Contract

Exhibit 2.1 PURCHASE AND ASSUMPTION AGREEMENT BOSTON BRANCH OFFICE dated as of February 22, 2005 between ATLANTIC BANK OF NEW YORK and THE FIRST NATIONAL BANK OF IPSWICH Table of Contents Page —- ARTICLE IDEFINED TERMS……………………………………………………….4 Section 1.1 Definitions…………………………………………..4 ARTICLE IITERMS OF ASSIGNMENT AND ASSUMPTION AND PURCHASE…………………………7 Section 2.1 Transfer of Assets…………………………………….7 Section 2.2 Assignment and Assumption of Liabilities…………………7 Section 2.3 Consideration to Seller………………………………..7 Section 2.4 Consideration to Purchaser……………………………..8 Section 2.5 Payment and Timing…………………………………….8 Section 2.6 Post Closing Adjustment………………………………..9 ARTICLE IIICOVENANTS………………………………………………………….10 Section 3.1 Settlement Operations after Closing…………………….10 Section 3.2 Items in Transit……………………………………..11 Section 3.3 Stop Payment Items……………………………………11 Section 3.4 Unreconciled Passbook Accounts…………………………12 Section 3.5 Books and Records…………………………………….12 Section 3.6 Data Processing………………………………………13 Section 3.7 Regulatory Approvals………………………………….13 Section 3.8 IRAs………………………………………………..14 Section 3.9 Contracts……………………………………………14 Section 3.10 Change of Name and Notice to Customers…………………15 Section 3.11 Removal of Signage…………………………………..16 Section 3.12 Taxes………………………………………………16 Section 3.13 Employees and Employee Benefits……………………….16 Section 3.14 Safe Deposit Boxes…………………………………..18 Section 3.15 ABA Routing Number…………………………………..18 Section 3.16 Seller’s Actions Prior to Closing……………………..18 Section 3.17 Purchaser’s Actions Prior to Closing…………………..19 Section 3.18 Cooperation and Further Assurances…………………….19 Section 3.19 Post-Closing Cooperation……………………………..19 ARTICLE IVCOVENANT NOT TO COMPETE……………………………………………..20 Section 4.1 Solicitation of Accounts………………………………20 Section 4.2 Enforcement and Remedies………………………………20 i Table of Contents Page —- ARTICLE VREPRESENTATIONS AND WARRANTIES OF SELLER………………………………20 Section 5.1 Corporate Organization………………………………..20 Section 5.2 Authorization………………………………………..20 Section 5.3 Approvals to Operate Branch……………………………21 Section 5.4 Litigation…………………………………………..21 Section 5.5 Non-Contravention…………………………………….21 Section 5.6 Consents and Approvals………………………………..21 Section 5.7 Agents or Brokers…………………………………….22 Section 5.8 Deposits…………………………………………….22 Section 5.9 Books and Records…………………………………….22 Section 5.10 Disclaimer………………………………………….22 ARTICLE VIREPRESENTATIONS AND WARRANTIES OF PURCHASER……………………………22 Section 6.1 Corporate Organization………………………………..22 Section 6.2 Authorization………………………………………..22 Section 6.3 Litigation…………………………………………..23 Section 6.4 Non-Contravention…………………………………….23 Section 6.5 Consents and Approvals………………………………..23 Section 6.6 Agents or Brokers…………………………………….24 Section 6.7 Deposits…………………………………………….24 Section 6.8 Absence of Inducements………………………………..24 ARTICLE VIICONDITIONS TO CLOSING……………………………………………….24 Section 7.1 Conditions to Obligations of All Parties………………..24 Section 7.2 Additional Conditions to Obligations of Purchaser………..25 Section 7.3 Additional Conditions to Obligations of Seller…………..26 ARTICLE VIIIINDEMNIFICATION…………………………………………………….27 Section 8.1 Seller’s Indemnification………………………………27 Section 8.2 Purchaser’s Indemnification……………………………27 ARTICLE IXTERMINATION………………………………………………………..28 Section 9.1 Events of Termination…………………………………28 Section 9.2 Exception……………………………………………28 Section 9.3 Effect of Termination…………………………………28 ii Table of Contents Page —- ARTICLE X MISCELLANEOUS……………………………………………………29 Section 10.1 Expenses……………………………………………29 Section 10.2 Notices…………………………………………….29 Section 10.3 Survival……………………………………………30 Section 10.4 Confidentiality……………………………………..30 Section 10.5 Entire Agreement…………………………………….33 Section 10.6 Modification………………………………………..33 Section 10.7 Waivers…………………………………………….33 Section 10.8 Enforceability………………………………………33 Section 10.9 Schedules, Exhibits and Headings………………………33 Section 10.10 Successors and Assigns………………………………34 Section 10.11 Counterparts……………………………………….34 Section 10.12 Governing Law………………………………………34 Section 10.13 Public Announcements………………………………..34 iii PURCHASE AND ASSUMPTION AGREEMENT This PURCHASE AND ASSUMPTION AGREEMENT (the “Agreement”) is made andentered into as of February 22, 2005, by and between ATLANTIC BANK OF NEW YORK(“Seller”), a New York commercial bank, and THE FIRST NATIONAL BANK OF IPSWICH(“Purchaser”), a national bank. W I T N E S S E T H: WHEREAS, Seller and Purchaser are engaged in the banking business in theCommonwealth of Massachusetts, the deposit accounts of Seller are insured by theBank Insurance Fund of the Federal Deposit Insurance Corporation (“FDIC”) andthe deposit accounts of Purchaser are insured by the Bank Insurance Fund of theFDIC; and WHEREAS, Seller operates a bank branch facility located at 33 StateStreet, Boston, Massachusetts 02109 (“Branch”); and WHEREAS, Seller desires to sell and transfer the deposit liabilities andcertain assets associated with the Branch to Purchaser; and WHEREAS, the purchase and transfer of liabilities and assets ascontemplated hereby are subject to certain regulatory approvals and notices. NOW, THEREFORE, in consideration of the premises, the mutual promises andcovenants hereinafter set forth and other good and valuable consideration thereceipt and sufficiency of which are hereby acknowledged, Seller and Purchaseragree as follows: ARTICLE I DEFINED TERMS Section 1.1 Definitions. For purposes of this Agreement, the following terms shall have thefollowing meanings: “Assets” shall mean (a) all of Seller’s rights, title and interest in andto the Contracts and Safe Deposit Business; (b) Cash on Hand; (c) the PersonalProperty; and (d) the Loans. “Assignment and Assumption Agreement” shall mean the Assignment andAssumption Agreement in the form attached hereto as Exhibit A. “Branch Employees” shall have the meaning as set forth in Section 3.13(b)hereof. 4 “Business Day” shall mean shall mean a Monday, Tuesday, Wednesday,Thursday and Friday that is not a day on which banking institutions inMassachusetts are generally authorized or obligated by law or executive order toclose. “Cash on Hand” shall mean all cash on hand at the Branch, as of theEffective Time, including vault cash, ATM cash, petty cash and teller’s cash. “Closing” shall mean the completion of the assumption of the Deposits asprovided for hereunder writing. The Closing shall take place at Craig andMacauley Professional Corporation, Federal Reserve Plaza, 600 Atlantic Avenue,Boston, MA at 10:00 a.m. at such place and time as the parties may mutuallyagree in writing. “Closing Date” shall mean the date on which the Closing shall occur, whichshall be the earliest practicable date after the date on which all conditionsset forth in this Agreement shall have been satisfied or shall have been waivedand all applicable waiting periods shall have expired, or such other date as theparties may agree in writing. “Contracts” shall mean the agreements, contracts, leases and otherinstruments made by or with respect to the operation of the Branch thatPurchaser elects to assume hereunder in accordance with Section 3.9 hereof. “Contract Liabilities” shall mean any and all liabilities of Sellerarising on or after the Effective Time under any of the Contracts set forth inSchedule 1.1(a). “Deposits” shall mean those deposit liabilities on the books of theBranch, as determined in accordance with the customary practice of the Seller,as of the Effective Time, which are defined as deposits in Section (3)(l) of theFederal Deposit Insurance Act, 12 U.S.C. ss.1813(l), and including all IRAAccounts for which (a) Seller serves as trustee or custodian and (b) the assetsof which consist solely of deposits, any collected and uncollected depositsassociated therewith together with all interest accrued, credited or paidthereon up to and including the Effective Time hereto. The Deposits as of thedate of this Agreement are more particularly described in Schedule 1.1 (b)attached hereto. “Effective Time” shall mean 6:01 p.m. on the Closing Date. “Federal Funds Rate” shall mean, for the period involved, the average ofthe interest rates for each day of the period set forth in H.15 (519) oppositethe caption “Federal Funds (Effective).” H.15 (519) means the weekly statisticalrelease designated as such, or any successor publication, published by the Boardof Governors of the Federal Reserve System. “IRA Account” shall mean an Individual Retirement Account, as such term isdefined in the Internal Revenue Code, for which Seller serves as trustee orcustodian, the assets of which consist solely of deposit liabilities of theSeller. 5 “Liabilities” shall mean the aggregate of the Deposits, the ContractLiabilities and all obligations of Seller arising on or after the Effective Timewith respect to the Safe Deposit Business. “Loan Purchase Agreement” shall mean the Loan Purchase Agreement in theform attached hereto as Exhibit B. “Personal Property” shall mean all furniture and equipment owned or leasedby Seller and located at the Branch as of the Effective Time, including, withoutlimitation, furniture, office machinery, shelving, office supplies and otherpersonal property, but excluding computer equipment, attached or appurtenant tothe Branch and used for or usable in the occupancy or operation of the Branch.The Personal Property as of the close of business on the Business Dayimmediately prior to the date hereof is listed on Schedule 1.1 (c) attachedhereto, which shall be updated by Seller as of a date no more than five (5)calendar days prior to the Closing Date. The term “Personal Property” shall notinclude the existing Seller signage located at the Branch. “Regulatory Approval Date” shall mean the date on which all regulatoryapprovals necessary for Seller and Purchaser to consummate the transactionscontemplated by this Agreement have been obtained. “REIT Loan Purchase Agreement” shall mean the REIT Loan Purchase Agreementin the form attached hereto as Exhibit C. “Safe Deposit Boxes” shall mean all safe deposit boxes owned by Seller asof the Closing Date located at the Branch, including any removable safe depositboxes and safe deposit stacks in the vaults at the Branch, all right and benefitof Seller accrued as of the Closing Date under the rental agreements withrespect to the safe deposit boxes located at the Branch and all keys andcombinations thereto. The Safe Deposit Boxes owned or leased by Seller as of theclose of business on the Business Day immediately prior to the date hereof arelisted on Schedule 1.1 (d) attached hereto, which shall be updated by Seller asof a date no more than five (5) calendar days prior to the Closing Date. “Safe Deposit Business” shall mean all right, title, and interest in andto the safe deposit business conducted by Seller at the Branch, including butnot limited to, the physical assets of the Safe Deposit Boxes located in thevaults at the Branch, all safe deposit lease agreements with the lesseesthereof, safe deposit box keys, signature cards, combinations, agreements andrecords pertaining to the operation of the safe deposit business located at orrelated to the Branch. “Settlement Date” shall have meaning set forth in Section 2.6(c) of thisAgreement. Capitalized terms not defined herein shall have the meanings defined inthe Loan Purchase Agreement or the REIT Loan Purchase Agreement, whichever isapplicable. 