Exhibit (10)(k)
PURCHASE AND ASSUMPTION AGREEMENT
dated as of August 18, 1995
between
NATWEST BANK N.A.
and
CITY NATIONAL BANK OF NEW JERSEY
Relating to the branch of
NatWest Bank N.A.
located in
Newark, New Jersey
TABLE OF CONTENTS
ARTICLE I
TRANSFER OF ASSETS AND ASSUMPTION OF LIABILITIES
Section
1.01 Effective Date...............................................1
1.02 Transfer of Assets and Consideration Therefor................1
1.03 Purchase of Account Loans and Loans; Servicing Agreement;
Post Closing Adjustment......................................2
1.04 Obligations of the Seller on the Effective Date..............3
1.05 Operating Agreements.........................................4
1.06 Assignment and Assumption Agreement..........................5
1.07 Certain Transitional Matters.................................5
1.08 Indemnification..............................................5
1.09 Prorata Adjustment of Branch Expenses........................6
1.10 Taxes....................................................... 6
1.11 IRAs and ▇▇▇▇▇ Plans.........................................7
1.12 Notices Regarding Operating Agreements.......................7
1.13 Consents to Transfer of Operating Agreements.................7
1.14 Notice to Branch Customers...................................7
1.15 ATM Machine..................................................7
ARTICLE II
REPRESENTATIONS. WARRANTIES AND COVENANTS OF THE SELLER
2.01 Corporate Organization and Powers............................7
2.02 No Violation.................................................7
2.03 Corporate Authority; Governmental Consents...................8
2.04 Binding Effect; Enforceability...............................8
2.05 Governmental Notices.........................................8
2.06 Finders or Brokers...........................................8
2.07 Deposit Liabilities..........................................8
3.02 No Violation.................................................8
3.03 Corporate Authority; Governmental Consents...................9
3.04 Binding Effect; Enforceability...............................9
3.05 Governmental Notices.........................................9
3.06 Finders or Brokers...........................................9
ARTICLE IV
CONDUCT OF BUSINESS PENDING THE EFFECTIVE DATE
4.01 Continuation of Business; Compliance with Law................9
ARTICLE V
CLOSING OBLIGATIONS OF PARTIES
PRIOR TO AND AFTER EFFECTIVE DATE
5.01 Time and Place of Closing....................................9
5.02 Full Access..................................................9
5.03 Requirements of Regulatory Authorities......................10
5.04 Application for Approval to Effect Purchase of
Assets and Assumption of Liabilities and to Operate Branch..10
5.05 No Use of Seller's Name; Change of Name at the Branch.......10
5.06 Further Assurances; Payment of Title and Real Estate
Transfer Costs............................................10
5.07 Right to Intervene..........................................10
5.08 Retained Assets.............................................10
5.09 Tax Allocation..............................................10
5.10 [Intentionally Omitted].....................................10
ARTICLE VI
CONDITIONS TO PURCHASER'S OBLIGATIONS
6.01 Representations and Warranties True; Obligations Performed..11
6.02 Transfer Documents; Payment of Net Consideration............11
6.03 Evidence of Corporate Action; Status Certificate............11
6.04 Opinion of Seller's Counsel.................................11
ARTICLE VII
CONDITIONS TO THE SELLER'S OBLIGATIONS
7.01 Representations and Warranties True; Obligations Performed..11
7.02 Assignment and Assumption Agreement; Bulk Assignment of
Loans.....................................................12
7.03 Evidence of Corporate Action: Status Certificate............12
7.04 Opinion of Purchaser's Counsel..............................12
ARTICLE VIII
CONDITIONS TO SELLER'S AND PURCHASER'S OBLIGATIONS
8.01 Approval of Governmental Authorities........................12
8.02 Absence of Litigation.......................................12
ARTICLE IX
TERMINATION
9.01 Methods of Termination......................................12
9.02 Automatic Termination.......................................12
9.03 Procedure Upon Termination; Effect of Termination...........12
ARTICLE X
MISCELLANEOUS PROVISIONS
10.01 Confidentiality.............................................13
10.02 Hiring of Employees.........................................13
10.03 Amendment and Modification; Entire Agreement................14
10.04 Successors and Assigns......................................14
10.05 Counterparts................................................14
10.06 Headings....................................................15
10.08 Payment of Expenses.........................................15
10.09 Choice of Law; Jurisdiction; Consent to Arbitration.........15
10.10 Addresses for Notice etc....................................16
10.11 No Third Party Beneficiaries................................16
10.12 Public Announcements........................................16
Schedules
Schedule 1 Schedule of Real Estate Encumbrances Relating to the Real
Estate and Other Assets(Section 1.02(a)(i))
Schedule 2 Schedule of Furniture, Fixtures and Equipment to be sold to
the Purchaser (Section 1.02(a)(ii))
Schedule 3 Schedule of Furniture, Fixtures and Equipment to be retained
by Seller (Section 1.02(a)(ii))
Schedule 4 Schedule of Rights and Preferences of the Preferred Stock
(Section 1.02(b))
Schedule 5 Schedule of Operating Agreements (Section 1.02(c))
Schedule 6 Schedule of Deposit Liabilities (Section 1.02(c))
Schedule 7 Schedule of Account Loans (Section 1.03(a))
Schedule 8 Schedule of Loans (Section 1.03(a))
Schedule 9 Schedule of Excluded Employees (Section 10.02(a))
Exhibits
Exhibit A Form of Servicing Agreement (Section 1.03(a))
Exhibit B Form of ▇▇▇▇ of Sale (Section 1.04(b)(i))
Exhibit C Form of Deed (Section 1.04(b)(ii))
Exhibit D-1 Form of Bulk Assignment of Loans (Section 1.04(b)(iii))
Exhibit D-2 Form of Assignment of Mortgage (Section 1.04(d))
Exhibit E Form of Assignment and Assumption Agreement (Section 1.06)
Exhibit F-1 Form of Seller's Compliance Certificate (Section 6.01(c))
Exhibit F-2 Form of Seller's Counsel Opinion (Section 6.04)
Exhibit G-1 Form of Purchaser's Compliance Certificate (Section 7.01(c))
Exhibit G-2 Form of Purchaser's Counsel Opinion (Section 7.04)
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PURCHASE AND ASSUMPTION AGREEMENT
(Southside Branch)
AGREEMENT made as of the 18th day of August, 1995, between
NatWest Bank N.A., a national banking association having its principal office at
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (the "Seller") and City
National Bank of New Jersey, a national banking association having its principal
office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (the "Purchaser");
WHEREAS, the Seller wishes to sell substantially all of the
assets of the branch office operated by it at ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇ (the "Branch") and to transfer certain liabilities relating to the
operations of the Branch; and
WHEREAS, the Purchaser wishes to buy such assets and assume
Such liabilities;
NOW, THEREFORE, IN CONSIDERATION of the premises, of the
mutual covenants contained herein, and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, it is agreed as
follows:
ARTICLE I
TRANSFER OF ASSETS AND ASSUMPTION OF LIABILITIES
1.01 Effective Date.
Except as otherwise provided herein, the closing date
(hereinafter termed the "Effective Date") shall be the date on which the closing
(the "Closing") of this transaction shall occur, which shall be a Friday and
shall be a date mutually acceptable to the Seller and the Purchaser, within five
(5) business days after the date on which all of the conditions set forth in
this Agreement shall have been satisfied or shall have been waived, or such
other time or date as the parties hereto may specify by agreement set forth in
writing, but not less than thirty (30) days after the date the Office of the
Comptroller of the Currency (the "OCC") or any other legally required regulatory
authority approves the transactions contemplated herein, or such fewer number of
days as required by such regulatory approval. The transfer of assets and
assumption of liabilities of the Branch, as set forth in this Agreement, shall
become effective, and the risk of loss in respect thereof shall pass to the
Purchaser, as of the close of business of the Branch on the Effective Date.
