BRANCH PURCHASE AND ASSUMPTION AGREEMENT
BY AND BETWEEN
BANK SOUTH
AND
AMERIBANK, N.A.
Dated as of October 18, 1995
TABLE OF CONTENTS
Page Number
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ARTICLE I - TRANSFER OF ASSETS AND LIABILITIES
Section 1.1 Transferred Assets . . . . . . . 1
Section 1.2 Purchase Price . . . . . . . . . 2
Section 1.3 Deposit Liabilities . . . . . . . 3
Section 1.4 Loans Transferred . . . . . . . . 7
Section 1.5 Safe Deposit Business . . . . . . 9
Section 1.6 Employee Matters . . . . . . . . 9
Section 1.7 Records and Data Processing . . . 10
Section 1.8 Security . . . . . . . . . . . . 10
Section 1.9 Taxes and Fees: Proration of
Certain Expenses . . . . . . . . . 11
Section 1.10 Real Property . . . . . . . . . . 11
ARTICLE II - CLOSING AND EFFECTIVE TIME
Section 2.1 Dates . . . . . . . . . . . . . . 13
Section 2.2 Closing . . . . . . . . . . . . . 14
Section 2.3 Adjustments . . . . . . . . . . . 16
ARTICLE III - INDEMNIFICATION
Section 3.1 Seller's Indemnification of
Purchaser . . . . . . . . . . . 17
Section 3.2 Purchaser's Indemnification of
Seller . . . . . . . . . . . . . 17
Section 3.3 Claims for Indemnity . . . . . . 17
Section 3.4 Limitations on Indemnification . 18
ARTICLE IV - REPRESENTATIONS AND WARRANTIES OF SELLER
Section 4.1 Corporate Organization . . . . . 18
Section 4.2 No Violation . . . . . . . . . . 18
Section 4.3 Corporate Authority . . . . . . . 19
Section 4.4 Enforceable Agreement . . . . . . 19
Section 4.5 Personal Property . . . . . . . . 19
Section 4.6 Real Property . . . . . . . . . . 19
Section 4.7 Condition of Property . . . . . . 21
Section 4.8 Proceedings and Information . . . 21
Section 4.9 Limitation of Representation,
and Warranties . . . . . . . . . . 21
ARTICLE V - REPRESENTATIONS AND WARRANTIES OF PURCHASER
Section 5.1 Corporate Organization . . . . . 21
Section 5.2 No Violation . . . . . . . . . . 22
Section 5.3 Corporate Authority . . . . . . . 22
Section 5.4 Enforceable Agreement . . . . . . 22
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ARTICLE VI - OBLIGATIONS OF PARTIES PRIOR TO AND
AFTER EFFECTIVE TIME
Section 6.1 Full Access . . . . . . . . . . . 22
Section 6.2 Delivery of Magnetic Media
Records . . . . . . . . . . . . 23
Section 6.3 Application for Approval to Effect
Purchase of Assets and Assumption
of Liabilities . . . . . . . . . 23
Section 6.4 Conduct of Business; Maintenance
of Properties . . . . . . . . . 23
Section 6.5 No Solicitation by Seller . . . . 24
Section 6.6 Further Actions . . . . . . . . . 24
Section 6.7 Fees and Expenses . . . . . . . . 24
Section 6.8 Breaches with Third Parties . . . 25
Section 6.9 Insurance . . . . . . . . . . . . 25
Section 6.10 Public Announcements . . . . . . 25
Section 6.11 Tax Reporting . . . . . . . . . . 25
ARTICLE VII - CONDITIONS TO PURCHASER'S OBLIGATIONS
Section 7.1 Representations and Warranties
True . . . . . . . . . . . . . 26
Section 7.2 Obligations Performed . . . . . . 26
Section 7.3 No Adverse Proceedings . . . . . 26
Section 7.4 Regulatory Approval . . . . . . . 26
ARTICLE VII - CONDITIONS TO SELLER'S OBLIGATIONS
Section 8.1 Representations and Warranties
True . . . . . . . . . . . . . . 27
Section 8.2 Obligations Performed . . . . . . 27
Section 8.3 No Adverse Proceedings . . . . . 27
Section 8.4 Regulatory Approval . . . . . . . 27
Section 8.5 Consummation of Merger . . . . . 27
ARTICLE IX - TERMINATION
Section 9.1 Methods of Termination . . . . . 28
Section 9.2 Procedure Upon Termination . . . 29
Section 9.3 Payment of Expenses . . . . . . . 29
ARTICLES X - OTHER AGREEMENTS
Section 10.1 Assumption of East Congress Lease 29
ARTICLE XI - MISCELLANEOUS PROVISIONS
Section 11.1 Amendment and Modification . . . 31
Section 11.2 Waiver or Extension . . . . . . . 31
Section 11.3 Assignment . . . . . . . . . . . 31
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Section 11.4 Confidentiality . . . . . . . . . 31
Section 11.5 Addresses for Notices, Etc. . . . 32
Section 11.6 Counterparts . . . . . . . . . . 33
Section 11.7 Headings . . . . . . . . . . . . 33
Section 11.8 Governing Law . . . . . . . . . . 33
Section 11.9 Expenses . . . . . . . . . . . . 33
Section 11.10 Time is of the Essence . . . . . 33
Section 11.11 Cover, Index and Headings, Etc. . 33
Section 11.12 Broker, Finder, Investment Banker Fee 34
Section 11.13 Severability . . . . . . . . . . 34
Section 11.14 No Third Party Beneficiaries . . 34
Section 11.15 Entire Agreement . . . . . . . . 34
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LIST OF EXHIBITS
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Exhibit Number Description
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1.1(b) Excluded Assets
1.6(c) Severance Benefits
2.2(b)(2) ▇▇▇▇ of Sale
2.2(b)(3) Assumption Agreement
2.2(b)(14) Closing Statement
BRANCH PURCHASE AND ASSUMPTION AGREEMENT
----------------------------------------
THIS BRANCH PURCHASE AND ASSUMPTION AGREEMENT (this
"Agreement") is made and entered into as of the 18th day of
October, 1995, by and between BANK SOUTH (herein, together with
its successors and assigns, "Seller"), a bank organized and
existing under the laws of the State of Georgia, with its
principal office located in Atlanta, Georgia; and AMERIBANK, N.A.
("Purchaser"), a national banking association organized and
existing under the laws of the United States, with its principal
office located in Savannah, Georgia.
Preamble
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The Board of Directors of Purchaser and the Policy Committee
or the Board of Directors of Seller have determined that the
transactions described herein are in their respective best
interests. The Agreement provides for the purchase by Purchaser
of certain assets from Seller and for the assumption by Purchaser
of certain liabilities of Seller related to Seller's banking
office located at ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ (the
"Branch Office").
In consideration of the premises and the respective
warranties, representations, covenants and agreements set forth
herein, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties,
intending to be legally bound, agree as follows:
ARTICLE I
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TRANSFER OF ASSETS AND LIABILITIES
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Section 1.1. Transferred Assets.
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(a) As of the Effective Time (as defined in Section 2.1) and
upon the terms and conditions set forth herein, Seller will
sell, assign, transfer, convey and deliver to Purchaser, and
Purchaser will purchase from Seller, all of the following
assets associated with the Branch Office and identified in
this Agreement and the Exhibits hereto, and not otherwise
excluded from sale pursuant to the provisions of Subsection
1.1(b) below:
(1) all real estate and improvements thereon at the
Branch Office (the "Real Property");
(2) except as provided in Exhibit 1.1(b), the
furniture, fixtures, leasehold improvements and
other tangible personal property (the "Personal
Property");
(3) all safe deposit contracts and leases for the safe
deposit boxes located at the Branch Office as of
the Effective Time (the "Safe Deposit Contracts");
(4) all loans transferred pursuant to Section 1.4;
(5) all coins and currency located at the Branch
Office as of the Effective Time (the "Coins and
Currency");
(6) Seller's rights in any equipment leased by the
Seller and used at the Branch Office ("Leased
Equipment") and not among the Excluded Assets; and
(7) The ATM located at the Branch Office.
(b) The assets, properties and rights listed below are
specifically excluded from the sale under this
Agreement (the "Excluded Assets"):
(1) any rights to the name "Bank South" and any of
Sellers' and its affiliates' and proprietary
mutual funds' logos, trademarks, trade names,
signs, paper stock, forms and other supplies
containing any such logos, trademarks or trade
names; and
(2) the assets listed on Exhibit 1.l(b) hereto.
(c) The Seller shall remove the Excluded Assets from the
Branch Office at or prior to the Effective Time. The
Seller shall remove, using reasonable efforts to limit
any damage to the Branch Office premises, the Excluded
Assets at its own cost and, apart from making any
repairs necessitated by Seller's negligence in removing
the Excluded Assets, Seller shall be under no
obligation to restore the Branch Office's premises to
their original conditions, which shall be the
Purchaser's responsibility.
Section 1.2. Purchase Price.
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(a) In consideration for the purchase of the Branch Office,
the Purchaser shall pay Seller a purchase price (the
"Purchase Price") equal to the sum of the following:
(1) The Net Book Value (as defined in Subsection
1.2(d) hereof) of the Personal Property and the
Real Property at the Branch Office;
(2) A premium for the Deposit Liabilities (as defined
in Subsection 1.3(a) hereof) equal to 1.3% of the
Deposit Liabilities (the "Deposit Premium");
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(3) The Net Book Value (as defined in Subsection
1.2(d) hereof), including accrued interest, for
the Loans as set forth in Section 1.4 hereof;
(4) The face amount of the Coins and Currency; and
(5) The Net Book Value of the ATM located at the
Branch Office.
(b) In addition, Purchaser shall assume, as of the
Effective Time, all of the duties, obligations and
liabilities of Seller relating to Leased Equipment, the
Safe Deposit Contracts and the Deposit Liabilities
(including all accrued interest on such Deposit
Liabilities); provided, that any cash items paid by
Seller and not cleared prior to the Effective Time
shall be the responsibility of Seller, subject to the
terms of Section 1.3 below.
