EXHIBIT 2.2
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (the "Agreement") is made as of
November 9, 2001 by and between North Fork Bank ("Assignee"), a New York
chartered trust company and wholly owned subsidiary of North Fork
Bancorporation, Inc., a Delaware corporation ("Bancorp"), and Commercial Bank of
New York ("Assignor"), a New York chartered trust company and wholly owned
subsidiary of Assignee.
WHEREAS, Bancorp, Assignee, and Assignor entered into a certain Agreement
and Plan of Reorganization, dated as of February 13, 2001 ("Plan of
Reorganization"), providing for the acquisition by Bancorp of Assignor through a
so-called "interim bank merger," in which a newly formed interim bank owned
directly or indirectly by Bancorp would merge with and into Assignor; and
WHEREAS, in order to effect this merger (the "Interim Merger"), Bancorp
organized Interim Bank under the New York Banking Law ("NYBL") as a New York
chartered commercial bank wholly owned by Bancorp's subsidiary, Assignee; and
WHEREAS, effective this date, Interim Bank has merged with and into
Assignor, pursuant to a Plan of Bank Merger, dated as of November 9, 2001,
between Interim Bank and Assignor; and
WHEREAS, upon consummation of the Interim Merger, Assignor has become a
wholly owned subsidiary of Assignee and the former shareholders of Assignor have
received from Assignee cash in the amount of $32.00 per share for each of their
outstanding shares of Assignor; and
WHEREAS, immediately following consummation of the Interim Merger,
Assignor adopted a plan of complete liquidation pursuant to sections 337 and 332
of the Internal Revenue Code of 1986, as amended ("Plan of Liquidation"),
providing for the orderly winding up and complete liquidation of Assignor; and
WHEREAS, immediately following such adoption, as the first step of the
Plan of Liquidation, the parties hereto intend that substantially all of the
assets and liabilities, including all deposit liabilities, all loans, and all
banking operations, of Assignor be transferred to its immediate parent company,
Assignee, in an assignment and assumption transaction, to be effected this date,
with Assignor to retain only certain designated assets and liabilities,
including certain contingent liabilities of Assignor and certain liquid assets
equal to the shareholders' equity of Assignor prior to the transfer; and
WHEREAS, the Boards of Directors of Assignor and Assignee have approved
such assignment and assumption transaction on the terms and conditions set forth
herein, and all regulatory and other approvals required for consummation of such
transactions have been received;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, agree as follows:
1. DEFINITIONS. Unless the context otherwise requires, capitalized terms
used in this Agreement shall have the meanings set forth herein, whether such
definition be in this Section 1 or elsewhere in this Agreement. References to
Sections, Exhibits and Schedules refer to Sections of, and Exhibits and
Schedules to, this Agreement.
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(a) "Accrued Interest" shall mean as of any date (a) with respect to the
Deposit Liabilities, the interest that has been accrued but not paid or credited
on the Deposit Liabilities, and (b) with respect to the Loans, the interest,
fees, costs and other charges that have accrued on or been charged to the Loans
but not paid by the applicable borrower, or a guarantor or surety therefor, or
otherwise collected by offset or recourse to collateral for the applicable Loan.
(b) "Assignment and Assumption" shall mean the transfer from Assignor to
Assignee of the Bank Assets and the Bank Liabilities as provided for herein.
(c) "Bank Assets" shall mean those assets of Assignor to be transferred to
Assignee pursuant to this Agreement, which will consist of all of Assignor's
assets at the Effective Time other than the Excluded Assets, and shall include,
without limitation, the following: (i) the Real Property and Other Real Estate
Owned; (ii) the Personalty; (iii) the Loans; (iv) the Banking Office Leases,
Tenant Leases and Safe Deposit Agreements; (v) all rights under any building
maintenance, service, vendor or other contracts in effect as of the date hereof
relating to the banking services, functions and activities conducted or
performed by Assignor (the "Bank Business"), to the extent such contracts are
assignable and do not consist of or relate to Excluded Assets; (vi) Cash, except
to the extent constituting Excluded Assets; (vii) Investment Securities, except
to the extent constituting Excluded Assets; (viii) prepaid expenses relating to
any other Bank Asset as of the date hereof; (ix) rights appertaining to the
contracts and relationships giving rise to the Deposit Liabilities that Assignee
is assuming; (x) rights appertaining to any negative deposits (overdrafts) in
accounts booked at or allocated to the Banking Offices and outstanding as of the
date hereof; (xi) all insurance premiums paid by Assignor to the Federal Deposit
Insurance Corporation ("FDIC") that are allocable to insurance coverage for the
Deposit Liabilities after the Effective Time; (xii) ownership interests in the
capital stock of the Federal Home Loan Bank of New York owned by Assignor
immediately prior to closing; (xiii) rights
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appertaining to Custodial Accounts, Fiduciary Accounts and other similar
accounts; and (xiv) any and all other rights, property and assets, including
intangible assets, relating to or used by Assignor in the Bank Business, except
for any of the foregoing that shall be Excluded Assets.
