EXHIBIT 10.30
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ACQUISITION AGREEMENT BETWEEN
PEOPLES BANK OF NORTH ALABAMA AND
COMMUNITY BANK
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ACQUISITION AGREEMENT
This Acquisition Agreement (the "Agreement") is made and entered into
as of the 25th day of February, 2002, by and between Peoples Bank of North
Alabama, an Alabama banking corporation (the "Purchaser"), and Community Bank,
an Alabama banking corporation (the "Seller").
W I T N E S S E T H:
The Seller has offered for sale its branch offices located at (i) 000
X. Xxxx Xxxxxx, Xxxx, Xxxxxxx, (ii) 000 X. Xxxxxxxx Xxxxxxxx Xxxxxxx, Xxxx,
Xxxxxxx, (iii) 000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx, (iv) 000 X. Xxxxx
Xxxxxx, Xxxxxxxxxxx, Xxxxxxx, (v) 00000 X. X. Xxxxxxx 000, Xxxxxxxxxxxx, Xxxxxxx
and (vi) 000 Xxxxx Xxxx Xxxxxxxxx, Xxxx, Xxxxxxx (the "Branches") together with
substantially all of the deposit and Loan business of such Branches.
The Purchaser has received summary 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) "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
Settlement Date.
(b) "Closing" means the closing of the purchase of the
assets and the assumption of the liabilities of the Branches as provided herein.
(c) "Core Deposits" means all deposits maintained at the
Branches, exclusive of (i) public funds time deposits including deposits of the
State of Alabama and its political subdivisions, authorities and agencies,
including time deposit open accounts or TDOA, (ii) deposits represented by
certificates of deposit representing at Closing a liability of $100,000 or more
and (iii) any accounts designated by mutual agreement of Seller and Purchaser on
Exhibit 1.01(c) attached hereto as not expected to transfer to Purchaser ("NETT
Deposits").
(d) "Lien" means any conditional sale agreement, default
of title, easement, encroachment, encumbrance, hypothecation, infringement,
lien, mortgage, pledge, reservation,
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restriction, security interest, title retention or other security arrangement,
or any adverse right or interest, charge, or claim of any nature whatsoever of,
on, or with respect to any property or property interest.
(e) "Litigation" means any action, arbitration, cause of
action, lawsuit, claim, complaint, criminal prosecution, governmental or other
examination or investigation, audit (other than regular audits of financial
statements by outside auditors), compliance review, inspection, hearing,
administrative or other proceeding relating to or affecting a party, its
business, its records, its policies, its practices, its compliance with
applicable law, its actions, its assets (including contracts and agreements
related to it), or the transactions contemplated by this Agreement.
(f) "Loan" means each loan agreement, note or borrowing
arrangement (including all collateral relating thereto) to which Seller is a
party and which are properly booked on the Branches' books and records at
Closing, including, without limitation, all overdraft lines of credit.
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, all of Seller's right, title and interest in the following assets,
properties and rights (the "Purchased Assets") free and clear of all Liens:
(a) all Loans properly booked on the Branches' books and
records at Closing at their respective then outstanding principal amounts,
together with accrued interest thereon, including the following:
(1) Loans in which the collateral securing same
has been repossessed or in which collection efforts have been
instituted or, claim and delivery or foreclosure proceedings
have been commenced);
(2) Loans 30 days or more past due, including
nonaccrual status;
(3) Loans upon which insurance has been
force-placed;
(4) Loans in connection with which the borrower
has filed a petition for relief or is the subject of a
proceeding under the United States Bankruptcy Code prior to
the Closing Date;
(5) Loans that do not meet the credit standards
of the Purchaser;
(6) Loans otherwise identified by Purchaser as
uncollectible; and
(7) Loans classified or classifiable as special,
uncertain, substantial or loss.
All Loans that fit the criteria of (1) - (7) above shall hereinafter be referred
to as "Discounted Loans" and shall be purchased by the Purchaser at mutually
agreed amounts to be shown as Exhibit
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2.01(a)(1), which amounts shall appropriately reflect the risks, collectibility
or realization and costs of collection and realization. All other Loans to be
purchased shall be purchased at the value thereof shown on Seller's books (the
"Regular Loans"). Purchaser shall not be required to take any Loans which are to
any employee of the Seller (other than to employees of the Branches) nor any
Loans to any affiliates of Seller or its related entities.
