1
ASSET AND LIABILITY ALLOCATION AGREEMENT
NEW LONDON TRUST, FSB
DATED AS OF APRIL 12, 1999
BETWEEN
LAKE SUNAPEE BANK, FSB
AND
MASCOMA SAVINGS BANK
AND
CARGILL BANK
2
TABLE OF CONTENTS
Page No.
ARTICLE I
DEFINITIONS
ARTICLE II
ALLOCATION OF BANK ASSETS
2.1 Allocation of Bank Assets..............................................-2-
ARTICLE III
ALLOCATION OF BANK LIABILITIES
3.1 Allocation of Bank Liabilities.........................................-4-
ARTICLE IV
EMPLOYEES
4.1 Allocation of Employees................................................-4-
4.2 Compliance with Terms of Stock Purchase Agreement......................-4-
4.3 Corporate Center Obligations...........................................-5-
4.4 Retention Pay Obligations..............................................-5-
ARTICLE V
PURCHASE PRICE
5.1 Allocation of Purchase Price...........................................-5-
5.2 Allocation of Reductions in Purchase Price.............................-5-
5.3 Allocation of Delay Penalty............................................-5-
5.4 Closing Dividend.......................................................-5-
5.5 Allocation of Post-Closing Adjustment..................................-5-
ARTICLE VI
POST-CLOSING MATTERS
6.1 Mutual Cooperation.....................................................-6-
6.2 Post Closing Data Processing...........................................-6-
6.3 Referrals..............................................................-6-
6.4 Non-Solicitation of Bank Employees.....................................-6-
6.5 Non-Solicitation of Branch Customers...................................-7-
6.6 Duty to Furnish Information............................................-7-
6.7 Deposits and Loan Payments Inadvertently Received......................-7-
6.8 Obligation to Update Schedules Prior to Closing........................-7-
6.9 Conduct of Business....................................................-7-
6.10 Regulatory Approvals...................................................-7-
6.11 Adjustments in Bank Assets and Bank Liabilities........................-8-
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ARTICLE VII
INDEMNIFICATION
7.1 Allocation of Indemnification Payments.................................-9-
ARTICLE VIII
GENERAL PROVISIONS
8.1 Entire Agreement; Modification; Waiver.................................-9-
8.2 Counterparts...........................................................-9-
8.3 Headings...............................................................-9-
8.4 Governing Law.........................................................-10-
8.5 Addresses of Notice...................................................-10-
8.6 Expenses..............................................................-11-
8.7 Publicity.............................................................-11-
8.8 Severability..........................................................-11-
8.9 Consent to Jurisdiction: Waiver of Jury Trial.........................-11-
8.10 Damages; Enforcement of the Agreement.................................-12-
8.11 Binding Nature; Assignment............................................-12-
8.12 No Third Party Rights.................................................-12-
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SCHEDULES
Schedule 2.1(b) - Loans
Schedule 2.1(b)(i) - Loan Loss Reserves
Schedule 2.1(c)(i) - Leases
Schedule 2.1(c)(ii) - Realty
Schedule 2.1(d) - Personalty
Schedule 2.1(e) - Records
Schedule 2.1(f) - Contracts
Schedule 2.1(i) - Securities
Schedule 2.1(j) - Accounts Receivable
Schedule 2.1(k) - FHLB Stock
Schedule 2.1(m) - Data Processing Equipment
Schedule 2.1(o) - NYCE Stock
Schedule 3.1(a) - Allocation of Deposit Liabilities
Schedule 3.1(b) - Borrowings
Schedule 3.1(d) - Sold Loans and Mortgage Servicing Contracts
Schedule 3.1(e) - Other Bank Liabilities
Schedule 4.1 - Allocation of Bank Employees
Schedule 4.3 - Corporate Center Obligations
Schedule 5.1 - Purchase Price
Schedule 6.2 - Post Closing Data Processing
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ASSET AND LIABILITY ALLOCATION AGREEMENT
THIS ASSET AND LIABILITY ALLOCATION AGREEMENT (the "Agreement") is
made as of April 12, 1999, by and among Cargill Bank, a Connecticut chartered
savings and loan association with its main offices in Putnam, Connecticut
("CB"), Lake Sunapee Bank, fsb, a federally chartered savings bank with its main
offices in Newport, New Hampshire ("LSB") and Mascoma Savings Bank, a federally
chartered savings bank with its main offices in Lebanon, New Hampshire ("MSB").
