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EXHIBIT 10.6
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this "Agreement") is entered into and effective
as of the 27th day of October, 1998, by and between New Commerce National Bank
(In Organization), a National Banking Association (the "Company"), and The
Bankers Bank (the "Escrow Agent").
W I T N E S S E T H :
WHEREAS, the Company proposes to offer and sell (the "Offering") up to
1,000,000 shares of Common Stock, $5.00 par value per share (the "Shares"), to
investors at $10.00 per Share pursuant to a registered public offering; and
WHEREAS, the Company desires to establish an escrow for funds
forwarded by subscribers for Shares, and the Escrow Agent is willing to serve
as Escrow Agent upon the terms and conditions herein set forth.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. DEPOSIT WITH ESCROW AGENT.
(a) The Escrow Agent agrees that it will from time to time
accept, in its capacity as escrow agent, subscription funds for the Shares (the
"Escrowed Funds") received by it from subscribers or from the Company when it
has received checks from subscribers. All checks shall be made payable to the
Escrow Agent. If any check does not clear normal banking channels in due
course, the Escrow Agent will promptly notify the Company. Any check which does
not clear normal banking channels and is returned by the drawer's bank to
Escrow Agent will be promptly turned over to the Company along with all other
subscription documents relating to such check. Any check received that is made
payable to a party other than the Escrow Agent shall be returned to the Company
for return to the proper party. The Company in its sole and absolute discretion
may reject any subscription for shares for any reason and upon such rejection
it shall notify and instruct the Escrow Agent in writing to return the Escrowed
Funds by check made payable to the subscriber.
(b) Subscription agreements for the Shares shall be reviewed for
accuracy by the Company and, immediately thereafter, the Company shall deliver
to the Escrow Agent the following information: (i) the name and address of the
subscriber; (ii) the number of Shares subscribed for by such subscriber; (iii)
the subscription price paid by such subscriber; (iv) the subscriber's tax
identification number certified by such subscriber; and (v) a copy of the
subscription agreement.
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2. INVESTMENT OF ESCROWED FUNDS. Upon collection of each check
by the Escrow Agent, the Escrow Agent shall invest the funds in deposit
accounts or certificates of deposit which are fully insured by the Federal
Deposit Insurance Corporation or another agency of the United States
government, short-term securities issued or fully guaranteed by the United
States government, or such other investments as the Escrow Agent and the
Company shall agree. The Company shall provide the Escrow Agent with
instructions from time to time concerning in which of the specific investment
instruments described above the Escrowed Funds shall be invested, and the
Escrow Agent shall adhere to such instructions. Interest and other earnings
shall start accruing on such funds as soon as such funds would be deemed to be
available for access under applicable banking laws and pursuant to the Escrow
Agent's own banking policies.
3. DISTRIBUTION OF ESCROWED FUNDS. The Escrow Agent shall
distribute the Escrowed Funds in the amounts, at the times, and upon the
conditions hereinafter set forth in this Agreement.
(a) If at any time on or prior to the expiration date of the
offering as described in the prospectus relating to the offering (the "Closing
Date"), (i) the Escrow Agent has certified to the Company in writing that the
Escrow Agent has received at least $5,500,000 in Escrowed Funds, and (ii) the
Escrow Agent has received a certificate from the President or the Chairman of
the Board of the Company that all other conditions to the release of funds as
described in the Company's Registration Statement filed with the Comptroller of
the Currency pertaining to the public offering have been met, then the Escrow
Agent shall deliver the Escrowed Funds to the Company to the extent such
Escrowed Funds are collected funds. If any portion of the Escrowed Funds are
not collected funds, then the Escrow Agent shall notify the Company of such
facts and shall distribute such funds to the Company only after such funds
become collected funds. For purposes of this Agreement, "collected funds" shall
mean of all funds received by the Escrow Agent which have cleared normal
banking channels.