(b) all overdraft lines of credit related to deposit
accounts of Seller or overdrawn deposit accounts of Seller that are 60 or more
days past due or otherwise charged off by Seller ("Overdue Lines of Credit");
(c) all of the Seller's rights and title to the real
property and improvements set forth on Exhibit 8.03, whether owned or leased by
the Seller, 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, to the extent assignable ("Real Property");
(d) all cash on hand at the Branches at Closing;
(e) all 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 ("Furniture, Fixtures and
Equipment");
(f) all rights to the extent assignable in, to and under
any vendor single interest insurance or other insurance on Loans or collateral
transferred to the Purchaser with the Loans, and any payment received by Seller
before the Closing prorated based on the term of the Loan, and after Closing
with respect to such insurance;
(g) all unearned credit insurance or debt cancellation
premiums under the control of the Seller with respect to Loans sold to the
Purchaser hereunder;
(h) all agreements, contracts, instruments, files
(written or electronic), credit analysis and reports, ledgers, or other
documents relating to any of the foregoing; and
(i) all real property categorized on the books of the
Branches as "other real estate" and set forth on Exhibit 2.01(i) hereto (the
"Other Real Estate") at the mutually agreed upon prices set forth opposite each
item of Other Real Estate on Exhibit 2.01(i).
2.02 Value of Equipment and Additions. The Seller represents and
warrants that the net book value of the Real Property and the Furniture,
Fixtures and Equipment of the Branches on Seller's books (excluding the items
listed in Section 2.03 of this Agreement) is as set forth in Exhibits 8.03 and
8.04 as of the date of this Agreement and which exhibits shall be updated to
Closing Date.
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2.03 Assets Not Sold. The following are expressly excluded from the
Purchased Assets:
(a) the Seller's signs and logos, except that all sign
poles and time and temperature signs will remain and become Purchaser's
property;
(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
not be removed;
(c) any Loans to any Seller Affiliate (as defined in
Section 7.01), except for Loans made in the ordinary course of business on
substantially the same terms, including interest rates and collateral, as those
prevailing at the time for comparable transactions with other persons, and did
not involve more than the normal risk of collectibility or other unfavorable
features to persons employed and performing services at the Branches; and
(d) any Loans or participations or other interests in any
Loans originated and transferred from another financial institution to Seller as
part of a loan sale, sale of participations or interests, including syndicated
creditors or otherwise.
2.04 Purchase Price. As full consideration for the purchase of the
Branches and the Purchased Assets, the Purchaser shall pay Seller a purchase
price (the "Purchase Price") equal to the sum of the following:
(a) fully depreciated net book value for the owned Real
Property and owned Furniture, Fixtures and Equipment;
(b) a premium for the Core Deposits equal to 8.00% of the
Available Core Deposit Base;
(c) the book value for the Regular Loans as set forth on
Exhibit 2.01(a)(2);
(d) with respect to all Discounted Loans, an amount to be
mutually agreed upon by the Seller and Purchaser and set forth on Exhibit
2.01(a)(1);
(e) the aggregate sum of one dollar ($1.00) for all of
the Overdue Lines of Credit;
(f) the face amount of the cash on hand at the Branches
at Closing;
(g) with respect to the Other Real Estate, the aggregate
of the purchase prices mutually agreed upon by Seller and Purchaser and set
forth on Exhibit 2.01(i) for each item of Other Real Estate; and
(h) with respect to all other Purchased Assets listed in
Section 2.01, the aggregate sum of one dollar ($1.00).
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2.05 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 all of Seller's
right, title and interest as agreed hereunder and satisfactory in form and
substance to counsel for the Seller and the Purchaser, including, without
limitation, the making of all filings and the recordation of all mortgages and
other Loans in the respective county courthouses where the property covered by
such mortgages and other Loans relate. 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,
documents and instruments or information relating to or evidencing all Loans
purchased, to the extent these exist, and otherwise will deliver the best copies
available.
2.06 Removal of Assets Not Sold. As soon as reasonably possible
following the Closing, 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 (other
than all sign poles and time and temperature signs) removed from the Branches at
Closing; provided further, that Seller shall not remove any property items not
bearing Seller's proprietary marks and which are necessary or useful in
operating the Branches. 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.
2.07 Title to Real Property and Leases. The Seller shall provide
the Purchaser with originals (or copies if originals are not available) 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.
2.08 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 and all such items are listed on
Exhibit 2.08 hereto. 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.
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.
2.09 Payments and Information Received After Closing. The Seller
agrees to forward promptly to the Purchaser:
(a) any payments (properly endorsed as necessary) which
are received by the Seller on or after the Closing Date that relate in any way
to the Loans being purchased by the
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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;
(b) any notices or other correspondence received on or
after the Closing Date that relate in any way to the Loans purchased or to other
Purchased Assets; and
(c) a listing of all customer deposit accounts at the
Branches previously closed by customers or charged-off by Seller since January
1, 2001, including the names, addresses and phone numbers for such customers.
ARTICLE III
ASSUMPTION OF LIABILITIES
3.01 Liabilities Assumed. At the Closing, the Seller shall transfer
to Purchaser and 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 the Assumed 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, letters of credit, consignments of U.S. Savings bonds, drafts
and expense checks issued by the Seller prior to Closing;
(b) all liabilities and obligations of any nature arising
from or connected with the Branches and their operations, including relating to
circumstances or events arising or existing prior to the Closing, including, but
not limited to, liabilities or obligations with respect to any Litigation or
governmental proceedings arising, commencing or made known to Seller prior to
Closing and related to the Branches, or which thereafter arise with respect to
matters occurring prior to Closing;
(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; and
(d) all liabilities and obligations of Seller under any
debt cancellations or credit insurance contracts or similar arrangements.
