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EXHIBIT 2
BRANCH PURCHASE AND ASSUMPTION AGREEMENT DATED JUNE 24, 2002
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BRANCH PURCHASE AND ASSUMPTION AGREEMENT
between
FIRST SOUTHERN BANK
and
BANK INDEPENDENT
0000 XXXX XXXXX, XXXXXXXX, XXXXXXX
AND
000 XXXX XXXXXX, XXXXXXXXXXX, XXXXXXX
June 24, 2002
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TABLE OF CONTENTS
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ARTICLE ONE - PURCHASE AND SALE OF ASSETS AND ASSUMPTION OF
LIABILITIES.............................................................................1
Section 1.01. Purchase of Assets..................................................1
(a) Books and Records...................................................1
(b) Real Property.......................................................1
(c) Personal Property...................................................1
(d) Loans...............................................................2
(e) Assumed Contracts...................................................2
(f) Cash on Hand........................................................2
Section 1.02. Assumption of Liabilities...........................................2
(a) Deposit Liabilities.................................................2
(b) Assumed Contracts...................................................3
(c) Liabilities Not Assumed by Buyer....................................3
Section 1.03. Names and Marks.....................................................3
ARTICLE TWO - CLOSING, CALCULATION OF PURCHASE PRICE AND CLOSING
DELIVERIES..............................................................................3
Section 2.01. The Closing.........................................................3
Section 2.02. The Closing Date....................................................3
Section 2.03. Retirement Accounts.................................................4
Section 2.04. Calculation and Payment of Purchase Price...........................4
Section 2.05. Allocation of Purchase Price........................................6
Section 2.06. Prorations..........................................................6
Section 2.07. Closing Deliveries..................................................7
ARTICLE THREE - REPRESENTATIONS AND WARRANTIES OF SELLER............................9
Section 3.01. Organization........................................................9
Section 3.02. Authorization.......................................................9
Section 3.03. Non-Contravention...................................................9
Section 3.04. Compliance with Law.................................................9
Section 3.05. Regulatory Enforcement Actions......................................9
Section 3.06. Litigation.........................................................10
Section 3.07. Title to Real Property and Other Assets............................10
Section 3.08. Environmental Matters..............................................10
Section 3.09. Brokerage..........................................................11
Section 3.10. Loans and Deposits.................................................11
Section 3.11. Employee Information...............................................11
Section 3.12. RA Documentation...................................................11
Section 3.13. Statements True and Correct........................................11
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ARTICLE FOUR - REPRESENTATIONS AND WARRANTIES OF BUYER............................11
Section 4.01. Organization.......................................................11
Section 4.02. Authorization......................................................12
Section 4.03. Non-Contravention..................................................12
Section 4.04. Consents to Transaction............................................12
Section 4.05. Litigation.........................................................12
Section 4.06. Brokerage..........................................................12
Section 4.07. Statements True and Correct........................................12
ARTICLE FIVE - AGREEMENTS OF THE SELLER...........................................13
Section 5.01. Business in Ordinary Course........................................13
Section 5.02. Breaches...........................................................14
Section 5.03. Consents to Assumed Contracts......................................14
Section 5.04. Title Commitment...................................................14
Section 5.05. Consummation of Agreement..........................................14
Section 5.06. Access to Information..............................................15
Section 5.07. Inspection of Real Property........................................15
ARTICLE SIX - AGREEMENTS OF THE BUYER............................................15
Section 6.01. Regulatory Approvals...............................................15
Section 6.02. Breaches...........................................................16
Section 6.03. Consummation of Agreement..........................................16
Section 6.04. Access to Information..............................................16
ARTICLE SEVEN - CONDITIONS PRECEDENT TO THE BRANCH PURCHASE
AND ASSUMPTION.........................................................................16
Section 7.01. Conditions to Seller's Obligations.................................16
Section 7.02. Conditions to Buyer's Obligations..................................16
ARTICLE EIGHT - TERMINATION OR ABANDONMENT.........................................18
Section 8.01. Mutual Agreement...................................................18
Section 8.02. Breach of Representations or Agreements............................18
Section 8.03. Failure of Conditions..............................................18
Section 8.04. Approval Denial....................................................18
Section 8.05. Automatic Termination..............................................19
ARTICLE NINE - TRANSITIONAL AND POST-CLOSING MATTERS..............................19
Section 9.01. Notification to Branch Office Customers............................19
Section 9.02. Payment of Instruments.............................................20
Section 9.03. Statements.........................................................20
Section 9.04. Limited Correspondent..............................................20
Section 9.05. Uncollected Items..................................................20
Section 9.06. Loans and Deposits.................................................20
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Section 9.07. ACH................................................................20
Section 9.08. Noncompetition/Nonsolicitation.....................................21
Section 9.09. Access to Records..................................................21
Section 9.10. Information Reporting..............................................21
Section 9.11. Transition.........................................................21
ARTICLE TEN - INDEMNIFICATION....................................................22
Section 10.01. Indemnification of Buyer...........................................22
Section 10.02. Indemnification of Seller..........................................22
Section 10.03. Procedure and Limitations..........................................22
ARTICLE ELEVEN - GENERAL............................................................23
Section 11.01. Confidential Information...........................................23
Section 11.02. Publicity..........................................................23
Section 11.03. Return of Documents................................................23
Section 11.04. Notices............................................................24
Section 11.05. Expenses...........................................................25
Section 11.06. Liabilities........................................................25
Section 11.07. Nonsurvival of Representations, Warranties and Agreements..........25
Section 11.08. Entire Agreement...................................................25
Section 11.09. Headings and Captions..............................................25
Section 11.10. Waiver, Amendment or Modification..................................25
Section 11.11. Rules of Construction..............................................25
Section 11.12. Counterparts.......................................................26
Section 11.13. Successors and Assigns.............................................26
Section 11.14. Governing Law; Assignment..........................................26
Section 11.15. Permitted Exceptions...............................................26
Section 11.16. Time of Essence....................................................26
Schedule A - Legal Description of Real Property
Schedule B - Description of Personal Property
Schedule C - Loans
Schedule D - Deposit Liabilities
Schedule E - Assumed Contracts
Exhibit 1 - Form of Assignment and Assumption of Deposit Liabilities Agreement
Exhibit 2 - Form of Assignment and Assumption of Contracts Agreement
Exhibit 3 - Form of Xxxx of Sale
Exhibit 4 - Form of Assignment, Transfer and Appointment of Successor Trustee
for XXX Accounts
Exhibit 5 - Form of Limited Power of Attorney
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BRANCH PURCHASE AND ASSUMPTION AGREEMENT
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This BRANCH PURCHASE AND ASSUMPTION AGREEMENT (this "Agreement") is
made and executed as of the 24th day of June, 2002, by and between First
Southern Bank, an Alabama banking corporation with its main office located in
Florence, Alabama ("Seller"), and Bank Independent, an Alabama banking
corporation with its main office located in Sheffield, Alabama ("Buyer").
W I T N E S S E T H:
WHEREAS, Seller owns and operates the branch banking offices located at
0000 Xxxx Xxxxx, Xxxxxxxx, Xxxxxxx (the "Mall Branch"), and 000 Xxxx Xxxxxx,
Xxxxxxxxxxx, Xxxxxxx (the "Rogersville Branch") (collectively, the "Branch
Offices" and individually, a "Branch Office"); and
WHEREAS, Seller desires to sell and Buyer desires to acquire the Branch
Offices, and, in that regard, Seller desires to sell and the Buyer desires to
purchase and acquire certain assets related thereto maintained at the Branch
Offices; and
WHEREAS, Seller desires to transfer and the Buyer desires to assume
certain deposit accounts maintained at or for the Branch Offices and certain
other liabilities pertaining to the operations thereof.
NOW, THEREFORE, in consideration of the premises and the mutual terms
and provisions set forth in this Agreement, the parties agree as follows:
ARTICLE ONE
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PURCHASE AND SALE OF ASSETS AND ASSUMPTION OF LIABILITIES
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Section 1.01. Purchase of Assets. Upon the terms and subject to the
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conditions and representations set forth herein, Seller shall sell, convey,
assign and transfer to Buyer, and Buyer shall purchase and accept from Seller,
all right, title and interest of Seller in and to the following assets
(collectively, the "Assets") as of the close of business on the Closing Date (as
defined in Section 2.02 below):
(a) Books and Records. All books, records and files directly
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relating to the Assets and the Assumed Liabilities (as defined in Section 1.02
below) being transferred to Buyer hereunder (collectively, the "Records").
(b) Real Property. All of Seller's interest in the real estate
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located at 0000 Xxxx Xxxxx, Xxxxxxxx, Xxxxxxx, and 000 Xxxx Xxxxxx, Xxxxxxxxxxx,
Xxxxxxx, at which locations the Branch Offices are operated, more particularly
described in SCHEDULE A to this Agreement, including the buildings and other
improvements thereto (collectively, the "Real Property").
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(c) Personal Property. The fixtures and improvements located
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at the Branch Offices as of the close of business on the Closing Date, together
with sign structures, and the ATM located in the Foodland grocery store in
Rogersville, Alabama (collectively, the "Personal Property").
(d) Loans. Such loans of Seller attributed to either of the
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Branch Offices as may be specifically accepted by the Buyer. A list of the loans
attributed to the Branch Offices as of May 31, 2002 is attached hereto as
SCHEDULE C. SCHEDULE C shall be updated as of the Closing Date to reflect the
final loans to be purchased under this Agreement. The total loans to be
purchased by Buyer under this Agreement shall have an aggregate principal
balance as of the Closing Date of at least $9,000,000, but not more than
$10,000,000, the final amount to be at Buyer's discretion. The loans to be
purchased shall be selected from (i) the Rogersville Branch Office's
commercial/installment loan portfolio; (ii) Seller's fixed rate mortgage
portfolio; and (iii) to the extent that the loans selected in the preceding
subparagraphs (i) and (ii) are less than $9,000,000, additional loans shall be
selected from the Seller's commercial/installment loan portfolio at its main
office. The loans to be purchased hereunder, other than those from the Seller's
fixed rate mortgage portfolio and the Rogersville Branch Office's
commercial/installment loan portfolio, will have a weighted average annual yield
of not more than 7.5%, unless the Seller otherwise agrees to a higher weighted
average annual yield. The loans to be purchased under this subparagraph 1.01(d)
shall be referred to herein as the "Loans". In order to purchase Loans pursuant
to this Section, Buyer shall, within thirty (30) days of the date hereof,
provide written notice to Seller of Buyer's desire to purchase Loans. The
written notice shall provide for the specific Loans that Buyer desires to
purchase. The Loans to be purchased by Buyer shall be as mutually agreed by
Seller and Buyer, subject to the terms of this Section 1.01(d). Any such Loans
that Buyer does not agree to purchase shall remain as an asset of Seller.