CB, LSB and MSB are referred to herein individually as a "Bank Party" and
collectively as the "Bank Parties."
PREAMBLE
WHEREAS, the Sun Life Assurance Company of Canada (U.S.), a Delaware
corporation with its principal place of business in Wellesley, Massachusetts
("Sun"), and New London Trust, FSB, a federally chartered savings bank with its
main office in New London, New Hampshire ("Target") have entered into a Stock
Purchase Agreement with PM Holdings Inc., a Connecticut corporation with its
main office in Hartford, Connecticut ("PMH"), PM Trust Holding Company, a
Connecticut corporation with its main office in Hartford, Connecticut ("PMTH"),
and Bank Parties of even date (the "Stock Purchase Agreement"), a true copy of
which attached hereto as Exhibit A, which Stock Purchase Agreement provides for
the sale to PMH and PMTH of all of the capital stock of Target;
WHEREAS, PMH and PMTH have entered into a Purchase and Assumption
Agreement with Bank Parties of even date (the "Purchase and Assumption
Agreement"), a true copy of which is attached hereto as Exhibit B, whereby Bank
Parties have agreed to purchase from Target, immediately after the consummation
of the sale of Target Outstanding Stock (as defined in the Stock Purchase
Agreement) pursuant to the Stock Purchase Agreement, all of the Target's Bank
Business (as defined in the Purchase and Assumption Agreement); and
WHEREAS, Bank Parties desire to reach an agreement regarding the
allocation of the Bank Assets (as defined in the Purchase and Assumption
Agreement) and Bank Liabilities (as defined in the Purchase and Assumption
Agreement) among Bank Parties such that (i) each Bank Party is transferred an
amount of Bank Assets that is equal to the amount of Bank Liabilities that it
assumes and that (ii) the Bank Assets and Bank Liabilities transferred represent
the portion of the Bank Business for which each party has agreed to pay its
share of the Purchase Price (as defined in the Stock Purchase Agreement and the
Purchase and Assumption Agreement) and to set forth certain other agreements in
conjunction with their entering into the Stock Purchase Agreement and the
Purchase and Assumption Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, subject to the terms and conditions set forth herein, the
parties agree as follows:
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ARTICLE I
DEFINITIONS
Terms not otherwise defined herein shall have the meaning specified in the
Stock Purchase Agreement or the Purchase and Assumption Agreement, as
appropriate.
ARTICLE II
ALLOCATION OF BANK ASSETS
2.1 Allocation of Bank Assets. Bank Parties shall allocate all of Target's
right, title and interest in and to the Bank Assets existing as of the
Closing Date among Bank Parties as follows:
(a) Cash on Hand. All Cash shall be allocated to the Bank Party
acquiring the Banking Office at which such Cash is located.
(b) Loans. The Loans shall be allocated among Bank Parties in accordance
with Schedule 2.1(b).
(i) Loan Loss Reserves. The loan loss reserves shall be allocated
as provided in Schedule 2.1(b)(i); provided, however, any
excess loan loss reserves shall be subject to the provisions
of Section 13.3 of the Purchase and Assumption Agreement.
(ii) Other Real Estate Owned. Other Real Estate Owned will be
allocated to the Bank Party acquiring the Banking Office at
which the borrowing relationship with respect to such Other
Real Estate Owned is maintained.
(c) Real Property.
(i) Leases. All Banking Office Leases and Tenant Leases shall be
allocated in accordance with Schedule 2.1(c)(i).
(ii) Realty. All real estate, buildings, fixed assets and
improvements related to the Banking Offices shall be allocated
as set forth in Schedule 2.1(c)(ii).
(d) Personalty. All Personalty shall be allocated in accordance with
Schedule 2.1(d).