1.02 Transfer of Assets and Consideration Therefor.
(a) Subject to the terms and conditions of this Agreement,
Seller will sell, assign, transfer, convey and deliver to the Purchaser, on the
Effective Date:
(i) all of its right, title and interest in the real estate pertaining to the
Branch which is described on Schedule I attached hereto and made a part of this
Agreement, together with all improvements thereon and subject to the
encumbrances set forth and described on Schedule 1 (the "Real Estate");
(ii) all of its right, title and interest in and to the furniture, fixtures and
equipment located at the Branch and used in the operation of the Branch, which
is set forth on Schedule 2 attached hereto, other than the furniture, fixtures
and equipment specified in Schedule 3 attached hereto (the furniture, fixtures
and equipment transferred by the Seller to the Purchaser pursuant to this
Agreement are collectively the "Furniture and Fixtures");
(iii) all of its right, title and interest in, to and under the Account Loans
and the Loans (as defined herein); and
(iv) cash (including, cash on hand at the Branch on the Effective Date) in
an amount sufficient to further and fully offset the Liabilities (as defined
herein) assumed by the Purchaser after giving effect to the offset of such
Liabilities as more fully set forth in Section 1.04(c) hereof. (The assets
referred to in clauses (ii) through (iv) above are hereinafter collectively, the
"Other Assets").
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(b) On the Effective Date, subject to the terms and conditions
of this Agreement, in consideration for the aforesaid sale of the Real Estate,
there will be issued to the Seller or its designee, 20 shares of non-voting
preferred stock (the "Preferred Stock") in City National Bancshares Corporation
(the "Issuer") having the rights and preferences set forth on Schedule 4
attached hereto and valued at $500,000 (the "Real Estate Consideration"), which
in all respects shall be satisfactory to the Seller. The Purchaser heretofore
has made an inspection of' and has requested that the Seller make certain
repairs at, the Branch. In lieu of such repairs, on the Effective Date, the
Seller shall make available to the Purchaser cash in the amount of $115,000 (the
"Repairs Cash") to be used by the Purchaser to make Branch repairs after the
Effective Date. The Seller makes no representation or warranty of any kind,
express or implied, regarding the condition of the Branch or the Real Estate.
Additionally, the Purchaser's indemnity obligations set forth in Section 1.08(b)
hereof shall include, without limitation, any loss incurred by the Seller as a
result of the Purchaser's failure to make Branch repairs or maintain the Branch
in compliance with all applicable laws, rules and regulations.
(c) On the Effective Date, subject to the terms and conditions
of this Agreement, and in consideration for the sale of the Other Assets (i) the
Purchaser will assume and agree to pay, perform and discharge all deposit
liabilities (as defined herein) of the Seller which are reflected on the books
and records of the Seller as deposit liabilities of the Branch on the Effective
Date including, without limitation, interest accrued on the deposit liabilities
as of the Effective Date together with the obligation to pay interest in respect
of the deposit liabilities from and after the Effective Date; and (ii) the
Purchaser will assume and thereafter fully and timely perform and discharge all
of the liabilities and obligations of the Seller with respect to the Real
Estate, the Other Assets, the Branch and all agreements relating thereto
including, without limitation, agreements relating to the deposit liabilities
(as defined below) and all leases and other agreements (collectively, the
"Operating Agreements") listed on Schedule 5 attached hereto (the liabilities
and obligations described in this subsection (c) together with the Deposit
Liabilities (as defined below) are collectively, the "Liabilities").
As used in this Agreement, the term "Deposit Liabilities"
shall mean (i) all demand deposits, negotiable order of withdrawal accounts and
other transaction accounts reflected on the books and records of the Seller
relating to the Branch, not including certified checks, money orders and other
official cashier or teller checks which are outstanding and unpaid as of the
Effective Date, (ii) all time and savings deposits, including money market
deposit accounts, statement savings accounts, deposits maintained in connection
with IRAs and ▇▇▇▇▇ Plans (except as excluded pursuant to Section 1.11 hereof,
certificates of deposit, and escrow or rental security deposits reflected on the
books and records of the Seller relating to the Branch, other than escrow or
rental security deposits relating to loans or other assets not assumed by the
Purchaser, (iii) all liabilities for unpaid interest accrued in accordance with
generally accepted accounting principles on any of the Deposit Liabilities
listed above together with the obligation to pay interest in respect of such
Deposit Liabilities from after the Effective Date, and (iv) all uncollected
items included in depositors' balances and credited on the books and records of
the Seller relating to the Branch subject to final collection; provided, that
the term "Deposit Liabilities" shall not include any deposit relating to a loan
originating at the Branch which is not transferred to the Purchaser pursuant to
this Agreement. The Deposit Liabilities shall have an aggregate value as of the
Effective Date as set forth on Schedule 6 hereto.
(d) The Purchaser shall obtain the benefit of and shall bear
the risk of all items (as defined herein) relating to the Deposit Liabilities
which are in transit as of the close of business on the Effective Date. As used
in this Agreement, the term "items" shall have the meaning ascribed thereto in
Article 4 of the New Jersey Uniform Commercial Code.
1.03 Purchase of Account Loans and Loans; Servicing Agreement;
Post Closing Adjustment.
(a) The Purchaser shall have the option to purchase on the
Effective Date certain loans reflected on the books and records of the Seller.
Such loans shall consist of: (i) loans of the Seller (whether or not reflected
on the books and records of the Seller as originating at the Branch) which are
secured by Deposit Liabilities maintained at the Branch and set forth on
Schedule 7 attached hereto; (ii) loans reflected on the books and records of the
Seller as originating at the Branch created by writing a check or similar
instrument on a deposit account maintained at the Branch with respect to which
the Seller has established a line of credit and creating an overdraft on such
deposit account and set forth on Schedule 7 (the loans referred to in clause (i)
and (ii) above are hereinafter collectively, the "Account Loans"); (iii) loans
which are more fully described on Schedule 8 attached hereto (the "Special
Loans"); and (iv) residential mortgages set forth on Schedule 8 (the "Mortgage
Loans") underwritten in accordance with FNMA/FHLMC credit guidelines which will
not, in any one case (A) have original principal amounts in excess of $400,000,
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(B) have loan to value ratios in excess of 80% unless covered by private
mortgage insurance, (C) as to fixed rate loans, have initial terms in excess of
15 years, or (D) be secured by real property located outside the State of New
Jersey (the Special Loans and the Mortgage Loans are collectively, the "Loans").
The Loans shall be transferred by the Seller to the Purchaser on a servicing
retained basis. The Seller or an affiliate of the Seller (in its capacity as
Servicer, the "Servicer") shall continue to service the Loans after the
Effective Date pursuant to a servicing agreement (the "Servicing Agreement") in
the form of Exhibit A attached hereto. If the Purchaser does not purchase any
Account Loan of the type set forth herein then the related Deposit Liabilities
will not be transferred to the Purchaser pursuant to this Agreement.
(b) The Real Estate and the Other Assets shall be sold and
transferred by the Seller and purchased by the Purchaser "as is" and without any
representation or warranty whatsoever. All Account Loans and Loans (and any
notes, other evidences of indebtedness or security instruments associated
therewith) transferred to the Purchaser on the Effective Date shall be
transferred "as is" and without recourse and without any warranties or
representations whatsoever except as expressly and specifically stated in
clauses (i), (ii) and (iii) of the third sentence of subsection 1.03(d) below.
The Seller hereby disclaims any representation and warranty in respect of the
Account Loans and the Loans regarding (i) the collectability thereof or the
creditworthiness of any obligor with respect thereto, or (ii) any insolvency
proceeding instituted in respect of any such obligor. The Purchaser hereby
confirms that the Account Loans and the Loans shall be purchased based upon the
Purchaser's independent credit analysis in respect thereof and a review of such
agreements, instruments and documents as the Purchaser deems necessary in order
to make its determination regarding such purchase.
(c) The purchase price for each Loan shall be an amount equal
to the unpaid principal balance of' and accrued and unpaid interest on, such
Loan as of the Effective Date adjusted to the market value of the Loans as of
the Effective Date. The purchase price for each Account Loan shall be an amount
equal to the unpaid principal balance of' and accrued and unpaid interest on,
such Account Loan as of the Effective Date. The aggregate purchase price for all
Account Loans and Loans as set forth in the final Schedules 7 and 8 referred to
in subsection 1.03 (d) below shall be paid by offsetting such aggregate purchase
price in the manner set forth in Section 1.04(c) below.