Notwithstanding the foregoing, it is agreed by Seller and Buyer that "Loans":
(i) shall not include any Loan that is repaid in full as to principal and
interest prior to the Closing Date; (ii) shall not include any Loan that is
classified as "loss", "doubtful" or "substandard" as of the Closing Date; and
(iii) shall include all deposit-related overdrafts, including overdrafts
pursuant to an overdraft protection plan, if any.
(e) Assumed Contracts. Seller's rights under, or created
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by, the Assumed Contracts (as defined in Section 1.02(b) below).
(f) Cash on Hand. All teller working cash, xxxxx cash and
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vault cash at the Branch Office as of the close of business on the Closing Date
(the "Cash on Hand").
Section 1.02. Assumption of Liabilities. Upon the terms and subject to
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the conditions set forth herein, Seller shall transfer and assign to Buyer, and
Buyer shall assume from Seller and agree to pay, perform and discharge, by
documentation reasonably satisfactory as to form and substance to Seller and
Buyer, as of the close of business on the Closing Date, the following
liabilities, and none other (collectively, the "Assumed Liabilities"):
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(a) Deposit Liabilities. All deposit liabilities maintained at
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the Branch Offices, in accordance with the terms of the agreements pertaining to
such deposits, as shown on the books and records of Seller as of the close of
business on the Closing Date, including accrued but unpaid interest thereon
through the Closing Date, except as provided in Section 2.03(b) hereof (the
"Deposits" or "Deposit Liabilities"), which such Deposit Liabilities as they
existed on May 31, 2002, are identified on SCHEDULE D hereto. As used herein,
the term "deposit liabilities" shall include all of the deposit products offered
by Seller from the Branch Offices, including, without limitation, passbook
accounts, statement accounts, checking accounts, money market accounts, and
certificates of deposit.
(b) Assumed Contracts. The obligations and liabilities of
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Seller arising from and after the Closing Date under any and all contracts and
leases relating to the operation or maintenance of the Branch Offices that are
assignable by Seller to Buyer, which contracts and leases as of the date hereof
are identified on SCHEDULE E hereto (collectively, the "Assumed Contracts").
(c) Liabilities Not Assumed by Buyer. Other than those
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liabilities specifically assumed in Sections 1.02(a), 1.02(b) and 2.03 hereof,
Buyer shall not assume any liabilities of Seller, whether known or unknown,
disclosed or undisclosed, contingent or otherwise, which have arisen or may
arise or be established in connection with the conduct of business at the Branch
Offices prior to the Closing Date (the "Excluded Liabilities").
Section 1.03. Names and Marks. Seller is not selling, assigning,
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conveying, transferring or delivering, nor shall Buyer acquire, any rights or
interest in or to: (a) the name "First Southern Bank" or any derivation thereof,
or (b) any logos, service marks or trademarks, advertising materials or slogans
or any similar items used by Seller in connection with its business, whether or
not such is or was copyrighted or registered. Immediately following the Closing
on the Closing Date, Seller shall remove from the Branch Offices all signs,
logos and other insignia identifying or identified with Seller. No signs, logos
or insignia identifying or identified with Buyer may be displayed to the public
until after the Closing, however, Buyer and Seller shall cooperate to allow
Buyer to start installation of signs at the premises within three days prior to
the Closing Date. On and after the Closing Date, Buyer shall not use the name or
service xxxx of Seller in any manner in connection with the operation of the
Branch Offices, except in accordance with the provisions of Section 9.01 hereof.
No activity conducted by Buyer on or after the Closing Date shall state or imply
that Seller is in any way involved as a partner, joint venturer or otherwise in
the business of Buyer.
ARTICLE TWO
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CLOSING, CALCULATION OF PURCHASE PRICE AND CLOSING DELIVERIES
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Section 2.01. The Closing. The closing of the purchase and assumption
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transaction contemplated by this Agreement (the "Closing") shall take place at
the main offices of Seller, or at such other location as the parties may agree,
at 10:00 a.m. Central Time on the Closing Date described in Section 2.02 of this
Agreement.
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Section 2.02. The Closing Date. The Closing shall take place on a date
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mutually agreed upon, in writing, by the parties, but in any case, on or before
the thirty-first (31st) day following the receipt of all approvals from any
regulatory authorities having jurisdiction over the transaction contemplated
hereby, and the satisfaction of all conditions and the lapse of all applicable
waiting periods associated therewith. The Seller and Buyer acknowledge that it
is their intent to have the Closing Date set on August 9, 2002, assuming that
all conditions precedent to the consummation of the transaction set forth in
Article SEVEN hereof, including receipt of all necessary regulatory approvals,
are met as of that date. The purchase and assumption transaction contemplated by
this Agreement shall become effective at the close of business on the day of the
Closing (the "Closing Date").
Section 2.03. Retirement Accounts. At the Closing, Seller shall resign
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as trustee and custodian with respect to any individual retirement account ("XXX
Account") as to which Seller is trustee or custodian and as to which one or more
of the assets included therein is a deposit included within the Deposits
transferred to Buyer on the Closing Date. At the Closing, Seller shall designate
or appoint Buyer as successor trustee or custodian under each such XXX Account.
(a) Buyer covenants and agrees that it will, following its
designation or appointment as successor trustee or custodian under the XXX
Accounts, promptly and faithfully perform, fulfill, and discharge each of the
obligations required to be performed by the trustee or custodian with respect to
such accounts pursuant to law, or pursuant to the governing documents
establishing such XXX Account.
(b) If an individual depositor holding an XXX Account refuses
to accept the designation or appointment of Buyer as successor trustee or
custodian with respect to any such XXX Account, Buyer shall promptly so inform
Seller, and none of the deposits contained in such XXX Account shall be treated
as Deposit Liabilities hereunder, but shall remain the liability and obligation
of Seller.
Section 2.04. Calculation and Payment of Purchase Price. The
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calculation and payment of the Purchase Price (defined herein) shall be made as
follows:
(a) Seller shall pay to Buyer an amount of cash (the
"Purchase Price") equal to:
(i) the aggregate amount of principal and accrued
interest of the Deposit Liabilities; plus
(ii) the net amount of any prorated items required by
Section 2.06 hereof owed by Seller to Buyer;
minus
(iii) the Acquisition Value (defined herein) of the
Assets (exclusive of the Cash on Hand); minus
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(iv) the amount of Cash on Hand; minus
(v) the net amount of any prorated items required by
Section 2.06 hereof owed by Buyer to Seller;
minus
(vi) the "Premium", which shall be equal to 7% of the
Deposits at Closing (exclusive of any public
funds and certificates of deposit of more than
$100,000), provided that such Premium shall not
exceed $1,540,000. For purposes of this paragraph
2.04(a)(vi), the calculation of the Premium shall
be based on the fifteen (15) business day average
of the Deposits ending on the Closing Date.
(b) On the Closing Date, Seller shall transfer to Buyer, by
wire transfer in immediately available funds to an account designated by Buyer,
an amount which Seller estimates to be the amount of the Purchase Price, which
estimated amount shall be based on the applicable balances as of the close of
business on the second business day prior to the Closing Date (the "Estimated
Purchase Price").
(c) On the fifteenth (15th) business day after the Closing
Date or such earlier date as may be agreed to in writing by the parties (the
"Adjustment Payment Date"), an adjustment payment (the "Adjustment Payment")
shall be made either by Seller to Buyer or by Buyer to Seller, as appropriate,
so as to correct any discrepancy between the amount of the Estimated Purchase
Price paid under the preceding paragraph and the Purchase Price calculated in
accordance with this Section 2.04. Seller shall provide, at Buyer's request, a
closing statement which reflects the calculation of the Adjustment Payment
relative to the Estimated Purchase Price. The Adjustment Payment due to either
party pursuant to this paragraph shall be paid to such party on the Adjustment
Payment Date by the other party by wire transfer in immediately available funds
to an account designated by the payee party.
(d) For purposes of this Agreement, the "Acquisition Value"
of the Assets shall be the sum of the following:
(i) the aggregate outstanding principal and earned
but unpaid interest on the purchased Loans as of
the close of business on the Closing Date; plus
(ii) $325,000 for all of the Real Property and
Personal Property (including the ATM located
at the Foodland grocery store in Rogersville,
Alabama) associated with the Rogersville Branch
Office;
(iii) the appraised value of the Real Property
associated with the Mall Branch Office, which
appraised value shall be determined by an MAI
certified real estate appraiser that performs
the majority of its work in
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Colbert and/or Lauderdale County, Alabama, such
appraiser to be selected by Seller by written
notice to the Buyer within five (5) days of the
date of this Agreement provided, that if Buyer
chooses to obtain another MAI certified appraisal
of the Real Property associated with the Mall
Branch Office, Buyer shall give notice to Seller
of Buyer's desire to obtain a second appraisal
within five (5) days after receiving the
appraisal prepared by the appraiser selected by
Seller. Seller shall provide the appraisal
obtained by it to Buyer within fifteen (15) days
from the date hereof. If Buyer chooses to obtain
a second appraisal, Buyer shall provide the
appraisal obtained by it to Seller within thirty
(30) days from the date hereof, in which event,
the appraised value of the Real Property
associated with the Mall Branch Office shall be
the average of the appraised values determined
by the two appraisers; plus
(iv) Twenty Thousand Dollars ($20,000.00) for the
Personal Property associated with the Mall Branch
Office.
