EXHIBIT 10.L
PURCHASE AND ASSUMPTION AGREEMENT
BY AND AMONG
THE PRUDENTIAL BANK AND TRUST COMPANY,
THE PRUDENTIAL SAVINGS BANK, F.S.B.
AND
CITY NATIONAL BANK OF NEW JERSEY
PURCHASE AND ASSUMPTION AGREEMENT
1
Table of Contents
Page
ARTICLE I.A DEFINITIONS.................................................................................. 5
ARTICLE I TRANSFER OF ASSETS AND LIABILITIES........................................................... 5
Section 1.1 Transferred Assets........................................................................... 5
Section 1.2 Consideration and Purchase Price............................................................. 7
Section 1.3 Deposit Liabilities.......................................................................... 8
Section 1.4 Employee Matters............................................................................. 11
Section 1.5 Records and Data Processing.................................................................. 11
Section 1.6 Taxes and Fees; Proration of Certain Expenses................................................ 11
Section 1.7 Form 8594.................................................................................... 12
ARTICLE II CLOSING AND EFFECTIVE TIME................................................................... 12
Section 2.1 Effective Time............................................................................... 12
Section 2.2 Closing...................................................................................... 12
Section 2.3 Post-Closing Adjustments..................................................................... 14
ARTICLE III INDEMNIFICATION.............................................................................. 16
Section 3.1 Seller's Indemnification of Purchaser........................................................ 16
Section 3.2 Purchaser's Indemnification of Seller........................................................ 16
Section 3.3 Indemnification Procedure.................................................................... 17
Section 3.4 Limitations on Indemnification............................................................... 18
Section 3.5 Exclusivity of Indemnification Provision..................................................... 19
Section 3.6 Survival of Representations and Warranties................................................... 19
Section 3.7 Survival of Claims for Indemnification....................................................... 19
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF SELLER..................................................... 20
Section 4.1 Corporation Organization..................................................................... 20
Section 4.2 No Violation................................................................................. 20
Section 4.3 Corporate Authority.......................................................................... 20
Section 4.4 Enforceable Agreement........................................................................ 21
Section 4.5 No Brokers................................................................................... 21
Section 4.6 True Statement............................................................................... 21
Section 4.7 No Suits or Proceedings...................................................................... 21
Section 4.8 Liens........................................................................................ 21
Section 4.9 Deposit Accounts and Liabilities............................................................. 22
Section 4.10 No Other Liabilities......................................................................... 22
Section 4.11 Records...................................................................................... 23
Section 4.12 Individual Retirement Accounts............................................................... 23
Section 4.13 Limitation of Representations and Warranties................................................. 23
ARTICLE V REPRESENTATIONS AND WARRANTIES OF PURCHASER.................................................. 23
Section 5.1 Corporate Organization....................................................................... 23
Section 5.2 No Violation................................................................................. 23
2
Section 5.3 Corporate Authority.......................................................................... 24
Section 5.4 Enforceable Agreement........................................................................ 24
Section 5.5 No Brokers................................................................................... 24
Section 5.6 True Statement............................................................................... 24
Section 5.7 No Suits or Proceedings...................................................................... 24
Section 5.8 Limitation of Representations and Warranties................................................. 24
ARTICLE VI OBLIGATIONS OF PARTIES PRIOR TO AND AFTER EFFECTIVE TIME..................................... 25
Section 6.1 Full Access.................................................................................. 25
Section 6.2 Delivery of Magnetic Media Records........................................................... 25
Section 6.3 Application for Approval to Effect Purchase of Assets and Assumption of Liabilities.......... 25
Section 6.4 Conduct of Business; Maintenance of Properties............................................... 26
Section 6.5 No Solicitation by Seller.................................................................... 26
Section 6.6 Further Actions.............................................................................. 26
Section 6.7 Public Announcements......................................................................... 27
Section 6.8 Tax Reporting................................................................................ 27
Section 6.9 Transition Period............................................................................ 27
Section 6.10 Processing of Closed Accounts................................................................ 27
Section 6.11 Dormant Account Assistance................................................................... 27
ARTICLE VII CONDITIONS TO PURCHASER'S OBLIGATIONS........................................................ 28
Section 7.1 Representations and Warranties True.......................................................... 28
Section 7.2 Obligations Performed........................................................................ 28
Section 7.3 No Adverse Litigation........................................................................ 28
Section 7.4 Regulatory Approval.......................................................................... 28
ARTICLE VIII CONDITIONS TO SELLER'S OBLIGATIONS........................................................... 28
Section 8.1 Representations and Warranties True.......................................................... 29
Section 8.2 Obligations Performed........................................................................ 29
Section 8.3 No Adverse Litigation........................................................................ 29
Section 8.4 Regulatory Approval.......................................................................... 29
ARTICLE IX TERMINATION.................................................................................. 29
Section 9.1 Methods of Termination....................................................................... 29
Section 9.2 Procedure Upon Termination................................................................... 30
Section 9.3 Payment of Expenses.......................................................................... 31
ARTICLE X MISCELLANEOUS PROVISIONS..................................................................... 31
Section 10.1 Amendment and Modification................................................................... 31
Section 10.2 Waiver of Extension.......................................................................... 31
Section 10.3 Assignment................................................................................... 31
Section 10.4 Addresses for Notices, Etc................................................................... 32
Section 10.5 Counterparts................................................................................. 33
Section 10.6 Headings..................................................................................... 33
Section 10.7 Governing Law................................................................................ 33
3
Section 10.8 Sole Agreement............................................................................... 33
Section 10.9 Severability................................................................................. 33
Section 10.10 Parties in Interest.......................................................................... 33
Section 10.11 No Third Party Beneficiaries................................................................. 33
Section 10.12 Consent to Jurisdiction...................................................................... 34
Section 10.13 Interpretations.............................................................................. 34
Section 10.14 Enforcement of Agreement..................................................................... 34
Section 10.15 Severability................................................................................. 35
Section 10.16 Waiver of Punitive and Other Losses and Jury Trial........................................... 35
4
PURCHASE AND ASSUMPTION AGREEMENT
THIS PURCHASE AND ASSUMPTION AGREEMENT (the "Agreement"), dated as of
March 31, 2004, is entered into by and among THE PRUDENTIAL BANK AND TRUST
COMPANY, a Georgia state bank having its principal offices in Atlanta, Georgia
("PBT"), and THE PRUDENTIAL SAVINGS BANK, F.S.B., a federal savings bank having
its principal offices in Atlanta, Georgia ("PSB"); and CITY NATIONAL BANK OF NEW
JERSEY, a national banking association having its principal offices in Newark,
New Jersey ("Purchaser").
WITNESSETH:
WHEREAS, Seller wishes to divest, upon the terms and conditions set
forth herein, certain deposit assets and certain deposit liabilities;
WHEREAS, Purchaser wishes to buy such deposit assets and assume such
deposit liabilities upon the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and mutual agreements
hereinafter set forth, Seller and Purchaser agree as follows:
ARTICLE I.A
DEFINITIONS
Capitalized terms not otherwise defined herein are defined in Appendix
A hereto. References in this Agreement to Seller mean each of PBT and PSB
individually, or PBT and PSB collectively as indicated by the context. For
example, when it is stated in this Agreement that "Seller" will sell and deliver
to Purchaser a particular Asset, such reference means that each of PBT and PSB
will sell and deliver the corresponding Asset owned by it. Likewise, each of the
representations and warranties of Seller provided herein are provided
individually by each of PBT and PSB with respect to itself and its Assets and
business, unless otherwise indicated.
ARTICLE I
TRANSFER OF ASSETS AND DEPOSIT LIABILITIES
Section 1.1 Transferred Assets. Subject to the terms and conditions of this
Agreement, and as of the Effective Time, Seller will sell, transfer, convey,
assign and deliver to Purchaser, and Purchaser will purchase from Seller, the
following (collectively referred to as the "Assets"):
(a) A sum of money equal to the Net Non-Equity CD Cash and the
Equity CD Cash, as calculated pursuant to Appendix B hereto.
(b) A sum of money equal to the Net Active MMDA Cash and the
Dormant MMDA Cash, as calculated pursuant to Appendix B
hereto. It is the intention of the Parties to this Agreement
that the amounts to be delivered by Seller to Purchaser
5
under these Sections 1.1(a) and 1.1(b) shall be calculated as
set forth in the example "Funds to be Transferred"
calculations shown on Appendix B of this Agreement.
Specifically, the Parties intend that the Pro Forma CNB Rate
(associated with footnote 1 of Appendix B) shall be selected
so as to yield a 2.10% Total Cost of CD's and MMDA's. The
attached Appendix B is for illustrative purposes only and may
not reflect actual Deposit Account information as of the
signing of this Agreement, the Closing Date or any other
period.
(c) (i) All books, records, files and other documentation in the
possession of Seller directly relating to the Deposit
Accounts, including, without limitation, all signature cards
and Deposit Contracts between Seller and the Depositors, and
records of similar character, subject to the limitations
stated below in this Section 1.1(c) (all of the foregoing is
referred to herein as the "Records").
(ii) Purchaser understands and acknowledges that (A) certain
of the Records may be available only in the form of
photocopies, film copies, or other non-original or non-paper
media; (B) the Records shall not include any records,
documentation or information whatsoever relating to deposit
accounts that are not being sold to Purchaser under this
Agreement, provided that Seller shall transfer to Purchaser
such records related to Closed Accounts as are described and
provided for Section 6.10 and Exhibit 6.10 with respect to
Purchaser's servicing of the Closed Accounts; and (C) for open
Time Deposits or open MMDA Deposits for which Seller has no
paper account application and/or signature card in its file,
the Records shall include only a paper copy of the application
and/or signature card produced by Seller from microfilmed
documents in Seller's file.
(iii) The Records also shall not include any check (originals
or copies) relating to Deposit Accounts except in those cases
where Seller has the paper original or a paper copy of such
check in its files. If after the Effective Time Purchaser
needs a copy of any check that was, prior to the Effective
Time, drawn on or deposited to a Deposit Account sold to
Purchaser under this Agreement, Purchaser may request a copy
of such check from Seller. If Seller has a microfilm, CD ROM
or other copy of the requested check, Seller will deliver such
check copy to Purchaser within a reasonable time after
Purchaser's request.
(iv) The Parties agree and acknowledge, that for all purposes
in this Agreement, including, without limitation, Seller's
representations and warranties with respect to the Records and
the completeness of the Records, and Seller's obligation to
deliver the Records to Purchaser, the "Records" do not include
the documents, checks or other items or records that
subsections (ii) and (iii) of this Section 1.1(c) provide will
not or may not be included in the Records, and the Parties
further acknowledge and agree that for all purposes in this
Agreement the Records shall be limited as to form as provided
in this Section 1.1(c).
6
(d) All of Seller's rights, ownership, and interest in and
relating to the Time Deposits and the MMDA Deposits as of the
Closing Date, including, without limitation, the deposit
account relationship with the applicable Depositor (all of the
foregoing is referred to herein as the "Deposit Accounts").
The Deposit Accounts shall not include: (i) deposits which
cannot lawfully be transferred; (ii) Seller's cashier checks
or interest checks issued prior to the Closing Date; or (iii)
closed deposit accounts.
Section 1.2 Consideration and Purchase Price
(a) As consideration for the Assets, Purchaser shall pay Seller a
purchase price equal to two and three-quarters percent (2.75%)
of the total outstanding balances of Active MMDA's (the "MMDA
Premium") as of the Effective Time and as adjusted under
Section 2.3 of this Agreement.
(b) As additional consideration for the Assets, Purchaser shall
assume, as of the Effective Time, all of the Deposit Accounts
and the related Deposit Liabilities (including all accrued
interest relating thereto); provided, that any cash items paid
by Seller and not cleared prior to the Effective Time shall be
the responsibility of Seller, subject to the terms of Section
1.3 below.
(c) Purchaser will, as of the Effective Time, (i) become the
custodian for the IRA's identified in Exhibit 4.12; (ii)
assume all duties and obligations of a custodian of individual
retirement accounts; and (iii) accept the assignment from
Seller to Purchaser of the custodial agreements between Seller
and Depositors with respect to such IRA's.
(d) Attached hereto as part of Exhibit 1.2(d) is a Balance Sheet
dated as of March 31, 2004 (the "Balance Sheet"), prepared in
accordance with banking regulations and generally accepted
accounting principles consistently applied ("GAAP"),
reflecting the total outstanding balances of Active MMDA's,
total accrued but unpaid interest on the Active MMDA's, Active
MMDA Cash, dollar amount of the MMDA Premium, Net Active MMDA
Cash, total outstanding balances of Non-Equity CD's, total
accrued but unpaid interest on Non-Equity CD's, Non-Equity CD
Cash, Net Discount (including the Discount and the Adjustment
to Discount), Net Non-Equity CD Cash, total outstanding
balance of Equity CD's, total accrued but unpaid interest on
the Equity CD's, Equity CD Cash, total outstanding balance of
Dormant MMDA's, total accrued but unpaid interest on the
Dormant MMDA's, Dormant MMDA Cash, and Net Cash to Purchaser
related to all Deposit Accounts, all as of March 31, 2004.
