Exhibit 10.2
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ASSIGNMENT, ASSUMPTION, CONSENT AND AMENDMENT AGREEMENT
This Assignment, Assumption, Consent and Amendment Agreement
("Assignment"), dated as of November 6, 2001, is by and among SunGard
Financial Systems Inc. ("SunGard"), Commercial Bank of New York ("Bank"), and
CBNY Investment Services Corp. ("CBNY Corp.").
Background
A. SunGard and Bank are parties to the Remote Processing Agreement
dated December 6, 2000 ("Processing Agreement"). Pursuant to the
Processing Agreement, CBNY Corp., a wholly owned subsidiary of Bank,
is considered to be the customer under the Agreement, solely for so
long as CBNY Corp. is a wholly owned subsidiary of Bank.
B. On or about November 9, 2001, Bank will be purchased by North Fork
Bank and CBNY Corp. will be spun off as a stand alone company, such
that CBNY Corp. will no longer be a wholly owned subsidiary of Bank
or its successor.
C. Bank and CBNY Corp. desire that the Processing Agreement be assigned
to CBNY Corp. and CBNY Corp. desires to assume the Processing
Agreement, and SunGard has agreed to consent to such assignment and
assumption, all pursuant to the terms and conditions set forth
herein.
Therefore, SunGard, Bank, and CBNY Corp., intending to be legally
bound, agree as follows:
1. Assignment and Assumption. Bank hereby assigns and transfers to CBNY Corp.
all of Bank's right, interest and obligations in and to the Processing
Agreement. CBNY Corp. hereby agrees to assume, perform or otherwise satisfy
all liabilities and obligations set forth in the Processing Agreement,
including but not limited to those provisions regarding the scope and use of
the System Services under the Processing Agreement.
2. Consent. Subject to the deposit of the Security Deposit (as hereinafter
defined) by CBNY Corp. with the Escrow Agent (as hereinafter defined),
SunGard hereby consents to the assignment and assumption of the Processing
Agreement to CBNY Corp. and to the release of the Bank from all obligations
under the Processing Agreement.
3. Escrow. (a) Deposit. In consideration for SunGard's consent to the
assignment and assumption of the Processing Agreement, CBNY Corp. shall
deposit with First Union National Bank ("Escrow Agent") the amount of
$216,000 ( "Security Deposit") upon execution of this Assignment.
Additionally, upon execution of this Agreement, the parties shall execute and
deliver an escrow agreement in the form attached as Exhibit A hereto ("Escrow
Agreement"). The Security Deposit will be held and disposed of by the Escrow
Agent pursuant to the terms and conditions of the Escrow Agreement. The
Security Deposit shall be held in escrow by Escrow Agent in an interest
bearing account until December 6, 2005. CBNY Corp. shall be responsible for
all fees and expenses of the Escrow Agent pursuant to Section 10 of the
Escrow Agreement
(b) Release Conditions. CBNY Corp. acknowledges and agrees that in
the event of the termination of the Remote Processing Agreement by SunGard
pursuant to paragraph 8.3 thereof, all unpaid monthly minimum fees for the
remaining portion of the Initial Term of the Processing Agreement, as well as
all other fees and charges due but not yet paid to SunGard shall be
immediately due and payable by CBNY Corp. CBNY Corp. further acknowledges
that upon any such termination, SunGard may apply set off of the Security
Deposit and any interest accrued thereon against any sums due to SunGard by
CBNY Corp. under the Processing Agreement, and that the foregoing right of
set-off shall be in addition to, and not in replacement of, all rights and
remedies that SunGard may have pursuant to the Processing Agreement.
4. All capitalized terms not otherwise defined herein shall have the meanings
ascribed to such terms in the Processing Agreement. Except as expressly
amended hereby, the provisions of the Processing Agreement shall remain in
full force and effect.
5. This Assignment may be executed in any number of counterparts, each of
which shall constitute an original but all of which when taken together shall
constitute but one instrument.
IN WITNESS WHEREOF, the parties have caused this Assignment, Assumption and
Consent Agreement to be executed by their respective duly authorized
representatives as set forth below.
SUNgard FINANCIAL SYSTEMS Inc. COMMERCIAL BANK OF NEW YORK
BY: /s/ Xxxxxxx Xxxxxxxxxx BY: /s/ Xxxxx Xxxxxx
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PRINT NAME: Xxxxxxx Xxxxxxxxxx PRINT NAME: Xxxxx Xxxxxx
PRINT TITLE: President PRINT TITLE: President
CBNY INVESTMENT SERVICES CORP. COMMERCIAL BANK OF NEW YORK
BY: /s/ Xxxx Xxxxxxxxx Xxxxxxxx BY: /s/ Xxxxx X. Xxxxxx
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PRINT NAME: President PRINT NAME: Xxxxx Xxxxxx
PRINT NAME: Xxxx X. Xxxxxxxx PRINT NAME: Counsel
CBNY INVESTMENT SERVICES CORP.
BY: /s/ Xxxxxxxx Xxxxxxx
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PRINT NAME: 1st Vie President, Director Compliance and Legal
PRINT TITLE: Xxxxxxxx Xxxxxxx