Section 2.05. Allocation of Purchase Price. The Purchase Price, as
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adjusted in accordance with Section 2.04(c) above, and the liabilities assumed
by Buyer pursuant to Section 1.02 hereof shall be allocated on an allocation
schedule to be agreed upon by Buyer and Seller within forty-five (45) days after
the Closing Date. The allocation is intended to comply with the allocation
method required by Section 1060 of the Internal Revenue Code of 1986, as
amended. The parties shall: (i) each report the federal, state and local and
other tax consequences of the purchase and assumption contemplated hereby
(including the filing of Internal Revenue Service Form 8594) in a manner
consistent with such allocation schedule; and (ii) take no position in any tax
filing, return, proceeding, audit or otherwise which is inconsistent with such
allocation.
Section 2.06. Prorations. The parties intend that Seller shall
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operate for its own account the business conducted at the Branch Offices until
the close of business on the Closing Date, and that the Buyer shall operate such
business for its own account after the Closing Date. Thus, except as otherwise
specifically provided in this Agreement, items of expense directly attributable
to the operation of the Branch Offices (which shall not include any general
overhead expenses of Seller) shall be prorated as of the close of business on
the Closing Date, whether or not such adjustment would normally be made as of
such time, including, without limitation, (i) telephone, electric, gas, water,
and other utility services (to the extent it is not possible to transfer such
services into the name of Buyer as of the Closing Date), (ii) taxes associated
with the Real Property and Personal Property, (iii) assessments (including,
without limitation, assessments attributable to FDIC deposit insurance, provided
that Buyer's portion of the prepaid FDIC deposit insurance assessment shall be
based on the assessment rate charged Buyer by the Bank Insurance Fund for the
relevant period), (iv) payments due on Assumed Contracts, and (v) similar
expenses related to the Assets transferred hereunder. To the extent any such
item has been prepaid by Seller for a period extending beyond the Closing Date,
there shall be a proportionate adjustment in favor of Seller.
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Section 2.07. Closing Deliveries. At the Closing, Seller shall
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deliver to Buyer:
(i) a Certificate or Certificates signed by an
appropriate officer of Seller stating that (A)
each of the representations and warranties
contained in Article Three is true and correct
in all material respects at the time of the
Closing with the same force and effect as if
such representations and warranties had been
made at Closing, and (B) all of the conditions
set forth in Sections 7.02(b) and 7.02(d),
insofar as Section 7.02(d) pertains to approvals
required to be obtained by Seller, have been
satisfied or waived as provided therein;
(ii) a certified copy of the resolutions of the Board
of Directors of Seller authorizing the execution
of this Agreement and the consummation of the
purchase and assumption transaction contemplated
hereby;
(iii) evidence of payment to Buyer, by wire transfer
in immediately available funds to an account
designated by Buyer, of the Estimated Purchase
Price;
(iv) an executed Assignment and Assumption of Deposit
Liabilities Agreement in substantially the form
set forth in EXHIBIT 1 hereto;
(v) an executed Assignment and Assumption of
Contracts Agreement in substantially the form
set forth in EXHIBIT 2 hereto;
(vi) an executed Xxxx of Sale in substantially the
form set forth in EXHIBIT 3 hereto;
(vii) a special warranty deed or deeds (subject to
Permitted Exceptions, as such term is defined in
Section 11.15 hereof), conveying the Real
Property to the Buyer, together with a
commitment or commitments for title insurance
with respect to the Real Property;
(viii) an executed Assignment, Transfer and Appointment
of Successor Trustee for XXX Accounts in
substantially the form set forth in EXHIBIT 4;
(ix) an executed Limited Power of Attorney in
substantially the form set forth in EXHIBIT 5;
(x) such other bills of sale, assignments, and other
instruments and documents as counsel for Buyer
may reasonably require as necessary
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or desirable for transferring, assigning and
conveying to Buyer good, marketable and
insurable title to the Assets;
(xi) listings of the Deposit Liabilities as of the
the Closing Date (the "Deposit Listings") on
magnetic tape or utilizing such other method of
information transfer as the parties may mutually
agree, which Deposit Listings shall include, for
each account, the account number, outstanding
principal balance, and accrued interest; and
(xii) such Records as are capable of being delivered
to Buyer, which Records (other than the current
promissory notes related to the Loans which
shall be originals), may, upon the mutual
consent of both Buyer and Seller, be delivered
by delivery of imaged, photocopies or other non-
original and non-paper media in lieu of original
copies.
(b) At the Closing, Buyer shall deliver to Seller:
(i) a Certificate or Certificates signed by an
appropriate officer of Buyer stating that (A)
each of the representations and warranties
contained in Article Four is true and correct in
all material respects at the time of the Closing
with the same force and effect as if such
representations and warranties had been made at
Closing, and (B) all of the conditions set forth
in Sections 7.01(b) and 7.01(d), insofar as
Section 7.01(d) pertains to approvals required
to be obtained by Buyer, have been satisfied or
waived as provided therein;
(ii) a certified copy of the resolutions of the Board
of Directors of Buyer authorizing the execution
of this Agreement and the consummation of the
purchase and assumption transaction contemplated
hereby;
(iii) an executed Assignment and Assumption of Deposit
Liabilities Agreement in substantially the form
set forth in EXHIBIT 1 hereto;
(iv) an executed Assignment and Assumption of
Contracts Agreement in substantially the form
set forth in EXHIBIT 2 hereto;
(v) an executed Assignment, Transfer and Appointment
of Successor Trustee for XXX Accounts in
substantially the form set forth in EXHIBIT 4
hereto; and
(vi) such other documents and instruments as counsel
for Seller may reasonably require as necessary
or desirable to confirm Buyer's
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assumption of the Assumed Liabilities as of the
close of business on the Closing Date.
ARTICLE THREE
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REPRESENTATIONS AND WARRANTIES OF SELLER
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Seller hereby makes the following representations and warranties:
Section 3.01. Organization. Seller is an Alabama banking corporation
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duly organized, validly existing and in good standing under the laws of the
State of Alabama, and has the corporate power to carry on its business as the
same is being conducted at the Branch Offices and, subject to appropriate
regulatory approvals, to effect the transactions contemplated herein.
Section 3.02. Authorization. All necessary corporate actions have been
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taken to authorize the execution of this Agreement on Seller's behalf by
Seller's duly authorized officers and the performance by Seller of its
obligations hereunder. This Agreement has been duly and validly executed and
delivered by Seller and constitutes a legal, valid and binding obligation of
Seller, enforceable against Seller in accordance with its terms, subject to
bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally and to general principles of equity,
whether considered in a proceeding at law or in equity.
Section 3.03. Non-Contravention. The execution and delivery of this
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Agreement by Seller do not, and, subject to the receipt of all required
approvals and consents, including but not limited to regulatory approvals, the
consummation of the transaction contemplated by this Agreement will not,
constitute a breach or violation of or default under any law, rule, regulation,
judgment, order, governmental permit or license, agreement, indenture, or
instrument to which Seller is a party, or by which it or any of its assets or
property is bound, which breach, violation, or default would have a material
adverse effect on the business or properties of the Branch Offices after the
Closing Date.
Section 3.04. Compliance with Law. Seller has all licenses, franchises,
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permits and other governmental authorizations that are legally required to
enable it to conduct its business at the Branch Offices as presently conducted
in all material respects.
Section 3.05. Regulatory Enforcement Actions. Seller is not subject to,
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and has not received any notice or advice that it may be subject to, any order,
agreement, memorandum of understanding or other regulatory enforcement action or
proceeding with or by any federal or state agency charged with the supervision
or regulation of banks or engaged in the insurance of deposits of banks or any
other governmental agency having supervisory or regulatory authority with
respect to Seller which could have a material adverse effect on the operation of
the Branch Offices after the Closing Date.
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Section 3.06. Litigation. There is no litigation, claim or other
------------ ----------
proceeding pending or, to the knowledge of Seller, threatened, against Seller
arising out of Seller's operation of the Branch Offices, materially affecting
any of the Assets or Assumed Liabilities, or materially affecting the ability of
Seller to carry out this Agreement or any of the transactions contemplated
hereby.
Section 3.07. Title to Real Property and Personal Property. As to the
------------ ---------------------------------------------
Real Property, Seller is the owner of a fee simple interest in the Real
Property, and has good and marketable title to the Real Property, free and clear
of any liens, mortgages, pledges or other security interests and subject only to
Permitted Exceptions and those exceptions specifically accepted or waived in
writing by Buyer. Seller has good and marketable title to all other assets
comprising the Assets. Except as specifically set forth in this Agreement, the
Real Property and Personal Property to be transferred pursuant to this Agreement
are sold "AS IS," without any warranty, express or implied, whether of
merchantability, fitness for a particular use or purpose, or otherwise (except
as to title), all of which warranties are hereby disclaimed. No notice of any
violation of zoning laws, building, fire, and other regulations, laws, statutes,
ordinances and regulations relating to either of the Branch Offices has been
received by the Seller that is currently outstanding and uncured.
Section 3.08. Environmental Matters. There is no legal, administrative,
------------ ---------------------
arbitral or other proceeding, claim, action, cause of action or governmental
investigation pending or, to the knowledge of Seller, threatened which seeks to
impose on Seller or any predecessor of Seller in connection with either of the
Branch Offices any liability arising under any Environmental Laws (as
hereinafter defined), nor is there to the knowledge of Seller, any basis for any
of the foregoing. Seller is not subject to any agreement, order, judgment,
decree or memorandum by or with any court, governmental authority, regulatory
agency or third party imposing any such liability with respect to the Real
Property. To the knowledge of Seller, there are no environmental conditions such
as above ground or under ground storage tanks, discharges or emissions or
releases of Hazardous Materials (as hereinafter defined), which constitute a
violation of any Environmental Laws present at, on, under, or above the Real
Property. As used herein the term Environmental Laws means any laws (including,
without limitation, the Comprehensive Environmental Response, Compensation, and
Liability Act), including any plans, other criteria, or guidelines promulgated
pursuant to such laws, now or hereafter in effect relating to the generation,
production, installation, use, storage, treatment, transportation, release,
threatened release, or disposal of Hazardous Materials. As used herein, the term
Hazardous Materials means any wastes, substances, radiation, or materials
(whether solids, liquids, or gases): (i) which are hazardous, toxic, infectious,
explosive, radioactive, carcinogenic, or mutagenic; and (ii) which are defined
as "pollutants," "contaminants," "hazardous materials," "hazardous wastes,"
"hazardous substances," "toxic substances," "radioactive materials," "solid
wastes," or other similar designations in, or otherwise subject to regulations
under, any Environmental Laws.