6 ARTICLE II TERMS OF ASSIGNMENT AND ASSUMPTION AND PURCHASE Section 2.1 Transfer of Assets. At the Closing, subject to the terms andconditions set forth herein, Seller will sell, convey, assign and transfer toPurchaser and Purchaser shall purchase from Seller, at the price and upon theterms and conditions set forth in this Agreement, all of Seller’s right, titleand interest, as of the Effective Time, in and to the Assets free and clear ofall liens and encumbrances. Section 2.2 Assignment and Assumption of Liabilities. Except as otherwiseprovided in this Agreement, on the Closing Date, Purchaser shall assume andundertake to pay, perform, fulfill and discharge the Liabilities as shown on thebooks and records of the Branch as of the Effective Time, in accordance with theterms and conditions of the Liabilities in effect at the Effective Time.Notwithstanding the foregoing, nothing contained herein shall prevent Purchaserfrom changing the terms and conditions of the Liabilities after the EffectiveTime, subject to applicable laws and regulations. In addition, nothing containedherein shall be construed as creating any rights or remedies against Purchaserby third parties other than with respect to those Liabilities expressly assumedhereunder. Section 2.3 Consideration to Seller. As consideration for the purchase ofAssets and the assumption of Liabilities, Purchaser shall pay to Seller, asprovided in Section 2.5 hereof: (a) an amount equal to eight percent (8.0%) of the balance ofDeposits assumed by the Purchaser, including accrued and unpaid interestthereon, as of the Effective Time (the “Premium Amount”) Date; (b) the Cash On Hand (the “Cash Amount”); (c) the value of the Personal Property on the books of the Seller asof the Closing Date (“Book Value of Personal Property”); and (d) an amount equal to the Loan Amount. (e) The sum of the Premium Amount, the Cash Amount, the Book Valueof Personal Property and the Loan Amount shall hereinafter be referred tocollectively as the “Purchaser Payment Amount.” 7 Section 2.4 Consideration to Purchaser. As consideration for Purchaser’sassumption of the Liabilities, Seller shall pay to Purchaser an amount equal tothe amount of the Deposits as of the Closing Date, including accrued but unpaidinterest thereon. Seller shall pay or credit to the appropriate customeraccount, as of the Effective Time, all interest accrued on the Deposits up tothe Effective Time. Section 2.5 Payment and Timing. (a) Consideration to Purchaser. (i) On the Closing Date, Seller shall deliver to Purchaser by wire transfer, and to such account as may be specified by Purchaser, an amount equal to the Deposits as of the close of business on the Business Day immediately prior to the Closing Date, including accrued, but unpaid interest on such Deposits. (ii) On the Business Day immediately following the Closing Date, Seller shall deliver to Purchaser by wire transfer, and to such account as may be specified by Purchaser, an amount equal to the Deposits as of the close of business on the Closing Date, including accrued, but unpaid interest on such Deposits, less the amount paid pursuant to Section 2.5(a)(i). (iii) If the amount of the payments made to Seller pursuant to Section 2.5(b)(i) exceeds the amount payable to Seller pursuant to Section 2.5(b)(ii), then on the Business Day immediately following the Closing Date, Seller shall pay to Purchaser the difference between such amounts, by wire transfer, and to such account as may be specified by Purchaser. (b) Consideration to Seller. (i) On the Closing Date, Purchaser shall deliver to Seller by wire transfer, and to such account as may be specified by Seller, an amount equal to the sum of: (a) seventy-five percent (75%) of the Premium Amount (the “Paid Premium Amount”) as calculated as of the close of business on the Business Day immediately prior to the Closing Date, subject to adjustment as set forth in Section 2.6; (b) the Cash Amount as calculated as of the close of business on the Business Day immediately prior to the Closing Date; (c) the Book Value of Personal Property as calculated as of the close of business on the Business Day immediately prior to the Closing Date; and 8 (d) the Loan Amount as calculated as of the close of business on the date of the Loan Schedule. (ii) On the Business Day immediately following the Closing Date, Purchaser shall deliver to Seller by wire transfer, and to such account as may be specified by Seller, the amount provided for in Section 2.5(b)(i) as calculated as of the close of business on the Closing Date, less the amount paid pursuant to Section 2.5(b)(i). (iii) If the amount of the payments made to Purchaser pursuant to Section 2.5(a)(i) exceeds the amount payable to Purchaser pursuant to Section 2.5(a)(ii), then on the Business Day immediately following the Closing Date, Purchaser shall pay to Seller the difference between such amounts, by wire transfer, and to such account as may be specified by Seller. (c) Accrual of Interest. If the Closing Date is a Friday, Seller andPurchaser agree that interest on certificates of deposit as calculated byMetavante for the Closing Date and the two (2) calendar days immediatelyfollowing the Closing Date will accrue to Purchaser, provided that Purchasershall reimburse Seller for one-third of such accrued interest on the BusinessDay immediately following the Closing Date. (d) Seller and Purchaser may agree to an arrangement whereby Sellershall deliver to Purchaser an amount equal to the difference between the amountto be delivered by Seller under Section 2.5(a) and the amount to be delivered byPurchaser under Section 2.5(b). Section 2.6 Post Closing Adjustment. (a) Within one hundred five (105) calendar days after the ClosingDate, Purchaser shall deliver to Seller a written report, certified byPurchaser, which report shall set forth the Deposits assumed by Purchaser thatremain with Purchaser as of the close of business on the date that is ninety(90) calendar days after the Closing Date (the “Updated Deposit Payment Amount”)and the adjusted Premium Amount based on the Updated Deposit Payment Amount,calculated as eight percent (8.0%) of the Updated Deposit Payment Amount (the”Updated Premium Amount”), which Updated Premium Amount shall not be less than$1,250,000. (b) Seller shall have a period of ten (10) Business Days followingreceipt of Purchaser’s report described in Section 2.6 hereof to examine suchreport and Purchaser shall cooperate with Seller, its employees, representativesand agents in their examination of such report. 9 (c) The Business Day immediately following the conclusion of thetenth (10th) Business Day period set forth in Section 2.6 hereof shall be calledthe “Settlement Date.” On the Settlement Date the following settlements shall bemade: (i) in the event that the Updated Premium Amount exceeds the Paid Premium Amount, Purchaser shall pay to Seller, by wire transfer and to such account as may be specified by Seller, an amount equal to (x) the difference obtained by subtracting the Paid Premium Amount from the Updated Premium Amount plus (y) the interest on such difference for the number of calendar days from and including the Closing Date to but excluding the Settlement Date (the “Interest Period”) at the Federal Funds Rate; and (ii) in the event that the Paid Premium Amount exceeds the Updated Premium Amount, Seller shall pay to Purchaser, by wire transfer and to such account as may be specified by Purchaser, an amount equal to (x) the difference obtained by subtracting the Updated Premium Amount from the Paid Premium Amount plus (y) the interest on such difference for the Interest Period at the Federal Funds Rate. (d) Resolution of Disputed Payment Amount. Seller and Purchaseragree that if they fail to reach agreement as to the calculation of any of thepayments set forth in this Section 2.6, the matter shall be referred to anindependent firm of certified public accountants of national standing reasonablyacceptable to Purchaser and Seller, and Purchaser and Seller agree to be boundby the determination of such firm with respect to any such matter referred to itfor settlement. Purchaser and Seller agree to share equally the fees and chargesof such firm for services rendered by it in resolving the disputed mattersreferred to it by the parties hereto. (e) Post-Closing Adjustment. All post-closing adjustments requiredby Section 2.6 of this Agreement shall take into account payments made byPurchaser to Seller and by Seller to Purchaser on both the Closing Date and theBusiness Day immediately following the Closing Date. ARTICLE III COVENANTS Section 3.1 Settlement Operations after Closing. Seller and Purchaserhereby agree that, for sixty (60) days after the Closing Date, or such longerperiod to which Purchaser and Seller may agree: (a) Seller shall remit to Purchaser all payments received by Sellerintended for deposit to accounts which are Deposits. 10 (b) Seller shall cooperate with Purchaser and take all reasonablesteps required by Purchaser to ensure that, with respect to checks or draftsdrawn against accounts that are Deposits, each such item that is coded forpresentment to Seller or to any bank for the account of Seller is available fordelivery to Purchaser’s messenger at such time and place that the parties heretoshall agree for purposes of reconciling Purchaser’s “midnight deadline” withrespect to such item, as provided in Sections 4-104(a)(10) and 4-202(2) of theMassachusetts Uniform Commercial Code, or any shorter period for determiningwhen return of an item is no longer timely under any applicable clearing houserule or agreement, it being understood that Seller shall be under no obligationwith respect to any such items after their delivery, if the items are timelydelivered in the agreed upon manner. Purchaser and Seller hereby acknowledgethat time is of the essence with respect to the foregoing. (c) Seller shall remit to Purchaser electronic funds transferdeposits and deposits made through automated clearing house transactions madeafter the Effective Time with respect to accounts allocated to the Branch.Promptly following the Closing, Seller and Purchaser shall cooperate to obtainall consents necessary to enable electronic funds transfer deposits andautomated clearing house transactions with respect to the Deposits to be madedirectly to Purchaser. (d) To the extent permitted by law and the applicable Depositcontracts, Purchaser agrees that it will honor all properly drawn checks,drafts, withdrawal orders and similar items drawn on the checks, drafts orwithdrawal forms of Seller by Seller’s depositors whose deposits are assumed byPurchaser and that are timely presented to Purchaser by mail, or over itscounters or through clearing houses, and, if applicable, to reimburse Seller infull should Seller make payment on any such check or draft to the extent fundsare available. Purchaser further agrees that it will in all other respectsdischarge, in the ordinary course of business, the duties and the obligations ofSeller with respect to balances due and owing to the depositors whose depositsare assumed by Purchaser. Section 3.2 Items in Transit. Purchaser shall obtain the benefit of allitems relating to or originating from the Branch that are in transit as of theEffective Time and are handled in accordance with Seller’s usual and customarypractices and procedures. If any item relating to or originating from the Branchis in transit as of the Effective Time and is returned to