(c) Seller shall prepare a balance sheet (the "Pre-Closing
Balance Sheet") in accordance with generally accepted
accounting principles as of a date not earlier than 30
days prior to the Effective Time (the "Pre-Closing
Balance Sheet Date") reflecting the assets to be sold,
assigned and transferred hereunder and the liabilities
to be transferred and assumed hereunder. Seller agrees
to pay to Purchaser at the Closing (as defined in
Section 2.1 hereof), in immediately available funds,
the excess amount, if any, of the amount of Deposit
Liabilities assumed by Purchaser pursuant to Subsection
1.2(b) above, as reflected by the Pre-Closing Balance
Sheet, over the aggregate purchase price computed in
accordance with Subsection 1.2(a) above, as reflected
by the Pre-Closing Balance Sheet. Purchaser agrees to
pay Seller at the Closing, in immediately available
funds, the excess, if any, of the aggregate purchase
price computed in accordance with Subsection 1.2(a)
above, as reflected by the Pre-Closing Balance Sheet,
over the amount of Deposit Liabilities assumed by
Purchaser pursuant to Subsection 1.2(b) above, as
reflected by the Pre-Closing Balance Sheet. Amounts
paid at Closing shall be subject to subsequent
adjustment based on the Post-Closing Balance Sheet.
(d) For purposes of this Agreement, "Net Book Value" means
the value determined from the Post-Closing Balance
Sheet and in all cases shall be net of accumulated
depreciation and amortization, and with respect to
Loans, shall not reflect any reduction for any general
or specific loan loss reserve or allowance for possible
loan losses maintained by Seller.
Section 1.3. Deposit Liabilities.
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(a) "Deposit Liabilities" shall mean all of Seller's
duties, obligations and liabilities relating to the
deposits and deposit accounts, including Individual
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Retirement Accounts, located at the Branch Office as of
the Effective Time, except as excluded by subsection
1.3(b) below.
(b) Except for those liabilities and obligations
specifically assumed by Purchaser under Subsection
1.2(b) above, Purchaser is not assuming any other
liabilities or obligations. Liabilities not assumed
include, but are not limited to, the following:
(1) Seller's cashier checks, official checks, letters
of credit, money orders, interest checks and
expense checks issued prior to closing,
consignments of U.S. Government "E" and "EE" bonds
and any and all traveler's checks.
(2) Liabilities or obligations with respect to any
litigation, suits, claims, demands or governmental
proceedings arising, commenced or made known to
Seller prior to Closing and related to the Branch
Office, or which thereafter arise with respect to
matters occurring prior to Closing.
(3) Deposit accounts associated with lines of credit
where a line of credit is excluded in accordance
with Subsection 1.4(b).
(4) Deposit accounts associated with qualified
retirement plans where Seller is the trustee of
such plan or the sponsor of a prototype plan used
by such plan.
(5) Deposit accounts with a negative balance, or an
overdraft or overdrafts outstanding 30 days or
more as of the business day immediately preceding
Closing.
(c) Seller does not represent or warrant that any deposit
customers whose accounts or deposits are assumed by
Purchaser will become or continue to be customers of
Purchaser upon or after the Effective Time.
(d) Purchaser agrees to pay in accordance with law and
customary banking practices all properly drawn and
presented checks, drafts and withdrawal orders
presented to Purchaser by mail, through automated
teller machines, over the counter or through the check
clearing system or any other clearing system of the
banking industry, by depositors of the accounts
assumed, whether drawn on the checks, withdrawal or
draft forms provided by Seller or by Purchaser, and in
all other respects to discharge, in the usual course of
the banking business, the duties and obligations of
Seller with respect to the balances due and owing to
the depositors whose accounts are assumed by Purchaser.
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(e) If, after the Effective Time, any depositor, instead of
accepting the obligation of Purchaser to pay the
Deposit Liabilities assumed, shall demand payment from
Seller for all or any part of any such assumed Deposit
Liabilities, Seller shall not be liable or responsible
for making such payment; provided, that, for purposes
of maintaining relationships of the Branch Office
customers, if Seller shall pay the same pursuant to
procedures mutually agreed upon by Purchaser and
Seller, Purchaser shall reimburse Seller for any such
payments, and Seller shall not be deemed to have made
any representations or warranties to Purchaser with
respect to any such checks, drafts or withdrawal
orders, and any such representations or warranties
implied by law are hereby expressly disclaimed. Seller
and Purchaser shall make arrangements to provide for
the daily settlement with immediately available funds
by Purchaser of checks, drafts, withdrawal orders,
returns and other items presented to and paid by Seller
within 60 days after the Effective Time and drawn on or
chargeable to accounts that have been assumed by
Purchaser; provided, however, Seller shall be held
harmless and indemnified by Purchaser for acting in
accordance with such arrangements.
(f) Purchaser agrees, at its cost and expense, (1) to
assign new account numbers to depositors of assumed
accounts utilizing Purchaser's transit routing number,
(2) to notify such depositors, on or before the
Effective Time, in a form and on a date mutually
acceptable to Seller and Purchaser, of Purchaser's
assumption of Deposit Liabilities, and (3) to furnish
such depositors with checks on the forms of Purchaser
and with Purchaser's transit routing numbers and with
instructions to utilize Purchaser's checks and to
destroy unused check, draft and withdrawal order forms
of Seller. (If Purchaser so elects, Purchaser may offer
to buy from such depositors their unused Seller check,
draft and withdrawal order forms). In addition, Seller
will notify its affected customers by letter of the
pending assignment of Seller's deposit accounts to
Purchaser, which notice shall be at Seller's cost and
expense and in a form mutually agreeable to Seller and
Purchaser. Purchaser may provide, prior to Closing at
its sole expense, such customers with notices of
changes in terms and other information regarding the
transaction contemplated hereby, subject to prior
review by and consent of Seller. The parties shall
cooperate and coordinate such notices and shall, to the
extent practicable, combine mailings and share the
costs of any combined mailings.
(g) Subject to Section 1.3(l) below, Purchaser shall pay
Seller on demand an amount equivalent to the amount of
any checks, drafts or withdrawal orders credited to
assumed Deposit Liabilities as of the Effective Time
that are returned to Seller after the Effective Time.
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(h) On and after the Effective Time, Purchaser will assume
and discharge Seller's duties and obligations in
accordance with the terms and conditions and laws,
rules and regulations that apply to the certificates,
accounts and other Deposit Liabilities assumed pursuant
to this Agreement.
(i) On and after the Effective Time, Purchaser will
maintain and safeguard in accordance with applicable
law and sound banking practices all account documents,
deposit contracts, signature cards, deposit slips,
canceled items and other records related to the Deposit
Liabilities assumed under this Agreement, subject to
Seller's right of access to such records as provided in
this Agreement.
(j) Seller will render a final statement to each depositor
of an account assumed under this Agreement as to
transactions occurring through the Effective Time.
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.
(k) The Purchaser, at its expense, will timely notify, in
advance of the Closing, all Automated Clearing House
("ACH") originators of the transfers and assumptions to
be made pursuant to the Agreement as of the Closing
Date. For a period of 90 days beginning on the
Effective Time, Seller will, absent contrary prior
written directions from Purchaser, honor all ACH items,
related to accounts assumed under this Agreement which
are mistakenly routed or presented to Seller. Seller
will electronically transmit such ACH data to
Purchaser, which will reimburse Seller in funds
immediately available to Seller for any such items, and
Seller will not impose any additional charges to
Purchaser for such services. 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
90-day period will be returned to the presenting party.
(l) After the Effective Time, Purchaser agrees to use its
reasonable efforts to collect from Purchaser's
customers amounts equal to any debit card connected
with a deposit 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 returned to Seller after the
Effective Time which were honored by Seller prior to
the Effective Time 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(s) 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 at the time of
notification by Seller to Purchaser of the charged back
or returned item. Notwithstanding the foregoing,
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Purchaser shall have no duty to remit funds for any
item or charge that has been improperly returned or
charged to Seller.
Section 1.4. Loans Transferred.
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(a) Seller will transfer to Purchaser at the Effective
Time, subject to the terms and conditions of this
Agreement, all of Seller's right, title and interest in
(including all collateral relating thereto) loans
maintained, serviced and listed in Seller's general
ledger as loans of the Branch Office (collectively the
"Loans").
(b) Notwithstanding the provisions of subsection 1.4(a)
above, the Loans shall not, except to the extent the
parties hereto may mutually agree otherwise in writing,
include:
(1) nonaccruals (which term shall include loans in
which the collateral securing same has been
repossessed or in which collection efforts have
been instituted or foreclosure proceedings have
been filed);
(2) loans 90 days or more past due or charged off; and
(3) loans upon which insurance with respect to
collateral has been force-placed; and
(4) loans in connection with which the borrower has
filed a petition for relief under the United
States Bankruptcy Code prior to the Effective
Time;
(5) any loans that Purchaser selects for exclusion
during the due diligence period provided in
Section 6.1 hereof, during which period Seller
shall provide Purchaser with reasonable access to
all documentation and collateral files related to
any loans attributable to the Branch Office,
including any documentation and collateral files
located at Seller's offices in Atlanta, Georgia or
elsewhere; and
(6) any overdrafts related to deposit accounts
excluded by Section 1.3(b)(5) hereof.
(c) Seller and Purchaser agree that Seller will assign to
Purchaser, and Purchaser will become the beneficiary
of, credit life insurance written on direct consumer
installment loans and coverage will continue to be the
obligation of the current insurer after the Effective
Time and for the duration of such insurance as provided
under the terms of the policy or certificate to the
extent permitted under such insurance policies and to
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the extent permitted without further cost to the
Seller. If Purchaser becomes the beneficiary of credit
life insurance written on consumer installment loans,
Seller and Purchaser agree to cooperate in good faith
to develop a mutually satisfactory method by which the
current insurer will make rebate payments to and
satisfy claims of the holders of such certificates or
policies of insurance after the Effective Time. The
parties' obligations in this subsection 1.4(c) are
subject to any restrictions contained in existing
insurance contracts and to applicable Law.
(d) In connection with the transfer of any Loans requiring
notice to the related borrower thereunder, Purchaser
and Seller agree to comply with all notice and
reporting requirements of the loan documents or of any
law or regulation.
(e) All Loans transferred to Purchaser (other than as
specified in Section 1.4(b)) shall be valued at their
Net Book Value, such value to include accrued but
unpaid interest and other charges.
(f) All Loans will be transferred without recourse and
without any warranties or representations as to their
collectibility or the creditworthiness of any of the
obligors of such Loans. To Seller's knowledge, the
Loans were, when originated, made consistent in all
material respects with applicable laws then in effect.
(g) Purchaser, at its expense, will issue new coupon books
for payment of Loans for which Seller provides coupon
books with instructions to utilize Purchaser's coupons
and to destroy unused coupons furnished by Seller.
