EXHIBIT 10.15
PURCHASE AND ASSUMPTION AGREEMENT
BETWEEN
NATIONSBANK, N.A. (SOUTH)
AND
ABC BANCORP
PURCHASE AND ASSUMPTION AGREEMENT
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ARTICLE I - TRANSFER OF ASSETS AND LIABILITIES
Section 1.1. Transferred Assets
Section 1.2. Purchase Price
Section 1.3. Deposit Liabilities
Section 1.4. Loans Transferred
Section 1.5. Safe Deposit Business
Section 1.6. Employee Matters
Section 1.7. Records and Data Processing
Section 1.8. Security
Section 1.9. Taxes and Fees; Proration of Certain Expenses
Section 1.10. Real Property
ARTICLE II - CLOSING AND EFFECTIVE TIME
Section 2.1. Effective Time
Section 2.2. Closing
Section 2.3. Post-Closing Adjustments
ARTICLE III - INDEMNIFICATION
Section 3.1. Seller's Indemnification of Purchaser
Section 3.2. Purchaser's Indemnification of Seller
Section 3.3. Claims for Indemnity
Section 3.4. Limitations on Indemnification
ARTICLE IV - REPRESENTATIONS AND WARRANTIES OF SELLER
Section 4.1. Corporate Organization
Section 4.2. No Violation
Section 4.3. Corporate Authority
Section 4.4. Enforceable Agreement
Section 4.5. No Brokers
Section 4.6. Personal Property
Section 4.7. Real Property
Section 4.8. Condition of Property
Section 4.9. Limitation of Representations and Warrants
ARTICLE V - REPRESENTATIONS AND WARRANTIES OF PURCHASER
Section 5.1. Corporate Organization
Section 5.2. No Violation
Section 5.3. Corporate Authority
Section 5.4. Enforceable Agreement
Section 5.5. No Brokers
ARTICLE VI - OBLIGATIONS OF PARTIES PRIOR TO AND AFTER EFFECTIVE TIME
Section 6.1. Full Access
Section 6.2. Delivery of Magnetic Media Records
Section 6.3. Application for Approval to Effect Purchase of Assets and
Assumption of Liabilities
Section 6.4. Conduct of Business; Maintenance of Properties
Section 6.5. No Solicitation by Seller
Section 6.6. No Solicitation by Purchaser
Section 6.7. Further Actions
Section 6.8. Fees and Expenses
Section 6.9. Breaches with Third Parties
Section 6.10. Insurance
Section 6.11. Public Announcements
Section 6.12. Tax Reporting
ARTICLE VII - CONDITIONS TO PURCHASER'S OBLIGATIONS
Section 7.1. Representations and Warranties True
Section 7.2. Obligations Performed
Section 7.3. No Adverse Litigation
Section 7.4. Regulatory Approval
ARTICLE VIII - CONDITIONS TO SELLER'S OBLIGATIONS
Section 8.1. Representations and Warranties True
Section 8.2. Obligations Performed
Section 8.3. No Adverse Litigation
Section 8.4. Regulatory Approval
ARTICLE IX - TERMINATION
Section 9.1. Methods of Termination
Section 9.2. Procedure Upon Termination
Section 9.3. Payment of Expenses
ARTICLE X - MISCELLANEOUS PROVISIONS
Section 10.1. Amendment and Modification
Section 10.2. Waiver of Extension
Section 10.3. Assignment
Section 10.4. Confidentiality
Section 10.5. Addresses for Notices, Etc.
Section 10.6. Counterparts
Section 10.7. Headings
Section 10.8. Governing Law
Section 10.9. Sole Agreement
Section 10.10. Severability
Section 10.11. Parties in Interest
PURCHASE AND ASSUMPTION AGREEMENT
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THIS AGREEMENT, dated as of February 26, 1997 by and between NATIONSBANK,
N.A.(South) a national banking association having its principal offices in
Atlanta, Georgia("Seller"), and ABC BANCORP a Georgia Corporation having its
principal offices in Moultrie, Georgia ("Purchaser");
W I T N E S S E T H:
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WHEREAS, Seller wishes to divest, upon the terms and conditions set forth
herein, certain assets and certain deposit and liabilities of the following
office (collectively, the "Banking Center"):
Douglas Main
100 South Pearl Avenue
Douglas, Georgia 31533-3836
(Coffee County)
WHEREAS, Purchaser wishes to buy such assets and assume such liabilities
upon the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and mutual agreements
hereinafter set forth, Seller and Purchaser agree as follow:
ARTICLE I
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TRANSFER OF ASSETS AND LIABILITIES
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Section 1.1. Transferred Assets.
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(a) As of the Effective Time (as defined in Section 2.1 below) and upon
the terms and conditions set forth herein, Seller will sell, assign,
transfer, convey and deliver to Purchaser, and Purchaser will purchase
from Seller, all of the following assets associated with the Banking
Center and identified in this Agreement and the Exhibits hereto, and
not otherwise excluded from sale pursuant to the provisions of
Subsection 1.1(b) below:
(1) subject to Section 1.10 hereof, all transferable right, title and
interest of Seller in and to all real estate, fixtures and
improvements thereon at the Banking Center (the "Real Property"),
together with all rights and appurtenances pertaining thereto;
(2) except as provided in section 1.1(b), the furniture, equipment
and other tangible personal property located on or affixed to the
Real Property (the "Personal Property");
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(3) all leases affecting the Banking Center, including all equipment
leases for equipment located at the Banking Center (the
"Equipment Leases");
(4) all safe deposit contracts and leases for the safe deposit boxes
located at the Banking Center as of the Effective Time (the "Safe
Deposit Contracts");
(5) all loans transferred pursuant to Section 1.4;
(6) all coins and currency located at the Banking Center as of the
Effective Time (the "Coins and Currency").
(7) all maintenance, service, operating and other contracts or
agreements relating to the operation of the Banking Center (to
the extent that such contracts or agreements by their terms or
under applicable law are assignable to Purchaser); and
(8) except as otherwise provided herein, all business of the Banking
Center related to the transferred assets referred to in Section
1.1(a) and the goodwill associated therewith.
(b) Excluded from the assets, properties and rights being transferred,
conveyed and assigned to Purchaser under this Agreement are the assets
listed on Exhibit 1.1(b) hereto, debit and credit card merchant
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services agreements related to customers of the Banking Center, assets
related to Seller's group banking program, Seller's rights in and to
the name "NationsBank, N.A." and any of Seller's corporate logos,
trademarks, trade names, signs, paper stock, forms and other supplies
containing any such logos, trademarks or trade names (the "Excluded
Assets"). Seller shall coordinate with Purchaser to remove the
Excluded Assets from the Banking Center on or prior to the Effective
Time. Seller shall remove the Excluded Assets at its own cost and,
apart from making any repairs necessitated by avoidable material
damage to the Real Property or Seller's negligence in removing the
Excluded Assets, Seller shall be under no obligation to restore the
Banking Center premises to their original condition, which shall be
the responsibility of Purchaser.
Section 1.2. Purchase Price.
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(a) As consideration for the purchase of the Banking Center, Purchaser
shall pay Seller a purchase price equal to the sum of the following:
(1) Two times Net Book Value (as defined in Section 1.2(d) hereof) as
of the Effective Time for the Personal Property at the Banking
Center;
(2) Two times tax value as of the Effective Time for the Real
Property;
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(3) A premium for the Deposit Liabilities (as defined in Section
1.3(a) hereof) and franchise value related to the Banking Center
equal to 9.15% of the Deposit Liabilities;
(4) The Net Book Value (as defined in Section 1.2(d) hereof),
including accrued interest, for the Loans as set forth in Section
1.4 hereof; and
(5) The face amount of the Coins and Currency.
(b) In addition, Purchaser shall assume, as of the Effective Time, all of
the duties, obligations and liabilities of Seller relating to any Real
Property or building leases, the Equipment Leases, the Safe Deposit
Contracts, the Deposit Liabilities (including all accrued interest
relating thereto) and all assignable operating contracts of the
Banking Center (excluding any master contracts); provided, that any
cash items paid by Seller and not cleared prior to the Effective Time
shall be the responsibility of Seller, subject to the terms of Section
1.3 below.
(c) Seller shall prepare a balance sheet (the "Pre-Closing Balance Sheet")
in accordance with generally accepted accounting principles
consistently applied as of a date not earlier than 30 calender days
prior to the Effective Time anticipated by the parties (the "Pre-
Closing Balance Sheet Date") reflecting the assets to be sold and
assigned hereunder and the liabilities to be transferred and assumed
hereunder all based on the book value of such assets and liabilities;
Seller agrees to pay to Purchaser at the Closing (as defined in
Section 2.1 hereof), in immediately available funds, the excess
amount, if any, of the amount of Deposit Liabilities assumed by
Purchaser pursuant to subsection (b) above as reflected by the Pre-
Closing Balance Sheet over the aggregate purchase price computed in
accordance with subsection (a) above, as reflected by the Pre-Closing
Balance Sheet. Purchaser agrees to pay Seller at the Closing, in
immediately available funds, the excess, if any, of the aggregate
purchase price computed in accordance with subsection (a) above, as
reflected by the Pre-Closing Balance Sheet over the amount of Deposit
Liabilities assumed by Purchaser pursuant to subsection (b) above as
reflected by the Pre-Closing Balance Sheet. Amounts paid at Closing
shall be subject to subsequent adjustment based on the Post-Closing
Balance Sheet (as defined in Section 2.3 hereof).
(d) For purposes of this Agreement, "Net Book Value" means the value
determined from the Post-Closing Balance Sheet; provided, however,
that such value shall not include the loan loss reserve attributable
to any Loan (as defined in Section 1.4 hereof) or any general reserve.
Section 1.3. Deposit Liabilities.
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(a) "Deposit Liabilities" shall mean all of Seller's duties, obligations
and liabilities relating to the deposit accounts located at the
Banking Center as of the Effective Time (including accrued but unpaid
or uncredited interest thereon).
