EXHIBIT 10.27
----------------------------------
ACQUISITION AGREEMENT BETWEEN
FIRST FARMERS AND MERCHANTS CORPORATION
AND COMMUNITY BANK
----------------------------------
EXECUTION COPY
ACQUISITION AGREEMENT
This Acquisition Agreement (the "Agreement") is made and entered into as of the
21st day of December, 2001, by and among First Farmers and Merchants
Corporation., a Tennessee corporation (the "Company") and its wholly-owned
subsidiary, First Farmers and Merchants National Bank of Columbia, a national
banking association (the "Purchaser"), Community Bank, an Alabama banking
corporation (the "Seller") and Community Bancshares, Inc., a Delaware
corporation ("CBI").
W 1 T N E S S E T H:
The Seller has offered for sale its branch offices located at (i) ▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ and (ii) ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ (the "Branches") together with substantially all of the deposit and
Loan business of such Branches.
The Purchaser has received information regarding the Branches and has
offered to purchase substantially all of the assets and liabilities of the
Branches on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt of which is acknowledged, the parties,
intending to be legally bound, agree as follows:
ARTICLE I
DEFINED TERMS
1.01 Definitions. The following terms used in this Agreement shall
have the meanings specified below:
(a) "Core Deposits" means all deposits maintained at the
Branches, exclusive of deposits represented by certificates of deposit in
denominations of $100,000 or more.
(b) "Available Core Deposit Base" means the daily average
total Core Deposit balances, as indicated by the general ledger books of account
of the Branches for the approximately 30-day period immediately preceding the
date of Closing.
(c) "Closing" means the closing of the purchase of the
assets and the assumption of the liabilities of the Branches as provided herein.
(d) "Information Statement" means the Information
pertaining to the Branches prepared and delivered to the Purchaser by the Seller
in November 2001, the receipt of which is acknowledged.
(e) "Loan" means each loan agreement, note or borrowing
arrangement (including, without limitation, leases, credit enhancements,
commitments, guarantees and other interest-bearing assets) to which Seller is a
party and which are on the Branches' books at Closing.
ARTICLE II
SALE OF ASSETS
2.01 Assets Sold. On the terms and subject to the conditions of
this Agreement, at the Closing, the Seller shall transfer, convey, assign and
deliver to the Purchaser and the Purchaser shall purchase and receive from the
Seller, the following assets, properties and rights (the "Purchased Assets"):
(a) all Loans on the Branches' books at Closing at their
respective then outstanding principal amounts, together with accrued interest
thereon; provided, however, that in the event Purchaser's due diligence review
of such Loans reveals that certain of the Loans are undesirable to Purchaser,
Purchaser and Seller agree to negotiate a mutually agreeable adjustment to the
purchase price for such undesirable Loans;
(b) all of the Seller's rights and title to the real
property and improvements located thereon owned or leased by the Seller with
respect to the Branches, with any owned real property and improvements to be
purchased at the fully depreciated net book value thereof (set forth on Exhibit
8.03) and any leased real property and improvements being transferred to
Purchaser by a valid assignment of such lease(s) and an assumption by Purchaser
of the obligations thereunder;
(c) all cash on hand at the Branches at Closing;
(d) the furniture, fixtures and equipment and any
replacements thereof or repairs thereto (together with any manufacturer's
warranties or maintenance or service agreements thereon which are in effect and
are assignable) located in the Branches (exclusive of those items referred to in
Section 2.03 of this Agreement), whether leased or owned as identified on
Exhibit 8.04, with owned property being purchased at the fully depreciated net
book value thereof (set forth in Exhibit 8.04) and any leased property being
transferred to Purchaser by a valid assignment of such lease(s) and an
assumption by Purchaser of the obligations thereunder;
(e) all rights to the extent assignable in, to and under
any vendor single interest insurance or other insurance on collateral
transferred to the Purchaser with the Loans;
(f) any unearned credit life insurance or debt
cancellation premiums under the control of the Seller with respect to Loans sold
to the Purchaser hereunder;
(g) all agreements, contracts, files (written or
electronic), ledgers, or other documents relating to any of the foregoing; and
(h) all real property categorized on the books of the
Branches as "other real estate" at a mutually agreeable price to be negotiated
by Seller and Purchaser following the completion of Seller's due diligence
review of the Branches.
2.02 Value of Equipment and Additions. The Seller represents and
warrants that the net book value of the furniture, fixtures and equipment of the
Branches on Seller's books (excluding the items
157
listed in Section 2.03 of this Agreement) is as set forth in Exhibits 8.03 and
8.04 as of the date of the Information Statement.
2.03 Assets Not Sold. The following are expressly excluded from the
Purchased Assets:
(a) the Seller's signs and logos; and
(b) the Seller's proprietarily marked stationery, forms,
labels, shipping material, brochures, advertising material and similar property;
provided, however, it is the intention of the parties, that items not bearing
proprietary marks and which are necessary or useful in operating the Branches
during the first days after Closing not be removed.
2.04 Documents of Transfer. The sale, transfer, assignment and
delivery of the Purchased Assets pursuant to this Article II shall be effected
by general warranty deeds, bills of sale, endorsements, assignments and other
instruments of transfer and conveyance sufficient to convey title as agreed
hereunder and satisfactory in form and substance to counsel for the Seller and
the Purchaser. At the Closing, the Seller will give the Purchaser possession and
control of the Purchased Assets and assumed liabilities and will deliver to the
Purchaser all keys, combinations, codes and other necessary access devices
relating to the Branches, the Purchased Assets and the assumed liabilities. At
Closing, the Seller will deliver to the Purchaser originals of the promissory
notes, security agreements, and related agreements or information relating to or
evidencing all Loans purchased, to the extent these exist, and otherwise will
deliver the best copies available.
2.05 Removal of Assets Not Sold. As soon as reasonably possible
following the Closing, but no later than one week following Closing (unless
otherwise agreed by Purchaser), the Seller will remove all of its personal
property referred to in Section 2.03 of this Agreement; provided, however, the
Seller shall coordinate with the Purchaser to have the Seller's signs and logos
removed from the Branches at Closing. The Seller shall remove all such signs,
logos and equipment at its own cost and in a manner that will not damage the
premises or improvements or unduly disturb operations.
2.06 Title to Real Property and Leases. The Seller shall provide
the Purchaser with originals or copies of all deeds and leases with respect to
the Branches' real property and improvements, and all real estate records to the
extent held by the Seller relating to the Branches.
2.07 Breaches with Third Parties. Nothing in this Agreement shall
constitute an agreement to assign any claim, contract, license, lease,
commitment, sales order or purchase order or any claim or right or any benefit
arising thereunder or resulting therefrom if an attempted assignment thereof,
without the consent of a third party thereto, would constitute a breach thereof
or would in any way affect the rights of the Seller thereunder so that Purchaser
would not in fact receive all such rights. The Seller will cooperate with the
Purchaser in any arrangement desired to provide Purchaser with the benefits
under any such claims, contracts, licenses, leases, commitments, sales or
purchase orders, including enforcement at the cost of Seller for the benefit of
the Purchaser of any and all rights of the Seller against a third party thereto
arising out of the breach or cancellation by such third party or otherwise.
