ASSIGNMENT, PURCHASE AND ASSUMPTION AGREEMENT by and between FIRST NIAGARA BANK, NATIONAL ASSOCIATION and COMMUNITY BANK, NATIONAL ASSOCIATION JANUARY 19, 2012 TABLE OF CONTENTS

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Section 5.18	Labor Contracts and Relations	40
Section 5.19	Environmental Matters	40
Section 5.20	Books and Records	41
Section 5.21	Safe Deposit Boxes	41
Section 5.22	Insurance Coverage	41
Section 5.23	Taxes	42
Section 5.24	Investment Products; Personnel	42
Section 5.25	Representations and Warranties Related to the Transferred Wealth Management Relationships.	42
Section 5.26	The Primary Purchase Agreement	43
Section 5.27	Limitations on and Disclaimer of Representations and Warranties	43
ARTICLE VI REPRESENTATIONS AND WARRANTIES OF PURCHASER		43
Section 6.1	Organization	43
Section 6.2	Authority; Capacity	44
Section 6.3	Consents and Approvals.	44
Section 6.4	No Breaches; Defaults	45
Section 6.5	Litigation and Related Matters	45
Section 6.6	Compliance with Laws and Regulations	45
Section 6.7	No Brokers or Finders	45
Section 6.8	Financing	45
Section 6.9	Eligibility	46
ARTICLE VII GENERAL COVENANTS		46
Section 7.1	Access to Properties and Records Relating to the Transferred Business.	46
Section 7.2	Efforts; Regulatory Filings and Other Actions.	47
Section 7.3	Further Assurances	49
Section 7.4	Notice of Changes.	49
Section 7.5	Confidentiality	49
Section 7.6	Publicity; Notices	50
Section 7.7	Restricted Assignments	50
Section 7.8	Transition Coordinators; Cooperation with Transition	51
Section 7.9	Non-Competition and Non-Solicitation.	51
Section 7.10	Distribution Agreements	54
Section 7.11	Arrangements with Respect to Employee Pension Plans, IRAs and Keogh Plans	54
Section 7.12	Updated Schedules.	54
ARTICLE VIII FURTHER AGREEMENTS		55
Section 8.1	Conduct of the Transferred Business Prior to the Closing.	55
Section 8.2	Real Property Leases and ATM Leases.	56
Section 8.3	UCC-1 Assignment and Other Documents.	58
Section 8.4	Letters of Credit	58
Section 8.5	Form of Transfer	58

Section 8.6	Conversion Plan, Data Processing and Related Matters.	58
Section 8.7	HSBC Intellectual Property.	60
Section 8.8	[Reserved].	61
Section 8.9	Wrong Pocket Assets	61
Section 8.10	Enforcement of HSBC Obligations.	62
ARTICLE IX EMPLOYMENT AND BENEFIT MATTERS		62
Section 9.1	Transferred Business Employees.	62
Section 9.2	Cooperation Regarding Transferred Business Employees	67
ARTICLE X TAX MATTERS		67
Section 10.1	Tax Indemnification.	67
Section 10.2	Refunds, Credits and Carrybacks.	67
Section 10.3	Cooperation	68
Section 10.4	Contest Provisions	68
Section 10.5	Transfer Taxes.	68
Section 10.6	Coordination	69
Section 10.7	Tax Treatment of Payments	69
Section 10.8	Limitations and Survival	69
Section 10.9	No Double Recovery	69
ARTICLE XI CLOSING CONDITIONS		70
Section 11.1	Conditions to Obligations of Each Party to Close	70
Section 11.2	Conditions to Obligation of Assignor to Effect the Closing	70
Section 11.3	Conditions to Obligation of Purchaser to Effect the Closing	71
ARTICLE XII TERMINATION		71
Section 12.1	Termination	71
Section 12.2	Effect of Termination	72
ARTICLE XIII SURVIVAL; INDEMNIFICATION		72
Section 13.1	Survival of Representations and Warranties	72
Section 13.2	Indemnification by Assignor.	73
Section 13.3	Indemnification by Purchaser.	73
Section 13.4	Third-Party Claim Indemnification Procedures.	74
Section 13.5	Consequential Damages	75
Section 13.6	Adjustments to Losses.	75
Section 13.7	Payments	76
Section 13.8	Mitigation	76
Section 13.9	Survival of Indemnity	76
Section 13.10	Remedies Exclusive	76
Section 13.11	No Indemnification by HSBC Sellers of Purchasers	77
Section 13.12	Purchaser’s Release of HSBC and Exculpation of Assignor	77

ARTICLE XIV MISCELLANEOUS		77
Section 14.1	Entire Agreement; Amendment	77
Section 14.2	Binding Effect; Assignment; Third-Party Beneficiaries	77
Section 14.3	Specific Performance	78
Section 14.4	Counterparts	78
Section 14.5	Notices	78
Section 14.6	Provisions Separable	79
Section 14.7	Expenses	79
Section 14.8	Deadlines	80
Section 14.9	Scope of Agreements	80
Section 14.10	Delays or Omissions	80
Section 14.11	Waiver of Jury Trial	80
Section 14.12	Governing Law; Consent to Jurisdiction	80

 

Section 5.14     Assumed Contracts.  To the Knowledge of Assignor, each party to any Assumed Contract to which an HSBC Seller or any of its Subsidiaries is a party has performed in all material respects its obligations thereunder to the extent that such obligations to perform have accrued, no party is in default under such Assumed Contracts, and none of such Assumed Contracts was entered into outside the ordinary course of business of any applicable HSBC Seller or its Subsidiaries. Each such Assumed Contract constitutes the legal, valid and binding obligation of the applicable HSBC Seller or its Subsidiaries, and, to the Knowledge of Assignor, the respective third party, and is enforceable in accordance with its terms subject as to enforcement, to applicable bankruptcy, insolvency, reorganization, liquidation and other similar laws and equitable principles relating to or affecting the enforcement of creditors’ rights generally.

 

Section 5.15     Regulatory Matters.  There are no pending, or to the Knowledge of Assignor, threatened disputes or controversies between Assignor or any HSBC Seller, and any federal, state or local governmental authority, that (i) would reasonably be expected to prevent or materially delay Assignor from being able to perform its obligations under this Agreement or  (ii) would reasonably be expected to impair the validity or consummation of this Agreement or the transactions contemplated hereby.  Neither Assignor nor, to the Knowledge of Assignor, any HSBC Seller has received any notice from any Governmental Entity indicating that such Governmental Entity would oppose or not promptly grant or issue its consent or approval, if requested, with respect to the transactions contemplated hereby and has no reason to believe that, if requested, any Governmental Entity required to approve the transactions contemplated hereby would oppose or not promptly grant or issue its consent or approval.

 

Section 5.16     Necessary Permits.  Except as set forth on Schedule 5.16, the HSBC Sellers and their respective Subsidiaries have all material permits, licenses, orders, ratings and approvals of all Governmental Entities necessary for them to operate the Transferred Business substantially as presently operated (the “Necessary Permits”), and (i) all of the Necessary Permits are in full force and effect in all material respects, and (ii) to the Knowledge of Assignor, no suspension or cancellation of any Necessary Permit has been threatened.

 

Section 5.17     Business Employees, Affiliated Employees and Benefits.

 

(a)           Schedule 1.1(c)(i) and Schedule 1.1.(c)(ii) list, as of December 22, 2011, all Business Employees (excluding Retained Employees) who are identified as employed in the Transferred Business by the internal records of the HSBC Sellers, and the Affiliated Employees, respectively, as well as the position, corporate and functional title, status as exempt or non-exempt, identification number, hire date, status as full or part-time, status as active or on leave, if on leave, the date leave commenced, geographic location and remuneration (including base salary, base wage, commission schedule and prior year’s incentive award, in each case, as applicable) of each such Business Employee or Affiliated Employee. Schedule 1.1(c)(ii) will separately identify the Affiliated Employees who are employed by HSI in connection with the Wealth Management Business (the “Wealth Management Employees”). Within five (5) Business Days prior to the Closing Date, and at such other dates as reasonably requested by the Purchaser, but no more frequently than once every thirty (30) days, Assignor shall update Schedule 1.1(c)(i) and Schedule 1.1(c)(ii) in electronic format, to reflect any newly hired Business Employees, any additional hired or identified Affiliated Employees, those Business Employees or Affiliated Employees whose employment has terminated, and any other change in the other information on Schedule 1.1(c)(i) or Schedule 1.1.(c)(ii), respectively; provided, however, that no updated information shall be provided with respect to those Business Employees or Affiliated Employees previously listed on Schedule 1.1(c)(i) or Schedule 1.1.(c)(ii), respectively, who have rejected a Comparable Job Offer or who have not received a Comparable Job Offer from Purchaser as of such date.

 

(b)           Schedule 5.17(b) lists all of the material employee benefit and compensation plans, programs, agreements and arrangements, including all pension, retirement, retiree medical, profit-sharing, thrift, savings, deferred compensation, compensation, incentive, equity-based, change in control, severance, welfare, fringe benefit, perquisite and similar plans sponsored, maintained or contributed to by the HSBC Sellers or any of their respective Affiliates and in which any Business Employee or Affiliated Employee is eligible to participate, excluding any nonqualified deferred compensation plan under which benefits, other than interest credits, are no longer being earned or accrued or to which contributions are no longer being made (the “Employee Plans”). Assignor has made available to Purchaser copies of the most recent summary plan descriptions and annual enrollment guides with respect to the Employee Plans.

 

Section 5.18     Labor Contracts and Relations.  Except as set forth on Schedule 5.18, with respect to Business Employees or Affiliated Employees, none of the HSBC Sellers or any of their respective Subsidiaries is a party to any collective bargaining agreement, contract, or other agreement or understanding with a labor union or labor organization, and none of the HSBC Sellers or any of their respective Subsidiaries is the subject of a proceeding asserting it has committed an unfair labor practice or seeking to compel it to bargain with any labor organization as to wages and conditions of employment, nor, to the Knowledge of Assignor, is any such proceeding threatened, nor is there any strike or other labor dispute by the Business Employees or Affiliated Employees pending or threatened, nor does Assignor or any HSBC Seller have Knowledge of any activity involving any Business Employees or Affiliated Employees seeking to certify a collective bargaining unit or engaging in union organizational activity.

 

Section 5.19     Environmental Matters.  Except as set forth on Schedule 5.19:

 

(a)           To the Knowledge of Assignor, each HSBC Seller and its respective Subsidiaries is currently in compliance in all material respects with all Environmental Laws applicable to any Business Premises, and with respect to any operations or activities conducted by any HSBC Seller or any of its Subsidiaries on such Business Premises. Neither Assignor nor any of the HSBC Sellers or their respective Subsidiaries has received any written notice that there has been any failure to comply with Environmental Laws applicable to the Purchased Real Property, and with respect to any operations or activities conducted by any HSBC Seller or any of its Subsidiaries on such premises except any such notice with respect to a failure to comply which has been fully resolved.

 

(b)           To the Knowledge of Assignor, the HSBC Sellers and their respective Subsidiaries have all material environmental permits and approvals required under Environmental Laws for all facilities and improvements and any operations activities presently conducted by the HSBC Sellers and their respective Subsidiaries on the Purchased Real Property, and, to the Knowledge of Assignor, each HSBC Seller and its Subsidiaries is currently in compliance with all such permits and approvals.

 

(c)           There is no suit, claim, demand, action, consent order, or proceeding pending or, to the Knowledge of Assignor, threatened in which Assignor or any HSBC Seller or any of their respective Subsidiaries or, with respect to threatened proceedings, could reasonably be expected to be named as a defendant, responsible party or potentially responsible party (i) for alleged noncompliance, with any Environmental Laws or (ii) relating to the Release into or presence in the Environment of any Hazardous Materials, in either case at or on any Purchased Real Property.

 

(d)           To the Knowledge of Assignor, there have been no Releases into the Environment of any Hazardous Materials in, on, from, under or affecting any Business Premises which would reasonably be expected to have a material adverse impact on such Business Premises.

 

Section 5.20     Books and Records.  With respect to each Assumed Agreement and all accounts related thereto, to the Knowledge of Assignor, the accounting, financial and other books and records kept by the HSBC Sellers and their Subsidiaries are in all material respects complete and accurate and have been maintained in the ordinary course of business and in compliance with in all material respects with Applicable Law. The books and records included within the Purchased Assets include all customary branch, customer and customer-related information reasonably necessary to service the Assumed Deposits and Purchased Loans on an ongoing basis, and to otherwise operate the Transferred Business being acquired under this Agreement in substantially the manner currently operated by the HSBC Sellers.

 

Section 5.21     Safe Deposit Boxes.  Each HSBC Seller and its Subsidiaries is in compliance, in all material respects, with the terms and conditions of the Safe Deposit Agreements.

 

Section 5.22     Insurance Coverage.  The business and operations of the Transferred Business are insured against such risks and in such amounts and with such coverage deemed appropriate by management of the HSBC Sellers and not in a manner materially inconsistent with industry practice for a global financial institution. Since January 1, 2010, all premiums payable under all insurance policies and fidelity bonds that currently cover the assets, business, operations and employees of the Transferred Business have been timely paid in all material respects, and the HSBC Sellers and their respective Subsidiaries have otherwise complied in all material respects with the terms and conditions of all such policies and bonds. Since January 1, 2010, there is no material claim by the HSBC Sellers or any of their respective Subsidiaries related to the Transferred Business pending under any such policies or bonds as to which coverage has been denied by the underwriters of such policies or bonds applicable to the Transferred Business. To the Knowledge of Assignor, no insurer has threatened a termination of coverage under any such policies or bonds, except notices required to be given by Applicable Law prior to the expiration of any policy or bond advising that coverage will terminate by its terms if such policy or bond is not renewed.

Section 5.23     Taxes

 

(a)           All Tax Returns required to have been filed with respect to the Transferred Business (such Tax Returns, the “Tax Returns”) have been filed with the appropriate Taxing Authority; each such Tax Return is true, complete and correct in all material respects. All Taxes shown to be due on such Tax Returns, and all Taxes due and attributable to the Transferred Business, have been timely paid, withheld and timely paid to the appropriate Taxing Authority, or reflected in an appropriate tax reserve in accordance with GAAP on the financial statements of the applicable HSBC Sellers, other than those Taxes the failure of which to be paid would not result in a Lien on the Purchased Assets or become a liability of Purchaser.

 

(b)           No notice of deficiency or assessment of Taxes has been received from any Taxing Authority with respect to the Transferred Business. There is no material dispute or claim concerning any Tax relating to the Transferred Business either (A) claimed or raised by any Taxing Authority in writing or (B) of which Assignor has Knowledge. There are no Liens on any of the Purchased Assets that arose in connection with any failure (or alleged failure) to pay any Tax (whether or not such Tax relates to the Transferred Business).

 

Section 5.24     Investment Products; Personnel.  Each Business Employee or Affiliated Employee who is required by Applicable Law to be licensed to sell non-deposit investment products, including insurance and securities, is validly licensed and in good standing with each applicable regulator, including FINRA and the state insurance regulators.

 

Section 5.25     Representations and Warranties Related to the Transferred Wealth Management Relationships.

 

(a)           Customer Relationships.