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(b) Except for those liabilities and obligations specifically assumed by
Purchaser under 1.2(b) above, Purchaser is not assuming any other
liabilities or obligations. Liabilities not assumed include, but are
not limited to, the following:
(1) Seller's cashier checks, letters of credit, money orders,
interest checks and expense checks issued prior to closing,
consignments of U.S. Government "E" and "EE" bonds and any and
all traveler's checks.
(2) Liabilities or obligations with respect to any litigation, suits,
claims, demands or governmental proceedings commenced or made
known to Seller prior to Closing and related to the Banking
Center.
(3) Deposit accounts associated with lines of credit where the line
of credit is excluded in accordance with Section 1.4(b).
(4) Deposit accounts associated with qualified retirement plans where
Seller is the trustee of such plan or the sponsor of a prototype
plan used by such plan.
(5) Deposit accounts associated with Seller's group banking program,
if any.
(6) Self-directed individual retirement accounts, if any.
(7) Deposit accounts associated with Seller's PC banking program, if
any.
(c) Seller does not represent or warrant that any deposit customers whose
accounts are assumed by Purchaser will become or continue to be
customers of Purchaser after the Effective Time.
(d) Purchaser agrees to pay in accordance with law and customary banking
practices all properly drawn and presented checks, drafts and
withdrawal orders presented to Purchaser by mail, over the counter or
through the check clearing system of the banking industry, by
depositors of the accounts assumed, whether drawn on the checks,
withdrawal or draft forms provided by Seller or by Purchaser, and in
all other respects to discharge, in the usual course of the banking
business, the duties and obligations of Seller with respect to the
balances due and owing to the depositors whose accounts are assumed by
Purchaser.
(e) If, after the Effective Time, any depositor, instead of accepting the
obligation of Purchaser to pay the Deposit Liabilities assumed, shall
demand payment from Seller for all or any part of any such assumed
Deposit Liabilities, Seller shall forward to Purchaser any paper
checks, drafts or withdrawal orders presented to if relating thereto,
and Seller shall not be liable or responsible for making any such
payment; provided, that if Seller shall pay the same, Purchaser agrees
to reimburse Seller for any such payments, and Seller shall not be
deemed to have made any representations or warranties to Purchaser
with respect to any such checks, drafts or withdrawal orders and any
such representations or warranties
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implied by law are hereby expressly disclaimed. Seller and Purchaser shall
make arrangements to provide for the daily settlement with immediately
available funds by Purchaser of checks, drafts, withdrawal orders, returns
and other items presented to and paid by Seller within 60 calendar days
after the Effective Time and drawn on or chargeable to accounts that have
been assumed by Purchaser; provided, however, that Seller shall be held
harmless and indemnified by Purchaser for acting in accordance with such
arrangements.
(f) Purchaser agrees, at its cost and expense, (1) to assign new account
numbers to depositors of assumed accounts, (2) to notify such depositors,
on or before the Effective Time, in a form and on a date mutually
acceptable to Seller and Purchaser, of Purchaser's assumption of Deposit
Liabilities, and (3) to furnish such depositors with checks on the forms of
Purchaser and with instructions to utilize Purchaser's checks and to
destroy unused check, draft and withdrawal order forms of Seller. (If
Purchaser so elects, Purchaser may offer to buy from such depositors their
unused Seller check, draft and withdrawal order forms.) In addition,
subsequent to regulatory approval, Seller will notify its affected
customers by letter of the pending assignment of Seller's deposit accounts
to Purchaser, which notice shall be at Seller's cost and expense and shall
be in a form mutually agreeable to Seller and Purchaser.
(g) Purchaser agrees to pay promptly to Seller an amount equivalent to the
amount of any checks, drafts or withdrawal orders credited to an assumed
account as of the Effective Time that are returned to Seller after the
Effective Time.
(h) As of the Effective Time, Purchaser will assume and discharge Seller's
duties and obligations in accordance with the terms and conditions and
laws, rules and regulations that apply to the certificates, accounts and
other Deposit Liabilities assumed under this Agreement.
(i) As of the Effective Time, Purchaser will maintain and safeguard in
accordance with applicable law and sound banking practices all account
documents, deposit contracts, signature cards, deposit slips, canceled
items and other records related to the Deposit Liabilities assumed under
this Agreement, subject to Seller's right of access to such records as
provided in this Agreement.
(j) Seller will render a final statement to each depositor of an account
assumed under this Agreement as to transactions occurring through the
Effective Time and will comply with all laws, rules and regulations
regarding tax reporting of transactions of such accounts through the
Effective Time; provided, however, that Seller shall not be obligated to
render a final statement on any account not ordinarily receiving periodic
statements in the ordinary course of Seller's business. Seller will be
entitled to impose normal fees and service charges on a per-item basis, but
Seller will not impose periodic fees or blanket charges in connection with
such final statements.
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(k) As of the Effective Time, Purchaser, at its expense, will notify all
Automated Clearing House ("ACH") originators of the transfers and
assumptions made pursuant to the Agreement; provided, however, that
Seller may, at its option, notify all such originators itself (on
behalf of Purchaser) also at the expense of Purchaser. For a period of
60 calendar days beginning on the Effective Time, Seller will honor
all ACH items related to accounts assumed under this Agreement which
are mistakenly routed or presented to Seller. Seller will make no
charge to Purchaser for honoring such items, and will electronically
transmit such ACH data to Purchaser. If Purchaser cannot receive an
electronic transmission, Seller will make available to Purchaser at
Seller's operations center receiving items from the Automated Clearing
House tapes containing such ACH data. Items mistakenly routed or
presented after the 60-day period should be returned to the presenting
party.
(l) As of the Effective Time, Purchaser agrees to use its best efforts to
collect from Purchaser's customers amounts equal to any Visa or
MasterCard charge backs under the MasterCard and Visa Merchant
Agreements between Seller and its customers and amounts equal to any
deposit items returned to Seller after the Effective Time which were
honored by Seller prior to the Effective Time and remit such amounts
so collected to Seller. Purchaser agrees to immediately freeze and
remit to Seller any funds, up to the amount of the charged back or
returned item that had been previously credited by Seller if such
funds are available at the time of notification by Seller to Purchaser
of the charged back or returned item. Notwithstanding the foregoing,
Purchaser shall have no liability or responsibility to remit funds for
any item or charge that has been improperly returned or charged to
Seller. Solely for the purposes of this Section 1.3(l), all references
to Seller shall be deemed to include seller and its assignees.
Section 1.4. Loans Transferred.
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(a) Seller will transfer to Purchaser as of the Effective Time, subject to
the terms and conditions of this Agreement, all of Seller's right,
title and interest in (including all collateral, security agreements,
deeds of trust and financing statements relating thereto) the loans
maintained, serviced and listed in Seller's general ledger as loans of
the Banking Center (collectively, the "Loans"); provided, however, the
Loans shall not include any loans described in subsection (b) below.
Such Loans (as well as any security interest related thereto) shall be
transferred by means of a blanket (collective) assignment and not
individually (except as may be otherwise required by law); provided,
however, that Seller shall prepare and execute one Assignment of Deeds
to Secure Debt, in recordable form, for each county in which deeds of
trust are transferred pursuant to this agreement. Purchaser shall
inform Seller not less than 45 calendar days prior to the Effective
Time of any case in which individual assignments will be required by
law. Seller shall use its best efforts to cooperate with Purchaser to
obtain any such required individual assignment(s) as promptly as
possible. If any such assignment shall not be obtained or if any
attempted assignment would be ineffective or would materially impair
Purchaser's rights under the Loans in
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question so that Purchaser would not in effect acquire the benefit of all
such rights. Purchaser may (but shall not be required to) put such loans
back to Seller upon written notice given within 30 days of Seller's
notification to Purchaser that such assignment cannot be obtained.
(b) Notwithstanding the provisions of subsection (a) above, the Loans shall not
include:
(1) nonaccruals (which term shall include loans in which the collateral
securing same has been repossessed or in which collection efforts have
been instituted or, claim and delivery or foreclosure proceedings have
been filed);
(2) loans 90 calendar days or more past due;
(3) loans upon which insurance has been fore-placed;
(4) loans in connection with which the borrower has filed a petition for
relief under the United States Bankruptcy Code prior to the Effective
Time; or
(5) loans identified by Purchaser in writing 45 calendar days or more
prior to the Effective Time as not being purchased because of failure
to meet the credit standards of Purchaser.
(c) Seller and Purchaser agree that Purchaser will become the beneficiary of
credit life insurance written on direct consumer installment loans and
coverage will continue to be the obligation of the current insurer after
the Effective Time and for the duration of such insurance as provided under
the terms of the policy or certificate. Seller shall (within the bounds of
applicable law) take whatever actions necessary to make Purchaser the named
beneficiary under such issuance policies from and after the Effective Time.
If Purchaser becomes the beneficiary of credit life insurance written on
direct consumer installment loans, Seller and Purchaser agree to cooperate
in good faith to develop a mutually satisfactory method by which the
current insurer will make rebate payments to and satisfy claims of the
holders of such certificates of insurance after the Effective Time. The
parties obligations in this section are subject to any restrictions
contained in existing insurance contracts as well as applicable laws and
regulations. Seller agrees that after the Effective Time it hold and will
promptly transfer and deliver to the Purchaser, from time to time as and
when received by Seller, any cash, checks with appropriate endorsements
(using its best efforts not to convert such checks into cash), or other
property that Seller may receive on or after the Effective Time with
respect to any insurance proceeds covered by this Section 1.4(c), and upon
Purchaser's reasonable request will account to Purchaser for all such
receipts.
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(d) In connection with the transfer of any loans requiring notice to the
borrower, Purchaser and Seller agree to comply with all notice and
reporting requirements of the loan documents or of any law or
regulation.
