TRUST UNDER GREATER COMMUNITY BANCORP EXECUTIVE SUPPLEMENTAL RETIREMENT INCOME AGREEMENT
Exhibit
10.12
TRUST
UNDER GREATER COMMUNITY BANCORP
(a) This
Agreement made this 25 day of June, 2008, by and between GREATER COMMUNITY
BANCORP (the “Company”) and XXXXXX X. XXXXXXX (the “Trustee”);
(b) WHEREAS,
the Company has previously adopted the Executive Supplemental Retirement Income
Agreement as listed in Appendix A (“Plan” or “Plans”);
(c) WHEREAS,
the Company has incurred liability or expects to incur liability under the terms
of such Plans with respect to the individual participating in such Plans
(“Participant or “Participants”);
(d) WHEREAS,
the Company wish to establish a trust (hereinafter called “Trust”)
and to contribute to the Trust assets to be held therein, subject to the claims
of the Company’s creditors in the event of Company’s Insolvency, as herein
defined, until paid to Participants and their beneficiaries in such manner and
at such times as specified in the Plans;
(e) WHEREAS,
it is the intention of the parties that this Trust shall constitute an unfunded
arrangement and shall not affect the status of the Plans as unfunded
arrangements maintained for the purpose of providing deferred compensation for a
select group of management or highly compensated employees for purposes of Title
I of the Employee Retirement Income Security Act of 1974, as
amended;
(f) WHEREAS,
it is the intention of the Company to make contributions to the Trust to provide
a source of funds to assist in the meeting of the liabilities under the
Plans;
NOW,
THEREFORE, the parties do establish the Trust and agree that the Trust shall
comprise, held and disposed of as follows:
Section
1. ESTABLISHMENT OF TRUST
(a) The
Company may from time to time make, or cause to be made, contributions to the
Trust of cash, including insurance contracts and/or marketable securities, which
are acceptable to the Trustee, and which shall become the principal of the Trust
to be held, administered and disposed of by the Trustee as provided in this
Trust Agreement. Neither the Trustee nor any Participant or
beneficiary shall have any right to compel such contributions.
(b) Except
as provided in Section 4, the Trust hereby established shall be
irrevocable.
(c) The
Trust is intended to be a grantor trust, of which the Company is the grantor,
within the meaning of subpart E, part 1, subchapter J, chapter 1, subtitle A of
the Internal
Revenue
Code of 1986, as amended, and shall be construed accordingly.
(d) The
principal of the Trust, and any earnings thereon shall be held separate and
apart from other funds of the Company or any of its subsidiaries and shall be
used exclusively for the uses and purposes of Plan participants and general
creditors as herein set forth. The Participants and their
beneficiaries shall have no preferred claim on, or any beneficial ownership
interest in, any assets of the Trust. Any rights created under the
Plans and this Trust Agreement shall be mere unsecured contractual rights of
Participants and their beneficiaries against the Company. Any assets
held by the Trust will be subject to the claims of the Company’s general
creditors under federal and state law in the event of Insolvency, as defined in
Section 3(a) herein.
Section
2. PAYMENTS TO PLAN
PARTICIPANTS AND THEIR BENEFICIARIES.
(a) The
Company shall deliver to the Trustee a copy of the Plan document for each of the
Plans, together with a schedule (the “Payment Schedule”) that indicates the
amounts payable in respect of each Participant (and his or her beneficiaries),
that provides a formula or other instructions acceptable to the Trustee for
determining the amounts so payable, the form in which such amount is to be paid
(as provided for or available under the Plan), and the time of commencement for
payment of such amounts. If the Company has not done so previously,
it shall deliver the Plan documents and the Payment Schedule to the Trustee
before the occurrence of any Change of Control, as defined herein, and upon the
occurrence of a Change of Control, shall deliver to the Trustee a current census
of Participants and a current Payment Schedule (to the extent revisions to the
most previous Payment Schedule are necessary or
appropriate). Following any Change of Control, the Payment Schedule
may not be modified or amended by the Company. Except as otherwise
provided herein, the Trustee shall make payments to the Participants and their
beneficiaries in accordance with such Payment Schedule or, to the extent
benefits cannot be determined pursuant to the Payment Schedule, in accordance
with the Plan documents (as interpreted and directed by the
Company). The Trustee shall make provisions for the reporting and
withholding of any federal, state or local taxes that may be required to be
withheld with respect to the payment of benefits pursuant to the terms of the
Plans and shall pay amounts withheld to the appropriate taxing authorities or
determine that such amounts have been reported, withheld and paid by the
Company.