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Section 3.09. Brokerage. There are no existing claims or agreements
------------ ---------
for brokerage commissions, finders' fees, or similar compensation in connection
with the purchase and assumption transaction contemplated by this Agreement.
Section 3.10. Loans and Deposits. Each of the Loans: (i) is a legal,
------------ ------------------
valid and binding obligation of the obligor, maker, co-maker, guarantor,
endorser or debtor (such persons are sometimes referred to herein as the
"Obligors") thereof or thereunder and is evidenced by legal, valid and binding
instruments executed by the respective Obligors; and (ii) has not been amended
or modified except as set forth in the loan documentation related to such Loans.
Seller is not in default under any of the Loans and, to the knowledge of Seller,
none of the Obligors are in default under any of the Loans. The information
provided to Buyer by Seller and/or its agents on the Deposits and the Loans
expected to be assumed and purchased by Buyer hereunder is correct as of the
indicated date and, upon appropriate updating and revision, will be true and
correct as of the Closing Date. The Deposits to be assumed by Buyer hereunder
are insured by the Savings Association Insurance Fund of the Federal Deposit
Insurance Corporation and no action is pending or threatened against Seller with
respect to the termination of such insurance for such Deposits.
Section 3.11. Employee Information. The information regarding employee
------------ --------------------
compensation and benefits made available by Seller to Buyer is correct in all
material respects as of the date thereof and, upon appropriate updating and
revision, will be true and correct as of the Closing Date. There are no pending
labor disputes involving the Seller and any current or former employee of the
Branch Offices nor, to the knowledge of Seller, are any such disputes
threatened.
Section 3.12. XXX Documentation. Seller has made available to Buyer
------------ -----------------
true and correct copies of all documentation regarding any XXX or other
retirement plan Deposits to be assumed by Buyer pursuant to this Agreement, and
Seller will provide Buyer at the Closing Date with proper documentation for the
transfer to Buyer of such XXX and other retirement plan Deposits.
Section 3.13. Statements True and Correct. No representation or
------------ --------------------------------
warranty by Seller contained in this Agreement (including, without limitation,
the Schedules hereto) contains any untrue statement of fact or omits any
statement of fact necessary to make the statements herein not materially
misleading.
ARTICLE FOUR
------------
REPRESENTATIONS AND WARRANTIES OF BUYER
---------------------------------------
Buyer hereby makes the following representations and warranties:
Section 4.01. Organization. Buyer is a state banking corporation duly
------------ ------------
organized, validly existing and in good standing under the laws of the State of
Alabama, and has the corporate
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power to carry on its business as the same is being conducted and to assume the
liabilities being transferred and to effect the transactions contemplated
herein.
Section 4.02. Authorization. All necessary corporate actions have been
------------ -------------
taken to authorize the execution of this Agreement on Buyer's behalf by Buyer's
duly authorized officers and the performance by Buyer of its obligations
hereunder. This Agreement has been duly and validly executed and delivered by
Buyer and constitutes a legal, valid and binding obligation of Buyer,
enforceable against Buyer in accordance with its terms, subject to bankruptcy,
insolvency, reorganization or other similar laws affecting the enforcement of
creditors' rights generally and to general principles of equity, whether
considered in a proceeding at law or in equity.
Section 4.03. Non-Contravention. The execution and delivery of this
------------ -----------------
Agreement by Buyer do not, and, subject to the receipt of all required approvals
and consents, including but not limited to regulatory approvals, the
consummation of the transaction contemplated by this Agreement will not,
constitute a breach or violation of or default under any law, rule, regulation,
judgment, order, governmental permit or license, agreement, indenture, or
instrument to which Buyer is a party, or by which it or any of its assets or
property is bound, which breach, violation, or default would have a material
adverse effect on Buyer.
Section 4.04. Consents to Transaction. The consummation of the purchase
------------ -----------------------
and assumption transaction contemplated by this Agreement does not require Buyer
to obtain the prior consent or approval of any person, other than regulatory
approval from the appropriate regulatory authorities, and Buyer is not aware of
any matters or events that would be the basis for denial of regulatory approval,
or would be likely to result in material limitations being imposed on such
regulatory approval.
Section 4.05. Litigation. There are no governmental or administrative
------------ ----------
proceedings or other proceedings, litigation, judgment or claims pending or
threatened against Buyer or any of its affiliates affecting the ability of Buyer
to carry out this Agreement, or any of the transactions contemplated hereby.
Section 4.06. Brokerage. Except for fees due to Austin Associates, LLC,
------------ ---------
which will be paid by Buyer, there are no existing claims or agreements for
brokerage commissions, finders' fees, or similar compensation in connection with
the purchase and assumption transaction contemplated by this Agreement.
Section 4.07. Statements True and Correct. No representation or
------------ -------------------------------
warranty by Buyer contained in this Agreement contains any untrue statement of
fact or omits any statement of fact necessary to make the statements herein not
materially misleading.
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ARTICLE FIVE
AGREEMENTS OF THE SELLER
Section 5.01. Business in Ordinary Course.
------------ ---------------------------
(a) Except as may be required to obtain regulatory approvals
or as otherwise may be required by any regulatory authority, after the date of
this Agreement, Seller shall not, without the prior written consent of Buyer
(which consent shall not be unreasonably withheld):
cause or permit either of the Branch Offices to engage or
participate in any material transaction or incur or sustain any material
obligation except in the ordinary course of business;
cause either of the Branch Offices to transfer any
Deposit, including without limitation, transfers to Seller's or any affiliates
other offices or operations, except (A) pursuant to the unsolicited request of a
depositor in the ordinary course of business, or (B) with the consent of Buyer;
(A) increase the compensation or benefits payable or to
become payable to any employee of either of the Branch Offices or advance the
title of any such employee other than regularly scheduled increases or
advancements or otherwise in accordance with Seller's customary policies and/or
changes implemented throughout Seller's organization, or (B) pay or agree to pay
any uncommitted bonus to any employee of either of the Branch Offices other than
regular bonuses based on and consistent with historical practice;
hire any new employees at or transfer any employees from
other offices of Seller to (other than replacement employees and employees hired
to fill existing openings) either of the Branch Offices or move any current
employee of either of the Branch Offices to another office of Seller or any
affiliate;
offer to pay or accept and pay on any deposit account at
either of the Branch Offices any rate that would deviate materially from
Seller's historical pricing practices, and which is higher than that generally
offered by Seller on similar deposit products at other offices of Seller;
undertake any actions which are inconsistent with a
program to use all reasonable efforts to maintain good relations with employees
employed at, and customers of, the Branch Offices, unless such actions are
required or permitted by this Agreement or required by any regulatory authority;
or
(b) Seller shall not, without the prior written consent of
Buyer, engage in any transaction or take any action that would render untrue in
any material respect any of the
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representations and warranties of Seller contained in Article Three hereof, if
such representations and warranties were given as of the date of such
transaction or action.
(c) Seller shall promptly notify Buyer in writing of the
occurrence of any matter or event known to and directly involving Seller, which
would not include any changes in conditions that affect the banking industry
generally, that is materially adverse to the business, operations, properties,
assets, or condition (financial or otherwise) of either of the Branch Offices.
Section 5.02. Breaches. Seller shall, in the event it has knowledge of
------------ --------
the occurrence, or impending or threatened occurrence, of any event or condition
which would cause or constitute a breach (or would have caused or constituted a
breach had such event occurred or been known prior to the date hereof) of any of
its representations or agreements contained or referred to herein, give prompt
written notice thereof to Buyer and use its best efforts to prevent or promptly
remedy the same.
Section 5.03. Consents to Assumed Contracts. Seller shall use its best
------------ -----------------------------
efforts to obtain all necessary consents with respect to all interests of Seller
in the Assumed Contracts which require the consent of another person for their
transfer or assumption pursuant to this Agreement, if any.
Section 5.04. Title Commitment. Seller shall provide Buyer with a
------------ -----------------
commitment for title insurance or a title opinion with respect to the Real
Property within thirty (30) days after the execution of this Agreement. Buyer
shall have fifteen (15) days after the receipt of the commitment for title
insurance or title opinion to object, in writing, to any exceptions or other
matters contained therein. If no objections are made, Buyer shall be deemed to
have accepted the status of title. Buyer and Seller agree that Buyer accepts and
waives objections to Permitted Exceptions. Buyer and Seller hereby acknowledge
their mutual understanding that Seller is under no obligation to cause any
exceptions or other matter to which Buyer may have objected to be corrected.
Section 5.05. Consummation of Agreement. Seller shall use its best
------------ --------------------------
efforts to perform and fulfill all conditions and obligations on its part to be
performed or fulfilled under this Agreement and to effect the purchase and
assumption transaction contemplated by this Agreement in accordance with the
terms and provisions hereof. Seller shall furnish to Buyer in a timely manner
all information, data and documents in the possession of Seller requested by
Buyer as may be required to obtain any necessary regulatory or other approvals
of the purchase and assumption transaction contemplated by this Agreement and
shall otherwise cooperate fully with Buyer to carry out the purpose and intent
of this Agreement.
Section 5.06. Access to Information. Seller shall permit Buyer
------------ -------------------------
reasonable access, in a manner which will avoid undue disruption or interference
with Seller's normal operations, to the Branch Offices and shall disclose and
make available to Buyer at the main office of Seller all
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books, documents, papers and records relating to the Branch Offices, its assets,
operations, obligations and liabilities, including, but not limited to, all
books of account (including the general ledger), tax records, material contracts
and agreements, loan files, filings with any regulatory authority, litigation
files, and any other business activities or prospects in which Buyer may have a
reasonable and legitimate interest in furtherance of the purchase and assumption
transaction contemplated by this Agreement. Buyer will hold any such information
in accordance with the provisions of Section 11.01 hereof.