(e) All Loans transferred to Purchaser shall be valued at their Net Book
Value, such value to include accrued interest.
(f) All Loan will be transferred without recourse and without any
warranties or representations as to their collectibility or the
creditworthiness of any of the obligors of such Loans.
(g) Purchaser will at its expense issue new coupon books for payment of
Loans for which Seller provides coupon books with instructions to
utilize Purchaser's coupons and to destroy coupons furnished by
Seller.
(h) For a period of 30 calendar days after the Effective Time, Seller will
forward to Purchaser loan payments received by Seller. Purchaser shall
reimburse Seller upon demand for checks returned on payments forwarded
to Purchaser; however, to the extent possible, Seller will deduct the
amount of such returned checks from payments received and shall settle
with Purchaser by an official check.
(i) As of the Effective Time, Seller shall transfer and assign all files,
documents and records related to the Loans to Purchaser, and Purchaser
will be responsible for maintaining and safeguarding all such
materials in accordance with applicable law and sound banking
practices.
(j) If the Balance due on any Loan purchased pursuant to this Section 1.4
has been reduced by Seller as a result of a payment by check received
prior to the Effective Time, which item is returned after the
Effective Time, the asset value represented by the Loan transferred
shall be correspondingly increased and an amount in cash equal to such
increase shall be paid by Purchaser to Seller promptly upon demand.
(k) Seller shall grant to Purchaser as of the Effective Time a limited
power of attorney, in substantially the form attached hereto as
Exhibit 1.4(k) (the "Power of Attorney").
Section 1.5. Safe Deposit Business.
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(a) As of the Effective Time, Purchaser will assume and discharge Seller's
obligations with respect to the safe deposit box business at the
Banking Center in accordance with the terms and conditions of
contracts or rental agreements related to such business, and Purchaser
will maintain all facilities necessary for the use of such safe
deposit boxes by persons entitled to use them.
(b) As of the Effective Time, Seller shall transfer and assign the records
related to such safe deposit box business to Purchaser, and Purchaser
shall maintain and
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safeguard all such records and be responsible for granting access to
and protecting the contents of safe deposit boxes at the Banking
Center.
(c) Safe deposit box rental payments (not including late payment fees)
collected by Seller before the Effective Time shall be prorated as of
the Effective Time.
(d) Seller agrees to use its best efforts to obtain any necessary consents
of the holders of the safe deposit boxes, and Seller will hold and
will promptly transfer and deliver to the Purchaser, from time to time
as and when received by Seller, any cash, checks with appropriate
endorsements (using its best efforts not to convert such checks into
cash), or other property that Seller may receive on or after the
Effective Time with respect to any safe deposit box rental payments
relating to the Banking Center and will upon Purchaser's reasonable
request account to Purchaser for all such receipts.
Section 1.6. Employee Matters.
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(a) Purchaser shall offer employment to all employees employed by Seller
at the Banking Center as of the Effective Time (the "Employees"), in
their then current functional positions or substantially equivalent
functional positions at each office with remuneration not less than
that on the date of this Agreement (subject to normal salary
increases) and benefits generally equivalent to current levels,
provided that Purchaser shall not be required to provide any benefits
to Employees that are not provided to similarly situated employees of
Purchaser. Except for Purchaser's retirement plan(s). Employees shall
receive full credit for their prior service with Seller under
Purchaser's benefit plans and policies, including its vacation and
sick leave policies. As of the Effective Time, the Employees and their
dependents, if any, previously covered under Seller's health insurance
plan shall be covered under Purchaser's health insurance plan without
being subject to any pre-existing condition limitations or exclusions
except those excluded under Seller's health insurance plan. Employees
shall not be required to satisfy the deductible and employee payments
required by Purchaser's comprehensive medical and/or dental plans for
the calendar year of the Effective Time to the extent of amounts
previously credited during such calendar year under comparable plans
maintained by Seller. Employees shall receive full credit for their
prior service with Seller for purposes of determining their
participation eligibility and vesting rights under Purchaser's
retirement plan(s) benefits under any defined benefit pension plan
maintained by Purchaser shall accrue from the first day of service
with Purchaser and shall be based on the number of years of service
with Purchaser.
Seller shall be responsible for the payment of all employment
compensation and benefits to the Employees, including, without
limitation, all wages and commissions to the Employees accrued through
the Effective Time; provided that, Seller shall not pay for any unused
vacation days, sick leave or holiday pay as of the Effective Time. By
way of illustration and not in limitation or
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derogation of the foregoing, (i) Seller shall be responsible for all
compensation and the payment of any amounts due to the Employees as of
the Effective Time pursuant to any of Seller's bonus or other similar
incentive plans as a result of the employment of the Employees,
provided that in determining compensation, bonuses and other similar
payments due to the Employees for any period ended on or prior to the
Effective Time, Seller shall, if payment thereof will occur after the
Effective Time, waive any requirement that the Employees be employees
of Seller on the date such compensation, bonuses or other similar
payments are paid; (ii) Seller shall be responsible for reporting to
all governmental authorities all employee-related costs and
liabilities of the Employees accruing prior to the Effective Time,
whether payable on or after the Effective Time to the extent required
by law; (iii) Seller shall be responsible for all incurred but
unreported or unpaid medical claims occurring prior to the Effective
Time; provided that a proper claim if filed with the applicable
benefit plan of Seller within 12 months of the date the claim was
incurred and Seller shall be responsible for the cost associated with
any hospital confinement which commences prior to the Effective Time;
(iv) Purchaser shall become responsible for all cost and liabilities
attributable to the Employees accruing after the Effective Time;
provided, however, that Purchaser shall not be responsible for any
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liabilities arising under Seller's benefit plans; and (v) effective as
of the Effective Time, Seller shall, and hereby does, release all of
the Employees from any employment and/or confidentiality agreement
previously entered into between Seller and such Employees to the
extent (but only to the extent) necessary for Purchaser to operate the
business acquired from Seller hereunder in the same manner as operated
by Seller prior to the Effective Time.
Seller shall cause the NationsBank Pension Plan and The NationsBank
Retirement Savings Plan to be amended effective as of the date of
Closing to fully (100%) vest the accrued benefits thereunder of all
employees of the Seller on the date of Closing who have become
participants in such plans by that time and who terminate their
employment with the Seller as a result of the transactions
contemplated by this Agreement (the "Affected Participants"). Seller
shall cause the NationsBank Pension Plan and The NationsBank
Retirement Savings Plan to pay the Affected Participants their accrued
benefits under such plans when and as provided in such plans, and for
purposes of determining when such benefits become payable, the
Affected Participants shall be deemed to have separated from service
on the date of Closing.
(b) Seller makes no representations or warranties about whether any of the
Employees will remain employed at the Banking Center after the
Effective Time. Seller will use its best efforts to maintain the
Employees as employees of Seller at the Banking Center until the
Effective Time. Any Employee whose employment shall be terminated for
any reason prior to the Effective Time or who shall elect not to be an
employee of Purchaser shall be dealt with by Seller in its sole and
absolute discretion. Seller agrees that, for a period of 12 months
after the Effective Time, it will not solicit for employment any
Employee who remains employed by Purchaser.
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(c) Purchaser agrees for a period of 12 months after the Effective Time it
will not terminate a transferred Employee without paying to such
Employee a severance benefit no less than the applicable severance
benefit set forth in Exhibit 1.6(c).
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Section 1.7. Records and Data Processing.
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(a) As of the Effective Time, Purchaser shall become responsible for
maintaining the files, documents and records referred to in this
Agreement. Purchaser will preserve and safekeep them as required by
applicable law and sound banking practice for the joint benefit of
Seller and Purchaser. After the Effective Time, Purchaser will permit
Seller and its representatives, for reasonable cause, at reasonable
times and upon reasonable notice and at Seller's expense, to examine,
inspect, copy and reproduce any files, documents or records regarding
the assets and liabilities transferred under this Agreement as Seller
deems reasonably necessary.
(b) As of the Effective Time, Seller will permit Purchaser and its
representatives, for reasonable cause, at reasonable times and upon
reasonable notice and at Purchaser's expense, to examine, inspect,
copy and reproduce files, documents or records retained by Seller
regarding the assets and liabilities transferred under this Agreement
as Purchaser deems reasonably necessary.
(c) It is understood that certain of Seller's records may be available
only in the form of photocopies, film copies or other non-original and
non-paper media.
Section 1.8. Security.
- ------------ --------
As of the Effective Time, Purchaser shall be solely responsible for the
security of and insurance on all persons and property located in or about the
Banking Center.
Section 1.9. Taxes and Fees: Proration of Certain Expenses.
- ------------ ---------------------------------------------
Purchaser shall be responsible for the payment of all fees and taxes
related to this transaction; except that Purchaser shall not be responsible for,
or have any liability with respect to, taxes on any income to Seller arising out
of this transaction and Seller agrees that it shall pay, or represents that it
has paid, in a timely manner any and all such income taxes. Except as otherwise
set forth herein (and expressly including pro-rated real and personal property
taxes). Purchaser shall not be responsible for any tax liabilities of Seller
arising from the business or operations of the Banking Center before the
Effective Time, and Seller shall not be responsible for any tax liabilities of
Purchaser arising from the business or operations of the Banking Center after
the Effective Time. Utility payments, telephone charges, real property taxes,
personal property taxes, rent, salaries, deposit insurance premiums, other
ordinary operating expenses of the Banking Center and other expenses related to
the liabilities assumed or assets purchased hereunder shall be prorated between
the parties as of the Effective Time. To the extent any such item has been
prepaid by Seller for a period extending beyond the Effective Time, there shall
be a proportionate monetary adjustment in favor of Seller.
11
Section 1.10. Real Property.
- ------------ -------------
(a) Title Matters.
