EX-10.1






TRUST COMPANY AGREEMENT AND PLAN OF MERGER

by and between

The Canandaigua National Bank and Trust Company

and

Five Star Bank

Dated as of March 25, 2006






1






TRUST COMPANY AGREEMENT AND PLAN OF MERGER




THIS TRUST COMPANY AGREEMENT AND PLAN OF MERGER, dated as of March 25, 2006 (this
“Agreement”), is made by and between Five Star Bank, a New York State chartered banking
association (“Seller”), and The Canandaigua National Bank and Trust Company, a national banking
association (“Purchaser”).




Recitals



WHEREAS, Seller is a wholly owned subsidiary of Financial Institutions, Inc. (“FI”), a
bank holding company organized under the laws of the State of New York;



WHEREAS, as soon as practicable following the date hereof, Seller will make application to the
Department of Banking of the State of New York (the “Banking Department”) to organize Five
Star New York Trust Company, a trust company (“Trust Company”) to be chartered under the
laws of the State of New York as a wholly-owned subsidiary of Seller and, following the
organization of Trust Company, Seller will petition the Supreme Court of the State of New York, New
York County, to have Trust Company substituted in every fiduciary capacity in place of Seller as
the trustee and fiduciary with respect to all of the Trust Accounts (as defined herein) pursuant to
Section 154 of the New York Banking Law;



WHEREAS, the parties intend that, as soon as practicable following entry of the court order
pursuant to Section 154, Trust Company will, subject to the terms and conditions set forth herein,
merge (the “Merger”) with and into Purchaser (Trust Company and Purchaser are sometimes
collectively referred to herein as the “Constituent Corporations”);



WHEREAS, the Boards of Directors of Purchaser and Seller have determined that it is in the
best interests of their respective companies and their shareholders to consummate the transactions
provided for herein; and



WHEREAS, the parties desire to make certain representations, warranties and agreements in
connection with the Merger and also to prescribe certain conditions to the Merger.




Agreements



NOW, THEREFORE, in consideration of the mutual covenants, representations, warranties and
agreements contained herein, and intending to be legally bound hereby, the parties agree as
follows:



ARTICLE I

CERTAIN DEFINITIONS




For purposes of this Agreement, except as otherwise expressly provided herein or unless the
context otherwise requires, the terms defined in this Article I shall have the meanings assigned to
them in this Article I and shall include the plural as well as the singular.



Affiliate – With respect to any Person, any Person directly or indirectly controlling,
controlled by, or under common control with such other Person, and any Subsidiary of such Person.
For purposes of this definition, “control” (including with correlative meaning, the terms
“controlled by” and “under common control with”) as used with respect to any
Person, means the possession, directly or indirectly, of the power to direct or cause the direction
of the management and policies of such Person, whether through ownership of voting securities, by
contract or otherwise.



Agreement – As defined in the Introduction hereof, including all written disclosures pursuant
hereto, amendments hereof and supplements thereof.



Bank Act – As defined in Section 2.1.



Banking Department – As defined in the Recitals.



Burdensome Condition – As defined in Section 8.2(c).



Business Day – Any day except a Saturday, Sunday or any day which is a legal holiday or a day
on which banking institutions in the State of New York are authorized or required by law or other
government action to close. All time periods in this Agreement based on a number of days shall be
deemed to refer to calendar days unless the term Business Day is specifically used.



Closing – As defined in Section 10.1(a).



Closing Adjustment Documents – As defined in Section 2.7(a).



Closing Date – As defined in Section 10.1.



Closing Date – As defined in Section 2.6(a).



Constituent Corporations – As defined in the Recitals.



Disagreement – As defined in Section 2.7(b).



Effective Time – As defined in Section 2.2.



Encumbrance – Any lien, pledge, security interest, claim, charge, easement, limitation,
commitment, restriction or encumbrance of any kind or nature whatsoever.



Equity Value – The amount of Seller’s initial cash, or cash equivalent, equity investment in
Trust Company, as invested by Seller as part of the formation of Trust Company.



Estimated Merger Consideration – Means (i) 2.01% of the aggregate Fair Market Value of the
Trust Assets transferred in this transaction as of the close of business three (3) Business Days
prior to the Closing Date, plus (ii) the Equity Value.



Fair Market Value – (a) As to any Securities which are listed or admitted to trading on any
national securities exchange, on any Business Day, the amount equal to (i) the last sale price of
such Securities, regular way, on such date or, if no such sale takes place on such date, the
average of the closing bid and asked prices thereof on such date, in each case as officially
reported on the principal national securities exchange on which such Securities are then listed or
admitted to trading, or (ii) as to Securities which are not then listed or admitted to trading on
any national securities exchange but are reported through the automated quotation system of a
registered securities association, the last trading price of such Securities on such date, or if
there shall have been no trading on such date, the average of the closing bid and asked prices of
such Securities on such date as shown by such automated quotation system, and (b) as to any other
property on any date, the price which could be negotiated in an arm’s-length, free market
transaction, for cash, between a willing seller and a willing and able buyer, neither of whom is
under undue pressure or compulsion to complete the transaction.



Federal Funds Rate – For any period, the rate per annum (expressed on a basis of calculation
of actual days in a year) equal to the average during such period of the average of the daily high
and low rates on overnight federal funds transactions on each day (or for any day that is not a
Business Day, for the immediately preceding Business Day) during such period, as published by the
Federal Reserve Bank of New York.



Fees – With respect to any Trust Account, all fees which Seller is entitled to receive with
respect to such Trust Account pursuant to the Governing Agreements, including, without limitation,
all account administration fees (whether payable annually, quarterly, monthly or otherwise) and any
asset administration fees.



GAAP – With respect to any financial statement, generally accepted accounting principles as
used in the United States of America as in effect at the time such financial statement was
prepared.



Governing Agreements – All trusts, wills, contracts, resolutions, agreements and other written
documentation pursuant to which the Trust Accounts have been established and/or are governed,
including any amendments thereto.



Governmental Entity – Any government or any agency, bureau, board, commission, court,
department, official, political subdivision, tribunal or other instrumentality of any government
having authority in the United States or any other nation, whether federal, state or local.



Indemnified Party – As defined in Section 7.2(a).



Indemnifying Party – As defined in Section 7.2(a).



Independent Accounting Firm- Freed Maxick & Battaglia, P.C.



Injunction – As defined in Section 8.1(b).



Knowledge – A person shall be deemed to have knowledge of a fact, circumstance or event when
it is actually known, without a duty of investigation, to such person.



Losses – Any and all after-tax costs, losses, taxes, liabilities, obligations, damages,
lawsuits, claims, demands and expenses (including Third-Party Claims), including reasonable
attorney’s fees and all amounts paid in investigation, defense or settlement of any of the
foregoing. Notwithstanding anything in this Agreement to the contrary, no party hereto shall be
required to indemnify or hold harmless any other party hereto or otherwise compensate any other
party hereto for Losses with respect to exemplary, consequential, special, indirect or punitive
damages, including any loss theories based on a multiple of purchase price or lost profits.



Material Adverse Effect — A material adverse effect on the assets, business, condition
(financial or otherwise), or results of operations of the entity with respect to which the effect
occurs, other than any effect relating to (a) the general business, economic, political, social or
regulatory conditions, or the financial, banking or securities markets, in the localities, or
regions where Seller operates, (b) the industry in which Seller operates in general and not
specifically relating to Seller, (c) the announcement of this Agreement or of the intention to sell
the Trust Company, or (d) the transactions contemplated by this Agreement.



Merger – As defined in the Recitals.



Merger Consideration –An amount equal to (i) 2.01% of the aggregate Fair Market Value
of the Trust Assets transferred in this transaction as of the close of business in the Business
Day immediately preceding the Closing Date, plus (ii) the Equity Value.



Non-objecting Trust Account – Any Trust Account with respect to which the Trust Company is
named the successor trustee pursuant to the Section 154 Order.



Notice Date – As defined in Section 2.6(b).



Notice of Disagreement – As defined in Section 2.7(b).



NYBL – The New York Banking Law.



OCC – As defined in Section 2.2.



Person – Any individual, corporation, company, limited liability company, partnership (limited
or general), joint venture, association, trust or other entity.



Purchaser – As defined in the Introduction.



Records – All Governing Agreements and all records (in whatever form or media) and original
documents in Seller’s or Trust Company’s possession or under their control which pertain to and/or
are or have at any time been utilized by Seller or Trust Company to administer, reflect, monitor,
evidence or record information (including, but not limited to, information regarding transactions
in or with respect to, and federal and state income tax returns for, such Trust Accounts and Trust
Asset Portfolio) respecting the Trust Accounts and the Trust Asset Portfolio and all such records
and original documents respecting the Non-objecting Trust Accounts.



Requisite Regulatory Approvals – As defined in Section 8.1(a).



Section 154 Order – The order of the Supreme Court entered in connection with the Section 154
Petition substituting Trust Company for Seller in every fiduciary capacity designated therein with
respect to the Non-objecting Trust Accounts.



Section 154 Petition – The petition to the Supreme Court to be filed by Seller and Trust
Company in accordance with Section 154 of the NYBL, pursuant to which Trust Company will be
substituted in every existing fiduciary capacity for Seller with respect to all Non-objecting Trust
Accounts.



Securities – Any (a) privately or publicly issued capital stock, bonds, notes, debentures,
commercial paper, bank acceptances, trade acceptances, trust receipts and other obligations,
partnership interests, instruments or evidences of indebtedness commonly referred to as securities,
warrants, options, including puts and calls or any combination thereof and the writing of such
options and (b) commodities and commodity futures contracts or options, foreign exchange and
foreign exchange futures contracts or options, other futures contracts or options of any kind
whatsoever, including any such contract relating to a financial or other index of any kind, rights
with respect to any of the foregoing, and any other arrangements for investment of financial
instruments that may from time to time be available to the public or to any individual.



Seller – As defined in the Introduction.



Subsidiary – With respect to any Person, any corporation, partnership or other entity or
organization, whether incorporated or unincorporated, which is required by GAAP to be consolidated
with such Person for financial reporting purposes.



Supplemental Settlement – As defined in Section 2.8.



Supplemental Settlement Date – As defined in Section 2.8.



Supreme Court – The Supreme Court of the State of New York, Monroe County.



Surviving Bank – As defined in Section 2.1.



Systems Records – All accounting information, reports, books, records, statements and data
regularly maintained on microfiche, electronic information systems or electronic storage media,
separately specifying or accounting for each Trust Account.



Third Party Claim – As defined in Section 7.2(a).



Trust Account – Any of the trust or fiduciary accounts or relationships disclosed pursuant to
Section 3.10(c) for which Seller acts as a fiduciary and any additional such accounts or
relationships as Purchaser agrees in writing to be included as additional Trust Accounts in
accordance with Section 6.5.



Trust Assets – With respect to any Trust Account, the cash, properties, assets, deposits,
funds, investments, agreements, bills, notes, Securities, instruments, demands, contracts and
rights that are administered, utilized, or held for payment to or other benefit of other persons
(whether or not constituting all or a portion of the corpus of any trust) by Seller as fiduciary,
custodian or trustee, pursuant to or in connection with such Trust Account.



