closing Date
including uncollected deposits that are subsequently collected;
provided, however, that for purposes of this Agreement, Deposits
shall not include any Excluded Deposits.
(v) "Designated Employees" shall have the meaning set forth
in Section 11.02.
(w) "Effective Date" shall mean the date on which this
Agreement is executed by both parties.
(x) "Estimated Amount" shall have the meaning set forth in
Section 2.11(a).
(y) "Excluded Assets" shall mean those assets of Seller that
are not expressly included in the assets and properties to be
transferred to Purchaser pursuant to this Agreement and shall
include, but are not limited to, all loan assets other than
Account Loans, the Excluded Deposits and the Seller's signs and
logos located at or on the Branch Offices and on any of Seller's
Automate Teller Machines ("ATMs") included in this sale.
(z) "Excluded Deposits" shall mean the liabilities for the
payment of principal of, and accrued, but previously unpaid,
interest on, the deposit accounts identified on Schedule 1.01(z).
(aa) "Final Settlement Date" shall have the meaning set
forth in Section 12.02.
(bb) "Initial Payment" shall have the meaning set forth in
Section 2.11(b).
(cc) "NOW Accounts" shall mean those accounts from which
withdrawals can be made by the use of negotiable orders of
withdrawal, which term shall also include interest bearing
negotiable order of withdrawal accounts.
(dd) "Other Assets" shall mean (i) the leasehold
improvements, furniture, fixtures, equipment and other assets
(other than cash and other liquid assets) that are owned by
Seller and located in or about the Branch Offices, as more
particularly described in Schedule 1.01(dd), (ii) all files
records, documents and instruments to the extent that they are
reasonably related to this Agreement and to the transactions
contemplated herein, including, but not limited to, the deposit
records referenced in Sections 2.01(b) and 2.05(c), and (iii) the
Service and Equipment Contracts; provided that Other Assets shall
not include the Excluded Assets.
(ee) "OTS" shall mean the Office of Thrift Supervision.
(ff) "Overdraft Loans" shall mean all overdraft balances on
Deposit Accounts whether or not incurred pursuant to a written
overdraft agreement.
(gg) "Owned Branches" shall mean the Rahway Branch and Fords
Branch
(hh) "Premium" shall have the meaning set forth in Section
2. 02.
(ii) "Purchase Price" shall have the meaning set forth in
Section 2.04.
(jj) "Real Estate" shall mean the land and improvements at
the Owned Branch locations, together with any appurtenant
easements and rights, as described on Schedule 1.01(jj).
(kk) "Service and Equipment Contracts" shall mean all
contracts, equipment and personal property leases listed on
Schedule 1.01(kk) that Purchaser will assume from Seller pursuant
to this Agreement.
(ll) "Settlement Date" shall have the meaning set forth in
Section 12.01.
(mm) "Transferred Assets" shall have the meaning set forth
in Section 2.03.
ARTICLE II
Terms of Purchase
Section 2.01. Assignment and Assumption of Liabilities.
(a) At the Closing, upon the terms and subject to the
conditions set forth in this Agreement and the Deposit Assumption
Agreement, Seller shall assign to Purchaser and Purchaser shall
assume the liabilities of Seller for the Deposits immediately
prior to the close of business on the Closing Date.
(b) In connection with the assumption by Purchaser of the
liabilities of Seller with respect to the Deposits, Seller shall
transfer and deliver to Purchaser as of the Closing Date copies
of pertinent records, documents and information on the premises
of the Branch Offices relating to the Deposits including such
materials as shall be necessary to enable Purchaser to comply
with any applicable tax withholding requirements relating to the
Deposits under the Internal Revenue Code of 1986, as amended, or
other applicable laws. Seller shall be responsible for
compliance with such applicable tax withholding requirements
relating to the Deposits prior to the Closing. From and after
the Closing Date, Purchaser shall assume the obligation under all
such applicable tax withholding requirements and the terms of the
Deposit Accounts or other agreements with the depositors
thereunder that are applicable thereto.
(c) After all regulatory approvals are obtained, but prior
to the Closing Date, Seller shall prepare a letter, on Seller's
stationery, in form and substance reasonably satisfactory to
Purchaser, informing all account holders and depositors of the
pending transfer of the Branch Offices and the Deposit Accounts
and Account Loans to Purchaser.
(d) At such time as may be required by applicable laws and
regulations, but not later than three (3) Business Days following
the Closing Date, Purchaser shall mail to each account holder of
a checking account or NOW Account: (i) a letter prepared by
Purchaser, in form satisfactory to Seller, notifying such
depositor of the transfer of his or her checking account or NOW
Account to Purchaser and requesting that such account holder
cease writing checks or drafts against Seller's account
immediately following receipt of such letter and (ii) signature
cards, check order forms and replacement checks bearing
Purchaser's transit and routing number and any other documents to
be signed by the account holder to establish a similar account
with Purchaser.
Section 2.02. Assumption of and Payment for Deposits. In
consideration for such assumption by Purchaser of liability for
the Deposits, Seller shall pay to Purchaser at the Closing, an
amount (the "Deposit Payment Amount") equal to one hundred (100%)
percent of the Deposits less the amount of the Premium. The
Premium shall be six (6%) percent of the Deposits at the
Cliffside Park Branch, five (5%) percent of the deposits at the
Rahway Branch and four (4%) percent of the deposits at the Fords
Branch. Provided, that no Premium shall be paid on accrued
interest on Deposits as to which interest is remitted to the
depositors by check at the conclusion of the applicable interest
period.
Section 2.03. Purchase and Sale of Assets. At the Closing
and subject to the terms and conditions herein set forth, Seller
shall sell, convey, assign, transfer and deliver to Purchaser,
and Purchaser shall purchase, accept and assume the rights and
obligations of Seller in and to the following assets (the
"Transferred Assets"):
(a) All of Seller's right, title and interest in and to the
Other Assets;
(b) Subject to the receipt of the consent of the respective
landlord thereunder to the assignment thereof, all of Seller's
right, title and interest in and to the estate of tenant under
the Branch Lease; and
(c) All of Seller's right, title and interest in fee to the
Real Estate.
Section 2.04. Purchase Price for the Transferred Assets;
Allocation. At the Closing, Purchaser shall, in accordance with
Section 2.11, pay to Seller in consideration for the purchase of
the Transferred Assets the sum of Three Hundred Fifty Thousand
and 00/100 ($350,000.00) Dollars (the "Purchase Price"), which
shall be allocated among the Real Estate as follows: (i) Rahway
Branch: $215,000; and (ii) Fords Branch: $135,000.
Purchaser and Seller agree that the Premium calculated
pursuant to Section 2.02 and Purchase Price described in the
preceding paragraph generally constitute the intended allocation
of the consideration being paid by Purchaser to Seller under this
Agreement. Purchaser and Seller acknowledge that a precise
allocation cannot be determined as of the Effective Date,
however, the parties agree that a final allocation shall be
determined as soon as practicable after the Closing Date, which
shall reflect events occurring following the Effective Date and
prior to the Closing Date, including the level of Deposits as of
the Closing Date, proration of real estate taxes and other
closing adjustments. Purchaser and Seller agree that such final
allocation of the consideration shall be set forth in an IRS Form
8594, "Asset Acquisition Statement" to be filed with their
respective federal and state tax returns.
Section 2.05. Documents of Transfer; Books and Records
Concerning Assets;
(a) The transfer of all property, leasehold and contractual
interests to be transferred hereunder to Purchaser shall be
evidenced: (i) in the case of Account Loans, by an Account Loan
Assignment and Assumption Agreement substantially in the Form of
Exhibit 1.01(b); (ii) in the case of the personal property
comprising part of the Other Assets, by a Xxxx of Sale in
substantially the form of Exhibit 1.01(j); (iii) in the case of
the Branch Lease, by an Assignment of Branch Lease and Assumption
Agreement in substantially the form of Exhibit 1.01(g); (iv) in
the case of the Service and Equipment Contracts comprising part
of the Other Assets, by an Assignment of Service Contracts and
Equipment Leases and Assumption Agreement substantially in the
form of Exhibit 1.01(h); (v) in the case of the Deposits, by a
Deposit Assignment and Assumption Agreement substantially in the
Form of Exhibit 1.01(s); (vi) in the case of the Owned Branches,
by separate Deeds in the form of Exhibit 1.01(q); together with
such additional documents and instruments as shall, in the
opinion of counsel to Seller and Purchaser, be reasonably
necessary to consummate the transactions contemplated by this
Agreement.
(b) Seller will, to the extent and for so long as it is
legally required to do so, maintain records relating to the
Transferred Assets and Account Loans and will respond directly to
a subpoena for such records.
(c) Seller will use its best efforts to provide Purchaser
with such other records or copies thereof as are reasonably
required by Purchaser to facilitate the orderly conduct of the
business of the Branch Offices assumed by Purchaser, and, to the
extent that it is legally able to do so, will provide Purchaser,
or its representatives, immediately upon the execution of this
Agreement, a description of all computer file layouts of its
Deposit Accounts and such other information as may be reasonably
required by Purchaser's data processing servicer. On the Closing
Date, Seller will provide to Purchaser a computer record in the
form maintained by Seller identifying the Deposits by name,
address, account number and, to the extent available, social
security number.
Section 2.06. XXX and SEP Accounts.
(a) Included in the Deposits are deposits of customers of
the Branch Offices in XXX or SEP Accounts pursuant to which
Seller is currently acting as "trustee", depository or sponsor.
(b) Within such period prior to the Closing Date as is
required by applicable law or regulation, Seller shall, at its
sole cost and expense, notify the depositors who maintain such
XXX or SEP as to which Seller is trustee of Seller's resignation
as trustee and of Seller's appointment of Purchaser as successor
trustee and the discharge and release of Seller from all
liabilities as trustee, which notification shall be accompanied
by all appropriate forms necessary to effect such replacement and
release.