Seller shall obtain at its sole cost and expense evidence satisfactory to the
Purchaser of transfer or assignment to the Purchaser of any such property or
property rights or any contract or agreement which shall require the consent or
approval of any third party, or shall provide the
158
Purchaser with alternative arrangements with respect to such matters that are
satisfactory to Purchaser. The provisions of this Section 2.07 shall not apply
to title to any real property, lease of, or to any other interest in, real
property, to deposit obligations or to Loans conveyed under this Agreement.
2.08 Payments and Information Received After Closing. The Seller
agrees to forward promptly to the Purchaser:
(a) any payments (properly endorsed without recourse as
necessary) which are received by the Seller on or after the date of Closing that
relate in any way to the Loans being purchased by the Purchaser hereunder,
together with sufficient information so that any such payments may be properly
applied to the extent such information is available to the Seller; and
(b) any notices or other correspondence received on or
after the date of Closing that relate in any way to the Loans purchased or to
other Purchased Assets.
ARTICLE III
ASSUMPTION OF LIABILITIES
3.01 Liabilities Assumed. At the Closing the Purchaser shall assume
and agree to pay and discharge only those specific existing liabilities of the
Branches described in Exhibit 3.01 hereto (the "Assumed Liabilities"). No
assurance is given by the Seller that the Branches' present deposit customers
will become or continue to be customers of the Purchaser, the same being at the
sole discretion of such customers.
3.02 Liabilities Not Assumed. Except for those liabilities
specifically assumed by the Purchaser under Section 3.01 above, the Purchaser is
not assuming any other liabilities or obligations of the Seller, including, but
not limited to the following:
(a) cashier's checks, money orders, interest checks,
official checks, drafts and expense checks issued by the Seller prior to
Closing;
(b) all liabilities and obligations arising from or
connected with the Branches relating to circumstances arising or existing prior
to the Closing; and
(c) all liabilities and obligations of the Seller for
fees, commissions, costs and expenses incurred by the Seller in connection with
the execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby, including, without limitation, legal,
consulting, accounting and appraisal fees and expenses.
3.03 Documentation of Assumption. At Closing the Purchaser shall
deliver to the Seller an undertaking, satisfactory in form and substance to
counsel for the Seller, under which the Purchaser will assume and agree to
perform, discharge and pay the obligations and liabilities assumed by the
Purchaser pursuant to this Agreement. An acceptable form of such undertaking is
attached as Exhibit 3.03 hereto and made a part hereof.
159
3.04 Assumption Subject to Certain Terms. The liabilities being
assumed by the Purchaser pursuant to this Article shall be assumed subject to
the terms and conditions of the contracts of deposit and other written
agreements relating thereto and the laws, rules and regulations applicable
thereto.
3.05 Payment of Items by Seller After Closing. If, subsequent to
the assumption of liabilities pursuant to this Article, the Seller shall
properly honor any valid check or withdrawal on a deposit assumed by Purchaser
("Transferred Account"), then in that event the Purchaser shall pay the Seller
any monies so paid by the Seller to or for the benefit of such Transferred
Account, if there are sufficient available collected funds in such Transferred
Account to fully pay such check or item.
3.06 Payment of Items by Purchaser After Closing. The Purchaser
agrees that after Closing it will pay all properly payable checks, drafts and
withdrawal orders drawn by the parties to the Transferred Accounts if the
available collected balance of each Transferred Account is sufficient to permit
the payment thereof.
3.07 Transfer of Credits by Seller; Information Received After
Closing.
(a) The Seller agrees to transfer to the Purchaser any
deposits accepted by it after the date of Closing for credit to Transferred
Accounts, however the Seller shall be under no obligation to accept such
deposits or for any claims resulting from such procedure.
(b) Any notices or correspondence received by the Seller
on or after the Closing with respect to any liabilities assumed by the Purchaser
hereunder will be sent promptly to the Purchaser.
3.08 Safe Deposit Boxes. The keys, contracts, signature cards and
other material or equipment related to safe deposit boxes located in the
Branches, together with such boxes which shall contain all contents thereof,
shall be delivered by the Seller to the Purchaser at Closing. Safe deposit box
rentals collected by the Seller prior to the Closing shall be prorated between
the Seller and the Purchaser at Closing.
3.09 Seller Not Liable to Pay. In the event any deposit customer
holding a Transferred Account shall demand payment from the Seller for all or
any part of any deposit liabilities assumed by the Purchaser with respect to the
Transferred Account, the Seller shall not be liable or responsible for making
such payment, and the Purchaser shall defend, indemnify and hold the Seller
harmless from and against any and all claims, demands and actions by all such
deposit customers for such payments or liabilities.
3.10 Purchaser Responsible for Returned Items. The Purchaser agrees
to pay promptly to the Seller an amount equal to the amount of any checks,
drafts or withdrawal orders credited to a Transferred Account as of the Closing
date which are returned to the Seller after the Closing date.
3.11 Credit Life Insurance Refunds. Seller and Purchaser shall
negotiate a mutually acceptable agreement with respect to the liabilities for
refunding unearned credit life insurance premiums.
160
ARTICLE IV
ASSUMPTION OF RISKS
4.01 Insurance Policies. Effective immediately upon the time of
Closing, the Seller will discontinue any casualty and public liability insurance
coverage maintained with respect to the premises of the Branches. The Purchaser
shall be solely responsible for all casualty losses and liability claims arising
from the premises of the Branches after the time of Closing. Nothing in this
Section 4.01 shall be construed or deemed to require the Purchaser to insure the
furniture, fixtures or equipment of the Seller which may not be removed from the
Branches at Closing, and the Seller shall solely bear all risk of loss to such
property following Closing.
4.02 Safe Deposit Boxes. Immediately upon the time of Closing, the
Purchaser shall assume all risks arising after the Closing with respect to
granting access to and protecting the contents of the safe deposit boxes located
at the Branches.
4.03 Security of Persons and Property Immediately upon the time of
the Closing, the Seller will discontinue providing any security for persons and
property provided by the Seller prior to Closing. Nothing contained herein shall
be construed to require the Seller to remove any of its security equipment not
being sold to Purchaser until such time as the Seller can reasonably remove or
arrange for the removal of such security equipment without interrupting the
Purchaser's business or the security of the premises of the Branches. The risk
of loss of such equipment shall be borne by the Seller.
ARTICLE V
SETTLEMENT
5.01 Settlement. The amount of cash to be received or paid by
Purchaser at Closing shall be calculated under the formula set forth the
Settlement Statement attached hereto as Exhibit 5.01 and incorporated herein by
reference. The Purchased Assets to be transferred at Closing shall be valued as
provided in Article II of this Agreement. The premium to be paid by Purchaser to
Seller shall be based upon the Available Core Deposit Base as determined in
Section 1.01(b) hereof. The premium due from the Purchaser to the Seller shall
equal seven percent (7%) of the Available Core Deposit Base.