 

(1)           Each Transferred Wealth Management Relationship has been in all material respects originated and serviced (i) to the Knowledge of the Assignor in conformity with applicable policies of HSI, (ii) in accordance with the terms of any applicable instrument or agreement governing the relationship with such customer, (iii) in accordance with any instructions received from such customers and (iv) in compliance with Applicable Law. To the Knowledge of Assignor, each instrument or agreement governing a Transferred Wealth Management Relationship has been duly and validly executed and delivered by HSI and, the other contracting parties, and each such instrument or agreement constitutes a valid, binding and enforceable obligation of the parties thereto, subject as to enforcement, to applicable bankruptcy, insolvency, reorganization, liquidation and other similar laws and equitable principles relating to or affecting the enforcement of creditors’ rights generally.

 

(2)           As of the date hereof and to the Knowledge of Assignor, HSI has not received any written notice from any customer related to the Transferred Wealth Management Relationships that it intends to bring a claim against HSI or any of its Affiliates in connection with the Transferred Wealth Management Relationships.

 

(b)           Conduct of the Wealth Management Business.  To the Knowledge of Assignor, HSI currently has in place an effective system of policies and procedures and a supervisory system reasonably designed to achieve and maintain material compliance with all applicable federal and state securities laws (and the rules of any applicable Self-Regulatory Organization). To Assignor’s Knowledge, the Affiliated Employees associated with the Transferred Wealth Management Relationships, in their capacities as employees, have complied in all material respects with Applicable Laws.

 

(c)           Financial Advisors.  Schedule 5.25(c) lists each Affiliated Employee who, as of the date hereof, is a financial advisor associated with the Transferred Wealth Management Relationships, the assets under management attributable to each such financial advisor and the Banking Center(s) in which each such financial advisor is located. As of the date hereof, to the Knowledge of Assignor, HSI has not received any notice that any financial advisor listed in Schedule 5.25(c) has terminated or intends to terminate his or her employment.

 

Section 5.26     The Primary Purchase Agreement.  Exhibit C is a true, correct and complete copy of the Primary Purchase Agreement and all of the Exhibits and Schedules thereto.  As of the date of this Agreement, Assignor has no Knowledge of any breach of any representation or warranty made by an HSBC Seller in the Primary Purchase Agreement or of any breach of any covenant or agreement of an HSBC Seller in the Primary Purchase Agreement.

 

Section 5.27     Limitations on and Disclaimer of Representations and Warranties.  Except for its representations and warranties expressly set forth in this Agreement, Assignor makes no representations or warranties, express or implied, as to the Transferred Business, the Banking Centers, the Purchased Assets or the Assumed Liabilities. Purchaser acknowledges that notwithstanding the representations or warranties in this Agreement or in the Primary Purchase Agreement, neither HSBC nor any of its Affiliates makes any representations or warranties whatsoever to Purchaser, either express or implied.

 

 

Except as Previously Disclosed, Purchaser hereby represents and warrants to Assignor, as of the date hereof (or as of such other date as may be expressly provided in any representation or warranty), as follows:

 

Section 6.1     Organization.  Purchaser is a national bank duly organized, validly existing and in good standing under the laws of the United States.  Purchaser has all the requisite corporate power and corporate authority, as well as all requisite licenses, franchises, permits, qualifications and similar permissions and authorities, to own the Purchased Assets, assume the Assumed Liabilities and to carry on the Transferred Business and is duly qualified to do business in and is in good standing as a foreign corporation or other entity in each jurisdiction where the ownership of the Purchased Assets and the conduct of the Transferred Business requires such qualification, except where the failure to be so qualified or be in good standing would not, individually or in the aggregate, have a material adverse effect on Purchaser.

 

Section 6.2     Authority; Capacity.  Purchaser has the power and authority to enter into and perform this Agreement and any instruments or other documents executed by Purchaser pursuant hereto.  This Agreement and any instruments or other documents executed by Purchaser pursuant hereto, and the execution, delivery and performance hereof and thereof have been duly authorized and approved by all necessary corporate action on the part of Purchaser, and this Agreement and the instruments and documents executed by Purchaser pursuant hereto constitutes, or when executed will constitute, the valid and binding obligations of Purchaser, enforceable against Purchaser in accordance with its terms, except as enforcement may be limited by receivership, conservatorship and supervisory powers of bank regulatory agencies generally as well as bankruptcy, insolvency, reorganization, moratorium or other laws of general applicability relating to or affecting creditors’ rights, or the limiting effect of rules of law governing specific performance, equitable relief and other equitable remedies or the waiver of rights or remedies.

 

Section 6.3     Consents and Approvals.

 

(a)           Neither Purchaser nor any of its Affiliates is required to obtain any order, permit, consent, approval or authorization of, nor required to make any material declaration or filing with, any Governmental Entity or third-party in connection with the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby, except compliance with the applicable requirements of the HSR Act and the approvals or non-objections of the Governmental Entities set forth on Schedule 6.3(a) (such approvals, the “Purchaser Regulatory Approvals”).

 

(b)           There are no pending, or to the Knowledge of Purchaser, threatened disputes or controversies between Purchaser or any of its Affiliates and any Governmental Entity, including, without limitation, with respect to capital requirements, that (i) would reasonably be expected to prevent or delay Purchaser from being able to perform its obligations under this Agreement or (ii) would reasonably be expected to impair the validity or consummation of this Agreement or the transactions contemplated hereby.  Purchaser has not received any indication from any Governmental Entity that such Governmental Entity would oppose or refuse to grant or issue its consent or approval, if required, with respect to the transactions contemplated hereby and has no reason to believe that, if requested, any Governmental Entity required to approve the transactions contemplated hereby would oppose or not promptly grant or issue its consent or approval.

 

(c)           As of the date hereof, both currently and after giving effect to the transactions contemplated hereby (on a pro forma basis):  (i) Purchaser is and will be at least “well-capitalized”, as defined in the FDI Act; and (ii) Purchaser meets all capital requirements, standards and ratios required by each state or federal bank regulator with jurisdiction over Purchaser, including, without limitation, any such higher requirement, standard or ratio as applied to Purchaser by state or federal bank regulator, and no such regulator has indicated that it will condition any of the Purchaser Regulatory Approvals upon an increase in Purchaser’s capital or compliance with any capital requirement, standard or ratio.

 

(d)           The deposits of Purchaser and its Subsidiaries are insured by the FDIC to the fullest extent permitted by law, and all premiums and assessments required to be paid in connection therewith have been paid when due by Purchaser.

 

(e)           Purchaser was rated at least satisfactory following its most recent CRA examination by the regulatory agency responsible for its supervision and has no reason to believe that it will not maintain at least a satisfactory rating following its next CRA examination.  Purchaser has received no notice of and has no Knowledge of any planned or threatened objection by any community group to the transactions contemplated hereby.

 

Section 6.4     No Breaches; Defaults.  Assuming the receipt of all regulatory approvals referenced in Section 6.3(a), the execution and delivery of this Agreement and any instruments or other documents executed pursuant hereto by Purchaser do not and the consummation of the transactions contemplated by this Agreement, will not constitute:  (i) a breach or violation of or default under any law, rule, regulation, judgment, order, governmental permit or license of Purchaser or to which it is subject, which breach, violation or default would prevent or materially delay Purchaser from being able to perform its obligations under this Agreement in all material respects, or (ii) a breach or violation of or a default under the articles of association (or certificate of incorporation, as applicable) or bylaws of Purchaser.

 

Section 6.5     Litigation and Related Matters.  There are no actions, suits, or proceedings, whether civil, criminal or administrative, pending or, to the Knowledge of Purchaser threatened against or affecting Purchaser which could materially impede, delay or prevent Purchaser or any of its Subsidiaries from entering into this Agreement or performing its terms.

 

Section 6.6     Compliance with Laws and Regulations.  Except as set forth in Schedule 6.6, Purchaser and its Subsidiaries have conducted and are conducting their business in all material respects in compliance with all Applicable Law, including, without limitation, all regulations, orders, and opinions of the Office of the Comptroller of the Currency, the Board of Governors of the Federal Reserve System and the Federal Deposit Insurance Corporation, and, except as would not, individually or in the aggregate, result in a material adverse effect, none of Purchaser or its Subsidiaries is subject to any order or ruling directed to it by, or memorandum of understanding with, any Governmental Entity.

 

Section 6.7     No Brokers or Finders.  Except for RBC Capital Markets, whose fees will be paid by Purchaser, there is no investment banker, broker, finder or other intermediary that has been retained by or is authorized to act on behalf of Purchaser or any of its Affiliates who might be entitled to any fee or commission from Purchaser or any of its Affiliates in connection with the transactions contemplated hereby.

 

Section 6.8     Financing.  On the Closing Date, Purchaser will have sufficient cash, available lines of credit or other sources of immediately available funds to enable it to make the Closing Payment and to promptly pay any other amounts to be paid by it under this Agreement on the Closing Date.

 

Section 6.9     Eligibility.  As of the date hereof, Purchaser satisfies, and as of the Closing Date will satisfy, all clearing standards and requirements under Applicable Law to (1) acquire the Transferred Wealth Management Relationships and (2) employ the financial advisors associated with the Transferred Wealth Management Relationships.

 

 

Section 7.1     Access to Properties and Records Relating to the Transferred Business.

 

(a)           To the extent permitted by Applicable Law, from the date hereof until the earlier of the Closing Date and the termination of this Agreement, Assignor will provide or cause the HSBC Sellers to provide to Purchaser and to its officers, accountants, counsel, and other representatives reasonable access during the normal business hours of the HSBC Sellers to the properties, books, contracts and records of the HSBC Sellers and their respective Subsidiaries relating primarily to the Transferred Business for purposes related to the consummation of the transactions contemplated by this Agreement; provided, however, that such access shall be at reasonable times and upon reasonable prior notice and shall not disrupt the personnel and operations of the HSBC Sellers and their respective Subsidiaries; and provided further that Purchaser’s access to Tax Returns filed by or otherwise relating to the HSBC Sellers or any of their respective Subsidiaries shall be governed by ARTICLE X.  All requests for access to such offices, properties, books, and records shall be made to Assignor and Assignor will in turn either provide such access to Purchaser (if Assignor has copies of the applicable items) or make such requests to such representatives of the HSBC Sellers as the HSBC Sellers shall designate, who shall be responsible for coordinating such requests and all permitted access.

 

(b)           Following the Closing, Purchaser will grant Assignor and any HSBC Seller and their respective representatives reasonable access during Purchaser’s normal business hours to all books, records and other data related to the Transferred Business and to the Transferred Business Employees (including making such persons reasonably available to Assignor or any Affiliate or to an HSBC Seller or any Affiliate for depositions, witness preparation, trial preparation and fact-gathering, but excluding any proceedings, or threatened proceedings, between Assignor or an HSBC Seller, or an Affiliate of either of them, and Purchaser or an Affiliate of Purchaser) at reasonable times and upon reasonable prior notice, and provided such access shall not disrupt the personnel and operations of Purchaser and its Subsidiaries, if such access is reasonably deemed necessary or desirable by Assignor or any HSBC Seller or any of its Subsidiaries in connection with its tax, regulatory, litigation, contractual or other legitimate, non-competitive matters, including for purposes of handling claims related to Section 2.2  for which Transferred Business Employees may have relevant information.  Nothing in the foregoing shall prevent Assignor or any HSBC Seller or any of their respective Subsidiaries from seeking to make such persons available via subpoena or other legal or similar process.

(c)           If the HSBC Sellers do not deliver books, records and other data pursuant to Section 2.1(b)(7) that are otherwise required to be delivered pursuant to Section 2.1(a)(11), in accordance with Exhibit A, the Assignor will use commercially reasonable efforts to cause the HSBC Sellers to hold such books, records and other data as custodians for Purchaser and, in their capacity as custodians, to provide to Purchaser access to such books, records and other data in the manner provided in Exhibit A.

 

(d)           Purchaser will review with Assignor and HSBC Purchaser’s information security controls of the system or systems used by Purchaser to maintain the security of customer data, including providing reasonable access to Purchaser’s owned facilities and data centers and, to the extent permitted under the relevant contract, to third-party facilities and data centers.

 

Section 7.2     Efforts; Regulatory Filings and Other Actions.

 

(a)           Each of the parties hereto agrees to use its reasonable best efforts to take, all actions and to do, or cause to be done, all things necessary, proper or advisable to consummate and make effective as promptly as practicable the transactions contemplated hereby and to cooperate with the other parties in connection with the foregoing.  Without limiting the generality of the foregoing, each of the parties shall use its reasonable best efforts: (i) to obtain all Regulatory Approvals as promptly as practicable, (ii) to lift or rescind as promptly as practicable any injunction or restraining order or other order adversely affecting the ability of the parties hereto to consummate the transactions contemplated hereby, (iii) to effect all necessary registrations and filings, if any, and (iv) to fulfill all of the conditions to the obligations of the parties to consummate the transactions contemplated by this Agreement set forth in ARTICLE XI.

 

(b)           In furtherance, and not in limitation, of the covenants set forth in Section 7.2(a), each of the parties hereto agrees to use its reasonable best efforts to take or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to obtain the Required Government Approvals as promptly as practicable, and within thirty (30) days after the date hereof, each party will file any application, notice or report required to be filed by such party with any Governmental Entity with respect to any Regulatory Approval or otherwise required in connection with the transactions contemplated hereby and will use its reasonable best efforts to obtain a waiver from any applicable waiting period, and will make any further filings pursuant thereto that may be necessary in connection therewith.

 

(c)           Each party shall, subject to Applicable Law, (i) permit counsel for the other party, as well as counsel to HSBC, to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental Entity in connection with the transactions contemplated hereby, and (ii) provide counsel for the other party and counsel for HSBC with copies of all filings made by such party, and all material correspondence between such party (and its advisors) with any Governmental Entity and any other information supplied by such party and such party’s Affiliates to a Governmental Entity or received from such a Governmental Entity in connection with the transactions contemplated hereby; provided, however, that materials may be redacted (x) to remove references concerning the valuation of the Transferred Business (or any aspect thereof), (y) as necessary to comply with contractual arrangements, and (z) as necessary to address reasonable privilege or confidentiality concerns (including with respect to the Retained Businesses).  Each party agrees that it will use reasonable best efforts to keep the other party and HSBC fully informed with respect to all applications and developments related thereto and, where reasonably practicable under the circumstances, give the other party reasonable advance notice of, and whenever appropriate, invite the other party and HSBC (and give due consideration in good faith to any reasonable request of the other party) to participate in, any meetings or discussions held with any Governmental Entity; provided that such participation is not objected to by such Governmental Entity.  The parties further covenant and agree to mutually identify the most expedient method of effecting, as promptly as practicable, the legal transfer of all of the Purchased Assets and the Assumed Liabilities to Purchaser, and each party further covenants and agrees to use its reasonable best efforts to so effectuate such transfer.  The parties further covenant and agree not to extend any waiting period associated with any Regulatory Approval or enter into any agreement with any Governmental Entity not to consummate the transactions contemplated by this Agreement, except with the prior written consent of the other party hereto and HSBC.