Notwithstanding the foregoing, the Balance Sheet dated as of
March 31, 2004 will not include information on the Dormant
MMDA's, but this information will be included in the
Pre-Closing Balance Sheet, Preliminary Post-Closing Balance
Sheet, and the Final Post-Closing Balance Sheet delivered
pursuant to this Agreement. The Balance Sheet shall include,
as a separate exhibit thereto, a statement of the total
7
number of Deposit accounts, a list containing each Time
Deposit and each MMDA Deposit, each identified by account
number, along with the corresponding balance and maturity date
of such each Time Deposit and MMDA Deposit, and specifying
which of the Deposit Accounts are insured under the Bank
Insurance Fund (BIF) and which Deposit Accounts are insured
under the Savings Association Insurance Fund (SAIF) (the
"Deposit Data"). Seller shall prepare a balance sheet (the
"Pre-Closing Balance Sheet"), in accordance with GAAP, as of a
date not earlier than 30 calendar days prior to the Effective
Time anticipated by the Parties (the "Pre-Closing Balance
Sheet Date"), reflecting the information included in the
Balance Sheet, but updated as of the Pre-Closing Balance Sheet
Date. The Pre-Closing Balance Sheet shall be based upon the
Balance Sheet with any additions, deletions and adjustments
following the date of the Balance Sheet to be made in
accordance with the terms herewith. Seller shall deliver the
Pre-Closing Balance Sheet to Purchaser no later than ten (10)
days prior to the Effective Time for Purchaser's review. If
Purchaser reasonably disputes any items set forth thereon,
then the Parties shall use their best efforts to mutually
agree on a method to resolve any disputed items. When the
Pre-Closing Balance Sheet is reasonably acceptable to Seller
and Purchaser, then Seller will pay to Purchaser at the
Closing (as defined in Section 2.1 hereof), in immediately
available funds, an amount equal to the Net Cash to Purchaser
related to all Deposit Accounts as reflected on the
Pre-Closing Balance Sheet. Amounts paid at Closing shall be
subject to subsequent adjustment based on the Final
Post-Closing Balance Sheet (as defined in Section 2.3 hereof)
as provided in Section 2.3 hereof.
The Balance Sheet, Pre-Closing Balance Sheet, Preliminary
Post-Closing Balance Sheet, and Final Post-Closing Balance
Sheet shall all be prepared in the form of Exhibit 1.2(d) of
this Agreement and shall include the Deposit Data as a
separate exhibit to such balance sheet.
Section 1.3. Deposit Liabilities
(a) "Deposit Liabilities" shall mean all of Seller's duties,
obligations and liabilities relating to the Deposit Accounts,
including, without limitation, all duties, obligations and
liabilities arising out of the account advertising and opening
process, and account maintenance and servicing; subject,
however, to Seller's indemnification obligations in Article
III. It is the intention of the Parties that Purchaser shall
be indemnified by Seller for Losses arising from the Deposit
Liabilities as provided (and on the terms stated) in Article
III.
(b) Except for those liabilities and obligations specifically
assumed by Purchaser under Section 1.2 above, Purchaser is not
assuming any other liabilities or obligations.
8
(c) Seller does not represent or warrant that any Depositors whose
Deposit Accounts are assumed by the Purchaser will become or
continue to be customers of Purchaser after the Effective
Time.
(d) Purchaser agrees to pay in accordance with law and customary
banking practices all properly drawn and presented checks,
drafts and withdrawal orders presented to Purchaser by mail,
over the counter or through the check clearing system of the
banking industry, by Depositors with respect to the Deposit
Accounts, whether drawn on the checks, withdrawal or draft
forms provided by Seller or by Purchaser, and in all other
respects to discharge, in the usual course of the banking
business, the duties and obligations of Seller with respect to
the balances due and owing to the Depositors with respect to
the Deposit Accounts.
(e) If, after the Effective Time, any Depositor, instead of
accepting the obligation of Purchaser to pay the Deposit
Liabilities assumed, shall demand payment from Seller for all
or any part of any such assumed Deposit Liabilities, Seller
shall forward to Purchaser any paper checks, drafts or
withdrawal orders presented to it relating thereto, and Seller
shall have no obligation to pay such items and shall have no
liability for not paying such items. Notwithstanding the
foregoing in this Section 1.3(e), Seller may in its discretion
pay any properly drawn and executed check, draft or order
presented for payment against an Account sold by Seller to
Purchaser under this Agreement so long as Seller first
receives written confirmation (which may be by telefacsimile)
from Purchaser that there are sufficient funds in the
depositor's account with Purchaser for payment of such item
and that Purchaser desires that Seller pay such item.
Purchaser hereby agrees that, upon such payments by Seller,
Purchaser will reimburse Seller for such payments, and Seller
shall not be deemed to have made any representations or
warranties to Purchaser with respect to any such checks,
drafts or withdrawal orders and any such representations or
warranties implied by law are hereby expressly disclaimed;
provided, however, that Seller shall seek reimbursement for
any breach of warranties or representations from a collecting
bank if requested to do so by Purchaser and shall remit any
proceeds obtained from any such claim to Purchaser. Seller and
Purchaser shall make arrangements to provide for the daily
settlement with immediately available funds by Purchaser of
checks, drafts, withdrawal orders, returns and other items
presented to and properly paid by Seller and drawn on or
chargeable to the Deposit Accounts; provided, however, that
Seller shall be held harmless and indemnified by Purchaser for
acting in accordance with such arrangements.
(f) Purchaser agrees, at its cost and expense, promptly after the
Effective Time to (1) assign new account numbers to the
Deposit Accounts, (2) notify such Depositors in a form and on
a date mutually acceptable to Seller and Purchaser (which
shall be after the Parties' receipt of all Regulatory
Approvals for the transactions contemplated by this
Agreement), of Purchaser's assumption of the Deposit Accounts
and Deposit Liabilities, and (3) furnish such Depositors with
checks on
9
the forms of Purchaser and with instructions to utilize
Purchaser's checks and to destroy unused check, draft and
withdrawal order forms of Seller. Seller will assist Purchaser
with respect to the foregoing notices by providing Purchaser
with a list of Depositors or mailing labels for the
Depositors, as requested by Purchaser. (If Purchaser so
elects, Purchaser may offer to buy from such Depositors their
unused Seller check, draft and withdrawal order forms, in
which case Purchaser shall destroy promptly any such
repurchased items.) In addition, subsequent to Regulatory
Approval, Seller will notify its affected customers by letter
of the pending assignment of the Deposit Accounts to
Purchaser, which notice shall be at Seller's cost and expense
and shall be in a form mutually agreeable to Seller and
Purchaser.
(g) Purchaser agrees to pay promptly to Seller an amount
equivalent to the amount of any checks, drafts or withdrawal
orders credited to a Deposit Account as of the Effective Time
that are returned to Seller after the Effective Time.
(h) As of the Effective Time, Purchaser will assume and discharge
Seller's duties and obligations in accordance with the terms
and conditions and laws, rules and regulations that apply to
the Deposit Accounts and the Deposit Liabilities.
(i) As of the Effective Time, Seller shall assign and transfer to
Purchaser and Purchaser will maintain and safeguard in
accordance with applicable law and sound banking practices all
Records, subject to Seller's right of access to such Records
as provided in this Agreement.
(j) Seller will render a final account statement to each Depositor
as to transactions occurring on each such Depositor's Deposit
Accounts through the Effective Time, and will comply with all
laws, rules and regulations regarding tax reporting of
transactions of such Deposit Accounts until the Effective
Time; provided, however, that Seller shall not be obligated to
render a final statement on any account not ordinarily
receiving periodic statements in the ordinary course of
Seller's business. Seller will be entitled to impose normal
fees and service charges on a per-item basis, but Seller will
not impose periodic fees or blanket charges in connection with
such final statements.
(k) Purchaser will prepare and deliver to the applicable
depositors all tax statements required with respect to all
Deposit Accounts on which interest was paid by either Seller
or Purchaser during 2004, in compliance with all laws, rules
and regulations regarding tax reporting of transactions of
such accounts. The conversion tapes delivered by Seller to
Purchaser in connection with the Closing will include all
information needed for Purchaser to prepare and deliver, on
Seller's behalf, tax statements for Deposit Accounts on which
Seller paid interest during 2004.
(l) On the Closing Date, and for a period extending sixty (60)
calendar days from the Closing Date (the "Transition Period"),
Seller will promptly forward to Purchaser
10
all items and correspondence, including without limitation,
checks, returned items, customer correspondence, and automated
clearing house ("ACH") items, related to Deposit Accounts
which are mistakenly routed or presented to Seller. Seller
will make no charge to Purchaser for forwarding such items,
and will fax, electronically transmit, or overnight mail such
data to Purchaser. Seller agrees that it promptly will return
to the presenting party all items mistakenly routed or
presented to Seller after the Transition Period. Seller agrees
that it will maintain procedures and any personnel necessary
to meet its obligations during the Transition Period.
Purchaser shall provide written address and/or routing
information to Seller for Seller's use in forwarding items and
correspondence to Purchaser under this Section, and Seller
shall be entitled to rely on such information provided by
Purchaser.
Section 1.4 Employee Matters
Purchaser does not hereby assume any liability of Seller to Seller's
employees or consultants.
Section 1.5 Records and Data Processing
(a) As of the Effective Time, Purchaser shall become responsible
for maintaining the Records referred to in this Agreement.
Purchaser will preserve and safekeep them as required by
applicable law and sound banking practice for the joint
benefit of Seller and Purchaser. In the event that Purchaser
desires to destroy any of the Records, Purchaser shall provide
written notice to Seller of such proposed destruction of
Records, specifying the types and classes of Records to be
destroyed, at least sixty (60) days prior to the proposed date
of destruction of such Records. If so requested by Seller,
Purchaser will provide Seller with copies of such Records
proposed to be destroyed, at Seller's expense.
(b) After the Effective Time, Purchaser will permit Seller and its
representatives, for reasonable cause, at Purchaser's business
hours and upon reasonable notice and at Seller's expense, to
examine, inspect, copy and reproduce any such Records as
Seller deems reasonably necessary. It is understood by the
Parties that certain of Seller's records, including certain of
the Records, may be available only in the form of photocopies,
film copies, or other non-original or non-paper media.
Section 1.6 Taxes and Fees; Proration of Certain Expenses
Purchaser shall be responsible for the payment of all fees and taxes
related to this transaction; except that (a) Purchaser shall not be responsible
for, nor have any liability with respect to, any tax liability of Seller arising
from the Deposit Accounts before the Effective Time, and Seller shall not be
responsible for any tax liabilities of Purchaser arising from the business or
operations before or after the Effective Time; (b) each of Purchaser and Seller
shall be responsible for its own attorneys' and accountants' fees and expenses
related to this
11
Agreement and the transactions contemplated thereby; (c) Seller and Purchaser
each shall pay any fees or charges, including attorneys' fees, applicable to its
filing of applications or notices required for Regulatory Approval; (d)
Purchaser shall be responsible for all FDIC insurance assessments or fees
relating to its existing deposit accounts and relating to the Deposit Accounts
after the Effective Time; (e) Seller shall be responsible for all FDIC insurance
assessments relating to the Deposit Accounts prior to the Effective Time; (f)
each of Seller and Purchaser shall be responsible for payment of its respective
conversion costs and fees; and (g) as provided in Section 9.3 of this Agreement.
Section 1.7 Form 8594
Seller and Purchaser, or its respective parent holding company in each
case, agree to complete IRS Form 8594 in accordance with Section 1060 of the
Internal Revenue Code of 1986, as amended, and agree to provide the other Party
with a copy of such Form prior to its filing with the Internal Revenue Service.
ARTICLE II
CLOSING AND EFFECTIVE TIME
Section 2.1 Effective Time
The purchase of Assets and assumption of Deposit Liabilities provided
for in this Agreement shall occur at a closing (the "Closing") to be held at the
offices of Seller in Atlanta, Georgia, at 9:00 a.m. local time on June 25, 2004;
provided, however, that if all required Regulatory Approvals have not been
received by such date or any statutory waiting period has not expired by such
date, the Closing shall occur at 9:00 a.m. on a Friday that is not a federal
holiday occurring after such Regulatory Approval and the expiration of any
statutory waiting period, at such place, time and date on which the Parties
shall mutually agree (the "Closing Date"). The effective time of the Closing
(the "Effective Time") shall be 9:00 a.m., local time, on the Closing Date.
