EXHIBIT 2.1
PURCHASE AND ASSUMPTION AGREEMENT
Between
SECURITY BANK AND TRUST COMPANY OF ALBANY
and
MERCHANTS & FARMERS BANK
Execution Copy Dated
10/29/01
PURCHASE AND ASSUMPTION AGREEMENT
Page
ARTICLE I TRANSFER OF ASSETS AND LIABILITIES 1
Section 1.1. Transferred Assets 1
Section 1.2. Purchase Price 2
Section 1.3. Deposit Liabilities 4
Section 1.4. Loans Transferred 6
Section 1.5. Safe Deposit Business 8
Section 1.6. Employee Matters 8
Section 1.7. Records and Data Processing 10
Section 1.8. Security 10
Section 1.9. Taxes and Fees; Proration of Certain Expenses 10
Section 1.10. Real Property 11
Section 1.11. Form 8594 13
ARTICLE II CLOSING AND EFFECTIVE TIME 13
Section 2.1. Effective Time 13
Section 2.2. Closing 13
Section 2.3. Post-Closing Adjustments 16
ARTICLE III INDEMNIFICATION 17
Section 3.1. Seller's Indemnification of Purchaser 17
Section 3.2. Purchaser's Indemnification of Seller 17
Section 3.3. Claims for Indemnity 17
Section 3.4. Limitations on Indemnification 18
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF SELLER 18
Section 4.1. Corporation Organization 18
Section 4.2. No Violation 19
Section 4.3. Corporate Authority 19
Section 4.4. Enforceable Agreement 19
Section 4.5. No Brokers 19
Section 4.6. Personal Property 19
Section 4.7. Real Property 20
Section 4.8. Condition of Property 21
Section 4.9. Loans 21
Section 4.10. Deposit Liabilities 21
Section 4.11. Obligations to Employees 22
Section 4.12. No Suits or Proceedings 22
Section 4.13. No Liabilities 22
Section 4.14. True Statement 22
Section 4.15. Financial Data 22
Section 4.17. Limitation of Representations and Warranties 22
ARTICLE V REPRESENTATIONS AND WARRANTIES OF PURCHASER 23
Section 5.1. Corporate Organization 23
Section 5.2. No Violation 23
Section 5.3. Corporate Authority 23
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Section 5.4. Enforceable Agreement 23
Section 5.5. No Brokers 24
ARTICLE VI OBLIGATIONS OF PARTIES PRIOR TO AND AFTER EFFECTIVE TIME 24
Section 6.1. Full Access 24
Section 6.2. Delivery of Magnetic Media Records 24
Section 6.3. Data Processing 25
Section 6.4. Application for Approval to Effect Purchase of
Assets and Assumption of Liabilities 25
Section 6.5. Conduct of Business; Maintenance of Properties 25
Section 6.6. No Solicitation by Seller 26
Section 6.7. Restrictions on New Offices 27
Section 6.8. Further Actions 27
Section 6.9. Fees and Expenses 27
Section 6.10. Breaches with Third Parties 27
Section 6.11. Insurance 27
Section 6.12. Public Announcements 27
Section 6.13. Tax Reporting 28
Section 6.14. Employee Information 28
Section 6.15. Transition Period 28
ARTICLE VII CONDITIONS TO PURCHASER'S OBLIGATIONS 28
Section 7.1. Representations and Warranties True 28
Section 7.2. Obligations Performed 28
Section 7.3. No Adverse Litigation 29
Section 7.4. Regulatory Approval 29
ARTICLE VIII CONDITIONS TO SELLER'S OBLIGATIONS 29
Section 8.1. Representations and Warranties True 29
Section 8.2. Obligations Performed 29
Section 8.3. No Adverse Litigation 29
ARTICLE IX TERMINATION 30
Section 9.1. Methods of Termination 30
Section 9.2. Procedure Upon Termination 31
Section 9.3. Payment of Expenses 32
ARTICLE X MISCELLANEOUS PROVISIONS 32
Section 10.1. Amendment and Modification 32
Section 10.2. Waiver of Extension 32
Section 10.3. Assignment 32
Section 10.4. Confidentiality 32
Section 10.5. Addresses for Notices, Etc. 33
Section 10.6. Counterparts 34
Section 10.7. Headings 34
Section 10.8. Governing Law 34
Section 10.9. Sole Agreement 34
Section 10.10. Severability 34
Section 10.11. Parties in Interest 34
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PURCHASE AND ASSUMPTION AGREEMENT
THIS AGREEMENT, dated as of October 29, 2001, by and between SECURITY
BANK AND TRUST COMPANY OF ALBANY, a banking corporation chartered under the laws
of the State of Georgia having its principal offices in Albany, Georgia
("Seller"), and MERCHANTS & FARMERS BANK, a banking corporation chartered under
the laws of the State of Georgia having its principal offices in Donalsonville,
Georgia ("Purchaser"):
WITNESSETH:
WHEREAS, Seller wishes to divest, upon the terms and conditions set
forth herein, certain assets and certain deposit and other liabilities of its
branch office located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
(the "Banking Center");
WHEREAS, Seller owns, or will own at the Effective Time (as defined in
Section 2.1 below), all real estate and improvements on the real estate at the
Banking Center and the other assets associated with the Banking Center as
described in Section 1.1(a); and
WHEREAS, Purchaser wishes to buy such assets and assume such
liabilities upon the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and mutual agreements
hereinafter set forth, Seller and Purchaser agree as follows:
ARTICLE I
TRANSFER OF ASSETS AND LIABILITIES
Section 1.1. Transferred Assets
(a) As of the Effective Time (as defined in Section 2.1 below) and upon
the terms and conditions set forth herein, Seller will sell, assign,
transfer, convey and deliver to Purchaser, and Purchaser will purchase
from Seller, all of the following assets associated with the Banking
Center and identified in this Agreement and the Exhibits hereto, and
not otherwise excluded from sale pursuant to the provisions of
Subsection 1.1 (b) below:
(1) subject to Section 1.10 hereof, all right, title and interest of
Seller in and to all real estate and improvements thereon at the
Banking Center, as more particularly described on
Exhibit 1.1(a)(1) (the "Real Property"), together with all rights
and appurtenances pertaining thereto;
(2) except as provided in Section 1. l(b), all right, title and
interest of Seller in the furniture, fixtures, leasehold
improvements, equipment, permits, licenses, warranties,
certificates and other tangible personal property located on or
affixed to the Real Property or related to the business at the
Banking Center (the "Personal Property");
(3) all safe deposit contracts and leases for the safe deposit boxes
located at the Banking Center as of the Effective Time (the
"Safe Deposit Contracts");
(4) all loans transferred pursuant to Section 1.4; and
(5) all coins and currency located at the Banking Center as of the
Effective Time (the "Coins and Currency").
(b) Excluded from the assets, properties and rights being transferred,
conveyed and assigned to Purchaser under this Agreement are the assets
listed on Exhibit 1.1(b) hereto, which list may be amended by the
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mutual agreement of Seller and Purchaser, debit and credit card
merchant services agreements related to customers of the Banking
Center, Seller's rights in and to the name "Security Bank and Trust
Company of Albany" and any of Seller's corporate logos, trademarks,
trade names, signs, paper stock, forms and other supplies containing
any such logos, trademarks or trade names (the "Excluded Assets").
Seller shall coordinate with Purchaser to remove the Excluded Assets
from the Banking Center on or prior to the Effective Time. Seller
shall remove the Excluded Assets at its own cost and shall repair any
damage to the Real Property and Personal Property caused by the
removal of the Excluded Assets.
Section 1.2 Purchase Price
(a) As consideration for the purchase of the Banking Center, Purchaser
shall pay Seller a purchase price equal to the sum of the following:
(1) The Fair Market Value (as defined in Section 1.2(d) hereof) for
the Real Property;
(2) An amount to be agreed upon by Purchaser and Seller prior to the
Effective Time for the Personal Property;
(3) A premium for the Deposit Liabilities (as defined in
Section 1.3(a) hereof), franchise value, and goodwill related to
the Banking Center equal to 8.6% of the Net Book Value of the
Deposit Liabilities;
(4) The Net Book Value (as defined in Section 1.2(e) hereof),
including accrued interest, but excluding any loan loss reserve
or general reserve for the Loans as set forth in Section 1.4
hereof; and
(5) The face amount of the Coins and Currency.
(b) In addition, Purchaser shall assume, as of the Effective Time, all of
the duties, obligations and liabilities of Seller relating to the Safe
Deposit Contracts and the
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Deposit Liabilities (including all accrued interest relating thereto);
provided, that any cash items paid by Seller and not cleared prior to
the Effective Time shall be the responsibility of Seller, subject to
the terms of Section 1.3 below.
(c) Attached hereto as part of Exhibit 4.16 is a Balance Sheet dated
September 30, 2001, of the Banking Center (the "Balance Sheet")
showing the assets to be sold and the liabilities to be assumed based
on the Seller's book values as of September 30, 2001, using generally
accepted accounting principles consistently applied ("GAAP"). Seller
shall prepare a balance sheet (the "Pre-Closing Balance Sheet"), in
accordance with GAAP, as of a date not earlier than 30 calendar days
prior to the Effective Time anticipated by the parties (the
"Pre-Closing Balance Sheet Date") reflecting the assets to be sold and
assigned hereunder and the liabilities to be transferred and assumed
hereunder all based on Seller's book value of such assets and
liabilities except for the Real Property, which shall be based on its
Fair Market Value, as defined in Section 1.2(d) hereof. The
Pre-Closing Balance Sheet shall be based upon the Balance Sheet with
any additions, deletions and adjustments following the date of the
Balance Sheet to be made in accordance with the terms herewith.
Purchaser shall have ten (10) days prior to the Effective Time to
review the Pre-Closing Balance Sheet. If Purchaser reasonably
disputes any items set forth thereon, then the parties shall use
their best efforts to mutually agree on a method to resolve any
disputed items. When the Pre-Closing Balance Sheet is reasonably
acceptable to Purchaser, then Seller agrees to pay to Purchaser at the
Closing (as defined in Section 2.1 hereof), in immediately available
funds, the excess amount, if any, of the amount of Deposit Liabilities
assumed by Purchaser pursuant to subsection (b) above as reflected by
the Pre-Closing Balance Sheet over the aggregate purchase price
computed in accordance with subsection (a) above, as reflected by the
Pre-Closing Balance Sheet. Purchaser agrees to pay Seller at the
Closing, in immediately available funds, the excess, if any, of the
aggregate purchase price computed in accordance with subsection (a)
above, as reflected by the Pre-Closing Balance Sheet over the amount
of Deposit Liabilities assumed by Purchaser pursuant to subsection (b)
above as reflected by the Pre-Closing Balance Sheet. Amounts paid at
Closing shall be subject to subsequent adjustment based on the
Post-Closing Balance Sheet (as defined in Section 2.3 hereof).
(d) For purposes of this Agreement, "Fair Market Value" means the fair
market value, as of a date not earlier than 60 calendar days prior to
the Effective Time, determined by an independent, certified,
commercial real estate appraiser to be selected by the Seller, at
Seller's expense, and reasonably acceptable to Purchaser.