At Closing, the Seller shall deliver to the Purchaser a copy, certified
by a duly authorized officer of the Seller, of such Settlement Statement, which
sets forth the computation of the cash payable to or due from the Purchaser at
Closing, and upon acceptance by the Purchaser, the Seller or the Purchaser, as
the case may be, shall pay said amount to the other at Closing.
5.02 Post-Closing Adjustments to Purchase Price. Within five (5)
business days following the date of Closing, the Seller shall, based upon its
general ledger and other books and records, recalculate the amount of cash to be
received or paid by the Purchaser as of the Closing date using the Final
Settlement Statement attached hereto as Exhibit 5.02 and incorporated herein by
reference, and the amount of cash to be received or paid by the Purchaser shall
be adjusted and paid, by the Seller or the Purchaser, as the case may be as
provided in such Exhibit 5.02.
161
5.03 Casualty and Other Losses Prior to Closing. If the buildings
in which the Branches are located or any other improvements with respect to the
Branches shall be damaged by fire or other casualty, whether insured or
uninsured, and shall not be repaired or restored to its original condition prior
to the Closing, the Purchaser may terminate this agreement without further
liability or require Seller to promptly assign or pay over to Purchaser any
insurance proceeds covering such facility and its contents.
5.04 Pro Rata Adjustments of Expenses. All property taxes, rents
and utility payments, and all similar expenses itemized in a writing delivered
by the Seller to Purchaser a reasonable time before Closing relating to the
ownership and operation of the Branches, and the Federal Deposit Insurance
Corporation ("FDIC") insurance premiums relating to Transferred Accounts, shall
be prorated between the parties as of the date of Closing.
ARTICLE VI
EMPLOYEES
6.01 Transfer of Certain. Employees. Effective at Closing, the
Seller will terminate the employment of all employees assigned to the Branches,
and such employees will become "at will" employees of the Purchaser under such
terms as may be established by Purchaser in its sole discretion, except as
otherwise expressly provided in Section 6.03 below. The Seller and the Purchaser
shall mutually agree upon any additions to or replacements of staff after the
date of this Agreement through Closing, and Seller shall not employ any
employees at the Branches during such time other than on an "at will" basis.
6.02 Re-Employment Restriction. The Seller agrees that for a period
of one year following the Closing it shall not solicit the employment of any of
its former employees who transfer to the Purchaser at Closing.
6.03 Benefits. Each employee of Seller who transfers to the
Purchaser will receive the same pension, profit sharing, insurance, vacation,
sick leave and other benefits as comparable employees of Purchaser. Purchaser
shall give each of Seller's employees who transfer to Purchaser credit for
service with Seller for purposes of any vacation or sick leave policy, and for
purposes of determining vesting (but not eligibility or benefit accrual) under
Purchaser's profit sharing plan.
6.04 Responsibility for Employees Transferring. With respect to all
employees of the Branches transferring to the Purchaser, the Seller will be
responsible for all salaries, wages and benefits payable to such employees
during employment by the Seller up to Closing.
6.05 Employee Information. The Seller shall provide the Purchaser
at times the Purchaser may deem necessary such records and information regarding
such transferred employees' service with the Seller as the Purchaser may
reasonably need for purposes of the Purchaser's employment and benefits program
records including the complete personnel file on each transferring employee. The
Purchaser and the Seller agree to assist each other by providing the employee
information needed to open and close employee files on those employees
transferred. The Seller reserves the right to obtain the employee's prior
consent to release information which in the Seller's sole discretion, the Seller
162
believes should not be released to the Purchaser without the employee's prior
consent. Should information be withheld, the Seller must advise the Purchaser of
such prior to Closing.
ARTICLE VII
ACCESS TO PROPERTIES AND RECORDS
7.01 Access and Confidential Treatment. From and after the date of
this Agreement, the Seller shall permit the Purchaser's agents and
representatives full access, during normal business hours and upon reasonable
notice, to all assets, properties, books, records (except employee records and
information excluded by Section 6.05 hereof), agreements and commitments of the
Seller relating to the Branches, and the Seller shall furnish representatives of
the Purchaser during such period with all such information concerning the
affairs of the Branches as the Purchaser may reasonably request. The Purchaser
will hold in strict confidence all documents and information concerning the
Seller so furnished that is not in the public domain and will not publicly
disclose such documents or information except to its attorneys, accountants, or
other advisers, to regulatory and self-regulatory authorities, or as required by
law or pursuant to legal process (in which case it will seek to obtain
confidentiality orders protecting such documents and information). If the
transactions contemplated by this Agreement are not consummated, all such
documents and information shall promptly be returned to the Seller. Nothing in
this Section 7.01 shall be deemed to require Seller to breach any obligation of
confidentiality if the same is itself disclosed to Purchaser, or to reveal any
proprietary information, trade secrets or marketing or strategic plans.
7.02 Recordkeeping and Access Following Closing. The Purchaser will
preserve and safely keep, for as long as may be required by applicable law, all
of the files, books of account and records delivered to the Purchaser through
Closing related to the Branches for the joint benefit of itself and the Seller,
and shall permit the Seller or its representatives, for proper purposes, at any
reasonable time and at Seller's expense, to inspect, make extracts from or
copies of, any such files, books of account or records as the Seller shall deem
reasonably necessary for the Seller's legitimate business purposes. The Seller
will not use such documents or information for the purpose of competing with the
Purchaser.
ARTICLE VIII
SELLER'S REPRESENTATIONS AND WARRANTIES
The Seller represents and warrants to the Purchaser as follows:
8.01 Corporate Organization. The Seller is a banking corporation
duly organized, validly existing and in good standing under the laws of the
State of Alabama.
8.02 Corporate Authority. The Seller has full corporate right,
power, capacity and authority validly to enter into and to perform this
Agreement and the transactions contemplated by this Agreement, and to sell,
transfer, assign and deliver the Purchased Assets referred to in Article II. The
execution, delivery and performance of this Agreement, and the transactions
contemplated by this Agreement have been duly and validly authorized by all
requisite corporate action, and this Agreement is binding and enforceable
against the Seller in accordance with its terms.
163
8.03 Title to or Right to Occupy Real Estate. Exhibit 8.03
describes all real estate, improvements, and any related rights owned, leased,
or otherwise held by Seller with respect to the Branches, and with respect to
owned property, the fully depreciated net book value thereof. Seller (a) has and
at Closing will have indefeasible fee simple title to, and owns and at Closing
will be the sole owner of all the real property to be purchased by Purchaser
pursuant to Article II, subject to no mortgage, pledge, lien, security interest,
tenant leases, participation, charge, encumbrance or conditional sale of other
title retention agreement except for real estate taxes not yet due and payable,
restrictions, easements and rights of way of record, and (b) is and at Closing
will be the sole lessee with respect to the leases to be assigned to Purchaser
pursuant to said Article II, with the right to convey to Purchaser the leasehold
interest therein so as to assure that Purchaser shall have the full, exclusive
and peaceful possession of such leasehold interest. All real estate and fixtures
will at the time of Closing be in good operating condition and repair, subject
only to ordinary wear and tear, and will otherwise be received in "AS IS"
condition with no other warranties by Seller as to their condition or future
performance, except those warranties related to title.