(b) If the Escrowed Funds do not, on or prior to the Closing
Date, become deliverable to the Company based on failure to meet the conditions
described in Paragraph 3(a), or if the Company terminates the offering at any
time prior to the Closing Date and delivers written notice to the Escrow Agent
of such termination (the "Termination Notice"), the Escrow Agent shall return
the Escrowed Funds which are collected funds as directed in writing by the
Company to the respective subscribers in amounts equal to the subscription
amount theretofore paid by each of them. All uncleared checks representing
Escrowed Funds which are not collected funds as of the initial Closing Date
shall be collected by the Escrow Agent, and together with all related
subscription documents thereof shall be delivered to the Company by the Escrow
Agent, unless the Escrow Agent is otherwise specifically directed in writing by
the Company.
4. DISTRIBUTION OF INTEREST. Any interest earned on the Escrowed
Funds shall be retained by the Company.
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5. FEE OF ESCROW AGENT. The escrow account will accrue a service
charge of $15.00 per month. In addition, a $20.00 per check fee will be charged
if the escrow account has to be refunded due to a failure to complete the
subscription All of these fees are payable upon the release of the Escrowed
Funds, and the Escrow Agent is hereby authorized to deduct such fees from the
Escrow Funds prior to any release thereof pursuant to Section 3 hereof.
6. LIABILITY OF ESCROW AGENT.
(a) In performing any of its duties under the Agreement, or upon
the claimed failure to perform its duties hereunder, the Escrow Agent shall not
be liable to anyone for any damages, losses or expenses which it may incur as a
result of the Escrow Agent so acting, or failing to act; provided, however, the
Escrow Agent shall be liable for damages arising out of its willful default or
misconduct or its gross negligence under this Agreement. Accordingly, the
Escrow Agent shall not incur any such liability with respect to (i) any action
taken or omitted to be taken in good faith upon advice of its counsel or
counsel for the Company which is given with respect to any questions relating
to the duties and responsibilities of the Escrow Agent hereunder; or (ii) any
action taken or omitted to be taken in reliance upon any document, including
any written notice or instructions provided for this Escrow Agreement, not only
as to its due execution and to the validity and effectiveness of its provisions
but also as to the truth and accuracy of any information contained therein, if
the Escrow Agent shall in good faith believe such document to be genuine, to
have been signed or presented by a proper person or persons, and to conform
with the provisions of this Agreement.
(b) The Company agrees to indemnify and hold harmless the Escrow
Agent against any and all losses, claims, damages, liabilities and expenses,
including, without limitation, reasonable costs of investigation and counsel
fees and disbursements which may be imposed by the Escrow Agent or incurred by
it in connection with its acceptance of this appointment as Escrow Agent
hereunder or the performance of its duties hereunder, including, without
limitation, any litigation arising from this Escrow Agreement or involving the
subject matter thereof; except, that if the Escrow Agent shall be found guilty
of willful misconduct or gross negligence under this Agreement, then, in that
event, the Escrow Agent shall bear all such losses, claims, damages and
expenses.
(c) If a dispute ensues between any of the parties hereto which,
in the opinion of the Escrow Agent, is sufficient to justify its doing so, the
Escrow Agent shall retain legal counsel of its choice as it reasonably may deem
necessary to advise it concerning its obligations hereunder and to represent it
in any litigation to which it may be a part by reason of this Agreement. The
Escrow Agent shall be entitled to tender into the registry or custody of any
court of competent jurisdiction all money or property in its hands under the
terms of this Agreement, and to file such legal proceedings as it deems
appropriate, and shall thereupon be discharged from all further duties under
this Agreement. Any such legal action may be brought in any such court as the
Escrow Agent shall determine to have jurisdiction thereof. In connection with
such dispute, the Company shall indemnify the Escrow Agent against its court
costs and reasonable attorney's fees incurred.