(d) Not later than five (5) days prior to the Effective Date,
the Seller shall deliver to the Purchaser a final Schedule 7 listing the Account
Loans, specifying the name of the depositor and the outstanding principal
balance of such Account Loan. Not later than five (5) days prior to the
Effective Date, the Seller shall deliver to Purchaser a final Schedule 8 listing
the Loans, specifying the borrower, the initial principal amount, the current
interest rate, the unpaid principal amount, the loan number, and whether the
interest rate is fixed or adjustable. The Seller warrants that (i) all Loans
listed in such final schedule will be existing loans, made by Seller or a
predecessor in interest of Seller, (ii) unless otherwise specified in such final
schedule, the Seller has not delivered or received any written notice of default
or any written notice that any borrower is asserting any defenses or
counterclaims with respect to such borrower's Loan, and (iii) the information
listed in such schedule will be true, complete and correct, including any
information necessary to make the information included therein not materially
misleading. The Seller will update such information at all times prior to the
Effective Date as necessary to keep the schedule from becoming materially
misleading as to any Loan or as to all the Loans in the aggregate. The values
set forth on the final Schedules 7 and 8 relating to the Account Loans and Loans
and delivered by the Seller to the Purchaser pursuant to this subsection 1.03(d)
shall be used for purposes of the Closing on the Effective Date. Adjustments to
such values in respect of the period of time between the date of the value set
forth on such final Schedules 7 or 8, as the case may be, and the Effective Date
including, without limitation, the adjustment of the Loans to market value as of
the Effective Date shall be made by the Seller and the Purchaser within ten (10)
days following the Effective Date. The net balance due to the Seller or the
Purchaser as a result of such adjustment and the prorata adjustments pursuant to
Section 1.09 hereof shall be made to the applicable party by wire transfer of
immediately available funds on the tenth (10th) day following the Effective
Date.
1.04 Obligations of the Seller on the Effective Date.
On the Effective Date, the Seller will:
(a) deliver to the Purchaser at the Branch such of the
assets purchased as shall be capable of physical delivery including, without
limitation, all keys to the Branch;
(b) execute and deliver to the Purchaser:
(i) a ▇▇▇▇ of sale substantially in the form attached hereto as Exhibit B (the
"▇▇▇▇ of Sale");
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(ii) a bargain and sale deed without covenant substantially ii' the form
attached hereto as Exhibit C (the "Deed");
(iii) a bulk assignment of the Loans substantially in the form attached
hereto as Exhibit D-1 (the "Bulk Assignment of Loans"), which shall also be
executed by the Purchaser, thereby evidencing its receipt of ownership of the
Loans;
(c) make available to the Purchaser cash in immediately
available funds equal to (x) the sum of (i) the aggregate value of the Deposit
Liabilities as of the Effective Date (net of cash on hand at the Branch at the
close of business on the Effective Date) plus (ii) the aggregate amount of
payments due to be paid in respect of the Operating Agreements to the extent
such payments relate to periods prior to the Effective Date less (y) the sum of
(i) the purchase price for the Account Loans and the Loans set forth in the
final Schedules 7 and 8 referred to in Section I .03 above, (ii) the aggregate
amount of prepaid expenses in respect of the Branch to the extent such
prepayments relate to periods after the Effective Date, (iii) the amount of
Federal Deposit Insurance Corporation ("FDIC") insurance premiums paid and
payable by the Seller in respect of the Deposit Liabilities to the extent such
premiums relate to periods including the Effective Date or any period of time
thereafter, and (iv) the amount allocable to the Furniture and Fixtures set
forth on Schedule 2;
(d) subject to the terms of the Servicing Agreement, assign
and deliver to the Servicer all documents and records held by the Seller with
respect to any Loan being acquired by the Purchaser including, but not limited
to (i) the original note endorsed in blank without recourse, (ii) the original
recorded mortgage, (iii) the original assignment of mortgage (a copy of which
shall be delivered to Purchaser), in blank, in the form of Exhibit D-2 annexed
hereto (in each case an "Assignment of Mortgage") suitable for recording but not
recorded, (iv) the original title insurance policy, and (v) the original
mortgage insurance certificate, if applicable;
(e) deliver to the Purchaser (by means of leaving such records
at the Branch) such of the following records pertaining to the Deposit
Liabilities to be assumed by the Purchaser as exist and are available (in the
form existing whether original documentation or microfilm reproduction), except
where the Purchaser waives expressly and in writing compliance with any document
delivery contemplated hereby:
(i) Signature cards, orders and contracts
between the Seller and Branch depositors relating to the Deposit Liabilities to
be assumed by the Purchaser pursuant hereto, and records of similar character;
(ii) Deposit slips and cancelled checks or
withdrawal orders representing charges to depositors;
(iii) Records of accounts;
(iv) The form of rules and regulations applicable
to the Branch and other documents of similar character relating to the Deposit
Liabilities to be assumed by the Purchaser hereunder; and, if the Purchaser
acquires any Account Loans, all files and records pertaining to such Account
Loans. The Purchaser shall, and shall require any successors or assigns or
purchasers to whom Purchaser may sell any of the assets or liabilities purchased
and assumed pursuant hereunder to, preserve and safely keep, for as long as may
be required by applicable law (but in no event less than the applicable statute
of limitations for any claim or suit which may be asserted or commenced in
respect of the assets and liabilities purchased and assumed hereunder), all of
the files, books of account, and records referred to in this subsection 1.04 (e)
and the Purchaser will permit the Seller and its representatives to inspect and
make extracts from or copies of' any such files, books of account, or records,
during regular business hours upon reasonable notice to the Purchaser, and at
the expense of the Seller, as shall be reasonably necessary to the Seller or its
counsel for purposes of their records.
(f) Notwithstanding the foregoing, the Seller shall retain
after the Effective Date all books and records relating to the Branch which, in
accordance with its normal banking practice, are not kept at the Branch together
with copies of documents delivered pursuant to subsection 1.04(e) above.
1.05 Operating Agreements.
(a) On the Effective Date, the Seller shall assign, transfer
and deliver to the Purchaser the Operating Agreements, except where the
Purchaser waives expressly and in writing compliance with any document delivery
contemplated hereby.
(b) The Purchaser shall assume and discharge, in the usual
course of banking business, the liabilities, duties and obligations of the
Seller, from and after the Effective Date, with respect to each of the Operating
Agreements, subject to the provisions of such Operating Agreements.
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1.06 Assignment and Assumption Agreement.
To evidence (i) the assignment by the Seller of all of its
right, title and interest in, to and under the Account Loans and the Operating
Agreements and any other agreements, instruments and documents evidencing the
Liabilities; and (ii) the assumption by the Purchaser of the Seller's
performance and payment obligations in respect of the Liabilities after the
Effective Date, the Seller and the Purchaser will execute, on the Effective
Date, an assignment and assumption agreement substantially in the form of
Exhibit E attached hereto (the "Assignment and Assumption Agreement").
1.07 Certain Transitional Matters.
Following the Effective Date:
(a) The Purchaser shall pay in accordance with law all
properly drawn and presented checks, drafts and withdrawal orders presented to
the Purchaser by mail, over its counters, through any check clearing house or
otherwise, by depositors whose Deposit Liabilities are assumed by the Purchaser,
whether drawn on the checks, withdrawal or draft forms provided by the Seller,
or by the Purchaser, and in all other respects to discharge, in the usual course
of the banking business, the duties and obligations of the Seller with respect
to the balances due and owing to the depositors whose Deposit Liabilities are
assumed by the Purchaser. The Purchaser's obligation to honor checks, withdrawal
or draft forms provided by the Seller and carrying its imprint and properly
presented to the Purchaser shall expire on the later of (i) the date upon which
the Purchaser may, under applicable law, refuse to pay such check, withdrawal or
draft; or (ii) the close of business on the 210th business day following the
Effective Date.
(b) The Seller shall cooperate with the Purchaser and take all
reasonable steps requested by the Purchaser to ensure that, with respect to
checks or drafts drawn against customer accounts included in Deposit Liabilities
assumed by Purchaser, each such item that is coded for presentment to the Seller
or to any bank for the account of the Seller is available for delivery to the
Purchaser's messenger at such time and place as the parties shall agree. The
Seller shall be under no obligation with respect to any such items after their
delivery.
(c) The Purchaser agrees, at its cost and expense, as soon as
reasonably possible after the Effective Date, but in no event more than thirty
(30) days thereafter, to notify depositors of the Purchaser's assumption of
their Deposit Liabilities and to furnish each depositor of an assumed Deposit
Liability with checks on the forms of the Purchaser, with instructions to
utilize the Purchaser's checks and to destroy unused checks of the Seller as of
the Effective Date. In addition, the Purchaser agrees to notify the FDIC of the
Purchaser's assumption of the Deposit Liabilities in the form and manner
specified in Part 307 of the FDIC's regulations (12 C.F.R. Part 307(1989)).