Notwithstanding anything to the contrary in this Agreement, the Closing Date
shall be no later than September 24, 2004, and if Regulatory Approval has not
been received and all statutory waiting periods expired by such date, this
Agreement shall be terminated as provided in Section 9.1(a) hereto.
Section 2.2 Closing
(a) All actions taken and documents delivered at the Closing shall
be deemed to have been taken and executed simultaneously, and
no action shall be deemed taken nor any document delivered
until all have been taken and delivered.
(b) At the Closing, subject to all the terms and conditions of
this Agreement, Seller shall deliver to Purchaser or, in the
case of subsection (b)(3) relating to the Records, make
reasonably available to Purchaser:
12
(1) A ▇▇▇▇ of Sale, in substantially the form attached
hereto as Exhibit 2.2(b)(1) the (the "▇▇▇▇ of Sale"),
transferring to Purchaser all of Seller's interest in
the Assets and assigning to Purchaser the Deposit
Liabilities;
(2) An Assignment and Assumption Agreement, in
substantially the form attached hereto as Exhibit
2.2(b)(2) (the "Assignment and Assumption
Agreement"), assigning the Deposit Liabilities;
(3) The Records. It is understood that the Records will
be delivered by Seller immediately following the
Closing (which, pursuant to Section 2.1, shall be on
a Friday) by an overnight courier for delivery on the
day following the Closing;
(4) The Net Non-Equity CD Cash, Equity CD Cash, Net
Active MMDA Cash, and the Dormant MMDA Cash, by wire
transfer in immediately available funds, to an
account of Purchaser (as designated by Purchaser in
writing delivered to Seller at least three (3) days
prior to the Closing), in the net amount shown as
owing to Purchaser by Seller on the Closing
Statement;
(5) A certificate of a proper officer of Seller, dated as
of the date of Closing, certifying to the fulfillment
of all conditions which are the obligation of Seller
and that all of the representations and warranties of
Seller set forth in this Agreement remain true and
correct in all material respects as of the Effective
Time;
(6) Such certificates and other documents as Purchaser
and its counsel may reasonably require to evidence
the receipt by Seller of all necessary corporate and
regulatory authorizations and approvals for the
consummation of the transactions provided for in this
Agreement; and
(7) A Closing Statement, substantially in the form
attached hereto as Exhibit 2.2(b)(7), dated and
calculated as of March 31, 2004 (the "Closing
Statement").
(c) At the Closing, subject to all the terms and conditions of
this Agreement, Purchaser shall deliver to Seller:
(1) The Assignment and Assumption Agreement;
(2) A certificate and receipt acknowledging the delivery
and receipt of possession of the Assets referred to
in this Agreement, provided that with respect to the
Records, which Seller is not required to deliver at
Closing but may deliver immediately following the
Closing (which, pursuant to Section 2.1, shall be on
a Friday) by an overnight courier for delivery on the
day following the Closing, Purchaser shall deliver to
Seller the
13
certificate acknowledging delivery and receipt of
such Records upon Seller's delivery of such Records;
(3) A certificate of a proper officer of Purchaser, dated
as of the date of Closing, certifying to the
fulfillment of all conditions which are the
obligation of Purchaser and that all of the
representations and warranties of Purchaser set forth
in this Agreement remain true and correct in all
material respects as of the Effective Time;
(4) A certified copy of a resolution of the Board of
Directors, or its Executive Committee, of Purchaser
approving the purchase of the Assets and Deposit
Liabilities;
(5) Such certificates and other documents as Seller and
its counsel may reasonably require to evidence the
receipt by Purchaser of all necessary corporate and
regulatory authorizations and approvals for the
consummation of the transactions provided for in this
Agreement; and
(6) The Closing Statement.
(d) All instruments, agreements and certificates described in this
Section 2.2 shall be in form and substance reasonably
satisfactory to the Parties' respective legal counsel.
Section 2.3 Post-Closing Adjustments
(a) Not later than ten (10) calendar days after the Effective Time
(the "Post-Closing Balance Sheet Delivery Date"), Seller shall
prepare in good faith and deliver to Purchaser (i) a
preliminary balance sheet, dated as of the Effective Time and
prepared in accordance with GAAP reflecting the Assets sold
and assigned and the Deposit Liabilities transferred and
assumed hereunder, in the form of Exhibit 1.2(d) (the
"Preliminary Post-Closing Balance Sheet") and (ii) a duly
completed and executed certificate of a vice president or more
senior officer of Seller to the effect that such Preliminary
Post-Closing Balance Sheet has been prepared in accordance
with the requirements of this Agreement.
(b) The Purchaser shall have ten (10) calendar days to review the
Preliminary Post-Closing Balance Sheet and shall be entitled
to make reasonable inquiries with respect thereto of Seller
and to have access to all work papers and documentation used
by Seller in preparing the Preliminary Post-Closing Balance
Sheet. In the event of any objection concerning the
Preliminary Post-Closing Balance Sheet (or the computation or
determination of any item or amount in accordance with the
terms of this Agreement), Purchaser may notify Seller in
writing thereof at any time prior to the end of such ten (10)
calendar-day period specifying in reasonable detail the
objection and the basis therefor. In the event there is no
notice of an
14
objection within such period, the entire Preliminary
Post-Closing Balance Sheet shall be deemed to be the Final
Post-Closing Balance Sheet for purposes of this Agreement.
(c) In the event there is a notice of objection within such ten
(10) calendar-day period, Seller and Purchaser agree to
negotiate in good faith to promptly resolve any such
objection(s). Any written resolution by Seller and Purchaser
as to any objections shall be final, binding, conclusive, and
nonappealable for all purposes under this Agreement. In the
event Seller and Purchaser shall resolve all objections set
forth in the above-referenced notice (as evidenced in writing
in accordance with the previous sentence), the Preliminary
Post-Closing Balance Sheet shall be adjusted to reflect any
such resolution of objections and then shall be deemed to be
the Final Post-Closing Balance Sheet.
(d) With respect to any objection described in Section 2.3(c), if
Seller and Purchaser have not resolved all such objections (as
evidenced in writing in accordance Section 2.3(c)) on or prior
to twenty (20) calendar days after Purchaser's receipt of the
notice described in Section 2.3(b), then Seller and Purchaser
shall, on or immediately after such day, submit any remaining
objections to Ernst & Young LLP ("E&Y"), or if E&Y will not
agree to perform the services provided for herein, such other
internationally recognized firm of independent public
accountants (the "CPA Firm") mutually agreed upon between
Seller and Purchaser or, if such agreement is not made
promptly, mutually agreed upon between the accountants of
Seller and Purchaser. The CPA Firm shall, acting as experts in
accounting and not as arbitrators and only with respect to the
remaining disputed items, determine whether any adjustment is
required to the determination of the Adjustment. The CPA Firm
shall cause such determination to be made consistently with
the applicable terms of this Agreement. The CPA Firm shall
provide the Parties hereto with a draft of its determination,
and shall provide the Parties an opportunity to comment on the
draft determination before it is finalized. The Parties shall
request the CPA Firm to render its determination within
forty-five (45) calendar days of its engagement, and such
determination shall be binding and conclusive on the Parties
hereto. After such CPA Firm renders its determination, the
Preliminary Post-Closing Balance Sheet, as adjusted by the CPA
Firm, shall be deemed to be the Final Post-Closing Balance
Sheet for all purposes of this Agreement and an Adjustment
shall be paid in accordance with Section 2.2(e). The fees and
expenses of the CPA Firm shall be shared by Seller, on the one
hand, and Purchaser, on the other, pro rata based upon the
amount by which the CPA Firm's determination is in favor of
each of Seller and Purchaser, respectively, in relation to the
total amount subject to such objections.
(e) Within ten (10) calendar days after the Final Post-Closing
Balance Sheet is prepared or deemed prepared (the "Adjustment
Payment Date"), Seller and Purchaser shall effect the transfer
of any funds as may be necessary to reflect agreed upon
changes in such Assets and Deposit Liabilities between the
Pre-
15
Closing Balance Sheet and the Final Post-Closing Balance Sheet
together with interest thereon computed from the Effective
Time to the Adjustment Payment Date at the applicable Federal
Funds Rate (as hereinafter defined) (the "Adjustment"). The
Federal Funds Rate shall be the mean of the high and low rates
quoted for Federal Funds in the Money Rates Column of the Wall
Street Journal adjusted as such mean may increase or decrease
during the period between the Effective Time and the
Adjustment Payment Date.
ARTICLE III
INDEMNIFICATION
Section 3.1 Seller's Indemnification of Purchaser
Subject to the terms and conditions of this Article III, Seller shall
indemnify, defend, and hold harmless Purchaser (and each person or entity which
controls Purchaser within the meaning of Section 20(a) of the Securities
Exchange Act of 1934, as amended, or Section 15 of the Securities Act of 1933,
as amended), its subsidiaries and their respective directors, officers, agents
and employees (collectively, the "Purchaser Indemnitees") from, against, for,
and in respect of any and all claims, demands, losses, liabilities, costs and
expenses (including without limitation reasonable attorneys' fees and costs and
expenses) (collectively referred to in this Article III as a "Loss" or, in the
aggregate, "Losses") incurred by the Purchaser Indemnitees by reason of,
resulting from, based upon, or arising out of:
(a) the breach of any representation or warranty of Seller contained in
this Agreement;
(b) the breach of any covenant or agreement of Seller contained in this
Agreement; and
(c) the Deposit Liabilities and the Deposit Accounts, to the extent,
but only to the extent, based upon actions, inactions, events, or circumstances
arising or occurring on or prior to the Closing Date which (i) are not related
to legally permissible interest rates or other terms of, or fees charged on, the
Deposit Accounts or (ii) are not the result of any action or inaction of
Purchaser.
Section 3.2 Purchaser's Indemnification of Seller
Subject to the terms and conditions of this Article III, Purchaser
shall indemnify, defend, and hold harmless Seller (and each person or entity
which controls Seller within the meaning of Section 20(a) of the Securities
Exchange Act of 1934, as amended, or Section 15 of the Securities Act of 1933,
as amended), its subsidiaries and their respective directors, officers, agents
and employees (collectively, the "Seller Indemnitees") from, against, for, and
in respect of any and all Losses incurred by the Seller Indemnitees by reason
of, resulting from, based upon, or arising out of:
(a) the breach of any representation or warranty of Purchaser contained
in this Agreement;
16
(b) the breach of any covenant or agreement of Purchaser contained in
this Agreement; provided that Purchaser shall have no indemnification obligation
to the Seller Indemnitees under this Article III for any Losses incurred by the
Seller Indemnitees by reason of, resulting from, based upon, or arising out of
Purchaser's obligation to service the Closed Accounts as provided in Section
6.10 unless such Losses are incurred by reason of, result from, are based upon,
or arise out of the negligence, gross negligence or willful misconduct of
Purchaser;
(c) the Deposit Liabilities and the Deposit Accounts, to the extent,
but only to the extent, based upon actions, inactions, events, or circumstances
arising or occurring after the Closing Date which are not the result of any
action or inaction of Seller; and
(d) Seller's actions in accordance with Section 1.3(e) of this
Agreement.
Section 3.3 Indemnification Procedures
A Person entitled to indemnification hereunder shall herein be referred
to as an "Indemnitee." A Person obligated to indemnify an Indemnitee hereunder
shall herein be referred to as an "Indemnitor."
(a) Third Party Claims. Within 20 days after an Indemnitee receives
notice of any third party claim or the commencement of any action by any third
party which such Indemnitee reasonably believes may give rise to a claim for
indemnification from an Indemnitor hereunder, such Indemnitee shall, if a claim
in respect thereof is to be made against an Indemnitor under this Article III,
notify such Indemnitor in writing in reasonable detail of such claim or action
and include with such notice copies of all notices and documents (including
court papers) served on or received by the Indemnitee from such third party.