Section 5.07. Inspection of Real Property. Prior to executing this
------------ -----------------------------
Agreement, Buyer has inspected or caused to be inspected the physical condition
of the Real Property and is satisfied with its condition. However, Buyer may
obtain, at Buyer's expense, a Phase I environmental assessment. Buyer shall
promptly give to Seller a copy of any environmental report resulting from the
assessment. Further, Buyer shall give Seller written notice within thirty (30)
days after the date of this Agreement of any environmental condition(s) that
Buyer reasonably deems unacceptable. Seller may either elect to cure such
condition(s) to the reasonable satisfaction of Buyer or notify Buyer in writing
within fifteen (15) days after receipt of Buyer's timely notice of Seller's
election not to cure the same. If Seller elects not to cure, Buyer may elect to
terminate this Agreement by providing written notice of termination to Seller
within three (3) days of the receipt of Seller's notice. Buyer's failure to
deliver any notice required hereby on a timely basis shall constitute a waiver
of any objections Buyer may have had with respect to the condition of the Real
Property.
ARTICLE SIX
-----------
AGREEMENTS OF THE BUYER
-----------------------
Section 6.01. Regulatory Approvals. Buyer shall file, within fifteen
------------ ---------------------
(15) business days after the date of this Agreement, all regulatory applications
required in order to consummate the purchase and assumption transaction
contemplated by this Agreement, including but not limited to the necessary
applications for the prior approval of the Alabama Banking Department and the
Board of Governors of the Federal Reserve System. Buyer shall provide to Seller
a copy of such applications and correspondence pertaining thereto
contemporaneously with the filing and within five (5) days of receipt of same.
Seller will hold any such information that is nonpublic in confidence in
accordance with the provisions of Section 11.01 hereof. Buyer shall timely file
all documents required to obtain all necessary permits and approvals required to
carry out the purchase and assumption transaction contemplated by this
Agreement, shall pay all expenses incident thereto and shall use its best
efforts to obtain such permits and approvals on a timely basis.
Section 6.02. Breaches. Buyer shall, in the event it has knowledge of
------------ --------
the occurrence, or impending or threatened occurrence, of any event or condition
which would cause or constitute a breach (or would have caused or constituted a
breach had such event occurred or been known prior to the date hereof) of any of
its representations or agreements contained or referred to
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herein, give prompt written notice thereof to Seller and use its best efforts to
prevent or promptly remedy the same.
Section 6.03. Consummation of Agreement. Buyer shall use its best
------------ ---------------------------
efforts to perform and fulfill all conditions and obligations on its part to be
performed or fulfilled under this Agreement and to effect the purchase and
assumption transaction contemplated by this Agreement in accordance with the
terms and conditions hereof.
Section 6.04. Access to Information. Buyer shall disclose and make
------------ ----------------------
available to Seller such information of Buyer in which Seller may have a
reasonable and legitimate interest in furtherance of the transactions
contemplated by this Agreement. Seller will hold any such information that is
nonpublic in confidence in accordance with the provisions of Section 11.01
hereof.
ARTICLE SEVEN
-------------
CONDITIONS PRECEDENT TO THE BRANCH PURCHASE AND ASSUMPTION
----------------------------------------------------------
Section 7.01. Conditions to Seller's Obligations. Seller's obligations
------------ -----------------------------------
to effect the purchase and assumption transaction contemplated by this Agreement
shall be subject to the satisfaction (or waiver by Seller) prior to or on the
Closing Date of the following conditions:
(a) The representations and warranties made by Buyer in this
Agreement shall be true in all material respects on and as of the Closing Date
with the same effect as though such representations and warranties had been made
or given on the Closing Date;
(b) Buyer shall have performed and complied in all material
respects with all of its obligations and agreements required to be performed
prior to the Closing Date under this Agreement;
(c) No temporary restraining order, preliminary or permanent
injunction or other order issued by any court of competent jurisdiction or other
legal restraint or prohibition preventing the consummation of the purchase and
assumption transaction contemplated by this Agreement shall be in effect nor
shall any proceeding by any bank regulatory authority or other governmental
agency seeking any of the foregoing be pending. There shall not be any action
taken, or any statute, rule, regulation or order enacted, entered, enforced or
deemed applicable to the purchase and assumption transaction contemplated by
this Agreement which makes the consummation of such transaction illegal;
(d) All necessary regulatory approvals, consents,
authorizations and other approvals required by law for consummation of the
purchase and assumption transaction contemplated by this Agreement shall have
been obtained in a manner and form reasonably satisfactory to Seller, and all
waiting periods required by law shall have expired;
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(e) Seller shall have received all documents required to be
received from Buyer on or prior to the Closing Date, all in form and substance
reasonably satisfactory to Seller; and
(f) Buyer shall have accepted status of title as reflected in
the commitment for title insurance or title opinion (as such commitment or
opinion may have been modified) delivered by Seller pursuant to Section 5.04
hereof and shall not have elected to terminate this Agreement pursuant to
Section 5.07 hereof.
Section 7.02. Conditions to Buyer's Obligations. Buyer's obligations to
------------ ---------------------------------
effect the purchase and assumption transaction contemplated by this Agreement
shall be subject to the satisfaction (or waiver by Buyer) prior to or on the
Closing Date of the following conditions:
(a) The representations and warranties made by Seller in this
Agreement shall be true in all material respects on and as of the Closing Date
with the same effect as though such representations and warranties had been made
or given on and as of the Closing Date;
(b) Seller shall have performed and complied in all material
respects with all of its obligations and agreements required to be performed
prior to the Closing Date under this Agreement;
(c) No temporary restraining order, preliminary or permanent
injunction or other order issued by any court of competent jurisdiction or other
legal restraint or prohibition preventing the consummation of the purchase and
assumption transaction contemplated by this Agreement shall be in effect, nor
shall any proceeding by any bank regulatory authority or other governmental
agency seeking any of the foregoing be pending. There shall not be any action
taken, or any statute, rule, regulation or order enacted, entered, enforced or
deemed applicable to the purchase and assumption transaction contemplated by
this Agreement which makes the consummation of such transaction illegal;
(d) All necessary regulatory approvals, consents,
authorizations and other approvals required by law for consummation of the
purchase and assumption transaction contemplated by this Agreement shall have
been obtained in a manner and form reasonably satisfactory to Buyer, and all
waiting periods required by law shall have expired;
(e) Buyer shall have received all documents required to be
received from Seller on or prior to the Closing Date, all in form and substance
reasonably satisfactory to Buyer;
(f) Buyer shall have accepted status of title as reflected in
the commitment for title insurance or title opinion (as such commitment or
opinion may have been modified) delivered by Seller pursuant to Section 5.04
hereof and shall not have elected to terminate this Agreement pursuant to
Section 5.07 hereof; and
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(g) Buyer and Seller shall have mutually agreed upon the Loans
to be purchased by Buyer in accordance with Section 1.01(d) hereof, such Loans
having an aggregate principal balance of at least $9,000,000 as of the Closing
Date.
ARTICLE EIGHT
-------------
TERMINATION OR ABANDONMENT
--------------------------
Section 8.01. Mutual Agreement. This Agreement may be terminated by
------------ ----------------
the mutual written agreement of the parties at any time prior to the Closing
Date.
Section 8.02. Breach of Representations or Agreements. In the event
------------ -----------------------------------------
that there is a material breach in any of the representations and warranties or
agreements of Seller or Buyer, which breach is not cured within 30 days after
written notice to cure such breach is given to the breaching party by the
non-breaching party, then the non-breaching party may terminate and cancel this
Agreement by providing written notice of such action to the other party hereto.
Section 8.03. Failure of Conditions. In the event that any of the
------------ -----------------------
conditions to the obligations of either party are not satisfied or waived on or
prior to the Closing Date, and if any applicable cure period provided in Section
8.02 hereof has lapsed, then such party may terminate and cancel this Agreement
by delivery of written notice of such action to the other party on such date.
Section 8.04. Approval Denial. If any regulatory application filed
------------ ----------------
pursuant to Section 6.01 hereof should be finally denied or disapproved by the
respective regulatory authority, then this Agreement thereupon shall be deemed
terminated and canceled; provided, however, that a request for additional
information from, or undertakings by, the applicant, as a condition for
approval, shall not be deemed to be a denial or disapproval so long as the
applicant diligently provides the requested information or agrees to the
requested undertaking. If any regulatory agency requests that an application be
withdrawn and the applicant, in consultation with the other party to this
Agreement, is unable to resolve the concern or objections of such agency, the
applicant shall be deemed to have failed to obtain regulatory approval. In the
event an application is denied but is subject to an appeal, petition for review,
or similar such act on the part of the applicant (hereinafter referred to as the
"appeal") then the application will be deemed denied unless the applicant and
the other party to this Agreement agree in writing to appeal the denial and the
applicant prepares and timely files such appeal and continues the appellate
process for purposes of obtaining the necessary approval, provided, however,
that Seller shall have the right, at its election, to terminate this Agreement
if such appeal remains unresolved for a period exceeding 90 days.
Section 8.05. Automatic Termination. If the Closing Date does not occur
------------ ---------------------
on or prior to a date within 90 days after the date of the Agreement, then this
Agreement shall thereupon be terminated; provided, such 90-day period may be
extended by the mutual agreement of Seller and Buyer.
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ARTICLE NINE
------------
TRANSITIONAL AND POST-CLOSING MATTERS
-------------------------------------
Section 9.01. Notification to Branch Office Customers. Buyer shall:
------------ ---------------------------------------
(a) jointly with Seller, within 14 days after the execution
and delivery of this Agreement, prepare and mail to each depositor whose Deposit
is to be assumed by Buyer, and each loan customer whose Loan is to be purchased
under this Agreement, a letter, in form and substance mutually satisfactory to
the parties, informing such depositor and loan customer of the nature of such
transaction and the availability of services to be provided by the Buyer at the
Branch Offices and other branches of Buyer on and after the Closing Date;
(b) at its own cost and expense, cause to be printed deposit
tickets, checks, withdrawal orders and all other requisite banking transactional
forms for each account which constitutes a Deposit and mail such deposit
tickets, checks, withdrawal orders and other forms to each customer having such
an account so as to be received by such customer on or about the Closing Date,
each such document to be encoded with Buyer's identification numbers and to be
accompanied by Buyer's letter advising that, from and after the Closing Date,
such newly issued deposit tickets, checks, withdrawal orders and other forms are
to be used instead of the corresponding existing documents of Seller with
respect to the customer's Deposit account currently maintained at the Branch
Offices, and that any such existing documents of Seller are to be destroyed; and
(c) take any other actions required by law or regulation or by
any court or regulatory authority to notify customers or depositors of the
Branch Office or residents of the communities in which the Branch Office is
located of the transfers and assumptions occurring pursuant to this Agreement.