8.04 Condition of Personal Property. Exhibit 8.04 sets forth by
category or item all of the tangible personal property owned or leased
(identified as such) which is used or useful in connection with the operation of
the Branches, with the fully depreciated net book value of owned property being
also set fort on Exhibit 8.04. The tangible personal property included in the
Purchased Assets is, and at the Closing will be, in good operating condition and
repair, subject only to ordinary wear and tear and will otherwise be received in
"AS IS" condition with no other warranties by Seller as to its condition or
future performance, except those warranties relating to title.
8.05 Status of Loans. (a) Exhibit 8.05 sets forth (i) all of the
Loans of Seller that as of November 30, 2001, were classified by any bank
examiner (whether regulatory or internal) as "Other Loans Specially Mentioned",
"Special Mention", "Substandard", "Doubtful", "Loss", "Classified",
"Criticized", "Credit Risk Assets", "Concerned Loans", "Watch List" or words of
similar import, together with the principal amount of and accrued and unpaid
interest on each such Loan and the identity of the borrower thereunder, and (ii)
by category of Loan (i.e., commercial, consumer, etc.), all of the other Loans
of Seller that as of November 30, 2001, were classified as such, together with
the aggregate principal amount of and accrued and unpaid interest on such Loans
by category.
(b) With respect to each Loan within the Purchased
Assets: the Loan complies in all material RESPECTS with all applicable laws and
is a valid loan enforceable in accordance with its terms; the Seller is the sole
owner thereof, no participation therein having been sold; the Loan is not
pledged or encumbered; the principal balance of the Loan as shown on the
Seller's books and records is true and correct as of the last date shown
thereon; all purported signatures on and executions of any document in
connection with such Loan are genuine and authorized; all loan documentation has
been actually signed or executed by all necessary parties; the Seller has and
will transfer to Purchaser, custody of all documents, or microfilm or photocopy
records thereof related to such Loan and there are no other written or unwritten
agreements, understandings, or other arrangements with respect to such Loan;
provided, however, that all Loans (and any notes, other evidences of
indebtedness or security agreements associated therewith) transferred at Closing
by the Seller to the Purchaser are transferred without recourse and without any
other warranties or representations as to the collectibility of any such Loans,
the value of the collateral securing same or the creditworthiness of any of the
makers, guarantors or other obligors thereof.
164
8.06 No Violations. Subject to receipt of all necessary corporate
and regulatory approvals, the execution, delivery and performance of this
Agreement and the transactions contemplated herein do not and will not violate
any provisions of law to which the Seller is subject and do not and will not
conflict with or result in the violation or breach of any condition or provision
of, or constitute a default under, any contract, right, lease, pledge, lien,
security interest, instrument, indenture, mortgage, charge, encumbrance,
agreement, order, writ, injunction, decree or judgment to which the Seller is a
party or which is binding on Seller or to which any of the property or assets of
Seller is subject. Except as disclosed on Exhibit 8.06, no consent, license,
approval or authorization of or designation, declaration or filing with any
governmental authority or other person or entity is required on the part of
Seller. The Seller is not in default under any lease, agreement, contract,
commitment or other obligation or asset which the Purchaser is assuming or which
affects the property rights being transferred hereunder to the Purchaser.
8.07 Limitations of Warranties. Except as may be expressly
represented or warranted in this Agreement or in any document of transfer, the
Seller makes no representations or warranties whatsoever with regard to any
Purchased Asset being transferred to Purchaser, any liability or obligation
being assumed by the Purchaser or as to any other matter or transaction
contemplated by this Agreement.
8.08. Legal Proceedings.
(a) Except as set forth in Exhibit 8.08, Seller is not a
party to any, and there are no pending or, to Seller's knowledge, threatened,
legal, administrative, arbitral or other proceedings, claims, actions or
governmental or regulatory investigations of any nature against Seller relating
in any way to the Branches, the Loans, the other Purchased Assets and Assumed
Liabilities, or challenging the validity or propriety of the transactions
contemplated by this Agreement.
(b) Except as set forth in Exhibit 8.08, there is no
injunction, order, judgment, decree, or regulatory restriction imposed upon
Seller or the assets of Seller.
8.09. No Fiduciary Accounts. Other than individual retirement
accounts ("IRA's") for which Seller may act as custodian, Seller has no persons
or accounts for which it acts as a fiduciary, including but not limited to
accounts for which it serves as a trustee, agent, custodian, personal
representative, guardian, conservator or investment advisor.
8.10. Environmental Matters. Except as set forth in Exhibit 8.10:
(a) Seller, and to the knowledge of Seller, each of the
Participation Facilities and the Loan Properties (each as hereinafter defined),
are in compliance with all applicable federal, state and local laws, including
common law, regulations and ordinances, and with all applicable decrees, orders
and contractual obligations relating to pollution or the discharge of, or
exposure to, Hazardous Materials (as hereinafter defined) in the environment or
workplace ("Environmental Laws");
(b) There is no suit, claim, action or proceeding,
pending or, to the knowledge of Seller, threatened, before any governmental
entity or other forum in which Seller, any Participation Facility or any Loan
Property, has been or, with respect to threatened proceedings, may be, named as
a
165
defendant (x) for alleged noncompliance (including by any predecessor) with any
Environmental Laws, or (y) relating to the release, threatened release or
exposure to any Hazardous Material whether or not occurring at or on a site
owned, leased or operated by Seller, any Participation Facility or any Loan
Property;
(c) To the knowledge of Seller, during the period of (x)
Seller's ownership or operation of any of their respective current or former
properties, (y) Seller's participation in the management of any Participation
Facility, or (z) Seller's interest in a Loan Property, there has been no release
of Hazardous Materials in, on, under or affecting any such property. To the
knowledge of Seller, prior to the period of (x) Seller's ownership or operation
of current or former properties, (y) Seller's participation in the management of
any Participation Facility, or (z) Seller's interest in a Loan Property, there
was no release of Hazardous Materials in, on, under or affecting any such
property, Participation Facility or Loan Property; and
(d) The following definitions apply for purposes of this
Section: (x) "Hazardous Materials" means any chemicals, pollutants,
contaminants, wastes, toxic substances, petroleum or other regulated substances
or materials, (y) "Loan Property" means any property in which Seller holds a
security interest which security interest will be transferred to Purchaser
pursuant to this Agreement, and, where required by the context, said term means
the owner or operator of such property; and (z) "Participation Facility" means
any facility in which Seller participates in the management and, where required
by the context, said term means the owner or operator of such property.
ARTICLE IX
PURCHASER'S REPRESENTATIONS AND WARRANTIES
The Purchaser represents and warrants to the Seller as follows:
9.01 Corporate Organization. The Purchaser is a national banking
association duly organized, validly existing and in good standing under the laws
of the United States of America and qualified to do business in the State of
Tennessee.
9.02 Corporate Authority. Subject to approval by the Comptroller of
the Currency, the Purchaser has full corporate right, power, capacity and
authority validly to enter into and to perform this Agreement and the
transactions contemplated by this Agreement. The execution, delivery and
performance of this Agreement by the Purchaser have been, or will be prior to
Closing, duly and validly authorized by all requisite corporate action and this
Agreement is binding and enforceable against the Purchaser in accordance with
its terms.