-------------
(i) Seller agrees to deliver to Purchaser as soon as reasonably
possible after the execution of this Agreement copies of all
title information in possession of Seller, including, but not
limited to, title insurance policies, attorneys' opinions on
title, surveys, covenants, deeds, notes and mortgages and
easements relating to the Real Property. Such delivery shall
constitute no warranty by Seller as to the accuracy or
completeness thereof or that Purchaser is entitled to rely
thereon.
(ii) Purchaser agrees to notify Seller in writing within 45 calendar
days after the date of this Agreement of any mortgages,
pledges, material liens, encumbrances, reservations, tenancies,
encroachments, overlaps or other title exceptions (including
but not limited to deeds to secure debt and use financing
statements) or zoning or similar land use violations (excluding
legal but nonconforming uses) related to the Real Property to
which Purchaser reasonably objects (the "Title Defects").
Purchaser agrees that Title Defects shall not include real
property taxes not yet due and payable and easements,
restrictions, tenancies, and rights of way which do not
materially interfere with the use of the Real Property as a
Banking Center. Seller shall make a good faith effort to
correct any such Title Defect to Purchaser's reasonable
satisfaction at least 10 calendar days prior to Closing;
provided, however, that Seller shall not be obligated to bring
any lawsuit or make any payments of money (except to pay liens
that Seller does not dispute in good faith) to cure a Title
Defect. If Seller is unable or unwilling to cure any such Title
Defects to Purchaser's reasonable satisfaction, Purchaser shall
have the option either to terminate this Agreement with respect
to the Banking Center or Banking Center at which the Real
Property having such Title Defects are located or to receive
title in its then existing condition. Upon termination of this
Agreement with respect to any Banking Center or Banking Center
pursuant to this Section 1.10, neither party shall have any
further liability to the other party under this Agreement with
respect to such Banking Center or Banking Center and the
purchase price shall be adjusted accordingly.
(iii) Purchaser shall have the right to update title matters at
Closing for any changes which may have arisen between the date
of Purchaser's original title search. If such update indicates
that any Title Defects have been placed of record since the
date of Purchaser's original title search, and Purchaser
reasonably objects thereto, then Seller may elect to delay the
Closing with respect to the affected Banking Center or Banking
Center for up to 30 calendar days while Seller makes a good
faith effort to cure any such Title Defect to Purchaser's
reasonable satisfaction; provided
12
that Seller shall not be obligated to bring any lawsuit or make
any payments of money (except to pay liens that Seller does not
dispute in good faith) to cure a Title Defect. If Seller is
unable or unwilling to cure any such Title Defect within such 30
day period, Purchaser shall have the option to receive title in
the then existing condition or to terminate this Agreement with
respect to such Banking Center or Banking Center, in which event
neither party shall have any further liability to the other party
under this Agreement with respect to such Banking Center or
Banking Center and the purchase price shall be adjusted
accordingly.
(b) Environmental Matters.
---------------------
Purchaser shall have the right to conduct such investigation of
environmental matters with respect to the Real Property as it may
reasonably require and shall report the result of any such
investigation, together with its objections to any material violation
of applicable environmental law which impacts the Real Property or the
use thereof as a banking center, if any, to Seller no later than 45
calendar days after the date of this Agreement; provided, however,
that without the prior written consent of Seller, Purchaser shall not
conduct any ground water monitoring or install any test well or
undertake any other investigation which requires a permit or license
from, or the reporting of the investigation or the results thereof to,
a local or state environmental regulatory authority or the United
Stated Environmental Protection Agency. If Purchaser objects to any
material violation of applicable environmental law which impacts the
Real Property or the use thereof as a banking center, Seller shall
have the right, but not the obligation, to delay the Closing for up
to 30 calendar days while Seller makes a good faith effort to cure
any such material violation of law which is discovered by Purchaser's
investigation. If Seller either refuses to give such written consent
or refuses to cure any material violation of applicable environmental
law relating to the Real Property or the use thereof as a banking
center, Purchaser shall have the option either to purchase the Real
Property in its then existing condition or to terminate this Agreement
with respect to the Banking Center at which the Real Property affected
by such refusal is located in which event neither party shall have any
further liability to the other under this Agreement with respect to
such Banking Center and the purchase price shall be adjusted
accordingly.
ARTICLE II
----------
CLOSING AND EFFECTIVE TIME
--------------------------
Section 2.1. Effective Time.
- ----------- --------------
The purchase of assets and assumption of liabilities provided for in this
Agreement shall occur at a closing (the "Closing") to be held at the offices of
Seller in Atlanta, Georgia at 10:00 a.m. local time within 31 calendar days
following the date of all approvals by regulatory agencies and after all
statutory waiting periods have expired, or at such other place, time or date on
which the parties shall mutually agree. The effective time (the "Effective
Time") shall
13
be 2:00 p.m., local time, on the day on which the Closing occurs. It is
understood and agreed that the Closing shall occur on a Thursday.
Section 2.2. Closing.
- ----------- -------
(a) All actions taken and documents delivered at the Closing shall be
deemed to have been taken and executed simultaneously, and no action
shall be deemed taken nor any document delivered until all have been
taken and delivered.
(b) At the Closing, subject to all the terms and conditions of this
Agreement, Seller shall deliver to Purchaser or, in the case of
subsections (b)(5), (6), (7), (9) and (10), make reasonably
available to Purchaser.
(1) A limited warranty deed transferring title to the Real Property
and an Owner's Affidavit in form satisfactory to a title company
to delete the standard exceptions from such company's title
insurance policy, including, without limitation, mechanics and
materialmen's liens and rights of parties in possession;
(2) A Bill of Sale, in substantially the form attached hereto as
Exhibit 2.2(b)(2) (the "Bill of Sale"), transferring to Purchaser
-----------------
all of Seller's interest in the Personal Property and in the
Loans;
(3) An Assignment and Assumption Agreement, in substantially the form
attached hereto as Exhibit 2.2(b)(3) (the "Assignment and
-----------------
Assumption Agreement"), assigning Seller's interest in the
Equipment Leases, the Safe Deposit Contracts, and the Deposit
Liabilities;
(4) Consents from third persons that are required to effect the
assignments set forth in the Assignment and Assumption Agreement,
including, but not limited to, the lessors under the Equipment
Leases (to the extent required by such leases);
(5) Seller's keys to the safe deposit boxes and Seller's records
related to the safe deposit box business at the Banking Center;
(6) Seller's files and records related to the Loans;
(7) Seller's records related to the deposit accounts assumed by
Purchaser;
(8) Immediately available funds in the net amount shown as owing to
Purchaser by Seller on the Closing Statement, if any;
(9) The Coins and Currency;
(10) Such of the other assets to be purchased as shall be capable of
physical delivery;
14
(11) A certificate of a proper officer of Seller, dated as of the date of
Closing, certifying to the fulfillment of all conditions which are
the obligation of Seller and that all of the representations and
warranties of Seller set forth in this Agreement remain true and
correct in all material respects as of Effective Time;
(12) Certified copies of (A) the Articles of Association and Bylaws of
Seller and (B) a resolution of the Board of Directors of Seller, or
its Executive Committee, approving the sale of the Banking Center
contemplated hereby;
(13) Such certificates and other documents as Purchaser and its counsel
may reasonably require to evidence the receipt by Seller of all
necessary corporate and regulatory authorizations and approvals for
the consummation of the transactions provided for in this Agreement;
(14) A Closing Statement, substantially in the form attached hereto as
Exhibit 2.2(b)(14) (the "Closing Statement");
------------------
(15) An affidavit of Seller certifying that Seller is not a "foreign
person" as defined in the federal Foreign Investment in Real
Property Tax Act of 1980; and
(16) The Power of Attorney.
It is understood that the items listed in subsections b(5) and (9)
shall be transferred after the Banking Center has closed for
business on the date of Closing and that the records listed in
subsections b(6) and (7) will be transferred as soon as possible
after the Closing, but in no event more than five business days
after the Closing.
(c) At the Closing, subject to all the terms and conditions of this Agreement,
Purchaser shall deliver to Seller.
(1) The Assignment and Assumption Agreement;
(2) A certificate and receipt acknowledging the delivery and receipt of
possession of the property and records referred to in this
Agreement;
(3) Immediately available funds in the net amount shown as owing to
Seller by Purchaser on the Closing Statement, if any;
(4) A certificate of a proper officer of Purchaser, dated as of the Date
of Closing, certifying to the fulfillment of all conditions which
are the obligation of Purchaser and that all of the representations
and warranties of Purchaser set forth in this Agreement remain true
and correct in all material respects as of the Effective Time;
15
(5) Certified copies of (A) the Articles of Incorporation and Bylaws
of the Purchaser and (B) a resolution of the Board of Directors,
or its Executive Committee, of Purchaser approving the purchase
of the Banking Center contemplated hereby;
(6) Such certificates and other documents as Seller and its counsel
may reasonably require to evidence the receipt of Purchaser of
all necessary corporate and regulatory authorizations and
approvals for the consummation of the transactions provided for
in this Agreement; and
(7) The Closing Statement.
(d) All instruments, agreements and certificates described in this Section
2.2 shall be in form and substance reasonably satisfactory to the
parties' respective legal counsel and Purchaser's title company.
Section 2.3 Post-Closing Adjustments.
- ------- ----------------------------
(a) Not later than 15 business days after the Effective Time (the "Post-
Closing Balance Sheet Delivery Date"), Seller shall deliver to
Purchaser a balance sheet dated as of the Effective Time and prepared
in accordance with generally accepted accounting principles
consistently applied reflecting the assets sold and assigned and the
liabilities transferred and assumed hereunder (the "Post-Closing
Balance Sheet"). Additionally, Seller shall deliver to Purchaser a
list of loans purchased, individually identified by account number,
which list shall be appended to the Bill of Sale. Seller shall afford
Purchaser and its accountants and attorneys the opportunity to review
all work papers and documentation used by Seller in preparing the
Post-Closing Balance Sheet. Within 15 business days following the
Post-Closing Balance Sheet Delivery Date (the "Adjustment Payment
Date"), Seller and Purchaser shall meet at the offices of Seller in
Atlanta, Georgia to effect the transfer of any funds as may be
necessary to reflect changes in such assets and liabilities between
the Pre-Closing Balance Sheet and the Post-Closing Balance Sheet
together with interest thereon computed from the Effective Time to the
Adjustment Payment Date at the applicable Federal Funds Rate (as
hereinafter defined).
