BRANCH PURCHASE AND ASSUMPTION AGREEMENT
BY AND BETWEEN
▇▇▇▇▇▇ FEDERAL BANK
AND
CRESCENT BANK & TRUST COMPANY
Dated as of April 22, 1999
TABLE OF CONTENTS
Page Number
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ARTICLE I TRANSFER OF ASSETS AND LIABILITIES...................... 1
Section 1.1 Transferred Assets...................................... 1
Section 1.2 Purchase Price.......................................... 2
Section 1.3 Core Deposits........................................... 4
Section 1.4 Reserved................................................ 7
Section 1.5 Safe Deposit Business................................... 7
Section 1.6 Employee Matters........................................ 8
Section 1.7 Records and Data Processing............................. 9
Section 1.8 Security................................................ 9
Section 1.9 Taxes and Fees, Proration of Certain Expenses........... 9
Section 1.10 Real Property...........................................10
ARTICLE II CLOSING AND EFFECTIVE TIME..............................11
Section 2.1 Dates...................................................11
Section 2.2 Closing.................................................12
Section 2.3 Adjustments.............................................14
ARTICLE III INDEMNIFICATION.........................................15
Section 3.1 Seller's Indemnification of Purchaser...................15
Section 3.2 Purchaser's Indemnification of Seller...................15
Section 3.3 Claims for Indemnity....................................16
Section 3.4 Limitations on Indemnification..........................16
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF SELLER................17
Section 4.1 Corporate Organization..................................17
Section 4.2 No Violation............................................17
Section 4.3 Corporate Authority.....................................17
Section 4.4 Enforceable Agreement...................................17
Section 4.5 Personal Property.......................................17
Section 4.6 Real Property...........................................18
Section 4.7 Year 2000 Compliance....................................19
Section 4.8 Reserved................................................19
Section 4.9 Proceedings and Information.............................19
Section 4.10 Reporting and Tax Withholding Documents.................19
Section 4.11 Condition of Property...................................19
Section 4.12 Consents and Approvals..................................20
Section 4.13 Limitation of Representations and Warranties............20
ARTICLE V REPRESENTATIONS AND WARRANTIES OF PURCHASER.............20
Section 5.1 Corporate Organization..................................20
Section 5.2 No Violation............................................20
Section 5.3 Corporate Authority.....................................21
Section 5.4 Enforceable Agreement...................................21
Section 5.5 Proceedings and Information.............................21
Section 5.6 Consents and Approvals..................................21
Section 5.7 Financing...............................................21
ARTICLE VI OBLIGATIONS OF PARTIES PRIOR TO AND AFTER
EFFECTIVE TIME..........................................22
Section 6.1 Full Access.............................................22
Section 6.2 Delivery of Magnetic Media Records......................22
Section 6.3 Application for Approval to Effect Purchase of
Assets and Assumptions of Liabilities...................23
Section 6.4 Conduct of Business; Maintenance of Properties..........23
Section 6.5 No Solicitation by Seller, etc..........................24
Section 6.6 Further Actions.........................................24
Section 6.7 Fees and Expenses.......................................24
Section 6.8 Breaches with Third Parties.............................25
Section 6.9 Insurance...............................................25
Section 6.10 Public Announcements....................................25
Section 6.11 Tax Reporting...........................................25
Section 6.12 Certain Actions.........................................25
ARTICLE VII CONDITIONS TO PURCHASER'S OBLIGATIONS...................26
Section 7.1 Representations and Warranties True.....................26
Section 7.2 Obligations Performed...................................26
Section 7.3 No Adverse Proceedings..................................26
Section 7.4 Regulatory Approval.....................................26
Section 7.5 No Material Adverse Change..............................27
ARTICLE VIII CONDITIONS TO SELLER'S OBLIGATIONS......................27
Section 8.1 Representations and Warranties True.....................27
Section 8.2 Obligations Performed...................................27
Section 8.3 No Adverse Proceedings..................................28
Section 8.4 Regulatory Approval.....................................28
ARTICLE IX TERMINATION.............................................28
Section 9.1 Methods of Termination..................................28
Section 9.2 Procedure Upon Termination..............................29
Section 9.3 Payment of Expenses.....................................29
ARTICLE X MISCELLANEOUS PROVISIONS................................30
Section 10.1 Amendment and Modification..............................30
Section 10.2 Waiver or Extension.....................................30
Section 10.3 Assignment..............................................30
Section 10.4 Confidentiality.........................................30
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Section 10.5 Addresses for Notices, Etc..............................31
Section 10.6 Counterparts............................................31
Section 10.7 Headings................................................32
Section 10.8 Governing Law...........................................32
Section 10.9 Expenses................................................32
Section 10.10 Time is of the Essence..................................32
Section 10.11 Cover, Index and Headings, Etc..........................32
Section 10.12 Broker, Finder, and Investment Banker Fees..............33
Section 10.13 Office Space............................................33
Section 10.14 Severability............................................33
Section 10.15 No Third Party Beneficiaries............................33
Section 10.16 Entire Agreement........................................33
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LIST OF EXHIBITS
----------------
Exhibit Number Description
-------------- -----------
1.1(b) Excluded Assets
1.3(b) Certificates of Deposit Not Assumed by Purchaser
2.2(b)(2) ▇▇▇▇ of Sale
2.2(b)(3) Assignment and Assumption Agreement
2.2(b)(14) Closing Statement
4.9 Proceedings and Information - Seller
5.5 Proceedings and Information - Purchaser
BRANCH PURCHASE AND ASSUMPTION AGREEMENT
----------------------------------------
THIS BRANCH PURCHASE AND ASSUMPTION AGREEMENT (this "Agreement") is
made and entered into as of April 22, 1999, by and between ▇▇▇▇▇▇ FEDERAL BANK
("Seller"), a savings association organized and existing under the laws of the
United States, with its corporate offices located in Tucker, Georgia, and
CRESCENT BANK & TRUST COMPANY ("Purchaser"), a bank organized and existing under
the laws of the State of Georgia.
Preamble
--------
The Board of Directors of Purchaser and the Board of Directors of
Seller have determined that the transactions described herein are in their
respective best interests. This Agreement provides for the purchase by
Purchaser of certain assets from Seller and the assumption by Purchaser of
certain liabilities of Seller related to Seller's banking office located at ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Branch Office").
In consideration of the premises and the respective warranties,
representations, covenants and agreements set forth herein, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties, intending to be legally bound, agree as follows:
ARTICLE I
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TRANSFER OF ASSETS AND LIABILITIES
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Section 1.1. Transferred Assets.
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(a) As of the Effective Time (as defined in Section 2.1) 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 (collectively, the "Assets") associated with the Branch
Office 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) all real estate and improvements thereon at the Branch Office
(the "Real Property");
(2) except as provided in Section 1.1(b), the furniture, fixtures,
computer, data processing equipment, leasehold improvements and
other tangible personal property owned by Seller and used and
located at the Branch Office (the "Personal Property");
(3) all safe deposit contracts and leases for the safe deposit boxes
located at the Branch Office as of the Effective Time (the "Safe
Deposit Contracts");
(4) all coins and currency located at the Branch Office as of the
Effective Time (the "Coins and Currency"); and
(5) Seller's rights in any equipment leased by the Seller and used
and located at the Branch Office ("Leased Equipment") and not
among the Excluded Assets.