(d) "Bank Business" shall have the meaning set forth in Section 1(c)(v).
(e) "Bank Liabilities" shall mean the liabilities of Assignor to be
assumed by Assignee pursuant to this Agreement, which will consist of all of
Assignor's liabilities and obligations at the Effective Time other than Excluded
Liabilities, and shall include, without limitation, the following: (i) the
Deposit Liabilities including, without limitation, any negative deposits
(overdrafts); (ii) all liabilities and obligations under the Banking Office
Leases and Tenant Leases (irrespective of whether any necessary third-party
consents to the transfer thereof have been obtained); (iii) all liabilities and
obligations under the Safe Deposit Agreements; (iv) all liabilities and
obligations relating to the Loans; (v) all liabilities and obligations under the
Custodial Accounts and Fiduciary Accounts; (vi) all liabilities and obligations
under any building maintenance, service, vendor or other contract relating to
the Bank Business in effect as of the date hereof, regardless of whether such
contract is assignable and/or included in Section 1(c)(v), including costs of
terminating any such contracts that Assignee chooses to terminate in connection
with the transactions contemplated by this Agreement, but excluding any such
contracts arising out of or relating to Excluded Liabilities; (vii) any and all
borrowings from the Federal Home Loan Bank of New York or any other person
related to Assignor's business; (viii) any liabilities and obligations with
respect to Real Property and Other Real Estate Owned; (ix) any liabilities and
obligations with respect to any employees of Assignor (whether employed directly
by Assignor or through leases or otherwise) except for any such liabilities as
are Excluded Liabilities; and (x) any and all other liabilities and obligations,
including contingent
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liabilities, relating to or arising out of the Bank Business, except for any of
the foregoing that shall be Excluded Liabilities.
(f) "Banking Offices" shall mean the banking offices and other premises
used by Assignor in its Bank Business (including automated teller machine
premises) at the Effective Time, which consist of those listed on Schedule 1(f)
hereto.
(g) "Banking Office Leases" shall mean the leases or subleases for the
Banking Offices that are subject to lease or sublease at the Effective Time,
which are listed on Schedule 1(g) hereto.
(h) "Capital Distribution" shall mean the distribution by Assignor to
Assignee immediately after the Assignment and Assumption of the shareholder's
equity of Assignor at such time less the Retained Capital Amount, as further
described in the Plan of Capital Distribution attached hereto as Exhibit 1.
(i) "Cash" shall mean xxxxx cash, vault cash, teller cash, automated
teller machine cash and prepaid postage, in each case as of the Effective Time,
as determined by an audit conducted by one or more employees of Assignee.
(j) "Closing" shall mean the consummation of the Assignment and Assumption
at the Effective Time.
(k) "Custodial Accounts" shall mean any and all accounts (including IRAs)
or customer relationships under which Assignor serves as custodian for the
property or assets of another Person, whether pursuant to the express terms of
the customer agreement underlying such account or relationship, the books and
records maintained by Assignor relating thereto, or
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applicable law and regulation, and whether or not such accounts or relationships
may also be Fiduciary Accounts.
(l) "Deposit Liabilities" or "Deposit Liability" shall mean deposit
liabilities with respect to all deposit accounts maintained by Assignor at the
Effective Time that are defined as deposits in the Federal Deposit Insurance
Act, 12 U.S.C. Section 1813, including in each case collected and uncollected
deposits plus Accrued Interest, as well as all IRAs which consist solely of
deposits with Assignor (including, without limitation, all deposit liabilities
set forth on Schedule 1(L) hereto.
(m) "Effective Time" shall mean the date and time of the Closing, as
provided in Section 5(a) hereof.