Purchaser, Purchasershall use its best efforts to collect such returned item and charge the sameback to the applicable Deposit account; however, if the item to be charged backto the Deposit account to which it relates would result in a negative balance insuch account, Purchaser shall not charge back such item but shall promptlyreturn it to Seller, and Seller shall promptly reimburse Purchaser for theamount of any item so returned less the available balance in the account. Section 3.3 Stop Payment Items. Purchaser agrees to honor all stop paymentorders relating to the deposit accounts being assumed that have been initiatedprior to the Closing Date and reflected in stop payment documents or computerrecords delivered to Purchaser on the Closing Date or immediately thereafter. Inthe event that Purchaser shall make any payment in violation of a stop paymentorder initiated prior to the Closing Date, but not reflected in stop payment 11documents or computer records delivered to Purchaser by Seller prior to suchpayment, Seller shall indemnify, hold harmless and defend Purchaser from andagainst all claims, losses and liabilities, including reasonable attorneys’ feesand expenses, arising out of any such payment. However, if following receipt ofappropriate stop payment order documentation, Purchaser makes any payment inviolation of any such order, Purchaser shall be liable for such payment andshall indemnify, hold harmless and defend Seller from and against all claims,losses and liabilities, including reasonable attorneys’ fees and expenses,arising out of such payment. Section 3.4 Unreconciled Passbook Accounts. A list of Seller’sunreconciled passbook accounts is attached hereto as Schedule 1.1(e) (the”Unreconciled Passbook Accounts”). Seller confirms and agrees that it shall besolely responsible to any customer whose Unreconciled Passbook Account istransferred to Purchaser to the extent, if any, that the obligations of Sellerto such customer with respect to such Unreconciled Passbook Account at theEffective Time exceeded the amounts for such Unreconciled Passbook Account setforth in Schedule 1.1(e) hereto regardless of when Seller and Purchaser receivenotice of such claim, but only to the extent that Seller would have beenresponsible for such amount under applicable law, taking into account anystatute of limitations or similar law or regulation, as if Seller had notentered into this Agreement. Seller confirms and agrees that any claim relatedto an Unreconciled Passbook Account made by a customer against Purchaser for anamount which as of the Effective Time exceeded that on Schedule 1.1(e) for suchUnreconciled Passbook Account shall be indemnified by Seller pursuant to theprovisions of Section 8.1 this Agreement. Section 3.5 Books and Records. (a) Transfer of Books and Records. To the extent permitted byapplicable law, Seller shall transfer and deliver to Purchaser (i) on theClosing Date, all of the records of Seller pertaining to the Deposits and (ii)on the Closing Date, or as soon as practicable thereafter, all of the records ofSeller in its possession that are reasonably capable of transfer pertaining tothe Deposits. The records to be transferred hereunder shall include but are notlimited to signature cards, Deposit agreements, all records relating to trusteeprocess, liens, levies (tax or otherwise), and subpoenas or suspicious activityreports generated pursuant to Bank Secrecy Act and/or USA PATRIOT Actrequirements, documents relating to ongoing or threatened litigation relating toany Deposits and other Deposit records. (b) Retention of Copies. Seller shall make available for inspectionby the Purchaser, for a period of three (3) years following the Closing Date,any books and records, or copies thereof, pertaining to the Deposits, andPurchaser may, at its own expense, make such copies of and excerpts from suchbooks and records as it may deem desirable; provided, that nothing containedherein shall require Seller to maintain such books and records longer than theperiod required by law, unless (i) any actual action has been brought prior tothe end of the one year period, then Seller shall maintain such books andrecords until the action is disposed of without further appeal, or (ii) theparties shall agree upon a longer period; provided further, that Purchaser and 12Seller shall not have a right of examination of any books, records ordocumentation or copies thereof pertaining to transactions that occur after theClosing Date; provided further, however, that Seller shall provide to Purchasercopies of all passbook records within fifteen (15) Business Days following thedate of this Agreement, which records shall be updated no more than two (2)Business Days prior to the Closing Date; and provided further, however, that inthe event that as of the end of such period, any tax year of either party isopen to examination by any taxing authority, such books and records pertainingto the Assets purchased shall be maintained by the other party until a finaldisposition of the tax liability of such party for that year has been finallydetermined. Each party agrees to notify the other party upon written request ofany open tax years at the end of such period. Section 3.6 Data Processing. (a) Tapes and Trial Balances. Seller has provided Purchaser with atrial balance tape or Excel spreadsheet with corresponding paper trial balanceas of September 30, 2004 with respect to each of the Loans to be purchased byPurchaser and each of the Deposits to be assumed by Purchaser, together with theadditional documents available to Seller which Purchaser shall reasonablyrequest. Beginning December 31, 2004, within ten (10) Business Days after theend of each month thereafter, or as soon thereafter as is practicable, Sellershall provide Purchaser with a schedule of month end balances with respect toeach of the types of loans to be purchased by Purchaser and deposit accounts tobe assumed by Purchaser, together with the additional documents available toSeller that Purchaser shall reasonably request. Seller shall also providePurchaser with a trial balance tape with corresponding paper trial balance as ofthe Closing Date with respect to each of the Loans to be purchased by Purchaserand each of the Deposits to be assumed by Purchaser. (b) Transfer of Information. Purchaser and Seller shall cooperatewith each other, and shall cause their service bureaus to cause the transfer, asof the Effective Time on the Closing Date, or as soon as practicable thereafter,of all information and records relating to the Deposits from Seller’s computersystem to Purchaser’s computer system. (c) Data Processing Conversion. Purchaser and Seller shall use, andshall cause their service bureaus to use, all commercially reasonable efforts toensure that any data processing system conversion to be undertaken in connectionwith the Branch will be completed on the Closing Date. Section 3.7 Regulatory Approvals. Promptly following the date hereof,Purchaser shall apply to the Office of the Comptroller of the Currency and anyother applicable regulatory agency for approval to assume the Deposits andpurchase the assets, including without limitation, the Loans and the Premises.Purchaser and Seller shall each use its commercially reasonable efforts toobtain such approvals. Purchaser and Seller shall cooperate with each other inthe preparation of all applications required to be filed, with any otherapplicable regulatory agency and Purchaser and Seller shall further cooperatewith each other to obtain the approval of, or to provide notice to, suchregulatory agencies and all other regulatory or other approvals, consents and 13permissions necessary to consummate the transactions contemplated hereby. Sellershall provide to Purchaser or to the appropriate regulatory authorities allinformation required to be submitted by Seller in connection with obtaining suchapproval, or providing such notice to, such regulatory agencies. Purchaser andSeller shall provide one another with copies of all applications and amendmentsthereto submitted pursuant to this Section 3.7; provided that any provisions insuch application deemed to be confidential may be omitted from such copies.Seller agrees to approve, execute and deliver any other documents or materials,including any amendment to this Agreement that may be reasonably requested byPurchaser if a modification of the structure of the proposed transaction isreasonably deemed necessary or appropriate by Purchaser; provided, that any suchmodification does not adversely affect the economic benefit of the transactionto Seller, does not adversely affect the timing or delay the consummation of theproposed transaction in any material respect, or does not otherwise reduce thelikelihood of the consummation of the transaction in any material respect. Section 3.8 IRAs. Within such period prior to the Closing Date as isrequired by applicable law, regulation or contractual obligation, Seller shall,at Seller’s cost and expense and in accordance with the applicable customeragreement, resign as trustee or custodian from, and appoint Purchaser assuccessor trustee or custodian for, each IRA for which (a) Seller serves astrustee or custodian, and (b) the assets consist solely of Deposits. Sellershall, at Purchaser’s cost and expense, use its best efforts to provide noticeto each customer of the appointment of Purchaser as successor trustee orcustodian for each such IRA, and to request that such customer either consent toPurchaser’s appointment as successor IRA trustee or custodian or, within ninety(90) days of such notice, transfer the IRA or appoint a different successortrustee or custodian. A form of such notice is attached to this Agreement asExhibit D. Seller shall in any event take all necessary action to ensure thatthe IRAs will be transferred to Purchaser on the Closing Date. If any customerobjects to the transfer of an IRA, such IRA shall not be transferred to thePurchaser, and shall not be considered to be a Deposit hereunder. Section 3.9 Contracts. (a) Seller has delivered to Purchaser true, complete and accuratecopies of each of the contracts set forth in Schedule 1.1(a) attached hereto.Purchaser shall provide Seller with a schedule setting forth the Contracts (the”Contract Schedule”), within ten (10) Business Days after the date of thisAgreement. Purchaser may by written notice to Seller prior to the Closing Dateexclude from the Contract Schedule any Contracts that require the consent of athird party in order to be assigned to Purchaser, if, in each case, consent hasnot been obtained fifteen (15) calendar days prior to the Closing Date. Anupdated Contract Schedule shall be delivered by Purchaser to Seller no more thanfive (5) Business Days prior to the Closing Date. (b) In connection with the transfer and assignment of the Contractsto Purchaser, Seller shall, to the extent permitted by the applicable Contracts,obtain all consents of third parties other than regulatory agencies necessary toconsummate the transactions contemplated hereunder or to prevent a breach ordefault under any such Contracts. If Seller is unable to obtain a required 14consent under any Contract, Seller shall cooperate with Purchaser to obtain forPurchaser, at Seller’s cost, the benefits under such Contract, includingenforcement of any and all rights of Seller against the other party or partiesthereto. Section 3.10 Change of Name and Notice to Customers. (a) Notification