EXHIBIT 10.21
AGREEMENT FOR
PURCHASE OF CERTAIN ASSETS AND
ASSUMPTION OF CERTAIN LIABILITIES
BETWEEN
THE CENTRAL AND SOUTHERN BANK
OF NORTH GEORGIA, FSB
AND
THE CENTRAL AND SOUTHERN BANK OF GEORGIA
DATED
AUGUST 11, 1997
TABLE OF CONTENTS
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ARTICLE I
PURCHASE AND SALE OF ASSETS AND
ASSUMPTION OF DEPOSIT LIABILITIES
1.01 Sale of Assets.............................................................1
1.02 Assignment and Assumption of Deposit Liabilities...........................2
1.03 Purchase Price for Real Property, Personal Property and Purchased Loans....3
1.04 Payment for Assumption of Deposit Liabilities..............................4
1.05 Assignment of Contracts....................................................4
1.06 Prorations and Transfer Taxes..............................................4
1.07 Closing Date and Place of Closing..........................................5
1.08 Time for Delivery..........................................................5
ARTICLE II
COVENANTS, REPRESENTATIONS AND WARRANTIES OF SELLER
2.01 Organization...............................................................5
2.02 List of Deposit Liabilities, Loans and Contracts...........................5
2.03 Leases.....................................................................6
2.04 Real Property..............................................................6
2.05 Personal Property..........................................................6
2.06 Premises...................................................................6
2.07 Contracts, Consents and Other Agreements...................................7
2.08 Access to Information......................................................7
2.09 Preservation of Business, etc..............................................7
2.10 Accuracy of Exhibits.......................................................8
2.11 Untrue Statements..........................................................8
2.12 Litigation.................................................................8
2.13 Compliance With Laws.......................................................9
2.14 Conflicts..................................................................9
2.15 Corporate Approval.........................................................9
2.16 Regulatory Approval........................................................9
2.17 Other Agreements...........................................................9
2.18 Purchased Loans............................................................9
2.19 Seller's Indemnities and Assumptions......................................11
2.20 Warranties and Guaranties.................................................12
2.21 Retirement Accounts.......................................................12
ARTICLE III
COVENANTS, REPRESENTATIONS AND WARRANTIES OF PURCHASER
3.01 Organization .............................................................13
3.02 Corporate Approval........................................................13
3.03 Conflicts.................................................................13
3.04 Regulatory Approval.......................................................13
3.05 Assumption of Contracts...................................................13
3.06 Litigation................................................................13
3.07 Purchaser's Indemnities and Assumptions...................................13
ARTICLE IV
DOCUMENTS AND TRANSFERS ON THE CLOSING DATE
AND THE ADJUSTMENT PAYMENT DATE
4.01 Closing Date - Seller.....................................................15
4.02 Closing Date - Purchaser..................................................16
4.03 Adjustment Payment Date - Seller..........................................17
4.04 Adjustment Payment Date - Purchaser.......................................17
ARTICLE V
CONDITIONS TO OBLIGATIONS OF SELLER
5.01 Compliance With Conditions...............................................17
5.02 Truth of Warranties......................................................17
5.03 Regulatory Approval......................................................18
5.04 Officers' Certificates...................................................18
5.05 Cooperation After Closing................................................18
5.06 Validity of Assumption...................................................18
5.07 Absence of Litigation....................................................18
ARTICLE VI
CONDITIONS TO OBLIGATIONS OF PURCHASER
6.01 Compliance With Terms of Agreement.......................................18
6.02 Truth of Warranties......................................................18
6.03 Regulatory Approval......................................................19
6.04 Officers' Certificate....................................................19
6.05 No Material Change.......................................................19
6.06 Cooperation After Closing................................................19
6.07 Validity of Assumption...................................................19
6.08 Absence of Litigation....................................................19
ARTICLE VII
TERMINATION
7.01 Termination...............................................................19
7.02 Risk of Loss..............................................................20
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ARTICLE VIII
MISCELLANEOUS
8.01 Expenses.................................................................21
8.02 Press Releases...........................................................21
8.03 Nature and Survival of Representations and Warranties....................21
8.04 Brokers..................................................................21
8.05 Extensions and Waivers...................................................21
8.06 Removal of Signs.........................................................21
8.07 Amendments...............................................................21
8.08 Further Assurances.......................................................22
8.09 Binding Effect...........................................................22
8.10 Notices..................................................................22
8.11 Headings.................................................................23
8.12 Severability.............................................................23
8.13 Enforcement Costs........................................................23
8.14 Remedies Cumulative......................................................23
8.15 Entire Agreement.........................................................23
8.16 Governing Law............................................................23
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EXHIBIT 10.21
AGREEMENT
FOR
PURCHASE OF CERTAIN ASSETS AND
ASSUMPTION OF CERTAIN LIABILITIES
THIS AGREEMENT FOR PURCHASE OF CERTAIN ASSETS AND ASSUMPTION OF CERTAIN
LIABILITIES (the "Agreement") is made and entered into as of August 11, 1997
between The Central and Southern Bank of North Georgia, FSB, a federally-
chartered savings bank ("Seller"), and The Central and Southern Bank of Georgia,
a commercial bank organized under the laws of the State of Georgia
("Purchaser").
WHEREAS, Seller operates a branch savings bank office in a free-standing
premises located at:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
(the "Branch Office"); and
WHEREAS, Purchaser desires to establish a bank branch to be located at
and operated from the Branch Office; and
WHEREAS, Seller desires to sell and transfer and Purchaser desires to
acquire certain assets and assume certain liabilities in connection with the
operation of the Branch Office including: (a) title to certain real and personal
property used in the operation of the Branch Office; (b) certain time, savings
and checking deposit accounts which are maintained at the Branch Office; and (c)
certain Purchased Loans (as defined below).
NOW, THEREFORE, in consideration of the above premises and the mutual
agreements, covenants and provisions herein contained, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
PURCHASE AND SALE OF ASSETS AND
ASSUMPTION OF DEPOSIT LIABILITIES
1.01 SALE OF ASSETS. Upon the terms and conditions set forth in
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this Agreement, Seller shall sell and convey to Purchaser, and Purchaser shall
purchase from Seller, certain of the assets used in connection with the
operation of the Branch Office including:
A. REAL PROPERTY. Good and marketable fee simple title to the
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real property and improvements located thereon at the Branch Office, together
with all easements and appurtenances belonging thereto, and all intangible
rights, licenses and permits pertaining thereto or to the use
thereof (the "Real Property"). A more detailed description of the Real Property
is attached hereto as Exhibit "A" and incorporated herein by this reference.
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B. PERSONAL PROPERTY. The personal property owned by Seller and
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specifically set forth on Exhibit B attached hereto and incorporated herein by
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this reference, generally including, without limitation, fixtures, furniture,
equipment, materials, machine and equipment operations manuals, supplies, safe
deposit box keys, vault and drawer cash, security deposits, telephone and fax
numbers used by Seller in connection with the Branch Office, checks deposited to
Deposit Liabilities (as defined below) and returned for insufficient funds or as
doubtful of collection, subject nevertheless to collection, and savings and
checking deposit records and customer records related thereto (collectively, the
"Personal Property"), but excluding proprietary signage inserts of Seller.
C. PURCHASED LOANS. Those loans set forth on Exhibit C
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(attached hereto and incorporated herein by this reference) plus those
additional loans which may be selected by Purchaser and Seller prior to the
Closing Date (the "Purchased Loans ").
D. CONTRACTS. Those contracts relating to the operation of the
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Branch Office as specifically selected by Purchaser pursuant to Section 3.05
hereof including, without limitation, safe deposit box rental agreements (the
"Selected Contracts").