(b) In the event that a dispute arises as to the appropriate amounts to be
paid to either party on the Adjustment Payment Date, each party shall
pay to the other on such Adjustment Payment Date all amounts other
than those as to which a dispute exists. Any disputed amounts retained
by a party which are later found to be due to the other party shall be
paid to such other party promptly upon resolution with interest
thereon from the Adjustment Payment Date to the date paid at the
applicable Federal Funds Rate.
16
(c) The Federal Funds Rate shall be the mean of the high and low rates
quoted for Federal Funds in the Money Rates Column of the Wall Street
Journal adjusted as such mean may increase or decrease during the
period between the Effective Time and the Adjustment Payment Date.
ARTICLE III
-----------
INDEMNIFICATION
---------------
Section 3.1. Seller's Indemnification of Purchaser.
- --------------------------------------------------
Seller shall indemnify, hold harmless and defend Purchaser from and against
any breach by Seller or inaccuracy of any representation or warranty contained
herein and all claims, losses, liabilities, demands and obligations, including
reasonable attorneys' fees and expenses, arising out of any actions, suits or
proceedings commenced prior to the Effective Time (other than proceedings to
prevent or limit the consummation of this transaction) relating to operations at
the Banking Center, and, except as otherwise provided in this Agreement, Seller
shall further indemnify, hold harmless and defend Purchaser from and against all
claims, losses, liabilities, demands and obligations, including reasonable
attorneys' fees and expenses, real estate taxes, intangibles and franchise
taxes, sales and use taxes, social security and unemployment taxes, all
accounts payable and operating expenses (including salaries, rents and utility
charges) incurred by Seller prior to the Effective Time and which are claimed or
demanded on or after the Effective Time, or which arise out of any actions,
suits or proceedings commenced on or after the Effective Time and which relate
to operations at the Banking Center prior to the Effective Time.
Section 3.2. Purchaser's Indemnification of Seller.
- --------------------------------------------------
Purchaser shall indemnify, hold harmless and defend Seller from and against
any breach by Purchaser or inaccuracy of any representation or warranty
contained herein and all claims, losses, liabilities, demands and obligations,
including reasonable attorneys' fees and expenses, real estate taxes,
intangibles and franchise taxes, sales and use taxes, social security and
unemployment taxes, all accounts payable and operating expenses (including
salaries, rents and utility charges), which Seller may receive, suffer or incur
in connection with operations and transactions occurring after the Effective
Time and which involve the Banking Center, the assets transferred or the
liabilities assumed pursuant to this Agreement.
Section 3.3. Claims for Indemnity.
- ---------------------------------
(a) A claim for indemnity under Sections 3.1 or 3.2 of this Agreement may
be made by the claiming party at any time prior to 12 months after the
Effective Time by the giving of written notice thereof to the other
party. Such written notice shall set forth in reasonable detail the
basis upon which such claim for indemnity is made. In the event that
any such claim is made within such prescribed 12 month period, the
indemnity relating to such claim shall survive until such claim
17
is resolved. Claims not made within such 12 month period shall cease
and no indemnity shall be made therefor.
(b) In the event that any person or entity not a party to this Agreement
shall make any demand or claim or file or threaten to file any
lawsuit, which demand, claim or lawsuit may result in any liability,
damage or loss to one party hereto of the kind for which such party is
entitled to indemnification pursuant to Section 3.1 or 3.2 hereof,
then, after written notice is provided by the indemnified party to the
indemnifying party of such demand, claim or lawsuit, the indemnifying
party shall have the option, at its cost and expense, to retain
counsel for the indemnified party to defend any such demand, claim or
lawsuit. In the event that the indemnifying party shall fail to
respond within five calendar days after receipt of such notice of any
such demand, claim or lawsuit, then the indemnified party shall retain
counsel and conduct the defense of such demand, claim or lawsuit as it
may in its discretion deem proper, at the cost and expense of the
indemnifying party. In effecting the settlement of any such demand,
claim or lawsuit, an indemnified party shall act in good faith, shall
consult with the indemnifying party and shall enter into only such
settlement as the indemnifying party shall approve (the indemnifying
party's approval will be implied if it does not respond within ten
calendar days of its receipt of the notice of such settlement offer).
Section 3.4. Limitations on Indemnification.
- -------------------------------------------
Notwithstanding anything to the contrary contained in this Article III, no
indemnification shall be required to be made by either party until the aggregate
amount of all such claims by a party exceeds $50,000. Once such aggregate amount
exceeds $50,000, such party shall thereupon be entitled to indemnification for
all amounts in excess of such $50,000. IN ADDITION, THE PARTIES SHALL HAVE NO
OBLIGATIONS UNDER THIS ARTICLE III FOR ANY CONSEQUENTIAL LIABILITY, DAMAGE OR
LOSS THE INDEMNIFIED PARTY MAY SUFFER AS THE RESULT OF ANY DEMAND, CLAIM OR
LAWSUIT.
ARTICLE IV
----------
REPRESENTATIONS AND WARRANTIES OF SELLER
----------------------------------------
Seller hereby represents and warrants to Purchaser as follows, which
representations and warranties shall survive the Effective Time for a period of
12 months:
Section 4.1. Corporate Organization.
- -----------------------------------
Seller is a national banking association duly organized, validly existing
and in good standing under the laws of the United States. Seller has the
corporate power and authority to own its properties, to carry on its business as
currently conducted and to effect the transactions contemplated herein.
18
Section 4.2. No Violation.
- ----------- ------------
The Banking Center has been operated in all material respects in accordance
with applicable laws, rules and regulations. Neither the execution and delivery
of this Agreement, nor the consummation of the transactions contemplated herein,
will violate or conflict with (a) Seller's Articles of Association or Bylaws;
(h) any material provision of any material agreement or any other material
restriction of any kind to which Seller is a party or by which Seller is bound;
(c) any material statute, law, decree, regulation or order of any governmental
authority; or (d) any material provision which will result in a default under,
or which cause the acceleration of the maturity of, any material obligation or
loan to which Seller is a party.
Section 4.3. Corporate Authority.
- ----------- -------------------
The execution and delivery of this Agreement, and the consummation of the
transactions contemplated herein, have been duly authorized by Seller's Board of
Directors (or the Executive Committee thereof). No further corporate
authorization is necessary for Seller to consummate the transactions
contemplated hereunder.
Section 4.4. Enforceable Agreement.
- ----------- ---------------------
This Agreement has been duly authorized, executed and delivered by Seller
and is the legal, valid and binding agreement of Seller, enforceable in
accordance with its terms.
Section 4.5. No Brokers.
- ----------- ----------
All negotiations relative to this Agreement and the transactions
contemplated hereby have been carried on by Seller and Purchaser, and there has
been no participation or intervention by any other person, firm or corporation
employed or engaged by or on behalf of Seller in such a manner as to give rise
to any valid claim against Seller or Purchaser for a brokerage commission,
finder's fee or like commisssion.
Section 4.6. Personal Property.
- ----------- -----------------
Seller owns, and will convey to Purchaser at the Closing, all of Seller's
right, title and interest to all of the Personal Property free and clear of any
claims, mortgages, liens, security interests, pledges or encumbrances of any
kind, except as may otherwise be set forth in this Agreement.
Section 4.7. Real Property.
- ----------- -------------
Seller makes the following representations regarding the Real Property:
(a) Except as set forth in Exhibit 4.7, Seller has no knowledge of any
condemnation proceedings pending against the Real Property.
(b) Except as set forth in Exhibit 4.7, Seller has not entered into any
agreement regarding the Real Property, and the Real Property is not
subject to any claim,
19
demand, suit, lien, proceeding or litigation of any kind, pending or
outstanding, or to the knowledge of Seller, threatened or likely to be
made or instituted, which would in any way be binding upon Purchaser
or its successors or assigns or materially affect or limit Purchaser's
or its successors' or assigns' use and enjoyment of the Real Property
or which would materially limit or restrict Purchaser's right or
ability to enter into this Agreement and consummate the sale and
purchase contemplated hereby.
(c) Seller has or will have at Closing good and marketable fee simple
title to the Real Property and, at Closing, will own the Real Property
outright subject to no mortgage, pledge, lien, security interest,
lease, charge, encumbrance or conditional sales or other title
retention agreement except for real property taxes not yet due and
payable, and easements and rights of way which do not materially
interfere with the use of the Real Property as a Banking Center.
Purchaser's sole remedy for a breach of the representations and
warranties in this Section 4.7 shall be to elect not to purchase a
Banking Center as provided in Section 1.10(a)(iii).
Section 4.8. Condition of Property.
- ----------- ---------------------
The Real Property and Personal Property to be purchased by Purchaser
hereunder are sold AS IS, WHERE IS, with no warranties or representations
whatsoever, except as may be expressly represented or warranted in this
Agreement.
Section 4.9. Limitation of Representations and Warranties.
- ----------- --------------------------------------------
Except as may be expressly represented or warranted in this Agreement by
Seller, Seller makes no representations or warranties whatsoever with regard to
any asset being transferred to Purchaser or any liability or obligation being
assumed by Purchaser or as to any other matter or thing.
ARTICLE V
---------
REPRESENTATIONS AND WARRANTIES OF PURCHASER
-------------------------------------------
Purchaser hereby represents and warrants to Seller as follows, which
representations and warranties shall survive the Effective Time for a period of
12 months:
Section 5.1. Corporate Organization.
- ----------- ----------------------
Purchaser is a corporation duly organized, validly existing and in good
standing under the laws of the state of Georgia. Purchaser has the corporate
power and authority to own the properties being acquired, to assume the
liabilities being transferred and to effect the transactions contemplated
herein.