(e) For purposes of this Agreement, "Net Book Value" means the value as of
the Effective Time, determined from the Post-Closing Balance Sheet, of
the Seller's book value of the assets being purchased or liabilities
being assumed hereunder; provided, however, that such value shall not
include the loan loss reserve attributable to any Loan (as defined in
Section 1.4 hereof) or any general reserve.
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Section 1.3. Deposit Liabilities
(a) "Deposit Liabilities" shall mean all of Seller's duties, obligations
and liabilities relating to the deposit accounts located at the
Banking Center as of the Effective Time excluding the deposit
accounts described on Exhibit 1.3(a).
(b) Except for those liabilities and obligations specifically assumed by
Purchaser under Section 1.2(b) above, Purchaser is not assuming any
other liabilities or obligations. Liabilities not assumed include, but
are not limited to, the following:
(1) Seller's official checks, interest checks, CD interest checks and
accounts payable checks issued prior to closing, consignments of
U.S. Government "E" and "EE" bonds and any and all traveler's
checks;
(2) Liabilities or obligations with respect to any litigation, suits,
claims, demands or governmental proceedings arising, commenced or
made known to Seller prior to Closing and related to the Banking
Center;
(3) Deposit accounts associated with lines of credit where the line
of credit is excluded in accordance with Section 1.4 (b);
(4) Deposit accounts associated with qualified retirement plans where
Seller is the trustee of such plan or the sponsor of a prototype
plan used by such plan;
(5) Self-directed individual retirement accounts, if any; and
(6) Liabilities associated with employment or employee benefit
obligations accruing in favor of any employee of the Banking
Center prior to the Effective Time.
(c) Seller does not represent or warrant that any deposit customers whose
accounts are assumed by Purchaser will become or continue to be
customers of Purchaser after the Effective Time.
(d) Purchaser agrees to pay in accordance with law and customary banking
practices all properly drawn and presented checks, drafts and
withdrawal orders presented to Purchaser by mail, over the counter or
through the check clearing system of the banking industry, by
depositors of the accounts assumed, whether drawn on the checks,
withdrawal or draft forms provided by Seller or by Purchaser, and in
all other respects to discharge, in the usual course of the banking
business, the duties and obligations of Seller with respect to the
balances due and owing to the depositors whose accounts are assumed by
Purchaser.
(e) If, after the Effective Time, any depositor, instead of accepting the
obligation of Purchaser to pay the Deposit Liabilities assumed, shall
demand payment from
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Seller for all or any part of any such assumed Deposit Liabilities,
Seller shall forward to Purchaser any paper checks, drafts or
withdrawal orders presented to it relating thereto, and Seller shall
not be liable or responsible for making any such payment; provided,
that if Seller shall pay any properly drawn and executed check, draft
or order, Purchaser agrees to reimburse Seller for any such payments,
and Seller shall not be deemed to have made any representations or
warranties to Purchaser with respect to any such checks, drafts or
withdrawal orders and any such representations or warranties implied
by law are hereby expressly disclaimed; provided, however, that Seller
shall seek reimbursement for any breach of warranties or
representations from a collecting bank if requested to do so by
Purchaser and shall remit any proceeds obtained from any such claim to
Purchaser. Seller and Purchaser shall make arrangements to provide for
the daily settlement with immediately available funds by Purchaser of
checks, drafts, withdrawal orders, returns and other items presented
to and properly paid by Seller within 60 calendar days after the
Effective Time and drawn on or chargeable to accounts that have been
assumed by Purchaser; provided, however, that Seller shall be held
harmless and indemnified by Purchaser for acting in accordance with
such arrangements.
(f) Purchaser agrees, at its cost and expense, (1) to assign new account
numbers to depositors of assumed accounts, after the Effective Time,
(2) to notify such depositors, on or before the Effective Time, in a
form and on a date mutually acceptable to Seller and Purchaser, of
Purchaser's assumption of Deposit Liabilities, and (3) to furnish such
depositors, after the Effective Time, with checks on the forms of
Purchaser and with instructions to utilize Purchaser's checks and to
destroy unused check, draft and withdrawal order forms of Seller. (If
Purchaser so elects, Purchaser may offer to buy from such depositors
their unused Seller check, draft and withdrawal order forms.) In
addition, subsequent to regulatory approval, Seller will notify its
affected customers by letter of the pending assignment of Seller's
deposit accounts to Purchaser and will encourage such customers to
maintain their deposit relationships with Purchaser, which notice
shall be at Seller's cost and expense and shall be in a form mutually
agreeable to Seller and Purchaser.
(g) Purchaser agrees to pay promptly to Seller an amount equivalent to the
amount of any checks, drafts or withdrawal orders credited to an
assumed account as of the Effective Time that are returned to Seller
after the Effective Time.
(h) As of the Effective Time, Purchaser will assume and discharge Seller's
duties and obligations in accordance with the terms and conditions and
laws, rules and regulations that apply to the certificates, accounts
and other Deposit Liabilities assumed under this Agreement.
(i) As of the Effective Time, Seller shall assign and transfer to
Purchaser and Purchaser will maintain and safeguard in accordance with
applicable law and sound banking practices all account documents
including originals, deposit
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contracts, signature cards, deposit slips, canceled items and other
records related to the Deposit Liabilities assumed under this
Agreement, subject to Seller's right of access to such records as
provided in this Agreement.
(j) Seller will render a final statement to each depositor of an account
assumed under this Agreement as to transactions occurring through the
Effective Time and will comply with all laws, rules and regulations
regarding tax reporting of transactions of such accounts through the
Effective Time; provided, however, that Seller shall not be obligated
to render a final statement on any account not ordinarily receiving
periodic statements in the ordinary course of Seller's business.
Seller will be entitled to impose normal fees and service charges on a
per-item basis, but Seller will not impose periodic fees or blanket
charges in connection with such final statements.
(k) As of the Effective Time, Purchaser, at its expense, will notify all
Automated Clearing House ("ACH") originators of the transfers and
assumptions made pursuant to this Agreement; provided, however, that
Seller may, at its option, notify all such originators itself (on
behalf of Purchaser) also at the expense of Purchaser. For a period of
60 calendar days beginning on the Effective Time, Seller will honor
all ACH items related to accounts assumed under this Agreement which
are mistakenly routed or presented to Seller. Seller will make no
charge to Purchaser for honoring such items, and will electronically
transmit such ACH data to Purchaser. If Purchaser cannot receive an
electronic transmission, Seller will make available to Purchaser at
Seller's operations center receiving items from the ACH tapes
containing such ACH data. Items mistakenly routed or presented after
the 60-day period should be returned to the presenting party.
(l) As of the Effective Time, Purchaser agrees to use its reasonable best
efforts to collect from Purchaser's customers amounts equal to any
Visa or MasterCard chargebacks under the MasterCard and Visa Merchant
Agreements between Seller and its customers in amounts equal to any
deposit items returned to Seller after the Effective Time which were
honored by Seller prior to the Effective Time and remit such amounts
so collected to Seller.
Section 1.4 Loans Transferred
(a) Seller will transfer to Purchaser as of the Effective Time, subject to
the terms and conditions of this Agreement, all of Seller's right,
title and interest in (including collateral relating thereto) loans
maintained, serviced and listed in Seller's general ledger as loans of
the Banking Center (collectively, the "Loans"); provided, however, the
Loans shall not include any loans described in subsection (b) below.
Such Loans (as well as any security interests related thereto) shall
be transferred by means of a blanket (collective) assignment and not
individually (except as may be otherwise required by law). Purchaser
shall inform Seller not less than 15 calendar days prior to the
Effective Time of any case in which individual assignments will be
required by law.
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(b) Notwithstanding the provisions of subsection (a) above, the Loans
shall not include the $2,300,000 accounts receivable line of credit to
▇▇▇▇▇▇ County Hospital (loan number ______________).
(c) Seller and Purchaser agree that Purchaser will become the beneficiary
of credit life insurance written on direct consumer installment loans,
and coverage will continue to be the obligation of the current insurer
after the Effective Time and for the duration of such insurance as
provided under the terms of the policy or certificate. If Purchaser
becomes the beneficiary of credit life insurance written on direct
consumer installment loans, Seller and Purchaser agree to cooperate in
good faith to develop a mutually satisfactory method by which the
current insurer will make rebate payments to and satisfy claims of the
holders of such certificates of insurance after the Effective Time.
The parties' obligations in this section are subject to any
restrictions contained in existing insurance contracts as well as
applicable laws and regulations.
(d) In connection with the transfer of any loans requiring notice to the
borrower, Purchaser and Seller agree to comply with all notice and
reporting requirements of the loan documents or of any law or
regulation.
(e) All Loans transferred to Purchaser shall be valued at their Net Book
Value, such value to include accrued interest but exclude any loan
loss reserve or general reserve related thereto.
(f) All Loans will be transferred without recourse and without any
warranties or representations as to their collectibility or the
creditworthiness of any of the obligors of such Loans.
(g) Purchaser will at its expense issue new coupon books for payment of
Loans for which Seller provides coupon books with instructions to
utilize Purchaser's coupons and to destroy coupons furnished by
Seller.
(h) After the Effective Time, Seller will promptly forward to Purchaser
loan payments received by Seller in connection with the Loans.
(i) As of the Effective Time, Seller shall transfer and assign all files,
documents and records related to the Loans to Purchaser, including,
but not limited to, the original promissory notes and security
agreements, and Purchaser will be responsible for maintaining and
safeguarding all such materials in accordance with applicable law and
sound banking practices.
(j) If the balance due on any Loan purchased pursuant to this Section 1.4
has been reduced by Seller as a result of a payment by check received
prior to the Effective
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Time, which item is returned after the Effective Time, the asset value
represented by the Loan transferred shall be correspondingly increased
and an amount in cash equal to such increase shall be paid by
Purchaser to Seller promptly upon demand.
(k) Seller shall grant to Purchaser as of the Effective Time a limited
power of attorney, in substantially the form attached hereto as
Exhibit 1.4(k) (the "Power of Attorney").
Section 1.5 Safe Deposit Business
(a) As of the Effective Time, Purchaser will assume and discharge Seller's
obligations with respect to the safe deposit box business at the
Banking Center in accordance with the terms and conditions of
contracts or rental agreements related to such business, and Purchaser
will maintain all facilities necessary for the use of such safe
deposit boxes by persons entitled to use them.
(b) As of the Effective Time, Seller shall transfer and assign the
records, including original documents, related to such safe deposit
box business to Purchaser, and Purchaser shall maintain and safeguard
all such records and be responsible for granting access to and
protecting the contents of safe deposit boxes at the Banking Center.
Section 1.6 Employee Matters
(a) Purchaser agrees to employ, on an "at will" basis, all of the
employees employed by Seller at the Banking Center as of the Effective
Time (the "Employees"), but Purchaser does not hereby assume any
liability of Seller to the Employees.
Subject to the limitation set forth below, Purchaser shall be allowed
to meet with the Employees after the date of this Agreement to
communicate its transition plan to the Employees. (This meeting is
currently expected to take place on October 29, 2001.) Purchaser shall
be allowed reasonable access to interview the Employees following the
date of this Agreement.
Notwithstanding anything in this Section 1.6(a) to the contrary,
Seller and Purchaser shall jointly coordinate all communications with
the Employees regarding the transaction contemplated hereby between
the date hereof through the Effective Time.