9.03 No Violations. Subject to the conditions set forth in Article
XII below, the execution, delivery and performance of this Agreement and the
transactions contemplated herein do not and will not violate any provision of
law to which the Purchaser or the Company is subject and do not and will not
conflict with or result in the violation or breach of any condition or provision
of, or constitute a default under, any contract, right, lease, pledge, lien,
security interest, instrument, indenture, mortgage, charge, encumbrance,
agreement, order, writ, injunction, decree or judgment to which the Purchaser or
the Company is a party or which is binding on the Purchaser or the Company or to
which any of the property or assets of Purchaser or the Company is subject.
Except as set forth in
166
Article XII, no consent, license, approval or authorization of or designation,
declaration or filing with any governmental authority or other person or entity
is required on the part of the Purchaser in connection with the execution,
delivery or performance of this Agreement or the consummation of the
transactions contemplated herein.
9.04 Regulatory Approvals. The Purchaser will promptly apply for
and in good faith diligently and expeditiously pursue all required regulatory
approvals that it needs to consummate the transactions contemplated hereby.
9.05 Consents of Third Parties. In addition to obtaining the
requisite regulatory approvals, the Purchaser shall use its best efforts to
obtain and preserve any consents or approvals of third parties necessary,
appropriate or expedient to the consummation of the purchase of the Branches,
including, but not limited to, those consents of its lenders.
9.06. Legal Proceedings. Except as set forth in Exhibit 9.06,
Purchaser is not a party to any, and there are no pending or, to Purchaser's
knowledge, threatened, legal, administrative, arbitral or other proceedings,
claims, actions or governmental or regulatory investigations of any nature
challenging the validity or propriety of the transactions contemplated by this
Agreement.
ARTICLE X
ADDITIONAL UNDERTAKINGS OF SELLER
10.01 Conduct of Business Pending Closing. The Seller agrees that
from the date of this Agreement to the date of Closing, it will:
(a) use its reasonable best efforts to maintain the
operations of the Branches as presently conducted, and avoid any act that would
materially and adversely affect the amount or value of the Purchased Assets or
the liabilities being assumed;
(b) operate the business of the Branches only in the
ordinary and usual manner, provide the same services and hours of operation as
is now being provided by such Branches, and use all reasonable efforts to
preserve intact its present business organization, to keep available the
services of its present employees and to preserve its relations with customers
having business dealings with the Branches, except as expressly provided in
Section 3.01 hereof;
(c) maintain fire, casualty, and extended coverage
insurance for the benefit of the Seller and Purchaser, as their interests may
appear, on the Branches and the Purchased Assets in reasonable amounts not less
than that presently held;
(d) maintain its books of account and records concerning
the Branches in the ordinary and usual manner, in accordance with generally
accepted accounting principles applied on a basis consistent with prior years;
and
(e) not take any action which would cause any
representation or warranty made herein to be untrue at the date of Closing.
167
10.02 Documentation Delivered at Closing and Further Assurances. At
the Closing, the Seller shall transfer, assign and deliver to the Purchaser all
original (to the extent these exist and are held by the Seller) and other
records, books, papers, documents, instruments, collateral in its possession and
agreements of Seller relating to the Purchased Assets and the liabilities being
assumed by the Purchaser hereunder, including but not limited to, signature
cards, stop payment orders, contracts, deposit slips, canceled checks,
withdrawal orders and records of accounts which may be requested by the
Purchaser prior to Closing.. The Seller agrees that it will, at the Closing and
at any time and from time to time after the Closing, upon the Purchaser's
request do, execute, acknowledge and deliver, or cause to be done, executed,
acknowledged and delivered, all such further acts, deeds, assignments,
transfers, conveyances and assurances as may be required to complete the process
of assigning, transferring, granting, conveying, assuring and confirming to
Purchaser, any and all of the Purchased Assets and liabilities purchased and
assumed by the Purchaser hereunder and the performance of any or all obligations
of the Seller hereunder.
10.03 Non-Solicitation of Business. The Seller and its subsidiaries
and affiliates will not, for a period of two years after the Closing, (i)
directly indirectly develop, own, or operate any physical location offering
financial services or products within a 25 mile radius of the Branches (except
for any currently operating locations of Seller, its subsidiaries or
affiliates), or (ii) directly compete for or solicit any Transferred Accounts or
any Loans sold hereunder, but the Seller shall be entitled to conduct mass
mailings, statement stuffers and mailings to persons holding accounts with the
Seller outside the Branches or having other relations with the Seller's other
offices, and newspaper, radio, television, billboards and other advertisements
of a general nature. This subsection shall not apply to those deposits and Loans
not transferred to the Purchaser at Closing and the restrictions on the Seller
contained in this section are intended to apply only to the deposits and loan
business that the Seller's customers would normally be expected to conduct at
the Branches and within the Pulaski community.
10.04 Notice to Customers of Sale of Branches. To the extent
required by law or otherwise agreed upon by the parties, the Seller and the
Purchaser shall jointly notify the customers of the Branches affected by the
transaction of the pending transfer of their deposit account, Loan or safe
deposit box to the Purchaser.
10.05 Conversion of Transferred Accounts. The Seller agrees to
cooperate with the conversion of the customer asset and liability accounts in an
orderly and expeditious fashion, and to provide reasonable appropriate support
to the Purchaser for the timely conversion of such accounts, and related data
processing, computer, customer research and information conversions.
10.06 Post-Conversion Processing . After conversion of all accounts
to Purchaser's processing systems, as between Seller and Purchaser, the Seller
shall be and have the rights and obligations of a "Collecting Bank" or
"Intermediary Bank" under Article 4 of the Uniform Commercial Code as adopted in
Alabama (Code of Alabama, 1975, Sections 7-4-101 et. seq.) , with respect to
items drawn on Transferred Accounts received by it for processing. Items
received for processing against the Transferred Accounts shall be grouped and
delivered to Purchaser within the time limits provided by the Alabama Uniform
Commercial Code in a special cash letter separately identified as "Transferred
Accounts Cash Letter". The Purchaser shall indemnify the Seller against all
claims, suits, damages or losses and expenses (including reasonable attorneys'
fees) arising out of any claim by an owner of a Transferred Account that the
Seller is the "Payor Bank" with respect to such items.
168
10.07 Diligence and Good Faith. The Seller will diligently and
expeditiously:
(a) proceed in good faith in seeking the satisfaction of
all conditions set forth in Article XII below (except the conditions set forth
in Section 12.06); and
(b) cooperate in good faith with the Purchaser in its
seeking the satisfaction of all conditions set forth in Article XIII below.
10.08 Indemnity. Seller and CBI hereby jointly and severally agree
to indemnify and hold harmless Purchaser and its officers, directors, employees,
affiliates, and assigns (each a "Purchaser Indemnitee") against, from and in
respect of:
(i) Any damage, expense or deficiency resulting
from any default, misrepresentation, breach of warranty, or
nonfulfillment of any agreement on the part of Seller under this
Agreement or from any material misrepresentation in or omission from
any certificate or other instrument furnished or to be furnished to
Purchaser pursuant to this Agreement.