 

(d)           Each party further covenants and agrees that (i) with respect to any threatened or pending preliminary or permanent injunction or other order, decree or ruling or statute, rule, regulation or executive order that would adversely affect such party’s ability to consummate the transactions contemplated hereby, to use its best efforts to prevent the entry, enactment or promulgation thereof, as the case may be, and (ii) in the event that any action, suit, proceeding or investigation is commenced after the date hereof challenging such party’s rights to consummate the transactions contemplated by this Agreement, such party shall use its best efforts, and take all actions necessary and appropriate, to contest such action, suit, proceeding or investigation.

 

(e)           Promptly upon the execution of this Agreement and subject to Applicable Law, Purchaser and Assignor will reasonably coordinate in good faith with each other and HSBC in respect of any communications with parties whose consent is required.  Assignor and Purchaser, in consultation with each other and HSBC, shall as promptly as practicable following the date hereof develop a communications and action plan (which plan shall be designed to communicate promptly and follow up with all such parties with respect to, and to obtain, all such required consents), and shall keep each other and HSBC reasonably informed regarding the progress and status of such efforts.

 

(f)           Each party represents, warrants and agrees that any information furnished by it for inclusion in any regulatory application will to its Knowledge be true and complete in all material respects as of the date so furnished.

 

(g)           Notwithstanding anything in this Section 7.2 or this Agreement to the contrary, in the event any Governmental Entity objects to Purchaser’s acquisition of one or more Banking Centers (or the assets or liabilities thereof), and such objection cannot be satisfied other than by a commitment of Purchaser to divest such Banking Center or Centers following the Closing or to undertake other remedial action of a material burdensome nature, the parties agree that this Agreement and the Schedules shall be amended to eliminate such Banking Center or Centers (and all related assets and liabilities) for all purposes of this Agreement, it being agreed that such Banking Center or Centers (and all related assets and liabilities) shall not become part of the Transferred Business.  In such event, the parties shall negotiate in good faith to (i) identify one or more other branches of Assignor (other than branches that Assignor has acquired or agreed to acquire under the Primary Purchase Agreement) of comparable value to be substituted for the Banking Center or Centers which have been eliminated from this Agreement and (ii) amend that certain Purchase and Assumption Agreement made on even date herewith by and between Purchaser and Assignor or enter into a new agreement to provide for the purchase and sale of such substituted branches (and related  assets and liabilities) as mutually agreed by the parties.  For the avoidance of doubt, it is the intention of the parties that Purchaser shall not be obligated to agree or commit to divest any Banking Center (or any assets or liabilities thereof), or to undertake any other material burdensome remedial action with respect to a Banking Center (or any assets or liabilities thereof) in order to obtain any Regulatory Approval.

 

Section 7.3     Further Assurances.  The parties agree that, from time to time, whether before, on or after the Closing Date, each of them will execute and deliver, and Assignor will use commercially reasonable efforts to cause HSBC to execute and deliver, such further instruments of assignment and directions for conveyance and transfer and take such other action as may be reasonably necessary to carry out the purposes and intents of this Agreement.

 

Section 7.4     Notice of Changes.

 

(a)           Purchaser shall promptly advise Assignor and HSBC, and Assignor shall promptly advise Purchaser and HSBC of (i) any change or event that would or would be reasonably likely to cause or constitute a material breach of any of Purchaser’s or Assignor’s, as applicable, representations, warranties or covenants contained herein, or (ii) to the extent permitted by Applicable Law and to the Knowledge of Purchaser or Assignor, as applicable, any governmental complaints, any change or event, including investigations or hearings (or communications indicating that the same may be contemplated) or the institution or the threat of significant litigation, that would reasonably be expected to prevent or materially delay the consummation of the transactions contemplated hereby.

 

(b)           Notwithstanding anything to the contrary herein, a party’s good-faith failure to comply with its obligations under this Section 7.4 shall not provide the other party hereto or any of such other party’s Affiliates with a right not to effect the transactions contemplated by this Agreement, except, in each case, to the extent that the underlying material breach of a representation, warranty or covenant would independently provide such right.

 

Section 7.5     Confidentiality.  Each party to this Agreement shall hold, and shall cause its respective directors, officers, employees, agents, consultants and advisors to hold, in strict confidence, except to the extent necessary to discharge obligations pursuant to Section 7.2 or unless compelled to disclose by judicial or administrative process or, based on the advice of its counsel, by other requirements of Applicable Law or the applicable requirements of any regulatory agency or relevant stock exchange, all non-public records, books, contracts, instruments, computer data and other data and information (collectively, “Information”) concerning the other party or concerning HSBC (or, if required under a contract with a third party, such third party) furnished to it by such other party or by HSBC or its representatives pursuant to the Confidentiality Agreement or otherwise in connection with the transactions contemplated by this Agreement (except to the extent that such information can be shown to have been (i) previously known by such party on a non-confidential basis, (ii) in the public domain through no fault of such party or (iii) later lawfully acquired from other sources by the party to which it was furnished), and neither Assignor nor Purchaser shall release or disclose such Information to any other person (other than HSBC), except its auditors, attorneys, financial advisors, bankers, other consultants and advisors with a duty of confidentiality and, to the extent permitted above, any Governmental Entity.  To the extent permitted by Applicable Law, each party will notify the other party and HSBC promptly upon becoming aware that any of the Confidential Information has been disclosed to or obtained by a third party (otherwise than as permitted by this Section 7.5).  The Confidentiality Agreement is hereby terminated between Assignor and Purchaser, it being understood, that the Confidentiality Agreement shall continue in full force and effect as between Purchaser and HSBC.

 

Section 7.6     Publicity; Notices.  Until the Closing Date, the parties hereto shall coordinate with each other and with HSBC as soon as practicable in advance as to (i) the form and content of any external communication, including any communication intended for dissemination or to reach, or reasonably expected to be disseminated or to reach, members of the public or Banking Center Customers regarding the transactions contemplated by this Agreement and (ii) the form and content of any communication from Purchaser to the Business Employees or Affiliated Employees.  Neither party shall disseminate any such communication without adequate advance notice and the prior review of the other party and of HSBC, which review shall not be unreasonably delayed, except that nothing contained in this Agreement shall prevent the parties hereto from publishing any press release or from making any and all public disclosures which it reasonably determines to be legally required to comply with any applicable securities laws or regulations or requests of governmental agencies or authorities; provided that, to the extent possible under the circumstances, the party making such disclosure consults with the other party and with HSBC, and considers in good faith the views of the other party and of HSBC, before doing so.

 

Section 7.7     Restricted Assignments.  Notwithstanding anything in this Agreement to the contrary, this Agreement shall not constitute an agreement to assign any Purchased Asset, Assumed Agreement, Assumed Deposits or other Assumed Liability, or any claim or right or any benefit arising thereunder or resulting therefrom if an attempted assignment thereof, without the consent of a third party thereto, would constitute a breach thereof or in any way affect the rights of an HSBC Seller or its Subsidiaries thereunder or be contrary to Applicable Law.  If any such consent or approval is not obtained, Assignor will use commercially reasonable efforts to cause the HSBC Seller to use its reasonable best efforts (which shall not require Assignor or such HSBC Seller to pay any money or other consideration to any Person or to initiate any claim or proceeding against any Person) to secure an arrangement reasonably satisfactory to Purchaser ensuring that Purchaser will receive the benefits under the agreement for which such consent is being sought following the Closing; provided, however, that Assignor shall have no obligation to obtain or to cause the HSBC Seller to obtain such consent or approval or to provide or cause an HSBC Seller to provide such an alternative arrangement other than the undertaking to use reasonable best efforts to obtain or provide the same as set forth in this Section 7.7 and Purchaser shall remain obligated to close the transactions contemplated herein, subject to the other provisions hereof, and shall have no remedy for failure of Assignor or the HSBC Seller to obtain any such consent or approval or to provide any such alternative arrangement and (except in the case of the right to occupy Business Premises, which situation is covered by the provisions of Section 8.2(d) below) the Closing Payment or the Purchaser Premium shall be computed to exclude the amount thereof attributable to any Purchased Asset, Assumed Agreement, Assumed Deposit or Assumed Liability which cannot be transferred or whose benefits cannot be conveyed in all material respects to Purchaser at the Closing; provided, that if such consent or approval is obtained after Closing then Purchaser shall thereupon remit to Assignor the amount withheld pursuant to the foregoing provisions.

 

Section 7.8     Transition Coordinators; Cooperation with Transition.  Subject to Applicable Law, from the date hereof until the earlier of the Closing Date and the termination of this Agreement, Assignor  will cooperate with Purchaser and use commercially reasonable efforts to cause the HSBC Sellers to cooperate with Purchaser to provide current information regarding material activities of the Transferred Business, and Purchaser and Assignor shall cooperate with and assist each other and HSBC in planning and implementing necessary and appropriate policies and procedures in connection with the transition of the ownership of the Transferred Business from the HSBC Sellers to Purchaser.  In connection therewith, Assignor and Purchaser shall each as promptly as practicable after the execution of this Agreement designate certain of their respective employees as “transition coordinators.”

 

Section 7.9     Non-Competition and Non-Solicitation.

 

(a)           Except as set forth on Schedule 7.9(a), Assignor will not agree to an amendment to or waiver of any HSBC Seller’s covenants under Section 7.9 of the Primary Purchase Agreement with respect to any of the following counties in New York State without the written consent of Purchaser insofar as any such amendment or waiver would adversely affect the Transferred Business: Chautaugua, Erie, Cattaraugus, Livingston, Ontario, Wayne, Yates, Seneca, Schuyler, Oswego, Jefferson, Lewis, Clinton, and St. Lawrence. In the event Purchaser provides Assignor with written notification setting forth in detail any breaches by any HSBC Seller of its covenants under Section 7.9 of the Primary Purchase Agreement as pertaining to the Purchased Assets, Assignor shall use its reasonable best efforts to enforce such covenants on Purchaser’s behalf and with Purchaser’s reasonable cooperation.

 

(b)           From the date hereof until the Closing Date, Purchaser and its Affiliates shall not, directly or indirectly, solicit for employment (other than as expressly permitted by this Agreement) or hire (i) any Business Employees and Wealth Management Employees who are not hourly wage (non-exempt) employees, (ii) any employees of the HSBC Sellers or their Affiliates who are or will be engaged in the preparation for or implementation of any Conversion or the transfer of any of the Transferred Business, Purchased Assets or Assumed Liabilities, or who are or will be otherwise involved in providing services under the Transition Services Agreement, (iii) any employees of HSBC Mortgage Corp. who are not otherwise identified on Schedule 7.9(b) and (iv) employees of HSBC Sellers or their Affiliates as of the date hereof who become or who are expected to become employees of Assignor before the Closing Date.  For purposes of monitoring ‎Section 7.9(b)(i), (ii) and (iv), all individuals described in (i), (ii) and (iv) are identified on a Schedule 7.9(b) previously delivered to Assignor thirty (30) calendar days following the execution of the Primary Purchase Agreement and which may be updated from time to time by HSBC Sellers.  The updated Schedule 7.9(b) shall be promptly provided to Purchaser upon receipt by Assignor.

 

(c)           During the period beginning on the Closing Date and ending on the first (1st) anniversary of the Closing Date:

 

(1)           Purchaser and its Affiliates shall not, directly or indirectly, solicit for employment or hire any Retained Employee or any employees of Assignor; provided that this Section 7.9(c)(1) shall not prohibit Purchaser or any of its Affiliates from (i) engaging in solicitation by means of a general purpose advertisement not specifically targeted at the Retained Employees or employees of Assignor or hiring any Retained Employee or employee of Assignor as a result of such general purpose advertisement or (ii) hiring any Retained Employee or employees of Assignor who was terminated by any HSBC Seller or Assignor, as applicable, after the Closing Date; and

 

(2)           Assignor and its Affiliates shall not, directly or indirectly, solicit for employment or hire any Transferred Business Employee or employee of Purchaser; provided that this Section 7.9(c)(2) shall not prohibit Assignor, from (i) engaging in solicitation by means of a general purpose advertisement not specifically targeted at the Transferred Business Employees or employees of Purchaser or hiring any Transferred Business Employee or employee of Purchaser as a result of such general purpose advertisement or (ii) hiring any Transferred Business Employee or employee of Purchaser who was terminated by Purchaser or any of its Affiliates after the Closing Date.

 

(d)           During the period beginning on the date hereof and ending on the first (1st) anniversary of the Closing Date, Purchaser and its Affiliates shall not, directly or indirectly, (i) use any information regarding the Retained Businesses in their possession as a result of the transactions contemplated by this Agreement, including as part of the books and records that are Purchased Assets, to solicit or engage in other efforts directed to or targeted at any customer or customers of the Retained Businesses or the Non-Assigned Transferred Business with respect to providing Banking Related Services similar to those of the Retained Businesses or the Non-Assigned Transferred Business or (ii) use such information to take any other actions that are designed to induce any customer of the Retained Businesses or the Non-Assigned Transferred Business to transfer any portion of such customer’s Relationships with HSBC or Assignor, as applicable, with respect to the Retained Businesses or the Non-Assigned Transferred Business, as applicable, to a similar business of Purchaser or its Affiliates; provided that nothing in this Section 7.9(d) shall be construed as limiting the ability of Purchaser to (x) respond to unsolicited requests by customers of the Retained Businesses or the Non-Assigned Transferred Business; (y) service customers of the Retained Businesses or the Non-Assigned Transferred Business who also, as of the date hereof, are customers of Purchaser or its Affiliates; or (z) offer or continue to offer Banking Related Services that are similar to the Retained Businesses or the Non-Assigned Transferred Business.

 

(e)           During the period beginning on the date hereof and ending on the second (2nd) anniversary of the Closing Date (the “Non-Competition Period”), neither Assignor nor any of its Subsidiaries (collectively, for purposes of this Section 7.9(e), the “Restricted Entities”) shall establish new banking branches, ATMs or loan production offices in the Assignor Designated Footprint (it being understood that expansion at any existing banking branch in the Assignor Designated Footprint shall not be limited); provided, however, that the foregoing shall not restrict any of the Restricted Entities from making any acquisition (through merger, stock purchase or purchase of all or substantially all of another banking institution’s assets) of any then existing banking branches, ATMs or loan production offices from another banking institution located within the Assignor Designated Footprint provided that the value of the newly acquired banking branches, ATMs or loan production offices within the Assignor Designated Footprint would not constitute more than forty percent (40%) of such acquired entity’s consolidated total revenues in the last completed fiscal quarter immediately preceding the consummation of the purchase transaction.  During the Non-Competition Period, the Restricted Entities shall not: (I) (a) solicit or engage in other efforts targeted at customers of the Transferred Businesses with respect to providing Banking Related Services similar to those of the Transferred Businesses; or (b) take any other actions that are designed to induce any customer of the Transferred Business to transfer such customer’s Relationships with Purchaser with respect to the Transferred Businesses to a similar business of Assignor or its Affiliates; provided that nothing in this Section 7.9(e) shall be construed as limiting the ability of the Restricted Entities to (x) respond to unsolicited requests by customers of the Transferred Business; or (y) offer or continue to offer Banking Related Services that are similar to the Transferred Business except to the extent otherwise restricted in the foregoing provisions of this Section 7.9 or (II) advertise or market Banking Related Services that are similar to the Transferred Business through advertisements or marketing efforts within the Assignor Designated Footprint or primarily targeting the customers of the Transferred Business; provided that nothing in this Section 7.9(e) shall be construed as limiting the ability of the Restricted Entities to conduct newspaper, radio, television, Internet and other advertisements, marketing efforts and solicitations that do not primarily target the customers of the Transferred Business so long as such marketing efforts or solicitations are not included in any newspaper or periodical having more than half of its circulation in the Assignor Designated Footprint or broadcast by any television or radio station physically located in the Assignor Designated Footprint (except that the limitations in the foregoing provision as to circulation in respect of newspapers and periodicals and physical location in respect of television or radio station shall not apply to restrict Assignor in the following community: Waterloo Village in Seneca County, New York).