Trust Asset Portfolio – All Securities and other Trust Assets held in the Non-objecting Trust
Accounts.



Trust Company – As defined in the Recitals.



Trust Company Common Stock – As defined in Section 2.4.



Trust Party – As defined in Section 6.8.



ARTICLE II




THE MERGER




2.1 The Merger.



Subject to the terms and conditions of this Agreement, in accordance with the provisions of
the National Bank Act, 12 U.S.C. 215a, as amended, (the “Bank Act”), at the Effective Time,
Trust Company shall merge with and into Purchaser. Purchaser shall be the surviving bank
(hereinafter sometimes called the “Surviving Bank”) in the Merger, and shall continue its
corporate existence under the laws of the United States. The name of the Surviving Bank shall
continue to be The Canandaigua National Bank and Trust Company. At the Effective Time, the
separate corporate existence of Trust Company shall terminate and all its assets shall rest in
Purchaser without any conveyance or transfer, and Purchaser shall be responsible for all the
liabilities of each of the Constituent Corporations existing as of the Effective Time.



2.2 Effective Time.



The Merger shall become effective on the effective date specified in the official
certification of the Office of the Comptroller of the Currency (“OCC”) authorizing the
Merger, which shall be no earlier than, and as soon as practicable after, the effective date and
time of the Section 154 Order. The term “Effective Time” shall be the date and, if any,
the time set forth in this official certification.



2.3 Effects of the Merger.



At and after the Effective Time, the Merger shall have the effects set forth in the Bank Act.



2.4 Conversion of Trust Company Common Stock.



At the Effective Time, the 2,000 shares of common stock, $1,000 par value, of Trust Company
(the “Trust Company Common Stock”) issued and outstanding immediately prior to the
Effective Time shall, by virtue of this Agreement and without any action on the part of the holder
thereof, be converted into and exchangeable for the right to receive the Merger Consideration. All
of the shares of Trust Company Common Stock converted into the right to receive the Merger
Consideration pursuant to this Article II shall no longer be outstanding and shall automatically be
cancelled and shall cease to exist, and the certificate previously representing such shares of
Trust Company Common Stock shall thereafter only represent the right to receive the Merger
Consideration into which the shares of Trust Company Common Stock represented by such certificate
have been converted pursuant to this Section 2.4.



2.5 Merger Consideration.



As consideration for its efforts and expenses incurred in establishing the Trust Company, and
for its agreement hereunder to use reasonable efforts to transfer the Non-objecting Trust Accounts
to the Trust Company prior to the Closing Date, to not compete with Purchaser following the Closing
as provided in Section 6.8 hereof, and to otherwise assist in the transfer of the Non-objecting
Trust Accounts from Trust Company to Purchaser, Purchaser shall pay Seller the Merger
Consideration. The parties intend that the Merger be treated as an asset purchase for federal
income tax purposes. The parties shall use their best efforts to agree as soon as practicable, but
in no event more than sixty (60) days after the Closing Date, to an allocation of the Merger
Consideration in accordance with Section 1060 of the Internal Revenue Code of 1986, as amended, and
the Treasury Regulations promulgated thereunder. Such allocation shall be reflected on a schedule
or certificate to be executed by each of the parties and delivered in accordance with this Section
2.5 hereof. The parties shall file all applicable tax returns and other documents, including IRS
Form 8594, in accordance with the agreed allocation and will not adopt or otherwise assert tax
positions inconsistent therewith (unless required to do so under applicable law). Purchaser shall
deliver to Seller a copy of a completed IRS Form 8594 as soon as practicable following the Closing
Date but in no event more than 90 days thereafter.



2.6 Payment of Estimated Merger Consideration and Equity Value at Closing.



(a) At the Closing, Purchaser shall deliver, or cause to be delivered to Seller (by wire
transfer to such account as Seller shall designate in writing at least three (3) Business Days
prior to the Closing Date) an amount equal to (i) 90% of the Estimated Merger Consideration (other
than the Equity Value), plus (ii) 100% of the Equity Value (clauses (i) and (ii),
collectively, the “Closing Date Payment”).



(b) At least two (2) Business Days prior to the Closing Date (the “Notice Date”), the
Seller shall prepare and deliver to the Purchaser:




	 	(i)	 	a list of the Non-objecting Trust Accounts, which list shall
set forth (A) with respect to each such account, (1) each Security held in such
account as of the Notice Date, (2) the Fair Market Value as of the Notice Date
of each such Security, (3) each Trust Asset which is not a Security held in
each such account and (4) the Fair Market Value as of the Notice Date of each
such Trust Asset and (B) the aggregate Fair Market Value of the Trust Asset
Portfolio as of the Notice Date;






(ii) the location(s) of all non-liquid assets included in the Trust Accounts; and




(iii) a pro forma estimated balance sheet for Trust Company as of the Notice Date
prepared in accordance with GAAP (reflecting the Trust Company after giving effect to the
transfer of the Trust Accounts to the Trust Company).



The materials to be delivered pursuant to this Section 2.6(b) and pursuant to Section 2.7(a)
reflecting the Non-Objecting Trust Accounts, the fees with respect thereto, the Trust Assets held
in such accounts and the Fair Market Value of each such asset shall be substantially in the form of
the disclosure made pursuant to Section 3.10(c) hereof.



2.7 Closing Adjustment Documents.



(a) As soon as reasonably practicable following the Closing Date, and in no event more than 30
days, thereafter, Purchaser shall prepare and deliver to Seller:




(i) a list of the Non-objecting Trust Accounts, which list shall set forth (A) with
respect to each such account, (1) each Security held in such account as of the
Closing Date, (2) the Fair Market Value as of the Closing Date of each such
Security, (3) each Trust Asset which is not a Security held in each such account,
and (4) the Fair Market Value as of the Closing Date of each such Trust Asset and
(B) the aggregate Fair Market Value of the Trust Asset Portfolio as of the Closing
Date; and




(ii) a calculation setting forth in reasonable detail the calculation of the Merger
Consideration; and




(iii) a document setting forth in reasonable detail the calculations contemplated by
Section 2.8 below ((i) – (iii), collectively the “Closing Adjustment
Documents”).



The parties shall cooperate in the preparation of the Closing Adjustment Documents in
accordance with this Section 2.7 and Section 2.8 hereof, including such additional documents as may
be necessary to calculate the Merger Consideration. Without limiting the generality of the
foregoing, each party shall provide the other party and its designees with reasonable access to its
records, personnel and representatives which relate to the Trust Asset Portfolio and such other
information as the other party may require in connection with the preparation or review, as the
case may be, of the Closing Adjustment Documents and with respect to the resolution of any
Disagreement (as defined below).



(b) Within twenty days after delivery of the Closing Adjustment Documents to Seller, Seller
may dispute all or any portion of the Closing Adjustment Documents by giving written notice (a
’’Notice of Disagreement”) to Purchaser setting forth in reasonable detail the basis for
any such dispute (any such dispute being hereinafter called a “Disagreement”). The parties
shall promptly commence good faith negotiations with a view to resolving all such Disagreements. If
Seller does not give a Notice of a Disagreement in accordance with the provisions of the first
sentence of this paragraph (b) within the twenty-day period set forth therein, Seller shall be
deemed to have irrevocably accepted the Closing Adjustment Documents in the form delivered to
Seller by Purchaser.



(c) If Seller shall deliver a Notice of Disagreement and Purchaser shall not dispute all or
any portion of such Notice of Disagreement by giving written notice to Seller setting forth in
reasonable detail the basis for such dispute within twenty days following the delivery of such
Notice of Disagreement, Purchaser shall be deemed to have irrevocably accepted the Closing
Adjustment Documents as modified in the manner described in the Notice of Disagreement. If
Purchaser disputes all or any portion of the Notice of Disagreement within the twenty-day period
described in the previous sentence, and within twenty days following the delivery to Seller of the
notice of such dispute Seller and Purchaser do not resolve the Disagreement (as evidenced by a
written agreement between them), such Disagreement shall be referred to the Independent Accounting
Firm for resolution of such Disagreement in accordance with the terms of this Agreement. If Seller
and Purchaser do not promptly agree on the selection of an Independent Accounting Firm, their
respective independent public accountants shall select such firm. The determinations made by the
Independent Accounting Firm with respect to any Disagreement shall be final and binding upon the
parties and the amount so determined shall be used to complete the final Closing Adjustment
Documents. Seller and Purchaser shall use their best efforts to cause the Independent Accounting
Firm to render its determination as soon as practicable after referral of the Disagreement to such
firm, and each shall cooperate with such firm and provide such firm with reasonable access to the
books, records, personnel and representatives of it and its Subsidiaries and such other information
as such firm may require in order to render its determination. All of the fees and expenses of any
Independent Accounting Firm retained pursuant to this paragraph (c) shall be paid one-half by
Seller and one-half by Purchaser.



2.8 Supplemental Settlement; Additional Merger Consideration.



Promptly after the Closing Adjustment Documents have been finally determined in accordance
with Section 2.7 hereof, but in no event later than five Business Days following such final
determination (the “Supplemental Settlement Date”), the parties hereto shall effect a
supplemental settlement (the “Supplemental Settlement”), either by telephone or in person
at a mutually convenient location. If the Merger Consideration as reflected in the Closing
Adjustment Documents is greater than the Closing Date Payment, Purchaser shall wire transfer in
immediately available funds to an account specified by Seller on the Supplemental Settlement Date
an amount equal to the difference between the Final Merger Consideration and the Closing Date
Payment. If the Merger Consideration as reflected in the Closing Adjustment Documents is less than
the Closing Date Payment, Seller shall wire transfer in immediately available funds to an account
designated by Purchaser on the Supplemental Settlement Date an amount equal to the difference
between the Closing Date Payment and the Final Merger Consideration.



2.09 Purchaser Bank Common Stock.



The shares of common stock, par value $20.00 per share, of Purchaser issued and outstanding
immediately prior to the Effective Time shall remain issued, outstanding and unchanged after the
Merger.



2.10 Articles of Association.



At the Effective Time, the Articles of Association of Purchaser, as in effect at the Effective
Time, shall be the Articles of Association of the Surviving Bank.



2.11 By-Laws.



At the Effective Time, the By-Laws of Purchaser, as in effect immediately prior to the
Effective Time, shall be the By-Laws of the Surviving Bank until thereafter amended in accordance
with applicable law.



2.12 Directors and Officers.



The directors and officers of Purchaser immediately prior to the Effective Time shall be the
directors and officers of the Surviving Bank, each to hold office in accordance with the By-Laws of
the Surviving Bank until their respective successors are duly elected or appointed and qualified.



ARTICLE III

REPRESENTATIONS AND WARRANTIES OF SELLER




	 	 	 
	Seller hereby represents and warrants to Purchaser as follows:

	 
	 	 
	3.1

	 	Corporate Organization.






(a) Seller is a New York banking association duly organized, validly existing and in good
standing under the laws of the State of New York. Seller has the corporate power and authority to
own or lease all of its properties and assets and to carry on its business as it is now being
conducted, and is duly licensed or qualified to do business in each jurisdiction in which the
nature of the business conducted by it or the character or location of the properties and assets
owned or leased by it makes such licensing or qualification necessary, except where the failure to
be so licensed or qualified would not have a material adverse effect on the conduct of Seller’s
business with respect to the Trust Accounts.