(h) For a period of 90 days after the Effective Time,
Seller will forward in funds immediately available to
Purchaser, loan payments on the Loans received by
Seller. Purchaser shall reimburse Seller upon demand
for checks submitted by Borrowers to Seller, but
returned on payments forwarded by Seller to Purchaser;
however, to the extent possible, Seller will deduct the
amount of such returned checks from payments received
and shall settle with Purchaser on a net basis.
(i) As of the Effective Time and upon receipt from the
Seller, Purchaser will be responsible for maintaining
and safeguarding all Loan files, documents and records
related to the Loans in accordance with applicable law
and sound banking practices.
(j) If the balance due on any Loan purchased pursuant to
this Section 1.4 has been reduced by Seller as a result
of a payment by check received prior to the Effective
Time, which item is returned after the Effective Time,
the asset value represented by the Loan transferred
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shall be correspondingly increased, and an amount in
cash equal to such increase shall be paid by Purchaser
to Seller promptly upon demand.
(k) Purchaser may notify Seller 45 days or more prior to
Closing of any consumer Loan files that lack the
collateral specified in the underlying Loan documents,
and Purchaser will have the option not to purchase such
Loans where Seller cannot deliver the specified
collateral at Closing with the related Loan.
Section 1.5. Safe Deposit Business.
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(a) As of the Effective Time, Purchaser will assume and
discharge Seller's obligations with respect to the safe
deposit box business at the Branch Office in accordance
with the terms and conditions of contracts or rental
agreements related to such business, and Purchaser will
maintain all facilities necessary for the use of such
safe deposit boxes by persons entitled to use them
during the period for which such boxes have been rented
and the rent theretofore paid to Seller.
(b) As of the Effective Time, Purchaser shall maintain and
safeguard the records related to such safe deposit box
business, and Purchaser shall be responsible for
granting access to and protecting the contents of safe
deposit boxes at the Branch Office.
(c) Safe deposit box rental payments (not including late
payment fees) collected by Seller on or before the
Effective Time shall be prorated as of the Effective
Time.
Section 1.6. Employee Matters.
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(a) Purchaser shall hire all employees employed by Seller
at the Branch Office at the Effective Time (the
"Employees"), in their then current functional
positions at each Branch Office with remuneration not
less than current levels (subject to normal salary
increases) and benefits generally equivalent to
similarly situated employees of Purchaser. Except as
expressly provided otherwise below, Employees shall
receive full credit for their prior service with Seller
under Purchaser's vacation and sick leave policies. As
of the Effective Time, the Employees and their
dependents, if any, previously covered under Seller's
health insurance plan shall be covered under
Purchaser's health insurance plan without being subject
to any pre-existing condition limitations, except those
excluded under Seller's health insurance plan.
Employees shall receive full credit for their prior
service with Seller for purposes of determining their
participation in, and eligibility and vesting rights
under, Purchaser's "pension plans" (as defined in
Section 3(2) of the Employee Retirement Income Security
Act of 1974 ("ERISA")) and vacation and other "employee
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welfare benefit plans" (as defined in Section 3(1) of
ERISA). Benefit accrual under Purchaser's pension
plans shall accrue from the Employees' first day of
service with Purchaser and shall be based on service
with Purchaser.
(b) Seller makes no representations or warranties about whether
any of the Employees will remain employed at the Branch Office
after the date hereof or upon or after the Effective Time.
Seller will use its reasonable efforts to maintain the Employees
as employees of Seller at the Branch Office until the Effective
Time. The Seller shall have sole and absolute discretion with
respect to any Employee whose employment shall be terminated for
any reason prior to the Effective Time or who shall elect not
to be an employee of Purchaser, and Purchaser shall have no
liability therefor. Seller agrees that, for a period of 12
months after the Effective Time, it will not solicit for
employment any Employee who remains employed by Purchaser.
(c) Purchaser agrees for a period of 12 months after the Effective
Time, it will not terminate a transferred Employee without cause
without paying to such Employee a severance benefit equal
to the applicable severance benefit set forth in Exhibit 1.6(c).
Section 1.7. Records and Data Processing.
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(a) As of the Effective Time, Purchaser shall become responsible for
maintaining the files, documents and records referred to in this
Agreement. Purchaser will preserve and safekeep them as and for
the periods required by applicable law and sound banking practice
for the joint benefit of Seller and Purchaser. After the Effective
Time, Purchaser will permit Seller and its representatives, for
reasonable cause, at reasonable times and upon reasonable notice
and at Seller's expense, to examine, inspect, copy and reproduce
any such files, documents or records as Seller deems reasonably
necessary.
(b) As of the Effective Time, Seller will permit Purchaser and its
representatives, for reasonable cause, at reasonable times and
upon reasonable notice and at Purchaser's expense, to examine,
inspect, copy and reproduce files, documents or records retained
by Seller regarding the assets and liabilities transferred under
this Agreement as Purchaser deems reasonably necessary.
Section 1.8. Security.
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As of the Effective Time, Purchaser shall be solely responsible for
the security of and insurance on all persons and property located
in or about the Branch Office.
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Section 1.9. Taxes and Fees, Proration of Certain Expenses.
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Purchaser shall be responsible and liable for the payment of all filing
and recordation fees and taxes related to this transaction; except
that Purchaser shall not be responsible for, or have any liability
with respect to, income or similar taxes upon the Seller arising
out of this transaction, if any, and Seller agrees that it shall
pay, or represents that it has paid, in a timely manner any
and all such taxes. Purchaser shall not be responsible for
any tax liabilities of Seller arising from the business or
operations of the Branch Office before the Effective Time,
and Seller shall not be responsible for any tax liabilities
of Purchaser arising from the business or operations of the
Branch Office after the Effective Time. Utility payments,
telephone charges, real property taxes, personal property
taxes, rent, salaries, deposit insurance premiums, other
ordinary operating expenses of the Branch Office and other
expenses and taxes related to the liabilities assumed or
assets purchased hereunder shall be prorated between the parties
as of the Effective Time. To the extent any such item has been
prepaid by Seller for a period extending beyond the Effective Time,
there shall be a proportionate monetary adjustment in favor of Seller.
Section 1.10. Real Property.
------------ -------------
(a) Seller agrees to deliver to Purchaser as soon as reasonably
possible after the execution of this Agreement copies of all
title information in possession of or available to Seller,
including but not limited to title insurance policies,
attorney's opinions on title, surveys, covenants, deeds,
notes and deeds of trust and easements relating to the Real
Property. In addition, Seller agrees to provide any plans
and specifications, engineering reports, soil reports,
environmental reports, appraisals and similar information it may
have, if any, relating to the Real Property. Such delivery shall
constitute no warranty hereunder or otherwise by Seller as to
the accuracy or completeness thereof or that Purchaser is
entitled to rely thereon.
(b) Purchaser agrees to review title to the Real Property within
45 days of the date of this Agreement, and to notify Seller
in writing within such 45 day period of any mortgages, pledges,
environmental matters, material liens, encumbrances,
restrictions, reservations, tenancies, encroachments, overlaps
or other title exceptions or zoning or similar land use
violations related to the Real Property and materially and
adversely affecting its value to which Purchaser reasonably
objects (collectively, the "Title Defects"). Purchaser agrees
that Title Defects shall not include real property taxes not
yet due and payable and easements and rights of way of record
which do not materially interfere with the use of the Real
Property as a Branch Office. Seller shall make a good faith
effort to correct any such Title Defect to Purchaser's reasonable
satisfaction at least 10 days prior to Closing;
PROVIDED, HOWEVER, that Seller shall not be obligated to bring
-11-
any lawsuit or make any payments of money (except to pay
liens that Seller does not dispute in good faith) to cure a
Title Defect. If Seller is unable to cure any such Title
Defects to Purchaser's reasonable satisfaction, Purchaser
shall have the option either to terminate this Agreement with
respect to the purchase of the Real Property of the Branch
Office having such Title Defects or to receive title in its
then existing condition. Upon termination of this Agreement
with respect to the Real Property of any Branch Office pursuant
to this Section 1.10, neither party shall have any further
liability to the other party under this Agreement with respect
to such Branch Office Real Property, and the Purchase Price
shall be adjusted accordingly.
(c) Purchaser shall have the right to update title matters at
Closing for any changes which may have arisen since the date
of Purchaser's original title search. If such update indicates
any new Title Defects, Seller may elect upon notice to Seller
specifying the new Title Defects, if any, to delay the Closing
with respect to the Real Property of the affected Branch Office
for up to 30 days while Seller makes a good faith effort to cure
any such Title Defect to Purchaser's reasonable satisfaction;
provided that Seller shall not be obligated to bring any suit
or action or make any payments of money (except to pay liens
that Seller does not dispute in good faith) to cure a Title Defect.
If Seller is unable to cure any such Title Defect within such 30
day period, Purchaser shall have the option to receive title in
the then existing condition or to terminate this Agreement with
respect to such purchase of the Real Property of the affected
Branch Office, in which event neither party shall have any
further liability to the other party under this Agreement with
respect to the Real Property of the affected Branch Office,
and the purchase price shall be adjusted accordingly.
(d) Purchaser shall have the right to conduct such examination and
investigation of structural and environmental matters with
respect to the Real Property as it may reasonably require and
shall report the results of any such investigation to Seller no
later than 45 days after the date of this Agreement; PROVIDED,
HOWEVER, that without the prior written consent of Seller,
Purchaser shall not conduct any ground water monitoring or
install any test well or undertake any other investigation
which requires a permit or license from, or the reporting
of the investigation or the results thereof to, a local or
state environmental regulatory authority or the United States
Environmental Protection Agency. Seller shall have the
right, but not the obligation, to cure any violation of Law
relating to the environment or structural defects which are
discovered by Purchaser's investigation. If Seller either
refuses to give such written consent or refuses to cure any
material violation of law relating to the environment or
material structural defect, Purchaser shall have the option
either to purchase the Real Property in its then existing
condition or to terminate this Agreement with respect to
the affected Branch Office Real Property, in which event
-12-
neither party shall have any further liability to the other
under this Agreement with respect to such Branch Office Real
Property, and the Purchase Price to be paid by Purchaser shall
be adjusted accordingly.
