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EXHIBIT 10.1
TERMINATION AGREEMENT
BY AND BETWEEN
EL BANCO FINANCIAL CORPORATION
FORMERLY KNOWN AS
NUESTRA TARJETA DE SERVICIOS, INC.
(BUYER)
AND
NBOG BANCORPORATION, INC.
(SELLER)
DATED AS OF
OCTOBER 25, 2006
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TERMINATION AGREEMENT
THIS
TERMINATION AGREEMENT, dated October 25, 2006, is intended to
formally
terminate the Agreement And Plan Of Merger (the "Agreement") dated
as of May 5,
2006, by and between El Banco Financial Corporation (formerly known
as Nuestra
Tarjeta de Servicios, Inc.), a Georgia corporation ("Buyer") and
NBOG
Bancorporation, Inc., a Georgia corporation ("Seller").
PREAMBLE
WHEREAS, Section 9.1(a) of the Agreement permits the termination of
the
Agreement upon the mutual written agreement of the Buyer and
Seller;
WHEREAS, the Buyer and Seller intend for this Termination Agreement
to
document the mutual agreement of the Buyer and Seller to terminate
the
Agreement;
NOW,
THEREFORE, in consideration of the mutual warranties,
representations,
covenants, and agreements set forth herein, and other good and
valuable
consideration and the receipt and sufficiency of which are
acknowledged, the
Parties, intending to be legally bound, agree as follows:
ARTICLE 1
TERMINATION
1.1 The Agreement shall be deemed terminated as of the date hereof
and
the Merger contemplated thereunder shall be deemed abandoned as of
the date
hereof, subject to Section 9.2 of the Agreement.
1.2
(a) Buyer acknowledges
that it is not currently in negotiations
and is not party to any agreement to acquire any other
depository institution; and
(b) Buyer shall notify SunTrust Banks of its intention not to
undertake the Deconversion transaction, as contemplated in the
Transition Agreement between Buyer and SunTrust Banks dated
June 14, 2006 ("Transition Agreement").
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ARTICLE 2
SURVIVING SECTIONS OF THE AGREEMENT
Section 9.2 of the Agreement provides that in the event of the
termination and abandonment of this Agreement by either Buyer or
Seller pursuant
to Section 9.1, this Agreement shall become void and have no
effect, except that
(i) the provisions of Sections 7.5, 9.2, 9.3, 10.2 and 10.3 shall
survive any
such termination and abandonment, and (ii) no such termination
shall relieve the
breaching Party from Liability resulting from any breach by that
Party of this
Agreement.
ARTICLE 3
TERMINATION FEE
Notwithstanding, Article 2 above and Section 9.3 of the Agreement,
Buyer
and Seller each confirm that by entering into this Termination
Agreement, that
neither party has any obligation under Section 9.3 of the Agreement
with respect
to the payment of a Termination Fee.
ARTICLE 4
MUTUAL WAIVERS AND RELEASE
4.1
Notwithstanding Article 2 above and Section 9.2 of the Agreement,
in
order to bring closure to the transactions contemplated by the
Agreement, Buyer
on behalf of itself, directors, officers, employees, successors and
assigns, and
Seller on behalf of itself, its subsidiary The National Bank of
Gainesville and
their directors, officers, employees, successors and assigns
(collectively, the
"Releasing Parties") without admitting any fault or liability on
the part of any
other Releasing Party, determined it is in their best interest to
resolve any
and all claims and disputes that have arisen or could arise among
them as a
compromise and settlement of any and all claims.
4.2
Accordingly, the Releasing Parties hereby release one another from
any
and all claims, demands, liabilities, actions or causes of action,
suits,
proceedings, indemnities, covenants, contracts, agreements, acts
occurrences,
omissions, debts, duties, compensation, costs, expenses, attorneys'
fees, liens,
sums of money, and damages or other obligations whatsoever, which
any Releasing
Party has, has had, or might have in the future, whether known or
unknown,
liquidated or unliquidated, contingent or non-contingent, suspected
or
unsuspected, past or present, disclosed or undisclosed, directly or
indirectly,
foreseeable or unforeseeable, in law, equity, or otherwise, whether
based in
contract, tort, or any other theory of recovery, whether for
compensatory,
punitive or other damages, which have arisen, or which might arise
in the
future, including without limitation, arising out of, or related
to, the
Agreement ("Released Claims").
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4.3.
Each Releasing Party does hereby jointly and severally, fully
and
forever, irrevocably remise, release, acquit, satisfy and forever
discharge the
other Releasing Party, its parent and subsidiary corporations,
shareholders,
directors, officers, employees, agents, servants, affiliates,
successors and
assigns from each of the Released Claims.
4.3.
Each Releasing Party expressly agrees that it will not, directly
or
indirectly, file or cause to be filed, either individually or in
any
representative capacity, any claim now or forevermore against any
Releasing
Party which claim could have been filed against any Releasing Party
as of the
date of the