3.03 Documentation of Assumption. At Closing the Purchaser shall
deliver to the Seller an undertaking, reasonably 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.
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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 provided by Seller to Purchaser 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 III, 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 in accordance with applicable law and
customary banking practices 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 received by it after the Closing Date for credit to Transferred
Accounts, however, the Seller shall be under no obligation after 60 days from
the Closing Date 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 or Loans or
assets purchased 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. If Seller does make any such payment to a deposit customer
relating to a Transferred Account, Purchaser shall promptly reimburse Seller for
the amount thereof; provided, there are sufficient available collected funds in
such Transferred Account to fully pay such reimbursement.
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 and reflected in the Settlement Statement, but which are returned to the
Seller after the Closing Date.
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3.11 Final Statements. Seller will render a final statement to each
depositor of a Transferred Account assumed under this Agreement as to
transactions occurring through the Closing Date. Seller will be entitled to
impose normal fees and service charges on a per item basis through Closing, but
Seller will not impose periodic fees or blanket charges in connection with such
final statements.
3.12 Automated Clearing House. The Purchaser, at its expense, will
timely notify all Automated Clearing House ("ACH") originators of the transfers
and assumptions to be made pursuant to the Agreement as of the Closing Date, and
the Seller will cooperate with the Purchaser and provide, at Seller's expense,
all tapes and data reasonably requested by Purchaser for such purpose. For a
period of 60 days beginning on the Effective Time, Seller will honor all ACH
items related to accounts assumed under this Agreement which are mistakenly
routed or presented to Seller. Seller will make no charge to Purchaser for
honoring such items, and will electronically transmit such ACH data to
Purchaser. If Purchaser cannot receive an electronic transmission, Seller will
make available to Purchaser at Seller's operations center receiving items from
the ACH tapes containing such ACH data. Items mistakenly routed or presented
after the 60-day period will be returned to the presenting party.
3.13 Debit Card Transactions. After the Closing, Purchaser agrees
to use its reasonable efforts to collect from Purchaser's customers amounts
equal to any debit card connected with a Transferred Account and any Visa or
MasterCard chargebacks under the MasterCard and Visa Merchant Agreements between
Seller and its customers or amounts equal to any deposit items on Transferred
Accounts and that are returned to Seller after the Closing which were honored by
Seller prior to the Closing and remit such amounts so collected to Seller.
Purchaser agrees to immediately remit to Seller any funds held in the customer's
related Transferred Account when the Purchaser receives such notice from the
Seller, up to the amount of the charged back or returned item that had been
previously credited by Seller, if such funds are available in such customer
account at the time of notification by Seller to Purchaser of the charged back
or returned item. Notwithstanding the foregoing, Purchaser shall have no duty to
remit funds for any item or charge that has been improperly returned or charged
to Seller.
ARTICLE IV
ASSUMPTION OF RISKS
4.01 Insurance Policies. Effective immediately following the
Closing Date, 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 following the Closing Date,
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.
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4.03 Security of Persons and Property Immediately following the
Closing Date, the Seller will discontinue providing any security for persons and
property provided by the Seller prior to Closing.
ARTICLE V
SETTLEMENT
5.01 Settlement. The amount of cash to be received or paid by
Purchaser at Closing shall be calculated in accordance with the formula set
forth in 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.
At least five (5) days prior to the Closing Date (the "Settlement
Date"), 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. As soon as
reasonably practicable, but within five (5) business days following the Closing
Date, the Purchaser shall, based upon the general ledger and other books and
records relating to the Branches, 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 agreed
upon by the Purchaser and Seller and shall be adjusted and paid, by the Seller
or the Purchaser, as the case may be, as provided in such Exhibit 5.02.
5.03 Casualty and Other Losses Prior to Closing. If the buildings
in which the Branches are located or any other Real Property, improvements or
Furniture, Fixtures and Equipment with respect to the Branches or which are
included in or are securing any Purchased Assets 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, Seller shall promptly
assign and pay over to Purchaser any insurance proceeds with respect to such
assets.
5.04 Pro Rata Adjustments of Expenses. All property taxes, rents
and utility payments, salaries, and all other similar expenses and taxes
itemized in a writing delivered by the Seller to Purchaser at least five (5)
business days prior to the Closing Date 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 Closing Date.
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ARTICLE VI
EMPLOYEES
6.01 Transfer of Certain Employees. Seller will use its reasonable
efforts to maintain the employees as employees of Seller at the Branches until
the Closing Date. Any employee whose employment shall be terminated for any
reason prior to the Closing Date or who shall elect not to be an employee of
Purchaser shall be dealt with by Seller in its sole and absolute discretion, and
Purchaser shall have no liability whatsoever therefor. 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 and
upon prior notice to Purchaser.