(b) Upon its formation, Trust Company will be a trust company duly organized, validly existing
and in good standing under the laws of the State of New York, with its principal office located in
East Rochester, New York. Upon its formation, Trust Company will have the corporate power and
authority to be substituted in every fiduciary capacity in place of Seller with respect to the
Trust Accounts, to act in such capacity thereafter and to conduct the business with respect to the
Trust Accounts as currently conducted by Seller.



(c) The minute books of Trust Company will contain true, complete and accurate records of all
meetings and other corporate actions held or taken by the sole stockholder and the Board of
Directors of Trust Company.



3.2 Capitalization.



Upon its formation, the authorized capital stock of Trust Company will consist of 2,000 shares
of Trust Company Common Stock, $1,000 par value per share, and no shares of preferred stock. Upon
its formation, Trust Company will issue 2,000 shares of Trust Company Common Stock to Seller. As
of the Closing Date, all of the issued and outstanding shares of Trust Company Common Stock will
have been duly authorized and validly issued and will be fully paid, nonassessable and free of
preemptive rights, with no personal liability attaching to the ownership thereof, except as
provided in Section 114 of the NYBL. As of the Closing Date, all of the outstanding shares of
Trust Company Common Stock will be owned by Seller, free and clear of all Encumbrances, contracts,
rights, options and assignments whatsoever. As of the Closing Date, no shares of Trust Company
Common Stock will be reserved for issuance, and Trust Company will not have and will not be bound
by any outstanding subscriptions, options, warrants, calls, commitments or agreements of any
character calling for the purchase or issuance of any shares of Trust Company Common Stock or any
other equity security of Trust Company or any securities representing the right to purchase or
otherwise receive any shares of Trust Company Common Stock or any other equity security of Trust
Company.



3.3 Assets and Trust Assets.



(a) At the Closing, Trust Company will have no assets, liabilities (whether absolute,
contingent, accrued or otherwise), properties, contracts, rights, obligations, or debts, other than
cash or short-term cash equivalents constituting Trust Company’s capitalization, and such other
rights and obligations as may exist pursuant to the Governing Agreements in respect of the
Non-objecting Trust Accounts.



(b) At the Closing, Trust Company will hold no Trust Assets other than the Trust Assets of the
Non-objecting Trust Accounts, and the Trust Assets delivered to Purchaser hereunder with respect to
each Non-objecting Trust Account will constitute all of the Trust Assets required by the Governing
Agreements to be held in such Non-objecting Trust Accounts.



(c) At the Closing, Trust Company shall have engaged in no operations other than those related
to its organization and capitalization.



3.4 Authority; No Violation.



(a) Seller has full corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby have been duly and validly approved by all
necessary corporate action on the part of Seller, and no other corporate proceedings on the part of
Seller are necessary to approve this Agreement and to consummate the transactions contemplated
hereby. This Agreement has been duly and validly executed and delivered by Seller and (assuming
due authorization, execution and delivery of this Agreement by Purchaser) constitutes a valid and
binding obligation of Seller, enforceable against Seller in accordance with its terms, except as
enforcement may be limited by general principles of equity whether applied in a court of law or a
court of equity and by bankruptcy, insolvency and similar laws affecting creditors’ rights and
remedies generally.



(b) Upon its formation, Trust Company will have full power and authority to execute and
deliver this Agreement and to consummate the transactions contemplated hereby. The execution and
delivery by Trust Company of this Agreement and the consummation of the transactions contemplated
hereby will be duly and validly approved by the Board of Directors of Trust Company and by Seller
as sole stockholder of Trust Company, and, upon such approvals, no other corporate proceedings on
the part of Trust Company will be necessary to consummate the transactions contemplated hereby.
This Agreement will be duly and validly executed and delivered by Trust Company and (assuming due
authorization, execution and delivery of this Agreement by Purchaser) will constitute a valid and
binding obligation of Trust Company, enforceable against Trust Company in accordance with its
terms, except as enforcement may be limited by general principles of equity whether applied in a
court of law or a court of equity and by bankruptcy, insolvency and similar laws affecting
creditors’ rights and remedies generally.



(c) Neither the execution and delivery of this Agreement by either Seller or Trust Company,
nor the consummation by either Seller or Trust Company of the transactions contemplated hereby, nor
compliance by Seller or Trust Company with any of the terms or provisions hereof, will (i) conflict
with or result in a breach of any provision of the organization certificate or by-laws of Seller or
Trust Company, or (ii) assuming that the consents, permits, authorizations, approvals, filings and
registrations referred to in Section 3.6 and Section 4.3 hereof are duly obtained, (x) violate any
standard of common law applicable to Seller or Trust Company, or any material statute, code,
ordinance, rule, regulation, judgment, order, writ, decree or injunction applicable to Seller or
Trust Company or any of their respective properties or assets, or (y) violate, conflict with,
result in a breach of any provision of or the loss of any benefit under, constitute a default (or
an event which, with notice or lapse of time, or both, would constitute a default) under, result in
the termination of, accelerate the performance required by, or result in a right of termination or
acceleration under or the creation of any Encumbrance upon any of the respective properties or
assets of Seller or Trust Company under, any of the terms, conditions or provisions of any note,
bond, mortgage, indenture, deed of trust, license, lease, agreement (including, without limitation,
any Governing Agreement) or other instrument or obligation to which Seller or Trust Company is a
party, or by which they or any of their respective properties or assets may be bound or affected,
except in the case of the clause (y), for such violations, conflicts, breaches or defaults (other
than those with respect to any Governing Agreement) which, either individually or in the aggregate,
would not have a Material Adverse Effect on the Non-objecting Trust Accounts (considered in the
aggregate) or on Seller’s or Trust Company’s (a) rights under or with respect to any such Governing
Agreements or (b) ability to consummate the transactions contemplated hereby.



3.5 Good Standing and Compliance Under Governing Agreements.



(a) As of the date hereof, Seller has been validly appointed and is the duly acting trustee
with respect to each of the Trust Accounts and in such capacity has valid legal title to the Trust
Assets. Seller has not taken any action, nor has Seller omitted to take any action, which would
cause it to be subject to disqualification or removal from any capacity that it now occupies with
respect to any of the Trust Accounts, nor has Seller been so disqualified or removed from any such
capacity.



(b) Seller has made available to Purchaser true (to Seller’s knowledge) copies of all
Governing Agreements in the possession of Seller. All of the various Governing Agreements to which
Seller is a party were duly executed and delivered by it. All of the Governing Agreements
constitute valid and binding obligations of Seller and, to Seller’s knowledge, each of the other
parties thereto, enforceable against Seller and, to Seller’s knowledge, each such other party in
accordance with their respective terms, except as may be limited by general principles of equity
whether applied in a court of law or a court of equity and by bankruptcy, insolvency, and similar
laws affecting creditors’ rights and remedies generally. No party under any Governing Agreement
with respect to a Non-objecting Trust Account will have any right to remove or replace Purchaser as
trustee, or to appoint any co-trustee, with respect to any Trust Account solely as a result of the
Merger and the other transactions contemplated hereby.



(c) Seller has performed, in all material respects, all duties and obligations, made all
determinations and complied, in all material respects, with all administrative procedures required
to be performed or made by it under each of the Governing Agreements with respect to the Trust
Accounts.



3.6 Consents and Approvals.



(a) Except for (i) the filing of an application by Seller with the Banking Department
requesting approval to organize Trust Company under the NYBL (and, if so required by the Banking
Department, a separate application to expand Seller’s parent bank holding company), and approval of
such applications, (ii) the required notices to, or consents or approvals from, the Governmental
Entities listed on Schedule 3.6(a), including the FDIC, if applicable, and (iii) the filing
with the Supreme Court of the Section 154 Petition and the issuance by the Supreme Court of the
Section 154 Order, no consents, permits, approvals, authorizations or orders of or filings or
registrations with any Governmental Entity or with any third party (including, without limitation,
any party to any Governing Agreement) are required to be obtained or made by or on behalf of Seller
or Trust Company in connection with (1) the execution and delivery by Seller and Trust Company of
this Agreement and (2) the consummation by Seller or Trust Company of the Merger and the other
transactions contemplated hereby (including without limitation the succession by Trust Company to
all of the rights and obligations of Seller as fiduciary with respect to the Non-objecting Trust
Accounts).



(b) As of the date hereof, Seller is not aware of any reasons relating to Seller or Trust
Company why all consents and approvals (including the approval of the Banking Department with
respect to the organization of the Trust Company, the entry by the Supreme Court of the Section 154
Order (except for any objections that may be received from the New York Attorney General or any
trust beneficiaries) and the consents listed on Schedule 3.6(a)) will not be procured from
all Governmental Entities having jurisdiction over the transactions contemplated by this Agreement
as shall be necessary for consummation of the Merger and the other transactions contemplated by
this Agreement (including without limitation the succession by Trust Company to all of the rights
and obligations of Seller as fiduciary with respect to the Non-objecting Trust Accounts).



3.7 Regulatory Reports; Examinations.



At Closing, Trust Company will have timely filed all reports, registrations and statements,
together with any amendments required to be made with respect thereto, that it was required to file
with any Governmental Entity and will have paid all fees and assessments due and payable in
connection therewith. The most recent Banking Department examination rating of Seller’s trust
operations have been not less than “satisfactory”. No Governmental Entity has initiated any
proceeding or, to the knowledge of Seller, investigation into the business or operations of Trust
Company or the business and operations of Seller with respect to the Trust Accounts. There is no
unresolved violation, criticism or exception asserted by any Governmental Entity with respect to
any report or statement relating to any examinations of Seller or Trust Company with respect to the
Trust Accounts or the operations of Seller or Trust Company related thereto.



3.8 Broker’s Fees.



Except for the engagement by Seller of DWQ Associates, Ltd., neither Seller nor Trust Company
nor any of their respective officers or directors has employed any broker or finder or incurred any
liability for any broker’s fees, commissions or finder’s fees in connection with any of the
transactions contemplated by this Agreement.



3.9 Legal Proceedings.



(a) Neither Seller nor Trust Company is a party to any, and there are no pending or, to
Seller’s knowledge, threatened, legal, administrative, arbitral or other proceedings, claims,
actions or governmental or regulatory investigations of any nature against Trust Company or Seller
(which proceedings, claims, actions or investigations, in the case of Seller, involve or relate in
any manner to the Trust Accounts, other than accounting proceedings), or challenging the validity
or propriety of the transactions contemplated by this Agreement.



(b) There is no injunction, order, judgment, decree or regulatory restriction imposed upon
Trust Company or Seller (which, in the case of Seller, involves or relates in any manner to the
Trust Accounts).



(c) Seller has delivered to Purchaser a list of all pending accounting proceedings known to it
relating to the Trust Accounts, if any, setting forth account name, account number, amount of Trust
Assets involved and (if known) the attorneys representing Seller.



3.10 Administration of the Trust Accounts.



(a) Seller and Trust Company have properly administered in all material respects all of the
Trust Accounts in accordance with the terms of the Governing Agreements, applicable state and
federal statutory laws and regulations and applicable common law fiduciary standards (including
standards with respect to conflicts of interest and self-dealing). To Seller’s knowledge, neither
Seller nor Trust Company nor any of their respective directors, officers or employees has committed
any breach of trust with respect to any of the Trust Accounts.