(e) Records. Except as set forth in Schedule 2.1(e), all books and
records related to the portion of the Bank Business acquired by a
Bank Party shall be allocated to that Bank Party.
(f) Contracts. Contract rights, licenses, permits, approvals,
authorizations and franchises shall be allocated as set forth on
Schedule 2.1(f). Any prepaid contract expense shall be allocated by
Banking Office.
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(g) Safe Deposit Box Assets and Agreements. All Safe Deposit Agreements
shall be allocated to the Banking Office at which the related safe
deposit box is located.
(h) Lease Improvements. Lease improvements (to the extent not otherwise
included as Personalty) shall be allocated to the Banking Office in
which they are located.
(i) Securities. The Securities shall be allocated as agreed by Bank
Parties at Closing as set forth on Schedule 2.1(i) to be prepared at
that time to further the objectives stated in the Preamble to this
Agreement.
(j) Accounts Receivable. The Accounts Receivable shall be allocated as
agreed by Bank Parties at Closing as set forth on Schedule 2.1(j) to
be prepared at that time to further the objectives stated in the
Preamble to this Agreement.
(k) FHLB Stock. FHLB Stock shall be allocated as set forth on Schedule
2.1(k).
(l) Day Care Center. LSB and MSB shall assume joint responsibility for
the administration and disposition of the Day Care Center. After the
Closing, the Day Care Center shall be renamed the "New London Day
Care Center." LSB and MSB intend to divest themselves of the Day
Care Center as soon as practicable after the Closing Date. Until
such time as such divestiture occurs, LSB and MSB shall allocate all
profits and operating expenses equally between them and promptly pay
any amounts due. LSB shall be assigned the Lease related to the Day
Care Center and shall have a primary responsibility for the
administration of the Day Care Center and shall account to MSB for
all profits and operating expenses.
(m) Data Processing Equipment, Tapes and File Packages. All data
processing equipment, software programs and the related property
shall be allocated as provided in Schedule 2.1(m).
(n) Subsidiaries. Ownership of the Subsidiaries shall be allocated as
follows: (i) 80 South Main Street Corporation to MSB; (ii) NLT
Services, Inc. to LSB; and (iii) New London Trust Financial Service
Corporation to CB.
(o) NYCE Stock. All NYCE Stock owned by Target on the Closing Date shall
be allocated as set forth in Schedule 2.1(o).
(p) FDIC Insurance Premiums. All insurance premiums paid by Target to
the FDIC which are allocated to insurance coverage for Deposit
Liabilities of the Banking Offices on the Closing Date shall be
allocated to Bank Parties in proportion to the deposit liabilities
assumed by Bank Parties.
(q) Other Bank Assets. All other Bank Assets shall be allocated in
accordance with Schedule 2.1(q). Any Bank Assets allocated to any
Bank Party pursuant to Section
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2.1(c) of the Purchase and Assumption Agreement shall be allocated
pursuant to Section 6.11 of this Agreement.
ARTICLE III
ALLOCATION OF BANK LIABILITIES
3.1 Allocation of Bank Liabilities. Bank Parties shall allocate the Bank
Liabilities existing as of the Closing Date among the Bank Parties as set
forth below. Such allocations may be amended by LSB and MSB to make
adjustments in the allocation of Bank Liabilities pursuant to the
provisions of Section 11.6(b) of the Purchase and Assumption Agreement.
(a) Deposit Liabilities. At the Closing, the Deposit Liabilities
(including IRAs) shall be allocated to each Banking Office acquired
in accordance with Schedule 3.1(a).
(b) Borrowings. All borrowings from the FHLB of Boston shall be
allocated as set forth on Schedule 3.1(b).
(c) Sold Loans and Mortgage Servicing Contracts. Any liabilities arising
from sold loans or mortgage servicing contracts shall be allocated
in accordance with Schedule 3.1(c). A proportionate share of the
loan loss reserves of CB, LSB or MSB received from Target shall be
used to compensate the CB, LSB or MSB, as applicable, for any actual
loss incurred with respect to the sold loans or loan servicing
contract liability allocated to it. An actual loss in excess of the
loan loss reserves, if any, shall be allocated as provided in
Section 13.3 of the Purchase and Assumption Agreement
(d) Other Bank Liabilities. All other Bank Liabilities shall be
allocated in accordance with Schedule 3.1(e). Any Bank Liability
allocated to any Bank Party pursuant to Section 2.2(c) of the
Purchase and Assumption Agreement shall be allocated pursuant to
Section 6.11 of this Agreement.
