PURCHASE AND ASSUMPTION AGREEMENT
THIS PURCHASE AND ASSUMPTION AGREEMENT (this "Agreement") is entered
into as of this 22nd day of April 1997, by and between EAGLE BANK, a federally
chartered savings bank having its principal office in Bristol, Connecticut
("Eagle"), and LIBERTY BANK, a Connecticut chartered mutual savings bank having
its principal office in Middletown, Connecticut ("Liberty"). Eagle and Liberty
are hereinafter sometimes collectively referred to as the "Constituent
Entities."
WHEREAS, MidConn Bank ("MidConn") presently operates a branch office
located at 000 Xxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxxxx (the "Middlefield Office");
and
WHEREAS, pursuant to an Agreement and Plan of Merger dated as of
January 27, 1997 by and among Eagle Financial Corp. ("EFC"), Eagle and MidConn,
EFC will acquire MidConn through a merger of MidConn with and into Eagle (the
"Merger"); and
WHEREAS, Eagle wishes to assign and sell, and Liberty wishes to assume
and purchase the deposits, certain deposit related loans and certain fixed
assets associated with the Middlefield Office (collectively, the "Branch Sale")
immediately upon the Merger or as soon thereafter as possible;
NOW, THEREFORE, in consideration of the foregoing, of the mutual
agreements, covenants, representations, warranties and conditions contained
herein, and of other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Constituent Entities agree as
follows:
ARTICLE I
TRANSFER OF ASSETS AND ASSUMPTION OF DEPOSIT LIABILITIES
1.01 EFFECTIVE DATE. Except as otherwise provided herein, the closing
date (hereinafter referred to as the "Effective Date") shall be the first day
upon which (i) all regulatory approvals for the Branch Sale have been obtained
and all regulatory waiting periods have expired, so that the Branch Sale may be
legally consummated in accordance with the terms of this Agreement, and (ii)
consummation of the Merger shall have occurred; or such other date as may be
mutually agreed to by the Constituent Entities.
1.02 PURCHASE OF ASSETS. Eagle agrees that, subject to the
terms and conditions of this Agreement, it will validly sell, assign, transfer,
convey and deliver to Liberty, as of the close of business on the Effective
Date:
(i) all of its rights, title and interest, as lessee, under
the real estate lease pertaining to the Middlefield
Office, together with all leasehold improvements
thereon; and
(ii) all of its rights, title and interest in and to all of
the furniture, fixtures and equipment used in the
operation of the Middlefield Office as listed on
Exhibit A (the "Branch Assets").
1.03 ASSUMPTION OF DEPOSIT LIABILITIES.
(a) Liberty agrees, subject to the terms and conditions of this
Agreement, to assume and to pay, perform and discharge all Deposits (defined
below), including accrued interest, attributed to the Middlefield Office at the
close of business on the Effective Date. "Deposits" means all deposit accounts
as of the close of business on the Effective Date attributable to the
Middlefield Office (E.G.,
maintained with or at the Middlefield Office) on the records of Eagle after the
Merger which are defined as deposits under Section 3(1) of the Federal Deposit
Insurance Act, including (a) principal and interest accrued thereon as of the
close of business on the Effective Date, (b) any collected or uncollected
deposits associated therewith, and (c) any overdrawn accounts (to be assumed at
their negative balance). A schedule of Deposits presently existing as of the
date specified is set forth at Exhibit B.
(b) Liberty further agrees, subject to the terms and conditions of this
Agreement, to pay on the Effective Date to Eagle, as a consideration for the
Branch Assets and Deposits, a premium equal to six percent of the daily average
of the Deposits for the period commencing at the close of business on the last
business day which is at least 30 days prior to the Effective Date, and ending
at the close of business on the Effective Date.
(c) The amounts paid under Sections 1.03 (a) and (b) on the Effective
Date shall be based on the amount of the Deposits as of the close of business
five business days prior to the Effective Date, with an adjustment, and a
corresponding payment by Eagle to Liberty or Liberty to Eagle as the case may
be, based on the actual amounts, such payment to be made within ten business
days of the Effective Date.
1.04 PURCHASE OF LOANS.
(a) In addition to the purchase of Branch Assets and assumption of
Deposits described above, Liberty shall purchase on the Effective Date certain
deposit related loans attributed on the records of Eagle to the Middlefield
Office. These loans shall consist of: (i) loans secured by Deposits, including
but not limited to, savings accounts and certificates, at the Middlefield
Office, and (ii) loans created by writing a check or similar instrument on an
account at the Middlefield Office, utilizing an established line of credit.
Within five business days of the date of this Agreement, Eagle will provide to
Liberty a list of such loans as of a recent practicable date. Each loan referred
to in clause (i) shall be fully secured by a deposit account or accounts
pursuant to a valid written agreement with the borrower. Each line of credit
loan referred to in clause (ii) shall be pursuant to a valid written agreement
with the borrower. All forms of written agreements used for such line of credit
loans will be provided to Liberty.
(b) All loans (and any notes, other evidences of indebtedness or
security instruments associated therewith) transferred to Liberty on the
Effective Date pursuant to Section 1.04(a) shall be transferred without recourse
and without any warranties or representations as to the collectability of any
such loans or the creditworthiness of any such obligors.
(c) The purchase price for each loan purchased pursuant to Section
1.04(a) shall be equal to the unpaid principal balance plus accrued and unpaid
interest as of the close of business on the Effective Date.
(d) The amount paid or offset under Section 1.04(c) on the Effective
Date shall be based on Eagle's estimates of the amount of all loans to be
purchased under Section 1.04(a), with an adjustment to be made based on the
actual amount within ten business days of the Effective Date.
1.05 OBLIGATIONS OF EAGLE ON THE EFFECTIVE DATE. On the Effective Date,
Eagle will:
(a) deliver to Liberty the Branch Assets;
(b) execute, acknowledge (if appropriate) and deliver to Liberty a xxxx
of sale as set forth in Exhibit C hereto and all customary instruments of
conveyance, assignment and transfer as shall be reasonably necessary or
advisable to consummate the sale and transfer to Liberty of the Branch Assets;
the lease assignment, the landlord consent, and the Subordination, Attornment
and Non-
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Disturbance Agreement in substantially the forms of Exhibits D, E and F,
respectively, hereto; and such other documents to be in forms reasonably
satisfactory to Liberty;
(c) wire transfer to Liberty on the Effective Date an amount equal to
the Deposits, LESS the sum of: (i) the payment for the Branch Assets under
Section 1.02(b), (ii) the deposit premium determined pursuant to Section
1.03(b), (iii) the purchase price for the deposit related loans under Section
1.04, and (iv) the amount of cash on hand at the Middlefield Office at the close
of business on the Effective Date; and
(d) assign, transfer and deliver to Liberty such of the following
records and documents pertaining to the Deposits to be assumed by Liberty and
any other records or documents reasonably requested by Liberty as exist and are
in Eagle's possession, and as are necessary to enable Liberty to service such
deposit accounts and loans on a continuing basis:
(i) Originals (or copies where appropriate) of signature
cards, retirement account files, orders and contracts
between Eagle or MidConn, as the case may be, and
customers of accounts to be transferred hereunder,
taxpayer identification number certifications and
historical records and documents relating thereto; and
(ii) The form of rules and regulations and disclosures
applicable to the accounts to be transferred hereunder.
Liberty agrees that it will preserve and safely keep, for as long as
may be required by applicable law, all of the signature cards, orders,
contracts, forms, taxpayer identification number certifications, and records
hereinabove referred to for the joint benefit of itself and Eagle, and that it
will permit Eagle and its representatives, subject to applicable law, to
inspect, and make extracts from or copies of, any such signature cards, orders,
files, contracts, forms, taxpayer identification number certifications or
records, at any reasonable time, as shall be reasonably necessary to Eagle for
purposes of its records. Eagle agrees that it will preserve and safely keep, for
as long as may be required by applicable law, all of the files, books of
accounts and records as exist and are in Eagle's possession pertaining to the
past history of the accounts transferred hereunder, including deposit slips,
canceled checks or withdrawal orders, for the joint benefit of itself and
Liberty, and that it will permit Liberty and its representatives, subject to
applicable law, to inspect, and make extracts from or copies of, any such files,
books of accounts or records, at any reasonable time, as shall be reasonably
necessary to Liberty for purposes of its records.