(b) The assets, properties and rights listed below are specifically
excluded from the sale under this Agreement (the "Excluded Assets"):
(1) any rights to the name "▇▇▇▇▇▇ Federal Bank" and any of Seller
and its affiliates' and proprietary mutual funds' logos,
trademarks, trade names, signs, paper stock, forms and other
supplies containing any such logos, trademarks or trade names;
(2) any and all loans maintained, serviced, or listed in Seller's
general ledger as, loans of the Branch Office; and
(3) the assets listed on Exhibit 1.l(b) hereto, including, without
limitation, any computer, data processing or other equipment that
is not Year 2000 compliant.
(c) The Seller shall remove the Excluded Assets from the Branch Office at
or prior to the Effective Time. The Seller shall remove the Excluded
Assets at its own cost and, apart from making any repairs necessitated
by Seller's negligence in removing the Excluded Assets, Seller shall
be under no obligation to restore the Branch Office's premises to
their original conditions, which shall be the Purchaser's
responsibility.
Section 1.2. Purchase Price.
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(a) In consideration for the purchase of the Branch Office, the
Purchaser shall pay Seller a purchase price equal to the sum of
the following:
(1) The Net Book Value (as defined in Subsection 1.2(d) hereof)
for the Personal Property and the Real Property at the
Branch Office;
(2) An amount equal to the "Deposit Premium," which shall be
equal to the product of (i) 0.06, multiplied by (ii) the
Average Daily Deposits. The term "Average Daily Deposits"
shall mean the average daily closing balance of the deposit
accounts (excluding accrued but unpaid interest), including
Individual Retirement Accounts, of Seller originated at the
Branch Office computed over the twenty (20) consecutive
business days ending on and including
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the business day immediately prior to the Closing Date. The term
"business day" shall mean each day on which the Branch Office is
open for business. The parties understand and agree that the
closing balance for each business day shall be determined based
upon the deposit balances as of the standard 2:00 P.M. Atlanta,
Georgia daily cut off time on such day utilized by the Branch
Office.; and
(3) The face amount of the Coins and Currency.
(b) As of the effective time, Purchaser shall assume, and, except as set
forth herein, Seller shall have no further liability with respect to,
all of the duties, obligations and liabilities of Seller relating to
Leased Equipment, the Safe Deposit Contracts and the Deposit
Liabilities (including all accrued interest on such Deposit
Liabilities); 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) Seller shall prepare a balance sheet (the "Pre-Closing Balance Sheet")
in accordance with generally accepted accounting principles as of a
date not earlier than 30 days prior to the Effective Time (the "Pre-
Closing Balance Sheet Date") reflecting the assets to be sold,
assigned and transferred hereunder and the liabilities to be
transferred and assumed hereunder. Seller agrees to pay by wire
transfer to Purchaser at the Closing (as defined in Section 2.1
hereof), in immediately available funds by wire transfer, the excess
amount, if any, of the amount of Deposit Liabilities assumed by
Purchaser pursuant to Subsection 1.2(b) above, as reflected by the
Pre-Closing Balance Sheet, over the aggregate purchase price computed
in accordance with Subsection 1.2(a) above, as reflected by the Pre-
Closing Balance Sheet. Purchaser agrees to pay Seller at the Closing,
in immediately available funds by wire transfer, the excess, if any,
of the aggregate purchase price computed in accordance with Subsection
1.2(a) above, as reflected by the Pre-Closing Balance Sheet, over the
amount of Deposit Liabilities assumed by Purchaser pursuant to
Subsection 1.2(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.
(d) For purposes of this Agreement, "Net Book Value" means the value
determined from the Post-Closing Balance Sheet and in all cases shall
be net of accumulated depreciation and amortization through the
Effective Time.
(e) During the period from the date hereof to the Effective Time, Seller
shall prepare and provide Purchaser with monthly internal financial
reports of
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the Branch Office in the form currently prepared for each monthly
period subsequent to the execution of this Agreement and prior to the
Closing.
Section 1.3. Deposit Liabilities.
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(a) "Deposit Liabilities" shall mean all of Seller's duties,
obligations and liabilities relating to the deposit accounts,
including Individual Retirement Accounts, originated at the
Branch Office, including accrued but unpaid interest, as of the
Effective Time.
(b) Except for those liabilities and obligations specifically assumed
by Purchaser under Subsection 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 cashier checks, official checks, letters of credit,
money orders, interest checks and expense checks issued
prior to closing, consignments of U.S. Government "E" and
"EE" and other U.S. savings 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 Branch Office, or which thereafter arise with
respect to matters occurring prior to Closing.
(3) Deposit accounts associated with or securing lines of credit
where a line of credit is excluded in accordance with
Subsection 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) Deposit accounts standing to the credit of the U.S.
government or its agencies, or any state governments or
their respective agencies, including, without limitation,
"treasury tax and loan" accounts and any other functionally
similar public accounts.
(6) Brokered deposit accounts (consisting of out of market
deposits acquired or arising from a third party "deposit
broker," as such term is defined by the Federal Deposit
Insurance Corporation).
(7) As set forth on Exhibit 1.3(b), all certificates of deposit
which have a current balance of $100,000 or more and which
are, in the mutual
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agreement of the parties hereto, located outside of the
Branch Office's trade area.
(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 upon or after the Effective Time.
Seller makes no representation that, from the date hereof until
Closing, there will not be any loss of Employees, deposits or
customers of the Branch Office.
(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, through
automated teller machines, over the counter or through the check
clearing system or any other 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, to the extent of available funds
in the related deposit accounts and in accordance with the terms
and conditions of such accounts, as in effect from time to time,
the duties, obligations and liabilities 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 Seller for all or any part of
any such assumed Deposit Liabilities, Seller shall not be liable
or responsible for making such payment; provided that, for
purposes of maintaining relationships of the Branch Office
customers, if Seller shall pay the same pursuant to mutually
agreed upon procedures, Purchaser agrees to reimburse Seller for
any such payments, 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. 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 paid by Seller within 60 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, (2) to notify
such depositors and safe deposit box customers, 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 in a manner so as to satisfy all
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requirements imposed by applicable law or governmental
regulation, and (3) to furnish such depositors 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. Seller will notify its affected customers by
letter of the pending assignment of Seller's deposit accounts to
Purchaser, which notice shall be at Seller's cost and expense and
in a form mutually agreeable to Seller and Purchaser. The
Purchaser may provide, at its sole expense, such customers with
notices of changes in terms and other information regarding the
transaction contemplated hereby. The parties shall cooperate and
coordinate such notices, share the costs of any combined mailings
and shall, to the extent practicable, combine mailings.
