Ameris Bancorp has acquired its third failed bank from the Federal Deposit Insurance Co. in the last eight months.

Represented by Jody L. Spencer at Rogers & Hardin, Moultrie-based Ameris announced that a subsidiary has agreed to assume $134 million in deposits and acquire about $142.3 million in the assets of Satilla Community Bank, a single-office financial institution based in St. Marys, in South Georgia near Cumberland Island and the Florida state line.

Spencer said he is not yet sure exactly what Ameris is paying for the bank. "That is one of a couple of numbers I don't have yet," he said, adding that the numbers will appear in an 8-K Ameris is due to file with the Securities and Exchange Commission today.

The Georgia Department of Banking and Finance declared the Satilla bank closed on May 14, appointing the FDIC, which was represented in this transaction by its in-house counsel, as receiver. Ameris reopened the bank on Monday as one of its now-54 branches in Georgia, Florida, Alabama and South Carolina.

Ameris agreed to pay the FDIC a premium of 0.19 percent to assume all of Satilla Community Bank's deposits, and the two entities entered into a loss-share transaction on about 80 percent of the assets, as per FDIC policy, Spencer said.

Spencer also said that deals such as this ramp up several weeks prior to a bank's closure, when the FDIC contacts financial institutions it thinks might be a good fit as an acquirer. The FDIC, he said, invites banks to bid on the soon-to-be-closed bank, and other than the price for assets and liabilities to be acquired, there's not much to negotiate under the FDIC's structure.

"It's quite a streamlined process," he said.

FDIC lawyers do not comment on their transactions.

The deal was funded in part by an underwritten public offering of Ameris stock that grossed $90 million when it closed April 20. SEC documents dating to the offering's announcement, in March, said Ameris planned to use the net proceeds "for general corporate purposes, including to fund possible future acquisitions of other financial services businesses (which may include FDIC-assisted transactions)."

Ameris, a financial holding company and the parent company of Ameris Bank, has recent experience with FDIC-assisted transactions in Georgia. In October, it bought Lawrenceville-based American United Bank, which had $85.7 million in loans and $100.3 million in deposits. A month later, Ameris purchased United Security Bank, with branches in Woodstock and Sparta, which had $108.4 million in loans and $140 million in deposits.

While Ameris will pay the FDIC for the Satilla bank, in these prior two transactions, the FDIC paid Ameris a total of about $41.3 million.

Rogers & Hardin was involved in both deals.

According to information from the FDIC, 27 banks have closed in Georgia in the past 12 months, eight of them this year.

United Community Bank has done something a lot of financial institutions might envy: It has sold $103 million of non-performing mortgages and bank-owned properties to an investor at book value and set itself up for a continuing cash infusion from stock sales in the bargain.

One of UCB’s lawyers, James W. Stevens at Kilpatrick Stockton, referred to the complex deal as a “new, new thing … it’s a new form of transaction.”

He said UCB, which is owned by Blairsville-based United Community Banks Inc., the third-largest bank holding company in Georgia, has been a client of the firm’s for more than 20 years. The bank and its lawyers put together a multipart deal, first agreeing to sell about 25 percent of its non-performing assets—primarily residential and commercial loans and other real estate owned properties—to New York-based Fletcher International Inc., represented in this deal by the New York and Palo Alto, Calif., offices of Skadden Arps Slate Meagher & Flom.

“They sold the assets at book value,” Stevens said. “You can move anything if you want to sell at a deep discount … so selling at book value was a big plus for them.”

Another part of the deal was a stock purchase agreement, which gave Fletcher the right to buy $65 million of the holding company’s preferred convertible stock at $1,000 per share, according to an 8-K filed with the Securities and Exchange Commission. Fletcher also gets a warrant in connection with the asset sale allowing it to buy common-stock-equivalent junior preferred stock exercisable up to $30 million. An additional $35 million will be granted if all the preferred stock is purchased.

If Fletcher doesn’t buy all the preferred stock, which is convertible to common stock, by May 2011, it must pay UCB 5 percent of the amount it did not purchase and an additional 5 percent of any amount not purchased by May 2012, according to one of UCB’s 8-K filings.

Another aspect of the deal, according to the SEC filings, was that UCB loaned about $82.4 million of the purchase price, and Fletcher paid $20.6 million in cash. Fletcher also deposited another $18 million with the bank to pre-fund an estimated three years’ of interest, principal amortization and other costs.

“This was something that came together through, honestly, just the persistence and creativity of the officers at United Community Banks,” Stevens said, speaking of CEO Jimmy Tallent, CFO Rex S. Schuette and Chief Risk Officer David Shearrow.