ARTICLE IV
EMPLOYEES
4.1 Allocation of Employees. Each Bank Party shall be allocated responsibility
for the individual Bank Employees, including without limitation the
Assumed Severance Obligations and continued coverage insurance plans
related to the individual Bank Employees allocated to it, in accordance
with Schedule 4.1.
4.2 Compliance with Terms of Stock Purchase Agreement Each Bank Party agrees
to comply with the provisions of the Stock Purchase Agreement and the
Purchase Assumption Agreement relating to the Bank Employees allocated to
it.
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4.3 Corporate Center Obligations. Each Bank Party shall be allocated
responsibility in accordance with Schedule 4.3 for its portion of the
Assumed Severance Obligations with respect to the Corporate Center
Employees.
4.4 Retention Pay Obligations. Each of Bank Parties shall be responsible for
reimbursing Target at Closing for an amount not to exceed 25% of the "stay
for pay" amount referred to in Section 2.5.5 of the Stock Purchase
Agreement.
ARTICLE V
PURCHASE PRICE
5.1 Allocation of Purchase Price. The Purchase Price of $25.2 million shall be
allocated among Bank Parties in accordance with Schedule 5.1.
5.2 Allocation of Reductions in Purchase Price. In the event that the Purchase
Price is reduced pursuant to Section 2.3.2(ii) of the Stock Purchase
Agreement, (including a reduction based on Sun's election to utilize the
Y2K Deposit Measurement Period), the Deposit Reduction Amount and the
Post-Closing Deposit Reduction Amount, if any, shall be allocated among
Bank Parties in proportion to the decline in the average deposit account
balance of the Deposit Liabilities assumed by each Bank Party as set forth
in Schedule 3.1.
5.3 Allocation of Delay Penalty. In the event that Bank Parties become liable
to PMTH for an upward adjustment to the Purchase Price pursuant to Section
3.4 of the Purchase and Assumption Agreement because of any delay caused
by or attributable to acts or omissions of a Bank Party, the upward
adjustment in the Purchase Price shall be allocated to and paid to PMTH or
PMH by the Bank Party to which such delay is attributable.
5.4 Closing Dividend. In calculating the Closing Dividend in accordance with
Section 2.9 of the Stock Purchase Agreement, Bank Parties agree to
cooperate in determining any required disposition of the Securities.
5.5 Allocation of Post-Closing Adjustment. Any post-closing adjustment paid or
received by Bank Parties pursuant to Section 3.3 of the Purchase and
Assumption Agreement shall be divided equally among Bank Parties.
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ARTICLE VI
POST-CLOSING MATTERS
6.1 Mutual Cooperation. In order to accomplish an orderly transition relative
to the processing of debits and credits to the Bank Assets and Bank
Liabilities assumed by Bank Parties under this Agreement, each Bank Party
agrees to cooperate in good faith in the post-transfer processing of
checks, drafts, deposit tickets for Deposits Liabilities made prior to and
after the Closing Date, and payments of principal and interest received by
Bank Parties after the Closing Date with respect to the Loans. Bank
Parties intend that the Uniform Commercial Code as in effect in the State
of New Hampshire, applicable federal regulations and usual banking
practices shall govern the processing of items. Other than PMTH or PMH,
the provisions of this Agreement constitute an agreement between Bank
Parties only, and no third party shall be, or shall be deemed to be,
entitled to rely on, or to receive any direct or indirect benefit from,
any of the provisions hereof.