1.02 ASSIGNMENT AND ASSUMPTION OF DEPOSIT LIABILITIES. Upon the
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terms and conditions set forth in this Agreement, Seller shall assign to
Purchaser and Purchaser shall assume all liabilities for payment of the
withdrawal value of all outstanding savings, checking, money-market and
certificate of deposit accounts, including individual retirement and ▇▇▇▇▇
accounts, at the Branch Office existing as of the close of business on the
Closing Date (the "Deposit Liabilities"). Deposit Liabilities shall include
interest accrued thereon but not credited to the withdrawal value of the
appropriate account as of the close of business on the Closing Date.
On the Closing Date, Seller shall provide a final customer list of the
Deposit Liabilities. Within thirty (30) days after the date of this Agreement,
Seller shall notify the holders of the accounts comprising the Deposit
Liabilities to be assumed that, subject to closing requirements, Purchaser will
be assuming the liability of the accounts and shall set out the details of the
administration of the assumed accounts. Such notice shall be subject to the
prior approval by Purchaser, and Purchaser agrees to assist Seller in preparing
such notice. Holders of accounts opened subsequent to the date of the
notification contemplated above and prior to the Closing Date will be given a
copy of the Seller's notification letter by Seller at the time the account is
opened.
With respect to the Deposit Liabilities, the parties agree as follows:
A. DIRECT DEPOSIT ACCOUNTS. Seller will provide to Purchaser, no
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less than ten (10) nor more than thirty (30) days prior to the Closing Date, a
list of its Automated Clearing House ("ACH") entries for electronic transfer
accounts domiciled at the Branch Office. At the Closing (as defined below),
Purchaser will provide ACH originators with account number conversion tapes or
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other documentary information. Seller will continue to accept and forward to
Purchaser ACH entries and corresponding funds related to the Deposit Liabilities
for one hundred twenty (120) days following the Closing Date. Seller will
notify Purchaser of receipt of any such funds within twenty-four (24) hours of
receipt. Following the expiration of the 120-day period, Seller may discontinue
accepting and forwarding ACH entries and funds and return them to the
originators marked "Account Closed," and Seller shall not be liable for any
account overdrafts which may be thereby created.
B. CHECKING ACCOUNTS. Within thirty (30) days after the Closing
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Date, Purchaser will provide holders of checking accounts, new checks bearing
appropriate Magnetic Ink Character Recognition ("MICR") encoding with
Purchaser's routing and transit numbers and the Purchaser's identification
number. Seller will forward to Purchaser checks received by it drawn on
accounts which are part of the Deposit Liabilities for a period of forty-five
(45) days following the Closing Date. After the 45 day period, Seller will
return these items marked "Account Closed" or "Refer to Maker" and Purchaser
will have no responsibility for the returned items. Purchaser accepts full
responsibility to either pay the items or return them in accordance with the
customer agreement and applicable law. During such 45-day period, Seller will
give Purchaser a daily accounting of debits to its clearing account. Purchaser
shall promptly reimburse Seller for such debits.
C. INTEREST REPORTING. Seller shall report from January 1, 1997
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through the Closing Date and Purchaser shall report from the day after the
Closing Date and thereafter all interest credited to, interest withheld from and
early withdrawal penalties charged to the Deposit Liabilities. Said reports
shall be made to the holders of these accounts and to the applicable federal and
state regulatory agencies.
1.03 PURCHASE PRICE FOR REAL PROPERTY, PERSONAL PROPERTY AND PURCHASED
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LOANS. The purchase price for the Real Property, the Personal Property and the
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Purchased Loans shall be equal to the sum of the Real Property Purchase Price
(as defined below), the Personal Property Purchase Price (as defined below) and
the Loans Purchase Price (as defined below), as set forth in this Section 1.03.
A. REAL PROPERTY. The purchase price for the Real Property shall be
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equal to the book value of the Real Property (the "Real Property Purchase
Price"). Book value of the Real Property shall mean the value at which the Real
Property is carried for financial reporting purposes on the Seller's books at
the close of business on the last day of the calendar month immediately
preceding the month of the Closing.
B. PERSONAL PROPERTY. The purchase price for the Personal Property
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shall be equal to the net book value of the Personal Property reduced by the
book value of any such property which is not in working order (the "Personal
Property Purchase Price"). Net book value of the Personal Property shall mean
the sum of values at which the items of Personal Property are carried for
financial reporting purposes on the Seller's books at the close of business on
the last day of the calendar month immediately preceding the month of the
Closing.
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C. PURCHASED LOANS. The purchase price for the Purchased Loans shall
---------------
be equal to the outstanding principal balance of said loans, less any discount
or plus any premium specified by Seller with respect to each, and accrued
interest thereon as of the close of business on the Closing Date (the "Loans
Purchase Price"). Such aggregate principal balance of the Purchased Loans, as
adjusted for premiums or discounts, shall be hereinafter referred to as the
"Purchased Loans Base."
D. METHOD OF PAYMENT. The Real Property Purchase Price, the
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Personal Property Purchase Price and the Estimated Loans Purchase Price (as
defined below) shall be paid at the time of the Closing as a credit against
Seller's payment of the Estimated Liabilities Price (as defined below).
1.04 PAYMENT FOR ASSUMPTION OF DEPOSIT LIABILITIES. In connection
---------------------------------------------
with Purchaser's assumption of the Deposit Liabilities, Seller shall pay
Purchaser the Liabilities Price (as defined below).
A. LIABILITIES PRICE. The "Liabilities Price" shall be equal to one
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hundred percent (100%) of the total amount of the Deposit Liabilities.
B. CALCULATION OF PAYMENT ON THE CLOSING DATE. At the time of
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Closing, Seller shall pay to Purchaser the estimated amount of the Liabilities
Price based on Deposit Liabilities as of a date (the "Calculation Date")
mutually agreed by Seller and Purchaser no more than five (5) business days
prior to the Closing Date (the "Estimated Liabilities Price"). The Seller shall
pay the Estimated Liabilities Price, adjusted for the Real Property Purchase
Price, the Personal Property Purchase Price and the estimated amount of the
Loans Purchase Price based on the Purchased Loans Base as of the close of
business on the Closing Date (the "Estimated Loans Purchase Price"), to
Purchaser in cash by federal funds wire on the Closing Date.
C. CALCULATION OF ADJUSTMENT PAYMENT DATE. Within fifteen (15) days
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after the Closing Date, an adjustment payment (the "Adjustment Payment") shall
be made by the appropriate party so that the total amount paid by Seller equals
the Liabilities Price adjusted for the credits of the Real Property Purchase
Price, the Personal Property Purchase Price and the Loans Purchase Price. The
Adjustment Payment shall be paid by the appropriate party in cash by federal
funds wire.
1.05 ASSIGNMENT OF CONTRACTS. Seller shall assign the Selected
-----------------------
Contracts to Purchaser, who shall assume all rights and obligations of Seller
under the Selected Contracts from and after the close of business on the Closing
Date.
1.06 PRORATIONS AND TRANSFER TAXES. Amounts due and payable or
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prepaid relating to the Selected Contracts, property, intangible and tangible
taxes, safe deposit box rents, Savings Association Insurance Fund ("SAIF")
insurance premiums, or other prepaid items of a similar nature which are
assigned to Purchaser, shall be adjusted ratably to the Closing Date. Seller
shall pay the amount of all documentary stamp taxes and other transfer taxes
imposed by the State of Georgia and
4
the county in which the Branch Office is located, and all applicable municipal
transfer taxes, as a result of the transaction contemplated by this Agreement.
Purchaser shall pay the amount of all sales taxes imposed by the State of
Georgia or any other governmental authority as a result of the transaction
contemplated by this Agreement. Utilities, including but not limited to phone,
water, sewer, garbage, electricity and gas, if applicable, shall be pro-rated as
of the Closing Date. Seller and Purchaser agree to cooperate with each other
subsequent to the Closing Date regarding the determination and payment of
accurate prorations for utilities.