(n) "Excluded Assets" shall be those assets of Assignor at the Effective
Time that are not being transferred to Assignee in the Assignment and
Assumption, which assets are listed or described on Schedule 2(b)(1) hereto.
(o) "Excluded Liabilities" shall be those liabilities of Assignor at the
Effective Time that are not being transferred to or assumed by Assignee in the
Assignment and Assumption, which liabilities are listed or described on Schedule
2(b)(2) hereto.
(p) "Fiduciary Accounts" shall mean any and all accounts or customer
relationships under which Assignor serves as fiduciary with respect to another
Person, whether pursuant to the express terms of the customer agreement
underlying such accounts or relationships, the books and records of Assignor
relating thereto, or applicable law and regulation, and whether or not such
accounts or relationships may also be Custodial Accounts.
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(q) "Interim Bank" shall mean 000 Xxxxxxxxxxx Xxxx Xxxx, x Xxx Xxxx
chartered commercial bank, wholly owned by Assignee, formed solely for the
purpose of facilitating the Interim Merger.
(r) "Interim Merger" shall mean the merger of Interim Bank with and into
Assignor, pursuant to that certain Plan of Bank Merger dated November 9, 2001,
between Interim Bank and Assignor.
(s) "Investment Securities" shall mean securities of any type or duration,
including stocks, bonds, notes, debentures, government securities, municipal
securities, and derivative securities, and rights to buy or sell any of the
same, that are owned by Assignor at the Effective Time, including all shares
owned by Assignor in all subsidiaries of Assignor at the Effective Time (which
are those subsidiaries listed in Schedule 1(s)).
(t) "XXX" shall mean any Individual Retirement Account having assets
consisting of Deposit Liabilities only.
(u) "IRS" shall mean the United States Internal Revenue Service.
(v) "Loans" shall mean:
(i) all loans held by Assignor at the Effective Time (including
any reserve for possible loan losses), including all portions
of loans which may have been participated out to other lenders
by Assignor or portions of loans which may have been
participated to Assignor by other lenders (including, without
limitation, the loans set forth on Schedule 1(v) hereto and
all security therefor);
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(ii) pending credit applications to Assignor at the Effective Time
and unfunded commitments, including, without limitation,
scheduled credits of Assignor subject to any repayments or
prepayments, in whole or in part, advances, credits, debits,
charges or other actions affecting the balance of any such
loans as of the Effective Time; and
(iii) all documents executed or delivered in connection with any
loan and any and all collateral held as security therefor or
in which a security interest, lien or mortgage has been
granted, and all rights in relation thereto, together with
Accrued Interest thereon, all as of the Effective Time, and
Assignor's loan files and records relating thereto.
(w) "Other Real Estate Owned" shall mean real estate owned by Assignor as
of the Effective Time and acquired by Assignor or its predecessors in the course
of the foreclosure of any Loan made by Assignor or its predecessors prior to the
Effective Time.
(x) "Person" shall mean an individual, corporation, partnership, limited
liability company, unincorporated association, trust, joint venture or other
organization or entity or governmental entity and shall include any successor
(by merger or otherwise) of such entity.
(y) "Personalty" shall mean all of the personal property of Assignor used
in the Bank Business and located in the Banking Offices at the Effective Time,
including trade fixtures, leasehold improvements, shelving, furniture, automated
teller machines, equipment, security systems, safe deposit boxes (exclusive of
contents), vaults and supplies.
(z) "Real Property" shall mean all real estate interests of Assignor at
the Effective Time, including all interest of Assignor in and to all real estate
owned or leased relating to the
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Banking Offices and other offices or structures used by Assignor in the Bank
Business or otherwise owned by Assignor, but excluding Other Real Estate Owned.
(aa) "Regulatory Approvals" shall mean approvals in writing of all
required federal and state regulatory agencies for the transactions provided for
in this Agreement, including, without limitation, approval of the Assignment and
Assumption by the New York State Banking Department under Section 601-a of the
NYBL and by the Federal Deposit Insurance Corporation under Section 18(d) of the
Federal Deposit Insurance Act, approval of the assumption of the Fiduciary
Accounts and Custodial Accounts by Assignee under Section 604-a of the NYBL, and
approval of the transfer of the Safe Deposit Agreements to Assignee under
Section 337 of the NYBL.
(bb) "Retained Capital Amount" shall mean the dollar amount of capital
funds to be retained by Assignor after the Capital Distribution, as identified
as Attachment 1 to the Plan of Capital Distribution attached hereto as Exhibit
1.