Section 2.07. Acquisition of Cash on Hand.
Purchaser shall acquire from Seller, and Seller shall
deliver to Purchaser all cash on hand ("Cash") at the Branch
Offices, as receipted for by Purchaser's representative at such
Branch Offices at the close of business on the Closing Date, and
Purchaser shall pay to Seller at the Closing an amount equal to
the amount of Cash at the Branch Offices. Settlement with
respect to the foregoing shall be made as provided in Section
2.11.
Section 2.08. Account Loans. At the Closing, and subject
to the terms and conditions contained herein, Seller shall by the
Account Loan Assignment and Assumption Agreement transfer legal
title to the Account Loans to Purchaser. Such transfer is to be
made without recourse, representation or warranty except as
specifically set forth in this Agreement. In connection
therewith, Seller shall provide to Purchaser at the Closing all
available records and documents in Seller's possession relating
to the Account Loans. Seller shall promptly remit to Purchaser
(properly endorsed without recourse) any payments on account of
the Account Loans received by Seller after the Closing Date.
Settlement with respect to the foregoing shall be made as
provided in Section 2.11.
Section 2.09 Notice of Sale of Account Loans. Within three
(3) Business Days after the Closing Date, Purchaser shall mail a
letter prepared by Purchaser, in form reasonably satisfactory to
Seller, to each customer whose Account Loan was acquired by
Purchaser, notifying such customer that his or her Account Loan
was transferred to Purchaser and requesting that such customer
remit all payments on such Account Loan to Purchaser. Promptly
after the Closing Date, Purchaser shall mail new payment books to
such customers. The parties shall work together prior to Closing
to ensure that the foregoing mailings are made on a timely basis.
Section 2.10. Removal of Other Property. As soon as is
reasonably practicable after the Closing Date, but in no event
more than five (5) days thereafter, Seller will remove from the
Branch Offices all of its personal property not being transferred
to Purchaser, including, but not limited to, the Excluded Assets.
Purchaser hereby grants to Seller the right to enter the Branch
offices from time to time between the hours of 3 P.M. and 8 P.M.
during such five (5) day period to remove such property.
Section 2.11. Settlement. In consideration of the
assumption by Purchaser of the Deposits and the sale by Seller to
Purchaser of the Account Loans, the Transferred Assets and the
Cash, Seller and Purchaser shall make payments to each other at
the Closing and thereafter as follows:
(a) On or before the Closing Date, Purchaser and Seller
shall agree on an amount (herein called the "Estimated Amount"),
which shall be computed as the estimated Deposit Payment Amount
minus: (i) the estimated outstanding principal amount plus
accrued but unpaid interest on the Account Loans to be acquired
by Purchaser pursuant to Section 2.08; and minus (ii) an amount
equal to the estimated Cash on hand at the Branch Offices as of
the close of business on the Closing Date. All computations
shall be based upon balances as of a date which is not more than
seven (7) days prior to the Closing Date.
(b) At the Closing, Seller shall make a payment to
Purchaser in an amount equal to the Estimated Amount less the
Purchase Price to be paid by Purchaser to Seller pursuant to
Section 2.04 (the "Initial Payment"). Such Initial Payment shall
be made by wire transfer of immediately available funds to an
account specified in writing by Purchaser.
(c) Attached as Exhibit 2.11 is the form of closing
statement to be used to compute the Initial Payment.
Section 2.12. Disclaimer of Warranties. Except as may be
expressly provided for in this Agreement by Seller, Seller makes
no representations or warranties, expressed or implied,
whatsoever with regard to any asset being transferred to
Purchaser or any liability or obligation being assumed by
Purchaser, as such items are being transferred in an "AS IS"
condition with all faults. Without limiting the foregoing,
SELLER HEREBY DISCLAIMS ALL WARRANTIES, INCLUDING THE WARRANTIES
OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Section 2.13. Trademarks, etc. Nothing herein shall be
construed to confer upon Purchaser any right to use Seller's
name, trademarks or logo. Purchaser shall at its expense remove
Seller's name and logo from all Branch Offices as soon as
reasonably practicable after the Closing Date. From and after
and after the Closing Date, Purchaser shall, at its expense, as
soon as reasonably practicable change the name on all documents
and supplies to Purchaser's name.
ARTICLE III
Assignment of Leases; Personal Property; Real Estate;
Proration of Taxes, Assessments and Other Items
Section 3.01 Lease.
(a) Purchaser acknowledges that it has received a true copy
of the Branch Lease and that it is familiar with the terms and
conditions thereof. Seller shall use reasonable efforts to
obtain the landlord's consent to the assignment of such Lease to
Purchaser and the waiver of Landlord's rights pursuant to Section
22(c) of such Lease. Such assignment shall be made by written
instrument executed by Seller and Purchaser in substantially the
form of the Assignment of the Branch Lease and Assumption
Agreement. In the event the landlord to the Branch Lease refuses
for any reason to grant the consent and waiver referred to above,
Seller shall have the right to seek a declaratory judgment from a
court of competent jurisdiction ordering such assignment and
waiver. In the event the landlord refuses to grant the consent
and waiver referred to above and Seller does not obtain a
declaratory judgment as contemplated above, the provisions of
Section 3.04 shall govern.
Section 3.02. Personal Property. At the Closing, and
subject to the terms and conditions stated herein, Seller shall
transfer and assign to Purchaser all of Seller's right, title and
interest in and to the improvements, furniture, fixtures,
equipment and Other Assets described in Exhibit 1.01(dd), free
and clear of any mortgage, pledge, security interest, lien,
charge or encumbrance. Seller shall at the Closing execute and
deliver a xxxx of sale effecting such transfer, in the form of
the Xxxx of Sale. On the Closing Date, all personal property at
the Branch Offices shall be transferred by Seller to Purchaser in
the same condition as it is in as of the Effective Date,
reasonable wear and tear excepted.
Section 3.03. Proration of Taxes. Assessments and Other
Items. All payments of rent, taxes, insurance, utilities and
other amounts required to be paid by the lessee under the Branch
Lease, all taxes and assessments on the Real Estate, all amounts
advanced by Seller under the Service and Equipment Contracts
listed on Schedule 1.01(kk), and the FDIC insurance premium
prepaid by Seller for the next following assessment period shall
be prorated between Purchaser and Seller as of the Closing Date.
Real property taxes, water meter and sewer charges, and recurring
assessments shall be based on actual 1995 taxes and assessments,
if known, and, if not known, based on 1994 tax assessments.
There shall be no post closing re-prorations as to real property
taxes. At the Closing a settlement of all such prorated items
shall be made by form of payment reasonably acceptable to the
party entitled to receive such payment, which settlement shall
include the return to Seller of any security deposits theretofore
made pursuant to the Branch Lease. Purchaser shall arrange for
transfer of utility accounts to itself as of the Closing Date and
shall post all required deposits, if any. Seller shall be
responsible to obtain a refund of all utility account deposits
and shall be entitled to retain all such refunds. In the event
any item of income or expense to be prorated is not ascertainable
on the Closing Date or in the event any error is made as to the
proration calculation, either party shall have the right to
demand appropriate adjustment and payment. However, in no event
shall such a demand be made later than ninety (90) days after the
Closing Date. Seller shall pay the real estate transfer taxes
with respect to the conveyance of the Real Property.
Section 3.04. Removal of Branch Lease or Real Estate. In
the event that (i) the landlord of the Cliffside Park Branch
refuses to grant the consent and waiver contemplated by Section
3.01 and Seller does not obtain a declaratory judgment as
contemplated by Section 3.01, (ii) a Material Casualty shall
occur at any Branch Office and Purchaser shall make an election
pursuant to clause (i) of the third sentence of Section 5.02, or
(iii) there shall be unacceptable exceptions in a Title
Commitment which shall not be removed, or Purchaser shall be
unable to obtain a title commitment, and Purchaser shall make an
election pursuant to clause (i) of the third sentence of the
second paragraph of Section 5.07, then Purchaser shall
nevertheless purchase the Deposits and Account Loans of the
affected Branch Office, (x) Purchaser shall not purchase the Real
Estate on which the affected Branch Office is located or shall
not assume the Branch Lease, as the case may be, (y) if the
affected Branch Office is the Rahway Branch, the Purchase Price
shall be reduced by $215,000 and (z) if the affected Branch
Office is the Ford Branch, the Purchase Price shall be reduced by
$135,000.
Section 3.05. Data Processing Conversion. Purchaser has
made arrangements to convert data processing for the Deposits and
the Account Loans to Purchaser's data processing system on March
1, 1996 (the "Conversion Date"). In the event that the Closing
Date precedes the Conversion Date, the Seller shall continue to
perform data processing services for the Deposits and the Account
Loans until the Conversion Date. The Purchaser shall reimburse
the Seller for its actual costs of providing said services.
ARTICLE IV
The Closing
Section 4.01. Closing Date. The Closing hereunder shall
occur on the Closing Date, which shall be a Business Day within
thirty (30) days after the date on which all of the conditions
set forth in this Agreement have been satisfied or waived, such
date and the time for closing to be mutually agreed to by the
parties. The place of Closing shall be at the offices of
Seller's attorneys, Williams, Caliri, Xxxxxx & Otley, 0000 Xxxxx
00, Xxxxx, Xxx Xxxxxx. The transactions contemplated by this
Agreement and the Closing shall be effective immediately prior to
the close of business on the Closing Date. It is the express
intention of the parties that the Closing Date will be on the
first Friday which is acceptable to both parties after the
receipt by the parties of all regulatory approvals (and the
expiration of all required waiting periods).
Section 4.02. Documents to be Delivered by or on Behalf of
Seller.