of Deposit Transfer. Promptly after regulatoryapproval has been granted, Seller shall, and Purchaser at its option may, notifyall customers of the Branch of the transactions contemplated hereby; provided,that no such notice shall be given unless the other party shall consent to thetext of such notice prior to its release, which consent shall not beunreasonably withheld; provided further, that Purchaser may not mail tocustomers any replacement checkbooks, passbooks or other similar materialssooner than fifteen (15) days prior to the Closing Date. Nothing containedherein shall prevent Seller from giving notice to customers prior to the timereferenced in this Section 3.10(a); provided, that no such notice shall be givenunless Purchaser shall consent to the text of such notice prior to its release,which consent shall not be unreasonably withheld. (b) Change of Name on Documents. Purchaser shall take the followingactions with respect to changing the name on the documents pertaining to theBranch: (i) within fifteen (15) Business Days after the Closing Date, notify all persons who are customers of the Branch on the Closing Date of such change of name and of the transactions consummated pursuant hereto; (ii) within thirty (30) days after the Closing Date, use reasonable efforts to cause all checkbooks to be reissued in Purchaser’s name; (iii) within fifteen (15) Business Days after the Closing Date, use reasonable efforts to cause all passbooks and other materials to be reissued in Purchaser’s name; and (iv) from and after the Effective Time on the Closing Date, issue all monthly statements to depositors as may be required by the applicable Deposit contracts in accordance with Purchaser’s usual and customary practices.In order to assist Purchaser in undertaking its obligations hereunder, Selleragrees that on the Closing Date, it will provide Purchaser with a list of thecustomers of the Branch as of the close of business on the Business Dayimmediately prior to the Closing Date, together with a tape containing suchcustomer list, and any other information or documentation available to Sellerthat Purchaser shall reasonably request. Purchaser further agrees that if Seller’s customers present theirpassbooks to Purchaser, Purchaser will promptly cancel all such Sellerpassbooks. Both parties agree that Purchaser shall not issue passbooks relatedto an account acquired from Seller to any customer without receiving either such 15customer’s Seller passbook or an affidavit of such customer that his or herSeller passbook has been lost or stolen. Purchaser agrees to retain any suchaffidavit of lost passbook in its records for a seven (7) year period from thedate of such affidavit. Except as otherwise specifically provided for herein, nothing in thisSection shall require Purchaser to undertake to reissue evidences of Deposits orrewrite other documents assumed by or assigned to Purchaser on the Closing Dateexcept in the ordinary course of business. Section 3.11 Removal of Signage. Seller and Purchaser agree that Purchaserwill pay for the removal of all Seller signage at the Branch and that, on theClosing Date, Seller will reimburse Purchaser for all reasonable costs andexpenses associated with such removal; provided, that, Seller has been providedwith evidence of such reasonable costs and expenses prior to the close ofbusiness the day before the Closing Date. If evidence satisfactory to Seller isnot provided by such time, Seller shall reimburse Purchaser for such reasonablecosts and expenses promptly after receipt of such evidence Section 3.12 Taxes. (a) For federal income tax reporting purposes, Seller will reportall interest accrued and paid with respect to all Deposits up to the EffectiveTime on the Closing Date. Purchaser will report all interest accrued and paidwith respect to all Deposits from the Effective Time on the Closing Dateforward. (b) Except as otherwise provided in this Agreement, Purchaser shall,as of the Effective Time on the Closing Date, assume all applicable taxwithholding requirements relating to the Deposits under the Internal RevenueCode of 1986, as amended (the “Code”), and any other applicable laws andregulations. Section 3.13 Employees and Employee Benefits. (a) Seller agrees that upon the Effective Time, all employees of theBranch shall become employed by the Purchaser and shall cease to be employed bythe Seller. (b) Purchaser acknowledges and agrees that it will hire allemployees currently employed by the Branch at the same annual rates of salarypaid to each such employee as of the Closing Date and that such employees shallbe considered “Branch Employees.” (c) Purchaser shall not treat the Branch Employees as new hires,more specifically: (i) Purchaser shall recognize each Branch Employee’s periods of service with Seller for purposes of vesting and eligibility (but not benefit accrual) under Purchaser’s 401(k) plan and any other employee benefit plan or program maintained by Purchaser with service-based eligibility or vesting criteria, as well as under 16 Purchaser’s employee vacation and sick leave policies including any carry-over of unused vacation or sick leave accrued for service with Seller; provided, however, that nothing herein shall require Purchaser to maintain any employee benefit plans or policies that are identical or similar to those maintained by Seller; (ii) Purchaser shall cause each Branch Employee who is covered by a group life, health, medical, dental, vision or long-term disability insurance plan of Seller on the Closing Date to be covered, as of the Effective Time, under the comparable plan of Purchaser, to the extent that Purchaser provides such plans, on terms and conditions no less favorable than the terms and conditions then applicable to other employees of Purchaser; and (iii) To the extent a Branch Employee becomes covered under a group life, health, medical, dental, vision or long-term disability insurance plan of Purchaser immediately after the Closing Date (A) such plan shall not apply any preexisting condition limitations to Branch Employees, except to the extent any preexisting condition limitations applied to such Branch Employees under Seller’s and its affiliates’ corresponding plans prior to the Effective Time, to deny, limit or modify coverage or eligibility for benefits, (B) each such plan that is a health insurance plan shall, for the relevant plan year that includes the Effective Time, credit any deductible and co-payment or out-of-pocket expenses incurred during the corresponding period by or with respect to any Branch Employee under the applicable health insurance plans maintained by Seller or any affiliate as of the Effective Time, and (C) each such plan that is a life or long-term disability insurance plan shall waive any medical certification otherwise required in order to assure the continuation of coverage to Branch Employees who were covered under Seller’s corresponding plans immediately prior to the Effective Time. (iv) Purchaser agrees that each Branch Employee shall be covered under, and be entitled to receive severance payments in accordance with, the severance plan maintained by Seller for its own employees as of the Effective Time with all prior service and compensation earned by such Branch Employees in service to Seller to be recognized for all purposes under such Seller severance plan; provided, however, that if the employment of George Georgenes, Eleni Pantelis or Grammenos Karanos is terminated by Purchaser for any reason other than “for cause” within one (1) year following Closing Date, the Purchaser shall pay such person or persons, as applicable, one (1) year’s base pay less the amount paid by Purchaser in base pay to such individual through the date of the termination of employment.For the purpose of this Agreement, “termination for cause” shall meantermination of the Branch Employee’s employment because of a loss to Purchaser 17caused by the Branch Employee’s personal dishonesty, incompetence, willfulmisconduct, any breach of fiduciary duty involving personal profit, willfulviolation of any law, rule, regulation (other than traffic violations or similaroffenses), final cease and desist order or any intentional failure to performstated duties. In determining incompetence, the acts or omissions shall bemeasured against the standards for professional competence generally prevailingfor employees having comparable positions in the banking industry. Any purportedtermination by Purchaser of a Branch Employee’s employment “for cause” shall becommunicated by a notice of termination to the Branch Employee. For purposes ofSection 3.13(c) of this Agreement, a “notice of termination” shall mean awritten notice which shall indicate the specific “for cause” terminationprovision relied upon and shall set forth in reasonable detail the facts andcircumstances claimed to provide a basis for the termination of the BranchEmployee’s employment under the provision so indicated. (d) During the period of time beginning on the day after thesubmission of all applications required to be filed with all applicableregulatory agencies for approval of the transactions contemplated hereby, Sellershall permit Purchaser to provide training and orientation to the BranchEmployees and shall, subject to the provisions of this Section 3.13(d), excusesuch officers and employees from their duties for Seller at the Branch for thepurpose of such training and orientation by Purchaser under terms and conditionsmutually agreeable to both parties, and at such dates and for such periods oftime indicated on a schedule to be mutually agreed upon by Seller and Purchaser.The parties agree to cooperate with each other so as to schedule training attimes and in manners designed to eliminate any interference with the normalfunctioning of the Branch. Section 3.14 Safe Deposit Boxes. On the Closing Date, and as part of thetransactions contemplated hereby, Seller shall sell and Purchaser shall purchasefrom Seller the Safe Deposit Business. Seller and Purchaser shall give allnotices and take all actions required by applicable laws, rules and regulationsin connection with such transfer and sale of the Safe Deposit Business. Anupdated Schedule 1.1(e) shall be delivered by Seller to Purchaser no more thanfive (5) calendar days prior to the Closing Date, which shall accurately setforth the Safe Deposit Boxes as of the date thereof. Section 3.15 ABA Routing Number. Seller agrees to use its commerciallyreasonable efforts to transfer the Branch’s ABA routing number to Purchaser. Section 3.16 Seller’s Actions Prior to Closing. Between the date hereofand the Effective Time, Seller shall conduct its business at the Branch in theordinary course and in substantially the same manner as such business is nowbeing conducted. Specifically, Seller shall maintain its books, accounts andrecords pertaining to the Branch in the usual manner. Prior to the EffectiveTime, Seller shall not, without the prior written consent of Purchaser, whichconsent shall not be unreasonably withheld: (a) cause the transfer from the Branch of any Deposits, Safe DepositBoxes or Safe Deposit Business, except upon the unsolicited request of adepositor or in the ordinary course of business; 18 (b) effect any changes to the terms of any Deposit or depositaccount, including the interest rate applicable thereto, except for changes inthe ordinary course of business and which are uniformly