6.02 Re-Employment Restriction. The Seller agrees that for a period
of two years 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 pension, profit sharing, insurance, vacation, sick leave
and other benefits that are substantially similar to 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 eligibility and vesting (but not
benefit accrual) under Purchaser's qualified benefit plans.
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 and including the Closing Date, and all
benefits under Seller's 401(k), employee stock ownership plan, and other
employee benefit plans or options shall be paid as soon as reasonably
practicable in accordance with the applicable plan to the extent that such
benefits become vested at the Closing Date as a result of the transactions
contemplated hereby.
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. To the extent required by applicable law, the Seller reserves the
right to obtain the employee's prior consent to release information which the
Seller reasonably believes (upon advice of counsel) cannot 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, and Purchaser
shall have no obligation to hire the related employee.
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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 and representatives, to regulatory and self-regulatory
authorities, or as required by law or pursuant to legal process. 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 reveal any proprietary
information, trade secrets or marketing or strategic plans, and if such
information is the subject of a confidentiality agreement between the Seller and
a third party, any disclosure will be subject also to the provisions of such
confidentiality agreement, which shall be provided to Purchaser. The Seller
shall provide the Purchaser, on a confidential basis, the names and addresses of
all directors, officers, affiliates (as defined in SEC Rule 405) and their
relatives and the business interests related to each of the foregoing
(individually and collectively, "Seller Affiliates").
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.
Purchaser shall permit the Seller or its representatives, at Seller's expense,
to inspect, make extracts from or copies of, any files, books of account or
records as may be necessary for Seller to satisfy any auditing or regulatory
requirements placed upon Seller or as may be required by Seller in connection
with any Litigation. 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, to sell,
transfer, assign and deliver the Purchased Assets referred to in Article II, and
to carry on its business as currently conducted. 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. Except as disclosed on Exhibit 8.02, no further
corporate
229
authorization or applications or notices to any governmental or regulatory
authority, agency or entity or any consents, waivers or approvals from any such
governmental authority is necessary for Seller to execute and deliver this
Agreement or to consummate the transactions contemplated hereunder or perform
its obligations hereunder.
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 Real 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 Lien, 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 Property and Furniture,
Fixtures and Equipment 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. All
Real Property and Furniture, Fixtures and Equipment held under leases or
subleases by the Seller, are held under valid contracts enforceable in
accordance with their respective terms, and each such contract is in full force
and effect. All improvements on the Real Property leased to, or used by, the
Seller conform to all applicable state and local laws, regulations, zoning and
building ordinances and health and safety ordinances, and the Real Property is
zoned for the various purposes for which the real estate and improvements
thereon are presently being used. To the Knowledge of the Seller, no
condemnation proceedings or proceedings for the taking of any Real Property by
eminent domain by any Governmental Authority are pending or threatened. Seller
has not entered into any agreement regarding the Real Property or the Furniture,
Fixtures and Equipment, and neither Seller nor the Real Property is subject to
any claim, demand, suit, Lien 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 materially limit or restrict
Purchaser's right or ability to enter into this Agreement and consummate the
sale and purchase contemplated hereby.
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 be usable in the
ordinary course of business consistent with the Seller's past practices.""
8.05 Loans. With respect to each Loan within the Purchased Assets:
the Loan complies in all material respects with all applicable laws and banking
regulations and is a valid loan enforceable in accordance with its terms; the
Seller is the sole owner thereof, no participation or other interest therein
having been sold or transferred; the Loan is not pledged or encumbered except as
set forth on
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Exhibit 8.05 and all such Liens shall have been satisfied and released prior to
Closing; the principal balance of the Loan as shown on Exhibit 8.05 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
originally executed documents, and 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 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. None of the Loans is to or for the benefit
of a Seller Affiliate.
8.06 No Violations. The Branches have been operated in all material
respects in accordance with all applicable laws, rules and regulations,
including the provisions of the Internal Revenue Code and related regulations
pertaining to back-up withholding and tax reporting. Subject to receipt of all
necessary corporate, regulatory and other third party approvals or consents, the
execution, delivery and performance of this Agreement and the transactions
contemplated herein do not and will not violate or conflict with the Seller's
Articles of Incorporation, Bylaws or other governing documents or 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 material condition or provision of, or
constitute a material default under, any material contract, right, lease,
pledge, Lien, instrument, 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, or create or result in any Lien
upon the Purchased Assets or Assumed Liabilities. 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, Assumed Liability or other obligation or
Purchased Asset which the Purchaser is assuming or purchasing 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 seeking to enjoin, restrain or challenging the validity,
enforceability or propriety of this Agreement or the transactions contemplated
by this Agreement. There are no employee disputes or labor relations problems
with respect to any employees of the Branches.
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(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 or liabilities of Seller, including the Purchased Assets
and Assumed Liabilities.