Employees shall receive full credit for their prior service with
Seller under Purchaser's benefit plans and policies, including its
vacation and sick leave policies. As of the Effective Time, the
Employees and their dependents, if any, previously covered under
Seller's health insurance plan shall be covered under Purchaser's
health insurance plan without being subject to any pre-existing
condition limitations or exclusions except those excluded under
Seller's health insurance plan. Employees shall not be required to
satisfy the deductible and
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employee payments required by Purchaser's comprehensive medical and/or
dental plans for the calendar year of the Effective Time to the extent
of amounts previously credited during such calendar year under
comparable plans maintained by Seller. Employees shall receive full
credit for their prior service with Seller for purposes of determining
their participation eligibility and vesting rights under Purchaser's
qualified retirement plans.
Seller shall cause the Synovus qualified plans to be amended effective
as of the date of Closing to fully (100%) vest the accrued benefits
thereunder of all employees of the Seller on the date of Closing who
have become participants in such plans by that time and who terminate
their employment with the Seller as a result of the transactions
contemplated by this Agreement (the "Affected Participants"). Seller
shall cause the Synovus qualified plans to pay the Affected
Participants their accrued benefits under such plans when and as
provided in such plans, and for purposes of determining when such
benefits become payable, the Affected Participants shall be deemed to
have separated from service on the date of Closing. Purchaser shall
not be obligated for, and Seller shall indemnify and hold Purchaser
harmless from and against, all amounts owed or claimed to be owed to
the Affected Participants under such Synovus qualified plans.
(b) Seller makes no representations or warranties about whether any of the
Employees will remain employed at the Banking Center after the
Effective Time. Seller will use its best efforts to maintain the
Employees as employees of Seller at the Banking Center until the
Effective Time. Any Employee whose employment shall be terminated for
any reason prior to the Effective Time or who shall elect not to be an
employee of Purchaser shall be dealt with by Seller in its sole and
absolute discretion. Seller agrees that, for a period of 12 months
after the Effective Time, it will not solicit for employment any
Employee who remains employed by Purchaser.
(c) Purchaser agrees for a period of 12 months after the Effective Time it
will not, without cause, terminate a Transferred Employee without
paying to such Employee a severance benefit no less than the
applicable severance benefit set forth in Exhibit 1.6(c); provided,
that if a Transferred Employee is terminated for cause then Purchaser
shall have no obligation to pay the employee any severance benefit.
"For cause" as used herein shall mean a termination for any of the
following reasons:
(1) failure to follow reasonable instructions from the employee's
supervisor;
(2) conviction of or a plea of nolo contendere to a crime involving
breach of trust, moral turpitude, theft or fraud or any felony;
(3) the failure to perform the duties assigned to the employee; or
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(4) willful commission of (A) acts involving dishonesty or fraud with
respect to the Purchaser or (B) acts causing harm to the
Purchaser.
Section 1.7 Records and Data Processing
(a) As of the Effective Time, Purchaser shall become responsible for
maintaining the files, documents and records referred to in this
Agreement. Purchaser will preserve and safekeep them as required by
applicable law and sound banking practice for the joint benefit of
Seller and Purchaser. After the Effective Time, Purchaser will permit
Seller and its representatives, for reasonable cause, at Purchaser's
business hours at the Banking Center and upon reasonable notice and at
Seller's expense, to examine, inspect, copy and reproduce any such
files, documents or records as Seller deems reasonably necessary.
(b) As of the Effective Time, Seller will permit Purchaser and its
representatives, for reasonable cause, at reasonable times and upon
reasonable notice and at Purchaser's expense, to examine, inspect,
copy and reproduce files, documents or records retained by Seller
regarding the assets and liabilities transferred under this Agreement
as Purchaser deems reasonably necessary.
(c) It is understood that certain of Seller's and Purchaser's records may
be available only in the form of photocopies, film copies or other
non-original and non-paper media.
Section 1.8 Security
As of the Effective Time, Purchaser shall be solely responsible for the
security of and insurance on all persons and property located in or about the
Banking Center.
Section 1.9. Taxes and Fees; Proration of Certain Expenses
Purchaser shall be responsible for the payment of all fees and taxes
related to this transaction; except that Purchaser shall not be responsible for,
or have any liability with respect to transfer tax on the Limited Warranty Deed
(which Seller shall pay at closing), the cost of obtaining and recording any
documents to release liens encumbering the Real Property and Personal Property,
the costs of recording the Limited Warranty Deed or taxes on any income to
Seller arising out of this transaction and Seller agrees that it shall pay, or
represents that it has paid, in a timely manner any and all such income taxes.
Purchaser shall not be responsible for any income tax liability of Seller
arising from the business or operations of the Banking Center before the
Effective Time, and Seller shall not be responsible for any tax liabilities of
Purchaser arising from the business or operations of the Banking Center after
the Effective Time. Real property taxes, personal property taxes, rent,
salaries, deposit insurance premiums, other ordinary operating expenses of the
Banking Center and other expenses related to the liabilities assumed or assets
purchased hereunder shall be prorated between the parties as of the Effective
Time. To the extent any such item has been prepaid by Seller for a period
extending beyond the Effective Time, there shall be a proportionate monetary
adjustment in favor of Seller.
In the event that tax bills for the current year's taxes are not
available as of the Effective Time, taxes shall be prorated based upon the tax
bills for the previous year. Seller and Purchaser hereby agree that the parties
shall, if necessary, re-prorate the taxes after Closing when actual tax bills
for the current year are available. The provision of this paragraph shall
survive the Closing.
Section 1.10. Real Property
(a) Title Matters.
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(1) Seller agrees to deliver to Purchaser within three (3) business
days of the date of this Agreement copies of any environmental
audits and all title information in possession of Seller
pertaining to the Real Property, including, but not limited to,
the deed vesting title to the Real Property in Seller, title
insurance policies (together with true, complete and legible
copies of all documents referred therein), attorneys' opinions on
title, zoning letters and other zoning information, surveys,
covenants, deeds, notes and mortgages and easements relating to
the Real Property. Such delivery shall constitute no warranty by
Seller as to the accuracy or completeness thereof or that
Purchaser is entitled to rely thereon.
(2) Purchaser agrees to notify Seller in writing within 45 calendar
days after the date of this Agreement of any objectionable title
matters or defects shown on a survey of the Real Property (which
Purchaser at its own expense may obtain) related to the Real
Property to which Purchaser objects (the "Title Defects").
Purchaser agrees that Title Defects shall not include real
property taxes not yet due and payable and easements,
restrictions, tenancies, and rights of way upon which the
improvements do not encroach or which do not interfere with the
use of the Real Property as a Banking Center. Seller shall make a
good faith effort to correct any such Title Defect to Purchaser's
reasonable satisfaction at least 10 calendar days prior to
Closing; provided, however, that Seller shall not be obligated to
bring any lawsuit or make any payments of money (except to pay
liens, deeds to secure debt, mortgages, deeds of trust, or other
monetary encumbrances that Seller does not dispute in good faith)
to cure a Title Defect. If Seller is unable or unwilling to cure
any such Title Defects to Purchaser's reasonable satisfaction,
Purchaser shall have the option either to terminate this
Agreement or to receive title in its then existing condition.
Upon termination of this Agreement pursuant to this Section 1.10,
neither party shall have any further liability to the other party
under this Agreement.
(3) Purchaser shall have the right to update title matters at Closing
for any changes which may have arisen after the date of
Purchaser's original title search. If such update indicates that
any Title Defects have been placed of record since the date of
Purchaser's original title search, and Purchaser
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objects thereto, then Seller may elect to delay the Closing with
respect to the affected Real Property for up to 30 calendar days
while Seller makes a good faith effort to cure any such Title
Defect to Purchaser's reasonable satisfaction; provided that
Seller shall not be obligated to bring any lawsuit or make any
payments of money (except to pay liens, deeds to secure debt,
mortgages, deeds of trust or other monetary encumbrance that
Seller does not dispute in good faith) to cure a Title Defect. If
Seller is unable or unwilling to cure any such Title Defect
within such 30 day period, Purchaser shall have the option to
receive title in the then existing condition or to terminate this
Agreement, in which event neither party shall have any further
liability to the other party under this Agreement.
(b) Environmental Matters.
---------------------
Seller agrees to deliver to Purchaser within three (3) business days
of the date of this Agreement all environmental and soil reports
relating to the Real Property. Purchaser shall have the right to
conduct such investigation of environmental matters with respect to
the Real Property as it may require and shall report the results of
any such investigation, together with any violation of applicable
environmental law which impacts the Real Property or the use thereof
as a banking center which its investigation may reveal, to Seller no
later than 45 calendar days after the date of this Agreement;
provided, however, that without the prior written consent of Seller,
Purchaser shall not conduct any subsurface soil testing or ground
water sampling or monitoring or undertake any other investigation
which may require a permit or license from, or the reporting of the
investigation or the results thereof to, a local or state
environmental regulatory authority or the United States Environmental
Protection Agency. If Purchaser's environmental investigation reveals
any contamination, spill of Hazardous Substances (as hereinafter
defined) or any violation of applicable environmental law which
impacts the Real Property or the use thereof as a banking center,
Seller shall have the right, but not the obligation, to cure any such
contamination, spill or violation of law which is discovered by
Purchaser's investigation. If Seller either refuses to give Purchaser
written consent to conduct subsurface soil testing or ground-water
testing or sampling or refuses to cure any contamination, spill of
Hazardous Substances or any violation of applicable environmental law
relating to the Real Property or the use thereof as a banking center
(or cannot cure such violation within ten (10) calendar days prior to
Closing), Purchaser shall have the option either to purchase the Real
Property in its then existing condition, subject to a negotiated price
reduction, or to terminate this Agreement, in which event neither
party shall have any further liability to the other under this
Agreement. Provided, however, Purchaser shall not have the right to
terminate this Agreement in the event Seller refuses to cure any
contamination, spill of Hazardous Substance or violation of applicable
environmental law relating to the Real Property if such contamination,
spill or violation of law will not have a material adverse effect on
the business operations of the Banking Center.
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(c) Casualty Loss.
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If buildings or other improvements of the Banking Center are destroyed
or materially damaged by fire or other casualty prior to the Effective
Time and shall not be substantially repaired or replaced, the
Purchaser shall have the right, exercisable by it not later than the
earlier of the 20th calendar day after the event giving rise to such
right or the Effective Time (1) to terminate this Agreement without
liability to Seller by giving Seller written notice of such election
or (2) to accept such improvements or land as destroyed or damaged
together with the right to receive any insurance proceeds and to
consummate this Agreement in accordance with its terms; provided,
however, that any such proceeds in excess of the cost of repair or
replacement shall be remitted to Seller.
Section 1.11. Form 8594
Seller and Purchaser, or its parent holding company, agree to complete
IRS Form 8594 in accordance with Section 1060 of the Internal Revenue
Code of 1986, as amended, and agree to provide the other party with a
copy of such Form prior to its filing with the Internal Revenue
Service.