(cc) "Safe Deposit Agreements" shall mean the agreements relating to safe
deposit boxes maintained by Assignor and located in the Banking Offices, and
shall include any keys that open such safe deposit boxes.
(dd) "Tenant Leases" shall mean leases or subleases between Assignor or
any related party, as lessor, and the tenants of the Banking Offices, if any,
listed on Schedule 1(dd).
2. ASSIGNMENT AND ASSUMPTION; CAPITAL DISTRIBUTION.
(a) Transfer of Bank Assets and Bank Liabilities. Subject to the terms and
conditions of this Agreement, at the Effective Time Assignor will transfer,
convey, sell, assign and deliver to Assignee, and Assignee will purchase, accept
and assume from Assignor, (i) all right, title and
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interest of Assignor in, to and under the Bank Assets, and (ii) all duty,
responsibility, obligation and liability of Assignor under and for the Bank
Liabilities (such transactions, the "Assignment and Assumption"). At the
Effective Time, Assignor and Assignee will execute and deliver to each other all
instruments, titles, acceptances, receipts, bills and other documents of
transfer, conveyance or acceptance necessary in order to effect the Assignment
and Assumption.
(b) Excluded Assets and Excluded Liabilities. Notwithstanding the
foregoing or anything else in this Agreement or any other document to the
contrary, at the Effective Time Assignor will not transfer, convey, sell, assign
or deliver to Assignee, and Assignee will not purchase, accept or assume from
Assignor (i) the Excluded Assets (as listed or described on Schedule 2(b)(1)
hereto), it being expressly understood and agreed by the parties that Assignor
is retaining all right, title and interest in and to the Excluded Assets, or
(ii) the Excluded Liabilities (as listed or described on Schedule 2(b)(2)
hereto), it being expressly understood and agreed by the parties that Assignor
is retaining all duty, responsibility, obligation and liability under and for
the Excluded Liabilities.
(c) Assumption of Fiduciary and Custodial Relationships. Without in any
way limiting the provisions of Sections 2(a) and 2(b) above, as part of the
Assignment and Assumption, Assignee will accept and assume all rights, duties,
obligations and liabilities of Assignor under and with respect to all Fiduciary
Accounts and Custodial Accounts of Assignor, including all duties of Assignor as
fiduciary, agent, custodian, guardian, receiver, trustee, committee or
conservator thereunder (collectively, "Fiduciary Duties"), whether such
Fiduciary Duties arise out of the terms and conditions of customer agreements
and documents relating to such accounts or under applicable provisions of law
and regulation relating to such accounts and relationships, all of which
Fiduciary Duties will be deemed to have been assumed by Assignee at the
Effective Time, regardless of when the customer or other Persons controlling or
responsible
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for such accounts may consent or agree to such assumption or be deemed to have
consented or agreed thereto (if consent of agreement is required), may be
notified thereof, or may take any action required to be taken by them with
respect thereto.
(d) Assumption of Safe Deposit Accounts. Without in any way limiting the
provisions of Sections 2(a) and 2(b) above, as part of the Assignment and
Assumption, Assignee will accept and assume all rights, duties, obligations and
liabilities of Assignor under and with respect to all Safe Deposit Agreements of
Assignor ("Safe Deposit Duties"), whether such Safe Deposit Duties arise out of
the terms and conditions of customer agreements and documents relating to such
accounts or under applicable provisions of law and regulation relating to such
accounts and relationships, all of which Safe Deposit Duties will be deemed to
have been assumed by Assignee at the Effective Time, regardless of when the
customer or other Persons controlling or responsible for such accounts may
consent or agree to such assumption or be deemed to have consented or agreed
thereto (if consent of agreement is required), may be notified thereof, or may
take any action required to be taken by them with respect thereto.
(e) Capital Distribution. Immediately after the Effective Time of the
Assignment and Assumption, as the next step in the Plan of Liquidation, Assignor
will pay and distribute to its sole shareholder, Assignee, the Capital
Distribution as further described in Exhibit 1 hereto, and subject to prior
receipt of all required approvals and consents, including regulatory approvals,
of such distribution.
3. BANKING OFFICES. The Banking Offices of Assignor immediately prior to
the Effective Time, as listed on Schedule 1(f) hereto, shall become branch
offices of Assignee subject to the terms and conditions of this Agreement.