Failure to so notify the Indemnitor will not relieve the Indemnitor from any
liability for Losses under this Article III except to the extent that such
omission results in a failure of actual notice to the Indemnitor and the
Indemnitor is materially damaged as a result thereof. Upon receipt of such
notice, the Indemnitor shall be entitled to participate in such claim or action
or to assume the defense thereof, and to settle or compromise such claim or
action, provided that if the Indemnitee has elected to be represented by
separate counsel pursuant to the proviso to the following sentence, such
settlement or compromise shall be effected only with the consent of the
Indemnitee, which consent shall not be unreasonably withheld or delayed. After
notice to the Indemnitee of the Indemnitor's election to assume the defense of
such claim or action, the Indemnitor shall not be liable to the Indemnitee under
this Article III for any legal or other expenses subsequently incurred by the
Indemnitee in connection with the defense thereof. The Indemnitee shall have the
right to employ counsel to represent it if either (i) such claim or action
involves remedies other than monetary damages and such remedies, in the
Indemnitee's reasonable judgment, could have a Material Adverse Effect on such
Indemnitee or (ii) the Indemnitee may have available to it one or more defenses
or counterclaims which are inconsistent with one or more defenses or
counterclaims which may be alleged by the Indemnitor, and in any such event the
fees and expenses of such separate counsel shall be paid by the Indemnitor. If
the Indemnitor does not elect to assume the defense of such
17
claim or action within 14 calendar days of the Indemnitee's delivery of notice
of such a claim or action, the Indemnitee shall be entitled to assume the
defense thereof. Unless it has been conclusively determined through a final
judicial determination (or settlement tantamount thereto) that the Indemnitor is
not liable to the Indemnitee under this Section 3.3, the Indemnitee shall act
reasonably and in accordance with its good faith business judgment with respect
to such defense, and shall not settle or compromise any such claim or action
without the consent of the Indemnitor, which consent shall not be unreasonably
withheld or delayed. The Parties hereto agree to render to each other such
assistance as may reasonably be requested in order to insure the proper and
adequate defense of any such claim or action, including making employees
available on a mutually convenient basis to provide additional information and
explanation of any relevant materials or to testify at any proceedings relating
to such claim or action.
(b) Other Claims. Within 30 business days after an Indemnitee sustains
any Losses not involving a third party claim or action which such Indemnitee
reasonably believes may give rise to a claim for indemnification from an
Indemnitor hereunder, such Indemnitee shall deliver notice of such claim to the
Indemnitor, specifying with reasonable detail the basis on which indemnification
is being asserted and the amount of such Losses. For purposes of this Section
3(b), a Loss is "sustained" if, under GAAP, the Indemnitee would be required to
reserve for such Loss on its balance sheets. If the Indemnitor does not notify
the Indemnitee within 45 calendar days following its receipt of such notice that
the Indemnitor disputes its liability to the Indemnitee under this Article III,
such claim specified by the Indemnitee in such notice shall be conclusively
deemed a liability of the Indemnitor under this Article III and the Indemnitor
shall pay the amount of such claim to the Indemnitee on demand or, in the case
of any notice in which the amount of the claim (or any portion thereof) is
estimated, on such later date when the amount of such claim (or such portion
thereof) becomes finally determined. If the Indemnitor has timely disputed its
liability with respect to such claim, as provided above, the Indemnitor and the
Indemnitee shall proceed in good faith to negotiate a resolution of such dispute
and, if not resolved through negotiations, such dispute shall be resolved by
litigation in an appropriate court of competent jurisdiction in accordance with
Article X of this Agreement.
Section 3.4 Limitations on Indemnification
(a) Except as otherwise provided in the last sentence of this Section
3.4(a), Seller and Purchaser, respectively, shall be entitled to indemnification
for Losses under Section 3.1 or Section 3.2 only to the extent that the
aggregate amount of such Losses exceeds One Hundred Thousand Dollars
($100,000.00) (the "Threshold"). At such time as the Threshold is reached, the
Indemnitee shall be entitled to indemnification from the Indemnitor for all
Losses, including those Losses that were aggregated to reach the Threshold;
provided that in no event shall any Party be entitled to indemnification for an
aggregate amount in excess of Five Million Dollars ($5,000,000.00). Except as
otherwise provided in the last sentence of this Section 3.4(a), in no event will
Seller or Purchaser be entitled to indemnification under Section 3.1 or Section
3.2 for any Loss that individually is less than $1,000.00 and each such Loss
will not be taken into account in determining whether the aggregate amount of
Losses exceeds the Threshold. Notwithstanding the foregoing in this Section
3.4(a), there shall be no floor (threshold) or ceiling (cap) on the dollar
amount of indemnification obligations with respect to indemnification
18
provided pursuant to Sections 4.5, 5.5, or 9.3, nor with respect to Seller's
indemnification obligations relating to the litigation described on Exhibit
4.9(b)(iii) of this Agreement.
(b) The amount of any indemnifiable Loss or Losses incurred by any
Indemnitee shall be reduced by the amount such Indemnitee recovers (after
deducting all attorneys' fees, expenses and other costs of recovery) from any
insurer or other party liable for such Loss or Losses, and such Indemnitee shall
use reasonable efforts to effect any such recovery.
Section 3.5 Exclusivity of Indemnification Provision
The indemnity provided for in this Article III shall be the sole and
exclusive remedy of the Parties in connection with, arising out of, or related
to this Agreement or the transactions contemplated herein.
Section 3.6 Survival of Representations and Warranties
The representations and warranties contained in Articles IV and V of
this Agreement shall expire on the day that is 18 months after the Closing Date.
Section 3.7 Survival of Claims for Indemnification
Notwithstanding Section 3.6 or any other provision in this Agreement,
indemnification for any Loss under this Article III is expressly subject to the
delivery of proper written notice (the "Indemnification Notice") by the
Indemnitee to the Indemnitor, on or prior to the date that is 18 months after
the Closing Date (the "Indemnification Deadline"), which Indemnification Notice
states with particularity (i) the actual claim (regardless of such claim's
classification as a direct party claim or a third party claim) giving rise to
such Loss, or (ii) in absence of notice of an actual third party claim, any
matter giving rise to a potential claim for indemnification under Section 3.1(c)
or Section 3.2(c) and which has a substantial likelihood of resulting in an
indemnifiable Loss; provided, however, that (A) with respect to indemnification
for Losses arising directly from a Party's improper action or improper inaction
relating to federal, state, or local tax reporting or payment requirements
("Legal Tax Obligations"), including Seller's obligation to prepare and deliver
tax statements as provided in Section 1.3(k) of this Agreement, the
Indemnification Deadline shall be the date that is three (3) months after the
expiration of the statute of limitation contained in the tax law or regulation
which provides for the applicable Legal Tax Obligation (the "Tax Indemnification
Deadline"); (B) with respect to Purchaser's Servicing obligations under Section
6.10 and Exhibit 6.10, the Indemnification Deadline shall be the last day of the
Retention Period described in Exhibit 6.10 (the "Servicing Indemnification
Deadline"); and (C) with respect to Seller's indemnification obligations
relating to the litigation described on Exhibit 4.9(b)(iii), there shall be no
Indemnification Deadline (with the effect that Seller's indemnification
obligations shall not expire with respect to the litigation described in Exhibit
4.9(b)(iii)). The Indemnification Notice shall be in addition to any other
notice required under this Section III. With respect to any Loss incurred after
the Indemnification Deadline, after the Tax Indemnification Deadline in the case
of Losses relating to Legal Tax Obligations, or after the Servicing
Indemnification Deadline in the case of Losses relating to Servicing, for which
no
19
Indemnification Notice is given prior to the Indemnification Deadline, Tax
Indemnification Deadline, or Servicing Indemnification Deadline (as applicable),
the Parties each agree that no right of indemnification will exist as to such
Loss.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SELLER
Each of PBT and PSB, as applicable, hereby represents and warrants to
Purchaser as of the Closing Date as stated in this Article IV. These
representations and warranties shall survive the Effective Time for a period of
18 months. Each of the following representations and warranties are made by PBT
or PSB as stated in this Article IV with respect to itself and not with respect
to the other of them.
Section 4.1 Corporation Organization
(a) PBT represents and warrants that PBT is a Georgia state bank duly
organized, validly existing and in good standing under the laws of the State of
Georgia, and that PBT has the corporate power and authority to own its
properties, to carry on its business as currently conducted and to effect the
transactions contemplated herein.
(b) PSB represents and warrants that PSB is a federal savings bank duly
organized, validly existing and in good standing under the laws of the United
States, and that PSB has the corporate power and authority to own its
properties, to carry on its business as currently conducted and to effect the
transactions contemplated herein.
Section 4.2 No Violation
Each of PBT and PSB represents and warrants with respect to itself (the
"Representing Party") that: neither the execution and delivery of this
Agreement, nor the consummation of the transactions contemplated herein, will
violate or conflict with (a) the Representing Party's Charter or Bylaws; (b) any
provision of any material agreement or any other material restriction of any
kind to which the Representing Party is a party or by which the Representing
Party is bound, which would cause a material adverse effect on the Deposit
Accounts purchased from the Representing Party; or (c) any statute, law, decree,
regulation or order of any governmental authority, which would cause a material
adverse effect on the Deposit Accounts purchased from the Representing Party.
Section 4.3 Corporate Authority
Each of PBT and PSB represents and warrants with respect to itself
that: the execution and delivery of this Agreement, and the consummation of the
transactions contemplated herein, have been duly authorized by the Representing
Party's Board of Directors (or the Executive Committee thereof), and that no
further corporate authorization is necessary for the Representing Party to
consummate the transactions contemplated hereunder.
20
Section 4.4 Enforceable Agreement
Each of PBT and PSB represents and warrants with respect to itself that
this Agreement has been duly authorized, executed and delivered by the
Representing Party and is the legal, valid and binding agreement of the
Representing Party, enforceable against the Representing Party in accordance
with its terms.
Section 4.5 No Brokers
Each of PBT and PSB represents and warrants that all negotiations
relative to this Agreement and the transactions contemplated hereby have been
carried on by PBT, PSB and Purchaser, and there has been no participation or
intervention by any other person, firm or corporation employed or engaged by or
on behalf of PBT or PSB in such a manner as to give rise to any valid claim
against PBT or PSB or Purchaser for a brokerage commission, finder's fee or like
commission. PBT and PSB agree to indemnify and hold Purchaser harmless from and
against any claim for payment of such amounts. The obligations set forth in this
Section 4.5 shall survive the Closing or earlier termination of this Agreement.
Section 4.6 True Statement
Each of PBT and PSB represents and warrants with respect to itself that
neither this Agreement nor any certificate, document or other information
furnished or to be furnished to Purchaser by or on behalf of the Representing
Party in connection with this Agreement or the transactions contemplated hereby
contains or will contain any misstatement of a material fact, or omits or will
omit to state a material fact necessary in order to make the representations and
warranties and other statements herein or therein contained not misleading, in
the circumstances in which made.
Section 4.7 No Suits or Proceedings
Each of PBT and PSB represents and warrants with respect to itself that
there is no pending or, to the Representing Party's knowledge, threatened
adverse claims, suits or judicial or administrative proceedings which would
affect the transactions contemplated by this Agreement.
Section 4.8 Liens
Each of PBT and PSB represents and warrants with respect to itself that
it owns, and will convey to Purchaser at the Closing, all of the Representing
Party's right, title and interest to all of the Assets free and clear of any
claims, mortgages, liens, security interests, pledges or encumbrances of any
kind, except as set forth on Exhibit 4.8 hereto. Exhibit 4.8 lists all Deposit
Accounts that, as of the Closing Date, are subject to liens, garnishments, or
other legal process.
21
Section 4.9 Deposit Accounts and Liabilities
(a) Each of PBT and PSB represents and warrants with respect to itself,
with respect to the Deposit Liabilities of such Representing Party, that: the
Deposit Liabilities of such Representing Party are valid liabilities arising
from deposits made or CDs purchased by a Depositor; for each Deposit Account the
account balances, interest accrued and, for the Time Deposits, the maturity
dates, as shown on the Representing Party's books and records are true and
correct as of the last date shown thereon; to the Representing Party's knowledge
all purported signatures on and executions of any document in connection with
the Deposit Accounts are genuine; and to the Representing Party's knowledge all
Deposit Contracts and signature cards have actually been signed or executed by
all necessary parties and are assignable to Purchaser.
(b) Each of PBT and PSB represents and warrants, with respect to the
Deposit Accounts being sold by it under this Agreement, that as of the Closing
Date (i) such Deposit Accounts were originated, processed and serviced in
material compliance with all applicable federal and state laws and regulations;
(ii) all transactions on such Deposit Accounts were processed accurately and in
material compliance with applicable federal and state laws and regulations;
(iii) except as disclosed on Exhibit 4.9(b)(iii) of this Agreement, such Deposit
Accounts are not the subject of any actual, pending or, to the knowledge of PBT
or PSB, as applicable, threatened litigation or adverse regulatory proceeding;
(iv) except as disclosed on Exhibit 4.9(b)(iv) of this Agreement with respect to
the Prudential Bank ▇▇▇ Agreements, the terms of the Deposit Accounts materially
comply with all applicable federal and state laws and regulations, and Seller
covenants to Purchaser to correct the Prudential Bank ▇▇▇ Agreements as provided
in Exhibit 4.9(b)(iv); (v) the disclosures and other communications provided to
Depositors with respect to the Deposit Accounts materially complied with all
applicable federal and state laws and regulations; (vi) neither PBT nor PSB, as
applicable, has made any promise, agreement or commitment to any Depositor in
connection with a Deposit Account except in the ordinary course of business in
connection with the servicing of the Deposit Account and as reflected in the
Records; (vii) neither PBT nor PSB, as applicable, is in default under the terms
of any Deposit Account; (viii) the Deposit Accounts are insured by the Federal
Deposit Insurance Corporation ("FDIC") to the legal extent of such FDIC
insurance coverage, and PBT or PSB, as applicable, have paid all FDIC insurance
premiums or assessments relating to such Deposit Accounts; and (ix) neither PBT
nor PSB has any monetary obligation to any deposit brokers with respect to the
Deposit Accounts.