1. Deed - Rahway Branch.
2. Deed - Fords Branch.
3. Assignment of Branch Lease and Assumption Agreement -
Cliffside Park Branch
4. Assignment of Service Contracts and Equipment Leases
and Assumption Agreement.
5. Deposit Assignment and Assumption Agreement
6. Account Loan Assignment and Assumption Agreement.
7. Good Standing Certificate.
8. Xxxx of Sale for personal property.
9. Officer's Certificate concerning: (i) compliance with
conditions; (ii) accuracy of representations and warranties; and
(iii) absence of litigation.
10. Resolution of Seller's Board of Directors authorizing
the transactions contemplated hereby, certified by the Secretary
or an Assistant Secretary of Seller.
11. Affidavit by the Seller, in form and substance
reasonably satisfactory to the Purchaser, signed by the Seller
under penalties of perjury, which affidavit shall contain: (i)
the Seller' name; (ii) the Seller's U.S. Taxpayer Identification
Number; (iii) the Seller's business address; and (iv) a statement
that the Seller is not a foreign person" within the meaning of
Sections 1445 and 7701 of the Code; that is, that the Seller is
not a nonresident alien, foreign corporation, foreign
partnership, foreign trust or foreign estate as those terms are
defined under the Code and regulations promulgated thereunder.
12. Legal Opinion of Seller's Counsel.
13. Letter of Non-Applicability with respect to New Jersey
Industrial Site Recovery Act.
14. Other Documentation. Such other documents, instruments
and certificates as Purchaser or its counsel may reasonably
request.
Section 4.03. Documents to be Delivered by or on behalf of
Purchaser.
1. Assignment of Branch Lease and Assumption Agreement -
Cliffside Park Branch.
2. Assignment of Service Contracts and Equipment Leases
and Assumption Agreement.
3. Deposit Assignment and Assumption Agreement
4. Account Loan Assignment and Assumption Agreement.
5. Good Standing Certificate.
6. Officer's Certificate concerning: (i) compliance with
conditions; (ii) accuracy of representations and warranties; and
(iii) absence of litigation.
7. Resolution of Purchaser's Board of Directors
authorizing the transactions contemplated hereby, certified by
the Secretary or an Assistant Secretary of Purchaser.
8. Legal Opinion of Purchaser's Counsel.
9. Other Documentation. Such other documents, instruments
and certificates as Seller or its counsel may reasonably request.
ARTICLE V
Covenants and Agreements of the Parties
Section 5.01. Conduct of Business Prior to Closing.
Between the date hereof and the Closing Date:
(a) Seller shall cause the Branch Offices to conduct their
operations according to their ordinary and usual course of
business and shall cause the Branch Offices to maintain their
records and books of account in a manner consistent with past
practices that fairly and accurately reflects their assets and
liabilities, including the Deposits and Account Loans, in
accordance with generally accepted accounting principles.
Furthermore, Seller shall not (i) engage in any transaction
related to the Branch Offices except in the ordinary course of
business, other than transactions necessary in connection with
the consummation of the transactions contemplated by this
Agreement, or (ii) change any of its deposit account or marketing
practices at the Branch Offices except as may be required, in
Seller's reasonable judgment, to comply with applicable law or
regulation or (iii) offer interest on Deposits at one or more
Branch Offices at rates in excess of those offered on the same
products as Seller's other branch offices; provided, however,
that Seller may take any of such actions if it first requests in
writing the consent of Purchaser thereto and Purchaser thereafter
consents to such action in writing, which consent shall not be
unreasonably withheld or delayed; and provided, further, that,
without Purchaser's consent, Seller may take any of such actions
if Seller reasonably deems any such action to be necessary due to
competitive forces in the market place.
(b) Seller shall diligently endeavor to retain all Deposit
Accounts to be transferred to Purchaser hereunder and to maintain
all other customer, employee and business relations at the Branch
Offices, except that nothing herein shall restrict any action
taken or to be taken by Seller or in the ordinary course of
business with respect to the employees of the Branch Offices;
(c) Seller shall remove any Excluded Deposits from the
Branch Offices and transfer same to other branches or facilities
of Seller.
Section 5.02. Casualty Loss to Branch Offices.
Seller shall maintain insurance with respect to the Branch
Offices and the Other Assets against losses, liabilities and
risks of such types and in amounts at least equal to their
respective book values. If between the Effective Date and the
Closing Date, there shall occur any Material Casualty to any of
the Branch Offices, Seller, in its sole discretion shall have the
right to request and receive a reasonable period of time (not to
exceed 60 days) to evaluate the damage and make necessary repairs
to the reasonable satisfaction of Purchaser. In the event Seller
elects not to make necessary repairs, Purchaser may within five
(5) Business Days following written notice of such election,
elect to either (i) exclude the Real Estate on which the affected
Branch Office is located, or the Branch Lease if the Cliffside
Park Branch is affected, from the transaction contemplated by
this Agreement, in which case the provisions of Section 3.04
shall govern or (ii) accept the affected Branch Office in its "AS
IS" condition in accordance with the terms of this Agreement with
no-abatement of Purchase Price in which event Seller shall assign
to Purchaser at Closing, all of Seller's right, title and
interest in and to any insurance claim or claims applicable to
such casualty. In the event Purchaser does not timely make such
election, or in the event a casualty is not a material casualty,
Purchaser shall be deemed to have conclusively elected the
alternative provided for in clause (ii) of the preceding
sentence. The foregoing constitutes an express agreement between
the parties as to the consequences of any material fire or
casualty at a Branch Office prior to the Closing Date. "Material
Casualty" of any Branch Office means such damages or destruction
each in excess of $50,000 as to cost of repair which would result
in the inability of Purchaser to occupy the Branch Office for
normal banking operations.
Section 5.03. Condition of Premises. Seller shall keep, or
cause to be kept, the Branch Offices in their current condition
maintenance and repair, ordinary wear and tear excepted.
Section 5.04. Access to Branch Offices. To the extent that
it is legally permitted to do so, Seller shall afford to agents
and representatives of Purchaser full access, during normal
business hours on reasonable advance notice, to all assets,
properties, books, records and agreements of Seller relating to
the Branch Offices, and Seller shall furnish such agents and
representatives with all information concerning the affairs of
the Branch Offices as may be reasonably requested by Purchaser;
provided that Purchaser, its employees, agents and
representatives, shall hold in confidence all documents and
information concerning Seller and its customers furnished to
Purchaser and will not disclose such documents or information
except as required by law and, unless and until the transactions
contemplated hereby are consummated, will not use such
information for any purpose other than to prepare for the
transactions contemplated hereby; and, provided further, if for
any reason the transactions contemplated by this Agreement shall
not be consummated, all such documents and all copies thereof
shall be promptly returned to Seller. Nothing in this Section
5.04 shall be deemed to require Seller to breach any obligation
of confidentiality or to reveal Seller's proprietary information,
trade secrets or marketing or strategic plans.
Section 5.05. Cooperation in Obtaining Regulatory
Approvals. The parties hereto will use best efforts to obtain,
and to assist and cooperate with each other in obtaining, as
expeditiously as possible any regulatory approvals, acquiescence
or consents required to be obtained as a condition to the lawful
consummation of the transactions contemplated by this Agreement,
and will proceed diligently and in good faith to prepare and
file, within five (5) Business Days after the Effective Date, all
necessary applications for such regulatory approvals,
acquiescence and consents. Each party hereto shall bear its own
expenses with respect to its applications.
Section 5.06. Consents. Seller shall use reasonable
efforts to obtain and deliver to Purchaser all consents (i)
required in order to effect the assignment of the Service and
Equipment Contracts to be assumed by Purchaser pursuant to this
Agreement and (ii) from the landlord with respect to the
assignment, pursuant to this Agreement, of the Branch Lease.
Section 5.07 Title. Title to the Real Estate shall be
good, marketable and insurable at regular rates by a title
insurance company licensed to do business in the State of New
Jersey (hereinafter referred to as the "Title Company"), free and
clear of all liens, encumbrances and tenancies at the time of
closing, except for the following:
A. Easements and restrictions of record, provided they do
not render title unmarketable and do not interfere with the use
and enjoyment of the Real Estate for a retail banking branch (the
"Intended Purpose").
B. The state of facts shown on an accurate survey,
provided such facts do not render the title unmarketable or
interfere with the use and enjoyment of the Real Estate for its
Intended Purpose.
C. Zoning and building regulations, ordinances and
requirements as adopted by any authority having jurisdiction
which relates to the Real Estate.
D. Standard exceptions appearing in an ALTA owner's
policy.
Purchaser agrees immediately upon execution of this
Agreement, to order separate examinations and commitments to
insure title to the Real Estate at the Rahway Branch and the Real
Estate at the Fords Branch from the Title Company (the "Title
Commitments") and shall on or before forty-five (45) days from
the date hereof, furnish copies of the Title Commitments to
Seller's attorneys, together with separate written notice
advising Seller as to those title exceptions set forth in the
Title Commitments which Purchaser requires to be removed
consistent with this Section in order for title to the Real
Estate to be acceptable to Purchaser. Thereupon, Seller may
elect, but shall not be obligated except as hereinafter set
forth, to take such steps or procedures as may be necessary to
remove the exceptions in the Title Commitments listed by
Purchaser as unacceptable. In the event that Seller elects not
to take such steps or procedures or fails or is unable, within
thirty (30) days from receipt of the Purchaser's notice to remove
such unacceptable exceptions, or if Purchaser is unable after a
good faith effort to produce either Title Commitment within
forth-five (45) days, then Purchaser shall have the option
either: (i) to exclude the Real Estate at the Rahway Branch or
the Real Estate at the Fords Branch, as the case may be, by
notice to said effect and thereupon the Real Estate at the
affected Branch Office shall be excluded from the transaction
contemplated by this Agreement, in which case the provisions of
Section 3.04 shall govern; or (ii) to accept such title to the
Real Estate as Seller is able to convey as of the latter of the
date of this Agreement or the date of the Title Commitment,
without any diminution in purchase price.