(b) Seller has disclosed to Purchaser on Schedule 3.10(b) any arrangements it has put
in place for certain of its employees in connection with the Merger.



(c) Seller has provided Purchaser a true, correct and complete listing, as of February 28,
2006, of all of the Trust Accounts, the Trust Assets and the Fair Market Value of the Trust Assets
held in such Trust Accounts together with the account number, the Fair Market Value of the assets
under management as of such date, the Fees paid and accrued year-to-date with respect to each Trust
Account as of such date. That listing accurately presents, and the updates of same delivered in
accordance with Section 6.5 hereof will accurately present, as of the dates thereof, the foregoing
information.



(d) To Seller’s knowledge, there is no default existing under any Governing Agreement and
there is no event of default (as defined in any such Governing Agreement) or event, which with the
lapse of time or giving of notice, or both, would constitute an event of default under any
Governing Agreement.



3.11 Compliance with Applicable Law.



Each of Seller and Trust Company holds all licenses, franchises, permits and authorizations
necessary for the lawful conduct of its business and operations with respect to the Trust Accounts
under and pursuant to all, and in the conduct of such business and operations has complied in all
material respects with and has been and is not in violation or default in any material respect
under any, applicable law, statute, order, rule, regulation, policy and/or guideline of any
Governmental Entity, and Seller has not received written notice of, any violations of any of the
above.



3.12 Records.



The Records and the Systems Records relating to the Trust Accounts (a) have been maintained in
all material respects in accordance with Seller’s policies and procedures in effect on the date
hereof, applied on a consistent basis, (b) are accurate and complete in all material respects, and
(c) provide in all material respects an accurate and complete separate record for each Trust
Account’s Trust Assets.



3.13 Files.



Seller’s files relating to the Trust Accounts contain copies of all Governing Agreements that
are in Seller’s possession or under its control and all other material documentation within its
possession or under its control regarding Seller’s performance of and compliance with its duties
and obligations under the Governing Agreements, including, without limitation, all material
correspondence within Seller’s possession or under its control between Seller and other persons
relating to any of the Trust Accounts.



3.14 Fees.



Seller’s fee arrangements in effect as of the date of this Agreement with respect to the Trust
Accounts are enforceable in accordance with the terms of the applicable Governing Agreements,
except as may be limited by general principles of equity whether applied in a court of law or a
court of equity and by bankruptcy, insolvency, and similar laws affecting creditors’ rights and
remedies generally. There shall be no Fees or administrative charges associated with the actions
described in Section 6.1(c) and there shall be no Fees or other charges associated with the
post-Closing transfer of Trust Account assets to accounts designated by Purchaser.



3.15 Financial Information.



(a) All written financial and accounting information previously furnished or to be furnished
by Seller to Purchaser in connection with the transactions contemplated by this Agreement is and
will be accurate and complete in all material respects as of the dates and for the periods
specified therein.



(b) The books of account of Seller with respect to the Trust Accounts have been, and are
being, maintained in all material respects in accordance with applicable legal and accounting
requirements and reflect only actual transactions.



(c) At the Effective Time, Trust Company will have no liabilities, absolute or contingent, of
any kind, other than those contingent liabilities relating to its ownership of the Trust Assets and
administration of the Trust Accounts.



3.16 Full Disclosure.



This Agreement and the written disclosures delivered by or on behalf of Seller hereunder are
true, correct and complete in all material respects. No representation or warranty of Seller
contained in this Agreement or such written disclosures hereto contains an untrue statement of a
material fact or omits to state a material fact necessary to make the statements contained herein
or therein not misleading.



ARTICLE IV

REPRESENTATIONS AND WARRANTIES OF PURCHASER




	 	 	 
	Purchaser hereby represents and warrants to Seller as follows:

	 
	 	 
	4.1

	 	Organization.






Purchaser is a national banking association duly organized, validly existing and in good
standing under the laws of the United States. Purchaser has the corporate power and authority to
own or lease all of its properties and assets and to carry on its business as it is now being
conducted, and is duly licensed or qualified to do business in each jurisdiction in which the
nature of the business conducted by it or the character or location of the properties and assets
owned or leased by it makes such licensing or qualification necessary, except where the failure to
be so licensed or qualified would not have a Material Adverse Effect on the ability of Purchaser to
consummate the Merger and to provide trust services to the Trust Accounts.



4.2 Authority; No Violation.



(a) Purchaser has full corporate power and authority to execute and deliver this Agreement and
to consummate the transactions contemplated hereby. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby have been duly and validly approved by
all necessary corporate action on the part of Purchaser, and no other corporate proceedings on the
part of Purchaser are necessary to approve this Agreement and to consummate the transactions
contemplated hereby. This Agreement has been duly and validly executed and delivered by Purchaser
and (assuming due authorization, execution and delivery of this Agreement by Seller) constitutes a
valid and binding agreement of Purchaser enforceable against Purchaser in accordance with its
terms, except as enforcement may be limited by general principles of equity whether applied in a
court of law or a court of equity and by bankruptcy, insolvency and similar laws affecting
creditors’ rights and remedies generally.



(b) Neither the execution and delivery of this Agreement by Purchaser, nor the consummation by
Purchaser of the transactions contemplated hereby, nor compliance by Purchaser with any of the
terms or provisions hereof, will (i) conflict with or result in a breach of any provision of the
Articles of Association or by-laws of Purchaser or (ii) assuming the consents, permits,
authorization, approvals, filings and registrations set forth in Section 4.3 are obtained or made,
(A) violate any standard of common law applicable to Purchaser or any statute, code, ordinance,
rule, regulation, judgment, order, writ, decree or injunction applicable to Purchaser or any of its
properties or assets or (B) violate, conflict with, result in a breach of any provisions of,
constitute a default (or an event which, with notice or lapse of time, or both, would constitute a
default) under, result in the termination of, accelerate the performance required by, or result in
a right of termination or acceleration under or the creation of any Encumbrance upon any of the
properties or assets of Purchaser under, any of the terms, conditions or provisions of any note,
bond, mortgage, indenture, deed of trust, license, lease, agreement or other instrument or
obligation to which Purchaser is a party, or by which its properties or assets may be bound or
affected, except, in the case of clause (B), for such violations, conflicts, breaches or defaults
which, either individually or in the aggregate, would not have a Material Adverse Effect on
Purchaser’s ability to consummate the transactions contemplated hereby.



4.3 Consents and Approvals.



(a) Except for (i) the filing of an application with the OCC and, if applicable, the FDIC in
connection with the Merger and the approval of such applications, and (ii) the consents and
approvals from Governmental Entities listed on Schedule 4.3(a), no consents, permits,
authorizations, approvals or orders of, or filings or registrations with, any Governmental Entity
or with any third party are required to be obtained or made by or on behalf of Purchaser in
connection with (1) the execution and delivery by Purchaser of this Agreement or (2) the
consummation of the Merger and the other transactions contemplated hereby.



(b) As of the date hereof, Purchaser is not aware of any reasons relating to Purchaser why all
consents and approvals (including the approval of the OCC and, if applicable, the FDIC, with
respect to the Merger application and the consents and approvals listed on Schedule 4.3(a))
will not be procured from all Governmental Entities having jurisdiction over the transactions
contemplated by this Agreement as shall be necessary for the consummation of the Merger and the
other transactions contemplated by this Agreement.



4.4 Financing.



On or prior to the Closing Date, Purchaser will have sufficient funds to enable Purchaser to
consummate the transactions contemplated hereby.



4.5 Broker’s Fees.



Neither Purchaser nor any of its officers or directors has employed any broker or finder or
incurred any liability for any broker’s fees, commissions or finders’ fees in connection with any
of the transactions contemplated by this Agreement.



ARTICLE V

COVENANTS RELATING TO CONDUCT OF BUSINESS




5.1 Covenants of Seller.



(a) During the period from the date of this Agreement and continuing until the Effective Time,
except as expressly contemplated or permitted by this Agreement or with the prior written consent
of Purchaser, Seller (and, following the entry by the Supreme Court of the Section 154 Order, Trust
Company) shall carry on its business and operations with respect to the Trust Accounts in the
ordinary course consistent with past practice in compliance with all applicable law and regulations
and in compliance with the Governing Agreements and shall not modify its Fee schedule or increase
the individual Fees applicable to any of the Trust Accounts. Seller (and, following the entry by
the Supreme Court of the Section 154 Order, Trust Company with respect to the Non-objecting Trust
Accounts) will use its reasonable best efforts to (x) preserve its business with respect to the
Trust Accounts intact and (y) preserve for itself the goodwill of all Persons with whom fiduciary
and business relationships exist under the Trust Accounts, provided that the filing of an objection
with respect to any Trust Account during the Section 154 proceedings shall not in itself be deemed
to constitute a breach of the covenants contained in this Section 5.1.



(b) Without limiting the generality of the foregoing, except as otherwise contemplated by this
Agreement or consented to in writing by Purchaser, during the period from the date of this
Agreement through the Effective Time, Seller shall not, and shall not permit Trust Company to (i)
reduce or agree to reduce any Fees or other compensation payable with respect to any Trust Account
unless such reduction is required under the Governing Agreements or (ii) otherwise amend any
Governing Agreement unless such amendment is requested by a beneficiary of the Trust Account or a
party to the Governing Agreement other than Seller and otherwise is permitted under the Governing
Agreement.



5.2 Covenants of Trust Company.



Prior to the Effective Time, Trust Company shall take no action other than as contemplated by
this Agreement or as shall be necessary to effect the transactions contemplated by this Agreement
or to carry on the business with respect to the Trust Accounts in the ordinary course consistent
with the past practice of Seller with respect to such accounts. All cash money accounts and
securities accounts of the Trust Accounts will be in balance as of the Closing Date, except for
overdrafts incurred in the ordinary course of Seller’s personal trust business.



ARTICLE VI

ADDITIONAL AGREEMENTS




6.1 Commercial Efforts.



(a) Subject to the terms and conditions hereof, each of the parties shall use its respective
reasonable best efforts to take, or cause to be taken, all action and to do, or cause to be done,
all things necessary, proper or advisable to consummate and make effective the Section 154 Order,
the Merger and the other transactions contemplated by this Agreement.



(b) In case at any time after the Closing Date, any further action is necessary or desirable
to carry out the purposes of this Agreement, to validly appoint Purchaser as trustee of the Trust
Accounts, to vest Purchaser with valid legal title to any of the Trust Assets or to otherwise
enable Purchaser to lawfully administer the Non-objecting Trust Accounts, Seller and Trust Company
shall reasonably cooperate with Purchaser and shall take all such lawful and necessary action as
may be reasonably required. Seller and Trust Company shall promptly provide such information and
reasonable assistance as may be requested by Purchaser in connection with the foregoing.