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(d) The Escrow Agent may resign at any time upon giving thirty
(30) days' written notice to the Company. If a successor escrow agent is not
appointed by Company within thirty (30) days after notice of resignation, the
Escrow Agent may petition any court of competent jurisdiction to name a
successor escrow agent, and the Escrow Agent herein shall be fully relieved of
all liability under this Agreement to any and all parties upon the transfer of
the Escrowed Funds and all related documentation thereto, including appropriate
information to assist the successor escrow agent with the reporting of earnings
of the Escrowed Funds to the appropriate state and federal agencies in
accordance with the applicable state and federal income tax laws, to the
successor escrow agent designated by the Company appointed by the court.
7. APPOINTMENT OF SUCCESSOR. The Company may, upon the delivery
of thirty (30) days' written notice appointing a successor escrow agent to the
Escrow Agent, terminate the services of the Escrow Agent hereunder. In the
event of such termination, the Escrow Agent shall immediately deliver to the
successor escrow agent selected by the Company all documentation and Escrowed
Funds including interest earnings thereon in its possession, less any fees and
expenses due to the Escrow Agent or required to be paid by the Escrow Agent to
a third party pursuant to this Agreement.
8. NOTICE. All notices, requests, demands and other
communications or deliveries required or permitted to be given hereunder shall
be in writing and shall be deemed to have been duly given three days after
having been deposited for mailing if sent by registered mail, or certified mail
return receipt requested, or delivery by courier, to the respective addressees
set forth below:
IF TO THE SUBSCRIBERS FOR SHARES: To their respective addresses as
specified in their Subscription
Agreements.
THE COMPANY New Commerce Bank (Proposed)
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Attention: ▇▇▇ ▇▇▇▇▇▇▇
President
WITH A COPY TO: ▇.▇. ▇▇▇▇▇▇▇▇
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Attention: ▇▇▇▇ ▇. ▇▇▇▇▇
Partner
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THE ESCROW AGENT: The Bankers Bank
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Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Senior Vice President
9. REPRESENTATION OF THE COMPANY. The Company hereby
acknowledges that the status of the Escrow Agent with respect to the offering
of the Shares is that of agent only for the limited purposes herein set forth,
and hereby agrees it will not represent or imply that the Escrow Agent, by
serving as the Escrow Agent hereunder or otherwise, has investigated the
desirability or advisability in an investment in the Shares, or has approved,
endorsed or passed upon the merits of the Shares, nor shall the Company use the
name of the Escrow Agent in any manner whatsoever in connection with the offer
or sale of the Shares, other than by acknowledgement that it has agreed to
serve as Escrow Agent for the limited purposes herein set forth.
10. GENERAL.
(a) This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Georgia.
(b) The section headings contained herein are for reference
purposes only and shall not in any way affect the meaning or interpretation of
this Agreement.
(c) This Agreement sets forth the entire agreement and
understanding of the parties with regard to this escrow transaction and
supersedes all prior agreements, arrangements and understandings relating to
the subject matter hereof.
(d) This Agreement may be amended, modified, superseded or
canceled, and any of the terms or conditions hereof may be waived, only by a
written instrument executed by each party hereto or, in the case of a waiver,
by the party waiving compliance. The failure of any part at any time or times
to require performance of any provision hereof shall in no manner affect the
right at a later time to enforce the same. No waiver in any one or more
instances by any part of any condition, or of the breach of any term contained
in this Agreement, whether by conduct or otherwise, shall be deemed to be, or
construed as, a further or continuing waiver of any such condition or breach,
or a waiver of any other condition or of the breach of any other terms of this
Agreement.
(e) 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.
(f) This Agreement shall inure to the benefit of the parties
hereto and their respective administrators, successors and assigns. The Escrow
Agent shall be bound only by
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the terms of this Escrow Agreement and shall not be bound by or incur any
liability with respect to any other agreement or understanding between the
parties except as herein expressly provided. The Escrow Agent shall not have
any duties hereunder except those specifically set forth herein.
(g) No interest in any part to this Agreement shall be assignable
in the absence of a written agreement by and between all the parties to this
Agreement, executed with the same formalities as this original Agreement.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as
the date first written above.
COMPANY: ESCROW AGENT:
NEW COMMERCE BANK (Proposed) THE BANKERS BANK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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President Senior Vice President
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