available at Seller’sother branch offices, or open any new type of deposit account at the Branchother than deposit accounts that are uniformly available at Seller’s otherbranch banking offices; or (c) undertake any new solicitation of jumbo certificates of depositor other deposits at the Branch having a rate of interest that is higher thanthe rate prevailing at Seller’s other branch banking offices, or rollover orrenegotiate terms of any jumbo certificates of deposit or other deposits at theBranch to provide a rate of interest that is higher than the rate prevailing atSeller’s other branch banking offices. Section 3.17 Purchaser’s Actions Prior to Closing. Prior to the EffectiveTime, Purchaser shall not without the prior written consent of the Seller, whichconsent shall not be unreasonably withheld: (a) solicit or engage in targeted advertising directed towardsdepositors of the Branch in any way that is reasonably likely to induce suchBranch depositors to transfer any Deposits from the Branch to Purchaser; or (b) undertake any new solicitation of jumbo certificates of depositor other deposits at the Branch having a rate of interest that is higher thanthe rate prevailing at Seller’s other branch banking offices. Section 3.18 Cooperation and Further Assurances. Seller and Purchasershall cooperate with each other and use their respective commercially reasonableefforts to complete the transactions contemplated herein, and each shall takeall reasonable actions necessary to accomplish such transactions, including butnot limited to the provision of any required notices to depositors with respectto the Deposits and the handling of items in transit and any other transitionmatters not otherwise covered by this Agreement. After the Effective Time on theClosing Date, Seller and Purchaser shall continue to provide reasonableassistance to each other to effectuate an orderly transfer to Purchaser of theDeposits, and in so assisting one another, shall at any reasonable time and fromtime to time upon the request of the other execute and deliver such furtherdocuments, certificates, assignments, receipts, endorsements and instruments oftransfer as Purchaser or Seller (as the case may be) may reasonably require tocomplete the transactions contemplated hereby. Section 3.19 Post-Closing Cooperation. Seller shall promptly undertake toresolve any disputes or claims with customers or vendors arising prior to theEffective Time regarding Deposits, Safe Deposit Boxes, Loans or Contracts, andshall promptly notify Purchaser of resolution or such disputes or claims, andthe status and/or progress of any such disputes or claims. Purchaser shallcooperate with Seller to resolve any such issues, but shall in no way beresponsible for resolution of or payment for resolution of such pre-EffectiveTime disputes or claims. 19 ARTICLE IV COVENANT NOT TO COMPETE Section 4.1 Solicitation of Accounts. For a period of twelve (12) monthsfollowing the Closing Date, Seller shall not directly solicit deposits ordeposit related services from persons who are depositors of the Branch at theEffective Time and who are not otherwise depositors of Seller as of theEffective Time. Notwithstanding the foregoing sentence, Seller shall bepermitted to engage in advertising, solicitations or marketing campaigns of ageneral nature which are not primarily directed to or targeted at customers ofthe Branch or targeted solely at the Boston market. Section 4.2 Enforcement and Remedies. Without limiting the remediesotherwise available at law or in equity, breach of any provision of this ArticleIV shall entitle Purchaser to seek and maintain from a court of competentjurisdiction an injunction against such breach. ARTICLE V REPRESENTATIONS AND WARRANTIES OF SELLER In order to induce Purchaser to enter into this Agreement, Seller herebyrepresents and warrants as follows: Section 5.1 Corporate Organization. Seller is duly organized, validlyexisting and in good standing as a commercial bank organized under the laws ofthe State of New York. Seller has all requisite corporate power and authority,and all necessary authorizations, approvals and orders of and from allgovernmental regulatory officials and bodies, to own and operate its propertiesand to conduct its business as a commercial bank in the manner in which it ispresently being conducted. Section 5.2 Authorization. Seller has, or on the Closing Date will have,all requisite corporate power and authority and all necessary authorizations,approvals and orders of and from all governmental regulatory officials andbodies, to execute and deliver this Agreement and to carry out the transactionscontemplated by this Agreement. The execution and delivery of this Agreement,and each of the documents and instruments contemplated hereby and theconsummation of the transactions contemplated herein have been duly authorizedby all necessary corporate action to be taken on the part of Seller; and, uponexecution and delivery, this Agreement and, subject to the receipt of anyrequired regulatory approvals, each of such other documents and instruments,will constitute valid and binding obligations of Seller, enforceable againstSeller in accordance with their terms, except as rights to indemnity andcontribution thereunder may be limited under applicable law, and subject to thequalifications that (i) enforcement thereof may be limited by bankruptcy,insolvency, receivership, reorganization, liquidation, voidable preference,moratorium or other laws (including the laws of fraudulent conveyance andtransfer) or judicial decisions affecting the enforcement of creditors’ rights 20against debtors generally and (ii) the enforceability of Seller’s obligationsthereunder is subject to general principles of equity (regardless of whethersuch enforceability is considered in a proceeding in equity or at law) and tothe effect of certain laws and judicial decisions upon the availability andenforceability of certain remedies, including the remedies of specificperformance and self-help. Section 5.3 Approvals to Operate Branch. All certificates, permits,licenses, approvals and other authorizations necessary or appropriate to permitSeller’s occupancy of the Branch for use as a branch banking office(collectively, “Approvals”) have been duly issued and are in full force andeffect. Seller has received no communication from any governmental authoritywith respect to the proposed or actual revocation or termination of any of theApprovals, and Seller has no knowledge of any facts which would form the basisfor any such revocation or termination. Section 5.4 Litigation. There are no pending or, to Seller’s knowledge,threatened actions, suits or proceedings, before any court, governmental agency,arbitrator or instrumentality relating to the business of the Branch or thatpurport to affect the legality, validity or enforceability of this Agreement orthat could materially adversely affect the Deposits or the ability of Seller toperform its obligations under this Agreement, which in any manner questions thevalidity of this Agreement or which could serve as a basis for disapproval ofthe transactions contemplated hereby by any regulatory authority. Section 5.5 Non-Contravention. Subject to obtaining all applicableregulatory approvals, consents and waivers, the execution, delivery andperformance of this Agreement by Seller and the consummation of the transactionscontemplated under this Agreement will not constitute (i) a breach or violationof, or a default under, any law, rule or regulation or any judgment, decree,order, governmental permit or license, or agreement, indenture or instrument ofSeller or to which Seller (or any of its respective properties) is subject, orenable any person to enjoin the transactions contemplated hereby, (ii) a breachor violation of, or a default under, the charter or bylaws of Seller, or (iii) abreach or violation of, or a default under (or an event which with due notice orlapse of time or both would constitute a default under), or result in thetermination of, accelerate the performance required by, or result in thecreation of any lien, pledge, security interest, charge or other encumbranceupon any of the properties or assets of Seller under, any of the terms,conditions or provisions of any note, bond, indenture, deed of trust, loanagreement or other agreement, instrument or obligation to which Seller is aparty, or to which any of its respective properties or assets may be bound oraffected, other than any such violation which would not have a material adverseeffect on the condition, financial or otherwise, or in the results of operationsor business affairs of Seller or of the Branch, considered as a whole, to beconveyed hereunder (a “Material Adverse Effect”), whether or not arising in theordinary course of business. Section 5.6 Consents and Approvals. No consent, waiver, approval or otherauthorization of, or registration, declaration or filing with, any court,governmental agency or commission is required for the valid execution and 21delivery by Seller of this Agreement, or for the validity or enforceability ofthis Agreement against Seller or for the payment of any amounts by Sellerhereunder, other than those that have been or will be applied for on or afterthe date hereof and prior to the Closing Date. Section 5.7 Agents or Brokers. Seller has not retained or otherwiseengaged any agent, broker, finder or any other person for any fee or commission,or otherwise agree to pay such person, for or on account of this Agreement orthe transactions contemplated hereby, the fee of which, if any, will be paid bySeller. Section 5.8 Deposits. The deposit accounts of Seller are insured under theBank Insurance Fund of the FDIC up to applicable limits and no action is pendingor, to the knowledge of Seller, threatened, with respect to the termination ofsuch insurance. Section 5.9 Books and Records. The books and records of Seller pertainingto the Branch fairly reflect the information regarding the Deposits necessaryfor Purchaser to assume the Deposits upon the Closing of the transaction. Suchbooks and records have been properly kept and maintained and are in compliancein all material respects with all applicable legal requirements. Section 5.10 Disclaimer. All transfers to Purchaser of Deposits aresubject to the individual depositors’ continuing rights to withdraw, and Sellermakes no representation or warranty to Purchaser concerning the continuingmaintenance of such Deposits. ARTICLE VI REPRESENTATIONS AND WARRANTIES OF PURCHASER In order to induce Seller to enter into this Agreement, Purchaser herebyrepresents and warrants as follows: Section 6.1 Corporate Organization. Purchaser is duly organized, validlyexisting and in good standing as a national bank organized under the laws of theUnited States of America. It has all requisite corporate power and authority andall necessary authorizations, approvals and orders of and from all governmentalregulatory officials and bodies to own and operate its properties and to conductits business as a national bank in the manner in which it is presently beingconducted. Section 6.2 Authorization. Purchaser has all requisite corporate power andauthority, and all necessary authorizations, approvals and orders of and fromall governmental regulatory officials and bodies to execute and deliver thisAgreement and to carry out all of the transactions contemplated by thisAgreement other than those