6.2 Post Closing Data Processing. Each Bank Party agrees to provide to the
others data processing and transfer services to help insure the proper
transfer of customer information and transactions up through all data
processing conversions and for a reasonable time thereafter. Each Bank
Party agrees to act in good faith in facilitating the conversion and
transfer of data processing and other information concerning the Bank
Assets and Bank Liabilities to the other Bank Parties. Each Bank Party
shall designate an individual to serve as liaison from the date hereof
through a future date that shall be generally agreed upon by all Bank
Parties as the final conversion date. LSB agrees to provide transitional
data processing services to other Bank Parties as set forth in Schedule
6.2, which shall be prepared prior to Closing. After the conversion of the
data processing systems, any data processing licensing obligations,
equipment or hardware to be disposed will first be offered to Bank Parties
for purchase at book value and thereafter liquidated. Any gain or loss
associated with the disposition of such equipment shall be divided equally
between Bank Parties.
6.3 Referrals. Each Bank Party agrees that for a 180 day period following the
Closing Date, it will refer any customers seeking to transact business
related to Bank Assets or Bank Liabilities allocated to another Bank Party
to seek such services exclusively from the appropriate Bank Party.
6.4 Non-Solicitation of Bank Employees. Each Bank Party agrees that from the
date hereof through the first anniversary of the Closing Date, it shall
not, directly or indirectly, solicit for employment, retain as an
independent contractor or consultant, induce to terminate employment or
otherwise interfere with employment relationships with any Bank employee
who is employed by another Bank Party pursuant to Article IV hereof;
provided that nothing in this Agreement shall be construed to prevent any
Bank Party from advertising employment or consulting opportunities in
media of general circulation or publication in the geographic area
surrounding such Bank Party. It is expressly acknowledged that a Bank
Party may employ as an employee or retain as an independent contractor or
consultant any Bank employee who shall terminate his or her employment
with a Bank
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Party, provided there is no direct or indirect inducement or interference
by, or other pre-termination contact with, a Bank Party. The terms of this
Section 6.4 shall not prohibit a Bank Party from hiring a Bank employee
who has been terminated by another Bank Party after the Closing Date.
6.5 Non-Solicitation of Branch Customers. Each Bank Party agrees that from the
date hereof through 180 days following the Closing Date, it shall not
solicit Branch Customers through advertising specifically referencing or
targeted to such Branch Customers in a way which is reasonably likely to
induce such Branch Customers to transfer Deposit Liabilities or Loans from
Target to a Bank Party or from one Bank Party to another Bank Party;
provided that nothing in this Agreement shall be construed to prevent any
Bank Party from (a) engaging in advertising, solicitations, or marketing
campaigns not primarily directed to or targeted at Branch Customers, (b)
responding to unsolicited inquiries by Branch Customers with respect to
banking or other financial services, and (c) providing notices or
communications relating to the transactions contemplated hereby.
6.6 Duty to Furnish Information. Each Bank Party shall FURNISH THE OTHER BANK
PARTIES WITH INFORMATION IN ITS POSSESSION, RELATED TO THEIR RESPECTIVE
ALLOCATED SHARE OF THE BANK BUSINESS WHICH INFORMATION IS REASONABLY
NECESSARY TO ENABLE THEM TO EXERCISE THEIR RIGHTS AND PERFORM THEIR DUTIES
UNDER THIS AGREEMENT, THE STOCK PURCHASE AGREEMENT AND THE PURCHASE AND
ASSUMPTION AGREEMENT.
6.7 Deposits and Loan Payments Inadvertently Received. Each Bank Party shall
make all reasonable efforts to facilitate the acceptance after the Closing
Date of any deposits or loan payments for accounts allocated to another
Bank Party. Each Bank Party shall agree to accept deposits and loan
payments after the Closing Date for accounts allocated to another Bank
Party for a period not to exceed 90 days. Bank Parties shall undertake
reasonable measures to facilitate the timely crediting of deposits and
payments.
6.8 Obligation to Update Schedules Prior to Closing. From time to time prior
to the Closing Date, Bank Parties will supplement or amend the Disclosure
Schedules delivered in connection herewith with respect to any matter
hereafter arising which is necessary to reflect a change in the allocation
of Bank Assets and Bank Liabilities assumed by Bank Parties.