In the event that (a) either or both Title Commitments are
timely delivered to Seller and contain no such unacceptable
exceptions; (b) either or both Title Commitments are timely
delivered to Seller together with the separate notice setting
forth Purchaser's objections to title and Seller removes said
unacceptable exceptions within the said thirty (30) day period
provided for hereunder; or (c) Purchaser fails to deliver either
or both Title Commitments together with separate written notice
to terminate on or before forty-five (45) days from the date
hereof, then, as to the Real Estate to which such Title
Commitment or Title Commitments pertains, the requirements of
this Section 5.07 shall be deemed to have been fully satisfied
and any right of Purchaser to raise any objection to the title of
Seller as it exists on the latter of the date of this Agreement
or the date of such Title Commitment (if it has been issued and
delivered to Seller) shall be conclusively deemed to have been
waived.
In the event that a Title Commitment reveals money encum-
brances against the Real Estate or any encumbrance which can be
cured by a sum certain, such encumbrances shall be satisfied by
the Seller prior to the Closing, or in lieu thereof, at Seller's
option, Purchaser may apply such portion of the purchase
consideration to become due and payable at the Closing against
such liens as is necessary to satisfy them, and shall be entitled
to deduct the thereof paid from the balance due and owing to
Seller at the Closing, or (ii) provided security satisfactory to
the Title Company in order for it to remove exception in the
Title Commitment to such encumbrances. Provided, that Seller
shall not be required to remove money encumbrances exceeding
$215,000 with respect to the Real Estate at the Rahway Branch or
$135,000 with respect to the Real Estate at the Fords Branch.
ARTICLE VI
Representations and Warranties of Seller; Seller's Indemnities
Section 6.01. Representations and Warranties. In order to
induce Purchaser to enter into this Agreement, Seller hereby
represents, warrants and agrees as follows:
(a) Seller is a stock federal savings bank duly organized,
validly existing and in good standing under the laws of the
United States of America. Seller is authorized to transact a
thrift institution business and has all requisite corporate power
and corporate authority and all bank regulatory authorization and
approvals to conduct the banking business of the Branch Offices
as presently conducted, other than such authorizations, approvals
and orders the lack of which would not have a material adverse
effect on the banking business of the Branch Offices. Seller has
all necessary corporate power and authority to enter into this
Agreement and to carry out the provisions and conditions hereof,
except that it does not have, as of the Effective Date, all
regulatory approvals necessary to carry out the transactions
contemplated by this Agreement.
(b) This Agreement has been, and on the Closing Date all
other documents to be delivered by Seller pursuant to this
Agreement shall be, duly authorized, executed and delivered by
Seller, and this Agreement constitutes a valid and binding
obligation of Seller, enforceable as against Seller in accordance
with its terms.
(c) Seller has conducted and is conducting the banking
business of the Branch Offices in material compliance with all
applicable Federal and State banking laws and regulations
including, without limitation, all regulations and orders of the
OTS and the FDIC and all Federal and State tax laws and
regulations.
(d) Except for matters disclosed on Schedule 6.01(d), there
are no actions, proceedings or investigations pending or, to the
best knowledge of Seller, threatened against or affecting Seller
or any of its subsidiaries before any court or arbitrator or any
governmental body, agency or official (i) which, if decided
adversely to Seller, would materially adversely affect the
banking business of the Branch Offices, would have or may have a
material adverse impact on Seller's obtaining the regulatory
approvals and consents Seller is required to obtain as a
condition to the lawful consummation of the transactions
contemplated by this Agreement or that would materially adversely
affect the ability of Seller to perform its obligations under
this Agreement or which in any manner question the validity of
this Agreement or (ii) which relate to any of the Deposit
Accounts.
(e) Seller is not aware of any non-compliance with any
applicable Federal or State laws, regulations or orders, or of
any actions, proceedings, or investigations pending, or to the
best knowledge of Seller, threatened against or affecting Seller
or any of its subsidiaries which would serve as a basis for
disapproval of the transactions contemplated by this Agreement by
the OTS or any other regulatory authority.
(f) No consent, waiver, approval or other authorization of,
or registration, declaration or filing with, any court, govern-
mental agency, commission or any other entity is required for the
valid execution and delivery by Seller of this Agreement, or for
the validity or enforceability of this Agreement against Seller
or for the payment of any amounts by Seller hereunder, other than
the regulatory approvals and consents contemplated by this
Agreement. Without limiting the generality of the foregoing, the
consent of Republic National Bank of New York to the transaction
contemplated by this Agreement is either not required or has been
obtained.
(g) The execution and delivery of this Agreement and,
subject to obtaining the regulatory approvals contemplated by
this Agreement, the consummation of the transactions herein
contemplated will not result in a breach or violation of (i) a
law or governmental rule or regulation applicable to Seller no in
effect; (ii) any provision of the charter or by-laws of Seller;
or (iii) any judgment, order or decree applicable to Seller of
any court administrative agency or other governmental authority,
or of any agreement or instrument to which Seller is a party or
by which it is bound, or result in acceleration of any obligation
of Seller.
(h) No material default exists in the due performance
and observance by Seller of any material term, covenant or
condition of any material agreement to which Seller is a party,
and no other party to any such agreement has instituted or
threatened any action or proceeding wherein Seller would or might
be alleged to be in default thereunder, where such default would
have or may have a material adverse impact on Seller's obtaining
the regulatory approvals and consents Seller is required to
obtain as a condition to the lawful consummation of the
transactions contemplated by this Agreement or that would
materially adverse affect the ability of Seller to perform its
obligations under this Agreement.
(i) Except as specifically provided for herein, Seller is
not subject to any charter, by-law, indenture, mortgage, lien,
lease, agreement, instrument, order, judgment, decree or other
restriction that would prevent consummation of the transactions
contemplated hereby.
(j) Seller is the owner of the estate of tenant under the
Branch Lease, which constitutes a valid and binding lease between
the Seller and the lessor, enforceable by Seller in accordance
with its terms. Seller has not received notice of and is not
aware of any material breach by it of the Branch Lease which ha
not been cubed. Seller further warrants that it has legal and
equitable title or a valid lease with respect to the Other Assets
and the Account Loans, and that the interest of Seller in and to
the Other Assets and the Account Loans will be transferred to
Purchaser free of any mortgage, encumbrance, lien, security
instrument or similar restriction except as described in Schedule
1.01(dd). To the best of Seller's knowledge, there are no
contracts, equipment and personal property leases that exist with
respect to the Branch Offices and the Other Assets that may be
assumed by the Purchaser other than the Service and Equipment
Contracts listed on Schedule 1.01(kk).
(k) Seller has not retained or otherwise engaged any
broker, finder or any other person, or agreed to pay any fee or
commission to any agent, broker or other person for or on account
of this Agreement or the transactions contemplated hereby, for
which Purchaser shall be or become liable or which shall become a
lien or encumbrance on any of the assets to be assigned or
transferred hereunder.
(l) Seller has received no written or official notice of
any condemnation proceedings against the whole or any part of the
Transferred Assets and has no reason to believe that any agency
is contemplating condemnation proceedings against the whole or
any part thereof.
(m) Seller shall, within five (5) Business Days after the
Effective Date, commence, use best efforts and diligently
endeavor to: (i) file a complete application with the OTS
respecting this transaction and requesting approval thereof on a
prompt basis and to diligently pursue approval of such
application; (ii) obtain, and to cooperate with Purchaser in
obtaining all other approvals, consents and permissions necessary
to the consummation of the transactions contemplated by this
Agreement; and (iii) cause the satisfaction of all other
conditions to its obligations hereunder as promptly as
practicable. A copy of such OTS application will be promptly
furnished to Purchaser.
(n) All information regarding the Deposits and the Account
Loans furnished with this Agreement or to be furnished by Seller
to Purchaser in connection with the transactions contemplated in
this Agreement, to the best of Seller's knowledge after due
inquiry, was or will be accurate and complete in all material
respects as of the dates specified therein.
(o) The Deposits have been, and will be, generated in the
ordinary course of business of the Branch Offices in compliance
with applicable law and regulations and will through the Closing
Date be insured by the FDIC to the extent permitted by applicable
law and regulations. The assignment of the Deposits by Seller to
Purchaser will not reduce the Seller's total deposit base below
the amount of its adjusted attributable deposit amount; for
purposes hereof, the Seller's adjusted attributable deposit
amount means the amount upon which Seller's Savings Association
Insurance Fund ("SAIF") assessment obligation is based. The
transaction contemplated hereby is not a "Conversion Transaction"
as defined in 12 U.S.C. 1815(d)(2)(B) requiring FDIC approval,
the insubstantial portion test does not apply to said transaction
and conversion fees are not required in connection with said
transaction.
(p) The Account Loans are and will be fully assignable by
Seller and generated in the ordinary course of the business of
the Branch Offices in compliance with applicable law and
regulations.
(q) Any statement or certificate furnished or to be
furnished by Seller to Purchaser pursuant to this Agreement or in
connection with the transactions contemplated by this Agreement,
to the best of Seller's knowledge, is or shall be true in all
material respects and does not or will not omit to state any
material fact necessary to make statements contained in this
Agreement or therein not misleading.
Section 6.02. Seller's Indemnities.
(a) For a period of eighteen months after the Closing Date
(except as otherwise provided in clause (vi) below, Seller agrees
to indemnify, hold harmless and defend Purchaser against and from
any and all losses, claims, damages, costs, expenses or
liabilities to which Purchaser becomes subject insofar as such
losses, claims, damages, costs, expenses and liabilities (or
actions in respect thereof and costs and expenses, including
reasonable legal fees and disbursements incurred in connection
with such actions) arise out of or are based upon the following:
(i) Breach of any representation, warranty or
covenant of Seller contained in or made pursuant
to this Agreement.