8.09. Environmental Matters. Except as set forth in Exhibit 8.09:
(a) Seller, and to the knowledge of Seller, each of
Seller's Other Real Estate, Real Property or 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 protection of human health or the environment or
the discharge, emission, release or threatened release of, or exposure to,
Hazardous Materials (as hereinafter defined) in the environment or workplace or
otherwise relating to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport, or handling of any Hazardous Material
("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 Other Real Estate, Real Property or
Participation Facility or any Loan Property, has been or, with respect to
threatened proceedings, may be, named as a 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) During the period of (x) Seller's ownership or
operation of any of their respective current or former properties including the
Other Real Estate, Real Property or, (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, Participation Facility or Loan 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 (i) any hazardous substance, hazardous
material, hazardous waste, regulated substance, or toxic substance (as those
terms are defined by any applicable Environmental Laws) and (ii) any chemicals,
pollutants, contaminants, petroleum, petroleum products, or oil (and
specifically shall include asbestos requiring abatement, removal, or
encapsulation pursuant to the requirements of any governmental authorities and
any polychlorinated biphenyls)., (y) "Loan Property" means any property in which
Seller holds a security interest which security interest or other Lien 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.
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8.10 ERISA Matters. The Seller is in compliance in all material
respects with the provisions of ERISA. No steps have been taken by the Seller to
terminate any employee benefit plan (as defined in Section 3(3) of ERISA) the
assets of which are not sufficient to satisfy all of its benefit liabilities (as
determined under Title IV of ERISA), no contribution failure has occurred with
respect to any employee benefit plan sufficient to give rise to a lien under
Section 302(f) of ERISA, and each of Seller's employee benefit plans has been
administered in all material respects in compliance with its terms and
applicable provision of ERISA and the Internal Revenue Code of 1986, as amended
and all regulations thereunder (the "Code"). To Seller's Knowledge, no
prohibited transaction (as defined in Section 406 of ERISA or Section 4975 of
the Code) has occurred under any employee benefit plan of Seller. "ERISA" means
the Retirement Income Security Act of 1974, as amended and all related
regulations of the Department of the Treasury and the Department of Labor
thereunder.
8.11 Employees; Labor Matters.
(a) No employee of the Branches is bound by any agreement
that purports to limit his or her ability to engage in or continue or perform
any conduct, activity, duties or practice relating to the business conducted by
the Branch or by Seller;
(b) Seller has operated the Branches in compliance in all
material respects with all applicable laws and regulations relating to the
employment of labor, and has made all withholdings and other payments with
respect to such employment and employment taxes and charges; and
(c) There is no collective bargaining agreement to which
Seller is a party and no collective bargaining agreement is currently being
negotiated or proposed.
8.12 Books and Records. The books of account and other records of
Seller, to the extent they relate to the Branches, the Purchased Assets and the
Assumed Liabilities, all of which have been made available to Purchaser, are
complete and correct in all material respects and represent actual, bona fide
transactions and have been maintained in accordance with customary business
practices and generally accepted accounting practices consistently applied.
8.13 Consents of Third Parties. Seller shall use all commercially
reasonable efforts to obtain and preserve any consents or approvals to third
parties, whether of regulatory or governmental authorities or third parties or
persons necessary, appropriate or expedient to the consummation of the
transactions contemplated by this Agreement, including, but not limited to, the
consents of lenders to the Seller or to Community Bancshares, Inc. or any
subsidiary of Community Bancshares, Inc. and shall cooperate with Purchaser in
seeking and obtaining any consents or approvals it may require from any
governmental authorities or third parties in connection with this Agreement and
the transactions contemplated hereby.
8.14 USA Patriot Act Compliance. The Seller is in compliance in all
material respects with the provisions of the Uniting and Strengthening America
by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act
of 2001 (the "USA Patriot Act") and all regulations promulgated thereunder
including, but not limited, to those provisions of the USA Patriot Act that
address money-laundering, know-your customer, account maintenance and customer
verification.
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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 banking corporation
duly organized, validly existing and in good standing under the laws of the
State of Alabama.
9.02 Corporate Authority. Subject to regulatory approval, 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 or conflict with
the Seller's Articles of Incorporation, Bylaws or other governing documents or
any provision of law to which the Purchaser is subject and do not and will not
conflict with or result in the violation or breach of any material condition or
provision of, or constitute a material default under, any material contract,
right, lease, pledge, lien, security interest, instrument, indenture, mortgage,
charge, encumbrance, agreement, order, writ, injunction, decree or judgment to
which the Purchaser is a party or which is binding on the Purchaser or to which
any of the property or assets of Purchaser is subject. Except as set forth in
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
within 5 business days of execution of this Agreement and in good faith
diligently 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 all commercially
reasonable 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.