(g) Purchaser agrees to pay promptly to Seller an amount equivalent
to the amount of any checks, drafts or withdrawal orders credited
to assumed Deposit Liabilities as of the Effective Time that are
returned to Seller after the Effective Time.
(h) On and after 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 pursuant to this Agreement.
(i) On and after the Effective Time, Purchaser will maintain and
safeguard in accordance with applicable law and sound banking
practices all account documents, deposit contracts, signature
cards, deposit slips, canceled items and other records related to
the Deposit Liabilities assumed under this Agreement which Seller
has delivered to Purchaser on or before Closing, 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 (other than certificates of deposit or Individual
Retirement Accounts) assumed under this Agreement as to
transactions occurring through the Effective Time. Seller will be
entitled to impose normal fees and service charges on a per item
basis through Closing, but Seller will not impose periodic fees
or blanket charges in connection with such final statements.
(k) The Purchaser, at its expense, will timely notify all Automated
Clearing House ("ACH") originators of the transfers and
assumptions to be made pursuant to the Agreement as of the
Closing Date. For a period of 60 days beginning on the Effective
Time, Seller will honor, in accordance with applicable laws and
regulations, 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
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electronically transmit such ACH data to Purchaser, provided that
Purchaser shall promptly reimburse Seller for any processed ACH
items. 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 will be returned to the presenting party.
(l) After the Effective Time, Purchaser agrees to use its reasonable
efforts to collect from Purchaser's customers amounts equal to
any debit card connected with a deposit account transferred to
Purchaser and any Visa or MasterCard chargebacks under the
MasterCard and Visa Merchant Agreements between Seller and its
customers or amounts equal to any deposit items on accounts
transferred hereunder and that are 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.
Purchaser agrees to immediately remit to Seller any funds held in
the customer's related transferred deposit account when the
Purchaser receives such notice from the Seller, up to the amount
of the charged back or returned item that had been previously
credited by Seller, if such funds are available in such customer
account at the time of notification by Seller to Purchaser of the
charged back or returned item. Notwithstanding the foregoing,
Purchaser shall have no duty to remit funds for any item or
charge that has been improperly returned or charged to Seller.
(m) Any deposit accounts or other liabilities not expressly assumed
by Purchaser shall be transferred by Seller to one of Seller's
other banking branch offices.
Section 1.4. Reserved.
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Section 1.5. Safe Deposit Business.
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(a) As of the Effective Time, Purchaser will assume and discharge
Seller's obligations with respect to the safe deposit box
business at the Branch Office 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, Purchaser shall maintain and safeguard
the records related to such safe deposit box business, and
Purchaser shall be responsible for granting access to and
protecting the contents of safe deposit boxes at the Branch
Office.
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Section 1.6. Employee Matters.
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(a) Subject to (i) Purchaser's review of the employees of the Branch
Office (the "Employees") and their respective employment records
and personnel files, and (ii) termination for cause, Purchaser
shall hire all Employees employed by Seller at the Branch Office
at the Effective Time, except the Branch Office Manager, who
Seller has requested to retain. Purchaser will hire such
Employees in their then current functional positions at the
Branch Office with remuneration comparable to then current levels
(subject to normal salary increases), and, to the extent
permitted by Purchaser's existing benefit, welfare and vacation
plans, Purchaser will allow such Employees to participate in such
plans to the full extent permitted by such plans and by
applicable law. Except as may be prohibited by Purchaser's
benefit plans and policies and applicable law, the Employees
shall receive full credit for their prior service with Seller
under Purchaser's benefit plans and policies, including 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, to the extent permitted by
Purchaser's employee benefit plans and applicable law, 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.
(b) Seller makes no representations or warranties about whether any
of the Employees will remain employed at the Branch Office after
the date hereof or upon or after the Effective Time. Seller will
use its reasonable efforts to maintain the Employees as employees
of Seller at the Branch Office until the Effective Time.
Purchaser shall use its reasonable efforts to cause the Employees
to agree to become employees of Purchaser. 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, and Purchaser shall have no liability therefor.
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) Each Employee who continues his employment with Purchaser after
the Effective Time and who is a participant in Seller's employee
benefit plans at the Effective Time shall receive all benefits in
accordance with Seller's plans in which he or she participates,
to the extent that such benefits are vested at the Effective
Time, and to the extent that such benefits are properly
distributable under the terms of such plans.
(d) To aid in the transition, Seller agrees to cooperate with
Purchaser in complying with all state and federal statutory
requirements regarding the
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administering of Seller's employee benefit plans in connection
with the transactions contemplated hereby.
(e) Purchaser shall pay, to each Employee who continues to be
employed with Purchaser for a period of 45 days following
Closing, a one-time transition bonus equal to two weeks of such
Employee's salary at the time of Closing.
Section 1.7. Records and Data Processing.
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(a) As of the Effective Time, Purchaser shall become responsible for
maintaining the files, documents and records referred to in this
Agreement and delivered to Purchaser by Seller. 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 reasonable
times 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) Upon and following the Effective Time, Seller will preserve and
safekeep any records, files and documents related to the Branch
Office and retained by Seller after the Effective Time, the
predecessor banks, and the transferred assets and liabilities
transferred hereby, as required by applicable law and sound
banking practices for the joint benefit of Seller and Purchaser.
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.
Section 1.8. Security.
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As of and after the Effective Time, Purchaser shall be solely responsible
for the security of and insurance on all persons and property located in or
about the Branch Office and relating to the assets assigned to, and
liabilities assumed by, Purchaser hereunder.
Section 1.9. Taxes and Fees, Proration of Certain Expenses.
----------- ---------------------------------------------
Purchaser shall be responsible and liable for the payment of all filing and
recordation fees and taxes related to this transaction; except that
Purchaser shall not be responsible for, or have any liability with respect
to, income or similar taxes upon the Seller arising out of this
transaction, if any, and Seller agrees that it shall pay, or represents
that it has paid, in a timely manner before delinquency any and
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all such taxes. Except as otherwise set forth herein, Purchaser shall not
be responsible for any tax liabilities of Seller arising from the business
or operations of the Branch Office before the Effective Time, and Seller
shall not be responsible for any tax liabilities of Purchaser arising from
the business or operations of the Branch Office after the Effective Time.
Utility payments, telephone charges, real property taxes, personal property
taxes, rent, salaries, deposit insurance premiums, other ordinary operating
expenses of the Branch Office and other expenses and taxes 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,
Purchaser shall pay to Seller such amounts as are necessary to effect a
proportionate monetary adjustment in favor of Seller.
Section 1.10. Real Property.
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(a) Seller agrees to deliver to Purchaser as soon as reasonably
practical after the execution of this Agreement copies of all
title information in possession of or reasonably available to
Seller, if any, including but not limited to title insurance
policies, attorney's opinions on title, surveys, covenants,
deeds, notes and deeds of trust 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, and Seller hereby
expressly disclaims any such warranty..
(b) Purchaser shall obtain at its expense, within 30 days of the date
of this Agreement, a title opinion to the Real Property.