regulatory approvals required in connection with suchtransactions that have been or will be applied for. The execution and deliveryof this Agreement and each of the documents and instruments contemplated herebyand the consummation of the transactions contemplated herein have been dulyauthorized by all necessary corporate action to be taken on the part of 22Purchaser; and, upon execution and delivery, this Agreement and, subject toreceipt of any required regulatory approvals, each of such other documents andinstruments will constitute valid and binding obligations of Purchaser,enforceable against Purchaser in accordance with their terms, except as rightsto indemnity and contribution thereunder may be limited under applicable law,and subject to the qualifications that (i) enforcement thereof may be limited bybankruptcy, insolvency, receivership, reorganization, liquidation, voidablepreference, moratorium or other laws (including the laws of fraudulentconveyance and transfer) or judicial decisions affecting the enforcement ofcreditors’ rights against debtors generally and (ii) the enforceability ofPurchaser’s obligations thereunder is subject to general principles of equity(regardless of whether such enforceability is considered in a proceeding inequity or at law) and to the effect of certain laws and judicial decisions uponthe availability and enforceability of certain remedies, including the remediesof specific performance and self-help. Section 6.3 Litigation. There are no pending or, to Purchaser’s knowledge,threatened actions, suits or proceedings before any court, governmental agency,arbitrator or instrumentality that purport to affect the legality, validity orenforceability of this Agreement, or that could materially adversely affect theability of Purchaser to perform its obligations under this Agreement, that inany manner questions the validity of this Agreement or that could serve as abasis for disapproval of the transactions contemplated hereby by any regulatoryauthority. Section 6.4 Non-Contravention. Subject to obtaining all applicableregulatory approvals, consents and waivers, the execution, delivery andperformance of this Agreement by Purchaser and the consummation of thetransactions contemplated under this Agreement will not, constitute (i) a breachor violation of, or a default under, any law, rule or regulation or anyjudgment, decree, order, governmental permit or license, or agreement, indentureor instrument of Purchaser or to which Purchaser (or any of its respectiveproperties) is subject, or enable any person to enjoin the transactionscontemplated hereby, (ii) a breach or violation of, or a default under, thecharter or bylaws of Purchaser or (iii) a breach or violation of, or a defaultunder (or an event which with due notice or lapse of time or both wouldconstitute a default under), or result in the termination of, accelerate theperformance required by, or result in the creation of any lien, pledge, securityinterest, charge or other encumbrance upon any of the properties or assets ofPurchaser under, any of the terms, conditions or provisions of any note, bond,indenture, deed of trust, loan agreement or other agreement, instrument orobligation to which Purchaser is a party, or to which any of its respectiveproperties or assets may be bound or affected, other than any such violationwhich would not have a material adverse effect on the condition, financial orotherwise, or in the earnings or business affairs of Purchaser, whether or notarising in the ordinary course of business. Section 6.5 Consents and Approvals. No consent, waiver, approval or otherauthorization of, or registration, declaration or filing with, any court,governmental agency or commission is required for the valid execution anddelivery by Purchaser of this Agreement, or for the validity or enforceabilityof this Agreement against Purchaser or for the payment of any amounts by 23Purchaser hereunder, other than those which have been or will be applied for onor after the date hereof and prior to the Closing Date, as set forth in Section3.7. As of the date hereof, Purchaser knows of no reason why the consents,waivers or approvals of government authorities referred to in Section 3.7 thatare required to be obtained should not be obtained without the imposition of anymaterial, non-standard conditions or restrictions. Section 6.6 Agents or Brokers. Purchaser has not retained or otherwiseengaged any agent, broker, finder or any other person for any fee or commission,or otherwise agreed to pay such person, for or on account of this Agreement orthe transactions contemplated hereby. Section 6.7 Deposits. The deposit accounts of Purchaser are insured underthe Bank Insurance Fund of the FDIC up to applicable limits and no action ispending or, to the knowledge of Purchaser, threatened, with respect to thetermination of such insurance. Section 6.8 Absence of Inducements. In entering into this Agreement,Purchaser has not been induced by and has not relied upon any representations,warranties or statements, whether express or implied, made by Seller or anyagent, employee or other representative of Seller or by any broker or any otherperson representing or purporting to represent Seller, which are not expresslyset forth in this Agreement or any schedules attached hereto, whether or not anysuch representations, warranties or statements were made in writing or orally. ARTICLE VII CONDITIONS TO CLOSING Section 7.1 Conditions to Obligations of All Parties. The obligations ofboth Purchaser and Seller hereunder are subject to the satisfaction or waiver onor before the Closing Date of the following conditions: (a) Receipt of Regulatory Approvals. Receipt of all approvals of allapplicable regulatory and governmental authorities required by applicable law orregulations to be obtained relating to the assumption by Purchaser of theDeposits or the closing of the Branch by Seller, as contemplated hereby, theexpiration of all applicable notice and waiting periods relating thereto, andthe satisfaction of all conditions contained in such approvals that are requiredto be satisfied prior to consummation of the transaction. (b) Absence of Material Litigation. There shall be no pending orthreatened claim, action, litigation or proceeding, judicial or administrative,or governmental action against Seller or Purchaser for the purpose of enjoiningor preventing the consummation of the transactions contemplated by thisAgreement or otherwise claiming that the Agreement or the consummation of thetransactions contemplated hereby is illegal. 24 (c) Loan Purchase. Consummation of the acquisition of the Loans byPurchaser from Seller in accordance with the terms of the Loan PurchaseAgreement and the acquisition of the REIT Loans by Purchaser from REIT inaccordance with the terms of the REIT Loan Purchase Agreement. Section 7.2 Additional Conditions to Obligations of Purchaser. Theobligations of Purchaser hereunder are subject to the satisfaction on or beforethe Closing Date of the following conditions, unless waived, in writing, byPurchaser: (a) Performance of Obligations. Seller shall have complied in allmaterial respects with all of its obligations under this Agreement required tobe performed or complied with prior to or on the Closing Date. (b) Representations and Warranties. The representations andwarranties of Seller hereunder shall continue to be true and correct on and asof the Closing Date as if they had been made on the Closing Date. (c) Sufficiency of Instruments of Transfer. The form and substanceof all instruments of transfer and other documents to be delivered to Purchaserhereunder shall have been approved by Purchaser and its counsel, and suchapproval shall not be unreasonably withheld. (d) Items to be Delivered by Seller. At or before the Closing, asapplicable, Seller shall have delivered to Purchaser the following documents,duly executed and, where appropriate, acknowledged: (i) Resolution of Board of Directors. A resolution of Seller’s board of directors authorizing the execution and delivery of this Agreement, and the other documents and instruments contemplated hereby, and the consummation of the transactions contemplated hereby, and a certificate executed by the Secretary or Assistant Secretary of Seller certifying to the adoption of such resolution. (ii) Officer’s Certificate. An officer’s certificate, dated the Closing Date, certifying to the fulfillment and satisfaction of the conditions set forth as items (a) and (b) of this Section 7.2. (iii) Assignment and Assumption Agreement. An Assignment and Assumption Agreement in the form attached hereto as Exhibit A. (iv) Legal Opinion. An opinion of counsel for Seller in a form reasonably acceptable to Purchaser. (v) Other Documentation. Such other instruments and documents as counsel for Purchaser may reasonably require as necessary or desirable for transferring, assigning and conveying of the Deposits to be assumed by Purchaser. 25 Section 7.3 Additional Conditions to Obligations of Seller. Theobligations of Seller hereunder are subject to the satisfaction on or before theClosing Date of the following conditions, unless waived, in writing, by Seller: (a) Performance of Obligations. Purchaser shall have complied in allmaterial respects with all of its obligations under this Agreement required tobe performed or complied with prior to or on the Closing Date. (b) Representations and Warranties. The representations andwarranties of Purchaser hereunder shall continue to be true and correct in allmaterial respects on and as of the Closing Date as if they had been made on theClosing Date. (c) Sufficiency of Instruments of Transfer. The form and substanceof all instruments of transfer and other documents to be delivered to Sellerhereunder shall have been approved by Seller and its counsel, and such approvalshall not be unreasonably withheld. (d) Property. Purchaser and Seller shall have consummated thepurchase from Seller of the building located at 33 State Street, Boston,Massachusetts 02109 (the “Premises”) in accordance with the terms of a certainPurchase and Sale Agreement by and between Seller and Purchaser dated the datehereof. (e) Items to be Delivered by Purchaser. At or before the Closing, asapplicable, Purchaser shall have delivered to Seller the following documents,duly executed and where appropriate, acknowledged: (i) Resolution of Board of Directors. A resolution of Purchaser’s board of directors authorizing the execution and delivery of this Agreement, and the documents and instruments contemplated hereby, and the consummation of the transactions contemplated hereby, and a certificate executed by the Secretary or Assistant Secretary of Purchaser certifying to the adoption of such resolution. (ii) Officer’s Certificate. An officer’s certificate dated the Closing Date, certifying to the fulfillment and satisfaction of the conditions set forth as items (a) and (b) of this Section 7.3. (iii) Assignment and Assumption Agreement. An Assignment and Assumption Agreement in the form attached hereto as Exhibit A. (iv) Legal Opinion. An opinion of counsel for Purchaser in a form reasonably acceptable to Seller. 