 

(f)           Each of Purchaser and Assignor understands and acknowledges that (i) it would be difficult to calculate damages to the applicable party and to HSBC from any breach of the obligations of the other party under this Section 7.9, (ii) injury to Purchaser, Assignor or the HSBC Sellers, as applicable, from any such breach would be irreparable and impossible to measure and (iii) the remedy at law for any breach or threatened breach of this Section 7.9 would therefore be an inadequate remedy and, accordingly, Purchaser and Assignor (and HSBC as a third party beneficiary) shall, in addition to all other available remedies (including, without limitation, seeking such damages as either can show it has sustained by reason of such breach and/or the exercise of all other rights either has under this Agreement), be entitled to seek injunctive relief, specific performance and other equitable remedies without the necessity of showing actual damages or posting bond.

 

(g)           Purchaser and Assignor understand and acknowledge that the restrictive covenants and other agreements contained in this Section 7.9 are an essential part of this Agreement and the transactions contemplated hereby and thereby.  It is the intention of the parties that, if any of the restrictions or covenants contained herein are held to cover a geographic area or to be for a length of time that is not permitted by Applicable Law, or is in way construed to be too broad or to any extent invalid, such provision shall not be construed to be null, void and of no effect, but to the extent that such provision would then be valid or enforceable under Applicable Law, such provision shall be construed and interpreted or reformed to provide for a restriction or covenant having the maximum enforceable geographic area, time period and other provisions as shall be valid and enforceable under Applicable Law.

 

(h)           For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.9 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party.

 

Section 7.10     Distribution Agreements.  Purchaser agrees to enter into (i) one or more distribution agreements with HSBC and/or its applicable Affiliates, on terms mutually agreeable to them, to allow the continued distribution by Purchaser and its Affiliates and the continued servicing by HSBC and its Affiliates of asset management and other investment products of  HSBC and its Affiliates currently held by wealth management customers of the Transferred Business and (ii) such distribution or servicing arrangements, on terms mutually agreeable to them, as would allow for the portability of third-party asset management, annuity and other investment products currently held by wealth management customers of the Transferred Business.

 

Section 7.11     Arrangements with Respect to Employee Pension Plans, IRAs and Keogh Plans.  On or before the Closing Date, Assignor will cause HSBC to cause notice to be sent to each depositor of an Assumed Deposit held by HSBC or any of its Subsidiaries in an IRA and each “employer” who established an Assumed Deposit pursuant to a Keogh plan and each depositor that is an Employee Pension Plan, regarding the resignation of HSBC as IRA custodian or Keogh plan or Employee Pension Plan trustee, as applicable (as provided for in Section 7.12 of the Primary Purchase Agreement).  Such resignation shall be effective as of the date that is thirty (30) days following the date of the notice or, if later, the Closing Date.  If a depositor of an Assumed Deposit held by HSBC in an IRA or an employer who established an Assumed Deposit pursuant to a Keogh plan, Employee Pension Plan or other retirement plan fails to appoint another trustee or custodian for such account within this period, such depositor or employer will, to the extent permitted by Applicable Law, be deemed to have appointed Purchaser as successor trustee or custodian for the deposit account.  Upon its appointment as successor trustee or custodian for such accounts, as applicable, Purchaser shall perform the services and carry out the duties and obligations required of it under the applicable plans, the Code and Applicable Law.  If, notwithstanding the foregoing, as of the Closing Date, Purchaser shall be unable to retain deposit liabilities in respect of an Employee Pension Plan, IRA, Keogh Plan or other retirement plan, such deposit liabilities shall be considered “Excluded Deposits.”

 

Section 7.12     Updated Schedules.

 

(a)           On the fifth (5th) day prior to the Closing Date anticipated by the parties, Assignor will or will cause HSBC to deliver to Purchaser updated versions of the following schedules so that they are as of a date no earlier than last day of the month preceding the Closing Date (such date, the “Update Date”):  Schedule 1.1(a) (Assumed Deposits), Schedule 1.1(c)(i) (Business Employees), Schedule 1.1(c)(ii) (Affiliated Employees), Schedule 1.1(g) (Purchased Credit Card Accounts and Receivables), Schedule 1.1(h) (Purchased Overdrafts),  Schedule 1.1(l) (Transferred Business Banking Relationships), Schedule 1.1(m) (Transferred Wealth Management Relationships),  Schedule 2.1(a)(5)(i) (Purchased ATMs), Schedule 2.1(a)(5)(ii) (ATM Real Property Leases), Schedule 2.1(a)(6) (Purchased Loans), Schedule 2.1(a)(8) (CRA Assets), Schedule 2.1(a)(9) (Assumed Letters of Credit).  Purchaser acknowledges that the updated versions of the foregoing Schedules shall be prepared using the same methodology and criteria used in preparing the Schedules attached to this Agreement, subject to changes resulting from updates to the household allocations of customers to branches by HSBC consistent with “householding” methodology and change in householding made by HSBC Sellers in the Department of Justice divestiture Banking Centers in Buffalo.

 

(b)           In connection with delivery of the Final Closing Statement Assignor shall deliver to Purchaser updated versions of the following schedules, so that they are as of the Closing Date (such schedules, collectively, the “Final Schedules”):  Schedule 1.1(a) (Assumed Deposits), Schedule 1.1(c)(i) (Business Employees), Schedule 1.1(c)(ii) (Affiliated Employees), Schedule 1.1(g) (Purchased Credit Card Accounts and Receivables), Schedule 1.1(h) (Purchased Overdrafts), Schedule 1.1(l) (Transferred Business Banking Relationships), Schedule 1.1(m) (Transferred Wealth Management Relationships),  Schedule 2.1(a)(5)(i) (Purchased ATMs), Schedule 2.1(a)(5)(ii) (ATM Real Property Leases), Schedule 2.1(a)(6) (Purchased Loans), Schedule 2.1(a)(8) (CRA Assets), Schedule 2.1(a)(9) (Assumed Letters of Credit).  Purchaser acknowledges that the updated versions of the foregoing Schedules shall be prepared using the same methodology and criteria used in preparing the Schedules attached to this Agreement, subject to changes resulting from updates to the household allocations of customers to branches by HSBC consistent with “householding” methodology and change in householding made by HSBC Sellers in the Department of Justice divestiture Banking Centers in Buffalo.

 

 

 

Section 8.1     Conduct of the Transferred Business Prior to the Closing.

 

(a)           From the date hereof until the earlier of the Closing Date and the termination of this Agreement, Assignor shall use commercially reasonable efforts to cause the HSBC Sellers, consistent with the other provisions of this Agreement: (i) to use reasonable best efforts to, and cause their applicable Subsidiaries to use their respective reasonable best efforts to, conduct the Transferred Business in the ordinary course consistent with past practice and maintain, generally, their existing relations and goodwill with Banking Center Customers and vendors and suppliers to the Transferred Business; (ii) to use their ordinary course efforts to, and cause their applicable Subsidiaries to use their respective ordinary course efforts to, consistent with historical and customary past practices, preserve in all material respects, and with respect to the Banking Centers, the mix, type and aggregate amount of the Purchased Assets and Assumed Liabilities, including the Assumed Deposits, provided that the agreements in this Section 8.1 and the agreement of the HSBC Sellers in Section 8.1 of the Primary Purchase Agreement shall not be construed as any promise, representation or guarantee by Assignor or the HSBC Sellers that such mix, type and amount will in fact be maintained and may in fact be materially different as of the Closing Date, and the occurrence of such event shall not, in and of itself, be considered a breach of the obligations of Assignor or the HSBC Sellers’ obligations under this Section 8.1(a) or Section 8.1 of the Primary Purchase Agreement; and (iii) to continue to maintain the Banking Centers in accordance with its national pricing strategy, except that HSBC may in its sole discretion adjust its rates and pricing to respond to actions taken in the market by Assignor.

 

(b)           From the date hereof until the earlier of the Closing Date and the termination of this Agreement, Assignor will not agree to an amendment to or waiver of Section 8.1(b) of the Primary Purchase Agreement that would materially adversely affect the Transferred Business, Purchased Assets or Assumed Liabilities without the consent of Purchaser.  From the date hereof to the earlier of the Closing Date and the termination of this Agreement, Assignor will use commercially reasonable efforts to cause each HSBC Seller to comply with the terms of Section 8.1(b) of the Primary Purchase Agreement with respect to the Transferred Business, the Purchased Assets or the Assume Liabilities.

 

Section 8.2     Real Property Leases and ATM Leases.

 

(a)           Assignor will use commercially reasonable efforts to cause HSBC to use its reasonable best efforts (which shall not require Assignor or HSBC to pay any money or other consideration to any Person or to initiate any claim or proceeding against any Person) to cause every landlord of a Real Property Lease or ATM Real Property Lease, the consent of which is required under the terms of the applicable Real Property Lease or ATM Real Property Lease to the assignment of such Real Property Lease or ATM Real Property Lease to Purchaser, to execute in favor of Purchaser a Landlord Consent.

 

(b)           If, despite the efforts contemplated by Section 8.2(a), a Landlord Consent to assignment of a Real Property Lease or ATM Real Property Lease cannot be obtained, or cannot be obtained without the payment of an assignment fee or similar lump sum or rent increase, Assignor shall cause HSBC, if permitted without the consent of the landlord under the Real Property Lease or ATM Real Property Lease, to sublease the Business Premises or ATM location to Purchaser pursuant to a sublease agreement, as applicable, which shall be, to the extent permitted, for the remainder of the existing term of the Real Property Lease or ATM Real Property Lease, as applicable, and which shall provide for Purchaser to perform all of the obligations of HSBC under such Real Property Lease or ATM Real Property Lease and which otherwise shall contain mutually agreeable terms (a “Sublease Agreement”).

 

(c)           Purchaser shall use its reasonable best efforts to cooperate with HSBC’s attempts to obtain each Landlord Consent or its approval of a Sublease Agreement, but shall not be obligated to pay any consideration or grant any concession in connection therewith.

 

(d)           Notwithstanding anything to the contrary contained in this Agreement, if HSBC is unable to obtain for Purchaser the right to occupy a Business Premise, whether pursuant to a Landlord Consent or a Sublease Agreement or otherwise, Purchaser shall not be entitled to terminate this Agreement and Purchaser shall remain obligated to perform all of its obligations hereunder, including, without limitation, the assumption of the Assumed Deposits without any reduction or adjustment to the consideration to be paid by Purchaser as provided in this Agreement except, in the case of Banking Centers identified on Schedule 8.2(d), for the adjustment to the consideration to be paid by Purchaser if, as and to the extent provided for in Section 8.2(e).

 

(e)           If (i) HSBC is unable to obtain for Purchaser the right to occupy the Business Premises on which a Banking Center identified on Schedule 8.2(d) is situated because the required Landlord Consent to assignment of the applicable Real Property Lease cannot be obtained; (ii) HSBC is not permitted to provide such occupancy right under a Sublease Agreement for the remainder of the term of the applicable Real Property Lease as in effect at the Closing Date (without taking into account any optional extension of the term); and (iii) Assignor is not able to procure for Purchaser a right to occupy such Business Premises under a new lease with the landlord of the applicable Premises on fair market terms for similar facilities at a similar location, then, although Purchaser shall remain obligated to perform all of its obligations hereunder, including, without limitation, the assumption of the Assumed Deposits without any reduction or adjustment to the consideration to be paid by Purchaser as provided in this Agreement, Assignor will be required to pay to Purchaser an amount equal to the Non-Consent Fee in respect of such Banking Center, as provided for in the following paragraph.

 

 

 

 

Section 8.3     UCC-1 Assignment and Other Documents.

 

(a)           Assignor will use commercially reasonable efforts to cause HSBC to use its reasonable best efforts to deliver to Purchaser at the Closing all signed UCC-1 financing statements and UCC-3 assignments of financing statements, endorsed notes, participations, assignments of mortgages in recordable form and all other documentation necessary to effect the assignment of the Purchased Loans (including all related collateral) and the Assumed Letters of Credit to Purchaser.  The out-of-pocket costs and expenses (excluding internal labor costs and overhead expenses) of preparing and filing any such documentation with respect to the Purchased Loans and the Assumed Letters of Credit hereunder that are allocated to Assignor under Section 8.3 of the Primary Purchase Agreement shall be split equally between Assignor and Purchaser.

 

(b)           Purchaser acknowledges HSBC’s agreement in Section 8.3(b) of the Primary Purchase Agreement, and Assignor shall upon Purchaser’s request use its commercially reasonable efforts to cause HSBC to comply therewith.

 

Section 8.4     Letters of Credit.  In the event that any Assumed Letter of Credit cannot be assigned to Purchaser, on the Closing Date, Purchaser agrees to enter into a participation agreement with HSBC in customary form reasonably satisfactory to Purchaser and HSBC pursuant to which Purchaser shall acquire and assume all of HSBC’s rights and obligations under such Assumed Letters of Credit and become entitled to all reimbursements thereunder and collateral security and other credit support therefor.

 

Section 8.5     Form of Transfer.  Assignor and Purchaser may by mutual written agreement at any time, with the consent of HSBC, change the method of transferring the Transferred Business from HSBC to Purchaser in order to achieve, in a more efficient manner, the business, financial accounting, regulatory and tax objectives of Assignor and Purchaser in connection with the transactions contemplated by this Agreement; provided, however, no such change shall alter or change the amount of consideration to be paid by Purchaser as provided in this Agreement.

 

Section 8.6     Conversion Plan, Data Processing and Related Matters.

 

(a)           The parties hereto agree to cooperate with each other and with HSBC to employ their reasonable best efforts to plan, execute and complete the Conversion in an orderly and efficient manner pursuant to the Conversion Plan.  As promptly as practicable after the date hereof, Purchaser and Assignor shall each appoint qualified staff members to act as project managers for the Conversion (each, a “Conversion Project Manager”).  Such Conversion Project Managers shall act as the principal contacts between the parties and with HSBC representatives on matters relating to the Conversion, and shall coordinate the assignment of personnel as required and generally facilitate the planning, execution and completion of the Conversion pursuant to the Conversion Plan.  In addition to any conversion of the data and systems files as part of the Conversion pursuant to the Conversion Plan, the parties shall reasonably cooperate with each other and with HSBC in performing such tasks as may be outlined in the Conversion Plan (as defined below), including the collection and input of relevant data, development of new operating procedures and design of forms, in each case, as mutually agreed by the parties.