(ii) The activities and operations of the Branch
Offices for all periods up to and including the
Closing, including but not limited to obligations
to depositors on the Deposits and borrowers on
the Account Loans due to any miscalculation of
interest payable or due with respect to the
Deposits or Account Loans or liabilities
resulting from Seller's failure to exercise
reasonable care to maintain taxpayer
identification information in accordance with
applicable laws and regulations;
(iii) Damages to persons or property that occur prior
to or as of the Closing in or relating to the
operations of the Branch Offices other than those
caused by Purchaser;
(iv) Any wrongful default under or failure to perform,
on the part of Seller, prior to the Closing
relating to the Deposits and the Account Loans
including, but not limited to, Seller's
obligations as drawee or payor bank on drafts,
checks and negotiable orders of withdrawal
written on Seller's check forms, or relating to
fiduciary relationships that are purchased or
assumed by Purchaser;
(v) Any liability, claim or action (including the
cost of defense thereof) arising under any XXX,
SEP, or Money Purchase Plan of which Seller was a
trustee and which account is transferred to
Purchaser pursuant to this Agreement, but only
with respect to any liability, claim or action
arising out of or relating to any action taken or
omitted to be taken by Seller prior to the
Closing notwithstanding that the notice period
with respect to Seller's resignation as trustee
or other plan fiduciary may not have expired by
the Closing Date.
(vi) Seller shall indemnify Purchaser against any BIF
entrance fees, SAIF exit fees and SAIF premiums
and assessments (to the extent they exceed BIF
premiums and assessments) incurred with respect
to the Deposits by reason of a breach of Seller's
warranty in Section 6.01(o). Seller's obligation
to indemnify contained in this clause (vi) shall
be of no further force or effect upon the first
to occur of (x) such time as Seller shall obtain
a favorable ruling or advisory opinion from the
FDIC, specific to the facts of the transaction
contemplated by this Agreement, that the transac-
tion contemplated hereby is not a "Conversion
Transaction" as defined in 12 U.S.C.
1815(d)(2)(B) requiring FDIC approval, that the
insubstantial portion test does not apply to said
transaction and that conversion fees are not
required in connection with said transaction or
(y) the SAIF Insurance Fund is discontinued as an
independent insurance fund (Seller's obligation
to indemnify pursuant to this clause (vi) to
include any fees or assessments arising out of
such discontinuance). Any disputes arising
pursuant to this clause (vi) shall be referred
for resolution to an independent firm of
certified public accountants of national standing
reasonably acceptable to Purchaser and Seller,
and Purchaser and Seller agree to be bound by the
determination of said accounting firm with
respect to any such matter referred to it for
settlement. Purchaser and Seller agree to share
equally the fees and charges of such accounting
firm for services rendered by it in resolving the
disputed matters referred to it by the parties
hereto.
(b) The indemnities available hereunder are
conditioned upon Purchaser giving Seller written notice of any
claim within thirty (30) days after the discovery or assertion
thereof. Except as otherwise provided in clause (vi) of Section
6.01(a), Seller shall have no obligation to indemnify Purchaser
as to any matter unless Purchaser shall give Seller written
notice thereof within eighteen (18) months after the Closing
Date.
(c) In any matter covered by this Section 6.02,
Seller shall be entitled to participate at Seller's own expense
in the defense or, if it so elects, to assume the defense of and
to settle any such claim, in which event such defense shall be
conducted by counsel chosen by Seller; provided, that Seller
shall not settle any claim without Purchaser's consent if such
settlement involves injunctive or other equitable relief against
the Purchaser or its assets, employees or business. In such
event, Purchaser shall bear the expenses of any additional
counsel retained by Purchaser and shall make available to Seller
such books and records, and render such other assistance as
Seller shall reasonably request to ensure the proper and adequate
defense of such claim.
(d) No claim shall be made in accordance with this Section
6.02 until the gross amount of all potential such claims exceeds
$10,000 and Seller's liability shall be limited to such claims in
excess of $10,000; provided, that the limitation on Seller's
indemnification obligations contained in this Section 6.02(d)
shall not be applicable to Seller's indemnification obligation
pursuant to clause (vi) of Section 6.01(a).
ARTICLE VII
Representations and Warranties of Purchaser; Purchaser's
Indemnities
Section 7.01. Representations and Warranties In order to
induce Seller to enter into this Agreement, Purchaser hereby
represents, warrants and agrees as follows:
(a) Purchaser is a duly organized, validly existing bank in
good standing under the laws of the State of New Jersey.
Purchaser is authorized to transact a bank business and has all
requisite corporate power and corporate authority and has all
necessary authorizations, approvals and orders of and from all
governmental regulatory officials and bodies to own its
properties and conduct its business as presently conducted.
Purchaser has all requisite corporate power and authority to
enter into this Agreement and to carry out the provisions and
conditions hereof, except that it does not have, as of the
Effective Date, all regulatory approvals necessary to carry out
the transactions contemplated by this Agreement.
(b) This Agreement has been, and on the Closing Date all
other documents to be delivered by Purchaser pursuant to this
Agreement shall be, duly authorized, executed and delivered by
Purchaser, and this Agreement constitutes a valid and binding
obligation of Purchaser, enforceable as against Purchaser in
accordance with its terms.
(c) There are no actions, proceedings or investigations
pending or, to the best knowledge of Purchaser, threatened
against or affecting Purchaser or any of its subsidiaries before
any court or arbitrator or any governmental body, agency or
official which, if decided adversely to Purchaser would have or
may have a material adverse impact on Purchaser's obtaining the
regulatory approvals and consents Purchaser is required to obtain
as a condition to the lawful consummation of the transactions
contemplated by this Agreement or that would materially adversely
affect the ability of Purchaser to perform its obligations under
this Agreement or which in any manner question the validity of
this Agreement.
(d) Purchaser is not aware of any non-compliance with any
applicable Federal or State laws, regulations or orders, or of
any actions, proceedings or investigations pending, or to the
best knowledge of Purchaser, threatened against or affecting
Purchaser or any of its subsidiaries which would serve as a basis
for disapproval of the transactions contemplated by this
Agreement by the Banking Department, the FDIC or any other
regulatory authority.
(e) No consent, waiver, approval or other
authorization of, or registration, declaration or filing with,
any court, governmental agency, commission or any other entity is
required for the valid execution and delivery by Purchaser of
this Agreement, or for the validity or enforceability of this
Agreement against Purchaser or for the payment of any amounts by
Purchaser hereunder, other than the regulatory consents and
approvals contemplated by this Agreement.
(f) The execution and delivery of this Agreement and,
subject to obtaining the regulatory approvals contemplated by
this Agreement, the consummation of the transactions herein
contemplated will not result in a breach or violation of (i) any
law or governmental rule or regulation applicable to Purchaser
now in effect; (ii) any provision of the charter or by-laws of
Purchaser; or (iii) any judgment, order or decree applicable to
Purchaser of any court, arbitrator, administrative agency or
other governmental authority, or of any agreement or instrument
to which Purchaser is a party or by which it is bound, or result
in the acceleration of any obligation of Purchaser.
(g) No material default exists in the due performance
and observance by Purchaser of any material term, covenant or
condition of any material agreement to which Purchaser is a
party, and no other party to any such agreement has instituted or
threatened any action or proceeding wherein Purchaser would or
might be alleged to be in default thereunder, where such default
would have or may have a material adverse impact on Purchaser's
obtaining the regulatory approvals and consents Purchaser is
required to obtain as a condition to the lawful consummation of
the transactions contemplated by this Agreement or that would
materially adversely affect the ability of Purchaser to perform
its obligations under this Agreement.
(h) Purchaser is not subject to any charter, by-law,
indenture, mortgage, lien, lease, agreement, instrument, order,
judgment, decree or other restriction that would prevent
consummation of the transactions contemplated hereby.
(i) Purchaser has not retained or otherwise engaged
any broker, finder or any other person, or agreed to pay any fee
or commission to any agent, broker or other person for or on
account of this Agreement or the transactions contemplated
hereby, for which Seller shall be or become liable.
(j) Purchaser shall, within five (5) days after the
Effective Date, commence, use best efforts and diligently
endeavor to (i) fife complete applications with the Banking
Department and the FDIC with respect to this transaction and
requesting approval thereof on a prompt basis and to diligently
pursue approval of such applications; (ii) obtain, and to
cooperate with Seller in obtaining, all approvals, consents and
permissions necessary to the consummation of the transactions
contemplated by this Agreement; and (iii) cause the satisfaction
of all other conditions to its obligations hereunder as promptly
as practicable. Copies of all applications referred to herein
will promptly be provided to Seller.
(k) Purchaser will not prior to the Closing Date engage in
any solicitation that is directed to the Deposit Account holders
or Seller's other customers at the Branch Offices, except as
contemplated by this Agreement.
(l) Purchaser acknowledges that it has examined the Branch
Lease. Purchaser agrees that it is purchasing the Branch Offices
and the Other Assets in their "AS IS" condition on the Closing
Date, without any representation or warranty, express or implied,
by Seller with respect to the condition thereof, except as
expressly set forth in this Agreement.
Section 7.02 Purchaser's Indemnities.
(a) Purchaser agrees to indemnify, hold harmless and defend
Seller against and from any and all losses, claims, damages,
costs, expenses or liabilities to which Seller becomes subject
caused by the acts or omissions of persons entering the Branch
Offices on behalf of Purchaser pursuant to this Agreement prior
to the Closing.
(b) Purchaser agrees to indemnify, hold harmless and defend
Seller at all times from and after the Closing against and from
any and all losses, claims, damages, costs, expenses or
liabilities to which Seller becomes subject insofar as such
losses, claims, damages, costs, expenses and liabilities (or
actions in respect thereof and costs and expenses, including
reasonable legal fees and disbursements incurred in connection
with such actions) arise out of or are based upon the following:
(i) Breach of any representation, warranty or
covenant of Seller contained in or made pursuant
to this Agreement.