(b) Subject
to any determination made and set forth in the Payment Schedule described in
Section 2(a) following a Change of Control, the entitlement of a Participant or
his or her beneficiaries to benefits under the Plans shall be determined by the
Company or such party as it shall designate under the Plans, and any claim for
such benefits shall be considered and reviewed under the procedures set out in
the Plans.
(c) The
Company may make payment of benefits directly to Plan participants or their
beneficiaries as they become due under the terms of the Plans. The
Company shall notify the Trustee of its decision to make payment of benefits
directly prior to the time amounts are payable to participants or their
beneficiaries. In addition, if the principal of the Trust, and any
earnings thereon, are not sufficient to make payments of benefits in accordance
with the terms of the Plan, the Company shall make the balance of each such
payment as it falls due. The Trustee shall notify the Company where
principal and earnings are not sufficient.
(d) Upon
a Change of Control, the Company shall, as soon as possible, but
in no
event later than 5 days following the Change of Control or the plan termination,
as the case may be, make an irrevocable contribution to the Trust in an amount
equal to $570,000, to pay each Participant or beneficiary the vested benefits to
which he or she would be entitled pursuant to the terms of the Plans as of the
date on which the Change of Control or plan termination, as the case may be,
occurred.
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Section
3.
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TRUSTEE
RESPONSIBILITY REGARDING PAYMENTS TO TRUST BENEFICIARY WHEN COMPANY IS
INSOLVENT.
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(a) The
Trustee shall cease payment of benefits to Participants and their beneficiaries
if the Company is Insolvent. The Company shall be considered
“Insolvent” for purposes of this Trust Agreement if (i) the Company is unable to
pay its debts as they become due, (ii) the Company is subject to a pending
proceeding as a debtor under the United States Bankruptcy Code or (iii) the
Company is determined to be Insolvent by any state of federal regulatory
authority.
(b) At
all times during the continuance of this Trust, as provided in Section 1(d)
hereof, the principal and income of the Trust shall be subject to claims of
general creditors of the Company under federal and state law as set forth
below.
(1) The
Board of Directors and the Chief Executive Officer of the Company shall have the
duty to inform the Trustee in writing of the Company’s Insolvency. If
a person claiming to be a creditor of the Company alleges in writing to the
Trustee that the Company has become Insolvent, the Trustee shall determine
whether the Company is Insolvent and, pending such determination, the Trustee
shall discontinue payment of benefits to Plan participants or their
beneficiaries.
(2) Unless
the Trustee has actual knowledge of the Company’s Insolvency, or has received
notice from the Company or a person claiming to be a creditor alleging that the
Company is Insolvent, the Trustee shall have no duty to inquire whether the
Company is Insolvent. The Trustee may in all events rely on such
evidence concerning the Company’s solvency as may be furnished to the Trustee
and that provides the Trustee with a reasonable basis for making a determination
concerning the Company’s solvency.
(3) If
at any time the Trustee has determined that the Company is Insolvent, the
Trustee shall discontinue payments to Plan participants or their beneficiaries
and shall hold the assets of the Trust for the benefit of the Company’s general
creditors. Nothing in this Trust Agreement shall in any way diminish
any rights of Plan participants or their beneficiaries to pursue their rights as
general creditors of the Company with respect to benefits due under the Plans or
otherwise.
(4) the
Trustee shall resume the payment of benefits to Plan participants or their
beneficiaries in accordance with Section 2 of this Trust Agreement only after
the Trustee has determined that the Company is not Insolvent (or is no longer
Insolvent).