20
Section 5.2. No Violation.
- ------------ ------------
Neither the execution and delivery of this Agreement, nor the consummation
of the transactions contemplated herein, will violate or conflict with (a) the
Articles of Incorporation or Bylaws of Purchaser; any material provision of any
material agreement or any other material restriction of any kind to which
Purchaser is a party or by which Purchaser is bound; (b) any material statute,
law, decree, regulation or order of any governmental authority; or (d) any
material provision which will result in a default under, or cause the
acceleration of the maturity of, any material obligation or loan to which
Purchaser is a party.
Section 5.3. Corporate Authority.
- ------------ -------------------
The execution and delivery of this Agreement, and the consummation of the
transactions contemplated herein, have been duly authorized by the Board of
Directors (or Executive Committee) of Purchaser. No further corporate
authorization on the part of Purchaser is necessary to consummate the
transactions contemplated hereunder.
Section 5.4. Enforceable Agreement.
- ------------ --------------------
This Agreement has been duly authorized, executed and delivered by
Purchaser and is the legal, valid and binding agreement of Purchaser enforceable
in accordance with its terms.
Section 5.5. No Brokers.
- ------------ ---------
All negotiations relative to this Agreement and the transactions
contemplated hereby have been carried on by Seller and Purchaser, and there has
been no participation or intervention by any other person, firm or corporation
employed or engaged by or on behalf of Purchaser in such a manner as to give
rise to any valid claim against Seller or Purchaser for a brokerage commission,
finder's fee or like commission.
ARTICLE VI
----------
OBLIGATIONS OF PARTIES PRIOR TO AND AFTER EFFECTIVE TIME
--------------------------------------------------------
Section 6.1. Full Access.
- ------------ ----------
Seller shall afford to the officers and authorized representatives of
Purchaser, upon prior notice and subject to Seller's normal security
requirements, access to the properties, books and records pertaining to the
Banking Center in order that Purchaser may have full opportunity to make
reasonable investigations, at reasonable times without interfering with the
normal business and operations of the Banking Center, or the affairs of Seller
relating to the Banking Center. The officers of Seller shall furnish Purchaser
with one standard set of such additional financial and operating data and other
information as to its business and properties at the Banking Center, or where
otherwise located, as Purchaser may, from time to time, reasonably request and
as shall be available, including, without limitation, information required for
inclusion in all governmental applications necessary to effect this transaction.
Any additional copies of such information shall be produced and provided at
Purchaser's expense. Nothing in this Section 6.1 shall require Seller to breach
any obligation of confidentiality or to reveal any
21
proprietary information, trade secrets or marketing or strategic plans. Records,
including credit information, relating to the Loans will be made available for
review by Purchaser no later than 30 calendar days after the execution of this
Agreement. It is understood that certain of Seller's records may be available
only in the form of photocopies, film copies or other non-original and non-paper
media.
Section 6.2. Delivery of Magnetic Media Records.
- ----------- ----------------------------------
Seller shall prepare at its expense and make available to Purchaser at
Seller's data processing center magnetic media records in Seller's field format
not later than 60 calendar days after the execution of this Agreement and
further shall make available to Purchaser such records updated as of the Closing
Date, which records shall contain the information related to the items described
in Subsections 2.2(b)(6) and (b)(7) above. Such updated records shall be made
available at such time after Closing as agreed to by the parties. At its option,
Seller may provide such reports in paper format instead of magnetic media
format.
Section 6.3. Application for Approval to Effect Purchase of Assets and
- ----------- ---------------------------------------------------------
Assumption of Liabilities.
- -------------------------
Within 30 calendar days following the execution of this Agreement,
Purchaser shall prepare and file applications required by law with the
appropriate regulatory authorities for approval to purchase and assume the
aforesaid assets and liabilities, to establish branches at the locations of the
Banking Center, and to effect in all other respects the transactions
contemplated herein. Purchaser agrees to process such applications in a diligent
manner and on a priority basis and to provide Seller promptly with a copy of
such applications as filed (except for any confidential portions thereof) and
all material notices, orders, opinions, correspondence and other documents with
respect thereto, and to use its best efforts to obtain all necessary regulatory
approvals. On the date hereof, Purchaser knows of no reason why such
applications should not receive all such approvals. Purchaser shall promptly
notify Seller upon receipt by Purchaser of notification that any application
provided for hereunder has been denied. Seller shall provide such assistance and
information to Purchaser as shall be reasonably necessary for Purchaser to
comply with the requirements of the applicable regulatory authorities.
Section 6.4. Conduct of Business: Maintenance of Properties.
- ----------- ----------------------------------------------
From the date hereof until the Effective Time, Seller covenants that it
will:
(a) Carry on the business of the Banking Center substantially in the same
manner as on the date hereof, use all reasonable efforts to preserve
intact its current business organization and preserve its business
relationships with depositors, customers and others having business
relationships with it and whose accounts will be retained at the
Banking Center, provided, however, that Seller need not, in its sole
discretion, advertise or promote new or substantially new customer
services in the principal market area of the Banking Center.
22
(b) Cooperate with and assist Purchaser in assuring the orderly transition
of the business of the Banking Center to Purchaser from Seller; and
(c) Maintain the Real Property and the Personal Property in its current
condition, ordinary wear and tear excepted.
Section 6.5. No Solicitation by Seller.
- ----------- -----------------------
For a period of 12 months after the Effective Time, Seller will not
specifically target and solicit customers of the Banking Center utilizing any
customer or mailing list which consists primarily of customers of the Banking
Center, provided, however, these restrictions shall not restrict general mass
mailings, telemarketing calls, statement stuffers and other similar
communications directed to all the current customers of Seller or Seller's
affiliates, or to the public or newspaper, radio or television advertisements of
a general nature or otherwise prevent Seller from taking such actions as may be
required to comply with any applicable federal or state laws, rules or
regulations. In addition, these restrictions shall not restrict (a) the
solicitation of (i) commercial accounts normally established and maintained in
offices other than the Banking Center or (ii) any credit or debit card customer
which has an agreement with Seller or Seller's venture partner, Unified Merchant
Services, for merchant services or (b) the ability of Seller to install, operate
and serve customers needs through automated teller machines at any location. It
is understood that holders of the Deposit accounts described in Sections 1.3(b)
3-7 hereof shall not be deemed customers of the Banking Center for the purposes
of this Section 6.5.
Section 6.6. No Solicitation by Purchaser.
- ----------- ----------------------------
Purchaser shall not solicit any customer which has an agreement with
Seller or Seller's venture partner, Unified Merchant Services, for merchant
services during the term of any such agreements, including any renewal term
thereunder, or otherwise interfere in any way with Seller or Seller's venture
partner, Unified Merchant Services, relationship with any such customer.
Section 6.7. Further Actions.
- ----------- ---------------
The parties hereto shall execute and deliver such instruments and take
such other actions as the other party may reasonably require in order to carry
out the intent of this Agreement.
Section 6.8. Fees and Expenses.
- ----------- -----------------
Purchaser shall be responsible for the costs of all title examinations,
title insurance fees, surveys, its own attorneys' and accountants' fees and
expenses, recording costs, transfer fees, and other expenses arising in
connection therewith. Seller shall be responsible for its own attorneys' and
accountants' fees and expenses related to this transaction.
23
Section 6.9. Breaches with Third Parties.
- ----------- ---------------------------
If the assignment of any material claim, contract, license, lease,
commitment, sales order or purchase order (or any material claim or right or any
benefit arising thereunder) (collectively, "Commitments") without the consent of
a third party would constitute a breach thereof or materially affect the rights
of Purchaser or Seller thereunder, then such assignment is hereby made subject
to such consent or approval being obtained. Seller, at its expense, shall use
its best efforts to obtain any such assignments as promptly as possible. If any
such assignments shall not be obtained or if any attempted assignment would be
ineffective or would materially impair Purchaser's rights under the Commitments
in question so that Purchaser would not in effect acquire the benefit of all
such rights, Seller, to the maximum extent permitted by law and the specific
Commitments and at Seller's expense, shall cooperate with Purchaser, to the
maximum extent permitted by law and the specific Commitment, is devising a
reasonable arrangement designed to provide such benefits to Purchaser.
Section 6.10. Insurance.
- ------------ ---------
As of the Effective Time, Seller will discontinue its insurance coverage
maintained in connection with the Banking Center and the activities conducted
thereon. Purchaser shall be responsible for all insurance protection for the
Banking Center premises and the activities conducted thereon immediately
following the Effective Time. Pending the Closing, risk of loss shall be the
responsibility of Seller.
Section 6.11. Public Announcements.
- ------------ --------------------
Seller and Purchaser agree that, from the date hereof, neither shall make
any public announcement or public comment, regarding this Agreement or the
transactions contemplated herein without first consulting with the other party
hereto and reaching an agreement upon the substance and timing of such
announcement or comment. Further, Seller and Purchaser acknowledge the
sensitivity of this transaction to the Employees and no announcements or
communications with the public or these Employees shall be made without the
prior approval of Seller.
Section 6.12. Tax Reporting.
- ------------ -------------
Seller shall comply with all tax reporting obligations in connection with
transferred assets and liabilities on or before the Effective Time, and
Purchaser shall comply with all tax reporting obligations with respect to the
transferred assets and liabilities after the Effective Time.
ARTICLE VII
-----------
CONDITIONS TO PURCHASER'S OBLIGATIONS
-------------------------------------
The obligation of Purchaser to complete the transactions contemplated in
this Agreement are conditioned upon fulfillment, on or before the Closing, of
each of the following conditions:
24
Section 7.1. Representations and Warranties True.
- ----------- -----------------------------------
The representations and warranties made by Seller in this Agreement shall
be true in all material respects on and as of the Effective Time as though such
representations and warranties were made at and as of such time, except for any
changes permitted by the terms hereof or consented to by Purchaser.