1.07 CLOSING DATE AND PLACE OF CLOSING. Subject to satisfaction or
---------------------------------
waiver of all the conditions set forth in Articles V and VI of this Agreement,
the Closing shall be on a date mutually agreed between Purchaser and Seller, but
in no event later than October 31, 1997 (the "Closing Date"). The Closing shall
be held on the Closing Date at 10:00 A.M. at the offices of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, PLLC, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇ or such other location as may be mutually agreed between Purchaser and
Seller. The day of the Closing shall belong to the Purchaser for purposes of
prorating income and expenses.
1.08 TIME FOR DELIVERY. Except as otherwise provided, any delivery,
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conveyance, assignment or transfer that is to be made on the Closing Date or the
date of the Adjustment Payment, shall be made by and as of the close of business
on such date in the manner and at the place reasonably requested in writing by
the party that is to receive such delivery, conveyance, assignment or transfer.
ARTICLE II
COVENANTS, REPRESENTATIONS AND WARRANTIES OF SELLER
Seller covenants, represents and warrants to Purchaser as follows:
2.01 ORGANIZATION. Seller is a federally-chartered stock savings
------------
bank, validly existing and in good standing under the corporate laws of the
United States of America. Seller has all corporate power required to carry on
its business. Seller has and maintains all regulatory authorizations, licenses,
permits and certificates required to carry on its current business at the Branch
Office.
2.02 LIST OF DEPOSIT LIABILITIES, LOANS AND CONTRACTS. As soon as is
------------------------------------------------
reasonably possible, but in any event not more than thirty (30) days after the
execution of this Agreement, Seller at its sole cost and expense shall deliver
the following items, current (except as otherwise specified herein) as of a date
not more than five (5) days prior to the date of delivery to Purchaser:
A. DEPOSIT LIABILITIES. A schedule of all savings, checking, money-
-------------------
market and certificate of deposit accounts, including Deposit Liabilities
maintained at the Branch Office as of the close of business on June 30, 1997,
and such other historical account records as are in possession of Seller,
certified by the Chief Financial Officer or Treasurer of Seller to be true and
accurate. Such schedule shall include the account number and type of account
for each deposit account, interest rate
5
paid for each applicable interest period, the maturity date, if any, the
principal balance of and interest paid for each applicable interest period and
such other information as may be necessary and desirable for the proper
administration of such accounts and claims made with respect thereto.
B. LOANS. A list of all loans of Seller which Seller desires to make
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available for purchase by Purchaser to the extent expected to remain outstanding
on the Closing Date (the "Branch Office Loans"), certified by the Chief
Financial Officer or Treasurer of Seller to be true and accurate.
C. CONTRACTS. A list of all oral and written contracts to which
---------
Seller is a party that are necessary for or in any way relate to the operation
of the Branch Office or Seller's business therein and, if written, a copy of
each such contract.
D. OPERATING EXPENSES. A schedule of operating expenses, excluding
------------------
employee salary and benefits, of the Branch Office for the twelve (12) months
preceding the date of this Agreement, if available, or if such schedule is not
available, the best available information regarding such operating expenses.
2.03 LEASES. Except as set forth in the list provided pursuant to
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Section 2.02C, no real or personal property used in conjunction with the
operation of the Branch Office or the Seller's business therein is leased by
Seller.
2.04 REAL PROPERTY. Seller warrants that it has good and marketable
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fee simple title to the Real Property. The Seller shall cause all deeds to
secure debt and other liens encumbering title to the Real Property to be paid in
full and canceled of record at or before the Closing.
2.05 PERSONAL PROPERTY. To the best of Seller's knowledge, the
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Personal Property is in good condition, reasonable wear and tear excepted, and
is suitable for the business conducted at the Branch Office. Seller warrants
that it is the owner of and has good and marketable title to the Personal
Property free and clear of all debts, liens, security interests and encumbrances
except as may be otherwise set forth in this Agreement, none of which will
materially affect the value or use of such Personal Property.
2.06 PREMISES. Exhibit D (attached hereto and incorporated herein by
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this reference) consists of true and correct copies of all documents and
agreements relating to the Branch Office in the possession of Seller. All
buildings, structures and appurtenances located at the Branch Office, including
drive-through facilities, are in good operating condition and in a state of good
repair, and are adequate and suitable for the purposes for which they are being
used. None of such buildings, structures, including drive-through facilities,
or appurtenances (or any equipment therein), nor the operation or maintenance
thereof, nor the operation of the Branch Office therein, violates any documents
or restrictive covenants or any provision of any federal, state or local law,
ordinance, rule or regulation, or encroaches on any property owned by others.
There are no special assessments affecting or relating to the Real Property. No
work has been done upon, or materials delivered to, the Branch Office, or any
portion thereof, during Seller's occupancy pursuant to Seller's instructions
6
which is not fully paid for, nor does any person, firm or corporation now have
any lien rights with respect to the Branch Office or any part or parcel thereof
by reason of such work or material. No condemnation proceeding is pending or,
to the knowledge of the Seller, threatened which would preclude or impair the
use of the Real Property by the Seller for the purposes for which it is
currently used. To the best of Seller's knowledge, during the Seller's
occupancy of the Premises, no hazardous or toxic materials have been disposed of
on the Premises or discharged to the surrounding or underlying ground or waters.
To the best of the Seller's knowledge, and without independent investigation, no
hazardous or toxic materials were disposed of on the Premises or discharged to
the surrounding or underlying ground or water prior to the Seller's occupancy of
the Premises.
2.07 CONTRACTS, CONSENTS AND OTHER AGREEMENTS. Seller shall use its
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best efforts to effect the lawful and valid assignment of the Selected Contracts
designated by Purchaser to Purchaser on the Closing Date, including without
limitation, the obtaining of all required consents to each such assignment from
other parties to the Selected Contracts. Seller agrees that, at any time and
from time to time after the Closing Date, Seller will, upon the request of
Purchaser, do, execute, acknowledge and deliver, or will cause to be done,
executed, acknowledged and delivered, all such further acts, deeds, assignments,
transfers, conveyances, powers of attorney or assurances as may be required for
the valid assignment of the Selected Contracts to Purchaser.
2.08 ACCESS TO INFORMATION. From and after the date of this
---------------------
Agreement, Seller shall, during normal business hours, afford the officers,
attorneys, accountants and other authorized representatives of Purchaser
reasonable access to the Branch Office and the books, records and properties of
Seller pertaining to the Branch Office (including the Branch Office Loans) in
order that Purchaser may have full opportunity to make such investigations as
Purchaser shall reasonably desire to make of the Branch Office and such books,
records and properties, and Purchaser shall be permitted to make extracts from,
or copies of, such books and records. Seller shall furnish to Purchaser such
financial and operating data and other information regarding the Branch Office
as Purchaser shall reasonably request, which information shall be kept
confidential by Purchaser. Information not specifically relating to the Branch
Office subsequently or heretofore obtained, other than information available to
Purchaser through independent sources or in the public domain, shall be kept
confidential by Purchaser and shall not be used by Purchaser otherwise than in
connection with this Agreement and operation of the Branch Office after the
Closing Date. In the event of termination of this Agreement, each party shall
keep confidential all information received by the other party. In the event of
any such termination, Purchaser shall return to Seller all documents received
from Seller, and all copies thereof, that include or evidence such information.