Purchaser agrees to notify Seller in writing within 30 days of
Purchaser's receipt of a title opinion of any mortgages, pledges,
environmental matters, material liens, encumbrances,
restrictions, reservations, tenancies, encroachments, overlaps or
other title exceptions or zoning or similar land use violations
related to the Real Property and materially and adversely
affecting its value to which Purchaser reasonably objects
(collectively, the "Title Defects"). Purchaser agrees that Title
Defects shall not include real property taxes not yet due and
payable and easements and rights of way of record which do not
materially interfere with the use of the Real Property as a
Branch Office. Seller shall make a good faith effort to correct
any such Title Defect to Purchaser's reasonable satisfaction at
least 10 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 that Seller does not dispute in
good faith) to cure a Title Defect. If Seller is unable to cure
any such Title Defects to Purchaser's reasonable satisfaction,
Purchaser shall have the option to terminate this Agreement. 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.
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(c) Purchaser shall have the right to update title matters at Closing
for any changes which may have arisen since the date of Seller's
original title search. If such update indicates any new Title
Defects, Seller may elect upon notice to Seller specifying the
new Title Defects, if any, to delay the Closing for up to 30 days
while Seller makes a good faith effort to cure any such Title
Defect to Purchaser's reasonable satisfaction; provided Seller
shall not be obligated to bring any suit or action or make any
payments of money (except to pay liens that Seller does not
dispute in good faith) to cure a Title Defect. If Seller is
unable to cure any such Title Defect within such 30 day period,
Purchaser shall have the option to terminate this Agreement, in
which event neither party shall have any further liability to the
other party under this Agreement.
(d) Purchaser shall have the right to conduct such investigation of
environmental matters with respect to the Real Property as it may
reasonably require and shall report the results of any such
investigation to Seller no later than 45 days after the date of
this Agreement; provided, however, that without the prior written
consent of Seller, Purchaser shall not conduct any ground water
monitoring or install any test well or undertake any other
investigation which requires 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 Seller either refuses to give
such written consent or refuses to cure any material violation of
law relating to the environment, Purchaser shall have the option
to terminate this Agreement, in which event neither party shall
have any further liability to the other under this Agreement.
Purchaser hereby agrees to indemnify and hold harmless Seller,
its officers, directors, agents, employees, attorneys,
representatives and contractors from and against any and all
damages to property or persons arising directly out of
Purchaser's investigation of the Real Property as permitted
herein.
ARTICLE II
----------
CLOSING AND EFFECTIVE TIME
--------------------------
Section 2.1. Dates.
----------- -----
The purchase of assets and assumption of liabilities provided for in this
Agreement shall occur at a closing (the "Closing") to be held at 10:00 A.M.
local time at a mutually acceptable place as soon as practicable and upon,
or after, the date all necessary approvals by the applicable regulatory
agencies have been issued, and all statutory waiting periods related to
such regulatory approvals have expired. The transactions contemplated
herein shall become effective at 2:00 p.m. local time, or such other time
as the parties may mutually agree, on the business day on which
-11-
the Closing occurs (the "Effective Time"), which shall be a Friday.
Notwithstanding the foregoing language, both Purchaser and Seller agree to
act in good faith and to pursue these transactions diligently and
expeditiously with a view to completing the transactions contemplated by
this Agreement as soon as practicable and with the Effective Time to be on
or before September 1, 1999.
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), (9) and (10), make reasonably
available to Purchaser:
(1) Limited warranty deeds, being mutually and reasonably
acceptable to Purchaser and Seller, transferring title to
the Real Property to Purchaser;
(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 Assets;
(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 Leased Equipment, the Safe Deposit
Contracts, and in the Deposit Liabilities;
(4) Consents from third persons that are necessary to effect
the assignments set forth in the Assignment and Assumption
Agreement, including, but not limited to, the lessors of
the Leased Equipment (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
Branch Office;
(6) Seller's files and records related to the Deposit
Liabilities assumed by Purchaser;
(7) Immediately available funds in the net amount shown as
owing to Purchaser by Seller on the Closing Statement, if
any;
-12-
(8) The Coins and Currency;
(9) Such of the other assets to be purchased as are capable of
physical delivery;
(10) A certificate of a proper officer of Seller, dated as of
the Effective Time, 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;
(11) Certified copies of (A) the Charter and Bylaws of Seller,
and (B) a resolution of the Seller's Board of Directors,
or its Executive Committee, approving the sale of the
assets and the assumption of the liabilities contemplated
hereby;
(12) 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; and
(13) A Closing Statement, substantially in the form attached
hereto as Exhibit 2.2(b)(14) (the "Closing Statement").
(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, executed by duly
authorized officers of Purchaser and Seller;
(2) A certificate of receipt acknowledging the delivery and
receipt of possession of the property and records referred
to in this Agreement, and final title opinion(s) with
respect to the Branch Office's Real Property;
(3) Immediately available funds in the net amount shown as
owing to Seller by Purchaser on the Closing Statement, if
any;
(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;
-13-
(5) Certified copies of (A) the Charter and Bylaws of the
Purchaser, and (B) a resolution of the Board of Directors,
or its Executive Committee, of Purchaser approving the
purchase of the assets and the assumption of the
liabilities 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.
(8) A certificate, in a form agreeable to Seller, confirming
the financial condition of Purchaser.
(d) All instruments, agreements and certificates described in this
Section 2.2 shall be in form and substance reasonably
satisfactory to the parties.
Section 2.3. Adjustments.
----------- -----------
(a) Not later than 15 business 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 generally accepted accounting
principles reflecting the assets sold and assigned and the
liabilities transferred and assumed hereunder (the "Post-Closing
Balance Sheet"). Seller shall afford Purchaser and its
representatives the opportunity to review all work papers and
documentation used by Seller in preparing the Post-Closing
Balance Sheet. Within 15 business days following the Post-Closing
Balance Sheet Delivery Date (the "Adjustment Payment Date"),
Seller and Purchaser shall effect the transfer of any funds as
may be necessary to reflect 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. 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 Federal Funds Rate.
-14-
(c) The "Federal Funds Rate" shall be the mean of the high and low
rates quoted for Federal Funds under "Money Rates" in The Wall
Street Journal, Southeastern Edition adjusted daily 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, defend and hold harmless Purchaser from and against
any breach by Seller of any representation, warranty or obligation
contained herein and in the Exhibits hereto and all claims, losses,
liabilities, demands and obligations, including reasonable attorneys' fees
and expenses, arising out of any actions, suits or proceedings commenced or
which arise from or relate to matters occurring prior to the Effective Time
(other than proceedings, actions, suits or protests seeking to prevent or
limit the consummation of the transactions contemplated hereunder) relating
to the ownership of, or operations at the Branch Office; 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 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 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 and which are not expressly assumed by
Purchaser hereunder, or which arise out of any actions, suits or
proceedings commenced on or after the Effective Time and which relate to
the ownership of, or operations at the Branch Office prior to the Effective
Time and which are not expressly assumed by Purchaser hereunder.