(ii) The activities and operations of the Branch
Offices for all periods after the Closing,
including but not limited to obligations to
depositors, on the Deposits and borrowers on the
Account Loans due to any miscalculation of
interest payable or due with respect to the
Deposits or Account Loans or liabilities
resulting from Purchaser's failure to exercise
reasonable care to maintain taxpayer
identification information in accordance with
applicable laws and regulations;
(iii) Damages to persons or property that occur after
the Closing in or relating to the operations of
the Branch Offices except damages caused by the
conduct of Seller in removing its property;
(iv) Any wrongful default under or failure to perform,
on the part of Purchaser, after the Closing
relating to the Deposits and the Account Loans
including, but not limited to, Purchaser's
obligations as drawee or payor bank on drafts,
checks, and negotiable orders of withdrawal
written on Purchaser's or Seller's check forms,
and fiduciary relationships that are purchased or
assumed by Purchaser;
(v) Any liability, claim or action (including the
cost of defense thereof) arising under an XXX,
SEP, Xxxxx Account or Money Purchase Plan Account
of which Seller was a trustee or other plan
fiduciary and which is transferred to Purchaser
pursuant to this Agreement (including Xxxxx
Accounts as to which the depositor fails to
appoint the Purchaser as successor trustee), but
only with respect to any liability, claim or
action arising out of or relating to any actions
taken or omitted to be taken by Purchaser after
the Closing. Purchaser's duty of indemnification
shall commence at Closing Date even if any notice
period with respect to Seller's resignation as
trustee has not as yet expired.
(vi) Breach of any obligation to be performed by the
tenant under the Branch Lease after the Closing
Date; and
(vii) Breach of any obligation to be performed under
any Service Contract or Equipment Lease after
Closing Date.
(b) The indemnities available hereunder are conditioned
upon Seller giving Purchaser written notice of any claim within
thirty (30) days upon the discovery or assertion thereof.
(c) In any matter covered by this Section 7.02, Purchaser
shall be entitled to participate at Purchaser's own expense in
the defense or, if it so elects, to assume the defense of and to
settle any such claim, in which event such defense shall be
conducted by counsel chosen by Purchaser; provided, that
Purchaser shall not settle any claim without Seller's consent if
such settlement involves injunctive or other equitable relief
against the Seller or its assets, employees or business. In such
event, Seller shall bear the expenses of any additional counsel
retained by Seller and shall make available to Purchaser such
books and records, and render such other assistance as Purchaser
shall reasonably request to ensure the proper and adequate
defense of such claim.
ARTICLE VIII
Conditions to Obligations of Seller
Section 8.01. The obligations of Seller hereunder are
subject to the satisfaction on or before the Closing Date of the
following conditions, unless waived by Seller:
(a) Compliance with Conditions. All the covenants and
conditions required by this Agreement, any agreements attached as
Exhibits, or any certificate or document delivered pursuant to
the provisions of this Agreement to be complied with and
performed by Purchaser on or before the Closing Date shall have
been duly complied with and performed in all material respects.
(b) Accuracy of Representations and Warranties. The repre-
sentations and warranties made by Purchaser in this Agreement,
any of the agreements attached to this Agreement as Exhibits, or
any certificate or document delivered pursuant to the provisions
of this Agreement or thereof or in connection with the
transactions contemplated by this Agreement or thereby, shall be
correct in all material respects, on and as of the Closing Date,
with the same force and effect as though such representations and
warranties had been made on the Closing Date.
(c) Absence of Litigation. No action or proceeding shall
have been instituted or, to the best knowledge of either party,
threatened, on or before the Closing Date pertaining to the
transactions contemplated hereby.
(d) Validity of Acquisition. The form and substance of all
instruments of assumption and other documents to be delivered to
Seller hereunder the forms of which are not annexed hereto, shall
have been approved by Seller and its counsel, such approval not
to be unreasonably withheld.
(e) Governmental Approvals. To the extent required by
applicable law and regulations, the OTS, the FDIC and any other
state or federal agency shall have approved the acquisition by
Purchaser and disposition by Seller of the Branch Offices and the
assumption by Purchaser and disposition by Seller of the
Deposits, and any applicable waiting periods shall have expired,
all as contemplated herein. Seller may deem this condition
unfulfilled in the event a regulatory agency imposes a condition
which in the reasonable good faith judgment of Seller would have
a material adverse impact on the economic benefits of the
transactions contemplated by this Agreement. To the extent it is
permitted by applicable laws and regulations to do so, Seller
shall disclose to Purchaser all communications between Seller and
any regulatory authority with respect to the imposition of such
condition, and the parties agree to cooperate and use best
efforts to meet and work with the regulatory agency to remove or
modify the condition in a manner satisfactory to the Seller. In
the event that the parties are unable to so remove or modify such
condition, Seller shall have the right to terminate this
Agreement.
(f) Officer's Certificate. Purchaser shall have delivered
to Seller a certificate of a responsible executive officer of
Purchaser, dated the Closing Date, certifying to the fulfillment
of the conditions set forth in paragraphs (a) (b) and (c) of this
Section 8.01.
(g) Opinion of Counsel to Purchaser. Seller shall have
received an opinion from counsel to Purchaser, dated the Closing
Date, to the effect that:
(1) Purchaser is a banking corporation duly
organized, validly existing and in good standing under the laws
of New Jersey and has all necessary authority (corporate and
other) to enter into this Agreement and consummate the
transactions contemplated hereby;
(2) This Agreement and the Closing documents to be
executed by Purchaser as provided herein, have been duly
authorized, executed and delivered by Purchaser and each
constitutes the valid and binding obligation of Purchaser and is
enforceable against Purchaser in accordance with its terms,
except as such enforceability may be limited by the availability
of equitable remedies and bankruptcy, insolvency, moratoria,
reorganization, fraudulent conveyance and other similar laws of
general application affecting rights of creditors of banks
(including the FDIC or the Resolution Trust Corporation as the
conservator or receiver thereof) and by the application of
general equity principles, and the execution, delivery and
performance of this Agreement by Purchaser will not violate any
provision of any agreement, indenture, instrument, lease,
contract or other undertaking of Purchaser of which such counsel
has actual knowledge.
(3) All consents, approvals and authorizations of the
Banking Department and the FDIC and any other governmental
authority, if any, required to be obtained by Purchaser in
connection with the consummation of the transactions contemplated
by this Agreement have been obtained, and any applicable waiting
periods have expired.
In rendering the foregoing opinion, such counsel may rely as
to factual matters on certificates of public officials and
responsible executive officers of Purchaser, provided that such
certificates are delivered concurrently with such counsel's
opinion.
ARTICLE IX
Conditions to Obligations of Purchaser
Section 9.01. The obligations of Purchaser hereunder are
subject to the satisfaction on or before the Closing Date of the
following conditions, unless waived by Purchaser:
(a) Compliance with Conditions. All the covenants and
conditions required by this Agreement, any agreements attached as
Exhibits, or any certificate or document delivered pursuant to
the provisions of this Agreement to be complied with and
performed by Seller on or before the Closing Date shall have been
duly complied with and performed in all material respects.
(b) Accuracy of Representations and Warranties. The
representations and warranties made by Seller in this Agreement,
any of the agreements attached to this Agreement as Exhibits or
any certificate or document delivered pursuant to the provisions
of this Agreement or thereof or in connection with the
transactions contemplated by this Agreement or thereby, shall be
correct in all material respects, on and as of the Closing Date,
with the same force and effect as though such representations and
warranties had been male on the Closing Date.
(c) Absence of Litigation. No action or proceeding shall
have been instituted or, to the best knowledge of either party,
threatened, on or before the Closing Date pertaining to the
transaction contemplated herein, the result of which would be
materially adverse to the operation by Purchaser of any of the
Branch Offices.
(d) Validity of Acquisition. The form and substance of all
instruments of transfer and other documents to be delivered to
Purchaser hereunder, the forms of which are not annexed hereto
shall have been approved by Purchaser and its counsel, such
approval not to be unreasonably withheld.
(e) Governmental Approvals. To the extent required by
applicable laws and regulations of the Banking Department, the
OTS, the FDIC and any other state or federal agency shall have
approved the acquisition by Purchaser and disposition by Seller
of the Branch Offices and the assumption by Purchaser and
disposition by Seller of the Deposits, and any applicable waiting
periods shall have expired, all as contemplated herein. Purchaser
may deem this condition unfulfilled in the event a regulatory
agency imposes a condition which in the reasonable good faith
judgment of Purchaser would have a material adverse impact on the
economic benefits of the transaction contemplated by this
Agreement. To the extent it is permitted by applicable laws and
regulations to do so, Purchaser shall disclose to Seller all
communications between Purchaser and any regulatory authority
with respect to the imposition of such conditions and the parties
agree to cooperate and use best et torts to meet and word with
the regulatory agency to remove or modify the condition in a
manner satisfactory to the Purchaser. In the event that the
parties are unable to so remove or modify such condition,
Purchaser shall have the right to terminate this Agreement.
(f) Officer's Certificate. Seller shall have delivered to
Purchaser a certificate of a responsible executive officer of
Seller, dated the Closing Date, certifying to the fulfillment to
the conditions set forth in paragraphs (a) (b) and (c) of this
Section 9.01.
(g) Opinion of Counsel to Seller. Purchaser shall have
received an opinion from counsel to Seller, dated the Closing
Date, to the effect that:
(1) Seller is a savings bank duly organized, validly
existing and in good standing under the laws of the United States
of America, is entitled to carry on its business in the Branch
Offices and has all necessary authority (corporate and other) to
enter into this Agreement and consummate the transactions
contemplated hereby.