2.09 PRESERVATION OF BUSINESS, ETC. Between the date of execution of
-----------------------------
this Agreement and the Closing Date, Seller: (a) shall preserve the Branch
Office as a going concern and operate such business only in the ordinary course
in accordance with its past practices; (b) without the prior written consent of
Purchaser, shall not offer for savings and checking account deposits at the
Branch Office any special promotion or premium for new savings and checking
accounts or additional deposits to existing savings and checking accounts; (c)
shall keep its books and records in accordance with generally accepted
accounting principles consistent with the principles applied in the preceding
fiscal
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year, except to the extent that generally accepted accounting principles have
been modified by federal law or regulation; (d) shall not enter into any
agreements relating to the Branch Office other than such as are incidental to
normal current operations; (e) shall not effectuate or consent to any
modification or cancellation of any Selected Contract; (f) shall not dispose of
any part of the Branch Office without the consent of Purchaser; (g) shall make
no changes in the personnel employed at the Branch Office other than
terminations for cause or replacement of personnel; (h) shall not change any of
its savings account practices at the Branch Office, except as required by
changes in applicable law or industry-wide practice; (i) shall not take any
action which would materially affect Purchaser's rights hereunder or the assets
to be acquired or liabilities to be assumed hereunder; and (j) shall not
increase the interests rates payable on any of the types of accounts at the
Branch Office unless any such increases are offered by the Seller at all of its
other branches. Seller will use its best efforts to maintain the Branch Office
and Personal Property in customary repair, and preserve the present
relationships with all customers of the Branch Office and with entities having
business dealings with it through the Branch Office. Seller agrees to provide
to Purchaser, at the ▇▇▇▇ ▇▇▇▇▇▇ provides such notice to its branch offices, but
in no event less than one business day prior to such change, written notice of
each change in interest rates to be paid on such types of accounts throughout
its branch offices generally, through the Closing Date.
2.10 ACCURACY OF EXHIBITS. True, complete and correct copies of
--------------------
contracts, agreements, leases and other instruments listed on any exhibit hereto
and noted on the exhibit as having been furnished to Purchaser have been and
will continue to be made available to Purchaser by Seller. To the best of
Seller's knowledge, all exhibits, schedules or lists to be provided by Seller to
Purchaser are or will be when delivered, complete and accurate in all material
respects. Seller shall update on the Closing Date to the close of business on
the Closing Date the information contained in any such exhibit, schedule or list
provided as of a date prior to the Closing Date pursuant to this Agreement.
2.11 UNTRUE STATEMENTS. No representation or warranty by Seller in
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this Agreement or any exhibit hereto, and/or any statement, schedule, list, or
officer's certificate furnished or to be furnished to Purchaser pursuant hereto
or in connection with the transactions contemplated hereby contains or will
contain, as of the date of delivery thereof or as amended or supplemented at the
Closing Date and at the Adjustment Payment Date, respectively, any untrue
statement of material fact, or omits or will omit to state any material fact,
necessary to make the statements contained herein or therein not misleading.
2.12 LITIGATION. There is no litigation, proceeding, examination or
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investigation pending or, to the knowledge of Seller, threatened against or
relating to the Branch Office or business of Seller conducted on or from the
Branch Office or in connection therewith which would have a materially adverse
effect (a) on Seller's business at the Branch Office, (b) on the prospects of
such business, or (c) on the Branch Office, or which questions the validity of
any action taken or to be taken by Seller pursuant to or in connection with the
provisions of this Agreement; and Seller does not know nor has any reasonable
grounds to know of any basis for any such action, or any governmental
investigation, examination or proceeding relative to the Branch Office or the
Seller's business conducted thereat.
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2.13 COMPLIANCE WITH LAWS. With respect to the Branch Office and the
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business of Seller carried on at the Branch Office, Seller is, and at all times
has been: (a) in material compliance with the provisions of any applicable
federal, state and local statutes, regulations and ordinances (including,
without limitation, those relating to solid waste and hazardous waste treatment
and their storage, on or off-site disposal, generation and transfers, those
relating to water, air or noise pollution, ground water contamination, the
handling, storage or release into the environment of hazardous materials or
hazardous substances or the transfer of hazardous materials), the violation of
which would impede Purchaser's ability to operate the Branch Office, including
without limitation all such regulations of governmental agencies having
jurisdiction over such business; and (b) in compliance with all material
agreements, contracts and commitments to which Seller is a party. To the best
of Seller's knowledge, Seller is not in violation of any such statute,
regulation or ordinance, or in default under any such material agreement,
contract or commitment other than as provided in Schedule 2.13 attached hereto.
2.14 CONFLICTS. The execution, delivery and performance of this
---------
Agreement and compliance with the provisions hereof by Seller will not conflict
with, or result in any material breach of any of the terms, conditions or
provisions of, or constitute a material default under, or, except for such
rights that may be created in favor of Purchaser by this Agreement, result in
the creation of any lien, charge or encumbrance upon the Branch Office pursuant
to, any corporate charter, bylaw, mortgage, lease, agreement, order, decree,
ruling or other instrument to which Seller is a party or by which Seller is
bound.
2.15 CORPORATE APPROVAL. The execution, delivery and performance of
------------------
this Agreement have been duly authorized by the Board of Directors of Seller
and, subject to receipt of required regulatory approvals, no other corporate
action or other approval, acquiescence or consent is required in order to
authorize the execution, delivery and performance of this Agreement by Seller.
2.16 REGULATORY APPROVAL. Seller shall use its best efforts to
-------------------
secure and to assist in securing any regulatory approval or consent required to
be obtained as a condition to the lawful consummation of the transactions
contemplated by this Agreement.
2.17 OTHER AGREEMENTS. Except for this Agreement, there is no other
----------------
outstanding agreement for the sale or transfer of any portion or all of the
Branch Office, the Real Property, the Personal Property, the Deposit Liabilities
or the Purchased Loans.
2.18 PURCHASED LOANS.
---------------
A. The Seller is the sole owner of each Purchased Loan and has the
authority to sell, transfer, and assign such loans on the terms herein set
forth; and there has been no assignment, sale, or hypothecation thereof by
Seller, except the usual hypothecation of the Purchased Loan documents in
connection with Seller's normal banking transactions in the conduct of its
business. As to each Purchased Loan, all applicable federal and state laws,
rules and regulations, as from time to time amended, have been complied with;
and all conditions within the control of Seller as to the
9
validity of the applicable insurance or guaranty as required by the National
Housing Act of 1934, as amended, and the rules and regulations thereunder, or as
required by the Servicemen's Readjustment Act of 1944, and the rules and
regulations thereunder, or by the mortgage insurance companies or other
insurers, have been properly satisfied and said insurance or guaranty is valid
and enforceable. Seller agrees to do all acts necessary to perfect title to the
Purchased Loans in Purchaser at Closing, and to be responsible at no expense to
Purchaser for seeing to it that at all times while this Agreement is in force,
policies of fidelity, fire, and extended coverage, theft, forgery and errors and
omissions insurance are maintained on the collateral property securing the
Purchased Loans, and shall furnish proof of such insurance coverage upon demand
by Purchaser.
B. Seller represents and warrants as to each Purchased Loan that:
(i) The applicable loan documents have been duly executed by the loan
debtor, acknowledged, and recorded; and the loan is valid and complies with all
applicable lending laws and regulations;
(ii) The loan debtor has duly executed appropriate evidence indicating
that the loan debtor has received the disclosure materials as required by
applicable laws and regulations;
(iii) The full original principal amount of the loan has been
advanced to the loan debtor, either by direct payment, or by payment made on the
loan debtor's request or approval; the unpaid principal balance is as stated on
Exhibit C; all costs, fees, and expenses incurred in making, closing, and
----------
recording the loan have been paid; no part of the security property has been
released from the lien of the loan; the terms of the loan have in no way been
changed or modified, except for loan adjustments made in compliance with the
loan contract and applicable regulatory requirements or as set forth in
appropriate amendments executed by the loan debtor and Seller; and the loan is
current and not in default;
(iv) Each loan which Seller represents to be insured by a private
mortgage insurance company, or to be insured or guaranteed by a governmental or
quasi-governmental agency, is so insured or guaranteed;
(v) There is in force a paid-up title insurance policy on the loan or
other documentary evidence in an amount at least equal to the outstanding
principal balance of the loan affirming the quality and validity of Seller's
lien securing the loan;
(vi) The assignment, if any, of the loan from the Seller to Purchaser
will be valid and sufficient;
(vii) All documents submitted are genuine, and all other
representations as to each loan sold are true and correct;
10
(viii) There is in force such flood insurance policy as is
required (if any) under the Flood Disaster Protection Act of 1973, as amended,
and implementing and other regulations; and
(ix) The improvements on the premises securing each loan are kept
insured by hazard insurance policies in an amount at least equal to the
outstanding principal of the loan, or the full insurable value of the
improvements, whichever is less.