(c) Seller agrees to assist Purchaser in the orderly transfer of trust administration business
and conversion of the related data files and Records associated with the business and acknowledges
that Purchaser may use a trust administration operating system different from its own. To the
extent its Records allow, Seller agrees to provide reasonable assistance and information to
Purchaser’s authorized agents and to provide reasonable assistance in trial runs of Purchaser’s
operating system. In the event that the parties mutually agree that it would be desirable to
effect the Merger prior to the time when Purchaser has concluded that a safe and sound conversion
of the trust Accounts to administrative systems selected by Purchaser can be effected, the parties
agree to negotiate in good faith a transitional services agreement whereby Seller will continue to
provide administrative services (but not perform fiduciary duties) with respect to the Trust
Accounts until such time as set forth in the transitional services agreement.



6.2 Regulatory and Other Matters.



(a) The parties hereto shall cooperate with each other and use their reasonable best efforts
to promptly prepare and file all necessary documentation, to effect all applications, notices,
petitions and filings, and to obtain as promptly as practicable all permits, consents, approvals,
authorizations and orders of all third parties and Governmental Entities which are necessary or
advisable to consummate the transactions contemplated by this Agreement. Seller shall be
responsible for obtaining all such permits, consents, approvals, authorizations and orders in
connection with the organization of Trust Company and the substitution of Trust Company as
fiduciary with respect to the Trust Accounts, including but not limited to, (i) the approval of the
Banking Department with respect to the organization of Trust Company, (ii) the entry by the Supreme
Court of the Section 154 Order and (iii) the consents listed on Schedule 3.6(a). Purchaser
shall be responsible for obtaining all such permits, consents, approvals, authorizations and orders
that are required by it in connection with the Merger, including but not limited to (i) the
approval of the OCC and, if applicable, the FDIC of the Merger and (ii) the issuance by the OCC of
a certificate authorizing the Merger, and all costs and expenses associated therewith shall be
borne by Purchaser. Purchaser and Seller shall have the right to review in advance, and to the
extent practicable each will consult with the other on, in each case subject to applicable laws
relating to the exchange of information, all the information relating to Purchaser, Seller or Trust
Company, as the case may be, which appear in any filing, application or petition made with, or
written materials submitted to, any third party or any Governmental Entity in connection with the
transactions contemplated by this Agreement; provided, however, that nothing contained herein shall
be deemed to provide Seller with a right to review any information provided by Purchaser, or
Purchaser with a right to review any information provided by Seller, to any Governmental Entity on
a confidential basis in connection with the transactions contemplated hereby. The parties hereto
agree that they will consult with each other with respect to the obtaining of all permits,
consents, approvals, authorizations and orders of all third parties and Governmental Entities
necessary or advisable to consummate the transactions contemplated by this Agreement and each party
will keep the other apprised of the status of matters relating to completion of the transactions
contemplated herein. Purchaser shall have the right to review and to approve all written materials
to be used by Seller in connection with obtaining all consents, approvals, authorizations and
orders necessary to consummate the transactions contemplated by this Agreement (including, without
limitation, the application to the Banking Department in connection with the organization of Trust
Company, the Section 154 Petition and any notices mailed or published in accordance with Section
154 of the NYBL). Seller shall have the right to review and to approve all written materials to be
used by Purchaser in connection with obtaining all consents, approvals, authorizations and orders
necessary to consummate the transactions contemplated by this Agreement (including, without
limitation, the application to the OCC for approval of the Merger). In exercising the foregoing
rights and obligations, each of the parties hereto shall act reasonably and as promptly as
practicable.



(b) Purchaser and Seller shall, upon request, furnish each other with all reasonable
information concerning themselves, their respective Subsidiaries, directors, officers and
stockholders, and such other matters as may be reasonably necessary or advisable in connection with
any statement, filing, notice or application made by or on behalf of Purchaser, Seller, Trust
Company or any of their respective Subsidiaries to any Governmental Entity in connection with the
transactions contemplated by this Agreement; provided, however, that nothing contained herein shall
be deemed to provide Seller with a right to any information provided by Purchaser, or Purchaser
with a right to any information provided by Seller, to any Governmental Entity on a confidential
basis in connection with the transactions contemplated hereby.



(c) Purchaser and Seller shall promptly advise each other upon receiving (i) any communication
from any Governmental Entity whose consent, authorization or approval is required for consummation
of the transactions contemplated by this Agreement that relates to such consent, authorization or
approval or (ii) any communication from any third party made in connection with any such consent,
authorization or approval (including, in the case of Seller or Trust Company, any written objection
with respect to the Section 154 Petition).



6.3 Access to Information.



(a) During the period from the date hereof to the Closing Date, subject to applicable laws
relating to the exchange of information, Seller shall, and shall cause Trust Company to, authorize
and permit Purchaser and its representatives, accountants and counsel to have reasonable access to
the Records, and, to the extent reasonably necessary, shall make available Seller’s representatives
to respond to questions regarding the Records. In connection with such examination and access,
Purchaser agrees to observe any confidentiality agreements known to it between Seller and third
parties related to such information. The information and access contemplated by this Section
6.3(a) shall be provided during normal business hours, upon reasonable written or oral notice and
in such manner as will not unreasonably interfere with the conduct of Seller’s or its Subsidiaries’
businesses.



(b) For purposes of Purchaser’s investigation pursuant to this Section 6.3(b), Seller upon
reasonable written or oral notice shall use its reasonable efforts to attempt to cause any third
party under contract to Seller to furnish to Purchaser, and to its authorized representatives,
reasonable access to such party’s books, records and properties, including, without limitation, all
investment, regulatory, financial, accounting, and tax records and files relating to the
administration of the Trust Accounts, and all files, computer records and account information
necessary for the conversion after the Closing Date of the Trust Accounts, from the operating
systems of Seller to such systems as Purchaser may designate. To the extent necessary, Seller
shall use its reasonable efforts to attempt to cause any third party servicer or other third party
to provide access to such party’s premises and adequate space and facilities and the cooperation of
its personnel, including, without limitation, copying facilities, to the end that such examination
shall be completed expeditiously, completely and accurately. Any such investigation or examination
pursuant to this Section 6.3(b) shall be at Purchaser’s expense. Without limiting any of the
foregoing, Purchaser and its authorized representatives shall be specifically entitled to conduct
(and Seller shall use its reasonable efforts to attempt to enable it to conduct) tests of any
matters as they deem reasonably appropriate.



(c) Any information furnished by Seller or any third party service provider to Purchaser and
its representatives pursuant hereto shall be treated as the sole property of Seller and, if the
Merger shall not occur, Purchaser and its representatives shall return to Seller all of such
written information and all documents, notes, summaries or other materials containing, reflecting
or referring to, or derived from, such information. Purchaser shall, and shall use its reasonable
best efforts to cause its representatives to, keep confidential all such information, and shall not
directly or indirectly use such information for any competitive or other commercial purpose. The
obligation to keep such information confidential shall continue for five years from the date the
proposed Merger is abandoned and shall not apply to (i) any information which (a) was already in
Purchaser’s possession prior to the disclosure thereof by Seller; or (b) was then generally known
to the public or (c) was disclosed to Purchaser by a third party not known by Purchaser to be bound
by an obligation of confidentiality that was known or should have been known by Purchaser; or (ii)
disclosures made as required by law. It is further agreed that, if in the absence of a protective
order or the receipt of a waiver hereunder, Purchaser is nonetheless compelled to disclose
information concerning Seller to any Governmental Entity or else stand liable for contempt or
suffer other censure or penalty, Purchaser may following written notice to Purchaser disclose such
information to such Governmental Entity without liability hereunder. Purchaser shall promptly
notify Seller in writing of any request by any Governmental Entity for disclosure of any
information required to be kept confidential hereunder.



(d) No investigation by Purchaser shall affect the representation, warranties, covenants or
indemnification obligations of Seller which are contained herein and each such provision shall
survive investigation.



6.4 Legal Conditions to Transaction.



Subject to the terms and conditions of this Agreement, each of Purchaser and Seller shall, and
Seller shall cause Trust Company to, use its reasonable best efforts: (a) to take, or cause to be
taken, all actions necessary, proper or advisable to comply promptly with all legal requirements
which may be imposed on such parties or their respective Subsidiaries with respect to the
transactions contemplated by this Agreement and, subject to the conditions set forth in Article
VIII hereof, to consummate the transactions contemplated by this Agreement and (b) to obtain (and
to cooperate with the other party to obtain) any consent, authorization, order or approval of, or
any exemption by, any Governmental Entity and any other third party which is required to be
obtained by Purchaser, Seller or Trust Company, or any of their respective Subsidiaries, in
connection with the transactions contemplated by this Agreement, provided, however, that neither
Seller nor Purchaser shall be required to take any action pursuant to the foregoing if the taking
of such action or such compliance or the obtaining of such consent, authorization, order or
approval or exemption is likely, in the reasonable, good faith opinion of such party’s Board of
Directors, to result in the imposition of a Burdensome Condition.



6.5 Current Information.



During the period from the date of this Agreement to the Closing Date, Seller will cause one
or more of its designated representatives to confer periodically with representatives of Purchaser
and to report the general status of its ongoing business and operations with respect to the Trust
Accounts. Seller will provide Purchaser within five Business Days of the end of each month after
the date of this Agreement and prior to the Closing Date, an updated listing of the Trust Accounts
and will promptly notify Purchaser of any material change in the Trust Accounts and of any
complaints, investigations or hearings (or communications indicating that the same may be
contemplated), or the institution or the threat of any litigation involving or relating to any of
the Trust Accounts, and will keep Purchaser fully informed of such events.



6.6 Publicity.



Except as may be required by applicable law or by the rules or regulations of any Government
Entity or securities exchange, neither Seller nor Purchaser shall, directly or indirectly, make or
cause to be made any public announcement or disclosure, or issue any notice, with respect to any of
the transactions contemplated hereby without the prior review of the other party. In any event,
prior to any such announcement or disclosure, the party intending to make such disclosure will
consult with the other party concerning such disclosure. Without limiting the generality of the
foregoing, each party shall submit to the other copies of any proposed notice or announcement with
respect to the transactions contemplated hereby or Seller’s activities relating to the Trust
Accounts at least two Business Days prior to its first use and provide the other an opportunity to
comment on any such notice or announcement before its first use. Both Seller and Purchaser will
limit the distribution of information relative to this transaction to those persons who need to be
aware of the Agreement for the performance of their duties and will consult with each other before
issuing any press releases or making any public statement to any rating agency with respect to the
transactions contemplated hereby.



6.7 Seller’s Expenses.



None of the expenses incurred or to be incurred by Seller in connection with this Agreement
and the consummation of the transactions contemplated hereby (including all fees and expenses for
services rendered by any attorneys, accountants, investment bankers and other advisors and agents
of Seller, if any, in connection with the transactions contemplated hereby) or otherwise shall be
expensed, accrued or otherwise reflected on the books and records of Trust Company.



6.8 Non-competition.



(a) For a period of five years following the Closing Date, neither Seller nor any of its
Affiliates, will (i) seek to persuade any testator, grantor, settlor, administrator, trustee,
beneficiary or remainderman of any Non-objecting Trust Account (each, a “Trust Party”) to
terminate its trust relationship with Purchaser, (ii) assist any Trust Party in internalizing a
trust service previously provided by Seller, or (iii) solicit to provide to any testator, grantor,
or settlor of any Non-objecting Trust Account trust services of the type provided to such party by
Seller prior to the Merger. Notwithstanding the foregoing, nothing contained herein shall prohibit
Seller from providing any other banking services to any Trust Party. Also, advertising and other
forms of general solicitation that do not specifically relate to trust services of the type
provided by Seller prior to the Merger and that are not specifically targeted to a testator,
grantor, or settlor of a Non-objecting Trust Account shall not be prohibited by this Section
6.8(a).