Section 4.10 No Other Liabilities
Each of PBT and PSB represents and warrants with respect to itself
that, to the Representing Party's knowledge, there are no other material
liabilities, contingent, direct, indirect or otherwise, affecting the Deposit
Accounts to be purchased from the Representing Party under this Agreement other
than the Deposit Liabilities.
Section 4.11 Records
22
Each of PBT and PSB represents and warrants with respect to those
Records that PBT or PSB, as applicable, will transfer and deliver to Purchaser
hereunder, that, as of the Closing Date:
(a) The Records include all information as shall be necessary to enable
Purchaser to comply with laws and regulations applicable to the Deposit
Accounts, including applicable tax withholding requirements, except for
non-material omissions or inaccuracies; and
(b) The Records are materially correct, accurate, and complete and are
maintained in a consistent and customary manner in compliance with all
applicable federal and state laws and regulations and customary banking
practices. Notwithstanding anything to the contrary in this Section 4.11, the
Records shall be limited as provided in subsections (ii) through (iv) of Section
1.1(c) of this Agreement.
Section 4.12 Individual Retirement Accounts
Exhibit 4.12 lists all Deposit Accounts that, as of the Closing Date,
are individual retirement accounts and with respect to which PBT or PSB, as
indicated in Exhibit 4.12, is acting as custodian ("IRA's").
Section 4.13 Limitation of Representations and Warranties
Except as may be expressly represented or warranted in this Agreement
by either Seller, neither Seller makes no representations or warranties
whatsoever.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to Seller as of the Closing
Date as stated in this Article V. These representations and warranties shall
survive the Effective Time for a period of 18 months.
Section 5.1 Corporate Organization
Purchaser is a national bank duly organized, validly existing, and in
good standing under the laws of the United States. Purchaser has the corporate
power and authority to own the Assets and Deposit Liabilities being acquired, to
assume the liabilities being transferred and to effect the transactions
contemplated herein.
Section 5.2 No Violation
Neither the execution and delivery of this Agreement, nor the
consummation of the transactions contemplated herein, will violate or conflict
with (a) the Charter or Bylaws of Purchaser; (b) any provision of any material
agreement or any other material restriction of any
23
kind to which Purchaser is a party or by which Purchaser is bound, which would
have a material adverse effect on Purchaser's ability to perform its obligations
under this Agreement; or (c) any statute, law, decree, regulation or order of
any governmental authority, which would have a material adverse effect on
Purchaser's ability to perform its obligations under this Agreement.
Section 5.3 Corporate Authority
The execution and delivery of this Agreement, and the consummation of
the transactions contemplated herein, have been duly authorized by the
Purchaser's Board of Directors (or Executive Committee thereof). No further
corporate authorization on the part of Purchaser is necessary to consummate the
transactions contemplated hereunder.
Section 5.4 Enforceable Agreement
This Agreement has been duly authorized, executed and delivered by
Purchaser and is the legal, valid and binding agreement of Purchaser enforceable
against Purchaser in accordance with its terms.
Section 5.5 No Brokers
All negotiations relative to this Agreement and the transactions
contemplated hereby have been carried on by Seller and Purchaser, and there has
been no participation or intervention by any other person, firm or corporation
employed or engaged by or on behalf of Purchaser in such a manner as to give
rise to any valid claim against Seller or Purchaser for a brokerage commission,
finder's fee or like commission. Purchaser agrees to indemnify and hold Seller
harmless from and against any claim for payment of such amounts. The obligations
set forth in this Section 5.5 shall survive the Closing or earlier termination
of this Agreement.
Section 5.6 True Statement
Neither this Agreement nor any certificate, document or other
information furnished or to be furnished to Seller by or on behalf of Purchaser
in connection with this Agreement or the transactions contemplated hereby
contains or will contain any misstatement of a material fact, or omits or will
omit to state a material fact necessary in order to make the representations and
warranties and other statements herein or therein contained not misleading, in
the circumstances in which made.
Section 5.7 No Suits or Proceedings
There is no pending or, to Purchaser's knowledge, threatened adverse
claims, suits or judicial or administrative proceedings which would affect the
transactions contemplated by this Agreement.
Section 5.8 Limitation of Representations and Warranties
24
Except as may be expressly represented or warranted in this Agreement
by Purchaser, Purchaser makes no representations or warranties whatsoever.
ARTICLE VI
OBLIGATIONS OF PARTIES PRIOR TO AND AFTER EFFECTIVE TIME
Section 6.1 Full Access
Seller shall afford to the officers and authorized representatives of
Purchaser, upon prior notice and subject to Seller's normal security
requirements, access to the properties, books and records pertaining to the
Deposit Accounts in order that Purchaser may have full opportunity to make
reasonable investigations, at reasonable times without interfering with the
normal business and operations of Seller or the affairs of Seller. The officers
of each of Seller and Purchaser shall furnish the other Party with a copy of all
governmental applications necessary to effect this transaction. Any additional
copies of such information shall be produced and provided at the expense of the
Party to receive such copies from the other Party. Nothing in this Section 6.1
shall require Seller to breach any obligation of confidentiality or to reveal
any proprietary information, trade secrets or marketing or strategic plans. It
is understood that certain of Seller's records may be available only in the form
of photocopies, film copies or other non-original and non-paper media.
Section 6.2 Delivery of Magnetic Media Records
Seller shall prepare at its expense and make available to Purchaser at
Seller's data processing center magnetic media records not later than thirty
(30) calendar days prior to the Conversion Date and further shall make available
to Purchaser such records updated as of the Closing Date, which records shall
contain the Records referred to in subsection 2.2(b)(3), subject to the
limitations in subsections (ii) and (iii) of Section 1.1(c). Such updated
records shall be made available at such time after Closing as agreed to by the
Parties. At its option, Seller may provide such reports in paper format instead
of magnetic media format.
Section 6.3 Application for Approval to Effect Purchase of Assets and Assumption
of Deposit Liabilities
Within fifteen (15) calendar days following the execution of this
Agreement, Purchaser shall prepare and file applications required by law with
the appropriate regulatory authorities for approval to purchase and assume the
aforesaid Assets and Deposit Liabilities and to effect in all other respects the
transactions contemplated herein; provided, however, that the Purchaser shall
not be deemed to have breached this Section 6.3 if it cannot prepare and file
such application within such fifteen (15) calendar day period due to any action
or inaction on the part of Seller. Purchaser agrees to process such applications
in a diligent manner and on a priority basis and to provide Seller promptly with
a copy of such applications as filed (except for any confidential portions
thereof) and all material notices, orders, opinions, correspondence and other
documents with respect thereto, and to use its best efforts to obtain all
necessary Regulatory Approvals. Purchaser shall promptly notify Seller upon
receipt by Purchaser of notification that any
25
Regulatory Approval has been denied. Seller shall provide such assistance and
information to Purchaser as shall be reasonably necessary for Purchaser to
comply with the requirements of the applicable regulatory authorities.
Section 6.4 Conduct of Business; Maintenance of Properties
From the date hereof until the Effective Time, Seller covenants that it
will:
(a) Carry on its business with respect to the Deposit Accounts
substantially in the same manner as on the date hereof, use
all reasonable efforts to preserve intact its current business
organization and preserve its business relationships with the
Depositors. Notwithstanding the foregoing, Seller need not, in
its sole discretion, advertise or promote new Deposit Account
relationships and shall not change interest rates paid on the
Deposit Accounts other than as appropriate, in Seller's
discretion, to match rates paid by competitors on similar
accounts;
(b) Cooperate with and assist Purchaser in assuring the orderly
transition of the Deposit Accounts and Records;
(c) Maintain its books of account and records concerning the
Deposit Liabilities in the ordinary and usual manner;
(d) Not take any action which would cause any representation or
warranty made herein to be untrue at the date of Closing; and
(e) Not make any changes in its management policies or pricing
with respect to the Deposit Accounts, unless the changes are
consistent with competitive market conditions.
Section 6.5 No Solicitation by Seller
For a period of 12 months after the Effective Time, neither Seller nor
any of Seller's affiliate banks will specifically and directly target and
solicit Depositors for certificate of deposit (time deposit) or money market
savings deposit accounts; provided, however, these restrictions shall not
restrict general mass mailings, telemarketing calls, statement stuffers and
other similar communications directed to all the current customers of Seller or
Seller's affiliates, or to the public or newspaper, radio, television or
Internet advertisements of a general nature, or otherwise prevent Seller from
taking such actions as may be required to comply with any applicable federal or
state laws, rules or regulations.
Section 6.6 Further Actions
The Parties hereto shall 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.
26
Section 6.7 Public Announcements
Seller and Purchaser agree that, from the date hereof, neither shall
make any public announcement or public comment regarding this Agreement or the
transactions contemplated herein without first consulting with the other party
hereto and reaching an agreement upon the substance and timing of such
announcement or comment; provided, however, that each Party may disclose
information relating to this transaction to the Comptroller of the Currency, the
Federal Deposit Insurance Corporation, the Office of Thrift Supervision, the
Georgia Department of Banking and Finance, the Securities and Exchange
Commission, or to other persons, as required by applicable law or regulation or
as required and necessary to consummate the transactions contemplated by this
Agreement. This provision shall survive any termination of this Agreement.
Section 6.8 Tax Reporting
Seller shall comply with all tax reporting obligations in connection
with transferred Assets and Deposit Liabilities on or before the Effective Time,
and Purchaser shall comply with all tax reporting obligations with respect to
the transferred Assets and Deposit Liabilities after the Effective Time. Nothing
in this Section 6.8 shall limit Purchaser's obligations to prepare and deliver
tax statements as provided in Section 1.3(k) of this Agreement.
Section 6.9 Transition Period
Seller shall make available to the Purchaser, on a mutually agreeable
basis, personnel for consultation and the performance of services reasonably
necessary for an orderly transition during normal business hours for a period of
sixty (60) calendar days after the Closing.
Section 6.10 Processing of Closed Accounts
Subject to Seller's delivery to Purchaser of the necessary Closed
Account Records, Purchaser covenants and agrees to service the Closed Accounts
in accordance with all federal, state and local laws, rules and regulations
applicable to the Closed Accounts and in accordance with banking industry
standards, and generally in the same manner and with the same care, skill,
prudence and diligence with which Purchaser services similar deposit accounts of
its customers, which responsibilities shall include, without limitation, the
servicing requirements listed on Exhibit 6.10 hereto.
Section 6.11 Dormant Account Assistance
For a period of one calendar year after the Effective Date, Seller
shall, or shall arrange for a third party to, assist Purchaser in complying with
obligations under state unclaimed property and/or escheatment laws ("Escheatment
Laws") with respect to the Dormant Accounts ("Dormant Account Assistance"), at
no cost to Purchaser. Such Dormant Account Assistance shall consist of (a)
tracking all Dormant Accounts and applicable Escheatment Laws and (b) notifying
Purchaser in writing of the date that the balance of any Dormant Account must be
27
escheated to a state under applicable Escheatment Laws, and of the address to
which such Dormant Account balance should be sent by Purchaser.
ARTICLE VII
CONDITIONS TO PURCHASER'S OBLIGATIONS
The obligation of Purchaser to complete the transactions contemplated
in this Agreement are conditioned upon fulfillment, on or before the Closing, of
each of the following conditions:
Section 7.1 Representations and Warranties True
The representations and warranties made by Seller in this Agreement
shall be true in all material respects on and as of the Effective Time 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 in writing by
Purchaser, and without regard to the knowledge of Seller.
Section 7.2 Obligations Performed
Seller shall (a) deliver or make available to Purchaser those items
required by Section 2.2 hereof, and (b) perform and comply in all material
respects with all obligations, conditions and agreements required by this
Agreement to be performed or complied with by it prior to or at the Effective
Time.