ARTICLE II
CLOSING AND EFFECTIVE TIME
Section 2.1. Effective Time
The purchase of assets and assumption of liabilities provided for in
this Agreement shall occur at a closing (the "Closing") to be held at
the offices of Seller in Colquitt, Georgia, at 10:00 a.m. local time
within 31 calendar days following the date of all approvals by
regulatory agencies and after all statutory waiting periods have
expired, or at such other place, time or date on which the parties
shall mutually agree. The effective time (the "Effective Time") shall
be 5:00 p.m., local time, on the day on which the Closing occurs. It
is understood that the Closing shall occur on a Friday, and on or
before December 21, 2001, if possible. It is also understood that the
Closing shall not be held after January 31, 2002.
Section 2.2. Closing
(a) All actions taken and documents delivered at the Closing shall be
deemed to have been taken and executed simultaneously, and no
action shall be deemed taken nor any document delivered until all
have been taken and delivered.
(b) At the Closing, subject to all the terms and conditions of this
Agreement, Seller shall deliver to Purchaser or, in the case of
subsections (b)(5), (6), (7) and (9), make reasonably available
to Purchaser:
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(1) A limited warranty deed(s) with transfer taxes and recording
fees paid transferring good and marketable title to the Real
Property to Purchaser that (i) uses a legal description
based on the deed vesting title to the Real Property in
Seller (at Purchaser's request, Seller shall also deliver a
quitclaim deed with a legal description based on Purchaser's
survey and (ii) will be insured in an owner's policy issued
by Chicago Title Insurance Company or another title
insurance company at normal rates with standard exceptions
deleted (provided Seller shall not be required to provide an
updated survey of the Real Property);
(2) A ▇▇▇▇ of Sale, in substantially the form attached hereto as
Exhibit 2.2(b)(2) (the "▇▇▇▇ of Sale"), transferring to
Purchaser all of Seller's interest in the Personal Property
and in the Loans;
(3) An Assignment and Assumption Agreement, in substantially the
form attached hereto as Exhibit 2.2(b)(3) (the "Assignment
and Assumption Agreement"), assigning Seller's interest in
the Safe Deposit Contracts and the Deposit Liabilities;
(4) Consents from third persons that are required to effect the
assignments set forth in the Assignment and Assumption
Agreement, including, but not limited to, the lessors under
any leases relating to the Banking Center (to the extent
required by such leases);
(5) Seller's keys to the safe deposit boxes and Seller's records
related to the safe deposit box business at the Banking
Center, including, but not limited to, the original safe
deposit box rental agreements;
(6) Seller's files and records related to the Loans including,
but not limited to, the original promissory notes, security
agreements and other loan documents;
(7) Seller's records related to the deposit accounts assumed by
Purchaser, including, but not limited to, the original
deposit contracts and signature cards;
(8) Immediately available funds in the net amount shown as owing
to Purchaser by Seller on the Closing Statement, if any;
(9) The Coins and Currency;
(10) Such of the other items of Personal Property to be purchased
as shall be capable of physical delivery;
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(11) A certificate of a proper officer of Seller, dated as of the
date of Closing, certifying to the fulfillment of all
conditions which are the obligation of Seller and that all
of the representations and warranties of Seller set forth in
this Agreement remain true and correct in all material
respects as of the Effective Time;
(12) A certified copy of a resolution of the Board of Directors
of Seller, or its Executive Committee, approving the sale of
the Banking Center contemplated hereby;
(13) Such certificates and other documents as Purchaser and its
counsel may reasonably require to evidence the receipt by
Seller of all necessary corporate and regulatory
authorizations and approvals for the consummation of the
transactions provided for in this Agreement;
(14) A Closing Statement, substantially in the form attached
hereto as Exhibit 2.2(b)(14) (the "Closing Statement");
(15) An affidavit of Seller certifying that Seller is not a
"foreign person" as defined in the federal Foreign
Investment in Real Property Tax Act of 1980;
(16) The Power of Attorney;
(17) A title affidavit, substantially in the form attached hereto
as Exhibit 2.2(b)(17); and
(18) Possession of the Real Property and Personal Property.
It is understood that the items listed in subsections (b)(5) and
(9) shall be transferred after the Banking Center have closed for
business on the date of Closing and that the records listed in
subsections (b)(6) and (7) will be transferred as soon as
possible after the Closing, but in no event more than seven
calendar days after the Closing.
(c) At the Closing, subject to all the terms and conditions of this
Agreement, Purchaser shall deliver to Seller:
(1) The Assignment and Assumption Agreement;
(2) A certificate and receipt acknowledging the delivery and
receipt of possession of the property and records referred to in
this Agreement;
(3) Immediately available funds in the net amount shown as owing
to Seller by Purchaser on the Closing Statement, if any;
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(4) A certificate of a proper officer of Purchaser, dated as of the
date of Closing, certifying to the fulfillment of all conditions
which are the obligation of Purchaser and that all of the
representations and warranties of Purchaser set forth in this
Agreement remain true and correct in all material respects as of
the Effective Time;
(5) A certified copy of a resolution of the Board of Directors, or
its Executive Committee, of Purchaser approving the purchase of
the Banking Center contemplated hereby;
(6) Such certificates and other documents as Seller and its counsel
may reasonably require to evidence the receipt of Purchaser of
all necessary corporate and regulatory authorizations and
approvals for the consummation of the transactions provided for
in this Agreement; and
(7) The Closing Statement.
(d) All instruments, agreements and certificates described in this Section
2.2 shall be in form and substance reasonably satisfactory to the
parties' respective legal counsel.
Section 2.3. Post-Closing Adjustments
(a) Not later than ten (10) calendar days after the Effective Time (the
"Post-Closing Balance Sheet Delivery Date"), Seller shall deliver to
Purchaser a balance sheet dated as of the Effective Time and prepared
in accordance with GAAP reflecting the assets sold and assigned and
the liabilities transferred and assumed hereunder (the "Post-Closing
Balance Sheet"). Seller shall afford Purchaser and its accountants and
attorneys the opportunity to review all work papers and documentation
used by Seller in preparing the Post-Closing Balance Sheet. Within ten
(10) calendar days following the Post-Closing Balance Sheet Delivery
Date (the "Adjustment Payment Date"), Seller and Purchaser shall meet
at the offices of Seller in Colquitt, Georgia, to effect the transfer
of any funds as may be necessary to reflect agreed upon changes in
such assets and liabilities between the Pre-Closing Balance Sheet and
the Post-Closing Balance Sheet together with interest thereon computed
from the Effective Time to the Adjustment Payment Date at the
applicable Federal Funds Rate (as hereinafter defined).
(b) In the event that a dispute arises as to the appropriate amounts to be
paid to either party on the Adjustment Payment Date, each party shall
pay to the other on such Adjustment Payment Date all amounts other
than those as to which a dispute exists. The parties agree to use
their best efforts to mutually agree as to how to resolve any disputed
amount. Any disputed amounts retained by a party which are later found
to be due to the other party shall be paid to such other party
promptly upon resolution with interest thereon from the Adjustment
Payment Date to the date paid at the applicable Federal Funds Rate.
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(c) The Federal Funds Rate shall be the mean of the high and low rates
quoted for Federal Funds in the Money Rates Column of the Wall Street
Journal adjusted as such mean may increase or decrease during the
period between the Effective Time and the Adjustment Payment Date.
ARTICLE III
INDEMNIFICATION
Section 3.1. Seller's Indemnification of Purchaser
Seller shall indemnify, hold harmless and defend Purchaser from and
against any material breach by Seller of any representation, warranty, covenant
or agreement of Seller contained herein and all claims, losses, liabilities,
demands and obligations, including, but not limited to, reasonable attorneys'
fees and expenses, arising out of or related to any actions, suits or
proceedings relating to operations and transactions at the Banking Center
occurring prior to the Effective Time; and, except as otherwise provided in this
Agreement, Seller shall further indemnify, hold harmless and defend Purchaser
from and against all claims, losses, liabilities, demands and obligations,
including, but not limited to, reasonable attorneys' fees and expenses, real
estate taxes, intangibles and franchise taxes, sales and use taxes, social
security and unemployment taxes, all accounts payable and operating expenses
(including, but not limited to, salaries, rents and utility charges) incurred by
Seller prior to the Effective Time and which are claimed or demanded on or after
the Effective Time, or which arise out of any actions, suits or proceedings
commenced on or after the Effective Time and which relate to operations at the
Banking Center prior to the Effective Time.
Section 3.2. Purchaser's Indemnification of Seller
Purchaser shall indemnify, hold harmless and defend Seller from and
against any material breach by Purchaser of any representation, warranty,
covenant or agreement of Purchaser contained herein and all claims, losses,
liabilities, demands and obligations, including, but not limited to, reasonable
attorneys' fees and expenses, real estate taxes, intangibles and franchise
taxes, sales and use taxes, social security and unemployment taxes, all accounts
payable and operating expenses (including, but not limited to, salaries, rents
and utility charges), which Seller may receive, suffer or incur in connection
with operations and transactions at the Banking Center occurring after the
Effective Time and which relate to operations of Banking Center after the
Effective Time.
Section 3.3. Claims for Indemnity
(a) A claim for indemnity under Sections 3.1 or 3.2 of this Agreement may
be made by the claiming party at any time prior to 24 months after the
Effective Time by the giving of written notice thereof to the other
party. Such written notice shall set forth in reasonable detail the
basis upon which such claim for indemnity is made. In the event that
any such claim is made within such prescribed 24 month
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period, the indemnity relating to such claim shall survive until such
claim is resolved. Claims not made within such 24 month period shall
cease and no indemnity shall be made therefor.
(b) In the event that any person or entity not a party to this Agreement
shall make any demand or claim or file or threaten to file any
lawsuit, which demand, claim or lawsuit may result in any liability,
damage or loss to one party hereto of the kind for which such party is
entitled to indemnification pursuant to Sections 3.1 or 3.2 hereof,
then, after written notice is provided by the indemnified party to the
indemnifying party of such demand, claim or lawsuit, the indemnifying
party shall have the option, at its cost and expense, to retain
counsel for the indemnified party to defend any such demand, claim or
lawsuit. In the event that the indemnifying party shall fail to
respond within five calendar days after receipt of such notice of any
such demand, claim or lawsuit, then the indemnified party shall retain
counsel and conduct the defense of such demand, claim or lawsuit as it
may in its discretion deem proper, at the cost and expense of the
indemnifying party. In effecting the settlement of any such demand,
claim or lawsuit, an indemnified party shall act in good faith, shall
consult with the indemnifying party and shall enter into only such
settlement as the indemnifying party shall approve (the indemnifying
party's approval will be implied if it does not respond within ten
calendar days of its receipt of the notice of such settlement offer).
Section 3.4. Limitations on Indemnification
Notwithstanding anything to the contrary contained in this Article III,
no indemnification shall be required to be made by either party until the
aggregate amount of all such claims by a party exceeds $10,000. Once such
aggregate amount exceeds $10,000, such party shall thereupon be entitled to
indemnification for all amounts from the first dollar. IN ADDITION, THE PARTIES
SHALL HAVE NO OBLIGATIONS UNDER THIS ARTICLE III FOR ANY CONSEQUENTIAL
LIABILITY, DAMAGE OR LOSS THE INDEMNIFIED PARTY MAY SUFFER AS THE RESULT OF ANY
DEMAND, CLAIM OR LAWSUIT.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Purchaser as follows, which
representations and warranties shall survive the Effective Time for a period of
24 months:
Section 4.1. Corporation Organization
Seller is a banking corporation duly organized, validly existing and in
good standing under the laws of the State of Georgia. Seller has the corporate
power and authority to own its properties, to carry on its business as currently
conducted and to effect the transactions contemplated herein.