(b) If any of the restrictions set forth in Section 6.8(a) should, for any reason whatsoever,
be declared invalid by a court of competent jurisdiction, the validity or enforcement of the
remainder of such restrictions and covenants shall not thereby be adversely affected. Seller
agrees that, if any provision of Section 6.8(a) should be adjudicated to be invalid or
unenforceable, then to the extent any such provision may be made valid and enforceable by
limitations on the scope of the activities, geographical area or time period covered, such
provision instead shall be deemed limited to the extent, and only to the extent, necessary to make
such provision enforceable to the fullest extent permissible.



(c) Seller’s obligations under this Section 6.8 are of a special and unique character, which
gives them a peculiar value, and are supported by valuable consideration. The parties agree that
Purchaser cannot be reasonably or adequately compensated in damages in an action at law in the
event that Seller breaches such obligations. Therefore, Seller expressly agrees that Purchaser
shall be entitled to injunctive and other equitable relief without bond or other security in the
event of a breach by Seller of any of its obligations or agreements in this Section 6.8 in addition
to any other rights or remedies which Purchaser may possess. Furthermore, the obligations of
Seller and the rights and remedies of Purchaser under this Agreement are cumulative, and not in
lieu of, any obligations, rights, or remedies created by applicable law.



6.9 Trust Company.



Seller shall use commercially reasonable efforts to cause Trust Company to be duly organized
promptly following the execution of this Agreement. Promptly following the organization of Trust
Company, Seller shall cause this Agreement to be approved on behalf of Trust Company and shall
cause Trust Company to execute and deliver to Purchaser this Agreement, to deliver to Purchaser
true, complete and correct copies of the organization certificate and bylaws of Trust Company, to
promptly file the Section 154 Petition as contemplated by Section 6.2, and to take all other action
necessary to consummate the transactions contemplated hereby, subject to the terms and conditions
hereof.




	 	6.10	 	Accountings.





(a) To the extent that necessary Records are within its control or possession, Seller shall
(or, following the entry by the Supreme Court of the Section 154 Order, shall cause Trust Company
to) make all accountings required under any Governing Agreement to be performed with respect to the
Trust Accounts and Trust Asset Portfolio through the Closing Date. From and after the date of this
Agreement, Seller shall send Purchaser copies of (i) all documents filed by it, (ii) all documents
filed or served by any other person, and (iii) any orders, judgments or notices issued by any
court, in each case in connection with such accountings.



(b) After the Closing Date, if Seller elects to conduct intermediate accountings with respect
to any Non-objecting Trust Accounts, Purchaser will, if required, join therein as co-petitioner,
and in any event shall cooperate in providing Seller information reasonably needed by Seller in
connection with such accountings, so long as such cooperation does not interfere with the normal
operation of Purchaser’s trust administration business. Without limiting the generality of the
foregoing, the parties shall permit each other’s staffs, during regular business hours, reasonable
access to the systems and Records relating to the Non-objecting Trust Accounts for the period
covered by any such accountings. Seller shall bear or reimburse Purchaser’s out-of-pocket expenses
associated with such accountings, including without limitation reasonable attorney’s fees, to the
extent such expenses relate to accounting proceedings for periods prior to the Closing Date.



(c) After the Closing Date, Seller shall join as co-petitioner and cooperate with Purchaser in
providing all information reasonably needed for Purchaser to prepare and deliver any accountings
(other than those which Seller elects to conduct) with respect to the Non-objecting Trust Accounts
which cover any period prior to the Closing Date.



(d) Seller and Purchaser agree that, to facilitate Purchaser’s preparation of future
accountings with respect to the Non-objecting Trust Accounts, Seller shall cause to be delivered
to Purchaser within twenty-four (24) months after the Closing duplicate copies of all Records in
Seller’s possession of the Non-objecting Trust Accounts. In the interim from the Closing until
such delivery, the Records shall not be relocated without Purchaser’s written consent, Purchaser
shall be the owner of the Records and Seller shall act as custodian thereof.




	 	6.11	 	Tax Returns.





Purchaser (with the direct and ongoing assistance of Seller’s fiduciary tax staff and its
outside tax consultants, at Seller’s expense) shall prepare and file all tax returns related to the
Trust Accounts (“Tax Returns”) for 2006 and Seller shall cooperate with Purchaser in
providing all information needed by Purchaser in connection therewith. To the extent permitted by
law, tax preparation Fees will be charged to the Trust Accounts.



6.12 Pro-ration of Fees; Termination Fees.



To the extent that Fees are paid in advance in respect of any Non-objecting Trust Account for
the period during which the Closing Date occurs, Seller shall on the Closing Date make a payment to
Purchaser, with respect to each such Non-Objecting Trust Account, equal to the amount determined by
multiplying (i) the total amount of such fee paid for such period in respect of such Non-objecting
Trust Account times (ii) a fraction, the numerator of which is the number of days remaining in such
period after the Closing Date and the denominator of which is the total number of days in the
period. To the extent that fees are paid in arrears in respect of any Non-objecting Trust Account
for the period during which the Closing Date occurs, Purchaser shall make a payment to Seller equal
to the amount determined by multiplying (i) the total amount of such fee paid for such period times
(ii) a fraction, the numerator of which is the number of days elapsed in such period (through and
including the Closing Date) and the denominator of which is the total number of days in the period.
Any such payments shall be made to Seller by the end of the month in which the fees are received
by Purchaser. Any “tax letter fee” received in respect of the Non-objecting Trust Accounts shall
be fully allocated to the party that prepares and files the tax returns for the fiscal year to
which the fee relates, provided that such party shall also provide all of the services that are
covered by such tax letter fee. Termination fees generated after the Closing Date from Trust
Accounts with respect to which, prior to the Closing Date, a petition has been filed with the
Surrogate’s Court with respect to termination of the trust or where a valid receipt and release has
been mailed to interested parties will be divided evenly between the parties, and Purchaser shall
account to Seller for such fees as and when such fees are collected.



6.13 Employee Matters.



No employees of Seller or Trust Company will be transferred to, or shall become employees or
contractors of, Purchaser or any of Purchaser’s Affiliates in connection with or as a result of the
transactions contemplated by this Agreement. Seller will be responsible for any severance payments
due to such employees of Seller or Trust Company. In the event that Purchaser or any of
Purchaser’s Affiliates employ or engage any such persons at any time within twelve months following
the Closing Date, Purchaser shall pay to Seller an amount equal to all severance payments paid by
Seller to such persons. Such severance payments shall be limited to severance payments that are
due under contracts or policies that existed prior to the date of this Agreement or that are
approved in advance by Purchaser.



6.14 Referral Arrangement.



Prior to the Closing Date the parties shall enter into a mutually satisfactory arrangement
pursuant to which Seller may refer the administration of trusts with assets consistent with the
profile of the Trust Accounts subject to this Agreement to Purchaser and receive from Purchaser a
reasonable fee to be agreed upon for such referrals.



6.15 Preservation of Records.



The parties agree that each of them shall preserve and keep the Records held by them relating
to administration of the Trust Accounts after the Closing Date and shall make such Records and
appropriate personnel available to the other as may be reasonably required by such party. In the
event either party wishes to destroy (or permit to be destroyed) such Records after that time, such
party shall first give ninety (90) days’ prior written notice to the other and such other party
shall have the right at its option and expense, upon prior written notice given to such party
within that ninety (90) day period, to take possession of the Records within one hundred and eighty
(180) days after the date of such notice.



ARTICLE VII

INDEMNIFICATION




7.1 Indemnification.



(a) Seller shall indemnify and hold harmless Purchaser and its Affiliates, each of their
respective officers, directors, employees and agents from and against any and all Losses which it
or they suffer, incur or sustain arising out of or attributable to (whether or not arising out of
third party claims): (i) any inaccuracy in or breach of any representation or warranty made by
Seller in this Agreement; (ii) any breach or nonperformance of any covenant to be performed by
Seller or Trust Company pursuant to this Agreement; (iii) the failure by Seller to obtain all of
the waivers, consents, authorizations, orders and approvals of any interested party with respect to
any Governing Agreements with respect to any Non-objecting Trust Accounts, if any, required in
order to consummate the Merger and the other transactions contemplated by this Agreement, (iv) any
actions or omissions of Seller or Trust Company with respect to, the Non-objecting Trust Accounts
at any time prior to the Effective Time; (v) the administration of the Non-objecting Trust Accounts
prior to the Effective Time; or (vi) Seller’s failure to deliver any Governing Agreement with
respect to any Non-objecting Trust Account. For purposes of establishing whether any matter is
indemnifiable pursuant to Section 7.1(a)(i) hereof, the accuracy of representations and warranties
made by Seller in this Agreement shall be determined without giving effect to any qualifications to
such representations concerning “knowledge”: and “materiality”. The indemnifications provided in
this Article VII shall be exclusive remedies and the parties shall not be entitled to any
additional remedies available to them.



(b) From and after the Closing Date, subject to the terms and conditions of this Agreement,
Purchaser shall indemnify and hold harmless Seller and its Affiliates, each of their respective
officers, directors, employees and agents from and against any and all Losses which it or they
suffer, incur, or sustain arising out of or attributable to (whether or not arising out of third
party claims) (i) any inaccuracy in or breach of any representation or warranty made by Purchaser
in this Agreement, (ii) any breach or nonperformance of any covenant to be performed by Purchaser
pursuant to this Agreement, and (iii) the business or operations of Purchaser with respect to the
Non-objecting Trust Accounts arising from actions or omissions of Purchaser after the Closing Date.



(c) Without limiting the generality of the foregoing provisions of this Section 7.1, as
between Seller and Purchaser, the parties agree that with respect to Losses relating to
Non-objecting Trust Accounts arising from a breach by Seller or Purchaser, as the case may be, of
its fiduciary duty with respect to the management or administration of the Non-objecting Trust
Accounts:




(i) Seller shall be solely responsible for any Losses with respect to claims of third
parties arising from a breach by Seller of its fiduciary duty on or before the Closing Date
(“Seller Matter”), except to the extent Losses which accrue subsequent to the
Closing Date are attributable to Purchaser’s breach of fiduciary duty subsequent to the
Closing Date;




(ii) Purchaser shall be solely responsible for any Losses with respect to claims of
third parties arising from a breach by Purchaser of its fiduciary duty after the Closing
Date (“Purchaser Matter”);




(iii) Seller shall indemnify and hold harmless Purchaser and its Affiliates for any
Losses with respect to a Seller Matter, except to the extent Losses which accrue subsequent
to the Closing Date are attributable to Purchaser’s breach of fiduciary duty subsequent to
the Closing Date; and




(iv) Purchaser shall indemnify Seller and its Affiliates for any Losses with respect to
a Purchaser Matter.