(e) In the event of any material damage to or destruction of the
Real Property, or any material portion thereof, or in the event
of any taking or filing of a condemnation action against the Real
Property, or any material portion thereof prior to Closing,
Purchaser may elect to: (i) terminate this Agreement with
respect to the Real Property by giving notice to Seller,
whereupon the provisions of this Agreement solely with respect
to the Real Property shall terminate and the parties shall
be relieved of and released from any and all further rights,
duties, obligations and liabilities hereunder with respect to
the sale of the Branch Office Real Property and the Purchase
Price to be paid by Purchaser shall be adjusted accordingly;
or (ii) consummate the purchase of the Real Property without
any reduction of or adjustment to the Purchase Price, whereupon
at Closing, Seller shall pay to Purchaser all insurance
proceeds then received by Seller and all condemnation awards
and other payments in connection with the exercise of the
power of eminent domain then received by Seller, and in
addition, Seller shall transfer and assign to Purchaser all
rights of Seller with respect to payments for damages or
compensation on account of such damages, destruction, taking or
threat of taking. Seller shall notify Purchaser promptly upon
Seller having actual knowledge of the occurrence of any damage,
destruction, taking or written notice of a proposed taking
affecting the real Property. The term "material portion" of
the Real Property as used herein shall mean a portion of the
Real Property having a value in excess of $100,000, or the
loss of which will render the Real Property unusable as a branch
banking facility.
ARTICLE II
----------
CLOSING AND EFFECTIVE TIME
--------------------------
Section 2.1. Dates.
----------- -----
The purchase of assets and assumption of liabilities provided for in
this Agreement shall occur at a closing (the "Closing") to be held at
10:00 A.M. local time at the offices of Seller or its counsel in
Atlanta, Georgia as soon as practicable and upon the date all
necessary approvals by the applicable regulatory agencies have been
issued, and all statutory waiting periods related to such regulatory
approvals have expired. All regulatory approvals necessary to
Purchaser's acquisition of the Branch Office and the transactions
contemplated herein shall have been received by Purchaser no
later than February 28, 1996, and all related statutory waiting
periods shall have expired by no later than March 29, 1996.
-13-
The transactions contemplated herein shall become effective at
2:00 p.m. local time, or such other time as the parties may
mutually agree, on the business day on which the Closing occurs
(the "Effective Time").
Section 2.2. Closing.
----------- -------
(a) All actions taken and documents delivered at the Closing
shall be deemed to have been taken and executed simultaneously,
and no action shall be deemed taken nor any document delivered
until all have been taken and delivered.
(b) At the Closing, subject to all the terms and conditions of this
Agreement, Seller shall deliver to Purchaser:
(1) Limited warranty deeds transferring title to the Real
Property to Purchaser;
(2) A ▇▇▇▇ of Sale, in substantially the form attached
hereto as Exhibit 2.2(b)(2) (the "▇▇▇▇ of Sale"),
transferring to Purchaser all of Seller's interest
in the Personal Property and in the Loans;
(3) An Assumption Agreement, in substantially the form
attached hereto as Exhibit 2.2(b)(3) (the "Assumption
Agreement"), assigning Seller's interest in the
Leased Equipment, the Safe Deposit Contracts, and
in the Deposit Liabilities;
(4) Consents from third persons that are necessary to
effect the assignments set forth in the Assumption
Agreement, including, but not limited to, the lessors
of the Leased Equipment (to the extent required by
such leases);
(5) Seller's keys to the safe deposit boxes and Seller's
records related to the safe deposit box business at
the Branch Office;
(6) Seller's files and records related to the Loans;
(7) Seller's records related to the Deposit Liabilities
assumed by Purchaser;
(8) Immediately available funds in the net amount shown
as owing to Purchaser by Seller on the Closing
Statement, if any;
(9) The Coins and Currency;
-14-
(10) Such of the other assets to be purchased as are capable
of physical delivery;
(11) A certificate of a proper officer of Seller, dated as
of the Effective Time, certifying the fulfillment of
all conditions which are the obligation of Seller and
that all of the representations and warranties of
Seller set forth in this Agreement remain true and
correct in all material respects as of the Effective
Time;
(12) Certified copies of (A) the Articles of Incorporation
and Bylaws of Seller and (B) a resolution of the
Seller's Board of Directors, or its Policy Committee,
approving the sale of the assets and the assumption
of the liabilities contemplated hereby;
(13) Such certificates and other documents as Purchaser
and its counsel may reasonably require to evidence
the receipt by Seller of all necessary corporate and
regulatory authorizations and approvals for the
consummation of the transactions provided for
in this Agreement; and
(14) A Closing Statement, substantially in the form attached
hereto as Exhibit 2.2(b)(14) (the "Closing Statement").
(c) At the Closing, subject to all the terms and conditions of
this Agreement, Purchaser shall deliver to Seller:
(1) The Assumption Agreement;
(2) A certificate of receipt acknowledging the delivery
and receipt of possession of the property and records
referred to in this Agreement, and final title
opinion(s) with respect to the Branch Office's
Real Property;
(3) Immediately available funds in the net amount shown
as owing to Seller by Purchaser on the Closing
Statement, if any;
(4) A certificate of a proper officer of Purchaser,
dated as of the date of Closing, certifying the
fulfillment of all conditions which are the obligation
of Purchaser and that all of the representations
and warranties of Purchaser set forth in this
Agreement remain true and correct in all material
respects as of the Effective Time;
(5) Certified copies of (A) the Articles of Incorporation
and Bylaws of the Purchaser and (B) a resolution of
the Board of Directors, or its Executive Committee, of
-15-
Purchaser approving the purchase of the assets and
the assumption of the liabilities contemplated hereby;
(6) Such certificates and other documents as Seller and
its counsel may reasonably require to evidence the
receipt of Purchaser of all necessary corporate and
regulatory authorizations and approvals for the
consummation of the transactions provided for in this
Agreement; and
(7) The Closing Statement.
(d) All instruments, agreements and certificates described in this
Section 2.2 shall be in form and substance reasonably satisfactory
to the parties and their respective legal counsel.
Section 2.3. Adjustments.
----------- -----------
(a) Not later than 15 business days after the Effective Time
(the "Post-Closing Balance Sheet Delivery Date"), Seller
shall deliver to Purchaser a balance sheet dated as of
the Effective Time and prepared in accordance with generally
accepted accounting principles reflecting the assets sold
and assigned and the liabilities transferred and assumed
hereunder (the "Post-Closing Balance Sheet"). Additionally,
Seller shall deliver to Purchaser a list of loans purchased,
individually identified by account number, which list shall
be appended to the ▇▇▇▇ of Sale. Seller shall afford
Purchaser and its accountants and attorneys the opportunity
to review all work papers and documentation used by Seller
in preparing the Post-Closing Balance Sheet. Within 15
business days following the Post-Closing Balance Sheet
Delivery Date (the "Adjustment Payment Date"), Seller
and Purchaser shall effect the transfer of any funds
as may be necessary to reflect changes in such assets
and liabilities between the Pre-Closing Balance Sheet
and the Post-Closing Balance Sheet together with interest
thereon computed from the Effective Time to the Adjustment
Payment Date at the applicable Federal Funds Rate (as
hereinafter defined).
(b) In the event that a dispute arises as to the appropriate
amounts to be paid to either party on the Adjustment Payment
Date, each party shall pay to the other on such Adjustment
Payment Date all amounts other than those as to which a
dispute exists. Any disputed amounts retained by a party
which are later found to be due to the other party shall be
paid to such other party promptly upon resolution with interest
thereon from the Adjustment Payment Date to the date paid at
the Federal Funds Rate.
(c) The "Federal Funds Rate" shall be the mean of the high and low
rates quoted for Federal Funds under "Money Rates" in THE WALL
STREET JOURNAL, Eastern Edition adjusted daily as such
-16-
mean may increase or decrease during the period between the
Effective Time and the Adjustment Payment Date.
ARTICLE III
-----------
INDEMNIFICATION
---------------
Section 3.1. Seller's Indemnification of Purchaser.
----------- -------------------------------------
Seller shall indemnify, defend and hold harmless Purchaser from and
against any breach by Seller of any representation or warranty contained
herein and in the Exhibits hereto and all claims, losses, liabilities,
demands and obligations, including reasonable attorneys' fees and
expenses, arising out of any actions, suits or proceedings commenced
or which arise from matters occurring prior to the Effective Time
(other than proceedings, actions, suits or protests seeking to prevent
or limit the consummation of the transactions contemplated hereunder),
relating to operations at the Branch Office; and, except as otherwise
provided in this Agreement, Seller shall further indemnify, hold harmless
and defend Purchaser from and against all claims, losses, liabilities,
demands and obligations, including reasonable attorneys' fees and
expenses, real estate taxes, intangibles and franchise taxes, sales
and use taxes, social security and unemployment taxes, all accounts
payable and operating expenses (including salaries, rents and utility
charges) incurred by Seller prior to the Effective Time and which are
claimed or demanded on or after the Effective Time, or which arise out
of any actions, suits or proceedings commenced on or after the Effective
Time and which relate to operations at the Branch Office prior to the
Effective Time.
Section 3.2. Purchaser's Indemnification of Seller.
----------- -------------------------------------
Purchaser shall indemnify, defend and hold harmless Seller from and
against any breach by Purchaser of any representation or warranty
contained herein and in the Exhibits hereto and all claims, losses,
liabilities, demands and obligations, including reasonable attorneys'
fees and expenses, real estate taxes, intangibles and franchise taxes,
sales and use taxes, social security and unemployment taxes, all
accounts payable and operating expenses (including salaries, rents
and utility charges), which Seller may (i) incur in connection
with operations and transactions occurring after the Effective Time
and (ii) which involve, subsequent to the Effective Time, the Branch
Office, the assets transferred or the liabilities assumed pursuant to
this Agreement.
Section 3.3. Claims for Indemnity.
----------- --------------------
(a) A claim for indemnity under Sections 3.1 or 3.2 of this
Agreement may be made by the claiming party at any time
prior to the first anniversary of the Effective Time by
-17-
the giving of written notice thereof to the other party.
Such written notice shall set forth in reasonable detail
the basis upon which such claim for indemnity is made.
In the event that any such claim is made within such prescribed
12 month period, the indemnity relating to such claim shall
survive until such claim is finally resolved. The foregoing
indemnities shall terminate and be of no further force and effect
as to any claims not made within such 12 month period.
(b) In the event that any person or entity not a party to this
Agreement shall make or threaten any demand, claim, action,
suit, protest, or other proceeding or litigation which may
result in any liability, damage or loss to one party hereto
of the kind for which such party is entitled to indemnification
pursuant to Section 3.1 or 3.2 hereof, then, after written
notice is provided by the indemnified party to the indemnifying
party of such demand, claim or lawsuit, the indemnifying party
shall have the option, at its cost and expense, to retain
counsel for the indemnified party to defend any such demand,
claim, action, suit, protest, or other proceeding or litigation.