Section 3.2. Purchaser's Indemnification of Seller.
----------- -------------------------------------
Purchaser shall indemnify, defend and hold harmless Seller from and against
any breach by Purchaser of any representation, warranty or obligation
contained herein and in the Exhibits hereto and all claims, losses,
liabilities, demands and obligations, including 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 salaries, rents and utility charges), which
Seller may (i) incur in connection with operations and transactions
occurring after the Effective Time and (ii) which involve, subsequent to
the Effective Time, the Branch Office, the assets transferred or the
liabilities assumed pursuant to this Agreement.
-15-
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 the first
anniversary of 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 12 month period, the indemnity relating to
such claim shall survive until such claim is finally resolved.
The foregoing indemnities shall terminate and be of no further
force and effect as to any claims not made within such 12 month
period, provided that this section shall not relieve Purchaser of
any of its obligations with respect to liabilities and
obligations expressly assumed hereunder.
(b) In the event that any person or entity not a party to this
Agreement shall make or threaten any demand, claim, action, suit,
protest, or other proceeding or litigation which 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
Section 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, action, suit,
protest, or other proceeding or litigation. In the event that the
indemnifying party shall fail to respond within five business
days after receipt of such notice of any such demand, claim,
action, protest, or other proceeding or litigation, then the
indemnified party shall retain counsel and conduct the defense of
such demand, claim, action, protest, or other proceeding or
litigation as it may in its discretion deem proper, at the cost
and expense of the indemnifying party. In effecting the
settlement or compromise of any such proceeding, 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
business days of its receipt of the notice of such proposed
settlement or compromise).
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 $5,000. Once such
aggregate amount exceeds $5,000, such party shall thereupon be entitled to
indemnification for all amounts in excess of such $5,000. In addition, the
parties shall have no obligations under this Article III for any
consequential liability, damage or loss the indemnified party may suffer.
-16-
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
12 months:
Section 4.1. Corporate Organization.
----------- ----------------------
Seller is a savings association duly organized, validly existing and in
good standing under the laws of the United States. 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.
Section 4.2. No Violation.
----------- ------------
The Branch Office 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 Charter or
Bylaws; (b) any material 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; (c) any material statute, law, decree, regulation or order
of any governmental or regulatory authority, or (d) any material 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 in
accordance with its terms.
Section 4.5. 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,
-17-
liens, security interests, pledges or encumbrances thereon of any kind,
except as may otherwise be set forth in this Agreement and the Exhibits
hereto.
Section 4.6. Real Property.
----------- -------------
Seller makes the following representations and warranties regarding the
Real Property:
(a) Seller has no knowledge of any condemnation proceedings pending
against the Real Property.
(b) Seller has not entered into any agreement regarding the Real
Property, and, to Seller's knowledge, neither Seller nor the Real
Property is subject to any claim, demand, suit, unfiled lien,
proceeding or litigation of any kind, pending or outstanding, or
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 except for real property taxes
not yet due and payable, and easements and rights of way and
other matters of record which do not materially interfere with
the current use of the Real Property by Seller or the use of the
Real Property by Purchaser in a like capacity. Purchaser's sole
remedy for a breach of the representations and warranties in this
Section 4.7 shall be to elect not to purchase the Real Property
as provided in Section 1.10.
-18-
Section 4.7. Year 2000 Compliance
------------ --------------------
Seller has made and is making inquiries of its software and data processing
providers with respect to Year 2000 compliance, and is in compliance in all
material respects with the FFIEC Interagency Statement, "Guidance
Concerning Institution Due Diligence in Connection with Service Provider
and Software Vendor Year 2000 Readiness" (March 17, 1998) (the "Interagency
Statement") and the "Interagency Guidelines Establishing Year 2000
Standards for Safety and Soundness" (September 29, 1998) (the "Interagency
Guidelines"), as such requirements apply to the assets transferred and
liabilities assumed hereunder, or otherwise to the transaction contemplated
hereby.
Section 4.8. Reserved.
----------- --------
Section 4.9. Proceedings and Information.
----------- ---------------------------
Except as specifically disclosed on Exhibit 4.9, there are no proceedings,
actions, claims, suits or liabilities which relate to the Branch Office or
any of the assets to be purchased by Purchaser hereunder or the liabilities
to be assumed by Purchaser hereunder with respect to the Branch Office, or
which are related to the transactions contemplated by this Agreement or
which question the validity of this Agreement or the transactions
contemplated hereby; and there are no known Employee disputes or labor
relations problems with respect to any Branch Office Employees.
Section 4.10. Reporting and Tax Withholding Documents.
------------ ---------------------------------------
The Seller, and its subsidiaries, are in compliance in all material
respects with, and its records contain all information and documents
(including properly completed IRS Forms W-9) necessary to comply with, all
applicable information reporting and Tax withholding requirements under
federal, state, and local tax laws with respect to all assets transferred
and liabilities assumed by Purchaser hereby, and such records identify with
specificity all accounts to be transferred to Purchase hereby that are
subject to backup withholding under Section 3406 of the Internal Revenue
Code of 1986, as amended.
Section 4.11. Condition of Property
------------ ---------------------
Except as may be expressly represented or warranted in this Agreement by
Seller, Seller makes no representations or warranties whatsoever with
regard to any assets being transferred to Purchaser or any liability or
obligation being assumed by Purchaser or as to any other matter, or
transaction. Except as expressly set forth herein, including, without
limitation, the provisions of Sections 4.6 and 6.4, the (i) Purchaser is
purchasing the Real Property and the Personal Property in their existing
condition "AS IS, WHERE IS, AND WITH ALL FAULTS"; (ii) Seller
-19-
has not obligation for any defects or to repair the same; (iii) Seller has
specifically bargained for the assumption by Purchaser of all
responsibility to inspect and investigate the Real Property; and (iv) prior
to the Closing, Purchaser will have undertaken all such physical
inspections and examinations of the Real Property as Purchaser deems
necessary or appropriate. The provisions of this Section 4.11 shall not
relieve Seller of any representations, warranties or obligations expressly
set forth elsewhere herein, and, to the extent that the provisions of this
Section 4.11 conflict with any other express provisions of this Agreement,
such other provisions shall control.
Section 4.12. Consents and Approvals.
------------ ----------------------
Except for the regulatory approvals set forth in Section 7.4 of this
Agreement, no consents or approvals, or filings or registrations with any
third party or any governmental entity are necessary in connection with
Seller's consummation of the transactions contemplated by this Agreement
other than what may be necessary as a result of any facts or circumstances
relating solely to Purchaser.
Section 4.13. 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
transaction.
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
12 months:
Section 5.1. Corporate Organization.
----------- ----------------------
Purchaser is a bank, 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 and assets 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 Charter or Bylaws of Purchaser, (b) any material provision of any
material agreement or any other material restriction of any kind to which
Purchaser is a party or by which
-20-
Purchaser is bound, or (c) any material statute, law, decree, regulation or
order of any governmental authority, or (d) any material provision which
will result in a default under, or cause the acceleration of the maturity
of, any material obligation or loan to which Purchaser is a party.