(e) deliver to Liberty updated lists of the Deposits and the loans
referenced in Section 1.04, in each case as of the close of business five
business days prior to the Effective Date.
1.06 SAFE DEPOSIT BOXES AND SAFEKEEPING ITEMS.
(a) Eagle agrees on the Effective Date to transfer and deliver to
Liberty all safe deposit boxes for customers at the Middlefield Office together
with all contracts, records, master keys and, as to unrented boxes, customer
keys relating thereto. Within five business days of the date of this Agreement,
Eagle will provide to Liberty a list of outstanding contracts for safe deposit
boxes at the Middlefield Office, including the expiration thereof.
(b) Liberty agrees to assume, honor, and discharge, after the Effective
Date, the duties and obligations of Eagle with respect to such safe deposit
boxes, and shall be entitled to any right or benefit arising henceforth from
such safe deposit business after the Effective Date, it being understood that
net prepaid safe deposit rental income shall be not allocated pro rata between
the Constituent Entities as of the Effective Date.
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1.07 ASSIGNMENT AND ASSUMPTION AGREEMENT. To evidence the assumption by
Liberty of the liabilities and obligations of Eagle assumed pursuant to this
Agreement, Liberty will execute, acknowledge, and deliver to Eagle, on the
Effective Date, an assignment and assumption agreement in substantially the form
attached hereto as Exhibit G.
1.08 CERTAIN TRANSITIONAL MATTERS. Following the Effective Date:
(a) Liberty agrees to honor in accordance with law, up to the collected
amount on deposit (and any other funds available by reason of any agreement
between the depositor and Eagle or MidConn, as the case may be, and copies of
which, or the forms of which Eagle has provided to Liberty), all properly drawn
and presented checks, drafts, electronic debits and credits and withdrawal
orders presented to Liberty by mail, over its counters, through the check
clearing system, and Automated Clearing House of the banking industry, by
depositors of the accounts assumed, whether drawn on the checks, withdrawal or
draft forms provided by Eagle or MidConn, as the case may be, or by Liberty, and
in all other respects to discharge, in the usual course of the banking business,
the duties and obligations of Eagle or MidConn, as the case may be, with respect
to the balances due and owing to the depositors whose accounts are assumed by
Liberty. Liberty's obligation under this Section 1.08(a) to honor checks,
withdrawals, draft forms and electronic debits and credits provided by Eagle or
MidConn, as the case may be, and carrying its imprint shall expire at the close
of business on the 90th business day after the Conversion Date (as defined
below) or a date mutually agreeable to both Constituent Entities.
(b) At least 30 days before the Effective Date, Liberty shall, at its
own cost and expense, have the right to provide notice regarding the pending
assumption to each depositor of an account to be assumed, which notice shall be
reasonably acceptable to Eagle as to form and content. On or as soon as
practicable after the Effective Date, Liberty shall begin processing checks
drawn on the assumed accounts on the forms of Liberty. The date on which Liberty
begins processing checks on its forms is called the "Conversion Date." Prior to
the Conversion Date, depositors whose deposit accounts have been assumed by
Liberty may continue to draw checks on the assumed accounts using the forms of
Eagle or MidConn, as the case may be, provided that after the Effective Date,
the cost of processing checks drawn on the assumed accounts and the payment of
such checks shall be the responsibility of Liberty.
If after the Conversion Date, any such depositors continue to use
checks on forms of Eagle, or otherwise demand payment from Eagle for all or any
part of any such assumed deposit liabilities, Eagle shall not be responsible or
liable for making such payment. Instead, at any time up to and including the
90th business day after the Conversion Date, or a date mutually agreeable to
both parties, Eagle shall assume custody of the check or other item presented
for payment, including electronic items, on an account which has been
transferred with the Middlefield Office, batch such items in a manner that is
mutually agreed upon by both parties, and make them available to Liberty in such
manner and at such time and place as shall be mutually agreed upon by both
parties, in order to allow Liberty sufficient time to process such items in
accordance with applicable statutes, regulations, and clearing house agreements
to which Liberty is subject.
In order to reduce the continuing charges to Eagle through the check
clearing system of the banking industry which will result from check forms of
Eagle or MidConn, as the case may be, being used after the Conversion Date by
the depositors whose accounts are assumed, Liberty agrees, at its cost and
expense, and without cost to depositors, prior to the Conversion Date but not
earlier than five business days prior to the Effective Date (and only with the
express written consent of Eagle or MidConn, as the case may be, if prior to the
Effective Date, which consent shall not be unreasonably withheld, conditioned or
delayed), to furnish each depositor of an assumed account with not less than 50
checks on the forms of Liberty, with instructions to utilize Liberty's checks
and to destroy unused checks of Eagle or MidConn, as the case may be, after the
Conversion Date or a date mutually agreeable to both parties. Eagle hereby
agrees that after the 90th business day after the Conversion
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Date or a date mutually agreeable to both parties, it shall, with respect to any
check or other item presented to it for payment on an account which has been
transferred with the Middlefield Office, at its sole option, either: (i) return
such check or other item with reference to the maker thereof; or (ii) assume
custody thereof, batch the same in a manner that is mutually agreed upon by
Liberty and Eagle, and make it available to Liberty in such manner and at such
time and place as shall be mutually agreed upon by Eagle and Liberty, in order
to allow Liberty sufficient time to process such items in accordance with
applicable statutes, regulations, and clearing house agreements to which Liberty
is subject.
(c) Liberty agrees, no later than the start of the second business day
after demand by Eagle, to pay Eagle an amount equivalent to the amount of any
uncollected item included in a depositor's balance on the Effective Date which
is returned after the Effective Date as not collected. Liberty shall be required
to make such payment for an item only up to the amount on deposit with Liberty
at the time Eagle makes the demand aforesaid and for any item paid before the
expiration of a hold properly placed on the depositor's account by Eagle or
MidConn, as the case may be, prior to the close of business on the Effective
Date.
1.09 INDEMNIFICATION.
(a) Eagle shall indemnify, hold harmless and defend Liberty from and
against all losses and liabilities, including reasonable legal fees and
expenses, arising out of any actions, suits or proceedings commenced on or prior
to the Effective Date (other than proceedings to prevent or limit the
consummation of this Agreement) relating to actions or omissions involving
operations at the Middlefield Office or to the assets transferred or the
liabilities assumed pursuant to this Agreement, and Eagle shall indemnify, hold
harmless and defend Liberty from and against all losses and liabilities
(including reasonable legal fees) arising out of any actions, suits or
proceedings commenced after the Effective Date but which relate to actions or
omissions on or prior to the Effective Date involving operations at the
Middlefield Office or the assets transferred or the liabilities assumed pursuant
to this Agreement. Eagle agrees further to indemnify, hold harmless (and where
applicable defend) Liberty against all claims, losses, liabilities (including
reasonable legal fees and expenses) and obligations resulting from any material
breach of any agreement or warranty made by Eagle in this Agreement or in any
document delivered to Liberty hereunder or resulting from the material
inaccuracy of any representation made in this Agreement or in any document
delivered by Eagle to Liberty hereunder. Liberty will give Eagle written notice
of a threatened or pending injury within 30 days of become aware of such pending
or threatened injury (except in the case where Liberty's first notice is its
receipt of the complaint in which case such time for giving notice shall be 15
days of its learning of such threatened or pending injury), together with a
general statement of facts known to it regarding such threatened or pending
injury. Eagle will then have 45 days from the date it received such notice to
investigate the threatened or pending claim and determine whether it will elect
to assume the defense of the matter involving such threatened or pending injury.