The deal came together quickly. Stevens said discussions began last year, but most of the work was done in a four-to-six-week period this spring thanks to what he jokingly called 12-hour “half-days” of work for the Kilpatrick team, which included Atlanta partners Hilary P. “Hil” Jordan and Richard R. Cheatham, and partner W. Randy Eaddy in Winston-Salem.

The deal needed to move quickly, Stevens said, because the stock aspect requires shareholder approval, and this meant relevant information had to appear in UCB’s April 15 proxy statement to prepare shareholders to vote on May 26.

“There’s a potential issuance of common stock as a result of this transaction in excess of 20 percent of the existing common stock,” he said. If the shareholders don’t approve that potential issuance, he said, “The deal will be capped at 19.99 percent.”

A major New York firm headed South recently to help with the acquisition of a troubled Georgia bank.

Wachtell, Lipton, Rosen & Katz lawyers represented Columbia, S.C.-based SCBT Financial Corp. in its agreement with the Federal Deposit Insurance Corp. to assume all deposits and some of the liabilities of Community Bank & Trust, based in Cornelia.

The Georgia Department of Banking and Finance closed the bank in January, and appointed the FDIC as receiver. Community Bank & Trust was founded in 1900 and operates 36 banks in 10 Georgia counties. Based on a June 2009 FDIC summary of deposits, ranked 7^th in market share statewide.

According to a transaction overview SCBT provided in a Securities and Exchange Commission filing, the bank purchased approximately $1 billion in assets and $753 million in loans, with the FDIC assuming 80 percent of losses—which include acquired loans and foreclosed real estate—up to a threshold of $233 million. The FDIC will assume 95 percent of losses in excess of that. The filing also said SCBT assumed approximately $1.1 billion in deposits, for which the bank did not pay a premium.

Matthew M. Guest, the lead Wachtell partner for SCBT on the deal, did not return a call seeking comment. Community Bank & Trust was represented by FDIC in-house counsel.

The transaction closed Jan. 29.

Troutman Sanders is representing Taylor Bean & Whitaker Mortgage Corp. in the bank’s attempt to reclaim assets frozen by its primary bank, Colonial BancGroup. Colonial, which is the subject of several governmental investigations, filed for Chapter 11 reorganization in August and is in receivership.

Ocala, Fla.-based Taylor, Bean itself petitioned for reorganization in U.S. Bankruptcy Court for the Middle District of Florida on Aug. 24, and had a variety of troubles prior to that. In early August, the Federal Housing Administration suspended Taylor Bean’s authority to issue FHA-insured loans; then Ginnie Mae and Freddie Mac suspended the bank as an issuer of mortgage-backed securities and mortgage sales and service, transferring their servicing from Taylor Bean to other providers. As a result, the company, which was once the largest non-depository-owned mortgage lender in the United States, laid off 2,000 of its 2,400 employees. 

“The company believes that these events are related to various investigations surrounding the failure of Colonial Bank, which for years was Taylor Bean’s primary bank,” the company said in a press release. “[A]pproximately 100 Taylor Bean bank accounts were frozen by Colonial Bank. This action created myriad problems in processing borrower payments and making payments on their behalf—such as homeowner’s insurance premiums and real estate taxes.”

Tampa, Fla.-based Stichter, Reidel, Blain & Prosser is Taylor Bean’s primary Chapter 11 counsel, but Troutman Sanders has been approved as special counsel, serving, according to its application to employ, as “general outside counsel,” which includes working to unfreeze the bank’s custodial accounts, now locked in the Alabama-based Colonial’s Federal Deposit Insurance Corp. receivership.

Troutman, according to the application, has represented Taylor Bean since 2007 as litigation counsel, with representation expanding in June to include responding to allegations of default, government investigations and regulatory actions, among other things.

Partners expected to be involved in the engagement, along with their practice areas and hourly rates, include: David J. Dantzler, governmental regulatory actions, investigations and litigation ($535); Jeffrey W. Kelley, bankruptcy and litigation ($600); Ezra H. Cohen, bankruptcy ($640); Brian Lavine, governmental investigations ($575); and David W. Ghegan, corporate governance and bank regulation ($475).

As SunTrust Banks Inc. General Counsel Ray Fortin tells it, in the course of a single, hectic weekend, a phalanx of lawyers and investment bankers managed to put together the bank's recent offering of 124.2 million shares of common stock—resulting in more than $1.5 billion in new capital.

“It did move fast,” he said. “We had a shelf registration statement which permitted us to do this, and we moved it pretty quickly.”

A team of lawyers from King & Spalding, led by partner Keith M. Townsend, represented the bank. The underwriters' lead counsel was Mark J. Welshimer at Sullivan & Cromwell in New York.