Section 7.3 No Adverse Litigation
As of the Effective Time, no action, suit or proceeding shall be
pending or threatened against Seller which is reasonably likely to (a)
materially and adversely affect the Deposit Accounts or (b) materially and
adversely affect the transactions contemplated herein.
Section 7.4 Regulatory Approval
(a) Purchaser shall have received all necessary Regulatory Approvals of
the transactions contemplated herein, all notice and waiting periods required by
law to pass shall have passed, no proceeding to enjoin, restrain, prohibit or
invalidate such transactions shall have been instituted or threatened, and any
conditions of any Regulatory Approval shall have been met.
(b) Such Regulatory Approvals shall not have imposed any condition
which is materially disadvantageous or burdensome to Purchaser.
ARTICLE VIII
CONDITIONS TO SELLER'S OBLIGATIONS
The obligation of Seller to complete the transactions contemplated in
this Agreement are conditioned upon fulfillment, on or before the Closing, of
each of the following conditions:
28
Section 8.1 Representations and Warranties True
The representations and warranties made by Purchaser in this Agreement
shall be true in all material respects on and as of the Effective Time 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 in writing by Seller,
and without regard to knowledge of Purchaser.
Section 8.2 Obligations Performed
Purchaser shall (a) deliver to Seller those items required by Section
2.2 hereof, and (b) perform and comply in all material respects with all
obligations, conditions and agreements required by this Agreement to be
performed or complied with by it prior to or at the Effective Time.
Section 8.3 No Adverse Litigation
As of the Effective Time, no action, suit or proceeding shall be
pending or threatened against Purchaser which might materially and adversely
affect the transactions contemplated hereunder.
Section 8.4 Regulatory Approval
(a) Seller shall have received all required Regulatory Approval of
the transactions contemplated herein, waiting periods required
by law to pass shall have passed, no proceeding to enjoin,
restrain, prohibit or invalidate such transactions shall have
been instituted or threatened, and any conditions of any
Regulatory Approval shall have been met.
(b) Such Regulatory Approvals shall not have imposed any condition
which is materially disadvantageous or burdensome to Seller.
ARTICLE IX
TERMINATION
Section 9.1 Methods of Termination
This Agreement may be terminated prior to Closing in any of the
following ways:
(a) by either Purchaser or Seller, in writing five calendar days
in advance of such termination, if the Closing has not
occurred by September 24, 2004;
(b) by either Purchaser or Seller, in writing five calendar days
in advance of such termination, if all Regulatory Approvals
have been received and all statutory waiting periods have
expired and the Closing has not occurred within ninety (90)
29
days after such Regulatory Approvals have been received and
statutory waiting periods have expired;
(c) at any time on or prior to the Effective Time by the mutual
consent in writing of Purchaser and Seller;
(d) by Purchaser in writing if (i) it is June 25, 2004 or later
and (ii) the conditions set forth in Article VII of this
Agreement were not met by Seller or waived in writing by
Purchaser within 30 calendar days following the date of all
Regulatory Approvals and after all statutory waiting periods
have expired;
(e) by Seller in writing if (i) it is June 25, 2004 or later and
(ii) the conditions set forth in Article VIII of this
Agreement were not met by Purchaser or waived in writing by
Seller within 30 calendar days following the date of all
Regulatory Approvals and after all statutory waiting periods
have expired;
(f) any time prior to the Effective Time, by Purchaser or Seller
in writing if the other shall have been in breach of any
representation and warranty in any material respect (as if
such representation and warranty had been made on and as of
the date hereof and on the date of the notice of breach
referred to below), or in breach of any covenant, undertaking
or obligation contained herein, and such breach has not been
cured by the earlier of 30 calendar days after the giving of
notice to the breaching party of such breach or the Effective
Time; provided, however, that there shall be no cure period in
connection with any breach of Section 6.3 hereof, so long as
such breach by Purchaser was not caused in whole or in part by
any action or inaction of Seller, and Seller may terminate
this Agreement immediately if regulatory applications are not
filed within fifteen (15) calendar days after the date of this
Agreement as provided in that Section; or
(g) by Seller in writing at any time after any applicable
regulatory authority has denied approval of any application of
Purchaser for approval of the transactions contemplated
herein.
Section 9.2 Procedure Upon Termination
In the event of termination pursuant to Section 9.1 hereof, and except
as otherwise stated therein, 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 having the right to
terminate.
If this Agreement is terminated as provided herein,
(a) each Party will return all documents, work papers and other
materials, including electronic data, of the other Party,
including photocopies or other duplications
30
thereof, relating to this transaction, whether 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 published in any publication for public distribution or
filed as public information with any governmental authority)
shall not at any time be used for any business purpose by such
Party or disclosed by such Party to third persons.
Section 9.3 Payment of Expenses
Should the transactions contemplated herein not be consummated because
of a Party's breach of this Agreement, in addition to such damages as may be
recoverable in law or equity, the other Party shall be entitled to recover from
the breaching Party upon demand, itemization and documentation, its reasonable
outside legal, accounting, consulting and other out-of-pocket expenses.
ARTICLE X MISCELLANEOUS PROVISIONS
Section 10.1 Amendment and Modification
This Agreement may be amended only by a subsequent writing signed by
each of the Parties upon the approval of each of the Parties.
Section 10.2 Waiver of Extension
Except with respect to required approvals of the applicable
governmental authorities, either Party, by written instrument signed by a duly
authorized officer, may extend the time for the performance of any of the
obligations or other acts of the other Party and may waive (a) any inaccuracies
in the representations and warranties contained herein or in any document
delivered pursuant hereto or (b) compliance with any of the undertakings,
obligations, covenants or other acts contained herein.
Section 10.3 Assignment
Except as expressly contemplated hereby, neither this Agreement nor any
of the rights, interests or obligations hereunder shall be assigned by any Party
hereto (whether by operation of Law or otherwise) without the prior written
consent of the other Party; provided, however, that either Party may assign this
Agreement after Closing to a third party who acquires either (a) more than fifty
percent (50%) of the voting shares of such Party or (b) substantially all of the
assets of such Party. Subject to the preceding sentence, this Agreement will be
binding upon, inure to the benefit of and be enforceable by the Parties and
their respective successors and assigns. Notwithstanding anything to the
contrary in this Agreement, Purchaser understands and acknowledges that PBT and
PSB may merge following signing of this Agreement but prior to the
31
Closing, with the effect that the survivor of the PBT and PSB merger would
assume all obligations of the non-survivor of the merger, including the
obligations under this Agreement.
Section 10.4 Addresses for Notices, Etc.
All notices, requests, demands, consents and other communications
provided for hereunder and under the related documents shall be in writing and
mailed (by registered or certified mail, return receipt requested), telegraphed,
telexed, telecopied or personally delivered (with receipt thereof acknowledged)
to the applicable party at the address indicated below:
If to Seller: c/o The Prudential Savings Bank, F.S.B.
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: Prudential Financial, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇ ▇. ReVeal
Powell, Goldstein, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to Purchaser : ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Senior Vice President
City National Bank of New Jersey
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
St. ▇▇▇▇ & ▇▇▇▇▇, L.L.C.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
or, as to each Party, at such other address as shall be designated by such Party
in a written notice to the other Party complying as to delivery with the terms
of this Section. The Parties agree that
32
facsimile of signed documents will serve as originals of such signed documents
pending delivery of the original of the document to the Party required to
receive notice hereunder.
Section 10.5 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.
Section 10.6 Headings
The captions contained in this Agreement are for reference purposes
only and are not part of this Agreement. Unless otherwise indicated, all
references to particular Articles or Sections shall mean and refer to the
referenced Articles and Sections of this Agreement.
Section 10.7 Governing Law
This Agreement will be construed, performed and enforced in accordance
with the laws of the State of Georgia without giving effect to its principles or
rules of conflict of laws thereof to the extent such principles or rules would
require or permit the application of the laws of another jurisdiction.
Section 10.8 Sole Agreement
Except as otherwise expressly provided herein, this Agreement
(including the documents and instruments referred to herein) constitutes the
entire agreement between the Parties with respect to the transactions
contemplated hereunder and supersedes all prior arrangements or understandings
with respect thereto, written or oral. Nothing in this Agreement expressed or
implied, is intended to confer upon any Person, other than the Parties or their
respective successors, any rights, remedies, obligations, or liabilities under
or by reason of this Agreement.
Section 10.9 Severability
If any provision of this Agreement is invalid or unenforceable, the
balance of this Agreement shall remain in effect.
Section 10.10 Parties in Interest
Nothing in this Agreement, express or implied, is intended or shall be
construed to confer upon or give to any person (other than the Parties hereto,
their successors and permitted assigns) any rights or remedies under or by
reason of this Agreement, or any term, provision, condition, undertaking,
warranty, representation, indemnity, covenant or agreement contained herein.
Section 10.11 No Third Party Beneficiaries
33
Except as otherwise provided in this Agreement, nothing in this
Agreement will confer any rights upon any Person that is not a Party or a
successor or permitted assignee of a Party to this Agreement. All the terms and
provisions of Section 3.1 will bind and inure to the benefit of and be
enforceable by Purchaser Indemnitees and Purchaser, respectively, and all the
terms and provisions of Section 3.2 will bind and inure to the benefit of and be
enforceable by Seller Indemnitees and PBT and PSB, respectively.
Section 10.12 Consent to Jurisdiction
(a) Each of the Parties hereby irrevocably and unconditionally submits,
for itself and its property, to the exclusive jurisdiction of any Georgia State
court or Federal court of the United States of America sitting in the Northern
district of Georgia, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Agreement or the transactions
contemplated by this Agreement or for recognition or enforcement of any judgment
relating to this Agreement, and each of the Parties hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such Georgia State court or, to the
extent permitted by Law, in such Federal court. Each of the Parties agrees that
a final judgment in any such action or proceeding will be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by Law.
(b) Each of the Parties hereby irrevocably and unconditionally waives,
to the fullest extent it may legally and effectively do so, any objection which
it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement in any Georgia State or
Federal court. Each of the Parties hereby irrevocably waives, to the fullest
extent permitted by Law, the defense of an inconvenient forum to the maintenance
of such action or proceeding in any such court.
Section 10.13 Interpretations
Neither this Agreement nor any uncertainty or ambiguity herein shall be
construed or resolved against any Party, whether under any rule of construction
or otherwise. No Party to this Agreement shall be considered the draftsman. The
Parties acknowledge and agree that this Agreement has been reviewed, negotiated,
and accepted by all Parties and their attorneys and shall be construed and
interpreted according to the ordinary meaning of the words used so as fairly to
accomplish the purposes and intentions of all Parties hereto.
Section 10.14 Enforcement of Agreement.
The Parties hereto agree that irreparable damage would occur in the
event that any of the provisions of this Agreement was not performed in
accordance with its specific terms or was otherwise breached. It is accordingly
agreed that the Parties shall be entitled to an injunction or injunctions to
prevent breaches of this Agreement and to enforce specifically the terms and
34
provisions hereof in any court of the United States or any state having
jurisdiction, this being in addition to any other remedy to which they are
entitled at law or in equity.
Section 10.15 Severability.
Any term or provision of this Agreement which is invalid or
unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective
to the extent of such invalidity or unenforceability without rendering invalid
or unenforceable the remaining terms and provisions of this Agreement or
affecting the validity or enforceability of any of the terms or provisions of
this Agreement in any other jurisdiction. If any provision of this Agreement is
so broad as to be unenforceable, the provision shall be interpreted to be only
so broad as is enforceable.
Section 10.16 Waiver of Punitive and Other Losses and Jury Trial.
(a) THE PARTIES EXPRESSLY WAIVE AND FOREGO ANY RIGHT TO RECOVER
PUNITIVE, EXEMPLARY, LOST PROFITS, CONSEQUENTIAL OR SIMILAR DAMAGES IN ANY
ARBITRATION, LAWSUIT, LITIGATION OR PROCEEDING ARISING OUT OF OR RESULTING FROM
ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
(b) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY
ARISE UNDER ANY OF THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT
ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT
IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR
INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
(c) EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (i) NO REPRESENTATIVE,
AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE
EITHER OF THE FOREGOING WAIVERS, (ii) IT UNDERSTANDS AND HAS CONSIDERED THE
IMPLICATIONS OF SUCH WAIVERS, (iii) IT MAKES SUCH WAIVERS VOLUNTARILY, AND (iv)
IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 10.16.
[Signatures Follow]
35
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
duly executed by their duly authorized officers as of the date first written
above.
THE PRUDENTIAL BANK AND TRUST COMPANY
By: _____________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: President
THE PRUDENTIAL SAVINGS BANK, F.S.B.
By: _____________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: President
CITY NATIONAL BANK OF NEW JERSEY
By: _____________________________
Name: ___________________________
Title: __________________________
APPENDIX A
DEFINITIONS
"Active MMDA's" means the MMDA Deposits except the Dormant MMDA's.