If it does so elect, Eagle will be given Liberty's full cooperation and
assistance in maintaining such defense. Unless such settlement contains a full
release of Liberty, Eagle shall not settle a claim without the prior written
consent of Liberty, which consent shall not be unreasonably withheld. Eagle
shall not be liable for any amounts in settlement of a claim or action as
described above if such settlement is effected without Eagle's prior written
consent, which consent shall not be unreasonably withheld. It is understood that
the obligations of Eagle under this paragraph shall survive the Effective Date.
(b) Liberty shall indemnify, hold harmless and defend Eagle from and
against all claims, losses, liabilities and obligations (including reasonable
legal fees and expenses), which Eagle may incur relating to actions or omissions
after the Effective Date involving operations at the Middlefield Office or the
assets transferred or the liabilities assumed pursuant to this Agreement.
Liberty agrees further to defend, indemnify, hold harmless (and where applicable
defend) Eagle against all claims, losses, liabilities (including reasonable
legal fees and expenses) and obligations resulting from any material breach of
any agreement or warranty made by Liberty in this Agreement or in any
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document delivered to Eagle hereunder or resulting from the material inaccuracy
of any representation made in this Agreement or in any document delivered by
Liberty to Eagle hereunder. Eagle will give Liberty written notice of a
threatened or pending injury within 30 days of becoming aware of such pending or
threatened injury (except in the case where Eagle's first notice is its receipt
of a complaint, in which such time for giving notice shall be 15 days) of its
learning of such threatened or pending injury, together with a general statement
of facts known to it regarding such threatened or pending injury. Liberty will
then have 45 days from the date it receives such notice to investigate the
threatened or pending injury to determine whether it will elect to assume the
defense of the matter involving such threatened or pending injury. If it does so
elect, Liberty will be given Eagle's full cooperation and assistance in
maintaining such defense. Unless such settlement contains a full release of
Eagle, Liberty shall not settle a claim without the prior written consent of
Eagle, which consent shall not be unreasonably withheld. Liberty shall not be
liable for any amounts in settlement of a claim or action as described above if
such settlement is effected without Liberty's prior written consent, which
consent shall not be unreasonably withheld. It is understood that the
obligations of Liberty under this paragraph shall survive the Effective Date.
1.10 PRORATA ADJUSTMENT OF CERTAIN EXPENSES RELATING TO THE MIDDLEFIELD
OFFICE. All rents, real estate taxes, Federal Deposit Insurance Corporation
("FDIC") insurance premiums (with an adjustment for related rebates or credits,
if any, applicable to such period), utility payments, service contracts, common
area expenses and similar expenses relating to the Middlefield Office shall be
prorated and documented on a settlement sheet between the Constituent Entities
as of the Effective Date. To the extent requested by Liberty, Eagle or MidConn,
as the case may be, will give notice to terminate such service contracts related
to the Middlefield Office as of the Effective Date or as soon thereafter as
permitted by such contracts as Liberty shall request. To the extent such
contracts continue after the Effective Date, Liberty shall be responsible for
payments thereunder after the Effective Date.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF EAGLE
Eagle hereby represents and warrants to Liberty as follows. For
purposes of these representations and warranties, references to Eagle with
respect to the Middlefield Office shall mean MidConn to the extent such
representations and warranties are of a time with respect to actions or
circumstances prior to the Merger.
2.01 CORPORATE ORGANIZATION AND POWERS. Eagle is a federally chartered
savings bank organized and validly existing under the laws of the United States
of America and the rules and regulations of the Office of Thrift Supervision
("OTS"). Eagle has the corporate power and authority to own its properties, to
effect the transactions contemplated hereby and carry on its business as
presently conducted.
2.02 LEASES; TITLE TO PROPERTY; ENCUMBRANCES.
(a) Eagle has good and marketable title or lease to the Branch Assets
to be transferred to Liberty pursuant to this Agreement, and in each case
subject to no mortgage, pledge, lien, security interest, conditional sale
agreement or encumbrance, which would interfere with or otherwise prevent
Liberty from having quiet enjoyment of the business to be transferred in
accordance with this Agreement.
(b) Eagle has delivered to Liberty a complete and correct copy of the
lease for the Middlefield Office. All payments required to be made by Eagle
under such lease are current. Such lease is valid and there does not exist with
respect to Eagle's obligations thereunder, or to the knowledge of Eagle (not
having made any specific investigation for this purpose), with respect to the
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obligation of the lessor thereunder, any material default or event or condition
which, after notice or lapse of time or both, would constitute a material
default thereunder and, to the knowledge of Eagle (not having made any specific
investigation for this purpose), there is no condemnation proceeding pending or
threatened which would preclude or impair the use of the Middlefield Office as
presently being used in the conduct of the business of Eagle.
(c) The Middlefield Office complies in all material respects with all
applicable zoning, building, fire and similar regulations relating to the
Middlefield Office.
2.03 NO VIOLATION. Neither the execution and delivery of this
Agreement, nor the consummation of the transactions contemplated hereby, will
violate or conflict with: (i) the charter or bylaws of Eagle; (ii) any provision
of any agreement or any other restriction of any kind to which Eagle is a party
or by which Eagle is bound under any material agreement; or (iii) any statute,
law, decree, regulation or order of any governmental authority known to Eagle,
once the governmental consents referred to in this Agreement are obtained; or
will result in a default under, or cause the acceleration of the maturity of,
any obligation or loan to which Eagle is a party.
2.04 CORPORATE AUTHORITY. The execution and delivery of this Agreement,
and the consummation of the transactions contemplated hereby, have been duly
authorized by Eagle. No further corporate authorization on the part of Eagle is
necessary to consummate these transactions.
2.05 NO LITIGATION. There is no action, suit, proceeding, inquiry or
investigation, at law or in equity, or before any court, public board or body
pending, or to the knowledge of Eagle threatened, against Eagle, wherein an
unfavorable decision, ruling or finding would materially and adversely affect
the transactions contemplated by this Agreement (including the value of the
assets being acquired and deposit liabilities being assumed hereunder) or
adversely affect the validity or enforceability of this Agreement or any
document necessary to consummate the transactions contemplated herein or any
approval, consent or permission required to be obtained by Eagle hereunder.
2.06 ADMINISTRATION OF DEPOSITS, SAFE DEPOSIT BOXES AND LOANS. Eagle
has administered the deposits, safe deposit boxes and loans at the Middlefield
Office to be transferred to Liberty in all material respects in accordance with
the customer agreements or loan forms relating thereto, copies of which have
been provided to Liberty. Eagle has conducted business at the Middlefield Office
related to such deposits, safe deposits and loans in material compliance with
all applicable law. None of the contracts for safe deposit boxes referred to at
Section 1.06(a) has a term which exceeds 12 months from the date of this
Agreement.
2.07 LIMITATION OF WARRANTIES. Except as may be expressly represented
or warranted by Eagle in this Agreement, or in any document delivered pursuant
hereto, Eagle makes no representations or warranties whatsoever with regard to
any assets being transferred to Liberty, or as to any liability or obligation
being assumed by Liberty.
2.08 EMPLOYEES. Eagle has paid all employment related taxes for the
employees at the Middlefield Office and has funded all benefit plans related to
such employees, except for taxes or funding not yet due; such taxes or funding
which are not yet due will be paid on a timely basis by Eagle through the
Effective Date.
2.09 DISCLOSURE. Neither this Agreement nor any schedule, exhibit,
certificate or other document furnished or to be furnished by Eagle on the
Effective Date contains or will contain any untrue statement of a material fact
or omits or will omit a material fact necessary in order to make the statements
contained therein not misleading.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF LIBERTY
Liberty hereby represents and warrants to Eagle the following:
3.01 CORPORATE ORGANIZATION. Liberty is a state chartered mutual
savings institution duly organized, validly existing and in good standing under
the laws of the State of Connecticut. Liberty has the corporate power and
authority to own or lease its properties, to effect the transactions
contemplated hereby and to carry on its business as presently being conducted.
Liberty is a Bank Insurance Fund member institution.