26 (v) Other Documents. Such other documents and instruments as counsel for Seller may reasonably require as necessary or desirable for transferring, assigning and conveying to Purchaser the Deposits to be assumed by Purchaser pursuant to this Agreement. ARTICLE VIII INDEMNIFICATION Section 8.1 Seller’s Indemnification. Notwithstanding any other provisionof this Agreement to the contrary, Seller agrees to indemnify and hold Purchaserharmless from and against any loss, fee, cost, expense, damage, liability orobligation that Purchaser may receive, suffer, or incur, including reasonableattorney’s fees (“Losses”), in connection with any claim made or actioninstituted against Purchaser arising or claimed to have arisen from (a) Seller’sactions or inactions either (i) prior to the Effective Time, or (ii) after theEffective Time, except for obligations with respect to the Deposits to beassumed pursuant to the terms of the Agreement or (b) the material breach bySeller of any representation, warranty or covenant made by Seller contained inthis Agreement; provided, that Purchaser notify Seller of any such written claimor action within thirty (30) days after Purchaser has actual notice that thesame has been made or instituted, as the case may be but failure to so notifySeller shall not relieve Seller from any liability hereunder to the extent it isnot materially prejudiced as a result thereof; and provided further, that Sellermay assume the defense of any such written claim or action by attorneys of itsown choosing, and reasonably acceptable to Purchaser, at its expense. Sellershall not have any liability, or be subject to any claim, under this Section 8.1unless and until all Losses on account of matters covered in this Section 8.1exceed $25,000, whereupon Purchaser shall be entitled to receive indemnitypayments under this Section 8.1. Section 8.2 Purchaser’s Indemnification. Notwithstanding any otherprovision of this Agreement to the contrary, Purchaser agrees to indemnify andhold Seller harmless from and against any of its Losses in connection with anyclaim made or action instituted against Seller relating to or arising out of orclaimed to have arisen from (a) Purchaser’s actions or inactions after theEffective Time relative to any of the obligations with respect to the Depositsto be assumed pursuant to the terms of this Agreement or (b) the material breachby Purchaser of any representation, warranty or covenant made by Purchasercontained in this Agreement; provided, that Seller notify Purchaser of any suchwritten claim or action within thirty (30) days after Seller has actual noticethat the same has been made or instituted, as the case may be and that failureto notify Purchaser shall not relieve Purchaser from any liability hereunder tothe extent it is not materially prejudiced as a result thereof; and providedfurther, that Purchaser may assume the defense of any such written claim oraction by attorneys of its own choosing, and reasonably acceptable to Seller, atits expense. Purchaser shall not have any liability, or be subject to any claim,under this Section 8.2 unless and until all Losses on account of matters coveredin this Section 8.2 exceed $25,000, whereupon Seller shall be entitled toreceive indemnity payments under this Section 8.2. 27 ARTICLE IX TERMINATION Section 9.1 Events of Termination. This Agreement shall terminate and beof no further force or effect upon the occurrence of any of the following: (a) Mutual agreement, executed in writing, of the parties hereto. (b) The failure of the transactions contemplated herein to beconsummated on or prior to June 30, 2005. (c) The expiration of thirty (30) days from the date that eitherparty has properly given written notice to the other party of the notifyingparty’s intention to terminate this Agreement as a consequence of such otherparty’s material breach or misrepresentation of any condition, warranty,representation or covenant herein; provided, that no such termination shall takeeffect if within said thirty (30) day period the party so notified shall havereasonably corrected the grounds for termination as specified in theaforementioned notice. (d) Upon written notice of either Seller or Purchaser to the otherwithin thirty (30) days after the date on which any application for regulatoryapproval prerequisite to the consummation of the transactions contemplatedhereby shall have been denied or withdrawn at the request or recommendation ofthe applicable regulatory agency, unless within such thirty (30) day period apetition for rehearing or an amended application has been filed with suchapplicable regulatory agency, in either of which events the rights to terminatethis Agreement shall be reinstated following the completion or abandonment ofall administrative proceedings to which any of the parties hereto is entitled. Section 9.2 Exception. Notwithstanding anything to the contrary hereincontained, neither party hereto shall have the right to terminate this Agreementbecause of its own breach or an immaterial breach by the other party hereto. Section 9.3 Effect of Termination. (a) In the event of termination of this Agreement, this Agreementshall forthwith become void and there shall be no liability on the part of anyof the parties hereto, except for Section 10.1, which shall remain in full forceand effect, and except that nothing herein shall relieve any party fromliability for a breach of this Agreement prior to the termination hereof. In theevent of a willful breach of the Agreement, the parties agree that the breachingparty will pay liquidated damages in the amount of $250,000 to the non-breachingparty. (b) Purchaser and Seller each agree that if (i) this Agreementterminates in accordance with Section 9.1(b) solely due to the failure ofPurchaser or Seller to obtain regulatory approvals, or satisfy any conditions 28contained in such approvals by the date referred to in Section 9.1(b) or (ii)either Purchaser or Seller terminates this Agreement in accordance with Section9.1(d) because any application of Purchaser or Seller for regulatory approval isdenied or withdrawn, the party that did not obtain regulatory approval shallreimburse the other party for an amount which represents attorneys’ fees andother reasonable expenses which reflect the actual direct costs incurred tothird parties in connection with the negotiation and preparation of thisAgreement, and the administration of its obligations hereunder, documented tothe party that failed to obtain regulatory approval, without profit which amountshall not exceed $25,000; provided that, each of Purchaser and Seller agrees touse its best efforts to obtain all required regulatory approvals asexpeditiously as possible. If either Purchaser or Seller does not use its bestefforts to obtain all required regulatory approvals, such party shall be liablefor damages as set forth in Section 9.3(a). ARTICLE X MISCELLANEOUS Section 10.1 Expenses. Except as herein otherwise expressly provided inSection 9.3, each party hereto shall pay its own expenses incurred in fulfillingits obligations hereunder. Section 10.2 Notices. Any notice or other communication required orpermitted hereunder shall be deemed given if delivered in person, by courier orif sent by registered or certified mail, postage prepaid, return receiptrequested or by express mail, overnight delivery or facsimile transmission(followed by hard copy) addressed as follows: (a) If to Purchaser: The First National Bank of Ipswich 31 Market Street Ipswich, MA 01938 Attention: Donald P. Gill President and Chief Executive Officer Telephone Number: (978) 356-3000 Facsimile Number:(978) 356-5937 With copies to: Craig and Macauley Professional Corporation 600 Atlantic Avenue Boston, MA 02110 Attention: David F. Hannon, Esq. Telephone Number: (617) 367-9500 Facsimile Number: (617) 742-1788 29 (b) If to Seller: Atlantic Bank of New York 960 Avenue of the Americas New York, NY 10001 Attention: Thomas M. O’Brien President and Chief Executive Officer Telephone Number: (212)714-7301 Facsimile Number: (212) 714-7418 With copies to: Atlantic Bank of New York 960 Avenue of the Americas New York, New York 10001 Attention: James S. Maxwell, Esq. General Counsel Telephone Number: (212)714-7312 Facsimile Number: (212) 967-2557 Thacher Proffitt & Wood LLP 1700 Pennsylvania Avenue, NW Washington, DC 20006 Attention: Matthew Dyckman, Esq. Telephone Number: (202) 626-5647 Facsimile Number: (202) 626-1930Any such notice or communication if mailed shall be deemed to have been given asof five (5) Business Days after the date mailed or, if delivered in person,shall be deemed given on the date so delivered. Either party may specify adifferent address by giving notice to that effect to the other party. Section 10.3 Survival. The representations, warranties and covenants setforth in this Agreement shall only survive for one (1) year after the completionof the transactions contemplated hereby, except for the provisions of Section3.4, 3.5 and those other covenants that by their terms expressly so survive. Section 10.4 Confidentiality. Both parties agree that as a condition toentering into this Agreement, it will be necessary to exchange certainconfidential information regarding each other. As a condition to suchinformation exchange, each party furnishing information (the “Furnishing Party”)is requiring that the party receiving the information (the “Recipient”) agree,as set forth below, to treat confidentially such information and any otherinformation that the Furnishing Party, its agents or its representatives(including, but not limited to, attorneys, financial advisors and serviceproviders and other vendors) furnishes to the Recipient or its directors, 30officers, employees, agents, advisors, banking regulators, prospective bank orinstitutional lenders, affiliates or representatives of Recipient’s agents,advisors, service providers and other vendors or prospective lenders (all of theforegoing collectively referred to as Recipient’s “Representatives”), whetherfurnished before or after the date of this letter, and all notes, analyses,compilations, studies or other documents, whether prepared by Recipient orothers, which contain or otherwise reflect such information (collectively, the”Confidential Information”). The term “Confidential Information” does not include information that (1)becomes generally available to the public other than as a result of disclosureby Recipient or Recipient’s Representatives, (2) was available to Recipient on anon-confidential basis or in the public domain through no fault of the Recipientprior to its disclosure to Recipient by the Furnishing Party, itsrepresentatives or its agents, or (3) becomes available to Recipient on anon-confidential basis from a source other than the Furnishing Party, itsrepresentatives or its agents, provided that such source is not bound by aconfidentiality agreement with the Furnishing Party, its representatives or itsagents or otherwise prohibited from transmitting the information to Recipient orRecipient’s Representatives by a contractual, legal or fiduciary obligation. It is understood that Recipient may disclose any of the ConfidentialInformation to those of Recipient’s Representatives who require such materialfor the purpose of completing the transaction contemplated by this Agreement(provided that such Representatives shall be informed by Recipient of theconfidential nature of the Confidential Information). Recipient agrees that theConfidential Information will be kept confidential by Recipient and Recipient’sRepresentatives and, except with the specific prior written consent of theFurnishing Party or as expressly otherwise permitted by the terms hereof, willnot be disclosed by Recipient or Recipient’s Representatives. Recipient furtheragrees that Recipient and Recipient’s Representatives will not use any of theConfidential Information for any reason or purpose other than to complete thetransaction contemplated by this Agreement. In the event that Recipient or any of Recipient’s Representatives arerequested or required (by oral questions, interrogatory, request for informationor documents, subpoena, Civil Investigative Demand or similar process) todisclose any of the Confidential Information, it is agreed that Recipient orsuch Representative, as the case may be, will, if lawfully permitted, providethe Furnishing Party with prompt notice of such request(s) so that it may seek(with Recipient’s reasonable cooperation if requested by the Furnishing Party)an appropriate protective order or other appropriate remedy and/or waiveRecipient’s or such Representative’s compliance with the provisions of thisletter agreement. In the event that such protective order of other remedy is notobtained, or that the Furnishing Party grants a waiver hereunder, Recipient orsuch Representative may furnish that portion (any only that portion) of theConfidential Information that, in the written opinion of Recipient’s counsel,Recipient is legally compelled to disclose and will exercise Recipient’s bestefforts to obtain reliable assurance that confidential treatment will beaccorded any Confidential Information so furnished. 