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 Board of
Directors (or Executive Committee) of Purchaser. 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 in accordance with its terms.
Section 5.5. Proceedings and Information.
----------- ---------------------------
Except as specifically disclosed on Exhibit 5.5, there are no proceedings,
actions, claims, suits or liabilities pending, or, to Purchaser's
knowledge, threatened, which are related to the transactions contemplated
by this Agreement or which question the validity of this Agreement or the
transactions contemplated hereby.
Section 5.6. Consents and Approvals.
----------- ----------------------
Except for the regulatory approvals set forth in Section 7.4 of this
Agreement, no consents or approvals, or filings or registrations with any
third party or any governmental entity are necessary in connection with
Purchaser's consummation of the transactions contemplated by this Agreement
other than what may be necessary as a result of any facts or circumstances
relating solely to Seller.
Section 5.7. Financing.
----------- ---------
Purchaser has sufficient funds available to it to purchase the assets and
assume the liabilities of the Branch Office in accordance with the
provisions of this Agreement.
-21-
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
Branch Office in order that Purchaser may have full opportunity to make
reasonable inquiries, at reasonable times, without interfering with the
normal business and operations of the Branch Office or the affairs of
Seller relating to the Branch Office. The officers of Seller shall furnish
Purchaser with such additional financial and operating data and other
information as to its business and properties at the Branch Office, 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. 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 depositor information and other files, relating to the
Deposit Liabilities and/or the transferred assets will be made available
for review by Purchaser through Closing. The purpose of this paragraph is
not to create a condition to closing but merely to facilitate the
information related to regulatory approvals and the transition to new
ownership.
In addition, Seller shall afford to the employees or representatives of
Purchaser, during normal business hours or at such other times as shall be
mutually agreed upon by Seller and Purchaser, access to the Branch Office,
the Employees and the fixtures and equipment at the Branch Office in order
for Purchaser to begin training the Employees and to begin conversion and
installation of computer, data processing, communication and other
equipment.
Section 6.2 Delivery of Magnetic Media Records; Cooperation.
----------- -----------------------------------------------
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 45 days prior to the anticipated Closing Date 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 other times before and after
Closing as agreed to by the parties. The Seller shall cooperate, and shall
direct its third-party processors to cooperate, with the Purchaser and its
third-party processors to coordinate and complete all necessary data and
systems conversions in a timely manner.
-22-
Section 6.3. Applications for Approval to Effect Purchase of Assets and
----------- ----------------------------------------------------------
Assumptions of Liabilities.
--------------------------
Purchaser shall use its best efforts to prepare and file, as soon as
practicable and in any event within 30 days from the date hereof, all
applications required by law with the appropriate regulatory authorities
for approval to purchase and assume the aforesaid assets and liabilities,
to establish a branch at the location of the Branch Office, and to effect
in all other respects the transactions contemplated herein. Purchaser
agrees to process such applications diligently 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 all reasonable efforts to obtain all necessary regulatory
approvals promptly. Seller shall provide such assistance and information
to Purchaser as shall be reasonably requested by Purchaser to comply with
the requirements or reasonable requests of the applicable regulatory
authorities.
Section 6.4. Conduct of Business; Maintenance of Properties.
----------- ----------------------------------------------
From the date hereof until the Effective Time, Seller covenants that it
will:
(a) Except as expressly provided herein, carry on the business of the
Branch Office 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 or loans will be retained at the Branch Office; provided,
however, that Seller will not, advertise or promote new or
substantially new customer services or products in the market area of
the Branch Office, except where it deems it necessary to meet
competition in the market area served by the Branch Office, and except
that these restrictions shall not restrict general mass mailings,
telemarketing calls, statement stuffers and other similar
communications directed generally to current customers of Seller or
Seller's affiliates, or to the public or newspaper, radio or
television 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;
(b) Cooperate with and assist Purchaser in assuring the orderly transition
of the business of the Branch Office to Purchaser from Seller; and
(c) Maintain the Real Property and the Personal Property in its current
condition, ordinary wear and tear excepted.
-23-
(d) not issue any new deposit or loan products at the Branch Office that
Purchaser will not be able to offer upon and following the Effective
Time.
Section 6.5. No Solicitation by Seller; etc.
----------- ------------------------------
For a period of six months after the Effective Time, Seller will not
specifically target and solicit customers of the Branch Office utilizing
any customer or mailing list which consists primarily of customers of the
Branch Office; provided, however, these restrictions shall not restrict
general mass mailings, telemarketing calls, statement stuffers and other
similar communications directed generally to current customers of Seller or
Seller's affiliates, or to the public or newspaper, radio or television
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 the solicitation of commercial accounts normally established
and maintained in other than the Branch Office. For a period of one year
following the Effective Time, Seller and its affiliates shall not conduct a
banking business from a banking office that is located within three (3)
miles of the Branch Office, except that this restriction shall not prohibit
Seller or its affiliates from operating any banking business obtained
through acquisition by Seller where the business that is not located within
three (3) miles of the Branch Office is not a material part of such an
acquisition by Seller. Nothing in this Section 6.5 is intended to or shall
require Seller to disclose any confidential or nonpublic information to
Purchaser, and if disclosed, such information shall be held by Purchaser
strictly confidential.
Section 6.6. Further Actions.
----------- ---------------
The parties hereto shall execute and deliver such documents and instruments
and take such other actions as the other party may reasonably require in
order to carry out the intent of this Agreement. The parties shall
cooperate with each other in furtherance of this Agreement and the
transactions contemplated hereunder.
Section 6.7. Fees and Expenses.
----------- -----------------
Purchaser shall be responsible for its own attorneys' and accountants' fees
and expenses, recording costs, transfer fees, documentary stamps, and other
expenses it incurs in connection with its purchase of the Branch Office and
the transactions contemplated hereby. Purchaser shall be responsible for
the costs of all title examinations and opinions and surveys. Seller shall
be responsible for its own attorneys' and accountants' fees and expenses
related to the transactions contemplated by this Agreement.
-24-
Section 6.8. Breaches with Third Parties.
----------- ---------------------------
If the assignment of any material claim, contract, license, lease or
commitment (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 6.9. Insurance.
----------- ---------
As of the Effective Time, Seller will discontinue its insurance coverage
maintained in connection with the Branch Office and the activities
conducted thereon. Purchaser shall be responsible for all insurance
protection for the Branch Office's premises and the activities conducted
thereon immediately following the Effective Time. Pending the Closing,
risk of loss shall be the responsibility of Seller.
Section 6.10. 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; provided, this obligation shall not be deemed
to prohibit any party from making any disclosure that such party deems
reasonable necessary in order to fulfill such party's (or such party's
parent corporation's) disclosure obligations under applicable law or
regulations.
Section 6.11. 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 and other reporting obligations with
respect to the holding of transferred assets and liabilities after the
Effective Time. The Purchaser does not intend to and shall not hereby
assume any liability for any failure by the Seller to meet such obligations
hereunder.