(d) Notwithstanding any other provision in this Agreement to the contrary, neither Seller nor
Purchaser shall be charged with any obligation under the foregoing indemnity (i) unless the
aggregate amount of Losses exceeds $20,000 (it being understood that once the aggregate amount of
Losses exceeds $20,000, the indemnifying party shall be liable for all Losses (i.e., Losses back to
the first dollar)).



(e) The obligations to indemnify and hold harmless a party pursuant to this Section 7.1, other
than indemnification obligations provided in Sections 7.1(a)(iv), 7.1(b)(iii) and 7.1(c) hereof,
shall terminate on the twelve month anniversary of the Closing Date; provided, however, that such
obligations to indemnify and hold harmless shall not terminate with respect to any item as to which
the person to be indemnified shall have previously made a claim within the appropriate time by
delivering a notice (stating in reasonable detail the basis of such claim) to the party to be
providing the indemnification; and provided, further that all covenants to be performed prior to
the Closing shall terminate at the Closing.



(f) The amount of any Losses claimed by any Seller Indemnified Party hereunder shall be net of
any insurance, indemnity, contribution or other payments or recoveries of a like nature with
respect thereto.



(g) An Indemnified Party shall not be entitled to multiple recovery for the same Losses.



(h) In determining the amount of indemnification due under this Article VI, all payments shall
be reduced by any tax benefit actually realized by the Indemnified Party on account of the
underlying claim.



7.2 Procedure.



(a) Any party entitled to be indemnified under this Agreement (an “Indemnified Party”)
seeking indemnification for any Loss or potential Loss arising from a claim asserted by a third
party against the Indemnified Party (a “Third Party Claim”) shall give prompt written
notice to the other party hereunder (the “Indemnifying Party”). Written notice to the
Indemnifying Party of the existence of a Third Party Claim shall be given by the Indemnified Party
within 45 days after its receipt of a written assertion of liability from the third party;
provided, however, that the Indemnified Party shall not be foreclosed from seeking indemnification
pursuant to this Article VII by any failure to provide timely notice of the existence of a Third
Party Claim to the Indemnifying Party except and only to the extent that the Indemnifying Party
actually incurs an out-of-pocket expense or otherwise has been damaged or prejudiced as a result of
such delay.



(b) Except as otherwise provided herein, the Indemnifying Party may elect to compromise or
defend, at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel
(which counsel shall be reasonably satisfactory to the Indemnified Party), any Third Party Claim.
If the Indemnifying Party elects to compromise or defend such Third Party Claim, it shall, within
45 days after receiving notice of the Third Party Claim, notify the Indemnified Party of its intent
to do so, and the Indemnified Party shall cooperate, at the expense of the Indemnifying Party, in
the compromise of, or defense against, such Third Party Claim. If the Indemnifying Party elects to
defend against any such Third Party Claim, the Indemnifying Party shall not have any liability to
the Indemnified Party for Losses under Section 7.1(a), (b) or (c) until such time as it has been
finally determined that the Indemnifying Party is liable for such Third Party Claim. Without
limiting the foregoing, in defending itself against any Third Party Claim (or direct indemnity
claim by Purchaser against Seller) arising under Section 7.1(a)(iv), (v) or Section 7.1(c), the
Indemnifying Party may assert as part of its defense that its alleged actions or omissions giving
rise to such claim were in accordance with: (x) the terms of any Governing Agreements, (y)
applicable state and federal statutory laws and regulations, and/or (z) applicable common law
fiduciary standards (including standards with respect to conflicts of interest and self-dealing).
If the Indemnifying Party elects not to compromise or defend against the Third Party Claim, or
fails to notify the Indemnified Party of its election to do so as herein provided, or otherwise
abandons the defense of such Third Party Claim, (i) the Indemnified Party may pay (without
prejudice of any of its rights as against the Indemnifying Party), compromise or defend such Third
Party Claim and (ii) the costs and expenses of the Indemnified Party incurred in connection
therewith shall be indemnifiable by the Indemnifying Party pursuant to the terms of this Agreement.
Notwithstanding anything to the contrary contained herein, in connection with any Third Party
Claim in which the Indemnified Party shall reasonably conclude, based upon the advice of its
counsel, that (x) there is a conflict of interest between the Indemnifying Party and the
Indemnified Party in the conduct of the defense of such Third Party Claim or (y) there are specific
defenses available to the Indemnified Party which are different from or additional to those
available to the Indemnifying Party and which could be materially adverse to the Indemnifying
Party, then the Indemnified Party shall have the right to assume and direct the defense and
compromise of such Third Party Claim. In such an event, the Indemnifying Party shall pay the fees
and disbursements of counsel to each of the Indemnifying Party and the Indemnified Party.
Notwithstanding the foregoing, neither the Indemnifying Party nor the Indemnified Party may settle
or compromise any claim (unless the sole relief payable to a third party in respect of such Third
Party Claim is monetary damages that are paid in full by the party settling or compromising such
claim) over the objection of the other, provided, however, that consent to settlement or compromise
shall not be unreasonably withheld. In any event, except as otherwise provided herein, the
Indemnified Party and the Indemnifying Party may each participate, at its own expense, in the
defense of such Third Party Claim. If the Indemnifying Party chooses to defend any claim, the
Indemnified Party shall make available to the Indemnifying Party any personnel or any books,
records or other documents within its control that are reasonably necessary or appropriate for such
defense, subject to the receipt of appropriate confidentiality agreements. Notwithstanding
anything to the contrary contained in this paragraph (b), in the event prompt action is required
with respect to the defense of a Third Party Claim, the Indemnified Party shall, subject to the
terms and conditions of this Article VII, have the right to assume the defense of such Third Party
Claim; provided, however, that in the event that the Indemnifying Party subsequently elects to
assume the defense of such Third Party Claim, then the provisions set forth in this paragraph (b)
shall be applicable and the Indemnifying Party shall, subject to the terms and conditions of this
Article VII, reimburse the Indemnified Party for any costs and expenses incurred by the Indemnified
Party prior to the date the Indemnifying Party assumes control of such Third Party Claim.



(c) Notwithstanding the foregoing, if an offer of settlement or compromise is made by a third
party claimant, and the Indemnifying Party notifies the Indemnified Party in writing of the
Indemnifying Party’s willingness to accept the settlement offer and pay the amount called for by
such offer, and the Indemnified Party declines to accept such offer, the Indemnified Party may
continue to contest such claim, free of any participation by the Indemnifying Party, and the amount
of any ultimate liability with respect to such indemnifiable claim that the Indemnifying Party has
an obligation to pay hereunder shall be limited to the lesser of (A) the amount of the settlement
offer that the Indemnified Party declined to accept plus the costs and expenses of the Indemnified
Party prior to the date the Indemnifying Party notifies the Indemnified Party of the Indemnifying
Party’s willingness to settle or compromise such Third Party Claim and (B) the aggregate Losses of
the Indemnified Party with respect to such claim.



(d) Any claim on account of a Loss which does not involve a Third Party Claim shall be
asserted by written notice given by the Indemnified Party to the Indemnifying Party. The
Indemnifying Party shall have a period of 45 days within which to respond thereto. If the
Indemnifying Party does not respond within such 45-day period, it shall be deemed to have accepted
responsibility to make payment, subject to the provisions hereof, and shall have no further right
to contest the validity of such claim. If the Indemnifying Party does respond within such 45-day
period and rejects such claim in whole or in part, the Indemnified Party shall be free to pursue
such remedies as may be available to such party by applicable law.



ARTICLE VIII

CONDITIONS




8.1 Conditions to Each Party’s Obligations Under This Agreement.



The respective obligations of each of the parties hereto to consummate the transactions
contemplated hereby shall be subject to the satisfaction on or prior to the Closing Date of the
following conditions:



(a) All approvals and orders of Governmental Entities (including without limitation the
approvals of the Banking Department, the OCC, and, if applicable, the FDIC, and the Section 154
Order) required to be obtained in connection with the transactions contemplated by this Agreement
shall have been obtained, all notices required to be filed with any Governmental Entity in
connection with the transactions contemplated by this Agreement shall have been filed, all such
regulatory approvals shall be in full force and effect, and all notice periods and waiting periods
required by law or regulation in respect thereof or otherwise applicable to the transactions
contemplated by this Agreement shall have expired or been terminated (all such approvals and the
expiration of all such waiting periods being referred to herein as the “Requisite Regulatory
Approvals”).



(b) No order, injunction or decree issued by any court or agency of competent jurisdiction or
other legal restraint or prohibition (an “Injunction”) preventing the consummation of the
Merger or any of the other transactions contemplated by this Agreement shall be in effect. No
statute, rule, regulation, order, injunction or decree shall have been enacted, entered,
promulgated or enforced by any Governmental Entity that prevents the consummation of the Merger or
the transactions contemplated hereby or that could have a Material Adverse Effect on the ability of
the Purchaser to conduct a trust administration business with respect to the Trust Accounts in
substantially the same manner as the Seller heretofore conducted such business with respect to the
Trust Accounts.



8.2 Additional Conditions to Seller’s Obligations Under This Agreement.



The obligations of Seller to consummate the transactions contemplated hereby shall be subject
to the satisfaction on or prior to the Closing Date of each of the following conditions unless
waived by Seller pursuant to Section 9.4 hereof:



(a) The obligations of Purchaser required to be performed by Purchaser on or prior to the
Closing Date pursuant to the terms of this Agreement shall have been duly performed and complied
with in all material respects, the representations and warranties of Purchaser set forth in this
Agreement shall be true and correct as of the date of this Agreement and as of the Closing Date as
though made on and as of the Closing Date (except as to any representation or warranty which speaks
as of an earlier date), and Seller shall have received a certificate of an executive officer of
Purchaser to such effect,



(b) No proceeding initiated by any Governmental Entity seeking an injunction shall be pending,
and



(c) None of the Requisite Regulatory Approvals shall contain any condition or requirement (a
“Burdensome Condition”) relating to Seller, any of Seller’s Affiliates, or Trust Company
which would or would reasonably be expected to so materially and adversely impact the economic or
business benefits of the transactions contemplated hereby so as to render inadvisable, in the
reasonable, good faith judgment of the Board of Directors of Seller, the consummation of such
transactions.



8.3 Additional Conditions to Purchaser’s Obligations Under This Agreement.



The obligations of Purchaser to consummate the transactions contemplated hereby shall be
subject to the satisfaction on or prior to the Closing Date of each of the following conditions
unless waived by Purchaser pursuant to Section 9.4 hereof:



(a) The obligations of Seller required to be performed by Seller on or prior to the Closing
Date pursuant to the terms of this Agreement shall have been duly performed and complied with in
all material respects, the representations and warranties of Seller set forth in this Agreement
shall be true and correct in all material respects as of the date of this Agreement and as of the
Closing Date as though made on and as of the Closing Date (except as to any representation or
warranty which speaks to an earlier date); and Purchaser shall have received a certificate of an
executive officer of Seller to such effect, and



(b) The consent, approval or waiver (other than the Requisite Regulatory Approvals) of each
Person whose consent or approval shall be required in connection with the consummation of the
Merger and the other transactions contemplated hereby shall have been obtained in writing in a form
reasonably acceptable to Purchaser; and



(c) No proceeding initiated by any Governmental Entity seeking an Injunction shall be pending;
and



(d) No event shall have occurred and no condition shall exist which has or is reasonably
likely to have a Material Adverse Effect on the Trust Accounts or the trust administration business
being acquired by Purchaser; and



(d) None of the Requisite Regulatory Approvals shall contain any Burdensome Condition relating
to Purchaser, any of Purchaser’s Affiliates or Trust Company which would or would reasonably be
expected to so materially and adversely impact the economic or business benefits of the
transactions contemplated hereby so as to render inadvisable, in the reasonable, good faith
judgment of the Special Committee of the Board of Directors of Purchaser, the consummation of such
transactions.