Section 7.2. Obligations Performed.
- ----------- ---------------------
Seller shall (a) deliver or make available to Purchaser those items
required by Section 2.2 hereof, and (b) perform and comply in all material
respects with all obligations and agreements required by this Agreement to be
performed or complied with by it prior to or on the Effective Time.
Section 7.3. No Adverse Litigation.
- ----------- ---------------------
As of the Effective Time, no action, suit or proceeding shall be pending or
threatened against Seller which is reasonably likely to (a) materially and
adversely affect the business, properties and assets of the Banking Center, or
(b) materially and adversely affect the transactions contemplated herein.
Section 7.4. Regulatory Approval.
- ----------- -------------------
(a) Purchaser shall have received all necessary regulatory approvals of
the transactions provided in this Agreement, all notice and waiting
periods required by law to pass shall have passed, no proceeding to
enjoin, restrain, prohibit or invalidate such transactions shall have
been instituted or threatened, and any conditions of any regulatory
approval shall have been met.
(b) Such approvals shall not have imposed any condition which is
materially disadvantageous or burdensome to Purchaser.
ARTICLE VIII
------------
CONDITIONS TO SELLER'S OBLIGATIONS
----------------------------------
The obligation of Seller to complete the transactions contemplated in this
Agreement are conditioned upon fulfillment, on or before the Closing, of each of
the following conditions:
Section 8.1. Representations and Warranties True.
- ----------- -----------------------------------
The representations and warranties made by Purchaser in this Agreement
shall be true in all material respects at and as of the Effective Time as though
such representations and warranties were made at and as of such time, except for
any changes permitted by the terms hereof or consented to by Seller.
25
Section 8.2. Obligations Performed.
- ----------- ---------------------
Purchaser shall (a) deliver to Seller those items required by Section 2.2
hereof, and (b) perform and comply in all material respects with all obligations
and agreements required by this Agreement to be performed or complied with by it
prior to or on the Effective Time.
Section 8.3. No Adverse Litigation.
- ----------- ---------------------
As of the Effective Time, no action, suit or proceeding shall be pending or
threatened against Purchaser or Seller which might materially and adversely
affect the transactions contemplated hereunder.
Section 8.4. Regulatory Approval.
- ----------- -------------------
(a) Purchaser shall have received from the appropriate regulatory
authorities approval of the transactions contemplated herein, waiting
periods required by law to pass shall have passed, no proceeding to
enjoin, restrain, prohibit or invalidate such transactions shall have
been instituted or threatened, and any conditions of any regulatory
approval shall have been met.
(b) Such approvals shall not have imposed any condition which is
materially disadvantageous or burdensome to Seller.
ARTICLE IX
----------
TERMINATION
-----------
Section 9.1. Methods of Termination.
- ----------- ----------------------
This Agreement may be terminated in any of the following ways:
(a) by either Purchaser or Seller, in writing five calendar days in
advance of such termination, if the Closing has not occurred by August
28, 1997;
(b) at any time on or prior to the Effective Time by the mutual consent in
writing of Purchaser and Seller;
(c) by Purchaser in writing if the conditions set forth in Article VII of
this Agreement shall not have been met by Seller or waived in writing
by Purchaser within 31 business days following the date of all
approvals by regulatory agencies and after all statutory waiting
periods have expired;
(d) by Seller in writing if the conditions set forth in Article VIII of
this Agreement shall not have been met by Purchaser or waived in
writing by Seller within 31 business days following the date of all
approvals by regulatory agencies and after all statutory waiting
periods have expired;
26
(e) any time prior to the Effective Time, by Purchaser or Seller in
writing if the other shall have been in breach of any representation
and warranty in any material respect (as if such representation and
warranty had been made on and as of the date hereof and on the date of
the notice of breach referred to below), or in breach of any covenant,
undertaking or obligation contained herein, and such breach has not
been cured by the earlier of 30 calendar days after the giving of
notice to the breaching party of such breach or the Effective Time;
provided, however, that there shall be no cure period in connection
with any breach of Section 6.3 hereof, so long as such breach by
Purchaser was not caused by any action or inaction of Seller, and
Seller may terminate this Agreement immediately if regulatory
applications are not filed within 30 calendar days after the date of
this Agreement as provided in that Section;
(f) by Seller in writing at any time after any applicable regulatory
authority has denied approval of any application of Purchaser for
approval of the transactions contemplated herein; or
(g) in accordance with Section 1.10 hereof.
Section 9.2. Procedure Upon Termination.
- ----------- --------------------------
In the event of termination pursuant to Section 9.1 hereof, and except as
otherwise stated therein, written notice thereof shall be given to the
other party, and this Agreement shall terminate immediately upon receipt of
such notice unless an extension is consented to by the party having the
right to terminate.
If this Agreement is terminated as provided herein,
(a) each party will return all documents, work papers and other materials
of the other party, including photocopies or other duplications
thereof, relating to this transaction, whether obtained before or
after the execution hereof, to the party furnishing the same; and
(b) all information received by either party hereto with respect to the
business of the other party (other than information which is a matter
of public knowledge or which has heretofore been published in any
publication for public distribution or filed as public information
with any governmental authority) shall not at any time be used for any
business purpose by such party or disclosed by such party to third
persons.
Section 9.3. Payment of Expenses.
- ----------- -------------------
Should the transactions contemplated herein not be consummated because of a
party's breach of this Agreement, in addition to such damages as may be
recoverable in law or equity, the other party shall be entitled to recover from
the breaching party upon demand, itemization and documentation, its reasonable
outside legal, accounting, consulting and other out-of-pocket expenses.
27
ARTICLE X
---------
MISCELLANEOUS PROVISIONS
------------------------
Section 10.1. Amendment and Modification.
- ------------ --------------------------
The parties hereto, by mutual consent of their duly authorized officers,
may amend, modify and supplement this Agreement in such manner as may be agreed
upon by them in writing.
Section 10.2. Waiver or Extension.
- ------------ -------------------
Except with respect to required approvals of the applicable governmental
authorities, either party, by written instrument signed by a duly authorized
officer, may extend the time for the performance of any of the obligations or
other acts of the other party and may waive (a) any inaccuracies in the
representations and warranties contained herein or in any document delivered
pursuant hereto or (b) compliance with any of the undertakings, obligations,
covenants or other acts contained herein.
Section 10.3. Assignment.
- ------------ ----------
This Agreement and all of the provisions hereof shall be binding upon, and
shall inure to the benefit of, the parties hereto and their permitted assigns,
but neither this Agreement nor any of the rights, interests or obligations
hereunder shall be assigned by either of the parties hereto without the prior
written consent of the other.
Section 10.4. Confidentiality.
- ------------ ---------------
Seller and Purchaser agree that the Confidentiality Agreement effective as
of February 2, 1997, between Seller and Purchaser (the "Confidentiality
Agreement") shall survive the execution hereof and the consummation of the
transactions contemplated herein.
Section 10.5. Addresses for Notices, Etc.
- ------------ --------------------------
All notices, requests, demands, consents and other communications provided
for hereunder and under the related documents shall be in writing and mailed (by
registered or certified mail, return receipt requested), telegraphed, telexed,
telecopied or personally delivered (with receipt thereof acknowledged) to the
applicable party at the address indicated below:
If to Seller: NationsBank, N.A.
NationsBank Corporate Center
100 North Tryon Street
NCI-007-12-02
Charlotte, North Carolina 28255-0065
Fax Number: (704) 386-6416
Attn: Tracey M. Hembrick
28
with a copy to: Laura D. Fennell, Senior Counsel
NationsBank Corporate Center
100 North Tryon Street
NC1-007-20-01
Charlotte, North Carolina 28255-0065
Fax Number: (704) 386-6453
If to Purchaser: ABC Bancorp
310 First Street, S.E.
Moultrie, Georgia 31768
Attn: Mr. Kenneth J. Hunnicutt
Fax: (912) 890-2235
with a copy to: Rogers & Hardin
2700 International Tower
229 Peachtree Street, N.E.
Atlanta, Georgia 30303
Attn: Steven E. Fox, Esq.
Fax: (404) 525-2224
or, as to each party, at such other address as shall be designated by such
party in a written notice to the other party complying as to delivery with the
terms of this Section.
Section 10.6. Counterparts.
- ------------ ------------
This Agreement may be executed simultaneously in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
Section 10.7. Headings.
- ------------ --------
The headings of the Sections and Articles of this Agreement are inserted
for convenience only and shall not constitute a part thereof.
Section 10.8. Governing Law.
- ------------ -------------
This Agreement shall be governed by, and construed in accordance with, the
laws of the State of Georgia.
Section 10.9. Sole Agreement.
- ------------ --------------
Except for the Confidentiality Agreement, this Agreement and the exhibits
and attachments hereto represent the sole agreement between the parties hereto
respecting the transactions contemplated hereby and all prior or contemporaneous
written or oral proposals,
29
agreements in principle, representations, warranties and understandings between
the parties with respect to such matters are superseded hereby and merged
herein.
Section 10.10. Severability.
- ------------- ------------
If any provision of this Agreement is invalid or unenforceable, the balance
of this Agreement shall remain in effect.
Section 10.11. Parties In Interest.
- ------------- -------------------
Nothing in this Agreement, express or implied, expressly including, without
limiting the generality of the foregoing in any way, the provisions of Section
1.6(a) hereof, is intended or shall be construed to confer upon or give to any
person (other than the parties hereto, their successors and permitted assigns)
any rights or remedies under or by reason of this Agreement, or any term
provision, condition, undertaking, warranty, representation, indemnity, covenant
or agreement contained herein.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their authorized officers as of the date first written above.