In the event that the indemnifying party shall fail to respond
within five days after receipt of such notice of any such
demand, claim, action, protest, or other proceeding or litigation,
then the indemnified party shall retain counsel and conduct the
defense of such demand, claim, action, protest, or other
proceeding or litigation as it may in its discretion deem
proper, at the cost and expense of the indemnifying party.
In effecting the settlement or compromise of any such proceeding,
an indemnified party shall act in good faith, shall consult
with the indemnifying party and shall enter into only such
settlement as the indemnifying party shall approve (the
indemnifying party's approval will be implied if it
does not respond within ten days of its receipt of the notice
of such proposed settlement or compromise).
Section 3.4. Limitations on Indemnification.
----------- ------------------------------
The parties shall have no obligations under this Article III for any
consequential liability, damage or loss the indemnified party may suffer.
ARTICLE IV
----------
REPRESENTATIONS AND WARRANTIES OF SELLER
----------------------------------------
Seller hereby represents and warrants to Purchaser as follows, which
representations and warranties shall survive the Effective Time for a
period of 12 months:
-18-
Section 4.1. Corporate Organization.
----------- ----------------------
Seller is a bank duly organized, validly existing and in good standing
under the laws of the State of Georgia. Seller has the corporate
power and authority to own its properties, to carry on its business as
currently conducted and to effect the transactions contemplated herein.
Section 4.2. No Violation.
----------- ------------
The Branch Office has been operated in all material respects in
accordance with applicable laws, rules and regulations. Neither
the execution and delivery of this Agreement, nor the consummation
of the transactions contemplated herein, will violate or conflict
with (a) Seller's Articles of Incorporation or Bylaws; (b) any
material provision of any material agreement or any other material
restriction of any kind to which Seller is a party or by which
Seller is bound; (c) any material statute, law, decree, regulation
or order of any governmental authority, or (d) any material provision
which will result in a default under, or which cause the acceleration
of the maturity of, any material obligation or loan to which Seller
is a party.
Section 4.3. Corporate Authority.
----------- -------------------
The execution and delivery of this Agreement, and the consummation
of the transactions contemplated herein, have been duly authorized
by Seller's Board of Directors or its Policy Committee thereof.
No further corporate authorization is necessary for Seller to
consummate the transactions contemplated hereunder.
Section 4.4. Enforceable Agreement.
----------- ---------------------
This Agreement has been duly authorized, executed and delivered
by Seller and is the legal, valid and binding agreement of Seller,
enforceable in accordance with its terms, subject to receivership,
conservatorship, and insolvency laws and general equitable principles.
Section 4.5. Personal Property and Loans.
----------- ---------------------------
Seller owns, and will convey to Purchaser at the Closing, all of
Seller's right, title and interest to all of the Personal Property
and Loans free and clear of any claims, mortgages, liens, security
interests, pledges or encumbrances thereon of any kind, except as
may otherwise be set forth in this Agreement and the Exhibits
hereto.
Section 4.6. Real Property.
----------- -------------
Seller makes the following representations and warranties regarding
the Real Property:
-19-
(a) Seller has no knowledge of any condemnation proceedings pending
against the Real Property.
(b) Seller has not entered into any agreement regarding the Real
Property, and neither Seller nor the Real Property is subject
to any claim, demand, suit, unfiled lien, proceeding or
litigation of any kind, pending or outstanding, or to
the knowledge of Seller, threatened or likely to be made
or instituted, which would in any way be binding upon Purchaser
or its successors or assigns or materially affect or limit
Purchaser's or its successors' or assigns' use and enjoyment
of the Real Property or which would materially limit or
restrict Purchaser's right or ability to enter into this
Agreement and consummate the sale and purchase contemplated hereby.
(c) Seller has or will have at Closing good and marketable fee simple
title to the Real Property and, at Closing, will own the Real
Property outright subject to no mortgage, pledge, lien, security
interest, lease, charge, encumbrance or conditional sales or
other title retention agreement except for real property taxes
not yet due and payable, and easements and rights of way of record
which do not materially interfere with the use of the Real Property
as a Branch Office.
(d) Except as set forth in Schedule 4.6(d) hereto, to Seller's actual
knowledge, during Seller's ownership of the Branch Office Real
Property, no "hazardous substances" (as defined in any federal
or state environmental laws or regulations) have been located
at, stored or disposed of on such Branch Office property and to
Seller's actual knowledge, there have been no releases of
hazardous substances in or on such Branch Office Real Property.
To Seller's actual knowledge, none of the Branch Office Real
Property to be sold pursuant to this Agreement contains any
underground storage tanks. There is no litigation pending,
or to Seller's actual knowledge, threatened before any court,
governmental agency, or authority or other forum in which Seller
or its Branch Office Real Property has been or, with respect
to threatened litigation, is reasonably likely to be named as a
defendant for alleged noncompliance with any environmental law
with respect to the Branch Office Real Property, except for
such pending or threatened litigation that is not reasonably
likely to have, individually or in the aggregate, a material
adverse effect on such Branch Office Real Property.
(e) Purchaser's sole remedy for a breach of the representations
and warranties in this Section 4.6 shall be to elect not to
purchase the Real Property of the affected Branch Office as
provided in Section 1.10.
-20-
Section 4.7. Condition of Property.
----------- ---------------------
The Real Property and Personal Property to be purchased by Purchaser
hereunder are sold AS IS, WHERE IS, with no warranties or
representations whatsoever, except as may be expressly represented
or warranted in this Agreement.
Section 4.8. Proceedings and Information
----------- ---------------------------
Except as specifically disclosed on the attached disclosure schedule,
there are no proceedings, actions, claims, suits or liabilities with
respect to Branch Office or any of the assets to be purchased by
Purchaser hereunder or the liabilities to be assumed by Purchaser
hereunder with respect to the Branch Office; and there are no Employee
disputes or labor relations problems with respect to any Branch
Office Employees.
Section 4.9. Limitation of Representations and Warranties.
----------- ---------------------------------------------
Except as may be expressly represented or warranted in this Agreement
by Seller, Seller makes no representations or warranties whatsoever
with regard to any asset being transferred to Purchaser or any liability
or obligation being assumed by Purchaser or as to any other matter, or
transaction.
ARTICLE V
---------
REPRESENTATIONS AND WARRANTIES OF PURCHASER
-------------------------------------------
Purchaser hereby represents and warrants to Seller as follows, which
representations and warranties shall survive the Effective Time for
a period of 12 months:
Section 5.1. Corporate Organization.
----------- ----------------------
Purchaser is a national banking association, duly organized, validly
existing and in good standing under the laws of the United States.
Purchaser has the corporate power and authority to own the properties
and assets being acquired, to assume the liabilities being transferred
and to effect the transactions contemplated herein.
-21-
Section 5.2. No Violation.
----------- ------------
Neither the execution and delivery of this Agreement, nor the
consummation of the transactions contemplated herein, will violate
or conflict with (a) the Articles of Association or Bylaws of Purchaser,
(b) any material provision of any material agreement or any other
material restriction of any kind to which Purchaser is a party or
by which Purchaser is bound, or (c) any material statute, law, decree,
regulation or order of any governmental or regulatory authority, or
(d) any material provision which will result in a default under,
or cause the acceleration of the maturity of, any material obligation
or loan to which Purchaser is a party.
Section 5.3. Corporate Authority.
----------- -------------------
The execution and delivery of this Agreement, and the consummation
of the transactions contemplated herein, have been duly authorized
by the Board of Directors (or Executive Committee) of Purchaser.
No further corporate authorization on the part of Purchaser is
necessary to consummate the transactions contemplated hereunder.
Section 5.4. Enforceable Agreement.
----------- ---------------------
This Agreement has been duly authorized, executed and delivered by
Purchaser and is the legal, valid and binding agreement of Purchaser
enforceable in accordance with its terms.
ARTICLE VI
----------
OBLIGATIONS OF PARTIES PRIOR TO AND AFTER EFFECTIVE TIME
--------------------------------------------------------
Section 6.1. Full Access.
-----------
Seller shall afford to the officers and authorized representatives
of Purchaser, upon prior notice and subject to Seller's normal security
requirements, access to the properties, books and records pertaining to
the Branch Office in order that Purchaser may have full opportunity to
make reasonable investigations, at reasonable times, without interfering
with the normal business and operations of the Branch Office or the
affairs of Seller relating to the Branch Office. The officers of Seller
shall furnish Purchaser with such additional financial and operating
data and other information as to its business and properties at the Branch
Office, or where otherwise located, as Purchaser may, from time to time,
reasonably request and as shall be available, including, without
limitation, information required for inclusion in all governmental
applications necessary to effect this transaction. Nothing in this
Section 6.1 shall require Seller to breach any obligation of
confidentiality or to reveal any proprietary information, trade secrets
or marketing or strategic plans. Records, including credit information
and collateral files,
-22-
relating to the Loans will be made available for review by Purchaser
for a period ending 45 days before the anticipated Closing.
Section 6.2 Delivery of Magnetic Media Records.
----------- ----------------------------------
Seller shall prepare at its expense and make available to Purchaser
at Seller's data processing center magnetic media records in Seller's
field format not later than 60 days prior to the anticipated Closing Date
and further shall make available to Purchaser such records updated as of
the Closing Date, which records shall contain the information related
to the items described in Subsections 2.2(b)(6) and (b)(7) above. Such
updated records shall be made available at such other times before and
after Closing as agreed to by the parties.
Section 6.3. Application for Approval to Effect Purchase of Assets and
----------- ---------------------------------------------------------
Assumptions of Liabilities.
--------------------------
Purchaser shall use its best efforts to prepare and file, as soon as
practicable and in any event within 30 days from the date hereof,
all applications required by law with the appropriate regulatory
authorities for approval to purchase and assume the aforesaid assets
and liabilities, to establish branches at the locations of the Branch
Office, and to effect in all other respects the transactions contemplated
herein. Purchaser agrees to process such applications diligently and
on a priority basis and to provide Seller promptly with a copy of such
applications as filed (except for any confidential portions thereof)
and all material notices, orders, opinions, correspondence and other
documents with respect thereto, and to use its best efforts to
obtain all necessary regulatory approvals. On the date hereof,
Purchaser knows of no reason why such applications should not receive
all such approvals. Purchaser shall promptly notify Seller upon receipt
by Purchaser of notification that any application provided for hereunder
has not been accepted for processing or has been denied. Seller shall
provide such assistance and information to Purchaser as shall be
reasonably requested by Purchaser to comply with the requirements
or reasonable requests of the applicable regulatory authorities.