(c) Provided
that there are sufficient assets, if the Trustee discontinues the payment of
benefits from the Trust pursuant to Section 3(b) hereof and subsequently resumes
such payments, the first payment following such discontinuance shall include the
aggregate amount of all payments due to Plan participants or their beneficiaries
under the terms of the Plans for the period of
such
discontinuance, less the aggregate amount of any payments made to Plan
participants or their beneficiaries by the Company in lieu of the payments
provided for hereunder during any such period of discontinuance.
Section
4. PAYMENTS TO
COMPANY.
Except as
provided in Section 3 hereof or to reimburse the Company for taxes due on
earnings of the Trust (at an agreed upon 30% tax rate), the Company shall have
no right or power to direct the Trustee to return to the Company or to divert to
others any of the Trust assets before all payment of benefits have been made to
Plan participants and their beneficiaries pursuant to the terms of the
Plans.
Section
5. INVESTMENT
AUTHORITY.
The
Trustee shall invest and reinvest the principal and income of the Trust, in its
discretion, in securities and in any other form of property not prohibited by
law, without regard to any restrictions imposed by state law or investment by
fiduciaries, but subject, however, to such written investment guidelines or
directions, if any, as the Company may provide from time to time to the
Trustee. The Trustee may invest in securities (including
stock or rights to acquire stock) or obligations issued by the Company, or in
securities of any open-end or closed-end management type investment company or
investment trust registered under the Investment Company Act of 1940, as
amended, which would be regarded by prudent businessmen as a safe
investment. The fact that the Trustee or any affiliate of the Trustee
is providing services to and receiving remuneration from any of the foregoing
investment companies or trusts as investment advisor, custodian, transfer agent,
registrar, or otherwise shall not preclude the Trustee from investing in the
securities of such investment companies or investment trusts. The
Trustee may also invest and reinvest or otherwise deposit the Trust assets in
savings accounts, time deposit accounts, certificates of deposit, money market
funds, or other evidences of deposit issued by Trustee and/or any other national
bank, savings and loan institution, state member bank, state non-member bank, or
other depository institution which now or in future is an affiliate or
subsidiary of Trustee. All rights associated with
assets of the Trust shall be exercised by the Trustee or the person designated
by the Trustee, and shall in no event be exercisable by or rest with the
Participants, except that prior to a Change of Control voting rights with
respect to the Trust assets will be exercised by the Company.
The
Trustee shall have the further right to:
(a) To
borrow from anyone such amount or amounts of money necessary to carry out the
purpose of this Trust and for that purpose to mortgage or pledge all or any part
of the Trust;
(b) To
retain in the Trust for investment or pending distributions, any portion of the
Trust in cash deemed appropriate by the Trustee, notwithstanding that Trustee or
any affiliate thereof may accrue interest on such amounts;
(c) To
deposit securities with a clearing corporation as defined in Article Eight of
the Uniform Commercial Code; to hold the certificates representing securities,
including those in bearer form, in bulk form with, and to merge such
certificates into, certificates of the same class of the same issuer which
constitutes assets of other accounts or owners, without certification as to the
ownership attached; and to utilize a book-entry system for the transfer or
pledge of securities held by the Trustee or by a clearing corporation, provided
that the records of the Trustee shall indicate
the
actual ownership of the securities and other property of the Trust
Fund;
(d) To
participate in and use the Federal book-entry Account system, a service provided
by the Federal Reserve Bank for its member banks for deposit of Treasury
securities; and
(e) To
hold securities or property in the name of the Trustee or its nominee or
nominees or in such other form as it determines best with or without disclosing
the Trust relationship, providing the records of the Trust shall indicate the
actual ownership of such securities or other property.
Section
6. DISPOSITION OF INCOME.
During
the term of this Trust, all income received by the Trust, net of expenses and
taxes (to be paid to the Company as set forth in Section 4), shall be
accumulated and reinvested.