(ii) Any liability of Seller except the Assumed
Liabilities
(iii) Any and all expenses (including reasonable
attorney fees), obligations, assessments, suits, actions, proceedings,
claims or demands resulting from or in connection with any claim,
liability, or obligation asserted against any Purchaser Indemnitee
arising out of Seller's operations or arising out of Seller's ownership
of the Branches. Seller agrees promptly to advance to any Purchaser
Indemnitee, on demand, any expenses, attorney's fees and disbursements
incurred by any Purchaser Indemnitee, in respect of any liability,
obligation, or claim to which the foregoing indemnity by Seller
relates.
(iv) Any environmental, health, and safety
liabilities arising out of or relating to: (a) the ownership,
operation, or condition at any time on or prior to the Closing Date of
the Branches or any other properties and assets (whether real,
personal, or mixed and whether tangible or intangible) in which Seller
has or had an interest, or (b) any Hazardous Materials or other
contaminants affecting the Purchased Assets.
(v) Any bodily injury (including illness,
disability, and death, and regardless of when any such bodily injury
occurred, was incurred, or manifested itself), personal injury,
property damage (including trespass, nuisance, wrongful eviction, and
deprivation of the use of real property), or other damage of or to any
person, including any employee or former employee of Seller or any
other person for whose conduct any Purchaser Indemnitee is or may be
held responsible, in any way arising from or allegedly arising from any
hazardous activity conducted or allegedly conducted with respect to the
Branches or the operation of the Branches prior to the Closing Date.
(vi) Notwithstanding any other provision of this
Agreement to the contrary, Purchaser and Seller will cooperate with
respect to any environmental cleanup and any related proceeding with
respect to which indemnity may be sought under this Section.
169
ARTICLE XI
ADDITIONAL UNDERTAKINGS OF PURCHASER
11.01 Purchaser's Contact with Customers. The Purchaser and the
Seller, as and to the extent provided in Section 10.04, may jointly notify the
customers of the Branches of the pending transfer of their deposit account, Loan
or safe deposit box to the Purchaser. The Purchaser agrees that any notices,
letters or other material which the Purchaser wishes to send or give to
customers of the Branches prior to Closing shall be approved by the Seller in
advance, which approval shall not be unreasonably withheld. The Purchaser shall
also provide all customers whose accounts are transferring all necessary
checkbooks, check order forms, passbooks, loan coupon books and other materials
bearing the name of the Purchaser which shall be available for use by customers
of the Branches immediately after the Closing. The Purchaser shall also direct
each transferring customer that, effective as of Closing, such customers should
no longer use and should destroy all checkbooks and check order forms of the
Seller pertaining to accounts at the Branches transferred to the Seller. Except,
and only to the extent and manner specifically permitted hereby, the Purchaser
shall not contact, or solicit the Loan and deposit business of any customers of
the Branches prior to the Closing.
11.02 Safe Deposit Box and Night Depository Business. The Purchaser
shall assume and discharge from and after the time of Closing, the duties and
obligations of the Seller with respect to the Branches' safe deposit box and
night depository business. The Purchaser shall maintain all necessary facilities
for the use of such boxes by the renters thereof and night deposit facilities by
the users thereof, during the period for which such persons have paid rent
therefor in advance to the Seller, subject to the provisions of the written
rental and night depository agreements between the Seller and the respective
renters of such boxes or users of such night depository facilities delivered to
the Purchaser.
11.03 Use of Names, Trademarks, Etc. The Purchaser will not, upon
and after the Closing, use the name "Community Bank" or any of the Seller's
trade names, trademarks or service marks for products or services, or any
variation of any such names or marks, nor shall the Purchaser use any name or
marks similar to such names or marks so as to infringe on any protection
afforded thereto under Federal, state or local statutes, laws, rules or
regulations or common law, or which would be misleading or confusingly similar
to such names.
11.04 Diligence and Good Faith. The Purchaser will diligently and
expeditiously:
(a) proceed in good faith in seeking the satisfaction of
all conditions set forth in Section 12.06 and in Article XIII below; and
(b) cooperate in good faith with the Seller in its
seeking the satisfaction of all conditions set forth in Article XII below
(except those conditions set forth in Section 12.06).
11.05 Indemnity. Purchaser and the Company hereby jointly and
severally agree to indemnify and hold harmless Seller and its officers,
directors, employees, affiliates, and assigns (each a " Seller Indemnitee")
against, from and in respect of:
(i) Any damage, expense or deficiency resulting from any
default, misrepresentation, breach
170
of warranty, or nonfulfillment of any agreement on the part of
Purchaser under this Agreement or from any material misrepresentation
in or omission from any certificate or other instrument furnished or to
be furnished to Seller pursuant to this Agreement.
(ii) Any and all expenses (including reasonable attorney
fees), obligations, assessments, suits, actions, proceedings, claims or
demands resulting from or in connection with any claim, liability, or
obligation asserted against any Seller Indemnitee arising out of
Purchaser's operations or arising out of Purchaser's ownership of the
Branches after the Closing Date. Purchaser agrees promptly to advance
to any Seller Indemnitee, on demand, any expenses, attorney's fees and
disbursements incurred by any Seller Indemnitee, in respect of any
liability, obligation, or claim to which the foregoing indemnity by
Purchaser relates.
(iii) Any environmental, health, and safety liabilities
arising out of or relating to: (a) the ownership, operation, or
condition at any time after the Closing Date of the Branches or any
other properties and assets (whether real, personal, or mixed and
whether tangible or intangible) which are transferred to Purchaser
pursuant to this Agreement or (b) any Hazardous Materials or other
contaminants affecting the Purchased Assets after the Closing Date.
(iv) Any bodily injury (including illness, disability, and
death, and regardless of when any such bodily injury occurred, was
incurred, or manifested itself), personal injury, property damage
(including trespass, nuisance, wrongful eviction, and deprivation of
the use of real property), or other damage of or to any person,
including any employee or former employee of Seller or any other person
for whose conduct any Seller Indemnitee is or may be held responsible,
in any way arising from or allegedly arising from any hazardous
activity conducted or allegedly conducted with respect to the Branches
or the operation of the Branches after the Closing Date.
ARTICLE XII
CONDITIONS PRECEDENT TO THE PURCHASER'S OBLIGATIONS
The obligations of the Purchaser to close under this Agreement shall be subject
to the following conditions (all or any of which, except the conditions of
Section 12.06, may be waived in whole or in part by the Purchaser to the extent
permitted by law):
12.01 Representations and Warranties True. The representations and
warranties made by Seller in this Agreement shall have been true and correct
when made and shall be true and correct on and as of the date of Closing with
the same force and effect as though such representations and warranties had been
made on and as of such date.
12.02 Obligations Performed. The Seller shall have performed all
covenants and obligations and complied with all conditions required by this
Agreement to be performed or complied with by it on or before the date of
Closing.
12.03 Certificate of Compliance. The Seller shall have executed and
delivered to the Purchaser a certificate substantially in the form and substance
as attached hereto as Exhibit 12.03, dated as of the date of Closing.