Section 6.4. Conduct of Business; Maintenance of Properties.
----------- ----------------------------------------------
From the date hereof until the Effective Time, Seller covenants
that it will:
(a) Except as expressly provided herein, carry on the business of
the Branch Office substantially in the same manner as on the
date hereof, use all reasonable efforts to preserve intact
its current business organization and preserve its business
relationships with depositors, customers and others having
business relationships with it and whose accounts or loans
will be retained at the Branch Office and not move or transfer
deposits or Loans (other than those that are to be excluded
from transfer hereunder) to other offices; PROVIDED, HOWEVER,
Seller will not, advertise or promote new or substantially
-23-
new customer services or products in the market areas of the
Branch Office, except where it deems it necessary to meet
competition in the market areas served by the Branch Office;
(b) Cooperate with and assist Purchaser in assuring the orderly
transition of the business of the Branch Office to Purchaser
from Seller; and
(c) Maintain the Real Property and the Personal Property in its
current condition, ordinary wear and tear excepted.
Section 6.5. No Solicitation by Seller; etc.
----------- -------------------------------
For a period of 24 months after the Effective Time, Seller will
not specifically target and solicit customers of the Branch Office
utilizing any customer or mailing list which consists primarily of
customers of the Branch Office; provided, however, these restrictions
shall not restrict general mass mailings, telemarketing calls, statement
stuffers and other similar communications directed generally to current
customers of Seller or Seller's affiliates, or to the public or
newspaper, radio or television advertisements of a general nature
or otherwise prevent Seller from taking such actions as may be
required to comply with any applicable federal or state laws,
rules or regulations. In addition, these restrictions shall not
restrict the solicitation of commercial accounts normally established
and maintained in offices or other branch offices other than the
Branch Office. Nothing in this Section 6.5 is intended to or shall
require Seller to disclose any confidential or nonpublic information
to Purchaser, and if disclosed, such information shall be held by
Purchaser strictly confidential.
Section 6.6. Further Actions.
----------- ---------------
The parties hereto shall execute and deliver such documents and
instruments and take such other actions as the other party may
reasonably require in order to carry out the intent of this
Agreement. The parties shall cooperate with each other in
furtherance of this Agreement and the transactions contemplated
hereunder.
Section 6.7. Fees and Expenses.
----------- -----------------
Purchaser shall be responsible for the costs of all title examinations
and opinions, title insurance fees (if the Purchaser, in its sole
discretion, elects to obtain title insurance), regulatory filings
and application fees, surveys, its own attorneys' and accountants'
fees and expenses, recording costs, transfer fees, documentary
stamps, and other expenses it incurs in connection with its purchase
of the Branch Office and the transactions contemplated hereby.
Seller shall be responsible for its own attorneys' and accountants' fees
and expenses related to this transaction.
-24-
Section 6.8. Breaches with Third Parties.
----------- ---------------------------
If the assignment of any material claim, contract, license, lease or
commitment (or any benefit arising thereunder) without the consent
of a third party would constitute a breach thereof or materially
affect the rights of Purchaser or Seller thereunder, then such
assignment is hereby made subject to such consent or approval
being obtained.
Section 6.9. Insurance.
----------- ---------
As of the Effective Time, Seller will discontinue its insurance
coverage maintained in connection with the Branch Office and
the activities conducted thereon. Purchaser shall be responsible
for all insurance protection for the Branch Office's premises
and the activities conducted thereon immediately following the
Effective Time. Pending the Closing, risk of loss shall be the
responsibility of Seller.
Section 6.10. Public Announcements.
------------ --------------------
Seller and Purchaser agree that, from the date hereof, neither
shall make any public announcement or public comment regarding
this Agreement or the transactions contemplated herein without
first consulting with the other party hereto and reaching an
agreement upon the substance and timing of such announcement
or comment. Purchaser acknowledges and agrees that that the
transactions contemplated hereby will require public disclosure
in connection with any statutory notices required under the National
Bank Act or the Bank Merger Act and the Financial Institutions
Code of Georgia (the "Code"), and that Purchaser will properly disclose
this Agreement and the transactions contemplated herein in various
filings with, and reports to, the Securities and Exchange Commission
consistent with applicable securities laws, rules and regulations.
Seller shall have the obligation to prepare or supply audited
financial statements, if any, required with respect to
the assets and liabilities to be sold to Purchaser hereunder, and
Purchaser has the sole responsibility for complying with, and shall
comply with all securities laws, rules and regulations applicable to it
with respect to the transactions contemplated hereunder. Further,
Seller and Purchaser acknowledge the sensitivity of this transaction to
the Employees of the Branch Office, and except as required of Purchaser to
meet its obligations under applicable securities laws, rules and
regulations, no announcements to or communications with the public
or these Employees shall be made without the prior approval of the
Seller and Purchaser.
Section 6.11. Tax Reporting.
------------ -------------
Seller shall comply with all tax reporting obligations in connection
with transferred assets and liabilities on or before the Effective
Time, and Purchaser shall comply with all tax and other reporting
obligations with respect to the holding of transferred assets and
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liabilities after the Effective Time. The Purchaser does not intend
to and shall not hereby assume any liability for any failure by the
Seller to meet such obligations hereunder.
ARTICLE VII
-----------
CONDITIONS TO PURCHASER'S OBLIGATIONS
-------------------------------------
The obligation of Purchaser to complete the transactions contemplated
in this Agreement are conditioned upon fulfillment, on or before the Effective
Time, of each of the following conditions:
Section 7.1. Representations and Warranties True.
----------- -----------------------------------
The representations and warranties made by Seller in this Agreement
shall be true in all material respects on and as of the Effective
Time as though such representations and warranties were made at and
as of such time, except for any changes permitted by the terms
hereof or consented to by Purchaser.
Section 7.2. Obligations Performed.
----------- ---------------------
Seller shall (a) deliver or make available to Purchaser those items
required by Section 2.2 hereof and (b) perform and comply in all
material respects with all obligations and agreements required by
this Agreement to be performed or complied with by it prior to
or on the Effective Time.
Section 7.3. No Adverse Proceedings.
----------- ----------------------
On the Effective Time, no actions, suits or proceedings shall be
pending or threatened against Seller which is reasonably likely to
materially and adversely affect the business, properties and assets
of the Branch Office.
Section 7.4. Regulatory Approval.
----------- -------------------
Purchaser shall have received all necessary regulatory approvals
of the transactions contemplated in this Agreement, all notice and
waiting periods required by law to pass shall have passed, no judicial,
regulatory or other governmental orders or actions enjoining,
restraining, prohibiting or invalidating such transactions shall have
been issued and remain in effect or unstayed.
-26-
ARTICLE VIII
------------
CONDITIONS TO SELLER'S OBLIGATIONS
----------------------------------
The obligation of Seller to complete the transactions contemplated
in this Agreement are conditioned upon fulfillment, on or before the
Effective Time, of each of the following conditions:
Section 8.1. Representations and Warranties True.
----------- -----------------------------------
The representations and warranties made by Purchaser in this
Agreement shall be true in all material respects at and as
of the Effective Time as though such representations and
warranties were made at and as of such time, except for
any changes permitted by the terms hereof or consented to
by Seller.
Section 8.2. Obligations Performed.
----------- ---------------------
Purchaser shall (a) deliver to Seller those item required by
Section 2.2 hereof and (b) perform and comply in all material respects
with all obligations and agreements required by this Agreement to be
performed or complied with by it prior to or on the Effective Time.
Section 8.3. No Adverse Proceedings.
----------- ----------------------
As of the Effective Time, no actions, suits or other proceedings shall
be pending or threatened against Purchaser or Seller which might
materially and adversely affect the transactions contemplated
herein.
Section 8.4. Regulatory Approval.
----------- -------------------
Purchaser shall have received from the appropriate regulatory
authorities all regulatory approvals required by law to purchase
and assume the assets and liabilities, to establish a branch at the
location of the Branch Office, and to effect in all other respects
the transactions contemplated herein, all waiting periods required
by law to pass shall have passed, no actions, suits, protests or
other proceedings to enjoin, restrain, prohibit or invalidate such
transactions shall have been instituted or threatened, and all
conditions of any regulatory approval shall have been met. Such
approvals shall not have imposed any condition which is materially
disadvantageous or burdensome to Seller, would impose any additional
costs to Seller, or would delay the transactions contemplated
herein.
Section 8.5. Consummation of Merger.
----------- ----------------------
The merger of Bank South Corporation and NationsBank Corporation
shall have been completed.
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ARTICLE IX
----------
TERMINATION
-----------
Section 9.l. Methods of Termination.
----------- ----------------------
This Agreement may be terminated in any of the following ways:
(a) by either Purchaser or Seller, in writing 5 days in advance
of such termination, if the Closing has not occurred by
June 30, 1996;
(b) at any time on or prior to the Effective Time by the
mutual consent in writing of Purchaser and Seller;
(c) by Purchaser in writing if the conditions set forth
in Article VII of this Agreement shall not have been met
by Seller or waived in writing by Purchaser within 15 days
following the date of all approvals by regulatory agencies
and after all statutory waiting periods have expired, and
in no event later than June 30, 1996;
(d) by Seller in writing if the conditions set forth in Article
VIII of this Agreement shall not have been met by Purchaser
or waived in writing by Seller within 15 days following the
date of all approvals by regulatory agencies and after all
statutory waiting periods have expired, and in no event
later than June 30, 1996;
(e) any time on or prior to the Effective Time, by Purchaser or
Seller in writing if the other shall have been in breach of
any representation and warranty in any material respect
(as if such representation and warranty had been made on and
as of the date hereof and on the date of the notice of breach
referred to below), or in breach of any covenant, undertaking or
obligation contained herein, and such breach has not been cured
by the earlier of 30 days after the giving of notice to the
breaching party of such breach or the Effective Time;
provided, however, that there shall be no cure period in
connection with any breach of Section 6.3 hereof, so long
as any breach by Purchaser was not caused by any action or
inaction of Seller, and Seller may terminate this Agreement
immediately if regulatory applications are not filed within
30 days after the date of this Agreement as provided in that
Section;
(f) by Seller in writing at any time after any applicable regulatory
authority has denied by final action any application of Purchaser
for approval of the transactions contemplated herein, or in the
event of any action, suit, protest or proceeding that seeks
to delay, limit or prohibit the transactions contemplated herein.
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Section 9.2. Procedure Upon Termination.