"Active MMDA Cash" means the sum of the outstanding Active MMDA balances as of
the Closing Date, plus all accrued but unpaid interest on such accounts as of
the Closing Date.
"Adjustment" has the meaning given in Section 2.3(e) of this Agreement.
"Adjustment to Discount" means the number resulting from multiplying one and
one-quarter percent.(1.25%) times the total outstanding balances of the
Non-Equity CD's as of the Closing Date.
"Adjustment Payment Date" has the meaning given in Section 2.3(e) of this
Agreement.
"Agreement" means this Purchase and Assumption Agreement and all exhibits
thereto.
"Assets" has the meaning given in Section 1.1 of this Agreement.
"Assignment and Assumption Agreement" has the meaning given in Section 2.2(b) of
this Agreement.
"Balance Sheet" has the meaning given in Section 1.2(d) of this Agreement.
"▇▇▇▇ of Sale" has the meaning given in Section 2.2(b) of this Agreement.
"Closed Accounts" means (a) those money market deposit accounts held by PBT or
held by PSB for its customers as of the Closing Date and (b) those time
deposits, whether referred to as time deposits or certificates of deposit, held
by PBT or PSB as of the Closing Date, which in either case have been closed.
"Closing" has the meaning given in Section 2.1 of this Agreement.
"Closing Date" has the meaning given in Section 2.1 of this Agreement.
"Closing Statement" has the meaning given in Section 2.2(b) of this Agreement.
"Conversion Date" means the date agreed upon by the Parties in writing as the
date on which all information necessary for Purchaser to process the Deposit
Accounts on Purchaser's computer systems will be transferred to Purchaser and
installed on Purchaser's computer systems.
"Deposit Accounts" has the meaning given in Section 1.1(d) of this Agreement.
"Deposit Contracts" means any written contract or written agreement relating to
a Time Deposit or MMDA Deposit that is in effect as of the Closing Date.
"Deposit Data" has the meaning given in Section 1.2(d) of this Agreement.
"Deposit Liabilities" has the meaning given in Section 1.3(a) of this Agreement.
"Depositor" means any owner of, and any other person authorized to engage in
transactions on, any Time Deposit or MMDA Account held by Seller as of the
Closing Date.
"Dormant Account" means any Deposit Account which, under applicable Escheatment
Laws (as defined in Section 6.11), must be escheated to a state within one
calendar year after the Effective Time.
"Dormant MMDA" means any MMDA Deposit that is a Dormant Account.
"Dormant MMDA Cash" means the sum of the total outstanding balances on all
Dormant MMDA's as of the Closing Date, plus all accrued but unpaid interest on
such accounts as of the Closing Date.
"Effective Time" has the meaning given in Section 2.1 of this Agreement.
"Equity CD's" are those Time Deposits held by either PBT or PSB that provide for
a variable rate of interest that is based on Standard & Poor's 500.
"Equity CD Cash" means the sum of the total outstanding balances on all Equity
CD's as of the Closing Date, plus all accrued but unpaid interest on such
accounts as of the Closing Date.
"Final Post-Closing Balance Sheet" means the balance sheet in the form of
Exhibit 1.2(d) of this Agreement which is deemed to be the Final Post-Closing
Balance Sheet under Sections 2.3(b), (c), or (d) of this Agreement, as
applicable.
"GAAP" has the meaning given in Section 1.2(d) of this Agreement.
"Material Adverse Effect" means, with respect to any Person, a material adverse
effect on the financial condition, results of operations or business of such
Person, taken as a whole, but excluding effects attributable to (i) the
announcement of this Agreement or the transactions contemplated hereby, (ii)
changes in general economic or market conditions or prevailing interest rates,
including, without limitation, changes affecting the industries in which such
Person operates.
"MMDA Deposits" means all of those open money market deposit accounts held by
PBT or held by PSB for its respective customers as of the Closing Date,
excluding only those accounts and account types listed in Exhibit 1.1(b) of this
Agreement.
"MMDA Premium" has the meaning given in Section 1.2(a) of this Agreement.
"Net Active MMDA Cash" means the result of the Active MMDA Cash minus the MMDA
Premium.
"Net Discount" means the result of (a) the interest remaining to be paid on the
Non-Equity CD's as of the Closing Date based on the remaining term to maturity
of each Non-Equity CD and the contract rate of each Non-Equity CD, minus (b) the
interest remaining to be paid on the Non-Equity CD's as of the Closing Date
based on the remaining term to maturity of each Non-Equity CD and the Pro Forma
CNB Rate, minus (c) the Adjustment to Discount.
"Net Non-Equity CD Cash" means the sum as of the Closing Date of the total
outstanding balance of all Non-Equity CD's, plus all accrued but unpaid interest
on Non-Equity CD's, plus the Net Discount.
"Non-Equity CD's" means all Time Deposits that are not Equity CD's.
"Party" means any of PBT, PSB or City National Bank of New Jersey as made clear
by the context, and "Parties" means all of the foregoing.
"Person" means a natural person or any legal, commercial or governmental entity,
such as, but not limited to, a corporation, general partnership, joint venture,
limited partnership, limited liability company, limited liability partnership,
trust, business association, group acting in concert, or any person acting in a
representative capacity.
"Post-Closing Balance Sheet" has the meaning given in Section 2.3(a) of this
Agreement.
"Post-Closing Balance Sheet Delivery Date" has the meaning given in Section
2.3(a) of this Agreement.
"Pre-Closing Balance Sheet" has the meaning given in Section 1.2(d) of this
Agreement.
"Pre-Closing Balance Sheet Date" has the meaning given in Section 1.2(d) of this
Agreement.
"Preliminary Post-Closing Balance Sheet" has the meaning given in Section 2.3(a)
of this Agreement.
"Pro Forma CNB Rate" means the interest rate calculated as described in Section
1.1(b) of this Agreement.
"Purchaser" means City National Bank of New Jersey.
"Records" has the meaning given in Section 1.1(c) of this Agreement.
"Regulatory Approval" means any approval by any state or federal regulatory
agency that is required for the consummation of the transactions contemplated by
this Agreement, including, if applicable, the approval of the Comptroller of the
Currency, the Federal Deposit Insurance Corporation, the Office of Thrift
Supervision, and the Georgia Department of Banking and Finance.
"Seller" means each of PBT and PSB and, collectively, both PBT and PSB.
"Tax Authority" means the Internal Revenue Service or any state or local
governmental agency or body responsible for the enforcement of federal, state or
local taxation.
"Time Deposits" means all of those open time deposits, whether referred to as
time deposits or certificates of deposit, held by PBT or held by PSB for its
respective customers as of the Closing Date, excluding only those accounts and
account types listed in Exhibit 1.1(a) of this Agreement.
"Transition Period" has the meaning given in Section 1.3(l) of this Agreement.
APPENDIX B
FUNDS TO BE TRANSFERRED
AVERAGE
RATE
ACTIVE MMDA'S (EXCLUDES DORMANT MMDA'S)
ACTIVE MMDA BALANCE $ 28,883,139 0.65%
PLUS, ACCRUED BUT UNPAID INTEREST ON ACTIVE MMDA'S AS OF CLOSING 16,121
------------
DATE
ACTIVE MMDA CASH $ 28,899,261
MMDA PREMIUM 2.75% 794,286 0.55%
Amortization Period (years) 5
-----------
Annual Premium Amortization $ 158,857
------------ ----
NET ACTIVE MMDA CASH TO PURCHASER $ 28,104,974 1.20%
------------ ----
NON-EQUITY CD'S (EXCLUDES EQUITY CD'S)
NON-EQUITY CD BALANCE $ 58,085,426
PLUS, ACCRUED BUT UNPAID INTEREST ON NON-EQUITY CD'S AS OF 5,616,275
------------
CLOSING DATE
NON-EQUITY CD CASH $ 63,701,701
(A) Remaining interest based on CD rates in effect $ 5,604,530
(B) Remaining interest based on Pro Forma CNB rates 1,853,749 1.92% (1)
-----------
Discount (A minus B) 3,750,781
Adjustment to Discount 1.25% 726,068 0.63%
Amortization period (years) 2
--------
Annual Premium Amortization $363,034
PLUS NET DISCOUNT (DISCOUNT MINUS ADJUSTMENT TO DISCOUNT) 3,024,713
------------ ----
NET NON-EQUITY CD CASH TO PURCHASER $ 66,726,414 2.55%
------------ ----
BLENDED RATE OF CD'S AND MMDA'S
Interest on CD's and MMDA's 1.50%
Premium amortization 0.60%
----
TOTAL COST OF CD'S AND MMDA'S 2.10%
----
EQUITY CD'S
EQUITY CD BALANCE $ 2,784,000
PLUS, ACCRUED BUT UNPAID INTEREST ON EQUITY CD'S AS OF $ 360,907
CLOSING DATE
------------
EQUITY CD CASH TO PURCHASER $ 3,144,907
------------
DORMANT MMDA'S
DORMANT MMDA BALANCE
PLUS, ACCRUED BUT UNPAID INTEREST ON DORMANT MMDA'S AS OF CLOSING DATE
DORMANT MMDA CASH TO PURCHASER $ 0
NET CASH TO PURCHASER RELATED TO ALL DEPOSIT $ 97,976,295
ACCOUNTS
(1) PRO FORMA CNB RATES ARE CALCULATED SUCH THAT THE "TOTAL COST OF CD'S AND
MMDA'S" EQUALS 2.10%.
SHADING INDICATES NUMBERS TO BE INPUT AT CLOSING.
PURCHASE AND ASSUMPTION AGREEMENT
Among
THE PRUDENTIAL BANK AND TRUST COMPANY,
THE PRUDENTIAL SAVINGS BANK, F.S.B.,
and
CITY NATIONAL BANK OF NEW JERSEY
EXHIBIT LIST
Exhibit No. Description
---------- -----------
1.1(a) Accounts Excluded from Time Deposits
1.1(b) Accounts Excluded from MMDA Deposits
1.2(d) Form of Balance Sheets
2.2(b)(1) Form of ▇▇▇▇ of Sale
2.2(b)(2) Form of Assignment and Assumption Agreement
2.2(b)(7) Form of Closing Statement
4.8 Schedule of Accounts Subject to Liens; Accounts subject to
Garnishments or other Legal Process
4.9(b)(iii) Schedule of litigation or adverse regulatory proceeding relating
to the Deposit Accounts;
4.9(b)(iv) Prudential Bank ▇▇▇ Agreements
4.12 Individual Retirement Accounts
6.10 Closed Account Servicing
EXHIBIT 1.1(a) - ACCOUNTS EXCLUDED FROM TIME DEPOSITS
None.
EXHIBIT 1.1(b) - ACCOUNTS EXCLUDED FROM MMDA DEPOSITS
None.
EXHIBIT 1.2(d) -- BALANCE SHEET AS OF MARCH 31, 2004
1.A. Total outstanding balances of Active MMDA's $28,883,139
1.B. Plus, accrued but unpaid interest
on Active MMDA's as of the Closing Date $ 16,121
ACTIVE MMDA CASH $28,899,261
1.C. Minus, MMDA Premium
(2.75% of line 1.A, Total outstanding
balances of Active MMDA's) $ 794,286
NET ACTIVE MMDA CASH TO PURCHASER $28,104,974
2.A. Total outstanding balances of Non-Equity CD's $58,085,426
2.B. Plus, accrued but unpaid interest
on Non-Equity CD's as of the Closing Date $ 5,616,275
NON-EQUITY CD CASH $63,701,701
2.C. Plus, Net Discount (Discount minus Adjustment
to Discount)
Discount $3,750,781
Adjustment to Discount $ 726,068
NET DISCOUNT $ 3,024,713
NET NON-EQUITY CD CASH TO PURCHASER $66,726,414
3.A. Total outstanding balance of Equity CD's $ 2,784,000
3.B. Plus, accrued but unpaid interest
on Equity CD's as of the Closing Date $ 360,907
EQUITY CD CASH TO PURCHASER $ 3,144,907
4.A. Total outstanding balance of Dormant MMDA's $__________
4.B. Plus, accrued but unpaid interest
on Dormant MMDA's as of the Closing Date $____________________
DORMANT MMDA CASH TO PURCHASER $____________________
NET CASH TO PURCHASER RELATED
TO ALL DEPOSIT ACCOUNTS $97,976,295 (excludes
Dormant MMDA's)
PURCHASE AND ASSUMPTION AGREEMENT
Among
THE PRUDENTIAL BANK AND TRUST COMPANY,
THE PRUDENTIAL SAVINGS BANK, F.S.B.,
and
CITY NATIONAL BANK OF NEW JERSEY
EXHIBIT 2.2(b)(1)
▇▇▇▇ OF SALE
THIS ▇▇▇▇ OF SALE is dated this _____ day of ____________, 2004, by
[The Prudential Bank and Trust Company] [The Prudential Savings Bank, F.S.B.]