(d) The Purchaser agrees to pay to the Seller, not later than
the start of the fifth (5th) business day after demand by the Seller, an amount
equal to the amount of any uncollected item in respect of a Deposit Liability
assumed by Purchaser which is returned after the Effective Date as not
collected.
(e) If the balance due on any Account Loan purchased pursuant
hereto has been reduced by the Seller as a result of a payment of an item
received prior to the Effective Date, which item is returned after the Effective
Date as uncollected, the asset value represented by the Account Loan transferred
shall be correspondingly increased and an amount in cash equal to such increase
shall be paid by the Purchaser to the Seller after the Effective Date no later
than five (5) business days after demand therefor by the Seller.
(f) If the Seller receives after the Effective Date any
payment in respect of principal or interest on an Account Loan that has been
purchased by the Purchaser pursuant hereto, the Seller shall promptly (and in
any event within five (5) business days after receipt thereof) remit such
payment to the Purchaser.
1.08 Indemnification.
(a) The Seller shall indemnify, hold harmless and defend
Purchaser from and against all claims, losses, liabilities, demands and
obligations, including reasonable legal fees and expenses, real estate, sales
and use, social security and unemployment taxes and other taxes payable by the
Seller pursuant to Section 1.10 hereof and the tax filings referred to in
Section 5.09 hereof all accounts payable and operating expenses (including
salaries, rents, and utility charges) which Purchaser may receive, suffer or
incur as a result of or in connection with (i) any breach of the Seller's
covenants under this Agreement, or of any representation or warranty made by the
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Seller or any of its officers under this Agreement or in any certificate
delivered by the Seller or any of its officers to the Purchaser hereunder, (ii)
operations and transactions relating to the Branch and occurring prior to the
Effective Date, and (iii) any actions, suits or proceedings arising out of
operations at the Branch prior to the Effective Date. The Purchaser will give
the Seller written notice of a threatened or pending claim, action, suit or
proceeding within twenty (20) calendar days (except in the case where the
Purchaser's first notice is its receipt of (A) an order to show cause in which
case such time for giving notice shall be at least one (1) day prior to the
return date thereof' or (B) the summons and complaint commencing a legal action
in which case such notice shall be given promptly but in any event within ten
(10) days) of its learning about such threatened or pending claim, action, suit
or proceeding, together with a statement of facts known to it regarding such
threatened or pending claim, action, suit or proceeding. In connection with any
such third party claim, the Seller may, at its expense, select counsel
reasonably satisfactory to the Purchaser for the purpose of defending any such
third party claim. The Seller will be given the Purchaser's full cooperation and
assistance in maintaining the defense of such claim. The Seller shall not be
liable for any amounts in settlement of a claim, action, suit or proceeding as
described above if such settlement is effected without the Seller's written
consent, which consent shall not be unreasonably withheld. It is understood that
the obligations of the Seller under this subsection 1.08 (a) shall survive the
Effective Date.
(b) The Purchaser shall indemnify, hold harmless and defend
the Seller from and against all claims, losses, liabilities, demands and
obligations, including reasonable legal fees and expenses, real estate, sales
and use, social security and unemployment taxes and other taxes payable by the
Purchaser pursuant to Section 1.10 hereof and the tax filings referred to in
Section 5.09 hereof' all accounts payable and operating expenses (including
salaries, rents and utility charges) which the Seller may receive, suffer or
incur as a result of or in connection with (i) the failure of the Purchaser to
duly discharge (in accordance with all applicable leases, agreements, laws,
rules or regulations) the duties, liabilities and obligations of the Seller
assumed by the Purchaser pursuant to this Agreement, (ii) any breach of the
Purchaser's covenants under this Agreement, or of any representation or warranty
made by the Purchaser or any of its officers in this Agreement or in any
certificate delivered by the Purchaser or any of its officers to the Seller
hereunder, (iii) operations and transactions relating to the Branch and
occurring on or after the Effective Date and (iv) any actions, suits or
proceedings arising out of operations at the Branch on or after the Effective
Date. The Seller will give the Purchaser written notice of a threatened or
pending claim, action, suit or proceeding within twenty (20) calendar days
(except in the case where the Seller's first notice is its receipt of (A) an
order to show cause in which case such time for giving notice shall be a least
one (1) day prior to the return date thereof' or (B) the summons and complaint
commencing a legal action, in which case such notice shall be given promptly but
in any event within ten (10) days) of its learning about such threatened or
pending claim, action, suit or proceeding, together with a statement of facts
known to it regarding such threatened or pending claim, action, suit or
proceeding. In connection with any such third party claim, the Purchaser may, at
its expense, select counsel reasonably satisfactory to the Seller for the
purpose of defending any such third party claim. The Purchaser will be given the
Seller's full cooperation and assistance in maintaining the defense of such
claim. The Purchaser shall not be liable for any amounts in settlement of a
claim, action, suit or proceeding as described above if such settlement is
effected without the Purchaser's written consent, which consent shall not be
unreasonably withheld. It is understood that the obligations of the Purchaser
under this subsection 1.08 (b) shall survive the Effective Date.
1.09 Prorata Adjustment of Branch Expenses.
All rents, real property taxes, utility payments and similar
expenses relating to the Branch together with other expenses relating to the
Branch including, without limitation, FDIC insurance premiums at the rate paid
and payable by the Seller and all charges under Operating Agreements, shall be
prorated between the parties as of the close of business of the Branch on the
Effective Date.
1.10 Taxes.
(a) All transfer taxes imposed as a result of the sale of the
Real Estate shall be payable by the Seller. All sales/use taxes imposed as a
result of the sale of the Other Assets shall be payable by the Purchaser. Any
other excise taxes on Real Estate and Other Assets that are payable or arise as
a result of this Agreement or the consummation of the transactions contemplated
by this Agreement shall be shared equally by Purchaser and Seller, whether or
not such taxes are imposed, under applicable law, upon Purchaser or Seller.
(b) The Purchaser shall prepare and timely file all bulk sales
tax returns required in connection with the transactions contemplated hereunder
and shall pay all taxes due in connection therewith.
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(c) Commencing on the Effective Date and at all times
thereafter, the Purchaser shall comply with all reporting and withholding
requirements under applicable law in respect of interest on Deposit Liabilities
and the Seller shall have no further obligation or liability in respect thereof.
1.11 IRAs and ▇▇▇▇▇ Plans.
Within such period prior to the Effective Date as is required
by applicable law, regulation or contractual obligation, the Seller shall, at
its cost and expense, resign as trustee or custodian of each ▇▇▇ and ▇▇▇▇▇ plan
to be acquired by the Purchaser for which plan the Seller serves as trustee or
custodian. The Seller shall use its best efforts to cause the Purchaser to be
appointed as successor trustee or custodian for each such ▇▇▇ and ▇▇▇▇▇ Plan.
Any deposit under any ▇▇▇ or ▇▇▇▇▇ plan for which the Purchaser is not appointed
successor trustee or custodian shall be excluded from the Deposit Liabilities.
1.12 Notices Regarding Operating Agreements.
The Seller shall give all notices and take all other
appropriate actions, including actions required by applicable law, in connection
with the Seller's assignment of and the Purchaser's assumption of the
Liabilities with respect to the Operating Agreements and such notice shall be
prepared in consultation with the Purchaser.
1.13 Consents to Transfer of Operating Agreements.
In connection with the transfer and assignment of the
Operating Agreements to the Purchaser, the Seller shall, to the extent required
by the applicable Operating Agreements, make its best efforts to obtain all
consents of third parties necessary to consummate the transactions contemplated
hereunder or to prevent a breach or default under any such Operating Agreements.
If the Seller is unable to obtain a required consent under any Operating
Agreement, the Seller shall cooperate with the Purchaser to obtain for the
Purchaser, at the Purchaser's cost, the benefits under such Operating Agreement,
including enforcement of any and all rights of the Seller against the other
party or parties thereto.
1.14 Notice to Branch Customers.
Subject to the imposition by the OCC or any other regulatory
agency of a shorter period of time within which the Closing must take place, at
least thirty (30) days prior to the Effective Date, all customers of the Branch
shall be notified of the transactions contemplated hereby to the extent
applicable to such customers; aided, that no such notice shall be given unless
both the Purchaser and the Seller shall consent to the text and timing of such
notice prior to its release.