(2) This Agreement and the Closing documents to be
executed by Seller as provided herein, have been duly authorized,
executed and delivered by Seller and each constitutes the valid
and binding obligation of Seller and is enforceable against
Seller in accordance with its terms, except as such
enforceability may be limited by the availability of equitable
remedies and bankruptcy, insolvency, moratoria, reorganization,
fraudulent conveyance and other similar laws of general
application affecting rights of creditors of federal savings
banks (including the FDIC or the Resolution Trust Corporation as
the conservator or receiver thereof) and by the application of
general equity principles, and the execution, delivery and
performance of this Agreement by Seller will not violate any
provision of any agreement, indenture, instrument, lease,
contract or other undertaking of Seller of which such counsel has
actual knowledge.
(3) All consents, approvals and authorizations of the
OTS and any other governmental authority, if any, required to be
obtained by Seller in connection with the consummation of the
transactions contemplated by this Agreement have been obtained,
and any applicable waiting periods have expired.
In rendering the foregoing opinion, such counsel may rely as
to factual matters on certificates of public officials and
responsible executive officers of Seller, provided that such
certificates are delivered concurrently with such counsel's
opinion.
ARTICLE X
Termination
Section 10.01 Termination. This Agreement shall terminate
and be of no further force or effect, except as to the liability
for breach of any material covenant, agreement, representation or
warranty occurring or arising prior to the date of termination,
upon the occurrence of any of the following:
(a) The expiration of thirty (30) days after the OTS, FDIC
or any other governmental agency has denied or finally refused to
grant the approvals or consents required to be obtained pursuant
to this Agreement, unless within said 30-day period Purchaser and
Seller agree to submit or resubmit an application to or appeal
the decision of the regulatory authority that denied or finally
refused to grant approval thereof; or
(b) The expiration of thirty (30) days from the date that
either party has properly given notice to the other party of the
notifying party's intention to terminate this Agreement either:
(1) pursuant to any provision of this Agreement giving such party
the right to terminate; or (2) as a consequence of such other
party's material breach or misrepresentation of any condition,
warranty, representation or covenant herein; provided, however,
that no such termination shall take effect if within said 30-day
period the party so notified shall have fully and completely
corrected the grounds for termination as specified in the
aforementioned notice;
(c) On or prior to May 31, 1996 due to the failure to
satisfy or waive one or more of the conditions to Closing
provided for herein; or
Notwithstanding anything to the contrary herein contained,
neither party hereto shall have the right to terminate this
Agreement on account of its own breach or any immaterial breach
by the other party hereto.
ARTICLE XI
Cooperation; Servicing of Deposits; Employees
Section 11.01. Cooperation. Seller and Purchaser shall
cooperate with each other and use their respective best efforts
to consummate the transactions contemplated herein, and each
shall take all reasonable actions necessary to accomplish such
transactions, including, but not limited to, the provisions of
any required notices to depositors in respect of the Deposits.
Seller shall supply Purchaser with such information and
records relating to the Deposits and related assets at such times
as Purchaser may reasonably request, including, but not limited
to, computer tapes setting forth current account information as
to all of the Deposits in machine-readable form. Following the
Closing Date, Seller and Purchaser shall each continue to provide
reasonable assistance to the other in effectuating an orderly
transfer to Purchaser of the Deposits and related assets to be
transferred hereunder and the consummation of all other transac-
tions contemplated hereunder, and, in pursuance thereof, shall at
any reasonable time and from time to time upon the request of the
other execute and deliver such further documents, certificates,
assignments, receipts, endorsements and instructions of transfer
as Purchaser or Seller (as the case may be) may reasonably
require to more fully consummate the transactions contemplated
hereby. Purchaser shall provide to the United States Internal
Revenue Service, to the extent required by law, Form 1099 and any
other required forms with respect to each depositor in respect of
the Deposits for the portion of the calendar year 1996 after the
Closing Date.
Section 11.02. Employees. Purchaser shall offer
employment to all employees of the Rahway Branch and Fords Branch
as of the Closing Date. Within fifteen (15) days after receipt
of the final regulatory approvals required for the transactions
contemplated by this Agreement, but not including any waiting
period following such approval, Purchaser shall designate and
notify Seller in writing of those employees of Seller at the
Cliffside Park Branch who Purchaser wishes to employ as employees
of Purchaser after the Closing Date (the Rahway and Fords
employees, together with the employees of the Cliffside Park
Branch who are designated by Purchaser are hereinafter
collectively referred to as the "Designated Employees").
Following the Closing Date, Purchaser shall offer employment to
all of the Designated Employees upon terms and conditions
(including benefits) that are no less favorable than those
generally afforded to Purchaser's other employees holding similar
positions. All Designated Employees who accept employment with
Purchaser shall be entitled to coverage under the benefit plans
generally available to the Purchaser's employees (including
pension and health/hospitalization) on the terms and conditions
available to Purchaser's newly hired employees. Employees of
Seller employed by Purchaser will not receive credit for prior
employment by Seller, except that credit for prior service will
be given for the sole purpose of determining whether such
employees are eligible to participate in Purchaser's medical,
vacation, sick leave, disability, 401(k), pension, and other
employee benefit plans. No prior existing condition limitation
shall be imposed with respect to any medical coverage plan of
Purchaser. Seller shall not be required by Purchaser to vest any
of Seller's employees who shall become employees of Purchaser on
or after the Closing Date in any accrued but unvested pension
benefits under Seller's Plan for Pensions, and Seller shall not
be required by Purchaser to make any payment to the Purchaser or
to such employees with respect thereto. Purchaser assumes no
liability for any employee-related liabilities of Seller with
respect to Seller's employees (and their dependents) who become
employees of Purchaser on or after the Closing Date that relate
to periods of employment or prior to the Closing Date, including
salaries, wages, pension, incentive pay, severance benefits,
vacation pay, medical benefits, disability benefits, life
insurance benefits and all other benefits provided to such
employees (and their dependents) by Seller under Seller's benefit
programs. Purchaser understands that Seller, in accordance with
Seller's standard policy, will not pay severance benefits to any
of Seller's employees hired by Purchaser as described in this
Section 11.02.
ARTICLE XII
Final Settlement; Transitional Processing of Items
Section 12.01. Final Settlement. On a Business Day within
thirty (30) days after the Closing Date (the "Settlement Date"),
Seller shall deliver a report in writing (subject to the review
and approval thereof by Purchaser) to Purchaser as to: (i) the
actual aggregate principal amount of and accrued interest on the
Deposits as of the Closing Date, together with any related
accounts receivable and/or payable (the "Actual Deposits"); (ii)
the actual principal amount of and accrued but unpaid interest as
of the Closing Date on the Account Loans acquired by Purchaser
pursuant to Section 2.08 (the "Actual Loans"); and (iii) the
actual Cash on hand at the Branch Offices as of the Closing (the
"Actual Cash"). In such report, Seller shall recalculate the
Estimated Amount based on the Actual Deposits, Actual Loan and
Actual Cash; the recalculated Estimated Amount is hereinafter
referred to as the "Actual Payment".
Section 12.02. Adjustment. The Business Day next following
the receipt of such written report is herein called the "Final
Settlement Date." On the Final Settlement Date, the following
adjustments shall be made:
(1) in the event that-the amount of the Actual
Payment is less than the Initial Payment, Purchaser shall refund
to Seller, by wire transfer of same day funds and to such account
as may be specified by Seller, an amount equal to the difference
obtained by subtracting the amount of the Actual Payment from the
Initial Payment; and
(2) in the event that the amount of the Actual
Payment is more than the Initial Payment, Seller shall pay to
Purchaser, by wire transfer of same day funds and to such account
as may be specified by Purchaser, an amount equal to the
difference obtained by subtracting the amount of the Initial
Payment from the Actual Payment.
Section 12.03. Dispute of Final Settlement. If Seller and
Purchaser fail to reach agreement as to the aggregate amount of
the Actual Loans or the amount of Actual Cash purchased by
Purchaser from Seller or the Actual Deposits assumed by Purchaser
pursuant to this Agreement, the adjustments on the Final
Settlement Date shall be based on the amounts supplied by Seller;
provided, however, that the matters in dispute shall be referred
for resolution to an independent firm of certified public
accountants of national standing reasonably acceptable to
Purchaser and Seller, and Purchaser and Seller agree to be bound
by the determination of said accounting firm with respect to any
such matter referred to it for settlement. Purchaser and Seller
agree to share equally the fees and charges of such accounting
firm for services rendered by it in resolving the disputed
matters referred to it by the parties hereto.
Section 12.04. Check Processing and Reimbursements. Seller
shall arrange for inclearings with respect to items drawn against
the Deposit Accounts to be redirected by the Federal Reserve Bank
of New York (on the basis of ABA Number) to Purchaser as of the
Closing Date. Purchaser agrees to execute any necessary
documents and otherwise cooperate in arranging the redirection of
the inclearing of items. If, notwithstanding such redirection,
any items drawn against the Deposit Accounts are presented to
Seller for payment during the 60 day period following the Closing
Date, Seller shall process and pay such items and Purchaser shall
reimburse Seller for the amount of funds paid on such items, by
wire transfer in immediately available funds, as herein provided.
During said 60 calendar day period, Seller shall place all such
items received for collection on Deposit Accounts into the
possession of a courier (Federal Express, Purolator, etc.) for
delivery to Purchaser by the morning of the following Business
Day. Prior to 3:00 P.M. on the day of such receipt, Purchaser
shall make payment to Seller in the aggregate amount of such
items. Purchaser shall be responsible for determining if each
such item delivered is properly payable. If any such item is not
properly payable, Purchaser shall dishonor such item and return
it to the Federal Reserve Bank for credit to Purchaser's account.
