EXHIBIT 99.2
ATTACHMENT 1
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TRANSFER AND ASSIGNMENT
OF
NEW YORK APPOINTMENTS
THIS INSTRUMENT OF TRANSFER AND ASSIGNMENT OF NEW YORK APPOINTMENTS (this
"Transfer and Assignment") is entered into on December 15, 1995 by and
between BANKAMERICA NATIONAL TRUST COMPANY, a national association (the
"Transferor"), and FIRST TRUST OF NEW YORK, NATIONAL ASSOCIATION, a
national association (the "Transferee").
RECITALS
WHEREAS, the Transferor and certain of its Affiliates and the
Transferee and certain of its Affiliates (as defined in Section 1.1 of the
Purchase and Assumption Agreement) have entered into that certain Purchase
and Assumption Agreement dated August 21, 1995 (as supplemented to date,
the "Purchase and Assumption Agreement") pursuant to which the New York
Appointments (as defined herein) and certain Purchased Assets (as defined
in Section 2.1 of the Purchase and Assumption Agreement) of the Transferor
are being transferred to the Transferee;
WHEREAS, the Transferor conducts its trust, agency and escrow services
pursuant to authority granted by appropriate state or federal bank
regulatory authorities, and holds those certain trust and agency
appointments and the open escrows listed on Exhibit A of this Transfer and
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Assignment (the "New York Appointments"); and
WHEREAS, the Transferee, wishes to succeed the Transferor with respect
to the New York Appointments in the manner authorized by Section 604-a of
the New York Banking Law (the "Act") and is qualified to so succeed the
Transferor under applicable New York and federal law and regulations.
WHEREAS, the parties intend that the Transferee will file a
Certificate (as defined in the Act) with respect to the New York
Appointments with the office of the Superintendent (the "Superintendent")
of the New York State Banking Department (the "Department"), which
Certificate, upon endorsement by the Superintendent and filing with the
Department, shall effect the transfer and assignment authorized by the Act
and contemplated in this Transfer and Assignment (the time of such filing
being referred to herein as the "Effective Time").
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein and in the Purchase and Assumption Agreement,
the parties hereby agree as follows:
ARTICLE 1
DEFINITIONS AND CONSTRUCTION
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Section 1.1 Certain Definitions. Capitalized terms used herein
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without definitions have the meanings assigned thereto in Section 1.1. of
the Purchase and Assumption Agreement.
Section 1.2 Construction. Section 1.2 of the Purchase and Assumption
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Agreement is incorporated herein by reference.
ARTICLE 2
ASSIGNMENT AND TRANSFER
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Section 2.1 Purchased Assets; Excluded Assets.
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(a) At the Effective Time, the Transferor does hereby sell,
transfer, assign, convey and deliver as hereinafter provided, without
representation or warranty of any kind, express or implied (except to the
extent expressly provided for in this Transfer and Assignment and in the
Purchase and Assumption Agreement) to the Transferee, and the Transferee
shall purchase, accept, assume and acquire as hereinafter provided, without
representation or warranty of any kind, express or implied (except to the
extent expressly provided for in this Transfer and Assignment and in the
Purchase and Assumption Agreement) from the Transferor, all of the
following:
(i) The New York Appointments set forth on Exhibit A of this
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Transfer and Assignment and all ongoing rights, obligations and duties of
the Transferee under such Appointments.
(ii) All other Purchased Assets attributable or related to
such New York Appointments.
(b) Notwithstanding the foregoing, the Transferor does not
transfer to the Transferee any "Excluded Assets" as defined in Section
2.1(b) of the Purchase and Assumption Agreement.
Section 2.2 Assumption of Liabilities; Retained Liabilities. At the
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Effective Time, the Transferee does hereby assume the Assumed Liabilities
of the Transferor existing as of the Effective Time and attributable or
related to the New York Appointments, but does not assume any Retained
Liabilities.