 

(b)           Purchaser and Assignor shall each bear all out-of-pocket costs and expenses associated with their respective area of responsibility as defined in the Conversion Plan, including costs and expenses incurred in converting, moving, storing, archiving, adapting or otherwise transferring or facilitating the transfer of any data, information, securities, records, files and systems from the systems and facilities of the HSBC Sellers and their respective Affiliates to the systems and facilities of Purchaser and its Affiliates (including costs with respect to computer programs, data processing, deconversion, data extraction, third-party charges and filing fees) provided, however, that, notwithstanding anything to the contrary in this Section 8.6 or otherwise in this Agreement, Purchaser shall not be liable hereunder for any termination fees, penalties or other break costs incurred by the HSBC Sellers or any of their respective Subsidiaries as a result of the Conversion.  Purchaser and Assignor each agrees to promptly reimburse the other in accordance with the Conversion Plan.  The agreement of the parties in this Section 8.6(b) does not alter the agreement of Assignor in Section 8.6(b) of the Primary Purchase Agreement.

 

(c)           In connection with the conversion activities described in subsections (a) and (b) immediately above, and subject to Applicable Law and Exhibit A, it is further agreed that:

 

(1)           Purchaser will review, subject to Section 7.1, current operations of the Transferred Business and Purchaser and Assignor shall cooperate with each other and with HSBC and use their reasonable best efforts to develop a mutually agreeable written plan within forty-five (45) days of the date hereof (as it may be amended from time to time, the “Conversion Plan”), which Conversion Plan shall (i) set forth the plan, procedures, scheduling methodology, resources and expenditures required to fully effect the Conversion by the end of the weekend immediately after the Closing Date (or such other date as may be agreed by the parties), (ii)  include interim target dates for the completion of integral items to the Conversion; (iii) provide that conversion items integral to the operation of the Transferred Business shall have the earliest target completion dates in the Conversion Plan and (iv) specify the appropriate procedures to allocate the Primary Purchased Assets and Primary Assumed Liabilities between Purchaser and Assignor; and

 

(2)           as of the Closing Date, Assignor will use commercially reasonable efforts to cause the HSBC Sellers to provide Purchaser with existing customer, account and transaction data feeds related to the Transferred Business in order to allow Purchaser to comply with applicable legal and contractual anti-money laundering and privacy requirements on and after the Closing Date.

 

(d)           The parties agree to cooperate with each other and with HSBC to schedule arrangements for change in displays and advertisements at the Banking Centers such that on the next Business Day following the Closing Date, no Signage shall be displayed at the Banking Centers, either internally or externally.  To the extent that any Signage shall remain at a Banking Center, Purchaser shall use its reasonable best efforts to remove such Signage prior to the next Business Day following the Closing Date and to retain such Signage for later collection by the HSBC Sellers.

 

(e)           The parties agree to address certain transitional matters addressed in Exhibit A in accordance with the provisions of Exhibit A and to coordinate with HSBC with respect to those matters.

 

Section 8.7     HSBC Intellectual Property.

 

(a)           Except as specifically provided in this Section 8.7, Purchaser acknowledges and agrees that none of Purchaser or its Affiliates is purchasing, acquiring, receiving a license to or otherwise obtaining any right, title or interest in, to or under any Intellectual Property owned or licensed by the HSBC Sellers or any of their respective Affiliates, including the HSBC Entity Names.

 

(b)           Except as provided in this Section 8.7, as of and following the Closing, Purchaser shall, and shall cause its Affiliates to, cease and discontinue promptly after the Closing any and all uses of any and all Intellectual Property owned or licensed by the HSBC Sellers or any of their respective Affiliates, including any HSBC Entity Names.  Except as provided in this Section 8.7, Purchaser agrees that, as of and following the Closing, none of Purchaser nor any of its Affiliates shall have any right, title or interest in, or any authority or license to use or allow others to use in any manner whatsoever, any Intellectual Property owned or licensed by the HSBC Sellers or their respective Affiliates, and any such right, title, interest, authority, license or sublicense or other arrangement relating thereto (whether written or oral) existing prior to the Closing, shall automatically terminate simultaneously with and effective as of the Closing.  Notwithstanding the foregoing and only to the extent that use of labeling, stationery, business forms, supplies, ATM cards, debit cards, gift cards, checks, deposit slips and envelopes (but excluding any advertising, marketing or other promotional materials) existing on the Business Premises, in the inventory of Purchaser or any of its Affiliates or in the possession of a Banking Center Customer, in each case, that bear an HSBC Entity Name as of the Closing (the “Business Material”) cannot be commercially reasonably avoided after the Closing by Purchaser and its Affiliates, Purchaser and such Affiliates shall have, subject to the execution by Purchaser and such Affiliates of the License Agreement, a limited, non-transferable, non-sublicensable, royalty-free, non-exclusive right to use and deplete the Business Materials for a thirty- (30) day period following the Closing Date (such right, the “HSBC Seller Name License” and such period, the “Transitional Period”); provided, however, that (i) none of Purchaser or any of its Affiliates shall take any action that could reasonably be expected to impair the value of or goodwill associated with the HSBC Entity Names, (ii) Purchaser and its Affiliates shall use the Business Materials and make any use of the HSBC Entity Names pursuant to this Section 8.7 in substantially the same forms, and for substantially the same purposes, as an HSBC Entity is using such HSBC Entity Names in connection with the operation and conduct of the Transferred Business immediately prior to the Closing, but not including any advertising, marketing or other promotional activities and (iii) Purchaser and its Affiliates shall use their reasonable best efforts to minimize their respective use of the HSBC Entity Names and shall cease using the HSBC Entity Names on such Business Materials as set forth in the License Agreement and in any event within the Transitional Period.  For clarity, the foregoing activities during the Transitional Period will be for wind-down purposes only, and none of Purchaser or any of its Affiliates shall actively use the HSBC Entity Names in any advertising, marketing or other promotional activities during the Transitional Period.

 

(c)           Purchaser, for itself and its Affiliates, acknowledges and agrees that, (i) as between the parties hereto, the HSBC Sellers and their respective Affiliates own or have the exclusive right to use any and all of the HSBC Entity Names and, except as otherwise expressly provided in this Section 8.7, none of Purchaser or any of its Affiliates shall, as of the Closing, have any rights in or to the HSBC Entity Names, (ii) none of Purchaser or any of its Affiliates shall contest the ownership or validity of any rights of the HSBC Sellers or any of their respective Affiliates in or to the HSBC Entity Names, and (iii) none of Purchaser or any of its Affiliates shall adopt, use, register or attempt to register any of the HSBC Entity Names or instruct others to do so.  Purchaser, for itself and its Affiliates, agrees and shall ensure that any use of the HSBC Entity Names as permitted in this Section 8.7 shall be only with respect to goods and services of a level of quality equal to or greater than the quality of goods and services with respect to which the HSBC Sellers and their respective Affiliates used such HSBC Entity Names prior to the Closing.  Purchaser, for itself and its Affiliates, agrees that, after the Closing, none of Purchaser or any of its Affiliates, will expressly, or willingly by implication, do business as or represent themselves as any HSBC Seller or any Affiliate of the HSBC Sellers and the personnel of Purchaser or any of its Affiliates shall not, and shall have no authority to, as of the Closing, hold themselves out as officers, employees or agents of the HSBC Sellers or any of their respective Affiliates.

 

(d)           Purchaser, on behalf of itself and its Affiliates, agrees that Purchaser and its Affiliates shall indemnify and hold harmless Assignor and the HSBC Sellers and their respective Affiliates from and against all Damages that arise out of, relate to or result from use of the HSBC Entity Names by Purchaser during the Transitional Period.

 

Section 8.8     [Reserved].

 

Section 8.9     Wrong Pocket Assets.  Unless otherwise specifically provided in Exhibit A, if at any time or from time to time after the Closing Date, Assignor, Purchaser, or any HSBC Seller, shall receive or otherwise possess any asset (including cash) that should belong to another Person pursuant to this Agreement, Assignor or Purchaser agrees to promptly transfer, or cause to be transferred, such asset to the Person so entitled thereto.

 

Section 8.10     Enforcement of HSBC Obligations.

 

(a)           Provisions in this Agreement for Assignor to cause or to use reasonable best efforts or commercially reasonable efforts (or words and phrases of similar import) to cause HSBC or any of the other HSBC Sellers to perform an agreement, covenant or obligation that HSBC or the applicable HSBC Sellers have made or undertaken shall not be construed as assurance by Assignor that HSBC or any of the other HSBC Sellers will perform such an agreement, covenant or obligation; however, by virtue of any such provision, and when such provision is applicable, Assignor shall, upon proper request by Purchaser, make one or more (as appropriate ) verbal (and, if appropriate, written) requests to representatives of HSBC or the other HSBC Sellers, as applicable, to perform such agreement, covenant or obligation.  If Purchaser advises Assignor in writing that notwithstanding such request(s) by Assignor, HSBC or another of the HSBC Sellers have not complied with such agreement, covenant or obligation, Assignor shall, if further requested by Purchaser, commence and prosecute a legal proceeding (at Purchaser’s cost and expense) to obtain specific performance of such agreement, covenant or obligation by the applicable HSBC Sellers.  In such a proceeding, Purchaser shall have the right to approve (which approval shall not be unreasonably withheld) legal counsel selected by Assignor to conduct such legal proceedings.  Assignor shall instruct its legal counsel to consult with and provide periodic updates to Purchaser and its legal counsel relating to such legal proceedings, and to provide Purchaser and its counsel copies of all material pleadings and motions exchanged in such legal proceedings, subject to Purchaser and its legal counsel entering into appropriate arrangements necessary to protect confidential and privileged information.  If requested by Purchaser to discontinue, abandon or settle such legal proceedings, Assignor will endeavor to do so on terms proposed by Purchaser provided such terms do not alter or prejudice Assignor’s rights and entitlements.  Purchaser agrees to compensate and reimburse Assignor, from time to time, for the third party costs and expenses (including the fees and disbursements of legal counsel approved by Purchaser) as such costs and expenses are incurred by Assignor in complying with this Section 8.10.  Purchaser shall, without regard to the limitations in ARTICLE XIII, indemnify and hold harmless Assignor from any claims or counterclaims brought by HSBC or HSBC Sellers in response to legal proceedings brought by Assignor pursuant to this Section 8.10 if any such claims or counterclaims relate to the claims in the underlying legal proceedings brought by Assignor pursuant to this Section 8.10 and do not involve acts or omissions of Assignor not authorized by Purchaser.  In no event shall Assignor be obligated to take any action pursuant to this Section 8.10 without reasonable assurances from Purchaser as to the merits of Purchaser’s position.

 

(b)           The provisions of this Section 8.10 are in addition to any rights and remedies otherwise available to Purchaser under law or this Agreement.

 

Section 9.1     Transferred Business Employees.

 

(a)           Offers of Employment.  Subject to Applicable Law, at least thirty (30) days (unless an earlier date is required by Applicable Law) prior to the Closing Date and effective as of the Closing Date, (i) Purchaser shall make and shall use reasonable best efforts to cause to be accepted, a Comparable Job Offer to all Business Employees and Wealth Management Employees (excluding Retained Employees) and (ii) Purchaser shall make, and shall use reasonable best efforts to cause to be accepted, a Comparable Job Offer to all such Affiliated Employees (other than the Wealth Management Employees) whom Purchaser reasonably determines, in good faith, are likely to meet Purchaser’s reasonable employment qualifications in respect of Purchaser’s business needs following the Closing Date both in terms of  the transactions contemplated by this Agreement and Purchaser’s internal business needs outside the context of such transactions; provided, however, that the Purchaser shall provide to Assignor, who shall provide to HSBC, within thirty (30) days following the date of this Agreement, a list of such Affiliated Employees to whom Purchaser shall make a Comparable Job Offer.  Purchaser’s employment of the Transferred Business Employees shall be deemed to commence at 11:59 p.m. on the Closing Date, without regard to whether the Transferred Business Employee is actively at work on the Closing Date in the case of an employee who on the Closing Date is absent from work due to a vacation, jury duty, funeral leave or personal day.  Notwithstanding the foregoing, to the extent that a Business Employee or an Affiliated Employee who has accepted Purchaser’s offer is not available to perform services on the Closing Date because on the Closing Date such employee is on sick leave, short-term disability, workers compensation leave, military leave, leave of absence under the Family Medical Leave Act or other leave of absence approved by an HSBC Seller or one of its Affiliates (other than a vacation, jury duty, funeral leave or personal day), he or she shall remain an employee of the HSBC Sellers or one of their respective Affiliates (except as otherwise required by Applicable Law); provided that Purchaser shall hire such Business Employee or Affiliated Employee if such Business Employee of Affiliated Employee returns to work no later than the date that is the earlier of the scheduled return date (including any approved extensions thereto) and six (6) months from the date of commencement of such leave, unless such Employee is entitled to reemployment under the Uniformed Services Employment and Reemployment Act, in which case Purchaser shall not be obligated hire such Employee unless the return date is no later than twelve (12) months following the Closing Date, and, for purposes of this Agreement, such Employee shall become a Transferred Business Employee as of the date active employment with Purchaser commences and, to the extent applicable, references in this Section 9.1 to the “Closing Date” shall relate to the date on which active employment commences.  Those Business Employees and Affiliated Employees who do not accept Comparable Job Offer from Purchaser shall not be considered Transferred Business Employees for any purpose of this Agreement.  Each of the Transferred Employees shall be provided by the Purchaser with an aggregate annual amount of paid time-off under the plans of the Purchaser  equal to such Transferred Employee’s current aggregate annual amount of paid time off, which, for clarity, takes into account and grandfathers all service with the HSBC Sellers and their Affiliates (including vacation time, personal time and sick time); provided that the Purchaser may allocate such aggregate annual amount of paid time off in a manner consistent with the policies of the Purchaser.

 

(b)           Termination of Employment with the HSBC Sellers.  As of the Closing Date, and as provided for in the Primary Purchase Agreement, the Transferred Business Employees shall cease active participation in each Employee Plan and shall have a “separation from service” as that term is defined by Section 409A of the Code and the regulations promulgated thereunder.  As provided for in the Primary Purchase Agreement, (i) the HSBC Sellers and their respective Affiliates shall retain all assets and Liabilities for the Business Employees and the Affiliated Employees, respectively, under the Employee Plans and (ii) the HSBC Sellers and their respective Affiliates shall be liable for all eligible claims for benefits under the Employee Plans that are welfare plans that are incurred by the Transferred Business Employees on or prior to the Closing Date.  For purposes of this Agreement, the following claims shall be deemed to be incurred as follows:  (i) life, accidental death and dismemberment, business travel accident, disability and workers compensation insurance benefits, upon the event giving rise to such benefits; and (ii) health, vision, dental and/or prescription drug benefits, on the date such services, materials or supplies were provided.  As provided for in Section 9.1(b) of the Primary Purchase Agreement, prior to the Closing Date, the HSBC Sellers shall request “good leaver” status from the Remuneration Committee of HSBC Holdings plc with respect to any outstanding awards under the HSBC Holdings plc Share Plan.