Section
7. ACCOUNTING BY TRUSTEE.
The
Trustee shall keep accurate and detailed records of all investments, receipts,
disbursements, and all other transactions required to be made, including such
specific records as shall be agreed upon in writing between the Company and the
Trustee. Within 60 days following the close of each calendar year and
within 60 days after the removal or resignation of the Trustee, the Trustee
shall deliver to the Company a written account of its administration of the
Trust during such year or during the period from the close of the last preceding
year to the date of such removal or resignation, setting forth all investments,
receipts, disbursements and other transactions affected by it, including a
description of all securities and investments purchased and sold with the cost
or net proceeds of such purchases or sales (accrued interest paid or receivable
being shown separately), and showing all cash, securities and other property
held in the Trust at the end of such year or as of the date of such removal or
resignation, as the case may be.
Section
8. RESPONSIBILITY OF
TRUSTEE.
(a) The
Trustee shall act with the care, skill, prudence and diligence under the
circumstances then prevailing that a prudent person acting in the like capacity
and familiar with such matters would use in the conduct of an enterprise of a
like character and with like aims, provided, however, that the Trustee shall
incur no liability to any person for any action taken pursuant to a direction,
request or approval given by the Company which is contemplated by, and in
conformity with, the terms of the Plans or this Trust and is given in writing
(or any other mutually agreeable form) by the Company. In the
event of a dispute between the Company and a party, the Trustee may apply to a
court of competent jurisdiction to resolve the dispute.
(b) If
the Trustee undertakes or defends any litigation arising in connection with this
Trust, the Company agrees to indemnify the Trustee against the Trustee’s costs,
expenses and liabilities (including, without limitation, attorneys’ fees and
expenses) relating thereto and to be primarily liable for such
payments. If the Company does not pay such costs, expenses and
liabilities in a reasonably timely manner, the Trustee may obtain payment from
the Trust.
(c) The
Trustee may consult with legal counsel (who may also be counsel for the Company
generally) with respect to any of its duties or obligations
hereunder.
(d) The
Trustee may hire agents, accountants, actuaries, investment advisors, financial
consultants or other professionals to assist in performing any of its duties or
obligations hereunder.
(e) The
Trustee shall have, without exclusion, all powers conferred on the Trustees by
applicable law, unless expressly provided otherwise herein, provided, however,
that if an insurance policy is held as an asset of the Trust, the Trustee shall
have no power to name a beneficiary of the policy other than the Trust, to
assign the policy (as distinct from conversion of the policy to a different
form) other than to a successor the Trustee, or to loan to any person the
proceeds of any borrowing against such policy.
(f) Notwithstanding
any powers granted to the Trustee pursuant to this Trust Agreement or to
applicable law, the Trustee shall not have any power that could give this Trust
the objective of carrying on a business and dividing the gains therefrom, within
the meaning of Section 301.7701-2 of the Procedure and Administrative
Regulations promulgated pursuant to the Internal Revenue Code.
(g) The
Trustee shall not be responsible or liable for any failure or delay in the
performance of its obligations under this Trust Agreement arising out of or
caused directly or indirectly, by circumstances beyond its reasonable control,
including without limitation: acts of God; earthquakes; fires; floods; wars;
civil or military disturbances; sabotage; epidemics; riots; interruptions; loss
or malfunction of utilities or communication services; accidents; labor
disputes; acts of civil or military authority; governmental action; or inability
to obtain labor, material, equipment or transportation.
(h) The
Company recognizes that a burden of litigation may be imposed on Trustee, as a
result of some act or transaction for which it has no responsibility or over
which it has no control under this Agreement. Accordingly, and in
consideration of Trustee's agreement to act as trustee hereunder, the Company
hereby agrees to indemnify and hold Xxxxxx X. Xxxxxxx and his affiliates, and
employees harmless from and against all claims, expenses (including reasonable
counsel fees), liabilities, damages, actions or other charges incurred by or
assessed against Xxxxxx X. Xxxxxxx, as direct or indirect result of anything
done or omitted by Xxxxxx X. Xxxxxxx in reliance upon the directions (or absence
of directions) of the Plan Administrator, the Company, any Investment Adviser,
or a Plan participant or beneficiary, or upon the advice of Trustee's counsel,
provided, however, that the foregoing shall not apply to the extent of the
Trustee's fraud or negligence. The Trustee agrees to indemnify and
hold the Company and its affiliates, directors, officers, and employees harmless
from and against all claims, expenses (including reasonable counsel fees),
liabilities, damages, actions or other charges incurred by or assessed against
the Company, as a result of the Trustee's fraud or negligence.