Section 6.12. Certain Actions.
------------ ---------------
Seller, and its directors, senior officers and principal shareholders, will
not solicit, seek, negotiate, or enter into any other agreements,
arrangements or understandings, whether or not binding, or permit any other
person or entity to conduct any diligence or other reviews regarding the
Branch Office, with respect to the sale of the Branch Office, or the sale
of all or substantially all (25% or more) of any of the Branch Office's
assets, deposits or business (herein, collectively, a "Sale").
-25-
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 Effective
Time, 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 by
Purchaser.
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 and agreements required by this Agreement to
be performed or complied with by it prior to or at the Effective Time.
Section 7.3. No Adverse Proceedings.
----------- ----------------------
At the Effective Time, no actions, suits or proceedings shall be pending or
threatened against Seller which is reasonably likely to materially and
adversely affect the business, properties and assets of the Branch Office.
Section 7.4. Regulatory Approval.
----------- -------------------
(a) Purchaser shall have received all necessary regulatory approvals
of the transactions contemplated in this Agreement, all notice
and waiting periods required by law to pass shall have passed, no
judicial, regulatory or other governmental orders or actions
enjoining, restraining, prohibiting or invalidating such
transactions shall have been issued and remain in effect or
unstayed.
(b) Such approvals shall not have imposed any condition which is
materially disadvantageous or burdensome to Purchaser.
-26-
Section 7.5. No Material Adverse Change.
-----------
At the Effective Time, there shall have been no material adverse change
with respect to the Branch Office, individually or collectively, or to the
Seller. A "Material Adverse Change" shall be defined as an event, change
or occurrence which, individually, or together with any other event, change
or occurrence, has a material adverse effect on (i) the financial position,
business, or results or operations of the Branch Office, or (ii) the
ability of Seller or the Branch Office to perform their respective
obligations under this Agreement, but shall not include any loss of
Employees, deposits or customers of the Branch Office in connection with
the transactions contemplated hereby; provided, however, that a Material
Adverse Change shall be deemed to occur if, at the time of Closing, either
of the following occurs: (i) the Branch Office does not employ at least one
(1) customer service representative and at least one (1) teller, each of
whom have been employed in such capacity at the Branch Office for a
successive period of at least three months, or (ii) the closing balance of
the deposit accounts (including accrued but unpaid interest), including
Individual Retirement Accounts, at the Branch Office on the business date
immediately preceding the date of Closing is less than 66.6% of the closing
balance of the deposit accounts (including accrued but unpaid interest),
including Individual Retirement Accounts, at the Branch Office on the
business date immediately preceding the date hereof.
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 Effective Time, 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
by Seller.
Section 8.2. Obligations Performed.
----------- ---------------------
Purchaser shall (a) deliver to Seller those item required by Section 2.2
hereof and (b) perform and comply in all material respects with all
obligations and agreements required by this Agreement to be performed or
complied with by it prior to or on the Effective Time.
-27-
Section 8.3. No Adverse Proceedings.
----------- ----------------------
As of the Effective Time, no actions, suits or other proceedings shall be
pending or threatened against Purchaser or Seller which might materially
and adversely affect the transactions contemplated herein.
Section 8.4. Regulatory Approval.
----------- -------------------
(a) Purchaser shall have received from the appropriate regulatory
authorities all regulatory approvals required by law to purchase
and assume the assets and liabilities, to establish branches at
the locations of the Branch Office, and to effect in all other
respects the transactions contemplated herein, all waiting
periods required by law to pass shall have passed, no actions,
suits, protests or other proceedings to enjoin, restrain,
prohibit or invalidate such transactions shall have been
instituted or threatened, and all 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.l. Methods of Termination.
----------- ----------------------
This Agreement may be terminated in any of the following ways:
(a) by either Purchaser or Seller, in writing 5 days in advance of
such termination, if the Closing has not occurred by September 1,
1999;
(b) at any time on or prior to the Effective Time by the mutual
consent in writing of Purchaser and Seller;
(c) 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 15 days following the date of all
approvals by regulatory agencies and after all statutory waiting
periods have expired, and in no event later than September 1,
1999;
(d) 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 15 days following the date of all
approvals by regulatory agencies and after all statutory waiting
periods have expired, and in no event later than September 1,
1999;
-28-
(e) at any time on or 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 days after the giving of notice to the breaching
party of such breach or the Effective Time.
(f) by Seller in writing at any time after any applicable regulatory
authority has denied by final action any application of Purchaser
for approval of the transactions contemplated herein, or in the
event of any action, suit, protest or proceeding (excluding any
third-party protests that do not name Seller or affect Seller's
operations) that seeks to delay, limit or prohibit the
transactions contemplated herein.
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 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.
Section 9.3. Payment of Expenses.
----------- -------------------
Should the transactions contemplated herein not be consummated because
of a party's willful and intentional breach of its representations,
warranties and covenants set forth in 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
-29-
outside legal, accounting, consulting and other out-of-pocket expenses,
in an amount up to, but not to exceed, $25,000.
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 or 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 covenant and agree that all information received by
either of them with respect to the business of the other is subject to the
confidentiality provisions (the "Confidentiality Provisions") set forth in
a Letter of Intent between Seller and Purchaser, dated as of March 1, 1999,
and shall not at any time be used for any business purpose or disclosed by
such party to third persons. This covenant and the Confidentiality
Provisions shall survive in full force and effect the consummation of the
transactions contemplated herein or the earlier termination of this
Agreement.
-30-
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: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Group President
▇▇▇▇▇▇ Federal Bank
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to Purchaser: J. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
Crescent Bank & Trust Company
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, III
▇▇▇▇▇▇ & Bird LLP
One Atlantic Center
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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 10.5.
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.
-31-
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. Expenses.
------------ --------
Except as otherwise specifically provided in this Agreement, all legal,
accounting and other costs and expenses incurred in connection with the
execution, delivery and performance of this Agreement and of the
transactions contemplated hereby shall be borne and paid by the party
incurring such costs and expenses, and neither party shall be obligated for
any cost or expense incurred by the other party.
Section 10.10. Time is of the Essence.
------------- ----------------------
The parties hereto acknowledge that time is of the essence with respect to
the performance of this Agreement, and the consummation of the transactions
contemplated herein.
Section 10.11. Cover, Index and Headings, Etc.
------------- ------------------------------
The cover, index and headings contained in this Agreement are for
convenience and reference only and shall not effect the meaning or
interpretation thereof. The use of the singular in this Agreement shall be
deemed to be or include the plural (and vice-versa), as appropriate.
Wherever the words "include," "including" or any derivations thereof are
used, each shall mean including without limitation by reason of any
enumeration.
-32-
Section 10.12. Broker, Finder, and Investment Banker Fees.
------------- ------------------------------------------
Purchaser and Seller each represent to each other that, except for the fees
and expenses that Seller will pay to Mr. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ for his services
as a "finder," no broker, finder, investment banker, or similar person has
been employed by or has acted for and in connection with this Agreement of
the transactions contemplated hereby, except as provided in this paragraph.