 

(c)           Benefits Following the Closing Date.  Effective as of the Closing Date, Purchaser shall provide the Transferred Business Employees with the same employee benefit plans and programs as those that are provided to similarly situated employees of Purchaser (both by job classification or status and by geographic location).  For purposes of determining (i) eligibility to participate in and vesting under applicable employee benefit plans of Purchaser or its Affiliates (other than under any employee stock ownership or option plan), (ii) the banking privileges and perquisites applicable to the Transferred Business Employees, (iii) retirement eligibility under any Purchaser plan providing for the grant of equity awards, (iv) for benefit accrual purposes only for vacation, paid time off and severance benefits, and (v) and level of pay credits under a cash balance plan,  in each case, as applicable, each Transferred Business Employee shall be credited with the years of service he or she has been credited with under the comparable Employee Plans; provided that such service shall not be recognized for purposes of (x) grandfathering and/or benefit accruals under any Purchaser defined benefit retirement plan, (y) retiree medical benefits (but it shall be recognized for access-only retiree medical, if applicable) or (z) any employee stock ownership or option plan.  Purchaser shall (i) deem satisfied any preexisting conditions and waiting periods under the welfare benefit plans of Purchaser that provide healthcare benefits in which the Transferred Business Employees are eligible to participate to the same extent that such conditions and waiting periods were satisfied under the comparable Employee Plan and (y) subject to the HSBC Sellers providing Purchaser with the applicable information with respect to each Transferred Business Employee in a form that Purchaser determines is administratively feasible to take into account under its plans, cause such plans to honor any expenses incurred by such Transferred Business Employees and their eligible dependents under Employee Plans that are healthcare benefit plans during the portion of the calendar year in which they become Transferred Business Employees for purposes of satisfying applicable deductible, co-insurance, maximum out-of-pocket, and similar expenses, to the same extent that such expenses were recognized under the comparable Employee Plan.  Purchaser shall not provide any payment or incentive to any Transferred Business Employee to induce such employee to elect continued participation in any healthcare benefit plan of the HSBC Sellers.

 

(d)           Severance.  (i)  Termination of Transferred Business Employees Following the Closing Date.  Purchaser shall pay, or cause to be paid, severance and provide benefits in accordance with the severance schedule set forth on Schedule 9.1(d)(i)(A), to each Transferred Business Employee whose employment is terminated by Purchaser or any Affiliate of Purchaser without “cause” (within the meaning set forth on Schedule 9.1(d)(i)(B)) within twelve (12) months after the Closing Date, subject to the execution, delivery and non-revocation of a release of claims in favor of Purchaser, the HSBC Sellers and Assignor and the respective Affiliates of Purchaser, the HSBC Sellers and Assignor.

 

(ii)           Termination of Business Employees who do not become Transferred Business Employees.  With respect to Business Employees and Affiliated Employees who do not become Transferred Business Employees for any reason (other than due to having rejected a Comparable Job Offer), (A) Purchaser shall be responsible for reimbursing the HSBC Sellers or their respective Affiliates, as applicable (or reimbursing Assignor if Assignor has directly reimbursed the HSBC Sellers or their Affiliates under the Primary Purchase Agreement), for any severance benefits but not greater than those described on Schedule 9.1(d)(i)(A) to the extent a Business Employee or Affiliated Employee rejects an offer of employment from Purchaser that was not a Comparable Job Offer and (B) the HSBC Sellers and their respective Affiliates shall retain and shall satisfy, as provided for in the Primary Purchase Agreement, all severance benefits payable to any other Business Employees or Affiliated Employees, respectively, and Assignor shall use its commercially reasonable efforts to cause the HSBC Sellers to satisfy such obligation.  Except as may otherwise be required by Applicable Law, none of the HSBC Sellers, Assignor or Purchaser or any of their respective Affiliates shall pay or provide severance benefits to any Business Employee and Affiliated Employee who receives a Comparable Job Offer from Purchaser and does not accept such offer.  Nothing in this Section 9.1(d)(ii) is intended to conflict with the provisions of Section 9.1(g), but in the event of an inconsistency, Section 9.1(d)(ii)  shall govern.  Subject to Applicable Law, the HSBC Sellers, their applicable Affiliates and Purchaser shall cooperate to take commercially reasonable steps to reduce, to the extent possible, the likelihood that severance benefits will be required to be paid to any Business Employees or Affiliated Employees who do not become Transferred Business Employees; provided, however, that, in no event, shall Purchaser, Assignor or the HSBC Sellers be required to find alternative employment for such employees at Purchaser, Assignor or the HSBC Sellers or one of their respective Affiliates, nor shall Purchaser have any other obligation with respect to such employees if Purchaser has otherwise complied with its obligations hereunder.

 

(e)           Retirement Plans.  Effective as of the Closing Date, to the extent permitted by Applicable Law, and as provided for in Section 9.1(e) of the Primary Purchase Agreement, the HSBC Sellers shall take action to provide that the account balances and accrued benefits, as applicable, of all Transferred Business Employees under the tax-qualified employee savings plan(s) (the “HSBC’s Savings Plan”) and pension plan(s) that are sponsored by the HSBC Sellers or any of their respective Affiliates in the United States in which the Transferred Business Employees participated immediately prior to the Closing Date shall vest in full.  Purchaser shall take all action necessary to permit Purchaser’s tax-qualified employee savings plan(s) maintained in the United States and in which Transferred Business Employees participate to accept rollover contributions of “eligible rollover distributions” (within the meaning of Section 402(c)(4) of the Code) for the benefit of participating Transferred Business Employees.

 

(f)           Annual Incentives.  (i)  In accordance with Section 9.1(f) of the Primary Purchase Agreement, the HSBC Sellers shall be liable for the payment of all formulaic incentive bonuses and annual discretionary bonuses to the Transferred Business Employees with respect to the calendar year commencing on January 1, 2011 and ending on December 31, 2011.  In addition, in accordance with Section 9.1(f) of the Primary Purchase Agreement, the HSBC Sellers shall be liable for the payment of any formulaic incentive bonuses, including monthly, quarterly and semi-annual incentive bonuses, to the Transferred Business Employees with respect to the period commencing on January 1, 2012 and ending on the Closing Date.  Purchaser acknowledges that such payments shall be made consistent with past practice of the applicable HSBC Seller, notwithstanding that Transferred Business Employees may not be employed by the HSBC Sellers or any of their respective Affiliates at the time of payment.

(ii)           Purchaser shall provide Transferred Business Employees an annual discretionary bonus opportunity prorated for calendar year 2012, based upon the number of days elapsed between the Closing Date and December 31, 2012 (with the amount, if any, determined consistent with Purchaser’s internal methodology for awarding annual discretionary bonuses).  Purchaser acknowledges that HSBC shall be responsible for and shall pay to the Transferred Business Employees a prorated portion of the annual discretionary bonuses accrued for the Transferred Business Employees prior to the Closing Date, calculated using accruals for performance year 2011, based upon the number of days elapsed between January 1, 2012 and the  Closing Date.  For purposes of clarity, and as provided for in Section 9.1(f) of the Primary Purchase Agreement, the HSBC Sellers and their respective Affiliates shall retain all liabilities for, and shall be responsible for the payment of, any formulaic incentive bonus amounts payable to the Transferred Business Employees for performance periods occurring prior to Closing Date under any formulaic incentive plans maintained by the HSBC Sellers or their Affiliates (for example, under any monthly, quarterly or commissions-based plans), and such formulaic incentive plans shall not be taken into consideration when determining the obligations of the Purchaser and the HSBC Sellers under this Section 9.1(f)(ii).

 

(g)           WARN Act.  The parties hereto agree to cooperate in good faith, including by sharing information about terminations of employment in a timely manner, to determine whether any notification may be required under the WARN Act as a result of the transactions contemplated by this Agreement.  Purchaser shall be responsible for providing any notice (or pay in lieu of notice) required pursuant to the WARN Act with respect to a layoff or plant closing involving Transferred Business Employees that occurs on or after the Closing Date.  Subject to Section 9.1(d)(ii), and as provided for in Section 9.1(g) of the Primary Purchase Agreement, the HSBC Sellers and their respective Affiliates shall be responsible for providing any such notice (or pay in lieu of notice) with respect to a layoff or plant closing occurring prior to, on or after the Closing Date and involving Business Employees or Affiliated Employees, respectively who do not become Transferred Business Employees.

 

(h)           Employee Communications.  Any communications by Purchaser with the Business Employees and/or Affiliated Employees prior to the Closing Date shall be subject to and in compliance with the terms of this Agreement.  Written communications from Purchaser to Business Employees and/or Affiliated Employees shall be subject to prior review, comment and approval by the HSBC Sellers and their respective Affiliates.  Purchaser acknowledges that in Section 9.1(h) of the Primary Purchase Agreement, the HSBC Sellers have agreed not to make any promises or commitments to the Business Employees or Affiliated Employees with respect to employment by Purchaser or the terms and conditions thereof.

 

(i)           Banking Privileges. Purchaser agrees to provide the Transferred Business Employees with the same banking privileges, if any, that Purchaser generally provides to similarly situated employees of Purchaser (both by job classification or status and by geographic location).

 

(j)           No Third-Party Rights.  No provision of this Section 9.1 shall create any third-party beneficiary rights in any Business Employee or Affiliated Employee (including any beneficiary or dependent thereof) nor is it intended to amend or alter any benefit plan of the Purchaser, the HSBC Sellers or any of their respective Affiliates, or limit the ability of the Purchaser or its Affiliates to amend their benefits plans in any respect at any time nor guarantee any Transferred Business Employee the right to continued employment for any period or with any Person.

 

Section 9.2     Cooperation Regarding Transferred Business Employees.  Notwithstanding anything in Section 9.1  to the contrary, Purchaser agrees to work together with HSBC and reasonably to cooperate with HSBC (and as appropriate with Assignor) to delay the separation from the HSBC Sellers and the start date with Purchaser for any Transferred Business Employees who are necessary to assist the HSBC Sellers in fulfilling their obligations under the Transition Services Agreement.

 

 

 

Section 10.1     Tax Indemnification.

 

(a)           Purchaser shall pay or cause to be paid, shall be liable for, and shall indemnify, defend and hold Assignor and the HSBC Sellers and their respective Affiliates harmless from and against any and all Taxes relating to the Transferred Business other than Excluded Taxes.

 

(b)           Payment in full of any amount due from Purchaser to Assignor or the HSBC Sellers under this Section 10.1 shall be made to the affected party in immediately available funds at least two (2) Business Days before the date payment of the Taxes to which such payment relates is due, or, if no Tax is payable, within fifteen (15) days after written demand is made for such payment.

 

Section 10.2     Refunds, Credits and Carrybacks.

 

(a)           Purchaser acknowledges and agrees that the HSBC Sellers shall be entitled to any refunds or credits of or against any Excluded Taxes.  Purchaser shall be entitled to any refunds or credits of or against any Taxes relating to Transferred Business, other than refunds or credits of or against Excluded Taxes.

 

(b)           Purchaser shall promptly forward, on behalf of Assignor, to the HSBC Sellers or reimburse the HSBC Sellers for (or reimburse Assignor if Assignor has made payments directly to the HSBC Sellers in respect of) any refunds or credits due to the HSBC Sellers (pursuant to the terms of this ARTICLE X) after receipt thereof, and Assignor will forward or will use commercially reasonable efforts to cause the HSBC Sellers to promptly forward, on behalf of Assignor, to Purchaser or reimburse Purchaser for any refunds or credits due Purchaser (pursuant to the terms of this ARTICLE X) after receipt thereof.

 

Section 10.3     Cooperation.  Each party hereto shall, and shall cause its Affiliates to, and Assignor shall use commercially reasonable efforts to cause the HSBC Sellers to, provide such cooperation, documentation and information relating to the Transferred Business as any of them or the HSBC Sellers reasonably may request in:  (i) filing any Tax Return, amended Tax Return or claim for refund, (ii) determining a liability for Taxes or an indemnity obligation under this ARTICLE X or a right to refund of Taxes, (iii) conducting any audit, examination, contest, litigation or other proceeding by or against any Taxing Authority, (iv) determining an allocation of Taxes between a Pre-Closing Period and Post-Closing Period or (v) effecting any other tax provision in this Agreement (including this ARTICLE X) or in the Primary Purchase Agreement (including Article X thereof).  Each party will retain, and Assignor shall use commercially reasonable efforts to cause HSBC, as provided for in Section 10.3 of the Primary Purchase Agreement) to retain all Tax Returns, schedules and work papers, and all material records and other documents relating to Taxes relating to the Transferred Business for Tax periods ending on or prior to the Closing Date until the later of (x) the expiration of the statute of limitations for the Tax periods to which the Tax Returns or other documents relate or (y) eight (8) years following the due date (without extension) for such Tax Returns.  Thereafter, the party holding such Tax Returns or other documents (or HSBC, as provided for in Section 10.3 of the Primary Purchase Agreement) may dispose of them after offering the other party reasonable notice and opportunity to take possession of such Tax Returns and other documents at such other party’s own expense.  Each party shall (and Assignor shall use commercially reasonable to cause HSBC, to the extent provided for in Section 10.3 of the Primary Purchase Agreement to) make its employees reasonably available on a mutually convenient basis at its cost to provide explanation of any documents or information so provided.

 

Section 10.4     Contest Provisions.  Each of Purchaser and Assignor shall, and Assignor shall use commercially reasonable efforts to cause the HSBC Sellers to, promptly notify the others, as applicable, in writing upon receipt of notice of any pending or threatened audits or assessments with respect to Taxes for which such other party (or such other party’s Affiliates) may be liable hereunder.  Assignor acknowledges and agrees that the HSBC Sellers shall be entitled to participate at their expense in the defense of and, at its option, take control of the complete defense of, any Tax audit or administrative or court proceeding relating to Taxes for which it may be liable, and to employ counsel and other advisors of its choice at its expense.  Neither party may agree to settle any claim for Taxes for which the other or the HSBC Sellers may be liable without the prior written consent of such other party or the HSBC Sellers, as applicable, which consent shall not be unreasonably withheld.

 

Section 10.5     Transfer Taxes.

 

(a)           Assignor and Purchaser acknowledge that all Transfer Taxes that are payable or that arise as a result of the consummation of the  transactions contemplated by the Primary Purchase Agreement shall be paid in accordance with the Primary Purchase Agreement, and Assignor shall use commercially reasonable efforts to cause the HSBC Sellers to pay all Transfer Taxes required to be paid by them.  In order to effectuate the provisions of this Section 10.5, Assignor and Purchaser agree that any Tax Returns that must be filed in connection with such Transfer Taxes shall be prepared and filed by the party primarily or customarily responsible under Applicable Law for filing such Tax Returns, and such party will use its reasonable best efforts to provide such Tax Returns to the other party (and Assignor shall use commercially reasonable efforts to cause HSBC to provide such Tax Returns under the Primary Purchase Agreement), at least ten (10) Business Days prior to the date such Tax Returns are due to be filed.  Such Tax Returns shall be prepared consistent with the Allocation Statement pursuant to Section 3.4(a).  Purchaser and Assignor agree to cooperate, and Assignor shall use commercially reasonable efforts to cause HSBC to cooperate, in the timely completion and filing of all such Tax Returns.  Purchaser agrees to timely sign and deliver any certificates or forms as may be necessary or appropriate to establish an exemption from (or otherwise reduce), and file the Tax Returns with respect to, such Transfer Taxes to the extent required to be signed and filed by Purchaser under this Section 10.5.  Assignor shall use commercially reasonable efforts to cause each HSBC Seller to timely sign, deliver and file the Tax Returns with respect to the Tax Returns with respect to Transfer Taxes, to the extent required to be signed and filed by the HSBC Sellers under the Primary Purchase Agreement.  For the avoidance of doubt, any Transfer Taxes resulting from any transfer after the Closing Date of any Purchased Asset or Assumed Liability, or any other property owned after the Closing Date by Purchaser or any of its Affiliates shall be borne by Purchaser and any Tax Returns relating thereto shall be prepared and filed by Purchaser.  The parties, subject to the Primary Purchase Agreement with HSBC, shall attempt in good faith to agree, on or prior to the Closing Date, on the fair market value of the Business Premises to be transferred and shall prepare and file (and Assignor shall use commercially reasonable efforts to cause HSBC to prepare and file) any Tax Returns required to be filed by them (or either of them or HSBC) with respect to Transfer Taxes on a basis consistent with any such agreed valuation.