Section
9. COMPENSATION AND EXPENSES OF
TRUSTEE.
The Trust
shall pay all administrative and the Trustee’s out of pocket fees and
expenses.
Section
10. RESIGNATION AND REMOVAL OF
TRUSTEE.
(a) The
Trustee may resign at any time by written notice to the Company, which shall be
effective 90 days after receipt of such notice unless the Company and the
Trustee agree otherwise.
(b) The
Trustee may be removed by the Company on 300 days’ notice or upon shorter
notice accepted by the Trustee.
(c) Upon
resignation or removal of the Trustee and appointment of a successor the
Trustee, all assets shall subsequently be transferred to the successor the
Trustee. The transfer shall be completed within 120 days after
receipt of notice of resignation, removal or transfer, unless the Company
extends the time limit.
(d) If
the Trustee resigns or is removed, a successor shall be appointed, in accordance
with Section 11 hereof, by the effective date of resignation or removal under
paragraphs (a) or (b) of this section. If no such appointment
has been made, the Trustee may apply to a court of competent jurisdiction for
appointment of a successor or for instructions. All expenses of the
Trustee in connection with the proceeding shall be allowed as administrative
expenses of the Trust.
Section
11. APPOINTMENT OF SUCCESSOR.
(a) If
the Trustee resigns or is removed in accordance with Section 10(a)
or (b) hereof, the Company may appoint any third party, such as a bank
trust department or other party that may be granted corporate the Trustee powers
under state law, as a successor to replace the Trustee upon resignation or
removal. The appointment shall be effective when accepted in writing
by the new the Trustee, who shall have all of the rights and powers of the
former the Trustee, including ownership rights in the Trust
assets. The former Trustee shall execute any instrument necessary or
reasonably requested by the Company or the successor Trustee to evidence the
transfer.
(b) The
successor Trustee need not examine the records and acts of any prior Trustee and
may retain or dispose of existing Trust assets, subject to Sections 7 and 8
hereof. The successor Trustee shall not be responsible for and
Company shall indemnify and defend the successor Trustee from any claim or
liability resulting from any action or inaction of any prior Trustee or from any
other past event, or any condition existing at the time it becomes successor
Trustee.
Section
12. AMENDMENT OR TERMINATION.
(a) This
Trust Agreement may be amended by a written instrument executed by the Trustee
and the Company. Notwithstanding the foregoing, no such amendment
shall conflict with the terms of the Plans or shall make the Trust revocable
after it has become irrevocable.
(b) The
Trust shall not terminate until the date on which Plan participants and their
beneficiaries are no longer entitled to benefits pursuant to the terms of the
Plans. Upon termination of the Trust any assets remaining in the
Trust shall be returned to the Company.
(c) All
assets in the Trust at termination shall be paid to the participant or
beneficiary of the Plans.
Section
13. MISCELLANEOUS.
(a) Any
provision of this Trust Agreement prohibited by law shall be
ineffective
to the extent of any such prohibition, without invalidating the remaining
provisions hereof.
(b) Benefits
payable to Plan participants and their beneficiaries under this Trust Agreement
may not be anticipated, assigned (either at law or in equity), alienated,
pledged, encumbered or subjected to attachment, garnishment, levy, execution or
other legal or equitable process.
(c) This
Trust Agreement shall be governed by and construed in accordance with the laws
of Wisconsin and of the United States of America.