ARTICLE IX

TERMINATION AND AMENDMENT




9.1 Termination.



This Agreement may be terminated at any time prior to the Effective Time:



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



(b) by either Seller or Purchaser, upon written notice to the other party (i) 30 days after
the date on which any request or application for a Requisite Regulatory Approval shall have been
denied or withdrawn at the request or recommendation of the Governmental Entity which must grant
such Requisite Regulatory Approval, unless within the 30-day period following such denial or
withdrawal a petition for rehearing or an amended petition or application has been filed with the
applicable Governmental Entity, provided, however, that no party shall have the right to terminate
this Agreement pursuant to this Section 9.1(b)(i) if such denial or request or recommendation for
withdrawal shall be due to the failure of the party seeking to terminate this Agreement to perform
or observe the covenants and agreements of such party set forth herein, or (ii) if any Governmental
Entity of competent jurisdiction shall have issued a final nonappealable order enjoining or
otherwise prohibiting the consummation of any of the transactions contemplated by this Agreement;



(c) by either Seller or Purchaser, if the Merger shall not have been consummated on or before
December 31, 2006, unless the failure of the Closing to occur by such date shall be due to the
failure of the party seeking to terminate this Agreement to perform or observe the covenants and
agreements of such party set forth herein;



(d) by either Seller or Purchaser (provided that the terminating party is not then in material
breach of any representation, warranty, covenant or other agreement contained herein) if there
shall have been a material breach of any of the representations or warranties set forth in this
Agreement on the part of the other party, which breach is not cured within 30 days following
written notice to the party committing such breach, or which breach, by its nature, cannot be cured
prior to the Closing; provided, however, that neither party shall have the right to terminate this
Agreement pursuant to this Section 9.1(d) unless the breach of any representation or warranty,
together with all other such breaches, would entitle the party receiving such representation or
warranty not to consummate the transactions contemplated hereby under Section 8.2(a) (in the case
of a breach of a representation or warranty by Purchaser) or Section 8.3(a) (in the case of a
breach of a representation or warranty by Seller); or



(e) by either Seller or Purchaser (provided that the terminating party is not then in material
breach of any representation, warranty, covenant or other agreement contained herein) if there
shall have been a material breach of any of the covenants or agreements set forth in this Agreement
on the part of the other party, which breach shall not have been cured within 30 days following
receipt by the breaching party of written notice of such breach from the other party hereto.



9.2 Effect of Termination.



In the event of termination of this Agreement by either Seller or Purchaser as provided in
Section 9.1, this Agreement shall forthwith become void and have no effect except that (i) Sections
9.2 and 10.2 shall survive any termination of this Agreement and (ii) notwithstanding anything to
the contrary contained in this Agreement, no party shall be relieved or released from any
liabilities or damages arising out of its willful breach of any provision of this Agreement.



9.3 Amendment.



Subject to compliance with applicable law, this Agreement may be amended by the parties
hereto, by action taken or authorized by their respective Boards of Directors. This Agreement may
not be amended except by an instrument in writing signed on behalf of each of the parties hereto.



9.4 Extension; Waiver.



At any time prior to the Effective Time, the parties hereto, by action taken or authorized by
their respective Boards of Directors, may, to the extent legally allowed, (a) extend the time for
the performance of any of the obligations or other acts of the other parties hereto, (b) waive any
inaccuracies in the representations and warranties contained herein or in any document delivered
pursuant hereto and (c) waive compliance with any of the agreements or conditions contained herein.
Any agreement on the part of a party hereto to any such extension or waiver shall be valid only if
set forth in a written instrument signed on behalf of such party, but such extension or waiver or
failure to insist on strict compliance with an obligation, covenant, agreement or condition shall
not operate as a waiver of, or estoppel with respect to, any subsequent or other failure.



ARTICLE X

GENERAL PROVISIONS




10.1 Closing; Deliveries of Seller at Closing.



(a) Subject to the terms and conditions of this Agreement, the closing of the Merger (the
“Closing”) will take place at 10:00 a.m. on the first Business Day immediately following
the effective date of the Section 154 Order, or the first Business Day thereafter on which all of
the conditions set forth in Article VIII (other than those conditions which relate to actions to be
taken at the Closing) shall have been satisfied (or, where permissible, waived) (the “Closing
Date”), at the offices of Boylan, Brown, Code, Vigdor & Wilson, LLP, 2400 Chase Square,
Rochester, NY 14604, unless another time, date or place is agreed to in writing by the parties
hereto.



(b) At the Closing, Trust Company shall deliver to Purchaser possession of all Trust Assets
held on behalf of the Non-objecting Trust Accounts of the kinds and in the amounts required by the
related Governing Agreements, free of any liens or encumbrances other than those expressly provided
under the applicable Governing Agreements. Until possession of each of such Trust Assets related
to a Non-objecting Trust Account is so delivered, Trust Company (or Seller to the extent still in
possession of any such Trust Asset) shall hold the same as custodian for the benefit of Purchaser.



(c) At the Closing, Seller shall (or shall cause Trust Company to) transfer to Purchaser, at
the times and in the manner set forth in writing by Purchaser, custody of all files, papers, books,
Records, Systems Records, documents, microfilm, certificate inventory and similar property which
are necessary for the ongoing administration and servicing of the Non-objecting Trust Accounts and
the Trust Asset Portfolio.



(d) At the Closing, Seller shall (or shall cause Trust Company to) deliver to Purchaser such
other instruments of transfer as shall be necessary to transfer to and vest in Purchaser all of the
right, title and interest of Seller and Trust Company in and to such Non-objecting Trust Accounts
and the Trust Assets held therein.



10.2 Expenses.



All costs and expenses incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the party incurring such expense, provided, however, that
nothing contained herein shall limit either party’s rights to recover any liabilities or damages
arising out of the other party’s breach of any provision of this Agreement. subject to Article VII.



10.3 Notices.



All notices and other communications hereunder shall be in writing and shall be deemed given
if delivered personally, telecopied (with confirmation), mailed by registered or certified mail
(return receipt requested) or delivered by an express courier (with confirmation) to the parties at
the following addresses (or at such other address for a party as shall be specified by like
notice):




(a) if to Purchaser, to:




The Canandaigua National Bank and Trust Company


72 South Main Street


Canandaigua, New York 14424


Attention: Lawrence A. Heilbronner, SVP and CFO




and a copy to:




Boylan, Brown, Code, Vigdor & Wilson, LLP


2400 Chase Square


Rochester, New York 14604


Attention: Robert F. Mechur, Esq.




(b) if to Seller, to:




Five Star Bank


c/o Financial Institutions, Inc.


200 Liberty Street


Warsaw, New York


Attention: James Rudgers




with a copy to:




Edwards Angell Palmer & Dodge, LLP


2800 Financial Plaza


Providence, Rhode Island 02903


Attn: V. Duncan Johnson, Esq.



10.4 Interpretation.



When a reference is made in this Agreement to Sections, such reference shall be to a Section
of this Agreement unless otherwise indicated. The table of contents and headings contained in this
Agreement are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.



10.5 Counterparts; Facsimiles; pdf.



This Agreement may be executed in counterparts, all of which shall be considered one and the
same agreement and shall become effective when counterparts have been signed by each of the parties
and delivered to the other parties, it being understood that all parties need not sign the same
counterpart (provided that notwithstanding the foregoing, this Agreement shall become effective
with respect to Purchaser and Seller when counterparts have been signed by each of them and
delivered to the other). Executed documents transmitted by facsimile or pdf shall be deemed
originals.



10.6 Entire Agreement.



This Agreement (including the documents and the instruments referred to herein) constitutes
the entire agreement and supersedes all prior agreements and understandings, both written and oral,
among the parties with respect to the subject matter hereof



10.7 Governing Law; Venue.



This Agreement shall be governed and construed in accordance with the laws of the State of New
York, without regard to any applicable conflicts of law. Any legal disputes hereunder shall be
brought exclusively in the state or federal courts of New York.



10.8 Severability.



Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction
shall, as to that jurisdiction, be ineffective to the extent of such invalidity or unenforceability
without rendering invalid or unenforceable the remaining terms and provisions of this Agreement or
affecting the validity or enforceability of any of the terms or provisions of this Agreement in any
other jurisdiction. If any provision of this Agreement is so broad as to be unenforceable, the
provision shall be interpreted to be only so broad as is enforceable.



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10.9 Assignment; No Third Party Beneficiaries.



Neither this Agreement nor any of the rights, interests or obligations hereunder shall be
assigned by any of the parties hereto (whether by operation of law or otherwise) without the prior
written consent of the other parties. Subject to the preceding sentence, this Agreement will be
binding upon, inure to the benefit of and be enforceable by the parties and their respective
successors and assigns. Except as otherwise expressly provided herein, this Agreement (including
the documents and instruments referred to herein) is not intended to confer upon any person other
than the parties hereto any rights or remedies hereunder.



[Signatures appear on following pages]




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The parties hereto have executed this Agreement as of the date set forth above.




THE CANANDAIGUA NATIONAL BANK AND TRUST COMPANY




By: George W. Hamlin, IV

Name: George W. Hamlin, IV

Title: President and CEO





FIVE STAR BANK




By: James T. Rudgers

Name: James T. Rudgers

Title: E.V.P.




Schedule 3.6(a)




to

TRUST COMPANY AGREEMENT AND PLAN OF MERGER

The Canandaigua National Bank and Trust Company

and

Five Star Bank














1. Approval by the Charities Bureau of the New York Attorney General’s Office.



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	Schedule 3.10 (a)







	 
	NONE

	 







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	Schedule 3.10 (b)	 	 	 	 	 	 
	 	 	 	 	Termination Date of	 	 
	Employee Name	 	Type of Arrangement	 	Arrangement	 	Extension Term
	Graham, Brandi

	 	Stay Bonus
	 	3/31/2006
	 	180 days
	 
	 	 	 	 	 	 
	Kasprzyk, Nicole

	 	Stay Bonus
	 	3/31/2006
	 	180 days
	 
	 	 	 	 	 	 
	McKenna, Kevin

	 	Stay Bonus
	 	3/31/2006
	 	180 days
	 
	 	 	 	 	 	 
	Tucker, Matthew

	 	Stay Bonus
	 	3/31/2006
	 	180 days
	 
	 	 	 	 	 	 
	Wells, Robert

	 	Stay Bonus
	 	3/31/2006
	 	180 days
	 
	 	 	 	 	 	 






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Schedule 4.3(a)




to

TRUST COMPANY AGREEMENT AND PLAN OF MERGER

The Canandaigua National Bank and Trust Company

and

Five Star Bank














None.




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