 

(b)           The parties agree that each of them (or the HSBC Sellers, as applicable) shall have the right to seek a refund of any and all Transfer Taxes paid by it for which it is responsible pursuant to this Section 10.5 at its own expense (subject to the last sentence of this Section 10.5(b)).  If so requested, the other party shall and Assignor shall use commercially reasonable efforts to cause the HSBC Sellers to cooperate in good faith with the party, seeking such refund and will cooperate with the HSBC Sellers with respect to any refund the HSBC Sellers may seek under Section 10.5(a) of the Primary Purchase Agreement.  Any refund of Transfer Taxes (and any reasonable out-of-pocket expenses incurred by the parties, in obtaining such refund, provided, in the case of fees and disbursements paid to any accounting firm, such expenses were incurred after providing reasonable advance notice to and consulting in good faith with the other party) shall be shared between the parties, in accordance with the portion of such Tax paid by each such party, and any refund shall be shared with the HSBC Sellers to the extent the HSBC Sellers are required to pay the Tax relating to the refund under the Primary Purchase Agreement.

 

Section 10.6     Coordination.  Notwithstanding anything in this Agreement to the contrary, in the event there is a conflict between ARTICLE X and any provision contained in any other article of this Agreement, ARTICLE X shall control.

 

Section 10.7     Tax Treatment of Payments.  Assignor and Purchaser and their respective Affiliates shall treat any and all payments under this ARTICLE X or ARTICLE XIII as an adjustment to the consideration for Tax purposes unless they are required to treat such payments otherwise by applicable Tax laws.

 

Section 10.8     Limitations and Survival.  Notwithstanding anything in this Agreement to the contrary, the indemnification provisions of Section 10.1 are not subject to the limitations of ARTICLE XIII and shall survive the Closing until the expiration of the applicable statutes of limitation.

 

Section 10.9     No Double Recovery.  For the avoidance of doubt, neither Purchaser nor Assignor shall be entitled to receive indemnification from the other in respect of all or any portion of any Loss more than once, in each case, whether proceeding under this ARTICLE X or ARTICLE XIII.

 

 

Section 11.1     Conditions to Obligations of Each Party to Close.  The respective obligations of each party to effect the transactions contemplated by this Agreement are subject to the satisfaction or, where legally permitted, waiver by such party, prior to or at the Closing, of each of the following conditions:

 

(a)           No statute, rule, regulation, executive order, decree, ruling, permanent injunction or other permanent order shall have become effective (and final and nonappealable) permanently restraining, enjoining or otherwise prohibiting or making illegal the consummation of the transactions contemplated hereby.

 

(b)           All Regulatory Approvals set forth on Schedule 11.1(b) (the “Required Government Approvals”) shall have been obtained, and any applicable waiting periods relating thereto shall have expired or been terminated early.

 

(c)           The Primary Closing (as defined in the Primary Purchase Agreement) shall have occurred.

 

(d)           Assignor shall have received confirmation from HSBC that in HSBC’s reasonable judgment this Agreement complies with Section 7.11 of the Primary Purchase Agreement and with all conditions to Assignment in the Primary Purchase Agreement.

 

Section 11.2     Conditions to Obligation of Assignor to Effect the Closing.  The obligation of Assignor to effect the transactions contemplated by this Agreement is subject to the satisfaction or waiver (in the sole discretion of Assignor), prior to or at the Closing, of each of the following conditions:

 

(a)           All of the covenants and other agreements required by this Agreement to be complied with and performed by Purchaser on or before the Closing Date shall have been duly complied with and performed in all material respects.

 

(b)           Each of the representations and warranties of Purchaser contained in ARTICLE VI shall be true and correct as of the Closing Date as though made on and as of the Closing Date, except (i) that those representations and warranties which address matters only as of a particular date shall be true and correct as of such particular date; and (ii) where the failure of such representations and warranties in the aggregate to be so true and correct has not had, and would not reasonably be expected to result in, a material adverse effect on Purchaser’s ability to consummate the transactions contemplated by this Agreement (disregarding for purposes of this clause (ii) any qualification in the text of the relevant representation or warranty as to materiality, material adverse effect or Knowledge).

 

(c)           Assignor shall have received at the Closing a certificate dated the Closing Date and validly executed on behalf of Purchaser by an appropriate officer certifying that the conditions specified in Section 11.2(a) and Section 11.2(b) have been satisfied.

 

Section 11.3     Conditions to Obligation of Purchaser to Effect the Closing.  Purchaser’s obligation to effect the transactions contemplated by this Agreement is subject to the satisfaction or waiver (in Purchaser’s sole discretion), prior to or at the Closing, of each of the following conditions:

 

(a)           All of the covenants and agreements required by this Agreement and the Transition Services Agreement among Assignor, Purchaser and the HSBC Sellers to be complied with and performed by Assignor and the HSBC Sellers on or before the Closing Date shall have been duly complied with and performed in all material respects.

 

(b)           Each of the representations and warranties of Assignor contained in ARTICLE V shall be true and correct as of the Closing Date as though made on and as of the Closing Date, except (i) that those representations and warranties which address matters only as of a particular date shall be true and correct as of such particular date; and (ii) where the failure of such representations and warranties in the aggregate to be so true and correct has not had, and would not reasonably be expected to result in, a Material Adverse Effect (disregarding for purposes of this clause (ii) any qualification in the text of the relevant representation or warranty as to materiality, Material Adverse Effect or Knowledge).

 

(c)           Purchaser shall have received at the Closing a certificate dated the Closing Date and validly executed on behalf of Assignor by an appropriate officer of Assignor certifying that the conditions specified in Section 11.3(a) and Section 11.3(b), to the extent applicable to Assignor, have been satisfied.

 

Section 12.1     Termination.  This Agreement may be terminated at any time prior to the Closing Date:

 

(a)           by mutual written consent of Purchaser and Assignor;

 

(b)           by Purchaser or Assignor if (i) any Governmental Entity that must grant a Required Government Approval has denied such Required Government Approval, and such denial has become final and nonappealable or (ii) any Governmental Entity of competent jurisdiction shall have issued a final nonappealable order enjoining or otherwise prohibiting the consummation of the transactions contemplated by this Agreement or the Primary Purchase Agreement, unless, in either case, such denial of approval or issuance of such order arises out of, or results from, a material breach by the party seeking to terminate this Agreement of any representation, warranty, covenant or agreement of such party in this Agreement;

 

(c)           by Purchaser or by Assignor, if the Closing shall not have occurred on or before the Outside Date; unless the failure of the Closing to occur by such date arises out of, or results from, a material breach by the party seeking to terminate this Agreement of any representation, warranty, covenant or agreement of such party in this Agreement; and

 

(d)           (i) by Purchaser, if Assignor has breached any of its covenants or agreements or any of its representations or warranties contained in this Agreement, which breach, individually or in the aggregate, would cause the conditions set forth in Section 11.3(a) or Section 11.3(b) to be not satisfied, and such breach is not cured within forty-five (45) days following written notice to Assignor or cannot, by its nature, be cured prior to the Outside Date; provided that Purchaser is not then in material breach of any representation, warranty, covenant or other agreement contained in this Agreement, or (ii) by Assignor, if Purchaser has breached any of its covenants or agreements or any of its representations or warranties contained in this Agreement, which breach, individually or in the aggregate, would cause the conditions set forth in Section 11.2(a) or Section 11.2(b) to not be satisfied, and such breach is not cured within forty-five (45) days following written notice to Purchaser, or cannot, by its nature, be cured prior to the Outside Date; provided that Assignor is not then in material breach of any representation, warranty, covenant or other agreement contained in this Agreement.

 

(e)           In addition, this Agreement will automatically terminate upon termination of the Primary Purchase Agreement pursuant to its terms.

 

Section 12.2     Effect of Termination.  In the event of termination of this Agreement as provided in Section 12.1, this Agreement shall forthwith become void and have no effect, and none of Assignor, Purchaser, HSBC any of their respective Affiliates or any of the officers, directors or stockholders of any of them shall have any liability of any nature whatsoever hereunder, or in connection with the transactions contemplated hereby, except (i) the confidentiality provisions of Section 7.5 shall survive any termination of this Agreement, and (ii) notwithstanding anything to the contrary contained in this Agreement, none of Purchaser or Assignor shall be relieved or released from any liabilities or damages arising out of its willful breach of any provision of this Agreement.

 

 

 

Section 13.1     Survival of Representations and Warranties.  The representations and warranties contained in this Agreement shall survive the Closing for the period set forth in this Section 14.1.  All representations and warranties contained in this Agreement and all claims with respect thereto shall terminate on the eighteen (18) months after the Primary Closing Date, except that (i) the representations and warranties contained in Section 5.1, Section 5.2, Section 5.7, Section 6.1, Section 6.2 and Section 6.7 shall survive until the expiration of the applicable statute of limitations; it being understood that in the event notice of any claim for indemnification under this ARTICLE XIII has been given (within the meaning of Section 13.4) within the applicable survival period, the representations and warranties that are the subject of such indemnification claim shall survive with respect to such claim until such time as such claim is finally resolved.  The agreements and covenants contained in this Agreement that by their terms contemplate performance after the Closing Date shall survive the Closing in accordance with their terms.

 

Section 13.2     Indemnification by Assignor.

 

(a)           Assignor hereby agrees that from and after the Closing it shall indemnify, defend and hold harmless Purchaser and its respective Affiliates, and their respective directors, officers, employees (other than the Transferred Business Employees), agents and their heirs, successors and permitted assigns, each in their capacity as such (the “Purchaser Indemnified Parties”) from, against and in respect of any damages, losses, charges, Liabilities, claims, demands, actions, suits, proceedings, payments, judgments, settlements, assessments, deficiencies, interest, penalties, and costs and expenses (including removal costs, remediation costs, closure costs, fines, penalties and expenses of investigation and ongoing monitoring, reasonable attorneys’ fees, and reasonable out of pocket disbursements) (collectively, “Losses”) imposed on, sustained, incurred or suffered by, or asserted against, any of the Purchaser Indemnified Parties, whether in respect of third-party claims, claims between the parties hereto, or otherwise, directly or indirectly relating to, or arising out of:

 

(1)           any breach of any representation or warranty made by Assignor under ARTICLE V for the period such representation or warranty survives, it being understood that for purposes of this Section 13.2 any qualifications in the text of any such representation or warranty relating to materiality, Material Adverse Effect, or Knowledge shall be disregarded for purposes of determining whether such representation or warranty was breached or the amount of Losses;

 

(2)           any breach of any covenant or agreement of Assignor contained in this Agreement; and

 

(3)           any of the (i) the Excluded Liabilities (including, for the avoidance of doubt, any of the litigation disclosed in Schedule 5.6) or (ii) Liens that are not Permitted Liens or (iii) or the conduct of the Retained Business after the Primary Closing Date.

 

(b)           Assignor shall not be liable to the Purchaser Indemnified Parties for (i) any Losses in respect of Section 13.2(a)(1) for any individual claim (or group of directly related claims) less than twenty thousand dollars ($20,000) (each a “de minimis loss”) or (ii) any Losses in respect of Section 13.2(a)(1) unless the Losses therefrom exceed an aggregate amount (including all Losses attributable to Assignor) equal to one million two hundred thousand ($1,200,000), and then only for Losses in excess of that amount and up to an aggregate amount equal to twenty-five percent (25%) of the Purchaser Premium.

 

Section 13.3     Indemnification by Purchaser.

 

(a)           Purchaser hereby agrees that from and after the Closing it shall indemnify, defend and hold harmless Assignor, any of its Affiliates, and each of their respective directors, officers, agents and their heirs, successors and permitted assigns, each in their capacity as such (the “Assignor Indemnified Parties” and collectively, with the Purchaser Indemnified Parties, the “Indemnified Parties”) from, against and in respect of any Losses imposed on, sustained, incurred or suffered by, or asserted against, any of the Assignor Indemnified Parties, whether in respect of third-party claims, claims between the parties hereto, or otherwise, directly or indirectly (including any Losses sustained by HSBC for which Assignor must indemnify HSBC pursuant to the Primary Purchase Agreement), relating to, arising out of or resulting from:

 

(1)           any breach of any representation or warranty made by Purchaser under ARTICLE VI for the period such representation or warranty survives, it being understood that for purposes of this Section 13.3 any qualifications in the text of any such representation or warranty relating to materiality, material adverse effect, or Knowledge shall be disregarded for purposes of determining whether such representation or warranty was breached;

 

(2)           any breach of a covenant or agreement of Purchaser contained in this Agreement; and

 

(3)           any of the Assumed Liabilities or the conduct of the Transferred Business after the Closing Date.

 

(b)           Purchaser shall not be liable to the Assignor Indemnified Parties for (i) a de minimis loss in respect of Section 13.3(a)(1) or (ii) any Losses with respect to the matters contained in Section 13.3(a)(1) unless the Losses therefrom exceed an aggregate amount equal to one million two hundred thousand dollars ($1,200,000), and then only for Losses in excess of that amount and up to an aggregate amount equal to twenty-five percent (25%) of the Purchaser Premium.

 

Section 13.4     Third-Party Claim Indemnification Procedures.

 

(a)           In the event that any written claim or demand for which an indemnifying party (an “Indemnifying Party”) may have liability to any Indemnified Party hereunder, other than those relating to Taxes (which are the exclusive subject of ARTICLE X), is asserted against or sought to be collected from any Indemnified Party by a third party (a “Third-Party Claim”), such Indemnified Party shall promptly, but in no event more than ten (10) days following such Indemnified Party’s receipt of a Third-Party Claim, notify the Indemnifying Party in writing of such Third-Party Claim, the amount or the estimated amount of damages sought thereunder to the extent then ascertainable (which estimate shall not be conclusive of the final amount of such Third-Party Claim), any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Claim Notice”); provided, however, that the failure timely to give a Claim Notice shall affect the rights of an Indemnified Party hereunder only to the extent that such failure has a material prejudicial effect on the defenses or other rights available to the Indemnifying Party with respect to such Third-Party Claim. The Indemnifying Party shall have thirty (30) days (or such lesser number of days set forth in the Claim Notice as may be required by court proceeding in the event of a litigated matter) after receipt of the Claim Notice (the “Notice Period”) to notify the Indemnified Party that it desires to assume the defense of the Indemnified Party against such Third-Party Claim.