----------- --------------------------
In the event of termination pursuant to Section 9.1 hereof, and except as
otherwise stated therein, written notice thereof shall be given to the
other party, and this Agreement shall terminate immediately upon receipt
of such notice unless an extension is consented to by the party having the
right to terminate.
If this Agreement is terminated as provided herein,
(a) each party will return all documents, work papers and other
materials of the other party, including photocopies or other
duplications thereof, relating to this transaction, whether
obtained before or after theexecution hereof, to the party
furnishing the same; and
(b) all information received by either party hereto with respect
to the business of the other party (other than information
which is a matter of public knowledge or which has heretofore
been published in any publication for public distribution or
filed as public information with any governmental authority)
shall not at any time be used for any business purpose by
such party or disclosed by such party to third persons.
Section 9.3. Payment of Expenses.
----------- -------------------
Should the transactions contemplated herein not be consummated because
of a party's breach of this Agreement, and the other party is not in
breach hereunder, in addition to such damages as may be recoverable
in law or equity, the other party shall be entitled to recover from
the breaching party upon demand, itemization and documentation, its
reasonable outside legal, accounting, consulting and other out-of-pocket
expenses, not to exceed $50,000.
ARTICLE X
---------
OTHER AGREEMENTS
----------------
Section 10.1. Assumption of ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Lease.
------------ ----------------------------------------
(a) Purchaser shall assume from Seller and Seller shall assign to
Purchaser, upon the terms and conditions of a written Assumption
Agreement (the "Assignment") mutually acceptable to Purchaser
and Seller, all of Seller's rights, interests and obligations
under that certain Office Lease dated July 22, 1987, by and
between Liberty-▇▇▇▇▇▇▇ Limited Partnership III ("Landlord")
and Seller (the "Lease") providing for the lease by Seller from
Landlord of the Bank South Center located at ▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "East Congress Street
Office"). Such Assignment shall be subject to the terms and
-29-
conditions of the Lease, a true and correct copy of which has
been delivered to Purchaser, and shall further be subject to
receipt of the Landlord's prior written consent as required by
Section 11.2 of the Lease, together with an Estoppel Certificate
from the Landlord reasonably acceptable to Seller and Purchaser.
The Assignment of the Lease shall be subject to, and
effective upon the terms and conditions of the Assignment, 10
business days after Bank South vacates the ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Office following consummation of the merger of Seller and
NationsBank of Georgia, N.A. The provisions of this Section 10.1
shall have a term of 12 months from the date of the Agreement
and shall be subject to an inspection of the Premises by Purchaser
within 45 days of the date of this Agreement upon the terms and
conditions provided for inspection of the Branch Office Real
Property provided in Section 1.10(d) above. If Purchaser
reasonably determines that the ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Office is
subject to any environmental or structural condition that
materially and adversely affects the use of such property for
use as a banking facility, Purchaser shall notify Seller of such
conditions, and if such conditions are not cured or curable by
Landlord or Seller prior to Seller vacating such premises or
if Seller shall notify Purchaser that it will not make any
changes reasonably necessary to cure any actual structural
or environmental defect, Purchaser may, upon prompt written
notice to Seller, terminate the Assignment, but otherwise shall
be obligated to take the Assignment and lease the ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ Office "as is".
(b) None of Seller's deposits or other liabilities, loans or other
assets (except as provided in paragraph (c) immediately below)
at the ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Office shall be sold, assigned
or delivered to or assumed by Purchaser as a result of this
Agreement or the Assignment of the Lease, and Purchaser shall
not use the proposed Assignment in any manner to market its
services to or seek the business of, any of Seller's customers
banking at the ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Office prior to taking
possession of such Office pursuant to the Assignment, provided
nothing in this paragraph shall restrict the Purchaser after
completion of the Assignment from identifying the ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ Office as an office of Purchaser or advertising the
availability of its services at such location, provided further,
in no event shall Purchaser use Seller's names, logos, tradenames
or servicemarks in any such identification advertising or
promotion.
(c) In addition, Seller shall deliver a ▇▇▇▇ of Sale (substantially in
the form of Exhibit 2.2(b)(2) hereof), transferring, for cash paid
by the Seller, free and clear of all liens and encumbrances, those
leasehold improvements, fixtures and trade fixtures of the ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Office set forth on Schedule A to the Assignment
(excluding any such assets designated by Purchaser and/or Seller
in their respective discretion) at their Net Book Value, or
-30-
current fair market value in the case of any art or decorative
works. Such transfers shall will be made "AS IS" and without
any representation or warranty (including, without limitation,
fitness for any purpose) by Seller, and without any recourse
to Seller.
(c) Nothing contained in this Section 10.1 shall affect or limit
the other rights and obligations of the parties hereto, it
being understood and agreed that the transactions contemplated
in this Section 10.1 are separate and distinct from the other
transactions contemplated by this Agreement.
ARTICLE XI
----------
MISCELLANEOUS PROVISIONS
------------------------
Section 11.1. Amendment and Modification.
------------ --------------------------
The parties hereto, by mutual consent of their duly authorized officers,
may amend, modify and supplement this Agreement in such manner as may
be agreed upon by them in writing.
Section 11.2. Waiver or Extension.
------------ -------------------
Except with respect to required approvals of the applicable governmental
authorities, either party, by written instrument signed by a duly
authorized officer, may extend the time for the performance of
any of the obligations or other acts of the other party and may waive
(a) any inaccuracies in the representations and warranties contained
herein or in any document delivered pursuant hereto or (b) compliance
with any of the undertakings, obligations, covenants or other acts
contained herein.
Section 11.3. Assignment.
------------ ----------
This Agreement and all of the provisions hereof shall be binding upon,
and shall inure to the benefit of, the parties hereto and their
permitted assigns, but neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by either of the
parties hereto without the prior written consent of the other.
Section 11.4. Confidentiality.
------------ ---------------
Seller and Purchaser covenant and agree that all information received
by either of them with respect to the business of the other is subject
to a Confidentiality Agreement, and shall not at any time be used
for any business purpose or disclosed by such party to third persons.
This covenant and the Confidentiality Agreement previously executed by
-31-
Purchaser shall survive in full force and effect the consummation of
the transactions contemplated herein or the earlier termination of
this Agreement.
Section 11.5. Addresses for Notices, Etc.
------------ --------------------------
All notices, requests, demands, consents and other communications
provided for hereunder and under the related documents shall be
in writing and mailed (by registered or certified mail, return receipt
requested), telegraphed, telexed, telecopied or personally delivered
(with receipt thereof acknowledged) to the applicable party at the
address indicated below:
If to Seller: ▇▇▇▇▇ ▇▇▇▇
Bank South
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, III
▇▇▇▇▇▇ & Bird
One Atlantic Center
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile (▇▇▇) ▇▇▇-▇▇▇▇
If to Purchaser: Mr. J. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇.
President and Chief Executive Officer
AmeriBank, N.A.
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile (▇▇▇) ▇▇▇-▇▇▇▇
or, as to each party, at such other address as shall be designated by
such party in a written notice to the other party complying as to
delivery with the terms of this Section 11.5.
-32-
Section 11.6. Counterparts.
------------ ------------
This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same
instrument.
Section 11.7. Headings.
------------ --------
The headings of the Sections and Articles of this Agreement
are inserted for convenience only and shall not constitute a part thereof.
Section 11.8. Governing Law; Binding Effect.
------------ -----------------------------
This Agreement shall be governed by, and construed in accordance with,
the laws of the State of Georgia. This Agreement shall bind and inure
to the benefit of the parties and their respective successors and assigns,
provided that Purchaser may not assign its rights or delegate its duties
hereunder without the prior written consent of Seller.
Section 11.9. Expenses.
------------ --------
Except as otherwise specifically provided in this Agreement, all legal,
accounting and other costs and expenses incurred in connection with
the execution, delivery and performance of this Agreement and of
the transactions contemplated hereby shall be borne and paid by
the party incurring such costs and expenses, and neither party
shall be obligated for any cost or expense incurred by the other
party.
Section 11.10. Time is 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.
Section 11.11. Cover, Index and Headings, Etc.
------------- -------------------------------
The cover, index and headings contained in this Agreement are for
convenience and reference only and shall not effect the meaning
or interpretation thereof. The use of the singular in this Agreement
shall be deemed to be or include the plural (and vice-versa), as
appropriate. Wherever the words "include," "including" or any
derivations thereof are used, each shall mean including without
limitation by reason of any enumeration.
-33-
Section 11.12. Broker, Finder, and Investment Banker Fees.
------------- ------------------------------------------
Purchaser and Seller each represent to each other that no broker,
finder, investment banker, or similar person has been employed
by or has acted for and in connection with this Agreement of the
transactions contemplated hereby, except as provided in this paragraph.
Each party agrees to indemnify and hold harmless and defend the other
against all losses, costs, damages and expenses arising out of any
claims or proceedings from fees or commissions of brokers, finders,
investment bankers or similar persons who claim to have been employed
or engaged by such party or entitled to compensation as a result
of the transactions contemplated herein.
Section 11.13. Severability.
------------- ------------
If any provision of this Agreement is invalid or unenforceable, the
balance of this Agreement shall remain in effect.
Section 11.14. No Third Party Beneficiaries.
------------- ----------------------------
Nothing in this Agreement, express or implied including Section 1.6,
is intended to or shall be construed to confer upon or give to any
person not a party hereto any rights or remedies hereunder, whether
as a third party beneficiary or otherwise.
Section 11.15. Entire Agreement.
------------- -----------------
This Agreement and the exhibits and attachments hereto represent
the sole agreement between the parties hereto respecting the
matters addressed herein, and all prior or contemporaneous written or
oral proposals, agreements in principle, representations, warranties
and understandings between the parties are superseded hereby and
merged herein.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their duly authorized officers as of the date first
written above.
BANK SOUTH
By:________________________________
Name:___________________________
Title:__________________________
-35-
AMERIBANK, N.A.
By: /s/ J. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇., President
J. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇., President
-35-
Exhibit 1.1(b)
EXCLUDED ASSETS
Following is a preliminary schedule of the type of assets Bank South
anticipates as Excluded Assets. Additional assets may be added.
1. All 4700 controller equipment at the Branch Office.
2. All computers, computer printers and computer software at the Branch
Office.
3. The telephone equipment at the Branch Office does not constitute
Real Property, Personal Property or Leased Equipment, as defined
in Section 1.1(a) of the Agreement, and therefore is not included
in the list of assets to be transferred to Purchaser under the
express terms of the Agreement; however, Seller will sell the
telephone equipment to Purchaser at its net book value.