1.15 ATM Machine.
On or prior to the Effective Date, the Seller shall have
installed at the Branch an automatic teller machine ("ATM Machine"). The ATM
Machine shall operate in a manner sufficient to permit Branch customers to
effect banking transactions similar to those effected by other automatic teller
machines owned and operated by the Seller, but Seller makes no warranty, and
shall have no obligation in respect of' the operation or condition of the ATM
Machine after the Effective Date.
ARTICLE II
REPRESENTATIONS. WARRANTIES AND COVENANTS OF THE SELLER
The Seller hereby represents, warrants and covenants to the Purchaser
as follows:
2.01 Corporate Organization and Powers.
The Seller was duly organized and is validly existing and in
good standing under the laws of the United States of America. The Seller has the
corporate power and authority to own its properties, to execute, deliver and
perform this Agreement and all other instruments and documents it is required to
execute hereunder, to effect the transactions contemplated hereby and carry on
its business as presently conducted. The Seller is a member of the Federal
Reserve System. The Seller's deposits are insured by the FDIC.
2.02 No Violation.
Neither the execution and delivery of this Agreement, nor the
consummation of this sale, will violate or conflict with, or constitute a
default under (i) the Articles of Association or Bylaws of the Seller, (ii) any
provision of any agreement or any other restriction of any kind to which the
Seller is a party or by which the Seller is bound or (iii) any statute, law,
decree, rule, regulation or order of any governmental authority once the
governmental consents referred to in this Agreement are obtained.
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2.03 Corporate Authority; Governmental Consents.
The execution and delivery of this Agreement, and the
consummation of the transactions contemplated by this Agreement, have been duly
authorized by the Executive Committee of the Board of Directors of the Seller.
No further corporate authorization on the part of the Seller, and no additional
corporate consent or approval is necessary to consummate the transactions
contemplated hereby. No consent, waiver, approval or other authorization of' or
registration, declaration or filing with, any court, governmental agency or
commission is required for the valid execution and delivery by the Seller of
this Agreement, or for the validity or enforceability of this Agreement against
the Seller or for the payment of any amounts by the Seller hereunder, other than
those that have been or will be applied for on or prior to the Effective Date.
2.04 Binding Effect; Enforceability.
This Agreement constitutes, and, upon its execution by the
Seller, each of the ▇▇▇▇ of Sale, the Assignment and Assumption Agreement, the
Deed, the Bulk Assignment of Loans and the Assignments of Mortgage will
constitute, the legal, valid and binding obligations of the Seller, enforceable
against the Seller in accordance with their respective terms, except as such
enforceability maybe limited by judicial discretion, applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws, now or hereafter
in effect, relating to or affecting the enforcement of creditors' rights
generally, or by principles of equity.
2.05 Governmental Notices.
The Seller has not received notice from any federal or state
governmental agency indicating that it would oppose or not grant or issue any
consent or approval required with respect to the transactions contemplated by
this Agreement.
2.06 Finders or Brokers.
The Seller has not dealt with any broker, finder or other
intermediary in connection with this Agreement or the transactions contemplated
hereby.
2.07 Deposit Liabilities.
To the best of the Seller's knowledge (a) the amounts set
forth on Schedule 6 are the current balances in the accounts representing the
Deposit Liabilities; and (b) the existing signature cards relating to accounts
representing Deposit Liabilities reflect the current owners of such accounts.
2.08 Limitation of Warranties.
Except as may be expressly and specifically represented or
warranted in this Agreement by the Seller, the Seller makes no representations
or warranties whatsoever implied or otherwise with regard to any asset being
transferred to the Purchaser, or liability or obligation being assumed by the
Purchaser.
ARTICLE III
REPRESENTATIONS. WARRANTIES AND COVENANTS OF THE PURCHASER
The Purchaser hereby represents, warrants and covenants to the
Seller as follows:
3.01 Corporate Organization: Preferred Stock.
The Purchaser is a national bank duly organized, validly
existing and in good standing under the laws of the United States. The Purchaser
has the corporate power and authority to own its properties, to execute, deliver
and perform this Agreement and all other instruments and documents it is
required to execute hereunder, to effect the transaction contemplated hereby and
to carry on its business as presently conducted and as proposed to be conducted
at the Branch from and after the Effective Date. The Purchaser is a member of
the Federal Reserve System. The Purchaser's deposits are insured by the FDIC.
The Preferred Stock has been validly issued, is fully paid and non-assessable
and has the rights and preferences set forth in Schedule 4.
3.02 No Violation.
Neither the execution and delivery of this Agreement, nor the
consummation of this sale, will violate or conflict with, or constitute a
default under (i) the Charter or the By-laws of the Purchaser, (ii) any
provision of any agreement or any other restriction of any kind to which the
Purchaser is a party or by which the Purchaser is bound, or (iii) any statute,
law, decree, rule regulation or order of any governmental authority once the
governmental consents referred to in this Agreement are obtained.
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3.03 Corporate Authority; Governmental Consents.
The execution and delivery of this Agreement, and the
consummation of the transactions contemplated by this Agreement, have been duly
authorized by the Board of Directors and, in respect of the issuance of the
Preferred Stock and to the extent necessary, the Board of Directors and the
shareholders of the Issuer. No further corporate authorization on the part of
the Purchaser or the Issuer, and no additional corporate consent or approval is
necessary to consummate the transactions contemplated hereby. No consent,
waiver, approval or other authorization of' or registration, declaration or
filing with, any court, governmental agency or commission is required for the
valid execution and delivery by the Purchaser of this Agreement, or for the
validity or enforceability of this Agreement against the Purchaser or for the
payment of any amounts by the Purchaser hereunder, other than those that have
been or will be applied for on or prior to the Effective Date.
3.04 Binding Effect; Enforceability.
This Agreement constitutes, and, upon its execution by the
Purchaser, the Assignment and Assumption Agreement and the Bulk Assignment of
Loans will constitute, the legal, valid and binding obligations of the
Purchaser, enforceable against the Purchaser in accordance with their respective
terms, except as such enforceability may be limited by judicial discretion,
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws, now or hereafter in effect, relating to or affecting the enforcement of
creditors' rights generally, or by principles of equity.
3.05 Governmental Notices.
The Purchaser has not received notice from any federal or
state governmental agency indicating that it would oppose or not grant or issue
any consent or approval required with respect to the transactions contemplated
by this Agreement.
3.06 Finders or Brokers.
The Purchaser has not dealt with any broker, finder or other
intermediary in connection with this Agreement or the transactions contemplated
hereby.
ARTICLE IV
CONDUCT OF BUSINESS PENDING THE EFFECTIVE DATE
Pending the Effective Date, and except as otherwise consented
to by the Purchaser:
4.01 Continuation of Business; Compliance with Law.
The Seller will carry on the business of the Branch in the
ordinary course of the business as conducted as of the date hereof except for
activities or transactions contemplated by this Agreement and will comply in all
respects with laws pertaining to the business and operation of the Branch.
ARTICLE V
CLOSING OBLIGATIONS OF PARTIES PRIOR TO AND AFTER EFFECTIVE DATE
5.01 Time and Place of Closing.
The closing of the purchase and assumption contemplated by
this Agreement shall take place at 10:00 A.M. on the Effective Date at the
offices of the Seller at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇.
Notwithstanding the actual time of closing, the purchase, sale, assignments,
assumptions and transfers made at closing shall be effective as of the close of
business of the Branch on the Effective Date.
5.02 Full Access.
Prior to the Effective Date, the Seller shall afford to the
officers and authorized representatives of the Purchaser during normal business
hours and upon reasonable notice, reasonable access to the Branch and to the
properties, books and records pertaining to the Branch, and shall permit the
Purchaser to make, at the sole cost and expense of the Purchaser, extracts from
and copies of such books and records, and the officers of the Seller will
furnish the Purchaser with such additional financial and operating data and
other information as to its business and properties at the Branch as the
Purchaser shall from time to time reasonably request and as shall be available,
including, without limitation, information required for inclusion in all
governmental applications necessary to effect the transactions contemplated by
this Agreement. Nothing in this Section 5.02 shall be deemed to require the
Seller to breach any obligation of confidentiality. The Purchaser shall treat
all information so obtained by it as confidential in accordance with Section
10.01 hereof.
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5.03 Requirements of Regulatory Authorities.