31 Although Recipient understands that the Furnishing Party will endeavor toinclude in the Confidential Information known to it which it believes to berelevant for the purpose of Recipient’s investigation, Recipient furtherunderstands that neither Furnishing Party nor its agents or its representativesmakes any representation or warranty as to the accuracy or completeness of theConfidential Information. Recipient agrees that neither the Furnishing Party norits agents or its Representatives will have any liability to Recipient or any ofRecipient’s Representatives resulting from the use of the ConfidentialInformation by Recipient or such Representatives. Only those representations andwarranties that may be made to Recipient or Recipient’s affiliates in thePurchase and Assumption Agreement, subject to such limitations and restrictionsas are specified therein, shall have any legal effect. Recipient hereby agrees to indemnify and hold harmless the FurnishingParty from any damage, loss, cost or liability (including legal fees and thecost of enforcing this indemnity) arising out of or resulting from anyunauthorized use or disclosure by Recipient or Recipient’s Representatives ofthe Confidential Information. Recipient also acknowledges that money damageswould be both incalculable and an insufficient remedy for any breach of thisletter agreement by Recipient or Recipient’s Representatives and that any suchbreach would cause the Furnishing Party irreparable harm. Accordingly, Recipientalso agrees that in the event of any breach or threatened breach of this letteragreement, the Furnishing Party, in addition to any other remedies at law or inequity it may have, shall be entitled, without the requirement of posting a bondor other security, to equitable relief, including injunctive relief and specificperformance. Without the prior written consent of the Furnishing Party, the Recipientand its Representatives will not disclose to any person (a) the fact that theConfidential Information has been made available to such party or that suchparty has inspected any portion of the Confidential Information, or (b) any ofthe terms, conditions or other facts with respect to the transactioncontemplated by this Agreement, including the status thereof, unless and only tothe extent that such disclosure (after making reasonable efforts to avoid suchdisclosure and, if permitted by law, and after advising and consulting with theFurnishing Party about the intention of Recipient or Recipient’s Representativesto make, and the proposed contents, of such disclosure) is, in the opinion ofRecipient’s counsel, required by applicable laws, the applicable rules of anystock exchange on which the Recipient’s securities are listed, or in order tomake any required regulatory filings with any applicable bank regulatory agency.The term “person” as used in this Section 10.4 shall be broadly interpreted toinclude without limitation any corporation, company, partnership or individual. Without the prior written consent of the other, neither party nor itsRepresentatives who are aware of the Confidential Information or thetransactions contemplated by this agreement will initiate or cause to beinitiated (other than through its respective agents or designated officers) anycommunication with any employee of the other concerning the ConfidentialInformation or the transaction contemplated by this Agreement. 32 Each of Purchaser and Seller acknowledge that it is subject to the FederalReserve Board’s Interagency Guidelines Establishing Standards for SafeguardingCustomer Information, at 12 C.F.R. Part 208, Appendix D-2, as amended orsupplemented from time to time (the “Guidelines”). If the Furnishing Partyprovides the Recipient with “customer information”, as defined in theGuidelines, the Recipient will (a) ensure the security and confidentiality ofthe customer information, (b) protect against any anticipated threats or hazardsto the security or integrity of the customer information, and (c) protectagainst any unauthorized access to or use of the customer information that couldresult in substantial harm or inconvenience to the Furnishing Party’s customers.Upon written request of the Furnishing Party, the Recipient, unless otherwiserequired by law or regulation, shall either, at the Furnishing Party’s option,return to the Furnishing Party or destroy all tangible Confidential Information,including copies, reproductions or information, (including that maintained inany computer memory, storage media or similar form) otherwise containingConfidential Information. The Recipient shall, unless otherwise required by lawor regulation, also destroy any documents or other materials developed by theRecipient containing Confidential Information. The Recipient shall certify tothe Furnishing Party in writing that it has returned or destroyed, asapplicable, Confidential Information. Notwithstanding such return ordestruction, each Party will continue to be bound by its obligation under thisletter agreement. Section 10.5 Entire Agreement. This Agreement constitutes the entireagreement between the parties hereto pertaining to the subject matter hereof andsupersedes all prior and contemporaneous agreements, understandings,negotiations and discussions of the parties in connection therewith not referredto herein. Section 10.6 Modification. No supplement, modification or amendment ofthis Agreement shall be valid unless executed in writing by both parties hereto. Section 10.7 Waivers. Either party may waive any one or more conditions tothe performance of its obligations (other than required regulatory approvals) orbreaches of, or defaults under, this Agreement by the other party and proceed tothe Closing of the transactions contemplated hereby without prejudice to anyother rights or remedies to which such party may otherwise be entitled. Nowaiver of any provision of, breach of or default under this Agreement shall beconsidered binding unless executed in writing by the party granting such waiver.No waiver of any provision of this Agreement shall be deemed to constitute awaiver of any other provision hereof or any subsequent breach or default(whether or not similar) nor shall any such waiver constitute a continuingwaiver. Section 10.8 Enforceability. The invalidity or unenforceability of anyprovision of this Agreement shall not affect the validity or enforceability ofany other provisions of this Agreement, which shall remain in full force andeffect. Section 10.9 Schedules, Exhibits and Headings. All Schedules and Exhibitsreferred to herein shall constitute a part of this Agreement. Section, paragraphand subparagraph headings are not to be considered part of this Agreement, arefor convenience and reference only, and are not to be deemed to be full oraccurate descriptions of the contents of any paragraph or subparagraph. 33 Section 10.10 Successors and Assigns. All of the terms and provisions ofthis Agreement shall be binding upon and inure to the benefit of the partieshereto and their respective transferees, successors and assigns, but thisAgreement may not be assigned by either party without the written consent of theother. This Agreement is personal to the parties hereto and their successors andpermitted assigns and is not intended for the benefit of and shall not be reliedupon by any other person and no such person (or any other person acting on suchperson’s behalf) shall be entitled to the benefit of or to enforce thisAgreement; provided, that this Agreement may be relied upon by any governmentalor regulatory agency whose approval or consent is a condition to theconsummation by either party of the transactions contemplated by this Agreement.The parties agree that if, prior to the Closing, either Seller or Purchaser isparty to a merger or acquisition, the transactions contemplated by thisAgreement shall be consummated with the surviving entity of such merger oracquisition. Section 10.11 Counterparts. This Agreement may be executed in one or morecounterparts, all of which taken together shall constitute one instrument. Section 10.12 Governing Law. This Agreement shall be construed andenforced in accordance with the laws of the Commonwealth of Massachusetts, tothe extent that federal law does not control. Section 10.13 Public Announcements. Neither Purchaser nor Seller shallcause to be made any advertisement, solicitation or public announcementregarding this Agreement or the transactions contemplated hereby between thedate hereof and the Effective Time without the prior approval of the otherparty, except as may otherwise be required by law in which case the other partyshall be provided a reasonable opportunity to review and comment upon suchadvertisement, solicitation or public announcement prior to its dissemination.Purchaser shall, between the date hereof and the Effective Time, at Purchaser’sexpense and with the consent of Seller, be permitted to communicate with thecustomers of the Branch concerning the transactions provided for herein. Anyconsent or approval required by this Section 10.13 shall not be unreasonablywithheld. [Remainder of page intentionally left blank] 34 IN WITNESS WHEREOF, the parties hereto have caused this Purchase andAssumption Agreement to be duly executed as of the day and year first abovewritten. ATLANTIC BANK OF NEW YORKAttest: By: /s/ Thomas M. O’Brien —————————— Thomas M. O’Brien/s/ James S. Maxwell President and Chief Executive- ————————- Officer THE FIRST NATIONAL BANK OF IPSWICHAttest: By: /s/ Donald P. Gill —————————— Donald P. Gill, President/s/ Tammy A. Hartmann and Chief Executive Officer- ———————— 35 SCHEDULESSchedule 1.1(a) Assumed ContractsSchedule 1.1(b) Assumed DepositsSchedule 1.1(c) Personal PropertySchedule 1.1(d) Safe Deposit BoxesSchedule 1.1(e) Unreconciled Passbook Accounts EXHIBIT A Form of Assignment and Assumption Agreement EXHIBIT B Form of Loan Purchase Agreement EXHIBIT C Form of REIT Loan Purchase Agreement EXHIBIT D Notice to IRA Holders