Notwithstanding the foregoing, Seller shall segregate and notify
Purchaser by telephone on the day the item is presented, of any
item in an amount equal to or exceeding $2,500. Purchaser shall
inform Seller whether any such item is properly payable, and, if
it is, it shall be processed in accordance with this Section
13.3. If such item is not properly payable, Seller shall
dishonor said item and return it to the Federal Reserve Bank for
credit to Seller's account. After the 60 calendar day period,
Seller shall not accept any such items and such items shall be
returned marked "Account number not properly formatted."
Section 12.05. Returned Items. With respect to any items
that are credited to an account being transferred to Purchaser
pursuant hereto on or prior to the close of business on the
Closing Date that are returned unpaid after the Closing Date
("Returned Item"), and if there are sufficient funds in the
account to which such Returned Item was credited or any other
accounts on deposit at the Banking Offices of Purchaser standing
in the name of the party liable for such Returned Item, and if
Purchaser has a right of charge-back against the account to which
such Returned Item was credited or a right of set-off against
such other accounts in respect of the charge-back, Purchaser will
debit any or all of such accounts an amount equal in the
aggregate to the Returned Item and shall repay that amount to
Seller, reduced, however, by the amount of the Premium, if any,
attributable to such Returned Item. If the charge-backs or set-
offs do not provide sufficient funds for such purposes, Purchaser
will have no obligation to repay Seller the amount of such
deficiency unless and until Purchaser obtains reimbursement from
the party liable for the Returned Item; Purchaser will use
commercially reasonable efforts to obtain such reimbursement.
Notwithstanding the preceding sentence, Purchaser will be
required to repay Seller if the charge-backs or set-offs do not
provide sufficient funds for such purposes due to of Purchaser's
negligence.
Section 12.06. ACH Transactions. Seller shall arrange for
direct pay and automated clearing house transactions related to
the Deposits after the Closing Date to be redirected by the New
York Automated Clearing House (on the basis of ABA number) to
Purchaser as of the Closing Date. Purchaser agrees to execute
any necessary documents and otherwise cooperate in arranging the
redirection of such direct pay and automated clearing house
transactions.
If such redirection cannot be accomplished or if, notwith-
standing such redirection, any direct pay or automated clearing
house transactions related to the Deposits after the Closing Date
are received by the Seller, the following provisions shall be
applicable: Seller agrees that for a period of sixty (60) days
following the Closing Date it will honor all direct pay and
automated clearing house transactions it receives in the same
manner and with the same diligence as it would have prior to the
Closing Date. Seller agrees to provide Purchaser with the daily
detail necessary for Purchaser to timely credit or debit the
customer's account and to allow Purchaser to send Notifications
of Changes. Seller and Purchaser agree to a timely net daily
settlement of these transactions. At the end of such 60 day
period, Seller shall discontinue accepting and forwarding ACH
entries and funds and return them to the originators marked
"Account Closed".
Section 12.07. Items in Transit. The Purchaser shall
obtain the benefit of all items relating to or originating from
the Branch Offices which are in transit as of the Closing Date.
Section 12.08. Payments on Account Loans. Seller shall
promptly remit to Purchaser (properly endorsed without recourse)
all payments on account of the Account Loans received by Seller
after the Closing Date.
ARTICLE XIII
Miscellaneous
Section 13.01. Expenses. Except as herein otherwise
expressly provided, each party hereto shall pay its own expenses
incurred in fulfilling its obligations hereunder.
Section 13.02. Notices. Any notice or other communication
required or permitted hereunder shall be sufficiently given if
delivered in person or if sent by Federal Express or similar
express mail service, addressed as follows:
If to Seller:
XxxxxXxxx Federal Savings Bank
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxx
Executive Vice President
with copies to:
XxxxxXxxx Federal Savings Bank
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxxx, Esq.,
Deputy General Counsel
and
Williams, Caliri, Xxxxxx & Otley
0000 Xxxxx 00
Xxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
If to Purchaser:
Xxxxxx United Bank
0000 XxxXxxxxx Xxxxxxxxx
Xxxxxx, XX 00000
Attn: Xx. Xxxxxxx Xxxxxxx
with copies to:
Xxxxxx United Bank
0000 XxxXxxxxx Xxxxxxxxx
Xxxxxx, XX 00000
Attn: Xxxx Van Borkulo-Xxxxx, Esq.
Any such notice or communication, if so mailed, shall be
deemed to have been given as of the Business Day next following
the date mailed or, if delivered in person, shall be deemed given
on the date so delivered. Notice given by any other means shall
be deemed given only upon its actual receipt. Notice shall not
be given via facsimile transmission ("fax"). Either party may
specify a different address by giving written notice of said
address to the other party.
Section 13.03. Entire Agreement; Modifications; Waivers;
Headings. This Agreement constitutes the entire agreement
between the parties hereto pertaining to the subject matter
hereof and supersedes all prior and contemporaneous agreements
and understandings of the parties in connection therewith not
referred to herein. No modification or termination of this
Agreement shall be valid unless executed in writing by both
parties hereto, and no waiver of any provision of, breach of or
default under this Agreement shall be considered binding unless
executed in writing by the party granting such waiver. No waiver
of any provision of thin Agreement shall be deemed or shall
constitute a waiver of any other provision hereof or a waiver of
any subsequent breach or default (whether or not similar) nor
shall any such waiver constitute a continuing waiver. All
Exhibits referred to herein shall constitute a part of this
Agreement. Section, paragraph and subparagraph headings are not
to be considered part of this Agreement, are for convenience and
reference only, and are not to be full or accurate descriptions
of the contents of any section, paragraph or subparagraph.
Section 13.04. Agreement Not Severable. Except as
otherwise specified in this Agreement the transactions
contemplated under this Agreement shall be consummated only in
their entirety.
Section 13.05. Successors and Assigns. All of the terms
and provisions of this Agreement shall be binding upon, and inure
to the benefit of, the parties hereto and their respective
transferees, successors and assigns, but this Agreement may not
be assigned by either party without the written consent of the
other. This Agreement is personal to the parties hereto and
their successors and permitted assigns and is not intended for
the benefit of and shall not be relied upon by any other person
(including, without limitation employees of Seller) and no such
person (or any other person acting on behalf of such person)
shall be entitled to the benefit of or to enforce this Agreement;
provided that this Agreement may be relied upon by any
governmental or regulatory agency whose approval or consent is a
condition to the consummation by either party of the transactions
contemplated by this Agreement.
Section 13.06. Counterparts. This Agreement may be
executed in one or more counterparts, all of which taken together
shall constitute one instrument.
Section 13.07. Governing Law. This Agreement shall be
construed and enforced in accordance with the laws of the State
of New Jersey, to the extent that federal law does not control.
Section 13.08. No Public Announcements. Neither Purchaser
nor Seller shall make any public announcement regarding the
transactions provided for herein without the approval of the
other party; provided that, if a public announcement is required
under applicable law or governmental regulation, such party may
make such public announcement after giving notice to the other
party. Public announcement shall include but not be limited to
any voluntary discussion with or any disclosure to any reporter
or other employee, agent or contributor to any publication,
electronic media or similar communications medium or
organization.
Section 13.09. Attorney's Fees. In the event that either
party shall bring an action, suit or other proceeding to enforce
the terms and conditions of this Agreement or make available to
itself any of the remedies provided under New Jersey or federal
law, then the prevailing party shall be entitled to an award of
the costs of such action, suit or proceeding, including
reasonable attorneys' fees and expenses.
Section 13.10. Confidentiality. Purchaser agrees that it
will hold in confidence any and all "customer information," as
defined in 12 C.F.R. Section 545.132(a) (4), received by it from
Seller prior to the Closing, and will make use of such
information only for the purpose of preparing for the
consummation of the transactions contemplated hereby, and will
not disclose such "customer information" to any third party,
except if such disclosure is required by law pursuant to the
circumstances set forth in 12 C.F.R. Section 545.132 or by any
government agency in connection with its review of an application
submitted by either party for approval of the transactions
contemplated by this Agreement. Purchaser shall ensure that its
agents and representatives comply with this provision. Purchaser
further agrees that in the event this Agreement is terminated
prior to consummation for any reason whatsoever, it will return
to Seller all copies of such customer information that are in its
possession and will not in any manner make any further use or
disclosure thereof, except as may be required by applicable law.
Section 13.11. Time of the Essence. The parties
acknowledge that time is of the essence with respect to the
performance of this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed
this Agreement as of the day and year first above written.
Seller:
XXXXXXXXX FEDERAL SAVINGS BANK
/s/ XXXXX XXXXXXXXX By: /s/ XXXXXXX X. XXXXXXX
----------------------------- -------------------------
Attest Xxxxxxx X. Xxxxxxx
VP & Asst. Secty. Chairman and CEO
Date of Execution 11-21-95
------------
Purchaser
XXXXXX UNITED BANK
/s/ X. XXXX VAN BORKULO-XXXXX By: /s/ XXXXXXX X. XXXXXXX
----------------------------- --------------------------
Attest Xxxxxxx X. Xxxxxxx
X. Xxxx Van Borkulo-Xxxxx President and CEO
Executive Vice President and
Corporate Secretary Date of Execution 11/21/95
------------
SCHEDULES AND EXHIBITS
SCHEDULES
1.01(z) Excluded Deposits
1.01(dd) Other Assets
1.01(jj) Real Estate
1.01(kk) Service Contracts, Equipment and Personal
Property Leases
6.01 Litigation
EXHIBITS
1.01(b) Account Loan Assignment and Assumption Agreement
1.01(g) Assignment of Branch Lease and Assumption
Agreement
1.01(h) Assignment of Service Contracts and Equipment
Leases and Assumption Agreement
1.01(j) Xxxx of Sale
1.01(q) Deed
1.01(s) Deposit Assignment and Assumption Agreement
2.11 Closing Statement