Section 2.3 Effect of Transfer and Assumption. As and to the extent
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herein set forth, and subject to the provisions of the Purchase and
Assumption Agreement, immediately prior to the Effective Time (a)
Transferee shall ipso facto and by operation of law and, without further
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transfer, substitution, act or deed, succeed to (i) all rights, duties,
obligations, agreements and
relations in the capacities of trustee and/or agent with respect to the New
York Appointments existing at the Effective Time, subject to the rights of all
trustors and beneficiaries under such New York Appointments so transferred
thereafter to nominate another or succeeding trustee (or other fiduciary or
agent) for such New York Appointment to the extent provided by applicable law
and the Governing Agreements therefor, and (ii) all Purchased Assets and all
rights and claims which the Transferor may have thereunder, to the same extent
as though the Transferee had originally assumed, acquired or owned them, and
(b), (i) neither the rights of creditors nor any liability or obligation
for the payment of money nor any claim or cause of action against the
Transferor in its separate corporate capacity, existing as of the Effective
Time, shall in any manner be released or impaired by the transfer of the
New York Appointments hereunder and (ii) the rights, obligations and
relations of all creditors, depositors, trustors and beneficiaries of the
New York Appointments and of all other Persons with regard to the New York
Appointments, existing as of the Effective Time, shall remain unimpaired by
the transfer, and (c) Transferee shall be liable to perform all such
Appointments in the same manner as if the Transferee itself had assumed the
relation of trust or agency originally, and the Transferee shall succeed to
all rights, offsets and defenses of the Transferor in connection therewith
(except to the extent such rights, offsets or defenses relate to any of the
Excluded Assets or Retained Liabilities of the Transferor).
Section 2.4 Instrument of Transfer; Payment of Purchase Price;
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Transfer of Custodial Assets.
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(a) This Transfer and Assignment is an instrument of
transfer described in Section 3.4(a) of the Purchase and Assumption
Agreement, which Section is incorporated by reference.
(b) This Transferor acknowledges its receipt in full of the
Purchase Price payable by the Transferee with respect to the New York
Appointments and the related Purchased Assets.
(c) Immediately following the Effective Time, the Transferor
shall transfer to the Transferee possession and control of all Custodial
Assets (including, without limitation, Payment Pending Cash) of the kinds
and in the amounts required by the Governing Agreements related to the New
York Appointments. Until such time each of the Purchased Assets is so
transferred, the Transferor shall hold the same as custodian for the
benefit of the Transferee.
(d) Following the Effective Time, at the Request of the
Transferee, the Transferor shall deliver any further instruments of
transfer and take all reasonable action as may be necessary or appropriate
to vest in the Transferee, all right and title to and interest in the New
York Appointments and the related Purchased Assets.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE TRANSFEROR
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The Transferor hereby makes each representation and warranty to the
Transferee (except as otherwise disclosed in the Disclosure Schedule)
contained in Article 4 of the Purchase and Assumption Agreement as of the
date hereof and such representations and warranties are incorporated by
reference herein, mutatis mutandis.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE TRANSFEREE
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The Transferee hereby makes each representation and warranty to the
Transferor contained in Article 5 of the Purchase and Assumption Agreement
as of the date hereof and such representations and warranties are
incorporated by reference herein, mutatis mutandis.
ARTICLE 5
Article 9 of the Purchase and Assumption Agreement is incorporated
herein by reference, mutatis mutandis.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement by
their duly authorized corporate officers this 15th day of December, 1995.
BANKAMERICA NATIONAL FIRST TRUST OF NEW YORK
TRUST COMPANY NATIONAL ASSOCIATION
By/s/ Xxxx X. Xxxxx By/s/ Xxxxxxx X. Xxxxxx
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Name: Xxxx X. Xxxxx Name: Xxxxxxx X. Xxxxxx
Title: President and Chief Title: Chairman
Executive Officer
Exhibit A
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New York Appointments
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[Other open escrows]
77168502 TYCO INTL LTD 6 3/8% NT S
77168601 TYCO INTL LTD 8 1/8% NT D
77168604 TYCO LABS INTL 8% DEBS DU
77168605 TYCO LABS INTL 9.50% DEBS
77168603 TYCO LABS INTL M/T/N SER
77169600 TYCO LABS INTL SHELF REGI