171
12.04 No Adverse Litigation. No action, suit or proceeding shall
have been instituted or threatened against the Seller or the Purchaser by or
before any court or governmental agency to restrain or prohibit, or to obtain
damages in respect of this Agreement or the consummation of the transactions
contemplated hereby which in the opinion of the Purchaser makes it inadvisable
to proceed to Closing under this Agreement.
12.05 Opinion of Counsel. The Purchaser shall have received an
opinion of counsel for the Seller, dated the date of Closing, in substantially
the same form and substance as the opinion attached hereto as Exhibit 12.05 to
the effect that this Agreement and the other documents contemplated by this
Agreement have been duly authorized, executed and delivered by the Seller and
that without making an investigation for such purpose, nothing has come to such
counsel's attention which causes such counsel to believe that any representation
or warranty of Seller contained in this Agreement is inaccurate or untrue as of
the date of Closing.
12.06 Regulatory Approvals. The Purchaser and the Company shall have
obtained, at their own expense, from all necessary governmental and regulatory
authorities, all necessary consents to and authorizations and approvals of this
Agreement and the transactions contemplated by this Agreement and the related
transfers of ownership and control of all licenses, permits or other
governmental authorizations necessary to carry on all aspects of the business of
the Branches.
12.07 Due Diligence Review. Purchaser shall have completed and be
satisfied with the scope and results of a review of the business operations,
assets, properties, liabilities, and other matters regarding Seller and the
Branches, and shall have reached agreements with Seller satisfactory to
Purchaser in all respects regarding any matter or matters relating to such
investigation, including without limitation, agreements with respect to the
Loans being purchased and the purchase price for Loans pursuant to Section 2.01.
12.08 Title Insurance. Purchaser shall have obtained at its own cost
and expense such owner's and leasehold policies of title insurance as it shall
desire, free of any exception or other qualification other than standard
exceptions and exclusions.
ARTICLE XIII
CONDITIONS PRECEDENT TO THE SELLER'S OBLIGATIONS
The obligations of the Seller to close under this Agreement shall be
subject to the following conditions (all or any of which may be waived, in whole
or in part, by the Seller to the extent permitted by law):
13.01 Representations and Warranties True. The representations and
warranties made by the Purchaser and the Company in this Agreement shall have
been true and correct when made and shall be true and correct on and as of the
date of Closing with the same force and effect as though such representations
and warranties had been made on and as of such date.
172
13.02 Obligations Performed. The Purchaser and the Company shall
have performed all covenants and obligations and complied with all conditions
required by this Agreement to be performed or complied with by the Company on or
before the date of Closing.
13.03 Certificate of Compliance. The Purchaser shall have executed
and delivered to the Seller a certificate in substantially the same form and
substance as the one attached hereto as Exhibit 13.03, dated as of the date of
Closing.
13.04 No Adverse Litigation. No action, suit or proceeding shall
have been instituted or threatened against the Seller, or the Purchaser or the
Company by or before any court or governmental agency to restrain or prohibit,
or to obtain damages in respect of, this Agreement or the consummation of the
transactions contemplated hereby which in the opinion of Seller makes it
inadvisable to proceed to Closing under this Agreement.
13.05 Opinion of Counsel. The Seller shall have received an opinion
of counsel for the Purchaser and the Company, dated the date of Closing, in
substantially the form attached hereto as Exhibit 13.05 to the effect that this
Agreement and the other documents contemplated by this Agreement have been duly
authorized, executed and delivered by Purchaser and that without making an
investigation for such purpose, nothing has come to such counsel's attention
which causes him to believe that any representation or warranty of Purchaser
made in this Agreement is untrue as of the date of Closing.
ARTICLE XIV
CLOSING
14.01 Time and Place. The hour, date and location of Closing under
this Agreement shall be at a location mutually acceptable to Purchaser and
Seller as soon as practicable after the Purchaser's receipt of all regulatory
and governmental approvals and the expiration of any required waiting period.
ARTICLE XV
TERMINATION
15.01 Methods of Termination. This Agreement may be terminated as
follows:
(a) at any time by the mutual written consent of the
Purchaser and the Seller;
(b) by the Purchaser in writing at any time that it
determines in good faith that the conditions set forth in Article XII of this
Agreement will not be met by February 28, 2001;
(c) by the Seller in writing at any time that it
determines in good faith that the conditions set forth in Article XIII of this
Agreement will not be met by February 28, 2001;
(d) by the Seller in writing at any time after any of the
regulatory authorities has denied any application of the Purchaser for approval
of the transactions contemplated herein;
173
(e) by the Purchaser in writing on or before January 21,
2002 if as a result of its due diligence review it discovers a fact or
circumstance that makes it inadvisable in Purchaser's sole discretion for
Purchaser to proceed with the transaction contemplated hereby;
(f) by the Purchaser or the Seller if the Closing shall
not have occurred on or prior to February 28, 2002, unless the failure of such
occurrence is due to the failure of the party seeking termination failing to
perform or observe any of its agreements and conditions set forth herein.
15.02 Procedure Upon Termination. In the event of termination
pursuant to Section 15.01 hereof, written notice thereof shall forthwith be
given to the other party in accordance with Section 17.08 of this Agreement, and
this Agreement shall terminate immediately 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 and information of the other party relating to this transaction,
whether obtained before or after the execution hereof, to the party furnishing
the same;
(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 or hereafter 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 or delivered by such party to third persons;
and
(c) the Purchaser shall immediately pay the Seller 50% of
the total out of pocket costs expended for notices to customers and joint
mailings as provided in section 10.04, as approved at such time.
ARTICLE XVI
MUTUAL COVENANTS AND AGREEMENTS
16.01 Best Efforts; Cooperation. Subject to the terms and conditions
hereof, each party hereto agrees promptly to take, or cause to be taken, all
actions and to do or cause to be done, all things necessary, proper or advisable
under applicable laws and regulations, or otherwise, including, without
limitation, attempting to obtain all necessary consents, waivers and regulatory
approvals, to consummate and make effective at the earliest practicable time,
the transactions contemplated by this Agreement. The officers and employees of
each party shall fully cooperate with officers and employees, accountants,
counsel and other representatives of the other in all matters contemplated by
this Agreement.
ARTICLE XVII
MISCELLANEOUS
174
17.01 Modifications and Waivers. This Agreement may not be modified
except by an instrument in writing duly executed by the parties. Any waiver of
any term of this Agreement must be in writing.
17.02 No Brokers or Finders. The Purchaser and the Seller each
represent and warrant to each other that no broker or finder has been employed
by or has acted for it in connection with this Agreement or the transactions
contemplated hereby, and each party agrees to indemnify the other against all
losses, costs, damages or expenses arising out of claims for fees or commissions
of brokers or finders alleged to have been employed or engaged by such party.
17.03 Survival of Representations and Warranties. All
representations and warranties contained herein and in any written agreement or
instrument delivered or executed in connection herewith are true at and as of
the times provided herein, and all of which will survive the execution and
delivery of this Agreement, any examination on behalf of any party hereto, and
the consummation of all transactions contemplated herein. Notwithstanding the
foregoing sentence, representations and warranties made with respect to title to
any real estate to be conveyed hereunder, shall survive the Closing only to the
extent provided in the documents of conveyance relating thereto.