3.02 NO VIOLATION. Neither the execution and delivery of this Agreement
nor the consummation of the transactions contemplated hereby will violate or
conflict with: (i) the charter or the bylaws of Liberty; (ii) any provision of
any agreement or any other restriction of any kind to which Liberty is a party
to or by which Liberty is bound; or (iii) any statute, law, decree, regulation
or order of any governmental authority known to Liberty, once the governmental
consents referred to in this Agreement are obtained, or will result in a default
under, or cause the acceleration of the maturity of, any obligation or loan to
which Liberty is a party.
3.03 CORPORATE AUTHORITY. The execution and delivery of this Agreement,
and the consummation of the transactions contemplated hereby have been duly
authorized by Liberty. No further corporate authorization on the part of Liberty
is necessary to consummate these transactions.
3.04 NO LITIGATION. There is no action, suit, proceeding, inquiry or
investigation, at law or in equity, or before any court, public board or body
pending, or to the knowledge of Liberty threatened, against Liberty, wherein an
unfavorable decision, ruling or finding would materially and adversely affect
the transactions contemplated by this Agreement or adversely affect the validity
or enforceability of this Agreement or any document necessary to consummate the
transactions contemplated herein or any approval, consent or permission required
to be obtained by Liberty hereunder.
3.05 DISCLOSURE. Neither this Agreement nor any schedule, exhibit,
certificate or other document furnished or to be furnished by Liberty on the
Effective Date contains or will contain any untrue statement of a material fact
or omits or will omit a material fact necessary in order to make the statements
contained therein not misleading.
3.06 LIMITATION OF WARRANTIES. Except as may be expressly represented
or warranted by Liberty in this Agreement, or in any document delivered pursuant
hereto, Liberty makes no representations or warranties whatsoever with regard to
the transactions provided for in this Agreement.
ARTICLE IV
CONDUCT OF BUSINESS PENDING THE EFFECTIVE DATE
4.01 CONDUCT OF BUSINESS BY EAGLE. Pending the Effective Date, and
except as otherwise consented to by Liberty, which consent shall not be
unreasonably withheld, after the Merger Eagle will carry on the business of the
Middlefield Office substantially in the same manner as on the date hereof, and
Eagle will not, with regard to the Middlefield Office, engage in activities or
transactions which would be outside of the ordinary course of the business of
the Middlefield Office as conducted as of the date hereof, except for activities
or transactions contemplated by this Agreement in connection with the Merger.
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4.02. BACK-UP WITHHOLDING; INTEREST REPORTING ON FORM 1099.
(a) Any amounts required by any governmental agencies to be withheld
from any of the Deposits (the "Withholding Obligations") will be handled as
follows:
(i) Any Withholding Obligations required to be remitted
to the appropriate governmental agency prior to the
effective Date will be withheld and remitted by
Eagle.
(ii) Any Withholding Obligations required to be remitted
to the appropriate governmental agency on or after
the Effective Date will be remitted by Liberty. At
the Closing, Eagle will remit to Liberty all sums
withheld by Eagle pursuant to Withholding Obligations
which funds are or may be required to be remitted to
governmental agencies on or after the Effective Date.
(b) Eagle shall report from January 1, 1997 through the Effective Date
and Liberty shall report from the day after the Effective Date through the end
of the calendar year all interest credited to, interest withheld from and early
withdrawal penalties charged to the Deposits, and all interest paid by borrowers
on the related loans. Said reports shall be made to the holders of these
accounts and to the applicable federal and state regulatory agencies. If as a
result of the transfer of books and records required hereunder, Eagle is unable
to report interest as contemplated hereby, Eagle and Liberty will cooperate to
arrive at a mutually acceptable alternative arrangement for the reporting of
interest.
ARTICLE V
OBLIGATIONS OF THE CONSTITUENT ENTITIES PRIOR TO
AND AFTER EFFECTIVE DATE
5.01 FULL ACCESS. To the extent possible in cooperation with MidConn,
Eagle shall afford to the officers and authorized representatives of Liberty
access to properties, books and records pertaining to the Middlefield Office in
order that Liberty may have full opportunity to make such reasonable
investigations at such reasonable times as it shall desire, of the affairs of
Eagle or MidConn, as the case may be, relating to the Middlefield Office, and
the officers of Eagle will furnish Liberty with such additional financial and
operating data and other information as to its business and properties at the
Middlefield Office as Liberty shall from time to time reasonably request and as
shall be available, including, without limitation, information required for
inclusion in all governmental applications necessary to effect this transaction.
If Eagle incurs any reasonable expenses in providing such additional
information, the expenses will be reimbursed by Liberty. Eagle shall notify
Liberty in advance of such expenses or estimates thereof. Nothing in this
Section 5.01 shall be deemed to require Eagle to breach any obligation of
confidentiality.
5.02 REGULATORY REQUIREMENTS APPLICABLE TO EAGLE. Eagle shall prepare
and file, with the assistance of Liberty, as soon as practicable, but in no
event later than 10 business days following the date of this Agreement, all
applications and/or notice filings required to be submitted by Eagle to the OTS
and any other appropriate regulatory authority in connection with the transfer
of the Middlefield Office to Liberty. Eagle agrees to use its best reasonable
efforts to obtain all regulatory approvals required for such transfer in a
diligent manner and on a priority basis. Eagle agrees to publish, on a timely
basis, all public notices related to such regulatory applications or filings by
Eagle.
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5.03 REGULATORY REQUIREMENTS APPLICABLE TO LIBERTY. Liberty shall
prepare and file, with the assistance of Eagle, as soon as practicable, but in
no event later than 10 business days following the date of this Agreement, all
applications and/or notices filings required to be submitted by Liberty to the
Commissioner of Banking of the State of Connecticut (the "Commissioner"), the
FDIC and any other appropriate regulatory authority in connection with the
transaction contemplated in this Agreement. Liberty agrees to use its best
reasonable efforts to obtain all regulatory approvals required for such
transactions in a diligent manner and on a priority basis. Liberty agrees to
publish, on a timely basis, all public notices related to such regulatory
applications or filings by Liberty.
5.04 NO SOLICITATIONS. Prior to the close of business on the Effective
Date, Liberty agrees not to solicit customers of the Middlefield Office through
advertising specifically referencing or targeted at such customers nor transact
its business in a way which would specifically induce such customers to close
deposit accounts at the Middlefield Office and open accounts directly with
Liberty or otherwise result in the transfer of all or a portion of existing
deposits from the Middlefield Office to Liberty. Prior to the close of business
on the Effective Date, Liberty also agrees not to solicit for employment or
service any of the employees of the Middlefield Office. Only to the extent
permissible by MidConn, these limitations shall not preclude Liberty prior to
the Effective Date, upon reasonable notice to, and in cooperation with Eagle, as
to actions involving Eagle's employees or customers, (i) from meeting with
employees of the Middlefield Office in connection with their employment by
Liberty after the Effective Date, or (ii) from general advertising for employees
where the advertisements are not specifically directed at Eagle's or MidConn's
employees at the Middlefield Office. If the Conversion Date will be less than 35
days after the Effective Date, Liberty (with Eagle's prior approval, which shall
not be unreasonably withheld) may contact deposit customers at the Middlefield
Office to the extent necessary to provide them with appropriate legal notice of
any check clearing or other deposit policies of Liberty that are different from
Eagle's or MidConn's, as the case may be, so as to enable Liberty to implement
its policies following the Conversion Date.
5.05 FURTHER ASSURANCE. Both parties hereby agree to execute and
deliver such instruments and take such other actions as the other party may
reasonably require in order to carry out the intent of this Agreement, and Eagle
agrees, at its expense, to provide such bills of sale, acknowledgments and other
instruments or conveyance and transfer as, in the reasonable judgment of
Liberty, shall be necessary and appropriate to vest in Liberty legal and
equitable title to the assets of Eagle being sold hereunder, free and clear of
all liens and encumbrances. Liberty shall be responsible for its costs of
examining title, surveys, recording of documents, etc.
5.06 RETENTION OF EMPLOYEES. Eagle intends to offer at-will employment
to all branch related employees at the Middlefield Office in good standing as of
the Effective Date who are not offered positions by Liberty. Nothing herein
shall be construed as a guarantee or contract of employment.