4. CONSIDERATION.
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(a) Purchase Price. The sole consideration to be paid by Assignee to
Assignor for the Bank Assets received by Assignee from Assignor at the Effective
Time will be the assumption by Assignee from Assignor of the Bank Liabilities.
It is the intention and expectation of the parties that the aggregate book value
of the Bank Assets on the books of Assignor at the Effective Time (exclusive of
the Excluded Assets) will equal the aggregate book value of the Bank Liabilities
on the books of Assignor at the Effective Time (exclusive of the Excluded
Liabilities).
(b) Closing Date Balance Sheet; Listing of Bank Assets and Liabilities. At
the Effective Time, Assignor will deliver to Assignee an estimated balance sheet
of Assignor as of the most recent practicable date prior to the Closing,
identifying the estimated aggregate dollar amounts of total assets, total
liabilities and shareholders' equity of Assignor as of such date, the estimated
aggregate dollar value of the Bank Liabilities (if different from total
liabilities) as of such date, with each major category of liabilities and assets
to be identified by type and estimated dollar amount, and the estimated dollar
amount of the Capital Distribution to be paid by Assignor to Assignee
immediately after the Effective Time. All instruments of transfer delivered at
the Closing will be prepared on the basis of such estimated balance sheet.
(c) Post-Closing Adjustments. As soon as practicable after the Effective
Time, Assignor and Assignee will cooperate in preparing and finalizing a
reconciled balance sheet of Assignor as of the close of business on the date of
Closing, identifying actual dollar amounts of total assets, total liabilities
and shareholders' equity of Assignor as of the close of business on the date of
Closing, including the actual dollar amounts of the Bank Assets and the Bank
Liabilities transferred at such time. To the extent that such reconciled balance
sheet may disclose that the actual dollar amount of the Bank Assets transferred
to Assignee at Closing did not equal the
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actual dollar amount of the Bank Liabilities assumed by Assignee at Closing, (i)
if the dollar amount of the former exceeds the dollar amount of the latter, an
adjustment shall be made by the parties on their books and records relating to
the Assignment and Assumption and the Capital Distribution, deducting the amount
of such excess from the Bank Assets transferred by Assignor to Assignee at
Closing and adding the amount of such excess to the amount of the Capital
Distribution, and (ii) if the dollar amount of the latter exceeds the dollar
amount of the former, a comparable but opposite adjustment shall be made by the
parties on their books and records, adding the amount of such excess to the Bank
Assets transferred by Assignor to Assignee at Closing and deducting the amount
of such excess from the Capital Distribution. Any instruments and other
documents of transfer and conveyance necessary to effect this adjustment shall
be delivered by the parties to each other at the time of the adjustment.
5. CLOSING.
(a) Closing; Effective Time. The Closing shall occur at the Effective
Time, which shall be 3:02 p.m., New York City time, on November 9, 2001, or at
such other date and time as may subsequently be agreed upon by the parties,
provided that the Effective Time shall occur immediately after, but not before,
effectiveness of the Interim Merger. The Closing shall take place at the offices
of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, or at such other place as may
subsequently be agreed upon by the parties.
(b) Items to be Delivered by Assignor. At the Effective Time, Assignor
will deliver to Assignee each of the following:
(i) a xxxx of sale for the Bank Assets, substantially in the form
of Exhibit 2 attached hereto, evidencing the transfer from
Assignor to Assignee of the Bank Assets, "AS IS," "WHERE IS,"
and with all faults;
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(ii) quitclaim deeds for each parcel of Real Property owned in fee
by Assignor and each parcel of Other Real Estate Owned,
pursuant to which such Real Property or Other Real Estate
Owned is transferred from Assignor to Assignee, "AS IS,"
"WHERE IS," and with all faults, and subject to any and all
encumbrances, liens and other title imperfections affecting
such Real Property and Other Real Estate Owned;
(iii) assignments (without recourse or warranty) transferring to
Assignee all right, title and interest of Assignor to Real
Property under any Banking Office Leases, Tenant Leases or any
other leases or subleases;
(iv) the resignation of Assignor as fiduciary under each Fiduciary
Account and as custodian under each Custodial Account and the
designation of Assignee as successor fiduciary or successor
custodian with respect thereto; and
(v) such other documents as may be necessary to effect the
transactions contemplated hereby, as Assignee may reasonably
request.