6.9 Conduct of Business. During the period from the date of this Agreement
through 180 days following the Closing Date, each Bank Party agrees to
conduct its business in good faith in the usual, regular and ordinary
course consistent with past practices and to take no action which would
adversely affect or delay the ability of the other Bank Parties to perform
their obligations under this Agreement.
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6.10 Regulatory Approvals.
(a) As soon as practicable after the date hereof, Bank Parties shall use
all reasonable efforts to prepare all necessary documentation, to
effect all necessary filings and to obtain all necessary permits,
consents, approvals and authorizations of all third parties and
governmental bodies necessary to consummate the transactions
contemplated by this Agreement. Bank Parties will each cooperate
with the other and will each furnish the other and the other's
counsel with all information concerning themselves, their
subsidiaries, directors, officers and stockholders and such other
matters as may be necessary or advisable in connection with any
application, petition or any other statement or application made by
or on behalf of a Bank Party to any governmental body in connection
with the transactions contemplated by this Agreement. Bank Parties
shall have the rights to review and approve in advance all
characterizations of the information relating to themselves, as the
case may be, and any of their respective subsidiaries, which appear
in any filing made in connection with the transactions contemplated
by this Agreement with any governmental body. In addition, Bank
Parties shall each furnish to the other a final copy of each such
filing made in connection with the transactions contemplated by this
Agreement with any governmental body.
(b) If, between the date of this Agreement and the Closing Date, either
(i) LSB or MSB determine that a Herfindahl-Hirschmann Index change
with regard to the Banking Offices or deposit liabilities to be
assumed by each of LSB and MSB under this Agreement will create an
impermissible competitive effect, or (ii) a government agency, the
approval of which will be a requirement to Closing, so indicates,
LSB and MSB shall cooperate to amend this Agreement so as to
re-allocate certain Bank Assets and/or Bank Liabilities to each of
LSB and MSB to eliminate the impermissible competitive effect.
6.11 Adjustments in Bank Assets and Bank Liabilities. While it is the intent of
Bank Parties to allocate the Bank Business between Bank Parties,
respectively, Bank Parties recognize that there may be certain assets and
liabilities that are not easily allocated between Bank Parties that may be
identified between the date of this Agreement and the Closing Date or may
be identified after the Closing. In such case, Bank Parties will endeavor
in good faith to allocate any such asset or liability equitably between
each other in such a manner as to carry out the intent of this Agreement.
As a general principle, Bank Parties agree that any such asset or
liability that is incidental to or a consequence of an asset or liability
assigned to a Banking Office will belong to the Bank Party acquiring the
related asset or liability. Any other asset or liability that relates to
more than one Banking Office shall be allocated between Bank Parties based
on the relative benefit or burden derived from such asset or liability to
the Banking Offices except that if such relative benefit or burden cannot
be ascertained, then Bank Parties shall share equally in such benefit or
burden. If Bank Parties are unable to agree on an allocation after a good
faith effort, the matter shall be referred to arbitration pursuant to
Section 14.16 of the Purchase and Assumption Agreement.
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ARTICLE VII
INDEMNIFICATION
7.1 Allocation of Indemnification Payments.
(a) Except as otherwise provided in this Agreement, in the event that
Bank Parties become liable to PMTH or PMH pursuant to Article XII of
the Purchase and Assumption Agreement, such liability shall be
allocated to and paid by each Bank Party in proportion to the
liability attributable to it. If the liability cannot be
proportioned among Bank Parties, such liability will be allocated
evenly among Bank Parties.
(b) In the event that PMTH or PMH becomes liable to Bank Parties
pursuant to Article XII of the Purchase and Assumption Agreement,
the amount payable to Bank Parties by PMTH or PMH shall be allocated
among Bank Parties in proportion to the losses incurred by each Bank
Party for which such indemnification is being paid.
(c) In the event that Sun becomes liable to Bank Parties pursuant to
Article XIII of the Stock Purchase Agreement, the amount payable to
Bank Parties by Sun shall be allocated among Bank Parties in
proportion to the losses incurred by each Bank Party for which such
indemnification is being paid.