5.07 PRESS RELEASES AND OTHER PUBLIC OR CUSTOMER COMMUNICATIONS.
Neither party hereto will issue, release or make any statement or communication
in connection with or related to the transactions contemplated hereby which will
or is likely to become public or available to the customers of the Middlefield
Office, except with the written approval of the other party hereto.
5.08 COOPERATION AS TO COMPUTER CONVERSION. Liberty and Eagle shall
cooperate with each other and their respective data processing system servicers
so as to achieve a conversion of all computerized deposit account information
relating to the Middlefield Office to Liberty's servicer on the Effective Date.
All direct conversion costs relating to such conversion shall be paid by Liberty
as to its servicer and by Eagle as to its servicer.
10
ARTICLE VI
CONDITIONS TO LIBERTY'S OBLIGATIONS
Each and every obligation of Liberty under this Agreement to be
performed on or before the Effective Date shall be subject to the satisfaction,
on or before the Effective Date, of the following conditions:
6.01 REPRESENTATIONS AND WARRANTIES TRUE: OBLIGATIONS PERFORMED
(a) The representations and warranties made by Eagle in this Agreement
or in document delivered pursuant hereto shall be true at and as of the
Effective Date as though such representations and warranties were made at and as
of such time, except for any changes permitted by the terms hereof or consented
to by Liberty.
(b) Eagle shall have performed and complied with all obligations and
agreements required by this Agreement to be performed or complied with by it
prior to or on the Effective Date.
(c) Eagle shall have delivered to Liberty a certificate of Eagle's
Chief Executive Officer or Chief Financial Officer, dated the Effective Date,
certifying to the fulfillment of the foregoing conditions.
ARTICLE VII
CONDITIONS TO EAGLE'S OBLIGATIONS
Each and every obligation of Eagle under this Agreement to be performed
on or before the Effective Date shall be subject to the satisfaction, on or
before the Effective Date, of the following conditions:
7.01 REPRESENTATIONS AND WARRANTIES TRUE: OBLIGATIONS PERFORMED
(a) The representations and warranties made by Liberty in this
Agreement or in documents delivered pursuant hereto shall be true at and as of
the Effective Date as though such representations and warranties were made at
and as of such time, except for any changes permitted by the terms hereof or
consented to by Eagle.
(b) Liberty shall have performed and complied with all obligations and
agreements required by this Agreement to be performed or complied with by it
prior to or on the Effective Date.
(c) Liberty shall have delivered to Eagle a certificate of Liberty's
Chief Executive Officer or Treasurer, dated the Effective Date, certifying to
the fulfillment of the foregoing conditions.
7.02 ACQUISITION OF MIDCONN BANKING OFFICES. Eagle shall have
consummated the Merger.
ARTICLE VIII
CONDITIONS TO EAGLE'S AND LIBERTY'S OBLIGATIONS
Each and every obligation of the Constituent Entities under this
Agreement to be performed on or before the Effective Date shall be subject to
the satisfaction, on or before the Effective Date, of the following conditions:
8.01 APPROVAL OF REGULATORY AUTHORITIES. Prior to the Effective Date,
all required regulatory approvals or notice filings shall have been obtained or
made by Liberty or Eagle for the transactions provided for in this Agreement and
any regulatory waiting periods shall have expired.
11
8.02 CONSENT TO ASSIGNMENT OF LEASE. The landlord under the real estate
lease to be assigned hereunder shall have consented, on terms reasonably
satisfactory to Eagle and Liberty, to Eagle's or MidConn's, as the case may be,
assignment of such lease to Liberty.
8.03 LITIGATION. There shall be no litigation pending on the Effective
Date seeking to prohibit consummation of the transactions provided for in this
Agreement.
ARTICLE IX
TERMINATION
9.01 METHODS OF TERMINATION. This Agreement may be terminated at any
time, but not later than the Effective Date:
(a) By mutual written agreement of the Board of Directors of Eagle and
Board of Directors of Liberty; or
(b) By the Board of Directors of Liberty if any of the conditions
provided for in Article VI of this Agreement shall not have been met or waived
in writing by Liberty; or
(c) By the Board of Directors of Eagle if any of the conditions
provided for in Article VII of this Agreement shall not have been met or waived
in writing by Eagle; or
(d) By the Board of Directors of Eagle or the Board of Directors of
Liberty if any of the conditions provided for in Article VIII shall not have
been met; or
(e) By the Board of Directors of Eagle or the Board of Directors of
Liberty if the Effective Date has not occurred on or before September 30, 1997,
unless as a result of a breach of this Agreement by the party seeking to
terminate.
9.02 PROCEDURE UPON TERMINATION. In the event of termination pursuant
to Section 9.01 hereof, written notice thereof shall be given to the other
party, and this Agreement shall terminate immediately upon receipt of such
notice, unless an extension is consented to by the party or parties having the
right to terminate. If this Agreement is terminated as provided herein:
(a) Each party will redeliver all documents, work papers and other
materials of the party relating to this transaction, whether so obtained before
or after the execution hereof, to the party furnishing the same; and
(b) All information received by either party hereto with respect to the
business of the other party (other than information which is a matter of public
knowledge or which has heretofore been or is hereafter published in any
publication for public distribution or filed as public information with any
governmental authority) shall not at any time be used for business advantage by
such party or disclosed by such party to third persons to the detriment of the
party furnishing such information or if otherwise prohibited by state or federal
law.
(c) Nothing contained in this Article IX shall be deemed to excuse
either party for a breach of any of its obligations or agreements undertaken or
made in this Agreement.
12
ARTICLE X
MISCELLANEOUS PROVISIONS
10.01 AMENDMENT AND MODIFICATION. The parties hereto, by mutual consent
of their respective duly authorized officers, may amend, modify and supplement
this Agreement in such manner as may be agreed upon by them in writing.
10.02 ASSIGNMENT. This Agreement and all of the provisions hereof shall
be binding upon, and inure to the benefit of, the parties hereto and their
respective successors and permitted assigns, but neither this Agreement nor any
of the rights, interests or obligations hereunder shall be assigned, until after
the Effective Date, by either of the parties hereto without the prior written
consent of the other.
10.03 COUNTERPARTS. This Agreement may be executed simultaneously in
two or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
10.04 HEADINGS. The headings of the Sections and Articles of this
Agreement are inserted for convenience only and shall not constitute a part
hereof.
10.05 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. Unless and except as
specifically provided otherwise herein, the respective representations and
warranties of the parties hereto contained in this Agreement or in documents
delivered pursuant hereto shall not survive after the Effective Date.
10.06 SPECIFIC PERFORMANCE. The parties hereto acknowledge that
monetary damages could not adequately compensate either party hereto in the
event of a breach of this Agreement by the other, that the former party would
suffer irreparable harm in the event of such breach and that the former party
shall have, in addition to any other rights or remedies it may have at law or in
equity, specific performance and injunctive relief as a remedy for the
enforcement hereof.
10.07 PAYMENT OF EXPENSES. Each party herein shall pay for its own
expenses and costs in connection with the carrying out of this Agreement except
as stated otherwise herein. All filing fees relating to the approvals of the
appropriate regulatory authorities shall be paid by the party responsible for
making the filing. All costs for notices to depositors of the assumption of
deposit liabilities provided for in this Agreement shall be paid by Liberty.
10.08 GOVERNING LAW. This Agreement shall be governed by the laws of
the State of Connecticut except to the extent federal law controls.
10.09 COOPERATION. Each party shall use its best reasonable efforts to
cooperate with the other so as to cause the transactions provided for in this
Agreement to be consummated in accordance with the terms hereof, including the
obtaining of all regulatory, lease assignment and other approvals relating to
such consummation.
10.10 ADDRESSES FOR NOTICE, ETC. All notices, requests, demands and
other communications provided for hereunder and under the related documents
shall be in writing and mailed (by registered or certified mail) or delivered to
the applicable party at the addresses indicated below:
If to Eagle: Xxxxxx X. Xxxxxxx
Chairman of the Board, President
and Chief Executive Officer
Eagle Bank
000 Xxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxx 00000
13
With a copy to: Xxxxxx X. Xxxxx, Esq.