2.19 SELLER'S INDEMNITIES AND ASSUMPTIONS.
------------------------------------
A. INDEMNITIES. Seller agrees to indemnify, hold harmless and
-----------
defend Purchaser at all times from and after the Closing Date against and from
any and all losses, claims, damages, costs, expenses or liabilities to which
Purchaser may become subject insofar as such losses, claims, damages, costs,
expenses and liabilities (including such attorneys' fees incurred in connection
with such actions even if incident to arbitration or appellate, bankruptcy and
post-judgment proceedings) arise out of or are based upon the following:
(i) The activities and operations of Seller, its officers, directors
and employees at or relating to the Branch Office for all periods prior to and
including the Closing Date, including but not limited to obligations and
liabilities relating to Selected Contracts, Deposit Liabilities, Real Property,
Personal Property, taxes and penalties and interest thereon and other
governmental laws and regulations, safe deposit boxes leased at any time prior
to Closing from the Branch Office and the payment of accrued interest;
(ii) The existence of any facts, circumstances, situations or
conditions or the happening of any event constituting a breach or violation of
any of the representations, warranties, covenants or agreements of Seller
contained in this Agreement, or the untruth or inaccuracy thereof, including but
not limited to all statements or figures contained in the exhibits to or
statements, certificates or lists and schedules provided pursuant to this
Agreement; provided, however, that Seller's obligations hereunder with respect
to any breach of representation or warranty shall not survive beyond three (3)
years after the Closing Date;
(iii) Any default or failure to perform, on the part of
Seller, occurring prior to or on the Closing Date, under any of the Selected
Contracts or Deposit Liabilities; and
(iv) The existence of any defect in the assignment of any Purchased
Loan, including Seller's lack of power or authority to make such assignment, or
of a defense asserted by a borrower under a Purchased Loan, which defect or
defense impedes or prevents, upon default of such borrower, the ability of
Purchaser to collect such Purchased Loan or to otherwise realize upon the
collateral securing such Purchased Loan.
The defense and indemnification will include, but not be limited to, losses or
potential losses under the Uniform Commercial Code relating to negotiable
instruments, assignments or pledges; claims
11
relating to disclosures, representations, fraud or concealment; claims founded
on employee defalcation or negligence; and any other activity or failure to act
relating to the obtaining and handling of said accounts prior to or on the
Closing Date or in connection with the performance by Seller of any of its post-
Closing Date obligations under this Agreement, including without limitation
improper crediting or debiting of receipts or disbursements of the accounts;
provided, however, that Seller's obligations under Sections 2.19(A)(ii) and (iv)
with respect to Purchased Loans shall arise only if Seller fails to transfer to
and exchange with Purchaser a new loan (a "Substitute Loan") in substitution for
the Purchased Loan(s) giving rise to Seller's obligations under Sections
2.19(A)(ii) and (iv) within forty-five (45) days after Purchaser's notice to
Seller provided under this Section 2.19. Purchaser shall have the right in its
reasonable discretion to accept or reject a loan as a Substitute Loan and, once
accepted, a Substitute Loan shall be deemed a Purchased Loan for all purposes of
this Agreement. Transfers and conveyances of Purchased Loans by Purchaser to
Seller and of Substitute Loans by Seller to Purchaser shall take place in the
manner, and accompanied by the ancillary documentation, as specified in this
Agreement for the transfer and conveyance of Purchased Loans by Seller to
Purchaser on the Closing Date. Accruals for interest, hazard insurance, real
estate taxes, etc. shall be prorated as of the date of transfer and conveyance,
and differences in principal balances between Substitute Loans and the Purchased
Loans for which they were substituted shall be reconciled and paid by the
appropriate party on such date.
B. SELLER'S PARTICIPATION. Purchaser will supply Seller with notice
----------------------
of any loss, damage or claim which, if true, could result in loss or damage and
an indemnification obligation of Seller as set forth above. Seller shall have
the right to pay, settle or compromise any such claim. If Seller litigates any
action arising from such claim, Seller shall pay all costs imposed in litigating
the claim and any awards or judgments related to the claim which resulted from
actions or inactions prior to or on the Closing Date. If Seller fails to defend
Purchaser or fails to settle or compromise the claim within a reasonable period
of time after notice, then Purchaser shall be entitled to settle, compromise or
pay any award or judgment (after giving Seller notice of its intention to do so)
and Purchaser shall be entitled to immediately receive reimbursement therefore
from Seller upon written demand, whether the matter was litigated, settled or
compromised, equal to the amount of any award or judgment, and/or equal to the
amount of any settlement or costs of any compromise paid by or incurred by
Purchaser plus an amount equal to attorneys' fees incident to arbitration or
appellate, bankruptcy and post-judgment proceedings and paraprofessional fees.
2.20 WARRANTIES AND GUARANTIES. With respect to the Personal
-------------------------
Property, Seller shall assign and deliver to Purchaser, on or prior to the
Closing Date, all warranties and guaranties, manufacturers' or otherwise, which
are in force and effect as of the Closing Date and which are not expressly made
non-assignable by their own terms.
2.21 RETIREMENT ACCOUNTS. Seller shall resign as trustee under
-------------------
individual retirement and ▇▇▇▇▇ accounts included in the Deposit Liabilities,
effective on the Closing Date and appoint Purchaser as its successor trustee in
accordance with the terms of such account documents. Seller shall promptly send
appropriate notices to such account holders.
12
ARTICLE III
COVENANTS, REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser covenants, represents and warrants to Seller as follows:
3.01 ORGANIZATION. Purchaser is a Georgia chartered commercial bank
------------
validly existing and in good standing under the laws of the State of Georgia.
Purchaser has all corporate power, subject to required regulatory approvals, to
carry on the business of a commercial bank at the Branch Office.
3.02 CORPORATE APPROVAL. The execution, delivery and performance of
------------------
this Agreement have been duly authorized by the Board of Directors of Purchaser
and, subject to receipt of required regulatory approvals, no other corporate
action or other approval or consent is required in order to authorize the
execution, delivery and performance of this Agreement by Purchaser.
3.03 CONFLICTS. The execution, delivery and performance of this
---------
Agreement and compliance with the provisions hereof by Purchaser will not
conflict with, or result in any material breach of any of the terms, conditions
or provisions of, or constitute a material default under, any corporate charter,
bylaw, mortgage, lease, agreement, order, decree, ruling or other instrument to
which Purchaser is a party or by which Purchaser is bound.
3.04 REGULATORY APPROVAL. Purchaser shall use its best efforts to
-------------------
secure and to assist in securing any regulatory approval or consent required to
be obtained as a condition to the lawful consummation of the transactions
contemplated by this Agreement.
3.05 ASSUMPTION OF CONTRACTS. Within fifteen (15) days after receipt
-----------------------
of contracts to be provided to Purchaser by Seller pursuant to Section 2.02C,
Purchaser shall inform Seller, in writing, of those contracts, Purchaser wants
to assume, which contracts shall comprise the "Selected Contracts."
3.06 LITIGATION. There is no litigation, proceeding, examination or
----------
investigation pending or, to the knowledge of Purchaser, threatened against or
relating to the business of Purchaser to be conducted on or from the Branch
Office or in connection therewith which questions the validity of any action
taken or to be taken by Purchaser pursuant to or in connection with the
provisions of this Agreement; and, Purchaser does not know and has no reasonable
grounds to know of any basis for any such action, or any governmental
investigation, examination or proceeding relative to the Branch Office or the
Purchaser's proposed business thereat.
3.07 PURCHASER'S INDEMNITIES AND ASSUMPTIONS.
---------------------------------------
A. INDEMNITIES. Purchaser agrees to indemnify, hold harmless and
-----------
defend Seller at all times after the Closing Date against and from any and all
losses, claims, damages, costs, expenses or liabilities to which Seller may
become subject insofar as such losses, claims, damages, costs, expenses and
liabilities (including such attorneys' fees, incurred in connection with such
action
13
even if incident to arbitration or appellate, bankruptcy and post-judgment
proceedings) arise out of or are based upon the following:
(i) The activities and operations of Purchaser at the Branch Office
for all periods after the Closing Date, including, but not limited to,
obligations to depositors and borrowers on deposits and loans acquired by
Purchaser, obligations and liabilities relating to taxes and penalties and
interest thereon and other governmental laws and regulations;
(ii) The existence of any facts, circumstances, situations or
conditions or the happening of any event constituting a breach or violation of
any of the representations, warranties, covenants or agreements of Purchaser
contained in this Agreement, or the untruth or inaccuracy thereof; provided,
however, that Purchaser's obligations hereunder with respect to any breach of
representation or warranty shall not survive beyond three (3) years after the
Closing Date;
(iii) Any default or failure to perform, on the part of Purchaser,
occurring after the Closing Date, under any of the Selected Contracts and
Deposit Liabilities; and
(iv) All damages to persons or property which occur after the Closing
Date in or relating to the operation of the Branch Office unless such damages
result from a breach by Seller of its obligations under this Agreement.
The defense and indemnification will include, but not be limited to, losses or
potential losses under the Uniform Commercial Code relating to negotiable
instruments, assignments or pledges; claims relating to disclosures,
representations, fraud or concealment; claims founded on employee defalcation or
negligence; and other activity or failure to act relating to the obtaining and
handling of said accounts after the Closing Date, including improper crediting
or debiting of receipts or disbursements of the accounts.
B. PURCHASER'S PARTICIPATION. Seller will supply Purchaser with
-------------------------
notice of any loss or damage or claim which, if true, could result in loss or
damage and an indemnification obligation of Purchaser as set forth above.
Purchaser shall have the right to pay, settle or compromise any such claim. If
Purchaser litigates any action arising from such claim, Purchaser shall pay all
costs imposed in litigating the claim and any awards or judgments related to the
claim which resulted from actions or inactions subsequent to the Closing Date.
If Purchaser fails to defend Seller or fails to settle or compromise the claim
within a reasonable period of time after notice, then Seller shall be entitled
to settle, compromise or pay any award or judgment (after giving Purchaser
notice of its intention to do so) and Seller shall be entitled to receive
reimbursement therefore from Purchaser upon written demand, whether the matter
was litigated, settled or compromised, equal to the amount of any award or
judgment, and/or equal to the amount of any settlement or cost of any compromise
paid by or incurred by Seller plus an amount equal to attorneys' fees even if
incident to arbitration or appellate, bankruptcy and post-judgment proceedings
and paraprofessional fees.
14
C. NO ASSUMPTIONS. There shall be no general assumption by Purchaser
--------------
of Seller's liabilities, whether accrued or unaccrued, contingent, or otherwise;
except, (i) liabilities relating to the Selected Contracts assumed by Purchaser;
and (ii) the Deposit Liabilities.
ARTICLE IV
DOCUMENTS AND TRANSFERS ON THE CLOSING DATE
AND THE ADJUSTMENT PAYMENT DATE
4.01 CLOSING DATE - SELLER. On or before the Closing Date, Seller
---------------------
shall deliver the following documents and make the following transfers to
Purchaser:
A. A statement listing each Deposit Liability as of the Calculation
Date upon which the Estimated Liabilities Price was calculated, setting forth
the name, address and social security number, if known, of the depositor
thereof, account number and type of account, the principal balance, accrued
interest, maturity date, if any, interest rate, and other information requested
by Purchaser, certified in writing by the Chief Financial Officer or Treasurer
of Seller as being true and correct as of the close of business of such date;
B. A statement setting forth the name and address of the borrower,
the outstanding principal amount, the maturity date, the interest rate and the
amount of accrued but unpaid interest owing as of the Calculation Date, for each
Purchased Loan, certified by the Chief Financial Officer or Treasurer of Seller
as being true and correct as of the close of business as of such date. Seller
shall furnish the borrower with an Internal Revenue Service Form 1098 interest
statement and an explanatory letter regarding the interest paid for the calendar
year-to-date as of the Closing Date. Purchaser shall furnish the borrower with
an internal Revenue Service Form 1098 interest statement for interest paid from
the Closing Date through the end of the calendar year;
C. A Closing Statement detailing the amounts to be transferred by
Seller to Purchaser pursuant to Section 1.04B setting forth, in reasonable
detail, the Estimated Liabilities Price, the Real Property Purchase Price, the
Personal Property Purchase Price and the Estimated Loans Purchase Price, as well
as the prorations required by Section 1.06 hereof;
D. An Officer's Certificate as provided in Section 6.04 of this
Agreement;
E. The transfer of the Estimated Liabilities Price, as adjusted,
pursuant to Section 1.04B of this Agreement, and the payment of the other
amounts payable by Seller pursuant to Section 1.06 hereof;
F. The following records:
15
(i) All records maintained at the Branch Office relating to the
Deposit Liabilities, including signature cards, applications, truth-in-savings
and other disclosures, copies of passbooks and certificates;
(ii) All records maintained at the Branch Office relating to the
operation of the Branch Office;
(iii) All original forms of the Selected Contracts duly
assigned to Purchaser with all necessary consents obtained and attached;
(iv) Security deposits, if any, held by Seller under the Selected
Contracts; and
(v) All original notes, mortgages, security agreements, loan files and
other documents relating to the Purchased Loans duly endorsed or assigned to
Purchaser including, without limitation, appraisals, surveys, title insurance
policies, applications, hazard insurance policies and disclosure statements;
G. A ▇▇▇▇ of sale containing warranties of title and freedom from
encumbrances transferring the Personal Property and the Purchased Loans;
H. Possession of the Branch Office, Real Property and Personal
Property;
I. All warranties and guaranties as to Personal Property as provided
in Section 2.19 of this Agreement; and
J. All of Seller's right, title and interest in and to the safe
deposit box business located at the Branch Office including removable safe
deposit boxes and safe deposit box stacks in the vaults, together with all
rights and benefits accruing to the lessor from and after the Closing Date under
rental agreements with persons to whom any such boxes are rented under
agreements with Seller (which rent shall be prorated in accordance with Section
1.06), and all of the keys, combinations, signature cards, agreements and
records pertaining to the operation of such safe deposit boxes by Seller.
4.02 CLOSING DATE - PURCHASER. On or before the Closing Date,
------------------------
Purchaser shall deliver to Seller the following:
A. An Officer's Certificate as provided in Section 5.04 of this
Agreement;
B. An assumption of Seller's obligations under the Selected
Contracts and Deposit Liabilities; and
16
C. The amount of the sales taxes to be paid by Purchaser as provided
in Section 1.06 of this Agreement.
4.03 ADJUSTMENT PAYMENT DATE - SELLER. On the Adjustment Payment
--------------------------------
Date, Seller shall deliver the following documents and make the following
transfers to Purchaser:
A. An amended statement listing each change from the statement
delivered pursuant to Section 4.01A in the Deposit Liabilities to be transferred
to and assumed by Purchaser, setting forth the name, address and social security
number, if known, of the depositor thereof, account number and type of account,
the principal balance, accrued interest, maturity date, if any, interest rate,
and other information required by Purchaser, as of the close of business on the
Closing Date, certified by the Chief Financial Officer or Treasurer of Seller as
being true and correct;
B. An amended statement setting forth any change from the statement
delivered pursuant to Section 4.01B setting forth the name and address of the
borrower, the outstanding principal amount, the maturity date, the interest rate
and the amount of accrued but unpaid interest owing for each Purchased Loan as
of the close of business on the Closing Date, certified by the Chief Financial
Officer or Treasurer of Seller as being true and correct; and
C. Any Adjustment Payment due to Purchaser, as provided in Section
1.04C of this Agreement.
4.04 ADJUSTMENT PAYMENT DATE - PURCHASER. On the Adjustment Payment
-----------------------------------
Date, Purchaser shall prepare, with the assistance of Seller, a Closing
Statement for execution by the parties and pay to Seller any Adjustment Payment
due to Seller pursuant to Section 1.04C of this Agreement.
ARTICLE V
CONDITIONS TO OBLIGATIONS OF SELLER
The obligations of Seller to consummate the transactions contemplated under
this Agreement are subject to the satisfaction of the following conditions on or
prior to the Closing Date unless otherwise waived in writing by Seller:
5.01 COMPLIANCE WITH CONDITIONS. All of the terms, covenants and
--------------------------
conditions of this Agreement to be complied with and performed by Purchaser on
or before the Closing Date shall have been duly complied with and performed in
all material respects.
5.02 TRUTH OF WARRANTIES. The representations and warranties made by
-------------------
Purchaser herein or in any certificate or document delivered pursuant to the
provisions hereof or in connection with the transactions contemplated hereby
shall be true and correct in all material respects, on and as of the Closing
Date with the same force and effect as though such representations and
warranties had been made on the Closing Date.
17
5.03 REGULATORY APPROVAL. All required regulatory approvals shall
-------------------
have been obtained from the Office of Thrift Supervision, the Federal Deposit
Insurance Corporation, and the Georgia Department of Banking and Finance or such
other applicable regulatory authority in a manner and form reasonably
satisfactory to Seller and shall be in full force and effect.
5.04 OFFICERS' CERTIFICATES. Seller shall have received certificates
----------------------
of Purchaser's President or Executive Vice President, dated as of the Closing
Date, certifying that: (a) Purchaser has performed and complied with all
agreements and conditions required by this Agreement to be performed or complied
with by Purchaser prior to or at the Closing Date; and (b) all representations
and warranties made by Purchaser in this Agreement, or in any certificate or
document delivered pursuant to the provisions hereof or in connection with the
transactions contemplated hereby, are true and correct at and as of the Closing
Date.
5.05 COOPERATION AFTER CLOSING. Seller and Purchaser shall have
-------------------------
agreed on procedures for handling ACH transactions, direct deposits, in-clearing
items, ATM transactions and like transactions relating to the Deposit
Liabilities after the Closing Date.
5.06 VALIDITY OF ASSUMPTION. The validity of the form, substance and
----------------------
legal enforceability of all instruments of transfer and other documentation
hereunder shall be subject to the reasonable approval of Seller and its counsel.
5.07 ABSENCE OF LITIGATION. No action or proceeding shall have been
---------------------
instituted or threatened on or before the Closing Date or pertaining to the
acquisition contemplated hereby or otherwise, the result of which could be
materially adverse to the assumption, service and operation by Purchaser of the
assets purchased and liabilities assumed hereunder.
ARTICLE VI
CONDITIONS TO OBLIGATIONS OF PURCHASER
The obligations of Purchaser to consummate the transactions contemplated
under this Agreement are subject to the satisfaction of the following conditions
on or prior to the Closing Date unless otherwise waived in writing by Purchaser:
6.01 COMPLIANCE WITH TERMS OF AGREEMENT. All of the terms, covenants,
----------------------------------
and conditions of this Agreement to be complied with and performed by Seller on
or before the Closing Date shall have been duly complied with and performed in
all material respects.
6.02 TRUTH OF WARRANTIES. The representations and warranties made by
-------------------
Seller herein or in any certificate or document delivered pursuant to the
provisions hereof or in connection with the transactions contemplated hereby
shall be true and correct in all material respects on and as of the Closing Date
with the same force and effect as though such representations and warranties had
been made on the Closing Date.
18
6.03 REGULATORY APPROVAL. All required regulatory approvals shall
-------------------
have been obtained from the Office of Thrift Supervision, the Federal Deposit
Insurance Corporation, and the Georgia Department of Banking and Finance or such
other applicable regulatory authority in a manner and form reasonably
satisfactory to Purchaser and shall be in full force and effect.
6.04 OFFICERS' CERTIFICATE. Purchaser shall have received
---------------------
certificates of Seller's President or Executive Vice President dated as of the
Closing Date, certifying that: (a) Seller has performed and complied with all
agreements and conditions required by this Agreement to be performed or complied
with by Seller prior to or at the Closing Date; (b) all representations and
warranties made by Seller in this Agreement, or in any certificate or document
delivered pursuant to the provisions hereof or in connection with the
transactions contemplated hereby, are true at and as of the Closing Date; and
(c) no default exists under any Purchased Loans as of the Closing Date.
6.05 NO MATERIAL CHANGE. On the Closing Date, there shall have been
------------------
no material adverse change in the business or prospects of the Branch Office.
6.06 COOPERATION AFTER CLOSING. Seller and Purchaser shall have
-------------------------
agreed on procedures for handling ACH transactions, direct deposits, in-clearing
items, ATM transactions and like transactions related to the Deposit Liabilities
after the Closing Date.
6.07 VALIDITY OF ASSUMPTION. The validity of the form, substance and
----------------------
legal enforceability of all instruments of transfer and other documentation
hereunder including, without limitation, that required to be delivered pursuant
to Section 4.01 hereof, shall be subject to the reasonable approval of Purchaser
and its counsel.
6.08 ABSENCE OF LITIGATION. No action or proceeding shall have been
---------------------
instituted or threatened on or before the Closing Date or pertaining to the
acquisition contemplated hereby or otherwise, the result of which could be
materially adverse to the assumption, service and operation of Purchaser of the
assets purchased and liabilities assumed hereunder.
ARTICLE VII
TERMINATION
7.01 TERMINATION. This Agreement shall terminate and be of no
-----------
further force or effect between the parties hereto, and the parties shall be
released from all further obligations hereunder (except with respect to any
liability for breach of any duty or obligation arising prior to the date of
termination), upon the earlier occurrence of any of the following:
A. Purchaser's election, in its sole and absolute discretion, not to
proceed with this Agreement and the transactions contemplated herein at the end
of a period of thirty (30) days following the date hereof (the "Due Diligence
Period"). Such election shall be in writing and delivered to Seller within five
(5) business days following the end of the Due Diligence Period. If
19
Purchaser shall elect to terminate this Agreement under this Section 7.01A, such
termination shall be without any liability to either of the parties hereto.
B. Termination pursuant to Section 7.02.
C. Upon the expiration of fifteen (15) days after the Office of
Thrift Supervision (or its successor), the Federal Deposit Insurance
Corporation, the Georgia Department of Banking and Finance and/or any other
appropriate regulatory authority issues a decision denying or refusing to grant
the approval or consent required to be obtained pursuant to this Agreement,
unless within said period Seller and Purchaser agree in writing to submit or
resubmit an application to or appeal the decision of the regulatory authority
which has denied or refused to grant said approval.
D. Immediately upon the expiration of thirty (30) days from the date
that either party hereto has given notice to the other party hereto of such
other party's breach or misrepresentation of any condition, warranty,
representation or covenant herein; provided, such breach or misrepresentation
results in a condition which materially and adversely affects the value of one
party's performance being tendered by the other, and further provided that no
such termination shall take effect if within said 30-day period the party so
notified shall have substantially corrected the ground for termination as
specified in the aforementioned notice.
E. Upon failure to consummate the transactions contemplated herein
by October 31, 1997.
Anything in the foregoing to the contrary notwithstanding, neither party
hereto shall have the right to terminate this Agreement due to its default or
immaterial default by the other party hereto, and no termination hereunder shall
relieve any party from any liability for its own breach of this Agreement.