The out-of-pocket cost of the mailings required by subsections (a) and (b) of
this section shall be borne by Buyer. At Buyer's discretion and cost, Buyer may
at any time after the execution and delivery of this Agreement, provide any
notices to customers of the Branches that are required by Federal Reserve
Regulation DD or E to permit Buyer to implement changes in terms after the
Closing Date.
Section 9.02. Payment of Instruments. Following the Closing, Buyer
------------ -----------------------
agrees to pay in accordance with law all checks, drafts, and withdrawal orders
which are properly drawn by depositors with respect to the Deposits assumed by
Buyer, which are duly endorsed (or for which necessary endorsements are deemed
supplied by applicable law) and otherwise properly payable, in light of credit
balances and overdraft privileges, if any, applicable to such depositors, and
presented to Buyer by mail, over its counters, or through the check-clearing
system of the banking industry, and in all other respects to discharge, in the
usual course of the banking business, the duties and obligations of the Seller
with respect to the balances due and owing to the depositors whose Deposits are
assumed by Buyer.
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Section 9.03. Statements. Seller shall issue statements to its
------------ ----------
customers, which include all transactions with respect to the Deposits through
the close of business on the Closing Date, and Buyer shall issue statements for
all transactions with respect to the Deposits thereafter.
Section 9.04. Limited Correspondent. Seller shall act as Buyer's
------------ -----------------------
limited correspondent for the processing of checks, drafts and withdrawal orders
drawn before or after the Closing on the draft, check or withdrawal order forms
provided by Seller on Deposits assumed by Buyer hereunder, and Buyer will honor
and pay all such checks, drafts and withdrawal orders if duly endorsed and to
the extent that the credit balances or overdraft privileges of the drawers or
makers permit; provided, that Seller shall present all such checks, drafts and
withdrawal orders to the Buyer's designated courier as soon as possible and no
later than two (2) business days after such checks, drafts or withdrawals are
received by Seller.
Section 9.05. Uncollected Items. Buyer shall pay to Seller, not later
------------ -----------------
than two (2) business days after demand, the amount of all uncollected items
included in the Deposits on the Closing Date which are returned to Seller after
the Closing Date as uncollected; provided, that Seller shall, upon Buyer's
making such payment, deliver each such item to Buyer and shall assign to Buyer
any and all rights which Seller may have or obtain in connection with such
returned items.
Section 9.06. Loans and Deposits. For a period of 90 calendar days
------------ --------------------
after the Closing Date, Seller will forward to Buyer as soon as reasonably
possible, but in no event more than ten (10) days after receipt, any loan
payments received by Seller made with respect to Loans purchased by Buyer. Buyer
shall reimburse Seller upon demand for checks returned on payments forwarded by
Seller to Buyer. If the balance due on any Loan purchased pursuant to Section
1.01(d) has been reduced by Seller as a result of a payment by check received
prior to the Closing Date, which item is returned after the Closing Date, the
Acquisition Value represented by the Loan transferred shall be correspondingly
increased and an amount in cash equal to such increase shall be paid by Buyer to
Seller promptly upon demand.
Section 9.07. ACH. As soon as practicable following the Closing Date,
------------ ---
Seller will notify all Automated Clearing House ("ACH") originators effecting
debits or credits to the accounts of the Deposit Liabilities of the purchase and
assumption transactions contemplated by this Agreement. For a period of 90 days
beginning on the Closing Date, Seller will honor all ACH items related to
accounts of Deposit Liabilities which are mistakenly routed or presented to
Seller. Seller will make no charge to Buyer for honoring such items, and will
use its best efforts to transmit to Buyer via facsimile, by 10:00 a.m. or as
soon as practicable thereafter, each day's ACH data that is to be posted that
day. Items mistakenly routed or presented after the 90-day period may be
returned to the presenting party. Seller and Buyer shall make arrangements to
provide for the daily settlement with immediately available funds by Buyer of
any ACH items honored by Seller.
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Section 9.08. Noncompetition/Nonsolicitation. Seller agrees that for a
------------ ------------------------------
period of three (3) years after the Closing Date, neither Seller, nor its
affiliates, subsidiaries, successors or assigns will, without Buyer's consent,
open a banking, loan production or other office for the purpose of offering
banking or related services to the public within ten (10) miles of the
Rogersville Branch Office or within one (1) mile of the Mall Branch Office.
Seller further agrees that for a period of two (2) years after the execution of
the Agreement, neither Seller nor its affiliates, subsidiaries, successors or
assigns will (i) solicit customers whose Deposits or Loans are assumed or
acquired by Buyer hereunder to provide banking services to such customers, it
being expressly understood by Buyer that such agreement by Seller shall not be
construed to prohibit (A) solicitations of customers who remain customers of
Seller following the Closing by reason of another deposit, loan, trust, credit
card, debit card, or other relationship maintained by the customer at another
office of Seller, (B) any general mass mailing or other similar communication
made by Seller which does not specifically target customers of the Branch
Offices, nor (C) newspaper, television, radio or similar advertisements of a
general nature; or (ii) seek to employ any employee with Seller at either of the
Branch Offices who becomes an employee of Buyer upon consummation of the
transactions contemplated by the Agreement for so long as such individual
remains an employee of Buyer.
Section 9.09. Access to Records. Seller and Buyer mutually agree to
------------ -----------------
maintain all records and other documents relating to the Assets and Assumed
Liabilities for such periods as provided in Seller and Buyer's respective record
retention policies and required by applicable law, and to examine, inspect, copy
and reproduce such records and other documents relating to such Assets and
Assumed Liabilities as may be reasonably requested by the other party. Any
charges for such examination and photocopying shall be at a rate not greater
than the examining party's customary rates for similar requests by its
customers.
Section 9.10. Information Reporting. With respect to the Loans and
------------ ---------------------
Deposits purchased and assumed by Buyer pursuant to this Agreement, Buyer shall
be responsible for reporting to the customer and to the Internal Revenue Service
(and any state or local taxing authority as required) all interest paid or
earned after the Closing Date and Seller shall be responsible for reporting all
such information on or prior to the Closing Date.
Section 9.11. Transition. From and after the date of this Agreement,
------------ ----------
Seller and Buyer agree to fully cooperate with and assist one another in
connection with the transition and conversion of all customer accounts, files
(including data processing files) and other information which are being
purchased and assumed by Buyer pursuant to the terms hereof. Additionally, each
of the Buyer and Seller agree to provide each other, upon reasonable prior
notice, with such information and data as is necessary to allow the Seller and
Buyer to comply with all tax, regulatory reporting, audit or other compliance
obligations relating to the customers, employees and operations of the Branch
Offices, and each of Seller and Buyer agree to timely take any and all action as
required by law to comply with such tax, regulatory and/or reporting
obligations.
21
30
ARTICLE TEN
-----------
INDEMNIFICATION
---------------
Section 10.01. Indemnification of Buyer. Seller shall indemnify, hold
------------- --------------------------
harmless and defend Buyer (and each of Buyer's directors, officers,
subsidiaries, successors and assigns, and affiliates) (collectively, the
"Buyer's Indemnified Parties") from and against any and all damage, loss,
liability, cost, claim, or expense (including reasonable legal fees and
expenses) incurred or suffered by Buyer's Indemnified Parties (i) arising out of
or resulting from the breach or inaccuracy of or failure to comply with any
representation, warranty or covenant made by the Seller in this Agreement which
survives the Closing Date as specified in Section 11.07 hereof; or (ii) arising
out of or resulting from or based upon any Excluded Liabilities, as defined in
Section 1.02(c) hereof.
Section 10.02. Indemnification of Seller. Buyer shall indemnify, hold
------------- ---------------------------
harmless and defend Seller (and Seller's directors, officers, subsidiaries,
successors and assigns, and affiliates) (collectively the "Seller's Indemnified
Parties") from and against any and all damage, loss, liability, cost, claim, or
expense (including reasonable legal fees and expenses) incurred or suffered by
Seller's Indemnified Parties (i) arising out of or resulting from the breach or
inaccuracy of or failure to comply with any representation, warranty or covenant
made by the Buyer in this Agreement which survives the Closing Date as specified
in Section 11.07 hereof; (ii) by reason of any failure of the Buyer to pay,
honor, perform or otherwise discharge the liabilities assumed pursuant to
Sections 1.02(a), 1.02(b) and 2.03 hereof on or after the Closing Date; or (iii)
arising out of or resulting from the Buyer's operation of the Branch Offices on
or after the Closing Date.
Section 10.03. Procedure and Limitations. No indemnification will be
------------- -------------------------
provided under Sections 10.01 or 10.02 (i) for any claim for indemnification
which is made more than three (3) years following the Closing Date; and (ii)
unless the amount of any claim or aggregate claims exceeds $10,000. Any
indemnified party shall give the indemnitor prompt notice of any claim
hereunder; provided, the failure to give such notice shall not affect the right
to indemnification hereunder unless the indemnitor was materially prejudiced by
such failure. The indemnitor shall have the right to defend at its own expense
any claim for which the indemnitor is liable hereunder, but no settlement or
compromise of such claim may be effected which materially affects the
indemnified party without its consent thereto, which shall not be unreasonably
withheld. The indemnified party shall cooperate with the indemnitor in the
defense of any such claims and may participate therein with its own counsel at
its own expense.
22
31
ARTICLE ELEVEN
--------------
GENERAL
-------
Section 11.01. Confidential Information. The parties acknowledge the
------------- -------------------------
confidential and proprietary nature of the "Information" (as herein described)
that has heretofore been exchanged and that will be received from each other
hereunder and agree to hold and keep, and to instruct their respective agents,
representatives, shareholders, affiliates, employees and consultants to hold and
keep, such Information confidential. Such Information will include any and all
financial, technical, commercial, marketing, customer or other information
concerning the business, operations and affairs of a party that may be provided
to the other, irrespective of the form of the communications, by such party's
employees or agents. Such Information shall not include information that is or
becomes generally available to the public other than as a result of a disclosure
by a party or its representatives in violation of this Agreement. The parties
agree that the Information will be used solely for the purposes contemplated by
this Agreement and that such Information will not be disclosed to any person
other than employees and agents of a party who are directly involved in
evaluating and/or performing this transaction. The Information shall not be used
in any way detrimental to a party, including use directly or indirectly in the
conduct of the other party's business or any business or enterprise in which
such party may have an interest, now or in the future, and whether or not now in
competition with such other party.