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Section 4.2. No Violation
The Banking Center has been operated in all material respects in
accordance with applicable laws, rules and regulations. Neither the execution
and delivery of this Agreement, nor the consummation of the transactions
contemplated herein, will violate or conflict with (a) Seller's Articles of
Incorporation or Bylaws; (b) any provision of any material agreement or any
other material restriction of any kind to which Seller is a party or by which
Seller is bound, which would cause a material adverse effect on the business
operations of the Banking Center; (c) any statute, law, decree, regulation or
order of any governmental authority, which would cause a material adverse effect
on the business operations of the Banking Center; or (d) any provision which
will result in a default under, or which cause the acceleration of the maturity
of, any material obligation or loan to which Seller is a party.
Section 4.3. Corporate Authority
The execution and delivery of this Agreement, and the consummation of
the transactions contemplated herein, have been duly authorized by Seller's
Board of Directors (or the Executive Committee thereof). No further corporate
authorization is necessary for Seller to consummate the transactions
contemplated hereunder.
Section 4.4. Enforceable Agreement
This Agreement has been duly authorized, executed and delivered by
Seller and is the legal, valid and binding agreement of Seller, enforceable
against Seller in accordance with its terms.
Section 4.5. No Brokers
All negotiations relative to this Agreement and the transactions
contemplated hereby have been carried on by Seller and Purchaser, and there has
been no participation or intervention by any other person, firm or corporation
employed or engaged by or on behalf of Seller in such a manner as to give rise
to any valid claim against Seller or Purchaser for a brokerage commission,
finder's fee or like commission. Seller agrees to indemnify and hold Purchaser
harmless from and against any claim for payment of such amounts. The obligations
set forth herein shall survive the Closing or earlier termination of this
Agreement.
Section 4.6. Personal Property
Seller owns, and will convey to Purchaser at the Closing, all of
Seller's right, title and interest to all of the Personal Property free and
clear of any claims, mortgages, liens, security interests, pledges or
encumbrances of any kind, except as may otherwise be set forth in this
Agreement. The Personal Property will be, at the time of the Closing, in
substantially the same operating condition and repair as on the date hereof
subject to ordinary wear and tear.
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Section 4.7. Real Property
Seller makes the following representations and warranties regarding the
Real Property:
(a) Except as set forth in Exhibit 4.7, Seller has no knowledge of any
condemnation proceedings pending against the Real Property.
(b) Except as set forth in Exhibit 4.7, Seller has not entered into any
agreement regarding the Real Property, and to Seller's knowledge the
Real Property is not subject to any claim, demand, suit, lien,
proceeding or litigation of any kind, pending or outstanding, or to
Seller's knowledge, threatened or likely to be made or instituted,
which would in any way be binding upon Purchaser or its successors or
assigns or materially affect or limit Purchaser's or its successors'
or assigns' use and enjoyment of the Real Property or which would
materially limit or restrict Purchaser's right or ability to enter
into this Agreement and consummate the sale and purchase contemplated
hereby.
(c) Seller has or will have at Closing good and marketable fee simple
title to the Real Property and, at Closing, will own the Real Property
outright subject to: no mortgage, pledge, lien, security interest,
lease, charge, encumbrance or conditional sales or other title
retention agreement; real property taxes not yet due and payable; and
easements and rights of way upon which improvements encroach or which
do not materially interfere with the use of the Real Property as a
Banking Center.
(d) Seller has no knowledge of and has received no notice of a violation
of any applicable local, state and federal laws and regulations
concerning the Real Property.
(e) Seller has received no notice of, and to Seller's knowledge (1) there
are no Hazardous Substances (as hereinafter defined) above ground or
underground storage tanks on, under, or at the Real Property; (2) the
Real Property has not been used for industrial purposes or for the
storage, treatment or disposal of Hazardous Substances; and (3) the
Real Property has not been listed by a governmental agency as
containing any oil or Hazardous Substances. "Hazardous Substances," as
used herein, means any toxic or hazardous waste, pollutants, or
substances, including, without limitation, petroleum products or
byproducts, asbestos (irrespective of whether or not encapsulated) and
substances defined or listed as hazardous substances or toxic
substances or similarly identified in or pursuant to the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as
amended, 41 U.S.C.ss.9601, et seq., hazardous materials identified in
or pursuant to the Hazardous Materials Transportation Act, 49
U.S.C.ss.1802, et seq., hazardous waste identified in or pursuant to
the Resource Conservation and Recovery Act of 1976, as amended, 15
U.S.C.ss.2601, et seq., or any hazardous or toxic substance or
pollutants regulated under any other applicable federal or local
20
environmental law; except that, notwithstanding the foregoing or any
other provision in this Agreement to the contrary, the words
"Hazardous Substance(s)" shall not mean or include de minimis levels
of hazardoussubstances present in the ordinary course of business
which do not pose a material threat to human health or the
environment.
(f) Neither Seller nor the Real Property is subject to any commitment,
obligation, lease or agreement with respect to the Real Property,
including, but not limited to, any right of first refusal or offer to
purchase.
Section 4.8. Condition of Property
The Real Property and Personal Property to be purchased by Purchaser
hereunder are sold AS IS, WHERE IS, with no warranties or representations
whatsoever, except as may be expressly represented or warranted in this
Agreement.
Section 4.9. Loans
Seller makes the following representations and warranties with respect
to each Loan to be transferred to Purchaser hereunder: to Seller's knowledge the
Loan is a valid obligation according to its tenor without any offsets and
defenses thereto; Seller is the sole owner thereof, no participation therein
having been sold; the Loan is not pledged or encumbered; the principal balance
of the Loan and accrued interest as shown on Seller's books and records are true
and correct as of the last date shown thereon; to Seller's knowledge all
purported signatures on and executions of any document in connection with such
Loan are genuine; to Seller's knowledge all documentation regarding a loan has
been actually signed or executed by all necessary parties; and Seller has
custody of the original documents related to each Loan and shall transfer such
documents to Purchaser at the Closing.
Section 4.10. Deposit Liabilities
Seller makes the following representations and warranties with respect
to the Deposit Liabilities for each customer which are to be assumed by
Purchaser: the Deposit Liabilities are valid liabilities arising from deposits
made or CDs purchased by a customer; for each Deposit Liability the account
balances and interest accrued as shown on the Seller's books and records are
true and correct as of the last date shown thereon; to Seller's knowledge all
purported signatures on and executions of any document in connection with such
accounts are genuine; to Seller's knowledge all deposit account contracts and
signature cards have actually been signed or executed by all necessary parties
and are assignable to Purchaser; and Seller has custody of the originals of such
documents and shall transfer such documents to Purchaser as the Closing. To
Seller's knowledge there are no Deposit Liabilities, except for the obligation
to maintain the deposits in accordance with the deposit contracts and to pay the
account balances and interest accrued thereon.
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Section 4.11. Obligations to Employees
With respect to Employees in the Banking Center, no obligations for any
payment shall be outstanding or pending at the Effective Time and there is no
employment agreement in effect with respect to any such Employees.
Section 4.12. No Suits or Proceedings
There is no pending or, to Seller's knowledge, threatened adverse
claims, suits or judicial or administrative proceedings which would affect the
transactions contemplated by this Agreement.
Section 4.13. No Liabilities
To Seller's knowledge, there are no other liabilities, contingent,
direct, indirect or otherwise, affecting the Banking Center other than those
liabilities specifically described herein. Without limiting the generality of
the foregoing, to Seller's knowledge, there are no liabilities arising out of or
in connection with the safe deposit box contracts other than the liability to
provide the safe deposit boxes in accordance with the terms of such contracts.
Section 4.14. True Statement
Neither this Agreement nor any certificate, document or other
information furnished or to be furnished to Purchaser by or on behalf of Seller
in connection with this Agreement or the transactions contemplated hereby
contains or will contain any misstatement of a material fact, or omits or will
omit to state a material fact necessary in order to make the representations and
warranties and other statements herein or therein contained not misleading, in
the circumstances in which made.
Section 4.15. Financial Data
Attached hereto as Exhibit 4.15 are a Balance Sheet dated as of
September 30, 2001 and a Asset Listing with Net Book Value as of September 30,
2001 (collectively, the "Financials"). With respect to the Financials, Seller
represents and warrants as follows: the amounts shown as loans, land and
buildings, FF&E and deposits on the Balance Sheet are the amounts for such items
for the Banking Center as shown on the books and records of the Seller and are
true and correct as of the date shown thereon and have been determined using
GAAP; and the data on the Asset Listing Sheet is true and correct and the
amounts shown thereon are the same as reflected in the books and records of the
Seller.
Section 4.16. Limitation of Representations and Warranties
Except as may be expressly represented or warranted in this Agreement
by Seller, Seller makes no representations or warranties whatsoever with regard
to any asset being transferred to Purchaser or any liability or obligation being
assumed by Purchaser or as to any other matter or thing.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to Seller as follows, which
representations and warranties shall survive the Effective Time for a period of
24 months:
Section 5.1. Corporate Organization
Purchaser is a banking corporation, duly organized, validly existing,
and in good standing under the laws of the State of Georgia. Purchaser has the
corporate power and authority to own the properties being acquired, to assume
the liabilities being transferred and to effect the transactions contemplated
herein.
Section 5.2. No Violation
Neither the execution and delivery of this Agreement, nor the
consummation of the transactions contemplated herein, will violate or conflict
with (a) the Articles of Incorporation or Bylaws of Purchaser; (b) any provision
of any material agreement or any other material restriction of any kind to which
Purchaser is a party or by which Purchaser is bound, which would have a material
adverse effect on Purchaser's ability to perform its obligations under this
Agreement; or (c) any statute, law, decree, regulation or order of any
governmental authority, which would have a material adverse effect on
Purchaser's ability to perform its obligations under this Agreement.
Section 5.3. Corporate Authority
The execution and delivery of this Agreement, and the consummation of
the transactions contemplated herein, have been duly authorized by the
Purchaser's Board of Directors (or Executive Committee thereof). No further
corporate authorization on the part of Purchaser is necessary to consummate the
transactions contemplated hereunder.
Section 5.4. Enforceable Agreement
This Agreement has been duly authorized, executed and delivered by
Purchaser and is the legal, valid and binding agreement of Purchaser enforceable
against Purchaser in accordance with its terms.
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Section 5.5. No Brokers
All negotiations relative to this Agreement and the
transactions contemplated hereby have been carried on by Seller and Purchaser,
and there has been no participation or intervention by any other person, firm or
corporation employed or engaged by or on behalf of Purchaser in such a manner as
to give rise to any valid claim against Seller or Purchaser for a brokerage
commission, finder's fee or like commission. Purchaser agrees to indemnify and
hold Seller harmless from and against any claim for payment of such amounts. The
obligations set forth herein shall survive the Closing or earlier termination of
this Agreement.