Xxxxx & Xxxxxxx L.L.P.
000 Xxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
If to Liberty: Xxxxxxxx X. Xxxxxxx
President and Chief Executive Officer
Liberty Bank
000 Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000
With a copy to: X. X. Xxxxxxxx, Esq.
Cranmore, XxxxXxxxxx & Xxxxxx
00 Xxxxxxxxxxxx Xxxxxx
Xxxxxxxx, XX. 00000
or, as to each party, at such other address as shall be designated by such party
in a written notice to each other party complying as to delivery with the terms
of this Section.
14
IN WITNESS WHEREOF, the Constituent Entities hereto have caused this
Agreement to be duly executed by their duly authorized officers and their
corporate seals to be affixed as of the date first written above.
EAGLE BANK
ATTEST: By: /S/ Xxxxxx X. Xxxxxxx
------------------------------------
Xxxxxx X. Xxxxxxx
/S/ Xxxx X. Xxxx Chairman of the Board, President and
-------------------------------- Chief Executive Officer
Xxxx X. Xxxx
Executive Vice President, Chief
Financial Officer and Secretary
LIBERTY BANK
ATTEST: By: /S/ Xxxxxxxx X. Xxxxxxx
-------------------------------------
Xxxxxxxx X. Xxxxxxx
/S/ Xxxxxxx X. Xxxxxx President and Chief Executive Officer
---------------------------------
Name: Xxxxxxx X. Xxxxxx
Secretary
15
Exhibit A
---------
MIDDLEFIELD BRANCH
FURNITURE, FIXTURE AND EQUIPMENT SCHEDULE
1. All leasehold improvements including, but not limited to, renovations,
carpeting, blinds, drapes, lighting, teller counters, electrical and
mechanical systems, and equipment installation expenses.
2. Vault, including safe deposit boxes, teller lockers, and cash drawers.
3. Mosler premise, holdup, and vault protection security equipment.
4. ATT phone system, including desk sets.
5. 3 teller stations including pedestals, lockers, and keys.
6. 1 check cancellor.
7. 1 secretarial desk.
8. 1 secretarial chair.
9. 1 executive desk
10. 4 side chairs with arms.
11. 1 executive chair.
12. 2 side chairs without arms.
13. 1 conference table with 12 chairs.
14. 1 illuminated sign, exterior.
15. 1 Minolta copier, model 350
16. 2 filing cabinets - 3 drawer.
17. 3 teller chairs.
18. 1 chair rack/coat hanger.
19. 1 SR desk top check encoder.
20. 1 Canon microfilmer, model 550.
21. 1 Synergistics ATM card access system.
22. 1 ATM sign.
23. 1 Diebold ATM.
24. 1 Destroyit office paper shredder.
25. 1 glass/fabric panel system divider.
26. 42 metal folding chairs.
27. 2 TA electric typewriters.
28. 1 Xxxxxx Coin Counter.
29. 1 Xxxxxx currency counter.
30. 1 radio and speaker system.
31. 1 printer stand.
32. 1 Canon model 230 fax machine.
33. 1 60" folding table
34. 1 kitchenette set.
Exhibit B
---------
DEPOSITS IN THE MIDDLEFIELD OFFICE AS OF MARCH 31, 1997
COUNT BALANCE
Passbook 590.00 2,799,620.98
Statement Savings 65.00 211,005.91
Money Xxxxxx XXX 5.00 10,357.33
Money Minder Stmt 1.00 593.47
Money Minder 21.00 343,609.50
6 Month XXX 1.00 17,894.81
1 Year XXX 8.00 80,950.32
30 Month XXX 4.00 34,221.04
5 Yr XXX 4.00 12,944.57
1 Yr CD 36.00 622,335.07
18 Month CD 21.00 366,592.00
2 Yr CD 6.00 99,177.58
30 Month CD 15.00 196,119.06
3 Yr CD 3.00 52,014.71
5 Year CD 21.00 387,956.03
5 Yr CD 18.00 510,096.58
60 Day CD 2.00 66,528.11
91 Day CD 6.00 96,060.89
6 Month CD 65.00 1,143,499.22
1 Yr CD 109.00 2,005,763.45
1 Yr Classic 50 Gold 3.00 100,000.00
30 Month Trade-up CD 1.00 4,408.96
Value Checking 67.00 50,792.99
NOW 13.00 133,399.59
Regular Checking 69.00 150,550.08
MidConn Freeway Checking 98.00 169,544.76
Commercial Checking Free 2.00 70.87
Commercial Checking 12.00 112,934.14
Comm'l Value Checking 5.00 4,282.67
Classic Checking 79.00 132,868.29
Classic Gold Checking 63.00 77,854.31
Classic 50 Checking 21.00 61,702.43
Classic 50 Gold 23.00 24,765.90
----------- --------------
1,457.00 10,080,515.62
EXHIBIT C
FORM OF XXXX OF SALE
This XXXX OF SALE is made and entered into as of _________, 1997 by
EAGLE BANK, a federal savings bank ("Eagle"), to LIBERTY BANK, a
Connecticut-chartered savings bank ("Liberty"). Capitalized terms used herein,
which are defined in the Purchase and Assumption Agreement, entered into as of
April __, 1997, by and between Eagle and Liberty (the "Purchase and Assumption
Agreement"), shall have the same meanings herein as therein unless defined
herein or the context otherwise requires.
WITNESSETH:
WHEREAS, pursuant to the Purchase and Assumption Agreement, among other
matters, Eagle has agreed to transfer to Liberty the Branch Assets;
NOW, THEREFORE, for good and valuable consideration paid by Liberty to
Eagle at or before the execution of this Xxxx of Sale, the receipt and
sufficiency of which are hereby acknowledged, Eagle by this Xxxx of Sale does
hereby convey, grant, bargain, sell, transfer, set over, assign, alienate,
remise, release, deliver and confirm unto Liberty, its successors and assigns,
forever, as of the close of business on the date hereof, all of Eagle's right,
title and interest in and to the Branch Assets listed on Exhibit A to the
Purchase and Assumption Agreement.
Eagle further covenants and agrees as follows:
a. From time to time, Eagle, its successors and assigns, shall execute
and deliver all such further bills of sale, assignments or other instruments of
conveyance and transfer as Liberty, its successors or assigns, may reasonably
request more effectively to transfer to and vest in Liberty all of Eagle's
interest in the Branch Assets.
b. This Xxxx of Sale is given pursuant to the provisions of the
Purchase and Assumption Agreement, and, except as herein otherwise provided, the
transfer of the Branch Assets hereunder is made subject to the terms and
provisions of the Purchase and Assumption Agreement.
IN WITNESS WHEREOF, Eagle has duly executed and delivered this Xxxx of
Sale as of the day and year first above written.
EAGLE BANK
By: ----------------------------------------
Xxxxxx X. Xxxxxxx
Chairman of the Board, President and
Chief Executive Officer
EXHIBIT D
FORM OF ASSIGNMENT OF LEASE AND ASSUMPTION
KNOW THAT EAGLE BANK, having its principal office in Bristol,
Connecticut ("Assignor"), in consideration of One Dollar ($1.00) and other good
and valuable consideration paid by LIBERTY BANK, having its principal office in
Middletown, Connecticut ("Assignee"), hereby assigns unto Assignee all of
Assignor's right, title and interest as tenant under the lease described below
(the "Lease"):
[INSERT DESCRIPTION OF LEASE FOR MIDDLEFIELD OFFICE .]
TO HAVE AND TO HOLD the same unto Assignee, its successors and assigns
from and after the close of business of the day prior to the date hereof (the
"Effective Time"), subject to the terms, covenants, conditions and provisions
set forth in the Lease.
ASSIGNEE hereby assumes, effective as of the Effective Time, the
performance of all terms, covenants, conditions and obligations of the Lease on
the part of Assignor to be performed under the Lease.
This Agreement is being delivered pursuant to the Purchase and
Assumption Agreement, entered into as of April ___, 1997, by and between
Assignor and Assignee, and is subject to the terms, conditions, representations
and warranties contained therein.