("Seller").
WITNESSETH:
WHEREAS, Seller and City National Bank of New Jersey, a national
banking association organized under the laws of the United States ("Purchaser"),
have entered into a Purchase and Assumption Agreement dated as of March ___,
2004 (the "Agreement"), which provides for the sale by Seller to Purchaser of
certain Assets as set forth in the Agreement;
NOW, THEREFORE, Seller, for good and valuable consideration, receipt of
which is hereby acknowledged, does hereby grant, bargain, sell, assign, set
over, convey and transfer to Purchaser all of its right, title and interest in
and to all of Seller's Records.
Seller, for itself and its successors and assigns, does hereby covenant
and agree to and with Purchaser and its successors and assigns that it (i) is
seized of, and has the right to convey to Purchaser, such title to the Records
as is provided in the Agreement, (ii) will warrant and defend said title to the
Records in the manner provided in the Agreement, and (iii) shall, from time to
time, at the request of Purchaser, execute, acknowledge and deliver to Purchaser
any and all further instruments, documents, endorsements, assignments,
information, materials and other papers that may be reasonably required to
transfer the Records to Purchaser, to enable Purchaser to ▇▇▇▇, collect, service
and administer the Deposit Accounts and to give full force and effect to the
full intent and purposes of this ▇▇▇▇ of Sale. Capitalized terms used herein
shall have the meanings set forth in the Agreement.
IN WITNESS WHEREOF, Seller has caused this ▇▇▇▇ of Sale to be duly
executed by its duly authorized officers and its corporate seal to be affixed
hereto, all as of the day and year first above written.
THE PRUDENTIAL BANK AND TRUST COMPANY
By:
Name:
Title:
THE PRUDENTIAL SAVINGS BANK, F.S.B.
By:
Name:
Title:
PURCHASE AND ASSUMPTION AGREEMENT
Among
THE PRUDENTIAL BANK AND TRUST COMPANY,
THE PRUDENTIAL SAVINGS BANK, F.S.B.,
and
CITY NATIONAL BANK OF NEW JERSEY
EXHIBIT 2.2(b)(2)
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT is entered into this
_____________ day of ___________, 2004, by and among THE PRUDENTIAL BANK AND
TRUST COMPANY, a Georgia state bank having its principal offices in Atlanta,
Georgia ("PBT"), and THE PRUDENTIAL SAVINGS BANK, F.S.B., a federal savings bank
having its principal offices in Atlanta, Georgia ("PSB") (PBT and PSB are
collectively referred to herein as "Seller"); and CITY NATIONAL BANK OF NEW
JERSEY, a national banking association having its principal offices in Newark,
New Jersey.
WITNESSETH:
WHEREAS, Seller and Purchaser have entered into a Purchase and
Assumption Agreement dated as of ___, 2004 (the "Agreement"), which provides for
the assignment by Seller of all of its rights and interests in and to Deposit
Accounts and Deposit Liabilities and the assumption by Purchaser of Seller's
deposit liabilities thereunder, all as set forth in the Agreement;
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, receipt of which is hereby acknowledged by Seller
and Purchaser, Seller hereby assigns, transfers and sets over to Purchaser all
of Seller's rights and interests to, and Purchaser does hereby assume Seller's
deposit liabilities in connection with the Deposit Liabilities as provided in
the Agreement.
This Assignment and Assumption Agreement shall be binding upon, and
shall inure to the benefit of, Seller, Purchaser, and each of their successors
and assigns and shall be subject to the terms and conditions of the Agreement.
In the event of a conflict between any of the terms and provisions hereof and
the Agreement, the Agreement shall be deemed to control.
This Assignment and Assumption Agreement, and the rights and
obligations of the Parties hereunder, shall be governed by and construed in
accordance with the laws of the State of Georgia.
IN WITNESS WHEREOF, the Parties hereto have caused this Assignment and
Assumption Agreement to be executed by their duly authorized officers and their
corporate seals to be affixed hereto, all as of the day and year first above
written.
THE PRUDENTIAL BANK AND TRUST COMPANY
By:
Name:
Title:
THE PRUDENTIAL SAVINGS BANK, F.S.B.
By:
Name:
Title:
CITY NATIONAL BANK OF NEW JERSEY
By:
Name:
Title:
EXHIBIT 2.2(b)(7)
PURCHASE AND ASSUMPTION AGREEMENT
Among
THE PRUDENTIAL BANK AND TRUST COMPANY,
THE PRUDENTIAL SAVINGS BANK, F.S.B.,
and
CITY NATIONAL BANK OF NEW JERSEY
CLOSING STATEMENT
1.A. Total outstanding balances of Active MMDA's $____________________
1.B. Plus, accrued but unpaid interest
on Active MMDA's as of the Closing Date $____________________
ACTIVE MMDA CASH $____________________
1.C. Minus, MMDA Premium
(2.75% of line 1.A, Total outstanding
balances of Active MMDA's) $____________________
NET ACTIVE MMDA CASH TO PURCHASER $____________________
2.A. Total outstanding balances of Non-Equity CD's $____________________
2.B. Plus, accrued but unpaid interest
on Non-Equity CD's as of the Closing Date $____________________
NON-EQUITY CD CASH $____________________
2.C. Plus, Net Discount (Discount minus Adjustment
to Discount)
Discount $____________________
Adjustment to Discount $____________________
NET DISCOUNT $____________________
NET NON-EQUITY CD CASH TO PURCHASER $____________________
3.A. Total outstanding balance of Equity CD's $____________________
3.B. Plus, accrued but unpaid interest
on Equity CD's as of the Closing Date $____________________
EQUITY CD CASH TO PURCHASER $____________________
4.A. Total outstanding balance of Dormant MMDA's $____________________
4.B. Plus, accrued but unpaid interest
on Dormant MMDA's as of the Closing Date $____________________
DORMANT MMDA CASH TO PURCHASER $____________________
NET CASH TO PURCHASER RELATED
TO ALL DEPOSIT ACCOUNTS $____________________
CASH DUE SELLER (resulting from Adjustments
Post-Closing, if any) $____________________
Seller hereby approves the Closing Statement and acknowledges receipt
of the total cash due Seller. Purchaser hereby approves the Closing Statement,
acknowledges receipt of the net cash due Purchaser and assumes liability for
payment of all taxes and other expenses as provided for in the Purchase and
Assumption Agreement between Seller and Purchaser dated as of ____________, 2004
(the "Agreement"). Seller and Purchaser agree to make subsequent adjustments to
the extent necessary in accordance with Section 2.3 of the Agreement.
THE PRUDENTIAL BANK AND TRUST COMPANY
By:
Name:
Title:
THE PRUDENTIAL SAVINGS BANK, F.S.B.
By:
Name:
Title:
CITY NATIONAL BANK OF NEW JERSEY
By:
Name:
Title:
EXHIBIT 4.9(b)(iii)
SCHEDULE OF LITIGATION FOR DEPOSIT ACCOUNTS
On August 12, 2002, PBT and PSB were each served with a Summons and Complaint
filed against various Prudential entities. The case was brought in the US
District Court for the Southern District of Texas, Houston Division, Case No.
H-01-1981. PBT and PSB were alleged to be depositories that receive borrower
escrow funds from affiliated companies at low interest costs and then re-lend or
otherwise invest the funds for a profit. On March 11, 2003, the US District
Court remanded the case to State court. No pleadings have been filed in State
court. The case has been dormant since it was remanded to State court, and there
is no extant complaint or case number. The complaint was unspecified as to the
amount of the claim, but included claims for prejudgment and post-judgment
interest, costs of suit, attorney fees, exemplary damages, and other relief.
EXHIBIT 4.9(b)(iv)
PRUDENTIAL BANK ▇▇▇ AGREEMENTS
Articles I through VII of PBT's and PSB's the Individual Retirement Account
Custodial/Account Agreements (the "Prudential Bank ▇▇▇ Agreements") follow the
model custodial account agreement that was approved by the Internal Revenue
Service and published in Form 5305-A (as revised October 1992), with the
exception that in Article IV of the Prudential Bank ▇▇▇ Agreements there is an
incorrect reference to age "59 -1/2" instead of age "70 -1/2."
Pursuant to Section 4 of Rev. Proc. 2002-10, an updated model ▇▇▇ should have
been used to establish new IRA's after October 1, 2002. One new ▇▇▇ account was
opened by PSB after October 1, 2002, using the Prudential Bank ▇▇▇ Agreement
referred to in the preceding paragraph, account number 042-590-6525, in the name
of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇.
PBT and PSB will, prior to the Closing Date, amend and restate all the
Prudential Bank ▇▇▇ Agreements, for the IRA's to be transferred to Purchaser
under this Agreement, to comply with Articles I through VII of Form 5305-A (as
revised March 2002 or any subsequent revision thereof prior to the Closing
Date).
EXHIBIT 6.10
CLOSED ACCOUNT SERVICING
1. Closed Account Records. Seller shall deliver to Purchaser, along with
the Records delivered under the Agreement, those books, records, files and other
documentation in the possession of Seller directly relating to the Closed
Accounts, but excluding those records and other items that Seller is unable to
deliver due to privacy concerns (collectively, the "Closed Account Records").
2 Account Servicing. The servicing of Closed Accounts ("Servicing") to be
performed by Purchaser includes, but is not limited, to the following:
- Tax Inquiries - In response to tax inquiries of any Person named as an
owner of a Closed Account (a "Customer"), Purchaser will contact
Seller's Enterprise Discontinued Business Solutions ("EDBS") for copies
of any necessary tax information, including tax reports and requests
for tax corrections. Seller will provide to Purchaser, prior to
Closing, its contact information for Seller and for EDBS.
- Transaction History - Purchaser agrees to provide Customers with
transaction history for Closed Accounts, including without limitation
account statements, checks, application documents, and accounts
balances, when requested by the Customer. If transaction history is not
available in the Closed Account Records delivered to Purchaser at the
Closing Date, Purchaser will contact Seller's EDBS to request
additional research. Closed Accounts Records will not include certain
check copies, application documents and other account documents.
- Records Retention - For all Deposit Documents, Purchaser agrees to
retain all Deposit Documents consistent with Seller's document
retention period, which is the minimum of the life of the deposit
account plus seven (7) years, or such longer period as required by
Applicable Law (the "Retention Period"). "Deposit Documents" include
the Closed Account Records and any and all other documents and written
communications relating to the Closed Accounts, including, but not
limited to, application documents, customer statements, copies of
checks, and customer correspondence. Purchaser will allow Seller access
to these Deposit Documents upon request with reasonable notice.
- Records Destruction - In the event that Purchaser desires to destroy
any of the Deposit Documents, Purchaser shall provide written notice to
the EDBS of such proposed destruction of Deposit Documents, specifying
the types and classes of Deposit Documents to be destroyed, at least
sixty (60) days prior to the proposed date of destruction of such
Deposit Documents. If so requested by Seller, Purchaser will provide
the EDBS with copies of such Deposit Documents proposed to be
destroyed, at the expense of the EDBS.
- Client Inquiries - Any Customer inquiries or requests, including those
listed above, will be handled as expeditiously as reasonably possible
within 30 days but in any event within 45 days of the Customer's
request or inquiry. Resolution of Customer inquiries will include:
acknowledging receipt of inquiry to the Customer, and researching
through account records and providing the appropriate response as
determined by the research. If any Person contacts Seller with respect
to a claimed deposit account relationship with Seller, and Seller has
not provided Purchaser with any Closed Account Records with respect to
such Person or claimed account, Purchaser agrees to contact Seller,
during the Transition Period, or Seller's EDBS after the Transition
Period, using the contact information provided to Purchaser by Seller.
- Confidentiality - Purchaser must maintain the confidentiality and
privacy of all Customer information, which should only be accessed and
utilized for resolving Customer inquiries. Purchaser may disclose
Confidential Information pursuant to a court or administrative
subpoena, order or other such legal process or requirement of law, or
in defense of any claims or causes of action asserted against it;
provided, however, that Purchaser shall first notify Seller's EDBS of
such request or requirement, unless such notice is prohibited by
statute, rule or court order.
- Third Party Claims - Within 20 days after Purchaser receives notice of
any third party claim or the commencement of any action by any third
party relating to Closed Accounts, Purchaser will notify Seller's EDBS
in writing in reasonable detail of such claim or action and include
with such notice copies of all notices and documents (including court
papers) served on or received by the Purchaser from such third party.