ARTICLE VI
OBLIGATIONS OF PARTIES PRIOR TO AND AFTER EFFECTIVE TIME
Section 6.1. Full Access
Seller shall afford to the officers and authorized representatives of
Purchaser, upon prior notice and subject to Seller's normal security
requirements, access to the properties, books and records pertaining to the
Banking Center in order that Purchaser may have full opportunity to make
reasonable investigations, at reasonable times without interfering with the
normal business and operations of the Banking Center, or the affairs of Seller
relating to the Banking Center. The officers of Seller shall furnish Purchaser
with one standard set of such additional financial and operating data and other
information as to its business and properties at the Banking Center, or where
otherwise located, as Purchaser may, from time to time, reasonably request and
as shall be available, including, without limitation, information required for
inclusion in all governmental applications necessary to effect this transaction.
Any additional copies of such information shall be produced and provided at
Purchaser's expense. Nothing in this Section 6.1 shall require Seller to breach
any obligation of confidentiality or to reveal any proprietary information,
trade secrets or marketing or strategic plans. Records, including, without
limitation, credit information, relating to the Loans will be made available for
review by Purchaser no later than 15 calendar days after the execution of this
Agreement. It is understood that certain of Seller's records may be available
only in the form of photocopies, film copies or other non-original and non-paper
media.
Section 6.2. Delivery of Magnetic Media Records
Seller shall prepare at its expense and make available to Purchaser at
Seller's data processing center magnetic media records in Seller's field format
not later than 30 calendar days after the execution of this Agreement and
further shall make available to Purchaser such records updated as of the Closing
Date, which records shall contain the information related to the items described
in subsections 2.2(b)(6) and (b)(7) above. Such updated records shall be made
available at such time after Closing as agreed to by the parties. At its option,
Seller may provide such reports in paper format instead of magnetic media
format.
24
Section 6.3. Data Processing
If Seller's magnetic media records are not converted to Purchaser's
data processing system at or before the Effective Time, Seller agrees to
continue processing banking transactions occurring at the Banking Center on
behalf of Purchaser for up to 60 days following the Effective Time. Furthermore,
if Seller's magnetic media records are converted to Purchaser's data processing
system before the Effective Time, Purchaser agrees to continue processing
banking transactions occurring at the Banking Center on behalf of Seller until
the Effective Time.
Section 6.4. Application for Approval to Effect Purchase of Assets and
Assumption of Liabilities
Within five (5) calendar days following the execution of this Agreement,
Purchaser shall prepare and file applications required by law with the
appropriate regulatory authorities for approval to purchase and assume the
aforesaid assets and liabilities, to establish branches at the locations of the
Banking Center, and to effect in all other respects the transactions
contemplated herein; provided, however, that the Purchaser shall not be deemed
to have breached this Section 6.4 if it cannot prepare and file such application
within such five (5) calendar day period due to any action or inaction on the
part of Seller. Purchaser agrees to process such applications in a diligent
manner and on a priority basis and to provide Seller promptly with a copy of
such applications as filed (except for any confidential portions thereof) and
all material notices, orders, opinions, correspondence and other documents with
respect thereto, and to use its best efforts to obtain all necessary regulatory
approvals. On the date hereof, neither Seller nor Purchaser knows of any reason
why such applications should not receive all such approvals. Purchaser shall
promptly notify Seller upon receipt by Purchaser of notification that any
application provided for hereunder has been denied. Seller shall provide such
assistance and information to Purchaser as shall be reasonably necessary for
Purchaser to comply with the requirements of the applicable regulatory
authorities.
Section 6.5. Conduct of Business; Maintenance of Properties
From the date hereof until the Effective Time, Seller covenants that it
will:
(a) Carry on the business of the Banking Center substantially in the same
manner as on the date hereof, use all reasonable efforts to preserve
intact its current business organization and preserve its business
relationships with depositors, customers and others having business
relationships with it and whose accounts will be retained at the
Banking Center and to keep available the services of its present
employees; provided, however, that Seller need not, in its sole
discretion, advertise or promote new or substantially new customer
services in the principal market area of the Banking Center, and shall
not, (1) other than changes to match rates charged by competitors of
the Banking Center, change the interest rates offered by it on
deposits in the Banking Center, or (2) take any other action to
materially increase the level of public funds on deposit at the
Banking Center above those set forth on the Financials, other than (i)
normal fluctuations in existing public funds transaction account and
(ii) unsolicited deposits.
25
(b) Cooperate with and assist Purchaser in assuring the orderly transition
of the business of the Banking Center to Purchaser from Seller;
(c) Maintain the Real Property and the Personal Property in its current
condition, ordinary wear and tear excepted, and maintain casualty and
hazard insurance on all of the property at the same levels as
maintained as of the date hereof;
(d) Use its reasonable best efforts to avoid any act that would have a
material adverse effect upon the value of the Loans or the other
assets to be transferred hereunder;
(e) Maintain its books of account and records concerning the Banking
Center and the Loans and Deposit Liabilities in the ordinary and usual
manner, in accordance with GAAP;
(f) Not take any action which would cause any representation or warranty
made herein to be untrue at the date of Closing;
(g) Not make any changes in its management policies or pricing at the
Banking Center, unless the changes are consistent with competitive
market conditions;
(h) Not directly compete for or solicit business originated from, carried
on the books of, or maintained or serviced by, the Banking Center in
any manner inconsistent with or adverse to Purchaser's interests; and
(i) Refrain from entering into any agreements or creating any covenants or
other encumbrances affecting the Real Property.
Section 6.6. No Solicitation by Seller
For a period of 12 months after the Effective Time, Seller and any of
Seller's affiliate banks will not specifically target and solicit customers of
the Banking Center; provided, however, these restrictions shall not restrict
general mass mailings, telemarketing calls, statement stuffers and other similar
communications directed to all the current customers of Seller or Seller's
affiliates, or to the public or newspaper, radio, television or Internet
advertisements of a general nature or otherwise prevent Seller from taking such
actions as may be required to comply with any applicable federal or state laws,
rules or regulations. In addition, these restrictions shall not restrict (a) the
solicitation of commercial accounts established and maintained prior to the
Effective Time in offices other than the Banking Center or (b) the ability of
Seller to install, operate and serve customers' needs through automated teller
machines at any location other than within a two (2)-mile radius of the Banking
Center.
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Section 6.7. Restrictions on New Offices
Seller agrees that for a period of three years after the Effective
Time, Seller shall not operate any office in ▇▇▇▇▇▇ County, Georgia, for the
purpose of receiving deposits. The agreement of Seller in this Section 6.6 shall
not be applicable to banking offices which are acquired by Seller as a result of
its acquisition of financial institutions having main offices located in
counties other than ▇▇▇▇▇▇ County, Georgia.
Section 6.8. Further Actions
The parties hereto shall execute and deliver such instruments and take
such other actions as the other party may reasonably require in order to carry
out the intent of this Agreement.
Section 6.9. Fees and Expenses
Purchaser shall be responsible for the costs of all title examinations,
title insurance fees, surveys, its own attorneys' and accountants' fees and
expenses, recording costs, transfer fees (except for real estate transfer taxes
and the recording fees for the limited warranty deed and any fees and costs in
connection with curing any Title Defects, which will be paid by Seller) and
other expenses arising in connection therewith. Seller shall be responsible for
its own attorneys' and accountants' fees and expenses related to this
transaction.
Section 6.10. Breaches with Third Parties
If the assignment of any material claim, contract, license, lease,
commitment, sales order or purchase order (or any material claim or right or any
benefit arising thereunder) without the consent of a third party would
constitute a breach thereof or materially affect the rights of Purchaser or
Seller thereunder, then such assignment is hereby made subject to such consent
or approval being obtained.
Section 6.11. Insurance
As of the Effective Time, Seller will discontinue its insurance
coverage maintained in connection with the Banking Center and the activities
conducted thereon. Purchaser shall be responsible for all insurance protection
for the Banking Center premises and the activities conducted thereon immediately
following the Effective Time. Pending the Closing, risk of loss shall be the
responsibility of Seller.
Section 6.12. Public Announcements
Seller and Purchaser agree that, from the date hereof, neither shall
make any public announcement or public comment regarding this Agreement or the
transactions contemplated herein without first consulting with the other party
hereto and reaching an agreement upon the substance and timing of such
announcement or comment. Further, Seller and Purchaser acknowledge the
sensitivity of this transaction to the Employees and no announcements or
27
communications with the public or these Employees shall be made without the
prior approval of Seller.
Section 6.13. Tax Reporting
Seller shall comply with all tax reporting obligations in connection
with transferred assets and liabilities on or before the Effective Time, and
Purchaser shall comply with all tax reporting obligations with respect to the
transferred assets and liabilities after the Effective Time.
Section 6.14. Employee Information
Prior to the Closing Date, Seller shall, upon request, provide
Purchaser with mutually agreed upon personnel information regarding employees of
the Banking Center; provided, however, that neither this section nor any other
provisions of this Agreement shall be construed as an agreement, consideration,
inducement, or creation of any responsibility or liability on the part of
Purchaser, or as affecting in any manner or to any extent whatsoever the rights
or obligations of Purchaser, with respect to the employment of any employee of
Seller.
Section 6.15. Transition Period
Seller shall make available to the Purchaser, on a mutually agreeable
basis, personnel for consultation and the performance of services reasonably
necessary for an orderly transition during normal business hours for a period of
sixty (60) calendar days after the Closing.
ARTICLE VII
CONDITIONS TO PURCHASER'S OBLIGATIONS
The obligation of Purchaser to complete the transactions contemplated
in this Agreement are conditioned upon fulfillment, on or before the Closing, of
each of the following conditions:
Section 7.1. Representations and Warranties True
The representations and warranties made by Seller in this Agreement
shall be true in all material respects on and as of the Effective Time as though
such representations and warranties were made at and as of such time, except for
any changes permitted by the terms hereof or consented to in writing by
Purchaser, and without regard to the knowledge of the Seller.
Section 7.2. Obligations Performed
Seller shall (a) deliver or make available to Purchaser those items
required by Section 2.2 hereof, and (b) perform and comply in all material
respects with all obligations, conditions and agreements required by this
Agreement to be performed or complied with by it prior to or at the Effective
Time.
28
Section 7.3. No Adverse Litigation
As of the Effective Time, no action, suit or proceeding shall be
pending or threatened against Seller which is reasonably likely to (a)
materially and adversely affect the business, properties and assets of the
Banking Center, or (b) materially and adversely affect the transactions
contemplated herein.
Section 7.4. Regulatory Approval
Purchaser shall have received all necessary regulatory approvals of the
transactions contemplated herein, all notice and waiting periods required by law
to pass shall have passed, no proceeding to enjoin, restrain, prohibit or
invalidate such transactions shall have been instituted or threatened, and any
conditions of any regulatory approval shall have been met.
ARTICLE VIII
CONDITIONS TO SELLER'S OBLIGATIONS
The obligation of Seller to complete the transactions contemplated in
this Agreement are conditioned upon fulfillment, on or before the Closing, of
each of the following conditions:
Section 8.1. Representations and Warranties True
The representations and warranties made by Purchaser in this Agreement
shall be true in all material respects at and as of the Effective Time as though
such representations and warranties were made at and as of such time, except for
any changes permitted by the terms hereof or consented to in writing by Seller.