The Seller shall cooperate with the Purchaser in all
reasonable respects in obtaining the regulatory approvals necessary to effect
the transactions contemplated by this Agreement and to notify any regulatory
authorities of such transactions, to the extent the Seller is required to do so.
5.04 Application for Approval to Effect Purchase of
Assets and Assumption of Liabilities and to Operate Branch.
The Purchaser shall prepare and file, with the assistance of
the Seller, as soon as practicable (but not later than 30 days following the
date of this Agreement) all applications required by law or regulation with the
appropriate Federal and/or State regulatory authorities for approval to effect
the transactions contemplated by this Agreement, and the parties hereto shall,
if required by applicable statute or regulation, publish appropriate notice of
such transaction. The parties agree to use their good faith efforts to obtain
such approval and the Purchaser further agrees to pursue the application in a
diligent manner and on a priority basis. The Purchaser agrees that it shall pay
the regulatory authority application fees, if any. The Purchaser shall (i)
furnish to the Seller a copy of the public portion of each application proposed
to be filed by the Purchaser with any Federal or State regulatory authority in
connection with this Agreement or the consummation of the transactions
contemplated hereby, and a copy of any portion of such application which relates
to or contains information obtained from the Seller, (ii) notify the Seller,
promptly after it files each application or notice required by law or regulation
for the consummation of the transactions contemplated hereby, of the date of
such filing and (iii) furnish to the Seller, promptly after receipt thereof by
the Purchaser, a copy of each regulatory consent or approval required for the
consummation of the transactions contemplated hereby.
5.05 No Use of Seller's Name; Change of Name at the Branch.
From and after the Effective Date, the Purchaser shall not use
any name, trademark, trade name, service ▇▇▇▇, logo or symbol of the Seller and,
to the extent not previously effected by the Seller, the Purchaser shall
promptly change all signs and other identifying names, logos and marks on all
facilities relating to the Branch to reflect its transfer to the Purchaser and
shall discontinue the use of documents and instruments (including checks)
bearing the name of the Seller. It is understood and agreed that the Seller is
not transferring to the Purchaser any right, title or interest in or to, or any
right or license to use, any name, trademark, trade name, service ▇▇▇▇, logo or
symbol of the Seller.
5.06 Further Assurances; Payment of Title and Real Estate Transfer
Costs.
Each party hereby agrees to execute and deliver such
instruments and take such other actions as the other party may reasonably
request in order to carry out the transactions contemplated by this Agreement.
The Purchaser shall be responsible for the cost of examining title to and
surveys of the Real Estate transferred to the Purchaser pursuant hereto and of
recording any real estate documents delivered by the Seller pursuant hereto, and
any other costs or expenses related to any of the foregoing.
5.07 Right to Intervene.
In the event that any litigation is instituted against the
Purchaser under or in connection with this Agreement, the Seller shall have the
right at its sole and absolute discretion to intervene in such litigation and
the Purchaser does hereby consent to such intervention.
5.08 Retained Assets.
The Seller shall remove from the Branch within ten (10) days
after the Effective Date, all of the assets of the Seller not sold by it to the
Purchaser pursuant hereto, and the Purchaser shall allow the Seller reasonable
access to the Branch to allow such assets to be removed.
5.09 Tax Allocation.
For federal income tax purposes, Purchaser and Seller shall report the
transactions contemplated by this Agreement in a manner consistent with the
Internal Revenue Code of 1986, as amended or superseded. The Purchaser and the
Seller each shall prepare and timely file all Internal Revenue Service forms and
all requisite state and local forms required to be filed by either or both of
them with respect to the purchase and assumption under this Agreement.
5.10 [Intentionally Omitted].
ARTICLE VI
CONDITIONS TO PURCHASER'S OBLIGATIONS
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Each and every obligation of the Purchaser under this
Agreement to be performed on or before the Effective Date shall be subject to
the satisfaction, not later than the Effective Date, of the following
conditions:
6.01 Representations and Warranties True; Obligations Performed.
(a) The representations and warranties made by the Seller in
this Agreement shall be true at and as of the Effective Date 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 by the Purchaser.
(b) The Seller shall have performed and complied with all
obligations and agreements required by this Agreement to be performed or
complied with by it on or before the Effective Date.
(c) The Seller shall have delivered to the Purchaser a
certificate of a Senior Vice President, dated the Effective Date, certifying to
the fulfillment of all of the foregoing conditions, which certificate shall be
substantially in the form of Exhibit F- 1 annexed hereto.
(d) On the Effective Date, the heating, plumbing, air
conditioning and electrical systems at the Branch will be in as good operating
condition as they were on the date of this Agreement, reasonable wear and tear
excepted. The Purchaser has the right to inspect such systems within 30 days
prior to the Effective Date to determine their condition; provided, that, Seller
shall bear no responsibility for any repairs deemed necessary by the Purchaser
as a result of such inspection.
(e) The Purchaser shall have received from the appropriate
regulatory authorities unconditional approval (i) of this transaction and (ii)
to operate the Branch. For purposes of this subparagraph, "unconditional
approval" shall mean an approval which does not require divestiture or cessation
of any current operation or business of Purchaser or impose any other condition
or requirement which divestiture, condition or requirement the Purchaser, in its
reasonable judgment, considers to be materially burdensome.
6.02 Transfer Documents; Payment of Net Consideration.
The Seller shall have executed and delivered to the Purchaser
the ▇▇▇▇ of Sale, the Assignment and Assumption Agreement, the Deed, the Bulk
Assignment of Loans and the Assignments of Mortgage and shall have made
available to the Purchaser the Repairs Cash together with cash in immediately
available funds in the amount determined pursuant to Section 1.04(c) hereof.
6.03 Evidence of Corporate Action; Status Certificate.
The Purchaser shall have received copies of all resolutions
adopted by the executive committee of the Seller's board of directors
authorizing this Agreement and the transactions contemplated hereby, duly
certified by the Seller's Secretary as of the Effective Date together with a
status certificate relating to the Seller issued by the OCC and dated within 7
days prior to the Effective Date.
6.04 Opinion of Seller's Counsel.
The Seller shall have delivered to the Purchaser the opinion
of Seller's counsel (which may be in-house counsel) in the form of Exhibit F-2
annexed hereto.
ARTICLE VII
CONDITIONS TO THE SELLER'S OBLIGATIONS
Each and every obligation of the Seller under this Agreement
to be performed on or before the Effective Date shall be subject to the
satisfaction, not later than the Effective Date, of the following conditions:
7.01 Representations and Warranties True; Obligations Performed.
(a) The representations and warranties made by the Purchaser
in this Agreement shall be true at and as of the Effective Date 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 by the Seller.
(b) The Purchaser shall have performed and complied with all
obligations and agreements required by this Agreement to be performed or
complied with by it on or before the Effective Date.
(c) The Purchaser shall have delivered to the Seller a
certificate of its President or a Senior Vice President, dated the Effective
Date, certifying to the fulfillment of both of the foregoing conditions, which
certificate shall be substantially in the form of Exhibit G-l annexed hereto.
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7.02 Assignment and Assumption Agreement; Bulk Assignment of Loans.
The Purchaser shall have executed and delivered to the Seller
the Assignment and Assumption Agreement and the Bulk Assignment of Loans.
7.03 Evidence of Corporate Action: Status Certificate.
The Seller shall have received copies of all resolutions
adopted by the Purchaser's board of directors in connection with this Agreement
and the Issuer's board of directors and, if applicable, shareholders in
connection with the issuance of the Preferred Stock, each duly certified by the
applicable entity's Secretary as of the Effective Date together with a status
certificate relating to the Purchaser issued by the OCC, and a good standing
certificate issued by the New Jersey Secretary of State relating to the Issuer,
each dated within 7 days prior to the Effective Date.
7.04 Opinion of Purchaser's Counsel.
The Purchaser shall have delivered to the Seller the opinion
of Purchaser's counsel in the form of Exhibit G-2 annexed hereto.
ARTICLE VIII
CONDITIONS TO SELLER'S AND PURCHASER'S OBLIGATIONS
Each and every obligation of the parties under this Agreement
to be performed on or before the Effective Date shall be subject to the
satisfaction, on or before the Effective Date, of the following conditions:
8.01 Approval of Governmental Authorities.
All required licenses, approvals, orders, notices and consents
of any relevant state or federal regulatory authorities shall have been obtained
and all necessary conditions, including the consent of the State of New Jersey
Division of Taxation in respect of the Purchaser's bulk sales tax filing made
pursuant to Section 1.l0 hereof and all other legally required waiting or
protest periods, relating to such licenses, approvals, orders, notices, and
consents shall have been fully satisfied.