Each party agrees to indemnify and hold harmless and defend the other
against all losses, costs, damages and expenses arising out of any claims
or proceedings from fees or commissions of brokers, finders, investment
bankers or similar persons who claim to have been employed or engaged by
such party or entitled to compensation as a result of the transactions
contemplated herein. Seller has engaged the services of Mr. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ as a "finder," and owes ▇▇. ▇▇▇▇▇▇▇ a fee in connection with the
transactions contemplated herein, and shall indemnify, defend and hold
harmless Purchaser against any claims by ▇▇. ▇▇▇▇▇▇▇ or otherwise in
connection herewith.
Section 10.13. Office Space.
------------- ------------
Seller shall provide, at no cost to Purchaser, pending the Closing, such
office space at the Branch Office as the Purchaser may reasonably request.
Section 10.14. Severability.
------------- ------------
If any provision of this Agreement is invalid or unenforceable, it shall be
adjusted so as to be enforceable to the fullest extent permitted by
applicable law. Notwithstanding the foregoing, if any provision of this
Agreement is invalid or unenforceable, the balance of this Agreement shall
remain in effect.
Section 10.15. No Third Party Beneficiaries.
------------- ----------------------------
Nothing in this Agreement, express or implied, including, without
limitation, Section 1.6, is intended to or shall be construed to confer
upon or give to any person not a party hereto any rights or remedies
hereunder, whether as a third party beneficiary or otherwise.
Section 10.16. Entire Agreement.
------------- ----------------
This Agreement and the exhibits and attachments hereto represent the sole
agreement between the parties hereto respecting the matters addressed
herein, and all prior or contemporaneous written or oral proposals,
agreements in principle, representations, warranties and understandings
between the parties are superseded hereby and merged herein.
[Signatures on next page]
-33-
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.
▇▇▇▇▇▇ FEDERAL BANK
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Group President
CRESCENT BANK & TRUST COMPANY
By: /s/ J. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
----------------------------------
Name: J. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
Title: President and
Chief Executive Officer
-34-
Exhibit 1.1(b)
Excluded Assets
[TO BE PROVIDED]
Exhibit 1.3(b)
Certificates of Deposit Not
Assumed by Purchaser
[TO BE PROVIDED]
Exhibit 2.2(b)(2)
▇▇▇▇ of Sale
THIS ▇▇▇▇ OF SALE is dated this ___ day of ______, 1999, by ▇▇▇▇▇▇ Federal
Bank, a savings association organized and existing under the laws of the United
States ("Seller").
W I T N E S S E T H:
-------------------
WHEREAS, Seller and Crescent Bank & Trust Company, a bank organized and
existing under the laws of the State of Georgia, ("Purchaser") have entered into
a Branch Purchase and Assumption Agreement dated as of __________, 1999, (the
"Agreement"). All capitalized terms used herein but not defined shall have the
meanings ascribed to them by the Agreement;
WHEREAS, the Agreement provides, among other things, for the sale by Seller
to Purchaser of the Assets of the Branch Office;
NOW, THEREFORE, Seller, for good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, does hereby grant, sell, convey
and deliver to Purchaser, and Purchaser's successors and assigns, to have and
hold forever, all of Seller's right, title and interest in and to the Assets;
and
FURTHER, Seller grants, sells, conveys and delivers unto Purchaser all of
the Assets subject to the representations, warranties and covenants made by
Seller under the Agreement, and all such representations, warranties and
covenants in the Agreement are fully incorporated herein as if such
representations, warranties and covenants were fully set forth herein.
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.
▇▇▇▇▇▇ FEDERAL BANK (SELLER)
[SEAL]
By:
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Group President
ATTEST:
By:
------------------------------
Name:
Title:
Signed, sealed and delivered on
this _____ day of ___________, 1999,
in the presence of:
-------------------------------------
Notary Public
My Commission Expires: ______________
[NOTARY SEAL]
-2-
Exhibit 2.2(b)(3)
Assignment and Assumption Agreement
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT is entered into this ______ day of
______________, 1999, by and between ▇▇▇▇▇▇ Federal Bank, a savings association,
organized and existing under the laws of the United States ("Seller"), and
Crescent Bank & Trust Company, a bank organized and existing under the laws of
the State of Georgia ("Purchaser").
W I T N E S S E T H:
-------------------
WHEREAS, Seller and Purchaser have entered into a Branch Purchase and
Assumption Agreement, dated as of ________________, 1999, (the "Agreement").
All capitalized terms used herein but not defined shall have the meanings
ascribed to them by the Agreement;
NOW, THEREFORE, in consideration of the foregoing, and for other good and
valuable consideration, the 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 interest to, and Purchaser does hereby assume all of
Seller's liabilities and obligations in connection with, the Assets, the Leased
Equipment, the Safe Deposit Contracts and the Deposit Liabilities, in each case
subject to the exclusions and provisions set forth in the Agreement.
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.
▇▇▇▇▇▇ FEDERAL BANK
(SELLER)
[SEAL]
By:
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Group President
ATTEST:
By:
--------------------------------
Name:
Title:
CRESCENT BANK & TRUST COMPANY
(PURCHASER)
[SEAL]
By:
---------------------------------
Name: J. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
Title: President
ATTEST:
By:
---------------------------------
Name:
Title:
Signed, sealed and delivered on
this _____ day of ___________, 1999,
in the presence of:
-------------------------------------
Notary Public
My Commission Expires: ______________
[NOTARY SEAL]
-2-
Exhibit 2.2(b)(14)
Closing Statement
(Pre-Closing Balance Sheet as of ______________, 1999)/1/
Cash due Purchaser for:
Deposit liabilities (including
accrued but unpaid interest) $
--------------------
Total Cash due Purchaser $
--------------------
Cash due Seller for:
Net Book Value of
Real Property and Personal Property $
--------------------
Coins and currency (face amount) $
--------------------
Pro rata adjustment for real and
personal property taxes and
other expenses $
--------------------
Deposit Premium $
--------------------
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 Branch Purchase
and Assumption Agreement between Seller and Purchaser dated as of ___________,
1999 (the "Agreement"). Seller and Purchaser agree to make subsequent
adjustments to the extent necessary in accordance with Section 2.3 of the
Agreement.
--------------------------
/1/ Amounts paid at Closing shall be subject to subsequent adjustment based on
the Post-Closing Balance Sheet.
Accepted and agreed, this _______ day of __________, 1999.
▇▇▇▇▇▇ FEDERAL BANK
(SELLER)
[SEAL]
By:
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Group President
ATTEST:
By:
---------------------------
Name:
Title:
CRESCENT BANK & TRUST COMPANY
(PURCHASER)
[SEAL]
By:
--------------------------------
Name: J. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
Title: President
ATTEST:
By:
-------------------------------
Name:
Title:
-2-
Exhibit 4.9
Proceedings and Information - Seller
None.
Exhibit 5.5
Proceedings and Information - Purchaser
None.