The impetus for the offering was the federal government's so-called stress test on the nation's 19 largest banks, including SunTrust, to determine how they would fare if the economic situation worsens. “The Fed indicated that we needed to raise $2.2 billion in common equity,” Fortin said. “We were well capitalized, but they wanted to change the composition of capital.”

Under the terms of the stress test, completed May 7, the bank had 30 days to submit a plan to raise capital, and until Nov. 8 to carry it out. But SunTrust, which like many other financial institutions was hit with soured real estate loans and resulting lower share prices, moved much faster than that.

Fortin said the bank submitted a capital plan and in May launched an at-the-market transaction, meaning that SunTrust could release small amounts of shares into the market, an approach which ultimately yielded about $258 million. SunTrust also sold some Visa shares for a net after-tax gain of $70 million. But eventually, Fortin said, “We just decided to get it all done.”

So, he said, SunTrust executives consulted with the bank's board and with investment bankers at Morgan Stanley, Sandler O'Neill, SunTrust Robinson Humphrey and Goldman Sachs. Starting on the last Friday in May, in-house lawyers from SunTrust, with the King & Spalding team and counsel for the underwriters, put the deal together and launched the common stock offering four days later, on June 1.

“Because we were in the capital-raising mode, we had already been discussing with the underwriters and our board the various capital-raising options, so all we really did was change the methodology of how we'd do it,” he said. “We were already in the process, so that's another reason it moved relatively quickly.”

SunTrust's shelf registration statement—documents filed with the Securities and Exchange Commission that outline the basics of stock offerings a company might wish to pursue in the future—also helped speed the process. That's because when the bank decided to launch this latest offering, it did not need to start from scratch with the SEC, and instead needed only to produce a prospectus supplement to describe exactly what it was doing, Fortin said.

Fortin called the most recent stock offering a success because shares from the new offering sold for roughly what existing shares were trading for on the open market. That's a good result, he said, because normally such shares would be purchased at a discount when sold in large blocks to institutional investors. On June 1, the opening date of the new offering, shares began selling at about $13; by June 5, the last day of the offering, prices had risen to almost $17, according to Google Finance.

Now, Fortin said, SunTrust needs to raise about $100 million more to meet its obligations under the Federal Reserve's Supervisory Capital Assessment Program, known as SCAP. He said the bank was looking at a variety of ways to do that.

“We have … an exchange offer where we are offering to buy with cash some of our preferred stock,” he said. “That's outstanding, and that is actually going to produce some gains and thereby produce some capital. There's also additional discussions with the Fed as to … things that they will allow to be treated as capital, such as tax-loss carry-forwards.”

A tax-loss carry-forward, he said, allows the bank to apply tax losses in one year to earnings in another, thereby lowering its tax burden.

“We're highly confident that we are basically done,” he said of the bank's mandate to comply with the stress test. “We now are very, very, very solidly capitalized. You know we have enough capital to go through what the Fed called the most adverse scenario and still be well-capitalized. So we're in great shape.”

Shortly before noon on Tuesday, the Equitable Building, one of the city's landmark office towers, was sold for $29.5 million at auction on the steps of the Fulton County Courthouse.

The building was purchased by 100 Peachtree Street Atlanta, a limited liability corporation formed by the building's lender, Capmark Bank, for the purpose of acquiring the building, according to Sutherland Asbill & Brennan partner William G. Rothschild, who represents Capmark. There were no competing bids.

Sutherland associate Jason C. Kirkham read the auction notice and placed the winning bid for the lender.

Capmark foreclosed on the building's borrower, Equastone LLC, in early April. According to Rothschild, the loan amount outstanding is about $43.2 million.

The Atlanta firm Slutzky Wolfe & Bailey is representing a developer whose retail and movie theater complex near Hilton Head Island has fallen into foreclosure. 

Sea Turtle Entertainment LLC this month defaulted on a $23.5 million loan for its Berkeley Place shopping center in Bluffton, S.C., according to the Island Packet newspaper. Wells Fargo Bank has begun foreclosure proceedings against Sea Turtle, the Island Packet said, citing records in Beaufort County Circuit Court.

Slutzky Wolfe & Bailey commercial real estate partner Brad Wolfe is representing Sea Turtle in the matter, the paper said. Kilpatrick Stockton partner James Pulliam in Charlotte is counsel to Wells Fargo. Wells Fargo filed its complaint to initiate foreclosure on May 15.

Berkeley Place includes a movie theater and an Outback Steakhouse. The shopping center located in Bluffton, about 10 miles northwest of Hilton Head Island.

A group of Atlanta attorneys from Paul, Hastings, Janofsky & Walker advised a struggling Florida bank on its acquisition by a private equity group after it was shut down by federal regulators.