ARTICLE VIII
GENERAL PROVISIONS
8.1 Entire Agreement; Modification; Waiver. This Agreement, including all
Schedules hereto and the agreements and other documents referred to herein
and therein, constitutes the entire agreement of the parties pertaining to
the subject matter contained herein and this Agreement supersedes all
prior or contemporaneous agreements, representations and understandings of
the parties. No supplement, modification or amendment to, or waiver of
this Agreement shall be binding unless executed in writing by Bank
Parties. No waiver of any provision of this Agreement shall be deemed or
shall constitute a waiver of any other provision, whether or not similar,
nor shall any waiver constitute a continuing waiver.
8.2 Counterparts. This Agreement may be executed 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.
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8.3 Headings. The headings of the Sections, Articles, and Schedules of this
Agreement are inserted for convenience only and shall not constitute a
part of this Agreement.
8.4 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New Hampshire without giving
effect to the principles of conflict of laws thereof.
8.5 Addresses of Notice. All notices, requests, demands and other
communications provided for under this Agreement and under the related
documents shall be in writing (including telegraphic communication) and
mailed (by registered or certified mail, return receipt requested, or
delivered by Federal Express or other similar express overnight delivery
service), or telegraphed, telecopied or delivered to the applicable party
at the addresses indicated below.
If to LSB:
Lake Sunapee Bank, fsb
9 Main Street (PO Box 9)
Newport, NH 03773-0029
Attention: Stephen W. Ensign, President and Chief Executive Officer
Telecopier: (603) 863-9571
With a copy to: Richard A. Schaberg, Esq.
Thacher Proffitt & Wood
1700 Pennsylvania Avenue, NW
Washington, DC 20006
Telecopier: (202) 347-6238
If to MSB:
Mascoma Savings Bank
67 North Park Street
Lebanon, NH 03776-0435
Attention: Stephen F. Christy
Telecopier: (603) 448-1470
With a copy to: W. John Funk, Esq.
Gallagher, Callahan & Gartrell
214 North Main Street
Concord, NH 03301
Telecopier: (603) 226-3334
If to CB:
Cargill Bank
Westbank Tower, 225 Park Avenue
West Springfield, MA 01089
Attention: Donald Chase
Telecopier: (413) 747-1456
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With a copy to: Richard A. Schaberg, Esq.
Thacher Proffitt & Wood
1700 Pennsylvania Avenue, NW
Washington, DC 20006
Telecopier: (202) 347-6238
or, to each party, at such other address that party designates in a
written notice to the other party in accordance with this section. All
such notices, requests, demands or other communications shall be deemed
delivered (i) if sent by messenger, upon personal delivery to the party to
whom the notice is directed, (ii) if sent by telecopier, upon electronic
or telephonic confirmation of receipt from the receiving telecopier
machine, (iii) if sent by reputable overnight courier, one business day
after delivery to such courier, or (iv) if sent by mail, three 3 business
days following deposit in the United States mail, postage prepaid,
certified mail, return receipt requested.
8.6 Expenses. Except as otherwise provided herein, each Bank Party shall pay
its own out-of-pocket expenses incurred in connection with this Agreement,
including legal, accounting and investment banking, whether or not the
transactions contemplated by this Agreement are consummated. In the event
that expenses incurred in connection with this Agreement are not
attributable to a particular Bank Party, such expenses shall be allocated
equally among Bank Parties.
8.7 Publicity. Except as may be required by law or by the rules or regulations
of any governmental authority or securities exchange prior to the Closing
Date, neither party shall, directly or indirectly, make or cause to be
made any public announcement or disclosure, or issue any notice, relating
to any of the transactions contemplated by this Agreement, unless approved
by the other in advance. Both parties will limit the distribution of
information relative to this transaction to those persons who must be
aware of the Agreement for the performance of their duties.
8.8 Severability. If any paragraph, section, sentence, clause, phrase, word or
covenant contained in this Agreement shall become illegal, null or void,
or against public policy, for any reason, or shall be held by any court of
competent jurisdiction to be illegal, null or void, or against public
policy, the remaining paragraphs, sections, sentences, clauses, phrases,
words and covenants contained in this Agreement shall not be affected.