NATIONSBANK, N.A.(SOUTH)
By: /s/ A. Allen Kendle
---------------------------
Name: A. ALLEN KENDLE
---------------------------
Title: SENIOR VICE PRESIDENT
---------------------------
ABC BANCORP
By: /s/ Kenneth J. Hunnicutt
----------------------------
Name: KENNETH J. HUNNICUTT
----------------------------
Title: PRESIDENT & CEO
----------------------------
30
PURCHASE AND ASSUMPTION AGREEMENT
Between
NATIONSBANK, N.A.(SOUTH)
and
ABC BANCORP
EXHIBIT LIST
Exhibit No. Description
----------- -----------
1.1(b) List of Excluded Assets
1.4(k) Power of Attorney
1.6(c) Severance Benefits
2.2(b)(2) Form of Bill of Sale
2.2(b)(3) Form of Assignment and
Assumption Agreement
2.2(b)(14) Form of Closing Statement
4.7 Real Property Exceptions
EXHIBIT 1.1(b)
--------------
PURCHASE AND ASSUMPTION AGREEMENT
Between
NATIONSBANK, N.A. (SOUTH)
and
ABC BANCORP
LIST OF EXCLUDED ASSETS
All teller and platform automated computer equipment
Signature machine
Check protector
Rate board
Mandatory sign board
Furniture Fixtures and Equipment at the Banking Center not compatible with
Purchaser's banking operations; provided, however, that (1) Purchaser shall
notify Seller of all such assets in writing at least 45 days prior to the
Effective Time, and (2) the aggregate Net Book Value of all such assets shall
not exceed $10,000.
EXHIBIT 1.41(K)
---------------
PURCHASE AND ASSUMPTION AGREEMENT
BETWEEN
NATIONSBANK, N.A. (SOUTH)
AND
ABC BANCORP
POWER OF ATTORNEY
THIS POWER OF ATTORNEY is dated this __________ day of February 1997, by
NationsBank, N.A. (South), a national banking association ("NationsBank"), to be
effective as of 2:00 p.m. on ____________ ______ 199_.
WITNESSETH:
-----------
WHEREAS, NationsBank and ABC Bancorp ("ABC") have entered into a Purchase
and Assumption Agreement dated as of ______ ____, 199_ (the "Agreement"), which
provides for the sale by NationsBank to ABC of certain personal property; and
WHEREAS, in a Bill of Sale to ABC dated _________ ____, 199_ (the "Bill of
Sale"), NationsBank has agreed, from time to time, at the request of ABC to
execute, acknowledge and deliver to any and all instruments, documents,
endorsements, assignments, information, materials and other papers that may be
reasonably required to (i) transfer to ABC certain Assets (as defined in the
Bill of Sale) being acquired by ABC pursuant to the Agreement, including loans
and the collateral therefor to the extent of NationsBank's interest in such
collateral and files and records relating to such loans, (ii) enable ABC to
bill, collect, service and administer the loans transferred thereby and (iii)
give full force and effect to the intent and purpose of the Bill of Sale.
NOW, THEREFORE, for good and valuable consideration, receipt of which is
hereby acknowledged, NationsBank hereby irrevocably appoints and authorizes the
President or any Vice President, or the Secretary or any Assistant Secretary, of
ABC as its attorney-in-fact solely for the purpose of endorsing and recording,
pursuant to the Bill of Sale, certificates of title for vehicles and similar
documents, provided, such power of attorney is not intended to and does not
--------
convey to ABC any right to endorse or record any documents of title relating to
collateral other than collateral transferred pursuant to the Bill of Sale as
described in the preceding paragraph.
IN WITNESS WHEREOF, NationsBank has caused this Power of Attorney to be
duly executed by its duly authorized officer as of the day and year first above
written.
WITNESSES: NATIONSBANK, N.A. (SOUTH)
________________________________ By:________________________________
________________________________
________________________________ Its:_______________________________
STATE OF_______________________)
) PROBATE
COUNTY OF________________________________)
PERSONALLY APPEARED before me the undersigned witness and made oath that
s/he saw the within named NationsBank, N.A. (South), by ___________________, its
__________________, sign, and as its act and deed deliver the within Power of
Attorney and that s/he with the order witness whose name is subscribed above
witnessed the execution thereof.
WITNESS
Sworn to before me this
______th day of ______, 199_.
_____________________________
Notary Public for __________________
My Commission Expires:___________
EXHIBIT 1.6(c)
--------------
PURCHASE AND ASSUMPTION AGREEMENT
Between
NATIONSBANK, N.A.(SOUTH)
and
ABC BANCORP
SEVERANCE BENEFITS
One week for every year of service with Seller.
EXHIBIT 2.2(b)(2)
-----------------
PURCHASE AND ASSUMPTION AGREEMENT
Between
NATIONSBANK, N.A.(SOUTH)
and
ABC BANCORP
BILL OF SALE
THIS BILL OF SALE is dated this ____ day of _________,199_, by NationsBank,
N.A. a national banking association ("Seller").
W I T N E S S E T H:
-------------------
WHEREAS, Seller and ABC Bancorp a Georgia corporation, have entered into a
Purchase and Assumption Agreement dated as of February __, 1997 (the
"Agreement"), which provides for the sale by Seller to Purchaser of certain
personal property and loans related to Seller's offices located in Douglas,
Georgia (the "Banking Center"), 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 Purchaser all of its right, title and interest in
and to the following assets (the "Assets");
(a) All furniture, fixtures, equipment and other tangible personal
property located in the Banking Center, except for those items listed
in Exhibit 1.1(b) of the Agreement;
(b) All of the loans maintained, serviced and listed in Seller's general
ledger as loans of the Banking Center (except for those loans
described in Section 1.4(b) of the Agreement), a list of such specific
loans to be attached hereto on the Post-Closing Balance Sheet Delivery
Date (the "Loans"); and
(c) All of Seller's files and records related to the Loans and the
Equipment Leases, Deposit Liabilities and other liabilities (as such
terms are defined or described in the Agreement).
(d) All maintenance, service, operating and other contracts or agreements
relating to the operation of the Banking Center (to the extent that
such contracts or agreements by their terms or under applicable law
are assignable to Purchaser); and
(e) Except as provided in Section 1.1(b), all business of the Banking
Center related to the transferred assets referred to in Section 1.1(a)
and the goodwill associated therewith.
Seller, for itself and its successors and assigns, does hereby covenant and
agree to and with Purchaser and its successors and assigns that it (i) is seized
of, and has the right to convey to Purchaser, 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 Purchaser, execute, acknowledge and deliver to Purchaser any and
all further instruments, documents, endorsements, assignments, information,
materials and other papers that may be reasonably required to transfer the
Assets to Purchaser, to enable Purchaser to bill, collect, service and
administer the Loans and to give full force and effect to the full intent and
purposes of this Bill of Sale.
IN WITNESS WHEREOF, Seller has caused this Bill of Sale to be duly executed
by its duly authorized officers and its corporate seal to be affixed hereto, all
as of the day and year first above written.
NATIONSBANK, N.A.(SOUTH)
By: _____________________________
Name: ___________________________
Title: __________________________
ATTEST:
___________________________________
________________Secretary
EXHIBIT 2.2(b)(3)
-----------------
PURCHASE AND ASSUMPTION AGREEMENT
Between
NATIONSBANK, N.A.(SOUTH)
and
ABC BANCORP
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT is entered into this ___day of
___________, 199_, by and between Nationsbank, N.A.(South), a national banking
association ("Seller"), and ABC Bancorp, a Georgia corporation ("Purchaser").
W I T N E S S E T H:
-------------------
WHEREAS, Seller and Purchaser have entered into a Purchase and Assumption
Agreement dated as of _________, 199_ (the "Agreement"), which provides for the
assignment by Seller of all of its rights and interests in and to certain
leases, contracts, deposit accounts and by Seller of all of its rights and
interests in and to certain leases, contracts, deposit accounts and other
liabilities related to Seller's offices located in Douglas, Georgia (the
"Banking Center"), and the assumption by Purchaser of all of Seller's
liabilities and obligations thereunder, all as set forth in the Agreement;
NOW, THEREFORE, in consideration of the foregoing, and for other good and
valuable consideration, receipt of which is hereby acknowledged by Seller and
Purchaser, Seller hereby assigns, transfers and sets over to Purchaser all of
Seller's rights and interest to, and Purchaser does hereby assume all of
Seller's liabilities and obligations in connection with, the following assets
(the "Assets");
(a) All equipment leases, except for leases listed on Exhibit 1.1(b) of
the Agreement, for equipment located at the Banking Center (the
"Equipment Leases");
(b) All deposit accounts located at the Banking Center, except for those
deposit accounts and liabilities described in Section 1.3(b) of the
Agreement (the "Deposit Liabilities"); and
(c) Safe Deposit Contracts.
This Assignment and Assumption Agreement shall be binding upon, and shall
inure to the benefit of, Seller, Purchaser and each of their 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 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 Georgia.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Assumption Agreement to be executed by their duly authorized officers and their
corporate seals to be affixed hereto, all as of the day and year first above
written.
NATIONSBANK, N.A.(SOUTH)
By: ____________________________
Title: _________________________
ATTEST:
______________________________
___________Secretary
ABC BANCORP
By: ____________________________
Title: _________________________
ATTEST:
______________________________
___________Secretary
EXHIBIT 2.2(b)(14)
------------------
PURCHASE AND ASSUMPTION AGREEMENT
Between
NATIONSBANK, N.A.(SOUTH)
AND
ABC BANCORP
CLOSING STATEMENT
(Pre-Closing Balance Sheet as of _______)
CASH DUE PURCHASER FOR:
Deposit liability (including
accrued interest) _______
Pro rata safe deposit box rental _______
Pro rate real property taxes _______
Deed stamps _______
Total Cash due Purchaser _______
CASH DUE SELLER FOR:
Real and Personal Property _______
Coins and currency _______
Premium on deposits _______
Loans and other assets
(including accrued interest) _______
Pro rata FDIC insurance _______
Total Cash due Seller _______
Net cash due (Purchaser) (Seller) _______