Section 8.2. Obligations Performed
Purchaser shall (a) deliver to Seller those items required by Section
2.2 hereof, and (b) perform and comply in all material respects with all
obligations, conditions and agreements required by this Agreement to be
performed or complied with by it prior to or at the Effective Time.
Section 8.3. No Adverse Litigation
As of the Effective Time, no action, suit or proceeding shall be
pending or threatened against Purchaser which might materially and adversely
affect the transactions contemplated hereunder.
Section 8.4. Regulatory Approval
(a) Purchaser shall have received from the appropriate regulatory
authorities approval of the transactions contemplated herein, waiting
periods required by law to pass shall have passed, no proceeding to
enjoin, restrain, prohibit or invalidate such
29
transactions shall have been instituted or threatened, and any
conditions of any regulatory approval shall have been met.
(b) Such approvals shall not have imposed any condition which is
materially disadvantageous or burdensome to Seller.
ARTICLE IX
TERMINATION
Section 9.1. Methods of Termination
This Agreement may be terminated in any of the following ways:
(a) by either Purchaser or Seller, in writing five calendar days in
advance of such termination, if the Closing has not occurred by
January 31, 2002;
(b) by either Purchaser or Seller, in writing five calendar days in
advance of such termination, if all approvals by regulatory agencies
have been received and all statutory waiting periods have expired on
or before December 31, 2001 and the Closing has not occurred by
December 31, 2001;
(c) at any time on or prior to the Effective Time by the mutual consent in
writing of Purchaser and Seller;
(d) by Purchaser in writing if the conditions set forth in Article VII of
this Agreement shall not have been met by Seller or waived in writing
by Purchaser within 30 calendar days following the date of all
approvals by regulatory agencies and after all statutory waiting
periods have expired;
(e) by Seller in writing if the conditions set forth in Article VIII of
this Agreement shall not have been met by Purchaser or waived in
writing by Seller within 30 calendar days following the date of all
approvals by regulatory agencies and after all statutory waiting
periods have expired;
(f) any time prior to the Effective Time, by Purchaser or Seller in
writing if the other shall have been in breach of any representation
and warranty in any material respect (as if such representation and
warranty had been made on and as of the date hereof and on the date of
the notice of breach referred to below), or in breach of any covenant,
undertaking or obligation contained herein, and such breach has not
been cured by the earlier of 30 calendar days after the giving of
notice to the breaching party of such breach or the Effective Time;
provided, however, that there shall be no cure period in connection
with any breach of Section 6.4 hereof, so long as such breach by
Purchaser was not caused in whole or in part by any action or inaction
of Seller, and Seller may terminate this Agreement immediately
30
if regulatory applications are not filed within 30 calendar days after
the date of this Agreement as provided in that Section;
(g) by Seller in writing at any time after any applicable regulatory
authority has denied approval of any application of Purchaser for
approval of the transactions contemplated herein; or
(h) in accordance with Section 1.10 hereof.
Section 9.2. Procedure Upon Termination
In the event of termination pursuant to Section 9.1 hereof, and except
as otherwise stated therein, written notice thereof shall be given to the other
party, and this Agreement shall terminate immediately upon receipt of such
notice unless an extension is consented to by the party having the right to
terminate.
If this Agreement is terminated as provided herein,
(a) each party will return all documents, work papers and other materials,
including electronic data, of the other party, including photocopies
or other duplications thereof, relating to this transaction, whether
obtained before or after the execution hereof, to the party furnishing
the same; and
(b) all information received by either party hereto with respect to the
business of the other party (other than information which is a matter
of public knowledge or which has heretofore been published in any
publication for public distribution or filed as public information
with any governmental authority) shall not at any time be used for
any business purpose by such party or disclosed by such party to third
persons.
31
Section 9.3. Payment of Expenses
Should the transactions contemplated herein not be consummated because
of a party's breach of this Agreement, in addition to such damages as may be
recoverable in law or equity, the other party shall be entitled to recover from
the breaching party upon demand, itemization and documentation, its reasonable
outside legal, accounting, consulting and other out-of-pocket expenses.
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.1. Amendment and Modification
The parties hereto, by mutual consent of their duly authorized
officers, may amend, modify and supplement this Agreement in such manner as may
be agreed upon by them in writing.
Section 10.2. Waiver of Extension
Except with respect to required approvals of the applicable
governmental authorities, either party, by written instrument signed by a duly
authorized officer, may extend the time for the performance of any of the
obligations or other acts of the other party and may waive (a) any inaccuracies
in the representations and warranties contained herein or in any document
delivered pursuant hereto or (b) compliance with any of the undertakings,
obligations, covenants or other acts contained herein.
Section 10.3. Assignment
This Agreement and all of the provisions hereof shall be binding, upon,
and shall inure to the benefit of, the parties hereto and their permitted
assigns, but neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by either of the parties hereto without
the prior written consent of the other.
Section 10.4. Confidentiality
Seller and Purchaser (or one of its affiliates) agree that the
Confidentiality Agreement dated August 31, 2001, between Seller and Purchaser
(or one of its affiliates) (the "Confidentiality Agreement") shall survive the
execution hereof and the consummation of the transactions contemplated herein.
32
Section 10.5. Addresses for Notices, Etc.
All notices, requests, demands, consents and other communications
provided for hereunder and under the related documents shall be in writing and
mailed (by registered or certified mail, return receipt requested), telegraphed,
telexed, telecopied or personally delivered (with receipt thereof acknowledged)
to the applicable party at the address indicated below:
If to Seller: ▇▇▇▇ ▇. ▇▇▇▇▇
Security Bank and Trust
Company of Albany
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to: ▇▇▇▇▇ ▇▇▇▇▇▇
Synovus Financial Corp.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Synovus Financial Corp.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to Purchaser: ▇▇▇▇ ▇. ▇▇▇▇▇▇
President
Merchants & Farmers Bank
▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇▇ ▇. ▇▇▇, Esq.
▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
2700 International Tower
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
or, as to each party, at such other address as shall be designated by such party
in a written notice to the other party complying as to delivery with the terms
of this Section.
33
Section 10.6. Counterparts
This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Section 10.7. Headings
The headings of the Sections and Articles of this Agreement are
inserted for convenience only and shall not constitute a part thereof.
Section 10.8. Governing Law
This Agreement shall be governed by, and construed in accordance with,
the laws of the State of Georgia.
Section 10.9. Sole Agreement
Except for the Confidentiality Agreement, this Agreement and the
exhibits and attachments hereto represent the sole agreement between the parties
hereto respecting the transactions contemplated hereby and all prior or
contemporaneous written or oral proposals, agreements in principle,
representations, warranties and understandings between the parties with respect
to such matters are superseded hereby and merged herein.
Section 10.10. Severability
If any provision of this Agreement is invalid or unenforceable, the
balance of this Agreement shall remain in effect.
Section 10.11. Parties in Interest
Nothing in this Agreement, express or implied, expressly including,
without limiting the generality of the foregoing in any way, the provisions of
Section 1.6(a) hereof, is intended or shall be construed to confer upon or give
to any person (other than the parties hereto, their successors and permitted
assigns) any rights or remedies under or by reason of this Agreement, or any
term, provision, condition, undertaking, warranty, representation, indemnity,
covenant or agreement contained herein.
[Signatures Follow]
34
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their duly authorized officers as of the date first written above.
ATTEST: SECURITY BANK AND TRUST COMPANY
OF ALBANY
By: /s/ M. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------- --------------------------------
Name: M. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------- ------------------------------
Title: Executive Vice President Title: President
------------------------------ -----------------------------
ATTEST: MERCHANTS & FARMERS BANK
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------- --------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------- -----------------------------
Title: Senior Vice President & Title: Chairman & Chief Executive
------------------------------ -----------------------------
Corporate Secretary of ABC Officer of ABC Bancorp,
Bancorp, Parent Company of Parent Company of Merchants
Merchant & Farmers Bank & Farmers Bank
35
PURCHASE AND ASSUMPTION AGREEMENT
Between
SECURITY BANK AND TRUST COMPANY OF ALBANY
and
MERCHANTS & FARMERS BANK
EXHIBIT LIST
Exhibit No. Description
1.1(a)(1) Real Estate Description
1.1(b) List of Excluded Assets
1.3(a) List of Excluded Deposits
1.4(k) Power of Attorney
1.6(c) Severance Benefits
2.2(b)(2) Form of ▇▇▇▇ of Sale
2.2(b)(3) Form of Assignment and Assumption Agreement
2.2(b)(14) Form of Closing Statement
2.2(b)(17) Form of Title Affidavit
4.7 Real Property Exceptions
4.15 The Financials
EXHIBIT 1.1(a)(1)
PURCHASE AND ASSUMPTION AGREEMENT
Between
SECURITY BANK AND TRUST COMPANY OF ALBANY
and
MERCHANTS & FARMERS BANK
REAL ESTATE DESCRIPTION
EXHIBIT 1.1(b)
PURCHASE AND ASSUMPTION AGREEMENT
Between
SECURITY BANK AND TRUST COMPANY OF ALBANY
and
MERCHANTS & FARMERS BANK
LIST OF EXCLUDED ASSETS
EXHIBIT 1.3(a)
PURCHASE AND ASSUMPTION AGREEMENT
Between
SECURITY BANK AND TRUST COMPANY OF ALBANY
and
MERCHANTS & FARMERS BANK
LIST OF EXCLUDED DEPOSITS
EXHIBIT 1.4(k)
PURCHASE AND ASSUMPTION AGREEMENT
Between
SECURITY BANK AND TRUST COMPANY OF ALBANY
and
MERCHANTS & FARMERS BANK
POWER OF ATTORNEY
THIS POWER OF ATTORNEY is dated this _____ day of ____________, 2001,
by Security Bank and Trust Company of Albany, a bank organized under the laws of
the State of Georgia ("Security Bank"), to be effective as of 2:00 p.m. on
____________, 2001.
WITNESSETH:
WHEREAS, Security Bank and Merchants & Farmers Bank have entered into a
Purchase and Assumption Agreement dated as of ____________, 2001 (the
"Agreement"), which provides for the sale by Security Bank to the Merchants &
Farmers Bank of certain personal property; and
WHEREAS, in a ▇▇▇▇ of Sale to Merchants & Farmers Bank dated
____________, 2001 (the "▇▇▇▇ of Sale"), Security Bank has agreed, from time to
time, at the request of Merchants & Farmers Bank, to execute, acknowledge, and
deliver any and all instruments, documents, endorsements, assignments,
information, materials, and other papers that may be reasonably required to (i)
transfer to Merchants & Farmers Bank certain Assets (as defined in the ▇▇▇▇ of
Sale) being acquired by Merchants & Farmers Bank pursuant to the Agreement,
including, but not limited to, loans and the collateral therefor to the extent
of Security Bank's interest in such collateral and files and records relating to
such loans, (ii) enable Merchants & Farmers Bank to ▇▇▇▇, collect, service, and
administer the loans transferred thereby and (iii) give full force and effect to
the intent and purpose of the ▇▇▇▇ of Sale.