Section 11.02. Publicity. Buyer and Seller shall cooperate with each
------------- ---------
other in the development and distribution of all news releases and other public
disclosures concerning this Agreement and the transaction contemplated herein
and shall not issue any news release or make any other public disclosure without
the prior written consent of the other party, unless such is required by law
upon the written advice of counsel or is in response to published newspaper or
other mass media reports regarding the transaction contemplated hereby, in which
latter event the parties shall consult with each other regarding such responsive
public disclosure. Seller and Buyer agree that they shall jointly prepare and
promptly, and in no event more than one (1) business day after execution of this
Agreement, issue a press release announcing the proposed transaction.
Section 11.03. Return of Documents. Upon termination of this Agreement
------------- -------------------
without the purchase and assumption transaction contemplated by this Agreement
becoming effective, each party (i) shall deliver to the other originals and all
copies of all Information made available to such party, and, except as may
otherwise be required by law or to protect the interests of either party, (ii)
will not retain any copies, extracts or other reproductions in whole or in part
of such information, and (iii) will destroy all memoranda, notes and other
writings prepared by either party based on the Information.
Section 11.04. Notices. Any notice or other communication shall be in
------------- -------
writing and shall be deemed to have been given or made on the date of delivery,
in the case of hand delivery, or three (3) business days after deposit in the
United States Registered Mail, postage prepaid, or
23
32
upon receipt if transmitted by facsimile telecopy, electronic mail or any other
means, addressed (in any case) as follows:
(a) if to Seller:
First Southern Bank
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxx 00000
Attention: Xxx Xxxxxxxxx
Facsimile: (000)-000-0000
With a copy to:
Xxxxxx Xxxxxx
Baker, Donelson, Bearman & Xxxxxxxx, P.C.
21st Floor
000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxx 00000
Facsimile: (000) 000-0000
and
(b) if to Buyer:
Bank Independent
000 X. Xxxxxxxxxx Xxx.
Xxxxxxxxx, Xxxxxxx 00000-0000
Attention: E. Fennel Xxxxxxx, Jr., Vice Chairman
Facsimile: (000) 000-0000
With copy to:
Xxxxxx X. Blank
Werner & Blank Co., L.P.A.
0000 Xxxx Xxxxxxx Xxx.
Xxxxxx, Xxxx 00000
Facsimile: (000) 000-0000
or to such other address as any party may from time to time designate by notice
to the others.
Section 11.05. Expenses. Except as otherwise specifically provided
------------- --------
herein, Seller and Buyer each shall pay all of their own out-of-pocket expenses
incurred in connection with this Agreement, including, without limitation,
appraisals, accounting and legal fees, and data processing charges, if any,
whether or not the purchase and assumption transaction contemplated
24
33
by this Agreement is consummated. The cost of the title insurance policy
(including the related commitment) or the title opinion described in Section
5.04 hereof, all documentary stamps or similar transfer fees with respect to the
Real Property shall be paid by Seller, and recording costs with respect to the
Real Property, and all sales taxes (if any) with respect to the Personal
Property shall be paid by the Buyer.
Section 11.06. Liabilities. In the event that this Agreement is
------------- -----------
terminated pursuant to the provisions of Article Eight hereof, no party hereto
shall have any liability to any other party for costs, expenses, damages or
otherwise; provided, that, notwithstanding the foregoing, in the event that this
Agreement is terminated pursuant to Section 8.02 hereof on account of a willful
breach of any of the representations and warranties set forth herein, or any
breach of any of the agreements set forth herein, then the non-breaching party
shall be entitled to recover its damages from the breaching party.
Section 11.07. Survival of Representations, Warranties and Agreements.
------------- -------------------------------------------------------
The representations, warranties and agreements contained in this Agreement shall
survive the Closing Date, or the earlier termination of this Agreement, for a
period of three (3) years.
Section 11.08. Entire Agreement. This Agreement constitutes the entire
------------- ----------------
agreement between the parties hereto and supersedes any and all prior
discussions, negotiations, undertakings, agreements in principle and other
agreements between the parties relating to the subject matter hereof. This
Agreement supersedes the Confidentiality Agreement between the parties dated
January 7, 2002, which Confidentiality Agreement is hereby terminated.
Section 11.09. Headings and Captions. The captions of Articles and
------------- ---------------------
Sections hereof are for convenience only and shall not control or affect the
meaning or construction of any of the provisions of this Agreement.
Section 11.10. Waiver, Amendment or Modification. The conditions of
------------- ------------------------------------
this Agreement that may be waived may be waived only by written instrument duly
executed by the party for which the condition(s) is intended to benefit. The
failure of any party at any time or times to require performance of any
provision hereof shall in no manner affect the right of such party at a later
time to insist upon performance of the same. This Agreement may not be amended
or modified except by a written instrument duly executed by the parties hereto.
Section 11.11. Rules of Construction. Unless the context otherwise
------------- ----------------------
requires: (a) a term has the meaning assigned to it; (b) "or" is not exclusive;
and (c) words in the singular may include the plural and in the plural include
the singular and the male gender shall be intended to include the female gender
where appropriate.
Section 11.12. Counterparts. This Agreement may be executed in two or
------------- ------------
more counterparts, each of which shall be deemed an original and all of which
shall be deemed one and the same instrument.
25
34
Section 11.13. Successors and Assigns. This Agreement shall be binding
------------- ----------------------
upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns. There shall be no third-party beneficiaries
hereof.
Section 11.14. Governing Law; Assignment. This Agreement shall be
------------- ---------------------------
governed by the laws of the State of Alabama and applicable federal laws and
regulations. 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, except that Buyer may assign such rights
(but shall retain such obligations) to a subsidiary or subsidiaries or a parent
company of Buyer, or to a successor of substantially all of its business,
without the consent of Seller.
Section 11.15. Permitted Exceptions. The term "Permitted Exceptions"
------------- ---------------------
shall mean, with respect to the Real Property, ad valorem taxes for the current
year, prior mineral reservations and conveyances and any other exceptions,
restrictions, easements, rights ofway and encumbrances which do not materially
and adversely affect the value or present use of the Real Property.
Section 11.16. Time of Essence. The parties hereto agree that time is
------------- ---------------
of the essence with respect to the performance of the obligations hereunder.
26
35
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
FIRST SOUTHERN BANK
By:
-------------------------
Name: B. Xxxx Xxxxxxx
Title: President and CEO
BANK INDEPENDENT
By:
--------------------------
Name: E. Fennel Xxxxxxx,, Jr.
Title: Vice Chairman
27
36
EXHIBIT 1
---------
BRANCH PURCHASE AND ASSUMPTION AGREEMENT
BETWEEN
FIRST SOUTHERN BANK
AND
BANK INDEPENDENT
ASSIGNMENT AND ASSUMPTION OF DEPOSIT LIABILITIES AGREEMENT
----------------------------------------------------------
This ASSIGNMENT AND ASSUMPTION OF DEPOSIT LIABILITIES AGREEMENT is
dated this _____ day of _______________, 2002, by and between FIRST SOUTHERN
BANK, an Alabama banking corporation ("Seller"), and BANK INDEPENDENT, an
Alabama banking corporation ("Buyer"). Capitalized terms not otherwise defined
herein shall have the same meaning as specified in the Agreement (as defined
below).
W I T N E S S E T H:
WHEREAS, Seller and Buyer have entered into a Branch Purchase and
Assumption Agreement, dated as of ___________, 2002 (the "Agreement"), which
provides for the assignment by Seller of all of its rights and interest in and
to certain deposit accounts related to the Seller's offices located at 0000 Xxxx
Xxxxx, Xxxxxxxx, Xxxxxxx and 000 Xxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxx
(collectively, the "Branch Offices"), and the assumption by Buyer of such
deposit accounts, all as set forth in the Agreement.
NOW, THEREFORE, for good and valuable consideration, receipt of which
is hereby acknowledged by Seller and Buyer, Seller hereby assigns, transfers and
sets over to Buyer all of Seller's rights and interest in and to, and Buyer does
hereby assume all of Seller's liabilities and obligations with respect to, all
Deposit Liabilities maintained at the Branch Offices, as shown on the books and
records of Seller as of the close of business on the Closing Date, as further
specified in the Agreement.
This Assignment and Assumption of Deposit Liabilities Agreement shall
be binding upon and shall inure to the benefit of Seller, Buyer and each of
their respective successors and assigns, and shall be subject to the terms and
conditions of the Agreement. In the event of a conflict between any of the terms
and provisions hereof and the Agreement, the Agreement shall be deemed to
control.
This Assignment and Assumption of Deposit Liabilities Agreement, and
the rights and obligations of the parties hereunder, shall be governed by and
construed in accordance with the laws of the State of Alabama and applicable
federal laws and regulations.
37
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Assumption of Deposit Liabilities Agreement to be executed as of the date first
above written.
FIRST SOUTHERN BANK
By:
--------------------------------
Name: B. Xxxx Xxxxxxx
Title: President and CEO
BANK INDEPENDENT
By:
--------------------------------
Name: E. Fennel Xxxxxxx, Jr.
Title: Vice Chairman
2
38
EXHIBIT 2
---------
BRANCH PURCHASE AND ASSUMPTION AGREEMENT
BETWEEN
FIRST SOUTHERN BANK
AND
BANK INDEPENDENT
ASSIGNMENT AND ASSUMPTION OF CONTRACTS AGREEMENT
------------------------------------------------
This ASSIGNMENT AND ASSUMPTION OF CONTRACTS AGREEMENT is dated this
_____ day of _______________, 2002, by and between FIRST SOUTHERN BANK, an
Alabama banking corporation ("Seller"), and BANK INDEPENDENT, an Alabama banking
corporation ("Buyer"). Capitalized terms not otherwise defined herein shall have
the same meaning as specified in the Agreement (as defined below).
W I T N E S S E T H:
WHEREAS, Seller and Buyer have entered into a Branch Purchase and
Assumption Agreement, dated as of __________, 2002 (the "Agreement"), which
provides for the assignment by Seller of all of its rights and interest in and
to certain contracts and leases related to the Seller's offices located at 0000
Xxxx Xxxxx, Xxxxxxxx, Xxxxxxx and 000 Xxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxx
(collectively, the "Branch Offices"), and the assumption by Buyer of such
contract and lease liabilities and obligations, all as set forth in the
Agreement.