9.07 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
234
whatsoever with regard to the Purchaser, any liability or obligation being
assumed by the Purchaser or as to any other matter or transaction 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 Closing Date, it will:
(a) 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) carry on the business of the Branches substantially
in the same manner as conducted on the date thereof (including interest rates
and terms on Loans and deposits), 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;
(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 an amount reasonably
adequate to cover the replacement costs of the Branches and the Purchased Assets
and continue all credit insurance and debt cancellation protection for the
benefit of Purchaser with respect to the Loans;
(d) maintain the Real Property, Furniture, Fixtures and
Equipment, and other Purchased Assets in their respective current conditions;
(e) 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
(f) not take any action which would cause any
representation or warranty made herein to be untrue at the Closing Date.
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
235
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, including, without limitation, the making of all
filings and recordations at all applicable county courthouses or other locations
as may be necessary to transfer and assign the Loans secured by mortgages or
similar Liens.
10.03 Non-Solicitation of Business. The Seller will not, for a
period of two (2) years after the Closing, (i) own or operate any commercial
bank branch within Xxxxxxxx County, Alabama, 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
generally to persons holding accounts with the Seller outside the Branches or
having other relations with the Seller's other offices without limiting such
materials to any former Branch customers, and newspaper, radio, television,
billboards and other advertisements of a general nature. This subsection shall
not apply to those Assumed Liabilities 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.
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 after the
Closing Date. 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 after the Closing Date out of any claim by
an owner of a Transferred Account that the Seller is the "Payor Bank" with
respect to such items.
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.
236
10.08 Indemnity. Seller agrees to indemnify and hold harmless
Purchaser and its officers, directors, employees, affiliates, representatives,
successors and assigns (each a "Purchaser Indemnitee") against, from and in
respect of:
(i) Any damage, expense (including reasonable attorney
fees and disbursements) 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, including all liabilities under the Seller's credit insurance
policies and debt collection agreements.
(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, including any Litigation
arising out of the Discounted Loans. 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.
10.09 Indemnity Claims. If any Purchaser Indemnitee desires to make
a claim under Section 10.08 hereof which does not involve a claim by any person
other than the Purchaser Indemnitee, then such Purchaser Indemnitee shall make
such claim by promptly delivering written notice to the Seller. If any Purchaser
Indemnitee desires to make a claim against Seller under Section 10.08 hereof
which involves a claim by a person other than the Purchaser Indemnitee, then the
Purchaser Indemnitee, upon receipt of written notice of any claim or the service
of a summons, or other initial legal process upon it in any action instituted
against it, in respect of which indemnity may be sought on account of any
indemnity agreement contained in Section 10.08 (an "Asserted Liability"), shall
promptly give notice (a "Claims Notice") of such claim or the commencement of
such action, or threat thereof, to the Seller. If a Claims Notice is not
provided promptly as required by this Section 10.09, the Purchaser Indemnitee
nonetheless shall be entitled to indemnification by the Seller to the extent
that the Seller has not established that it has been materially prejudiced by
such late receipt of the Claims Notice. The Seller shall be entitled at its own
expense to participate in the defense of such claim or action, or, if it shall
so elect, to assume the defense of such claim or action, in which case the
defense shall be conducted by counsel reasonably acceptable to the Purchaser
Indemnitee and such assumption shall constitute an acknowledgement by the Seller
of its obligations to indemnify the Purchaser Indemnitee with respect to such
Asserted Liability, and such Purchaser Indemnitee shall bear the fees and
expenses of any additional counsel retained by it; provided, however, if the
Seller shall elect not to assume the defense of such claim or action, the Seller
shall reimburse the Purchaser Indemnitee for the reasonable fees and expenses of
any counsel retained by it. Notwithstanding the above, should the Purchaser
Indemnitee reasonably conclude that there may be defenses available to it which
are different from or additional to those available to the Seller, the Seller
shall not have the right to direct the defense of such action on behalf of the
Purchaser Indemnitee and all such fees and expenses of the Purchaser Indemnitee
shall be borne by the Seller. The Claims Notice may be
237
amended on one or more occasions with respect to the amount of the Asserted
Liability at any time prior to final resolution of the obligation to indemnify
relating to the Asserted Liability. The Seller shall not, without the written
consent of the Purchaser Indemnitee, settle or compromise any such claim or
consent to the entry of any judgment which does not include any unconditional
term releasing the Indemnified Party from all liability in respect of such
Asserted Liability.
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 holding Transferred Accounts 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 promptly 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 Closing Date, 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 Date, use the name "Community Bank" or any of the Seller's
trade names, trademarks or service marks.
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 agrees to indemnify and hold harmless
Seller and its officers, directors, employees, affiliates, and assigns (each a
"Seller Indemnitee") against, from and in respect of:
238
(i) Any damage, expense or deficiency resulting from any
default, misrepresentation, breach 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.