NOW, THEREFORE, for good and valuable consideration, receipt of which
is hereby acknowledged, Security Bank hereby irrevocably appoints and authorizes
the President or any Vice President, or the Secretary or any Assistant
Secretary, of Merchants & Farmers Bank as its attorney-in-fact solely for the
purpose of endorsing and recording, pursuant to the ▇▇▇▇ of Sale, certificates
of title for vehicles and similar documents, provided such power of attorney is
not intended to and does not convey to Merchants & Farmers Bank any right to
endorse or record any documents of title relating to collateral other than
collateral transferred pursuant to the ▇▇▇▇ of Sale as described in the
preceding paragraph.
IN WITNESS WHEREOF, Security Bank has caused this Power of Attorney to
be duly executed by its duly authorized officer as of the day and year first
above written.
WITNESSES: SECURITY BANK AND TRUST COMPANY
OF ALBANY
By:
------------------------------ --------------------------------------
Name:
------------------------------------
Title:
------------------------------ -----------------------------------
EXHIBIT 1.6(c)
PURCHASE AND ASSUMPTION AGREEMENT
Between
SECURITY BANK AND TRUST COMPANY OF ALBANY
and
MERCHANTS & FARMERS BANK
SEVERANCE BENEFITS
Two weeks of base pay for every year of service with Seller, with a
minimum severance benefit of 30 days.
EXHIBIT 2.2(b)(2)
PURCHASE AND ASSUMPTION AGREEMENT
Between
SECURITY BANK AND TRUST COMPANY OF ALBANY
and
MERCHANTS & FARMERS BANK
▇▇▇▇ OF SALE
THIS ▇▇▇▇ OF SALE is dated this _____ day of ____________ 2001, by
Security Bank and Trust Company of Albany, a bank organized under the laws of
the State of Georgia ("Seller").
WITNESSETH:
WHEREAS, Seller and Merchants & Farmers Bank, a bank organized under
the laws of the State of Georgia, have entered into a Purchase and Assumption
Agreement dated as of ____________, 2001 (the "Agreement"), which provides for
the sale by Seller to Purchaser of certain personal property and loans related
to Seller's offices located in Colquitt, Georgia (the "Banking Center"), all as
set forth in the Agreement;
NOW, THEREFORE, Seller, for good and valuable consideration, receipt of
which is hereby acknowledged, does hereby grant, bargain, sell, assign, set
over, convey and transfer to Purchaser all of its right, title and interest in
and to the following assets (the "Assets"):
(a) All furniture, fixtures, equipment and other tangible personal
property located in the Banking Center, except for those items
listed in Exhibit 1.1(b) of the Agreement;
(b) All of the loans maintained, serviced and listed in Seller's
general ledger as loans of the Banking Center (except for
those loans described in Section 1.4(b) of the Agreement), and
a list of such specific loans is attached hereto (the
"Loans"); and
(c) All of Seller's files and records related to the Loans,
Deposit Liabilities, Safe Deposit Box Contracts and other
liabilities (as such terms are defined or described in the
Agreement).
Seller, for itself and its successors and assigns, does hereby covenant
and agree to and with Purchaser and its successors and assigns that it (i) is
seized of, and has the right to convey to Purchaser, such title to the Assets as
is provided in the Agreement, (ii) will warrant and defend said title to the
Assets in the manner provided in the Agreement, and (iii) shall, from time to
time, at the request of Purchaser, execute, acknowledge and deliver to Purchaser
any and all further instruments, documents, endorsements, assignments,
information, materials and other
papers that may be reasonably required to transfer the Assets to Purchaser, to
enable Purchaser to ▇▇▇▇, collect, service and administer the Loans and to give
full force and effect to the full intent and purposes of this ▇▇▇▇ of Sale.
IN WITNESS WHEREOF, Seller has caused this ▇▇▇▇ of Sale to be duly
executed by its duly authorized officers and its corporate seal to be affixed
hereto, all as of the day and year first above written.
SECURITY BANK AND TRUST COMPANY
OF ALBANY
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
ATTEST:
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
EXHIBIT 2.2(b)(3)
PURCHASE AND ASSUMPTION AGREEMENT
Between
SECURITY BANK AND TRUST COMPANY OF ALBANY
and
MERCHANTS & FARMERS BANK
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT is entered into this _____ day
of ____________, 2001, by and between Security Bank and Trust Company of Albany,
a bank organized under the laws of the State of Georgia ("Seller"), and
Merchants & Farmers Bank, a bank organized under the laws of the State of
Georgia ("Purchaser").
WITNESSETH:
WHEREAS, Seller and Purchaser have entered into a Purchase and
Assumption Agreement dated as of ____________ , 2001 (the "Agreement"), which
provides for the assignment by Seller of all of its rights and interests in and
to certain leases, contracts, deposit accounts and other liabilities related to
Seller's offices located in Colquitt, Georgia (the "Banking Center"), and the
assumption by Purchaser of all of Seller's liabilities and obligations
thereunder, all as set forth in the Agreement;
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, receipt of which is hereby acknowledged by Seller
and Purchaser, Seller hereby assigns, transfers and sets over to Purchaser all
of Seller's rights and interests to, and Purchaser does hereby assume all of
Seller's liabilities and obligations in connection with, the following assets
(the "Assets");
(a) All deposit accounts located at the Banking Center as set
on the conversion tape delivered by Seller to Purchaser
pursuant to consummation of the transactions contemplated
by the Agreement, except for those deposit accounts and
liabilities described in Section 1.3(b) of and
Exhibit 1.3(a) to the Agreement (the "Deposit
Liabilities"); and
(b) Safe Deposit Contracts.
This Assignment and Assumption Agreement shall be binding upon, and
shall inure to the benefit of, Seller, Purchaser, and each of their successors
and assigns and shall be subject to the terms and conditions of the Agreement.
In the event of a conflict between any of the terms and provisions hereof and
the Agreement, the Agreement shall be deemed to control.
This Assignment and Assumption Agreement, and the rights and
obligations of the parties hereunder, shall be governed by and construed in
accordance with the laws of the State of Georgia.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Assumption Agreement to be executed by their duly authorized officers and their
corporate seals to be affixed hereto, all as of the day and year first above
written.
SECURITY BANK AND TRUST COMPANY
OF ALBANY
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
ATTEST:
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
MERCHANTS & FARMERS BANK
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
ATTEST:
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
EXHIBIT 2.2(b)(14)
PURCHASE AND ASSUMPTION AGREEMENT
Between
SECURITY BANK AND TRUST COMPANY OF ALBANY
and
MERCHANTS & FARMERS BANK
CLOSING STATEMENT
(Pre-Closing Balance Sheet as of ____________, 2001)
Cash due Purchaser for:
Deposit liability (including
accrued interest) ____________
Pro rata safe deposit box rental ____________
Pro rata real property taxes ____________
Real Estate Transfer Tax ____________
Total Cash due Purchaser ____________
Cash due Seller for:
Real Property ____________
Personal Property ____________
Coins and currency ____________
Premium on deposits ____________
Loans and other assets
(including accrued interest) ___________
Pro rata FDIC insurance ____________
Total Cash due Seller ____________
Net Cash due (Purchaser) (Seller) ____________
Seller hereby approves the Closing Statement and acknowledges receipt
of the total cash due Seller. Purchaser hereby approves the Closing Statement,
acknowledges receipt of the net cash due Purchaser and assumes liability for
payment of all taxes and other expenses as provided for in the Purchase and
Assumption Agreement between Seller and Purchaser dated as of ____________, 2001
(the "Agreement"). Seller and Purchaser agree to make subsequent adjustments to
the extent necessary in accordance with Section 2.3 of the Agreement.
SECURITY BANK AND TRUST COMPANY
OF ALBANY
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
Date:
--------------------------------
MERCHANTS & FARMERS BANK
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
Date:
--------------------------------
EXHIBIT 2.2(b)(17)
PURCHASE AND ASSUMPTION AGREEMENT
Between
SECURITY BANK AND TRUST COMPANY OF ALBANY
and
MERCHANTS & FARMERS BANK
OWNER'S AFFIDAVIT
STATE OF ___________ ) NBU FILE # ______________
) SS: [NAME OF FACILITY]
COUNTY OF _________ ) [CITY, STATE]
The undersigned, _________________, being duly sworn according to law,
deposes and says as follows:
1. Affiant is the ______________ of ______________________, a
___________ corporation, hereinafter the "Company", that
Affiant has personal knowledge of the facts that are sworn to
in this affidavit, and Affiant is fully authorized and
qualified to make this affidavit.
2. That there are no unpaid bills incurred by the Company for
work performed upon or materials delivered to the land
described on Exhibit "A" attached hereto and made a part
hereof by this reference (hereinafter the "Property") for the
construction or improvement of the Property during the past 95
calendar days.
3. That the Company is in exclusive undisturbed possession of the
Property and no other person has possession or any right to
possession of the Property or any interest therein, including
oil, gas or other minerals, and there are no unrecorded
tenancies, leases or other occupancies on the Property.
4. Except as shown on the Commitment [or attached hereto as
Exhibit "B"], there are no financing statements, chattel
mortgages, conditional bills of sale or retention of title
agreements affecting any fixtures located on the Property.
5. Except as shown on the Commitment [or attached hereto as
Exhibit "C"], there are no easements or claims of easement to
the Property; and no existing contracts, options or rights to
purchase for the Property other than in the transaction for
which this affidavit is given.
6. Except as shown on the Commitment [or attached hereto as
Exhibit "D"], there
are no judgments, liens, mortgages, or other claims against
the Property or against the Company which would attach as a
lien against the Property.
7. That no proceeding in bankruptcy instituted by or against the
Company is pending, nor has the Company ever made an
assignment for the benefit of creditors.
8. That there is no action or proceeding relating to the Property
in any state or federal court of the United States nor any
state or federal judgment or any federal lien of any kind or
nature whatever which now constitutes a lien or charge upon
the Property.
9. That the Company has not entered into any agreement with any
real estate broker for payment of a real estate commission or
fees relating to the purchase, sale, management, leasing or
other services in connection with the Property.
10. That there are no unpaid taxes, special assessments or
assessments of any nature, whether imposed by governmental or
private authority, against said Property, and that the Company
has no knowledge or notice of any plans for imposition of a
future assessment.
This affidavit is given to induce CHICAGO TITLE INSURANCE COMPANY to issue its
policies of title insurance including endorsements knowing full well that it
will rely upon the accuracy of same.
Sworn to and subscribed __________________________, a ______
before me this day of corporation
----
________, 2001.
By:
--------------------------------
Name:
------------------------------------ ------------------------------
Notary Public
[NOTARY SEAL] [CORPORATE SEAL]
My commission expires: SELLER'S FEDERAL TAX I.D. NUMBER IS:
------------------------------------ ------------------------------------
SELLER'S POST-CLOSING ADDRESS:
------------------------------------
------------------------------------
EXHIBIT "A"
(Attach Property Description)
EXHIBIT "B"
EXHIBIT "C"
EXHIBIT "D"
EXHIBIT 4.7
PURCHASE AND ASSUMPTION AGREEMENT
Between
SECURITY BANK AND TRUST COMPANY OF ALBANY
and
MERCHANTS & FARMERS BANK
REAL PROPERTY EXCEPTIONS
None
EXHIBIT 4.15
PURCHASE AND ASSUMPTION AGREEMENT
Between
SECURITY BANK AND TRUST COMPANY OF ALBANY
and
MERCHANTS & FARMERS BANK
The Financials