8.02 Absence of Litigation.
On the Effective Date, no action, suit or proceeding shall be
pending or threatened (i) against the Seller or the Purchaser which, if
adversely determined, would materially and adversely affect the business of the
Branch or (ii) against either party which, if adversely determined, would
materially and adversely affect this transaction.
ARTICLE IX
TERMINATION
9.01 Methods of Termination. This Agreement may be terminated:
(a) At any time prior to the Effective Date by the mutual
agreement of the Purchaser and the Seller; or
(b) On or prior to the Effective Date (i) by the Purchaser if
any of the conditions provided for in Article VI of this Agreement shall not
have been satisfied or waived in writing by the Purchaser or (ii) by the Seller
if any of the conditions provided for in Article VII of this Agreement shall not
have been satisfied or waived in writing by the Seller or (iii) by either party
if any of the conditions provided for in Article VIII shall not have been
satisfied or waived in writing by both parties.
In the event of termination of the Agreement by either party
pursuant to this Section 9.01, written notice thereof shall forthwith 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 or parties
having the right to terminate.
9.02 Automatic Termination.
Unless otherwise agreed by the Purchaser and the Seller, if
the purchase, sale and assumption contemplated hereby is not consummated on or
prior to March 29, 1996, this Agreement shall terminate, and the purchase, sale,
and assumption contemplated hereby shall be abandoned, automatically and without
action on the part of either party, on such date.
9.03 Procedure Upon Termination; Effect of Termination.
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(a) If this Agreement is terminated as provided in Section
9.01 or 9.02 hereof' each party will redeliver all documents, work papers and
other materials of the other party relating to this transaction, whether
obtained before or after the execution hereof' to the party which furnished the
same.
(b) No termination of this Agreement under this Article IX
shall release either party hereto from any liability to, or obligation to
indemnify, the other party hereto arising out of' in connection with, or
otherwise relating to, directly or indirectly, such party's breach or default of
such party's covenants, agreements, duties or obligations hereunder.
ARTICLE X
MISCELLANEOUS PROVISIONS
10.01 Confidentiality.
Until the Effective Date, and if for any reason the sale
contemplated hereby is not effected, then at all times thereafter, each of the
parties will, and will cause its respective agents and representatives to, keep
confidential, and will not use for any purpose except presentment to its Board
of Directors, any and all information ("Information") furnished to it by the
other party heretofore or in the course of negotiations. In the event that a
closing under this Agreement does not take place, each of the parties will, upon
the written request of the other party return to such requesting party, or
destroy (and, if requested, certify destruction of), all information in whatever
form, including computer memory, and any documents, instruments, work papers and
other materials (and all copies thereof) containing Information submitted by
such requesting party or any of its agents or representatives to the other party
or any of its agents or representatives, except Information which has been made
part of the minutes of its Board of Directors or committees thereof.
However, nothing herein shall preclude either party from
disclosing any Information: (i) that is in the public domain at the time of such
party's receipt thereof other than as a result of such party's dissemination
thereof in violation of the terms hereof and which is free of any obligations of
confidentiality; (ii) that such party has acquired otherwise than from the other
party, its agents or representatives and which is received free of any
obligations of confidentiality; (iii) in connection with seeking required
regulatory approvals; or (iv) if required by law; provided, however, that in the
event that either party or their respective agents or representatives become
legally compelled (by any regulatory authority, deposition, interrogatory,
request for documents, subpoena, civil investigation demand, or similar process
or legal requirement) to disclose any of the Information, such party will
provide the other party with prior written notice of such requirement so that
the other party may seek a protection order or other appropriate remedy and/or
waive compliance with the provisions hereof. In the event that such protective
order or other remedy is not obtained, or that the other party waives compliance
with the provisions hereof' such party will furnish only that portion of the
Information that such party is advised by counsel is legally required and such
party will exercise its best efforts to obtain a reliable assurance that
confidential treatment will be afforded such Information.
10.02 Hiring of Employees.
(a) The Purchaser shall offer employment to all employees of
the Seller in good standing at the Branch other than those identified as
excluded employees in Schedule 9 attached hereto (the "Excluded Employees"), if
any, on substantially the same terms and conditions of their current employment
including eligibility and coverage under employee benefit plans. The Seller will
not change the position and/or compensation of any Branch employee who is not an
Excluded Employee prior to the Effective Date, other than ordinary scheduled
salary increases. Employment by the Purchaser of the employees hired by the
Purchaser (in each case, an "Acquired Employee") will commence upon the close of
business at the Branch on the Effective Date. Termination by the Seller of the
Acquired Employees will be effective at the close of business at the Branch on
the Effective Date. The Purchaser will not discharge any of the Acquired
Employees for three (3) months after the Effective Date, except for cause.
(b) All accruals under the Seller's retirement plan and
contributions under the Seller's savings plan in respect of Acquired Employees
shall cease as of the close of business on the Effective Date for obligations
which had accrued prior to the Effective Date. On the Effective Date, the Seller
shall discontinue participation of the Acquired Employees in such plans. The
Purchaser shall cause its tax-qualified employee benefit plans to be amended to
provide that, in the case of an Acquired Employee, service for all periods of
employment with the Seller (or any affiliate thereof or with other entities as
provided under such plan) shall be credited for purposes of determining
eligibility to participate and vesting and benefit entitlement (but not for
purposes of benefit accruals) for purposes of such plans. The Purchaser and
Seller agree to cause the transfer of assets and liabilities attributable to the
Acquired Employees under the Seller's savings plan to the Purchaser's savings
plan, as soon as practicable following the Effective Date.
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(c) The Acquired Employees shall cease to be participants in
all of the Seller's other benefit plans as of the Effective Date except as
otherwise provided in this Section 10.2(c). On the Effective Date, the Seller
shall discontinue such participation. Except as may be required by applicable
law, from and after the Effective Date, the Seller (a) shall have no
responsibility to, and shall not, provide any benefits or coverage to Acquired
Employees, or their dependents, under any Seller's benefit plan and (b) shall
have no responsibility for, and shall not process, any claims filed under the
Seller's benefit plan by the Acquired Employees, or their dependents, with
respect to matters or events occurring after the Effective Date. The Seller
shall be responsible for all, and the Purchaser shall have no obligation or
liability for any, claims filed by Acquired Employees under the Seller's benefit
plans with respect to events occurring prior to the Effective Date. The Acquired
Employees shall become participants in the Purchaser's benefit plans on the
Effective Date and the Purchaser shall make all amendments necessary to provide
for such participants. Except as may be required by applicable law, the
Purchaser shall (a) waive any eligibility requirements based on length of
service for coverage under the Purchaser's benefit plans, and (b) waive or
eliminate any pre-existing condition provision or limitation in any of the
Purchaser's medical or major medical plan covering the Acquired Employees.
(d) If an Acquired Employee's employment with the Purchaser is
involuntarily terminated after the Effective Date other than for cause, the
Purchaser shall pay such individual an amount of severance pay equal to
severance pay such Acquired Employee would have received under the severance pay
policies, plans or arrangements maintained by the Seller for all of its
employees as if the Acquired Employee had been involuntarily terminated
immediately prior to the Effective Date.
(e) The Purchaser shall credit each Acquired Employee with the
period of employment with the Seller for purposes of determining the annual
vacation leave of such Acquired Employee after the Effective Date. The Purchaser
shall give each Acquired Employee credit for the employee's accrued vacation as
of the Effective Date and shall permit the Acquired Employee to take any
vacation as scheduled with the Seller, except that the Purchaser may reschedule
any such vacation if necessary for the convenience of the Purchaser's business.