4. Other Excluded Assets may be listed on this schedule
Exhibit 1.6(c)
SEVERANCE BENEFITS
Attached is a description of the severance benefits to be paid by
Purchaser to employees at the Branch Office who are terminated without
cause during the 12 month period following the Effective Time.
Exhibit 2.2(b)(2)
FORM OF ▇▇▇▇ OF SALE
FORM OF
▇▇▇▇ OF SALE
------------
In accordance with Section 2.2(b)(2) the Branch Purchase
and Assumption Agreement (the "Purchase Agreement"), dated as of
October 18, 1995, by and between BANK SOUTH ("Bank South"), a state
member bank organized and existing under the laws of the State of
Georgia, and AmeriBank, N.A. ("Purchaser"), a bank organized and
existing under the laws of the United States, and in consideration
of the transactions contemplated thereby, Bank South has executed
and delivered this ▇▇▇▇ of Sale to Purchaser. Unless otherwise
defined herein, all capitalized terms used in this ▇▇▇▇ of Sale
shall have the meanings attributed to them in the Purchase Agreement.
(1) Bank South does hereby sell, transfer, assign, convey
and grant to Purchaser, all of Bank South's right, title and interest
in and to all of the following assets (collectively, the "Acquired
Assets"):
(i) All furniture, fixtures, furnishings, leasehold
improvements, office supplies, equipment and other personal
property owned or leased by Bank South and located in or upon
the Branch Office as of the date hereof acquired by Purchaser
(excluding such items excluded pursuant to such Section 1.1(b))
and as further described on Appendix A attached hereto;
(ii) All loans secured by Deposit Liabilities ("Account Loans")
at the Branch Office and acquired by Purchaser pursuant to Section
1.3(a) of the Purchase Agreement, including, without limitation,
the Account Loans described on Appendix B attached hereto, together
with any or all collateral securing such Account Loans;
(iii) Such overdrafts related to Deposit Liabilities ("Overdraft
Loans") domiciled at the Branch Office not excluded by the Purchase
Agreement and to be acquired by Purchaser as described on Appendix C
attached hereto;
(iv) Such other Loans (as defined in the Purchase Agreement)
domiciled at the Branch Office, as described on Appendix D attached
hereto;
(v) All Cash Assets (as defined in the Purchase Agreement)
domiciled at the Branch Office;
(vi) All Records (as defined in the Purchase Agreement) relating
to the business and operations of the Branch Office.
(2) Bank South hereby represents and warrants that, except as
indicated on Schedule A hereto, it has good and marketable title to
the Acquired Assets free and clear of all Liens.
(3) Bank South covenants and agrees to warrant and defend the
sale, transfer, assignment, conveyance and grant of the Acquired Assets
hereby made against all persons whomsoever to the full extent of its
representations, warranties, covenants and agreements contained in the
Purchase Agreement.
(4) Bank South does hereby covenant and agree to take all
steps necessary to establish the record of Purchaser's title to and
possession of the Acquired Assets sold, transferred, assigned, conveyed
and granted by Bank South pursuant to this ▇▇▇▇ of Sale. The terms of
the Purchase Agreement, including but not limited to, Bank South's
representations and warranties concerning the Acquired Assets being
transferred pursuant to this ▇▇▇▇ of Sale and the obligations of Bank
South under Section 8.1 of the Agreement, are incorporated herein
by reference.
(5) Bank South hereby irrevocably constitutes and appoints
Purchaser, its successors and assigns, the true and lawful attorneys
of Bank South, with full power of substitution, in the name of Bank
South or otherwise, and on behalf of and for the benefit of Purchaser,
its successors and assigns: (a) to demand and receive from time to
time any and all of the Acquired Assets, whether tangible or intangible,
hereby conveyed, transferred and delivered or intended to be so; (b) to
give receipts, releases and acquittances for or in respect of the same
or any part thereof; (c) from time to time to institute and prosecute in
the name of Bank South or otherwise, but for the benefit of Purchaser, any
and all proceedings at law, in equity or otherwise, which Purchaser, its
successors or assigns may deem proper to assert with respect to, or enforce,
any claim, title or right hereby transferred and assigned or intended so
to be; (d) subject to the conditions and limitations contained in the
Purchase Agreement, to defend and compromise any and all actions, suits
or proceedings in respect of any of the Acquired Assets hereby assigned or
transferred or intended so to be that Purchaser, its successors and
assigns shall deem desirable; and (e) from time to time to endorse and
deposit in the name of Bank South, or otherwise, but for the benefit of
Purchaser, any and all checks, drafts or other instruments of payment
received by Purchaser on and after the date hereof, with respect to
the Acquired Assets assigned and transferred, or intended so to be.
Bank South hereby declares that the appointment made and the powers
hereby granted with respect to the Acquired Assets are coupled with
an interest and are and shall be perpetual and irrevocable and
shall not be terminated by any act of Bank South or by the occurrence
of any other event or for any other reason.
-2-
IN WITNESS WHEREOF, Bank South has executed this ▇▇▇▇ of Sale
as of the ____ day of________, 1996.
BANK SOUTH
By:_________________________________
Name:
Title:
ATTEST:
By:___________________________
Name:
Title:
[BANK SEAL]
Signed, sealed and delivered on
the ____ day of ________, 1996,
in the presence of:
_____________________________________
Notary Public
My Commission Expires: ______________
[NOTARY SEAL]
-3-
Exhibit 2.2(b)(3)
Form of Assumption Agreement
ASSUMPTION AGREEMENT
In accordance with Section 2.2(b)(3) of the Branch Purchase and
Assumption Agreement (the "Purchase Agreement"), dated as of October 18,
1995, by and between BANK SOUTH ("Bank South"), a state member bank organized
and existing under the laws of the State of Georgia, and AmeriBank, N.A.
("Purchaser"), a bank organized and existing under the laws of the
United States, and in consideration of the transactions contemplated
thereby, Purchaser has executed and delivered this Assumption Agreement
(this "Agreement") to Bank South. Unless otherwise defined herein, all
capitalized terms used in this Agreement shall have the meanings attributed
to them in the Purchase Agreement.
Purchaser hereby assumes and agrees to pay the Liability and/or
perform the obligations of Bank South with respect to:
(a) All Liability arising from and after the date hereof
under any lease Contract covering any Branch Office as further
described on Appendix A attached hereto;
(b) All Liability arising from and after the date hereof
under any equipment or other leases, together with any maintenance
agreements, pertaining to all items of Personal Property that are
acquired by Purchaser pursuant to subparagraph (a) of Section 1.1 of
the Purchase Agreement as further described on Appendix B attached hereto;
(c) All Liability arising from and after the date hereof under
any Loans domiciled at the Branch Office and acquired by Purchaser
pursuant to Section 1.4 of the Purchase Agreement, including, without
limitation, the Loans described on Appendix C to the ▇▇▇▇ of Sale of
Bank South dated of even date herewith;
(d) All Liability arising from and after the date hereof to
provide such services as are being provided to customers at the Branch
Office by Bank South as of the date of the Purchase Agreement which
are incidental to the Deposits domiciled at the Branch Office (including,
but not limited to, safe deposit box services and note collections
for customers);
(e) All obligations of Bank South arising from and after the
date hereof under those service agreements pertaining to the Branch
Office described in Appendix C attached hereto; and
(f) All Deposits, excluding uninsured notes, Escheatable
Accounts, Repurchase Agreements, excluded Brokered Accounts
designated by Purchaser, and excluded ▇▇▇▇▇ Accounts.
Notwithstanding any provision to the contrary, Purchaser
does not hereby assume and shall have no Liability for any Liabilities
of Bank South of whatsoever kind or nature other than as specifically
set forth herein or in the Purchase Agreement. Bank South shall retain
and promptly discharge all such other Liabilities, and shall promptly
reimburse Purchaser upon demand for, any and all claims and losses relating
to such other Liabilities.
This Assumption Agreement shall not create in any third parties
(including, without limitation, account holders) (i) any rights or remedies
against Purchaser which such parties did not have against Bank South prior
to the execution and delivery of this Assumption Agreement with respect to the
Liabilities specifically assumed herein or (ii) any claims against Purchaser
with respect to the Deposits other than for payment of principal and accrued
interest as of the date hereof, and interest hereafter accrued in accordance
with the terms of such accounts and agreements.
IN WITNESS WHEREOF, Purchaser has caused this Assumption Agreement
to be signed, sealed and delivered by its duly authorized officers as of
the ____ day of _______________, 1996.
AMERIBANK, N.A.
ATTEST: By:____________________________
J. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇.
President
________________________
Secretary
[BANK SEAL]
Acknowledged and agreed to
this ____ day of _______, 1996:
BANK SOUTH
By:_____________________________
Name:
Title:
-2-
Exhibit 2.2(b)(14)
Form of Closing Statement
CLOSING STATEMENT (1)
-----------------
Deposits (including unpaid accrued interest),
net of uninsured notes, Escheatable
Accounts, Repurchase Agreements, Excluded
Brokered Accounts, and Excluded ▇▇▇▇▇ Accounts . . . . . . . . . . . $____________
Miscellaneous Liabilities . . . . . . . . . . . . . . . . . . . . . . . ____________
Pro rata portion of real estate taxes . . . . . . . . . . . . . . . . . ____________
Other pro rated items . . . . . . . . . . . . . . . . . . . . . . . . . ____________
Real and Personal Property . . . . . . . . . . . . . . . . . . . . . . (____________)
Account Loans, Overdraft Loans, Other Loans, and unpaid
accrued interest thereon . . . . . . . . . . . . . . . . . . . . . . (____________)
Cash Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (____________)
Premium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (____________)
Cash consideration paid on Closing Date (2) . . . . . . . . . . . $____________
Agreed to as of the ____ day of ___________, 1996:
BANK SOUTH
By:___________________________________
Name:
Title:
AMERIBANK, N.A.
By:___________________________________
J. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇.
President
----------------------------
(1) Delivered pursuant to Section 2.2(b)(14) of the Branch Purchase
Agreement, dated as of October 18, 1995 (the "Agreement"), between
Bank South ("Bank South") and AmeriBank, N.A. ("Purchaser"), based
upon figures calculated as of the close of business on __________,
1996. The parties agree that, pursuant to Section 2.3 of the Agreement,
the parties will make the necessary adjustments to the amounts set
forth herein in order to accurately reflect the appropriate balances
as of the Closing Date.
(2) To be paid as provided in the Agreement.