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment
of Lease and Assumption as of the _____ day of ________________, 1997.
EAGLE BANK
WITNESSES:
By: --------------------------------
------------------------------- Xxxxxx X. Xxxxxxx
Name: Chairman of the Board, President
-------------------------- and Chief Executive Officer
Title:
-------------------------
LIBERTY BANK
By:
------------------------------- --------------------------------
Name: Xxxxxxxx X. Xxxxxxx
-------------------------- President and Chief Executive Officer
Title:
-------------------------
STATE OF CONNECTICUT )
) S.S.
COUNTY OF ____________ )
On this ____ day of ________________, 1997, before me, the undersigned
officer, personally appeared Xxxxxxxx X. Xxxxxxx who acknowledged himself to be
the President and Chief Executive Officer of Liberty Bank, a Connecticut savings
bank, and that he as such President and Chief Executive Officer being authorized
to do so, executed the foregoing instrument for the purposes therein contained
and as the free act and deed of said corporation, by signing the name of the
corporation by himself as President and Chief Executive Officer.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
-------------------------------------
Notary Public/Commissioner of the
Superior Court
STATE OF CONNECTICUT )
) S.S.
COUNTY OF ____________ )
On this ____ day of ________________, 1997, before me, the undersigned
officer, personally appeared Xxxxxx X. Xxxxxxx who acknowledged himself to be
the Chairman of the Board, President and Chief Executive Officer of Eagle Bank,
a federal savings bank, and that he as such Chairman of the Board, President and
Chief Executive Officer being authorized to do so, executed the foregoing
instrument for the purposes therein contained and as the free act and deed of
said corporation, by signing the name of the corporation by himself as Chairman
of the Board, President and Chief Executive Officer.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
-------------------------------------
Notary Public/Commissioner of the
Superior Court
EXHIBIT E
FORM OF LANDLORD CONSENT
THIS LANDLORD CONSENT dated as of the ____ day of ________________
1997, of _____________________________ ("Landlord"), in favor of EAGLE BANK,
having its principal office at 000 Xxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxx 00000
("Eagle") and LIBERTY BANK, having its principal office at 000 Xxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxxxxx 00000 ("Liberty").
WHEREAS, Eagle and Liberty have executed a Purchase and Assumption
Agreement, entered into as of April __, 1997, pursuant to which Eagle is to sell
and assign, and Liberty is to purchase and assume certain assets and liabilities
associated with the branch banking office of [Eagle]/[MidConn Bank] in
Middlefield, Connecticut;
WHEREAS, Landlord is the owner of certain premises and a party to a
certain lease, as lessor, a true and complete copy (including any amendments,
addenda, modifications or supplements thereto) of which is attached at Annex I
attached hereto (the "Lease");
WHEREAS, Eagle desires to assign its entire interest (including,
without limitation, renewal rights, if any) in the Lease to Liberty; and
WHEREAS, Eagle has requested Landlord's consent to said assignment and
to Liberty's use of said premises as a branch banking office and for all other
purposes authorized under the Lease for the balance of the term of the Lease and
Landlord desires to consent to the same for all purposes required under the
Lease.
1. Subject to the limitations set forth below, Landlord hereby consents
to the assignment of the Lease by Eagle to Liberty and to Liberty's use of said
premises as a branch banking office and for all other purposes authorized under
the Lease for the balance of the term of the Lease; provided that Liberty shall
agree to assume all of the obligations of Eagle arising under the Lease from and
after the effective date of the assignment.
2. Except for the aforementioned assignment by Eagle to Liberty,
nothing contained herein shall constitute a waiver of the obligation, if any, of
the holder of the leasehold interest created under the Lease to obtain
Landlord's consent to future assignments of the Lease or a sublease of the
premises demised thereunder.
3. Nothing contained herein shall be construed to obligate Eagle to
assign the Lease to Liberty, it being understood and acknowledged by Landlord
that the execution and delivery of this Landlord Consent is in anticipation of
said assignment on or prior to September 30, 1997 pursuant to the
above-mentioned Purchase and Assumption Agreement, which may or may not be
affected. If said assignment is effected, Eagle or Liberty shall promptly
provide to Landlord a fully executed counterpart of said assignment and notify
Landlord of the effective date thereof.
4. Landlord acknowledges and certifies that, except for the conditions
contained herein, all conditions set forth in the Lease, if any, to the
effectiveness of the aforementioned assignment or to the consent of Landlord
contained herein have been either waived by Landlord or satisfied.
5. Landlord acknowledges and certifies as of the date hereof that (i)
all payments required to be made to Landlord under the Lease are current; (ii)
to Landlord's knowledge,
[Eagle][MidConn Bank] is not in default under the Lease, (iii) Landlord is the
owner of the premises described in the Lease, and (iv) Landlord has authority to
execute this Landlord Consent.
IN WITNESS WHEREOF, the undersigned has caused this instrument to be
executed by its duly authorized representative as of the day and year first
above-written.
[Landlord]
By:
-----------------------------
Name:
----------------------------
Title:
---------------------------
Exhibit F
---------
SUBORDINATION, ATTORNMENT AND NON-DISTURBANCE AGREEMENT
-------------------------------------------------------
THIS AGREEMENT, is made as of this ___ day of April, 1997 by and
between EAGLE BANK, a Connecticut chartered savings bank successor in interest
to Berlin Savings Bank, having its principal place of business located at 000
Xxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxx 00000 (hereinafter referred to as
"Mortgagee"), and LIBERTY BANK, a Connecticut chartered savings bank having its
principal place of business located at 000 Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxx
00000 (hereinafter referred to as "Tenant").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Mortgagee, as successor in interest to Berlin Savings Bank now
holds a first mortgage which was recorded in the Middlefield, Connecticut Land
Records in Volume 94, Page 688 (hereinafter referred to as the "Mortgage"), on
the real property and improvements thereon located in the Town of Middlefield,
County of Middlesex and State of Connecticut and more particularly described in
the Mortgage (said property and improvements are hereinafter collectively
referred to as the "Property"); and
WHEREAS, Xxxxxxx Xxxxxx ("Landlord") and MidConn Bank (the "Original
Tenant") predecessor in interest to Eagle Bank ("Successor Tenant") entered into
a certain lease agreement dated as of August 30, 1994 (the "Lease") whereby
Original Tenant leased from Landlord the Property which is more particularly
described in the Lease (said leased premises are hereinafter referred to as the
"Leased Premises"); and
WHEREAS, Tenant and Mortgagee desire to confirm their understanding and
agreement respecting the Lease and the Mortgage;
WHEREAS, The Original Tenant assigned its interest in the Lease to the
Successor Tenant by operation of law pursuant to the terms of a Purchase and
Assumption Agreement dated as of ____________________, 199__;
WHEREAS, Successor Tenant assigned its interest in the Lease and the
Leased Premises to Tenant pursuant to the terms of an Assignment and Assumption
of Lease dated as of April ___, 1997 which was recorded in the Town of
Middlefield, Connecticut Land Records in Volume _________, Page _______;
WHEREAS, Mortgagee has consented to the Assignment of Lease by
Successor Tenant to Tenant.
-1-
NOW, THEREFORE, Tenant and Mortgage hereby agree as follows:
1. SUBORDINATION. At all times the Lease shall be subject and
subordinate in each and every respect to the Mortgage and to any and all
modifications, renewals, increases, extensions and consolidations of the
Mortgage.
2. NON-DISTURBANCE. So long as Tenant is not in default (beyond any
period given Tenant by the terms of the Lease to cure such default) in the
payment of rent or additional rent or in any other material obligation imposed
upon Tenant by the terms of the Lease, Tenant's possession of the Leased
Premises and Tenant's other rights and privileges under the Lease, or any
extensions or renewals thereof which may occur in accordance with any option
contained in the Lease, shall not be diminished, disturbed, or interfered with
by Mortgagee and Mortgagee will not join Tenant as a party defendant in any
action or proceeding to foreclose the Mortgage.