(c) Items to be Delivered by Assignee. At the Effective Time, Assignee
will deliver to Assignor each of the following:
(i) a receipt substantially in the form of Exhibit 3 attached
hereto, evidencing receipt by Assignee from Assignor of the
Bank Assets;
(ii) the acceptance by Assignee of its appointment as successor
fiduciary under each Fiduciary Account and as successor
custodian under each Custodial Account and assumption of all
duty, responsibility, obligation,
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and liability of its predecessor fiduciary or custodian with
respect thereto; and
(iii) such other documents as may be necessary to effect the
transactions contemplated hereby, as Assignor may reasonably
request.
6. CONDITIONS TO CLOSING.
(a) Conditions to Obligation of Assignor. Unless expressly waived in
writing by Assignee, the obligation of Assignor to transfer and convey to
Assignee the Bank Assets and the Bank Liabilities at the Effective Time is
subject to satisfaction as of the Effective Time of each of the following
conditions:
(i) effectiveness of the Interim Merger;
(ii) prior receipt of all Regulatory Approvals and satisfaction of
all conditions thereto, including the giving of all legally
required notices and the expiration of all legally required
waiting or protest periods, of or relating thereto;
(iii) prior receipt of all other necessary approvals and consents
for effectiveness of the Assignment and Assumption, including
any additional governmental permissions or licenses, and
satisfaction of all conditions thereto; and
(iv) receipt by Assignor of all items to be delivered by Assignee
at or prior to the Effective Time pursuant to Section 5(c)
hereof.
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(b) Conditions to Obligation of Assignee. Unless expressly waived in
writing by Assignor, the obligation of Assignee to accept and assume from
Assignor the Bank Assets and the Bank Liabilities at the Effective Time is
subject to satisfaction as of the Effective Time of each of the following
conditions:
(i) effectiveness of the Interim Merger;
(ii) prior receipt of all Regulatory Approvals and satisfaction of
all conditions thereto, including the giving of all legally
required notices and the expiration of all legally required
waiting or protest periods, of or relating thereto;
(iii) prior receipt of all other necessary approvals and consents
for effectiveness of the Assignment and Assumption, including
any additional governmental permissions or licenses, and
satisfaction of all conditions thereto; and
(iv) receipt by Assignee of all items to be delivered by Assignor
at or prior to the Effective Time pursuant to Section 5(b).
7. REPRESENTATIONS AND WARRANTIES.
a. Representations and Warranties of Assignor. Assignor represents and
warrants to Assignee as follows:
(i) Organization. Assignor is a corporation duly organized,
validly existing and in good standing under the laws of the
State of New York, including the NYBL.
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(ii) Authority. Assignor has the power and authority to enter into
and perform this Agreement. This Agreement and any other
documents or instruments executed pursuant hereto and the
execution, delivery and performance hereof and thereof have
been duly authorized and approved by all necessary corporate
actions on the part of Assignor, and this Agreement and the
instruments and documents executed pursuant hereto constitute,
or will constitute, the valid and binding obligations of
Assignor, enforceable against Assignor in accordance with
their terms, except as enforcement may be limited by federal
and state regulators of Assignor or by bankruptcy, insolvency,
reorganization, moratorium or other laws of general
applicability relating to or affecting creditors' rights, or
the limiting effect of rules of law governing specific
performance, equitable relief and other equitable remedies or
the waiver of rights or remedies.
(iii) Non-Contravention. The execution and delivery of this
Agreement and the instruments and documents executed pursuant
hereto by Assignor do not and, subject to the receipt of all
required approvals and consents, the consummation of the
transactions contemplated by this Agreement will not,
constitute (i) a breach or violation of or default under any
law, rule, regulation, judgment, order, governmental permit or
license of Assignor or to which Assignor is subject, which
breach, violation or default would reasonably be expected to
impair the validity or consummation of this Agreement or the
transactions contemplated hereby; or (ii) a breach or
violation of or a default under the organizational documents
of Assignor
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or any material contract or other instrument to which Assignor
is a party or by which Assignor is bound.
(iv) Compliance with Laws. Except as disclosed on Schedule
7(a)(iv), Assignor is not in violation of, nor is any of the
property owned or leased by Assignor in violation of, its
organizational documents, or of any applicable federal, state
or local law or ordinance or any order, rule or regulation of
any federal, state, local or other governmental agency or body
(including, without limitation, all banking (including,
without limitation, all regulatory capital requirements),
fiduciary or agency, consumer protection, securities,
municipal securities, safety, health, environmental, zoning,
anti-discrimination, antitrust, and wage and hour laws,
ordinances, orders, rules and regulations), which would
reasonably be expected to impair the validity or consummation
of this Agreement or the transactions contemplated hereby, or
in default with respect to any order, writ, injunction or
decree of any court, or in default under any order, license,
regulation or demand of any governmental agency.