(f) Notwithstanding anything in this Agreement to the contrary
(a) the Seller and the Purchaser shall retain the right to amend in any respect
or to terminate in whole or in part any of their benefit plans in accordance
with the provisions of such plans and applicable law; provided, however, that
such amendments shall not deprive the Acquired Employees of the benefits
afforded under the provisions of Sections 10.02 (b) and (c) hereof' (b) nothing
contained in this Agreement shall obligate or commit the Seller or the Purchaser
to continue any benefit plan with respect to services performed after the
Effective Date or to maintain in effect any such plan, or any similar plan or
any level or type of benefits, (c) the representations, warranties and
undertakings contained in this Agreement shall be binding solely on the parties
to this Agreement, and no other persons shall have any third party beneficiary
or other right hereunder, (d) in the event that the Closing does not take place
or this Agreement is terminated or rescinded, the rights and benefits of the
Acquired Employees under all benefit plans of the Seller shall not be affected
in any degree by this Agreement, and the nonforfeitable interest of the Acquired
Employees in benefits under the Seller's retirement plan and the Seller's
savings plan shall be governed by such plans.
(g) For a period of twenty-four (24) months following the
Effective Date, the Purchaser shall not, and shall use its best efforts to cause
its affiliates not to, directly solicit or seek to employ any Excluded Employee;
aided, however, that nothing herein contained shall prohibit the Purchaser or
any of its affiliates from advertising generally any employment opportunities or
from hiring any persons who respond to such general advertising or who otherwise
seek employment without inducement from the Purchaser or its affiliates.
10.03 Amendment and Modification; Entire Agreement.
This Agreement may be amended or modified only by a written
instrument signed by all the parties hereto. This Agreement constitutes the
entire agreement between the parties hereto pertaining to the subject matter
hereof and supersedes all prior and contemporaneous agreements, understandings,
negotiations and discussions of the parties in connection therewith not referred
to herein including, without limitation, the letter of intent dated December 10,
1993 between the Purchaser and the Seller.
10.04 Successors and Assigns.
This Agreement and all of the provisions hereof shall be
binding upon, and inure to the benefit of' the parties hereto and their
respective successors and permitted assigns, but neither this Agreement nor any
of the rights, interests or obligations hereunder shall be assigned by either of
the parties hereto without the prior written consent of the other party hereto.
10.05 Counterparts.
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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.
10.06 Headings.
The headings of the Sections and Articles of this Agreement
arc inserted for convenience only and shall not constitute a part hereof.
10.07 Waiver.
Any condition to a party's obligations hereunder may be waived by such party,
but such waiver shall be effective only if in writing and signed by an
authorized officer of such party. No waiver of any provision of this Agreement
shall be deemed to constitute a waiver of any other provision hereof or any
subsequent breach or default (whether or not similar) nor shall any such waiver
constitute a continuing waiver.
10.08 Payment of Expenses.
Each party hereto shall pay its own expenses and costs in
connection with the preparation, negotiation, execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby, except
as stated otherwise herein. Notwithstanding the foregoing, any expenses, fees,
and costs necessary for any approvals of the appropriate Federal and/or State
regulatory authorities or for any notice to depositors or other customers of the
Branch of the assumption by the Purchaser of the Deposit Liabilities and other
duties, liabilities and obligations of the Seller provided for in this Agreement
(other than approvals or notices required by applicable laws, regulations or
regulatory authorities to be obtained or given by the Seller) shall be paid by
the Purchaser.
10.09 CHOICE OF LAW; JURISDICTION; CONSENT TO ARBITRATION.
(a) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
ACCORDING TO THE LAWS OF THE STATE OF NEW JERSEY APPLICABLE TO
AGREEMENTS ENTERED INTO THEREIN WITHOUT REGARD TO THE CONFLICTS OF
LAW PROVISIONS THEREOF.
(b) (i) SUBJECT TO THE PROVISIONS OF SUBSECTION 10.09(b)(ii)
BELOW, EITHER PARTY HERETO MAY SEEK TO ENFORCE ANY RIGHT HEREUNDER OR SEEK
DAMAGES AGAINST THE OTHER PARTY BY REASON OF ANY BREACH OF THIS AGREEMENT OR ANY
MATTER OR THING RELATING THERETO BY COMMENCING A CIVIL ACTION AT LAW OR IN
EQUITY. IN THE EVENT OF SUCH LITIGATION OR SUCH ACTION THE PARTIES HERETO
EXPRESSLY AND IRREVOCABLY CONSENT TO PERSONAL JURISDICTION OF ANY COURT OF THE
STATE OF NEW JERSEY.
(ii) NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SUBSECTION
10.09(b)(i) ABOVE, THE PARTIES MAY, SOLELY UPON JOINT WRITTEN CONSENT, AGREE TO
SUBMIT ANY CLAIM HEREUNDER TO, AND THEREBY COMMENCE, BINDING ARBITRATION BEFORE
A THREE ARBITRATOR PANEL PURSUANT TO THE RULES OF THE AMERICAN ARBITRATION
ASSOCIATION (THE "AAA"). EACH PARTY HERETO SHALL SELECT ONE ARBITRATOR. THE
THIRD ARBITRATOR SHALL BE SELECTED BY THE JOINT AGREEMENT OF SELLER AND
PURCHASER. IF THE SELLER AND PURCHASER HAVE NOT SELECTED A THIRD ARBITRATOR WHO
IS MUTUALLY ACCEPTABLE WITHIN TEN (10) DAYS AFTER THE DATE OF SUCH JOINT WRITTEN
CONSENT, THE THIRD ARBITRATOR SHALL BE SELECTED BY THE AAA. UPON CONFIRMATION
AND ENTRY OF JUDGMENT, ANY AWARD RENDERED BY THE ARBITRATORS SHALL BE CONCLUSIVE
AND BINDING UPON THE PARTIES HERETO; PROVIDED, HOWEVER, THAT ANY SUCH AWARD
SHALL BE ACCOMPANIED BY A WRITTEN OPINION OF THE ARBITRATORS GIVING THE SPECIFIC
FACTUAL AND LEGAL REASONS FOR THE AWARD. THIS PROVISION FOR ARBITRATION SHALL BE
SPECIFICALLY ENFORCEABLE BY THE PARTIES AND THE DECISION OF THE ARBITRATORS IN
ACCORDANCE HEREWITH SHALL BE FINAL AND BINDING AND THERE SHALL BE NO RIGHT OF
APPEAL THEREFROM. EACH PARTY SHALL PAY ITS OWN EXPENSES OF ARBITRATION AND THE
EXPENSES OF THE ARBITRATORS SHALL BE EQUALLY SHARED; PROVIDED, HOWEVER, THAT IF
IN THE OPINION OF THE ARBITRATORS ANY CLAIM FOR INDEMNIFICATION OR ANY DEFENSE
OR OBJECTION THERETO WAS UNREASONABLE, THE ARBITRATORS MAY ASSESS, AS PART OF
THEIR AWARD, ALL OR ANY PART OF THE ARBITRATION EXPENSES OF THE OTHER PARTY
(INCLUDING REASONABLE ATTORNEYS' FEES) AND OF THE ARBITRATOR AGAINST THE PARTY
RAISING SUCH UNREASONABLE CLAIM, DEFENSE OR OBJECTION. SHOULD THE PARTIES FAIL
TO CONSENT TO ARBITRATION, THE PROVISIONS OF 10.09(b)(i) ABOVE SHALL GOVERN.
10.10 Addresses for Notice etc.
All notices, requests, demands and other communications
provided for hereunder and under the related documents shall be in writing
(including telecopies and telegraphic communications) and mailed (by registered
or certified mail, return receipt requested), telecommunicated, telegraphed or
delivered to the applicable party at its address indicated below:
If to the Seller:
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▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Senior Vice President
NatWest Bank N.A.
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Senior Vice President - Law
National Westminster Bancorp Inc.
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
if to the Purchaser:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President and Chief Executive Officer
City National Bank of New Jersey
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
with a copy to:
▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇, St. ▇▇▇▇ & ▇▇▇▇▇
▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
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. Any notice, request, demand or
other communication given pursuant to the provisions of this Agreement
shall be deemed to have a delivered by hand, on the date actually
delivered, if sent by mail, three days after being deposited in the
mail, postage prepaid, and, if telecommunicated or telegraphed, when
sent.
10.11 No Third Party Beneficiaries.
Each party hereto intends that this Agreement shall not
benefit or create any right or action in or on behalf of any person or entity
other than the parties hereto.
10.12 Public Announcements.
All releases and statements to the press and/or media
concerning this Agreement ant transaction and the financial terms contemplated
hereby, shall be subject to the prior written the Seller and the Purchaser,
except as may be required by applicable law, rule or regulation.
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.
NATWEST BANK N.A.
By:________________________________
Name:
Title:
CITY NATIONAL BANK OF NEW JERSEY
By:________________________________
Title: