EXHIBIT 2.1
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PURCHASE AND ASSUMPTION AGREEMENT
THIS AGREEMENT, dated as of October 15, 2001 by and between Southeastern
--
Bank, a financial institution chartered in Georgia having its principal office
in Darien, Georgia ("Purchaser"), and The Park Avenue Bank, a financial
institution chartered in Georgia having its principal office in Valdosta,
Georgia ("Seller"):
W I T N E S S E T H:
WHEREAS, Seller wishes to divest, upon the terms and conditions set forth
herein, certain assets and certain deposit and other liabilities of its branch
banking office located at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ (the
"Branch"):
WHEREAS, Purchaser wishes to buy such assets and assume such liabilities
upon the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and mutual agreements
hereinafter set forth, Seller and Purchaser agree as follows:
ARTICLE I
TRANSFER OF ASSETS AND LIABILITIES
Section 1.1. Transferred Assets.
(a) As of the Effective Date (as defined in Section 2.1 below) and upon
the terms and conditions set forth herein, Seller will sell, assign, transfer,
convey and deliver to Purchaser, and Purchaser will purchase from Seller, all of
the following assets associated with the Branch 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 (the
"Real Property");
(2) except as provided in Section 1.1(b), the furniture, fixtures,
leasehold improvements and other tangible personal property (the "Personal
Property") set forth on Exhibit 1.1(a)(2) hereto;
(3) all equipment leases for equipment located at the Branch (the
"Equipment Leases")
(4) all safe deposit contracts and leases for the safe deposit
boxes located at the Branch as of the Effective Date (the "Safe Deposit
Leases");
(5) all loans transferred pursuant to Section 1.4;
(6) all coins and currency located at the Branch on the Effective
Date (the "Coins and Currency"); and
(7) all of Seller's rights in and to the trade name, trade ▇▇▇▇
and service ▇▇▇▇ "The Bank of Richmond Hill" (the "Trade Name").
(b) Excluded from the assets, properties and rights being transferred,
conveyed and assigned to Purchaser under this Agreement are the assets listed on
Exhibit 1.1(b) hereto, Seller's rights in and to the names "The Park Avenue
Bank" and "PAB Bankshares, Inc.", and any of Seller's corporate logos,
trademarks, trade names, signs, paper stock, forms and other supplies containing
any such logos, trademarks or trade names (the "Excluded Assets"). Seller shall
coordinate with Purchaser to remove the Excluded Assets from the Branch on or
prior to the Effective Date. Seller shall remove the Excluded Assets at its own
cost and will promptly repair any damage caused by Seller in removing the
Excluded Assets; provided, however, the cost of removing the name "The Park
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Avenue Bank" from any signage or any improvements to the Real Property shall be
at the expense of Purchaser.
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Section 1.2. Purchase Price.
(a) As consideration for the purchase of the Branch, Purchaser shall
pay Seller a purchase price equal to the sum of the following:
(1) The net book value of the Real Property and Personal Property
as set forth on the Post-Closing Balance Sheet (as defined in Section 2.3(a)
hereof);
(2) The sum of $100,000 as a fixed premium for the Deposit
Liabilities (as defined in Section 1.3(a) hereof);
(3) The value of the Loans (as defined in Section 1.4 (a) hereof),
including accrued interest, less all payments on the Loans made by borrowers to
Seller from the date hereof to the Closing Date; and
(4) The face amount of the Coins and Currency at the Branch.
(b) In addition, Purchaser shall assume, as of the Effective Date, all
of the duties, obligations and liabilities of Seller relating to the Equipment
Leases, the Safe Deposit Leases, accrued vacation and sick leave of employees
employed by Seller in accordance with Section 1.6 of this Agreement ("Accrued
Vacation and Sick Leave"); and, the Deposit Liabilities (including all accrued
interest relating thereto); provided, that any cash items paid by Seller and not
cleared prior to the Effective Date 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 consistently
applied ("GAAP") as of a date not earlier than 30 days prior to the Effective
Date (the "Pre-Closing Balance Sheet Date") reflecting the assets to be sold and
assigned hereunder and the liabilities to be transferred and assumed hereunder.
Seller agrees to pay to Purchaser at the Closing (as defined in Section 2.1
hereof), in immediately available funds, the excess amount, if any, of the
amount of Deposit Liabilities assumed by Purchaser pursuant to subsection (b)
above as reflected by the Pre-Closing Balance Sheet over the aggregate purchase
price computed in accordance with subsection (a) above, as reflected by the
Pre-Closing Balance Sheet. Purchaser agrees to pay Seller at the Closing, in
immediately available funds, the excess, if any, of the aggregate purchase price
computed in accordance with subsection (a) above, as reflected by the
Pre-Closing Balance Sheet over the amount of Deposit Liabilities assumed by
Purchaser pursuant to subsection (b) above as reflected by the Pre-Closing
Balance Sheet. Amounts paid at Closing shall be subject to subsequent
adjustment based on the Post-Closing Balance Sheet (as defined in Section 2.3
hereof).
Section 1.3. Deposit Liabilities.
(a) "Deposit Liabilities" shall mean all of Seller's duties,
obligations and liabilities relating to the deposit accounts, including
Individual Retirement Accounts, located at the Branch as of the Effective Date.
(b) Except for those liabilities and obligations specifically assumed
by Purchaser under 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, letters of credit, money orders,
interest checks and expense checks issued prior to closing, consignments of U.
S. Government "E" and "EE" bonds and any and all traveler's checks;
(2) Liability or obligations with respect to any litigation,
suits, claims, demands or governmental proceedings;
(3) Deposit accounts associated with lines of credit where the
line of credit is excluded in accordance with Section 1.4 (a); or
(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.
(c) Purchaser agrees to pay in accordance with law and customary
banking practices all properly drawn and presented checks, drafts and withdrawal
orders presented to Purchaser by mail, over the counter or through the check
clearing system of the banking industry, by depositors of the accounts assumed,
whether drawn on the checks, withdrawal or draft forms provided by Seller or by
Purchaser, and in all other respects to discharge, in the usual course of the
banking business, the duties and obligations of Seller with respect to the
balances due and owing to the depositors whose accounts are assumed by
▇▇▇▇▇▇▇▇▇.
▇▇
(▇) If, after the Effective Date, 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.
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 90 days
after the Effective Date and drawn on or chargeable to accounts that have been
assumed by Purchaser.
(e) Purchaser shall (i) assign new account numbers to depositors of
assumed accounts, if needed, in the sole discretion of Purchaser, (ii) notify
such depositors, on or before the Effective Date, in a form and on a date
mutually acceptable to Seller and Purchaser, of Purchaser's assumption of
Deposit Liabilities, and (iii) 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. (If Purchaser so
elects, Purchaser may offer to buy from such depositors their unused seller
check, draft and withdrawal order forms.) In addition, 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
shall be in a form mutually agreeable to Seller and Purchaser. Seller shall
approve any correspondence of Purchaser with the customers of the Branch prior
to the Effective Date which approval shall not be unreasonably withheld.
(f) Purchaser shall pay promptly to Seller an amount equivalent to the
amount of any checks, drafts or withdrawal orders credited to an assumed account
as of the Effective Date that are returned to Seller after the Effective Date.
(g) On and after the Effective Date, Purchaser will assume and
discharge Seller's duties and obligations in accordance with the terms and
conditions and laws, rules and regulations that apply to the certificates,
accounts and other Deposit Liabilities assumed under this Agreement.
(h) On and after the Effective Date, 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, subject to Seller's right of access to such records as provided in
this Agreement.
(i) Seller will render a final statement to each depositor of an
account assumed under this Agreement as to transactions occurring through the
Effective Date and will comply with all laws, rules and regulations regarding
tax reporting of transactions of such accounts through the Effective Date.
Seller will not impose periodic fees or blanket charges in connection with such
final statements.
(j) As of the Effective Date, Seller, at its expense, will prepare a
listing of Branch customers who have items presented for payment through
Automated Clearing House ("ACH") originators and will advise such customers to
notify such ACH originators of the transfers and assumptions made pursuant to
the Agreement and to provide such ACH originators with such information and
authorizations required to change the delivery of such items to Purchaser. For
a period of 90 days beginning on the Effective Date, Seller will honor all ACH
items related to accounts assumed under this Agreement that are presented to
Seller. Seller will make no charge to Purchaser for honoring such items. Items
routed or presented after the 90-day period will be returned by Seller to the
presenting party. All items ACH items of Branch customers honored by Seller
after the Effective Date shall be reimbursed by Purchaser to Seller upon demand
by Seller.
Section 1.4. Loans Transferred.
(a) Seller will transfer to Purchaser on the Effective Date, subject to
the terms and conditions of this Agreement, all of Seller's right, title and
interest in (including collateral relating thereto) performing loans maintained,
serviced and listed in Seller's general ledger as loans of the Branch
(collectively the "Loans") including those set forth on Exhibit 1.4(a)(1);
provided, that the Loans do not include (i) the loans listed on Exhibit
1.4(a)(2), and (ii) any loan identified in writing by Purchaser to Seller within
30 days prior to the Effective Date as being unacceptable to Purchase in its
sole discretion. Such excluded loans will remain the property of Seller.
(b) Purchaser will become the beneficiary of credit life insurance
written on direct consumer installment loans.
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(c) In connection with the transfer of any Loans requiring notice to
the borrower, Purchaser and Seller agree to comply with all notice and reporting
requirements of the Loan documents or of any law or regulation.
(d) All Loans transferred to Purchaser shall be valued at their Net
Book Value as reflected on the financial statements of Seller prepared in
accordance with GAAP as of the Effective Date, such value to include accrued
interest.
(e) On and after the Effective Date, Purchaser will be responsible for
maintaining and safeguarding all Loan files, documents and records related to
the Loans in accordance with applicable law and sound banking practices.
(f) If the balance due on any Loan purchased pursuant to this Section
1. 4 has been reduced by Seller as a result of a payment by check received prior
to the Effective Date, which item is returned after the Effective Date, the
asset value represented by the Loan transferred shall be correspondingly
increased and an amount in cash equal to such increase shall be paid by
Purchaser to Seller promptly upon demand.
(g) The standard "dragnet" provisions of security documents which
secure or are contained in other promissory notes made or held by Seller not
constituting the Loans being acquired by Purchaser shall not reach collateral
for a Loan transferred to Purchaser hereunder.
Section 1.5. Safe Deposit Business.
(a) On and after the Effective Date, Purchaser will assume and
discharge Seller's obligations with respect to the safe deposit box business at
the Branch in accordance with the terms and conditions of contracts or rental
agreements related to such business, and Purchaser will maintain all facilities
reasonably necessary for the use of such safe deposit boxes by persons entitled
to use them.
(b) On and after the Effective Date, 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.
Section 1.6. Employee Matters.
(a) Purchaser shall offer employment to all employees employed by
Seller at the Branch at the Effective Date (the "Employees"), in their then
current functional positions at the Branch with remuneration not less than
current levels and benefits generally equivalent to current levels. Employees
shall receive credit for their prior service with Seller under Purchaser's
benefit plans and policies, including its vacation and sick leave policies. As
of the Effective Date, the Employees and their dependents, if any, previously
covered under Seller's health insurance plan shall be covered under Purchaser's
health insurance plan without being subject to any preexisting condition
limitations or exclusions provided such Employees have been employed by Seller
for 12 consecutive months prior to the Effective Date 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 after the Effective Date.
Seller will use its best efforts to maintain the Employees as employees of
Seller at the Branch until the Effective Date. Any Employee whose employment
shall be terminated for any reason prior to the Effective Date or who shall
elect not to be an employee of Purchaser shall be dealt with by Seller in its
sole and absolute discretion. Seller agrees that, for a period of 24 months
after the Effective Date, it will not solicit for employment any Employee who
remains employed by Purchaser.
(c) No employee of the Branch is a third party beneficiary of this
Agreement.
Section 1.7. Records and Data Processing.
(a) On and after the Effective Date, Purchaser shall become responsible
for maintaining the files, documents and records referred to in this Agreement.
Purchaser will preserve and safekeep them as required by applicable law and
sound banking practice for the joint benefit of Seller and Purchaser. After the
Effective Date, 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.
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(b) On and after the Effective Date, 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.
On and after the Effective Date, Purchaser shall be solely responsible for
the security of and insurance on all persons and personal property located in or
about the Branch.
Section 1.9. Taxes and Fees; Proration of Certain Expenses; Allocation Form
8594.
(a) Purchaser shall not be responsible for, or have any liability with
respect to, sales, transfer, income or similar taxes arising out of this
transaction, if any, and Seller agrees that it shall pay, or represents that it
has paid, in a timely manner any and all such taxes. Purchaser shall not be
responsible for any income tax liability of Seller arising from the business or
operations of the Branch on or before the Effective Date, and Seller shall not
be responsible for any tax liabilities of Purchaser arising from the business or
operations of the Branch after the Effective Date. Safe deposit box rental
income, payments under Equipment Leases, utility payments, telephone charges,
real property taxes, personal property taxes, rent, salaries, deposit insurance
premiums, other ordinary operating expenses of the Branch and other revenue or
expenses related to the liabilities assumed or assets purchased hereunder shall
be prorated between the parties as of the Effective Date. To the extent any
such item has been prepaid or received by Seller for a period extending beyond
the Effective Date, there shall be a proportionate monetary adjustment in favor
of Seller or Purchaser as the case may be.
(b) Seller and Purchaser shall allocate the total consideration paid
pursuant to this Agreement, including the deposit base intangible asset and
other identifiable intangible assets acquired by Purchaser pursuant to this
Agreement, in accordance with Section 1060 of the Internal Revenue Code of 1986,
as amended. Accordingly, within 120 days after the Closing, Seller shall
provide Purchaser copies of the Form 8594 and any required exhibits thereto (the
"Asset Acquisition Statement") setting forth the allocation of the total
consideration. Within 20 days after receipt of the Asset Acquisition Statement
(or any proposed revision thereof required to report any updated information),
Purchaser shall propose any changes to Seller or shall indicate its concurrence
with the Asset Acquisition Statement which concurrence shall not be unreasonably
withheld. Seller and Purchaser shall endeavor in good faith to resolve any
differences within 20 days after Seller's receipt of Purchaser's notice of any
proposed changes. The parties agree to file the Asset Acquisition Statement
with their respective federal income tax returns in accordance with the
instructions to Form 8594.
Section 1.10. Real Property.
(a) Seller shall deliver to Purchaser as soon as reasonably possible
after the execution of this Agreement copies of all title information in
possession of or available to Seller, 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.
(b) Purchaser shall notify Seller in writing within 30 days after the
date of this Agreement of any mortgages, pledges, material liens, encumbrances,
restrictions, reservations, tenancies, encroachments, overlaps or other title
exceptions or zoning or similar land use violations related to the Real Property
to which Purchaser reasonably objects (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 which do not materially interfere with the use
of the Real Property as a branch banking facility. Seller shall make a good
faith effort to correct any such Title Defect to Purchaser's reasonable
satisfaction at least 30 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 either to (i) terminate
this Agreement, or (ii) to receive title in its then existing condition. Upon
termination of this Agreement pursuant to this Section 1.10, neither party shall
have any further liability to the other party under this Agreement.
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(c) Purchaser shall have the right to update title matters at Closing
for any changes which may have arisen between the date of Purchaser's original
title search. If such update indicates any new Title Defects, Seller may elect
to delay the Closing for up to 30 days while it makes a good faith effort to
cure any such Title Defect to Purchaser's reasonable satisfaction; provided that
Seller shall not be obligated to bring any lawsuit or make any payments of money
(except to pay liens 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 either to (i) terminate this Agreement,
or (ii) receive title in the then existing condition.
(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. Seller shall have the
right, but not the obligation, to cure any material violation of law relating to
the environment which is discovered by Purchaser's investigation. If Seller
refuses to cure any material violation of law relating to the environment,
Purchaser shall have the option either to (i) purchase the Real Property in its
then existing condition, or (ii) to terminate this Agreement.
ARTICLE II
CLOSING AND EFFECTIVE DATE
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 ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, at 10:00 a.m. local time within 31 business days
following the date of all approvals by regulatory agencies and after all
statutory waiting periods have expired, or at such other place, time or date on
which the parties shall mutually agree. The effective date of this Agreement
(the "Effective Date") shall be 6:00 p.m. local time on the business day on
which the Closing occurs.
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, at the Branch:
(1) Limited warranty deeds transferring title to the Real Property
to Purchaser;
(2) A limited warranty ▇▇▇▇ of sale, in substantially the form
attached hereto as Exhibit 2.2(b)(ii) (the "▇▇▇▇ of Sale"), transferring to
Purchaser all of Seller's interest in the Personal Property, the Trade Name and
in the Loans;
(3) An Assignment and Assumption Agreement, in substantially the
form attached hereto as Exhibit 2.2(b)(iii) (the "Assignment and Assumption
Agreement"), assigning Seller's interest in the Equipment Leases, the Safe
Deposit Leases, and in the Deposit Liabilities;
(4) Consents from third persons that are required to effect the
assignments set forth in the Assignment and Assumption Agreement;
(5) Seller's keys to the safe deposit boxes and Seller's records
related to the safe deposit box business at the Branch;
(6) Seller's files and records related to and evidencing the
Loans;
(7) Seller's records related to the deposit accounts assumed by
Purchaser;
(8) Immediately available funds in the net amount shown as owing
to Purchaser by Seller on the Closing Statement, if any;
(9) The Coins and Currency;
(10) Such of the other assets to be purchased as shall be capable
of physical delivery;
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(11) A certificate of a proper officer of Seller, dated the
Effective Date, 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 on the Effective Date;
(12) Certified copies of (A) the Articles of Incorporation and
Bylaws of Seller and (B) a resolution of the Board of Directors of Seller, or
its Executive Committee, approving the sale of the Branch contemplated hereby;
(13) Such certificates and other documents as Purchaser and its
counsel may reasonably require to evidence the receipt by Seller of all
necessary corporate and regulatory authorizations and approvals for the
consummation of the transactions provided for in this Agreement;
(14) A Closing Statement, substantially in the form attached
hereto as Exhibit 2.2 (b) (iv) (the "Closing Statement"); and
(15) Seller shall prepare at its expense and deliver to Purchaser
magnetic media records in Seller's field format as of the Closing Date, which
records shall contain the information related to the items described in
subsections (b) (6) and (b) (7) above. Such updated records shall be delivered
at such time after Closing as agreed to by the parties.
(c) At the Closing, subject to all the terms and conditions of this
Agreement, Purchaser shall deliver to Seller:
(1) The Assignment and Assumption Agreement;
(2) A certificate and receipt acknowledging the delivery and
receipt of possession of the property and records referred to in this Agreement;
(3) Immediately available funds in the net amount shown as owing
to Seller by Purchaser on the Closing Statement, if any;
(4) A certificate of a proper officer of Purchaser, dated the
Effective Date, 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 on the Effective Date;
(5) Certified copies of (A) the Articles of Incorporation and
Bylaws of the Purchaser and (B) a resolution by the Board of Directors, or its
Executive Committee, of Purchaser approving the purchase of the Branch
contemplated hereby;
(6) Such certificates and other documents as Seller and its
counsel may reasonably require to evidence the receipt of Purchaser of all
necessary corporate and regulatory authorizations and approvals for the
consummation of the transactions provided for in this Agreement; and
(7) The Closing Statement.
(d) All instruments, agreements and certificates described in
this Section 2.2 shall be in form and substance reasonably satisfactory to the
parties' respective legal counsel.
Section 2.3. Post-Closing Adjustments.
(a) Not later than 15 business days after the Effective Date (the
"Post-Closing Balance Sheet Delivery Date"), Seller shall deliver to Purchaser a
balance sheet dated as of the Effective Date and prepared in accordance with
GAAP reflecting the assets sold and assigned and the liabilities transferred and
assumed hereunder (the "Post-Closing Balance Sheet"). Additionally, Seller
shall deliver to Purchaser a list of loans purchased, individually identified by
account number, which list shall be appended to the ▇▇▇▇ of Sale. Seller shall
afford Purchaser and its accountants and attorneys the opportunity to review all
work papers and documentation used by Seller in preparing the Post-Closing
Balance Sheet. Within 15 business days following the Post-Closing Balance Sheet
Delivery Date (the "Adjustment Payment Date"), Seller or Purchaser, as the case
may be, 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 Date to the Adjustment Payment Date at the applicable Federal Funds
Rate (as hereinafter defined).
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(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 Federal Funds Rate.
(c) The Federal Funds Rate shall be the weighted mean of the high and
low rates quoted for Federal Funds in the Money Rates Column of The Wall Street
Journal adjusted as such mean may increase or decrease during the period between
the Effective Date and the Adjustment Payment Date.
ARTICLE III
INDEMNIFICATION
Section 3.1. Seller's Indemnification of Purchaser.
Seller shall indemnify, hold harmless and defend Purchaser from and against
any breach by Seller of any representation or warranty contained herein and all
claims, losses, liabilities, demands and obligations, including reasonable
attorneys' fees actually incurred and expenses, arising out of any actions,
suits or proceedings commenced prior to the Effective Date (other than
proceedings to prevent or limit the consummation of this transaction) relating
to operations at the Branch; 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 actually incurred 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
Date and which are claimed or demanded on or after the Effective Date, or which
arise out of any actions, suits or proceedings commenced on or after the
Effective Date and which relate to operations at the Branch prior to the
Effective Date.
Section 3.2. Purchaser's Indemnification of Seller.
Purchaser shall indemnify, hold harmless and defend Seller from and against
any breach by Purchaser of any representation or warranty contained herein and
all claims, losses, liabilities, demands and obligations, including reasonable
attorneys' fees actually incurred and expenses, arising out of any actions,
suits or proceedings commenced after the Effective Date (other than proceedings
to prevent or limit the consummation of this transaction) relating to operations
at the Branch; and, except as otherwise provided in this Agreement, Purchaser
shall further indemnify, hold harmless and defend Seller from and against all
claims, losses, liabilities, demands and obligations, including reasonable
attorneys' fees actually incurred 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 Purchaser after the Effective Date and which
are claimed or demanded on or after the Effective Date, or which arise out of
any actions, suits or proceedings commenced on or after the Effective Date and
which relate to operations at the Branch after the Effective Date.
Section 3.3. Claims for Indemnity.
(a) A claim for indemnity under Section 3.1 of this Agreement may be
made by any party at any time prior to 24 months after the Effective Date by
the giving of written notice thereof to the other party. Such written notice
shall set forth in reasonable detail the basis upon which such claim for
indemnity is made. In the event that any such claim is made within such
prescribed 24 month period, the indemnity relating to such claim shall survive
until such claim is resolved. Claims not made within such 24 month period shall
cease and no indemnity shall be made therefor.
(b) In the event that any person or entity not a party to this Agreement
shall make any demand or claim or file or threaten to file any lawsuit, which
demand, claim or lawsuit may result in any liability, damage or loss to any
party of the kind for which such party is entitled to indemnification pursuant
to Section 3.1 or Section 3.2 hereof, then, after written notice is provided by
the indemnified party to the other party of such demand, claim or lawsuit, the
other party shall have the option, at its cost and expense, to retain counsel
for the indemnified party to defend any such demand, claim or lawsuit. In the
event that other party shall fail to respond within five days after receipt of
such notice of any such demand, claim or lawsuit, then the indemnified party
shall retain counsel and conduct the defense of such demand, claim or lawsuit as
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it may in its discretion deem proper, at the cost and expense of the other
party. In effecting the settlement of any such demand, claim or lawsuit,
indemnified party shall act in good faith, shall consult with the other party
and shall enter into only such settlement as the other party shall approve (the
other party's approval will be implied if it does not respond within ten days
after its receipt of the notice of such settlement offer).
Section 3.4. Threshold for Indemnification.
Notwithstanding anything to the contrary contained in this Article III, no
indemnification shall be required to be made by any party until the aggregate
amount of all such claims by the indemnified party exceeds $10,000. Once such
aggregate amount exceeds $10,000, the indemnified party shall thereupon be
entitled to indemnification for all amounts of such claims.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Purchaser as follows, which
representations and warranties shall survive the Effective Date for a period of
18 months:
Section 4.1. Corporate Organization.
Seller is a state chartered bank duly organized, validly existing and in
good standing under the laws of the State of Georgia. Seller has the corporate
power and authority to own its properties, to carry on its business as currently
conducted and to effect the transactions contemplated herein.
Section 4.2. No Violation.
The Branch 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 (i) Seller's Articles of Incorporation or Bylaws,
(ii) 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,
(iii) any material statute, law, decree, regulation or order of any governmental
authority, or (iv) 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. Brokers.
All negotiations relative to this Agreement and the transactions
contemplated hereby have been carried on by Seller and Purchaser, and there has
been no participation or intervention by any other person, firm or corporation
employed or engaged by or on behalf of Seller in such a manner as to give rise
to any valid claim against Seller or Purchaser for a brokerage commission,
finder's fee or like commission.
Section 4.6. Personal Property.
Seller owns, and will convey to Purchaser at the Closing, all of Seller's
right, title and interest to all of the Personal Property free and clear of any
claims, mortgages, liens, security interests, pledges or encumbrances of any
kind, except as may otherwise be set forth in this Agreement.
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Section 4.7. Real Property.
Seller makes the following representations 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 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 to the knowledge of Seller, 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 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
which do not materially interfere with the use of the Real Property as a branch.
Section 4.8. Certain Loan Representations.
Seller represents and warrants to Purchaser as of the date of this
Agreement with respect to each of the Loans as follows: (i) all Loans and all
related documentation, including but not limited to promissory notes, loan
agreements, and security interests, have been made and executed in the ordinary
course of business, contain genuine signatures of the named parties thereto, and
are in full force and effect; (ii) all payments of principal and/or interest on
the Loans are current (not more than 45 days past due as to principal and/or
interest); (iii) to the best of Seller's knowledge and belief, none of the
obligors, including borrowers and or guarantors, on any Loan is involved in any
pending case or proceeding under any provision of the United States Bankruptcy
Code, (iv) no material disputes, offsets, counterclaims or other discrepancies
exist, are pending, have been threatened in writing, or to the best of Seller's
knowledge and belief, apply to any of the Loans, none of the Loans is the
subject of any pending or written threats of litigation, have been classified by
any bank regulator or outside or internal auditor as "loss," "doubtful,"
"substandard" or "special mention" or have been placed on non-accrual by Seller
on its books; (v) the rate of interest and all other fees, commissions, and
charges imposed on each Loan are duly authorized by law and not in excess of any
maximum allowed by applicable law; (vi) all requirements of applicable state or
federal laws or regulations (including, without limitation, the Truth-in-Lending
Act and the Equal Credit Opportunity Act and Regulations Z and B promulgated
thereunder) have been properly and timely complied with in all material respects
in connection with each such Loan; and (vii) each security instrument (including
without limitation, each deed of trust, deed to secure debt, mortgage,
assignment, pledge and security agreement) taken or granted in connection with
any such Loan creates a valid and enforceable security interest in the property
described therein which has been duly perfected and has the priority reflected
in the loan file relating to such Loan subject as to enforceability to the
subsequent application of bankruptcy or similar laws.
Section 4.9. Financial Statements.
Seller has delivered to Purchaser prior to the execution of this Agreement,
copies of the annual and monthly financial statements of the Branch for periods
ended April 30, 2001 through and August 31, 2001 and will deliver to Purchaser
copies of all of the financial statements of the Branch prepared subsequent to
the date hereof through the Effective Date. The financial statements of the
Branch (as of the dates thereof and for the periods covered thereby) (i) are or
will be, if dated after the date of this Agreement, in accordance with the books
and records of Seller, which were or will be, materially complete and correct
and which have been or will have been maintained in accordance with good
business practices and (ii) present or will present the financial position of
the Branch as of the dates indicated and the results of operations of the Branch
for the periods indicated, all in accordance with GAAP (subject, in the case of
interim financial statements, to normal recurring period and adjustments that
are not material to the Branch.)
Section 4.10. Absence of Material Adverse Change.
Since August 31, 2001 and through the Effective Date, except as
specifically contemplated by this Agreement, there has not been (i) any change
in the condition (financial or otherwise), results of operations, business,
prospects, assets, or liabilities of the Branch or with respect to the manner in
which Seller conducts the business or operations of the Branch that could result
in a material adverse effect on the Branch; (ii) any breach, default, or
termination under any material agreement by Seller relating to the Branch; (iii)
any increase in the compensation payable or to become payable to officers,
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managers or employees of the Branch; (iv) the termination of employment by
Seller of any officer, manager, or employee of the Branch; or (v) any other
transaction, agreement or commitment entered into or affecting the Branch's
business, operations, assets, or liabilities except in the ordinary course of
business.
Section 4.11. Litigation.
There are no pending or, to the best of Seller's knowledge, threatened,
lawsuits, administrative proceedings, arbitrations, reviews, or formal or
informal complaints or investigations by any individual, corporation,
partnership, governmental body, or other entity against or relating to the
Branch or any of its officers, managers or employees that could have a material
adverse effect on the Branch and its business and operations.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to Seller as follows, which
representations and warranties shall survive the Effective Date for a period of
18 months:
Section 5.1. Corporate Organization.
Purchaser is a state chartered 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 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 will violate or
conflict with (i) the Articles of Incorporation or Bylaws of Purchaser, (ii) any
material provision of any material agreement or any other material restriction
of any kind to which Purchaser is a party or by which Purchaser is bound, or
(iii) any material statute, law, decree, regulation or order of any governmental
authority, or (iv) 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. Brokers.
All negotiations relative to this Agreement and the transactions
contemplated hereby have been carried on by Seller and Purchaser, and there has
been no participation or intervention by any other person, firm or corporation
employed or engaged by or on behalf of Purchaser in such a manner as to give
rise to any valid claim against Seller or Purchaser for a brokerage commission,
finder's fee or like commission.
ARTICLE VI
OBLIGATIONS OF PARTIES PRIOR TO AND AFTER EFFECTIVE DATE
Section 6.1. Full Access.
Seller shall afford to the officers and authorized representatives of
Purchaser, upon reasonable prior notice and subject to Seller's normal security
requirements, access to the properties, books and records pertaining to the
Branch in order that Purchaser may have full opportunity to make reasonable
investigations, at reasonable times without interfering with the normal business
and operations of the Branch, or the affairs of Seller relating to the Branch.
The officers of Seller shall furnish Purchaser with such additional financial
and operating data and other information as to its business and properties at
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the Branch, 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
credit information, relating to the Loans will be made available for review by
Purchaser no later than ten days after the execution of this Agreement.
Section 6.2. Applications for Approval to Effect Purchase of Assets and
Assumption of Liabilities.
Within 30 days following the execution of this Agreement, Purchaser shall
prepare and file applications required by law with the appropriate regulatory
authorities for approval to purchase and assume the aforesaid assets and
liabilities to establish a branch bank at the location of the Branch, and to
effect in all other respects the transactions contemplated herein. Purchaser
shall process such applications in a diligent manner and on a priority basis and
to provide Seller promptly with a copy of such applications as filed (except for
any confidential portions thereof) and all material notices, orders, opinions,
correspondence and other documents with respect thereto, and to use its best
efforts to obtain all necessary regulatory approvals on the date hereof.
Purchaser shall promptly notify Seller upon receipt by Purchaser of notification
of any significant development with respect to any application or that any
application provided for hereunder has been denied. Seller shall provide such
assistance and information to Purchaser as shall be reasonably necessary for
Purchaser to comply with the requirements of the applicable regulatory
authorities.
Section 6.3. Conduct of Business; Maintenance of Properties.
From the date hereof until the Effective Date, Seller covenants that it
will:
(a) Carry on the business of the Branch substantially in the same
manner as on the date hereof, use all reasonable efforts to preserve intact its
current business organization and preserve its business relationships with
depositors, customers and others having business relationships with it and whose
accounts will be retained at the Branch;
(b) Cooperate with and assist Purchaser in assuring the orderly
transition of the business of the Branch to Purchaser from Seller;
(c) Maintain the Branch in its current condition, ordinary wear and
tear excepted; and
(d) Not change its deposit rates and terms for customers of the Branch
other than routine changes consistently followed by its other branches or
subsidiary financial institutions within the State of Georgia.
Section 6.4. No Solicitation by Seller.
For a period of 60 months after the Effective Date, Seller shall not:
(a) Specifically target and solicit customers of the Branch utilizing
any customer or mailing list which consists primarily of customers of the
Branch; provided, however, these restrictions shall not restrict general mass
mailings, statement stuffers and other similar communications directed to all
the current customers of Seller or Seller's affiliates, or to the public or
newspaper, radio 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; or
(b) Own or operate, directly or indirectly, a facility or facilities
which accepts deposits or extends credit or both in ▇▇▇▇▇ County, Georgia.
Section 6.5. Further Actions.
The parties hereto shall execute and deliver such instruments and take such
other actions as the other party may reasonably require in order to carry out
the intent of this Agreement.
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Section 6.6. Fees and Expenses.
Purchaser shall be responsible for the costs of all its own attorneys' and
accountants' fees and expenses, recording costs, and other expenses arising in
connection therewith. Seller shall be responsible for its own attorneys' and
accountants' fees and expenses, transfer fees, and documentary stamps, related
to this transaction.
Section 6.7. Breaches with Third Parties.
Nothing in this Agreement shall constitute an agreement to assign or the
assignment of any material claim, contract, license, lease, commitment, sales
order or purchase order or any material claim or right or any benefit arising
thereunder or resulting therefrom if an assignment or an attempted assignment
thereof, without the consent of a third party thereto, would constitute a breach
thereof or materially affect the rights of Purchaser or Seller thereunder; and
any transfer or assignment to the Purchaser or Seller of any material property
or property rights or any contract or agreement which shall require the consent
or approval of any third party, shall be made subject to such consent or
approval being obtained.
Section 6.8. Insurance.
On the Effective Date, Seller will discontinue its insurance coverage
maintained in connection with the Branch and the activities conducted thereon.
Purchaser shall be responsible for insurance protection for the Branch's
premises and the activities conducted thereon immediately following the
Effective Date. Pending the Closing, risk of loss shall be the responsibility
of Seller.
Section 6.9. 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. If in the opinion of legal counsel to Purchaser, the
transaction is a material transaction as to Purchaser so as to result in the
necessity of a public announcement by it, Seller consents to such public
announcement after Seller has notified the Employees of the transaction.
Further, Seller and Purchaser acknowledge the sensitivity of this transaction to
the Employees and no announcements or communications with these Employees shall
be made without the prior approval of Seller.
Section 6.10. Further Negotiations.
Each party recognizes and acknowledges that between the date of this
Agreement and the Effective Date, each will expend a great deal of time and
expense in proceeding in good faith to close the transaction. Accordingly,
neither Purchaser nor Seller will conduct, initiate or continue any discussions
or negotiations or enter into any understanding, arrangements or agreements with
any other party or entity in connection with the matters set forth herein prior
to the Effective Date.
Section 6.11. Notification of Customers, Etc.
Promptly after the Effective Date, Purchaser will (i)) notify all customers
of the Branch as of the Effective Date of the consummation of the transactions
contemplated by this Agreement, and (ii) provide all appropriate notices to the
FDIC, the Georgia Department of Banking and Finance and any other appropriate
regulatory authorities required from Purchaser as a result of the consummation
of these transactions. As soon as practicable and, in any event, no later than
30 calendar days after the Effective Date, Purchaser will issue new checks,
draft forms, loan coupon books and deposit slips reflecting its transit and
routing number to customers of the Branch able to access accounts through either
checks or drafts. Purchaser shall use its best efforts to encourage these
customers to begin using these checks and cease using checks bearing Seller's
name.
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
Date, 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 Date 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.
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Section 7.2. Obligations Performed.
Seller shall (i) deliver or make available to Purchaser those items
required by Section 2.2 hereof and (ii) 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 Date.
Section 7.3. No Adverse Litigation.
On the Effective Date, no action, suit or proceeding shall be pending or
threatened against Seller which is reasonably likely to (i) materially and
adversely affect the business, properties and assets of the Branch, or (ii)
materially and adversely affect the transactions contemplated herein.
Section 7.4. Regulatory Approval.
Purchaser shall have received all necessary regulatory approvals of the
transactions provided in this Agreement, all notice and waiting periods required
by law to pass shall have passed, no proceeding to enjoin, restrain, prohibit or
invalidate such transactions shall have been instituted or threatened, and any
conditions of any regulatory approval shall have been met.
ARTICLE VIII
CONDITIONS TO SELLER'S OBLIGATIONS
The obligation of Seller to complete the transactions contemplated in this
Agreement are conditioned upon fulfillment, on or before the Effective Date, 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 Date 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 (i) deliver to Seller those items required by Section 2.2
hereof, and (ii) 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 Date.
Section 8.3. No Adverse Litigation.
On the Effective Date, no action, suit or proceeding shall be pending or
threatened against Purchaser or Seller which might materially and adversely
affect the transactions contemplated hereunder.
Section 8.4. Regulatory Approval.
Purchaser shall have received from the appropriate regulatory authorities
approval of the transactions contemplated herein, all notice and waiting periods
required by law to pass shall have passed, no proceeding to enjoin, restrain,
prohibit or invalidate such transactions shall have been instituted or
threatened, and any conditions of any regulatory approval shall have been met.
ARTICLE IX
TERMINATION
Section 9.1. Methods of Termination.
This Agreement may be terminated in any of the following ways:
(a) by either Purchaser or Seller, in writing 5 days in advance of such
termination, if the Closing has not occurred by January 31, 2002;
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(b) at any time on or prior to the Effective Date by the mutual consent
in writing of Purchaser and Seller;
(c) on the Effective Date, 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;
(d) on the Effective Date, 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;
(e) any time on or prior to the Effective Date, 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 Date;
(f) by Seller in writing at any time after any applicable regulatory
authority has denied approval of any application of Purchaser for approval of
the transactions contemplated herein; or
(g) in accordance with the termination provisions of either Section
1.10 or Section 9.2 hereof.
Section 9.2. Procedure Upon Termination.
In the event of termination pursuant to Section 9.1 hereof, and except as
otherwise stated therein, written notice thereof shall be given to the other
party, and this Agreement shall terminate immediately upon receipt of such
notice unless an extension is consented to by the party having the right to
terminate.
If this Agreement is terminated as provided herein,
(a) each party will return all documents, work papers and other
materials 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.
(c) Seller shall have the right to sell and Purchaser shall be
obligated to purchase any or all of the loans made or approved by Seller to
customers of the Branch provided such loans are approved by the parties and are
made or approved during the period beginning October 15, 2001 and ending on the
--
date this Agreement is terminated.
Section 9.3. Bust-up Fee.
If prior to the Effective Date, this Agreement is terminated by either
party as a result of the other party's willful breach of such party's
representations, warranties or agreements set forth herein of this Agreement,
such party shall pay to the non-breaching party as its sole and exclusive remedy
resulting from such termination, an amount in cash equal to the sum of: (i) the
reasonable direct costs and expenses incurred by or on behalf of the
non-breaching party in connection with the transactions contemplated by this
Agreement, plus, (ii) the sum of $100,000, which sum represents compensation for
the non-breaching party's loss as the result of the transactions contemplated by
this Agreement not being consummated.
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.
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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 (i) any inaccuracies in the
representations and warranties contained herein or in any document delivered
pursuant hereto, or (ii) 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 (other than information
which is a matter of public knowledge or which has heretofore been published in
any publication for public distribution or which has heretofore or which is
hereafter filed as public information with any governmental authority) shall not
at any time be used for any business purpose or disclosed by such party to third
persons other than such party's employees, representatives or agents. This
covenant and agreement shall survive the consummation of the transactions
contemplated herein.
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: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, President
PAB Bankshares, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
FAX: 229/▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Jr., Esquire
Coleman, Talley, Newbern, Kurrie,
Preston & Holland, LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
FAX: 229/▇▇▇-▇▇▇▇
If to Purchaser: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III, Chairman
Southeastern Bank
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
FAX: 912/▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esquire
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
FAX: 404/▇▇▇-▇▇▇▇
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.
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Section 10.6. Counterparts.
This Agreement may be executed simultaneously in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
Section 10.7. Headings.
The headings of the Sections and Articles of this Agreement are inserted
for convenience only and shall not constitute a part thereof.
Section 10.8. Governing Law.
This Agreement shall be governed by, and construed in accordance with, the
laws of the State of Georgia.
Section 10.9. Sole Agreement.
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.
Section 10.10. Expenses.
Except as otherwise 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 10.11. Severability.
If any provision of this Agreement is invalid or unenforceable, the balance
of this Agreement shall remain in effect.
Section 10.12. Parties In Interest.
Nothing in this Agreement, express or implied, is intended or shall be
construed to confer upon or give to any person (other than the parties hereto,
their successors and permitted assigns) any rights or remedies under or by
reason of this Agreement, or any term, provision, condition, undertaking,
warranty, representation, indemnity, covenant or agreement contained herein.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their duly authorized officers as of the date first written above.
ATTEST: "SELLER"
THE PARK AVENUE BANK
By: R. ▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------ -----------------------------
Its: EVP ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
----------------------------
(BANK SEAL)
ATTEST: "PURCHASER"
SOUTHEASTERN BANK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III
------------------------ -------------------------------
Its: Secretary ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III, Chairman
----------------------------
(BANK SEAL)
83