11.06 Indemnity Claims. If any Seller Indemnitee desires to make a
claim under Section 11.05 hereof which does not involve a claim by any person
other than the Seller Indemnitee, then such Seller Indemnitee shall make such
claim by promptly delivering written notice to the Purchaser. If any Seller
Indemnitee desires to make a claim against Purchaser under Section 11.05 hereof
which involves a claim by a person other than the Seller Indemnitee, then the
Seller Indemnitee, upon receipt of written notice of any claim or the service of
a summons, or other initial legal process upon it in any action instituted
against it, in respect of which indemnity may be sought on account of any
indemnity agreement contained in Section 11.05 (an "Asserted Liability"), shall
promptly give notice (a "Claims Notice") of such claim or the commencement of
such action, or threat thereof, to the Purchaser. If a Claims Notice is not
provided promptly as required by this Section 11.06, the Seller Indemnitee
nonetheless shall be entitled to indemnification by the Purchaser to the extent
that the Purchaser has not established that it has been materially prejudiced by
such late receipt of the Claims Notice. The Purchaser shall be entitled at its
own expense to participate in the defense of such claim or action, or, if it
shall so elect, to assume the defense of such claim or action, in which case the
defense shall be conducted by counsel reasonably acceptable to the Seller
Indemnitee and such assumption shall constitute an acknowledgement by the
Purchaser of its obligations to indemnify the Seller Indemnitee with respect to
such Asserted Liability, and such Seller Indemnitee shall bear the fees and
expenses of any additional counsel retained by it; provided, however, if the
Purchaser shall elect not to assume the defense of such claim or action, the
Purchaser shall reimburse the Seller Indemnitee for the reasonable fees and
expenses of any counsel retained by it. Notwithstanding the above, should the
Seller Indemnitee reasonably conclude that there may be defenses available to it
which are different from or additional to those available to the Purchaser, the
Purchaser shall not have the right to direct the defense of such action on
behalf of the Seller Indemnitee and all such fees and expenses of the Seller
Indemnitee shall be borne by the Purchaser. The Claims Notice may be amended on
one or more occasions with respect to the amount of the Asserted Liability at
any time prior to final resolution of the obligation to indemnify relating to
the Asserted Liability. The Purchaser shall not, without the written consent of
the Seller Indemnitee, settle or compromise any such claim or consent to the
entry of any judgment which does not include any unconditional term releasing
the Indemnified Party from all liability in respect of such Asserted Liability.
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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 Closing Date 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 Closing Date.
12.03 Certificate of Compliance; Secretary's Certificate. 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
Closing Date. At the Closing, Seller shall provide Purchaser with a certificate
of the secretary of the Seller, dated as of the Closing Date, certifying the
resolutions of the Seller's Board of Directors, or its Executive Committee,
approving the sale of the assets and the assumption of the liabilities
contemplated by this Agreement, certifying and attaching the Bylaws and Charter
of the Seller, and also certifying the authenticity of the signatures of
officers of Seller.
12.04 No Adverse Litigation. No action, suit, proceeding or
Litigation 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 Closing Date, in substantially the
same form and substance as the opinion attached hereto as Exhibit 12.05.
12.06 Regulatory Approvals. The Purchaser shall have obtained, at
its 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, and the Seller shall have obtained any consents and approvals required
hereby.
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
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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.
12.09 Material Adverse Change. From the date of this Agreement until
the Closing Date, no material adverse change shall have occurred or been
threatened with respect to the Branches or the Purchased Assets or the Assumed
Liabilities. A "material adverse change" shall mean a change of ten percent
(10%) or more in the Purchased Assets or Assumed Liabilities from those existing
at January 31, 2002, and any material adverse change in the composition,
maturities, interest rates or other material terms of the Loans or Assumed
Liabilities.
12.10 Lease of Albertville Branch. Seller shall enter into a five
year lease with Purchaser for this property at a monthly rental of $14,000, and
a related agreement of sales of all this property for $2,621,544, which includes
$983,804 for the land, and the net depreciated book value of all improvements,
which shall be $1,637,740 at the end of the lease term.
12.11 Exhibits and Schedules. Seller shall deliver to Purchaser
prior to the Closing Date all schedules and exhibits required to be delivered by
Seller hereunder (including all exhibits required by Article VIII hereof) in
form and substance reasonably acceptable to Purchaser.
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 in this Agreement shall have been true and
correct when made and shall be true and correct on and as of the Closing Date
with the same force and effect as though such representations and warranties had
been made on and as of such date.
13.02 Obligations Performed. The Purchaser shall have performed all
covenants and obligations and complied with all conditions required by this
Agreement to be performed or complied with by the Purchaser on or before the
Closing Date.
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 Closing
Date.
13.04 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
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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 dated the date of Closing, in substantially the
form attached hereto as Exhibit 13.05.
13.06 Approvals. The Purchaser shall have obtained the approvals
referenced in Section 12.06 and the Seller shall have obtained any consents and
approvals required hereby, including those set forth on Exhibit 8.06.
ARTICLE XIV
CLOSING
14.01 Time and Place. The hour, date and location of Closing under
this Agreement shall be at a location and on a date mutually acceptable to
Purchaser and Seller as soon as practicable after the receipt of all regulatory
and governmental approvals and other consents and the expiration of any required
waiting period (the "Closing Date").