NOW, THEREFORE, for good and valuable consideration, receipt of which
is hereby acknowledged by Seller and Buyer, Seller hereby assigns, transfers and
sets over to Buyer all of Seller's rights and interest in and to, and Buyer does
hereby assume all of Seller's liabilities and obligations with respect to, the
following:
All contracts relating to the operation or maintenance of the
Branch Offices, as further specified in Schedule E of the
Agreement.
This Assignment and Assumption of Contracts Agreement shall be binding
upon and shall inure to the benefit of Seller, Buyer and each of their
respective successors and assigns, and shall be subject to the terms and
conditions of the Agreement. In the event of a conflict between any of the terms
and provisions hereof and the Agreement, the Agreement shall be deemed to
control.
39
This Assignment and Assumption of Contracts Agreement, and the rights
and obligations of the parties hereunder, shall be governed by and construed in
accordance with the laws of the State of Alabama and applicable federal laws and
regulations.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Assumption of Contracts Agreement to be executed as of the date first above
written.
FIRST SOUTHERN BANK
By:
----------------------
Name: B. Xxxx Xxxxxxx
Title: President and CEO
BANK INDEPENDENT
By:
--------------------------
Name: E. Fennel Xxxxxxx, Jr.
Title: Vice Chairman
2
40
EXHIBIT 3
---------
BRANCH PURCHASE AND ASSUMPTION AGREEMENT
BETWEEN
FIRST SOUTHERN BANK
AND
BANK INDEPENDENT
XXXX OF SALE
------------
This XXXX OF SALE is dated this day of , 2002, by
----- ---------------
FIRST SOUTHERN BANK, an Alabama banking corporation ("Seller"). Capitalized
terms not otherwise defined herein shall have the same meaning as specified in
the Agreement (as defined below).
W I T N E S S E T H:
WHEREAS, Seller and BANK INDEPENDENT, an Alabama banking corporation
("Buyer"), have entered into a Branch Purchase and Assumption Agreement, dated
as of , 2002 (the "Agreement"), which provides for the sale by Seller
-----------
to Buyer of the Personal Property, Loans, Records and Cash on Hand related to
the Seller's offices located at 0000 Xxxx Xxxxx, Xxxxxxxx, Xxxxxxx and 000 Xxxx
Xxxxxx, Xxxxxxxxxxx, Xxxxxxx (collectively, the "Branch Offices"), all as set
forth in the Agreement.
NOW, THEREFORE, Seller, for good and valuable consideration, receipt of
which is hereby acknowledged, does hereby grant, bargain, sell, assign, set
over, convey and transfer to Buyer all of its right, title and interest in and
to the following assets (the "Assets"):
(a) The fixtures and improvements located at the Branch
Offices as of the close of business on the Closing
Date, together with sign structures and all personal
property being transferred to Buyer, as more
specifically described in the Agreement;
(b) All of the Loans attributed to the Branch Office as
of the Closing Date, as further described and
modified in Section 1.01(d) of the Agreement, a list
of such specific Loans to be attached hereto on or
before the Adjustment Payment Date;
(c) All of Seller's Records; and
41
(d) All of Seller's Cash on Hand.
Seller does hereby covenant and agree to and with Buyer that it (i) is
seized of, and has the right to convey to Buyer, such title to the Assets as is
provided in the Agreement, (ii) will warrant and defend said title to the Assets
in the manner provided in the Agreement, and (iii) shall, from time to time, at
the request of Buyer, execute, acknowledge and deliver to Buyer any and all
further instruments, documents, endorsements, assignments, information,
materials and other papers as may be reasonably required to transfer the Assets
to Buyer and to give full force and effect to the full intent and purposes of
this Xxxx of Sale.
This Xxxx of Sale, and the rights and obligations of the parties
hereunder, shall be governed by and construed in accordance with the laws of the
State of Alabama and applicable federal laws and regulations.
IN WITNESS WHEREOF, Seller has caused this Xxxx of Sale to be duly
executed as of the date first above written.
FIRST SOUTHERN BANK
By:
-------------------------------
Name: B. Xxxx Xxxxxxx
Title: President and CEO
2
42
EXHIBIT 4
---------
BRANCH PURCHASE AND ASSUMPTION AGREEMENT
BETWEEN
FIRST SOUTHERN BANK
AND
BANK INDEPENDENT
ASSIGNMENT, TRANSFER AND APPOINTMENT OF SUCCESSOR TRUSTEE FOR
-------------------------------------------------------------
XXX ACCOUNTS
------------
This ASSIGNMENT, TRANSFER AND APPOINTMENT OF SUCCESSOR TRUSTEE FOR XXX
ACCOUNTS is dated this _____ day of _______________, 2002, by and between FIRST
SOUTHERN BANK, an Alabama banking corporation ("Seller"), and BANK INDEPENDENT,
an Alabama banking corporation ("Buyer"). Capitalized terms not otherwise
defined herein shall have the same meaning as specified in the Agreement (as
defined below).
W I T N E S S E T H:
WHEREAS, Seller and Buyer have entered into a Branch Purchase and
Assumption Agreement, dated as of ___________, 2002 (the "Agreement"), with
respect to the Seller's offices located at 0000 Xxxx Xxxxx, Xxxxxxxx, Xxxxxxx
and 000 Xxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxx (collectively, the "Branch Offices"),
which provides for the Seller to resign from its position as trustee and
custodian with respect to any XXX Account which includes as one or more of its
assets a Deposit being transferred to Buyer pursuant to the Agreement, and to
designate and appoint Buyer as the successor trustee and custodian with respect
to each such XXX Account, all as set forth in the Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt of
which is hereby acknowledged by Seller and Buyer, the Seller and the Buyer
hereby take the following actions:
(a) Seller hereby resigns as trustee and custodian with
respect to each XXX Account as to which Seller is a
trustee or custodian and as to which one or more of the
assets included in such XXX Account is a Deposit
Liability associated with the Branch Offices being
assumed by Buyer, and hereby designates and appoints
Buyer as successor trustee and custodian under such
XXX Account, a list of such specific XXX Accounts to be
attached hereto on or before the Adjustment Payment
Date; and
43
(b) Buyer hereby accepts such appointment and assumes and
agrees to perform the obligations required to be
performed by it as trustee and custodian with respect
to each such XXX Account, as further specified in the
Agreement.
This Assignment, Transfer and Appointment of Successor Trustee for XXX
Accounts shall be binding upon and shall inure to the benefit of Seller, Buyer
and each of their respective successors and assigns, and shall be subject to the
terms and conditions of the Agreement. In the event of a conflict between any of
the terms and provisions hereof and the Agreement, the Agreement shall be deemed
to control.
This Assignment, Transfer and Appointment of Successor Trustee for XXX
Accounts, and the rights and obligations of the parties hereunder, shall be
governed by and construed in accordance with the laws of the State of Alabama
and applicable federal laws and regulations.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment,
Transfer and Appointment of Successor Trustee for XXX Accounts to be executed as
of the date first above written.
FIRST SOUTHERN BANK
By:
--------------------------
Name: B. Xxxx Xxxxxxx
Title: President and CEO
BANK INDEPENDENT
By:
--------------------------
Name: E. Fennel Xxxxxxx, Jr.
Title: Vice Chairman
2
44
EXHIBIT 5
---------
LIMITED POWER OF ATTORNEY
THIS LIMITED POWER OF ATTORNEY is dated this day of
-----
, 2002, by FIRST SOUTHERN BANK, an Alabama banking corporation
--------------
("First Southern"), to be effective as of __:__ _.m. on the date hereof.
W I T N E S S E T H:
WHEREAS, First Southern and Bank Independent, an Alabama banking
corporation ("Buyer"), entered into a Branch Purchase and Assumption Agreement,
dated as of , 2002 (the "Agreement"), which provides for the sale
---------------
by First Southern to Buyer of certain personal property; and
WHEREAS, in the Agreement or in a Xxxx of Sale of even date herewith
(the "Xxxx of Sale"), First Southern has agreed, from time to time, at the
request of Buyer, to execute, acknowledge and deliver to Buyer any and all
instruments, documents, endorsements, assignments, information, materials and
other papers that may be reasonably required to (i) transfer to Buyer certain
Assets (as defined in the Xxxx of Sale) being acquired by Buyer pursuant to the
Agreement, including loans and the collateral therefor to the extent of First
Southern's interest in such collateral and files relating to such loans, (ii)
enable Buyer to xxxx, collect, service and administer the loans transferred
thereby and (iii) give full force and effect to the intent and purposes of the
Xxxx of Sale.
NOW, THEREFORE, for good and valuable consideration, receipt of which
is hereby acknowledged, First Southern hereby appoints and authorizes for a
period of two (2) years from the date hereof, the President or any Vice
President, or the Secretary or any Assistant Secretary, of Buyer as its
attorney-in-fact solely for the purpose of endorsing, and recording, pursuant to
the Xxxx of Sale and/or the Agreement, any and all instruments, documents,
endorsements, assignments, information, materials, and any other papers
including, but not limited to, certificates of title for vehicles and similar
documents (collectively, the "Collateral Instruments"), provided such limited
power of attorney is not intended to and does not convey to Buyer any right to
endorse or record any Collateral Instruments relating to collateral other than
collateral transferred pursuant to the Xxxx of Sale as described in the
preceding paragraph.
FIRST SOUTHERN BANK
By:
----------------------------
Name: B. Xxxx Xxxxxxx
Title: President and CEO
45
STATE OF ALABAMA )
)
COUNTY OF )
-----------
I, , a Notary Public in and for said county in
-------------------------
said state, hereby certify that B. Xxxx Xxxxxxx, whose name as President and CEO
of First Southern Bank is signed to the foregoing conveyance, and who is known
to me, acknowledged before me on this date that, being informed of the contents
of the conveyance, he, as such officer and with full authority, executed the
same voluntarily for and as the act of said bank. Given under my hand this
------
day of , 2002.
---------------
My Commission Expires:
---------------------------------------
Notary Public
--------------------
(SEAL)
2