3. LEASE ALTERATION. Tenant agrees that it will not, without the prior
written consent of the Mortgagee, modify the Lease. Such consent of Mortgagee
shall not be unreasonably withheld, continued or delayed.
4. FORECLOSURE; ATTORNMENT. If the interest of Landlord shall be
acquired by Mortgagee by reason of foreclosure of said Mortgage or other
proceedings brought to enforce the rights of Mortgagee, by deed in lieu of
foreclosure for or by any other method, and Mortgagee succeeds to the interest
of Landlord under the Lease, Tenant shall attorn to Mortgagee and its landlord,
said attornment to be effective and self-operative without the execution of any
other instruments on the part of any party hereto, immediately upon Mortgagee's
succeeding to the interest of Landlord under the Lease and the Lease shall
continue in accordance with its terms between Tenant and Mortgagee as Landlord;
provided, however, that:
(a) Mortgagee shall not be personally liable under the Lease and
Mortgagee's liability under the Lease shall be limited to the interest of
Mortgagee in the Property;
(b) Mortgagee shall not be liable for any act or omission of any
prior landlord (including Landlord);
(c) Mortgagee shall not be subject to any offsets or defenses which
Tenant might have against any prior landlord (including Landlord); and
(d) Mortgagee shall not be bound by any amendment or modification
of the Lease made without its consent.
5. All notices, consents and other communications pursuant to the
provisions of this Agreement shall be in writing and shall be sent by registered
or certified mail, return receipt requested, or by a nationally recognized
commercial overnight carrier that provides a receipt, such
-2-
as Federal Express or Airborne, and shall be deemed given when postmarked and
addressed as follows:
If to Mortgagee: Eagle Bank
000 Xxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: President and Chief Executive Officer
With a Copy To: Xxxxx & Xxxxxxx, L.L.P.
000 Xxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
If to Tenant: Liberty Bank
000 Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: President and Chief Executive Officer
With a Copy To: Cranmore, XxxxXxxxxx & Xxxxxx
00 Xxxxxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000-0000
Attn: Xxxxx X. Xxxx, Esq.
If to Landlord: Xx. Xxxxxxx Xxxxxx
---------------------------
---------------------------
---------------------------
With a Copy To: ---------------------------
---------------------------
---------------------------
---------------------------
or to such other address as shall from time to time have been designated by
written notice by such party to the other parties as herein provided.
6. NOTICE OF DEFAULT. Tenant agrees to give prompt written notice to
Mortgagee of any default of the Landlord in the obligations of the Landlord
under the Lease; if such default is of such nature as to give the Tenant a right
to terminate the Lease, reduce rent or credit or offset any amounts against
future rents, and Mortgagee shall have a reasonable time thereafter to correct
any such default; but nothing herein contained shall be deemed or construed to
impose any obligations on the Mortgagee to correct or cure any such condition or
default.
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7. BINDING EFFECT. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective successors and assigns, it
being expressly understood that all references herein to the Mortgagee shall be
deemed to include not only Mortgagee, but also its successor and assigns.
8. ENTIRE AGREEMENT. This Agreement contains the entire agreement
between the parties respecting the subject matter contained herein and
supercedes all prior or contemporaneous, written or oral agreements and
negotiations between the parties.
9. MODIFICATION. No modification, amendment, or termination of this
Agreement shall be effective unless in writing and signed by the parties hereto
or their respective successors in interest.
10. GENDER AND NUMBER. Whenever in this Agreement the content so
requires, the general used includes the masculine, feminine, and/or neuter and
the number used includes the singular and/or plural.
11. PARAGRAPH HEADINGS. The heading of the paragraphs of this Agreement
are for reference purposes only and shall not be construed or deemed to define
or limit any of the terms and provisions contained thereunder.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first written above.
WITNESSES: MORTGAGEE;
EAGLE BANK
---------------------------------------
Name: By:
--------------------------------
--------------------------------------- Its:
Name: Duly Authorized
TENANT:
LIBERTY BANK
---------------------------------------
Name: By:
--------------------------------
--------------------------------------- Its:
Name: Duly Authorized
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STATE OF CONNECTICUT )
) SS:
COUNTY OF )
The foregoing instrument was acknowledged before me this ____ day of
April, 1997 by ________________________, __________________________ of Eagle
Bank, a Connecticut chartered Savings Bank, on behalf of the Bank.
----------------------------------------------
Commission of the Superior Court/Notary Public
My Commission expires
STATE OF CONNECTICUT )
) SS: Middletown
COUNTY OF MIDDLESEX )
The foregoing instrument was acknowledged before me this ____ day of
April, 1997 by ________________________, __________________________ of Liberty
Bank, a Connecticut chartered Savings Bank, on behalf of the Bank.
----------------------------------------------
Commission of the Superior Court/Notary Public
My Commission expires
-5-
EXHIBIT G
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
This ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Agreement") is made and
entered into as of April ____, 1997, by and between EAGLE BANK, a federal
savings bank ("Eagle"), and LIBERTY BANK, a Connecticut-chartered savings bank
("Liberty"). Capitalized terms used herein, which are defined in the Purchase
and Assumption Agreement, entered into as of April __, 1997, by and between
Eagle and Liberty (the "Purchase and Assumption Agreement"), shall have the same
meanings herein as therein, unless defined herein or the context otherwise
requires.
WITNESSETH:
WHEREAS, pursuant to the Purchase and Assumption Agreement, among other
matters, Eagle has agreed to assign, and Liberty has agreed to assume, the
Deposits, the Loans and the Safe Deposit Agreements (as such terms are defined
below);
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Eagle hereby fully and completely assigns, and Liberty hereby fully
and completely assumes, liability for the payment and performance of all
Deposits, as defined in the Purchase and Assumption Agreement.
2. Eagle hereby sells, assigns, conveys, transfers and delivers, and
Liberty assumes, without warranty or representation, express or implied, or
recourse to, Eagle, except as provided in the Purchase and Assumption Agreement:
(a) the loans described in clauses (i) and (ii) of Section 1.04(a) of the
Purchase and Assumption Agreement outstanding at the close of business on the
date hereof, attributed on the records of Eagle to the Middlefield Office;
(collectively, the "Loans"); (b) the safe deposit agreements, between Eagle (or
MidConn Bank, as applicable) and its safe deposit box customers, for the safe
deposit boxes at the Middlefield Office in effect at the close of business on
the date hereof (collectively, the "Safe Deposit Agreements"); and (c) all
records and documents described in Section 1.05(d) of the Purchase and
Assumption Agreement; in each case, together with all payments due and to become
due and all documents executed in connection therewith and all rights, powers,
obligations and remedies of Eagle connected to the interests transferred
hereunder.
3. Eagle hereby (a) resigns as the trustee or custodian of each
individual retirement account ("XXX") deposit liability which is part of the
Deposits or Xxxxx Plan deposit liability which is part of the Deposits, in each
case of which it is the trustee or custodian, and (b) to the extent permitted by
the documentation governing each such XXX or Xxxxx Plan, appoints Liberty as
successor trustee or custodian of each such XXX or Xxxxx Plan, and Liberty
hereby accepts each such trusteeship or custodianship and assumes all fiduciary
obligations with respect thereto.
4. All terms and provisions of this Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective permitted
transferees, successors and assigns.
5. This Agreement is given pursuant to Section 1.07 of the Purchase and
Assumption Agreement and, except as herein otherwise provided, the assignment
and assumption of any of the
Deposit Liabilities, Loans and Safe Deposit Agreements hereunder are made
subject to the terms and provisions of the Purchase and Assumption Agreement.
6. All of the transactions provided for herein shall be effective as of
the close of business on the date hereof.
7. This Agreement is made and entered into in the State of Connecticut
and the laws of that jurisdiction shall govern the validity and interpretation
hereof and the performance of the parties hereto of their respective duties and
obligations hereunder.
IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Agreement as of the day and year first above written.
EAGLE BANK
By:
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Xxxxxx X. Xxxxxxx
Chairman of the Board, President and
Chief Executive Officer
LIBERTY BANK
By:
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Xxxxxxxx X. Xxxxxxx
President and Chief Executive Officer