 

(b)           In the event that the Indemnifying Party notifies the Indemnified Party within the Notice Period that it desires to defend the Indemnified Party against a Third-Party Claim, the Indemnifying Party shall have the right to defend the Indemnified Party by appropriate proceedings and shall have the sole power to direct and control such defense at its expense.  Once the Indemnifying Party has duly assumed the defense of a Third-Party Claim, the Indemnified Party shall have the right, but not the obligation, to participate in any such defense and to employ separate counsel of its choosing.  The Indemnified Party shall participate in any such defense at its expense unless the Indemnifying Party and the Indemnified Party are both named parties to the proceedings and the Indemnified Party shall have reasonably concluded, based on the written advice of counsel, that representation of both parties by the same counsel would be inappropriate due to actual or potential differing material interests between them.  The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise or offer to settle or compromise any Third-Party Claim; provided, however, that no such prior written consent of the Indemnified Party shall be required to any proposed settlement that involves only the payment of money by the Indemnifying Party, includes as an unconditional term thereof the granting by the person asserting such claim or bringing such action of an unconditional release from liability to all Indemnified Parties with respect to such claim and does not include any admission of culpability.

 

(c)           If the Indemnifying Party elects not to defend the Indemnified Party against a Third-Party Claim, whether by not giving the Indemnified Party timely notice of its desire to so defend or otherwise, the Indemnified Party shall have the right but not the obligation to assume its own defense; it being understood that the Indemnified Party’s right to indemnification for a Third-Party Claim shall not be adversely affected by assuming the defense of such Third-Party Claim. The Indemnified Party shall not settle a Third-Party Claim without the consent of the Indemnifying Party and/or its respective insurer.

 

(d)           The Indemnified Party and the Indemnifying Party shall cooperate in order to ensure the proper and adequate defense of a Third-Party Claim, including by providing access to each other’s relevant business records and other documents, and employees.

 

(e)           The Indemnified Party and the Indemnifying Party shall use reasonable best efforts to avoid production of confidential information (consistent with Applicable Law), and to cause all communications among employees, counsel and others representing any party to a Third-Party Claim to be made so as to preserve any applicable attorney-client or work-product privileges.

 

Section 13.5     Consequential Damages.  Notwithstanding anything to the contrary contained in this Agreement, no Person shall be liable under this ARTICLE XIII for any consequential, punitive, special, incidental or indirect damages, including lost profits, except to the extent awarded by a court of competent jurisdiction in connection with a Third-Party Claim.

 

Section 13.6     Adjustments to Losses.

 

(a)           In calculating the amount of any Loss, the proceeds actually received by the Indemnified Party or any of its Affiliates under any insurance policy or pursuant to any claim, recovery, settlement or payment by or against any other Person in each case relating to the Third-Party Claim, net of any actual costs, expenses or premiums incurred in connection with securing or obtaining such proceeds, shall be deducted.  Without limiting the generality or effect of any other provision hereof, each Indemnified Party and Indemnifying Party shall duly execute upon request all instruments reasonably necessary to evidence and perfect the subrogation and subordination rights detailed herein, and otherwise cooperate in the prosecution of such claims.

 

(b)           In calculating the amount of any Loss, there shall be deducted an amount equal to any net Tax benefit actually realized (including the utilization of a Tax loss or Tax credit carried forward) as a result of such Loss by the party claiming such Loss, and there shall be added an amount equal to any actual net Tax detriment resulting from such Loss.

 

(c)           Reimbursement.  If an Indemnified Party recovers an amount from a third-party in respect of a Loss that is the subject of indemnification hereunder after all or a portion of such Loss has been paid by an Indemnifying Party pursuant to this ARTICLE XIII, the Indemnified Party shall promptly remit to the Indemnifying Party the excess (if any) of (i) the amount paid by the Indemnifying Party in respect of such Loss, plus the amount received from the third party in respect thereof, less (ii) the full amount of Loss.

Section 13.7     Payments.  The Indemnifying Party shall pay all amounts payable pursuant to this ARTICLE XIII, by wire transfer of immediately available funds, promptly following receipt from an Indemnified Party of a bill, together with all accompanying reasonably detailed back-up documentation, for a Loss that is the subject of indemnification hereunder, unless the Indemnifying Party in good faith disputes the Loss, in which event it shall so notify the Indemnified Party.  In any event, the Indemnifying Party shall pay to the Indemnified Party, by wire transfer of immediately available funds, the amount of any Loss for which it is liable hereunder no later than three (3) days following any final determination of such Loss and the Indemnifying Party’s liability therefor.  A “final determination” shall exist when (i) the parties to the dispute have reached an agreement in writing, (ii) a court of competent jurisdiction shall have entered a final and non-appealable order or judgment, or (iii) an arbitration or like panel shall have rendered a final non-appealable determination with respect to disputes the parties have agreed to submit thereto.

 

Section 13.8     Mitigation.  Each Indemnified Party shall use its reasonable best efforts to mitigate any indemnifiable Loss.  In the event an Indemnified Party fails to so mitigate an indemnifiable Loss, the Indemnifying Party shall have no liability for any portion of such Loss that reasonably could have been avoided had the Indemnified Person made such efforts.

 

Section 13.9     Survival of Indemnity.  The obligation of Purchaser and Assignor to indemnify under this ARTICLE XIII as to claims covered by Section 13.2(a)(1) and Section 13.3(a)(1), as applicable, shall expire on the first (1st) anniversary of the Closing Date, and shall not apply to any claims made after such date, except that the obligation of Purchaser and Assignor to indemnify with respect to bona fide claims for indemnity made in writing by Assignor Indemnified Parties and Purchaser Indemnified Parties, as applicable, within such one- (1) year period shall continue until final resolution of such claims.

 

Section 13.10     Remedies Exclusive.  Except as otherwise specifically provided herein or in the case of fraud or willful misconduct, the remedies provided in this ARTICLE XIII shall be the exclusive remedies of the parties hereto from and after the Closing in connection with any breach of a representation or warranty, or non-performance, partial or total, of any covenant or agreement contained herein except as to Taxes, as to which the provisions of ARTICLE X shall control exclusively.

 

Section 13.11     No Indemnification by HSBC Sellers of Purchasers.  It is understood and agreed by Purchaser that no HSBC Seller shall have any obligation whatsoever (including under ARTICLE X) to indemnify Purchaser for any matter whatsoever arising in connection with, or arising after, Purchaser’s purchase and assumption of the Transferred Business, including the Purchased Assets and the Assumed Liabilities.

 

Section 13.12     Purchaser’s Release of HSBC and Exculpation of Assignor.  Purchaser hereby releases HSBC and Assignor and their respective Affiliates and waives any claims which Purchaser may now or hereafter have against HSBC, Assignor or any of their respective Affiliates relating to the physical condition of the Purchased Real Property from and after the Closing.  Purchaser hereby agrees that Assignor and its Affiliates shall have no liability to Purchaser for any matters that result from a failure of any HSBC Seller to perform its obligations under the Primary Purchase Agreement except and to the extent that such failure results from a breach by Assignor of its agreements under the Primary Purchase Agreement or this Agreement.

 

 

Section 14.1     Entire Agreement; Amendment.  All Exhibits (attached hereto and as executed) and Schedules hereto shall be deemed to be incorporated into and made part of this Agreement.  This Agreement, together with the Exhibits and Schedules hereto, the Settlement Procedures Agreement and the Transition Services Agreement, contain the entire agreement and understanding among the parties with respect to the subject matter hereof (and supersede any prior agreements, arrangements or understandings among the parties with respect to the subject matter hereof) and there are no agreements, representations, or warranties which are not set forth herein.  No provision of this Agreement may be amended or waived except (i) by a writing signed by Assignor and Purchaser and (ii) with the prior written consent of the HSBC Sellers (which consent shall not be unreasonably withheld, delayed or conditioned); provided that no amendment to this Agreement shall diminish the obligations or liabilities of Assignor or the rights of the HSBC Sellers under the Primary Purchase Agreement or as third party beneficiaries of this Agreement.

 

Section 14.2     Binding Effect; Assignment; Third-Party Beneficiaries.  Except as otherwise provided in this Agreement, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.  Except as expressly provided herein, this Agreement and all rights hereunder may not be assigned by any party hereto except by prior written consent of the other party hereto; provided that Purchaser may assign its right to acquire any asset and/or the obligation to pay all or part of the consideration and to assume any liability to any wholly owned Subsidiary without the prior written consent of the other party hereto; provided, further, that Purchaser agrees to guarantee the performance of any such wholly owned Subsidiary.  The parties intend that this Agreement shall not benefit or create any right or cause of action in or on behalf of any Person other than the parties hereto; provided that the HSBC Sellers are express third party beneficiaries of this Agreement and shall have the right to enforce the provisions of this Agreement against any party hereto to the same extent as if they were a party to this Agreement but only to the extent the provisions sought to be enforced by the HSBC Sellers do not enlarge their rights or expand the obligations or liabilities of Assignor under the Primary Purchase Agreement; provided that nothing in this Agreement shall diminish or offset Assignor’s obligations to the HSBC Sellers with respect to the Transferred Business, Purchased Assets or Assumed Liabilities.

 

Section 14.3     Specific Performance.  The parties hereto acknowledge and agree that (i) monetary damages could not adequately compensate any party hereto in the event of a breach of this Agreement by any other party which results in the failure of the transactions contemplated by this Agreement to be consummated by the Outside Date; (ii) the non-breaching party would suffer irreparable harm in the event of such a breach with such an effect; and (iii) the non-breaching party (or by the HSBC Sellers, as a third-party beneficiaries) shall have, in addition to any other rights or remedies it may have at law or in equity, specific performance and injunctive relief as a remedy for the enforcement hereof.  The parties agree to not seek, and agree to waive, any requirement for the securing or posting of a bond in connection with a party seeking or obtaining any relief pursuant to this Section 14.3.

 

Section 14.4     Counterparts.  This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original as against any party whose signature appears thereon, and all of which shall together constitute one and the same instrument.  This Agreement shall become binding when two or more counterparts hereof, individually or taken together, shall bear the signatures of all of the parties reflected hereon as the signatories.  The execution and delivery of this Agreement may be effected by facsimile or any other electronic means such as “.pdf” or “.tiff” files.

 

Section 14.5     Notices.  All notices, request, demands and other communications required hereunder shall be in writing and shall be deemed to have been duly given or made if delivered personally, sent by facsimile transmission or telex confirmed in writing within two (2) Business Days, or sent by registered or certified mail, postage prepaid, as follows:

 

If to Assignor addressed to:

 

Oliver H. Sommer

Executive Vice President, Corporate Development

First Niagara Financial Group, Inc.

726 Exchange Street, Suite 618

Buffalo, NY 14210

Facsimile:   ###-###-####

 

with a copy to:

 

John Mineo

SVP, General Counsel & Corporate Secretary

First Niagara Financial Group, Inc.

726 Exchange Street, Suite 618

Buffalo, NY 14210

Facsimile:   ###-###-####

 

with an additional copy to:

 

Michael Friedman, Esq.

Pepper Hamilton LLP

3000 Two Logan Square

Eighteenth and Arch Streets

Philadelphia, PA  19103-2799

Facsimile:   ###-###-####

 

and if to Purchaser addressed to:

 

Mark E. Tryniski

President & Chief Executive Officer

Community Bank System, Inc.

5790 Widewaters Parkway

Dewitt NY ###-###-####

Facsimile:   ###-###-####

 

with a copy to:

 

George J. Getman

Executive Vice President & General Counsel

Community Bank System, Inc.

5790 Widewaters Parkway

Dewitt, NY 13214

Facsimile:   ###-###-####

 

with an additional copy to:

 

Ronald C. Berger, Esq.

Bond, Schoeneck & King, PLLC

One Lincoln Center

Syracuse, NY ###-###-####

Facsimile:   ###-###-####

 

Any party may change the address or fax number to which such communications are to be sent to it by giving written notice of change of address to the other party in the manner provided above for giving notice.

 

Section 14.6     Provisions Separable.  The provisions of this Agreement are independent of and separable from each other, and no provision shall be affected or rendered invalid or unenforceable by virtue of the fact that for any reason any other or others of them may be invalid or unenforceable in whole or in part.

 

Section 14.7     Expenses.  Except as otherwise expressly set forth herein, all fees and expenses payable in connection with the consummation of the transactions contemplated by this Agreement shall be the sole liability of the party incurring such expense.

 

Section 14.8     Deadlines.  If the last day of the time period for the giving of any notice or the taking of any action required under this Agreement falls on a Saturday, Sunday or legal holiday or a date on which banks in the State of New York are authorized by law to close, the time period for giving such notice or taking such action shall be extended through the next Business Day following the original expiration date of such.

 

Section 14.9     Scope of Agreements.  This Agreement shall not create any partnership, joint venture or other similar arrangement between Assignor or any of its Affiliates, on the one hand, and Purchaser or any of its Affiliates, on the other hand.

 

Section 14.10     Delays or Omissions.  Any waiver, permit, consent or approval of any kind or character of any breach or default under this Agreement, or any waiver of any provision or condition of this Agreement shall be effective only to the extent specifically set forth in writing.  Notwithstanding any provision set forth herein, no party hereto shall be required to take any action or refrain from taking any action that would cause it to violate any Applicable Law, statute, legal restriction, regulation, rule or order or any Governmental Entity.

 

Section 14.11     Waiver of Jury Trial.  EACH PARTY HERETO HEREBY WAIVES TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY ANY OF THEM AGAINST THE OTHER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, OR ANY OTHER AGREEMENTS EXECUTED IN CONNECTION HEREWITH, OR THE ADMINISTRATION THEREOF OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN OR THEREIN.  NO PARTY TO THIS AGREEMENT 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 RELATED INSTRUMENTS OR THE RELATIONSHIP BETWEEN THE PARTIES.  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 CANNOT BE OR HAS NOT BEEN WAIVED.  THE PROVISIONS OF THIS SECTION HAVE BEEN FULLY DISCUSSED BY THE PARTIES HERETO, AND THESE 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.

 

Section 14.12     Governing Law; Consent to Jurisdiction.  The execution, interpretation, and performance of this Agreement shall be governed by the laws of the State of New York without giving effect to any conflict of laws provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the law of any other jurisdiction other than the State of New York.  EACH PARTY HERETO, TO THE EXTENT IT MAY LAWFULLY DO SO, HEREBY SUBMITS TO THE JURISDICTION OF ANY COURT OF THE STATE OF NEW YORK LOCATED IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY AND THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, 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 CONTEMPLATED HEREBY AND EXPRESSLY WAIVES ANY AND ALL OBJECTIONS IT MAY HAVE AS TO VENUE IN ANY OF SUCH COURTS.

 

 

IN WITNESS WHEREOF, each of the parties hereto has caused this Assignment, Purchase and Assumption Agreement to be duly executed as an instrument under seal by its officer thereunto duly authorized as of the date first above written.

 

	FIRST NIAGARA BANK, NATIONAL ASSOCIATION
	By:	/s/ John R. Koelmel
		Name:  John R. Koelmel
		Title:    Chief Executive Officer
	COMMUNITY BANK, NATIONAL ASSOCIATION
	By:	/s Mark E. Tryniski
		Name:  Mark E. Tryniski
		Title:    President and Chief Executive Officer