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 May 3, 2002;
(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 May 3, 2002;
(d) by the Seller or the Purchaser in writing at any time
after any of the regulatory authorities has denied any application of the other
party for approval of the transactions contemplated herein;
(e) by the Purchaser in writing on or before the Closing
Date if as a result of its due diligence review or its review of the exhibits
and schedules to be provided by Seller pursuant to this Agreement and attached
hereto, it discovers a fact, circumstance or valuation issue 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 May 3, 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.
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(g) any time on or prior to the Closing 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 Closing Date.
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) If the termination is due to a failure or breach on
the part of the Purchaser, 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 Cooperation. Subject to the terms and conditions hereof, each
party hereto agrees promptly to take, or cause to be taken, all commercially
reasonable actions and to do or cause to be done, all things reasonably
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.
16.02 Assignments of Certain Assets. Seller and Purchaser hereby
agree that Purchaser (in its sole discretion) may direct that at Closing Seller
assign the Discounted Loans, Other Real Estate and any other low quality assets
directly to a subsidiary or other affiliate of Purchaser; provided, that such
transfer to a subsidiary or other affiliate of Purchaser shall not affect
Purchaser's obligation to pay, or cause the payment of, the Purchase Price for
such assets.
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ARTICLE XVII
MISCELLANEOUS
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.
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.'
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, or facsimile
transmission 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.
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.
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17.10 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Alabama 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. The words "include," "including" and similar phrases shall mean
including, without limitation, by enumeration or otherwise.
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 including any exhibits
hereto, 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 Arbitration. All disputes arising or otherwise under this
Agreement shall be resolved first by the senior executive officers of each
party, and if they cannot resolve such disputes within 30 days, then by each
party's chief executive officers and if such chief executive officers cannot
resolve such dispute within 30 days, then by arbitration in accordance with the
Commercial Arbitration Rules of the American Arbitration Association.
Arbitration shall be by a single arbitrator experienced in the matters at issue
and selected by Seller and Purchaser in accordance with the Commercial
Arbitration Rules of the American Arbitration Association. The arbitration shall
be held in such place in Atlanta, Georgia as may be specified by the arbitrator
(or any place agreed to by Seller and Purchaser). The decision of the arbitrator
shall be final and binding as to any matters submitted under this Section 17.14;
provided, however, if necessary, such decision and satisfaction procedure may be
enforced by either Seller or Purchaser in any court of record having
jurisdiction over the subject matter or over any of the parties to this
Agreement. All costs and expenses incurred in connection with any such
arbitration proceeding (including reasonable attorney's fees) shall be borne by
the party against which the decision is rendered, or, if no decision is
rendered, such costs and expenses shall be borne equally by the Seller and
Purchaser. If the arbitrator's decision is a compromise, the determination of
which party or parties bears the costs and expenses incurred in connection with
any such arbitration proceeding shall be made by the arbitrator on the basis of
the arbitrator's assessment of the relative merits of the parties' positions.
[ Signatures on Next Page ]
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IN WITNESS WHEREOF, Purchaser and 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.
PEOPLES BANK OF NORTH ALABAMA
By: /s/ Xxxxx Xxxxxxxx
-------------------------------------
Its: President and Chief Executive Officer
-------------------------------------
ATTEST:
/s/ Xxxxxxx Xxxxxx
------------------------------
Its Senior Vice President
------------------------------
[CORPORATE SEAL]
COMMUNITY BANK
By: /s/ Xxxxxx X. Xxxxxxxxx, Xx.
---------------------------------------
Its: Chairman and Chief Executive Officer
---------------------------------------
ATTEST:
/s/ Xxxxxxx X. Xxxxxxxx, Xx.
------------------------------
Its Secretary
------------------------------
[CORPORATE SEAL]
000
XXXXX XX XXXXXXX )
)
CULLMAN COUNTY )
I, Xxxxxxx Xxxxxx, a Notary Public in and for said county in said state hereby
certify that Xxxxx Xxxxxxxx as President & CEO and Xxxxxxx Xxxxxx as Senior Vice
President of Peoples Bank of North Alabama, 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 25th day of February, 2002.
/s/ Xxxxxxx Xxxxxx
--------------------------------
Notary Public
My Commission expires: 09-13-03
[NOTARIAL SEAL]
STATE OF ALABAMA )
)
XXXXXX COUNTY )
I, Xxxxxx X. Xxxxxx, a Notary Public in and for said county in said state hereby
certify that Xxxxxx X. Xxxxxxxxx, Xx. as Chairman and CEO and Xxxxxxx X.
Xxxxxxxx as Secretary 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 25th day of February, 2002.
/s/ Xxxxxx X. Xxxxxx
-----------------------------------
Notary Public
My Commission expires: August 1, 2005
[NOTARIAL SEAL]