7.02 RISK OF LOSS. If the Branch Office, the Real Property or the
------------
Personal Property are damaged by fire or other casualty prior to the Closing
Date and the estimated cost of restoration does not exceed three percent (3%) of
the assessed valuation of the property so damaged, the cost of restoration shall
be an obligation of Seller and the Closing shall proceed pursuant to the terms
of this Agreement with estimated restoration costs paid by Seller and escrowed
at Closing. If the estimated cost of restoration exceeds three percent (3%) of
the assessed valuation of the property so damaged, Purchaser shall have the
option of either: (a) taking the Branch Office, the Real Property and the
Personal Property as is together with either the three percent (3%) limit on
restoration costs or any insurance proceeds payable by virtue of such loss or
damage; or (b) terminating this Agreement without liability to Purchaser.
20
ARTICLE VIII
MISCELLANEOUS
8.01 EXPENSES. Except as otherwise specifically provided in this
--------
Agreement, Seller and Purchaser each shall pay its own expenses in connection
with this Agreement and the transactions contemplated hereby, including counsel
fees and expenses.
8.02 PRESS RELEASES. Seller and Purchaser shall consult with each
--------------
other as to the form and substance of any press release or other public
disclosure of matters relating to this Agreement prior to the distribution or
publication of any such release; provided, however, that nothing herein shall be
deemed to prohibit any party, after such consultation, from making any
disclosure which it or its counsel deems necessary in order to fulfill such
party's disclosure obligations imposed by law.
8.03 NATURE AND SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
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representations and warranties made by Seller and Purchaser in this Agreement or
pursuant hereto shall survive the Closing Date.
8.04 BROKERS. Each of the parties represents and warrants that such
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party has dealt with no broker or finder in connection with any of the
transactions contemplated by this Agreement, and, insofar as such party knows,
no broker or other person is entitled to any commission or finder's fee in
connection with any of these transactions. The parties each agree to indemnify
and hold harmless one another against any loss, liability, damage, cost, claim
or expense incurred by reason of any brokerage commission or finder's fee
alleged to be payable because of any act, omission or statement of the
indemnifying party.
8.05 EXTENSIONS AND WAIVERS. The parties, by written agreement, may:
----------------------
(a) extend the time for the performance of any of the obligations or other acts
of the parties hereto; (b) waive any inaccuracies in the representations
contained in this Agreement or in any document delivered pursuant to this
Agreement; and, (c) waive compliance with or modify any of the covenants
contained in this Agreement and waive or modify the performance of any of the
obligations of the parties hereto. Any agreement on the part of any party for
any such extension, modification or waiver shall be validly and sufficiently
authorized for the purposes of this Agreement if authorized by the Board of
Directors or the President or any Senior Vice President of such party.
8.06 REMOVAL OF SIGNS. Purchaser and Seller shall coordinate the
----------------
removal of signs from the Branch Office bearing Seller's name and the
replacement of such signs with those bearing Purchaser's name. The parties
shall use their best efforts to cause this to occur immediately after the
Closing Date and prior to the next business day. Seller shall pay for the labor
involved in the removal of the signs, as well as any repairs necessary to be
made to the Branch Office as a result of the removal, and Purchaser shall pay
for the new sign bearing Purchaser's name. In the event Seller has not
cooperated in the removal of said signs or repaired the building within seven
(7) days after the Closing Date as provided herein, then Purchaser may remove
said signs or repair the building, which removal or repair shall be at Seller's
expense.
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8.07 AMENDMENTS. Except as otherwise provided herein, the provisions
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of this Agreement may not be amended, supplemented or waived orally, but only by
a writing signed by the party as to whom enforcement of any such amendment,
supplement or waiver is sought and making specific reference to this Agreement.
8.08 FURTHER ASSURANCES. The parties hereby agree from time to time
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to execute and deliver such further and other transfers, assignments and
documents and do all matters and things which may be convenient or necessary to
more effectively and completely carry out the intentions of this Agreement.
8.09 BINDING EFFECT. All of the terms and provisions of this
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Agreement, whether so expressed or not, shall be binding upon, inure to the
benefit of, and be enforceable by the parties and their respective legal
representatives, successors and permitted assigns.
8.10 NOTICES. All notices, requests, consents and other
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communications required or permitted under this Agreement shall be in writing
(including telex, telefaxed and telegraphic communication) and shall be (as
elected by the person giving such notice) hand delivered by messenger or courier
service, telecommunicated, or mailed by registered or certified mail (postage
prepaid), return receipt requested, addressed to:
PURCHASER: With a copy to:
The Central and Southern Bank ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, PLLC
of Georgia ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
President Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
SELLER: With a copy to:
The Central and Southern Bank ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, PLLC
of North Georgia, FSB ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Tren ▇. ▇▇▇▇▇▇,
President Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
or to such other address as any party may designate by notice complying with the
terms of this Section. Each such notice shall be deemed delivered (a) on the
date delivered if by personal delivery; (b) on the date telecommunicated if by
telegraph; (c) on the date of transmission with confirmed answer back if by
telex, telefax or other telegraphic method; and (d) on the date upon which the
return receipt is signed or delivery is refused or the notice is designated by
the postal authorities as not deliverable, as the case may be, if mailed.
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8.11 HEADINGS. The headings, table of contents and list of exhibits
--------
contained in this Agreement are for convenience of reference only, are not to be
considered a part hereof and shall not limit or otherwise affect in any way the
meaning or interpretation of this Agreement.
8.12 SEVERABILITY. If any provision of this Agreement or any other
------------
Agreement entered into pursuant hereto is contrary to, prohibited by or deemed
invalid under applicable law or regulation, such provision shall be inapplicable
and deemed omitted to the extent so contrary, prohibited or invalid, but the
remainder hereof shall not be invalidated thereby and shall be given full force
and effect so far as possible. If any provision of this Agreement may be
construed in two or more ways, one of which would render the provision invalid
or otherwise voidable or unenforceable and another of which would render the
provision valid and enforceable, such provision shall have the meaning which
renders it valid and enforceable.
8.13 ENFORCEMENT COSTS. If any legal action or other proceeding is
-----------------
brought for the enforcement of this Agreement, or because of an alleged dispute,
breach, default or misrepresentation in connection with any provision of this
Agreement, the prevailing party shall be entitled to recover reasonable
attorneys' fees, court costs and all expenses (including, without limitation,
all such fees, costs and expenses incident to arbitration, appellate, bankruptcy
and post-judgment proceedings), incurred in that action or proceeding, in
addition to any other relief to which such party or parties may be entitled.
Attorneys' fees shall include, without limitation, paralegal fees, investigative
fees, expert witness fees, administrative costs, and all other charges billed by
the attorney to the prevailing party.
8.14 REMEDIES CUMULATIVE. Except as otherwise expressly provided
-------------------
herein, no remedy herein conferred upon any party is intended to be exclusive of
any other remedy, and each and every such remedy shall be cumulative and shall
be in addition to every other remedy given hereunder or now or hereafter
existing at law or in equity or by statute or otherwise. No single or partial
exercise by any party of any right, power or remedy hereunder shall preclude any
other or further exercise thereof.
8.15 ENTIRE AGREEMENT. This Agreement represents the entire
----------------
understanding and agreement among the parties with respect to the subject matter
hereof, and supersedes all other negotiations, understandings and
representations (if any) made by and among such parties.
8.16 GOVERNING LAW. Except to the extent governed by federal law,
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this Agreement shall be construed in accordance with the laws of the State of
Georgia applicable to agreements made and to be performed in Georgia.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed, as of the 11th day of August, 1997.
PURCHASER:
[CORPORATE SEAL] THE CENTRAL AND SOUTHERN BANK OF GEORGIA
Attest: /s/ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------- ---------------------
Secretary ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chairman
SELLER:
[CORPORATE SEAL] THE CENTRAL AND SOUTHERN BANK OF NORTH GEORGIA,
FSB
Attest: /s/ By: /s/ Tren ▇. ▇▇▇▇▇▇
------------------ --------------------
Secretary Tren ▇. ▇▇▇▇▇▇
President
24