(v) Legal Proceedings. There are no actions, suits, claims, formal
governmental investigations or proceedings instituted or
pending against Assignor or against any officer, director or
employee of Assignor which would be reasonably likely to
prevent or hinder the consummation of the transactions
contemplated by this Agreement.
(b) Representations and Warranties of Assignee. Assignee represents and
warrants to Assignor as follows:
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(i) Organization. Assignee is a corporation duly organized,
validly existing and in good standing under the laws of the
State of New York, including the NYBL
(ii) Authority. Assignee has the power and authority to enter into
and perform this Agreement and any instruments or other
documents executed pursuant hereto. This Agreement and any
instruments or other documents executed pursuant hereto, and
the execution, delivery and performance hereof and thereof
have been duly authorized and approved by all necessary
corporate actions on the part of Assignee, and this Agreement
constitutes a valid and binding obligation of Assignee,
enforceable in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws of general
applicability relating to or affecting creditors' rights, or
the limiting effect of rules of law governing specific
performance, equitable relief and other equitable remedies or
the waiver of rights or remedies.
(iii) Non-Contravention. The execution and delivery of this
Agreement and any instruments or other documents executed
pursuant hereto by Assignee do not and, subject to the receipt
of all required approvals and consents, the consummation of
the transactions contemplated by this Agreement will not,
constitute (i) a breach or violation of or default under any
law, rule, regulation, judgment, order, governmental permit or
license of Assignee, or to which either of them is subject,
which breach, violation or default would reasonably be
expected to impair the validity or consummation of this
Agreement or the transactions contemplated hereby,
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or (ii) a breach or violation of or a default under the
organizational documents of Assignee or any material contract
or other instrument to which it is a party or by which it is
bound, except to the extent that any such breaches or
violations, in the aggregate, would not have a material
adverse effect on Assignee or would not impair the validity or
consummation of this Agreement or the transactions
contemplated hereby.
8. INDEMNIFICATION.
(a) Assignor's Indemnity. Except as otherwise provided in this Agreement,
Assignor shall jointly and severally indemnify, hold harmless and defend
Assignee, and its respective directors, shareholders, officers, agents and
employees (the "Assignee Indemnitees") from and against all claims, losses,
liabilities, demands and obligations, including reasonable legal fees and
expenses (collectively, "Claims") which any Assignee Indemnitee shall receive,
suffer or incur after the date hereof arising out of or resulting from (a) any
Excluded Asset or Excluded Liability, or (b) the breach of any representation,
warranty or covenant made by Assignor in this Agreement.
(b) Assignee's Indemnity. Except as otherwise provided in this Agreement,
Assignee shall jointly and severally indemnify, hold harmless and defend
Assignor and its respective directors, shareholders, officers, agents and
employees (the "Assignor Indemnitees") from and against all Claims which any
Assignor Indemnitee shall receive, suffer or incur after the date hereof arising
out of or resulting from (a) the Bank Assets or Bank Liabilities accepted and
assumed by Assignee hereunder, or (b) the breach of any representation, warranty
or covenant made by Assignee in this Agreement.
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(c) Survival. All indemnities contained in or made pursuant to this
Agreement shall survive and remain in full force and effect until the date that
is six (6) years after the Effective Time or the termination of this Agreement,
prior to effectiveness, and shall then expire, except as to any claim for such
indemnity as to which written notice shall have been given to the party from
whom indemnification is sought prior to such date.
9. POST-CLOSING MATTERS.
(a) Further Assurances. From time to time after the Effective Time, each
of the parties will, upon request by the other party and without further
consideration, execute, acknowledge and deliver all such other instruments of
sale, assignment, conveyance and transfer, and shall take all such other
commercially reasonable actions, in each case to the extent required to give
effect to the transactions in accordance with the terms of this Agreement.