17.04 Binding Effect. All terms of this Agreement shall be binding
upon, and inure to the benefit of, the parties hereto and their respective
successors and assigns; provided, however, that the rights of the Purchaser in
and to this Agreement and the transactions contemplated hereby may not be
assigned by the Purchaser except with the Seller's prior written consent.
17.05 Counterparts. This Agreement is being executed simultaneously
in two or more identical counterparts, each of which shall be deemed to be an
original, but all of which together shall constitute one and the same
instrument.
17.06 Expenses. Each party shall bear its own expenses incurred in
connection with this Agreement and all transactions contemplated herein.
17.07 Notices and Primary Contact Personnel. All notices, requests,
demands and other communications hereunder shall be in writing and shall be
deemed to have been duly given if delivered by hand, overnight courier or if
mailed, postage prepaid, by United States first class mail, to the other party
at its address shown on Exhibit 17.07 hereto. The parties hereto, as a matter of
convenience, are designating primary contact personnel on Exhibit 17.07, and
each party may contact such persons in day-to-day, routine dealings with the
other party leading up to and following the Closing.
17.08 Publicity. The Purchaser and the Seller shall cooperate with
each other as to the content and timing of public and customer filings,
publicity, press releases and announcements concerning this Agreement, and all
transactions contemplated hereby, and prior to releasing any such information
each party will send such material to the other party for its review and
consent, which consent may not be withheld unreasonably.
175
17.09 Time of the Essence. The parties hereto acknowledge that time
is of the essence with respect to the performance of this Agreement and the
consummation of the transactions contemplated herein in accordance with the
terms hereof.
17.10 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Tennessee applicable to
contracts made and to be performed wholly within such state.
17.11 Cover, Index and Headings, Etc. The cover, index and headings
contained in this Agreement are for convenience of reference only and shall not
affect the meaning or interpretation hereof. The use of the singular in this
Agreement shall be deemed to be or include the plural (and vice versa), whenever
appropriate.
17.12 Severability. If any provision of this Agreement is determined
by a court of competent jurisdiction to be invalid or unenforceable, the balance
of this Agreement shall remain in full force and effect except to the extent
otherwise agreed by the parties in writing.
17.13 Entire Agreement. This Agreement and the Information Statement
including any exhibits hereto or thereto, represent the entire agreement of the
parties relating to the subject matter hereof. All prior negotiations and
understandings between the parties are merged into this Agreement and there are
no understandings or agreements other than those incorporated herein.
17.14 Preparation of Exhibits. In order to permit Seller additional
time to complete the exhibits and schedules called for by this Agreement,
Purchaser has agreed to permit the delivery of the exhibits and schedules
following the date hereof, but in no event later than January 4, 2002. The
representations and warranties made by Seller in this Agreement shall not be
deemed to be modified by any exhibit or schedule until such exhibit or schedule
is accepted in writing by Purchaser in its sole discretion. In the event that
the exhibits or schedules submitted by Seller shall contain any matter or
reflect any circumstance that is unsatisfactory in any respect to Purchaser in
its sole discretion, then Purchaser may terminate this Agreement without further
obligation or liability, or may request Seller to negotiate in good faith
regarding an adjustment in Purchaser's favor to the terms and conditions of this
Agreement.
176
IN WITNESS WHEREOF, the Company, the Purchaser, CBI and the Seller have
caused this Agreement to be executed by their respective duly authorized
officers and their respective corporate seals to be affixed hereto as of the day
and year first above written.
FIRST FARMERS AND MERCHANTS CORPORATION
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------------
ATTEST: Its Senior Executive Vice President
-------------------------------------
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
------------------------------------
Its Treasurer
---------------------------------
[CORPORATE SEAL]
FIRST FARMERS AND MERCHANTS NATIONAL
BANK OF COLUMBIA
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------------
ATTEST: Its Senior Executive Vice President
-------------------------------------
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
------------------------------------
Its Senior Vice President and Chief
Financial Officer
---------------------------------
[CORPORATE SEAL]
COMMUNITY BANK
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
--------------------------------------
ATTEST: Its Chairman and Chief Executive Officer
-------------------------------------
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
------------------------------------
Its General Counsel
---------------------------------
[CORPORATE SEAL]
COMMUNITY BANCSHARES, INC.
By /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
--------------------------------------
ATTEST: Its Chairman, President and Chief
Executive Officer
-------------------------------------
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Its Secretary
---------------------------------
[CORPORATE SEAL]
▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ )
)
MAURY COUNTY )
I, ▇▇▇▇ ▇▇▇▇▇▇▇, a Notary Public in and for said county in said state hereby
certify that ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ as Senior Executive Vice President and ▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇ as Treasurer of First Farmers and Merchants Corporation, whose
names are signed to the foregoing agreement, and who are known to me,
acknowledged before me on this day that being informed of the contents of this
agreement, they, as such officers and with full authority, executed the same
voluntarily for and as the act of said corporation.
Given under my hand and seal this 21st day of December, 2001.
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
Notary Public
My Commission expires: 05/24/05
[NOTARIAL SEAL]
STATE OF TENNESSEE )
)
MAURY COUNTY )
I, ▇▇▇▇ ▇▇▇▇▇▇▇, a Notary Public in and for said county in said state hereby
certify that ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ as Senior Executive Vice President and ▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇ as Senior Vice President and Chief Financial Officer of First
Farmers and Merchants National Bank of Columbia, whose names are signed to the
foregoing agreement, and who are known to me, acknowledged before me on this day
that being informed of the contents of this agreement, they, as such officers
and with full authority, executed the same voluntarily for and as the act of
said corporation.
Given under my hand and seal this 21st day of December, 2001.
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
Notary Public
My Commission expires: 05/24/05
[NOTARIAL SEAL]
▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ )
)
▇▇▇▇▇▇ COUNTY )
I, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, a Notary Public in and for said county in said state hereby
certify that ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇. as Chairman and Chief Executive Officer
and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ as General Counsel of Community Bank, whose names are
signed to the foregoing agreement, and who are known to me, acknowledged before
me on this day that being informed of the contents of this agreement, they, as
such officers and with full authority, executed the same voluntarily for and as
the act of said corporation.
Given under my hand and seal this 21st day of December, 2001.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Notary Public
My Commission expires: November 7, 2002
[NOTARIAL SEAL]
STATE OF ALABAMA )
)
▇▇▇▇▇▇ COUNTY )
I, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, a Notary Public in and for said county in said state hereby
certify that ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇. as Chairman, President and Chief Executive
Officer and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ as Secretary of Community Banncshares, Inc.,
whose names are signed to the foregoing agreement, and who are known to me,
acknowledged before me on this day that being informed of the contents of this
agreement, they, as such officers and with full authority, executed the same
voluntarily for and as the act of said corporation.
Given under my hand and seal this 21st day of December, 2001.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Notary Public
My Commission expires: November 7, 2002
[NOTARIAL SEAL]
179