Exhibit 2.5
[North Fork Bancorporation, Inc. Letterhead]
October 9, 2001
Commercial Bank of New York
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx
Gentlemen:
This letter agreement amends the amended Agreement and Plan of
Reorganization, dated as of February 13, 2001, by and among Parent, Buyer Bank
and the Company (the "Reorganization Agreement"). Capitalized terms which are
not otherwise defined herein shall have the meanings set forth in the
Reorganization Agreement.
Parent and New Bank hereby agree that all conditions to their
obligation to effect the Merger set forth in Article VIII of the Reorganization
Agreement (other than the conditions set forth in Sections 8.1(b), 8.1(c), and
8.2(a), and the conditions to be added to Section 8.2 pursuant to the following
paragraph) have been satisfied and Parent hereby waives its right to terminate
the Reorganization Agreement except pursuant to Sections 9.1(a) or 9.1(c)
thereof.
Section 8.2 of the Reorganization Agreement is amended by adding
thereto the following subsections (f) and (g):
"(f) Absence of Certain Changes or Events. Except as disclosed
in any Company Report filed with the FDIC prior to the date of this
Agreement, and except for (i) the Assurance of Discontinuance to be
entered into by the Company with the Attorney General of the State of
New York, (ii) the Order to Cease and Desist and Imposition of Monetary
Penalty Issued Upon Consent to be entered into by the Company with the
New York State Banking Department and (iii) the Order to Cease and
Desist to be entered into by the Company with the Federal Deposit
Insurance Corporation, in each case substantially in the form
previously disclosed to Parent, (x) since October 9, 2001, neither the
Company nor any of its Subsidiaries has incurred any liability, except
in the ordinary course of their business consistent with past
practices, (y) there has been no change or development or combination
of changes and developments occurring since October 9, 2001 which has
had, or is reasonably likely to have, individually or in the aggregate,
a Material Adverse Effect on the Company, and (z) other than (i), (ii)
and (ii), above, there was no change or development or combination of
changes and developments occurring prior to October 9, 2001 not known
or reasonably knowable to Parent on October 9, 2001 which has had, or
is
Commercial Bank of New York
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx
October 9, 2001
reasonably likely to have, individually or in the aggregate, a Material
Adverse Effect on the Company.
"(g) Performance of Obligations of the Company after
October 9, 2001. The Company shall have performed in all material
respects all obligations required to be performed by it under this
Agreement after October 9, 2001 and at or prior to the Closing Date,
and Parent shall have received a certificate signed on behalf of the
Company by the Chief Executive Officer and the Chief Financial Officer
of the Company to such effect."
Sections 8.2(b) and 8.2(c) of the Reorganization Agreement are hereby
amended by deleting the phrase "the Closing Date" each time it occurs in such
sections and substituting in lieu thereof the phrase "October 9, 2001," and by
inserting after the word "received" each time it occurs in such sections the
phrase "on October 9, 2001."
Section 9.1(c) of the Reorganization Agreement is hereby amended by
deleting such Section in its entirety and substituting in lieu thereof a new
Section 9.1(c) as follows:
"(c) by either Parent or the Company if the Merger shall not
have been consummated on or before December 31, 2001, unless the
failure of the Closing to occur by such date shall be due to the
failure of the party seeking to terminate this Agreement to perform or
observe the covenants and agreements of such party set forth herein;"
Notwithstanding Section 10.1 of the Reorganization Agreement, subject
to the terms of the Reorganization Agreement, as modified by this letter
agreement, the Closing shall occur on November 9, 2001, provided that if the
conditions to each party's obligation to consummate the Merger shall not have
been satisfied or waived on such date, the Closing will occur on the second
business day after the satisfaction or waiver (subject to applicable law) of the
conditions set forth in Sections 8.1(b) and 8.2(a).
Commercial Bank of New York
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx
October 9, 2001
Please indicate your agreement with the terms and conditions of this
letter agreement by signing the enclosed copy hereof in the space provided and
returning it to us, at which time this letter agreement will become a binding
agreement between us, as of the date and year first above written.
Very truly yours,
North Fork Bancorporation, Inc.
By: /s/ Xxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President
and Chief Financial Officer
North Fork Bank
By: /s/ Xxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President
Agreed to:
Commercial Bank of New York
By: /s/ Xxxxx Xxxxxx
--------------------------------
Name: Xxxxx Xxxxxx
Title: President and Chief
Executive Officer