Without limiting the generality of the foregoing, Assignor covenants and agrees
that it will, promptly upon Assignee's reasonable request, execute, acknowledge
and deliver to Assignee, in commercially reasonable form provided or approved by
Assignee or its counsel and Assignor or its counsel, promissory note
endorsements; allonges; and assignments of: deeds of trust, mortgages, financing
statements, security agreements, loan or credit agreements, assignments of
leases or rents, and any and all other documents that evidence, secure or
otherwise are related to any or all of the loans that are included within the
Bank Assets or the Bank Liabilities.
(b) Access to and Retention of Books and Records. On or as soon as
practicable after the Effective Time, Assignor will transfer and deliver to
Assignee all books and records in the possession of Assignor relating to the
Bank Assets and the Bank Liabilities (specifically excluding books and records
relating to the Excluded Assets and Excluded Liabilities). Notwithstanding
anything to the contrary contained herein, the parties will be subject to all
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applicable laws relating to the confidentiality of bank records for the Bank
Assets and Bank Liabilities transferred from Assignor to Assignee.
(c) Mutual Cooperation. In order to accomplish an orderly transition
relative to the processing of debits and credits to the Bank Assets and Bank
Liabilities to be assumed by Assignee under this Agreement, Assignor will
cooperate with Assignee in good faith in the post-Closing processing of checks,
drafts, deposit tickets for Deposit Liabilities made prior to and after the
Effective Time and payments of principal and interest received by Assignee after
the Effective Time with respect to the Loans. Assignee intends that the Uniform
Commercial Code as in effect in the State of New York, applicable federal
regulations and usual banking practices shall govern the processing of such
items.
(d) Deposits and Loan Payments Inadvertently Received. Assignor and
Assignee will make all reasonable efforts to facilitate the acceptance after the
Effective Time of any deposits or loan payment for accounts transferred to or
assumed by Assignee. Assignor will accept deposits and loan payments after the
Effective Time for accounts assumed by Assignee for a period not to exceed one
hundred twenty (120) days. Assignee and Assignor will undertake reasonable
measures to facilitate the timely crediting of deposits and payments.
(e) Insurance. Assignee will continue to maintain after the Effective
Time, and will include Assignor as an additional insured on, all insurance
coverages maintained by Assignor at the Effective Time relating to the Bank
Assets and Bank Liabilities, including any rights under policies transferred to
Assignee pursuant to this Agreement as part of the Bank Assets, such coverage to
extend to actions or omissions of, or claims against Assignor and its employees,
directors and agents arising on or before the Effective Time, provided that
Assignor will not transfer to Assignee and Assignee will have no duty to
maintain any insurance policies or
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coverage with respect to any liabilities of Assignor or its directors, officers
or employees constituting Excluded Liabilities or arising out of or relating to
any Excluded Liabilities or Excluded Assets.
10. NOTICES. All notices required or permitted under this Agreement shall
be given in writing, shall reference this Agreement and shall be deemed to have
been delivered and given (a) upon personal delivery to the party to be notified;
(b) when sent by confirmed facsimile if sent during normal business hours of the
recipient or, if not, then on the next business day; (c) five days after having
been sent by registered or certified U.S. mail, return receipt requested,
postage and charges prepaid; or (d) one business day after deposit with a
nationally-recognized commercial overnight courier, specifying next day
delivery, with written verification of receipt. All such communications shall be
delivered to the following addresses (or to such other address for a party as
shall be specified by like notice):
if to Assignee, to
North Fork Bank
000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attn: Xx. Xxxxxx X. Xxxxx
and
if to Assignor, to
Commercial Bank of New York
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attn: Mr. Xxxx XxXxxxxxx
11. AMENDMENT. This Agreement may not be amended or modified except by an
instrument in writing signed on behalf of both of the parties hereto.
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12. COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be deemed to be an original, and all of which taken together shall
be deemed to be one and the same instrument.
13. PHOTOCOPIES. A photocopy of this Agreement is valid as an original for
all purposes.
14. TERMINATION. This Agreement may be terminated by mutual agreement of
the parties hereto, evidenced in writing.
15. GOVERNING LAW. This Agreement shall be interpreted, construed and
enforced in all respects in accordance with the laws of the State of New York,
without regard to any principles of conflicts of laws thereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Assignment and
Assumption Agreement as of the date first set forth above.
NORTH FORK BANK
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
COMMERCIAL BANK OF NEW YORK
By: /s/ Xxxx X. XxXxxxxxx
-------------------------------------
Name: Xxxx X. XxXxxxxxx
Title: Vice President and
Chief Financial Officer
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