8.9 Consent to Jurisdiction: Waiver of Jury Trial. EACH PARTY HERETO, TO THE
EXTENT IT MAY LAWFULLY DO SO, HEREBY SUBMITS TO THE JURISDICTION OF THE
COURTS OF THE STATE OF NEW HAMPSHIRE AND THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE, AS WELL AS TO THE JURISDICTION OF ALL
COURTS FROM WHICH AN APPEAL MAY BE TAKEN OR OTHER REVIEW SOUGHT FROM THE
AFORESAID COURTS, FOR THE PURPOSE OF ANY SUIT, ACTION OR OTHER PROCEEDING
ARISING OUT OF SUCH PARTY'S OBLIGATIONS UNDER OR WITH RESPECT TO THIS
AGREEMENT OR ANY OF THE AGREEMENTS, INSTRUMENTS OR DOCUMENTS
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CONTEMPLATED HEREBY, AND EXPRESSLY WAIVES ANY AND ALL OBJECTIONS IT MAY
HAVE AS TO VENUE IN ANY SUCH COURTS.
EACH PARTY HERETO HEREBY WAIVES TRIAL B JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR IN ANY WAY CONCERNED WITH THIS AGREEMENT OR
ANY OF THE AGREEMENTS, INSTRUMENTS OR DOCUMENTS CONTEMPLATED HEREBY. NO
PARTY HERETO, NOR ANY ASSIGNEE OR SUCCESSOR OF A PARTY HERETO, SHALL SEEK
A JURY TRIAL IN ANY LAWSUIT, PROCEEDING, COUNTERCLAIM OR ANY OTHER
LITIGATION PROCEDURE BASED UPON, OR ARISING OUT OF, THIS AGREEMENT OR ANY
OF THE AGREEMENTS, INSTRUMENTS OR DOCUMENTS CONTEMPLATED HEREBY. NO PARTY
WILL SEEK TO CONSOLIDATE ANY SUCH ACTION IN WHICH A JURY TRIAL HAS BEEN
WAIVED WITH ANY OTHER ACTION IN WHICH A JURY TRIAL A CANNOT BE OR HAS NOT
BEEN WAIVED. THE PROVISIONS OF THIS SECTION HAVE BEEN FULLY DISCUSSED BY
THE PARTIES HERETO, AND THE PROVISIONS SHALL BE SUBJECT TO NO EXCEPTIONS.
NO PARTY HAS IN ANY WAY AGREED WITH OR REPRESENTED TO ANY OTHER PARTY THAT
THE PROVISIONS OF THIS SECTION WILL NOT BE FULLY ENFORCED IN ALL
INSTANCES.
8.10 Damages; Enforcement of the Agreement.
(a) Any Bank Party suffering or incurring any loss, fee, cost, expense,
liability or obligation which has a material adverse effect on the
Bank Assets or Bank Liabilities allocated to it herein ("Damages"),
which arise from the actions or omissions of another Bank Party or
Bank Parties, shall be entitled to prompt payment for the amount of
any Damages from such other Bank Party or Bank Parties.
(b) The parties agree that irreparable damage would occur in the event
that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were 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 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.
8.11 Binding Nature; Assignment. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their permitted successors and
assigns; provided, however, that neither this Agreement nor any rights,
privileges, duties or obligations of the parties hereto may be assigned by
an such party prior to the Closing Date unless expressly pursuant to
Section 14.6 of the Purchase and Assumption Agreement.
8.12 No Third Party Rights. Other than with respect to PMTH and PMH, this
Agreement is not intended, nor shall it be construed, to create any
express or implied third party
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beneficiary rights in any person, including present and former employees
of Target, the Bank Employees, or any beneficiaries or dependents thereof.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
LAKE SUNAPEE BANK, FSB
By: /s/ Stephen W. Ensign
--------------------------------
MASCOMA SAVINGS BANK
By: /s/ Stephen F. Chritsy
--------------------------------
President
CARGILL BANK
By: /s/ Gary L. Briggs
--------------------------------
Executive Vice President
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