In the deal, BankUnited Financial Corp. of Coral Gables, Fla., was acquired by a consortium of private equity funds, including WL Ross & Co., Carlyle Investment Management LLC, Blackstone Capital Partners and Centerbridge Capital Partners LP. Former North Fork Bancorp Chief Executive Officer John Kanas was also an investor and will become BankUnited’s new CEO.

The WL Ross/Kanas group beat out a competing offer by Goldman, Sachs & Co. and TD Bank, according to newsletter The Deal.

BankUnited had assets of $12.8 billion and deposits of $8.6 billion as of May 2. BankUnited’s failure will cost the FDIC about $4.9 billion.

The reorganized BankUnited will retain its status as the largest banking institution with a Florida headquarters, according to the Federal Deposit Insurance Corp. It operates 86 branches primarily in south Florida.

Paul Hastings partner Walter Jospin was lead adviser to BankUnited’s board of directors. The Paul Hastings group was also regulatory and bankruptcy counsel to BankUnited’s holding company. Paul Hastings banking partner John Douglas and corporate partner Erik Belenky in Atlanta, and bankruptcy partner Richard Chesley in Chicago worked with Jospin.

Skadden, Arps, Slate, Meagher & Flom partners David Ingles and William Rubenstein in New York and William Sweet in Washington advised Kanas and WL Ross, Carlyle, Blackstone and Centerbridge. Simpson Thacher & Bartlett also advised Blackstone, Carlyle and Centerbridge. Wachtell, Lipton, Rosen & Katz also advised WL Ross.

The BankUnited deal is the second acquisition of a bank by private equity investors this year. Banks have been failing in the U.S. at a rapid pace; BankUnited is the 34^th  bank insured by the FDIC to be closed this year.

They say there’s a credit crunch, but you wouldn’t know that to look at the $775 million in loans that IntercontinentalExchange, Inc., just landed with the help of a team of lawyers from Locke Lord Bissell & Liddell.

According to an 8-K for the Atlanta-based company, which operates Internet-based marketplaces to trade futures, over-the-counter energy and commodity contracts and derivatives, the publicly-traded ICE swapped some outstanding credit facilities for the new $775 million in loans provided by a syndicate of banks. The syndicate was led by Wachovia Bank, N.A., and Bank of America, N.A.

Locke Lord partner Philip A. Cooper was lead outside counsel on the deal, working with ICE’s Associate General Counsel Andrew J. Surdykowski and Assistant General Counsel David C. Clifton, as well as Locke Lord associates Valerie Barton and Alexis Summers.

The banks were represented by partner Jeffrey A. Henson and associate Neill G. McBryde Jr. with Robinson Bradshaw & Hinson in Charlotte.

The new credit facilities provide for a 364-day senior revolving credit facility in the aggregate principal amount of $300 million, a three-year senior revolving credit facility in the aggregate principal amount of $100 million, a three-year senior term loan facility in the aggregate principal amount of $200 million and an amended senior term loan facility in the aggregate principal amount of $175 million.

Members of the bankruptcy bar in Atlanta have repeatedly told the Deal Watch blog that most of the exciting action in restructuring these days takes place outside of bankruptcy court.

Those types of deals, however, are hard to find and even harder to report, since they typically don’t involve publicly accessible court documents. And when documents can be found, attorneys who are working on the transactions are loathe to discuss them, since their clients aren’t keen to air their dirty laundry in public.

Sometimes, though, an out-of-court restructuring will bubble to the surface. That was the case with a $17 million loan workout handled by Charles J. “Chuck” Driebe of Jonesboro. Driebe is a partner, along with his son, Charles Driebe Jr., in the firm Driebe & Driebe.

Driebe was lead counsel to Deerfield Group LLC of Hampton, Ga. Deerfield renegotiated the terms of a $17 million mortgage it held on more than 200 acres in south Fulton, Clayton and Henry counties, Driebe said. Deerfield, which was in default the loan, restructured the terms with the two lenders, Palmetto Capital Corp. and Nexity Financial Corp.’s Nexity Bank.

Chamberlain, Hrdlicka, White, Williams & Martin partner Jimmy Paul advised Deerfield on issues related to bankruptcy law, Driebe said.

Cushing, Morris, Armbruster & Montgomery partners Mac Cushing and Parker Gilbert advised Palmetto Capital, according to court records.

Paul, Cushing and Gilbert did not return calls and emails seeking comment.

Nexity Bank was advised by McKenna Long & Aldridge partner Gary Marsh, with assistance from partner Jimmy Barkin and senior counsel Thomas Hall. Marsh declined to discuss his work for Nexity.

Like many banks, Nexity, of Birmingham, Ala., has been struggling due to the economic downturn. The Federal Deposit Insurance Corp. and the State of Alabama Banking Department issued a cease-and-desist order to Nexity this month, according to the Birmingham News.