(d) For
purposes of this Trust, Change of Control shall mean:
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(i) The
purchase or other acquisition by any person, entity or group of persons,
within the meaning of section 13(d) or 14(d) of the Securities Exchange
Act of 1934 (“Act”), or any comparable successor provisions, other than
persons who are currently shareholders of the Company, of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the Act) of
20 percent or more of either the outstanding shares of common stock or the
combined voting power of the then outstanding voting securities entitled
to vote generally of the Company, or (ii) the approval by the shareholders
of the Company of (A) a reorganization, merger, or consolidation, in each
case, with respect to which persons who were shareholders of the Company
immediately prior to such reorganization, merger or consolidation do not,
immediately thereafter, own more than 50 percent of the combined voting
power, entitled to vote generally in the election of directors, of the
reorganized, merged or consolidated entity’s then outstanding securities,
or (B) a liquidation or dissolution of the Company, or (C) the sale of all
or substantially all of the assets of the
Company.
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(e) Any
notices required or designed to be given to any party hereto shall be in
writing, and shall be deemed given when actually received by the party to whom
it was addressed.
Section
14. EFFECTIVE DATE.
The
effective date of this Trust Agreement shall be June 30, 2008.
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ATTEST:
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/s/ Xxxxxxx X.
Xxxxxx
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By:
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/s/ Xxxxxxx X. Xxxxx,
Xx.
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Xxxxxxx
X. Xxxxxx
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Xxxxxxx
X. Xxxxx, Xx.
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Chairman,
President & CEO
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XXXXXX
X. XXXXXXX
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By:
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/s/ Xxxxxx X.
Xxxxxxx
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Trustee
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APPENDIX
A
AMENDMENT
TO EXECUTIVE SUPPLEMENTAL RETIREMENT INCOME AGREEMENT
This Amendment is made as of
_________________ between Xxxxxxx Xxxxx (“Executive”) and Greater Community Bank
(“Bank”), a state chartered commercial bank having its principal place of
business in New Jersey.
RECITALS
WHEREAS, the Bank has adopted an
Executive Supplemental Retirement Income Agreement (“Agreement”) to pay
additional compensation to the Executive after retirement or other termination
of employment; and
WHEREAS, the Agreement was effective
February 1, 2004; and
WHEREAS, Greater Community Bancorp
(“GCB”) is a party to the Agreement for the sole purpose of guaranteeing the
Bank’s performance; and
WHEREAS, the Executive, Bank, and GCB
desire to amend the Agreement to comply with Internal Revenue Code Section 409A
and the applicable federal regulations thereto; and
WHEREAS, GCB has entered into an
agreement and plan of merger with Valley National Bancorp ("Valley") dated March
19, 2008 pursuant to which GCB will merge into Valley (the "Merger");
and
WHEREAS, GCB and Valley wish to provide
a payment upon the Merger in satisfaction of Bank's obligations under the
Agreement.
WHEREAS, Section 13.1 of the Agreement
permits the Agreement to be amended with the express written consent of the
parties and pursuant to a resolution of the Board of Directors.
NOW THEREFORE, the Agreement
is amended as follows:
1. Upon
the merger of GCB into Valley, GCB shall pay $570,000.00 into a rabbi trust
selected by Executive. Executive shall be permitted to select the
investments of the rabbi trust.
2. The
assets held in the rabbi trust shall be distributed to Executive or his secular
trust, as selected by Executive, on January 5, 2009.
3. Upon
payment of the amount pursuant to Section 2 above, the parties shall have no
further obligations under the Agreement.
4. To
the extent applicable, it is intended that the Agreement and this Amendment
comply with the requirements of Section 409A of the Internal Revenue Code, and
they shall be interpreted in a manner consistent with this intent in order to
avoid the imposition of any additional tax under Section 409A of the Code. The
parties shall cooperate to take such actions and to make such changes as are
necessary to comply with such requirements.
IN WITNESS WHEREOF the Parties
consent to this Amendment.
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ATTEST:
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GREATER
COMMUNITY BANK
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By:
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ATTEST:
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By:
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WITNESS:
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EXECUTIVE
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Xxxxxxx
Xxxxx
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